The road forward from Copenhagen: climate change policy in the 21st century.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 9:00 a.m., Saturday, March 27, by its moderator, K. Russell LaMotte, of Beveridge & Diamond LLP, who introduced the panelists: Daniel Bodansky, of the University of Georgia Law School; Jeffrey M. Klein, of the U.S. Department of State; and Ann Petsonk, of the Environmental Defense Fund.


This year's theme is "International Law in a Time of Change." ASIL annual meeting themes, you may have noticed over the years, tend to have a horoscope-like quality, so that you can really fit anything under those umbrellas. But I can think of no issue that more embodies this year's theme than climate change.

Obviously the issue itself arises from fundamental shifts in the earth's ecosystems, with the potential for catastrophic change in the future. It presents a new multilateral negotiating challenge that I think exceeds in complexity pretty much any that the international community has previously faced. The approach of the Obama administration to this issue reflects what may be among the sharpest shifts--political shifts--from the approach adopted by its predecessor.

So an update on the state of global negotiations to mitigate and address the impacts of climate change is an indispensable element on this year's program, and, in fact, you've seen elements of climate change on other parts of the program.

Fortunately, we have really a first-rate panel to bring us up to speed and put the issues in perspective relating to the global negotiations and their implications more broadly for international lawmaking today. Let me first briefly introduce our panelists, and then I'm going to talk about how we're going to organize the panel and move through the session today.

Starting at the end, Dan Bodansky is a professor at the University of Georgia Law School and a globally recognized authority on international environmental law. He also served as the Climate Change Coordinator at the U.S. State Department during the Clinton administration, where I think it's safe to say he was my client at the time actually.


Annie Petsonk is International Counsel at the Environmental Defense Fund. She coordinates EDF's advocacy efforts on international environmental law, and she has been engaged in international climate negotiations since before the Kyoto Protocol was adopted.

Jeff Klein is an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State. At the Copenhagen Conference he acted as both legal counsel to the U.S. delegation and as a lead U.S. negotiator on mitigation. Jeff is here in his personal capacity--let me get this right--and his views today are solely his own and do not represent or necessarily reflect the views of the U.S. government or the U.S. Department of State.

So, for organizing this panel, we're going to take a slightly non-traditional approach. Rather than setting the panelists loose to give their own separate presentations, we're going to follow a hybrid format where at the end of the period I hope that it will have provided a reasonably comprehensive overview of where things stand and where they're headed. We're going to do a series of relatively short interventions on particular topics and then allow the panelists to comment on each other's presentations, and at the end, I'll ensure that there is plenty of time for audience questions.

We're going to start with Dan Bodansky, who is going to set the stage for the discussion by telling us what the run-up to Copenhagen looked like and what was at stake in the run-up to Copenhagen. Jeff then is going to give us an overview of what actually took place at Copenhagen, what the Copenhagen Accord provided, and shed a little light to clarify the negotiating path going forward from this part. And then Annie is going to start us off with an assessment of the Copenhagen Accord, was it a dismal failure, was it a diving catch, was it a modest success, or all three.

Then Dan is going to provide comments on Annie's assessment and maybe give us some thoughts about implications for the treaty-making process today more broadly, and then we'll give Jeff an opportunity to do the same thing.

Finally, we'll shift to the implications of the Copenhagen process for the U.S. climate legislation that is being drafted today and vice versa, what is the interrelationship between the U.S. process and the international negotiating process, and then we'll open the floor for questions.

With that, let me turn it over to Dan to open this morning's discussions.

* Of Beveridge & Diamond LLP.


I would like to talk about two things in my opening remarks: first, why Copenhagen was seen as so important, and second, why Copenhagen was so difficult, and some of the issues at stake at Copenhagen.

First of all, why was Copenhagen seen as such a big deal? I think there are three reasons. First, time is running out in terms of developing a climate change regime for the post-2012 period. The Kyoto Protocol first commitment period runs through 2012. That's fewer than three years away. After that, there are no existing limitations on greenhouse gas emissions, so the question is what to do after that first commitment period ends.

We don't have that much time. This is particularly important for the European Union which, because of its emissions trading systems, wants to ensure a smooth transition from the Kyoto regime to whatever follows it, but it' s also obviously of importance to others as well.

Second, time is running out also just on the climate change issue generally and taking action to prevent dangerous anthropogenic interference with the climate system, which is the objective of the Framework Convention. Despite the so-called "Climategate" controversy, the science is becoming increasingly clear about the dangers posed by climate change. No one is sure exactly how much we have to do and what our ultimate objectives should be, but I think it's clear that we need to begin acting now.

Among the proposals for a long-term objective for the climate change regime, the objective at the more modest end of the spectrum is to try to limit climate change to, or temperature increase to, no more than 2 degrees centigrade, which was reflected in the Copenhagen Accord, and to limit greenhouse gas concentrations to no more than 550 parts per million. Even that's going to be a very heavy lift to get there, a very heavy lift. To achieve 450-parts-per-million greenhouse gas concentrations in the atmosphere, global emissions will need to peak sometime in the next decade or so and then begin coming down.

Now, how much different groups of countries will have to do under that varies, but since developed countries are going to be expected to do more than developing countries, the estimates for what developed countries are going to have to do in terms of emission reduction is somewhere in the range of 25 to 45 percent reductions by 2020. So that's a huge reduction, and the longer we wait to start doing that, the harder it becomes to achieve that reduction. We need to get started now, and so Copenhagen would seem as the place where that might begin.

So far, I've been considering the objectives of the more modest end of the spectrum. Many people argue that we need to limit temperature increase to no more than 1.5 degree centigrade and concentrations to no more than 350 parts per million, which would be much more difficult to achieve and increases the urgency of action all that much more.

Third, I think expectations for Copenhagen were really high because of the change in administration in the United States and the shift that Russ was mentioning in the position on climate change by the Obama administration. In the months leading up to Copenhagen, sort of a self-reinforcing cycle set in where a few world leaders announced that they were going to be going to Copenhagen, and that raised expectations for Copenhagen, and then that let more world leaders to decide to go, and then it became a free-for-all. By the end of the whole process, virtually everybody ended up going to Copenhagen, and it was one of the biggest assembly of world leaders in history, which then, of course, raises expectations even more because if you have all of the world's leaders there, they have to produce something. In the end, it was actually the leaders themselves who were going through the text line by line, negotiating something that was probably unprecedented in history.

So there was a huge sense of urgency surrounding the Copenhagen conference for all of those reasons. Expectations were very high, I think, among everyone probably except the negotiators themselves who were involved in the process and had seen how slow and difficult progress had been, but for everybody else and the public at large, the expectations were high.

That brings me to the second point I wanted to make in these opening remarks, which was: Why was Copenhagen so difficult? Of course, climate change is a hugely difficult issue as a matter of public policy generally because it requires society to make very significant investments now to deal with harms that are very far off and uncertain in character, and that's very difficult to get people to do. It's even harder, of course, to try to take action now in the midst of a huge economic downturn.

Nevertheless, I think there were reasons to think Copenhagen could have been easier because in the months leading up to Copenhagen, virtually all of the world's major economies had announced national plans to reduce their greenhouse gas emissions. The European Union had a longstanding proposal on the table. The change in governments in Japan and Australia led Australia and Japan to put targets on the table. There was a long period throughout 2009 when it was unclear whether the United States was going to put a number on the table for what its emission reduction would be, but then ultimately, the Obama administration put...

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