Taking the Legislative Temperature: Which Federal Climate Change Legislative Proposal Is "Best"?

By Victor B. Flatt[*]

[download pdf]

[Editor's Note:  This week, we are pleased to present Part I of Professor Flatt's paper on climate change legislation.  Part II of this paper and a number of responses will be appearing in the forthcoming weeks.  We would also like to thank Environment and Energy Daily for allowing us to provide copies of their articles, which are cited in several footnotes.]

INTRODUCTION

The United States will almost certainly enact federal legislation designed to reduce emissions of greenhouse gases within the next two years.  It is uncertain what final form this legislation will take and what variables will be in play in the discussion.  At this stage, even the ultimate target in greenhouse gas reductions is not yet known.  The legislation could have economy-wide effects, or could only affect certain industries.  It might allow the use of offsets or not. It may integrate with existing pollution-control regimes or stand on its own.  It will likely create new wealth for certain segments of the economy, but may put others out of business.  How these and other policy choices are resolved could turn out to be the most important legislative question that our country addresses in the foreseeable future.[1]

As of October 17, 2007, there were at least ten legislative proposals in Congress that address climate change.[2]  As identified by their primary sponsors, these include Bingaman-Specter, Udall-Petri, Lieberman-McCain, Kerry-Snowe, Waxman, Sanders-Boxer, Feinstein-Carper, Alexander-Lieberman, Stark, and Larson.  In addition, other politicians, such as John Dingell, have announced “plans” for legislation, announced their own goals for climate change, and/or endorsed various components of the filed bills.[3]  Although there has been politicking on both sides of this issue, we have not yet defined a suitable framework for evaluating the legislation.  In the case of climate change, it is particularly difficult to come up with a workable framework because of the scope and unusual complexity of the issue.  In fact, because of its connection to so many different parts of the economy, the impact of climate change regulation is present in issues not necessarily characterized as climate change, such as automobile efficiency and other energy legislation.  Nevertheless, the more comprehensively we address climate change, the better.[4]

It may seem difficult to propose a framework to judge the effectiveness of climate change proposals when there is no agreement on the standards with which we judge legislation generally.[5]  Our legislative process is not transparent, which increases the likelihood of rent seeking[6] and renders it difficult to hold the normative discussions necessary to inform the public so that it can demand the particular kinds of consideration it desires.  Political power-games add another dimension that makes the discussion even more complex.[7]

I will not attempt to devise a comprehensive framework with which to analyze the desirability of all legislation.  But with respect to climate change, there are certain policy choices that must be debated.  An analysis of these policy choices and their importance creates a common framework for discussion.  We may not all agree that rising temperatures in Alaska are bad, but knowing the outcome of a particular policy choice provides a basis for understanding the popular will and opinion regarding the choice.[8]  Therefore, this Colloquy Essay specifies:  1) the most important policy choices at stake in climate change legislation, 2) why they are important, 3) the best resolution of these issues, and 4) how the current legislative proposals deal with them.

Legislation is a dynamic and iterative process.  The legislative proposals analyzed in this Essay may be dropped or changed and other legislation may be proposed before comprehensive climate change legislation is passed.[9]  Indeed, this Essay and the comments that follow will hopefully provide impetus for changing legislative proposals in response to a consideration of issues herein.  Nevertheless, the scientific underpinnings of climate change, including the range of remaining uncertainties, are well enough understood that the analytical principles associated with climate change issues will not change in the immediate future.  Therefore, the analysis of the policy choices herein should inform any forthcoming climate change legislation and also serve as a resource for examining inevitable shortcomings and possible amendments in climate change legislation of the future.

This analysis is divided into two parts.  The first part will analyze the goals or purposes of climate change legislation, and the second part will look at the policy choices associated with reaching these goals.[10]  The method of accomplishing these goals would be considered “best” if it reaches and accomplishes all of the goals in the most efficient way possible.[11]

I.  What is the Goal of Climate Change Legislation?

To a casual observer, the goal of climate change legislation might seem to be simple—to stop climate change.  But one quickly sees that expense, cost allocation, and harm distribution are equally important.  Moreover, some amount of climate change might be tolerable or even preferred by certain groups.  Without properly determining goals at this step, these choices will be made at another time, with high transaction costs due either to incomplete information or failure to determine goals.[12]  Furthermore, the failure to identify explicit goals may work in favor of some interest groups who can exploit this opacity to address other issues sub rosa.[13]

What Climate Change Effects are we Trying to Avoid?

