Augustin Fragnière University of Lausanne, Switzerland University of Paris 1, France

Transcription

1 Climate Change, Neutrality and the Harm Principle Augustin Fragnière University of Lausanne, Switzerland University of Paris 1, France ABSTRACT. This article aims at evaluating the compatibility of coercive climate policies with liberal neutrality. More precisely, it focuses on the doctrine of state neutrality as associated with the harm principle. It argues that given the difficulty of attributing causal responsibilities for climate harms to individuals, the harm principle does not work in this case, at least if one endorses a liberal atomistic ontology. Furthermore, the definition of what constitutes climate harms implies making moral assumptions, which makes it impossible to justify climate policies in a neutral way. Finally, the article demonstrates another consequence of applying neutrality to the case of climate change, namely the risk of a shift from political forms of decision-making to technocracy. Focusing too much on liberty of choice may (paradoxically) be to the detriment of political freedom. The article concludes that climate change is an intrinsically moral issue and that it should be the occasion of a political debate about our current values and lifestyles. It should not be reduced to a mere question of carbon metric. KEYWORDS. Climate change, political philosophy, neutrality, harm principle, responsibility, technocracy I. INTRODUCTION Debates about climate justice have been going on for almost twenty years. Until recently, they have focused mainly on how the burdens associated with climate change mitigation and/or adaptation should be shared among countries (Vanderheiden 2011; Caney 2014). Thus, climate change has been primarily seen as a matter of global justice, and little attention has been paid to it at the domestic level. Over the past few years, however, new issues have been arising, such as the possibility of assigning climate responsibilities and duties to individuals (Zellentin, ETHICAL PERSPECTIVES 21, no. 1(2014): by Centre for Ethics, KU Leuven. All rights reserved. doi: /EP

2 ETHICAL PERSPECTIVES MARCH 2014 Heyward and Meyer 2012). Despite their negligible contribution to the reinforcement of the greenhouse effect, the question is whether individuals are responsible for the harm caused by climate change? Some authors argue that this is the case (Nolt 2011) and others argue that it is not, or that only collectives may be held causally responsible (Sinnott- Armstrong 2005; Kernohan 2000; Attfield 2009; Cripps 2011; Cripps 2013; Callicott 2011). Given the difficulty in attributing causality, who should be held morally responsible for climate change? Here again the debate is ongoing and there are no firmly established theories (for some examples, see Kernohan 1998; Young 2006; Attfield 2009; Jubb 2012; Miller 2012). These questions go beyond issues of global justice and examine the implications of climate change on political theory at the domestic level. If individuals are not responsible, how is it possible for states to justify the implementation of stringent policies to address the problem of climate change? Such matters are part of a larger and classic debate in the field of green political theory about which set of political values, or alternatively which political regime, is best suited to solve the environmental crisis. The debate has given rise to a great variety of positions, with some people arguing that it is possible and others that it is impossible for different political ideologies (liberalism, communitarianism, socialism, etc.) to accommodate the requirements of sustainability (Dobson and Eckersley 2006). Disputes have evolved in particular about the ability of liberal democracy to go green (de-shalit 1997; Eckersley 2004; Wissenburg 2006). The present article situates itself at the intersection of climate ethics and green political theory. My aim is to evaluate to what extent the implementation of stringent climate policies would be compatible with a core value of liberalism, i.e. the principle of neutrality. More specifically, I will focus on one of the main ways to unpack the concept of neutrality, namely the so-called harm principle. This principle states that coercive laws and policies should be restricted to the prevention of harm and should not be justified on the basis of controversial moral values. Since it is clear that 74

3 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE climate change will cause significant harm, the harm principle seems indeed to be a natural candidate for the justification of climate policies (see, for example, Kernohan 1998; Shue 1999; J. Barry 2001; Cripps 2011). I will argue, however, that given the difficulty to attribute causal responsibilities to individuals for emitting greenhouse gases, the harm principle is only marginally relevant, at least in the framework of a liberal atomistic ontology. If this claim is correct, then it will be hard to justify climate policies in a neutral way. This is important because it points directly towards the liberal conception of freedom. Indeed, state neutrality is meant to protect citizens liberty of choice. Showing that neutrality is hard to achieve in the case of climate change means that neutralist liberalism (or at least a certain interpretation thereof; see below) might not be the best doctrine to address environmental problems. Examining this issue thus helps us to understand why liberal democracies seem so reluctant to adopt stringent climate policies. As Elisabeth Cripps points out, there is a tension between the liberal commitment to individual liberty and the need to implement such policies (2011). Unlike Cripps, however, I think that this tension is not so easy to resolve. In particular, as I will argue in the last section, a conflict might exist between freedom as liberty of choice (i.e. the ability to choose one s own lifestyle) and freedom as political liberty (defined here as the ability of citizens to take part in political deliberation and decision-making). 1 The argument will proceed as follows. The second section after this introduction exposes the principle of state neutrality and its connections with the harm principle. The third section puts forward the difficulty of applying the harm principle to the case of carbon dioxide emissions, at least at the individual level. The fourth section discusses the possibility of a neutral climate policy on the basis of a collective harm principle. The fifth section shows that accepting the idea of a collective harm principle entails making a stand on some controversial moral values and that it induces the risk of a technocratic shift if it is nevertheless required that climate policies remain neutral. The concluding section states that climate 75

