Cubing the Kyoto Protocol: post-Copenhagen regulatory reforms to reset the global thermostat.

• Author: Ferrey, Steven

ABSTRACT:

The Copenhagen Conference of the Parties (COP-15), which took place in December 2009, was intended to set in stone an ambitious global climate change agreement for the post-2012 period, when the Kyoto Protocol expires. It did not succeed, resulting only in a 13-paragraph "political accord" which was not agreed to, but only "noted" because of lack of consensus. The COP-16 in December 2010 in Cancun, Mexico, met a similar, if less contentious, inconclusive end. Every fundamental issue was left unresolved at both disappointing critical Conferences. Left unreformed as an international legal regulatory mechanism, the Kyoto Protocol has no chance of success, and terminates by its own terms in 2012. A new legal architecture must address issues of participation, global warming chemical emissions, the failure in both participating developed nations and developing nations to shift power generation bases to sustainable low-carbon alternatives, misuse of carbon "offsets," and lack of effective enforcement. This article proposes a four-sided approach towards a new international legal architecture. I describe these approaches in the following dimensions, and propose to create a "cubed" model of governance that will put into place the ideals of the Kyoto Protocol.

Dimension 1: The legal line covering international stakeholders must be altered to include transitional developing countries. Policies must speak a new language of carbon control through adding forestation preservation protocols and including regulation of the most harmful global warming chemicals in developing countries.

Dimension 2: There is no Kyoto Protocol legal requirement whatsoever that developed economies make any shift to zero-carbon renewable power resources. A new legal architecture must construct renewable power alternatives. The successful demonstrated model for developing countries is examined in the article for a post-Kyoto legal protocol.

Dimension 3: There must be incentives for in-country zeroemission renewable compliance options rather than non-C[O.sub.2] external offsets as a default option. Legal mechanisms must be carefully tailored to different regulatory systems.

Dimension 4: The Kyoto Protocol contains no enforcement architecture or compliance mechanism. A method of legal enforcement, applicable in real time, must be implemented if international carbon control has any chance for success.

Kyoto is an international legal system that requires a dimensionally cubed reform of its basic legal architecture to become anything other than an unsuccessful historical footnote. At risk is the warming of the planet and well-publicized catastrophes. Without all of these four dimensions of legal reform, the Kyoto Protocol lacks the requisite legal depth and coverage to function as an effective limit on global warming forecasted to take place in the 21st century. If the Kyoto Protocol continues beyond 2012 in its current legal format, as the April 2008 Bangkok and 2009 Copenhagen climate change conference now plan, (1) it will fail.

Mere extension of the original Protocol will not work. There must be final alterations in the scope of the regulatory construct. This Article draws this new architecture for international carbon regulation in the above four dimensions. The final section of this Article examines whether U.S. carbon control legislation now working through the U.S. Congress could aid or remedy these Kyoto deficiencies.

ABSTRACT: I. A NEW CUBIST CARBON ARCHITECTURE A. Legally Covered Countries B. CDM Zero-C[O.sub.2] Technology-Transfer C. Increasing In-Country Compliance D. Enforceable Implementation in Real Time II. THE FIRST DIMENSION: PARTICIPATION A. The New Math of Effective Kyoto Architecture B. Reforming Forest Architecture--Now Ineligible under Kyoto C. Black Carbon III. THE SECOND DIMENSION: REENGINEERING THE POWER BASE IN NON-ANNEX 1 DEVELOPING COUNTRIES A. The Architecture of the Power Generating Base B. The Demonstrated New Architecture: The Successful Power Sector Model in Developing Nations IV. THE THIRD DIMENSION: SHIFTING POWER TECHNOLOGY IN ANNEX 1 COUNTRIES A. Shortcomings of the Current Architecture B. Preference for CDM Offset Trades Rather Than GHG Reduction in Annex 1 Countries V. THE FOURTH DIMENSION ARCHITECTURE: CREATING NEW INTERNATIONAL ENFORCEMENT MECHANISMS VI. CAN U.S. REGULATION REFORM THE KYOTO PROTOCOL? VII. CONCLUSION I.

A NEW CUBIST CARBON ARCHITECTURE

For 2010 and beyond, we are in the post-Copenhagen era: The Copenhagen Conference of the Parties (COP-15), which took place in December 2009, was intended to set in stone an ambitious global climate change agreement for the post-2012 period, when the Kyoto Protocol expires. It did not succeed. Instead, the Conference only produced a thirteen-paragraph "political accord" which was not an official product of the meeting, but only "noted" by the Conference because of lack of a consensus among world nations. Every fundamental issue COP-15 was supposed to address was left unresolved. (2) It was then scheduled by the Conference parties to occur at COP-16, the next formal Kyoto session held in December 2010 in Cancun, Mexico.

