This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.
[J.B. Ruhl is the David Daniels Allen Distinguished Chair in Law at Vanderbilt University Law School]
In
Avoiding Adaptation Apartheid, Margaux Hall and David Weiss assemble a compelling argument for viewing climate change adaptation on the international level as a human right. Of particular importance are their emphasis on the distinction between climate change mitigation (measures to reduce climate change) and adaptation (measures to respond to climate change) and their focus on the responsibilities of states, including leaders of developing nations, to provide equitable and effective adaptation measures within their capacity. For too long climate change policy at all scales has been dominated by a mitigation focus, leaving a widening adaptation deficit that threatens to put many vulnerable populations in harm’s way. Hall and Weiss join a growing chorus of policy makers and scholars calling for increased attention to the adaptation needs of a multitude of impoverished people who, owing to the paralysis in mitigation policy, face certain disruption of their communities and cultures. But Hall and Weiss go beyond the standard solutions of shifting money from the developed nations, which are most responsible for and best equipped to manage climate change, to the developing nations least responsible for climate change and poorly situated to withstand its harms. Rather, they also tackle the difficult topic of what to expect from leaders of those developing nations as they decide how to deploy adaptation resources. The human rights lens they use for defining, measuring, and enforcing those duties seems utterly appropriate.
But I am left asking, is this anything exceptional for the law? Surely climate change adaptation presents immense and complex policy questions for subnational, national, and international institutions. This, however, does not necessarily mean climate change adaptation requires anything special of law, or will lead to profound transformation of legal doctrine. For example, in
Climate Change Meets the Law of the Horse, Jim Salzman of Duke Law School and I recently examined the impact of climate change adaptation on domestic law in the United States. Using a scenario of climate change impacts drawn from a variety of scientific analyses, we asked which fields of law would likely feel the most stress and whether there would be an impetus for creation of a new distinct field devoted to climate change adaptation. When one plays out that question, many fields of law quickly drop out of the picture. For example, it is a hard case to make that climate change will present novel and complex questions for family law. The law of coastal property rights, by contrast, is more likely to need to evolve to the new circumstances of sea level rise. But as for a distinct substantive field of climate change adaptation law, we could think of no reason one would be demanded. On the other hand, the demand for equitable allocation of adaptation resources in the United State could very well lead to the formation of a distinct set procedures focused on ensuring that goal, much as environmental justice has done for environmental protection.
