The Poverty of Theory: Public Problems, Instrument Choice, and the Climate Emergency

The instrument choice debate has been a fixture of environmental law for much of the last three decades. While this debate has led to a much sharper focus on the relative merits of different regulatory tools in confronting environmental problems, it has also left the field unprepared to conceive and implement an adequate response to complex, multifaceted challenges such as climate change. Using the case of emissions trading, this Article investigates how the instrument choice debate has impoverished our conception of government and limited our capacity to respond to the climate crisis. The central claim is that the overly abstract theory of instrument choice that has underwritten widespread enthusiasm for emissions trading and other forms of carbon pricing over the last three decades has led to a sharply diminished view of public engagement and government problem solving. In advancing this claim, the Article makes three main contributions. First, it provides a critical intellectual and institutional history of emissions trading that, for the first time, situates it within a broader history of instrument choice in law, economics, and political science. Second, it uses this history to develop and demonstrate a more reflexive and critical theory of policy instruments and government problem solving, showing

The Poverty of Theory: Public Problems, Instrument Choice, and the Climate Emergency William Boyd* The instrument choice debate has been a fixture of environmental law for much of the last three decades. While this debate has led to a much sharper focus on the relative merits of different regulatory tools in confronting environmental problems, it has also left the field unprepared to conceive and implement an adequate response to complex, multifaceted challenges such as climate change. Using the case of emissions trading, this Article investigates how the instrument choice debate has impoverished our conception of government and limited our capacity to respond to the climate crisis. The central claim is that the overly abstract theory of instrument choice that has underwritten widespread enthusiasm for emissions trading and other forms of carbon pricing over the last three decades has led to a sharply diminished view of public engagement and government problem solving. In advancing this claim, the Article makes three main contributions. First, it provides a critical intellectual and institutional history of emissions trading that, for the first time, situates it within a broader history of instrument choice in law, economics, and political science. Second, it uses this history to develop and demonstrate a more reflexive and critical theory of policy instruments and government problem solving, showing * Michael J. Klein Chair and Professor of Law, UCLA School of Law; Professor, UCLA Institute of the Environment & Sustainability. Earlier versions of this Article were presented at workshops and conferences at Boston University, The European Law Institute, UCLA, and UC Santa Barbara. Thanks to the participants for helpful comments. Special thanks to Doug Kysar, Gregg Macey, Stephanie Pincetl, Alex Wang, and Shelley Welton for helpful feedback, to Sean Anderson and Matthew Gardner for excellent research assistance, and to the editors of the Columbia Journal of Environmental Law for outstanding editorial work during the pandemic. Some of the initial thinking for this project was developed for the Festschrift in honor of Professor Lesley McAllister hosted by the Center for Progressive Reform in January 2017. This Article is dedicated to Lesley, whose careful empirical work on several actually existing cap-and-trade programs stands as a reminder of the importance of always putting theory into a robust dialogue with the evidence. INTRODUCTION For more than thirty years, the instrument choice debate has preoccupied environmental law, dramatically reshaping our conception of the regulatory state and its capacity to respond to environmental challenges. 1 The looming climate emergency, 1. See, e.g., Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE L.J. 677, 679 (1999) ("Contests to crown the best regulatory instrument have been the ceaseless sport of environmental law."). As understood here, a policy instrument is a discrete method or mechanism that structures action in a particular way to address a particular problem. Within the field of environmental law, examples include health-based standards, product-safety requirements, technology controls, performance standards, taxes, fees, tradeable permits, and information disclosure requirements, among others. The instrument choice together with other crises such as the COVID-19 pandemic and structural inequality, make clear that the policy instrument theory of state capacity we have been working with since the 1980s is woefully inadequate. 2 The idea that we can select the appropriate tool from a menu of options to solve the problem at hand has proved to be both politically naïve and unworkable in practice in the face of complex challenges. While there is a widespread recognition in the current moment that we need a new, reinvigorated conception of government to respond to the multiple, compounding crises that we confront, we still have some significant intellectual house cleaning to do in order to understand the legacies of the instrument choice debate and what an alternative approach might look like.
This Article takes up that task. Using the case of emissions trading, the Article investigates how the instrument choice debate has impoverished our conception of government and limited our capacity to respond to the climate crisis. It argues that the overly abstract theory of instrument choice that has underwritten widespread enthusiasm for emissions trading and other forms of carbon pricing over the last three decades has worked to diminish our understanding of climate change as a broad public problem and has undermined our ability to mobilize the power of government to respond. In advancing this argument, the Article situates emissions trading within a broader history of instrument choice in law, economics, and political science, showing how the debate over regulatory debate thus refers to the question of which instrument is most appropriate for a particular problem or set of problems. Within environmental law, much of the debate has been structured around the relative merits of more prescriptive instruments, such as standards, and market-based instruments, such as taxes or tradable permits. See Parts I and II infra for a more detailed discussion. It is important to recognize, however, that the instrument choice debate and the approach to government that it represents goes well beyond environmental law. For a broad survey of policy instruments across multiple domains, see THE TOOLS OF GOVERNMENT: A GUIDE TO  2. As used here, "the policy instrument theory of state capacity" refers to a conception of government problem-solving focused on the collection of tools and techniques that governments deploy in response to specific problems. It is a highly technocratic conception of state capacity that often ignores the people, relationships, and institutional frameworks that allow governments to do their work and implement specific policies. The phrase is taken from SASKIA SASSEN, TERRITORY, AUTHORITY, RIGHTS: FROM MEDIEVAL TO GLOBAL ASSEMBLAGES 227 (2006). See also Parts I and III.A infra.
instruments in environmental law reflected and drew upon conceptual trends that had been underway since the middle of the twentieth century. The Article then uses this history to develop and demonstrate a more reflexive and critical theory of policy instruments and government problem solving that uncovers some of the ways in which the mainstream instrument choice debate has constrained our conceptions of the regulatory state and its capacity for climate action. Finally, the Article advances a series of normative claims that seek to rethink and reimagine a more responsive and expansive understanding of public problems and state capacity in the face of an accelerating climate crisis.
The choice of emissions trading is important for at least two reasons. First, the general enthusiasm for emissions trading among economists, lawyers, and policymakers grew directly out of the instrument choice debate of the last quarter of the twentieth century and in many ways reflects the power and influence of that framing. Second, emissions trading and other forms of carbon pricing have dominated climate policy discussions for almost three decades. 3 In the process, they have emerged as among the most influential cosmopolitan policy projects operating in the world today, despite the fact that their actual record of success is quite limited and despite a growing recognition that they are not capable of doing the work needed to save the climate. (2020) (arguing that "in the long term, a truly meaningful, economy-wide U.S climate policy will likely need to have carbon pricing at its core, either in the form of a carbon tax or a cap-and-trade system."). See also Part II infra. As is generally accepted in the economics and legal literatures, carbon pricing includes both emissions-trading systems and carbon taxes. Of course, emissions trading and pollution taxes can also be used for other pollutants. [I]nstruments geared toward cost reductions at the margin cannot be expected to achieve such structural change on their own."); Jessica Green, Does Carbon Pricing Reduce Emissions? A Review of Ex Post Analyses, 16 ENV'T RES. LETTERS 1, 2 (2021) (finding that carbon pricing schemes have had limited impacts on actual emissions and observing that "the mismatch between the within the field of environmental justice have long criticized the uneven distributional impacts of emissions trading, focusing on how these programs can exacerbate and add to the unequal pollution burdens already affecting frontline communities. 7 Outside of law, longstanding critiques from the left have tended to see market-based approaches as a false solution-a doubling down on the logic of markets and neoliberalism that many see as the driving force behind global climate change. 8 Why should we accept, these critics ask, the current neoliberal order as inevitable, much less listen to those who insist that any response must take place within that system. 9 More centrist scholars have focused on political dynamics to explain the limits of emissions trading and other forms of carbon pricing, arguing that these instruments have been stifled by a lack of political will rather than by any inherent defects in the instruments themselves. 10 If politicians had the guts to use these instruments as intended, this argument holds, emissions trading or a carbon tax would be able to deliver substantial emissions reductions at significantly lower cost than alternative approaches. But, because they have so far been unable to muster sufficient political courage, policymakers have tended to adopt piecemeal and anemic carbon-pricing programs. The overall effect, as one observer put it, is more like a narcotic than a panacea. 11 7. See, e.g., Alice Kaswan, Environmental Justice and Environmental Law, 24 FORDHAM ENV'T L. REV. 149, 161 (2013) (discussing environmental justice criticisms of emissions trading).
8. See, e.g., PHILIP MIROWSKI, NEVER LET A SERIOUS CRISIS GO TO WASTE: HOW NEOLIBERALISM SURVIVED THE FINANCIAL MELTDOWN 338 (2014) ("The project to institute markets in pollution permits is a neoliberal mid-range strategy, better attuned to appeal to neoliberal governments, NGOs, and the more educated segments of the populace, not to mention the all-important FIRE [finance, insurance, and real estate] sector of the economy.").
9. See, e.g., Larry Lohman, Financialization, Commodification, and Carbon: The Contradictions of Neoliberal Climate Policy, 2012 SOC. REG. 85, 90 (2012) ("Like other ecosystem services markets, carbon markets aim at creating and stabilizing new areas for capitalist activity, but also, more fundamentally, at securing those background conditions for accumulation that are most dependent on fossil fuels and most threatened by calls for emission cuts."). 11. See, e.g., Jeffrey Ball, Why Carbon Pricing Isn't Working, FOREIGN AFFS. 135 (2018) ("The result is that a policy prescription widely billed as a panacea is acting as a narcotic.").
While there are elements of truth in all of these criticisms, they also miss the deeper political rationalities that are embedded within the instrument choice frame itself. Indeed, as this Article argues, a principal but previously unexamined reason emissions trading and other forms of carbon pricing have not lived up to expectations is because they rest upon an overly abstract theory of instrument choice that has led to a deeply unrealistic view of public engagement, policy development, and government problem solving. In advancing this argument, the Article explains how a particular conception of policy instruments underwrote efforts within economics and law to reconceive the task of environmental protection as a choice among different tools. 12 This then paved the way for the comparative evaluation of such instruments, with market-based instruments almost always coming out on top when compared to older, more prescriptive forms of regulation. 13 The resulting theoretical debate over instrument choice that has preoccupied environmental law since the mid-1980s has stunted our collective ability to imagine, much less to implement, a realistic way forward on climate change.
There are lessons here not only for climate policy, but also for environmental law and broader studies of regulation. Within environmental law, in particular, a critical analysis of the instrument choice debate is long overdue. As Jonathan Wiener observed more than twenty years ago, "[c]ontests to crown the best regulatory instrument have been the ceaseless sport of environmental law." 14 For all of its insights, however, that literature has never looked in any sustained way at how we came to view policies as instruments in the first place and what effects this framing has had on our understanding of various problems and the possibilities for response. As for broader studies of regulation and governance, there is much to learn from a more critical genealogy of the policy instrument idea and its impact . . that incentive-based instruments such as taxes and tradeable allowances should generally be chosen over technology requirements and fixed emissions standards because the incentive-based instruments are typically far more cost-effective and innovation-generating than their alternatives.").
on prevailing views of government problem solving and state capacity.
The Article proceeds as follows. Part I elaborates on the overall framework. It argues that the mainstream technocratic framing of instrument choice in environmental law and policy needs to be situated and understood historically as a distinctive political rationality-that is, as a particular approach to governing. Doing that allows us to move outside of the comparative assessment of different instruments (the traditional frame of the instrument choice debate) to investigate and explain how instruments acquire normative momentum in the first place-where they come from, how they get stabilized as legitimate objects of inquiry and investment, how they acquire the capacity to travel, and how they shape the ways in which we see problems and imagine different ways of responding. Such an undertaking is necessarily more historical, contextual, and reflexive than mainstream understandings of environmental regulation. 15 It looks at policy instruments not as abstract, neutral tools available for governments to use depending on the problem at hand but as historically situated technologies that are actively produced and reproduced by specific actors and institutions and that carry with them a specific politics of knowledge and social control. By "following the policy"-both intellectually and institutionally-we can begin to unpack the ideologies, networks, and infrastructures 15. My use of the term "reflexive" here focuses on the need for critical engagement with how environmental law scholarship has itself shaped the conceptual and practical terrain on which particular approaches to environmental problems are legitimated and how the instrument choice debate as a whole has influenced the way we understand government problem solving. As used here, the term should not be confused with what Eric Orts calls "reflexive environmental law"-a term that he introduced in the mid-1990s partly in response to the instrument choice debate and which draws upon Gunther Teubner's notion of reflexive law. In Orts's view, reflexive environmental law is an alternative to traditional forms of prescriptive regulation as well as market-based approaches-one that relies upon the adoption of practices of evaluation and decision making within individual firms that will facilitate their efforts to mitigate environmental harms in an ongoing dynamic manner without having to rely upon direct government regulation. See Eric Orts, Reflexive Environmental Law, 89 NW. U.L. REV. 1227, 1252-54 (1995) (describing key features of reflexive environmental law); Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17 LAW & SOC'Y REV. 239, 239 (1983) ("Reflexive law is characterized by a new kind of legal self-restraint. Instead of taking over regulatory responsibility for the outcome of social processes, reflexive law restricts itself to the installation, correction, and redefinition of democratic selfregulatory mechanisms.").
that allow specific policies to spread and the implications this has for efforts to harness the power of government to solve complex problems. 16 Part II applies this framework to the case of emissions trading. It starts with a critical intellectual history of emissions trading that locates it within deeper conceptual shifts in law, economics, and political science regarding policy instruments and their comparative evaluation. In tracing this story, Part II shows how a particular, and largely inaccurate, history of emissions trading became accepted wisdom and, as such, how it contributed to the larger mobilization of market-based instruments in environmental law starting in the 1980s. Part II also provides an assessment of emissions trading in practice, showing how the actual spread of emissions trading has often been highly contingent, driven more by pragmatic experiments or the political inability to adopt other approaches than by its supposed theoretical virtues or actual success. In fact, as Part II demonstrates, the continued popularity of emissions trading and other forms of carbon pricing as leading tools to reduce greenhouse gases around the world has been less a product of their inherent merits than the result of a robust transnational network of professionals, consultants, and policy entrepreneurs who have provided a critical and often self-serving infrastructure to support their spread. 17 In virtually all 16 ("Our approach is to follow the instruments along their innovation journeys, a course that often starts from vague design notions and tentative practices and sometimes ends with dominant models, which are taken up in global policy toolboxes . . . and shape policymaking practices across jurisdictions and domains.").
17. See, e.g., JAMIE PECK & NIK THEODORE, FAST POLICY: EXPERIMENTAL STATECRAFT AT THE THRESHOLDS OF NEOLIBERALISM xv (2015) ("The acceleration in cross-border policy traffic is also reflected, if not enabled, by the veritable industry . . . that has sprung up around 'best practice' codification, practitioner conferences, learning exchanges, knowledge transfer, and communities of practice, a world that is populated by a mobile class of policy gurus, entrepreneurs, consultants, bloggers, evaluator-advocates, and model peddlers."). Voß & Simmons use the term "instrument constituencies" to capture aspects of this infrastructure supporting the spread of particular policy instruments. See Voß & Simmons, supra note 16, at 747 (describing instrument constituencies as involving "the work of specialized academics, research institutes and think tanks, instances where emissions trading has been adopted in practice, moreover, substantial challenges have emerged in building and maintaining these markets, highlighting the critical but all-toooften neglected role of implementation in delivering on the promises of particular interventions. 18 Part III steps back and offers some thoughts on what a more realistic and critical theory of instrument choice might look like, with particular attention to climate policy. It argues that policy instruments are not simply tools, but carry with them their own politics of knowledge and social control that shape and format the ways in which problems are understood and the possibilities for response. Borrowing from John Dewey, Part III seeks to recover and revise the idea of public problems as a basis for government action. 19 Rather than seeing problems through the narrow frame of instrument choice, this notion of public problems sees the spillovers, harms, and long-term consequences of a complex industrial society as problems that emerge from and call forth new publics. 20 By framing problems such as climate change not as a market failure best addressed by getting the prices right but as a problem of collective concern-that is, a problem for which we have shared but differentiated responsibilities-we can begin to see how new dedicated departments at international organizations, committed advocacy groups, and task forces in parties and public administration").
18. Cf. MATT ANDREWS ET AL., BUILDING STATE CAPABILITY: EVIDENCE, ANALYSIS, ACTION 2 (2017) ("[A]rticulating a reasonable policy is one thing; actually implementing it successfully is another. . . . All manner of key questions pertaining to the replication and 'scaling up' of policies and programs deemed to be 'successful' turn on whether adequate implementation capability is (actually or potentially) present.").
19. See JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS 39 (1927) ("[T]he perception of consequences which are projected in important ways beyond the persons and associations directly concerned in them is the source of a public; and that its organization into a state is effected by establishing special agencies to care for and regulate these consequences.").
20. Id. at 126 ("Indirect, extensive, enduring and serious consequences of conjoint and interacting behavior call a public into existence having a common interest in controlling these consequences. But the machine age has so enormously expanded, multiplied, intensified, and complicated the scope of the indirect consequences, have formed such immense and consolidated unions in action, on an impersonal rather than a community basis, that the resultant public cannot identify and distinguish itself. And this discovery is obviously an antecedent condition of any effective organization on its part. Such is our thesis regarding the eclipse which the public idea and interest have undergone."). See also ALAN RYAN, JOHN DEWEY AND THE HIGH TIDE OF AMERICAN LIBERALISM 28 (1995) ("Dewey's main intellectual concept was that of a 'problem.' Individuals and societies alike are stirred into life by problems.").
publics arise to take ownership of and demand responses to these problems.
The gathering strength of the climate movement and its connections to broader concerns with structural inequality and systemic racism is an important example of this, demonstrating how new publics can coalesce into a potent political force. The Green New Deal, President Biden's Executive Order on the climate crisis, with its embrace of a whole-of-government approach and strong commitment to environmental justice, the proposed $2 trillion infrastructure package, and the President's recent commitment to reduce U.S. greenhouse gas emissions by 50% below 2005 levels by 2030 21 all recognize this, marking a possible inflection point in U.S. climate policy that embraces a broad public framing of the problem and a corresponding view of government intervention and problem solving that moves beyond the narrow, policy instrument theory of state capacity that has limited our ways of thinking and acting for far too long.

