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					 Markets, Transaction Costs, and Carbon Offsetting: Why Fund-Based
Offsetting Might Outperform Tradable Property Rights-Based Offsetting
                         Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010




Introduction ............................................................................................................................................ 2
I. A Brief Intellectual History of Tradable Property Rights: from Smith through Coase
to the carbon offset ............................................................................................................................... 5
   A. Adam Smith and the beauty of automatic market correction...................................................... 6
   B. Hayek, efficient markets, public choice theory, and market romanticism ............................. 7
   C. Coase and using markets to solve market failure ......................................................................... 10
   D. The birth of cap and trade ..................................................................................................................... 12
   E. Carbon Offsets ............................................................................................................................................ 15
II. Offsetting Theory and Practice ................................................................................................. 17
   A. The Goals of CDM Offsetting .................................................................................................................. 18
   B. CDM Procedures & Substantive Standard ........................................................................................ 18
      1. CDM Procedures ..................................................................................................................................................... 19
      2. CDM Substantive Standards............................................................................................................................... 20
   C. The Structure of the CDM Marketplace ............................................................................................. 22
   D. How Much Does it Cost Projects and Developers to Use the CDM System? .......................... 27
      1. Existing Estimates of CDM Efficiency............................................................................................................. 28
      2. Towards a better understanding of transactions costs .......................................................................... 31
      3. Quantifying the efficiency problem ............................................................................................................... 32
      4. The Implications of Transaction costs in Offsetting ................................................................................ 36
   E. Environmental Criticism of the CDM .................................................................................................. 37
      1. The HFC-23 problem............................................................................................................................................. 37
      2. The additionality problem .................................................................................................................................. 37
   F. A Concluding Observation ...................................................................................................................... 40
III. Tracing Offsetting’s Problems to Market Structure ......................................................... 41
   A. The New Institutional Economics ....................................................................................................... 42
   B. Market Structure and Inefficiency ...................................................................................................... 47
   C. Market Structure and Catastrophic Risk, with an extended analogy to the 2008 collapse
   of the U.S. residential mortgage market ................................................................................................ 49
   D. Transaction costs and the CDM’s Environmentally Un-Sound Allocation of Capital ........ 55
IV. A “Public Option” for Carbon Offsetting: The Fund Alternative ................................... 59
   A. How fund-based offsetting could serve as a substitute for traditional offsetting ............. 59
   B. How a fund-based architecture might be more efficient ............................................................ 66
   C. How a fund-based architecture might better manage risk ........................................................ 68
   D. How the Fund Could Improve Environmental Decisionmaking .............................................. 70
V. Do Existing Proposals for New Cap and Trade Programs Recognize the Problems
with the Current Carbon Market’s Structure?........................................................................... 71
   A. International negotiations and the structure of the carbon market: the state of play at
   Copenhagen and beyond. ............................................................................................................................ 72
   B. National/Regional Cap and Trade Systems and Carbon Market Structure .......................... 78
      1. Europe’s EU ETS ..................................................................................................................................................... 78
      2. U.S. Federal Legislation ........................................................................................................................................ 79
      3. Australia’s legislative effort ............................................................................................................................... 80
      4. The Regional Greenhouse Gas Initiative ....................................................................................................... 81
      5. California’s A.B. 32 ................................................................................................................................................. 81
      6. Concluding Observation ...................................................................................................................................... 82
Conclusion ............................................................................................................................................. 82




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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


                                                INTRODUCTION
         Cap and trade is the dominant policy approach to reducing the greenhouse gas emissions

that cause climate change. Cap and trade gives “capped” parties a choice between two

compliance options: they can either reduce their emissions to match the number of emissions

allowances they have been issued or purchase enough allowances to cover the difference

between their actual emissions and their cap level. The existence of the second option

encourages participants who can reduce emissions cheaply to maximize their reductions and sell

their emissions rights to participants who face higher emissions reductions costs, thereby

reducing the cost to society of reducing emissions to the level of the system’s overall cap.

         But all extant greenhouse gas (GHG) cap and trade systems also allow participating to

meet their obligations in a third way: by purchasing offsets. Offsets, like allowances, are a right

to emit GHG. Unlike allowances, however, offsets are not created by the government fiat, but

are “new” rights created by emissions-reducing activities “outside the system.” For example, if

an un-capped electric utility in Indonesia elects to meet new demand with a windmill rather than

a coal plant, it may be entitled to offset credit corresponding to the difference in the emissions

between the coal plant and the windmill.1 It can then sell this offset credit to a capped utility in

(for example) Germany, allowing the German utility to meet its obligations without direct

reductions or the purchase of allowances from other capped firms. As a result of such a sale,

emissions within the geographic or sectoral boundaries of the cap and trade will remain above

the cap level, but emissions outside of the system will decrease by a corresponding amount,



         1
           KARAN CAPOOR & PHILIPPE AMBROSI, STATE AND TRENDS OF THE CARBON MARKET 2009 (World Bank
2009), http://wbcarbonfinance.org/docs/State___Trends_of_the_Carbon_Market_2009-FINAL_26_May09.pdf.
Offsets are sometimes mistakenly equated with carbon sinks such as forestry projects. In fact, sink projects are a
sub-set of offset projects. Most offsets are currently derived from avoided emissions projects such as clean energy
generation and energy efficiency improvements. Id., at 40.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


meaning that the system’s contribution to worldwide greenhouse gas mitigation is not affected

by the use of offsets.

         Offsetting may end up being just as important as cap and trade’s other two compliance

strategies. Under Kyoto, more than 1,800 offset projects have been approved, with another

2,500 awaiting validation or approval.2 During the 2008-2012 Kyoto compliance period, these

offset projects are expected to produce around 300 million tCO2 of offset credit per year,3 an

amount equal to 2.5% of the system’s 1990 baseline, 4 or half of the reductions against baseline

required to reach the system’s total cap of 5% below baseline. 5 The Waxman-Markey cap and

trade bill, which passed the U.S. House of Representatives but not the Senate in 2009, would

allow even more offsetting—up to 2 billion tons per year, 6 or more than six times as many

offsets as are likely to be used worldwide under Kyoto.7 Indeed, the US EPA’s analysis of the


         2
             Unep-Riso Centre, CDM/JI Pipeline Analysis and Database, http://cdmpipeline.org/overview.htm
(October 2009 data).
           3
             CAPOOR & AMBROSI, STATE AND TRENDS OF THE CARBON MARKET 2008 (World Bank 2008),
http://wbcarbonfinance.org/docs/State___Trends_of_the_Carbon_Market_2009-FINAL_26_May09.pdf, at 57.
           4
             United Nations Framework Convention on Climate Change, Annual compilation and accounting report
for Annex B Parties under the Kyoto Protocol 9 (Dec. 1 2008),
http://unfccc.int/resource/docs/2008/cmp4/eng/09r01.pdf (showing “base year” Annex 1 emission of 12.03 billion).
Of course, assuming that these signatories’ emissions would have continued to rise from 1990-2012 but for the
Kyoto Protocol, 2.5% of 1990 emissions may be much less than half of total emissions measured against a business
as usual baseline. By way of context, Annex 1 emissions as a whole are currently 3.9% below 1990 levels, though
this reduction is due to the collapse of the former Eastern Bloc. Emissions for the Annex I parties that are not
“Economies in Tradition,” are about 11.2% above 1990 levels.
http://unfccc.int/files/ghg_data/ghg_data_unfccc/image/pjpeg/trends_excluding_2009.jpg
           5
             Wara and Victor suggest that the importance of offsets will be even greater in the EU-ETS cap and trade
system than in the Kyoto cap and trade system as a whole. They estimate that during the 2008-2012 Kyoto
compliance period, “import of [offsets] could account for up to ten times the actual reductions of emission
reductions from within the EU cap-and-trade system.” Michael W. Wara & David Victor, A Realistic Policy on
International Carbon Offsets 9 (Program on Energy and Sustainable Development Working Paper #74, April 2008),
http://iis-db.stanford.edu/pubs/22157/WP74_final_final.pdf. On the other hand, a European Environment Agency
report suggests that a maximum of 13.4% of emissions reductions within the EU-ETS will come from offsetting.
European Environment Agency, Greenhouse Gas Emissions Trends and Projections 2009 64 (2009).
           6
             The American Clean Energy and Security Act of 2009, § 722(d)(1)(a)-(d).
           7
             UNEP-Riso Center, CDM/JI Pipeline Analysis and Database, http://cdmpipeline.org/overview.htm. The
EPA’s modeling of the 1,428 page bill, however, predicts that actual usage of offsets will be below the statutory
limit, ranging from around 1,000 MtCO2 to 1,200 MtCO2 per year, or about 130-160% of projected worldwide
offset use during the 2008-2012 Kyoto compliance period. U.S. Environmental Protection Agency, EPA Analysis of
the American Clean Energy and Security Act of 2009 H.R. 2454 in the 111th Congress, available at
http://www.epa.gov/climatechange/economics/pdfs/HR2454_Analysis.pdf


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


bill predicts more than 50% of emissions reductions through 2030 would come from offsetting

rather than inside-the-system reductions.8

        Despite their popularity with both policymakers and capped entities, offsets have been

severely criticized by academics, journalists, and environmental NGOs. These critics allege that

the offset certification process is too lax, leading to the certification of projects that would be

viable even without the offset system’s subsidy. At the same time, project developers and other

carbon markets participants complain that the environmental checks set up by offset regulators

are too onerous. Complex algorithms for the quantification of emissions reductions, strict

evidentiary requirements for proving the financial marginality of the project, and duplicative

review of project applications, these critics say, make the offsetting process unnecessarily costly,

cause long administrative time delays that chill investment, and unfairly disfavor small projects. 9

        In this paper, I trace both of these lines of criticism to the microeconomic structure of the

offsetting market. In Part I, I set out the intellectual history of the cap and trade and offsetting,

explaining how Economic theories about how markets work led to a market-focused revolution

in environmental policymaking. In Part II, I examine the current practice of carbon offsetting,

explaining the roles played by buyers, sellers, market brokers, speculators, specialist software

providers,10 rating agencies, consultants, layers, lobbyists, quasi-public regulators, trade

journalists, and other carbon market participants. I also summarize criticisms that the existing

system is inefficient, may not adequately manage catastrophic risk, and is environmentally

unsound, concluding that both of these criticisms are well founded. In Part III, I seek to trace

        8
           Michael Wara, Written Testimony to the U.S. Senate Committee on Energy and Natural Resources
Concerning the Methods of Cost Containment in a Greenhouse Gas Emissions Trading Program 9 (September
2009), http://energy.senate.gov/public/_files/WaraTestimony091509.pdf.
         9
            Tyler McNish, et. al, Sweet Carbon: An Analysis of sugar industry carbon market opportunities under the
clean development mechanism, 37 Energy Policy 5459, pincite (2009) (collecting citations to criticism)..
         10
            See APX Launches New Communications Standards with APX Project Track™,
http://www.apx.com/news/pr-APX-Launches-New-Communications-Standards-with-APX-Project-Track.asp


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


offsetting’s shortcoming to the administrative and industrial structure of existing offset

mechanisms. A fundamental problem with such mechanisms, I suggest, is that they extend cap

and trade’s tradable property rights model to the distinct problem of encouraging investment in

emissions-reducing projects outside the cap and trade system, a problem to which tradable

property rights are not well suited. Like Rube Goldberg, we have designed a fascinating system

that does the same thing a simpler system would do, but with a great deal more complexity. In

Part IV, I sketch the outline of what such a “simpler system” might look like, proposing a

wholesale replacement of the existing model of offsetting with a model centered around a

publicly-managed investment fund. Such “fund-based offsetting,” I argue, has the potential to

better manage transaction costs, leading to superior environmental outcomes at a lower price. In

Part V, I examine the extent toward which the international, national, and regional cap and trade

initiatives currently under development recognize the ideas presented in the preceding Parts.

While increased use of “green funds” as a “carrot” intended to secure developing-country

participation in a global climate change agreement may be evidence of growing dissatisfaction

with market-based offsetting, no proposal to date has recommended a comprehensive fund-based

reform, a fact that I speculate may be explained by the continued acceptance of the market-based

logic behind the existing offsetting model.


 I. A BRIEF INTELLECTUAL HISTORY OF TRADABLE PROPERTY RIGHTS: FROM SMITH
                    THROUGH COASE TO THE CARBON OFFSET

       This Part begins with a digression into the intellectual history of using market-traded

emissions rights to solve environmental problems. Cap and trade’s tradable property rights

approach, I suggest, was developed for the purpose of efficiently shifting regulatory burdens

among polluters inside the system. Incentivizing investment in emissions-reducing projects by



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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


unconstrained developers outside the system is a very different task, one to which a tradable

property rights regime may not be well-suited.

A. Adam Smith and the beauty of automatic market correction
       Our story starts, as stories about economic intellectual history tend to, with Adam Smith.

In 1776, Smith observed that “[i]t is not from the benevolence of the butcher, the brewer, or the

baker, than we expect our dinner, but from their regard to their own interest.”11 For even if these

individuals do not “intend to promote the public interest,”12 they nevertheless refrain from

charging higher-than-average prices in order to forestall their customers from switching to their

competitors. It is this competitive constraint, Smith realized, that rationalizes the economy’s

dynamic adjustment to gluts and shortages. When a glut of meat, barley, or wheat decreases the

costs of the inputs to our small businessmen, they must lower their prices as well, for if they do

not, competitors willing to live on shorter rations will undercut them and take away their

customers. In this way, the falling prices of farm goods are transmitted to consumers,

encouraging them to demand more farm goods. At the same time, the farmers on the other end

of the market are now earning less for the same amount of work, inspiring some of them to shift

to more profitable activities and decreasing the total supply of produce. The scissors of rising

demand and falling supply conspire to erase the glut and “clear the market.” The most talented

Soviet planner would have a devil of a time figuring out how to allocate production and

consumptions quotas in a way that accomplishes this feat, but the competitive market does it

automatically and unconsciously. As Smith put it, each individual has been “led by an invisible

hand to promote an end which was no part of his intention.”13




       11
          Adam Smith, THE WEALTH OF NATIONS (Modern Library 2000), 15.
       12
          Id. at 485.
       13
          Id., at 485.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


B. Hayek, efficient markets, public choice theory, and market romanticism
         Smith’s articulation of an organic, decentralized form of social order that worked without

the intervention of an organizing intelligence became the abiding fascination of the Economics

profession over the next two centuries, and its hold on the popular and policymaking imagination

increased in the second half of the 20th century. The movement had several strands, among the

most important of which were the romanticization of market rationality by the Anglo-American

conservative movement, the articulation of the efficient markets hypothesis by financial

economists, and the insights of the public choice movement.

         In the late 1940s, the expatriate Austrian economist Friedrich Hayek wrote the Road to

Serfdom because he was concerned that British intellectuals and policymakers were overly

enamored with the Soviet Union’s five-year plan system, and thought that growing support for

the replacement of “wasteful market excesses” such as duplicative businesses with industrial

planning overlooked Smith’s insights about market adjustment. Hayek joined his practical

explanation of why markets outperform planners in dynamic adjustment to powerful rhetoric on

the moral superiority of market organization. Speaking with the authority of a Mittel-European

who had lived through the birth of fascism and socialism, he wrote that planners by definition

substitute their own plans for the plans that the free market leaves to individuals. Even where

these planners are democratically-elected they will subvert the expression of minority

preferences to the Romantic goals of a majoritarian State—the essence, Hayek said, of both

fascism and socialism. 14 His message inspired a generation of conservative thinkers in both


         14
            This is even more explicit in the work of Hayek’s Austrian colleague Ludwig Van Mises. “[The
planners] are driven by the dictatorial complex. They want to deal with their fellow men in the way an engineer
deals with the materials out of which he builds houses, bridges, and machines. They want to substitute "social
engineering" for the actions of their fellow citizens and their own unique all-comprehensive plan for the plans of all
other people. They see themselves in the role of the dictator—the duce, the Führer, the production tsar—in whose
hands all other specimens of mankind are merely pawns.” Ludwig Von Mises , THE ULTIMATE FOUNDATION OF
ECONOMIC SCIENCE: AN ESSAY ON METHOD (2006).


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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


Britain and the U.S., and was put to a popular audience over the next few decades by Milton

Friedman, Ayn Rand, and a host of imitators.15 The Hayekian worldview acceded to the halls of

power with the election of Ronald Reagan and Margaret Thatcher. 16

         During roughly the same period, financial economists laboring to understand the U.S.

stock market came up with a theory that re-invigorated academic enthusiasm for market

ordering: the efficient markets hypothesis. Finance professors wanted to explain stock price

movements, but the stock market refused to yield its secrets to the kind of scientific inquiry that

had succeeded in predicting other natural and social phenomena. All they found was chaotic

randomness.17 The revolution came when the professors began to suggest that the market might

move so randomly because it was so good at calibrating the prices of securities to suit new

information from diverse sources.18 For if you had a theory that accurately predicted the way the

market would move tomorrow, you would buy stocks that you know are going to increase in

value and sell stocks that you know are going to decrease in value. As a result of these purchases

and sales, the predicted movement would materialize not tomorrow, but today. Extending this

logic, it is clear that the stock market already “prices in” all the information and theory that is

available, meaning that it cannot be moved by existing information and theory, and that any

movement that does occur is a response to unforeseen events, which are by definition random. A

corollary of this hypothesis is that the only way you can “beat” the market is to trade on new

information than other market participants don’t have access to (something that is usually

illegal). Early empirical tests confirmed the accuracy of this hypothesis, and led to the


         15
             Jerry C. Muller, THE MIND AND THE MARKET 347 (2002).
         16
             See, e.g. Ronald Reagan, First Inaugural Address, January 20 th, 1981 ("In this present crisis, government
is not the solution to our problem; government is the problem…. It is no coincidence that our present troubles
parallel and are proportionate to the intervention and intrusion in our lives that result from unnecessary and
excessive growth of government.")
          17
             Justin Fox, THE MYTH OF THE RATIONAL MARKET 26-27 (2009).
          18
             Many of the leaders in this movement were inspired by Hayek. Id.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


articulation of a widely-accepted “Capital Asset Pricing Model” that suggested that a broad

portfolio of stocks could achieve a risk/return balance that was superior to individual stock-

picking.19

       The original formulators of the efficient markets hypothesis argued only for its relevance

to the U.S. stock market, but others were more willing to read into it more far-reaching

implications. 20 For example, many saw it as a justification for the increasingly dominant role of

Wall Street in allocating capital throughout the U.S. economy and the emergence of the hostile

takeover as an instrument capable of putting badly-managed assets in new hands. 21 As we will

see below, large, hierarchical firms managed by rational planners are something of a puzzle for

an economist that believes in the intrinsic superiority of markets. Wasn’t it natural, then, that a

“market for management” should sit atop all of these firms, using its invisible hand to force

managers to maximize shareholder value?22

       At the same time as the emerging markets hypothesis emerged among the Finance

professors, another group of Economists were beginning an imperial foray into territory

traditionally claimed by Political Science. They called their work “public choice theory.” The

public choice movement complemented the increasing trust in markets with increasing distrust in

government. For example, public choice theorists formulated a “collective action problem”

which gave concentrated minority interests a political advantage over the diffuse interests of the

majority. They also problematized the power relationship between legislators and bureaucrats,

debating whether legislators’ superior formal powers allowed them to control the bureaucracy, or

whether the bureaucracy’s superior access to information allowed it to have its way with the


       19
          Id. at 130.
       20
          Id. at 103-104. Later studies concluded that CAPM did not explain the data. Id. at 208.
       21
          Id. at 167.
       22
          Id. at 164.