4 ETHICAL PERSPECTIVES MARCH 2014 change should not be seen as a mere question of carbon accounting, but that it requires an engagement in a substantive debate about values and lifestyles. II. LIBERAL NEUTRALITY AND THE HARM PRINCIPLE The principle of state neutrality is central to political liberalism, finding its origins as far back as the sixteenth century in the idea of toleration. It says that states should remain neutral regarding different conceptions of the good and may interfere with peoples lives only on limited grounds, namely in the name of what is right. This somewhat peculiar division of morality between the right and the good dates back to Kant s ethics. In Kant s terms, the moral law has to be founded on a purely formal principle and not on any empirical fact (Kant 1997). This is a condition to its objectivity and universality. The contrary would mean that individuals are driven by their beliefs and desires, which would make any moral law impossible to establish and would threaten human autonomy. On the Kantian view, the priority of right is both moral and foundational. It is grounded in the concept of a subject given prior to its ends, a concept held indispensable to our understanding ourselves as freely choosing, autonomous beings (Sandel 1982, 9). Hence, the priority of the right over the good is, from the beginning, closely connected to the issue of individual liberty. Contemporary liberals follow Kant in this respect (Rawls 1971; for a very clear interpretation of the Kantian foundations of liberalism, see Sandel 1982). But Kantian transcendental philosophy is rather abstract, and transposing it on the political level implies finding a more concrete and workable criterion, or fixed point, to draw the line between the right and the good. In the field of relational justice (as opposed to distributive justice), 2 the usual liberal criterion is the well-known harm principle. The limit to the action of the state, we will see, is the necessity to prevent individuals from harming other human beings. Beyond that, people should be left free to lead their lives as they see fit. 76

5 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE But let us come back to the principle of neutrality itself. Despite its older origins, the concept as such emerged in the 1970s. Implicitly present in A Theory of Justice, the precise term first appeared under the pen of Robert Nozick (1974). It has since been more accurately described in Ronald Dworkin s article Liberalism, where we read that [s]ince the citizens of a society differ in their conceptions [of what gives value to life], the government does not treat them as equals if it prefers one conception to another, either because the officials believe that one is intrinsically superior, or because one is held by the more numerous or more powerful group (1985, 191). Neutrality has also been considered as the central idea of the modern liberal state by numerous thinkers, including John Rawls (with some qualifications), Bruce Ackerman, Charles Larmore, Gerald Gaus and David Gauthier (Klosko and Wall 2003). But the principle of neutrality is not self-evident and begs at least two questions. Firstly, does this requirement apply to constitutional essentials only, or also to laws and policies? Secondly, when we are talking about neutrality, we are talking about the neutrality of what? Regarding the former question about the scope of the principle, Rawls writes in Political Liberalism that [ ] as a political conception for the basic structure justice as fairness [ ] hopes to satisfy neutrality of aim in the sense that basic institutions and public policy are not to be designed to favor any particular comprehensive doctrine (1996, 193; italics mine). 3 According to Richard Arneson, this is indeed the most coherent position (although Arneson himself rejects the principle of neutrality on the whole). If there are good reasons to adopt neutrality as a principle, why should it be limited to constitutional essentials only? A neutral constitution would leave quite a lot of room for public policies to encourage or discourage certain lifestyles, possibly on the basis of their intrinsic value, and this is precisely what liberals want to avoid (Arneson 2003). Other scholars think, on the contrary, that constitutional rules establishing fair and neutral democratic procedures are enough (De Marneffe 1990; Barry 1995). Answering this question, however, is beyond the scope of this article. We will therefore 77

6 ETHICAL PERSPECTIVES MARCH 2014 narrow our investigation somewhat by simply asking whether neutral climate policies are possible and desirable. With respect to this narrower question, there are usually three ways to interpret neutrality (Arneson 2003; Wall 2007): (i) Neutrality of effect requires that the effects (even unintended) brought about by laws and policies should not favour any particular conception of the good. (ii) Neutrality of goal requires that the actions of the state should not aim to favour one conception of the good over others. (iii) Neutrality of justification holds that the state may interfere with individual choices, but never in the name of the intrinsic superiority of one conception of the good. The state should always justify its actions, laws and policies in a neutral way, i.e. by reference to the right. The most popular version among political theorists is definitely the neutrality of justification. Most authors think that neutrality of effect is unrealistic and impracticable, each policy having various and contradictory effects on different conceptions of the good (Raz 1986; Arneson 2003). Some maintain, however, that both justifications and effects are important (Waldron 1989; Coglianese 1998). Neutrality of goal, on the other hand, poses the problem of how to know what the genuine motivations of the government are. As aims usually remain undisclosed, it would be difficult to assess the neutrality of a government this way. Furthermore, state officials may have not just one, but a variety of motives for implementing public action (Klosko and Wall 2003). If neutrality of justification is the most plausible interpretation of this principle, the next question must then be: what is a neutral justification? Liberals usually accept two kinds of neutral justification. The first addresses a distributive issue and stresses the need to provide each individual with the goods and resources necessary to fulfil their conception of the good life. The second is, in a more relational perspective, the aforementioned harm principle (Coglianese 1998). 4 We will see in the next section that the 78

