KyotoImplicAmyBartling docx by B3JK6W

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									                                      Kyoto: Real World Implications

                                              By: Amy Bartling



                                                I. Introduction

        The Kyoto Protocol was initially designed to be a world-wide solution to the greenhouse

gas emissions problem. By setting a time frame and greenhouse gases reduction mandates, the

framers of the Kyoto Protocol imaged every developed country ratifying the protocol and

helping developing nations become greener as the opportunities presented themselves.

Additionally, the Kyoto Protocol goal was to create cleaner technology to be sustainable for

future generations without facing the same problem we are facing today – the warming of the

Earth’s surface temperature at a high rate.

        However, the Protocol has not been met with as much excitement as initially thought.

The United States has still not signed the Protocol and it took a change in Australian political

power to ratify the Protocol and make it a national policy.1 Additionally, many countries have

not yet met their reduction goals and few are on track to meet them by the specific date.2 With

2012 coming fast upon us, it is important to reflect back and examine the effects of the Protocol

and the rationales for the United States staying out of the Protocol, as well as what can be done

in 2012 to ensure the goals of the Protocol are met and the greenhouse gases emissions problem

is managed for future generations.

        This analysis provides an overview of the Kyoto Protocol, explains how the Protocol

works with all countries involved, explains why the United States did not sign the Protocol,

1
  CBC News. UN Climate Change Conference Hails Australia Kyoto Signing. December 3, 2007, located at
http://www.cbc.ca/world/story/2007/12/03/un-climate.html. Last viewed on October 15, 2008. (Kevin Rudd of the
Labor party of Australia ratified the Protocol as one of his first actions in office.)
2
  Yandle, Bruce & Stuart Buck. Bootleggers, Baptists, and the Global Warming Battle. 26 Harv. Envitl. L. Rev. 177,
2002.

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including an economic analysis, and the other major players in the fight against global warming.

The Protocol has very good intentions for the parties who are following the rules, regulations,

and goals to impact greenhouse gas emissions, but it may not be enough to sustain environmental

change throughout the developed and developing world.

                                            II. The Kyoto Protocol

A. United Nations Framework Convention on Climate Change (UNFCCC)

        The UNFCCC was an agreement was formed in 1992 when various country leaders met

in Rio de Janeiro (Earth Summit) to deal with the increasing greenhouse gas emissions

throughout the world.3 The meeting formed an international treaty to stabilize GHG emissions to

stop the human impact on global warming. On June 12, 1992, 166 nations signed the

international treaty that focused on reducing carbon emissions among industrialized countries of

the world.4 The treaty didn’t come into effect until March 21, 1994, which mandated annual

meetings to discuss climate change.5 The United States signed the UNFCCC under George

H.W. Bush and was the jump start for the formation of the Kyoto Protocol.6

B. The Kyoto Protocol

        The Kyoto Protocol was set up to incorporate countries throughout the world, whether

they are developed or developing. The Protocol was introduced in 1997 during a meeting in

Kyoto, Japan, and where all countries originally signed on to show support for the Protocol. 7


3
  United Nations Framework Convention on Climate Change (Hereafter UNFCCC). Status of Ratification. Viewable
at http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php. May 9, 1992, S. Treaties
Doc. No. 102-38 (1992). Last viewed on on November 17, 2008.
4
  Id.
5
  UNFCCC. Convention. Viewable at http://unfccc.int/essential_background/convention/items/2627.php. Last
viewed on on November 17, 2008.
6
  Justus, John R, & Susan R. Fletcher. Global Climate Change. CRS Issue Brief for Congress, Resources, Science,
and Industry Division, pg. 1. Updated March 27, 2002. Viewable at
http://fpc.state.gov/documents/organization/9549.pdf. Last viewed on November 22, 2008.
7
  The Kyoto Protocol, Article 25. December 10, 1997, 37 I.L.M. 22 (1998), entered into force Feb. 15.
2005.Viewable at http://unfccc.int/resource/docs/convkp/kpeng.html. Last viewed on October 28, 2008.

                                                                                                                  2
However, it took many years for enough countries to ratify the Protocol for it to become a

document that had significant meaning to countries. The Protocol came into effect on February

16, 2005.8

        The Kyoto Protocol requires all countries that ratified the Protocol to reduce carbon

emissions to five percent (5%) below the country’s 1990 levels.9 This goal was intended to be

reached through new clean technology and by carbon trading among countries.10 In order for the

Protocol to be fully implemented, fifty-five (55) countries had to ratify the Protocol and those

countries had to make up at least fifty-five percent (55%) of the world’s total carbon dioxide

emissions in 1990.11 When the last country to sign the Protocol met both the fifty-five country

and fifty-five percent requirements, the Protocol would become effective ninety (90) days from

that date.12 The Protocol met the fifty-five-country requirement when Iceland ratified the

Protocol on May 23, 2002, but had to wait until Russia ratified the Protocol on November 18,

2004, to meet the fifty-five percent of greenhouse gas emissions requirement. 13 When Russia

ratified the Protocol, the ninety-day countdown to the implementation of the Protocol started,

making the Protocol effective as of February 16, 2005.14 As of May 2008, 181 countries and the

European Union were parties to the Protocol.15

        The Kyoto Protocol distinguishes developed from developing countries. Developed

countries are the only countries that have forced mandates if the country ratifies the Protocol,
8
  BBC News. Start Date Set for Kyoto Protocol. November 18, 2004. Viewable at
http://news.bbc.co.uk/2/hi/europe/4022283.stm. Last viewed on October 3, 2008 (Russia ratified the Protocol,
making it a legally binding treaty which comes into effect on February 16, 2005.)
9
  The Kyoto Protocol, Article 25. Viewable at http://unfccc.int/resource/docs/convkp/kpeng.html. Last viewed on
October 4, 2008. (Listing the requirements for making Kyoto legally binding.)
10
   Id.
11
   Id, Article 25 paragraph 1.
12
   Id.
13
   BBC News. Start Date Set for Kyoto Protocol. Supra note 8.
14
   Id.
15
   Kyoto Protocol. Status of Ratification. Last modified October 16, 2008. Viewable at
http://unfccc.int/files/kyoto_protocol/status_of_ratification/application/pdf/kp_ratification.pdf. Last viewed on
November 2, 2008. (Lists various countries that have signed and ratified the Protocol.)

