Seeking Prudent Policy in the Face of Uncertainty: Observations on an AALS Discussion of Global Climate Change

Joel A. Mintz

The author is a Professor of Law at Nova Southeastern University Shepard Law Center in Fort Lauderdale, Florida. He writes frequently on selected aspects of environmental law as well as state and local government law.

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On January 5, 2002, the fourth day of the 102d annual meeting of the Association of American Law Schools (AALS) in New Orleans, Louisiana, the section on environmental law sponsored a well-attended, provocative panel discussion entitled "Global Climate Change Policy and Perspectives." The session was moderated by Prof. Mark Squillace of the University of Wyoming Law School. Participants included Haroon S. Khesgi, the global climate change science program leader for Mobil Exxon Research and Engineering Company, and a principal author of the first volume of the recently published Third Assessment Report of the Intergovernmental Panel on Climate Change (IPCC)¹; Vicki Arroyo Cochran, the director of Policy Analysis of the Pew Center on Global Climate Change; Alberto Szekely, ambassador/advisor to the government of Mexico; and Daniel M. Bodansky, a law professor at the University of Washington and (from August 1999 to June 2001) the climate change coordinator at the U.S. Department of State (State Department). Several environmental law professors attending the discussion also volunteered lively and interesting comments and questions.

This Dialogue is intended both to summarize and to comment upon the remarks of the participants in this panel discussion. In particular, I will recount and assay their observations in two distinct areas: the current state of scientific knowledge concerning the causes, extent and impacts of global climate change, and the political responses that the United States and the international community have made and should make to the global climate change.

What We Know and What We Don't Know: Current Scientific Understandings of Global Climate Change

After introducing each of the panelists, and stating their professional credentials, Professor Squillace asked Mr. Khesgi the extent to which we now know enough about climate change to be prepared to deal with the "political questions" as to how to control, or how best to control, impacts associated with climate change. Khesgi replied that the "short answer" to Professor Squillace's question is that we are learning a lot about climate change right now. We certainly don't know everything. There is reason to believe that there is a "risk of climate change and there are reasons to respond to it at this point. However, we certainly don't know enough to design an emission control program for all time." Instead, we should expect that such a program will "adjust over time" as more relevant knowledge is gained.

After distinguishing global climate change from the depletion of stratospheric ozone, which he referred to as "another, largely unrelated global atmospheric concern," Mr. Khesgi stated that the basic threat in the climate change area is that human activities—particularly the emission of carbon dioxide (CO₂), chlorofluorocarbons (CFCs), methane, sulfur hexafluoride, and nitrous oxide—have increased the level of greenhouse gases (GHGs) in the atmosphere. These gases (together with aerosols) have altered radiative transfers in the atmosphere. That, in turn, seems to have altered the concentration of water vapor and ozone in the atmosphere, an alteration which can lead to climate change.

Khesgi explained that the temperature of the earth is determined largely by the "radiative balance" in the atmosphere. Incoming short wave radiation heats the planet. Infrared radiation, traveling away from the planet, cools the earth. Concentrations of CO₂ in the atmosphere (primarily from the emissions caused by the burning of fossil fuels) have increased significantly since the 1700s; and since CO₂ and other GHG tend to trap some escaping infrared radiation, the atmospheric absorption of long wave radiation by such gases has also increased, with a risk of consequences for the earth's climate.

Mr. Khesgi stated that the radiative forcing that has resulted in the earth's atmosphere from increased GHG concentrations is relatively well understood. However, radiative forcing from CO₂ and other GHG is not the only radiative forcing effect that has changed since the 18th century. There have also been contributions from sulfates, sulfate aerosols, stratospheric ozone, and tropospheric ozone. Khesgi and other scientists believe that these "aerosol effects"—which generally (though not invariably) lead to atmospheric cooling—may have a very large aggregate impact as well.

According to Khesgi, emissions of GHG are expected to continue to increase, and the radiative forcing from those rising levels of CO₂ is anticipated to increase as well. However, it is difficult to predict how the climate system will respond to these phenomena. At the present time, such predictions are made through "relatively uncertain, untested" computer modeling techniques, which have given rise to a very wide range of different climate change scenarios. These computer models yield very significant differences with regard to the magnitude, the timing, and the regional distribution of climate change. "At this point," Khesgi suggested, "we cannot assign a probability to what level of climate change we expect since we cannot assign a probability to one [computer] model being right as opposed to another."

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Khesgi noted that the ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC) is "stabilization of the concentration of [GHGs] at a level that would prevent dangerous anthropogenic interference with the climate system."² He observed that at this point, however, scientists cannot determine what level of atmospheric GHG concentration can be defined as a "dangerous level" or a "safe level" for climate.³

In light of these uncertainties, the IPCC recently generated a series of "stabilization cases," in which atmospheric CO₂ concentrations were brought to several different hypothetical "equilibrium concentrations," i.e., constant CO₂ levels in the stratosphere, which range from as low as 450 parts per million (ppm) of CO₂ to as high as 1,000 ppm.⁴ All of these hypothetical "cases" contain a finite budget of projected CO₂ emissions which will eventually decline to zero emissions over a very long period of time, i.e., 100 or 200 years. However, each of these possible alternative levels of CO₂ has a different "cumulative budget" of CO₂ emissions to the atmosphere, the size of which depends on the CO₂ goal level in question.

