Download The Kyoto Protocol: Bad News for the Global

(2004) 14 JOURNAL OF ENVIRONMENTAL LAW & PRACTICE 27
The Kyoto Protocol:
Bad News for the Global Environment
Bruce Pardy*
The Kyoto Protocol will have little effect upon atmospheric concentrations of greenhouse
gases. Even so, Kyoto and the U.N. Framework Convention on Climate Change could have
established a path to solving the climate change problem. Unfortunately, they do not. Instead,
they contain features that, if applied to future international environmental agreements, will make
resolution of global environmental problems more difficult: Emission targets are expressed in
terms of reductions, not limits; each party has a different target, in accordance with its
“differentiated responsibilities”; the more pollution a country has produced in the past , the more
lenient are its obligations; economic development is encouraged to the detriment of the global
atmosphere; the objective is not the prevention of climate change, but its management; progress
on climate change is proclaimed but not achieved. Kyoto is the latest in a series of international
environmental “first steps” that are politically appealing but inadequate in form as well as
substance.
______________________
1. INTRODUCTION
In atmospheric terms, the Kyoto Protocol1 is insignificant. There is wide agreement that
Kyoto will make little difference to the accumulation of greenhouse gases and the progression of
*
Associate Professor, Faculty of Law, Queen's University. I would like to thank Jess Fortner, LL.B., for his
valuable research work, and Professors Sara Slinn and Art Cockfield of Queen’s Faculty of Law, AnnaMarie Castrodale and Julie Ashford for their helpful comments. Any errors are my own.
1
FCCC/CP/1997/L.7/Add.1 <http://unfccc.int/resource/docs/convkp/kpeng.html> [Kyoto or the Protocol].
2
global climate change 2 even if the agreement enters into force 3 and is complied with. Kyoto is
not an important environmental event.
Despite its ineffectiveness in protecting the atmosphere, Kyoto could have been valuable
in two other respects. First, it could have established a legal model for future climate change
solutions, and indeed for progress on other global environmental problems. Second, it could have
been politically or symbolically significant by representing an important first step towards an
ultimate solution to climate change and an acknowledgement by the international community of
the importance of the climate problem.
Unfortunately, Kyoto fails to serve either of these other purposes. Its precedent value as a
legal model is negative, and it is not a meaningful first step towards preventing climate change.
Kyoto’s features, if applied to future international environmental agreements, will make
resolution of global environmental problems more difficult. This assessment is not based upon a
denial of climate change or of the urgent need for international and domestic measures to deal
2
See for example, M. Doelle, “From Kyoto to Marraiech; A Long Walk Throught the Desert: Mirage or
Oasis?” (2002), 25 Dalhousie L.J. 113; M. Babiker & R. Eckaus, "Rethinking The Kyoto Emissions
Targets"
Climatic
Change,
Volume
54,
Issue
<http://scholarsportal.info/pdflinks/03072822401418837.pdf>;
"Stabilization
of
Atmospheric
Concentrations
of
J.
4,
Koch,
Greenhouse
U.
September
Dayan
Gases",
&
Climatic
2002
S.
Amir,
Change
<http://scholarsportal.info/pdflinks/03072822374218817.pdf>, Volume 57, Issue 1, March 2003; S. Dessai
& M. Hulme, "Climatic implications of Revised IPCC Emission Scenarios, The Kyoto Protocol and
Quantification
Uncertainties"
Integrated
Assessment
<http://scholarsportal.info/pdflinks
/03072822104418333.pdf> Volume 2, Issue 3, 2001, at 159-170; R. Arcas, "Is The Kyoto Protocol An
Adequate Agreement To Resolve The Climate Change Problem?" European Environmental Law Review
<http://scholarsportal.info/pdflinks/03072822272618595.pdf>, Volume 10, Issue 10, October 2001, at 282294.
3
At the time of writing, Russia and the United States have not ratified the Protocol, and ratification by one of
them is necessary for it to enter into force. The U.S. has clearly stated that it will not ratify. Russian
President Vladimir Putin expressed doubts about his country’s intentions at the World Climate Change
Convention in Moscow in September 2003, but then in May 2004 stated that Russia would ratify, after the
European Union supported Russia’s bid to join the World Trade Organization. For updates, see the United
Nations Framework Convention on Climate Change website, <http://unfccc.int/>.
3
with it.4 On the contrary, the severity of the problem, and the dire state of the global environment
in many other respects, leads more forcefully to the conclusion that Kyoto is more detrimental
than advantageous. Environmentally, legally, and politically, the world would be better off with
no international greenhouse gas agreement at all.
