Abstract
2018 witnessed the release of a number of films depicting a new kind of future dystopia. Instead of the usual portrayal of psychological, technological, and political horrors of future dystopias, we have begun to see an increasing emphasis on humans surviving in a world with no natural ecosystems left intact. For example, the new Blade Runner film takes place in a future with no remaining trees – not one – and artificial sources of nutrition instead of agriculture. In the recent Spielberg film Ready Player One, people must escape into a virtual reality world because the real world is unlivable, having been stripped of all natural resources and devastated by climate change. This trend in depressing entertainment reflects both an increased awareness of the extremely serious environmental issues facing our planet (including biodiversity loss and climate change) and a complete failure to appreciate our dependence on a functioning planet, and its associated ecosystem services, in order to survive. Without ecosystem services life doesn’t simply become unpleasant – it is over. Seeing healthy surviving protagonists living in a future with a completely-destroyed planet is perhaps the greatest fictional aspect of these films, and yet it is the least noticed. Because of our dependence on ecosystem services for survival, biodiversity is more than just our canary, it is the entire coal mine around us. In other words, we will not be able to save ourselves after failing to save everything else.
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Notes
- 1.
The Convention on Biological Diversity of 5 June 1992 (1760 U.N.T.S. 69).
- 2.
See Int’l Mar. Org. [IMO], Statement of Concern Regarding Iron Fertilization of the Oceans to Sequester CO2, P 1 IMO Ref. T5/5.01, LC-LP.1/Circ. 14 (July 13, 2007).
- 3.
UNEP/CBD/COP/DEC/X/33 (29 October 2010).
- 4.
These reports issued in 2012 and 2016 and contain substantial overlap. See generally Williamson, P., & Bodle, R. (2016), Update on Climate Geoengineering in Relation to the Convention on Biological Diversity: Potential Impacts and Regulatory Framework, Technical Series No.84, Secretariat of the Convention on Biological Diversity, Montreal, 158 pages; Secretariat of the Convention on Biological Diversity (2012), Geoengineering in Relation to the Convention on Biological Diversity: Technical and Regulatory Matters, Montreal, Technical Series No. 66, 152 pages. The 2016 report in fact confirms the continued validity of the key messages from the 2012 report and focuses on expanding detail, utilizing improved understanding of geoengineering techniques, and in some cases updating prior statements with minor changes. Because all material cited in this chapter is found in both reports, this pair of reports will hereinafter be referred to collectively as “CBD Geoengineering Reports.”
- 5.
Some proponents have argued that the substantial reduction in permafrost and tree loss associated with SRM’s cooling temperatures would exert a salutary role in relation to ocean acidification. See Juan B. Moreno-Cruz & David W. Keith, Climate policy under uncertainty: a case for solar geoengineering, Climatic Change (2013) 121: 431–444, at 433. However, with unchecked increases in atmospheric CO2 it would still continue to rise, as these same proponents concede. See id. at 440.
- 6.
See CBD Geoengineering Reports, supra note 5.
- 7.
See CBD Geoengineering Reports, supra note 5.
- 8.
See Wil Burns, BECCS and Human Rights, in Recent Developments in Climate Justice, 47 ELR 11013, 11,013–14 (2017).
- 9.
See CBD Geoengineering Reports, supra note 5.
- 10.
These are the comprehensive reports, as opposed to narrower reports that the IPCC also issues as needed.
- 11.
IPCC, 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, R.K. Pachauri and L.A. Meyer (eds.)]. IPCC, Geneva, Switzerland, 151 pp.
- 12.
See Stephen G. Wood et al., Whither the Precautionary Principle? An American Assessment from an Administrative Law Perspective, 54 Am. J. Comp. L. 581, 589 (2006) (“One aspect of the precautionary principle that has received considerable attention is that there are multiple formulations rather than a single, uniformly accepted formulation of the precautionary principle.”).
- 13.
See J. Cameron & J. Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, 14 Boston Col. Int’l & Comp. L. Rev. 1, 2 (1991) (“The precautionary principle ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting the environment, even if there is no conclusive scientific proof linking that particular substance or activity to environmental damage.”).
- 14.
