Treaties in the U.S. Legal System: Implications for International
Agreements on Climate Change1
William Anthony Smithson, MD, 3L
II
A. Environmental Protection as a Human Right: Stockholm, Rio and Aarhus ................. 2
B. The Problem: Global Warming Caused By Human Activity ......................................... 5
C. The Supreme Court and Climate Change……………………………………… 7
D. The Kyoto Convention-What Happened? ..................................................................... 9
E. Transboundary Air Pollution ....................................................................................... 11
F. Environmental Treaties That Have Worked ................................................................. 13
1. Acid Rain.................................................................................................................. 14
2. Ozone ....................................................................................................................... 15
3. Applying the lessons learned acid rain and ozone layer problem solving .............. 16
G. Court Opinions as Predictors of the Domestic Legal Effect of Environmental Treaties
........................................................................................................................................... 18
1. Air Pollution ............................................................................................................ 18
2. Ozone ....................................................................................................................... 19
3. Acid rain cap-and-trade ............................................................................................ 20
H. Kyoto To Bali To Poznan: Can You Get There From There? .................................... 21
I. Why Do Some Societies Make Disastrous Decisions? ................................................ 23
J. Which Road Map? ........................................................................................................ 24
K. Courts and Congress ................................................................................................... 26
L. Conclusion ................................................................................................................... 27
1
This essay is Part II of a two part paper on the status of treaties in the US legal system as applied to
international responses to climate change. It is submitted separately to fulfill requirements of a course on
Environmental Law at U.S.D. School of Law, Fall Semester 2008, Prof. Elizabeth Burleson.
1
A. Environmental Protection as a Human Right: Stockholm, Rio and
Aarhus
The names of the Declarations, Conventions, Protocols, Mandates and Conferences
dealing with the Environment are a virtual atlas of the world reflecting our global
interconnections. Modern environmental law started with the 1972 Stockholm Declaration
which was issued after a Conference in that city. The declaration is aspirational but it
articulated a human right to a preserved environment for the world to contemplate.
Stockholm was a first step in regulating the global commons. Prior to Stockholm, the fact
that human activity could permanently damage the world was hardly considered even in the
context of nuclear war. Stockholm established the United Nations Environment Programme
(UNEP) which is a permanent Secretariat that organizes Conferences to address specific
problems. Dozens of treaties have resulted affecting everything from trade in elephant tusks
(CITES) to dumping of pollution into the Mediterranean Sea (Barcelona convention).2 In
1988, the UNEP and the World Meteorological Organization cofounded the
Intergovernmental Panel on Climate change whose scientific assessments have been
instrumental in moving world diplomats toward agreements which are the basis for the
international response to anthropogenic global warming.3 Thus the Stockholm Declaration
laid the foundation for effective international response to the threat of climate change,
2
P. W. BIRNIE & A.E. BOYD, INTERNATIONAL LAW AND THE ENVIRONMENT 1-33, 414 (Oxford University
Press, 2nd ed. 2002).
3
Intergovernmental Panel on Climate Change, About IPCC, available at http://www.ipcc.ch/about/index.htm
(last visited Oct. 25, 2008).
2
The simple declaration from Stockholm is set out here:4
Stockholm principle 1.
Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity
and well-being, and he bears a solemn responsibility to protect and improve
the environment for present and future generations. In this respect, policies
promoting or perpetuating apartheid, racial segregation, discrimination,
colonial and other forms of oppression and foreign domination stand
condemned and must be eliminated.5
The Stockholm Declaration did not mention climate but it created the institutional
structure to address it when it presented itself as the overarching environmental problem of
our time. It is distinctive in linking other human rights with the responsible use of the
earth's resources. Principle 2 acknowledges responsibility for future generations and
principle 8 recognizes the human right to economic and social development.6
The declaration of Rio de Janeiro on climate change included a clause which is
important to consider. Rio principle 10 recognized the need for participation by people in
the decisions affecting climate change because of the far reaching effects on every aspect of
economic life. Principle 10 is set out here:
Environmental issues are best handled with participation of all concerned
citizens, at the relevant level. At the national level, each individual shall have
4
Declaration of the United Nations Conference on the Human Environment, Stockholm 1972, available at
http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503 (Oct. 4, 2008).
5
6
Id.
Id.
3
appropriate access to information concerning the environment that is held by
public authorities, including information on hazardous materials and
activities in their communities, and the opportunity to participate in decisionmaking processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access to
judicial and administrative proceedings, including redress and remedy, shall
be provided. 7
The Rio Principle 10 was the forerunner of the Aarhus, Denmark Convention of the UN
Economic Commission for Europe. That convention seeks to systematically incorporate
public comment and input into the process of climate change mitigation. Article 1 of
Aarhus is set out here:
In order to contribute to the protection of the right of every person of present
and future generations to live in an environment adequate to his or her health
and well-being, each Party shall guarantee the rights of access to
information, public participation in decision-making, and access to justice in
environmental matters in accordance with the provisions of this Convention.8
The principles in the Stockholm, Rio and Aarhus Declarations are consistent with the
democratic political process in the United States. Programs strong enough to affect climate
change are going to require changes in our economic life and will require broad support
from the public before any agreement with legal effect will be possible. International
7
Rio Declaration on Environment and Development available at
http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163 (Oct.
4, 2008).