                                                                                                                    3
leaving developing countries to contribute to the efforts to reduce global warming as they choose

to do so.16 This has been a criticism of the Protocol because developing nations have the ability

to not reduce greenhouse gas emissions by any percentage as they work toward becoming

“developed.” Developed countries are those seen to be stable economically and the

“powerhouses” of the world. Developed countries are forced to reduce greenhouse gas

emissions because they are able to do the research and implement new technology to reduce

greenhouse gas emissions. The developing countries are encouraged to work on carbon emission

reductions but are not forced to reduce carbon emissions because of the economic status of the

countries.17 However, developing countries can still be a major player in the reduction of carbon

emissions throughout the world by participating in joint implementation.

        Joint implementation is a procedure where developed countries sell carbon emission

credits to other developed countries through processes monitored by the United Nations.18

Article Six of the Protocol allows developed countries to buy extra carbon credits from other

developed countries in order to gain carbon unit credits.19 A developed country can gain

economically by selling carbon credits to developed countries. The United Nations monitors this

process to ensure the developed country is donating money to a company program that will work

to reduce carbon emissions or produce green energy and further that the carbon units sold by the

country are of equal volume to the carbon units being purchased by the developed country.20

When the developed country purchases a unit of carbon from another developed country, that

developed country has “reduced” carbon emissions because it is allowed to emit more by having



16
   The Kyoto Protocol. Article 11 paragraph 2. Supra note 7.
17
   Id.
18
   Id at Article 6.
19
   Id at paragraph 1 (a) – (d).
20
   Id.

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more carbon credits belonging to the country but emitting the same amount of carbon.21 For

example, if Morocco had extra carbon units available, Morocco could go through the United

Nations to sell carbon credits to France. France would invest money in the Moroccan economy

by supporting solar energy production or forest creation and be able to purchase carbon credits.

France would then be able to continue to release carbon units into the air at the same rate while

reducing total carbon emissions because of the extra carbon credits the country has purchased

from Morocco.

         The one limitation of joint implementation is that only developed countries that have

ratified the Protocol are allowed to participate in this carbon trading system.22 The United States

cannot invest large amounts of money in green energy programs and sell carbon units to

developed countries that have ratified the Protocol to gain financially. This isn’t to say the

United States cannot participate in carbon trading, but that the United States would have to sell

the carbon credits independently of the Protocol. Joint implementation is a good way for

developed countries to reduce carbon emissions without having to invest large amounts of

money in how companies operate or change how certain types of energy are produced.

         Another way for countries to reduced carbon emissions is by developed countries

working with developing countries. Developed countries can work with each other to reduce

carbon emissions through clean development mechanisms.23 Developed countries can reduce

carbon emissions by creating new technology that reduces the amount of carbon released into the

air and focuses on real and measurable benefits related to the mitigation of climate control. The

CDM would be placed in a developing country but sponsored by a developed country and



21
   Id.
22
   Id at Article 6, paragraph 1.
23
   Id at Article 12, paragraph 3.

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monitored by the CDM Executive Board.24 The CDM’s must be programs that would not have

happened without the developed countries dedication to the project – it wasn’t a “free rider”

environmental project.25 The country that developed the CDM will get credit for a carbon

reduction that is the difference between the emissions that would have been produced without the

project and the emissions the project produces.26 This makes many programs that are approved

good investments for developed countries because they are going to continually gain carbon

credits and invest in the future market of clean technology.27

        One of the major criticisms of the CDM program is the area of forestation – whether

money invested in keeping forests as they are and that anti-deforestation programs will get

enough of a carbon credit allowance to encourage their production.28 Another criticism is the

indication of “false credits” being issued for some programs. However, because the CDM has to

be approved by the Executive Board, the risk of the program not being environmentally positive

is lowered since the CDM has to be a project that would not happen if not for the interested

developed country.29

C. Faults of the Protocol

        While the Protocol has good intentions, it also has a few faults. The United States and

Australia are developed nations who refused to ratify the Protocol that had originally signed on




24
   Id at paragraph 4.
25
   Id at paragraph 5(c).
26
   Id.
27
   Id at paragraph 2.
28
   UNFCCC. An Introduction to the Kyoto Protocol Compliance Mechanism. Viewable at
http://unfccc.int/kyoto_protocol/compliance/introduction/items/3024.php. Last viewed on October 20, 2008.
29
   The Kyoto Protocol. Supra note 23.

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to the Protocol in 1997. 30 Australia has since ratified the Protocol. It became effective in the

country on December 3, 2007.31

        Another fault is that developing countries have no mandatory reductions under the

Protocol but often have high percentages of carbon pollution. These countries are left out of

mandates even if they ratify the Protocol. China has recently overcome the United States to

become the biggest polluter in the world, yet has no restrictions on the amount of greenhouse

gases the country puts into the air because of the “developing” status. 32 China is expected to

continue to grow and emit greenhouse gases and many believe putting requirements on China’s

emissions is essential to have an effective fight against global warming.33

        The Protocol has a goal of creating a network among developed and developing countries

to reduce global greenhouse gas emissions by 2012. However, without the ratification by the

United States and the difficulties some countries have encountered, the Protocol’s goals may not

be fully met by 2012.34

                           III. Why the United States Did Not Ratify Kyoto

        The United States signed onto the Protocol during President Clinton’s administration but

never fully ratified the Protocol because of resistance from the Senate.35 President Clinton

promoted the Protocol by claiming through efficient incorporation of international carbon

trading, joint implementation, and clean development mechanisms the costs of implementing the

