Ratification of Kyoto aside: how international law and market uncertainty obviate the current U.S. approach to climate change emissions.

• Author: Diener, Shari L.

TABLE OF CONTENTS INTRODUCTION I. AN INTRODUCTION TO GLOBAL CLIMATE CHANGE A. Critics of Anthropogenic Climate Change B. Response to the Critics II. INTERNATIONAL EFFORTS TO ADDRESS GLOBAL CLIMATE CHANGE A. The Stockholm Declaration and the Framework Convention B. The Kyoto Protocol 1. The Free-Rider Problem 2. The United States Reacts to Kyoto III. ARE EMISSIONS REDUCTIONS BINDING UNDER INTERNATIONAL LAW? A. Obligations Under the UNFCCC B. Multilateral Treaties as Customary International Law IV. IF NOT KYOTO, THEN WHAT? DOMESTIC ALTERNATIVES A. Regulation Under Existing Federal Law: Clean Air Act and New Source Review B. Massachusetts v. EPA C. State-Based Initiatives D. Pending Federal Legislation V. THE MARKET'S DOUBLE-EDGED SWORD: CONCERNS FOR THE ECONOMY IN THE ABSENCE OF REGULATION CONCLUSION "[A] relatively small investment today is far wiser than spending vast amounts in the future to restore ecosystems, agriculture and infrastructure.... [T]he time to act on carbon is now." (1)

INTRODUCTION

On October 14, 2004, a coalition of thirty U.S. business, nonprofit, and energy policy organizations wrote a letter to President Bush expressing concern that the American economy will ultimately suffer as a result of the United States rejecting the Kyoto Protocol. (2) The organizations lament that they and others "'will be cut out of the new carbon trading markets'" set up in London and that "'incentives to install renewables and other clean technologies in the treaty will give companies in Europe and elsewhere a financial advantage in joint trading agreements with former Eastern Bloc and developing countries.'" (3)

Approximately one year earlier President Bush received a different letter regarding global climate change, this time sent by a nationwide coalition of scientists. (4) The letter confirmed "the consensus opinion of the scientific community" as one fully supporting the findings by the Intergovernmental Panel on Climate Change (IPCC) and the National Research Council (NRC). (5) Anthropogenic climate change is underway, and "[e]ven under mid-range emissions assumptions, the projected warming could cause substantial impacts in different regions of the United States, including an increased likelihood of heavy and extreme precipitation events, exacerbated drought, and sea level rise." (6) The letter highlighted that late-twentieth-century climate warming fails to appear on computer simulations that include only natural climate forces like volcanic emissions and solar activity, but does appear on computer simulations that include anthropogenic greenhouse gas emissions. (7)

Given the broad scientific consensus regarding human-induced climate change and the belief among some sectors of the U.S. economy that engaging in an international effort to reduce climate change will benefit both the environment and the economy, what is stopping the United States from leading the world in this effort? The answer to this quandary may prove more complicated than it appears. Uncertainty as to what is required by law and conflicting policy preferences over emissions regulations have resulted in a haphazard national approach to anthropogenic climate change. This Note argues that from a legal perspective the United States is, and will remain, out of compliance with its international legal obligations until good-faith efforts toward reducing domestic greenhouse gas emissions are administered. In the interim, stalling such an effort may actually prove harmful to U.S. businesses, which are ill-positioned to compete in a carbon-constrained world.

Part I introduces the reader to mainstream scientific analyses of global climate change, as well as counterarguments regarding the impact of greenhouse gas emissions. Part II studies international efforts to address climate change, examines U.S. reactions to these international efforts, and discusses the present course of U.S. policy in the climate change arena. Part III evaluates the U.S. legal obligations assumed under the United Nations Framework Convention on Climate Change (UNFCCC) and posits that the Bush administration's goal of merely slowing the rate of projected greenhouse gas increases is incongruent with the nation's duty to actually decrease output. Part IV considers several domestic alternatives to ratifying the Kyoto Protocol by which the country might meet its international obligations. Finally, Part V assesses market reactions to scientific predictions and international actions, concluding that U.S. industries have a strong mid-term economic interest in reducing emissions and diversifying production.

