Published by De Gruyter

Volume 14 Issue 1 - Reaching International Cooperation on Climate Change Mitigation

January 2013

Issue of Theoretical Inquiries in Law

Contents
Journal Overview

January 1, 2013

Mitigation, Adaptation or Climate Engineering?

Guy P. Brasseur, Claire Granier

Page range: 1-20

Abstract

Concerns about climate change have led to the development of legal frameworks, including national regulations and international protocols to limit the emissions of greenhouse gases. Current mitigation measures, however, may not be sufficient to limit global warming to an average of 2°C since the pre-industrial period. Other approaches may therefore be required, including adaptation measures and climate engineering initiatives. Only a few legal frameworks are available to regulate adaptation initiatives and to constrain climate engineering approaches whose potential side-effects are not always sufficiently well known. This Article provides a brief overview of scientific progress made to better assess climate change and addresses possible societal responses, including the mitigation, adaptation and climate engineering strategies. It provides a brief summary of current knowledge about expected climate change as a basis for the definition of future international climate policies and associated legal frameworks.

January 1, 2013

The Montreal Protocol Protection of Ozone and Climate

David W. Fahey

Page range: 21-42

January 1, 2013

Two Stories About E.U. Climate Change Law and Policy

Navraj Singh Ghaleigh

Page range: 43-82

Abstract

The European Union has styled itself a global leader in climate action. In so doing, it presents itself as responding to science and public concern and its historic responsibilities. In terms of its means of response, the European Union’s emissions trading scheme (EU ETS) has been the primary instrument. A rational response to liberal economic theory, the EU ETS is often trumpeted as a cost-effective success story internally and as a model to be adopted externally. This optimistic narrative is challenged herein.

January 1, 2013

Orchestrating a Low-Carbon Energy Revolution Without Nuclear: Germany’s Response to the Fukushima Nuclear Crisis

Miranda A. Schreurs

Page range: 83-108

Abstract

In October 2010, the German conservative ruling coalition (Christian Democratic Union/Christian Socialist Union (CDU/CSU) and Free Democratic Party (FDP)) passed a law permitting the extension of contracts for Germany’s seventeen nuclear power plants. This policy amended a law passed in 2001 by a Social Democratic Party (SDP) and Green Party majority to phase out nuclear energy by the early 2020s. The explosions in the nuclear reactors at the Fukushima Daiichi nuclear power facility, however, resulted in a decision to speed up the phaseout of nuclear energy. The nuclear meltdowns in Japan sent hundreds of thousands of protesters onto the streets. Angry voters made their disillusionment with the nuclear politics of the conservative government coalition clear in local elections. The federal government responded by setting up an Ethics Commission for a Safe Energy Supply, which recommended an end to nuclear energy and a shift to a renewable energy-based economy. Within months of the Fukushima disaster, the government had permanently shut down eight of the country’s oldest nuclear power plants and issued a schedule for the phased shutdown of the remaining nine plants by 2022. In addition, the government reaffirmed its climate change plans, which call for a reduction in greenhouse gas emissions by around forty percent of 1990 levels by 2020 and eighty percent by 2050. Thus, out of a crisis, the German government is forging an opportunity to become a global leader in the promotion of new renewable energies, energy efficiency, and greenhouse gas emission reductions. In Japan, the nuclear crisis has also weakened support for nuclear energy, but with a strong industrial coalition calling for its continued use, both for energy stability and in response to climate change, a complete nuclear phaseout is less certain, at least in the short term.

January 1, 2013

Transformations in Brazilian Deforestation and Climate Policy Since 2005

Eduardo Viola

Page range: 109-124

Abstract

In the five-year period 2005-2009, Brazil dramatically reduced carbon emissions by about twenty-five percent and at the same time maintained a stable economic growth rate of 3.5% annually. This combination of economic growth and emissions reduction is unique in the world. It was driven by a dramatic reduction in deforestation in the Amazonian forest and the Cerrado Savannah. This shift empowered the sustainability social forces in Brazil to the point that in December 2009 Congress passed a very progressive law internalizing carbon constraints and promoting the transition to a low-carbon economy. The Article first analyzes the Brazilian position in the global carbon cycle and public policies since 2005, including the progressive shift in 2009 and the contradictory dynamic in 2010-2012. It then analyzes the potential for a transition to a low-carbon economy in Brazil and the impact on global climate governance.

January 1, 2013

An Analytical Comparison of Various Influential Models of China’s Future Greenhouse Gas Emissions and Global Role

Yu Jie, Yin Le

Page range: 125-150

Abstract

Projections regarding future energy consumption and carbon emissions are crucial when the aim is to design policy for global emissions control. What is the different models’ take on the projections for global emissions and, in particular, China’s role in the global picture? Do they anticipate similar results? If not, why are the results different? What key parameters do they use, and how do they affect the final findings? This Article attempts to answer these questions and, starting from there, to further analyze what it means for the challenge of China’s future emissions reduction potential and for the overall goal of global emissions reduction.

