Author Archive for
Dan Bodansky

The Illegitimacy of “Legitimacy”

by Dan Bodansky

[Professor Dan Bodansky is continuing his dispatches from the climate change talks.  This post is cross-posted at the Smith School of Enterprise and Environment at Oxford.]

Copenhagen, December 17 – With the hours counting down to the end of the Copenhagen conference, real substantive negotiations have yet to begin. Instead, the focus has been almost exclusively on procedure. All week, the Danes have wanted to put forward their own compromise text, which would be negotiated in a smaller group – the approach typically used to hammer out an agreement. But some developing countries – most notably Sudan, Bolivia and Venezuela (apparently with the (at least) tacit support of China) — have rejected this approach, arguing that it lacks transparency and is hence illegitimate. Instead, they have insisted that the only “legitimate negotiating process” is to continue to negotiate on the basis of the heavily bracketed text that emerged over the last two years in the two ad-hoc working groups, in negotiating groups open to participation by all parties. In my view, this process virtually guarantees that the Copenhagen conference will not produce a meaningful agreement, since the texts emerging from the two ad hoc working groups are a mess, with multiple options within options, and negotiating them in an open-ended group, with hundreds of delegations, is a prescription for deadlock.

The refusal by some developing countries to allow the Danes to introduce a text or to negotiate in a smaller group is made in the name of ensuring a legitimate, transparent, democratic process. But another way of understanding it is as a cynical effort by certain countries to use procedural objections to prevent a substantive agreement. Yesterday, after the Danes said they would table new texts, developing countries objected and the formal meetings were suspended for most of the day while the Danes consulted with developing countries about how to proceed. Reportedly, the G-77 (the developing country negotiated group) refused to participate in a smaller group organized by the Danish presidency to have substantive negotiations.

Today, in a desperate effort to move from procedure to substance, the Danes accepted the procedural approach insisted upon by developing countries. They promised not to introduce any new texts, and convened two “contact groups” that are open-ended in participation, to consider the texts forwarded from the ad hoc working groups. Meanwhile, it appears increasingly likely that the conference outcome will be a short political declaration largely devoid of substance, and a procedural decision to continue the “process,” such as it is. The ultimate question, of course, is whether there is a deal to be had that bridges the gap between the US, which wants a common legal framework for developed and developing countries (including common provisions on monitoring, reporting and verification); the major developing country economies, which want to preserve the strong differentiation reflected in Kyoto; and the European Union, which would be willing to commit to another round of Kyoto-like targets, but only if the US is subject to a comparable regime and developing countries are willing to join a new legal agreement that subjects them to stronger commitments.

Update from Copenhagen

by Dan Bodansky

Monday, December 14 – The climate negotiations ground to a halt for much of today, as negotiators debated the organization of work for the second and final week of the meeting. The ostensible cause of the breakdown was concern among (some?) developing countries that the Kyoto Protocol (KP) track in the negotiations is moving more slowly, and getting less attention, than the Convention track (the so-called Long-Term Cooperation Action track, or LCA) (although since the LCA track is itself moving very slowly, it is a bit difficult to understand the concern). For many members of the G-77, the differentiation enshrined in the Kyoto Protocol between developed countries (which have quantified emission reduction targets) and developing countries (which do not) is sacred. All last week, developing countries had been emphasizing the importance of continuing the Kyoto Protocol, rather than merging it into a single comprehensive agreement that addresses both developed and developing countries (as the EU, Japan and other industrialized countries would prefer). At the procedural level, this developing country position is reflected in a desire to maintain the complete separation between the two tracks in the negotiations, rather than merging them into a single discussion, as the Danes apparently envisioned.

But whether substantive concerns about the KP’s future fully explain today’s events is open to question The organization of work envisioned by the Danes (as COP president) had apparently received tacit approval at a ministerial meeting held on Sunday. So there is no reason why developing countries that had accepted the work program yesterday should suddenly object today. One possible explanation is that Sunday’s ministerial meeting included only a select group of about forty countries, and today’s work suspension reflected a move by the countries excluded from Sunday’s meeting to reassert themselves. Others speculate that today’s events reflect a reaction by working level negotiators worried that ministers might be too willing to reach agreement. Whatever the explanation, the COP lost the better part of a day, with only two days remaining now before heads of state arrive.

Ultimately, the Danish president convened a ministerial-level group to consider Kyoto Protocol issues, and a series of ministerial-led groups to consider particular issues in the LCA, including: the long-term goal of limiting temperature change (2 degrees, 1 ½ degrees, etc.), the way in which developing country actions are be reflected (a schedule, registry, etc.), and the scale of financial contributions. The other issues in the LCA, not elevated to the ministerial level, will continue to be discussed tonight and tomorrow morning in the various LCA contact groups, with the LCA (in theory) scheduled to wrap up its work tomorrow night and to report back to the COP on Wednesday morning.

