Legal Fictions: Changing the Law to Stop Changing the Climate

legal padThe National Climate Assessment released this week by the White House shows that human caused climate change is already affecting the United States. Looking at it in conjunction with the recent report from the International Panel on Climate Change, it’s easy to see that we need to act, and act quickly.

There are a variety of suggestions on what to do, but Bill McKibben and others who have done the math on how much more carbon we can put into the atmosphere without making the planet unlivable for human beings say one solution is to just leave most of our reserves of fossil fuels in the ground. That is, tell the oil companies – and all the people who have property rights in that oil and gas and coal – that they can’t pull it out.

A recent article in The Nation talks about how much money that represents – somewhere between $10 and $20 trillion dollars — and compares the potential economic disruption with another major upheaval in the U.S.: ending slavery.

When I think about how to deal with this problem, I run smack into U.S. property law.

In the U.S., people have a lot of right to use their property as they see fit. Yes, there are building codes and land use regulations, but there are also court decisions that have chipped away at some important environmental regulations, particularly those related to building on wetlands and barrier islands. The courts have objected to laws that prevented people from getting the economic benefit of their property.

Even assuming that the U.S. Congress or some state legislatures could be induced to pass laws prohibiting oil companies from drilling for much of their reserves, I’m not sure such a law would survive a constitutional challenge. At a minimum, I can easily see the Supreme Court requiring the government to pay the companies trillions of dollars not to drill.

And when you consider that the companies in question are among the most powerful entities in the world – BP, ExxonMobil, Royal Dutch Shell – and have plenty of money to spend to block any such laws, the situation gets murkier.

Further, in a lot of cases oil and gas in the ground is owned not by a big company, but by a lot of ordinary people. The big oil companies lease the right to drill and process the oil from those individuals. Hell, I own some myself. My grandfather and his brother bought up mineral rights back in the 1930s, when they were cheap, and by inheritance a small piece of those rights belong to me.

In my case, it doesn’t amount to a lot of money, so it’s easy for me to be fine with leaving the oil in the ground. But there are plenty of people with significant investments in mineral rights. The oil companies may have the most to lose economically, but there will be plenty of private citizens affected as well.

And, of course, the United States owns a lot of those mineral rights itself, especially the ones in the oceans and on federal land. A law blocking putting limits on the amount of fossil fuels pulled out of the ground would hit Uncle Sam in the pocketbook as well. Plus some people would argue that the government is obligated to maximize the return on its public lands.

It’s possible that a radical restructuring of U.S. property law could be necessary to deal with climate change. Even if we could get consensus in this country that we need to act on climate change – unlikely while so many members of Congress (including, alas, my own, who happens to chair the House Science and Technology Committee) reject good science and profess not to “believe” in climate change – I’m not sure we could get consensus on major limits on what people can do with their property even if all those people admitted there was a problem.

The fact that some nations have nationalized oil companies doesn’t change the underlying problem. Those countries are economically invested in continuing to use fossil fuels just as the private corporations are. I sincerely doubt that a movement to limit drilling would fly under their laws and constitutions as well.

Then there’s geoengineering. A recent Pacific Standard article raises the issue of how difficult it is to regulate.  Scientifically, most of the geoengineering ideas out there are unproved and risky, but if it only takes one desperate country – say an island nation watching itself sink into the ocean – to permit wild experimentation, we may not be able to stop such experiments. Those of us who’ve spent a lot of time in science fiction would love to see one of those experiments succeed, but while wildcat geoengineering makes a great plot, the fact that it can affect everybody on Earth (and not necessarily for the better) makes it something that the rest of us have some interest in regulating.

Climate change presents a major legal challenge, one that our current law does not seem to address well. It may be time to question whether ownership of fossil fuels is something that should be allowed under any law, but that’s an extremely radical change. And the economic effects of limiting property rights are very real.

But unchecked climate change will also devastate the economy as well as the environment. Sitting on our hands isn’t an option either.

I’d say it’s impossible to write near future science fiction these days without addressing climate change to some degree. So here is another opportunity for writers to contemplate ways of changing the legal system to deal with the most significant problem facing the world today.

If you come up with anything viable, make sure and send a copy of the book to members of Congress and your state legislators. They’re going to need all the help they can get.