January 1, 2013

Differentiation in the Emerging Climate Regime

Lavanya Rajamani

Page range: 151-172

Abstract

The climate regime, comprising the Framework Convention on Climate Change of 1992 and the Kyoto Protocol of 1997, contains elements of prescription for and leadership of developed countries and differentiation in favor of developing countries. The nature and extent of differentiation in favor of developing countries in the climate regime, however, has remained contentious through the years. While there is a shared understanding among states that they have common but differentiated responsibilities in addressing climate change, there is little agreement on the formulae for differentiating between states in doing so. This Article argues that the outcomes of international climate negotiations in recent years, in particular the Copenhagen Accord of 2009 and the Cancun Agreements of 2010, offer a distinctive vision of differential treatment. Through these instruments, the international community appears to be moving from differentiation in favor of developing countries towards differentiation or flexibility for all countries, as well as towards increasing parallelism between developed and developing countries. The Durban Platform of 2011, which launches a new process to negotiate a post-2020 agreement, confirms this trend, setting the scene for the erosion of differential treatment in the future/post-2020 climate regime. This Article explores the nature of differentiation, as it is evolving, in the emerging climate regime, in particular as it relates to mitigation obligations, and the impact this is likely to have on the design, ambition, reach and rigor of the emerging climate regime.

January 1, 2013

In-Country Disparities in Greenhouse Gas Emissions and Their Significance for Politicizing a Future Global Climate Pact

Dan Rabinowitz

Page range: 173-190

Abstract

Mainstream thought on environmental justice emphasizes disparities between populations in terms of their exposure to environmental risks. Climate change has recently shifted attention from vulnerability to responsibility, with much of the research and dissemination of results accentuating differential contributions on the part of various groups to CO2 emissions and their accumulation in the atmosphere. But efforts to monitor, mitigate and adapt to climate change are largely premised on sovereign states as the main units of analysis, and on comparisons between them as the primary tool for designing policy. This approach, which reifies climate change as a technical, distant and detached issue, arrests the long overdue politicization of the atmosphere. This Article, which uses data from Israel on differentiated levels of CO2 emissions by income decile, suggests that hitherto overlooked in-country disparities in CO2 emissions are an integral part of the problem and of potential ways to tackle it. Offering a critique of attempts to use distributive justice as a basis for a global climate pact, it calls for further in-country analysis of emissions and a better understanding of how the outcomes of those attempts might become relevant to more people globally. Such insights, it argues, are essential for climate policies to become politicized and thus gain prominence and urgency in political debates, campaigns, and eventually on the executive agenda of all levels of government.

January 1, 2013

Close Examination of the Principle of Global Per-Capita Allocation of the Earth’s Ability to Absorb Greenhouse Gas

Yoram Margalioth, Yinon Rudich

Page range: 191-206

Abstract

In this Article we attempt to narrow the gap between developed and developing countries’ respective perceptions of justice in the context of climate change. We show that, in spite of its intuitive appeal, the equal per-capita argument is not grounded in any general moral principle and therefore cannot provide an answer to the question regarding what would be a fair allocation of emission rights. We argue that the underlying moral theory is global distributive justice theory, which unfortunately can only be of very limited help. We briefly discuss the various particular principles/considerations that are offered in the literature either in support or in criticism of the equal percapita allocation and find that upon close analysis they generally support the developing countries’ view, but not a per-capita allocation of emission rights. We conclude with a practical suggestion.

January 1, 2013

Unilateral Carbon Taxes, Border Tax Adjustments and Carbon Leakage

Joshua Elliott, Ian Foster, Sam Kortum, Gita Khun Jush, Todd Munson, David Weisbach

Page range: 207-244

Abstract

We examine the impact of a unilateral carbon tax in developed countries, focusing on the expected size of carbon leakage (an increase in emissions in non-taxing regions as a result of the tax) and the effects on leakage of border tax adjustments. We start by analyzing the problem using a simple two-country, three-good general equilibrium model to develop intuitions. We then simulate the expected size of the effects using a new, open-source, computable general equilibrium (CGE) model. We analyze the extent of emissions reductions from a carbon tax in countries that made commitments under the Kyoto Protocol (Annex B countries), the expected carbon leakage, and the effects of border tax adjustments on carbon leakage, all relative to our baseline projections for emissions. We also perform extensive sensitivity tests on the parameters of the CGE model. Finally, we consider the effects of imperfect border tax adjustments on leakage, such as global or regional schedules of border taxes.