7 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE distributive and relational levels are tightly interwoven in the case of climate change (and in the case of global environmental problems more generally). But my aim now is to focus on the relational side of the issue, more precisely on the legitimation of coercive climate policies by means of the harm principle. Why so? After all, most political theorists see climate change as a question of equity and fair distribution of burdens and benefits (Vanderheiden 2011). There is no point in denying the fairness issue at stake with problems associated with climate change, but it is important to stress the fact that the first moral motivation to fight it is precisely to avoid harm. Atmospheric and eco-systemic absorptive capacity is not a scarce resource per se as Singer, for example, suggests (2002, 29). It is not physically limited. We could put as much CO 2 into the atmosphere as we like if we were ready to assume the costs and damages it would bring about. As we will see, for climate policies to be workable, they have to proceed as if CO 2 emissions were scarce and treat this as a distributive issue, but this coercive way of proceeding is precisely what has to be justified from a liberal point of view. The harm principle seems hence to be the most obvious starting point for our purpose. As already mentioned, the harm principle, according to liberal thought, is the most prominent justification of the use of coercion by the state, but it is not the only one. Several liberals also recognize the so-called offense principle as legitimate (Hart 1963; Feinberg 1984; Raz 1986). As its name suggests, the offense principle justifies state intervention in order to prevent offenses, i.e. emotional harms to individuals. Nevertheless, this principle is very unlikely to be useful to address global environmental issues in the present context. Legitimating policies by means of the offense principle would suppose that a significant number of citizens have such an ecological sensitivity that the mere knowledge of environmental deterioration would be shocking and almost unbearable for them. This could be plausible in the field of animal protection, but surely not in that of climate change. The harm principle, on the contrary, points directly to the core issue of environmentalism, namely the damages resulting from 79

8 ETHICAL PERSPECTIVES MARCH 2014 our way of treating and using nature. This is why it has been seen as a good candidate for the justification of green liberal (climate) policies (see, for example, Kernohan 1998; Shue 1999; J. Barry 2001; Cripps 2011). As originally formulated by John Stuart Mill in his On Liberty, the harm principle is supposed to be [ ] the only purpose for which power can be rightfully exercised over any member of a civilized community, and this purpose is to prevent harm to others. But it is also characterized as a very simple principle, [ ] entitled to govern absolutely the dealings of society with the individual (Mill 2003, 80 italics mine). We have seen that it is not the only principle of this sort in liberal theories, although the most important one and the most relevant to our issue, and we must add that it is actually not simple at all. For the harm principle to be of any use, one has to be much more specific and clarify at least four points (Feinberg 1984): (i) Who are the others? (ii) What exactly counts as harm? (iii) Which kind of action may be considered as harmful? (iv) What kind of causal link between actions and harms is relevant? Each of these four points raises difficult questions, and applying them to environmental issues makes them even more difficult. Examining them all in any detail would take us far beyond the scope of the present contribution. I will limit myself, therefore, to a brief comment on the first three items and discuss the fourth at greater length. Since Joel Feinberg has clearly written more extensively and in depth on the subject than other scholars, I will rely on his work to characterize the standard liberal version of the harm principle. III. CLIMATE CHANGE AND AVOIDING HARM TO OTHERS (i) The first question relates to the definition of the moral community involved in the harm principle. It is a much-debated issue among 80

9 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE environmental philosophers, which has given rise to several new fields of investigation. While the traditional harm principle concerns relations between contemporary and nearby humans (Raz 1986; Jamieson 1992; Young 2006; Attfield 2009), global environmental problems (among others) raise several questions. Do we have moral duties toward distant strangers and should they therefore be included in the scope of the harm principle (this is an issue addressed within the field of global justice)? Similarly, do we have duties toward human beings who are not yet born (intergenerational justice)? Should we extend the harm principle to nonhuman beings (environmental ethics)? Can the notion of harm be applied to abstract entities, such as the global climate, ecosystems, or to a rather vague notion of common ecological good? Philosophers have written extensively on these issues and it seems that no evident and consensual answer is available thus far. The most common position in the field of climate change, however, is to consider all present and (some) future human beings on earth as part of the moral community, to the exclusion of non-humans (with some exceptions; see, for example, Singer 2011; Cripps 2013). (ii) Feinberg defines the term harm as [ ] a setting back, or defeating of an interest. The interests in their turn are [ ] all those things in which one has a stake. Someone s interest in the singular is then [ ] the harmonious advancement of all one s interests in the plural (1984, 33-34). The test supposed to show whether harm has been inflicted is to assess whether one s interest is in a worse condition after a given action than it would have been if that action had never occurred. This brings us back to the problem of intergenerational justice because it is not clear, according to this definition, that future generations may be harmed. According to the non-identity problem put forward by Parfit, future people will not be [ ] in a worse condition due to the warming climate, because they would not have been born at all if energy and consumption policies had been different (Parfit 1986; Feinberg 1984, 103). This difficulty in the 81

