Displaying items by tag: climate change
I. Introduction

The actual and projected manifestations of climate change, including sea level rise, stronger rainstorms, more severe storm events, inland storm surges, and associated flooding, pose a host of adaptation challenges. The effective management of hazardous waste sites under the new environmental conditions occasioned by climate change presents one such adaptation challenge, though this challenge is easily overlooked in the rush to protect highly visible and obviously vulnerable infrastructure and populations such as coastal communities. Many hazardous waste sites have been remediated, or are proposed to be remediated, relying in whole or in part on engineering and institutional controls meant to prevent or limit exposure to contaminants. These remedies include caps over contaminated sediment or soil, deed restrictions, barrier walls and others controls, all of which can allow the contaminants to remain onsite indefinitely.

However, the traditional design of these engineering and institutional controls affords protection from historical and predicted environmental conditions that may not reflect real-world conditions generated by climate change, either already present or anticipated. This raises both backward-looking considerations for sites already remediated using engineering and/or institutional controls, and forward-looking considerations with respect to the selection of remedies at sites undergoing cleanup. Could climate change-related storms, flooding, or other events compromise engineering and/or institutional controls and cause new releases of and exposure to contaminants? If so, can or should further work be required at these sites to reduce this risk? In remedy selection, how should regulators take into account the effects of climate change when assessing the protectiveness of remedies, especially remedies incorporating engineering and/or institutional controls?

This article considers these questions in the context of a particular type of contaminated site—sites with contaminated sediments subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601–9675 (2006). For an interesting argument that CERCLA provides authority to support climate mitigation (reductions in GHG emissions), see Curtis A. Moore, Existing Authorities in the United States for Responding to Global Warming, 40 Envtl. L. Rep. News & Analysis 10185 (2010). Although climate change may impact a variety of waste sites in different ways,For example, sea level rise may cause leaching from hazardous waste sites located on land. For a discussion of the risks posed to hazardous waste sites by sea level rise, see Timothy J. Flynn et al., Implications of Sea Level Rise for Hazardous Waste Sites in Coastal Floodplains, in Greenhouse Gas Effect and Sea Level Rise: A Challenge for this Generation 206 (Michael C. Barth & James G. Titus eds., 1984), available at http://epa.gov/climatechange/effects/coastal/SLRChallenge.html; Edna Sussman et al., Climate Change Adaptation: Fostering Progress through Law and Regulation, 18 N.Y.U. Envtl. L.J. 55, 116 (2010). even those without sediment contamination, this article focuses on sediment sites so as to frame a more manageable inquiry susceptible to in-depth treatment. The following section, Part II, identifies the vulnerability of contaminated sediment sites to climate change. The section describes sediment contamination, regulatory approaches to remediating contaminated sediments, and how climate change may impact sediment remedies. Part III evaluates strategies for managing climate risks at closed, previously remediated sediment sites; these strategies include reopening consent decrees. Part IV considers how climate effects may impact the selection of remedies dependent on engineering or institutional controls at contaminated sediment sites. The article concludes that the U.S. Environmental Protection Agency (the EPA) should monitor sediment sites for climate-related damage, particularly after extreme weather events, and should require that future remedies be designed to withstand upper-bound, climate change-adjusted frequencies and severities of relevant climate events. Proposed approaches include more aggressive monitoring requirements that clearly require prompt assessment of sites after severe events, and agreements that contain modified reopener language that expressly addresses whether and when climate change-related weather events, projected or actual, will trigger a reopener.

II. Identifying Vulnerability to Climate Effects

Contaminated sediment sites are uniquely vulnerable to the effects of climate change. This vulnerability stems from the persistent nature of sediment contamination coupled with contemporary remedies for preventing exposure and transport of contaminated sediments. An analysis of the regulatory and enforcement adaptations to climate change-related threats to contaminated sediment sites first requires a description of sediment contamination and the mechanisms under CERCLA for addressing that contamination, followed by a review of the potential impacts of climate change on sediment remedies.

A. Sediment Contamination and CERCLA

Contaminated sediment consists of “soils, sand, organic matter, or minerals that accumulate on the bottom of a water body and contain toxic or hazardous materials that may adversely affect human health or the environment.”U.S. Envtl. Prot. Agency, EPA’s Contaminated Sediment Management Strategy 1 (April 1998) [hereinafter EPA’s Contaminated Sediment Management Strategy]; see also Water Resources Development Act of 1992, Pub L. No. 102–580, § 503, 106 Stat. 4797 (defining contaminated sediments as “aquatic sediment which contains chemical substances in excess of appropriate geochemical, toxicological, or sediment quality criteria or measures; or is otherwise considered by the Administrator [of the EPA] to pose a threat to human health or the environment.”). Surface waters in the United States suffer from extensive sediment contamination. Sampling conducted as part of the National Sediment Quality Survey (NSQS) indicates that direct or indirect exposure to sediment at 73.1% of sampling stations included in the National Sediment Inventory database, which includes locations in U.S. rivers, lakes, oceans, and estuaries, could be connected to adverse effects to aquatic life and human health.U.S. Envtl. Prot. Agency, The Incidence and Severity of Sediment Contamination in Surface Waters of the United States xix (Nov. 2004) [hereinafter The Incidence and Severity of Sediment Contamination]. The National Sediment Inventory data is largely obtained from monitoring programs directed to areas suspected of contamination and thus likely overstates the extent of sediment contamination nationwide. The EPA concludes that “approximately 10 percent of the sediment underlying our nation’s surface water is sufficiently contaminated with toxic pollutants to pose potential risks to fish and to humans and wildlife who eat fish,”EPA’s Contaminated Sediment Management Strategy, supra note 3, at 2. and that “sediment contamination exists at levels where associated adverse effects are probable . . . in some locations in every region of the country.”The Incidence and Severity of Sediment Contamination, supra note 4, at 5-3. As of 2002, 2,800 fish advisories, covering “more than 544,000 river miles, 71 percent of the Nation’s coastal waters, and more than 95,000 lakes” had been issued for contaminants often found in sediments.Id. at 1-4.

Sediment acts as a reservoir for contaminants, including many persistent pollutants that pose a variety of threats to water quality, aquatic life, and human health. Perhaps of most concern is that while chemical contaminants in the sediment may be directly toxic to aquatic life, the contaminants may also bioaccumulate in individual species and biomagnify up the food chain. Bioaccumulation involves the transport of dissolved contaminants in pore water to benthic invertebrate communities that live in the sediment. This process leads to biomagnification: when benthos are consumed by fish and shellfish, the persistent pollutants accumulate in tissues and are passed up the food chain, in increasing concentrations, to fish species and humans.Id. at 1-3 to -4. Furthermore, sediment contamination can alter benthic invertebrate communities or even destroy them, while known effects on fish species include fin rot, increased tumor frequency, and reproductive toxicity.Id. Human consumption of contaminated fish may cause cancer or child neurological and IQ impairment.EPA’s Contaminated Sediment Management Strategy, supra note 3, forward. Studies suggest that individuals who consume seafood from areas with highly contaminated sediment face an estimated excess lifetime cancer risk from less than one in one hundred thousand to as great as two to five in one thousand.U.S. Envtl. Prot. Agency, Proceedings of EPA’s Contaminated Sediment Management Strategy Forums 2 (Sept. 1992) (citing testimony from Gerald Pollock, California Environmental Protection Agency), available at http://water.epa.gov/polwaste/sediments/cs/upload/csforum.pdf.In many places, regulators issue fish advisories cautioning individuals to limit the consumption of fish from contaminated water bodies.EPA’s website allows individuals to search for advisories across the country. Advisories Where You LiveU.S. Envtl. Prot. Agency, http://water.epa.gov/scitech/swguidance/fishshellfish/fishadvisories/states.cfm (last visited Jan. 5, 2012). Of note, not all fish advisories are occasioned by contaminated sediment; water pollution can also require the issuance of fish advisories.

Under CERCLA, parties are held strictly, jointly, and severally liable for the cleanup of hazardous substance releases.CERCLA § 107, 42 U.S.C. § 9607 (2006). Accordingly, CERCLA “provides one of the most comprehensive authorities available to the EPA to obtain sediment clean-up, reimbursement of the EPA clean-up costs, and compensation to natural resource trustees for damages to natural resources affected by contaminated sediments.”EPA’s Contaminated Sediment Management Strategy, supra note 3, at 59. As of 2004, about three hundred sites, or about twenty percent of the sites on the Superfund National Priority List, included contaminated sediment.The Incidence and Severity of Sediment Contamination, supra note 4, at 1-5. Decisions about how to clean up these sediments have already been made at nearly half of those sites.Id.

The EPA publishes technical and policy guidance regarding the remediation of contaminated sediments sites. The most important of these publications is the Contaminated Sediment Remediation Guidance for Hazardous Waste Sites (hereinafter the EPA Sediment Remediation Guidance).See generally Envtl. Prot. Agency, Contaminated Sediment Remediation Guidance for Hazardous Waste Sites (Dec. 2005) [hereinafter EPA Sediment Remediation Guidance]. The EPA Sediment Remediation Guidance recommends three potential methods of cleanup at a contaminated sediment site: monitored natural recovery (MNR), in-situ capping, and dredging and excavation.Id. at ii (“Due to the limited number of cleanup methods available for contaminated sediment, generally project managers should evaluate each of the three potential remedy approaches (sediment removal, capping, and MNR) at every sediment site.”). Complex sediments sites may employ a combination of these remedies. Both MNR and capping leave contaminated sediments in place. Capping is a type of engineering control, and MNR and capping both usually employ institutional controls.An institutional control “generally refers to non-engineering measures intended to affect human activities in such a way as to prevent or reduce exposure to hazardous substances.” EPA Sediment Remediation Guidance, supra note 17, at 3-22. Institutional controls at sediment sites include fish consumption advisories, commercial fishing bans, and waterway use restrictions. Id. at iii. Because the MNR and capping remedies leave contaminated sediments in place, they are uniquely vulnerable to climate change related events and are of primary relevance to the present inquiry.

1. Monitored Natural Recovery

Monitored Natural Recovery “typically uses ongoing, naturally occurring processes to contain, destroy, or reduce the bioavailability or toxicity of contaminants in sediment.”Id. at 4-1; see also Envtl. Security Tech. Certification Program, Technical Guide: Monitored Natural Recovery at Contaminated Sediment Sites 1-3 (May 2009) [hereinafter MNR Technical Guide]. Frequently this remedy means simply leaving a site untouched while monitoring the site to confirm the continuation of natural processes already reducing contaminants or exposure to contaminants, such as the deposit of clean sediment over contaminated sediment.

A key limitation of MNR is that “[w]hen MNR is based primarily on natural burial, there is some risk of buried contaminants being re-exposed or dispersed if the sediment bed is significantly disturbed by unexpectedly strong natural or man-made (anthropogenic) forces.”EPA Sediment Remediation Guidance, supra note 17, at 4-4. Moreover, the success of MNR in reducing risk at a given site frequently depends on sedimentation, or the physical process of new, uncontaminated sediment depositing and burying older, contaminated sediment.Id.; see also MNR Technical Guide, supra note 20, at 1-11 tbl.1-5 (identifying as one line of evidence in evaluating whether a site is appropriate for MNR the “[d]etermin[ation] if sedimentation is occurring and if newly-deposited sediments will remain in place.”). Thus, a significant concern with respect to MNR remedies is that “[m]ajor events, such as severe floods or ice movements may scour the buried sediment, exposing contaminated sediment and releasing the contaminants into the water column.”EPA Sediment Remediation Guidance, supra note 17, at 4-6. The EPA advises regulators to “consider the potential influence of these processes on exposure rates and risk.”Id.

2. In-Situ Capping

In-situ capping involves containing contaminated sediments in place and covering the contaminated sediments with a clean material, such as uncontaminated sediment or gravel, in a manner that will trap the contaminated sediments. In-situ capping is used to physically and chemically isolate contamination by sequestering, stabilizing, and preventing erosion of contaminated sediment. Capping as a remedy has one significant limitation because “sediment is still left in place in the aquatic environment where contaminants could be exposed or dispersed if the cap is significantly disturbed or if contaminants move through the cap in significant amounts.”Id. at iv; see also id. at 5-3. If a major storm breaches the cap, pollutants may become widely dispersed, rendering a post-storm excavation infeasible. This limitation and potential consequence calls for caution when considering capping remedies for persistent pollutants. Thus, a key goal of capping is finding a location that can “ensure that hydraulic forces do not erode and resuspend the underlying contaminated sediment.”Strategic Envtl. Research & Dev. Program, SERDP and ESTCP Expert Panel Workshop on Research and Development Needs for the In Situ Management of Contaminated Sediments 35 (Oct. 2004). To this end, caps are frequently armored or used at depth that can minimize the impacts of wave action or other hydraulic stresses. Caps are more likely to succeed in low-energy environments: the EPA suggests that project managers “should consider . . . storm-induced waves and other episodic events” when evaluating and designing caps.EPA Sediment Remediation Guidance, supra note 17, at 5-4. Some caps may also provide in situ treatment of contaminants; erosion is also very important with respect to evaluation of in situ treatment. Strategic Envtl. Research & Dev. Program, supra note 26, at 12 (“Several in situ treatment technologies are based on the amendment of sorptive or reactive particles to the sediments. The potential loss of the amendments through resuspension and transport could be a major concern. There is need for improved understanding of the fate and transport processes of amendment materials, especially over the long term.”). The agency also advises project managers to consider whether nearby stormwater outfalls may impact cap integrity, and base the design of a cap’s erosion protection features on “the magnitude and probability of occurrence of relatively extreme erosive forces estimated at the capping site,” generally a one-hundred-year storm.EPA Sediment Remediation Guidance, supra note 17, at 5-6, 5-9.

3. Remedy Selection

The EPA Sediment Remediation Guidance also provides instruction on evaluating and selecting appropriate remedies at contaminated sediment sites.For an overview of remedy selection considerations see generally id. at ch. 7. There are many factors involved in remedy selection, including, for example, anticipated future land uses and the presence of sensitive environments. See id. at 7-5 highlight 7-2. The discussion here focuses on those factors most likely to be influenced by climate change. During the remedy selection process, a number of considerations arise that are particularly relevant for understanding how climate change may impact the selection and effectiveness of sediment remedies. Two of the most relevant considerations in remedy evaluation and selection with respect to climate change are site characterization and risk assessment.

a) Site Characterization

An initial step in selecting a remedy at a site is site characterization, or the preparation of a conceptual site model.Id. at 2-7 to -12; see also Strategic Envtl. Research & Dev. Program, supra note 26, at 14 (describing this process as “[d]eveloping working hypotheses for site behavior.”). Site characterization is used to identify “present and future exposure pathways, evaluate[] their significance as routes of exposure, and provide[] sufficient knowledge of the system to allow design of effective remedial measures.”Strategic Envtl. Research & Dev. Program, supra note 26, at 14. Successful site characterization facilitates remedial decisions that are both technically informed and risk based.Id. A key aspect of site characterization, and also a driver of risk, is whether and how contaminated sediments move, or can be expected to move, in ways that may cause or increase exposure to ecological or human receptors.EPA Sediment Remediation Guidance, supra note 17, at ii (“An important part of the remedial investigation at many sediment sites is a site-specific assessment of whether movement of contaminated sediment (surface and subsurface) or of contaminants alone is occurring or may occur at scales and rates that will significantly change their contribution to risk. For example, is significant sedimentation of cleaner sediment burying contaminated sediment, and, if so, how quickly, and is erosion likely to re-expose those contaminants in the future?”).

Even without the complications presented by climate change, site characterization is very complex, in part because of the difficulty in understanding sediment mobility and contaminant fate and transport.Strategic Envtl. Research & Dev. Program, supra note 26, at 22, 30 (identifying the development of “site characterization tools to measure the rates of important sediment chemical/physical/biological processes affecting the fate and transport of contaminants” as a high priority research need and conceding that “our ability to determine cohesive sediment stability at a given location is quite uncertain . . . . [I]t is . . . difficult to anticipate how much sediment will be eroded due to hydrodynamic forcing of specified intensity and duration.”). Some causes of sediment or contaminant movement include floods, scour, seiches (sustained winds causing oscillations in lake elevation), and storm-generated waves and currents.EPA Sediment Remediation Guidance, supra note 17, at 2-24 highlight 2-8 (referencing “[f]loods generated by rainfall or snow-melt induced runoff from land surfaces[,] [i]ce thaw and ice dam-induced scour[,] [s]eiches (oscillation of lake elevation caused by sustained winds) . . . [,] and [s]torm-generated waves and currents (e.g., hurricanes, Pacific cyclones, nor’easters).”). Site characterization also requires knowledge of site hydraulics and hydrodynamics. Hydraulic and hydrodynamic information can be characterized in a “system flow balance,” a calculation generated by analyzing a variety of factors, including precipitation data and a range of flow conditions.Strategic Envtl. Research & Dev. Program, supra note 26, at 18. The flow conditions considered in the creation of the system flow balance range from dry weather conditions to wet weather conditions that may cause over-bank flooding.Id. In addition to flow conditions, an understanding of the balance of solids in the system is also necessary for site characterization. Many of the same possible conditions factor into the understanding of solids in the system: “As with flow monitoring, it is critical to gather data under both low-flow conditions and high-flow or flooding conditions in order to capture transport of solids under normal conditions and more turbid conditions under which resuspension of bed sediments may occur.”Id.

Understanding sediment bed stability frequently integrates modeling studies with empirical studies that use site-specific observation to evaluate whether sediments have remained stable during past high-energy events.Id. at 29. Site-specific data may help predict whether sediments can remain stable when subjected to an unprecedented event.Id. at 30. Sediment transport models attempt to “quantitatively predict the impacts of catastrophic events on the sediment bed” and “predict the location and depth of bed scour due to a flood or a rare storm, sediment advection to and from a site, and associated contaminant burial or dispersal.”Id. at 30; see also EPA Sediment Remediation Guidance, supra note 17, at 2-33 (providing as an example for the use of models “[p]redicting contaminant fate and transport . . . during episodic, high-energy events (i.e., tropical storm or low-frequency flood event).”).

The EPA Sediment Remediation Guidance outlines the data needed for site characterization—including temperature, flood frequencies, event-driven hydrographs and current velocities, and ice cover and break-up patterns—and instructs that “[w]hen considering watershed characteristics, it is generally important to consider both current and future watershed conditions.”EPA Sediment Remediation Guidance, supra note 17, at 2-5, 2-18. The guidance further emphasizes the importance of a site-specific assessment of the “frequencies and intensities of expected routine and extreme events that mobilize sediment.”Id. at 2-25. The EPA advises that regulators or those conducting analyses at sediment sites examine historical records, including meteorological and flow records, to understand the frequency of extreme events and the intensity of these extreme hydrodynamic forces at a site.Id. at 2-25, 2-29.

b) Risk Assessment, Evaluating Alternatives and Remedy Selection

Decision making regarding remedial action at Superfund sites requires a risk assessment of human and ecological risks, including an “assessment and prediction of the transport and fate of contaminated sediments and the associated chemical bioaccumulation . . . .”U.S. Envtl. Prot. Agency, Evaluation of the State-of-the-Art Contaminated Sediment Transport and Fate Modeling System 1 (Sept. 2006). The National Contingency Plan (NCP) identifies nine criteria for evaluating remedies, including, inter alia, whether the remedy protects human health and the environment, complies with applicable regulatory limits for relevant chemicals, and can be expected to be effective in the long-term. The long-term issue particularly calls for an evaluation of the adequacy and reliability of controls to manage residual risk from contaminants that remain onsite.40 C.F.R. § 300.430(e)(9) (2011); see also EPA Sediment Remediation Guidance, supra note 17, at 3-5 to -6.

The EPA Sediment Remediation Guidance discusses the application of these criteria at sediment sites. With respect to evaluating protectiveness and assessing human health threats at a contaminated sediment site, the EPA specifically recommends consideration of secondary releases of contaminants from sediment as a result of stormwater runoff and flood events.EPA Sediment Remediation Guidance, supra note 17, at 2-12 highlight 2-5. With respect to evaluating long-term effectiveness and residual risk for MNR and capping remedies, the EPA instructs that a primary consideration ought to be the stability of the sediment bed, or for MNR, “the chance that clean sediment overlying buried contaminants may be eroded to such an extent that unacceptable risk is created,” and for caps, the “likelihood of cap erosion or disruption exposing contaminants.”Id. at 3-16. The EPA has identified current and future sediment bed stability as a site condition conducive to the implementation of both MNR and capping remedies.Id. at 4-3, 5-2 (stating with respect to caps that “[h]ydrodynamic conditions (e.g., floods, ice scour) are not likely to compromise cap or can be accommodated in design.”). When comparing different remedies at a site, the EPA instructs regulators to consider disruption from natural causes, identifying specifically “floods and ice scour,” including “the 100-year flood and other events with a similar probability of occurrence.”Id. at ii. The one-hundred-year flood is a flooding event with a one percent probability of occurring or being exceeded in any year. The EPA instructs that project managers should evaluate the impacts on sediment and contaminant movement of a one-hundred-year flood and “other events or forces [such as hurricanes] with a similar probability of occurrence (i.e., 0.01 in a year).”Id. at 2-29.

B. Potential Climate Impacts on Sediment Remedies

As described above, assessing the risk posed by contaminated sediment sites, and achieving effective remediation of such sites, requires an understanding of the likelihood that contaminated sediment will be disturbed or disbursed and thus expose humans and the environment to those contaminants. Myriad guidance documents recognize that floods, extreme weather events (high winds, hurricanes, and storms), and stormwater and other runoff are the types of phenomena likely to cause erosion and potentially disperse contaminated sediment.Of note, floods can have a negative effect by damaging caps and spreading contaminated sediment, and also a positive effect by depositing additional clean sediment over contaminated sediment. Similarly, “in some situations, the large scale rainstorms associated with hurricanes may greatly impact sediment loading to the water body through erosion of watershed soils, but have little effect on stability of the in-water sediment bed itself.” EPA Sediment Remediation Guidance, supra note 17, at 2-23 to -26. These events present particular concern because they can move large amounts of sediment;Id. at 2-29. “[u]nder certain conditions, such as high winds, strong currents, or changes in ambient chemistry, accumulated contaminants are released, resuspended, or dispersed in the water.”Office of Ocean Res. Conservation & Assessment, Sediment Toxicity in U.S. Coastal Waters (1998); see also Strategic Envtl. Research & Dev. Program, supra note 26, at 8 (“To understand and model the processes controlling contaminant transport from sediments to the water column, and from contaminated areas to lesser or non-polluted sites, it is necessary to quantitatively evaluate particle and associated contaminant resuspension and deposition along with likely mechanisms promoting transport. Wind-wave, tidal, and fluvial forces all generate physical energy in estuarine and coastal areas that can resuspend and redistribute contaminated sediments.”). The EPA expressly suggests project managers consider the intensity of extreme hydrodynamic forces at a site; this is because “[t]he intensity of a force will be a significant determinant of its possible impact on the proposed remedy.”EPA Sediment Remediation Guidance, supra note 17, at 2-29.

It is significant to note that floods, extreme weather events like high winds, intense hurricanes, and storms, and unusual and unpredictable stormwater and spring runoff are not only phenomena likely to give rise to erosion and dispersal of contaminated sediment, but are also among the most commonly predicted effects of climate change.U.S. Global Change Research Program, Global Climate Change Impacts in the United States 9–10 (2009) (“Likely future changes for the United States and surrounding coastal waters include more intense hurricanes with related increases in wind, rain, and storm surges . . . . [S]ea-level rise will increase risks of erosion, storm surge damage, and flooding for coastal communities . . . . Reduced snowpack and earlier snow melt will alter the timing and amount of water supplies.”). With climate change, storms, particularly in coastal areas, will likely be more intense.Id. at 32 (“Heavy downpours that are now 1-in-20-year occurrences are projected to occur about every 4 to 15 years by the end of this century, depending on location, and the intensity of heavy downpours is also expected to increase. The 1-in-20-year heavy downpour is expected to be between 10 and 25 percent heavier by the end of the century than it is now.”). Sea levels are projected to rise, with estimates as high as three to six feet during the next century.Martin Vermeer & Stefan Rahmstorf, Global Sea Level Linked to Global Temperature, 106 Proc. Nat’l Acad. Sci. U.S.A. 21527, 21531 (2009). Heavy downpours that once occurred every twenty years may occur every four to fifteen years; and those heavy downpours will likely become ten to twenty percent heavier.U.S. Global Change Research Program, supra note 56. As a result of increased downpours, the frequency and intensity of floods are also likely to increase. For example, “[a] 100 year flood could occur in the New York Metropolitan Region every 43–80 years by the 2020s, 19–68 years by the 2050s, and 4–60 years by the 2080s.”N.Y. State Bar Ass’n, Taking Action in New York on Climate Change 6 n.22 (Jan. 2009) (citing Columbia Univ. Ctr. for Climate Sys. Research, Metro East Coast Regional Assessment xi (2001)), available at http://www.nysba.org/globalwarmingtaskforcereport/; see also Climate Impacts in New York City: Sea Level Rise and Coastal Floods, NAT'L AERONAUTICS & SPACE ADMIN., http://icp.giss.nasa.gov/research/ppa/2002/impacts/results.html (last visited Jan. 6, 2012) (reporting that in New York City "weaker storms will be able to produce the equivalent of the '100-year storm' of today. In addition, there will be an increase in the number of '100-year storms' relative to the year 2000.").

Climate change will likely increase the incidence of those phenomena recognized to cause erosion and dispersal of sediments, particularly in coastal areas, and could therefore undermine the effectiveness of remedies that rely on engineering and institutional controls, such as MNR and capping.Rising water temperatures may also increase the release of contaminants from sediments. The Union of Concerned Scientists & The Ecological Soc’y of Am., Confronting Climate Change in the Great Lakes Region 21, 54 (2003) (“Lower oxygen and warmer temperatures also promote greater microbial decomposition and subsequent release of nutrients and contaminants from bottom sediments.”). Some of these phenomena may also complicate the implementation of other sediment remedies; for example, extreme weather events could exacerbate the risk of resuspension of contaminated sediments during dredging. In Wisconsin, concern has been expressed over lower water levels that may lead to a need for increased navigational dredging; there the dredging could resuspend contaminated sediments.Wis. Initiative on Climate Change Impacts, Wisconsin’s Changing Climate: Impacts and Adaptation 114 (2011) (“If water levels are lower on average and require additional dredging, buried toxic sediments may be exposed and re-suspended in the water. Lower water levels, more intense rainfall events or a combination of these conditions could also increase stream scouring and erosion, leading to more sedimentation downstream in Great Lakes bays and rivers, potentially exposing these areas to re-suspended pollutants.”).

Notably, however, climate change effects are intensely regional and differ between different types of waterways. Climate change effects are uncertain at local levels, and the impact of such effects is very site specific, depending upon the chemicals involved, the remedy employed, and other factors. In some areas drought may reduce river flows, increase sedimentation, and thereby increase the viability of using institutional and engineering controls to control contaminated sediments. A storm event that leads to a net deposit of clean sediments at a site may further bury contaminated sediments.MNR Technical Guide, supra note 20, at 3-12. In some contexts, dispersion of sediments may support MNR.Id. at 1-8, 1-8 tbl.1-4. Although climate change may provide some narrow benefits for site remediation, the core predicted impacts of climate change broadly suggest greater erosion risks, particularly in coastal areas. Ultimately, climate effects, whatever they may entail in a given region or location, should be taken into account when assessing CERCLA remedies.

Serious sediment contamination appears to be concentrated in coastal areas where climate effects may be most pronounced. The NSQS identified areas of probable concern (APCs) where further study of the effects and sources of sediment contamination and the possibilities of risk reduction may be warranted due to more frequent exposure of benthic organisms and resident fish to contaminated sediment. A national map showing the location of APCs reveals that they are clustered in four main areas: the Washington coast, the California coast, the Great Lakes region, and the East coast from approximately the Chesapeake Bay north to Massachusetts, including the Hudson River valley.The Incidence and Severity of Sediment Contamination, supra note 4, at xxii fig.3; see also id. at 5-3. (“A number of specific areas in the United States had large numbers of sampling stations where associated adverse effects are probable. Puget Sound, Elliot Bay, Hudson River, the Pacific Ocean (near Santa Monica and San Diego), Willamette River, Sinclair Inlet, Mississippi River, Big Creek (Grays Harbor), and Duwamish Waterway were among those locations.”). Sites where the EPA issued a Record of Decision or Action Memo describing a sediment remedy that would address at least ten thousand cubic yards of contaminated sediment similarly included a large number of sites in those four areas.Id. at 3-13 to -20, figs.3-6 & 3-7. Additionally, a significant number of U.S. coastal waters show sediment toxicity.Office of Ocean Res. Conservation & Assessment, supra note 54, at 14, fig.8 (1998) (showing that eleven percent of estuarine areas surveyed nationwide demonstrated whole sediment toxicity to amphipods).

Figure 1: Locations of Areas of Probable Concern (APC) listed in the NSQS.The Incidence and Severity of Sediment Contamination, supra note 4, at xxii fig.3.



In light of the sediment contamination present in U.S. coastal regions, climate change raises unique concerns with respect to management of contaminated sediment sites. Movement of sediment at a previously remediated site as a result of an extreme weather event could damage a cap and disperse contaminants. Unanticipated and unprecedented conditions could undermine the accuracy of models used to predict sediment mobility, fate, and transport. In fact, the EPA recognizes that uncertainty in models often stems, in part, from assumptions about future conditions like rainfall, land use, or upstream contaminant sources.EPA Sediment Remediation Guidance, supra note 17, at 2-41.

As of 2004, MNR had already been selected in whole or in part as the remedy at one dozen CERCLA sites; caps had been selected, in whole or in part, as the remedy at fifteen CERCLA sites.Id. at 4-3, 5-1. As of September 2005, the EPA had selected a remedy at sixty Tier 1 sediment sites—sites where the remedy includes dredging or excavation of at least ten thousand cubic yards or capping or MNR of at least five acres.See Data on Superfund Sediment Sites, U.S. Envtl. Prot. Agency, http://www.epa.gov/superfund/health/conmedia/sediment/data.htm (last visited Jan. 6, 2012). However, many more sites are subject to investigation and evaluation, and incorporating climate data into the decision processes at those sites may avoid wasting resources by revisiting remedies. At a minimum, the predicted effects of climate change increase uncertainties in the modeling the effects of future storms at contaminated sediment sites. The potential for climate change to interfere with sediment remedies thus presents both backward- and forward-looking concerns.

