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94 Cornell L. Rev. 1153 (2008-2009)
Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future

handle is hein.journals/clqv94 and id is 1163 raw text is: SUPER WICKED PROBLEMS AND CLIMATE CHANGE: RESTRAINING THE PRESENT TO LIBERATE THE FUTURE Richardj. Lazarust Climate change may soon have its lawmaking moment in the United States. The inherent problem with such lawmaking moments, however, is just that: they are moments. What Congress and the President do with much fanfare can quickly and quietly slip away in the ensuing years. This is famously so for environmental law. Subsequent legislative amendments, lim- ited budgets, appropriations riders, interpretive agency rulings, massive de- lays in rulemaking, and simple nonenforcement are more than capable of converting a seemingly uncompromising legal mandate into nothing more than a symbolic aspirational statement. Climate change legislation is espe- cially vulnerable to being unraveled over time for a variety of reasons, but especially because of the extent to which it imposes costs on the short term for the realization of benefits many decades and sometimes centuries later. To be successful over the long term, climate change legislation will need to include institutional design features that insulate programmatic implementation to a t Professor of Law, Georgetown University. I would like to thank Jennifer Locke Davitt of the Georgetown University Law Center Library, Damien Leonard and Edward Sunwoo, both of the Georgetown University Law Center Class of 2010; Erika Kranz and Julia Stein, both of the Georgetown University Law Center Class of 2009; Elizabeth Black and Susannah Foster, both of the Georgetown University Law Center Class of 2008; and Matthew Littleton, Harvard Law School Class of 2010, for their outstanding research assis- tance in the preparation of this article. I am grateful for excellent comments on drafts from Professors Hope Babcock, Rachel Barkow, David Barron, Erik Bluemal, Peter Byrne, John Dernbach, John Echeverria, Jody Freeman, Michael Gerrard, Sam Issacharoff, Howell Jackson, VickiJackson, Douglas Kysar, Amanda Leiter, Daryl Levinson,John Mikhail, Todd Rakoff, David Schoenbrod, Roy Schotland, Phil Schrag, Chris Schroeder, Richard Stewart, Dan Tarlock, David Uhlmann, Jonathan Weiner, Edith Brown Weiss, and Katrina Wyman; to participants at faculty workshops at the Georgetown University Law Center and at Harvard Law School; and to the organizers of the conference on Breaking the Logjam: Environmental Reform for the New Congress and Administration, held at New York Uni- versity Law School on March 28-29, 2008, at which a very early draft was first discussed. I would also like to express my gratitude to Kelly Levin, Steven Bernstein, Benjamin Cashore, and Graeme Auld, whose paper, Playing It Forward: Path Dependency, Progressive Incrementalism, and the Super Wicked Problem of Global Climate Change 8-10 (July 7, 2007) (unpublished manuscript, on file with author), available at http://environment.yale.edu/ uploads/publications/2007evinbernsteincashoreauldWicked-Problems.pdf, presented at the International Studies Association 48th Annual Convention in Chicago on March 2, 2007, first introduced me to the notion of characterizing climate change as a super wicked problem. See infra notes 10-15 and accompanying text. Although I have long reflected on the features of climate change that render it a heightened challenge for lawmaking, the analytical framework that they first developed provides an especially useful way of organiz- ing and discussing those varied features. 1153

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