Ways of seeing in environmental law: How deforestation became an object of climate governance

Ecology Law Quarterly

Volumn 37, Issue 3, 2010, Pages 843-916

  Boyd, William ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 78249279642     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (568)

1. See infra Parts II.C and III.
2. This is evidenced by the simple fact that deforestation continues virtually unabated at some thirteen million hectares per year.
3. See FOOD & AGRIC. ORG. OF THE UN, GLOBAL FOREST RESOURCES ASSESSMENT 2005: PROGRESS TOWARDS SUSTAINABLE FOREST MANAGEMENT 19 (2005)
4. [hereinafter 2005 FOREST RESOURCE ASSESSMENT] (reporting gross average annual deforestation of 12.9 million hectares per year during 2000-2005).
5. See UN Framework Convention on Climate Change [UNFCCC],
6. Decision 11/CP.7: Land Use, Land-Use Change, and Forestry, U.N. Doc. FCCC/CP/2001/13/ Add.1, 60 (Jan. 21, 2002) [hereinafter UNFCCC Land Use] (excluding avoided deforestation activities from the Clean Development Mechanism).
7. 2 emissions.
8. 2 Emissions from Forest Loss, 2 NATURE GEOSCIENCE 737, 738 (2009).
9. This represents a decrease from earlier estimates for the 1990s, which estimated that emissions from deforestation accounted for some 20 percent of anthropogenic greenhouse gas emissions.
10. See INTERGOVERNMENTAL PANEL ON CUMATE CHANGE [IPCC], CLIMATE CHANGE 2007: MITIGATION OF CLIMATE CHANGE: WORKING GROUP III CONTRIBUTION TO THE FOURTH ASSESSMENT REPORT 543 (2007)
11. [hereinafter IPCC WG III REPORT]
12. 2 per year, which is approximately 1.6 Gt of carbon per year);
13. Raymond Gullison et al., Tropical Forests and Climate Policy, 316 SCIENCE 985, 985 (2007) (noting that "[t]ropical deforestation released -1.5 billion metric tons of carbon to the atmosphere annually throughout the 1990s accounting for almost 20 percent of anthropogenic greenhouse gas emissions"). Part of the explanation is that the overall contribution of emissions from deforestation has declined as fossil fuel emissions have continued to grow and deforestation has decreased slightly.
14. 2 emissions decreased from 20 percent in 1990-2000 to 12 percent in 2008 owing to increasing fossil fuel emissions and below-average deforestation emissions in 2008."). Le Quéré et al. attribute the below-average LUC emissions for 2008 (declining from 1.5 billion metric tons of carbon per year to 1.2 billion metric tons) to wet La Niña conditions that "probably limited fire and deforestation rates in southeast Asia, particularly in Indonesia" and the continuation of a decline in deforestation in the Brazilian Amazon.
15. Id.
16. See Kyoto Protocol to the UNFCCC art. 3(3), Dec. 10, 1997, U.N. Doc. FCCC/CP/197/L.7/Add.1, 2303 U.N.T.S. 148 [hereinafter Kyoto Protocol] (discussing treatment of forests in accounting for commitments of Annex I Parties);
17. UNFCC Land Use, supra note 3, at 60 (restricting forestry activities under the Clean Development Mechanism during the first Kyoto commitment period to afforestation and reforestation). The term REDD was first used in 2005 in a submission at the Montreal UN Framework Convention on Climate Change Conference of the Parties meeting. At the time, the term referred to "Reducing Emissions from Deforestation in Developing Countries."
18. See UNFCC, SUBMISSION BY THE GOVERNMENTS OF PAPUA NEW GUINEA & COSTA RICA, REDUCING EMISSIONS FROM DEFORESTATION IN DEVELOPING COUNTRIES: APPROACHES TO SIMULATE ACTION (2005)
19. [hereinafter SUBMISSION BY PAPUA NEW GUINEA & COSTA RICA], available at http://unfccc.int/resource/ docs/2005/cop11/eng/misc01.pdf. Although this terminology is still employed, in recent years REDD has also come to stand for Reducing Emissions from Deforestation and Forest Degradation.
20. See UNFCCC, Decision 1/CP.13: Bali Action Plan, U.N. Doc. FCCC/CP/2007/6/Add.l* (Dec. 3, 2007)
21. [hereinafter UNFCCC, Bali Action Plan] (calling for "[p]olicy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries");
22. see also infra Parts III.B and III.C.
23. See infra Part III.C;
24. see also William Boyd, Deforestation and Emerging Greenhouse Gas Compliance Regimes: Toward a Global Environmental Law of Forests, Carbon, and Climate Governance, in DEFORESTATION AND CUMATE CHANGE: REDUCING CARBON EMISSIONS FROM DEFORESTATION AND FOREST DEGRADATION (Valentina Bosetti & Ruben Lubowski eds., 2010) (discussing efforts to integrate REDD into climate policy at multiple levels).
25. See, e.g., Frank Biermann & Philip Pattberg, Global Environmental Governance: Taking Stock, Moving Forward, 33 ANN. REV. OF ENVT. & RESOURCES 277, 288 (2008) (describing earth system governance as an effort to expand global environmental governance to take account of the "the ongoing transformation of the entire earth system, from global warming, large scale changes in biogeochemical cycles, to unprecedented rates of species loss");
26. Eva Lovbrand, Johannes Stripple & Bo Wiman, Earth System Governmentality: Reflections on Science in the Anthropocene, 19 GLOBAL ENVTL. CHANGE 7 (2009), (investigating the "range of practices that have produced the 'coupled human and ecological system' as a thinkable and governable domain");
27. Nicholas A. Robinson, Legal Systems, Decisionmaking, and the Science of Earth's Systems: Procedural Missing Links, 27 ECOLOGY L.Q. 1077 (2001) (discussing implications of earth systems science for law).
28. The multiple and largely complementary initiatives to bring REDD into climate policy-from the design of GHG compliance systems to the reform of forest law and governance in tropical forest countries-exemplify the emergence of "global environmental law," manifest in the construction of cross-jurisdictional regulatory structures and a growing harmonization of national and sub-national forest law regimes aimed at translating forest carbon into compliance carbon. See Tseming Yang & Robert V. Percival, The Emergence of Global Environmental Law, 36 ECOLOGY L.Q. 615 (2009) (discussing concept of "global environmental law").
29. There is a vast literature on history and philosophy of science. This Article draws primarily on work within these fields that investigates how particular concepts, tools, and other knowledge practices work to organize and stabilize particular understandings of the world, often in ways that are co-constitutive with particular forms of governance.
30. See, e.g., IAN HACKING, HISTORICAL ONTOLOGY 4 (2002) (describing his overall approach to a diverse set of intellectual developments-from the emergence of probability to the making of child abuse as a stable category of concern-as one that asks "how ... various concepts, practices, and corresponding institutions, which we can treat as objects of knowledge, at the same time disclose new possibilities for human choice and action");
31. Lorraine Daston, Objectivity and the Escape from Perspective, 22 SOC. STUD. Sa. 597 (1992) (exploring the emergence of different forms of objectivity and their application in various domains);
32. THEODORE M. PORTER, TRUST IN NUMBERS: THE PURSUIT OF OBJECTIVITY IN SCIENCE AND PUBLIC LIFE (1995) (tracing the histories of various techniques of quantification and their role in science and public policy);
33. Naomi Oreskes, Why Believe a Computer? Models, Measures, and Meaning in the Natural World, in THE EARTH AROUND US: MAINTAINING A LIVABLE PLANET (Jill S. Schneiderman ed., 2000) (discussing how modeling practices in the sciences create new objects of knowledge).
34. See, e.g.. Sheila Jasanoff, Ordering Knowledge, Ordering Society, in STATES OF KNOWLEDGE: THE CO-PRODUCTION OF SCIENCE AND SOCIAL ORDER 18-19 (Sheila Jasanoff ed., 2004) (discussing different approaches to knowledge and epistemic authority within the science and technology studies literature);
35. Steven Yearley, Nature and the Environment in Science and Technology Studies, in THE HANDBOOK OF SCIENCE AND TECHNOLOGY STUDIES 921-23 (Hackett et al. eds., 3d ed. 2008) (discussing increasing attention in science and technology studies to questions of environment and, more specifically, to ways of "knowing nature").
36. See, e.g., NIKOLAS ROSE, POWERS OF FREEDOM: REFRAMING POLITICAL THOUGHT 205 (1999) ("When ... numbers are used as 'automatic pilots' in decision making they transform the thing being measured-segregation, hunger, poverty-into its statistical indicator and displace political disputes into technical disputes about methods.");
37. JAMES C. SCOTT, SEEING LIKE A STATE: HOW CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION HAVE FAILED 4-5 (1998) (describing modern "statecraft" as resting on projects intended to simplify and make legible natural and social systems);
38. JAMES FERGUSON, THE ANTI-POLITICS MACHINE 256 (1994) (showing, through a detailed case study in Lesotho, how the international "development apparatus" operates as "the principal means through which the question of poverty is depoliticized in the world today").
39. See, e.g., Laurence Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFFAIRS 66, 78 (1972)
40. [hereinafter Tribe, Policy Science: Analysis or Ideology?] (seeking "to investigate the ways in which a self-consciously objectivist ideal may substantively structure the characteristics and the conclusions of a given mode of thought");
41. BRUCE A. ACKERMAN et al., THE UNCERTAIN SEARCH FOR ENVIRONMENTAL QUALITY 5 (1974) (exploring "the uncertain intellectual foundations of the substance of environmental policy in the United States" through a detailed case study of the deployment of "technocratic intelligence" in the effort to solve the water pollution problem in the Delaware River basin).
42. See Clark A. Miller & Paul N. Edwards, Globalization of Climate Science and Climate Politics, in CHANGING THE ATMOSPHERE: EXPERT KNOWLEDGE AND ENVIRONMENTAL GOVERNANCE 1, 5 (Clark A. Miller & Paul N. Edwards eds., 2001) ("Science ... thus appears less an independent input to global governance than an integral part of it: a human institution deeply engaged in the practice of ordering social and political worlds.").
43. See Peter M. Haas, Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone, in KNOWLEDGE, POWER AND INTERNATIONAL POLICY COORDINATION (Peter M. Haas ed., 1992).
44. The general critique of technocratic forms of decision-making has been a recurring theme in environmental law scholarship for more than thirty years and, of course, draws upon much older philosophical and sociological critiques of instrumental reason. See, e.g., ACKERMAN et al., supra note 12, at 2-3 (critiquing the shortcomings of "technocratic intelligence" in the effort to model and control pollution in the Delaware River basin);
45. Laurence Tribe, Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality, 46 S. CAL. L. REV. 617, 627 (1973)
46. [hereinafter Tribe, Technology Assessment and the Fourth Discontinuity] (focusing on the reductionist tendencies of the policy sciences and the resulting pathologies).
47. See, e.g., Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613 (1995) (discussing ways in which science gets mobilized in toxics regulation);
48. Marcia R. Gelpe & A. Dan Tarlock, The Uses of Scientific Information in Environmental Decisionmaking, 48 S. CAL. L. REV. 371 (1974) (exploring the ways in which science informs environmental decisionmaking).
49. See Jasanoff, supra note 10, at 19-36 (discussing varieties of the co-production of knowledge and social order).
50. For an earlier effort within legal scholarship that bears some resemblance to this approach, see Tribe, Policy Science: Analysis or Ideology?, supra note 12, at 67 (asking how "particular modes of analysis in a number of different fields-particular approaches to formulating questions, organizing information, and developing answers-entail fundamental (if often unwitting) commitments to substantive conclusions shaped in characteristic and often unfortunate ways").
51. See, e.g., CASS R. SUNSTEIN, RISK AND REASON: SAFETY, LAW, AND THE ENVIRONMENT 108-110, 294 (2002) (discussing role of "science" as key input to risk regulation).
52. Clark Miller, Climate Science and Global Political Order, in STATES OF KNOWLEDGE: THE CO-PRODUCTION OF SCIENCE AND SOCIAL ORDER 46,50 (Sheila Jasanoff ed., 2004).
53. See infra Parts II-IV.
54. See, e.g., RICHARD L. REVESZ, FOUNDATIONS OF ENVIRONMENTAL LAW AND POLICY 2-4 (1997) (describing economic foundations of environmental law);
55. Oliver A. Houck, Of Bats, Birds, and B-A-T: The Convergent Evolution of Environmental Law, 63 MISS. L.J. 403, 417-31 (1994) (describing transition to technology-based approaches in major pollution control statutes);
56. Fred P. Bosselman & A. Dan Tarlock, The Influence of Ecological Science on American Law: An Introduction, 69 CHI.-KENT L. REV. 847, 863 (1994) (arguing that "ecology remains the foundation of environmental law because it informed society about adverse consequences of a wide range of human activity");
57. MARK SAGOFF, THE ECONOMY OF THE EARTH: PHILOSOPHY, LAW, AND THE ENVIRONMENT 14-17 (1988) (discussing ethical foundations of health, safety, and environmental regulation).
58. On epistemic communities, see Peter M. Haas, Epistemic Communities, in THE OXFORD HANDBOOK OF INTERNATIONAL ENVIRONMENTAL LAW 791 (Daniel Bodansky, Jutta Brunée & Ellen Hey eds., 2007);
59. Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, in KNOWLEDGE, POWER, AND INTERNATIONAL POLICY COORDINATION 1 (Peter M. Haas ed., 1992). There is a large and diverse social science literature on framing, including significant work in behavioral economics and the policy sciences, that has had considerable influence on legal scholarship.
60. See, e.g., Amos Tversky & Daniel Kahneman, Rational Choice and the Framing of Decisions, 59 J. BUS. S251, S270-75 (1986) (discussing how the framing of particular choices affects decision making in situations of risk);
61. B. Dan Wood & Alesha Doan, The Politics of Problem Definition: Applying and Testing Threshold Models, 47 AM. J. POL. Sa. 640, 640 (2003) (reviewing political science literature directed at understanding "how and why conditions become defined as public problems"). Of more direct relevance to this project are studies that investigate how "issue framing" and the construction of global environmental problems influence governance approaches.
62. See, e.g., Josee van Eijndhoven et al., The Long-Term Development of Global Environmental Risk Management: Conclusions and Implications for the Future, in 2 LEARNING TO MANAGE GLOBAL ENVIRONMENTAL RISKS: A FUNCTIONAL ANALYSIS OF SOCIAL RESPONSES TO CLIMATE CHANGE, OZONE DEPLETION, AND ACID RAIN 192 (Social Learning Group, eds.) (2001) (discussing the importance of issue framing in constructing frameworks for effective governance of global environmental problems);
63. Peter J. Taylor & Frederick H. Büttel, How Do We Know We Have Global Environmental Problems? Science and the Globalization of Environmental Discourse, 23 GEOFORUM 405, 406 (1992) (pointing to the ways in which the science of global environmental change facilitates "certain courses of action ... over others, not just in the use or misuse of science, but in its very formulation-the problems chosen, categories used, relationships investigated, and confirming evidence required") (citations omitted).
64. See, e.g., Shelia Jasanoff, Making Order: Law and Science in Action, in THE HANDBOOK OF SCIENCE AND TECHNOLOGY STUDIES 761-86 (Edward J. Hackett et al. eds., 2008) (reviewing science and technology studies literature on law, with specific attention to law's epistemic authority and knowledge practices);
65. Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 BUFF. L. REV. 973, 985-89 (2005) (discussing relevance of science and technology studies to an understanding of particular legal technologies, in her case modern conflict-of-laws doctrine);
66. Austin Sarat et al., Complexity, Contingency, and Change in Law's Knowledge Practices: An Introduction, in HOW LAW KNOWS 9 (Austin Sarat et al. eds., 2007) ("From the rules of evidence to the technologies of risk management, from the practices of racial profiling to the development of trade knowledge, from the generation of independent knowledge practices to law's dependence on outside expertise, even a brief survey shows that law knows in many different ways, that its knowledge practices are contingent, responsive to context, and that they change over time.");
67. Mariana Valverde et al., Legal Knowledges of Risk, in LAW AND RISK 86-87 (Law Commission of Canada ed., 2005) (discussing how different "risk knowledge practices" are shaped and deployed by participants in "particular legal networks").