II. PUBLIC PROBLEMS AND THE INSTRUMENT CHOICE DEBATE
Over the last year, three massively complex and interrelated crises-the COVID-19 pandemic, the deep-seated problem of systemic racism and structural inequality, and the climate emergency-have converged and are crying out for powerful and sustained government responses. And yet, at least in the United States, we continue to struggle to find the tools, the shared experience, and the vocabulary to engage and respond in a manner commensurate with the scale of these problems. To be sure, the Biden administration has signaled a strong intention to mobilize the power of the federal government to respond to these problems and the new administration clearly recognizes the interrelated nature of these crises. But there are also strong counter currents confronting the effort to translate these early commitments into sustained government action-manifest in a deep, ongoing distrust of government, unprecedented levels of polarization, widespread misinformation, and the corrosive effects of unconstrained political spending by corporate interests.
This Article argues that part of the challenge, particularly with respect to climate change, stems from a conception of government problem solving that is hollowed out and disconnected from the public and the kind of broad-based approaches to solving problems of collective concern that we so obviously need. In particular, it argues that the instrument choice debate, which has provided the dominant frame for much of environmental law in the United States and elsewhere for more than thirty years, has impoverished, constrained, and stunted our collective ability to imagine much less to implement a realistic way forward on climate change and other big complex problems.
As illustrated in more detail in Part II, the instrument choice debate in environmental law came of age in the 1980s and reflected an effort to reduce the task of solving environmental problems to a choice among different tools. Often framed as a battle between prescriptive "command-and-control" regulations, such as technology standards and mandates, and market-based approaches, such as taxes, fees, and tradable permits, the debate established a normative framework for evaluating different instruments against various criteria such as efficiency, fairness, and ease of administration. In doing so, it drew on deeper conceptual shifts in law, economics, and political science that had been underway since the middle of the twentieth century.
During the 1970s, a handful of environmental law scholars took up the question of instrument choice, reflecting the early import of economic ideas into the field. 22 But environmental law was still taking shape at the time, and the scholarly literature during the 1970s, along with some of EPA's early regulatory actions and important appellate decisions, was marked by a diversity of approaches and concerns. 23 By the mid-1980s, however, the instrument choice debate had moved to center stage as prominent legal scholars mounted a full-throated attack on so-called first generation command-and-control approaches to pollution control and argued strongly in favor of emissions trading and other market-based approaches. 24 Much of this reflected the growing influence of law and economics on the field, all of which brought an increasing level of abstraction and formalism to environmental law scholarship. 25 While the field of environmental law has expanded and diversified in various ways since the 1980s, even a cursory review of the literature since that time reveals sustained and ongoing attention to the instrument choice debate. 26 23. See DOUGLAS A. KYSAR, REGULATING FROM NOWHERE: ENVIRONMENTAL LAW AND THE SEARCH FOR OBJECTIVITY 3-5 (2010) (discussing earlier understandings of environmental law that were "messy, pluralistic, and pragmatic" and that gave way, starting in the 1980s, to a more instrumental, economically oriented approach that has "continued unabated" to the present); William Boyd, Genealogies of Risk: Searching for Safety, 1930s-1970s, 39 ECOLOGY L.Q. 895, 902 (2012) (arguing that the mid-1970s marked a moment of possibility for environmental law when the field could have gone in a more precautionary direction rather than embracing more formal, quantitative approaches to risk Together with quantitative risk assessment and cost-benefit analysis, the comparative evaluation of policy instruments sought to discipline and formalize environmental decision making. In retrospect, these various approaches operated together as a package of neoliberal reforms aimed at replacing earlier commitments to rights, precaution, and expert judgment with a more abstract and reductive approach that would force the work of environmental protection to run along more welldefined grooves. 27 In the process, questions of politics and public engagement were cabined and pushed to the side.
Indeed, despite much lip service regarding the need to attend to institutional and political context, the instrument choice debate has tended to operate at a very high level of abstraction. 28 Policy instruments, in this view, are often treated as discreet tools or widgets-an approach that may be necessary for making systematic comparisons, but one that also has significant costs when it comes to understanding how policies get translated into actual programs. By disembedding the processes of policy design, implementation, and diffusion from their institutional contexts, the widget view of policy instruments has left us with a diminished understanding of the conditions of possibility for responding to complex problems.
More important, and this is a key focus of this Article, it is well past time to reflect critically on how the instrument choice debate itself has constrained the manner in which we have come to understand and approach the climate change challenge. To that end, this Article argues that one of the most consequential effects of the longstanding debate over instrument choice has been its impact on our understanding of how the public can take ownership of a problem such as climate change and build a coherent, collective strategy adequate to the task at hand. 29 The enthusiasm for market-based approaches and the policy instrument theory of state capacity that this entails has worked to narrow our range of vision in ways that we may not fully appreciate-stifling our ability to see climate change as a collective, public problem by asking us instead to view it as a market failure that can be fixed by proper adjustment of the price system which will in turn channel individual economic behavior into more climate friendly pursuits. 30 The logic of such a position is decidedly hostile to anything that seeks to articulate and act upon what earlier generations referred to as the public interest or the common good, while making it difficult to harness the power of the state to direct investment and prepare for a future that avoids the worst impacts of climate change. Simply put, it is past time to put climate policy into a more fulsome 29. Cf. DEWEY, supra note 19, at 67 ("A public articulated and operating through representative officers is the state; there is no state without a government, but also there is none without the public."); BLAKE EMERSON, THE PUBLIC'S LAW: ORIGINS AND ARCHITECTURE OF PROGRESSIVE DEMOCRACY 89-93 (2019) (discussing Dewey's concept of the public and its problems and its implications for democratic decision-making and state capacity).
30. Cf. Douglas A. Kysar, Law, Environment, and Vision, 97 NW. U.L. REV. 675, 676 (2003) (arguing that "the failure of existing environmental trading programs to inspire serious democratic deliberation about environmental goals is caused in no small part by a fundamental conceptual flaw in our background assumptions about the natural world and its relation to our economic activity."). While the argument advanced here is sympathetic to Kysar's argument, the focus is quite different. Where Kysar attends to what he calls the "pre-analytic" vision that structures our background assumptions and conceptual choices, my focus is on the ways in which the progressive abstraction of the policy instrument idea has narrowed our range of vision with respect to the possibilities of harnessing government to solve complex problems. conversation with changing conceptions of the state as a step toward reimagining what meaningful climate action looks like.
Although polling suggests that a substantial majority of the public now agrees on the need for climate action, 31 it is worth reminding ourselves of just how serious the problem has become. Hardly a day goes by when we are not bombarded by reports of fire, 32 drought, 33 melting ice sheets, 34 flooding, 35 extreme heat, 36 species loss, 37 and human suffering 38 caused by a warming climate. In the summer of 2019, the United Nations reported that the world was experiencing one new climate-related disaster a week. 39 Climate change is no longer a problem of the future. It is a problem of the here and now. 40 And it is a problem that appears to be coming at us faster than scientists and climate models indicated even just a few short years ago, with some scientists suggesting that the Earth system is perilously close to a series of inter-related tipping points that could pose "an existential threat to civilization." 41 Over the last several years, as evidence of the climate emergency has grown, urgent calls for action by an increasingly diverse range of constituencies, led in many ways by the youth movement, have become much harder for policymakers to ignore. 42 The scale of human suffering that we are beginning to witness (and that will only get worse) is staggering. At the extremes, hundreds of millions of people face worsening subsistence crises and massive displacement that manifest in chronic hunger, starvation, forced migration, violence, and bare life. 43 In 2019, for the sixth year in a row, the number of people in the world suffering from chronic hunger increased in absolute terms, rising to 690 million (about one out of every eleven human beings on the planet). 44 The main cause of the increase, according to the U.N. Food & Agriculture Organization, has been conflict exacerbated by climate change. 45 Much of the increase is concentrated in sub-Saharan Africa, though hunger is also on the rise in Latin America. 46 For many millions of others, widespread loss of economic opportunity translates into 41. See Ripple et al., supra note 38, at 9-10 ("The climate crisis has arrived and is accelerating faster than most scientists expected. It is more severe than anticipated, threatening natural ecosystems and the fate of humanity."); Timothy M. Lenton et al., Climate Tipping Points: Too Risky to Bet Against, 575 NATURE 592, 592 (2019) ("[E]vidence is mounting that [tipping points in the Earth system, such as loss of the Amazon rainforest or the collapse of the West Antarctic ice sheet,] could be more likely than was thought, have high impacts and are interconnected across different biophysical systems, potentially committing the world to long-term irreversible changes"); id. at 595 ("If damaging tipping cascades can occur and a global tipping point cannot be ruled out, then this is an existential threat to civilization."). diminished livelihoods, material deprivation, and displacement. Worldwide, the UN and others have estimated that the number of "climate migrants" could reach more than one billion by 2050. 47 Even if the real number is a small fraction of that, 48 it represents an astonishing number of people on the move that will create enormous strains not only on the resources but also on the capacity for mercy in the places where they will seek refuge. And yet, the overall record of climate action remains dismal. Global carbon dioxide emissions from fossil fuels rose again in 2019, hitting an all-time high of 36.8 billion tons. 49 Although the impacts of the COVID-19 pandemic on economic activity led to a significant reduction in global fossil fuel emissions for 2020 (around seven percent), there is no reason to expect that a return to more normal economic activity will not bring emissions back up to historic levels. 50 Meanwhile, emissions from deforestation and land use are up significantly, driven largely by major increases in tropical deforestation in the Brazilian Amazon (up more than 25% over the last year and roughly double the rate of five years ago). 51  countries are prepared to increase their climate ambition, even if all of the countries of the world are able to fully implement their current pledges under the Paris Agreement (and the current evidence suggests that they are not on track to do so) the world is still expected to experience warming of at least 3°Cdouble the 1.5°C limit that the Intergovernmental Panel on Climate Change (IPCC) and virtually all climate scientists see as necessary to avoid the worst impacts of climate change. 52 It is a damning indictment on any register.
Climate policy, needless to say, now stands at a critical juncture, with very little time left to start reducing global emissions on a schedule that is aggressive enough to have a chance of achieving the Paris Agreement target of limiting warming to "well below 2°C" 53 -a target that requires reaching net-zero emissions globally by mid-century, less than thirty years from now. 54 While recently announced climate commitments by major corporations and financial institutions are a welcome development, even if embarrassingly late, it is clear that voluntary private sector initiatives cannot substitute for action by governments at all levels. 55 In the negotiating halls of the United Nations Framework Convention on Climate Change (UNFCCC) and in national and subnational governments around the world, hopes are once again stirring for carbon pricing in one form or another as policymakers struggle to the find the means to respond. 56 One in Brazil in 2020 increased by 25% from 2019 and was more than double the amount of 2015 ], available at https://perma.cc/9XVS-2HPL (calling upon parties to limit "the increase in the global average temperature to well below 2°C above preindustrial levels and pursu[e] efforts to limit the temperature increase to 1.5°C above pre-industrial levels.").
54. The IPCC projects that in order to limit warming to 1.5°C, the world will need to reach net-zero emissions of CO2 by 2050 and net-zero emissions of all greenhouse gases by the 2060s. Achieving a target of 2°C would require net-zero emissions of CO2 by 2070. But in the decade following the financial crisis, enthusiasm declined significantly. Today, carbon markets are a pale shadow of what proponents hoped they would become during the early 2000s. 57 But carbon pricing seems poised for a possible second act. 58 During the negotiations leading up to the Paris Agreement, major international organizations, such as the United Nations, the International Monetary Fund, and the World Bank enthusiastically endorsed carbon pricing as the policy instrument of choice for reducing greenhouse gases in order to achieve the Paris target of limiting global warming to "well below 2°C." 59 National governments have likewise voiced substantial and widespread support for using emissions trading, and to a lesser extent carbon taxes, as the principal means of meeting their Nationally Determined Contributions (NDCs) under the Paris Agreement. 60 By 2019, according to the World Bank, 22% of global emissions were under some form of carbon ("As countries prepare their updated national climate action plans, known as NDCs, which are essential to meet the temperature targets agreed under the Paris Climate Change Agreement, momentum is growing to put a price on carbon pollution as a means of bringing down emissions and driving investment into cleaner options.").
57. In June 2008, Commissioner Bart Chilton of the Commodities Futures Trading Commission (CFTC) observed in a speech that carbon markets had experienced an average annual growth rate of more than 300% per year since 2002, and that these emissions markets "could overtake all other commodity markets at some point down the road." Based on conservative assumptions, he predicted a $2 trillion futures market for carbon emissions. Bart Chilton, Commissioner of the CFTC, Speech at the Finance IQ Second Carbon Trading Conference (Jun. 25, 2008), available at https://perma.cc/5CP8-8A2F. Needless to say, these rosy expectations were off by several orders of magnitude. Last year, the total value of the global carbon markets was around €229 billion ( Existing emissions trading programs also seem to be getting back on track. After several years of reform efforts, the European Union Emissions Trading System (EU ETS) finally appears to have resolved its severe over-allocation problem, with prices now significantly higher than they were in 2018. 64 In the U.S., the member states of the Regional Greenhouse Gas Initiative (RGGI) succeeded in tightening their cap in 2014, and California's cap-and-trade program has continued to function without major problems. 65 Taken together, these developments might be read as a sign of progress that governments at various levels are finally getting serious about climate action. From the perspective of the deepening climate emergency, however, they reveal a stunning lack of courage and imagination. The plain truth of the matter is that emissions trading and carbon pricing are not up to the task, and the fixation on these instruments has distracted climate policy for far too long. Indeed, while the theoretical case for tradeable permits and other market-based approaches has 61. Id. at 7 (reporting that carbon pricing initiatives implemented or scheduled for implementation cover about 22% of global greenhouse gas emissions). 62. Id. at 19-20. 63. Specifically, negotiations over the rules for Article 6 of the Paris Agreement, which provide for a mechanism that allows countries to trade emissions reductions and could provide the basis for the integration of global carbon markets. See Paris Agreement, supra note 53, art. 6.
64. See EUR. COMM'N, REPORT ON THE FUNCTIONING OF THE EUROPEAN CARBON MARKET 5 (2020), available at https://perma.cc/R6JD-NUZ (reporting that legislative changes to address the surplus of allowances have led to a significant reduction in auction volumes and higher overall prices for allowances, notwithstanding a brief decline in prices during the spring of 2020 as a result of  been clear for more than forty years, real-world application has stumbled along for much of the last three decades, unable to deliver on their promises. Put bluntly, any honest reading of the historical record would reveal a policy instrument that has fallen far short of expectations. The obvious question is why.
While there has been a significant amount of commentary over the last several years pointing out the problems with carbon pricing, much of which echoes an older set of critiques, most of that literature still operates within the basic instrument choice frame. 66 In essence, these criticisms reduce to some version of the following: we made a mistake listening to economists and focused on the wrong tool for too long. The problem is now much worse and getting worse all the time, while carbon pricing has proved to be politically challenging and much harder to implement at the scale and pace that is necessary. 67 Now we need to go back to the tool shed to find other, more appropriate tools.
This Article has a different focus. Rather than engage in yet another round in the instrument choice debate, it investigates , available at https://perma.cc/F7HM-X2FB ("As a policy, carbon pricing has the politics backward. It starts by changing the incentives to pollute. Theoretically these incentives will undermine carbon polluters' economic and political power. But this puts the cart before the horse: we need to disrupt the political power of carbon polluters before we can meaningfully reshape economic incentives.").
how emissions trading, and carbon pricing more generally, emerged as policy orthodoxy in the fight against climate change over the last thirty years and what this reveals about our conception of government problem solving. Answering that question requires a more empirical investigation of how we came to think about the climate problem as amenable to these tools, why these particular instruments were able to gain normative momentum and travel around the world, and how their popularity has impacted the ability of governments to respond to climate change.
The key methodological lesson here is that we need to "follow the policy"-both geographically and historically. But in doing so, we need to be careful not to replicate the problem of reifying these policy instruments as stable objects that remain relatively intact as they travel. 68 We need histories of instruments that place them in context, investigating how they gain traction and develop over time and across different jurisdictions. That means looking at the role of experts, networks, and ideologies in the constitution of policy orthodoxies and always questioning why a particular approach is being advanced as the right fit for a particular problem.
It also means moving away from the policy instrument theory of state capacity to recognize instead that major government interventions are always works in progress-complicated political undertakings crafted under a particular set of circumstances and legal constraints, informed by particular understandings of problems, and based on a particular coalition of supporters. Successful policies, when measured in terms of their ability to deliver over time, cannot be reduced to a set of simple design choices. Policies are more than the sum of their parts.
They have complicated, vernacular histories. Understanding those histories will help us make better policytoday and in the future. The normative conclusion that emerges from this is that the narrow, technocratic focus on instrument choice that has shaped so much of the mainstream discussion in environmental law and related fields since the 1980s has made it increasingly difficult to frame problems as sources of collective concern that can give rise to new publics. By focusing on tools and instruments, we have lost sight of the state as the "public articulated," to use John Dewey's phrase. 70 Put simply, the abstract, reductionist view of policy instruments that has preoccupied lawyers and policy professionals for almost half a century has disempowered and marginalized the public in ways that make it harder to solve big complicated problems. By design, they have pushed a more fulsome view of the public and its problems to the side.

