Did Copenhagen Give Climate Change Legislation Any 'Bounce' in the Senate?

• Date: 01 March 2010

40 ELR 10248 ENVIRONMENTAL LAW REPORTER 3-2010

Did Copenhagen Give Climate

Change Legislation Any

“Bounce” in the Senate?

by Tom Mounteer

Tom Mounteer is a partner in the Washington, D.C., oce of Paul Hastings,

where he co-chairs the law rm’s environmental practice. Since 1997, he has

been an adjunct professor in the Masters in Environmental Law program at the

George Washington University Law School. He is also author of the Climate

Change Deskbook (Envtl. L. Inst. 2009). He thanks Paul Hastings Washington

oce associate Jennifer Shea for her contribution to this column.

If President Barack Obama expected

to get any “bounce” f rom Dec em-

ber’s i nternat ional climate change

talks in Copenh agen in terms of

gain ing U.S. Senate accepta nce of

comprehen sive cli mate cha nge legis-

lation, he must have been sorely dis-

appointed. Of course, afte r hi s rec ent

State of t he Union address —with its

focus on domestic jobs—perhaps the

president’s clim ate chang e ambitions

are d iminished.

During the State of the Union

address, the president did laud the U.S.

House of Representatives’ passage of t he

Waxman-Markey cap-and-trade bill.1

Certain passages in his address were

deant in their ref usal to sca le back his

ambition despite the trying times.

e fundamental problem the presi-

dent confronts with respect to cap-and-

trade legislation, however, is that the

biggest politica l “k nocks” against it go

right to the hear t of his domestic jobs

agenda. Opponents of cap-and-trade

legislation deride it as disastrous for

the economy and as incentivizing the

export of U.S. jobs.

Copenhagen oered little to over-

come these vulnerabilities.

If not an outright op, the so-called

Copenhagen Accord was certainly no

blockbus ter. Not a le gally bind ing

agr eeme nt, the delegate s settle d on

a “not e.”

Even if the Oba ma Administra-

tion had realistic expectations for the

talks, one presumes the Ad ministration

would like to have gotten some sort of

“bounce” from the talks to persuade

an increasingly reluctant Senate to

support cap-and-trade legislation. e

media were certa inly stirred up by the

prospects of 119 heads of state gather-

ing. President Obama not only made

the trip, but he also promised that the

United States would achieve greenhouse

gas (GHG) emissions reductions equiv-

alent to those contained in the Wax-

man-Markey Bill. He pledged to cut

U.S. emissions “ in the range of” 17%

by 2020 from 2005 levels.

It seems unlikely that Copenhagen

will provide any “bounce” at all. ere

are a number of reasons for that. First,

there is little in the Copenhagen Accord

likely to appease those Democratic sen-

ators who have opposed cap-and-trade

legislation because of its eects on the

U.S. economy and jobs. Second, sena-

tors may be skeptical of the integrity

of the promises that developing coun-

tries, especially China, made under the

Accord. ird, in this sour economy,

there may be little Senate appetite to

fund the adoption of GHG-reducing

technologies overseas.

Beyond the overall costs that cap-

and-trade legislation is projected to

impose on the troubled economy, sena-

torial reticence stems from a concern

that capping domestic GHG emissions

will cause industry to relocate overseas

where they would not face such caps

(or the costs of acquiring allowances)—

taking U.S. jobs with them. Before

President Obama left for Copenhagen,

10 Democratic senators expressed con-

cerns along these lines in two letters

to the president. e senators warned

that any international climate agree-

ment must ensure a level playing eld

for U.S. companies and workers. ey

cautioned aga inst shifting GHG emis-

sions—and underlying jobs—to coun-

tries t hat refuse to take actions similar

to the United States.

e most frequently touted mecha-

nism to prevent emissions and job

leakage abroad is the so-called border

adjustment mechanism—essentia lly

a tari on imports from countries not

enforcing GHG caps. e Waxman-

Markey Bill includes a border adjust-

ment mechanism, i.e., the “international

reserve allowance” program, beginning

in 2020 if energy-intensive, trade-sensi-

tive sectors in the United States are still

impacted by international competitive-

ness issues.2

e mechanism is controversial.

Experts call its legality under interna-

tional free trade agreements into ques-

tion. It risks triggering retaliation from

aected countries. China, for example,

has rai led against the border adjust-

ment concept.

In addition to international trade

and competitiveness concerns, senators

remain skeptical about the promises

developing countries made under the

Copenhagen Accord. Prior to Copen-

hagen, China pledged to reduce its “car-

bon intensity”—not its absolute GHG

emissions—by 40 to 45% below 2005

levels. In other words, China plans to

continue to grow its economy but to do

so in a more energy-ecient manner.

Of course, those with a long-ter m

perspective point to the prog ress that

any commitment from developing

countrie s to re ducing carbon emis-

Tom Mounteer

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.