Climate change policy and policy change in China

UCLA Law Review

Volumn 55, Issue 6, 2008, Pages 1805-1826

  Wiener, Jonathan B ^a,b  

^a Department of Law ^*

^b DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 53349172316     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (130)

1. The U.S. and China are the world's two largest emitters of greenhouse gases, and China's emissions are growing rapidly. See infra notes 8-13 and accompanying text. But neither has yet committed to quantitative limits on its emissions.
2. United Nations Framework Convention on Climate Change, Conference of the Parties, Thirteenth Session, Bali, Indon., Dec. 3-15, 2007, Decision 1/CP.13: Bali Action Plan, U.N. Doc. FCCC/CP/2007/6/Add.1 (Mat. 14, 2008), available at http://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf#page=3 [hereinafter Bali Action Plan].
3. See id. at 5.
4. See Cass R. Sunstein, The World vs. the United States and China? The Complex Climate Change Incentives of the Leading Greenhouse Gas Emitters, 55 UCLA L. REV. 1675 (2008) (describing China's potentially negative national net benefits of limiting emissions, and suggesting that we appeal to China to recognize and act upon its moral obligation to combat climate change);
5. see also Douglas A. Kysar, Climate Change, Cultural Transformation, and Comprehensive Rationality, 31 B.C. ENVTL. AFF. L. REV. 555 (2004) (advocating a cultural transformation toward an environmental ethic or moral code as the way to combat climate change, rather than calculating the net benefits of climate policies). More generally, some have characterized climate change as a moral issue, without necessarily advocating this as a strategy to engage China.
6. See Gore Shares Nobel Peace Prize With UN Panel, CNN.com, Oct. 12, 2007, http://www.cnn.com/2007/WORLD/europe/10/12/nobel.gore (quoting Al Gore, "the climate crisis is not a political issue it is a moral and spiritual challenge").
7. For an overview and analysis, see RICHARD B. STEWART & JONATHAN B. WIENER, RECONSTRUCTING CLIMATE POLICY: BEYOND KYOTO (2003), available at http://www.aei.org/books/docLib/20040218_book211.pdf.
8. See Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE L.J. 677 (1999).
9. See LLOYD GRUBER, RULING THE WORLD (2000) (explaining the need for national net benefits to join a treaty, as compared to not joining);
10. cf. Robert O. Keohane & Joseph S. Nye, Jr., Power and Interdependence in the Information Age, FOREIGN AFF., Sept./Oct. 1998, at 81 (arguing that states remain the key centers of power, and that national leaders care about national interests).
11. For emissions data and projections, see INT'L ENERGY AGENCY, WORLD ENERGY OUTLOOK 2007 (2007). The next edition will be published in November 2008.
12. COUNCIL OF ECONOMIC ADVISERS (CEA), ECONOMIC REPORT OF THE PRESIDENT 171 (1998), available at http://www.gpoaccess.gov/usbudget/fy99/pdf/erp.pdf.
13. INT'L ENERGY AGENCY, WORLD ENERGY OUTLOOK 2006, at 41 (2006), available at http://www.iea.org/textbase/nppdf/free/2006/weo2006.pdf.
14. See China to Top USA in Greenhouse Emissions, USA TODAY.COM, Apr. 24, 2007, available at http://www.usatoday.com/weather/ climate/globalwarming/2007-04-24-china-emissions_N.htm (citing comments by IEA chief economist, Fatih Birol). India will soon be third.
15. See INT'L ENERGY AGENCY, supra note 8, at 11. The present Article focuses on China, but it is clear that more attention to engaging India is also needed.
16. See A Large Black Cloud: Rapid Growth Is Exacting a Heavy Environmental Price, in ECONOMIST, Special Report: China's Quest for Resources, Mar. 15, 2008, at 17, 17, 21, available at http://www.economist.com/specialreports/displaystory .cfm?story_id=10795813.
17. See Richard G. Richels, Thomas Rutherford, Geoffrey Blanford & Leon Clarke, Managing the Transition to Climate Stabilization (AEI-Brookings Joint Ctr. for Regulatory Studies, Working Paper No. 07-01, 2007), available at http://www.reg-markets.org/admin/authorpd(5/page.php? id=1350 (noting that if industrialized countries continue emitting unabated, the 450 parts per million (ppm) level will be reached earlier, by 2040);
18. see also Andrew C. Revkin, As China Goes, So Goes Global Warming, N.Y. TIMES, Dec. 16, 2007, Week in Review, at 3 (illustrating this forecast with a large chart).
