Of Climate Justice and Magical Realism

Sonya Ziaja* June, 2026

Climate Justice: What Rich Nations Owe the World—and the Future. By Cass R. Sunstein. Cambridge: MIT Press. 2025. Pp. xx, 127. Hardcover, $29.95; paperback, $24.95.

Fermina Daza and Florentino Ariza remained on the bridge until it was time for lunch. It was served a short while after they passed the town of Calamar on the opposite shore, which just a few years before had celebrated a perpetual fiesta and now was a ruined port with deserted streets. The only creature they saw from the boat was a woman dressed in white, signaling to them with a handkerchief. Fermina Daza could not understand why she was not picked up when she seemed so distressed, but the Captain explained that she was the ghost of a drowned woman whose deceptive signals were intended to lure ships off course into the dangerous whirlpools along the other bank. They passed so close that Fermina Daza saw her in sharp detail in the sunlight, and she had no doubt that she did not exist, but her face seemed familiar.¹

Introduction

In Haruki Murakami’s The City and Its Uncertain Walls, a man and a woman find themselves in a small mountain town, discussing magical realism and a passage from Love in the Time of Cholera, reproduced in the epigraph above.² For Murakami’s characters, magical realism is “real and unreal, the living and the dead . . . all mixed together in one . . . [l]ike that’s an entirely ordinary, everyday thing.”³ The woman suggests that, for García Márquez, magical realism may be just “ordinary realism”: The “real and unreal are equivalent and . . . [he] is simply recording that.”⁴ These sentiments tie the world of Climate Justice: What Rich Nations Owe the World—and the Future to our own.

Cass Sunstein,⁵ within the world of Climate Justice, makes perfect sense. His arguments and policy prescriptions are rigorous, logical, and guided by ethics. These attributes paradoxically give the reader a dizzying sense of unreality. The more reasoned the arguments and the kinder Sunstein is to the reader, the worse the sense of hallucination.

Time has made Climate Justice a book marked by the unreal. The book was conceived of and written in one era and published in another.⁶ The central idea of the book—that wealthy nations owe something to the world and the future—comes from Sunstein’s time in the early days of the Obama Administration (pp. x–xii). Many chapters largely repeat Sunstein’s previously published articles (spanning years 2008–2022). Sunstein applies ethics and morality to the logic behind choosing among climate projects and interventions (choice engines, markets, subsidies, mandates). But we are in an age of unreason, when claims of combatting antisemitism are used by antisemites to destroy universities;⁷ when it is “efficient” to shutter agencies and lay off critical government employees only to rehire them later;⁸ when climate-related data collection is stopped by government, in the name of science;⁹ and when the EPA acts to deregulate greenhouse gas and mercury emissions,¹⁰ because pollution from these sources is not “significant.”¹¹

The world we inhabit haunts the rationality and ethics of Climate Justice, making them seem unreasonable. This is where the observations of Murakami’s characters help. Magical realism brings greater meaning to Sunstein’s Climate Justice in Donald Trump’s second presidential administration. The tension between Climate Justice and our reality points to three missing entities in Sunstein’s world, which in our world could be catalysts to make Sunstein’s vision of ethical climate governance real or shift American government further toward autocracy and corruption.

Below, I present each world before bringing them together. Part I is the world of Climate Justice. Taken together, Sunstein’s arguments present a vision of climate governance in which administrative agencies infuse welfarism in their cost-benefit analyses when choosing among actions and AI-assisted “choice engines” help consumers to make better pro-climate decisions. Part II contrasts that world with our present one—where changes to law, reversals of foreign policy, and dramatic differences in underlying assumptions about “[w]ho owes what to whom” (p. xiii) overturn our prior expectations for government action and consumer behavior. Through that juxtaposition, three ghosts of Climate Justice emerge: individuals, subnational governments, and global oil and gas corporations. This Review argues that the relationship among these three entities is crucial to democracy and climate governance, and indeed necessary for Climate Justice to work.

I. The World of Climate Justice

Sunstein comes down firmly on three points, woven throughout the book. First, utilitarianism and welfare are the ultimate ethical guides for climate change responses (pp. xiv–xv, 26). Second, and no surprise to longtime readers of Sunstein, cost-benefit analysis is the way to decide on a course of action.¹² Cost-benefit analyses conducted with the goal of emissions reduction require decisionmakers to determine a social cost of carbon (ch. 1), an appropriate discount rate (ch. 3), and the value of a statistical life (“VSL”),¹³ with some challenging quantification required for the social cost of carbon and VSL. And third, the application of welfarism to calculating these figures reveals parameters for the abovementioned determinations: There should not be national boundaries on the costs and harms considered (ch. 1); rich nations owe wealth transfer to poor nations (ch. 2); those alive now have an obligation to those in the future, which should lead to a low discount rate (ch. 3); a uniform VSL may or may not benefit poor communities, depending on who bears the cost of regulation (ch. 4). Sunstein’s last two chapters reinforce the importance of welfare to decisionmaking in other climate-related contexts. Chapter Five discusses how decisionmakers should use ethics as a guide when deciding between adaptation options (ch. 5), and Chapter Six considers how AI-supported choice architecture could help consumers maximize welfare while minimizing climatic harm (ch. 6).

