Climate change justice

Climate Change Justice

Volumn , Issue , 2010, Pages 1-220

  Posner, Eric A ^a   Weisbach, David ^a  

^a NONE

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References (205)

1. There are few book-length treatments of the ethical issues connected to climate change. For recent and thoughtful treatments of the issue, see Steve Vanderheiden, Atmospheric Justice (2008);
2. James Garvey, The Ethics of Climate Change: Right and Wrong in a Warming World (2008).
3. A number of ethical studies are collected in Fair Weather, Equity Concerns in Climate Change (Ferenc L. Toth, ed., 1999).
4. The reports by the International Panel on Climate Change contain discussions of ethical issues in a variety of places, most prominently in its Working Group III report, pages 142-47.
5. Bert Metz, et al., Climate Change 2007, Mitigation of Climate Change
6. Donald Brown, American Heat: Ethical Problems and the United States' Response to Global Warming (2002);
7. Michael Grubb, Seeking Fair Weather: Ethics and the International Debate on Climate Change, 71 International Affairs 463 (1995);
8. Dale Jamieson, Global Responsibilities: Ethics, Public Health and Global Environmentall Change, 4 Indiana Journal of Global Legal Studies 99 (1998);
9. Henry Shue, Subsistence Emissions and Luxury Emissions, 15 Law and Policy 39 (1993);
10. Martino Traxler, Fair Chore Division for Climate Change, 28 Social Theory and Practice 101 (2000);
11. we cite some of this and other work in later chapters but we do not aim to be comprehensive.
12. Jonathan Wiener has made a similar point in a series of articles and books. See Jonathan Wiener and Richard Stewart, Reconstructing Climate Policy: Beyond Kyoto (2003);
13. Jonathan Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale Law Journal 677 (1999);
14. Jonathan Wiener, Climate Change Policy, and Policy Change in China, 55 UCLA Law Review 1805 (2008).
15. IPCC Reports, Climate Change 2007 (2007), available at www.ipcc.ch.
16. Eileen Claussen and Lisa McNeilly, Equity and Global Climate Change: The Complex Elements of Global Fairness, Pew Center on Global Climate Change (October 29, 1998);
17. Marina Cazorla and Michael Toman, International Equity and Climate Change Policy: Resources for the Future, Climate Issue Brief 27 (December 2000);
18. United Nations Environment Program, Vital Climate Change Graphics 14 (February 2005), available at grida.no/publications/bf/climate2;
19. Ambuj D. Sagar, Wealth Responsibility, and Equity: Exploring an Allocation Framework for Global GHG Emissions, 45 Climate Change 511 (June 2000);
20. Paul Baer, et al., Equity and Greenhouse Gas Responsibility, 289 Science 5488 (29 September 2000), available at http://www.climate-talks .net/2004-ENVRE130/PDF/20000929-Science-Equity.pdf.
21. World Resources Institute, Climate Analysis Indicator Tools (CAIT), available at http://cait.wri.org. Total GHG Emissions in 2000 with land use change (most recent land use data available).
22. Working Group I Report: The Physical Science Basis, IPCC Fourth Assessment Report 95, Climate Change 2007 (2007);
23. David Archer, Global Warming: Understanding the Forecast, Part I: The Greenhouse Effect (2007).
24. Except where specifically stated otherwise, all of the emissions data in this chapter are from the World Resources Institute, Climate Analysis Indicator Tool, available at www.cait.wri.org (accessed February 2009).
25. It is possible that we might be able to increase greenhouse gas sinks.
26. Working Group III Report: Mitigation of Climate Change, IPCC Fourth Assessment Report 27, Climate Change 2007 (2007), available at www .ipcc.ch/pdf/assessment-report/ar4/wg3/ar4-wg3-ts.pdf. (Lists 2004 global emissions at 49 gigatons, with significant uncertainty for emissions from methane, nitrous oxide, and from agriculture and forestry.)
27. James Hansen, et al., Global Temperature Change, 103 Proceedings of the National Academy of Sciences 14288 (September 26, 2006), available at www. pnas.org/content/103/39/14288.full.pdf.thtml.