8
United Nations Economic Commission for Europe, The Aarhus Convention, available at
http://www.unece.org/env/pp/ (last visited Oct. 25, 2008).
4
agreements which will have legal effect in the United State are best achieved through the
political branches including both Houses of Congress.9
B. The Problem: Global Warming Caused By Human Activity
James Hansen, an American working for NASA, the leading scientist in this field,
began with the observation that Venus is 867 degrees Fahrenheit on its surface and so far as
we know human life is impossible there. Venus is similar to Earth in size and distance from
the sun. So why is there such a huge difference in temperature? The answer is Venus has
an atmosphere containing 96 per cent carbon dioxide (CO2) which acts as an insulator
allowing the Sun's radiant energy in but blocks the escape of heat.10 Hansen was intrigued
and began to investigate the role of CO2 in Earth's atmosphere. He learned that a CO2
concentration of about 280 parts per million (ppm) is necessary to prevent too much heat
from escaping. Much less and we would have a frozen world. But he observed that the
concentration was on the increase and over a very short time was causing a rise in the
average temperature of the Earth. Between 1906 and 2005 the average temperature on
Earth has increased 0.74degrees Celsius. Much of the increase is occurring in the Artic and
the melting of ice there is proceeding at a rapid pace. This has coincided with an increase in
atmospheric CO2 concentration to 379 ppm (in 2005) which is high enough to produce
more warming. The U.N.'s Intergovernmental Panel on Climate Change concludes that the
9
See supra Part I.
Elizabeth Kolbert, The Climate of Man-II, The New Yorker, May 2, 2005 available at
http://www.wesjones.com/climate2.htm (9/25/08)
10
5
CO2 is from human activity and that significant reductions in its introduction into the
atmosphere are needed to avoid catastrophe.11
During roughly the same time period global warming became an established idea,
the concept of Nuclear Winter has competed for attention from world leaders. That theory
is that nuclear war will produce so much smoke and dirt in the atmosphere that the sun's
rays will be blocked and the world will freeze over and all life eradicated. It was initially
modeled and published as the TTAPS study, named after the authors.12 It was updated last
year in an article in Science. In that article the authors again show that even limited nuclear
war will cause the Earth to freeze over.13 Backlash to both ideas is evident from the content
and tone of those who negate the seriousness of the global warming threat.14
When it comes to our response to climate change, leadership from our authority
figures will be crucial in determining the outcome. The problem is still abstract for many.
CO2 is invisible and the melting of glaciers and sea ice is remote from the daily lives of
most people. Yet, the threats are real however abstract and mitigation still possible. But it
11
IPCC Fourth Assessment Report-Summary for Policymakers at 2-6 (Nov. 17, 2007) available at
http://www.ipcc.ch/ (Oct. 5, 2008).
12
R.P. Turco, O.B. Toon, T.P. Ackerman, J.B. Pollack, & Carl Sagan, Nuclear Winter: Global Consequences
of Multiple Nuclear Explosions, 222 SCIENCE 1283 (1983) abstract available at
http://www.sciencemag.org/cgi/content/abstract/222/4630/1283 (Oct. 25, 2008).
13
Owen B. Toon, Alan Robock, Richard P. Turco. Charles Bardeen, Luke Oman & Georgiy L. Stenchikov,
Consequences of Regional Scale Nuclear Conflicts, 315 SCIENCE 1224 (2007) available at
http://climate.envsci.rutgers.edu/pdf/SciencePolicyForumNW.pdf (Oct. 19, 2008).
14
Bruce Thompson, Climate of Fear: From Nuclear Winter to Global Warming, AMERICAN THINKER, Aug.
24, 2006 available at http://www.americanthinker.com/2006/08/climate_of_fear_from_nuclear_w.html
(Before there was Global Warming Theory to scare the public into rash action, there was Nuclear Winter
Theory. The two theories are contradictory, but both were peddled by the political left, and both used some
similar rhetorical and political tactics) (emphasis added).
6
will require political and legal consensus within the U.S. before we will be able to negotiate
international agreements with binding legal effect in the United States.15
One important authority figure in the U.S. is the Supreme Court. Political scientists
have surveyed public opinion after major decisions by that Court and found they move
public opinion especially when they accepted by "elites."16 Other research shows that public
opinion is most influenced by Court opinions on issues with which they did not have strong
preformed opinions.17 Certainly legal professionals know the importance of having
Supreme Court precedent on their side of an issue. We will look to recent decisions on
climate change issues as a predictor of how the legal process might be used to influence
public opinion and facilitate effective international agreements.
C. The Supreme Court and Climate Change
Massachusetts v. Environmental Protection Agency18 is the only Supreme Court
case containing the terms "greenhouse gases" or "global warming."19 Massachusetts and 12
other states, 3 cities, one protectorate and 13 private interest groups sued the E.P.A.
demanding the agency regulate CO2 emissions from new automobiles. Ten states, six trade
15
See generally, Elizabeth Burleson, A Climate of Extremes: Transboundary Conflict Resolution, 32 VT. L.
REV. 477 (2008).
16
Kevin Scott and Kyle Saunders, Courting Public Opinion: Supreme Court Impact on Public Opinion
Reconsidered, Presented at the Midwest Political Science Association, April 20, 2006, available at
http://www.allacademic.com/meta/p139252_index.html (Oct. 5, 2008).
