Reflections on a Problem of Climate Justice: Climate Change and the Rights of States in a Minimalist International Legal Order

• Author: Jonathan C. Carlson
• Position: Professor of Law, University of Iowa College of Law
• Pages: 03

Professor of Law, University of Iowa College of Law. This paper is based on a talk given at the Journal of Transnational Law and Contemporary Problems Symposium: "Climate Change and Human Rights" (Feb. 2008). I am grateful to my research assistants, Adam Abelkop and Kevin Burns, for their assistance on this project.

Page 45

I Introduction

As the international community deals with climate change over the next several decades, it will face many issues of justice, equity, and ethics. For example, already there are people whose lives and cultures are being disrupted or destroyed by climate change.¹ Is there an obligation to help Page 46 those people and, if so, what action is required and who should be taking it? As the impacts of climate change worsen, the question of how to deal justly with its victims will only become more difficult. ²

Beyond the question of dealing appropriately with climate change victims, the international community must consider the nature of its obligations to future generations. Is there an obligation for living humans to preserve or improve the earth's condition for future humans? If so, what does that obligation entail? While it is possible that justice to future generations requires preservation or improvement of the natural world, it is also arguable that environmental degradation is acceptable and just. such degradation is the price that is paid to make investments in physical and human capital that ensure future generations a better life than they might otherwise expect.³ In the context of climate change, it may be that economic growth (and continuing greenhouse gas emissions) will contribute more to the happiness of future generations than they would gain from inheriting a planet that was less impacted by climate change. ⁴ Page 47

Another set of issues involves the justice and equity of any actions that are taken to mitigate climate change.⁵ Mitigation will require dramatic reductions in our greenhouse gas emissions. ⁶ Barring some technological breakthrough that makes mitigation inexpensive or even profitable, determining who should bear the cost of mitigation efforts (which persons, businesses, nations) becomes critical.⁷ Many prefer the use of a carbon tax, imposed equally on all greenhouse gas emissions, but that raises questions of its own. For example, were such a carbon tax imposed, it would be necessary to determine how the proceeds of the tax should be distributed and whether certain carbon-emitting activities should be free of the tax because of their particular importance. ⁸ These same questions arise in any scheme to reduce emissions, although they are most transparent when a tax is proposed.

Questions of justice and equity are made more difficult by our lack of certainty about the near- and long-term consequences of climate change. Under some scenarios, the consequences of climate change will be catastrophic and will strike in a relatively short period of time-say the next fifty years. On this view, immediate and rapid action to address climate change is needed or virtually every part of the globe will be overwhelmed by climate changes that humans are unprepared to manage. ⁹ But under other Page 48 scenarios, climate change will be gradual and its impacts will range from severely negative in some regions to positive in others.¹⁰ Moreover, if change is gradual, there may be time to adapt, which may be less costly than mitigation.¹¹

All of these justice issues, and the policy debates climate change implicates, are important and worthy of the extensive literature that is developing to address them. This Article offers some preliminary thoughts on a relatively narrow climate justice issue that has been the subject of recent debate.¹² Professors Posner and Sunstein describe the problem:

Reductions in greenhouse gas emissions would cost some nations much more than others and benefit some nations far less than others. Significant reductions would likely impose especially large costs on the United States, and recent projections suggest that the United States is not among the nations most at risk from climate change. In these circumstances, what does justice require the United States to do?¹³

One simple and troubling answer to this question, offered by Posner and Sunstein for the purposes of argument, is that justice requires nothing of the United States, and that those nations that stand to gain the most from reductions in greenhouse gas emissions (India and much of Africa) should make side-payments to the United States to induce it to act in their interest. With such side-payments, Posner and Sunstein observe: "an international Page 49 agreement could be designed so as to make all nations better off and no nation worse off. Call this a form of international Paretianism. Who could oppose an agreement based on international Paretianism?"¹⁴

Of course, many people would oppose such an agreement,¹⁵ believing that the United States and other industrialized nations, historically the largest emitters of greenhouse gases have a special obligation to address the problem of climate change:¹⁶

Through their own industrialization history and current lifestyles that involve very high levels of [greenhouse gas] emissions, industrialized countries have more than used up their share of the absorptive capacity of the atmosphere. In this regard, the global warming problem is their creation, so it is only right that they should take the initial responsibility of reducing emissions while allowing developing countries to achieve at least a basic level of development.¹⁷

But, Posner, Sunstein, and others¹⁸ argue that distributive and corrective justice arguments that seek to impose a special duty to act on the United States and other greenhouse gas polluters "poorly fit the climate change problem."¹⁹ While they conclude that the United States "should probably participate [in an international agreement to control greenhouse gases] even if the domestic cost-benefit analysis does not clearly justify such participation,"²⁰ they see difficulties in any effort to explain this result except as an act of charity by the United States (and presumably by other similarly-situated, greenhouse gas-emitting nations).²¹ Page 50

The unstated but essential premise of Posner's and Sunstein's point is that an agreement that makes "everyone better off and no one worse off"²² is a "just" agreement, and that the burden of proving otherwise is on those who would oppose such an agreement. This Article takes issue with that premise. A Pareto-optimal agreement may be an efficient agreement, but that does not make it a just agreement or even create a presumption that it is a just agreement.

This Article takes seriously the question that Posner and Sunstein pose only heuristically: ²³ whether side-payments to greenhouse gas emitters would be a just solution to the problem of securing widespread international participation in climate change mitigation efforts. The analysis focuses particularly on the participation of countries, like the United States, that might not otherwise benefit from climate change mitigation actions. Is it in fact true that an international agreement involving side-payments to induce such countries to join in climate change efforts would not only be efficient, but would also be "just?"

Part I states the nature of the problem under consideration. Part II examines the "side-payments" argument and concludes that the question of whether side-payments are a just solution to the problem of securing international cooperation in a mitigation effort depends on the answer to a prior question-do greenhouse gas emitters have an unrestricted right to emit? Part III argues that greenhouse gas-emitting states do not have an unrestricted right to continue emitting greenhouse gases and that, as a consequence, side-payments to those states are not a just solution to the problem posed.

II Mitigation Winners, Mitigation Losers, and the Just Distribution of Gains from International Cooperation

There is increasing evidence that the world as a whole will benefit if nations take serious steps to reduce greenhouse gas emissions.²⁴ At the same time, however, the reluctance of the United States to take those steps is notorious,²⁵ and the United States is not alone. The largest and richest Page 51 developing countries, including India and China, have resisted agreeing to aggressive climate change mitigation goals. ²⁶ One explanation for this reluctance might be that strong action against climate change will not benefit these states, even if such action would benefit the world as a whole.²⁷ In other words, there may be states that are "mitigation losers."

It might be surprising that climate change mitigation might not be in the interest of particular states. But the fact is that different states will be differently affected by climate change. Based on current assessments, developing nations in tropical regions will most likely experience the severest effects.²⁸ By contrast, the United States and other countries with temperate climates are likely to experience more modest adverse impacts and might experience some offsetting benefits from a warming planet. The United States, Canada, and Russia, for example, might find that their vast northern...