Some years ago Dave Markell and I noticed that commentary on climate change law was devoting a tremendous amount of attention to a small handful of judicial opinions as being representative of trends in climate change litigation, whereas inventories of climate change litigation, such as the Columbia Law School’s Sabin Center blog, included hundreds of active and resolved cases. We thought it might be useful to take an empirical look at all the cases to assess what the corpus of climate change litigation was about and its trajectory. This sounded a lot easier at the time than it turned out to be. Much time and effort was spent reading, analyzing, and coding cases over the next two years! But one of the first hurdles the article faced before we could get into the data morass was the seemingly simple task of defining what is and is not climate change litigation.
I had a similar experience when Michael Gerrard of Columbia Law School and Jody Freeman of Harvard Law School invited me to contribute a chapter on climate adaptation law to their wonderful volume, Global Climate Change and U.S. Law. I gladly accepted, but not long after I hit the send button I realized I’d have to define what is and is not climate change adaptation law.
Questions like these are not merely exercises in existentialism; they have practical implications. As a prior post on this blog convincingly argued, climate change is not only environmentally disruptive, it is also a legally disruptive force. In other words, there will be developments in law—claims won or lost in litigation, regulations adopted or repealed, institutions formed or changed—that would not have occurred but for the goals of mitigating and adapting to climate change. If we could scoop together all such events, that mass of legal content would be the corpus of climate change law; it is what one would study and evaluate to assess the legally disruptive effects of climate change.
It is as important for lawyers to study of the effects of climate change on the legal system as it is for ecologists to study the effects of climate change on ecosystems. It is important to find where climate change is putting pressure on the legal system and where the cracks are forming. It is important to examine whether climate change law is filling those cracks or making them more fragile. It is important to study the effects of this new legal “species” on other parts of the legal system as well as other realms of social policy. It is important to consider whether the different parts of climate change law are fitting together or working at cross-purposes. In short, studying climate change law is important, so it is important to know what climate change law is.
But this raises two difficult questions. The first is obvious—how do we apply the “but for” test? It is difficult to draw a sharp line that works in all cases. For example, Dave Markell and I defined climate change litigation as any litigation in which the party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and impacts. After scouring the US litigation landscape for all active and resolved litigation through 2010, we found about 200 pieces of litigation that met this “direct and express” test. We acknowledged, however, that some litigation might be motivated purely by climate change mitigation or adaptation, and thus meet the “but for” test, yet never mention climate change in pleadings or decisions, and thus fail our “direct and express” test. For example, opposition to a coal-fired power plant permit might allege only technical procedural error as the legal basis for the litigation but be based entirely on concerns about climate change. Nevertheless, given that we could not read minds, we decided to use an objective filter based on the text of the relevant documents.
Similarly, my chapter on climate change adaptation law based its scope on the “but for” test by examining whether climate change adaptation is clearly mentioned in the legal text and motivated the legal event. As with our litigation project, however, one can envision an adaptation legal claim or regulatory measure motivated by climate change but not meeting this strict test. For example, a requirement that new buildings meet energy and water efficiency standards might be a response to climate change, but the measure itself might not mention climate change adaptation as its purpose.
My sense is that over time there will be more and more legal developments of this kind—brought about because of climate change but not expressly about climate change. This is because the vast majority of climate change litigation and regulation to date has been about mitigation policy, which is difficult to frame without directly and expressly engaging the context of climate change in the pleading, regulation, ruling, or other legal text. As the physical and social effects of climate change take greater hold, however, they will increasingly become part of the baseline of legal fabric. They will lead to litigation and regulation, and change institutions. Such physical and social effects have consequences motivating legal responses across a broad realm of practical concerns, but it will not be necessary to identify climate change as their causal force or as their target. When defining what is and is not climate change law, therefore, it may become necessary to relax the “direct and express” standard and focus on the deeper and more subtle motivations and consequences to identify the “but for” body of law defining the corpus of climate change law. This will make identifying climate change law more difficult, but no less important.
The second question is whether, regardless of how we define climate change law, the mass of legal content that passes the test deserves to be known as “climate change law.” As Jim Salzman and I put it in an article exploring this issue, will climate change law develop into a field of law or a law of the horse? Again, this may seem pretty existential, but it too has a profoundly practical dimension. Why, for example, do we think of “tax law” as a distinct field but no one professes to practice “automobile law”? Legal scholars have argued that a field of law requires a commonality of problems and usefulness of joint treatment of those problems by the law. Tax law, for example, deals with taxation wherever it pops up, whereas automobiles intersect with the law in wide variety of disconnected contexts. More importantly, forming a field of law can serve political ends by legitimating a social movement (think of environmental law), can enhance efficiency by providing a focal point for legal and other expertise, and can orient laws and policies in a coherent form. But one cannot simply declare that a field of law exists; it forms organically over time and has to make sense.
So, what of “climate change law”—is it more like tax law or automobile law? This may sound odd coming from someone who spends time thinking about what is and isn’t climate change law, but my sense is that the dynamics will send us more in the direction of automobile law. The point of climate change law is to change the way we do things, broadly and deeply. That effort will affect all aspects of life profoundly, and thus all fields of law will have to adjust and incorporate the new way of doing things internally. What that means for tax lawyers will be different from what it means for environmental lawyers, labor lawyers, land use lawyers, and every other kind of lawyer. In short, if changes to the tax laws are made in response to climate change and that causes new issues for a business, the business will look for a tax lawyer, not a climate change lawyer.
The irony may be, therefore, that lawyers focused on climate change succeed in building a large mass of “but for” climate change mitigation and adaptation law, but in doing so work themselves out of a job. I can live with that!
Headline image credit: Climate change. Photo by Eric Wüstenhagen. CC BY-SA 2.0 via Flickr.