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Vanderbilt Journal of Transnational Law

Maria L. Banda

First Page

1027

Abstract

The increasingly severe and irreversible effects of climate change around the world make adaptation to a changing climate an immediate and urgent global priority, as the Paris Agreement on Climate Change acknowledged. Yet adaptation investment--to make communities and ecosystems more resilient to climate change--has been slow to materialize. Closing the finance gap and rising to the challenge of adaptation requires two conceptual shifts in how we think about adaptation law and governance. The first is that optimal adaptation is a public good, much like a healthy climate or safe streets. Everyone is better off in a resilient community that can thrive despite climate impacts, whether they contributed to resilience or not. This means adaptation investment will likely continue to be underprovided by the market in the absence of an effective legal regime. The second shift is that adaptation is not merely a local matter, though it is still largely treated as such. In several important scenarios, it will also be an international public good requiring international cooperation. Parties to the Paris Agreement seemingly recognized this when they described adaptation as a "global challenge" with "local, subnational, national, regional and international dimensions." However, they did not consider what this means in practical terms for law and governance, and the literature is still largely silent on this issue.

This Article seeks to move the analysis forward. It makes three principal contributions. First, building on economic analysis of collective action problems, externalities, and public goods, it develops an analytical framework to examine the adaptation challenge and similar cross-cutting legal issues. In particular, it reconceptualizes climate adaptation as a multi-level public good (MLPG)--with domestic, transboundary, and global dimensions. Second, it explores the implications of this conceptual shift for institutional and legal design at each level of governance. It considers the efficacy of different market-based mechanisms (Coasean private contracting) and prescriptive regulation in the light of this framework and explores the distinctions between the domestic and the international realms. Third, it proposes a multi-level governance model that could help produce what I call "optimal adaptation" and help optimize legal design. In particular, it identifies three priority areas for institution building in the transboundary setting that pose particular challenges for legal design. This framework will open avenues for more granular and critical study of the legal design and contracting required to rise to the challenge of multi-level public goods.

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