Global warming, climate change and law

INDIAN INSTITUTE OF MANAGEMENT LUCKNOW GLOBAL WARMING, CLIMATE CHANGE AND LAW PROJECT REPORT FOR LEGAL ASPECTS OF MANAGEMENT Aug 2008 The international context The international agreement underlying the field of global warming and climate change is the United Nations Framework Convention on Climate Change (UNFCCC). It was opened for signature at the United Nations Conference on Environment and Development in Rio de Janeiro in 1992. It came into force in 1994 and now has 189 parties. The UNFCCC states that developed and developing countries have “common but differentiated responsibilities and respective capabilities.” It established a Conference of the Parties (COP)—a legislative-like body that meets annually and is charged with devising ways to implement the UNFCCC‟s goals. At the COP meeting in Kyoto, Japan, in 1997, the Kyoto Protocol was negotiated. Kyoto protocol According to a press release from the United Nations Environment Programme: "The Kyoto Protocol is an agreement under which industrialized countries will reduce their collective emissions of greenhouse gases by 5.2% compared to the year 1990 (but note that, compared to the emissions levels that would be expected by 2010 without the Protocol, this limitation represents a 29% cut). The goal is to lower overall emissions of six greenhouse gases - carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbons, and perfluorocarbons - averaged over the period of 2008-2012. National limitations range from 8% reductions for the European Union and some others to 7% for the US, 6% for Japan, 0% for Russia, and permitted increases of 8% for Australia and 10% for Iceland” The major distinction between the Kyoto Protocol and the UN Framework Convention is that while the Convention encouraged industrialized countries to stabilize greenhouse gases emissions, the Protocol commits them to do so. Recognizing that developed countries are principally responsible for the current high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity, the Protocol places a heavier burden on developed nations under the principle of “common but differentiated responsibilities.” The detailed rules for the implementation of the Protocol were adopted at the COP meeting in Marrakesh in 2001, and are called the “Marrakesh Accords.” The Kyoto protocol is underwritten by governments and is governed by global legislation enacted under the United Nations‟ aegis. Governments are separated into two general categories: developed countries, referred to as Annex I countries (who have accepted greenhouse gas emission reduction obligations and must submit an annual greenhouse gas inventory), and developing countries, referred to as Non-Annex I countries (who have no greenhouse gas emission reduction obligations but may participate in the Clean Development Mechanism). Any Annex I country that fails to meet its Kyoto obligation will be penalized by having to submit 1.3 emission allowances in a second commitment period for every ton of greenhouse gas emissions they exceed their cap in the first commitment period (i.e., 20082012). Non-annex I countries include 137 developing countries that have ratified the protocol, including Brazil, China and India, but have no obligation beyond monitoring and reporting emissions. Significantly, the United States, which is the world‟s largest emitter of greenhouse gases, has not ratified the protocol, on the grounds that the protocol that did not include binding targets and timetables for developing countries, specifically, China and India, which are expected to contribute significantly to greenhouse gases on account of rapid industrialization. The Kyoto Protocol offers the Annex-I countries an additional means of meeting their targets by way of three market-based mechanisms: Emission trading Parties with commitments under the Kyoto Protocol (Annex I countries) have accepted targets for limiting or reducing emissions. These targets are expressed as levels of allowed emissions, or “assigned amounts,” over the 2008-2012 commitment period. The allowed emissions are divided into “assigned amount units” (AAUs). Emissions trading, as set out in Article 17 of the Kyoto Protocol, allows countries that have emission units to spare - emissions permitted them but not "used" - to sell this excess capacity to countries that are over their targets. Thus, a new commodity was created in the form of emission reductions or removals. Since carbon dioxide is the principal greenhouse gas, people speak simply of trading in carbon. Carbon is now tracked and traded like any other commodity. This is known as the "carbon market." Clean Development Mechanism The Clean Development Mechanism (CDM), defined in Article 12 of the Protocol, allows a country with an emission-reduction or emission-limitation commitment under the Kyoto Protocol (Annex I country) to implement an emission-reduction project in developing countries. Such projects can earn saleable certified emission reduction (CER) credits, each equivalent to one tonne of CO2, which can be counted towards meeting Kyoto targets. The mechanism is the first global, environmental investment and credit scheme of its kind, providing standardized emissions offset instrument, CERs. A CDM project activity might involve, for example, a rural electrification project using solar panels or the installation of more energy-efficient boilers in a developing country. The mechanism stimulates sustainable development and emission reductions, while giving industrialized countries some flexibility in how they meet their emission reduction or limitation targets. Joint Implementation (JI) The mechanism known as “joint implementation,” defined in Article 6 of the Kyoto Protocol, allows a country with an emission reduction or limitation commitment under the Kyoto Protocol (Annex I Party) to earn emission reduction units (ERUs) from an emission-reduction or emission removal project in another Annex I Party, each equivalent to one tonne of CO2, which can be counted towards meeting its Kyoto target. Joint implementation offers parties a flexible and cost-efficient means of