Think globally, act globally: The limits of local climate policies

University of Pennsylvania Law Review

Volumn 155, Issue 6, 2007, Pages 1961-1979

  Wiener, Jonathan B ^a,b,c  

^a Department of Law ^*

^b DUKE UNIVERSITY   (United States)

^c UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34548126508     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (97)

1. Eg., Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005);
2. Complaint, California ex rel. Lockyer v. Gen. Motors Corp., No. 06-05755 (N.D. Cal. Sept. 20, 2006).
3. CAL. HEALTH & SAFETY CODE § 43018.5 (West 2007).
4. California Global Warming Solutions Act of 2006, CAL. HEALTH & SAFETY CODE §§ 38500-38599 (West 2007).
5. Regional Greenhouse Gas Initiative [RGGI], http://www.rggi.org (last visited May 1, 2007). The states participating in the RGGI include Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York, and Vermont.
6. See id.
7. 127 S. Ct. 1438, 1455, 1462 (2007) (finding in a 5-4 decision that Massachusetts does have standing to sue, and that the EPA does have statutory authority to regulate GHG emissions from motor vehicles as "air pollutants" under the Clean Air Act). In a related case, petitioners urge that the EPA has authority to regulate GHG emissions from stationary sources under the Clean Air Act; this case has been stayed in the D.C. Circuit pending the decision in Massachusetts v. EPA. Coke Oven Envtl. Task Force v. EPA, No. 06-1182 (D.C. Cir. June 23, 2006) (order granting motion to hold case in abeyance). It is important to note that these lawsuits could force the federal government to regulate and would thereby have a larger impact than policies adopted in the states themselves.
8. Other lawsuits are pending in the courts, including some by private plaintiffs seeking damages for Hurricane Katrina (in the district courts for the Southern District of Mississippi and the Southern District of Florida), some to force federal agencies to address climate change in their environmental impact statements under the National Environmental Policy Act, some under the Alien Tort Claims Act, at least one under the Endangered Species Act (brought by the Center for Biological Diversity, seeking the listing of polar bears as a threatened species, in response to which the U.S. Fish and Wildlife Service issued a proposed rule to list the polar bear as threatened, 72 Fed. Reg. 1064, 1064 (Jan. 9, 2007)), and one brought by the Inuit Circumpolar Conference in the Inter-American Commission on Human Rights on December 7, 2005,
9. see Ctr. for Int'l Envtl. Law, Inuit File Petition with Inter-American Commission on Human Rights, Claiming Global Warming Caused by United States Is Destroying Their Culture and Livelihoods, (Dec. 7, 2005), http://www.ciel.org/Climate/ICC_Petition_7Dec05.html.
10. Further claims might be brought by corporate shareholders against their officers and directors for failure to safeguard corporate value against impending climate change policies. David Buente and Linda Malone noted many of these cases in their comments at this Symposium. A useful overview of the various legal actions brought by the states and others, as of late 2006, is provided in JUSTIN R. PIDOT, GEORGETOWN ENVTL. LAW & POLICY INST., GLOBAL WARMING IN THE COURTS: AN OVERVIEW OF CURRENT LITIGATION AND COMMON LEGAL ISSUES (2006), available at http://www.law. georgetown.edu/gelpi/current_research/documents/GWL_Report.pdf,
11. and JUSTIN R. PIDOT, GEORGETOWN ENVTL. LAW & POLICY INST., GLOBAL WARMING IN THE COURTS: A LITIGATION UPDATE (2007), available at http://www.law.georgetown.edu/gelpi/ current_research/documents/GWL_Update_3.13.07.pdf.
12. For the purpose of analyzing the state-level policies compared to alternative abatement policies, this Commentary takes as given the premise that global climate change is a serious risk that warrants preventive measures. I reviewed this evidence and the benefits and costs of climate policies in RICHARD B. STEWART & JONATHAN B. WIENER, RECONSTRUCTING CLIMATE POLICY: BEYOND KYOTO 18-25 (2003). For the latest IPCC statement on the science,
13. see INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE [IPCC], WORKING GROUP I, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS 2-18 (2007), available at http://ipcc-wgl.ucar.edu/wgl/ Report/AR4WG1_SPM.pdf.