28. Makiko Sato, GISS Surface Temperature Analysis, NASA Goddard Institute for Space Studies (2009), available at http://data.giss.nasa.gov/gistemp/graphs/.
29. David Archer, The Long Thaw 43 (2009).
30. Synthesis Report, IPCC Fourth Assessment Report 39, Climate Change 2007 (2007), available at www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_ syr.pdf.
31. Nicholas Stern, The Economics of Climate Change, The Stern Review, (2006).
32. See Martin L .Weitzman, On Modeling and Interpreting the Economics of Catastrophic Climate Change, Review of Economics and Statistics 1 (2009).
33. Nebojsa Nakicenovic and Rob Swart, eds., IPCC Special Report on Emissions Scenarios (2000).
34. Climate Change: Small Island Developing States, UNFCCC (2005); Working Group II: Impacts, Adaptation and Vulnerability, IPCC Fourth Assessment Report, Climate Change 2007 (2007).
35. William D. Nordhaus and Joseph Boyer, Warming the World (2000).
36. Mark Lynas, Six Degrees: Our Future on a Hotter Planet (2008).
37. Ferenc Toth, State of the Art and Future Challenges for Integrated Environmental Assessment 4 Integrated Assessment 250 (2003).
38. For an interactive map showing the spread of malaria, see Impacts of Climate Change: Disease Spread, Scientific American; available at http://www .sciam.com/page.cfm?section=climate-map.
39. Richard S. J. Tol and Hadi Dowlatabadi, Vector-borne Diseases, Development and Climate Change, 2 Integrated Assessment 173 (2001).
40. Article 3, Section 1: Principles, UNFCCC, Full Text of the Convention, available at http://unfccc.int/essential_background/convention/background/items/1355.php.
41. Essential Background; Actors in the Negotiation Process, Article 3, Section 1;
42. Article 4, Sections 1-3 and 9, UNFCCC, Full Text of the Convention, available at http://unfccc.int/essential_background/feeling_the_heat/items/2915 .php.
43. Hans-Werner Sinn, Public Policies against Global Warming: A Supply Side Approach, 15 International Tax and Public Finance 4 (2008).
44. Timothy Juliani, Senior Fellow at the Pew Center on Global Climate Change, Climate Change: Renewing U.S. Leadership in Challenging Times, Camden Conference (2009);
45. Joyeeta Gupta and Michael Grubb, Climate Change and European Leadership: A Sustainable Role for Europe? (2000);
46. President Barack Obama's speech to Governors Global Climate Summit promising global leadership on climate change (November 18, 2008).
47. Zhong Xiang Zhang, Meeting the Kyoto Targets: The Importance of Developing Country Participation, 26 Journal of Policy Modeling 3 (2004).
48. Lawrence H. Goulder and Ian H. Parry, Instrument Choice in Environmental Policy, 2 Review of Environmental Economics and Policy 152 (2008);
49. Working Group III: Mitigation of Climate Change, IPCC Fourth Assessment Report, chapter 13, Climate Change 2007 (2007);
50. Handbook of Environmental Economics, chapter 10 (2003);
51. Nicholas Stern, The Economics of Climate Change: The Stern Review, Parts 4, 5 (2007).
52. Jonathan Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale Law Journal 677 (1999);
53. Jonathan Wiener and Richard B. Stewart, Reconstructing Climate Policy: Beyond Kyoto (2003).
54. Wiener and Stewart argue that permits allow us to pay off China but taxes do not.
55. Charles Kolstad and Michael Toman, The Economics of Climate Policy,Handbook of Environmental Economics 1561 (Karl Goran-Maler, ed., 2005);
56. Garrett Hardin, The Tragedy of Commons, 13 Science 3859 (December 1968);
57. J. B. Ruhn, et al., The Tragedy of Ecosystem Services, 58 Bioscience 969 (2008).
58. See Gilbert Metcalf, Federal Tax Policy Toward Energy, 21 Tax Policy and the Economy 145 (2007).
59. For a discussion, see Michael Wara, Measuring the Clean Development Mechanism's Performance and Potential, 55 UCLA Law Review 1759 (2008);
60. UNFCCC, Clean Development Mechanism In Brief (2008);
61. Nancy Kete, Designing the Clean Development Mechanism to Meet the Needs of a Broad Range of Interests, World Resources Institute (2000).
