CASPER
THE FRIENDLY GHOST
Don't blow the precautionary principle out of proportion
he conclusion of the global warming conference yielded in the 11th hour the new Copenhagen Accord, which seeks to establish a roadmap for future coordinated actions on climate control. At the political level, this Accord is best understood as a variation of that legal curiosity known as an agreement to agree. The parties "underline" their view that climate change ranks as "one of the greatest challenges of our time," and pledge to take steps to keep any increase in global temperature below 2 degrees Celsius. The vital question of the allocation of responsibilities are left largely untapped, save for the important caveat that each nation pledges internationally to keep its own domestic commitments.
The political agreement treats the commitment to "deep cuts" in global warning as being "required according to science." But it gives little hint on how it views "the science." It does not specify either the probability that the earth’s temperatures will exceed the 2 degree Celsius barrier or how much man-made emissions will drive that. Nor does it explain why huge commitment of resources should be made now on a problem whose status is heavily debated in the literature, to say the least.
How then to get a handle on these critical issues of probability and timing? Unlike many writers on this vast topic, I start small. First take simple two-party disputes, master them and then work up to global issues. Thus in an everyday nuisance suit between private parties over sewage and odors, the key question involves the choice of remedy for future and uncertain harms. The usual response of the tort law follows libertarian lines. Hold off on government remedies until needed. So don't shut down a defendant's mine or mill until the threat of harm is actual or imminent.
But once that threshold is crossed, take a quick and firm response. Full damages must be paid for completed harms, and a quick injunction should be routinely issue, which tolerates very little delay in stopping or abating the harm producing activity. The ripple effects are positive. Once a potential polluter knows that its goose will be cooked, it will take prudent steps to stay out of harm's way.
Localized pollution, however, gets a very different response under most deliberations in a regulatory setting. Taking a leaf from our own Clean Air Act, the dominant approach today insists on engineering in safety at the front end, so no new productive activity is permitted until its risks are documented and controlled, come what may. In environmental circles, this approach goes under the name of the precautionary principle because of how it approaches two forms of error. It rates the risk of future pollution as far higher than the risk that government regulation will stop beneficial activities in their tracks.
This simple weighting of risk, so influential in thinking about global warming, is wrong on two counts. Writing before Copenhagen in the New York Times, Thomas Friedman put a novel twist on the doctrine by invoking the soaring rhetoric of former Vice President Dick Cheney. Cheney insisted that a 1% risk that al-Qaida could obtain nuclear weapons justified super strong action against them. A conservative icon is thus turned into the poster child for the trade regulation of carbon dioxide and other green house gases.
Let the buyer beware! Any serious evaluation of expected utility on any topic has to look at the full range of future events. Analysts must sign to all future scenarios a probability of occurrence and a measure of consequences, positive or negative. Working out these calculations is so hard that we are right to seek out short cuts--but not those that harp on the 1% solution.
So Cheney had to be aware that aggressive intervention could reduce the chance of al-Qaida getting nukes, only to result in an increased radicalization of Islamic culture elsewhere that might speed, say, the Iranians to build a bomb instead. The precautionary principle is useless when each of two opposite courses of action at the 1% threshold could have deadly effects.
Ditto for climate change, even after Copenhagen. Start with two brute facts that point in opposite directions. First, the global temperatures over the last decade have been higher than any in recent times. Bad news. Second, the temperatures in the last decade have decreased slightly during that same period notwithstanding an increase in carbon dioxide concentrations on the order of 15%. Not so bad news. At the very least, the urgency of Copenhagen’s near doomsday scenario rests on predictions of rapid and substantial global temperature increases that haven’t panned out.
In these cases, the precautionary principle has the capacity to lead us astray. Weak models of climate change could easily be consistent with a 1% chance of global cooling, against which GHGs might offer a modest buffer. In any event, our 10-year grace period favors resorting to the common law approach. Take some time to get more knowledge and to develop better technologies to fend off greenhouse gases. Put nuclear power more firmly in the mix and attack GHGs other than carbon dioxide first.
By all means, moreover, remember that the Copenhagen Accord lets the Chinese and Indian keep on their current track, at which point any deep U.S. cuts in GHGs are at best a side story. The U.S. must commit internationally to implement its domestic program by Jan. 31, 2010. There should be a lot of soul searching in the interim.
Richard A Epstein is the James Parker Hall Distinguished Service Professor of Law, The University of Chicago; the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution and a visiting law professor at NYU Law School.