Kyoto’s main instrument is a set of reduction targets for greenhouse gas emissions.5 The
Protocol establishes the overall reduction target for greenhouse gas emissions at five per cent
below 1990 levels by the ye ar 2012, 6 and identifies specific emissions targets for each party. 7
Kyoto has six features that prevent it from being an effective climate change protection
plan and model for international environmental governance. Each is described in the section
below. Following this analysis, I offer wording for Kyoto and the United Nations Framework
Convention on Climate Change 8 that would have avoided these flaws.
2. KYOTO’S CRITICAL FLAWS
(a) The wrong targets: reductions rather than limits
Meet the Smith family. There is Mom, Dad, and three children, Ted, Kate, and Rose.
They don’t know what their monthly income is (it is $4,000), but their monthly spending is
$10,200. Mom and Dad spend $3,000 each, Ted and Kate spend $2,000 each, and little Rose
spends $200. They also don’t know what their overall debt is (it is $100,000) but they know it
4
Other critical reviews of Kyoto cite the uncertainty of climate change science and the cost of making
greenhouse gas reductions. For example, see F. Murkowski, “The Kyoto Protocol is Not the Answer to
Climate Change” (2000), 37 Harvard J. Legis. 341.
5
The Protocol has other controversial aspects, such as its provision for a range of approaches to allow parties
to reach their targets in ways other than outright reduction of their greenhouse gas emissions, including
emissions trading, “clean development mechanisms”, “projects”, “joint fulfillment” and greenhouse gas
removal by “sinks”. For a review of these and other aspects of the Protocol, see J.T. Bryce, “Controlling the
Temperature: An Analysis of the Kyoto Protocol” (1999), 62 Sask. L. Rev. 379.
6
Supra note 1, Article 3(1).
7
Annex B.
8
31
I.L.M.
849
(1992),
signed
May
29,
1992,
entered
into
force
March
21,
1994
<http://unfccc.int/resource/docs/convkp/conveng.pdf> [the Framework Convention], to which Kyoto is a
protocol.
4
must be high because they keep getting overdue bills in the mail. When they finally start to be
hounded by collection agencies, they decide something must be done. Led by Mom and Dad, the
family agrees on a new rule: everyone must reduce their spending by 5% (except Rose, because
she’s too young).
The Smiths’ new rule is the domestic equivalent of the Kyoto Protocol. It reduces
spending [emissions] but the amount of the reductio n is arbitrary. It is not related to income
[atmosphere’s capacity to tolerate greenhouse gases [GHGs] without change], or to debt [the
amount by which the concentration of GHGs in the atmosphere already exceeds the
concentration at which climate change occurs]. Their resolution will require adjustment and
sacrifice, more than they would like to make. Their monthly deficit [annual GHG emissions
beyond atmospheric capacity to tolerate without change] will be smaller than it otherwise would
have been, but it will still be massive. Their overall debt will continue to increase. The longer
they continue with their new approach, the worse shape they will be in. At least they are
preventing the problem from growing as quickly as it otherwise would? except that Rose [the
developing world] is exempt, and she is learning fast how to spend lots of money.
As with the Smiths’ plan, Kyoto has been formulated in terms of emission reductions,
which are relative, not emission limits, which are absolute. The targets have been determined by
measuring the level of inconvenience they will produce, not by calculating the level of reduction
that is necessary to solve the problem. Like the Smiths’ financial troubles, the GHG problem
requires asking painful questions : (a) what is the present concentration of GHGs in the
atmosphere?9 (b) What is the maximum concentration of GHGs in the atmosphere that causes no
climate change?10 (c) How long do GHGs remain in the atmosphere? (d) Based on these
estimates, how much GHG can be produced each year without adding to the overall
concentration? (e) Therefore, what targets are necessary to get from (a) to (b)? In other words, if
9
The present atmospheric concentration of carbon dioxide has been estimated at about 360 parts per million,
compared to pre-industrial concentration of about 280 parts per million. (R. Torrie and R. Parfett, “Mind
the Gap” Alternatives Journal, 26:2 (Spring 2000) 22 at 23.) The reduction in present emissions would
have to be enormous simply to stabilize present concentrations. For example, Torrie and Parfett state that
stabilizing at present concentrations would require emissions to be reduced by 70 per cent by 2100. (Ibid).
10
This question cannot be asked under the Framework Convention and Kyoto, because it is so far out of
range of the measures contemplated under the regime. As discussed under feature (e) below, the purpose of
the Framework Convention is not to prevent or even stabilize climate change, but to manage it.
