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Vanderbilt Law Review

Mark Nevitt

First Page

493

Abstract

Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws designed for a different physical environment, an environment more stable than the one we currently have, harm our ability to respond to climate-induced disasters.

What is our national adaptation strategy to counteract the climate crisis? We do not have one. What we do have can be described as “unmanaged retreat”—a reactive, disjointed, and ad hoc “strategy” that exacerbates inequalities. Unmanaged retreat also traps communities in a cycle of repeated rebuilding after climate-induced destruction. This “strategy” stands in stark contrast to what climate change demands: proactive, forward-looking, and innovative laws and policies that address climate risk. Achieving a more effective legal framework begins by dismantling legal barriers and breaking the destroy, rebuild, repeat cycle.


This Article provides a new normative framework to break the climate disaster cycle. Legal evolution will require a shift away from a reactive “destroy, rebuild, repeat” model to a systematic, proactive “inform, retreat, suspend” strategy. This transformation favors information (by increased transparency with the public about climate risk), retreat (by voluntary buyouts from climate hazard zones), and suspension (by halting governmental services). Our ability to make this legal shift will determine future adaptation and disaster progress.

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