• 31 July 2009

Institutional Design for Lawmaking and Climate Change: Restraining the Present to Liberate the Future

Richard J. Lazarus - Georgetown University Law Center

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During the next four years, the new President, Barack Obama, and new Congress are expected to join together in the first serious effort in the United States to enact sweeping national legislation to address global climate change.  If they are successful, federal climate legislation will be the first major environmental protection law in almost two decades, dating back to the Clean Air Act Amendments of 1990.  Indeed, given the enormity of the undertaking necessary to address climate change, the passage of federal climate change legislation will rival in historic significance one of the nation’s greatest “lawmaking moments”—the passage in the 1970s of a series of extraordinarily demanding and sweeping pollution control and natural resource conservation laws.

The inherent problem with such lawmaking moments, however, is just that: they are “moments.”  What Congress and the President do with much fanfare can slip quickly and quietly away in the ensuing years.  This is famously so for environmental law.  Subsequent legislative amendments, limited budgets, appropriation riders, interpretive agency rulings, massive delays in rulemaking, and simple nonenforcement are more than capable of converting a seemingly uncompromising legal mandate into nothing more than a symbolic aspirational statement.  In short, what Congress and the President give, they are just as easily able to take away.

The critical lesson for climate change legislation is that the pending lawmaking moment must include the enactment of provisions specifically designed to maintain the legislation’s ability to achieve its long-term objectives.  Climate change legislation is peculiarly vulnerable to unraveling over time for a variety of reasons, but especially because of the extent to which it imposes costs on the short term for the realization of benefits many decades and sometimes centuries later.  Because of its fundamentally redistributive character, there will invariably be politically and economically powerful interests unhappy with its short-term costs seeking to relax the law’s requirements either formally or informally.  The erosion will be quiet, yet far-reaching in effect.  It will happen in the chambers of Congress, in the form of compliance extensions, budgetary shortfalls, appropriation riders, and earmarks, and it will happen in the vast hallways of the federal bureaucracy, in the form of delays in the promulgation of regulations, agency interpretations of statutory mandates as non-mandatory, generous agency settlements, and simple non-enforcement of the law.

It is therefore not enough for Congress to enact a law that mandates tough, immediate controls on greenhouse gas emissions.  Nor is it enough for Congress to build into the new law strong economic incentives that render more palatable the changes in business and individual behavior necessary to accomplish those mandates and promote overall economic efficiency.  Much more is necessary.  Like much legislation, for climate change legislation to be successful, the new legal framework must simultaneously be flexible in certain respects and steadfast in others.  Flexibility is necessary to allow for the modification of legal requirements over time in light of new information.  Steadfastness or “stickiness” is important to maintain the stability of a law’s requirements over time.  The need for both is just far greater for climate change legislation.  Flexibility is essential for climate change legislation in light of the enormity of the undertaking, both in its temporal and spatial reach, and the surrounding uncertainty concerning the wisdom of specific regulatory approaches.  Yet the basic legal framework and legal mandate must also be sufficiently steadfast to be maintained over the long term notwithstanding an unrelenting barrage of extremely powerful short-term economic interests that will inevitably seek that mandate’s relaxation.

To that end, the law will need to include institutional design features that allow for such flexibility, but insulate programmatic implementation to a significant extent from powerful political and economic interests propelled by short-term concerns.  Such design features will include “precommitment strategies,” which deliberately make it hard (never impossible) to change the law in response to some kinds of concerns.  They will also simultaneously provide avenues for change in response to other longer-term concerns that are in harmony with the law’s central purpose to achieve and maintain greenhouse gas emission reductions over time, thus addressing concerns that are otherwise less likely to have a powerful voice in lawmaking fora.

Directed to all three branches of government, such institutional design features should therefore be deliberately asymmetric, making it easier to change the law in one substantive direction rather than another.  Like the classic children’s board game “Chutes and Ladders,” the design of climate change law should include chutes that make it harder for the government to make certain kinds of changesand ladders that make it easier to make other kinds of changes and to achieve the overall statutory purpose over time.

Climate change law should further include a series of other structural features deliberately designed to keep the statute on track over time, particularly within the executive branch.  Congress could design some measures to insulate agency officials from certain political pressures, especially those likely derived from short-term economic concerns, which seek to undermine the law’s effectiveness.  Congress could craft other measures to enhance the influence on the law’s administration of interest groups concerned about protecting future generations, but which would otherwise lack the necessary economic or political clout.  Possible techniques include requirements for consultation with other agencies, scientific advisory committees, and stakeholders more insulated from short-term political pressures; statutory and regulatory hammers and judicial review provisions that ensure timely implementation; and preemption triggers that accommodate the prerogatives of competing sovereigns while also exploiting the resulting tension as leverage to further climate change policy.

The obvious objection to any such deliberate modifications of lawmaking processes, especially those that make future lawmaking more difficult, is that they are antidemocratic.  They allow the views of existing majorities to trump the views of future majorities who may well view sound public policy very differently.  The present always tends to believe that it may well be wiser than those who came before them or those who will come after them, and the risk is too great that allowing such restraints on future lawmaking will allow the present in its own self-interest to control the future.  The shorthand reference to this objection, of course, is that the deadhand of the past or present should not be able to govern the future.

There are, however, at least three compelling reasons for why these concerns are not persuasive as applied to the need for substantial lawmaking restraints in federal climate change legislation.  The first is that such restraints, notwithstanding their seemingly anti-democratic implications, have a long and accepted history in domestic law, ranging from the Constitution’s organization of the House and the Senate to a host of existing federal statutes that seek to insulate somewhat certain decisions from politics.  Hence, rather than suggest a departure from the nation’s lawmaking traditions, at the very least, they fall well within them.  Second, the lawmaking restraints in federal climate change legislation would be deliberately asymmetric to further the options ultimately available to future generations, not to restrict them.  There is existing skewing in lawmaking, particularly of the undue influence exercised by certain interests groups at the expense of others.  The kind of institutional lawmaking design features contemplated for federal climate legislation would  seek to address that existing skewing and therefore ultimately foster, rather than undermine, the fundamental values underlying representative government.

The final justification relates to the sheer practicalities of failing to address over the longer term the threats now posed by climate change.  Most simply put, preserving the ability of future majorities to retain the full range of options necessary for self-government most likely depends on climate change legislation capable of maintaining greenhouse gas emission reductions over the longer term.  Otherwise, current lawmakers will be undercutting the autonomy of future majorities by subjecting them to a natural environment that sharply curtails their options.  In other words, cross-temporal majority effects will occur with or without climate change legislation.  The question is not whether to have such cross-temporal impacts, but which ones.  To the extent, therefore, that lawmaking restraints are a necessary component of climate change legislation that can provide future majorities with greater opportunities, they further, rather than undermine, democratic norms.  It would therefore be tragic, indeed, to posit that protection of the political prerogatives of the future precludes current generations from adopting laws that seek to preserve future generations’ options.  Sometimes lawmaking limits do weaken the future, but sometimes they strengthen it instead.

The challenge to develop the right mix of precommitment strategies is considerable, and the risk that any particular one could be perversely hijacked can never be eliminated.  But through the asymmetric hurdles and shortcuts described above, Congress could diminish the risk of short-term pressures undermining its legislation and increase the chance that future generations’ concerns willnot be forgotten during the decades required to achieve the law’s ambitious objective.  That would be truly momentous.dingbat


Copyright © 2009 Cornell Law Review.

Richard J. Lazarus is Professor of Law at Georgetown University Law Center.

This Editorial is based on the following full-length Article:   Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 CORNELL L. REV. 1152 (2009).

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