68. See, e.g., Wagner, supra note 16.
69. See also the collection of essays in RESCUING SCIENCE FROM POLITICS: REGULATION AND THE DISTORTION OF SCIENTIFIC RESEARCH (Wendy Wagner & Rena Steinzor eds., 2006).
70. See, e.g., CASS R. SUNSTEIN, RISK AND REASON: SAFETY, LAW, AND THE ENVIRONMENT 294 (2002) (characterizing book as "a celebration of the centrality of science and expertise to the law of risk").
71. Shelia Jasanoff s work is a notable exception. See, e.g., SHELIA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS 17-19 (1990) (proposing an alternative approach to understanding the interaction between scientific experts and the regulatory process based on an historical, interdisciplinary case-study method that draws upon insights from science and technology studies).
72. See, e.g., Tribe, Policy Science: Analysis or Ideology?, supra note 12;
73. Tribe, Technology Assessment and the Fourth Discontinuity, supra note 15, at 627 (characterizing the reductionist tendencies of the policy sciences and the resulting pathologies in terms of how particular problems are framed and interrogated);
74. ACKERMAN et al., supra note 12, at 5 (exploring "the uncertain intellectual foundations of the substance of environmental policy in the United States today" through an exhaustive case study of "technocratic intelligence" and its application to pollution control in the Delaware River basin).
75. See, e.g., A. Dan Tarlock, 77ie Nonequilibrium Paradigm in Ecology and the Partial Unraveling of Environmental Law, 27 LOY. L.A. L. REV. 1121 (1994) (providing an overview of how the shift in ecology from the older "balance of nature" concept that characterized systems ecology in the post-World War II period to the "non-equilibrium paradigm" has reshaped environmental law);
76. Jonathan Baert Wiener, Law and the New Ecology: Evolution, Categories, and Consequences, 22 ECOLOGY L.Q. 325, 329 (1995) (discussing the influence of mid-twentieth century ecological ideas such as the balance of nature on environmental law);
77. see also Harry N. Scheiber, From Science to Law to Politics: An Historical View of the Ecosystem Idea and its Effect on Resource Management, 24 ECOLOGY L.Q. 631, 635 (1997) (exploring how the "scientific vision, and the methodology of ecological investigation," provided the foundation for the ecosystem management approach to marine fisheries).
78. See Douglas A. Kysar, Law, Environment, and Vision, 97 Nw. U. L. REV. 675, 677 (2003) (focusing on the "fundamental conceptual flaw in our background assumptions about the natural world and its relation to our economic activity"-what Kysar calls "pre-analytic vision"-that drives mainstream economic thought and, by extension, modern environmental decision making in ways that are unsustainable);
79. see also Douglas A. Kysar, REGULATING FROM NOWHERE: ENVIRONMENTAL LAW AND THE SEARCH FOR OBJECTIVITY (2010) (discussing the narrow and misguided rationalities of strict welfarist approaches, manifest in tools such as quantitative risk assessment and cost-benefit analysis, to environmental policy-making);
80. Douglas A. Kysar, Climate Change, Cultural Transformation, and Comprehensive Rationality, 31 B.C. ENVTL. AFF. L. REV. 555, 586 (2004)
81. [hereinafter Kysar, Climate Change, Cultural Transformation, and Comprehensive Rationality] (discussing how "the very structure of the CBA [Cost-Benefit Analysis] project" tends "to obscure difficult judgments through mischaracterization or misspecification").
82. See James Salzman & J.B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607, 611 (2000);
83. see also Carol M. Rose, From H1O to CO; Lessons of Water Rights for Carbon Trading, 50 ARIZ. L. REV. 91 (2008) (discussing tradeoffs between precision and alienability in the creation of entitlements for environmental trading markets);
84. Carol M. Rose, Environmental Law Grows Up (More or Less), and What Science Can Do to Help, 9 LEWIS & CLARK L. REV. 273, 283 (2005) (concluding that one of the main reasons why cap-and-trade has not been deployed more widely is the "unsolved problem" of "measurement" of quality improvements associated with trading).
85. See Christopher D. Stone, Should Trees Have Standing?-Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450, 456 n.26 (1972) (discussing the difficult ontological choices involved in selecting and framing a particular "natural object," which will in turn have "a strong influence on the shape of the legal system").
86. See Lorraine Daston, Historical Epistemology, in QUESTIONS OF EVIDENCE: PROOF, PRACTICE, AND PERSUASION ACROSS THE DISCIPLINES, 243, 282-83 (James Chandler et al. eds., 1991) (describing "historical epistemology" as the "history of the categories that structure our thought, pattern our arguments and proofs, and certify our standards for explanation");
87. IAN HACKING, HISTORICAL ONTOLOGY 8 (2002) ("The ideas examined by historical epistemology are the ones we use to organize the field of knowledge and inquiry. They are, often despite appearances, historical and 'situated'.");
88. MARY POOVEY, A HISTORY OF THE MODERN FACT: PROBLEMS OF KNOWLEDGE IN THE SaENCES OF WEALTH AND SOCIETY 7 (1998) ("Insofar as historical epistemology assumes that the categories by which knowledge is organized-not only epistemological units like facts, but also institutionalized units like disciplines and professional societies-inform what can be known at any given time, as well as how this knowledge can be used, historical epistemology is a study of determination and effects. Insofar as historical epistemology assumes that the categories by which knowledge is organized change over time, it is less a study of the inexorable march of 'science' toward a fully adequate description of nature than an investigation of those developments that have increasingly made Westerners believe that this march is underway."). Much of the research carried out under the banner of historical epistemology draws inspiration from earlier work by Michel Foucault, among others.
89. See, e.g., MICHEL FOUCAULT, THE ORDER OF THINGS: AN ARCHAEOLOGY OF THE HUMAN SCIENCES xxii (Vintage Books 1994) (1970) ("[W]hat I am attempting to bring to light is the epistemological field, the episteme in which knowledge, envisaged apart from all criteria having reference to its rational value or to its objective forms, grounds its positivity and thereby manifests a history which is not that of its growing perfection, but rather that of its conditions of possibility....").
90. See, e.g., Salzman & Ruhl, supra note 30 (raising important questions about the feasibility of efforts to create common currencies for diverse and heterogeneous phenomena in the context of environmental trading markets);
91. see also infra Part IV.C.
92. The phrase is from RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW (2004).
93. See ROBERT POGUE HARRISON, FORESTS: THE SHADOW OF CIVILIZATION (1992)
94. [hereinafter HARRISON, SHADOW OF CIVILIZATION];
95. SIMON SCHAMA, LANDSCAPE AND MEMORY (1995);
96. MICHAEL WILLIAMS, DEFORESTING THE EARTH: FROM PREHISTORY TO GLOBAL CRISIS (2003)
97. [hereinafter WILLIAMS, DEFORESTING THE EARTH].
98. See, e.g., EDWARD P. THOMPSON, WHIGS AND HUNTERS: THE ORIGINS OF THE BLACK ACT (1975);
99. NANCY LEE PELUSO, RICH FORESTS, POOR PEOPLE: RESOURCE CONTROL AND RESISTANCE IN JAVA 8-17 (1992);
100. HARRISON, SHADOW OF CIVILIZATION, supra note 35, at 69 (documenting the origins of the word forest as "a juridical term referring to land that had been placed off limits by a royal decree" and discussing the emergence of a specific domain of "forest laws" for punishing those who encroached upon these domains).
101. See, e.g., Henry E. Lowood, The Calculating Forester: Quantification, Cameral Science, and the Emergence of Scientific Forestry Management in Germany, in THE QUANTIFYING SPIRIT IN THE 18TH CENTURY 315, 317 (Tore Frängsmyr, J.L. Heilbron & Robin E. Rider eds., 1990) (tracing the history of forest science and quantitative approaches to forest management to the rise of cameral sciences in Germany during second half of the 18th century);
102. SCOTT, supra note 11, at 11-22 (1998) (discussing the history of scientific forestry as a history of state-directed simplification and legibility);
103. ARUN AGRAWAL, ENVIRONMENTALITY: TECHNOLOGIES OF GOVERNMENT AND THE MAKING OF SUBJECTS 32, 58-59 (2005) ("Representation by numbers transformed beliefs among foresters about ideal forests and made possible the reworking of existing vegetation in terms of scientific forestry, sustainable yields, and profit maximization.... Numbers and statistics made it possible to constitute forests.").
104. See, e.g., Raphael Zon, Forests and Human Progress, 10 GEOGRAPHICAL REV. 139, 163 (1920) ("Over a large part of the world the forest is now conquered.").
105. See WILLIAMS, DEFORESTING THE EARTH, supra note 35, at 393-95 (documenting early twentieth century concerns of a global timber famine and the concomitant effort to assess the state of the world's forest resources).
106. Id. at 395.
107. See Lowood, supra note 37, at 341 (discussing the spread of quantitative approaches to forest science from Germany to French and English colonies and to the United States during the nineteenth century);
108. S. RAVI RAJAN, MODERNIZING NATURE: FORESTRY AND IMPERIAL ECODEVELOPMENT 1800-1950, at 55 (2006) ("By the end of the nineteenth century ... [w]here there had once been state-sponsored forest destruction, there were now extensive state-sponsored regimes of scientific resource management.").
109. See MICHAEL WILLIAMS, AMERICANS AND THEIR FORESTS: A HISTORICAL GEOGRAPHY 430-40 (1989) (discussing forest inventory efforts in the United States in the late nineteenth and early twentieth centuries);
110. HENRY CLEPPER, PROFESSIONAL FORESTRY IN THE UNITED STATES 266-67 (1971) (discussing the emergence of a Continuous Forest Inventory (CFI) system in the United States during the 1930s).
111. SAMUEL P. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CONSERVATION MOVEMENT, 1890-1920, at 27-48 (1959) (discussing concerns about the waste and destruction of the nation's timber resources during the late nineteenth century and the push for a program of "scientific management").
112. See, e.g., David Demeritt, Scientific Forest Conservation and the Statistical Picturing of Nature's Limits in the Progressive-Era United States, 19 ENVT & PLAN. D: SOC'Y & SPACE 431, 433 (2001) (discussing efforts to develop "new techniques of quantitative picturing" of forest resources in the United States during the late nineteenth and early twentieth centuries and how this "quantitative picturing provided both the context and the impetus for the governmental institution of scientific conservation").
113. RAPHAEL ZON, U.S. DEP'T OF AGRIC, FOREST SERVICE BULLETIN No. 83, THE FOREST RESOURCES OF THE WORLD (1910).
114. FAO, Forest Resources of the World, 2 UNASYLVA 161 (1948);
115. see also P. Holmgren & R. Persson, Evolution and Prospects of Global Forest Assessments, 53 UNASYLVA 3, 4 (2002).
116. See, e.g., A. Sommer, Attempt at an Assessment of the World's Tropical Forests, 112-13 UNASYLVA 5, 5 (1976) (documenting the change in thinking regarding tropical forests from "a euphoric belief in its unlimited growth ... as an almost infinite resource" to an awareness of the "limited extension of these forest resources and their gradual regression due to increasing human activities," which placed a premium on a global-level assessment).
117. Id. at 5 (describing the available material for conducting a global appraisal of tropical moist forests as "a mass of incomplete data and a number of assumptions");
118. see also Editorial: A New Awareness of Terra Incognita, 28 UNASYLVA 2, 2 (1976) (characterizing the tropical moist forest as "man's least understood ecological formation").
119. See, e.g.. Sommer, supra note 47, at 5 ("It is only recently that, thanks to the new remote sensing techniques we have at last a tool which can give us an objective and accurate appraisal of the world's forest resources.").
120. See RAJAN, supra note 41, at 55 (noting that up until the middle of the nineteenth century "[f]or most colonial administrative officials, forests were a vast and seemingly limitless reservoir of resources for imperial expansion and a hindrance to agricultural development").
121. Id.
122. see also WILLIAMS, DEFORESTING THE EARTH, supra note 35, at 344-79 (documenting European colonial expansion and concomitant destruction of tropical forests after 1750);
123. HARRISON, SHADOW OF CIVILIZATION, supra note 35, at 133-44 (describing nineteenth century European attitudes toward the vast equatorial forests of central Africa through a discussion of the novels of Joseph Conrad).
124. See RAJAN, supra note 41, at 3-6.
125. Louis Lavauden, The Equatorial Forest of Africa: Its Past, Present, and Future, 36 J. ROYAL AFRICAN SOC'Y 3, 6 (1937);
126. see also RAJAN, supra note 41, at 27, 55-107 (discussing concerns of colonial foresters and others with tropical forest destruction during the nineteenth century).
127. Lavauden, supra note 53, at 8.
128. E.J.H. Corner, Suggestions for Botanical Progress, 45 NEW PHYTOLOGIST 185, 185-86 (1946).
129. P.W. RICHARDS, THE TROPICAL RAIN FOREST: AN ECOLOGICAL STUDY 404-07 (1952) (quoted material at 406).
130. See WILLIAMS, DEFORESTING THE EARTH, supra note 35, at 442-43.
131. See, e.g., A. Gomez-Pompa et al., The Tropical Rain Forest: A Nonrenewable Resource, 177 SCIENCE 762, 765 (1972) (concluding that "under present intensive use of land in tropical rain forest regions, the ecosystems are in danger of a mass extinction of most of their species");
132. see also Eneas Salati & Peter B. Vose, Depletion of Tropical Rain Forests, 12 AMBIO 67, 70 (1983) ("The urgency of today's deforestation is that the major remaining primary forests are tropical, and occupy an extremely fragile environment on mostly poor soils subject to rapid degradation.").
133. Gomez-Pompa et al, supra note 58, at 765.
134. Several government-sponsored reports from the late 1970s and early 1980s sought to document the crisis. See, e.g., U.S. DEP'T OF STATE & AGENCY FOR INT'L DEV., PROCEEDINGS OF THE U.S. STRATEGY CONFERENCE ON TROPICAL DEFORESTATION (1978);
135. NORMAN MYERS, NAT'L ACAD, OF SCL, CONVERSION OF TROPICAL MOIST FORESTS (1980);
136. WORLD BANK, WORLD RES. INST. & UN DEV. PROGRAM, TROPICAL FORESTS: A CALL FOR ACTION (1986).
137. For overviews, see Laura Tangley, Saving Tropical Forests, 36 BIOSCIENCE 4 (1986)
138. and Brian Johnson, The Forestry Crisb: What Must be Done, 13 AMBIO 48 (1984).
139. Norman Myers, The Hamburger Connection: How Central America's Forests Become North America's Hamburgers, 10 AMBIO 2 (1981)
140. [hereinafter Myers, The Hamburger Connection].
141. See, e.g., NORMAN MYERS, THE PRIMARY SOURCE: TROPICAL FORESTS AND OUR FUTURE (1984);
142. CATHERINE CAUFIELD, IN THE RAINFOREST: REPORT FROM A STRANGE, BEAUTIFUL, IMPERILED WORLD (1984);
143. Erik Eckholm, U.N. and Aid Groups Seek to Save Dwindling Third World Forests, N.Y. TIMES, Jul. 29, 1985, at A11.
144. See 2005 FOREST RESOURCE ASSESSMENT, supra note 2.
145. The concept was first articulated in 1984 in an editorial by Thomas Lovejoy, then vice president of the World Wildlife Fund, in which he suggested that "debtor nations willing to protect natural resources could be made eligible for discounts or credits against their debts." Thomas E. Lovejoy, Aid Debtor Nations' Ecology, N.Y. TIMES, Oct. 4, 1984, at A31;
146. see also William K. Reilly, Using International Finance to Further Conservation: The First 15 Years of Debt-for-Nature Swaps, in SOVEREIGN DEBT AT THE CROSSROADS: CHALLENGES AND PROPOSALS FOR RESOLVING THE THIRD WORLD DEBT CRISIS 197, 197-200 (Chris Jochnick & Fraser A. Preston eds., 2006) (discussing trends in debt-for-nature and opposition on sovereignty grounds);
147. Amanda Lewis, The Evolving Process of Swapping Debt for Nature, 10 COLO. J. INT'L ENVTL. L. & POL'Y 431, 460-66 (1999) (discussing key criticisms of debt-for-nature swaps).
148. See FAO, TROPICAL FORESTRY ACTION PLAN (1985). TFAP was a joint effort of FAO, the World Bank, the United Nations Development Program (UNDP), and the World Resources Institute (WRI).