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he conclusion of the global warming conference yielded in the 11th hour the new Copenhagen Accord, which seeks to establish a roadmap for future coordinated actions on climate control. At the political level, this Accord is best understood as a variation of that legal curiosity known as an agreement to agree. The parties "underline" their view that climate change ranks as "one of the greatest challenges of our time," and pledge to take steps to keep any increase in global temperature below 2 degrees Celsius. The vital question of the allocation of responsibilities are left largely untapped, save for the important caveat that each nation pledges internationally to keep its own domestic commitments.
The political agreement treats the commitment to "deep cuts" in global warning as being "required according to science." But it gives little hint on how it views "the science." It does not specify either the probability that the earth’s temperatures will exceed the 2 degree Celsius barrier or how much man-made emissions will drive that. Nor does it explain why huge commitment of resources should be made now on a problem whose status is heavily debated in the literature, to say the least.
How then to get a handle on these critical issues of probability and timing? Unlike many writers on this vast topic, I start small. First take simple two-party disputes, master them and then work up to global issues. Thus in an everyday nuisance suit between private parties over sewage and odors, the key question involves the choice of remedy for future and uncertain harms. The usual response of the tort law follows libertarian lines. Hold off on government remedies until needed. So don't shut down a defendant's mine or mill until the threat of harm is actual or imminent.
But once that threshold is crossed, take a quick and firm response. Full damages must be paid for completed harms, and a quick injunction should be routinely issue, which tolerates very little delay in stopping or abating the harm producing activity. The ripple effects are positive. Once a potential polluter knows that its goose will be cooked, it will take prudent steps to stay out of harm's way.
Localized pollution, however, gets a very different response under most deliberations in a regulatory setting. Taking a leaf from our own Clean Air Act, the dominant approach today insists on engineering in safety at the front end, so no new productive activity is permitted until its risks are documented and controlled, come what may. In environmental circles, this approach goes under the name of the precautionary principle because of how it approaches two forms of error. It rates the risk of future pollution as far higher than the risk that government regulation will stop beneficial activities in their tracks.
This simple weighting of risk, so influential in thinking about global warming, is wrong on two counts. Writing before Copenhagen in the New York Times, Thomas Friedman put a novel twist on the doctrine by invoking the soaring rhetoric of former Vice President Dick Cheney. Cheney insisted that a 1% risk that al-Qaida could obtain nuclear weapons justified super strong action against them. A conservative icon is thus turned into the poster child for the trade regulation of carbon dioxide and other green house gases.
Let the buyer beware! Any serious evaluation of expected utility on any topic has to look at the full range of future events. Analysts must sign to all future scenarios a probability of occurrence and a measure of consequences, positive or negative. Working out these calculations is so hard that we are right to seek out short cuts--but not those that harp on the 1% solution.
So Cheney had to be aware that aggressive intervention could reduce the chance of al-Qaida getting nukes, only to result in an increased radicalization of Islamic culture elsewhere that might speed, say, the Iranians to build a bomb instead. The precautionary principle is useless when each of two opposite courses of action at the 1% threshold could have deadly effects.
Ditto for climate change, even after Copenhagen. Start with two brute facts that point in opposite directions. First, the global temperatures over the last decade have been higher than any in recent times. Bad news. Second, the temperatures in the last decade have decreased slightly during that same period notwithstanding an increase in carbon dioxide concentrations on the order of 15%. Not so bad news. At the very least, the urgency of Copenhagen’s near doomsday scenario rests on predictions of rapid and substantial global temperature increases that haven’t panned out.
In these cases, the precautionary principle has the capacity to lead us astray. Weak models of climate change could easily be consistent with a 1% chance of global cooling, against which GHGs might offer a modest buffer. In any event, our 10-year grace period favors resorting to the common law approach. Take some time to get more knowledge and to develop better technologies to fend off greenhouse gases. Put nuclear power more firmly in the mix and attack GHGs other than carbon dioxide first.
By all means, moreover, remember that the Copenhagen Accord lets the Chinese and Indian keep on their current track, at which point any deep U.S. cuts in GHGs are at best a side story. The U.S. must commit internationally to implement its domestic program by Jan. 31, 2010. There should be a lot of soul searching in the interim.
Richard A Epstein is the James Parker Hall Distinguished Service Professor of Law, The University of Chicago; the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution and a visiting law professor at NYU Law School.
Read more Forbes Opinions
Opinions, Commentary, and Video Views at Forbes.com...
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