10 ETHICAL PERSPECTIVES MARCH 2014 application of the harm principle to climate change is not easily overcome and suggests that our moral duty toward future generations (if any) cannot be conceptualized in terms of harm avoidance, at least at the individual level (Callicott 2011). However, this is not an issue we need to develop here. It is enough to point out that there is some moral controversy about our duties toward future people. Another important point is Feinberg s assertion that only human-induced setbacks of interest are harms in the relevant sense: [Interests] can be blocked or defeated by events in impersonal nature or by plain bad luck. But they can only be invaded by human beings. [ ] It is only when an interest is thwarted through an invasion by self or others, that its possessor is harmed in the legal sense (1984, 34). This seems sensible, as the purpose of the harm principle is to regulate relations between human beings. It would indeed be quite odd to see the legislator prescribe behaviour to earthquakes or floods. But are the damages resulting from Hurricane Katrina in 2005 due to a natural phenomenon, to human-induced climate change, or to the neglect of local authorities having failed to reinforce the seawalls in time? Environmental problems are usually hybrids and climate change works most of the time as an amplifier of pre-existing phenomena. It might be tricky to disentangle the human part from the natural one, even though we know that human acts contributed to the disaster. (iii) Not every action causing a setback of interest is subject to state regulation. There are circumstances in which the harms produced are considered legitimate. According to Feinberg, only setbacks of interests that are also wrongs (i.e. injustices) count as harms in the sense of the harm principle. Harmless wrongs are quite rare (even trespassing on someone s property without damaging it is a kind of harm), but non-wrongful harms are frequent. They include setbacks to which the victim has consented, those inflicted in the context of a just competition or, more generally, damages that are not protected by any moral right. We need to ask here if climate change driven damages are not simply non-wrongful harms. 82

11 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE A wrong is a violation of a right, and a right is a claim against one particular individual or against all individuals (Hohfeld 1917; Feinberg 1984, 109ff; Wenar 2010). Do people have a legitimate claim (i.e. a claim backed by valid reasons) that all other individuals must refrain from emitting carbon dioxide? It is not self-evident, since carbon dioxide is not a pollutant (it is not toxic as such) and there is nothing intrinsically bad in activities such as driving, flying or heating one s house. Some authors maintain that in the case of accumulative harms, even if people have a right not to have their interests obstructed, this is not enough to impose a duty on all others to refrain from performing the incriminated actions (Raz 1986; Kernohan 1995). 5 Moreover, demonstrating that someone emitting carbon dioxide is violating the right of others not to suffer from global warming implies proving that climate change is a consequence of that person s CO 2 emissions. This leads us to the next section on causality. (iv) For state action against harmful acts to be justified by means of the harm principle, it is of course necessary that a causal link be recognized between the action and the harm. This is a well known legal problem regarding the imputation of responsibility. Which criteria should be used to judge someone responsible for damages? The first thing to note is that multiple causality is the norm more than the exception, even in a case as clear as the murder of an innocent person by a crazy killer shooting at pedestrians in the street. One could say that if the victim had not stopped just before the shooting to talk to a tourist asking for directions, he or she would not have met the killer and would not be dead. Therefore, the intervention of the tourist is also one of the causes of the person s death. Lawyers usually have to select one cause as being the cause of the victim s death. According to Feinberg, there are traditionally two criteria used to determine the legal cause among all causal factors: the cause must be genuine (in other terms a necessary condition for the harm) and proximate (in other terms a particularly substantial and direct causal factor; 1984, 119). 83

12 ETHICAL PERSPECTIVES MARCH 2014 In the example above, the tourist s intervention is a necessary condition for the victim s death, but it is not a proximate cause. We see immediately that these two criteria do not work in the case of climate change. Personal greenhouse gas emissions are neither a necessary condition for climate change, nor a substantial causal factor. These two traditional criteria work for the most usual cases in criminal law, but they are not helpful for a number of cases, including accumulative harms such as climate change or other environmental problems related to consumption patterns. On this basis, personal CO 2 emissions can be characterized neither as harmful nor as wrongful. The puzzle associated with the imputation of responsibilities in the case of climate change results from two salient features of the problem: the dispersion of causes and effects and the fragmentation of agency (Jamieson 1992; Gardiner 2011, 24). Dispersion of causes and effects refers to the fact that whatever the location of greenhouse gas emissions, they will rapidly be dispersed in the whole atmosphere and their impact spread all over the world. As already mentioned with the example of Katrina, it is very difficult to establish a link between climate change as a global phenomenon and specific meteorological events (hurricanes, floods, droughts, etc.). Climate change works as an amplifier and makes extreme events more frequent, but it is hard to know to what extent exactly. It is absolutely impossible, however, to link any particular emission of carbon dioxide with specific damages. Furthermore, there is most likely no linear relation between the amount of greenhouse gases emitted and the severity of the harms (Lenton et al. 2008). Impacts of climate change are diverse, variable and subject to considerable uncertainty. For all these reasons, it is not possible to impute responsibility by means of a charge more precise than increasing the greenhouse effect or perturbing the global climate. These matters of fact will, in turn, have adverse impacts on human societies, but they are not related to any particular action. Fragmentation of agency, on the other hand, relates to the accumulative nature of climate change, to the fact that each individual contribution 84

