Global climate governance to enhance biodiversity and well-being: integrating non-state networks and public international law in tropical forests.

• Author: Long, Andrew

1. INTRODUCTION II. GOVERNANCE OF TROPICAL FORESTS A. Situating Tropical Forest Governance as a Global Administrative and Environmental Law Challenge B. Tropical Forests and Governance 1. Issue-Linkages and the Importance of Tropical Forests 2. The Absence of Effective International Forest Law 3. Private Forest Governance: A Limited Approach C. The Climate Regime and Tropical Forests 1. Climate-Forest Regulation for Mitigation: The Emergence of REDD 2. Climate Change Adaptation in Tropical Forests: The Future of REDD III. REDD FROM A BROADER GOVERNANCE PERSPECTIVE: CRUCIAL COBENEFITS A. Importance of Cobenefits B. The Need for Greater Emphasis on Cobenefits C. The Risks of REDD: Negative Externalities of Forest Carbon 1. Ecological Damage 2. Socioeconomic Damage D. REDD Markets: Promise and Perils 1. Market Benefits 2. Market Forces. Intensifying REDD Risks E. Emerging Efforts to Improve REDD: NSMD Approaches and Voluntary Investment in Cobenefits IV. INTEGRATING PRIVATE CERTIFICATION AND PUBLIC LAW: A REDD FRAMEWORK FOR COBENEFITS A. Building Certification into REDD B. Recognizing Cobenefits 1. Ecological Adaptation Activities 2. Socioeconomic Adaptation Activities C. Financing 1. Source of Funds 2. Distribution of Funds a. Amount of Financing. b. Accountability and Timing D. Noncertified (Mitigation-Only) REDD E. Applying the Proposal V. CONCLUSION: BROADER LESSONS OF THE PROPOSAL I. INTRODUCTION

   Global environmental governance in the 21st century faces core questions regarding the role of supranational institutions and nongovernmental actors in the regulation of activities within the domestic authority of sovereign nations. These issues are nowhere more acutely represented than in tropical forests. Prior international efforts to protect tropical forests have generally failed, but effective international measures that preserve these ecosystems are essential for a successful response to the primary environmental challenges of the 21st century--climate change, biodiversity loss, and related threats to the well-being of the world's poor.

   A new program for tropical forest protection is emerging in the climate change regime. (1) It seeks primarily to preserve forests as carbon stores, but also offers hope of broad cobenefits for the full range of forest values. (2) Tropical forests have gained a prominent place in climate change negotiations because deforestation accounts for nearly twenty percent of global greenhouse gas (GHG) emissions. (3) Considering that a climate-forest initiative has the potential to secure emissions reductions in developing countries, it may also serve as an enabling element for a broader post-2012 global climate change agreement. (4)

   In this Article, I examine current efforts to create a Climate-forest program and find them lacking in fundamental ways. At the same time, I suggest that a modified climate-forest program could provide a much-needed model for integrated governance in international environmental law.

   Ultimately, I propose a hybrid public-private governance approach to reducing carbon emissions from deforestation while promoting a broad array of ecological and socioeconomic cobenefits that enhance climate change adaptation. This proposal is informed by the history of international efforts to preserve tropical forests, the enormous social and ecological value of these ecosystems, economic considerations, and the recent history of the climate regime negotiations that have brought the forests within their ambit.

   Following the influential Stern Review's economic analysis of potential emissions reductions in the forestry sector, (5) reducing deforestation became widely regarded among developed countries as cost-effective "low hanging fruit" in the search for near-term climate change mitigation measures. (6) Efforts to create a forestry-based mitigation mechanism (known as Reducing Emissions from Deforestation and Degradation, or REDD) have since outpaced most other aspects of climate change negotiations and burgeoning roster of internationally funded REDD demonstration projects for the voluntary market now exists. (7)

   The basic outline of a climate regime program to reduce tropical deforestation is becoming clear. REDD would compensate developing countries for reducing their carbon emissions by reducing their rates of deforestation. (8) In many formulations, much of the funding needed for this compensation would come from public or private investors who obtain carbon credits reflecting the avoided emissions or sequestered carbon. (9)

   These carbon credits could then be used by public or private actors within developed countries to comply with international, national, or subnational emissions regulation. (10) The role of such marketable carbon offset credits has proven divisive, however, drawing sharp opposition from several developing countries and civil society observers.