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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


legislature.23 The public choice scholars argued that America’s founders had intentionally (and,

many thought, wisely) designed these problems and other hurdles into our political system as a

means of preserving a system of limited government that guaranteed individual liberty. In this

way, they gave policymakers a theory of “government failure” that counterbalanced the

traditional economic notion of “market failure.”

        These three strands of market-oriented thinking emerged from diverse areas of academia

and popular culture, but they add up to a coherent perspective on policymaking: namely, that

markets are unusually useful instruments whose performance often can’t be matched by

government. I call this school of thought “market romanticism.”24

C. Coase and using markets to solve market failure
        The idea of solving environmental problems with tradable property rights can be thought

of as the cross-pollination of this market romanticism with the more idiosyncratic work of

economist Ronald Coase. Before Coase wrote The Problem of Social Cost, 25 the conventional

economic wisdom suggested that “market failures” should be addressed with a “Pigovian tax.”

If a firm was polluting the air, the government should levy a tax on emissions that equaled the

per-unit cost of pollution on society. This would inspire the firm to cease polluting if the internal

benefit it derived from polluting was less than the external social cost. On the other hand, if the

external cost was lower than the firm’s benefit, the firm would continue polluting—a socially

optimal result.



        23
           Terry M. Moe, The positive theory of public bureaucracy in Dennis C. Mueller, PERSPECTIVES ON PUBLIC
CHOICE: A HANDBOOK (1997),     455, 460.
        24
           Joseph Stiglitz and others calls the movement “market fundamentalism.” Joseph Stiglitz,
GLOBALIZATION AND ITS DISCONTENTS 36 (2004). However, I find the reference to post-Enlightenment
Romanticism more apposite than Stiglitz’s reference to religion, both because of the way market romantics
emphasize the ability of the market’s unconscious (and therefore irrational) ordering process to transcend rational
human ordering and because of the way that they cast markets themselves, rather than individuals, in the role of
hero.
        25
           Ronald H. Coase, The Problem of Social Cost, Journal of Law and Economics (October 1960).


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


         Coase’s genius was to render mutable and manipulable the property rights that the

Pivogian taxers took for granted, and to thereby point out a different road to the optimal result.

Imagine that the law forbids pollution. The polluters can still buy the right to pollute from the

air-breathers by paying them to contractually relinquish their right to sue. If such transactions

are costless, polluting firms will buy pollution rights from consumers right up to the point where

consumers value clean air more highly than the polluters value the right to pollute. Now imagine

the law doesn’t forbid pollution. The air-breathers will pay for the polluters for promises to stop,

instead of the polluters paying the air-breathers, but the transactions between the two parties will

reach the same social optimal result. And in contrast to the Pivogian system, in which this result

can only be reached if the government correctly estimates the social cost of pollution, the

Coasean system works without the need for government intervention. Market allocation of

property rights does it all.

         Of course, Coase continued, this beautifully simple result only attains if transactions costs

are zero, an assumption that Coase considered “very unrealistic.”26 In reality, the cost of

contracting would chill the buying and selling of legal rights, implying that the right to pollute

will remain more or less where the law places it. From a judicial perspective, this means that

decisions about property rights should take into account the external as well as the internal costs

of a given allocation.27 From a regulatory perspective, it means that externality problems like

pollution will typically require government-implemented solutions like a Pigovian tax or

“command and control” management. For the government, Coase said, while “not itself

costless,” is nevertheless able to use rational management to transfer rights and factors of



         26
            Id. at 7.
         27
            This is a foundational insight of Law and Economics, a discipline that takes transactions costs more
seriously than Economics. See Richard A. Posner, ECONOMIC ANALYSIS OF LAW 24-25 (2003).


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


production frozen by high transactions costs. Such intervention, he pointed out, can “save a lot

of trouble”.28

        But in the prevailing climate of market romanticism, it was the first few pages of Coase’s

article that gained a purchase, not the subsequent transactions cost-focused pages. After all, if

the efficient markets hypothesis said that the stock market’s allocation of property rights in

corporations isn’t too handicapped by transactions costs, why not use a similar system to allocate

property rights in goods with environmental externalities?

D. The birth of cap and trade
        The first concrete explication of how a Cosean system might be put into practice as a

policy solution came in 1966 for air pollution29 and 1968 for water pollution.30 Basically, the

idea was that the public-sector agency responsible for organizing a pollution control system

would set a system-wide “cap” on emissions. It could then issue tradable emissions permits

(“allowances”) in a quantity equal to the overall cap, and distribute these permits to participating

entities. As I indicated already in the introduction, this gives each participating entity two

options for meeting their obligations under the program. The entity can (1) reduce its own

emissions by enough to match the permits it initially received from the government or (2)

purchase enough permits to cover its emissions. Firms that can reduce pollution cheaply do so,

and sell their allowances to firms who can’t. In the end, the burden of the system-wide cap is

divvied up in an efficient way—as in both the Smithian and Coasian model, the cap and trade

aligns firms’ incentive in maximizing profitability with the interest of society at large by

encouraging each firm to make socially-optimal decisions.



        28
            Coase, supra note 24, at 9.
        29
            T.D. Crocker, The Structuring of Atmospheric Pollution Control Systems, in H. Wolozin, The Economics
of Air Pollution, 61(1966).
         30
            J.H. Dales, POLLUTION, PROPERTY, AND PRICES (1968).


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        The EPA put the cap and trade idea into practice in the late 1970s in rulemakings

pursuant to the Clean Air Act.31 Subsequently, it went applied the tradable property-rights

approach to its implementation of the lead phase-out program in the mid 1980s and its

implementation of the international Montreal Protocol on the elimination of ozone-depleting

gasses in the late 1980s.32 The first legislative recognition of cap and trade came with

Congress’s 1990 acid rain amendment to the Clean Air Act. The EPA’s implementation of this

section created the most ambitious cap and trade system yet, one that included an auction market

run by a commodities exchange and that allowed speculators and environmental groups to

purchase and “retire” credits.33

        These early cap and trade programs did not have offset programs comparable to those

used by carbon cap and trade programs, but they did develop the concepts that would later

evolve into carbon offsetting as currently understood.34 For example, the name “offset” may

come from The EPA’s 1976 “offset rule,” which allowed new sources of air pollution in

“nonattainment areas” to emit pollutants if those emissions were “offset” by a voluntary

reduction in emissions from another source in the nonattainment area.35 This form of

“offsetting” was actually the earliest form of allowance trading, but before the emergence of a

broad liquid market in emissions reductions, regulated entities tended to think of offsetting as a

way to tie the shutdown of one project to its replacement by a new project (often, the same

corporation owned both projects). After later rulemakings and Act replaced project based

transactions with a liquid allowance trading market, this sort of activity became known as



        31
           T.H. Tietenberg, EMISSIONS TRADING: PRINCIPLES AND PRACTICE 5-7 (2d. Ed. 2006).
        32
           Id. at 8-10.
        33
           Id. at 11-12.
        34
           Mark C. Trexler, Forestry as a Global Warming Mitigation Strategy: An Analysis of the Guatemala
Carbon Sequestration Forestry Project
        35
           T.H. Tietenberg, EMISSIONS TRADING: PRINCIPLES AND PRACTICE 5-7 (2d. Ed. 2006).


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


“emissions trading” rather than “offsetting.”. Over the next decade, several international

voluntary forest projects aimed at funding projects that created carbon sinks also came to be

associated with the “offset” label.. For example, Mark Trexler suggests that a 1989 AES-funded

forestry project in Guatemala was the first offset project. 36 Similar projects continued through

the development of the CDM and came to form the core of what we now typically describe as the

voluntary carbon market.

        Another important predecessor to the CDM is the Montreal Protocol on ozone

compensated reductions in developing countries with payouts from a multilateral fund.

Although this Protocol employed a fund-based system rather than an offset mechanism, the fund

served to shift some of the financial burden for the mitigation of ozone-depleting emissions from

developing nations to developed nations, as the CDM would later aim to shift the financial

burden of GHG mitigation from developing to developed nations.

        The early U.S. experiments with cap and trade “worked” in the sense of observably

improving air quality in the U.S.37 They have also probably worked in the sense of making this

improvement less costly than it would have been under an alternative policy design. Empirical

studies of various tradable property rights system have found cost savings of between 6 and 96%

over a command-and-control approach.38




        36
            Mark C. Trexler, et al A Statistically-Driven Approach to Offset-Based GHG Additionality
Determinations: What Can We Learn, 6 SUSTAINABLE DEV. L. & POL'Y 31 (2005-2006).
         37
            Id. at 72.
         38
            Id. at 58-59,72. However, many of the most complete studies are ex-ante simulations based on
incomplete information, and ex post studies tend to be dogged by the difficulty of estimating what the cost of
compliance would have been under the counterfactual command and control approach to which the actual system
must be compared. Robert N. Stavins, What Can We Learn from the Grand Policy Experiment? Lessons from SO2
Allowance Trading, 12 JOURNAL OF ECONOMIC PERSPECTIVES, 69, 81 (Summer, 1998) (“tradable permits will work
best when transactions costs are low, and the SO2 experiment shows that if properly designed, private markets will
render transactions costs minimal.”)


                                                        14
                   Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


E. Carbon Offsets
        The perceived success of cap and trade in the U.S. brought market-focused ideas at the

forefront of as policymakers began to address the greenhouse gas problem. At the Kyoto

meeting in 1998, the U.S. advocated non-binding targets and the use of a tradable allowances to

reduce compliance caps. Europe wanted binding targets and was suspicious of trading. The

Kyoto cap and trade system was an Al Gore-brokered compromise under which the U.S. agreed

to binding targets and Europe agreed to emissions trading.39

        The negotiators appended offsetting to this system at the 11th hour, leading at least one

commentator to dub the CDM the “Kyoto Surprise.”40 In the run-up to the negotiations, Brazil

had proposed a “Clean Development Fund” that would use non-compliance penalties imposed on

developed nations to finance clean development in the developing world. The G-77 group of

developing nations signed on to the proposal at the Kyoto negotiations, making it clear that the

treaty would need to include some form of development finance in order to attract worldwide

support. Under U.S. influence, Brazil’s fund-based vision for how such transfers would take

place involved into a private-sector led tradable property rights “mechanism.” As it had been

wary of intra-developed world allowance trading, Europe was also wary of this new market-

based proposal, preferring to maintain the publicly-funded Global Environmental Facility as the

primary means of fund transfer between developed and developing parties. However, it

eventually signed on when the U.S. made market-based flexibility the quid pro quo for its

acceptance of binding targets, Europe’s primary goal. Carbon offsetting as currently understood

was born in Article 12 of the Kyoto treaty.



        39
             David M. Driesen, Sustainable Development and Market Liberalism’s Shotgun Wedding, 83 Ind. L. J. 21,
34.
        40
            Jacob Werksman, Unwrapping the Kyoto Surprise, 7 REV. OF EUROPEAN COMM. AND INT. L. 147
(1998), http://www3.interscience.wiley.com/journal/119130992/abstract?CRETRY=1&SRETRY=0


                                                        15
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


        The Kyoto text was vague enough to admit a number of different structural options for

the CDM—it said “mechanism” instead of “fund,” and explicitly mentioned private-sector

“Designated Operational Entities” (see below), but did not make explicit the key structural

details of the present day system, such as private-sector initiated projects. Indeed, the debate on

the elaboration of the CDM idea in the international meetings that followed Kyoto presaged the

public sector vs. private sector arguments that are the subject of this paper. For example, a

contemporary observer wrote that the debate could be characterized as “pitting a market-based

approach, against an ‘interventionist approach’ based on traditional public sector development

assistance.”41    It was not until the Marrakech meeting in 2001 that the parties to Kyoto

elaborated the private sector-led system, setting out the relative roles of project developers,

investors, the Executive Board, and the Designated Operational Entities (see below for more

detail on this system).

        Tradable property rights approaches also won the day in the biggest national

implementations of the Kyoto treaty,42 even after the U.S.’s decision not to ratify Kyoto left the

Protocol without tradable property rights’ biggest advocate. Europe implemented regional cap

and trade system binding at the firm level—the European Union Emissions Trading System (EU-

ETS). Australia, a late adopter of the Kyoto protocol, is also in the process of designing a

national cap and trade system. And most significant U.S. state-level climate change efforts (New

England’s RGGI and California’s AB 32) are also cap and trade systems, as is the leading

proposal for U.S. climate change legislation (the American Clean Energy and Security (“ACES”)



        41
           Id.
        42
           Kyoto targets are binding on national governments, and Kyoto allowance trading was designed to operate
between nations, not between firms or individuals. Thus national governments are responsible for allocating
emissions reductions to firms and or individuals, and they can do so in whatever way they prefer. Conceivably, one
nation could choose a direct command-and-control allocation system and another nation could choose a national
“cap and trade” system that would sit within Kyoto’s international cap and trade system.


                                                       16
               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


or “Waxman-Markey” bill).       While the details of some of these systems are still under

development, all of them contemplate a role for carbon offsets.


                           II. OFFSETTING THEORY AND PRACTICE
       In the preceding Part, I argued that cap and trade was inspired by insight that it might be

possible for trading to shift emissions reductions to the party that can bear them most efficiently,

and that carbon offsetting can be thought of as a natural expansion of the efficiency-maximizing

tradable property rights framework into the capped/un-capped world of the Kyoto protocol,

where developed countries are expected to take some financial responsibility for emissions

reductions that belong geographically to the developing world. Since we already have

allowances changing hands inside the system, it might sense that outside-the-system reductions

should enter the system in the same, tradable form.

       Yet offsetting involves much more than the shifting of emissions reductions. Given the

numerous transactions, legal requirements, and parties it involves, offsetting is better thought of

as a process of creation than a process of trade. Therefore, whatever the realism of the no

transactions costs assumption for allowance trading, the complexity of the offsetting process

suggests that this assumption does not hold for offsetting. Might tradable property rights, then,

be a good solution for allowance shifting but not for offset creation? I explore this possibility in

more detail below by describing the practice of offsetting in the largest extant offset system—

Kyoto’s Clean Development Mechanism.




                                                  17
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


A. The Goals of CDM Offsetting
        Offsetting is typically assumed to serve two purposes.43 First, it moderates the costs of

cap and trade compliance.44 Because the cost of emissions reductions in developing countries

are lower than the cost of emissions reductions in developed countries, offsets tend to be cheaper

than allowances. Thus, if the marginal cost of compliance within the cap and trade system (i.e.

allowance prices) climbs too high, participants can source emissions reductions from outside the

system (offsets) at a lower cost.45 Second, offsetting stimulates emissions-reducing investments

in geographic areas or industries that would otherwise be beyond the reach of the cap and trade

system. Because of the fundamentally international nature of the global warming problem, the

low cost of building new “clean” infrastructure in the developing world relative to the cost of

retrofitting “dirty” infrastructure, large demand for capital by developing countries, and the

unwillingness of developing nations to commit to mandatory reductions, offsetting is a more

attractive way to achieve both of these goals in the greenhouse gas context than in other contexts.

B. CDM Procedures & Substantive Standard
        As described above, all extant GHG cap and trade systems allow offsetting. In practice,

however, most current offsetting is conducted via the Kyoto Protocol’s Clean Development

Mechanism (CDM).46 The CDM certifies 92% of all offsets.47 Most of the remaining 8% are

“voluntary offsets” sold to firms and individuals whose emissions are not legally constrained, but

who have decided to reduce emissions voluntarily. Even many of these voluntary offsets,


        43
             See, e.g., Kyoto Protocol Article 12(5) (specifying that the goals of the CDM are to ‘‘assist Parties
included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments,
and (2) ‘‘assist Parties not included in Annex I in achieving sustainable development and in contributing to the
ultimate objective of the Convention?’’
          44
             WILLIAM WHITESELL & STACEY DAVIS, THE CTR FOR CLEAN AIR POLICY, COST-CONTAINMENT IN CAP-
AND-TRADE SYSTEMS: A REVIEW OF THE OPTIONS 4 (2008),
http://www.ccap.org/docs/resources/542/Cost%20Containment%202008%20(2).pdf.
          45
             Id., at 5.
          46
             Capoor & Ambrosi 2008, supra note 3, at 1.
          47
             Id.


                                                        18
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


however, are certified by procedures that track those of the CDM, making the CDM’s

substantive rules and procedures the de facto world offsetting standard.48 The dominance of the

CDM might continue even after a U.S. climate change bill passes. Waxman-Markey would

allow offsets to be certified either through the extant CDM system (or its successor)49 or through

a new U.S.-administered system that appears to contemplate procedures and substantive

standards similar to those of the CDM.50 Indeed, given that existing carbon market firms have

developed expertise in the CDM system and are likely to play a role in negotiating the details of

any future offsetting system, the CDM’s basic contours and the concepts it developed are likely

to survive even if the CDM itself does not.

1. CDM Procedures
      The process of creating a CDM offset can be described as a seven-step process:

    1. Project Design Document (PDD). The project developer and its consultants complete a
       project design document describing the project. The document uses an approved
       methodology to measure the emissions reductions from the project, present evidence that
       the project is additional, and fulfill other requirements established by the CDM Executive
       Board.
    2. Designated National Authority (DNA) Letter of Approval. The project design document
       is approved by the governmental entity in the host country responsible for ensuring that
       CDM projects conform to national development goals.
    3. Designated Operational Entity (DOE) Validation. The project’s application of baseline
       measurement methodologies and additionality assessment is validated by one of 45 UN-
       chartered ‘‘Designated Operational Entities.’’51 Some DOEs for-profit businesses, while

        48
             See KATHERINE HAMILTON ET AL., ECOSYSTEM MARKETPLACE, STATE OF THE VOLUNTARY CARBON
MARKETS 2007 (2007),
http://ecosystemmarketplace.com/documents/acrobat/StateoftheVoluntaryCarbonMarket18July_Final.pdf.
Voluntary offsets purchases are small compared to offset purchases for Kyoto compliance. Voluntary credits are
typically purchased by U.S. firms and European firms in un-capped industries, with a small percentage purchased by
individuals, particularly for the offset of emissions associated with air travel.
          49
             § 728 and § 743(d)(1) gives the EPA discretion to make rules allowing the use of emissions allowances
and offsets from qualifying international programs.
          50
             The EPA is to promulgate detailed offset requirements in conjunctions with an “Offsets Integrity
Advisory Board.” § 731. These rules must ensure that offsets represent emissions that are “additional and
verifiable” and measured by reference to additionality and baseline methodologies to be established by the EPA. §
732(b); 734. Offset developers are to submit petitions to the EPA, which approves them if they apply with its
requirements. § 735-737. A separate certification track, also administered by the EPA, would allow the use of
credits from sector-wide and avoided deforestation (REDD) activities in developing countries, something not yet
available under the CDM. § 743
          51
             See CDM: List of DOEs, http://cdm.unfccc.int/DOE/list.