Khesgi opined that anoverall response strategy should take precautionary measures. It should factor in "gaps in our understanding" of both the science of climate change and of humankind's ability to mitigate climate change; and the response strategy should be designed to adapt to an evolution in the state of our knowledge, which will undoubtedly improve over time.

For Khesgi, an appropriate response strategy should include three components: research, mitigation, and adaptation. Further research should yield more reliable information regarding the risk of climate change. Mitigation of climate change should emphasize a reduction in the net emissions of GHG (taking into account the role of aerosols) as well as the potentialities of "geo-engineering."⁵ Additionally, Khesgi stated that, "even with our very limited current ability to predict changes in climate, we can still act to improve our overall capacity to adapt to climate changes."

Ms. Cochran took a somewhat different view of the current state of scientific knowledge regarding climate change. She stated that "for the last 20 years our projections of climate change have not changed very much, but the certainty associated with those projections has." As she sees it, the "general scientific consensus" is now that, by the end of the 21st century, the earth's average temperature will rise by two degrees Fahrenheit (F [degrees]). "There is still uncertainty associated with going beyond projections of the level of climate change to the impact(s) it will have," Cochran noted. "Nonetheless," it is "pretty well accepted" at this point that there will be overall increases in global precipitation, sea level rise from glacial melting, and (in some areas) a loss of land mass. In Cochran's opinion, "we do know enough to move forward with some sort of mitigation strategy. In fact, to not move forward fairly quickly with some sort of strategy to get us to where we really need to go would be really irresponsible."⁶

Mr. Szekely indicated that he was disappointed with the IPCC's recommended strategy of research, mitigation, and adaptation. He stated that he cannot quarrel with the scientific conclusion that there is "uncertainty." Nonetheless, Szekely took the view that the proposed IPCC strategy is not consistent with the certainty that actual impacts of climate change are already occurring around the globe, especially with regard to alterations in patterns of precipitation and the recent frequency of droughts. Szekely suggested that the IPCC's research/mitigation/adaptation approach fails to go to the "roots of the problem." Instead, he stated, "we need to more fundamentally rethink the world, its economy, and its models of development."

Professor Bodansky stated that "there is now an increasing and really almost universal consensus that we are dealing with real problems, and that reductions in [GHG] emissions are going to be needed." He indicated that there is also a "growing consensus" that "if we are really going to see significant reductions in [those kinds of] emissions, it is going to require a mandatory approach."

Professor Bodansky mentioned that when he was the State Department's climate change coordinator, he had a good opportunity to witness, from the inside, the recent transition from the Clinton Administration to the Bush Administration with regard to climate change policies. He stated:

When the Bush Administration came in there were some in the White House who thought the IPCC was "UN Science," and that no red-blooded American scientist would actually believe in climate change. They did get a very fast education as part of the policy review process. By the end of the first phase of that policy review, they came to the realization that they are dealing with a real problem, that the science [concerning global climate change] is much more solid than they had thought, and that the contributions to the IPCC had largely come from American scientists.⁷

Professor Bodansky declared that he agrees with Khesgi that there is now no scientific agreement as to what levels of atmospheric GHG concentration can be considered "safe." Thus, he stated, "we know what direction we want to head but we don't know exactly where we want to end up. We are dealing with a process of sequential decisionmaking under uncertainty, where we need to start acting now."

Professor Bodansky submitted that, under these circumstances, it makes sense "to start rather unambitiously and to [32 ELR 10829] ramp up, rather than vice versa." He noted that the cautious approach to GHG emission reduction has the advantage of allowing nation-by-nation acceptance of a wholly new international regulatory structure at a gradual and thus realistic pace. It also allows for the retirement of capital stocks on "an ordinary cycle," rather than forcing a quick retirement of capital in order to attain a very ambitious short-term emission reduction target.

Professor Bodansky opined that it may be useful to consider a "safety valve" or "hybrid" approach to limiting the emissions of GHG. This would entail establishing a quantity-based emission reduction timetable, together with an understanding that agreed-upon emission reduction targets will be relaxed, in the future, if the aggregate price of attaining those targets rises above some pre-agreed level. For Professor Bodansky, this regulatory model would create a useful "hedging strategy." Under it, "you try to pick some economically efficient level of emission-reduction. If that level proves more expensive than anticipated, however, you relax it so you don't impose unacceptable economic costs on the economy."

Professor Squillace concluded the "scientific background" aspect of the panel's discussion by mentioning briefly that one striking lesson of the AALS environmental law section's field trip (which had preceded the section-sponsored panel discussion by several days) had been that because of the continuing channelization of the Mississippi River, the ongoing movement of land mass to the sea from the southern portion of Louisiana constitutes the largest such loss in the world. He stated that if one adds the potential impact of global climate change to that pattern, the resulting land losses in this part of the United States may prove to be even more dramatic over time.

