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Presidential Action on Climate Change

New York Law Journal

September 16, 2014

On Aug. 27, The New York Times carried two important stories on climate change—one on the most recent draft report by the U.N.’s Intergovernmental Panel on Climate Change (IPCC) and another on President Barack Obama’s determination to take executive action on climate change, including a “sweeping international climate change agreement,” notwithstanding Congress’ failure to pass domestic legislation or to ratify even noncontroversial treaties calling for joint international action. Readers of this column will be familiar with the substance of the new IPCC report, which reiterates the same warnings, in equally blunt language, summarized in my last Law Journal column (“Addressing Climate Change to Preserve our Children’s Future,” May 2, 2014).

The president’s declared intention to use his executive powers to address climate change is not exactly new, but at least suggests that his attention is once again focused on this issue. He is expected to present his proposals later this month at the United Nations when the nations of the world gather once again to pledge—but not commit—to actually do something about climate change. Whether the president will follow through on his proposals or, as with gun control and other issues, substitute rhetoric for action remains to be seen.

But what more can the president do, absent congressional action, to reduce U.S. greenhouse gas (GHG) emissions? Equally important, what can he do to help the principal victims of climate change in the world’s developing countries adapt to the now inevitable impacts of GHG emissions that are already in the atmosphere and the oceans? Moreover, what could any U.S. president do to slow GHG emissions already in the industrial pipelines and economic development plans of growing economies in China, India, South Africa, and Russia or in the forest-clearing fires of Indonesia, Brazil and elsewhere? And how could the president persuade the major transnational corporations to help address these challenges, rather than erecting barriers, through litigation, political campaigns and lobbying in Washington, to effective domestic or international action to protect our planet’s resources and the world’s most vulnerable peoples?

There are no simple answers to these questions. This column suggests a number of approaches that the president might pursue if he is serious about finally addressing climate change while it is still possible for him to do so. One hopeful indication is that, after decades of telling the American public—and the nations of the world—that the 1992 U.N. Framework Convention on Climate Change creates no legally binding obligations, the administration now appears to be conceding that it does, even though it lacks specific numerical reductions in GHG emissions.

In particular, Article 4, Section 2 of the Framework Convention (which was ratified by the Senate) requires the United States and other developed countries to “adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its [GHG] emissions,” recognizing the importance of bringing their respective GHG emissions down to 1990 levels by 2000 and reporting periodically to the other Convention parties on the specific steps they have taken “with the aim of returning [GHG emissions] to their 1990 levels….”

Far from meeting this obligation, the U.S. has since 1992 permitted its GHG emissions to increase substantially over 1990 levels and has taken only modest national action to try to reverse that trend. It is at least arguable, therefore, that the president has not only the power but the obligation to act within his scope of authority to help bring the United States into compliance with its existing treaty obligations. Exactly how that obligation will influence the validity of either domestic or international climate change actions by the president will be interesting to watch.

Domestic GHG Reductions

The president has, belatedly, authorized the Environmental Protection Agency (EPA) to impose GHG limits on existing U.S. coal-fired power plants. These proposed EPA regulations are now going through a complex and lengthy administrative review process, after which they will be challenged in court by an array of U.S. industries determined to continue to burn coal as long as possible, just as the recent EPA requirements for new coal plants were challenged by the industry.

As a result of these challenges and the administration’s timidity in using EPA’s statutory authority, the United States still has—seven years after the Supreme Court held in Massachusetts v. U.S., 549 U.S. 497 (2007), that carbon dioxide is a “pollutant” subject to EPA regulation—only the beginnings of a domestic program to limit emissions of carbon dioxide from coal plants. The IPCC has identified coal as the single largest source of the world’s runaway GHG emissions and made clear that reducing those emissions immediately is essential to any effective program to prevent the earth’s climate from reaching a “tipping” point, beyond which it will be virtually impossible to reverse global warming and associated environmental, economic and social impacts.

