Many people and businesses in the United States will receive market and nonmarket benefits from climate change as it moves forward over the next one hundred years. Speaking of climate change benefits is not for polite “green” conversation, but ignoring them—as climate policy dialogue and legal scholarship consistently have—will not make them go away. It is important to take climate change benefits into account if they lead people and businesses to believe that climate change will not be so bad for them, or even to believe it could make them better off. Thus, whereas legal scholars have devoted considerable attention to how law and policy should respond to the prospect of vast numbers of climate change losers, this Article is the first to ask what law and policy should do about the climate change winners.
Part I of the Article develops a policy-relevant typology of climate change benefits and beneficiaries, showing their potential to be diverse, widely dispersed, and significant in magnitude. Part II defines who qualifies as climate change winners and examines how climate change benefits are likely to lead many people and businesses to conclude they are winners, in that they believe they are or will be better off because of climate change. Part III frames the prospect of a class of climate change winners in the political economy of climate policy, arguing that people and businesses will fall into vastly different climate impact profiles that will lead to an even more complex and contested climate policy dynamic. Using the background developed in Parts I through III, the remainder of the Article turns to normative dimensions and positive legal responses. Part IV argues that the inevitable emergence of climate change winners cautions against using cost-benefit analysis to guide climate change mitigation policy. Mitigation policy, in other words, should ignore climate change winners by design, not by default. By contrast, Part V argues that climate change adaptation policy should embrace climate change winners by making efficient investments to harness climate change benefits that increase resilience and reduce vulnerability to climate change. Part VI argues, however, that given the goal of mitigation policy eventually to arrest climate change, legal doctrine must ensure that climate change winners secure no vested rights in their climate change benefits.