19. See Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Policies, 155 U. PA. L. REV. 1961, 1967-75 (2007) (summarizing the literature on greenhouse gas (GHG) emissions leakage);
20. 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, GHG emissions limits by OECD member countries alone could yield significant relocation of energy-intensive industries to other unregulated countries, with leakage rates as high as 130 percent, meaning that GHG control policies adopted solely in the industrialized countries could actually result in higher global emissions).
21. See Joseph Kahn & Mark Landler, China Grabs West's Smoke-Spewing Factories, N.Y. TIMES, Dec. 21, 2007, at Al ("Germany is China's mirror image. Polluting factories have migrated abroad.... Since 1990, Germany has reduced its annual carbon emissions by 19 percent.");
22. id. ("[But] the same hulking blast furnace [was] dismantled and shipped piece by piece from Germany's old industrial heartland to Hebei Province, China's new Ruhr Valley. The transfer, one of dozens since the late 1990s, contributed to a burst in China's steel production, which now exceeds that of Germany, Japan and the United States combined....");
23. id. ("China's less efficient steel mills, and its greater reliance on coal, meant that it emitted three times as much carbon dioxide per ton of steel as German steel producers." (emphasis added)).
24. See Richard Schmalensee, Greenhouse Policy Architectures and Institutions, in ECONOMICS AND POLICY ISSUES IN CLIMATE CHANGE 137, 146 (William D. Nordhaus ed., 1998).
25. An additional advantage of broader global coverage is that it widens a market in emissions allowance trading to encompass more abatement opportunities, thus reducing the total costs, and diminishing the market power of each seller and buyer.
26. See NEIL ALXJER ET AL., I NTERGOVERNMENTAL PANEL ON CLIMATT CHANGE, SUMMARY FOR POLICYMAKERS, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY 7-22 (2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ ar4-wg2-spm.pdf.
27. See WILLIAM NORDHAUS & JOSEPH BOYER, WARMING THE WORLD (2000), noted in Sunstein, supra note 4;
28. STEWART & WIENER, supra note 5, at 23-24, 99-109.
29. See Peter J. Katzenstein, Robert O. Keohane & Stephen D. Krasner, International Organization and the Study of World Politics, in EXPLORATION AND CONTESTATION IN THE STUDY OF WORLD POLITICS 5 (Peter J. Katzenstein et al. eds., 1999) (contrasting the two types of approaches and urging the need for both);
30. id. at 42 ("Neither project can be complete without the other.").
31. Cf. Ryan Goodman & Derek Jinks, Toward an Institutional Theory of Sovereignty, 55 STAN. L. REV. 1749 (2003) (describing the acculturation of norms across countries);
32. Harold Hongju Koh, Internalization Through Socialization, 54 DUKE L.J. 975 (2005) (commenting on Goodman and Jinks).
33. On disaggregating the state, see Robert O. Keohane & Joseph S. Nye, Transgovernmental Relations and International Organizations, 27 WORLD POL. 39 (1974);
34. Anne-Marie Slaughter, The Real New World Order, FOREIGN AFF., Sept./Oct. 1997, at 183.
35. See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, in DOUBLE-EDGED DIPLOMACY: INTERNATIONAL BARGAINING AND DOMESTIC POLITICS 431 (Peter B. Evans et al. eds., 1993);
36. Kal Raustiala, Domestic Institutions and International Regulatory Cooperation, 49 WORLD POL. 482 (1997).
37. See Kysar, supra note 4;
38. Sunstein, supra note 4. Sunstein's appeal to moral obligation is distinct from Kysar's call for "cultural transformation," but both share the strategy of changing people's internal norms and beliefs (rather than external incentives) to spur a change in behavior. Sunstein does discuss a variety of strategies to engage China, including incentives in an international treaty, but he emphasizes the appeal to moral obligation as a way to persuade China if incentives-based strategies are inadequate to the task. It is plausible that domestically, within the U.S., appeals to moral obligation regarding climate may be effective in persuading religious conservatives to ally with environmentalist liberals. The issue I address here is whether such a strategy will succeed internationally to engage China.