This author has previously suggested that U.S. lawyers should consider their own social responsibility before rushing to engage in the kind of broad-scale effort to delay or scuttle EPA’s climate change regulations. More broadly, however, the administration might consider how it might begin to use the federal government’s considerable market and licensing power, including the grant of offshore drilling leases and other discretionary licenses, to induce power producers, oil, gas and coal companies and other major industrial emitters of carbon dioxide to cooperate in implementing EPA’s GHG requirements.

To its credit, the Obama administration successfully negotiated acceptance of its increased fuel efficiency standards for cars during the president’s first term. A similar hands-on effort for both new and existing power plants and major industries is required now and can fairly be explained as part of the president’s efforts to carry out our nation’s existing treaty obligations under the 1992 Framework Convention.

International Efforts

Any proposed international accord on climate change will, unlike domestic efforts, have to deal not only with reducing future GHG emissions, but also with helping developing nations adapt to the inevitable impacts of past and future emissions for which they bear little responsibility. For most of the international community, it is this adaptation assistance that is the most critical part of any such accord. As the Times noted, the Obama administration joined the European Union at the 2009 Copenhagen Conference in non-binding pledges of $100 billion annually, beginning in 2020, for both adaptation and mitigation assistance to developing countries. Although subsequent climate change conferences have largely agreed on the mechanisms for disbursing those funds, very little money has in fact been appropriated or contributed for these purposes. Moreover, it is now clear that even $100 billion annually is far too little to help developing countries protect or rebuild urban infrastructure, preserve critical farmland and coastal areas and resettle the tens of millions of people likely to be dislocated by rising seas, floods and droughts attributable to climate change.

The new U.S. willingness to recognize the 1992 Framework Convention as legally binding is potentially significant in this context. Article 4, Section 4 of the Convention provides that developed country parties “shall also assist the developing country parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects.” While that does not substitute for the necessary congressional appropriation of funds for these purposes, it could increase the president’s flexibility in allocating funds already appropriated for climate change or related foreign policy purposes and his ability to demand that Congress appropriate the funds necessary for the United States to meet this treaty obligation. It would also give the president far more authority to structure working arrangements with other countries to carry out their respective Framework Convention obligations.

What might those arrangements involve? On the GHG mitigation side, they would surely not involve placing an overall cap on any nation’s GHG emissions. As Michael Levi of the Council on Foreign Relations pointed out even before Copenhagen, no nation is about to limit the size of its overall economy, particularly when it is striving to reduce widespread poverty or simply to establish a secure civil society for its citizens. Still, as Levi noted at the time, the United States could agree with individual partners to assist on a variety of specific programs to reduce GHG emissions through jointly developed solar, wind or geothermal energy projects (China, of course, has done this without U.S. assistance) or to develop practical carbon capture and storage (CCS) facilities or combat deforestation. Presidential agreements in these areas should fall well within existing legislative or Framework Convention authority.

Nevertheless, the most critical area for the president to address remains funding for climate adaptation projects in developing countries, a paramount need if those governments are to meet the basic needs of their citizens over the next 50 years, even if serious mitigation programs are implemented by the world’s principal emitters. Where could the $100 billion annually come from and with what confidence could eligible countries rely on that assistance over an extended period of time to carry out meaningful adaptation programs that could take decades?

If, as appears certain, the adaptation needs of developing countries already exceed $100 billion annually and will grow over the rest of the century as the atmosphere and oceans continue to warm, what further sources of funds could be established so that such countries do not have to rely on uncertain annual appropriations from developed countries that are themselves facing increasingly severe climate adaptation needs? And how could such funds, if identified, be best used to leverage private investment and encourage responsible adaptation planning by countries seeking such assistance but lacking the institutional controls to use it honestly and effectively?

Options

Here are some options perhaps worth consideration by the president and his climate advisors. Many of them would require some form of congressional action to fully implement, but even that might prove politically acceptable if presented in the context of an international accord that includes the E.U., Russia, China, India, Brazil, South Africa and other emerging economies, does not constrict U.S. business and carries out our existing obligations under the Framework Convention.