See, e.g., Valerie J. Watnick, The Lautenberg Chemical Safety Act of 2016: Cancer, Industry Pressure, and A Proactive Approach, 43 Harv. Envtl. L. Rev. 373, 406–07 (2019) (discussing the “varying levels of precaution and burden shifting” across formulations of the precautionary principle); David A. Dana, A Behavioral Economic Defense of the Precautionary Principle, 97 Nw. U. L. Rev. 1315 (2003) (“In most formulations, the principle entails shifting the burden of proof to proponents of regulatory inaction in the face of health or environmental risk, although the precise standard for that burden of proof is not specified.”); Ken Geiser, Establishing a General Duty of Precaution in Environmental Protection Policies in the United States: A Proposal, in Protecting Public Health and the Environment: Implementing the Precautionary Principle (Carolyn Raffensperger & Joel Tickner eds., 1999) (“The Precautionary Principle asserts that parties should take measures to protect public health and the environment, even in the absence of clear, scientific evidence of harm. It provides for two conditions. First, in the face of scientific uncertainties, parties should refrain from actions that might harm the environment, and, second, that the burden of proof for assuring the safety of an action falls on those who propose it.”); Kirsten H. Engel, State Environmental Standard-Setting: Is There A “Race” and Is It “To the Bottom”?, 48 Hastings L.J. 271, 394 n.285 (1997) (“This is the point of the ‘precautionary principle’ which avers that activities should be subject to regulation before harm is demonstrated and thus shifts the burden of proving the ‘harmlessness’ of a challenged activity to the persons or entities who wish to engage in the activity.”); David Favre, Debate within the CITES Community: What Direction for the Future?, 33 N.R.J. 875, 894 (1993) (“In effect this concept reflects a reallocation of the burden of proof for environmental issues. Rather than requiring that those wishing to stop the action show in advance the harm of an action, application of the precautionary principle suggests that an action should not be undertaken if it poses a risk, if not a certainty, of harm. In effect this places the burden of proof on those wishing to proceed with an action to prove lack of environmental harm before proceeding. The principle acknowledges that much of the human activity which causes environmental harm cannot be scientifically proven to cause such harm before or even after an event.”).
The Wingspread Declaration provides the strongest example of this in the context of operationalizing agreements, stating: “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause-and-effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof.” See Science & Environmental Health Network, Wingspread Statement: A Common Sense Way to Protect Public Health & the Environment, Jan. 25, 1998, at 1. The Rio Declaration, on the other hand, while still shifting the burden against the action, softens the blow significantly: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992).
- 15.
See David Driesen, Cost-Benefit Analysis and the Precautionary Principle: Can they be Reconciled?, 2013 Mich. St. L. Rev. 771, 776 (2013).
- 16.
Cass Sunstein has argued in favor of cost-benefit analysis rather than application of the precautionary principle. See generally Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (2005). See also Richard A. Posner, Catastrophe: Risk and Response 140 (2004). Many others, environmentalists in particular, have advocated for the precautionary principle, arguing that cost-benefit analysis fails to adequately account for non-economic interests. See, e.g., Frank Ackerman & Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing (2004); Robert V. Percival, Who’s Afraid of the Precautionary Principle?, 23 Pace Envtl. L. Rev. 21 (2005–2006).
- 17.
See Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 Wash. & Lee L. Rev. 851, 862–63 (1996).
- 18.
Daniel A. Farber, Uncertainty, 99 Geo. L.J. 901, 909 (2011) (“Risk analysis requires that risks be quantified.”).
- 19.
Driesen, supra note 11 at 776–77.
- 20.
Given the wide variation in techniques and risks, combined with the many interpretations of the precautionary principle (including the one considered here), it is challenging even to suggest that a universal approach to operationalizing the principle is even possible in the context of geoengineering. See Kevin Elliott, Geoengineering and the Precautionary Principle, 24 Int’l J. Applied Philosophy 237, 238 (2010).
- 21.
Cass R. Sunstein, Irreversible and Catastrophic, 91 Cornell L. Rev. 841, 845–46 (2006) (describing the idea that application of the precautionary principle is like purchasing an option).
- 22.
“The much studied ‘endowment effect’ stands for the principal that people tend to value goods more when they own them than when they do not. ... A consequence of the endowment effect is the ‘offer-asking gap,’ which is the empirically observed phenomenon that people will often demand a higher price to sell a good that they possess than they would pay for the same good if they did not possess it at present.” Russell Korobkin, The Endowment Effect and Legal Analysis, 97 Nw. U. L. Rev. 1227, 1228 (2003).
- 23.
Talbot Page, A Generic View of Toxic Chemicals and Similar Risks, 7 Ecology L.Q. 207 (1978).
- 24.
See, e.g., Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 Wash. & Lee L. Rev. 851 (1996); cite Farber, etc.
- 25.
But see David A. Dana, A Behavioral Economic Defense of the Precautionary Principle, 97 Nw. U. L. Rev. 1315, 1327–28 (2003) (arguing that our cognitive biases actually direct us the other way, in favor of avoiding the short-term opportunity cost even at risk of an uncertain later harm, so the precautionary principle actually serves to counteract that impulse and force us to do the right thing).