How Have We Reacted?: The Political Response to Global Climate Change

Turning the focus of the panel discussion to the political aspects and ramifications of global climate change, Professor Squillace summarized some significant recent developments. He explained that the UNFCCC was adopted in 1992 and became effective in 1994. It has been ratified, without extensive controversy or debate, by 186 countries, including the United States.

Since adoption of the convention, the Conference of the Parties that the convention created has met in various cities, on essentially an annual basis, to attempt to iron out the details of how the UNFCCC should be implemented. The most famous result of these international meetings was the Kyoto Protocol, adopted in 1997 and signed by 84 Parties. By its terms, it will become effective when at least 55 Parties, representing at least 55% of the world's total CO₂ emissions, formally ratify it. That event may occur in 2002.

At the same time, however, for the immediate future the United States is unlikely to become a participant in "the Kyoto process." In the 2000 U.S. presidential campaign, then-candidate George W. Bush announced that he planned to support an emission limitation on CO₂. However, following the election, in March 2001, President Bush publicly indicated that it would be "too costly" for the United States to place controls on its CO₂ emissions. Subsequently, in June 2001, the White House issued a press release stating that, in the view of the Bush Administration, the Kyoto Protocol was fatally flawed.

Cochran noted that the regulatory framework crafted in Kyoto was "very much a U.S. kind of notion." It included quite a few provisions that U.S. businesses had sought, including flexibility mechanisms, requirements for the control of GHG other than CO₂, the counting of sequestration, and other items.⁸ Moreover, some of the decisions made in recent international meetings, where the United States has been on the sidelines, have also been in keeping with what had been U.S. ideas. Thus she finds it "ironic" that the rest of the world is moving forward with the Kyoto Protocol—and the framework it established—in our country's absence.

Ms. Cochran observed that the actual targets and timetables called for in the Kyoto Protocol would have been very difficult for the United States to meet since "there wasn't any domestic action to address climate change, even in the last administration." In her opinion, "some kind of mid-term adjustment in the Protocol is necessary, even though just abandoning the Protocol is not something the Pew Center would support."

On the domestic front, Cochran noted, a number of electric utilities have expressed the view that if the federal government is going to regulate such air pollutants as sulfur dioxide (SO₂) and nitrogen oxide (NO_x), it would be more economical to regulate CO₂ at the same time. The Bush Administration's position is now contrary to this approach. Nonetheless, Cochran expects to see proposed legislation moving forward in the U.S. Congress to regulate at least three and possibly four air pollutants simultaneously, notwithstanding the Administration's view, because "quite a number of companies would like to see it all done comprehensively."

Professor Bodansky observed that the Kyoto Protocol was an ambitious instrument. Nonetheless, it was only intended to be a "framework" (albeit a more detailed one than the UNFCCC of 1992) that established broad parameters for emissions trading, clean development mechanisms, and so forth. The detailed rules governing the provisions of the agreement remained to be worked out after the Kyoto Protocol was signed in 1997. Thus, in 1998, in Buenos Aires, the Parties agreed to the Buenos Aires Plan of Action, an ambitious workplan to "flesh out" the details of how the Kyoto Protocol was to work in the key areas of emissions trading, the compliance system, sinks, and the clean development mechanism.

The Hague negotiations, which took place one year following the meeting in Buenos Aires, reached a short-lived agreement, the so-called Saturday Morning Deal, the consensus for which broke down at the meeting itself. A year later, however, at a subsequent meeting in Bonn, Germany, significant progress was made. That was followed fairly recently by another meeting in Marrakesh, Morocco, at which an agreement was finally arrived at.

Professor Bodansky indicated that what emerged from Bonn and Marrakesh was a good deal like what the Clinton Administration had been pushing for in three major areas: mechanisms, sinks, and compliance. The agreed-upon rules regarding emissions trading were relatively "spare and basic," placing no cap upon the overall amount of GHG emissions [32 ELR 10830] which could be traded, and imposing few overall constraints on the trading system. In Professor Bodansky's view, how well that trading system will perform remains to be seen. Its success or failure is likely to hinge upon how individual nations decide to implement it domestically, and on how well the domestic emissions trading systems selected by some countries "mesh" with the trading approaches established by other nations.

As Professor Bodansky analyzes it, the withdrawal of the United States from the Kyoto process "catalyzed" the non-U.S. negotiators to reach an agreement at Marrakesh. Those negotiators, led by the members of the European Union (EU) who wanted to take a "strong leadership role" in the Bonn and Marrakesh talks, were determined not to let the withdrawal of the United States put a stop to negotiations involving more than 100 countries around the world. The "biggest victors" in the talks at Bonn and Marrakesh, however, were not the EU nations but the so-called Umbrella Group, a coalition of non-EU developed countries who succeeded in achieving nearly all of their major positions.

