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Friday, November 16, 2012

Conference on “Global Climate Policy without the United States”

Summary.  A conference entitled “Global Climate Policy without the United States: Thinking the Unthinkable”, was held at Yale University Law School November 9-10, 2012.  After an opening talk detailing the worsening state of global warming already under way, several speakers dealt with frameworks and strategies that could bypass the stalemated international deliberations on global warming.  These include transnational actions involving fewer nations, and cooperation among nations, nongovernmental organizations and private corporations.  Additionally two talks addressed geoengineering, and the need to act cautiously if at all in implementing it.

Since the pace of greenhouse gas emissions is increasing, and the resulting warming of the planet grows accordingly, stratagems such as discussed in this conference should be pursued with all deliberate speed.  Avoiding the worsening effects of global warming may well rely on transnational and extra-governmental strategies such as these in pursuing mitigation and adaptation, unless and until a binding international agreement enters into force.

Introduction.  International negotiations toward an agreement on mitigating and adapting to global warming have been going on for many years under the United Nations Framework Convention on Climate Change (UNFCCC) without apparent progress.  Among the impediments has been the reluctance of the two major emitters of greenhouse gases (GHGs), the U. S. and China, to accommodate the viewpoint of the other side.  When the Kyoto Protocol was negotiated under the UNFCCC in 1997, all developing countries including China were excluded from coverage.  When the Protocol was presented to the U. S. Senate for ratification, the Senate decisively rejected it.  Among other reasons the debate cited the exclusion of developing countries while constraining the U. S. under its terms.  It was argued this would put the U. S. at a competitive disadvantage in international trade.  In the interim the U. S. Congress has repeatedly failed to pass domestic global warming legislation.  As a result, the U. S. currently has no legislated national policy governing mitigation of and adaptation to the worsening effects of increased average global temperatures due to greenhouse gas emissions.

A conference on this topic, entitled “Global Climate Policy without the United States: Thinking the Unthinkable”, was held at Yale University Law School November 9-10, 2012.  This post summarizes selected presentations to this conference immediately below (indented).  Then, in the Analysis section following the summary, the talks are considered against the perspective of the failure so far to reach a global agreement. 

Why Action on Global Warming is Needed.

Sir Robert Watson, Chair of the Intergovernmental Panel on Climate Change (IPCC) from 1997 to 2002, opened the conference with a dire characterization of the present climate situation.  Increased concentrations of man-made greenhouse gases (GHGs) and other atmospheric components that affect heat retention have already had effects across the globe on precipitation patterns, a rise in sea levels, and melting of the polar ice caps. 

The strongest change in global average temperature has occurred in the last 50 years, and is due to human activity.  Projections of further increases in surface temperature by 2100, depending on the details of the modeling employed, range from 1.5-7ºC (2.7-12.6ºF).  Warming is not uniform across the globe; it is stronger in polar latitudes than in the tropics, and affects land surfaces more than the oceans.  Dry areas are projected to become drier and wet areas to become wetter.

The present rate of rise of sea level is greater than the IPCC predicted in its report of 2001, due to thermal expansion of water, and to the increasing runoff from glacial melting.

Other serious effects on humanity include loss of biological diversity, ocean acidification with attendant killing of coral reefs (which nurture much of the marine food chain that humans depend on), a decrease in agricultural productivity, and an increase in infectious disease rates.

The IPCC adopted the standard that world climate negotiations should strive to constrain the overall increase in global average temperature to 2ºC (3.6ºF) in order to keep warming from causing excessive damage to human life.  Sir Robert pointed out that because of projected GHG emissions and their attendant temperature increases, this constraint will be breached.  The annual meetings under the UNFCCC, most recently in Copenhagen, Cancun and Durban, have made scant progress toward reaching agreement on emissions abatement.

Sir Robert concluded by listing the mitigation strategies that need to be pursued: development of carbon capture and storage technology (if successful, this would allow continued use of fossil fuels), development of biofuels (this will alleviate the dependence on fossil fuels), setting a price on carbon to deter use, and altering our behavior patterns to avoid use of fossil fuels.  He was hesitant about any role for geoengineering (see below) because there was not enough known about its capabilities and risks. 