World Bank Adaptation Loans. The United States already contributes substantially to the World Bank. That assistance could be augmented by funds earmarked specifically for the U.N.’s new Climate Adaptation Fund. That would not eliminate the need for periodic additional contributions to the bank for that purpose, but would at least utilize an existing and reasonably acceptable program that includes significant U.S. participation.

Adaptation Insurance. Both an international insurance fund or a series of privately operated insurance programs have drawn some attention as a way of helping municipalities or provincial governments deal with extreme storms, floods, droughts and crop failures. One problem with this approach, of course, is that few municipalities or provinces can afford to purchase insurance for the massive amounts required to protect against large-scale crop failures, floods or the need to relocate whole communities or rebuild a city’s infrastructure. International assistance in the form of either premium subsidies or reinsurance for the private carriers writing such policies could play an important role in helping fund recovery efforts.

Insurance alone is unlikely to pay for the major adaptation investments required to avoid or reduce these risks initially. Nevertheless, an internationally assisted insurance program that required local governments seeking coverage to put in place well-developed adaptation plans, including appropriately staffed institutions, before disaster strikes would make both environmental and economic sense if part of a broad-scale international adaptation accord.

International Carbon Charges. Although domestic carbon taxes are regarded as anathema in the United States (and, more recently, in France and Australia), imposing user charges on high-GHG emitting international service providers such as airlines and cargo ships may prove feasible in the context of an international agreement to implement the Framework Convention. Congress objected strongly to the E.U.’s earlier attempt to impose carbon charges on commercial flights into, out of and within Europe, forcing the E.U. to postpone those charges until an international agreement could be forged for future years.

While these initial steps fall far short of a reliable revenue source for climate adaptation, it would be equitable to impose on international passengers (and shippers) at least some of the costs of financing adaptation in developing countries. Over time, such charges (which could also be paid into the U.N.’s Climate Adaptation Fund) could provide a growing and reliable source of money for qualifying adaptation programs without the need for recurring domestic appropriations.

A similar charge on international financial transactions has been discussed ever since the Copenhagen conference in 2009 but has not yet been implemented. It too would be both equitable and effective in funding the Adaptation Fund and would hardly affect international financial markets. Indeed, in the long run the health of those markets could be significantly affected by the widespread failure of developing countries to manage climate impacts.

‘Excess GHG Emissions’ Charges. Although Levi’s prediction that neither the United States, China nor India would accept an absolute cap on its GHG emissions has proven accurate, it does not follow that the principal emitters of GHG cannot agree on what might be called a “soft cap” on such emissions. If, for example, the United States, the E.U., Russia, India, China, Brazil and South Africa were to agree on “target GHG reductions” by 2020 and further reductions by 2030, 2040 and 2050, they might also agree that any party failing to meet such targets would simply pay into the Adaptation Fund a small percentage of gross domestic product (GDP) reflecting, in part, the economic growth that was made possible by those excess emissions. This would not limit a nation’s ability to expand its economy as it wishes but would require it to help fund the additional adaptation measures required by the emissions associated with that growth.

None of these approaches to climate adaptation will be easy or avoid entirely the need for some congressional approval. Nevertheless, a sustained effort by Obama and his foreign counterparts to address the need for adaptation assistance would have a better chance of success than past efforts simply to restrict U.S. economic activity associated with GHG emissions. To succeed, however, the president does need to stress to the American people what so many others around the world already know—that the United States cannot remain immune from the social, economic, political, and national security implications of a world reeling from a rapidly changing climate.


Stephen L. Kass is a partner and co-director of the environmental practice group at Carter Ledyard & Milburn and an adjunct professor at Brooklyn Law School and NYU’s Center for Global Affairs.

Reprinted with permission from the September 16, 2014 edition of the New York Law Journal © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.


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