39. China's GHG emissions have been driven by its surging economic growth. See supra text accompanying notes 8-13. China's leaders may see their political stability as dependent on continued economic growth.
40. See Daniel Abebe & Jonathan Masur, The Two China Problem (Apr. 29, 2008) (unpublished manuscript), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1126966.
41. See Cass R. Sunstein, Incompletely Theorized Agreements in Constitutional Law (Univ. of Chi. Law Sch. John M. Olin Law & Econ. Working Paper No. 322, Pub. Law and Legal Theory, Working Paper No. 147, 2007), available at http://ssrn.com/abstract=957369.
42. See Matthew Forney, Op-Ed., China's Loyal Youth, N.Y. TIMES, April 13, 2008, at 16, available at http://www.nytimes. com/2008/04/13/opinion/13forney.html.
43. See JUDITH SHAPIRO, MAO'S WAR AGAINST NATURE: POLITICS AND THE ENVIRONMENT IN REVOLUTIONARY CHINA (2001).
44. 2-Only, no-trading policy with performance standards. A prescriptive technology-based policy of the kind often associated with moralizing about pollution would be even more costly than the latter narrow no-trading policy, because it lacks even the "how to" flexibility of a performance standard. Id.
45. Steven Pinker, The Moral Instinct, N.Y. TIMES MAG., Jan. 13, 2008, at 32, 58, available at http://www.nytimes.com/2008/01/13/ magazine/13Psychology-t.html.
46. The transition in Europe and the United States from a dominion mindset to modem environmentalism took decades if not centuries, and the clash of worldviews remains contested even today. See generally CAROLYN MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY AND THE SCIENTIFIC REVOLUTION (1989);
47. KEITH THOMAS, MAN AND THE NATURAL WORLD: CHANGING ATTITUDES IN ENGLAND, 1500-1800 (Oxford University Press 1996);
48. Jonathan Baert Wiener, Law and the New Ecology: Evolution, Categories, and Consequences, 22 ECOLOGY L.Q. 325 (1995). For a more hopefol view that politics are highly dynamic and that climate change policy may respond to changes in moral understandings,
49. see Jedediah Purdy, Climate Change and the Limits of the Possible, 18 DUKE ENVTL. L. & POL'Y F. (forthcoming 2008).
50. Thomas Jefferson argued, "We are firmly convinced, and we act on that conviction, that with nations, as with individuals, our interests soundly calculated, will ever be found inseparable from our moral duties...." Thomas Jefferson, Second Inaugural Address (Mar. 4, 1805). But it is unclear whether Jefferson meant that moral duty is consequentialist, defined by national "interests soundly calculated"; or whether he meant that a truly enlightened "sound calculation" of interest would aspire to a "moral duty" derived from other axioms; or whether instead he meant something different by "inseparable," as in connected but not identical.
51. See A. CHAYES & A. CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1995);
52. William P. Alford & Benjamin L. Liebman, Clean Air, Clean Processes? The Struggle Over Air Pollution Law in the People's Republic of China, 52 HASTINGS L.J. 703, 714-15 (2001) (noting that "at least some in the [Environment and Natural Resources Protection Committee] and [National Environmental Policy Agency] argued that China's growing engagement with the international community in the years following the original air pollution law's development [in 1987] provided further rationale for its revision[,]" and that "Beijing's [growing] role in ... international environmental fora suggested that there would be costs in terms of reputational capital to pay for a laggard air quality regime"). China's leaders' concerns about the image of pollution at the 2008 Olympics in Beijing crystallize this point.
53. See Jim Yardley, Beijing's Olympic Quest: Turn Smoggy Skies Blue, N.Y. TIMES, Dec. 29, 2007, at Al, available at http://www.nytimes.com/2007/12/29/world/asia/29china/html.
54. See sources cited supra note 19;
55. Richard S.J. Tol, Estimates of the Damage Costs of Climate Change: Part I: Benchmark Estimates, 21 ENVTL. & RESOURCE ECON. 47 (2002);
56. Richard S.J. Tol, Estimates of the Damage Costs of Climate Change: Part II: Dynamic Estimates, 21 ENVTL. & RESOURCE ECON. 135 (2002).