30
   Greenpeace, Australia Pacific. About the Kyoto Protocol. Viewable at
http://www.greenpeace.org/australia/issues/climate-change/solutions/political/kyoto-protocol. Last viewed on
October 14, 2008. (Explains what countries have signed and not ratified the Protocol.)
31
   BBC News. Rudd Takes Australia Inside Kyoto. December 3, 2007. Viewable at
http://news.bbc.co.uk/1/hi/world/asia-pacific/7124236.stm. Last viewed on October 4, 2008.
32
   Vidal, John & Adam, David. China Overtakes US as World’s Biggest CO2 Emitter. Guardian, June 19, 2007.
Viewable at http://www.energybulletin.net/node/31156. Last viewed October 17, 2008.
33
   Id.
34
   Yandle, Supra note 2.
35
   Yellen, Janet. U.S. Senate Committee On Energy and natural Resources, Hearing on Economic Impacts of Kyoto
Protocol. March 25, 1999. Viewable at http://www.gcrio.org/OnLnDoc/senate_energy990325.html. Last viewed on
October 22, 2008. (Yellen was giving testimony to the Senate about President Clinton’s support of Kyoto.)

                                                                                                            7
Protocol would be minimal.36 However, President Clinton could not get the Protocol ratified by

the end of his term and President Bush was quick to reject the Protocol because of the economic

reasons and the lack of forced reductions on developing countries.37

        President Bush believed implementing the Protocol would not be a suave economic move

for the United States.38 Making the Protocol a valid document in the United States would

arguably have cost United States companies a large amount of money to switch to

environmentally friendly emissions and force many of the major energy producing companies to

invest money in different environmentally friendly areas, which was another basis for President

Bush’s decision.39 Considering the arguments for renewable energy, it is important to analyze

why the United States did not ratify the Protocol. However, there is still an ongoing debate

about the true economic aspects of the Protocol and the United States may be losing out

economically in the long run.

A. Arguments against the Kyoto Protocol

        Five major arguments emerge when people discuss why the United States was right to not

ratify the Protocol.40 They range from researched reasons to policy reasons but all have some

merit to be considered. The five arguments are: 1) faulty science, 2) unrealistic targets, 3)

misdirected objectives, 4) exemptions for developing countries, and 5) severe economic

consequences. 41



36
   Id.
37
   Bush, George. President Bush Discusses Global Climate Change. White House Press Release from Office of the
Press Secretary on June 11, 2001. Viewable at http://www.whitehouse.gov/news/releases/2001/06/20010611-2.html.
Last viewed on October 5, 2008.
38
   Id.
39
   Id.
40
   Coon, Charli E. Why President Bush is Right to Abandon the Kyoto Protocol. The Heritage Foundation, May 11,
2001. Located at http://www.heritage.org/Research/EnergyandEnvironment/BG1437.cfm. Last viewed on October
11, 2008.
41
   Id.

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        The claimed faulty science is based on the failure to distinguish between human and non-

human impacts on global warming.42 Dr. Green, the Director of the Environmental Program at

the Reason Public Policy Institute, believes the fundamental flaws in the design of the Protocol

have merit.43 As for the speculation involved, Dr. Green believes the Protocol does not take into

account enough of the current and future climate trends involved in the general climate

patterns.44 Dr. Green also follows the assumption that the Protocol does not consider the human

and non-human impacts on global warming and that the goals of the Protocol ignore the ebb and

flow of the climate in the past.45

        The second flaw of the Protocol is the unrealistic targets imposed on the countries that

have ratified the protocol. For most developed countries to meet the Protocol goals, major

carbon emission cuts would have to be imposed on companies in those countries.46 Additionally,

some predict that to make an actual impact on global warming, countries would have to curb

carbon emissions by a much greater percentage than five percent below 1990 levels.47 The

countries would also have to rely heavily on carbon trading to meet the carbon reduction

mandates, which could cost developed countries large amounts of money.48

        The third major flaw of the Protocol is the misdirected objectives. Reducing carbon

emissions is the main goal of the Protocol while other greenhouse gases are left in the




42
   Green, Kenneth. Newest IPCC Report on Global Warming Fails to Deliver Sound Policymaking Models. Reason
Public Policy Institute, RPPI Rapid Response No. 101, February 27, 2001, p. 1. Viewable at
http://www.rppi.org/rr101.html. Last viewed on October 3, 2008.
43
   Id.
44
   Id.
45
   Id.
46
   Novak, Mary H. The Kyoto Protocol: Can Annex B Countries Meet Their Commitments? American Council for
Capital Formation Center for Policy Research. Special Report. October 1999, p. 7.
47
   Id.
48
   Id.

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background.49 Some critics claim a focus on other GHS such as methane, ozone, soot, and

aerosols would be a more practical way to address climate change – easier to implement and

perhaps cheaper to enforce.50 If combinations of GHS are the focus of climate change, it could

be longer lasting because no one harmful type of emission could spiral out of control like carbon

has. Only when a plan incorporates all GHS will it be an effective plan against climate change. 51

        The fourth major flaw of the Protocol is the exemption of developing countries in the

fight against climate change. China, India and Brazil have no regulations on emitting carbon yet

are some of the highest polluters in the country.52 China has recently overtaken the United States

for the rank of number one in carbon emissions yet still has no limits on the amount of carbon it

can emit into the atmosphere even though it has ratified the Protocol.53 Many developing

countries rely heavily on the use of coal and will rely on an increased amount of coal as the

countries become more developed.54 It is predicted that developing countries will increase their

carbon emissions by 2020 to levels above those of industrialized nations if no mandates are place

on them, which would counteract any carbon emission reductions achieved by developed

countries.55 Without forcing emission reductions on developing countries, any reductions in

carbon emissions by developed countries will be off set in future years as developing countries




49
   Hansen, James. Global Warming in the 21st Century: An Alternative Scenario. Proceedings of the National
Academy of Sciences, August 29, 2000.
50
   Id.
51
   Id.
52
   See Understanding the Berlin Mandate. Global Climate Negotiations Materials, Vol. I, November 19, 1997
(Developing countries, "regardless of their levels of economic development or emissions of greenhouse gases," are
"not required to take any specific steps to reduce or limit emissions. For example, China, Brazil, South Korea and
India are `Developing Countries' for purposes of the Treaty."); see also Fletcher, Susan R. Global Climate Change:
The Kyoto Protocol. Congressional Research Service, CRS Report for Congress No. RL30692, September 28, 2000,
p. 2-3.
53
   Vidal. China Overtakes US as World's Biggest CO2 Emitter. Supra note 32.
54
   Supra note 4.
55
   Id.