III. FOLLOW THE POLICY: THE CASE OF EMISSIONS TRADING
This Part takes seriously the injunction from Part I to "follow the policy," tracing the intellectual and institutional history of emissions trading over the last half century. The goal is to explain how the idea of emissions trading emerged and gained traction based on an increasingly abstract conception of policy instruments and the implications of this for climate action in the United States and around the world. The key takeaway is that the popularity of emissions trading within the mainstream climate policy community over the last several decades has been less the result of its inherent merits and more a product of a particular ideological project to promote emissions trading by a relatively small, but influential, group of economists and lawyers, as well as substantial investments by a broader network of government leaders, policy professionals, consultants, environmental groups, and private firms. Viewed in this way, emissions trading represents one of the best examples of "fast policy" operating in the world today. 71 But the ways in which it achieved that status are not well understood.

A. Emissions Trading in Theory
Most students of environmental regulation have a general sense of the history of emissions trading and how it fits within a broader narrative of the move to markets in environmental law. 72 One might call this the official or standard history, much of which has been actively produced by economists and other advocates over the last several decades. 73 This official history is important to understand because it has contributed substantially to the normative momentum behind emissions trading and, by extension, carbon pricing. Official histories operate in this respect as ideologies and, in doing so, perform important work in justifying continued investment in and commitment to particular approaches.
What follows is a critical analysis of the official history of emissions trading, showing how economists and legal scholars converged on the idea during the 1970s and 1980s as a superior alternative to what they came to characterize pejoratively as the experiments exist in relation to near and far relatives, to traveling models and technocratic designs, and to a host of financial, technical, social, and symbolic networks that invariably loop through centers of power and persuasion."). Peck and Theodore use the cases of participatory budgeting and conditional cash transfers to illustrate the phenomenon of fast policy. In their view, fast policy is a distinctive form of neoliberal statecraft and, as such, fits within a broader trend of globalization of new forms of governance. See, e.g., PIERRE DARDOT & CHRISTIAN LAVAL, THE NEW WAY OF THE WORLD: ON NEOLIBERAL SOCIETY 247-48 (Gregory Elliott trans., 2013) ("Reform of public administration is part of the globalization of forms of the art of governing. The same methods are advocated everywhere, whatever the local situation; a standard lexicon is employed (competition, process engineering, benchmarking, best practice, performance indicators.). These methods and categories are valid for all problems and all spheres of action. . . . This 'generic' reform of the state in conformity with private sector principles is presented as ideologically neutral. . . . In reality, it involves an extremely significant rationality that is all the more powerful for encountering few critiques and opponents."). its inauspicious beginning as an idea that was little more than an academic curiosity, emissions trading has matured into its current role as the centerpiece of the U.S. program to control acid rain and international programs to control greenhouse gases.").
"command-and-control" style of regulation that dominated the environmental laws enacted during the 1970s. While the main elements of this story have been recounted before, previous accounts have stopped short of probing the deeper conceptual shifts that underwrote these efforts and the broader implications for how we think about policy development and diffusion. As this Part shows, these debates drew upon and reinforced a novel and increasingly abstract conception of policy instruments that has constrained our thinking about pressing problems such as climate change and the possibilities for harnessing the full power of government to respond.

Origins Stories
Official histories often draw their strength from a powerful origins story, and few policy instruments have claimed as noble a pedigree as emission trading, starting with Ronald Coase's famous 1960 article, The Problem of Social Cost. 74 Although readers of Coase's article would be hard pressed to find even a subtle allusion to cap-and-trade or emissions trading in the text, the official history suggests that Coase's key insights regarding the reciprocal nature of harm and the trading of entitlements in settings of low transactions costs were the wellspring from which emissions trading grew. 75 According to the standard history, Coase's insights were system of tradable emissions rights as a possible solution to air pollution problems, and by a Canadian economist, John Dales, whose 1968 book, Pollution, Property & Prices, offered the first formal proposal for a simple cap-and-trade program. 76 In Dales's view, the government could choose whatever level of pollution it wanted, allocate the appropriate quantity of pollution rights, and then allow trading to set the price. 77 Once in operation, "the market [would] automatically ensure[] that the required reduction in waste discharge will be achieved at the smallest possible total cost to society." 78 All of this would be accomplished, moreover, with "very little administrative expense by comparison with alternative schemes." 79 The one thing missing in all of this, aside from any serious appreciation of politics and political economy, is Coase. In his book-length study, Dales only mentions Coase in his suggestions for further reading, characterizing The Problem of Social Cost as "eloquent on the relationship between law and economics." 80 Dales does cite Coase in a shorter article (also from 1968) summarizing his case for pollution rights, but only for the proposition that property rights do not reflect ownership of physical assets but rights to use them in certain ways. 81   part, Crocker does not cite Coase at all, even though his framing of the problem is closer to the Coasean idea of reciprocal harm than Dales's analysis. 82 In hindsight, there appears to be very little tangible connection between early thinking on tradable permits by Crocker and Dales and Coase's 1960 article. 83 As Steven Medema observes, "It is quite clear at least in retrospect, that the transferable permits system has little in common with the bilateral bargaining emphasized in 'The Problem of Social Cost'." 84 According to Medema, the effort to connect emissions trading back to Coase came later, mainly from economists who were deeply involved in promoting emissions trading. 85 But by linking their ideas back to Coase, advocates of emissions trading bolstered their intellectual case, suggesting that the move to market-based approaches in environmental law Coase solution is unlikely if the damaged parties constitute a large, diverse group for whom organization and bargaining is costly. A quick survey of our major environmental problems-air pollution in metropolitan areas, the emissions of many industries and municipalities into our waterways-indicates that these typically involve large numbers. This would suggest that the Coase solution is of limited relevance to the major issues of environmental policy."). 84

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was of a piece with the broader Coasean revolution in law. 86 In doing so, they effectively shifted attention to the role of property rights (as opposed to taxes or regulation) as the most promising way of dealing with pollution. 87 One of the most important consequences of this move was the emphasis on the severe knowledge problems confronting governments seeking to establish an optimal level of taxes or to enact prescriptive regulations. 88 By harnessing the forces of competition, markets could set prices at the "correct" level with governments playing a modest, enabling role. Dales and Crocker embraced this view, emphasizing the superior information processing features of markets relative to governments. Because governments invariably "get it wrong" in their efforts to establish taxes equal to the social cost of an externality, it was far better to establish property rights and allow the market to set the price. 89 As Dales argued, "Once in operation, the Pollution Rights market will, by establishing a price for Rights, relieve the [government] of any necessity to set the proper price by trial-and-error methods." 90 While these arguments do bear a family resemblance to Coase's critique of Pigovian taxes, there is a stronger echo here of Friedrich Hayek's conception of the price system as a superior information processor and the corresponding challenges facing governments seeking to intervene in the economy. 91 As Dales 86. Medema, Curious Treatment, supra note 83, at 51 ("The Coase theorem was very much in the air during the 1970s, discussed in department hallways and seminar rooms, as well as in the scholarly literature."). On the broader Coasean "revolution" in law, see See, e.g., Dales, Land, Water, and Ownership, supra note 76, at 791 ("The administrative problem of approximating optimum shadow prices by actual user charges promises to be a nightmare."); id. at 792 (noting that "the great virtue of a pricing system is that it solves, avoids, mediates, or somehow manages to dispel, all sorts of complexities."). See also DALES, POLLUTION, PROPERTY, AND PRICES supra note 76, at put it, "The virtues of the market mechanism are that no person, or agency, has to set the price-it is set by the competition among buyers and sellers of rights." 92 Similarly, in what reads like an almost direct quote from Hayek's famous 1945 essay, The Use of Knowledge in Society, Crocker observes, It is one of the advantages of a price system that in order for it to work efficiently, the only person who needs to know about how any given user will use the right he has purchased is the user himself. . . . The decisions that he and all other users of the air resource make with respect to the purchase of emission rights thus reveal to the control authority the real economic values of the air's two value dimensions. 93 As Crocker concluded, "any control authority which does not take advantage of the market to provide information for the structuring of forthcoming authority decisions and the correction of past authority errors must have a serious misconception of its responsibilities to society." 94 Aside from a strong preference for harnessing the price system, it is important to recognize the underlying conceptual 106-07 ("to draw up a list of regulations or subsidies that would reduce pollution by, say, 10 per cent and do so in such a way as to minimize the cost of the operation, is humanly impossible.") (emphasis in original).
92. Dales, Land, Water, and Ownership, supra note 76, at 801. See id., at 802 ("The automaticity of the market mechanism reduces administrative costs by relieving administrators of the necessity of setting the charge for rights and changing it periodically to reflect economic growth or decline.").
Hayek, The Use of Knowledge in Society, 35 AM. ECON. REV. 519, 526 (1945) ("We must look at the price system as such a mechanism for communicating information if we want to understand its real function. . . . The most significant fact about this system is the economy of knowledge with which it operates, or how little the individual participants need to know in order to be able to take the right action.").
94. Crocker, supra note 76, at 84. See id. at 81 ("All in all, there is little doubt that the signaling potential of a price system has not yet been given its due in most atmospheric pollution problems."); Thomas D. Crocker, On Air Pollution Control Instruments, 5 LOY. L.A. L. REV. 280, 294 (1972) (characterizing emissions trading schemes as "informationally decentralized and . . . capable of dealing with large numbers of emitters and receptors at small cost since the agency would not have to specify the behavior patterns of individual emitters and receptors"). As we will see, this view of the superior information processing capacities of markets was also embraced by leading environmental lawyers during the 1980s, and used as the basis for their sustained critique of command-and-control regulation, which they sometimes characterized, in yet another echo of Hayek, as "Soviet-style central planning." See infra Part II.A.2. move here. At the root of all of these early works in environmental economics was an increasingly abstract conception of discrete policy tools that could be compared and evaluated against each other. 95 As Dales put it, "[t]he market proposed in this paper is . . . nothing more than an administrative tool. But administrative tools that have some prima facie claim to efficiency should not be ignored in an increasingly administered society." 96 By isolating particular tools or instruments from their larger institutional contexts, such an approach prepared the ground for the comparative evaluation of different policy instruments that would soon become a mainstay of the environmental economics literature. 97 During the early 1970s, economists such as Wallace Oates, David Baumol, and David Montgomery formalized and expanded upon these insights, giving rise to a large literature in economics on the theory of emissions trading, the relative merits of taxes versus tradeable permits, and the general superiority of market-based approaches compared to direct regulation via mandates and standards. 98 In all of this work, there was a progressive abstraction of the policy instrument idea, which in turn made formal comparisons of different instruments possible. Not surprisingly, much of this work focused on "policy tools operating through the pricing system," 99  instrument concept changed the way we think about problems and the capacities of government to respond. Armed with this abstract conception of policy instruments, it was but a small step to the critique of existing regulation. What was implicit in the comparisons suggested by Crocker and Dales soon became a rallying cry for economists during the 1970s in their arguments that the drafters of major federal environmental laws such as the Clean Air Act and the Clean Water Act had essentially ignored economics in crafting their programs for pollution control. 101 One of the pioneers of this critique, Wallace Oates, has suggested that even though the economic perspective on pollution control was well developed in the academic literature by the 1960s and was discussed in the run-up to some of the early federal environmental legislation, environmentalists' hostility to price-based approaches made it impossible for such instruments to get traction. 102 According to Oates, this stemmed largely from widespread ignorance, as evidenced by a widely cited 1981 survey of the environmental policymaking community that "turned up virtually no one who could even explain the basic rationale for incentive-based policy 102. Id. at 302 ("Environmentalists were decidedly hostile. The market system was the reason we had pollution in the first place, they said. The idea of putting a price on pollution was morally repugnant.").
103. Id. at 303 (citing STEVEN KELMAN, WHAT PRICE INCENTIVES?: ECONOMISTS AND THE ENVIRONMENT (1981)). Even a cursory reading of Kelman's book, however, reveals that his analysis was focused far more on the many legitimate reasons why people might oppose pollution charges and other market-based approaches to environmental problems. STEVEN KELMAN, WHAT PRICE INCENTIVES?: ECONOMISTS AND THE ENVIRONMENT 9 (1981) ("The book is primarily aimed at people familiar with, and perhaps sympathetic to, microeconomic prescriptions for public policy. I hope to present them with arguments for why considerations beyond those typically included in microeconomic theory are important in making a decision about whether to use economic incentives in environmental policy, considerations that make the case for such an approach considerably less clear cut than it otherwise would be."). Although his surveys of Congressional staff did show a lack of familiarity with the "efficiency arguments" in favor of pollution charges (including among Republican staffers who generally supported such approaches), Kelman found that respondents' view on both sides of the question tended to reflect more general convictions regarding the relative role of markets versus government. See id. at 95-99. Moreover, contrary to Oates's claims, Kelman's surveys This particular critique of American environmental regulation has now been repeated so many times that it has come to be accepted wisdom. As one retrospective assessment recently put it, "[s]tripped to its essentials, the U.S. approach to pollution control prior to the adoption of emissions trading . . . relied upon a command-and-control approach to controlling pollution." 104 The key phrase here, however, is not "command-and-control," but rather "stripped to its essentials." Indeed, whatever one thinks of the critique of command-and-control regulation, the underlying move to reduce policy instruments to their "essential features" was arguably more consequential. Gone was any recognition of the complexity and nuance of complicated programs, such as the National Ambient Air Quality Standards (NAAQS), with their multiple layers of authority, carefully crafted review processes, connections to other parts of the Act, and nested set of regulatory approaches. 105 Going forward, the main challenge confronting environmental regulation was reconceived as choosing among discreet instruments or tools depending on the problem at hand. As the difficulties and costs associated with existing regulation became apparent, moreover, "the political acceptability" of more "cost-effective" market-based tools grew. 106 But early advocates of emissions trading confronted a basic problem; namely, the lack of any real-world experience with these new market-based approaches. While the theoretical case might be clear, policymakers wanted actual evidence that these new instruments would deliver in practice. Here, the role played by experimental economics in evaluating different policy found that "[a]s a group, environmentalists were by far the most knowledgeable about charges-and also the most split." Id. at 107. Interestingly, Kelman also found in his survey of industry trade association staff that "[n]ext to Democratic Senate staffers, industry representatives were the most negative towards economic incentive proposals." Id. at 120. These industry respondents were also, "as a group, the least informed about charges proposals." Id. at 118. Thus, Oates seems to have misunderstood the basic motivation behind Kelman's book, several of the main results from Kelman's surveys, and the key takeaway that the seemingly technical debate over the relative merits of environmental policy instruments was (and is) actually a debate about values and different normative commitments regarding the role of government and markets in solving social problems.
104. Tietenberg, supra note 73, at 361. 105. For an overview of the NAAQS program, including its history and remarkable success over the years (despite ongoing challenges), see Boyd, supra note 69.
instruments proved decisive. 107 In a series of studies starting in the 1970s and continuing into the 1990s, economists used laboratory simulations to provide the "empirical" evidence demonstrating the relative merits of market-based approaches compared to command-and-control. 108 As Tom Tietenberg noted, this was a "pivotal point in the reform movement" given that these "empirical cost-effectiveness studies showed that it was possible to reach the predetermined standards at a much lower cost than was the case with the traditional command-andcontrol regime." 109 Although framed as "empirical," these studies were not ex post evaluations of actually existing markets, but ex ante simulations in controlled settings. 110  ., 1999) ("In terms of mechanism testing, the experimental investigations began in 1983 when Charles Plott examined a tradeable emissions permit scheme in a more general study of policy mechanisms to deal with externalities."); Cason, supra note 107, at 154 ("[E]xperimental models are . . . useful for providing insight into complex new design problems such as those faced by regulators implementing emissions trading systems. The idea is to create experimental designs to capture key aspects of the real-world market, and then vary features of the market to investigate how this affects outcomes.").
109. Tietenberg, supra note 73, at 361. See id. ("This rather consistent finding, produced for a number of different pollutants and geographic settings, offered the politically attractive prospect of either achieving the existing environmental objectives at a much lower cost or of obtaining a much higher level of environmental quality for the same expenditure. While theory showed that command-and-control regulation typically was not cost-effective, empirical work demonstrated that the degree of inefficiency was very large indeed.").
110. See, e.g., Bjornstad et al., supra note 108, at 165 ("Experimental economics, by offering the ability to generate data from hypothetical markets that would be created by the proposed rules, presents the opportunity to develop some evidence for validating the proposed market rules. While the approach cannot deliver 'proof of principle' it can clearly highlight problems and can focus attention on potential areas of contention.");