III. Backward-Looking Considerations: Managing Closed Sites

The universe of contaminated sediment sites that employ MNR or capping and have already been remediated and closed is relatively small.EPA Sediment Remediation Guidance, supra note 17, at 4-3, 5-1 (identifying twenty-seven sites as of 2004 where MNR and/or capping was selected as all or part of the remedy). However, the risk posed by climate change at some of these sites may be significant. Flooding or an extreme weather event could re-expose and/or disburse buried contaminated sediment. Not only could cleaning up after such an event prove expensive and difficult, but contaminated sediments could pose serious threats to human health and the environment, particularly if the exposure or dispersal initially goes undetected. Managing these closed sites to reduce climate risks presents two related but distinct considerations. First, with respect to detecting remedy failure, efforts should be made to closely monitor these sites to ensure that remedies continue to perform adequately. Monitoring should be prompt, especially after extreme weather events. Second, with respect to avoiding remedy failure, the EPA should review implemented and in-process MNR and capping remedies to confirm that they continue to adequately control risk. If not, potentially responsible parties (PRPs) and the EPA will need to discuss an appropriate response, including the possibility of reopening a governing consent decree to require additional work.

A. Monitoring

Many contaminated sediment sites employing MNR or capping were likely remediated pursuant to a settlement agreement between PRPs and the EPA.Where PRPs can be identified, the strict, joint, and several liability structure of CERCLA, as well as its contribution provisions, historically created a strong incentive for PRPs to settle. Stefanie Gitler, Note, Settling the Tradeoffs Between Voluntary Cleanup of Contaminated Sites and Cooperation with the Government Under CERCLA, 35 Ecology L.Q. 337, 360 (2008) (noting that strong incentives to settle historically made settlement the “norm,” but analyzing how recent interpretations of CERCLA’s liability provisions have altered settlement incentives). Requirements to periodically monitor the remedy are built into most, if not all, of these agreements. Under CERCLA, where a remedy leaves hazardous substances in place in excess of certain levels, periodic five-year reviews can be conducted.CERCLA § 121(e), 42 U.S.C. § 9621(c) (2006). In fact, the EPA Sediment Remediation Guidance specifies that such reviews should generally be required for most sites remediated using MNR or capping.EPA Sediment Remediation Guidance, supra note 17, at 7-8. The EPA’s Model Remedial Design/Remedial Action Consent Decree places the responsibility on settling defendants to conduct any studies and investigations requested by the EPA so as to permit the EPA to review whether the remedial action “is protective of human health and the environment at least every five years as required by Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), and any applicable regulations.”U.S. Envtl. Prot. Agency, Model RD/RA Consent Decree ¶ 17 (Oct. 2009) [hereinafter Model RD/RA Consent Decree]. Moreover, most consent decrees incorporate by reference an operation and maintenance plan that identifies the activities required to maintain the effectiveness of the remedy and commits PRPs to carry them out.Id. at ¶ 4. If monitoring reveals that a remedy has failed or fails to meet performance standards, the EPA typically retains authority to require that the PRPs address the failure by repairing the remedy, such as repairing a cap or conducting additional cleanup. The additional cleanup could come by enforcing the decree itself (notably, most MNR sites will likely not yet have received a certification of completion), the operation and maintenance plan, and/or reopening the consent decree.Id. at ¶¶ 18–21, 96–97.

Accordingly, the EPA usually has the authority to require monitoring of contaminated sediment sites with MNR or capping remedies so as to detect climate-related remedy failure and require repairs or additional cleanup where remedies fail.

The possibility alone that climate change could cause remedy failure at some of these sites should encourage the EPA to work with PRPs to ensure that there is robust monitoring and, importantly, that mechanisms are in place to quickly assess sites after extreme weather events. The emphasis on monitoring and assessment is consistent with the EPA’s existing sediment remediation guidance with respect to MNR:


For areas that may be subject to sediment disruption, the project manager should conduct more extensive monitoring when specified disruptive events (e.g., storms or flow stages of a specified recurrence interval or magnitude) occur to evaluate whether buried contaminated sediment has been disturbed or transported and the extent of contaminant release contaminants [sic] and increased exposure.EPA Sediment Remediation Guidance, supra note 17, at 8-13.


With respect to caps, the guidance calls for “extensive monitoring” of “areas that may be subject to cap disruption . . . when specified disruptive events (e.g., storms, flow stages, or earthquakes of a specified recurrence interval or magnitude) occur,” to determine whether the cap was disturbed, and whether any such disturbance caused a significant release of contaminants and increased risk.Id. at 8-16. The EPA’s sample cap monitoring protocol even includes “Severe Event Response” as a monitoring phase and suggests the use of sub-bottom profiles, sediment profile cameras, and cores after major storms.Id. at 8-15 highlight 8-4.

B. Identifying and Improving At-Risk Remedies

Monitoring for remedy failure does not reduce the risk of failure or its potentially costly and dangerous consequences. The EPA could take a more aggressive approach and review existing contaminated sediment remedies that employ MNR or capping. Such a review could determine if any of these remedies present unacceptable risks to human health and the environment in light of projected climate change effects. If they do, the EPA could require PRPs to augment the remedy in order to reduce those unacceptable risks.See Sussman et al., supra note 2 (“For cleanups that are already complete, regulators may reopen cleanups and revise remedies based on changed conditions.”). While such a review may prove prudent and necessary, undertaking the task now presents three distinct difficulties.

First, a comprehensive review of sites would be time consuming, expensive, and perhaps a relatively low priority. Adapting effectively to climate change presents numerous challenges; the breadth of these challenges makes it important to prioritize resources appropriately. The priority of undertaking a large-scale review of contaminated sediment sites is arguably reduced by the relatively small number of affected sites and further discounted by the likelihood of serious disturbance at any given site and the reality that the EPA retains the authority to require monitoring to detect and efforts to fix remedy failure.

Second, current local and regional climate change projections do not provide sufficiently accurate predictions as to the effects of climate change at any specific location. Thus, any contemporary review of the threat to a specific site posed by climate change would necessarily include a wide range of projections and significant uncertainty. A delay in site-specific remedy review could allow climate modeling to improve and allow greater accuracy in climate impact predictions at a site and may lead to more agreement about appropriate actions in response to climate threats.

A third and related difficulty for sites certified as closed is the ambiguity as to whether the EPA could successfully reopen a consent decree and require additional work based on existing estimates of increased climate change risks, particularly in light of the present uncertainty of localized climate change projections. The covenants negotiated by PRPs generally include releases from liability as part of the consideration for the cleanup or payment of cleanup of a site. These releases or covenants are typically subject to a reopener, required by statute, that preserves the EPA’s authority to sue the PRP under CERCLA for future releases, or threats of such releases, where they “arise[] from conditions which are unknown at the time the President certifies . . . that remedial action has been completed at the facility concerned.”CERCLA § 122(f)(6)(A), 42 U.S.C. § 9622(f)(6)(A) (2006). The EPA is further authorized to include exceptions to covenants that would allow for future enforcement action at a site as “necessary and appropriate to assure protection of public health, welfare, and the environment.” § 122(f)(6)(C). Thus, under most consent decrees, the EPA reserves the authority to hold a PRP liable under CERCLA for some releases, or threats of release, notwithstanding the decree’s covenant not to sue. The EPA’s Model CERCLA RD/RA Consent Decree, for example, includes the following standard reopeners:

[T]he United States reserves . . . the right to institute proceedings in this action or in a new action or to issue an administrative order, seeking to compel Settling Defendants . . . to perform further response actions relating to the Site and/or to pay the United States for additional costs of response if, (a) subsequent to Certification of Completion of the Remedial Action, (i) conditions at the Site, previously unknown to EPA, are discovered, or (ii) information, previously unknown to EPA, is received, in whole or in part, and (b) EPA determines that these previously unknown conditions or this information together with other relevant information indicate that the Remedial Action is not protective of human health or the environment.Model RD/RA Consent Decree, supra note 77, at ¶ 97.

To reopen a consent decree based on increased climate risk, the EPA will need to argue two primary points: (1) projections of local climate impacts constitute new conditions or new information sufficient to trigger the reopening of settlement agreements, and (2) the remedy in place no longer protects human health and the environment. With respect to the first argument, the EPA will need to show the projected effects or risks of climate change were unknown at the time of the Certification of Completion of the Remedial Action, or were not set forth in the Record of Decision or other documents.Id. at ¶ 98. In addition to the ROD, the risk information would necessarily not be in the administrative record supporting the Record of Decision, the post-ROD administrative record, or in any information received by the EPA pursuant to the requirements of this Consent Decree prior to Certification of Completion of the Remedial Action. This inquiry must be done on a case-by-case basis, and it seems likely that the EPA will not have much difficulty satisfying this prerequisite. Although many MNR and capping remedies at contaminated sediment sites are relatively recent, localized climate effect projections are rapidly evolving. While materials prepared in support of a remedy at all sites would have included projections of one-hundred-year flood events and future storm events, such figures based on historical records would have failed to incorporate climate change: those projections are arguably distinct.

It might be a more difficult task, however, for the EPA to show that “the Remedial Action is not protective of human health or the environment.”Id. at ¶ 97. Reopener provisions serve to retain the government’s authority to require additional work as necessary to protect public health and the environment.See Superfund Program; Covenants Not To Sue, 52 Fed. Reg. 28,038, 28,041 (Envtl. Prot. Agency July 27, 1987) (emphasizing that “[c]ongressional concern that remedial action might fail to protect public health and the environment . . . extended to any situation in the future at the site which is judged to present a threat to public health and the environment,” and, in providing illustrations of conditions warranting use of a reopener, explaining that a reopener for remedy failure is warranted where “health effects studies reveal that the health-based performance levels relied upon in the ROD are not protective of public health or the environment . . . .”). As set forth in its own guidance and confirmed in consent decrees, the EPA has already conceded and accepted at least a one percent annual risk of remedy failure by selecting the one-hundred-year storm event or one-hundred-year flood as part of its design criteria. The EPA would thus need to distinguish between those acceptable risks and the increase in the risk of remedy failure as a result of possible climate effects. How much of an increase in risk would it take to make a remedy no longer protective? Would it be sufficient if data suggests that one-hundred-year floods would occur twice as often—every 50 yearsthereby doubling the annual risk of remedy failure? The issue presents the significant question of how much of a shift in climate conditions must occur before it is considered a threat to the remedy’s protection of human health or the environment. The EPA would not only need to develop a benchmark for that climate change value, but it would likely need to defend that benchmark against challenges by PRPs and public interest environmental groups.

It is unusual, but not unprecedented, for environmental agencies to reopen closed waste sites to address newly identified risks. New York State, for example, has reopened many sites to address the previously unrecognized threat posed by vapor intrusion, where volatile chemicals in contaminated groundwater or soil infiltrate the indoor air of overlying or adjacent buildings.Press Release, N.Y. State Dep’t of Envtl. Conservation, DEC Reports: NY's Vapor Program Called the Most "Proactive" (Mar. 9, 2009), available at http://www.dec.ny.gov/press/52443.html. The EPA is still finalizing its vapor intrusion guidance.Public Comment on the Development of Final Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Contaminated Groundwater and Soils (Subsurface Vapor Intrusion Guidance), 76 Fed. Reg. 14,660 (Envtl. Prot. Agency Mar. 17, 2011). The actions by states such as New York suggest that environmental agencies are prepared to respond as new risks are identified even at closed sites.

IV. Going Forward: Taking Climate Change Into Account When Fashioning Remedies

The EPA continues to review, approve, and manage MNR and capping remedies at contaminated sediment sites. The analysis above suggests that the EPA should move quickly and aggressively to incorporate the projected effects of climate change into its decision processes so as to avoid approving remedies that cannot withstand future environmental conditions. The analysis that follows identifies a few ways climate risk may be relevant to, and be incorporated into, remedy selection.

As briefly explained above, the NCP identifies nine criteria for evaluating remedies. Climate effects are directly relevant to the application of at least three of these criteria at contaminated sediment sites: whether the remedy protects human health and the environment, whether the remedy complies with applicable regulatory limits for relevant chemicals, and whether the remedy demonstrates long-term effectiveness, particularly with respect to the adequacy and reliability of controls to manage residual risk from contaminants that remain onsite.40 C.F.R. § 300.430(e)(9) (2011); see also EPA Sediment Remediation Guidance, supra note 17, at 3-5 to -6. In its sediment remediation guidance, the EPA provides specific examples showing how these criteria are applied in the evaluation of remedies at sediment sites. When comparing alternatives for cleaning up a sediment site, it is essential to assess the risk of re-exposure or redistribution of contaminated sediment posed by each alternative remedy.EPA Sediment Remediation Guidance, supra note 17, at 2-32. To that end, a scientific analysis of sediment stability is an important aspect of remedy selection, and is an important tool for comparing alternative remedies.Id. at 7-17.

The EPA specifically instructs that “[i]n evaluating whether to leave buried contaminated sediments in place, project managers should include an analysis of several factors, including . . . the potential for erosion due to natural . . . forces.”Id. at 7-3. One salient consideration in evaluating the long-term effectiveness of either a capping or MNR remedy is the inability to control physical disturbance from natural forces.Id. at 7-8. In comparing net risk reduction between alternative remedies, the EPA expressly identifies the effects that erosion may have on contaminant exposure as an aspect of potentially continuing or increasing risk.Id. at 7-14.

The EPA also specifies when sites are conducive to MNR or capping remedies. Sites may be conductive to these remedies where, for example, hydrodynamic conditions, such as floods or ice scour, are not likely to compromise natural recovery or capping, or where remedy design can accommodate such hydrodynamic conditions.Id. at 7-6. The EPA identifies “an accurate assessment of sediment mobility and contaminant fate and transport [as] one of the most important factors in identifying areas suitable for [MNR], in-situ caps, or near-water confined disposal facilities (CDFs).”Id. at ii.

Projected climate effects may change forecasts of future storm events and floods, the timing and extent of stormwater and spring runoff, and associated sediment stability, scour, and erosion. Thus, climate change may significantly affect whether and when site conditions support MNR or capping remedies. Climate change may alter the residual risks applicable to MNR or capped sites, and the risk reduction that those remedies afford. All of these changes and effects should be weighed when considering those remedies alongside dredging and excavation.

Still, as noted above, local climate projections remain uncertain. Incorporating this information into the decision-making process may prove difficult. This uncertainty, though, should not prevent the consideration of climate effects. Sediment sites present a number of difficult scientific and technical questions,Climate change is not, of course, the only source of uncertainty with respect to understanding sediment movement. Historical records may not, for example, reflect how “residential or commercial development in a watershed may significantly increase the impervious area and subsequently increase the frequency and intensity of routine flood events.” Id. at 2-27. and the EPA’s sediment remediation guidance directly addresses how uncertainty should be managed both generally and with respect to remedy selection. When analyzing sediment transport at a site, the EPA suggests that if information about extreme events from historical records is insufficient, or the historical record is too short to be useful, “project managers should consider obtaining technical assistance to model a range of potential events to estimate effects on sediment movement and transport.”Id. at 2-30.

The EPA also identifies methods to consider ways to manage climate variability in modeling sediment mobility at sites. Sensitivity analyses can be conducted and bounding calculations used to produce a conservative model outcome.See generally id. at 2-40 to -41. With respect to uncertainty and remedy selection, the EPA instructs as follows:

For some complex sediment sites, there may be a high degree of uncertainty about the predicted effectiveness of various remedial alternatives. Where this is the case, it is especially important to identify and factor that uncertainty into site decisions. Project managers are encouraged to consider a range of probable effectiveness scenarios that includes both optimistic and non-ideal site conditions and remedy performance.Id. at 7-3; see also id. at 7-17.

Finally, the EPA endorses an adaptive management approach to provide more reliable information to support decisions at sediment sites, including “reevaluating site assumptions as new information is gathered . . . [as an] important component of updating the conceptual site model.”Id. at 2-22.

Thus, although neither CERCLA nor the EPA’s guidance specifically references climate change, those authorities can be read to compel the consideration of climate effects. Climate effects may also be relevant to the EPA’s remedy design and consent decree negotiation at contaminated sediment sites where MNR or capping are used. It would be prudent for the EPA to require that remedies be designed to withstand upper-bound, climate change-adjusted frequencies and severities of relevant climate events. For example, caps could be made deeper or thicker. Additionally, the EPA should require aggressive monitoring requirements that mandate prompt assessment of sites after severe events, and the EPA should modify reopener language to expressly address whether and when climate change-related weather events, projected or actual, will trigger a reopener.

V. Conclusion

This article relies on a relatively simple premise: some of the most commonly predicted impacts of climate change, including floods, sea level rise, more intense storm events, changes in runoff and river flows, may produce conditions already widely recognized as having the potential to jeopardize institutional and engineering controls at some contaminated sediment sites. This premise suggests a few considerations for how to manage contaminated sediment sites. Looking forward, regulators and the regulated community should take care to understand and address potential climate change impacts as they choose and implement remedies at such sites. With respect to sites that have already been remediated, the potential impacts of climate change underscore the importance of more rigorous site monitoring. The possible effects of climate change also suggest that in the longer term, changing conditions may warrant reevaluating the continued effectiveness of contaminated sediment site remedies. Finally, the potential significance of climate impacts for contaminated sediment sites suggests, more generally, the need to better understand the impacts of climate change at other CERCLA sites dealing with other types of contaminated media.

Published in Latest Articles
Saturday, 13 August 2011 19:31

A Prudent Approach to Climate Change


John Kunich, an accomplished poker player as well as a distinguished environmental scholar, compares climate change policy to a gamble. Indeed, in the title of his recent book, he asserts that it is the "biggest gamble of all time." See John Charles Kunich, Betting the Earth: How We Can Still Win the Biggest Gamble of All Time (2010). The metaphor is apt. Despite years of research, a great deal of uncertainty exists about the central issues posed by climate change: How large is the threat? How imminent is it? How much can the world do to reduce the dangers? At what cost? Because of these uncertainties, any effort to address climate change will inevitably be a gamble. And the stakes are enormous. If nothing is done about climate change, the planet may face environmental catastrophe. If governments intervene aggressively, attempting to eliminate virtually all greenhouse gas emissions, the result is likely to be massive unemployment.

Kunich's solution to this monumental gamble, however, is disappointing. He does not recommend taking any steps to address climate change. One may search his book in vain for a single strategy he thinks ought to be adopted to reduce the adverse effects of climate change. His article in this journal is similarly devoid of affirmative recommendations. See John Charles Kunich, Open-Eyes Environmentalism, 1 Seattle J. Envtl L.121 (2011). Rather, he counsels caution: when the nation considers what steps it ought to take, it should err on the side of doing too little rather than doing too much. He recasts the familiar errors of decision theory as Type P errors—errors from being too passive—and Type R errors—errors from being too restless—and asserts that in dealing with climate change, Type P errors are superior:

Type P errors tend to be the preferable form of risk in situations very much like what we find in the climate change matrix—very high cost of betting/intervening, low or dubious chance of success from getting involved, and significant doubt as to the existence of a genuine and serious threat. Kunich, supra note 1, at 342.

His article also recommends a hands-off approach, suggesting the government address climate change only as a last resort:

Many concerns caution us to place climate change in the "last resort" category. A combination of the uncertain efficacy of corrective measures, questions about the extent and imminence of harm resulting from the unaltered status quo, and immense expenditures and opportunity costs associated with intervention makes Type P errors the rational preference. Kunich, supra note 2, at 130.

This position rests, in essence, on two judgments—the costs of intervention are very high while the benefits of action are highly uncertain. Both judgments may be correct, but they strike me as too pessimistic. There are certainly steps the government could take that are not extremely expensive, and some of them seem to have a reasonable prospect of producing significant benefits. In other words, there may be cost-effective ways to address climate change—policies that are likely to reduce the risk of an environmental catastrophe without devastating the economy. Despite the costs and uncertainties involved, despite the size of the gamble, there may be a prudent approach to climate change. In this article, I outline one.

I begin, in Part II, by emphasizing something that Kunich fully acknowledges—the worst-case climate change scenario is truly catastrophic. If climate change is allowed to proceed without any mitigation efforts, the results could be calamitous. While the probability of such a disaster may not be high, it is not zero. There is a real risk of enormous harm to the world, its people, and its species. Given the gravity of the consequences, the implication is clear: if the governments of the world can identify policies that would reduce the risk of such a catastrophe at acceptable cost, they should pursue them.

In Part III, I consider what those policies might be. I look initially at the costs of government intervention, noting that the United States and much of the world have just emerged from a major recession and the prospects for rapid growth in employment and output in most countries remain poor. As a result, immediate, dramatic action to combat climate change would be unwise. Humanity should not, as Kunich puts it, make an "all in" bet to combat global warming; the costs to the world's economies would be too great. At the same time, in light of the risk of a catastrophe, it is far from clear that nothing should be done. In second portion of Part III, I look at the principal forms of governmental response to climate change and suggest two policies that seem likely to be cost effective: (1) limits on greenhouse gas emissions that are initially modest but gradually escalate, and (2) government support for clean energy research and development.

In Part IV, I address whether developed nations should adopt these policies (particularly the first) if China and other rapidly developing countries refuse to follow. China, India, and other emerging economies already account for a large share of greenhouse gas emissions, and these countries have expressed reluctance to take steps that would inhibit their economic growth, at least until they reach a level of development comparable to nations like the United States. Here again, Kunich is correct: the participation of these countries is sufficiently important, both to the prospects of mitigating climate change and to the United States' ability to compete in global markets, that developed nations should not take major steps without commitments from these countries. But there are diplomatic tools that can be used to encourage participation, and some may be particularly effective in inducing China and other rapidly developing nations to act.


There is little doubt that the world is warming. In a recent article in the prestigious journal Nature, Quirin Schiermeier notes that "the most recent decade was the warmest on record." Quirin Schiermeier, The Real Holes in Climate Science, 463 Nature 284, 286 (2010). He also points out that the "current rate of warming is in all likelihood unique in the history of humankind." Id. To be sure, there is no definitive evidence that humans have contributed to this alarming rise in temperatures. Average world temperatures have risen before only to fall later, and these cycles occurred long before industrialization began injecting large quantities of greenhouse gases into the atmosphere. Is it possible that the globe is simply experiencing another cycle in the world's weather? Schiermeier is doubtful. He states that there is a substantial support for the fundamental conclusion that humans are warming the climate, specifically "the extreme rate of the twentieth-century temperature changes and the inability of climate models to simulate such warming without including the role of greenhouse-gas pollution." Id. at 284; see also id. at 286 ("Records of thermometer measurements over the past 150 years show a sharp temperature rise during recent decades that cannot be explained by any natural pattern.").

As Kunich emphasizes, not everyone agrees that humans have played a significant role in global warming. Nor is it certain that rising temperatures, if left unchecked for decades, would cause devastating damage to the environment and its inhabitants. There is widespread agreement, however, that climate change poses a major threat to the world. In the very title of his book, Kunich characterizes the policy decision as "Betting the Earth." See Kunich, supra note 1. His article calls climate change a "mega-magnitude" challenge that involves the "fate and survival of our planet." Kunich, supra note 2, at 122. He states: "Challenges facing the environment today are literally Earth-shaking in their magnitude, with the potential to affect the entire planet for hundreds of years to come, and beyond." Id. at 121.

Peter Singer, a prominent bioethicist at Princeton, concurs. Debating Bjorn Lomborg in The Wall Street Journal, Singer cited a World Health Organization study that found global warming has already resulted in more than a hundred thousand fatalities annually:

According to the World Health Organization, the rise in temperature that occurred between the 1970s and 2004 is causing an additional 140,000 deaths every year (roughly equivalent to causing, every week, as many deaths as occurred in the terrorist attacks of Sept. 11, 2001). The major killers are climate-sensitive diseases such as malaria, dengue and diarrhea, which is more common when there is a lack of safe water. Malnutrition resulting from crops that fail because of high temperatures or low rainfall is also responsible for many deaths. Peter Singer, Editorial, Does Helping the Planet Hurt the Poor? No, if the West Makes Sacrifices, Wall St. J., Jan. 22, 2011, http://online.wsj.com/article/SB10001424052748703779704576074333552233782.html. The counterpoint article is Bjørn EtLomborg, Editorial, Does Helping the Planet Hurt the Poor? Yes, if We Listen to Green Extremists, Wall St. J., Jan. 22, 2011, http://online.wsj.com/article/SB10001424052748703779704576074360837994874.html.

Singer also described the best known threat from global warming: rising sea levels, which would flood coastal areas, displace millions of people, and make it harder for them to obtain the fresh water they need. Singer wrote:

Fertile, densely settled delta regions in Egypt, Bangladesh, India and Vietnam are at risk from rising sea levels ... In 2007 the UN's Intergovernmental Panel on Climate Change found that a temperature rise in the range of 2 to 2.4 degrees Celsius by 2080 would put stress on water resources used by 1.2 billion people. Rising sea levels would expose, each year, an additional 16 million people to coastal flooding. A temperature rise limited to two degrees by 2080 now seems about the best we can hope for, and recently there have been alarming indications that sea level rises could be much greater than the IPCC anticipated. Singer, supra note 11.

These adverse consequences are especially troubling because they would disproportionately affect some of the most vulnerable populations on earth. Climate change, in other words, not only places the environment at risk, it also threatens to worsen the plight of the worst off, increasing economic inequality. Moreover, a warming globe will likely produce more severe storms and raise the probability of famine, two trends that could have dire consequences for many people. Finally, as Kunich notes, climate change could lead to the extinction of numerous species.

In the worst-case scenario, in short, climate change would have extreme consequences for the planet and its inhabitants—killing, dislocating, sickening, starving, or otherwise harming millions of people and extinguishing thousands of species. Although the likelihood of this scenario is unclear, it would be devastating if it occurs. On this issue, Kunich and Singer agree. In Singer's words, there is a "very real risk that climate change will turn out to be a disaster on an unprecedented scale." Id.

If nothing is done about climate change, in other words, the world would court a whirlwind. It would not be prudent to incur such a risk unless there were no cost-effective ways to mitigate it. Fortunately, that does not appear to be the case. At least two forms of governmental action, and perhaps several more, may reduce the adverse effects of climate change without incurring unacceptable costs.


Kunich argues that, above all else, the United States should not take drastic action to combat global warming. The nation should not make an "all in" bet, committing a large proportion of its scarce resources to stopping climate change. While Kunich may feel that no governmental action would be cost-effective, a judgment that is questionable, I agree with him that dramatic action does not make sense at the present time. The macroeconomic context is highly unfavorable to major governmental intervention.

The United States is slowly emerging from the Great Recession, one of the most serious financial crises in the nation's history and the worst since the Great Depression. The crisis led to a huge government bailout of the finance sector, a substantial drop in national output, and a large increase in unemployment. Two years into the recovery, unemployment remains high, with the ranks of the long-term unemployed larger than at any time since the 1930s. Economic growth is halting and painfully slow. Further, the federal government is incurring budget deficits that are unprecedented in absolute magnitude and proportionally higher than at any other time since World War II. In the next few years, moreover, the nation is unlikely to see a major improvement on any of these fronts. Although economic growth is likely to pick up, unemployment is likely to fall, and the deficit is likely to be reduced, no serious forecast predicts a sharp, sustained rebound in any of these areas.

At the present time, then, a ban on most greenhouse gas emissions would be unwise. Such a draconian restriction on traditional energy use would seriously harm a fragile and slow-growing economy and swell the ranks of the unemployed. While a ban would reduce the likelihood of an environmental catastrophe, the probability of such a disaster does not seem to be so high that it would be prudent to throw the economy into reverse, multiplying job losses, depressing income and wealth, and widening the government deficit. The prudent path lies somewhere between doing absolutely nothing about climate change and doing everything possible.

Some form of limited government intervention, in short, is the most the nation can handle at the present time. Indeed, with control of the government split between Republicans and Democrats, that is the most that can be accomplished politically as well. Moreover, since any climate change decision is fraught with uncertainty, any future policy should adhere, to the extent possible, to the following principles, all of which are useful in making decisions under uncertainty. First, the government should diversify its approaches. That is, an attack on the problem should come on multiple fronts rather than relying exclusively on a single approach. Second, the government should experiment. It should see how each policy works and then adjust the policy and/or the resources devoted to it accordingly. Finally, the government should seek ancillary benefits. That is, in selecting approaches, priority should be given to those that will achieve other goals. Thus, even if a policy ends up having relatively little impact on global warming, it will have positive effects in other areas.

The most promising approaches to climate change fall into three broad categories: (1) limits on greenhouse gas emissions; (2) adaptation; and, (3) clean energy research and development.

A. Limits on Greenhouse Gas Emissions

Congress could limit greenhouse gas emissions in a variety of ways. It could put a ceiling on them, it could combine ceilings with tradable emission permits (cap and trade), it could impose a tax on emissions, or it could direct the Environmental Protection Agency (EPA) to regulate them through the Clean Air Act. These methods differ in how easily they may be administered and how cost-effective they may be. In a longer article, I would compare them and evaluate their relative desirability; in this article, I will address a broader issue: How severe should the limits be? Whatever method Congress chooses, how far should the government go in attempting to reduce greenhouse gas emissions?

One prominent proposal would limit emissions to such an extent that the global mean temperature does not rise more than two degrees Celsius by the end of this century. This approach would not preserve the environmental status quo, but it would forestall more alarming temperature increases. It would also be quite costly. Studies of the issue have concluded that emissions limits of this magnitude would result in a reduction of approximately 1–2 percent in total economic output. While this sacrifice does not seem large in percentage terms, it is substantial in absolute terms. In a $15 trillion economy, a 1–2 percent reduction in GDP would mean $150-300 billion in lost output each year, a difference large enough to provide health insurance to 10–20 million families. This figure is based on the average cost to provide a U.S. household with health insurance, a figure around $14,000 a year and rising. See Press Release, Kaiser Family Foundation, Family Health Premiums Rise 3 Percent to $13,770 in 2010, But Workers' Share Jumps 14 Percent as Firms Shift Cost Burden (Sept. 2, 2010), http://www.kff.org/insurance/090210nr.cfm. A reduction in output of that magnitude could also increase unemployment by 1–2 million people. This follows from "Okun's Law," a rule of thumb developed by Arthur Okun that relates changes in unemployment to changes in Gross Domestic Product (GDP). It suggests that a percentage point decline in GDP is roughly associated with a percentage point increase in unemployment. At present, the national unemployment rate is 9.1 percent, the labor force consists of approximately 150 million people, and there are more than 13 million people unemployed. As a ballpark estimate, therefore, a decline in GDP of 1-2 percent would increase unemployment by at least 1-2 million people. Economic and employment data is compiled and published by the U.S. Dept. of Labor, Bureau of Labor Statistics. See Bureau of Labor Statistics, Employment Situation, http://www.bls.gov/news.release/empsit.toc.htm (last visited June 13, 2011).

