Podcast & essay: Mark Nevitt on “Climate Change and National Security: Top 10 Questions that Demand Answers”

Today’s guest post is a special one as we have not only the podcast of Prof Mark Nevitt’s fascinating presentation on “Climate Change and National Security” at our recently-completed 25th Anniversary National Security Law Conference, but also an essay that Mark has kindly provided. 

The essay summarizes the key points of his lecture and, importantly, is loaded with embedded links to source material and more. I suggest you read it AND listen to the podcast (a bonus: the podcast – found here – contains the Q & A.).  

Mark’s essay is below (the illustrations are my “adds” and include some material from Mark’s lecture).  Here’s your chance to learn from a real expert!

Climate Change and National Security:  Top 10 Questions that Demand Answers

Mark P. Nevitt

Although the military has been thinking about climate change for some time, the field of climate security has only emerged within the past few years.  As we conceptualize climate change as a new and non-traditional national security threat, the legal and ethical implications issue are real, ripe, and unresolved. 

As one famous technologist once said, “The future is already here.  It is just not evenly distributed yet.”  But that is why I come to the Duke LENS conference every year, where the audience and speakers are already engaging on threats that will only grow in importance.  Climate change is one such national security threat, with enormous legal and ethical implications.

While my focus here is to address the national security implications of climate change,  please know that climate change is already destabilizing many other areas of law throughout the first-year law school curriculum.  Consider the following three areas.

First, climate change is destabilizing property and land use law as coastal communities must wrestle with sea level rise, adaptation, and managed retreat from vulnerable areas.   How does the takings clause help or hurt climate adaptation measures?   When should we initiate eminent domain proceedings against property?  

Second, climate change is already beginning to destabilize tort law as governments consider withholding emergency services from climate-prone communities.  Does the government have an affirmative duty to protect its citizens?  And can that duty ever be waived? 

Third, climate change is destabilizing core principles of contract law as climate change transforms 1000-year floods to every-other year floods, reconceptualizing what we mean by an “Act of God” and core contractual notions foreseeability.   Ellicott City is a small, historic city in Maryland has seen two 1,000 year floods in a two-year period.  At what point does an Act of God within the meaning of contract law become just an everyday weather event?

In my scholarship, I’ve argued that we are entering a new, climate security century.  This century will be defined by climate change’s destabilizing impacts on the environment and human security both at domestically and internationally.  Climate change is, in the words of Professor Richard Lazarus, a “super-wicked problem” where at this time there are more questions than answers.  So at this point,  asking the right questions is absolutely critical.  In what follows, I highlight what I see as the top ten questions that are emerging as we properly conceptualize climate change as a national security issue. 

#1. How should we frame climate change as a national security issue?

Unlike many other national security threats, climate change exacerbates existing threats. It serves as a threat multiplier, catalyst for conflict, and destabilizer of the human environment. As we wrestle with the emerging field of climate security law, it is important to get the governing climate security framework precise.  I propose the following three areas to frame the emerging field of climate security.

• • Adaptation:  Climate change, through sea level rise and storm surge, threatens national sovereignty and territorial integrity.  This includes investing in climate resilient infrastructure and being prepared to make difficult decisions about where to build, when to accommodate, and when to retreat. Extreme weather has devastated infrastructure at military installations — witness the destruction of parts of Tyndall Air Force Base following Hurricane Michael — reaffirming the  need to invest in climate adaptation measures at our national security infrastructure.

• • Mitigation: Mitigation has been the focus of climate change law and scholarship to date at both the international and domestic level.  Think of the actions of the United Nations Framework Convention on Climate Change and the Clean Air Act, which can regulate harmful GHG emissions.  The U.S. military is an enormous emitter of GHG emissions, exceeding many sizeable European nations. How do we capture these emissions and take this into account when determining our nationally determined contributions?

• • Response: This includes both a domestic and international component.  As a legal and policy matter, we need to move from reactive measures on climate change to proactive measures.  Domestically, this includes ex post use of the military, homeland security and national security resources following natural disasters exacerbated by climate change. Internationally, as climate change causes food, droughts, and extreme weather events, we are witnessing a rise in internal displacement within nations and an increase in climate change refugees across international borders.
    

#2.  What lessons, if any, can we draw from international law and other agreements to solving the climate crisis?

 Mark Twain famously said that “history does not repeat itself, but it often rhymes.”  There are lessons that we can potentially learn from past international agreements as we seek to reduce our global GHG emissions. After all, the science is well settled that human activity is the direct cause of climate change.  For example, the  1987 Montreal Protocol on Ozone Depletion Substances (1987) was a remarkable successful international treaty aimed at a similar — albeit less complex — problem.  What lessons can we draw from this international agreement and others? 

#3. Are we resourcing the military properly with the proper legal authorities to meet future climate threats?  

