CLASS 13: INTRO TO CLIMATE REGIME

P. Brian FisherCofC: POLS 405Spring 2011

“Our Common Future”

“The environment is where we live; and development is what we all do in attempting to improve our lot in that abode. The two are inseparable….Many of the development paths of the industrialized nations are clearly unsustainable. And the development decisions of these countries, because of their great economic and political power, will have a profound effect on the ability of all peoples to sustain human progress for generations.”

Brundlant Commission, 1987

CONTEXT FOR GLOBAL ENVIRONMENTAL PROBLEMS

Part I

United Nations

Successor to the League of Nations after WWII Complex and binding array of international

organizations Promote a variety of shared objectives: peace &

security, health & education, development, trade, human rts, and environmental protection.

UNEP: UN Environmental Program (1972): assists developing countries to implement environmentally-sound policies and encourage sustainable development.

GEF: Global Environment Facility (1991): designed to help developing countries to finance global environ projects and funded by richer donor countries

‘sovereignty’

Sovereignty: right to govern own territory or geographic or cultural boundaries (i.e. usually the ‘nation-state’)

In the international legal order, states are:1. Sovereign and equal (rights and duties)2. Prima facie, therefore, each state has

exclusive jurisdiction over its own territory and natural resources within it.

3. States then have a duty of non intervention

State Sovereignty (problem or solution?)

Sovereignty: the right of the state government to exercise discretionary power over its territory

Treaty of Westphalia (1648) Principle Rt of self-determination w/in territory Principle Equality b/w states Nonintervention Resulted in “power balancing”

Provides the basis for int’l politics and international law (both enshrine this norm)

‘Tragedy of the Commons’ Def’n: areas beyond the sovereignty of any nation which

produces a conflict b/w individual and the common good over resources and protecting spaces.

Problem of ‘collective action’: Rational self-interested individuals or Nations will not act to achieve their common or group interests. Thus, those with more resources will carry the load, while others forced or by choice ‘freeride’.

EXs/ Oceans, subsoil, atmosphere, outer space, Antarctic

‘Tragedy’: It’s rational to use, which leads to exploitation, of these areas without reciprocation or regeneration Positive : the herder receives all of the proceeds from each

additional animal Negative : the pasture is slightly degraded by each add’l animal

3 Elementary Changes in System

1. Complexity: Industrialization (enhanced by globalization), environmental problems have grown in scale & intensity and therefore complexity—local problems became global (McNeil, 4)-humans prioritize economic values and conceptions of ‘progress’

(entertained from ‘Enlightenment’) are commonly accepted as agents for fundamentally altering Earth’s biosystems.

2. Global North/South: the political system has transformed from the dissolution of colonial empires to a tripling of the number of independent states since WW II, which remains bound legal sovereignty, and of which the planet is generally split into two economic factions: North and South.

3. GCS: the nascent emergence of global civil society offers a new ‘voice’ for burgeoning global community and its interests. * civil society is the sphere of social, economic and cultural life that takes place above the individual but below the state.

Addressing the Problem Global in Scale

In contrast to norm of sovereignty and fragmented political system, is the interconnected biophysical system (e.g. climate, oceans, ozone). GCC problem emerges out of a fractured global political system’s attempt to regulate an interconnected biophysical environment.

“We live in world fragmented by political divisions of sovereign states,” but “reassembled by pervasive flows of people, goods, money, ideas, images, and technology across borders.”

Emergence of Global Governance

Governance is the many ways individuals and institutions, public and private, manage their common affairs…it includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest.

Global Governance: primarily governmental relationships, but now includes NGOs, citizens’ movements, MNCs, and the global capital mkt. Interacting with these are global mass media (controlled by whom?)

Regime: set of rules, cultural or social norms, etc. that regulate a specific operation within a vertical sphere (e.g. climate, human rights, nonproliferation) and its interactions with society at multiple levels.

Legal Regimes for the Environment

Regimes for addressing global-scale environmental problems have had largely been based in law (international law)

This includes IEL, soft law, and nonbinding int’l policy declarations

HISTORY OF IEL/GLOBAL ENVIRONMENTAL GOVERNANCE

Part II

Historical Continuum of IEL

1972, Stockholm Conference on the Human Environment (differences b/w GS and GN)

1982, UN Convention on the Law of the Sea (UNCLOS) (1994)—strongest environ agreement

1992, Earth Summit, UN Conference on Environment and Development World (based on Brundtland Commission or WCED, 1983), Rio Created paradigm upon which IEL has since been based:

SD

2002, Summit on Sustainable Development (WSSD), Jo’burg

1972, Stockholm Conference on the Human Environment

Serves as Foundation for IEL b/c:1. Biosphere and planet were identified

as objects necessitating protection (1st time)

2. Widely attended (114 or 131 UN states)

3. Creation of the UNEP—the 1st int’l organization with an exclusively environmental mandate

4. Stockholm Declaration, outlining duties and responsibilities of citizens/states

Stockholm Declaration, 1972

Core of Declaration is based on assumptions: “(1) man has acquired the power to transform his

environment in countless ways and on an unprecedented scale…

(3) We see around us growing evidence of man-made harm in many regions of the earth…

(4) In the developing countries most of the environmental problems are caused by under-development …In the industrialized countries, environmental problems are generally related to industrialization and technological development…

(7) Local and national governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions.”

Central Environ Issues from Stockholm

Is global pollution problem of poverty or affluence?

Can development or ‘growth’ operate as complement to environmental protection?

Whose responsible, and who should shoulder this responsibility via North/South?

Does national “sovereignty” help or hinder global efforts on environmental issues?

World Charter for Nature, 1982

Goal: set forth “principles of conservation by which all human conduct affecting nature is to be guided and judged”—symbolic expression

Non-binding, differs from Stockholm in substance and form—an ecological instrument

Biocentric—protection of nature as end itself Strongly supported by GS (developing

countries) which differs from Stockholm Many treaties thereafter incorporated its

ethical components

UNCED, Rio 1992 (Earth Summit)

Four Institutional Results

1. Rio Declaration2. Agenda 21 (Non-binding Action Plan)3. Nonbinding Stmt of Principles for

Global Consensus on Management, Conservation and SD of Forests

4. Ceremonial signing of UNFCCC and CBD Conventions

Rio Declaration

Replaced the “Earth Charter”

“Set a dubious foundation for IEL (reversing many ideas in Stockholm)”

Some scholars even suggested Rio undermined the autonomy of IEL and its future application

Built on compromises between EP (environ protection) and economic development

More specific than Stockholm, but controversial

Key Principles of Rio

Principle 1: Reflects an anthropocentric approach to environment– “human beings are at the center of concerns for SD”—no rt to clean environ

Principle 2: Nascent rt to wholesome environment replaced by rt to development

Duty not to cause TB harm (Principle 21) was weakened by Principle 2 allowing states to “exploit their own natural resources pursuant to their environ and develop policies” (CBD follows 21)

Principle 3&4: Reformulation of obligation to conserve (for future generations) changed to right to consume and develop (3) GS; while 4 states that EP shall constitute an integral part of the development process “not isolated from it” (GN)

Principle 13: “States shall develop national law regarding liability and compensation for victims of pollution and other environ damage” (Nat’l juris; indiv rts)

Effects of Rio

Balances EP v. Development, or does rt to development weakens environmental concerns?

First compromise between GN and GS

But does it diminish the imperative of SD

Enshrines distinct principles of IEL

Helps to move IEL from normative features to techniques of implementation

‘Earth Charter’, 2000 Idea generated from the Brundtland Report, 1987,

and bounced around until reformed from 1997-2000. Still not adopted by UN.

Includes principles of: respect for earth and its diversity, democracy and full participation, future generations, preventative harm, precautionary principle, human rights, eradicate poverty, equitable development, education, justice, and nonviolence.

Resistance from religious right in US as being secular guide to planetary relations.

WSSD (World Summit on Sustainable Development), 2002, Jo’burg Goals

1. Halve by 2015, people w/o basic sanitation

2. By 2020, minimize chemical effects3. Restock fisheries by 20154. By 2010, significant reduction in

biodiversity loss (which requires financial and technical resources to GS)

WSSD Focal Points

Clean water and sanitation Access to energy services to 2 billion Reversing agriculture from

desertification Protect BD and restock fisheries Protecting human health from chemic

toxins

WSSD Problems

Plan of Implementation silent on follow-up mechanisms

No fresh contributions Fading recognition of Precautionary

Principle (strongly estab at Rio) Almost made environ treaties

subservient to WTO rules Growing doubt (GS) that treaty system

works (lacks accountability and credibility)

WSSD Outcomes

Increasing role for NGOs and nonstate actors

Increasing partnerships among diversified groups

Specific targets guided by specific goals

Galvanized like-minded countries on climate change and BD loss

Ironically, more willing to discuss economic/social pillars of SD than environ

Outcomes from WSSD

Global N v. S—have arrived at a sense of understanding that environment and development are connected