149. See Robert Winterbottom, The Tropical Forestry Action Plan: Is it Working?, 15 NAPA BULLETIN 60, 64 (1994).
150. See ROBERT WlNTERBOTTOM, TAKING STOCK: THE TROPICAL FORESTRY ACTION PLAN AFTER FIVE YEARS 3, 23-24 (1990) (discussing increased deforestation during the five years, 1985-90, that TFAP was in operation).
151. See WILLIAMS, DEFORESTING THE EARTH, supra note 35, at 411 ("The destruction of the world's botanical abundance and diversity-the bulk of which probably lies in the tropical moist forests-has been the most important factor in the rising awareness and concern about deforestation. Within about 10 years, between 1986 and 1996, biodiversity moved from being an unknown term to becoming a global byword and the subject of an international convention signed by over 150 nations. Indeed, it is almost synonymous with deforestation.");
152. DAVID TAKACS, THE IDEA OF BIODIVERSITY: PHILOSOPHIES OF PARADISE (1996) (tracing history of the biodiversity concept). According to the best estimates of conservation biologists, more than half of the Earth's terrestrial species live in tropical forests.
153. See MILLENNIUM ECOSYSTEM ASSESSMENT, ECOSYSTEMS AND HUMAN WELL-BEING: VOLUME 1: CURRENT STATE AND TRENDS 601 (Rashid Hassan, Robert Scholes & Neville Ash eds., 2005) ("Tropical Forests cover less than 10 percent of the Earth's land area but harbor between 50 percent and 90 percent of Earth's terrestrial species."). Anecdotes of the impossibly luxuriant nature of these forests have become commonplace. E.O. Wilson, for example, tells the story of a single tree in the Peruvian Amazon that contains 43 ant species belonging to 26 genera, roughly equal to the entire ant fauna of the British Isles.
154. See E.O. Wilson, The Current State of Biological Diversity, in BIODIVERSITY 1, 9 (E.O. Wilson ed., 1988).
155. Convention on Biological Diversity, opened for signature June 1992,311.L.M. 818, 1760 U.N.T.S. 143.
156. See Lisa Naughton-Treves et al., The Role of Protected Areas in Conserving Biodiversity and Sustaining Local Livelihoods, 30 ANN. REV. ENV'T & RESOURCES. 219, 220 (2005) (noting that "[o]ver the past 25 years, the area of land under legal protection has increased exponentially" and that "[d]uring that same period, biodiversity, a term once solely considered by scientists, has moved to center stage of global environmental debates");
157. see also id. at 232-39 (discussing the role of protected areas in conserving tropical forests);
158. Anthony B. Rylands & Katrina Brandon, Brazilian Protected Areas, 19 CONSERVATION BIOLOGY 612, 615-16 (2005) (discussing the explosive growth of protected areas in Brazil since the mid-1980s).
159. See, e.g., NAT'L RESEARCH COUNCIL, VALUING ECOSYSTEM SERVICES: TOWARD BETTER ENVIRONMENTAL DECISION MAKING (2005);
160. James Salzman et al., Protecting Ecosystem Services: Science, Economics, and Law, 20 STAN. ENVTL. L.J. 309 (2001);
161. Barton H. Thompson, Jr., Markets for Nature, 25 WM. & MARY ENVTL. L. & POL'Y REV. 26 (2000);
162. Gretchen C. Daily et al., The Value of Nature and the Nature of Value, 289 SCIENCE 395 (2000);
163. Robert Costanza et al., The Value of the World's Ecosystem Services and Natural Capital, 387 NATURE 253 (1997).
164. See Daniel C. Nepstad, Governing the World's Forests, in CONSERVING BIODIVERSITY: REPORT OF THE ASPEN INSTITUTE 37,40 (B. Babbitt & J. Sarukhán eds., 2004) ("The number of plant and animal species contained in a forested landscape declines precipitously only as forest clearing surpasses 70 or 80 percent. By focusing on species conservation in the world's remaining blocks of forest, we run the risk of developing conservation strategies that are simply not ambitious enough.");
165. MILLENNIUM ECOSYSTEM ASSESSMENT, supra note 67, at 34 (concluding that "[t]he mere act of quantifying the value of ecosystem services cannot by itself change the incentives affecting their use or misuse").
166. Myers, The Hamburger Connection, supra note 61.
167. The ITTO was established in the 1980s as an intergovernmental forum of producing and consuming countries to promote sustainable management of tropical forests.
168. See Int'l Tropical Timber Org. [ITTO], About ITTO, http://www.itto.int/ en/about-itto/ (last visited July 7, 2009);
169. DAVID HUMPHREYS, FOREST POUTICS: THE EVOLUTION OF INTERNATIONAL COOPERATION 55-57 (1996) (discussing shortcomings of the ITTO regime).
170. See Errol Meidinger, The Administrative Law of Global Private-Public Regulation: The Case of Forestry, 17 EUR. J. INT'L L. 47, 48 (2006) (Italy) (characterizing forest certification as "an extensive global system of forestry regulation");
171. Benjamin Cashore et al., Introduction: Forest Certification in Analytical and Historical Perspective, in CONFRONTING SUSTAINABILITY: FOREST CERTIFICATION IN DEVELOPING AND TRANSITIONING COUNTRIES 7, 8 (Benjamin Cashore et al. eds., 2006) (observing that "forest certification has had limited uptake in most developing countries").
172. See Radoslav S. Dimitrov, Hostage to Norms: States, Institutions and Global Forest Politics, 5 GLOBAL ENVTL. POL. 1, 7 (2005) (discussing history of efforts to develop international legal instrument on forests).
173. Id. at 11 (describing the UN Forum on Forests as "collectively and purposefully designed to be an empty eggshell: it has no mandate for decision-making, leaves everything for countries to do, lets them choose what they want to do, does not provide them with financial assistance to do it, and has no right to hold them accountable for the results of their inaction").
174. See Katharina Kunzmann, The Non-Legally Binding Instrument on Sustainable Management of All Types of Forests-Towards a Legal Regime for Sustainable Forest Management?, 9 GERMAN L.J. 981 (2008) (discussing the 2007 principles, which passed the UN General Assembly in December 2007).
175. See, e.g., WORLD COMMISSION ON FORESTS AND SUSTAINABLE DEVELOPMENT, OUR FOREST OUR FUTURE: REPORT OF THE WORLD COMMISSION ON FORESTS AND SUSTAINABLE DEVELOPMENT 2 (1999) (concluding that the world's forests are in severe crisis, threatening the long-term stability of the biosphere).
176. See Nepstad, supra note 71, at 45 (summarizing the reasons for failure);
177. Deborah S. Davenport, An Alternative Explanation for the Failure of the UNCED Forest Negotiations, 5 GLOBAL ENVTL. POL. 105, 106 (2005) (attributing the failure to establish a global forest convention at the 1992 UN Conference on Environment and Development (UNCED) to a lack of U.S. leadership);
178. Ronnie D. Lipschutz, Why is There No International Forestry Law?: An Examination of International Forestry Regulation, Both Public and Private, 19 UCLA J. ENVTL. L. & POL'Y 153, 153 (2001) (arguing that the "political economy and history of national forestry programs," which focused on conserving and managing forests for timber extraction rather than for the maintenance of environmental services, has obstructed progress toward a global forest convention in ways that are more apparent than in the case of other "global commons" issues);
179. HUMPHREYS, supra note 73, at 171 (attributing lack of global forest convention to developing country concerns about sovereignty).
180. See 2005 FOREST RESOURCE ASSESSMENT, supra note 2, at 13, 19.
181. See JOHAN ELIASCH, CLIMATE CHANGE: FINANCING GLOBAL FORESTS: THE ELIASCH REVIEW 23 (2008).
182. See C. Azevedo-Ramos, Sustainable Development and Challenging Deforestation in the Brazilian Amazon: The Good, The Bad, and The Ugly, 59 UNASYLVA 12, 13 (2008).
183. See Jayant Sathaye et al., GHG Mitigation Potential, Costs and Benefits in Global Forests: A Dynamic Partial Equilibrium Approach 28 fig.4 (Lawrence Berkeley Nat'l Lab., Working Paper No. 58291, 2005);
184. Manuel Estrada Porrúa et al., Reducing Greenhouse Gas Emissions from Deforestation in Developing Countries: Revisiting the Assumptions 6 (Tyndall Qr. for Climate Research, Working Paper 115, 2007).
185. 2 (32 ± 8 petagrams of carbon (PgC)) to the atmosphere).
186. See 2005 FOREST RESOURCE ASSESSMENT, supra note 2, at xii;
187. IPCC WG III REPORT, supra note 4, at 541.
188. See PRENTICE et al., CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS: WORKING GROUP I CONTRIBUTION TO THE THIRD ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 188, 192 (J.T. Houghton et al. eds., 2001)
189. [hereinafter 2001 IPCC REPORT] (reporting that the atmosphere contains approximately 730 PgC and that forests and their soils contain an estimated 1146-1240 PgC, or about 1.7 times more carbon than the atmosphere).
190. 2-eq (about 13 GtC).
191. See IPCC WG III REPORT, supra note 4, at 97 n.1.
192. See Simon L. Lewis et al., Increasing Carbon Storage in Intact African Tropical Forests, 457 NATURE 1003, 1004-05 (2009) (reporting increases in tropical forest carbon stocks in central Africa and extrapolating from this to conclude that tropical forests worldwide have been sequestering some 1.3 billion tons of carbon per year, which is almost 20 percent of global carbon emissions).
193. But see Oliver L. Phillips et al., Drought Sensitivity of the Amazon Rainforest, 323 SCIENCE 1344, 1344 (2009) (concluding that the intense drought conditions in the Amazon during 2005 resulted in a significant increase in carbon emissions from the forest).
194. See Soares-Filo et al., supra note 84, at 520.
195. See ELIASCH, supra note 81, at 28-32.
196. See id. at 20, 49, 53.
197. See IPCC WG III REPORT, supra note 4, at 105 fig. 1.3b (showing agricultural emissions at 13.5 percent, forestry emissions at 17.4 percent, energy supply emissions at 25.9 percent, and transportation emissions at 13.1 percent of global GHG emissions in 2004).
198. 2/yr.
199. 2 emissions in the United States for 2005 were 5.8 Gt/year;
200. 2/yr.
201. See INT'L ENERGY ASS'N, WORLD ENERGY OUTLOOK 2007: CHINA AND INDIA INSIGHTS 199 (2007).
202. See ENERGY INFO. ADMIN., INTERNATIONAL ENERGY OUTLOOK 76 (2006) (estimating energy-related carbon dioxide emissions from participating Kyoto countries at 422 million metric tons below the reference case in 2010 and 675 million metric tons below the reference case in 2030).
203. See WRI, NAVIGATING THE NUMBERS: GREENHOUSE GAS DATA AND INTERNATIONAL CLIMATE POLICY 111 tbl.2 (2005).
204. UNFCCC art. 2, June 12,1992,1771 U.N.T.S. 107, U.N. Doc. A/AC.237/18.
205. The UNFCCC provides that policies and measures to address climate change should be "comprehensive" and "cover all relevant sources, sinks, and reservoirs of greenhouse gases."
206. Id. art. 3(3). The Convention further directs the Parties to "[p]romote sustainable development, and promote and cooperate in the conservation and enhancement... of sinks and reservoirs of all greenhouse gases .. . including biomass, forests,... as well as other terrestrial... ecosystems."
207. Id. art. 4(d)(1). Building on this, the Kyoto Protocol contains several provisions intended to accommodate forests and land use-also known as Land Use, Land Use Change, and Forestry, or LULUCF. Article 3(3), for example, provides that "removals by sinks resulting from humaninduced land-use change and forestry activities, limited to afforestation, reforestation, and deforestation since 1990, measured as verifiable changes in carbon stocks in each commitment period, shall be used to meet the commitments" for the Annex I Parties. Kyoto Protocol, supra note 5, art. 3(3). In addition, two of the three "flexibility mechanisms" created by the Kyoto Protocol (Joint Implementation under Article 6 and the Clean Development Mechanism under Article 12) allow for crediting of certain forest-related activities.
208. Id. arts. 6, 12.
209. UNFCCC Land Use, supra note 3.
210. Id.
211. Id.
212. see also Eric C. Bettelheim & Gillonne d'Origny, Carbon Sinks and Emissions Trading under the Kyoto Protocol: A Legal Analysis, in CAPTURING CARBON AND CONSERVING BIODIVERSITY: THE MARKET APPROACH 283, 285 (Ian R. Swingland ed., 2004) (emphasizing inconsistency between rules restricting forest activities in developing countries and those that allow Annex I countries to account for all forest activities in their own national accounting).
213. See Cathleen Fogel, The Local, the Global, and the Kyoto Protocol, in EARTHLY POLITICS: LOCAL AND GLOBAL IN ENVIRONMENTAL POLITICS 103, 105 (Sheila Jasanoff & Marybeth Long Martello eds., 2004) (discussing NGO criticisms of Kyoto forest provisions as "loopholes" that would undermine the environmental integrity of the targets).
214. Leakage refers to the concern that the emissions reductions associated with a particular project or activity will simply displace the emissions-generating activity to an area outside the project boundary and, thus, any emissions reduced by the project will "leak" out by virtue of the new activity.
215. See Ian Noble et al., Implications of Different Definitions and Generic Issues, in LAND USE, LAND-USE CHANGE AND FORESTRY: A SPECIAL REPORT OF THE IPCC 83-85 (Robert T. Watson et al. eds., 2000) (discussing leakage in the context of land use, land use change and forestry activities);
216. Sandra Brown et al., Project-Based Activities, in LAND USE, LAND-USE CHANGE AND FORESTRY: A SPEOAL REPORT OF THE IPCC 308-14 (Robert T. Watson et al. eds., 2000) (discussing challenges of assessing and managing leakage associated with forest carbon project activities).
217. Non-permanence or reversibility refers to the concern that the carbon stored and credited as part of a particular activity will be released in the future.
218. See Noble et al., supra note 102, at 85-89 (discussing issues of reversibility associated with land use, land use change, and forestry activities);
219. Brown et al., supra note 102, at 315-16 (discussing reversal risks associated with forest carbon project activities).
220. Additionality typically refers to the requirement that any emissions reductions or removals achieved by the project or activity are "additional" to those that would have occurred under business-as-usual. Assessing additionality thus requires careful establishment of reliable baselines in order to evaluate project performance against the business-as-usual scenario.
221. See IPCC WG III REPORT, supra note 4, at 809 (defining additionality);
222. Brown et al., supra note 102, at 304-08 (discussing issues associated with establishing baselines and assessing additionality for forest carbon project activities).
223. See Noble et al., supra note 102, at 83-85 (discussing carbon leakage issues associated with forestry projects);
224. Sandra Brown et al., Issues and Challenges for Forest-Based Carbon-Offset Projects: A Case Study of the Noel Kempff Climate Action Project in Bolivia, 5 MITIGATION & ADAPTATION STRATEGIES FOR GLOBAL CHANGE 99, 106-10 (2000) (discussing challenges of mitigating leakage associated with one of the first avoided deforestation projects).
225. See Noble et al., supra note 102, at 85-86 (discussing permanence challenges associated with avoided deforestation activities);
226. Johannes Ebeling & Maï Yasué, Generating Carbon Finance through Avoided Deforestation and Its Potential to Create Climatic, Conservation and Human Development Benefits, 363 PHIL. TRANSACTIONS ROYAL SOC'Y B 1917, 1919 (2008) ("Permanence of emission reductions was a major controversial issue during earlier climate negotiations regarding the inclusion of forests as carbon sinks in the Kyoto Protocol. The concern was that if a newly created sink is burnt or logged, the sequestered carbon will be released back into the atmosphere and there will be no net emission reduction.").
227. See P.M. Fearnside, Saving Tropical Forests as a Global Warming Countermeasure: An Issue that Divides the Environmental Movement, 39 ECOLOGICAL ECON. 167, 178-79 (2001) ("One of the criticisms frequently raised against including avoided deforestation in the CDM is that it would be impossible to establish reliable baselines. The baseline is the scenario without the mitigation project, which is compared with the observed stocks of carbon after the project to calculate the carbon gain.").