"Is the Kyoto Protocol the right framework for going forward?," Professor Bodansky asked. He answered his own question by opining that the Kyoto Protocol has some "big problems" because it is "overly ambitious" in several respects. First, the emission-reduction targets are "quite tough," a fact that has led a number of observers to be concerned that individual nations will be unable to meet their targets. Second, precisely because the emission targets are so exacting, developed countries (such as the United States) thought that it was necessary to add quite a few complicated provisions to the agreement (such as emissions trading, the "six gas approach," clean development mechanisms, and the sinks provision) in order to help countries meet their targets efficiently. These provisions tend to require a high level of international cooperation in order to be implemented effectively; and it remains to be seen whether that cooperation will be achieved. Third, Professor Bodansky indicated, it was difficult to reach an agreement in Kyoto because of the very large number of nations that were directly involved in the negotiations. In retrospect, it would probably have made more sense to limit the negotiations to nations that were willing to take on targets for emission reduction. Notwithstanding those flaws, however, Professor Bodansky stated:

Kyoto is the only game in town. It has problems. We should all recognize those problems. But it's a lot better than going back to square one and trying to start all over again. What we need to do is to make the Kyoto Protocol work as best we can. . . . I remain cautiously optimistic that the whole process will have a successful outcome.⁹

Khesgi responded to the other panelists that even though we now understand climate change better than we did before, that doesn't mean that we have fewer uncertainties than we had before. "Sometimes newer estimates of uncertainty are larger," he stated. "For, example uncertainty regarding aerosol-forcing is larger than we had known it to be before." Khesgi also stated that "consensus does not mean we understand things better either. One can go through a consensus-building exercise and gain consensus. That's not science."

Turning to the Kyoto Protocol, Khesgi indicated that he essentially agrees with the Bush Administration's view that the agreement is "fatally flawed."¹⁰ He observed that the Kyoto Protocol does nothing to reduce the competitive economic disadvantage to countries that might want more ambitiously to reduce GHG. He also criticized the Kyoto Protocol's establishment of two categories of countries (Annex I and Annex II nations) with very different sets of responsibilities for limiting their emissions, stating that it is not clear that the approach moves us in the direction of meeting the overall objective of the 1992 UNFCCC. Finally, Khesgi opined that the long-term target of GHG stabilization, which is "well out in the future," does not relate to the excessively ambitious shorter term targets of the Kyoto Protocol. He declared:

To meet the [U.S.] Kyoto target for CO₂ emissions by 2010, there would have to be a 44% reduction [from current levels] in U.S. CO₂ emissions. That amount is equivalent to the entire amount of CO₂ emissions from transportation or from utilities. I think that saying this is overly ambitious is an understatement. It is just not realistic.¹¹

Szekely indicated that, from his own viewpoint, the Kyoto Protocol has flaws that are different from both the problems with Kyoto identified by Professor Bodansky and the criticisms of the agreement voiced by the Bush Administration. He stated that, especially in view of the rejection of the Kyoto Protocol by the United States, "our current thresholds for international emission reductions are actually quite modest. Rather than being overambitious, the agreement is probably too humble."

Moreover, because the Kyoto Protocol is "the only game in town," it may be that the world community is now too focused on the treaty's "technical minutiae" as well as on the problem of global climate change itself, at the same time that we are failing to "look at the big picture" by ignoring other potentially dangerous environmental phenomena, such as drought, the loss of land mass, and other vexing problems.

Szekely stated that the international community had gone through an experience analogous to the Kyoto process in the early 1980s when it negotiated the Montego Bay Convention on the Law of the Sea. There, too, a new U.S. administration backed out of the agreements that its predecessor had negotiated in international meetings. Additionally, there too all of the negotiators had relied upon certain scientific and technical assumptions, particularly in negotiating the key question of how to administer the mineral resources of the seabed.

In the Montego Bay Convention situation, Szekely observed, it was assumed that sea bottom natural resources could be extracted with technology that was nearly available. In fact, such technology has still not been developed commercially. Thus, Szekely stated, "in the end it was all a [32 ELR 10831] fiasco, a lamentable international experience. . . . We were fighting about something that could still not be materialized today." Something similar, he fears, may also occur with respect to the world's effort to avoid global climate change.

Cochran noted that the 1992 UNFCCC created the doctrine of "common but differentiated" national responsibilities, with the notion that developed countries had a responsibility to act first, because the problem had historically been created by their emissions, and that they could help the poorer countries with technology and other assistance.

She opined that, at this point, the best thing would be to have the rest of the world move forward at the same time as the United States "gets its own house in order" by developing a credible domestic policy on reducing GHG emissions and, eventually, rejoins ongoing international efforts. "It's a global problem," she said, "and I don't think a unilateralist approach—or even the sort of small group approach suggested by Professor Bodansky—will work in the end."

Ms. Cochran also took the view that, by not participating in the post-Kyoto negotiations process, both the United States and U.S. companies are "losing out . . . economically and environmentally." She noted that some U.S. energy companies, such as BP, Shell, DuPont, and others, have taken "an aggressive approach" to CO₂ emissions reductions, notwithstanding the fact that such reductions are not presently mandated by U.S. law. As she sees it, those firms must be convinced "there is a competitive advantage to their getting out in front like that." Moreover, she stated, "the rest of the developed world must see competitive advantages to increasing the efficiency of their operations and reducing CO₂ emissions since they are going forward with doing that."

Professor Bodansky observed that nothing in the Kyoto Protocol is intended to prevent undeveloped countries from reaching emission reduction targets. In fact, under the Kyoto process, precisely that is expected in the second or third commitment period.

