International power on "power".

• Author: Ferrey, Steven
• Position: I. Power at the Cusp of International Climate through IV. United States Direct and Indirect Carbon Regulation B. United States Unilateral Executive Actions Targeting C(O.sub.2

1. POWER AT THE CUSP OF INTERNATIONAL CLIMATE II. CLIMATE CHANGE AND POWER A. Climate Change B. Power's Carbon Push C. The Expanding Role of Coal Power III. CARBON STATUTES INTERNATIONALLY IN THE EUROPEAN UNION AND DEVELOPING COUNTRIES A. Internationally: The Kyoto Protocol 1. Kyoto's International Mechanism 2. Kyoto 'slow Carbon CDM Mechanism B. Europe: European Union Greenhouse Gas Emission Trading System Regulation C. International Sustainable Development Financing D. Carbon Additionality Requirements at Law IV. UNITED STATES DIRECT AND INDIRECT CARBON REGULATION A. Federal Tax Policy B. United States Unilateral Executive Actions Targeting C[O.sub.2] 1. New Power Generation Sources 2. Existing Power Generation 3. Mercury and Air Toxics Standard C. State Legal Authority overPower Choice 1. State Regulation of "Anti-Carbon" a. FiTs b. Renewable Portfolio Standards c. Net Metering 2. Economy, Incentives, and Power D. The Regional Greenhouse Gas Initiative E. California Carbon Regulation 1. AB 32 2. The California Low Carbon Fuel Standard V. CROSS-PURPOSES: INTERNATIONAL EXPEDITED DEVELOPMENT OF COAL-FIRED POWER A. International Dimensions of Coal B. China, India, and Beyond C. Required Policy VI. CONCLUSION: INTERNATIONAL IMPERATIVES I. POWER AT THE CUSP OF INTERNATIONAL CLIMATE

   Can international power be effectively used to control "power"? Electricity is regarded as the second most important invention in human history, and is now linked inextricably to irreversible international climate change. (1) Power occupies a substantial segment of the world economy--several hundred billion dollars of annual transactions in the United States alone. (2) To find a solution to the international challenge of climate change, the problem of power sector carbon emissions must be addressed and solved. There is power over power: Government incentives and demonstrated unilateral executive action in the United States, and a new model for sustainable power in developing countries, are key to solving this international challenge.

   Certain newly proven legal models abroad exercise power over power. Internationally, there is now a proven mechanism for advancing renewable power in developing countries. (3) While some developing countries are following this model, many large developing countries are building additional coal plants as fast as they can finance them, rather than primarily developing renewable power. China, India, and other developing countries are underwriting the most rapid push into more high-carbon coal-fired power in history. (4) By contrast, the United States is dramatically shifting away from coal generation to more sustainable alternatives, largely through unilateral executive branch regulatory action. What has transpired in the U.S. is a significant reduction in coal use and development, decreasing coal-fired generation from more than 50% of total United States generation a decade ago to significantly less than 40% today. (5)

   This Article addresses the immediate international legal challenge of this century: the necessity to align all world countries to shift power use to address climate change. There is a new climate change pledge transferring an additional $100 billion/year of aid to developing countries--constituting the largest pledged transfer of wealth in human history. (6) To be effective, this fund must be targeted at renewables or other power development that dramatically reduces warming emissions. Controls on world climate funds are warranted to a degree not present for other forms of international aid. (7)

   To be effective, the time is now: The United Nations scientific panel concluded in late 2014, with high certainty, that we are passing the point of being able to control the increase in world temperature to less than 2 degrees Celsius--3.8 degrees Fahrenheit--the so-called "tipping point" of the Planet's climate. (8) So if climate matters, we are at a critical legal precipice. The challenge is not one of technology--as workable renewable energy technologies are abundant and proven--but of effective international, national, and subnational legal mechanisms. However, tightening the screws of international law is necessary: the Kyoto Protocol as it stands today is not sufficient to meet the challenge. (9)

   This Article critically examines the various international, national, and subnational legal mechanisms in the United States and abroad, addressing what many consider the most pressing world problem: irreversible climate change. National and regional regulatory law has proven superior to international law to address the problem, although regional legal schemes in the European Union have employed politically inconsistent mechanisms. (10)

   This Article compares and analyzes the power exercised over power. Part II sets the scientific foundation for the importance of climate, the accelerating change in climate, and the role of power production and coal use at the center of this change. Part III analyzes international law and legal structures to address climate, focusing on the benefits and shortcomings of the Kyoto Protocol and the European Union climate regulations. Part III also examines Kyoto's Clean Development Mechanism (CDM) (11) as a catalyst for projects in developing countries, and the European Union Greenhouse Gas Emission Trading System (EU ETS) that accommodates and gives monetary value to these CDM credits.

   Part IV comparatively analyzes how the United States alternatively addresses carbon at the national and subnational levels. At the federal level, Part IV disaggregates tax policy and recent Obama administration unilateral executive action on a suite of new regulation to limit existing and new coal-fired power plants, evaluating the prospects for long term success with these regulatory initiatives. At the regional and state levels, this Article examines direct incentives of feed-in tariffs (FiTs), renewable portfolio standards (RPS), net metering, and greenhouse gas (GHG) emission restrictions to promote a radical shift to more sustainable power technology.

   Part V focuses a microscope on the most important developing countries to look through the shadows of their power development strategies and plans. While enjoying record growth, financial incentives from the Kyoto Protocol CDM program, and unprecedented aid pledges of $100 billion annually, China, India, Indonesia,--three of the four largest populations in the world--and other developing countries are deploying an unprecedented buildout of coal-fired power plants, which alone will make world climate goals unattainable. (12) This provides context for where the world is heading. Part VI concludes with an analysis of the separate legal models which have proven effective in both developed and developing countries to promote sustainability in lieu of high-carbon power. The Article begins with the science of climate and power.

2. CLIMATE CHANGE AND POWER

   In terms of warming, it is not the annual emission of unabsorbed carbon into the atmosphere, but the concentration of carbon in the atmosphere from at least the last century of accumulation, which is deemed responsible for climate change. (13) Carbon remains in the atmosphere for at least a hundred years. (14) Of the various sources of carbon emissions, the production of electric power utilizing fossil fuels is the most significant. (15) No developing countries are required to reduce emissions by the Kyoto Protocol, which seeks to limit world carbon emissions. (16) And many developing countries are building coal-fired power generation units at an unprecedented pace which undercuts the ability for arresting tipping over the "tipping point." (17)

   1. Climate Change

      Climate change is a significant global issue. For the last 800,000 years, Carbon Dioxide (C[O.sub.2]) levels hovered between approximately 175-300 part per million (ppm) in the atmosphere; they have now increased to 400 ppm. (18) Consequently, the earth is...