Geoengineering governance

Issues in Legal Scholarship

Volumn 8, Issue 3, 2009, Pages

  Lin, Albert C ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

Climate change; Environmental governance; Geoengineering

Indexed keywords

EID: 68949149404     PISSN: None     EISSN: 15398323     Source Type: Journal    
DOI: 10.2202/1539-8323.1112     Document Type: Article

References (184)

1. See American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong. § 703 (2009) (requiring 83% reduction in emissions from covered entities by 2050).
2. See, e.g., Malte Meinshausen et al., Greenhouse-Gas Emission Targets for Limiting Global Warming to 2°C, 458 NATURE 1158 (2009);
3. see also infra note 52.
4. See Kyoto Protocol to the United Nations Framework Convention on Climate Change, Annex B, Dec. 10, 1997, U.N. Doc. FCCC/CP/1997/L, 7/ADD.1, 37 I.L.M. 32 [hereinafter "Kyoto Protocol"] (listing emissions reduction commitments by individual countries).
5. See infra note 56.
6. See David Biello, How Much Is Too Much?: Estimating Greenhouse Gas Emissions, SCI. AM., Apr. 29, 2009, available at http://www.scientificamerican.com/article.cfm?id=limits-ongreenhouse-gas- emissions.
7. See Alan Carlin, Why a Different Approach Is Required If Global Climate Change Is To Be Controlled Efficiently or Even at All, 32 WM. & MARY ENVTL. L. & POLY REV. 685, 697 (2008).
8. See, e.g., Paul Crutzen, Albedo Enhancement By Stratospheric Sulfur Injections: A Contribution to Resolve a Policy Dilemma?, 77 CLIMATIC CHANGE 211, 211-12 (2006);
9. Jay Michaelson, Geoengineering: A Climate Change Manhattan Project, 17
10. STAN. ENVTL. L.J. 73, 87-98 (1998) (urging consideration of geoengineering in light of "difficulties of cost, equity, complexity, disagreement, and institutional efficacy" associated with emissions reductions);
11. David G. Victor et al., The Geoengineering Option, FOREIGN AFFAIRS, Mar./Apr. 2009, at 64;
12. Alok Jha, Obama Climate Adviser Open to Geoengineering to Tackle Global Warming, GUARDIAN.CO.UK, Apr. 8, 2009, available at http://www.guardian.co.uk/environment/2009/apr/08/geo- engineering-johnholdren.
13. See David W. Keith, Geoengineering, in ENCYCLOPEDIA OF GLOBAL CHANGE: ENVIRONMENTAL CHANGE AND HUMAN SOCIETY 495, 497 (Andrew S. Goudie, ed., 2002);
14. see generally NATIONAL ACADEMY OF ENGINEERING, NATIONAL RESEARCH COUNCIL, THE CARBON DIOXIDE DILEMMA: PROMISING TECHNOLOGIES AND POLICIES (2003).
15. See Keith, supra note 8, at 498 (estimating that 20% of carbon sequestered would return to the atmosphere over a three-hundred year time period);
16. 2 is very likely to remain underground for over one hundred years).
17. See Keith, supra note 8, at 498.
18. See Alexandra B. Klass & Elizabeth J. Wilson, Climate Change and Carbon Sequestration: Assessing a Liability Regime for Long-Term Storage of Carbon Dioxide, 58 EMORY L.J. 103, 118-19 (2008).
19. See, e.g., id. at 158-78 (proposing federal governance model for managing liability for CCS projects).
20. See id. at 117; Keith, supra note 8, at 497.
21. 2 post-emission. See David W. Keith, Geoengineering the Climate: History and Prospect, 25
22. ANN. REV. ENERGY ENVT 245, 248-49 (2000) [hereinafter "Keith, History"]. Nonetheless, the line between geoengineering and less controversial methods for addressing climate change is not well-established; one commentator suggests that "[g]eoengineering has become a label for technologically overreaching proposals that are omitted from serious consideration in climate assessments." Keith, Geoengineering, supra, at 420.
