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Climate change and self-adapting law

How would law look different if we had always known about climate change? One difference – I would suggest – is that it would have been constructed so as to self-adapt to the changing context that it seeks to govern. What does it mean to self-adapt? An example of self-adapting law can be found in long term supply agreements. These agreements recognise that swings in the price of a particular commodity may alter the underlying economics of an entire transaction. Therefore they include an escalator clause that alters the terms of the contract as related prices change. Similarly, in the face of climate change, we need to ferret out the unintended, harmful, non-adaptive parts of existing law that may make climate change worse and draft new laws that are self-adapting.

Elsewhere, I have termed the unintended harmful non-adaptive parts of existing law as a negative legal feedback to climate change. In the science of climate change, a negative feedback is a physical process triggered by climate change that exacerbates the underlying process of climate change. For example, melting of the tundra in the far North, as a result of warming, may lead to the release of significant amounts of methane that in turn may accelerate the process of warming. A legal feedback, unlike a physical feedback, does not accelerate or mitigate the underlying process of climate change itself. Rather, it accelerates or mitigates the damage that will be felt as a consequence of any level of climate change. Moreover, a legal feedback, unlike a physical one, is not fixed in the laws of nature, but rather is socially constructed and thus can be changed.

An example of a negative legal feedback will arise from the international law of baselines from which ocean boundaries are drawn. The law of baselines is a set of detailed rules that, broadly speaking, seek to give content to the principle that baselines (and the boundaries drawn from them) should follow the general direction of the coastline. In many cases, the law of baselines allows such lines to be based on geographic features barely above sea level. Therefore, almost any change in sea level from climate change may have quite dramatic effects on certain baselines. This physical effect on what legally counts as a baseline may have a potentially dramatic effect on boundaries. This is because the baselines and boundaries generated from them are “ambulatory” (that is, the baselines – and therefore the boundaries, adjust themselves to a changing coastline). Consequently, the unanticipated rise in sea level in particular geographic situations will result in unintended and significant shifts in the outer boundaries of the oceanic zones claimed by coastal states. The law of baselines gives rise to a negative legal feedback because it increases both the potential for the waste of resources aimed at protecting what counts as a baseline, as well as private and interstate conflict over the uncertainty of boundaries.

In contrast, the “public trust doctrine” in US common law, which places certain restrictions on the alienation and use of waterways in the United States, is an example of a self-adapting law. The public trust doctrine has, built into it, a measure of flexibility that intentionally accommodates change in the environment. While US states differ in whether they set the boundary of the public trust at the high tide mark, low tide mark or at the vegetation line, those boundaries (and therefore the boundary of the trust) are ambulatory and take into account changes in water levels. This flexibility will thus take into account sea level changes as it happens extending the trust potentially over what is privately held adjacent land. Whether the doctrine extends to lands that are highly likely in the future to be submerged by a rising sea level is yet to be decided, but it at least seems possible. Unlike the case of ocean boundaries above, the reason for the legal boundary is not frustrated by rising sea levels. Since the purpose of the public trust doctrine is “an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust” (Nat’l Audubon Soc’y v. Superior Court, California Supreme Court, 1983), then the movement of that doctrine along with the waters its governs furthers that purpose. There is, of course, the interests of those on the other side of any boundary. In the case of the public trust, the interests of the private property owners are threatened more by the rising sea level than by the protections they gain with all others from the extension of the public trust doctrine to not only its land but to all other lands submerged.

It is sometime said that the law is a living thing. On the one hand, the law in its totality may be conceived in this way because it changes through legislation and judicial construction, it changes as a result of imaginative argumentation and it reflects society’s changing values. On the other hand, particular laws are artifacts. Given that these laws were made with past circumstances in mind, it is possible that they do not suit the needs of today. The world may change in ways that were never contemplated when particular policy choices are made into law. Ideally, law should change with the world around it. But given the slow pace of legal evolution, there is inevitably a period of time when the law has not yet changed to reflect modern realities and in that period it often fails to promote either wise policy or just outcomes. Since legal doctrine is fundamentally challenged by climate change in this way, legal disputes are inevitable and adjudicative processes will be important sites for testing and developing doctrine that has not yet adapted to the reality of climate change. Equally, legal scholars have an important task in helping to construct a law that is responsive to such significant change.

Featured image credit: Coast By Owen Walters. CC0 via Unsplash.

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  1. […] the climate and the oceans are seeded with potentially disruptive legal consequences. These include the effect of sea level rise on the baselines from which ocean zones are calculated under the United Nations Convention on the […]

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