Environmentalism v. Environment--where environmentalism may not be enough to combat environ harm, b/c 9/11 US has disengaged on environ issues Environ agrs trumped by trade agrs Little support for environ orgs and instits

Future SD: great vision, untenable policy? Too much on environmentalism’s plate? Most effective when aligned with main engines of environ

degradation: unmindful affluence, pop growth, inappropriate technology, and ideological worldview

The Future? Earth Summit 2012 Rio + 20 or Earth Summit 2012: Rio

Objectives of the Summit are: to secure renewed political commitment to sustainable

development; To assess progress toward internationally agreed goals on

SD; Address new & emerging challenges

2 specific themes: A green economy in the context of poverty eradication & SD An institutional framework for SD

CURRENT GOVERNANCE OF CLIMATE

Part III

UNFCCC

United Nations Framework Convention on CC

Int’l environmental treaty produced at the United Nations Conference on Environment and Development (UNCED) or Earth Summit, held in Rio de Janeiro June 1992

Designed to stabilize GHG emissions

UNFCCC, Article 2

“The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

Kyoto Protocol (entered into force Feb 15, 2005)

Cap and Trade System: cap overall emissions through market incentives

Developed Countries (Annex 1 & 2) to reduce GHG emissions to ~5% below 1990 levels, between 2008 and 2012.

Each country has own emissions target (EU 8%; US 7%; Jap 6%; Russia 0%; Norway +1%; Australia +8%)

Expires in 2012 (Copenhagen is COP 15, setting the table for new agr) See http://en.cop15.dk/

‘Flexibility Mechanisms’ of KP (ways to reach emissions targets) Joint implementation (JI) (within developed countries)

States can work together to meet objectives Problem: not changing behavior at home

Clean Development Mechanisms (CDM) between developed and developing E.g. using rainforest as sink in developing country (no development in RF for

economic benefit) Emissions Trading (ET)

Copenhagen Accord Non binding agreement signed between major GHG emitters in Dec

2009 in Copenhagen

UN has renounced the document (based on pressure from the developing countries)

Goal: recognizes "the scientific view that the increase in global temperature should be below 2°C", in a context of sustainable development, to combat climate change.

Mitigation: developed countries (Annex I Parties) would "commit to economy-wide emissions targets for 2020" to be submitted by 31 January 2010 and agrees that these Parties to the Kyoto Protocol would strengthen their existing targets.

Adaptation: Agrees a "goal" for the world to raise $100 billion per year by 2020, from "a wide variety of sources", to help developing countries cut carbon emissions (mitigation).

Climate Policy at ALL scales New US election cycle not much mvmt on climate and Obama has removed the

climate bill

Cap and Trade: Place caps on national GHG emissions and actors/industry/corps have to buy permits to produce certain amt of GHGs. If they go over they have to trade with actors under their allotment. Global and domestic approaches

Public Op has receded on whether climate change is human induced, AND to take significant action (in last 2 years)

Enforcing Global Agreements (UNFCCC & Kyoto) Cancun deadend?

States/cities taking lead CC commissions Action Plans Performance stnds on electricity and vehicles GHG reporting and auditing

Legal/Policy Action: EPA v. Mass (2007)—GHG are a “pollutant” to be regulated by the EPA State (e.g. California) new rules/laws governing clean energy, fuel stnds, etc that affect climate

Massachusetts v. US EPA (2007) In 2003 (Bush), the EPA made two determinations:

1. the EPA lacked authority under the Clean Air Act to regulate carbon dioxide and other greenhouse gases (GHGs)

2. even if the EPA did have such authority, it would not use it. Petitioners were States: MA, CA, NY, etc, cities: Balt, DC, & NYC, and Enviro

Groups; Respondents were EPA, States: TX, OH, AS, etc. and Auto/Truck Groups

Holding: Petitioners had standing: Only 1 plaintiff needs to meet standing, MA did b/c of

future SLR the CAA does give the US EPA authority to regulate tailpipe emissions of GHGs, and its current rationale for not regulating was found to be inadequate, and the agency

must articulate a reasonable basis in order to avoid regulation. Sup Ct determined that to NOT regulate GHGs would be “arbitrary, capricious and not in accordance with the law”

In addition, the majority report commented that "greenhouse gases fit well within the Clean Air Act’s capacious definition of air pollutant.”

Dissent (Scalia): No standing, but regardless, EPA should not be made to regulate, they have the right to “defer” and should be based on “Chevron Deference”

Vids

UCLA LAW: Mass v. EPA (5m) EPA Response (Stephen Johnson) in

Congress Hearing (8m)