Before relating the core arguments of Climate Justice, it is helpful to briefly consider how the book relates to other climate justice scholarship. Climate Justice is, in a way, procedurally prescriptive. It offers a guide for decisionmakers about what considerations they should include in their cost-benefit analyses and algorithms, and what perils/benefits come with each consideration. But the book brackets the choice of exactly which interventions a decisionmaker should implement. In other words, the book is agnostic about whether it is best to quickly develop utility-scale solar or subsidies for neighborhood microgrids with renewable energy components, as studies of deep decarbonization and equity might posit.¹⁴ Climate Justice implicitly assumes there are two kinds of decisionmakers: national governments (including their administrative agencies) and consumers. In this sense, too, it differs from other works in climate justice that focus on participation and procedural justice.¹⁵ Instead, Climate Justice is primarily in dialogue with Eric Posner and David Weisbach’s similarly titled book Climate Change Justice, which argues that an international agreement on climate change should not tackle issues of distributive justice.¹⁶ Sunstein had a significant hand in the arguments of the book but was unable to join as an author while serving in the Obama Administration.¹⁷ Climate Justice offers a principled divergence from Posner and Weisbach, as well as from Sunstein’s own earlier argumentations (p. 130). It nonetheless carries forward priorities and assumptions advanced in Climate Change Justice.

As is the case with many books constructed from prior articles, the underlying arguments of Climate Justice are not consistently part of the book’s organizing structure, and the argument of each chapter does not necessarily directly connect to those of its neighbors. Instead, Sunstein’s three core arguments appear to greater and lesser extents in each of the chapters, which present distinct prescriptions for climate justice decisionmaking within administrative agencies. To give each of these otherwise careful arguments its due, I discuss each below in the order they appear in the book.

A. “Climate Change Cosmopolitanism”

Assuming that a nation like the United States turned its attention and administration to reducing greenhouse gas emissions, what ethics and economics should guide a decisionmaker? Once those questions are answered, what geographic parameters, if any, are appropriate? In other words, “[should] a nation . . . take account of the harms it does to people in other nations when deciding whether to scale back its own greenhouse gas emissions[?]” (p. 1).

Climate Justice argues for “climate change cosmopolitanism”—using a global figure for the social cost of carbon, instead of only considering the costs of climate change on a nation-by-nation basis (also known as the “domestic number”) (pp. 1, 6–7). Four arguments favor using a global figure. The two strongest, according to Sunstein, are the “moral cosmopolitan” argument, which asserts that “foreign lives matter” (pp. 7, 24), and the “reciprocity” argument, which is based on assumptions that other countries would act reciprocally and to the benefit of the United States if we were to adopt a global figure (p. 7). The remaining arguments are the “epistemic” argument, which suggests that climate impacts involve physical geography more than political boundaries and thus arriving at a strictly domestic number might not be possible, and the “interconnectedness” argument that acknowledges the complex ways in which Americans and American interests depend on what happens abroad (pp. 7–8). When considering these two arguments as well, Sunstein recognizes that a solely domestic number would be insufficient, even without considering moral or self-interested grounds (pp. 7–8).

Determining the ethically and empirically proper social cost of carbon is an important input of cost-benefit analyses, and for Sunstein those analyses are sacrosanct.¹⁸ Deriving a proper social cost of carbon requires some moral guideposts, even if those guideposts are politically challenging (p. 26). Moral cosmopolitanism is Sunstein’s guide; reciprocity is the politically acceptable way to arrive at the same global rather than domestic number. Sunstein poses a hypothetical wherein Detroit emits air pollutants that cause illness and death in Canada. Should the U.S. EPA consider the consequences of such American air pollution in Canada when regulating sources of pollution in the United States? (p. 25). Sunstein says yes: “[T]hose are real deaths and illnesses: Why should they be ignored?” (p. 25). Further, even where law does not require agencies to consider harm avoidance outside the United States, “federal agencies should give consideration to that harm” under a moral cosmopolitan outlook (p. 26).