62. Nicholas Stern, The Economics of Climate Change, 98 American Economic Review Papers and Proceedings 536 (2008).
63. Many others make similar claims. See, e.g., Ross Garnaut, The Garnaut Climate Change Review 197 (2008).
64. FY 2008 International Affairs Congressional Budget Justification, U.S. 2008 Budget, available at http://www.state.gov/f/releases/iab/c21508.htm.
65. William Chameides and Michel Oppenheimer, Carbon Trading over Taxes, 315 Science 1670 (March 23, 2007).
66. Cedric Philibert, Price Caps and Price Floors in Climate Policy: A Quantitative Assessment, IEA Information Paper (OECD/IEA, December 2008).
67. Timothy Lenton, et al., Tipping Elements in the Earth's Climate System, 105 Proceedings of the National Academy of Sciences 1786 (February 12, 2008).
68. William Pizer, Climate Change Catastrophes, Resources for the Future, Discussion Paper 03-31 (May 2003).
69. See Geoffrey Heal and Bengt Kristom, National Income and the Environment, in 3 Handbook of Environmental Economics, chapter 22 (Karl-Goran Maler and Jeffrey Vincent, eds., 2005).
70. Similar arguments apply to carbon offsets. See http://www.cheatneutral .com/.
71. See Elizabeth Anderson, Value in Ethics and Economics (1995).
72. Our account of the Kyoto Protocol and its reception follows Cass R. Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 31 Harvard Environmental Law Review 1 (2007).
73. Miranda A. Schreurs and Yves Tiberghien, Multi-Level Reinforcement: Explaining European Union Leadership in Climate Change Mitigation, 7 Global Environmental Policy 19 (2007).
74. See William D. Nordhaus and Joseph Boyer, Warming the World: Economic Models of Global Warming, chapter 8 (2000).
75. Senate Resolution 98, available at http://thomas.loc.gov/cgi-bin/query/D?c105:3:./temp/~c105Fhqpms.
76. Table 2.1 of Annual European Community Greenhouse Gas Inventory 1990-2006 and Inventory Report 2008, EEA, available at http://www.eea .europa.eu/publications/technical_report_2008_6.
77. Kathryn Harrison and Lisa McIntosh Sundstrom, The Comparative Politics of Climate Change, 7 Global Environmental Policy 4, 13 (2007).
78. See UNFCCC, National greenhouse gas inventory data for the period 1990-2005, at 9 (October 24, 2007).
79. The European Union Emissions Trading Scheme, Insights and Opportunities, pp. 2, 7, Pew Center on Global Climate Change, available at http://www.pewclimate.org/docUploads/EUETS%20White%20Paper.pdf.
80. Questions and Answers on Emissions Trading and National Allocation Plans (2005), available at http://europa.eu/rapid/pressReleasesAction.do? reference=MEMO/05/84&format=HTML&aged=1&language=EN&guiLanguage=en.
81. A. Danny Ellerman and Barbara K. Buchner, The European Union Emissions Trading Scheme: Origins, Allocation, and Early Results, 1 Review of Environmental Economics and Policy 66, 72 n. 9 (2007).
82. Emissions Trading: Strong Compliance in 2006, Emissions Decoupled from Economic Growth (2007), available at http://europa.eu/rapid/pressReleases Action.do?reference=IP/07/776&format=HTML&aged=0&language=EN&guiLanguage=en.
83. Emissions Trading: 2007 Verified Emissions from EU ETS Businesses (2008), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/787&format=HTML&aged=0&language=EN&guiLanguage=en.
84. The European Carbon Market in Action: Lessons from the First Trading Period 12 (2008), available at http://www.caissedesdepots.fr/IMG/pdf_ 08-03-25_interim_report_en.pdf.
85. Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading system of the Community 7 (2008), available at http://ec.europa.eu/environment/climat/emission/pdf/com_2008_16_en.pdf.
86. For a critical discussion of this and related lawsuits, see Eric A. Posner, Climate Change and International Human Rights Litigation: A Critical Appraisal, 155 University of Pennsylvania Law Review 1925 (2007);
87. for a more optimistic assessment, see Jonathan Zasloff, The Judicial Carbon Tax: Reconstructing Public Nuisance and Climate Change, 55 UCLA Law Review 1827 (2008).
88. An important case decided just as this book went to press held that the political question doctrine does not apply to climate suits. See Connecticut V. American Electric Power Company, Inc., 2009 WL 2996729 (2nd Cir., 2009).
89. Congressional Budget Office, The Estimated Costs to Households From the Cap-and-Trade Provisions of H.R. 2454, Congressional Budget Office (June 19, 2009), http://energycommerce.house.gov/Press_111/20090620/cbowaxman markey.pdf.
90. See the various proposals by Brazil and other developing countries, collected in Daniel Bodansky, International Climate Efforts Beyond 2012: A Survey of Approaches, Pew Center on Global Climate Change (2000).
91. For a critical discussion of such claims, see Christopher Stone, Common But Differentiated Responsibilities in International Law, 98 American Journal of International Law 276 (2004).
92. Not all of the Annex I countries are wealthy, although most countries subject to significant restrictions under the Kyoto Protocol are.
93. Peter Singer, One World: The Ethics of Globalization 40 (2002);
94. see also Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change 78 (2008).
95. See, e.g., Joseph E. Stiglitz, Economics of the Public Sector 55, 92 (1986).
96. Thomas Schelling, What Makes Greenhouse Sense, Foreign Affairs (May/June 2002).
97. See Anthony Atkinson and Joseph Stiglitz, The Design of the Tax Structure-Direct versus Indirect Taxation, 6 Journal of Public Economics 55 (1976).
98. Others have argued that this point does not carry through to the climate setting. See Graciela Chichilnisky and Geoffrey Heal, Who Should Abate Carbon Emissions?: An International Viewpoint, 44 Economic Letters 443 (1994).
99. William Easterly, The White Man's Burden: Why the West's Efforts to Aid the Rest Have Done So Much Ill and So Little Good (2006).
100. Martin Weitzman, On Modeling and Interpreting the Economics of Catastrophic Climate Change, 91 Review of Economics and Statistics 1 (2009).
101. William Nordhaus, A Question of Balance 159 (2008).
102. See, e.g., Jiahua Pan, Common but Differentiated Commitments: A Practical Approach to Engaging Large Developing Emitters Under L20 (2004), available at http://www.l20.org/publications/6_5c_climate_pan1.pdf;
103. Peter Singer, One World: The Ethics of Globalization (2002);
104. Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change (2008).
105. We do not address whether there are legal challenges, specifically tort challenges, to greenhouse gas emissions. There is an extensive literature on this topic. See, e.g., Eduardo M. Penalver, Acts of God or Toxic Torts? Applying Tort Principles to the Problem of Climate Change, 38 Natural Resources Journal 563 (1998)
106. David A. Grossman, Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 Columbia Journal of Environmental Law 1 (2003)
107. David Hunter and James Salzman, Negligence in the Air: The Duty of Care in Climate Change Litigation, 155 University of Pennsylvania Law Review 1741 (2007).
108. For a discussion of the possibility of tort claims brought under the Alien Tort Statute, see Eric A. Posner, Climate Change and International Human Rights Litigation: A Critical Appraisal, 155 University of Pennsylvania Law Review 1925 (2007). However, the tort claim and the moral claim are overlapping.
109. Calculated from 1950, excluding land use change and excluding greenhouse gases other than carbon dioxide.
110. See, e.g., Daryl J. Levinson, Collective Sanctions, 56 Stanford Law Review 345 (2003)
111. Thomas Miceli and Kathleen Segerson, Punishing the Innocent along with the Guilty: The Economics of Individual versus Group Punishment, 36 Journal of Legal Studies 81 (2007).
