World News Update: UNFCCC Green Climate Fund Created
|Position||J.D. candidate, May 2011, at American University Washington College of Law|
SUSTAINABLE DEVELOPMENT LAW & POLICY69
Between November 29, 2010 and December 10, 2010, the
Parties to the United Nations Framework Convention
on Climate Change (“UNFCCC” or “Convention”) met
in Cancun, Mexico, for the sixteenth Conference of the Parties
(“COP”) and the sixth Meeting of the Parties to the Kyoto Proto-
col.1 One of the major decisions that emerged from this meeting
was to establish the Green Climate Fund.2 While the Fund has
the potential to be a huge step forward in creating long-term,
centralized climate change funding,3 its success will depend on
how subsequent decisions on management shape its efﬁcacy.
The idea for a climate change fund originates from Article
11 of the UNFCCC, which calls on the Parties to create a mech-
anism that allows developed countries to ﬁnancially support
developing countries in implementing the Convention.4 This
concept formally took shape as part of the Copenhagen Accord,
where Parties agreed to ﬁnance projects that address climate
change impacts in developing countries.5 The ﬁnalized Fund
includes provisions for technology development and transfer,
and capacity-building to help developing countries implement
effective mitigation and adaptation actions.6
In Cancun, the Ad Hoc Working Group on Long-term
Cooperative Action, made up from representatives of all mem-
ber countries, under the Convention put together the terms of
the Fund.7 The terms include the creation of a governing body,
who will contribute to it, and the trustees.8 The Fund has been
developed under the guidance of and will be held accountable to
the Conference of the Parties.9 The Parties established a Stand-
ing Committee, to manage the ﬁnancial mechanism as well as
verify and report ﬁnancial support that developed countries will
provide developing countries.10
The Green Climate Fund will be controlled by a govern-
ing board of twenty-four members, half each from developed
and developing country Parties.11 The Parties have designated
the World Bank as the interim trustee of the Fund, and its status
as trustee will be subject to review after three years of operating
the fund.12 The trustee will aid the governing board in manag-
ing the administrative portions of the Fund, such as the ﬁnancial
records and statements.13 The trustee is required to act in a man-
ner consistent with decisions made by the governing board14 and
is accountable to the board in performing its responsibilities.15
The Parties have also established the Transitional Com-
mittee to spearhead designing the operational components
WORLD NEWS UPDATE
of the Fund.16 The Committee includes ﬁfteen members from
developed countries and twenty-ﬁve members from develop-
ing countries.17 The Committee will design the legal and insti-
tutional arrangements for the Fund, including its governance
structure; methods on gathering ﬁnancial, technological, and
capacity-building resources; and ways to ensure that the Fund’s
activities work well with other funding mechanisms that already
exist.18 The Transitional Committee is also responsible for cre-
ating mechanisms for independent review of the Fund, stake-
holder input, environmental and social safeguards, and ﬁnancial
accountability.19 The Transitional Committee is temporary and
will only exist long enough to establish these initial standards.20
The Green Climate Fund helps create new funding for proj-
ects that will allow developing countries to better mitigate and
adapt to global climate change. However, whether the Fund will
be a major improvement over the current ﬁnancial regime21 will
largely depend on the effectiveness of the mechanisms that the
Transitional Committee establishes. One of the greatest oppor-
tunities for the Fund is the creation of environmental and social
safeguards, which currently do not exist with the other funds.22
Strong safeguards are essential in order to protect both the envi-
ronment and human rights. The independent review mechanism
will review decisions made by the governing board and help
ensure that the Fund runs smoothly and effectively.23 While the
creation of the Fund can be hailed as a successful outcome of the
UNFCCC’s COP-16, its true measure will be determined down
Endnotes: World News Update
1 United Nations Framework Convention on Climate Change, Ad Hoc Work-
ing Group on Long-term Cooperative Action, Thirteenth Session, Cancun,
Mex., Nov. 29-Dec. 10, 2010, Outcome of the Work of the Ad Hoc Working
Group on Long-term Cooperative Action Under the Convention, UN Doc.
FCCC/AWGLCA/2010/L.7 (Dec. 10, 2010), [hereinafter LCA Report], http://
4 See United Nations Framework Convention on Climate Change art. 11, May 9,
1992, 1771 U.N.T.S. 107, http://unfccc.int/resource/docs/convkp/conveng.pdf.
* Laura Drummond is a J.D. candidate, May 2011, at American University
Washington College of Law.
UNFCCC GREEN CLIMATE FUND CREATED
by Laura Drummond*
Endnotes: World News Update continued on page 98
WINTER 2011 70
China, Europe Lapping the United States in the Clean Energy Race, MONEY
MORNING, Apr. 2, 2010, http://moneymorning.com/2010/04/02/clean-energy/; Jeff
Siegel, Have We Even Entered The Clean Energy Race Yet?, SOLAR FEEDS (Aug.
12, 2010), http://www.solarfeeds.com/green-chip-stocks/13829-have-we-even-
entered-the-clean-energy-race-yet; Nick Hodge, China’s Clean Energy Progress:
Who’s Winning the Cleantech Arms Race?, GREEN CHIP STOCKS (Feb. 16, 2010),
19 Daniel J. Weiss, Susan Lyon & Tina Ramos, The Stone Soup Clean Energy
and Climate Bill, CLIMATE PROGRESS (Jul. 16, 2010), http://climateprogress.
20 See Preben Maegaard, Danish Renewable Energy Policy, WORLD COUNCIL FOR
RENEWABLE ENERGY, www.wcre.de/en/images/stories/pdf/WCRE_Maegaard_
Danish%20RE%20Policy.pdf (last visited Oct. 6, 2010) (Denmark); Renewable
Energy Policy in Germany: An Overview and Assessment, JOINT GLOBAL CHANGE
RES. INST., http://www.globalchange.umd.edu/energytrends/germany/6/ (last vis-
ited Oct. 6, 2010) (Germany).
21 By some measures (for example, amount of solar power generated), Spain
is winning the greentech race, just as it won the soccer World Cup. Talk about
dominance! Jasmine Green, Spain: Leading the Renewable Energy Race, CARE2,
power-and-more/ (last visited Oct. 6, 2010). One could also point to Portugal,
which will get an astounding forty-ﬁve percent of its electricity from renewables
in 2010. Elisabeth Rosenthal, Portugal Gives Itself a Clean-Energy Make-
over, N.Y. TIMES, Aug. 9, 2010, http://www.nytimes.com/2010/08/10/science/
22 A recent report by the Center for American Progress compares United States’
renewable energy policies unfavorably to both European nations and China. KATE
GORDON, JULIAN L. WONG & JT MCLAIN, CTR. FOR AM. PROGRESS, OUT OF THE RUN-
NING? HOW GERMANY, SPAIN, AND CHINA ARE SEIZING THE ENERGY OPPORTUNITY AND
WHY THE UNITED STATES RISKS GETTING LEFT BEHIND (2010), http://www.ameri-
canprogress.org/issues/2010/03/pdf/out_of_running.pdf. See also Markey, supra
note 14 (noting Rep. Markey’s comment that “Russia was our singular competitor
in the celestial contest. In this terrestrial endeavor, we have many.”).
23 Christina Larson puts it as follows: It is telling what is left out of the increas-
ingly dominant “U.S. versus China” green-tech “race” narrative. For starters,
there are a lot of other countries at work developing green-tech and becoming
signiﬁcant green-tech markets—the low-carbon future, after all, isn’t solely a
G-2 aspiration. Yet because the politics are different (there’s not the anxiety of
the reigning superpower nervously eyeing the new kid on the block), the green
aspirations of any country not named China are viewed through an entirely differ-
ent prism by U.S. commentators. Germany, for instance, is home to the world’s
top two solar manufacturing companies. Yet we don’t read headlines about Old
Europe “cleaning our clock” to the 21st century. Larson, supra note 5.
24 Id. (including statement of Elizabeth Economy, director of Asia Studies at
the Council on Foreign Relations, that “[e]ven when you are looking at these big
numbers that are coming out of China today, I think it really pays to give a close
look at what is actually happening on the ground [and t]hen you begin to get a
different, more nuanced picture than what is blasted on the business section of the
New York Times”).
25 CONSTANTIN CRACHILOV, RANDALL S. HANCOCK & GARY SHARKEY, CHINA GREEN-
TECH INITIATIVE, THE CHINA GREENTECH REPORT 2009 21 (2009), http://www.china-
greentech.com/sites/default/ﬁles/CGTR2009-FullReport.pdf (citing similar data
from the United States Department of Agriculture’s International Macroeconom-
ics Data Set for 1978-2008 and noting that China’s economy has doubled roughly
every seven to eight years); WAYNE M. MORRISON, FOREIGN AFFAIRS, DEFENSE
& TRADE DIV., CONG. RESEARCH SERV., IB98014, CHINA’S ECONOMIC CONDITIONS
(2006), www.fas.org/sgp/crs/row/IB98014.pdf (detailing the government’s shift
in policy and stating that “[f]rom 1979 to 2005 China’s real GDP grew at an
average annual rate of 9.6%”); Data: GDP Growth (Annual Percentage), WORLD
BANK, http://data.worldbank.org/indicator/NY.GDP.MKTP.KD.ZG (last visited
Oct. 6, 2010) (providing data for 2005-2008).
26 CHINA GREENTECH INITIATIVE, supra note 25, at 21 (citing data from the Interna-
tional Monetary Fund and stating that most analysts predict that China will over-
take Japan); David Barboza, China Passes Japan as Second-Largest Economy,
N.Y. TIMES, Aug. 15, 2010, http://www.nytimes.com/2010/08/16/business/
global/16yuan.html. By some predictions, China may overtake the United States
by 2030. See, e.g., CHINA GREENTECH INITIATIVE, supra note 25, at 32 ﬁg.15.
27 CHINA GREENTECH INITIATIVE, supra note 25, at 21.
28 U.S. and China Vie for Clean Energy Leadership, ENERGY CHINA FORUM (Aug.
17, 2010), http://www.energychinaforum.com/news/39260.shtml.
29 See, e.g., Stan Abrams, This is Your Brain on Nationalism: US-China Trade
Deﬁcit Follies, CHINA/DIVIDE (Apr. 14, 2010), http://chinadivide.com/2010/your-
brain-on-nationalism-us-china-trade-deﬁcit-follies.html (summarizing a number
of claims and reports). With respect to greentech speciﬁcally, see Bradsher, China
Leading Global Race to Make Clean Energy, supra note 12, citing low labor
costs as a Chinese advantage.
30 Nat’l Dev. & Reform Comm’n, Medium and Long-Term Development Plan
for Renewable Energy in China, CHINA DEV. GATEWAY (Sept. 4, 2007), http://
en.chinagate.cn/reports/2007-09/13/content_8872839.htm (“By 2020, a relatively
complete renewable energy technology and industry system will have been estab-
lished, so that a domestic manufacturing capability based mainly on China’s own
IPRs will have been established, satisfying the needs for deploying renewable
energy on a large scale in China.”).
31 RENEWABLE ENERGY POLICY NETWORK FOR THE 21ST CENTURY, RENEWABLES
2010: GLOBAL STATUS REPORT 30 (2010) [hereinafter RENEWABLES], http://www.
32 Compare Global Market Outlook for Photovoltaics Until 2014: May 2010
Update, EUR. PHOTOVOLTAIC INDUSTRY ASS’N, at 22 (May 15, 2010), http://www.
ics_until_2014.pdf (listing activities of European solar manufacturers), with U.S.
DEP’T OF ENERGY, OFFICE OF ENERGY EFFICIENCY AND RENEWABLE ENERGY, 2008
SOLAR TECHNOLOGIES MARKET REPORT 15 (2010), http://www1.eere.energy.gov/
solar/pdfs/46025.pdf (stating that the 2008 market share of Chinese ﬁrms was
33 Global Intelligence Alliance, China to Lead Global Wind Energy
Development?, RENEWABLE ENERGY FOCUS (Feb. 15, 2010), http://www.
34 JIM HIGHT, BUILDING BRIDGES FOR CLIMATE CHANGE MITIGATION: A ROAD-
MAP OF GLOBAL TRADE PATTERNS IN WIND POWER GOODS AND SERVICES, OECD
GLOBAL FORUM ON TRADE: TRADE AND CLIMATE CHANGE 6 (2009), www.oecd.org/
dataoecd/29/63/42886096.pdf (“[I]n 2004, China had only one domestic WTG
manufacturer—Goldwind. By the end of 2008, there were approximately 60, with
Goldwind as the leading seller, followed by Sinovel, Dongfang and Windey.”);
Eric Martinot & Li Junfeng, Renewable Energy Policy Update for China, RENEW-
ABLE ENERGY WORLD (July 21, 2010), http://www.renewableenergyworld.com/rea/
35 Pet. for Relief Under Section 301 of the Trade Act of 1974, as amended:
China’s Policies Affecting Trade and Investment in Green Technology, 13, Sept.
36 Chinese Wind Turbine Manufacturers’ Global Expansion: The Dream and
The Reality, GERSON LEHRMAN GROUP (May 9, 2010), http://www.glgroup.com/
and-The-Reality-48260.html; see also E-mail from Alexander U. Conrad to
author (Sept. 7, 2010) (on ﬁle with author) (noting that Chinese ﬁrms have not
penetrated the Brazilian wind market, despite that government’s promotion of
wind energy and a favorable climate between the two nations).
37 Solar Market Experiences Shakeout, China Is Well Positioned to Dominate
World Market, TOMMY TOY’S BLOG (Mar. 10, 2010, 7:36 AM), http://tommytoy.
38 See, e.g., Press Release, Senator Charles E. Schumer, Schumer, Casey,
Brown & Tester Urge Obama Administration to Suspend Stimulus Program
Funneling Billions Overseas (Mar. 3, 2010), http://schumer.senate.gov/record.
cfm?id=322732& (detailing efforts by four Senators to block federal funding for
the project); see also Yael Borofsky & Jesse Jenkins, The Real Policy Lesson
From the Chinese Wind Turbine “Scare,” BREAKTHROUGH INST. BLOG (Nov. 9,
2009, 1:47 PM), http://thebreakthrough.org/blog/2009/11/the_real_policy_les-
son_from_th.shtml (claiming that “Senator Schumer and others who seek to bar
Chinese manufacturers from stimulus funds are missing the point” and should
focus instead in promoting American greentech ﬁrms).
39 See, e.g., Wynn, supra note 12 (stating that “Western businesses are worried
China is freezing them out of this lucrative market, preferring to nurture its own
nascent industries without subjecting them to competition”); Keith Johnson,
Protectionist Breezes: Wind-Power Companies Cry Foul on China, WALL ST.
J. Blogs (May 28, 2009, 12:02 PM), http://blogs.wsj.com/environmentalcapi-
40 See JAMES MCGREGOR, CHINA’S DRIVE FOR “INDIGENOUS INNOVATION”: A WEB
ENDNOTES: CHINA’S GREENTECH PROGRAMS AND THE USTR INVESTIGATION continued from page 8
71 SUSTAINABLE DEVELOPMENT LAW & POLICY
OF INDUSTRIAL POLICIES 1, 15 (2009), www.apcoworldwide.com/content/PDFs/
Chinas_Drive_for_Indigenous_Innovation.pdf (providing a comprehensive
discussion of these policies); Julian L. Wong, How to Deal with Chinese Green
Protectionism: A U.S. Perspective, GREEN LEAP FORWARD (July 30, 2010), http://
ism-a-us-perspective/ (discussing the Medium-to-Long Term National Plan for
Science and Technology Development and the National Indigenous Innovation
Accreditation Program in the greentech context).
41 See, e.g., Andrew Peaple, For Foreigners, China’s Solar Market Is Cloudy,
WALL ST. J., Aug. 18, 2010, http://online.wsj.com/article/SB1000142405274870
4554104575434991356731852.html; Joe McDonald, U.S., Europe Look to China
for Clean Energy Sales, CHINA MINING (May 16, 2010), http://www.chinamining.
42 MCGREGOR, supra note 40, at 33.
43 Id. at 96.
44 See, e.g., Michael Kanellos, Innovalight Signs with Yingli for Second Chinese
Solar Deal, GREENTECH SOLAR (July 26, 2010), http://www.greentechmedia.com/
ing cooperation between Sunnyvale, California-based Innovalight, and Yingli
45 Chen Limin & Wan Zhihong, China’s Wind Energy Industry Sees Challenges,
CHINA DAILY, Feb. 22, 2010, http://www.chinadaily.com.cn/china/2010-02/22/
46 First Solar and Ordos Take Key Step Forward in 2GW China Project:
Cooperation Framework Agreement Signed During China-US Presidential
Summit, FIRST SOLAR (Nov. 17, 2009), http://investor.ﬁrstsolar.com/phoenix.
47 Julian L. Wong, Ctr. for Am. Progress Action Fund, The Challenge of China’s
Green Technology Policy and Ohio’s Response: Written Testimony Before
the U.S.-China Economic and Security Review Commission 9 (July 14, 2010),
wrt/10_07_14_wong_statement.pdf (discussing “success stories of American
companies such as First Solar, eSolar, and American Superconductor making
headway into the Chinese market”).
48 Pet. for Relief Under Section 301 of the Trade Act of 1974, as amended,
49 Stuart Biggs, Turbine Makers Face ‘Tough’ Market as Goldwind Slumps
(Update2), BLOOMBERG BUSINESSWEEK, June 21, 2010, http://www.businessweek.
update2-.html; Zhang Qi, Sun is Setting on China’s Solar Industry, CHINA
DAILY, Jan. 19, 2009, http://www.chinadaily.com.cn/bizchina/2009-01/19/con-
tent_7408525.htm (predicting a shakeout in the Chinese solar PV sector).
50 Dallas Kachan, China Has Already Surpassed the U.S. in Cleantech, SEEK-
ING ALPHA (Aug. 15, 2010), http://seekingalpha.com/article/220547-china-has-
51 China’s Renewable Energy Giants Look to IPO, NEW NET (Aug. 18, 2010),
52 Biggs, supra note 49.
53 Thomas Hout, China’s Renewable-Energy Clout, FORBES (July 30, 2010),
54 David Cyranoski, Renewable Energy: Beijing’s Windy Bet, 457 NATURE 372,
372 (2009), http://www.nature.com/news/2009/090121/pdf/457372a.pdf (“Wind-
turbine manufacturers and wind-farm developers everywhere have faced teething
problems, but China has perhaps faced more difﬁculties than most. Its wind farms
are much less efﬁcient than those in other leading countries [and] manufacturing
defects have plagued Chinese equipment . . . .”).
55 Hout, supra note 53 (calling the quality of Chinese turbines “questionable”);
Richard Lim, Julisa Mandeville, Ryan Petersen, Jon Saxon, Benjamin Vannier &
Tom Wuellner, Winds of Change: How China’s Government Supports Domestic
Wind Energy Providers, KELLOGG SCH. OF MGMT, NORTHWESTERN U. (Oct. 1,
tionalfocus/article/winds_of_change.aspx (“Chinese-made turbines cost up to
20% less than those of multinational manufacturers. However, ﬁeld data suggests
that Chinese turbines signiﬁcantly lag foreign products in quality, to the extent
that the long-term revenue sacriﬁced from lower quality (as measured by turbine
capacity factor) outweighs the upfront cost savings.”).
57 Bradsher, On Clean Energy, China Skirts Rules, supra note 12; see generally
Arnaud de la Tour, Matthieu Glachant & Yann Ménière, Innovation and Inter-
national Technology Transfer: The Case of the Chinese Photovoltaic Industry
(MINES ParisTech, Cerna Working Paper Series, Working Paper 2010-12),
58 de la Tour, Glachant & Ménière, supra note 57; Global Market Outlook for
Photovoltaics Until 2014: May 2010 Update, supra note 32, at 22 & ﬁg.23 (dem-
onstrating that China leads in production of cells and modules but trails in other
60 As but one example of this growth, see Herman K. Trabish, The Birth of a
U.S. Wind Power Manufacturing Industry, WIRED (Aug. 15, 2010), http://www.
wired.com/epicenter/2010/08/wind-power-industry/#ixzz0x5attOL6 (noting that
“ﬁve U.S. turbine manufacturers in operation in 2005 grew to 15 in 2009”).
61 Bradsher, On Clean Energy, China Skirts Rules, supra note 12 (“Because
China’s clean energy industry has relied so heavily on land deals and cheap state-
supported loans, the industry could be vulnerable if China’s real estate bubble
bursts, or if the banks’ loose lending creates ﬁnancial problems of the sort that
have plagued Western ﬁnancial markets in recent years.”).
62 See, e.g., Richard Brubaker, Chinese Employees are Going for More Frequent
Walks, ALL ROADS LEAD TO CHINA (July 19, 2010), http://www.allroadsleadto-
Rein, Three Big Trends Changing China for Multinationals, FORBES (Aug. 24,
63 Id. (noting a “bias in favor of local sourcing” because “shipping wind power
apparatus is heavy and awkward”); Trabish, supra note 60; Chinese Wind Tur-
bine Manufacturers’ Global Expansion: The Dream and The Reality, supra note
64 Wong, supra note 40, at 8; Bradsher, On Clean Energy, China Skirts Rules,
supra note 12 (“Many state and local governments in the United States have also
built roads, installed power lines and made other infrastructure improvements
that have increased the value of private land as part of programs to attract clean
energy. Tax holidays for such businesses are common in the United States, as in
65 US Cleantech Trade Mission Heads to China to Boost US Exports, ENERGY
CHINA FORUM (May 18, 2010), http://www.energychinaforum.com/news/35466.
66 Dan Harris, Why China Won’t Rule Tech., CHINA LAW BLOG (July 15, 2010),
that “[the] arguments are no different than the arguments that were being made
about Russia in the 1960s and about Japan in the 1980s and neither country is
really anywhere these days on the technology map”). See also Gady Epstein,
This Just In: China Economy Doing Better Than Japan, REUTERS (Aug. 16, 2010,
1:47AM) (observing that “we should remember Japan’s seeming invincibility
in the 1980’s and the stunning two decades of stagnation that followed when
we look at China now”). It would hardly be surprising if objections to Chinese
involvement in the United States looked remarkably similar to those of the 1980s
regarding Japanese investment. One recent report claims: “nothing in the review
of U.S. reactions to the boom in Japanese FDI suggests that the experience will
not be repeated in the case of another formidable East Asian nation, particularly
one that does not share many of the strategic, political and military common inter-
ests with the U.S. that muted and cabined the investment friction vis-à-vis Japan.”
Curtis J. Milhaupt, Is the U.S. Ready for FDI from China? Lessons from Japan’s
Experience in the 1980s, in INVESTING IN THE UNITED STATES: IS THE US READY
FOR FDI FROM CHINA? (Karl P. Sauvant ed., 2008), http://www.vcc.columbia.edu/
67 Charlie McElwee, Greentech Wars, CHINA ENVTL. L. (Dec. 4, 2009), http://
www.chinaenvironmentallaw.com (stating that “greentech war and competition
metaphors . . . seem quite stale, unreﬂective, and insincere to me”).
68 Kachan, supra note 50 (“China is making decisions quickly, and isn’t encum-
bered by democratic process.”); Todd Woody, The Next Great Leap Forward:
China Powers the Global Green Tech Revolution, GRIST (Jan. 11, 2010), http://
(“In a one-party state, a government ofﬁcial saying, ‘Make it so,’ can remove
obstacles to any given project and allocate resources for its development.”); 10
Reasons Why China is the Greentech Leader, SOLAR FEEDS (Aug. 27, 2010),
the-cleantech-leader (“And unlike a western democracy, when China’s central
leaders make up their minds, action follows quickly.”). As an example, the article
China Has Already Surpassed the U.S. in Cleantech notes that “in less time than
it took the U.S. DOE to do stage 1 of an application review for a 92 MW project
in New Mexico, China approved, signed and is ready to begin construction this
year on a 20 times bigger project.” Kachan, supra note 50. See also Bradsher, On
Clean Energy, China Skirts Rules, supra note 12 (noting that the Sunzone ﬁrm
obtained permits for and constructed a solar panel manufacturing plant in less
than a year, far shorter than the process would taken in the United States).
69 Martinot & Junfeng, supra note 34 (discussing impacts of recent policy
70 The four trillion RMB ($586 billion) package contained billions of dollars
worth of incentives for green projects. CHINA GREENTECH INITIATIVE, supra note
25, at 50, states that $31 billion of the stimulus package was for green invest-
ments. Caution about that ﬁgure is warranted. An analysis by Julian Wong shows
that “All that Glitters is Not Green,” in that “bullish” estimates of which speciﬁc
parts of the package would have green impact are overstated. Julian L. Wong,
How Green is China’s Stimulus Package, GREEN LEAP FORWARD (Mar. 3, 2010),
71 Eisen, supra note 1; Wong, supra note 40, at 7 (noting that with respect to
China’s greentech R&D programs, “while some of these programs have been in
place for nearly two decades, it is not clear that they are yielding the hoped-for
72 Bradsher, On Clean Energy, China Skirts Rules, supra note 12.
73 Pet. for Relief Under Section 301 of the Trade Act of 1974, as amended, 63.
74 Id. at 66-83.
75 Natalie Obiko Pearson, Chinese Government ‘Confused’ by U.S. Probe of
Green Aid, Trade Group Says, BLOOMBERG, Oct. 27, 2010, http://www.bloom-
76 Joel Kirkland, Tax Cuts, Renewable Energy Grants Attract
Unlikely Allies, N.Y. TIMES, Apr. 16, 2010, http://www.nytimes.com/
unl-12659.html (indicating that the largest program totals ﬁve billion dollars).
77 CHINA GREENTECH INITIATIVE, supra note 25, at 104 (noting that “substantial
policy divergence has occurred” in this area “at local levels across China”).
78 Jim Bai & Aizhu Chen, China Firms Offer $0.108/kWh Feed-In Rate in
Solar Tender:Source, REUTERS, Aug. 16, 2010, http://www.reuters.com/article/
79 Pet. for Relief Under Section 301 of the Trade Act of 1974, as amended,
80 Wang Mingyuan, Issues Related to the Implementation of China’s Energy
Law: Analysis of the Energy Conservation Law and the Renewable Energy Law
as Examples, 8 VT. J. ENVTL. L. 225, 248 (2007) (observing that “[t]he lack of
open, fair, regulated, and orderly market competition mechanisms in the energy
sector is a fundamental hindrance to renewable energy development and to the
Renewable Energy Law’s implementation”). SOEs continue to be an important
part of China’s economic landscape. See Michael Wines, China Fortiﬁes State
Businesses to Fuel Growth, N.Y. TIMES, Aug. 29, 2010, http://www.nytimes.
com/2010/08/30/world/asia/30china.html. For an intriguing analysis that China’s
reliance on SOEs will eventually undercut its economic growth, see Paul Den-
linger, China’s Outdated Practice of Capitalism, FORBES BLOGS (Aug. 24, 2010,
12:00 AM), http://blogs.forbes.com/china/2010/08/24/chinas-outdated-practice-
81 CHINA GREENTECH INITIATIVE, supra note 25, at 87.
82 See LI JUNFENG, SHI JINGLI, XIE HONGWEN, SONG YANQIN & SHI PENGFEI, A
STUDY ON THE PRICING POLICY OF WIND POWER IN CHINA 1-2 (2006), http://www.
policy%20china.pdf. Commenting on the report, Li Junfeng, Director of the
China Renewable Energy Industry Association, observed that in China, “wind
power is a new industry and it still needs support. The current pricing policy does
not match the goal of supporting wind development, and it has to be changed.”
A Study on the Pricing Policy of Wind Power in China, GLOBAL WIND ENERGY
COUNCIL, http://www.gwec.net/index.php?id=156 (last visited Oct. 6, 2010).
83 CHINA GREENTECH INITIATIVE, supra note 25, at 44 (listing the agencies and
their areas of responsibility).
84 Eric Savitz, Solar: China Feed-In-Tariff Could Be 2 Years Away, BAR-
RON’S BLOGS (Sept. 17, 2009, 2:43 PM), http://blogs.barrons.com/techtra-
projection was conﬁrmed by the prevalence of ad hoc bidding over the next two
years. See Jim Bai & Aizhu Chen, China Firms Offer $0.108/kWh Feed-in Rate
in Solar Tender: Source, REUTERS, Aug. 16, 2010, http://www.reuters.com/article/
idUSTRE67F2BJ20100816. See Wong, supra note 40 (noting that the mid-2010
bidding was the “latest indication that authorities are not quite ready with the idea
of a national feed-in tariff for solar”).
85 See, e.g., Development Trend of China’s Administrative Accountability Study,
FREE PAPER DOWNLOAD CTR. (July 3, 2010), http://www.hi138.com/e/?i72718
(noting that “China has just begun the implementation of administrative account-
86 Mingyuan, supra note 80, at 249 (noting that “as China is a large country with
unbalanced regional development, uniform national legislation often fails to con-
sider local characteristics and is not speciﬁc or adaptable to local needs”).
87 This marvelous bit of understatement is found in CHINA GREENTECH INITIATIVE,
supra note 25, at 91.
88 Mingyuan, supra note 80, at 237 (noting that “[s]ome localities and depart-
ments still compare expected growth rate goals, and only talk idly of energy con-
servation and environmental protection”).
89 Id. at 245 (observing that “most thermal power projects are larger in scale,
attract greater investment, bring about faster results, and are more proﬁtable than
renewable energy projects”).
90 CHINA GREENTECH INITIATIVE, supra note 25, at 92.
91 See generally David Shambaugh, China’s Propaganda System: Institutions,
Processes, and Efﬁcacy, 57 CHINA J. 25 (2007), http://web.rollins.edu/~tlairson/
china/chipropaganda.pdf. Shambaugh describes the Chinese propaganda sys-
tem as a “sprawling bureaucratic establishment, extending into virtually every
medium concerned with the dissemination of information.” Id. at 27. “Xinhua”
is the Xinhua News Agency, the ofﬁcial press agency of the People’s Republic
of China, which, Shambaugh notes, “has always had a dual role: to report news
and to disseminate Party and state propaganda.” Id. at 44. Many in the West cite
stories from Xinhua without this important context.
92 Jamie P. Horsley, China Adopts First Nationwide Open Government Infor-
mation Regulations, FREEDOMINFO.ORG (May 9, 2007), http://www.law.yale.edu/
(discussing the Regulations of the People’s Republic of China on Open Govern-
93 A 2010 workshop on transparency in reporting of environmental information
and accompanying report by the Natural Resources Defense Council found that
there had been a “good start on open information” but that the system had a long
way to go. Alex Wang, Assessing the State of Environmental Transparency in
China, SWITCHBOARD: NAT. RESOURCES DEF. COUNCIL STAFF BLOG (June 7, 2010),
94 Pet. for Relief Under Section 301 of the Trade Act of 1974, as amended, 78.
95 RENEWABLES, supra note 31, at 59.
96 REN21 RENEWABLE ENERGY POLICY NETWORK FOR THE 21ST CENTURY, RECOM-
MENDATIONS FOR IMPROVING THE EFFECTIVENESS OF RENEWABLE ENERGY POLICIES IN
CHINA 7 (2009), http://www.ren21.net/Portals/97/documents/Publications/Recom-
mendations_for_RE_Policies_in_China.pdf (noting that of the 586.7 terawatt-
hours (“TWh”) of electricity generated from renewables in China in 2008, all but
22.0 TWh came from hydropower projects).
97 David Biello, The Dam Building Boom: Right Path to Clean Energy?, YALE
ENV’T 360 (Feb. 23, 2009), http://e360.yale.edu/content/feature.msp?id=2119.
98 RENEWABLES, supra note 31, at 54 tbl.R2.
99 See CHINA GREENTECH INITIATIVE, supra note 25, at 87-88 (discussing reasons
for lower efﬁciency in earlier installed wind farms).
