A Response to Daniel Abebe and Jonathan Masur by Tom Ginsburg

by Tom Ginsburg

[Tom Ginsburg is a Professor at the University of Chicago Law School]

Thanks for this opportunity to respond to the Article by Professors Abebe and Masur.  My learned colleagues are certainly correct that, notwithstanding its status as a unitary and authoritarian state, China is an internally complicated place, with substantial de facto control at the provincial level.  Besides the East-West cleavages that Professors Abebe and Masur focus on, there are other internal tensions among different levels of government, different governmental agencies at each level, and different ideological groups within the Party. This internal complexity would complicate any climate change deal, were one to be within reach.

Of course, the United States also has internal tensions that undermine the possibility of reaching a climate change agreement. The U.S. also has an imperative of economic growth, and has a population not fully convinced of the benefits of addressing climate change. To over-simplify, the internal debate over climate change here roughly tracks the red-state/blue-state (or red rural/blue urban) distinction.   So there may be a “Two Americas” problem that is roughly symmetric with the “Two Chinas” problem.

Perhaps more importantly, China has a distinct advantage over the United States in climate change policy.  In China, when major political decisions are taken, they can be (though by no means always are) effectively implemented.  Were the center to decide that environmental policy was a priority over growth, it would probably be able to effectuate it, just as China has dealt with numerous other formidable challenges in building a “socialist market economy.” (Consider how the CCP divested the military of its profitable businesses, implemented tax reform, fired hundreds of millions of workers, suppressed major political reform movements etc.)  While it is unlikely that China would decide that, say, the Western regions should subsidize the richer coastal regions, do Professors Abebe and Masur really believe that China could not implement such a program if it wanted?  The capacity for executive enforcement is quite formidable once decisions are taken.

In this regard, the democratic U.S. may have a more difficult time implementing costly policies.  We have a formally federal structure that complicates policy implementation. We have a culture of “adversarial legalism” in which no major decision ever goes unchallenged in the courts. And we seem to be quite unwilling to take any positions that require political will.  Bottom line: the U.S. may be just as much an obstacle as China in this area.

http://opiniojuris.org/2010/02/04/a-response-to-daniel-abebe-and-jonathan-masur-by-tom-ginsburg/

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