Professor Bodansky also noted that some U.S. businesses are concerned that by not participating in post-Kyoto negotiations, the United States will now be unable to steer whatever international agreements do emerge in a "market-friendly" direction. One potential example of this, he suggested, is that because the United States did not ratify the Kyoto Protocol its representatives are now ineligible to serve on an interim executive board, formed in Marrakesh, that will serve the important function of creating administrative rules to implement the Kyoto Protocol's clean development mechanism. That may prove to be an opportunity lost for U.S. business interests.

Professor Bodansky also opined that whether one considers the Kyoto Protocol's emission reduction targets to be "overly ambitious" may well depend on what one anticipates will be the final GHG atmospheric concentration level to be attained under the Kyoto Protocol. If one assumes a final CO₂ concentration of 450 ppm, the Kyoto Protocol calls for "an economically appropriate emissions reduction trajectory" in the next 10 years. On the other hand, if a 550 ppm final concentration level is assumed, the Kyoto Protocol is "more ambitious over the next 10 years than would be an economically optimal emissions trajectory."

Szekely then made the point that because it accepted the "perverse, rhetorical" concept of "common but differentiated responsibilities" in the early 1990s, "the international community, in a way, is a victim of its own rhetoric and demagoguery!" To Szekely, that notion really means "you developed countries have already caused your harm. Now we [less developed nations] should have our chance to create the same mess." Instead of taking that mistaken path, Szekely stated that

we should have gone down the track of moving hand-in-hand, all of us together, because this is a global problem. Developed and developing countries should have agreed to engage in the same level of obligations. The differentiation should only have been in the arrangements for making the developed countries help the developing countries begin complying from the very start.¹²

At that point, Professor Squillace invited questions and comments from members of the audience. One person asked Professor Bodansky whether any thought has been given to making the "safety valve approach" that he had described into a "two-edged" mechanism, by ratcheting up GHG emission limitations if the costs of controlling such emissions prove to be less than projected. Professor Bodansky responded that, under a safety valve approach, such a result would be much more likely to occur, since the only credible argument for not having stricter limits to begin with is a fear that they will be too expensive. Cochran then stated that the safety valve approach strikes her as a complicated and complicating feature that attempts to respond to the basic difficulty of meeting the Kyoto emission reductions target in the first instance. She would prefer an approach that rachets down GHG emission levels on an economywide basis over a reasonable time period, thus giving CO₂ emitters adequate advance notice to allow them to make all necessary capital stock changes and investments.

A second questioner asked whether the panel thought there might be any truth in recent press reports that Japan has been having second thoughts about some of the processes that have been developed for implementing the Kyoto Protocol. Professor Bodansky answered by noting that "as a mathematical fact, if Japan dropped out of Kyoto, the Kyoto Protocol could not enter into force. With the United States out, Japanese participation is essential to get to the 55% level of CO₂ emissions in Annex I countries." For just that reason, he stated that, Japan was able to get "a relatively good deal for itself" in the Bonn and Marrakesh negotiations. It is thus unlikely, he concluded, that the Japanese will now decide to abandon the Kyoto process unilaterally.

Another environmental law professor asked whether there is not now a real possibility of increases in sea level even before any of the emission limitations agreed to in Kyoto have been implemented. If that is so, he asked, "shouldn't we now be thinking of getting international aid and resources to low-lying nations to help them cope with this problem?" Professor Bodansky responded that, in fact, at the international discussions in Bonn there was an agreement to create an "adaptation fund" to provide assistance to countries that experience sea level rise and other kinds of adverse impacts from climate change. However, Professor Bodansky also stated that, "thus far, not enough money has been made available in the fund. It is obviously not going to be sufficient."

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Finally, one audience member observed that "whenever I teach global climate change, at the end of my environmental law course, I almost always end up in tears, and all I can see is darkness." He stated that, as he sees it, "the Kyoto Protocol is both too ambitious and not ambitious enough. We already know that many of the emission reduction commitments agreed to in Kyoto will not be met. Yet even if they somehow are met, there will still be climate change problems in the meanwhile, at least in the short run." His question for the panelists was "can any of you give me any ray of sunshine?"

Cochran answered by saying: "Welcome to my job!" She said that even though she found March 2001 to be especially depressing, because of the Bush Administration's change of position regarding the necessity to control CO₂ emissions, shortly after that "some hopeful signs" began to emerge. She is encouraged by the way that the international community has come together in its recent post-Kyoto discussions even without the participation of the United States, and about the fact that Congress is considering the possibility of domestic controls on CO₂ emissions.

Khesgi indicated that he has been pleased to note that some nations, such as China, which have been unwilling to take on binding commitments to limit their GHG emissions have nonetheless been taking voluntary measures to limit their emissions levels. He is also encouraged that the Bush Administration is trying to promote the development of new techniques that will have zero emissions of GHG.

Szekely stated that he doubts that the problem of global climate change can be addressed properly at the international level unless the United States joins in. He said "the ray of hope for me is that, fortunately, things don't always necessarily stay the same in the United States. Change in the [United States] is cyclical. We can see the great change that the input of the United States can make coming sooner or later."