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Poverty of Theory 433 numbers of subjects (very often students) and relied on a set of strategic simplifications and assumptions that allowed them to test particular design features and investigate various outcomes. 111 The messiness of politics and real-world institutions were left to the side. Deeper philosophical questions regarding what kind of evidence they constituted were almost never confronted. 112 And, perhaps not surprisingly, marketbased approaches almost always came out on top in any side-byside comparisons with more prescriptive approaches. 113 In addition to bolstering the case for emissions trading, these studies had two important effects. First, they reinforced the emerging conception of environmental regulation as a choice among different policy instruments. In doing so, they worked to further separate those instruments from their institutional and political contexts to make them amenable to comparative evaluation.
Second, they marked an important step by economists and the economics profession toward a more interventionist engagement with environmental policy. 114 Markets were no longer simply objects of study, but rather tools that could be designed and deployed to achieve certain outcomes. 115 As the fields of mechanism design and 111. See, e.g., Cason, supra note 107, at 159 ("Most emissions trading experiments employ student subjects and a neutral, non-environmental context"). experimental economics gained in popularity and importance, this kind of "institutional engineering" was applied across multiple domains. 116 Looking back, the intellectual history of emissions trading is more complicated and ad hoc than the standard account suggests. But the simple story that advocates constructed starting in the 1970s has demonstrated remarkable staying power and influence, serving to legitimate the new marketbased approaches and diminish the prospects of alternatives. The most consequential move in all of this, as suggested, was the isolation and progressive abstraction of the policy instrument idea. By separating policy instruments from their political and institutional contexts, the economic approach left us with a diminished view of government and a limited set of resources to call upon in response to complex and far-reaching problems such as climate change.

Reforming Environmental Law
Lawyers got into the mix in the mid-1980s, embracing the economic critique of "command-and-control" regulation and developing their own institutional arguments in favor of capand-trade. Prominent legal scholars, such as Bruce Ackerman, Richard Stewart, and Cass Sunstein, argued that the new market-based approaches would be far superior to the technology-based standards that dominated the first generation of environmental law. 117 In their view, these new market-based approaches promised to reform environmental law-to awaken the field from its dogmatic slumbers, shake loose the last vestiges of "Soviet-style central planning," and usher in a new era of environmental pollution control that would be cheaper and more democratic. 118 116. See id. at 280 (discussing Plott's conception of policy analysis as a type of "institutional engineering" with a focus on creating "new" or "synthetic" institutionsand noting the importance of experimental evidence to support these new "synthetic institutions" which heretofore had no track record or practical experience). See also Vernon L. Smith, Economics in the Laboratory, 8 J. ECON. PERSPS. 113, 115 (1994).
117. See, e.g., Ackerman & Stewart, Reforming Environmental Law, supra note 24, at 1333 ("The present regulatory system wastes tens of billions of dollars every year, misdirects resources, stifles innovation and spawns massive and often counterproductive litigation").
118. See id. at 1334 ("The current system does not in fact 'work' and its malfunctions, like those of Soviet-style central planning, will become progressively more serious as the economy grows and

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Characterizing the then-existing approach to pollution control as "extraordinarily crude, costly, litigious, and counterproductive," Ackerman and Stewart provided a bill of particulars that added up to a devastating indictment. 119 Billions of dollars had already been wasted as a result of failure to recognize vast differences across firms (and installations) in the marginal cost of pollution abatement. 120 New products and processes were penalized rather than rewarded. 121 Incentives for the development of new environmentally superior strategies did not exist. 122 Centralized determination of complex scientific, engineering, and economic issues regarding feasibility controls on "hundreds of thousands of pollution sources" was all but impossible. 123 And the entire approach was "inconsistent with intelligent priority setting." 124 "This indictment," they concluded, "is not idle speculation, but the product of years of patient study by lawyers, economists, and political scientists." 125 In advancing their critique, Ackerman and Stewart suggested a divide between first-and second-generation approaches to environmental law-a framing that worked to further reinforce an implicit narrative of progress and improvement in our tools for reducing pollution. 126 While they admitted that "the embrace changes and our knowledge of environmental problems develops."). Stewart repeated this characterization in several subsequent articles. See, e.g., Richard B. Stewart, Controlling Environmental Risks through Economic Incentives, supra note 24 at 154 ("Our current environmental regulatory system . . . has grown to the point where it amounts to nothing less than a massive effort at Soviet-style central planning of the economy to achieve environmental goals."); Richard B. Stewart, Models for Environmental Regulation: Central Planning Versus Market-Based Approaches, 19 B.C. ENV'T. AFF. L. REV. 547, 547 (1992) ("The United States, despite its market-based economy, has relied heavily on central planning-style, 'command-and-control' tools to achieve its environmental protection goals."); Richard B. Stewart, A New Generation of Environmental Regulation?, 29 CAP. U.L. REV. 21, 30-31 (2001) ("Command environmental regulation is a form of central economic planning that shares the inherent inefficiencies of all such systems."). See also Sunstein, supra note 26, at 412 ("Ironically, a large source of regulatory failure in the United States is the use of Sovietstyle command and control regulation, which dictates, at the national level, technologies and control strategies for hundreds, thousand, or millions of companies and individuals in a nation that is exceptionally diverse in terms of geography, costs and benefits of regulatory controls, attitudes, and mores.").
119 126. This can be seen as part of the larger approach or style of "minimalism" in public administration that Charles Sabel and William Simon identify as one of two main alternatives to the command-and-control style of administration that characterized of a BAT [Best Available Technology] approach made some sense as a crude first-generation strategy," 127 they chastised their contemporaries for living in the past. "Our complaint is not with the statutory draftsmen of the early 1970s," they observed, "but with lawyers of the 1980s who fail to put these statutes in historical perspective." 128 In a reprise of earlier arguments by economists, Ackerman and Stewart also emphasized the superior role of markets in solving the knowledge and coordination problems posed by environmental pollution control. "Instead of giving the job of economic and technological assessment to bureaucrats," they argued, "the marketable rights mechanism would put the information-processing burden precisely where it belongs: upon business managers and engineers who are in the best position to figure out how to cut back on their plants' pollution costs." 129 In sum, a tradeable permits approach not only promises to save Americans many billions of dollars a year, to reward innovative improvements in existing clean-up techniques, and to eliminate the BAT system's penalty on new, productive investment. It also offers formidable administrative advantages. It relieves agencies of the enormous information-processing burdens that overwhelm them under the BAT system; it greatly reduces litigation and delay; it offers a rich source American public law from the New Deal to the 1980s. See Sabel & Simon, supra note 27, at 54. According to Sabel and Simon, the minimalism model "seeks to ground policy design in economic concepts and market practices, and to minimize frontline administrative discretion and popular participation in administration. Its key normative reference points are efficiency and consistency." Id. at 54-55. Cost-benefit analysis, behavioral nudges, and cap-and-trade are among the regulatory tools favored by minimalists. Id. at 55, 64.
127. Ackerman & Stewart, Reforming Environmental Law, supra note 24, at 1364. Best available technology is used as a proxy here for the prescriptive technology and performance standards used in pollution control statutes such as the Clean Air Act and the Clean Water Act.
128. Id. 129. Id. at 1343. See also Stewart, A New Generation of Environmental Regulation, supra note 118, at 31 ("[A] command system of air pollution regulation requires detailed specifications of behavior for hundreds of thousands of various industrial and commercial sources of air pollution, as well as controls on tens of millions of motor vehicles. Central planners are unable to gather and process the information needed to write directives that respond appropriately to the diverse and changing circumstances of so many actors in a vast nation with a dynamic economy.").
of budgetary revenue in a period of general budgetary stringency; and it forces agencies to give new importance to the critical business of enforcing the law in a way that America's polluters will take seriously. 130 To those who felt that it all sounded too good to be true, Ackerman and Stewart responded in a subsequent article that "there is such a thing as a free lunch. A reform relying on market incentives is just plain better, in terms of all relevant public values, than the status quo." 131 Chief among these public values, Ackerman and Stewart argued, was more democratic deliberation over the goals of pollution control. 132 Rather than focusing debate on "arcane technological questions," as the BAT system did, a marketable permit system would allow citizens and policymakers to focus on the ends of environmental regulation. 133 Cass Sunstein reinforced these arguments several years later with his own vigorous defense of market-based approaches. 134 Emissions trading systems, he argued, "offer the great advantage of putting the power of deciding pollution levels back into the hands of the citizenry, rather than focusing on the often unintelligible question of what control technology is 'best' or 'available'." 135 Simply put, the public would decide on ends-the socially optimal level of pollution control-while the precise choice of 134. See Cass R. Sunstein, Administrative Substance, 1991 DUKE L.J. 607, 633 (1991) (arguing for a "strong presumption in favor of flexible, market-oriented, incentive-based regulatory strategies" which would "make it more likely that regulation will increase efficiency, promote its own purposes, and-by focusing public attention on the right questions-further democratic goals as well"). means would be left to the market. As with Ackerman and Stewart, Sunstein had very little to say about the actual practice of designing these markets or the challenges of implementation. Given the intense rent seeking directed at cap-and-trade design (and market design in other domains), this lack of attention to the politics associated with the many details involved in designing and implementing these programs seems shortsighted. 136 While the environmental law community did not exactly race to defend command-and-control, several scholars did push back. Howard Latin argued that the real-world application of technology-based standards was more effective than critics suggested and that false comparisons between an idealized version of emissions trading and real-world application of command-and-control would never go in favor of the latter. 137 Tom McGarity and Sydney Shapiro likewise offered a careful response to the parade of horribles that critics of the BAT approach put forth, showing how the claim that BAT approaches were "wildly inefficient" was itself wildly overstated. 138 And ten years after Ackerman and Stewart's initial article, Lisa 138. See Shapiro & McGarity, supra note 135, at 747-49 (responding point-by-point to Sunstein's claims that BAT strategies are inferior to market-based approaches). See also Wagner, supra note 26, at 84-85 (observing that while technology-based standards are not "a particularly admired approach to pollution control" they have proved to be "one of the most reliable methods for controlling pollution"); Steinzor, supra note 26, at 202 ("The journey from traditional command and control to a more flexible system of industry self-regulation poses dangers for the environment and for the EPA as an institution. Cheaper, faster and smarter alternatives will elude us as long as the short-term political expediency of placating the most vociferous critics overshadows the tedious, expensive effort to reach a better-informed middle ground.").
Heinzerling used the experience of the Clean Air Act's sulfur dioxide (SO2) trading program to advance a highly critical assessment of their arguments regarding the democratic benefits of emissions trading. 139 Based on a detailed study of the legislative debate over the SO2 trading program (also known as the acid rain trading program), Heinzerling showed that Congress paid almost no attention to the actual pollution level set by the 1990 amendments, and instead focused largely on the allocation of allowances. In her view, the evidence was clear that the democratic benefits of pollution trading did not materialize. "Review of the history of the 1990 Amendments reveals that reasoned deliberation did not occur," she concluded. 140 In stark contrast to suggestions that market-based approaches would see less interest group maneuvering, Heinzerling also documented how specific design decisions were driven by special interests. 141 As she concluded, it was "naïve to suppose that a costly piece of legislation like the 1990 Amendments to the Clean Air Act would be unattended by political deals." 142 And yet, notwithstanding the criticisms advanced by Heinzerling and others, the interventions by Ackerman, Stewart, and Sunstein marked a major shift in environmental law scholarship. 143 Going forward, debates over instrument choice dominated the literature ("the ceaseless sport of environmental law" as Jonathan Wiener put it 144 ) and a rough consensus in favor of market-based approaches took hold across much of the legal academy. 145 To be sure, this new focus generated important insights and facilitated a more sophisticated understanding of the tradeoffs involved in environmental regulation. As with cost-benefit analysis, the instrument choice debate brought environmental law into a more vigorous and productive engagement with economics. But it also diminished and narrowed the possibilities that might have come with alternative commitments and framings. 146 Looking back, some of the criticisms of existing "firstgeneration" environmental law also seem excessive. The characterization of BAT as "Soviet-style central planning," in particular, looks more like a cheap shot intended for rhetorical effect than a substantive criticism. That it was leveled (and repeated) by some of the most prominent legal scholars in the field stands as a troubling reminder of the deeper ideological struggles that have shaped environmental law for decades.