23. Keith, Geoengineering, supra note 14, at 420.
24. See Crutzen, supra note 7, at 211-12.
25. See id. at 212.
26. See Oliver Morton, Is This What It Takes to Save the World?, 447 NATURE 132, 134 (2007) (reporting modeling results finding temperature and precipitation shifts, notwithstanding fact that warming from emissions and cooling from aerosols largely cancelled each other out);
27. Stephen H. Schneider, Geoengineering: Could - or Should - We Do It?, 33 CLIMATIC CHANGE 291, 297-98 (1996) (explaining that because greenhouse forcing is itself not evenly distributed, the relatively uniform distribution of stratospheric aerosols would not precisely cancel out warming effects in all regions).
28. See Crutzen, supra note 7, at 212-13 (estimating annual cost of $25-50 billion, approximately 2.5-5% of annual global military expenditures).
29. See Simone Tilmes et al., The Sensitivity of Polar Ozone Depletion to Proposed Geoengineering Schemes, 320 SCIENCE 1201 (2008);
30. Crutzen, supra note 7, at 215-16.
31. See Tilmes et al., supra note 20, at 1203-04;
32. Crutzen, supra note 7, at 215-16. Like volcanic eruptions, the release of stratospheric aerosols would also whiten the sky.
33. See Keith, supra note 8, at 496.
34. 2 over several hundred years and that cessation of a sulfur release project would quickly lead to renewed warming).
35. See Scott Barrett, The Incredible Economics of Geoengineering, 39 ENVTL. & RES. ECON. 45, 47 (2008) ("Geoengineering is a stopgap measure, a 'quick fix,' a 'Band-Aid.'").
36. See H. Damon Matthews & Ken Caldeira, Transient Climate-Carbon Simulations of Planetary Geoengineering, 104 PROC. NATL ACAD. SCI. 9949, 9951-52 (2007) (describing how temperatures, previously suppressed by aerosols, would quickly rebound to the levels they would have reached had no geoengineering been implemented).
37. For further discussion regarding the problem of ocean acidification, see Ken Caldeira & Michael E. Wickett, Ocean Model Predictions of Chemistry Changes From Carbon Dioxide Emissions to the Atmosphere and Ocean, 110 J. GEOPHYSICAL RES. C09S04, doi:10.1029/2004JC002671 (2005);
38. Elizabeth Kolbert, The Darkening Sea, NEW YORKER, Nov. 20, 2006, at 66, 69-74. Higher GHG concentrations in the atmosphere may also affect terrestrial ecosystems by changing the competitive balances between different plant species. See Bengtsson, supra note 22, at 231.
39. See Govindswamy Bala, Problems With Geoengineering Schemes to Combat Climate Change, 96 CURRENT SCI. 41, 45-46 (2009).
40. See Morton, supra note 18, at 135 (remarking that the stratosphere "is tied to the troposphere below in complex ways that greenhouse warming is already changing").
41. See id. at 135-36 (describing proposal by Roger Angel);
42. Roger Angel, Feasibility of Cooling the Earth With a Cloud of Small Spacecraft Near the Inner Lagrange Point, 103 PROC. NATL ACAD. SCI. 17, 184 (2006).
43. See Angel, supra note 28, at 17, 184.
44. See Keith, supra note 8, at 497.
45. See Angel, supra note 28, at 17, 188-89.
46. Approximately 16 trillion discs would need to be manufactured and placed in orbit, and the cost of the proposal has been estimated at $5 trillion. See Morton, supra note 18, at 136.
47. See Alan Robock, Whither Geoengineering?, 320 SCIENCE 1166 (2008);
48. Bala, supra note 26, at 45.
49. See James Edward Peterson, Can Algae Save Civilization? A Look at Technology, Law, and Policy Regarding Iron Fertilization of the Ocean to Counteract the Greenhouse Effect, 6 COLO. J. INTL ENVTL. L. & POLY 61, 69-70 (1995) (describing the "iron hypothesis" that iron may be the limiting micronutrient).