228. See, e.g., Robert Bonnie et al., Counting the Costs of Deforestation, 288 SCIENCE; 1763, 1764 (2000) ("Some countries and even environmental organizations believe that these [accounting] complexities cannot be overcome and that forest conservation, therefore, should not be an eligible activity under the CDM.");
229. Bernhard Schlamadinger et al., Should We Include Avoidance of Deforestation in the International Response to Climate Change?, in TROPICAL DEFORESTATION AND CUMATE CHANGE 53, 54 (Paulo Moutinho & Stephan Schwartzman eds., 2005) (recounting technical arguments against allowing avoided deforestation activities in the Kyoto Protocol).
230. Recent discussions within the UNFCCC process have focused on a series of forest-related activities, grouped together as "REDD+," which include REDD activities as well as conservation, sustainable management, and enhancement of forest carbon stocks. See, e.g., UNFCCC, Draft Decision -/CP.15: Methodological Guidance for Activities Relating to Reducing Emissions from Deforestation and Forest Degradation and the Role of Conservation, Sustainable Management of Forests and Enhancement of Forest Carbon Stocks in Developing Countries (2009) [hereinafter UNFCCC, Methodological Guidance for Activities Relating to REDD].
231. The original group of countries that supported the proposal by Papua New Guinea and Costa Rica included: Bolivia, Central African Republic, Chile, Congo, Democratic Republic of Congo, Dominican Republic, and Nicaragua. See Coalition for Rainforest Nations [CfRN], http://www.rainforestcoalition.org/eng/ (last visited June 23, 2009).
232. In subsequent discussions, REDD has come to mean Reduced Emissions from Deforestation and Forest Degradation. See UNFCCC, Bali Action Plan, supra note 5 (calling for "[p]olicy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries).
233. UNFCCC, Submission by the Governments of Papua New Guinea & Costa Rica: Reducing Emissions from Deforestation in Developing Countries: Approaches to Simulate Action, U.N. Doc. FCCC/CP/2005/MISC.1 (Nov. 11, 2005)
234. [hereinafter Submission by Papua New Guinea & Costa Rica], available at http://unfccc.int/resource/docs/2005/cop11/eng/misc01.pdf.
235. Id. at 1.
236. Id.
237. See Robin R. Churchill & Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AM. J. INT'L L. 623, 623 (2000) (discussing key role of subsidiary bodies in elaborating international environmental law);
238. Clark Miller, Hybrid Management: Boundary Organizations, Science Policy, and Environmental Governance in the Climate Regime, 26 SCI., TECH. & HUM. VALUES 478, 479-80 (2001) (analyzing the SBSTA as a "boundary organization" that works to "interpret and manage the production of scientific knowledge and its incorporation into policy making").
239. See UNFCCC, Reducing Emissions from Deforestation in Developing Countries: Approaches to Stimulate Action: Draft Conclusions Proposed by the President, 1 2, U.N. Doc. FCCC/CP/2005/L.2 (2005).
240. See UNFCCC, Decision 1/CP.13: Bali Action Plan, U.N. Doc. FCCC/CP/2007/6/Add.1* (2007). The Bali meeting also took a separate, more detailed REDD decision, encouraging further work on policy approaches and methodological issues as well as the initiation of pilot projects in key countries.
241. See UNFCCC, Decision 2/CP.13: Reducing Emissions from Deforestation in Developing Countries: Approaches to Stimulate Action, U.N. Doc. FCCC/CP/ 2007/6/Add.1* (2007).
242. See UNFCCC, Methodological Guidance for Activities Relating to REDD, supra note 109.
243. This is reflected most prominently in the draft negotiating text for a new climate treaty put forward by the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, which contains extensive provisions dealing with REDD+. See, e.g., UNFCCC, Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, Negotiating Text, ¶¶ 106-28, U.N. Doc. FCCOAWGLCA/2009/8 (May 19, 2009). Of course, the results (or lack thereof) of the COP-15 meeting in Copenhagen raise larger questions about the prospects for post-2012 international climate policy.
244. See UNFCCC, Draft Decision -/CP.15: Proposal by the President: Copenhagen Accord, U.N. Doc. FCCC/CP/2009/L.7 (Dec. 18, 2009) (taking note of the Copenhagen Accord), available at http://unfccc.int/files/meetings/cop-15/ application/pdf/cop15-cph-auv.pdf.
245. See Beth Daley, 3.5b Pledge Buoys Climate Talks; Poorer Nations Hail Tentative Deal to Protect Forests, BOSTON GLOBE, Dec. 17, 2009, available at http://www.boston.com/lifestyle/ green/articles/2009/12/17/35b-pledge-buoys- climate-talks/?page=2.
246. UNFCCC, Draft Decision -/CP.15: Methodological Guidance for Activities Relating to Reducing Emissions from Deforestation and Forest Degradation and the Role of Conservation, Sustainable Management of Forests and Enhancement of Forest Carbon Stocks in Developing Countries (2009).
247. See European Commission, Addressing the Challenges of Deforestation and Forest Degradation to Tackle Climate Change and Biodiversity Loss, at 10, COM (2008) 645/3 (proposing to dedicate up to five percent of the auction revenues from the EU Emissions Trading Scheme as a source of financing for a Global Forest Carbon Mechanism);
248. Position of the European Parliament Adopted at First Reading on 17 December 2008 with a View to the Adoption of Directive 2009/../EC of the European Parliament and of the Council Amending Directive 2003/87/EC so as to Improve and Extend the Greenhouse Gas Emission Allowance Trading System of the Community, ¶ 36, EP-PE-TC1-COD(2008)0013 (Dec. 17, 2008) (committing the European Union to work toward establishing an internationally recognized system for reducing deforestation within the context of a post-2012 climate agreement).
249. See, e.g., U.K. DEPT OF ENERGY AND CLIMATE CHANGE, THE ROAD TO COPENHAGEN: THE UK GOVERNMENT'S CASE FOR AN AMBITIOUS INTERNATIONAL AGREEMENT ON CLIMATE CHANGE 53-55 (2009) (emphasizing importance of including forests in international climate agreement with goal of halting global forest cover loss by 2030);
250. Sigmar Gabriel, Fed. Env't Minister, F.R.G., Statement at the International Climate Change Conference in Poznan: Germany's Contribution to Supporting Developing Countries to Reduce Emissions from Deforestation (REDD) (Dec. 11, 2008) (expressing German government's support for REDD), available at http://www.bmu.de/english/speeches/doc/42790.php;
251. Press Release, Common Position of France and Brazil on Climate Change (Nov. 14, 2009) (committing to "ensure the inclusion of REDD in the Copenhagen agreed outcome"), available at https://pastel.diplomatie.gouv. fr/editorial/actual/ael2/bulletin.gb.asp?liste=20091117.gb.html#Chapitre3.
252. See, e.g., Climate Security Act, S. 3036, 110th Cong. tit. III, pt. H (2008);
253. American Clean Energy and Security Act of 2009, H.R. 2454 [hereinafter Waxman-Markey Bill], 111th Cong. § 743(e) & tit. III, pt. E (2009);
254. Clean Energy Jobs and American Power Act, S. 1733, 111th Cong. §§ 744(e), 753 (2009);
255. American Power Act, S. -, 111th Cong. § 756(c) (as circulated in draft form May 12, 2010).
256. See, e.g., U.S. CLIMATE ACTION PARTNERSHIP [USCAP], A BLUEPRINT FOR LEGISLATIVE ACTION: CONSENSUS RECOMMENDATIONS FOR U.S. CLIMATE PROTECTION LEGISLATION 5, 10-11 (2009).
257. See CAL. AIR RES. BD., CLIMATE CHANGE PROPOSED SCOPING PLAN 38, 115 (Oct. 2008) (approved Dec. 2008) (identifying the possibility of accepting offsets in a California GHG compliance system from "those jurisdictions that demonstrate performance ... in reducing emissions or enhancing sequestration through eligible forest carbon activities in accordance with appropriate national or sub-national accounting frameworks"). In November 2008, the Governors of California, Illinois, and Wisconsin signed a series of Memoranda of Understanding (MOUs) with four Brazilian states and two Indonesian provinces calling for cooperation in the development of "rules to ensure that forest-sector emissions reductions and sequestrations, from activities undertaken at the sub-national level, will be real, measurable, verifiable and permanent, and capable of being recognized in compliance mechanisms." See Memorandum of Understanding Related to Reducing Greenhouse Gas Emissions from Deforestation art. 2(b) (Nov. 18, 2008). The MOU states and provinces, known formally as the Governors' Climate and Forests Task Force, have expanded their membership to include several additional states and provinces from Brazil, Indonesia, Mexico, and Nigeria and are actively involved in developing recommendations for the relevant regulatory authorities responsible for developing rules that would allow REDD credits into GHG compliance systems.
258. See GOVERNORS' CLIMATE & FORESTS TASK FORCE, JOINT ACTION PLAN 2 (2009-10), available at http://ww.gcftaskforce.org/drcuments/GCTF-1000-2009-031. pdf.
259. See IUCN, LEGAL FRAMEWORKS FOR REDD, IUCN ENVIRONMENTAL POLICY AND LAW PAPER NO. 77 (John Costenbader ed., 2009) (providing overview of REDD legal and policy developments in several tropical forest countries, including Brazil, Cameroon, Guyana, and Papua New Guinea);
260. DAVID TAKACS, FOREST CARBON: LAW AND PROPERTY RIGHTS (2009) (providing overview of legal and policy issues regarding forest carbon in Brazil, Costa Rica, Indonesia, and Madagascar).
261. See Tata Cara Pengurangan Emisi Dari Deforestasi Dan Degradasi Hutan (REDD) [Implementation Procedures for Reducing Emissions from Deforestation and Forest Degradation], No. P.30/Menhut-II/2009 (2009) (Indon.);
262. Tata Cara Perizinan Usaha Pemenfaatan Penyerapan Dan/Atau Penyimpanan Karbon Pada Hutan Produksi Dan Hutan Lindung [Procedures for Licensing of Commercial Utilisation of Carbon Sequestration and/or Storage in Production and Protected Forests], No. P.36/Menhut-H/2009 (2009) (Indon.).
263. See Lei No. 11.284, de 2 de março de 2006, D.O.U. de 3.3.2006, art. 16, ¶1 (Braz.).
264. See Decreto No. 6.527, de 1° de agosto de 2008, D.O.U. de 4.8.2008 (Braz.). For background on the Amazon Fund, see http://www.amazonfund.gov.br/.
265. See Lula Signs Land Law Aimed at Reforming Amazon, BOSTON GLOBE, June 26, 2009, available at http://www.reuters.com/article/idUSTRE55P62M20090626.
266. The Brazilian state of Amazonas, for example, enacted the country's first state climate change law, which, among other objectives, encourages "the creation of market instruments to enable the execution of projects for reducing deforestation emissions." Lei sobre Mudanças Climáticas, Conservação Ambiental e Desenvolvimento Sustentável do Amazonas, PEMC-AM [Law of Climate Change, Environmental Conservation, and Sustainable Development], State Law No. 3135 (June 5, 2007) (State of Amazonas, Brazil) arts. 2(11) & 3(1).
267. See World Bank, Forest Carbon Partnership Facility, About the FCPF, http://www.forestcarbonpartnership.org/fcp/node/12 (last visited July 22, 2009).
268. See supra Part III.A.
269. This basic point was emphasized in the original 2005 submission by Papua New Guinea and Costa Rica: "It must be highlighted that our emphasis is carbon emissions-not 'sinks'." See Submission by Papua New Guinea & Costa Rica, supra note 112, at 8;
270. see also infra Part IV.C.
271. See supra Part III.B.
272. See infra Parts IV.B and C.
273. See UNFCCC, supra note 96, art. 3(1) ("The Parties should protect the climate system ... on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities."); see also Christopher D. Stone, Common But Differentiated Responsibilities in International Law, 98 AM. J. INT'L L. 276 (2004).
274. See supra Part II.
275. See G.M. Woodwell et al., Deforestation in the Tropics: New Measurements in the Amazon Basin Using Landsat and NOAA Advanced Very High Resolution Radiometer Imagery, 92 J. GEOPHYSICAL RES. 2157, 2157-58 (1987) (providing early images of deforestation in the Brazilian Amazon using data from Landsat and the NOAA Advanced Very High Resolution Radiometer Imagery satellites).
276. See, e.g., Gregory P. Asner, Tropical Forest Carbon Assessment: Integrating Satellite and Airborne Mapping Approaches, 4 ENVTL. RES. LETTERS 1, 2-6 (2009) (discussing opportunities to combine satellite-based remote sensing with new airborne techniques for measuring carbon densities to develop high-resolution forest carbon maps as a baseline for monitoring changes in forest carbon stocks going forward). The Woods Hole Research Center has also initiated a multi-year project to develop a pan-tropical map of forest cover and associated carbon stocks in above-ground biomass with the express goal of providing reference maps for future REDD policy mechanisms. See Woods Hole Research Center, Pan-Tropical Mapping of Forest Cover and Above-Ground Carbon Stock, http://whrc.org/pantropical/index.htm. Drawing on the work of Asner and others, Google is developing a new platform that will enable "online, global-scale observation and measurement of changes in the earth's forests" by running high-performance processing of raw satellite data through the "Google cloud." According to Google, the new technology will provide a low-cost, publicly available, and transparent tool for forest monitoring, reporting and verification ("MRV") to support emerging REDD policy mechanisms.
277. See Google, Seeing the Forest Through the Cloud (Dec. 10, 2009), http://googleblog.blogspot.com/2009/12/seeing-forest-through-cloud.html.
278. As used here, the term equivalence is intended to capture the various conventions and techniques that allow seemingly disparate phenomena to be held together, creating "things of another order." See ALAIN DESROSIÈRES, THE POLITICS OF LARGE NUMBERS: A HISTORY OF STATISTICAL REASONING 9 (Camille Naish trans., 1998).
279. See, e.g., PHILLIPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 546-47 (2d ed. 2003) ("Attempts by developed countries to 'internationalize' forest issues have so far been unsuccessful in legal terms, and the tropical forest resources of developing countries are carefully guarded as part of the national patrimony of these countries .... [T]ropical and other forests are not the 'common heritage of mankind' under international law, and were not identified as a 'common concern' to mankind in the forest principles."). Although the current international discussions over REDD have not proposed a specific change in the treatment of tropical forests under international law, it is clear that bringing tropical forests into an international climate regime will increase the pressure for a de facto internationalization of tropical forests given their role in the global carbon cycle and their importance to climate protection efforts.
280. See Da vid M. Hart & David G. Victor, Scientific Elites and the Making of US Policy for Climate Change Research, 1957-74, 23 SOC. STUD. OF Sa. 643, 647 (1993) (describing the evolution of a coherent climate change research program in the post World War II period as the product of two distinct discourses: one focused on the carbon cycle and the other on atmospheric modeling).
281. Id. at 654.
282. See R.A. Houghton, Balancing the Global Carbon Budget, 35 ANN. REV. EARTH & PLANETARY Sa. 313, 314-15 (2007).
283. See, e.g., Bert Bolin, Changes of Land Biota and Their Importance for the Carbon Cycle, 196 SCIENCE 613, 613 (1977) ("Deforestation and the cultivation of land for agricultural purposes are examples of major changes in the land biota that may well have had significant implications for the global carbon cycle.");
284. Eberhard F. Brunig, The Tropical Rain Forest-A Wasted Asset or an Essential Biospheric Resource?, 6 AMBIO 187, 190 (1977) ("If forest is converted to vegetation cover types with lower biomass accumulation, large amounts of carbon dioxide will be released into the atmosphere and part of it will stay there.");
285. 2 emissions to the atmosphere).
286. 2 content of the atmosphere appreciably").
287. 2 Balance: The Controversy, 34 BIOSCIENCE 492 (1984) (discussing controversy between geochemists and ecologists regarding the role of terrestrial biota in the global carbon cycle and the contributions of deforestation to global carbon emissions).
288. George M. Woodwell, Forests in a Warming World: A Time for New Policies, 19 CLIMATIC CHANGE 245, 245 (1991).
289. See, e.g., Sheila Jasanoff, Heaven and Earth: The Politics of Environmental Images, in EARTHLY POLITICS 31, 44-45 (Sheila Jasanoff & Marybeth Long Martello eds., 2004) [hereinafter Jasanoff, Heaven and Earth] (discussing post-World War II developments in earth systems science and the resulting effort to develop a new kind of legibility capable of generating "facts on a planetary scale");
290. Peter J. Taylor, Technocratic Optimism, H.T. Odum, and the Partial Transformation of the Ecological Metaphor after World War II, 21 J. HIST. BIOLOGY 213, 214 (1988) (discussing early work on biogeochemical cycles in development of systems approach within ecology and the earth sciences).
