Research Handbook on Climate Disaster Law: Barriers and Opportunities 9781786430021, 9781786430038

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RESEARCH HANDBOOK ON CLIMATE DISASTER LAW

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RESEARCH HANDBOOKS IN CLIMATE LAW Series Editor: Jonathan Verschuuren, Tilburg University, the Netherlands This important and timely series brings together critical and thought-provoking contributions on the most pressing topics and issues within the field of climate law. The volumes in this significant series cover a wide array of the effects of climate change on such diverse fields as trade, human rights, energy, disasters, finance, and migration.  Each Research Handbook comprises specially-commissioned chapters from leading academics, and practitioners, as well as those with an emerging reputation and is written with a global readership in mind. Equally useful as reference tools or high-level introductions to specific topics, issues and debates, these Handbooks will be used by academic researchers, postgraduate students, practising lawyers and lawyers in policy circles. Titles in this series include: Research Handbook on REDD+ and International Law Edited by Christina Voigt Research Handbook on Emissions Trading Edited by Stefan E. Weishaar Research Handbook on Climate Change and Trade Law Edited by Panagiotis Delimatsis Research Handbook on Climate Change and Agricultural Law Edited by Mary Jane Angelo and Anél Du Plessis Research Handbook on Climate Change, Migration and the Law Edited by Benoît Mayer and François Crépeau Research Handbook on Climate Disaster Law Barriers and Opportunities Edited by Rosemary Lyster and Robert R.M. Verchick

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Research Handbook on Climate Disaster Law Barriers and Opportunities

Edited by

Rosemary Lyster Professor of Climate and Environmental Law, The University of Sydney Law School, Australia and Co-Director, Australian Centre for Climate and Environmental Law

Robert R.M. Verchick Gauthier-St. Martin Chair in Environmental Law, Loyola University New Orleans and Senior Fellow in Disaster Resilience Leadership, Tulane University, USA

RESEARCH HANDBOOKS IN CLIMATE LAW

Cheltenham, UK • Northampton, MA, USA

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© Rosemary Lyster and Robert R.M. Verchick 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2018931717

ISBN 978 1 78643 002 1 (cased) ISBN 978 1 78643 003 8 (eBook) Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

06

Copyright © 2018. Edward Elgar Publishing Limited. All rights reserved.

This book is available electronically in the Law subject collection DOI 10.4337/9781786430038

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Contents vii xiii

List of contributors Acknowledgements Introduction to the Research Handbook on Climate Disaster Law Rosemary Lyster and Robert R.M. Verchick

1

PART I  INTERNATIONAL LAW AND CLIMATE DISASTERS 1.

Wishful thinking? The governance of climate change-related disasters in the Anthropocene Tim Stephens

31

2.

The principle of common but differentiated responsibilities and respective capabilities in the international climate change regime Lavanya Rajamani

46

3.

The evolving nature of sovereignty in the context of climate change Christine Bakker

61

4.

International environmental law and climate disasters Jacqueline Peel

77

5.

Climate-induced displacement and climate disaster law: barriers and opportunities Rosemary Lyster and Maxine Burkett

97

Copyright © 2018. Edward Elgar Publishing Limited. All rights reserved.

PART II  PUBLIC LAW AND CLIMATE DISASTERS 6.

Governance principles and climate disasters: constitutional and administrative law issues Daniel A. Farber

7.

Disaster law and order Lisa Grow Sun

133

8.

Occupational health and safety law Sidney Shapiro and Katherine Tracy

148

117

PART III  ENVIRONMENTAL LAW AND CLIMATE DISASTERS 9.

Adaptive law Craig Anthony (Tony) Arnold

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vi  Research handbook on climate disaster law 10.

Planning for climate change disaster Robert R.M. Verchick

187

11.

Building and construction law Teresa Parejo-Navajas and Michael B. Gerrard

200

12.

The uneasy case for disaster buyouts Susan S. Kuo

235

13. Water law and climate disasters Robin Kundis Craig

250

14.

Protecting the power grid from climate disasters Rosemary Lyster and Robert R.M. Verchick

267

15.

