Gatting the New Climate Treaty Right: Leveraging Energy Subsidies to Promote Multilateralism

In a previous paper, Trading Up Kyoto: A Proposal for Amending the Protocol, I argued that not only do international trade rules, specifically the operation of the World Trade Organization ( WTO ) agreements, hinder international climate change treaty negotiations, but also that applying exceptions to circumvent trade rules is doctrinally difficult and normatively unsettling, primarily because of WTO jurisprudence, the colorable intent of nations that are violating WTO rules in the guise of mitigating climate change, and the challenges to creating environmental exceptions to trade rules to facilitate emissions reduction. To illustrate this point, I focused on ongoing trade disputes involving a few renewable energy subsidies through which some nations are apparently seeking to reduce their emissions. I then argued that an effective climate change treaty should counteract the impact of trade and trade rules. In this Article, I argue that nations should negotiate a plan to phase out harmful subsidies, particularly fossil fuel subsidies. The idea of eliminating subsidies is not new. It has been considered an important solution to reduce greenhouse gas emissions, and one that can complement WTO rules. This Article adds another dimension to this solution, i.e. leveraging subsidies within the new climate change treaty to encourage multilateralism. Multilateralism is essential to address the leakage and competition problems arising from the nonparticipation of all major greenhouse gas emitters. Effective unilateral measures to counter leakage violate WTO rules. I argue that nations can counteract this problem by incorporating into the new climate change treaty a mechanism to phase out harmful subsidies in exchange for a right to provide beneficial subsidies as one policy tool that would promote climate change mitigation efforts significantly. This proposal would complement, and not replace, existing provisions; would comply with WTO rules; would mimic other international environmental treaties, notably CITES, the Basel Convention, and the Montreal Protocol, which have addressed tensions between trade and an environmental problem by incorporating trade measures within the treaty

Trading Up Kyoto: A Proposal to Amend the Protocol, Part I

This is the first of two Articles that analyze the dynamic and complex relation between international trade law and the Kyoto Protocol. These Articles argue that the Kyoto Protocol undermines efforts to negotiate a meaningful climate change treaty, and alternatively, they propose a new treaty framework to replace the Protocol. This first Article sets out the trade and climate treaty conflict and demonstrates that the problem cannot be addressed within the current framework of international trade law. Developing nations that are now emerging economies and major greenhouse gas emitters are not bound by targeted emissions reduction obligations under the Kyoto Protocol. Their exclusion in an era of trade liberalization under rules of the World Trade Organization (WTO) creates loss of competition and leakage concerns among developed country signatories. These concerns have caused developed nations, such as the United States, to reject Kyoto Protocol obligations. Others, notably Canada, Japan, and Russia, have also rejected continued obligations under the Protocol. Solutions to these problems conflict with WTO rules, as demonstrated by efforts by some nations to promote their renewable energy sector in a manner that also addresses competition concerns. Specifically, countries have provided renewable energy subsidies (RES), but conditioned their availability on the use of domestic content. WTO member nations have challenged such RES under WTO rules, including specific agreements, notably the Agreement on Subsidies and Countervailing Measures (ASCM) and Trade-Related Investment Measures (TRIMs). In one recent dispute, a WTO Panel ruled that the RES violate WTO law. Further, these measures do not qualify for environmental exceptions under WTO law, for both legal and normative reasons. A new climate change treaty is needed in 2015 to addresses the loss of competition and leakage problems

Global Warming: A Second Coming for International Law?

Currently, there are no adequate mechanisms under international law to balance the competing tensions climate change presents to state sovereignty. On one hand, climate change threatens state sovereignty because the catastrophic loss of life and property of millions of people would deprive states of control over their domestic territories. Yet, other states rely on claims of their sovereignty to reject international legal obligations to mitigate climate change. This Article attributes the inadequacy of international law in the climate context to the evolution of the international community into an economic union that has historically privileged material interests over legal rights. It argues that given the high improbability of supplanting this economic union with a legal union that protects sovereign rights while also checking sovereign powers, an entirely innovative approach is necessary to redress climate change-related rights violations. It further argues that the focus of law and policy makers should shift away from inadequate explanations of the relevance of international law provided by current international legal theories toward normative-based solutions to address violations of both sovereignty and human rights

A New Environmental Order: Laying the Legal and Administrative Foundation for Global Environmental Governance

This dissertation argues that global environmental governance can be strengthened by structuring legal and administrative mechanisms to meet the demands of the current world order. In particular, this dissertation provides a theoretical analysis of those legal and administrative mechanisms that can improve environmental governance in a globalizing world. However, since it is a theoretical analysis, this dissertation does not assert that the analysis in itself will simplify the process of strengthening the rule of law, resolve all environmental issues, or require every single environmental problem to be addressed through an international process. Rather, the objective of the analysis is to provide a theoretical understanding of legal and administrative alternatives which, in the context of globalization, would advance ongoing efforts to strengthen global environmental governance

A Response to the IPCC Fifth Assessment

This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result that is the product not only of each scholar’s individual knowledge but also of the group’s robust discussion

A Response to the IPCC Fifth Assessment

The Intergovernmental Panel on Climate Change\u27s (IPCC) Fifth Assessment Report presented significant data and findings about climate change. But the IPCC\u27s working groups\u27 summaries for policymakers avoid making normative statements about the IPCC\u27s findings. The authors, members of the Environmental Law Collaborative, bridge this gap by identifying the normative claims that stem from the working groups\u27 summaries to spark deeper discussion and help shape the IPCC\u27s sixth assessment

A Response to the IPCC Fifth Assessment

This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result that is the product not only of each scholar’s individual knowledge but also of the group’s robust discussion