A climate change legislative goal must, at a minimum, address the harmful effects that it seeks to avoid—the “effects target.”  An effects target will guide how much we want to avoid temperature rise and other associated effects of climate change.  This goal must also specify how that change can be translated into actual reductions of carbon dioxide (“CO₂”) or other gases that affect climate change.  This requires us to determine how much harm we are willing to endure, whose harm we are concerned about, and how much we are willing to pay to avoid this harm.

Because CO₂ is the primary gas that contributes to the greenhouse effect, which is driving a rise in temperatures and other associated climate change effects, most discussion of climate change avoidance has focused, since its inception, on the amount of annual reductions in the emission of CO₂ (and CO₂ equivalents)[14] that we will need to avoid the harms that are associated with climate change.  The Rio Framework on Climate Change and the later Kyoto protocol focused on the reductions in CO₂ emissions of industrialized countries in a relatively short time frame, as a first step towards later reductions.[15]  Recent new targets in reductions have been proposed and offered by countries around the world as the next step in fighting climate change.[16]

However, the apparent simplicity of such percentage-gauged reductions masks huge complications in estimating the actual effects of these reductions.  A reduction in atmospheric CO₂ lags the greenhouse effects of the gas by forty years or more, meaning that temperatures will rise even if all greenhouse gas emissions were stopped now.[17]  Reductions in one jurisdiction must be compared to reductions or increases in others to ascertain the worldwide reductions that will occur.  Moreover, targets may not translate into actual reductions.  With these caveats, however, there is some scientific consensus about the effects of CO₂ concentrations on temperature change and associated climate change effects.  Moreover, there is some consensus on what reductions from historic emissions must occur worldwide to avoid the worst climate change harms.

Current CO₂ concentrations are at about 377 parts per million (ppm) (higher than pre-industrial levels by 40%) and projections indicate that CO₂ concentrations will grow by between 63% to 235% by 2050, depending on programs to reduce CO₂.[18]  There is consensus that if average global warming is kept lower than two degrees Celsuis, the effects of that temperture rise, while harmful, would not be catastrophic.[19]  There is also consensus that CO₂ emissions must be reduced by 50–80% of 1990 CO₂ production levels to achieve this lower level of warming.[20]

It is from these scientific analyses that we choose reduction targets, and it is with these scientific analyses that we compare our choices.  The variance of legislative CO₂ reduction targets result from the uncertainty in the science of these predictions, the degree of warming that is acceptable (with respect to the entire world, a nation, or some identified group), the technological changes that may exist in the future to address energy production or climate change harms, and the costs a given jurisdiction is willing to accept.  While uncertainty exists as to the effects of average temperature rise, most nations have embraced the notion that reductions in annual output of CO₂ must be made to stabilize the atmospheric concentrations at a level to keep average global temperature rise under two degrees Celsius.

In keeping with the above consensus, most of the legislative proposals analyzed in this Essay target a temperature rise no greater than two degrees Celcius (3.8 degrees Fahrenheit).  Most then translate this temperature rise limitation into goals for reductions in annual CO₂ emissions.[21]  Nine of the current legislative proposals—Bingaman-Specter, Udall-Petri, Lieberman-McCain, Kerry-Snowe, Sanders-Boxer, Waxman, Feinstein-Carper, Alexander-Lieberman, and Stark—include either CO₂ reduction targets or estimates of CO₂ reductions in a specified time frame.[22]  The reductions are made in comparison to historical emissions data and are at least theoretically designed to limit all or most U.S. emissions by this percentage in the time frame specified.[23]  The Larson proposal, one of the tax proposals,[24] does not reference a specified reduction goal in greenhouse gas emissions.

Most of the economy-wide CO₂ reductions target at least a 50% reduction in CO₂ from 1990 levels by mid-century, though there are some outliers.[25]  The largest reduction, 80%, is anticipated to come from the Waxman and Boxer-Sanders proposals.[26]

While each of the proposed statutes reference the importance of avoiding climate change harm, these percentage reductions are not defined with respect to what variables could affect such a choice, such as what community is considered, the allocation of costs and benefits, and the expectations of other reductions or future technological changes or solutions.  From the press releases of the legislative sponsors, it appears that all believe that their reductions are just enough to avoid the worst harm, while inflicting minimal damage on the economy.  Though these “Goldilocks” targets all claim to be “just right,” they lack valid supporting studies that prove these targets accomplish the climate change mitigation that the legislative sponsors claim.  Even the scientists themselves may not be sure of the probability of temperature rise associated with certain reductions or the distribution and effects of that rise, but failure to be more specific leaves the focus on direct economic impacts to the detriment of the other concerns.