                                                       19
                   Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


         others are non-profits or governmental organizations; the largest are Scandinavian
         consulting firms.
    4.   Registration by the CDM Executive Board (EB). The Executive Board of the CDM
         certifies the DOE’s validation and registers the project. If the Executive Board doubts the
         DOE’s conclusion, it may request review, and, if it disagrees with the conclusions of the
         DOE upon review, reject the project. Currently, the EB ends up rejecting about 5% of
         the projects recommended for registration by the DOEs.52
    5.   Monitoring. After the project is built, the project developer may begin measuring the
         actual emissions reductions it achieves by implementing the monitoring plan set out in
         the project design document.
    6.   Verification/certification. On a periodic basis, the project submits a monitoring report to
         the DOE. The report is verified by the DOE, which certifies the credits and makes an
         issuance report to the EB.
    7.   Issuance of CERs. The EB typically issues CERs within 15 days of the receipt of the
         DOE’s certification report. However, as at the project certification stage, the EB can put
         issuance under review if it is not satisfied with the report.

2. CDM Substantive Standards
      The DOEs and Executive Board base their review of a project’s documentation on

substantive criteria established in Article 12.2 of the Kyoto Agreement:

      (a) Voluntary participation approved by each Party involved;
      (b) Real, measurable, and long-term benefits related to the mitigation of climate
      change; and
      (c) Reductions in emissions that are additional to any that would occur in the
      absence of the certified project activity.53
The 2001 Marrakesh Accords provided some limited additional “legislative” interpretation of

these criteria,54 but their construction has largely fallen to the CDM’s Executive Board, the

agency tasked with overseeing the CDM. It has done so by promulgating “methodologies.”

Each methodology is a 20- to 100-page document of rules, procedures, and quantitative

algorithms that apply to a specific class of project.55 Most of these methodologies are detailed

and industry-specific. For example, a refinery facility applying for offset credit for capture of

         52
              CDM pipeline, supra note 2.
         53
              Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 32
I.L.M. 22.
         54
            For example, “[a] CDM project activity is additional if anthropogenic emissions of greenhouse gases by
sources are reduced below those that would have occurred in the absence of the registered CDM project activity,”
UNFCCC, Report on the Conference of the Parties on its Seventh Session, held at Marrakech from 29 October to 10
November 2001, FCCC/CP/2002/13, at ¶ 43.
         55
            The list of methodologies is available at UNFCCC, Approved Baseline and Monitoring Methodologies,
http://cdm.unfccc.int/methodologies/PAmethodologies/approved.html.


                                                        20
                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


waste gas would need to apply methodology #AM0055, “Baseline and Monitoring Methodology

for the recovery and utilization of waste gas in refinery facilities.”56 This methodology requires

the facility to set the baseline against which its emissions reductions will be measured as the

lower of two calculated values: the “[h]istoric annual average amount of waste gas sent to the

flares during the last three years before the project implementation minus amount of waste gas

released due to emergencies or shutdown and amount of waste gas required to maintain the pilot

flame” and the “[s]ystem recovery capacity (Nm3/hr) multiplied by number of operating hours of

waste gas recovery system in year y (CAP 1).”57 If the project is registered, the facility will

measure actual waste gas emissions on a yearly basis and subtract the baseline value calculated

using the algorithm above, which represents what would have happened under “business as

usual” but for the CDM incentive. The resulting figure will be the amount of offset credit the

facility is entitled to receive from the CDM in the measured year.

         In addition to the substantive requirements established by the baseline methodology, the

CDM requires projects to show that their project is “additional” to the projects that would have

been undertaken in the absence of the CDM.58 For if a project would have been implemented

anyway even but for the CDM incentive, its purported “reductions” are not actual reductions, but

merely “business as usual,” and should not be used to offset non-compliance with cap and trade

obligations.




         56
             UNFCCC, Baseline and Monitoring Methodology for the recovery and utilization of waste gas in
refinery facilities
http://cdm.unfccc.int/UserManagement/FileStorage/8AYSHE6ZDLG2PML0V4QVK2U1MXVG9K
          57
             Id., at 7.
          58
             Theoretically, a project is additional if its baseline calculation yields a value that is less than actual
emissions. However, as is evident from the description of the calculation above, baseline estimation often
scrutinizes scientific or technical data, not the business and legal motivations that are the focus of the additionality
requirement. The CDM imposes a distinct “additionality” test in order to examine these motivations.


                                                           21
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


        The CDM’s additionality requirement has several prongs,59 but at its heart is the

implementation of either an “investment test” or a “barriers test.”60 Under the investment test,

developers may submit financial profitability evidence showing that the project’s return on

investment would be too low (given its risk) to attract financing without the CDM revenue

stream. For example, a windmill project would need to show that profits from electricity sales

alone would not justify the project. If it is permitted to prove additionality with the barriers test

alternative, the project instead need only show that it faces costly barriers to implementation, a

task that is typically assumed to be easier than making an investment-test showing.61 For

example, the windmill project might show that the national regulatory framework makes it

difficult for independent power producers to obtain financing and compete with traditional

generation facilities.

C. The Structure of the CDM Marketplace
        The CDM, of course, is not just a clever public policy idea or a set of legal standards, but

also a $35 billion industry.62 Projects, regulators, and buyers are not the only participants in this

industry—there is also a complex “business ecosystem” of brokers, investment banks,

speculators specialist software providers,63 rating agencies,64 consultants, lobbyists, regulators,




        59
            Other prongs include a “common practice test” requiring applicants to show that the practice or
technology they propose to implement is not already common practice in their industry, a “timing test” that requires
applicants to show that the CDM incentive was seriously considered in the project decisionmaking process, and a
government incentive test that requires applicants to show that it does not already have a legal duty under national
law to implement the project. For a discussion of the most common additionality tests, see Mark Trexler, Derik
Broekhoff, Laura H Kosloff, A statistically-driven approach to offset-based GHG additionality determination: what
can we learn? 6 SUSTAINABLE DEV. L. & POL’Y 30 (2006).
         60
            See LAMBERT SCHNEIDER, WORLD WILDLIFE FEDERATION, IS THE CDM FULFILLING ITS ENVIRONMENTAL
AND SUSTAINABLE DEVELOPMENT PRIORITIES? (2007), http://www.oeko.de/oekodoc/622/2007-162-en.pdf
         61
            Id.
         62
            Capoor & Ambrosi 2008, supra note 3, at 1.
         63
            See APX Launches New Communications Standards with APX Project Track™,
http://www.apx.com/news/pr-APX-Launches-New-Communications-Standards-with-APX-Project-Track.asp
         64
            Newspaper article on 2008 launch of rating agency.


                                                        22
               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


trade journalists, and other entities. Figure 1 offers a framework for understanding the roles the

most important of these entities play in keeping the offsetting system going.

       As shown in the figure, each offset project involves three distinct streams of transactions.

First, there is the financing transaction. Imagine a proposed windmill project in a non-Annex I

nation. The project developers must compare the projects costs—purchase price of turbines,

obtaining a site lease, negotiating a construction contract, paying taxes on revenue, and so on—

against the expected revenue that they can obtain from the sale of power. They take these

estimates to financiers like banks and venture capitalists; if the return is attractive enough to suit

the equity investors, and the risk low enough to suit the debtholders, they will finance the

project.




       Figure 1: Carbon Market Roles In the Context of an Offset Project’s 3 Transactions

       Of course, only unviable (“additional”) projects where the return is not attractive enough

are entitled to offset credit; as a result, offset project developers turn to the CDM registration

process in order to obtain offset revenue. Few developers have the in-house resources to

navigate the stream of approval transactions themselves. Typically, therefore, the project will

hire a consultant that specializes in CDM approval to apply the CDM methodologies. As



                                                  23
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


discussed above, the consultants submit their work to two regulatory organizations: the host-

government Designated National Authority (DNA) and the international Designated Operational

Entity (DOE). The UNFCCC’s Executive Board (EB) is the ultimate approval authority, and acts

on the recommendations of the DNA sand DOEs.

        After they complete the project approval transactions, project developers still need to get

their credits to market, and this requires transactions with a number of other supporting players.

At a minimum, the project needs a broker to place the credits on an exchange, just as you do

when you sell a stock. However, in order to attract loans (and thereby “leverage” the equity

investment in their project), project developers typically seek to sell the credits they expect to

receive over the lifetime of the project all at once through a forward contract, rather than selling

them as they receive them on a spot market.65 This means that the projects typically need a more

full-service intermediary, one that can structure a bespoke “over the counter” transaction

between buyer and seller. This intermediary helps the parties negotiate an “Emissions

Reductions Purchase Agreement” that sets price and delivery terms and allocates risk several

dimensions of risk,66 a task that implicates another category of supporting player: lawyers.

        Moreover, in many cases neither the project developer nor the capped Annex I firms who

need carbon offsets for compliance want to assume the risk of project failure, the risk of lower-

than expected emissions reductions, or the risk of regulatory changes that vitiate the value of the

offsets.67 Therefore, aggregators often step into the transaction between the buyer and seller in

order to assume these risks. Specifically, aggregators purchase relatively risky carbon offsets

        65
            However, some projects do choose to expose themselves to market risk by receiving credits as they are
issued by the Executive Board and then selling them on the spot market.
         66
            See, e.g. International Emissions Trading Association, Emissions Reductions Purchase Agreement,
http://www.ieta.org/ieta/www/pages/getfile.php?docID=1793.
         67
            Karan Cappoor and Phillipe Ambrosi, STATE AND TRENDS OF THE CARBON MARKET 2007 34 (May
2007), http://www.ieta.org/ieta/www/pages/getfile.php?docID=2281; see also Christopher Carr and Flavio
Rosenbuj, The World Bank’s Experience in Contracting for Emissions Reductions 2 Env. Liability 114 (2007)
http://wbcarbonfinance.org/docs/Banks_experience_in_contracting_emission_reductions.pdf.


                                                        24
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


under a forward contract and pool them into a portfolio that contains credit from offset projects

in other locations or other technology classes. Because this pooling reduces the variability of

their expected credit “harvest,” the aggregators feel comfortable guaranteeing future delivery of

credits to end buyers; they make their money on the price differential between these guaranteed

credits (a species of financial derivative) and the relatively risky “primary” credits they buy from

project developers.68 As in other complex financial markets, there is a demand by financial

firms’ contract counterparties and shareholders for independent estimates of the risks of these

securities, which means that “carbon ratings agencies” have emerged to play the role that

Moody’s or Standard and Poor’s plays in the traditional financial system. Finally, while the core

demand for carbon offsets comes from compliance buyers, there is no limitation on market

speculation. This means that carbon credits and derivatives may pass through the hands of

several speculators who hold the credits on their balance sheet in anticipation of a price increase

(or, in the case of some derivatives, a price decrease) before re-selling them.

         Both Figure 1 and the preceding paragraphs portray the financing, project approval, and

credit sale transactions as though each role were undertaken by a different firm. But this was an

oversimplification, for multiple roles can be combined within a single firm. For example, as

shown in Figure 2, some firms combine intermediation, aggregation, and consulting services in

order to become something of a “one stop shop” for projects seeking to access the CDM.

Ecosecurities LLC, one of the largest private-sector carbon market participants, appears to




         68
            In fact, in some cases, aggregators add another layer of financial engineering to these risk pools by
offering buyers a menu of “tranched” securities with diverse risk/return signatures. This type of innovation has been
limited to date, but Commodities Future Trading Commissioner Bart Chilton has predicted that if the U.S. passes
cap and trade legislation, carbon derivatives could become “the biggest of any derivatives product in the next four to
five years.” Michelle Chan, Subprime Carbon: Re-thinking the World’s Largest New Derivatives Market, Friends
of the Earth (2009), at 2, available at http://www.foe.org/pdf/SubprimeCarbonReport.pdf.


                                                         25
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


operate this on this model.69 So do the World-Bank managed “prototype” carbon funds that

national governments used to help jump start CDM investment.




                      Figure 2: “One stop shop” private professional services firm model

         Another pattern of integration may be employed by large compliance buyers who are

willing to take on much of the intermediation work themselves. (See Figure 3). Typically these

buyers are utilities or government agencies who have themselves taken on responsibility for

meeting their nation’s Kyoto targets. Because of their large size or their public mission, they

may be more willing than other compliance buyers to undertake the market-making work and

expose themselves to default and price risk.




         69
           See Ecosecurities website, http://www.ecosecurities.com/; McNish, supra note 9, at 5465 (some
consultants in CDM bagasse electricity subsector are also large “buyers” of credits from bagasse electricity
projects).


                                                         26
                Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010




                                 Figure 3: Large, active offset buyer model.

        Of course, it is possible to imagine a number of other combinations of carbon market

roles. For a project whose carbon market revenue is a large share of total revenue, it might

make sense for an intermediary firm to put up the capital for the physical project itself, thereby

becoming financier as well as intermediary. At the extreme, an intermediary could even decide

to own the project itself. Indeed, the total number of possible combinations of the 6 wholly non-

public roles depicted in Figures 1-3 is 720.

D. How Much Does it Cost Projects and Developers to Use the CDM System?
        Therefore, as Robert Stavins’s predicted even before offsetting was widely used,

transactions costs “are more likely to be significant in an offsets market [than in allowance

markets].”70 In this section, I attempt to estimate exactly how much more significant they are by

examining several empirical estimates of transactions costs within the CDM. I argue that there is

reason to believe that most existing estimates fail to take into account some of the most

important costs. A more comprehensive methodology might reveal that over 30% of all the


        70
           Robert N. Stavins, Transactions Costs and Tradeable Permits, 29 JOURNAL OF ENVIRONMENTAL
ECONOMICS AND MANAGEMENT 133 (1995); see also Barry D. Solomon, New directions in emissions trading: the
potential contribution of new institutional economics, 30 ECOLOGICAL ECONOMICS 371, 383 (1999).


                                                   27
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


money spent by offset investors dissipates in the transactions described above, and never reaches

the projects themselves.

1. Existing Estimates of CDM Efficiency
        The results of the existing studies of CDM transactions costs vary widely (see Table 1).

Based on a study of two early, experimental CDM investment funds—one managed by the

government of Sweden and the other managed by the World Bank—Axel Michaelowa and Frank

Jotzko estimate that transactions costs in the CDM amount to about € 1.22 per tCO2e. 71 At the

low carbon prices prevailing at the time of their study, this meant that transaction costs would

siphon 33% of total CDM investment;72 at the current price of about € 10, they would amount to

a more reasonable, but still significant, 12% of total investment.             A study of 26 voluntary-

market offset projects conducted two years later by the Lawrence Berkeley National Laboratory

reached a more optimistic conclusion, estimating an average transactions cost of just € 0.56 per

tCO2.73 A similar study of seven projects in India came up with an even lower number: € 0.02 -

€ 0.39 per tCO2.74 But a more recent close examination of a single proposed small project in

Ghana led to an estimate an order of magnitude higher: €6 - €16 per tCO2.75




         71
             Axel Michaelowa and Frank Jotzko, Transactions Costs, Institutional Rigidities, and the Size of the CDM
Mechanism, 33 ENERGY POLICY 511, 519, 521 (2005).
          72
             Id. A study of a similar Finnish pilot program conducted around the same time reached a slightly lower
estimate. Hannah Mari Ahonen and Kari Hamekoski, Transactions Costs under the Finnish CDM/JI Pilot
Programme, available at http://www.mm.helsinki.fi/mmtal/abs/DP12.pdf.
          73
             Camille Antinori and Jayant Sathaye, Assessing Transaction Costs of Project-based Greenhouse Gas
Emissions Trading, Lawerence Berkeley National Lab, 31 (2007), available at
http://are.berkeley.edu/~antinori/LBNL-57315.pdf. The study also found that transaction costs did not vary with
project size, such that small projects had an average transactions cost of € 1.96 per tCO2, while large projects had
costs of only € 0.35 per tCO2.
          74
             Mattias Krey, Transaction costs of unilateral CDM projects in India–results from an empirical survey, 33
Energy Policy 2385, 2391 (2004).
          75
             Bruce Chadwick, Transaction Costs and the Clean Development Mechanism, Natural Resources Forum
(2006), discussion copy available at http://www.bruce.chadwick.org/Assets/Chadwick-CDMdocV2.1d.pdf.


                                                         28
                                                    Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010
                                                       Table 1: Estimates of Transactions Costs for Carbon Offsetting

   Category                                  Description                          Swedish Pilot      World Bank       Finnish Pilot      LBNL        Krey (n=7)80      Chadwick
                                                                                    (n=51)76         Pilot (n=4)77       (n=6)78        (n=26) 79                       (n=1) 81
Search              Cost of finding potential project partners (including         €15,000                             €3,000-         $0.27 / tCO2   $0.005-          $40,000
                    consultant, DOE, and credit buyer); cost of developing                                            €17,000                        $0.09 / tCO2
                    preliminary proposal.
Negotiation         Contract of negotiation between project partners.             €25,000-€        €250,000           €3,000-         $0.18 / tCO2   $0.002-
                                                                                  400,000                             €15,000                        $0.04 / tCO2
Project             Consultant's fee for estimating emissions reductions and      €35,000          €75,000            €3,000-         $0.30 / tCO2   $0.004-          $35,000-
Documentation       developing other required project documents.                                                      €15,000                        $0.13 / tCO2     $200,000
DNA Approval        Cost of achieving DNA approval.                               €40,000          €75,000                                                            $5,000
Validation          Fee paid to DOE validator.                                    €15,000-         €30,000            €3,000-         $0.03 / tCO2   $0.003-          $40,000
                                                                                  €30,000                             €14,000                        $0.08 / tCO2
Registration        Registration fee used by Executive Board to fund its          €10,000                             €1,0000-                       $0.006-          $10,000
                    regulatory activities.                                                                            €7,000                         $0.04 / tCO2
Monitoring          Cost of implementing monitoring methodology.                  €10,000                             n/a
Verification        DOE's fee for verifying yearly project emissions claims.      €8,000 / yr                         €3,000-
                                                                                                                      €18,000
Certification       Cost of Executive Board certification of yearly crediting.    n/a                                 €1,000-                                         $8,000 / yr
                                                                                                                      €8,000
Enforcement         Cost of ensuring contract performance.                        n/a                                 €1,000-
                                                                                                                      €8,000
Transfer            Brokerage costs for credit transfer; fees/taxes levied by     1%
                    regulators to fund market oversight operations.
Registry            Fee for holding account in national registry                  0.03%
Aggregation         Cost of pooling risky credits to create less risky credits.                                                       $0.08 / tCO2
                                                                                                                                      ("ins. costs")
                                 Final Estimate                                              € 1.22 / tCO2              € 0.60 / t    € 0.56 per t    € 0.02 - €      € 6 - € 16 /
                                                                                                                        CO2           CO2             0.39 / t CO2    tCO2
                                   Data Notes                                     Costs tracked by public CDM investment fund         Survey responses by project     Academic’s
                                                                                  interacting directly with projects as both          developers, private sector      estimates for
                                                                                  consultant and final buyer, without the use of      consultants, and public         1 cookstove
                                                                                  separate intermediation or aggregation services.    sector funds.                   project.


