Epstein on the Copenhagen Conference

Keeping Cool After Copenhagen
Richard A. Epstein
December 21, 2009

Don't blow the precautionary principle out of proportion.

The conclusion of the global warming conference yielded in the 11th hour the new Copenhagen Accord, which seeks to establish a roadmap for future coordinated actions on climate control. At the political level, this Accord is best understood as a variation of that legal curiosity known as an agreement to agree. The parties "underline" their view that climate change ranks as "one of the greatest challenges of our time," and pledge to take steps to keep any increase in global temperature below 2 degrees Celsius. The vital question of the allocation of responsibilities are left largely untapped, save for the important caveat that each nation pledges internationally to keep its own domestic commitments.

The political agreement treats the commitment to "deep cuts" in global warning as being "required according to science." But it gives little hint on how it views "the science." It does not specify either the probability that the earth’s temperatures will exceed the 2 degree Celsius barrier or how much man-made emissions will drive that. Nor does it explain why huge commitment of resources should be made now on a problem whose status is heavily debated in the literature, to say the least.

How then to get a handle on these critical issues of probability and timing? Unlike many writers on this vast topic, I start small. First take simple two-party disputes, master them and then work up to global issues. Thus in an everyday nuisance suit between private parties over sewage and odors, the key question involves the choice of remedy for future and uncertain harms. The usual response of the tort law follows libertarian lines. Hold off on government remedies until needed. So don't shut down a defendant's mine or mill until the threat of harm is actual or imminent.

But once that threshold is crossed, take a quick and firm response. Full damages must be paid for completed harms, and a quick injunction should be routinely issue, which tolerates very little delay in stopping or abating the harm producing activity. The ripple effects are positive. Once a potential polluter knows that its goose will be cooked, it will take prudent steps to stay out of harm's way.


Richard A. Epstein