Moreover, detailing what sectors the percentage reductions cover may be critical; lack of reductions in certain areas will reduce the supposed overall reduction and thus the possibility of avoiding the worst climate change harms.  Thus, bills that target a 50% reduction in CO₂ from 1990 levels by mid-century, which are qualified by exceptions, such as the Lieberman-McCain proposal, may be less “costly” to the economy in one sense.  However, the costs associated with too many exceptions means that such a bill may in fact be more costly to our society and economy in the long run than the Waxman or Boxer-Sanders bills, which target an 80% reduction in CO₂ from 1990 levels by mid-century.  As proposed in the Boxer-Sanders legislation, it is possible to revisit reduction targets as new scientific information comes in, but this same strategy has not worked well in revisiting human health effects and residual risk in the Clean Air Act’s control of hazardous air pollutants.[27]

Whom Are We Trying to Protect?

To analyze whether the legislative goals are sufficient, we must also know whom the legislation intends to protect.  Whether our legislation seeks to avoid the worst harms only in this country or works to prevent them worldwide is an important consideration.  The U.S. will probably suffer fewer effects from climate change than many equatorial countries, and because it is a developed country, it may have the resources to mitigate some of the worst harms.  But, that does not mean that only purely domestic considerations should underlie any climate change legislation.  Addressing whether our goals of climate change reduction and mitigation extend worldwide is important both practically and morally.

Practically speaking, failure to set goals which reflect the interests of other countries means that our ability to control domestic impacts is lessened.  The Bush Administration’s approach to climate change, which focuses almost exclusively on the U.S., has drawn criticism and potential non-cooperation from developing countries.[28]  Without controls on greenhouse gas production in developing countries, the U.S.’s best efforts at avoiding harm may be undermined by the failure of other countries to take action.

This practical concern in turn inevitably brings up issues of social justice and fairness since the lack of consideration of such issues by the U.S. and other developed nations is ostensibly the biggest barrier to developing country cooperation in any worldwide system.[29]  The European Union, which is similar to the U.S. in terms of government, economics, and market, recognizes this.  When imposing internal climate change regulations, the E.U. is careful to note its historic contribution and world-wide responsibility to take action to reduce harms, aside from effects they currently feel or will feel in the future.[30]  Most international discussions about climate change regulation are likewise about responsibility to the world as a whole.[31]  Unless we wish our legislative efforts in climate change to come to naught, we must adopt this stance.  The explicit acknowledgement of this goal also simplifies many other policy issues.

First, the ultimate question becomes what the “fair” share of reductions should be, not what an overall reduction that is equivalent from country to country should be.  The question of whether legislation should avoid mandatory domestic CO₂ cuts until there are commitments from developing countries almost disappears.  As long as we are producing over four times the per capita CO₂ output as China, it might not matter if the Chinese total exceeds that of the U.S.  Even if our production per capita were equal to China’s, the historic CO₂ contributions stemming from earlier U.S. economic growth, and the benefit we retain from that growth, may imply that we should allow other countries to follow a similar development mechanism or that we should bear a disproportionate burden in the cost of reduction.

Additionally, the CO₂ growth in other countries may be indirectly connected to our own benefit and economic growth.  Our market is the largest in the world and is the ultimate destination of many Chinese goods whose manufacture is driving much of the CO₂ growth in China.  Putting a tariff or limits on goods made in countries without binding CO₂ controls, as proposed by the Bingaman-Specter and Udall-Petri legislation, is one method of addressing the U.S. market’s role in climate change, but not necessarily the best one.