Overall the conference is chaotic. Reportedly, some participants spent the better part of the day outside waiting in the registration line. Meanwhile, inside, NGO observers sang songs, strummed the guitar, and organized a “crime scene” with Sherlock Holmes inspecting a chalk drawing on the floor of Africa. With the number of registered participants far exceeding the capacity of the conference, security guards will begin restricting access tomorrow, with each NGO receiving only a limited number of slots.

Dan Bodansky Letter from Copenhagen

by Dan Bodansky

[As noted earlier, Professor Dan Bodansky is continuing his dispatches on the climate change talks.  He is Copenhagen this week and next, and sends us this initial letter from Copenhagen.  OJ will be providing additional commentary on the climate change talks -- from the conference, and from other academic commentators -- over the next week. Dan's letter is being cross-posted at the Smith School of Enterprise and Environment at Oxford.]

Under grey skies, the Copenhagen Climate Conference began this week in a sprawling complex at the edge of the city. Whether anything will actually happen here to address climate change remains an open question. But the conference is definitely a happening. Reportedly, more than 40,000 people have registered and the conference has dramatically more energy than the lead-up meetings (although that is an admittedly low standard of comparison). Indeed, my sense is that it’s on a bigger scale than any environmental meeting since Rio. And the energy will only build next week, with the arrival of more than 100 heads of state.

In theory, the outlook here should look bright, since the core substantive elements of the “deal” are already on the table. The major emitters have put forward their provisional national emission targets: 20-30% reductions from 1990 levels for the EU, in the range of 17% reductions from 2005 levels for the US, a 40-45% improvement in carbon intensity for China, and a 20-25 % intensity target for India. Although these numbers fall short of putting the world on a pathway towards the goal of limiting climate change to 2 degrees (indeed, there is disagreement whether the Chinese number is any improvement on BAU), I think few realistically expect them to be tightened during the course of the conference (although the EU has criticized both the US and EU numbers as too weak, so I may easily be proved wrong). Similarly, the figure of $10 billion annually in near-term (“fast start”) financial assistance, which the US and EU have endorsed, may not meet the financial needs of developing countries, but I don’t think it will be the subject of further negotiations.

With these substantive elements in place, one might expect a deal to be easy, but the reality is far different. Not only do the various negotiating texts remain a mess, there is still no political agreement on the “architectural” aspects of the regime, including the legal form of the ultimate outcome. The divergence of views is reflected in the two texts that are informally circulating at the meeting: a text that the Danish presidency put forward last month at a pre-COP ministerial meeting, which has drawn significant fire from developing countries; and the BASIC text developed by Brazil, South Africa, India and China (the so-called BASIC group). And the opening days of the session revealed the growing rifts within the G-77 (the developing country negotiating group) between those who favor a weaker and stronger outcome.

The following is a brief summary of the key issues in the negotiations:

Bodansky: Letter from the Barcelona Climate Change Talks

by Dan Bodansky

[Daniel Bodansky, University of Georgia School of Law and OJ guest blogger, sends this dispatch on the state of the Climate Change talks leading up to the Copenhagen Conference.  Professor Bodansky will also be blogging from Copenhagen here at Opinio Juris in December.]

Barcelona, 4 November 2009

The UN climate change negotiations resumed on Monday in Barcelona, after only a three week hiatus since the last round in Bangkok. Between the official negotiations, the parallel political meetings of the major economies forum (MEF), the Commonwealth, and APEC, the numerous bilaterals (including the upcoming Obama visit to China), and the off-line dialogues convened by Denmark, the negotiating process will essentially be non-stop between now and when the Copenhagen Conference begins on December 7.

But progress remains elusive at best. The disconnect between the political urgency surrounding the climate change issue among political leaders and the insular world of the UNFCCC negotiations is growing ever more striking.

On the one hand, most of the key countries or groups – the EU, Japan, China, Brazil, India, South Africa, Indonesia and Australia – have either adopted or appear near to adopting domestic climate change policies. And although enactment of climate change legislation by the United States remains in doubt, a major bill has already passed the House of Representatives and the Senate is now beginning its consideration of similar legislation. So, from the perspective of national climate change policies, prospects have never been brighter. . . .

Bali High?

by Dan Bodansky

[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.

Roundtable on Massachusetts v. EPA: Domestic and International Policy Effects

by Dan Bodansky

[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.