The Craft of Tailoring the Law

Progress is driven by innovation, yet at times, innovation is slowed down by laws. For example, the law on the treatment of waste prescribes in detail how waste is to be treated. Biogenic waste, for example, may only be fermented, not incinerated. However, what if a new process was developed that made a different kind of use seem more appropriate? 

It is certain that the law was drafted with the greatest care and using the knowledge available at the time. Today, however, with the new technological possibilities, the law that was written at the time to promote a meaningful use, turns into the opposite and becomes a brake on innovation.

When drafting or modifying laws, we must therefore always ask ourselves how a law should be designed to allow and even encourage innovation.

In our view, it makes sense to start from a liberal perspective. This starts from a benefit/harm analysis. Whenever the action of a company or an individual leads to damage to the environment, there is a cost to society because society must repair the damage to the environment. The general public thus bears the costs, while the person causing the damage receives the profit from his activity.

This can be observed in the climate crisis very clearly: CO₂ emissions cause the climate crisis – yet they do not carry the cost resulting from climate change. Therefore, claiming these costs is the best way to realize the climate-friendly society. However, time is pressing and we must also resort to other legal means to accelerate the transition such as limit values. These two means are optimal because they work independent of technology.

For instance, we prescribe how many greenhouse gases may be emitted for the construction and operation of buildings, lowering this limit value reliably and over a period of years. This results in a predictable framework for the economy and also the possibility of finding new solutions through targeted innovation. This modus operandi applies then to all areas of the construction business and companies have the possibility to choose the best solutions themselves.

However, a contrasting scenario unfolds when exact solutions are prescribed – take a specific concrete that emits less CO₂ as an example. If a new concrete comes onto the market that is even better, the law must be changed again.  

If a new technology is discovered that uses less concrete but can only be implemented using the emission-heavy concrete, the law turns into a brake on innovation.

Bans should therefore only be used with great restraint.

Just as important, however, is the speed at which a change in the law can take place. As experience has taught us, it is best to demand changes as part of the ordinary process of revising a law. An individual parliamentarian can make a request for change at any time. However, it is likely that such a request will get stuck in the mills of the process. It is quite different when modifications are introduced as part of a revision process. In Switzerland, for example, the Environmental Protection Act is currently being revised. In this law, the introduction of the above-mentioned limit value for CO₂ emissions is also currently being discussed. If this is successful, it will open up a window of opportunity for new, climate-friendly technologies.

In the intricate interplay between innovation and legislation, a delicate equilibrium emerges, urging us to sculpt laws that facilitate rather than obstruct progress. As we traverse the terrain of environmental stewardship and technological advancement, it becomes evident that the ideal path lies in laws rooted in liberal principles, harnessing societal costs for environmental damage while embracing adaptable limit values. This harmonious blend, nurtured through thoughtful revisions and a mindful balance between prescription and flexibility, holds the potential to unlock a future where innovation thrives within the embrace of well-crafted laws.