Finally, Professor Bodansky suggested that it was important for the audience to keep in mind that "we're talking about a long-term problem." He concluded:

We have actually made a lot of progress in the last 20 years in gaining international attention to global climate change as an important issue, and in taking the first steps toward[] organizing an international response to a very difficult problem, about which there are a lot of uncertainties.¹³

What Makes Sense Now?: Observations on the Climate Change Debate and Its Implications

The global climate change panelists' thoughtful remarks raise a number of provocative, significant questions. One threshold issue is whether the kinds of ongoing uncertainties regarding the science of global climate change, articulately described in Khesgi's presentation, should pose a barrier to setting international and domestic policies with respect to GHG emissions. In my own view, the answer to that question is clearly no. Cochran seems entirely correct in her conclusion that we now know enough about the science of the "greenhouse effect" and climate change that it would be irresponsible not to take collective action to prevent and/or mitigate the problem.

The advisability of taking policy decisions in the context of scientific uncertainty is hardly unique to discussions of global climate change. Environmental policymakers—in the judiciary, the executive branch, and Congress alike—have grappled with precisely this issue, in a wide variety of contexts, from the early days of modern environmental regulation.¹⁴ Moreover, as John Browne, the Chief Executive Officer (CEO) of the energy company BP, perceptively observed in 1997, "the time to consider the policy dimensions of climate change is not when the link between [GHGs] and climate change is conclusively proven, but when the possibility cannot be discounted and is taken seriously by . . . society."¹⁵

Khesgi may well be correct in his assertion that, given current areas of uncertainty, we do not yet know enough to design a GHG emission control program "for all time." New knowledge may indeed lead to "adjustments" in such a program, the nature and extent of which may presently be unforeseeable. That possibility notwithstanding, however, it seems entirely unwise to ignore the recent finding of the IPCC that "an increasing body of observation gives a collective picture of a warming world and other changes in the climate system."¹⁶ Holes in our knowledge of the earth's atmosphere and climate system may well persist—and we would be irresponsible not to make sustained efforts to eliminate them by careful research. At this stage, however, such gaps provide a flimsy and incoherent excuse for collective inaction.

If, notwithstanding some uncertainties, we do indeed possess enough knowledge to establish both global and domestic policies to control the atmospheric emission of GHG, what should those policies be? The AALS panelists, along with other knowledgeable experts and interested parties, have provided an especially rich variety of policy options and proposals.

Professor Bodansky was undoubtedly on the mark with his suggestion that reductions in GHG emissions are going to be needed to deal with the "real problems" that such emissions are causing, and that a mandatory approach to GHG emission reduction is a necessity if genuine progress is to be made in this area.

Some of Professor Bodansky's other policy recommendations, however, seem more problematical. For example, Professor Bodansky's notion that GHG reduction should "start unambitiously and then ramp up," while appealing in certain respects, appears to ignore the urgency that seems appropriate in view of recent, disturbing data concerning the pace of global climate change in the past decade.

On the very day that followed the AALS' global climate change panel, a journalistic article by Darcy Frey, entitled "Watching the World Melt Away: The Future as Seen by a Lonely Scientist at the End of the Earth," was published in the New York Times magazine.¹⁷ Frey's essay described the [32 ELR 10833] dedicated work of George Divoky, an ornithologist who has spent three months per year for the past 27 years observing the guillemot, an arctic bird species, on remote Cooper Island in northern Alaska. Divoky's research found that, in response to a gradual warming of arctic temperatures, guillemots have ranged significantly farther north in Alaska to find food. The species has laid their eggs earlier and earlier each year and (since the mid-1990s) the size of the guillemot population has decreased dramatically as arctic temperatures have rapidly risen.

As unsettling as the results of Divoky's guillemot studies are, they are hardly the only evidence of present-day impacts of global climatic change. In a well-documented summary of recent scientific examinations of climate change, Seth Dunn and Christopher Flavin report:

There is evidence that regional climate changes have already affected a wide range of physical and biological systems. The changes include glacier shrinkage, permafrost thawing, later freezing and earlier buildup of ice on rivers and lakes, lengthening of mid-to-high latitude growing seasons, shifts of plant and animal ranges, declines of plant and animal populations, and earlier flowering of trees, emergence of insects and egg-laying by birds.¹⁸

In view of these unwelcome developments, global climate change seems to be far more than a mere risk or theoretical possibility. I do not wish to suggest that this complex problem calls for a precipitous or ill-coordinated response. Nonetheless, the startling and well-documented progress of global warming to date does appear to call for reasonably prompt and vigorous responsive action. In contrast, a set of "unambitious" remedial steps now seem to fall short of what is needed.

Professor Bodansky's suggestion that the world community adopt a "safety valve" approach to GHG reduction, reducing agreed-upon emission reduction targets if reaching them will exceed a preestablished economic cost, seems similarly flawed. The aggregate costs of extensive pollution control measures are notoriously difficult to predict. To the extent that they are inadvertently underestimated, the emission reduction freeze that would automatically result (in a "safety valve" system) might well disrupt ongoing GHG control measures that are vitally needed to overcome widespread and increasing environmental harm—measures that could perhaps go forward to completion for only a modest additional expense. Moreover, as Ms. Cochran observed, safety valve provisions would be yet another complicating feature in what is already, perhaps, an unduly lengthy and complex international agreement to decrease the emission of GHG.

