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The Road Map From Bali, Parts 1 and 2

New York Law Journal

February 29, 2008
by Stephen L. Kass and Jean McCarroll

The Road Map From Bali, Part 1

New York Law Journal

February 22, 2008

The way forward from Bali - technically the 13th Conference of the Parties to the 1992 Framework Convention on Climate Change that took place in Bali, Indonesia, in December 2007 - has engendered much discussion in the press, among politicians and policy makers, and within the legal profession.

Almost daily, new proposals are unveiled for national, international, regional, or local initiatives to combat global warming through new legislation, regulations, carbon taxes, building codes, fuel standards, light bulbs, or lifestyle changes in the United States and more responsible development policies in China, India, and other developing countries.

This two-part column attempts to place this cascade of proposals in context and to explain how the initiatives now under consideration in the United States relate, or fail to relate, to the international community’s attempt to address the global dimensions of climate change.

Part 1, today, describes the new Bali “road map” and the principal legislative proposal concerning climate change now pending in Congress, the “Climate Security Act of 2008,” commonly known as the Lieberman-Warner bill.

Part 2 will survey the major state and municipal efforts, particularly in New York state, to combat the effects of climate change in the absence of federal legislation, identify the broad range of corporate and individual responses to those increasingly clear effects, and set forth our conclusions with respect to the kinds of actions required if the United States is to play an effective role in combating this global challenge.

The Bali Road Map

The nearly 200 nations meeting at Bali, including the United States, were all parties to the 1992 Framework Convention, which requires developed countries to make unspecified efforts to reduce greenhouse gas (GHG) emissions, with the goal of reducing those emissions to or below their 1990 levels. Most of the nations, but not the United States, were also parties to the Kyoto Protocol to the convention, which specifies binding targets (generally around 7 percent below 1990 levels) for GHG reductions by industrialized countries by 2012 and sets forth a variety of techniques, notably emissions trading, “joint implementation,” and “clean development mechanisms,” for countries to use cooperatively in meeting those targets.

The Bali conference was intended to lay the groundwork for the period following 2012 in view of the near-universal recognition that: (1) the Kyoto targets were themselves inadequate to prevent the doubling of GHG concentrations in the Earth’s atmosphere by the end of the current century; and, (2) broader and more sustained action is now required to prevent long-term catastrophes in many parts of the world as a result of rising sea levels, changed weather patterns, increased desertification, and other impacts of climate change. The conference was also an attempt to induce the United States to participate in this effort, which many countries view as an essential condition to persuade China, India, Brazil, and other rapidly developing countries to commit to GHG limitations on their own development plans. Bali was also seen by many poorer countries as an opportunity to seek commitments from the developed world, which is largely responsible for the climate change crisis, to help finance both more benign development strategies and the hugely expensive measures that many poorer countries will be required to take to mitigate, or adapt to, the reality of rising sea levels and other climate-change-induced impacts on rural and urban environments.

Four-Point ‘Road Map’

To the surprise of many, the conference succeeded, after a tense standoff with the Bush administration, in agreeing on a four-point “road map” for future negotiations and a goal of agreement on the terms of a binding post-2012 treaty by the time the parties reconvene in Copenhagen in December 2009, a date sufficiently far after the 2008 U.S. elections that a new administration and Congress can be expected to play a more positive role than the United States has played to date. In the meantime, the new road map is to focus on four principal climate change themes: (1) mitigation (no longer prevention) of climate change impacts through national and regional emissions reduction measures designed to achieve significant GHG reductions (at least 50 percent) from 2000 levels by mid-century; (2) adaptation to the inevitable consequences of climate change through disaster recovery and other “resiliency” actions; (3) technology transfers to developing countries to help those countries carry out both mitigation and adaptation plans; and, (4) financing for all of the above, including measures to encourage private-sector investments in renewable resources, forest preservation, and technologies designed to reduce or sequester GHG emissions from industrial operations.