50. See id. at 68-69 (describing "biological carbon pump").
51. See id. at 70.
52. See id. at 76 (reporting estimated costs for iron fertilization range from $0.5 billion to $3 billion per billion tons of atmospheric carbon transferred to the deep ocean, less than the cost of reducing equivalent emissions or removing equivalent emissions from power plant smokestacks).
53. See O. Aumont & L. Bopp, Globalizing Results From Ocean In Situ Iron Fertilization Studies, 20 GLOBAL BIOGEOCHEMICAL CYCLES GB 2017 (2006) (reporting results from global ocean model based on iron fertilization experiments and concluding that factors other than iron also influence effectiveness of sequestration, that fertilization outside the Southern Ocean is relatively ineffective, and that fertilization, if carried out, must be performed continuously in order to prevent carbon from returning to atmosphere);
54. Philip W. Boyd et al., Mesoscale Iron Enrichment Experiments 1993-2005: Synthesis and Future Directions, 315 SCIENCE 612 (2007) (summarizing results of various small-scale iron fertilization experiments);
55. Ken O. Buesseler & Philip W. Boyd, Will Ocean Fertilization Work?, 300 SCIENCE 67, 68 (2003) ("ocean iron fertilization may not be a cheap and attractive option if impacts on carbon export and sequestration are as low as observed to date"); see also Peterson, supra note 34, at 74.
56. See Peterson, supra note 34, at 76-77;
57. Stephane Blain et al., Effect of Natural Iron Fertilization on Carbon Sequestration in the Southern Ocean, 446 NATURE 1070, 1073 (2007) (noting "complex interplay between the iron and carbon cycles" and cautioning against assumption that iron fertilization will work based on observed natural phytoplankton bloom).
58. See Peterson, supra note 34, at 77-78.
59. See id. at 78 ("Iron fertilization has the advantage of being limited in duration.").
60. United Nations Framework Convention on Climate Change, art. 2, May 9, 1992, S. TREATY DOC. NO. 102-38, 1771 U.N.T.S. 164, available at http://untreaty.un.org/English/notpubl/unfccc-eng.pdf [hereinafter "Framework Convention"].
61. Kyoto Protocol, supra note 3, art. 3 ¶ 1.
62. See, e.g., American Clean Energy and Security Act of 2009, supra note 1; CALIFORNIA AIR RESOURCES BOARD, CLIMATE CHANGE SCOPING PLAN: A FRAMEWORK FOR CHANGE 27-71 (2008), available at http://www.arb.ca.gov/cc/scopingplan/document/adopted-scoping-plan.pdf (identifying emissions reductions measures, including emission cap and trade program, to meet requirements of Global Warming Solutions Act of 2006, Cal. A.B. 32).
63. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, FOURTH ASSESSMENT REPORT, CLIMATE CHANGE 2007, WORKING GROUP I REPORT: THE PHYSICAL SCIENCE BASIS, SUMMARY FOR POLICYMAKERS 2, 5-6 (2007).
64. See Guy Chazan, Large Firms Agree Carbon Emissions Must Be Cut, WALL ST. J., May 28, 2009, at A18.
65. Cf. Victor et al., supra note 7, at 65-66 (contending that slow progress in cutting emissions and looming danger of sudden adverse consequences require policymakers to consider geoengineering as emergency strategy).
66. See, e.g., Council of the European Union, Climate Change: Medium and Longer-Term Emission Reduction Strategies, Including Targets 2 (2005), available at http://register.consilium.eu.int/pdf/en/05/st07/st07242. en05.pdf;
67. Alan Carlin, Global Climate Change Control: Is There a Better Strategy than Reducing Greenhouse Gas Emissions?, 155 U. PA. L. REV. 1401, 1430 (noting that most major proposals to limit GHG emissions specify a goal of a maximum 2°C rise).
68. See Brian C. O'Neill & Michael Oppenheimer, Dangerous Climate Change Impacts and the Kyoto Protocol, 296 SCIENCE 1971 (2002);
69. 2.
