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adjudicating climate change
State, National, and International Approaches

Courts have emerged as a crucial battleground in efforts to regulate climate change.
Over the past several years, tribunals at every level of government around the world have
seen claims regarding greenhouse gas emissions and impacts. These cases rely on diverse
legal theories, but all focus on government regulation of climate change or the actions
of major corporate emitters. This book explores climate actions in state and national
courts, as well as international tribunals, in order to explain their regulatory signi¬cance.
It demonstrates the role that these cases play in broader debates over climate policy and
argues that they serve as an important force in pressuring governments and emitters to
address this crucial problem. As law ¬rms and public interest organizations increasingly
develop climate practice areas, this book serves as a crucial resource for practitioners,
policymakers, and academics.

William C. G. Burns is the Class of ™46 Visiting Professor with the Center for Envi-
ronmental Studies at Williams College. Most recently, Dr. Burns was a Senior Fellow
with the Center for Global Law & Policy at the Santa Clara University School of
Law. Additionally, he serves as editor in chief of the Journal of International Wildlife
Law & Policy and cochair of the International Environmental Law Committee of the
American Branch of the International Law Association. He received his B.S. in political
science from Bradley University and his Ph.D. in international law from the University of
Wales “ Cardiff School of Law. Prior to his academic career, he spent more than twenty
years in the nongovernmental sector, including as executive director of the GreenLife
Society/Paci¬c Center for International Studies, a think tank that focused on implemen-
tation of international wildlife law. He has published more than 70 articles in a range of
law, policy, and science journals, including the Georgetown International Environmental
Law Review, the Journal of the American Medical Association, and Global Change, and
he has served as the coeditor of three books.

Hari M. Osofsky is an associate professor at Washington and Lee University School
of Law. She received her B.A. and J.D. from Yale University. She currently is a Ph.D.
student in the Department of Geography at the University of Oregon. Her articles
have been published in a variety of journals, including the Washington University
Law Quarterly, Villanova Law Review, Chicago Journal of International Law, Stanford
Environmental Law Journal, Stanford Journal of International Law, Virginia Journal
of International Law, and Yale Journal of International Law. Her advocacy work
has included assisting with Earthjustice™s annual submissions to the U.N. Human Rights
Commission on environmental rights and with the Inuit Circumpolar Conference™s
petition on climate change to the Inter-American Commission on Human Rights.
She also has taught climate change litigation courses that assisted the Southern
Environmental Law Center and Western Environmental Law Center.
Adjudicating Climate Change
state, national, and international approaches
Edited by
WILLIAM C. G. BURNS
Williams College

HARI M. OSOFSKY
Washington and Lee University
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521879705
© Cambridge University Press 2009


This publication is in copyright. Subject to statutory exception and to the
provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2009


ISBN-13 978-0-511-59636-0 eBook (NetLibrary)

ISBN-13 978-0-521-87970-5 Hardback




Cambridge University Press has no responsibility for the persistence or accuracy
of urls for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Information regarding prices, travel timetables, and other factual information
given in this work are correct at the time of ¬rst printing, but Cambridge
University Press does not guarantee the accuracy of such information thereafter.
Contents




page vii
Foreword
Peter E. Roderick
ix
Acknowledgments

Overview: The Exigencies That Drive Potential Causes
1
of Action for Climate Change 1
William C. G. Burns and Hari M. Osofsky

PART I: SUBNATIONAL CASE STUDIES

State Action as Political Voice in Climate Change Policy:
2
A Case Study of the Minnesota Environmental Cost
Valuation Regulation 31
Stephanie Stern

Litigating Climate Change at the Coal Mine
3 48
Lesley K. McAllister

Cities, Land Use, and the Global Commons: Genesis
4
and the Urban Politics of Climate Change 72
Katherine Trisolini and Jonathan Zasloff

Atmospheric Trust Litigation
5 99
Mary Christina Wood

PART II: NATIONAL CASE STUDIES

The Intersection of Scale, Science, and Law in
6
Massachusetts v. EPA 129
Hari M. Osofsky




v
vi Contents


Biodiversity, Global Warming, and the United States
7
Endangered Species Act: The Role of Domestic Wildlife
Law in Addressing Greenhouse Gas Emissions 145
Brendan R. Cummings and Kassie R. Siegel

An Emerging Human Right to Security from Climate
8
Change: The Case Against Gas Flaring in Nigeria 173
Amy Sinden

Tort-Based Climate Litigation
9 193
David A. Grossman

Insurance and Climate Change Litigation
10 230
Jeffrey W. Stempel

PART III: SUPRANATIONAL CASE STUDIES

The World Heritage Convention and Climate Change:
11
The Case for a Climate-Change Mitigation Strategy beyond
the Kyoto Protocol 255
Erica J. Thorson

The Inuit Petition as a Bridge? Beyond Dialectics of
12
Climate Change and Indigenous Peoples™ Rights 272
Hari M. Osofsky

Bringing Climate Change Claims to the Accountability
13
Mechanisms of International Financial Institutions 292
Jennifer Gleason and David B. Hunter

Potential Causes of Action for Climate Change Impacts
14
under the United Nations Fish Stocks Agreement 314
William C. G. Burns

Climate Change Litigation: Opening the Door to the
15
International Court of Justice 334
Andrew Strauss

The Implications of Climate Change Litigation:
16
Litigation for International Environmental Law-Making 357
David B. Hunter

Conclusion: Adjudicating Climate Change across Scales
17 375
Hari M. Osofsky

Index 387
Foreword
Peter E. Roderick—




The world™s political process has been slow to react to the serious, and potentially
catastrophic, consequences for life on our planet that ¬‚ow from the burning of fossil
fuel. In one sense, this is understandable: turning around the global energy base
is not a simple task. In another sense, it is inexcusable: a myopic failure to act in
the face of clear scienti¬c evidence. And among those who have failed to act, until
recently, I include the legal profession. But as the pages of this book demonstrate,
the long slumber of the lawyers is over.
I was one of those fast asleep. In the late 1980s, long after scientists had been
researching the problem, but with global awareness of climate change emerging, I
was horri¬ed to realize that as a legal adviser to Shell I was facilitating extraction
of the hydrocarbons at the heart of the problem. The obvious answer was to leave
the fossil fuel in the ground and to begin the arduous, yet critical, task of “de-
carbonizing” the world™s economy. But I was naive to imagine that hope for such a
turnaround would start with the very corporations whose legal structure drives their
slavish servicing of the “demands” of the stock exchange.
It took me quite a while though to awaken fully. It was in 2001 that the Intergov-
ernmental Panel on Climate Change published its ¬nding that most of the observed
warming at the Earth™s surface over the past ¬fty years was likely to have been due to
human activities. If the world™s scientists were saying that human activities had led
to temperature increases, with the qualitative nature of the effects well understood,
then it was time for the courts to have something to say about it. This was the spur for
Roda Verheyen and me to begin thinking about enforcement of the law around the
world in order to combat climate change. This book tracks much of the development
of climate change law in the ¬ve years since we scribbled down our thoughts, and
spilt our wine, on the tablecloth of a North London restaurant. Alas, the restaurant
is no more, but the development of climate change jurisprudence has moved on
apace.
What is to be made of this jurisprudence? Its origin lies in the inadequate political
and corporate response to the planet™s biggest threat. Its content is a varied, innovative,

— Co-Director, Climate Justice Programme, http://www.climatelaw.org/.

vii
viii Foreword


barely formed mix across a spectrum of legal theories in domestic and international
forums addressing both the causes and effects of climate change. Its results, to date,
in purely legal and policy terms, include positive outcomes in the United States (for
example, under the National Environment Policy Act, the Clean Air Act, and the
Endangered Species Act), in Australia (on land use planning decisions in respect of
coal mines), in Nigeria (on human rights violations from gas ¬‚aring), in Germany
(on access to information on export credits), and at the UNESCO World Heritage
Committee (adopting a world heritage and climate change strategy in July 2006);
while negative judgements in the United States are under appeal with the support
of some of the world™s top climate scientists. Its future can be expected to include
more damages cases, such as the one ¬led by the state of California against the auto-
mobile companies in September 2006, and if, as I hope, the May 2006 submission
by the Group of 77 and China to the UNFCCC/Kyoto Protocol Compliance Com-
mittee concerning the noncompliance by ¬fteen Annex I countries with Article 3.1
of the Kyoto Protocol is a sign of the increased willingness of developing countries
to hold the developed world to account, then perhaps the future will see some of the
public international law avenues discussed in this book playing a more important
role than they have so far.
The implications of the use of petitions and lawsuits to combat climate change
should be judged by whether signi¬cant reductions in greenhouse gas emissions, and
compensation for those who suffer from climate change damage, ensue. Although
the effects of climate change are already upon us, I believe it is still possible to avoid
the more serious consequences, but only if we make the right choices over the next
few years. Until those choices are made, enforcing the law must play its full role.
Of course, going to court isn™t the answer. It is rarely better in my experience
than the lesser of two evils. The substance and procedure of the law usually favours
the rich. Elitist language and a mismatch of resources too often shut out those who
could bene¬t most from justice. And far better that political and corporate leaders
would make decisions in the interests of life on the planet without being forced to
do so.
But worse would be to allow these pervasive and entrenched imperfections to
determine the outcome of the human response to climate change. The individuals,
organizations, government entities, and lawyers who have brought these cases, sev-
eral of whom have written the chapters of this book, are among those who are not
prepared to do that, and I salute them. The ultimate justi¬cation for law is that it
offers the possibility of resolving disputes without us killing each other. And there
can be no bigger dispute than over the future of our planet.
Acknowledgments




