Climate Insider Brief:
- Feldman and May highlight the growing issue of climate displacement in the U.S. by 2050, necessitating a national strategy for managed retreat.
- They discuss how U.S. constitutional law will influence government programs to address this, potentially requiring a “constitutional revolution” to overcome legal challenges.
- The authors argue that while Congress likely has the authority to regulate internal climate displacement under the Commerce Clause, federal efforts may face challenges from the Tenth Amendment, which reserves certain powers to the states.
PRESS RELEASE – Sep 16, 2024 – The inevitability of climate impacts, the necessity of planning for more severe outcomes, and the role of the U.S. legal system in addressing these challenges are highlighted in a new article by Ira Feldman and James R. May recently published in Natural Resources & Environment (NR&E), an American Bar Association quarterly magazine. The authors examine how U.S. constitutional law informs and influences potential government programs and policies affecting millions who will be displaced from their homes and livelihoods by climate change. They argue that a “constitutional revolution” may be necessary to address these pressing issues.
Climate Displacement in America
By 2050 and in the ensuing years, America will be wildly different, even unrecognizable, with millions displaced by sea level rise, wildfires, and extreme temperatures. Given the complexity and enormity of the challenge, we need a national managed retreat strategy to coordinate where these displaced people will go. In their article, Feldman and May
consider existing congressional authority to develop regulatory programs to manage internal climate displacement in the U.S. and identify constitutional concerns regarding the coordinated management of climate-displaced populations.
“Much attention is being directed towards the climate impacts on vulnerable communities, including the need for some to consider relocation. While managed retreat is important to address, fewer officials, academics and residents have given thought to where populations may relocate. Such places have become known as ‘climate havens’ in the popular press, but there is no existing game plan to assist such receiving communities,” said Feldman, the founder and chairman of Adaptation Leader, a lawyer, consultant, academic, and longstanding leader in environmental, climate, and sustainability issues.
You Say You Want a “Constitutional Revolution”
Feldman and May suggest that certain constitutional protections can facilitate the development of a national-level strategy for managed retreat and receiving communities, but other provisions may obstruct federal efforts. For example, while it’s likely that Congress has the authority to regulate internal climate displacement under the Commerce Clause, which permits Congress to regulate activities that “substantially affect” interstate commerce, a coordinated federal program could violate the Tenth Amendment, which reserves powers not expressly delegated to the federal government to the states or the people.
“Climate change will displace millions of Americans and result in new – some would say revolutionary – applications of the U.S. Constitution to keep up,” said Professor May, a preeminent environmental, constitutional, and human rights law scholar, formerly of Widener University Delaware Law School and now a Richard S. Righter Distinguished Professor of Law at Washburn University Law School. Where constitutional constraints exist, adjustments may be needed, including a “constitutional revolution” – a term advanced by Robert J. Lipkin to indicate when constitutional interpretations must change in response to new conditions.
Adaptation Leader’s Receiving Community Initiative
Excerpts from Climate Displacement, Managed Retreat, and Constitutional Revolution will be included in Adaptation Leader’s Research & Policy Agenda (RPA), a cornerstone of its Receiving Communities Initiative. The next steps for the RPA include a webinar in November and an in-person multi-stakeholder convening in Washington, DC, in early 2025. These events will be produced and hosted in collaboration with Randall Abate, esteemed law professor and Assistant Dean of Environmental Law at George Washington University Law School. Follow Adaptation Leader on LinkedIn for the latest RPA updates.
About Adaptation Leader
Adaptation Leader is a Section 501(c)(3) not-for-profit organization with the mission of raising literacy in climate adaptation and resilience across all stakeholder groups.
For more information, contact:
Ira Feldman
+1 (202) 669-1858
SOURCE: Adaptation Leader
Featured Image: Credit: Adaptation Leader
