A Reply

• Date: 01 August 2010
• Author: Richard J. Lazarus

40 ELR 10766 ENVIRONMENTAL LAW REPORTER 8-2010

R E P L Y

A Reply

by Richard J. Lazarus*

I

am grateful to all three commenters for taking the time

to read and comment on the excerpt in this publication

of my article, Super Wicked Problems and Climate Change:

Restraining the Present to Liberate the Future.1 I am also grate-

ful to the organizers of the Environmental Law and Policy

Annual Review Conference, co-sponsored by the Environ-

mental Law Institute and Vanderbilt University School of

Law, for providing me with t his additional opportunity to

reply to the comments.

My reply is directed exclusively to one of the three com-

ments, no doubt because it is the most provocative. e com-

ment by Keith Cole, Director of Legislative and Regulatory

Aairs at General Motors, certainly should win the prize for

best title: Geniuses Versus Zombies: To Address Climate for the

Long Haul, Empower the Innovators, but Don’t Disinter the

“Dead Hand.” In describing my article’s recommendations,

Cole’s comment claims that “like zombies from a bad movie,

these proposals would stalk future generations, replacing their

wisdom with the decisions of the (potentially long-dead) legis-

lators of today.”2 I applaud a good turn of phrase—like Cole’s

here—and was a big fan of the classic 1960s horror ick, Night

of the Living Dead,3 which Cole’s comment strongly evokes.

But I think this critique is fundamentally misguided.

1. Cole’s comment ra ises a fa lse question. e question

is not wheth er present generation s will stalk the futu re; the

question is how. If we do not enact globa l climate change

legislation capable of addressing the problem in a mean-

ingf ul and sustained way over time, we risk leaving futu re

generations with an atmosphere so loaded with greenhouse

gases that there is little that they can do ab out it. If the

current scientic consensus about the impact s of those

gases is t rue, those future generations will suer poten-

tial ly devast ating consequence s. Now, that’s stalk ing! And,

irrever sible sta lking.

On the other hand, any precommitment strategies that

Congress decides to use now to reduce the chances of that

1. 94 C L. R. 1153 (2009). See Keith Cole, Geniuses Versus Zombies: To

Address Climate for the Long Haul, Empower the Innovators, but Don’t Disinter

the “Dead Hand,” 40 ELR (E’ L.  P’ A. R.) 10757 (Aug. 2010);

Mary D. Nichols, Comment on Super Wicked Problems and Climate Change:

Restraining the Present to Liberate the Future, 40 ELR (E’ L.  P’

A. R.) 10760 (Aug. 2010); Jeanette M. Soares, Solving the Super Wicked

Problem of Climate Change: How Restraining the Present Could Aid in Establish-

ing an Emissions Cap and Designing Allowance Auctions, 40 ELR (E’ L. 

P’ A. R.) 10763 (Aug. 2010).

2. Cole, supra note 1, at 10758.

3. See N   L D (Karl Hardman & Russell Streiner 1968).

happening will not be similarly irreversible. If those strate-

gies, described in my article, turn out to be a huge mistake,

Congress can change the law. e purpose of precommit-

ment strategies is to ma ke it harder to cha nge t he law, but

never impossible to do. If new information is developed that

shows that greenhouse gases are actua lly funda mentally

good for humank ind and the natural environment and not,

as most scientists currently suggest, extremely harmfu l, I am

not the least bit worried t hat there will be insucient pres-

sure from powerful political constituencies to change the law.

Nor is there anything remotely radical or fundamentally

antidemocratic about the idea of ma king it harder for pow-

erful politica l constituencies to change the law. Precommit-

ment strategies have a long, established pedigree in U.S. law.4

e Constitution is full of them. For instance, on the one

hand, we do not allow ourselves to elect the same person to

be President more than twice. On the other hand, we do not

allow ourselves to remove the President unless he or she is

impeached by the House of Representatives and convicted by

the Senate, based on a supermajority vote. e Bill of Rights

is one big set of precommitment strategies designed to make

it ha rd to enact certain kinds of laws. e Framers of the

Constitution and the Drafters of the Bill of Rights under-

stood how the collision of long and short-term interests can,

absent certain safeguards, create the risk of poor and destruc-

tive lawmaking.5

Congress and the President have likewise long understood

this risk and promoted laws and lawmaking processes, based

on precommitment strategies, to reduce that risk. at is

why, at the turn of the 20th century, President Woodrow

Wilson and William Jennings Bryan came up with t he

remarkable lawmaking innovation called the Federal Reserve

System.6 ey understood the limits on Congress’ ability to

address certain complexities of a then-emerging national

economy. President Wilson, not coincidentally himself a

scholar of political science, appreciated the need to insu late

some kinds of lawmaking processes from the hurly burly

of daily political life. e se are also lessons that Congress

has not forgotten in recent years. One sees a nalogous uses

of precommitment strategies in the crafting of the federal

militar y base closures a nd health information privacy laws.7

In each, legislators understood why the short- and long-term

dimensions of a particular problem deed easy lawmak ing

4. Lazarus, supra note 1, at 1195-1200.

5. Id. at 1199.

6. Id. at 1203-04.

7. Id. at 1201-02.

* Professor Lazarus requested the opportunity to submit a reply to the

responses to his article

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