[Dan Bodansky is the Associate Dean for Faculty Development and Emily and Ernest Woodruff Chair in International Law at the University of Georgia Law School and a leading expert on climate change regulation. He participated in the Bali meeting and contributed this report to Opinio Juris.]

Only in the context of the climate negotiations could Bali be considered a “breakthrough,” as the press is reporting. In the past year, concerns about climate change have led to Nobel prizes, Academy Awards, and changes in governments; but the UNFCCC process continues to creep in its petty pace, ultimately threatening to fall apart at the 11th hour (actually, more like the 30th, since the negotiations went a day extra) over confusion involving a comma. (After Bali, “Eats, Shoots and Leaves” should be required reading for climate negotiators!)

Nevertheless, though Bali fell short of the dramatic breakthrough called for at the UN high level meeting last fall, it does represent a considerable step forward. Significantly, developing countries signaled a greater willingness to take further measures to combat climate change, accepting a negotiating mandate that involves consideration of actions involving them (unlike the Kyoto Protocol’s negotiating mandate, which expressly excluded them). For its part, the United States agreed to “launch a comprehensive process [i.e., negotiations]” to address the post-2012 period, when the Kyoto Protocol’s first commitment period ends (a change from its position at the climate meeting two years ago in Montreal, when it opposed initiating a new round of negotiations). Given the continued opposition by the Bush Administration to legally-binding limits on greenhouse gas emissions, this baby step (bringing the US back to its position in 1991, when the climate change negotiations first began) was about as much as could reasonably be expected from the Bali meeting.

The final plenary (which I missed through colossal miscalculation) was by all accounts one of the most dramatic in recent memory. (A webcast is available on the UNFCCC website). Twice, the Indonesian environment minister, who was serving as the COP President, had to suspend the meeting, due to objections from developing countries that consultations were still underway in another room (apparently unbeknownst to the COP President or the UNFCCC secretariat), under the facilitation of the Indonesian foreign minister. (Talk about lack of coordination within a government!) When the meeting finally reconvened, UN Secretary-General Ban Ki-Moon (who flew back to Bali for the final plenary), together with the President of Indonesia, made impassioned pleas for action. Even then, the meeting threatened to break down, when the United States objected to a proposed amendment by China India. But after the text was clarified by other developing countries, the United States joined consensus, allowing everyone to declare victory.

In today’s New York Times, Thomas Friedman comments that he needed 10 experts to explain the Bali outcome to him – and he was there! I sympathize. Reading climate texts has become like Talmudic exegesis or deciphering a secret code — not something that can easily be undertaken by the outside observer! Each word has a long history, and is typically capable of multiple interpretations.

The two key issues in the negotiations over the so-called Bali Action Plan were: (1) whether to reference in the preamble an IPCC scenario involving 25-40% emission reductions (from 1990 levels) by developed countries by 2020; and (2) the degree of parallelism between the paragraphs of the mandate addressing developed and developing countries.

[Dan Bodansky, the Emily and Ernest Woodruff Chair in International Law at the University of Georgia Law School, is a leading expert on climate change and is co-editor of the recently published Oxford Handbook of International Environmental Law. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision.]

As usual, commentators are already busy re-litigating Massachusetts v. EPA, with environmentalists claiming a great victory and some conservatives consoling themselves that the Court’s holding about the Clean Air Act may not have a huge practical effect. I’m never quite sure whether this is all an exercise in spin – a calculated attempt to reshape reality by portraying it to one’s own advantage – or whether the divergent portrayals reflect the psychological tendency to square the world with our preconceptions. Regardless, the question remains: Who is right? What effect will the court’s decision have on climate change policy?

The most direct result of the Court’s holding would be to induce EPA to regulate emissions of carbon dioxide under the Clean Air Act, but I think that this is the least likely effect. Sure, the Administration may attempt to regain the initiative by a show of action. But although I’d love to be proven wrong, I have a hard time imagining the Bush Administration suddenly seeing the light and deciding to do anything real. Certainly, the Administration’s early reaction to the decision suggests that it intends to continue business as usual.

But while the decision may not lead directly to EPA regulation, it has changed the political landscape. First, the decision adds to the growing chorus about the threat of global warming. From a scientific standpoint, the Court’s voice may be relatively minor – really more of an echo than an independent source. The report issued last week by the Intergovernmental Panel on Climate Change is of much greater scientific significance. But, nonetheless, the Court’s imprimatur provides added legitimacy to the issue. Second, the decision further isolates the Bush Administration and discredits its reliance on voluntary measures. If we want to get serious about climate change, the court in essence says, some type of government regulation is needed. Third, the decision may signal how the Court will rule in future cases – for example, regarding whether states such as California can impose fuel efficiency standards or adopt other types of climate change measures. For all of these reasons, the decision increases pressure on Congress to act now, rather than leave the issue to the rule-making authority of the EPA or to a patchwork of state policies. As one Washington insider observed, “All roads now lead to Congress.”

From an international standpoint, will the Court’s decision help or hurt? In its brief, EPA had argued that requiring carbon regulation under the Clean Air Act could weaken US diplomatic efforts to persuade developing countries to take action against climate change. This argument is disingenuous, at best. If the US were actually engaged in negotiations with developing countries to limit emissions, EPA’s argument might at least have had the virtue of sincerity. But, in fact, the Bush Administration has made no effort to negotiate emission reductions on a reciprocal basis; instead, it has done the reverse, joining forces with developing countries in trying to block negotiations on future commitments.

The Bush Administration’s foreign policy argument about the effect of the Court’s decision is not only hypocritical; it is also wrong substantively. Far from undermining efforts to negotiate a stronger international climate change regime, unilateral regulation of emissions by the United States would be a tremendous boost to the negotiating process. Currently, lack of US action provides an easy excuse for developing countries – if the world’s richest country, and biggest emitter, isn’t taking action, why should developing countries be expected to do so? Strong US domestic action would change this dynamic, and give the US credibility in seeking stronger developing country measures. One can see the importance of leadership in California’s climate change program, which has put the pressure on others to take similar action. At least in the environmental realm, international progress has tended to grow out of domestic action, rather than the other way around.

After years in the doldrums, the climate change issue has now reemerged with greater urgency than ever. At a meeting that I attended a year and a half ago at Yale, Jeff Sachs predicted that the United States would get serious about climate change even before the next Administration came into office. At the time I thought that this was wishful thinking. But events since then suggest that Sachs may be right after all. Of course, we still have a long way to go. But the Court’s decision last week gives a significant boost to the climate change cause.