14. The United States negotiated, signed and ratified the United Nations Framework Convention on Climate Change, May 29, 1992, 1994 U.N.T.S. 164, 37 I.L.M. 22 (entered into force Mar. 21, 1994) [hereinafter FCCC].
15. The United States negotiated and signed, but did not ratify, the Kyoto Protocol to the FCCC, Dec. 10, 1997, 37 I.L.M. 22 (entered into force Feb. 16, 2005).
16. President Clinton did not submit the Kyoto Protocol to the Senate for ratification. In March 2001, President George W. Bush declared his decision to withdraw the United States from the Kyoto Protocol. See Andrew C. Revkin, Bush's Shift Could Doom Air Pact, Some Say, N.Y. TIMES, Mar. 17, 2001, at A7;
17. David E. Sanger, Bush Will Continue To Oppose Kyoto Pact on Global Warming, N.Y. TIMES, June 12, 2001 at A1.
18. The McCain-Lieberman Climate Stewardship Act, S. 139 revised as S. Amend. 2028, 108th Cong. (2003), received forty-three affirmative votes (and fifty-five against) in the U.S. Senate on October 30, 2003, 149 CONG. REC. S13598 (2003),
19. and thirty-eight affirmative votes in the Senate on June 23, 2005, 151 CONG, REC. S7029 (2005)
20. (voted on as S. Amend. 826 to H.R. Res. 6, 109th Cong. (2005)). In June 2005, by a fifty-four to forty-three vote, 151 CONG. REC. S7037 (2005),
21. the Senate adopted the Bingaman-Domenici "sense of the Senate" amendment, S. Amend. 866 to H.R. 6, 109th Cong. (2005),
22. calling for federal regulation of GHGs, but did not enact legislation to implement such regulation. Several other Senators of both political parties have also introduced bills on climate policy, including Senators Carper, Feinstein, Hagel, Kerry, Snowe, Lugar, Biden, Sanders, and Boxer. No such bill has passed the House. For a list and summary of these and other climate policy bills in the U.S. Congress,
23. see Pew Ctr. on Global Climate Change, What's Being Done in Congress, http://www.pewclimate.org/what_s_being_done/in_the_congress (last visited May 1, 2007) (discussing the 106th through 109th Congresses);
24. Pew Ctr. on Global Climate Change, Senate Greenhouse Cap-and-Trade Proposals in the 110th Congress, http://www.pewclimate.org/document.cfm? documentID=725 (last visited May 1, 2007) (discussing the 110th Congress).
25. This is the basic advice of RISK VS. RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (John D. Graham & Jonathan Baert Wiener eds., 1995).
26. Jonathan B. Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE L.J. 677, 683 (1999).
27. With a globally mixing pollutant causing global impacts, some version of market share proportionate liability could be applicable.
28. See supra note 5.
29. The court in Connecticut v. American Electric Power Co. based its dismissal on the political question doctrine.
30. See 406 F. Supp. 2d 265, 273-74 (S.D.N.Y. 2005).
31. For discussion, see Note, Foreign Affairs Preemption and State Regulation of Greenhouse Gas Emissions, 119 HARV. L. REV. 1877 (2006).
32. U.S. CONST, art. I, § 10;
33. see generally Claire Carothers, Note, United We Stand: The Interstate Compact as a Tool for Effecting Climate Change, 41 GA. L. REV. 229 (2006).
34. One study found that countries acting on their own would engage in only 4% of the GHG abatement that they would find worthwhile to undertake under a global cooperative regime. See William D. Nordhaus & Zili Yang, A Regional Dynamic General-Equilibrium Model of Alternative Climate-Change Strategies, 86 AM. ECON. REV. 741, 762 (1996).
35. See Bruce Yandle, Bootleggers and Baptists in the Market for Regulation, in THE POLITICAL ECONOMY OF GOVERNMENT REGULATION 29, 33-36 (Jason F. Shogren ed., 1989).
36. See Jonathan Baert Wiener, On the Political Economy of Global Environmental Regulation, 87 GEO. L.J. 749, 760-61 (1999).
