Academic journal article Duke Environmental Law & Policy Forum

The Importance of Being Factual: The U.S., China, and the Future of the Kyoto Protocol

Academic journal article Duke Environmental Law & Policy Forum

The Importance of Being Factual: The U.S., China, and the Future of the Kyoto Protocol

Article excerpt

Table of Contents  Introduction  I. Theorists' Assumption II. The Treaty and its Market   A. "Carbon Credit"--Concept and Background for the Study   B. Powers of Attorney and Project Stages     1. Registered Powers of Attorney     2. Project Phases III. The China Argument--Fact or Myth?   A. China's Share of the Global Market   B. Who Owns China's Credits?     1. Methodology     2. The Results     3. A Second Test     4. Response to Possible Objections IV. Theoretical Implications Conclusion Appendix 1: Complete List of Countries with Registered Projects (represented in Figures 6 and 6A) Appendix 2: Complete List of Power of Attorney Holders 

INTRODUCTION

The Doha round of climate negotiations in December 2012 produced little results, in no small measure because of the United States' concerns. (1) Despite the risk of incalculable harms and consequences to life and livelihood posed by the rise of greenhouse gas emissions, the United States is reluctant to sign an emissions accord. (2) This is because the United States contends that emissions trading will entail an enormous and unfair wealth transfer from the United States to China, thus making what Professor Dan Farber calls the "China argument." (3)

In the scholarly literature, the case for and against the United States ratifying the Kyoto Protocol (4) is framed as a choice between justice theory and moral theory. Eric Posner and Cass Sunstein are examples of justice theorists in this area, (5) contending that the United States is not obligated to ratify the Kyoto Protocol under prevailing theories of justice because "[t]he Kyoto Protocol imposed no obligations on China, now the biggest emitter and placed heavy burdens on the United States." (6)

Professor Dan Farber responds to Posner and Sunstein's argument from justice theory (7) with an argument from moral theory. (8) Farber forcibly argues that the United States has a moral obligation to ratify the Kyoto Protocol, because of its wealth and history of significant past and continuing high level of greenhouse gas contributions. (9) This deontic response, of course, fails to answer the essentially instrumentalist argument that U.S. legal scholars and the U.S. government make regarding the Kyoto Protocol. (10)

Both justice and moral theorists proceed on the presumption that if the United States signs the Protocol, the economic consequences will be to transfer wealth from the United States to China. (11) To date, however, legal scholars have not examined actual data to determine whether this underlying assumption is rooted in fact. This Article is the first to examine whether the evidence supports the presumption--will vast sums of U.S. money drain into China, if the United States ratifies the Kyoto Protocol. This Article introduces evidence that casts serious doubts on this assumption.

The United States opposes the Kyoto Protocol because under the existing regime, the United States and China occupy very different positions and have dissimilar rights and obligations. On the one hand, if the United States ratifies the Kyoto Protocol, as an industrialized nation, the United States will become subject to legally binding emission reduction targets, which the United States fears that it will be unable to meet. China on the other hand, as a developing country, is encouraged, but not legally required, to limit its greenhouse gas emissions. (12) The Kyoto Protocol allows countries to register and earn "carbon credits" for activities that reduce greenhouse gas emissions. (13) Nations can "sell" their surplus credits to countries that have failed to meet their targets. China has no specific target, and has earned the maximum number of credits to date. (14) Therefore, the United States fears that it will not be able to meet its target specified in the Kyoto Protocol, and so, if it ratifies the Kyoto Protocol, it will be compelled to purchase carbon credits from China, the largest supplier; resulting in enormous wealth transfer from the United States to China. …

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