112. Louis Kaplow and Steven Shavell, Fairness Versus Welfare 12 (2005).
113. For this reason, corrective justice claims will not be appealing to welfarists, who tend to think that corrective justice is relevant, if at all, because it serves as a proxy for what welfarism requires. We tend to think that welfarists are generally correct here but bracket that point and the associated complexities for purposes of discussion.
114. See, e.g., Daniel A. Farber, Basic Compensation for Victims of Climate Change, 155 University of Pennsylvania Law Review 1605, 1641 (2007).
115. U.S. Census Bureau, 2008 Populatiton Estimates, T6-2008, available at factfinder.census.gov.
116. See, e.g., H. D. Lewis, Collective Responsibility, in Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics 17 (Larry May, and Stacey Hoffman, eds., 1991).
117. Stephen Kershnar, The Inheritance-Based Claim to Reparations, 8 Legal Theory 243, 266 (2002)
118. (describing and criticizing these arguments). These arguments are often analogized to unjust enrichment arguments. See Eric A. Posner and Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 Columbia Law Review 689, 698 (2003).
119. In recent years, some philosophers have challenged traditional criticisms of collective responsibility, but these philosophers tend to ground collective responsibility in individual failures to act when action was possible and likely to be effective, and when the person in question knew or should have known that she could have prevented the harm. See, e.g., Larry May, Sharing Responsibility 1 (1992)
120. cf. Brent Fisse and John Braithwaite, Corporations, Crime and Accountability 50 (1993)
121. Christopher Kutz, Complicity: Ethics and Law for a Collective Age 166 (2000)
122. David Copp, Responsibility for Collective Inaction, Journal of Social Philosophy 71 (Fall 1991). These arguments do not carry over to the greenhouse gas case.
123. We might also think that Americans of, say, the last decade or two can be held responsible for their greenhouse gas emissions; because most of them are alive today, they might be considered obliged to provide a remedy.
124. Michael Saks and Peter Blanck, Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 Stanford Law Review 815 (1992).
125. Stephen R. Perry, Loss, Agency, and Responsibility for Outcomes: Three Conceptions of Corrective Justice, in Tort Theory 24 (Ken Cooper-Stephenson and Elaine Gibson, eds., 1993).
126. Matthew D. Adler, Corrective Justice and Liability for Global Warming, 155 University of Pennsylvania Law Review 1859 (2007).
127. One commentator suggests 1990 as a date for when emitting activities could have become negligent. See Pan, supra n.1, at 3-7. We put to one side the following questions: What if a consensus did not exist, but many experts believed that climate change was likely and that if it occurred, the damages would be massive? How should negligence be analyzed if there were (say) a 30 percent chance of enormous harm? In principle, the benefit-cost test might find negligence in such circumstances (if the discounted harm exceeded the cost of precautions).
128. See William Nordhaus, A Question of Balance (2008).
129. A vigorous argument in favor of such engagement can be found in Richard Stewart and Jonathan Wiener, Reconstructing Climate Policy: Beyond Kyoto 49-53 (2003).
130. Cf. Adrian Vermeule, Reparations As Rough Justice 15, University of Chicago Law School, John M. Olin Law and Economics Working Paper No. 260
131. University of Chicago Law School, Public Law and Legal Theory Working Paper No. 105), available at http://www.law.uchicago.edu/law-pdf/law-econ/260.pdf (explaining that rough justice might be the best justification for reparations).
132. Cf. Jacob T. Levy, The Multiculturalism of Fear 242 (2000). Levy argues that such people should feel shame about national failures, and not exactly that they have any moral obligations. However, the latter view seems to reflect many people's intuitions.