The most effective way to be in congruence with climate change concerns and efforts by other countries is to set a domestic legislative reduction target based on international agreement.  The Kyoto Protocol was not meant to be the final agreement in climate change control, since its anticipated reductions only buy time before other reductions are required.  There is an increasing push right now for agreement on second generation reductions, and the framework for a new protocol is expected to be established in Bali in December.[32]  Any such agreement will grapple with the overall worldwide target reduction and how that reduction should be allocated between the developing world and the developed world.  The most recent meeting of countries on the issue included proposals for a 50% cut from current emission levels to a 50% cut from 1990 levels (representing greater reductions), and also addressed the need for binding reductions in developing countries.[33]  While the expected disagreements materialized, some consensus on reductions and addressing the role of developing countries gives hope that this forum can provide for consideration of international as well as domestic interests.[34]

A possible successor to the Kyoto Protocol that sets binding targets for all countries, even if lower for developing countries, would ensure that all signatory countries have agreed on how much reduction is needed, who bears the responsibility for the cost of the reductions, and that the protection is worldwide.  International compliance with such a shared agreement is more likely, meaning that U.S. efforts will not be dragged down by lack of action in other countries.  In order for legislation to proceed while international discussions are still ongoing, a reduction target that accommodates current international goals and proposals should be used.  Current international discussions about the relative roles of the developed and developing countries in reducing the effects of climate change suggest that the U.S. (and the E.U.) may need to take a higher share of reductions than developing countries.[35]  Thus, domestic legislation that either acknowledges this fact or implicitly targets a range that could be seen as accommodating international agreement is best.  This takes into account some international responsibility and is more congruent with an expected international outcome.

Many of the legislative proposals note the U.S. share of international emissions compared to its share of world population, and two of the proposals (Kerry-Snowe and Waxman, which are similar in tone) acknowledge the need for international agreement on climate change.  The only other discussion of the relationship between U.S. CO₂ reductions and the rest of the world are in the context of whether the current proposals should require CO₂ reductions in developing countries, or whether they should protect the competiveness of American businesses.[36]

None of the proposals specify what factors should govern the relationship of U.S. emissions to other countries.  The expected CO₂ reductions in some of the U.S. legislative proposals (such as the Waxman and Boxer-Sanders proposals) are in agreement with the emission cuts called for by the E.U. in the new international discussions, which indicate that international protection my be part of the overall goal in some of these proposals.  However, this goal should be made more specific as it lets the American public understand what tradeoffs are being made, and also allows for ease in future climate change legislation targets as more information about worldwide effects becomes available.  There may be no “right” answer regarding the burden our country should shoulder for international responsibilities, but failure to consider and discuss this will hamper the effectiveness of any legislative efforts.

Should Compensation be a Legislative Goal?

Our measure of responsibility for harm is related to the question of whether we should assist individuals dealing with adapting to existing harm and expected future harm.  Climate change has arguably already caused harm to a large group of persons, both within our own country and elsewhere.

Many tort suits have been filed seeking redress for such harms, but the chance of success at this time seems small.[37]  The fact that climate change harms are not best dealt with under traditional tort systems prompts whether federal legislation should have a compensation system as one of its goals.  With respect to other situations wherein tort recovery was difficult because of the complexity of environmental harms, federal legislation has intervened in two distinct ways.  With respect to hazardous waste, the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) provided recovery of damages to natural resources but did not provide compensation for prior impacts to human health.[38]  However, it did not preclude common law actions for damages to persons.[39]  On the other hand, compensation for human health impacts were implemented for black lung disease and considered, but never implemented for asbestosis.[40]

This suggests two possible routes to alleviate existing climate change harms.  In this instance, climate change is more like hazardous waste exposure than black lung disease.  Those exposed to black lung were an easily identifiable group, and causation could be easily established, making compensation for human health harms feasible.  Harm from hazardous waste has been more difficult to prove and entangled with other issues, just as climate change has been.  Thus, federal legislation should not seek to legislatively compensate persons or institutions that have been harmed by climate change.  This is a practical consideration rather than a moral one.  Where causation is difficult to prove, federal legislation will not help in awarding damages.  Where causation is more evident, traditional tort law can step in to assist in compensation.

The examples of hazardous waste and black lung suggest a different approach for future harms, however.  In both hazardous waste and black lung instances, future harm was essentially completely dealt with because of the related remedial measures for clean-up and abatement that had already occurred with respect to the issue.  Climate change is different.  Most harm has yet to occur, and no legislative action can completely remediate all possible future harm.  Nevertheless, legislation can authorize funds to abate as many future harms as possible, and should do so.[41]  Just as CERCLA evidences a choice through remediation to effectively insulate people from future harm,[42] climate change legislation should spend money to abate as many future effects of climate change as possible.  This is consistent with our common law principles of fairness,[43] particularly if the legislation might have any preemptive effect.