100 RENEWABLES, supra note 31, at 55 tbl.R4. China did have more installed capac-
ity per unit of gross domestic product, however. Wong, supra note 13.
101 CHINA GREENTECH INITIATIVE, supra note 25, at 36 ﬁg.21; see also LI JUNFENG,
WANG SICHENG, ZHANG MINJI & MA LINGJUAN, CHINA SOLAR PV REPORT 11 tbl.6
en.pdf (comparing China’s goal to estimates of installed PV capacity in other
102 RENEWABLES, supra note 31, at 55 tbl.R3.
103 CHINA GREENTECH INITIATIVE, supra note 25, at 36 ﬁg.21. The lower targets
are contained in the Medium and Long Term Development Plan for Renew-
able Energy, and the higher ﬁgures are based on reports of new targets likely to
be contained in the National Energy Administration’s ten-year plan. See, e.g.,
Kevin Mo, Go with Wind: China to Dramatically Boost its Wind Power Capac-
ity, Again, SWITCHBOARD: NAT. RESOURCES DEF. COUNCIL STAFF BLOG (July 21,
html. But see Charles McElwee, A Mighty Wind, CHINA ENVTL. L. (May 6, 2009),
(stating, “I’m not believing [new targets] until I see a formally amended copy of
China’s Medium & Long-Term Renewable Energy Development Plan”).
104 According to projections about increased 2020 targets, 300 GW of capac-
ity—far more than wind and solar combined—would be in hydropower. CHINA
GREENTECH INITIATIVE, supra note 25, at 36 ﬁg.21.
105 LI JUNFENG, WANG SICHENG, ZHANG MINJI & MA LINGJUAN, CHINA SOLAR PV
REPORT 11 tbl.6 (2007), www.wwfchina.org/english/downloads/ClimateChange/
china-pv-report-en.pdf (listing predictions for 2020).
SUSTAINABLE DEVELOPMENT LAW & POLICY73
106 RENEWABLES, supra note 31, at 28 (stating that Chinese asset ﬁnancing was
$29.2 billion in 2009, up from $22 billion in 2008 and nearly two times the U.S.
ﬁgure of $10.7 billion). See also Jeremy van Loon & Alex Morales, China Surges
Past U.S., Europe in Clean-Energy Asset Financing, BLOOMBERG BUSINESSWEEK,
July 13, 2010, http://www.businessweek.com/news/2010-07-13/china-surges-
107 THE PEW CHARITABLE TRUSTS, supra note 10.
108 Id. at 7 ﬁg.4.
109 Id. (noting that “[d]omestic policy decisions appear to have shifted the com-
petitive positions of G-20 member countries”).
110 China’s Power Generation Goes Greener with Total Capacity up 10%, XIN-
HUA NEWS AGENCY (Jan. 7, 2010), http://news.xinhuanet.com/english/2010-01/07/
content_12771880.htm (noting that coal-ﬁred power accounted for 74.6% of the
nation’s 874 million kW of electricity generation capacity in 2009); U.S. DEP’T
OF ENERGY, ENERGY INFO. ADMIN., INDEP. STATISTICS AND ANALYSIS, COUNTRY
ANALYSIS BRIEFS: CHINA (2009), http://www.eia.doe.gov/cabs/China/pdf.pdf (2006
data); Chunbo Ma & Lining He, From State Monopoly to Renewable Portfolio:
Restructuring China’s Electric Utility, 36 ENERGY POL’Y 1697, 1698 (2008),
111 CHINA GREENTECH INITIATIVE, supra note 25, at 40 (noting that “even if China
were to achieve its target of deriving 20% of energy from renewable sources by
2020, most of the non-renewable energy would still be derived from coal”); Ma
& He, supra note 110, at 1707.
112 CHINA GREENTECH INITIATIVE, supra note 25, at 32-33.
113 Shai Oster & Spencer Swartz, World News: Beijing Disputes IEA Data on
Energy, WALL ST. J., July 21, 2010, http://online.wsj.com/article/NA_WSJ_PUB
:SB10001424052748703720504575378243321158992.html (citing statistics
from the International Energy Agency that China used 2.252 billion tons of oil
equivalent in 2009 as compared to 2.17 billion tons of oil equivalent for the
United States); see also Ann Carlson, China’s Growth in Energy Usage Truly
Alarming, LEGAL PLANET: ENVT’L L. & POL’Y BLOG (May 7, 2010), http://legal-
ing/; Brian Rezny, Chinese Energy Cleans Up Its Act, SEEKING ALPHA (July 27,
(citing the report and Chinese criticism that the “second largest consumer” story
does not give enough weight to China’s greentech investments and carbon inten-
114 CHINA GREENTECH INITIATIVE, supra note 25, at 40; U.S. and China Vie for
Clean Energy Leadership, supra note 28.
115 CHINA GREENTECH INITIATIVE, supra note 25, at 38-39.
116 Two Energy Giants: A Contrast in Approach, INST. FOR ENERGY RES. (Apr. 22,
a-contrast-in-approach/ (illustrating, via tables, how Conventional Thermal Gen-
erating Capacity Additions in China outstripped all renewables additions—and
far outpaced non-hydropower renewables—between 2005-2008).
117 Woody, supra note 68; see also Two Energy Giants, supra note 116 (“The
size and scope of [China’s] investments in conventional forms of energy dwarf
their commitment to ‘green energy.’”).
118 Charlie McElwee, China Starts Construction on 13.6GW Coal-Fired Power
Base, CHINA ENVTL. L. (Aug. 10, 2009), http://www.chinaenvironmentallaw.
Chinese professor claims that provincial governments have stronger incentives to
build conventional plants than greentech facilities. Mingyuan, supra note 80, at
244-45 (“[E]ven though the State has made clear that renewable energy exploi-
tation and utilization is an area of high priority and that key public and private
actors are encouraged to be involved, some local governments are enthusiastic
about, and spare no effort in, starting thermal power plants, while renewable
energy generation projects are often ‘pending discussion.’ The objective cause of
this phenomenon is that most thermal power projects are larger in scale, attract
greater investment, bring about faster results, and are more proﬁtable than renew-
able energy projects.”).
119 2010 [National Energy Board Held the First Half of 2010, the Economic
Situation of the Energy Conference], [National Development and Reform Com-
mission], http://nyj.ndrc.gov.cn/ggtz/t20100721_362050.htm (last visited Oct. 6,
120 Keith Bradsher, China Outpaces U.S. in Cleaner Coal-Fired Plants, N.Y.
TIMES, May 10, 2009, http://www.nytimes.com/2009/05/11/world/asia/11coal.
121 See, e.g., Press Release, Bloomberg New Energy Finance, Joined At The Hip:
The US-China Clean Energy Relationship: Bloomberg New Energy Finance
Study Debunks Myths About US-China Clean Energy Relationship (May 19,
2010), http://bnef.com/Download/pressreleases/116/pdfﬁle/ (referencing a com-
ment by Michael Liebreich, CEO of Bloomberg New Energy Finance, that “[i]t
is easy to paint clean energy trade between the US and China in terms of winners
and losers, but the relationship deﬁes simplistic assumptions”).
122 See, e.g., Wong, supra note 47, at 11 (noting that “the ‘clean energy race’ is
not a zero-sum game”).
123 Bradford Plumer, Should We Start a Solar Panel Trade War with China?,
NEW REPUBLIC BLOG (Sept. 9, 2010, 4:10 PM), http://www.tnr.com/blog/77566/
should-we-start-solar-panel-trade-war-china (“a far more effective way to
strengthen the U.S. clean-energy industry would be to boost domestic demand
. . . than through a solar-panel trade war”).
124 See China and Climate Change, PEW CTR. ON GLOBAL CLIMATE CHANGE, http://
www.pewclimate.org/policy_center/international_policy/china.cfm (last visited
Oct. 6, 2010) (providing fact sheets on speciﬁc issues and strategies).
125 China’s President, Hu Jintao, stated in September that China’s next ﬁve-year
plan would include a new goal to reduce carbon intensity—CO2 emissions per
unit of GDP—from 2005 levels by 2020 by a “notable margin.” Julian L. Wong,
China’s Carbon Intensity Plans and its Impact on Climate Progress, GREEN LEAP
and-its-impact-on-climate-progress/ (last updated Sept. 30, 2009). In November
2009, it announced that number was a reduction of forty percent from 2005
levels by 2020. Edward Wong & Keith Bradsher, China Joins U.S. in Pledge of
Hard Targets on Emissions, N.Y. TIMES, Nov. 26, 2009, http://www.nytimes.
com/2009/11/27/science/earth/27climate.html. There are already signs that this
goal will be difﬁcult to meet. In early fall 2010, China was poised to miss a target
set by the 11th Five-Year Guidelines, CHINA GREENTECH INITIATIVE, supra note 25,
at 39, for reducing the energy intensity of its industries between 2005 and 2010
by twenty percent. China Closes Factories as Green Deadline Looms, ENERGY
CHINA FORUM (Aug. 24, 2010), http://www.energychinaforum.com/news/39598.
shtml. According to one consultant quoted in this article, “[i]f Beijing fails to hit
the 2010 target by a wide margin, its credibility on climate change commitments
will be subject to a great deal of international scepticism.” Id. (quoting Damien
Ma of the Eurasia Group consulting ﬁrm).
126 Studies by the McKinsey consulting ﬁrm and the United Kingdom’s Tyndall
Centre ﬁnd that under alternative scenarios of projected growth, China must
take drastic measures to reduce greenhouse gas emissions or suffer considerable
increases by 2030. TAO WANG & JIM WATSON, SUSSEX ENERGY GROUP & TYNDALL
CTR. FOR CLIMATE RESEARCH, CHINA’S ENERGY TRANSITION: PATHWAYS FOR LOW
CARBON DEVELOPMENT (2009), http://www.sussex.ac.uk/sussexenergygroup/docu-
ments/china_report_forweb.pdf; MCKINSEY & CO., CHINA’S GREEN REVOLUTION:
PRIORITIZING TECHNOLOGIES TO ACHIEVE ENERGY AND ENVIRONMENTAL SUSTAIN-
ABILITY 11 (2009), http://www.mckinsey.com/locations/greaterchina/mckonchina/
127 See, e.g., CTR. FOR AM. PROGRESS, A ROADMAP FOR U.S.-CHINA COLLABORATION
ON CARBON CAPTURE AND SEQUESTRATION 12 (2009), http://www.americanprogress.
org/issues/2009/11/pdf/china_ccs.pdf (observing that “[i]f these two countries
cannot ﬁnd a way to come together to jointly address the problems caused by
these emissions, it is highly unlikely that the world will be able to agree on a
strategy for effective mitigation any time soon”).
128 ENERGY INFO. ADMIN., U.S. DEP’T OF ENERGY, ANNUAL ENERGY REVIEW 343
tbl.11.19 (2008), http://www.eia.gov/FTPROOT/multifuel/038408.pdf (noting
that in 2006, China emitted 6,018 million metric tons (“MMT”) of CO2 compared
to the United States’ 5,903 MMT).
129 “China is on track to overwhelm the global effort to address climate change.”
Challenges and Opportunities for U.S.-China Cooperation on Climate Change
Before the Sen. Committee on Foreign Relations, 111th Cong. 16 (2009), http://
www.hsdl.org/?view&doc=113654&coll=0 (referencing a statement of Elizabeth
Economy, C.V. Starr Senior Fellow and Director, Asia Studies, Council on For-
130 Bradsher, On Clean Energy, China Skirts Rules, supra note 12 (citing com-
ments of Zhao Feng, Sunzone’s general manager, that “the world should appre-
ciate the generous assistance of Chinese government agencies to the country’s
clean energy industries. That support has made possible a sharp drop in the price
of renewable energy and has helped humanity address global warming”).
131 McElwee, supra note 67.
132 See, e.g., Press Release, Bloomberg New Energy Finance, supra note 121
(“The two nations may be in competition, but the big win for both of them would
be to drive the cost of a clean power generation below the cost of fossil fuels.”);
Christina Larson, America’s Unfounded Fears of a Green-Tech Race with China,
YALE ENV’T 360 (Feb. 8, 2010), http://e360.yale.edu/content/feature.msp?id=2238
(quoting Shanghai-based American entrepreneur Richard Brubaker’s statement
that “[t]he clean-tech war is overblown from the start” and discussing how “the
green-tech ‘race’ is not one that one side wins and the other loses, but a scenario
WINTER 2011 74
where partnerships are sought out and the ﬁnal equation doesn’t have to be a
zero-sum game”); Wong, supra note 47, at 11.
133 CHINA GREENTECH INITIATIVE, supra note 25, at 35.
134 The website of the United Nations Framework Convention on Climate Change
contains a wealth of information on global responses to climate change, including
the Kyoto Protocol, Copenhagen Accord, and many more documents. See UNITED
NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE, http://unfccc.int (last vis-
ited Oct. 6, 2010).
135 See, e.g., BRIC Countries’ Think-Tanks Discuss Climate Change, CHINA.
ORG.CN (Apr. 15, 2010), http://www.china.org.cn/world/nuclear_bric_sum-
136 There are many books, articles, and studies that analyze the U.S.-China
relationship, and it would take an entire bookshelf to list them all. See, e.g., Dan
Edwards, New China Books Roundup, BEIJINGER BLOG (Aug. 26, 2010, 12:00
A useful starting point for a list and brief discussion of the issues between the
two nations is KERRY DUMBAUGH, CONG. RESEARCH SERV., RL33877, CHINA-U.S.
RELATIONS: CURRENT ISSUES AND IMPLICATIONS FOR U.S. POLICY (2007), http://assets.
opencrs.com/rpts/RL33877_20071221.pdf. One recent ﬂashpoint has involved
censorship and the Internet. See, e.g., Jessica Guynn, Google Takes a Side Step in
Censorship Dance with China, CHI. TRIB., Mar. 22, 2010,
137 For general discussions of these meetings, see Michael Wines, In China,
Pelosi Calls for Cooperation On Climate, N.Y. TIMES, May 28, 2009,
http://www.nytimes.com/2009/05/28/world/asia/28pelosi.html; U.S. Experts Wel-
come China’s Pledge on Carbon Emission Cuts, XINHUA NEWS AGENCY (Nov. 27,
138 U.S.-China Strategic and Economic Dialogue, U.S. DEP’T OF TREASURY, http://
www.ustreas.gov/initiatives/us-china/ (last updated June 10, 2010). See CHINA
GREENTECH INITIATIVE, supra note 25, at 58, for a discussion of S&ED activities.
139 See Leaders’ Statement: The Pittsburgh Summit, PITTSBURGH SUMMIT, http://
www.pittsburghsummit.gov/mediacenter/129639.htm (last visited Sept. 6, 2010).
140 See Major Economies Forum on Energy and Climate, U.S. DEP’T. OF STATE,
http://www.state.gov/g/oes/climate/mem/ (last visited Sept. 6, 2010).
141 See, e.g., Andrew C. Revkin, China and U.S. Pledge Climate Teamwork, N.Y.
TIMES DOT EARTH BLOG (July 28, 2009, 6:19 PM), http://dotearth.blogs.nytimes.
com/2009/07/28/china-and-us-pledge-climate-teamwork/ (describing the July
2009 memorandum of understanding); Press Release, White House, Ofﬁce of
Press Sec’y, U.S.-China Joint Statement (Nov. 17, 2009), http://www.whitehouse.
gov/the-press-ofﬁce/us-china-joint-statement (section “V. Climate Change,
Energy and Environment” of “U.S.-China Joint Statement” following President
Obama’s trip to China in November 2009).
142 CHINA GREENTECH INITIATIVE, supra note 25, at 58 (discussing the importance
of the S&ED in this regard).
143 Hugh Gusterson, Secrecy, Authorship and Nuclear Weapons Scientists, in
SECRECY AND KNOWLEDGE PRODUCTION 57, 69 (Judith Reppy ed., 1999), http://
sional-paper23.pdf (discussing the “intense secretiveness of the Soviet state”).
144 Plumer, supra note 123.
145 Michael Levi, The Downside to Made in the USA, COUNCIL ON FOREIGN REL.,
Sept. 9, 2010, http://blogs.cfr.org/levi/2010/09/09/the-downside-to-made-in-the-
146 China has “associated with” (agreed in principle to) the Copenhagen Accord.
On the other hand, it believes “it is neither viable nor acceptable to start a new
negotiating process,” a stance which would reverse years of international work.
Arthur Max, China, India Join Copenhagen Accord, Last Major Emitters To
Sign On, HUFFINGTON POST (Mar. 9, 2010, 2:24 PM), http://www.hufﬁngtonpost.
com/2010/03/09/china-india-join-copenhag_n_491640.html (comments of Pre-
mier Wen Jiaboa).
147 See, e.g., Mark Lynas, How Do I Know China Wrecked the Copenhagen
Deal? I Was in the Room, GUARDIAN (Dec. 22, 2009), http://www.guardian.co.uk/
environment/2009/dec/22/copenhagen-climate-change-mark-lynas. Lynas’ argu-
ment was criticized by many who believed it unwise to ascribe sole blame to the
148 CHINA GREENTECH INITIATIVE, supra note 25, at 34 (noting that if China devel-
ops at its current pace, “international concerns over global warming would
increasingly be directed toward China”).
149 Wong, supra note 47 (noting that “[t]he United States risks falling behind not
just China, but other Asian and EU countries, because of its failure to create a
national long-term vision for clean energy development, and a supporting stable
policy framework to realize that vision”).
150 Id. (noting that “the United States has been tremendously successful in invent-
ing many important clean energy technologies, but has faired [sic] less well in
mass production and commercialization relative to the size of its economy”).
151 See, e.g., David L. Levy, The Political Economy of Renewable Energy in the
US and Europe, ALL ACAD. RES., http://www.allacademic.com//meta/p_mla_apa_
research_citation/0/7/2/5/7/pages72573/p72573-1.php (last visited Oct. 6, 2010)
(observing that “[renewables] policy in the US is characterized by fragmentation,
uncertainty, lack of coordination, a lack of substantive taxes or subsidies, and the
absence of a meaningful overall emissions reduction target”).
152 The National Renewable Energy Laboratory and the Pew Center on Global
Climate Change, among many others, have issued numerous publications on the
link between governmental policies and promotion of renewables. See NREL
Publications, Nat’l Renewable Energy Laboratory, http://www.nrel.gov/publica-
tions/ (last visited Oct. 6, 2010); PEW CTR. ON GLOBAL CLIMATE CHANGE, supra
note 124. A recent noteworthy report in the author’s home region is Marilyn A.
Brown et al., Renewable Energy in the South: A Policy Brief (Ga. Inst. of Tech.,
Sch. of Pub. Pol’y 2010, Working Paper No. 58, 2010), http://www.spp.gatech.
153 FRED SISSIN, CONG. RESEARCH SERV., RS22858, RENEWABLE ENERGY R&D
FUNDING HISTORY: A COMPARISON WITH FUNDING FOR NUCLEAR ENERGY, FOSSIL
ENERGY, AND ENERGY EFFICIENCY R&D (2008), http://www.nationalaglawcenter.
154 See Amanda Ruggeri, What the Stimulus Package Does for Renewable
Energy, U.S. NEWS & WORLD REP. (Mar. 6, 2009), http://politics.usnews.com/
energy.html (noting that the package contained “about $50 billion in spending
and $20 billion in tax provisions”); Daniel J. Weiss & Alexandra Kougentakis,
Recovery Plan Captures the Energy Opportunity, CTR. FOR AM. PROGRESS (Feb.
13, 2009), http://www.americanprogress.org/issues/2009/02/recovery_plan_cap-
tures.html (linking to a comprehensive spreadsheet detailing individual programs
and provisions); see also Joe Romm, The Entire American Economy, Including
Renewable Energy, Beneﬁtted from the Stimulus Bill, CLIMATE PROGRESS (Aug.
25, 2010), http://climateprogress.org/2010/08/25/the-entire-american-economy-
including-renewable-energy-beneﬁted-from-the-stimulus-bill (discussing the
impact of the stimulus package on the economy, including promotion of green-
155 See Zachary Shahan, Fossil Fuels Get Tons More in Subsidies than Renewable
Energy, CLEAN TECHNICA (July 31, 2010), http://cleantechnica.com/2010/07/31/
fossil-fuels-get-tons-more-in-subsidies-than-renewable-energy/ (noting that gov-
ernments devote more than ten times as much to subsidizing fossil fuel industries
than to solar and wind).
156 Romm, supra note 154 (discussing the potential for tax incentives to expire at
the end of 2010).
157 Candace Lombardi, U.S. Wind Energy Popular, But Lacks Investment,
CNET NEWS (July 28, 2010), http://news.cnet.com/8301-11128_3-20011926-54.
158 AM. WIND ENERGY ASS’N, AWEA MID-YEAR 2010 MARKET REPORT 3 (2010),
159 Angelique van Engelen, Obama Addresses Climate Change in Program Styled
on 1960s Space Race, GLOBAL WARMING IS REAL (May 5, 2009), http://www.
160 Wong, supra note 47.
161 David Roberts, On the Death of the Climate Bill, GRIST MAGAZINE, July 22,
163 See, e.g., Wong, supra note 47, at 10 (noting that “[i]nstead, what the United
States has is a patchwork of differing state and local policies, and federal policy
tools that are temporary and unpredictable”).
164 For descriptions of the wide variety of state programs, see U.S. States &
Regions, PEW CTR. ON GLOBAL CLIMATE CHANGE, http://www.pewclimate.
org/states-regions (last visited Oct. 6, 2010), and JONATHAN L. RAMSEUR,
CONG. RESEARCH SERV., RL33812, CLIMATE CHANGE: ACTION BY STATES TO
ADDRESS GREENHOUSE GAS EMISSIONS (2007), http://ncseonline.org/NLE/
165 See Lincoln Davies, Power Forward: The Argument for a National RPS,
42 CONN. L. REV. 1339, 1397 (2010); Joshua P. Fershee, Changing Resources,
Changing Market: The Impact of a National Renewable Portfolio Standard on
the U.S. Energy Industry, 29 ENERGY L.J. 49, 61 (2008).
166 Engelen, supra note 159.
167 Id. at 3.
SUSTAINABLE DEVELOPMENT LAW & POLICY75
23 DAVID J. HAYES, CENTER FOR AMERICAN PROGRESS, GETTING CREDIT FOR GOING
GREEN: MAKING SENSE OF CARBON “OFFSETS” IN A CARBON-CONSTRAINED WORLD
16 (2008), http://www.americanprogress.org/issues/2008/03/pdf/carbon_off-
24 See Conference of the Parties, Report of the Conference of the Parties on
its Fifteenth Session, Copenhagen, Den., Dec. 7-19, 2009, at Dec. 2/CP.15,
¶¶ 1-12, U.N. Doc. FCCC/CP/2009/11/Add. 1 (March 30, 2010) (noting the
25 See ALEXANDRE KOSSOY & PHILIPPE AMBROSSI, THE WORLD BANK, STATE AND
TRENDS OF THE CARBON MARKET 2 (2010) (summarizing issues facing the market
for the Clean Development Mechanism).
26 See Nathanial Gronewold, Chicago Climate Exchange Closes Nation’s First
Cap-and-trade System but Keeps Eye to the Future, E&E PUBLISHING (Jan. 3,
27 See KATHERINE HAMILTON ET AL., ECOSYSTEM MARKETPLACE &
BLOOMBERG NEW ENERGY FINANCE, STATE OF THE VOLUNTARY CARBON MARKETS,
at ii-iii, vi (2010) http://moderncms.ecosystemmarketplace.com/repository/
moderncms_documents/vcarbon_2010.2.pdf. In 2009, an estimated 93.7 million
tons of carbon or its equivalent were traded in voluntary market transactions,
totaling $387.4 million. Trades on the Chicago Climate Exchange (“CCX”)
accounted for almost half of the volume, but only thirteen percent of the
market share valued at $49.8 million. Over-the-counter (“OTC”) transactions
accounted for eighty-four percent of the market share, valued at approximately
$325.9 million; trades on other voluntary exchanges comprised the remainder.
Approximately ﬁfty-six percent of OTC transactions in the voluntary markets
originated in North America.
28 Id. at 57.
29 Id. at viii.
30 About VCS, VERIFIED CARBON STANDARD, http://www.v-c-s.org/about.html
(last visited Mar. 8, 2011). The full name of the VCS changed from Voluntary
Carbon Standard to Veriﬁed Carbon Standard in 2011; therefore reports cited
include the former designation while websites include the latter.
32 VCS Program Guidelines, VOLUNTARY CARBON STANDARD 5 (2008), http://
33 Id. at 4-5 (stating that “Real” means that the reductions actually occurred, “addi-
tional” means that the reductions are beyond a business-as-usual scenario, “con-
servative” means the assumptions and procedures will not over-estimate a given
project’s GHG impact, and “unique” means the reductions are not double counted).
34 About, CLIMATE REGISTRY, http://www.climateregistry.org/about.html (last
visited Jan. 8, 2011).
35 About Us, CLIMATE ACTION RESERVE, http://www.climateactionreserve.org/
about-us/ (last visited Jan. 8, 2011).
37 Id.; Frequently Asked Questions, CLIMATE ACTION RESERVE, http://www.cli-
mateactionreserve.org/resources/faqs/ (last visited Jan. 8, 2011).
38 AM. CARBON REGISTRY, http://www.americancarbonregistry.org/ (last visited
Jan. 8, 2011).
39 About Us, AM. CARBON REGISTRY, http://www.americancarbonregistry.org/
aboutus (last visited Jan. 8, 2011).
40 AM. CARBON REGISTRY, THE AMERICAN CARBON REGISTRY STANDARD, VERSION
2.1, at 5 (2010), http://www.americancarbonregistry.org/carbon-accounting/
ACR%20Standard%20v2.1%20Oct%202010.pdf (explaining that one ERT is
equal to one metric ton of carbon dioxide equivalent).
41 Id. at 7.
42 About Us, WINROCK INT’L, http://www.winrock.org/about_us.asp (last visited
Jan. 8, 2011).
43 See generally About The Gold Standard, THE GOLD STANDARD, http://www.
cdmgoldstandard.org/About-Gold-Standard.62.0.html (last visited Jan. 10,
2011) (including related links).
44 How We Got Started, THE GOLD STANDARD, http://www.cdmgoldstandard.
org/How-we-got-started.65.0.html (last visited Jan. 29, 2010).
45 What We Stand For, THE GOLD STANDARD, http://www.cdmgoldstandard.org/
What-we-stand-for.66.0.html (last visited Jan. 29, 2010).
46 See, e.g., CER Prices See Modest Gains, CARBON POSITIVE, (Oct. 24, 2007),
47 THE GOLD STANDARD, GOLD STANDARD BRAND MANUAL 1 (2009), http://www.
ENDNOTES: DUE PROCESS RIGHTS IN THE CARBON MARKETS continued from page 14
48 See, e.g., Kelly Levin et al., Can Non-State Certiﬁcation Systems Bolster
State-Centered Efforts to Promote Sustainable Development Through the Clean
Development Mechanism? 44 WAKE FOREST L. REV. 777, 778 (2009) (citing
Steven Bernstein & Benjamin Cashore, Can Non-State Global Governance
Be Legitimate? An Analytical Framework, 1 REG. & GOVERNANCE 347, 347-48
(2007)); Bernstein, supra note 1, at 105.
49 Levin et al., supra note 48, at 777-78; Bernstein, supra note 1, at 104; Ben-
jamin Cashore et al., Revising Theories of Nonstate Market-Driven (NSMD)
Governance: Lessons from the Finnish Forest Certiﬁcation Experience, GLOBAL
ENVTL POL., Feb. 2007, at 1.
50 See Cashore at al., supra note 49 at 2. Forest certiﬁcation is a means of iden-
tifying and certifying well-maintained forestland with a label, similar to a VER,
ERT, CRT, or VCU in the carbon market, that denotes the land as compliant
with a certain standard of stewardship thereby allowing products from certi-
ﬁed forest to demand a price premium in the relevant market. See Eric Hansen,
Michael P. Washburn & Jim Finley, Understanding Forest Certiﬁcation, SUS-
TAINABLE FORESTS P’SHIP, http://sfp.cas.psu.edu/pdfs/PS%20Underforestcert.pdf
(last visited Feb. 27, 2011).
51 See, e.g., Levin et al., supra note 48, at 778.
52 See, e.g., id.; Bernstein, supra note 1, at 106-07; Cashore et al., supra note
49, at 8.
53 Cashore et al., supra note 49, at 8 (emphasis omitted).
54 Id. (arguing that the ﬁrst prong of the test is the most important); Bernstein,
supra note 1, at 107 (stating that NSMDs are distinguishable from public-
55 See, e.g., Bernstein, supra note 1, at 107-09; Cashore et al., supra note 49, at
8; Levin, et al., supra note 48, at 778.
56 Cashore et al., supra note 49, at 8.
58 See, e.g., Levin et al., supra note 48, at 778; Bernstein, supra note 1, at 109-10.
59 See Bernstein, supra note 1, at 109.
60 See, e.g., id. at 110; Levin et al., supra note 48 at 778.
61 Bernstein, supra note 1, at 110.
62 See, e.g., id. at 110-11; Cashore et al., supra note 49, at 9; Levin et al., supra
note 48, at 778.
63 See Bernstein, supra note 1, at 110.
65 Charlotte Streck & Jolene Lin, Making Markets Work: A Review of CDM
Performance and the Need for Reform, 19 EUR. J. INT’L L. 409, 426 (2008).
66 Id. at 102-03.
67 Id. at 103.
70 See Levin et al., supra note 48, at 781-82. For a NSMD system to obtain
“political legitimacy” —deﬁned as “acceptance and [justiﬁcation] of [a] shared
rule by [the] community as appropriate and justiﬁed”—the NSMD system must
complete a three-step process. First, the NSMD system must be “initiated.”
This can be achieved through adoption of the NSMD system by ﬁrms that
already meet the standard’s criteria. Second, the market must build widespread
support for the NSMD system. This can be done through the relaxation of the
standard’s criteria, or, if the standard refuses to lower its barriers, competing
standards will develop. The competing standards may converge at a later stage
depending on market forces. Finally, the NSMD system will achieve “politi-
cal legitimacy” once business, social, and environmental interests look to the
NSMD system “as [a] legitimate arena in which to mediate disputes and
address policy problems.” Id. (quoting Steven Bernstein & Benjamin Cashore,
Can Non-State Global Governance Be Legitimate? An Analytical Framework,
1 REG. & GOVERNANCE 347, 361 (2007)). It is beyond the scope of this Article
to determine the political legitimacy of each certiﬁcation standard. However,
without a review process for aggrieved constituents, a certiﬁcation cannot rea-
sonably expect to be viewed as a forum “in which to mediate disputes.”
71 VOLUNTARY CARBON STANDARD, VOLUNTARY CARBON STANDARD 2007.1, at
4 (2008), http://www.v-c-s.org/docs/Voluntary%20Carbon%20Standard%20
72 Id. at 5. The VCS 2007.1 project cycle consists of six steps: (1) the project
proponent submits all project documents to the auditor; (2) the veriﬁer assesses
the project against VCS 2007.1 and writes a validation and, later, a veriﬁcation
WINTER 2011 76
report; (3) the VCS Registry Operator receives the project documents; (4) the
VCS Registry Operator reviews the project documents and submits them to the
VCS Project Database; (5) the VCS Project Database reviews the documents
and checks for issues such as double-counting; (6) the VCS Registry Operator
requests the registration fee and, once those are paid, issues VCUs to the project
73 See HAMILTON ET AL., supra note 27, at 68.
74 VCS Program Guidelines, supra note 32, at 7; See also The VCS Project
Database, VERIFIED CARBON STANDARD, https://vcsprojectdatabase1.apx.com/
myModule/rpt/myrpt.asp?r=208 (last visited Mar. 8, 2011) (listing the existing
twenty-seven validators and veriﬁers worldwide as of January 2011); Validators,
VERIFIED CARBON STANDARD, http://www.v-c-s.org/validators.html (last visited
Jan. 8, 2011) (explaining how parties become accredited veriﬁers and validators).