These are large costs, and it is probably not sensible to incur them in the short run, given the state of the economy and the uncertainties about the size, impact, and reversibility of global warming that Kunich has described. It seems prudent to begin with modest measures, then increase them over time, particularly if experience (and growing knowledge of climate change) suggests that increases are in order.

Michael Porter, one of the world's leading authorities on business strategy, and Daniel Esty, a former EPA official and current environmental law professor at Yale, recommend such an approach. They propose "an emissions charge of $5 per ton of greenhouse gases beginning in 2012, rising to $100 per ton by 2032." Daniel C. Esty & Michael E. Porter, Pain at the Pump? We Need More, New York Times, Apr. 28, 2011, at A25, available at http://www.nytimes.com/2011/04/28/opinion/28esty.html. They note that the "low initial charge, starting next year, would make the short-term burden on consumers and businesses almost negligible." Id. They also stress that their proposal would have numerous ancillary benefits. Imposing a price on carbon would reduce the U.S. trade deficit because less oil would be imported. For the same reason, fewer dollars would flow to violent fundamentalists in oil-rich nations, enhancing national security. The carbon charge would also curtail air pollution by decreasing the combustion of fossil fuels. And the federal deficit is likely to be reduced because of the additional tax revenue generated by the carbon charge. Finally, their proposal would stimulate innovation:

In the longer term, the prospect of a steadily rising emissions charge would focus the private sector's attention on energy-saving and carbon-reducing innovation. The calculus for investments would immediately change. Anyone pursuing an energy-consuming project, like a power plant, would factor in the rising long-term charge into their choice of technology ... Entrepreneurial spirit would be unleashed in companies from multinational enterprises to back-of-the-garage inventors. Esty& Porter, supra note 16. In a recent column, Thomas L. Friedman cited similar ancillary benefits in making the case for a tax on carbon emissions. See Thomas L. Friedman, Bibi and Barak, New York Times, May 18, 2011, at A19, available at http://www.nytimes.com/2011/05/18/opinion/18friedman.html ("We are going to have to raise taxes. Why not a carbon tax that also reduces energy consumption, drives innovation, cleans the air and reduces our dependence on the Middle East?").

Even this proposal may be too ambitious. It is not clear that emission charges should escalate as rapidly as Porter and Esty propose; given the current state of the economy, a more moderate rate of increase may be preferable. But whether the cost increase is rapid or gradual, it makes sense to create a fixed schedule so as to make investment planning easier. Without a reliable schedule, entrepreneurs and businesses would have a more difficult time estimating the future cost of carbon-based energy and thus a harder time calculating whether clean-energy projects would be financially worthwhile. To stimulate innovation, in short, a fixed schedule is desirable, even though it would commit the government for a period of time to prescribed emission limits, reducing the government's ability to experiment and adjust.

B. Adaptation

Emission limits are intended to curb the extent of future climate change. Adaptation strategies are designed to help people cope with the effects of climate change that is likely to occur whatever emission limits are adopted. For example, governments can provide food, water, and relocation assistance to residents whose lands are likely to flooded by rising sea levels. At the present time, however, relatively few people need such assistance. While residents may need shelter and other help after a hurricane or tornado, such emergency relief is largely available through existing government and humanitarian sources.

To be sure, climate change may increase the frequency and intensity of such storms, as well as exacerbate the incidence of drought and famine, but predicting in advance which countries are likely to be most affected is difficult. As one scientist observed, "Our current climate models are just not up to informed decision-making at the resolution of most countries." See Schiermeier, supra note 5, at 285. At this time, then, it seems premature to commit large amounts of additional resources to adaptation assistance. The United States may need to make such commitments in the future, but other climate change strategies are more pressing in the short term.

C. Clean Energy Research and Development

The ideal solution to climate change is the development of new forms of energy generation that are both cheap and clean. These technological breakthroughs would use few resources to produce power and would emit no greenhouse gases or pollutants. Moreover, they could take any form: they could be a radically different type of energy from anything available now, or they could be a dramatic improvement on an existing source of power generation, like wind or solar.

The allure of such a prize motivates many people to recommend clean energy research and development. Esty and Porter, for example, advocate escalating charges on greenhouse gas emissions in part because they would make it more profitable for businesses and entrepreneurs to engage in clean energy research and development. As they note, a price on carbon would also give consumers as well as producers an increasingly powerful incentive to switch to whatever new, less carbon-intensive technologies are developed. For the same reasons, Friedman recommends a tax on carbon emissions. See Friedman, supra note 18. Likewise, Bjorn Lomborg supports increased research and development, though he believes governments should fund it directly rather than stimulate it through emissions taxes, which he believes would prove too harmful to economic growth. Lomborg is quite willing, however, to commit substantial funds to research and development, declaring: "[W]e should spend about $100 billion a year on research and development to make green energy cheaper and more widely available." Lomborg, supra note 11. Singer also endorses the "need for more investment in research and development," whether it is funded directly by the government or stimulated by some type of emission limit. Singer, supra note 11 ("Such investment could be funded by a carbon tax or, under a cap-and-trade scheme, by the sale of quotas to emit carbon. Either of these methods of putting a price on carbon would in itself create further economic incentive for the development of green energy.").

Government-sponsored research and development is not without problems. The government would have to choose which projects to fund, and decisions made by government agencies are more likely to be politically motivated and less likely to be commercially sound than decisions made by entrepreneurs with an economic interest in success. See Esty & Porter, supra note 16 ("Experience in fields like information technology and telecommunications suggests that creating demand for innovation is far more effective than subsidizing company-specific research projects or providing incentives for particular technologies. Governments just aren't good at picking winners; witness the billions wasted on corn-based ethanol subsidies."). But government-funded research has historically led to spectacular successes (e.g., the Internet, GPS), and much of it has probably been more useful than wasteful. Moreover, unlike limits on carbon emissions, government-sponsored research is likely to have an entirely stimulative effect on the economy.

In short, a prudent approach to climate change should consist of two elements: (1) substantial government funding for clean energy research and development, and (2) limits on greenhouse gas emissions that begin at a modest level but gradually escalate in accord with a predetermined schedule. As noted earlier, there are many types of emission limits. I favor taxes over ceilings because the former are easier to calculate and administer, and send clearer signals to other businesses. But the choice among types is not critical. As Singer indicated, any type of limit will put a price on greenhouse gas emissions. Moreover, ceilings are likely to be easier to enact than new taxes. Even this moderate program, however, is unlikely to be adopted if China, India, and other rapidly developing countries refuse to participate.


The developing countries have a sympathetic argument for refusing to take major steps to limit greenhouse gas emissions. The United States and other developed countries have historically been the world's largest source of greenhouse gas emissions. For years, they poured large quantities of greenhouse gases into the atmosphere as their economies expanded and their citizens attained an increasingly high standard of living. Why shouldn't China, India, and other developing countries be allowed to do the same thing until their citizens achieve a comparable level of prosperity?

The answer is simple: no major emitter of greenhouse gases is likely to limit its emission unless other major emitters do so as well. The United States and Europe may devote substantial funds to research and development, but the international community is unlikely to adopt material and binding restrictions on greenhouse gas emissions unless China and India make comparable commitments.

Neither the U.S. nor the EU will allow themselves to be placed at a competitive disadvantage relative to these countries. Moreover, the adverse effects of climate change are unlikely to be reduced substantially unless all the major emitters act together; greenhouse gas emissions and climate change do not respect national boundaries. As a result, the developed countries and the leading developing nations are engaged in what Kunich calls "the longest and highest-stakes game of 'Chicken' in history, with all key players daring the others to move first." See Kunich, supra note 2, at 131. ("The United States never even ratified the Kyoto Protocol because of concerns that its economy would be placed at a major disadvantage compared to its burgeoning competitive rivals, including [greenhouse gas] giants such as China and India. The United States' inertia is complemented by the reluctance of such emerging/developing economic powers to accept restrictions on their own emissions that could disrupt their progress before reaching a level of prosperity, quality of life, and social stability similar to that of the United States.").

Unless this collective action problem is solved, the world is unlikely to do anything important about climate change until a calamity occurs. China may take some actions that are grounded in its own interests, like imposing penalties on inefficient power plants, since those actions reduce its own air pollution and lower its own energy costs. But China is unlikely to curb greenhouse gas emissions in a much more substantial way, unless other large emitters do at least as much. To move forward, therefore, the United States and the European Union should agree on a program they would implement if China, India, and other rapidly developing nations agree to follow, and then use diplomatic and other tools to bring these countries into line. For instance, the U.S. and EU could offer increased economic cooperation and investment as a reward for participation. In addition, they could threaten to impose trade sanctions if China, India, and other major developing nations do not adopt comparable emissions limits. To be sure, trade sanctions may provoke a trade war, which could lead to worldwide reductions in employment, output, and economic growth. But to end the game of Chicken and reduce the risk of an environmental catastrophe, the threat of a major economic disruption may be needed.


A prudent approach to climate change would not ignore the problem. The risks of inaction are too significant. If the world fails to take steps to avert global warming and simply waits to see what transpires, future generations may witness a human and environmental disaster of the first magnitude. At the same time, it would be unwise to impose major, immediate curbs on greenhouse gas emissions, given the uncertainties that pervade this area and the precarious state of most economies. A prudent approach to climate change would consist of moderate steps that have a reasonable chance of being cost effective.

In this article, I suggest two: (1) substantial government funding for clean energy research and development, and (2) limits on greenhouse gas emissions that are initially modest but gradually escalate in accord with a predetermined schedule. Both steps would move the economy away from traditional, carbon-based sources of energy and toward technologies that would have fewer adverse effects on the world's climate. The increase in funding for R&D would simulate innovation directly; the emissions limits would do so indirectly, making it more costly for producers and consumers to use older, more carbon-intensive technologies and more advantageous to develop cleaner alternatives. Both policies, moreover, could be expanded or accelerated if the risks of climate change appear greater or more likely than they do now.

If this program is in fact sensible, it will be easier to persuade China, India, and other emerging economies to adopt something comparable. And if more than persuasion is required, there are diplomatic and other tools available, including the threat of trade sanctions if these countries insist on free riding on the climate change efforts of the developed world.

Kunich is right: climate change policy is a gamble. But since we are "betting the earth," it is a game we should not sit out.


Professor of Law and Associate Dean for Strategic Planning and Mission, Seattle University School of Law; Editor, Research in Law and Economics: A Journal of Policy; Senior Fellow, American Antitrust Institute. Many people have helped me understand the issues involved in climate change, including Victor Flatt, John Kunich, Marcus Lee, Catherine O'Neill, Alec Osenbach, and Leah Peterson. I am grateful to them all. I also appreciate the research assistance that staff members of this journal have provided.

Published in Latest Articles
Saturday, 13 August 2011 19:19

Open-Eyes Environmentalism


Our biggest decisions must be made with our eyes open to as much information as possible. The concept is so obvious that it feels ridiculous even to state it explicitly. When we have much at stake, it only makes sense that we would want all our senses and all our resources working for us. Life-changing or even life-and-death decisions do not belong in the care of wild guesses, unfounded assumptions, or arrogant refusal to consider the facts. As a poker player, before I go all in and jam my chips toward the middle of the table, I like to look at my cards, both of them. It is not a superstition; it is simply logical.

We all know this, at least on an intellectual level, yet sometimes we make major life choices foolishly, either without regard to rationality or in direct conflict with it. When we disregard logic and reason, acting blindly on the basis of raw emotion, unquestioned assumptions, unexamined bias, or unhinged instinct, we and our loved ones often pay a terrible price in the form of heartbreak and personal tragedy.

The need for sound, logical decisions, supported by evidence and thoroughly analyzed, is infinitely greater when we move from the personal level to the global scale. Challenges facing the environment today are literally earth shaking in their magnitude, with the potential to affect the entire planet for hundreds of years to come. Unfortunately, we are, collectively, either ignoring these questions or attempting to answer them in the midnight dark with our eyes clenched closed covered by thick blindfolds. As a law professor, lawyer, and erstwhile law student, I know from long, excruciating personal experience how much time and energy we in the legal profession devote to the most minuscule and obscure fine points of law and policy. We are keenly aware of the overarching impact the decision of what rules of law to adopt and their application can have on our individual lives and on our society as a whole. How then, when the fate of the planet is at stake, could the most vital global decision-making be relegated to a level of carelessness more appropriate for a flip of a penny?

My thesis, seemingly unremarkable yet oft neglected, is that issues on this colossal scale require that we keep both eyes open as we look at them closely. We should be honest about the stakes and odds of the gamble, and recognize that our own bounded rationality may skew how we approach these issues. Logic tools such as my World WagerA decisional device I have developed. It was originally named the Hotspots Wager because it was tailored specially to address the uncertainties associated with the potential for a modern mass extinction localized in the world's key biodiversity hotspots habitats. However, the same general method can be adapted to fit the issue of global climate change, transboundary air pollution, population pressures, or any other scenario in which we must make a tough environmental choice, with a lot at stake, without the benefit of air-tight underlying factual certitude on one or more relevant factors. Therefore, we can acknowledge this tool's fundamental flexibility and, in its more generalized form, give it the new name of "World Wager." and its accompanying decision matrix can help us decide the environmental issues upon which we should take a "might as well" stance and, alternatively, those which we should entrust to caution and take drastic actions only as a "last resort." More specifically, in the context of climate change, the decision matrix shows that it would be irrational to make exorbitant and economically damaging changes to our societies and economies unless absolutely undeniable evidence of near-imminent disaster proves that this is our only hope. When mega-magnitude challenges such as the fate and survival of our planet demand our best bet, can we afford to blindly push all in?


The way we deal with environmental issues, or fail to deal with them, could determine the future to an extent that is difficult to overstate. Is anthropogenic climate change a formidable threat that demands swift and massive intervention by the world's largest emitters of greenhouse gasses (GHGs)? Is a modern mass extinction in progress that calls for a major reworking of biodiversity conservation law and policy? These are among the most momentous questions that people have ever faced, in any culture, at any point in history. Unfortunately, our millennia-ingrained, reflexive response instincts to sudden threats, pinned against a background of the subtle and gradual nature of typical environmental challenges, stand in the way of our ability to address these fundamental issues.

Our lengthy history as a species has hard-wired us to be alert for sudden, clear, immediate dangers. In the wild, predators for hundreds of generations stalked our ancestors as potential prey, looking for opportunities to pounce. Our distant forebears had to be constantly on the lookout for the first signs of the next attack. There was no prolonged lag time between the sharp sound of a cracking twig and the lethal charge, and no room for leisurely human rumination over the various possible interpretations of the intruder's intentions. Life's cruel reality demanded a reflexive, not reflective, approach.

Our prototypical threat response—the classic primal fight-or-flight reaction to danger—evolved in that savage context, and so we became adept at watching for and reacting to the breed of obvious, fast moving, imminently deadly threat typified by our ancestral predators. For better or for worse, we have inherited that predisposition through generations of conditioning, and have been doing a very poor job of adapting to changed or changing circumstances. The problem with this is that our modern environmental hazards bear no resemblance to a bear, unless maybe it is one we stumbled upon while it was half-hibernating. Today, we have to grapple with threats of a vastly different nature. This is not the fight we were born to tackle.

Climate change and mass extinction are the complete opposite of the fight-or-flight imminent threats we are adapted to detect and confront. Unlike lions or wolves, these "environmental predators" of today are excruciatingly subtle, slow moving, incremental, and hard to see.Michael H. Glantz, Creeping Environmental Problems, Prototype Training Workshop on Water Affairs, Hanoi, Vietnam (Dec.4–7, 2006), proceedings available at http://ccb.colorado.edu/waf/docs/document.pdf. Gradual, creeping dangers are nothing like the roaring, sharp-fanged carnivores that hunted our forebears. They can take hundreds or even thousands of years to work their baleful damage, and the evidence before our eyes on any given day looks quite unremarkable. This is a textbook case of calamity masquerading as calm. Temperatures fluctuate, weather behaves much the way we are accustomed to, the ocean levels seem about normal, and instances of melting or spreading of ice cover are subject to varying interpretation. Likewise, the official International Union for Conservation of Nature list of recently extinct species remains quite short, and rarely grows, dwarfed by the ever-expanding roster of more than 1.7 million identified living species in the world today.Press Release, Int'l Union for Conservation of Nature, Extinction Crisis Continues Apace, (Apr. 1, 2011) http://iucn.org/about/work/programmes/species/red_list/?4143/Extinction-crisis-continues-apace. The press release states that seventy-nine of the world's 5,490 mammal species are "Extinct or Extinct in the Wild." There is life, and even exotic life, all around us. The zoos are full of spectacular charismatic megafauna. Is this a mass extinction? Where is the irrefutable dramatic evidence we are so hardwired to expect?

Despite the appearance of normality, there is considerable legitimate scientific evidence on the issues of both past and present climate change and mass extinction. This evidence, however, is of a decidedly different form. As explained in my latest book, Betting the Earth: How We Can Still Win the Biggest Gamble of All Time, these phenomena are now, and have always been, gradual and incremental in their progress and impact.John Charles Kunich, Betting The Earth: How We Can Still Win The Biggest Gamble Of All Time (2010). Even historic mass extinctions like the K-T extinction spasm that wiped out the dinosaurs, although begun by a catastrophic asteroid strike, took thousands of years to inflict the vast bulk of its damage. The extinction was touched off by a single sudden Mesoamerican impact from outer space, but it was the slow-moving systemic aftershocks (increased volcanic activity and earthquakes, widespread fires, and planet-wide climate change induced by large amounts of smoke, dust, sulfur, and particulate matter added to the atmosphere) that destroyed most species far from the initial collision point. These impacts took centuries to manifest, in complete contrast to the abrupt, mostly localized, precipitating trigger event. The same is true for climate change, even when considering the most extreme examples from our planet's history. It is a gradual, insidious, easy-to-miss predator, as different from a spectacular and immediate crisis as an intestinal parasite is different from a lion, but not necessarily any less deadly in the final analysis.

When an environmental challenge is subtle and gradual, there is inevitably conflicting evidence, making avoidance of the problem all too easy. Depending on where we look and what types of evidence we credit or reject, we can arrive at very different conclusions as to the reality, the dimensions, the imminence, and the probability of harm. Moreover, there are gaps in our information, gray areas in our predictions, and question marks where we instinctively look for exclamation points. These gaps are variables and unknowns relevant to our decision making, and yet unfortunately may never be fully resolved.

Most people respond in one of two ways to subtle, gradual problems such as biodiversity loss or climate change. Many of us ignore them entirely, as if they did not exist at all, rather like disregarding our own weight gain, chronic fatigue, or even the early warning signals of cancer. We pay no attention to those ambiguous little symptoms and hope they will just go away or at least will not amount to any cause for alarm. In the alternative, if we are persuaded that the threats are genuine, we tend to exaggerate both the magnitude and the immediacy of the dangers in an attempt to shock our complacent friends (and our personal doctors) out of their deluded slumber. Well intentioned but misguided, we might inflate and distort the hazards in a type of propaganda campaign, making them appear to be the type of sudden, dramatic, short-fuse crises people are preconditioned to pay attention to and confront. Neither approach—neglect nor manipulation—is likely to earn us admission into the Rational Decision Makers' Hall of Fame.

A complex network of interlaced issues, facts, and gaps in information encompass our climate change and mass extinction dilemmas. Many of us are ignoring, or are ignorant of, the problems and are content to busy ourselves with myriad other things that appear to be more interesting, immediate, or important to our own lives. The rest of us are mostly confident we already know what we need to know, we understand what needs to be done, and that everyone else should listen to us and follow our lead. Regardless of our position, those who do not agree with us are ill informed at best and malevolent at worst.

This sad situation is a classic, thoroughly time-tested recipe for making awful decisions. Why are we doing this to ourselves and to our posterity? Why are we making fool's bets with our planet and squandering the opportunity to marshal vast informational resources to do all we can to choose wisely for the earth's future? Have we all somehow conspired to preserve our guesswork in as uneducated and deliberately ignorant a state as possible? As exemplified by the recent "Climategate" scandal,See Robert Mendick, Climategate: University of East Anglia U-Turn in Climate Change Row, Telegraph (London), Nov. 28, 2009, http://www.telegraph.co.uk/earth/copenhagen-climate-change-confe/6678469/Climategate-University-of-East-Anglia-U-turn-in-climate-change-row.html.the world's leaders and citizens alike again are throwing away the chance to get it right on these colossal questions.

I do not pretend to know all the answers to these crucial questions facing our world. I only know that we must frame our questions correctly and be open to a logical, rational, and probability based assessment of all credible and relevant evidence, regardless of its source or implications. The sad truth is that some of the deadliest dangers in life, on both an individual and a global scale, sneak up on us stealthily instead of kicking in our front door, and this does not automatically render them any less real or any less lethal. These issues are far too important to trust to chance, unsupported assumption, or uneducated guesswork. If we try to gain a quick victory in the debate and skip to the happy ending by pretending the evidence is overwhelmingly on our side, without acknowledging any significant gaps or contradictions, we ultimately damage our own cause when the truth is revealed and we are exposed in our willingness to cry wolf, even endangered ones. Only a fair, honest assessment of all the facts, weaknesses and holes included, gives us a reasonable chance to get the right answer while at the same time persuading other fair-minded people.

Therefore, instead of expending substantial energy and resources debating whether we should follow the "hurry we must do everything we can" approach or the "it is all a bunch of lies" approach to vital environmental issues, we should focus our attention on analyzing the available, if incomplete, evidence to help our decision makers make momentous decisions that result in the best bet. When you are gambling with what you absolutely cannot afford to lose, you want every light on, every distraction shut out, and a careful analysis of expert advice from the best possible minds.


How do we deal with the unknowns—those gaps in our required, essential information—so central to making the right judgments yet so persistently unclear? A methodical approach that uses the best and most sophisticated tools available from the discipline of Decision Analysis can help us make the correct decisions on such complex, subtle, nuanced, and glacier-paced issues even where there are variables that should be considered but yet remain maddeningly and even permanently elusive to definitive clarification. To that end, I have proposed a variation of Pascal's WagerPascal's Wager is the argument that man should wager that God exists, and live in the mode that such existence dictates, despite the impossibility of determining such existence through the use of reason. Pascal's Wager was groundbreaking as it had chartered new territory in probability theory and marked the first formal use of decision theory. Pascal's Wager is a framework for formulating a wise decision concerning a momentous matter when there are some major unknowns relevant to the equation. See Alan Hájek, Pascal's Wager, Stanford Encyclopedia of Philosophy, (Apr. 1, 2010, 5:27 PM), http://plato.stanford.edu/entries/pascal-wager/. and the accompanying Decision Matrix to handle this daunting task—a separate version for each of the two most daunting contemporary environmental issues: climate change and mass extinction.Kunich, supra note 4 at 127–210. The Climate Change WagerId. at 213–23. and the Biodiversity WagerId. at 207–10. were derived from key insights in decision theory, including breakthroughs from intellectual titans such as Blaise Pascal, Kurt Gödel, and Edward Lorenz.

The main purpose of these tools is simple enough. They are designed, like Pascal's Wager itself, to enable us to make rational decisions on momentous, life-and-death matters, even when there are some key unresolvable unknowns relevant to making the correct choice. They equip us to place boundaries on the gaps in our evidence and to use reason to work through the upside and downside potential outcomes of our various options. Like a global game of Deal or No Deal or "the lady or the tiger," our modern environmental dilemmas are forcing us to make the hardest of hard choices, in the foggy midst and mist of unending uncertainty. The Wagers and their Decision Matrices offer a solution that empowers us to make rational cost-benefit and best-case or worst-case analysis of the vast problems.

These methods are, at their core, a device for methodically and logically dealing with uncertainties and gaps in the key evidence, with full acknowledgement of pertinent probabilities. When all the permutations and combinations of possible but unknowable values of each variable tend to lead to the conclusion that we have more to gain and less to lose by selecting one option, and less to gain but more to lose from the alternatives, these tools allow us to realize this important reality and incorporate it into our decision making. This is a crucial contribution, as it provides a way for us to place the unknowns in a box and limit them to a manageable, confined space with which we can deal reasonably. By building boundaries around the fog and containing it, we have a better shot at making our judgments in clear air.

The Wagers and Decision Matrices assist us in distinguishing between situations in which being proactive should be our default option (Type R errors) and those in which we should tend to err on the side of caution (Type P errors). I introduced these two variations on the familiar scientific taxonomy of Type I (false positive)Id. at 329–35. and Type II (false negative)Id. errorsA simple hypothetical example of a man being screened for prostate cancer can help illustrate the concept of these two types of errors. Statisticians approach it like this: Begin with the null hypothesis, that the patient does not have prostate cancer; the alternative hypothesis is that cancer is present. If the null hypothesis is rejected when it is in fact true (the patient tests positive for cancer when the patient is well), this is a Type I error or "false positive." If the null hypothesis is not rejected when it is in fact false (the patient tests negative when the patient's prostate is cancerous), this is a Type II error or "false negative".in Betting the Earth. Type R mistakes are sins of commission, or failures related to aggressiveness. "R" stands for restless, and represents a preference for being proactive—for striking out swinging rather than with the bat on your shoulder.Kunich, supra note 4 at 335–44. Conversely, Type P errors are sins of omission, or mistakes that follow from inaction. "P" stands for passive, and reflects a predilection for standing pat, erring on the side of maintaining the status quo, and making no major change unless called for by clear and potent reasons.Id.

Neither Type R nor Type P errors are generally better or worse than the other under all circumstances. The effect of either hinges on the specific situation in an acutely context-dependent way. The variety of mistakes we should be more willing to accept when making decisions related to combating environmental problems such as mass extinction and climate change will vary based on the factors associated with the type of activity under consideration.Id. at 207–223.To state the matter in the simplest possible terms, everything turns on whether we are in a "might as well" or a "last resort" situation.

My Wagers look at all the possible permutations and combinations of the actual (but impossible to ascertain) values for each relevant variable.To use the climate wager as an example, say if we decide not to launch a major greenhouse gas control worldwide campaign, when the true amount of further abnormal temperature rise in future if left unchecked is high, the true extent of net harm from future temperature rise if left unchecked is high, and the true degree of human ability to shift climate adequately by design is high, the result of decision would be a first order grave error.

On the other hand, if we decide to launch a major greenhouse gas control worldwide campaign when indications of the three factors are low, then the result of decision would be a very costly insurance. See Id. at 221. Then they let us compare what would happen under each of those situations if we decide to make one choice or another. Even though we cannot know the true value of each unknown, we can grasp whether we have more to gain and less to lose by making one choice, or vice versa. They allow us to distinguish between situations in which it would be "penny wise and pound foolish" not to intervene (my "might as well" category) and those where we might "act in haste and repent at leisure" by taking needless actions (the "last resort" syndrome). As in Pascal's original wager, reason would suggest that we select the option that offers us the most benefit and the least risk for the lowest cost. To accomplish this, we must first determine the best and worst that could happen under all applicable alternatives and sets of circumstances. This is what the Wagers do.

Here is an example of this form of decision analysis to which most of us can relate. Whether we own a house or rent an apartment, we have some type of dwelling where we keep most our property and refer to as home. Each year, we need to decide whether to pay for fire insurance on our home and property. If we take on this decision rationally, our choice will turn on several factors, including the cost of the insurance premiums, the replacement value of what we own, the probability that our home will be destroyed by fire in the next year, and what we would have to sacrifice either to pay the premiums or to replace our lost property ourselves. We can define each of these factors fairly well if we do a little checking. The one thing we cannot know for certain in advance is whether our home will in fact be burned down during the year just ahead. But if we use a variant of Pascal's Wager, as I have done for Climate Change and Biodiversity, we can incorporate that uncertainty and still make a reasoned decision.

If the premiums cost very little compared to our available resources, are much less than the value of what we stand to lose if there is a fire and we have no insurance, and we are persuaded that the insurance would actually pay off if we needed to make a claim, we are in a "might as well" situation. Even if there is a low (but not zero) probability of a fire hitting our home in the next year, it makes sense to spend the small amount of money to insure against what would be a far larger loss. But if the premiums are so expensive that we would have to make deep, life-changing sacrifices in order to pay them, or are not significantly less than the value of the property we own, or we are not confident the insurance would even pay off if we had to file a claim, then we are in a "last resort" situation. We still might find it prudent to buy the insurance, but it is a difficult and close call to be selected if it is essentially the only chance we have. Our "last resort" scenario is very different from the "might as well" scenario.

The "might as well" and "last resort" situations relate to Type R and Type P errors. In those sets of conditions that fit into the "might as well" mold, we should prefer to make Type R errors when we are in doubt as to what to do. It costs so little and could save us so much, we might as well be aggressive and proactive, and err on the side of taking the precaution, even if the probability that we will end up needing to avail ourselves of the protection is very low (but not zero). Despite that we cannot definitively know in advance the real situation or the value of each unknown or variable, our rational analysis tells us that it is generally better to pay for the insurance under "might as well" circumstances. Conversely, in "last resort" situations our default option should be to commit Type P errors. Not that we ever want to make errors, but in the face of uncertainty in "last resort" scenarios we usually should be conservative and cautious in our actions. This is so because we must give up so much to take the precaution, making very large, actual, immediate and long-term sacrifices for the possibility of averting a somewhat larger loss, that we should only exercise this option as a last resort, if all else fails.

I think we intuitively know the distinction between "might as well" and "last resort" situations, and the relationship between them and a reasoned preference for either Type R or Type P errors. Even if we have never actually thought about it in explicit terms, this resonates with us because at some level of ratiocination we have made this sort of judgment call many times in our own life experiences. We easily distinguish between circumstances in which it costs us only $300 per year to reliably insure our life's considerable accumulation of property and those in which we would have to pay $20,000 a year for uncertain protection. Much like Supreme Court Justice Potter Stewart once wrote in a rather different context,See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., Concurring). we know a "might as well" scenario when we see it, and we understand that a willingness to tolerate a preponderance of Type R errors comes with that territory. Likewise, we know a "last resort" situation when we see it, and we understand that Type P errors should be our default option there.


Many concerns caution us to place climate change in the "last resort" category. A combination of the uncertain efficacy of corrective measures, questions about the extent and imminence of harm resulting from the unaltered status quo, and immense expenditures and opportunity costs associated with intervention makes Type P errors the rational preference. This is so because the profound, multi-faceted, fundamental transformations necessitated by climate intervention are well beyond the level of expense and life-altering consequences associated with any ordinary form of life, health, or home insurance.