Initially, when businesses first began to support the idea of comprehensive climate change legislation, it was with the hope that federal legislation would preempt the patchwork of state and local initiatives that were being enacted.[44]  However, many environmental organizations oppose the preemption of local initiatives,[45] and point to past environmental laws as examples of cooperative federalism that allow a national floor for emissions but permit the states to go above that floor.[46]  This is why a comparison to principle in prior laws is so important: explicit preemption seems particularly at odds with fairness concerns evident in prior environmental laws such as CERCLA.[47]

Legislation should also take care to avoid implicit preemption if some compensation or protection scheme is not enacted. None of the current bills explicitly preempt state programs or state common law, and Senator Boxer has gone on record as opposing any state preemption provisions.[48]  However, the Bingaman-Specter bill includes a provision for financial assistance to those specifically affected by climate change, with particular provisions governing the state of Alaska, and it is possible that implicit preemption of common law might be read into this.

The issue of compensation for harms or adaptation has not been addressed in the goals section of the proposed statutes, though the Lieberman-McCain bill would require a study on effects of climate change on the poor worldwide,[49] and the Bingaman-Specter bill proposes financial assistance for coastal areas, natural resources, and Alaskan villages harmed by climate change.[50]  The Bingaman-Specter bill is a good start, but any bill should be more specific about compensation rules and preemption, and should also address international assistance, even if it is simply to deny it.  One possible model for compensation for harms that can be specifically tied to climate change (such as the sinking of Alaskan villages) would be to empower a special master, who could award funds based on specific criteria, similar to the special master that awarded compensation from the September 11th Fund.[51]

————

*.  A.L. O’Quinn Chair in Environmental Law, and director of the Environment, Energy, and Natural Resources Center, the University of Houston Law Center.  The author would like to thank Marcilynn Burke, Charles Irvine, and Carol Rose for comments on earlier iterations of this document.  Thanks to Environment & Energy Daily and Michael Witt for their permission to hyperlink to several Environment & Energy Daily articles.  Additionally, an article such as this dealing with a fast-moving target could not exist without the commitment of the Northwestern University Law Review to putting forth scholarly dialogue in the new Northwestern University Law Review Colloquy.  Special thanks to the dedicated fast and thorough work of the students associated with the Colloquy, especially Isaac Peterson and Melissa Whitehead.  Finally, a special thank you to John O’Quinn Foundation for endowing the A. L. O’Quinn Chair in Environmental Law, which make this scholarship possible.

1.  The Congressional Budget Office estimates that the value of carbon allocations in a U.S. cap and trade system could approach hundreds of billions of dollars.  See Terry Dinan, Cong. Budget Office, Trade-Offs in Allocating Allowances for CO2 Emissions 1 (2007), http://www.cbo.gov/ftpdoc.cfm?index=8027&type=1 (link).  The cost of avoided harm by controlling climate change is more uncertain, but has been estimated in the trillions.  Robert Peston, Report’s Stark Warning on Climate, BBC News, Oct. 29, 2006, http://news.bbc.co.uk/2/hi/business/6096594.stm (link).

2.  See July 2007 Climate Change Bills in Congress, www.rff.org/climatechangelegislation
(last visited Nov. 15, 2007) (link); Resources for the Future, Summary of Market-Based Climate Change Bills Introduced in the 110th Congress (2007), http://www.rff.org/rff/News/Releases/2007Releases/July2007ClimateChangeBillsinCongress.cfm (follow “Summary of Climate Change Bills Introduced in the 110th Congress” hyperlink) (link) [hereinafter Summary of Bills] (mentioning the Udall-Petri bill, which is a draft that has not been introduced but retains elements of prior Udall and Petri bills in the 109th Congress; discussion of this bill is based on an analysis of what is currently expected to be proposed).  A specific date is noted due to ongoing alterations in proposed legislation. Legislation cited in this essay refer to the bills in their form as of October 17, 2007.

3.  See Darren Samuelsohn, Democratic Leaders Want ‘Strong Bill’ on Global Warming, Waxman Says, Env’t & Energy Daily, Mar. 21, 2007, (link).

4.  See Darren Samuelsohn & Ben Geman, Boucher Would Delay Energy Conference
for Cap-and-Trade Package, Env’t & Energy Daily, Sept. 7, 2007, (noting that Boucher argues that combining climate change legislation with energy legislation into one package is optimal)  (link).