No additional progress occurred in Cancun, even though there were additional statements of aspiration. The last two years, 2009 in Copenhagen and 2010 in Cancun, resulted in no change and no extension of the regulatory architecture past its scheduled expiration next year. There continued a standoff between Japan and developing nations over Japan's opposition to a second commitment period of the Kyoto Protocol beyond 2012, and U.S. resistance to a new finance mechanism sought by developing nations without concessions from those nations on emissions cuts and verification. (3) The United States asked that the fund be established outside the authority of the United Nations Conference of the Parties that administers the Kyoto Protocol, and wants a major role for the World Bank, which developing nations opposed. (4) The World Bank was selected as interim Fund trustee. (5)

Left unreformed as an international legal regulatory mechanism, the Kyoto Protocol has no chance of success, and terminates by its own terms in 2012. The COP-15 accord asserts that the Kyoto mechanism must be restructured if it is extended beyond 2012. It must be revamped significantly to meet even its own targets successfully, not to mention the much more ambitious targets that many climate scientists believe necessary to prevent ecological catastrophe. (6)

Even though the Copenhagen round fell far short of all expectations, perhaps counter intuitively, there is hope for a new international architecture in some of the recent United States legislative developments. These may show the way to "cubing" new Kyoto architecture for climate change. This "cubing" is not literally arithmetic, but for purposes of analyzing various legal and regulatory dimensions of world policy and law, figuratively denotes adding new regulatory dimension to the now-limited legal structure of the Protocol, in four key, or "cubed," additional aspects. This "cubing" would raise the power of the Protocol to function to a more enduring, effective and enforceable level and depth.

That change is required sooner rather than later. Chief NASA climatologist James Hansen gives the world less than a decade to significantly slow or halt the increase of greenhouse gas (GHG) emissions if we intend to make meaningful headway against irreversible climate change. (7) Hansen notes that merely waiting until 2018 to stop the "growth of greenhouse gas emissions" may make it near impossible to avoid catastrophic effects of warming. (8) According to Dr. John Holdren, Director of the White House Office of Science and Technology Policy, if U.S. greenhouse emissions plateau in 2015, we would already have reduced our chances of avoiding climate catastrophes by 50%. (9) Neither the fledgling U.S. efforts by states and the federal government, (10) nor forecasts by international energy agencies, (11) offer any assuranCe that there will even be an approach to a plateau by 2015. New architectural protocols are urgently required to reverse the levels of GHG emissions in an effort to avert climate-based disasters.

Limiting global warming to 2.5 degrees Centigrade increase from pre-Industrial Revolution levels will require stabilizing carbon dioxide (C[O.sub.2]) concentrations in the atmosphere to no more than 450 parts per million (ppm). (12) "A top official with the Intergovernmental Panel on Climate Change (IPCC) has indicated that developed nations will need to slash C[O.sub.2] emissions almost entirely by 80-95% by 2050 to hold GHGs to 450 ppm in the atmosphere." (13) Complicating this, C[O.sub.2] lingers in the atmosphere, thus causing concentrations to hold steady for decades. (14) Within a century, if all nations of the world do not limit their greenhouse gas emissions, "the average global temperature will climb anywhere from 1.4[degrees] to 5.8[degrees] Celsius" (or 2.5[degrees] to 10[degrees] Fahrenheit). (15)

According to some scientists, we may even need to limit the increase in Earth "surface temperature to no more than 2-2.5 degrees Centigrade above ... the 15[degrees] Centigrade" Earth temperature at the time of the American Revolution to avoid catastrophic effects of global warming. (16) The current Earth mean temperature has increased by about 0.7 degrees Centigrade in the past 125 Years; (17) over the past 10,000 years, mean temperature has only varied by about 1 degree Celsius (less than 2 degrees Fahrenheit). (18) This will require a sharp reduction of emissions over the next generation, and to "near zero by 2100." (19) This will only be possible if we "can demonstrate that a modern society can function without reliance on technologies that release carbon dioxide...." (20)

Furthermore, Hansen suggests that even a 450 ppm limit would not be sufficient. He forecasts a scenario in which we will exceed the...