Solving the Super Wicked Problem of Climate Change: How Restraining the Present Could Aid in Establishing an Emissions Cap and Designing Allowance Auctions
| Date | 01 August 2010 |
| Author |
8-2010 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 40 ELR 10763
R E S P O N S E
Solving the Super Wicked
Problem of Climate Change: How
Restraining the Present Could Aid
in Establishing an Emissions Cap
and Designing Allowance Auctions
by Jeanette M. Soares
Jeanette Soares is a graduate of Dartmouth College and Georgetown University Law Center. She
is currently a senior sta attorney with the Oce of the General Counsel at the U.S. Government
Accountability Oce, where her work focuses on climate change and Indian issues.
Richard Lazarus’ analysis of climate change as a “super
wicked” problem and discussion of precommitment
strategies as a solution oer innovative ideas that
could strengt hen a future cap and trade law “by increasing
the law’s ability to achieve its objectives over t he long term”
and “limiting the ability of future legislators and ocials
to u ndermine the statute’s implementation.”1 Furthermore,
policymakers should consider precommitment strategies
for a cap and trade law because some of the design features
discussed in t he art icle could eectively address t he thorny
issues associated with the establishment of an emissions cap.
In addition, Lazarus’ approach could facilitate the resolution
of key design issues for emission allowance auctions, some of
which ex isting cap and trade programs have already faced.
Specically, a statutorily prescribed standard triggered by
a subsequent executive branch agency nding could a ssist
in establishing the emissions cap and the use of a modied
stakeholder council could contribute to the design of emis-
sion allowance auctions.
I. Statutorily Prescribed Standard
Triggered by Subsequent Agency Finding
Accurate information on current and historical greenhouse
gas emissions is critical to establishing the emissions cap and
ensuring that emission reductions relative to a baseline occur.
1. Richard J. Lazarus,
, 40 ELR (E’ L. P’ A. R.) 10749,
10752 (Aug. 2010) (a longer version of this Article was originally published at
94 C L. R. 1153 (2009)).
When the European Union Emissions Trading Scheme (EU
ETS) began, member states did not have historical emissions
data for specic facilities and, in some cases, did not have
national laws and regulations in place that required reporting
of emissions.2 Member states had to use aggregate level and
voluntarily reported emissions data as well as projections of
future emissions to establish their emission caps for Phase I
of the EU ETS, which ran from 2005 to 20 07.3 As a result,
the cap exceeded actual emissions in Phase I by more than
3%.4
While most experts agree that the United States would
not face the same d ata limitations and challenges in estab-
lishing an emissions cap as the EU ETS member states did,
the emissions cap can still be set too high.5 For example,
northeastern states participating in the Regional Greenhouse
Gas Initiative (RGGI) used available historic emissions data
from the electricity generating sector to establish the pro-
gram’s emissions cap but the economic downturn and other
factors resulted in actual emissions that are much lower than
the cap.6 is overallocation of allowances could threaten the
RGGI’s environmental integrity because, unlike Phase I of
2. U.S. G’ A O, I C C P-
: L L F E U’ E T
S K P’ C D M 15-
17 GAO-09-151 [hereinafter GAO-09-151], available at http://www.gao.gov/
new.items/d09151.pdf.
3. Id. Phase I is often referred to as a pilot phase.
4. Id. at 17.
5. Id. at 26-27. Lack of data will be less of a concern because of the mandatory
greenhouse gas reporting rule required by Pub. L. No. 110-161, tit. II (2007).
See Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 56260 (Oct. 30,
2009).
6. Beth Daley, , B G,
Jan. 3, 2008, at 1A.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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