As we have seen an increase in natural disasters, the military will be called upon to respond and offer aid via a unique mission:  Defense Support of Civil Authorities.  This mission often falls on the U.S. Coast Guard and state National Guards.  And  the Posse Comitatus Act prevents the “Title 10” military from taking an active role in law enforcement, which may occur after a massive natural disaster, as was seen in Hurricane Katrina. 

The Coast Guard, which has unique title 10 and title 14 authorities must be properly resourced to face the domestic climate threat.  Yet the Coast Guard has seen its budget slashed in recent years.  We must ensure that we have the proper legal authorities in place and proper resources in place to combat the climate crisis.

#4.  When do we abandon property and people?  And who should make that decision? 

As a general matter, we need to move from reactive measures to proactive measures.  The cost to rebuild in many climate-exposed areas is far too high; we need sensible regulations and policy.  Too often a natural disaster is declared following mass destruction, forcing taxpayers to bailout (and rebuild!) climate-prone areas.  Is this a wise investment?   At what point should we, as a society consider eminent domain proceedings?  This raises enormous ethical issues as  climate change exacerbates inequality and disproportionately affects the elderly, people with disabilities, poorer communities, and Native American communities.  But this is a core human security issue, with far-reaching impacts.   

#5. How is climate change impacting the Arctic?

We have simply underestimated the pace of sea ice melting and climate change in the Arctic.  At this time, the Intergovernmental Panel on Climate Change (IPCC) estimates that that Arctic is melting 2-3 times faster than the rest of the world.  

This is opening new sea routes to include the Northern Sea Route, which hugs the Russian coastline and the Northwest Passage, which travels through parts of Canadian waters.  And what happens in the Arctic does not stay in the Arctic as the melting permafrost adds to Greenhouse Gas emissions, accelerating the pace of climate change. 

#6.  What are Russia’s military ambitions in the Arctic and what are China’s ambitions?

Culturally, Russia considers itself an Arctic nation in ways that the United States does not.   Approximately 20% of its GDP arises from the Arctic region.   But the Arctic Council does not have military security matters in its jurisdiction.  China, too, has declared itself a so-called “Near Arctic nation,” has announced an Arctic Strategy and has shown a growing interest in the region.  What are their long-term ambitions and can the Arctic Council manage the competing interest in the area?

#7.  Is climate change a national emergency?

This is enormously controversial issue of domestic U.S. law, but has gained some traction in the  past 12 months.   It invokes the President’s delegated national security powers via the National Emergencies Act. This has been in the news due to the President’s declaration of a national emergency at the southern border.  

Indeed, when President Trump declared an emergency at the southern border, political leaders (such as Senator Marco Rubio)  warned that a future Democratic Senator will declare climate change a national emergency.  What legal authorities could be actuated through a future climate emergency declaration?  And what are its implications for democratic governance?

#8.  Is climate change a threat to international peace and security within the meaning of the UN Charter?

The United Nations Security Council has gradually expanded the definition of “threat to international peace and security” to include non-traditional threats (terrorism, Ebola, HIV/AIDS).  Could climate change also be considered a threat to international peace and security? 

If so, what actions could the Security Council take under Chapters VI and VII of the Charter. If, indeed, you reside in one of the four atoll nations that may well be uninhabitable by mid-century, I would submit that climate change poses an existential threat that threatens your peace and security.  

#9.  What are the ethical and moral responsibilities for wealthy countries to assist poorer nations?

We are seeing a rise in climate refugees and climate science anticipates that many atoll nations will be uninhabitable by mid-century. 

Climate change exacerbates inequality and, in a tragic and cruel irony the nations that contributed the least to global GHG emissions will often bear the worst of climate change’s adverse impacts. 

#10 What can we, at Duke LENS, be part of the solution?

Climate change is a scientific issue that demands a political solution  — not vice versa.  At this point, the most important thing we can do is get educate and be informed on both the climate science and the climate impacts. 

I recommend the 2018 National Climate Assessment and the 2018 Intergovernmental Panel on Climate Change Summary for Policymakers.

In sum, there are more questions than answers as we think through the enormous legal and ethical questions that climate change poses.

And it is so important to get the questions right, so be informed!  It is an honor and a privilege to be invited to speak at Duke LENS. I look forward to your questions.

(Again, if you’d like to hear the Q & A, listen to the podcast found here )

Mark P. Nevitt is the Class of 1971 Distinguished Professor of Leadership and Law at the U.S. Naval Academy (USNA) in Annapolis, MD.  From 2017-19 he served as a Sharswood Fellow, Lecturer-in-Law at the University of Pennsylvania Law School where he taught classes on national security law and climate change.  Prior to his academic appointment at Penn and the USNA, he served as both a tactical jet aviator and attorney (JAG) in the U.S. Navy with the rank of Commander. 

The views and opinions in this article are those of the author and do not necessarily reflect those of the U.S. Department of Defense, the Navy, or any component of the U.S. government.  Guest posts also do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Still, as we like to say on Lawfire^®, gather the facts, examine the law and the arguments, and decide for yourself!