Adapting Private Law for Climate Change Adaptation
70 Pages Posted: 18 Oct 2022 Last revised: 21 Oct 2022
Date Written: October 11, 2022
The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.
To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common law doctrines in climate adaption disputes has not yet taken off the way that the wave of high-profile lawsuits against sources of emissions causing climate change has, but it is inevitable that it will, making it ripe for attention in legal scholarship. The Article begins in Part I by highlighting several features of climate change and adaptation that will place inevitable disruptive pressure on existing doctrines and principles of private law. The new normal of climate change questions some key factual predicates embedded in private law doctrine. For example, climate change is radically moving the long-stable upper and lower extremes of multiple biophysical conditions (what scientists call “nonstationarity”), meaning individuals increasingly will be unable to accurately predict the future based entirely on past data (what scientists call the “no-analog future”).
Private law nonetheless must operate in a manner that provides practical and meaningful guidance to stakeholders, which will require it to confront the new realities presented by climate adaptation, including how private individuals and entities can no longer predict the future in the same ways that they have in the past. In Part II the Article identifies a series of evaluative guideposts to help assess when changes to doctrines and principles of private law may be needed to address impending climate adaptation disputes arising in this novel and dynamic future.
Private law’s basic architecture helps to define and manage relationships, clarify responsibilities, and provide remedies for harm—a tripartite framework we use in Part III to unravel a few key doctrinal pressure points that private law faces as it addresses a novel set of impending climate change adaptation claims. The principle of foreseeability—central to numerous doctrines that define relationships, responsibilities, and remedies across tort, property, and contract law—is likely to face some of the strongest pushback as we confront climate adaptation. We propose a “foreseeability of nonstationarity” principle and evaluate what that might mean for some core private law doctrines. This points towards expansion of the scope of obligations private law recognizes for various actors within their adaptation footprints. Existing private law principles can address wrongfulness even in the no-analog future of climate adaptation, and nonstationarity necessitates an expansion of strict liability for private law. However, it is important that private law defenses recognize the nonstationary of climate risks, as well as the lack of an analog future available to predict and address the harmful effects of climate change.
We conclude that private law can and will adapt to climate change. This process will be central to providing guidance as individuals, businesses, and other private actors confront new risks and harms as society adapts to a new natural world. But the path of private law’s adaption matters, and how it approaches key principles such as foreseeability will be central to its capacity to provide meaningful guidance for private stakeholders adapting to the realities of climate change.
Keywords: Private law, climate change adaptation, contracts, torts, property, nonstationarity
Suggested Citation: Suggested Citation