Opinionated Commentary on Law, Politics, Economics, and More from Michael Dorf, Neil Buchanan, Eric Segall, and (Occasionally) Others
Monday, December 21, 2009
A ‘Political Agreement’ in a Legalistic World
With the fever of the climate talks behind us and the new "Copenhagen Accord" on the books, we should take stock of law’s role in this unfolding drama and of the progress made since 1992—the year the U.N. created the Framework Convention on Climate Change (UNFCCC).
1. "Taking Note" of a "Political Agreement"
The parties that negotiated Copenhagen's splash "accord" — Brazil, India, South Africa, China and the US (BISACUS) — agreed to cut "their emissions individually or jointly by at least 80 per cent by 2050." Of course: (1) the exact denominator was omitted from the commitment and that could change the pledged cuts dramatically; (2) 2050 is a long way off; and (3) this deal was struck without the participation of the vast majority of UNFCCC’s Conference of the Parties (COP). Most of the COP, indeed, was excluded from the negotiation of this 'political agreement' because, in the principals' views, the core of any real deal depended on only a handful of parties.
Put off indefinitely was a meeting where the UNFCCC COP as a whole would establish hard numbers and binding terms spelling out tangible actions in the foreseeable future according to a final text. For that, international law will have to wait.
Many in the COP majority objected vehemently to being excluded from the negotiation of the accord. (Global democracy has always been more ideal than real.) Perhaps as an inducement, richer nations pledged $30 billion in ‘fast-track’ finance for climate change "adaptation" from 2010-2012 (reportedly $11B from Japan, $10.6B from the EU and $3.6B from the U.S.) and to "jointly mobilis[e]" $100 billion in total by 2020.
The advantages of this deal for the rest of the COP weren't lost on the U.N. Secretary General (who got most of these so-called 'G-77' participants to see all of what they were about to scuttle and prevented them from doing so). Now these other parties have about four weeks to make their own pledges as they "associate" themselves with the BISACUS accord — a process that will tell us little about the domestic support for the accord within the BISACUS nations themselves.
Thus, at its close, COP 15 agreed only to "take note" of a loosely defined and irreducibly tentative accord. The legal significance of this 'taking note' is now the subject of real debate among international lawyers. (To whom my response is: the UNFCCC and COP have never established procedural standards for collective decisions precisely because they've always been so polarized; what possible good reason could there be to seek the undoing of this tiny step forward?)
2. Twelve Paragraphs
It took just 12 paragraphs to state BISACUS's common ground in Copenhagen. In some sense, it proves the force of international law that the parties didn't negotiate a treaty with tangible, numeric commitments because, if such commitments weren't powerfully binding, the participants' incentives all would have compelled exactly that result.
Of course, many observers were insulted by the modesty of the progress. In truth, though, we still don't agree how dramatically or how uniformly we should respond to climate change globally. Should we inhibit the economic growth of the poorest economies? Of only the largest two? Should we harness the US and EU economies with energy taxes, perhaps acknowledging our disproportionate contribution to today’s atmospheric baselines? I know a lot of tech hopefuls who say we will invent our way out with 'presto' technologies that supply the kind of energy we enjoy today without the GHGs. What little I know about technology's evolutionary tendencies, though, leaves me a lot less sanguine.
An agreement to agree — while also voicing a common sense of urgency — was probably the best possible outcome in Copenhagen. That is, unless one naïvely assumed that the officials assembled could return to their countries and simply impose emissions caps on billions of people. The rise of constitutional democracy and legal protections for human rights — and, thus, of disagreement and the dispersal of political power — precluded exactly that going-in assumption. (It was never going to be the Congress of Vienna.)
So perhaps this accord will dissolve a Catch-22 that has become all too evident lately: no international agreement without domestic commitments and no domestic legislation without international commitments. But I doubt it. The diversity of stakes and of lunatic fringes in the US will probably still block meaningful cuts through broad scale legislation. If recent history is a guide, our Senate is capable of vetoing pretty much anything.
3. Acting Without Knowing
Conservation today is always about acting without good knowledge—taking effective actions against threats before their causes and/or scope are fully understood. COP 15 was a glimpse of that future when it unfolds on a global stage. Meaningful, practicable actions of global scale are too open to plausible critiques to command the support they need to succeed. But consider the following estimates of probable global annual temperature gains (C) from increasing CO2 and equivalent concentrations:
—John Holdren, Lecture, Meeting the Climate Change Challenge.
To level off around 450ppm (where 2° is still a good possibility), global emissions must probably peak by 2020 at the latest and decline steadily after that. And a future where the 'Copenhagen Accord' governed the world economy has been credibly associated with about 550 ppm. There aren't any reliable projections for a world that much warmer, although paleoclimatic evidence suggests that a global increase of 4° corresponds to a time when reptiles inhabited Greenland and sea levels were, well, a lot higher.
There may be a daunting hill, but we don’t know how to climb it or who we are climbing it for. Future generations — the unborn, most of whom are in far away places — have the most to gain from our discipline today. As Parfit and others have so famously argued, though, unborn people need never be born and this tends to complicate arguments which appeal to our mercy towards such people. For all the many reasons explored in Neil’s excellent symposium last year, net positive leverage on today's political actors is extremely hard to get when the weight used is the suffering of future people.
4. "Common But Differentiated Responsibilities"
Today's climate change scholars talk of "common but differentiated responsibilities" as if this notion has any intelligible content. Even if we could stipulate the consequences of our emissions with perfect certainty, the planet would still be twisted in most of the knots we have now because we disagree about the applicable norms of climate change. Should it be about consequences or culpability? Are "we" Americans to blame for America's generations of industrialization? The NYT’s Andrew Revkin has explored this underlying tension diligently. A striking illustration of our political predicament is a world map of the disparate emissions futures, emissions histories, and relative populations. They’ve all been combining to anchor our negotiations to the bottom of the ocean.
None of this is to deny the need for bold action or to suggest we are too late. We don't have a moment to spare while broad-scaled actions are being planned and coordinated, though. We must put any experiment with manageable opportunity costs into action — from carbon footprint labeling to carbonless energy subsidies to X Prizes to "entitlement reform" to changing the social meaning of consumption to the deployment of existing energy efficiency technologies – and thousands more. The single worst mistake we have been making is thinking that a "legally binding" treaty will change the world. The world is going to have to change first.
Posted by Jamie Colburn