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continue to grow and increase their use of coal.56 This flaw was heavily relied upon by the

United States in not ratifying the Protocol and will be discussed in more detail.

        The final major flaw, and perhaps the most important one, is the major economic

consequences for the United States.57 The United States would have to invest millions of dollars

into renewable energy sources to compete internationally with other environmental countries and

rely on other developed countries to meet the reduction requirements.58 Developed countries

have economics as a priority in selling these carbon credits and can charge other developed

countries large amounts of money for the carbon credits which would benefit that developed

country while harming the other developed countries economies.59

        While the Protocol does have some documented flaws, the most relied upon flaw is the

economic harm the United States would suffer if it ratified the Protocol. However, the majority

of the research shows the economic result if the United States ratified the Protocol would be a

positive result in the long run.

B. Economic Arguments for the Kyoto Protocol

        The United States currently has no incentive for U.S. based companies to invest large

amounts of money in creating and using new technology that would reduce carbon emissions on

a large scale basis.60 While there is a United States policy on energy, the Energy Policy Act

created in 1992, the Policy has to be renewed every few years which creates uncertainties about


56
   Id.
57
   Thorning, Margo. A U.S. Perspective on the Economic Impact of Climate Change Policy. American Council for
Capital Formation Center for Policy Research, p. 2. Special Report. December 2000.
58
   Id.
59
   Novak, Mary H. The Kyoto Protocol: Can Annex B Countries Meet Their Commitments? American Council for
Capital Formation Center for Policy Research, p. 5. Special Report. October 1999.
60
   Hofgard, Kurt. Is This Land Really Our Land?: Impacts of Free Trade Agreements on U.S. Environmental
Protection. 23 Envtl. L. 635 (1993); Energy: Maximizing Resources, Meeting Our Needs, Retaining Jobs. Hearing
Before the Subcommittee on Energy Policy, Natural Resources and regulatory Affairs of the H. Government Reform
Comm. 107th Congress 120 – 121 (2002) (statement of George Sterzinger, Executive Director, Renewable Energy
Policy project.)

                                                                                                           11
the renewable sources industry.61 The Act provides mainly for corporate production tax credits,

but these credits change every few years which results in many companies not wanting to invest

in renewable energy sources over the long run because they may lose the tax incentive to do so.62

The United States companies may be losing out now and even more in the future because of the

lack of incentive to develop green technology.63

         European countries have the incentive through the Protocol to invest in new technology

that will reduce carbon emissions. That means that many European based companies are

developing the newest ways to produce clean energy and becoming leaders in the environmental

industry. For example, in comparing German technology versus United States technology,

German companies are far ahead of United States companies because of the German

governmental push for the use of renewable energy sources.64 In visiting Germany this past

summer, it was obvious that Germany is fully investing in solar and wind energy and benefitting

from this process. Germany also commits a lot of money towards developing and maintaining

the forest areas of the country to help provide more “sinks” for the countries carbon emissions.65

German companies are leading United States companies because the US companies have no

incentive to redirect their focus into clean, renewable energy and US companies are losing

opportunities to gain experience in industrial efficiency in these areas.66



61
   National Environmental Trust. Energy Policy Act of 1992. Pub. L. No. 102-468, 106 Stat. 2772 (codified in
scattered sections of 11, 15, 16, 25, 26, 30 & 42 U.S.C.). Rejecting the Kyoto Protocol: Lost Business, Lost Markets,
Lost Opportunities for the U.S. (2004)[hereinafter NET Report]
62
   Id.
63
   Stapp, Katherine. U.S. Companies See Practical Benefits in Carbon Emissions Market. Natl’l Envtl. Trush;
Rejecting the Kyoto Protocol: Lost Business, Lost Markets, Lost Opportunities for the U.S. Viewable at
http://www.tierramerica.net/2004/1204/iarticulo.shtml. Last viewed on October 12, 2008.
64
   Collins, Charlotte. Germany Opens World’s Biggest Solar Plant. Deutsche Welle. August 9, 2004. Viewable at
http://www.dw-world.de/dw/article/0,1564,1321857,00.html. Last viewed on October 28, 2007.
65
   Sinks refer to developing areas within the country or in developing countries that will absorb large amount of
carbon dioxide from the air, thereby reducing the effects of carbon dioxide into the atmosphere.
66
   Natl’l Envtl. Trust, Rejecting the Kyoto Protocol: Lost Business, Lost Markets, Lost Opportunities for the U.S.
Supra note 61.

                                                                                                                  12
        United States companies are also missing the opportunity to participate in the emissions

credit trading system that is being developed and perfected in Europe. Europe has become the

model continent for trading carbon units, with London being viewed as the home of the emerging

trading market.67 New York City is often viewed as the economic hub throughout the world but

is often the last city considered in the environmental world.68

        Further removing the United States from the economic prosperity of carbon trading is the

World Bank. The World Bank works with countries that have ratified the Protocol to ensure all

countries have access to buy excess carbon credits from countries.69 The World Bank serves as a

central hub for countries to sell excess carbon credits to and gain an economic profit. The World

Bank sells those carbon credits to countries struggling to meet the carbon emissions reduction

needed under the Protocol.70 The World Bank ensures that a country is not excluding the poorer

developed nations by buying the carbon credits and helps distribute the carbon credits throughout

the countries participating in the Protocol.71 The United States is not able to sell or buy carbon

credits through the World Bank because of its refusal to ratify the Protocol.72 The United States

would be able to sell carbon credits to countries wanting to reduce emissions, but would have to

create its own networks and relationships to do so.