57. See ERDA LIN & JI ZOU, CLIMATE CHANGE IMPACTS AND ITS ECONOMICS IN CHINA (2006), available at http://www.hm-treasury.gov.uk/media/ 8/1/stern_review_China_impacts.pdf (prepared for the Stern Review);
58. PEOPLE'S REPUBLIC OF CHINA, NAT'L DÌV. & REFORM COMM'N, CHINA'S NATIONAL CLIMATE CHANGE PROGRAMME 17 (2007), available at http://en.ndrc.gov.cn/newsrelease/P020070604561191006823. pdf.
59. A key question in continuing research is the amount and pattern of precipitation in China, and its dependence on the climate effects of the Tibetan Plateau. Richard Tol reports that most models show precipitation in China increasing overall with global warming, but one model shows precipitation declining-that model is the Chinese Meteorological Office model, which is among the best at depicting the Tibetan Plateau, and is likely to be influential with Chinese government leaders. Personal communication From Richard Tol to Author at the EMF meeting in Dublin, Ireland (Feb. 22, 2008).
60. See A Large Black Cloud, supra note 12;
61. see also THE WORLD BANK & STATE ENVTL. PROT. ADMIN., PEOPLE'S REPUBLIC OF CHINA, COSTS OF POLLUTION IN CHINA, at xvii (2007) (citing a cost of 5.78 percent of GDP);
62. Elizabeth C. Economy, The Great Leap Backward?, FOREIGN AFF., Sept./Oct. 2007, at 38,47 (citing the 400,000 to 750,000 deaths figures and noting that Beijing wanted these numbers removed from the World Bank/SEPA report).
63. David G. Streets, Black Smoke in China and Its Climate Effects, 4 ASIAN ECON. PAPERS 1 (2005);
64. Fei Teng & Alun Gu, Climate Change: National and Local Policy Opportunities in China (Fondazione Eni Enrico Mattei, Working Paper No. 74.2007, 2007).
65. China's leaders are no doubt motivated by a variety of factors, among them power (both internal and external, reflected in China's doctrine of "peaceful rise" to great power status), prosperity (economic growth through a market economy), and long-term stability and durability for their regime. See Zheng Bijian, China's "Peaceful Rise" to Great-Power Status, FOREIGN AFF., Sept/Oct. 2005. Hexie shehui, "harmonious society," is the official doctrine of Hu Jintao's government, adopted in October 2006 by the Communist Party of China. Its focus is on resolving tensions over growth, inequality, and pollution.
66. See Xing Zhigang, Plan Unveiled to Build Harmonious Society, CHINA DAILY, Oct. 12, 2006, at 1, available at http://www.chinadaily.com.cn/china/2006-10/12/content_706359.htm. The doctrine signaled a shift in the party's focus from promoting all-out economic growth to solving worsening social tensions. The endorsement, made at a closed-door plenary session held by the party's Central Committee, underlined Hu's increasing power. It effectively enshrined his doctrine in the same pantheon as those of Mao Zedong and other predecessors. China's leaders have become concerned in recent years about problems tied to the country's blistering economic growth. Anger over a growing gap between rich and poor and an inadequate social security system is feared to threaten the party's stability.... The four-day plenary session, which ended Wednesday, was the first in 25 years to focus on social issues rather than on economic or political development.... Experts said this year's plenary session was especially significant because initiatives in areas such as health, education and social welfare were more dramatic and comprehensive than usual. The session also focused on rural unrest and the environment.
67. Maureen Fan, China's Party Leadership Declares Neu; Priority: "Harmonious Society": Doctrine Proposed by President Hu Formally Endorsed, WASH. POST, Oct. 12, 2006, at A18, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/ 10/11/AR2006101101610.html.
68. Hu's proposal for "harmonious society" included environmental protection as a key element. See Building Harmonious Society Crucial for China's Progress: Hu, PEOPLE'S DAILY ONLINE, June 27, 2005, http://english.peopledaily.com.cn/200506/27/eng20050627_192495.html.
69. Two years on, the exact meaning of the doctrine remains unclear; at the least, though, it encompasses greater openness to public participation, often about environmental issues. The protests over the Xiamen chemical plant in 2007 are illustrative. See Howard French, Letter From China: A "Harmonious Society" Hearing Different Notes, INT'L HERALD TRIB., Jan. 4, 2008, http://www.iht.com/articles/2008/ 01/04/asia/letter.php.