70. 2: Where Should Humanity Aim?, 2 OPEN ATMOSPHERIC SCI. J. 217, 226 (2008) (proposing a goal of 350 ppm - lower than the current atmospheric concentration of 385 ppm - as necessary to prevent melting of the Greenland and Antarctic ice sheets). See also Carlin, supra note 6, at 697-98 (discussing uncertainties involved in climate modeling and questioning whether it is possible to determine justifiable goals as to atmospheric GHG levels).
71. See Carlin, supra note 6, at 697;
72. Julienne Stroeve et al., Arctic Sea Ice Decline: Faster than Forecast, GEOPHYSICAL RES. LETTERS, vol. 34, L09501, doi:10.1029/2007GL029703.
73. See UNION OF CONCERNED SCIENTISTS, HOW TO AVOID DANGEROUS CLIMATE CHANGE: A TARGET FOR R U.S. EMISSIO NS REDUCTIONS 1 (2007), available at http://www.ucsusa.org/global- warming/solutions/big-picture-solutions/a-target-for-usemissions.html;
74. see also INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, FOURTH ASSESSMENT REPORT, CLIMATE CHANGE 2007: SYNTHESIS REPORT, SUMMARY FOR POLICYMAKERS 20 (20 07), availabl e at http://www.ipcc.ch/pdf/assessmentreport/ar4/syr/ar4-syr-spm.pdf (Table SPM.6 listing GHG stabilization scenarios, required emissions reductions, and projected mean global temperature changes);
75. 2 that can be emitted).
76. See NICHOLAS STERN, THE ECONOMICS OF CLIMATE CHANGE: THE STERN REVIEW 243, 264 (2006);
77. Michael P. Vandenbergh et al., Individual Carbon Emissions: The Low-Hanging Fruit, 55 UCLA L. REV. 1701 (2008).
78. See STERN, supra note 53, at 191 (estimating that costs of reducing GHG emissions to avoid the worst impacts of climate change can be limited to around 1% of global GDP each year); cf. Carlin, supra note 6, at 721-24 (arguing that contemplated reductions are unrealistic, given behavioral changes and energy efficiency improvements that would be necessary). The cap-and-trade portion of the Waxman-Markey legislation currently under consideration in Congress - which takes only a small step towards achieving the necessary emissions reductions - is predicted by the Congressional Budget Office to cost each household an average of $175 per year. See Congressional Budget Office, The Estimated Costs to Households from the Cap-and-Trade Provisions of H.R. 2454, June 19, 2009, available at http://www.cbo.gov/ftpdocs/103xx/doc10327/06-19-CapAndTradeCosts.pdf. The EPA predicts that as a whole, the legislation actually will save each household $80 to $111 each year. See EPA Analysis of the American Clean Energy and Security Act of 2009 H.R. 2454 in the 111th Congress, June 23, 2009, available at http://www.epa.gov/climatechange/economics/pdfs/ HR2454-Analysis.pdf.
79. See Kyoto Protocol, supra note 3, Annex B.
80. See, e.g., SCOTT BARRETT, WHY COOPERATE?: THE INCENTIVE TO SUPPLY GLOBAL PUBLIC GOODS 92-93 (2007) (noting concession by Canada that its emissions in 2010 will be at least 45% above its Kyoto target);
81. Carlin, supra note 48, at 1431 (reporting projections that many EU signatories will not meet Kyoto targets);
82. see also Carlin, supra note 6, at 720-21 (arguing it is politically unrealistic to expect politicians to force constituents to adopt the measures necessary to reduce emissions).
83. See Carlin, supra note 48, at 1432;
84. Tony Grayling, Beyond Kyoto, 10 NEW ECON. 125, 125 (2003) ("Kyoto is little more than a very small first step towards addressing climate change.");
85. O'Neill & Oppenheimer, supra note 49, at 1971 (noting that "the emissions limits required by the Kyoto Protocol would reduce warming only marginally").