If we insist on adhering to the insurance analogy, engaging in climate intervention tactics would perhaps be most similar to an attempt to buy life insurance when we already have clear symptoms of a nearly incurable condition at an advanced age. When you try to buy life insurance with one foot in the grave it likely is not even available, and if it is, the price is enormously higher than if you were young and healthy. You would probably have to sell your car, mortgage your house, and make other major sacrifices to be able to afford the astronomical premiums. Similarly, instead of being fairly easy, painless, routine, affordable and accompanied by tangible positive side effects, the interventionist option under the climate issue is extremely difficult and expensive on several levels, requiring multiple core-shifting reworkings of the pillars of modern society.

Through a messy and haphazard jumble of actions and inactions, the world has collectively stumbled toward this same conclusion. The United States never ratified the Kyoto ProtocolThe Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change (UNFCCC). The major feature of the Kyoto Protocol is that it sets binding targets for 37 industrialized countries and the European community for reducing GHG emissions. These reductions amount to an average of five percent below 1990 levels over the period 2008-2012. See http://unfccc.int/kyoto_protocol/items/2830.php. because of concerns that its economy would be placed at a major disadvantage compared to its burgeoning competitive rivals, including GHG giants such as China and India. The United States' inertia is complemented by the reluctance of such developing economic powers to accept restrictions on their own emissions that could disrupt their progress towards achieving a level of prosperity, quality of life, and social stability similar to that of the United States. It is the longest and highest-stakes game of "Chicken" in history, with all key players daring the others to move first.

The difficulty of finding a core of shared interests to unite the world's nations on environmental issues can also be observed in the obstacles we face cobbling together international cooperation to create a successor to the Kyoto Protocol. As of this writing, the Kyoto Protocol will expire in less than two years. There is no international agreement ready to replace Kyoto. In fact, the most recent two Conferences of the PartiesUNFCCC parties meet annually in Conferences of the Parties (COPs). Both COP 15 in Copenhagen and COP 16 in Cancun failed to a binding agreement for long-term action. See http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf. have come nowhere near to producing a successor. If the Kyoto Protocol expires with nothing to stand in its stead, it will be because the major GHG producers have concluded that it is not worth it, all things considered. Very different economic and social circumstances, risks from rising ocean levels, per capita emissions, aggregate emissions, and technological capacity have combined to render further agreement on climate change action extremely elusive.

Fortunately, this is where the real value of the Climate Change Wager and Decision Matrix presents itself. By framing the issue and its component parts in an easily examined context, these tools enable us to focus on the few elements of the problem over which we have any control. The Decision Matrix shows us that it would be irrational to make exorbitant and economically damaging changes to our societies and economies unless undeniable evidence of near-imminent disaster proves that this is our only hope. This points us in the right direction. If we are to engage on the issue of anthropogenic climate change, we must either make intervention much less costly (or, even better, lucrative) or sweep away the scientific uncertainties that undermine our sense of urgency and approaching danger. That is what it would take to transform the issue of climate change intervention from a Type P "last resort" situation to a Type R "might as well."

We have a very bad record of making deep and painful sacrifices absent impossible-to-miss signs of impending doom. Frankly, unless we make the scientific and technological breakthroughs necessary to take the weight of the world off our shoulders by making a response to climate change economically advantageous, it will be politically impossible to generate adequate support for climate change intervention. This political impasse could change if the costs were not so onerous, or if it were actually economically beneficial to do something meaningful about GHG emissions while still maintaining a competitive and productive economy, nation by nation.

Technological advancements in energy production and usage might make reduction in greenhouse gas emissions much less costly, or even profitable. When people can "do well by doing good," the built-in incentives provide ample inducement for action with no attendant need for government to coerce anyone. The search for economically viable and efficient low-carbon, low-pollution sources of power can supply its own reward, even if motivated largely by the hunger for profits instead of noble altruism. Self-interest, in terms of economic gain, is a very potent motive force, often more powerful than even fear of punishment, and we would do well to try to harness it.All forms of energy are expensive, but as time progresses renewable energy generally gets cheaper, while fossil fuels generally become more expensive. There has been a continuing trend in commercialization of renewable energy. Global revenues for solar photovoltaic, wind power, and biofuels expanded from $76 billion in 2007 to $115 billion in 2008. New global investments in clean energy technologies—including venture capital, project finance, public markets, and research and development—expanded by 4.7 percent from $148 billion in 2007 to $155 billion in 2008. Globally, there are an estimated 3 million direct jobs in renewable energy industries, with about half of them in the biofuels industry. Joel Makower et al., Clean Energy Trends 2009, 1–4, available at http://www.cleanedge.com/reports/pdf/Trends2009.pdf.If we can shift the corrective action from onerous to prosperous, our climate change decision flips from "last resort" to "might as well" and we can eagerly embrace the minor Type R errors as a mere cost of doing good business.

The only other change that could conceivably move the big emitters to make huge sacrifices would be a quantum leap in scientific knowledge that irrefutably and incontrovertibly provides proof that the world will suffer vast catastrophes, and soon, unless action is taken now. Past experience tells us that international cooperation is likely only when such undeniable evidence of imminent disaster hits the world in its collective face. However, we are nowhere near that level of unmistakable certitude with regard to climate change today, and even specialists in the scientific community disagree vehemently about the nature, degree, and timing of any widespread effects of rising GHG levels. When the scientists themselves cannot agree, the politicians of the world are guaranteed not to intervene, but instead will keep their feet firmly on the brake, with the vehicle in park and the parking brake on for good measure. Politically, deep sacrifice is the ultimate "last resort" option and can only be implemented under circumstances of the clearest and most cataclysmic clear and present danger.

An eyes open approach to environmentalism must acknowledge these and other practical realities, including a few of the less noble but nonetheless widespread human traits such as selfishness, obstinacy, impatience, and shortsightedness. Since top-down, command-and-control regulation is not currently solving the climate change problem at its source (emission of GHGs from fossil fuel energy sources like coal and oil), a more incentives-based strategy might yield innovative solutions. These could include market-based countermeasures to mitigate some of the harms, such as rising ocean levels, that may flow from climate change.

However, although new, GHG-free sources of energy could eventually address the emissions problem, these can only supplement but not supplant fossil fuels if they depend on heavy government subsidies or regulatory mandates for their market share. Every form of alternative energy has its own problems, and coercion via subsidies and mandates is no substitute for self-advancement as an inducement to working through the difficulties. All variants of wind, solar, nuclear, geothermal, hydrogen, fusion, tidal, and other low-emission energy candidates for the replacement of fossil fuels will ultimately have to out-compete the GHG-laden sources, fair and square, or self-interest will trump good intensions every time. But we are not there yet. In fact, much effort is still being exerted in the other direction, i.e., an attempt to force a solution to fit, through imposition of legal mandates.


In the absence of either a workable, enforceable international agreement or unilateral legislative action, the legal power has shifted to the executive branch (specifically its administrative agency regulatory components), with an assist from the judiciary—at least in the United States. The U.S. Supreme Court's landmark decision in Massachusetts v. EPA empowered the Environmental Protection Agency to decide whether it should regulate certain GHGs under the Clean Air Act.549 U.S. 497 (2007).The EPA, in turn, issued both an "endangerment" determination and a "cause or contribute" determination. Together, these findings essentially mandate that the EPA treat GHGs as "regulated pollutants" within the Clean Air Act's far-reaching terms. Potentially, this gives the EPA immense power to regulate many thousands of sources of GHGs never before governed by the Clean Air Act, including requirements for Title V permits, New Source Reviews, Best Available Technology mandates, and other provisions. But with gasses like carbon dioxide and methane naturally occurring in large quantities, the Clean Air Act approach appears to be a poor fit,See Nathan Richardson, Greenhouse Gas Regulation under the Clean Air Act: Does Chevron Set the EPA Free? 29 Stan. Envtl. L.J. 283 (2010). tailored as it is to small-quantity gasses like carbon monoxide, sulfur dioxide, and ozone.

The power vacuum left by the failure of the legislative process, domestically and internationally, has left the door open to the Massachusetts v. EPA brand of legal action. A new Congress with greater Republican representation may try to remove this unilateral regulatory authority from the EPA, while the Democratic leadership attempts to let the regulators handle the situation without the need for new legislation. But this legal scramble that threatens to send the United States' GHG policy careening toward chaos could have been averted—and still might be averted—if decision makers consider all the facts and uncertainties within a rational and probabilistic framework. The Climate Change Wager and Decision Matrix can inject a dose of much-needed logic and objectivity if we are willing to step back and try a new approach. It might not be too late. The alternative is a politics-dominated status quo where most of us have one or both of our eyes tightly closed to inconvenient facts.


I chose the title of this article in order to highlight an alternative to the widespread and self-destructive practice of formulating our most Earthshaking environmental decisions with our eyes closed to the discomfiting nuances of reality. Of course, I do not claim in any way to eliminate risk from the equation. It cannot be done, in environmental law and policy or in any other enterprise involving life. Nevertheless, risk and uncertainty do not vanish just because we close our eyes and pretend they do not exist. What I do claim is this: like any good poker player, we have a better chance of winning if we get our chips into the middle of the table "with the best of it," i.e., with the probabilities in our favor. The element of risk is ever-present, but the best players learn how to leverage risk: how to use it, together with all they do and do not know, to gain an advantage. This only works if we keep our eyes and our mind open to absorb and analytically process as much of the available pertinent information as possible.

This requires a great deal of sustained hard work, attention to minute and nuanced detail, and patience, together with a resolute determination to maximize our resourcefulness and ingenuity. In poker, this includes looking carefully at our own cards, the other cards on the table, past tendencies, the amount of chips at risk, available to wager, and available to be won, and the relevant probabilities of various contingencies. It is fundamentally no different when we are betting the Earth. I created my decisional tools because I learned that we are not leveraging risk in making the weightiest decisions in the world; on the contrary, we are either blindly ignoring risk or lying about it to make the most audacious, and even reckless, all-in bluffs.

We can read a shelf of books devoted to global warming and endangered species, and come away from the experience more confused than we were before. Many books and law review articles, irrespective of whether they are environmentally activist or skeptical, oversimplify and omit key aspects of these momentous issues while depicting dissenting opinions as mere caricatures at best. There is far too little genuine debate or engagement on the issues, the gaps, the odds, and the actual evidence. As a result, our biggest environmental legal and policy judgments are treated like matters of religious dogma, to be accepted unquestioningly as articles of faith and shielded from genuine open-minded examination. With that as our paradigm, we cannot expect to make the correct decisions more often than we would through random chance.

We can and should avail ourselves of the most powerful tools of decision analysis when making these life-and-death judgment calls. With the planet at stake, we need to do a better job dealing with risk and making uncertainty, cost-benefit ratios, and probability work for us instead of against us. The thought experiment exercise offered by my Wagers and Decision Matrices can be helpful as an aid to cutting through the Gordian Knot of convoluted issues and distracters tangled all around our contemporary environmental dilemmas.

Some of the greatest minds in all history have given us these mechanisms, designed for the biggest of big picture issues. Pascal knew how to recognize a pivotal question, and he created a means for making wise choices involving them. We owe it to ourselves and to future generations to do the same. We must open our eyes and deal with all the circumstances, including the reality that while some of the most momentous sentences end with an exclamation point, others end with a question mark.


John Charles Kunich is a Fulbright Senior Specialist and Professor of Law. He recently served at the Indian Law Institute in New Delhi, India, where he taught a course on international environmental law. He is the author of seven books and numerous law review articles, primarily in the field of environmental and natural resources law. He sincerely thanks his wife, Marcia K. Vigil, and their daughters, Christie Kunich and Julie-Kate Kunich, for their love and support.

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Recognizing that federal action would be difficult under the administration of George W. Bush, Seattle Mayor Greg Nickels led an initiative in 2005 to convince other U.S. Mayors to join Seattle in reducing climate pollution by the standards set forth in the Kyoto Protocol.Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998). Adopted in Kyoto, Japan, on December 11, 1997, and entered into force on February 16, 2005. The Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change. The major feature of the Kyoto Protocol is that it sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas (GHG) emissions. Since then, more than 1,000 mayors from all fifty states have signed onto the agreement.City of Seattle Office of Sustainability & Env't, Seattle Climate Protection Initiative: Progress Report 2009 1 (2009), available at http://www.seattle.gov/archive/climate/docs/CPI-09-Progress-Report.pdf [hereinafter Climate Progress Report]. In order to achieve the goals of the Kyoto Protocol, Seattle had to identify and adopt new policies dedicated to reducing greenhouse gas emissions, primarily CO2. Because buildings represent 38.9% of primary U.S. energy use and 38% of all CO2 emissions,Stacy Ho & Satya Rhodes-Conway, A Short Guide to Setting Up a City-Scale Retrofit Program 2 (Green For All & Ctr. on Wisconsin Strategy eds., 2011), available at http://www.greenforall.org/resources/a-short-guide-to-setting-up-a-city-scale-retrofit. reducing energy use in residential and commercial buildings has become a policy priority for Seattle.

It was by no small feat that, by 2008, Seattle's citywide emissions met the reduction target of the Kyoto Protocol.Climate Progress Report, supra note 2, at 16. Carbon emissions for residential buildings were decreased to 18% below 1990 levels, a small coup for the energy sectorCity of Seattle Office of Sustainability & Env't, 2008 Seattle Community Greenhouse Gas Inventory 11 (2008), available at http://www.seattle.gov/archive/climate/docs/2008-community-inventory-fullreport.pdf. as most building emissions come from commonly used items such as home heating, appliances, hot water and fuel for landscaping equipment.Id. at 3. Seattle's most significant reductions in the building sector emissions came from residential buildings because of a shift from oil to natural gas as a home energy source and Seattle City Light's shift from natural gas and coal-derived electricity to renewable sources of energy.Id. at 4.

Despite this early success, however, Seattle must continue to embrace system-wide change in order to stay on track for reaching carbon emission reduction goals.Climate Progress Report, supra note 2, at 17. This includes accounting for population growth and incorporating energy efficiency measures. On June 30, 2010, the Washington State Office of Financial Management indicated that between 2008 and 2010 Seattle had a net increase of 12,500 housing units.Wash. State Office of Fin. Mgmt., April 1 Housing Units by Structure Type for Counties, Cities, and Towns: 2000 Through 2010 (2010), available at www.ofm.wa.gov/pop/april1/hseries/default.asp. The total population of Seattle in this same timeframe increased from 592,800 to 612,000.Wash. State Office of Fin. Mgmt., Rank of Cities and Towns by April 1, 2010 Population Size 1 (2010), available at www.ofm.wa.gov/pop/april1/rank.pdf. These statistics indicate that by 2030 new buildings will need to be carbon neutral and existing buildings retrofitted.Climate Progress Report, supra note 2, at 18. Consistent with this need, the City of Seattle's Office of Sustainability & Environment reported in its Seattle Climate Protection Initiative: Progress Report 2009 that "the city has looked to deepen the level of energy efficiency investments, while keeping an eye toward making them available to everyone—regardless of income or whether they benefit a renter or a homeowner."Id. at 9.

Seattle's Green Building Initiative, discussed in Part II, is part of the City's efforts to reduce emission from the building sector. Part III discusses two common implementation options that have been proposed nationally and analyzes their potential application in Washington State. Part IV analyzes the constitutional hurdles that threaten to impede energy efficiency financing, looking in particular at House Bill 2853. Finally, this article will conclude by succinctly stating the case for the passage of legislation like HB 2853, and reiterating the ability of cities like Seattle to effectively implement a utility on-bill financing policy.


In his 2008 State of the City Address, Mayor Nickels announced plans for a focused initiative to make Seattle the nation's Green Building Capital. He proposed that this could be achieved by improving energy efficiency of residential and commercial buildings, creating job opportunities in the green economy, and saving Seattle residents and businesses money on energy costs. In accordance with this goal, he established a Green Building Task Force to provide guidance.City of Seattle Office of Sustainability & Env't, City of Seattle Office of the Mayor & City of Seattle Dep't of Planning & Dev., Seattle Green Building Capital Initiative: Summary Report 2 (Apr. 22, 2009), available at http://www.seattle.gov/environment/documents/GBCI_Policy_Report_Final.pdf [hereinafter Green Building Report]. Fifty stakeholders were separated into two task forces: a New Building Committee and an Existing Buildings Committee.Id. at 3-4.

Among other things, the Existing Buildings Committee reviewed financing and repayment mechanisms to promote energy efficiency retrofits and catalyze energy efficiency investments. One program born of this effort was the City of Seattle's partnership with Puget Sound Energy (PSE) and Seattle City Light to develop and implement an eighteen-month residential energy performance audit for up to 5,000 small multi-family and single family residential customers in Seattle. Audits were subsidized to a rate of $95, down from a typical cost of $600, and the cost would be refunded when homeowners moved forward with retrofit recommendations.Id. at 11.

In addition to this partnership, the Green Building Task Force members reviewed issues relating to lack of access to adequate financing for efficiency improvements. Low-income residentsLow-income residents are defined as renters or homeowners at or below 200% of the federal poverty level. are already eligible for weatherization grants through the City's HomeWiseHomeWise is funded by both the state and federal governments. program, and the Task Force recommended that the City of Seattle work with a local community development financial institution to attract and manage a pool of public and private capital to finance loans for residential energy efficiency retrofits. The City's contribution would be in the form of Federal Energy Efficiency Block Grant funds, and the entire program would need to be expanded to $20-40 million in funds for loans.Green Building Report, supra note 13, at 12. This capital could be used to stimulate homeowner investments aimed at reducing CO2 emissions by upgrading lighting, furnaces, water heaters and windows. The retrofit pilot program would begin with a loan capital of $3-5 million and expected collateral in the form of a lien on the property being retrofitted.Id. Because of the diversity in income levels among potential participants, the proposed loan program would utilize a tiered payment structure, prioritizing greater subsidies for the lowest income borrowers.Id.


One of the chief difficulties with energy efficiency financing programs is the method of loan repayment. In 2009 the Washington State Legislature passed legislationS.B. 5649, 61st Leg., Reg. Sess. (Wash. 2009) (enacted). that paved the way for the state to use federal funding to provide technical assistance to weatherization pilot projects in the form of grants in various cities and municipalities.Ho, supra note 3, at 4. See also Phaedra Ellis-Lamkins, Historic Green Jobs Bill Signed in Washington State, Green For All, May 26, 2009, www.greenforall.org/blog/historic-green-jobs-bill-signed-in-washington-state. While this legislation was and is an important step forward, it is only the first step towards creating a comprehensive Green Building program with the potential to have the large-scale impact on job creation and energy efficiency improvements called-for by the Seattle Climate Protection Initiative.

The logical next step for the state, and for Seattle, is to move beyond grants and begin providing financing for energy efficiency retrofits. Funding for such retrofits, coming in the form of loans, has the potential to substantially increase the number of households eligible for retrofit projects. The primary obstacles to an energy efficiency financing program include eliminating the upfront capital barrier, which is especially problematic for low-income residents, eliminating the time barrier whereby a homeowner could move before paying off the retrofit but still feel the benefit of the retrofit, and eliminating the information barrier so that homeowners would have all the information needed to implement the results of an audit.

Various groups, including Green for AllGreen For All is a national organization founded by Van Jones and dedicated to working with business, government, labor, and grassroots communities to create quality jobs in a clean-energy economy. See generally Green For All, Making the Dream Real: 2009 Annual Report (2009), available at http://greenforall.org.s3.amazonaws.com/annual-report/2009/book_image/greenforall-2009-annual_report.pdf. and Center on Wisconsin Strategy (COWS),The Center on Wisconsin Strategy was founded by Joel Rogers at the University of Wisconsin, Madison to pursue practical, on-the-ground strategies in workforce development, green energy, transit, and healthcare. See generally Center on Wisconsin Strategy, About COWS, www.cows.org/about_index.asp (last visited Jan. 25, 2011). have highlighted the importance of setting up well-designed repayment mechanisms to the success of a retrofit program. Together, these elements will allow maximum realization of energy savings.Ho, supra note 3, at 4. The two models that have been pioneered elsewhere in the nation and that have gained the most traction are Utility Bill Financing and PACE.

A. Utility Bill Financing

Utility Bill Financing is a retrofit repayment mechanism that helps retrofits to occur on a large scale by allowing utilities customers to repay retrofit loans via installments on their utility bill. Utility Bill Financing in Seattle would allow for the electric utility (in this case, Seattle City Light) to loan ratepayers the capital (or services) necessary to retrofit their building, thereby eliminating the upfront capital expense that often makes retrofits unfeasible. The model differentiates between homeowners and renters, tailoring repayment plans to each group, with the goal of reaching as many residents as possible. A typical example would involve a homeowner first receiving an energy audit on his or her home. The audit would determine what kind of improvements could be made to the home to increase energy efficiency. Then, the utility would provide the capital or services to install the retrofit. Finally, the capital would be repaid to the utility by the homeowner through payments on the monthly or quarterly utility bill.

The strongest incentive to participate in this type of program is that the energy efficiencies made to the home can decrease the energy bill and counterbalance the cost of the home improvements. To be successful, the customers' savings in utility bills would be greater than the cost of repaying the capital.

Although the benefits of Utility Bill Financing are numerous, there are a few complications with this model, beginning with the barriers to renters. Tying the retrofit costs to an energy bill could provide an enormous benefit to low-income households, particularly renters. But renters are not able to initiate energy efficiency retrofits themselves, and are instead dependent on their landlords to make the decision to implement a retrofit. Landlords do not have the basic incentive, namely decreased long-term energy costs, operating in favor of energy retrofits.

Utility Bill Financing also faces challenges in effectively reaching low-income segments of the population. National statistics indicate that low-income households spend 14% of their income on energy utilities, compared to the 3.5% that median-income households spend.Ho, supra note 3, at 7. These statistics, coupled with the fact that low-income residents usually live in the least efficient housing stock,Id. at 8. emphasize the need for a retrofit program that can be effectively implemented among low-income households. To this end, marketing campaigns must be specifically directed at this segment of the population, and any potential retrofit program must be able to combat the general lack of understanding about financial mechanisms. A strong marketing system, including translation into multiple languages and partnerships with local community organizations, will be essential for the success of a Utility Bill Financing retrofit program in Seattle.

A final complication that Utility Bill Financing will face in Washington involves price increases and the Washington Utilities and Transportation Commission (WUTC). WUTC is the public service commission that has jurisdiction over utilities that are not owned by municipalities,Washington Utilities and Transportation Commission, History of the Washington Utilities and Transportation Commission, www.wutc.wa.gov/webdocs.nsf/0/52f2e63f2472ada788256e540078cbbc/$FILE/Brief%20history%20of%20the%20UTC.pdf (last visited Jan. 23, 2011). and all energy rate increases must be approved by the WUTC.Ho, supra note 3, at 6.

B. PACE Programs

One notable alternative retrofit repayment mechanism is Property Assessed Clean Energy (PACE) programs. PACE financing programs differ from Utility Bill Financing in that they attach the obligation to repay the cost of improvements to the property where the retrofits are installed.The White House, Office of the Vice President, Policy Framework for PACE Financing Programs 1 (2009), http://www.whitehouse.gov/assets/documents/PACE_Principles.pdf. PACE is applied at the local government level and allows property owners to attach up to 100% of the cost of energy improvements to their property tax bill. In the event of nonpayment, the local government has the option of foreclosing on the delinquent property.Id. at 2. Bonds to fund PACE programs can be issued by municipal financing districts or by finance companies, and the proceeds can then be used to retrofit residential property.New York State Passes PACE Finance Enabling Legislation, PR Newswire, Nov. 17, 2009, http://www.prnewswire.com/news-releases/new-york-state-passes-pace-finance-enabling-legislation-70276767.html. Fundamentally, property owners benefit from cash savings via energy savings that exceed the actual financing cost.

By attaching the retrofit costs to property tax bills, PACE programs create strong incentives for property owners to implement energy efficiency upgrades. PACE programs also avoid the potential conflicts with the WUTC because energy rates do not need to be adjusted. In 2008, California passed the first enabling legislation at the state level to allow for municipalities to create financing districts providing low cost retrofit capital to homeowners and building owners, secured by senior tax liens on their property.Id. Indeed, many state legislators were keen to support legislation that minimized the risk of financing energy efficiencies by attaching loans to property.Jennifer Runyon, Is There Still Hope for PACE?, RenewableEnergyWorld.com, Oct. 11, 2010, www.renewableenergyworld.com/rea/news/article/2010/10/is-there-still-hope-for-pace. In response, on November 19, 2009, Senator John Sarbanes of Maryland introduced the PACE Tax Benefits Act to support efforts by state and local governments helping homeowners and businesses install energy efficiency upgrades and to allow for them to raise capital tax free.155 Cong. Rec. E2836-04 (2009). In his speech he stated,

"This is an innovative and cost-free mechanism to encourage energy efficiency. The potential for economic growth and energy savings is vast if we establish a framework that allows for them to expand more broadly. By doing so, we will create thousands of new jobs; save billions of dollars in energy costs for consumers; and make significant progress in our efforts to reduce greenhouse gas emissions."Id.

Since 2008, PACE programs have been approved in more than twenty states,PR Newswire, supra note 32. but not in Washington.

PACE programs implemented elsewhere in the country were initially successful, but the financing mechanism operated as a senior lien on mortgage payments caused substantial push-back from the Federal Housing Finance Agency (FHFA).PACENow, Federal Regulatory Overreach, http://pacenow.org/blog/ (last visited Jan. 23, 2011). In 2010, the popularity of the model triggered the Federal National Mortgage Association (Fannie Mae), Federal Home Loan Mortgage Corporation (Freddie Mac), and the Federal Home Loan Banks to issue brief letters that suggested PACE violated standard mortgage provisions.Mark Zimring, Ian Hoffman, & Merrian Fuller, PACE Status Update (2010), http://eetd.lbl.gov/ea/ems/reports/ee-policybrief081110.pdf. By July of 2010 they were backed by the FHFA.Id. Responding to regulators' fears that PACE programs would constrain the ability of Fannie and Freddie to recover when a mortgage went into default, the FHFA instructed the entities to apply more restrictive mortgage underwriting standards for all borrowers in jurisdictions with PACE programs.Id.

As a result of the concerns raised by the FHFA, a PACE program does not seem to be a feasible option for Washington. The repayment mechanism appears especially ill-suited to current economic condition, and would require serious reworking before any legitimate attempt at implementation could be fruitful.


As already established, Seattle has been a pioneer in reducing energy use in buildings and has campaigned heavily to support energy conservation. Washington State's energy efficiency legislation, passed in May 2009, leveraged federal funding to provide grants and technical assistance to weatherization pilot projects. Later in 2009, Seattle City Light and PSE partnered to subsidize home energy audits for 5000 homeowners,Climate Progress Report, supra note 2, at 17. and in 2010, Seattle passed an ordinance requiring annual energy performance rating and performance disclosure in all multifamily buildings with five or more units.Seattle Municipal Code § 22.920 (2010). These projects have the potential of creating thousands of green-collar jobs, saving energy and money for homeowners, and cutting greenhouse gas pollution.Ho, supra note 3, at 4. But if Washington and Seattle are to continue on the trajectory of innovative energy conservation, the Washington State Constitution is a potentially difficult obstacle to overcome.

Although programs like PACE and Utility Bill Financing have had some success in other states,C. Glen Anderson, Financing Renewable Energy and Energy Efficiency, 17 Legisbrief 31(Nat'l Conference of State Legislatures, D.C.) Aug.-Sept. 2009. implementation may not be so easy in Washington. Article VIII of the State Constitution, for one, prohibits the loaning of credit by the state or local government to any private entity. The concern in the 19th century, when the constitutional convention was held, centered on the potential for state money, primarily public credit used to build railroad projects, to be lost when the projects ultimately failed.Quentin Shipley Smith, The Journal of the Washington State Constitutional Convention 1889 667-69 (Seattle Book Publishing Company, 1962). As a result, the Constitution reflects the attitude that public funds should not generally be available for the financing of private projects.

The State Constitution generally prohibits the gift or loan of public money by state or local governments, specifically stating in Section 5, "the credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation."Wash. Const. art. VIII, § 5. This concept is reiterated in Section 7 when it is applied to local governments:

No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.Wash. Const. art. VIII, § 7.

Taken together, Sections 5 and 7 form a general prohibition on the loaning of public funds to private entities and pose a substantial impediment to any program attempting to use public funds to finance energy efficiency retrofits. As a result, an innovative program like PACE might run afoul of the Washington Constitution because it utilizes money borrowed by the state or local government to cover costs of retrofits which homeowners pay back, over time, on their property tax bill.

Because the constitutionality of a PACE or Utility Bill Financing program turns on the question of whether municipal financing of retrofit projects constitutes a gift, the issue has been analyzed repeatedly in Washington. Initial disagreement among attorneys eventually prompted prosecutor to request clarification from the Office of the Attorney General of Washington.2006 Op. Atty Gen. Wash. No. 12 (2006). In its 2006 opinion, the Office of the Attorney General addressed the question of whether public financing programs similar to PACE violate the constitutional prohibition on gifts of public funds or lending of credit.Id. at 6. In the opinion, the Office of the Attorney General concluded that the giving or loaning of public money was constitutional only if it furthered a fundamental government interest.Id. at 1. The opinion advocated the application of the two-part test articulated by the State Supreme Court in Citizens for Clean Air v. City of Spokane,Citizens for Clean Air v. City of Spokane, 114 Wn.2d 20, 39, 785 P.2d 447 (1990) (holding "If the government expends funds to carry out a fundamental governmental purpose, no unconstitutional gift occurs. If the expenditures are pursuant to the government's proprietary authority, the court focuses on consideration and donative intent to determine if a gift has occurred"). asking first if the loan or gift funds a governmental purpose. If the funds are used to finance a government purpose, the court then looks at the nature of the purpose in conjunction with the consideration and donative intent to determine whether the expenditure violates Article VIII.Id. at 39-41.

As applied to energy efficiency financing, the opinion did not clearly settle the debate over the constitutionality of programs like PACE and Utility Bill Financing. As a result, the presumption against publicly funded projects, as articulated in Sections 5 and 7 of Article VIII, is still a major concern to proponents of retrofit programs.

Fortunately, however, an exception to the general prohibition articulated in Section 5 and 7 can be found in Article VIII, Section 10 of the State Constitution. Specifically, Section 10 authorizes:

any county, city, town, quasi municipal corporation, municipal corporation, or political subdivision of the state which is engaged in the sale or distribution of water, energy, or stormwater or sewer services may, as authorized by the legislature, use public moneys or credit derived from operating revenues from the sale of water, energy, or stormwater or sewer services to assist the owners of structures or equipment in financing the acquisition and installation of materials and equipment for the conservation or more efficient use of water, energy, or stormwater or sewer services in such structures or equipment. Except as provided in section 7 of this Article, an appropriate charge back shall be made for such extension of public moneys or credit and the same shall be a lien against the structure benefited or a security interest in the equipment benefited. [...]Wash. Const. art. VIII, § 10.

