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Climate change may soon have its “lawmaking moment” in the United States. 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 for environmental law. Subsequent legislative amendments, limited budgets, appropriations riders, interpretive agency rulings, massive delays in rulemaking, and simple nonenforcement are more than capable of converting a seemingly uncompromising legal mandate into nothing more than a symbolic aspirational statement. Climate change legislation is especially vulnerable 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 benefits many decades and sometimes centuries later. To be successful over the long term, climate change legislation will need to include institutional design features that insulate programmatic implementation to a significant extent from powerful political and economic interests propelled by short-term concerns. Such design features should include a variety of asymmetric precommitment strategies, which deliberately make it hard (never impossible) to change the law in response to some kinds of concerns while simultaneously providing avenues for change in response to other longer term concerns that are in harmony with the law’s central purpose—to achieve and maintain greenhouse gas emissions reductions over time. The traditional objection to lawmaking precommitment strategies—that the present should not be allowed to bind future lawmakers—also has little force in the climate change context, where the purpose of such strategies is not to protect the present at the expense of the future, but the precise opposite: to protect the future at the expense of the present.

Publication Citation

94 Cornell L. Rev. 1153-1234 (2009)