January 1, 2013

Where There’s a Will There’s a Way – A Theoretical Analysis of the Connection Between Social Policy and Environmental Performance

Dorit Kerret, Renana Shvartzvald

Page range: 245-272

Abstract

Fostering international environmental cooperation requires understanding and addressing the influences of national policies on environmental performance. This Article focuses on one potential influence, namely, social policy. Drawing on multiple disciplines, the Article offers an analytic model to explain connections between social policy and environmental performance, with a particular focus on GHG emissions performance. It shows why social policy should improve the environmental performance of nations. The Article also presents theoretical reasoning for potential differences in the effects of social policy on environmental performance, depending on the relevant categorization of the latter as human, ecological, or global. Particularly the effect of social policy on GHG environmental performance is related to its level of global connectedness.

January 1, 2013

Building a More Effective Global Climate Regime Through a Bottom-Up Approach

Richard B. Stewart, Michael Oppenheimer, Bryce Rudyk

Page range: 273-306

Abstract

This Article presents an innovative institutional strategy for global climate protection, quite distinct from, but ultimately complementary to and supportive of the currently stalled UNFCCC climate treaty negotiations. The bottom-up strategy relies on a variety of smallerscale transnational cooperative arrangements, involving not only states but sub-national jurisdictions, firms, and CSOs, to undertake activities whose primary goal is not climate mitigation but which will achieve greenhouse gas reductions as an inherent byproduct. This strategy avoids the inherent problems in securing an enforceable treaty to secure the global public good of climate protection by mobilizing other incentives - including economic self-interest, energy security, cleaner air, and furtherance of international development - to motivate such actors to cooperate on actions that will also benefit the climate. These bottom-up regimes will contribute to global climate action not only by achieving emissions reductions in the short-term, but also by linking the bottom-up regimes to the UNFCCC system through greenhouse gas monitoring and reporting systems. In these ways, the bottom-up strategy will help secure eventual agreement on a global climate treaty.

January 1, 2013

International Governance of Climate Engineering

Edward A. Parson, Lia N. Ernst

Page range: 307-338

Abstract

Continued failure to limit emissions of carbon dioxide and other greenhouse gases that are causing global climate change has brought increased attention to climate engineering (CE) technologies, which actively modify the global environment to counteract heating and climate disruptions caused by elevated greenhouse gases. Some proposed forms of CE, particularly spraying reflective particles in the upper atmosphere to reduce incoming sunlight, can cool the average temperature of the Earth rapidly and cheaply, thereby substantially reducing climate-related risks. Yet CE interventions provide only imperfect corrections for the climatic and other environmental effects of elevated greenhouse gases, and carry their own environmental risks. Moreover, they may also increase other risks, by weakening political support for essential emissions reductions or providing new triggers for international conflict. These technologies thus require international governance, but also pose novel and severe challenges to current international laws and institutions. Effective governance of CE will require a capacity to make decisions regarding the conditions, if any, under which specific interventions are authorized, plus realtime operational oversight of any interventions that are conducted. Decision processes must be effectively linked with scientific research and assessment, and with institutions to manage and respond to threats of CE-related conflict. We advance preliminary suggestions to address two priority areas for early investigation: how international cooperation on early CE research can help develop shared norms that can grow robust enough to support future decision needs; and how early research and development on CE can be made to complement and encourage, rather than undermine, parallel efforts to reduce climate risks by cutting emissions.

About this journal

Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

Theoretical Inquiries in Law appears in several databases, including Lexis, Westlaw, LegalTrac, and HeinOnline.

At present, Theoretical Inquiries in Law is ranked third for "impact factor" by the Washington and Lee most cited legal periodicals list in the "Jurisprudence and Legal Theory" category, ahead of such journals as Law and Social Inquiry, Law and Society Review, Legal Theory, Canadian Journal of Law & Jurisprudence and Oxford Journal of Legal Studies.

Volume 14 Issue 1 - Reaching International Cooperation on Climate Change Mitigation

Issue of Theoretical Inquiries in Law

Masthead

Introduction

Mitigation, Adaptation or Climate Engineering?

Abstract

The Montreal Protocol Protection of Ozone and Climate

Two Stories About E.U. Climate Change Law and Policy

Abstract

Orchestrating a Low-Carbon Energy Revolution Without Nuclear: Germany’s Response to the Fukushima Nuclear Crisis

Abstract

Transformations in Brazilian Deforestation and Climate Policy Since 2005

Abstract

An Analytical Comparison of Various Influential Models of China’s Future Greenhouse Gas Emissions and Global Role

Abstract

Differentiation in the Emerging Climate Regime

Abstract

In-Country Disparities in Greenhouse Gas Emissions and Their Significance for Politicizing a Future Global Climate Pact

Abstract

Close Examination of the Principle of Global Per-Capita Allocation of the Earth’s Ability to Absorb Greenhouse Gas

Abstract

Unilateral Carbon Taxes, Border Tax Adjustments and Carbon Leakage

Abstract

Where There’s a Will There’s a Way – A Theoretical Analysis of the Connection Between Social Policy and Environmental Performance

Abstract

Building a More Effective Global Climate Regime Through a Bottom-Up Approach

Abstract

International Governance of Climate Engineering

Abstract