17
Craig Cummings and Robert Y. Shapiro, Can the Supreme Court Lead Public Opinion? A Novel
Experiment in Survey Design, in PUBLIC OPINION PROS-AN ONLINE MAGAZINE FOR THE POLLING
PROFESSIONAL (Mar. 2006) available at
http://www.publicopinionpros.com/from_field/2006/mar/cummings.asp (Oct. 5, 2008).
18
127 S.Ct. 1438 (2007).
19
Westlaw term search in Supreme Court database Sept. 25, 2008.
7
associations and the Bush administration generally opposed the suit on the grounds that the
petitioners had no standing to sue.20 A 5-4 majority ruled that there was standing based on
the loss of property from rising oceans and directed the E.P.A. to formulate the requested
regulations. The ruling was based on the majority reading of the Clean Air Act of 1967 as
amended several times.21 The dissent written by Chief Justice Roberts disagreed on
jurisdictional issues of standing. Because of the cogency of his argument, it will probably
impossible be to bring again such a suit even if the Justices remain split 4 to 4 on the
Liberal-Conservative divide (with one "swing vote"). Even the majority acknowledged the
"serious" jurisdictional argument implying that granting of certiorari was based on wanting
to weigh in on the serious underlying issue of climate change.
Justice Stevens notes a well documented rise in global temperatures coinciding and
causally related to a rise in atmospheric carbon dioxide related to human activities; driving
cars being one of those activities.22 Neither Chief Justice Roberts nor Justice Scalia actually
disagreed with the fact of climate change caused by human activity. They thought it was
not justiciable and should be addressed by political process.23 The EPA had previously
reached conclusions reflecting scientific consensus but declined to act because the issue was
too political for administrative solutions within its power to achieve.24
The Supreme Court has ruled that the whole subject of climate change has legal
credibility. We have advanced from a stance that the whole thing is nonsense to arguments
20
The procedural objection was motivated by general opposition to action on greenhouse gas emissions
largely on economic grounds. See Crossroads on Global Warming, N.Y. TIMES, June 3, 2002 available at
http://query.nytimes.com/ (search Opinion data base with term "global warming" result 11) (Oct. 5, 2008).
21
Mass. v. E.P.A., supra note 18 at 1447.
22
Id. at 1446 et seq.
23
Id. at 1463 et seq. (for Scalia CO2 is the "alleged" cause of global climate change at 1477).
24
Id. at 1450.
8
over what to do about it. It is very important to have this respected authority say this at this
time.
After the decision, the E.P.A. sought to comply by drafting regulations designed to
decrease CO2 emissions from cars. At first, the Bush White House appeared to be
complying but then withdrew support because of pressure from the oil industry.25 The
action has eliminated the possibility of greenhouse gas emission regulation by this
Executive and his agencies. Even if a more environmentally friendly President is elected in
2008, the Congress needs to pass new legislation in this area if it expects legal permanence.
That is the political process. The Supreme Court is nearly certain to find such legislation
within the authority of Congress given the opinions expressed by majority and dissenters in
Massachusetts v. E.P.A.
D. The Kyoto Convention-What Happened?
In 1990, The U.N.'s Intergovernmental Panel on Climate Change reported a
scientific consensus that global warming was real and that action was needed to prevent
serious damage to the environment. The report was taken seriously and in 1991, the UN
created an Intergovernmental Negotiating Committee for a Framework Convention on
Climate Change (INC). The U.S. participated in the negotiations but took positions against
enforceable greenhouse gas emission targets and timetables all the while expressing
skepticism about the science and concern for the economic well being of Americans.26
25
Andrew C. Revkin, More on Why White House Blocked CO2 Curbs, NY Times July 18, 2008 available at
http://dotearth.blogs.nytimes.com/2008/07/18/more-on-why-white-house-blocked-co2curbs/?scp=5&sq=EPA%20Chief%20and%20carbon%20emissions&st=cse (Sept. 25, 2008).
26
BIRNIE & BOYLE supra note 2 at 524.
9
In 1992, the UN Framework Convention on Climate Change (UNFCCC) was
adopted by the INC and opened for signature in Rio de Janeiro. George H.W. Bush signed
for the U.S. in 1992 and the Senate approved the convention by unanimous vote only 4
months later. Eventually the UNFCCC was ratified by 190 countries. It was clear that the
Rio Convention was merely aspirational and soon the Berlin Mandate was adopted which
committed the Convention's governing Conference of the Parties (COP) to a new
negotiating process with actual commitments to reduce emissions. The process started by
the Berlin Mandate resulted in the Kyoto Protocol in 1997. This protocol had quantitative
limits and deadlines but was fatally flawed by its exemption of China, India and South
Korea because they were classified as developing countries and thus entitled to emit
unchecked until they caught up with the E.U. and the U.S.27
But there had been a sea change in the Senate. It was now dead set against the Kyoto
agreement even though it had approved the process that led to it. Even Paul Wellstone, the
liberal Democratic Senator from Minnesota, signed the Byrd-Hagel Resolution which
torpedoed the Kyoto Treaty. The Resolution stated in part that:
Whereas the exemption for Developing Country Parties is inconsistent with
the need for global action on climate change and is environmentally flawed;
Whereas the Senate strongly believes that the proposals under negotiation,
because of the disparity of treatment between Annex I Parties and
Developing Countries and the level of required emission reductions, could
result in serious harm to the United States economy, including significant job
loss, trade disadvantages, increased energy and consumer costs, or any
combination thereof; and
27
Deborah Paulus-Jagric, Update: Global Warming: A Comparative Guide to the E.U. and the U.S. and
Their Approaches to the U.N. Framework Convention on Climate Change and the Kyoto Protocol, at her note
5 available at http://www.nyulawglobal.org/globalex/Climate_Change_Kyoto_Protocol1.htm (last visited
Oct.5, 2008).
