A Response to Daniel Bodansky

by Nigel Purvis

Professor Bodansky is absolutely right that the success of U.S. climate change policy depends on whether our leaders can align domestic and international efforts.  Unless the United States does its fair share, other nations will not do theirs.  And yet a purely international solution – untethered to domestic political realities – has little chance of securing U.S. participation.  Bodansky’s own solution is a two-tier target – an initial level of effort that the United States pursues unilaterally, without pre-condition, and a second, more ambitious, mitigation target that the United States commits to only if other nations are also taking equitable action.  This makes perfect sense and, as Bodansky notes, it’s the posture Europe is taking now with respect to its post-2012 climate program.  Given America’s role in the world and its capacity to help solve the climate crisis, we should not hide behind China.  Rather, we must lead by taking an initial, cost-effective step forward.  Yet, given the costs and competitiveness concerns involved in transforming our economy, U.S. policy also needs to create incentives for other major emitting nations to act.  Holding out the promise of more ambitious U.S. emissions mitigation, coupled with new financial assistance for clean growth and climate adaptation, would lead China, India and other key countries toward sound climate policies.  As Bodansky notes, merely offering to turn the content of a new U.S. cap-and-trade law into a legally binding international commitment would not create a real negotiating dynamic at the global level.  Why should emerging economies move aggressively beyond existing policies when the United States would implement its cap-and-trade law regardless of what they do?  Kyoto created a free-rider problem by exempting developing nations.  A post-Kyoto agreement that asked for action by developing nations but gives them no incentives to make a deal could prove just as unhelpful and ineffective.

The real question is how best to implement Bodansky’s two-tier target approach.  There are several options.  The President could adopt the approach as a matter of executive branch policy.  Alternatively, the Senate or Congress could pass a non-binding resolution outlining the two-stage plan. Either of these would be a major improvement over the current situation – where neither the President nor Congress have been specific about what the United States needs in a post-Kyoto climate pact or about what carrots has to offer others.  Yet, neither a presidential policy nor congressional resolutions would give other nations confidence that the United States would actually follow through as neither would have the force of law, and neither would create a clear path for congressional approval of climate pacts.  Given the Senate’s treaty practice, in fact, developing nations would surely wonder whether the United States would actually join a new climate agreement – even if all U.S. conditions were met.

In contrast, the Congress could build both mitigation targets (the initial first unconditional step and the second conditional promise) into the heart of the cap-and-trade legislation it is considering right now.  By enacting into law both targets simultaneously and by delegating to the President the authority to certify to Congress when international conditions have been met, the United States would send a strong and clear signal to other nations about the sincerity of the U.S. offer and the benefits of meeting U.S. demands.  Congress too could have a voice in judging whether international conditions have been met.  Congress could vote on the question, using streamlined procedural mechanisms outlined in the cap-and-trade legislation itself to ensure a speedy and fair process.  If a majority of both houses agreed with the President that the conditions contained in the initial cap-and-trade legislation were met, for example, then the more stringent U.S. emissions target would take effect.  This sensible, collaborative process that would use domestic statutes and domestic procedural mechanisms to shape global climate negotiations is exactly what I mean by Climate Protection Authority.  Climate Protection Authority would have the force of law, and would give U.S. negotiators the credibility and leverage they need to lead global negotiations.  Climate Protection Authority, in short, is the legal mechanism we need to give life to Bodansy’s sensible two-tier emissions target approach.  More generally, Climate Protection Authority would allow the United States to negotiate agreements worth joining and join the agreements it negotiates.  Now wouldn’t that be a nice change?

http://opiniojuris.org/2009/06/12/a-response-to-daniel-bodansky/

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