The law of the polar bear John Copeland Nagle

285

16.

Agriculture, climate disasters, and the law Jonathan Verschuuren

297

PART IV  PRIVATE LAW AND CLIMATE DISASTERS 17. Tort law and normative rupture R. Henry Weaver and Douglas A. Kysar

315

18.

Climate change and property law John D. Echeverria

332

19.

Private law and climate disasters: insurance law Michael Faure and Qihao He

348

20.

Climate change and fiduciary investors: weathering a disaster scenario M. Scott Donald

366 381

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Index

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Contributors Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, Louisville, KY, USA, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs, and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Christine Bakker, PhD, is a Research Associate at LUISS Guido Carli University, Rome, and a Visiting Lecturer at the University of Rome-3, specializing in human rights law including children’s rights, and international environmental law and climate change. She has published widely in these fields, and has, inter alia, co-edited with Francesco Francioni, the book The EU, the US and Global Climate Governance (Ashgate Publishing, 2014). She also carried out research for the Unicef Innocenti Research Centre in Florence, and previously worked at the European Commission (DG Development) in Brussels, and as a research fellow at the European University Institute, Academy of European Law, in Florence.

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Maxine Burkett is a Professor of Law at the William S. Richardson School of Law, University of Hawaiʻi, and a Global Fellow at the Woodrow Wilson International Center for Scholars. An expert in the law and policy of climate change, she has presented her work on diverse areas of climate law throughout the United States and in West Africa, Asia, Europe, and the Caribbean. Her work has been cited in numerous news and policy outlets, including BBC Radio, the ABA Journal, The New York Times, and Nature Climate Change. From 2009 to 2012, Professor Burkett also served as the inaugural Director of the Center for Island Climate Adaptation and Policy (ICAP). Professor Burkett received her B.A. from Williams College and Exeter College, Oxford University, and received her law degree from the University of California, Berkeley. She was a 2016 recipient of Williams College’s Bicentennial Medal for distinguished achievement. John Copeland Nagle is the John N. Mathews Chair at the University of Notre Dame. He is the author of Law’s Environment: How the Law Affects the Environment (Yale University Press, 2010). His latest two book projects are America the Beautiful: The Scenic Value of Our National Parks, and Making Environmental Law Humble: The Relationship Between God’s Creation and Our Laws. His other writings have explored such topics as the scope of congressional power to protect endangered species; the relationship between environmental pollution, cultural pollution, and other kinds of “pollution;” and alternative approaches to campaign finance reform. Nagle teaches courses related to environmental law, legislation, property, and torts. In 2002, he received a Distinguished Lectureship award from the J. William Fulbright Foreign Scholarship Board to teach environmental law and property law at the Tsinghua University School of Law in Beijing. He received another Fulbright award to serve on the faculty of law of the University of Hong Kong in 2008. Nagle has lectured on environmental issues at numerous forums in the United States, Canada, China, England, Hungary, Ireland, Malaysia, Scotland, and Antarctica.

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viii  Research handbook on climate disaster law M. Scott Donald is Deputy Director of the Centre for Law, Markets and Regulation at UNSW Australia and a member of the UNSW Law Faculty. His research spans the legal, regulatory and governance issues surrounding the management of institutional ­investment portfolios including pension (superannuation) funds and mutual funds. John D. Echeverria is a Professor of Law at Vermont Law School. Prior to joining the Vermont Law School faculty, he served as Executive Director of the Georgetown Environmental Law & Policy Institute at Georgetown University Law Center. He also was General Counsel of the National Audubon Society and General Counsel and Conservation Director of American Rivers, Inc., and was an Associate for four years in the Washington, D.C. office of Hughes, Hubbard & Reed. He served as law clerk to the Honorable Gerhard A. Gesell of the U.S. District Court for the District of Columbia. In addition to teaching at Vermont Law School, Professor Echeverria has been a Visiting Professor at Harvard Law School and Georgetown University Law Center. Professor Echeverria received a JD degree from the Yale Law School, and received a Master’s degree from the Yale School of Forestry and Environmental Studies as well as a BA degree from Yale College (summa cum laude).