291. See Valentin Bellassen et al., Reducing Emissions from Deforestation and Degradation: What Contribution from Carbon Markets?, 6 IOP CONF. SERIES 252020, 252026 (2009).
292. See Richard A. Houghton, The Future Role of Tropical Forests in Affecting the Carbon Dioxide Concentration of the Atmosphere, 19 AMBIO 204, 204 (1990) (noting that carbon emissions from deforestation in the 1980s were on the order of 35 percent to 50 percent of global emissions from combustion of fossil fuels).
293. Id. at 209.
294. 2 in the atmosphere, if the stabilization is to last into the indefinite future, must include three measures: a reduction of fossil-fuel use, a cessation of deforestation, and an initiation of reforestation.").
295. See IPCC, SOENTUTC ASSESSMENT OF CLIMATE CHANGE: REPORT OF WORKING GROUP I (1990);
296. IPCC, IMPACTS ASSESSMENT OF CLIMATE CHANGE: REPORT OF WORKING GROUP H (1990);
297. IPCC, THE IPCC RESPONSE STRATEGIES: REPORT OF WORKING GROUP III (1990).
298. See R.T. Watson et al., Greenhouse Gases and Aerosols, in CLIMATE CHANGE: THE IPCC SCIENCE ASSESSMENT: WORKING GROUP I CONTRIBUTION TO THE FIRST ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 1, 13 (J.T. Houghton, GJ. Jenkins & JJ. Ephraums eds., 1990)
299. [hereinafter Greenhouse Gases and Aerosols, 1990 IPCC REPORT] (estimating emissions from deforestation and land use during the 1980s at 1.6 ± 1.0 GtC/yr and emissions from fossil fuels at 5.4 ± 0.5 GtC/yr, with the result that deforestation and land use accounted for some 22 percent of global anthropogenic carbon emissions);
300. see also IPCC, THE IPCC RESPONSE STRATEGIES: REPORT OF WORKING GROUP III 94 (1990) ("Deforestation may be responsible for one-quarter to one-fifth of global anthropogenic carbon dioxide emissions ...."); id. at 103-04 (identifying a World Forest Conservation Protocol to a climate convention as a possible response option).
301. K.L. DENMAN et al., CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS: WORKING GROUP I CONTRIBUTION TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL OF CLIMATE CHANGE 518 tbl.7.2 (2007)
302. [hereinafter IPCC WG I REPORT].
303. This estimate was the same as that provided in the first IPCC report in 1990. Greenhouse Gases and Aerosols, 1990 IPCC REPORT, supra note 158, at 13. The range of uncertainty reported in the 2007 report was also comparable to that from the first report. Id. at 13 (reporting its range of uncertainty as ± 1.1, while the 2007 IPCC WG I REPORT, supra, stated its range of uncertainty as ± 1.0).
304. 2 emissions for 2008 are estimated at 9.9 billion metric tons of carbon. See Le Quéré et al., supra note 4, at 832.
305. 2) from anthropogenic activities translate into concentrations in the atmosphere.");
306. Navin Ramankutty et al., Challenges to Estimating Carbon Emissions from Tropical Deforestation, 13 GLOBAL CHANGE BIOLOGY 51, 51 (2007) ("Emissions from land-use and land-cover change are perhaps the most uncertain component of the global carbon cycle, with enormous implications for balancing the present-day carbon budget and predicting the future evolution of climate change.");
307. IPCC WG I REPORT, supra note 159, at 518 ("The land use carbon source has the largest uncertainties in the global carbon budget.").
308. 2 and the Carbon Cycle, In CLIMATE CHANGE 1994: RADIATIVE FORONG OF CLIMATE CHANGE 51 (R.A. Houghton et al. eds., 1995);
309. R.A. Houghton, Aboveground Forest Biomass and the Global Carbon Balance, 11 GLOBAL CHANGE BIOLOGY 945, 945 (2005);
310. see also R.A. Houghton et al., The Spatial Distribution of Forest Biomass in the Brazilian Amazon: A Comparison of Estimates, 7 GLOBAL CHANGE BIOLOGY 731, 731 (2001) ("The lack of agreement among estimates confirms the need for reliable determination of aboveground biomass over large areas.");
311. Ramankutty et al., supra note 161, at 55 ("[U]ncertainty in biomass estimates has been a key source of disagreement regarding estimates of carbon emissions from tropical deforestation.").
312. See Ramankutty et al., supra note 161, at 55, 57;
313. see also IPCC WG III REPORT, supra note 4, at 544 ("There is still limited insight regarding impacts [of climate change] on soils").
314. Ramankutty et al., supra note 161, at 51, 53-54;
315. R.A. Houghton, Aboveground Forest Biomass and the Global Carbon Balance, 11 GLOBAL CHANGE BIOLOGY 945, 945 (2005).
316. Ramankutty et al., supra note 161, at 55.
317. Id. at 56.
318. Id. at 58.
319. See IPCC WG I REPORT, supra note 159, at 604-05;
320. IPCC WG III REPORT, supra note 4, at 564;
321. Christopher B. Field et al., Feedbacks of Terrestrial Ecosystems to Climate Change, 32 ANN. REV. ENV'T & RES. 1 (2007);
322. Christian Körner, Through Enhanced Tree Dynamics Carbon Dioxide Enrichment May Cause Tropical Forests to Lose Carbon, 359 PHIL. TRANSACTIONS ROYAL SOC'Y LONDON B 493 (2004).
323. See e.g., Houghton, Balancing the Global Carbon Budget, supra note 161, at 316 fig.1 (illustrating role of vegetation and land use change in global carbon cycle).
324. IPCC WGI REPORT, supra note 159, at 527.
325. See, e.g., Ruth DeFries, Terrestrial Vegetation in the Coupled Human-Earth System: Contributions of Remote Sensing, 33 ANN. REV. ENV'T & RES. 369, 383 (2008)
326. [hereinafter DeFries, Terrestrial Vegetation in the Coupled Human-Earth System] (discussing the role of remote sensing in transforming understandings of terrestrial vegetation in the earth system);
327. Eli Kintisch, Improved Monitoring of Rainforests Helps Pierce Haze of Deforestation, 316 SCIENCE 536 (2007);
328. Carlos M. Souza, Jr., Mapping Land Use of Tropical Regions from Space, 103 PROC. NAT'L ACAD. SCI. 14261 (2006);
329. Ruth DeFries et al., Carbon Emissions from Tropical Deforestation and Regrowth Based on Satellite Observations for the 1980s and 1990s, 99 PROC. NAT'L ACAD. SCI. 14256 (2002).
330. See Demeritt, supra note 44, at 433.
331. See Daniel B. Botkin et al., Studying the Earth's Vegetation from Space, 34 BIOSCIENCE 508, 510 (1984).
332. See id.
333. SEE NAT'L RESEARCH COUNCIL, EARTH OBSERVATIONS FROM SPACE: HISTORY, PROMISE, AND REALITY 16 (1995);
334. NAT'L RESEARCH COUNCIL, EARTH SCIENCE AND APPLICATIONS FROM SPACE: URGENT NEEDS AND OPPORTUNITIES TO SERVE THE NATION 21 (2005);
335. Botkin et al., supra note 173, at 510.
336. Botkin et al., supra note 173, at 510-11. In 1990, Finland became the first country to use Landsat imagery as the basis for country-wide mapping of forest variables in its National Forest Inventory.
337. See Heather Reese et al., Countrywide Estimates of Forest Variables Using Satellite Data and Field Data from the National Forest Inventory, 32 AMBIO 542, 542 (2003).
338. See G.M. Woodwell et al., Measurement of Changes in the Vegetation of the Earth by Satellite Imagery, in THE ROLE OF TERRESTRIAL VEGETATION IN THE GLOBAL CARBON CYCLE: MEASUREMENT BY REMOTE SENSING 221 (G.M. Woodwell ed., 1984).
339. See, e.g., G.M. Woodwell et al., Deforestation in the Tropics: New Measurements in the Amazon Basin Using Landsat and NOAA Advanced Very High Resolution Radiometer Imagery, 92 J. GEOPHYSICAL RES. 2157, 2159-62 (1987) (discussing results of efforts to use satellite imagery to assess deforestation in the Amazon).
340. See William Booth, Monitoring the Fate of Forests from Space, 243 SCIENCE 1428, 1428 (1989) (reporting on calls from ecologists and remote sensing experts to develop and apply worldwide, "wall-to-wall" systematic assessment of deforestation);
341. Philippe Mayaux et al., Tropical Forest Cover Change in the 1990s and Options for Future Monitoring, 360 PHIL. TRANSACTIONS ROYAL SOCY B 373, 374-75 (2005) (discussing remote sensing initiatives in the early 1990s to establish a reliable baseline inventory of tropical forest resources and cataloguing main global land-cover maps derived from remote sensing data).
342. See, e.g., NAT'L RESEARCH COUNCIL, EARTH OBSERVATIONS FROM SPACE: THE FIRST 50 YEARS OF SOENTIFIC ACHIEVEMENTS 73 (2008) [hereinafter EARTH OBSERVATIONS FROM SPACE] ("For the first time, remote sensing made direct global observations of photosynthesis, plant growth, and ecosystem phenology possible, leading to the evolution of a global perspective on ecology.");
343. THE ROLE OF TERRESTRIAL VEGETATION IN THE GLOBAL CARBON CYCLE: MEASUREMENT BY REMOTE SENSING, supra note 177, at 7-8.
344. See, e.g.. EARTH OBSERVATIONS FROM SPACE, supra note 180, at 1 (discussing the launch of Sputnik in 1957 as a transformative moment for earth systems science, ushering in an era of space-based observations "that have fundamentally altered our understanding of the planet");
345. HAROLD A. MOONEY, THE GLOBALIZATION OF ECOLOGICAL THOUGHT 49 (1998) (characterizing remote sensing as "[o]ne of the foremost technological advances in recent decades" in terms of "the amount and quality of information on Earth System processes, at frequent intervals, and at many scales of resolution");
346. see also William C. Clark et al., Evaluating the Influence of Global Environmental Assessments, in GLOBAL ENVIRONMENTAL ASSESSMENTS: INFORMATION AND INFLUENCE 2-6 (Ronald B. Mitchell et al. eds., 2006) (discussing growth and influence of large scale "global environmental assessments" over the last several decades as important components of international environmental governance);
347. William C. Clark et al., Acid Rain, Ozone Depletion, and Climate Change: An Historical Overview, in 1 LEARNING TO MANAGE GLOBAL ENVIRONMENTAL RISKS: A COMPARATIVE HISTORY OF SOCIAL RESPONSES TO CLIMATE CHANGE, OZONE DEPLETION, AND ACID RAIN 22-26 (Social Learning Group eds., 2001) (describing evolution of knowledge of the earth system during the twentieth century and the related efforts to "manage" global environmental problems). On the concept of "earth systems governance," see supra note 7.
348. See also NAT'L RESEARCH COUNCIL, TOWARD AN UNDERSTANDING OF GLOBAL CHANGE: INITIAL PRIORITIES FOR U.S. CONTRIBUTIONS TO THE INTERNATIONAL GEOSPHERE-BIOSPHERE PROGRAM 2 (1988) ("[T]he prediction and ultimate management of environmental problems inescapably require development of a new earth system science aimed to improve understanding of the earth as an integrated whole.").
349. See Jasanoff, Heaven and Earth, supra note 152, at 44-45.
350. See, e.g., EARTH OBSERVATIONS FROM SPACE, supra note 180, at 84 ("The advent of satellite data has revolutionized our ability to characterize global land cover and monitor landuse patterns. Satellite sensors offer a synoptic view of Earth, as well as the objectivity associated with a consistent measurement and methodology for mapping the entire planet.").
351. See IPCC, GOOD PRACTICE GUIDANCE FOR LAND USE, LAND-USE CHANGE, AND FORESTRY 3.15 (Jim Penman et al. eds., 2003)
352. [hereinafter IPCC GOOD PRACTICE GUIDANCE];
353. GOFC-GOLD, REDUONG GREENHOUSE GAS EMISSIONS FROM DEFORESTATION AND DEGRADATION IN DEVELOPING COUNTRIES: A SOURCEBOOK OF METHODS AND PROCEDURES FOR MONITORING, MEASURING, AND REPORTING, GOFC-GOLD Report Version COP14-2, 1-11 to -13 (2009)
354. 2 emissions from deforestation and discussing the IPCC approach).
355. Carbon density refers to the amount of carbon per unit area, often expressed in tons of carbon per hectare.
356. See Asner, supra note 142, at 2 ("Satellites thus provide an opportunity to measure changes in forest carbon caused by deforestation and forest degradation but only if carbon densities have been assessed. Traditionally, carbon densities have been assessed using fieldbased inventory plots, which are valuable but also expensive, time-consuming and inherently limited in geographic representativeness. . . . New approaches are needed to extend field plot networks, and to bridge the gap between field measurements and satellite observations.").
357. See IPCC GOOD PRACTICE GUIDANCE, supra note 184;
358. IPCC, 2006 IPCC GUIDELINES FOR NATIONAL GREENHOUSE GAS INVENTORIES (Simon Eggleston et al. eds., 2006)
359. [hereinafter 2006 IPCC GUIDELINES FOR NATIONAL GREENHOUSE GAS INVENTORIES];
360. see also Ruth DeFries et al., Earth Observations for Estimating Greenhouse Gas Embissions from Deforestation in Developing Countries, 10 ENVTL. SCI. & POL'Y 385, 390 (2007)
361. [hereinafter DeFries et al., Earth Observations for Estimating Greenhouse Gas Emissions].
362. Light Detection and Ranging ("LIDAR") sensors use lasers to measure the three-dimensional distribution of vegetation, allowing for characterization of forest structure, which can be used as a basis for estimating forest biomass (carbon) over large areas. See GOFC-GOLD SOURCEBOOK, supra note 184, at 2-107 to -108.
363. See id. at 2-107 to -110 (discussing advances in LIDAR applications to forest monitoring and its potential deployment as an alternative method of field measurements to assess forest biomass);
364. see also Asner, supra note 142, at 1-10 (discussing use of LIDAR mapping techniques that, when combined with field calibration plots, can be used to generate aboveground carbon maps over very large areas, at relatively low cost and at high levels of accuracy). As discussed above, these capabilities are now being integrated into an online, transparent, publicly available platform that will use the Google "cloud" to "enable global-scale observation and measurement of changes in the earth's forests." See Google, supra note 142.
365. See, e.g., FRÉDÉRIC ACHARD et al., GOFC-GOLD REPORT NO. 33, USE OF REMOTE SENSING IN LULUCF SECTOR, at 7 (May 2008) (reporting that 60 percent of Annex I countries reported the use of remote sensing techniques in compiling their GHG inventories).
366. See id.
367. See Australian Gov't, Dep't of Climate Change, Nat'l Carbon Accounting Sys., http://www.climatechange.gov.au/ncas/ (last visited Sept. 2, 2009);
368. GOFC-GOLD SOURCEBOOK, supra note 184, at 3-130 to -131 (describing the Australian NCAS).
369. See ACHARD et al., supra note 190, at 18 (quoting Brazilian official on the importance of space-based monitoring of land use change: "a task which could never be conducted without the use of space technology").
370. See id. INPE has also adopted a policy of open access to all remote sensing data, resulting maps, and software. See Hilcéa Santos Ferreira & Gilberto Câmara, Current Status and Recent Developments in Brazilian Remote Sensing Law, 34 J. SPACE L. 11, 15 (2008) (describing INPE's de facto data policy of providing free access on the internet to "all remote sensing data received by INPE, the resulting maps, and the software for image processing and GIS").
371. See Coordenação-Geral de ObservaçãJ da Terra, Sistema DETER, http://www.obt.inpe.br/deter/ (last visited Aug. 12, 2009).