10
Whereas it is desirable that a bipartisan group of Senators be appointed by
the Majority and Minority Leaders of the Senate for the purpose of
monitoring the status of negotiations on Global Climate Change and
reporting periodically to the Senate on those negotiations: Now, therefore, be
it
Resolved, that it is the sense of the Senate that-(1) The United States should not be a signatory to any protocol to, or other
agreement regarding, the United Nations Framework Convention on Climate
Change of 1992, at negotiations in Kyoto in December 1997, or
thereafter…28
The vote was 95 for the resolution with 5 not voting. Opinion in the Senate had
totally reversed in 5 years. In 2001, President George W. Bush formally withdrew the
United States from the Kyoto Convention. It was never formally submitted to the Senate
for ratification.29 As Senator Hagel stated: "[t]he credibility of the United States is not
enhanced when the administration negotiates a treaty that has no hope of ratification in the
U.S. Senate."30
It is in the interest of the United States to enter into a new round of negotiations to
limit climate change to manageable levels. We have large areas that will flood if the
Greenland ice cap melts as appears likely.31 Given the status of the treaty process generally
as addressed in Part I32 and the history of the Rio de Janeiro and Kyoto processes, a new
approach will be needed.
E. Transboundary Air Pollution
28
S. Res.98, Expressing Sense of Senate Regarding UN Framework Convention on Climate Change, 105th
Cong., 143 Cong. Rec. S8138 available at http://thomas.loc.gov/cgi-bin/query/ (Sept. 25, 2008).
29
Paulus-Jagric supra note 27 at her note 130.
30
Cong. Rec. supra note 28 at 8115.
31
IPCC Fourth Assessment Report supra note 11.
32
See supra note 1.
11
The atmosphere has a legal status somewhere between air space which is sovereign
territory and the high seas which are common property beyond national jurisdiction and
subject to international law.33 Regional lower level pollution issues deal with air as a shared
resource (the air we breathe). The 1979 Geneva Convention on Long-Range
Transboundary Air Pollution used the shared resource concept. The Conventions on
Protection of the Ozone Layer and Climate Change have expanded the legal status of
atmosphere to a global unity regarded as the common property of and the common concern
of mankind. It is customary international law that all states share legal responsibility to
protect the atmosphere - a conclusion supported in the language of relevant Conventions
and the opinions of legal scholars.34
The oldest multilateral treaty dealing with the atmosphere is the 1979 Geneva
Convention on Long-Range Transboundary Air Pollution (LRTAP). It came into force in
1983 and has 51 parties including the United States.35 No quantitative Commitments to
reductions in specific pollutants are contained in the treaty but the definition of harm is
broad including damage to plants and animals, ecosystems, and enjoyment of the
environment. Signatories were only obligated to "endeavor to limit" air pollution within
limits of technology and economics. Despite this weak language the Convention is credited
with real improvement in air quality with reduction in the acidification caused by SO2 as
well as low level ozone. The parties have concurred in crediting the LRTAP regime with
33
BIRNIE & BOYD supra note 2 at 502.
BIRNIE & BOYD supra note 2 at 503.
35
U.N.T.S. at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=493&chapter=27&lang=en
(last visited Sept. 27, 2008).
34
12
this success. Through shared knowledge and mutual confidence in the good faith efforts of
parties, it has altered perceptions and changed policies in participating states.36
The US acceded to the LRTAP in November 1981 by Executive Agreement.
Implementation was delegated to the Environmental Protection Agency under authority of
the Clean Air Act.37 A series of amendments to the Clean Air Act have addressed
subsequent protocols promulgated under the Geneva framework and reductions in
economically important pollutants such as NOx and SO2 have resulted. The preexisting
legislative framework and the existence of an agency with statutory authority have proven
to be a workable transformer of international air quality norms into domestic law. The
political process involving both Chambers of Congress worked for air pollution of the
visible, smelly sort. The process ground to a halt with respect to CO2 because of political
consensus against it.38 The ball is in the court of Congress. The process successful with
respect to traditional air pollutants used the congressional-executive agreements track for
ratification. With the soft language of the treaty itself, it is not likely the traditional Article
II treaty ratified by a two-thirds Senate majority would have produced the same result.39
F. Environmental Treaties That Have Worked
36
BIRNIE & BOYD supra note 2 at 508-13.
Harvard Law Review Association, Discretion and Legitimacy in International Regulation, 107 HARV. L.
REV. 1099, 1103-04 and FN22 (An example is the 1990 London Revisions to the Montreal Protocol, which
Congress implemented under Title VI of the Clean Air Act of 1990).
37
38
See discussion of Mass. v. E.P.A. supra at 7.
Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United
States, 117 YALE L. J. 1236 abstract.
