Disaster Law Commons^™

Challenging Equality: Property Loss, Government Fault, And The Global Warming Catastrophe, Laura S. Underkuffler

Northwestern University Law Review

One of the bedrock principles of American property law is that all property owners and all property are protected equally. We do not believe—when it comes to compensation for loss—that poor owners are compensated rigidly and rich owners are not, or that property in private homes is protected rigidly and property in commercial or industrial structures is not. When it comes to compensation due to public or private fault, we believe in absolute equality. Equal treatment of property is at the heart of the liberal state and is the promise of American property law.

This Essay challenges that bedrock idea. …

Climate Change As Systemic Risk, Barnali Choudhury

Articles & Book Chapters

Hindsight tells us that COVID-19, thought by former President Trump and others to have come out of nowhere, is more aptly labelled a “gray rhino” event, one that was highly probable and preventable. Indeed, despite considerable evidence of the impending threats of pandemics, for the most part, governments failed to prepare for the pandemic, resulting in wide-scale social and economic losses.

The lessons from COVID-19, however, should remind us of the perils of ignoring gray rhino risks. Nowhere is this more apparent than with climate change, a highly probable, high impact threat that has largely been ignored to date. Despite …

Reimagining Exceptional Events: Regulating Wildfires Through The Clean Air Act, Emily Williams

Washington Law Review

Wildfires are increasing in both frequency and severity due to climate change. Smoke from these fires causes serious health problems. Land managers agree that prescribed burns help mitigate these negative consequences. Prescribed burns are lower-intensity fires that are intentionally ignited and managed for an ecological benefit. They reduce the amount of smoke produced and limit wildfire damage to natural systems and human property.

The Clean Air Act (CAA) is designed to regulate air pollution to protect public health, yet it exempts wildfire smoke through the exceptional events designation while imposing strict regulations on prescribed burns. Congress and the Environmental Protection …

Intangible Cultural Heritage: A Benefit To Climate-Displaced And Host Communities, Gül Aktürk, Martha B. Lerski

Publications and Research

Climate change is borderless, and its impacts are not shared equally by all communities. It causes an imbalance between people by creating a more desirable living environment for some societies while erasing settlements and shelters of some others. Due to floods, sea level rise, destructive storms, drought, and slow-onset factors such as salinization of water and soil, people lose their lands, homes, and natural resources. Catastrophic events force people to move voluntarily or involuntarily. The relocation of communities is a debatable climate adaptation measure which requires utmost care with human rights, ethics, and psychological well-being of individuals upon the issues …

Central Banks And Climate Change, Christina P. Skinner

Vanderbilt Law Review

Central banks are increasingly called upon to address climate change. Proposals for central bank action on climate change range from programs of “green” quantitative easing to increases in risk-based capital requirements meant to deter banks from lending to climate-unfriendly business. Politicians and academics alike have urged climate risk as both macroeconomic and financial stability risk. Relative to counterparts abroad, the U.S. central bank—-the Federal Reserve—-has been more measured in its response.

This Article offers a legal explanation why. It urges that, despite the substantive importance of climate change, the U.S. Federal Reserve presently has relatively limited legal authority to address …

Ashes To Ashes: A Way Home For Climate Change Survivors, Kenneth S. Klein

Faculty Scholarship

In 2020, the United States suffered a record number of named storms, a record number of storms causing $1 billion or more in damage, a derecho that destroyed much of Iowa’s corn crop, and previously unheard-of levels of wildfire frequency and damage in California, Oregon, and Washington. The effects of climate change are causing a crisis of affordable, available homeowner insurance. As more and more homes in the United States are in high-risk areas for natural catastrophes, insurers increasingly choose not to offer insurance at all in some communities, exclude disaster risks from coverage in others, and dramatically raise prices …

On Environmental Law, Climate Change, And National Security Law, Mark P. Nevitt

Faculty Articles

This Article offers a new way to think about climate change. Two new climate change assessments—the 2018 Fourth National Climate Assessment (“NCA”) and the United Nations Intergovernmental Panel on Climate Change’s Special Report on Climate Change— prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change an environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement within nations …