Transnational and Public-Private Cooperation in Global Climate Initiatives

Robert Howse, Professor of International Law at New York University, spoke on transnational actions that can be taken in the absence of a binding international climate agreement.  In place of a broad mitigation agreement nations can dispense cross-border emissions allowances imposing cross-border taxes.  An example is that, under the European Union’s Emissions Trading Scheme, any airplane landing in an EU country has to purchase allowances covering the fuel used in the flight. (Coincidentally, the New York Times reported on November 15, 2012 that this requirement is being postponed for one year in view of strong opposition from non-European countries.)  Prof. Howse cited a court case from the period before the WTO affirming such taxes, since the harms are inflicted on a global commons, and are not restricted to the offending country.

Dan Farber, Professor of Law at University of California, Berkeley, pointed out that rather than “without the U. S.” in the title of the conference, it could be “without Congress”.  He noted that administratively the U. S. Environmental Protection Agency is regulating emissions under the Clean Air Act, having effects at the international level.  He also noted the regional compacts in California and the northeastern states’ Regional Greenhouse Gas Initiative.  Within the U. S., such compacts face the problem of carbon leakage by purchases of energy from, or goods made with energy provided in, other states.  The U. S. Constitution prohibits taxation across state boundaries.  Ultimately there is no substitute for a legislated federal emissions framework and for a formal agreement on international emissions abatement.

Richard Stewart, Professor of Law at New York University, recognized that to date formal, international negotiations have failed to produce an agreement on global warming.  He cited the reluctance of China, and the levels and timing of commitments sought to be made as contributing causes. 

He suggests that instead of “mega” negotiations, which emphasize the dominance of nation-states, bottom-up efforts be made, developing trans-national climate regimes involving a smaller number of actors.  Ways of proceeding might include 1) private agreements among companies, non-governmental organizations and governments, working on goals such as industrial development and carbon capture and storage; 2) linkage and leverage agreements that could proceed even without the U. S. and China; and 3) building blocks that start with a small number of actors focusing on limited goals such as marine transport, or the European Union’s mitigation program.  Prof. Stewart believes such alternatives could pave the way toward developing trust among nations and lead toward an international treaty that is the ultimate objective.

Michael Gerrard, a Professor at Columbia Law School, offered perspectives on the previous three talks; these echoed as well many of Robert Watson’s thoughts.  First, the goal of limiting warming to a 2ºC limit is unattainable.  Second, emissions from China alone currently and in coming decades, will be largely responsible for the increase in atmospheric GHG levels.  Furthermore fossil fuel use is likely to increase radically as other developing countries, and currently impoverished countries, undergo economic growth; this projection includes the expected increase in the world’s population over coming decades.  Third, in the U. S., there is minimal prospect politically for abating GHG emissions because Congress has rejected putting a price on carbon.  According to Prof. Gerrard, 46% of Americans are anti-science, which hinders spreading an appreciation of the science underlying global warming.  He notes that global warming is clearly occurring already.  For these reasons he advocates promoting adaptation to warming far more intensively than has occurred to date.  He compares this with the costs incurred by society by inaction.
Kenneth Abbott, Professor at the Sandra Day O’Connor College of Law, Arizona State University, gave a talk that was similar in theme to that of Prof. Stewart, above.  Prof. Abbott recognizes the failure of the international framework to make progress on an agreement to combat global warming.  He noted that Canada withdrew from the Kyoto Protocol, and that Japan and other nations have opposed extending it beyond 2012.  Instead, he proposes bypassing states, promoting actions by governmental and nongovernmental actors within states.  These groups would establish transnational advocacy activities.  Prof. Abbott models these by a pyramid, as shown: 

Prof. Abbott populated this pyramid with about 70 examples of organizations arrayed according to their characteristics; each could establish bilateral or multilateral associations with others.  He envisions that these activities would involve entrepreneurs and officials that catalyze and support unconventional advances, building transnational liaisons that combat global warming.