39
13
1. Acid Rain
Acid rain is formed when sulfur dioxide (SO2) and nitrogen oxides (NOx) combine
with water to form sulfuric and nitric acids. These two gases are formed when fossil fuels
are burned and the acids are deposited in lakes and rivers with rainfall. The resulting
acidification of waters threatened to extinguish aquatic life.40
Five supplemental protocols on emissions causing acid rain have entered into force
between 1988 and 2005.41 The United States did not participate in these protocols.42 In
1990, Congress added Title IV to the Clean Air Act enacting an acid rain trading program.
Congress acknowledged the problem and set allowances for 110 coal burning electric plants
but did not dictate how they were to limit emissions within the allowance. Allowances were
available for purchase from those utilities able to reduce emissions and remain profitable.
By 1995, a forty percent drop in emissions had resulted and the acidity of rain had dropped
by ten to twenty percent. Costs to the industry were less than expected. The estimated cost
was$750-1500 per ton but SO2 was trading for $100 per ton by 1996. Technology was
stimulated by these incentives and soon proved to be the main reason for success. The EPA
was able to monitor and enforce Title IV with relatively modest fines of $2000 per ton. The
program survived the change from Democratic to Republican control of Congress in 1994
40
Jennifer Yelin-Kefer, Warming Up to an International Greenhouse Gas Market: Lessons from the U.S. Acid
Rain Experience, 20 STAN. ENVTL. L.J. 221 at 235.
41
Multilateral Treaties Deposited with the Secretary-General at
http://treaties.un.org/Pages/Home.aspx?lang=en (linked to C.T.C.s and Status) (last visited Oct. 6, 2008).
42
BIRNIE & BOYD supra note 2 at 514.
14
which proved fatal to the progress being made on control of greenhouse gases. The lesson
learned is that cap and trade programs work within the U.S. to achieve international goals. 43
2. Ozone
Ozone (O3) is a polluting byproduct of human activity at ground level but is vital to
health and life itself in the stratosphere. It blocks radiation in the ultraviolet spectrum
which can cause cancer and cataracts and harm many life forms. Certain chemicals released
as by-products of human activity rise to the ozone layer and destroy it through chemical
reactions. As large holes in this layer were found by international scientific teams, an
international consensus was formed to control the release of these chemicals. The
procedure started with an aspirational Vienna Convention for the Protection of the Ozone
Layer. No quantitative limits were set. The United States ratified largely because it had
already started limiting chlorofluorocarbons (the most abundant of the ozone depleting
chemicals) and wanted to eliminate its competitive disadvantage by getting other countries
to limit their production.44
The Vienna Convention was followed in 1987 by the Montreal Protocol on
Substances that deplete the Ozone Layer which did set quantitative limits. This regime has
been successful in reducing emissions of the harmful compounds and recovery of the Ozone
layer is predicted by 2045. The success is attributed to six factors. First, there was a strong
scientific consensus. Second, available alternative technologies for the refrigerants that were
43
44
Yelin-Kefer supra note 40 at 234-41.
BIRNIE & BOYD supra note 2 at 518.
15
the main culprits were quickly developed. Third, a separate regime for developing
countries was agreeable to the parties. Fourth, trade sanctions limited to the controlled
products were instituted against non-parties. Fifth, a two thirds majority of the parties
instead of unanimity was required for adoption of new measures making possible a flexible
response to changing conditions. And, sixth, there was a formal non-compliance procedure,
the first multilateral environmental agreement to have this. Sanctions were mild but proved
effective.45
3. Applying the lessons learned acid rain and ozone layer problem solving
Cass Sunstein, Professor of Jurisprudence at the University of Chicago, has analyzed
the differences in the Montreal success and the Kyoto failure. The participation of the
United States is his focus since our economy is so large that any agreement that limits byproducts of economic activity is unlikely to succeed without it. He notes that the American
public was concerned enough to cut by over half the use of aerosol sprays containing ozone
depleting chemicals even before international limits were set. Ratification of the Montreal
Protocol was unanimous in the Senate. Scientific consensus, the easily visualized "hole in
the ozone" and projected epidemics of cancer and blindness were important influences on
the decision to negotiate for sharp reductions. Politically, the key factor was a cost benefit
analysis within the Reagan administration which showed a net gain of 2.2 trillion dollars if a
multilateral approach was taken opposed to a unilateral reduction. President Reagan
accepted the estimate despite its environmentalist source in the E.P.A. The economic model
developed in that agency proved to be accurate. Moreover, the U.S. negotiators were
45
Id. at 519-22.
16
willing to allow developing countries a grace period before compliance based on equitable
principles. That was acceptable in 1988 but proved to be a major reason for rejection of the
Kyoto Protocol in 1997.46
Sunstein identifies three reasons why the United States position on greenhouse gases
was the reverse of its position on ozone depleting chemicals. First, the developing nations
included China, India, and Korea had begun competing for American manufacturing jobs.