The reciprocity argument is a response to viewing the problem of global climate governance as a “(repeated, wicked) prisoner’s dilemma” which requires cooperation in the form of a binding international agreement (p. 28). Although the unilateral action of one actor in the prisoner’s dilemma does not solve the problem, in the case of the United States and climate change, Climate Justice suggests it may be part of a solution (pp. 28–29). Because the United States “is an international leader,” it can force changes in norms and “incentivize other nations to do the same” (p. 29).

B. Loss and Damage

Climate Justice turns next to the politically vexing questions surrounding the establishment of the global loss and damage fund, in which, theoretically, countries that economically benefitted from fossil fuel emissions share their wealth with some of the poorest and most climate-vulnerable nations on earth. Sunstein concludes that if there were a truly binding international climate agreement, “some nations would have to pay far more than others to reduce their emissions; and . . . some nations are far more vulnerable to [the effects of] climate change than others” (p. 50).

This uneven playing field raises questions of distributive and corrective justice (pp. 50–60). Climate Justice suggests countries like the United States could maximize welfare if they gave money to less wealthy and more climate-sensitive countries. “Because such nations appropriated more than their share of climate resources in the past, they should now use their wealth to help poor countries develop in or cope with a world where climate resources have become limited” (p. 60). In his discussions of distributive and corrective justice, Sunstein notes the awkwardness of applying these principles to countries which contain both wealthy and poor people (p. 51). “[T]he crude state-to-state remediation scheme results in innocents being punished and nonvictims being compensated” (p. 53). Sunstein is more comfortable collectivizing gains and losses from a distributive justice perspective than from that of corrective justice.¹⁹ Worse still, from a corrective justice perspective, it is difficult to hold people alive today culpable for the greenhouse gas emissions of their ancestors. In the end, “rough justice,” which acknowledges the legitimate problems raised by applying distributive and corrective justice to the scale of nations, still supports the idea that “[w]ealthy countries are morally obliged to help poor countries manage climate-related risks,” including compensating for harms as well as mitigating emissions and adapting to climate impacts (p. 61).

C. Discount Rates

Starting from the premise that the “benefits of emissions reductions will be [largely] enjoyed in the future rather than the present,”²⁰ Sunstein then guides the reader through debates over calculating appropriate discount rates²¹ for climate policy. Discount rates, like the social cost of carbon discussed in Chapter 1, are potentially determinative inputs in cost-benefit analyses, and constitute “one of the central ethical issues in evaluating climate change” (p. 63). But whereas the social cost of carbon deals with comparisons across geography, discount rates are about comparisons across time.²²

Sunstein frames the debate about discount rates as one between “ethicists” (pp. 68, 71–76) and “positivists” (pp. 68–71). Ethicists attach great importance to the principle of intergenerational neutrality, treating people in the future the same as they would people alive today (pp. 72, 75–76). Discounting, from this perspective, is unethical because the private rate of return (seen in observed interest rates) does not reflect the social rate of return (seen in benefits from an investment) (pp. 72–73). “[O]bserved interest rates are not a good guide for decisions over very long time periods” because individuals tend to not think that far into the future when making savings decisions (p. 73), and the rate of return on investments itself depends on what significant changes to the economy, if any, are made to address climate change (p. 73). Positivists, meanwhile, are concerned with maximizing existing resources (pp. 68–69, 76). From their perspective, “it is not sensible to invest in any project unless it has a return at least equal to the return available elsewhere.”²³

Climate Justice creatively bridges the gap between the two positions by dividing them (pp. 70–71, 77–83). The fundamental propositions, that intergenerational neutrality should be respected (ethicists), and that projects with rates of return lower than the market rate of return should not be chosen (positivists), are both correct (p. 76). “Project choice and ethical obligations to the future are, to a large extent, separate” (p. 77). In other words, the ethicists are right that we have an obligation to future generations, but that point does not offer how to choose between projects, which should be done in a way that prevents “wast[ing] resources” (pp. 77–78). Discounting, meanwhile, “is simply a method of choosing projects that fulfill our obligation to prevent [harm from climate change to future generations] from happening,” “not a reason for failing to discharge our obligations to the future” (p. 78). In Sunstein’s world, ethicists set the parameters while positivists perform the operations within those parameters.

D. Value of a Statistical Life

Climate Justice covers one more area of quantification necessary for cost-benefit analyses related to climate change: the value of a statistical life (“VSL”) or the “value of a statistical mortality risk” (p. 85). Sunstein is good at calming readers and walking with them through otherwise dry debates about a subject that is innately “unlovable,” if not inflammatory (p. 85). Similar to prior chapters on quantification (chs. 1, 3), which offer Sunstein’s position on what a morally just and proper way to parameterize the calculations is, Sunstein’s goal here is to determine “whether the use of a uniform VSL is good for poor people” or whether its value should vary with wealth (p. 95).