This book has been vastly improved by the contributions of many people, and
we would like to express our gratitude for their insights and efforts. Our editor
at Cambridge, John Berger, has patiently shepherded this book through its many
iterations as the landscape of climate change litigation evolved. We tremendously
appreciate his supportiveness and assistance. Stefanie Herrington, who worked with
us throughout her three years as a student at the University of Oregon School of
Law, copyedited all of the chapters of the book. Her meticulousness has eliminated
countless errors from the book and has made it read much more consistently. We
also thank Shana Meyer and Mary Cadette, both project managers at Aptara, for
their ¬‚exibility and contributions to the book™s formatting and uniformity.
The chapter authors, all busy academics or practitioners deeply involved with this
litigation, provided the thoughtful analyses of litigation that made this book possible.
We particularly appreciate their patience and thoughtfulness as we updated the book
over the course of its production for major developments.
We both bene¬tted from the support of our academic institutions over the course
of this project. They provided crucial research support and helpful feedback that
made this book possible. In particular, Wil Burns would like to thank Santa Clara
University School of Law and the Monterey Institute of International Studies Depart-
ment of International Environmental Policy, and Hari Osofsky would like to thank
Washington and Lee University School of Law, University of Oregon School of Law
and Department of Geography, and Whittier Law School.
Last, but certainly not least, we are both deeply appreciative of the loving and
patient support of our families “ speci¬cally our partners, Tamar Meidav and Josh
Gitelson, and our children, Shira Meidav-Burns, Oz Gitelson, and Scarlet Gitelson “
over the course of this project. We are grateful for their tolerance of the many hours
we spent writing and editing, and for their hugs and smiles to remind us of what
really matters.




ix
adjudicating climate change
1

Overview: The Exigencies That Drive Potential Causes of
Action for Climate Change

William C. G. Burns— and Hari M. Osofsky†



The implications of the crystallizing scienti¬c understanding is that the planet is on the verge
of dramatic climate change. It is still possible to avoid the most deleterious effects, but only if
prompt actions are taken to stabilize global temperature close to its present value.1


INTRODUCTION

Over the course of the last few years, climate change litigation has been transformed
from a creative lawyering strategy to a major force in transnational regulatory gover-
nance of greenhouse gas emissions. This book traces that journey and looks ahead
to the future by considering a range of lawsuits and petitions ¬led in state, national,
and international tribunals, as well as some potential causes of action. These actions
cover an immense legal terrain but have in common their concern with more
effective regulation of greenhouse gas emissions.
This introductory chapter frames the contributions in this book. It ¬rst provides
an overview of climate change science, including both the current and the projected
global impacts of climate change; second, it assesses current institutional responses
to climate change and why they have been and likely will continue to be wholly
inadequate to confront the looming threat of climate change in this century and
beyond; third, it examines current efforts to open a new front to address climate
change and climate change litigation; and ¬nally, it provides a synopsis of the
chapters that follow.


— Class of ™46 Visiting Professor, Center for Environmental Studies, Williams College, Williamstown,
Massachusetts, wburns@williams.edu, 650-281-9126.
† Associate Professor, Washington and Lee University School of Law, Lexington, Virginia, osofskyh@
wlu.edu; 540-458-8259.
James E. Hansen, Dangerous Human-Made Interference with Climate, Testimony to the Select Com-
1

mittee on Energy Independence and Global Warming, U.S. House of Representatives, Apr. 26,
2007, available at http://www.columbia.edu/∼jeh1/testimony_26april2007.pdf (last visited May 26,
2008).




1
William C. G. Burns and Hari M. Osofsky
2


1. OVERVIEW OF CLIMATE CHANGE SCIENCE

The most recent assessment by the Intergovernmental Panel on Climate Change
(IPCC)2 concludes that global average surface temperatures have increased by 0.8—¦ C
over the last century, with the linear warming trend over the past ¬fty years twice that
of the past century.3 Moreover, the assessment concluded that “[m]ost of the observed
increase in globally averaged temperatures since the mid-20th century is very likely
due to the observed increase in anthropogenic greenhouse gas concentrations.”4
This section provides an overview of the scienti¬c understanding of the growth of
these emissions and its impacts.
The surface of the Earth is heated by solar radiation emanating from the sun
at short wavelengths between 0.15 and 5 µm. Each square meter of the Earth
receives an average of 342 watts of solar radiation throughout the year.5 Approximately
26% of this radiation is re¬‚ected or scattered back to space by clouds and other
atmospheric particles, and another 19% is absorbed by clouds, gases, and atmospheric
particles.6 Fifty-¬ve percent of incoming solar energy passes through the atmosphere.
Four percent is re¬‚ected from the surface back to space, with the remaining 51%
reaching the Earth™s surface. The heating of Earth™s surfaces results in reradiation of

The IPCC was established by the World Meteorological Organization and the United Nations Envi-
2

ronment Program in 1988 to review and assess the most recent scienti¬c, technical, and socio-
economic information related to the understanding of climate change, to evaluate proposals for
reducing greenhouse gas emissions, and to assess the viability of response mechanisms. G.A. Res.
43/53, U.N. GAOR, 2d Comm., 43rd Sess., Supp. No. 49, at 133, U.N. Doc. A/43/49 (1989). The
IPCC provides comprehensive Assessment Reports of the current knowledge and future projec-
tions of climate change at regular intervals. The reports are authored by teams of authors from
throughout the world from universities, research centers, businesses, and nongovernmental organi-
zations. There were more than 800 contributing authors to the latest report, and more than 2,500
scienti¬c expert reviewers of the report. The First Assessment Report was published in 1990, the
Second Assessment Report in 1995, the Third Assessment Report was released in 2001, and the
Fourth Assessment Report (designated as “AR4”) was released in four volumes throughout 2007.
IPCC, Fact Sheet (2007), available at http://www.ipcc.ch/press/factsheet.htm (last visited May 10,
2007).
Technical Summary, in Climate Change 2007: The Physical Science Basis 5 (S. Solomon et al.
3

eds., 2007), available at http://www.ipcc.ch/ipccreports.ar4-wg1.htm (last visited May 25, 2008) [herein-
after The Physical Science Basis]. Atmospheric temperatures have been rising at a rate of
approximately 0.2—¦ C per decade over the past thirty years. James E. Hansen, Green Mountain
Chrysler-Plymouth-Dodge-Jeep v. Thomas W. Torti, Nos. 2:05-CV-302 & 2:05-CV-304 (Consolidated),
Declaration of James E. Hansen, (Vt., 2007), available at http://www.columbia.edu/∼jeh1/case_for_
vermont.pdf (last visited May 25, 2008).
The Physical Science Basis, supra note 3, at 10. See also R. Somerville et al., Historical Overview of
4

Climate Change, in The Physical Science Basis, supra note 3, at 105 (“human activities have become
a dominant force, and are responsible for most of the warming observed over the past 50 years”). The
IPCC de¬nes the term “very likely” as a greater than 90% likelihood of occurrence/outcome. Id. at
121.
Intergovernmental Panel on Climate Change, Climate Change 2001: The Scienti¬c Basis,
5

Contribution of Working Group I to the Third Assessment Report of the Intergovernmental Panel on
Climate Change 89 (2001) [hereinafter Climate Change 2001-Scienti¬c].
Physicalgeography.net, The Greenhouse Effect, http://www.physicalgeography.net/fundamentals/
6

7h.html (last visited May 25, 2008).
Overview 3


approximately one-third of this energy, in the form of long-wave band (wavelengths
of 3“50 µm) or infrared radiation.7
Some of the outgoing infrared radiation is absorbed by naturally occurring atmo-
spheric gases “ principally water vapor (H2 O), as well as carbon dioxide (CO2 ), ozone
(O3 ), methane (CH4 ), nitrous oxide (N2 O), and clouds.8 This absorption is termed
the “natural greenhouse effect” because these gases, which are termed “green-
house gases,” operate much like a greenhouse: they are “transparent” to incoming
shortwave radiation, but “opaque” to outgoing infrared radiation, trapping a sub-
stantial portion of such radiation and reradiating much of this energy to the Earth™s
surface, increasing surface temperatures.9 While greenhouse gases constitute only
1% of the atmosphere,10 they are critical to the sustenance of life on Earth, elevating
surface temperatures by about 33—¦ C.11
Prior to the Industrial Revolution, atmospheric concentrations of naturally occur-
ring greenhouse gases had been relatively stable for 10,000 years.12 As a consequence,
the net incoming solar radiation at the top of the atmosphere was roughly balanced
by the net outgoing infrared radiation.13 However, with the advent of fossil fuel“
burning plants to support industry, automobiles, and the energy demands of mod-
ern consumers, as well as substantial expansion of other human activities, including
agricultural production, “humans began to interfere seriously in the composition
of the atmosphere”14 by emitting large amounts of additional greenhouse gases.
The human-driven buildup of greenhouse gases in the atmosphere has resulted in
“radiative forcing”; that is, increased levels of these gases result in greater absorption
of outgoing infrared radiation, and ultimately an increase in temperatures when a
portion of this radiation is reradiated to the Earth™s surface.15
The most important anthropogenic greenhouse gas over the past two cen-
turies has been carbon dioxide, which is primarily attributable to fossil fuel

Somerville et al., supra note 3, at 96; Intergovernmental Panel on Climate Change, Radiative Forcing
7

of Climate Change 7 (1994) [hereinafter Radiative Forcing].
Thomas R. Karl & Kevin E. Trenberth, Modern Global Climate Change, 302 Sci. 1719, 1719 (2003).
8

Stephen H. Schneider, The Greenhouse Effect: Science and Policy, 243 Sci. 771, 772 (1989).
9

UNFCCC Secretariat, The Greenhouse Effect and the Carbon Cycle, available at http://
10

unfccc.int/essential_background/feeling_the_heat/items/2903.php (last visited May 25, 2008).
Id.
11

Haroon S. Kheshgi, Steven J. Smith & James A. Edmonds, Emissions and Atmospheric CO2 Stabi-
12

lization, in 10 Mitigation & Adaptation Strategies for Global Change 213, 214 (2005).
John R. Justus & Susan R. Fletcher, Global Climate Change, CRS Issue Brief for Congress 3 (Aug.
13