86. See BARRETT, supra note 56, at 6.
87. All of this assumes agreement that climate change presents a problem in the first instance. At least in the short term, some countries, such as Russia, might benefit from higher agricultural yields, lower winter mortality, and reduced heating requirements. See STERN, supra note 53, at 138.
88. See Carlin, supra note 6, at 725-26 (contending that full implementation of emissions reduction commitments by individual nations is not likely, given political opposition, weak political capacity, and role of individual and corporate decisions);
89. Carlin, supra note 48, at 1442-43 (noting lack of effective enforcement mechanisms under Kyoto and other international agreements).
90. 2 concentrations and temperature).
91. See generally Lisa Schenck, Climate Change "Crisis" - Struggling for Worldwide Collective Action, 19 COLO. J. INTL ENVTL. L. & POLY319 (2008) (discussing barriers to international cooperation and issues to be addressed).
92. See, e.g., Carlin, supra note 6, at 706-16;
93. Crutzen, supra note 7, at 217 (expressing preference for emissions reductions, but suggesting that alternative responses should be researched);
94. James Hansen et al., Climate Change and Trace Gases, 365 PHIL. TRANS. R. SOC. A 1925, 1950 (2007) (concluding that "the dangerous level of atmospheric GHGs will be passed, at least temporarily," even assuming emissions reduction efforts, and suggesting that "a feasible strategy for planetary rescue almost surely requires a means of extracting GHGs from the air").
95. Victor et al., supra note 7, at 69;
96. see Barrett, supra note 23, at 49 (describing economics of some geoengineering proposals as "incredible" compared to cost of emissions reductions).
97. See Victor et al., supra note 7, at 69;
98. Carlin, supra note 6, at 739 (claiming the marginal cost of stratospheric aerosol release to be about 1/10, 000 that of emissions reductions).
99. See Keith, supra note 8, at 500;
100. Thomas C. Schelling, The Economic Diplomacy of Geoengineering, 33 CLIMATIC CHANGE 303, 306 (1996) (contending that, compared to reducing emissions, geoengineering "is certainly way ahead in administrative simplicity").
101. See Michaelson, supra note 7, at 118-19.
102. See Carlin, supra note 6, at 736;
103. Michaelson supra note 7, at 110-14 (contending that geoengineering leaves powerful actors and their interests relatively intact and imposes "almost no social costs").
104. See Morton, supra note 18, at 133.
105. See Carlin, supra note 6, at 739.
106. See supra note 24.
107. See, e.g., Crutzen, supra note 7, at 216;
108. Barrett, supra note 23, at 46.
109. See Carlin, supra note 6, at 690-91 (discussing various uncertainties caused by complexity of Earth's climate system);
110. Morton, supra note 18, at 134 (stating that general circulation models "do not provide a perfect understanding of the climate system").
111. Cf. Jeffrey T. Kiehl, Geoengineering Climate Change: Treating the Symptom Over the Cause?, 77 CLIMATIC CHANGE 227, 227 (2006) (contending that geoengineering projects represent "the ultimate state of hubris to believe we can control the Earth").
112. See Victor et al., supra note 7, at 66 (noting that geoengineering strategies have been "widely shunned" because "they would not stop the buildup of carbon dioxide or lessen all its harmful impacts").
113. See Morton, supra note 18, at 133 (noting ocean acidification as one reason why geoengineering would not eliminate the need for emissions reductions).
114. See Matthews & Caldeira, supra note 24, at 9952-53 (explaining that "geoengineering is not an alternative to decreased emissions" because decreasing emissions reduces environmental risk, whereas continued emissions, combined with geoengineering, increases environmental risk).
115. See Bengtsson, supra note 22, at 230.
116. See Kiehl, supra note 74, at 227-28 (contending that "we need to address the fundamental issue of value before tinkering with a system that we do not completely understand");
117. Keith, supra note 8, at 500-01 (discussing ethical objections to geoengineering);
118. Schneider, supra note 18, at 300 ("since human systems have already disturbed nature in the first place, . . . the risks of countering inadvertent human impacts on nature should next be borne by humans, not an already besieged nature");
119. see also Michaelson, supra note 7, at 127-29 (setting out argument that geoengineering is "unnatural" and responses to that argument).