67
   Shaffner, Eric. Repudiation and Regret: Is the United States Sitting Out the Kyoto Protocol to Its Economic
Detriment? 37 Entl. L. 441, Spring 2007. Environmental Law.
68
   Id.
69
   World Bank. Carbon Finance Unit, Carbon Finance at the World Bank. Viewable at
http://carbonfinance.org/Router.cfm?Page=About&ItemID=24668. Last viewed on Oct. 15, 2008. (The goal of the
World Bank in this endeavor is to encourage and enable entities to become involved in carbon reduction projects
that benefit developing countries while reducing GHGs.)
70
   Id
71
   Id
72
   Id

                                                                                                              13
        The lack of participation on an international scale in carbon trading is a detriment to the

United States economy – if not now than in the long run.73 When carbon trading becomes a

norm on the international level, the United States will be new at the system and will not have the

relationships with other countries to sell or buy carbon credits.74 Since the United States still

pollutes a large amount of carbon into the air, companies would have to buy more carbon credits

than sell to reduce emissions, which could cost a considerable amount of money. The countries

that have the ability to sell carbon credits will be skilled in selling the credits and know what the

market is like, along with having alliances with countries currently participating in the Protocol

to buy credits the United States won’t.75 When the United States chooses to participate in the

carbon trading system, the US will find itself participating in a field dominated by the European

Union and playing by rules and regulations adapted by those countries rather than being the

leader in the field.76

        Some companies in the United States had invested considerable amounts of money into

developing green energy in the past.77 However, these companies lost monetary value when the

United States refused to ratify the Protocol because the United States was no longer a major

participant in the fight against global warming.78 On the international scale, United States

companies who had publicly-traded renewable and low-carbon energy technology saw stocks

plummet when Russia ratified the Protocol.79 People no longer wanted to invest in companies


73
   Browne, John. Beyond Kyoto. 83 Foreign Aff. 20, 26 (2004). Viewable at
http://www.foreignaffairs.org/20040701faessay83404-p0/john-browne/beyond-kyoto.html. Last viewed on October
13, 2008.
74
   Id; Northrop, Michael & David Sassoon. The Mythology of Economic Peril. Envtl. Fin., June 2005. Viewable at
http://www.rbf.org/pdf/ef_mythology.pdf. Last viewed on October 2, 2008. (Quoting Karl Ulrich of the Wharton
School of the University of Pennsylvania.)
75
   Id.
76
   Supra note 67.
77
   Id.
78
   Id.
79
   Id.

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who would not be able to participate in the Protocol and shifted focus to the companies who

would become important factors under the Protocol.80 This again gives companies based in the

United States no incentive to switch focus to renewable energy sources because they cannot

participate in the market demand for these energy sources.

         Even though the United States has not ratified the Protocol, this does not mean United

States citizens have no desire to become “green.” Many cities have implemented goals to meet

similar to the goals they would need to meet under the Protocol.81 Some United States

companies are looking to become greener because of the savings they will see each year through

the reduction of energy consumption. BP, though not an American company, saved 650 billion

dollars through increased efficiency and BASF, a German chemical company, saved 500 million

dollars through the same emphasis on efficiency.82 Following suit, the United States Dow

Chemicals saved four billion dollars over eleven years through increased efficiency and reduced

the companies’ carbon emissions by thirty-two percent.83 If other companies can follow Dow

Chemicals ways, many US companies would see significant savings while becoming green at the

same time.

         The United States could also have the opportunity to create new jobs by investing in the

renewable energy market.84 This is a market prediction to be taken with a grain of salt, but is

based on the jobs created in other countries. Germany, once again, has modeled how many

80
   Id.
81
   Cornwall, Warren. Seattle Set its Kyoto Emission Reduction Requirements After the United States Failed to
Ratify the Protocol and has Since Met Those Goals in Carbon Reductions. The Seattle Times. October 29, 2007.
Viewable at http://seattletimes.nwsource.com/html/localnews/2003982047_webkyoto29m.html. Last viewed on
October 14, 2008.
82
   Howard, Steve. The Climate Group CEO. Carbon Down Profits Up. 3rd Edition, 2004. Viewable at
http://www.theclimategroup.org/assets/resources/cdpu_newedition.pdf. Last viewed on October 29, 2008.
83
   Id.
84
   Union of Concerned Scientists. Renewing America's Economy. February 1, 2007. Viewable at
http://www.ucsusa.org/clean_energy/solutions/renewable_energy_solutions/renewing-americas-economy.html. Last
viewed on October 14, 2008. (Estimating 91,220 new jobs if Congress requires all large electric utilities to increase
their use of renewable sources to 10% by 2020.)

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benefits can come from renewable energy.85 While wind energy only produces about six percent

of Germany’s electricity needs, the wind technology industries employs more than 45,000

people.86 If the United States would invest around 300 billion dollars in renewable energy, it is

suggested that over three million jobs would be created.87 Another study shows that renewable

energy markets create more jobs per unit of energy than do fossil fuel based markets and would

significantly help the areas of the United States that have suffered the highest levels of

unemployment.88 With the economy in its current state, this level of job creation could benefit a

lot of Americans and perhaps boost our economy for the long run as well.

C. Economic Conclusion

         When the United States decides to participate in the fight against global warming through

carbon trading or the development of new green technology, US based companies will face many

complexities between national, state, and international policies when trying to comply with green

measures. The sooner the United States invests in green energy and begins to become a leader in

this market, the easier the transition will be for US companies to comply with international

environmental law.

                              IV. Other Major Players of the Kyoto Protocol

A. European Union




85
   American Wind Energy Association. Global Wind Energy Market Report. 2004. Viewable at
http://www.awea.org/pubs/documents/globalmarket2004.pdf. Last viewed on October 13, 2008.
86
   Id.
87
   Id.
88
   Sterzinger, George & Matt Svrcek. Renewable Energy Policy Project, Wind Turbine Development: Location of
Manufacturing Activity. Viewable at http:// www.repp.org/articles/static/1/binaries/WindLocator.pdf. Last viewed
on October 15, 2008. (Estimating that “every 1000 MW of wind power developed created a potential for 3000 jobs
in manufacturing, 700 jobs in installation, and 600 in operations and maintenance and help out in rural areas because
renewable energy sources need to be in areas of low density population and large spaces of land.)

