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

• Date: 01 August 2010

8-2010 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 40 ELR 10749

A R T I C L E

Super Wicked Problems and

Climate Change: Restraining the

Present to Liberate the Future

by Richard J. Lazarus

Richard J. Lazarus is the Justice William J. Brennan Jr., Professor of Law and the Faculty Director of the Supreme

Court Institute at Georgetown University. He has published articles and books on a wide variety of environmental

law topics, with the challenges of environmental lawmaking serving as a frequent theme in his scholarship.

During the next four years, the new President, Barack

Obama, and the new Congress are expected to join

together in the rst serious eort in the United States

to enact sweeping national legislation to address global climate

change. If they are successful, federal climate change legisla-

tion will be the rst major environmental protection law in

almost two decades, dating back to the Clean Air Act Amend-

ments of 1990.1 Given the enormity of the undertaking neces-

sary to address climate change, the passage of federal climate

change legislation will rival in historic signicance 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.

e inherent problem with such lawmaking moments,

however, is just that: they are moments. What Congress and

the President do with much fa nfare can quickly and quietly

slip away in the ensuing years. is is famously so in envi-

ronmental law.2

is Article’s central thesis is that making it easy for sub-

sequent lawmakers to unravel, undermine, or even formally

change existing law is not always desirable, and it is certainly

not an essential feature of our democratic lawmaking system.

Lawmakers should instead be understood as possessing the

1. Pub. L. No. 101-549, 104 Stat. 2399 (codied in scattered sections of 42

U.S.C.).

2. See Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative

Compliance in Environmental Law, 23 H. E. L. R. 297, 298-99

(1999); see also Richard J. Lazarus, Congressional Descent: e Demise of Delib-

erative Democracy in Environmental Law, 94 G. L.J. 619, 638-52 (2006).

authority to anticipate and respond in the rst instance to the

dynamic nature of lawmaking and its related challenges. To

be sure, current lawmakers may well be mak ing it more dif-

cult for future legislators and agency ocials to substitute

their views of sound policy for the judgment of past law-

makers. Current lawmakers would not be doing so to enrich

themselves at the expense of future generations. Instead, given

the potentially catastrophic consequences of failing to reduce

greenhouse gas emissions over the longer term, they would be

acting for the very dierent purpose of safeguarding the abil-

ity of future generations, including their elected representa-

tives, to have far greater control over their own lives. is is an

especially legitimate basis for imposing lawmaking restraints

notwithstanding their undemocratic eects.

e critical lesson for climate change legislation is that the

pending lawmaking moment must include the enactment of

provisions specically designed to maintain the legislation’s

ability to achieve its long-term objectives. Climate change

legislation is peculiarly vu lnerable to being unraveled 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 benets many decades and sometimes centuries

later. Because of its fundamentally redist ributive character,

there will invariably be politically and economically power-

ful interests, unhappy with the short-term costs of climate

change legislation, seeking to relax the law’s requirements

either formally or informal ly. 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 incen-

tives that render more palatable the changes in business

and individual behavior necessary for those mandates to be

accomplished and promote overall economic eciency.

Much more is needed. For climate change legislation to be

successful, the new legal framework must simultaneously be

exible in certain respects and steadfast in others. Flexibility

is Article is excerpted from the Cornell Law Review, 94 C

L. R. 1153 (2009), and is reprinted with permission.

Author’s note: A paper presented at the International Studies

Association 48th Annual Convention in Chicago on March 2, 2007,

rst introduced me to the notion of characterizing climate change as a

“super wicked problem.” See infra note 6 and accompanying text.

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