           76
              Michaelowa and Jotzo, supra note 68.
           77
              Id.
           78
              Transactions Costs under the Finnish CDM/JI Pilot Programme, supra note 69.
           79
              Antinori and Sathaye, supra note 70. Figures are converted from dollars to euro at November 2009 exchange rate.
           80
              Krey, supra note 71. I have subtracted the adaptation tax portion of the estimate and converted from dollars to euros at November 2009 exchange rate.
           81
              Chadwick, supra note 72. The high value includes development of a new methodology; the low value does not.
                                                                                            29
               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


       These estimates are problematic for at least five reasons. First, the wide variation in the

categories of transactions costs reported suggest that at least some of the studies leave out

relevant categories. For example, several studies do not report the costs of Designated National

Authority certification. All but one neglects to report any form of transaction cost related to the

credit sale itself. And since all of the studies were conducted with projects that are not yet

complete, none of them report figures that represent the actual costs of ongoing monitoring of

emissions and verification of emissions reductions claims.

       Second, there is reason to believe that no study quantifies the transactions costs of all the

parties involved. The Swedish data appears to report the costs borne by the offset purchasing

fund itself, but not the costs borne by the projects from which they purchased the credits.

Moreover, with the exception of the Chadwick study, all of the studies focus on projects that

were actually submitted to the CDM, leaving out data from projects that considered submitting

applications but were dissuaded from doing so by high transactions cots. From the perspective

of a proposed project, this introduces a “survivorship bias” into the data that likely skews the

transactions costs estimates downward.

       Third, all of the studies involve very early CDM projects. This could bias the data in

either direction. On the one hand, early transactions costs may be higher than they are currently

because the organizations involved were spending extra time learning how to conduct their work

and developing efficient processes. On the other hand, the earliest projects may have received

discounts from consultants and intermediaries seeking to expand their market share.

       Fourth, much of the otherwise most-reliable data—especially that reported in the Swedish

and Finnish pilot studies—describe CDM transaction structures that are not typical of the market

as a whole. These early government-run purchasing initiatives searched out projects on their




                                                  30
                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


own, helped the projects estimate expected emissions reductions and compile the other required

documentation, and bought the credits themselves, assuming the risk of variable credit yields.82

As I described above, this work that is more typically split between buyers and one or more

different private-sector intermediaries.

           Fifth, none of the studies make an effort to construct a sample composed of project types

and sizes that are representative of the offsetting market as a whole. This problem is particularly

important for the LBNL study, which is mostly composed of voluntary market offset projects

rather than CDM projects. Forty-three percent of the projects in the LBNL data set are forestry

projects, despite the fact that forestry project currently account for only a small fraction of total

offsets.

2. Towards a better understanding of transactions costs
       The present paper has no original research to add to the CDM transactions cost literature.

However, my review of the existing transactions costs estimates supports three suggestions for

future estimates.

           First, “transaction costs” should be defined with reference to the task at hand. Estimating

the level of “transaction cost” at which a project of a given size becomes unviable requires one

definition of the relevant “transactions costs;” choosing between two alternative offset system

designs requires another. Uncritically adopting the general definition of an Economic authority–

two leading contenders are Oliver Williamson’s “the costs of negotiating, writing, monitoring

and enforcing a contract”83 and Kenneth Arrow’s “costs of running an economic system”84—

makes little sense unless it helps answer the questions posed by the study.


           82
            See Christopher Carr and Flavio Rosenbuj, The World Bank’s Experience in Contracting for Emissions
Reductions, 2 ENV. LIABILITY 114 (2007)
http://wbcarbonfinance.org/docs/Banks_experience_in_contracting_emission_reductions.pdf.
         83
            Chadwick, supra note 72, at 16.
         84
            Krey, supra note 71.


                                                      31
               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


       Second, the categories of costs that fall within the scope of this definition should be

guided by the structure of the carbon offsets market. A good definition of transactions costs

would map to the offsetting process itself, allowing us to see which costs are incurred by whom

at what point in the process. Figures 1-3 and the accompanying description provide a jumping

off point for this challenge.

       Third, transaction cost categories should reflect a preference for observable costs, like

fees specified in contracts and price spreads between primary and secondary credits, over costs

that are non-observably “internal” to a firm or transaction. For example, the existing transactions

costs studies estimate project costs by surveying their consultants to determine how much time

and money they expend on each task. However, elementary economic reasoning suggests that

the fee charged by a consultant will, at the margin, embody all of the costs that the consultant

incurs in performing its work on behalf of the project as well as its payments for taxes, payments

on loans used to finance its operation, and the return on its equity. If the total cost of using the

CDM system is the question of interest (as distinct from the distribution of that cost among

various tasks internal to the firm), these additional components are transactions costs and should

be included in the estimate. In that case, observing the total fee will result in a more complete

estimate than survey responses. It will also be more reliable and easier to collect.


3. Quantifying the efficiency problem
      Applying these principles to the available data allows us to generate a different estimate

of transaction costs, albeit not a very confidence-inspiring one. For the purposes of this paper,

we are interested in comparing the efficiency of mechanism-based offsetting to the efficiency of

an alternative model. “Transactions costs” should therefore be defined to encompass the total

share of offset investment that goes toward effecting the transfer of funding from the final




                                                  32
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


compliance buyer to the project itself. All such costs should be included, irrespective of the

party that “pays” and irrespective of whether the costs are pecuniary or non-pecuniary. With this

in mind, I offer Table 2 as a list of transaction cost categories that map to the structure of the

offset market in a categorically exhaustive, mutually exclusive way.

        As is clear from the magnitudes in Table 2, this approach to transaction costs unearths

some costs that do not appear in the traditional estimates. Far and away the most important

single cost category is the spread between the price intermediaries pay and the price paid by the

final compliance buyer—i.e. the cost of passing credit through the carbon market’s financial

infrastructure. An Annex 1 offset buyer who wants a guaranteed stream of offset credits pays €

10 for the credit, and the non-Annex 1 offset sellers receives only € 7. (Another €0.50 goes to

cover further transactions costs such consultants fees and search costs, meaning that only € 6.5 is

actually invested in the project itself.)

        Why is this cost so high? There are at least three possibilities. The most likely

explanation is that it represents the market-determined award for the intermediaries’ assumption

of the risk of project default or lower-than-expected credit generation. This risk is transferred to

the intermediaries from both credit buyers and credit sellers. As I noted earlier, credit buyers

often prefer to buy guaranteed credits rather than live with the risk of non-delivery. Credit

sellers could make these guarantees by writing them into their long-term credit offtake contracts,

but they tend to prefer more flexible contract terms that insulate them from liability for

underperformance. 85 The intermediaries solve this problem by standing in between the two

parties and writing each the contract they desire; the price spread is their reward.



        85
            Capoor and Ambrosi, supra note 1. Furthermore, many project developers prefer to sign emissions
reductions purchase agreements before the project has been approved, meaning that the price spread also embodies
the risk of non-approval as well as risk of lower-than-expected credit production.


                                                       33
                     Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


                     Table 2: An Approach to Categorizing the Costs of Using the CDM
       Item                                  Explanation & Measurement Technique                                Estimate
Project                 All costs incurred by the project that are not reflected in fees paid. Typically,       € 40,00086
Developer’s             this category will include the cost of finding and interacting with project
search,                 partners. If the project does not partner with other firms, the category will
preliminary and         include the cost of in-house development of expertise and performance
negotiation costs       consulting and market-making work. Costs in this category will not show up in
                        an explicit price, and must be estimated from an inquiry into the internal
                        operations of project developer.
Consultant’s Fee        This fee may include (1) the consultant’s costs of finding, negotiating with, and       € 75,00087
                        interacting with the project, (2) the costs of estimating emissions reductions and
                        preparing other project documentation, (3) the cost of interacting with the DNA
                        and DOE, if that responsibility is allocated to the consultant, (4) any fees that the
                        consultant takes responsibility for paying on behalf of the project, and (5) the
                        consultant’s profits, taxes, and debt service payments. This cost is observable in
                        the contract price paid by the project to its consultant.
Regulatory fees         If the consultant does not take on contractual responsibility for paying fees to the    € 72,50088
paid by project.        DNA, DOE, and Executive Board under its contract with the project, those fees
                        are recorded in this category. They are observable in official fee schedules.
Other regulatory        To the extent that the offset regulator (e.g. the Executive Board) is funded not            0
funding                 only by user fees but by other government funds, that funding covers regulatory
                        costs that are part of the cost of maintaining the offset system. These costs are
                        observable in records of funding transfers to the regulator.
Spread between          Like the consultant’s fee, this “price spread” reflects the cost of performing           € 3.00 /
seller and buyer        intermediation and aggregation functions, as well as the profits of the firms that       tCO289
price prices            undertake those functions. This cost is observable as either a brokerage fee or a
                        price spread.
Transfer fees           Brokerage registry fees, transaction costs, and other fees charged by regulators           090
                        and not assumed by the intermediary as part of the price spread.
Compliance              All costs incurred by the compliance buyer in using the mechanism that are not          € 40,00091
buyer’s search,         reflected in the offset purchase price. Like the project’s costs, these costs do not
preliminary, and        show up in a price, and require an inquiry into the internal operations of the
negotiation costs.      compliance buyer.
Total assuming a carbon offset price of € 10 / tCO2 , a project size of 46,000 tCO2/yr, 92 and a useful          € 3.55 /
life of 7 years.93                                                                                                tCO2
Percent of total offset funding dissipated in transactions costs                                                  36%



         86
            Based on Swedish Pilot Data, using lower bound of negotiation costs and assuming that project’s search
and negotiation costs are equal to buyer’s search and negotitation costs, supra note X.
         87
            Based on the Michoelawa & Jotzko, supra note 68.
         88
            Based on Swedish pilot project figures for validation costs, registration costs, and DNA approval costs,
supra note 69.
         89
            Capoor and Ambrosi 2008, supra note 3, at 31-34.
         90
            I assume that all such fees are paid out of the World Bank estimate for the price spread.
         91
            Based on the Swedish pilot’s search and negotiation costs, supra note 69.
         92
            This is the median project size across all projects in the CDM pipeline based on the “first year ktCO2”
column in the Unep-Risoe data, supra note 2.
         93
            CDM projects can receive credit for a 10-year non-renewable term or for a 7-year term renewable two
times for a total of 21 years. The future credit stream represented by this figure has not been discounted.


                                                             34
               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


       A second possible reason is that some integrated operations like Ecosecurities may

charge low consulting fees and subsidize their consulting operations with the fees and price

spreads they receive by purchasing credits from the projects they work on. If so, the € 3 price

spread reported by the World Bank may cover some consulting fees and regulatory fees as well

as intermediation costs. However, it is not clear that this cost shifting should affect the bottom

line estimate of total transactions costs. And even if we ignore all the other transactions costs in

the table except for the price spread, we are still left with an estimate of 30% transaction costs—

well above most of the estimates reported in the previous literature.

       A third, more sinister, possibility is that the price spread reflects market failure within the

intermediation industry. In other words, it could be that the industry is compensating itself at a

rate that goes beyond the true social value of its risk-bearing and market-making, just as Wall

Street’s critics allege that the money earned by financial firms is not justified by their

performance. Even if this line of criticism is true, however, the spread is still a cost of using the

system. Buyers and sellers pay the intermediaries whether their payments are well-spent on

insurance or whether it is ill-spent in lining the pockets of clever financial engineers. The only

difference is that in the second case, the system is both costly and risky, whereas in the first case

it is merely costly, implying that if anything my approach will tend to underestimate transaction

costs by ignoring the non-pecuniary cost of unmitigated risk.

       It may be fairly objected that the cost of mitigating risk should not be included in our

estimate of the cost of using the CDM system. After all, not all compliance buyers purchase

guaranteed offsets—some may choose to buy relatively risky “primary” offset credits.

Similarly, not all project developers are unwilling to bear approval and emissions reductions risk

themselves. Some projects do write emissions reductions purchase agreements with guarantee




                                                  35
                Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


clauses,94 and others don’t sell their credits forward at all.95 However, risk, too, is a cost that

should be quantified in our estimation of the total cost of using the CDM system. Those buyers

and projects that choose to tolerate higher risk in exchange for a more attractive pecuniary price

are hiding this cost, not eliminating it.

4. The Implications of Transaction costs in Offsetting
        The most obvious implication of high transaction cost is their potential to increase the

cost of meeting the cap and trade system’s cap. As Robert N. Stavins has demonstrated formally

in Transaction costs and Tradable Permits,96 transaction costs have both a price effect and a

quantity effect, both of which increase the cost of compliance with a given emissions target and

decrease the flow of investment to offset providers. The price effect does so directly by making

offsets more expensive to sell and purchase. The quantity effect does so directly by inspiring

firms to substitute relatively expensive allowances or direct reductions for the offsets than they

would use otherwise.

        High transaction costs may also affect the distribution of projects. Several critics have

noted that transaction costs may explain the CDM’s poor performance against its goal of

incentivizing sustainable development. Because the high fixed transaction costs make it harder

for small projects to cover those costs while still yielding an attractive return, they tend to bias

CDM investment toward large projects. This may be why decentralized projects like rural cook



        94
            Capoor & Ambrosi 2008, supra note 3, at 34.
        95
            Michaelowa says that Indian project developers typically take this spot market-based “merchant”
approach. AXEL MICHAELOWA & PALLAV PUROHIT, ADDITIONALITY DETERMINATION OF INDIAN CDM PROJECTS:
CAN INDIAN CDM PROJECT DEVELOPERS OUTWIT THE CDM EXECUTIVE BOARD? 4 (2007),
http://www.noe21.org/docs/Michaelowa-teripress-2007.
         96
            Robert N. Stavins, Transactions Costs and Tradeable Permits, 29 JOURNAL OF ENVIRONMENTAL
ECONOMICS AND MANAGEMENT 133 (1995). Stavins analysis focuses on allowances, not offsets, but his preliminary
conclusions are easily generalizable to offsets. See also Juan Pablo Montero, Marketable pollution permits with
uncertainty and transaction costs, 20 Resource and energy economics 27 (1998); G. Cornelis van Kooten, Sabina
Lee Shaikh, and Pavel Suchanek, Mitigating Climate Change by Planting Trees: The Transaction Costs Trap 78
LAND ECONOMICS 559 (concluding that transaction costs may “increase the costs of afforestation [offset] projects
beyond what conventional economic analysis suggests”).


                                                      36
                Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


stoves have been so uncommon, even though credits derived from such projects attract premium

prices.97

E. Environmental Criticism of the CDM
        What kind of outcomes are “purchased” with the 36% of offset buyers’ funding that goes

toward offset certification and marketing? Unfortunately, there is considerable evidence that the

environmental “quality” of the offsets transacted through the CDM is highly suspect.

Environmental criticism of the CDM has focused primarily on two problems: the HFC-23

problem and the additionality problem.

1. The HFC-23 problem
       HFC-23 gas is a byproduct of the manufacture of HCFC-22, a refrigerant. 98 The CDM

offset awards take into account the fact that a ton of HFC-23 has 11,700 the global warming

impact as a ton of CO2, but fail to take into account that the cost of eliminating one ton of HFC-

23 is not 11,700 times more than the cost of eliminating a ton of CO2.99 As a result, HFC-23

projects became the most sought-after products in the CDM marketplace, and their owners

received windfall profits. Critics pointed out that from the perspective of the international

community, these windfalls were a waste of money: HFC-23 destruction that could have been

achieved for about $31 million per year by directly paying HCFC-22 producers to install HFC-23

destruction equipment was contracted through the CDM at a cost of $800 million per year.100

2. The additionality problem
        As the supply of HFC-23 projects was exhausted and CDM regulators made rules to limit

the further expansion of the project class, criticism turned to the more intractable problem of

estimating counterfactual baselines for the purpose of showing additionality. As discussed

        97
           Capoor & Ambrosi 2009, supra note 1.
        98
           See Michael Wara, The Performance and Potential of the Clean Development Mechanism, 55 UCLA Law
Review 1759 (2008).
        99
           Id. at X.
        100
            Bradsher, Keith. “Outsize Profits, and Questions, in Effort to Cut Warming Gases.” The New York
Times 21 Dec 2006. 16 Dec 2008.


                                                      37
                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


above, the CDM allows some projects to show additionality by citing “barriers” that the project

faces, as opposed to actually demonstrating its financial marginality. However, a quantitative

study showed that only 29% of the large projects that use the barriers analysis go on to explain

how the CDM helps address the barriers cited or why the barriers would have precluded the

implementation of the project but for the CDM.101 The other 71% merely allude to barriers

without showing how those barriers make the project financially marginal. As a conceptual

matter, it is difficult to see how this evidence allows regulators to separate additional from non-

additional projects.

         There are also concerns about the CDM’s application of the investment test. Many

projects that apply the investment test cite relatively small increases in the economic

attractiveness of the project. A wind project in India successfully argued that an increase in

project IRR from 7.36% without CDM funding to 7.87% with CDM funding demonstrated

additionality.102 In addition, many applicants ignore the additionality tools’ requirement that

they compare profitability estimates to a “hurdle” or “benchmark” rate.103 Where they do make

such a comparison, the hurdle rates vary widely, raising doubts about whether applicants are

accurately indentifying a reasonable rate rather than setting the hurdle in a way that makes a

project additional.104

         This weak project-by-project additionality review has led to results that are absurd in the

aggregate. Haya and McCully find that 35% of all large hydro projects certified by the CDM as




         101
              Schneider, supra note 58, at 33.
         102
              Id., at 35
          103
              Id., at 36
          104
              Id., at 36 (“Among the analysed projects, the required internal rate of return [stated by the project] of the
project ranges from 4% to 22%).


                                                            38
                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


additional were completed before registration with the CDM.105 Ninety-six percent of the

remainder were expected to be completed within two years, meaning that the project’s

additionality arguments rely on what Haya and McCully refer to as the “Alice in Wonderland”

assumption that the large dam investments would be abandoned unfinished but for the CDM.106

Similarly, Wara and Victor note that substantially all new non-coal electricity generation

capacity in China receives CDM funding. This implies that but for the CDM there would be no

investment in natural gas or renewables, despite the Chinese government’s clearly-articulated

policy of increasing such investment.