75 VCS Program Guidelines, supra note 32, at 7.
76 See Valerie Volcovici, US Voluntary Market to See Steady Demand:
Observers, POINT CARBON (Jan. 3, 2011) (stating that, to date, the California Air
Resources Board, which will manage California’s cap and trade program, has
only endorsed offset protocols from CAR).
77 See HAMILTON ET AL., supra note 27, at 68.
78 See generally CLIMATE ACTION RESERVE, VERIFICATION PROGRAM
MANUAL 53 (2010), http://www.climateactionreserve.org/wp-content/
79 AM. CARBON REGISTRY, supra note 40. Under ACR’s rules, a project pro-
ponent submits paperwork to ACR for an initial eligibility screening, which it
must pass, before the proponent can then seek out an ACR-approved veriﬁer to
validate the project as compliant with ACR’s standards and verify the integrity
of the GHG reductions involved in the project. ACR permits proponents to sub-
mit projects utilizing GHG measurement tools and methodologies of other stan-
dards, some of which have been preapproved as compliant with ACR’s rules,
while others will require case-by-case approval by an ACR Board. Once ACR
accepts the veriﬁcation report, the project will be registered in ACR’s database
and ERTs will be issued as they accrue and in accordance with the sums out-
lined in the veriﬁcation report.
80 See HAMILTON ET AL., supra note 27, at 68.
81 AM. CARBON REGISTRY, supra note 40, at 6 (last visited Jan. 8, 2011).
82 American Carbon Registry, Attestation of Veriﬁcation Body, AM. CARBON
REGISTRY, at 3-4, http://www.americancarbonregistry.org/carbon-accounting/
Attestation%20of%20Veriﬁcation%20Body%202010.pdf (last visited Jan. 29, 2011).
83 The GS project cycle requires that the project proponent host two meetings
with the project’s local host community to assess the impacts of the project. An
independent auditor must validate the project and the Gold Standard’s indepen-
dent Technical Advisory Committee (“GS TAC”) reviews the validation report.
If there are no issues, then the Gold Standard registers the project. Following
registration, a different independent auditor must periodically verify that the
claimed emissions reductions are occurring. The GS TAC will review the veri-
ﬁcation report, and if there are no issues, the Gold Standard will issue VERs to
the legal owner of the credits. See THE GOLD STANDARD FOUND., REQUIREMENTS
49-50 (2009), http://www.cdmgoldstandard.org/ﬁleadmin/editors/ﬁles/6_GS_
84 KATHERINE HAMILTON ET AL., ECOSYSTEM MARKETPLACE & BLOOMBERG NEW
ENERGY FINANCE, BUILDING BRIDGES: STATE OF THE VOLUNTARY CARBON MARKETS
2010, at 68 (2010), http://moderncms.ecosystemmarketplace.com/repository/
85 See THE GOLD STANDARD FOUND., TERMS AND CONDITIONS 4 (2009), http://
86 Id. at 10.
87 Peggy Rodgers Kalas & Alexia Herwig, Dispute Resolution Under the
Kyoto Protocol, 27 ECOLOGY L.Q. 53, 110-12 (2000) (assessing potential dis-
putes under the Clean Development Mechanism).
88 Id. at 111.
92 See United Nations Framework Convention on Climate Change Subsidiary Body
for Implementation, Twenty-sixth session, May 7–18, 2007, Views on Privileges
and Immunities for Individuals Serving on Constituted Bodies Established Under the
Kyoto Protocol, U.N. Doc. FCCC/SBI/2007/MISC.4 (Mar. 16, 2007), http://unfccc.
int/resource/docs/2007/sbi/eng/misc04.pdf (providing text of recommendations from
Brazil, the European Union, and Switzerland regarding the privileges and immunities
of Executive Board members to the Clean Development Mechanism).
93 Id. at 88, 103-05.
94 The International Centre for the Settlement of Investment Disputes is one
such example. See generally INT’L CTR. FOR THE SETTLEMENT OF INV. DISPUTES,
http://icsid.worldbank.org/ICSID/Index.jsp; see id. at 103-05 (discussing the
advantages and disadvantages of private arbitration under the Kyoto Protocol).
97 Id. (recommending an internal dispute mechanism as the most appropriate
forum for resolving certain disputes under the Kyoto Protocol).
98 Streck & Lin, supra note 65, at 410.
99 See KOSSOY & AMBROSSI, supra note 25, at 48 (summarizing issues facing the
100 See Streck & Lin, supra note 67, at 410-11.
101 See id. at 411.
102 See id. at 410-11.
103 See Procedures for Appeals, supra note 4.
104 VCS Program Guidelines, supra note 32, at 10; VOLUNTARY CARBON STAN-
DARD, supra note 71, at 10, 22. Also explaining that appeals for “micro-proj-
ects” will be governed by the International Standards Organisation.
105 See Registration Deed of Representation, VERIFIED CARBON STANDARD, http://
www.v-c-s.org/policydocs.html (last visited Jan. 8, 2011).
106 VCS Program Guidelines, supra note 32, at 10.
107 Id. at 7, 10. The VCS Association is a nonproﬁt organization under Swiss
law that legally represents the VCS Secretariat and Board. The VCS Associa-
tion is managed by the VCS Program, which has its own Secretariat that is
“resposible [sic] for responding to stakeholder queries, liaising with the media,
entering into contracts, managing relationships with VCS Registry operators
and accreditation bodies . . . .”
108 Id. at 10.
109 CLIMATE ACTION RESERVE, supra note 78, at 52-53.
110 Id. at 52.
111 Id. (stating that the committee must also contain at least two management
level staff members).
113 Id. at 53.
117 AM. CARBON REGISTRY, supra note 40, at 6.
118 See Press Release, The Gold Standard Found., The Gold Standard Founda-
tion Releases Proposed Appeals Procedure (July 19, 2010), http://www.cdm-
121 See THE GOLD STANDARD FOUND., RULES FOR APPEALS ON REGISTRATION, ISSU-
ANCE AND LABELING 4 (2010), http://www.cdmgoldstandard.org/ﬁleadmin/edi-
122 See Natalie L. Bridgeman & David B. Hunter, Narrowing the Accountability
Gap: Toward a New Foreign Investor Accountability Mechanism, 20 GEO. INT’L
ENVTL. L. REV. 187, 216 (2008).
123 Press Release, supra note 118.
124 See THE GOLD STANDARD FOUND., supra note 121, at 4.
125 Id. at 28-29.
126 Id.; John E. Noyes, Association of American Law Schools Panel on the
International Criminal Court, 36 AM. CRIM. L. REV. 223, 225 (1999). The
Permanent Court of Arbitration (PCA) was established during the 1899 Hague
Convention on the Paciﬁc Settlement of International Disputes as “an arrange-
ment involving a list of qualiﬁed arbitrators, an administrative structure, and
rules of procedure.” See History, PERMANENT COURT OF ARBITRATION, http://
www.pca-cpa.org/showpage.asp?pag_id=1044 (last visited Dec. 21, 2010).
The 1899 Convention was revised in 1907 at the Second Hague Peace Confer-
ence. Though considered a precursor to other International Courts such as the
Permanent Court of International Justice and the International Court of Justice,
the PCA has evolved into a “multi-faceted arbitral institution . . . situated at the
juncture between public and private international law . . . . Today the PCA pro-
vides services for the resolution of disputes involving various combinations of
states, state entities, intergovernmental organizations, and private parties.”
127 See THE GOLD STANDARD FOUND., supra note 121 at 8-12.
129 Id. at 14, 19.
130 Id. at 20-22.
SUSTAINABLE DEVELOPMENT LAW & POLICY77
111th Cong. (2009), http://www.govtrack.us/congress/bill.xpd?bill=s111-2729;
American Clean Energy Leadership Act of 2009, S. 1462, 111th Cong. (2009),
http://www.govtrack.us/congress/bill.xpd?bill=s111-1462; American Clean
Energy and Security Act of 2009, H.R. 2454, 111th Cong. (2009), http://www.
govtrack.us/congress/billtext.xpd?bill=h111-2454; see also NICOLA DURRANT,
LEGAL RESPONSES TO CLIMATE CHANGE (2010). But see America, China and
Climate Change: Let’s Agree to Agree, ECONOMIST (Nov. 21, 2009), http://www.
economist.com/displayStory.cfm?story_id=14915108 (arguing that the U.S.
Senate was not the only party to blame; the negotiations leading up to Copenha-
gen sabotaged it by increasing the number of things on the table for discussion).
8 Other jurisdictions, such as Australia, are currently embroiled in their
own attempts to enact climate change legislation, see, e.g., Carbon Pollution
Reduction Scheme Bill 2009 [No. 2], Oct. 29, 2009, ISSN 1328-8091 (Austl.),
and a suite of complementary legislative enactments (noting that they were all
defeated in the Australian Senate on December 2, 2009).
9 But see Gerald Traufetter, The US and China Joined Forces Against Europe,
SPIEGEL ONLINE (Dec. 8, 2010) (citing cables that the United States and China
worked together to prevent any binding agreement at Copenhagen); The Road
from Copenhagen: The Experts’ View, NATURE REPORTS CLIMATE CHANGE (Jan.
28, 2010), http://www.nature.com/climate/2010/1002/full/climate.2010.09.
html (noting that the outcome of the Copenhagen climate summit was merely
an agreement to meet again in twelve months in Mexico); Scott Barrett, How
to Prevent Climate Change Summit from Failure, YALEGLOBAL (May 1, 2009),
http://yaleglobal.yale.edu/content/prevent-climate-change (recommending the
United States to negotiate a skeleton agreement that lays a foundation to allow
for improvements over time).
10 See Stefan Theil, A Green Retreat: Why the Environment is No Longer a
Sureﬁre Political Winner, NEWSWEEK (July 12, 2010), http://www.newsweek.
com/2010/07/12/a-green-retreat.html (discussing the climate politics that have
slowed the movement towards meeting environmental goals); Climate-change
Policy: Let it Be, ECONOMIST (July 29, 2010), http://www.economist.com/
node/16693691 (noting that although President Obama instructed lawmakers
to “tackle our addiction to fossil fuels,” the energy bill unveiled on July 27,
2010 did not further that initiative); see also America’s Climate Policy: Capped,
ECONOMIST (July 31, 2010), http://www.economist.com/node/16693293 (stating
that although the Senate’s retreat from cap-and-trade may lead to a carbon tax, it
currently leaves “a dreadful mess”); Carbon Pollution Reduction Scheme, AUS-
TL. GOV’T DEP’T OF CLIMATE CHANGE & ENERGY EFFICIENCY (May 5, 2010), http://
www.climatechange.gov.au/media/whats-new/cprs-delayed.aspx (reporting that
the Prime Minister decided to delay the implementation of the Carbon Pollution
Reduction Scheme due to the lack of bipartisan support and slower process on
global action on climate change); Rudd Delays Carbon Scheme Until 2012,
SYDNEY MORNING HERALD (Apr. 27, 2010), http://www.smh.com.au/business/
(noting that the Senate is seven votes short of passing the carbon pollution
11 See Leaders: Cooling the Earth, ECONOMIST: THE WORLD IN 2011 (Nov. 22,
2010), http://www.economist.com/node/17492961 (arguing for the broaden-
ing of the climate change approach and for climate-ready development, even
if it is not climate-proof); Carbon Pollution Reduction Scheme, AUSTL. GOV’T
DEP’T OF CLIMATE CHANGE & ENERGY EFFICIENCY (May 5, 2010), http://www.
climatechange.gov.au/media/whats-new/cprs-delayed.aspx; COP 16: Cancun—
Corporate and Complicit, THE LAZY ENVIRONMENTALIST (Dec. 18, 2010), http://
complicit.html (arguing that the United Nations is no longer protecting the
interests of its people or the planet).
12 COP 16 / CMP 6, supra note 6.
13 Indeed, the recently concluded U.N. Climate Change Talks held in Cancún,
Mexico accept the inevitability of international and domestic failure to mitigate
anthropogenic climate change by adopting a number of mechanisms aimed at
adaptation to the effects of such climate change. See id.; Press Release, UN
Climate Change Conference in Cancún Delivers Balanced Package of Deci-
sions, Restores Faith in Multilateral Process, U.N. Press Release (Dec. 11,
application/pdf/pr_20101211_cop16_closing.pdf (detailing the components of
the Cancún Agreements).
14 See Climate Change, GALLUP (last visited Feb. 3, 2011), http://www.gallup.
com/tag/Climate%2bChange.aspx (providing synopses of current public per-
ceptions of climate change, biodiversity, clean water, and air quality).
15 Bjørn Lomborg, http://www.lomborg.com (last visited Feb. 4, 2011).
16 LOMBORG, supra note 6, at 1.
17 See Alan Ryan, Self-Ownership, Autonomy and Property Rights, 11 SOC.
PHIL. & POL’Y 241-58 (1994) (discussing the different theories of self-owner-
ship); Gerald Gaus, Property and Ownership, in OXFORD HANDBOOK OF POLITI-
CAL PHILOSOPHY 1-4 (David Estlund ed.) (forthcoming Mar. 2011), http://www.
gaus.biz/PropertyOwnership.pdf (last visited Feb. 4, 2011) (noting that the
liberal theory “stresse[s] an intimate connection between a free society and the
right to private property”); Joseph William Singer, How Property Norms Con-
struct the Externalities of Ownership, in PROPERTY AND COMMUNITY 57, 66-70
(Gregory S. Alexander & Eduardo M. Peñalver eds., 2010) (stating that norms,
or what Charles Taylor calls “social imaginaries,” shape one’s understanding of
legal institutions including private property).
18 See MICHAEL J. SANDEL, LIBERALISM AND ITS CRITICS 1 (1984) (discussing
different arguments concerning the freedom of choice and the weight of values,
such as toleration, freedom, and fairness, in making decisions); J.W. HARRIS,
LEGAL PHILOSOPHIES 277-300 (2nd ed. 2004).
19 See JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY 2 (2nd ed. 2005);
JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988); STEPHEN R. MUNZER,
A THEORY OF PROPERTY (1990).
20 See SINGER, supra note 19, at 2.
21 MARGARET JANE RADIN, REINTERPRETING PROPERTY 121-23 (1993). This
builds, of course, upon the groundbreaking work of Anthony M. Honoré, Own-
ership, in, OXFORD ESSAYS IN JURISPRUDENCE 107 (A.G. Guest ed., 1961), who
identiﬁed eleven ‘standard incidents’ of ownership.
22 This begins with John Stuart Mill’s “self-regarding act.” JOHN STUART MILL,
ON LIBERTY (Gertrude Himmelfarb ed., 1974 (1859)); see also Singer, supra
note 17 (outlining how property norms assist in determining the difference
between a truly self-regarding act and one that is not); MUNZER, supra note 19,
at 3-9 (arguing for a pluralist approach to property).
23 See generally WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS
AS APPLIED IN JUDICIAL REASONING: AND OTHER LEGAL ESSAYS (Walter W. Cook
ed., 1919), http://www.archive.org/stream/fundamentallegal00hohfuoft/fun-
damentallegal00hohfuoft_djvu.txt (providing the journal articles in published
book format); Wesley Newcomb Hohfeld, Some Fundamental Legal Concep-
tions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917) (continuing the
earlier discussion of basic legal concepts).
24 C. Edwin Baker, Property and its Relation to Constitutionally Protected
Liberty, 134 U. PA. L. REV. 741, 742-43 (1986) (emphasis added).
25 See Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8, 13
26 See ROBERTO M. UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 36 (1986).
27 Cf. Singer, supra note 17, at 59 (juxtaposing the castle or ownership concep-
tion of property with the environmental or good neighbor conception).
28 UNGER, supra note 26, at 37-38.
29 Id. at 38.
30 Singer, supra note 17, at 60-61.
31 See JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 204
32 DUNCAN KENNEDY, SEXY DRESSING ETC. 90-91 (1993) (emphasis in original).
33 Id. at 91 (internal quotations omitted).
34 Id. (emphasis in the original, footnotes removed).
35 I am most grateful to Joseph William Singer for bringing this crucial point
to my attention. See also PROPERTY AND COMMUNITY (Gregory S. Alexander &
Eduardo M. Peñalver eds., 2010), and the essays collected therein.
36 For additional information on social-legal relationships, see WILLIAM TWIN-
ING, GENERAL JURISPRUDENCE: UNDERSTANDING LAW FROM A GLOBAL PERSPECTIVE
1-7 (2009), http://www.ucl.ac.uk/laws/academics/proﬁles/twining/gen_juris.pdf.
37 See Steve Lonergan, The Human Challenges of Climate Change, in HARD
CHOICES: CLIMATE CHANGE IN CANADA 45 (Harold Coward & Andrew J. Weaver
eds., 2004) (arguing that changing land use and increased fossil fuel consump-
tion are primary contributors to GHG).
38 Id. at 51–53.
39 See Jedediah Purdy, Climate Change and the Limits of the Possible, 18
DUKE ENVTL. L. & POL’Y F. 289 (2008).
40 Cf. Lonergan, supra note 37, at 50 (noting that it will be necessary “to ﬁnd
a way to maintain a reasonable level of global economic output while reducing
our level of fossil-fuel energy consumption”).
ENDNOTES: CLIMATE CHANGE: GOVERNMENT, PRIVATE PROPERTY, AND INDIVIDUAL ACTION continued from page 21
WINTER 2011 78
41 However, alternative sources of energy such as solar panels are available to
42 IPCC, 2007: Summary for Policymakers, in CLIMATE CHANGE 2007: IMPACTS,
ADAPTATION AND VULNERABILITY CONTRIBUTION OF WORKING GROUP II TO THE
FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE
CHANGE 7, 7 (Martin Parry et al. eds., 2007), http://www.ipcc.ch/pdf/assess-
43 JEDEDIAH PURDY, A TOLERABLE ANARCHY: REBELS, REACTIONARIES, AND THE
MAKING OF AMERICAN FREEDOM 187 (Alfred A. Knopf ed., 2009).
ENDNOTES: IS REDD ACCOUNTING MYOPIC? continued from page 31
44 See Lonergan, supra note 37, at 51 (arguing that climate change results in
47 MIKE HULME, WHY WE DISAGREE ABOUT CLIMATE CHANGE: UNDERSTANDING
CONTROVERSY, INACTION AND OPPORTUNITY 362 (2009).
48 See generally JAMES HANSEN, STORMS OF MY GRANDCHILDREN: THE TRUTH
ABOUT THE COMING CLIMATE CATASTROPHE AND OUR LAST CHANCE TO SAVE HU-
See generally UN-REDD PROGRAMME, http://www.un-redd.org (last visited
Jan. 3, 2011).
About REDD+, UN-REDD PROGRAMME, http://www.un-redd.org/
AboutREDD/tabid/582/Default.aspx (last visited on Dec. 30, 2010).
MILLER, supra note 9.
Market Failures and Externalities, BASIC ECONOMICS, http://www.basi-
ceconomics.info/market-failures-and-externalities.php (last visited Feb. 10,
2011) (deﬁning an externality, which can either be positive or negative, as the
action of one economic agent impacting another economic agent not directly
involved, such as pollution, which is as an example of a negative externality);
Franz Gatzweiler, Economic Values, Institutions and Ecosystems–The Shift
from Natural to Social Value and Why Culture Matters (2003) (unpublished
gatzweiler_paper.pdf (explaining the issues of applying market based valuation
techniques to ecosystems).
See Environmental Pricing Reform, EIONET–THE EUROPEAN TOPIC CTR. ON
SUSTAINABLE CONSUMPTION & PRODUCTION, http://scp.eionet.europa.eu/deﬁni-
tions/Environmental%20pricing%20reform (last updated Dec. 8, 2009) (deﬁn-
ing environmental pricing reform (“EPR”) as “the process of adjusting market
prices to include environmental costs and beneﬁts”).
Crystal Davis, Protecting Forests to Save the Climate: REDD Challenges
and Opportunities, WORLD RESOURCES INST. (Apr. 23, 2008, 3:12 PM), http://
See David Pimentel et al., Environmental and Economic Cost of Soil Ero-
sion and Conservation Beneﬁts, 267 SCIENCE 1117, 1117 (1995), http://www.
sciencemag.org/content/267/5201/1117.abstract (explaining how forests
mitigate soil erosion); MICHAEL T. COE ET AL., ECOLOGICAL CO-BENEFITS: PAN-
AMAZON DEFORESTATION, REGIONAL CLIMATE, AND WATER RESOURCES, THE WOODS
HOLE RESEARCH CENTER 1 (2009), http://www.whrc.org/policy/pdf/cop15/
Coe_A80.pdf (describing how a forest requires more water than the ﬂora that
replaces it and thus the water cycle decreases); Rebecca Lindsey, Tropical
Deforestation, EARTH OBSERVATORY (2007), http://earthobservatory.nasa.gov/
Features/Deforestation/ (noting that although forests cover roughly seven per-
cent of the Earth’s dry land, they may contain half of the species on Earth).
See, e.g., Pimentel et al., supra note 16; COE ET AL., supra note 16; Lindsey,
supra note 16 (illustrating how the current REDD program does not recognize
soil formation, water cycle storage and release, biodiversity conservation, or
See Lynn Scarlett, Cleaner, Safer, Cheaper, 27 ENVT’L. FORUM 34 (2010)
(“the City of New York invested over $1.5 billion to protect and restore the
Catskill Mountain watershed to sustain the city’s water quality, rather than
spending up to $9 billion on ﬁltration plants”).
See José Maria Cardoso Da Silva et al., The Fate of the Amazonian Areas
of Endemism, 19 CONSERVATION BIOLOGY 689, 690 (2005) (“Amazonia is the
largest and most diverse of the tropical forest wilderness areas . . . recent com-
pilations indicate at least 40,000 plant species, 427 mammals, 1,294 birds, 378
reptiles, 427 amphibians, and around 3,000 ﬁshes.”).
See COMM’N ON GENETIC RES. FOR FOOD & AGRIC., FOOD & AGRICULTURE
ORG. OF THE UNITED NATIONS, FOREST GENETIC RESOURCES–BRINGING SOLUTIONS
TO SUSTAINABLE FOREST MANAGEMENT (2009), http://www.fao.org/docrep/012/
al387e/al387e00.pdf (“[T]he vast majority of forest genetic diversity remains
unknown, especially in tropical forests. Estimates of the number of tree species
vary from 80,000 to 100,000, yet fewer than 500 have been studied in any depth
for their present and future potential.”).
Pimentel et al., supra note 16, at 1119.
See id. at 1118; Peter M. Vitousek, Nutrient Cycling in Moist Tropical For-
est, 17 ANN. REV. OF ECOLOGY & SYSTEMATICS, 137, 160 (1986), http://www.
jstor.org/stable/pdfplus/2096992.pdf (noting that “[m]oderately fertile soils sup-
port productive forests that cycle large quantities of nutrient elements”).
The International Union for Conservation of Nature, Forest Environmental
Services, THE ENCYCLOPEDIA OF EARTH (Aug. 22, 2008, 3:09 AM), http://www.
See id. (providing different policy recommendations and concerns).
See id. (concluding that REDD’s negative externalities—including threats to
soil formation, water cycle storage and release, biodiversity conservation, and
nutrient recycling—must be internalized).
See JAMES LOVELOCK, GAIA: A NEW LOOK AT LIFE ON EARTH 10 (2000) (deﬁn-
ing homeostasis (Gaia hypothesis) as, “a complex entity involving the Earth’s
biosphere, atmosphere, oceans, and soil; the totality constituting a feedback or
cybernetic system which seeks an optimal physical and chemical environment
for life on this planet”).
Market Failures and Externalities, supra note 13.
Environmental Pricing Reform, supra note 14. Sven Wunder, Principal Sci-
entist, Forests and Livelihoods Program at the Center for International Forestry
Research (“CIFOR”), has put forward a widely accepted deﬁnition for PES.
See, e.g., Douglas Southgate & Sven Wunder, Paying for Watershed Services
in Latin America: A Review of Current Initiatives, 28 J. OF SUSTAINABLE FOR-
ESTRY 497, 498 (2009) (describing PES in terms of ﬁve characteristics: “[1.]
There is a well-deﬁned environmental service (e.g., speciﬁc changes in peak- or
dry-season stream ﬂow at the outlet of a watershed) or a suitable proxy for this
service (e.g., [hectares] reforested). [2.] There is at least one buyer of this ser-
vice or proxy. [3.] There is at least one seller as well. [4.] Transactions between
buyer(s) and seller(s) are voluntary. [5.] Payments are conditional on contracted
environmental services or proxies for same actually being supplied.”).
See generally Southgate & Wunder, supra note 29, at 497.
About REDD+, supra note 11.
Lindsey, supra note 16.
FOREST TRENDS, THE KATOOMBA GROUP, & UNEP, PAYMENTS FOR ECOSYSTEM
SERVICES: GETTING STARTED A PRIMER 3 (2008), http://www.katoombagroup.org/
See GLOBAL FOREST RESOURCES ASSESSMENT, FOOD & AGRIC. ORG. OF THE
UNITED NATIONS 19 (2005), ftp://ftp.fao.org/docrep/fao/008/A0400E/A0400E00.
See The World Factbook: Greece, CENT. INTELLIGENCE AGENCY, https://www.
cia.gov/library/publications/the-world-factbook/geos/gr.html (last visited Nov.
See State & County QuickFacts of New York, U.S. CENSUS BUREAU, http://
quickfacts.census.gov/qfd/states/36000.html (last updated Nov. 4, 2010).
See GERT JAN NABUURS ET AL., FORESTRY IN CLIMATE CHANGE 2007: MITIGA-
TION, IPCC FOURTH ASSESSMENT REPORT 546 (2007), http://www.ipcc.ch/pdf/
See About REDD+, supra note 11.
See CHARLIE PARKER ET AL., THE LITTLE REDD+ BOOK, LIST OF PROPOS-
ALS 1 (2009), http://www.globalcanopy.org/themedia/ﬁle/PDFs/LRB_lowres/
lrb_en.pdf (proving a list–Countries: Alliance of Small Island States (AOSIS);
Australia; Brazil; Canada; Coalition for Rainforest Nations (CfRN); China;
Colombia; Central African Forest Commission (COMIFAC); European Union
(EU); India; Indonesia; Japan; Malaysia; Mexico; New Zealand; Norway;
Panama; Tuvalu; USU; and Organizations: CATIE (Nested Approach); CCAP
(Dual Markets); CSERGE (Combined Incentives); EDF & IPAM & ISA (Com-
pensated Reductions); Greenpeace (TDERM); HSI (Carbon Stores); IDDRI &
CERDI (Compensated Successful Efforts); IIASA Avoiding REDD Hot Air;
Joanneum Research (Corridor Approach); JRC (Incentive Accounting); TCG
SUSTAINABLE DEVELOPMENT LAW & POLICY79
(Terrestrial Carbon); TNC (Integrated Incentives); WHRC (Stock-Flow with
See id. at 20.
See id. at 26-27.
See Kyoto Protocol to the United Nations Framework Convention on Cli-
mate Change, Annex A, Dec. 10, 1997, 37 I.L.M. 22 [hereinafter Kyoto Proto-
See id. at art. 3(3) (“The net changes in greenhouse gas emissions by
sources and removals by sinks resulting from direct human-induced land-use
change and forestry activities, limited to afforestation, reforestation and defor-
estation . . . .”).
See id. at art. 3(4) (“The Conference of the Parties serving as the meeting
of the Parties to this Protocol shall, at its ﬁrst session or as soon as practicable
thereafter, decide upon modalities, rules and guidelines as to how, and which,
additional human-induced activities related to changes in greenhouse gas emis-
sions by sources and removals by sinks in the agricultural soils and the land-
use change and forestry categories shall be added to, or subtracted from, the
assigned amounts for Parties included in Annex I . . . .”).
See Conference of the Parties to the Kyoto Protocol, Buenos Aires, Arg.,
Nov. 2-14, 1998, Report of the Conference of the Parties on its Fourth Session,
Decision 9/CP.4, U.N. Doc FCCC/CP/1998/16/Add.1 (Jan. 25, 1999), http://
unfccc.int/resource/docs/cop4/16a01.pdf (addressing LULUCF speciﬁcally).
See Conference of the Parties to the Kyoto Protocol, The Hague, Neth.,
Nov. 13-25, 2000, Report of the Conference of the Parties on the First Part of
its Sixth Session, Decision 1/CP.6 Annex, Note by the President of the Confer-
ence of the Parties at its sixth session, Box C, U.N. Doc FCCC/CP/2000/5/
Add.2 (Apr. 4, 2001) [hereinafter COP-6], http://unfccc.int/resource/docs/
cop6/05a02.pdf (“Parties decide that for deﬁning afforestation, reforesta-
tion and deforestation [forestry activities] the set of IPCC deﬁnitions shall be
50 See id. at Decision 1/CP.6 Box C. Land-use, Land-use change and forestry
(“Parties agree that for the implementation of Article 3.3 [of the Kyoto Proto-
col], ‘forest’ is deﬁned in accordance with the FAO deﬁnition.”); see also The
Forest Resources Assessment Programme, FOOD & AGRIC. ORG. OF THE UNITED
NATIONS, http://www.fao.org/docrep/007/ae217e/ae217e00.htm (last visited
Feb. 3, 2010) (deﬁning forests as “Land with tree crown cover (or equivalent
stocking level) of more than 10 percent and area of more than 0.5 hectares (ha).
The trees should be able to reach a minimum height of 5 meters (m) at maturity
in situ. May consist either of closed forest formations where trees of various
stories and undergrowth cover a high proportion of the ground; or open for-
est formations with a continuous vegetation cover in which tree crown cover
exceeds 10 percent. Young natural stands and all plantations established for
forestry purposes which have yet to reach a crown density of 10 percent or tree
height of 5 m are included under forest, as are areas normally forming part of
the forest area which are temporarily unstocked as a result of human interven-
tion or natural causes but which are expected to revert to forest.”).
See Conference of the Parties to the Kyoto Protocol, Marrakesh, Morocco,
Oct. 29-Nov. 10, 2001, Report of the Conference of the Parties on its Seventh
Session, Decision 11/CP.7 Annex, P 1(b)-(c), U.N. Doc FCCC/CP/2001/13/
Add.1 (Jan. 21, 2002) [hereinafter COP-7 Report–Part Two (Volume I)] http://
unfccc.int/resource/docs/cop7/13a01.pdf; see also Conference of the Parties
Serving as the Meeting of the Parties to the Kyoto Protocol, Montreal, Can.,
Nov. 28-Dec. 10, 2005, Report of the Conference of the Parties Serving as
the Meeting of the Parties to the Kyoto Protocol on its First Session, Decision
16/CMP.1 Annex, P 6, U.N. Doc FCCC/KP/CMP/2005/8/Add.3 (Mar. 30,
2006) [hereinafter COP/MOP-1 Report-Part Two] http://unfccc.int/resource/
Conference of the Parties to the Kyoto Protocol, Bali, Indon., Dec. 3-15,
2007, Report of the Conference of the Parties on its Thirteenth Session, Deci-
sion 2/CP.13, U.N Doc. FCCC/CP/2007/6/Add.1 (Mar. 14, 2008) [herein-
after COP-13 Addendum-Two] http://unfccc.int/resource/docs/2007/cop13/
See id. at 1/CP.13 1(b)(iii).