70. The core motivation for undertaking reforms now is to avoid more costly dislocations later. See WING THYE WOO, A HARMONIOUS SOCIALIST SOCIETY OR BUST: CHINA'S QUEST FOR SUSTAINABLE DEVELOPMENT (2006), available at http://www.brookings.edu/~/media/Files/rc/papers/2006/ 1201globaleconomics_woo/20061206woo.pdf.
71. WOO, supra note 38, at 7 ("The... Hu-Wen leadership... has concluded that far-reaching reforms are less dangerous than partial reforms.").
72. See Jim Yardley, China Retools Its Government in Efficiency Push, N.Y. TIMES, Mar. 12, 2008, at A12, available at http://www.nytimes.com/2008/03/12/world/asia/12china.html.
73. See Economy, supra note 36.
74. Id.
75. Elizabeth Economy notes that in 2006, the Chinese government reported 1,000 environmental protests per week, and in May 2007 there were major protests involving 7,000 to 20,000 marchers against a proposed petrochemical facility in Xiamen. Id.;
76. see also A Large Black Cloud, supra note 12 (detailing protests over pollution and land expropriation).
77. See Alford & Liebman, supra note 32, at 748 ("It was only when the central leadership began to appreciate the extent to which environmental problems might be destabilizing and to mount vigorous national campaigns to foster environmental awareness that the ENRPC was able to push through strong air pollution legislation.").
78. This scenario might seem like the kind of cultural transformation that yields new laws, as discussed above in Part II. But here the portended protests would arise from domestic responses to environmental hazards in China, not from external exhortations to adopt a new cultural or moral outlook. To be sure, though, the two may be connected. For example, both influences would be at play via internet communications among NGOs.
79. Gergana Yancheva et al., Influence of the Intertropical Convergence Zone on the East Asian Monsoon, 445 NATURE 74, 76 (2007);
80. David D. Zhang et al., Climate Change and War Frequency in Eastern China Over the Last Millennium, 35 HUM. ECOLOGY 403 (2007).
81. I am grateful to Jonathan Ocko and Xin Dai for explanation of this belief system. I recognize that one must be cautious in attempting to interpret cultural traditions in another society (or even one's own). Evidently Tian Ren Gan Ying was originally a mixture of orthodox Confucianism (roughly before 200 B.C.), Taoism, and Yin-Yang theory but later evolved as one of the cote theories of the revised Confucianism (since 200 B.C.) that was part of imperial China's governing ideology and to an extent remains a popular world view today. Its "mandate from heaven" and "correspondence" theory implies that how the governing class do their work will have reflections in the climate and other natural conditions; a natural disaster or extreme weather indicates that the emperor has done something wrong. An abrupt calamity could mean that his rule is coming to its end. On the philosophy of Dong Zhongshu (aka Tung Chung-shu), see Tung Chung-shu, in ENCYCLOPEDIA BRITANNICA, http://www.britannica.com/eb/print?articleId=737686&fullArticle= true&tocId=9073768 (last visited May 10, 2008),
82. and SARAH A. QUEEN, FROM CHRONICLE TO CANON: THE HERMENEUTICS OF THE SPRING AND AUTUMN, ACCORDING TO TUNG CHUNG-SHU (1996).
83. Personal communication from Jonathan Ocko, Chair, History Department, North Carolina State Univ., to author (Jan. 2008) (email on file with author).
84. China's Weather: Frozen Assets, ECONOMIST, Feb. 9, 2008, at 44;
85. Snowbound China: Megaphone Apology, ECONOMIST, Feb. 9, 2008, at 12.
86. The Chinese media blamed climate change for the disaster. See Zhong Guo De Qiang Yu Xue Yu Quan Qiu Nuan Hua You Guan [China's Storm Is Related to Global Warming], ZAOBAO.COM, Jan. 30, 2008, http://www.zaobao.com/ special/china/others/pages/snow080130d.shtml.
87. See TIMUR KURAN, PRIVATE TRUTHS, PUBLIC LIES: THE SOCIAL CONSEQUENCES OF PREFERENCE FALSIHCATION (1998);
88. Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 STAN. L. REV. 683 (1999).
89. Bryan Tilt, The Political Ecology of Pollution Enforcement in China: A Case From Sichuan's Rural Industrial Sector, 192 CHINA Q. 915 (2007).