13, 2001), available at http://www.ncseonline.org/NLE/CRSreports/Climate/clim-2.cfm?&CFID=
13638750&CFTOKEN=63020586 (last visited May 25, 2008).
Fred Pearce, World Lays Odds on Global Catastrophe, New Sci., Apr. 8, 1995, at 4.
14

UNEP, Vital Climate Change Graphics 10 (2005).
15

The earth then is radiating less energy to space than it absorbs from the sun. This temporary
planetary energy imbalance results in the earth™s gradual warming . . . Because of the large
capacity of the oceans to absorb heat, it takes the earth about a century to approach a new
balance “ that if, for it to once again receive the same amount of energy from the sun it radiates
to space. And of course the balance is reset at a higher temperature.
See also James Hansen, Defusing the Global Warming Time Bomb, Sci. Am., Mar. 2004, at 71.
William C. G. Burns and Hari M. Osofsky
4


combustion,16 cement production, and land-use change.17 Carbon dioxide has
accounted for 90% or more of the increased greenhouse gas climate forcing in
recent years.18 Since 1751, more than 297 billion metric tons of carbon have been
released into the atmosphere from anthropogenic sources, with half of the emissions
occurring since 1978.19 Atmospheric concentrations of carbon dioxide were approx-
imately 280 parts per million (ppm) at the start of the Industrial Revolution in the
1780s. While it took a century and a half to reach atmospheric concentrations of
315 ppm, the trend accelerated in the twentieth century, reaching 360 ppm by the
1990s, and 384 ppm currently,20 which exceeds atmospheric levels for at least the
last 650,000 years,21 and most likely the last 20 million years.22


Consumption of crude oil and coal account for almost 77% of fossil fuel carbon dioxide emissions.
16

Climate Change Science Program & Subcommittee on Global Change Research, Our Chang-
ing Planet: The U.S. Climate Change Science Program for Fiscal 2007 117 (2007). Energy-related
carbon dioxide emissions have risen 130-fold since 1850. Pew Center on Global Climate Change,
Climate Change 101: Understanding and Responding to Global Climate Change 34 (2006), available
at http://www.pewclimate.org/docUploads/Climate101-FULL_121406_065519.pdf (last visited May 25,
2008). “Worldwide use of coal, oil, and natural gas in 2005 led to the emission of about 7.5 gigatonnes
of carbon (GtC) in CO2, an amount that continues to increase year by year.” Rosina Bierbaum et al.,
Confronting Climate Change: Avoiding the Unmanageable and Managing the Unavoidable, Scien-
ti¬c Expert Group Report on Climate Change and Sustainable Development 12 (2006), available at
http://www.unfoundation.org/¬les/pdf/2007/SEG_Report.pdf (last visited May 25, 2008).
“The additional release in recent years from deforestation and land-use change, mainly in tropi-
17

cal regions, has been estimated variously at between 0.7 GtC/year and 3.0 GtC/year in CO2 . . . a
mid-range value of 1.5 GtC/year is often cited.” Bierbaum et al., supra note 16, at 12“13. This con-
stitutes 20“25% of anthropogenic greenhouse gas emissions. Chatham House/Royal Society for the
Protection of Birds, Workshop on Reducing Emissions from Tropical Deforestation, Summary Report 1
(2007), available at http://www.chathamhouse.org.uk/¬les/9165_160407workshop.pdf (last visited May
25, 2008); Raymond E. Gullison et al., Tropical Forests and Climate Change, 316 Sci. 985, 985 (2007).
Deforestation also contributes to warming trends by eliminating possible increased storage of carbon
and decreasing evapotranspiration. G. Bala et al., Combined Climate and Carbon-Cycle Effects of
Large-Scale Deforestation, 104(16) Proc. Nat™l Acad. Sci. 6550, 6550 (2007). However, deforestation
exerts a cooling effect, particularly in seasonally snow-covered high latitudes, by decreasing the albedo
(re¬‚ectivity) of surfaces. Id.
James Hansen & Makiko Sato, Greenhouse Gas Growth Rates, 101(46) Proc. Nat™l Acad. Sci. 16,109,
18

16,111 (2004).
Climate Change Science Program & Subcommittee on Global Change Research, Our Changing
19

Planet: The U.S. Climate Change Science Program for Fiscal Year 2007 117 (2006).
Eric Steig, The Lag between Temperature and CO2, RealClimate, Apr. 27, 2007, available at http://www
20

.realclimate.org/index.php/archives/2007/04/the-lag-between-temp-and-co2/ (last visited on June 2,
2008). Approximately half of carbon dioxide emissions since 1751 have occurred since 1978. Cli-
mate Change Science Program & Subcommittee on Global Change Research, supra note 19, at
117. Carbon dioxide emissions grew 80% between 1970 and 2004. IPCC, Working Group III con-
tribution to the Intergovernmental Panel on Climate Change Fourth Assessment Report, Climate
Change 2007: Mitigation of Climate Change, Summary for Policymakers 3 (2007), available
at http://www.ipcc.ch/pdf/assessment-report/ar4/wg3/ar4-wg3-spm.pdf (last visited May 25, 2008) [here-
inafter Mitigation of Climate Change]. Between 2006 and 2007, carbon dioxide emissions rose a
startling 20 percent. Malte Meinhaussen et al., Greenhouse Gas Emissions Targets for Limiting Global
Warming to 20—¦ , 458 Nature 1158, 1160 (2009).
The Physical Science Basis, supra note 3, at 4.
21

CNA Corporation, National Security and the Threat of Climate Change 56 (2007), available at
22

http://www.securityandclimate.cna.org/report/National%20Security%20and%20the%20Threat%20of
%20Climate%20Change.pdf (last visited May 25, 2008).
Overview 5


Nitrous oxide emissions, primarily generated through fertilizer production and
industrial processes, account for approximately 5% of greenhouse gas forcing in
recent years.23 Atmospheric concentrations of nitrous oxides rose from a preindustrial
value of 270 parts per billion (ppb) to 319 ppb in 2005.24
Methane emissions, generated primarily through rice cultivation, ruminants,
energy production, and land¬lls, account for approximately 4% of greenhouse gas
forcing in recent years.25 Atmospheric concentrations of methane have increased
153% from preindustrial levels, reaching 1,774 ppb in 2005. This far exceeds the
natural range of the last 650,000 years.26 Overall, the global emissions of the six
primary anthropogenic greenhouse gases rose 70% between 1970 and 2004.27
The increasing emissions translate into tangible human impacts. The World
Health Organization has estimated that warming and precipitation trends over the
past thirty years associated with anthropogenic climate change have claimed 150,000
lives annually, primarily attributable to human disease and malnutrition.28 Recent
studies have linked the signi¬cant increase in violent weather events over the past
several decades to increases in sea surface temperature associated with climate
change.29 Other expressions of climate change include “increasing ground instability
of permafrost regions . . . shifts in ranges and changes in algal, plankton and ¬sh
abundance in high-latitude oceans . . . [and] poleward and upward shifts in ranges
in plant and animal species. . . .”30
Overall, warming is undoubtedly exerting a substantial and pervasive in¬‚uence on
the globe. As the IPCC recently concluded, “[o]f the more than 29,000 observational
data series, from 75 studies, that show signi¬cant change in many physical and
biological systems, more than 89% are consistent with the direction of change
expected as a response to warming.”31 Physical system responses to climate change

Hansen & Sato, supra note 18, at 16,111.
23

Intergovernmental Panel on Climate Change, supra note 5, at 4.
24

Hansen & Sato, supra note 18, at 16,111.
25

Intergovernmental Panel on Climate Change, supra note 7, at 4. Overall, emissions of the six primary
26

greenhouse gases generated by anthropogenic sources increased 75% between 1970 and 2004. Nether-
lands Environmental Assessment Agency, Global Greenhouse Gas Emissions Increased 75% since 1970
(Nov. 13, 2006), available at http://www.mnp.nl/en (last visited May 25, 2008).
Climate Change 2001-Scienti¬c, supra note 5, at 3.
27

Jonathan A. Patz et al., Impact of Regional Climate Change on Human Health, 438 Nature 310, 310
28

(2005).
Greg J. Holland & Peter J. Webster, Heightened Tropical Cyclone Activity in the North Atlantic:
29

Natural Variability or Climate Trend?, 365 Phil. Transactions Royal Soc™y A 2695 (2007);
K. Emanuel, Increasing Destructiveness of Tropical Cyclones over the Past 30 Years, 436 Nature
686“88 (2005).
Intergovernmental Panel on Climate Change, Climate Change 2007: Impacts, Adapta-
30

tion and Vulnerability, Working Group II Contribution to the Intergovernmental Panel
on Climate Change Fourth Assessment Report, Summary for Policymakers 2, available at
http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2-spm.pdf (last visited on June 2, 2008) [here-
inafter Impacts, Adaptation and Vulnerability].
Id. at 2. See also Cynthia Rosenzweig et al., Attributing Physical and Biological Impacts to Anthro-
31

pogenic Climate Change, 453 Nature 353, 353“54 (May 2008) (stating that in a study of 29,500
data series “[n]inety-¬ve per cent of the 829 documented physical changes have been in directions
consistent with warming”).
William C. G. Burns and Hari M. Osofsky
6


over the past three decades include shrinking glaciers on every continent, melting
permafrost, shifts in the spring peaks of river discharge, and coastal erosion. Biological
effects include phonological changes (such as the timing of blooming of fauna,
species™ migration and reproduction), and changes in community structure.32
However, the greatest trepidation of climate scientists lies in the outlook for this
century and beyond, as atmospheric concentrations of greenhouse gases continue
to rise. Absent aggressive global efforts to reduce greenhouse gas emissions, atmo-
spheric concentrations of carbon dioxide may reach twice preindustrial levels by
as early as 2050,33 and perhaps triple by the end of the century.34 The latest assess-
ment by the IPCC projects that a doubling of atmospheric concentrations of carbon
dioxide from preindustrial levels is likely to result in temperature increases in the
range of 2—¦ “4.5—¦ C, with a best estimate of 3—¦ C.35 This projection is remarkably con-
sistent with paleoclimatic evidence. “[E]mpirical data climate change over the past
700,000 years yields a climate sensitivity of 3/ —¦ C for each W/m2 of forcing, or 3—¦ C for
4
a 4 W/m forcing. However, the time line for these projections may prove to be far
2 36

too sanguine given a “shocking” rise in global energy demand in the past few years,
according to the International Energy Agency (IEA) in its most recent World Energy
Outlook.37 The IEA report concludes that world energy demand has accelerated
rapidly during this decade, primarily attributable to breakneck economic growth
in China and India, and that world energy needs could be 50% higher in 2030
than today.38 As a consequence, the IEA projects that atmospheric concentrations