- 26.
The Rio Declaration, drafted by the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro in 1992 and signed by 172 countries, contains a set of principles for sustainable development. Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992). It sets forth the precautionary principle in its Principle 15, which would apply to a member country’s decisionmaking regarding geoengineering, though it should be noted that the Rio Declaration is a nonbinding agreement.
- 27.
See Daniel Bodansky, May We Engineer the Climate?, 33 Climatic Change 309, 312 (1996).
- 28.
Imagine if we were to ask ourselves whether to serve up poison with or without its antidote, where not serving up poison in the first place is missing from the menu.
- 29.
Cass R. Sunstein, Beyond the Precautionary Principle, 151 U. Pa. L. Rev. 1003 (2003).
- 30.
When there is no chance at maintenance of baseline conditions, we must weigh the relative extent of uncertainty and danger, even where there is not human action on both sides of the decision. See Richard Posner, Catastrophe: Risk and Response (2004). Where it is a scenario of human action versus human action, as discussed in this chapter, that increases the duty to engage in this analysis. It’s not just a question of whether to take action when an asteroid is headed to the earth.
- 31.
Although the math in this scenario is easy, this is not to suggest that risk-risk analysis is easy or objective. It cannot be based purely on the math without application of subjective philosophical principles, as human lives are not fungible. People have grappled for centuries with the moral riddle involving the choice of killing some people to save more. In this drug example, fewer people will die, but individuals who would have lived will be killed, which is a tough pill to swallow.
- 32.
See Daniel A. Farber, Probabilities Behaving Badly: Complexity Theory and Environmental Uncertainty, 37 U.C. Davis L. Rev. 145, 171 (2003) (weighing two uncertainties is inherently uneven, given that we will likely know a bit more about one than the other, such as with the societal impact of cutting carbon emissions versus the impact of future climate change).
- 33.
This discussion regards the binary choice of whether or not to engage in a particular (and risky) geoengineering action. Broader climate policy contemplates many possible approaches to addressing the catastrophe, including deep decarbonization, in which we move quickly and dramatically to reduce emissions.
- 34.
Indeed, once we find ourselves facing this type of precaution-precaution analysis, we will inevitably be forced to accept some harm to the environment. See Rickels, W.; Klepper, G.; Dovern, J.; Betz, G.; Brachatzek, N.; Cacean, S.; Güssow, K.; Heintzenberg J.; Hiller, S.; Hoose, C.; Leisner, T.; Oschlies, A.; Platt, U.; Proelß, A.; Renn, O.; Schäfer, S.; Zürn M. (2011): Large-Scale Intentional Interventions into the Climate System? Assessing the Climate Engineering Debate. Scoping report conducted on behalf of the German Federal Ministry of Education and Research (BMBF), Kiel Earth Institute, Kiel., at 102.
- 35.
Although we are attempting to quantify uncertainty in order to weigh it (because we have to), it is important to distinguish this from risk analysis, which seeks more reliable/mathematical data. Risk analysis drives us away from uncertainty, while precautionary analysis works with unavoidable uncertainty and ranks it based on considerations that are difficult to quantify.
- 36.
At least this is needed where we have a close call because both sides of the decision hold the potential to be catastrophic and irreversible, but at least one pair of scholars has already proposed that engaging in minor geoengineering research actions would be more precautionary than failing to do so. Jesse L. Reynolds & Floor Fleurke, Climate Engineering Research: A Pre-cautionary Response to Climate Change?, 7 Carbon & Climate L. Rev. 101 (2013). This idea works without a very challenging analysis because the authors have restricted the scope of the geoengineering action.
- 37.
A guiding framework with some flexibility is all that is desirable, as countries are moving toward developing their own norms and priorities, but need a method of operationalizing the principle toward those goals. See generally Elizabeth Tedsen & Gesa Homann, Implementing the Precautionary Principle for Climate Engineering, 7 Carbon & Climate L. Rev. 90 (2013).
- 38.
For a description of the dangers of each major geoengineering proposal, see William C.G. Burns, The Paris Agreement and Climate Geoengineering Governance: The Need for a Human Rights-Based Component, CIGI Paper No. 111, pp. 12–17 (2016).
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Robbins, K. (2021). Geoengineering and the Evolution of Dueling Precautions. In: Burns, W., Dana, D., Nicholson, S.J. (eds) Climate Geoengineering: Science, Law and Governance. AESS Interdisciplinary Environmental Studies and Sciences Series. Springer, Cham. https://doi.org/10.1007/978-3-030-72372-9_11
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