See John M. Broder & Elisabeth Rosenthal, U.N. Ofﬁcial Says Climate Deal
is at Risk, N.Y. TIMES (Jan. 20, 2010), http://www.nytimes.com/2010/01/21/sci-
United Nations Framework Convention on Climate Change, 15th Con-
ference of the Parties, Copenhagen, Den., Dec. 7-19, 2009, Copenhagen
Accord, 2/CP.15.6, in Addendum, Part Two: Action Taken, U.N. Doc. FCCC/
CP/2009/11/Add.1 (Mar. 30, 2010) [hereinafter COP-15 Addendum-Two]
56 The Copenhagen Accord also provided “new and additional resources . . .
approaching USD 30 billion” during 2010 to 2012 on climate change mitiga-
tion approaches including REDD+ programs. See COP-15 Addendum-Two,
supra note 55, at 2/CP.15.6, 2/CP.15.8. During COP-15, REDD was discussed
in two bodies, SBSTA-31 and AWG-LCA-8. The REDD text recognized by
the Copenhagen Accord was from the SBSTA-31, which produced draft text
on the methodological issues of REDD. However, the Copenhagen Accord
did not include the AWG-LCA-8 draft text on policy approaches and positive
incentives of REDD. See, e.g., United Nations Framework Convention on Cli-
mate Change, 15th Conference of the Parties, Copenhagen, Den., Dec. 7-19,
2009, Methodological Guidance for Activities Relating to Reducing Emissions
from Deforestation and Forest Degradation and the Role of Conservation,
Sustainable Management of Forests and Enhancement of Forest Carbon Stocks
in Developing Countries, Subsidiary Body for Scientiﬁc and Technological
Advice, Draft decision -/CP.15 (Advanced unedited version), http://unfccc.
int/ﬁles/na/application/pdf/cop15_ddc_auv.pdf (illustrating the SBSTA draft
text that would be incorporated into the Copenhagen Accord); United Nations
Framework Convention on Climate Change, 15th Conference of the Parties,
Copenhagen, Den., Dec. 7-19, 2009, Policy Approaches and Positive Incentives
on Issues Relating to Reducing Emissions from Deforestation and Forest Deg-
radation in Developing Countries; and the Role of Conservation, Sustainable
Management of Forests and Enhancement of Forest Carbon Stocks in Devel-
oping Countries, Ad Hoc Working Group On Long-Term Cooperative Action
Under The Convention, Eighth session, Draft decision -/CP.15, U.N. Doc.
FCCC/AWGLCA/2009/L.7/Add.6 (Dec. 15, 2009) http://unfccc.int/resource/
docs/2009/awglca8/eng/l07a06.pdf (illustrating the deﬁciencies in the AWG-
LCA, which does not implement (1) target measures to stop deforestation, (2)
long-term ﬁnance commitments, (3) strong safeguards, (4) strong mitigation
tools to prevent leakage, or (5) discuss free, prior and informed consent by
indigenous peoples); COP-15 Addendum-Two, supra note 55 (illustrating the
incorporation of the SBSTA draft text but lack of incorporation of the AWG-
LCA draft text into the Copenhagen Accord).
The concern over these deﬁciencies were reinforced when over twenty thou-
sand people and one hundred twenty-ﬁve countries attended The World Peo-
ple’s Conference on Climate Change and the Rights of Mother Earth hosted by
the government of Bolivia in April 2010. See Andres Schipani, Evo Morales’
Message to Grassroots Climate Talks – Planet or Death, GUARDIAN (Apr.
21, 2010, 16:19 BST), http://www.guardian.co.uk/environment/2010/apr/21/
evo-morales-grassroots-climate-talks. The World People’s Conference voiced
ardent concern over the developments occurring under the UNFCCC generally,
the deﬁnition of forests, and the progression of the market based REDD pro-
gram. See, e.g., World People’s Conference on Climate Change and the Rights
of Mother Earth, Cochabamba, Bol., Apr. 22, 2010, Proposal Universal Dec-
laration of the Rights of Mother Earth, art. 3(2)(i) (2010), http://pwccc.word-
press.com/programa/ (“(2) Human beings, all States, and all public and private
institutions must: (i) establish precautionary and restrictive measures to prevent
human activities from causing species extinction, the destruction of ecosystems
or the disruption of ecological cycles”); see also World People’s Conference on
Climate Change and the Rights of Mother Earth, Cochabamba, Bol., Apr. 22,
2010, Peoples Agreement (2010) http://pwccc.wordpress.com/support/ (“The
deﬁnition of forests used in the negotiations of the United Nations Framework
Convention on Climate Change, which includes plantations, is unacceptable.
Monoculture plantations are not forests. Therefore, we require a deﬁnition for
negotiation purposes that recognizes the native forests, jungles and the diverse
ecosystems on Earth.” “We condemn market mechanisms such as REDD
(Reducing Emissions from Deforestation and Forest Degradation) and its ver-
sions + and + +, which are violating the sovereignty of peoples and their right
to prior free and informed consent as well as the sovereignty of national States,
the customs of Peoples, and the Rights of Nature.”).
See Conference of the Parties to the Kyoto Protocol, Advance Unedited
Version, Draft decision -/CP.16 Outcome of the Work of the Ad Hoc Working
Group on Long-Term Cooperative Action Under the Convention, III.C. [herein-
after COP-16 AWG-LCA] http://unfccc.int/ﬁles/meetings/cop_16/application/
Id. at III.C.70.
See id. at III.C.71(a).
Id. at III.C.71(c).
Id. at III.C.72.
See id. at III.C.
See RICHARD BETTS ET AL., FORESTS AND EMISSIONS: A CONTRIBUTION TO THE
ELIASCH REVIEW 4 (2008) http://www.ibcperu.org/doc/isis/11467.pdf (indicating
WINTER 2011 80
that there are uncertainties in both the estimated rate of deforestation and with
forest carbon stocks).
See PARKER ET AL., supra note 42, at 21.
See R. DEFRIES ET AL., TROPICAL DEFORESTATION AND CLIMATE CHANGE: CHAP-
TER THREE MONITORING TROPICAL DEFORESTATION FOR EMERGING CARBON MARKETS
35 (Paulo Moutinho & Stephan Schwartzman eds., 2005), http://www.edf.org/
See U.S. GOV’T. ACCOUNTABILITY OFFICE, CARBON OFFSETS: THE U.S. VOL-
UNTARY MARKET IS GROWING, BUT QUALITY ASSURANCE POSES CHALLENGES FOR
MARKET PARTICIPANTS 2-3 (2008), http://www.gao.gov/new.items/d081048.
pdf (reviewing the issues of additional, measurement, veriﬁcation, and perma-
nence); see also JONATHAN L. RAMSEUR, CONG. RESEARCH SERV., CRS REPORT FOR
CONGRESS–THE ROLE OF OFFSETS IN A GREENHOUSE GAS EMISSIONS CAP-AND-TRADE
PROGRAM: POTENTIAL BENEFITS AND CONCERNS 21 (2008), http://www.nationala-
glawcenter.org/assets/crs/RL34436.pdf (discussing the issue of leakage).
Jason Schwartz, Note, “Whose Woods These Are I Think I Know”: How Kyoto
May Change Who Controls Biodiversity, 14 N.Y.U. ENVTL. L.J. 421, 426 (2006).
See PARKER ET AL., supra note 42, at 21.
See U.S. GOV’T. ACCOUNTABILITY OFFICE, supra note 67, at 6-7.
NAT’L COMM’N ON ENERGY POLICY, BIPARTISAN POLICY CTR., FORGING THE CLI-
MATE CONSENSUS: DOMESTIC AND INTERNATIONAL OFFSETS 6 (2009), http://www.
Kyoto Protocol, supra note 45, at art. 3(3).
See generally id.
See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, IPCC SPECIAL REPORT:
LAND USE, LAND-USE CHANGE, AND FORESTRY: SUMMARY FOR POLICYMAKERS, vii
(2000), [hereinafter IPCC LULUCF SPECIAL REPORT] http://www.ipcc.ch/pdf/
Id. ¶ 16.
See Conference of the Parties to the Kyoto Protocol, Ninth Session, Milan,
Italy, Dec. 1-12, 2003, Report of the Conference of the Parties on its Ninth
Session, ¶ 8, Decision 19/CP.9, U.N. Doc FCCC/CP/2003/6/Add.2 (Mar. 30,
2004) [hereinafter COP-9 Report, Part Two], http://unfccc.int/resource/docs/
Till Neef et al., Choosing a Forest Deﬁnition for the Clean Development
Mechanism 6-7 (Food & Agric. Org. of the United Nations, Forests and Cli-
mate Change Working Paper No. 4, 2006), http://www.fao.org/forestry/11280-
Id. at 3.
See id. at 5-6 (noting the variances in forest deﬁnitions among countries).
Kyoto Protocol, supra note 45, at art. 12.
U.S. GOV’T. ACCOUNTABILITY OFFICE, supra note 67, at 35.
OFFICE OF AIR AND RADIATION, U.S. ENVTL. PROT. AGENCY, TOOLS OF THE
TRADE: A GUIDE TO DESIGNING AND OPERATING A CAP AND TRADE PROGRAM FOR
POLLUTION CONTROL, Glossary-3 (2003), http://www.epa.gov/airmarkt/resource/
RAMSEUR, supra note 67, at 21.
OFFICE OF AIR AND RADIATION, supra note 84, at 3.
See COP-9 Report, Part Two, supra note 78, at -/CMP.1 Annex A.1.(e)
(deﬁning leakage as “the increase in greenhouse gas emissions by sources
which occurs outside the boundary of an afforestation or reforestation project
activity under the CDM which is measurable and attributable to the afforesta-
tion or reforestation project activity”).
DEFRIES ET AL., supra note 66, at 35.
Carbon Sequestration in Agriculture and Forestry Frequent Questions, U.S.
ENVTL. PROT. AGENCY, http://www.epa.gov/sequestration/faq.html (last updated
Jun. 22, 2010).
See id. (explaining how when trees reach maturity they are also saturated
at which point the tree must be maintained to maintain the saturation and thus
prevent the sequestered carbon from reentering the atmosphere).
RAMSEUR, supra note 67, at 20.
See Marcio Santilli et al., Tropical Deforestation and the Kyoto Protocol:
An Editorial Essay, in TROPICAL DEFORESTATION AND CLIMATE CHANGE 47, 50
(Paulo Moutinho & Stephan Schwartzman eds., 2005).
OFFICE OF AIR AND RADIATION, supra note 84, at 3.
Roger A. Sedjo & Brent Sohngen, Carbon Credits for Avoided Deforesta-
tion 6 (Resources for the Future, Discussion Paper, 2007), http://www.rff.org/
CONG. BUDGET OFFICE, THE POTENTIAL FOR CARBON SEQUESTRATION IN THE
UNITED STATES 2 (2007), http://www.cbo.gov/ftpdocs/86xx/doc8624/09-12-
Kyoto Protocol, supra note 45, at art. 3(3), 3(4).
COP-6, supra note 49. See also Lavanya Rajamani, Re-Negotiating Kyoto:
A Review of the Sixth Conference of the Parties to the Framework Convention
on Climate Change, 12 COLO. J. INT’L ENVTL. L. & POL’Y 201, 223 (2001) (“At
COP-6, the Umbrella Group argued in favor of including additional activities
in the ﬁrst commitment period. However, the [Alliance of Small Island States]
(AOSIS) and the European Union (EU) opposed it.”).
COP-7 Report–Part Two (Volume I), supra note 51.
100 COP-13 Addendum-Two, supra note 52, at 2/CP.13.11.
101 COP-15 Addendum-Two, supra note 55, at 4/CP.15.6.
102 COP-16 AWG-LCA, supra note 57, at III.C.
103 See COP-13 Addendum-Two, supra note 52, at 1/CP.13, ¶ 1(b)(iii) (“Policy
approaches and positive incentives on issues relating to reducing emissions
from deforestation and forest degradation in developing countries; and the role
of conservation, sustainable management of forests and enhancement of forest
carbon stocks in developing countries”); COP-15 Addendum-Two, supra note
55, at 4/CP.15 (“We recognize the crucial role of reducing emission from defor-
estation and forest degradation and the need to enhance removals of greenhouse
gas emission by forests and agree on the need to provide positive incentives to
such actions through the immediate establishment of a mechanism including
REDD-plus, to enable the mobilization of ﬁnancial resources from developed
countries.”); COP-16 AWG-LCA, supra note 57, at III.C (noting the inclusion of
the role of conservation and sustainable management of forests with REDD+).
104 SIMON EGGLESTON & NALIN SRIVASTAVA, IPCC NATIONAL GREENHOUSE GAS
INVENTORY PROGRAMME, AFOLU IN THE IPCC 2006 GUIDELINES (2008), http://
105 Revised 1996 Guidelines for National Greenhouse Gas Inventories, INTER-
GOVERNMENTAL PANEL ON CLIMATE CHANGE (1997).
106 See generally Good Practice Guidance for Land Use, Land-Use Change
and Forestry, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, http://www.ipcc-
nggip.iges.or.jp/public/gpglulucf/gpglulucf_contents.html (last visited Feb. 4,
107 See generally 2006 IPCC Guidelines for National Greenhouse Gas Invento-
ries, Volume 4 Agriculture, Forestry and Other Land Use, INTERGOVERNMENTAL
PANEL ON CLIMATE CHANGE, http://www.ipcc-nggip.iges.or.jp/public/2006gl/
vol4.html (last visited Feb. 4, 2011).
108 Good Practice Guidance for Land Use, Land-Use Change and Forestry,
supra note 106.
109 About REDD+, supra note 11.
110 See Meine van Noordwijk et al., Reducing Emissions from All Land Uses
(REALU): The Case for a Whole Landscape Approach, ASB POLICYBRIEF 13,
(ASB Partnership for the Tropical Forest Margins, Nairobi), 2009, at 2, http://
www.asb.cgiar.org/pdfwebdocs/ASBPB13.pdf (deﬁning the following “RED:
Reducing emissions from (gross) deforestation; only changes from ‘forest’ to
‘non-forest’ land cover types are included, and details depend very much on the
operational deﬁnition of ‘forest.’ REDD: RED and (forest) degradation, or the
shifts to lower carbon stock densities within the forest; details depend very much
on the operational deﬁnition of ‘forest’. REDD+: REDD and restocking within
and towards ‘forest’ (as speciﬁed in the Bali Action Plan); in some versions
REDD+ will also include peatlands, regardless of their forest status; details still
depend on the operational deﬁnition of ‘forest’” and deﬁning REALU which
“includes REDD+ and all transitions in land cover that affect carbon storage,
whether peatland or mineral soil, trees-outside-forest, agroforests, plantations or
natural forests. It does not depend on the operation deﬁnition of ‘forest.’”).
111 2006 IPCC Guidelines for National Greenhouse Gas Inventories, supra note
107, at 1.5.
112 van Noordwijk et al., supra note 110, at 2.
113 See Nophea Sasaki, What are REDD, REDD+ and REDD++?, http://
nopheasasaki.net/papers/2010/nopheasasaki_REDD.pdf (“REDD++: This is to
prevent the conversion of low-carbon but high biodiversity forest lands (reach-
ing minimum threshold of forest deﬁnition) for intensive agricultural cultivation
or other short-term beneﬁt practices when high carbon-stock forests are guarded
for REDD+ beneﬁts.”).
114 REALU: Reducing Emissions from All Land Uses, ASB, http://asb.cgiar.
org/content/realu-reducing-emissions-all-land-uses (last visited Jan. 3, 2011);
Reducing Emissions from All Land Uses (REALU), WORLD AGROFORESTRY CTR.,
http://www.worldagroforestry.org/sea/vn/node/109 (last visited Jan. 3, 2011).
115 Neef et al., supra note 79, at 6; COP-9 Report-Part Two, supra note 78, at
19/CP.9 Annex F. Participation requirements, ¶ 8.
SUSTAINABLE DEVELOPMENT LAW & POLICY81
116 See COP-9 Report-Part Two, supra note 78, at 19/CP.9 Annex F. Participa-
tion requirements, ¶ 8 (providing a ﬂexible deﬁnition of forest: ﬂexibility on
a forest deﬁnition with (a) minimum tree crown cover between 10 and 30 per-
cent; (b) minimum land area between 0.05 and 1 hectare; and (c) minimum tree
height value between 2 and 5 meters).
117 Neef et al., supra note 79, at 3.
118 IPCC LULUCF SPECIAL REPORT, supra note 76, at 5.
119 SINKS TABLE OPTIONS PAPER: LAND-USE, LAND-USE CHANGE AND FORESTRY
IN CANADA AND THE KYOTO PROTOCOL, ENV’T CAN. 127 (1999) http://dsp-psd.
120 2006 IPCC Guidelines for National Greenhouse Gas Inventories, supra note
107, at 1.5.
121 COP/MOP-1 Report-Part Two, supra note 51, at Decision 16/CMP.1 Annex
123 See Jean-Paul Lanly, Deforestation And Forest Degradation Factors
(2003), www.fao.org/docrep/article/wfc/xii/ms12a-e.htm (“There is no defor-
estation if the clearfelling is done on an area that is meant to be maintained as
a forest (as in the case of ‘temporarily unstocked’ forests); deforestation on the
other hand does exist–and this is actually the point of view of forest manage-
ment–when the forest in question is cleared in order to be cultivated or aban-
doned for a long time, and if its regeneration cannot take place before several
decades have passed.”).
124 COP/MOP-1 Report-Part Two, supra note 51, at Decision 16/CMP.1 Annex
125 See generally Kyoto Protocol, supra note 45.
126 COP-6, supra note 49, at Decision 1/CP.6 Box C. Land-use, Land-use
Change and Forestry (“Parties agree that for the implementation of Article 3.3 [of
the Kyoto Protocol], ‘forest’ is deﬁned in accordance with the FAO deﬁnition.”).
127 2006 IPCC Guidelines for National Greenhouse Gas Inventories, supra note
107, at 1.5.
128 OFFICE OF AIR & RADIATION, supra note 84, at 3.
130 About REDD+, supra note 11.
131 COP-9 Report-Part Two, supra note 78, at -/CMP.1 Annex A.1.(e) (deﬁning
132 Good Practice Guidance for Land Use, Land-Use Change and Forestry,
supra note 106, at 14.
133 2006 IPCC Guidelines for National Greenhouse Gas Inventories, supra note
107, at 1.5.
134 About REDD+, supra note 11.
135 COP-6, supra note 49, at Decision 1/CP.6 Box C. Land-use, Land-use
Change and Forestry.
137 See PARKER ET AL., supra note 42, at 21; OFFICE OF AIR & RADIATION, supra
note 84, at 2-8; Carbon Sequestration in Agriculture and Forestry Frequent
Questions, supra note 89.
138 2006 IPCC Guidelines for National Greenhouse Gas Inventories, supra note
107, at 1.5.
139 See PARKER ET AL., supra note 42, at 113 (classifying the following countries
as having high forest cover and low rates of deforestation (“HFLD”): Belize,
French Guiana, Gabon, Guyana, Peru, and Suriname).
140 See id. (classifying the following countries as having low forest cover and
low rates of deforestation (“LFLD”): Angola, Central African, Costa Rica,
Cote d’Ivoire, Cuba, Dominican, Ethiopia, Guinea, Guinea-Bissau, Haiti, India,
Kenya, Laos, Madagascar, Mozambique, Nigeria, Philippines, Senegal, Sierra
Leone, Sri Lanka, Tanzania, Thailand, Uganda, and Vietnam).
141 COP-16 AWG-LCA, supra note 57, at III.C.72.
142 2006 IPCC Guidelines for National Greenhouse Gas Inventories, supra note
107, at 1.5.
143 See COP-6, supra note 49, at Decision 1/CP.6 Box C. Land-use, Land-use
Change and Forestry.
144 Sinks Table Options Paper, supra note 119, at 127, 132.
145 Id. at 127.
146 U.S. CLIMATE CHANGE SCIENCE PROGRAM, THE FIRST STATE OF THE CARBON
CYCLE REPORT: THE NORTH AMERICAN CARBON BUDGET AND IMPLICATIONS FOR THE
GLOBAL CARBON CYCLE 32 (2007), http://www.climatescience.gov/Library/sap/
147 Id. at 140.
148 Jon Kusler, Climate Change in Wetland Areas Part II: Carbon Cycle
Implications, ACCLIMATIONS, (Aug. 1, 1999), http://bluecarbonblog.blogspot.
149 U.S. CLIMATE CHANGE SCIENCE PROGRAM, supra note 146, at XIII (deﬁning
“‘North America’ as Canada, the United States of America (excluding Hawaii),
150 Id. at 143, 140 (noting that “estuarine wetlands and some freshwater min-
eral-soil wetlands rapidly sequester carbon as soil organic matter due to rapid
burial in sediments”).
151 Id. at 143.
152 Id. at XIII.
154 Lindsey, supra note 16.
157 Pimentel et al., supra note 16, at 1119.
158 Coe et al., supra note 16, at 1.
159 Lindsey, supra note 16.
160 Pimentel et al., supra note 16, at 1118.
161 About REDD+, supra note 11.
162 Claudia M. Stickler et al., The Potential Ecological Costs and Cobeneﬁts of
REDD: A Critical Review and Case Study from the Amazon Region, 15 GLOBAL
CHANGE BIOLOGY 2803, 2806 (2009).
163 Coe et al., supra note 16, at 1.
164 Id. at 1; Pimentel et al., supra note 16, at 1117; Lindsey, supra note 16.
165 Coe et al., supra note 16, at 1; Pimentel et al., supra note 16, at 1118-19;
Lindsey, supra note 16.
166 Stickler et al., supra note 161, at 2806.
168 Pimentel et al., supra note 16, at 1117.
169 Pimentel et al., Ecology of Soil Erosion in Ecosystems, 1 ECOSYSTEMS 416,
171 Pimentel et al., supra note 16, at 1118.
172 See id. at 1117-18 (noting how steep slopes converted to agricultural use
often result in high erosion rates: Nigeria – ﬂat slope gradient <1%, lost 2 tons
ha-1 year-1 versus a slope gradient ~12%, lost 221 tons ha-1 year-1; Philippines
– slope gradient greater than 11% on over 58% of the land, and Jamaica – slope
gradient greater than 20% on over 52% of the land, resulted in soil loss as high
as 400 tons ha-1 year-1).
173 Pimentel et al., supra note 169, at 417.
174 See id., at 416-17 (proving an example where over a 100-year period, with
an erosion rate of 2 tons/hectar/year on 10 ha, the deposit of the eroded soil
amasses to a depth of 15 cm on roughly 1 ha of land).
175 Coe et al., supra note 16, at 1.
176 Pimentel et al., supra note 169, at 417.
178 See id. at 418-19 (recognizing that when the forest coverage meets this
minimum, the erosion rates are lower, ranging from 0.004 to 0.050 t/ha/yr).
179 Id. at 419.
180 Pimentel et al., supra note 16, at 1118.
183 Pimentel et al., supra note 169, at 416.
186 COP/MOP-1 Report-Part Two, supra note 51, at Decision 16/CMP.1 Annex
187 See generally id.
188 Pimentel et al., supra note 169, at 419.
190 Pimentel et al., supra note 16, at 1119 (“In the US, where 2.5 cm of soil are
lost every 16.5 years, soil has been lost at about 17 times the rate at which it has
191 Coe et al., supra note 16, at 1.
194 Axel Kleidon & Martin Heimann, Deep-Rooted Vegetation, Amazonian
Deforestation, and Climate: Results from a Modeling Study, 8 GLOBAL ECOLOGY
& BIOGEOGRAPHY 397, 399 (1999), http://www.bgc-jena.mpg.de/bgc-theory/
195 Coe et al., supra note 16, at 1.
198 Kleidon, supra note 194, at 400.
WINTER 2011 82
199 Id. at 399.
200 See id. at 401 (elaborating on why the “evapotranspiration (and thus for
water storage) is considerably increased . . . : (1) less atmospheric moisture
(drier air) increases the water vapour pressure deﬁcit; (2) higher air tempera-
tures (warmer air) further enhances the dryness of the air and the water vapour
pressure deﬁcit; and (3) longer dry periods will require more storage of plant
available water in the soil.”).
202 COP/MOP-1 Report-Part Two, supra note 51, at Decision 16/CMP.1 Annex
203 Kleidon, supra note 194, at 400.
204 Coe et al., supra note 16, at 1.
206 Kleidon, supra note 194, at 399.
207 See generally COP/MOP-1 Report-Part Two, supra note 51, at Decision 16/
CMP.1 Annex Deﬁnitions A(1)(a).
208 Kleidon, supra note 194, at 404.
209 Lindsey, supra note 16.
212 YUMIKO URYU ET AL., WWF INDONESIA, DEFORESTATION, FOREST DEGRADA-
TION, BIODIVERSITY LOSS AND CO2 EMISSIONS IN RIAU, SUMATRA, INDONESIA: ONE
INDONESIAN PROVINCE’S FOREST AND PEAT SOIL CARBON LOSS OVER A QUARTER
CENTURY AND ITS PLANS FOR THE FUTURE 43 (2008), http://assets.panda.org/down-
213 Pimentel et al., supra note 169, at 421.
216 Id. at 416.
217 Stickler et al., supra note 161, at 2806.
221 Mark Schapiro, Climate Change: Better REDD Than Dead, MOTHER JONES
(Nov. 2009), http://motherjones.com/environment/2009/11/better-redd-dead.
222 Stickler et al., supra note 161, at 2806.
225 COP/MOP-1 Report-Part Two, supra note 51, at Decision 16/CMP.1 Annex
226 Bruce Henderson, Groups Oppose Genetically Engineered Eucalyptus
Trees, CHARLOTTE OBSERVER (Aug. 19, 2010), http://www.charlotteobserver.
227 COP-16 AWG-LCA, supra note 57, at III.C; Good Practice Guidance for
Land Use, Land-Use Change and Forestry, supra note 106.
228 van Noordwijk et al., supra note 110, at 2; 2006 IPCC Guidelines for
National Greenhouse Gas Inventories, supra note 107, at 1.5.
229 See generally Kyoto Protocol, supra note 45.
230 United Nations Conference on Environment and Development (1992),
UNITED NATIONS, http://www.un.org/geninfo/bp/enviro.html (last updated May
231 Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818, http://
232 United Nations Framework Convention on Climate Change, May 9, 1992,
1771 U.N.T.S. 107 [hereinafter UNFCCC], http://unfccc.int/resource/docs/con-
233 Kyoto Protocol, supra note 45.
234 SBSTTA 6 Recommendation VI/7, CONVENTION ON BIOLOGICAL DIVERSITY,
http://www.cbd.int/recommendation/sbstta/?id=7038 (last visited Feb. 27, 2011).
235 Secretariat of the Convention On Biological Diversity, CBD Technical
Series No. 10, Interlinkages Between Biological Diversity and Climate Change,
Advice on the Integration of Biodiversity Considerations into the Implementa-
tion of the United Nations Framework Convention on Climate Change and its
Kyoto Protocol (2003), http://www.cbd.int/doc/publications/cbd-ts-10.pdf.
236 Conference of the Parties to the Convention on Biological Diversity, May
19-30, 2008, Decisions Adopted by the Conference of the Parties to the Con-
vention on Biological Diversity at Its Ninth Meeting, Decision IX/16, Biodiver-
sity and Climate Change, U.N. Doc. UNEP/CBD/COP/9/29 (June 30, 2008),
237 COP-9 Decision IX/16, supra note 78, at A(e).
238 Conference of the Parties to the Convention on Biological Diversity, Oct.
18-29, 2010, Decisions Adopted by the Conference of the Parties to the Con-
vention on Biological Diversity at is Tenth Meeting, Biodiversity and Climate
Change, U.N. Doc. UNEP/CBD/COP/DEC/X/33 (Oct. 29, 2010), http://www.
239 Id. ¶ 8(p).
240 UNFCCC, supra note 232, at 1, art. 2.
241 COP-16 AWG-LCA, supra note 57, at Annex I 2(e).
243 See U.S. GOV’T. ACCOUNTABILITY OFFICE, supra note 67, at 2-3 (reviewing
the issues of additional, measurement, veriﬁcation, and permanence); RAMSEUR,
supra note 67, at 21 (discussing the issue of leakage).
244 RAMSEUR, supra note 67, at 21
245 van Noordwijk et al., supra note 110, at 2.
246 Pimentel et al., supra note 16, at 1118-19; Coe et al., supra note 16, at 1;
Lindsey, supra note 16.
247 Market Failures and Externalities, supra note 13.
248 SMITH, supra note 3, at 70-75.
249 Miller, supra note 9, at 19.
250 van Noordwijk et al., supra note 110, at 2.
251 WILDE, supra note 1.
5 See, e.g., Nick Vinocur, Obama Not Doing Enough on Climate Change–
Pachauri, REUTERS, Oct. 22, 2009, http://in.reuters.com/article/2009/10/22/
idINIndia-43370420091022 (including observations made by Dr. Rajendra
Pachauri, chairman of the Intergovernmental Panel on Climate Change
(“IPCC”) in relation to the inadequacy of the emission reduction goals pro-
claimed by the Obama administration).
Lavanja Rajamani, The Making and Unmaking of the Copenhagen Accord,
59 INT’L & COMP. L.Q. 824, 842 (2010).
Id. at 24 (“No collective challenge facing humanity has ever before attracted
such attention, participation and political capital . . . .”). See also Robert H. Cut-
ting & Lawrence B. Cahoon, The “Gift” that Keeps on Giving: Climate Change
Meets the Common Law, 10 VT. J. ENVT. L. 109, 111 (2008) (“Global warming
issues have captured an Oscar, the Nobel Prize, and the attention of mainstream
media and main street America.”).
See generally David B. Hunter, The Implications of Climate Change Liti-
gation: Litigation for International Law-Making, in ADJUDICATING CLIMATE
CHANGE: STATE, NATIONAL, AND INTERNATIONAL APPROACHES 357-76 (William C.
G. Burns & Hari M. Osofsky eds., 2009).
Richard Ingham, Climate Change: Dogs of Law Are Off the Leash, AGENCE
FRANCE-PRESSE (Jan. 22, 2011), http://www.google.com/hostednews/afp/article/
Hari M. Osofsky, The Continuing Importance of Climate Change Litigation,
1 CLIMATE L. 1878, 1886 (2010).
Id. at 1905.
David Markell & J.B. Ruhl, An Empirical Survey of Climate Change Litiga-
tion in the United States, 7 ENV’T L. REP. 10644, 10645-47 (2010).
Id. at 10651.
Massachusetts v. EPA, 549 U.S. 497 (2007).
See Hari M. Osofsky, The Geography of Climate Change Litigation Part II:
Narratives of Massachusetts v. EPA, 8 CHI. J. INT’L L. 573 (2008) (providing a
detailed narrative of Massachusetts v. EPA).
42 U.S.C. § 7521(a)(1) (2006) (“The [EPA] Administrator shall by regula-
tion prescribe (and from time to time revise) in accordance with the provisions
of this section, standards applicable to the emission of any air pollutant from
any class or classes of new motor vehicles or new motor vehicle engines, which
in his judgment cause, or contribute to, air pollution which may reasonably be
anticipated to endanger public health or welfare.”).
See Markell & Ruhl, supra note 12 (providing that no fewer than 52 cases
involving climate change regulatory issues have been brought since December
See, e.g., Hari M. Osofsky, The Geography of Climate Change Litigation:
Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q.
1789, 1827 (2005) (mapping examples of actors and claims in climate change
See Christopher R. Reeves, Climate Change on Trial: Making the Case for
Causation, 32 AM. J. TRIAL ADVOC. 495, 497-503 (2010).
ENDNOTES: THE TORTUOUS ROAD TO LIABILITY continued from page 36
SUSTAINABLE DEVELOPMENT LAW & POLICY83
Osofsky, supra note 18, at 1851.
Markell & Ruhl, supra note 12, at 10651.
Friends of the Earth v. Watson, No. C 02-4106 JSW (N.D. Cal. Aug. 23, 2005).
Markell & Ruhl, supra note 12, at 10651.
See Reeves, supra note 19, at 502-03 (describing such legal methods as
See Markell & Ruhl, supra note 12, at 10651 (explaining that only eight
such actions were ﬁled in the U.S. before 2010, amounting to only six percent
of the total number of climate change-related petitions in the nation).