U.S. Congressional Initiatives

In the absence of any meaningful Executive Branch action to address climate change, a flurry of proposals were unveiled in 2007 in both the Senate and the House to force such action by the federal government. Most current attention is focused on the proposed Climate Security Act of 2008, which is co-sponsored by Senator Joseph Lieberman, I-Conn., and Senator John Warner. R-Va. The Lieberman-Warner bill (S. 2191) was reported favorably out of the Senate Environment and Public Works Committee on Dec. 5, 2007 but is not expected to be enacted (after further revision) until 2009, after the 2008 presidential election.[1]

The purposes of S. 2191 are to “reduce United States greenhouse gas emissions substantially enough between 2007 and 2050 to avert the catastrophic impacts of global climate change . . . while preserving robust growth in the United States economy, creating new jobs, and avoiding the imposition of hardship on United States citizens.”[2]  The bill cites the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) for the conclusion that “preventing dangerous interference with the climate system will require a global effort to reduce anthropogenic greenhouse gas emissions worldwide by 50 to 85 percent below 2000 levels by 2050.”[3]

‘Cap and Trade’ Program

In essence, S. 2191 would create a “cap and trade” program, to be administered by the Environmental Protection Agency (EPA). After setting annual overall caps on GHG emissions, the EPA would allocate “allowances,” some to be distributed to emitters (who would need an allowance for each ton of carbon dioxide they emitted) and others to be sold at auction. Allowances received could be used (to permit GHG emissions), traded (sold to other emitters who need them), held for future use, or retired. Extra allowances would be issued to emitters taking certain beneficial actions. The current version of the bill consumes hundreds of pages, is very detailed, and would require the creation of a new bureaucratic structure within the EPA, if not an entirely new agency.

Title I calls for the establishment of a federal GHG registry to collect data that would be used to design GHG emission reduction strategies. All “affected facilities” (basically, GHG emitters) would submit periodic reports stating: (1) the quantity and type of fossil fuels they extracted, produced, refined, imported, exported, or consumed; (2) the quantity of hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, nitrous oxide, and carbon dioxide captured and sequestered and other GHGs generated, produced, imported, exported, or consumed at or by the facility; (3) the quantity of electricity they generated, imported, exported, or consumed; and, (4) the quantity of GHGs they emitted, and the sources of GHG emissions at the facility. On the basis of those data, the EPA administrator would establish overall GHG emission allowances for each year, beginning in 2012 and declining annually to 2050, and allocate those allowances to all “covered facilities,”[4] taking into consideration each facility’s credits for sequestration and destruction of GHGs.

Under Title II, pursuant to regulations to be promulgated by the administrator, holders of GHG emission allowances would be permitted to trade their allowances. Under a “domestic offset program,” a facility owner or operator could satisfy up to 15 percent of the facility’s allowances with offsets from agricultural, forestry, and other land-use projects that reduce GHG emissions or increase biological sequestration. Such offset allowances could also be traded, subject to appropriate approval, verification, tracking, and registration requirements. International emissions allowances could also be used for up to 15 percent of a facility’s allowances, provided such foreign allowances were from countries with GHG programs of a stringency comparable to that of the United States. Title II also would establish an Efficiency Board to ensure that the GHG limits established would not significantly harm the economy; the board would submit quarterly reports to the president and to Congress outlining the economic costs and benefits, suggesting corrective measures to reduce costs, and reporting any fraud or manipulation of the GHG program.

Title III of S. 2191 specifies how the emissions allowances would be allocated each year. The administrator would allocate percentages ranging from 21.5 percent in 2012 to 69.5 percent in 2050 to a new “Climate Change Credit Corp.” for auctioning of allowances. Emission allowances would also be allocated: (1) to covered facilities; (2) to states as rewards for energy savings and for setting and meeting targets more stringent than federal emissions targets (to be used, or sold for proceeds to be used, to mitigate impacts on low-income energy consumers, to promote energy efficiency, to promote investment in non-emitting electricity generation technology, to improve public transportation, etc.); (3) to “load serving entities” (entities that deliver electricity to retail consumers) to sell or use to mitigate economic impacts on low- and middle-income consumers and to promote efficiency on the part of consumers; (4) to local natural gas distribution companies to sell and use the proceeds to mitigate economic impacts and promote energy efficiency; (5) to owners or operators of carbon-capture and geological sequestration projects; (6) to the secretary of Agriculture for distribution to entities that reduce GHG emissions from agriculture and forestry; and, (7) to foreign “forest carbon activities” such as reducing deforestation and forest degradation and increasing carbon sequestration by restoring forests. Declining percentages of the emission allowances would be allocated from 2012 to 2030 for “transition assistance” to fossil-fuel-fired electric power generating facilities, rural electric cooperatives, energy-intensive manufacturing facilities, producers and importers of petroleum-based fuel, and hydrofluorocarbon producers and importers. The administrator would also establish a program to reduce methane emissions.

