August 2023
ELR 10641
J.B. Ruhl and Robin Kundis Craig

Accelerating ice loss and expanding wildfire zones are potential markers of what are known as tipping points—thresholds along a nonlinear pattern of system change that accelerate the pace of change. Scientists are concerned that our global climate system is dangerously close to passing these points. This trend has significant implications for governance and law. Climate change disruptions will extend beyond biophysical systems to social systems, including systems of governance. Failing to anticipate and adaptively plan for that future presents an existential threat to democratic governance. There is now widespread agreement mitigation and adaptation must be concurrent governance efforts. However, adaptation inherently requires present governance institutions to anticipate uncertain future conditions in constant flux. Anticipatory governance reflects this challenge of formulating adaptation policy strategies built around possible future scenarios. The standard mitigation policy goal has been to contain the global average increase in temperature to 1.5° Celsius (°C) above pre-industrial levels ideally, and to 2°C at worst. Adaptation policy has likewise focused on the measures needed to adjust to this relatively limited amount of warming. Yet, research increasingly identifies warming of 2°C as a likely tipping point threshold for many ecological systems, with cascading effects on social systems, and things only get worse as the temperature keeps increasing. The vision of a 1.5-2°C future has played out in adaptation policy through three interconnected adaptation modes. First, to resist the impacts of climate change. Second, to build the resilience of social-ecological systems. Third, to retreat from unavoidable impacts. Moving past 2°C will require adding a fourth adaptation mode—redesign. By “redesign,” this Article means transformational adaptation measures needed to reconfigure and relocate our nation’s population distribution, land uses, infrastructure, economic and production networks, and natural resource management. Engaging now in anticipatory adaptation, it argues, is the best chance of avoiding a breakdown in democratic governance.

J.B. Ruhl is the David Daniels Allen Distinguished Chair of Law at Vanderbilt University Law School. Robin Kundis Craig is the Robert C. Packard Trustee Chair in Law at the University of Southern California Gould School of Law.

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