John Schwartz, Courts as Battleﬁelds in Climate Fights, N.Y. TIMES,
Jan. 27, 2010, http://www.nytimes.com/2010/01/27/business/energy-
See generally Jacqueline Peel, Climate Change Governance After Copen-
hagen: Issues in Climate Change Litigation (Nov. 2010) (unpublished paper),
COUNCIL ON HUMAN RIGHTS POLICY, CLIMATE CHANGE AND HUMAN RIGHTS: A
ROUGH GUIDE 41 (2008) [hereinafter A ROUGH GUIDE].
See, e.g., Massachusetts v. EPA, 549 U.S. 497 (2007); see also A ROUGH
GUIDE, supra note 27, at 44 (explaining Massachusetts v. EPA). On the substan-
tial interest theory in connection with environmental law, see Rónán Kennedy,
“Substantial Interest” Requirement for Judicial Review of Planning Decisions, 11
ENVTL. L. REV. 46 (2009) (describing a case from the Supreme Court of Ireland).
See Sierra Club v. Morton, 405 U.S. 727, 741-52 (1972) (Douglas, J., dis-
senting) (elaborating the classic U.S. theory for environmental standing by
arguing that standing should be accorded when claims are brought “in the name
of the inanimate object about to be despoiled, defaced, or invaded by roads and
bulldozers and where injury is the subject of public outrage”).
See Jennifer Kilinski, International Climate Change Liability: A Myth or a
Reality?, 18 J. TRANSNAT’L L. & POL’Y 377, 414-15 (2009) (regarding the tech-
nicalities that courts encounter when assessing climate change claims).
See, e.g., Massachusetts v. EPA, 415 F.3d 50, 60 (D.C. Cir. 2005) (Sentelle,
J., dissenting in part and concurring in part) (opining that petitioners lacked
standing because they had not demonstrated particularized injury).
An international framework for allocating responsibility for damage that
has and will occur due to global warming has been upheld, among others, in
the Stockholm and Rio declarations. See, e.g., Stockholm Declaration on the
Human Environment of the United Nations Conference on the Human Environ-
ment, U.N. Doc. A/Conf 48/14/Rev.1, 11 I.L.M. 1416 (June 16, 1972), http://
eID=1503; United Nations Conference on Environment and Development, June
3-14, 1992 Rio Declaration on Environment and Development, U.N. Doc. A/
CONF.151/5/Rev. 1 (Vol. 1), Annex I (Aug. 12, 1992), http://www.un.org/doc-
uments/ga/conf151/aconf15126-1annex1.htm; see also Philippe Cullet, Sympo-
sium, Liability and Redress for Human-Induced Global Warming: Towards an
International Regime, 43A STAN. J. INT’L L. 99, 100 (2007).
See Hari M. Osofsky, Is Climate Change “International”?: Litigation’s
Diagonal Regulatory Role, 49 VA. J. INT’L L. 585, 587-88 (2009).
See Cullet, supra note 32, at 106 (referring to the European Court of Jus-
tice’s support of this interpretation of the precautionary principle in its decision
in Case C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee v.
Staatssecretaris Van Landbouw, Natuurbeheer en Visserij, 2004 E.C.R. I-7405.
See ARIE TROUWBORST, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRIN-
CIPLE IN INTERNATIONAL LAW 286 (2002).
See Cullet, supra note 32, at 106.
Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
Id. at 268-69, 274 (ﬁnding the claims non-justiciable political questions);
see Osofsky, supra note 18, at 1827-28.
39 Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009),
reversing 406 F. Supp. 2d 265 (S.D.N.Y. 2005), cert. granted, Dec. 6, 2010.
The case is now pending before the Supreme Court of the United States (No.
10-174) with the oral argument scheduled for April 19, 2011.
See Cullet, supra note 32, at 117.
See Melissa Farris, Compensating Climate Change Victims: The Climate
Compensation Fund as an Alternative to Tort Litigation, 2 SEA GRANT L. &
POL’Y J. 49, 52 (2009-2010) (“Under the political question doctrine, courts must
refrain from reviewing controversies revolving around national policy choices
or developing standards for matters not legal in nature when the power to make
such determinations has been delegated to Congress and the executive branch
by the Constitution.”).
Randall S. Abate, Symposium, Climate Change, the United States and the
Impacts of Arctic Melting: A Case Study in the Need for Enforceable Interna-
tional Environmental Human Rights, 43A STAN. J. INT’L L. 3, 19 (2007) (exam-
ining Connecticut v. Am. Elec. Power Co.); see also Jaw-Tyng Hwang, Climate
Change Litigation: Why California and Other States May Stop Using Lawsuits
to Force Regulation of Greenhouse Gas Emissions Under the Clean Air Act, 4
ENVTL. & ENERGY L. & POL’Y J. 157 (2009).
See Joy C. Fuhr, Connecticut v. AEP The New Normal?, 24 NAT. RESOURCES
& ENV’T 58 (2010); Nikhil V. Gore & Jennifer E. Tarr, Case Note: Connecticut
v. American Electric Power Co., 34 HARV. ENVTL. L. REV. 577 (2010).
44 See David G. Savage, Obama Administration Leaves Climate Change to
Congress, Not the Courts, L.A. TIMES, Sept. 18, 2010, http://articles.latimes.
See Sheila Watt-Cloutier, Petition to the Inter-American Commission on
Human Rights Seeking Relief From Violations Resulting From Global Warming
Caused by Acts and Omissions of the United States, Dec. 7, 2005, http://www.
Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010).
Id.; see also Jay Carmella, Fifth Circuit Grants Katrina Victims Standing in
Global Warming Class Action Suit, JURIST (Oct. 20, 2009), http://jurist.law.pitt.
Some authors take a strong stance in making a case against regulatory
claims based on the Clean Air Act and its underlying preventive mechanisms.
See, e.g., George F. Allen & Marlo Lewis, Finding the Proper Forum for Regu-
lation of U.S. Greenhouse Gas Emissions: the Legal and Economic Implica-
tions of Massachusetts v. EPA, 44 U. RICH. L. REV. 919 (2010).
Id. at 935.
51 JOSEPHINE STEINER, LORNA WOODS & CHRISTIAN TWIGG-FLESNER, E.U. LAW
3 (2006) (illustrating that the EU arose from the European Economic Com-
munity, which itself evolved out of the European Coal and Steel Community,
established in 1951).
See generally Kathleen R. McNamara, The Eurocrisis and the Uncertain
Future of European Integration (Council on Foreign Relations, Working Paper,
See MIROSLAV N. JOVANOVIC, THE ECONOMICS OF EUROPEAN INTEGRATION: LIM-
ITS AND PROSPECTS 54–59 (2005).
By way of example, art. 6(2) of the Lisbon Treaty (entered into force on
December 1, 2009, now Art. 6(2) of the Treaty on European Union), provides:
“The Union shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms.” When realized, it is expected that
this change will bring signiﬁcant improvement for the European framework of
human rights protection.
For the primacy of the economic aspects underlying the European Union
framework, see ALEX WARLEIGH-LACK, EUROPEAN UNION: THE BASICS 60 (2004).
See JAN H. JANS & HANS H.B. VEDDER, EUROPEAN ENVTL. LAW 385-88 (3d
See generally A. Denny Ellerman & Barbara K. Buchner, The European
Union Emissions Trading Scheme: Origins, Allocation, and Early Results, 1
REV. ENVIRON. ECON. & POL’Y 66 (2007).
Navraj Singh Ghaleigh, Emissions Trading Before the European Court of
Justice: Market Making in Luxembourg 6 (Edinburgh School of Law Work-
ing Paper Series, Paper No. 12, 2009), http://papers.ssrn.com/sol3/papers.
Id. at 13, 16, 27.
E.g., Case C-127/07, Société Arcelor Atlantique et Lorraine and Others v.
Premier Ministre, 2008 E.C.R. I-09895.
E.g., Case C-122/05, Comm’n v. Italy, 2006 E.C.R. I-65.
See Regina Betz, Wolfgang Eichhammer, & Joachim Schleich, Designing
National Allocation Plans for EU Emissions Trading–A First Analysis of the
Outcome, 15 ENERGY & ENV’T 375, 376 (2004) (explaining the sub-allocation
plans and mechanisms).
E.g., Case T-387/04, Energie Baden Württemberg v. Comm’n, 2007 E.C.R.
Case C-2/07, Abraham v. Région Wallonne, 2008 E.C.R. I-0000.
Ghaleigh, supra note 58, at 28-29.
See Timothy Gardner, U.S. Must Tackle Emissions First: Chu, REUTERS,
Oct. 20, 2009, http://www.reuters.com/article/2009/10/20/us-washington-sum-
Frank J. Convery, Origins and Development of the EU ETS, 43 ENVTL. &
RESOURCE ECON. 391, 407 (2009) (“[T]he EU is the initiator and the operator of
the world’s ﬁrst and largest international emissions trading scheme.”).
WINTER 2011 84
Arguments against judge-made regulation are many in legal theory. See,
e.g., William Kristol & Jeffrey Bell, Against Judicial Supremacy, WEEKLY
STANDARD, Dec. 4, 2000, at 11.
See, e.g., the observations of Lord Hoffmann, according to whom some
legal decisions (those concerning the allocation of resources, for example)
should be deferred by judges to the Government. Secretary of State for the
Home Department v. Rehman,  UKHL 47, .
See Jim Rossi, Moving Public Law Out of the Deference Trap in Regulated
Industries, 40 WAKE FOREST L. REV. 617 (2005). For a theoretical point of
view, see the second part of the article written by Alison L. Young, Ghaidan
v. Godin-Mendoza: Avoiding the Deference Trap, PUB. L., Spring 2005, at 23,
See Murray Hunt, Sovereignty’s Blight: Why Contemporary Public Law
Needs the Concept of “Due Deference,” in PUBLIC LAW IN A MULTI-LAYERED
CONSTITUTION 338 (Nicholas Bamforth & Peter Leyland eds., 2003) (providing a
critical reference to the so-called “spatial metaphor”).
Cullet, supra note 32, at 115 (agreeing with the idea that regulation and
allocation of greenhouse gases emissions would not be sufﬁcient to mitigate
Council Directive 2004/35/EC, of the European Parliament and of the
Council of 21 April 2004 on Environmental Liability with Regard to the
Prevention and Remedying of Environmental Damage, 2004 O.J. (L 143) 56
(establishing “a framework of environmental liability based on the ‘polluter-
pays’ principle, to prevent and remedy environmental damage”).
See MONIKA HINTEREGGER, ENVIRONMENTAL LIABILITY AND ECOLOGICAL DAM-
AGES IN EUROPEAN LAW (2008).
The Lugano Convention was adopted on June 21, 1993 within the frame-
work of the Council of Europe.
Under Article 2.7(d), the deﬁnition of damages for the purposes of the Con-
vention also includes “the costs of preventive measures and any loss or damage
caused by preventive measures.”
See HINTEREGGER, supra note 77, at 4; see also the Lugano Conven-
tion Record Details, ECOLEX, http://www.ecolex.org/ecolex/ledge/view/
RecordDetails?id=TRE-001166&index=treaties (last visted Mar. 10, 2011).
Similarly, in other jurisdictions courts and claimants have drawn their
attention more to the regulatory aspects of the global warming issue. Namely,
Australian applicants have tried to “use the courts as a tool for climate change
reform” seeking a favorable interpretation of the 1999 Environment Protec-
tion and Biodiversity Conservation Act. Tracy Bach & Justin Brown, Recent
Developments in Australian Climate Change Litigation: Forward Momentum
from Down Under, SUSTAINABLE DEV. L. & POL’Y, Winter 2008, at 39 (describ-
ing Australian conservation foundation’s grassroots movement). For a thorough
analysis of similarities and differences between U.S. and Australian climate
change litigation, see Virginia Tice, From Vermont’s Maples to Wybong’s
Olives: Cross-Cultural Lessons From Climate Change Litigation in the United
States and Australia, 10 ASIAN-PAC. L. & POL’Y J. 292 (2008). In New Zealand,
courts have focused more on the judicial review of the correct application of
the law (which may nonetheless “bring scrutiny to bear on the deﬁciencies
of the law”) than on developing new pathways for establishing redress for
global warming-induced damages. Brian J. Preston, Climate Change Litigation
in the Land and Environment Court of New South Wales and Other Courts,
ACPECT 2009 CONFERENCE, Aug. 19-20, 2009, http://www.lawlink.nsw.gov.
See Watt-Cloutier, supra note 45.
See id. at 1.
See id. at 6.
See Jane George, ICC Climate Change Petition Rejected, NUNATSIAQ NEWS,
Dec. 15, 2006, http://www.nunatsiaqonline.ca/archives/61215/news/nuna-
vut/61215_02.html; Sarah Nuffer, Human Rights Violations and Climate Change:
The Last Days of the Inuit People?, 37 RUTGERS L. REC. 182, 191-92 (2010).
Pamela Stephens, Applying Human Rights Norms to Climate Change: The
Elusive Remedy, 21 COLO. J. INT’L ENVTL. L. & POL’Y 49, 56 (2010) (refer-
ring to Martin Wagner, Testimony Before the Inter-American Commission on
Human Rights on March 1, 2007), http://www.ciel.org/Publications/IACHR_
For further comments on the Inuit case, see Hari M. Osofsky, The Inuit
Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous
Peoples’ Rights, 31 AM. INDIAN L. REV. 675 (2007).
88 See, e.g., Maya Indigenous Cmtys. of the Toledo Dist. v. Belize, Case
12.053, Inter-Am Comm’n H.R., Report No. 40/04, OEA/Ser.L/V.II.122, doc.
5 rev. 1 (2005), http://www.cidh.org/annualrep/2004eng/belize.12053eng.
htm; Yanomami v. Brazil, Case 7615, Inter-Am. Comm’n H.R., Report
No. 12/85, OAS/Ser.L/V/II.66, doc. 10 rev. 1 (1985), http://www.cidh.org/
See MICHAEL D. GOLDHABER, A PEOPLE’S HISTORY OF THE EUROPEAN COURT OF
HUMAN RIGHTS (2009) (presenting an in-depth analysis of the ECtHR’s 50-year
See J.G. MERRILLS, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE EURO-
PEAN COURT OF HUMAN RIGHTS, at ix (1993).
See, e.g., Guerra v. Italy, 1998-I Eur. Ct. H.R. 210 (1998); López Ostra v.
Spain, 303-C Eur. Ct. H.R. (ser. A) (1994).
92 See Hamer v. Belgium, 21861/03 Eur. Ct. H.R. 102 (2007).
Press Release, ECtHR Press Unit, Factsheet: Environment-related Cases in the
Court’s Case Law (Jan. 2011), http://www.echr.coe.int/NR/rdonlyres/0C818E19-
See Ttar v. Romania, 67021/01 Eur. Ct. H.R. ¶ II, B(h) (2009) (stating
that: “En vertu du principe de précaution, l’absence de certitude compte tenu
des connaissances scientiﬁques et techniques du moment ne saurait justiﬁer
que l’État retarde l’adoption de mesures effectives et proportionnées visant à
prévenir un risque de dommages graves et irréversibles à l’environnement.”);
see also LUCIANO BUTTI, THE PRECAUTIONARY PRINCIPLE IN ENVIRONMENTAL LAW
73-81 (2007) (discussing the relationship between the precautionary principle
and climate change).
See Sara C. Aminzadeh, A Moral Imperative: the Human Rights Implica-
tions of Climate Change, 30 HASTINGS INT’L & COMP. L. REV. 231, 238 (2007);
Megan S. Chapman, Climate Change and the Regional Human Rights Systems,
SUSTAINABLE DEV. L. & POL’Y, Spring 2010, at 37.
See Kyrtatos v. Greece, 40 Eur. H.R. Rep. 16 (2003) (holding that there had
been no violation of article 8 as the applicants had not been directly affected by
urban development in the south-eastern part of the island of Tinos, which had
changed the area from a wild natural habitat to a tourist attraction).
See Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) ¶¶ 48-49
(1976) (establishing the margin of appreciation doctrine); see also Yutaka
Arai, The Margin of Appreciation Doctrine in the Jurisprudence of Article 8
of the European Convention on Human Rights, 16 NETH. Q. OF H.R. 41 (1998)
(explaining the margin of appreciation doctrine further).
The subsidiary role of the ECtHR was recently reafﬁrmed by the Commit-
tee of Ministers of the Council of Europe during the High Level Conference
on the Future of the European Court of Human Rights. See, in particular, Sec-
tion E, Article 9(b) of the Action Plan. High Level Conference on the Future
of the European Court of Human Rights, Interlaken, Switz., Feb. 18-19, 2010,
Interlaken Declaration (Feb. 19, 2010), http://www.eda.admin.ch/etc/medialib/
Anatole Boute, The Protection of Property Rights Under the European
Convention on Human Rights and the Promotion of Low-Carbon Investments, 1
CLIMATE L. 93, 95-96 (2010).
100 Id. at 130.
101 Gbemre v. Shell Petroleum Dev. Co. Nigeria Ltd.,  EHC/B/CS/53/05
FHCNLR (Nigeria), http://www.climatelaw.org/cases/case-documents/nigeria/
102 See Labode Adegoke, Pollution as a Constitutional Violation: Gbemre’s
Case (Oct. 22, 2009) (presenting a detailed summary of the case), http://
103 See Aminzadeh, supra note 95, at 238.
104 See id. at 262-64.
105 See id.
106 See SATVINDER SINGH JUSS, INTERNATIONAL MIGRATION AND GLOBAL JUSTICE
107 See Robert V. Percival, Liability for Environmental Harm and Emerging
Global Environmental Law, 25 MD. J. INT’L L. 37 (2010).
108 See Michael Duffy, Climate Change Causation: Harmonizing Tort Law and
Scientiﬁc Probability, 28 TEMP. J. SCI., TECH. & ENVTL. L. 185, 188 (2009).
109 Id. at 240 (admitting that “defendants may not be selected based on moral
culpability or the ease and efﬁciency with which they can abate their harmful
110 Michael B. Gerrard, What the Law and the Lawyers Can and Cannot Do
About Global Warming, 16 SOUTHEASTERN ENVTL. L.J. 33, 51 (2007).
111 See David A. Grossman, Warming Up to a Not-So-Radical Idea: Tort-Based
Climate Change Litigation, 28 COLUM. J. ENVTL. L. 1, 3-5 (2003) (illustrating
the appropriateness of pursuing typical tort law goals in the context of climate
SUSTAINABLE DEVELOPMENT LAW & POLICY85
3 See H.R. 97, 112th Cong. (2011), http://www.opencongress.org/bill/112-
h97/text (last visited Feb. 12, 2011); see also Renee Schoof, With Health Care
‘Repealed,’ GOP Turn to Climate Change, MCCLATCHY NEWSPAPERS (Jan. 20,
change-rise.html; Jeremy Moule, Clean Air v. Free Industry, CITY NEWSPAPER
BLOG (Jan. 28, 2011, 11:48 AM), http://www.rochestercitynewspaper.com/news/
4 See Schoof, supra note 3.
5 Since Democrats retain control over the Senate and Presidency, any Repub-
lican efforts to eliminate EPA regulatory authority will probably fail. Repub-
licans are posturing for the 2012 elections and setting an agenda early. Should
Republicans gain control of the Senate, it is likely that laws similar to H.R. 97
will pass during the 113th Congress. See generally OMB WATCH, supra note 1
(highlighting that Republicans are fulﬁlling their campaign promises by attacking
speciﬁc regulations and the rulemaking process itself); see also Nick Wing, Fred
Upton’s EPA Battle: Incoming Energy Chair Announces Plan to Stymie Carbon
Regulations, HUFFINGTON POST (Dec. 30, 2010, 1:15 AM), http://www.hufﬁngton-
that the chairman of the House Energy and Commerce Committee intends to
use his position to ﬁght EPA regulations); Kasie Hunt, Newt Gingrich Proposes
Abolishing the EPA, POLITICO (Jan. 25, 2011, 1:23 PM), http://www.politico.
com/news/stories/0111/48143.html (citing statements made by the potential 2012
Republican presidential candidate Newt Gingrich at a Renewable Fuels Summit
that EPA should be replaced by a new government agency).
6 See Understanding the Clean Air Act, U.S. ENVTL. PROT. AGENCY, http://
www.epa.gov/air/peg/understand.html (last visited Feb. 12, 2011) (discuss-
ing the passage of the 1970 version of the Clean Air Act and the subsequent
creation of the EPA, to which Congress gave the primary authority of enforcing
the provisions of the Clean Air Act).
7 The 1977 amendments were largely concerned with strengthening EPA’s
ability to enforce and maintain National Ambient Air Quality Standards
(“NAAQS”). One of the major additions of the 1977 amendments was the “Pre-
vention of Signiﬁcant Deterioration of Air Quality Standards,” which required
assessment of new stationary sources or modiﬁcations of old stationary sources
of pollution. See Clean Air Act, 42 U.S.C §7401 (2006), http://www.gpo.gov/
also History of the Clean Air Act, U.S. ENVTL. PROT. AGENCY, http://epa.gov/oar/
caa/caa_history.html#caa70 (last visited Feb. 12, 2011).
8 The 1990 amendments to the Clean Air Act were far broader than the 1977
amendments. The 1990 amendments were instrumental in expanding the
federal governments control over acid rain deposition and emission of other
toxic pollutants. After the 1990 amendments, EPA had far more enforcement
authority due to new permitting standards. There was also signiﬁcant concentra-
tion on the elimination of chemicals that depleted the ozone layer. See S.1630.
101st Cong. (1990) (enacted) http://thomas.loc.gov/cgi-bin/query/F?c101:5:./
temp/~c101kCzQQq:e0:; see also History of Clean Air Act, supra note 7.
9 See Massachusetts v. EPA, 549 U.S. 497, 533-35 (2007) (concluding that EPA
has authority under the Clean Air Act to regulate greenhouse gases as long as
EPA issues an Endangerment Finding). For a brief summary of the court decision,
see also Massachusetts et al. v. EPA et al., PEW CTR. ON GLOBAL CLIMATE CHANGE,
http://www.pewclimate.org/epavsma.cfm (last visited on Feb. 12, 2011).
10 Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act Final Rule, 74 Fed. Reg. 66496
(Dec. 15, 2009), http://www.epa.gov/climatechange/endangerment/downloads/
11 See Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act, U.S. ENVTL. PROT. AGENCY, http://
www.epa.gov/climatechange/endangerment.html (last visited Feb. 12, 2011)
(citing EPA’s intention to pursue regulation of greenhouse gases based on the
evidence laid out in the Endangerment Finding); Energy and Environment, THE
WHITE HOUSE, http://www.whitehouse.gov/issues/energy-and-environment (last
visited Feb. 12, 2011) (declaring the Obama Administration’s intent to support
EPA regulation of greenhouse gases).
12 See Schoof, supra note 3 (quoting Chairman Rep. Fred Upton’s declaration
that he would oppose EPA regulations and protect American jobs); see also
Inhofe Says EPA’s New Boiler Rule Could Kill Nearly 800,000 Manufacturing
Jobs, FOX NEWS (Sep. 28, 2010) [hereinafter Inhofe], http://www.foxnews.com/
ENDNOTES: HAZY SKIES IN AMERICA’S FUTURE?: THE BATTLE BETWEEN “FREE INDUSTRY” AND CLEAN AIR
continued from page 37
ing-jobs/ (citing further Republican opposition to EPA regulations aimed at re-
ducing greenhouse gases, because of the regulations’ effect on jobs); U.S. Sen.
Kay Bailey Hutchinson, EPA Regulations on Reﬁneries Will Kill Jobs in Texas,
THE HOUSTON CHRON. (Jan. 7, 2011, 8:30 PM), http://www.chron.com/disp/story.
mpl/editorial/outlook/7371466.html (discussing the effect of EPA regulations
on the economy of Texas).
13 See Schoof, supra note 3; House Energy Committee Chairman Fred Upton
Denies Human Role In Climate Change, THE HUFFINGTON POST (Feb. 8, 2011,
7:47 PM), http://www.hufﬁngtonpost.com/2011/02/08/fred-upton-climate-
change_n_820511.html; House Readies Ban on EPA Greenhouse Gas Regula-
tions, FOX NEWS (Feb. 2, 2011), http://www.foxnews.com/us/2011/02/02/house-
gop-readies-ban-epa-greenhouse-gas-regulations/ (establishing that critics of
EPA regulations do not believe that the evidence proving the negative impacts
of climate change are conclusive).
14 See Schoof, supra note 3; Inhofe, supra note 12; Hutchinson, supra note 12.
15 See Donald A. Norman, MACH. & ALLIED PRODS. INST., Economic Implica-
tions of EPA’s Proposed Ozone Standard, 1, 5-8 (Sept. 2010), http://www.mapi.
net/Filepost/ER-707.pdf (ﬁnding a total loss of 7.3 million manufacturing jobs
by 2020 and an annual attainment cost of $1.013 trillion to the manufactur-
ing sector if EPA implements new ozone regulations); Margo Thorning, EPA
Regulation of GHGs, U.S. Investment and Economic Recovery: Questions and
Answers, AM. COUNCIL FOR CAPITAL FORMATION, pg. 1-2, 5-6 (Dec. 2010), http://
economic-recovery-questions-answers (providing non-industry speciﬁc job-loss
and cost data for new EPA GHG regulations).
16 See James A. McCarthy & Larry Parker, CONG. RESEARCH SERV., EPA Regu-
lation of Greenhouse Gases: Congressional Responses and Options, tbl. 1, at 4
(June 8, 2010), http://www.fas.org/sgp/crs/misc/R41212.pdf (providing detailed
statistics for the total greenhouse gas emissions by the energy and manufactur-
ing industries). For more data and background, see also ENERGY INFO. ADMIN.,
Emissions of Greenhouse Gases in the United States 2008, ﬁg. 1, 3, & 11, tbl. 5,
9, & 11 (2009).
17 See Industry Jobs, AM. PETROLEUM INST., http://energytomorrow.org/issues/
economy/industry-jobs/ (last visited Feb. 12, 2011) (stating that the oil and gas
industries directly employ 2.1 million people); see also PRICEWATERHOUSECOO-
PERS, THE ECONOMIC IMPACTS OF THE OIL AND NATURAL GAS INDUSTRY ON THE U.S.
ECONOMY: EMPLOYMENT, LABOR INCOME AND VALUE ADDED tbl. 2 (2009), http://
(providing statistics that indicate the total employment provided by the oil and
gas industries is 9.2 million when all supporting industries are included).
18 This employment ﬁgure indicates the 2009 employment ﬁgures in the coal
sector, as provided by the National Mining Association. See NAT’L MINING
ASSOC., Mining Industry Employment in the United States by Sector 1985-2009
19 See Facts About Manufacturing, NAT’L ASSOC. OF MFRS., http://www.nam.
org/Resource-Center/Facts-About-Manufacturing/Landing.aspx (providing ba-
sic statistics about direct and indirect employment by the manufacturing sector).
20 The employment ﬁgures used in this article only take account of the people
directly employed be the respective industrial sectors mentioned above. “Sup-
porting industries,” as used in this article, refers to industries that are inter-
related with a speciﬁc industry so much so that the livelihood of a “supporting
industry” depends considerably upon the success of its “parent industry.” For
instance, according to ﬁgures provided by the American Petroleum Institute,
the oil and natural gas industry directly employs 2.1 million Americans, but
employs 9.1 million Americans when we take account of “supporting indus-
tries.” See Industry Jobs, supra note 17.
21 See James Heintz, Heidi Garrett-Peltier, & Ben Zipperer, New Jobs–Cleaner
Air, CERES, tbl. ES.1-2 (Feb. 2011), http://www.ceres.org/Page.aspx?pid=592
(citing ﬁgures that predict 1.46 million jobs could be created by 2015 by EPA
greenhouse gas regulations).
22 One federal regulatory standard that is applicable across all states would be
more uniform than various laws that differ from state to state. As the chart ref-
erenced below indicates, some states already have stricter standards, others have
less stringent ones, and still others have none at all. See Amy Royden Bloom,
NAT’L ASSOC. OF CLEAN AIR AGENCIES, State Greenhouse Gas (GHG) Actions,
(Jan. 16, 2008), http://www.4cleanair.org/documents/stateghgactions-chart.pdf.
WINTER 2011 86
ENDNOTES: AFRICA AND THE CLIMATE CHANGE AGENDA: HURDLES AND PROSPECTS IN SUSTAINING THE OUTCOMES OF
THE SEVENTH AFRICAN DEVELOPMENT FORUM continued from page 44
23 This is a classic “race-to-the-bottom” argument, where in the face of eco-
nomic competition governmental entities (nations, states, cities, etc.) relax their
regulatory standards to promote economic growth in their jurisdiction. This idea
gained recognition in the U.S. after Justice Louis Brandeis discussed it in his
dissen ting opinion in Liggett Co. v. Lee., 288 U.S. 517, 558-60 (1933) (Brandeis, J.,
24 See Press Release, Cleantech Grp. LLC, Record Number of Clean
Technology Venture Investment Deals in 2010, as Total Amount Invested
Rises 28 Percent to $7.8 Billion, (Jan. 7, 2011), http://cleantech.com/about/
25 See McCarthy, supra note 16, at n.31 (discussing the Obama administration’s
efforts to seek international reduction of global GHG emissions, and the central
role that U.S. emissions reductions play in the international process).
26 See OMB Watch, supra note 1; Cappiello, supra note 1 (citing several
House and Senate measures aimed at limiting the EPA’s ability to enforce regu-
See McCarthy, supra note 16, at 11; see also Elizabeth McGowan, EPA and
Congress Headed for Showdowns Over Carbon Regulations in 2011, SOLVE
CLIMATE NEWS (Dec. 29, 2010), http://solveclimatenews.com/news/20101229/
(citing the controversy between the EPA and Republicans as a carry-over
from the 111th Congress); Appreciating the Clean Air Act, FRIENDS COMM. ON
NAT’L LEGISLATION (Nov. 30, 2010), http://www.fcnl.org/issues/item.php?item_
id=4028&issue_id=102 (providing a timeline of bills introduced in the 111th
Congress, both in the House and Senate with similar aims to the current set of
bills circulating through Congress).
28 Congress has acted in a similar fashion with respect to EPA authority in the
1977 and 1990 amendments to the Clean Air Act. See McCarthy, supra note 16,
and Declarations, Assembly/AU/Dec.255(XIII), ¶ 4, http://www.africa-union.
27 See Assembly of the African Union, Fourteenth Ordinary Session, Jan.
31-Feb. 2, 2010, Decision on the Fifteenth Conference of Parties to the United
Nations Framework Convention on Climate Change (UNFCCC) and the
Kyoto Protocol, in Decisions, Declarations, and Resolutions, Assembly/AU/
Dec.281(XIV), ¶ 4, http://www.africa-union.org/root/ua/Conferences/2010/
28 See African Ministerial Conference on the Environment, Twelfth Session,
Johannesburg, S. Afr., June 10–12, 2008, Report of the Ministerial Segment,
UNEP/AMCEN/12/9 (June 12, 2008), http://www.unep.org/roa/Amcen/
29 Nairobi Declaration on the African Process for Combating Climate Change,
May 29, 2009, http://www.unep.org/roa/Amcen/Amcen_Events/3rd_ss/Docs/
30 Id. at pmbl., ¶ 6.
31 Id. at pmbl., ¶ 8.
32 Id. at pmbl., ¶ 13.
33 Id. at pmbl., ¶ 15.
34 NEPAD is a vision and strategic framework for Africa’s renaissance. Estab-
lished in 2001, it is an intervention spearheaded by African leaders, which
pursues new priorities and approaches to address current socio-economic and
political problems facing the continent. For insights into the historical context
of NEPAD, see History, NEPAD, http://www.nepad.org/history (last visited
Mar. 12, 2011) and About, NEPAD, http://www.nepad.org/about (last visited
Mar. 12, 2011). On NEPAD’s principles, priorities, and desired outcomes, see
THE NEW PARTNERSHIP FOR AFRICA’S DEVELOPMENT (2001), http://www.nepad.