372. See GOFC-GOLD, http://www.fao.org/gtos/gofc-gold/ (last visited Sept. 2, 2009).
373. See GOFC-GOLD, Overview, http://www.fao.org/GTOS/gofc-gold/overview.html (last visited Sept. 2, 2009).
374. See MARTIN HEROLD et al., GOFC-GOLD REPORT NO. 30, REPORT OF THE 2ND GOFC-GOLD WORKSHOP ON TROPICAL DEFORESTATION iii (2007) ("The GOFC-GOLD network has emerged as an important expert forum to provide information and technical guidance on how remote sensing tools and methods, coupled with ground/based inventories, can support policies to monitor and reduce ... emissions [from deforestation].").
375. See GOFC-GOLD, Working Group on Earth Observations for Reducing Emissions
376. see generally GTOS/GOFC-GOLD, SUBMISSION TO UNFCCC ON THE ISSUE FOR REDUONG EMISSIONS FROM DEFORESTATION IN DEVELOPING COUNTRIES (RED-DC) (2007);
377. RUTH DEFRIES et al., GOFC-GOLD REPORT No. 26, REPORT OF THE GLOBAL TERRESTRIAL OBSERVING SYSTEM [GTOS] No. 46, REDUCING GREENHOUSE GAS EMISSIONS FROM DEFORESTATION IN DEVELOPING COUNTRIES: CONSIDERATIONS FOR MONITORING AND MEASURING (2006).
378. See, e.g., Anne-Marie Slaughter & David Zaring, Networking Goes International: An Update, 2 ANN. REV. L. & SOC. SCI. 211 (2006) (discussing the role of transnational regulatory networks in global governance).
379. GTOS/GOFC-GOLD, SUBMISSION TO UNFCCC ON THE ISSUE FOR REDUONG EMISSIONS FROM DEVELOPING COUNTRIES (RED-DC) (2007);
380. see also DeFries et al., supra note 187, at 386.
381. See supra Part III.B.
382. See Lisa M. Curran & Simon N. Trigg, Sustainability Science from Space: Quantifying Forest D'isturbance and Land-Use Dynamics in the Amazon, 103 PROC. NAT'L ACAD. SCI. 12663, 12663-64 (2006) (describing Carnegie Land Analysis System (CLAS) for assessing forest degradation as a "tremendous breakthrough" offering "enhanced governance capabilities, refined regional carbon emissions estimates, and better understanding of the complex drivers of deforestation from logging and road access");
383. see also Gregory P. Asner et al., Condition and Fate of Logged Forests in the Brazilian Amazon, 103 PROC. NAT'L ACAD. SCI. 12947, 12947 (2006) (describing the CLAS approach and applying it to selective logging in the Brazilian Amazon).
384. See Woods Hole Research Center, Presentation at the UNFCCC COP-13 in Bali, Indonesia: New Eyes in the Sky: Cloud-Free Tropical Forest Monitoring for REDD with the Japanese Advanced Land Observing Satellite (ALOS) (Dec. 2007).
385. GOFC-GOLD SOURCEBOOK, supra note 184, at 2-107 to -110 (discussing LIDAR applications for forest carbon assessment needs); Asner, supra note 142 (discussing integration of LIDAR mapping techniques with satellite-based remote sensing to provide a platform for tropical forest carbon assessment).
386. See Demeritt, supra note 44, at 433.
387. DeFries et al.. Earth Observations for Estimating Greenhouse Gas Emissions, supra note 187, at 389 ("High resolution data with nearly complete global coverage are available at low or no cost for early 1990s and early 2000s .... These data serve a key role in establishing historical deforestation rates.").
388. DeFries, Terrestrial Vegetation in the Coupled Human-Earth System, supra note 171, at 383.
389. B.L. Turner et al., The Emergence of Land Change Science for Global Environmental Change and Sustainability, 104 PROC. NAT'L ACAD. Sa. 20666, 20666 (2007).
390. To date, only a few environmental law scholars have focused on the role of remote sensing in environmental governance. See, e.g., Daniel C. Esty, Environmental Protection in the Information Age, 79 N.Y.U. L. REV. 115, 156-57 (2004) (discussing the role of remote sensing in environmental monitoring);
391. Kenneth J. Markowitz, Legal Challenges and Market Rewards to the Use and Acceptance of Remote Sensing and Digital Information as Evidence, 12 DUKE ENVTL. L. & POL'Y F. 219, 219-20 (2002) ("Satellite remote sensing and digital systems, including geographic information systems (GIS), provide powerful tools for visualizing and solving complex legal and environmental problems.").
392. This notion of equivalence borrows from DESROSIÈRES, supra note 143, at 324 (discussing the instrumental role of "the construction of equivalence spaces" in creating and elaborating statistical systems).
393. 2: Lessons of Water Rights for Carbon Trading, 50 ARIZ. L. REV. 91, 105 (2008) ("[E]fforts to improve the precision of property rights limit their alienability. Imprecise proxies may be more easily traded, but they fail to account for the externalities that will occur if the right is exercised in some new way or at some new location or some different time."). Salzman and Ruhl also point out that the challenges associated with the effort to account for "trades of nonfungible commodities ... seem remarkably similar to those faced by practitioners of cost-benefit analysis and comparative risk assessment."
394. See Salzman & Ruhl, supra note 30, at 632.
395. See supra Part III.B for a discussion of some of the technical challenges associated with the effort to bring forests into the Kyoto Protocol.
396. See IPCC, GOOD PRACTICE GUIDANCE, supra note 184;
397. IPCC, 2006 IPCC GUIDELINES FOR NATIONAL GREENHOUSE GAS INVENTORIES, supra note 187.
398. UNFCCC, Decision 19/CP.9: Modalities and Procedures for Afforestation and Reforestation Project Activities under the Clean Development Mechanbm in the First Commitment Period of the Kyoto Protocol, § K, U.N. Doc. FCCC/CP/2003/6/Add.2 (Mar. 30, 2004).
399. See, e.g., M. Skutsch et al., Clearing the Way for Reducing Embsions from Tropical Deforestation, 10 ENVTL. SCI. & POL'Y 322, 327 (2007) (discussing accounting challenges associated with bringing deforestation into climate policy);
400. Ian Noble et al., Implications of Different Definitions and Generic Issues, in LAND USE, LAND-USE CHANGE, AND FORESTRY 53-126 (Robert T. Watson et al. eds., 2000) (providing detailed discussion of major definitional, accounting, and methodological issues associated with efforts to include land use and forestry in climate policy).
401. See, e.g., Donald MacKenzie, Making Things the Same: Gases, Embsion Rights and the Politics of Carbon Markets, 34 ACCT., ORGS. & SOC'Y 440, 440 (2009) (analyzing how commensurability is established between emissions reductions activities and the role of such commensurability in providing "conditions of possibility" for emerging carbon markets);
402. Michel Callon, Civilizing Markets: Carbon Trading Between in vitro and in vivo Experiments, 34 ACCT., ORGS. & SOC'Y 535, 540 (2009) (discussing the establishment and stabilization of "equivalences" between different greenhouse gases as a critical prerequisite for economic valuation and the functioning of carbon markets);
403. Peter Levin & Wendy Nelson Espeland, Pollution Futures: Commensuration, Commodification, and the Market for Air, in ORGANIZATIONS, POLICY, AND THE NATURAL ENVIRONMENT: INSTITUTIONAL AND STRATEGIC PERSPECTIVES (Andrew J. Hoffman & Marc J. Ventresca eds., 2002) (examining the role of "commensuration" in creating tradable pollution permits and sustaining market-based approaches to air pollution control).
404. See Salzman & Ruhl, supra note 30, at 609-15.
405. 2 greenhouse gases. The IPCC First Assessment Report offered a tentative embrace of the concept, which soon became the "metric of choice" for comparing the climate impact of GHGs and provided a key part of the technical foundation for the Kyoto Protocol's embrace of a multigas approach. See Keith P. Shine, The Global Warming Potential: The Need for an Interdisciplinary Retrial, 96 CLIMATIC CHANGE 467, 467 (2009) [hereinafter Shine, GWP]. The IPCC First Assessment Report defined the GWP of a particular GHG as "the time integrated
406. commitment to climate forcing from the instantaneous release of 1 kg of a trace gas expressed relative to that from 1 kg of carbon dioxide." The report then identified three different time horizons for evaluating GWPs (twenty, one hundred, and five hundred years).
407. See K.P. Shine et al., Radiative Forcing of Climate, in CLIMATE CHANGE: THE IPCC SCIENTIFIC ASSESSMENT: WORKING GROUP I CONTRIBUTION TO THE FIRST ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 58, 60 (J.T. Houghton, G.J. Jenkins & J.J. Ephraums eds., 1990)
408. [hereinafter Radiative Forcing, 1990 IPCC REPORT].
409. The 100-year time horizon was selected, "without any clear scientific argumentation," as the basis for the GWP calculations for the six greenhouse gases regulated under the Kyoto Protocol. Katsumasa Tanaka et al., Evaluating Global Warming Potentials with Historical Temperature, 96 CLIMATIC CHANGE 443, 444 (2009) (discussing the GWP concept and the "arbitrariness" of the time horizon chosen for the GWP as a "fundamental shortcoming"). Obviously, different choices on time horizons would have generated different equivalences between the different GHGs.
410. See Shine, GWP, supra note 219 (discussing problems of using GWPs as a basis for comparing the climate impacts of different GHGs);
411. see also Tanaka et al., supra note 219, at 444-47.
412. See definitions of these terms supra notes 102, 103, and 104.
413. See Noble et al., supra note 102, at 83-89 (discussing challenges of leakage and permanence in context of land use, land-use change, and forestry activities);
414. Brown et al., supra note 102, at 304-16 (discussing issues of additionality, leakage, and permanence associated with forest carbon project activities).
415. See supra Part III.B.
416. See Noble et al., supra note 102, at 83-85 (discussing carbon leakage issues associated with forestry projects);
417. Sandra Brown et al., Issues and Challenges for Forest-Based CarbonOffset Projects: A Case Study of the Noel Kempff Climate Action Project in Bolivia, 5 MITIGATION & ADAPTATION STRATEGIES FOR GLOBAL CHANGE 99, 106-10 (2000) (discussing challenges of mitigating leakage associated with one of the first avoided deforestation projects).
418. See Brown et al., supra note 102, at 316-26 (discussing monitoring, accounting, and verification challenges associated with land use change and forestry projects).
419. See Noble et al., supra note 102, at 85-86 (discussing permanence challenges associated with avoided deforestation activities);
420. Ebeling & Yasué, supra note 106, at 1919 ("Permanence of emission reductions was a major controversial issue during earlier climate negotiations regarding the inclusion of forests as carbon sinks in the Kyoto Protocol. The concern was that if a newly created sink is burnt or logged, the sequestered carbon will be released back into the atmosphere and there will be no net emission reduction.").
421. See, e.g., Brown et al., supra note 102, at 304-08 (discussing issues associated with establishing baselines and assessing additionality for forest carbon project activities);
422. Fearnside, supra note 107, at 178-79 (discussing challenges of establishing baselines for avoided deforestation projects under CDM).
423. See supra Part III.C.
424. Efforts within the UNFCCC to expand the scope of REDD to include other forest carbon activities, such as enhancement and sustainable management of forest carbon stocks, under the broader umbrella of REDD+, depends upon the development of accounting frameworks capable of viewing the forest sector as a whole, across the relevant jurisdiction, and providing an accurate accounting of overall emissions and removals for the different sets of eligible activities.
425. See, e.g., UNFCCC, Draft Decision -/CP.15, Methodological Guidance for Activities Relating to Reducing Emissions from Deforestation and Forest Degradation and the Role of Conservation, Sustainable Management of Forests and Enhancement of Forest Carbon Stocks in Developing Countries, ¶ 1(d) (2009) (requesting developing country parties to establish "national forest monitoring systems" using forest carbon inventory approaches "for estimating, as appropriate, anthropogenic forest-related greenhouse gas emissions by sources and removals by sinks, forest carbon stocks and forest area changes") (footnote omitted).
426. See, e.g., UNFCCC, Views on the Range of Topics and Other Relevant Information Relating to Reducing Emissions from Deforestation in Developing Countries, 11-16, U.N. Doc. FCCC/SBSTA/2007/MISC.2 (May 2007), available at http://unfccc.int/resource/docs/2007/sbsta/eng/misc02.pdf (advocating national baseline approach as basis for REDD accounting);
427. Waxman-Markey Bill, supra note 125, § 743(e) (identifying national and state level reductions of deforestation relative to national- or state-level baselines as eligible for international offsets);
428. CAL. AIR RES. BD., supra note 127, at 38 (discussing possibility of accepting offsets from reduced emissions from deforestation "in accordance with appropriate national or sub-national accounting frameworks").
429. See Michael Dutschke, Fractions of Permanence-Squaring the Cycle of Sink Carbon Accounting, 7 MITIGATION & ADAPTATION STRATEGIES FOR GLOBAL CHANGE 381, 385-94 (2002) (discussing technical approaches to dealing with the permanence issue in afforestation and reforestation projects under the CDM);
430. Gregg Marland et al., Accounting for Sequestered Carbon: The Question of Permanence, 4 ENVTL. Sa. & POL'Y 259, 260 (2001) (identifying "permanence" as the "fundamental issue that is unique to sequestration projects" when compared to emissions reductions efforts and discussing various proposals to account for permanence of forest sequestration projects).
431. Noble et al. provide a technical discussion of permanence in the avoided emissions and sequestration context and note that "the effect of delaying for 1 year a given amount of fossil fuel burning or a given amount of deforestation will be to delay the release of carbon from the barrels of oil that would be burned or hectares of forest that would be deforested in subsequent years. To the extent that the emission displacement propagates forward until the end of the time horizon, the result is a 'permanent' saving."
432. Noble et al., supra note 216, at 85;
433. see also Philip M. Fearnside et al., Accounting for Time in Mitigating Global Warming Through Land-Use Change and Forestry, 5 MITIGATION & ADAPTATION STRATEGIES FOR GLOBAL CHANGE 239, 240 (2000) (noting that "[c]onfusion has often resulted from lumping all LUCF [Land Use Change and Forestry] activities in a single category as biotic sinks" and asserting that "in the case of avoiding deforestation in low-latitude regions, the result is more like reducing fossil fuel C [Carbon] emissions than it is like C sequestration in plantations").
434. See, e.g., Phillips et al, supra note 88, at 1344 (documenting significant carbon release from the Amazon rainforest during the intense drought of 2005).
435. See Howard Herzog et al., An Issue of Permanence: Assessing the Effectiveness of Temporary Carbon Storage, 59 CLIMATIC CHANGE 293, 294 (2003) ("[Economic considerations lead one to conclude that a ton of avoided [fossil fuel] emissions today will, absent an absolute quantity constraint on emissions in all regions through time, mean higher emissions in the future.").
436. See id. ("[T]he idea that a ton of fossil emissions avoided today is avoided forever is not necessarily an accurate characterization of the problem because that unburned fossil fuel may still be mined and burned later.").
437. See id. at 306 ("Permanence or lack thereof of different mitigation options is a function of the policy regime.... If the emissions cap is not global or cannot be maintained in perpetuity, then emissions reductions today will be subject to temporal leakage....");
438. see abo Fearnside et al., supra note 232, at 244 ("The cascading effect of displaced emissions depends heavily on the assumption that the C [Carbon] reserve (either forest or fossil) will last beyond the end of the time horizon.").
439. See Michael Dutschke & Arild Angelsen, How Do We Ensure Permanence and Assign Liability?, in MOVING AHEAD WITH REDD: ISSUES, OPTIONS, AND IMPLICATIONS 77 (Arild Angelsen ed., 2008) (discussing various approaches to permanence in context of REDD).
440. Clark A. Miller, Democratization, International Knowledge Institutions, and Global Governance, 20 GOVERNANCE 325, 339 (2007) (arguing "that kind-making is a key element in the emerging authority of international institutions to order global spaces"). Miller borrows the notion of "kind-making" from philosophers and historians of science, who employ it in an effort to capture the historical construction and normalization of distinct objects and categories
441. . See, e.g., IAN HACKING, THE SOCIAL CONSTRUCTION OF WHAT? 125-62 (1999) (discussing kindmaking and its role in creating "child abuse" as a new domain for medical inquiry and regulation);
442. John Dupré, Metaphysical Dborder and Scientific Disunity, in THE DISUNITY OF SCIENCE BOUNDARIES, CONTEXTS AND POWER 101, 104-06 (Peter Galison & David J. Stump eds., 1996) (discussing philosophical debates over "natural kinds").
