Future, Tense

In the wake of Superstorm Sandy, upper-year students at Columbia Law School are working with scientific experts and governments near and far to ensure that the city, country, and world are more prepared for the climate- and weather-related disasters of the future

By Alexander Zaitchik

Fall 2013

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When Superstorm Sandy made landfall this past October, inundating lower Manhattan and devastating coastal areas throughout the Northeast, it left aftershocks that have outlasted the headlines about wrecked homes, destroyed gas lines, and flooded streets. As much as the 117 lives it claimed, the historic 900-mile-wide storm will be remembered for effects not immediately evident in the chaos and suffering caused by its collision with the tri-state area.

Eleven months later, the storm’s most important legacy is a shift in climate consciousness. Sandy left in its wake an acute awareness—among the public, inside corporate executive suites, and under rotundas in D.C. and Albany—that a “new normal” has arrived, requiring different and more urgent modes of planning for, and thinking about, extreme weather, ones requiring large investments in everything from updating zoning codes to preserving wetlands.  

This new openness to hardening, rezoning, and relocating infrastructure in anticipation of climate change, known as “adaptation planning,” is a welcome but not unexpected shift for Professor Michael B. Gerrard, Columbia Law School’s Andrew Sabin Professor of Professional Practice and director of the Center for Climate Change Law. Gerrard, who trains upper-level students in cutting-edge adaptation-related legal work each semester via his seminars and center projects, had been theorizing about and advocating for adaptation planning since long before the post-Sandy media picked up on buzzwords like “coastal retreat” (the technical term for abandoning vulnerable coastal areas to rising seas). He has long been regarded as perhaps the world’s leading environmental legal theorist working in the future climate tense. And the students Gerrard works with learn from top climate scientists, expert practitioners, and leaders in international efforts to address climate change. 

“It’s been clear for some time that climate change poses exceedingly complex legal challenges,” says Gerrard, a former chair of the American Bar Association’s section of environment, energy, and resources. “The idea behind the center is to prepare our students to be leaders in effecting and implementing the [new thinking and new laws] that these challenges will require.”

Gerrard, and the scores of Columbia Law School students who work with him, are not sitting around waiting for the requisite political will necessary to pass sweeping legislation. They are at the forefront of municipal, state, national, and international efforts to prepare the legal groundwork for litigating in what scientists predict will be a century of rising temperatures and sea levels. In New York, Gerrard and the center are contributing to the city’s and state’s early adaptation efforts—nudging, guiding, and sometimes drafting adaptation legislation.

“A few years ago, I became a member of the Sea Level Rise Task Force created by the state legislature,” says Gerrard. “We issued our report in late 2010, but the recommendations just sat there. At the urging of a lawmaker, I enlisted one of our students working on flooding and sea level rise, Katee Kline ’14, to write legislation [that mandates] adaptation planning by state agencies. It’s too early to say whether I expect it to pass. It might be opposed by real estate interests, which could be concerned that designating certain areas as flood hazard areas would lower their value.”

Columbia Law School students are also engaged in efforts to help state agencies and private utilities begin planning for climate change–related stresses on New York’s grid. For example, this past year the center submitted a petition to the New York Public Service Commission that would require utilities to prepare climate adaptation plans. It also intervened in a rate proceeding involving Con Edison, which has proposed spending $1 billion during the next four years. “We’re not sure Con Ed has allocated enough, or that they’re putting [the money] in the right place,” says Gerrard. “Climate change isn’t just about hurricanes. It’s also about inland storms and heat waves that have a major impact on electrical systems. What Con Ed does will [set a] precedent for other utilities regulated by the Public Service Commission.”

As climate change is a quintessentially global crisis, the Center for Climate Change Law’s vision is necessarily global in scope. Gerrard has co-edited (with Katrina Fischer Kuh) the first comprehensive book on adaptation law, The Law of Adaptation to Climate Change: United States and International Aspects. He has also linked the center with several small island countries of the Pacific that already face existing threats from rising seas caused by climate change. “Threatened nations must prepare themselves legally for a future without habitable territory,” says Gerrard.