133. The number of authors arguing for this approach is large. For a small sampling, see, e.g., National Development and Reform Commission, People's Republic of China, China's National Climate Change Programme 58 (June 2007)
134. Anil Agarwal and S. Narain, Global Warming in an Unequal World: A Case of Environmental Colonialism (1991)
135. Tom Athanasiou and Paul Baer, Dead Heat: Global Justice and Global Warming (2002)
136. Ann Kizig and Daniel Kammen, National Trajectories of Carbon Emissions; Analysis of Proposals to Foster the Transition to Low-Carbon Economies, 8 Global Environmental Change 183 (1998)
137. Juan-Carlos Altamirano-Cabrera and Michael Finus, Permit Trading and Stability of International Climate Agreements, 9 Journal of Applied Economics 19 (2006)
138. A. D. Sagar, Wealth, Responsibility, and Equity: Exploring an Allocation Framework for Global GHG Emissions, 45 Climatic Change 511 (2000)
139. Peter Singer, One World: The Ethics of Globalization 35 (2002)
140. Hermann E. Ott and Wolfgang Sachs, The Ethics of International Emissions Trading, in Ethics, Equity, and International Negotiations on Climate Change 159 (Luiz Pinguelli-Rosa and Mohan Munasinghe, eds., 2002)
141. Malik Amin Aslam, Equal Per Capita Entitlements: A Key to Global Participation on Climate Change? in Building on the Kyoto Protocol: Options for Protecting the Climate 127 (Kevin A. Baumert, ed., 2002)
142. Donald Brown, American Heat: Ethical Problems with the United States' Response to Global Warming 214 (2002).
143. Michael Grubb, et al., Sharing the Burden, in Confronting Climate Change: Risks, Implications and Responses 270 (Irving M. Mintzer, ed., 1992).
144. The Law of the Sea Convention provides that such resources be divided "equitably"; however, that term has multiple meanings and is left undefined. See United Nations Convention on the Law of the Sea, Art. 140.
145. Under the status quo approach, the United States would be allocated about 20 percent of the permits. Under a per capita approach, the United States would be allocated about 5 percent of the permits (the U.S. share of the global population). Assuming that the price of a permit is $25 per metric ton of CO2 (the current price in the EU market) and enough permits are supplied to permit the output rate of 30 billion metric tons per year (roughly the current global rate), then moving from the status quo approach (6 billion tons) to the per capita approach (1.5 billion tons) would cost the United States about $112.5 billion per year. These are back-of-the-envelope calculations intended to give a rough sense of the magnitude involved, and should be taken with many grains of salt.
146. The number may be too high because nations can reduce their per capita emissions and hence, the net outflow. On the other hand, if per capita emissions increase, say because of economic development, the number will be too high.
147. The Garnaut Climate Change Review supports this approach and cites numerous governments and international commissions that do so as well. See Ross Garnaut, The Garnaut Climate Change Review 203 (2008).
148. We put to one side some prominent puzzles about the relationship between happiness and income. See Robert Frank, Luxury Fever (1992)
149. Richard Layard, Happiness (2004).
150. Matthew Adler and Eric A. Posner, New Foundations for Cost-Benefit Analysis (2005).
151. These effects are addressed in the law and economics literature on legal transitions. See, e.g., Louis Kaplow, An Economic Analysis of Legal Transitions, 99 Harvard Law Review 509 (1986).
152. This literature focuses on domestic law, where it is clearer than in the international context that a government that adopts certain policies or practices toward legal transitions-compensating or grandfathering those injured by the transition, for example-will affect the incentives of people to anticipate legal change. We extend this argument to the international setting; there is no reason to think that the differences in settings should affect the analysis. The transitions literature ignores what we have called "ex post efficiency," instead assuming that whatever legal change is introduced is dictated by efficiency. The environmental literature, by contrast, focuses on ex post efficiency (for example, the choice between permits systems and taxes) and generally although not always ignores ex ante issues. For a discussion, see Jonathan R. Nash, Allocation and Uncertainty: Strategic Responses to Environmental Grandfathering, unpublished manuscript 18-22 (2008).
153. In fact, development economists have gone so far as to identify a "resource curse": countries with valuable natural resources often do worse than those that lack them. See Richard M. Auty, Sustaining Development in Mineral Economies: The Resource Curse Thesis (1993).
154. David Dollar and Victoria Levin, The Increasing Selectivity of Foreign Aid, 1984-2003, 34 World Development 2034 (2006).