fulfilling a part of their Kyoto commitments, while the host party benefits from foreign investment and technology transfer. Successor to the Kyoto protocol In the non-binding 'Washington Declaration' agreed on February 16, 2007, Heads of governments from Canada, France, Germany, Italy, Japan, Russia, United Kingdom, the United States, Brazil, China, India, Mexico and South Africa agreed in principle on the outline of a successor to the Kyoto Protocol. They envisage a global cap-and-trade system that would apply to both industrialized nations and developing countries, and hoped that this would be in place by 2009. Some laws in developed countries The United States: The Global Warming Solutions Act of 2006 is an environmental law in California, signed into law on September 27, 2006. The bill effectively establishes a timetable to bring California into near compliance with the provisions of the Kyoto Protocol by January 1, 2012. The United Kingdom : The Climate Change Bill, published on 13 March 2007, is a draft law aimed at moving the United Kingdom to a low-carbon economy and society. The key component of the legislation would be to require a mandatory 60% cut in the UK's carbon emissions by 2050 (compared to 1990 levels), with an intermediate target of between 26% and 32% by 2020. Key areas Requires the Government to publish five yearly carbon budgets as from 2008 Creates a Committee on Climate Change Requires the Committee on Climate Change to advise the Government on the levels of carbon budgets to be set, the balance between domestic emissions reductions and the use of carbon credits, and whether the 2050 target should be increased Places a duty on the Government to assess the risk to the UK from the impacts of climate change Provides powers to establish trading schemes for the purpose of limiting greenhouse gas Confers powers to create waste reduction pilot schemes Amends the provisions of the Energy Act 2004 on renewable transport fuel obligations. The European Union : The EU countries are the most aggressive supporters of the Kyoto protocol. The European Climate Change Programme (ECCP) was launched in June 2000 by the European Union's European Commission. The goal of the ECCP is to identify, develop and implement all the necessary elements of an EU strategy to implement the Kyoto Protocol. All EU countries' ratifications of the Kyoto Protocol were deposited simultaneously on 31 May 2002. The European Union Greenhouse Gas Emission Trading Scheme (EU ETS) is perhaps the most significant contribution of the ECCP, and the EU ETS is the largest greenhouse gas emissions trading scheme in the world. In 1996 the EU adopted a target of a maximum 2°C rise in average global temperature. Controversies against global warming laws Case: Cement industry in Germany German laws require strict emission controls by companies. These emissions allowances are burdening some companies that require a lot of energy for production purposes, specifically in the power and cement sector. According to European Commission plans, every European company will then have to acquire pollution permits from a sort of stock exchange. So far the permits have been handed out free, or largely free. But this is set to change in 2013. The cement industry faces cost increases of around $1.4 billion from 2013 when it has to pay for pollution permits, which would account for almost half of the industry‟s annual revenues. Since the global warming prevention laws are applicable in EU countries only, cement companies are threatening to move out of Germany to Ukraine, which does not have strict environment pollution laws. This would result in loss of thousands of jobs in Germany. So the German finance ministry is thinking of modifying the current climate change laws, to exclude some sectors like cement and power plants. Since these are typically among the most polluting sectors, the whole purpose of the law would then be defeated. Case: Copenhagen consensus The Copenhagen consensus was convened by Danish economist Bjorn Lomborg to create a list of priorities enumerating how the sum of $800 billion could be most effectively be spent over the next 100 years in tackling the problem of climate change. The panel, which included five Nobel laureates, concluded that spending $800 billion over 100 years solely on cutting back carbon emissions would in fact prevent only $685 billion worth of damages. The Copenhagen consensus suggested that this money could be better utilized if it was spent on research and development of other renewable energy sources, such as solar energy. Effectively, the panel suggests scrapping all existing „cap-and-trade‟ laws in the carbon market, and instead use the money so saved for research and development of renewable energy sources to prevent global warming. References 1) http://en.wikipedia.org/wiki/Climate_change 2) http://www.edugreen.teri.res.in 3) http://en.wikipedia.org/wiki/Global_warming 4) http://www.ace.mmu.ac.uk/eae/climate_change/Older/Causes.html 5) http://www.koshland-science-museum.org/exhibitgcc/causes01.jsp 6) http://www.physicalgeography.net/fundamentals/7y.html 7) http://www.unfccc.int 8) http://www.apeuk.org/climatechange.htm 9) http://www.businessweek.com (Article: Killing jobs to save the climate) 10) http://www.copenhagenconsensus.com 11) http://www.nlsenlaw.org/air-noise/case-laws/supreme-court/m-c-mehta-v-unionof-india-air-1997-sc-734/ 12) http://www.nlsenlaw.org/forest/case-laws/supreme-court-1/m-c-mehta-v-kamalnath-and-others-1997-1-scc-388/ 13) http://www.indiatogether.org/2004/nov/env-civilcrim.html 14) http://economictimes.indiatimes.com/Earth/Climate_change_threat_to_rule_of_la w/articleshow/3002151.cms 15) http://www.ens-newswire.com/ens/jul2008/2008-07-03-093.asp 16) http://www.nrdc.org/media/pressreleases/060927.asp 17) http://www.islamonline.net/servlet/Satellite?c=Article_C&cid=1209357937787&pag ename=Zone-English-HealthScience%2FHSELayout 18) http://www.fightglobalwarming.com/page.cfm?tagID=264 19) http://www.edf.org/article.cfm?contentID=5623 20) http://www.edf.org/article.cfm?contentID=5569 21) http://www.endangeredlaws.org/case_mosbacher.htm