Designing Global Climate Regulation

ous prospect, political negotiations have sought to establish an international regulatory policy to constrain greenhouse gas emissions. Major new treaties— the 1992 Framework Convention on Climate Change and the 1997 Kyoto Protocol—have been negotiated. But identifying the problem is not the same as crafting the solution. Climate science is a necessary but not sufficient basis for climate policy. It remains crucial, and often not simple, to design the regulatory system best suited to addressing global climate change.1 U.S. Supreme Court Justice Stephen Breyer, a scholar of regulatory design, observed two decades ago that “mismatches” defeat many well-intentioned regulatory programs and that regulatory systems should match the social and environmental systems they regulate.2 More specifically, regulatory programs should employ cost-effective tools, foster creativity in achieving solutions, and match the scale of the ecosystems and spillover effects they are meant to govern. But actual legal responses have too often created mismatches with social and environmental systems, such as regulatory programs that are unduly narrow and inflexible, resulting in excessive costs or even perverse increases in environmental harm. Global climate change plainly illustrates this problem. Climate change is complex on many dimensions, frustrating simple and hasty regulatory responses. The challenge is to design a regulatory system that matches these complex realities and thereby accomplishes cost-effective advances in global environmental protection. At least three kinds of complexity confront regulatory design for global climate change: causal complexity, spatial complexity, and temporal complexity.