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Daniel A. Farber is the Sho Sato Professor of Law at the University of California, Berkeley, where he is also the Co-Director of the Center for Law, Energy, and the Environment. Many of his 200 law review publications involve environmental law, and much of his recent work focuses on climate change. He has been a co-author on a leading American environmental law casebook for over 30 years, as well as authoring or co-authoring five other books on environmental law and related topics. He is also a co-author of the primary U.S. textbook on Disaster Law. He was a contributing author to the Fifth Assessment of the Intergovernmental Panel on Climate Change. Michael Faure became academic director of the Maastricht European institute for transnational legal research (METRO) and Professor of Comparative and International Environmental Law at the Law Faculty of Maastricht University in September 1991. He still holds both positions today. In addition, he is academic director of the Ius Commune Research School and member of the board of directors of the European Centre of Tort and Insurance Law. Since 2008 he has held part-time positions as Professor of Comparative Private Law and Economics at the Rotterdam Institute of Law & Economics (RILE) of the Erasmus University in Rotterdam and as academic director of the European Doctorate in Law and Economics (EDLE) programme. He has been an attorney at the Antwerp Bar since 1982. Professor Faure publishes in the areas of environmental (criminal) law, tort and insurance, and economic analysis of (accident) law. Michael B. Gerrard is Andrew Sabin Professor of Professional Practice at Columbia Law School, where he teaches courses on environmental and energy law and directs the Sabin Center for Climate Change Law. He is also Chair of the Faculty of Columbia’s Earth Institute. Before joining the Columbia faculty in January 2009, he practiced environmental law in New York City full time from 1979 to 2008. He formerly chaired the American Bar Association’s 10,000-member Section of Environment, Energy and Resources. He has served as a member of the executive committees of the boards of the Environmental Law Institute and the American College of Environmental Lawyers. Gerrard is author

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Contributors  ix or editor of 11 books, two of which were named Best Law Book of the Year by the Association of American Publishers. Lisa Grow Sun graduated from Harvard Law School summa cum laude, the first woman ever to do so and the first person to do so in 15 years. After law school, she clerked for the Honorable J. Michael Luttig, United States Court of Appeals for the Fourth Circuit, and then for the Honorable Justice Anthony M. Kennedy, United States Supreme Court. Following her clerkships, Professor Sun was a Lecturer in Law at Stanford Law School and then taught as a Visiting Professor in the Temple/Tsinghua University Masters in Law Program in Beijing. Professor Sun now teaches disaster law, constitutional law, and torts at the J. Reuben Clark Law School at Brigham Young University. Her research centers on the intersection of law and natural disasters. She is a coauthor of the definitive disaster law textbook, Disaster Law and Policy, with Dan Farber, Jim Chen, and Rob Verchick. Her scholarship has also appeared in a number of law journals, including the Cornell, UCLA, and Notre Dame Law Reviews.

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Qihao He is Associate Professor of China University of Political Science and Law (CUPL) in Beijing. He is also Consultant to Beijing, Xicheng District People’s Court (2017–2019) and was Visiting Professor at the University of Zagreb in Croatia (April–May, 2017). He received his S.J.D. & LL.M. degree in Insurance Law with honors from the University of Connecticut School of Law in 2016 & 2012 respectively. He also studied at the University of Pennsylvania Law School (2014–15) and Boston College Law School (2015–16) as the visiting scholar. Previously, he studied at the University of International Business and Economics (UIBE) in Beijing, China, where he earned both his master’s degree and bachelor’s degree in law. Robin Kundis Craig is the James I. Farr Professor of Law at the University of Utah S.J. Quinney College of Law in Salt Lake City, Utah, where she is also affiliated faculty of the College of Law’s Wallace Stegner Center for Land, Resources, and the Environment and the University’s Global Change and Sustainability Center; she also serves on the Executive Board of the University of Utah’s new Water Center. Professor Craig specializes in: the relationships between climate change and water; water and energy; the Clean Water Act; the intersection of water issues and land issues; marine biodiversity and marine protected areas; water law; and the relationships between environmental law and public health. She is the author, co-author, or editor of 11 books, including The End of Sustainability (Kansas University Press, 2017), Comparative Ocean Governance: Place-Based Protections in an Era of Climate Change (Edward Elgar Publishing, 2012), The Clean Water Act and the Constitution (ELI 2nd ed., 2009), Environmental Law in Context (Thomson/West 4th ed., 2016), Toxic and Environmental Torts (Thomson/ West, 2010), and Modern Water Law (Foundation Press, 2013). She has also written or co-written over 100 law review articles and book chapters. Professor Craig is an elected member of the American Law Institute and a member of the IUCN’s World Commission on Environmental Law. She has served on five National Academy of Sciences Committees. Professor Craig is also active in the American Bar Association’s Section on Environmental, Energy, and Resources and the Rocky Mountain Mineral Law Foundation. At the University of Utah, she teaches Environmental Law, Water Law, Ocean & Coastal Law, Toxic Torts, and Property.