Title IV would establish in the Treasury of the United States several funds to receive the proceeds from auctions of emission allowances: the Energy Assistance Fund (for low-income home energy assistance programs); the Climate Change Worker Training Fund (for training for jobs created through low-carbon energy, sustainable energy, and energy efficiency initiatives); the Adaptation Fund (for assisting fish, wildlife, and plants in adapting to climate change and ocean acidification); the Climate Change and National Security Fund (to help least-developed countries reduce GHG emissions and respond to the destabilizing impacts of climate change); the Bureau of Land Management Emergency Firefighting Fund and the Forest Service Emergency Firefighting Fund (for fire suppression activities necessitated by global warming); and the Climate Security Act Management Fund (to be used to implement the act).

Climate Change Credit Corp.

The Climate Change Credit Corp., an independent nonprofit corporation, would conduct the auctions. Auction proceeds would also be used for awards to domestic producers or creators of zero- or low-carbon energy technologies, advanced coal and sequestration technologies, fuel from cellulosic biomass, electric and fuel-cell-powered vehicles, and sustainable energy programs.

Title V provides for the establishment of new residential boiler requirements, regional standards for space heating and air conditioning, updated national and state model building and energy codes and standards. Title VI aims to promote a strong global effort to reduce GHG emissions to ensure that emissions from other countries do not undermine U.S. efforts. It provides for dividing the world into an “excluded list” of countries with GHG emissions controls comparable to those of the United States (plus countries that emit de minimis percentages of the world’s GHGs), and a “covered list” of all other countries. Beginning in 2009, importers of goods from “covered list” countries would need to buy “international reserve allowances,” which would obviously raise the prices of such goods for U.S. consumers.  

Title VII provides for review by the National Academy of Sciences, every three years beginning in 2012, of the performance of the GHG program in reducing GHG emissions and mitigating the adverse effects of global climate change. It also provides for review by the EPA and for EPA recommendations to the president and Congress for improvements in the program.

Title VIII provides a framework for a program of geological sequestration of carbon dioxide. Title IX provides that in a national security emergency the president may temporarily adjust, suspend, or waive GHG emissions regulations in order to minimize the effects of the emergency. Title X provides for caps on hydrofluorocarbon consumption and importation and for allocations and auctions of hydrofluorocarbon allowances. Title XI would amend the Clean Air Act to provide for a national hydrofluorocarbon recycling and emission reduction program and would direct the administrator to establish a method for determining the life cycle of GHG emissions of all transportation fuels and for reducing emissions per unit of energy.

Conclusion

As is evident from even this brief survey of the bill, S. 2191 is certain to go through numerous amendments in a legislative process that is not only partisan but also subject to intense lobbying. It is likely that all major compromises will await the outcome of the 2008 elections.

There are important open questions, for example, involving the terms of the emissions credit auctions, the credits to be given for forest preservation, the availability of a “safety valve” for noncomplying industries, and, above all, growing questions as to whether credits to developing countries for “avoided” GHG emissions can actually be verified and, if not, whether the “clean development mechanisms” will simply authorize increased global emissions rather than reductions.

Even when enacted, S. 2191 or its successor will require substantial time to implement under the best of conditions, and, assuming no litigation delay, is also likely to require a new EPA (or other) bureaucracy that may make even traditional Democrats long for the simpler marketplace effects of a nationwide carbon tax, a GHG reduction strategy that both Republicans and Democrats currently view as anathema.

The Future

In short, while the Lieberman-Warner bill offers the prospect, for the first time, of meaningful U.S. climate change action, it is likely to be several years, at best, before its provisions are effective and several years after that before any significant GHG reductions (or ancillary financial or technological benefits) can be expected from Congress. It is for this reason that Americans are increasingly turning to their state and local governments, and even to private corporations, to provide at least patchwork responses to this global challenge.

Part 2 of this column will survey these efforts and assess how effectively they can complement future federal programs to help restore U.S. leadership in this area of global concern.

and Jean M. McCarroll, together with Clifford P. Case and Michael C. Davis, direct the environmental practice group at Carter Ledyard & Milburn.


Reprinted with permission from the February 22, 2008 edition of The New York Law Journal  © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.


Endnotes


[1] Another bill to control GHG emissions is being drafted in the Energy and Commerce Committee in the House of Representatives.

[2] S. 2191, §3.

[3] S. 2191, §2.

[4] Any facility that uses more than 5,000 tons of coal annually; produces or imports natural gas; produces or imports petroleum or coal-based liquid or gaseous fuel; produces or imports more than 10,000 “carbon dioxide equivalents” (GHG equivalents to 1 metric ton of carbon dioxide) of carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, or perfluorocarbon; or emits more than 10,000 carbon dioxide equivalents of hydrofluorocarbons. S. 2191, §4 (7).