443. See Miller, supra note 238, at 339 (noting that "[r]ecognition of the existence of new global kinds, such as the ozone layer, the Earth's climate system, or global financial markets, is an essential feature of globalism and underpins the authority of claims that the management, regulation, or preservation of these systems requires worldwide cooperation"). Other examples from the environmental area where new categories or kinds have been constructed at the intersection of science and law include persistent organic pollutants (POPs) and genetically modified organisms (GMOs).
444. See Henrik Selin & Noelle Eckley, Science, Politics, and Persistent Organic Pollutants: The Role of Scientific Assessments in International Environmental Cooperation, 3 INT'L ENVTL. AGREEMENTS: POL., L. & ECON. 17, 22-26 (2003) (discussing how the POPs problem was framed as a specific global kind starting in the late 1980s and the subsequent traction that the concept has gained in contemporary policy debates);
445. Javier Lezaun, Creating a New Object of Government: Making Genetically Modified Organbms Traceable, 36 SOC. STUD. SO. 499, 501-503 (2006) (discussing ways in which specific technical and administrative practices have allowed GMOs to be rendered "traceable" and, as a result, amenable to governance across global agro-food systems). Timothy Mitchell's work analyzing how "the economy" was made into an object that could be investigated and governed is similar to the notion of "kind-making" advanced here.
446. See, e.g., Timothy Mitchell, The Work of Economics: How a Discipline Makes Its World, 46 EUR. J. OF SOCIOLOGY 297, 298 (2005) (describing how "the economy" in its modern sense emerged in the mid-twentieth century as a result of socio-technical practices which "brought into being a world that for the first time could be measured and calculated as though it were a free-standing object");
447. TIMOTHY MITCHELL, RULE OF EXPERTS: EGYPT, TECHNO-POLITICS, MODERNITY 5 (2002) ("The economy did not come about as a new name for the processes of exchange that economists had always studied. It occurred as the reorganization and transformation of those and other processes, into an object that had not previously existed. The crises and forces that brought about this transformation lay partly in actions economists had always studied, but for the most part were far wider and more diverse. These 'extraeconomic' origins of the economy made possible new forms of value, new kinds of equivalence, new practices of calculation, new relations between human agency and the nonhuman, and new distinctions between what was real and the forms of its representation.").
448. See Paul N. Edwards, Meteorology as Infrastructural Globalism, 21 OSIRIS 229 (2006)
449. [hereinafter Edwards, Meteorology as Infrastructural Globalism] (analyzing the development of global infrastructures for weather observation and meteorology).
450. Edwards also emphasizes the role of standards in building and maintaining these infrastructures or networks for global monitoring and assessment.
451. See Paul N. Edwards, "A Vast Machine": Standards as Social Technology, 304 SCIENCE 827, 827 (2004) ("Behind the emerging consensus on climate change lie more than 150 years of slow, painful negotiations over global standards for measuring, recording, and communicating about the weather.").
452. Clark A. Miller & Paul N. Edwards, Introduction: The Globalization of Climate Science and Climate Politics, in CHANGING THE ATMOSPHERE: EXPERT KNOWLEDGE AND ENVIRONMENTAL GOVERNANCE 1, 7 (Clark A. Miller & Paul N. Edwards eds., 2001) (emphasis omitted). The environmental historian Richard White makes a similar point: "the very ability to formulate the scales of an environmental issue, either historically or in the present, is a social product. The current focus on global scale, for example, is not just the result of a correspondence between actual global environmental problems and scholarly efforts that correctly recognize them as such .... Without a social infrastructure-an international scientific community, incredibly sensitive measuring instruments, computer modeling, an international popular media willing and able both to reduce complicated problems to simple slogans and then to repeat them across the globe, and the ability of humans to move information and themselves quickly around the planet-global warming or the loss of biodiversity, to cite only two examples, would neither be recognized as global problems nor have the same potential for spurring historical change."
453. Richard White, The Nationalization of Nature, 86 J. AM. HIST. 976, 979 (1999).
454. Clark Miller, Climate Science and the Making of a Global Political Order, in STATES OF KNOWLEDGE: THE CO-PRODUCTION OF SCIENCE AND SOCIAL ORDER 54 (Sheila Jasanoff ed., 2004). Miller discusses the transformative role played by General Circulation Models (GCM) of the atmosphere between the mid-1960s and the late 1980s in re-conceptualizing the climate as "an integrated global system" and in establishing the foundation for the view that "it was the entire system that was ... at risk from human emissions of greenhouse gases."
455. Id. at 53-54;
456. th century using standardized instruments and a series of formal statistical rules ... turned the idea of climate into something that could be measured and quantified.").
457. Edwards, Meteorology as Infrastructural Globalism, supra note 240, at 239.
458. Jasanoff, supra note 152, at 45.
459. Obviously, these practices have relevance beyond the field of environmental law.
460. See GEOFFREY C. BOWKER & SUSAN LEIGH STARR, SORTING THINGS OUT: CLASSIFICATION AND ITS CONSEQUENCES 319 (1999) ("Classifications are powerful technologies. Embedded in working infrastructures they become relatively invisible without losing any of that power.");
461. DESROSIÈRES, supra note 143, at 236 ("Taxonomy is, in a way, the obscure side of both scientific and political work."). Of course, "forms of classification," to use the original phrase employed by Durkheim and Mauss, have received considerable attention in social theory and the sociology of knowledge since the early twentieth century.
462. See EMILE DURKHEIM AND MARCEL MAUSS, PRIMITIVE CLASSIFICATION (Rodney Needham trans., Univ. of Chicago Press 1963) (1903) (providing first sociological investigation into certain "primitive forms of classification"). This Article is particularly interested in how particular forms and practices of classification shape regulation and governance.
463. See, e.g., Pierre Bourdieu, Rethinking the State: Genesis and Structure of the Bureaucratic Field, 12 SOC. THEORY 1, 12-13 (1994) (analyzing "structuring structures," which he compares to Durkheim's "forms of classification," as "historically constituted forms" by which "social agents construct the social world" and emphasizing the central role of the state in the contemporary era in generating and consolidating particular forms of classification).
464. For a discussion of the history of efforts to develop classification systems for diseases, including the International Classification of Diseases (ICD), see BOWKER & STARR, supra note 246, at 53-133.
465. See also DESROSIÈRES, supra note 143, at 272-73 (discussing the origins of efforts to link certain occupations with particular diseases in order to develop "risk factors" as part of the larger effort to develop and refine the International Classification of Disease);
466. Charles E. Rosenberg, Framing Disease: Illness, Society, and History, in FRAMING DISEASE: STUDIES IN CULTURAL HISTORY xxi (Charles E. Rosenberg & Janet Golden eds., 1992) ("[D]isease classifications serve to rationalize, mediate, and legitimate relationships between individuals and institutions in a bureaucratic society.").
467. See, e.g., JOHN WARGO, OUR CHILDREN'S TOXIC LEGACY: HOW SCIENCE AND LAW FAIL TO PROTECT US FROM PESTIODES 172 (1998) ("[A]t what dose does a substance change from harmless, or even health-promoting, to damaging? This deceptively simple question has become the Achilles' heel of modern U.S. environmental law."). Wargo also discusses the "simplification of exposure and risk" embedded in the concept of average exposure and its problematic use in the regulatory sphere.
468. See id. at 219-34.
469. See Takacs, supra note 67, at 74-75 ("Use of the term biodiversity represents greater sophistication both in how we conceive of conservation and in how we promote broader conservation goals.... It is the label for a new, synthetic discipline devoted to conservation. The word represents a new approach, but not necessarily a new entity: the terms biological diversity, natural variety, and nature have been around for quite a while. Under the rubric of biodiversity, these terms are repackaged to unite amorphous, diverse endeavors in a streamlined, do-or-die conservation effort with biologists at the helm.");
470. Richard Norgaard, Ecosystem Services: From Eye-Opening Metaphor to Complexity Blinder, 69 ECOLOGICAL ECON. 1219, 1219 (2010) (discussing reductionist "stock-flow" framework that underlies the concept of ecosystem services and the implications for policy);
471. Erik Gómez-Baggethun et al., The History of Ecosystem Services in Economic Theory and Practice: From Early Notions to Markets and Payment Schemes, 69 ECOLOGICAL ECON. 1209 (2010) (discussing the history of the ecosystem services concept and its increasing use as a policy tool).
472. There is an extensive social science and historical literature on the role of quantification and its use (and abuse) in government and public policy. This Article finds inspiration in two different, though not mutually exclusive, approaches to quantification: quantification as what Theodore Porter calls a "technology of distance" directed primarily at problems of solving trust and accountability for public officials; and quantification as a "technology of visibility"-a way of seeing and organizing particular phenomena for investigation and governance. Compare, e.g., PORTER, supra note 9, at ix (describing quantification as a "technology of distance" given its capacity to act as a strategy for communication "that goes beyond the boundaries of locality and community" and that seeks to "produce knowledge independent of the particular people who make it")
473. with Clark Miller, New Civic Epistemologies of Quantification, 30 SCI., TECH. & HUM. VALUES 403, 425-26 (2005) (describing quantification as a "technology of visibility" and discussing how new technologies of visualization "have helped to transform the environment into an entity to be understood, managed, and governed on scales no smaller than the globe itself).
474. For a specific discussion of the role of quantification and its links to accountability in law that draws upon Porter's work, see Wendy Nelson Espeland & Berit Irene Vannebo, Accountability, Quantification, and Law, 3 ANN. REV. LAW & SOC. SCI. 21 (2007). Scholars working in the fields of science and technology studies have also taken measurement and quantification as important objects of inquiry.
475. See, e.g., Andrew Barry & Don Slater, Introduction: The Technological Economy, 31 ECON. & SOC'Y 175, 181 (2002) (discussing the importance of "metrology and calculation" in creating "new calculable objects");
476. Alexandre Mallard, Compare, Standardize and Settle Agreement: On Some Usual Metrological Problems, 28 SOC. STUD. Sa. 571, 572 (1998) (discussing the "increasing importance of measurement and precision for society as a whole, not only for scientific practices but for a society enlightened by the quantifying spirit"). Mallard focuses specifically on what she refers to as "legal metrology," based on the example of automobile emissions monitoring systems, as "a special way of coordinating and articulating metrological operations: of purifying them, making them visible and 'traceable', distributing them to different actors, embodying them in specific objects and organizations, and tying them up with procedures."
477. Id. at 574.
478. See discussion supra Part II.A.
479. See supra Part IV.B.
480. Recent studies documenting the emergence of new carbon property rights, particularly in the forest sector, include Samantha Hepburn, Carbon Rights as New Property: The Benefits of Statutory Verification, 31 SYDNEY L. REV. 239 (2009);
481. Takacs, supra note 128;
482. IUCN, supra note 128.
483. See also Levin & Espeland, supra note 217, at 124, 132-33 (analyzing the role of measurement and calculability-what they refer to as "measurement regimes"-in creating new commodities and providing the technical infrastructure for new environmental markets) (quote is at 124).
484. Clark Miller, New Civic Epistemologies of Quantification, 30 Sa., TECH. & HUM. VALUES 403, 425-26 (2005).
485. See ACKERMAN et al., supra note 12, at 18-19.
486. See id.
487. Id. at 28.
488. Id. at 30.
489. Think, for example, of the use of ambient concentrations of certain air pollutants as a proxy for human health impacts under the National Ambient Air Quality Standards (NAAQS) program; the use of "excess cancer deaths" as a shorthand way of determining acceptable risk at hazardous waste sites; or the many ways that risk assessments and cost-benefit analyses of various kinds employ proxies susceptible to quantification and monetization. Numerous examples also come to mind from the conservation and natural resources fields, from the use of specific ecological indicators of various types as proxies for ecosystem integrity to the use of acreage as a "surrogate" for the environmental services provided by wetlands in wetlands mitigation.
490. See, e.g., Virginia H. Dale & Suzanne C. Beyeler, Challenges in the Development and Use of Ecological Indicators, 1 ECOLOGICAL INDICATORS 3, 5 (2001) (discussing problems associated with use of ecological indicators in facilitating narrow, oversimplified management programs);
491. Vincent Carignan & Marc-André Villard, Selecting Indicator Species to Monitor Ecological Integrity: A Review, 78 ENVTL. MONITORING & ASSESSMENT 45, 50-52 (2002) (reviewing problems associated with the use of indicator species to monitor ecological integrity);
492. Royal C. Gardner, Mitigation, in WETLANDS LAW AND POUCY: UNDERSTANDING SECTION 404, at 263 (Kim Diana Connolly et al. eds., 2005) (noting that "[w]here site-specific data are lacking, the Corps may use acreage 'as a reasonable surrogate for no net loss of functions and values'") (citation omitted).
493. See, e.g., George M. Woodwell, Toxic Substances and Ecological Cycles, 216 Sa. AM. 24, 24 (1967) (discussing contributions of radioactive fallout studies to understanding "global, long-term ecological processes that concentrate toxic substances" in the environment);
494. David B. Peakall & Jeffrey L. Lincer, Polychlorinated Biphenyls: Another Long-Life Widespread Chemical in the Environment, 20 BIOSCIENCE 958 (1970) (describing techniques for measuring presence of PCBs in various environmental media and animal tissues);
495. S. Jensen et al., DDTand PCB in Marine Animab from Swedish Waters, 224 NATURE 247 (1969) (discussing early efforts to identify presence of PCBs in animal tissues);
496. George M. Woodwell et al., DDT in the Biosphere: Where Does it Go?, 174 SCIENCE 1101 (1971) (describing how global modeling permits appraisal of the hazards of DDT residues in the biosphere);
497. H.L. Harrison et al.. Systems Studies of DDT Transport, 170 SCIENCE 503 (1970) (discussing development and application of systems model for understanding long-term impacts of DDT in ecosystems).
498. See WILLIAM L. BUDDE, ANALYTICAL MASS SPECTROMETRY: STRATEGIES FOR ENVIRONMENTAL AND RELATED APPLICATIONS 5-11 (2001) (describing deployment of the first gas chromatography-mass spectrometry machines in the late 1960s and early 1970s, which underwrote substantial increases in capabilities for identifying the presence of organic contaminants in various environmental media, leading to new regulatory approaches).
499. See William Boyd, Controlling Toxic Harms: The Struggle Over Dioxin Contamination in the Pulp and Paper Industry, 21 STAN. ENVTL. L.J. 345, 359-61 (2002) (describing development of new analytical techniques in mid-1980s that revealed relatively high dioxin concentrations in waters previously identified as "background" streams).
500. See William E. Motzer, Perchlorate: Problems, Detection, and Solutions, 2 ENVTL. FORENSICS 301, 302 (2001) (describing development of new analytical techniques by the California Department of Health Services during the late 1990s that improved Perchlorate detection limits by some two orders of magnitude, revealing Perchlorate "in water sources not previously suspected of being contaminated").
501. See, e.g., John L. Butenhoff et al., The Applicability of Biomonitoring Data for Perfluorooctanesulfonate to the Environmental Public Health Continuum, 114 ENVTL. HEALTH PERSP. 1776, 1777 (2006) (discussing development of biomonitoring techniques since late 1990s that have uncovered widespread distribution of perfluorinated compounds in humans and wildlife);
502. Linda S. Birnbaum & Elaine A. Cohen Hubal, Polybrominated Diphenyl Ethers: A Case Study for Using Biomonitoring to Address Risk Assessment Questions, 114 ENVTL. HEALTH PERSP. 1770, 1771 (2006) (discussing use of biomarkers for assessing exposure to polybrominated diphenyl ethers, or PBDEs);
503. Antonia M. Calafat et al., Urinary Concentrations of Bisphenol A and 4-Nonylphenol in a Human Reference Population, 113 ENVTL. HEALTH PERSP. 391, 393 (2005) (finding widespread human exposure to bisphenol-A).
504. See JOSEPH V. RODRICKS, CALCULATED RISKS: THE TOXICITY AND HUMAN HEALTH RISKS OF CHEMICALS IN OUR ENVIRONMENT 208 (1992) ("Our ability to detect chemicals in the environment bears no relationship whatsoever to the degree of risk they pose.").