In the globalized economy, it was likely that corporations would simply move their
operations to countries with no restrictions on CO2 emission. Second, the cost-benefit
estimates showed compliance would result in a net loss of 313 billion dollars to the US
economy. Third, the projected effect of the emissions limits set in the protocol was
minimal-the costs would be incurred but the earth would continue to warm.47
Sunstein believes that any agreement to limit greenhouse gases must include the
United States and the way to achieve that goal is to address the cost-benefit ratio. First, the
cost estimates will continue to increase with time and public opinion may shift as the
melting of the world's ice sheets threatens our coastal cities.48 Second, a cap-and-trade
regime which worked to control acid rain would distribute costs in a way that uses market
mechanisms to advantage-a game Americans are good at. Third, developing countries
might agree to limit emissions if countries which had added most to the greenhouse gas
46
Cass R. Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 38 ENVTL. L. REP. NEWS & ANALYSIS
10566-69 (2008).
47
Id. at 10568-70 (Sunstein does not give the time over which these costs would be incurred but emphasizes
the perception of "not a good bargain" was the controlling factor in the debate during the second Clinton
administration).
48
IPCC Fourth Assessment supra note 11.
17
burden already in the atmosphere paid into a fund to compensate those who had added less.
Fourth, governments can impose limits which lead to technology forcing even if
quantitatively they cannot affect the amount of warming.49 Technology could spread
quickly once developed; facilitating that transfer could be part of the successor to the Kyoto
Protocol.50
G. Court Opinions as Predictors of the Domestic Legal Effect of
Environmental Treaties
1. Air Pollution
In Department of Transportation v. Public Citizen,51 the Supreme Court was
unanimous in allowing trucks from Mexico to operate in the United States without
consideration of conformity with the Clean Air Act. The president lifted a moratorium on
such trucks imposed by Congress as a result of an arbitration decision under the North
American Free Trade Act. The opinion, written by Justice Thomas, justifies the reversal of
the ninth circuit, but its effect was to choose an international agreement, NAFTA, over the
requirements of the Clean Air Act in the language set below:
FMCSA [Federal Motor Carrier Safety Administration] did not
violate NEPA [National Environmental Protection Act] or the relevant CEQ
[Council on Environmental Quality] regulations when it did not consider the
environmental effect of the increase in cross-border operations of Mexican
motor carriers in its EA [environmental assessment]. Nor did FMCSA act
improperly by not performing, pursuant to the CAA [Clean Air Act] and
49
Sunstein supra note 46 at 10572-75 (In 2006, California enacted a law that would stabilize emissions at
1990 levels by 2020).
50
Elizabeth Burleson, Energy Policy, Intellectual Property and Technology Transfer to Address Climate
Change, forthcoming in University of Iowa's Transnational Law and Contemporary Problems (2008).
51
541 U.S. 752, 773 (2004).
18
relevant regulations, a full conformity review analysis for its proposed
regulations.52
The interaction of international and domestic law and tribunals is complex and
subject to all the balance of power issues we see in any case. A treaty such as NAFTA
passed as legislation by both chambers certainly carried more weight with the Court than
would a treaty ratified by the senate alone. 53 In spite of the result adverse to air quality, we
learn the legal power of treaties passed into law by the full Congress.
In Engine Manufacturers Association v. South Coast Air Quality Management
District,54 Justice Scalia for the Court ruled that the Clean Air Act motor vehicle emission
standards preempted stricter standards of the California agency responsible for the air in the
Los Angeles basin. This opinion will be an important precedent for challenges to states that
wish to regulate green house gases independently. The dissenting Souter invoked a
presumption against preemption, a position I would usually associate with Federalism. But
the Conservative Court would seem to favor the dormant commerce clause when it comes to
greenhouse gases. If limits are to be set, they will have to come from Congress.55
2. Ozone
The Court of Appeals for the D.C. circuit wrote an interesting opinion regarding the
effect of the Montreal Protocol on domestic law. In Natural Resources Defense Council v.
E.P.A.56 the N.R.D.C. challenged an E.P.A. ruling on the allowed amounts of methyl
bromide, an ozone depleting chemical banned by the Montreal Protocol relying on certain
52
Id.
See Hathaway supra note 39 generally.
54
541 U.S. 246 (2004).
55
Id. at 266.
56
464 F.3d 1 (D.C. Cir. 2006).
53
19
agreements reached by parties to the protocol in subsequent meetings. Judge Randolph
wrote that such agreements did not have the status of law. He wrote, "[i]t is far more
plausible to interpret the Clean Air Act and Montreal Protocol as creating an ongoing
international political commitment rather than a delegation of lawmaking authority to
annual meetings of the Parties."57 Congress would have to implement any rules made by an
international body; it cannot delegate this duty to the E.P.A. according to this court.58
This opinion has not been disagreed with in any other circuit or granted certiorari by
the Supreme Court. Therefore the general outlines of a Montreal like regime on greenhouse
gases approved by Congress and regulated by the E.P.A. will likely be acceptable to the
judiciary.
3. Acid rain cap-and-trade
Only circuit court cases have dealt with the cap-and-trade regime set up by Title IV
of the Clean Air Act to limit sulfur dioxide emissions.59 The 2003 Second Circuit case
Clean Air Markets v. Pataki is on point. 60 New York's lakes were being ruined by acid
rain so the legislature passed a law which taxed a utility the amount it received for selling
an SO2 allowance to any state upwind of New York. The New York Air Mitigation Law
was struck down because it violated the Supremacy Clause of the U.S. Constitution.
In 2008 the Federal Circuit vacated an E.P.A. regulation allowing upwind states to
include purchased emissions credits in its State Implementation Plan even if compliance by
57
Id. at 9.
Id.