35 See NEPAD, ACTION PLAN FOR THE ENVIRONMENT INITIATIVE (2003), http://
36 See Climate Change and Natural Resource Management: Overview,
NEPAD, http://www.nepad.org/climatechangeandsustainabledevelopment (last
visited Mar. 12, 2011).
37 The AfDB is Africa’s Multilateral Development Bank (“MDB”). Founded
in 1964, it is part of the larger African Development Bank Group (“AfDBG”),
which also includes the African Development Fund (“ADF”) and the Nigeria
Trust Fund (“NTF”). Its membership comprises seventy-seven States, including
the ﬁfty-three AU Member States and twenty-four non-African countries. For
details on the bank, see African Development Bank (AfDB), AFR. DEVELOPMENT
BANK, http://www.afdb.org/en/about-us/african-development-bank-afdb/ (last
visited Mar. 12, 2011).
38 The over seven hundred participants were drawn from, among others,
government representatives, UN and bilateral partners, international and
regional ﬁnancial institutions, South-South cooperation organizations, regional
economic communities, the civil society, academia, African Diaspora, and
the private sector. Kwesi W Obeng, Climate Change: Africa at the Cross-
roads, THIRD WORLD NETWORK AFR. (Dec. 2, 2010), http://twnafrica.org/index.
39 Seventh African Development Forum, Acting on Climate Change for Sus-
tainable Development in Africa, Oct. 10-15, 2010, Consensus Statement (Oct.
15, 2010) [hereinafter Consensus Statement], http://www.uneca.org/adfvii/
40 It hardly goes without emphasis that the Forum should not be confused for
its namesake, the UK-based African Development Forum (also abbreviated
as “ADF”), a Christian organization that brings together Britain’s African and
Caribbean Christians to engage in efforts to address poverty in Africa. For
details on this non-proﬁt Christian organization, see AFR. DEVELOPMENT FORUM,
http://www.africandevelopmentforum.org (last visited Mar. 12, 2011). The lat-
ter, established in 2006, seeks to contribute to economic and social progress in
Africa through education and advocacy activities in three focal areas: Economic
Justice, Climate Change, and HIV/AIDS. For details on these focal areas, see
Focus Areas, AFR. DEVELOPMENT FORUM, http://www.africandevelopmentforum.
org/activities.html (last visited Mar. 12, 2011).
41 For insights into the establishment of the forum, see What is the ADF,
UNECA, http://www.uneca.org/adf2000/abtadf.htm (last visited Mar. 12, 2011).
42 See Seventh African Development Forum, supra note 4, ¶ 1.
43 See Seventh African Development Forum “Acting on Climate Change for
Sustainable Development in Africa”: Concept Note 4, http://www.uneca.org/
adfvii/documents/ADF-VII-DraftConceptNote.pdf (last visited Mar. 12, 2011).
48 See Consensus Statement, supra note 39, at pmbl., ¶¶ 2-3.
49 Id. at 4. On the background to the deliberations, see Seventh African Devel-
opment Forum, Acting on Climate Change for Sustainable Development in
Africa, Oct. 10-15, 2010, Governance and Leadership Response to Climate
Change, Issues Paper No. 1, http://www.uneca.org/adfvii/documents/IssuePa-
50 Consensus Statement, supra note 39, at 4.
53 Id. at 3.
54 On the background to the deliberations, see Seventh African Development
Forum, Acting on Climate Change for Sustainable Development in Africa, Oct.
10-15, 2010, Private Sector Response to Climate Change, Issues Paper No. 11,
to-climate-change.pdf (discussing several methods through which the private
sector can engage in climate change mitigation efforts in Africa).
55 See Consensus Statement, supra note 39, at 4.
59 On the background to the deliberations of these subjects, see Seventh Afri-
can Development Forum, Acting on Climate Change for Sustainable Devel-
opment in Africa, Oct. 10-15, 2010, Climate Change, Agriculture, and Food
Security, Issues Paper No. 2, http://www.uneca.org/adfvii/documents/IssuePa-
per2ClimateChangeAgricultureandFoodSecurity.pdf (calling for a paradigm
shift that prioritizes agriculture and food security in sustainable development
efforts); see also Seventh African Development Forum, Acting on Climate
SUSTAINABLE DEVELOPMENT LAW & POLICY87
Change for Sustainable Development in Africa, Oct. 10-15, 2010, Climate
Change, Economic Growth, and Poverty Reduction in Africa, Issues Paper
No. 12, http://www.uneca.org/adfvii/documents/IssuesPaper12CCEconomic-
Growth-andPovertyReduction-inAfrica.pdf (exploring two issues: 1) the way
in which climate change affects economic activity and efforts at poverty reduc-
tion; and 2) the challenges associated with managing climate change); see also
Seventh African Development Forum, Acting on Climate Change for Sustainable
Development in Africa, Oct. 10-15, 2010, Climate Change and Infrastructure
Development, Issues Paper No. 8, http://www.uneca.org/adfvii/documents/Issue-
Paper8ClimateChange-andInfrastructureDevelopment.pdf (identifying investment
initiatives to strength Africa’s infrastructure and helping to achieve MDGs).
60 See Consensus Statement, supra note 39, at 9.
62 See id. at 10.
63 The Program, launched on July 21, 2010 (on the sidelines of the 15th Ordi-
nary Session of the AU Assembly, Kampala, Uganda, 19-27 July 2010), is a
joint initiative of the AU Commission, the AfDB, and the New Partnership for
Africa’s Development (“NEPAD”) Secretariat. It focuses on development of
transportation, energy, information and communication technologies, as well as
trans-boundary water basins. For in-depth insights into the Program, see AfDB,
AUC & NEPAD, Programme for Infrastructure Development in Africa (PIDA):
Concept Note, http://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Project-
related-Procurement/PIDA%20-%20Concept%20Note.pdf (last visited Mar. 12,
2011) (describing “the context in which the initiative was formulated, the issues
it addresses and approaches”); see also AfDB, AUC & NEPAD, Programme
for Infrastructure Development in Africa (PIDA): General Terms of Refer-
visited Mar. 12, 2011).
64 See Consensus Statement, supra note 39, at 10.
65 For background to the deliberations, see Seventh African Development
Forum, Acting on Climate Change for Sustainable Development in Africa, Oct.
10-15, 2010, Climate Change and Human Development, Issues Paper No. 3,
http://www.uneca.org/adfvii/documents/IssuePaper3CC-HD.pdf; see also Samuel
Frankhauser & Guido Schmidt-Traub, From Adaptation to Climate-Resilient
Development: The Costs of Climate-Prooﬁng the Millennium Development Goals
in Africa, CTR. FOR CLIMATE CHANGE ECON. & POLICY, GRANTHAM RESEARCH INST.
ON CLIMATE CHANGE & THE ENV’T (Feb. 2010), http://www.cccep.ac.uk/Publica-
tions/Policy/docs/PPFankhauseretal_costs-climate-prooﬁng.pdf; ISATOU GAYE,
UNECA, GENDER AND CLIMATE CHANGE: WOMEN MATTER (2009), http://www.
uneca.org/sdd/documents/gender-and-climate-change.pdf; William Westermeyer,
Observing the Climate for Development, 2 CLIMATE & DEV. 276 (2010), http://
66 See Consensus Statement, supra note 39, at 8.
69 For a concise background to the deliberations on this subject, see Seventh
African Development Forum, Acting on Climate Change for Sustainable
Development in Africa, Oct. 10-15, 2010, Governance for Peace and Security
in a Changing Climate, Issues Paper No. 6, http://www.uneca.org/adfvii/docu-
70 See Consensus Statement, supra note 39, at 7.
72 Protocol Relating to the Establishment of the Peace and Security Council
of the African Union, Jul. 10, 2002, (entered into force Dec. 26, 2003), http://
73 See Consensus Statement, supra note 39, at 7.
74 For a background to the deliberations on this critical subject, see Seventh
African Development Forum, Acting on Climate Change for Sustainable
Development in Africa, Oct. 10-15, 2010, Climate Change and Ecosystem Sus-
tainability, Issues Paper No. 9, http://www.uneca.org/adfvii/documents/Issues-
75 See Consensus Statement, supra note 39, at 7.
76 Id. at 8.
77 For a concise background to the deliberations on the subject, see Seventh
African Development Forum, Acting on Climate Change for Sustainable
Development in Africa, Oct. 10-15, 2010, Financing Climate Change Mitiga-
tion and Adaptation Actions, Issues Paper No. 7, http://www.uneca.org/adfvii/
documents/IssuePaper7Financing-climate-change-adaptation.pdf; see also AFR.
PROGRESS PANEL, FINANCE FOR CLIMATE-RESILIENT DEVELOPMENT IN AFRICA: AN
AGENDA FOR ACTION FOLLOWING THE COPENHAGEN CONFERENCE (2010), http://
mate_resilient_development_FINAL.pdf; UNECA & APF, Financing Climate
Change Adaptation and Mitigation in Africa: Key Issues and Options for Policy
Makers and Negotiators, http://www.uneca.org/adfvii/documents/FINALPoli-
cyBrief_FinancingCC130509.pdf (last visited Mar. 15, 2011).
78 See Consensus Statement, supra note 39, at 5, 10.
79 For a concise background to the deliberations on the subject, see Seventh
African Development Forum, Acting on Climate Change for Sustainable Devel-
opment in Africa, Oct. 10-15, 2010, Climate Risk Management: Monitoring,
Assessment, Early Warning, and Response, Issues Paper No. 4, http://www.
80 See Consensus Statement, supra note 39, at 6-7.
81 Id. at 6.
82 Id. at 6, 10.
83 For background to the deliberations, see Seventh African Development
Forum, Acting on Climate Change for Sustainable Development in Africa,
Oct. 10-15, 2010, Science, Technology, Innovation, and Capacity Building
for Addressing Climate Change, Issues Paper No. 10 [hereinafter Science &
Technology Issues Paper], http://www.uneca.org/adfvii/documents/IssuePaper-
84 See Consensus Statement, supra note 39, at 7.
85 Id. at 8.
86 Id. at 3.
88 For background to the deliberations, see Science & Technology Issues
Paper, supra note 83.
89 See Consensus Statement, supra note 39, at 5
91 See, e.g., African Commission on Human and Peoples’ Rights, Resolution
on Climate Change and Human Rights and the Need to Study its Impact on
Africa, ACHPR/Res153(XLVI)09 (Nov. 25, 2009), http://www.achpr.org/eng-
lish/resolutions/resolution153_en.htm; Analysis of the ﬁnal version of Kenya’s
R-PP, FOREST CARBON P’SHIP, http://www.forestcarbonpartnership.org/fcp/sites/
check_%20Kenya%27s%20R-PP.pdf (last visited Mar. 12, 2011).
92 See African Leaders Call for the African Green Fund, AFDB (Dec. 10, 2010)
green-fund-7595/ (citing various African leaders attending the Cancún COP-16
conference, who called for the early establishment of the Fund), see also, AfDB
President Underscores Importance of Africa Green Fund at Cancun Climate
Conference, AFDB (Dec. 10, 2010), http://www.afdb.org/en/news-events/article/
conference-7597/ (citing the AfDB President, Donald Kaberuka, as having, in his
statement delivered at the High-Level segment of the Cancún Climate Confer-
ence, underscored the importance of AfDB establishing the AGF).
93 According to a recent World Bank study, during the ﬁrst eleven months of
2009 alone, the world witnessed farmland deals covering at least 110 million
acres. More than seventy percent of the deals were in Africa, with the Sudan,
Mozambique, and Ethiopia among the key African nations transferring mil-
lions of acres to foreign investors. See KLAUS DEININGER ET AL., WORLD BANK,
RISING GLOBAL INTEREST IN FARMLAND: CAN IT YIELD SUSTAINABLE AND EQUI-
TABLE BENEFITS? 156, at tbl.A2.1 (2010), http://siteresources.worldbank.org/
INTARD/Resources/ESW_Sept7_ﬁnal_ﬁnal.pdf; see also Neli MacFarquhar,
African Farmers Displaced as Investors Move In, N.Y. TIMES (Dec. 21, 2010),
mtwt&twt=mnytimes (reporting on the agonies of African farmers, who con-
tinually lose their arable land).
94 See LORENZO COTULA ET AL., IFAD, IIED, FAO, LAND GRAB OR DEVELOP-
MENT OPPORTUNITY? AGRICULTURAL INVESTMENT AND INTERNATIONAL LAND
DEALS IN AFRICA (2009), http://www.ifad.org/pub/land/land_grab.pdf; see also
Olivier De Schutter, Op-Ed., How Not to Think About Land Grabbing, INT’L
LAND COALITION (Jan. 12, 2011), http://www.commercialpressuresonland.org/
opinion-pieces/how-not-think-about-land-grabbing (arguing that ceding land
to foreign investors for large-scale plantation farming is counter-productive
as it results in further impoverishment and food insecurity for the affected
local populations); Olivier De Schutter, Op-Ed., Food Crises: G20 Needs
Architects, Not Fire-ﬁghters, PROJECT SYNDICATE (Jan. 28, 2011), http://www.
project-syndicate.org/commentary/deschutter3/English (urging protection of
access to land, which, he argues, is constantly threatened or violated by land
grab through foreign direct investments in agriculture); Olivier De Schutter,
WINTER 2011 88
UN Special Rapporteur on the Right to Food, Access to Land and the Right to
Food, Report presented to the 65th General Assembly of the United Nations,
UN Doc. A/65/281 (Aug. 11, 2010), http://www.srfood.org/images/stories/pdf/
ofﬁcialreports/20101021_access-to-land-report_en.pdf (noting the relationship
between access to land and realization of the right to food); Olivier De Schutter,
UN Special Rapporteur on the Right to Food, Large-Scale Land Acquisitions
and Leases: A Set of Minimum Principles and Measures to Address the Human
Rights Challenge, Report presented to the UN Human Rights Council, UN Doc.
A/HRC/13/33/Add.2 (Dec. 28, 2009), http://www.srfood.org/images/stories/pdf/
ofﬁcialreports/20100305_a-hrc-13-33-add2_land-principles_en.pdf (noting how
human rights violations can be addressed in the context of the global land rush).
95 See Genet Mersha, International Agricultural Land Deals Award Ethiopian
Virgin Lands to Foreign Companies, ABUGIDA INFO (Aug. 13, 2009), http://
96 See Nuhu Ribadu, Challenging Corruption in Africa: Beyond the Blank
Projections, CTR. FOR GLOBAL DEVELOPMENT (Aug. 23, 2010), http://www.
cgdev.org/content/publications/detail/1424376; Stephanie Hanson, Corruption
in Sub-Saharan Africa, COUNCIL ON FOREIGN RELATIONS (Aug. 6, 2009), http://
Lawal, Corruption and Development in Africa: Challenges for Political and
Economic Change, 2 HUMANITY & SOC. SCI. J. 1 (2007), http://idosi.org/hssj/
97 See TRANSPARENCY INT’L, GLOBAL CORRUPTION REPORT 2010: CORRUPTION AND
CLIMATE CHANGE (2010) [hereinafter GLOBAL CORRUPTION REPORT 2010], http://
www.transparency.org/publications/gcr; TRANSPARENCY INT’L, GLOBAL COR-
RUPTION PERCEPTION INDEX 2010 (2010), http://www.transparency.org/policy_
98 See Frazier Potani, Corruption Fuelling Climate Change, AFR. NEWS (Apr.
6, 2010), http://www.africanews.com/site/Corruption_fuelling_climate_change/
99 See GLOBAL CORRUPTION REPORT 2010, supra note 97; see also M.S.
Abdulkadir et al., Africa’s Slow Growth and Development: An Overview of
Selected Countries, 16 EUROPEAN J. SOCIAL SCI. 619 (2010), http://www.euro-
100 According to the latest release from the UN Development Program
(“UNDP”), thirty-ﬁve of the forty-two countries with “low human develop-
ment” are in Africa. See UNDP, HUMAN DEVELOPMENT REPORT 2010: THE REAL
WEALTH OF NATIONS: PATHWAYS TO HUMAN DEVELOPMENT (2010), http://hdr.undp.
101 See FAO, supra note 6.
102 See, e.g., States, Politics and Development in Africa, FUTURE AGRICULTURES,
processes&Itemid=521 (last visited Jan. 30, 2011); Matthew Lockwood, States
of Development, PROSPECT MAGAZINE, Nov. 20, 2005; Richard Dowden, The
Captured State, PROSPECT MAGAZINE, Aug. 28, 2005.
103 See, e.g., Climate Airwaves, AFR. ADAPT, http://www.africa-adapt.net/aa/Pro-
jectOverview.aspx?PID=%2Ft%2BhliQ1hY8%3D (last visited Jan. 30, 2011);
Fabio Pittaluga, Finding a Voice for Indigenous Peoples at COP16, BLOGS.
WORLDBANK.ORG (Oct. 20, 2010, 5:25 PM), http://blogs.worldbank.org/climat-
104 See, e.g., PASTORALIST CONSULTANTS INT’L, FINDING THE WAY FORWARD:
REPORTING FROM A GATHERING OF PASTORALISTS AT KOORA, KAJIADO DISTRICT,
KENYA 13 (Paul Sullivan ed., 2008), http://www.pastoralists.org/media/publi-
cation-pdf-ﬁles/Finding%20the%20way%20forward%20lowres.pdf (citing an
elder from the Gabra pastoralist community of Northern Kenya, who remarked:
“Rain comes from God and there is nothing we can do when the rains fail”);
on skepticism at the international level, see also, e.g., Martin Keeley, Climate
Change ‘Is the Norm,’ BBC NEWS (Dec. 6, 2004), http://news.bbc.co.uk/2/hi/
science/nature/4066189.stm (attributing climate change to the unsentimental
behavior of Mother Nature); Frederick Seitz & Robert Jastrow, Do People
Cause Global Warming?, ENV. & CLIMATE NEWS (Dec. 1, 2001), http://www.
(claiming that human CO2 emissions only marginally contribute to global
warming); see also Fred Singer & Dennis T. Avery, The Physical Evidence of
Earth’s Unstoppable 1,500-Year Climate Cycle, NAT’L CTR. FOR POLICY ANALY-
SIS (Sep. 2005), http://www.ncpa.org/pdfs/st279.pdf (claiming global warming
is a natural phenomenon with little contribution from human greenhouse gas
pollution); Craig Isdo, A Science-Based Rebuttal to the Testimony of Al Gore
Before the United States Senate Environmental and Public Works Committee,
CTR. FOR THE STUDY OF CARBON DIOXIDE & GLOBAL CHANGE (May 2007), http://
105 See Consensus Statement, supra note 39, at 2.
106 See Report on Climate Change and Development, supra note 2, at 3.
107 See, e.g., Poor Man’s Burden, DOWN TO EARTH (Jan. 15, 2011), http://www.
downtoearth.org.in/node/2784; De Boer: EU 2020 Climate Targets ‘A Piece
of Cake,’ EURACTIV.COM (Apr. 22, 2010), http://www.euractiv.com/en/climate-
Lusekelo Philemon, ‘Rich Nations’ Pledge on Climate Change Unfulﬁlled,
IPPMEDIA (Nov. 18, 2010), http://www.ippmedia.com/frontend/?l=23201.
108 Poor Man’s Burden, supra note 107.
109 Arguably, by ﬁnancing the numerous land deals, which have resulted in millions
of Africans continually losing their arable lands to private investors, the World
Bank is fuelling climate change on the continent. See MacFarquhar, supra note 93.
110 For instance, on April 9, 2010, the World Bank granted a loan (of USD
3.75 billion) to the South African electricity utility, Eskom, to develop the
world’s fourth largest coal-ﬁred power plant. This decision did not go well with
environmental activists, who rightly argued that it clearly conﬂicts with the
global resolve to ﬁght against climate change. See Annika Lindorsson Krugel,
The World Bank vs Climate Change, Poverty and Corruption (Apr. 12, 2010),
111 The CTF, which ﬁnances scaled-up demonstration, deployment, and transfer
of low-carbon technologies with signiﬁcant potential for reducing emissions,
is largely funded by the governments of Australia, France, Germany, Japan,
Spain, Sweden, the United Kingdom, and the United States. It is expected
to channel (through the AfDB) up to USD 625 million for clean technology
projects in Africa. See AfDB, Status of Involvement of the Bank in the Climate
Investment Funds (Jul. 2010), at 1-3, [hereinafter Status of AfDB Involvement
in CIFs], http://www.afdb.org/ﬁleadmin/uploads/afdb/Documents/Project-and-
2010%5B1%5D.pdf; For in-depth insights, see Clean Technology Fund, CLI-
MATE FUNDS UPDATE, http://www.climatefundsupdate.org/listing/clean-technol-
ogy-fund (last visited Nov. 28, 2010).
112 The SCF, which ﬁnances various targeted programs to pilot new climate
change action projects, with a possibility of scaling up, has three components:
(1) the Pilot Program for Climate Resilience, designed to support countries
to scale up climate action and transformational change by integrating climate
resilience in their national development plans (currently beneﬁting Mozam-
bique, Niger, and Zambia); (2) the Forest Investment Program, designed to
signiﬁcantly reduce emissions from deforestation and forest degradation and
promote improved sustainable management of forests (currently beneﬁting
Burkina Faso, the Democratic Republic of Congo, Ghana, and Liberia); and (3)
the Scaling Up Renewable Energy Program, aimed at piloting energy sector
transformation projects (set to beneﬁt Ethiopia, Kenya, and Mali). For in-depth
insights into the Fund, see Strategic Climate Fund, CLIMATE FUNDS UPDATE,
http://www.climatefundsupdate.org/listing/ strategic-climate-fund (last visited
Nov. 28, 2010). For insights into funding in Africa, see Status of AfDB Involve-
ment in CIFs, supra note 111, at 3-4.
113 The Kyoto Protocol Adaptation Fund, which ﬁnances adaptation projects
in developing countries that are parties to the Kyoto Protocol, was established
at COP-7 in 2001 and operationalized in 2009. Administered by an indepen-
dent Board, it is funded with a share of proceeds from the Clean Develop-
ment Mechanism (“CDM”) projects, as well as voluntary pledges by donor
governments. Africa’s beneﬁt currently stands at 59.8% of the total project
expenditure of the Fund. Senegal’s “Adaptation to Coastal Erosion in Vulner-
able Areas” is one of the two inaugural projects funded by the Fund, the other
being Honduras’ “Addressing Climate Change Risks on Water Resources.” See
Adaptation Fund, CLIMATE FUNDS UPDATE, http://www.climatefundsupdate.org/
listing/adaptation-fund (last visited Nov. 28, 2010).
114 The CBFF, was “set up in June 2008 to take early action to save forests in
the Congo Basin,” Africa’s biggest carbon sink. While complementing existing
activities, it aims at: 1) supporting “transformative and innovative proposals
which will develop the capacities of peoples and institutions to enable them
to manage their forests;” 2) helping “local communities ﬁnd livelihoods that
are consistent with forest conservation;” and 3) reducing the rate of deforesta-
tion. Financed by the British and Norwegian governments, it beneﬁts the ten
Central African Forests Commission member countries: Burundi, Cameroon,
Chad, Congo, the Central African Republic (“CAR”), the Democratic Republic
of Congo (“DRC”), Equatorial Guinea, Gabon, Rwanda, and Sao Tome and
Principe. For further insights, see Congo Basin Forest Fund, CLIMATE FUNDS
(last visited Nov. 28, 2010).
SUSTAINABLE DEVELOPMENT LAW & POLICY89
115 The FCPF, which was established in December 2007 (and operationalized in
June 2008), is intended “to assist developing countries in their efforts to reduce
emission from deforestation and land degradation.” Africa’s beneﬁt share
stands at 25.5% of the Facility’s total projects expenditure. So far, it is beneﬁt-
ing fourteen African countries (Cameroon, CAR, Congo, the DRC, Equatorial
Guinea, Ethiopia, Gabon, Ghana, Kenya, Liberia, Madagascar, Mozambique,
Tanzania, and Uganda). See Forest Carbon Partnership Facility, Climate
Funds Update, http://www.climatefundsupdate.org/listing/forest-carbon-part-
nership-facility (last visited Nov. 28, 2010).
116 The GEF Trust Fund, which is primarily funded by the United States, Japan,
Germany, the UK, France, and Canada, has a climate change focal area which
supports, inter alia, renewable energy projects, energy efﬁcient technologies,
new low-emission technologies, and sustainable transportation. In its fourth
phase, covering the period 2006-2010, 14.1% of the total projects were in
Africa. The continent is expected to beneﬁt even more in the ﬁfth phase, 2010-
2014. See Global Environment Facility Trust Fund – Climate Change Focal
Area, CLIMATE FUNDS UPDATE, http://www.climatefundsupdate.org/listing/gef-
trust-fund (last visited Nov. 28, 2010).
117 The GCCA is an initiative of the European Union (“EU”) which aims at
building a new alliance between the EU and poor developing countries most
affected by, and with the least capacity to deal with, climate change, Africa is
the biggest beneﬁciary of the initiative, taking home about 69.2% of the total
project expenditure. So far, the initiative has beneﬁted eight African countries
(Mali, Mauritius, Rwanda, Senegal, Seychelles, and Tanzania). For insights, see
Global Climate Change Alliance, CLIMATE FUNDS UPDATE, http://www.climatefund-
supdate.org/listing/global-climate-change-allianc (last visited Nov. 28, 2010).
118 The LDCF, which aims at addressing the special needs of LDCs, “which are
especially vulnerable to the adverse impacts of climate change,” including prepara-
tion and implementation of National Adaptation Programmes of Action, was pro-
posed at COP-7 and operationalized at COP-8 (New Delhi, India, Oct. 23 – Nov. 1,
2002). It is managed by the Global Environment Facility (“GEF”), the multilateral
environmental initiative that brings together over 180 UN Member States and ten
partner institutions. So far, it has beneﬁted over twenty-ﬁve African countries,
including Angola, Burkina Faso, Burundi, the CAR, Cape Verde, Chad, Comoros,
Congo, Djibouti, the DRC, Eritrea, Ethiopia, the Gambia, Guinea Bissau, Lesotho,
Liberia, Malawi, Mali, Niger, Rwanda, Sierra Leone, Senegal, the Sudan, Tanzania,
Uganda, and Zambia. For insights into the Fund, see Least Development Countries
Fund, CLIMATE FUNDS UPDATE, http://www.climatefundsupdate.org/listing/least-
developed-countries-fund (last visited Nov. 28, 2010). For insights into the details
of funding, see Funded Projects, CLIMATE FUNDS UPDATE, http://www.climatefund-
supdate.org/projects (last visited Nov. 28, 2010).
119 The SCCF, whose establishment was proposed at COP-7, was operational-
ized at COP-8. Managed by GEF, it funds “long-term adaptation measures that
increase the resilience of [developing countries’] national development sectors to
the impacts of climate change.” Africa currently takes home about 26.5% of the
total project expenditure, beneﬁting, among others, Egypt, Ghana, and Kenya.
See Special Climate Change Fund, CLIMATE FUNDS UPDATE, http://www.climate-
fundsupdate.org/listing/special-climate-change-fund (last visited Nov. 28, 2010).
120 See Cassandra Sweet, Nations Approve Cancun Climate Package, WALL ST.
J. (Dec. 11, 2010), http://online.wsj.com/article/SB10001424052748703518604
121 African leaders generally feel that the continent is not enjoying equitable access
to the funds, especially those funded under the Clean Development Mechanism
(“CDM”). The leaders blame this on non-inclusion (in the CDM ﬁnancing pack-
age) of emissions from agriculture and other land use practices, which arguably
form important parts of the continent’s economy. See Ramesh Jaura, Africa Paves
the Way for Climate for Development, INDEPTHNEWS (Oct. 23, 2010), http://www.
ing that while Brazil, Mexico, India, and China enjoy hundreds of projects funded
under the CDM, Africa has only a handful of such projects).
122 See AU-ECA-AfDB, Press Release, ECA-AUC-AfDB Joint Secretariat
Launch ClimDev-Afr. at 7th Afr. Dev. Forum (Oct. 13, 2010), http://www.
123 See First Africa Energy Week Highlights Importance of Clean Energy,
AFDB (Nov. 3, 2010), http://www.afdb.org/en/news-events/article/ﬁrst-africa-
energy-week-highlights-importance-of-clean-energy-7401/. See also Confer-
ence of African Ministers in Charge of Energy Maputo, Mozam., Nov. 1-5
2010, Resolution on the “All Africa Energy Week,” AU/MIN/Energy/Res. 2
(Nov. 5, 2010), http://www.au.int/en/dp/ie/sites/default/ﬁles/Resolution_on_
124 See AfDB Launches the African Carbon Support Project, AFDB (Nov. 11,
125 The event provided the “opportunity to share with stakeholders how MDBs
are collaborating to expand access to international ﬁnancing and bolster invest-
ments in climate change” adaptation and mitigation actions. See AfDB Collabo-
rates with MDBs on Climate Finance Innovation, AFDB (Dec. 10, 2010), http://
126 For instance, see Alister Doyle, Analysis: Climate Talks – 18 Years, Too
Little Action?, REUTERS (Dec. 17, 2010), http://www.reuters.com/article/
idUSTRE6BB0DS20101212; John Vidal, Does the Cancún Agreement Show
Climate Leadership?, GUARDIAN (Dec. 13, 2010), http://www.guardian.co.uk/
127 See John M. Broder, Climate Talks End With Modest Deal on Emissions,
N.Y. TIMES (Dec. 11, 2010), http://www.nytimes.com/2010/12/12/science/
earth/12climate.html; Russell Blinch & Chris Buckley, Climate Talks End With
Modest Steps, No Kyoto Deal, REUTERS (Dec. 12, 2010), http://www.reuters.
128 See Sweet, supra note 120.
129 See, e.g., PAN AFR. JUSTICE ALLIANCE, http://www.pacja.org (last visited
Jan. 30, 2011); Hanry Neondo, African CSOs to Lobby Over Gaps in Climate
Change Regimes, ASNS NEWS (Mar. 30, 2008), http://africasciencenews.org/
k=view&id=251&Itemid=2; Strengthening Climate Policy Networks in Africa,
Asia, Latin America and the Paciﬁc, SOUTHERN VOICES CAPACITY BUILDING PRO-
GRAMME (2010), http://careclimatechange.org/ﬁles/policy/SouthernVoices2010.pdf.
130 See, e.g., Africa Enterprise Challenge Fund: Renewable Energy and Adap-
tation to Climate Technologies (REACT), CLIMATE FINANCE OPTIONS, http://
www.climateﬁnanceoptions.org/cfo/node/226 (last visited Jan. 30, 2011); John
Vidal, Government to Fund Private Sector Renewable Energy Schemes for
Africa, Asia, GUARDIAN (Nov. 18, 2010), http://www.guardian.co.uk/global-
Liane Schalatek, EU Bank Creates New Climate Fund, CLIMATE EQUITY (May 13,
131 The Fund provides competitive grants and interest-free loans to African
entrepreneurs who wish to implement innovative climate change adaptation
projects in agriculture, ﬁnancial services, renewable energy, and technology
sectors. It is funded by the Australian Government Aid Program, the Consulta-
tive Group to Assist the Poor, the UK Department for International Develop-
ment, the International Fund for Agricultural Development, and the Netherlands
Ministry of Foreign Affairs, and managed by the KPMG Development Advi-
sory Services. It is a special partnership initiative of the Nairobi-based Alli-
ance for a Green Revolution in Africa, which was established in 2006 by the
Rockefeller Foundation and the Bill & Melinda Gates Foundation to improve
agricultural productivity and the well-being of small-holder farmers in Sub-
Saharan Africa. For details, see AECF FUNDING INNOVATION FOR BUS. IN AFR.,
http://www.aecfafrica.org (last visited Jan. 29, 2011).