1. AN INTRODUCTION TO GLOBAL CLIMATE CHANGE

   The National Academy of Sciences reported that during the past century the mean surface temperature of the Earth rose by about one degree Fahrenheit. (8) Solar energy is the driving force behind the Earth's climate; atmospheric greenhouse gases such as water vapor, carbon dioxide, methane, nitrous oxide, and ozone trap some of the solar energy that otherwise would be reflected back into space by the Earth's surface. (9) This natural phenomenon is critical to the Earth's function as a life-support system for existing species, including human beings. (10) The twentieth-century temperature increase, however, represents the largest spike in climate warming that has occurred in the past 400-600 years. (11) To add context to the seemingly slight one degree Fahrenheit change in global temperature this past century, note that the last ice age averaged just a three- to five-degree difference from present mean temperatures. (12) Physical changes worldwide lend support to the temperature record data:

   mountain glaciers the world over are receding; the Arctic ice pack has lost about 40% of its thickness over the past four decades; the global sea level is rising about three times faster over the past 100 years compared to the previous 3,000 years; and there are a growing number of studies that show plants and animals changing their range and behavior in response to shifts in climate. (13) Although naturally occurring emissions from plant respiration and decomposing organic matter contain more than ten times the carbon dioxide released by anthropogenic activity, natural emissions have historically struck a delicate balance with the absorption capabilities of terrestrial vegetation and the oceans. (14) Scientists generally agree that anthropogenic activities since the beginning of the industrial revolution--primarily the combustion of fossil fuels--are responsible for the increased concentration of greenhouse gases in the atmosphere, and that this increased concentration is responsible for the accelerated rate of climate change. (15)

   A study on climatic warming in the Arctic, commissioned by the United States and seven other nations, reported that human-induced climate change will accelerate over the next century, "'contributing to major physical, ecological, social and economic changes, many of which have already begun." (16) The report listed many probable harms resulting from melting glaciers, including a shorter oil and gas drilling season, "'devastating consequences for polar bears, ice-living seals and local people for whom these animals are a primary food source,'" and rising sea levels worldwide. (17) Along the same vein, the 2001 report on climate change science issued by the Intergovernmental Panel on Climate Change (IPCC) (18) found that some natural systems will be irreversibly damaged by climate change, resulting in species extinctions and biodiversity loss; human systems and human health are also vulnerable to climate change, particularly in coastal and impoverished states. (19) The report concluded that rising sea levels and "large-scale (continental or global), irreversible changes in Earth systems resulting in widespread and sustained impacts cannot be ruled out," and adaptation "will incur costs and will not prevent all damages." (20) The IPCC is recognized by the United States as the preeminent objective scientific international body responsible for providing the most current knowledge available on global climate change. (21) The IPCC found that today's carbon dioxide atmospheric concentration is the greatest in 420,000 years, and probably the greatest in twenty million years. (22) The United States is the largest producer of greenhouse gases in the world, responsible for about 25% of global carbon dioxide emissions. (23)

   As part of its commitment as a party to the UNFCCC, which was established at the 1992 United Nations Conference on Environment and Development (UNCED) (also known as the Rio Earth Summit), the United States submitted the U.S. Climate Action Report 2002 to the Secretariat of the UNFCCC. (24) The portion of this State Department report outlining key regional vulnerabilities and probable consequences of climate change for the United States follows:

   Northeast, Southeast, and Midwest--Rising temperatures are likely to increase the heat index dramatically in summer....

   Appalachians--Warmer and moister air is likely to lead to more intense rainfall events in mountainous areas, increasing the potential for flash floods.

   Great Lakes--Lake levels are likely to decline due to increased warm-season evaporation, leading to reduced water supply and degraded water quality. Lower lake levels are also likely to increase shipping costs.... Shoreline damage due to high water levels is likely to decrease, but reduced wintertime ice cover is likely to lead to higher waves and greater shoreline erosion.

   Southeast--Under warmer, wetter scenarios, the range of southern tree species is likely to expand. Under hotter, drier scenarios, it is likely that grasslands and savannas will eventually displace southeastern forests in many areas, with the transformation likely accelerated by increased occurrence of large fires.

   Southeast Atlantic Coast, Puerto Rico, and the Virgin Islands--Rising sea level and higher storm surges are...