Rosenzweig et al., supra note 31 at 353.
32

Hansen, supra note 1, at 4.
33

David Talbot, The Dirty Secret, Tech. Rev. (July/Aug. 2006), available at http://www.
34

technologyreview.com/Energy/17054 (last visited May 25, 2008); Stephen F. Lincoln, Fossil Fuels
in the 21st Century, 34(8) Ambio 621, 621 (2005).
Intergovernmental Panel on Climate Change, supra note 7, at 12. See also Bierbaum et al., supra note
35

16, at x:
If CO2 emissions and concentrations grow according to mid-range projections, moreover, the
global average surface temperature is expected to rise by 0.2—¦ C to 0.4—¦ C per decade throughout
the 21st century and would continue to rise thereafter. The cumulative warming by 2100 would
be approximately 3—¦ C to 5—¦ C over preindustrial conditions.
Hansen, supra note 3, at 7. As Hansen notes, paleoclimatic data is particularly compelling because it
36

also includes any cloud feedbacks that may exist. Cloud feedbacks are recognized by most climatol-
ogists as the largest source of uncertainty in climatic modeling. Intergovernmental Panel on Climate
Change, supra note 7, at 4; Richard A. Kerr, Three Degrees of Consensus, 305 Sci. 932, 933 (2004).
IEA Predicts ˜Shocking™ Rise in Global Energy Demand, Environmental Finance Online News, Nov. 8,
37

2007, available at http://www.environmental-¬nance.com/onlinews/1108iea.html (last visited May 25,
2008). See also Josep G. Canadell, Contributions to Accelerating Atmospheric CO2 Growth from Eco-
nomic Activity, Carbon Intensity, and Ef¬ciency of Natural Sinks, Proc. Nat™l Acad. Sci. Early Ed.,
Nov. 13, 2007, http://www.pnas.org/cgi/doi/10.1073/pnas.0702737104 (last visited May 25, 2008) (global
carbon dioxide emissions rate increased from 1.3% in the 1990s to 3.3% annually in 2000“2006).
International Energy Agency, World Energy Outlook 2007: China and India Insights 41 (2007),
38

http://www.iea.org/npsum/weo2007sum.pdf (last visited Nov. 15, 2007). The United States, China, and
India are slated to construct an additional 850 coal-¬red plants by 2012. These plants are projected to
produce an additional 2.7 billion tons of carbon dioxide, while the Kyoto Protocol only requires its Par-
ties to reduce their emissions by about 483 million tons. Mark Clayton, New Coal Plants Bury ˜Kyoto,™
Overview 7


of carbon dioxide could rise to levels that would produce a 6—¦ C increase in global
temperatures by 2030.39
Moreover, the IPCC™s most recent assessment™s midrange scenario projects that
sea levels will rise between 18 and 59 centimeters (7“23 inches) during the remainder
of this century as a consequence of projected warming.40 However, there is a very
real possibility that sea levels will rise much more than this given potential dynam-
ical responses of ice sheets in Greenland and West Antarctica,41 which may exert
substantial positive feedbacks on sea level rise over the next century and beyond.42
A recent study that incorporates ice dynamics projects that sea levels will rise
between 0.8 and 2.0 meters,43 “the highest estimates of sea level rise by 2100 that has
been published in the literature to date.”44 In the longer term, if annual temperatures
increase by more than 3—¦ C in the Antarctic region, which is highly likely by the end
of this century, one study projects that globally averaged sea levels could increase by
7 meters over a period of 1,000 years or more.45
Consistent scienti¬c evidence predicts that climate change will have dire impli-
cations for both natural systems and human institutions. In the context of natural
systems, the IPCC™s most recent assessment concluded that “the resilience of many
ecosystems is likely to be exceeded this century by an unprecedented combination
of climate change, associated disturbances (e.g., ¬‚ooding, drought, wild¬re, insects,
ocean acidi¬cation), and other global change drivers (e.g., land use change, pol-
lution, overexploitation of resources).”46 For example, coral reefs have extremely
narrow temperature tolerances of between 25 and 29—¦ C, with some species in Paci¬c

Christian Sci. Monitor, Dec. 23, 2004, available at http://www.csmonitor.com/2004/1223/p01s04-
sten.html (last visited May 25, 2008).
IEA Predicts ˜Shocking™ Rise in Global Energy Demand, supra note 37.
39

G. A. Meehl, et al., Global Climate Change Projections, in IPCC Fourth Assessment Report, The
40

Physical Science Basis (2007), at 820, http://ipcc-wg1.ucar.edu/wg1/Report/AR4WG1_Ch10.pdf (last
visited May 20, 2007). Rising sea levels associated with climate change are attributable primarily to
thermal expansion of ocean waters due to warming and glacial melting. Hansen, supra note 1, at 16.
A persuasive case is made by Hansen that the IPCC in its Fourth Assessment Report failed to adequately
41

take into account multiple positive feedbacks that could occur in Greenland and West Antarctica
should temperatures rise by 2“3—¦ C. These include “reduced surface albedo, loss of buttressing ice
shelves, dynamical response of ice streams to increased melt-water and lower sea surface ice altitude,”
all of which result in massive rises in sea level within a few centuries. James Hansen et al., Global
Temperature Change, 103(39) Proc. Nat™l Acad. Sci. 14,288, 14,292 (2006).
J.E. Hansen, Scienti¬c Reticence and Sea Level Rise, 3 Envtl. Res. Letters 1, 4 (2007); James Hansen
42

et al., Climate Change and Trace Gases, 365 Phil. Transactions Royal Soc™y A 1925, 1936 (2007);
Michael Oppenheimer et al., The Limits of Consensus, 317 Sci. 1505, 1505 (2007).
W.T. Pfeffer, et al., Kinematic Constraints on Glacier Contributions to 21st Century Sea-Level Rise, 321
43

Sci. 1340, 1342 (2008).
How Much Will Sea Level Rise?, RealClimate.org, Sept. 4, 2008, http://www.realclimate.org/
44

index.php?p=598 (last visited Sept. 5, 2008).
Jonathan M. Gregory, Philippe Huybrechts & Sarah C.B. Raper, Threatened Loss of the Greenland
45

Ice-Sheet, 428 Nature 616, 616 (2004). See also Julian A. Dowdeswell, The Greenland Ice Sheet and
Global Sea-Level Rise, 311 Sci. 963, 963 (2006). Hansen also concluded that a 2“3—¦ C increase in
temperatures could ultimately result in sea level rise of 25 meters over the course of the next few
hundred years. Id. at 21.
Impacts, Adaptation and Vulnerability, supra note 30, at 5.
46
William C. G. Burns and Hari M. Osofsky
8


island developing countries (PIDCs) currently living near their threshold of ther-
mal tolerance.47 Projected sea temperature rises in the Paci¬c region over the next
century are likely to result in a “catastrophic decline” in coral cover.48 Loss of coral
reefs could have similar implications in other regions, including the Indian Ocean
and Caribbean Sea.49 Overall, the World Bank has estimated that 50% of the subsis-
tence and artisanal ¬sheries will be lost in regions where coral reefs die due to coral
bleaching attributable to climate change.50 The massive infusion of carbon dioxide
into the world™s oceans associated with the growth of anthropogenic emissions also
may result in serious declines in coral reef calci¬cation rates, further contributing
to their destruction.51
In addition, forest ecosystems may be negatively impacted by climate change.
Climate change may drive changes in ¬‚oristic composition in some regions, resulting
in changes in forest composition. This could result in the decline of species that
sustain assemblages of pollinators, herbivores, symbiotic fungi, and other important
species in regions such as the Amazon.52 In some cases, the loss of key tree species
could result in the collapse of entire forest ecosystems.53
Climate change may adversely impact a wide array of species through, inter alia,
habitat alteration and destruction, changes in phenology (the relationship between
climate and periodic biological phenomena, such as hibernation or migration), and
direct temperature effects.54 The IPCC in its Fourth Assessment Report concluded

William C.G. Burns, The Potential Impacts of Climate Change on Paci¬c Island State Ecosystems,
47

Occasional Paper of the Paci¬c Institute for Studies in Development, Environment, and Security, at
4 (Mar. 2000).
Brian C. O™Neill & Michael Oppenheimer, Climate Change Impacts Are Sensitive to the Concentra-
48

tion Stabilization Path, 101(47) Proc. Nat™l Acad. Sci. 16,411, 16,414 (2004) (“Model studies suggest
that Earth may enter an era of sustained bleaching and widespread demise of reefs if global mean
temperature increases by >1—¦ C from recent levels”).
John P. McWilliams et al., Accelerating Impacts of Temperature-Induced Coral Bleaching in the
49

Caribbean, 86(8) Ecology 2055, 2059 (2005) (projected warming in the Caribbean could result
in “maximum bleaching extent (i.e., 100% of coral-bearing cells) and maximum bleaching intensity
(100% of coral colonies)”; Simon D. Donner et al., Global Assessment of Coral Bleaching and Required
Rates of Adaptation Under Climate Change, 11 Global Climate Change Biology 2251, 2256“57
(2005) (severe coral bleaching events could occur every three to ¬ve years by 2030 in the majority of
the world™s coral reefs, and become a biannual event by 2050); Charles R.C. Sheppard, Coral Decline
and Weather Patterns over 20 Years in the Chagos Archipelago, Indian Ocean, 28(6) Ambio 472, 475
(1999).
O. Hoegh-Guldberg et al., Paci¬c in Peril, Greenpeace 54 (Oct. 2000), available at
50

http://www.greenpeace.org/raw/content/australia/resources/reports/climate-change/coral-bleaching-
paci¬c-in-pe.pdf (last visited May 26, 2008).
See William C.G. Burns, Potential Causes of Action for Climate Change Impacts under the United
51

