Some conservative intellectuals are beginning to recognize the seriousness of climate destabilization. A notable example is that of Richard Posner, a judge of the U.S. Court of Appeals for the Seventh Circuit and a prolific and often brilliant writer on the law, literature, and politics. He is perhaps best known as an advocate for the use of economic standards as both a legal tool and a yardstick by which to measure judicial decisions. Judge Posner advocates wealth creation as a reliable standard for legal reasoning, along with great deference to prevailing practices and behaviors. Applied to politics, Posner's pragmatism comes close to views once proposed by the economist Joseph Schumpeter, himself no flaming reformer. Posner's position has been so forcefully and consistently stated for so long that it is surprising to read his book Catastrophe (2004), in which he concludes that the odds of one or more catastrophes are growing quickly. Among these he includes the prospect of rapid climate change and admits that it "is to a significant degree a by-product of the success of capitalism in enormously increasing the amount of world economic activity . . . and is a great and growing threat to anyone's idea of human welfare" (2004; p. 263). On this subject, conservatives, he believes, are "in a state of denial." The problem has come about, in part, because of the "scientific illiteracy of most nonscientists . . . [particularly] the people who count in making and implementing policy" (p. 264).
Posner believes that the dangers of one or more catastrophes are growing because of "the breakneck pace of scientific and technological advance" (p. 92). As for a framework to understand our situation and to reduce the potential for disaster, the "natural candidate . . . is economics," but alas, the subject of catastrophe "turns out to be an unruly subject for economic analysis" (p. 123). This is so, in some measure, because of the global scope of the problems and because of the long-time horizons involved, which bring into question standard economic tools such as discounting. The use of discounting thus carries the disadvantage of raising the potential for disasters that occur sufficiently far into the future
that the benefits of procrastination and the costs of disaster fall onto different generations without the possibility of some offsetting benefit by the accrual of more wealth. If economics is an unsatisfactory tool, the law is little better. Indeed, Posner believes that "the legal profession may even be increasing the probability of catastrophe" (p. 199). Improvement in this situation, in his view, will require "that a nontrivial number of lawyers" become scientifically literate, an interesting challenge (p. 203). Posner further proposes other remedies, such as the establishment of a science court, a center for catastrophic-risk assessment, the use of fiscal tools such as taxation and subsidies, increased regulation including the establishment of an international EPA, increased scrutiny of research projects in high-risk areas, and greater police powers to detect and control growing risks of terrorism.
Posner's recent concern about the rising potential for catastrophe is welcome and significant. But it calls for some explanation. His voice and considerable influence have long been on the other side of environment-related issues, encouraging his many influential readers to regard the market and wealth creation as the primary standard for the law and public policy. He is a member of the University of Chicago group, including Milton Friedman and Richard Epstein, who gave us the prevailing economic and legal philosophy that prized individual rights and the free-market ideology that have destroyed a great deal of our capacity for public responses to public problems. Nonetheless, it will be important for legal scholars to sort out issues of law and liability in climate-change cases that resemble the tobacco cases. The human and property consequences of the use of fossil fuels were known well in advance of efforts to reduce or mitigate them. As with the tobacco cases, scientists have been warning us at least since the late 1970s in ever more insistent terms, and no one can ever legitimately plead that they did not know the consequences of their actions.
as merely partisan opinion. Americans, too, joined across party lines to overcome the Great Depression of the 1930s and combat fascism and communism. Americans have risen to meet daunting challenges in the past, and we can do it again.