5.  The mechanics of legislation are well known.  Why laws take a particular form is far more difficult to exactly explain or predict.  “Public choice” theory, one of the dominant theories of legislation, has been explained by Professor Edward Rubin:

Public Choice analysis has recently emerged as a leading approach to the study of the legislative process.  Its grim landscape of vote-maximizing legislators, rent-seeking interest groups, budget-aggrandizing bureaucrats, and free-riding citizens has now become familiar territory.  Proponents of public choice assert that it constitutes a comprehensive theory, and they level the dread charge of idealism and naïveté against those who seek broader vistas and more cheerful prospects.

Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. Rev. 1, 1–2 (1991).  He goes on to explain the theoretical bases behind public choice, noting that its tenets should spring from the assumption that “all political participants are rational, egoistic utility maximizers,” which he claims is not in the public interest.  Id. at 5.  This can be contrasted with those who view individual utility maximizers as simply the best way to get to over all societal welfare, as measured by Kaldor-Hicks efficiency.  See, e.g., Herbert Hovenkamp, Legislation, Well-Being, and Public Choice, 57 U. Chi. L. Rev. 63, 64 (1990).

6.  “Rent seeking” is when persons seek to capture all benefits produced by efficiencies of the market or legislation for themselves.  For instance, if a new law will increase the market value of a product, to “rent seek” would be to try and steer the legislation so that the rent seeker would receive the greatest percentage of the increase in value.

7.  No one could have watched the Senate hearings on climate change featuring testy exchanges between former Vice-President Al Gore and Senator James Inhofe, or hear newspaper commentators refer derisively to “Al Gore’s movie,” without realizing that personal egos, likes, and dislikes may play at least as large a role as dispassionate science in what climate change legislation the United States passes.  See, e.g., CNN: Boxer Tells Inhofe Who the Boss is Now, a http://www.youtube.com/watch?v=UWpkBcWsAME (last visited on Dec. 1, 2007) (link).

8.  While I hesitate to bring up another variable, it is also important to note how information can change preferences or even persuade them (which is the basis of advertising).  Government has even used this as an overt policy tool, usually by the moniker of “information and education.”  But if this is a possible result of transparency, it too can be transparent and be considered in the choice itself.

9.  On October 16, 2007, it was announced that Senators Lieberman and Warner would propose a bill that would alter two key areas in prior legislation and ideas floated by the two senators.  See Darren Samuelsohn, Lieberman-Warner Plan Tightens Emissions Cap, Limits Credits, Greenwire, Oct. 16, 2007  (link).

10.  Separating out the discussion of goals and ways of reaching the goals helps clarify the issues and avoid the masking of goal choices as policy implementation choices.  See Victor B. Flatt, Saving the Lost Sheep: Bringing Environmental Values Back into the Fold With a New EPA Decisionmaking Paradigm, 74 Wash. L. Rev. 1, 20 (1999).

11.  Note this statement is only true if all true goals are included and are addressed.  For instance, with climate change, while the main goal may be to reduce CO₂ emissions, another goal may be to do so in a way that is fair or that does not impose costs on the poor.  It is only with respect to all goals that we can use the term “efficient.”  Efficiency in CO₂ reductions alone might run counter to other goals that are important. See Victor B. Flatt, Should the Circle be Unbroken?, 24 Envtl. L. 1707, 1713 (1994) (reviewing Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (1993)) (“[A]ctual policy choices [may] reflect societal values other than the explicit reduction of risk to human life.”).

12.  See Flatt, supra note 10, at 20.

13.  For instance, if there is concern about other air pollutants in addition to carbon dioxide, a push to eliminate all other anthropogenic greenhouse gases could be made for purposes of other kinds of health protection.  This may not be a bad thing per se, but without an explicit policy goal it is hard to evaluate whether the resulting policy is a good one.

14.  CO₂ provides about 70% of the heat retention associated with the anthropogenic greenhouse effects at play in the Earth’s atmosphere.  Other gases, such as methane, water vapor, and HCFCs also have greenhouse forcing capabilities.  Generally, when greenhouse gas amelioration is discussed, it is done with respect to CO₂ reductions.  Nevertheless, it is clearly recognized that reductions in other greenhouse gases may have the same effect as a different amount of CO₂ reduction, and therefore many discussion of greenhouse gas reductions are in terms of CO₂ or amounts of other gases that would be equivalent to an amount of CO₂ reduction.  These equivalent gases are very important in any climate change legislation and will be considered explicitly, infra Part II.  However, for ease of discussion I will drop the parenthetical regarding CO₂ equivalents, and one should assume that discussion of CO₂ reductions may include reduction of other gases that can be equated to CO₂ reductions.