120. See Keith, supra note 8, at 500;
121. Schneider, supra note 18, at 295 (noting taboo).
122. See Keith, History, supra note 14, at 276. Geoengineering proposals may seem "painless" only because adverse effects have yet to be identified.
123. While some customary or soft law instruments, such as the Stockholm Declaration and Rio Declaration, may be indirectly relevant to geoengineering, the principles found in these instruments tend to be very general in nature, and in any case are not readily enforceable. See Peterson, supra note 34, at 79-84 (discussing soft law instruments that might be applicable).
124. See PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 126 (2d ed. 2003).
125. See UNFCCC, The United Nations Framework Convention on Climate Change, http://unfccc.int/essential-background/convention/items/2627.php (last visited July 6, 2009) (stating that 192 countries - almost all the nations of the world - have ratified the FCCC).
126. See Daniel Bodansky, May We Engineer the Climate?, 33 CLIMATIC CHANGE 309, 313 (1996).
127. See Framework Convention, supra note 42, art. 4 (Commitments);
128. Bodansky, supra note 85, at 313 (observing that the FCCC "has relatively little to say about climate engineering specifically; but it is likely that the institutions created by the Convention would provide the principal international fora for consideration of climate-engineering proposals"). The FCCC does establish a Conference of the Parties, which is required to evaluate periodically the implementation of the convention to ensure that the parties' commitments are adequate. Framework Convention, supra note 42, art. 7(2)(a), 7(2)(e).
129. See Bodansky, supra note 85, at 311 (contending that the U.N. Environment Programme's Weather Modification Guidelines concern only the modification of atmospheric properties in regional contexts and that the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) applies only to environmental modification for hostile purposes);
130. see also id. at 314 (discussing potential applicability of other treaties to particular types of geoengineering);
131. 2 sequestration).
132. Cf. DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW & POLICY 670 (3d ed. 2007) (noting that FCCC "did establish an institutional framework for the progressive development of the [climate change] regime through protocols or amendments").
133. See id. at 298, 303 (noting that process of informal exchange leading up to formal treaty negotiations "may continue for years" and that the negotiations themselves "often drag on for years").
134. See JOANNA DEPLEDGE, THE ORGANIZATION OF GLOBAL NEGOTIATIONS: CONSTRUCTING THE CLIMATE CHANGE REGIME 92 (2005) (distinguishing consensus from unanimity, with the former "defined negatively to mean that there are no stated or formal objections to a decision").
135. See David A. Wirth, Reexamining Decision-Making Processes in International Environmental Law, 79 IOWA L. REV. 769, 791 (1994);
136. Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?. 93 AM. J. INTL L. 596, 607 (1999) (noting problems associated with consensus decision making).
137. See Victor et al., supra note 7, at 71-72;
138. Keith, supra note 8, at 500 (noting that harmful climatic events may be blamed on operators of geoengineering projects).
139. See BARRETT, supra note 56, at 74 (noting that addressing environmental issues typically involves the aggregation of nations' efforts).
140. See id. at 1-21.
141. See id. at 6, 101.
142. See id. at 93, 101. To encourage widespread international participation in emissions reductions, some commentators have advocated the linkage of trade sanctions with emissions performance, and such matters are likely to be the subject of the next round of climate change negotiations. See, e.g., Paul Krugman, Editorial, Empire of Carbon, N.Y. TIMES, May 15, 2009, at A39 (raising possibility of imposing trade sanctions on China if it does not cooperate in reducing emissions);
143. see also A Special Report on the World Economy: Beyond Doha, ECONOMIST, Oct. 11, 2008, at 68 (discussing option of trade sanctions against countries that do not reduce emissions). Enforcement by the United Nations Security Council offers another possible means to compel emissions reductions. See Christopher K. Penny, Greening the Security Council: Climate Change as an Emerging "Threat to International Peace and Security," 7 INTL ENVTL. AGREEMENTS: POLITICS, LAW & ECON. 35 (2007).