A shared national agenda that joins the public across the political spectrum, however, cannot be built on outworn myths and historical illusions. Our survival and that of our democracy depend on a clearer understanding of our own ecological history and the recognition of our disproportionate role in causing rapid climate change. We have often thought ourselves to be a unique and blessed people, and in some ways we may be, but a great deal of that uniqueness is owing to the fact that our forefathers discovered the blessings hidden in the last and greatest reserve of stored carbon on Earth. Our soils and forests were some of the richest anywhere, and our supplies of coal and oil seemed inexhaustible. And rather like yeast cells feeding on sugar in a wine vat, we prospered by exploiting carbon and depleting soils, forests, and fossil fuels alike. As a result, we Americans release an average of 22 tons of CO2 per person each year and are responsible for 28 percent of the increased carbon in the atmosphere, but we make up only 5 percent of world population. In time our good fortune gave rise to an inordinate sense of self-congratulation and the belief that, so endowed, we must be God's favored people. From there it was but a short step to intoxicating doctrines of manifest destiny and later to a foreign policy built on the idea of American supremacy. But the access to cheap and abundant carbon led also to excesses of overconsumption and waste, an epidemic of fatness, urban sprawl, violence, and energy profligacy, and lifestyles that can be neither sustained here nor duplicated for very long elsewhere. Historian David Potter once characterized Americans as "a people of plenty," but in time we became a people of excess, and we now have to find our way back to older values of thrift, frugality, neighborliness, and what John Todd once called "elegant solutions predicated on the uniqueness of place." That is a homecoming of sorts.
Our future and the future of our democracy depend greatly on our sense of connection to each other and our obligations to future generations. Economist Kenneth Boulding once asked in jest "what has the future done for me . . . lately?" By definition the unborn can do nothing for the living, but the idea of posterity— a decent future for our children and theirs—does a great deal for us. Our hopes for the future inspire the best of which we are capable. Absent that hope, we easily fall victim to shortsightedness, anomie, and carelessness in managing our contemporary affairs. Even were that not so, are we in some manner obliged to care about generations to come? The founder of modern conservatism, Edmund Burke, once described the living generation as trustees obligated to pass the inheritance of civilization from the distant past on to future generations. That inheritance includes all the best of civilization—our laws, customs, culture, and institutions—and the ecological requisites—clean air and water, healthy ecosystems, and stable climate—on which they depend. But without advocates in the present and lacking any standing in the law, posterity has no power to enforce its rights. The U.S. Constitution mentions posterity in the preamble but not thereafter. In the more than two centuries since the Constitution was written, no significant case law has developed to protect posterity, leaving it defenseless against harms perpetrated on it, knowingly or not, by previous genera-tions.10 It might be argued that it has always been the case that each generation benefits from the progress bequeathed by earlier generations and suffers the effects of, say, soil loss or the loss of biological diversity accidentally incurred. It is presumed, however, that on balance the benefits more than offset the losses. It is an open question how much the members of any generation know the effects of their actions on later generations. But until roughly the mid-20th century, the scale of costs imposed from one generation to the next was contained locally or regionally, and the damage was often repairable in a matter of decades or centuries. The intergenerational costs of climate change, however, are another matter entirely. They are global, permanent (as we measure time), and mostly well understood. We cannot plead ignorance about the facts of climate change or argue that time will heal the damages we cause. And, given the large and well-documented evidence of the potential for energy efficiency and renewable energy, neither can we make a plausible case that we had no other choices. We will stand before whoever is able and willing to judge, or perhaps the silence of extinction, as a generation that willfully and unnecessarily imposed egregious wrongs on all future generations, depriving them of liberty, property, and life. We are culpable, but the law as presently constituted conveniently lets us off the hook because it says nothing about the rights of posterity.
Harms perpetrated across generations or actions that could lead to the extinction of humankind are perhaps the most baffling, as well as most important, issues of ethics and policy. In the latter case, for instance, the unborn are harmed only in the sense that they were not brought into existence, which raises many perplexities. Pondering self-inflicted extinction, Jonathan Schell, for example, writes:
How are we to comprehend the life or death of the infinite number of possible people who do not yet exist at all? How are we, who are a part of human life, to step back from life and see it whole, in order to assess the meaning of its disappearance? To kill a human being is murder. . . . but what crime is it to cancel the numberless multitude of unconceived people? In what court is such a crime to be judged? Against whom is it committed? And what law does it violate? (Schell, 2000, p. 116)
Regarding the rights of future generations, Schell asks, "What standing should they have among us?" They exist nowhere except in prospect, and the law presently affords no protection or consideration to humans "unconceived." Schell was writing about the case of extinction by nuclear weapons, but extinction by climate change poses virtually the same difficult issues, albeit less quickly.
