The Poverty of Theory: Public Problems, Instrument Choice, and the Climate Emergency

Abstract

The instrument choice debate has been a fixture of environmental law for much of the last three decades. While this debate has led to a much sharper focus on the relative merits of different regulatory tools in confronting environmental problems, it has also left the field unprepared to conceive and implement an adequate response to complex, multifaceted challenges such as climate change. Using the case of emissions trading, this Article investigates how the instrument choice debate has impoverished our conception of government and limited our capacity to respond to the climate crisis. The central claim is that the overly abstract theory of instrument choice that has underwritten widespread enthusiasm for emissions trading and other forms of carbon pricing over the last three decades has led to a sharply diminished view of public engagement and government problem solving. In advancing this claim, the Article makes three main contributions. First, it provides a critical intellectual and institutional history of emissions trading that, for the first time, situates it within a broader history of instrument choice in law, economics, and political science. Second, it uses this history to develop and demonstrate a more reflexive and critical theory of policy instruments and government problem solving, showing how the mainstream instrument choice debate has constrained our conceptions of the regulatory state and its capacity for climate action in jurisdictions around the world. Third, and finally, it advances a series of normative claims that seek to rethink and reimagine a more responsive and expansive approach to government problem solving in the face of the looming climate emergency.

Keywords: environmental law, climate change, emissions trading, cap-and-trade, carbon pricing, instrument choice, regulation, law and economics, law and political economy, John Dewey, public problems