The Libertarian Case for Controlling Climate Change

Daniel Farber

Daniel Farber

Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Law, Energy and the Environment at the University of California, Berkeley School of Law.
Professor Farber’s expertise is in the area of Cost-Benefit Analysis, Climate Change, and Constitutional Law.
Professor Farber has served on the Board of Directors for the Minnesota Civil Liberties Union, as a Law Clerk for Justice John Paul Stevens, United States Supreme Court, as a Law Clerk for Judge Philip W. Tone, United States Court of Appeals for the Seventh Circuit, and on the Litigation Committee, AAUP; AAUP Special Committee on Confidentiality in Tenure Review. Professor Farber was also an Associate at the firm Sidley & Austin (Washington DC).
Daniel Farber has written several books on environmental law, including Disasters and the Law, (Aspen Publishers, 2006, with Jim Chen), Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World (University of Chicago Press, 1999), Environmental Law in a Nutshell (West Pub. Co., 1st ed. 1983, 2d ed. 1988; 3d ed. 1992; Japanese translation, 1992; 4th ed. 1995; 5th ed. 2000 with R. Findley), and Environmental Law Cases and Materials (West Pub. Co., 1st ed. 1981, 2d ed. 1985, 3d ed. 1991, 4th ed. 1995, 5th ed. 1999; with 1983, 1988, 1993, and 1997 Supplements; Teacher's Manuals 1992 , 1995 and 1999) with R. Findley, 6th ed. 2003 with R. Findley and J. Freeman; 7th ed. 2006 with J. Freeman and A. Carlson. His recent book publications include Public Choice and Public Law (Economic Approaches to Law), Elgar 2007, and Retained by the People: The ‘Silent’ Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have, Basic Books, 2007, as well as a number of book chapters on constitutional law and judicial decision-making. Professor Farber’s recent articles include Justice Stevens, Habeas Jurisdiction, and the War on Terror, in the U.C. Davis Law Review 2010, Rethinking the Role of Cost-Benefit Analysis in the University of Chicago Law Review 2009, and Adaptation Planning and Climate Impact Assessments: Learning from NEPA’s Flaws, in the Environmental Law Reporter, among many others from a wide range of legal topics.).
Daniel Farber
University of California at Berkeley
Berkeley CA
510.642.0340
email
website

April 27, 2010

Cross-posted from Legal Planet.

Libertarians are, of course, deeply suspicious of government regulation. This may lead to a reflexive rejection of climate change mitigation. But Jonathan Adler, who provides a refreshingly distinctive view of environmental law from the Right, argues otherwise. In a forthcoming article (only the abstract is available on SSRN), he contends that libertarians are making a mistake in opposing climate mitigation:

Even if anthropogenic climate change is decidedly less than catastrophic – indeed, even if it net beneficial to the globe as whole – human-induced climate change is likely to contribute to environmental changes that violate traditional conceptions of property rights. Viewed globally, the actions of some countries – primarily developed nations (such as the United States) and those nations that are industrializing most rapidly (such as China and India) – are likely to increase environmental harms suffered by less developed nations – nations that have not (as of yet) made any significant contribution to global climate change. . . . As a consequence, this paper suggests a complete rethinking of the conventional conservative and libertarian approach to climate change.

Adler’s argument seems unanswerable to me. Carbon emitters are causing harm to the property rights of others — for instance, through sea level rise that will directly deprive owners of portions of their land. People who really care about property rights should worry a lot about climate change. This doesn’t mean that they should necessary favor any particular approach to mitigation — Adler, for instance, favors heavy investments in developing new energy technologies. Yet, to favor inaction is inconsistent with libertarian principles.

ADDENDUM.

Adler also favors a revenue-neutral carbon tax, like that proposed by James Hansen or Rep. Bob Inglis (R-SC), and think such a policy would be far better than cap-and-trade or traditional regulation. Here are a piece he did for TNR Online and some of the relevant posts on Volokh:

http://www.tnr.com/article/politics/backing-words-intelligent-targeted-action

http://volokh.com/posts/1177606109.shtml

http://volokh.com/archives/archive_2008_01_27-2008_02_02.shtml#1201968666

http://volokh.com/2009/12/08/krugman-v-hansen/

http://volokh.com/2010/03/02/cap-and-trade-is-dead-long-live-cap-and-trade/