Instrument Choice & Optimality
As scholars in environmental economics and law debated the relative merits of emissions trading versus technology-based approaches, they drew upon and reinforced new ways of thinking about law and policy that had been underway since the middle of the twentieth century. Across multiple disciplines, attention shifted during this time to the tools and techniques of government, often framed within a broader set of questions regarding institutional competence and decision making. 147 While some of this reflected a broad-based effort to grapple with the overall growth of government and regulation-an obvious marker of which was the emergence of a self-defined field of "policy science" in the 1950s 148 -much of it drew upon internal developments within the disciplines themselves.
146. See KYSAR, supra note 23, at 2-3 (discussing ways in which economic reasoning has displaced earlier moral and political commitments of environmental law).
147. There is of course a long tradition of thinking about the various tools that governments use. See, e.g., Christopher Hood, Intellectual Obsolescence and Intellectual Makeovers: Reflections on the Tools of Government After Two Decades, 20 GOVERNANCE 127, 128 (2007) ("In one sense, there is nothing new about attempts to analyze the instruments used by governments for public policy. After all, debating alternative possible ways of keeping public order, enforcing laws, or collecting revenue is a classic concern of political thought.").
148. The first formal effort to define the "policy sciences" as a field of study is often attributed to Harold Laswell of Yale Law School. As Laswell himself described the field, " In the fields of political science and public administration, attention to the techniques of government emerged as a central concern during the decades after World War II. 149 Although much of this was framed against the backdrop of general Cold War debates over the relative merits of planning versus markets, there was a strong interest in moving beyond the clash of grand paradigms to a more granular evaluation of the pros and cons of different types of policies and tools. 150 Efforts were made to identify and classify different kinds of policy interventions into functional categories. 151 And there was a recognition that different types of policies carried within them and even created their own politics. 152 Growing interest in policy implementation during the late 1960s and 1970s also worked to reinforce an emphasis on tools and techniques. 153 By the early 1980s, scholars working in public management and public administration argued for an explicit focus on policy tools and instruments to replace more traditional concerns with agencies and programs. 154 In law, as legal realism gave way to legal process during the middle decades of the twentieth century, leading scholars put the question of institutional competence front and center, asking which institution of government and, by extension, what type of government action was best suited to deal with a particular problem. 155 While legal process scholars did not focus on specific of the typical perspective in political science, for it begins with the assumption that policies determine politics.").
153. See, e.g., JEFFREY L. PRESSMAN & AARON WILDAVSKY, IMPLEMENTATION xxi (3rd ed., 1984 [1973]) ("Implementation in recent years has been much discussed but rarely studied. Presidents and their advisors, department secretaries and their subordinates, local officials and groups in their communities complain that good ideas are dissipated in the process of execution.").
154. See, e.g., Lester M. Salamon, Rethinking Public Management: Third-party Government and the Changing Forms of Government Action, 29 PUB. POL'Y 255, 256 (1981) ("[R]ather than focusing on individual programs, as is now done, or even collections of programs grouped according to major 'purpose,' as is frequently proposed, the suggestion here is that we should concentrate instead on the generic tools of government action, on the 'techniques' of social intervention that come to be used, in varying combinations, in particular public programs."); CHRISTOPHER C. HOOD, THE TOOLS OF GOVERNMENT 2 (1983) ("We can imagine government as a set of administrative tools. . . . What government does to us-its subjects or citizens-is to try to shape our lives by applying a set of administrative tools in many different combinations and approach as an approach that "could examine courts, legislatures, administrative agencies, executives, juries, etc., and shed light on the particular attributes of each of these that would make a given institution especially suited to decide some issues rather regulatory instruments, their highly functionalist approach and commitment to neutral principles provided fertile ground for the more detailed, technocratic approaches to law and policy that emerged in the 1970s and 1980s. 156 From here, it was only a small step to the comparative evaluation of different policy instruments in regulatory intensive fields such as environmental law. In economics, a resurgence of interest in A.C. Pigou's conception of externalities elevated the question of instrument choice during the 1960s. 157 A decade later, this question had come to preoccupy the emerging field of environmental economics. 158 And by the 1990s, under the influence of than others. In effect, this approach would help select who should be the definers and determiners of the values that would guide the legal system. It would do so, neutrally, based on institutional capacity.").
156. See Peller, supra note 155, at 571-72 (1988) ("The premises of process theory became the background assumptions for a whole generation of scholars who believed the basic message that it was possible to talk about legal issues in neutral, apolitical ways, and that ideology was outside the realm of their legal discourse."). Coase played a central role in establishing comparative institutional analysis as the basic approach. See Coase, supra note 74, at 18 (observing that in a world of positive transactions costs "the problem is one of choosing the appropriate social arrangement for dealing with the harmful effects. All solutions have costs and there is no reason to assume that government regulation is called for simply because the problem is not well handled by the market or the firm. Satisfactory views on policy can only come from a patient study of how, in practice, the market, firms, and governments handle the problem of harmful effects."). See also Medema, Coase Theorem at Sixty, supra note 83, at 1051 (noting that one of the main points of The Problem of Social Cost was the recognition that "in the real world of positive transactions costs, all coordination mechanisms-markets, firms, and government-are costly and imperfect . . . . Comparative institutional analysis, then, becomes the method of choice, and the goal, from an economic perspective, is to select the coordination mechanism that maximizes the value of output for the problem under consideration.").
158. See, e.g., Oates & Baumol, supra note 83, at 97 (providing a taxonomy of environmental policy instruments, including price incentives, direct controls, voluntary compliance, and public production); WILLIAM J. BAUMOL & WALLACE E. OATES, THE THEORY OF ENVIRONMENTAL POLICY (2nd ed., 1988) (discussing theory of externalities experimental economics and mechanism design, economists were developing novel laboratory simulations to test the relative efficiency of different policy instruments. 159 As research agendas shifted toward the investigation of policy tools and techniques, there was a heightened emphasis on more formal methods and approaches. 160 By redirecting attention to the study of "generic" policy instruments, this new approach worked to separate the task of policy formulation from implementation and, in the process, to disembed policy tools or instruments from their broader political and institutional contexts. 161 At the core of this new thinking, as already suggested, was an increasingly abstract conception of policy instruments that was highly functionalist and typically framed in neutral terms. 162 Although the different disciplines varied in their normative commitments, there was a strong undercurrent of optimization animating much of this work along with a corresponding diminishment of politics. 163  163. See, e.g., Howlett, supra note 161, at 193 ("Policy design elevates the analysis and practice of policy instrument choice-specifically tools for policy implementation-to a central focus of study, making their understanding and analysis a key design concern.").
seen as a predominantly technical exercise best performed by experts. 164 Much of this work was structured around a linear assemblyline model of policy development divided into a sequence of discreet stages: design, adoption, implementation, and diffusion. 165 By reconceiving the task of regulation (and government more broadly) as a selection of particular instruments from a standard toolbox, there was a strong presumption that the right tool could be found to address the problem at hand. 166 This reinforced a general, common sense notion that good policy instruments tended to rise to the top, prove their worth, and then diffuse from their initial sites of experimentation to sites of emulation. 167 As these policies traveled, it was further assumed, they remained relatively intact-conceived as a bundle of design features that in the right hands could be tweaked and optimized depending on the needs of a particular jurisdiction. 168 In fact, explicit attention to how policies traveled (what came to be known as policy diffusion studies) had been underway since the late 1960s, emerging out of research on American federalism and state/local policy experimentation. 169 Early work in this area focused on the diffusion of policies in areas such as education, welfare, and civil rights. 170 By the 1980s, scholars working in international relations and related fields had adapted the basic model of domestic policy diffusion to the international context, with a strong focus on economic development and, later, environmental policy. 171 These studies typically employed a simple center-periphery model focused on policy experimentation in advanced early mover jurisdictions and the emulation and adoption of policies in less advanced jurisdictions. 172 States were assumed to be (and treated as) rational actors that were moving through various stages of development according to a crude version of modernization theory. 173 Explanations of the mechanics of policy diffusion in particular cases fell into several different categories: coercion by powerful states, competition, learning and emulation, and harmonization. 174 Notwithstanding the enormous influence of the standard policy diffusion story, however, it is incomplete in important ways. In particular, it stops short of important questions regarding how specific policies travel and get re-made in the process. It rarely attends to the role of knowledge practices, much less the actual networks of actors and institutions engaged

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in policy development and implementation. And it does not look reflexively at how the underlying conception of policy mobility itself shapes and constrains the possibility for policy innovation and learning in different contexts. More recent work in various social science disciplines, some of which goes under the rubric of "critical policy studies," has sought to offer a corrective. 175 By focusing on the ideologies, networks, and infrastructures that allow policies to travel, this work seeks to situate and explain the phenomena of policy mobility-what two geographers refer to as "fast policy"-in a broader context of globalization and neoliberal statecraft. 176 This work is valuable not only because it seeks to explain how policies travel but also because it focuses on the impacts that "fast policy" often has on domestic policy processes, diminishing the capacity for homegrown innovation, compressing policymaking cycles, exacerbating policy churn, and encouraging isomorphic mimicry. 177 Rather than assuming a stylized model of technocratic modernization, where policy innovation happens primarily in advanced jurisdictions and then diffuses to those lagging behind, this new work in critical policy studies seeks to unpack the assumptions and ideologies implicit in the standard model while also seeking to understand the real conditions under which different policy projects get traction in particular places.
Viewed terms that mimic the standard diffusion story. 179 In the meantime, an entire industry of experts, consultants, and policy professionals has emerged to support their spread, which has in turn worked to reinforce the official history noted above and a simple progressive story of innovation, refinement, and diffusion. But the real institutional history of these instruments, as we will see, suggests a far more complicated story.

B. Emissions Trading in Practice
Much of the official history of emissions trading traces a standard arc from theory to practice. Once the concept of emissions trading had been developed and refined by economists and others, the story goes, it was then put into practice. The reality, however, is quite different. In fact, early experiments with bubbles, offsets, and trading under the Clean Air Act did not draw upon economic theory in any systematic way but instead represented practical efforts to deal with the political consequences of non-attainment under the National Ambient Air Quality Standards (NAAQS). 180 These were not applications of theory, but concrete efforts to solve pressing problems of implementation. Their post hoc appropriation by economists and others seeking to bolster support for emissions trading thus says more about the ideological project pushed by the proponents of emissions trading than it does about any actual journey from theory to practice.
But theory and practice did begin to converge in the late 1980s and early 1990s, most prominently with the establishment of a formal cap-and-trade program to reduce SO2 emissions and control acid rain under Title IV of the Clean Air Act (often referred to as either the SO2 or acid rain trading program). This was the moment when emissions trading went mainstream, and it provided a major boost to efforts during the 1990s to extend these new market-based approaches to greenhouse gases. 182 As this Part shows, however, the much touted success of the SO2 trading program is not as robust as some proponents have suggested and the spread of emissions trading as a preferred instrument for reducing greenhouse gases (GHGs) has been far more contingent and uneven than the standard narrative suggests. In all cases, moreover, the challenges of building and maintaining these markets have required extensive and ongoing regulation, straining and sometimes exceeding the capacity of governments. Making emissions trading work in practice has turned out to be far more complicated than early proponents suggested. 183

Looking for Least-Cost Solutions
During the late 1960s, scientists and civil servants at the National Air Pollution Control Administration (one of EPA's predecessor agencies) began to use computer simulations to compare different approaches to reducing regional air pollution. The federal Air Quality Act of 1967 had called for the establishment of air quality control regions across the country and required that these different regions establish and demonstrate attainment with regional air quality standards for major criteria pollutants. 184 This was the germ of what became the NAAQS program in the 1970 Clean Air amendments. 185 These early air pollution modeling efforts focused primarily on large metropolitan areas struggling with bad air quality. During the late 1960s and early 1970s, Ellison Burton, a 183. See, e.g., DALES, supra note 76, at 97 (observing that the "administrative simplicity" of a market in pollution rights is "one of its main attractions"); Ackerman & Stewart, Reforming Environmental Law, supra note 24, at 1348 (arguing that the "bureaucratic tasks" involved in managing a system of marketable permit are, "in the aggregate, a good deal easier to discharge than the bureaucratic functions they displace"). mathematician, and William Sanjour, a physicist, produced a series of studies on different approaches to urban air pollution abatement. Drawing from operations research and linear programming, they developed mathematical models of cities and their emissions sources to compare the cost and effectiveness of various abatement strategies. 186 The goal was to assess different approaches to pollution control, with particular attention to "least-cost" strategies. 187 Some commentators have mistakenly identified Burton and Sanjour as economists and suggested that their efforts constituted an early incarnation of the idea of emissions trading that drew upon the work of Coase, Crocker, and Dales. 188 In fact, they were not economists. They never mentioned Coase, Crocker, or Dales in any of their work. They did not focus on property rights. And they never proposed anything like emissions trading.
What they did do was to initiate the first systematic study of alternative approaches to controlling pollution in different cities. These efforts can thus rightly be seen as the beginning of an effort to apply least-cost principles to the very complex pollution abatement challenge in these regional airsheds. 189 In a 1972 discussion with EPA Administrator William Ruckelshaus and others, Burton explained that his group was "studying less costly ways of achieving clean air." 190 Their goal, he noted, was to develop "regional least cost strategies, which may be on the order of only a fourth as costly as typical strategies now proposed." 191 Such strategies, moreover, "could be implemented through the use of effluent fees or other incentives for effecting self-regulation." 192 In sum, "the ideal system would achieve substantial benefits from air pollution abatement not only at minimum cost but also with minimum regulatory intervention." 193 By the early 1970s, then, civil servants and officials at EPA were beginning to frame least-cost approaches to air pollution abatement in the language of economics and had started to assess the prospects of using market-based tools such as effluent fees. But it would be a mistake to assume from this that Burton, Sanjour, and others at EPA were taking their insights from the emerging economics literature on instrument choice. 194 Instead, their work reflected the influence of operations research, linear programming, and the emerging science of decision-making. Optimization was the goal, based on elaborate computer simulations of different approaches.

Pragmatism and Flexibility Under the Clean Air Act
These general concerns regarding the costs of air pollution control became much more tangible during the first half of the 1970s as states struggled to comply with the newly established NAAQS. 195 In stubborn non-attainment regions such as computing systems" to "the development and evaluation of regional air pollution abatement strategies"); id. ("The regional control problem lends itself to formulation as an optimization problem." southern California, the challenge was particularly acute. 196 Under a strict reading of the law, bringing these areas into attainment with the NAAQS meant no new industry and severe restrictions on both stationary and mobile sources. 197 At one point, there was even discussion of the possibility of imposing severe restrictions on driving during the summer in southern California. 198 Needless to say, the potential fallout of such draconian limits on economic activity posed a serious political challenge to EPA. In response, EPA's regional office in San Francisco began to experiment with more flexible approaches that would resolve some of the challenges associated with NAAQS nonattainment. 199 From this and other similar efforts across the agency, the practice of using bubbles, offsets, and netting to ease the burden of Clean Air Act compliance emerged. 200 All of these approaches were formalized in regulations and legislative amendments in subsequent years and, along with a modest program for trading lead reduction credits as part of EPA's phaseout of leaded gasoline in the 1980s, they have often been identified as precursors to emissions trading. 201 Two points are important to emphasize here. First, there is no evidence that anyone directly involved in these early initiatives was reading Coase, Crocker, Dales, or any other economist. Indeed, upon closer inspection, the early offsets program looks more like a case of creative regulators solving a problem by creating flexible compliance options rather than an effort to test whether a market-based approach could work in practice. Put another way, this was not an effort to apply the insights of economic theory, but a pragmatic approach to solving the problem of how to permit new sources in non-attainment areas. In effect, this first example of "emissions trading" was an unintended consequence of the Clean Air Act and can be read as a feature of the flexible experimentalist design of the NAAQS program itself rather than an effort to import market-based tools into a command-and-control program. 202 Second, there was no serious and sustained trading, and no system to support trading under these programs. 203  203. See CARLIN, supra note 201, at 5-14 (noting that under the offsets program some 2,500 offsets trade had occurred, only 10% of which were between firms, with the rest (90%) occurring within firms). Carlin concludes that despite the challenges and limited typically one-off bilateral transactions tied to permitting decisions for individual sources, with the vast majority of trading (90% by the early 1990s) occurring within firms rather than between firms 204 This is a long way from a well-functioning cap-and-trade program.
Yet, the official history has characterized the use of offsets under the NAAQS program as a "political opportunity" to test the theory of emissions trading and marketable permits that economists had been elaborating since the 1960s. 205 By the second half of the 1980s, this had become the accepted story. 206 Upon closer inspection, this looks more like an act of historical appropriation than an accurate recounting of what happened. While the use of offsets, bubbles, and netting clearly stemmed from concerns about the costs of more rigid approaches, it is quite a stretch to claim that they represented a straightforward application of economic theory to the problem of air pollution control. Although this may seem like a minor point, it underscores again the larger ideological project that supported the rise of emissions trading as a preferred policy tool.