                                                                                                                  16
        The European Union consists of twenty seven European countries throughout Europe

who all work under the same framework of laws and economics.89 The parties of the European

Union all work together as one to create unity in Europe and ensure the freedom of the citizens

and the stability of the economy.90 The countries of the European Union who were members in

2002 have all ratified the Protocol and some will have more of an impact than others.91

Depending on how much carbon countries are currently emitting or producing could increase or

mitigate the impact of the Protocol.

        The European Union is a major player in the fight against global warming, but may also

benefit from being multiple countries working towards a goal as one. The entire European

Union must reduce greenhouse emissions by fifteen percent in 2012 to be five percent below all

the countries combined 1990 levels.92 However, since all of the European Union countries are

considered one, the more developed countries are benefiting from the less developed countries

that have little to no emissions but still count toward the same emission reduction goal.93 While

the European Union works together as one country, there are specific countries within the

European Union that will be more important than others. Sweden and Germany are two extreme

examples of European Union countries being “green.”

A. Sweden

        Sweden is one of Europe’s most environmentally friendly countries. For the past eight

years, Sweden has implemented national policies to reduce GHS emissions as well as become



89
   European Countries. Viewable at http://europa.eu/abc/european_countries/index_en.htm. Last viewed on
November 1, 2008. (Map and list of European Union Countries.)
90
   The EU at a Glance. Viewable at http://europa.eu/abc/treaties/index_en.htm. Last viewed on November 1, 2008.
(Listing the treaties of EU countries to maintain unity among the several countries.)
91
   Kyoto Protocol. Status of Ratification. Supra note 16.
92
   EU Climate Change. Last updated October 28, 2008.Viewable at
http://ec.europa.eu/environment/climat/home_en.htm. Last viewed on November 2, 2008.
93
   The Next Step in Global Warming, ECONOMIST, April 4, 2001, at 15.

                                                                                                              17
more environmentally sound through recycling and reducing unnecessary waste.94 Through

heavy recycling programs with penalties and a heavy concentration on waste management,

Sweden has been able to greatly reduce the amount of waste generated by its citizens and

companies through a sustainable development program.95 In developing a new environmental

national policy, Sweden officials focused on five “quality objectives:” 1) improving human

health, 2) protecting biodiversity and the natural environment, 3) taking care of the cultural

environment and the amenities of the cultural heritage, 4) preserving the long-term production

capacity of ecosystems, and 5) ensuring sound conservation of natural resources.96

        Sweden believes sustainable waste management is crucial to have a smoothly

functioning, environmentally aware country.97 Sweden gave the environmental regulation over

to the Environmental Protection Agency (Swedish EPA) to make progress toward ecologically

sound waste disposal, which has waste reduction at its heart.98 Hazardous waste is a big target of

waste reductions because this type of waste is the hardest to dispose of in an ecologically sound

manner.99 In looking on how to reduce the amount of waste produced in the country, Sweden

created a “life-style” management to control the production, consumption, and recycling of waste

products.100

        The life-style management works with production companies to reduce the amount of

waste used to create certain products in the country – using more efficient ways to produce the


94
   Swedish Environmental Protection Agency. Ecocycle Policy. Last Updated October 12, 2006. Viewable at
http://www.sweden.gov.se/sb/d/2972/a/17218. Last viewed October 25, 2008. (Sweden’s environmental policy
website.)[Here after Ecocycle Policy].
95
   Id.
96
   Id.
97
   Id.
98
   Id.
99
   Id.
100
    Id. See also Karen, Mattias. OECD Praises Sweden’s Environmental Policy, Suggests Improvements.
Environmental News Network. October 5, 2004. Viewable at http://www.enn.com/top_stories/article/9201. Last
viewed on November 25, 2008.

                                                                                                             18
same product or removing the parts of the product that can’t be recycled in an efficient

manner.101 The Swedish EPA recognizes the amounts of energy used to convert raw materials

into a product, the amount of energy consumed to use the product, and the amount of energy

needed to the dispose of the product.102 Only by working on all three stages of the life-style can

a sustainable environmental program work.103 Sweden is one of the most advanced countries in

dealing with the environmental waste problem but has yet to break into the international market

with its technologies.104 Sweden has started to reach out to other countries in Europe to share its

waste management abilities and is expected to be the leader in waste management as more

countries become interested in managing the amount and type of waste produced by a country.105

        Sweden has developed a hierarchy for the management of waste for sustainable

development that could be modeled by other countries. The initial step is to encourage Swedish

companies to try and produce as little and as harmless waste as possible.106 As for the waste

those companies do produce, as well as individual citizens of Sweden, recycling materials should

be the highest priority when trying to dispose of the materials.107 As a method of last resort, the

waste should be disposed of by landfilling.108 Essentially, Sweden places a large amount of

emphasis on recycling those products that create waste for future reuse rather than filling up

holes in the ground with these products.




101
    Id.
102
    Id.
103
    Id.
104
    Swedish Environmental Protection Agency. International Environmental Corporation – Through the EU and
Regional and Global Organizations. Last Updated February 20, 2008. Viewable at
http://www.sweden.gov.se/sb/d/2949. Last Viewed on November 3, 2008.
105
    Id.
106
    Ecocylce Policy. Supra note 94.
107
    Id.
108
    Id.