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x  Research handbook on climate disaster law Susan S. Kuo is a Professor of Law at the University of South Carolina School of Law and an affiliated researcher with the Hazards and Vulnerability Research Institute. Her research focuses on disaster law and policy. Douglas A. Kysar is the Joseph M. Field ’55 Professor of Law at Yale Law School. His teaching and research areas include torts, environmental law, climate change, products liability, and risk regulation. Rosemary Lyster is Professor of Climate and Environmental Law in the University of Sydney Law School and Co-Director of the Australian Centre for Climate and Environmental Law. In 2015, Rosemary was appointed by the Victorian government to a three-person Independent Review Committee to review the state’s Climate Change Act 2010 and make recommendations to place Victoria as a leader on climate change. This resulted in the Climate Change Act 2017 (Vic) being enacted. In 2013, Rosemary was appointed a Herbert Smith Freehills Visiting Professor at Cambridge Law School and was a Visiting Scholar at Trinity College, Cambridge in 2009 and in 2014. In the area of Environmental Law, Professor Lyster specializes in Energy and Climate Law, Climate Justice and Disaster Law, and Water Law. She has published widely in these areas, including four books with Cambridge University Press in the area of Climate Law, the latest of which is Climate Justice and Disaster Law (Cambridge University Press, 2016). She is also the principal author of Rosemary Lyster, Zada Lipman, Nicola Franklin, Graeme Wiffen, Linda Pearson, Environmental and Planning Law in New South Wales (4th ed., Federation Press, 2016). Rosemary is the Energy and Water Special Editor of the Environmental and Planning Law Journal, which is the leading environmental law journal in Australia.

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Teresa Parejo-Navajas is an Associate Professor of Administrative Law at Carlos III University (Madrid, Spain), LLM on EU Law, and member of the Pascual Madoz Institute of Spatial Planning, Urbanism and Environment, in Spain. She has published two books and numerous articles on the environmental and spatial planning fields, in Spanish and international journals. She has been a visiting scholar with the Sabin Center for Climate Change Law (Columbia University) and in various European and US Universities, such as Università di Bologna (Italy), Oxford University (UK), Fordham University (NYC, US) and Pace University. Jacqueline Peel is a Professor of Law at Melbourne Law School, University of Melbourne in Australia. Her teaching and research interests lie in the field of international environmental law and climate law. She is the author of several books and numerous articles on these topics, including an edited collection, with David Fisher, on The Role of International Environmental Law in Disaster Risk Reduction and Principles of International Environmental Law with Philippe Sands. Jacqueline has also held several international professional roles in the environmental field, including co-chair of the International Environmental Law interest group at ASIL, Secretary and Executive Council member of ANZSIL, member and Acting Rapporteur of the ILA Committee on Legal Principles Relating to Climate Change, and a member of the IBA Working Group on a Model Statute on Legal Remedies for Climate Change. Lavanya Rajamani is Professor at the Centre for Policy Research, New Delhi. Lavanya is an expert in the field of international environmental and climate change law. Her schol-

