Guilty by voluntary association

Cross-posted from RFF’s incredibly awesome climate policy blog Weathervane.

The first deliverable in the Copenhagen Accord was a pledge by all nations to submit their planned mitigation actions or targets to the United Nations Framework Convention on Climate Change (UNFCCC) secretariat by January 31, 2010. Since nations “took note” of the Accord instead of adopting it, in the weeks after Copenhagen there was uncertainty about whether some countries would ignore this quasi-commitment. Even UNFCCC head honcho Yvo de Boer was concerned, calling the deadline “soft” while imploring nations to “associate” themselves with the Accord. “Association” was likely understood to mean acknowledgement of some formal status for the Accord within the UNFCCC, giving the secretariat greater authority to convene official negotiating sessions around the document.

In any case, from the perspective of developed nations the central task for 2010 was to merge any new discussions around the Copenhagen Accord with the Kyoto Protocol (KP) and long-term cooperative action (LCA) negotiating tracks that were created by the Bali Action Plan in 2007 and intended to be the fundamental basis for negotiating an agreement in Copenhagen. While countries made progress on these tracks in Copenhagen—including things like forestry and adaptation—when they “took note” of the Accord on the last night of COP-15 they essentially left all that progress on the table to be taken up in 2010. Many developing countries wanted, and still want, to just pick up where they left off on these texts and pretend the Accord never happened.

If all key countries “associated” themselves with the Accord, one theory was that this would streamline the process of merging the Accord with KP and LCA by giving it at least some level of official status. For many developed countries, it was hoped that this would lead to the dissolution of these tracks and the use of the Accord as the new basis for negotiating a comprehensive global agreement. The fundamental developed-developing distinction of Kyoto would fall by the wayside, and the new starting point could eventually lead to the only kind of agreement the United States might be able to ratify. This is why some international policy wonks in the United States were so excited about Copenhagen.

However, one assumption implicit in this was that submission of targets or actions would necessarily go hand-in-hand with association, and vice versa. If a country wanted to “associate” itself with the Accord, it would entail accepting the Accord’s obligations, including the submission of a target. If a country submitted a target that would also imply acceptance of the Accord’s obligations and indicate that a country wished to be “associated” with the Accord going forward. In turn, it was thought that a country could not “associate” itself with the Accord without acknowledging it had some kind of official status.

As expected, by Monday nearly all developed countries, including the United States, will have both submitted their target and expressed their willingness to be associated with the Accord. Many of these targets are on the lower end of what was conditionally proposed (Europe 20 percent instead of 30 percent below 1990 levels by 2020, Australia 5 percent below 2000 levels by 2020) and come with numerous strings attached (Japan 25 percent below 1990 levels by 2020 with a global agreement), but they are on the table and show a commitment both to the Accord’s obligations and using it as a primary focus of negotiations in 2010.

However, a recent joint statement from the BASIC countries (Brazil, China, India and South Africa) presents a more complicated situation, and reveals that the association-with-action-implies-acceptance-of-some-official-status assumption is highly suspect, if not outright false. It appears that these countries are willing to submit their actions, as pledged in the Accord, but do not view this submission as implying any “association”—at least in the sense likely envisioned by the UN secretariat and most developed countries. Even if China, India, Brazil and South Africa technically “associate”, they do not see this as creating any obligations under the UNFCCC (such as the submission of targets, which they claim to do voluntarily), and certainly not as giving the Accord legitimacy as a negotiating text. It seems that in their view, they made a political pledge in Copenhagen to submit their actions—which just happened to be included in the Accord—and they will do so in order to uphold that pledge, but they will not do so because it is an obligation created by the Accord.

While this does not mean the Accord is “dead”, it does have implications for the negotiating process in 2010. For starters, it would be a heck of a lot easier to negotiate a binding agreement in Cancun, at least one that would be preferable to the United States, if all countries formally “associated” themselves and understood that “association” to create legitimacy and obligations. The reality of the BASIC position makes Mexico’s already delicate task—massaging the two-track UNFCCC process and Copenhagen Accord process together in a way that satisfies 190+ countries—that much more difficult. As a positive sign, they appear to understand the difficulty of this task and be up to taking it on. It will require delicate diplomacy that escaped the Danes, but the fact that Mexico is a “developing” country and OECD member could give it the needed climate cred to make it happen.