Nations Fish Stocks Agreement, in this volume.
William F. Laurance et al., Pervasive Alteration of Tree Communities in Undisturbed Amazonian
52

Forests, 428 Nature 171, 174“75 (2004).
Frank Ackerman & Elizabeth Stanton, Climate Change: The Costs of Inaction, Report to
53

Friends of the Earth England, Wales and Northern Ireland 23 (2006), available at
http://www.foe.co.uk/resource/reports/econ_costs_cc.pdf (last visited May 25, 2008).
See James Battin, Projected Impacts of Climate Change on Salmon Habitat Restoration, 104 Proc.
54

Nat™l Acad. Sci. 6720“25 (2007); Mark B. Bush, Miles R. Silman & Dunia H. Urrego, 48,000 Years
of Climate and Forest Change in a Biodiversity Hotspot, 303 Sci. 827, 829 (2004); Andrew R. Blaustein
et al., Amphibian Breeding and Climate Change, 15(6) Conservation Biology 1804“09 (2001).
Overview 9


that 20“30% of species would likely face an increased risk of extinction if globally
averaged temperatures rise 1.5“2.5—¦ C above 1980“1999 levels, and that 40“70% of
species could be rendered extinct should temperature increases exceed 3.5—¦ C.55
Thus, climate change may pose the greatest global threat to biodiversity in most
regions of the world by the middle or latter part of this century.56
In terms of human impacts, 100 million people may be imperiled by coastal
¬‚ooding even under the middle range of projections,57 with the very future of
many small island nations potentially hanging in the balance.58 Should sea level
ultimately rise 4“6 meters, the results would be “globally catastrophic,”59 resulting
in the inundation of large parts of many major cities, including New York, London,
Sydney, Vancouver, Mumbai, and Tokyo.60 “In Florida, Louisiana, the Netherlands,
Bangladesh and elsewhere, whole regions and cities may vanish. China™s economic
powerhouse, Shanghai, has an average elevation of just 4 metres.”61
There is also likely to be a substantial increase in the incidence of a wide array of
deadly diseases. This includes vector-borne infectious diseases such as malaria and
dengue fever,62 as well as water-borne diseases such as cholera and hepatitis A.63 A
2—¦ C increase in temperature, for example, could lead to 40“60 million additional
cases of malaria in Africa and millions of additional deaths.64
Global food production potential is anticipated to rise over a range of 1“3—¦ C
temperature increases.65 However, increased temperatures and regional declines in
precipitation could exacerbate conditions in arid and semiarid regions,66 resulting

T. Flannery, The Weather Makers 116 (2005); Craig D. Thomas et al., Extinction Risk from
55

Climate Change, 427 Nature 145, 146“47 (2004).
Thomas et al., supra note 55, at 146“47.
56

Climate Action Network, Preventing Dangerous Climate Change 6 (2002).
57

William C.G. Burns, Potential Implications of Climate Change for the Coastal Resources of Paci¬c
58

Island Developing Countries and Potential Legal and Policy Responses, 8(1) Harv. Asia-Pac. Rev.
1“8 (2005); William C.G. Burns, The Possible Impacts of Climate Change on Paci¬c Island State
Ecosystems, Occasional Paper of the Paci¬c Institute for Studies in Development, Environment &
Security 1“19 (Mar. 2000).
Richard A. Kerr, Global Warming Is Changing the World, 316 Sci. 188, 190 (2007).
59

James Hansen, Climate Catastrophe, New Sci. 33, July 30, 2007, available at http://pubs.giss.
60

nasa.gov/docs/2007/2007_Hansen_2.pdf (last visited May 25, 2008).
Id. Sea level rise of several meters could compel more than one billion inhabitants to retreat inland
61

“or face exile.” See also Sujatha Byravan & Sudhir Chella Rajan, Providing New Homes for Climate
Change Exiles, 6 Climate Pol™y 247, 247 (2006).
Impacts, Adaptation and Vulnerability, supra note 30, ch. 9, Human Health, at sec. 9.7.1.1
62

(Number of people living in potential transmission zone of malaria may increase by 260“320 million
by 2080); John E. Hay et al., Climate Variability and Change and Sea-Level Rise in the Paci¬c
Islands Region, South Paci¬c Regional Environment 69 (2003), available at http://www.sprep.org/
climate/documents/webi.pdf (last visited May 25, 2008); William C.G. Burns, Climate Change and
Human Health, The Critical Policy Agenda, 287(17) J. Am. Med. Ass™n 287, 287 (2002).
IPCC, supra note 7, at sec. 9.5.1.
63

Paul Reiter, Climate Change and Mosquito-Borne Disease, 109 Envtl. Health Persp. 1, 1 (2001).
64

Impacts, Adaptation and Vulnerability, supra note 30, at 8.
65

Papua New Guinea & Paci¬c Island County Unit, The World Bank, Cities, Seas, and Storms,
66

in 4 Adapting to Climate Change 13, Nov. 13, 2000; UNEP Information Unit On Climate
Change, Climate Change Scenarios: Why the Poor Are the Most Vulnerable, Fact Sheet No. 111
(May 1993).
William C. G. Burns and Hari M. Osofsky
10


in substantial declines in crop production in many developing nations.67 This could
be especially disastrous in Africa, where close to half of the currently 800 million
undernourished people reside.68 The IPCC in its most recent assessment indicates
that yields from rain-fed agriculture could decline by up to 50% by 2020.69
The economic implications of climate change could also be extremely serious.
A 2005 study for the European Commission projected that the cost of climate
change could be more than $100 trillion by the end of this century.70 Other studies
project even potentially direr economic impacts. For example, the German Institute
for Economic Research projects that economic damage could reach $20 trillion
annually by 2100 under a business-as-usual scenario for greenhouse gas emissions,
reducing global economic output by 6“8%.71 The Stern Review on the Economics
of Climate Change for the U.K. government concluded that warming on the higher
end of projections could result in a 5“10% loss of GDP, with poorer countries
suffering losses in excess of 10%.72


2. INTERNATIONAL LEGAL RESPONSES TO CLIMATE CHANGE

The primary international legal response to climate change to date is the United
Nations Framework Convention on Climate Change (UNFCCC),73 which entered
into force in 1994 and has been rati¬ed by 189 countries and the European Economic
Community.74 Unfortunately, resistance by several nations, most prominently, the
United States and OPEC States, to mandatory reduction targets for greenhouse
gas emissions led the drafters to resort instead to “constructive ambiguities” and
“guidelines, rather than a legal commitment.”75 Thus, the UNFCCC merely calls


Drew T. Shindell et al., Solar and Anthropogenic Forcing of Tropical Hydrology, 33 Geophysical Res.
67

Letters L24706 1, 5 (2006), available at http://pubs.giss.nasa.gov/docs/2006/2006_Shindell_etal_4.pdf
(last visited May 25, 2008); Mark Spalding, Stephen Grady & Christoph Zockler, Changes in
¨
Tropical Regions, in Impacts of Climate Change on Wildlife 28 (Rys E. Green et al. eds.,
2002).
CNA Corporation, National Security and the Threat of Climate Change 15 (2007), available
68

at http://securityandclimate.cna.org (last visited May 25, 2008).
Impacts, Adaptation and Vulnerability, supra note 30, at 10.
69

Paul Watkiss et al., The Impacts and Costs of Climate Change iv (2005), Commissioned
70

by the European Commission DG Environment, available at http://ec.europa.eu/environment/
climat/pdf/¬nal_report2.pdf (last visited May 25, 2008).
Ackerman & Stanton, supra note 53, at 22.
71

Nicholas Stern, The Economics of Climate Change, Executive Summary ix (2006), available
72

at http://www.hm-treasury.gov.uk./media/4/3/Executive_Summary.pdf (last visited May 25, 2008).
United Nations Framework Convention on Climate Change, 31 I.L.M. 849 (May 9, 1992) [hereinafter
73

UNFCCC].
United Nations Framework Convention on Climate Change Secretariat, UNFCCC: Status of Rati¬-
74

cations, available at http://unfccc.int/kyoto_protocol/status_of_rati¬cation/items/2613.php (last visited
May 25, 2008) [hereinafter Status of Rati¬cations].
Ranee Khooshie Lai Panjabi, Can International Law Improve the Climate? An Analysis of the United
75

Nations Framework Convention on Climate Change Signed at the Rio Summit in 1992, 18 N.C. J. Int™l
L. & Com. Reg. 401, 404 (1993).
Overview 11


on the Parties in Annex I (developed countries and economies in transition) to “aim”
to return their emissions back to 1990 levels.76
By 1995, the greenhouse gas emissions of most developed countries were already
well above 1990 levels, and a study by the Organization of Economic Cooperation
and Development projected that emissions from industrialized countries would rise
between 11 and 24% over the next 15 years.77 The realization that more substantive
measures were necessary ultimately led to the adoption of the Kyoto Protocol to the
UNFCCC78 at the Third Conference of the Parties in 1997. The Protocol entered
into force in 2005 and currently has 169 States and the EEC as Parties.79
The Protocol calls for industrialized States and States with economies in transition
to reduce their aggregate greenhouse gas emissions to at least 5% below 1990 levels in
the commitment period of 2008 to 2012.80 In addition, the Protocol required Parties
to begin negotiating commitments for subsequent periods by 2005.81
Unfortunately, for several reasons, the Protocol is not the panacea that the pop-
ular press sometimes portrays it to be. First, former President George W. Bush
announced in 2001 that the United States, responsible for 25% of the world™s anthro-
pogenic greenhouse gas emissions, would not become a Party to the Protocol.82 As
an alternative, the former president as part of his 2002 “Clear Skies Initiative” pro-
posed the “Global Climate Initiative (GCI),” which would have sought to reduce
the “greenhouse gas intensity” of the U.S. economy by 18% over the following ten
years.83 “Greenhouse gas intensity” is de¬ned as the ratio of greenhouse gases to
economic output.84
While touted as a bold approach by the Bush administration, in reality, the GCI
constituted an extremely tepid response by the world™s largest producer of greenhouse
gases. While the Kyoto Protocol would have committed the United States to reduce
its greenhouse gas emissions by 7% below 1990 levels,85 under the GCI it was
estimated that emissions would rise by 32% above 1990 levels.86 The GCI ultimately