   Parties came close to agreement on REDD at the fifteenth Conference of the Parties (COP-15) to the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen, Denmark when the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA) produced a draft decision that could possibly have been finalized if greater progress had been made on an overarching post-Kyoto agreement. (11) The "Cancun Agreements" reached at the sixteenth Conference of Parties (COP-16) include several paragraphs encouraging REDD activities and articulating some aspects of a framework for REDD implementation. (12) However, the most difficult questions, including the role of markets in supporting REDD, remain unresolved and, on the whole, governance of tropical forests remains notoriously poor. (13)

   An effective forestry mechanism within the climate regime could provide extensive and globally significant environmental and social benefits. Tropical forests directly support more than 350 million forest-dependent people worldwide, provide critical regional and global ecosystem services, and are among the most biodiverse ecosystems on Earth. (14) Many tropical forest systems and associated human communities face severe threats from both climate change and other drivers of deforestation that international law has so far been unable to adequately address.

   Not only are REDD cobenefits important to broad global environmental goals, but cobenefits will also be a critical determinate of REDD's success in meeting specific climate regime goals. Managing forests for cobenefits will support both the creation and permanence of REDD mitigation benefits while offering a means to promote climate adaptation of forest ecosystems and the human communities dependent on them. (15) In the absence of socio-economic cobenefits, the pressures driving deforestation may remain high and, without ecological cobenefits, the forests themselves may become increasingly vulnerable to damage from climate change.

   The risk that REDD will fail is very real, but the climate regime stands as a sort of last best hope for improving tropical forest management. (16) Direct multilateral forestry negotiations over the past two decades are replete with striking failures, exhibiting a "grotesque character" (17) that has produced institutions serving as "decoys, deliberately intended to pre-empt governance." (18) While innovative non-state certification regimes have emerged to fill at least part of the governance gap left by failed forestry regulation, these private governance programs have had little impact on tropical deforestation largely because of their inability to leverage sufficient resources. (19)

   With significant momentum behind REDD--such as recent pledges of over $4 billion by developed countries to encourage REDD development (20)--many countries and observers express optimism that REDD will drive widespread improvements in tropical forest management that yield gains in biodiversity preservation, sustainable development for forest peoples, and other cobenefits. (21) Yet, indigenous peoples organizations and others express deep concern that REDD may produce negative ecological and social externalities in developing countries. (22) Similar international investment in forest carbon projects in Ecuador and Uganda, for example, have been sharply criticized for displacing native ecosystems with tree plantations and exploiting vulnerable populations living near the forests. (23) These projects arose in the context of a voluntary market, where much investment is presumably driven by beneficent intent or desire for favorable public relations.

   If REDD gains international approval as a carbon offset mechanism, it may spur much larger regulatory markets in which the major actors will be concerned primarily with profiting from cost-effective carbon credits that can be used for regulatory compliance in developed countries. For example, an entrepreneur who had recently secured a $9 million investment from Merrill Lynch for a forest carbon project in Sumatra told CNN: "The more hectares we manage, the more land we 'farm' carbon on, the more money we make.... Our goal is to be the Amazon.com of the Amazon." (24) This profit-driven vision of REDD runs a greater risk of causing damage in the name of GHG reductions than current forest carbon projects.

   Even if investment considerations and international REDD rules effectively discourage some negative externalities--for example, investors may shy away from projects likely to increase social instability that could undermine permanence--the current conception of REDD as primarily a mitigation mechanism is likely to miss significant opportunities to make meaningful progress toward increasing sustainable management of forests. Moreover, a narrowly defined "do no harm" approach may actually prevent progress by locking in mitigation-driven policies that prevent broader improvements to other key global ecosystem services, such as biodiversity preservation.

   While REDD holds promise for filling the regulatory gap in tropical...