        Not surprisingly, therefore, the authors who have attempted to quantify the total effect of

these bad additionality decisions have concluded that a large fraction of CDM additionality

determinations are likely erroneous. Based on a 2006 study of 52 Indian projects, Axel

Michaelowa estimates that 40% of certified projects are non-additional.107 Based on a 2007

analysis of 93 projects, Lambert Schneider also arrives at a 40% figure, though he notes that

because of the smaller-than-average size of these projects, they account for only 20% of total

emissions reductions claimed by the CDM.108 Based on a 2005 sample of 19 projects, Sutter and

Parreño give 11 out of 16 analyzed projects a “C” rating for additionality, corresponding to a

judgment that additionality was “unlikely.”109



        105
              BARBARA HAYA AND PATRICK MCCULLY, FAILED MECHANISM: HUNDREDS OF HYDROS EXPOSE
SERIOUS FLAWS IN THE CDM (International Rivers, 2007), http://internationalrivers.org/en/climate-change/carbon-
trading-cdm/failed-mechanism-hundreds-hydros-expose-serious-flaws-cdm.
          106
              Id.
          107
              Michaelowa and Purohit, supra note 92.
          108
              Schneider, supra note 58. The 40% figure is for projects whose additionality is “unlikely or
questionable.”
          109
              Christoph Sutter & Juan Parreño, Does the current Clean Development Mechanism (CDM) deliver its
sustainable development claim? An analysis of officially registered CDM projects, 84 CLIMATIC CHANGE 75-90, 84
(2007). There is also evidence that CDM participants themselves doubt the additionality of projects. In a recent
survey, 71% of surveyed participants agreed that “many CDM projects would also be implemented without
registration under the CDM.” Eighty-one percent agreed that “in many cases, carbon revenues are the icing on the
cake, but are not decisive for the investment decision.” Scheinder, supra note 58, at 9.


                                                       39
                Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


        Given that 300 billion tCO2 of emissions reductions per year are expected to be processed

via the CDM between 2008-2012, a 40% false positive rate would amount to 120 million non-

additional tons of CO2.110 This is about 1% of 1990 emissions by the parties that agreed to

Kyoto targets, meaning that even if Kyoto cap and trade system nominally achieves its goal of

cutting emissions to 5% below 1990 levels, it will actually have cut emissions to only 4% below

Kyoto levels. If the U.S. system relies as heavily on offsets as the US EPA currently predicts,

the additionality problem is likely to be even bigger.

        Nor does there appear to be relief on the horizon. It may be possible for the CDM to

implement more stringent standards and more effective evaluation procedures. However, as I

describe in more detail below, CDM participants have already voiced their discontent with the

high cost of the CDM’s additionality requirements and the long administrative queues that back

up behind the project approval bottleneck. More stringent additionality requirements would

likely exacerbate this discontent. Moreover, some of the most cogent CDM critics doubt that

“more procedure” has the power to solve the additionality problem, even irrespective of its

expense. These critics point out the heart of the additionality problem is that it makes necessary

something that is impossible—namely, observation of what emissions would be in a

counterfactual world without the CDM incentive.111

F. A Concluding Observation




        110
           Source: author’s calculations based on data in Capoor & Ambrosi 2009, supra note 1.
        111
           Check and see if this says this, if not cite somewhere else:
http://www.offsetqualityinitiative.org/pdfs/OQI_Ensuring_Offset_Quality_7_08.pdf.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


            III. TRACING OFFSETTING’S PROBLEMS TO MARKET STRUCTURE
       Having reached the midpoint of this paper, we find ourselves far from we began. We

have descended from high theory about the ability of an automatic market correction mechanism

to efficiently allocate environmental property rights to the reality of the present day carbon

market. This market, I have argued, is beset by the twin problems of arguably wasteful

expenditures on intermediation services and questionable environmental outcomes. In this Part, I

turn to the task of setting out the argument that these problems flow directly from the choice of a

tradable property rights-based approach to offsetting.

       I do so by introducing insights from the New Institutional Economics (NIE), a line of

Economic thought whose concern with transaction costs distinguishes it from the mainstream

Economic thought summarized in Part I. NIE, I argue, suggests that the use of tradable property

rights to incentivize investment in clean development involves significant inherent transaction

costs. I argue that the same theory suggests the present system of managing these inherent

costs—the carbon market—is suboptimal, and for three reasons. First, there is little evidence to

suggest that the 35% share of transaction costs that goes toward operating this market system is

less than the share that would be required by another conceivable architectures, such as a

publicly managed fund. Second, in light of the recent financial crisis, there is reason to believe

that securitization mechanisms like the present carbon offsets systems do a poor job of managing

the systemic risks like the risk of asset bubbles, and are therefore prone to shocks powerful

enough to upend the whole system. Third, a private-sector led carbon market inevitably has a

difficult time setting incentives participants that encourage participants to trade in

environmentally-sound emissions reductions, rather than dubious or fraudulent reductions.




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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


A. The New Institutional Economics
        The modern study of transaction costs begins with Ronald Coase’s other famous paper:

The Nature of the Firm.112 In this paper, Coase observed that the distinguishing mark of the firm

is “the supercession of the price mechanism” by management.113 Given Smith’s insights about

the special nature of market transactions, Coase wondered why firms were so prevalent.

Wouldn’t individuals interacting in a free market outperform a managed firm? Why do regional

managers and supply chain managers acting inside a management structure plan inventory

subject to commands from superiors, when they could just buy goods from one another

according to price signals received from a spot market?

        Coase resolved this question the same way he explained the need for government

intervention in The Problem of Social Cost: by focusing on the importance of transaction costs.

“The main reason why it is profitable to establish a firm”, he said, “would seem to be that there

is a cost of using the price mechanism.”114 To take just a few examples, there is the cost of

finding a party to transact with, the cost of finding a fair price, the cost of formalizing the

arrangement, the cost of enforcing the agreement, and so on. Where these costs trump the

Smithian benefits of market organization, economic actors in the labor market will choose to




        112
              Of course, Coase had many predecessors, one of whom was Adam Smith himself. Smith’s analysis of
the division of labor in a pin factory anticipates many of Coase’s ideas. See Adam Smith, THE WEALTH OF NATIONS
(Modern Library 2000), at 19. Economic historians have also taken a great interest in the phenomenon of firms.
See Alfred D. Chandler, THE VISIBLE HAND: THE MANAGERIAL REVOLUTION IN AMERICAN BUSINESS (1977), at 12
(arguing that economic growth in the U.S. has been driven by the replacement of a market-dominated small business
economy by a management-dominated big-business economy); William Cronon, NATURE’S METROPOLIS: CHICAGO
AND THE GREAT WEST (1992) (describing the efficiencies that accompanied the replacement of small merchants
trading on market price spreads with managed enterprises like Montgomery Ward). Paul Krugman has suggsested
that Economists ignored these insights until recently because they had learned to mathematically model competition
but not had not yet learned to model the increasing returns implicit in integration. See David Warsch, KNOWLEDGE
AND THE WEALTH OF NATIONS (2006) at 39.
          113
              Ronald H. Coase, The Nature of the Firm (1937) in Oliver E. Williamson and Sidney G. Winter, THE
NATURE OF THE FIRM: ORIGINS, EVOLUTION, AND DEVELOPMENT 18, 19 (1993).
          114
              Id. at 21.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


avoid them by accepting work as employees rather than independent contractors, and firm

organization will “supersede” market organization in the product market.

        The “New Institutional Economics” (NIE) movement sought to formalize and

operationalize Coase’s insights.115 The contributions to the school have been diverse,116 and

many fundamental questions are still debated; however, it is possible to articulate several NIE

concepts that are of particular relevance to this paper.

        First, NIE counsels attention to “microstructure.”117 When classical Economists look at

an industry, they see a number of ruthlessly production functions that take in inputs and put out

outputs. NIE economists see something much more complex—firms of various degrees of

integration connected to each other by contractual relationships of many different stripes.

Because they take Coase’s insight about transaction costs to heart, the NIE economists recognize

that much of the economization in our society is accomplished through the “visible hands” that

architect efficient institutions and relationships, rather than by the discipline of the market’s

invisible hand.118
                                                                                                      119
        Second, the NIE has popularized the assumption of “incomplete contracting.”

Traditional perfect-competition economic models assume that rational actors will write contracts

that can cover all possible future states of the world, leaving no risk un-allocated. NIE models

make a more realistic assumption, positing that our ability to express our rationality in the

contracting realm is “bounded” by the cost of obtaining relevant information and the cost of

negotiating and writing contracts.



        115
            Oliver E. Williamson, THE ECONOMIC INSTITUTIONS OF CAPITALISM, 3-4 (1985).
        116
            See Nicolai J. Foss, The Theory of the Firm: An introduction to Themes and Contributions in Nicolai J.
Foss, THE THEORY OF THE FIRM: CRITICAL PERSPECTIVES ON BUSINESS AND MANAGEMENT (2000), at xxx.
        117
            Williamson, The Economic Institutions of Capitalism, supra note 111, at 1.
        118
            Id. at 1-2.
        119
            Foss, supra note 112, at xl.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


         Third, NIE has articulated the importance of adaptive decisionmaking. A corollary of

incomplete contracting is that any contractual arrangement will leave residual uncertainty about

future events. Therefore, economic agents must often make adaptive decisions in response to

unforeseen events in addition to the ex-ante decisions. This task often—but not always—favors

integration over market competition.120 All else being equal, the value of adaptive

decisionmaking will be greater where uncertainty is greater. It will also be greater when parties

are subject to a “hold up game.” For example, if a coal-fired power plant is built near a

contractual partner’s coal mine, both parties have transaction-specific investments that make the

spot market an inadequate means of coordinating their activity.

         Fourth, NIE makes extensive use of the concept of the principal-agent problem.121 The

principal-agent problem is the formal name for the difficulty of motivating someone to work on

another person’s behalf. In the traditional world of neoclassical economics, you can ignore this

problem. Information and transactions are free, so omniscient managers will effectively

supervise their employees, and fire and rehire when they misbehave. But in an NIE world of

incomplete contracting and substantial transaction costs, it’s impossible for the principal to

evaluate the agent’s work with 100% effectiveness. Therefore, the agent will always be able to

find a way to shirk work or to pursue her own interests rather than those of her principal.

Adaptive decisionmaking and incomplete contracting are economies to integration, but the

principal-agent problem cuts the opposite way—a diseconomy to integration, a centrifugal force

that checks the centripetal forces of the other two ideas.




         120
             Id.
         121
             This concept, unlike the others mentioned in this section, is not endemic to NIE, but has its own
literature. Id. at xxxvi.


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                Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


        Fifth, application of an NIE approach to the decision between a public bureaucracy and a

privatized bureaucracy has led Oliver Williamson to discover the economy of “probity.”122

Williamson uses this word as a catch-all for values like loyalty to principals, loyalty to

consumers or constituents, and external transparency. Economic actors who value probity, he

says, typically turn to organizational forms with some or all of the hallmarks of a public

bureaucracy: formalized, rule-oriented management, a compensation and tenure system that

rewards loyalty over hard work or creativity, and social conditioning that brings an agent’s

preferences in line with those of her organization.

        NIE assumes that the economies and diseconomies implied by these ideas will be

important to varying degrees in different industries and transactions. It suggests that their

relative importance in a given industry or transaction can predict the most efficient combination

of firms, market transactions, and contractual relationships:

        “As among market, hybrid, and hierarchy, the market mode supports
        autonomy by combining high-powered incentives with little administrative
        control and a legalistic dispute settling mechanism; hierarchy supports
        (internal) cooperation by combining low-powered incentives, extensive
        administrative control, and resolving most disputes within the firm…and
        hybrid contracting is located between the market and hierarchy in all three
        respects.”123
In other words, where the disadvantages of weak incentives (i.e. the principal-agent problem)

dominate the flexibility and dispute resolution advantages of hierarchical control, the market

mode of organization is preferred. Think about why you don’t employ a spinner, weaver, and

designer every time you need a new shirt. For one thing, there is little uncertainty about what

you each need to do: the shirt maker is going to make a shirt and you’re going to wear it.

There’s also little “asset specificity:” the decentralized mass market for shirts, unlike the market


        122
             Oliver E. Williamson, Public and Private Bureaucracies: A Transactions Cost Economics Perspective,
15 J. OF L. ECON. AND ORG. 306, 322.
         123
             Public and Private Bureacracies, supra note 118, at 313.


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                   Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


for the output of a coal mine, doesn’t require you to make a relationship-specific investment.

Therefore, there’s little value in adaptive management, not nearly enough to compensate you for

living with the omnipresent principal agent diseconomy of trying to organize and discipline shirt-

making employees. You would rather unleash the market incentives that force the shirt-maker

(like Adam Smith’s butcher, baker, and brewer) to deliver a high-quality shirt at a low price.

       On the other hand, in scenarios that demand flexible decisionmaking and quick

adjudication of disputes, hierarchical control is preferred. For example, if you’re a busy

executive, you don’t want to negotiate a new contract with your personal assistant every time

you ask him to do something for you. Nor would it be economical for you to take to him court to

litigate the terms of those contracts when he doesn’t perform. Therefore, it’s better to take him

on as an employee, and do your best to use oversight to correct his incentive to shirk.

       Where other transaction costs suggest that bureaucratic control will outperform market

incentives, economic actors face an additional choice between a public bureaucracy and a private

one. For Williamson, the institutional features of public bureaucracy—e.g. civil service

protections and the use of formal rules to govern bureaucratic work—make it like firm

bureaucracy, but more so. Even more than private sector management, Williamson says, public

management has the potential to rationally organize activity. At the same time, public

management threatens to even more drastically weaken the incentives to work efficiently.

Therefore, public management is likely to be preferred only where probity is in high demand, as

it Williamson concludes it clearly is, at the very least, for core governmental functions such as

“foreign affairs transactions.”124

       The Hayek-EMH-Public Choice perspective that I referred to as “market romanticism” in

Part I suggests that market systems are inherently more efficient than managed systems. But
       124
             Id.


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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


application of the NIE framework enriches this picture. “Pure” markets are at best uncommon;

much of the economization that we often carelessly attribute to market discipline is actually the

product of contractual arrangements and managerial organization. In the next three sections, I

apply the NIE framework to the carbon market, using it to help judge the existing structure’s

performance on three dimensions: efficiency125, risk management, and environmental quality.

B. Market Structure and Inefficiency
         The offsetting industry has several characteristics that the NIE predicts favor contracting

and integration strategies over market strategies. First, carbon markets are bedeviled by

uncertainty. Application of a baseline measurement methodology to the project can be more

costly or less costly than expected. The project can be rejected by regulators. Even if its

application is approved, problems with the underlying physical project might prevent the project

from ever receiving credits. The price of carbon might fall, or rise. Under pressure from

environmental critics, regulators could cease issuing credits to certain classes of questionable

products. The international agreement that gives offsets their value could collapse.

         Second, offset creation also requires relationship-specific investments by a number of

different individuals with specialized expertise and interests. It takes a project developer with

expertise in putting together a clean energy or other emissions reduction project, consultants with

expertise in the offset approval process, and intermediaries with expertise in pricing a risky

stream of future benefits and selling that stream to end-users that may be on the other side of the

world.

         Together, this risk and asset specificity go a long way towards explaining the features of

the economic landscape that we observed in Part II. For example, they explain why carbon

         125
             Broadly defined, “efficiency” could of course encompass both risk management and environmental
quality. Here, I use it to refer to the “nominal” cost of operating the system, not the cost of operating a system at a
certain level of risk or environmental quality.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


market participants often prefer to structure their relationships through detailed contracts rather

than one-off spot market transactions. They also explain the participants’ tendency to bring

market transactions between intermediaries under the umbrella of a single firm: when the risk is

extreme, or when it is prohibitively expensive to negotiate ex ante contracts that efficiently

allocate specialized tasks such supercession of the market mechanism by employment

relationships will be preferred. These considerations can help explain the boundaries between

firm, market and contract that we observe in the offsetting industry. For example, most

compliance buyers prefer to buy offsets, rather than supervising an intermediation/aggregation

staff to work within their own firm. However, the aggregation and intermediation firms typically

hire analysts and other employees, rather than purchasing their services on a spot market.

       Of course, the theory is not granular enough to predict firm-market boundaries with

specificity, and in any case the empirical evidence presented in Part II reveals that different

players are experimenting with different boundaries. For example, some firms have integrated

the consulting function with the intermediation and aggregation functions. This may reflect the

fact that information learned during the consulting process is useful for the pricing process, and

that such information is much more easily shared by commanding its transfer between divisions

than by buying it under a contract with a different firm.    At the same time, other firms have

remained consultants only, perhaps reflecting a view that the cost of managing an intermediation

division would be greater than “buying” intermediation on the free market.

       The observed structure of the carbon market, then, can be understood as an attempt to

make the best of certain costs—pecuniary and otherwise—that are inherently part of the

offsetting process. However, the NIE perspective also helps us understand that these contracts

and firms are only partial solutions to the problem. Negotiation of contracts and the subsequent




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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


monitoring of contractual partners is expensive. So is the participation of firms: the principal-

agent phenomenon means that firms will always tend to operate less efficiently than the market

ideal. Therefore, what a NIE-based understanding of carbon markets structure really reveals is

that, in the words of Milton Friedman, “there’s no such thing as a free lunch.” You can use the

free market to discipline the work of the various actors, but you’re going to pay for it in the form

of high transaction costs. Alternatively, you can use the institution of a firm or contracts to

economize on some transactions, but if you do, you’re going to weaken incentives and run into

the principal-agent problem. The root of the matter is that it costs a lot to examine, certify,

guarantee, and market emissions reductions that originate outside of a cap and trade system.

         Whether an alternative architecture like the fund-based system proposed below could

deliver offsets at a price lower than the 35% share of total expenditures required by the present

system remains an open question, but the NIE contribution combined with the empirical

evidence of high costs is at least enough to reject the market romantic prediction that market

coordination is per se the most efficient solution. A more integrated structure that relied on

contract-based direct investment could well cost society less to operate than a system that relies

on the purchase of property rights.

C. Market Structure and Catastrophic Risk, with an extended analogy to the 2008 collapse
of the U.S. residential mortgage market
         The structure of the current carbon market also may be a suboptimal on another

dimension: risk. The similarities between the structure of the emerging carbon market and that

of the mortgage lending market that collapsed in 2007126 are striking. Below, I flesh out this


         126
             My description of this crisis is based on a number of recent books that attempt to explain the crisis to a
popular audience (one market, at least, is still working well): KEVIN PHILLIPS, BAD MONEY: RECKLESS FINANCE,
FAILED POLITICS, AND THE GLOBAL CRISIS OF AMERICAN CAPITALISM (2008); CHARLES R. MORRIS, THE TRILLION
DOLLAR MELTDOWN: EASY MONEY, HIGH ROLLERS, AND THE GREAT CREDIT CRASH (2008); GEORGE COOPER, THE
ORIGIN OF FINANCIAL CRISES: CENTRAL BANKS, CREDIT BUBBLES AND THE EFFICIENT MARKET FALLACY (2008). An
“official explanation” exists in the form of a statement issued by the emergency OECD summit convened in


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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


analogy, and argue that the similarities between the two structures should lead us to wonder

whether the 35% of offset funds that goes to carbon market transactions is adequately protecting

investors and project developers from the risk of market manipulation, speculative excesses, and

other shocks.127

         Decades ago, the U.S. home lending system was dominated by local banks. The banks

made loans secured by a lien on the home, and bore the risk that the homeowner would default.