UNFCCC, supra note 73, at art. 4(2)(b).
76

Bas Arts, New Arrangements in Climate Policy, 52 Change 1, 2 (2000).
77

Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997,
78

FCCC/CP/1997/L.7/Add. 1, 37 I.L.M. 22.
Status of Rati¬cations, supra note 74.
79

Id. at art. 3(1).
80

Id. at art 3(9); art. 21(7).
81

Press Release, White House Of¬ce of the Press Secretary, President Bush Discusses Global Cli-
82

mate Change (June 11, 2001), available at http://www.whitehouse.gov/news/releases/2001/06/20010611“
2.html (last visited May 25, 2008).
The White House, Global Climate Change Policy Book, Feb. 2002, available at http://www.
83

whitehouse.gov/news/releases/2002/02/climatechange.html (last visited May 25, 2008). The proposal
also called, inter alia, for increasing funding for climate change research by $700 million in ¬scal year
2003. Id.
Id.
84

Kyoto Protocol, supra note 78, at Annex B.
85

Detlef van Vuuren et al., An Evaluation of the Level of Ambition and Implications of the Bush Climate
86

Change Initiative, 2 Climate Pol™y 293, 295 (2002); A.P.G. de Moor et al., Evaluating the Bush
Climate Change Initiative, Dutch Ministry of Environment, RIVM Report 278001019/2002 13 (2002).
William C. G. Burns and Hari M. Osofsky
12


withered on the vine after failing to clear out of the Senate Environment and Public
Works Committee in March 2005.87 While the Bush administration continued to
tout a voluntary, technologically driven approach, the UNFCCC Secretariat recently
projected that U.S. greenhouse gas emissions will be more than 32% above 1990
levels by 2010, and more than 50% above 1990 levels by 2020.88 The steady upward
projection of emissions is in no small part attributable to the United States™ continued
commitment to coal, which produces triple the carbon dioxide per unit of energy as
natural gas and double that of oil.89 Fifty percent of the electricity generated in the
United States is currently produced from coal, and there are an estimated 130 new
Michael Janofsky, Bush-Backed Emissions Bill Fails to Reach Senate Floor, N.Y. Times, Mar.
87

10, 2005, available at http://www.nytimes.com/2005/03/10/politics/10enviro.html (last visited May
25, 2008). The United States, China, India, Japan, South Korea, and Australia, responsible for
49% of the world™s greenhouse gas emissions, did agree to form the Asia-Paci¬c Partnership on
Clean Development and Climate in 2005. The Partnership™s primary objective is to “promote
and create an enabling environment for the development, diffusion, deployment and transfer of
existing and emerging cost-effective, cleaner technologies and practices. . . . ” Potential areas for
collaboration include development of energy ef¬ciency programs, clean coal, renewable energy
sources, including wind, solar, and geothermal, and carbon sequestration projects. It is contem-
plated that a nonbinding compact will be established to specify terms of implementation of the
Partnership. Vision Statement of Australia, China, India, Japan, the Republic of Korea and the
United States of America for a New Asia-Paci¬c Partnership on Clean Development and Climate,
July 28, 2005, http://www.pm.gov.au/news/media_releases/media_Release1482.html#statement (last
visited Aug. 25, 2005); Anna Matysek et al., Technology “ Its Role in Economic Development
and Climate Change 7, Abare Res. Rep. 06.6 (2006), available at http://www.abareconomics.com/
publications_html/climate/climate_06/cc_technology.pdf (last visited May 25, 2008). However, the
Partnership agreement is not likely to substantially change the terrain, as it does not incorpo-
rate legally binding commitments or targets to reduce greenhouse gas emissions, obviating the
incentive for the public and private sectors to deploy costly new technologies, and doesn™t at
this point have a funding mechanism for the programs it outlines, including facilitation of trans-
fers of low-emission technologies to developing countries. Zhong Xiang Zhang, Energy, Envi-
ronment and Climate Issues in Asia, Harvard Project for Asian and International Relations 26
(2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=920756 (last visited May 25,
2008); Richard Black, Climate Pact: For Good or Bad?, BBC News, July 28, 2005, available at
http://news.bbc.co.uk/1/hi/sci/tech/4725681.stm (last visited May 25, 2008). As Anthony Hobley, Chair-
man of the London Climate Change Services concluded: “This partnership does not provide any-
thing additional to the UNFCCC to which all of the countries involved have already signed up.”
Liz Bossley, Asia-Paci¬c Partnership: Complementing or Competing with Kyoto?, 48 Middle E.
Econ. Surv., No. 32, Aug. 8, 2005, available at http://www.mees.com/postedarticles/oped/v48n32“
5OD01.htm (last visited May 25, 2008). Moreover, to date, Australia and the United States have
pledged to spend a paltry $455 million over the next ¬ve years on clean energy projects. Clair Miller,
New Climate Partnership Makes Little Difference, 4(2) Frontiers in Ecology & Env™t 60, 60
(2006).
UNFCCC Secretariat, Data Appendices to UNFCCC Presentation at the AWG Workshop 6, Nov.
88

7, 2006, available at http://unfccc.int/¬les/meetings/cop_12/in-session_workshops/application/pdf/
061107_6_ghg_app.pdf (last visited May 25, 2008).
William K. Stevens, Global Economy Slowly Cuts Use of High-Carbon Energy, N.Y. Times, Oct. 31,
89

1999, at A12. Coal-burning plants contributed most of the new carbon dioxide emitted by the electric
power sector, which in turn has accounted for nearly half of the 18% increase in carbon dioxide
emissions in the United States between 1990 and 2004. Megan Tady, Climate Change Gas Emissions
Way Up Nationwide, AlterNet, Apr. 20, 2007, http://www.alternet.org/story/50624 (last visited May 25,
2008).
Overview 13


coal-¬red plants on the drawing boards.90 As the IPCC recently observed, energy
infrastructure decisions during this period of time will exert substantial in¬‚uence on
future greenhouse gas emissions, given the long lifetimes of such facilities.91
With the Bush administration™s increased openness to international climate nego-
tiations in its last couple of years and with the Obama administration™s much greater
commitment to the negotiations, the United States appears to be reengaging the
world community on this issue. At the G8 Summit in June 2007, the United States
joined the other States in adopting “Agenda for Global Growth and Stability,”
which included a section on addressing climate change. In the Agenda, the G8
States acknowledged the need for “resolute and concerted action” to reduce green-
house gas emissions, and that “tackling climate change is a shared responsibility for
all.”92 However, primarily because of U.S. resistance, the G8 stopped short of agree-
ing to speci¬c targets and timetables for reducing emissions, rather only pledging
to “consider seriously” the decisions made by the European Union, Canada, and
Japan to reduce emissions by at least half of 1990 levels by 2050.93
Later in 2007, then president Bush invited the EU, the United Nations, and
eleven industrial and developing States to work toward a long-term goal for emis-
sions reductions by 2008.94 However, at the thirteenth Conference of the Parties
to the UNFCCC in December, the Bush administration castigated the European
Union for proposing that industrialized nations reduce their greenhouse gas emis-
sions by 25“40% by 2020, characterizing the proposal as “totally unrealistic” and
“unhelpful.”95 Ultimately, the United States did agree to the Bali Action Plan,
which lays out a process for addressing climate change in the long term.96 However,
the Action Plan also re¬‚ects the U.S. resistance to binding targets and timetables
for reducing emissions. The United States successfully beat back an effort by the
European Union to secure an agreement on the part of industrialized nations to


Pew Center on Global Climate Change, Coal and Climate Change Facts, available at http://
90

www.pewclimate.org/global-warming-basics/coalfacts.cfm (last visited May 25, 2008).
Mitigation of Climate Change, supra note 20, at 18.
91

G8 Summit, Growth and Responsibility in the World Economy, ¶¶40“41, June 7, 2007.
92