Two speakers addressed the controversial topic of geoengineering: Edward Parson, Professor at UCLA School of Law, and Jane Long, Associate Director at Large, Lawrence Livermore National Laboratory.  The terms “geoengineering” or “climate engineering” encompass several technologies.  These talks focused in particular on injecting white aerosols into the stratosphere that would remain airborne for several years and act to reflect sunlight back into space.  Prof. Parsons noted that aerosol-based geoengineering is fast, cheap and imperfect.  Rocket-based injection of aerosols is easily accomplished, and would probably cost a few billion dollars a year.  Yet it is imperfect because its effects are uncharacterized.  Geoengineering raises several concerns related to the global reach of the technology.  First, if successful it could create the moral hazard of relieving the incentive among humanity to mitigate GHG emissions.  Second, in spite of its universal effect around the globe, it could be accomplished unilaterally by a state acting alone, thereby affecting other states without their consent.  Currently no aspect of international law covers such activities.  Because mitigation and geoengineering act in complementary fashions, Prof. Parsons suggests proceeding simultaneously on mitigation activities coupled with research on geoengineering.

Dr. Long likewise believes that geoengineering cannot be a substitute for mitigation activities.  She described policy activities within the U. S.  She recommends setting up “protogovernance” to deal with geoengineering policy, which should be a new advisory commission established within the federal government.  It should be in the President’s Office of Science and Technology Policy, since no other agency is appropriate.  Currently there is no policy guiding research on geoengineering, since most work originates as investigator-initiated projects.  Additionally, there are private groups considering the deployment of geoengineering, such as a pilot project in the Eastern Pacific.  Some of these are offered as having only regional rather than global effects.  


Recent UNFCCC annual conferences, including those in Copenhagen (2009), Cancun (2010) and Durban (2011), have striven unsuccessfully to supplant the Kyoto Protocol on its expiration at the end of 2012.  These involve the 193 member states of the United Nations.  The Cancun Agreement established binding objectives and subgroups to advance aspects of mitigation and adaptation.  At the Durban conference it became clear that agreement on a global warming treaty would be seriously delayed.  The delay represents a serious setback to limiting atmospheric GHG levels, and clearly is one factor underlying the observation by speakers at the Yale conference that the goal of constraining global average temperature rise to 2ºC cannot be achieved.

The extent of increase of the global average temperature is determined by the total accumulated level of GHGs, not by the annual rate of emissions.  Since the principal GHG, carbon dioxide, persists in the atmosphere for at least 100 years (and probably much longer), each year humanity emits more GHGs into the air raises the total accumulated level of GHGs, thereby raising the global average temperature higher and higher.  The only way to stabilize the global average temperature is to reduce the annual emission rate to near zero, or to sequester GHG emissions underground.  These considerations lead to the conclusion that the delay enshrined in the Durban Platform will produce irreversibly higher global average temperatures than would have been obtained had an international agreement been successfully negotiated earlier.

Since the U. S. and China, the two highest emitters of GHGs, approach these negotiations with seemingly irreconcilable differences, both of them may be considered to be responsible for the historical failure to reach agreement.  The theme of the Yale conference was to examine paths that can be taken that skirt the necessity of involving the U. S. government.  In view of the strategies evinced in the conference, the title might also have included the phrase “[without] China” as well.

The speakers at “Global Climate Policy without the United States: Thinking the Unthinkable” offered a variety of ways for actors other than sovereign nations to undertake initiatives that advance the objective of constraining global temperature rise.  Some of these involve regional transnational regulatory regimes.  Others, such as those within the U. S., involve states or provinces which are smaller entities typically not having authority to act internationally.  Still others envision development of extra-governmental consortiums among nations or states/provinces, non-governmental organizations and private corporations to advance global warming initiatives.  Only in considering geoengineering did speakers rein in their proposals because of the many risks involved.

This conference emphasized the dire need to stabilize global average temperature at as low a level as possible in order to minimize the harms to human society already happening.  These harms are destined to become worse absent meaningful action.  Many innovative stratagems, involving state actors, nongovernmental organizations and private enterprise, offer the prospect of making meaningful progress even without the participation of the two largest emitting nations, China and the U. S.  Speakers at the conference encouraged these efforts, including both mitigation and adaptation, in order to help humanity meet the global climate crisis.
  © 2012 Henry Auer

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