They therefore supervised their loans assiduously, refusing to extend credit to would-be

homebuyers that they considered too risky, closely watching economic weather patterns, and

tracking the value of the homes that were the security on their loans. Then the U.S. government

and the financial sector innovated.128 The mortgage markets learned to take a stream of future

payments on a traditional mortgage, bundle them into a trust along with a number of other

mortgage payment streams, and issue a security (i.e. a property right) backed by the trust. This

risk-pooling and securitization process allowed the financial sector to offer fixed income

securities that supplemented the supply of bonds, which were becoming scarce in relation to

demand, both because of rising savings from the newly wealthy in some areas of the developing

world and because the U.S. government was running a budget surplus and was therefore no

longer a net borrower. These new mortgage-backed securities allowed an unprecedented amount

of money to flow from worldwide investors into U.S. housing markets.



November, 2008: Declaration of the Summit on Financial Markets and the World Economy, (2008),
http://www.whitehouse.gov/news/releases/2008/11/20081115-1.html. I have also relied heavily on recent op-ed
pieces and blog posts by economists, such as Joseph Stiglitz, “No manufacturing. No new ideas. What's our
economy based on?,” The New Republic (Sep. 10, 2008).
          127
              The work of Michelle Chan of Friends of the Earth, Inc. is a pioneering effort to think through the nature
of these risks. See MICHELLE CHAN, SUBPRIME CARBON? RE-THINKING THE WORLD’S LARGEST NEW DERIVATIVES
MARKET (Friends of the Earth 2009), http://www.foe.org/pdf/SubprimeCarbonReport.pdf.
          128
              For a tongue-in-cheek but highly provocative theory of the financial crisis, see Calvin Trillin’s
suggestion that all of the problems can be traced to the fact that “smart guys started working on Wall Street,”
thereby creating a highly profitable innovations that ended up being too clever by half. Calvin Trillin, “Wall Street
Smarts,” The New York Times (13 Oct. 2009), http://www.nytimes.com/2009/10/14/opinion/14trillin.html.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


        The new system’s architects and participants expected that market incentives unleashed

by turning firm-issued loans into market-tradable securities would prevent capital from flowing

to risky buyers. After all, the securities were traded on a free market, and their value was

ultimately linked to the risk of default, so the market would place a low value on risky securities

and thereby give mortgage originators an interest in ensuring that their own issues were sound.

Unfortunately, this assumption ignored the microstructural changes in the mortgage market. The

tidal wave of new loanable funds available from the fixed-income markets enticed mortgage

originators to lower their lending standards. The originators invented “unverified income,

verified asset” loans, then “no income, verified asset” loans, and, finally, the now-infamous

“NINJA” loan—“no income, no job, no assets.”129 The originators themselves may have been

aware of the increased risk of the newest loans, but since they passed all of the mortgages up the

chain to the Wall Street firms they didn’t bear this risk themselves, and could afford to ignore it

in the short term.130 The intermediaries that did the pooling, securitizing, tranching, and re-

tranching didn’t care either, because they, too, passed the loans on after taking their cut . The

prestigious investment firms that held many of the securities (and later failed because of it)

should have cared, but they didn’t. The principal-agent may be part of the explanation: firm

management was playing with other people’s money, not their own. 131 Thus they shared in the

short-term upside of the firm’s investment but were not fully exposed to the downside risk (the

worst that could happen to them is to get fired). As a result, these agents may have had an

incentive to take bets that were higher-returning but riskier than the principals wanted. The buck


        129
             Ira Glass, The Giant Pool of Money (2008),
http://www.thisamericanlife.org/extras/radio/355_transcript.pdf., at 7
         130
             Morris, supra note 122.
         131
             At least one commentator has suggested that the principal-agent model explains why the traditional
agent-run investment banks failed, rather than the unregulated but principal-controlled hedge funds that many
thought more dangerous. Chris Dillow, “Why aren't hedge funds failing as fast as banks?,” The Times, September
17, 2008, http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4768564.ece.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


stops with the principals, and they themselves (or the rating agencies they hire) might perhaps

have been expected taken on some minimal role in monitoring risk. But the fantastical

complexity and abstractness of the whole firm-contract-market complex made it impossible for

them—for anyone—to accurately understand this risk.

         These problems were exacerbated by financial firms’ assumption that they had limited

their exposure to home prices by purchasing an insurance-like derivative called a “Credit Default

Swap” from companies like A.I.G. For its part, AIG felt comfortable writing these insurance

contracts because its risk models were based on the low historic default rates under the old

mortgage regime, not on the as-yet unobserved default rates in the brave new world of NINJA

loans and television programs called “Flip this House.” When housing prices began to fall in

2007, an unexpectedly-large percentage of these loans went sour, and the numerous entities that

mistakenly thought they had shifted the risk between each other enough times to make it

disappear had to pay the piper.132

         To render these events in the language of the NIE, we can say that a contract-based

mortgage lending regime was superseded by a market for tradable property rights (i.e. mortgage-

backed securities) in which integrated firms (investment banks) were the leading participants.

The gatekeepers of the old, boring system were bankers who decided, often on the basis of local

knowledge, how attractive a credit risk each homeowner was. The gatekeepers of the new,

exciting system were New York- and London-based financiers whose decisions to buy and sell

abstract pools of income streams were supposed to propagate down through the mortgage value

chain, sending Smithian price signals down to the local banks and would be homeowners. The


         132
              The pain was transmitted to the rest of the economy by the classic downward spiral of recession, where
tight credit leads to lower investment, lower investment leads to lower employment, lower employment leads to
lower spending, and lower spending further lowers investment and employment, which in turn lower spending still
further.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


old system was inefficient in the sense that it did not provide a mechanism by which Emirati

bond investors could take a financial stake in the housing markets of exburban USA. In this way

it “artificially” limited the supply of funds and made it more expensive than theoretically

necessary for American borrowers to finance the purchase of homes. The new system solved

this inefficiency problem, but only at the cost of accepting catastrophic systemic risks from

which the old system was naturally protected. When taxpayers picked up the tab for the bad

loans and suffered through the second-worst recession in U.S. history, it was the new system that

looked inefficient.

       The carbon offset markets are similar to the mortgage market. The architects of the offset

market have invented clever system that allows the distribution of funding through market

trading of property rights rather than through direct, contractual relationships. The advantage of

this system is that it creates price signals that encourage funding to automatically flow to the

projects that give the most emissions reductions bang for the buck. Its disadvantage is its

complexity. Like mortgage originators, carbon project developers end up selling forward a

future stream of income (though this income is denominated in terms of tCO2 rather than

currency). In some cases, this stream is securitized in the same way as the mortgages; in others it

is aggregated by the similar process of using firms that hold a pool of such streams on their

balance sheet and then write tradable derivative contract. From the discussion of the

additionality problem, it is clear that there is reason to believe the money spent on these carbon

projects is being targeted to “risky” projects—projects claiming emissions reductions that may

later turn out to be non-additional. As in the mortgage market, neither the project owner that

“originates” the asset nor the intermediaries that trade it have an incentive to look out for this

risk, because they intend only to pass the security up the chain. Both the aggregation firms and




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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


the capped firms are run by agents who may ignore catastrophic risks, and these agents operate

under the same smokescreen of market complexity as the mortgage-buying agents did.133

Carbon rating agencies have emerged to assess risk, but there is little reason to believe that these

agencies will perform better than S&P and Moody’s did during the financial crisis.

         With the example of the financial crisis in mind, Michelle Chan has identified several

risks implicit in the structure of carbon markets. First, a speculative bubble may drive up the

price of carbon. When the bubble “pops,” speculators and companies that made investments

based on the artificially high price will be hung out to dry. Second, the complexity of the system

makes it possible that it will be manipulated by unscrupulous participants. What if concentration

in the intermediation/aggregation industry allows firms to charge super-competitive prices? As I

have already suggested, what if the 30% of all offset investment that goes to intermediaries is

simply pocketed by those intermediaries, rather than going towards aggregation strategies that

manage risk? The mortgage crisis shows that it is unwise to rely on government regulators to

save us from an industry whose structure makes it inherently vulnerable to manipulation. Third,

the carbon market’s use of financial derivatives to re-allocate risk can be problematic. To the

extent that such risk-shifting ends up hiding risk or postponing it to an ultimate day of reckoning,

the innovations are counterproductive, and may end up generating or exacerbating price shocks




         133
             In fact, the problem may be exacerbated by the fact that in the carbon markets, unlike in mortgage
markets, the principals might not even care about the quality of their investments. In the carbon markets, the biggest
risk is not default by the project developers (though that risk does exist), but rather the risk that the projects are
selling non-additional offsets. From the standpoint of society, this risk is real: if credits are non-additional, the
emissions reductions goals of the cap and trade system will be undermined. But from the standpoint of capped
firms, the risk is external: as long as they hold a government-recognized compliance asset, they have done their
duty, and it seems unlikely that government will choose to revoke certifications that it has already issued.
Moreover, even if the government does revoke the certifications for offsets project later revealed to be non-
additional, it may be important that many of the end buyers of those offsets are public utilities that may be able to
pass on the cost of higher than expected cap-and-trade compliance costs to consumers.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


D. Transaction costs and the CDM’s Environmentally Un-Sound Allocation of Capital
         As I suggested above, the main reason for the CDM’s environmental inadequacies is

probably the difficulties inherent to the measurement of counterfactual “business as usual”

baselines, not transaction costs. However, there is reason to believe that high transaction costs

and the market structure that has emerged to make property rights-based offsetting possible

exacerbates this problem. And as for the efficiency and risk problems, the transactions-cost

focused work of the NIE can help elucidate these features.

         Specifically, what Williamson calls the “hazard of probity” is dangerous in offset

markets, much more so than it is in allowance markets. Government uses law to ensure that

every allowance it issues is by definition environmentally real; once allowances are on the

market, there is no danger that they might represent a fraudulent reduction. Carbon offset

transactions are different. For one thing, government itself can’t directly ensure that the offsets

are environmentally sound; it can only oversee the claims of project developers. Therefore, it is

possible that an offset certified by regulators is later revealed to be fraudulent or based on flawed

measurement methodologies. Furthermore, offsets are sold forward before they come into

existence, some before project approval, and many others after project approval but before the

yearly verification of actual emissions reductions and issuance of credit. Therefore, many offset

transactions truck in prospective emissions reductions, not extant emissions reductions.

         In “real” markets, we typically don’t worry about the quality and riskiness of goods that

are bought and sold, because we believe that the buyer has an incentive not only to demand a low

price, but also to ensure the quality of the goods. Caveat emptor, we say.134 But again, offset

markets are different. Neither the buyer, the seller, nor the consultants and intermediaries has an
         134
           Then again, maybe we should worry about the quality of the goods, at least in financial markets. The
mortgage market example is a much a story about the allocation of capital to poor quality investments as it is about
making risky investments, and could be deployed in this section to explain how complex tradable property rights
systems may suppress the market incentives that ensure quality.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


incentive to look out for the environmental “quality” of the carbon asset. The buyer wants only

the right to emit carbon dioxide; if the project developer can get the project past regulators, it is

not it the buyer’s interest to scrutinize the project himself.

        Therefore, the structural characteristics of the carbon offsets market force regulators to

accept all of the responsibility for maintaining the offsets’ integrity. In allowance trading, the

public sector can restrict itself to a “night watchmen” role: it need only prosecute fraud, take care

that powerful players don’t manipulate the market, and help resolve contractual disputes.

Indeed, the relatively small role of the state is one of the things that Coase’s market romantic

readers found so intriguing about The Problem of Social Cost. But the regulation of offsets is

different. In offsetting, the public sector is in large part responsible for producing the asset. It

specifies the methodologies by which emissions reductions are to be measured, sets rules for the

demonstration of additionality, and must ultimately make a yes or no decision on each project.

        Given the importance of the public sector role, two aspects of the CDM are surprising.

First, because the “probity” of offset regulators is all that stands between the integrity of the cap

and trade system and the certification of massive quantities of bogus emissions reductions,

Williamson’s framework would tend to suggest a public bureaucracy, yet the CDM decided to

“outsource” much of the regulation process to Designated Operational Entities. The largest

DOEs are private-sector consulting firms. These firms, and not the CDM Executive Board itself,

have primary responsibility for the examination of projects’ emissions reductions claims. Upon

a positive recommendation by a DOE, Executive Board approval is automatic by default; only if

the Executive Board “requests review” can it override the DOE’s decision. Even more

strikingly, the DOEs are not paid by the EB for their regulatory services, but by the projects

whose applications they review. In a competitive market where several DOEs are competing for




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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


market share, the entities have a clear interest in giving deference to project claims and thereby

acquiring a reputation for being “easy” regulators. An institutional design that better recognized

the importance of probity would almost certainly insulate the regulatory bureaucracy from such

incentives. For example, it might also endow that bureaucracy with some public-sector

characteristics like civil-service employment restrictions and rules of procedure, recognizing that

the value of these rules in ensuring probity outweighs their tendency to stifle bureaucrats’

incentives to work efficiently.

       Second, the CDM’s decision to limit the public sector’s role to passive review of project

claims is questionable. Basically, the CDM has seen fit to use the private sector to do the bulk of

the offset creation work, with the public sector merely giving a stamp of approval or disapproval.

In thus cabining their role, regulators severely limit their access to information about the projects

they evaluate, calling into question whether the offset creation process as a whole has been

carried about with the requisite probity.

       For example, regulators project-by-project perspective can lead to results that are

reasonable on the individual level but nonsensical in the aggregate. As Wara and Victor point

out, it is plausible that any given Chinese non-coal power plant is additional, but it is not

plausible that every new non-coal power plant is.135 Yet the CDM has awarded funding to

virtually all new non-coal capacity in China.

       Similarly, the passive regulatory model also gives regulators a limited ability to respond

to unexpected outcomes of system design flaws. The HFC-23 projects are a case in point. There

was a pervasive sense among offset market observers that credit buyers had paid too much for

HFC-23-derived credits, and should have maximized emissions reductions by diverting some of

their funds to other project classes. But the developers had complied with CDM rules, and the
       135
             Wara and Victor, supra note 5.


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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


sale portion of the transaction was beyond the reach of regulators, so the passive Executive

Board could not but approve the transactions.

       Another related problem is that a limited public sector role makes it difficult for

offsetting funding to find its way to “programmatic” activity such as changes to major

environmental laws or policies or efforts to speed the diffusion of clean technologies like

cookstoves in rural areas. In many cases, such transactions would be most effectively achieved

by direct negotiation with foreign governments. But given the setup of the CDM, no public

sector body is competent to conduct these negotiations itself. It must instead promulgate a rule

authorizing private funders to fund a given activity, and then review the results of each proposed

“programmatic” investment. Under these circumstances, probity concerns are major, and

perhaps even determinative. As a result, the rollout of “programmatic CDM” has been much

delayed. 136

       Appreciation of these probity-related problems would tend to recommend a role for the

public sector that goes beyond the merely regulatory. Rather than being cabined in the upper left

hand corner of Figures 1-3, it might be possible to give the public sector authority to participate

in the rest of the offsetting creation process. If it had more visibility into the markets for project

funding in which physical CDM project compete, it might be able to better separate the projects

that actually need CDM funding from those that are non-additional. If it had more visibility into

the way offsets are priced and sold, it might be able avoid problems like the HFC-23 problem.

And if it were empowered to actually go out and create offsets itself, it might be able to direct

offset funding to programmatic activities in a confidence-inspiring way.




       136
             Cappor & Ambrosi 2009, supra note 1.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


     IV. A “PUBLIC OPTION” FOR CARBON OFFSETTING: THE FUND ALTERNATIVE
        The previous Parts have traced the doubts about the CDM’s efficiency and the

environmental quality of its allocation of funds to its structure as a system of tradable property

rights. In this Part, I attempt to re-envision offsetting along radically different lines.

Specifically, I argue for modeling offsetting after a publicly-managed investment fund similar to

the GEF, the Montreal Protocol’s multilateral fund, and the earliest proposals for the CDM

itself.137 Such a fund would achieve emissions reductions through direct investment in clean

development projects. It would issue offsets backed by these emissions reductions to fund

contributors. In this way, projects would receive funds, and investors would receive offsets, but

the offsets would need to be traded only within the cap and trade system, as allowances are. This

structure, I argue, has the potential to reduce offsetting transaction costs while also improving the

environmental quality of emissions reductions investment decisions.

A. How fund-based offsetting could serve as a substitute for traditional offsetting
        At the core of a fund-based offsetting system would be an investment fund run by a

national government or the international public sector. The fund would collect money by

auctioning or selling offsets to capped entities within the cap and trade system. On a yearly

basis, the fund’s managers would disburse these monies directly to suitable projects in the form

of grants, low-interest loans, loan guarantees, or equity. Where existing offset mechanisms make

marginal clean development projects viable by inventing an abstract commodity, awarding the

commodity to projects, and creating a market for the credits, enabling the projects to generate a



        137
            The idea of replacing or supplementing the CDM with a fund-based approach is from Wara and Victor,
supra note 5. It was further developed in Ian Fein, et al., Submission of Calitopia in Laura Nielsen, Peter Pagh and
Anita Rønne, THE COPENHAGEN PROTOCOL ON CLIMATE CHANGE – AN INTERNATIONAL NEGOTIATION COMPETITION
(DJØF Publishing 2009) and Ian Fein, et. al, Clean Development Fund: A “Public Option” for Carbon Offsets,
HARVARD L. AND POLICY REV. ONLINE (10 Feb. 2010), http://hlpronline.com/2010/02/clean-development-fund-a-
“public-option”-for-carbon-offsets/.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


supplemental stream of offset income that allows them to attract loans, an offsetting fund would

reach the same result by simply investing in the project.




                                  Figure 4: Fund-based offsetting

       The fund’s investment would be supplemental to funding the project receives from other

investors. In fact, in its role as grantor or junior lender, the fund’s subsidy would increase the

return and decrease the riskiness of other investors’ contribution, meaning that fund-based

offsetting could use relatively small amounts of capital to leverage much larger investment

decisions.

       On the other side of the offset transaction, the fund would be able to issue offsets

corresponding to the amount of emissions reductions it stimulates with its investments. As under

the current CDM, these offsets would be tradable property rights with a compliance value

equivalent to that of emissions allowances. But unlike in the current system, the offsets would

be issued right at the “border” of the cap and trade system, making it unnecessary for

intermediaries to transfer the emissions rights from the project to the compliance buyer. This

system would work because the fund, like a single-payer health insurance system, would operate

as one enormous risk pool. Since all offset projects would already be pooled into the fund, there



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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


would be little incentive to pay private sector aggregators to help compliance buyers manage

risk.

        The specifics of the fund-to-offset conversion, however, implicate a number of different

design options, all of which have advantages and disadvantages. Table 3 summarizes the

characteristics of three such options. Under the first option, the fund could collect contributions

from offset investors in exchange for shares. The fund would use the money to invest in

projects, measure its results, and pay out offsets in proportion to each investor’s contribution to

the fund. The advantage of this system is environmental integrity. Offsets continue to be backed

by measured emissions reductions; if the fund achieves fewer emissions reductions than expected

in a given year, the number of offsets it awards decreases. The system’s disadvantage is that a

compliance buyer will not know ex ante how many offsets it will receive per dollar of

investment. This will make it costly for the buyer to plan its compliance strategy, and expose the

cap and trade system as a whole to price spikes in years where the fund’s performance is slow.