59
Westlaw search in AllFeds database on sulfur dioxide /p cap and trade (Sept. 28, 2008).
60
338 F.3d 82 (2d Cir., 2003).
58
20
the downwind state became impossible.61 North Carolina sued the E.P.A. over pollution it
was receiving from Alabama. Chief Judge Sentelle stated, "E.P.A.'s regionwide caps with
no state-specific quantitative contribution determinations or emissions requirements is
fundamentally flawed." The opinion supported the trading system between the states but
did not sanction using purchased credits to pollute downwind states over the set limits.62
Neither case has been granted certiorari by the Supreme Court or has been disagreed
with in subsequent Federal decisions. But neither has been cited outside its own circuit.
But we can predict that Federal cap-and-trade regimes would withstand challenge by states
on Federalism grounds. Congress need only act.
H. Kyoto To Bali To Poznan: Can You Get There From There?
Parties to the Kyoto Protocol held their thirteenth conference of the parties (COP 13)
on the island of Bali, Indonesia in December, 2007. COP 14 will be held in Poznan, Poland
in December, 2008. The Bali Conference took the IPCC Fourth Assessment as a working
hypothesis although much of the data it summarizes is not disputed. That report states that
Carbon emissions must be reduced to avoid the melting of the ice caps and flooding - the
worst of the many consequences of the warming that is inevitable. The Bali Conference
established a process called the "Road Map" to decide what the limits are to be and how
they will be apportioned among the rich and poor countries. An Ad Hoc Working Group
was formed and is to make a report in 2009 to be implemented at the Fifteenth Conference
61
62
531 F3d 896 (D.C. Cir. 2008).
Id. at 929.
21
of the Parties in 2012.63 In addition to mitigation (emissions limits), the conference
established a planning process to address disaster planning (adaptation), deforestation, clean
technology transfer and financing.64 The all important emission limits road map was
actually an agreement to agree at a future date. The barriers to that agreement are not
technical but political.
Professor Burleson attended and reported on the Bali Conference.65 She describes
the refusal of the United States delegation to agree to anything until they were actually
booed by the assembly. That seemed to produce a change of psychology and at least an
agreement to agree. Moral persuasion can be effective in close quarters and is well
described in her article. However, as we know, reversal of agreed upon plans of action are
quite possible in our system of government.66 The participation of the United States is
considered crucial to the success of any effective response to the climate change challenge.
The outcome ultimately will be decided by the American people through the political
process. An international agreement with any chance of success must have the popular
support and be implemented by the Congress as a whole. We need political climate change
before we will get national action on actual climate change.
63
Report of the Conference of the Parties on its thirteenth session [COP 13 in Bali], 1/CP.13, Bali Action
Plan available at http://unfccc.int/meetings/cop_13/items/4049.php (select COP 13 Decisions and resolutions)
(last visited Oct. 6, 2008).
64
Id. at Home page.
Elizabeth Burleson, The Bali Climate Change Conference, AM. SOC. INT'L. L. INSIGHTS (Mar. 18, 2008)
available at http://www.asil.org/insights080318.cfm (Oct. 5, 2008).
66
See supra notes 25 (Administration blocks E.P.A. regulation of CO2 emissions) and 28 (Senate Resolution
refusing the Kyoto Protocol).
65
22
I. Why Do Some Societies Make Disastrous Decisions?67
Jared Diamond's book about the collapse of civilizations concludes that
environmental degradation and refusal to change way of life are the root causes. He tells
the story of the Easter Islanders whose civilization collapsed because they cut down all the
palm tress and could no longer make canoes to go fishing or travel to other lands. The trees
were used to make platforms for giant stone statues of rival chiefs. Each chief demanded
more and bigger statues until all the trees were gone. The Island was too far from any other
civilization for assistance and the ocean going canoes that brought the first Polynesians
from the west were long gone. Famine decimated the people and only a few remained to
greet the first Europeans. The stone statues remain as mute reminders of human folly.68
The Norwegian settlers of Greenland suffered starvation because of climate change.
When the first settlers arrived around 1000 A.D., there was a warm cycle of weather which
was good for pasturing animals and growing hay. After 300 years, the climate grew colder
and by 1420 they were in the Little Ice Age. They did not adapt. They did not turn to
fishing which saved their cousins in Iceland to the East. They did not learn the ways of the
Inuit who thrive on the ice pack by hunting seals. Diamond believes that the failure to adapt
to the change in climate was a cultural taboo against change itself. The taboo was so strong
that they starved to death rather than go fishing or hunt seals. The other reason for their
collapse was their hostile relations with the Inuit and isolation from Europe.69 In other
67
JARED DIAMOND, COLLAPSE: HOW SOCIETIES CHOOSE TO FAIL OR SUCCEED 419 (Viking 2005) (The
question footnoted is the title of Chapter 14).
68
Id. at 79.
69
Id. at 211 and 248.
23
words, they refused to change their way of life and shunned friendly cooperation with the
rest of the world.