Mainstreaming Emissions Trading
During the late 1980s, the theoretical case for emissions trading and the practical effort to use flexible approaches under the Clean Air Act began to converge. This merging of theory and practice received a considerable boost from a newly formed network of policymakers, economists, environmental groups, and others operating under the umbrella of Project 88-an effort led by Senators Tim Wirth and John Heinz with the explicit aim of advancing market-base approaches to environmental pollution. 207 With a powerful support network pushing it at the highest levels of government, emissions trading was poised to go mainstream.
The 1990 Clean Air Act amendments provided the opportunity. 208 Title IV, which established the famous SO2 trading program to deal with acid rain, represented the first large-scale experiment with cap-and-trade. 209 According to the standard account, the inclusion of the trading program made passage of the 1990 Clean Air Act amendments "politically possible." 210 In signing the legislation, President George H. W. Bush stated that the trading program "represents the turning of a new page in our approach to environmental problems in this country. The acid rain allowance trading program will be the first large-scale regulatory use of market incentives and is already being seen as a model for regulatory reform efforts here and abroad." 211 The story of the SO2 trading program has been told many times. 212 The program itself was relatively simple in design. 213 Once in operation it would deliver a reduction of 10 million tons of SO2 per year below 1980 levels by the year 2000. 214 219 In establishing the program, however, Congress did not engage in any serious debate about the actual level of emissions (the cap). As Lisa Heinzerling pointed out, the democratic deliberation over ends that was supposed to be one of the key advantages of market-based approaches never occurred. 220 Most of the attention was directed instead at the procedures for allocating allowances and the more technical details (always a focus for well-paid industry lobbyists) of how the program would function. 221 While a handful of environmental groups embraced the new approach, much of the environmental community was skeptical. Concerns ranged from the uneven distributional impacts that could result from trading, with pollution hot spots created around facilities that chose to purchase allowances and continue emitting, thereby creating disproportionate impacts on frontline communities, to more general arguments that "Trading in the Right to Pollute," as a New York Times editorial put it, represented a corruption of environmental law's foundational commitments to preventing harm and protecting public 216. Id. 217. Id. 7-8. 218. Id. at 7. 219. Id. at 9. 220. See Heinzerling, supra note 26, at 303 ("Congress appears to have paid scarcely any attention to the pollution level set by the 1990 Amendments and to have concentrated instead on satisfying powerful interest groups through its allocation of permits.").

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health. 222 These concerns, particularly those focused on distributional impacts, have continued to haunt emission trading programs across a range of sectors and have been a key component of the larger environmental justice critique of mainstream environmental law. 223 In terms of performance, SO2 emissions did decline significantly by the end of the 1990s, falling well below the caps and well in advance of the deadlines. By 1999, actual emissions from generating units subject to Phase I were 2 million tons below the cap. 224 By 2008, units subject to Phase II had reduced emissions below the cap by a similar amount. 225 Witnessing these reductions, many economists and other observers were quick to claim that the theory of emissions trading had been vindicated. 226 But the overall success of the program was not as robust as early boosters claimed. Indeed, soon after the program began , 2013) (reporting on empirical study using facility-level and neighborhood data that documents disparities in emission burdens by race and ethnicity and concluding that "some carbon trades could worsen disparities in emissions burdens by race and ethnicity").
223. See, e.g., Kaswan, supra note 7, at 161 ("Market-based programs like cap-andtrade are in fundamental tension with the environmental justice paradigm. From a distributive justice perspective, they are indifferent to place. . . . The environmental justice community fears emission hot spots created by an industry or concentrated group of industries purchasing allowances rather than reducing emissions. From a participatory justice perspective, the industry flexibility and reduced governmental role a market-based system offers runs counter to the environmental justice movement's pursuit of participatory engagement and democratic empowerment."). operating in 1995, various observers noted that allowance prices were significantly lower than expected and that trading of allowances was quite limited. 227 Based on a series of studies, it also appeared that a substantial share of the reductions in SO2 emissions from power plants were coming from factors that had nothing to do with the trading program, such as the deregulation of freight-rail rates that allowed for shipment of low-sulfur coal from the Powder River Basin to eastern and midwestern utilities and declining costs for scrubbers. 228 Subsequent analyses have confirmed these findings. 229 The program also proved unable to adapt to the effects of other programs, notably the NAAQS. 230 As evidence of the health effects of fine particulates (PM 2.5) and the role of SO2 as a precursor to PM 2.5 became apparent during the 1990s and 228. See Ellerman & Montero, supra note 227, at 27 (concluding that "SO2 emissions have declined mostly for reasons unrelated to Title IV [and that] as a result the emission constraint imposed by Title IV is less binding, and the marginal cost of compliance, as well as the price of allowances, can be expected to be lower than had been initially predicted"); Ellerman and Montero point specifically to the deregulation of freight rail rates in the 1980s as the principal cause. See id. at 43. See also Burtraw, supra note 227, at 88-90 (discussing various factors contributing to reduced SO2 emissions, including deregulation of freight rail rates and declining costs of scrubbers).

Michael Hanneman, Cap-and-Trade: A Sufficient or Necessary Condition for
229. See Hanneman, supra note 224, at 228 (discussing coal switching as a result of railroad deregulation and declining prices for scrubbers as major factors driving reductions of SO2 emissions by electric utilities); Schmalensee & Stavins, supra note 212, at 111-12 (discussing railroad deregulation and switch to low-sulfur coal as responsible for a substantial share of emissions reductions during the early years of the program).
230. Schmalensee & Stavins supra note 212, at 116 ("While the SO2 allowance market functioned well, the broader regulatory environment served to end its effective life.").

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Congress had not given EPA sufficient flexibility to adjust the cap, the program was rendered obsolete. 232 What the acid rain trading program really illustrated then was the challenge of designing a cap-and-trade program in the face of uncertainty about impacts, drivers of cost reductions, and interactions with other laws and programs. Because the program was designed in relative isolation from these other factors, which was itself a product of the abstract conception of policy instruments that emissions trading exemplified, there was no real effort to build in flexibility to adapt to changing external conditions.
And, yet, despite these challenges, the SO2 trading program has been widely touted as a very successful experiment in emissions trading. 233 Its influence on environmental law and policy has been enormous, providing a source of pride for those pushing market-based approaches to pollution control and a common point of reference for critiques of earlier, more prescriptive forms of regulation. If one had to choose a poster child for second generation environmental law, the acid rain program would be it. 234 The much heralded success of the program also provided crucial support for the arguments advanced by scholars and policy professionals that the same tool could be used to tackle the much larger and more complicated problem of climate change. 235 Indeed, it is not too much of an exaggeration to claim that the SO2 trading program marked a key inflection point in the official history of cap-and-trade-the moment when it 232. Schmalensee & Stavins supra note 212, at 114 ("But the law did not give the EPA authority to adjust the Title IV program, such as by tightening the overall cap, in response to new information about the benefits (or costs) of emissions reductions.").
233. See Tietenberg, supra note 73, at 362 ("The most successful version of emissions trading to date has been its use in the United States for controlling electric utility emissions contributing to acid rain."). became the instrument of choice for reducing greenhouse gas emissions. 236 For if ever there were a problem that seemed tailor made to the use of cap-and-trade, it was GHG emissions. Almost everything about the problem seemed to cry out for trading. Greenhouse gases such as carbon dioxide exert the same environmental effect regardless of where they are emitted. 237 Vast differences in the marginal cost of abatement across a huge number of sources indicate significant potential gains from trade. 238 And trading among sources does not produce any local hotspot effects for the primary pollutants targeted by the program. 239 236. But see id. at 189 ("In retrospect, the American sulfur dioxide experience would prove more of a flukish case rather than a reliable model for carbon.").
237. See Lawrence A. Goulder & William A. Pizer, The Economics of Climate Change 9 (NBER Working Paper 11923, 2006) ("The defining feature of the climate-change problem may be its intrinsically global nature. Greenhouse gases tend to disperse themselves uniformly around the globe. As a result, the climate consequences of a ton of emissions of a given greenhouse gas do not depend on the location of the source, either within or across national borders, and shifts in emissions across locations do not change global climate impacts. Under these circumstances, economic efficiency calls for making market-based systems as geographically broad as possible."). The challenge of creating an equivalence between the global warming effects of different greenhouse gases, given their different radiative forcings and residence times, has been addressed through the use of Global Warming Potentials, which uses the currency of CO2-equivalent (the global warming potential of a ton of CO2) as the baseline. Because emissions trading does not augment or affect minimum local pollution standards in a way that could prevent hot spots, it is poorly suited to address unevenly distributed air pollutants that directly impact public health. Conversely, cap and trade is an appropriate regulatory solution for persistent (and, therefore, well-mixed) pollutants that lack strongly localized negative health effects. In the latter situation, emissions trades between different sources will have little impact on local concentrations of the pollutant, minimizing distributive justice complaints."). However, as both Adelman and Farber

Going Global
During the 1990s, U.S. policymakers drew upon these arguments and the experience of the SO2 trading program to advance the case for emissions trading as a central component of the emerging international climate policy regime. 240 In particular, U.S. diplomats succeeded in their efforts to include emissions trading among state parties as one of several "flexible mechanisms" in the 1997 Kyoto Protocol. 241 Even though the United States never became a party to Kyoto, and affirmatively withdrew from the process in 2001, its success in embedding the concept of emissions trading in the Protocol would prove to be enormously influential in the years ahead. 242 In particular, the European Union (EU), which had long resisted emissions trading, embraced the instrument as its chief mechanism for complying with Kyoto. 243  instrument developed in one jurisdiction (the United States) was borrowed by or transplanted to another jurisdiction (the EU). 244 There is some truth in this observation: by the early 2000s, the idea of emissions trading, bolstered by the apparent success of the U.S. SO2 trading program, had become more acceptable to EU policymakers.
But there were also important internal political reasons driving adoption of emissions trading; namely, the political impossibility of adopting a harmonized EU-wide carbon tax. 245 Because tax measures require unanimity in the EU, a single member country could effectively block any such measure. By contrast, an emissions trading system could be adopted as an EU wide regulation. 246 As the EU ETS got up and running, various constituencies invested in the spread and overall success of emissions trading expanded and professionalized. Over a relatively short period of time, emissions trading "evolved from being a non-option for the European Union to the cornerstone of European climate policy." 247 Some saw the EU ETS as a model for the rest of the world. Stavros Dimas, the EU Environment Commissioner declared triumphantly in 2008 that the EU ETS would be "the prototype for the world to imitate." 248 But the overall record of the EU ETS has been mixed at best. Problems of overallocation, price volatility, fraud, windfall payments, and, most importantly, limited encouragement of low carbon investment have raised questions about the overall efficacy of the instrument. 249 Recent efforts to resolve the overallocation problem and raise prices appear to be working, but there are ongoing concerns regarding whether prices will remain high enough over a sufficient period of time to stimulate substantial investment in low emissions alternatives. 250 Many EU member states have also adopted their own more aggressive policies to reduce greenhouse gases in order to reach their climate targets. 251 In the United States, subnational GHG emissions trading systems have been up and running for more than a decade. In 2009, after six years of work, eleven mid-Atlantic and Northeastern states launched the Regional Greenhouse Gas Initiative (RGGI), which imposed a modest cap-and-trade system on CO2 emissions from the power sector. 252 Although RGGI has functioned relatively well (given its simple design and modest cap), the program was plagued by overallocation problems for several years. 253 In 2013, the RGGI states intervened in the program to significantly reduce the cap starting in 2014. 254 Prices rose accordingly, from around $2.00 a ton to more than $4.00, but have still been quite low (below $6.00 per ton in 2020) and insufficient to encourage significant fuel switching, much less new investment in low carbon technologies. 255 Several years after RGGI, California launched its own much more ambitious cap-and-trade program. 256  enabling legislation-the California Global Warming Solutions Act of 2006-did not mandate cap-and-trade, it did contemplate the possibility of market-based approaches and included several criteria for evaluating such programs in the future. 257 At the urging of then Governor Arnold Schwarzenegger, the California Air Resources Board, one of the most sophisticated environmental regulatory agencies in the world, spent several years designing a cap-and-trade program, learning from the mistakes of other programs such as the EU ETS. 258 Most importantly, California deliberately positioned its cap-and-trade program as one of several major programs intended to reduce greenhouse gases. In particular, California has adopted an aggressive Renewable Portfolio Standard and a Low Carbon Fuel Standard in addition to a host of other policies directed at energy efficiency, distributed generation, storage, electrification of transportation and other sectors, and land use. 259 By design, the California cap-and-trade program is not the driver of emissions reductions in the state, but operates instead as a backstop to pick up emissions not covered by other more prescriptive regulations and to ensure that if those other instruments fail to work as intended, the state will continue to reduce its emissions in accordance with its targets. 260 Redundancy rather than efficiency has been the guiding principle behind California's climate policy, with most of the state's reductions of greenhouse gas emissions coming from other, more prescriptive policies. 261 with trading starting in 2013. For the first two years it covered electricity generators and large industrial facilities. In 2015, the program was expanded to cover distributors of transportation, natural gas, and other fuels. Overall, the program covers sources responsible for 85% of California's greenhouse gas emissions. 260. Bang et al., supra note 258, at 17 (describing role of cap-and-trade program as a backstop and insurance policy to ensure that the State will meet its emissions targets). 261. Id. at 13 ("The California system was designed to create the impression that efficient markets were being used to control emissions in the state, when, in fact, most Over the last decade, a handful of other national and subnational jurisdictions around the world have adopted or are planning to adopt emissions trading systems in one form or another, including New Zealand, South Korea, Switzerland, Quebec, Ontario, South Africa, Colombia, and Mexico. 262 In perhaps the most significant move to date, China launched a national emissions trading system in 2020, after several years of testing via seven regional pilot programs and extensive engagement with a host of international partners. 263 In addition to a shared enthusiasm for market-based instruments, what connected all of these efforts was a growing infrastructure of consultants, experts, and policy professionals. Starting in the early 2000s, groups such as the International Emissions Trading Association (IETA), the International Carbon Action Partnership (ICAP), and the Carbon Pricing Leadership Coalition (to name some of the most prominent), together with prominent NGOs such as the Environmental Defense Fund (EDF) and multilateral development organizations such as the World Bank have worked to facilitate carbon pricing around the world. At the same time, a cottage industry of bankers, lawyers, consultants, and policy experts has emerged to provide advice and services to governments considering the adoption of various carbon pricing initiatives. In effect, these expert networks have allowed emissions trading and carbon pricing to travel globally. They operate as vectors of fast policy-a carrier class helping to establish emissions trading as policy orthodoxy for the Davos set.
But the uncritical acceptance of such policy orthodoxy did not always go smoothly for those on the receiving end. Witness the of the real effort in cutting emissions came from more expensive regulatory and procurement mandates."). problems that Kazakhstan, a former Soviet Republic and the largest economy in central Asia, has faced in trying to implement an emissions trading system. Known formally as the Kazakhstan Emissions Trading System or Kaz ETS, the program was intended to be up and running by 2013, a mere thirteen months after the Government's decision to adopt an ETS.
By the time the program launched, however, key issues had not been resolved, including the all-important issues of allowance allocation and market oversight. 264 Basic installationlevel data were not available. 265 A well-functioning monitoring, reporting, and verification (MRV) system was not in place. 266 There was no registry to track and record allowance transactions. 267 And there were ongoing questions about the scope of the program in future years. 268 The result was massive confusion and growing resistance from industry, especially as the economy slowed during 2014-15. With criticism mounting and many issues unresolved, the government formally suspended the program in April 2016 and went back to the drawing board. After receiving assistance from the World Bank's Partnership for Market Readiness and a host of other organizations, donor governments, and consultants, Kazakhstan relaunched its ETS on January 1, 2018. The first actual trade of allowances happened at the end of 2019 and the average weighted price of allowances for 2020 was just over one US dollar. 269 The case of Kazakhstan illustrates the phenomenon of fast policy. 270 In a textbook example of "isomorphic mimicry," Kazakhstan sought to emulate the EU ETS as a set of best practices that had been endorsed by the policy establishment 264 270. See Gulbrandsen et al., supra note 264, at 127 ("The fact that policy-makers and legislators assumed that it would be possible to establish an operational ETS from scratch in just over twelve months shows an inadequate grasp of the complexities of such a market-based system."). and the donor community. 271 In hindsight, it is clear that not enough attention was given to domestic capacity to implement a complicated emissions trading program. 272 Nor was there any serious consideration of alternative approaches (much less the capacity to cultivate novel, innovative approaches). The highly compressed schedule also meant that there was no time for deliberation or meaningful stakeholder involvement. In the end, Kazakhstan lost the better part of a decade in its effort to reduce greenhouse gases and there is no evidence to date that the current program will make any significant difference in driving decarbonization.
This failure to recognize the hard work of implementation is a common theme in the history of emissions trading. Creating an actual, functioning program is much more challenging than the simple model advanced by John Dales and other economists in the 1960s and 1970s and embraced by environmental lawyers during the 1980s. In their view, one of the chief virtues of emissions trading was administrative simplicity. None of these early proponents gave much, if any, thought to the challenges of implementation or to the politics of market design. 273 Yet detailed investigations of various emissions trading markets over the last two decades have revealed the intense politics that often focus on key design issues, the ways in which seemingly technical nuts and bolts issues can make a large difference in program performance, and the considerable challenges involved in running these programs. 274

