Ethical Emissions Trading and the Law

The idea of permit trading in the United States can be traced as far back as the 1970s, but emissions trading has really only became a popular and exportable idea with the more recent demands that environmental protection acknowledge economic pressures through such ideas as sustainable development. Now the idea of emissions trading has caught on in South America, China and Europe as well. Yet in the eagerness of governments and industry to work out the technical details and legal mechanics of the emissions trading tool, insufficient attention has been paid to its underlying legal and ethical assumptions. In this article, it is emphasized that emissions trading is a part of compliance with environmental law, not a market alternative to compliance. The difference between the two greatly effects and is affected by theories of rights. As part of the scheme of rights and accompanying duties, the author questions whether an implicit right to pollute has been created through emissions trading, as exemplified by the comparison of the systems in the U.S., China and Europe.