Id. at ¶49.
93

Matt Spetalnick, Bush Calls Meeting on Global Warming for September, Planet Ark, Aug. 6, 2007,
94

http://www.planetark.com/dailynewsstory.cfm/newsid/43467/story.htm (last visited May 25, 2008).
David Adam, U.S. Balks at Bali Carbon Targets, Guardian Unlimited, Dec. 10, 2007, available
95

at http://www.guardian.co.uk/environment/2007/dec/10/climatechange.usnews (last visited May 25,
2008). The European Union in late 2008 committed itself to a “triple” initiative to reduce greenhouse
gas emissions by 20% below 1990 levels by 2020, to reduce energy consumption by 20% the same date,
and to ensure that 20% of EU energy is produced with renewable energy sources by that date. Ian
Traynor, A Mix of Rules and Markets, Held Together by Tradeoffs, Guardian.co.uk, Dec. 13, 2008, avail-
able at http://www.guardian.co.uk/environment/2008/dec/13/carbonemissions-emissionstrading (last
visited Mar. 10, 2009).
UNFCCC, 13th Conference of the Parties, Bali Action Plan, CP.13 (2007), available at
96

http://unfccc.int/¬les/meetings/cop_13/application/pdf/cp_bali_action.pdf (last visited May 25, 2008)
[hereinafter Bali Action Plan].
William C. G. Burns and Hari M. Osofsky
14


reduce their emission by 25“40% by 2012.97 Thus, the Plan merely establishes a
comprehensive process to “enable the full, effective and sustained implementa-
tion of the Convention through long-term cooperative action . . . ,”98 including
“[m]easurable, reportable and veri¬able nationally appropriate mitigation commit-
ments or actions, including quanti¬ed emission limitation and reduction objectives,
by all developed country Parties.”99
In March 2008, James L. Conaughton, chairman of the White House Council
on Environmental Quality under President Bush, announced that the United States
was amenable to accepting a binding treaty to reduce emissions if China and other
major developing countries were willing to do so also.100 At the G8 Summit in Japan
in July 2008, the G8 leaders agreed to “the goal of achieving at least 50% reduction
of global emissions by 2050.”101 However, the leaders notably failed to agree to
medium-term targets, and the emphasis on the need for both major developed and
developing economies to make substantive commitments102 may ultimately scupper
the initiative.
The Obama administration has pledged to “engage vigorously” in climate change
negotiations at the international level and has called for implementing a cap-and-
trade program to reduce greenhouse gas emissions in the United States 14% below
2005 levels by 2020, and approximately 83% below 2005 levels by 2050.103 These
commitments hopefully will translate into greater willingness for the United States to
make binding international commitments in the post-2012 treaty regime. Moreover,
the U.S. Congress, with support from the executive branch, is considering major
cap-and-trade legislation, and some U.S. cities, counties, and states are at the front
end of innovative emissions reductions. But in the meantime, despite progress by
particular smaller-scale governments, the United States as a whole continues to emit
at troublingly high levels.104


Peter Montague, The Basket Our Eggs Are In, 939 Rachel™s Democracy & Health N., Dec.
97

27, 2007, available at http://www.rachel.org/en/newsletters/rachels_news/939 (last visited May 28,
2009).
UNFCCC, Bali Action Plan, Decision “ CP.13/ (2008), at para. 1.
98

Id. at para. 1(b)(i).
99

James Kanter & Andrew C. Revkin, Binding Emissions Treaty Still a Possibility, U.S. Says, N.Y.
100

Times, Feb. 27, 2008, at A8.
G8 Summit, Statement on Environment and Climate Change (2008), at para. 23, available at
101

http://www.g8summit.go.jp/eng/doc/doc080709_02_en.html (last visited July 14, 2008).
Id. at para. 24.
102

Kim Chipman & Catherine Dodge, Obama Plan Has $79 Billion From Cap-and-Trade in 2012,
103

Bloomberg News, Feb. 26, 2009, available at http://www.bloomberg.com/apps/news?pid=20601087&
sid=aDT1Ybl.PccE&refer=home; Change.gov, The Obama-Biden Plan, available at http://change
.gov/agenda/energy_and_environment_agenda (last visited Mar. 1, 2009); Jeff Mason, Obama Vows
Climate Action Despite Financial Crisis, Reuters, Nov. 18, 2008, available at http://www.reuters
.com/article/vcCandidateFeed2/idUSN18276285 (last visited Mar. 1, 2009).
See Kitty Bennett & Farhana Hossain, The Presidential Candidates on Climate Change, available
104

at http://politics.nytimes.com/election-guide/2008/issues/climate.html (last visited May 25, 2008).
Another potential positive development in the United States was the ¬‚urry of legislative activ-
ity in the 110th Congress to address climate change, with more than 180 bills, resolutions, and
amendments introduced in the session through February 2008 to address climate change. Pew
Overview 15


Second, in developing the rules for implementing the Protocol, many concessions
were made to wavering nations that substantially dilute the Parties™ commitments.
Thus, some analysts believe that implementation of the Protocol ultimately will

Center on Global Climate Change, Legislation in the 110th Congress Related to Global Cli-
mate Change, available at http://www.pewclimate.org/what_s_being_done/in_the_congress (last vis-
ited May 25, 2008). Several of the bills would have established cap-and-trade systems that would
have dramatically reduced emissions over the course of the next few decades. In December
2007, the U.S. Senate Environment and Public Works Committee reported out the Lieberman-
Warner Climate Security Act, S. 2191. This is the ¬rst greenhouse gas emissions cap-and-trade
bill to be voted out of committee in the United States. Pew Center on Global Climate Change,
Legislation in the 110th Congress Related to Global Climate Change, available at http://www.
pewclimate.org/what_s_being_done/in_the_congress/110thcongress.cfm (last visited May 25, 2008).
However, the bill ultimately died on the Senate ¬‚oor in June 2008. Eric Pooley, Why the
Climate Bill Failed, Time, June 9, 2008, available at http://www.time.com/time/nation/article/
0,8599,1812836,00.html (last visited Mar. 11, 2009). There is likely to be substantial activity related
to climate change in the 111th Congress. President Obama has several powerful allies who advo-
cate climate change legislation in the House, including Henry Waxman, the chairman of the
House Energy and Commerce Committee, which has jurisdiction over climate change legisla-
tion in the House, and Representative Edward Markey, who heads up the committee™s Subcom-
mittee on Energy and Environment. Pew Center on Global Climate Change, Climate Action in
Congress, available at http://www.pewclimate.org/what_s_being_done/in_the_congress (last visited
Mar. 11, 2009). The Senate may also begin debate on climate change legislation again this summer.
Ian Talley, Sen. Reid: Aiming to Debate Climate Bill by Summer, Wall St. J., Feb. 20, 2009, available
at http://online.wsj.com/article/SB123516532284336065.html (last visited Mar. 12, 2009).
At the subnational level, there are also a number of regional and state initiatives to address
climate change that may ultimately have a positive impact. For example, in 2006, California,
which is the twelfth-largest emitter of carbon dioxide globally, Of¬ce of the Governor, Press
Release, Gov. Schwarzenegger Signs Landmark Legislation to Reduce Greenhouse Gas Emissions,
available at http://gov.ca.gov/index.php?/press-release/4111/ (last visited May 25, 2008), passed the
California Global Warming Solutions Act, or AB32. California Legislature, Assembly Bill 32,
Dec. 4, 2006, available at http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_0001-0050/ab_32_bill_
20070501_amended_asm_v96.pdf (last visited May 25, 2008) [hereinafter AB32]. AB32 calls for the
state to reduce its greenhouse emissions to 1990 levels by 2020. Id. at sec. 38550. The law pro-
vides for the establishment of additional targets thereafter, with the ultimate goal of reducing the
state™s emissions by 80% below 1990 levels by 2050. Of¬ce of the Governor, supra. It remains to
be seen, however, whether the state can achieve this goal in the face of a projected doubling of
its population in the next forty years and likely political pressure to downgrade the commitment if
there is not ultimately a commensurate federal mandate. Bruce Murray, Global Cooling in the Sun-
shine State, available at http://www.analysisonline.org/energy/ab32.html (last visited Sept. 6, 2007).
In the East, ten states have now joined the Regional Greenhouse Gas Initiative (RGGI), which
sets a cap on power plant emissions at approximately current levels of 120 million tons of carbon
dioxide between 2009 and 2015, and then 10% below this level by 2019. Regional Greenhouse Gas
Initiative, Frequently Asked Questions, available at http://www.rggi.org/docs/mou_faqs_12_20_05.pdf
(last visited May 25, 2008). Even assuming the states achieve this goal, this is an extremely mod-
est commitment compared to what ultimately must be done, but at least RGGI establishes an
institutional framework in the region that hopefully will both commit to further reductions in
the future and help to pressure the federal government to establish national mandates. Moreover,
a large number of states are taking actions to reduce greenhouse gas initiatives, including through
renewable portfolio standards, greenhouse gas emissions targets, and tax incentives to reduce emis-
sions. Pew Center on Global Climate Change, Climate Change 101: State Action, available at
http://www.pewclimate.org/docUploads/101_States.pdf (last visited May 25, 2008). Similar initiatives
have been established in the Midwest and South. See Western Climate Initiative, available at
http://www.westernclimateinitiative.org/Useful_Links.cfm (last visited May 25, 2008); Midwestern
Greenhouse Gas Accord, available at http://www.wisgov.state.wi.us/docview.asp?docid=12497 (last
visited May 25, 2008).
William C. G. Burns and Hari M. Osofsky
16


result in substantially fewer reductions in emissions than originally contemplated,
or perhaps even a net increase over 1990 levels.105
Third, it is far from clear that most of the industrialized State Parties to Kyoto
will ful¬ll their obligations in the ¬rst commitment period. For example, Japan™s
emissions are currently more than 14% above its Kyoto targets.106 Canada™s emis-
sions are now more than 30% above 1990 levels,107 and the government recently
acknowledged that it won™t meet its commitments, but rather will seek to achieve
less ambitious targets.108 Even the European Union, the staunchest supporter of
the Protocol, is struggling to meet its commitments. Greenhouse gas emissions
in the EU rose in 2004 and 2005,109 and seven of the EU-15 States are projected to
exceed their individual emission limits set by the EU.110 The European Commission
projects that the bloc™s Kyoto commitment will be met through the implementation
of additional initiatives, but has emphasized that there is little room for error at this
point.111


Tom Athanasiou & Paul Baer, Bonn and Genoa: A Tale of Two Cities and Two Movements, Foreign
105

Policy in Focus, Discussion Paper 3 (Aug. 2001) (Concessions made in negotiations to ¬‚esh out Kyoto
Protocol could “render the protocol™s nominal mandate of a 5.2% overall reduction in rich-world
emissions (from their 1990 baseline) into a 0.3% increase); Miranda A. Schreurs, Competing Agendas
and the Climate Change Negotiations: The United States, the European Union, and Japan, 31 Envtl.
L. Rep. 11,218, 11,218 (2001).
Ikuko Kao & Neil Chatterjee, Japan™s Kyoto Gap Widens as Emissions Rise, Planet Ark, Oct. 18,
106