IV. THE POVERTY OF THEORY
There is a general, common sense tendency in law and policy to assume that problems come to us fully formed and that the 271. See id. at 117 (concluding that "copying and fast-track implementation of a policy model before it is fully developed and adapted to the domestic or local context may prove counter-productive"); ANDREWS ET AL., supra note 17, at 29 (arguing that isomorphic mimicry is "endemic in development and has become a primary reason why countries do not build real capability even after years of policy and reform engagement and billions of dollars of capacity building work"). responses we fashion do not affect how we understand those problems. 275 This assumption is deeply embedded in the functionalist model of instrument choice that has dominated environmental law for decades.
But, of course, the oft-cited remark sometimes attributed to Mark Twain contains a great deal of truth: "To a man with a hammer, everything looks like a nail." 276 As various scholars have pointed out across a range of different contexts, tools matter at an epistemic or cognitive level. 277 Policy instruments perform substantive ideological work in formatting problems. By shaping the ways in which we come to see problems, they condition the possibilities for response.
A central claim of this Article is that the theory of instrument choice itself has also shaped and influenced the ways in which we have come to understand state capacity and government problem solving. In viewing state capacity through the lens of instrument choice, we have internalized a restricted view of government that tends to diminish the institutional, human, and technical resources needed for creative problem solving.
Yet, if the compounding crises of the last year have taught us anything, it is the vital importance of mobilizing such resources across multiple public and private domains in order to mount an effective response. Recovering the ability to conceive and execute the kind of broad-based, multi-pronged approach that problems like the COVID-19 pandemic, structural inequality and systemic racism, and climate change demand thus requires that we recognize and interrogate the intellectual and practical constraints that come with the theory of instrument choice we have been working with for much of the last several decades. This Part steps back and offers some provisional thoughts on what a more critical and reflexive theory of instrument choice might look like and its implications for efforts to rethink and reimagine a more responsive and expansive approach to 275 Although it has roots in mid-twentieth century concerns with the techniques of government, the policy instrument idea came to prominence during the last quarter of the 20 th century. The prolonged economic crisis of the 1970s focused attention on the problems of regulation, leading almost naturally to a concern with the relative efficiency of different instruments, which then led (again almost naturally) to a preference for new marketbased approaches over incumbent "command-and-control" approaches. All of this was of a piece with the consolidation and growth of the "policy state" during the second half of the twentieth century and, starting in the 1970s, the diminishment of certain categories of state intervention and public provisioning under the relentless assault of neoliberal policy commitments. 278 Our tendency to think of policy instruments in abstract, isolated terms is a product of these late twentieth century intellectual currents. Separating the tools of statecraft from the messy realities in which they operate provided a clean slate on which to evaluate different instruments while largely ignoring a much harder set of questions regarding how these instruments move though the political process, how they get operationalized in actual programs, and how they influence broader conceptions of government. In economics and environmental law, this 278. See, e.g., KAREN ORREN & STEPHEN SKOWRONEK, THE POLICY STATE: AN AMERICAN PREDICAMENT 28-29 (2017) ("Policy is animated by discontent with the status quo, by circumstances as they unfold, by problems as they arise. The policy motive is open-ended, instrumental, calculating, and creative; it seeks efficiency and anticipates more policy to come. . . . [E[ach policy moves on its own tangent. Although a policy may build on or coordinate with another, the impetus, goals, and guidelines tend to be discrete, particularized, and, to a meaningful degree, independent. This fact complicates the extent to which the future is susceptible to control. A policy state will strive to achieve central direction, to impose some overhead management of its many commitments and goals, but this capacity is not easily cultivated. In the United States, the effort confronts an underlying structure of authority that is fragmented, conflict ridden, and battered regularly by elections."). See also DANIEL RODGERS, AGE OF FRACTURE 75 (2012) (describing new found faith in "the wisdom and efficiency of markets" and "disdain for big government taxation, spending, and regulation" as core ideological commitments that took hold across much of the political spectrum in the United States starting in the 1970s). exercise in progressive abstraction provided the basis for a sustained critique of earlier "command-and-control" approaches to pollution control and widespread enthusiasm for new marketbased tools on the ground that they would be cheaper and more democratic.
One common misconception that has resulted from this approach is the idea that policy instruments have a singular essence or true nature that is all too often corrupted by the rent seeking and incompetence that inevitably accompany a policy as it finds its way into the world. And, so, when a policy instrument fails to work as intended, we hear from a chorus of dissatisfied experts bemoaning the ways in which the political process and government bureaucrats have distorted the policy instrument and undermined its ability to deliver. This has been a standard response in the face of ongoing problems with various emissions trading programs and with the use of markets in other domains to solve problems of collective concern. 279 This is wrong. When it comes to policy instruments and politics, it is always a package deal. Recognizing this ex ante and thinking about ways to design policy to accommodate this stubborn reality might help us design better policies and package them together in ways that promote a more positive political reception. 280  sequencing, and feedback. 281 There are deeper questions here about the role of the public and its relationship to government problem solving that need to be examined. 282 The crucial point to recognize is that the policy instrument idea itself, together with the decades long debate over instrument choice, has affected how different publics have come to see and understand certain problems and the possibilities for response. 283 Policy instruments carry with them and actively produce specific representations of the problem or issue to which they are directed. 284 Put another way, instruments contain their own politics of knowledge and social control. They have their own distinct political economy and their own theory of government. 285 The great value of a more reflexive and critical approach to policy instruments is that it trains attention to the recursive effects that instruments have on our understanding of problems and what counts as an appropriate response. Once we start to see policy instruments as part of a broader political economy of knowledge making within and around the state, a more expansive set of positive lessons and normative possibilities opens up.
Most obviously, it becomes clear that policy instruments are not widgets even if it is sometimes helpful to think of them as such. They are not simply things that can be pulled off the shelf and used for this or that problem in this or that place. They are made and remade in specific contexts. They mutate as they travel. They cannot be understood outside of the specific social and material conditions that give them life. And they are never divorced from politics.
Our tendency to view policy instruments as widgets and to reduce the tasks of government to a choice among instruments is, in part, a symptom of a particular mode of abstraction-an illustration of what Edward Thompson referred to in another context as "the poverty of theory." 286 By deflecting attention from the real historical conditions and social relations in which government interventions of any kind are always embedded and realized, these kinds of abstractions tend to take on a life of their own, circulating through expert networks and institutions that too often have only a superficial understanding of the problem at issue. 287 As these efforts become embedded in global, cosmopolitan policy projects, they can do great violence to the 285. See Lester M. Salamon, The New Governance and the Tools of Public Action: An Introduction, 28 FORDHAM URB. L.J. 1611, 1613 (2011) (observing that each policy instrument "has its own operating procedures, its own skill requirements, its own delivery mechanism, indeed its own 'political economy'").
286. See E.P. THOMPSON, THE POVERTY OF THEORY AND OTHER ESSAYS (1978). 287. See ANDREWS ET AL., supra note 17, at 46 ("Having deemed that a particular development intervention 'works,' . . . too many researchers and policymakers mistakenly take this empirical claim as warrant for advising others that they too should now adopt this intervention and reasonably expect similar outcomes. Among the many difficulties with transplantation is that the organizations charged with implementing the intervention in the novel context are grounded in neither a solid internal or an external folk culture of performance."). vernacular institutions and capabilities in different jurisdictions around the world. 288 Putting policy instruments back into real life will require a different kind of legal and social science research that views them in motion, recognizes that they are always contested, and is sensitive to the ideological work that they perform. Some elements of this are already taking shape in the fields of policy history, critical policy studies, and law and political economy. 289 Bringing these insights into environmental law and climate policy could provide the basis for a more reflexive understanding of how policy instruments emerge, gain momentum, and shape the possibilities for action.
Such an understanding might also allow us to begin to investigate the deeper political rationalities that have sustained the instrument choice debate over the last several decades. As this Article has suggested, the framing of government problem solving as a largely technical choice among different instruments based on systematic comparative evaluation leaves little room for new publics to emerge and engage in the kind of collective deliberation over problem solving that should be at the 288. Witness the enthusiasm for "shock therapy" in the effort to install market economies in the former Soviet bloc. In his reflections on E.P. Thompson's contributions to critical legal history, Robert Gordon used this experience to offer a searing indictment of fast policy: "But now more than ever the terrible simplifiers are roaming the globe, prescribing 'shock therapies' for economic stagnation in post-Communist societies and the Third World in the form of 'fixed and stable property rights,' 'privatization,' and 'free markets.' Evidently, they are without the faintest knowledge of the political, legal, and cultural contingencies in which such institutions developed even in the Western capitalist economies-not to mention the human wreckage such development often entailed-and certainly without the slightest reflection on the indigenous political and heart of democratic self-governance. 290 In recognizing this, we can perhaps start to see that state capacity is not a power waiting to be deployed, much less a set of tools that can be mobilized in response to particular well-defined problems. Rather, state capacity is built in the process of struggling to define and solve actual problems in the real world-problems that have been brought to light by and, at the same time, stir into life new publics. 291 Notwithstanding the rigor that it has brought to the question of government problem solving, the instrument choice debate has taken the whole question of government action out of this broader public context. By defining problems in narrow instrumentalist terms and, all too often, as the absence or lack of a preferred solution (e.g., climate change is a problem of market failure that can be solved by fixing the market), our collective capacities as publics capable of doing the deeper political work to characterize and struggle with real problems have atrophied. 292 290. Cf. DEWEY, supra note 19, at 122-23 (observing that "the public is so bewildered that it cannot find itself. . . . What is the public? If there is a public, what are the obstacles in the way of its recognizing and articulating itself? Is the public a myth? Or does it come into being only in periods or marked social transition when crucial alternative issues stand out, such as that between throwing one's lot in with the conservation of established institutions or with forwarding new tendencies.").
291. See ANDREWS ET AL., supra note 17, at 141 ("[P]roblems force policymakers and would-be reformers to ask questions about the incumbent ways of doing things, and promote a search for alternatives that actually offer a solution (rather than just providing new ways of doing things). . . . [G]etting the right grip on the characterization of the problem can unleash efforts to solve the problem."); LERMAN, supra note 282, at 245 ("But at the heart of collective self-governance are citizens who believe that they share common problems and who understand that the role of government is to help achieve this vision. By rebuilding this understanding, we might also revitalize the public reputation. And in so doing, we can build the capacity of government to tackle the serious issues we face as a nation and to work toward a society that benefits us all.").
292. See WENDY BROWN, UNDOING THE DEMOS: NEOLIBERALISM'S STEALTH REVOLUTION 39 (2015) ("As neoliberalism wages war on public goods and the very idea of a public, including citizenship beyond membership, it dramatically thins public life without killing politics. Struggles remain over power, hegemonic values, resources, and future trajectories. This persistence of politics amid the destruction of public life and especially educated public life, combined with the marketization of the political sphere, is part of what makes contemporary politics peculiarly unappealing and toxic. . . . Neoliberalism generates a condition of politics absent democratic institutions that would support a democratic public and all that such a public represents at its best: informed passion, respectful deliberation, aspirational sovereignty, sharp containment of powers that would overrule or undermine it."). See also Emerson, supra note 29, at 189 ("To avoid this dismal fate, it is no answer to abandon the state and attempt to form some kind of social movement without recourse to administrative forms. A public sphere Recovering those capacities in the case of climate change will require that we reject the elite, inside-the-beltway dealmaking that has characterized so much of federal climate policy for so long and resulted in such spectacular and, some would argue, predictable political failures. 293 But it also requires a reckoning across multiple domains with the ways in which the public has historically been restricted to a largely white and privileged constituency and how this in turn has contributed to a grossly distorted state and ongoing state violence against Black people and other groups. One of the great challenges facing climate politics in the current moment is whether the broad and growing political mobilization demanding climate action, spearheaded by the youth movement, can translate into actual legislation that will rebuild and redirect state capacity in a manner that is not only commensurate with the scale of the problem but also recognizes and responds to its deep connections to structural inequality and structural violence. 294 For far too long, these connections have been largely invisible to mainstream environmental politics-a function in part of the policy instrument theory of state capacity that we have been working with for much of the last forty years. requires a public law to be efficacious. We need an alternative way to think about the state's functions that remains vital in our intellectual heritage and our institutional practices.").
293. See THEDA SKOCPOL, NAMING THE PROBLEM: WHAT IT WILL TAKE TO COUNTER EXTREMISM AND ENGAGE AMERICANS IN THE FIGHT AGAINST CLIMATE CHANGE 129 (2013) (concluding that the U.S. Climate Action Partnership push for cap-and-trade legislation during President Obama's first term "suffered from a failure of democratic political imagination, and a misconception of how U.S. politics generates reform breakthroughs, on the rare occasions when it does. Big, society shifting reforms are not achieved in the United States principally through insider bargains. They depend on the inspiration and extra oomph that comes from widely ramified organization and broad democratic mobilization."), available at https://perma.cc/F8JP-33MS.
294. See PAUL FARMER, PATHOLOGIES OF POWER: HEALTH, HUMAN RIGHTS, AND THE NEW WAR ON THE POOR 8 (2005) (describing structural violence "as a broad rubric that includes a host of offensives against human dignity: extreme and relative poverty, social inequalities ranging from racism to gender inequality, and the more spectacular forms of violence that are uncontestedly human rights abuses, some of them punishment for efforts to escape structural violence").

