Distributing emissions rights in the global order: the case for equal per capita allocation.

• Author: Saltzman, Rachel Ward

1. INTRODUCTION

   It is widely accepted that citizens of the wealthiest nations have contributed the most to climate change through high consumption and greenhouse gas-intensive production, and that, in turn, climate change is geographically most threatening to some of the world's poorest persons. This inequitable situation--where the consumption habits of the wealthy are understood to produce observable adverse effects on the less well-off suggests that assigning responsibility for climate change should involve an appeal to principles of distributive justice. A just solution to climate change has two main components. First, it should satisfy a goal of equal treatment by rebalancing the existing distribution of economic and political influence in order to give all nations the ability to shape the global institutions that affect them. Second, it should reduce total global emissions while equalizing among nations the consumption of greenhouse gas-producing goods and activities. This Note suggests that the best way to satisfy both requirements is to implement equal per capita allocation of emissions rights (EPCA). (1)

   This Note begins in Part I with an account of the ethical considerations that have so far figured into the international climate policy debate. In concluding that these considerations are not sufficiently deep, Part II appeals to a vision of global institutions that has been advanced by human rights philosopher Thomas Pogge. As Pogge has argued, the world's most important economic institutions are now interconnected such that they give rise to transnational demands of justice. (2) Part III explains why the very nature of climate change as a global problem gives weight to the assertion that duties of justice apply across state borders. Further, the global institutional order gives rise to duties that are even deeper than those that Pogge suggests. Remedies that provide for compensatory wealth transfers without altering the underlying scheme of entitlements not only frustrate the right of all human beings to have a hand in shaping the institutions that affect them, but also sustain a morally arbitrary distribution of advantage. An initial indictment of the international negotiating framework therefore can be deepened in a way that is particularly important for the climate change context: climate negotiators for wealthy nations cannot fulfill their extant duties to persons in other countries simply by agreeing to arbitrarily more stringent reduction targets. Rather, as I argue in Part IV, they hold a full duty of equal distribution when it comes to emissions rights. Part V concludes by providing a series of suggestions for institutional reform.

2. A CRITIQUE OF THE CLIMATE NEGOTIATIONS FRAMEWORK

   International climate negotiations to date have consistently emphasized the need for developed countries to take on the financial burden of addressing climate change. The rationale for placing greater requirements on developed countries has so far sounded in both corrective and distributive justice. Under a "responsibility" notion of equity, industrialized countries are required to pay for emissions reductions because they have historically produced the bulk of the greenhouse gas emissions that cause climate change. This approach, sometimes called the "polluter pays" principle, is a corrective justice measure that reflects what Jules Coleman and Arthur Ripstein call the "principle of fairness": the idea, central to tort law, that people should bear the costs of their own activities. (3) Further, under an "ability to pay" notion of equity, developed countries are expected to pay for the bulk of mitigation because they have greater resources and, therefore, the capacity to do so. (4) In contrast to the polluter pays principle, which entails identifying certain actors as having caused climate change, the "ability to pay" approach is distributive in nature, drawing on considerations of equality and social welfare.

   Both conceptions of equity have figured, at least facially, in the assignment of emissions reduction targets. The Kyoto Protocol, hailed as the "first step" (5) toward effective international emissions allocation, introduced binding caps on emissions for developed country signatories only." Kyoto's text invoked the principle of "common but differentiated responsibilities" (CBDR), (7) first introduced in the Rio Declaration in 1992 (8) and repeated by the United Nations Framework Convention on Climate Change (UNFCCC). (9) Before Kyoto, the Rio Declaration had presented CBDR not only as a response to "the different contributions to global environmental degradation" of different nations, but also as an acknowledgement of "the pressures [societies of developed countries] place on the global environment and of the technologies and financial resources they command." (10) In describing both the imbalance in historical responsibility for climate change and the resource-intensive nature of life in developed countries, the Rio Declaration treated both corrective and distributive justice as relevant to a determination of who should bear the costs of climate change.

   The relatedness of corrective and distributive justice concerns accounts for the Rio Declaration's reliance on both sets of principles. Historically high levels of emissions-intensive production--which provide potential grounds for applying corrective justice remedies--have facilitated the generation of wealth in developed countries, in turn raising questions of distributive justice. (11) Historical emissions are therefore closely related to ability to pay. This interconnectedness is not unique to the climate change context. As Coleman and Ripstein have pointed out, problems of corrective and distributive justice are, in general, fundamentally the same: (12) the value of distributive shares will fluctuate depending on which transfers are considered wrongful. (13) Because only "wrongful" transfers require correction, establishing duties under both corrective and distributive justice relies on how we draw the line between losses that require compensation and losses that should be allowed to lie where they fall. In this Note, I will focus on the need to ground responsibility for climate change harms in principles of distributive justice. My argument, however, should not foreclose the possibility of a parallel need for remedies in corrective justice.

   In spite of its rhetoric, Kyoto's commitment to equality as actually expressed in the UNFCCC negotiations is not particularly deep. The text of the Kyoto Protocol addressed disparities in development through its commitment to CBDR. Substantively, the treaty acknowledged concerns about equity by imposing emissions reductions requirements on developed countries but not developing countries. But the UNFCCC negotiations process allowed economically powerful states to obtain caps that squared with their capacity to reduce relative to current emission levels, while still protecting their economic advantage. Worse, the world's largest per capita polluter--the United States--refused to join the treaty even after exerting significant bargaining power to shape it. (14) Kyoto has ultimately failed its own commitment to principles of distributive justice by providing for insufficient reductions. (15) In setting caps that were too high to avert the harmful effects of climate change, Kyoto has continued to jeopardize the security interests of those who are most vulnerable to those effects.

   Critics of existing climate policy have argued that the Kyoto regime's failure to place more stringent limits on emissions in developed countries violates the rights of persons in developing countries. (16) Political officials in China and India, in rejecting recent suggestions that developing countries should take on binding targets in the next international agreement, have been particularly vocal about the need for a climate regime that reflects principles of distributive justice. In a rare interview with Financial Times in February 2009, Chinese Premier Wen Jiabao noted that "it [was] difficult for China to take quantified emission reduction quotas" at Copenhagen that year because China is still in the early stages of development. (17) At the G8 summit in L'Aquila, Italy, on July 8, 2009, both China and India refused to commit to specific goals for cutting emissions by 2050. (18) Objections to new commitments for developing countries often depend on a declared "right to development"--a distributive justice concept that suggests that developed countries must take responsibility for necessary emissions reductions as long as there are gross economic inequalities among nations. (19)

   One proposal for establishing a more just climate scheme is to replace Kyoto's tentative distributive commitments with a policy mechanism that recognizes the right to emit as belonging equally to each human being (20)--an idea that has been termed "equal per capita allocation" (EPCA). (21) Although, unsurprisingly, no politician in the United States or Europe has taken seriously the idea of allocating emissions rights on a per capita basis, the Indian government in particular has been particularly outspoken about supporting this approach. Prime Minister Manmohan Singh, in his June 2008 speech on the release of India's first Climate Change Action Plan, declared that "[e]very citizen of this planet must have an equal share of the planetary atmospheric space. Long term convergence of per capita emissions is, therefore, the only equitable basis for a global compact on climate change." (22) Allocation of emissions rights, under this view, should cease to reflect the economic muscle of the wealthiest nation states, and should instead be conducted on a worldwide per capita basis.

   This point of view, addressing what many regard as unabashed self-serving behavior on the part of wealthy nations, is contrary to the conception of rights and duties that shapes the...