The existing exception contained in Section 10 allows cities like Seattle to move forward with energy efficiency financing. Because Seattle owns Seattle City Light, a public utilities provider, the City may use public money to finance housing retrofits aimed at conserving energy. The relationship between the City and Seattle City Light is not universal, however, as many municipal governments do not own and operate a utilities provider. This creates a clear problem as Section 10 does not extend financing capabilities to such municipal governments.

One potential method of remedying the problem caused by Sections 5 and 7 of Article VIII is through legislative action. In 2010, House Bill 2853 (HB 2853) was introduced to the Washington State Legislature.H.R. Res. 2853, 61st Leg., at 6-7 (Wash. 2010). This bill proposed the creation of a financing mechanism that would enable all local governments to expand and improve existing energy efficiency conservation and loan programs.Id. at 7. Specifically, it proposed to give a municipality the ability to provide energy conservation services in one of two ways.Kara Durbin, Technology Energy & Communications Committee Bill Analysis, H.R. Res. 2853, 61st Leg., at 6-7 (Wash. 2010). First, conservation service could be administered through the creation of an independent energy conservation services utility. This option would cover municipalities that do not already own a utilities provider. The second option would cover municipalities like Seattle, who could administer a conservation program through an existing electric, water, wastewater, solid waste, heating, or other utility system already operated by the municipality. Though HB 2853 has not yet passed out of committee, its constitutional posture highlights some interesting issues.

Constitutionality of HB 2853

The controversial aspect of HB 2853 is the bill's extension of financing capabilities to municipalities that do not currently operate a utilities provider. While cities like Seattle are already able to provide public financing when such financing is applied through city-owned utilities providers, it can be argued that Section 10 of Article VIII does not permit the establishment of new "energy conservation services utility" for the sole purpose of administering publicly-funded retrofit programs. A narrow reading of the exception articulated in Section 10 suggests that the utility providing the energy to the consumer must be publicly owned before public funds can be used to implement conservation projects involving the utility provider. Thus, the portion of HB 2853 that extends financing capabilities to municipalities who do not operate their own utilities provider potentially runs afoul of Article VIII's general prohibition on public loans to private entities.


Regardless of the fate of HB 2853, Seattle has the ability and legal authority to proceed with energy efficiency retrofits in its efforts to reduce energy consumption from the building sector. While both Utility Bill Financing and PACE programs offer effective repayment mechanisms, it appears that PACE programs are ill-suited for implementation in the current economic climate. Further, Seattle's ability to avoid WUTC complications as a result of Seattle's ownership of Seattle City Light makes Utility Bill Financing an especially attractive option.

In addition to reaping the benefits of energy conservation locally, Seattle's implementation of an Utility Bill Financing program for energy retrofits would likely help make the case for state-wide changes. In particular, success of such a program in Seattle may help solve the problem created by the public funding prohibition contained in the State Constitution.

The best solution to the constitutional problem is to amend Washington's Constitution to explicitly allow for state credit to be used for financing renewable energy and energy efficiency, especially for programs that make it easy for homeowners to borrow money and easy for them to pay it back. Amendments to the State Constitution are not infrequent, indeed Washington State voters have successfully voted to amend their Constitution 102 times since 1889.Melissa Fung, Washington State Constitution, Marian Gould Gallagher Law Library, http://lib.law.washington.edu/ref/waconst.html#1878. Success of Seattle's implementation of a publicly financed energy retrofit program would certainly aid the cause. Further, analyses of the economic impacts of PACE-like programs consistently show huge economic potential. Voters would ideally see the advantages of using the state's ability to issue bonds to achieve significant energy savings, reduce climate changing emissions, and create jobs.

In terms of Constitutional amendments to improve the ability of local governments to facilitate energy conservation, Oregon has provided a good model for Washington to follow. Faced with Constitutional provisions similar to Washington's Article VIII prohibition on loaning public funds, Oregon created an exception which allows for the creation of "a fund to be known as the Small Scale Local Energy Project Loan Fund. The fund shall be used to provide financing for the development of small scale local energy projects."OR. Const. art 11-J, § 2. This constitutional amendment has allowed Oregon greater flexibility in implementing energy conservation programs, and has helped elevate the state to a position as a leader in energy conservation.

Seattle now has the opportunity to implement innovative energy conservation programs, and in doing so, Seattle may help drive Washington towards a constitutional amendment that would result in state-wide energy savings. As it has been in the past, Seattle should be a leader in energy conservation, and the introduction of a Utility Bill Financing program is an attractive option for Seattle to continue its trend of innovative conservation techniques.

Published in Latest Articles

   I. INTRODUCTION Phrase coined by Cleo Paskal, Associate Fellow at Chatham House (the Royal Institute of International Affairs). Cleo Paskal, Global Warring: How Environmental, Economic, and Political Crises Will Redraw the World Map (Palgrave Macmillan 2010). Susan Solomon et al., Irreversible Climate Change Due to Carbon Dioxide Emissions, 106 Proc. of the Nat'l Acad. of Sci. of the U.S. 1704 (Feb. 10, 2009). See also Joe Romm, Climate Progress Blog, Sept. 6, 2007, http://climateprogress.org/2007/09/06/australia-faces-the-permanent-dry-as-do-we/.

A. Our Heat Hypothesis

Heat is a more ubiquitous indicator of the problems facing humanity in a warmer world than rising sea levels and the impending climate refugee crisis. Adaptation policies that respond to the threats from heat should promote human security as the best means for addressing climate vulnerabilities that threaten human rights and global stability.

The climate refugee crisis has captured global attention for good reason. The citizens of island nations such as the Maldives, Tuvalu, and Kiribati are deemed to become some of the world's first climate refugees as their lands—in some places just 1.5 meters above sea level—slowly become engulfed by rising seas. Facing existential threat, the fate of small-island states is apparently and despicably debatable as the world's most wealthy economies refuse to commit to legally binding greenhouse gas emissions reductions. Leaders of small-island nations have worked tirelessly to shift the climate policy debate away from technical market fixes toward the human impacts of climate change as rising seas threaten their very survival.

Thus, small island states have come to symbolize climate justice for the media, lawmakers, and activists. However, the narrow focus by media, law and policy makers, and organizations such as our own on island nations as the only illustration of climate justice is dangerously simplistic. Like the tragic image of a polar bear precariously balancing on the only tiny iceberg in sight, the heavy focus on sea level rise obscures other physical and societal changes that provide a more complete understanding of climate impacts. The popular focus on climate refugees ignores 1) the pervasive role of heat as well as non-climate threats in creating rising instability and global migration over time, 2) the links between those who leave and those who stay, and 3) global hot spots for climate justice—places where complex layers of human, social, and political conflict complicate the causality of climate change in threatening human security and well-being.Renate Schubert et al., Climate Change as a Security Risk, German Advisory Council on Global Change, May 2007, at 4, http://www.wbgu.de/wbgu_jg2007_engl.pdf. (See fig. 1).

global-warring-figure1Figure 1. Global hot spots, shaded, should receive greater attention due to the potential security risks triggered by overlapping climate impacts.Id.

This essay will attempt to correct the oversimplification of climate justice as a crisis culminating in waves of climate refugees. Instead, we focus on how heat increases vulnerability of cultures, institutions, lifestyles, occupations, human rights, and community viability due to both rising global average temperatures and the resulting destabilizing societal consequences of inequity in a warmer world. It will illuminate the ways in which heat is the biggest climate-driven threat to global human security, particularly in non-island regions and states where social stability and improved development hold tremendous geopolitical importance. The essay will then discuss ways in which current legal and political responses are inadequately prepared to handle heat vulnerability. We propose that human security should become a central factor in new institutions being conceived around climate-induced social and political issues, ranging from crop failure to, in a worst-case scenario, voluntary or forced climate-induced displacement.

B. Why a Focus on Heat Is Useful for Framing Human Needs in a Warmer World
For now, these hot days, is the mad blood stirring.William Shakespeare, Romeo and Juliet, act 3, sc. 1 (Wordsworth Editions Ltd 1996) (1596).
~William Shakespeare

Approaches to climate adaptation too often neglect slow-onset climatic changes such as heat stress,Graeme Hugo, Climate Change-Induced Mobility and the Existing Migration Regime in Asia and the Pacific at 11, in Climate Change and Displacement: Multidisciplinary Perspectives 9, 11 (Jane McAdam ed., 2010). while more dramatic events such as disappearing islands and floods of migrating "climate change refugees"There is no universally agreed upon definition of a "climate refugee." The definition we use is that a "climate change refugee" is "an individual who is forced to flee his or her home and to relocate temporarily or permanently across a national boundary as the result of sudden or gradual environmental disruption that is consistent with climate change and to which humans more likely than not contributed." See Bonnie Docherty & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees, 33 Harv. Envtl. L. Rev. 349, 361 (2009). The 1951 Refugee Convention defines a refugee as someone with a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." See Convention Relating to the Status of Refugees, opened for signature July 28, 1951, 189 U.N.T.S. 150, art. 1(A)(2). receive exaggerated levels of attention. This misplaced attention is significant for several reasons. First, there is very little empirical evidence suggesting that climate change has caused migration.Stephen Castles, Afterword: What now? Climate-Induced Displacement after Copenhagen, in Climate Change and Displacement: Multidisciplinary Perspectives 239, 244 (Jane McAdam ed., 2010). Second, more people will be affected by heat than forced migration from Pacific island nations. For example, sixty-eight percent of people living in the Pacific islands live in Papua New Guinea, but most of Papua New Guinea's population lives inland.It must also be noted, however, that plans exist to voluntarily resettle most of the Carteret Islands' population of 3,300. See Ursula Rakova, How-to Guide for Environmental Refugees, Our World 2.0 United Nations University Blog (June 16, 2009), http://ourworld.unu.edu/en/how-to-guide-for-environmental-refugees/. Thus, impacts such as temperature changes and shifts in precipitation patterns will be more important for adaptation than sea level rise alone.Castles, supra note 8, at 244 (citing Richard Bedford, Director of the Population Studies Centre of the University of Waikato, New Zealand).

Despite the very real impacts of climate change on peoples forced to migrate, heat is a chronic, undervalued threat to human communities everywhere. A recent study concluded that over the next twenty to fifty years, warmer temperatures will cause drier conditions and persistent droughts in many highly populated regions around the world.Aiguo Dai, Drought Under Global Warming: A Review, Wiley Interdisciplinary Reviews: Climate Change (advanced review), available at http://onlinelibrary.wiley.com/doi/10.1002/wcc.81/pdf. Dr. Aiguo Dai, who conducted the study, spoke of the significance of the results: "If the projections in this study come even close to being realized, the consequences for society worldwide will be enormous."Peter Applebome, Ignoring the Planet Won't Fix It, N.Y. Times, Oct. 27, 2010 (quoting Aiguo Dai), available at http://www.nytimes.com/2010/10/28/nyregion/28towns.html. What are these consequences for society? NASA scientist James Hansen has warned that international efforts to cap warming to under two degrees Celsius may not be ambitious enough to avoid dangerous tipping points.See James Hansen et al., Target Atmospheric CO(2): Where Should Humanity Aim?, 2 Open Atmospheric Sci. J. 217, 217-18, 226 (2008). James Lovelock, well-known for his Gaia hypothesis,The Gaia Hypothesis imagines the planet as a self-regulating life-system. See James Lovelock, Gaia: A New Look at Life on Earth (Oxford University Press 2000). warns of the near-extinction of the human species. Lovelock paints a vivid picture of Hansen's danger scenario:

[I]n the hot arid world survivors gather for the journey to the new Arctic centers of civilization; I see them in the desert as the dawn breaks and the sun throws its piercing gaze across the horizon at the camp. The cool fresh night air lingers for a while and then, like smoke, dissipates as the heat takes charge. Their camel wakes, blinks and slowly rises on her haunches. The few remaining members of the tribe mount. She belches, and sets off on the long unbearably hot journey to the next oasis.James Garvey, The Ethics of Climate Change: Right and Wrong in a Warming World 30 (Continuum International Publishing Group 2008) (quoting James Lovelock, The Revenge of Gaia (Penguin Books 2006)).

In our work, we often say that climate change creates winners and losers. For example, high altitude climates are predicted to be climate "winners" for many reasons, a major one being that agricultural productivity is expected to increase in northern climates.William R. Cline, Global Warming and Agriculture: Impact Estimates by Country (Peterson Institute for International Economics 2007). However, a "winners versus losers" mentality is overly simplistic. Arctic communities such as the native village of Kivalina, Alaska, are tasked with finding their own funds to permanently relocate because of melting permafrost and eroding coastal shorelines due to anthropogenic climate change.See Native Village of Kivalina v. Exxon Mobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009). Lovelock's unforgiving portrayal of the "winner"—a barren refugee camp in the Arctic desert—is important because it does not overlook the complexities of climate change issues. Admittedly, it is also quite bleak.

Lovelock's end myth for human civilization may seem sensationalized and a figment of pure science fiction. But for those who doubt its possibility, it is worth noting that current levels of atmospheric carbon dioxide concentrations almost identically mimic the atmospheric concentrations during the Pliocene period, an era three million years ago when the North Pole was ice-free and temperatures in the Arctic were nearly three degrees Celsius warmer.Mark Lynas, Six Degrees: Our Future on a Hotter Planet National Geographic Society 133 (2008) (citing A. Haywood & P. Valdes, Modeling Pliocene Warmth: Contribution of Atmosphere, Oceans and Cryosphere, Earth and Planetary Science Letters 218, 363–77 (2004)). Three degrees Celsius is the approximate global average temperature rise predicted for the year 2100 by the Intergovernmental Panel on Climate Change (IPCC)R.K. Pachauri & A. Reisinger, Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, available at http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf.—the most rigorously peer-reviewed scientific body in history.Stacy Feldman, Climate Scientists Defend IPCC Peer Review as Most Rigorous in History, Solve Climate Blog, Feb. 26, 2010, http://solveclimatenews.com/news/20100226/climate-scientists-defend-ipcc-peer-review-most-rigorous-history. Although the Pliocene may not be a perfect analogue for the future, at least it is a window through which we can view a possibility.

Lovelock's vision of the future certainly lacks the optimism and political salience required to cater to an American electorate stacked with shortsighted leaders and misguided patriots. But it teaches us that a "winners versus losers" take on humanity's future is an overly simplistic way of thinking about the impacts of climate change. A camel stalked by Arctic heat complicates the notion of what it is like to "win" in a warmer world. It is Lovelock's questioning of what it means to win at this "global warring" wherein the value of his vision lies. A warmer world is likely to an incredibly inhospitable place for much of humanity, and so we must find a way to think and talk about climate change that acknowledges the depth of the problem and its implications for human civilization. To further illustrate Lovelock's vision, we will now take a closer look at the implications and insecurities of a warmer world.


To help us examine the human impacts of climate change, we have developed a five-part framework for climate justice comprised of 1) health, 2) food and water, 3) security, 4) equity, and 5) justice. We think it is important that this framework not only hold up as a distinct set of categories, but also in the aggregate. Although each section of the framework can stand alone as its own category of impacts, many of the themes of climate justice overlap and are cross cutting. As a potential model for future institutions or agreements addressing climate justice, our framework aims to integrate solutions across disciplines and bridge traditionally separate issue areas. Heat impacts are just one set of climate issues that could be viewed through the lens of this framework. As discussed above, it is likely that the impacts of heat will be particularly devastating and pervasive.

1. Health

First, the warmer world is likely to be an unhealthy world. According to the U.S. Centers for Disease Control, extreme heat events kill more people annually than hurricanes, lightning, tornados, floods, earthquakes, and all other natural disasters combined.Centers for Disease Control and Prevention Extreme Heat, http://www.bt.cdc.gov/disasters/extremeheat/ (last visited Nov. 22, 2010). And that is before figuring in a hotter climate. The IPCC reports that, "Cities that currently experience heat waves are expected to be further challenged by an increased number, intensity and duration of heat waves during the course of the century."IPCC, Climate Change 2007: Impacts, Adaptation and Vulnerability, Contribution of Working Group II to the Fourth Assessment Report of the IPCC (2007), available at http://www.ipcc.ch/ipccreports/ar4-wg2.htm. Elderly, low income, and socially isolated individuals are amongst the most vulnerable to heat waves, particularly if they live in cities, where the urban heat island effect can add between two and twenty-two degrees Fahrenheit to soaring temperatures.U.S. Environmental Protection Agency, Reducing Urban Heat Islands: Compendium of Strategies (October 2008), available at http://www.epa.gov/heatisld/resources/compendium.htm. This can be especially dangerous in places like northern Europe where people are more prepared to deal with extreme cold than extreme heat. It is estimated that over 50,000 people died (2000 per day in August) during the European Heat Wave of 2003, from temperatures just 3.6 degrees Celsius above normal.  Centers for Disease Control and Prevention Extreme Heat, http://www.bt.cdc.gov/disasters/extremeheat/ (last visited Nov. 22, 2010).

2. Food and Water

Coupled with heat-related dangers to public health, the warmer world is likely to be a hungry world. Heat can be devastating to crops, and in many places, climate change is already reducing agricultural productivity. A recent newspaper headline, ripped from the front page of the San Francisco Chronicle's business section, reads "World's Wheat Crop Stressed."Charles J. Hanley, World's Wheat Crop Stressed, S.F. Chron., Nov. 14, 2010, at D1. See also Andrew E. Kramer, Russia, Crippled by Drought, Bans Grain Exports, N.Y. Times, Aug. 5, 2010, available at http://www.nytimes.com/2010/08/06/world/europe/06russia.html. According to the article, "Yields aren't keeping up with a world growing hungrier. Crops are stunted in a world grown warmer. A devastating fungus, a wheat 'rust,' is spreading out of Africa, a grave threat to the food plant that covers more of the planet's surface than any other."Id. The article continues, "In the face of leapfrogging prices, stagnating yields and shifting climate zones, wheat cannot be counted on to fill humankind's stomach in the future as it has since at least 7000 BC."Id. The article is right to call attention to the multitude of social and scientific factors that combine to create food insecurity.

One such factor that will compound all of this for much of Africa will be desertification. It is estimated that by 2050, there could be less than ninety reliable crop-growing days per year in parts of sub-Saharan Africa.P.G. Jones & P.K. Thornton, Croppers to Livestock Keepers: Livelihood Transitions to 2050 in Africa Due to Climate Change, 12 Envtl. Sci. Pol'y 427, 448 (2009), available at http://www.gecafs.org/documents/PP11Jones.pdf. (See Fig. 2).

global-warring-figure2Figure 2. This figure displays how climate change is predicted to impact the world's food supply by 2080. Cline, supra note 16.

The warmer world will lead to reduced yields of many staple grains: wheat, maize, rice, and soybeans. A rule of thumb is that for every one degree Celsius increase in temperature, cereal grain crop yields will decline by about 10 percent.David Battisti and Rosamond Naylor, Historical Warnings of Future Food Insecurity with Unprecedented Seasonal Heat, 323 Science 240, Jan. 9, 2009. Importantly, this decline is attributable to temperature increases only; scientists did not factor in any changes in precipitation, pathogen responses, or other possible impacts on food production in their study. In hotter weather and with longer growing seasons, plants may mature faster, but overall yield is reduced.Id. In addition, current research reveals that the rising temperatures associated with climate change could significantly reduce the protein content of many of the major grains that people depend on for survival.Daniel R. Taub, Brian Miller & Holly Allen, Effects of Elevated CO2 on the Protein Concentration of Food Crops: a Meta-analysis, 14 Global Change Biology 565 (Mar. 2008), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1365-2486.2007.01511.x/full. As Figure 2 indicates, some regions may benefit from climate change's hotter temperatures, but much of the Global South will see reduced yields of crops that are already in scarce supply. And, according to the map, Russia's crops were supposed to benefit from warmer weather.

The warmer world will also be a thirstier world. And there are already a lot of thirsty people. Take water scarcity, in India, for example, where the magnitude of drying far exceeds the capacity of afterthought or charity to provide an adequate response as people kill each other with swords in the slums of Bhopal over access to limited freshwater. India's 2009 record drought and shifting monsoon caused "the driest June for 83 years . . . exacerbating the effects of a widespread drought and setting neighbour against neighbour in a desperate fight for survival."Gethin Chamberlain, India Prays for Rain as Water Wars Break Out, The Observer, July 12, 2009, available at http://www.guardian.co.uk/world/2009/jul/12/india-water-supply-bhopal. One hundred thousand people in Bhopal already rely entirely on the daily delivery of water from water tankers to meet their survival needs.Id.

The UN has warned for many years that water shortages will become one of the most pressing problems on the planet over the coming decades, with one report estimating that four billion people will be affected by 2050. What is happening in India, which has too many people in places where there is not enough water, is a foretaste of what is to come.Id.

Will we be delivering water to four billion people via tanker trucks in India? How about in the United States? The recent drought study by Dr. Dai mentioned earlier poses equal challenges for the United States, particularly for the Southwest.See Dai, supra note 11. Although the United States has avoided significant drying over the past fifty years due to natural climate variations, much of the United States will experience severe drying within the next few decades.Id. Imminent drying could cause water levels in the Colorado River and Lake Mead to drop, further endangering the water supply for the Southwest.Mike Orcutt, A Cut-and-Dry Forecast: U.S. Southwest's Dry Spell May Become Long-Lasting and Intensify as Climate Change Takes Hold, Scientific American, Oct. 29, 2010, available at http://www.scientificamerican.com/article.cfm?id=forecast-us-southwest-drought. Dr. Dai also predicts droughts of devastating severity by 2030 in southern Europe, Southeast Asia, Brazil, Chile, Australia, and a majority of Africa.See Dai, supra note 11.

3. Security

The warmer world is likely to be a less secure world. Looking beyond the public health impacts of heat waves and the phenomenon of reduced agricultural productivity and water scarcity, the warmer world is going to be a more violent place. In fact, there is a phrase in psychology, "the heat hypothesis," which is used to describe this very phenomenon.Craig A. Anderson, Heat and Violence, 10 Current Directions in Psychological Science 33 (2001). Studies of this relationship between human behavior and weather patterns date back to the time of Cicero (106–32 BC), although the topic was first empirically studied in the 1700s.Id. Research by criminal psychologist Ehor Boyanowsky, a professor at Simon Fraser University, shows that "elevated ambient temperatures lead to increased brain temperatures that result in cognitive dysfunction, emotional stress, and aggression," as well as increases in violent crime.Ker Than, Global Warming Making People More Aggressive?, Nat'l Geographic News, Mar. 24, 2010, http://news.nationalgeographic.com/news/2010/03/100324-global-warming-violence-aggression/.

According to another study by Iowa State psychologist Craig Anderson and sociologist Matthew DeLisi, "higher temperatures can increase aggression in myriad ways."Id. See also C.A. Anderson & M. DeLisi, Implications of Global Climate Change for Violence in Developed and Developing Countries, in Social Conflict and Aggression (J. Forgas, A. Kruglanski & K. Williams eds., forthcoming). Based on their analysis of violent crime data for the period between 1950 and 2008, the researchers estimate that an increase of 4.4 degrees Celsius in the United States would result in more than 100,000 additional violent crimes nationwide per year.Than, supra note 42. But, the researchers caution, regular heat-fueled aggression is only one part of the problem. Migration, when it does take place, is likely to lead to even more violent behavior that can take on various forms of civil unrest. As DeLisi notes, "displacement and migration of people across borders can potentially lead to a lot more human conflict."Id. He points out the example of a post-Hurricane Katrina spike in Houston homicides, which has been linked to spars between Houston gangs and those gangs displaced from New Orleans.Id. The Katrina example may seem unique, but there is actually potential for increased violence across the world as shown in Figure 1. The map showcases how climate-induced environmental stresses will overlay one another and create or exacerbate political instability resulting in "climate change hot spots." The areas that face water insecurity also face food insecurity and these factors combine and can lead to the forced migration of climate refugees.

Without adequate access to food and water, and with more violence and aggression, it is not hard to see how many people in the warmer world could be less secure. How will we cope with a climate-dominated future? What kinds of needs will we voice? As the 1994 United Nations Development Programme's (UNDP) Human Development Report (HDR) describes:

For most people, a feeling of insecurity arises more from worries about daily life than from the dread of a cataclysmic world event. Will they and their families have enough to eat? Will they lose their jobs? Will their streets and neighborhoods be safe from crime? Will they be tortured by a repressive state? Will they become a victim of violence because of their gender? Will their religion or ethnic origin target them for persecution?United Nations Dev. Programme, Human Development Report: New Dimensions of Human Security 1994, at 22 (1994), available at http://hdr.undp.org/en/reports/global/hdr1994/chapters/ [hereinafter 1994 HDR].

Through its 1994 HDR, the UNDP promoted a new concept of security in the post-Cold War era, human security, as a more holistic alternative to the traditional twentieth century reliance on heavy militarization and notions of security centered on nation-states.See generally Shannon Beebe & Mary Kaldor, The Ultimate Weapon is No Weapon (PublicAffairs 2010). Security in a warmer world must take on new meanings, and many traditional security institutions are now beginning to reexamine what this new security paradigm could look like.

Every year, Foreign Policy magazine collaborates with The Fund for Peace to create an index that evaluates the security of the world's countries. In the summer of 2009, the index featured a special article devoted to the destabilizing effects of climate change. The article concludes, "[a]s global warming churns the world's weather, it's becoming increasingly clear that it's time to start thinking about the long term. In doing so, the West may need to adopt an even broader definition of what it takes to protect itself from danger."Stephan Faris, The Last Straw, Foreign Pol'y, June 22, 2009. Challenging the common discourse about global security threats related to Pakistan, the article suggests that "[w]hen it comes to the stability of one of the world's most volatile regions, it's the fate of the Himalayan glaciers that should be keeping us awake at night."Id. Perhaps, the article suggests, climate change is on par with terrorism as a threat to the United States and the global world order. According to a recent New York Times article, a new type of national intelligence work is being founded on the assumption "that the 21st century will be shaped not just by competitive economic growth, but also by potentially disruptive scarcities—depletion of minerals; desertification of land; pollution or over-use of water; weather changes that kill fish and farms."Thom Shanker, Why We Might Fight, 2011 Edition, N.Y. Times, Dec. 12, 2010, available at http://www.nytimes.com/interactive/2010/12/12/weekinreview/12shanker.html?hp.

4. Equity

The warmer world is likely to be a more unequal world. The effects of climate impacts to health, food and water, and security will not be felt equally across the human race. One way that inequality could manifest is in the further marginalization of women. According to Heather Goldsworthy Davila, a research associate at the University of California, Irvine, Center for Unconventional Security Affairs, "gender, race, and class are very powerful intervening variables when considering human security," and "in situations of instability and insecurity, women are comparatively less well-off compared to men in their communities owing to their disadvantageous social status and the restrictions of their gender roles."Heather Goldsworthy, Women, Global Environmental Change, and Human Security, Global Environmental Change and Human Security 218-19 (Matthew et al. eds. 2010). Indeed, studies of the 2003 European heat wave suggest that the excess mortality rate was 75 percent higher for women than for men.Bernadette Valley, Heat Waves, Water and Health, Women and Climate Change Blog, Jul. 10, 2010, http://womenandclimatechange.blogspot.com/2010/07/heat-waves-water-and-health.html. And inequality between men and women is only one type of inequality that we will likely see in a warmer world. North versus south, rich versus poor, and born versus future generations will also be implicated. In fact, University of Chicago geophysical scientist David Archer's research shows that it will take several centuries for the planet's oceans to absorb roughly three quarters of anthropogenic carbon dioxide.David Archer, The Long Thaw: How Humans Are Changing the Next 100,000 Years of Earth's Climate 110 (Princeton University Press 2008). The remaining carbon will stay in the atmosphere for thousands of years, with ten percent remaining in the atmosphere for 100,000 years.Id. The people of the future will carry a huge burden as the world warms from destabilizing amounts of greenhouse gas emissions in the atmosphere.

5. Justice

A warmer world will likely be a less just world. Human rights law will be marginalized in an era of global climate change. A case decided by South Africa's Constitutional Court on October 8, 2009 is illustrative. Mazibuko and Others v. City of Johannesburg and Others was the first test case on South Africa's constitutional right to water. Mazibuko and Others v. City of Johannesburg and Others 2010 (3) BCLR 239 (CC) (S. Afr.). The plaintiffs in the case were five impoverished residents of Phiri in Soweto, one of the poorest black townships that developed in Johannesburg during apartheid.Id. at 16. By shutting off their water supply, the plaintiffs contended that the city's water company was denying them one of their basic human rights.Id. at 17. Although lower courts found the plaintiff's arguments compelling, and thereby validated that economic and social rights should have a minimum core content, South Africa's high court rejected the minimum core content argument and instead adopted the commonly used standard for human rights—reasonableness in light of the theory of progressive realization.Id. at 18-20. This case illustrates an important concern about the feasibility of using human rights law to address climate harms. While principles of human rights have seen wide expansion since the Second World War, perhaps best illustrated by the United Nation's adoption of the Universal Declaration of Human Rights in 1948, climate change is likely to create a prolonged period of retraction as the conditions for the realization of these rights regress. Without a strong emphasis on building capacity for rule of law protections, as well as the realization of economic and social rights for billions of people, the concept of an ever-expanding ideal of democratic justice is likely to be just a fantasy.

The vivid picture of a warmer world is a world that is more dangerous, more violent, hungrier and thirstier, less secure, more unequal, and less just. The law must adapt. Our climate justice framework offers a useful starting place.


The above sampling of the human impacts of a warmer world is merely the tip of a much larger iceberg. As influential as climate impacts are alone, it is the global response to these impacts that will inevitably shape our collective future. The story, in the end, will be less about heat, rising seas, or droughts. What we do—or do not do—as a global community to prepare for the impacts from climate change will ultimately shape the course of human history. We, particularly those of us who live in wealthy countries such as the United States, can choose adaptation policies that either secure global stability or plunge it further into chaos.In the United States, we narrate our future without regard for the future that we are actively creating. See also Applebome, supra, note 12 (noting that "There is plenty of concern about the economic future we're leaving for our children. As for urgency about the planet we're leaving them, that can slide until a more convenient time.").

Consider, for example, the political inaction on climate change in the United States. Despite Dr. Dai's "portrait of worsening drought,"Press Release, University Corporation for Atmospheric Research, Climate Change: Drought may threaten much of globe within decades (Oct. 19, 2010), available at http://www2.ucar.edu/news/2904/climate-change-drought-may-threaten-much-globe-within-decades. his report "didn't register on any political radar screens, amid Kentucky foot stomps, dead wrestlers, $2 billion in campaign spending and the pitched battles for control of Congress."Applebome, supra note 12. By ignoring reports of severely devastating temperatures and drought predictions, decision makers ignore the vivid picture painted across the full spectrum of our climate justice framework. The United States cannot afford to be optimistic about its future without redirecting its public policies and international priorities toward a more secure world, and this includes embracing adaptation policies that prioritize human security. Until the United States takes climate change seriously, it cannot claim to take its security seriously.