At a slightly less vexatious level, the case against abortion is perhaps instructive. Whatever one's opinion about the rights of a fetus, might the same kind of arguments apply to the right to life of future generations? Some will say that rights can be assumed only when agents are able to reciprocate, hence they must be living at the same time and capable of reciprocity. But we provide for the unborn in many ways without making any such assumptions. Some people endow colleges, universities, and cultural institutions for future generations. From Thomas Jefferson to the present it has been common to object to the imposition of our financial burdens on posterity (Yarrow, 2008). In this case, however, it is the right of future generations to life itself.
James Madison gave us another way to understand intergen-erational obligation. In the tenth of the Federalist Papers, he made the case for controlling the power of factions in order to protect the larger good. But from the perspective of posterity, the present generation is but a faction with the unchecked power to consume resources and inflict irreparable damage to all subsequent generations. Madison could not have foreseen the kinds of harm one generation could inflict on subsequent generations, but the logic is equally clear for controlling the power of factions in both instances.
Legally and morally, however, we are in new territory, and we struggle to find the concepts and words to describe our situation in the hope that being able to name it, we might avert it. During World War II the word "genocide" was coined to describe the systematic and willful destruction of entire ethnic groups. But we have no word to describe our own actions, the consequences of which are now killing what the World Health Organization estimates to be 150,000 people each year and will cause the death of millions more in the future, and perhaps much worse. The effects of our present use of coal, oil, and natural gas will kill into the far future, but we cannot know exactly who, where, or how they will die. We do know, however, that the number will be very large and that they will perish in storms, or heat waves, or of strange diseases, or in violence amplified by famine, or in any of a thousand other ways. We have, however, no word by which to describe calamity at this scale and, as yet, no means to hold perpetrators accountable. It is rather like Churchill's description of genocide as "a crime without a name," but on an infinitely larger scale.11
Other than those in the present willing to speak and act on their behalf, generations to come have no defenders. In contrast to the fetus, they exist only in prospect, but like a fetus, that prospect can be radically crippled or aborted by the indifference or dereliction of the present generation. And in contrast to the individual fetus, future generations pose a collective challenge both to the law and to our capacity to make moral decisions. To do so, we must imagine their lives at a scale for which we are unaccustomed and must summon the wherewithal to act on their behalf as well as the intellectual acuity to know how to act effectively to defend their interests. Since it is within our power to grant or to withhold life, what can we do?
Any posterity capable of making such judgments will regard the policy and behavior changes necessary now to limit and reverse the damage of climate change to them as obvious and necessary. The real fault line in American politics is not between liberals and conservatives or between Democrats and Republicans. It is, rather, in how we orient ourselves to the generations to come, who will bear the consequences, for better and for worse, of our actions. Some say that we cannot know precisely what the consequences of rapid climate change may be and that we should not act until they are known in great detail. Others, mostly devotees of the faith of neoclassical economics, say that we cannot afford to act and must wait until we are richer still. There are still a few who believe that climate change is a hoax and prefer to do nothing— come what may. There are many, perhaps still a majority, who will say nothing because they have not thought much about such things. But a growing number believe that we must act now.
The long emergency will be a test of our beliefs, institutions, and character as a people. We all hope fervently that we and our children and theirs will come through what biologist E. O. Wilson calls "the bottleneck" with a more tempered but improved and more vital democracy. But I do not believe that to be even remotely possible without extending our boundaries of consideration and affection to include posterity and, in some manner yet unknown, other life forms. I think this is what Albert Einstein was getting at when he proposed that:
A human being is part of the whole world, called by us "Universe," a part limited in time and space. He experiences himself, his thoughts and feelings as something separate from the rest—a kind of optical delusion of his consciousness.
Aldo Leopold, similarly, wrote in A Sand County Almanac that "a land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it." Both Einstein and Leopold regarded our diminished sense of community as part of the unfinished business of human advancement. And both regarded this development not as a burden so much as growth in our human stature. It is time to expand our political horizons in ways commensurate with the extent of our effects on the future and the community of life. It is time to grant standing to our posterity, whose lives, liberty, and property are imperiled by our actions, and include them in a larger democracy. The principle involved draws from our own revolutionary experience and could be simply stated as:
No generation and no nation has the right to alter the bio-geochemical cycles of Earth or impair the stability, integrity, or beauty of natural systems, the consequences of which would fall as a form of intergenerational remote tyranny on all future generations.
