CORRECTIVE JUSTICE

Arguments based on theories of corrective justice view emissions of CO2 as a wrongful act and demand that emitters, whether nations or individuals, make compensatory payments to those who are harmed by these emissions. Nations or people that have historically been high emitters—largely, but by no means exclusively, developed nations and their residents—would owe compensation to nations or people who have historically been low emitters. These claims are rooted in theories of responsibility for actions, theories that go back to Aristotle. The Pottery Barn motto—you broke it, you own it—captures the intuition.

Peter Singer encapsulated the intuitions succinctly:

To put it in terms a child could understand, as far as the atmosphere is concerned, the developed countries broke it. If we believe that people should contribute to fixing something in proportion to their responsibility for breaking it, then the developed nations owe it to the rest of the world to fix the problem with the atmosphere.16

Many other commentators endorse this approach.17 Henry Shue treats it as his first principle of equity:

When a party has in the past taken an unfair advantage of others by imposing costs upon them without their consent, those who have been unilaterally put at a disadvantage are entitled to demand that in the future the offending party shoulder burdens that are unequal at least to the extent of the unfair advantage previously taken, in order to restore equality.18

After reviewing the arguments concerning responsibility, Stephen Gardiner concurs:

The arguments in favor of ignoring past emission are, then, unconvincing. Hence, contrary to many writers on this subject, I conclude that we should not ignore the presumption that past emissions pose an issue of justice that is both practically and theoretically important.19

There is also a legal basis for this approach. The Framework Convention in its introduction notes:

That the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low, and that the share of global emissions originating in developing countries will grow to meet their social and development needs.

More generally, some countries use what is known as the “polluters pay” principle, at least in some circumstances. It means what it says: polluters must pay for any harms that they cause. This is by no means universal and in its most general form is largely unknown because most countries make polluters pay only if they are negligent, except in very narrow circumstances. Even if honored in the breach, the polluters pay principle is often seen as a widely accepted principle. It is thought to be based in corrective justice and also to promote efficiency because it forces actors to take the full costs of their actions into account.

In prior work, Eric Posner and I discussed a number of problems with applying the corrective justice claim on its own terms.20 One is that corrective justice normally applies only to wrongful acts, meaning that the person who did the act was negligent or otherwise acted with fault. People who emitted CO2 before the problem of climate change became well known were probably not negligent. They could not have known that heating their homes or driving to work hurt others.

Once the problem of climate change became known, perhaps people engaging in these acts might have been acting negligently. But people find themselves in widely differing circumstances. Some people live in cold climates with few renewables and may have few choices other than to use fossil fuel energy to supply heat. Others live in places with abundant renewable energy or in temperate climates and may not need fossil fuels. Others live in large nations and need fuel for transportation. Attributing fault requires complex judgments about what behavior is acceptable. Is it negligent to live somewhere cold?

A second problem is that theories of corrective justice were developed to apply to individuals, not groups. When we try to apply it to groups, there is a concern that the wrong people will be made to pay and the wrong people will be compensated. Collective responsibility is often viewed as immoral. There is, however, no way to identify wrongful emitters and their victims on an individual basis. Instead, the actors in a climate treaty are nations.

Finally, many wrongful emissions were by people who are no longer alive or who are old enough that they will not bear the costs of emissions reductions. There is no way to make these individuals pay. Making current people pay imposes obligations based on corrective justice on people who did not act wrongfully.

The standard response to the latter problem is to apply corrective justice at the national level and to let the internal allocation of responsibility be determined by each nation.21 The United States, for example, would owe some amount based on the past emissions of people who live there, and it could determine how to allocate the costs to its residents. The United States has persisted over time and might be viewed as the responsible agent. Even though current citizens could not have wrongfully emitted CO2 before they were alive, they most likely received some of the benefits of those emissions.

The benefit theory is not the same as the polluter’s pay or wrongdoer theory. It is a theory of ill-gotten gains rather than past wrongs. The amount owed would be different, relating to the gains rather than the wrongs. It is a much more tenuous theory and has been criticized by a number of authors.22 Perhaps limiting responsibility to emissions after some date, such as 1990, solves both the intergenerational problem and the problem with determining fault, but there are arguments that it does not.

These sorts of arguments have been discussed in the literature, and a full exploration of applying corrective justice to climate change would require grappling with them. Even if we could work out these details, however, there are larger problems. The corrective justice argument suffers from the problems of climate change blinders and feasibility.

 
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