Managing Hurricane (And Other Natural Disaster) Risk, Robert Jerry Ii

Texas A&M Law Review

With the data showing that hurricanes are the most likely and serious of all of these disasters, we return to Hurricane Harvey. No one living in Texas—especially in the cities of Houston, Port Arthur, Bridge City, Rockport, Wharton, Conroe, Port Aransas, and Victoria, or more generally in the counties of Harris, Aransas, Nueces, Jefferson, Orange, Victoria, Calhoun, Matagorda, Brazoria, Galveston, Fort Bend, Montgomery, and Wharton—needs to be told that the U.S. needs a better approach to managing hurricane and other natural disaster risk, both in terms of pre-disaster planning and post-disaster recovery. Texans are not alone, as survivors of Hurricanes …

An Inflection Point For Disaster Relief: Superstorm Sandy, Danshera Wetherington Cords

Touro Law Review

No abstract provided.

Trial By Water: Reflections On Superstorm Sandy, Thomas Maligno, Benjamin Rajotte

Touro Law Review

No abstract provided.

Sink Or Sell: Using Real Estate Purchase Options To Facilitate Coastal Retreat, Richard T. Henderson

Vanderbilt Law Review

Despite the political contention surrounding climate change, scientists almost universally agree that sea levels are rising and will continue to do so. In light of this inevitability, commentators and policymakers have begun to recognize that retreat-the withdrawal of people and development from coastal areas will become necessary, at least in certain areas. Even so, many still question the viability of retreat given the exorbitant economic, political, and legal costs it generally faces. In particular, hardline opposition to retreat runs strong among many coastal landowners. This Note introduces a device for implementing retreat with the potential to overcome these obstacles: real …

Submerging Islands: Tuvalu And Kiribati As Case Studies Illustrating The Need For A Climate Refugee Treaty, Rana Balesh

Environmental and Earth Law Journal (EELJ)

Climate change will significantly impact vulnerable populations. Included in those populations are island indigenous peoples. Small island developing states are particularly vulnerable to the rise in seal level. Loss of territory due to rising sea levels is not the only problem however, infrastructure and food supplies are also at risk. As such, this article addresses the need for a comprehensive climate change refugee treaty using Tuvalu and Kiribati's circumstances to illustrate the situation.

Disasters First: Rethinking Environmental Law After September 11, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes were enacted, or at least spurred along, in direct response to disasters. The Federal Water Pollution Control Act of 1972 followed from the Santa Barbara Oil Spill; the Emergency Planning and Community Right-to-Know Act (EPCRA) resulted from the chemical gas disaster in Bhopal, India; the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was sparked by the Love Canal incident; and the Oil Pollution Acte was a reaction to the Exxon Valdez oil spill.

The terrorist attacks of September 11, 2001 have led to the Homeland Security Act and to several other enactments. The collapse of the …

Prescriptive Treaties In Global Warming: Applying The Factors Leading To The Montreal Protocol, Jasmine Abdel-Khalik

Michigan Journal of International Law

In order to combat the ever-increasing problem of global warming, developing nations need technology that will limit emissions while allowing for economic growth. This paper will first examine the problem of global warming. In Part II, the paper will explore the reasons developing nations currently are unable to reduce their emissions. In Part III, the paper will look at the factors leading to the success of the Montreal Protocol and examine the global warming debate in light of these factors.

Racing The Rising Tide: Legal Options For The Marshall Islands, J. Chris Larson

Michigan Journal of International Law

This Note first describes the threat posed by accelerated sea-level rise. A review of scientific data shows that global warming causes ocean levels to rise and that RMI may need to be evacuated. The current diplomatic efforts to decrease global warming offer few assurances to RMI. In fact, the countries that have obligated themselves to reduce global warming are actually increasing emissions of gases that cause global warming.

The Role Of Risk Analysis In The 1992 Framework Convention On Climate Change, Martin J. Lalonde

Michigan Journal of International Law

This Note examines the role that risk analysis played in fashioning the Framework Convention on Climate Change and argues that risk analysis should play a significant part in implementing the Convention.

Stratospheric Ozone Depletion: A Challenge For International Environmental Law And Policy, Ved P. Nanda

Michigan Journal of International Law

The first part of the article addresses the phenomenon of stratospheric ozone depletion, noting significant recent developments, and discussing their ramifications. This is followed by an inquiry into pertinent international and U.S. responses to ozone depletion. Recent developments in international environmental law provide an appropriate context for this inquiry. The adequacy of these responses is assessed in the next section. Recommendations follow in the concluding section.