13 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE is not sufficient by itself to increase the CO 2 concentration in the atmosphere. Indeed, terrestrial and oceanic sinks remove carbon dioxide from the atmosphere up to a certain level. If the overall carbon emissions exceed the absorption capacity of the sinks, then the CO 2 concentration in the atmosphere rises and the greenhouse effect is reinforced. Under a given threshold, anthropogenic emissions of greenhouse gases are therefore harmless. 6 This threshold is around half of today s global emissions. China and the USA each contribute approximately 20% of global emissions. This means that there is no country in the world and, of course, no individual which produces emissions significant enough to make the CO 2 concentration rise by itself. Some researchers, such as John Nolt, have tried to quantify the share of harm produced by the emissions of an average American during his or her entire life. The result of Nolt s calculation is that the standard American is responsible for the serious suffering or death of between one and two persons over the next millennium (Nolt 2011). But this way of reasoning faces various difficulties. First, the way Nolt presents the responsibility of the greenhouse gas emitters is misleading. 7 It is not the same to be the cause of the direct death of one specific individual as it is to be implicated for a tiny part (one twobillionth, according to Nolt) in the causes indirectly leading to the death of numerous statistical individuals. Furthermore, it is impossible to isolate the effects of one individual s emissions because only the total amount is relevant in this respect, and that depends on the behaviour of all other individuals (Kawall 2011; Sandler 2011; Schinkel 2011; Seager, Selinger and Spierre 2011). Additionally, even if we could ascertain with precision the contribution of each person to the global harm, only those who have control over the means to avoid greenhouse gas emissions would have a moral responsibility for these harms. It is not evident that most of the people have such control (Hartzell 2011; Schinkel 2011; Seager, Selinger and Spierre 2011; Jubb 2012). On the whole, it seems quite difficult to impute full-fledged individual responsibilities in the case of climate change, which makes the use 85

14 ETHICAL PERSPECTIVES MARCH 2014 of the harm principle impossible in its traditional individualistic interpretation. Feinberg himself is aware of these difficulties (writing about the similar case of pollution) and acknowledges that If there is no way after the fact to tell to which actions to impute the harm, then there can be no way before the fact for legislatures to decide which actions to prohibit because of their harm production. The harm principle in that case is of no use at all (1984, ; see also: Sinnott-Armstrong 2005; Adler 2007). There have been attempts to make sense of a collective responsibility and to justify an accumulative harm principle. Andrew Kernohan, for example, points out that the interpretation of the harm principle is ambiguous. Should the principle prevent harm or harmful conduct (Kernohan 1998)? Due to its original application in the field of criminal law, [ ] harms must be assigned to individuals in order for legal mechanisms of guilt and liability to work (1998, 72). The harmful conduct interpretation is thus well-suited to the individualist background of our legal system. But shifting the focus to the harms themselves, to the setbacks incurred by people s interests, would allow for an elaboration of an accumulative version of the harm principle. In dealing with accumulative harms, we must, I think, give up on trying to impute them to individuals. Instead, we must attempt to prevent accumulative harms through state intervention that will be workable and fair, but will not depend on knowing who did what to whom (Kernohan 1998, 75). Similarly, Elizabeth Cripps argues for a weak collective responsibility of the emitters as a putative group (i.e. a set of individuals who do not yet constitute a group in the strong sense, but are nonetheless grouped by the predictable harmful impact of their combined actions ) and for a collective version of the harm principle (Cripps 2011, 176; on collective responsibility see also: Young 2006; Vanderheiden 2011). This line of reasoning is attractive since it is based on the idea that accumulative harms must be prevented even though state intervention is difficult to justify with traditional liberal principles. The problem, however, is that this kind of collective responsibility does not 86

