Climate Change and Oregon Law: What is to Be Done?

Abstract

While some deny the fact or intensity of climate change, science affirms that reality. However in the United States, lobbyists and inertia hinder legal responses to this phenomenon in Congress and the Supreme Court tends to limit the effect of public agency action through manipulation of the law of takings and the irregular review of federal agency action, practical responses to climate change in the United States are more often found at the state level, for states traditionally govern the law of property and land use on the everyday level and provide for multiple laboratories to approach climate change solutions. Common law and state statutory law regarding property may be static or dynamic. The Supreme Court has intimated that too quick a change in property law may result in a “taking,” but, over time, most state legislatures and courts have evolved the law of property to be responsive to multiple social goals. The tension here will be between those who view property law as essentially static or dynamic. As the effects of climate change increase, property doctrines involving change of the interface between land and water (including those of accretion, reliction and avulsion) will also change. Moreover, the responsibilities of property owners to avoid nuisance activities and bear costs of necessary infrastructure as an incidence of ownership, will also necessarily change. Similarly, land use must also respond to climate change in terms of natural resources (the types and impacts of farm and forest uses, preservation of wetlands, natural areas and other specific resources), the allocation and use of water, coastal lands protection and efficiency of urban land uses all lend themselves to state direction and local government implementation of climate change goals and strategies. Issues to be addressed in the United States include the flexibility of property and planning law to science and social need, the responsiveness of takings law and judicial review of administrative action, and the inclusion of climate change considerations in land use and infrastructure decisions (which involve the type of energy facilities chosen, public liability and the use of insurance to allow restoration of structures destroyed by natural disasters, and the need for compact, energy-efficient cities). We conclude that three major principles must be considered and applied by states: sequestration, mitigation and adaptation. Sequestration raises the public consciousness of the accumulation of CO2 that must be accommodated, while mitigation and adaptation emphasize to the public a balance to be achieved with every public action. State and local government action is much more likely in the short and medium term to achieve an adequate response to climate change than that of the federal government.