155. Hence, the scholarly support for banking systems under which any future climate treaty would reward states that make abatements efforts prior to treaty ratification. See, e.g., Ann P. Kinzig and Daniel M. Kammen, Natio Trajectories of Carbon Emissions: Analysis of Proposals to Foster the Transition to Low-Carbon Economies, 8 Global Environment Change 183 (1998).
156. See Kathryn Harrison and Lisa McIntosh Sundstrom, The Comparative Politics of Climate Change, 7 Global Environmental Policy 1 (2007).
157. See E. P. Thomson, Customs in Common: Studies in Traditional Popular Culture (1993).
158. UN Human Rights Council, Report of the Working Group on the Right to Development on its Eighth Session, UN Doc. A/HRC/4/47, 19 (2007).
159. These acknowledgments can be found, in vague terms, in such documents as UN General Assembly, Declaration of the Right to Development, Res. 41/28 (1986), and UN General Assembly, Vienna Declaration and Programme of Action, A/CONF.157/23 (1993).
160. On such agreements in general, see Cass R. Sunstein, Legal Reasoning and Political Conflict (1996).
161. The best evidence for this proposition is the pattern of foreign aid. Poor countries, understandably, do not provide foreign aid, but middle-income countries also do not seem to feel that they have a responsibility to help people living in poorer countries. Rich countries provide foreign aid but are not generous, and scholars have shown that much (but not all) foreign aid can be traced to specific strategic interests. See, e.g., Alberto Alesina and David Dollar, Who Gives Foreign Aid to Whom and Why? 5 Journal of Economic Growth 33, 55-6 (2000).
162. See OECD statistics, available at http://www.oecd.org/dataoecd/42/30/40039096.gif.
163. For a sophisticated demonstration of this problem, see Juan-Carlos Altamirano-Cabrera and Michael Finus, Permit Trading and Stability of International Climate Agreements, 9 Journal of Applied Economics 19 (2006).
164. They argue that equitable schemes are more likely to be unstable than "pragmatic" schemes that take account of relative economic power.
165. The literature is vast. Articles are collected in Discounting for Time and Risk in Energy Policy (1982)
166. Discounting and Intergenerational Equity (P. R. Portney and J. P. Weyant, eds., 1999)
167. Symposium, Intergenerational Equity and Discounting, 74 University of Chicago Law Review (2007).
168. The discount rate used in the Stern Review generated a number of comments. For a sample, see Martin Weitzman, A Review of the Stern Review, 45 Journal of Economic Literature 703 (2007)
169. William D. Nordhaus, A Review of the Stern Review on the Economics of Climate Change, 45 Journal of Economic Literature 686 (2007).
170. Nicholas Stern, The Economics of Climate Change (2007)
171. William Nordhaus, A Question of Balance (2008).
172. Working Group II: Impacts Adaptation, and Vulnerability, IPCC Fourth Assessment Report 823, Climate Change 2007.
173. Frank Ramsey, A Mathematical Theory of Savings, 38 Economic Journal 543 (1928).
174. Roy Harrod, Towards a Dynamic Economics (1948).
175. Tjalling C. Koopmans, On the Concept of Optimal Economic Growth, 28 Pontificae Academiae Scientiarum Scripta Varia 225 (1965).
176. This number is in the ballpark of current figures. See Cass R. Sunstein, Valuing Life: A Plea for Disaggregation, 54 Duke Law Journal 385 (2004) (listing a figure of $6.1 million).
177. This is not to say that the issues are not important. Because small changes in the discount rate can have large effects on project valuation, it is very important to get these issues right. They are, however, not central to our discussion.
178. Martin L. Weitzman, Why the Far-Distant Future Should Be Discounted at Its Lowest Possible Rate, 36 Journal of Environmental Economics and Management 201 (1998).
179. Thomas Sterner and U. Martin Persson, An Even Sterner Review: Introducing Relative Prices into the Discounting Debate, Resources for the Future Discussion Paper. Washington, DC: Resources for the Future (2007).