15 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE fit well with the usual liberal atomistic ontology. Atomism states that individuals are self-sufficient and constitute the fundamental reality on which political and legal principles must be based (Taylor 1985). In this context, society as a whole or putative groups have no existence in their own right and it is hard to justify such a thing as collective responsibility for unrelated and uncoordinated individuals. As John Baird Callicott puts it: The colossal moral problem presented by the prospect of global climate change demands a shift from ethical individualism to ethical holism in regard to moral agency as well as to patiency (Callicott 2011, 116). 8 Simply stating that polluters constitute a group does not solve the problem. In what follows, I will investigate the consequences of this for the principle of neutrality. IV. FROM COLLECTIVE RESPONSIBILITY TO CLIMATE POLICIES: IS NEUTRALITY POSSIBLE? In the previous section we concluded that in the case of climate change, responsibilities could only be formulated in a quite general and abstract way of the type contribution to the increase of the CO 2 concentration, dissociated from actual particular damages. Furthermore, this quite general responsibility is collective and can hardly be attributed to individuals. This is puzzling, because significant climate policies would obviously have effects on the lives of individuals. 9 How do we move then from collective responsibility to the coercion of individuals? The answer is not straightforward, as liberal values and institutions are precisely designed to avoid as much as possible the coercion of individuals on the basis of collective arguments. There is clearly a question of individual liberty at stake here and that may explain why liberal democracies seem so reluctant to adopt stringent climate policies. After all, within the liberal paradigm there is no real argument for the extension of the harm principle to collective harms, apart from the fact that we cannot just leave these problems unaddressed (an opinion I share with Kernohan and Cripps). 87

16 ETHICAL PERSPECTIVES MARCH 2014 Hence, the only solution to justify the legal regulation of carbon dioxide emissions by means of the harm principle is to rely on a distributive theory specifying the amount of emissions each individual is entitled to and to arbitrarily define emissions exceeding this amount as harmful and wrongful. As Feinberg puts it: [ ] these activities [such as driving an automobile or generating electricity] can be meaningfully condemned only as violations of an authoritative scheme of allocative priorities (1984, 230; italics mine). What are the consequences of this for liberal neutrality? It is plain that the neutrality of effect would not be possible with such a scheme. As different lifestyles have very different carbon footprints, stringent climate policies of the sort needed to address the problem with any success would not be coercive to the same degree for everyone. An allocation scheme attributing, for example, an equal amount of CO 2 emissions per year to each citizen would be felt as much more restrictive by lovers of four-wheel drives and quick week-end getaways with low cost companies than by ascetic ecologists. To avoid this, an alternative distribution might be to ask each citizen for an equal reduction, in reducing say his or her annual emissions by 80% (in line with the target of the EU for ), based on a grandfathering type baseline. This would be unfair, however, because it would give more advantages to people having previously emitted large amounts of CO 2 up to that point. Moreover, it would not help much in terms of neutrality of effect. There would still be discrepancies between different lifestyles. To take the example of leisure time: the lover of long distance travel would certainly not be able to afford a long haul flight every year, even though he would have a higher annual quota than other individuals. The passionate philatelist, however, would be able to carry on with his or her passion without any change, but he or she would have to cut down his or her emissions from other areas such as daily transportation, heating and so on (provided that philately does not emit any CO 2 at all, which seems plausible). Not only would such a scheme have different effects on people s lives, but it would 88

17 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE also be blind to the differences between types of activities, such as luxury or leisure, and to the fulfilment of basic needs (Shue 1993). While neutrality of effect seems impossible, is at least neutrality of justification plausible nevertheless? We have seen that, according to the harm principle, laws or policies are considered neutral if their justification is to prevent harm. But we have also seen that the harm principle is only weakly satisfied in the case of climate change, due to uncertainties about concrete harms and causal obscurities. Furthermore, according to Feinberg, liberalism demands that harm resulting from the absence of regulation be balanced against harm resulting from state action. Indeed, if this were not the case, a total ban on automobile use could be justified in accordance with state neutrality, which seems counterintuitive (Meaton and Morrice 1996). Hence, regarding greenhouse gas emissions, indirect and unspecific harms (this refers to the dispersion of causes and effects, see section II/ii) having a degree of uncertainty would be compared to direct, well-defined and certain harms due to regulation (economic harms, for example). We can thus understand why liberal democracies are usually reluctant to implement significant climate policies, and more generally reluctant regarding regulation in situations of uncertainty. As Philip Pettit puts it: The state should intervene if and only if reasonable estimates of probability show that the level of interference in the society as a whole is likely to be decreased by the intervention. But since the interference associated with any state initiative is certain to occur, and the interference it may help to reduce is only a matter of probability, this requirement easily strengthens into a presumption against state initiative (1993, 320). Consequently, a precautionary attitude such as the one needed to address climate change may be hard to implement in the framework of the harm principle. If, however, we acknowledge that the overall consequences of all individual emissions far outweigh the harm caused by regulation, and if, at the same time, we accept that collective responsibility and an accumulative version of the harm principle make sense (let s grant this for the moment, even though we have seen that it is hardly compatible with the 89