37. If the EPA must regulate GHGs under the NAAQS program of Clean Air Act section 109, one possible solution would be for states to decline to issue SIPs, or for the EPA to declare all such SIPs inadequate, and for the EPA to issue a national Federal Implementation Plan (FIP), adopting a national emissions control regime. Indeed, this could be a clever way to use the Clean Air Act to develop a national cap-and-trade policy by administrative action rather than by legislation. Meanwhile, federal emissions standards for motor vehicles, as sought by petitioners in Massachusetts v. EPA, 127 S. Ct. 1438, 1446 (2007), would not pose the problem of state-level ambient objectives to be attained by SIPs.
38. COUNCIL OF ECON. ADVISERS, ECONOMIC REPORT OF THE PRESIDENT 171 (1998).
39. INTERNATIONAL ENERGY AGENCY, WORLD ENERGY OUTLOOK 2006 (2006), available at http://www.worldenergyoutlook.com/graphs/Slide4.gif.
40. In April 2007, the IEA's chief economist, Fatih Birol, reported that China could surpass the United States even sooner, in 2007. See China To Top USA in Greenhouse Emissions, USA TODAY.COM, http://www.usatoday.com/weather/climate/globalwarming/2007-04-24-china- emissions_N.htm (last visited May 1, 2007).
41. B.S. Fisher et al., An Economic Assessment of Policy Instruments for Combatting Climate Change, in IPCC, CLIMATE CHANGE 1995: ECONOMIC AND SOCIAL DIMENSIONS OF CLIMATE CHANGE 424-25 (James P. Bruce et al. eds., 1996) (reviewing numerous studies);
42. Jean-Charles Hourcade et al., A Review of Mitigation Cost Studies, in CLIMATE CHANGE 1995: ECONOMIC AND SOCIAL DIMENSIONS OF CLIMATE CHANGE, supra, at 297, 341-43 (same).
43. These studies differ in their sectoral coverage, representations of international trade flows, and levers of leakage considered; most omitted the possibility of higher GHG emissions per unit of resource use in the unregulated countries. Other surveys of leakage estimates in the 1990s include NICK MABEY ET AL., ARGUMENT IN THE GREENHOUSE: THE INTERNATIONAL ECONOMICS OF CONTROLLING GLOBAL WARMING 26, 266-302, 397-400 (1997);
44. 2 Reductions and Carbon Leakage: The Consequences of International Trade in Oil and Basic Materials, 25 J. ENVTL. ECON. & MGMT. 162, 175 (1993);
45. John Pezzey, Analysis of Unilateral CO2 Control in the European Community and OECD, ENERGY J., July 1992, at 159, 166.
46. The Magnificent Seven: States Take the Lead on Global Warming, GRAPEVINE ONLINE, Jan. 17, 2006, http://www.aceee.org/about/ 0601rggi.htm ("Leakage is a big issue for RGGI - initial carbon-cap runs showed that leakage could offset 60-90% of RGGI's emission reductions, as power plants in nearby states increase their output to sell into the higher-priced RGGI power markets.").
47. See Onno Kuik & Reyer Gerlagh, Trade Liberalization and Carbon Leakage, ENERGY J., July 2003, at 97, 98 ("[F]ree international trade may weaken the effectiveness of environmental regulations.").
48. At present, the world trading system seems headed toward ever more openness and hence more mobile trade, capital, and labor. For a popular treatment of this prediction, see THOMAS L. FRIEDMAN, THE WORLD IS FLAT (2005).
49. Mustafa H. Babiker, Climate Change Policy, Market Structure, and Carbon Leakage, 65 J. INT'L ECON. 421 (2005) (finding that in a multiregional computable general equilibrium model, significant relocation of energy-intensive industries away from the OECD may occur, depending on the type of market structure, with leakage rates as high as 130%, meaning that GHG control policies in the industrialized countries may actually lead to higher global emissions).
50. Rolf Golombek & Michael Hoel, Unilateral Emission Reductions and Cross-Country Technology Spillovers, B.E.J. ECON. ANALYSIS & POL'Y, vol. 4, no. 2, art. 3, at 2 (2004), http://www.bepress. com/bejeap/advances/vol4/iss2/art3.