144. See BARRETT, supra note 56, at 38.
145. See id. at 2-3, 20, 23.
146. See id. at 41 ("A geoengineering treaty needs to be part of a coordinated response to the threat of global climate change: a protocol, one of many probably, under a comprehensive umbrella convention on global climate change.").
147. See Victor et al., supra note 7, at 71-72.
148. This would likely require a revision of the FCCC to embrace a wider objective of reducing climate change risk. See Barrett, supra note 23, at 53.
149. See Framework Convention, supra note 42, art. 3(1).
150. Thus far, the Conference of the Parties has chosen to use the Subsidiary Body for Scientific and Technological Advice primarily for obtaining advice rather than for generating new scientific information. See Dagmar Lohan, Assessing the Mechanisms for the Input of Scientific Information into the UNFCCC, 17 COLO. J. INTL ENVTL. L. & POLY 249, 257-62 (2006).
151. Cf. Daniel C. Esty, The Case for a Global Environmental Organization, in MANAGING THE WORLD ECONOMY: FIFTY YEARS AFTER BRETTON WOODS 287, 292 (Peter B. Kenen ed., 1994) (advocating comprehensive approaches to solving environmental problems, rather than ad hoc issue-by-issue management).
152. See Victor et al., supra note 7, at 74 (contending that international research effort would "transform the discussion about geoengineering from an abstract debate into one focused on real risk assessment," "could secure funding and political cover for essential but controversial experiments," and would facilitate the development of norms that "would make countries less trigger-happy and more inclined to consider deploying geoengineering systems in concert rather than on their own"); Ralph J. Cicerone, Geoengineering: Encouraging Research and Overseeing Implementation, 77 CLIMATIC CHANGE 221, 223 (2006) (explaining that refereed papers on geoengineering topics "will permit poor or dangerous ideas to be seen as such and meritorious ones to develop further").
153. See Mark G. Lawrence, The Geoengineering Dilemma: To Speak or Not to Speak, 77 CLIMATIC CHANGE 245, 246 (2006).
154. See Bodansky, supra note 85, at 310 (noting that international rules governing global commons "are generally permissive: they allow states to use the global commons freely, subject only to very general standards to prevent pollution, consult with others and so forth"). In his 1996 article on geoengineering, however, Bodansky was relatively unconcerned that a country would proceed with a geoengineering project on its own because of his view that it "would be unwilling to incur the political costs of proceeding without international approval." Id.
155. See Victor et al., supra note 7, at 72 (noting possibility that "private sector could emerge as a potent force by becoming an interest group that pushes for deployment or drives the direction of geoengineering research and assessment").
156. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, art. 1(1), 31 U.S.T. 333, 1108 U.N.T.S. 152, reprinted in 16 I.L.M. 88 [hereinafter "ENMOD"] ("Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.").
157. See http://disarmament.un.org/TreatyStatus.nsf/ ENMOD%20(in%20alphabetical%20order) ?OpenView. ENMOD has been described as relatively "unused"; during its quarter century of existence, no state Party has been formally accused of a violation and only two review conferences have been held. See Susana Pimiento Chamorro & Edward Hammond, Addressing Environmental Modification in Post-Cold War Conflict, at 14 (2001), available at http://www.edmondsinstitute.org/pimiento.html.
158. See ENMOD, supra note 109, art. 1(1).
159. See generally ENMOD, supra note 109;
160. see also Chamorro & Hammond, supra note 110 (listing concerns);
161. Charles R. Wunsch, The Environmental Modification Treaty, 4 ASILS INTL L.J. 113, 128-30 (1980) (noting difficulties in enforcement).
162. Such promises would be similar to mutual defense promises that underlie military alliances. See BARRETT, supra note 56, at 138 (discussing NATO and Non-Proliferation Treaty).
