Climate Change and the Legal System: Why the U.S. Constitution Needs to Adapt with Law Professor Mark Nevitt

In episode 182 of America Adapts, Doug Parsons host Mark Nevitt, a former Navy Jag and now Law professor at Emory University. Mark shares his insights on the intersection of law and climate change. They discuss how US laws were created during a much more stable climate and how the legal system has not kept up with the current climate moment. The takings clause in the US Constitution is now relevant for climate change and Mark and Doug dig into this issue. Mark also considers his military experience good preparation to get into climate adaptation. We also discuss whether judges should recuse themselves if they are climate skeptics and should we amend the US Constitution to address important adaptation issues. Also, what would happen if the President declared a national emergency around climate change. Join us for this fascinating discussion on the challenges and opportunities at the intersection of law and climate change.

Topics covered: · Mark's military background in the Navy and military justice informs his perspective on climate change adaptation. · US laws were created during a time of more stable climate, which poses legal uncertainties for climate adaptation measures. · The takings clause in the US Constitution is relevant to climate change adaptation. · Cities that commit funding for infrastructure are now liable to maintain it, even in the face of long-term climate impacts. · Climate skeptics may pose a challenge to legal decisions in climate adaptation cases, raising questions about judge recusal. · Is there a need to amend the US Constitution to address important adaptation issues? · Without a change in legal doctrine, climate adaptation will default to unmanaged retreat, exacerbating existing inequalities. · A declaration of a national emergency around climate change by the President could help to spur action on climate adaptation. · The 5th Amendment presents challenges for implementing many climate adaptation measures due to its provisions on property rights and compensation.

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Links in this episode: Mark Nevitt Emory Profile: https://law.emory.edu/faculty/faculty-profiles/nevitt-profile.html

Link to the paper The Legal Crisis Within the Climate Crisis, forthcoming in the Stanford Law Review: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4372312

Emory Climate Research Initiative: https://news.emory.edu/stories/2022/12/er_climate_initiative_02-12-2022/story.html

Emory's Environmental Law Clinic: https://law.emory.edu/academics/clinics/faculty-led-clinics/turner-environmental-law-clinic.html

Lawfare and Just Security climate pages - https://www.lawfareblog.com/contributors/mnevitt and https://www.justsecurity.org/author/nevittmark/

How do We Manage Managed Retreat? https://kleinmanenergy.upenn.edu/research/publications/climate-adaptation-strategies-how-do-we-manage-managed-retreat/

Mark Nevitt Scholarship website on SSRN: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1916527

Previous America Adapts Episodes Referenced in this Episode

Episode 156: Affordable Housing and Climate Change with Laurie Schoeman of Enterprise Community Partners with Laurie Schoeman

Episode 116: The Biggest Short: Climate Change meets the 30-Year Home Mortgage with Dr. Jesse Keenan

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