A Response to Tom Ginsburg, Michael Vandenbergh, Mark Cohen, and Jonathan Wiener

by Daniel Abebe and Jonathan S. Masur

We are very grateful to Professors Ginsburg, Vandenbergh, Cohen, and Wiener for engaging in this dialogue with us. The value of discussing these issues with such leading scholars in the field cannot be overstated.

Professor Ginsburg’s very helpful comments push us to focus on two main points: (1) the U.S. has similar internal dynamics that make committing to a climate change agreement difficult; and (2) China can more easily implement an agreement when it commits to “environmental policy  . . . over growth.” Professor Wiener’s post makes the first point as well. We agree that the US and other countries have internal divisions that complicate their attempts to deal with climate change.  We argue, however, that the differences in China are of a far greater magnitude than the blue state/red State divisions in the US and have more serious consequences for climate change. Eastern China is 5 times richer than Western China and the most serious fault lines that produce social instability—rich and poor, industrialized and agrarian, urbanized and rural—fit the East/West divide.  Moreover, in the US, blue states turn red and vice-versa; the CCP must satisfy its constituencies through economic growth, not representative government.  The cost of failure is much higher for the CCP (and China) than for the Democratic or Republican parties in the US.

Second, we agree completely that “when” China commits to climate change, it has the capacity to be effective in implementation. The question is how we should understand China’s incentives and when we can anticipate that this commitment will occur.  We don’t argue that it is impossible.  Rather, we argue that extant studies of China’s incentives miss the fact that the cost of restructuring internal center/province governance to address climate change is much higher than currently anticipated and that the projections of future emissions are too low because they don’t examine China’s internal dynamics.  We suggest that China will deal with climate change once it is more comfortable with the status of its domestic challenges, and that such a time will come later than most analysts predict.  Kyoto and Copenhagen suggest that more time is needed. While we certainly agree with Professor Ginsburg’s excellent comment that the US’s federal structure and adversarial legal culture can be an obstacle for climate change, we think that the internal obstacles that China faces—the necessity of aggressive growth policies, the social instability and East/West divisions—might be greater long-term obstacles for climate change.

Similarly, Professor Wiener may well be correct that internal dynamics will push China towards—rather than away from—an international climate change agreement. The mechanisms he points to are undoubtedly real, and we do not doubt that they exert some force. We suspect, however, that the opposite forces we describe in the Article will dominate any pro-regulatory tendencies, at least in the short term. Domestic Chinese movements for environmental protection are dwarfed by ongoing domestic demand for economic growth. And while Western China might have something to gain from a transition to a greener economy, it has much more to lose from curbs on cheap coal-based electricity and carbon-intensive cement production, to name just two industries.

Finally, we agree with Professors Vandenbergh, Cohen, and Wiener that innovative solutions—supply-chain pressures or the provision of extra pollution credits—might hold the key to inducing Chinese compliance with an international climate change accord. We hope that their optimism regarding these measures will turn out to be well-placed. We wish to emphasize only that we believe that the cost of implementing even these more creative and politically palatable approaches will be high—higher than any American policymaker yet realizes. Until the United States and Europe confront these costs squarely, a workable carbon emission agreement will remain out of reach.

http://opiniojuris.org/2010/02/04/a-response-to-tom-ginsburg-michael-vandenbergh-mark-cohen-and-jonathan-wiener/

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