The Sting of the Long Tail: Climate Change, Backlash and the Problem of Delayed Harm

Abstract

Climate change is an example of a common problem in environmental law: delayed harm, where environmental harm only manifests itself long after the human activity that causes it. Delayed harm poses specific challenges to environmental policymakers: It makes causation difficult to establish or prove, making the use of liability systems difficult. It poses significant political obstacles to the establishment of regulatory systems to address the harm, because of the entrenchment of economic interests, myopia, and endowment effects. And perhaps most importantly, it poses significant challenges to the maintenance of regulatory programs after they are created - even if the regulatory program succeeds at eliminating the human activity causing the harm (perhaps at great cost), the harm will continue to persist for an extended period of time because of the delay. This gap between regulatory action and environmental performance may inspire a backlash against the regulatory system, as shown with the Endangered Species Act (ESA). One possible solution is to focus on restoration, undoing the harm that has accumulated from prior human activity. However, restoration work has had mixed results in areas such as ESA implementation, because it can be very costly, it can be uncertain in its effectiveness, and because it may also take an extended period of time to succeed. Delayed harm will pose significant challenges to the primary tool that has been proposed to address climate change: regulation. Even if policymakers are able to overcome the not-insignificant challenges to initiating regulation, there is a distinct possibility that there may be a backlash against climate change regulation because of the inevitable persistence of climate change harm after regulation begins. There are a range of possible restoration efforts that might help reduce the risk of a backlash: adaptation efforts to reduce the harm to specific human or natural systems from climate change or various geoengineering schemes for removing carbon from the atmosphere or managing the global average temperature. However, many of these restoration efforts are costly, highly uncertain as to effectiveness, themselves require substantial time delays, or have significant side effects. Nonetheless, the lessons of delayed harm indicate that both adapatation and geoengineering must be taken seriously as part of a overarching policy response to climate change. This requires better coordination between greenhouse gas regulation and adaptation efforts, and also expanded research into the feasibility and desirability of geoengineering.

Keywords: climate change, environmental law