Observing this dance will require tracking both any “friends of the Accord” processes that occur outside or on the sidelines of the UNFCCC (and seeing who shows up, what they say and how), and tracking how key elements of the Accord are discreetly worked into the two official tracks. If anything, it will be fascinating to watch.

Will Courts Set Climate Policy through Nuisance Suits?

Nathan Richardson was kind enough to not only share this with the world of Weathervane (BTW, you checked it out lately? It’s pretty boss) but also give me the go-ahead to repost it here. In case you’ve missed it, he’s written a slew of other posts about the intersection of the EPA, Congress and the Clean Air Act.  

A polluter emits something that hurts people in a community. These people get together and sue the polluter. Courts then side with the victims under the common-law tort of nuisance, and award damages (or an injunction shutting down the polluter). Before the era of modern environmental regulation, all pollution-related disputes were solved this way.

Regulation has made environmental nuisance suits much less common and less necessary, but they have not disappeared completely. The problems presented by climate change are broadly similar—polluters emit greenhouse gases (GHGs) that ultimately cause harm. In the absence of government regulation of GHGs, can nuisance suits be used to force polluters to reduce emissions or to compensate for adaptation costs?

Suits seeking answers to these questions exist and are making their way through courts now. Some of them have made headlines, such as that filed by Kivalina, Alaska—a town on a barrier island formerly protected by Arctic sea ice, but which now faces increasing erosion. The New York Times reported on the case in an article that also discusses some similar cases, including perhaps the most widely-reported, Connecticut v. AEP.  In that case a group of states and private conservationist landowners are suing power companies under a similar nuisance theory.

So are these cases going to end up with major judgments that effectively set policy? Is big tobacco going to be the model for redressing harms from climate change? If tobacco is the model, I wouldn’t get your hopes up. But it is likely that these lawsuits will end up playing a big role in the policy process.

Despite the relatively high-profile coverage of some of the cases, there is not much for advocates of GHG regulation to be excited about. No climate nuisance case (that I know of) has been successful. The biggest “victory” so far has been in Connecticut v. AEP. Still in that case, the Second Circuit simply reversed a lower court’s comprehensive dismissal of the plaintiffs’ claims.  The appellate court ruled that courts could decide the case in principle (it was not a “political question”) and that the states did have standing to sue over climate harms. This says almost nothing about the plaintiffs’ likelihood of success on the merits of the case. Causation and damages will be big hurdles for the states when the lower court reaches the merits.

It’s also possible that EPA action could preempt these suits. The Second Circuit ruled that the lack of EPA GHG regulation left the field open for nuisance suits, but strongly implied that any EPA regulation would preempt them. Connecticut was decided just before the EPA released its endangerment finding for mobile sources in December. It’s likely that any nuisance suit aimed at auto manufacturers would fail for preemption reasons now that the EPA has committed to regulating mobile-source GHGs. If the EPA, as many expect, moves to regulate stationary-source GHGs, then Connecticut itself would presumably be preempted also.

This link between EPA regulation and nuisance lawsuits, however, creates a lever through which those suits might still have a big effect on how climate policy gets made—as Jonathan Zasloff at UCLA has pointed out. As nuisance suits proceed, they will put increasing pressure on the EPA to regulate to preempt them since regulation is generally perceived as a superior approach (especially by the EPA itself, one expects). Both nuisance suits and EPA regulation put pressure on Congress to enact climate legislation.

Opponents of action on climate are effectively stuck playing whack-a-mole – if they succeed in blocking action in Congress and through the EPA (possibly by getting a Murkowski-style resolution passed), nuisance suits will proceed with unpredictable results. If they quietly let the EPA regulate, those suits go away, along with a lot of pressure on Congress. But Clean Air Act regulation is a bitter pill to swallow. The most likely long-term result seems to be congressional action—opponents can’t push for inaction forever with the twin threats of EPA regulation and nuisance suits.

In short, nuisance suits make business-as-usual on climate much less likely, even if they are not themselves very likely to succeed. This should be cause for some optimism about the long term if you are frustrated by the current inability of Congress to enact climate legislation.