15.  See Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998), available at http://unfccc.int/resource/docs/convkp/kpeng.html (link).

16.  See, e.g., The EU’s Contribution to Shaping a Future Global Climate Change Regime, http://ec.europa.eu/environment/climat/future_action.htm (link) (last visited Nov. 16, 2007); Darren Samuelsohn,Congress Has Its Eye on Int’l Warming Talks, Env’t & Energy Daily, Sept. 24, 2007 (link).

17.  See Sir Nicholas Stern, Stern Review on the Economics of Climate Change 11–13 (2006), http://www.hm-treasury.gov.uk/media/3/6/Chapter_1_The_Science_of_Climate_Change.pdf (link).  Although many of the economic assumptions of the Stern Report have been criticized and challenged, its discussion of the scientific basis of climate change and the effects resulting from that are widely accepted).

18.  See T.J. Blasing & Carmen Smith, Carbon Dioxide Information Analysis Center, Recent Greenhouse Gas Concentrations (July 2006), http://cdiac.ornl.gov/pns/current_ghg.html (link); Kevin Baumart et al., Pew Center on Global Climate Change, Climate Data: Insights and Observations, 15 (2004), http://www.pewclimate.org/docUploads/Climate%20Data%20new.pdf (link).

19.  Raymond Colitt, World Must Fix Climate in Less than 10 Years, Reuters, Nov. 27, 2007, http://www.reuters.com/article/idUSN19489506._CH_.2400 (link).  The irreversible melting of the Greenland and Antarctic ice sheets is considered catastrophic and may occur with temperature rise above two degrees Celsius.  Other impacts have also been described as catastrophic.

20.  Pew Center on Global Climate Change, Climate Change 101: The Science and Impacts 7 (2007), http://www.pewclimate.org/docUploads/101_Science_Impacts.pdf (link).

21.  See, e.g., Global Warming Pollution Reduction Act, S. 309, 110th Cong. (2007), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s309is.txt (link).

22.  See Summary of Bills, supra note 2.

23.  Resources for the Future, Comparison of Emission Reduction
Goals in Legislative Proposals in the 110th Congress (2007), http://www.rff.org/rff/News/Releases/2007Releases/July2007ClimateChangeBillsinCongress.cfm (follow the “Comparison of Emission Reduction Goals” hyperlink) (link) [hereinafter Comparison of Emission].  The legislative proposals very in what percentage of sources the CO₂ emissions reductions will apply to.  The Lieberman-Warner proposal will only affect 80% of US CO₂ sources, and doesn’t cover residential or commercial buildings, or the agricultural sector.  See Samuelsohn, supra note 9.  Similarly, the current legislative proposals do not address all CO₂ or other greenhouse gas reductions despite many being touted as economy wide.

24.  See infra Part II.

25.  Direct comparison is difficult in the text since some proposals refer to reductions from CO₂ amounts produced in years other than 1990.  Note also that some sectors may not be covered.  A graphical representation that takes some of this into account has been published by Resources for the Future, comparing reductions across proposals.  See Comparison of Emission, supra note 23.

26.  Id.

27.  Victor B. Flatt, Gasping for Breath: The Administrative Flaws of Federal Hazardous Air Pollution Regulation and What We Can Learn from the States, 34 Ecology L. Q. 107, 118 (2007).

28.  Up to this time, the U.S. response to climate change has exclusively focused on the effects to the U.S. President Bush’s first climate change initiatives focused on adapting to climate change harm, rather than mitigating future harm, under the assumption that it was less costly to adjust to the upcoming higher temperatures than to prevent them coming, at least as far as the United States was concerned.  Andrew C. Revkin, Climate Talks Shift Focus to How to Adapt to Changes, N.Y. Times, Nov. 3, 2002, http://www.globalpolicy.org/socecon/envronmt/2002/1103delhi.htm (link).  One of the proffered reasons for not acceding to the Kyoto protocol, given by President Bush, is that it did not set binding limits on developing countries. Eric Pianin, U.S. Aims to Pull out of Global Warming Treaty, Albany Times Union, Mar. 28, 2001 at A3.

29.  See, e.g., Greenland Growing Season Extended Due to Warming/Indonesian President Asks Other Developing Nations to Press Developed World Over Emissions, Greenwire, Oct. 29, 2007, (link) [hereinafter Greenland Growing Season].