90. See Stefanie Beyer, Environmental Law and Policy in the People's Republic of China, 5 CHINESE J. INT'L L. 185 (2006) (arguing that China now has a comprehensive set of environmental laws, but implementation is impeded by decentralization of power and weak local enforcement);
91. Economy, supra note 36 (detailing local officials' incentives to disfavor environmental protection). Stephanie Beyer notes that [T]he inherent problem of China's environmental legal system is the wide discretion local agencies have in addressing environmental issues. In fact, local governments have gained considerable administrative and fiscal autonomy from the central government. While achieving more autonomy, local governments have to cope more and more with hard budgetary restrictions. They are responsible for generating most of their own revenue and balancing their own budget. Such a system generates considerable pressure at the local level to compete in attracting and promoting economy-building companies. Local governments very often sponsor or own industries themselves and consider environmental regulations to be incompatible with economic growth. Since environmental protection bureaus obtain their funding from subnational governments of which they are part, the enforcement of environmental policies faces significant financial constraints and is frequently undermined by economic pressure. Although the State Environmental Protection Agency has formal authority over lower-level agencies, this national agency does not have much leverage in ensuring that national regulations and standards are strictly enforced at the local level. Besides, numerous national pollution standards are so lenient that they hardly have an effect.
92. Beyer, supra, at 209-10.
93. See Economy, supra note 36;
94. Tilt, supra note 50.
95. Wenbao is the "warm and foil" feeling of prosperity; huanbao is "environmental protection." See Tilt, supra note 50, at 932.
96. 2 emissions from China's vast coal-fired electricity sector.
97. See Shulin Gu & Bengt Åke-Lundvall, China's Innovation System and the Move Touiard Harmonious Growth and Endogenous Innovation, 8 INNOVATION: MGMT., POL'Y & PRAC. 1 (2006), available at http://www.innovation-enterprise. eom/8.1/8.1.1.html.
98. See EMBASSY BEIJING, CHINA'S EMISSIONS TRADING PILOT PROJECTS (2003), available at http://www.usembassy-china.org.cn/sandt/ptr/Emissions- Trading-prt.htm;
99. Emissions Trading Fights Pollution, CHINA DAILY, Sept. 30, 2004, at 5, available at http://daxinganling.china.com.cn/english/ environment/108505.htm (describing efforts of Dan Dudek of Environmental Defense);
100. Richard Morgenstern et al., Demonstrating Emissions Trading in Taiyuan, China, RESOURCES, Summer 2002, at 7.
101. Douglas Kysar & Ya-Wei Li, Regulating From Nowhere: Domestic Environmental Law and the Nation-State Subject, (Cornell Law Sch., Legal Studies Research Paper No. 07-011, 2008), available at http://ssrn.com/abstract=995301.
102. Kysar and Li are right to emphasize accounting for the external international impacts of national decisions, but wrong to say that benefit-cost analysis cannot do so.
103. The same point has been made in a report to the U.S. Department of Defense on climate and national security risks. See PETER SCHWARTZ & DOUG RANDALL, AN ABRUPT CLIMATE CHANGE SCENARIO AND ITS IMPLICATIONS FOR UNITED STATES NATIONAL SECURITY 13, 17-19 (2003).
104. See Sunstein, supra note 4.
105. See generally JOSEPH QUINLAN, THE RISE OF CHINA: A BRIEF REVIEW OF THE IMPLICATIONS ON TRANSATLANTIC PARTNERSHIP (2006);
106. Robert Kagan, End of Dreams, Return of History, POL'Y REV., Aug. & Sept. 2007, available at http://www.hoover.org/ publications/policyreview/8552512.html;
107. FAREED ZAKARIA, THE POST- AMERICAN WORLD (2008).
108. See Avery Goldstein, The Diplomatic Face of China's Grand Strategy: A Rising Power's Emerging Choice, 168 CHINAQ. 835, 845 (2001).
109. See ZhongXiang Zhang, China, the United States and Technology Cooperation on Climate Control, 10 ENVT'L SCI. & POL'Y 622, 624-25 (2007).
110. Bali Action Plan, supra note 2, at 3. At the same time, China's leaders do not want to incur heavy costs by agreeing to burdensome emissions limits, or to lose face by failing to attain such targets.