The Road Map From Bali, Part 2

New York Law Journal

February 29, 2008

In Part 1 of this analysis, we described the Bali conference’s “road map” for future international action on climate change and the pending Lieberman-Warner bill (S.2191), which represents the first serious congressional effort to develop a responsible U.S. climate change policy. 

Part 2 describes the climate change initiatives already being taken by New York state and city, by corporations, and by individuals and sets forth a number of considerations that we believe should guide policy makers as they struggle to address this global challenge.

New York State Initiatives

Despite recent congressional activity, many state leaders have concluded, correctly in our view, that there is little prospect for meaningful federal action on climate change until late 2009. Both New York and California have therefore moved ahead with their own aggressive climate change initiatives, sometimes in cooperation with neighboring states. We have described in previous columns[1] the litigation that New York and other states brought challenging the EPA’s refusal to regulate greenhouse gases (GHGs) as pollutants under the Clean Air Act, leading to the Supreme Court’s decision in Massachusetts v. EPA[2]and the more recent challenges that California and New York have brought against Midwestern utilities for GHG emissions and against the EPA for denying states the ability to impose higher fuel economy standards than required federally.

Regional Greenhouse Gas Initiative

In addition to these lawsuits, New York is in the process of launching three other climate change efforts intended to complement or spur future federal programs and international climate change regimes. The most significant is the Regional Greenhouse Gas Initiative (RGGI) undertaken by New York in cooperation with nine other Northeastern states. When implemented in New York and the other participating states, RGGI will be a relatively straightforward “cap and trade” program applicable to major electric power generators, the single largest source of GHGs in the Northeast. Each participating state would distribute (or auction) initial emission credits to be used against a declining annual cap on permissible GHG emissions by regulated facilities, which could buy needed credits or sell unneeded ones in the marketplace.

There are important issues yet to be resolved by the RGGI states, including the auction process, how to prevent “leakage” from power sources not subject to GHG caps, the relationship of RGGI credits to federal or international emissions trading regimes, and the types of monitoring and enforcement required to make the program effective. It is unclear how feasible it would be to extend such a cap and trade program to other GHG sources, such as industry, airlines, shipping, consumer products, commercial office space, motor vehicle operators, and homes, all of which present more difficult regulatory challenges than the highly concentrated power supply industry. Nevertheless, RGGI, together with California’s similar program (which is intended to reach virtually all GHG sources, but more slowly than RGGI) represents an important model for the nation.

In addition to RGGI, New York State’s Department of Environmental Conservation (DEC) has another important climate change initiative under way - assessing the climate change impacts of proposed development projects and other “actions” subject to the State Environmental Quality Review Act (SEQRA). SEQRA requires the assessment of all potentially significant environmental impacts before any state or municipal agency takes discretionary action. The Supreme Court’s holding that GHGs constitute “pollutants” under the Clean Air Act implies that the potential climate change effects of such actions must be considered, along with impacts of other air pollutants, if a project’s climate change impacts are not expected to be de minimis.

How such an analysis is to be conducted and where “significance” begins, however, are still open questions and likely to remain so until the DEC provides regulatory guidance to both its own staff and private parties as to the appropriate modeling methodology, significance levels, cumulative assessment requirements, and other technical requirements for measuring an individual action’s potential climate change impacts. Similar issues will need to be addressed by the DEC as part of a revised state implementation plan when the EPA finally promulgates its new National Ambient Air Quality Standard for GHGs under the Clean Air Act. However, SEQRA reviews are a statutory requirement for New York agencies and the absence of authoritative guidance from the DEC could place public and private actions in jeopardy if every applicant or agency has to invent its own definition of climate change significance for use in impact statements and assessments. The same challenge will also arise under the National Environmental Policy Act when federal agency action is involved.

Renewable Energy Sources

A third New York State initiative is the search for renewable energy sources. The DEC, the Public Service Commission, and the governor’s office have all encouraged both public and private suppliers in New York to generate power from renewable sources, including wind, solar, geothermal, hydro, biomass, waste, and other nonfossil fuel sources (except nuclear). These are major challenges for the state’s power suppliers since many of the proposals for renewable sources, such as farm-based or offshore wind farms, face formidable political or financial obstacles.

