current estimate is that a doubling of CO 2 from preindustrial levels would result in a temperature increase between 1.5'C and 4.5'C (2.7'F to 8.1"F) by the end of this century. 3 For this reason, even in the best-case scenario, we will be faced with a number of adverse impacts from climate change-and indeed, we are already experiencing them: [M]any of the climate impacts identified by IPCC [Intergovernmental Panel on Climate Change] are likely to occur regardless of the nature of the international policy response. In fact, the IPCC has recently concluded that regional changes in climate, particularly increases in temperature, have already affected a diverse set of physical and biological systems in many parts of the world. Examples of observed changes caused by human releases of GHG include shrinkage of glaciers, thawing of permafrost, later freezing and earlier break-up of ice on rivers and lakes, lengthening of mid-to [sic] high-latitude growing seasons, poleward and altitudinal shifts of plants and animal ranges, declines of some plant and animal populations, and earlier flowering of trees, emerging of insects, and egg-laying in birds. 4 Designing a fair and efficient system of compensation for climate change damage poses great challenges. In this Article, my goal is only to start the process of thinking through these issues. In particular, I will try to show how certain kinds of injuries could be the subject of a workable compensation system. These injuries-involving changes in were adopted. Even if all nations could have stabilized emissions in the year 2002, the concentrations of GHGs would continue to rise and would approach 500 ppm by the year 2100. After that, GHG concentrations in the atmosphere would continue to rise for several hundred years before stabilization would be achieved. Even to stabilize CO 2 at 1,000 ppm will require reductions of emissions below current levels.
There is many a slip 'twixt the cup and the lip."' Nowhere is this more true than in environmental law. In all areas of law, there are gaps between the "law on the books" and the "law in action," but in environmental law the gap is sometimes a chasm.' At some level, this fact is well-known to everyone in the field. But, as scholars and teachers of environmental law, our focus has generally been elsewhere: on the standard-setting "cup" rather than the noncompliance "slip."The core focus of environmental scholarship has been on the federal standards governing pollution, hazardous waste, and preservation of wilderness and wildlife. 3 Much scholarship has addressed questions like the following: -Should we base standards on feasibility and available technology, or on quantitative risk assessment and cost-benefit analysis? 4 • How much discretion should agencies have in setting standards? 5 * Henry J. Fletcher Professor of Law and Associate Dean for Faculty Research and Development, University of Minnesota. Helpful comments were provided by Jim Chen, Dan Gifford, and the participants at the Georgetown Law and Economics Workshop and the Harvard Environmental Law Review Symposium on "Environmental Law: Trends in Legal Education & Scholarship." 1. PALLADUS, bk. X, epigram 32, in THE GREEK ANTHOLOGY (John W. Mackail ed., 1906).2. Consider, for instance, the following appraisal of the Toxic Substances Control Act ("TSCA"): "In working circles, TSCA is sometimes called 'the PCB Act,' which gives a fair idea of how one and a half pages [of the statute] that are strictly business can come to dominate sixty-four pages that are mostly talk." WILLIAM H. RODGERS, ENVIRON-MENTAL LAW 492 (2d ed. 1994).3. With numerous variations and some exceptions, the statutes require agencies such as the Environmental Protection Agency ("EPA") to take all feasible measures to attain some environmental goal, often in the form of a requirement of best available technology. For the author's views about this system's virtues and shortcomings, see generally DANIEL FARBER, Eco-PRAGMATISM: MAKING SENSIBLE ENVIRONMENTAL DECISIONS IN AN UNCER-
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