Two related issues frame U.S. political debates on climate change. First, both sides of the U.S. political spectrum struggle to grasp the full scope of the climate justice problem. The political Right simply denies the existence of anthropogenic climate change, while the political Left adopts a "green jobs" and "clean tech" frame for promoting climate policy. The green jobs rhetoric aims to revitalize an economy emerging out of recession while also addressing the climate crisis. Second, the dedication to capitalism at any cost is causing political leaders to lose sight of the importance of addressing climate change for global security. Although investments in clean tech and green jobs are critical in achieving U.S. energy independence, the scope of the climate crisis requires sensible solutions that emerge outside the current growth-centric economic paradigm—the very worldview that is responsible for much of the problem. James Gustave Speth, a pioneer in environmental law, blames growth-driven capitalism for much of the world's degradation, including the climate crisis:

An unquestioning society-wide commitment to economic growth at any cost; powerful corporate interests whose overriding objective is to grow by generating profit; markets that systematically fail to recognize environmental costs unless corrected by government; government that is subservient to corporate interests and the growth imperative; rampant consumerism spurred by sophisticated advertising and marketing; economic activity now so large in scale that its impacts alter the fundamental biophysical operations of the planet—all combine to deliver an ever-growing world economy that is undermining the ability of the planet to sustain life.James Gustave Speth, A New American Environmentalism and the New Economy, Tenth Annual John H. Chafee Memorial Lecture on Science and the Environment, National Council for Science and the Environment (Wash. D.C., 2010), available at http://ncseon-line.org/CMS400Example/uploadedFiles/01_NEW_SITE/4_Conference/2010_Green_Economy/Chafee%20Report%202010-Speth.pdf.

Speth's scathing critique of the market's impact on the environment illustrates the difficulty of addressing an issue like climate change within the current economic and institutional confines. Our collective decisions seem to presuppose a nonsensical distinction between the environment and the economy,See Applebome, supra note 12. and few seem to openly question that the market is the appropriate tool for addressing the climate crisis.Michael Shellenberger and Todd Norhaus, Climate action plan: Innovate first, regulate later, Grist, (Nov. 16, 2010), http://www.grist.org/article/2010-11-16-climate-action-plan-innovate-first-regulate-later.

The news media has done far too little to draw attention to this contradiction or the fact the climate change is far more than an environmental concern. Journalist Eric Pooley, recipient of the 1996 Gerald Ford Prize for Excellence in Reporting while serving as Time's White House correspondent, analyzed media coverage of climate change for fifteen months and wrote a report titled, "How Much Would You Pay to Save the Planet? The American Press and the Economics of Climate Change."Eric Pooley, How Much Would You Pay to Save the Planet? The American Press and the Economics of Climate Change, Joan Shorenstein Ctr. on the Press Politics & Pub. Pol., (Discussion Paper Ser. No. D-49, 2009), available at http://www.hks.harvard.edu/presspol/publications/papers/discussion_papers/d49_pooley.pdf. Concluding that the press has badly misrepresented climate change by pigeonholing it as an environmental issue, Pooley wrote:

In general, global warming is still being shoved into the "environment" pigeonhole, along with the spotted owls and delta smelt, when it is clearly to society's detriment to think about the subject that way. It is time for editors to treat climate policy as a permanent, important beat: tracking a mobilization for the moral equivalent of war.Id. at 5.

While journalists must play a bigger role in "tracking a mobilization for the moral equivalent of war," governments must actually mobilize on adaptation in order to confront a reality that looks "strangely like war."We borrow this phrase from Derrick Jensen, who uses it to discuss the human impacts of industrial deforestation practices around the world. See Derrick Jensen & George Draffan, Strangely Like War: The Global Assault on Forests (Chelsea Green Publishing Company 2003). Admittedly, this is a much bigger, harder to imagine, and more expensive task than mitigating emissions. Yet within the growth-at-all-costs economic agenda—one that continues to incentivize a carbon-based economy while ignoring the human and security costs of such an approach—grim visions of a warmer world such as those painted by Lovelock, Hansen, and others remain marginalized.

The act of imagining a warmer world provides a legitimate opportunity to critically question whether the current political and economic orders actually serve us in building a better—and more secure—future for ourselves and for our children.


Adaptation is the process of building resilience to climate impacts. It is becoming an ever more important task as major emitters such as the United States and China fail to adopt binding emissions reduction targets.See U.N. Framework Convention on Climate Change Conference of the Parties, Copenhagen, Den., Dec. 7–19, 2009, Copenhagen Accord, Dec. 18, 2009, 4–7, U.N. Doc. FCCC/CP/2009/11/Add.1 (Mar. 30, 2010), available at http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf. Shortly after taking office, the Obama Administration created an Interagency Climate Change Task Force tasked with supplying the administration with recommended actions in support of a national climate change adaptation strategy.The White House Council on Environmental Quality, Progress Report of the Interagency Climate Change Adaptation Task Force: Recommended Actions in Support of a National Climate Change Adaptation Strategy (2010), available at http://www.whitehouse.gov/sites/default/files/microsites/ceq/Interagency-Climate-Change-Adaptation-Progress-Report.pdf. The recommendations offer specific near-term adaptation goals as well as recommendations for approaches to developing a national strategy.Id. Key policy goals include mainstreaming adaptation planning across the federal government, better integrating science into decision making, addressing key cross-cutting issues such as water and health, supporting international adaptation efforts, and building the capacity of the federal government to partner with and support adaptation at local, state, and tribal levels.Id. Although this task force is a good start, progress on adaptation is only in its initial planning phase. Despite Congress's failure to pass comprehensive climate legislation, mitigation policies to curb carbon pollution are still much more advanced than adaptation policies. Yet developing countries—"particularly those experiencing what they believe to be climate impacts now—are especially adamant that adaptation must secure equal status to mitigation."Richard Black, IPCC Aims for Clarity and Relevance in New Report, BBC News, (Oct. 15, 2010), http://www.bbc.co.uk/news/science-environment-11551943.

The 2007 IPCC report defines adaptation as "[t]he adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities."IPCC, supra note 22. In other words, adaptation is about "managing the unavoidable."See Rory Sullivan et al., Managing the Unavoidable: Investment Implications of a Changing Climate, available at http://www.uss.co.uk/Documents/Managing%20the%20Unavoidable%20-Investment%20implications%20of%20a%20changing%20climate%20Nov%202009.pdf. Often overshadowed by mitigation efforts to slow greenhouse gas emissions, adaptation gets weaker political support, fewer sound bites, and less attention from scholars and policymakers. To some, adaptation unpopularly suggests concession to a warmer world. Another reason adaptation is unpopular is because it requires unprecedented levels of cooperation and engagement. Unlike mitigation policy, the proposals for which are largely market-driven, adaptation policy necessitates a big role for governments. This is because without improved political and legal institutions to reduce poverty and inequity, environmental challenges such as climate change will continue to be a prominent factor in undermining economic and political stability. Governments, international cooperation, and the domestic rule of law must play a key role in ensuring future security and stability as we adapt to life in a warmer world.

The world needs real, not rhetorical, adaptation policies. Even if every person on the planet stopped emitting the greenhouse gases from fossil fuels today, elevated levels of carbon dioxide will linger in the atmosphere for thousands of years.{footnote}Archer, supra note 54, at 110. NOAA scientists have concluded that climate change is "largely irreversible for 1000 years"{footnote}Solomon et al., supra note 2. and predicts dire impacts for the overall climate system as a result, such as a one thousand year Dust Bowl in the American Southwest, which is predicted to be irreversibly dry desert by 2050.Richard Seager et al., Model Projections of an Imminent Transition to a More Arid Climate in Southwestern North America, 316 Science 1181 (2007). In a Nature article last year titled "Overshoot, adapt, and recover," IPCC scientists concede that because we will likely overshoot carbon emissions targets, adaptation policy deserves even more robust attention.Martin Parry et al., Overshoot, Adapt and Recover, 458 Nature 1102 (2009). John Holdren, President Obama's science advisor, explained that "[w]e basically have three choices: mitigation, adaptation[,] and suffering. We're going to do some of each. The question is what the mix is going to be. The more mitigation we do, the less adaptation will be required and the less suffering there will be."Christopher Mims, Putting the Midterm Elections in the Context of the Latest Climate Science (and Life as We Know it), Grist (Nov. 4, 2010), http://www.grist.org/article/2010-11-03-putting-the-midterm-elections-in-the-context-of-the-latest. (citing Joe Romm, "Real adaptation is as politically tough as real mitigation, but much more expensive and not as effective in reducing future misery," Climate Progress Blog (August 27, 2010)), available at http://climateprogress.org/2010/08/27/adaptation-mitigation-climate-chang/.

Unequivocally, the world is getting warmer. Significant suffering could be alleviated by spending money on adaptation that provides better access to basic human services. Funding for public health, water delivery methods, and food storage facilities will reduce the degree to which people suffer while the United States and other countries ideally formulate a robust set of adaptation policies. However, given that 1) we have collectively evaded mitigation—the cheaper option of climate change prevention,See generally Nicholas Stern, The Economics of Climate Change: the Stern Review (Cambridge University Press 2007). See also World Bank, Global Development Finance 2009: Charting a Global Recovery (June 22, 2009), available at http://go.worldbank.org/771Y6SFAT0. 2) neglected adaptation, and 3) chosen suffering by default, disaster relief and humanitarian aid are likely fallbacks. Yet humanitarian aid and voluntary charitable giving campaigns are an inadequate substitute for a comprehensive adaptation response.

Humanitarian response cannot stand in for climate adaptation policy because climate changes are becoming irreversible.Solomon et al., supra note 2. In a warmer world, drought endures; and in a state of permanent dry, drought will come again. Former United Nations Under-Secretary-General for Humanitarian Affairs Jan Egeland critiques humanitarian efforts for saving people's lives today so that they can die tomorrow.Jan Egeland, Dir., Norwegian Inst. of Int'l. Affairs, A Billion Lives: An Eyewitness Report from the Frontlines of Humanity, Address before the Carnegie Council Public Affairs (Mar. 6, 2008), available at http://www.carnegiecouncil.org/resources/transcripts/0030.html. Talking about Darfur at a 2008 Carnegie Council event, Egeland said:

Number one, it's not enough with blankets and it's not enough to keep people alive if there is no security and, now, durable political solutions. The story of Darfur, as I see it, is that we treated it as if it was a natural disaster, whereas it was manmade, from A to Z, as a war. It is exacerbated by climate change, but it was manmade, as a disaster.Id.

Views of climate change as a series of natural disasters shape incomplete policy responses. Egeland's moral approach to climate change reveals how critically important a rights-based, long-term approach is to any human security agenda that informs climate adaptation. The U.S. military is critical to this approach because climate change makes bad things worse. It threatens human well-being for a multitude of issues and on a variety of scales. Some refer to climate change as a "threat multiplier," with the propensity to create global instability and even failed states.Faris, supra note 49. In a 2007 report, the Center for Naval Analysis found that: "Unlike most conventional security threats that involve a single entity acting in specific ways and points in time, climate change has the potential to result in multiple chronic conditions, occurring globally within the same time frame."The CNA Corporation, National Security, and the Threat of Climate 6 (2007), available at http://securityandclimate.cna.org/report/National%20Security%20and%20the%20Threat%20of%20Climate%20Change.pdf. In responding to these complex threats, the U.S. Department of Defense's 2010 Quadrennial Defense Review acknowledges that "climate change will shape the operating environment, roles, and missions" of the department.U.S. Dep't of Def., Quadrennial Def. Review Report 84 (2010), available at http://www.defense.gov/QDR/QDR%20as%20of%2029JAN10%201600.pdf#page=107.

Lieutenant Colonel Shannon D. Beebe, the Senior Africa Analyst in the Office of United States Army Deputy Chief of Staff for Intelligence, has come up with a novel way of describing this new type of security. Beebe speaks about the importance of moving from a "kinetics-based" security, one that mobilizes planes and tanks, to a "conditions-based security," where the military becomes an active agent of social change by addressing creeping vulnerabilities.Hannah Marqusee, The Ultimate Weapon is No Weapon: Human Security and the New Rules of War and Peace, The New Security Beat Blog (Nov. 5, 2010), http://newsecuritybeat.blogspot.com/2010/11/ultimate-weapon-is-no-weapon-human.html. Beebe calls for a shift from an algebraic to a calculus-based model of security, which would require military intelligence to adapt and respond better to multiple combinations of different permutations of future conditions.Id. Think about this as a shift from Normandy to 9/11. Omaha Beach required a sophisticated coordination of allied support to help U.S. Army Rangers enter France by sea, set against the bunker-driven munitions fire from occupying German infantry. While the battle was extremely difficult, there was a clear enemy and a clear strategy. The U.S. War on Terror, on the other hand, requires a very different set of strategies. Enemies, primarily loose affiliations of individuals with varying agendas, are often elusive. For example, a Chicago-bound printer toner cartridge, packed with explosives and shipped by an unknown woman in Yemen via UPS, becomes a national security threat.Yemen Mail Bomb 'Could Have Detonated over U.S.', BBC News, (Nov. 10, 2010), http://www.bbc.co.uk/news/world-us-canada-11729720. Commercial airplanes have become weapons of mass destruction.

Beebe's message is that both silver bullet solutions and the Cold War "winners versus losers" mentality have become obsolete in a warmer world. Indeed, Beebe is no lone renegade in the armed forces. On October 13, 2010, Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, made the following remarks at an Energy Security Forum in Washington, D.C.:

As glaciers melt and shrink at a faster rate, water supplies have been diminishing in parts of Asia. Rising sea levels could lead to a mass migration and displacement similar to what we have seen in Pakistan's flood. And climate shifts could drastically reduce the arable land needed to feed a burgeoning population as we have seen in parts of Africa. The scarcity of and potential competition for resources like water, food and space, compounded by an influx of refugees if coastal lands are lost, does not only create a humanitarian crisis but creates conditions of hopelessness that could lead to failed states and make populations vulnerable to radicalization. These challenges highlight the systemic implications and multiple-order effects inherent in energy security and climate change.Admiral Michael Mullen, Chairman, Joint Chiefs of Staff, Address to the Energy Security Forum in Washington D.C. (Oct. 13, 2010), available at http://www.jcs.mil/speech.aspx?ID=1472.

Heat makes glaciers melt. Melting glaciers pose tremendous challenges for the leaders within the armed forces to provide the type of military intelligence that adaptation researchers and policy makers need as they crafts laws and policies that leverage the interconnections between climate change, development, creeping vulnerabilities, and geopolitical stability. Adaptation policies must become an institutionalized part of security strategies in a warmer world, and vice versa. We believe that "human security" is a powerful conceptual framework for combining climate adaptation and global security goals.


In the final analysis, human security is a child who did not die, a disease that did not spread, a job that was not cut, an ethnic tension that did not explode in violence, a dissident who was not silenced. Human security is not a concern with weapons—it is a concern with human life and dignity.1994 HDR, supra note 47, at 22.

Because of the nature of climate change, typically intensified through creeping social and ecological vulnerabilities, we embrace a shift in the security narrative that focuses on "human security"A note on semantics: We choose to adopt a human security lens for analyzing the human impacts of climate change, rather than an environmental security or climate security lens because we feel that this term is more accurate and inclusive of the basic needs of the world's most vulnerable people. As Geoffrey Dabelko noted in his foreword to a new volume on "Global Environmental Change and Human Security" published this year by MIT Press, the environmental security literature has primarily focused on the more narrow issue of natural resource depletion and its relationship to conflict thresholds. We agree with Debelko's analysis of the environmental security literature and we also believe that the term climate security fails to stand on its own as a concept that is significantly distinctive from human security. Because of the amplifying and threat-multiplying nature of climate change and its predicted impacts to human well-being, we have chosen to adopt a more widely accepted human security lens for analyzing the human impacts of climate change. See generally Global Environmental Change and Human Security (Matthew et al. eds., MIT Press 2010). rather than state-based security. According to the UNDP in its 1994 HDR, "[t]he concept of security has for too long been interpreted narrowly . . . It has been related more to nation-states than to people . . . Forgotten were the legitimate concerns of ordinary people who sought security in their daily lives."1994 HDR, supra note 47, at 22. With these concerns in mind, we have chosen to borrow a definition of human security from the Global Environmental Change and Human Security project: "Human security is achieved when and where individuals and communities have the options necessary to end, mitigate, or adapt to threats to their human, environmental and social rights, have the capacity and freedom to exercise those options, and actively participate in attaining those options."Int'l Human Dimensions Programme on Global Envtl. Change, IHDP Report No. 11, (Jun. 1999), http://www.ihdp.uni-bonn.de/html/publications/reports/report11/gehssp.htm. Thus, human security assumes a basic measure of political stability and encompasses a variety of basic human rights and entitlements, including substantive and procedural rights.

According to development scholar Des Gasper, "The concept of human security redirects attention in discussions of security, beyond the nation-state level, beyond physical violence as the only relevant threat/vector, and beyond physical harm as the only relevant damage."Des Gasper, The Idea of Human Security, in Climate Change, Ethics and Human Security 23 (O'Brien et al. eds., 2010). Gasper challenges us to think beyond violence:

The causes and knock-on effects of damage through violence are so ramifying that while violence appears convenient as a focus for data collection and subsequent model-building, the associated research and policy are forced to ramify. A narrow frame provides no self-enclosed analytical coherence. We cannot afford to ignore wider causes and effects, and to treat the latter as externalities that will be absorbed by the human and natural environments. The world contains too much interconnection, fragility, and risk of straying past tipping points.Id. at 44.

It is vital, then, that we study and understand these tipping points—climatic, political, and cultural alike. Although the climate refugee crisis may be one dominant tipping point, akin to Gasper's notion of a "convenient" problem,Id. there are many others to choose from in the climate context. The 1994 HDR outlined one set of human security indicators, which, it suggests, can combine to create a risk of more traditional nation-state breakdown: food insecurity, job and income insecurity, human rights violations, incidents of ethnic or religious conflict, rising regional inequities, and excessive military spending.See 1994 HDR, supra note 47, at 38. Importantly, the 2010 HDR, citing twentieth century Hungarian economic philosopher Karl Polanyi, notes that the role of governments will be critical to promoting human security and averting dangerous tipping points, as markets have generally been "very bad at ensuring the provision of public goods, such as security, stability, health and education."UNDP, Human Dev. Report, The Real Wealth of Nations: Pathways to Human Dev. 2010, at 5 (2010), [hereinafter 2010 HDR].

Climate change will make it even more difficult for governments to provide a measure of basic human security to their people. As the 2010 HDR notes:

Climate change may be the single factor that makes the future very different, impeding the continuing progress in human development that history would lead us to expect. While international agreements have been difficult to achieve and policy responses have been generally slow, the broad consensus is clear: climate change is happening, and it can derail human development.Id. at 102.

Whether or not climate change derails the train of human development will be a question for scientists and policymakers alike. As Geoffrey Dabelko, Director of the Woodrow Wilson Center's Environmental Change and Security Program, notes, "A very important and distinctive contribution of human security is that it securitizes (makes a priority of) what individuals themselves see as their paramount concerns, and so pluralizes the meaning of security and opens up space for alternative security practices."Geoffrey Dabelko, Global Environmental Change and Human Security, in Climate Change, Ethics and Human Security 9 (O'Brien et al eds., 2010). If we can find a way to look at predicted climate impacts through a security lens, we can create opportunities for building social and ecological adaptive capacity across and throughout climate-impacted communities.

By promoting political rights and rule of law protections, human security provides a comprehensive lens through which to conceive of, implement, and evaluate climate policy. In many ways, human security may provide a better avenue than human rights laws for protecting human rights. This is particularly true for economic, social, and cultural rights, which have been systematically marginalized and under-enforced by governments and largely ignored by mainstream human rights organizations.Kenneth Roth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 HUM. RTS. Q. 63 (2004). Like climate change itself, economic, social, and cultural rights violations are often plagued by the dilemma of attributing responsibilities and determining remedies.Id. at 68. Given the efficacy of human rights law thus far to provide for economic and social protections, relying on human rights protections in an era of global warming would be a mistake.


As already argued, heat stress is a significant threat to human security in a warmer world. To protect basic human needs in an era of global climate change, international climate adaptation policies must provide an overarching framework for decentralized human security policies that strengthen rule of law protections for the provision of basic human services. State and local governments should build capacity for protecting human security by providing access to food and water, adequate health care and education, and equal access to courts.

The idea of making a warmer world safer by strengthening domestic rule of law may not seem politically feasible. One reason is that thirst, hunger, conflict, inequity, and injustice pre-date significant climate warming. Already, these stresses overwhelm the international community and undermine global stability. Also, climate change, by adding additional stresses such as heat, further compromises existing inequities and threatens global security, particularly in the developing world where rule of law protections are the weakest. However, adaptation policy crafted solely on what might be politically feasible rather than what might be necessary to avoid the devastating human impacts of a warmer world will have significant implications for global human security. One consequence is that the ecological and social consequences of climate change may threaten democracy itself.See Ross Gelbspan, The Heat Is On 153 (Basic Books 1998).

The United Nations Framework Convention on Climate Change (UNFCCC) might provide one response to such threat. The UNFCCC is an international climate treaty dedicated to protecting global society from "dangerous anthropogenic interference with the climate system."United Nations Framework Convention on Climate Change, art. 2, May 9, 1992, 1771 U.N.T.S. 107. Yet, the UNFCCC does not explicitly protect human rights threatened by climate change. Although the international human rights discourse provides useful and important human rights standards and principles, actual human rights laws—particularly rights threatened by climate change such as the rights to foodInternational Covenant on Economic, Social and Cultural Rights, art. 11, Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976). and healthId. at art. 12.—are traditionally not enforced.

Alternatively, a human security approach to rights-based protections from climate harms might have more potential to be actionable given the geopolitical importance of security and security-based considerations. In addition, a focus on security may go farther than human rights protections to ensure the strength of the very institutions and democratic systems that are vital for overseeing and protecting human welfare and human rights. Below, we will address how laws and policies addressing human security concerns can be integrated into existing international frameworks for climate adaptation, and implemented at national and local scales.

A. International Climate Policy: The Human Rights Dilemma

Although climate change threatens justice all around the world, the plight of disappearing small-island states still anchors the debate on climate justice. The Malé Declaration is a major reason why. The Malé Declaration on the Human Dimension of Global Climate ChangeAss'n of Small Island States, Malé Declaration on the Human Dimension of Global Climate Change (2007) (alternatively referred to as the Malé Declaration), available at http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf.—an initiative of the Association of Small Island States—is primarily responsible for elevating climate justice and the broader human rights impacts of climate change to the world stage. The Malé Declaration compelled the United Nations Office of the High Commissioner for Human Rights (OHCHR) to conduct a detailed study into the effects of climate change on the full enjoyment of human rights.Office of the U.N. High Comm'r for Human Rights, Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights, U.N. Doc. A/HRC/10/61 (Jan. 15, 2009). See also Jennifer K. Barcelos et al., The Three Degrees Conference: One Year Later, 85 Wash. L. Rev. 193, 195 (May 2010), available at http://threedegreeswarmer.org/wp-content/uploads/2010/05/Introduction1.pdf. The January 2009 OHCHR Report helped promote the consideration of the human rights impacts of climate change to the vulnerable peoples of the world. However, "the work of making that justice a necessary element of our global climate response remains incomplete."Id.

Indeed, protecting the human rights of climate-impacted peoples will require untested levels of international cooperation. Judging from recent international climate negotiations, the best means for achieving cooperation among over 190 countries remains unclear. The fifteenth meeting of the Conference of the Parties (COP 15) to the UNFCCC took place in December 2009 in Copenhagen, Denmark.For information on COP 15, see Official Website of the U.N. Climate Change Conference in Copenhagen, http://unfccc.int/meetings/cop_15/items/5257.php. The major goal was to create a legally binding set of mitigation targets to set the post-Kyoto Protocol agenda. The parties to COP 15 did not achieve their goal. Instead, a small group of nations including the United States, Brazil, South Africa, India and China signed the non-binding Copenhagen Accord, of which the COP "took note" but did not formally adopt.See COP 15, supra note 69. Although the process failed to produce any legally binding mitigation targets, "the result may be more an appraisal of the UNFCCC's governance process, which requires consensus among its [194] member countries, than a commentary on the overall state of international climate policy."Barcelos et al., supra note 110. The sixteenth meeting of the COP recently concluded in Cancun, Mexico.For information on COP 16, see Official Website of the U.N. Climate Change Conference in Cancún, http://unfccc.int/2860.php. Although the parties to COP 16 had again reached a stalemate on any legally binding targets for curbing climate pollution, delegates successfully negotiated the Cancun Agreements—a package of separate agreements that reiterate key elements of the Copenhagen Accord. These agreements commit major economies to mitigation cuts, adaptation measures for vulnerable countries, and climate finance goals.Id.

The political nature of the Copenhagen and Cancun Agreements reveals that achieving consensus so far is only possible through the adoption of extra-legal agreements. Thus, the fate of the Kyoto Protocol—a legally binding agreement set to expire in 2012—has been described as a "political landmine."Robert Stavins, What Happened (and Why): An Assessment of the Cancun Agreements, Harvard Project on International Climate Agreements, Belfer Center for Science and International Affairs, Harvard Kennedy School (Dec. 13, 2010, 10:45 PM), http://belfercenter.ksg.harvard.edu/analysis/stavins/?p=876. Despite its limitations, the UNFCCC still appears to be the most appropriate existing international legal body for eventually setting global emissions targets. And while top-down global emissions mitigation policy is critical, it is not clear that the UNFCCC structure is best suited for crafting meaningful adaptation policies, which require a much less centralized and a much more place-based approach. "A more promising approach to moving forward would be to split the climate-change problem up into different pieces and address the more tractable pieces in more specialized forums."Daniel Bodansky, "The International Climate Change Regime: The Road from Copenhagen." Policy Brief, Harvard Project on International Climate Agreements, Belfer Center for Science and International Affairs, Harvard Kennedy School, (Oct. 2010), available at http://belfercenter.ksg.harvard.edu/publication/20437/international_climate_change_regime.html?breadcrumb=%2Fproject%2F56%2Fharvard_project_on_climate_agreements.

Yet, the UNFCCC still needs to play a coordinating role for adaptation. Without the UNFCCC, state governments will lack the conceptual frameworks and the institutional capacity required for creating and funding meaningful adaptation programs in the short term. Long term, the UNFCCC must work more closely together with forces such as the United Nations OHCHR, U.S. Agency for International Development, the North Atlantic Treaty Organization, military officers, civilian commands, and local non-governmental organizations to oversee a new and robust legal and policy architecture that coordinates adaptation with efforts to secure human rights protections, development, and human security across the globe. Relegating international adaptation policy solely to the UNFCCC alone reflects the shortsighted and unhelpful perception that climate change is merely an environmental problem.

In the end, it remains to be seen to what extent the UNFCCC's adaptation policies will ensure the basic protection of human rights. In this vacuum, a new conceptualization of adaptation must emerge. Adaptation driven by human security concerns might be an effective supplement to both the UNFCCC and to international human rights law as a way to better match policy responses to the importance and scale of the climate crisis.

B. The Money Gap

Outside human rights concerns, another issue tied closely with adaptation is finance. Ultimately, climate finance is an equity issue. Poor nations argue that rich nations are historically responsible for causing climate change and thus should pay to clean up the damage.For example, together the U.S. and China account for 38 percent of greenhouse gas emissions. See Margot Roosevelt, U.N.Pacts Contain Small Steps But No Broad Accord on Climate Change, L.A. Times, Dec. 12, 2010, available at http://www.latimes.com/news/local/la-me-climate-cancun-20101212,0,6973259.story. Wealthy nations have responded by pledging—in theory—to help finance poorer countries' adaptation to climate change. What has emerged has been referred to as the "money gap,"See Andrew Revkin, The Money Gap in the Climate Fight, N.Y. Times Dot Earth Blog (Nov. 17, 2010), http://dotearth.blogs.nytimes.com/2010/11/17/the-money-gap-in-the-climate-fight/. or the gap between the amount of funds rich nations have pledged but have yet to commit. The money gap is a key issue in adaptation going forward.

At COP 15, signatories to the Copenhagen Accord pledged monies toward financing adaptation and mitigation in the developing world. The agreement proposes $30 billion of Fast Start Finance funds for the 2010–2012 period, and $100 billion per year by 2020.COP 15, supra note 69, at art. 8. Specifically, the agreement proposes "[n]ew multilateral funding for adaptation [that] will be delivered through effective and efficient fund arrangements, with a governance structure providing for equal representation of developed and developing countries."Id. As of October 27, 2010, it is estimated that developed countries have publicly pledged $28.34 billion of Fast Start Financing.Athena Ballesteros et al., Summary of Developed Country 'Fast-Start' Climate Finance Pledges, World Resources Institute 3 (Oct. 27, 2010), available at http://www.wri.org/publication/summary-of-developed-country-fast-start-climate-finance-pledges. But the question is whether signatories will actually deliver on their pledges. There is no common reporting format, so pledges and deliveries are difficult to track.Dennis Tirpak et al., Guidelines for Reporting Information on Climate Finance 1–32 (WRI, Working Paper, May 2010) available at http://pdf.wri.org/working_papers/guidelines_for_reporting_information_on_climate_finance.pdf.

Another adaptation finance issue involves distribution mechanisms. At recent meetings in Copenhagen and Cancun, parties did not agree on a new mechanism for administering adaptation funding for pledges committed.Heather McGray, From Copenhagen to Cancun: Adaptation, World Resources Institute, May 13, 2010, available at http://www.wri.org/stories/2010/05/copenhagen-cancun-adaptation. See also Roosevelt, supra note 119.{/footnote} However, several adaptation finance mechanisms are already available under the UNFCCC—notably the Kyoto Protocol Adaptation Fund, The World Bank Pilot Program on Climate Resilience, and the Global Environment Facility (GEF).Id. But these mechanisms are controversial. Poor countries prefer that the funds flow through the Kyoto Protocol Adaptation Fund because they can access funding directly, without a United Nations intermediary.Id. Rich countries prefer the funds to flow through the World Bank.See Roosevelt, supra note 119. However, World Bank funds may force recipients of adaptation funds to take out loans, an unfair burden.See McGray, supra note 125. From a climate justice perspective, poorer countries should have equal power to direct which mechanisms are used to distribute adaptation finance.

