Richard Lazarus' analysis of climate change as a "super wicked" problem and discussion of precommitment strategies as a solution offer innovative ideas that could strengthen a future cap and trade law "by increasing the law's ability to achieve its objectives over the long term" and "limiting the ability of future legislators and officials to undermine the statute's implementation." Furthermore, policymakers should consider precommitment strategies for a cap and trade law because some of the design features discussed in the article could effectively address the thorny issues associated with

I am grateful to all three commenters for taking the time to read and comment on the excerpt in this publication of my article, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future. I am also grateful to the organizers of the Environmental Law and Policy Annual Review Conference, co-sponsored by the Environmental Law Institute and Vanderbilt University School of Law, for providing me with this additional opportunity to reply to the comments.

I. Changing the Contours of American Law and of Federalism

In their article, Kyoto at the Local Level: Federalism and Translocal Organizations of Government Actors (TOGAS), Judith Resnik, Joshua Civin and Joseph Frueh describe the value of organizations they term "translocal organizations of governmental actors," or TOGAs, which "could be viewed as improving deliberative democracy because they bring in...

The authors of the current piece argue that "the Mayors Climate Protection Agreement illustrates that the notion of an exclusive, national authority to deal with issues deemed `foreign' cannot succeed." The argument is that while "rulemakers try to classify a set of problems as categorically national or local, the world in which they are operating belies the boundaries imposed." They see groups such as the U.S.

Since 2005, numerous plaintiffs have attempted to hold both the energy industry and vehicle manufacturers liable for the damages they have experienced and will experience as a result of climate change. Proceeding under common-law theories, particularly nuisance, these plaintiffs generally allege that the defendants they sue are major contributors to greenhouse gas (GHG) emissions, which ultimately lead to climate change and a myriad of associated harms ranging from increased coastal erosion in Alaska and Massachusetts to decreased snowpack in California. While the U.S.

Editors' Summary:

I was told that part of the reason I was invited to speak here was that I had given a warm welcome to participants at a recent "takings" program held at the Vermont Law School. The other reason was my involvement in the recent case from my circuit that my chambers has been in the habit of referring to as the "global warming" case, and which I think the legal community now knows as American Electric Power, or AEP, as I see it referred to in cases from time to time.

This report is intended for use by federal, state, and administrative judges who are confronted with a legal dispute involving a water resource that is alleged to be impacted by climate change. It may be useful as well for attorneys litigating or experts working on water adjudications. The purpose of this document is to summarize the manner in which climate change may impact rights and frameworks established under state and federal law concerning water resources and to anticipate the issues that water-related climate claims will pose to legal decisionmakers.

Virtually anyone with an interest in environmental policy is familiar with the allegations that traditional methods of statistical inference are biased against preventative environmental standards. They surely also know of the Precautionary Principle as the broad theory often cited by environmentalists to support this critique and to argue that regulated industries should bear the burden of proving that their products and activities are safe. This collision between scientific method and environmental principle has had great salience in environmental law and policy for many years.