What are the merits of Khesgi's suggestion—adopted by the IPCC—for a long-term "research/implementation/adaptation" approach to global climate change? Notwithstanding Szekely's provocative expressions of misgiving,¹⁹ as a general matter at least this overall framework strikes me as sound and workable. At the same time, however, it must be noted that the bare notion of a cooperative global regime of research, implementation, and adaptation leaves certain important questions unresolved.

Khesgi's suggestion that research into the scientific aspects of climate change be continued is undoubtedly sound. One would hope, however, that in this context the notion of "research" should not be narrowly confined. Additional research —both public and private—is clearly also needed for the advancement of low-carbon energy systems, including wind turbines, biomass systems, solar power, fuel-cell technology, hybrid-electric cars, and other highly promising technological innovations. In the United States and elsewhere, such techniques can and should be encouraged by direct government subsidies, tax credits, reform of government procurement policies, and other means.

Khesgi's declaration of support for both "mitigation" and "adaptation," moreover, did not address the question of the relative importance of those types of measures. Nor did his remarks discuss the appropriate mix of techniques that should be encouraged within each category.

Governmental policies to limit the emission of GHG might include a variety of measures, such as mandatory technology or performance standards, carbon and energy taxes, reformed pricing policies for energy transmission, subsidies and tax incentives that favor carbon-free energy sources, emission trading systems, voluntary industrial agreements, and product bans. Such policies might also create incentives for the use of technologies and practices that promote efficient energy use in manufacturing, transportation and other economic sectors. Additionally, they might eliminate any and all subsidies and policies that tend to encourage the use of carbon-based energy sources.

Standing alone, none of these policy approaches to "mitigation" seems sufficient. Instead, what appears appropriate is a pragmatic, judicious blending of these policies, together with a practical legal mechanism for providing "credit" to private enterprises which voluntarily choose to limit their emission of GHG before they are legally required to do so. Each nation (including the United States) has its own political culture, the nature of which will greatly influence the unique mix of domestic policies that will be the most practical and efficient.

One set of suggested U.S. domestic policy precepts that falls well short of the mark, however, is the Bush Administration's recently announced initiative for slowing the buildup of GHG.²⁰ This flawed plan would allow the current growth in U.S. GHG emissions to continue, albeit at a very slightly decreased pace, until 2012. It would contain no mandatory elements, relying instead on tax credits to encourage U.S. private firms and individuals to limit their CO₂ emissions voluntarily.

The Bush Administration's mitigation plan obviously reflects deep skepticism on the Administration's part as to whether GHG emissions pose a genuine problem. While many of the rest of the world's developed nations will likely soon embark on a meaningful program of mandated GHG emission reductions, under the Administration's CO₂ initiative the United States (which remains the single largest national generator of GHG emissions) will continue to increase its per capita emission levels for a full decade before even examining whether any additional GHG controls are needed.

[32 ELR 10834]

Taken together with his March 2001 decision to withdraw from the Kyoto Protocol framework, President George W. Bush's publicly announced climate change policies may—over the long term—come to be viewed as one of our nation's most ill-informed, myopic, and insensitive set of presidential decisions. The president's CO₂ initiative, which was immediately received with expressions of anxiety, doubt, and suspicion by our own allies,²¹ runs afoul of George Washington's sage recommendation (in his farewell address of September 17, 1796) that our nation's policies "observe good faith and justice towards all nations; cultivate peace and harmony with all."²² Nor does it reflect what our Declaration of Independence referred to as "a decent respect to the opinions of mankind." Instead, the Bush CO₂ plan represents a lamentable abdication of needed, responsible U.S. leadership, in the context of a known, well-recognized and significant global problem, that puts numerous other nations in needlessly difficult situations.

"Adaptation" is indeed the final, important part of any logical, cooperative strategy to respond to global climate change. Very clearly, adaptation measures must never be viewed as a substitute for steps needed to minimize—and stabilize—atmospheric concentrations of CO₂ and other GHG. Instead, adaptation should be viewed as a "cushion" or "safety net" for any impacts of global climate change that simply cannot be avoided, notwithstanding sustained, vigorous and extensive mitigation efforts.

That being said, it would behoove the world community (including the United States) to provide adequate funding for international climate change "adaptation funds," and to begin long-term "contingency planning" for various possible "worst-case scenarios" of adverse impacts from climate change. Such planning should consider all potential negative impacts, from sea level rise, land mass loss, drought, flooding, heat waves, high winds and avalanches, through reduced crop yields, decreased availability of drinking water, and increases in diseases and heat stress mortality.²³ It should also provide mechanisms for sound, rapid, and practical assistance to all human victims of the impacts of climate change, on an equitable and cost-effective basis.