163. See Bodansky, supra note 91, at 607.
164. See Wirth, supra note 91, at 792-97 (pointing to examples of nonconsensual approaches in international law);
165. Bodansky, supra note 91, at 608 (discussing Hague Declaration, which endorsed institutional authority with nonunanimous decision making power to address climate change).
166. Cf. Bodansky, supra note 91, at 604.
167. See id. at 604 (noting "predominant role" of specific consent in formation of international environmental law).
168. See id. at 604.
169. See id. at 604, 609; Wirth, supra note 91, at 792 (stating that "[a]mendments to existing multilateral agreements are particularly promising candidates for nonconsensus techniques").
170. See Framework Convention, supra note 42, art. 15 (providing that an amendment may be adopted by a 3/4 majority vote, but that such amendment is binding only on parties who have accepted it).
171. For example, the Montreal Protocol, the largely successful agreement to phase out the use of ozone-depleting substances, allows a qualified majority to tighten controls on regulated substances. See Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, art. 2(9), 26 I.L.M. 1541 (entered into force Jan. 1, 1989);
172. Bodansky, supra note 91, at 604 & n.47. Other environmental treaties where binding decisions may be adopted without unanimity include certain maritime pollution agreements and agreements establishing harvest limits for whales and seals. See Wirth, supra note 91, at 795 & nn.116-122. In addition, three bodies set up under the Kyoto Protocol do allow for majority voting as a last resort for decisions made within their limited jurisdiction. See DEPLEDGE, supra note 90, at 103.
173. See generally Jutta Brunnée, The United States and International Environmental Law: Living with an Elephant, 15 EUR. J. INTL L. 617, 636-37 (2004) (describing framework-protocol approach commonly found in international environmental agreements).
174. The concept of adaptive management has been defined as "an iterative, incremental decisionmaking process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly." J.B. Ruhl, Regulation by Adaptive Management: Is It Possible?, 7 MINN. J.L. SCI. & TECH. 21, 28 (2005);
175. see also Holly Doremus, Precaution, Science, and Learning While Doing in Natural Resource Management, 82 WASH. L. REV. 547, 568-70 (2007).
176. See Rosie Cooney & Andrew T.F. Lang, Taking Uncertainty Seriously: Adaptive Governance and International Trade, 18 EUR. J. INTL L. 523, 534-39 (2007) (explaining concept of adaptive governance).
177. See id.
178. See Matthews & Caldeira, supra note 24, at 9952.
179. Cf. Cass Sunstein, Irreversible and Catastrophic, 91 CORNELL L. REV. 841 (2006) ("If more accurate decisions can be made in the future, then there is a (bounded) value to putting the decision off to a later date. The key point is that uncertainty and irreversibility should lead to a sequential decision-making process.").
180. See Katharine Ricke et al., Unilateral Geoengineering: Non-Technical Briefing Notes for a Workshop at the Council on Foreign Relations, May 5, 2008, at 10, available at http://www.cfr.org/content/thinktank/ GeoEng-041209.pdf (sketching out two examples of climate surprises).
181. Cf. DEPLEDGE, supra note 90, at 97 (noting that provision of assurances to reluctant parties that issues of importance to them will be considered in the future can serve as a procedural safety valve).
182. See Marc A. Levy et al., Improving the Effectiveness of International Environmental Institutions, in INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL PROTECTION 397, 413-14 (Peter M. Haas et al. eds., 1993).
183. See Ricke et al., supra note 128, at 12 (discussing norm-building as a complementary approach to treaties for managing geoengineering, and noting that "similar norms emerged around the deployment of nuclear weapons"); see generally SANDS, supra note 83, at 147 ("State practice in treaty-making and in accordance with obligations under treaties can contribute to the development of customary law.").
184. With respect to aerosol release, for example, Matthews and Caldeira point out that "inconsistent or erratic deployment (either because of shifting public opinions or unilateral action by individual nations)" might lead to "large and rapid temperature oscillations." Matthews & Caldeira, supra note 24, at 9952.