Nathan Richardson is a Visiting Scholar at RFF.

Et tu Lindsey?

South Carolina Sen. Lindsey Graham—the R in the D/R/I Senate’s tripartisan climate bill sandwich known as Kerry, Graham and Lieberman—is declaring the death of cap and trade in this New York Times article:

“Realistically, the cap-and-trade bills in the House and the Senate are going nowhere,” said Senator Lindsey Graham, Republican of South Carolina, who is trying to fashion a bipartisan package of climate and energy measures. “They’re not business-friendly enough, and they don’t lead to meaningful energy independence.”

Mr. Graham said the public was demanding that any energy legislation from Washington focus on creating jobs, whether by drilling for offshore oil or building wind turbines.

“What is dead is some massive cap-and-trade system that regulates carbon in a fashion that drives up energy costs,” he said.

Not ready to let that be the last word, Sen. John Kerry told a clean energy forum cap and trade’s obituary is premature:

We have not scaled back our goals, they are the same,” Kerry said. “We have not recalibrated some lesser approach that is only energy or only this or that … We have to price carbon in order to get the marketplace moving properly.

According to the Reuters story, Graham is scheduled to speak later today at the same event. Talk about your all-time awkward greenroom chit-chat.

R.I.P Environmental Capital

I’m not so skilled at keeping up with the blogosphere over the weekend, so I missed the passing of one of the best enviro/econ blogs around. Environmental Capital has shuttered its doors, leaving a big hole in my Google Reader. I’m definitely going to miss the excellent and concise insight Keith Johnson and crew provided, like this bit from Keith’s last substantive post:

To take a single example: The price that American drivers pay at the pump, frightening as it is these days, does not reflect the cost of oil and gasoline. There are additional costs to the reliance on oil that simply don’t show up in the twirling numbers at the gas pump, whether they are the environmental costs of oil extraction, transport and combustion, or the cost of U.S. military engagement to protect oil supplies and keep vital sea lanes open.

For economists, all these hidden costs are called “externalities.” They’re as real as they are hard to spot, from the Fifth Fleet’s operating expenses to the pernicious health costs of a coal-fired electricity sector.

For policymakers, these externalities represent an opportunity as much as a headache. For all the worries that a bigger role for government in the energy business—from cap-and-trade schemes to solar-power subsidies—represents a retreat from free markets, that’s hardly the case. Energy markets aren’t “free” today, and the playing field is anything but level.

Not sure how I’m going to fill the informative-and-useful gap now. I could spend more time with the obviously-based-in-reality observations on Climate Depot. I could also bludgeon my head with a piece of rebar even morning for 20 minutes for similar effect.

Old McDonald hates climate legislation

The American farmer, long the backbone of our upstart and formerly agrarian society, is one of the proud archetypes we Yanks like to incorporate into our national identity (much like the cowboy and the Hasselhoff). The strong farmer, reserved in demeanor and stout in constitution, laboring dutifully for the good of the nation. It’s a powerful image. Know what else about farmers is powerful? Their lobbyists. How powerful you ask? Well, powerful enough that after agriculture and land use were excluded from regulation under Waxman-Markey, they got one of their favorite Congressmen (Collin Peterson, D-MN) to throw a tantrum and threaten to derail the whole bill unless he got what. In the name of the mighty farmer.

So now that farmers got what they want, that’s one less obstacle for climate legislation working through the Senate, right?

Sigh…
The American Farm Bureau Federation, the most powerful group in this most powerful lobby, has come out firmly against any climate bill. According to Reuters:

In a speech opening the four-day AFBF convention, Stallman said American farmers and ranchers “must aggressively respond to extremists” and “misguided, activist-driven regulation … The days of their elitist power grabs are over.”

…

Vast amounts of farmland could become carbon-capturing woodlands under cap-and-trade, “eliminating about 130,000 farms and ranches,” said Stallman. One federal analysis says 8 percent of crop and pasture land could be turned into trees by 2050 because trees would be more profitable than crops.

