Everyone Complains About the Weather, But No One Ever Does Anything About It: Interjurisdictional Failure to Designate Responsible Parties for the Climate Crisis

Abstract

The evolving response to the approaching climate crisis challenges the assumptions on which many groups of policymakers rely to make sense of the world around them. Lawyers, as a profession, have been particularly disoriented by this dramatic change in the shape of the projected future. Our traditional skills seem quaint in a world of impending global cataclysm and prospective gee-whiz technology. Faced with the unknown we are, as always, prisoners of popular culture. Lawyers - as lawyers - never play a significant role in disaster movies. Legal skills have never seemed important when the fictional President or Prime Minister decides to evacuate New York or calls out the army to stop Godzilla. This image of lawyers in times of fictitious disaster has shaped the legal academic response to the real climate crisis: We exercise our judgment, playing economist, social scientist, moral philosopher, atmospheric scientist, or all four, as we consider what to do, but we do not "lawyer." However, lawyers - as lawyers - are central to fashioning a response to the climate crisis not only for our judgment and ability to give inspiring speeches in times of crisis but also for our traditional legal habits of mind. When we, as lawyers, face a new threat or cost that society will bear we endeavor to: (1) identify responsible parties to bear that cost; (2) identify mechanisms to spread that cost equitably among those responsible parties; and (3) identify measures to reduce that cost to the degree possible. To date, the legal debate regarding climate change has deemphasized, most remarkably at the federal level and the international level, the identification of responsible parties. The identification of responsible parties, however, is an essential first step toward any workable legal mechanism. Both the processes of identifying mechanisms to spread cost and measures to reduce cost depend, to a significant degree, on identifying who is responsible, why they are responsible, and what they can do about it.