18 ETHICAL PERSPECTIVES MARCH 2014 atomistic ontology of liberalism), we may be able to justify coercive greenhouse gas regulations. What would this kind of regulation look like? For a policy to stay in accordance with the neutrality of justification, it has to respond to the harm only and to remain insensitive to other aspects of the harmful actions (such as their intrinsic value; Kernohan 1998). Furthermore, all actions causing the same kind of harm should be encompassed in the policy (otherwise the situation would be similar to prohibiting murder with guns but allowing murder with knives). Given that almost every type of human activity produces CO 2, the only way to do this is to focus on the very cause of the harm, namely carbon dioxide emissions. Thus, a neutral climate mitigation policy would take the form of a scheme of individual carbon allowances. 11 It could not, for example, be confined only to the regulation or prohibition of certain activities and lifestyles. How would it be possible to simultaneously justify the regulation of SUVs and an absence of regulation of low cost flights? Since both are contributing to the greenhouse effect, policy makers would have to rely on additional justifications, which would be prohibited by the doctrine of neutrality. Moreover, in order to avoid the creation of huge immediate harm due to regulation, a neutral climate policy should be incremental and planned over the long term. We cannot, of course, ask people to cut down their emissions by eighty percent right now. A decreasing emission path would have to be designed, ending up with an optimal (i.e. creating as little harm as possible) allocation of carbon dioxide rights. V. A SLIPPERY SLOPE TOWARD CLIMATE TECHNOCRACY? Affirming neutrality of justification as a prominent feature of the political principles governing state action implies relying exclusively on the harm principle for the justification and elaboration of policies and legislations. There are, therefore, two possible solutions: either the harm principle in its classical individualist version is not applicable to climate change (and hence neither is neutrality), or the harm principle may be extended to 90

19 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE cover accumulative harms. But implementing policies on this basis requires setting up an allocation scheme first. Feinberg refers to such a scheme as authoritative. What does that mean exactly? Certainly not that the scheme must be imposed in an authoritarian way. What Feinberg probably has in mind is the fact that the distribution of allowances (individual carbon quotas in our case) is necessary to the attribution of responsibilities (i.e. arbitrarily defining emissions exceeding one s quota as harmful) and that, at the same time, the size of these quotas cannot be determined with traditional legislative or political procedures. The relationship between actions and harm must be circumscribed as objectively as possible because if it is not, if it is just arbitrarily chosen by the government, for example, then the harm principle would be of no use at all. The role of the harm principle is indeed to fix limits to the state s interference with individual liberties. Therefore, letting the government define what constitutes harm is equivalent to letting it define what its own limits are. This cannot be neutral. Furthermore, without some specification, virtually every action could be considered as creating harm in some way. We have seen above that the distinction between the right and the good needs a fixed point, as objective as possible, which, as we shall see, seems to be lacking in the case of climate change. For the harm principle to be effective in distinguishing neutral policies from others, the definition of harm must come from outside the political arena. The question then is: who should formulate the allocation scheme? Cases of accumulative harms are very sensitive to circumstances and empirical facts (Feinberg 1984, 226). Indexing the allocation of allowances on harms as objectively as possible requires wide investigation and expert knowledge. In the simplest case, climate scientists would have to determine above which precise threshold global emissions begin to be harmful. This is usually considered to be around half of today s global emissions, which would leave a quota of one to two metric tons of CO 2 per year to each human on earth. 12 But as this goal is very unlikely to be reached in the west within the next decades, the most plausible option is 91

20 ETHICAL PERSPECTIVES MARCH 2014 that experts would have to design an emission path that balances harms due to climate change in an optimal way with harms due to greenhouse gases regulation. In cases as complex as climate change, however, the definition of what constitutes a harm may involve many controversial assumptions. John Nolt, for example, in his attempt to quantify the harm produced by the average greenhouse gas emissions of Americans, makes the following assumptions: (i) (ii) The contribution of the average American to climate change is best understood as the total American greenhouse gas emissions divided by the US population (2011, 3). The relevant emissions are only those produced on American territory (to the exclusion of those embodied in manufactured products). (iii) The human metabolic production of greenhouse gases does not count. (iv) The baseline considered is greenhouse neutrality (i.e. the quantity of harm produced is calculated by reference to an ideal scenario involving no emission at all). (v) It is possible to harm future people. (vi) Only harm to human beings counts. (vii) Only serious suffering and/or death count. (viii) Human suffering and death, even far away in the future, should not be discounted. (ix) Future benefits cannot compensate harms. (x) Harm is proportional to the quantity of emissions. Some of these assumptions (technical assumptions) are needed as simplifications for the calculation to be possible or are necessary because we do not have enough knowledge about the facts (i, ii, iv, vii, ix, x). Other assumptions (moral assumptions) are the expression of values and conceptions of the good (ii, iii, v, vi, vii, viii, ix). In both cases, assumptions may considerably change the results of the calculation and modify our conception of what a climatic harm is. The state, therefore, faces two choices: whether it takes a stand on moral assumptions, in which case it would not be neutral anymore, or whether it delegates the task of addressing 92