As under the current system, intermediaries might step in to absorb the risk by standing between

the fund and the compliance buyers; if they do, however, many of the features of the current

system will be replicated in the fund system. In fact, intermediaries may charge even more to

accept the risk under the fund system, as they will be less able to affect the performance of the

government-controlled fund than the performance of the projects they invest in under the

mechanism system.

        Another option would allow the fund to either auction or sell offsets before it makes the

investments that back up the offsets. The advantage of this system is that it offers compliance

buyers a riskless offset that can be easily purchased at a government “window,” eliminating the




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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


need for costly intermediation and risk moderation.138 The primary disadvantage of the system

would be a lack of environmental integrity. Each offset will no longer be backed by 1 tCO2 of

emissions reductions, because the fund might not succeed in achieving the requisite quantity of

emissions reductions. If it does not, the cap and trade system’s cap will creep upward as firms

meet their reductions obligations with “devalued” offsets. However, while this objection is well-

founded theoretically, I am not sure that it is true as a practical matter. As is evident from Part I,

it is far from clear that every CDM offset is currently backed by a ton of emissions reductions.

In fact, the CDM’s ton-for-ton offset accounting might be more of a charade that provides more

of a false sense of accuracy than an actual means of ensuring environmental integrity. If so,

what an ex ante sale model gives up might only be the impression of environmental integrity, not

environmental integrity itself. And recognizing the necessarily probabilistic nature of offsetting

might make offsetting safer in the long run by insulating it from sensationalistic “exposes” of its

failure to back up its claims to environmental integrity.139

         A third option is the ex post sale or auction of offsets. Like the “shares” model and the

current model, this model would issue offsets only after actually achieving emissions reductions.

However, this model would avoid the main problem with the shares model by allowing the fund

to sell or auction already-achieved, riskless offsets. The main sticking point for this “hybrid”

system is that it would need to get a head start on the cap and trade system as a whole, perhaps

by making investments during its first few years with money contributed by governments. After

that, the fund would each year sell or auction “last year’s” offsets.



         138
              This system would be especially attractive to compliance buyer if offsets were sold rather than auctioned.
The fixed price would operate as a set “safety valve” for the whole system, turning the cap and trade system into a
hybrid price/quantity instrument and re-assuring capped entities that their cost of compliance would not rise above a
certain level.
          139
              See, e.g. John Vidal, Billions wasted on UN Climate Programme, The Guardian (26 May 2008),
http://www.guardian.co.uk/environment/2008/may/26/climatechange.greenpolitics.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


       The three options also differ in their ability to generate the “supply response” that is a

feature of the present day system. Under mechanism-based offsetting, inside-the-system price

spikes inspire compliance buyers to increase their investment in offsets. This increases the

number of offsets available and reduces some of the upward pressure on prices. A shares or

fixed-price ex-ante fund-based offsetting system would likely accomplish essentially the same

thing. When prices climb, capped firms would contribute more to the fund or purchase a larger

number of offsets. As a result, the fund would use the additional money it collects to increase its

investments, resulting in more offsets during the next period.

       A supply response would also occur under an ex-ante sale, ex-ante auction, or ex-post

auction system, though perhaps to a lesser extent. In response to a demand spike, compliance

buyers would purchase the same number of offsets, but they would do so at a higher price. As a

result, the fund would collect additional money that it would use to increase its emissions

reductions. More emissions reductions would allow it to “back” more offset sales in the next

year, easing the supply crunch.

       An ex-post fixed price system, on the other hand, would not drive any supply response at

all. High demand without a variable price would result in a shortage of offsets without

increasing the revenue collected by the fund, meaning that the market would not “clear” and

offsets would have to be rationed.

       Of course, it is not entirely clear that a supply response is desirable in all cases. In both

the current system and any conceivable fund-based system, there would be a significant time lag

between increased offset investment and offset delivery. Currently, it takes 2-3 years from

initiation of an offset project to delivery of the first credits. Therefore, assuming the bounded

rationality of offset buyers mean that they do not effectively predict the future, then demand




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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


spikes may end up causing only volatility, not an effective supply response. High demand in one

period might lead to a supply glut in the next period. If so, the systems with relatively low

supply responses might be preferable—they would allow the government to rationalize and

moderate the inefficient “market” response to demand spikes.

       What is the bottom line of this multi-dimensional comparison of the options for

distributing offsets? None of the three options is clearly preferred; choosing between them

requires assumptions about the relative value of environmental integrity, supply response, and

price moderation. However, the analysis at least supports an assertion that a clean development

fund could be designed to provide offset investors with a compliance option that is comparable

to that offered by the present-day offsetting system.




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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


       Table 3: Characteristics of alternative design options for offset issuance by the Fund.
Characteri                                                                                            Ex ante Offset
                Current System          “Shares” Approach      Ex Post Offset Sale/Auction
   stic                                                                                               Sale/Auction

                                                                                                  Arguably bad. The
                                                                                                  Fund may not end up
             Arguably good. Credits issued only after emissions reductions achieved. On           achieving enough
Environ-
             the other hand, the additionality problem may mean that ton-for-ton                  emissions reductions
mental
             accounting may give merely the appearance of environmental integrity, not            to back each tCO2 of
Integrity
             actual environmental integrity.                                                      offset credit it sold
                                                                                                  with a tCO2 of
                                                                                                  emissions reductions.

             Bad. Capped entities will have to bear the
                                                               Good. Capped entities can purchase offset credit at a
Risk         risk of a variable per-dollar offset yield, or
                                                                 non-variable price directly from the government
Pooling      pay intermediaries to bear the risk by
                                                                                     window.
             standing between capped entities and Fund.

                                                               Arguably good if credits           Arguably good.
                                                               auctioned; arguably bad if         Whether credits are
                                                               credits are sold. If credits are   sold or auctioned,
                                                               auctioned, high inside the         high-inside-the-
                                                               system prices cause the Fund       system compliance
                                                               to collect more money per          costs will result in an
                                                               credit, allowing it to achieve     increase in offset
                                                               more emissions reductions          funding which will
             Arguably good. High inside-the-system             the following year and             moderate price in the
             compliance costs automatically stimulates         thereby moderating the cost        next period. Again,
Supply       increased investment in offset projects. But      of compliance. Again,              lag times may make
Response     as a practical matter, long lag times may         however, lag times may             this theoretical
             prevent the effectiveness of the supply           prevent the effectiveness of       supply response
             response.                                         the response. If credits are       ineffective in
                                                               sold at a fixed price, high        practice.
                                                               inside-the-system costs will
                                                               cause the fund to “run out of
                                                               credits.” Fund managers can
                                                               increase offset investment in
                                                               order to attempt to re-
                                                               balance, but there is no
                                                               automatic supply response.

                                                               If credits are auctioned,          Volatility may be a
                                                               volatility will may be a           problem, irrespective
             The supply response effect may tend to cause      problem. If credits are sold       of whether credits are
             unnecessary price volatility as temporary         at fixed prices, high demand       auctioned or sold at
Volatility
             demand spikes in one period lead to supply        in one period will not cause a     fixed price.
             gluts and price collapses in the next period.     supply response, making the
                                                               system naturally resistant to
                                                               volatility.




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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


B. How a fund-based architecture might be more efficient
       Having argued in the last section that fund-based offsetting could conceivable serve as a

substitute for mechanism-based offsetting, I turn in this section and the subsequent two sections

on why it might be a better system. The argument tracks the criticisms I leveled at the current

system above: this section argues that the fund would improve efficiency; the next tow sections

argue that it would improve risk management and environmental quality, respectively.

       Implementing a fund-based approach would involve the supersession of the hybrid

market-contract-firm system under which offsets are generated today with a more integrated,

management-heavy system. The costs and benefits of this switch can be understood in the NIE

vocabulary introduced above. For example, under the fund system is no longer any need for the

project to sell credits to capped firms or intermediaries through complex, structured transactions.

Like allowance credits, offsets are generated by the public sector and traded only “inside the

system,” not outside. Intermediaries may continue to broker credit transactions between the

government and capped firms if the participants find this service useful; however, as it will likely

be relatively easy for capped firms to buy credits directly at the government “credit window,”

these transactions are likely to be cheaper and less complex to structure. Similarly, placing the

decision to invest in projects under human management instead of allowing supply and demand

to send price signals that establish the attractiveness of future investments allows the fund to

economize on information acquisition costs. Where both consultants, regulators, and

intermediaries need to acquire information about a proposed project under the current project in

order to set its value through negotiation, in the managed system only the fund and possibly the

project’s consultant will need to acquire such information. The fund can use what it learns

throughout its multiple interactions with a project to efficiently estimate its riskiness and




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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


attractiveness of the investment. In the words of Ronald Coase, suppressing the market with

direct action can “save a lot of trouble.”

       But the switch to management is not likely to be an unmitigated blessing: NIE predicts

that fund system’s weakening of the market incentives that currently are supposed to discipline

carbon market participants has the potential to exacerbate the effects of the principal agent

problem. The usual concerns with bureaucracy, especially government bureaucracy, will apply.

Moreover, one of the advantages of the mechanism concept is the way that it uses investors’ self-

interest to ensure that funds flow to the projects that achieve the most mitigation per dollar. The

fund structure contains no such “invisible hand” discipline. In other words, there is nothing to

stop fund managers from making bad decisions, whether those bad decisions are the result of

willful political cronyism or a mere inability to compare all investments as effectively as a

decentralized market process.

       To a certain extent, this concern might be addressed with management structures internal

to the fund. Specifically, allocation of funds through a reverse auction process could rationalize

the award process. For example, each quarter, project developers could offer emission

reductions to the Fund at a price of their choosing. Imagine that a wind project in China may

offer 100,000 tCO2e of emission reductions in exchange for a €1m grant and a solar project in

Bolivia offers the same quantity of emission reductions in exchange for an € 800,000 grant. The

fund managers would rank the two projects (along with all other projects submitted) according to

the cost per tCO2e of their estimated emission reductions. As a result, the Bolivian project, with

a cost of $8/tCO2e, would be ranked ahead of the Chinese project, which offers reductions at

$10/tCO2e. The fund would award funding to projects in the order of their cost per tCO2e rank




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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


until its funds are exhausted. In this way, it would ensure that funds that continue to flow to the

projects that get the most “bang for the buck.”140

         In the end, whether the economies to the fund’s managed approach (namely, lower

contracting costs and information acquisition costs) and its ability to control principal agent

problems with internal management structures (the reverse auction) outweigh the diseconomies

that come with the supercession of market discipline and the price mechanism is an empirical

question, and one that is unfortunately beyond the scope of the paper. Nevertheless, NIE-based

reasoning is enough to suggest that a fund-based system could have certain efficiency

advantages, advantages that justify further exploration.

C. How a fund-based architecture might better manage risk
         Like a government-run health insurance system, the fund itself is a massive risk pool that

holds a number of different projects of various types, making its rate of actual credit production

less variable than that of a single project or of a smaller risk pool.141 It would presumably

eliminate the demand for separate risk mitigation services like the present-day aggregators whose

price spreads are the single largest transaction cost of using the CDM.

         Of course, some risk will remain. Would a fund-based reform would not eliminate the

risk of default so much as hide it by transferring it from the private sector to the public sector,

where it cannot be observed in the form of a price spread? The answer is that at least some risk

probably has been transferred to government, and that how much risk has been transferred likely




         141
             Of course, depending on system design, there still might be a role for carbon speculators that hold
credits with the intent to release them in the event of a price spike or banks that allow firms to borrow credits to
make it through a short-term period of high demand and tight supply. Such credit banking might be particularly
important in offset system that auctioned last year’s credits, because it could replace offsetting’s traditional supply
response function (see above). However, banking is likely to be a feature of allowance trading anyway, so it is not
so much a replacement for offset aggregation as a distinct transaction cost that exists irrespective of decisions about
how to design the offset market.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


depends in part on the design of the fund. For example, government auctions off ex-ante offsets

and then takes responsibility for achieving emissions reductions sufficient to back them up, it has

indeed taken on significant risk, for if its projects produce lower-than-expected emissions

returns, the system as a whole “loses” by achieving less climate change mitigation.

       That said, there is reason to believe that an obligatory risk pool will achieve risk

mitigation superior to than a constellation of private sector entities armed with sophisticated

derivatives and financial strategies. The need for risk shifting strategies in the present day

system can be thought of in part as a result of the fact that the system naturally places regulatory

and carbon price risk on two parties that have little interest in bearing those risks: regulated

developed-country firms and developing-country project developers. Because those participants

are not in the business of speculating on the carbon market, they naturally want to offload the

risk onto a party that is, a task that involves transactions, cost, and, quite possibly, the danger of

manipulation and other market failures. The fund system, by contrast, locates the risk on the

party that can bear it best: the public sector entity charged with both deciding where to direct

offset funding and with maintaining the integrity of the system.

       Moreover, there is also reason to believe that the transaction costs required to achieve the

same amount of risk mitigation are lower under the fund than under the current system. Because

the risk already sits on the shoulders of the entity ultimately charged with bearing it, there is no

need to for offset buyers and project developers to incur the search and intermediation costs

associated with transferring it. Nor is there a need for aggregators to conduct duplicative reviews

of project characteristics to estimate risk and negotiate an appropriate price. And there is no

need for speculators and financial engineers to design complex risk-reducing strategies. The




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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


public sector “automatically” achieves maximal risk reduction by enlarging the pool to maximal

size, and by establishing itself as the sole bearer of risk in the system.

D. How the Fund Could Improve Environmental Decisionmaking
        Above, I traced some of the concerns about offsetting’s environmental soundness to the

failure of the system design to do justice to the value of probity. The CDM, I said, outsources

too much regulation and cabins the role of regulation into an inappropriately small part of the

process. A fund model would address this line of criticism by re-casting the CDM’s passive

regulators as active fund managers, a change that would have at least three advantages.

        First, active managers would have the ability to compare projects side by side,

scrutinizing the claims of project developers. Indeed, project developers would compete for

funding, and fund managers would have the luxury of choosing only the projects that are most

environmentally sound, rather than approving all projects that purport to meet the CDM’s

substantive criteria.

        Second, fund managers would benefit from a holistic perspective. For example, in

making their yearly funding decisions, they could more easily take note of the fact that a large

percentage of Chinese power plants claim additionality, and re-calibrate their funding decisions

accordingly. And in responding to these observations, the active fund managers would be better

able to take advantage of “programmatic” approaches than passive regulators, because such

programmatic activities fit more naturally in the flexible, managed fund model than they ever

have in the mechanism model. For example, the fund managers could incentivize the Chinese

power plant sector by contracting with the Chinese government to set technology standards or to

limit the expansion of coal in certain regions.

        Finally, fund managers would be better able to correct design flaws on the fly. A fund,

for example, would not have overcompensated the HFC-23 developers. Instead, managers


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


negotiating a funding contract would have used relatively small grants to incentivize those

projects’ emissions reductions, giving them more funds to devote to other emissions reductions.

       These advantages, of course, are unlikely to eliminate the environmental concerns with

the CDM entirely. As many commentators have noted, the thorniest offsetting problem is the

difficulty of determining what emissions would have been in the counterfactual state of the world

in which the CDM did not exist. This problem is endemic to the idea of offsetting itself, and

cannot be eliminated by institutional reform. Nevertheless, the arguments for active

management presented here should at least give us reason to hope that a fund-based reform could

reduce the degree to which the counterfactuality problem is exacerbated by an institutional

design that limits the ability of the public sector to guard the integrity of the system.

       Therefore, while the absence of data on how a fund would actually perform makes it

difficult to set up a fair horse race between the fund idea and the mechanism idea, there is reason

to believe that a fund based system could accomplish what mechanism-based offsetting

accomplishes at a comparable price, but with superior risk management and more confidence-

inspiring environmental outcomes.


V. DO EXISTING PROPOSALS FOR NEW CAP AND TRADE PROGRAMS RECOGNIZE THE
        PROBLEMS WITH THE CURRENT CARBON MARKET’S STRUCTURE?
       In this final Part, I examine the drafts for the leading international and U.S. cap and trade

systems. In spite of the continued popularity of fund proposals for limited purposes within the

international regulatory regime, none of the major extant cap and trade systems contemplate the

wholesale replacement of the mechanism structure of the carbon offsetting industry with a fund-

based structure.




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              Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


A. International negotiations and the structure of the carbon market: the state of play at
Copenhagen and beyond.
       Many hoped that the COP-15 meeting in Copenhagen in late December, 2009, would

lead to an agreement on climate change that would replace the Kyoto protocol when it expires in

2012. Instead, the meeting served mainly to prove the intractability of the current stalemate on

climate change in the international arena, a stalemate that can be most succinctly explained by

ongoing disagreement between developed countries and rapidly industrializing countries.

       Developed countries want the world to reduce carbon dioxide emissions, and are willing

to commit to some level of reductions, at least under certain circumstances. There are some

significant tension among these countries, with Europe particularly interested in trading higher

emissions reductions pledges for more aggressive commitments by other countries, and the U.S.

more interested in ensuring flexibility and preserving national sovereignty. At Copenhagen,

Europe pledged a 20% reduction by 2030 but would go up to 30% if other nations do so too.

The United States pledged a 17% reduction.

       This intra-developed tension, however, takes a back seat to the desire of the developed

world as a whole to convince rapidly industrializing nations to commit to emissions reductions.

China alone is the world’s largest carbon emitter. Together with India, Brazil, and a number of

medium-sized nations, the industrializing world is a very significant contributor to climate

change, and will be an even more significant contributor if it continues to grow. These nations,

however, tend to prioritize economic growth over environmental safeguards, and resist making

pledges that they fear will hamper their continued development.

       In the debate between the developed countries and the developing countries, the

developed world’s favorite point is a practical one: climate change, they say, simply cannot be

stopped unless all countries commit to significant reductions. The developing world’s favorite



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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


point is a moral one: how can developed nations, whose own industrialization process is the

source of the global warming problem, shut the door behind them now that they reached a post-

industrial level of development?

         The role that offsets play in this debate is primarily that of a carrot offered by the

developed world to the developing world in exchange for commitments or participation. By

measuring offsets against developing countries business-as-usual baseline, Kyoto essentially

made emissions an asset rather than a liability on the balance sheets of all developing

countries—they stood to gain by reducing emissions, but could not lose by increasing emissions.

The current state of play preserves this phenomenon, but tends to divide developing nations into

at least two groups. Least developed nations would still continue to be eligible for offset revenue

without having to accept a binding emissions limitation, and offsetting remains an important

means of securing the support and participation of these nations. Rapidly industrializing nations

might continue to be allowed to sell offsets and will almost certainly benefit from other funding

carrots (see below),142 but the value of these carrots only partially offsets the negative value of

having to undertake emissions reductions on their own account. This means that the rapidly

industrializing nations continue to support offsetting, but that they are more concerned with

investing their negotiating power in shaping a favorable targets scheme.

