Editors' Summary

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.

It may seem unfair, in the wake of the Massachusetts election and Citizens United, to look with hindsight at Richard Lazarus' recommendations for drafting federal climate legislation, but given that those recommendations are specifically designed to insulate the legislation from the vicissitudes of time, it is perhaps less so in this instance. It is hard not to conclude that controversial procedural innovations are the last thing we need to add onto this legislation.

Perhaps Congress should throw up its hands and move on to something more manageable than global climate change. Richard Lazarus asserts that the challenges of enacting effective national strategies for mitigating and adapting to changes in the Earth's climate are not just "wicked," but "super wicked," meaning they defy resolution.

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.