Tuesday, March 13, 2012

A Couple of Inchoate Thoughts on Climate Policy

1. Each day my Google Reader account accumulates all kinds of news and opinion pieces about climate change and policy, and I have the impression that, in recent months, an increasing percentage of the coverage concerns what I would define as "doomsday" scenarios (discussions of potential climate catastrophes without specification of their relative (im)probabilities). Is this a strategy for increasing public attention to and support of climate mitigation policies? If so, I'm not so sure it's a good idea. Bombarding policy makers and the public with forecasts of doom and gloom does not seem to spur action, but merely make folks throw up their hands in despair. Moreover, when those doom and gloom stories are exposed as highly unlikely, the motivation to take serious action to tackle climate change is likely to be undercut. This is not to say that climate catastrophes are not lurking; they are and should be dealt with directly by efforts to minimize their probability of occurrence. Again, I'm not convinced that focusing on doom and gloom stories, which are too often based on analyses that are goal-driven rather than data-driven, helps move us in the right direction.

2. Some, if not all, of my fellow legal scholars working on climate change issues seem to me overly optimistic about the ability of law and legal reform to resolve those issues. I am happy to stipulate that law will be an important component of any social scheme that, however (in)effectively, will mitigate climate change or facilitate climate adaptation. But I'm much less optimistic that law can or will play a leading role in climate policy. At best, it will be an important device (and not the only one) through which inherently political policies will be implemented, and economic incentives created. Reliance on the courts strikes me as an especially dubious (even pathetic) strategy, given the relatively conservative role they have always played in environmental policy. Even on the few occasions when the courts have supported climate policy, as with the Supreme Court's 2007 decision in Massachusetts v. EPA, the presumed importance of the outcome is belied by the political reality that EPA's regulations of greenhouse gases are not likely to accomplish much, even assuming that Cass Sunstein, the head of the Office of Information and Regulatory Affairs in the President's Office of Management and Budget, ever signs off on them. And only faith-based lawyers and legal scholars could believe that the tort system is somehow capable of dealing effectively with the problem. While climate change certainly presents legal challenges, and climate solutions necessarily will have legal components, the presumption that law is somehow at the center of this problem strikes me as naive, and reflects an all too common insularity of legal thinking.

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