Hopes Pinned on Copenhagen Talks Even in Absence of Domestic Climate Change Legislation

Hopes Pinned on Copenhagen Talks Even in Absence of Domestic Climate Change Legislation

September 23, 2009 15:56
By Grace Kurdian
New York City
If you predict (as many have) that it is unlikely that Congress will pass domestic climate legislation this year and that, therefore, your industry is spared operating in a carbon-constrained business environment, think again.  Things are not always as they seem; we need to take a closer look at the international efforts toward climate change commitments in order to better gauge the regulatory scheme that may be implemented in the United States in the near future, even if that means looking beyond the remaining four months of this year. 
With so many competing domestic issues, including health care reform and the continued effects of the recession, some speculate that the fervor that surrounded the House's narrow approval of the Waxman-Markey legislation earlier this summer has faded as climate change legislation faces more rigorous challenges in the Senate.  In turn, many speculate that if the United States cannot pass domestic climate change legislation before the December Copenhagen meeting (of global leaders to negotiate a replacement to the expiring Kyoto Protocol), the U.S. may lose its credibility at the global climate talks scheduled to occur in Copenhagen in December.  Congress's failure to pass federal climate legislation before December is not necessarily a harbinger of whether we'll be subject to climate constraints from the international arena. 
"My experience in life is that things are seldom as they seem," commented Dr. Yvo de Boer in addressing a group of lawyers at the Association of the Bar of the City of New York Wednesday morning.  Dr. de Boer, the Executive Secretary of the UN Framework Convention on Climate Change (UNFCCC), spoke to a group of attorneys on the status of international negotiations concerning climate change, the critical political and legal issues that must be addressed in order to have movement at Copenhagen, and the critical importance of inclusiveness, trust, and cooperation among industrialized and developing nations in implementing any global climate change targets or protocols.
As described by Dr. de Boer, the Summit on Climate Change, held in New York on September 22, 2009, which included the participation of over 100 Heads of State and Government including President Obama, ended with a "clarion call for a strong climate change deal to be sealed in Copenhagen."  There are, of course, critical issues that must be addressed in order for the Copenhagen talks to end successfully.  Dr. de Boer identified four broad-based components as essential to successful global climate change negotiations at Copenhagen: (1) industrialized countries must establish ambitious emission reduction targets; (2) developing countries must establish national emission mitigation actions; (3) industrialized countries need to provide strong financial and technological support to developing countries; and (4) governments' needs must be equitably weighed so that the needs of developing countries are not ignored by industrialized countries.
As to establishing the ambitious reduction targets, while it is critical that the United States make a serious climate change commitment, de Boer now says that such meaningful participation does not necessarily mean that domestic climate change legislation have been passed in the United States prior to the Copenhagen talks.  The national emission mitigation measures to be established in developing countries hinge, however, on their demand for strong financial and technological support (for example, advanced clean technology or carbon capture and sequestration technology made available to China, primarily, at a lower cost and the establishment of public funding mechanisms to support mitigation efforts in developing countries).  As with all of the broad-based components cited, reference to the equitable treatment of developing countries needs to be further developed to understand whether that may include a polluter tax or some other payment from more wealthy, industrialized countries to the developing countries who produce the materials we consume. 
How can the United States participate meaningfully in the Copenhagen talks without having passed domestic climate change legislation?  If there is support in the United States and among other nations for the four underlying principals enunciated by Dr. de Boer, there is no need for domestic climate legislation to be passed as a precursor for a successful Copenhagen agreement.  He reminded that not a single nation had its climate policy actually enacted before the Kyoto Protocol; each prepared its implementing legislation after the international commitments were made. 
Analogizing this to a point closer to home which we have previously covered in our climatelawyers blog, the Regional Greenhouse Gas Initiative ("RGGI"), in which 10 states in the northeast and mid-atlantic region currently participate, was similarly based on a Model Rule that each of the participating states later used as the framework for enacting the necessary local legislation or regulations to allow each signatory state to participate in RGGI. 
So, we look to the next steps - the remainder of New York Climate week and the G-20 summit to occur in Pittsburgh at the end of this week.  To what extent will discussions of how to achieve a sustainable recovery from the global financial and economic crisis include a focus on (or, indeed, any discussion of) climate change?  Sometimes things are not as they seem.  Even if the domestic focus of late has been on other issues, including health care reform, the economy, and Afghanistan, rather than climate change, if there is some consensus on the broad principals enunciated by Dr. de Boer, even if the United States does not have final climate legislation passed before the end of the year, it does not mean that the nation is far from a climate constrained business environment. 
As with political risk or economic analysis, legal analysis does not operate in a vacuum.  Whether you are focused on making widgets or consuming widgets made in China or elsewhere as part of your business operations, there will somehow be an internalization of external costs and an allocation of carbon emissions that will, inevitably, affect your bottom line.  While ensuring that you are in compliance with state and regional requirements related to carbon emissions, it is worth taking a broader look at the international climate change activity and policy (including at Copenhagen, where the United States is expected to actively participate) because it will fundamentally affect the domestic climate legislation ultimately passed in the United States.


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