Climate Justice provides guidance on how an administrator should think through whether a VSL tied to wealth or a uniform one is more appropriate. The core problem is, “unsurprising[ly,] . . . poor people are willing to pay less than rich people” (p. 90). This means that relative wealth likely changes the outcome of contingent valuation studies used to determine VSL.²⁴ In other words, if someone who makes less than minimum wage is asked how much they are willing to spend (whether for ice cream, or healthcare, or living in a healthy climate), their answer is going to be a smaller amount than someone who makes $100,000 a year. So, when economists try to determine VSL through asking how much someone is willing to pay, their answer will likely depend on the relative wealth of the community in question. What’s the ethical thing to do, then? It depends (pp. 90–91). If the intervention is a subsidy, then a worldwide average VSL would maximize welfare by distributing resources in response to that VSL (pp. 91–92). If it is a regulation, then the impact is determined by who pays, and who benefits (pp. 91, 92–94). If poor people “do not pay all or most of the cost,” a uniform VSL is beneficial, since those better positioned to pay are shouldering the cost. If not, then a VSL tied to wealth is more appropriate (pp. 91, 92–94, 96). Generally,

[i]f a policy makes life a great deal better for a large number of poor people, and a tiny bit worse for a small number of rich people, it would seem to be an excellent idea. If a policy makes life a tiny bit better for a small number of poor people, and a great deal worse for a large number of rich people, it would not seem to be an excellent idea. (pp. 95–96)

Evidently, the details matter a great deal in determining which of those statements apply (pp. 91, 96).

E. Adaptation

After closing out his examination of the ethics of greenhouse gas reduction decisionmaking, Sunstein addresses how a decisionmaker should approach choosing between climate adaptation²⁵ policies. Tools to encourage adaptation might include incentives, regulation, or “nudging,” including information disclosure and choice architecture (p. 99).

Climate Justice adds three nuances to the ground already covered. First, valuation of climate adaptation benefits in rich versus poor communities will require considering more data points beyond just median home values (and thus how much homeowners save when adaptations protect their homes from natural disasters) to measure welfare benefits. This is because both rich and poor communities receive the same welfare (e.g., minimizing or preventing risk from occurring) (pp. 101–02). Second, prioritarianism recommends focusing efforts to the least well-off rather than the wealthy (p. 102), though “prioritarianism might misfire if its use ends up having harmful aggregate effects . . . .” (p. 103). Finally, very low probability risks and uncertainty can leave communities in the lurch (pp. 97–104). Decisionmakers may want to act to prevent a spectacularly bad event from occurring, but they “might want to hesitate” if doing so is expensive (p. 104). Sunstein offers “two essential steps” to this problem, at least for near-term climate risks (p. 104). The first is giving communities “clarity about the risks they face and how to combat them” (p. 104). He gives the U.S. Government website as an example.²⁶ The second is giving communities “the resources they need, alongside technical assistance”; he offers the Consider Building Resilient Infrastructure and Communities program out of the U.S. Federal Emergency Management Agency as an example (p. 104).

F. Consumers and Choice Engines

In Climate Justice, there are two kinds of actors able to influence climate change mitigation and adaptation: nations and consumers.²⁷ Chapter Six is devoted to the relationship between the two—specifically, what governments could do to help consumers get over their biases and limited rationality and make pro-climate consumer choices that improve their overall welfare gains. This focus springs from Sunstein’s belief that “[c]limate change is in large part a product of consumer choices . . . .”²⁸ A one-size-fits-all solution lacks the flexibility needed to account for an intervention’s varying hedonic and distributional effects on heterogeneous populations (p. 106). Sunstein’s solution is to turn to “choice engines,” algorithmically backed choice architecture, to help give necessary information to consumers in a way that is salient and tailored to them while nudging them toward choices they might otherwise have been blind to (pp. 107–09).

There are more ethical issues related to this solution than Sunstein has pages for, but he touches on several and again patiently walks the reader through some thorny issues. Choice engines may be “paternalistic,” but that is untroublesome so long as “freedom of choice” is preserved (p. 110). More importantly for Sunstein, choice engines could be a method of introducing the social cost of carbon, appropriate discount rates, externalities, and consumer welfare directly into marketplace transactions (pp. 110–21). Doing so would bypass our very human and anti-welfare tendencies toward impatience (pp. 111–12), present bias (pp. 116–19), and imperfect information (pp. 110, 115) to address Sunstein’s dual concern about climate change and consumer welfare (p. 122). Choice engines’ weaknesses come from the inherent problems with artificial intelligence. They may be exploited and harm consumers, be too coarse in resolution to be useful at smaller scales, or lack sufficient inputs as tastes and values change and may include their own behavior biases (p. 122). “[A]t a minimum, it makes sense to scrutinize all forms of choice architecture for deception and manipulation, broadly understood” (p. 123).

