Comment on Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future

• Date: 01 August 2010

40 ELR 10760 ENVIRONMENTAL LAW REPORTER 8-2010

R E S P O N S E

Comment on Super Wicked Problems

and Climate Change: Restraining

the Present to Liberate the Future

by Mary D. Nichols

Mary D. Nichols was appointed by Gov. Arnold Schwarzenegger as the Chairman of the California Air Resource

Board in July 2007 and previously held that position under Gov. Jerry Brown from 1978 to 1983. Among

other positions, she served as the Assistant Administrator for Air and Radiation in the U.S. Environmental

Protection Agency under President Bill Clinton, as Secretary for California’s Resources Agency under Gov. Gray

Davis, and as Director of the University of California, Los Angeles, Institute of the Environment.

Perhaps Congress should throw up its hands and move

on to something more manageable than global cli-

mate change. Richard Lazarus asserts that the chal-

lenges of enacting eective national strategies for mitigating

and adapting to changes in the Earth’s climate are not just

“wicked,” but “super w icked,” meaning they defy resolu-

tion.1 He enumerates seemingly insurmountable challenges,

such as “the absence of a n existing institutional framework

of government with the ability to develop, implement, and

maintain the laws necessary to address a problem of climate

change’s tremendous spatial and temporal scope.”2 Ima gine

trying to design a house to last decades without studs, beams

or columns.

Fortunately, our federal lawmakers are not as ill-equipped

for the climate challenge as Lazarus’ article might suggest. In

fact, they already have at hand a sturdy, time-tested frame to

support a good part of the United States’ response to climate

change. Congress engineered it 40 years ago in the form of

the Clean Air Act (CAA or the Act).3 at landmark law

and its subsequent amendments incorporate several of the

“precommitment strategies”4 and other designs that La zarus

recommends for eective federal climate legislation.

Congress amended the Act substantia lly only twice since

1970.5 is fact alone attests to the law’s strengt h of being

1. Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the

Present to Liberate the Future, 40 ELR (E’ L.  P’ A. R.) 10749,

10750 (Aug. 2010) (a longer version of this Article was originally published at

94 C L. R. 1153 (2009)).

2. Id.

3. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

4. Lazarus, supra note 1.

5. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399

(1990); Clean Air Act Amendments of 1977, Pub. L. No. 95-95, §1, 91 Stat.

685 (1977).

at once exible and protective against powerful short-term

impulses to unravel it .6

One of the greatest successes of the CAA has been its abil-

ity to catalyze innovation that achieves emission reductions

faster and more cheaply than industr y had expected. Rigor-

ous performance-based standards with long lead times and

phase-in periods have allowed industry to unleash its engi-

neering ingenuity on emission controls and implement them

cost-eectively.

I have studied, implemented and worked with the CAA

for more than 30 years. As a state air agency ocial f rom

a state that has often taken its own path and made giant

strides toward clean air since the 1970s, I have many ideas for

improvement. In my experience, the Act has proven extraor-

dinarily eective in protecting the health and prosperity of

our nation. And I have every reason to believe that it will

play a vital role in addressing climate change. e Act oers

the best available strategies to accelerate the nation’s transi-

tion to clean, ecient and secure energy. e most developed

and deployable of these measures —those aecting vehicles,

fuels and power plants—are also the ones most important to

launch as soon as possible. President Obama’s Administration

took the rst step earlier this year in putting the nation’s rst

limits on greenhouse gas emissions from passenger vehicles.7

Regulations under the CA A could complement a market-

based program to reduce greenhouse gas emissions. E co-

nomic analyses of the California climate program show that

an economy-wide cap-and-trade system or a similar market

approach is needed to achieve our state’s emission reduction

targets, and to do so cost-eectively; traditional controls sim-

ply cannot adequately cover the full range and depth of car-

6. See Lazarus, supra note 1, at 10749.

7. Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Aver-

age Fuel Economy Standards, 49 C.F.R. §§531, 533, 537 (2010).

Author’s note: e views expressed in this Article are the author’s views

and not those of the Board or of the state of California.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.