The Declaration of the Climate Vulnerable Forum is one way in which poor countries have attempted to grasp the reigns of adaptation finance. The Declaration is an intentionally extra-legal and extra-political document that lives outside the UNFCCC framework, created by signatory states that feel ignored by the current law and policy infrastructure.Declaration of the Climate Vulnerable Forum, (Nov. 10, 2009), available at http://centralcontent.fco.gov.uk/central-content/campaigns/act-on-copenhagen/resources/en/pdf/climate-vulnerable-forum. Kiribati, the Maldives, Bangladesh, Ghana, Nepal, Kenya, Vietnam, and Barbados—among other "low-emitting countries that are acutely vulnerable to climate change"Id.—signed the document, which preemptively declared that the UNFCCC's COP 15 meeting in Copenhagen would fail to prioritize their needs. The Declaration, among other things, seeks additional financing mechanisms to fund adaptation in developing countries. The Declaration "[c]all[s] upon developed countries to provide public money amounting to at least 1.5% of their gross domestic product, in addition to innovative sources of finance, annually by 2015 to assist developing countries make their transition to a climate resilient low-carbon economy."Id. Some commentators, though, have casually dismissed these extralegal declarations as cries for aid.A Three Degrees Project collaborator made this comment off the record during a meeting.

However, the Declaration also calls upon international climate policy to address human rights, health, and security concerns specifically for those forced to relocate or who are left stateless. Not all signatories to the Declaration are island nations. But the threat of relocation may be just as compelling to states in Africa, such as Ghana, where migration is already taking place due to poverty and inequity,Sam Knight, The Human Tsunami, Financial Times, (Jun. 19, 2009), available at http://www.ft.com/cms/s/2/bb6b0efc-5ad9-11de-8c14-00144feabdc0.html#axzz164C3TcjI.{/footnote} much more common drivers of displacement than climate change alone.Jon Barnett & Michael Webber, Migration as Adaptation, in Climate Change and Displacement: Multidisciplinary Perspectives 37, 38 (Jane McAdam ed., 2010). Such a demand for rights-based protections from climate and non-climate threats alike calls for strengthened governments, institutions, and domestic rule of law—not just more aid. For, "[w]ithout improved political and economic institutions to reduce poverty and marginality, environmental change will continue to be an important proximate factor in migration decisions."Id. Those who might scoff at the Declaration because it threatens the global wealth balance are avoiding confronting the inequities ripe to adaptation. Stephen Castles, Research Professor of Sociology at the University of Sydney and Associate Director of the International Migration Institute at Oxford, puts it this way:

Weak states are not a fact of nature, but a result of inequality based historically on colonialism and, today, on neo-liberal globalization. Decrying potential climate induced displacement as a threat to the security [or wealth] of developed countries misses the point . . . that climate-induced displacement is a result of the human insecurity imposed on the South in the current global order.Castles, supra note 8.

The money gap is a thus a foreseeable consequence of many unresolved equity issues. First, wealthy nations—by throwing money at the problem—continue to avoid real efforts to mitigate impacts by being charitable. In an economy buried under global recession, it will inevitably prove difficult for countries to deliver upon even the most well-intentioned pledges. This is the case even though helping poor people in far-off places "adapt" to climate change seems—quite unfairly—to be preferable to reducing emissions at home. Second, depending on which mechanisms are used to distribute funding, the billions of dollars pledged for adaptation have tremendous potential to reinforce patterns of global inequity. It is quite problematic that no clear legal means for resolving disputes exist once monies begin to flow, and it is unclear who will arbitrate such issues as corruption charges, fights over entitlements, and claims of unfair distribution schemes. Finally, and perhaps most importantly, how much will climate change alone factor into which impacts warrant resources from adaptation funds? In his New York Times blog Dot Earth, opinion reporter Andy Revkin frames the question this way:

The issue is that all commitments under the language of the foundation climate treaty, the Framework Convention on Climate Change, relate only to climate change driven by the buildup of greenhouse gases. Who arbitrates what portion of a sub-Saharan drought is from this background warming and which part is driven by patterns of extreme drying etched in African climate history? No one, of course.See Revkin, supra note 120.

To the contrary, the answer is not "no one." International human rights bodies, as well as world organizations that promote development and protect human security, should arbitrate. Debate over which human impacts are climate-caused and which ones are not should not be argued when an individual's very survival—and global security for that matter—is at stake. Harms that are "[t]he result of sudden or gradual environmental disruption that is consistent with climate change and to which humans more likely than not contributed"Docherty and Giannini, supra note 7, at 361. should be the basic standard for evaluating where adaptation monies flow. As such, only the absolute minimal level of causation is necessary and no more. Standards for determining access to adaptation finance must be consistent with human rights laws and norms and with aims to protect human and global security.

C. Regionalized Harms Necessitate Regionalized Solutions

According to Chris Field, co-chair of the IPCC working group on impacts, adaptation and vulnerability, climate impacts are poorly known and understood.See Richard Black, IPCC Aims for Clarity and Relevance in New Report, BBC News, (Oct. 15, 2010), http://www.bbc.co.uk/news/science-environment-11551943. Thus, the IPCC is focusing more of its research in this direction.See IPCC, Agreed Reference Material for the IPCC Fifth Assessment Report, available at http://www.ipcc.ch/pdf/ar5/ar5-outline-compilation.pdf. See also Black, id. In order to prioritize which impacts receive adaptation funding, the IPCC's research on global climate impacts must then be downscaled and integrated into localized policies for response and action. Universities, the military, and civil society groups play a significant role in this effort.

For example, Dr. Richard Anyah, Professor of Atmospheric Sciences at the University of Connecticut, is studying meteorology and atmospheric science in Kenya, focusing on developing regional climate change scenarios. He stresses the importance of regionalizing the problem of climate change and its solutions.Yale Environment 360 and Media Storm, When the Water Ends: Africa's Climate Conflicts, http://e360.yale.edu/feature/when_the_water_ends_africas_climate_conflicts/2331/ (last visited Nov. 23, 2010). Harms must be contextualized for impacts to translate and relate to impacted communities. In that vein, Dr. Ton Dietz, a Professor of Geography at the University of Amsterdam, promotes "needlework policy," calling for development and adaptation plans sensitive to local conditions and perceptions of climate change rather than a one-size-fits all approach.See Knight, supra note 134. Needlework policy promotes bottom-up approaches to adaptation—strategies and responses that impacted communities craft themselves. Bottom-up approaches are one of the key principles of human security, and thus should play a critical role in any sound adaptation policy agenda or in setting funding priorities.See Beebe & Kaldor, supra note 48. "This decentralized approach will not be sufficient in itself to solve the climate change problem. But it offers a useful supplement to the UNFCCC process and will be all the more important if the UNFCCC continues to be stalemated."See Bodansky, supra note 118.

Thus, climate adaptation policies should be coordinated but not universal. They should be targeted to respond to particularized impacts on specific regions, places, and communities. They should be flexible enough to respond to improvements in science. And, perhaps most importantly, they should invest in capacity building. Communities are already impacted by climate change and they are already adapting. Yet building capacity so that communities can more effectively respond to current risks is critical for adaptation. One UNDP working group identified capacity building as a key strategy for addressing climate change adaptation:

[S]trengthening national and local capacities to manage climate-related risks, as they can be understood now, is the best strategy to be able to manage more complex climate risk in the future. It is also more feasible to mobilize national and international political and financial resources to manage an existing risk scenario than to address a hypothetical future scenario. Medium and long-term adaptation must begin today with efforts to improve current risk management and adaptation. And lessons from current practices along with the notion that learning comes from doing are of critical importance.UNDP, UNDP Expert Group Meeting, Integrating Disaster Reduction with Adaptation to Climate Change, A Climate Risk Management Approach to Disaster Reduction and Adaptation to Climate Change 18 (2002), available at http://www.undp.org/cpr/disred/documents/wedo/icrm/riskadaptationintegrated.pdf.

For example, right now, decision makers could work with local groups to take many productive steps, such as 1) suspend taxesSee Knight, supra note 134. or provide free seeds during droughts; 2) provide pest- and mold-proof insulated storage facilities for grains;Michael Glantz, Are Famines so Difficult to Predict, University Corporation for Atmospheric Research (2007), available at http://ccb.colorado.edu/ijas/ijas.html (last visited Nov. 22, 2010). 3) change hunting seasons to coincide with shifting seasonality patterns of caribou; and 4) initiate programs to train citizens from climate impacted communities in meteorology or in the use of regional climate models.See International Research Institute for Climate and Society (IRI), http://portal.iri.columbia.edu/portal/server.pt (last visited Nov. 23, 2010). See also Cathy Vaughan, Democratizing Seasonal Forecasting in Latin America, IRI (Nov. 3, 2010), http://portal.iri.columbia.edu/portal/server.pt?open=512&objID=699&parent-name=CommunityPage&parentid=0&mode=2&in_hi_userid=2&cached=true (last visited Nov. 22, 2010). In addition, assuming that researchers continue to document an increase in violent crimes during excessively hot days, doctors and psychologists could work with law and policy makers to debate the formation of a new criminal defense for crimes committed under conditions of excessive heat. International migration policies could incorporate protections for the rights to work and job training, to leave and re-enter, to health (including mental health care and counseling), and to additional protections, such as social security, land title, citizenship status, and cultural values.See Castles, supra note 8, at 246. Finally, local law and policy makers could prioritize adaptation strategies based on what security means to their communities.See Marqusee, supra note 88. Col. Beebe spent one year interviewing Africans—from cab drivers, to academics, NGOs, and military leaders—about their definition of security. He learned that "creeping vulnerabilities," such as climate change and poverty, factored more into peoples' views on security than did physical violence. Policymakers should then build local and institutional capacity to anticipate risks to that security and craft adequate local responses based on local knowledge and priorities.

The above list of localized law and policy changes is suggestive of the types of important immediate "climate" adaptation policies capable of protecting human rights and furthering human security in a warmer world. Strengthening the rule of law—the legitimacy and effectiveness of laws, policies, and institutions such that 1) people understand and activate their rights, and 2) lawyers and judges actively enforce these rights—is essential to strengthening local adaptation capacity. Laws to suspend taxes during times of severe drought, mitigate criminal sentences for prisoners who commit crimes linked to heat stress, and shift hunting seasons when seasonality disrupts migration patterns, may be perceived as insignificant and unrelated to climate adaptation. But once climate problems are dissected, one discovers that small, seemingly insignificant solutions have considerable leverage for improving peoples' lives. Politically decentralized actions that prioritize human security—whether through ensuring access to clean drinking water or strengthening public health systems—must be packaged in effective frameworks that define overarching goals and coordinate actions across multiple scales of government and society. Our climate justice framework is one example. (See Sec. II.)

The task of creating frameworks for adaptation that are culturally competent, localized, multidisciplinary at heart, and capable of supporting a "calculus-based" model of human security with all of its combinations of permutations, makes mitigation seem easy. Adaptation is indeed much more complicated. Yet it offers many co-benefits, including the opportunity to securitize human rights and build a better future. As "adaptation is more than merely avoiding climate risks, and must accommodate peoples' rights and aspirations for the future."Barnett & Webber, supra note 135, at 51, citing W. Neil Adger et al., Adaptation to Climate Change in the Developing World, 3 Progress in Development Studies 179 (2003).


Our own heat hypothesis—that global security will be more impacted by heat stress than by rafts of climate refugees relocating to escape rising seas—is neither meant to undermine the plight of peoples who may eventually need to relocate due to rising sea levels nor to discourage the remarkable efforts made to protect the rights of "climate change refugees" or the human rights of peoples fighting for survival on small-island states.

The attention on the climate refugee constituency, evidenced by countless media articles and recent legal scholarship drafting a separate refugee conventions for climate refugeesSee Docherty and Giannini, supra note 7. is by no means undeserved. But law and policy makers should neither get complacent nor stop there. Instead, we argue that forced migration should be considered "a matter of last resort when other adaptation strategies have failed, rather than an automatic response to environmental degradation."Jane McAdam, Introduction to Climate Change and Displacement: Multidisciplinary Perspectives 1, 4 (Jane McAdam ed., Hart Publishing 2010). The emphasis on a more complex set of interactions—as framed by the ubiquitous impacts of heat that necessitate a human security narrative—has to a large extent been neglected. This is unacceptable. To protect human dignity in the face of creeping vulnerabilities, for which climate change is but one cause and migration is but one response, adaptation policies must both protect the "right to stay as well as the right to leave, allowing people to choose the response that best suits their needs and values."Barnett & Webber, supra note 135. As argued earlier, adaptation policies must not favor one universal response, such as permanent migration.Id. at 50. Instead:

Responses need to be guided by considered, well-informed research, not by sensationalism, assumptions or fear. To oversimplify the causes of movement, misuse terminology, and not listen to the voices of affected populations obscures the multiplicity of factors that need to be considered in any formal response. As some scholars have observed, it is essential to consider 'the socio-cultural-political-economic environment that communities exist in; the cognitive processes of the people experiencing the impact of climate change; the individual, household, and community attitudes to migration and migration outcomes; and the type of climate stimulus that migration may be responding to.'McAdam, supra note 154, citing D. Kniveton et al., Climate Change and Migration: Improving Methodologies to Estimate Flows 33 IOM Migration Research Series 57 (2008).

With this article, we wish to make a compelling case that in addition to small island states, there are countless other global hot spots where migration is just one factor as climate change, human security, and economic security collide.See Schubert et al., supra note 3. Heat will exacerbate the existing conflicts prone in these areas, which requires adaptation policies tailored to a human security agenda.

One of these global hot spots is Australia. Australia is the world's driest continent, Living with Drought, Australian Bureau of Meteorology, http://www.bom.gov.au/climate/drought/livedrought.shtml (last visited Nov. 22, 2010). deemed to become one "inevitable" home for climate refugees from the Pacific islands.Climate Refugees in Australia 'Inevitable,' Australian Broadcasting Corporation, (Dec. 11, 2009) http://www.abc.net.au/news/stories/2009/12/11/2769403.htm. In response, Australia has been pressured to open its borders to climate refugees.Neil MacFarquhar, Refugees Join List of Climate Change Issues, N.Y. Times, (May 29, 2009) available at http://www.nytimes.com/2009/05/29/world/29refugees.html. Ross Garnaut, former climate change adviser to the Australian government, has stated that "[t]he rest of the world expects that and, in the end, we're likely to accommodate that, so there's a solution there."See Climate Refugees, supra note 160. However, "[i]n the three-degree [warmer] world, far more of Australia will burn."Lynas, supra note 18, at 143–46. More bush fires may make Australia's landscape less tolerable for displaced climate refugees attempting to make a new home there. Australia has a long history with bush fires, but as temperatures climb, bush fires will endanger more people as fire risk and intensity multiply with increasing drought and heat. These extreme conditions will cause a rise in the spread of vector-borne disease (such as dengue fever), agricultural collapse, rationed water, burned houses, and economic loss for the everyday person and for Australia as a whole,Id. with no legal redress for damages. Climate refugees, if treated as second-class citizens, may be particularly vulnerable. Thus, the promise that Australia may provide a safe haven for climate refugees may be an empty one. Migration as a solution that solves all problems may not be as feasible as Australia, or the world, had hoped. Human security strategies may help better connect the dots.

Another example comes from Carteret Islands of Papua New Guinea. Although media coverage of the issue singled out the refugee crisis, as you will read below, relocation is not the whole story. Due to eroding shorelines, in 1984 the government of Papua New Guinea relocated ten families from the Carteret Islands to the main island of Bougainville, who later returned when fleeing from civil war.See Rakova, supra note 9. The persistent, unanswered question seems to be where in a warmer world can you relocate coastal communities if there is persistent global instability? In 2006, in response to a lack of government assistance with efforts to relocate, the Carterets' Council of Elders formed a nonprofit organization to assist most of the Carterets' population of 3300 in voluntarily relocating to Bougainville.Id. The media branded the peoples of the Carterets the world's first climate refugees.John Vidal, Pacific Atlantis: First Climate Change Refugees, The Guardian (Nov. 25, 2005), http://www.guardian.co.uk/environment/2005/nov/25/science.climatechange. However, the climate refugee label means nothing to Carteret Islander Ursula Rakova, who wrote:

[T]he story you have not likely read is the one of government failure and the strategy we developed in response, so as to engineer our own exile from a drowning traditional homeland. Carterets' people are facing, and will continue to face, many challenges as we relocate from our ancestral grounds. However, our plan is one in which we remain as independent and self-sufficient as possible. We wish to maintain our cultural identity and live sustainably [sic] wherever we are. While we call on the Papua New Guinea government to develop policy, we are not sitting by. Instead, we now want to see the media headlines translate into practical assistance for our relocation program. And we hope our carefully designed and community-led action plan can serve as a model for communities elsewhere that will be affected by climate change in the future.See Rakova, supra note 9.

In theory, linking human security to adaptation efforts is a first step to offering adequate adaptation responses that protect human rights, uphold human dignity, and achieve climate justice. Because, "[h]uman security evokes the faces of the world's poor, in rural and urban areas, struggling to earn a living, the name itself places the individual and human well-being at center stage, revealing the insufficiency of a state-based approach to security."Goldsworthy, supra note 52, at ix. The exacerbation of poverty through climate change will further challenge the traditional, discrete models of security infrastructures, humanitarian aid efforts, and environmental policies. At the same time, these interconnections challenge us "to examine larger questions of human vulnerability, the dynamics of conflict and cooperation, and, ultimately, equity and justice."Id.

If a human security framework delivers an innovative and coherent way of thinking about the human dimensions of climate impacts in our increasingly interconnected and interdependent world, it may provide the most useful lens for crafting and critically evaluating climate adaptation policy.

In this essay, we have advocated the strategy of addressing climate adaptation by applying a human security perspective. And although we focus explicitly on climate adaptation, we do not wish to diminish the importance of climate mitigation. In order to limit climate impacts on the world's most vulnerable peoples, the human community must also work actively to decarbonize the future by investing in critical renewable energy sources and infrastructure. One key area of overlap between our human security focus and many climate mitigation efforts is the idea of energy security—the focus of Admiral Mullen's speechSee Mullen, supra note 91. and one permutation of complex variables important to Col. Beebe's call for a "calculus-based" security model.See Marqusee, supra note 88. Although energy security is an important component of human security, it hides the full story. Human security, the broader lens we apply in this essay, more fully embodies the type of holistic thinking that we argue is required to solve the complex problems of a warmer world. For it is our basic social, political, and economic institutions—despite any faint pride that we may boast about our modest investments in renewable energy development—that will ultimately determine the extent of climate change's impacts on humanity in a warmer world.

Additionally, the prospect of a thriving renewable energy landscape appears to be bleak. Although investment in renewable energy is critical, we cannot yet rely on the benefits. Energy forecasts for the year 2035 reveal the domination of oil despite the availability of alternative energy sources today.Aaron Smith, Energy in 2035: China and Oil Dominate, CNNMoney.com (Nov. 9, 2010), http://money.cnn.com/2010/11/09/news/international/energy_forecast_china_oil/index.htm. Thus, planning for the future demands planning for the worst-case scenario, a future where carbon dioxide remains largely uncaged. The consequences of inaction are not difficult to imagine: picture an image of the sun throwing itself across a barren Arctic horizon while a camel rises on its haunches in the heat. People are hungry and thirsty and being forced to relocate from their homes. Governments crumble. Rights are systematically violated. Cultures disappear. All of these harms take place on a scale that we have never dared to imagine. Without regimes in place now to achieve drastic emissions reductions, more comprehensive adaptation planning will be critical to meet the needs of a desperate human population. Human security ought to be a major component of that planning process.


Jennifer Marlow and Jennifer Krencicki Barcelos received their J.D.s from the University of Washington School of Law, and are Co-Executive Directors of the Three Degrees Project at the University of Washington School of Law. The authors would like to offer their most sincere gratitude to the mentors who have inspired them: William H. Rodgers, Jr., Mary Robinson, Kellye Testy, Joel Ngugi, Louis Wolcher, Michele Storms, David Battisti, Gus Speth, Mickey Glantz, Stephen Gardiner, Alex Steffen, Michael Robinson-Dorn, and Peter Sauer. The authors accept full responsibility for the content of this article.

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Any post-Kyoto climate change treaty regime must seek to fully engage the use of carbon sinks to complement emissions reduction measures in order to comply with the treaty's mandates. The Kyoto Protocol did not include avoided deforestation as a mechanism for earning emission reduction credits. However, reducing emissions from deforestation and degradation (REDD) quickly gained popularity as a viable climate change compliance strategy in the period immediately preceding the negotiations at the Fifteenth Conference of the Parties (COP 15) in Copenhagen in 2009. The Copenhagen Accord is replete with references to REDD as a focus for the international community's progression toward a binding successor agreement to the Kyoto Protocol.

Ocean iron fertilization (OIF) is an emerging and controversial strategy to promote climate change treaty compliance, and may be the next step in engaging the creative use of carbon sinks to fulfill carbon reduction mandates. Both REDD and OIF must overcome challenges such as developing effective monitoring techniques, ensuring the "permanence" of emission reductions, and avoiding "leakage" of such reductions. Like REDD, OIF could promote a global carbon trading market that may help ensure the success of a post-Kyoto climate change treaty. Unlike REDD, however, OIF is hampered by "moral hazard" and "unintended consequences" concerns associated with its techniques. In addition, to ensure effective regulation of the research and implementation of OIF projects, OIF must overcome significant international law governance challenges. Nevertheless, OIF has the potential to build on REDD's success and become incorporated as another important dimension of a post-Kyoto carbon market system.

I. Introduction

Climate change is the most daunting and divisive environmental governance issue that humanity has ever faced. Traditional treaty negotiation and implementation efforts remain relevant to combat this crisis; however, these channels of governance and diplomacy have fallen short of expectations in significant respects in the past two decades. For example, the refusal of the United States to become a member of the Kyoto Protocol Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature Dec. 11, 1997, 2303 U.N.T.S. 162 (entered into force Feb. 16, 2005) [hereinafter Kyoto Protocol]. has severely undermined the effectiveness of this global greenhouse gas emissions reduction agreement. In addition, the Copenhagen Accord U.N. Framework Convention on Climate Change Conference of the Parties, Copenhagen, Den., Dec. 7-19, 2009, Copenhagen Accord, art. 6, U.N. Doc. FCCC/CP/2009/L.7 (Dec. 18, 2009), available at http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf#page=4.pdf [hereinafter Copenhagen Accord]. does not commit nations to binding emission reduction goals and is a merely aspirational, non-binding international law agreement. Therefore, the much-anticipated Fifteenth Conference of the Parties to the United Nations Framework Convention on Climate Change (COP 15), held in Copenhagen in 2009, was widely regarded as a failure Given the recent failures in international climate change negotiations, some commentators have questioned whether the U.N. Conference of the Parties model is the best approach to address the international climate change crisis. See, e.g., John M. Broder, The Last U.N. Climate Extravaganza?, N.Y. Times, Oct. 8, 2010, http://green.blogs.nytimes.com/2010/10/08/the-last-u-n-climate-extravaganza/.

Relying exclusively on traditional domestic emission reduction strategies will not suffice to meet the ambitious and urgent goals of climate change treaty compliance in the post-Kyoto era. The parties to the Kyoto Protocol recognized the need for flexible compliance strategies and implemented one such mechanism to fulfill this objective in the form of the Clean Development Mechanism (CDM).Kyoto Protocol, supra note 1, at art. 12. This creative compliance mechanism provides an opportunity for partnerships between developed and developing countries to promote clean energy projects that enable the participating countries to earn credits for emission reductions.See id.

The international community now has a valuable opportunity to expand the scope of the CDM model and employ market-based mechanisms, consequently providing more flexibility in responding to the climate change crisis. Carbon markets have developed rapidly since the Kyoto Protocol's emissions reduction commitments entered into force in 2005. Mandatory and voluntary carbon markets have been established.Clément Chenost et al., Bringing Forest Carbon Projects to the Market, UNEP 24, (2010), available at http://www.unep.fr/energy/activities/forest_carbon/pdf/Guidebook%20English%20 Final%2019-5-2010%20high%20res.pdf [hereinafter Chenost]. The mandatory carbon markets, such as the EU Emissions Trading System, have not drawn on avoided deforestation credits.Id. at 32. However, within the past few years, voluntary carbon markets based on reducing emissions from deforestation and degradation (REDD) have emerged and are working effectively.Id. at 35. These developments offer some hope that an international carbon market, bolstered by the authorized use of avoided deforestation credits, could evolve as part of a post-Kyoto climate change compliance regime.

If and when REDD becomes more institutionalized, ocean iron fertilization (OIF) projects may then be able to capitalize on REDD's successes and become the next step forward in the use of market-based climate change regulation mechanisms. Tradable credits generated from the carbon dioxide sequestered from OIF projects could be part of a climate change compliance regime in much the same manner as avoided deforestation credits in REDD. However, several social, scientific, and legal uncertainties impede OIF's succession of REDD.

II. Reducing Emissions from Deforestation and Degradation (REDD)

The Kyoto Protocol's exclusion of two significant contributing sources to climate change—deforestation and forest degradation—from its regulatory framework is one reason it failed to produce an adequate international response to climate change.During the Kyoto Protocol negotiations, REDD was considered and ultimately rejected for inclusion as one of the flexibility mechanisms in the Protocol. See Crystal Davis, Protecting Forests to Save the Climate: REDD Challenges and Opportunities, World Resources Institute, Apr. 23, 2010, http://earthtrends.wri.org/updates/node/303; See also Randall S. Abate & Todd A. Wright, A Green Solution to Climate Change: The Hybrid Approach to Crediting Reductions in Tropical Deforestation, 20 Duke Envtl. L. & Pol’y F. 87, 100 (2010) (more than a decade after the exclusion of REDD from Kyoto, “developing countries remain ineligible to earn tradable carbon credits under the Kyoto Protocol for curbing deforestation.”) [hereinafter Abate & Wright]. Reducing emissions of greenhouse gases from traditional industrial sources, while failing to address emissions from other significant sources, created a situation of winning the battle but losing the war against climate change. Deforestation and forest degradation release up to 18 percent of annual global carbon dioxide emissions.Sir Nicholas Stern, The Stern Review on the Economics of Climate Change 171 (2006), available at http://www.hm-treasury.gov.uk/stern_review_report.htm [hereinafter Stern]. Forestry projects under the CDM do not include avoided deforestation but rather are limited to afforestation and reforestation.See Bernard Schlamadinger et al., Should We Include Avoidance of Deforestation in the International Response to Climate Change?, in Tropical Deforestation and Climate Change 53, 53 (Paulo Moutinho & Stephan Schwartzman eds., 2005). “Afforestation and deforestation both refer to anthropogenic conversion of non-forested areas into forested land. The difference is that afforestation refers to projects on land that has not been forested for at least fifty years, while reforestation refers to the conversion of non-forested areas that have not been forested since December 31, 1989.” Abate & Wright, supra note 9, at 94 (internal citations omitted). REDD’s system of generating credits for avoided deforestation provides a more effective response to limiting anthropogenic greenhouse gas emissions from deforestation and forest degradation as compared to the CDM’s limited framework. Moreover, CDM forestry projects comprise only 0.4 percent of all registered CDM projects.Chenost, supra note 6, at 8. The CDM also has failed to provide developing countries with a meaningful role in addressing global climate change because it is too narrow and administratively stringent to achieve broad-based participation.Abate & Wright, supra note 9, at 95-97; see generally Ann E. Prouty, The Clean Development Mechanism and its Implications for Climate Justice, 34 Colum. J. Envtl. L. 513 (2009); Michael Wara, Measuring the Clean Development Mechanism’s Performance and Potential, 55 UCLA L. Rev. 1759 (2008) (discussion of the CDM and some of the criticisms that have been lodged against it).

REDD offers an opportunity to build on the CDM's basic premise of cultivating partnerships between developed and developing nations in meeting climate change commitments, while operating in a more flexible and inclusive manner. REDD represents a critically important partnership between developed and developing countries. It involves developed countries paying developing countries to protect their tropical forests as an international climate change mitigation strategy.See UN-REDD Programme: The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (2009), http://www.un-redd.org/AboutREDD/tabid/582/language/en-US/Default.aspx REDD seeks to establish a financial value for the carbon stored in forests by offering incentives for developing countries to reduce emissions from forested lands.Id.

Even though the international community was well aware of the important role that REDD could play in climate change treaty compliance, the parties to the Kyoto Protocol rejected the inclusion of this mechanism within the regime's regulatory framework, citing concerns relating to monitoring and verification of reductions from REDD projects.Abate & Wright, supra note 9, at 98. Conceptually, environmental groups opposed REDD on the basis that industrialized nations should not be permitted to circumvent their greenhouse gas emission reduction requirements by investing in REDD projects.Erin Myers Madeira, Reduced Emissions from Deforestation and Degradation (REDD) in Developing Countries: An Examination of the Issues Facing the Incorporation of REDD into Market-Based Climate Change Policies 29 (2008), available at http://www.rff.org/RFF/Documents/RFF-Rpt-REDD_final.2.20.09.pdf.Another major concern is that funds generated from REDD activities could work to the detriment of indigenous forest communities by falling into the hands of corrupt local government officials.Id.

Several years after being considered and rejected as a Kyoto compliance mechanism, REDD's role as a potentially valuable tool in the fight against climate change gained popularity at the Eleventh Conference of the Parties of the United Nations Framework Convention on Climate Change (COP 11) in Montreal in 2005.Rhett Butler, Forest Conservation in U.S. Climate Policy: An Interview with Jeff Horowitz, Mongabay.com, Feb. 5, 2010, available at http://print.news.mongabay.com/2010/0205-adp_forests_redd.html?print. "Spearheaded by the Coalition of Rainforest Nations, a group of developing nations with a high percentage of tropical rainforests that support the use of carbon credits to curb tropical deforestation, REDD was proposed as a way to enhance developing nations' contribution to climate change compliance."Randall S. Abate, REDD, White, and Blue: Is Proposed U.S. Climate Legislation Adequate to Promote a Global Carbon Credits System for Avoided Deforestation in a Post-Kyoto Regime?, 19 Tul. J. Int’l & Comp. L. 95, 99 (2010) (internal citations omitted). REDD also was expressly included as part of the Bali Action Plan at COP 13 in Bali in December 2007,See Bali Action Plan, Decision -/C.P. 13, available at http://unfccc.int/files/meetings/ cop_13/application/pdf/cp_bali_action.pdf. which called for "policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries." Id. at art. 1(b)(iii). From 2005 to the present, REDD has become a focus of the developing world's negotiation strategy for a post-Kyoto regime.For a comprehensive summary of the evolution of REDD from Kyoto to Copenhagen, see generally Carbon Planet White Paper: The History of REDD Policy (Dec. 4, 2009), available at http://www.carbonplanet.com/protected_downloads/white_papers/The_History_of_REDD.pdf.