30.  See Statement by Ambassador John Bruton on Climate Change, No. 17/05 (Feb. 16, 2005), available at http://www.eurunion.org/news/press/2005/2005017.htm (link).

31.  See European Commission President Barroso’s Remarks at the UN High Level
Meeting on Climate Change, No. 99/07 (Sept. 24, 2007), available at http://www.eurunion.org/News/press/2007/2007099.htm (link).

32.  Dean Scott & Mike Ferullo, Meeting of Major Economies Concludes with Countries Divided on Emissions Goal, [2007] Daily Env’t Rep. (BNA) No. 189 (Oct. 1, 2007); Press Release, General Assembly, Actions on Climate Change Will Define Global Legacy Left for Future Generations, Says Secretary-General, As High-Level Event Continues, U.N. Doc. GA/10618 (Sept. 24, 2007), http://www.un.org/News/Press/docs/2007/ga10618.doc.htm (link) [hereinafter Actions on Climate Change].

33.  Actions on Climate Change, supra note 32.

34.  Id.

35.  See Greenland Growing Season supra note 29.

36.  See, e.g., Darren Samuelsohn, Coleman Signs on to Cap-and-Trade Plan, Env’t & Energy Daily, May 22, 2007, (discussing the possibility of reviewing legislation if other countries do not sign on or if poverty and unemployment increase) (link).

37.  The high profile California suit against auto manufacturers was recently thrown out, but many other possibilities remain.  Carolyn Whetzel, Federal Court Tosses Out Nuisance Claim Filed Against Six Automakers by California, 38 Env’t Rep. (BNA) 2036 (Sept. 21, 2007).

38.  See 42 U.S.C. § 9607(a)(4).

39.  42 U.S.C. § 9614 (a).

40. SeeAlan Derickson, Black Lung: Anatomy of a Public Health Disaster 143–82 (1998); Paul D. Carrington, Asbestos Lessons, the Consequences of Asbestos Litigation, 26 Rev. Litig. 583, 596 (2007).

41.  While controversial for other reasons, dikes and levees may lessen some of the harm for rising sea levels, while relocation of persons to areas less affected by extreme weather could also be done.

42.  Victor B. Flatt, This Land is Your Land: Our Right to the Environment., 107 W. Va. L. Rev. 1 (2004).

43.  Id.

44.  Economist.com, Business Calls for Carbon Caps, posting to Democracy in America, http://www.economist.com/blogs/democracyinamerica/2007/03/business_calls_for_carbon_caps.cfm (Mar. 20, 2007, 21:30 GMT) (link).

45.  Congressional Bill Would Wipe out California Warming Law, Officials Claim, Greenwire, June 6, 2007,  (link).

46.  Though inconsistent common law actions may be prohibited by statutory schemes, the major statutes do allow the states themselves to set higher standards.  See Robert C. Percival et al., Environmental Regulation: Law, Science, and Policy 101–103 (5th ed. 2006).

47.  Flatt, supra note 42, at 21.

48.  Debra Kahn, California Regulators Say Cap-and-Trade Should Limit Free Credits, Env’t & Energy Daily, Oct. 9, 2007 (link).

49.  S. 280, 110th Cong. § 402 (2007).

50.  S. 1766, 110th Cong. § 402 (2007).

51.  See James Harris, Comment, Why the September 11th Victim Compensation Fund Provides the Case for a New Zealand-Style Comprehensive Social Insurance Plan in the United States, 100 Nw. U. L. Rev. 1367, 1400 (2006) (link).

————      

Copyright 2007 Northwestern University      

Cite as: 102 Nw. U. L. Rev. Colloquy 123 (2007).

Persistent URL: http://www.law.northwestern.edu/lawreview/Colloquy/2007/32

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Comments

[M. Simon]

And just suppose the solar scientists (none on the IPCC) are right and we are headed for a little ice age.

Already the next sunspot cycle is late in arriving. This is normally a harbinger of reduced solar output.

If the sun is driving climate then what? CO2 reduction will then be just another government boondoggle i.e. theft from the poor and a reduction of economic output.

BTW the supposed addition of CO2 to the atmosphere by humans is less than 1/2 the margin of error in total environmental sources and sinks for CO2.

Is it a good idea to base policy on such questionable numbers?

Depends on the goal. GE wants to profit by shutting down low cost forms of energy the better to sell its higher priced stuff.

It is not just the carbon producers who have an interest in this.