On the other hand, utilities and other power suppliers that simply preempt “renewable” power sources, such as electricity generated by hydro or nuclear power, may simply be reallocating existing sources within the electricity market without appreciably increasing supply. This may earn those suppliers kudos from politicians or even consumers but does little to expand the range of alternatives to fossil fuels and their GHGs.

New York City’s Plan 2030

We have previously described the array of environmental programs that Mayor Michael Bloomberg has committed the city to undertake over the next 25 years.[3] Some of these initiatives are aimed at GHG reductions, particularly the city’s congestion pricing proposal to reduce regional traffic destined for Manhattan’s downtown core, expanded “green roofs” and parks, and building designs that encourage energy efficiency. Whether the city’s own offices and facilities, including its vehicle fleet, will reduce overall electrical and energy demand remains to be seen. However, Mayor Bloomberg has correctly perceived, and vigorously articulated, the important role of cities in addressing climate change issues through energy efficiency and adaptive measures intended to protect flood-prone residential areas and infrastructure. While New York City may have the ability to implement such measures, many U.S. cities, such as New Orleans, lack the resources to protect their critical facilities from coastal and riparian flooding. Most of the megacities of the developing world also lack such resources and are likely to be receptive to Mr. Bloomberg’s recent call on the United Nations to assist in implementing adaptation and “resiliency” measures before it is too late to do so.

Corporate Initiatives

Despite the best efforts of their sponsors, new federal and state GHG legislation or regulation is not on the immediate horizon. Yet there are four powerful reasons for U.S. corporations to begin addressing their GHG emissions even in the absence of state or federal requirements. The first is the long-term cost of continued reliance on fossil fuels or products derived from fossil fuels. For many industries, escalating fuel costs will threaten future competitive positions even in the absence of regulation.

The second reason is market access in countries, including European Union states, that are beginning to impose GHG requirements on domestic producers and will surely not continue to tolerate imported U.S. goods that fail to meet domestic standards. Indeed, it is likely that the E.U. could successfully cite previous U.S. claims that GATT Article XX authorizes such domestic import controls in order to protect the global environment and to carry out the terms of the Kyoto Protocol and the Bali road map.

The third reason is shareholder and investor demands and, in particular, the Ceres (a coalition of environmental activists and investors) movement. Ceres, which was born as a series of demands for more responsible corporate conduct following the Exxon Valdez oil spill in Prince William Sound, Alaska, has evolved into a collaborative network of environmental organizations, corporations, and institutional investors committed to the incorporation of environmental factors, particularly climate, into corporate decision-making. In this role, Ceres has taken the lead in creating an Investor Network on Climate Risk that now has more than 50 investors, with some $4 trillion in assets, including a significant number of public and labor pension funds (including CALpers, AFSCME, UNITE, and the Teamsters), as well as religious denominations, foundations, universities, and investment managers.

With investors increasingly worried about the regulatory, physical, and competitive risks associated with climate change, Wall Street investment advisers issued more than a dozen reports on those risks (and opportunities) within the past three years, and at least three firms (Price Waterhouse Coopers, JPMorgan, and Innovest) have established formal climate change research services. During the past five years, the number of shareholder resolutions on climate change has doubled, and in 2007 some 43 resolutions received, on average, more than 20 percent affirmative shareholder votes in support of demands for management to focus on climate changes in production, purchasing, or investment decisions, as well as in annual reports to shareholders.

The fourth reason is the Securities and Exchange Commission (SEC) and, more broadly, the requirements of federal and state securities laws. Although the SEC’s Regulation S-K has long required, in items 101, 103, and 303, disclosure of material environmental risks from environmental regulations, litigation, and other contingencies, there have been few SEC, and virtually no private, actions for failure to disclose such environmental risks under those provisions, or even under Rule 10b-5. That, however, is almost certain to change. Increased shareholder attention to climate change risks, the sweeping scope of those risks for manufacturing, service, and financial firms, and the Sarbanes-Oxley requirement that chief executive and financial officers certify financial reports all counsel a closer look at, and greater disclosure of, climate change and other environmental risks. To emphasize this point, in September 2007, Ceres and others filed a petition with the SEC demanding greater disclosure of climate change risks in corporate filings. In a parallel effort to invoke state securities laws in the climate change cause, New York’s Attorney General, Andrew Cuomo, has subpoenaed internal data from five energy suppliers in order to examine potential violations of New York’s Martin Act for failing to adequately disclose climate change risks to investors.