On top of that, Rep. Peterson is having second thoughts about all his hard work being difficult last Spring:

Blue Dog Democrat Collin Peterson, who played a major role securing rural lawmakers’ support for cap-and-trade climate legislation this summer, now says he would vote “no” if a similar bill returned to the House for final passage.

The Agriculture Committee chairman said he was “stuck voting” for the bill (which awaits Senate action) in June because House Speaker Nancy Pelosi granted his requests for broad agriculture concessions, but he won’t support it again if it remains unchanged.

Man, I totally hate it when I get ‘stuck’ soing something I agreed to do in exactly for just about every concession I asked for. Poor Collin Peterson, 2009 was a rough year.

As for the Farm Bureau Federation and their concern that a swarm of carbon-hungry forests are going to swoop in and conquer the Grain Belt, they might yet be saved from the onslaught of immobile carbon zombie hordes, with their sinister foliage and penetrable cellulosic skin. A new study out of the University of Gothenburg in Sweden finds that paying people to preserve forests may not be sufficient to keep them standing. According to researchers Martin Persson and Christian Azar, a price on carbon from a cap-and-trade regime will drive demand for carbon-neutral fuel sources, such as palm-oil. This will compete directly with REDD schemes designed to pay for the preservation of tropical forests. In almost all the scenarios modeled in the study, clearing forests and planting palm oil is more profitable, meaning additional incentives aside from REDD program are necessary to keep forests standing.

While the study focuses on tropical forests and palm oil, and thus is not directly applicable to the Grain Belt per se, it does suggests that the competition for land between biofuels and forest carbon offset is not  so cut and dry. Demand for biofuels from US sources has the potential to overwhelm demand for offsets, especially if cheaper international options are available. Farmers may yet be saved from being taken over by ravenous groves of fast growing trees. Thank God, because they need all the help they can get.

Making Lemonade out of Climate Lemons

ClimateWire (via NYT) has a sneak peek of a forthcoming MoMA exhibit created by architects attempting to replace New York City’s infrastructure with one that could withstand sea level rises of more than two feet.

The architects aren’t asked to paint sea level rise as a positive thing, but instead to propose ways for the city to make the city more resilient and to make the best out of a bad situation. The teams acknowledge that if predictions of a rise of 2 feet or more over the next several decades prove correct, large chunks of the city that are now populated will have to be permanently abandoned to the ocean. But allowing the sea to once again creep into city space doesn’t necessarily have to be all negative, they say.

So what does this hypothetical post-climate-change NYC Look like?

Well, maybe not exactly. (But who isn’t looking forward to drinking their own urine?)

Ideas on display in “Rising Currents: Projects for New York’s Waterfront” would make certain parts of lower Manhattan Venice-like, allowing water in during high tide and convert Battery Park into wetlands. And, apparently, rising sea levels might help revive the long-extinct oyster industry. I find it difficult to believe the edibility of the tiny, slimy boogers on the half-shell delicacies could be improved by NYC waters, but stranger things have happened.

Post-holiday Post-mortem

If I may, I’d like to start with a holiday-appropriate metaphor. Let’s pretend that you are convinced you’re getting a pony for Christmas. You’re absolutely sure of it; the momentum built up from previous years’ Christmas presents is too strong for this year to be anything but a pony. As the year creeps closer to Christmas morning, you see warning signs that suggest you might not get your pony this year: Mom and Dad are struggling to make ends meet, the pony market is down overall, and you live in a high-rise apartment. Regardless, you keep thinking that pony is coming because it has to. This is the year of the pony.

When Christmas comes, you rush downstairs to find…no pony. All you got was a pair of socks. They’re nice socks. Thick and warm, they’re made of Smartwool, so they’ll keep your feet dry. They will be great socks to wear the day when you eventually get a pony. Your friend, who wasn’t expecting to get anything for Christmas got the same socks and is actually pretty stoked, considering he didn’t expect to get anything. It doesn’t matter to you, though, because you had your heart set on a pony and all you got was a stupid pair of socks. Worst December ever.

————-

When people ask me how Copenhagen turned out, I tell them it depends on what you were expecting going into it. For some, expectations for the conference were huge, a-pony-for-Christmas huge. So, it shouldn’t be a surprise that many of them view the results as a dismal failure. Negotiations on text for what would have become the Copenhagen Agreement or Protocol (or whatever official sounding name for a document you prefer) did not progress well enough over the course of the year to produce a great outcome at COP15.