Legal Fictions: Changing the Law to Stop Changing the Climate — 18 Comments

  1. Interesting article. Perhaps we should try to adopt Lincoln’s first approach to slavery: I acknowledge that it is morally wrong, but you can continue to rely on it, just not expand its use. The South, of course, prefered to see hundreds of thousands of people die rather than compromise the unlimited use of slavery.

    All the alternatives are ugly. Particularly when you factor in the idea that it may already be too late.

    • If not expanding its use means leaving most fossil fuels in the ground, it might work — and better than it would have worked with slavery, which, of course, just had to be shut down completely. But the oil companies will fight leaving it in the ground.

      • Pity they couldn’t shift operations to wind and solar–and use the land to farm those. But that would require serious retooling. And a complete shift in thinking, which giant corporations are not good at, at all.

        • The companies are investing in those things as well, but they don’t like the idea that energy generation could be widely distributed, instead of under their control. Why put solar panels on acreage out in the desert when you can just put them on every house and business in town, especially in large swaths of the west.

          • Sun is pretty damn reliable in West Texas. Wind, too, but the sun is relentless. Storage and moving the energy to other places are a bigger issue out there.

              • Believe me, in August it feels like we don’t get nightfall.

                Seriously, in West Texas and large chunks of other southwestern states, what you get is 11-13 hours of sunshine on most days of the year — more than enough to create large quantities of energy year round. That’s enough to provide power overnight, even in the dead of summer when you’re running AC to the max. (Winter is less of a problem. Almost as much sun but much less need for energy.)

          • We have solar panels now that can store power for over three weeks in complete darkness.

            In places like the US Southwest, which gets 360 days of sun a year, solar makes excellent sense, and is being developed extensively. Me, I’m waiting for general and affordable availability of those new solar shingles.

            True enough, wind and sun are much harder to control than fossil fuels. But the megacorps will surely find a way.

            • The prices are dropping all the time and the panels — and the new shingles — are getting more efficient. In Austin, the city is giving solar rebates, but then the city owns the power company.

              I drove past coal-fired power plants last year while driving through Arizona and know that a company is trying to put one in near Sweetwater in West Texas — two places that would be much better served by solar. Driving through the towns and cities of West Texas — places that have few trees (and those that they have are scrubby) — I kept thinking that you could put solar on every roof in town, plus put up a lot of covered parking lots and other places to create shade with panels on them as well. That would power those places year round — they get well above 300 days of sunshine a year and the days without are not all at the same time.

              • Tucson is doing that. Huge solar arrays in the Avra Valley, solar panels on school and business roofs (and some subsidies for residential installations), and they just put up a covered parking at the airport with solar panels on the roof. Solar is huge with the local power company. Lots of investment in it.

                Was the coal-fired plant in or near Phoenix?

  2. If I drive over your lawn, I have to pay for the damage I’ve caused. But our legal system treats the fossil fuel lords differently than you and me. If fossil fuel owners and distributors were liable for the damages their products are causing, have caused, and will cause, the value of fossil fuels in the ground would plummet – perhaps to zero.

    Take the case of the asbestos mining industry. They had to pay for (some of) the harm they caused. And the asbestos bidness is gone. (I know it’s not that simple, that asbestos was also outlawed in various products.)

    • Hmm. That’s an interesting approach — use personal injury litigation to lean on the fossil fuel industry, as was done with asbestos. One problem: by the time we can put together good enough scientific data to tie the fossil fuel industry to damage to our society — not to mention developing a legal theory that recognizes climate change as an injury for which we can sue — it may be too late to have an effect.

      But it would be worth trying. So far most of the litigation has focused on clear environmental damage caused by oil and gas operations, spills, etc. I don’t think anyone has tried suing over climate change. The first suits won’t go anywhere, but then, neither did the first suits against the tobacco industry.

      The damage caused by asbestos was well-known for a long time before the suits became successful. It’s hard in many cases for science to tie pollution and related problems to injury, partly because a lot of the injuries are things that have more than one cause.

      • Hi Nancy – One might begin with the property damage caused by extreme weather events and the practice of apportioning liability…. In Boston we are already looking at changes needed to fortify the roads and subway infrastructure against the floods that will begin within 25 years. Why should taxpayers bear the full cost, while the carbon company investors get off scott free?

        • That sounds like a good idea. I hope some creative lawyers are jumping on it. It’ll take a lot of failed suits before it works, but as I said before, that’s what happened with suits against the cigarette manufacturers and we’ve had a real change there.