505. See, e.g., Arthur Daemmrich, Risk Frameworks and Biomonitoring: Distributed Regulation of Synthetic Chemicals in Humans, 13 ENVTL. HIST. 684, 685 (2008) (arguing that biomonitoring capabilities are driving changes in conceptions of risk and basic norms governing chemicals regulation);
506. Richard Albertini et al., The Use of Biomonitoring Data in Exposure and Human Health Risk Assessments, 114 ENVTL. HEALTH PERSP. 1755, 1756 (2006) ("Improved analytical capabilities make possible the accurate and precise measurement of many environmental chemicals at very low levels in the tissues of the general population, thus demonstrating human exposure to and absorption of chemicals, and often their distribution, metabolism, storage, and elimination."). George Woodwell provided an early (and prescient) analysis of how new capabilities for monitoring and assessing the fate and transport of toxic substances in ecological systems altered our ways of seeing the environment.
507. See Woodwell, supra note 260, at 24 ("Over the past decade detailed studies of the distribution of both radioactive debris and pesticides have revealed patterns that have surprised even biologists long familiar with the unpredictability of nature.");
508. see also Daniel C. Esty, Environmental Protection in the Information Age, 79 N.Y.U. L. REV. 115, 156-57 (2004) ("Breakthroughs in nanotechnologies and small-scale sensors, however, have begun to provide a vastly improved ability to detect and measure pollutants at a fine-grained level. Similarly, remote sensing from satellites in space and other new macroscale sensor technologies appear poised to provide onthe-ground monitoring of environmental conditions from anywhere, at any time, at increasingly low cost. We thus are approaching the day when virtually all emissions will be susceptible to tagging, tracking, and measurement at relatively low cost.").
509. See William C. Clark et al., Acid Rain, Ozone Depletion, and Climate Change: An Historical Overview, in 1 LEARNING TO MANAGE GLOBAL ENVIRONMENTAL RISKS: A COMPARATIVE HISTORY OF SOCIAL RESPONSES TO CLIMATE CHANGE, OZONE DEPLETION, AND AaD RAIN 30-31 (Social Learning Group eds., 2001) (discussing development of European Air Chemistry Network in mid-1940s and its role in providing the foundation for efforts to understand and approach acid rain as a large-scale, regional phenomenon);
510. Stephen Zehr, Method, Scale, and Socio-Technical Networks: Problems of Standardization in Acid Rain, Ozone Depletion, and Global Warming Research, 7 So. STUD. 47, 47-49 (1994) (discussing development of an acid rain monitoring network in the United States and its implications for policy approaches to the problem). Advances in air pollution modeling were also important in conceptualizing acid rain as a specific object of governance.
511. See David W. Cash et al., Knowledge Systems for Sustainable Development, 100 PROC NAT. ACAD. Sa. 8086, 8089 (2003) (discussing role of RAINS model in framing problem of acid rain as an object of governance).
512. See Levin & Espeland, supra note 217, at 132 ("Trading emissions requires that buyers and sellers see pollution as standardized units of some scarce resource. The shift in units of analysis from rates to aggregate pollution, which was crucial for creating this conception of pollution, was accomplished largely through the development of a rigorous emissions monitoring system. The EPA was primarily responsible for designing and implementing this 'continuous emissions monitoring system' (CEMS).");
513. Paul D. Brown, Lofty Goals, Questioned Motives, and Proffered Justifications: Regional Transport of Ground-Level Ozone and the EPA 's NOx SIP Call, 60 U. PITT. L. REV. 923, 967 (1999) ("CEMS [continuous emissions monitoring systems] provide a degree of certainty that the commodity sought actually exists. It protects the would-be purchaser from transacting for 'phantom' allowances.").
514. See EARTH OBSERVATIONS FROM SPACE, supra note 180, at 38-39 (noting "rudimentary view" of stratospheric ozone distribution provided by ground-based instruments in the "pre-satellite era" compared to the "revolutionized" understanding of atmospheric dynamics, and stratospheric ozone in particular, made possible by satellite instruments);
515. STEPHEN O. ANDERSEN & K. MADHAVA SARMA, PROTECTING THE OZONE LAYER: THE UNITED NATIONS HISTORY 5-19 (2002);
516. Zehr, supra note 267, at 48;
517. SETH CAGIN & PHILIP DRAY, BETWEEN EARTH AND SKY: HOW CFCS CHANGED OUR WORLD AND ENDANGERED THE OZONE LAYER 262-76 (1993).
518. A moment's reflection on the concept of average global surface temperature makes apparent the tremendous challenges involved in constructing such a measure, requiring the development, elaboration, and calibration of extensive observation networks across the planet and through time and the synthesis of enormous amounts of data.
519. See IPCC WG I REPORT, supra note 159, at 102 ("Despite the fact that many recent observations are automatic, the vast majority of data that go into global surface temperature calculations-over 400 million individual readings of thermometers at land stations and over 140 million individual in situ SST [sea surface temperature] observations-have depended on the dedication of tens of thousands of individuals for well over a century....[C]entury-scale global temperature time series would not have been possible without the conscientious work of individuals and organizations worldwide dedicated to quantifying and documenting their local environment.").
520. See PAUL N. EDWARDS, A VAST MACHINE: COMPUTER MODELS, CLIMATE DATA, AND THE POLITICS OF GLOBAL WARMING 139-86, 337-55 (2010) (discussing historical development of GCMs and their implications for knowledge about the climate system);
521. Leo J. Donner & William G. Large, Climate Modeling, 33 ANN. REV. ENV'T & RES. 1 (2008) (reviewing current state of climate modeling);
522. HERVÉ LE TREUT et al., CLIMATE CHANGE 2007: HISTORICAL OVERVIEW OF CLIMATE CHANGE SCIENCE: WORKING GROUP I CONTRIBUTION TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 112-18 (S. Solomon et al. eds., 2007) (providing overview of the development of climate modeling and the increased complexity and resolution made possible by advances in computational capacity).
523. Oreskes, supra note 9, at 70-71;
524. see also Amy Dahan Dalmedico, History and Epistemology of Models: Meteorology (1946-1963) as a Case Study, 55 ARCH. HIST. EXACT SCI. 395 (2001) (tracing the rise of innovative modeling practices in post-World War II meteorology to the deployment of increasingly powerful computational technologies-marking a broader shift in the study of earth systems from mathematization to modeling).
525. On simulations, see Peter J. Galison, Computer Simulations and the Trading Zone, in THE DISUNITY OF SCIENCE: BOUNDARIES, CONTEXT, AND POWER 118 (Peter Galison & Donald J. Stump eds., 1996) (discussing history of the Monte Carlo simulation and its epistemic implications);
526. Eric Winsberg, Sanctioning Models: The Epistemology of Simulation, 12 SCI. IN CONTEXT 275, 276 (1999) (describing simulation as "a form of calculation," but with its own unique epistemology).
527. On the use of Monte Carlo simulations in environmental risk assessment, see Susan R. Poulter, Monte Carlo Simulation in Environmental Risk Assessment-Science, Policy, and Legal Issues, 9 RISK: HEALTH, SAFETY, AND ENV'T 7 (1998).
528. The fundamental importance of models in environmental law and governance has not escaped environmental law scholars, although few have sought to place these practices within their historical context and understand, with reference to the vast literature on modeling, the kinds of knowledge claims made possible by such practices and the concomitant implications for governance.
529. See, e.g., Daniel A. Färber, Modeling Climate Change and its Impacts: Law, Policy, and Science, 86 TEX. L. REV. 1655, 1698 (2008) (providing a general overview of climate models and noting the importance of understanding the uncertainties and limits associated with such models);
530. James D. Fine & Dave Owen, Technocracy and Democracy: Conflicts between Models and Participation in Environmental Law and Planning, 56 HASTINGS L.J. 901, 912-13 (2005) ("Models can organize, manipulate, and process vast quantities of data and can simulate complex multivariable processes, and these capacities allow them to predict the future, compare alternative possible futures, test the ramifications of assumptions, and contribute to improved understanding of system interactions.");
531. Thomas O. McGarity & Wendy E. Wagner, Legal Aspects of Regulatory Use of Environmental Modeling, 33 ENVTL. L. REP. 10751 (2003) (providing an overview of key issues arising in substantive judicial review of EPA modeling and discussing key challenges to the use of models in regulatory decision making);
532. Charles D. Case, Problems in Judicial Review Arising from the Use of Computer Models and Other Quantitative Methodologies in Environmental Decision Making, 10 B.C. ENVTL. AFF. L. REV. 251 (1982) (reviewing increasing use of quantitative models in environmental decision making and the implications for judicial review).
533. See, e.g., Oreskes, supra note 9, at 79 (discussing the inability to evaluate and confirm model predictions regarding behavior thousands of years in the future, such as that of high-level nuclear waste repositories).
534. See id. at 81 ("Modeling may lead to greater rigor in the evaluation of earth processes, but it may also propagate the illusion that things are better known than they really are.");
535. Sheila Jasanoff & Brian Wynne, Science and Decision Making, in 1 HUM. CHOIOE & CLIMATE CHANGE 62 (pointing out that although models are often seen as "tools and heuristics" by the modeling community, they are often perceived and presented as "truth machines" in the policy community).
536. See CAGIN & DRAY, supra note 269, at 270;
537. Jasanoff & Wynne, supra note 275, at 32-33.
538. See ROSE, supra note 11;
539. FERGUSON, supra note 11;
540. SCOTT, supra note 11.
541. Cf. Salzman & Ruhl, supra note 30.
542. See DESROSIÈRES, supra note 143, at 104-05 (discussing the importance of conventions of equivalence in the development of national statistical traditions and the role of these conventions in "creating contexts of common measurement").
543. See, e.g., Laurent Thévenot, Organized Complexity: Conventions of Coordination and the Composition of Economic Arrangements, 4 EUR. J. SOC. THEORY 405, 407 (2001) (exploring different ways of creating equivalence between people or things in order to resolve economic coordination problems). The challenge of establishing equivalence is particularly apparent in the effort to construct markets for emissions and other environmental commodities.
544. 2 in New York. Standardized measures help produce these equivalencies and help reassure traders and regulators alike of the legitimacy of this equivalency. The technical commensuration accomplished in this synchronization of software, hardware, and bureaucratic rule-making transformed smoke from smokestacks into a meticulously tracked quantity.");
545. MacKenzie, supra note 217, at 440 (analyzing the "conditions of possibility of these [carbon markets], by examining ... what it takes to make the entities traded in these markets 'the same'").
546. See PORTER, supra note 11, at 27-28 (discussing development of standards for measuring pollutants in the environment, a process that "means disciplining people as well as standardizing instruments and processes" and developing "specifications [that] must be put into effect at millions of diverse locations, by calibrating millions of instruments and millions of people to the same standard").
547. On the GWP concept, see the discussion supra note 219. The IPCC First Assessment Report, which introduced the GWP concept as a possible tool for dealing with different greenhouse gases in climate policy, noted the difficulties of using this tool as an equivalence technique.
548. See Radiative Forcing, 1990 IPCC REPORT, supra note 219, at 58 ("In considering the policy options for dealing with greenhouse gases, it is necessary to have a simple means of describing the relative abilities of emissions of each greenhouse gas to affect radiative forcing and hence climate.... It must be stressed that there is no universally accepted methodology for combining all the relevant factors into a single global warming potential for greenhouse gas emissions. In fact there may be no single approach which will represent all the needs of policymakers."). And yet, the climate policy process has established the GWP as the basis for making greenhouse gases commensurable in existing and emerging compliance systems, illustrating the strong regulatory push for equivalence and the durability of particular conventions of equivalence.
549. For technical assessments of the GWP concept, including its shortcomings, see Shine, supra note 219;
550. Tanaka et al., supra note 219. See also MacKenzie, supra note 217, at 445-46 (describing the development of the GWP concept and its "inscription" into the Kyoto Protocol as a "black-box" for making greenhouse gases "commensurable"). MacKenzie also notes the importance of accounting standards and practices in "mak[ing] carbon 'fungible'" and, thus, amenable to trading.
551. Id. at 447.
552. See supra Part IV.C.
553. See Salzman & Ruhl, supra note 30, at 613-14;
554. Levin & Espeland, supra note 217, at 133-34.
555. See DONALD G. CROSBY, ENVIRONMENTAL TOXICOLOGY AND CHEMISTRY 143-53 (1998) (discussing use of dose-response relationship and animal bioassays in toxicology).
556. See, e.g., John D. Graham & Jonathan Baert Wiener, Confronting Risk Tradeoffs, in RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT 33 (John D. Graham & Jonathan Baert Wiener eds., 1995) (discussing challenges of comparing certain kinds of risks, but noting that "it is chiefly our lack of methods of comparison-of ways of seeing commonality among these risks-that makes these risks seem 'dissimilar' or noncomparable, not an inherent incommensurability");
557. SUNSTEIN, supra note 25, at 6-7 (discussing rise of cost-benefit analysis in U.S. environmental regulation and its "cognitive" virtues in providing a basis for comparing alternative courses of action);
558. PORTER, supra note 9, at 186-89 (discussing the historical transformation of cost-benefit analysis from a tool used by engineers to evaluate public works projects into a "universal standard of rationality" for evaluating a whole host of government expenditures and regulatory activities). Echoing Marx's famous observations on the role of money as the universal equivalent, Michel Callon describes the central role of money in constructing equivalences and ensuring commensurability in these sorts of exercises.
559. See Michel Callon, Introduction: The Embeddedness of Economic Markets in Economics, in THE LAWS OF THE MARKETS 21-22 (Michel Callon ed., 1998) ("[Money] makes commensurable that which was not so before. The case of negative externalities, for example the effects of pollution produced by a chemical plant, clearly illustrates this point. Once identified and acknowledged, [the externality], if it is to be framed and thus internalized, has to be measured .... This measuring involves the establishment of a metrology, anchored in techno-scientific instruments, which enables the agents concerned to establish quantitative correspondences between a cause (eg, the discharge of dioxin) and an injury (eg, a probability of cancer). This correlation between a risk of death and the activity of a factory, established by means of laboratory experiments and epidemiological research, creates a link between two distinct series of events. But if the relationship (between a discharge and deaths) becomes calculable by the agents, it is not enough merely to prove its existence; it has to be expressed in the same units. This is where money comes in. It provides the currency, the standard, the common language which enables us to reduce heterogeneity, to construct an equivalence and to create a translation between a few molecules of a chemical substance and human lives. Money comes in last in a process of quantification and production of figures, measurements and correlations of all kinds. It is the final piece, the keystone in a metrological system that is already in place and of which it merely guarantees the unity and coherence. Alone it can do nothing; combined with all the measurements preceding it, it facilitates a calculation which makes commensurable that which was not so before: grams of dioxin and a human life. Thanks to it the agents can measure the investments required to reduce the risk of death below a certain threshold. Money establishes an ultimate equivalence between the value of a human life and that of investment in pollution abatement.").
560. See, e.g., FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING (2004) (criticizing widespread application of cost-benefit analysis in evaluating environmental, health, and safety regulations);
561. Kysar, Climate Change, Cultural Transformation, and Comprehensive Rationality, supra note 29, at 562-89 (discussing key limitations of cost-benefit analysis in the climate change context).
562. In his fascinating history of statistical reasoning, Alain Desrosières discusses the "extremely expensive political, social, and technical investments" necessary to produce "the conventions of equivalence and permanence of the objects on which statistical practice is based."
563. See DESROSIÈRES, supra note 143, at 337. Desrosières rejects what he refers to as the "deadended epistemological opposition" between realism and relativism, asserting that statistical objects, such as poverty or unemployment, are both real and constructed.
564. See id. History thus provides the means for understanding how these objects came to be, how they were made to hold together, and how they are severed from their contexts, naturalized, and allowed to circulate as objective facts in public debate. Viewing statistics in this manner serves to reveal the relationship between statistics and the public sphere, helping to "clarify and analyze these spaces of durably solidified forms, which must simultaneously remain undebated so that life may follow its course, and debatable, so that life can change its course."
565. See id.
566. See Int'l Geosphere-Biosphere Program Terrestrial Carbon Working Group, The Terrestrial Carbon Cycle: Implications for the Kyoto Protocol, 280 SCIENCE 1393 (1998).
567. Id. at 1394.
568. See id.