The Department of Defense (DoD) is the largest employer in the world, owns and operates an enormous global real estate portfolio, and emits more Greenhouse Gases (GHGs) than many nations. Entrusted with the national security, the DoD is now threatened by a new enemy—climate change. Climate change imperils national security infrastructure while undermining the military’s capacity to respond to climate-driven disasters at home and abroad. However, legal scholarship has yet to address what I call “the law of national security adaptation” and related questions. For example, how do environmental and climate change laws apply to the U.S. military? What laws can be employed to safeguard military installations from rising seas, extreme weather, and other climate risks?
This Essay addresses these questions, inspired by my experience as an environmental attorney in Norfolk, Virginia—home to the largest navy base in the world. I first describe how climate change has become a new “environmental enemy” that threatens national security property around the globe. Second, I describe and analyze how the law of national security adaptation has developed to apply to environmental law and property law to encompass climate adaptation efforts on military installations. In doing so, the law of national security adaptation brings together constitutional law, an amalgamation of executive branch directives and regulations, and climate legislation designed to safeguard military infrastructure. Last, I argue that insights for climate adaptation more generally can be gleaned from the military’s experience addressing climate change. Somewhat surprisingly, congressional action on national security adaptation has been a beacon of bipartisanship. It has kept the climate adaptation “flame” alive when climate action was being extinguished elsewhere. The law of national security adaptation thus offers broader, normative insights for adaptation efforts outside the military fence line.
This Essay is published as part of the Northwestern University Law Review’s online essay series. The 2022 topic is “Climate Change & Infrastructure: Existential Threats to Our Built Environment.”
Associate Professor of Law, Emory University School of Law. Prior to academia, he served for twenty years in the U.S. Navy in the rank of commander as both a tactical jet aviator and environmental lawyer (JAG). He previously served as the Sharswood Fellow at the University of Pennsylvania Law School, Associate Professor at Syracuse University College of Law, and Class of 1971 Distinguished Professor of Leadership & Law at the U.S. Naval Academy in Annapolis, Maryland. He thanks Jack Kirkpatrick, Sara Zdeb, and the generous funding of Emory University School of Law for research assistance and support.
Copyright 2023 by Mark Nevitt
Cite as: Mark Nevitt, Climate Change and the Law of National Security Adaptation, 118 Nw. U. L. Rev. Online 126 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1335&context=nulr_online.