21 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE those issues to experts, with the ensuing risk of a drift to technocracy. In the latter case, scientists and experts would make decisions about moral issues on which they have no legitimate authority. And since these decisions would have an impact on the size of the carbon allowances, it is as if the said experts had been granted the power to determine which lifestyles may be maintained and which may not. Neutrality in the case of climate change, therefore, seems either impossible or obliged to follow barely democratic procedures. Of the two options, the former is clearly the most desirable in my view. The aim of the doctrine of state neutrality is to protect citizens against state interference in their liberty of choice. Here we see, paradoxically, that focusing too much on liberty of choice may endanger political liberty. This is so because the problem of carbon dioxide emissions concerns all areas of social and economic life, as much for individuals as for companies or institutions, and because it is a genuinely moral issue. The technical regulation of other more localized environmental issues, such as the prohibition of one particular industrial pollutant or the regulation of CFC emissions, would not necessarily involve the same problem. Even in the case of climate change, to be sure, an allocation scheme could be of some use to ensure the efficiency and the flexibility of overall emissions reduction. But it should not divert the political community from the necessity of political debate and political decisions about moral values such as those included in the aforementioned assumptions. It is not that expert knowledge is not necessary. On the contrary, we need a high degree of knowledge to cope with climate change with any chance of success. But as we have seen, there is a whole range of questions that science cannot easily answer. The task of answering those moral questions (perhaps with the help of experts and on the basis of scientific knowledge) should be left to democratic debate and to the political decision-making process. But if so, staying within the framework of the neutrality of the state seems difficult, since policy design has to rely on controversial moral values. As Avner de-shalit puts it more generally: 93

22 ETHICAL PERSPECTIVES MARCH 2014 [ ] environmentalists do not simply express private preferences, [they] put forward ideas of the good, based on scientific knowledge and phrased in moral terms (1997, 401). VI. CONCLUSION I have shown that implementing neutral climate policies, at least significant ones, seems to be an ideal that is hard to achieve. Climate change is for a large part an ethical issue (Gardiner 2011) and resolving it will imply giving answers to hitherto controversial moral questions. But this is not the end of the story. Even if we could find a rational and unanimous answer to the definition of climatic harms, other moral issues would still remain. Since, according to neutrality, the state must prevent harm without taking into account the moral worth of different lifestyles and conceptions of the good, there is a risk that climate policies will become mere bureaucratic devices attributing and withdrawing carbon allowances. The doctrine of neutrality tends to turn the issue of climate change into a mere question of carbon metric. I concede that a distinction between subsistence emissions and luxury emissions (Shue 1993) could be compatible with neutrality, in line with the liberal concern for the protection of fundamental interests. But beyond that, the ends for which greenhouse gases are emitted would be totally irrelevant if climate policies were to be neutral (provided these ends are not harmful for other reasons). It would not matter whether CO 2 emissions serve selfish interests, the common good or altruistic actions; whether one flies for pure leisure, for business or to visit one s family. Nor would it matter if one spends one s carbon quota with caution, adopting a climate friendly lifestyle, or if one squanders amounts of CO 2 just because one can afford to buy extra quotas. We will have to make greenhouse gases scarce by drastically reducing emissions if we want to avoid a catastrophic climate disaster (IPCC 2007; Stocker 2013). Hence a new question arises: when there is a shortage of an important resource, are all uses of this resource equally legitimate? 94

23 AUGUSTIN FRAGNIÈRE CLIMATE CHANGE, NEUTRALITY AND HARM PRINCIPLE While I cannot demonstrate it here, I am inclined to think that the answer to this question is no. My point here is not to say that every action involving greenhouse gas emissions should be scrutinized by a kind of moral police. It would, of course, be neither possible nor desirable for a society to have an official opinion on each lifestyle and on each moral question. On the contrary, my point is that the doctrine of neutrality, by considering conceptions of the good as strictly a private matter, is hindering political debate on the fundamental values and lifestyles underpinning the socio-economic organization of western countries. Climate change is one of the most challenging issues that liberal democracies are facing. It should be the occasion of political action for a real change toward more sustainable lifestyles and patterns of consumption, socially and environmentally. To achieve this we will need to reflect on some of our most deeply held values. 13 WORKS CITED Adler, Matthew D Corrective Justice and Liability for Global Warming. University of Pennsylvania Law Review 155/6: Arneson, Richard Liberal Neutrality on the Good: An Autopsy. In Perfectionism and Neutrality. Edited by George Klosko and Steven Wall, Lanham, MD: Rowman & Littlefield. Attfield, Robin Mediated Responsibilities, Global Warming, and the Scope of Ethics. Journal of Social Philosophy 40/2: Barry, Brian Justice as Impartiality. Oxford: Oxford University Press. Barry, John Greening Liberal Democracy: Practice, Theory and Political Economy. In Sustaining Liberal Democracy. Edited by John Barry and Marcel L J Wissenburg, London: Palgrave Macmillan. Callicott, John Baird The Temporal and Spatial Scales of Global Climate Change and the Limits of Individualistic and Rationalistic Ethics. Royal Institute of Philosophy Supplement 69: Caney, Simon Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens. Journal of Political Philosophy 22/3: Coglianese, Cary Implications of Liberal Neutrality for Environmental Policy. Environmental Ethics 20: Constant, Benjamin Political Writings. Edited by Biancamaria Fontana. Cambridge: Cambridge University Press. 95