In sum, the chapters of Climate Justice provide a map of the thorny ethical concerns in climate governance decisionmaking, with some directions out of the woods too. Sunstein argues that moral cosmopolitanism and domestic self-interest (as seen in the reciprocity argument) require nations to use a global figure for the social cost of carbon, and welfare requires “a degree of redistribution from wealthy nations to poor nations” (p. 125). Additionally, even though distributive and corrective justice are not necessarily well suited to deal with climate wrongs, he proposes keeping these concepts at hand: “Rough justice is still justice” (p. 126). The book also discusses how “[n]ations should follow a principle of intergenerational neutrality,” (p. 126), which should inform discount rates. Sunstein explains that VSL calculations should take into consideration the “willingness to pay” decisions of “informed people, free from behavioral biases” (p. 126), to avoid risk and that VSL calculations for subsidies should be different from those for regulation. Furthermore, climate adaptation strategies should include providing information, technical assistance, and/or funding. Finally, consumer choices “in large part” drive climate change, so choice engines can be used to help nudge consumers toward pro-climate choices (p. 127). The multiple conclusions of these chapters may not flow neatly from one to the next, but they are unified by Sunstein’s three core points: Welfarism and utilitarianism provide ethical guides to climate governance; governments must use cost-benefit analyses, which require quantification, to choose paths toward climate mitigation and adaptation; and the application of ethical guides to the math behind cost-benefit analyses provides parameters for decisionmakers. As Sunstein puts it, “[N]o one should underrate the importance of ethical judgments, which provide the background against which public officials and negotiators do their work. Those judgements are sometimes a cloud, but they can also be a shining star” (p. 127).

The conclusions of Climate Justice are all built on the same beliefs about the workings of climate governance and government. These characteristics come through when we juxtapose the world of Climate Justice to our own.

II. The “Other” Reality

We are in a dramatically different world from the one that undergirds the arguments of Climate Justice. It is difficult to imagine even the term “moral cosmopolitanism”—central to Sunstein’s argument—going over well with the new right. And, with its focus on cost-benefit analyses of multiple federal agencies in promoting new policies and regulations, the book certainly was not written for the benefit of those actively working to destroy the administrative state. But it is necessary to bring our reality into focus for two reasons. First, I believe that the pragmatism of Climate Justice demands it.²⁹ Second, bringing the two worlds together allows us to see some ghosts of Sunstein’s making—what was left out of Climate Justice, which may be vital in bringing its reality to life in our world. Part II first addresses the present, by discussing just some of the cataclysmic changes to American governance³⁰ that bear directly on the world of Climate Justice. It then turns toward the future, identifying what we can learn from bringing these two worlds together.

A. Our Present

There are three nested categories of changes to American governance that, to put it mildly, lead to some friction with arguments presented in Climate Justice. The first category is direct changes to agency actions and policy through executive orders regarding climate change. These bear on the arguments for moral cosmopolitanism, the social cost of carbon, and working toward reduction of greenhouse gases and climate adaptation more generally. The second category is changes in foreign policy and aid funding. These undercut Sunstein’s foundational assumptions for his reciprocity arguments in favor of moral cosmopolitanism and what wealthy nations owe poorer ones. Finally, the third and broadest category concerns what the present administration appears to believe it owes to whom. These changes put pressure on the fundamental premise of Climate Justice.³¹

Among the many executive orders issued on January 20, 2025, “Unleashing American Energy”³² brings some of the greatest impediments to the arguments of Climate Justice. Contrary to the idea of moral cosmopolitanism, it requires “that the global effects of a rule, regulation, or action shall, whenever evaluated, be reported separately from its domestic costs and benefits.”³³ Equally troubling for Sunstein’s recommendations on the social cost of carbon, the executive order disbands the Interagency Working Group on the Social Cost of Greenhouse Gases (IWG) and withdraws the group’s guidance along with any calculation of the social cost of carbon relying on the IWG’s work,³⁴ and it directs the EPA to consider and issue policy guidance related to the elimination of any consideration of the social cost of carbon in federal permitting and regulation.³⁵ Additionally, the executive order revokes a dozen previous executive orders related to climate change, energy, and equity;³⁶ directs agency heads to review and halt agency actions that “impose an undue burden” on the expansion, extraction, and use of fossil fuels;³⁷ and instructs the attorney general to halt litigation that harms the fossil fuel industry “as appropriate.”³⁸ Later changes to agency funding and grants likewise conflict with Sunstein’s recommendations for climate adaptation. In April of 2025, FEMA abruptly ended the BRIC program³⁹ that Climate Justice highlights as an essential part of climate adaptation (p. 104).

