Ratification of Kyoto Aside: How International Law and Market Uncertainty Obviate the Current U.S. Approach to Climate Change Emissions

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TABLE OF CONTENTS

INTRODUCTION
  I. AN INTRODUCTION TO GLOBAL CLIMATE CHANGE
     A. Critics of Anthropogenic Climate Change
     B. Response to the Critics
 II. INTERNATIONAL EFFORTS TO ADDRESS GLOBAL
     CLIMATE CHANGE
     A. The Stockholm Declaration and the
        Framework Convention
     B. The Kyoto Protocol
        1. The Free-Rider Problem
        2. The United States Reacts to Kyoto
III. ARE EMISSIONS REDUCTIONS BINDING UNDER
     INTERNATIONAL LAW?
     A. Obligations Under the UNFCCC
     B. Multilateral Treaties as Customary
        International Law
 IV. IF NOT KYOTO, THEN WHAT?
     DOMESTIC ALTERNATIVES
     A. Regulation Under Existing Federal Law:
        Clean Air Act and New Source Review
     B. Massachusetts v. EPA
     C. State-Based Initiatives
     D. Pending Federal Legislation
  V. THE MARKET'S DOUBLE-EDGED SWORD:
     CONCERNS FOR THE ECONOMY IN THE
     ABSENCE OF REGULATION
  CONCLUSION

"[A] relatively small investment today is far wiser than spending vast amounts in the future to restore ecosystems, agriculture and infrastructure.... [T]he time to act on carbon is now." (1)

INTRODUCTION

On October 14, 2004, a coalition of thirty U.S. business, nonprofit, and energy policy organizations wrote a letter to President Bush expressing concern that the American economy will ultimately suffer as a result of the United States rejecting the Kyoto Protocol. (2) The organizations lament that they and others "'will be cut out of the new carbon trading markets'" set up in London and that "'incentives to install renewables and other clean technologies in the treaty will give companies in Europe and elsewhere a financial advantage in joint trading agreements with former Eastern Bloc and developing countries.'" (3)

Approximately one year earlier President Bush received a different letter regarding global climate change, this time sent by a nationwide coalition of scientists. (4) The letter confirmed "the consensus opinion of the scientific community" as one fully supporting the findings by the Intergovernmental Panel on Climate Change (IPCC) and the National Research Council (NRC). (5) Anthropogenic climate change is underway, and "[e]ven under mid-range emissions assumptions, the projected warming could cause substantial impacts in different regions of the United States, including an increased likelihood of heavy and extreme precipitation events, exacerbated drought, and sea level rise." (6) The letter highlighted that late-twentieth-century climate warming fails to appear on computer simulations that include only natural climate forces like volcanic emissions and solar activity, but does appear on computer simulations that include anthropogenic greenhouse gas emissions. (7)

Given the broad scientific consensus regarding human-induced climate change and the belief among some sectors of the U.S. economy that engaging in an international effort to reduce climate change will benefit both the environment and the economy, what is stopping the United States from leading the world in this effort? The answer to this quandary may prove more complicated than it appears. Uncertainty as to what is required by law and conflicting policy preferences over emissions regulations have resulted in a haphazard national approach to anthropogenic climate change. This Note argues that from a legal perspective the United States is, and will remain, out of compliance with its international legal obligations until good-faith efforts toward reducing domestic greenhouse gas emissions are administered. In the interim, stalling such an effort may actually prove harmful to U.S. businesses, which are ill-positioned to compete in a carbon-constrained world.

Part I introduces the reader to mainstream scientific analyses of global climate change, as well as counterarguments regarding the impact of greenhouse gas emissions. Part II studies international efforts to address climate change, examines U. …