51. Corrado Di Maria & Edwin van der Werf, Carbon Leakage Revisited: Unilateral Climate Policy with Directed Technical Change 15-16 (Fondazione Eni Enrico Mattei, Working Paper No. 94.2006, 2006), available at http://ssrn.com/abstract=912461.
52. S. Res. 98, 105th Cong. (1997);
53. see also 143 CONG. REC. 15,808 (1997) (recording the vote). For reports on the resolution's passage,
54. see Climate Change: Senate Approves Resolution To Require Binding Controls on Developing Nations, 28 Env't Rep. (BNA) 621 (Aug. 1, 1997).
55. Opined The New York Times a year later: "[T]he giant developing countries like India and China have yet to be brought on board. Until that happens, Senate ratification is out of the question."
56. Editorial, Remember Global Warming?, N.Y. TIMES, NOV. 11, 1998, at A26. After the Kyoto Protocol entered into force with ratifications by Canada, Japan, Russia, and European countries (thus reducing the concern about leakage and competitiveness losses to those countries), as evidence of the risks of unabated climate change mounted, and as the costs of a well-designed cap-and-trade system were shown to be low, the U.S. Senate became more receptive to enacting domestic cap-and-trade legislation. Forty-three senators voted in favor of the McCain-Lieberman Climate Stewardship Act of 2003 (though only thirty-eight voted for that bill in 2005), and several new bills addressing climate change were introduced in the 110th Congress.
57. See supra note 9.
58. John M. Broder, Clinton Adamant on 3D World Role in Climate Accord, N.Y. TIMES, Dec. 12, 1997, at A1.
59. See Richard Schmalensee, Greenhouse Policy Architectures and Institutions, in ECONOMICS AND POLICY ISSUES IN CLIMATE CHANGE 137, 146 (William D. Nordhaus ed., 1998).
60. See supra note 22 and accompanying text.
61. 2 emissions are limited to a few countries the problems of carbon leakage through energy market responses and industrial relocation will remain an obstacle to successful environmental protection.");
62. Henry D. Jacoby et al., Kyoto's Unfinished Business, FOREIGN AFF., July-Aug. 1998, at 54, 60 ("[A] substantial reduction in global emissions will require something close to worldwide participation ....").
63. See supra notes 27-28.
64. 2 ABATEMENT MEASURES 26 (2004), available at http://www.mnp.nl/bibliotheek/rapporten/500036002.pdf.
65. See ROBERT W. HAHN, THE ECONOMICS AND POLITICS OF CLIMATE CHANGE 44-54 (1998) (advocating experimentation in institutional design).
66. This helpful proposal is made by Kirsten H. Engel, Harmonizing Regulatory and Litigation Approaches to Climate Change Mitigation: Incorporating Tradable Emissions Offsets into Common Law Remedies, 155 U. PA. L. REV. 1563 (2007).
67. See supra text following note 33.
68. See Kirsten H. Engel & Scott R. Saleska, Subglobal Regulation of the Global Commons: The Case of Climate Change, 32 ECOLOGY L.Q. 183, 223-26 (2005) (describing a "domino effect").
69. See supra text following note 33.
70. See E. Donald Elliott, Bruce A. Ackerman & John C. Millian, Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 326-29 (1985).
71. See U.S. CLIMATE ACTION PARTNERSHIP, A CALL FOR ACTION 7-10 (2007) available at http://www.us-cap.org/ClimateReport.pdf (outlining a proposal for a federal cap-and-trade program);
72. id. at 12 (noting that the partnership includes Alcoa, BP, Duke Energy, and General Electric). This may also be a manifestation of a "Baptists and bootleggers" coalition.
73. See supra notes 18-19 and accompanying text.
74. For stationary sources, the Clean Air Act permits states to set more stringent ambient standards than the NAAQS, 42 U.S.C. § 7416 (2000), and it allows each state to design its own SIP containing the particular-and thus nonuniform-emissions standards imposed on industry to attain the NAAQS, 42 U.S.C. §7410 (requiring states to prepare and submit emissions control plans).
