A Way through the Impasse in U.S. Climate Change Legislation: A GHG Tax That Possesses Political and Administrative Feasibility and Conforms to International Law

Article excerpt

Discussions in Congress about what is generally known as Climate Change have morphed into a "third rail" of politics--where engaging such a topic can seem like an admission that massive inter-governmental cooperation and drastic cutbacks in energy usage are necessary. Unfortunately, that fear has stifled the conversation about creative solutions--because without a problem, who needs a solution?

This Comment posits a novel, congressional response to Climate Change with three particular aims: political feasibility, administrative feasibility, and conformity with international law. More specifically, this proposal uniquely operates by taxing producers of "carbon-intensive goods," including importers, through two newly-created entities and procedures: the Climate Change Reduction Committee ("CCRC") sets the requisite percentage cutbacks for the relevant categories of producers and the Intergovernmental Panel on Climate Change ("IPCC") exacts penalties on imported goods that fail to comport with the CCRC's mandates. Notably, the nine-member IPCC would reserve five seats for randomly chosen WTO Members while retaining four seats for United States officials. And, voila! The United States has a partial solution to its looming national deficit through a significant new revenue source.

Why not cap and trade? This Comment concludes that the governmental revenue lost, the utter dearth of any persuasive political arguments surrounding it, the additional, inherent regulatory complexities, the high probability of "cap busting," and the likely failure to comport with international law makes a cap and trade regime an inferior alternative.

I.   INTRODUCTION
     A. The Proposal
     B. Why not Cap and Trade?

II.  THIS GHG TAX CONFORMS TO INTERNATIONAL
     LAW
     A. GATT Article I
     B. GATT Article II
     C. GATT Article III
     D. GATT Article XI
     E. GATT Article XX
        1. GATT Article XX Paragraph (g) Analysis
        2. GATT Article XX Chapeau
        3. GATT Article XX Paragraph (b)
           Analysis
     F. Agreement on Subsidies and Countervailing
        Measures (ASCM)
     G. Technical Barriers on Trade ("TBT")

III. Critiques
     A. The Political Feasibility of a GHG Tax
     B. Administrative Feasibility of a GHG Tax
     C. Cap and Trade: A Flawed Alternative to a
        GHG Tax

IV. Conclusion

I. INTRODUCTION

Most political campaign advertisements featuring guns refer to a candidate's position regarding the Second Amendment. Governor Joe Manchin, the freshman senator from West Virginia, found another creative and jarring use for a weapon: literally shooting through the likeness of the "Democrats' now defunct cap-and-trade bill." (1) More significantly, his use of that ad--and more specifically, his opposition to a cap and trade bill--is widely credited with helping him win as a democratic candidate in a year when Democrats lost big nationwide. (2) Most relevantly for the response to climate change, the sentiment encapsulated by that television commercial demonstrated a strong aversion to an energy policy resulting in raised prices--or a hidden tax. Thus the challenge: construct legislation that necessarily raises energy prices, in order to reduce greenhouse gas emissions, while also convincing the democratic polity that higher prices--and the resulting lower taxes through increased government revenues!--are a good thing.

While political feasibility dominates the discourse surrounding U.S. climate change legislation, upholding international treaty obligations does not receive a level of attention corresponding to its importance for resolving global climate change. This Comment will focus primarily on the latter issue precisely because achieving a significant net reduction in greenhouse gas ("GHG") emissions cannot occur without international support. Acting in spite of international treaties, such as the General Agreement on Tariffs and Trade ("GATT"), ignores potential consequences such as World Trade Organization ("WTO") sanctioned trade retaliation and foments an international reluctance to craft a future multi-national agreement. …