Category: Law

There is an interesting difference between the basic pattern that crime and security legislation tend to follow, after passage, when compared with the development of environmental laws. In general, crime and security legislation is too strong at the outset: it exaggerates a particular risk (say, youth violence) and then creates draconian measures intended to counter it. Generally, the measures are less effective than expected and there are virtual always harmful side effects not fully anticipated by the drafters of the law. Often, the courts compel the evolution of such laws into more pragmatic vehicles that strike a better balance between mitigating a problem and creating new ones, such as abuses of authority.

Environmental laws, by contrast, often start out weak and riddled with loopholes. As they operate, people realize that they do have the power to mitigate the target problem, are they are often tightened to that effect. Usually, costs turn out to be lower than the opponents of the law claimed they would be at the outset; after all, opponents of environmental legislation know that scaring politicians with talk of economic destruction and job losses is an effective approach to blocking stricter environmental rules.

A major difference between the two, I think, has to do with the psychology of politicians. Nobody wants to be seen to be ‘soft on crime’ or insufficiently committed to fighting terrorism. In either case, there is a big downside risk if you oppose a law and then the problem it targeted gets worse. Since environmental outcomes are usually less clear (and less closely observed by voters), that is less of a risk when it comes to opposing environmental regulations.

There is also the flawed by widely accepted view that there is a trade off between economic and environmental health. You rarely hear politicians opposing tough crime or security legislation by evoking such a notion of ‘balance.’ While air pollution kills far more people than terrorism, the point is rarely raised in political forums. In order to improve environmental outcomes – and deal with the major threat of climate change – it seems necessary to improve the risk perceptions of both politicians and the public at large, as well as the sophistication of the debate about public policy issues.

Helpfully, the World Trade Organisation (WTO) has made it clear that members can use border tax adjustments to deal with other jurisdictions that lack carbon pricing. For instance, steelmakers that are subject to a domestic carbon tax or cap-and-trade scheme could have their profitability protected from steelmakers in unregulated jurisdictions, through the use of an import tax.

The standard WTO position on environmental rules is that they are fine if applied equally to both domestic and international firms. For instance, you can require that both domestic fishers and those trying to sell imported fish use nets that are designed not to catch sea turtles. What you cannot do is impose the restriction on foreign firms in other WTO countries, but not impose it on domestic firms. Of course, as with all international legal issues, the practicalities of implementation and enforcement are complex.

More discussion of the statement is on the Free Exchange blog.

During the course of our extended discussion on the ethics of travel, given climate change, the idea came up that living in a high-carbon society has similar ethical characteristics to living under an unjust regime. For instance, an aggressive totalitarian state that attacks its neighbours. In both cases, people are born into the society without any say in its character. In both cases, people can become aware of the harm their society is causing to others. In both cases, individuals face the question of how to respond to the injustice.

Right now, our society is engaged in harming future generations for our own personal and economic self-interest. We are doing so by emitting greenhouse gases that profoundly threaten the quality of life of future generations. In a way, it is as though we are mining the health, welfare, and prosperity of those who will come after us, so that we can continue to live in the way to which people have become accustomed.

While living in such a society probably creates moral obligations to assist those who are being harmed, and who will be harmed in the future, it does seem like the primary moral impetus is that of resistance. Given that our society operates in a fundamentally unjust way, those of us who have come to understand this have an obligation to change the nature of that society. Obviously, there are a wide variety of possible approaches – everything from working to reduce your personal impact to working to reform government from within to armed insurrection. Similarly, there are a wide variety of personal costs that may be borne by those who choose to act. They might sacrifice more lucrative careers for ones which offer more scope for promoting societal change. They might give up luxuries that they and others once took for granted. They may bear even more acute costs, if they choose to resist in less socially acceptable ways. For instance, those who climb buildings to deploy banners – or who choose to protest peacefully in places where governments have forbidden it – could find themselves facing legal consequences.

Rather than seeing the problem of responding to climate change as an exercise in personal harm reduction, it may make more sense to think about it as an exercise in driving societal reform, through whatever means seem to be effective and ethically acceptable.

Is the above a sensible framework for thinking about climate change? Is it preferable to an ethic that calls upon us primarily to reduce our own emissions? In what ways are the ethical obligations that arise from a ‘resistance’ view different from those that arise from an ‘abstinence’ perspective?

Over at Grist, there is a discussion about whether human rights are a useful perspective for thinking about climate change, as well as how they might be applied at the legal or institutional level to improve climate change outcomes. For instance, future generations could be appointed guardians within the legal system, in the same way in which children have legal guardians appointed to represent them in court.

The idea is a nice one, but it overlooks the degree to which legal and political decisions largely emerge as the products of political and economic influence, neither of which is possessed by future generations, within today’s political system. As such, these guardians would likely end up unpopular (for trying to block projects that would benefit those living and influential now) and powerless (for the lack of a real constituency to back them).

My general position on human rights is that they do not have moral force in and of themselves – they are just a shorthand way of encouraging good outcomes. For instance, it is the consequences of protecting free speech that make it a moral imperative to do so, not some metaphysical characteristic embedded in human beings. As with other areas of ethical thinking, human rights can be a useful heuristic when dealing with climate change, but what really matters is developing the mechanisms of thinking and action that will prevent the worst possible outcomes, while also seeking to secure the complimentary benefits that could accompany a global transition to carbon neutrality.

In a very depressing piece of analysis, Grist columnist Gar Lipow argues that the Waxman Markey climate change bill emerging in the US will do worse than nothing, when it comes to dealing with greenhouse gas emissions. This is because of how it issues permits (downstream, rather than upstream), its problematic use of offsets, and the fact that most permits (80%) will be given away, rather than auctioned.

Lipow concludes that: “Because of the flaws I’ve mentioned, it essentially requires no emission reduction in practice for at least a decade. Any short term benefits come from non cap-and-trade provisions, such as the Renewable Energy Standard.”

Muddled climate policies that get captured by industry are a major danger, throughout the developed world. Unless you get the details right, it is easy for carbon pricing policies to give a huge amount of money to the dirtiest polluters, increase consumer prices, and fail to effectively mitigate emissions. While it is urgent to begin mitigation, it is also necessary to note the trade-off between a quick and deeply flawed approach and a slower but less problematic one. To begin with, we need policies like the Vienna Convention on Substances that Deplete the Ozone Layer: too weak, but not hopelessly flawed. Additional political and scientific work turned that instrument into the relatively effective Montreal Protocol. If we don’t display wisdom and overcome entrenched interests in drafting climate policies, we risk blocking the chances of any such progression in climate legislation.