75. SIJM ET AL., supra note 35, at 25.
76. Some of this work includes (in chronological order): Richard B. Stewart & Jonathan B. Wiener, A Comprehensive Approach to Climate Change: Using the Market To Protect the Environment, AM. ENTERPRISE, Nov.-Dec. 1990, at 75;
77. Richard B. Stewart & Jonathan B. Wiener, The Comprehensive Approach to Global Climate Policy: Issues of Design and Practicality, 9 ARIZ. J. INT'L & COMP. L. 83 (1992);
78. Wiener, supra note 11;
79. Jonathan B. Wiener, Something Borrowed for Something Blue: Legal Transplants and the Evolution of Global Environmental Law, 27 ECOLOGY L.Q. 1295 (2001);
80. Jonathan Baert Wiener, Designing Global Climate Regulation, in CLIMATE CHANGE POLICY: A SURVEY 151 (Stephen H. Schneider et al. eds., 2002);
81. STEWART & WIENER, supra note 7.
82. Nor do I think most of the authors in this Symposium would prefer the state-level approach. I think they are writing about it mainly for the understandable reasons that the lack of U.S. federal action impels alternative efforts, and that the state-level actions raise questions of U.S. domestic tort, administrative, and constitutional law on which U.S. law professors are well equipped to comment.
83. This follows the insight of JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 113 (1962), that optimal jurisdiction size should expand until the added costs of decision making exceed the added benefits of internalizing extrajuris-dictional externalities.
84. See STEWART & WIENER, supra note 7, at 96-112, 132. The Asia-Pacific Partnership on Clean Development and Climate, begun in 2006 and including Australia, China, India, Japan, South Korea, and the United States, may make progress toward this kind of a regime, but at present it remains focused on technology research and not yet on a cap-and-trade system.
85. See generally Asia-Pacific Partnership on Clean Development and Climate, http://www.asiapacificpartnership.org (last visited May 1, 2007);
86. ASIA-PACIFIC PARTNERSHIP ON CLEAN DEVELOPMENT AND CLIMATE, PARTNERSHIP FOR ACTION 2006 (2006), http://www.dfat.gov.au/environment/climate/ap6/ appcdc-booklet-06.pdf.
87. See STEWART & WIENER, supra note 7, at 70-75 (discussing policies designed to include developing countries in a cap-and-trade system);
88. Wiener, supra note 11, at 721-26 (same).
89. See LLOYD GRUBER, RULING THE WORLD 27-30 (2000);
90. Wiener, supra note 11, at 743-47.
91. The postulates that major countries cannot be bullied regarding climate policy, and that WTO disciplines would preclude trade measures adopted to shield countries' subglobal emissions limitations against carbon leakage to unregulated countries (and thereby pressure those unregulated countries to act), may be tested if the U.N. Security Council treats climate change as an international security issue warranting coercive measures, and/or if some countries (e.g., European countries, or at least France) move ahead with imposing border tax adjustments (tariffs) on the embedded carbon content of imports of goods and services from countries not limiting their emissions (e.g., the United States and perhaps China).
92. See Helena Spongenberg, Global Warming Wars: EU Takes on France's Carbon Tax Plan, BUS. WEEK.COM, Dec. 18, 2006, http://www.businessweek.com/globalbiz/content/dec2006/gb20061218_681124. htm (reporting both the French border tax plan and the likely U.S. opposition to it). On the difficult trade law and economic aspects of such border tax measures,
93. see Cinnamon Carlarne, The Kyoto Protocol and the WTO: Reconciling Tensions Between Free Trade and Environmental Objectives, 17 COLO. J. INT'L ENVTL. L. & POL'Y 45, 71-74 (2006),
94. and Howard F. Chang, An Economic Analysis of Trade Measures To Protect the Global Environment, 83 GEO. L.J. 2131, 2154-60 (1995).
95. See generally STEWART & WIENER, supra note 7;
96. Wiener, supra note 11.
97. Linkages among the major issues just noted, such as climate, trade, and security, could also serve as in-kind side payments. And support for poor countries' adaptation to climate change will also be needed-helping societies become more resilient to the impacts of sea level rise, drought, storms, spreading ranges of diseases such as malaria, and other projected effects of climate change.