B. Emissions Trading, Carbon Pricing, and the Dilemmas of Fast Policy
Looking back at the history of emissions trading and carbon pricing, one sees a recurring story of slippage between theory and practice manifest in a tendency by various economists, lawyers, and policy professionals to appropriate facts and press them into service of a largely untested set of theoretical arguments. The relative ease with which advocates of emissions trading constructed a powerful origins story and then stitched together various subsequent efforts into a single narrative provides an important lesson for those who take their history from people with skin in the game. While it is impossible to know the overall impact of this ideological exercise, there is no question that it contributed to the sustained normative momentum that market-based approaches have enjoyed in climate policy and environmental law.
As suggested, this way of thinking about policy instruments and government intervention has constrained our thinking about solutions to the climate emergency in ways that we may not fully appreciate. While it is undeniably true that emissions trading, and other forms of carbon pricing, can play a role in reducing GHG emissions, the history of emissions trading reveals that it is no match (and unlikely to ever be) for the scale of the challenge.
Indeed, recent estimates indicate that we need to be reducing global emissions by at least 7.5% per year, starting now, if we want to have a chance of hitting the 1.5 degree Celsius target. 295 No cap-and-trade program or carbon tax, at any scale, has ever come anywhere close to that level of ambition. 296 We simply have 295. See, e.g., UN ENVIRONMENT PROGRAMME, EMISSIONS GAP REPORT 2019 xx (2019) (reporting that emissions will have to decline by 7.6% per year starting in 2020 on average to reach the goal of limiting warming to 1.5 degrees C). 296. A recent assessment of the EU ETS found that it reduced CO2 emissions in the EU by about 1.2 billion metric tons between 2008 and 2016, equivalent to a 3.8% reduction in total EU emissions and a 7.5% reduction in sectors covered by the EU ETS over this time period. These reductions are not annual reductions but occurred over a nine year period. On an annual basis, reductions were below 1% per year for covered sectors. no reason to be confident that either emissions trading or a tax could drive rapid decarbonization of the global power sector combined with equally rapid electrification of transportation and other sectors of the global economy. While there are hopeful signs that we are making progress in some countries, such as the U.S., toward a decarbonized power sector, this has resulted from various government mandates and subsidies, combined with the massive decline in natural gas prices, rather than from carbon pricing. More important, even with those mandates and subsidies, the current clean energy transition is not scaling fast enough, and we have barely started the harder process of electrifying transportation and other sectors.
Climate change, of course, is also much more than an energy problem. Any effort to make real, lasting progress in reducing global emissions will also require a fundamental rearrangement of existing patterns of land use and agricultural production, all in the face of rising demand for food and bioenergy and increased climate disruption. 297  (discussing connections between land use and climate change and noting that in the absence of substantial, rapid emissions reductions reliance on large-scale land-based mitigation is expected to increase, which could further exacerbate competition for land, increase food insecurity, and undermine sustainable development goals).
forest fires in California, Australia, Russia, and Brazil have made clear, the land question looms increasingly large in the climate change picture and may well turn out to be the hardest and most important part of the problem. 298 In sum, these are hardly the kinds of problems that can be solved with the standard tool kit of market-based policy instruments. While harnessing the price system to send signals to investors and consumers alike clearly has a role to play, at best such an undertaking offers a modest tactical approach to a set of deep-seated structural problems that go to the heart of the contemporary world order. 299 Put another way, the current and deepening climate emergency requires a categorically different level of response than simply getting the prices right.
Defenders of these approaches may argue that it is unfair to demand so much from these instruments-that they were never put forward as the single or best solution to the climate change problem. But the record reveals numerous instances stretching over almost thirty years where prominent economists and leading policymakers have advocated carbon pricing in one form or another as the most sensible approach to reducing greenhouse gases and have argued specifically that they should be used instead of other approaches. 300 Indeed, the entire logic of carbon 298. Id. See also IPCC, GLOBAL WARMING OF 1.5°C, supra note 52, at 462 ("Emerging evidence indicates that future mitigation efforts that would be required to reach stringent climate targets, particularly those associated with carbon dioxide removal (CDR) (e.g., afforestation and reforestation and bioenergy with carbon capture and storage; BECCS), may also impose significant constraints upon poor and vulnerable communities via increased food prices and competition for arable land, land appropriation and dispossession with disproportionate negative impacts upon rural poor and indigenous populations.") On the unprecedented recent fires in California, Australia, (2020) (arguing for an economy-wide, revenue neutral carbon fee, which would "produce faster and greater emissions reductions at lower cost to the economy than regulations or subsidies). This plan has subsequently been endorsed by a broad coalition of leading companies, several prominent environmental groups, five of the seven oil and gas supermajors, three leading utilities, and a large solar company as well as 3,500 pricing is premised on the notion that other policies should not be allowed to interfere with the workings of the price system. 301 To be fair, there may have been a time when carbon pricing did represent the best policy option for reducing greenhouse gases. Had the international community been able to muster the courage and commitment to enact and maintain a high carbon price twenty or thirty years ago, perhaps the price system could have worked its magic. Needless to say, we are well past that point today. Given that we now need to reduce emissions globally to close to zero within a few short decades, it seems foolish to bet on carbon pricing as the best tool for the job.
Another way of saying this is that it is time to move beyond the narrow economistic understanding of climate policy that has framed mainstream debates for decades. Thinking about climate change as an economic problem (a problem of market failure) is part of the problem-a symptom of our great derangement. 302 As suggested, such a view turns the problem into one of improper incentives and faulty price signals rather than a broad public problem that requires a sense of ownership and responsibility grounded in a recognition that the climate economists, the past four chairs of the Federal Reserve, twenty-seven Nobel Laureates, and fifteen former chairs of the President's Council of Economic Advisors. Id. See also JOSEPH E. STIGLITZ ET AL., REPORT OF THE HIGH-LEVEL COMMISSION ON CARBON PRICES 9 (2017) ("A well-designed carbon price is an indispensable part of a strategy for reducing emissions in an effective and cost-efficient way.").
301. The leading proposal from the Climate Leadership Council calls for a carbon tax of around $40 per ton starting in 2021 in conjunction with a withdrawal of other policies. See https://clcouncil.org. See also George P. Schultz & Ted Halstead, The Winning Conservative Climate Solution, WASH. POST, (Jan. 16, 2020), available at https://perma.cc/GEX4-EMYC ("The winning Republican climate answer is . . . carbon pricing. Just as a market-based solution is the Republican policy of choice on most issues, so should it be on climate change. A well-designed carbon fee checks every box of conservative policy orthodoxy. Not surprisingly, this is the favored option of corporate America and economists-including all former Republican chairs of the president's Council of Economic Advisers.").
302. See, e.g., Lenton et al., supra note 41, at 595 ("If damaging tipping cascades can occur and a global tipping point cannot be ruled out, then this is an existential threat to civilization. No amount of economic cost-benefit analysis is going to help us. We need to change our approach to the climate problem."); James K. Galbraith, Economics and the Climate Catastrophe, 17 GLOBALIZATIONS 1, 5 (2020) ("It is difficult to see how a discipline whose ideal types are perfect competition, full efficiency, and high levels of substitutability can deal with a problem whose chief features are large scale, wastage, and technological lock-in. Indeed, mainstream economics is, and always has been, an active obstacle to clear thought and effective action on resources, the environment, and climate change."). See also AMITAV GHOSH, THE GREAT DERANGEMENT: CLIMATE CHANGE AND THE UNTHINKABLE (2017). crisis and the inequality crisis are the same crisis. While standard economic tools such as cost-benefit analysis and market-based instruments may be appropriate for standard pollution problems, they are woefully inadequate to understand, frame, and respond to the climate emergency.
This does not mean that we should abandon or dismantle existing cap-and-trade programs or that we should seek to replace other forms of carbon pricing. Obviously, we should make existing programs work as well as possible. In a world of triage and tragic choices, we need to be trying everything we can to reduce greenhouse gases. In the United States, at the federal level in particular, carbon pricing could provide an important source of revenue for a government facing record budget deficits, especially in the aftermath of the COVID-19 pandemic. And at least some of these revenues could be directed to important activities that are harder to manage under other policies or, more importantly, to communities facing loss of income and jobs as a result of the clean energy transition. 303 But we should not be distracted by the supposed magic of the price system and we should maintain a healthy skepticism toward those who continue to call for carbon pricing as the central pillar of any response to climate change. 304 Given the stakes involved, relying on the price system to build new trilliondollar industries, secure massive investments in new infrastructure, and retire trillions of dollars of existing assets over the span of a few short decades seems far too risky. 305 303. See, e.g., Sheldon Whitehouse & James Slevin, Carbon Pricing Represents the Best Answer to Our Climate Danger, WASH. POST (March 10, 2020), available at https://perma.cc/948X-F4TL (arguing for a carbon price as the "most powerful and efficient way to reduce carbon pollution" and as a critical source of revenue to support a just transition for energy workers and communities 305. See Rosenbloom et al., supra note 66, at 8664 ("In order to address the urgency of climate change and to achieve deep decarbonization, climate policy responses need to move beyond market failure reasoning and focus on fundamental changes in existing sociotechnical systems such as energy, mobility, food, and industrial production.").
Proponents of cap-and-trade and carbon pricing will inevitably point to the relative inefficiency of so-called complementary policies and to the tradeoffs involved with any particular course of action. These arguments typically involve comparing the static costs per ton of avoided GHG emissions based on a narrow and highly circumscribed understanding of the different instruments. In virtually all of these analyses, the complementary policies turn out to be more expensive than carbon pricing. 306 But if we push on these numbers a bit and investigate the ways in which they are calculated, they are shakier than proponents may be willing to admit. 307 Most importantly, these comparisons miss the scale, urgency, and dynamic nature of the challenge. Carbon pricing may indeed be a superior tool when the goal is to make incremental reductions on the margin. But it is the long-term positive spillovers that come with more prescriptive forms of regulation that are crucial in responding to climate change. Mandatory purchase obligations for renewable energy projects starting in the 1980s and reinforced by the Renewable Portfolio Standards of the 1990s and 2000s have created whole new industries in wind and solar in the United States. 308 Direct subsidies and tax credits have reduced the costs of renewable energy projects and allowed them to compete with fossil fuel based generation.. 309 Net metering has led to a boom in rooftop solar. 310 And storage mandates are driving rapid deployment of new grid scale and distributed storage. 311 This may look like industrial policy to some, but if we don't start picking winners soon, we all lose.
On infrastructure, it should be obvious that tweaking the price system is never going to mobilize sufficient investment in high voltage transmission lines, local electricity distribution systems, new electric vehicle charging infrastructure or the electrification of buildings (to name only some of the more obvious challenges) at the scale and pace needed to achieve rapid decarbonization. For that to happen we need to embrace approaches that can drive new investments, guarantee recovery of prudent costs, and accelerate retirement of existing assets. 312 There are lessons here from prior episodes of government mobilization to facilitate dramatic and rapid technological transitions, as well as from more mundane and longstanding models of regulation such as public utility law. As this study and various others have also noted, net energy metering also results in substantial cross subsidies from customers without distributed generation, often poorer customers, to those with distributed generation, often wealthier customers. See id. at 4 (concluding that net energy metering leads to substantial subsidies from non-distributed generation to customers with distributed generation). transmission, distribution, and end use needed to reduce emissions across the power sector by 80 percent or more by midcentury will require a level of certainty regarding cost recovery that markets along seem unable to provide.").
313. Id. See also NATIONAL RESEARCH COUNCIL, FUNDING A REVOLUTION: GOVERNMENT SUPPORT FOR COMPUTING RESEARCH 1-14 (1999) (describing the wide ranging and fundamental role that federal investment and support played in launching and sustaining the "computer revolution").
Put simply, and at the risk of provoking yet another round in the three-decade long assault on "command-and-control" regulation, it is past time for market enthusiasts to recognize that planning, government mandates, state-directed investment, industrial policy, public works, and prescriptive regulations have a much more critical role to play (and already are playing such a role in some cases) than price-based approaches in driving the clean energy transition and facilitating the deep structural changes in the global agro-food system needed to combat climate change. 314 While these approaches may seem anathema in our neoliberal age and contrary to decades of mainstream thinking in environmental policy circles, given the stakes involved with climate disruption, we no longer have the time or the luxury to debate the finer points and compare the relative efficiencies of a set of tools that were developed in other times and places with other, more manageable problems in mind.
More importantly, whatever the specific mix of policies, it is clear that we need a more robust and expansive state to confront the climate crisis in a meaningful way. Market instruments and appeals to individual behavior may encourage reductions on the margin, but they will not drive the kind of structural change that deep decarbonization requires. 315 Without a strong and capable state able to mobilize across multiple domains, any such effort at deep decarbonization will almost surely fail. In addition to focusing on the many policies and programs that will be necessary to rapidly decarbonize our economies, therefore, we also need to turn our attention back to the state itself and its capacity to drive such change.
314. See, e.g., DAVID G. VICTOR ET AL., ACCELERATING THE LOW CARBON TRANSITION: THE CASE FOR STRONGER, MORE TARGETED AND COORDINATED INTERNATIONAL ACTION 51 (2019) ("Whereas previously it might have been assumed that putting a price on carbon emissions and making them tradeable offered the most efficient way to reduce emissions, it is now increasingly recognised that most progress so far has been achieved through targeted investments in low carbon technologies.").
315. See, e.g., Driesen, Limits of Carbon Pricing, supra note 5, at 117 ("Pricing favours incremental improvements over investments in the most promising technologies for getting to zero emissions across the economy."); Rosenbloom et al., supra note 66, at 8665 ("Addressing the climate challenge . . . involves fundamental changes to existing systems, referred to as 'sustainability transitions.' These transitions entail profound and interdependent adjustments in socio-technical systems that cannot be reduced to a single driver, such as shifts in relative market prices.") It is possible that the current conjuncture provides a once-ina generation opening to rethink the state and its role in responding to complex problems such as climate change. As we confront the economic wreckage of the COVID-19 pandemic and its compounding effects on structural inequality and systemic racism, various governments around the world have embraced the notion of a "green stimulus"-a set of interventions that seeks to rebuild the economy through sustained investment in clean energy and a green economy. The logic of these proposals is obvious: if we are going to spend trillions of dollars rebuilding our economies, why not do so in a manner that accelerates decarbonization and prepares for climate disruption? The convergence of climate and economic policy that these proposals embody represents an encouraging step toward reimagining what a broad-based response to climate change might look like.
But these interventions are also important for another reason. In addition to rebuilding the economy, they could also be critical in rebuilding governments that have been hollowed out, diminished, and distorted by decades of neoliberal policies. This is especially true in countries such as the U.S. and the U.K. that have spent almost half a century outsourcing and privatizing key government functions. 316 Viewed in this way, the climate emergency, together with other crises such as the pandemic and structural inequality, may offer the last best chance we have to remake the state-to recognize that state capacity is a fragile resource that has to be built (and rebuilt) in the process of solving genuine public problems.

V. CONCLUSION
In 1986, Ronald Reagan famously remarked that the nine most terrifying words in the English language are: "I'm from the Government, and I'm here to help." 317 With his cynical dismissal of government, President Reagan tapped into a deep-seated desire to blame someone or something for the malaise of the 1970s. Regulation was an obvious target and over the course of the 1980s, as Reagan vigorously pursued a deregulatory agenda, the very idea that the state could be harnessed to solve complex problems was called into question.
It is no coincidence that market-based instruments such as emissions trading came of age in the 1980s. The "rediscovery of the market" and its increasing abstraction from institutions and politics provided the animating force behind efforts to reform environmental law. 318 Although much of this agenda was framed as an advance over the clunky and inefficient approaches of the 1970s, there was, lurking just below the surface, a severely diminished view of government.
Today, we are in the early stages of a long-term, sustained climate emergency that will last generations. The scale of human suffering that we can expect to witness and the injustices that will be visited upon those who have done nothing to create the problem are staggering. Needless to say, the tools we have developed over the last half century to respond to environmental problems appear wholly inadequate in the face of such an emergency. And yet we continue to recycle many of the same old arguments in favor of a narrow, instrument-based approach that fails to recognize that this is a problem that goes to the heart of the contemporary world order. Environmental law, it seems, has lost its way in confronting the climate crisis.
When it comes to planetary survival, clever arguments about the reciprocal nature of harm or the relative efficiency of marketbased policies seem hollow, even callous. The relentless promotion of markets and competition in virtually every sphere of society over the last half century has left us in an intellectual cul de sac. As with much of our politics, our thinking about climate change often seems trapped in a reflexive skepticism toward the state and a widespread denial of the possibility of any coherent notion of the public interest. While it is obviously too early to tell whether the COVID-19 pandemic will restore our faith in government, not to mention facts and expertise, it is clear that climate politics desperately needs such a change.
It is here that the proponents of the Green New Deal are on to something vital and important. They recognize that any serious response to climate change will require building whole new industries and a massive re-organization of how we live together. In their view, this must be based on bold programs of government intervention on a scale that we have not seen in the United States since the first New Deal. Criticizing them for lacking detailed plans misses their broader normative project of resuscitating a view of government that has been under attack for decades and that has been sidelined in much of the climate policy discussion by narrow, technocratic questions of instrument choice.
While recent announcements by major corporations and the financial sector signal a new awareness of the problem and the possibility of meaningful action by private firms to channel capital and economic activity into less destructive pursuits, this is not a problem that can be solved by private environmental governance. Davos will not save us. Nor will perennial appeals to reduce our individual carbon footprints-appeals that have been pushed by the fossil fuel companies as a way to turn a systemic problem into one of individual responsibility. 319 Inevitably, discussions about major government interventions lead to concerns that we will end up confronting "a new climate leviathan" and the prospect of seemingly permanent states of emergency. 320 No doubt the accelerating impacts of climate disruption bring with them the possibility of more authoritarian forms of government. And there are plenty of signs that the climate crisis will further strain the limited capacity for mercy in many countries, not to mention the ability of democratic institutions to respond.
But this is all the more reason to reframe the climate change challenge as a broad, public problem that requires political mobilization and government action at every level. Rather than doubling down on a half century of neoliberal hostility to regulation, it seems well past time to embrace and, more importantly, to work to realize a view of government as responsive and capable of solving complex public problems. Whether new publics will continue to take shape and be receptive to such a move and whether such openness will in turn translate into real political agency are surely among the most pressing questions confronting climate politics today. But I dare say that many people now facing loss of life, livelihood, and property brought on by climate disruption would no longer agree with Ronald Reagan's gratuitous dismissal of government. The great challenge looming before us is to rebuild our government and restore lost confidence-to make it possible, even likely, that in the coming years the phrase "I'm from the government, and I'm here to help" will be received as welcome words in a world facing unprecedented destruction and loss.