132 Conference of the Parties to the Convention on Biological Diversity, Tenth
Meeting, Nagoya, Japan, October 18-29, 2010, Access to Genetic Resources
and Fair and Equitable Utilization of Beneﬁts Arising from their Utilization
(Oct. 29, 2010), UNEP/CBD/COP/DEC/X/1, opened for signature Feb. 2,
Ch-XXVII-8-b.pdf (adopting the instrument more commonly known as the
19 Jonathan Faurie, Will Proposed Feed-in-Tariffs be Sufﬁcient to Kickstart
New Energy Economy?, ENGINEERING NEWS ONLINE (Jan. 30, 2009), http://www.
20 ALLIANCE FOR RENEWABLE ENERGY, http://www.allianceforrenewableenergy.
org/why-reps.html (last visited Mar. 12, 2011).
ENDNOTES: IMPLEMENTING A RENEWABLE ENERGY FEED-IN TARIFF IN SOUTH AFRICA: THE BEGINNING OF A NEW DAWN
continued from page 49
WINTER 2011 90
21 PAUL GIPE, RENEWABLE ENERGY POLICY MECHANISMS 1 (2006), http://www.
REFIT, supra note 1, at 1.
NERSA’s Feed-in Tariff: Will It Work for SA?, 25 DEGREES IN
AFRICA (Mar. 2009), http://www.25degrees.net/index.php?option=com_
DME WHITE PAPER, supra note 12.
NAT’L ENERGY REGULATOR OF S. AFR., SOUTH AFRICA RENEWABLE ENERGY
FEED-IN TARIFF (REFIT) REGULATORY GUIDELINES 16 (2009).
Id. A terawatt hour is an electrical unit equal to one trillion (1012) watts
(1,000,000 megawatts) used for one hour.
Gipe, supra note 18.
Sovacool, supra note 14.
31 Wilson Rickerson et al., If The Shoe FITs: Using Feed in Tariffs to Meet US
Renewable Electricity Targets, ELECTRICITY J., May 2007, at 79.
Sovacool, supra note 14.
33 REFIT, supra note 1, at 4.
eReact Making Progress in South Africa, E-PARLIAMENT.NET (Jul. 21, 2008),
35 Ruth Rabinowitz, REFIT and Incentives Bills (Dec. 18, 2008) (on ﬁle with
36 eReact Making Progress in South Africa, supra note 34.
38 Rabinowitz, supra, note 35.
40 See id.; Gipe, supra note 18; eReact Making Progress in South Africa, supra
note 34; Turning Point for ‘Green’ Energy, FIN24 (Apr. 2, 2009), http://www.
REFIT, supra note 1, § 3.5(iV).
42 Kruschen Govender, Plotting a Future for Renewable Energy in South
Africa, TRADEINVEST S. AFR. (Nov. 24, 2008), http://www.tradeinvestsa.co.za/
REFIT, supra note 1.
Id. at 1.
46 Sovacool, supra note 14.
REFIT, supra note 1.
Id. § 3.
Id. § 3.1.
Id. § 3.2.
JANET SAWIN, NATIONAL POLICY INSTRUMENTS: POLICY LESSONS FOR THE
ADVANCEMENT & DIFFUSION OF RENEWABLE ENERGY TECHNOLOGIES AROUND THE
WORLD 4 (2004), http://siteresources.worldbank.org/EXTRENENERGYTK/
REFIT, supra note 1, § 3.3.
Id. § 3.5(ii).
Id. § 4.4 (“With the aim of supporting the wider green electricity market
and ensuring ﬂexibility in the market, renewable energy IPPs are permitted to
sell power direct to buyers wishing to purchase renewable energy outside of the
Id. § 5.5(iii).
Id. § 3.5(v).
61 Id. § 3.6.
Id. § 4.5.
See generally Randall Spalding-Fecher et al., The Economics of Energy Efﬁ-
ciency for the Poor—A South African Case Study, 27 ENERGY 1099 (2002); GIL-
BERT MBESHERUBUSA, ACTING AGAINST ENERGY POVERTY IN AFRICA (2009), http://
Agnieszka Flak, SAfrica’s Eskom Granted a 31.3 Pct Tariff Increase,
REUTERS (Jun. 25, 2009), http://in.reuters.com/article/2009/06/25/eskom-tariffs-
68 Sovacool, supra note 13, at 1536.
NERSA CONSULTATION PAPER, supra note 10.
REFIT, supra note 1.
Id. § 5.5(i).
Id. § 5.5.
The REFIT regulations do not deﬁne “off-grid.” But the term “off-grid” is
commonly understood as relating to something not connected to a centralized
distribution network. See Off-Grid, DICTIONARY.COM, http://dictionary.reference.
com/browse/off-grid (last visited Feb. 7, 2011).
REFIT, supra note 1, § 5.7.
Leandi Cameron, The Case for Including Photovoltaics and Biomass Into
REFIT System, ENGINEERING NEWS (June 26, 2009), http://www.engineering
REFIT, supra note 1, § 6.4.
See NERSA CONSULTATION PAPER, supra note 10, at 4.
REFIT, supra note 1, § 7.4.
Id. § 7.5.
Id. § 7.6.
Terence Creamer, Green Energy Gets Shot in the Arm With Generous SA
Tariff Regime, ENGINEERING NEWS (Mar. 31, 2009), http://www.engineering-
REFIT, supra note 1.
Id. § 8.5.
Id. § 11.4(iii).
89 Spalding-Fecher et al., supra note 64.
REFIT, supra note 1, § 12.
Electricity Regulation Act 4 of 2006 § 42(3) (S. Afr.).
Id. § 42(4).
Id. § 42(1)-(2).
National Energy Regulator Act 40 of 2004 § 10(3)(4)(a)(b) (S. Afr.).
S. AFR. CONST., Act 108 of 1996, http://www.info.gov.za/documents/
ENDNOTES: NATIONAL SECURITY IN THE 21ST CENTURY: HOW THE NATIONAL SECURITY COUNCIL CAN SOLVE THE
PRESIDENT’S CLIMATE CHANGE PROBLEM continued from page 55
17 See generally HANSEN ET AL., supra note 1; FLANNERY, supra note 1.
18 FLANNERY, supra note 1, at 161.
19 See id. (questioning the IPCC ﬁndings and explaining the likelihood that
modeling data is underestimating the actual impacts of climate change, possibly
from a lack of understanding about feedback loops).
20 See, e.g., HANSEN ET AL., supra note 1, at 13, 16 (promoting the aggressive
pursuance of 350 ppm CO2 targets in order to avoid irreversible dynamic altera-
tions to climate based on observations of paleoclimate data).
21 E.g., FLANNERY, supra note 1, at 155 (explaining that ten GCMs currently
exist in the world, where researchers create global climate modeling systems
based on massive data inputs to create computer programs that accurately recre-
ate previous, i.e. known, weather events and climate changes, thereby proving
the accuracy of the modeling program to accurately predict future climate
changes, and that the leading one is the Hadley Centre in England).
22 Id. at 155-56.
24 Id. at 28-29.
25 BERNSTEIN ET AL., supra note 4, at 45 (providing data from IPCC Special Report
on Emissions Scenarios 2000 with projections varying between 1.8°C and 4.0°C).
26 E.g., FLANNERY, supra note 1, at 161 (explaining that CO2 levels at the end of
the last ice age increased by only one hundred ppm yet resulted in 9°F increase
in average global surface temperatures).
SUSTAINABLE DEVELOPMENT LAW & POLICY91
27 National Defense Authorization Act for Fiscal Year 2008, 110 Pub. L.
181, 122 Stat. 3 (2008) (codiﬁed at 10 U.S.C.S. § 118(g)(2)) (specifying
that national security issues include impacts of climate change, speciﬁcally
mentioning severe weather events impacting both U.S. domestic and foreign
28 See 10 U.S.C.S. § 118(g)(2) (expressing Congressional belief that increased
storm frequency and severity is occurring, straining military capabilities, and
threatening military infrastructure); BERNSTEIN ET AL., supra note 4, at 13 (pro-
jecting a likely increased intense tropical cycles); CNA CORP., NATIONAL SECU-
RITY AND THE THREAT OF CLIMATE CHANGE 6, 32-34 (2007), http://www.cna.org/
Climate%20Change.pdf (ﬁnding of retired military commanders that the sci-
ence supports increased tropical storm severity and frequency, which adversely
impacts maintenance and stability of ships and ﬂeets).
29 E.g., FLANNERY, supra note 1, at 124-27 (arguing that conﬂict is not about
geographic location in the world or conﬂicting religious beliefs, but stems from
an instinct for survival, which is threatened when resources are scarce, thus
leading to increased violence against any perceived threat).
30 E.g., DAVID TITLEY, Rear Admiral, United States Navy, Presentation at the
American Meteorological Society Climate Brieﬁng Series: Climate Change &
National Security (June 4, 2010), http://www.ametsoc.org/atmospolicy/climat-
ebrieﬁng/titley.html (explaining real anticipated challenges to Naval operations
in the next century in adapting to climate change, and advocating for efforts
to mitigate changes, including a commitment by the Secretary of the Navy to
reduce the Navy’s carbon footprint by twenty percent by 2020 from 2008 levels).
31 E.g., id. (noting the impact on security issues from displaced persons when
land ceases to exist where it previously did); CNA CORP., supra note 28, at
32-34 (explaining that the United States has a major logistics hub located on
an atoll in the Indian Ocean, Diego Garcia, which has maximum elevation of
only four feet above sea level); BERNSTEIN ET AL., supra note 4, at 12 (projecting
increased inundation of island communities that will threaten infrastructure and
reduce access to fresh water sources on small islands).
32 CNA CORP., supra note 28, at 35 (relating a story from retired U.S. Army
General Paul J. Kern about personnel missing a NATO training activity, with
months of planning invested, because personnel and equipment had to be relo-
cated around the country when hurricane Hugo hit the Fort Stewart, Georgia,
where the mission was scheduled to depart from).
33 See id. at 37 (referencing also Hurricane Ivan in 2004, which removed Naval
Air Station Pensacola from service for nearly a year while repairs were made).
34 TITLEY, supra note 30 (explaining concerns that accompany the Navy’s
forecast that the arctic will be ice-free for approximately four to six weeks each
year by the mid to late 2030s).
35 FLANNERY, supra note 1, at 140 (citing FREDERICK K. LUTGENS & EDWARD J.
TARBUCK, THE ATMOSPHERE: AN INTRODUCTION TO METEOROLOGY (Pearson Pren-
tice Hall 2004)).
36 Id. at 140.
37 See, e.g., BERNSTEIN ET AL., supra note 4, at 11 (projecting regionalized
impacts of climate change).
38 FLANNERY, supra note 1, at 131 (referencing the ongoing drought of the U.S.
West, which in 2004 was in its ﬁfth year of drought, and drawing parallels to
Darfur, Sudan, noting that such severe hot and dry conditions had not been seen
in the region in 700 years).
41 See CNA CORP., supra note 28, at 16-18 (explaining the security conse-
quences of the destabilizing effects of climate change).
43 Id. (pointing to the examples of the Rwandan genocide resulting from insuf-
ﬁcient agricultural resources and ongoing situation in Darfur, which began as a
conﬂict between farmers and ranchers over scarce food and water supplies).
44 CHRISTINE PARTHEMORE & WILL ROGERS, SUSTAINING SECURITY: HOW NATURAL
RESOURCES INFLUENCE NATIONAL SECURITY 9 (2010), http://www.cnas.org/ﬁles/
ers.pdf (referring to ﬁndings of the United Nations for the number and cause of
45 E.g., CNA CORP., supra note 28, at 16 (mentioning both Hezbollah in Leba-
non and the gang First Capital Command in Brazil as examples of how extra-
governmental extremists ﬁll the power vacuum when large populations are left
without the basic beneﬁts of government).
46 PARTHEMORE & ROGERS, supra note 44, at 5.
47 LILIANA HISAS, THE FOOD GAP: THE IMPACTS OF CLIMATE CHANGE ON GLOBAL
FOOD PRODUCTION: A 2020 PERSPECTIVE, at iii, 6, 12-35 (2011), http://www.
eenews.net/assets/2011/01/19/document_cw_02.pdf (explaining the likelihood,
based on the IPCC’s own data and projections, that Earth will experience a
2.4°F increase in temperature by 2020 based on current business-as-usual pat-
terns, likely resulting in global food shortages); Accord CNA CORP., supra note
28, at 16 (commenting that forty percent of the world population will live in a
country experiencing signiﬁcant water shortages by the year 2025).
48 HANSEN ET AL., supra note 1, at 13 (citing SUSAN SOLOMON ET AL., IPCC
CLIMATE CHANGE 2007, 996 (2007) and MICHAEL D. MASTRANDREA & STEPHEN
H. SCHNEIDER, Probabilistic Integrated Assessment of “Dangerous” Climate
Change, 304 SCI. 571-75 (2004)).
49 E.g., FLANNERY, supra note 1, at 161 (urging climate change action by the
United States, during the Bush Administration, despite claims of concern about
“uncertainty” in the science, on the grounds that massive scientiﬁc advances
over thirty years of climate research have not dramatically reduced uncertainty,
since humanity cannot absolutely predict the future).
50 E.g., JEFFREY MAZO, Research Fellow for Envtl. Sec. & Sci. Policy, Int’l
Inst. for Strategic Studies, Presentation at the American Meteorological Society
Climate Brieﬁng Series: Climate Change & National Security (June 4, 2010)
(explaining that many countries where climate change will likely have an
adverse impact on global terrorism are already vulnerable or failing states, so
future failure will not be a surprise, but will multiply the threat faced; however,
new threats from states that are not currently in danger of collapse, like North
Korea, Indonesia, and Columbia, could be pushed that direction by severe water
and food scarcity; hence multiplying threats that currently exist).
51 E.g., CNA CORP., supra note 28, at 17 (quoting Retired U.S. Navy Admiral
T. Joseph Lopez, Former Commander-in-Chief of U.S. Naval Forces in Europe
and of Allied Forces in Southern Europe).
52 E.g., id. (quoting Retired Navy Admiral Joseph Lopez, explaining why climate
change promotes terrorism risks and threatens U.S. national security into the future).
53 E.g., PARTHEMORE & ROGERS, supra note 44, at 19 (highlighting the impor-
tance of Yemen’s precariously increasing risk of drought because destabiliza-
tion or a failed state in the Arab peninsula region would threaten regional trade
routes and global security).
54 See FLANNERY, supra note 1, at 143 (noting the extreme ﬂooding risk to Ban-
55 See CNA CORP., supra note 28, at 13 (explaining that even governments
which appear stable may be unable to deal with climate change stresses and that
ineffective government breeds extremism); see also FLANNERY, supra note 1,
at 177, 288 (attributing the dense human population distributions in mountain
valleys in tropical climates like Mexico City and Papua New Guinea, and not
in the valleys below, to the occurrence of malaria in the massive forests below);
PARTHEMORE & ROGERS, supra note 44, at 17-19 (supporting the proposition that
these factors are connected).
56 CNA CORP., supra note 28, at 31 (quoting Retired Marine Corps General
Anthony C. Zinni, the former Commander-in-Chief of U.S. Central Command,
explaining the high price the United States will pay in the future—in human
lives and U.S. dollars lost in the war on terror—if we do not instead choose
now to spend our dollars to reduce greenhouse gas emissions).
58 See, e.g., FLANNERY, supra note 1, at 165 (highlighting challenges human-
ity will face with only a global surface temperature rise of 3.6°F which would
result in an 8.1°F increase for Europe, Asia, and the Americas).
59 E.g., CNA CORP., supra note 28, at 13 (asserting that even a modest rise in
temperature of only 2° to 4°F can result in increased ﬂooding with less snow
and ice available for much needed runoff water in the dry summer months).
60 PARTHEMORE & ROGERS, supra note 44, at 17 (citing ORG. FOR ECON. COOP-
ERATION & DEV., OECD ENVIRONMENTAL OUTLOOK TO 2030 (2008) and WORLD
WATER ASSESSMENT PROGRAMME, WATER IN A CHANGING WORLD, UNITED NATIONS
WORLD WATER DEVELOPMENT REPORT NO. 3 (2009), http://www.unesco.org/
61 E.g., CNA CORP., supra note 28, at 15 (explaining that good health and
access to fresh water are necessarily linked).
62 E.g., FLANNERY, supra note 1, at 177, 288 (raising concerns about what
will happen to populations that are currently not exposed to malaria and have
no immunity to the disease once a rapid exposure to the disease begins; CNA
CORP., supra note 28, at 15 (ﬁnding an increase in disease and reduced overall
health will result from temperature increases and other climate change impacts,
as identiﬁed by the World Health Organization).
63 E.g., FLANNERY, supra note 1, at 124-27 (explaining that a “drought” is a
temporary and transient lack of precipitation, but what is beginning to occur in
regions around the planet is actually a new, drier, Saharan-like climate where
there is no expectation that rain will return).
WINTER 2011 92
64 E.g., BERNSTEIN ET AL., supra note 4, at 13 (projecting a likely increase the
amount of area affected by drought, creating more widespread water stress,
increased risk of food and water shortages and of water- and food-borne dis-
eases, reduced ability to produce hydropower, and exacerbating the potential
for large-scale population migrations).
65 FLANNERY, supra note 1, at 124-27; CNA CORP., supra note 28, at 20.
66 E.g., CNA CORP., supra note 28, at 22 (explaining the geopolitical landscape
of the future will be one of scarcity, exacerbating migrations to Europe and
within Africa, which already increases tensions and adds to national security
67 FLANNERY, supra note 1, at 143.
68 See id. (explaining the planned construction of a “super dyke” in The Neth-
erlands to protect the country from the rising oceans).
70 E.g., TITLEY, supra note 30 (asking “what will happen” to these hungry and
displaced populations living under weak governmental regimes, and positing
that military leaders believe such scenarios present increasing threats to U.S.
security due to increased demands on humanitarian aid missions in addition to
increased incidence of terrorism and extremism resulting from desperation).
72 THE WHITE HOUSE, supra note 2, at 26 (discussing how the United States can
best go about advancing its own national interests).
73 See id. at 47 (calling for increased fuel efﬁciency standards and investment
in renewable energy technologies with the goal of cutting U.S. emissions by
seventeen percent by 2020 and more than eighty percent by 2050 as the (no
doubt inadequate) solution).
76 E.g., CODY M. BROWN, THE NATIONAL SECURITY COUNCIL: A LEGAL HISTORY
OF THE PRESIDENT’S MOST POWERFUL ADVISERS, at ii (2008), http://www.pnsr.org/
data/images/the%20national%20security%20council.pdf (citing Uniﬁcation of
the War and Navy Departments and Postwar Organization for National Secu-
rity, Report to Hon. James Forrestal, Committee on Naval Affairs 47, 7 (1945)).
77 Id. at 1-6.
78 See, e.g., DOUGLAS T. STUART, Foreword to BROWN, supra note 76 (relating
how Americans responded to the surprise attack on Pearl Harbor by desiring
a new, high-level mechanism for coordination and implementation of policies
that would effectively protect the United States from threats).
79 See BROWN, supra note 76.
80 National Security Act of 1947, Pub. L. 80-253, 61 Stat. 495 § 2 (codiﬁed at
50 U.S.C. § 401 (2006)).
81 Id. (emphasis added).
82 See generally id. (providing no guidance as to what qualiﬁes as national
security issues, only requiring that strong uniﬁed efforts must be made to pro-
tect national security and a uniﬁed defense).
83 See National Security Act, 50 U.S.C. § 402(a) (2006) (emphasis added) (cre-
ating the National Security Council and establishing the broad purpose of the
council to promote policies and activities increasing national security across all
parts of the federal government).
84 See 50 U.S.C. § 402(b) (indicating the President was authorized to task the
Council with other duties to advise and monitor the implementation of the poli-
cies created to protect the national security).
85 See, e.g., BROWN, supra note 76, at 2-3 (explaining the sentiment of the
Committee on Naval Affairs that the NSC must ﬁll a policy advisory role lest it
usurp the authority of the executive in holding power to direct foreign affairs in
the name of national security).
86 E.g., id. at 39 (noting the authority Congress can assert when it believes the
Executive is exceeding appropriate authority, as happened with the War Powers
88 See 93 CONG. REC. 9895 (July 21, 1947) (statement of Sen. Lodge) (express-
ing fear of an immobile and inﬂexible security program incapable of meeting
the needs of a future war due to provisions insisted upon by the House that
seemingly codiﬁed what general types of warfare tactics each service could
engage in; arguing that Congress should not presume any ability to foresee the
future by cementing such decisions in statute).
89 See BROWN, supra note 76, at 3-4 (citing an exchange on the Senate ﬂoor
between Senators Leverett Saltonstall and Ray Baldwin expressing that the
purpose of the NSC would not be as an administrative agency, but solely as an
advisory committee, found at 93 CONG. REC. 8497 (July 9, 1947)).
90 See id. at 10, 81 (quoting Robert Cutler, the U.S.’s ﬁrst National Security
Advisor, that under the ﬂexible framework in the NSA, “each President may
avail himself of the mechanism in whatever way he ﬁnds best suited to his
needs” and arguing that the NSC’s development was not the result of Congress
but of powerful Executive actions necessarily resulting from the complicated
task of coordinating and effectively implementing national security policies).
91 See id. at 11, 13, 17 (elucidating the policies and practices of each President
in using and transforming the NSC since its inception, explaining the differ-
ent approaches taken speciﬁcally by President’s Truman and Eisenhower, and
referring to President Dwight D. Eisenhower’s Message to Congress (Apr. 3,
1958) (advocating for unifying changes so that in any future war the United
States would ﬁght “in all elements, with all services, as one single concerted
effort” and advancing his belief that “peacetime preparatory and organizational
activity must conform to this fact”) and Reorganization Plan No. 4 of 1949,
63 Stat. 1067 (eff. Aug. 20, 1949), which moved the NSC into the Executive
Ofﬁce of the President, and indicating that efforts by members of the NCS to
establish themselves as implementers of policy was rejected by Truman).
92 See Exec. Order No. 10483, 18 Fed. Reg. 5379, Establishing the Operations
Coordinating Board (Eisenhower, Sept. 2, 1953) (later amended by E.O. 10598;
superseded by E.O. 10700; revoked by E.O. 10920 (Feb. 18, 1961)).
93 See BROWN, supra note 76, at 24-26 (referencing Senator Jackson’s recom-
mendation as Chairman of the Senate Government Operations Subcommittee
on National Policy Machinery that a President use the NSC as an inner circle
for policy and strategy debate rather than as a policy development bureaucracy
and subsequent implementation bureaucracy following Presidential adoption of
94 E.g., id. at 27-29 (citing NSAM-196, Establishment of an Executive Com-
mittee of the National Security Council (Kennedy, Oct. 22, 1962) which
included all members of the NSC, speciﬁcally to ensure “effective conduct of
the operations . . . in the current crisis”).
95 E.g., id. at 7, 39 (explaining how Congress’s discomfort was evidenced by
its assertion of authority in the War Powers Resolution, Pub. L. No. 93-148, 87
Stat. 555 (1973) (codiﬁed at 50 U.S.C. § 1541 et seq.), which was passed in the
aftermath of President Nixon’s fall from grace and stretched to the very limits
its Constitutional power in limiting the authority of the Executive, and the 1974
Amendments to the Foreign Assistance Act of 1961 (Pub. L. No. 93-559, 88
Stat. 1795 (1974)); CHRISTOPHER C. SHOEMAKER, THE NSC STAFF: COUNSELING
THE COUNCIL 18 (1991) (claiming that the NSC rebounded in the mid-1970s
as it became clear that “only the White House could effect the coordination
demanded by the mounting completing of the international system”).
96 BROWN, supra note 76, at 47-59 (explaining the changes Reagan made to the
NSC during his tenure and the facts surrounding the Iran-Contra affair, leading
to Congressional oversight hearings and the reworking of the NSC structures
97 See id. at 55 (describing how the NSC became involved in implementing
foreign policy through the sale of arms to Iran in exchange for hostages and
the funneling of excess funds earned from the arms sales to Nicaraguan rebels,
exceeding the scope of the authority to “advise” the President on national secu-
rity policy and explaining the streamlined, smaller NSC organization with the
“Senior Review Group” and the “Policy Review Group”).
98 Id. at 57-58 (explaining how the “Principles Committee” (“PC”), was made
up of the Secretaries of State and Defense and the National Security Advisor,
Chairman of the JCS, Director of Central Intelligence, and the President’s Chief
of Staff, who were all able to implement the policy within their department
once the group had reached a policy decision, and identifying the other two
sub-groups within the NSC as the Deputies Committee—made up of the agency
deputies to the principles, which was the primary policy group and the Policy
Coordinating Committee, consisting of assistant secretaries in the depart-
ments—which primarily identiﬁed and suggested policy issues for the NSC to
take into consideration).
99 Id. at 63, 72-74.
100 See id. at 76.
101 Exec. Order No. 13228, 66 Fed. Reg. 51812, Establishing the Ofﬁce of
Homeland Security and the Homeland Security Council (George W. Bush, Oct.
8, 2001) (amended E.O. 12656; later amended by E.O. 13284 and E.O. 13286);
BROWN, supra note 76, at 75-77.
102 See BROWN, supra note 76, at 77 (noting the difference in responsibilities to
the PCCs between the NSC and the Presidentially created HSC).
103 6 U.S.C. §§ 491, 494 (2006) (creating, statutorily, the HSC and deﬁning its
functions in assisting the President).
104 50 U.S.C. §402(b).
105 See 104 CONG. REC. S10625 (daily ed. Sept. 17, 1996) (statements of Sens.
Specter, R-PA and Kerrey, D-NE) (referring to recent terrorist attack on Khobar
Towers and the Aldrich Ames spy incident, among other examples to support
SUSTAINABLE DEVELOPMENT LAW & POLICY93
the need for ﬂexible thinking and progressive national security programs to
meet the ever changing challenges of the future).
106 See Intelligence Renewal and Reform Act of 1996, Pub. L. No. 104-293, §
803, 110 Stat. 3461 (1996) (codiﬁed at 50 U.S.C. § 402).
107 See 50 U.S.C. § 402(i) (amending the NSA in 1996 in response to newly
perceived and developing threats); BROWN, supra note 76, at 27-29.
108 See 50 U.S.C. § 402 (contained in the Intelligence Authorization Act for
FY 1997) (adding a Committee on Foreign Intelligence, making changes to the
annual intelligence reports, and fourteen other substantive additions or changes
to the National Security statute).
109 1993 World Trade Center Bombing, FED. BUREAU OF INVESTIGATION (Feb. 26,
2008), http://www.fbi.gov/page2/feb08/tradebom_022608.html (noting the ﬁrst
bombing attack on the World Trade Center on February 26, 1993); History and
Mission, OKLA. CITY NAT’L MEM’L & MUSEUM, http://www.oklahomacityna-
tionalmemorial.org/secondary.php?section=1 (discussing the bombing of the
Oklahoma City Federal Building on April 19, 1995) (last visited Feb. 15, 2011).
110 50 U.S.C. §402(i)(5)(A) (emphasis added).
111 §402(i)(5)(B) (emphasis added).
112 §402(i)(3) (emphasis added).
113 §402(i)(4) (emphasis added).
115 See generally BROWN, supra note 76 (providing a history of the NSC).
116 See 142 CONG. REC. H11054 (daily ed. Sept. 25, 1996) (statement of Rep.
Goss) (adopting the Conference Report and enacting Intelligence Authorization
Act for FY 1997, including the Intelligence Renewal and Reform Act of 1996).
117 142 CONG. REC. H5389 (daily ed. May 22, 1996) (statement of Rep. Richard-
son) (acknowledging “world economies” as a component of global intelligence
necessary for policy makers, in addition to the traditional weapons of mass
destruction, terrorists, and narcotics).
118 142 CONG. REC. H11054 (daily ed. Sept. 25, 1996) (statement of Rep. Dicks)
(calling for a security strategy adapted to 21st century threats).
119 104 CONG. REC. S10625 (daily ed. Sept. 17, 1996) (statement of Sen. Kerry)
(stating the purpose in creating the two committees—the CTT and the Foreign
Intelligence Committee—was to provide the President with the necessary tools
to affect change, should the President choose to use them and to bring these
types of threats to the forefront for policy-makers who sometimes ignore intelli-
gence warnings, and remain focused on threats of past world paradigms, rather
than follow in the “moribund” footsteps of the NSCs Low Intensity Conﬂict
Board which had become ineffective).
120 142 CONG. REC. S10625 (daily ed. Sept. 17, 1996) (statement of Sen. Specter).
121 142 CONG. REC. H5389 (daily ed. May 22, 1996) (statements of Reps.
Skaggs and Weldon).
122 See H.R. REP. NO. 104-832, at 38, 40 (1996) (Conf. Rep.) (stating the Com-
mittee function includes not just developing strategies to respond to transna-
tional threats in a coordinated way, but also assisting in resolving operational
differences between departments and ensuring effective information sharing by
developing uniﬁed policies and procedures).
123 Transnational, MERRIAM-WEBSTER DICTIONARY ONLINE, http://east.merriam-
webster.com/dictionary/transnational (deﬁning “transnational” as “extending or
going beyond national boundaries”) (last visited Feb. 15, 2011).
124 See BERNSTEIN ET AL., supra note 4, at 11-15 (providing examples of
expected negative impacts to all regions of the planet, specifying what types
of negative impacts to expect, and identifying water, agriculture, infrastruc-
ture, human health, tourism, transportation, and energy as sectors that will
be impacted and require adaptation to these negative climate impacts); CNA
CORP., supra note 28 (identifying both direct climate threats and threats from
increased extremism in response to destabilized governments resulting from
climate change); FLANNERY, supra note 1, at 124-27 (noting decreased resources
necessary for survival leads to increased desperation and increased destabilization).
125 E.g., 50 U.S.C. § 401 (declaring the intent of Congress). See also BROWN,
supra note 76, at 3-5 (noting the remarkable breadth of the NSA calling for a
modernized national security system, though focused on the military institutions).
126 See Exec. Order No. 13434, 72 Fed. Reg. 28,583 (May 17, 2007) (intending
no doubt to reach “manmade disasters” like terrorist events, but also includ-
ing other manmade disasters like anthropogenic climate change which leads
to altered precipitation patterns, increased temperatures, the resulting food
shortages and economic devastation which leads to government destabilization
abroad and enhanced threats to the U.S.; also creating a Steering Committee,
including both the Secretaries of Energy and Agriculture, to “facilitate the
implementation” of an integrated education system to ensure national security
personnel have the skills and knowledge to protect the nation, leaving what is
needed to the Steering Committee to establish).
127 See National Defense Authorization Act for Fiscal Year 2008, 110 Pub. L.
181, 122 Stat. 3 (2008) (codiﬁed at 10 U.S.C.S. §118) (providing funding for
the Department of Defense).
128 See id. (codiﬁed at 10 U.S.C.S. § 118(g)(2)) (extending national defense
and security issues to include impacts of climate change and requiring the
Department of Defense to include planning and preparations for such impacts
in reports to Congress, speciﬁcally requiring information on “preparedness for
natural disasters from extreme weather events and other missions the armed
forces may be asked to support inside the United States and overseas”).
129 See 50 U.S.C. § 404(a) (requiring the President to transmit an NSS to Con-
gress each year on the date he transmits the budget proposal for the next ﬁscal
year and stating required topics for the President to address in the NSS includ-
ing explaining U.S. interests, goals, and objectives vital to national security
and efforts to deter aggression, and long- and short-term plans for meeting U.S.
national security interests, and any additional information the President believes
would be useful to Congress that relates to national security).