                                                                                                            19
        Sweden regulates production waste by forcing production companies to be responsible

for collecting and disposing of discarded products from that company.109 This encourages

companies to modify how they make products with the least amount of waste from the

beginning, which would reduce the amount of money it takes to collect and dispose of that waste

later on.110 If the company can’t reduce the amount of waste produced from a product, a second

intention of the policy is to get companies to recycle that waste in future products so the

disposing costs are limited.111 While this regulation is a great way to force companies to

consider waste in the production stage, it does have some flaws. It doesn’t have an impact on the

consumers, which can produce some of the largest amounts of waste, and it doesn’t clearly

indicate how companies and municipalities are supposed to work together to dispose of waste

which can cause many problems.112

        Sweden, as a result of its focus to reduce waste, has implemented a very advanced

recycling program. Each type of recyclable material is put into different bins to be picked up at

different times by different trucks. Plastics, glass, cardboard, organic waste, combustible

material, waste paper, household waste, batteries, and bulky refuse are all areas that Sweden

requires its citizens to sort out before garbage is picked up curbside.113 Because of this, Sweden

has been able to reduce the amount of waste it produces by limiting the amount of materials that

automatically goes into a landfill and increasing the amount of materials that are recycled for a

future use, which decreases the amount of waste produced when converting raw materials into a

useable product.114 While recycling is a large part of Sweden’s waste reduction, it is important


109
    Id.
110
    Id.
111
    Id.
112
    Id.
113
    Id. See also, Berglund, Christer. Economic Efficiency in Waste Management and Recycling. January 8, 2001.
Viewable at http://epubl.luth.se/1402-1544/2003/01/index.html. Last viewed November 24, 2008.
114
    Id.

                                                                                                                20
to not overlook the steps Sweden has taken to reduce the initial amounts of waste generated

during the production of materials used on a daily basis.

        Sweden is without a doubt a very environmentally conscious country. While Sweden has

not developed answers to all environmental problems, every country could use some policy

Sweden has created to help curb environmental problems within its borders. Reducing the

amount of waste created by a country can help curb harmful emissions because the same product

is being used in various ways, rather than a new product having to be created from raw materials

every time something is made.

B. Germany

        Germany has created a focus for sustainable development through renewable energy

sources as a major source of energy for the country. As a result, Germany reduced its carbon

emissions by eighteen percent between 1990 and 2005.115 During that same time period, United

States carbon emissions rose sixteen percent.116 Germany effectively uses wind farms, solar

panels, and biogas plants with an extensive recycling program to conserve resources and re-use

raw materials.117 Germany has created a model example of how to effectively use renewable

sources for energy and job creation that is followed by almost fifty countries around the world. 118

        Germany accounts for most of the renewable energy parts produced in the world.119 One

in three solar cells and almost half of the wind turbines used world-wide are manufactured in




115
    Germany’s Environmental Policy Website. Leading the Way with Strategies for More Sustainability. Viewable at
http://www.germany.info/Vertretung/usa/en/07__Economy/03/Sustainability__Strategies__DM.html. Last viewed
on Oct. 31, 2007.
116
    Id.
117
    Id.
118
    Id.
119
    Id. See also, Solar World Asia Pacific. Germany Makes the Case That Green Policy can Lead to Competitive
Advantage. Press Release, October 15, 2006. Viewable at http://www.solarworld.sg/index.php?id=858. Last viewed
on November 24, 2008.

                                                                                                             21
Germany, making it the world’s leader in the “greentech” industry.120 The greentech industry is

short for green technology which applies the environmental science to preserving natural

resources to help reduce the impact of human involvement on the Earth.121 Germany has become

a leader in this field because of its dedication to creating energy from renewable sources and

investing in “sinks” throughout the country.122 Germany is second only to Sweden in the 2008

global Climate Protection Index, which ranks the performance of fifty six countries in climate

protection.123 This speaks to the advantages that investing in renewable energy sources has for

countries and the environmental movement.

        Germany has taken its environmental efforts beyond its borders. Germany has invested

large amounts of money in developing countries to promote green energy and sustainable

development in these countries to help reduce their carbon emissions in the future.124 Egypt,

Indonesia, Kenya and China are all countries that Germany has given money to in support of

greentech to help meet their energy needs as their populations increase in the future without

having to greatly increase their carbon emissions.125

        While Germany has made great strides in its environmental progress, without the collapse

of East Germany in the late eighties this progress may not have happened at all.126 When East

Germany collapsed, many of its industries followed the old Soviet’s technologies and simply by

converting those industries to modern Western Europe technologies Germany had almost met its


120
    Id.
121
    Id.
122
    Id.
123
    Id.
124
    Id.
125
    Id.
126
    Protzman, Ferdinand. East Germany’s Economy Far Sicker than Predicted. New York Times. September 20,
1990. Viewable at http://query.nytimes.com/gst/fullpage.html?res=9C0CE0D7173CF933A1575AC0A966958260.
Last viewed on November 24, 2008. (Explains the detriment to East Germany’s economy after the fall of the Berlin
Wall, which gave Germany a chance to invest in new, clean technology to create the mass amount of jobs needed to
keep the entire country’s economy surviving.)

                                                                                                              22
Kyoto goal of emissions reductions.127 Also, Germany has exempted its coal industry from the

regulations of the Protocol.128 This has received much criticism from the environmental world

and casts doubt on the ability of Germany to become a major leader for the long run in carbon

emissions if the coal industry does not have to comply with the EU internal emissions trading

system. Essentially this allows German’s coal companies to emit more than the mandated

amount of carbon dioxide into the country without buying a permit to do so beforehand.129 This

creates problems because coal is a major source of the carbon problem and could set the wrong

tone for developing countries in the regulation of the coal industry.

        Germany has made great advancements under the Protocol. By showing how profitable

and beneficial renewable energy sources can be, Germany has emerged as a leader in this area of

environmental law and will continue to be a leader into the future. While Germany had some

advantages going into the Protocol requirements, the effort Germany has put into reducing

carbon emissions is commendable and should be looked at as a model for future countries.

                               V. Other Players in Carbon Emissions

        The Kyoto Protocol only imposes regulations on developed countries while allowing

developing countries to participate in the fight against global warming if they choose to do so.130

This has been a major critique of the Protocol because of the amount of emissions developing

countries will be putting into the atmosphere in the next few years.131 Some developing

countries have rapidly expanding populations that will have a major impact on the countries


127
     Id.
128
    Dempsy, Judy. New German Rule Could Increase GHG Emissions. NY Times, June 29, 2006. Viewable at
http://www.nytimes.com/2006/06/29/business/worldbusiness/29green.html?ex=1309233600&en=4cd4442637d8302
6&ei=5088&partner=rssnyt&emc=rss. Last viewed on October 31, 2008.
129
    Id.
130
     The Kyoto Protocol, Article 11. Supra note 7.
131
     Novak, Mary. Global Climate Change Policies: The Impact on Economic Growth, U.S. Consumers, and
Environmental Quality. American Council for Capital Formation Center for Policy Research. Special Report,
October 1997, p. 8.

