The 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.