Navigating the Intersection of Environmental Law and Disaster Law

In an environmental disaster, a disaster causes environmental harm, or an environmental change causes an acute risk to humans, or a combination of both takes place. Examples include the BP oil spill, the London killer fog of 1952, the 2003 European heat wave, and the 2011 Japanese tsunami. Climate change will intensify the connection between disaster issues and the environment. Given the interwoven nature of disasters and the environment, we should consider what environmental law and disaster law can learn from each other. Environmental law has the most to teach disaster law about risk management and prevention. Disaster law, in contrast, directs attention to issues of unequal risk exposure and to compensation as a supplement to risk mitigation. I. INTRODUCTION The worst natural disaster to strike the developed world in modern history came upon us within the past ten years.1 On reading this, Americans may instantly think of Hurricane Katrina or of the most recent disaster in Japan but, measured in terms of loss of life, Katrina was far less serious than a catastrophe that quietly struck Europe in 2003. Leaving tens of thousands dead, the summer of 2003 was the hottest in at least five hundred years.2 A high pressure area sat over Western Europe, preventing cooler air from the Atlantic from entering.3 Temperatures reached extraordinary heights. The summer weather in Geneva was similar to the normal summer in Rio de Janeiro.4 In August, temperatures in parts of Italy were over fifteen degrees Fahrenheit warmer than the preceding year; in Portugal, temperatures were over 104 degrees for many days, while, for the first time in its history, London recorded temperatures of over a hundred degrees.5 The prolonged heat was catastrophic. Estimates of the total number of deaths begin at thirty thousand and run as high as fifty thousand.6 In rough terms, the heat wave's death toll was equivalent to ten to fifteen 9/11 incidents, or fifteen to twenty- five Katrinas. In Paris alone, there were over twelve hundred deaths.7 The estimate for France as a whole was over fourteen thousand.8 The biggest risk factors were "being a woman 75 years old and older and living alone at home."9 In addition to its health impacts, the heat wave also impacted agriculture and caused numerous forest fires, destroying over 640,000 hectares of forest (roughly 2500 square miles, an area about the size of Delaware).10 The heat wave was extreme compared to historical temperatures, but less abnormal compared to recent decades because of the longterm increase in very hot days in Europe.11 Although it is impossible to say whether climate change "caused" this particular heat wave, it is possible to ask whether climate change increased the likelihood of such a heat wave. Scientists have concluded that "past human influence has more than doubled the risk of European mean summer temperatures as hot as 2003" and that "the likelihood of such events [is] projected to increase 100-fold over the next four decades."12 This Article focuses on environmental disasters like the 2003 heat wave. We can consider environmental disasters to be in two categories: one that destroys important environmental amenities or one that causes harm to human interests via an environmental change.13 The 2003 European heat wave damaged natural systems and, at the very least, was made much more likely due to humanmade changes in the Earth's atmosphere. Other examples, as we will see in Part III, include the BP oil spill, the London killer fog of 1952, the 2011 Japanese tsunami, and (less obviously) the destruction of New Orleans in the aftermath of Hurricane Katrina. The BP oil spill easily fits both criteria: it was harmful to natural ecological systems, and the harm was caused by water pollution. Although it would not be hard to add to the list, these examples alone prove the importance of the topic. Environmental disasters fall in the intersection between disaster law and environmental law. …