         Moreover, offsetting is not the only piece of the climate change regime that can play the

“carrot” role in climate negotiations—a number of mechanisms for transferring funds from

developed to developing countries within the climate change regime. These transfer mechanisms



         142
            All else being equal, they would clearly prefer to continue to be eligible for offsets and other funding,
because they are a benefit that partially offsets the cost of emissions commitments. See National Development and
Reform Commission of the People’s Republic of China, Implementation of the Bali Roadmap: China’s Position on
the Copenhagen Climate Conference (May 20, 2009), http://en.ndrc.gov.cn/newsrelease/t20090521_280382.htm
(supporting a “long lived” Kyoto protocol and indicating that developed country financing of developing country
emissions reductions should continue.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


collectively travel under the name “financing issues,” and include ideas like funding for

adaptation to the harmful effects of climate change, funding for avoiding deforestation (a major

cause of climate change), proposals to earmark funds from allowance auctions for investment in

developing countries, voluntary funding mechanisms like the GEF, and bilateral or multilateral

aid administered via traditional international development channels like the US Agency for

International Development or the World Bank.143 Negotiation over a funding system for avoided

deforestation (a task that has been left out of the CDM out of concerns about the special

challenges with measuring emissions reductions from forestry) have been particularly important

in recent years, and the debate over how to do so implicates many of the issues discussed in this

paper. Some proposals envision a project-based mechanism similar to present-day offsetting,

others envision a publicly administered system that would compensate governments for climate-

friendly land use policies, and still others see avoided deforestation as merely a means of

complying with binding emissions limitations.144

       In the run-up to Kyoto, participating nations floated a number of different proposals for

offsetting and other finance mechanisms. Many of these proposals took the form of multilateral

funds, but none proposed replacing the current offsetting architecture with a fund-based

structure. Some form of adaptation fund was taken for granted by most parties (indeed, such a

fund was contemplated already in the Kyoto Protocol, though it has yet to get off the ground).

Others focused on funds that would mobilize investments in emissions-reducing technological

innovations rather than investment in emissions reductions themselves.145 None of these



       143
             See The Pew Environment Group, Climate Change 101: Climate Finance,
(http://www.pewglobalwarming.org/copenhagen/PEWG20Finance.pdf.
         144
             See generally ERIN C. MEYERS, POLICIES TO REDUCE EMISSIONS FROM DEFORESTATION AND
DEGRADATION (REDD) IN TROPICAL FORESTS (Resources for the Future 2007).
         145
             See SMITA NAKHOODA, CATALYZING LOW CARBON DEVELOPMENT? THE CLEAN TECHNOLOGY FUND,
(World Resources Institute), http://pdf.wri.org/working_papers/development_clean_technology_fund.pdf.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


proposals aimed to completely replace the present offsetting system. The rhetoric surrounding

Mexico’s $10 billion “green fund” proposal came the closest to recognizing the ideas presented

in this paper—President Calderon suggested that "The current carbon credits…are not an

efficient mechanism…[because the system]…has to match an industry that wants to pollute with

another" industry that wants to undertake emissions-reducing projects146 —but even this proposal

was intended to supplement the existing market-based offsetting system, not displace it.

         Europe put together a comprehensive negotiating position147 on the finance issues that

illustrates how offsetting might fit together with the other “carrots” under consideration. The

position contemplated the gradual eclipse of market-based carbon offsetting by a “sectoral”

approach that would award credits based on firms’ compliance of technology standards, fixed

emissions baselines, or per-output emissions baselines.148 The degree to which this sectoral

approach would be a departure from the current offsetting system would depend which of the

many different sectoral options on the table that parties eventually agreed to. Europe’s proposal

also contemplated that public transfer of funds would supplement the carbon market and sectoral

transfer of funds. This public sector funding, it said, could come through a multilateral fund,

though it indicated that it preferred that its own portion come directly out of the E.U. budget.

        When all of the interests and ideas discussed above met at the crucible of the Copenhagen

meeting, however, the delegates’ inability to reach agreement on the emissions targets issues

prevented them from dedicating much time to the funding and offsets issues. As expected, the

U.S. and Europe opened with generous “carrots,” the most notable of which were large


        146
              Mark Stevenson, Mexico: “Green Fund” better than Carbon Credits, ABC News (June 22, 2009),
http://abcnews.go.com/International/wireStory?id=7903715.
          147
              COMMISSION OF THE EUROPEAN COMMUNITIES, STEPPING UP INTERNATIONAL CLIMATE FINANCE: A
EUROPEAN BLUEPRINT FOR THE COPENHAGEN DEAL (2009),
http://ec.europa.eu/environment/climat/pdf/future_action/com_2009_475.pdf
          148
              See generally Martina Bosi and Jane Ellis, Exploring Options for Sectoral Crediting Mechanisms
(OECD 2005), http://www.oecd.org/dataoecd/55/61/34902644.pdf.


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


commitments to a vaguely-sketched “green fund” that would benefit developing nations. The

large size of this fund was intended to entice China and the rest of the developing world to accept

aggressive, binding emissions targets. China, India, and the other members of the G-77,

however, did not accept the bargain. After refusing emissions targets for itself, China reportedly

went one step further, demanding that the developed world water down its own targets, a move

that was variously interpreted in the Western press as either a Machiavellian effort to make

developed countries take the blame for the failure to achieve effective climate change mitigation

or a pragmatic effort to ensure that China itself will not be bound if economic growth raises it to

developed-country status several decades from now.149

         The final text of the main agreement was a collection of vague gestures at agreement with

few specific emissions commitments or timetables.150 A separately-published decision on the

CDM addressed a number of relatively un-controversial administrative matters but did not

change the eligibility rules or articulate a vision for what carbon offsetting would look like in a

post-Kyoto world.151 The decision on crediting procedures for land use and avoided

deforestation was even less detailed.152

         Interestingly, the most concrete new feature to emerge from the Copenhagen negotiations

was the “green fund,” which largely survived the developing-developed world tension that

         149
              See Mark Lynas, How Do I Know China Wrecked the Copenhagen Deal? I Was in the Room, The
Guardian (Dec 22, 2009) http://www.guardian.co.uk/environment/2009/dec/22/copenhagen-climate-change-mark-
lynas.
          150
              UNFCCC, Copenhagen Accord, Decision -/CP.15 (advance unedited version),
http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf
          151
               UNFCCC, Further guidance relating to the clean development mechanism, Draft decision -/CMP.5
(advance unedited version) http://unfccc.int/files/na/application/pdf/cop15_ddc_auv.pdf. Most notably, the decision
requested that the EB tweak a number of crediting rules to improve additionality determinations while favoring
under-represented project types, authorizes the EB to set up systems that would favor projects in the least developed
countries that currently receive little CDM funding, and requested that it set up an appeals mechanism for
stakeholders who are denied project registration.
          152
               UNFCCC, 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, Draft decision -/CMP.5 (advance unedited version),
http://unfccc.int/files/na/application/pdf/cop15_ddc_auv.pdf.


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                Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


stripped the teeth out of the rest of the agreement. The final blueprint for the plan commits

developed nations to transfer $30 billion a year from 2010-2010 and $100 billion a year by 2020

to the developing world. However, it is not clear whether this $100 billion will be additional to

the money provided via the carbon offsets market or not (currently the carbon market provides

$5-$10 billion a year, but it will likely contribute much more if the US implements targets and

Europe tightens its targets).153 To the extent that it is additional, it is not clear whether it will be

administered via a multilateral fund or via national aid budgets, nor whether an offset-like

system will encourage developed-country firms to pay into the fund. In any case, it seems likely

that developed nations will seek to use the elaboration of the details of the “Copenhagen

Fund”—a task that will take place over a number of future UNFCCC meetings—to extract the

developing country commitments that eluded them at Copenhagen.154

        If, however, the international negotiators become interested in the more technocratic

problems discussed in this paper, the Copenhagen Green Fund commitments do give them an

excellent opportunity to steer a course toward a fund-based offsetting system. They would do

well to return to the rhetoric with which Mexican President Felipe Calderon introduced Mexico’s

green fund proposal, one of the earliest direct ancestors of the final Copenhagen fund. By

recognizing the flaws with the current, market-based approach to offsetting, they could use the

Copenhagen green fund commitments to demonstrate the efficacy of a fund-centered approach.

If the fund-based approach turns out to be successful, it will attract attention, and naturally tend

to expand at the expense of the old system.




        153
             James Kanter, “Copenhagen’s One Real Accomplishment: Getting Some Money Flowing,” New York
Times, (Dec. 20, 2009), http://www.nytimes.com/2009/12/21/business/energy-environment/21iht-green21.html
         154
             For example, see “Copenhagen “Green Fund” depends on a Climate Deal – EU,” Reuters, (Feb 24,
2010) http://in.reuters.com/article/worldNews/idINIndia-46441220100224.


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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


         That said, it is important to put the significance of the Copenhagen green fund—as well

as Copenhagen’s failure to consider a re-design of the CDM—in the larger context of the

emerging patchwork climate change regulatory regime. Currently, funding for CDM offsets

comes from the firms bound by the national-level cap and trade systems that nations have used to

implement their Kyoto obligations, not by nations bound by the Kyoto system itself. Therefore,

a carbon markets reform that addresses the structural concerns discussed in this paper need not

come at the international level. It is plausible that international negotiations will end up setting

the national-level targets that ultimately determine the demand for and supply of offsets,155 but

that the means by which those offsets are created and traded will become a matter for the

regulatory regimes established by the law that nations and sub-national regions use to “hit” these

targets. Indeed, the prominent use of fund proposals instead of offset proposals as carrots at

international climate meetings may be partially explained by the fact that carbon markets are

already considered somewhat beyond the scope of the international agreement.

B. National/Regional Cap and Trade Systems and Carbon Market Structure
         Therefore, I turn in this section to the national and regional legal authority governing

offsetting. I discuss in turn the EU’s ETS cap and trade program, the most prominent existing

proposal for a US can and trade system, a recently-defeated Australian system, and two U.S.

regional systems.

1. Europe’s EU ETS
       The EU-ETS is a cap-and-trade system binding on certain industrial sectors in all

countries within the European Union. It is by far the largest current source of funds for

offsetting.




         155
           All else being equal, stricter developed country targets increase the demand for offsets; stricter
developing country targets tighten their supply.


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                  Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


         Europe has imposed quantitative limits on the number of CDM offsets that a firm can use

to meet its obligations under the EU ETS. Specifically, the quantities are to be set by each

country’s “national allocation plan,” subject to the general guidance that they be “supplemental”

to domestic action, which is to be “a significant element of the effort made.”156

         However, the Europe has not attempted to limit the types of projects allowed into its

system.157 Nor has it moved develop an administrative system that would serve as an alternative

to CDM certification of offsets. In fact, a 2008 draft proposal specifically contemplated the

possibility that international negotiations would fail to provide for the continued operation of the

CDM, but nevertheless declined to plan for a replacement mechanism. Rather, the proposal

specified that in the absence of continued operation of the CDM, the use of CDM-derived credits

would be limited to credits “banked” already by EU ETS participants.158

2. U.S. Federal Legislation
        The leading U.S. federal cap and trade program is the Waxman-Markey bill, which

passed the House of Representatives but not the Senate in 2009. The size of the U.S. economy

and the expected heavier reliance on offsetting as compared with the European system would

likely make the U.S. system an even larger source of offset funding than the European system.159

         Whether the U.S. system would take a more activist role in structuring carbon markets is

difficult to determine. Sections § 728 and § 743(d)(1) of the Waxman Market bill would give the

EPA discretion to make rules allowing the use of emissions allowances and offsets from



         156
              Directive 2005/101/EC of the European Parliament and of the Council (27 October 2004),
http://www.climatefocus.com/newspubs/downloads/8CarboncreditsunderEUETSIII1_May_2008.pdf.
          157
              It has acted to prevent the use of credits from nuclear projects and land use/forestry projects, those such
credits are not common in the CDM anyway. Id.
          158
              See “Treatment of CDM/JI Credits According to the EU ETS Amendment Proposal,” Climate Focus
(May 1, 2009), http://www.climatefocus.com/newspubs/downloads/8CarboncreditsunderEUETSIII1_May_2008.pdf
          159
              See US Environmental Protection Agency, EPA Analysis of the American Clean Energy and Security
Act of 2009 H.R. 2454 in the 111th Congress (June 23, 2009),
http://www.epa.gov/climatechange/economics/economicanalyses.html.


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                Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


qualifying international programs.160 In addition, however, § 731 provides that the EPA is to

promulgate detailed offset requirements in conjunction with an “Offsets Integrity Advisory

Board.” These rules must ensure that offsets represent emissions that are “additional and

verifiable” and measured by reference to additionality and baseline methodologies to be

established by the EPA161. Offset developers are to submit petitions to the EPA, which approves

them if they apply with its requirements.162 A separate certification track, also administered by

the EPA, would allow the use of credits from sector-wide and avoided deforestation (REDD)

activities in developing countries.163 This type of offsetting is not yet available under the CDM,

but its expected low cost per unit of emissions reductions could ultimately make it more

important than the industrial and clean energy projects that dominate offset markets today.

        Therefore, the bill contains enough flexibility to countenance a variety of different

approaches: it might continue to defer to the CDM system, duplicate the basic features of the

CDM’s market-based mechanism model under U.S. administrative supervision, or adopt a

radically different paradigm such as the one proposed by this paper. For the time being, all that

can be said with certainty is that no language in Waxman-Markey appears to contemplate fund-

based offsetting, but neither does any language explicitly foreclose it at as a possibility. In the

end, the shape of the system could well turn on administrative rulemakings by the EPA and the

USDA.

3. Australia’s legislative effort
        Australia has also been in the process of developing climate change legislation, though its

legislature voted not to adopt a bill 2009, and the prospects of a replacement bill are currently

        160
             U.S. House, 111th Congress. H.R. 2454: The American Clean Energy and Security Act, H.R. 2454 (Jul.
7, 2009 text as placed on calendar of Senate after passage by House),
http://www.govtrack.us/congress/billtext.xpd?bill=h111-2454.
         161
             Id., § 732(b); 734
         162
             Id., § 735-737.
         163
             Id., § 743


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                 Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


uncertain.164 Like the U.S. bill, the Australian bill would have allowed CDM offsets into the

system subject to Administrative regulations.165 Interestingly, the opposition’s alternative

proposal reportedly contemplated a larger role for offsets and forestry-related reductions.166

4. The Regional Greenhouse Gas Initiative
       Two U.S. regional cap and trade systems are also under development. The Northeast’s

Regional Greenhouse Gas Initiative (RGGI) aims to reduce power sector emissions by 10% by

2018.167 In allows five different types of offsets: afforestation, energy efficiency in the building

sector, methane capture, avoided methane emissions, and avoided sulfur hexafluoride emissions

in the power plant sector. RGGI itself imposes general requirements on offsets that mirror the

CDM additionality requirement, though participating states are also allowed to impose additional

requirements. The structure of the system is, like the CDM system, a market-based mechanism.

Projects apply to independent validators for certification of their project, and then sell offsets to

capped entities. However, commentators predict that the system’s relatively modest emissions

targets will lead to little demand for offsets.168

5. California’s A.B. 32
        California’s Assembly Bill 32 (A.B. 32) established a second climate change regime

within that state.169 The bill requires California’s Air Resources Board to make regulations that

reduce statewide carbon dioxide emissions to 1990 levels by 2020. Regulations are under

development for a number of sectors, including transportation, refrigerant manufacture, and
        164
              Toni O’loughlin, “Australian Senate defeats carbon trading bill,” The Guardian (Dec. 2, 2009),
http://www.guardian.co.uk/environment/2009/dec/02/australia-senate-defeats-carbon-trading-bill
          165
              The Parliament of the Commonwealth of Australia, Carbon Pollution Reduction Scheme Bill 2009
(Third Read) § 113(1),
http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r4127_third/toc_pdf/09091b01.pdf;fileType=applicatio
n%2Fpdf
          166
              David Fogerty and Rob Taylor, “Australia opposition eyeing voluntary CO2 cuts plan,” Reuters (Jan 28,
2010), http://sites.thomsonreuters.com.au/carbon/2010/01/australia-opposition-eyeing-voluntary-co2-cuts-plan/.
          167
              Regional Greenhouse Gas Initiative website, http://www.rggi.org/home.
          168
              “ANALYSIS-Climate bill setback forces clean development rethink,” Reuters (Jan. 22, 2010),
http://news.alibaba.com/article/detail/energy/100237127-1-analysis-climate-bill-setback-forces-clean.html.
          169
              California Air Resources Board, Assembly Bill 32: Global Warming Solutions Act,
http://www.arb.ca.gov/cc/ab32/ab32.htm.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


power supply. A cap and trade program is likely to be a major part of the initiative, and

California may work with several other Western States to establish a regional system. Offsets

are likely to be allowed into this system, and existing documentation appears to contemplate a

market-based mechanism similar to the CDM,170 but final regulations have not yet been passed.

6. Concluding Observation
       Taking all of these international, national, and sub-national developments together, it is

evident that there is little concern for the problems presented in Part III of this paper, and little

momentum for reforms to the market-based structure of offsetting under the present day system.

Most of the political and policymaking action on climate change is currently centered on first-

order questions about the distribution of responsibility for climate change, rather than relatively

technicalistic questions about how to fine-tune compliance with those responsibilities.


                                            CONCLUSION
      I have argued that the task of channeling funding from capped entities toward worthy un-

capped emissions reducing projects requires robust public sector involvement. Replacing the

Rube Goldberg-esque tradable property rights system under which offsetting is presently

conducted with a managed system, I argued, could yield superior efficiency, better management

of catastrophic risk, and more confidence-inspiring environmental outcomes.

      What, then, explains the fact that international and national policymakers consistently

prefer the market-based mechanism model? As a political matter, a fund-based reform faces at

least two big hurdles. First, the political power of current carbon markets participants may make

it difficult to jettison the mechanism concept. The International Emissions Trading Association,

a lobby organization supported by intermediaries and other carbon market participants, is an
        170
           See Lucille Van Ommering, Use of Offsets in Cap and Trade (CARB 2008),
http://www.energy.ca.gov/ghg_powerplants/documents/2008-11-19_workshop/presentations/2008-11-
19_ARB_AB32_and_Offsets.pdf.


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               Tyler McNish – Professor Steve Weissman – Writing Requirement – March 2010


influential voice in the international debate. Similarly, investment banks and other financial-

sector firms have a strong capacity to influence decisions in Washington D.C. Second, debate

over the management of the fund is likely to be extremely controversial. Within the United

States, many will object to government-directed investment. At the international level, the

management question will likely provoke tension between the developed and developing worlds.

Annex I nations will want to control the Fund, since they are the source of its funds, but non-

Annex I nations will want control over the Fund in order to ensure that funding is targeted to

their developmental priorities.

     In a larger sense, though, the biggest difficulty that the ideas presented in this paper face

may be a more generalized one: policymakers’ deep-seated appreciation for market instruments.

The aim of this paper has been to illustrate one example of how fidelity to the market romantic

vision combined with lack of attention to how how real markets work can lead to bad

policymaking. We value markets power to spontaneously coordinate economic activity so

highly that we have expended a lot of money, creative thought, and (ironically non-spontaneous)

effort on making markets work in a context for which they were never appropriate. Attention to

the motivations and activities of actual market participants in the offsetting industry—the kind of

attention that Adam Smith paid to his butcher, baker, and brewer and that Hayek paid to his

government planners—counsels a larger role for the public sector.




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