2006, available at http://www.planetark.com/dailynewsstory.cfm/newsid/38538/story.htm (last visited
May 25, 2008). See also Japan Emissions to Rise, Kyoto Target at Risk “ Paper, Aug. 9, 2007, http://www
.planetark.com/dailynewsstory.cfm/newsid/43564/story.htm (last visited May 25, 2008) (Japanese gov-
ernment projects that Japan™s greenhouse gas emissions will rise by 0.9% in the ¬scal year ending in
March 2011).
Rob Gillies, Canada Won™t Meet Kyoto Emissions Targets, Boston.com, Apr. 26, 2007, available at
107

http://www.boston.com/news/world/canada/articles/2007/04/26/canada_wont_meet_kyoto_emission_
target (last visited Sept. 6, 2007). The government™s own new “Turning the Corner” climate change
strategy would put Canada 39% above its Kyoto target in 2012. Environment News Service, Canada
Sued for Abandoning Kyoto Climate Commitment, May 29, 2007, available at http://www.ecojustice.ca/
media-centre/press-clips/canada-sued-for-abandoning-kyoto-climate-commitment/?searchterm=%22
abandoning%20kyoto (last visited May 25, 2008).
Gillies, supra note 107. Under the latest plan promulgated by the conservative Canadian government,
108

Canada will not meet its commitments under the Kyoto Protocol until 2025 rather than 2012. Environ-
mentalists Pan Harper™s Pitch on Climate, CTV.ca, June 4, 2007, available at http://www.ctv.ca/
servlet/ArticleNews/story/CTVNews/20070603/harper_g8_070604/20070604?hub=Canada (last vis-
ited May 25, 2008).
Helena Spongenberg, EU Falls Behind on Green Targets, euobserver.com, June 23, 2006, available at
109

http://euobserver.com/9/21944/?rk=1 (last visited May 25, 2008).
Europa, Climate Change: Member States Need to Intensify Efforts to Reach Kyoto Emission
110

Targets, Oct. 27, 2006, available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/
06/1488&format=HTML&aged=0&language=EN&guiLanguage=en (last visited May 25, 2008).
Id. Foreboding recent developments may make achievement of European™s longer-range objective of
111

reducing emissions by 20% below 1990 levels by 2020 increasingly unlikely. Italian Prime Minister
Silvio Berlusconi recently announced his intention to veto the EU™s proposal, and several Cen-
tral and Eastern European countries, including Poland, Bulgaria, the Czech Republic, Hungary,
Romania, and Slovakia, have expressed serious reservations about the proposal. Christian Spillmann,
Italy, Poland, Threaten to Veto EU Climate Change Plans, Yahoo! News, Oct. 15, 2008, available at
http://news.yahoo.com/s/afp/20081015/wl_afp/eusummitclimatewarmingenvironment (last visited on
Oct. 22, 2008).
Overview 17


Finally, even if the Kyoto Protocol, as originally drafted, were faithfully imple-
mented by all industrialized nations it would constitute only an extremely modest
down payment on what ultimately must be done to stabilize atmospheric concentra-
tions of greenhouse emissions. This is true for two primary reasons. First, as indicated
above, the Kyoto Protocol in its ¬rst commitment period calls for Annex I Parties
to reduce their overall greenhouse gas emissions by 5%. By contrast, stabilization of
atmospheric greenhouse gases at levels that produce no more than a 2“3—¦ C increase
in temperatures from preindustrial levels, which many climate experts cite as a
critical “climate tipping point that could lead to intolerable impacts on human well-
being,”112 will require the world community to reduce greenhouse gas emissions by
60“70%.113 Moreover, industrialized countries might have to reduce their emissions
by as much as 80% by the middle of the century if developing nations are to be
permitted some growth in their emissions levels.114
Second, the Protocol currently does not impose emissions reductions commit-
ments on developing countries, even though it is projected that by 2025 the devel-
oping world™s share of global emissions will be approximately 55%.115 Indeed, the
Netherlands Environmental Assessment Agency recently concluded that China,

Bierbaum et al., supra note 16, at xi. See also Paul Baer & Tom Athanasiou, Honesty About Dangerous
112

Climate Change, EcoEquity, available at http://www.ecoequity.org/ceo/ceo_8_2.htm#dangerous (last
visited May 25, 2008); B.C. O™Neill & M. Oppenheimer, Climate Change - Dangerous Climate Impacts
and the Kyoto Protocol, 296 Sci. 1971“72 (2002). However, it needs to be emphasized that even lower
temperature increases will have serious implications. For example, a 1—¦ C increase in atmospheric
temperatures will seriously imperil the world™s coral reef ecosystems, as well as many other ecosystems
in developing countries. Id. at 1971; Hadley Centre, Avoiding Dangerous Climate Change 14 (2005),
available at http://www.stabilisation2005.com/Steering_Commitee_Report.pdf (last visited May 25,
2008).
Jonathan Pershing & Fernando Tudela, A Long-Term Target: Framing the Climate Effort, in Beyond
113

Kyoto: Advancing the International Effort Against Climate Change (Joseph E. Aldy et al.
eds., 2004), Pew Center on Global Climate Change, Q&A: Kyoto Protocol 23, available at
http://www.pewclimate.org/docUploads/Long%2DTerm%20Target%2Epdf (last visited May 25, 2008)
(Stabilization of atmospheric carbon dioxide levels at 550 parts per million, yielding an estimated 1.6“
2.9—¦ C increase in temperatures from preindustrial levels, necessitates 60% reduction in emissions).
A recent study by Hare and Meinshausen suggests that the cutbacks may have to be even more dra-
matic. The study concludes that there is a 66% risk of overshooting a 2—¦ C increase of temperatures
from preindustrial levels even if atmospheric concentrations of carbon dioxide are held to 450 parts
per million. Bill Hare & Malte Meinshausen, How Much Warming Are We Committed to and How
Much Can be Avoided?, 75 Climatic Change 111, 129 (2006). The authors conclude that “[o]nly
scenarios that aim at stabilization levels at or below 400 ppm CO2 equivalence (∼ 350ppm CO2 ) can
limit the probability of exceeding 2—¦ C to reasonable levels . . . ” Id. at 137. Even stabilization at 650ppm
CO2 equivalence would require reductions of approximately 50% by 2100. Detlef P. van Vuuren et
al., Stabilizing Greenhouse Gas Concentrations at Low Levels: An Assessment of Reduction Strategies
and Costs, 81 Climatic Change 119, 120 (2007).
David D. Doniger, Antonia V. Herzog & Daniel A. Lashof, An Ambitious, Centrist Approach
114

to Global Warming Legislation, 314 Sci. 764, 764 (2006); Ecofys GmbH et al., WWF Cli-
mate Scorecards: Comparison of the Climate Performance of the G8 Countries 4, available at
http://www.panda.org/downloads/climate_change/g8scorecardsjun29light.pdf (last visited May 25,
2008).
Kevin Baumert & Jonathan Pershing, Climate Data: Insights and Observations, Pew Center on Global
115

Climate Change 16 (2004). Overall, the Parties to the Kyoto Protocol only generate approximately
one third of the world™s greenhouse emissions. Pew Center on Global Climate Change, supra note
16, at 36.
William C. G. Burns and Hari M. Osofsky
18


with fossil fuel consumption in recent years rising at a blistering pace of more than
9% annually,116 surpassed the United States in 2006 in aggregate carbon dioxide
emissions.117
Given the modest commitments undertaken under Kyoto, and the dif¬culties of
controlling the rapid growth of emissions in the United States and large developing
States, it is not surprising that the U.S. Energy Information Agency recently pro-
jected that worldwide emissions under Kyoto would be 43,000 MMT in 2030, only
slightly below the business as usual projection of 43,676 MMT.118 Overall, climate
researchers have estimated that full implementation of Kyoto would reduce pro-
jected warming in 2050 by only about one-twentieth of one degree and projected sea
level rise by a mere 5 millimeters.119 By contrast, recent research indicates that if the
world community wishes to have a reasonable prospect for avoiding temperatures
increases beyond 2—¦ C, global energy emissions must be stabilized by 2015 and rapidly
decline by 6“8 per cent annually between 2020 and 2040, and full decarbonization
by 2050.120
The glacial pace of progress under the UNFCCC and the Kyoto Protocol has
led to growing despair by many actors, including nongovernmental organizations
(NGOs), state and local governments in the United States, and in many nations,
especially Southern States that are particularly vulnerable to the threat of climate
change. Indeed, the trepidation of such stakeholders has been exacerbated over the
course of the Bush administration by the failure of the United States to signal its
willingness to reengage in the Kyoto process,121 as well as tepid support for future
commitments by other major greenhouse gas“emitting States, including China,
Russia, and India.122 Particularly disconcerting was the successful opposition by the

Robert Collier, China About to Pass U.S. as World™s Top Generator of Greenhouse Gases,
116

SFGate.com, Mar. 5, 2007, available at http://sfgate.com/cgi-bin/article.cgi?¬le=/c/a/2007/03/05/
MNG18OFHF21.DTL&type=printable (last visited May 25, 2008). China™s carbon dioxide emis-
sions over the period of 2001“2006 were almost 350% higher than the emissions of the United States,
Canada, the European Union, South Korea, Australia, and New Zealand combined. Id.
Press Release, Netherlands Environmental Assessment Agency, Chinese CO2 Emissions
117

in Perspective (June 22, 2007), available at http://www.mnp.nl/en/service/pressreleases/2007/
20070622ChineseCO2emissionsinperspective.html (last visited May 25, 2008).
Michael Gerrard, Introduction and Overview, in Global Climate Change and U.S. Law 13 (Michael
118

B. Gerrard ed., 2007).
Martin Parry et al., Buenos Aires and Kyoto Targets Do Little to Reduce Climate Change Impacts, 8(4)
119

Global Envtl. Change 285, 285 (1998). See also Mustafa H. Babiker, The Evolution of a Climate
Regime: Kyoto to Marrakech and Beyond, 5 Envtl. Sci. & Pol™y 195, 202 (2002).
Kevin Anderson & Alice Bows, Reframing the Climate Change Challenge in Light of Post-2000, Phil.

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