This wording draws from Thomas Jefferson and the generation that threw off the arbitrary authority of a king, Aldo Leopold's description of a morally and ecologically solvent land ethic, and hundreds of contemporary ethicists and scientists who have wrestled with the darkening shadow that our generation casts onto succeeding generations and the opportunities we have to lighten that darkness.
Box 2.2. Postscript: A Note on the Shelf Life of Economic Ideas
Those of us who have looked to the self-interest of lending institutions to protect shareholder's equity, myself included, are in a state of shocked disbelief. .. Yes, I have found a flaw. I don't know how significant or permanent it is. But I've been very distressed by that fact.
The self-confidence of learned people is the comic tragedy of civilization.
—Alfred North Whitehead
Conservative philosopher Richard Weaver once noted that "ideas have consequences" (1984). And some really bad ideas of the last half century are leaving a legacy of very bad consequences. Weaver's 1948 book was an extended argument for conservatism, beginning with the recognition of knowledge higher than our own and the importance of such things as virtue, character, craftsmanship, enduring quality, civility, and, above all, piety. Applied to nature, Weaver argued for a "degree of humility" such that we might avoid meddling "with small parts of a machine of whose total design and purpose we are ignorant" (p. 173). "Our planet," he wrote, is falling victim to a rigorism, so that what is done in any remote corner affects—nay, menaces—the whole. Resiliency and tolerance are lost" (p. 173). Weaver regarded the modern project to reconstruct nature as an "adolescent infatuation." One can reasonably imagine the approbation he would have felt for the creative exhibition of thievery and stupidity that has led to our present circumstances.
Weaver's idea that ideas have real consequences, alas, had less consequence than one might wish. It is honored mostly among a small band of true conservatives, the uncommon sort who actually value the conservation of tradition, law, custom, nature, culture, and religion, and who take ideas and their real-world implications seriously. Other than the title of his book, however, Weaver is presently unknown to the wider public, and probably not at all to the faux conservatives who daily bloviate on FOX News. Unfortunately, ideas, whatever their consequences, seldom "yield
Box 2.2. (continued)
to the attack of other ideas," in John Kenneth Galbraith's words, "but to the massive onslaught of circumstances with which they cannot contend" (2001, p. 30). That appears to be true in our own time, in which the pecuniary imagination was given such full reign. The convenient idea that foxes could be persuaded to reliably guard the henhouse, for example, derived from free marketeers like Milton Friedman, libertarians like George Gilder, supply-side economists like Arthur Laffer, and "long-boomers" like Peter Schwartz, did not voluntarily surrender to superior reason, logic, or evidence. Rather, it was an idea whose consequences turned out to be bad for both the hens and a bit later for the starving foxes, some of whom, now professing different ideas, stand in line for public bailouts—roadkill on the highway called reality. The shelf life of such ideas will turn out to be brief as such fads go, but the consequences will last a long time.
When delusion is popular, however, durable ideas are unpopular, or more likely forgotten altogether. But in the present wreckage we have no choice but to search for more durable ideas with more benign or even positive consequences. When we find truly durable ideas, they are mostly about limits to what we can do or should do— but restraint, prudence, and caution are, "oh mah God, sooo not cool" as one of my students thoughtfully expressed it. Accordingly, such things are put on the shelf, where they gather dust until necessity strikes again and they are called back into use as we try once again to find our bearings amidst the debris of popular delusions gone bust.
In this regard, an ancient collection of proverbs contains these words of the Greek poet Archilochus: "the fox knows many things; the hedgehog knows one big thing," Like the hedgehog, advocates for the environment, animals, biological diversity, water, soils, landscapes, and climate stability know one big thing, as biologist Garrett Hardin once put it, which is that "we can never do merely one thing" (Hardin, 1972, p. 38). In other words, there are many unforeseen consequences from what we do, and so there are limits to what we can safely do. Since consequences are not only unpredictable but often remote in time and distant from the cause, we are often ignorant of the victims of our actions, and so there are moral limits on what we should do as well. To think about consequences over time requires, further, that we know how things are linked as systems and understand that small actions can have large consequences, many of which are unpredictable.