America’s place in the world has also changed. On its first day in power, the Trump Administration began the process of withdrawing from the Paris Agreement on Climate Change (COP 21)⁴⁰ and the World Health Organization.⁴¹ Within the first few months of 2025, the United States cut grants and funding through U.S.A.I.D., issued a stop-work order for development assistance, and put staff on leave and began the process of firing government employees en masse.⁴² The current world order created by the Trump Administration’s action is antagonistic to the distributive justice arguments offered in Climate Justice, even if “climate” itself were not a censored word.⁴³ The shift in America’s place in the world also undermines the potential for a (self-interested, reciprocity-based) argument for moral cosmopolitanism in Climate Justice. Sunstein’s argument is that the United States could help solve the prisoner’s dilemma problem to the benefit of everyone by adopting a global figure for the social cost of carbon, because the United States is respected among nations in a way that encourages emulation.⁴⁴ That “soft power” no longer has currency.⁴⁵

Finally, assumptions about who is owed what by the government appear to be changing. Climate Justice argues that the government owes quite a bit to its citizens (p. xvii, chs. 1, 5) and believes that government should work to help maximize not only the welfare of its citizens but the welfare of people in other countries too (chs. 1–2). Moreover, government should consider the welfare of future people when making decisions (chs. 3–4) and assist individuals in doing the same (ch. 6). What we are currently experiencing, however, evinces a transformed vision of government. Rather than protect health through air quality standards, the U.S. EPA established a new email request line for fossil fuel energy generation and other stationary sources to request a “presidential exemption” to the Clean Air Act.⁴⁶ The president’s replacement of Air Force One with a “palace in the sky” gift from Qatar⁴⁷ and the Trump family’s use of cryptocurrency⁴⁸ could be seen as manifestations of the same change in calculations of who is owed what.

In the shadow of such fundamental changes to the U.S. federal government and its position in the world, the strongest arguments Sunstein proposes in Climate Justice now seem the most implausible. What might be a morally appropriate way for a government to calculate the costs of something the same government denies exists seems an absurd question. Context matters. Sunstein’s arguments are built around beliefs that climate change is not good for people, that America holds a special place in world affairs, and that government—by definition rather than transaction—has an obligation to people in the present and in the future. In the context of a radically changed government, those beliefs have a hard time finding purchase in the real world.

B. The World of Ghosts and a Path to the Future

Our reality makes Climate Justice read like fiction. But it need not be. The tension between the two worlds allows us to see some ghosts of Sunstein’s making, who and what is left out of Climate Justice. Specifically, there are three kinds of actors in our world that are largely left out of the book: individuals, subnational actors, and global oil and gas corporations. Their importance to climate governance and democracy is highlighted by the new world we find ourselves in. In Climate Justice, these entities are subjects of government. In reality, they are also participants in governance—a dynamic demonstrated by attempts to subvert the power of the first two and to give power and favor to the third. How these three interact and what rules apply to them are crucial factors in building the kind of ethical and robust democracy that undergirds Climate Justice.⁴⁹

1. Individuals

Where are all the people—the citizens and residents with lives and social relationships that inhabit the world of Climate Justice? The book argues that government owes something to people, but people are limited to roles as consumers;⁵⁰ these consumers are fallible but not malign (ch. 6). They are just in need of a nudge from their better-informed and benevolent government (ch. 6). Consumers make atomistic decisions that can be aggregated. This is what concerns Sunstein, in that they make “bad” decisions for themselves and others. By contrast, individuals have a wonderful capacity to engage in collective action.⁵¹ They are prepolitical⁵² and political actors as well as beneficiaries of government. In these forms, which are missing from Sunstein’s telling, human beings have more power over climate change than just their purchasing decisions (though those may be worth examining). Though people are absent from the book as living participants in governance, their ghosts toil away to make Climate Justice seem like it might work. Regulation and administrative agency action cannot happen without administrative agency staff. Lawsuits and legal scholarship that change the direction of policy cannot happen without lawyers and legal academics. And the informed cost-benefit analyses envisioned by Sunstein cannot happen without the underlying research and scholarship of scientists and economists.