Individual Actions

Even if the governmental and corporate initiatives described above are successful, individual actions will be required as well, particularly in the areas of electricity demand and transportation. According to the Associated Press, Consolidated Edison recently reported that New York’s energy use increased by 23 percent in the last decade, partly because of bigger appliances and new electronic devices: large flat-screen TVs (which use three times as much electricity as traditional TVs); computers for every member of the family; air conditioning for every room in our ever-larger homes; and an array of other electronic gadgets.

For transportation, most Americans use private vehicles, often SUVs, rather than vastly more energy-efficient public transportation. Land-use patterns are also part of the problem since public transportation cannot effectively serve people who live in houses on four-acre lots. Moreover, the more people move from cities and towns to suburbs and exurbs, the farther they need to drive their SUVs to get to their jobs or a grocery store.

With the need to control GHG emissions becoming ever more urgent and with the increased scarcity of high-quality, easily accessible fuels of all sorts, we cannot continue to pursue our profligate lifestyles. The range of individual actions to reduce GHG demand in the U.S. is now well-known: compact light bulbs, home insulation, reduced thermostats, less air conditioning, and public support for a nationwide carbon tax (and elected officials with the courage to vote for it). What is less clear is whether most of us are prepared actually to act on this awareness. However, it is not often that environmental awareness, national security and cost considerations all point in the same direction, so perhaps this form of “climate triple play” may yet succeed.

Conclusion

The new attention to climate change in the United States is welcome evidence that the U.S. public, the corporate community, and even Congress are far ahead of the Bush administration in recognizing the urgent need for action to maintain a livable planet. However, as noted above, there are critical issues to be resolved, both in Congress and the states. Moreover, some important caveats are required if this new awareness is to have positive results for the United States and the world.

First, effective climate change programs will require at least two generations, 50 years, of sustained attention and investment. Whether public officials, corporate executives, the media, or the public will be willing to devote substantial long-term resources and attention to programs whose benefits may not be evident for decades remains to be seen.

Second, the costs of a new U.S. climate-change policy must not fall primarily on those Americans already struggling with the widening income and wealth gaps within our nation. Any policy that exacerbates those growing divisions in American society would be neither fair nor sustainable over the long run.

Third, even sustained reduction in the United States’ “carbon footprint” and the world’s will not be enough to avert potentially disastrous consequences (urban flooding, accelerated desertification, declining agricultural production, and the spread of disease) in many developing countries that have contributed little or nothing to climate change. Unless the United States and other developed countries devote the same commitment to helping poor countries adapt to, and recover from, climate-change impacts, our own reduced GHG emissions, even if realized, will do little to assure a sustainable (or peaceful) world.

Fourth, GHG reductions, essential as they are, must not become the exclusive focus of climate change actions. Environmental agencies in the United States have long been accused of tunnel vision because they focus on only one medium - air, water, soil, energy, toxic substances - at a time, rarely attempting (as the E.U. does) to examine cumulative environmental impact in all areas of regulatory concern. This is particularly crucial for climate change because some GHG-reduction strategies (for example, nuclear power, coal shale, ethanol, or biomass diesel) may have significant impacts on equally urgent environmental areas such as water scarcity, food supplies, or urban air quality. To be effective in the long-term, climate change strategies and programs need to be crafted with a balanced awareness of these trade-offs and the mitigation required to prevent other adverse impacts to the environment and vulnerable populations.

Fifth, even these broader environmental strategies must be developed and implemented in ways that reinforce rather than undermine the rule of law and basic human rights in developing countries. As we have observed in a previous column,[4] effective enforcement of environmental mandates relies significantly on citizen access to an independent judiciary and respect for civil and political rights, as well as public perception that environmental programs will help realize the economic, social, and cultural rights of those most directly threatened by both climate change and poverty.

and Jean M. McCarroll, together with Clifford P. Case and Michael C. Davis, direct the environmental practice group at Carter Ledyard & Milburn.

Reprinted with permission from the February 29, 2008 edition of The New York Law Journal   © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

Endnotes


[1] “The Supreme Court’s Greenhouse Gas Decision,” NYLJ, April 27, 2007, and “Litigating Climate Change Via State Regulations, Federal Courts,” NYLJ, April 28, 2006.

[2] 549 U.S. - , 127 S.Ct. 14338 (2007).

[3] “Assessing Mayor Bloomberg’s PlaNYC 2030,” NYLJ, June 29, 2007.

[4] “Environment, Development and Human Rights,” NYLJ, Oct. 26, 2007.


Stephen L. Kass

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