5
after targets are applied, emissions of GHGs are still adding to atmospheric concentration, then
the reduction is too small. Expressing targets as percent reductions rather than total or per capita
emissions allows Kyoto to avoid the hard questions, 11 yet gives the appearance that important
and difficult steps are being taken. 12 What is necessary should define what is possible, not the
other way around.
(b) Differentiated responsibilities: targets vary from country to country
Article 3(1) of the Framework Convention states, “The Parties should protect the climate
system….on the basis of equity and in accordance with their common but differentiated
11
“Scientific issues were not much discussed in Kyoto”, B. Bolin, “The Kyoto Negotiations on Climate
Change: A Science Perspective,” Science 279, (16 January 1998), quoted by R. Benedick, “How to Salvage
the
Kyoto
Protocol”
(Weathervane:
A
Digital
Forum
on
Global
Climate
Policy,
1998)
<http://www.weathervane.rff.org/ pop/pop5/benedick.html>.
12
The Government of Canada recently launched one of its Kyoto initiatives, the “One-Tonne Challenge”,
which calls on individual Canadians to reduce their GHG emissions by one ton per year, or about 20
percent (<http://climatechange.gc.ca/onetonne/>). The form of this program reflects the Kyoto preference
for measuring progress in terms of reductions instead of total emissions. While the program calls for
voluntary reductions, it nevertheless suggests that the responsibility of all Canadians is reduce their own
GHG emissions by 20%, without regard for whether their emissions are presently high or low. At a hearing
of the Standing Committee on Environment and Sustainable Development on the One-Tonne Challenge,
one of the members of the Committee, Bernard Bigras of the Bloc Quebecois, questioned the fairness of the
program, comparing the low increases in emissions between 1990 and 2000 in the residential (5%) and
automobile (9%) sectors with the 50% increase in the oil and gas sector. His question was “…those who
have made efforts —the industrial sector; the residential sector, with less than 5% [increase]; the automobile
sector, with less than 9%—have a goal of reducing emissions by 20%…when in the meantime letters of
intention to limit greenhouse gas emissions to 15% have been signed with the oil and gas sector…the
largest producers and those who have the highest growth rates in terms of emissions are the ones who are
the least penalized. Do you not think that your system is unfair?” The question went largely unanswered by
the officials from the Department of Natural Resources and Department of the Environment. (Standing
Committee on Environment and Sustainable Development, 37th Parliament, 3rd Session, 10 March 2004
<http://www.parl.gc.ca/infocom/PubDocument.asp?DocumentID=1243576> at 1630.)
6
responsibilities and respective capabilities...”. 13 The targets in Kyoto reflect this idea. 14 In Article
3(1), the overall target is to reduce greenhouse gas emissions to a level five per cent below 1990
levels by the year 2012. A target of five per cent below 1990 levels would itself reflect
differentiated responsibilities if it were imposed in that form on all parties, but the protocol
differentiates between nations to an even greater extent. Annex B sets out specific emissions
targets for particular countries, which vary from the most demanding eight per cent reduction
from 1990 levels, 15 to the most lenient eight per cent increase from 1990 levels. 16 Targets for
emerging economies of the Eastern bloc such as Ukraine and Russia are expressed in terms of
1995 emission levels.17 There are no emissions targets at all for developing countries. 18
The use of differentiated responsibilities in an international environmental agreement is
inconsistent with the idea that all parties undertaking a common activity should be subject to the
same rules. 19 Consider the application of differentiated responsibilities in the domestic context.
13
Principle 7 of the Rio Declaration on Environment and Development, U.N. Doc.A/CONF.151/26; 31
I.L.M. 874 (1992) [Rio Declaration], also refers to “common but differentiated responsibilities”.
14
This principle is confirmed in Article 10 of Kyoto: “All Parties, taking into account their common but
differentiated responsibilities and their specific national and regional development priorities, objectives and
circumstances…”
15
Which apply, for example, to Austria, Belgium, France, and the U.K.
16
Iceland.
17
Reduction targets for countries such as Russia and Ukraine may actually allow them to increase emissions
because economic stagnation has caused their emissions to shrink by around 30% from 1990 levels: C.
Batruch, “’Hot Air’ as Precedent for Developing Countries? Equity Considerations” (1998/99) 17 UCLA J.
Envtl. L. & Pol. 45 at 46.