There are some people whose jobs are needed for the gears of accountable government to work. Those of us who are not politicians, judges, or senior members of the administrative state are nonetheless participants in political processes and governance choices at multiple scales. Whether through voting, town hall meetings, organizational membership, unions, or everyday activities, people exert pressure on political processes and collectively establish norms, preferences, and ways of understanding the world.⁵³ People also have the ability to inform regulatory processes through, among other meaningful ways to participate, notice and comment.⁵⁴ Pro-democracy and pro-environment civil society organizations work to harness these attributes, while entities working against those interests try to impair them.⁵⁵

Václav Havel, in his essay The Power of the Powerless, noted that when individuals act in accordance with a culture of fear, they give power to the tyrannical regime instead of retaining the political power needed to have an accountable government that acts as though it has a duty to people today and in the future.⁵⁶ Spreading fear makes it harder for individuals to organize and exercise collective action against tyranny.⁵⁷ There are too many contemporary examples of this tactic to cover in this Review. A few, however, bear directly on the world of Climate Justice. Consider, for example, the statements of Office of Management and Budget Director Russell Vought about plans to harass administrative agency staff:

When [agency staff] wake up in the morning, we want them to not want to go to work because they are increasingly viewed as the villains. We want their funding to be shut down so that the EPA can’t do all of the rules against our energy industry because they have no bandwidth financially to do so. . . . We want to put them in trauma.⁵⁸

Climate justice scholarship has long recognized the power of civic participation in governance and has consistently proposed meaningful changes to how people are able to access information and participate in decisionmaking.⁶⁸ Two seminal papers synthesize a diverse literature on climate justice. In one such paper, David Schlosberg and Lisette Collins describe three broad categories of climate justice concepts: “ideal theories from the academic community, a fairly elite NGO perspective on policy, and grassroots movement perspectives.”⁶⁹ This last category borrows heavily from the American environmental justice movement, in which procedural justice and inclusion in decisionmaking are essential.⁷⁰ In a different paper nearly a decade later, Peter Newell and his coauthors forcefully argued that climate justice must consider the role of power in social and institutional relations that create climate governance.⁷¹ Procedural climate justice that “includes access to information and meaningful participation in decision-making and the existence of legal procedures for achieving redress” is one of the key pillars to a synthesized conception of climate justice.⁷² In turn, these scholars’ perception of climate justice requires “deepening democratic and citizen engagement over pathways for tackling climate change.”⁷³ One wonders what additional insights Climate Justice could have if it looked to partnership in democracy instead of paternalism and rendered individuals as living actors instead of ghosts.

2. Subnational Governments

What is the role of subnational governments in climate governance? In democracy? Subnational governments, like individuals, are apparitions in Climate Justice. Yet, in our world, some of the most creative and determined changes to law and policy in support of climate mitigation and adaptation have happened at the local, state, and regional levels. “In the context of the United States of America, any in-depth analysis of climate change policy-making reveals a complicated picture of pushes and pulls—of stagnation and resistance to change at the top [national level] meeting innovation and pressure for progress from below.”⁷⁴ And where Climate Justice suggests that unilateral action by the United States might help solve the collective problem of climate change (p. 29), it is subnational actors engaging in unilateral measures that are inspiring further climate action.⁷⁵

As with the power of individuals, the creative force of subnational efforts to curb climate change is under attack. The lack of federal grants and partnerships weakens the capacity of state and local governments to deal with climate risks and encourage climate change mitigation.⁷⁶ The Trump Administration is also wielding litigation against states to limit their power to act on climate change. The U.S. Department of Justice sued the states of Hawaiʻi and Michigan to prevent those states’ own litigation efforts against fossil fuel companies for deceiving the public about climate change and related harms.⁷⁷ The Trump Administration also filed lawsuits against New York and Vermont, challenging the constitutionality of state law requiring oil companies to contribute to climate damage funds.⁷⁸ If subnational governments were as absent in reality as they are in Climate Justice, why bother with such frontal attacks?⁷⁹

3. Global Oil and Gas Corporations

What power is given to the fossil fuel industry? In the world of Climate Justice, corporations are shadows of themselves, nearly nonexistent as actors, absent from politics; in that world, consumer choices nudges or regulation can act upon them (ch. 6), but their own agency and responsibility is rarely acknowledged. There are fleeting moments in the book when Sunstein grants that corporations may be culpable for injuries related to climate change.⁸⁰ But he socializes responsibility and remediation at the national scale. “[T]he moral cosmopolitanism argument is that foreign lives matter, certainly insofar as U.S. actors are adversely affecting them” (p. 24; emphasis added). The solution is for the U.S. government to use a global figure for the social cost of carbon (ch. 1).