180. For summaries of this approach to discounting, see Nicholas Stern, The Economics of Climate Change (2007)
181. Geoffrey Heal, Intertemporal Welfare Economics and the Environment, in The Handbook of Environmental Economics 1106 (K-G. Maler and J. R. Vincent, eds., 2005).
182. This simplification is simply astonishing. Stern, for example, severely criticizes the positivists for requiring all kinds of specialized assumptions for the private rate of return to equal the social rate of return, but then imposes specialized functional forms. Stern, The Economics of Climate Change. Although the use of this functional form has a long history in public economics, it remains a specialized assumption.
183. See Anthony B. Atkinson, Measurement of Inequality, 2 Journal of Economic Theory 244 (1970).
184. We use $95 rather than $100 because the newly discovered environmental harm means that we (all generations together) are not as well off as we thought. It is as if we lost money. It is likely that all generations will need to share in this loss. The number is only illustrative and we take no position on whether it should be more or less than $100 because of the damages from climate change.
185. This is a simplification of the idea of distribution-neutral investment choice discussed in detail in Louis Kaplow, Discounting Dollars, Discounting Lives: Intergenerational Justice and Efficiency, 74 University of Chicago Law Review 79 (2007)
186. Dexter Samida and David Weisbach, Paretian Intergenerational Discounting, 74 University of Chicago Law Review 145 (2007).
187. For a review, see Kent Smetters, Ricardian Equivalence: Long-Run Leviathan, 73 Journal of Public Economics 395 (1999).
188. Robert C. Lind, A Primer on Major Issues Relating to the Discount Rate for Evaluating National Energy Options, in Discounting for Time and Risk in Energy Policy 21-4 (Robert C. Lind, ed., 1982)
189. Robert C. Lind, Analysis for Intergenerational Discounting, in Discounting and Intergenerational Equity (Paul R. Portney and John P. Weyant, eds., 1999).
190. Richard L. Revesz, Environmental Regulation, Cost-Benefit Analysis, and the Discounting of Human Lives, 99 Columbia Law Review 941 (1999).
191. See, e.g., W. Kip Viscusi, Fatal Tradeoffs (1994).
192. For discussion, see Cass R. Sunstein, Valuing Lives: A Plea for Disaggregation, 54 Duke Law Journal 385 (2004).
193. For a detailed discussion of this point, see Cass Sunstein and Arden Rowell, On Discounting Regulatory Benefits: Risk, Money, and Intergenerational Equity, 74 Chicago Law Review 171 (2007).
194. Derek Parfit, Reasons and Persons (1984).
195. See, e.g., Martha Nussbaum, Frontiers of Justice (2006).
196. See, e.g., Peter Singer, One World: The Ethics of Globalization (2002).
197. See James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (1986).
198. For relevant discussion, see Amartya Sen, Development as Freedom (2000).
199. See, e.g., Peter Singer, Famine, Affluence, and Morality, 1 Philosophy and Public Affairs 229 (1972).
200. Utilitarianism is a particular form of welfarism. Welfarism in general is a belief that the value of a policy depends on the effects of aggregate welfare. Many different forms of aggregation are consistent with welfarism. Utilitarianism is a belief that aggregate welfare should be measured by the sum of the welfare of individuals.
201. Probably the closest precedent was the abolition of the slave trade, which was mainly the work of one nation-Great Britain-which exploited its control of the sea.
202. The two problems will, in practice, be intertwined because nations will claim that they are not free-riding; they will say that the treaty does not make them better off. Because of the difficulties in calculating the costs of emissions reductions and the local benefits of climate change abatement, it will be difficult to refute such claims.
203. H.L.A. Hart, Are There Any Natural Rights? 64 Philosophical Review 185 (1955)
204. John Rawls, Legal Obligation and the Duty of Fair Play, in Law and Philosophy: A Symposium (Sidney Hook, ed., 1964).
205. Robert Nozick has objected to these arguments. See Robert Nozick, Anarchy, State, and Utopia (1974), chapter 5, using as an example, an obligation to contribute to a public address system that you view as having marginal value.