Diamond identifies four stops on a "road map" to catastrophe. First, a people may
fail to anticipate a problem before it arrives on their doorstep. Second, a group may not
perceive a problem even after the effects are evident to objective observers. Third, efforts
to solve the new set of problems may fail. And fourth, the people may fail to even try to
solve it.70
The events at the Conference in Bali show that the United States government is in
the fourth category. The reason for failure to try to solve the problem of global warming
can be summarized as "rational bad behavior." We can continue our way of life to the
detriment of the rest of the world because the elites of the country continue to reap
enormous rewards from the status quo. "Throughout recorded history, actions or inactions
by self-absorbed kings, chiefs, and politicians have been a regular cause of societal
collapses…"71 Recent events in the financial markets confirm we are also subject to the
actions of self-absorbed chief executives.72
J. Which Road Map?
The American people are showing signs that they would prefer the Bali road map to
a road map to collapse. The twelve states and 13 private organizations that brought the
70
Id. at 421.
Id. at 431.
72
James Surowiecki, The Financial Page: the Trust Crunch, THE NEW YORKER, Oct. 20, 2008, at 36.
71
24
lawsuit decided by the Supreme Court as Mass. v. EPA furnishes an example of action from
below to change the direction of an elite at the top of society. They accomplished much by
getting the Court to give legal legitimacy to the concept of anthropogenic global climate
change. Despite the Pyrrhic victory, the actual result has been nil in terms of actual
reductions in greenhouse gases. The Court depends on the Executive to enforce its
decisions and the executive has been unwilling to do so. The conservative dissenters will
likely prevail in years to come so it is crucial that actions come from the Congress in a form
the Court will find within the scope of its Constitutional powers.73
California has not waited for Federal action. It has recently enacted legislation that
sets hard targets for greenhouse gas emissions in metropolitan areas. To meet the new
targets by 2020, local governments can employ zoning laws, road and land use policies, and
mass transit to reduce the urban sprawl contribution to emissions. That state had already
enacted tail pipe emission standards for cars and a mandate for twenty percent of energy
produced in state to come from wind and other renewable sources. Sixteen other state have
indicated willingness to adopt the California emission standard but needs the permission of
the E.P.A. which has been withheld by the Bush administration for presumably the same
reason they blocked new Federal standards after Mass. v. E.P.A. As the New York Times
editorial writes, "There is, of course, no substitute for federal action or for American global
leadership on climate change, both of which the next president will have to deliver."74
73
Mass. v. E.P.A. supra note 19.
N.Y. Times Editorial, Cut the Sprawl, Cut the Warming, Oct. 6, 2008 available at
http://www.nytimes.com/2008/10/07/opinion/07tue2.html?_r=1&scp=4&sq=Greenhouse%20gas&st=cse&ore
f=slogin# (Oct.11, 2008).
74
25
Sioux Falls, S.D. represents a more conservative culture than California that has
taken independent action. The municipal landfill produces methane, a very potent
greenhouse gas. The city invested $2 million to install a collecting system to capture and
burn off the methane. It has received $184 thousand from a company that trades in carbon
offsets. It plans to make $1.8 million annually when it can pipe the methane to an industry
that will use it as fuel for its operation. The Sioux Falls experience demonstrates that
solutions can be found using the same market mechanisms that have driven the problem in
the past.75
K. Courts and Congress76
Robert Katzmann was a fellow at the Brookings Institution when he undertook a
study of the effect of judicial interpretations of legislation on congress. By survey of
congressional staff, he found that they were seldom aware of judicial opinions calling on
congress to amend legislation to make clear and achieve their intentions. He found on the
judicial side a lack of knowledge about the legislative process. Also, judges were unsure
what communications were ethically appropriate. He started a program of communication
between the two branches which was designed to correct problems while maintaining the
separation of branches required by the Constitution. The underlying premise was that
Congress, not the courts, should have the last word on the meaning of its statutes.77
75
Thom Gabrukiewicz, City Rewarded for Going Green, Argus Leader, Oct. 8, 2008 at 1A.
ROBERT A. KATZMANN, COURTS AND CONGRESS 69 (Brookings Institution Press/Governance Institute
1997). Katzmann is now a Judge on the Second Circuit Court of Appeals.
77
Id. at 76.
76
26
When and if the Executive and Congress agree on legislation consistent with the
Bali road map, controversies will arise as economic interests are impacted. The courts will
resolve the controversies by interpreting the legislation and the international commitments
contained in it. It would increase chances for success if lines of communication were open
to avoid judicial rulings which unnecessarily overturn or change the meaning of legislation.
Most problems could be avoided by careful drafting and amending. The substantive
disagreements that remain will then be clear and can be addressed in the political process
within the bounds of the Constitution.
L. Conclusion
Climate change caused by human production of greenhouse gases is already a fact.
The consequences are catastrophic but can be avoided by cutting emissions. The problem is
global but the United States must join the effort for it to be successful. Our response to date
has been to refuse to accept limits or change our way of life. The agreement to agree
reached at Bali plus the efforts of States and local governments may signal a change in
political climate. If the political will exits to adopt an international protocol of greenhouse
gas reduction then it will need to be implemented in domestic legislation. The Article II
treaty process will probably not get past the Senate two-thirds majority and would not be
given legal effect by the courts. The House of Representatives must pass this type of
agreement. A simple majority in both House and Senate might be achievable and would
execute the international agreement into binding domestic law. The road map to managing
a problem starts with recognition passes through agreement to make specific changes and
27
ends with writing it into Laws that will be understood and approved by ordinary readers of
English. We could then hope that our Courts would uphold and future Congresses would
adapt such laws to new circumstances and that if we fail it is not for want of trying.
28