111. Effective side payments might take a variety of forms, including cash (as in the Montreal Protocol Fund to engage China and India), headroom tradable allowances (as in the U.S. acid rain trading program to engage Midwestern states, or the Kyoto Protocol to engage Russia), see Wiener, supra note 6, or linkage to other issues, such as trade, energy demand, currency holdings in investments, IP rights, relations over Taiwan and North Korea, or terrorism. There is always some cost associated with making side payments; headroom allowances in an emissions trading system can be the least inefficient mode.
112. See id.
113. See STEWART & WIENER, supra note 5.
114. This approach is detailed in STEWART & WIENER, supra note 5.
115. The cap-and-trade system would confer net benefits (through allowance sales) on China, India, and other developing countries to attract them to participate, while at the same time substantially reducing the cost of abating GHG emissions in the United States, Europe and other industrialized countries. Id.
116. Other options include a carbon tax, subsidies for research and development, trade sanctions, consumer pressure on suppliers, or geo-engineering. For comparison of various policy options, see id., and ARCHITECTURES FOR AGREEMENT: ADDRESSING GLOBAL CLIMATE CHANGE IN THE POST- KYOTO WORLD (Joseph E. Aldy & Robert N. Stavins eds., 2007). Local policies can encourage experimentation and can motivate larger-scale action, but alone they risk serious leakage and can hinder meshing into a larger national and global policy regime.
117. See Wiener, supra note 14.
118. While a global regime of all major emitters would be ideal, the possibility of plurilateral climate regimes is discussed in STEWART & WIENER, supra note 5,
119. and generally in James N. Rosenau, Governing the Ungovernable: The Challenge of a Global Disaggregation of Authority, 1 REG. & GOVERNANCE 88 (2007) (on multiple overlapping spheres of authority).
120. See STEWART & WIENER, supra note 5;
121. Wiener, supra note 6. Similar proposals have also been made in Jonathan Baert Wiener, Designing Global Climate Regulation, in CLIMATE CHANGE POLICY 151 (Stephen Schneider et al. eds., 2002);
122. Jeffrey Frankel, Formulas for Quantitative Emission Targets, in ARCHITECTURES FOR AGREEMENT, supra note 66, at 31;
123. Robert Hahn & Peter Passell, Time to Change U.S. Climate Policy, ECONOMISTS' VOICE, Nov. 2007, at 1, available at http://www.reg-markets.org/policy/page.php?id=300;
124. Sheila M. Olmstead & Robert N. Stavins, An International Policy Architecture for the Post-Kyoto Era, AM. ECON. REV., May 2006, at 35;
125. Robert N. Stavins, Addressing Climate Change With a Comprehensive U.S. Cap-and-Trade System (AEI-Brookings Joint Ctr. for Regulatory Studies, Related Publication No. 07-26, 2007), available at http://www.reg- markets.org/admin/authorpdfs/page.php?id=1426.
126. Bali Action Plan, supra note 2, at 3.
127. See ZhongXiang Zhang, Why Has China Not Embraced a Global Cap-and-Trade Regime?, 7 CLIMATE POL'Y 166 (2007). Zhang argues that China's reluctance is not due to anti-market ideology, as exhibited in the United States in the 1970s, to join a cap-and-trade system, but rather is due to concerns about fairness, the high cost of a cap, holding out for a better deal, and perceiving that it is a better deal to sell Clean Development Mechanism (CDM) credits now at nearly the same price than to sell formal allowances with a cap. Id.
128. See Ning Zeng et al., Climate Change - The Chinese Challenge, 319 SCIENCE. 730 (2008) (suggesting China's potential openness to a GHG tax or other limitations policy that reduces coal use in China, if it can be designed to support China's economic development). In turn, in early 2008, the Bush Administration's top U.S. climate official said that the United States could join a quantitative cap-and-trade regime, if China would too.
129. See James Kanter & Andrew C. Revkin, Binding Emissions Treaty Still a Possibility, U.S. Says, N.Y. TIMES, Feb. 27, 2008, at A8, available at http://www.nytimes.com/2008/02/27/world/europe/ 27climate.html?ref=world.
130. See generally HENRY KISSINGER, A WORLD RESTORED: METTERNICH, CASTLEREAGH, AND THE PROBLEMS OF PEACE, 1812-1822 (Phoenix Press 2000) (1957).