Jump to Navigation
Jump to Content

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

August 2010

Citation: 40 ELR 10749

Issue: 8

Author: Richard J. Lazarus

During the next four years, the new President, Barack Obama, and the new Congress are expected to join together in the first serious effort in the United States to enact sweeping national legislation to address global climate change. If they are successful, federal climate change legislation will be the first major environmental protection law in almost two decades, dating back to the Clean Air Act Amendments of 1990. Given the enormity of the undertaking necessary to address climate change, the passage of federal climate change legislation will rival in historic significance 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. The inherent problem with such lawmaking moments, however, is just that: they are moments. What Congress and the President do with much fanfare can quickly and quietly slip away in the ensuing years. This is famously so in environmental law.

This Article's central thesis is that making it easy for subsequent 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 authority to anticipate and respond in the first instance to the dynamic nature of lawmaking and its related challenges. To be sure, current lawmakers may well be making it more difficult for future legislators and agency officials to substitute their views of sound policy for the judgment of past lawmakers. 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 different purpose of safeguarding the ability of future generations, including their elected representatives, to have far greater control over their own lives. This is an especially legitimate basis for imposing lawmaking restraints notwithstanding their undemocratic effects.

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.

Download Article >>>