To address the legal questions at the heart of their crisis—where are the populations to be relocated? Who is responsible for the relocation process?—the center recently hosted a conference co-sponsored by the government of the Marshall Islands. That country is dealing with the possibility of having to completely evacuate its population due to rising seas, and Columbia Law School students have drafted a treaty to coordinate the climate efforts of several small island nations in the South Pacific facing similar threats. These efforts, explains Gerrard, involve “diplomatic and political steps each nation [can] pursue to strengthen its legal standing into the future.” The center also keeps a close eye on high-level international climate negotiations. In 2010, it sent third-year student Claire Woods ’11 to observe and report back on the U.N. negotiations in Cancun, a major event on the U.N. climate calendar that brought together the parties to the Kyoto Protocol. 

The new field of adaptation law, whether at the local or international level, requires extrapolating from a body of established environmental law. “There are no adaptation statutes,” explains Gerrard. “But there are existing laws that can be used to encourage adaptation efforts—both U.S. environmental laws and international environmental policy. For example, the Endangered Species Act is relevant. The Law of Adaptation looks at how insurance, agriculture, and forestry laws apply, and asks, ‘What new laws do we need that don’t yet exist?’ We’ve been pushing for the approval process for new infrastructure to explicitly think about how to mitigate risks from climate change. If you’re planning a highway or sewer, how do you design it so that it can withstand [climate pressures]?”  

Partnering with the Center for Climate Change Law on much of its work is the Environmental Law Clinic, which is run by Edward Lloyd, the Law School’s Evan M. Frankel Clinical Professor in Environmental Law, and Lecturer-in-Law Susan J. Kraham.

A former executive director of the New Jersey Public Interest Research Group, Lloyd brings the perspective of grassroots organizing and advocacy to joint projects of the center and the clinic. His students draft amicus briefs in climate-related lawsuits and help write government advisory documents. Students participating in the clinic are currently working with the center on a managed retreat project focused on how best to use federal Sandy reconstruction aid money.

“How can communities rebuild themselves while minimizing harms in the future?” asks Lloyd, who, like Gerrard, is also on the faculty of Columbia University’s Earth Institute. “We’re looking at municipal and state government strategies regarding flooding—from Maine to Mississippi—to come up with a handbook for government officials. Should we rebuild the dunes? Should we rebuild the first two blocks near the ocean? What has worked before? We want to give state officials the tools others have used. Sandy represents an enormous opportunity. The billions in community block money coming into New Jersey alone is the equivalent of 300 years’ worth of block grants.”

Like graphs of global temperatures from the past 50 years, student interest in climate-related legal issues reflects an upward trend. Course and clinical offerings led by Gerrard and Lloyd are often oversubscribed. “Student interest is growing,” says Gerrard. “There was a rise when it appeared there was going to be a massive new regulatory program in Waxman-Markey [a bill that would have capped emissions and created a market for trading emissions quotas], then something of a drop after the climate legislation died. But the continued accumulation of scientific studies is reviving interest, as are recent administration actions. The energy side of the equation will lead to a lot of employment prospects. [The center attracts students] who have an environmental commitment, as well as those who see it as a business and practice area.”

Lloyd expects that Sandy and superstorms to come will result in even more student interest. “For the past decade, climate and energy have been huge issues, but the storm really brought it home,” he says. 

There are, of course, still those who deny climate change is happening. Those working on center and clinic projects encounter this diminishing population of skeptics in the policy arena. Some students also work directly opposite them, defending Columbia climate scientists from scurrilous and politically motivated attacks. “Some of the groups opposed to climate regulation attack Columbia’s climate scientists, which has led to legal actions,” says Gerrard. “Our students help them defend themselves.”

The skeptics, though, are fighting an increasingly rear-guard and losing battle, with neither science nor time on their side.

“All the projections are that higher seas, warmer temperatures, and more extreme weather will lead to a range of global security and humanitarian challenges,” says Gerrard. “The world that our students will be facing in the middle and latter parts of their careers will be profoundly different from the one we have today.”

Alexander Zaitchik is a journalist who has written for The New York Times, Wired, and Details, among other publications.

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Illustration by C.J. Burton