130 See 110 Pub. L. 181 (codiﬁed at 10 U.S.C.S. § 118(g)(1)) (requiring altera-
tions to planning in accordance with these new risks, and to work “with allies
and partners to incorporate climate mitigation strategies, capacity building, and
relevant research and development” (emphasis added)).
131 See Massachusetts v. EPA, 549 U.S. 497 (2007) (requiring the EPA to
regulate CO2 and greenhouse gasses as pollutants under the Clean Air Act, 42
U.S.C. § 7521(a)(1) which requires EPA set emissions standards for air pol-
lutants which cause, contribute to, or may reasonably be expected to endanger
public health or welfare).
132 See 42 U.S.C. § 7521(a)(1) (limiting the authority of the EPA Administrator
to regulate such emissions to when those emissions endanger public health or
welfare, not when it endangers national security).
134 50 U.S.C. § 401.
135 See THE WHITE HOUSE, supra note 2, at 51 (asserting that the NSS takes
a broad view of what constitutes national security and seeks a full range of
actions to address the myriad challenges identiﬁed, the President correctly
attempts to implement this broad deﬁnition, including the release of CO2 by all
136 50 U.S.C. § 401.
137 110 Pub. L. 181 § 951 (codiﬁed at 10 U.S.C.S. § 118(g)(1)).
138 See FLANNERY, supra note 1, at 245-46 (decrying the invalidity of the IPCC’s
ﬁndings based on the political inﬂuences exerted by the member nations and
warning that while you had better believe whatever the IPCC says, but also then
believe that it is likely that the actual situation is “far worse than” the IPCC
says it is).
139 50 U.S.C. § 401(a) (deﬁning “intelligence” and “foreign intelligence” for
national security reasons as all intelligence that pertains to more than one U.S.
government agency under presidential guidance, and that involves “threats
to the United States, its people, property, or interests” among other possible
options, further supporting the conclusion that climate change does fall within
the purview of national security issues, since it meets the deﬁnition of national
security intelligence). See FLANNERY, supra note 1, at 245-46 (critiquing politi-
cal inﬂuences that undermine science in IPCC ﬁndings); PETER SCHWARTZ &
DOUG RANDALL, AN ABRUPT CLIMATE CHANGE SCENARIO AND ITS IMPLICATIONS FOR
UNITED STATES NATIONAL SECURITY 4 (2003),
(providing plausible abrupt climate change scenarios in advocating U.S. consid-
eration of such possibilities in national security planning).
140 See HANSEN ET AL., supra note 1, at 217-18 (recommending the reduction of
CO2 to 350 ppm immediately, or else as quickly as possible); FLANNERY, supra
note 1, at 6 (arguing that the best available science shows global CO2 emissions
need to be reduced by seventy percent by the year 2050 to stabilize carbon lev-
els and the climate); Climate Change: Halving Carbon Dioxide Emissions by
2050 Could Stabilize Global Warming, SCIENCEDAILY (May 4, 2009),
a ﬁfty percent reduction from 1990 levels by the year 2050).
141 See THE WHITE HOUSE, supra note 2, at 9 (acknowledging that when U.S.
security has previously been threatened by signiﬁcant challenges, massive coor-
dinated responses were required to defeat those threats and that the United States
currently faces similar challenges requiring aggressive, targeted programs).
142 See Hansen et al., supra note 1, at 17 (comparing the “Herculean” effort
required to eliminate the use of coal that does not capture CO2 over the next
twenty to twenty-ﬁve years with the effort required to protect the U.S. and
global security during World War II and arguing that WWII was the signiﬁ-
cantly larger challenge).
WINTER 2011 94
143 See Nick Taylor, Works Progress Administration, N.Y. TIMES (Jan. 5,
works_progress_administration/index.html (explaining that the WPA was more
than just a jobs program during hard economic times, but a strategic investment
to address the U.S.’s weak infrastructure of unpaved roads, dangerous bridges,
insufﬁcient water and sewage systems, inadequate airports, hospitals and
schools, and degraded forests and parks around the country).
144 See id. (recalling that the WPA employed 8.5 million people during the eight
years it was in existence); Roosevelt to Make Jobs for 3,500,000 Now on Relief;
Pushes his Social Program, N.Y. TIMES (Jan. 5, 1935), http://graphics8.nytimes.
145 See, e.g., Ron Scherer, Unemployment Extension 101: What You Need to
Know, CHRISTIAN SCIENCE MONITOR (July 22, 2010), http://www.csmonitor.com/
(noting that this is the fourth extension of unemployment beneﬁts to aid unem-
ployed workers as the economic downturn lingers, costing thirty-four billion
dollars in this extension alone).
146 See THE WHITE HOUSE, supra note 2, at 34 (claiming economic advantage
exists for the country that leads the way to the new low carbon economy);
FLANNERY, supra note 1, at 246-47 (highlighting the case of BP which made a
proﬁt by reducing the company’s CO2 emissions through photovoltaic cells,
and also explaining a thirty-six percent increase in British national economic
growth during a period where CO2 emissions dropped by ﬁfteen percent
through creation of a Carbon Trust and requirements that power suppliers get
over ﬁfteen percent of their energy from renewable resources).
147 See Henry Petroski, On the Road, 94 AM. SCI. 396-99 (2006) (explaining
how President Eisenhower believed the national interstate highway system was
necessary for U.S. security based on his own experiences traveling across the
country in the Army and after witnessing the effectiveness of the German auto-
bahn while serving as an Allied Commander in World War II).
148 See CNA CORP., supra note 28, at 38 (highlighting the delicate nature of the
national power grid which was thrust into an eight-state, and parts of Canada,
regional blackout in 2003, costing four to ten billion dollars and impacting ﬁfty
million people because trees fell on power lines in Ohio).
149 See id. (comparing the vulnerabilities faced by the military to civilian energy
supplies and offering a combination of increased energy efﬁciency, use of
renewable energy sources, and removing installations from the national grid as
one potential solution for military security, though civilians and business would
still be at risk and thus risking the national security).
150 Id. at 39 (explaining how military commanders in Afghanistan and Iraq
requested new renewable energy technologies to improve operations as well as
reduce danger to the fuel supply convoys).
152 Id. at 25 (quoting Retired U.S. Navy Admiral Joseph W. Prueher’s explana-
tion of why the United States must engage China and convince them to move to
a low-carbon or carbon-free energy economy because the U.S.’s climate prob-
lems cannot be resolved unless China also reduces carbon emissions).
153 See THE WHITE HOUSE, supra note 2, at 11 (promoting the idea that the
United States must have sustainable international cooperation, similar to post-
WWII, to deal with global issues like climate change).
154 See, e.g., id. at 30 (claiming that the country that leads the path to a clean
energy economy will have a “substantial economic and security advantage”
and further claiming that the United States is spending heavily on research and
155 Id. at 5.
156 See Stephen Stromberg, What Sank the Senate’s Climate Bill, WASH.
POST (July 29, 2010), http://www.washingtonpost.com/wp-dyn/content/arti-
cle/2010/07/28/AR2010072804527.html?hpid=opinionsbox1 (explaining how
the U.S. Congress failed to pass legislation to address carbon emissions and
begin dealing with climate change during the summer of 2010, while Wash-
ington, D.C. itself was experiencing record temperatures and a severe summer
storm that knocked out power for days in the greater capitol region).
157 THE WHITE HOUSE, supra note 2, at 11 (advancing the idea that the United
States is fully engaged and leading the way to solutions on climate change, and
other international challenges, and indicating that the United States intends to
support enforcement of international law in combating these challenges).
158 See generally id. at 5, 11, 13, 47 (claiming the United States is a leader heavily
invested in clean technology and committed to diplomacy to engage others in com-
bating climate change; further, promising CO2 cuts of eighty percent by 2050 and
seventeen percent by 2020, but only if Congress implements legislation to do so).
159 See 50 U.S.C. § 402(a) (including the Secretary of Energy in the council
membership along with the Secretaries of State and Defense, and permitting
Presidential appointment, with the advice and consent of the Senate, of Sec-
retaries and Under Secretaries of other executive and military departments,
16 Grant et al., supra note 11 (“It’s been through other revisions, so this should
17 UNHCR, supra note 9, at 9.
18 NORMAN MYERS & JENNIFER KANT, CLIMATE INST., ENVIRONMENTAL EXODUS:
AN EMERGENCY CRISIS IN THE GLOBAL ARENA 151-53 (1995), http://www.climate.
19 UNHCR, supra note 9, at 9.
20 Different theories for a proposed framework exist. One has proposed mod-
eling it on the Convention Against Torture. See Zartner, supra note 12, at 21
(“By following the structure of the Convention Against Torture, a new Conven-
tion could be drafted addressing the speciﬁc issue of environmentally displaced
persons . . . focus[ed] not only on protecting those individuals . . . but [would
also] require speciﬁc obligations from State parties to prevent the root causes
from occurring.”). Others have focused on the connections between ecological
integrity and human rights. See WESTRA, supra note 12, at 182 (“[T]he issues
of ecological refugees are primarily, though not exclusively, ecological issues
– that is, unless the interface between human rights and ecological integrity is
accepted, it will not be possible to design instruments that will truly address the
problem, or even use existing instruments to the best advantage of present and
21 Biermann & Boas, supra note 11 (stating ﬁve principles under which an
agreement would operate: 1) the objective of planned and voluntary resettle-
ment and reintegration; 2) treatment and classiﬁcation as permanent immi-
grants; 3) tailored to the needs of entire groups, not individuals; 4) targeted less
toward the protection of persons outside their states than toward the support of
domestic agencies to protect people within their territories; and 5) that protec-
tion is a global problem and a global responsibility).
22 VIKRAM ODEDRA KOLMANNSKOG, NORWEGIAN REFUGEE COUNCIL, FUTURE
FLOODS OF REFUGEES 31 (2008), http://www.nrc.no/arch/_img/9268480.pdf. The
NRC is an independent, humanitarian non-governmental organization, which
provides assistance, protection, and durable solutions to refugees and internally
displaced persons worldwide.
23 Michel Prieur, Projet de Convention Relative au Statut International des
Déplacés de l’Environnement, 4 REVUE EUROPÉENNE DE DROIT DE L’ENVIRONNE-
MENT 381 (2008) (author’s translation).
24 Id. pmbl. ¶ 2.
25 Id. art. 11.
26 Id. pmbl. ¶ 15.
27 Id. art. 7(2).
28 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW: STATES § 201 (1987);
Montevideo Convention on the Rights and Duties of States, art. 1, Dec. 26,
1933, 165 L.N.T.S. 19 [hereinafter Montevideo Convention].
29 Island of Palmas (U.S./Neth.) 2 R.I.A.A 831, 838 (Perm. Ct. Arb. 1928)
(“[S]overeignty in relation to a portion of the surface of the globe is the legal
condition necessary for the inclusion of such portion in the territory of any
particular State . . . Sovereignty in the relations between States signiﬁes inde-
pendence. Independence in regard to a portion of the globe is the right to exist
therein, to the exclusion of another State, the functions of a State.”).
30 Organization of American States, American Convention on Human Rights,
art. 20, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123; see also Pro-
posed Amendments to the Naturalization Provisions of the Constitution of
Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No.4 (Jan.
31 For example, problems would arise as to the rights of those already on the
land. Would they be resettled themselves? Who would pay? Would they be
offered Kiribati citizenship? What happens if they refuse to move?
32 Laurie Goering, Kiribati Ofﬁcials Plan for ‘Practical and Rational’ Exodus
From Atolls, THOMAS REUTERS FOUND. ALERTNET (Dec. 9, 2009), http://www.
ENDNOTES: CLIMATE CHANGE AND SMALL ISLAND STATES: ADRIFT IN A RAISING SEA OF LEGAL UNCERTAINTY
continued from page 57
SUSTAINABLE DEVELOPMENT LAW & POLICY95
33 Id. (“We are proud people. We would like to relocate on merit and with dignity.”).
34 Id. (“The hope, [Kiribati’s Foreign Minister] said, is that the families of
immigrants could eventually qualify for immigration as well.”).
35 Although this raises a number of issues as to whether such an island would
be considered an “artiﬁcial island” in the eyes of the UN Convention on the
Law of the Seas and what that would mean in terms of sovereignty. See Fran-
cesca Galea, Artiﬁcial Islands In The Law of the Sea (May 2009) (unpublished
Doctor of Law dissertation, University of Malta), http://seasteading.org/ﬁles/
36 A “permanent population” is also a required element of a state. See RESTATE-
MENT (THIRD) OF FOREIGN RELATIONS LAW: STATES, supra note 28; Montevideo
Convention, supra note 28. Can a permanent population be one that is scattered
worldwide? How many people need be on this built up island to continue the
legal existence of a state?
37 For example, how would the government be administered in such a situa-
tion? See CLEO PASKAL, GLOBAL WARRING: HOW ENVIRONMENTAL, ECONOMIC, AND
POLITICAL CRISES WILL REDRAW THE WORLD MAP 225 (2010) (suggesting such
a government could be run like a corporation managing the national resources
for the citizens in exile who would act like stock holders, or alternatively, like
the administrative systems set up to manage the land claim settlements of North
American First Nations in Canada).
38 Id. at 235.
39 Id. at 235-36.
41 The ﬁrst steps have been taken with the proposed Limoges Convention, see
Prieur, supra note 23. This proposal outlines a starting point for the conversa-
tion on rights of those displaced and the obligations on the international com-
2 The UN Human Rights Council’s Special Rapporteur on adequate housing
expressed that climate change would lead to advanced desert frontiers, failure
of pastoral farming systems, and land degradation which would in turn lead
to increased migration to and pressure on urban centers. See, e.g., Summary of
the Human Rights Council Panel Discussion on the Relationship between Cli-
mate Change and Human Rights, U.N. HIGH COMMISSIONER FOR HUMAN RIGHTS
(OHCHR), ¶ 4 (June 15, 2009) [hereinafter OHCHR Panel Discussion], http://
doc; see generally U.N. High Comm’r for Human Rights, Report of the Ofﬁce
of the United Nations High Commissioner for Human Rights on the Relation-
ship Between Climate Change and Human Rights, U.N. Doc. A/HRC/10/61, ¶
72-77 (Jan. 15, 2009) [hereinafter OHCHR Report CC-HR], http://daccess-dds-
3 See John H. Knox, Linking Human Rights and Climate Change at the United
Nations, 33 HARV. ENVTL. L. REV. 477, 481, 494, 498 (2009).
4 For the purposes of this paper “climate change” refers to the social crisis of
anthropogenic effects on climatic temperature.
5 See, e.g., Margreet Wewerinke, Member, Human Rights and Climate
Change Working Group, Many Strong Voices: Climate Change, Food Security,
and Human Rights, Address to Side-event at the United Nations Framework
Convention on Climate Change, 16th Conference of the Parties, Cancun, Mex.
(Dec. 1, 2010).
6 See, e.g., Knox, supra note 3; see also OHCHR Panel Discussion, supra
note 2, ¶ 36 (stating that “The United States of America, while agreeing that
climate change had implications for the full enjoyment of human rights, did not
consider that there was a direct formal relationship between climate change and
human rights as a legal matter.”).
7 See generally OHCHR Report CC-HR, supra note 2, ¶ 72-77.
8 Id. ¶ 21.
9 LENNY BERNSTEIN ET AL., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE,
CLIMATE CHANGE 2007: SYNTHESIS REPORT: AN ASSESSMENT OF THE INTERGOVERN-
MENTAL PANEL ON CLIMATE CHANGE 55-62 (2007) (describing the adaptation and
mitigation options available at global and regional levels).
10 See RON BENIOFF ET AL., NAT’L RENEWABLE ENERGY LABORATORY (NREL),
STRENGTHENING CLEAN ENERGY TECHNOLOGY COOPERATION UNDER THE UNFCCC:
STEPS TOWARD IMPLEMENTATION (2010), www.nrel.gov/docs/fy10osti/48596.pdf.
11 See SHANE TOMLINSON ET AL., E3G/CHATHAM HOUSE, INNOVATION AND TECH-
NOLOGY TRANSFER: FRAMEWORK FOR GLOBAL CLIMATE DEAL 22 (2008), http://
12 CTR. FOR INT’L ENVTL. LAW, HUMAN RIGHTS AND CLIMATE CHANGE: PRACTI-
CAL STEPS FOR IMPLEMENTATION 6 (2009), http://www.ciel.org/Publications/
13 See generally BERNSTEIN ET AL., supra note 9.
14 See generally id.
15 See generally id.
16 See U.N. Framework Convention on Climate Change, May 9, 1992, 1771
U.N.T.S. 107 [hereinafter UNFCCC], http://unfccc.int/resource/docs/convkp/
17 Id. art. 1(2).
18 See, e.g., BERNSTEIN ET AL., supra note 9.
19 The reports of the IPCC form the basis of reports from the UN Ofﬁce of the
High Commissioner for Human Rights.
20 BERNSTEIN ET AL., supra note 9; Organization Page, INTERGOVERNMENTAL
PANEL ON CLIMATE CHANGE, http://www.ipcc.ch/organization/organization.shtml
(last visited Feb. 15, 2011).
21 BERNSTEIN ET AL., supra note 9.
22 Id. at 72.
25 Id. at 53.
27 OHCHR Report CC-HR, supra note 2 (noting that mitigation strategies
are often complemented by adaptation programs that strive to “strengthen the
capacity of societies and ecosystems to cope with and adapt to climate change
risks and impacts”). While adaptation is an important component of any com-
prehensive response to the climate change crisis, this paper focuses on the miti-
gation efforts that aim to restructure global energy production.
28 Kyoto Protocol to the United Nations Framework Convention on Climate
Change, Dec. 10, 1997, 37 I.L.M. 22 [hereinafter Kyoto Protocol], http://
29 See FREDERICK M. ABBOTT, INT’L CTR. FOR TRADE AND SUSTAINABLE DEV.,
INNOVATION AND TECHNOLOGY TRANSFER TO ADDRESS CLIMATE CHANGE: LESSONS
FROM THE GLOBAL DEBATE ON INTELLECTUAL PROPERTY AND PUBLIC HEALTH 1
to-address-climate-change.pdf (noting the international acknowledgement that
greenhouse gasses from combustion energy generation substantially contrib-
ute to causing climate change and thus that one of the primary objectives to
addressing climate change is to develop and implement alternative energy-gen-
eration systems including solar, wind, biomass, nuclear, geothermal, and tidal
30 See TOMLINSON ET AL., supra note 11.
31 See generally JOHN H. BARTON ET AL., INT’L CTR. FOR TRADE AND SUSTAIN-
ABLE DEV., INTELLECTUAL PROPERTY AND ACCESS TO CLEAN ENERGY TECHNOLOGIES
IN DEVELOPING COUNTRIES: AN ANALYSIS OF SOLAR PHOTOVOLTAIC, BIOFUEL AND
WIND TECHNOLOGIES (2007), http://ictsd.org/downloads/2008/11/intellectual-
32 Id. at 7 (referencing the suggestion of others that ﬂexibility is needed in the
context of IP in clean energy technology); TOMLINSON ET AL., supra note 11, at 83.
33 TOMLINSON ET AL., supra note 11, at 83.
34 Id. at 83-85 (discussing global competitiveness debates in the climate context).
36 BARTON ET AL., supra note 31.
37 Id. at 9, 12, 15 (explaining the background and development of the technologies).
38 Id. at 20 (highlighting the risk that broad patents could hinder development
of more efﬁcient or less expensive technologies).
39 Id. at 9.
40 See Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human
Rights Framework, 40 U.C. DAVIS L. REV. 1039, 1045 (2007), http://lawreview.
law.ucdavis.edu/issues/Vol40/Issue3/DavisVol40No3_Yu.pdf; Krishna Ravi
Srinivas, Climate Change, Technology Transfer and Intellectual Property Rights
1 (Res. & Info. Sys. for Developing Countries, Discussion Paper No. 153, 2009),
pdf (suggesting that IPR holders are unlikely to make the necessary technology
transfers on a timeline that will actually beneﬁt humanity).
ENDNOTES: CLIMATE CHANGE, INTELLECTUAL PROPERTY, AND THE SCOPE OF HUMAN RIGHTS OBLIGATIONS
continued from page 63
WINTER 2011 96
41 See, e.g., Petition to the Inter-American Commission on Human Rights
Seeking Relief from Violations Resulting from Global Warming Caused by
Acts and Omissions of the United States, Dec. 7, 2005, http://s3.amazonaws.
com/isuma.attachments/ICC_Petition_7Dec05.pdf (providing the only petition
to date ﬁled in a regional human rights court dealing with climate change-
related human rights violations).
42 See OHCHR Report CC-HR, supra note 2, ¶ 18.
43 See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A (III),
U.N. Doc. A/810 (1948) [hereinafter UDHR]; International Covenant on
Economic, Social and Cultural Rights, 993 U.N.T.S. 3 (1966) [hereinafter
ICESCR]; International Covenant on Civil and Political Rights, 999 U.N.T.S.
171 (1976) [hereinafter ICCPR].
44 ICCPR, supra note 43.
45 ICESCR, supra note 43.
46 See Stockholm Declaration on the Human Environment of the United
Nations Conference on the Human Environment, U.N. Doc. A/Conf 48/14/
Rev.1, 11 I.L.M. 1416 (June 16, 1972) [hereinafter the Stockholm Declara-
tion] (guaranteeing a right of environmental quality, but in a non-binding
forum); African [Banjul] Charter on Human and Peoples’ Rights, adopted June
27, 1981, 21 I.L.M. 58 (entered into force Oct. 21, 1986), arts. 22, 24, http://
Protocols?Banjul%20Charter.pdf (indicating that binding regional human
rights conventions and their protocols may provide bases for asserting climate
change-related human rights violations in the context of environmental qual-
ity rights, stating that “All peoples shall have the right to a general satisfac-
tory environment favorable to their development”); see also Organization of
American States, Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights, art. 11, opened for
signature Nov. 17, 1988, O.A.S.T.S. No. 69 (entered into force Nov. 16, 1999)
[hereinafter San Salvador Protocol] (stating “Everyone shall have the right to
live in a healthy environment . . . .”).
47 See John H. Knox, Diagonal Environmental Rights, in SIGRUN SKOGLY &
MARK GIBNEY, UNIVERSAL HUMAN RIGHTS AND EXTRATERRITORIAL OBLIGATIONS 82
(Mark Gibney et al. eds., 2010) (noting that “[h]uman rights law operates pri-
marily along a vertical axis, setting out individuals’ rights against their govern-
ments and the corresponding duties owed by the governments, but it may also
be diagonal, giving rise to duties on the part of states that extend beyond their
48 OHCHR Report CC-HR, supra note 2, at 5.
51 Id. at 8-10.
52 Id. at 8-18.
53 Id. at 18-22.
54 Id. at 24, ¶ 72.
55 Id. (citing CESCR general comments No. 12 (1999), No. 13 (1999), No. 14
(2000), and No. 15 (2002) on adequate food, education, highest attainable stan-
dard of health, and water, respectively).
56 ICESCR, supra note 43, art 2(1).
57 ICCPR, supra note 43, art. 2(1).
58 U.N. Committee on Economic, Social, and Cultural Rights, The Right
to the Highest Attainable Standard of Health: General Comment No. 14, ¶
45, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000) [hereinafter CESCR No. 14],
59 See BARTON ET AL., supra note 31, at 2-5.
60 See id.
61 TOMLINSON ET AL., supra note 11, at 88.
62 See David Ockwell et al., Enhancing Developing Country Access to Eco-
Innovation: The Case for Technology Transfer and Climate Change in a
Post-2012 Policy Framework 21 (OECD Environment Working Papers No.
12, 2010), http://www.oecd-ilibrary.org/environment/enhancing-developing-
country-access-to-eco-innovation_5kmfplm8xxf5-en (reporting a situation in
India where local ﬁrms’ efforts to develop commercial hybrid vehicle technol-
ogy were stalled by the process of negotiating the IP protections on existing
technology with an international industry leader).
63 BARTON ET AL., supra note 31, at 4.
64 TOMLINSON ET AL., supra note 11, at 88-89.
65 BENIOFF ET AL., supra note 10, at 1, 10.
66 See id.
67 Id. at 10.
68 BARTON ET AL., supra note 31, at 3.
71 See ABBOTT, supra note 29, at V.
72 World Trade Organization, Ministerial Declaration of 14 November 2001,
WT/MIN(01)/DEC/2, 41 I.L.M. 746, ¶ 6 (2002) [hereinafter Doha Declaration].
73 CESCR No. 14, supra note 58, at 9-13.
74 See generally Doha Declaration, supra note 72.
76 See generally id.
77 See generally, e.g., United Nations Framework Convention on Climate
Change, Subsidiary Body for Scientiﬁc and Technological Advice, Thirty-third
Session, Nov. 4-Dec. 5, 2010, Report on Options to Facilitate Collaborative
Technology Research and Development – Note by the Chair of the Expert
Group on Technology Transfer, U.N. Doc. FCCC/SBSTA/2010/INF.11 (Nov.
24, 2010) [hereinafter UNFCCC Note by the Chair], http://unfccc.int/resource/
78 See generally United Nations Framework Convention on Climate Change,
15th Conference of the Parties, Copenhagen, Den., Dec. 7-19, 2009, Copenha-
gen Accord, U.N. Doc. FCCC/CP/2009/11/Add.1 (Mar. 30, 2010) [hereinafter
COP 15], http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf; United
Nations Framework Convention on Climate Change, Report of the Subsidiary
Body for Implementation on its Thirty-second Session, held in Bonn from
21 May to 9 June 2010, U.N. Doc. FCCC/SBI/2010/10 (Aug. 25, 2010),
79 See Wewerinke, supra note 5; see also OHCHR Panel Discussion, supra
80 See generally COP 15, supra note 78; SBI 32, supra note 78.
81 See id.
82 “Regime shifting,” as applied by Laurence Helfer to the context of intellec-
tual property, describes a type of forum shopping practiced by states and NGOs
whose political interests receive limited traction or are silenced in the intellec-
tual property regime. These actors are increasingly turning to non-IP regimes,
with different substantive, institutional, and relational dimensions, in search
of new (soft) law-making that will serve to maximize their interests. Laurence
Helfer, Regime Shifting: The TRIPS Agreement and New Dynamics of Interna-
tional Intellectual Property Making, 29 YALE J. INT’L L. 1, 8-14 (2004).
83 The “ﬂexibilities” within the TRIPS Agreement are exceptional limitations
that are intended to accommodate some extreme human rights conditions with
only limited easements in the IP protection (compulsory licensing). The excep-
tional nature of these provisions means that they “have more often than not
been construed against the needs of users.” Margaret Chon, Intellectual Prop-
erty and the Development Divide, 27 CARDOZO L. REV. 2813, 2880 (2006).
84 Most analyses of the problem of access to clean energy technologies and IP are
structured around various IP instruments. See, e.g., ABBOTT, supra note 29, at 4-7.
85 U.N. Committee on Economic, Social, and Cultural Rights, The Right of
Everyone to Beneﬁt From the Protection of the Moral and Material Interests
Resulting From Any Scientiﬁc, Literary or Artistic Production of Which He
or She is the Author (Article 15, Paragraph 1 (c), of The Covenant): General
Comment No. 17, U.N. Doc. E/C.12/GC/17 (Jan. 12, 2006) [hereinafter CESCR
No. 17], http://www.unhcr.org/refworld/pdﬁd/441543594.pdf.
86 U.N. Committee on Economic, Social, and Cultural Rights, The Nature of
States Parties’ Obligations (Art. 2, Para. 1, of the Covenant): General Com-
ment No. 3, U.N. Doc. E/1991/23 (Dec. 14, 1990) [hereinafter CESCR No. 3],
87 See id.
88 See id.
89 See id.; CESCR No. 17, supra note 85; CESCR No. 14, supra note 58.
90 See OCKWELL ET AL., supra note 62, at 7 (concluding that “[i]ndigenous eco-
innovation capabilities are essential to facilitating both the diffusion of existing
eco-innovations within developing countries and sustainable economic develop-
ment based on the adoption, adaptation and development of environmentally sound
technologies that ﬁt within the bespoke conditions faced by developing countries”).
91 Id. at 22 (relaying how Indian ﬁrms producing light-emitting diodes
(“LEDs”) expressed that they would not be able to begin production of LEDs
simply with access to technology, but rather needed knowledge and experience
of the manufacturing process).
92 Chon, supra note 83, at 2880-83.
93 Id. at 2884-85.
94 See, e.g., UNFCCC Note by the Chair, supra note 77.
95 Yu, supra note 40, at 1045.
96 United Nations Commission on Human Rights, Sub-Commission on the
Promotion and Protection of Human Rights, Fifty-second Session, The Impact
SUSTAINABLE DEVELOPMENT LAW & POLICY97
of the Agreement on Trade-Related Aspects of Intellectual Property Rights on
Human Rights, U.N. Doc. E/CN.4/Sub.2/2001/13 (June 27, 2001) [hereinafter
UNCHR Trade-Related Aspects], http://www.unhchr.ch/Huridocda/Huridoca.
97 See id. ¶ 14.
101 See Helfer, supra note 82; see also Yu, supra note 40, at 1105.
102 See CESCR No. 3, supra note 86; CESCR No. 17, supra note 85; CESCR
No. 14, supra note 58.
103 See id.
104 Yu, supra note 40. Helfer, supra note 82.
106 See id.
107 CESCR No. 17, supra note 85, ¶ 35.
108 Helfer, supra note 82, at 1018.
109 Yu, supra note 40, at 1105-06.
110 See generally id. at 1095.
111 See generally id. at 1096.
112 See id.
113 See id. at 1094-97.
114 See generally id.
115 See generally id.
116 See id.
117 See id.
118 See id.
119 See id. at 1096.
120 UNCHR Trade-Related Aspects, supra note 96, ¶ 22.
121 See generally BRITT CHILDS STALEY ET AL., WORLD RESOURCES INST., FROM
POSITIONS TO AGREEMENT: TECHNOLOGY AND FINANCE AT THE UNFCCC (2008),
122 TOMLINSON ET AL., supra note 11, at 87.
16 See HUNTER ET AL., supra note 12, at 681.
17 Alan Manne & Richard Richels, US Rejection of the Kyoto Protocol: The
Impact on Compliance Costs and CO2 Emissions, 32 ENERGY POL’Y 447 (2004).
18 Jennifer Morgan, Reﬂections on the Cancún Agreements, WORLD RESOURCES
INST. (Dec. 14, 2010), http://www.wri.org/stories/2010/12/reﬂections-cancun-
19 Marianne Lavelle, Toward a Stalemate in Copenhagen, CTR. FOR PUB. INTEG-
RITY (Nov. 5, 2009), http://www.publicintegrity.org/investigations/global_cli-
20 The Montreal Protocol on Substances that Deplete the Ozone Layer arts.
2H(5), 5, Sept. 16, 1987, 1522 U.N.T.S. 3; Exemption Information, UNEP
OZONE SECRETARIAT, http://ozone.unep.org/Exemption_Information/ (last
21 Elizabeth Ladt & George David Banks, Reﬂections on COP-16: Time to
Move Past the United Nations Framework Convention on Climate Change,
ENERGY EFFICIEN CY & C LIMATE CHANGE LAW (DEC. 14, 2010), http://www.efﬁ-
22 INT’L MONETARY FUND, WORLD ECONOMIC OUTLOOK: RECOVERY, RISK, AND
REBALANCING 62, 171 (2010), http://www.imf.org/external/pubs/ft/weo/2010/02/
23 SSNC, supra note 9, at 2.
24 Id. at 14.
25 Singapore: Data, THE WORLD BANK, http://data.worldbank.org/country/sin-
gapore (last visited Feb. 4, 2011).
26 AMB Country Risk Report, A.M. BEST 2-3 (2010), http://www3.ambest.com/
27 See UNFCCC,