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Contributors  xi arship focuses on multilateral environmental treaty-making processes, differentiation, compliance, and the intersections of international environmental law with human rights. She has authored several books and articles in these areas. Her latest book is International Climate Change Law (OUP, 2017, co-authored with Daniel Bodansky and Jutta Brunnée). Professor Rajamani served as Rapporteur of the ILA Committee on Legal Principles Relating to Climate Change and is a member of the IBA Working Group on a Model Statute on Climate Relief. She has also served as a consultant to the UNFCCC Secretariat several times, a negotiator for the Alliance of Small Island States, and a legal adviser to the Chairs of Ad Hoc Working Groups under the FCCC. She was part of the UNFCCC core drafting and advisory team for the Paris Agreement. She has a D.Phil. and B.C.L. from Oxford, an LL.M. from Yale, and a B.A.LL.B. (Hons) from the National Law School of India. Sidney Shapiro has written 10 books, contributed chapters to seven additional books, authored or coauthored over 55 articles, and is currently working on a book on administrative expertise. He has been a consultant to government agencies and has testified before Congress on regulatory subjects. He is the Vice-President of the Center for Progressive Reform, a nonprofit research and educational organization of university-affiliated academics.

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Tim Stephens is Professor of International Law and Australian Research Council Future Fellow at the University of Sydney. He is President of the Australian and New Zealand Society of International Law. Professor Stephens teaches and researches in public international law, with his published work focusing on the international law of the sea, international environmental law and international dispute settlement. His major works include The International Law of the Sea (Hart, 2nd ed., 2016) with Donald R. Rothwell and International Courts and Environmental Protection (Cambridge University Press, 2009). His ARC Future Fellowship research project is examining the implications of the Anthropocene for international law. Professor Stephens has a PhD in law from the University of Sydney, an M.Phil in geography from the University of Cambridge, and a BA and LLB (both with Honours) from the University of Sydney. Katherine Tracy is a Policy Analyst at the Center for Progressive Reform (CPR) in Washington, DC. She received her law degree from American University Washington College of Law in 2012. Her current research interests include state prosecutions of federal regulatory crimes, occupational exposure to toxic chemicals, and equitable strategies for addressing climate impacts on workers and communities. Robert R.M. Verchick is a Visiting Professor at Yale University (2018) and holds the Gauthier-St. Martin Chair in Environmental Law at Loyola University New Orleans. He is also a Senior Fellow in Disaster Resilience at Tulane University and President of the Center for Progressive Reform. In 2009 and 2010, Professor Verchick served in the Obama administration as Deputy Associate Administrator for Policy at the U.S. Environmental Protection Agency. In that role he helped develop climate adaptation policy for the EPA and served on President Obama’s Interagency Climate Change Adaptation Task Force. He is an author of three books, including the award-winning Facing Catastrophe: Environmental Action for a Post-Katrina World (Harvard University Press, 2010).

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xii  Research handbook on climate disaster law Jonathan Verschuuren is a Professor of International and European Environmental Law at Tilburg University, the Netherlands and extra-ordinary Professor at North West University, South Africa. He is or has been visiting faculty at a range of universities across the world, including the Universities of Connecticut, Leuven, Malta and Sydney. In 2015 he received a prestigious Marie Sklodowska Curie fellowship under the EU Horizon 2020 research programme, and in 2017 he was the recipient of the IUCN Academy of Environmental Law senior scholarship prize. His current research focuses on the climate change–agriculture–food security nexus. He is the editor of the Edward Elgar Climate Law Research Handbook series as well as member of the board of editors of such journals as the South African Journal of Environmental Law and Policy and the Journal of Human Rights and the Environment.

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R. Henry Weaver is a 2018 graduate of Yale Law School. His research interests center on the relationships between adjudication, social movements, and democracy. His litigation work focuses on the intersection of environmental, racial, and economic justice. He has worked at Earthjustice and the Appalachian Citizens’ Law Center. Henry graduated from Amherst College in 2013 with a degree in mathematics.