Prior to the linking of forest conservation and climate change compliance through REDD projects, global forest conservation efforts had been limited to non-binding international environmental agreements such as the forest conservation principles developed at the United Nations Conference on Environment and Development in 1992.See Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, June 13, 1992, 31 I.L.M. 881. Consequently, the win-win scenario that REDD offers to achieve two desirable goals simultaneously—conserving forests and addressing the climate change problem—has a compelling appeal if incorporated into a mandatory climate change regime. However, the international community's confidence in the reliability of this alternative compliance mechanism has developed slowly and reluctantly.

The implementation challenges that critics have raised about REDD led to the creation of "REDD+" as a potentially more effective and flexible form of REDD for the future. "REDD's evolution into REDD+ at the Poznan negotiations in December 2008, and the Bonn negotiations in March 2009, helped propel the hope that REDD would be instrumental at Copenhagen."Abate, supra note 20, at 100. REDD+ was developed as a way to preserve what was compelling about REDD as a climate change compliance strategy and transform it into an approach to promote sustainable development in forestry management practices in developing nations. REDD+ involved a transition to an enhanced, broad-based approach that includes conservation, sustainable forest management, and forest carbon stock enhancement. Food and Agriculture Organization (FAO) and the Center for People and Forests, Forests and Climate Change After Copenhagen: An Asia-Pacific Perspective 6 (2010), available at http://recoftc.org/site/fileadmin/docs/publications/The_Grey_Zone/2010/FCC-after-Copenhagen_3.pdf [hereinafter FAO Report]. "REDD+ goes further than just rewarding actions that 'do less harm' (e.g. less forest clearance and unsustainable management). It will also reward practices that 'do more good' such as those that create new, and improve existing, carbon sinks."Id. In May 2010, fifty-two nations gathered in Oslo, Norway for a climate change and forests conference.Climate Change Commission Joins 52 Countries in REDD+ Partnership — Alvarez, Bayanihan, May 30, 2010, http://bayanihan.org/2010/05/30/climate-change-commission-joins-52-countries-in-redd-partnership-alvarez. The meeting was regarded as an important step forward to help REDD+ gain momentum in the months leading up to COP 16 in Cancún, Mexico in December 2010. Id. See also, Oslo Climate Change Conference Report – May Feature, Cool Earth, May 2010, http://www.coolearth.org/371/news-32/features-147/oslo-climate-change-conference-report-may-feature-1400.html (Robert Zoellick, chief of the World Bank, remarked that the outcome of the Oslo meeting may “be the first comprehensive component for a future international agreement on climate change.”).

One of the greatest successes of the Copenhagen Accord is the inclusion of references to REDD and REDD+ that appear throughout the agreement.Commentators who considered the negotiations at Copenhagen to be at least partially successful referred to the inclusion of REDD as the foundation for that conclusion. See, e.g., Tensie Whelan, REDD in Copenhagen: Picking the Low-Hanging Fruit vs. Saving the Tree, Envt’l Leader, Dec. 16, 2009, http://www.environmentalleader.com/2009/12/16/redd-in-copenhagen-picking-the-low-hanging-fruit-vs-saving-the-tree/; and Butler, supra note 19. For example, Article 6 acknowledges the critical role of reducing emissions from deforestation and forest degradation to "enable the mobilization of financial resources from developed countries" to reduce global greenhouse gas emissions.See Copenhagen Accord, supra note 2, art. 6 Article 8 seeks to implement this objective by providing that developed countries will contribute 30 million dollars in adaptation funding between 2010-2012 to the "most vulnerable developing countries, such as the least developed countries, small island developing states and Africa."Id. art. 8. Despite these positive steps forward, the Accord contains little guidance regarding how to implement the REDD provisions in the agreement.

Not surprisingly, funding is one of the most significant unanswered questions regarding the implementation of REDD projects. Financing for REDD activities could be fund-based, market-based, or a combination of these approaches. REDD activities are likely to be fund-based initially with market-based support factoring in slowly over time.FAO Report, supra note 26, at 7. Market-based support will likely evolve into mandatory compliance schemes as confidence in the carbon market system grows.See id.

COP 15 represents the first significant step forward for REDD as a component of a post-2012 climate change regime because the Copenhagen Accord negotiated at the meeting contains important references to REDD and REDD+.See Copenhagen Accord, supra note 2, arts. 6, 8. Despite the failure to forge a binding climate change agreement in Copenhagen, there is a sense of cautious optimism that the negotiations and outcomes addressing REDD from the Copenhagen meeting have established a framework for continued progress on this issue in future COP meetings.FAO Report, supra note 26, at 5. COP 16, which is taking place as of this writing in Cancun, Mexico in December 2010, will be an important gauge of the significance of REDD’s role in negotiating a post-Kyoto agreement. Nevertheless, while its popularity has continued to grow in the international community, REDD has been slow to take hold in carbon markets because of implementation concerns regarding monitoring, additionality, permanence, and leakage of REDD activities.Abate & Wright, supra note 9, at 102-05. OIF also faces these challenges, which will be discussed below.

III. Ocean Iron Fertilization (OIF)

Deforestation and forest degradation are significant components of the climate change crisisSee Stern, supra note 10 and accompanying text. and must be regulated regardless of whether such controls are implemented through REDD or some other mechanism. Like REDD, ocean iron fertilization (OIF) is a market-based method of reducing the amount of atmospheric carbon dioxide. OIF differs from REDD in that while REDD seeks to prevent anthropogenic emissions from deforestation, OIF involves the capture of carbon through direct or indirect addition of iron to surface waters.U.N. Educ. Scientific & Cultural Org. (UNESCO), Intergovernmental Oceanographic Commission, Ocean Fertilization: A Scientific Summary for Policy Maker, IOC/2010/BRO/2 (forthcoming 2010) (prepared by Doug Wallace et al.) [hereinafter Intergovernmental Oceanographic Commission]. OIF is designed to "enhance microscopic marine plant growth, on a scale large enough not only to significantly increase the uptake of atmospheric carbon by the ocean, but also to remove it from the atmosphere for long enough to provide global climatic benefit."Id. Notwithstanding the conceptual difference between REDD and OIF, many of the challenges and opportunities for success associated with adopting REDD as a climate change compliance mechanism also apply to employing OIF techniques.

OIF involves dispersing iron particles into ocean areas where iron exists in low concentrations such that its absence limits phytoplankton growth.Randall S. Abate & Andrew B. Greenlee, Sowing Seeds Uncertain: Ocean Iron Fertilization, Climate Change, and the International Environmental Law Framework, 27 Pace Envtl. L. Rev. 555, 561 (2010). The addition of iron is designed to "stimulate the rapid growth of phytoplankton whose photosynthetic activity could potentially absorb heat trapping carbon."Id. at 560-561. The ultimate objective of OIF is to absorb carbon dioxide and store it in the ocean interior for an adequate duration and in a sufficient quantity so as "to make a significant reduction in the increase of atmospheric CO2 in a verifiable manner, without deleterious unintended side effects."Intergovernmental Oceanographic Commission, supra note 39.

There are two primary categories of climate geoengineering techniques: solar radiation management and carbon dioxide removal.Kelsi Bracmort, et al., Cong. Research Serv., R41371, Geoengineering: Governance and Technology 2 (2010), available at http://www.fas.org/sgp/crs/misc/R41371.pdf. OIF is a method of carbon dioxide removal. Implementing geoengineering projects such as OIF involves the threat of transboundary impacts. U.S. Gov’t Accountability Office, GAO-10-546T, Climate Change: Preliminary Observations on Geoengineering Science, Federal Efforts, and Governance Issues: Testimony Before the Committee on Science and Technology 5 (2010) [hereinafter GAO Report] (statement of Frank Rusco, Director, Natural Resources and Environment), available at http://www.gao.gov/new.items/d10546t.pdf. The U.S. Government Accountability Office has recommended that, where transboundary impacts are involved, transparency and international cooperation are key factors for pursuing geoengineering research.Id. at 10.

A. Obstacles to OIF Implementation

OIF faces several critical challenges that currently limit its ability to be implemented as a viable climate change compliance mechanism in a mandatory or voluntary regulatory scheme. These challenges can be grouped into two general categories: 1) social and moral concerns, including concerns regarding unintended consequences, and 2) international and domestic law governance issues.

1. "Moral Hazard" and "Unintended Consequences" Concerns

The "moral hazard" concern associated with climate geoengineering tactics, including OIF, is that these techniques represent a short cut or substitute for continuing with aggressive targets and timetables for greenhouse gas emission reductions for all nations.See Laura Helmuth, Riled up About Geoengineering, Smithsonian.com, Feb. 23, 2010, http://blogs.smithsonianmag.com/science/2010/02/23/riled-up-about-geoengineering/. Advocates of climate geoengineering techniques disagree with this characterization and maintain that these techniques would supplement, not supplant, existing climate change mitigation mandates.See Josh Horton, What Moral Hazard?, Geoengineering Politics, Sept. 17, 2010, http://geoengineeringpolitics.blogspot.com/2010/09/what-moral-hazard.html. Regardless of whether the moral hazard concern is well grounded, climate geoengineering tactics remain highly controversial because of this issue.

In addition to the moral hazard obstacle, concerns abound regarding the unintended consequences of climate geoengineering techniques. The international community has previously confronted unintended consequences concerns regarding such deliberate alteration of the "natural order of things" in other contexts. One example is the release of genetically modified organisms under the Biosafety Protocol to the Convention on Biological Diversity (CBD).See Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted Jan. 29, 2000, 39 I.L.M. 1027, 2226 U.N.T.S. 208. The Earth's climate system is so complex, and our understanding of it so incomplete, that OIF could cause dangerous unintended consequences that ultimately risk doing more harm than the alternative of inaction. Critics of OIF are concerned that a chain reaction of geoengineering responses to the intended and unintended consequences of the deliberate alteration of the climate system could continue indefinitely.Adam Corner & Nick Pidgeon, Geoengineering the Climate: The Social and Ethical Implications, Env’t., Jan.-Feb. 2010, at 24, 31. One critic cautioned that, "[e]nvironmental impacts associated with ocean fertilization schemes could dwarf the current Gulf oil spill disaster."Iron Fertilization Dead in the Water? Controversial Geoengineering Proposal Banned in US Climate Legislation, Underwater Times.com News Service, (2010), http://www. underwatertimes.com/news.php?article_id=20716358491.

Two important issues demonstrate the potential for more harm than good from OIF projects. First, OIF has been proposed as a potential strategy to mitigate ocean acidification.Long Cao & Ken Caldeira, Can Ocean Iron Fertilization Mitigate Ocean Acidification?, A Letter, 99 Climatic Change 303, 303 (2010), available at http://www.stanford.edu/~longcao/ Ocean acidification is caused by increased carbon deposition in the oceans as a result of increased atmospheric carbon dioxide. See Robin Kundis Craig, Climate Change Comes to the Clean Water Act: Now What?, 1 Wash. & Lee J. Energy Climate & Env’t 5, 9 (2010). A 2010 study concluded, however, that OIF "can only slightly mitigate surface ocean acidification caused by anthropogenic [carbon dioxide] emissions, and at the expense of accelerated acidification of the deep ocean."Cao & Caldeira, supra note 52. Second, in 2008, a moratorium on OIF was implemented under the CBD because of the need for more research on the unsettled science of OIF and because of the potential for unintended consequences that could ensue from deploying OIF techniques. Abate & Greenlee, supra note 41, at 576. Two years later, the value of this precautionary measure became evident when a study revealed that OIF could produce toxic algae blooms and cause neurological disorders in marine mammals.Charles Trick, et al., Iron Enrichment Stimulates Toxic Diatom Production in High-Nitrate, Low Chlorophyll Areas, 107 PNAS 5587, 5891 (2010).

Research on OIF within the past two years has concluded that OIF's carbon sequestration potential comes at a high ecological price.Jessica Marshall, Ocean Geoengineering Scheme May Prove Lethal: Seeding the oceans with iron could result in the production of a potent neurotoxin, putting the lives of birds, fish and even humans at risk, Discovery News, Mar. 15, 2010, http://news.discovery.com/earth/ geoengineering-carbon-sequestration-phytoplankton.html. OIF has the potential to negatively impact the oceans by disturbing and destroying marine ecological systems. One recognized side effect of OIF is that it can significantly increase the chances of neurotoxin production.Ocean Geo-Engineering Produces Toxic Blooms of Plankton, PhysOrg.com, Mar. 15, 2010, http://www.physorg.com/print187896509.html [hereinafter PhysOrg.com]. The neurotoxins, in turn, can ascend the food chain and contaminate food webs on which marine life feed,Marshall, supra note 57. However, at least one expert questions the degree of harm posed by this alleged concern. “Harmful algal blooms (HABs) are blooms of algae that produce toxic substances that can affect other organisms. They are predominantly a coastal phenomenon and there is no evidence of such blooms arising from iron fertilization experiments. The algae associated with most coastal HABs are rare in the open ocean and are not associated with natural or iron fertilized blooms there.” Dr. Margaret Leinen, et. al., Why Ocean Iron Fertilization?, Climos, Mar. 12, 2009, http://www.climos.com/pubs/2009/Climos_Why_OIF-2009-03-12.pdf. which can lead to illness and mortality of thousands of marine mammals and birds along the coast of North America.PhysOrg.com 2010, supra note 58. Human mortality also may ensue from consuming seafood that contains the toxin. In addition, OIF also is likely to cause a lack of oxygen in non-surface waters resulting from the burgeoning growth of phytoplankton. The increased phytoplankton growth also prevents sunlight from reaching deep waters, which causes increased mortality rates of different organisms that may serve as a foundation for many ecosystems.Jennie Dean, Iron Fertilization: A Scientific Review with International Policy Recommendations, 32 Environs Envtl. L. & Pol’y J. 321, 330 (2009) In large-scale OIF projects, the changes in ecosystems can potentially cause local extinctions of certain species.Id. at 330-331. At the same time, OIF may also facilitate the introduction of invasive species because artificially introduced iron may contain unidentified microscopic organisms that can disrupt the marine ecosystems.Id. at 331. But see Leinin et al., supra note 59 (noting that many of the feared effects of OIF are limited to coastal waters and OIF experiments would be conducted in open ocean waters beyond national jurisdiction).

While the moral hazard and unintended consequences concerns have merit, the precautionary principle counterbalances these fears. The precautionary principle counsels that "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."Rio Declaration on Environment and Development, princ. 15, adopted June 14, 1992, 31 I.L.M. 874. Domestic and international protections against species extinction operate on this basis, as did the aggressive regulation of the stratospheric ozone depletion under the Montreal Protocol regime.See The Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 1522 U.N.T.S. 3 (entered into force Jan. 1, 1989). Similarly, scientists have posited a tipping point for climate change at which intervention strategies will be futile.See Juliet Eilperin, Debate on Climate Shifts to Issue of Irreparable Change; 
Some Experts on Global Warming Foresee ‘Tipping Point’ When It Is Too Late to Act, The Washington Post, Jan. 29, 2006, at A01. OIF and other geoengineering strategies arguably need to be researched and potentially deployed well in advance of reaching such a tipping point. The converse may be equally compelling, however. The precautionary principle could be used to support the conclusion that the potentially severe unintended consequences of OIF would weigh against immediate implementation of large-scale OIF.

The international community has confronted and overcome moral hazard and unsettled science concerns in other contexts, such as the regulation of genetic engineering under the Biosafety Protocol and the development and oversight of nuclear energy. If society is to advance and confront modern problems, the international community needs to remain flexible and innovative about how best to respond. No solution to climate change will please everyone or be without risk. Some commentators have suggested that the dangers posed by OIF simply require a careful and structured approach to continued research.For example, one commentator has called for the creation of a new U.S. agency to lead research initiatives on climate geoengineering techniques. See William Daniel Davis, What Does Going Green Mean?: Anthropogenic Climate Change, Geoengineering, and International Environmental Law, 43 Ga. L. Rev. 901, 938-950 (2009).

2. Governance Issues for OIF at the Domestic and International Levels

Unlike REDD, which is already incorporated into the governance structure for climate change in the Copenhagen Accord,See Copenhagen Accord, supra note 2, arts. 6, 8. the methods and framework for OIF governance are highly uncertain at this time. International governance of OIF is necessary for one or both of the following interrelated reasons: 1) OIF projects likely will occur outside any single country's 200-mile exclusive economic zone,Abate & Greenlee, supra note 41, at 572. and 2) transboundary impacts are likely to be involved.GAO Report, supra note 45, at 6.

OIF is potentially subject to a wide range of international environmental treaty mandates contained in the United Nations Convention on the Law of the Sea (UNCLOS), the London Convention and Protocol, the Convention on Biological Diversity, and the Antarctic Treaty regime. First, under UNCLOS, OIF may qualify as "pollution."Abate & Greenlee, supra note 41, at 573. Second, under the London Convention and Protocol, OIF could be considered "dumping."Id. at 578. Third, proposed OIF activities have targeted the Southern Ocean as a likely area for large-scale experiments. The Southern Ocean is strictly regulated by the Antarctic Treaty, the Madrid Protocol on Environmental Protection, and the Convention for the Conservation of Antarctic Marine Living Resources.Hugh Powell, Dumping Iron and Trading Carbon, 46 Oceanus Mag. 22, 23 (2008), available at http://www.whoi.edu/cms/files/OceanusIron_TradingCarbon_30866.pdf.

The CBD and the London Convention and Protocol treaty regimes have responded directly to the prospect of OIF regulation;See Convention on Biological Diversity (CBD), Scientific Synthesis of the Impacts of Ocean Fertilization on Marine Diversity. CBD Technical Series No. 45 (1981), available at http://www.cbd.int/doc/publications/cbd-ts-45-en.pdf (2009); Int’l Maritime Org. (IMO), Scientific Group of the London Convention, Ocean Fertilization: Development of Science Overviews on Ocean Fertilization, IMO Doc. LC/SG 33/2/1 (Mar. 5, 2010), available at http://www.imo.org/ includes/blastDataOnly.asp/data_id%3D27823/2-1.pdf. however, neither has implemented any binding treaty mandates on the issue. The International Maritime Organization (IMO), the implementing body for the London Treaty Convention and Protocol, held a meeting on March 5, 2010, that addressed the progress made on OIF science. IMO, supra note 74, at 1. The IMO mandated the assembly of a Correspondence Group to review the final text of the CBD report, "Scientific Synthesis on the Impacts of Ocean Fertilization on Marine Biodiversity," released in January 2010, to assess its adequacy and to provide recommendations.Id. Members of the Correspondence Group failed to reach consensus on whether this report adequately summarized the current state of scientific knowledge on OIF.Id. at 2. The Correspondence Group identified two gaps in the report. First, the report only focused on the potential impacts OIF may cause to marine diversity, rather than providing a comprehensive summary of the current state of knowledge on OIF.Id. Second, the Correspondence Group identified that the report lacked sufficient guidance for determining what level of impact to marine diversity is acceptable.Id. The Correspondence Group recommended that this second gap could be addressed by identifying upper and lower levels of potential impacts in individual sea areas that have been targeted for potential deployment of OIF projects, such as the Southern Ocean.Id. at 2-3. As of this writing, the Correspondence Group is working on a document that will provide a comprehensive report on the current state of knowledge on OIF, which is scheduled for release in April 2011.IMO, Scientific Group of the London Convention, Ocean Fertilization: Development of Science Overviews on Ocean Fertilization, 2, IMO Doc. LC/SG/ES.2/1 (July. 30, 2010), available at http://www.imo.org/includes/blastDataOnly.asp/data_id%3D29393/2-1.pdf.

To capitalize on the treaty regimes' growing awareness of the need to regulate OIF, these overlapping and potentially conflicting treaty mandates need to be reconciled. Precedent for harmonizing treaty objectives exists in international environmental law. For example, in the climate change context, the Kyoto and Montreal Protocol regimes are working together to address the regulation of hydrofluorocarbons (HFCs), an ozone-depleting substance and a potent greenhouse gas.Environmental Investigation Agency, A Climate Briefing: The Montreal Protocol Must Work in Collaboration with the Climate Talks to Regulate HFCs to Prevent Exacerbation of Global Climate Change While Restoring the Ozone Layer 2 (2008), available at http://www.eia-global.org/PDF/report—Climate—Jan09.pdf.  Similarly, in the OIF context, an inter-treaty body could be established to harmonize UNCLOS, CBD, and the London Convention and Protocol.Abate & Greenlee, supra note 41, at 589-91. The IMO could serve as the implementing body for such inter-treaty coordination.Id. at 590.

In the alternative, a new governance structure could be established in a separate treaty to evaluate new technologies. The Swedish Society for Nature Conservation developed such a proposal, the International Convention for the Evaluation of New Technologies, under which OIF and other new and emerging technologies could be assessed, monitored, and regulated.Diana Bronson et al., Swedish Society for Nature Conservation, Retooling the Planet? Climate Chaos in the Geoengineering Age 40-41 (2009), available at http://www.etcgroup.org/upload/publication/pdf_file/Retooling%20the%20Planet.final_.pdf. The proposal calls for the establishment of scientific committees that would identify and evaluate new technologies and support the diffusion of such new technologies once they are determined to be safe.Id. at 41. A narrower version of this proposal could involve a new treaty focused exclusively on assessing, monitoring, and regulating climate geoengineering strategies.

However, simply conducting OIF research is controversial.See IFM-GEOMAR, Ocean Iron Fertilization: A Curse or a Blessing?, Research In Germany, Dec. 23, 2009, http://www.research-in-germany.de/37230/2009-12-15-ocean-iron-fertilization-a-curse-or-a-blessing,sourcePageId=12370.html. One proposal emphasizes the establishment of a governance system for geoengineering research, in addition to a subsequent and separate governance system to oversee the deployment of such geoengineering techniques.GAO Report, supra note 45, at 14. Alternatively, geoengineering research could proceed under the direction of international research consortia. This approach was employed in the context of the Human Genome Project and the European Organization for Nuclear Research.Bracmort, supra note 44, at 38. Proceeding in this manner offers the benefits of precaution in applying emerging technologies while not complicating and constraining the need for expeditious research through a new or revised treaty regime.GAO Report, supra note 45, at 7.

In addition to the international governance challenges, any comprehensive federal climate change response in the United States also must address geoengineering regulation. Existing federal laws such as the Marine Protection, Research and Sanctuaries Act (MPRSA)See 33 U.S.C. §§ 1401-1445 (2006). and the National Environmental Policy Act (NEPA)See 42 U.S.C. §§ 4321-4370f (2006). may apply to OIF projects. These statutes have limited applicability, however, based on the party that is conducting the activityNEPA only applies to “major federal actions.” Id. at § 4332(2)(C). and the location where such activities take place.MPRSA only governs ocean dumping activities in U.S. territorial waters, which are defined as waters that extend twelve miles from shore. GAO Report, supra note 45, at 11-12.

Within the past two years, however, Congress has undertaken a formal evaluation, and response to the use, of OIF. Beginning in 2009, the Science and Technology Committee of the U.S. House of Representatives conducted hearings to consider the benefits and risks of a variety of climate geoengineering techniques, including OIF.Bracmort, supra note 44, at 2. In May 2010, Senators John Kerry and Joseph Lieberman introduced the American Power Act,See American Power Act (discussion draft), 111th Cong. (2010), available at http://kerry.senate.gov/imo/media/doc/APAbill3.pdf. the latest congressional initiative to address climate change, which included a proposed ban on the use of OIF.See Underwater Times, supra note 51; Steven J. Lutz, Iron Fertilization Out, Blue Carbon In, Blue Carbon Blog, May 27, 2010, http://bluecarbonblog.blogspot.com/2010/05/iron-fertilization-out-blue-carbon-in.html.

B. Generating and Accounting for Carbon Credits in OIF Projects

Another important dimension of OIF governance is whether, and in what manner, to incorporate OIF into a post-Kyoto climate change treaty as a market-based mechanism to generate credits for carbon sequestration. Tradable credits generated from the carbon dioxide sequestered from OIF projects could be part of a climate change compliance regime in much the same manner as avoided deforestation credits in REDD. If OIF is regulated under this market-based approach, the opportunity to draw on the prior successes of REDD could be optimized by allowing two forms of creative climate change compliance mechanisms to work together within the same treaty regime. This arrangement would build on the menu of flexible mechanisms to achieve compliance that are already available under the Kyoto Protocol: emissions trading, joint implementation, and the CDM.

Although some commentators have argued that forest conservation credits would not provide an adequate foundation for OIF credits under a post-Kyoto scheme,See, e.g., Christine Bertram, Ocean Iron Fertilization in the Context of the Kyoto Protocol and the Post-Kyoto Process, 38 Energy Pol’y 1130 (2010). these conclusions were premised on the application of the CDM compliance model to OIF.Id. at 1138. REDD serves as an effective bridge between the CDM and OIF in that it is more flexible than the CDM and enables broad-based participation through the use of avoided deforestation and forest degradation as a means to earn carbon credits. Unlike the CDM, REDD credits are not encumbered by requirements such as securing host party approval or promoting a host country's sustainable development.Id. Like REDD, OIF-generated carbon credits have the flexibility to be incorporated into a voluntary or mandatory post-Kyoto climate change compliance regime without having to adhere to the CDM requirements. However, OIF will be better positioned to enter these carbon markets after some of the implementation hurdles associated with REDD have been resolved.

Like REDD credits, OIF-generated carbon credits will be subject to the same basic requirements as other projects in the existing carbon markets under the Kyoto Protocol and the EU Emissions Trading System (EU-ETS).See European Commission Climate Action, EU Emissions Trading System (EU ETS), http://ec.europa.eu/clima/policies/ets/index_en.htm (last visited Dec. 9, 2010) [hereinafter EU Emissions Trading System]. Such projects must meet the following requirements: 1) monitoring and verification, 2) additionality, 3) permanence, and 4) avoiding leakage.See Powell, supra note 73.

First, OIF projects face the challenge of adequate monitoring and verification. Monitoring of phytoplankton blooms is conducted with satellite technology.Intergovernmental Oceanographic Commission, supra note 39, at 4. However, according to scientists who have been involved in past iron fertilization experiments, "adequate verification cannot yet be achieved with currently available observing capabilities."Id. at 8. Moreover, "satellites are unable to detect the amount of carbon that is re-released back into the atmosphere through phytoplankton respiration."Dean, supra note 61, at 328.Even if OIF carbon sequestration can be effectively monitored and verified, the costs of doing so could be prohibitive. Such financial barriers could make a viable market in OIF-generated carbon credits more difficult to achieve.

Next, assuming OIF project proponents will be able to overcome the challenges associated with monitoring and verification, these projects will probably satisfy the three remaining requirements. Additionality refers to the fact that OIF-generated carbon credits cannot derive from carbon reductions that would have occurred anyway in the absence of the financed project.Dr. Margaret Leinen, Building Relationships Between Scientists and Business in Ocean Iron Fertilization, 364 Marine Ecology Progress Series 251, 252 (2008). This requirement is easily met in the OIF context because carbon mitigation is the reason why OIF projects are undertaken. Christine Bertram, Ocean Iron Fertilization: An Option for Mitigating Climate Change?, 5 (Kiel Inst., Kiel Policy Brief No. 3, 2009), available at http://www.ifw-kiel.de/wirtschaftspolitik/ politikberatung/kiel-policy-brief/kiel_policy_brief_3.pdf. Carbon credits also must be permanent. That is, the carbon reductions must last for at least one hundred years in the forestry context. However, this standard may be modified for OIF projects.Leinen, Building Relationships, supra note 106, at 252-53.Avoidance of leakage “Leakage is the concept that if deforestation is halted in one project area, the market demands will simply shift deforestation to another unregulated area, thus nullifying the benefit of emissions reductions in the project area.” Abate & Wright, supra note 9, at 103. may pose more of a challenge for OIF project proponents in that they would have to account for fuel used to reach the site and any greenhouse gases generated as a result of the OIF project.Leinen, Building Relationships, supra note 106, at 253.

Additionally, voluntary markets are available.These voluntary markets now exist concurrently with mandatory markets, but in different regions of the world. Ideally, there will be a mandatory global carbon market that would be developed as an indispensable component of a post-Kyoto climate change treaty, which could include carbon credits generated from both REDD and OIF projects. However, OIF credits are less likely to fare well in these markets, because voluntary markets are not subject to strict regulations like the Kyoto and EU-ETS markets.See EU Emissions Trading System, supra note 101. Consequently, OIF-generated carbon credits could face a perception of illegitimacy in these markets because they are new and their accounting is more complicated than avoided deforestation credits.See Powell, supra note 73, at 24-25.

IV. Conclusion

OIF offers significant promise to follow REDD as a potential component of carbon markets in a post-Kyoto climate change regime. However, international governance challenges to regulate OIF in a consistent and effective manner must be addressed. Additionally, the use of OIF for private gain also needs to be more fully researched and accepted in the international community. While a contentious path is ahead, OIF offers the international community one piece of a solution to the carbon crisis that is worth exploring.

If the international community is governed by a mere patchwork of regional agreements employing voluntary or mandatory carbon markets in the post-Kyoto era, the absence of a coordinated international governance framework to manage OIF projects could be catastrophic to the marine environment because potentially dangerous OIF experiments could proceed without oversight. Therefore, if the international community fails to implement a post-Kyoto treaty, a new international treaty should be negotiated to regulate OIF and similar emerging technologies to ensure adequate protection of the environment. At a minimum, existing treaty obligations should be harmonized to govern OIF in an effective and consistent manner.

The use of OIF for private gain to generate carbon credits is unlikely to be viable in the near future, but it is a goal that will come closer to fruition if and when a global carbon credit system is in place for REDD activities. Even the most optimistic of outcomes for OIF will likely involve a period of postponed commercialization of the field until significant additional research can be conducted to assess the effectiveness and risks of OIF and the verifiability of OIF-generated carbon credits. REDD has already confronted some of these challenges and is making progress in overcoming them.

If the implementation obstacles to OIF can be overcome, the international community stands to gain a great deal from the carbon credits that can be generated from OIF, much like those generated from REDD. Such credits promote environmental protection benefits by sequestering carbon from the atmosphere. These credits also offer the flexibility to address global climate change regulation in a way that is more flexible and potentially effective to promote broad-based participation from both developed and developing nations in a post-Kyoto climate change regime.


†Associate Professor of Law, Florida A & M University College of Law. The author presented an earlier version of this paper on a panel at the 2nd Yale-UNITAR Conference on Environmental Governance and Democracy at Yale Law School on September 18, 2010. The author gratefully acknowledges the assistance of Carla Nadal, Nick Claridge, Ani Garibyan, Elliott Jung, Betty Kuo, and Jessica Brunson in preparing this article.

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