Around the first Earth Day in 1970, there was an efflorescence of brilliant thinking along these lines. In different ways, it was mostly about the things we could not do. Rachel Carson's Silent Spring (1962), for example, launched the modern environmental movement with the simple message that we could not carelessly spread toxic chemicals without causing damage to animals and eventually to ourselves. The book was attacked by proponents of what she called "Neanderthal biology," most of whom—then and now—with a great deal of money and/or reputation invested in the petrochemical business.
Other books making the same point addressed unlimited growth of population, economies, technology, and scale. However prescient and true, most of the wisdom was quickly forgotten. Now, however, we live in "the age of consequences" and have good reason to rethink many ideas, and the systems of ideas called paradigms. Perhaps this is what educators describe as a "teachable moment" and inventors refer to as the "aha" moment. Assuming that it may be so, I have some suggestions for those assigned to rebuild the U.S. and global economies.
The first is the old idea that we cannot build a durable economy that is so utterly dependent on trivial consumption. In 2007, for instance, Americans spent $93 billion on tobacco and another $83 billion on casino gambling, but only $46 billion on books. Another example is from the recent SkyMall catalog found in the seat pocket of commercial airplanes, which announces that it is "going beyond the ordinary." To do so, it offers those burdened with money and credit such items as a "startlingly unique" two-foot-high representation of Big Foot, to be placed in the garden where it will no doubt amaze and delight, available for only $98.95. "The keep your distance bug vacuum," equipped with a 22,400-rpm motor, is available for $49.95. And for just $299.99 cat
Box 2.2. (continued)
lovers can buy a marvel of advanced technology: "The 24/7 self-cleaning, scoopfree litter box!" Technology-oriented catalogues regularly offer dozens, nay, hundreds of devices that digitally amaze, ease, simplify, gratify, sort, store, scratch, waken, warn, multiply, compute, freshen, check, sanitize, and personalize. It may be possible, one day, to live in a digital, stainless steel nirvana of the sort George Orwell once said would "make the world safe for little fat men."
There are, however, many problems with an economy so dependent on ephemeralities. It is a cheat because it cannot satisfy the desires that it arouses. It is a lie because it purports to solve by trivial consumption what can only be solved by better human relations. It is immoral because it takes scarce resources from those who still lack the basics and gives them to those with everything who are merely bored. It is unsustainable because it creates waste that destroys climatic stability and ecosystems. It is unintelligent because it redirects the mental energies of producers and consumers alike to illusion, not reality, which makes us stupid. And because of such things an economy organized to promote fantasy will eventually collapse of its own weight.
In The Memory of Old Jack, Wendell Berry describes the main character as "troubled and angered in his mind to think that people would aspire to do as little as possible, no better than they are made to do it, for more pay than they are worth." The masters of the recently imploded financial universe who made millions while destroying much of the economy, including the chief executive officers of any number of corporations from Enron to General Motors, would have appropriately aroused Old Jack's fury, as it should ours.
I have a second suggestion, which is simply that we ought to build a slower economy. It is also an old idea, embodied in aphorisms such as "the race is not to the swift" and "haste makes waste." In the age of hustle, cell phones, and instant everything, we are inclined to forget that lots of worthwhile things can only be done slowly. It takes time for all of us, economists included, to think clearly. It takes time to be a good parent or friend. It takes time to create quality. It takes time to make a great city. It takes time to restore soil. It takes time to restore one's soul. In each case, speed distorts reality and destroys the harmonies of nature and society alike (Orr, 1998). Hurry certainly changes society for the worse.
Ivan Illich's provocative 1974 book Energy and Equity makes the case that "high quanta of energy degrade social relations just as inevitably as they destroy the physical milieu" (1974, p. 3). "Beyond a critical speed," Illich argued, "no one can save time without forcing another to lose it" (p. 30). But any proposal to limit speed "engenders stubborn opposition . . . expos[ing] the addiction of industrialized men to consuming ever higher doses of energy" (p. 55). Even assuming nonpolluting energy sources, the use of massive energy of any sort "acts on society like a drug that is . . . psychically enslaving" (p. 6). The irony, Illich says, is that the time it takes to earn the money to travel at high speed divided into the average miles traveled per year gives a figure of about 15 mph . . . about the average speed of travel in the year 1900, but at considerably higher cost.