The U.N. tried to lower expectations in the preceding months, and after meetings in Bangkok and Barcelona, it was pretty clear Copenhagen was not going to deliver on what many were hoping for, namely legally binding emissions. The Copenhagen Accord, the result of two weeks’ worth of brain-numbing negotiations and some impressive ad hoc diplomacy by President Obama, to turned out to be something like (to stick with the metaphor) a comfortable pair of warm socks: underwhelming and perhaps disappointing to a lot of people, but still useful, probably more helpful than we realize, and something on which we can stand on the future.

What actually came out the meeting? The Copenhagen Accord, a three-page document that reiterates the International community’s commitment to reduce emissions enough to prevent a 2 degree Celsius rise in global temperatures. It asks developed and developing countries to commit to mitigation actions under the basic structure of the Kyoto Protocol (and submit them by January 31), and establishes a framework for monitoring, reporting, and verifying nations’ emissions reductions. Along with recognizing the importance of reducing emissions for deforestation and forest degradation (REDD) and market approaches to emissions reductions, it also establishes mechanisms through which developed countries can provide financial support to developing countries for adaptation purposes.

The Accord, while not officially adopted by the Conference, will help move the process forward. Before you start making hotel reservations for Mexico City in December, let’s take a look back on some the important things we saw in Copenhagen and how they might affect the process moving forward.

Do we need to scrap the COP? – If there was one thing that was pretty clear after two weeks in the snow and fog of Copenhagen, it’s that the current structure for international negotiations is very limited in what it can achieve. It would be difficult to get 193 nations to agree on something trivial like who was the best Bond (quite obviously Connery), so getting them to agree on how best stop a global catastrophe is not going to be a walk in the park. The UNFCCC structures and processes, however, make progress painfully difficult at times.

The final result of the COP is a perfect example. After weeks of arguments, stalemates, and walkouts, it took five heads of state trapped in a room together (Obama and the leaders of Brazil, China, South Africa, and India, also called BASIC) to come up with three pages of somewhat vague agreements to be solidified at a later date. Most of the plenary was happy enough to have some kind of outcome and voted to approve the politically binding (not legally) Accord. To adopt an accord, however, requires a unanimous vote of approval from the delegates. Venezuela, Bolivia, Nicaragua, Cuba, and Sudan all felt that the Accord developed by the big kids did not include their particular interests or they were not properly consulted, and at least four of them voted against the Accord. Thus, instead of adopting it, the COP took note of the Accord, meaning that it acknowledges its existence and COP members can voluntarily comply with it, but it currently has no legal authority. None of this means that the Accord is not significant, but it shows how fragile COP proceedings can be. All it takes it one cheesed-off country (or one that is scared of economic spectres) to stand between the world and a binding international climate agreement.

So, are there alternatives? Indeed there are, and they may become more attractive as nations look to move forward from Copenhagen. It’s clear that the complexities of climate change are a bit overwhelming for the UNFCCC process. Parallel conversations need to happen to more effectively address major issues and disagreements. As I said before, the Accord was written between the US and BASIC. Those nations represent over 50% of the world’s CO2 emissions. Throw the EU, Japan, and the rest of the world’s 17 largest economies and you have over 90% of emissions represented in one room that is much smaller and more manageable than the Bella Center. Dialogues between these critical nations can help break some of the loggerheads encountered in the COP discussions. There are two possible avenues through which parallel negotiations can help:

• Bilateral and multi-lateral talks: What if the US and China went into Copenhagen with a semi-formal agreement for technology sharing and MRV? Or if the EU worked out a deal with Brazil, South Africa, and Indonesia for funding programs for REDD and adaptation that could easily be plugged into UNFCCC institutions? Major emitters working directly with each other to smooth out differences and reach understandings before entering COP negotiations may help cut down on the static and grease the skids for legally binding outcomes that robustly address major issues.
• Major Economies Forum: About that smaller room I mentioned earlier. The MEF can play a substantial role in advancing COP discussions if it wants to. It can provide a more intimate setting in which the US and EU can talk about monitoring emissions and trade restrictions with China and India without the chaos and pressure of the COP negotiations. The MEF also does not have entrenched categories of Annex I and Non-Annex I countries that were established by the Kyoto Protocol, so the distinctions between developed (US, EU, Japan, etc.) and emerging (BASIC and others) are more flexible and can better reflect the economic realities in each nation.

