The Anthropocene brings with it a risk of environmental disasters at scales not previously experienced. This chapter argues that disasters caused or made worse by climate change are appropriately addressed under the rubric of international climate law rather than global disaster policy. A turn to generic disaster risk reduction in response to the risks of climate disasters in the Anthropocene is no substitute for the urgent task of reducing greenhouse gas emissions in order to meet the objectives of the 2015 Paris Agreement on Climate Change. Instruments such as the Sendai Framework for Disaster Risk Reduction, as important as they are, can offer only wishful thinking when it comes to the governance of environmental disasters in the Anthropocene.
Robin Kundis Craig
This chapter examines the roles of water law in addressing three different forms of water-related climate disasters: drought, flooding, and coastal inundation. From a legal perspective, the subject of water law and climate disasters is made more complex by the fact that water law systems themselves vary considerably. As such, two issues regarding the role of water law in climate disasters are likely to emerge as most critical: the extent to which a given water law system provides for flexibility in how water supplies are allocated; and the extent to which a given water law system both can adapt existing water supplies to changing ecological realities and can increase the short-term and long-term resilience of the overall water supply to the impacts of climate disasters.
Susan S. Kuo
For public officials, buyouts are an appealing mechanism for removing flood-prone properties from vulnerable coastal areas. Importantly, buyouts differ from takings in that participation is ostensibly voluntary. Thus, buyouts seem to offer results without violating individual autonomy. In reality, however, buyout offers can be highly coercive. For example, if the state seeks to acquire multiple properties within a neighborhood, an individual’s isolated property could become worthless. Because property values in a community are interconnected, buyout offers create a problem of collective action for recipients. This chapter argues that disaster buyouts should be regulated in ways that recognize the collective context.
R. Henry Weaver and Douglas A. Kysar
Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This chapter examines global climate change tort adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop of a potentially existential threat, judges redeem the very possibility of law when they forthrightly confront the merits of climate lawsuits. Conversely, when they use weak preliminary and procedural maneuvers to avoid such confrontation, judges reinforce a sense of law’s disappearance into the maw of normative rupture.
Barriers and Opportunities
Edited by Rosemary Lyster and Robert R.M. Verchick
Rosemary Lyster and Robert R.M. Verchick
The threats of extreme weather and slow-onset events to electricity infrastructure have been well documented. Like so many climate change threats, the problem of enhancing resilience in this infrastructure is less a lack of smart technology and more a lack of smart policy. But also the relationship between generators, transmission and distribution networks, and users, which has been pretty straightforward since the days of Westinghouse and Edison, is rapidly changing. It now seems that the way to make the power grid more resilient in cases of extreme events — particularly the kinds aggravated by climate change — is to pay more attention to its durability and flexibility. Localized technologies like rooftop-solar generation now allow users to also act as generators in distributed energy systems. Digital systems embedded in transmission networks can now control how much power commercial users request at certain times or how much power generators will produce, giving the network some characteristics of the user and the generator. We divide that work into three categories: hardening the grid, smartening the grid, and greening the grid, and point to the law and policy innovations which are needed.
Michael Faure and Qihao He
This chapter is motivated by the fact that under the influence of climate disasters, the world is exposed to more and more catastrophe risks and the disasters have generated increasing losses. Among the many solutions, this chapter focuses on insurance, which has received increased attention due to its emphasis on risk management, and explores the role of insurance in adapting to and mitigating climate change. The authors argue that private insurance can act not only as a form of post-disaster compensation which may help potential victims to adapt to climate change, but also as a form of private regulation — a contractual device controlling and motivating behavior to avoid the occurrence of climate change losses.
The principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) is a central foundational pillar of the international climate change regime, but it has also generated considerable disagreement between Parties over the years. The extent to which the climate change regime will succeed in its goals to limit climate change and reduce the risk of disasters depends on the extent to which this principle can be effectively operationalized. In its absence — if states believe themselves to be treated unfairly — the international climate change regime will flounder, dramatically increasing the risk of runaway climate change and disasters. This chapter examines the principle of CBDR-RC, including its core content, its legal status, and its operationalization in the Paris Agreement. The chapter pays particular attention to the aspects of climate change mitigation and adaptation, as they relate to disaster risk reduction.
Robert R.M. Verchick
In late August 2017, the outer bands of Hurricane Harvey were still wringing out the last of 50 inches of rain on downtown Houston when — with up to a third of the city still under water — an investigative piece in the Washington Post suggested the real target of blame for the deluge that will probably eclipse Katrina as the most expensive storm in U.S. history. Fault not a soulless cosmos, or sinful living, or even the subtle hand of climate change. No, the real villain of this piece was bad planning, or as the paper’s headline put it, “Houston’s ‘Wild West’ Growth.” One can hardly disagree. The largest U.S. city to have no zoning laws indisputably courted fate, steering sprawled-out neighborhoods into flood plains, paving over the last postage-stamp lots of absorbent turf. It’s a common story. That same summer more than 1,400 people were killed across South Asia as sheets of rain drummed ceaselessly upon the Indian subcontinent. Responsible for the most destructive flooding in a decade, the 2017 monsoon revealed the staggering inadequacy of government planning and preparedness that is still all too common in the region. “Most government action in India, where the flooding has hit hardest,” wrote one reporting team, “has been focused on relief, with weak early warning systems and too little focus on prevention.”
Sidney Shapiro and Katherine Tracy
Unmitigated effects of climate change on our natural and built environment pose severe risks to workers’ health and safety, and economic risks to workers, employers, communities, and governments. This chapter, using the United States as a case study, finds US labor policies did not reduce and effective manage these risks. Moving forward, an effective approach will require risk management tools that protect workers and labor policies that assist them in adjusting to the economic dislocations likely to arise from climate change and the transition to a green economy.