                                                                                                      23
carbon emissions and this increase has the potential to ruin all progress made by developed

countries under the Protocol.132

A. China

        China was defined as a developing country under the Protocol and is therefore not subject

to the mandatory emissions reduction goals under the Protocol.133 However, China has become

the world’s number one carbon emitter, over taking the United States in 2007.134 The amount of

emissions China is putting into the atmosphere is argued to offset any progress developed

countries make in reducing carbon emissions and will continue to do so as China’s population

continues to increase. Though no mandatory reductions are forcing China to reduce carbon

emissions, China’s leaders has recognized the importance of reducing carbon emissions and has

taken steps to do so.135

        China will continue to enforce its family planning policy to keep the population of China

in check and reduce the amount of emissions produced through this.136 China is also working to

reduce carbon emissions through improving technology uses, turning more land into natural

habitats, and continuing to focus on using renewable energy sources as the country becomes

more developed.137

        China is willing to participate in the global battle against climate change, but also

recognizes the developed countries are the countries that can make a difference because of their




132
    Id.
133
    The Kyoto Protocol. Supra note 7.
134
    Videl, China Overtakes US as World’s Biggest CO2 Emitter. Supra note 32.
135
    Kai, Ma. China is Shouldering Its Climate Change Burden. Financial Times, June 3, 2007. Viewable at
http://www.ft.com/cms/s/0/ea28ab22-11f3-11dc-b963-000b5df10621.html. Last viewed on October 18, 2008; See
also BBC News, China Unveils Climate Change Plan. June 4, 2007. Viewable at http://news.bbc.co.uk/2/hi/asia-
pacific/6717671.stm. Last viewed October 18, 2008.
136
    Id. (Kai.)
137
    Id.

                                                                                                           24
financial resources and technology capabilities.138 In looking toward the future, China is hoping

a post-2012 Protocol will push harsher standards on developing countries to get involved in the

fight against global warming.139

B. Other Developing Countries

        India and Brazil are also developing countries that have no mandatory emission

reductions imposed on them.140 Many studies predict that developing countries carbon emissions

will greatly surpass the emissions released by developed countries because of increases in

population and the lack of new technology for clean energy.141 Most developing countries are

not investing large amounts of money in to clean energy production – in part because they don’t

have the financial resources to do so and in part because they have no incentive to invest in the

new and more expensive clean technology.

        The Energy Information Administration of the U.S. Department of Energy predicts that

by 2020 total carbon emissions by developing countries will increase significantly. Coal use in

those same countries is expected to rise by thirty percent from 1990 to 2020, with India and

China accounting for ninety percent of that increase.142 When comparing China, India and Brazil

alone against the United States, those three countries carbon dioxide emissions will greatly

surpass the carbon dioxide emissions of the United States by 2020.143 The United States can’t

deny its responsibility to curb carbon dioxide emissions to help alleviate the human impact on

global warming but the developing countries can’t be ignored when trying to find a long term

solution to reduce carbon emissions.


138
    Id. (BBC News)
139
    Id.
140
    The Kyoto Protocol. Supra note 7.
141
    U.S. Department of Energy. Energy Information Administration, International Energy Outlook 2001. Appendix
B, Table B-10, p. 205. Viewable at http://www.eia.doe.gov/oiaf/ieo/index.html. Last viewed on October 19, 2008.
142
    Id.
143
    Id.

                                                                                                              25
                                       VI. A Better Kyoto

       When countries meet again to develop an extension of the Protocol to continue to reduce

greenhouse gas emissions, a global effort needs to be made toward getting more countries under

regulations. All major developed countries that have high carbon emissions need to be forced to

have carbon reductions by a certain year while placing an emphasis on renewable energy

sources, green technology and waste management. By learning from countries that have become

experts within various ways to reduce environmental problems, countries with high GHG

emissions can find ways to reduce emissions on a large scale. Developing countries can also

learn from developed countries that have mastered different areas of environmental law. By

implementing those polices from the start, perhaps developing countries won’t develop the same

problems current developed countries are experiencing. Additionally, if developing countries

start early in waste management when industries are beginning rather than trying to change

implemented policies, the efforts to maintain and reduce waste created would be much easier.

       Developing countries may not have the financial capacity to make a huge impact on

carbon emissions but certain developing countries need to have carbon emission reductions

placed on them if there is to be a world-wide effort to reduce overall carbon emissions.

Developing countries rely heavily upon the use of coal for energy which emits a large amount of

carbon into the air. By developed and developing countries working together to reduce carbon

emissions and create new green technology, to utilize sinks and to capitalize on renewable

energy sources, carbon emissions may be able to be reduced to below 1990 levels for countries

and help remove the human impact on global warming.

                                         VII. Conclusion




                                                                                                26
       While the economics create huge problems with the Protocol for the United States, it

can’t be the determinative factor in not ratifying a document like the Protocol. Countries like

Sweden and Germany have shown that reducing GHG emissions won’t wreak havoc on an

economy and can even create jobs in some areas. While Germany and Sweden have different

economic situations than the United States, both of these countries are real world examples of

how making environmental changes can be successful.

       The United States needs to act quickly in reducing GHG emissions in order to reduce the

human impact on global warming. While global warming has been documented in the past as a

natural phenomenon, it is hard to ignore the hard science that indicates the human influence on

global warming is greatly increasing the warming rate of Earth’s surface temperature. Without

countries like the United States, China, Brazil and India working toward reducing carbon

emissions, global efforts to curb GHG emissions will be offset by the mass amount of emissions

these countries produce.




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