These suggestions are not advocating a total dismantling or abandonment of the UNFCCC process. Instead, these negotiations can occur outside the process, but the end results can be designed so they can easily plug into on-going COP discussions. There will likely be issues regarding equity for developing countries and many of them will probably resent not being actively involved in the process. But going outside the COP may lead to significant progress on climate change and could also spur action within the COP as well. If you don’t want to take my word for it, you can listen to Rob Stavins and Joe Romm instead.

Et tu, China? – Going into Copenhagen, it looked like the US was once again going to end up looking like the bad guy. Leave it to China to beat us at our own game. Without the US to hid behind anymore, China and India to a lesser extent, stepped forward to block huge progress. For the two weeks of the COP, China stonewalled and refused to budge on its demands for the developed world. Then in the final hours, when things got real with the various heads of state, China gave the proceedings the proverbial middle finger by sending a mid-level official to talk to the leaders of the other nations. Even after Obama managed to track down Chinese Foreign Minister Wen Jiabao and get him talking, China still vetoed the inclusion of language requiring a 50% reduction in total global emissions and 80% reduction from developed countries by 2050. Following the meeting, British Climate Secretary Ed Miliband called out China for trying to hijack the conference and being an obstacle to progress.

China’s actions, while discouraging, are not entirely surprising. It had all the leverage in this situation. Unlike other countries like Brazil and, to some extent the US, there was no domestic political pressure for the Chinese to reach a deal. The Chinese know they are key to any international agreement, and they know how big a role they play in US domestic climate debates. Why should they move when they hold all the cards? It is also pretty clear that the Chinese have no desire to be an international leader on climate change. They have announced what they consider strong reductions (45% reduction in carbon intensity by 2020) and they have been going nuts on the renewable energy front, but they don’t want to commit to anything that’s going to cut into their economic growth over the next few decades. If the US and EU are looking to form some kind of coalition of the willing for climate change, they’d be better off going after Brazil, Indonesia, and other emerging economies first. Everyone else might have to be on board first before the Chinese decide to play.

The more things change, the more they stay the same – The Obama Administration came entered 2009 looking to reclaim American leadership on climate change. The US was engaged and negotiating in good faith for the first time in eight years. But, ever the realist, Obama wouldn’t sign anything that has no chance of passing the Senate. Consequently, US negotiators would not commit to anything that was not laid out in domestic legislation. What domestic legislation am I talking about? Well, uhh…

It’s pretty simple. The world can’t take effective action without the US, and the US can’t act effectively without domestic legislation. Things cannot move forward until the Senate acts. Obama cannot make “transformative and inspiring commitments” that will not pass a filibuster vote, let alone the 67 votes needed to pass an international treaty. Copenhagen may have some effect on the Senate debate in 2010, and that debate will loom very large over future COPs just as it did in Copenhagen.

REDD in the face – If you followed our on-the-ground reporting, then you know the silver lining in all the chaos and tomfoolery was the advances in REDD and protecting tropical forests. The negotiations regarding the REDD text were consistently the most promising. While a final agreement was not reached, there were some promising developments. First, the US, Australia, Japan, Norway, Britain, and France pledged $3.5 billion for REDD programs over the next three years. Second, the Accord acknowledged how important REDD is to achieving robust emissions reductions and discussions are going to continue into the future. There are still some issues to iron out, like national vs. sub-national monitoring systems, but saving the forests was one of the rare things on which almost everyone could agree. Insert tree-hugging hippie joke here.

Copenhagen was a disappointment in a lot of ways, and a disaster in some ways (I’m not going to talk about logistical problems here), but it had real outcomes that matter. It is not the solution many were hoping for, and the world is currently a long way away from keeping temperature rises from 2 degrees Celsius. But things are moving forward. Think of Copenhagen as a baby step, with a really nice wool sock.