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Acknowledgements The phrase Climate Disaster Law was first used by Rosemary Lyster in her book Climate Justice and Disaster Law (Cambridge University Press, 2016). This book expanded the notion of Disaster Law to climate disasters. It built upon the work of other legal academics like Daniel A. Farber, Michael Faure, Robert R.M. Verchick and Lisa Grow Sun, who, following Hurricane Katrina and the events of 9/11 in the United States, established a new area of legal academic endeavour — Disaster Law. This edited collection takes the idea of Climate Disaster Law much further to investigate how it applies to four discrete areas of the law — International Law, Public Law, Environmental Law and Private Law. Rosemary Lyster and Rob Verchick are deeply indebted to the many outstanding academics who have been persuaded to contribute their discrete expertise to consider the unique challenges, barriers, and opportunities which climate disasters pose for law and policy at the international and domestic levels. This collection marks a destination along the way in the development of Climate Disaster Law scholarship and provides a pathway for understanding how the law can, and should, adapt and respond to climate disasters. Rosemary Lyster acknowledges the University of Sydney Law School, which has supported and sustained her Climate Law research and teaching over the past 22 years. Rosemary is very appreciative of the support which her partner, Mark Lyster, has given her in bringing all of her writing projects to fruition. Her children, Kathryn and Matthew, who are building their own careers and who are deeply committed to animal and social justice, are a constant source of inspiration. Her extended family and friends have also been generous with their encouragement and tolerant of her many absences. No-one has been more instrumental to Rosemary’s research and writing over the past 14 years than her researcher, Chris Cain, who has been a diligent and devoted collector, and reader, of the vast array of materials upon which she has relied. Her efforts always go way beyond the call of duty. Thank you, Chris. Rob Verchick thanks his lucky stars for the energy and grounding he gets from his family — his wife, Heidi Molbak, and his three sensitive, creative, and hardworking sons, Reed, Ty, and Luke. In addition, he is grateful for the encouragement and support of Dean Madeleine Landrieu of Loyola New Orleans College of Law and to Stephanie Russell, faculty assistant extraordinaire, who helped with research, correspondence, and keeping the pots from boiling over. For excellent research assistance throughout, Rob would like to thank Allison Sickle, Ben Simpson, Kirsten Valandra, and Madeline Voitier, all students or former students headed for rewarding and meaningful careers. For financial support Rob acknowledges the Louisiana Board of Regents Endowed Chairs for Eminent Scholars Program. Also, he is grateful to the people of New Orleans, who give meaning to this work every day. Finally, our thanks go to Ben Booth, Laura Mann, Iram Satti and David Fairclough

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xiv  Research handbook on climate disaster law

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at Edward Elgar for their foresight, patience, assistance, and guidance with bringing this book to completion and ultimately to publication. Rosemary Lyster Robert R.M. Verchick October 2017

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Introduction to the Research Handbook on Climate Disaster Law Rosemary Lyster and Robert R.M. Verchick

Why Climate Disaster Law and what is it? Building on the work of other Disaster Law scholars,1 Climate Disaster Law2 applies to disasters which are climate related and means a portfolio of legal rules which deal with: prevention, emergency response, recovery and rebuilding, and compensating victims. The Intergovernmental Panel on Climate Change (IPCC) defines climate disasters as: severe alterations in the normal functioning of a community or a society due to hazardous physical events interacting with vulnerable social conditions, leading to widespread adverse human, material, economic, or environmental effects that require immediate emergency response to satisfy critical human needs and that may require external support for recovery.3

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The IPCC’s 2013 Working Group I Fifth Assessment Report,4 and the 2012 Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (SREX)5 evaluate how hazards, like natural climate variability and anthropogenic climate change, influence the climate extremes that contribute to disasters when they intersect with the exposure and vulnerability of human society and natural ecosystems to these extremes. Although the IPCC states that attribution of changes in individual climate events to anthropogenic forcing is complicated,6 there is sufficient evidence to suggest that climate extremes such as heat waves, record high temperatures and, in many regions, heavy precipitation have changed due to climate change in the past half century. Climate disasters can also result from a series of non-extreme events which occur in combination with social vulnerabilities and exposure to risks.7 The IPCC is careful to explain that there is not a “one-to-one” relationship between extreme weather events and disasters. Rather, extreme events will lead to disaster “if: 1   For publications on Disaster Law see, e.g., Daniel A. Farber, James Ming Chen, Robert R.M. Verchick, & Lisa Grow Sun, Disaster Law and Policy (2015); Disaster Law (Daniel A. Farber & Michael G. Faure eds., 2010). 2   For the first-ever use of this term and an extensive discussion of it see Rosemary Lyster, Climate Justice and Disaster Law (2015). 3   IPCC, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation. A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change 33 (C.B. Field, et al. eds., 2012), available at https://www.ipcc.ch/pdf/ special-reports/srex/SREX_Full_Report.pdf. 4   See IPCC, Climate Change 2013: The Physical Science Basis. Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Thomas F. Stocker, et al. eds. 2013), available at https://www.ipcc.ch/report/ar5/wg1/. 5   IPCC, supra note 3. 6   IPCC, supra note 4, at 368. 7   Id.