Finally, what are the prospects for a successful, timely effort to control GHG emissions fully and effectively and without severe environmental harm? At this point there are no certain answers. The buildup of GHG from human sources in our planet's atmosphere has taken place over a long period of time. In recent years it has increased considerably.²⁴ Bringing those atmospheric changes and the dangers they pose to a lasting end—while avoiding serious harm to people, property, health, and the natural environment—may well present a persistent and formidable challenge for a very long while to come.

1. CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS, CONTRIBUTION OF WORKING GROUP I TO THE THIRD ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (IPCC) (J.H. Houghton et al. eds., 2001) [hereinafter CLIMATE CHANGE 2001].

2. United Nations Framework Convention on Climate Change, May 29, 1992, art. 2, 31 I.L.M. 849 (1992).

3. Mr. Khesgi also stated that there are also uncertainties as to climate change, and the impacts that would ensue from climate change, as well as uncertainties regarding changes in radiative forcing and changes in aerosol concentrations.

4. Current atmospheric CO₂ concentrations average approximately 370 ppm. In contrast, pre-industrial atmospheric CO₂ concentrations are estimated to have averaged 280 ppm.

5. In response to a question from Prof. Sandy Gaines of the University of Houston Law School, Mr. Khesgi and Professor Bodansky defined geo-engineering as "intentionally changing the climate system in order to improve it in some way." The form of geo-engineering that has received the most attention recently is "ocean fertilization," i.e., adding iron to the ocean to increase its uptake of carbon. Other potential examples include reforestation and adding aerosols to the atmosphere to change climate.

6. Ms. Cochran suggested that a sound response strategy to global climate change should include government subsidies for further research and development, as well as federal procurement policies that focus on renewable energy resources and alternatives to fuels whose burning omits GHG. She also favors a "mandatory domestic program" to decrease CO₂ emissions (which includes a cap and trade approach combined with long lead times for sound industrial capital planning) and "controlling for natural vulnerability" by "adapting to that aspect of climate change that is inevitable."

7. Daniel Bodansky, Remarks at the Meeting of the Association of American Law Schools (AALS), New Orleans, La. (Jan. 5, 2002) [hereinafter Bodansky Remarks].

8. See also Donald A. Brown, The U.S. Performance in Achieving Its 1992 Earth Summit Global Warming Commitments, 32 ELR 10741 (July 2002).

9. Bodansky Remarks, supra note 7.

10. See also Richard N. Cooper, The Kyoto Protocol: A Flawed Concept, 31 ELR 11484 (Dec. 2001).

11. Haroon Khesgi, Remarks at the Meeting of the AALS, New Orleans, La. (Jan. 5, 2002). In response to a subsequent question from the audience, Khesgi clarified his views by observing that, in his opinion, we do need international cooperation, and that international negotiations are a means for getting that. Nonetheless, he stated that, "the Kyoto Protocol has flaws. . . . Perhaps we should consider something different. It is not clear to me that acceptance of a flawed treaty really improves things."

12. Alberto Szekely, Remarks at the Meeting of the AALS, New Orleans, La. (Jan. 5, 2002). Mr. Szekely also stated that he is something of a "lone voice" in Mexico for espousing that view.

13. Bodansky Remarks, supra note 7.

14. See, e.g., Reserve Mining Co. v. United States, 498 F.2d 1073, 4 ELR 20598 (8th Cir. 1974); Ethyl Corp. v. EPA, 541 F.2d 1, 6 ELR 20267 (D.C. Cir. 1976); DANIEL A. FARBER, ECO-PRAGMATISM: MAKING SENSIBLE ENVIRONMENTAL DECISIONS IN AN UNCERTAIN WORLD (1999).

15. Address of BP Group CEO John Browne at Stanford University, Palo Alto, Cal., May 19, 1997.

16. CLIMATE CHANGE 2001, supra note 1.

17. Darcy Frey, George Divoky's Planet: Watching the World Melt Away: The Future as Seen by a Lonely Scientist at the End of the Earth, N.Y. TIMES (Magazine), Jan. 6, 2002, at 26.

18. Seth Dunn & Christopher Flavin, Moving the Climate Agenda Forward, in STATE OF THE WORLD 2002, at 28 (2002).

19. To me, at least, Mr. Szekely's recommendations are rather unclear and thus difficult to assess objectively. In particular, I found it difficult to understand precisely what he had intended by his sweeping recommendation that we "fundamentally rethink the world, its economy, and its models of development."

20. Andrew C. Revkin, Bush Offers Plan for Voluntary Measures to Limit Gas Emissions, N.Y. TIMES, Feb. 15, 2002, at A6.

21. Suzanne Daley, Europeans Give Bush Plan on Climate Change a Tepid Reception, N.Y. TIMES, Feb. 15, 2002, at A6.

22. 2 SAMUEL ELIOT MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 68 (1972).

23. CLIMATE CHANGE 2001: IMPACTS, ADAPTATION AND VULNERABILITY, CONTRIBUTION OF WORKING GROUP II TO THE IPCC 5-7 (James J. McCarthy et al. eds., 2001).

24. The IPCC has concluded that the 1990s were the warmest decade—and 1998, the warmest year—since instrumental recordkeeping began in the 1860s. See CLIMATE CHANGE 2001, supra note 1, at 12.