18
The terms “developed”, “industrialized” and “North” are used here to refer collectively to the nations of
Europe (including Iceland), the United States, Canada, Japan, Australia, New Zealand, and those that were
part of the former Eastern Bloc (referred to in Annex B of the Protocol as “undergoing the process of
transition to a market economy”). The developed countries have reduction targets identified in Annex B.
The terms “developing” and “South” are used to refer to the rest of the countries on Earth, which are
considered to be less economically developed and contain a greater proportion of the world’s poor. These
countries do not have reduction targets under Kyoto.
19
Although the practice of identifying different levels of responsibilities between countries in international
law is not new, the Framework Convention is the first multilateral environmental agreement to
unambiguously adopt the principle of “common but differentiated responsibilities”: C. Stone, “Common
but Differentiated Responsibilities in International Law” (2004) 98 Amer. J. Int’l L. 276 at 278-279.
7
Take as an example the problem of excessive speed on a highway. Assume that authorities take
the same approach to the problem of speeding as Kyoto does to greenhouse gases. A new rule for
highway speed is proposed that says that all drivers must reduce their maximum speed by 10%
from the year before. This rule would, in fact, reduce the overall speed on the
highway? motorists who went 160 kilometres per hour last year would this year travel at a
reduced speed of 144 kilometres an hour, while those who drove at 100 kilometres an hour
would now have a speed of 90 kilometres an hour. Such a law would be objectionable, not
because it was unconstitutional, or because it would be practically unenforceable and ineffective
(although it would be both impossible to enforce and of dubious effect), but because of the
imposition of different standards on parties who are creating the same kind of hazard. 20
Differentiated responsibilities, reflected in the use of reduction targets rather than
emission targets, and by the exemption of developing countries, imply that not all countries share
environmental responsibilities, and those tha t do, do not share them equally. Opponents of Kyoto
raise the “exemption” provided to countries of the South as one reason why the Protocol should
not be ratified. 21 This objection is possible only because of the form of the targets. If targets were
expressed as limits instead of reductions and no exemptions existed, no such objection could be
20
Differentiated standards might be appropriate where different parties are creating hazards of different kinds
or degrees. For example, in the highway context, a lower speed limit for heavy trucks would be justifiable
on the basis that they present a greater danger. No such justification exists where the nature of the hazard
created by the parties is the same.
21
For example, in 1997, the United States Congress passed the Byrd-Hagel resolution, which stated: “The
United States should not be a signatory to any protocol…which would mandate new commitments to limit
or reduce GHGs…unless [it] also mandates new specific scheduled commitments to limit or reduce GHGs
for developing country parties within the same compliance period…” (S. Res 98. 105th Cong. (1997), cited
by D. DiLuigi, “Kyoto’s So-Called ‘Fatal Flaws’: A Potential Springboard for Domestic Greenhouse Gas
Regulation” (2002) 32 Golden Gate Univ. L.R. 693 at 709). In 2001, U.S. President George W. Bush
opposed ratification of the Protocol on this basis: “I oppose the Kyoto Protocol because it exempts 80
percent of the world, including major population centers such as China and India, from compliance”. White
House
Press
Release,
13
March
2001,
posted
at
<http://www.whitehouse.gov/news/
releases/2001/03/20010314.html>, cited by D. Grimeaud, “To design and implement climate change
measures and the need to strike a balance between environmental protection and international trade law” in
M. Faure, J. Gupta, and A. Nentjes, eds., Climate Change and the Kyoto Protocol: The Role of Institutions
and Instruments to Control Global Change (Cheltenham: Edward Elgar, 2003) 68 at 70 and note 7.
8
raised. Consider again the hypothetical example of the rule regarding speed on the highway.
Assume that the rule required a 10% reduction from last year’s speed for all highway users,
except that mopeds are exempt from the rule. It would appear that mopeds have been saved from
the burden of reducing their speed at the expense of other highway users. Automobile drivers
might object that the rule is unfair because it targets them but does not apply to mopeds.
However, if one instead creates a rule that expresses the same speed for all, such as 90
kilometres per hour, the effect is that automobiles must reduce their speed but mopeds need not
do so, since they are unable to travel as fast as the limit. The difference between the two
approaches is that under the second rule, it is clear that mopeds are not exempt. Their speed is
simply below the limit already.
Similarly, if a carbon dioxide emission limit per capita were set and universally applied,
those nations that produce less than the per capita limit, such as many developing countries,
would not need to reduce their emissions. They would not need an exemption. Rather than being
favoured by the regime, they would simply be in compliance with the rule because their
emissions are far below those of other countries. On the other hand, those developing countries
whose emissions exceed the limit should be expected to comply like all others. Under this
approach, there could be no argument that the regime is unfair to industrialized nations.