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2  Research handbook on climate disaster law 1) communities are exposed to those events; and 2) exposure to potentially damaging extreme events is accompanied by a high level of vulnerability (a predisposition for loss and damage).”8 The resilience of people exposed to extreme events can be increased if policies to avoid, prepare for, respond to, and recover from the risks of disaster are adopted. However, when thresholds or tipping points associated with social and/or natural systems are exceeded, limits to resilience will be reached, posing severe challenges for adaptation. In any case, the escalating impacts associated with extreme weather events are due to several factors, including climate change, the growth of urban development and population density in exposed areas, and a higher concentration of assets and values at risk.9 However, the IPCC acknowledges with high confidence that economic losses from weather- and climate-related disasters have increased, although with large spatial and inter-annual variability.10 The likelihood of future extremes has been dealt with comprehensively by the IPCC in two major reports: the 2012 Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation11 and Working Group II’s Fifth Assessment Report entitled Climate Change 2014: Impacts, Adaptation and Vulnerability.12 These reports evaluate the risks of climate change for human and natural systems and how they can be managed through adaptation and mitigation. But in a 2017 paper published by the U.S. National Academy of Sciences, Yangyang Xu and Veerabhadran Ramanathan are circumspect about whether the Paris Agreement will be successful in limiting global temperature rise to “well below 2°C,” given the many uncertainties in emissions scenarios, climate, and carbon cycle feedback.13 This leads them to interpret the Paris Agreement in terms of three climate-risk categories and bring in considerations of low-probability (5 percent) high-impact (LPHI) warming in addition to the central (50 percent probability) value. The authors define warming scenarios as follows: >1.5°C as dangerous; >3°C as catastrophic; and >5°C as unknown, implying beyond catastrophic, including existential threats. With unchecked emissions, the warming has a 50 percent probability of reaching dangerous levels (>1.5°C), with the LPHI warming becoming catastrophic (>3°C) by 2050. Within eight decades, the warming has a 50 percent probability of subjecting the global population to catastrophic (>3°C) unknown risks (>5°C) and a 5 percent probability of being fully in the unknown risk category, which also includes existential threats for everyone. These scenarios suggest that emissions of CO2 and short-lived climate pollutants (SLCPs) (methane, tropospheric ozone, black carbon, and hydrofluorocarbons (HFCs)) should peak immediately and trend downward by 2020. Aggressive policies will be required to achieve carbon neutrality

  Id.   Alberto Monti, Climate Change and Weather-related Disasters: What Role for Insurance, Reinsurance and Financial Sectors?, 15 Hastings West and Northwest J. of Envtl L. & Pol’y 151 (2009). 10   IPCC, supra note 3, at 269. 11   Id. 12   IPCC, Summary for Policymakers, in IPCC, supra note 3. 13   Yangyang Xu and Veerabhadran Ramanathan, Well Below 2°C: Mitigation Strategies for Avoiding Dangerous to Catastrophic Climate Changes, Proc. of the Nat’l Acad. of Sci. (2017), available at http://www.pnas.org/content/early/2017/09/14/1618481114.full#ref-30. 8 9

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Introduction  3 and climate stability. The authors recommend a three-lever strategy to limit the central warming below the dangerous level and the LPHI below the catastrophic level, both in the near term (