The fossil fuel industry cannot be reasonably simplified to one that just creates carbon widgets that consumers purchase to power their cars, heat, cooling, and so forth. Oil and gas corporations also control the flow of climate information (and disinformation), generating narratives that undermine the litigation and activism of individuals and governments.⁸¹ The research findings of Naomi Oreskes and Geoffrey Supran regarding the longstanding practices of Exxon, Mobil, and ExxonMobil Corp show that their internal research departments knew about climate change while the corporations simultaneously worked to promote public doubt through propaganda.⁸² Oreskes and Supran also uncovered how ExxonMobil used framing to deflect responsibility for causing anthropogenic global warming to consumers.⁸³ In the megacorporation’s framing, “[f]ossil fuel companies are passive suppliers responding to consumer energy demand,” and “[c]ustomers are to blame for demanding fossil fuels, whose ‘risk(s)’ were common knowledge. Customers knowingly chose to value the benefits of fossil fuels above their risks.”⁸⁴ Other global oil companies and industry associations like the American Petroleum Institute have used similar strategies.⁸⁵ Notably, it was the fossil fuel industry and its consultants, not climate activists, who developed and encouraged the use of individual carbon footprint calculators to shift the blame and substitute collective action for atomistic individual action.⁸⁶ For Big Oil, obscurity is power.

In addition to their climate denialism and blame-shifting strategies, fossil fuel companies have acted in ways that undercut democracy and collective action. At the national and international scale, fossil fuel companies have created a “chilling effect” preventing climate action by threatening to “sue countries for billions” in international arbitration tribunals like the Investor-State Dispute Settlement.⁸⁷ While at individual and collective scales, the oil industry and surrogates have used the Freedom of Information Act to harass, delegitimize, and derail the work of scientists and academics.⁸⁸

Climate Justice assumes that global oil and gas corporations are regulated entities, rather than ruling ones. By contrast, the Trump Administration acts as though the fossil fuel industry is a source of power (or at least money) with the ability to influence political and regulatory outcomes.⁸⁹ By remaining invisible, the industry is empowered. The work of individuals, organizations, and states to shed light on the actions of the fossil fuel industry, and of states to hold these entities responsible through litigation,⁹⁰ is critical to the benevolent climate future Climate Justice imagines.

Conclusion

On its own terms, Climate Justice offers a program to include ethics in climate governance and promote distributional justice: Include welfare considerations for people both beyond the national borders and in the future in cost-benefit analyses by calibrating the social cost of carbon, a proper value of a statistical life, and a discount rate; and help consumers get over their biases. While wise minds may find room for departure⁹¹ from Sunstein’s conclusions (p. 130), such otherwise reasonable arguments should remind us of García Márquez’s ephemeral white handkerchief, tempting our ship with a familiar face toward real and dangerous whirlpools. They lead us toward obscurity; the present requires attention to what is in front of us.

We need to bring our changed reality to that of Climate Justice. Doing so allows us to see invisible elements of the world of Climate Justice that are needed in our own—people acting individually and collectively, beyond their identities as consumers; states and local governments taking action on climate change, promoting the rule of law, and holding national governments and corporations accountable; and global oil companies, which must be kept in focus for their role in continued greenhouse gas emissions, propagandizing, and seeking favor through money in political and lawmaking processes.

The measured prose and familiar rectitude of expertise throughout Climate Justice may lull a reader into thinking of it as an artifact of a bygone time. Or perhaps as something more useful to store away, in case one day soon American government returns to its prior form. Climate Justice offers these paths to the reader. But there is danger in letting the book be stored away, whether for the past or the future. In change, Climate Justice gives something greater. “Truth is not found in fixed stillness, but in ceaseless change and movement.”⁹² Attending to the movement of ghosts in Climate Justice, the real and unreal of its world together with ours, offers a warning and an important truth. Significant climate action depends on democracy and the rule of law. Without a duty both to people alive today and to future generations, there is no hope for climate action. A functioning democracy and adherence to the rule of law is needed for meaningful progress on climate change. Achieving climate justice depends on the action and capacity of individuals and subnational governments and their influence relative to that of the fossil fuel industry.

* Assistant Professor of Law, University of Baltimore School of Law, and Research Affiliate, CEU Democracy Institute. I am grateful to Alyse Bertenthal, Tracy Hester, and Karrigan Börk for their feedback on this review, as well as to Andrew Ziaja (a real Murakami fan) and the exceptional work of Sabriya Imami, Lila Nazarian, Emi Owens, Taite Puhala, Edward Madrigal, Sophia Grant, and Jude Goossens at the Michigan Law Review.