Current approaches to addressing the negative impacts of climate change rely on collective capabilities. Welfare economics and contractualism, the two conventional perspectives that dominate the debate, support the pursuit of adaptive strategies such as large-scale geoengineering projects to reduce solar radiation or ameliorate sea-water inundation. In place of returning greenhouse gas emissions to natural levels, these approaches put the global climate system and compensation for losses resulting from climate change under the control of some group of fellow humans. In other words, they privilege mechanisms that increase each individual's dependence on a collective decisionmaker and decrease the individual's capacity to function on her own in the natural world. The climate change debate has ignored or overlooked this tremendous impact on individual capabilities and individual responsibility. Individualism does not seem to register as an important source of ethical considerations among the legal thinkers, policymakers, economists, and others who are influential in that debate.
This article seeks to remedy that void. It engages legal philosophy to excavate the relationship between individualism and environmental degradation, articulating the importance of individual capacities as part-and-parcel of our character, central to who we like to think we are or aspire to be. A commitment to individualist values requires recognition that climate change and its proposed solutions threaten a loss of individual capacity and individual responsibility that is a distinct and, in its own way, catastrophic kind of injury. The article concludes that concern about loss of individual responsibility justifies a stronger push for a rapid return to natural levels of greenhouse gases in the atmosphere than do most current analytical approaches and solutions. Individualist values support a race to the top, which demonstrates the feasibility of living in ways that produce less greenhouse gas emissions create a duty on the part of others to lower their emissions. Preserving a world in which individualism is a dominant feature requires maintaining greenhouse gas concentrations within the natural range for humankind.
[W]e must consider ... the danger of catastrophe that is created by the fact that technological progress is much more rapid than progress in developing and implementing methods of controlling the dangers that technology creates. Just compare scientific progress since 1800 with the progress in politics, law, and morals over the same period. Not that there hasn't been progress in those spheres.... It's just been slower.... (1)
--Richard A. Posner
ABSTRACT I. INTRODUCTION II. BACKGROUND A. Rising Greenhouse Gas Concentrations and Their Effect on the Energ, y Balance of the Earth B. Predicted Impacts in the Natural World C. Predicted Coping Mechanisms 1. Geoengineering as Adaptation to a Perturbed Climate System 2. Targeted Adaptations a. Adaptation to Sea Level Rise b. Adaptation to Disruption of Natural Water Supplies c. Adaptation to Extreme Weather Events d. Adaptation to Changing Agricultural Conditions e. Adaptation to Ecosystem Degradation f. Adaptation to Ocean Acidification III. AN INDIVIDUALIST PERSPECTIVE ON CLIMATE CHANGE A. Individualism 1. An Intuitive View of Individualism 2. What an Individualist Values B. Individualism and the Perils of Climate Change Adaptation 1. Geoengineering and Individualism 2. Alternative Adaptations and Individualism 3. Substitutes for the Natural World and the Ethics of Individualism IV. NEGATIVE RESPONSIBILITY AND THE CLIMATE CHANGE DEBATE A. The Terms of the Climate Change Debate B. The Individualist Critique V. LEGAL RESPONSES TO CLIMATE CHANGE VI. CONCLUSION I.
Current legal, economic, and policy approaches to addressing the negative impacts of climate change rely on the collective capabilities of the modern world. In place of returning greenhouse gas emissions to natural levels, these approaches, including the Copenhagen Accord of 2009, (2) put the global climate system and compensation for losses resulting from climate change under the control of some group of fellow humans. Welfare economics ("is it economical?") and contractualism ("is it fair?"), the two conventional perspectives' that dominate the debate, support the pursuit of adaptive strategies, such as large-scale geoengineering projects, to reduce solar radiation or ameliorate sea-water inundation. (3) Assuming geoengineering worked as intended, centralized decisionmakers would have the power to dial up climate conditions for the globe, as one does on a much smaller scale when setting the air conditioning in a car or house.
These approaches to human-induced climate change create conditions that undermine our ability to function as individuals in the natural world in which we evolved. They impact our fitness for individual agency and responsibility. Collective approaches to climate change demand collective decisionmaking institutions and accompanying legal regimes. (4) They privilege legal and. institutional mechanisms that increase each individual's dependence on a collective decisionmaker and decrease the individual's capacity to function on her own in the natural world. The impact of human-induced climate change is significant because loss of fitness for individual responsibility is part-and-parcel of a modification in our character, in who we are. Fitness for individual responsibility goes hand-in-hand with a certain kind of individualist agency, which is Central to who we like to think we are or aspire to be. Loss of such fitness goes hand-in-hand with loss of individualist agency. (5) The loss of fitness for individual responsibility is a distinct and, in its own way, catastrophic kind of injury. (6)
Climate change poses a unique threat to individualist values. With respect to other aspects of modern life, opting out is possible, if extremely difficult. We can choose not to put ourselves in a position where our risk of getting salmonella poisoning is the responsibility of the system, of the government, of nameless bureaucrats who should have inspected the produce that found its way to us from Guam. We each can buy from local growers and inspect their farming practices, or perhaps even grow some of our produce ourselves. Likewise, we have a choice with respect to some localized pollutants. We can inhale others' carbon monoxide emissions, making our health dependent on the decisions of innumerable car drivers, car manufacturers, and bureaucrats wielding cost-benefit analyses to decide just how many deaths and respiratory illnesses to allow. Alternatively, without radical displacement, we likely can find a place with little traffic congestion. (7) In short, in both instances, we can create conditions in our fives that make us fit for individual responsibility.
Climate change, though, is different. One cannot escape climate change and the ideas that the experts have about managing the climate system for the good of the whole. Impacts will be experienced globally. If our land is being submerged, it is impossible to simply disregard the odd notions of negative responsibility that certain experts hold, and devote ourselves to producing each of our own good, dealing with natural climate conditions with our own individual resources. Individualist considerations, then, should be a critical component of the ethical debate over climate change solutions.
Yet meaningful discussion of individualist considerations in the broader climate change context is completely lacking. (8) The non-binding Copenhagen Accord of 2009 (9) relies on adaptation strategies and large-scale international and state-controlled financing to address impending losses to resources and populations in developing countries resulting from climate change. (10) Fitness for individual capacity does not seem to register as an important source of ethical considerations among the legal thinkers, policymakers, economists, and other experts who are influential in that debate. A foundation needs to be laid for deeper thinking about the relationship between individualism and climate change.
But what resources does individualism, and in particular an individualist view of the law, have at its disposal to cope with the complex problem of climate change? This article suggests key considerations that bear on the proper response. First, concern about loss of individual responsibility justifies a stronger push for a rapid return to natural levels of greenhouse gases in the atmosphere than does the perspective of negative responsibility. In addition, a number of options that the experts tend to reject out-of-hand look far more sensible if individualist values are included in the climate change debate. Those options include, for example, bans on particular technologies (e.g., a ban on the construction of pulverized coal fired power plants, which necessarily emit high levels of greenhouse gases). They would also include a modified federal cap-and-trade program in which the states are allowed to continue to impose more stringent requirements and, having demonstrated that those standards do not affect major disruption, can petition the federal government to revise federal standards in accord with the state's standard.
More generally, individualist values support a race to the top, in which demonstrations of the feasibility of living in ways that produce less greenhouse gas emissions create a duty on the part of others to lower their emissions. Though as a practical matter such a level might not be reached, or at least might not be reached in any of our lifetimes, the top would be a level of emissions consistent with maintenance of greenhouse gas concentrations within the natural range sustained, until recently, through all of human existence.
The outline of the article is as follows. Part II discusses background facts about climate...