Symposium keynote address.


The title of this Symposium, Reconceptualizing the Future of Environmental Law, accurately captures the challenge facing environmental law scholars and policymakers in 2015. The success of environmental law in the future will not arise from doubling down on the approaches developed over the last 50 years. Instead, it will arise from our willingness to learn from the past without being bound by the conceptual frameworks that dominated the early development of the field.

In particular, a successful future for environmental law is more likely to emerge if we acknowledge that the environmental problems, policy plasticity, and regulatory institutions that shaped the early decades of the field are no longer dominant, and if we develop new responses that reflect the shifts that have occurred on each of these points. I begin by identifying several important shifts in environmental problems, policy plasticity, and institutions. I then explore how new conceptual frameworks--sometimes explicit and sometimes not-- are already leading to new responses to some of the most challenging environmental issues.

No environmental issue is more challenging than climate change, and physicist Jonathan Gilligan and I have argued for a conceptual shift that involves recognizing the opportunity to buy time with private governance. We have not argued that private governance is a complete response or that it is the only new approach to climate change, but we have asserted that private initiatives can achieve a private governance wedge--emissions reductions that grow each year and average a billion tons per year over the 2016-2025 period. By drawing on existing efficiency incentives and motivations to reduce corporate and household carbon emissions, private initiatives can buy time while national and international governmental processes are in gridlock. In addition, many of these initiatives can complement a carbon price after it is adopted. The challenge is to make the conceptual shift: to move beyond the early history of environmental law and recognize that environmental governance is not synonymous with public governance.