What does a slow economy look like? Woody Tasch, chairman of Investors' Circle, offers one view: "It would be driven by . . . the imperatives of nature rather than by the imperatives of finance. Its first principle would be, I suppose, the principle of carrying capacity, embedded in a process of nurturing" (2008, p. 175). A slow money economy would change the way we invest and discipline the expectations of quick returns to capital to, say, 5 to 8 percent per year, which now sounds pretty good. It would require buyers, for example, to hold stock for, say, six months before they could sell. Tasch calls this "patient capital," but by any name it involves the recalibration of money and finance to the pace of nature. And that would be a revolution.
My third suggestion is to build an economy on ecological realities, not on the belief that we are exempt from the laws of ecology and physics. In his classic 1980 book Overshoot, William Catton writes "The alternative to chaos is to abandon the illusion that all things are possible" (p. 9). He
Box 2.2. (continued)
goes on to say, "We need an ecological worldview; noble intentions and a modicum of ecological information will not suffice" (p. 12). Each ratchet upward of human population and dominance required the diversion of "some fraction of the earth's life-supporting capacity from supporting other kinds of life to supporting our kind" (p. 27). Eventually, the method of enlarging our estate by expanding into unoccupied lands gave way to industrialization and drawing down ancient ecological capital. "The myth of limitless-ness dominated people's minds" to the point where we have nearly trapped ourselves (p. 29). For Catton, we are caught in an irony of epic proportions: "The very aspect of human nature that enabled Homo sapiens to become the dominant species in all of nature was also what made human dominance precarious at best, and perhaps inexorably self-defeating" (p. 153).
Nobel Prize-winning chemist and economic theorist Frederick Soddy made a similar point in Wealth, Virtual Wealth, and Debt (1926), arguing that: "Debts are subject to the laws of mathematics rather than physics. Unlike wealth, which is subject to the laws of thermodynamics, debts do not rot with old age and are not consumed in the process of living. On the contrary, they grow at so much per cent per annum, by the well-known mathematical laws of simple and compound interest" (quoted in Daly, Beyond Growth, 1996, p. 178).
"Debt," in Herman Daly's words, "can endure forever; wealth cannot, because its physical dimension is subject to the destructive force of entropy" (p. 179). As a result, Daly continues, "The positive feedback of compound interest must be offset by counteracting forces of debt repudiation, such as inflation, bankruptcy, or confiscatory taxation, all of which breed violence" (p. 179). The growth of the money economy in reality represented the expansion of claims (debt) against a stable or now diminishing stock called nature. As the economy grew, what we call wealth represented only a growing number of claims against a finite stock of soil, forests, wildlife, resources, and land, and hence was the source of long-term inflation and ruin.
Although he apparently did not know of Soddy's work, economist Nicholas Georgescu-Roegen later made many of the same points about the relation of entropy to economic growth in his monumental but widely ignored The Entropy Law and the Economic Process (1971). "Every Cadillac produced at any time," he wrote, "means fewer lives in the future." Given our expansive nature and the laws of physics, our fate, he concluded, "is to choose a truly great but brief, not a long and dull, career" (p. 304). Or as John Ruskin once put it more poetically: "the rule and root of all economy—that what one person has, another cannot have; and that every atom of substance, of whatever kind, used or consumed, is so much human life spent" (p. 192).
We are running two deficits simultaneously, and we must solve them together. If we fail to do so, nature will take its course. This will require a great deal of rethinking, and it will not be easy. But the present economic collapse is too far-reaching and the threat of climate disaster too real to do otherwise. Taken together, they indicate that we are nowhere near as rich as we once presumed. We have been living far beyond our means by drawing down natural capital, rather like a corporation selling off assets in a fire sale and calling the proceeds profit. The housing bubble, dishonest accounting, and the use of unaccountable financial instruments like derivatives are merely the tip of a far larger problem that includes the failure to account for carbon emissions and the loss of species diversity.
The ideas that lead us to the brink are the equivalent ofjunk bonds and derivatives, unsecured by real assets and ungrounded in reality. There are better ideas by which to order our economic and ecological affairs, based on the principle that "for every piece of wise work done, so much life is granted; for every piece of foolish work, nothing; for every piece of wicked work, so much death" (Ruskin, p. 202).
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