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Legal Barriers to Dealing with
Climate Change:
Getting the Law to Fit the
Problem
Robin Kundis Craig
Attorneys’ Title Professor of Law & Associate Dean for
Environmental Programs
Florida State University College of Law
November 11, 2009
The Most Prevalent Climate
Change Legal Issue: Mitigation
A Logical--If Imperfect-Attempt to Adapt Existing Law
Wrong Mitigation Tool #1
Wrong Mitigation Tool #2
The Emerging Climate Change
Problem: Adaptation
The Need for Climate Change
Adaptation
A Helpful Extension of Existing
Law to Climate Change
OTHERWISE: Mis-Match of
Climate Change Impacts & Law
ENVTL & NATURAL
RESOURCES LAW:
Assumes stationarity
of baseline conditions
and ecosystems
Basic paradigms are
preservation and
restoration
Assumes predictabiliy
Assumes reversibility
CLIMATE CHANGE
REALITIES:
Baseline ecological
conditions change
Ecosystems rearrange
Ecosystem thresholds
are crossed
Changes are:
Nonlinear
Unpredictable
Irreversible
The Proposed New Model:
PRINCIPLED FLEXIBILITY
Distinguish climate change
impacts from other
anthropogenic impacts
Creatively implement
consistent principles for
an overall climate change
adaptation strategy rather
than requiring fixed
regulatory panaceas
Improve resilience and
adaptive capacity
Other Ways of Reframing
Climate Change, Legally
Public Health issue
National Security issue
Emergency Preparedness issue:
Emphasis on avoiding harm, through both
mitigation and adaptation
Emphasis on planning ahead
Emphasis on community needs and survival
Adjustments of private interests--like private
property rights--easier