Sunday, June 10, 2012

Is Climate Adaptation Only About Environmental Justice?

"Environmental justice" is an important advocacy movement of environmental law scholars focused on the distribution of environmental costs and benefits among what the Supreme Court referred to, in its famous Footnote 4 of Caroline Products, as "discrete and insular minorities," which are most likely to be harmed by majoritarian bias in legislative processes.

This morning I attended a conference-session on climate change adaptation, which "environmental justice" advocates dominated ("high-jacked" would be too strong a word). The session focused almost entirely on domestic issues relating to the poor and minorities in the US, even though adaptation is a far more pressing concern for far greater numbers in developing countries. The discussion following the presentations devolved into a strategy session for how "environmental justice" advocates could "leverage" climate adaptation issues to increase federal funding to the groups they represent.

I recognize that disadvantaged groups in the US will suffer climate adaptation-related costs, but it is equally clear that the US possesses a level of adaptive capacity where it is at least possible to "leverage" their claims into greater financial assistance. That is not true in many developing countries that lack any significant level of adaptive capacity, mainly because their per capita income levels are so low and their economies are so heavily reliant on agriculture and other climate-sensitive industries. I was very disappointed that none of the panelists, or the audience for that matter, seemed very concerned about the need to build adaptive capacity in developing countries around the world.

I appreciate that, unlike me, many of my colleagues in environmental law are "advocate-scholars." Their scholarship is aimed at achieving certain substantive and distributional outcomes through environmental law and policy decisions. Such "advocate-scholars" have a long and honorable tradition in the legal academy, not only in environmental protection but also in fields such as civil rights and housing law. That said, I think it would be nice, and even productive, if such scholars could at least occasionally cabin their myopic distributional focus to think about social-cost problems from a broader social-welfare perspective. They might even find that a social-welfare approach actually could promote the interests for which they advocate.

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