(c) Polluting pays: the greater the emissions, the more lenient the standards
If responsibilities are to be differentiated, who should take on the most and the least
demanding burdens? Among countries that are assigned reduction targets under the Protocol,
those contributing least to the accumulation of greenhouse gases in the atmosphere and having
the weakest economic and technological capacity to reduce their emissions have the least
demanding reduction targets. The most developed nations have the most demanding reduction
targets. The targets for most European countries is eight percent below 1990 levels, for the
United States seven percent below, and for Canada and Japan six percent below. However, when
per cent reductions are translated into emission limits, it becomes apparent that countries that
contribute the most emissions assume the least demanding targets in absolute terms. 22 The
22
After all, that is the meaning of targets expressed as a percentage of a nation’s previous output. To see that
this is the case, assume a country that in 1990 had twice the greenhouse gas emissions per capita of the next
9
greater the pollution in the past, the more lenient the standard that is to be applied.
Such a principle encourages pollution, not discourages it. If Kyoto is to be the first of the
greenhouse gas agreements, if future agreements are to include developing nations, and if Kyoto
is to be the model for those future agreements, then the lesson to be learned by developing
countries is that they should pollute as much as they can while they still can, before they
themselves are asked to reduce. The Kyoto approach is inconsistent with the “polluter pays”
principle, under which the primary responsibility for restoration, compensation, and prevention
of pollution should fall upon those who are the greatest producers. 23 This principle has found its
way into domestic approaches to a variety of environmental problems, such as contaminated site
liability, remediation for spills, and restoration of environmental damage caused by regulatory
violations. 24 The polluter pays principle does not require differentiated standards, and does not
alter the general principle that restrictions on behaviour should apply to all. However, it does say
that costs of pollution prevention should be internalized, and that a right to pollute is not
established by a history of polluting activity. Kyoto, on the other hand, expresses both of these
forme r ideas. Because GHG emissions affect the global atmosphere, they create environmental
externalities - they impose environmental costs upon other nations. Kyoto confirms the ability of
polluting countries to do so, in proportion to how much they have done so in the past. 25 Kyoto
highest producer. Imposing a reduction of five percent of those levels by 2012 means that in complying
with Kyoto, that country will still have twice the level of emissions of the nearest competitor.
23
Principle 16 of the Rio Declaration, supra note 13, states “National authorities should endeavour to
promote the internalization of environmental costs and the use of economic instruments, taking into
account the approach that the polluter should, in principle, bear the costs of pollution, with due regard to
the public interest and without distorting trade and investment.”
24
The principle is considered to provide an economically efficient solution because it requires polluters to
internalize costs of pollution. When the principle is in effect, the cost of goods and services reflect the
expense of pollution control: C. Stevens, “Interpreting the Polluter Pays Principle in the Trade and
Environment Content” (1994), 27 Cornell Int. L.J. 577.
25
“It would be naïve to assume that … countries will simply agree to reduce everyone’s assigned amount
proportionally for future commitment periods, and at the same time add targets for developing countries.
Some countries, such as Sweden, have already reduced their per capita emissions to about a third of those
in Canada and the U.S. Can they really be expected to accept further reductions until emissions in the U.S.
and Canada have come down to somewhere close to their per capita emissions, accounting for national
circumstances?” Doelle, supra note 2 at 163 (emphasis in original).
10
validates differentiated rates of GHG emissions, and by doing so, rewards nations whose
emissions are historically high.
(d) Unresolved conflicts: develop now, protect the environment later
One of the flaws in the concept of susta inable development is that it attempts to promote
both environmental protection and economic development without identifying which is more
important. When these priorities conflict, it is not clear which should prevail. 26 This problem is
particularly acute in the developing world, resulting in a ‘sustainable development catch-22’: one
of the mandates of sustainable development is to develop the countries of the South. From the
perspective of individual citizens of developing countries, there is a direct link between
development and a healthy environment. Citizens of the industrialized world, on average, enjoy
superior environmental conditions to those in the South where the most acute shortages of clean
water, food and air are felt. This evidence suggests that promoting economic development in the
South is an important step towards making environmental progress. 27 However, when seen from
a global perspective, the relationship between development and environmental quality is not
complementary, but in conflict. Wolfgang Sachs writes:28
‘No development without sustainability; no sustainability without development’ is the
formula that establishes the newly formed bond [between environment and development]. …This
is nothing less than the repeat of a proven ruse: every time in the past 30 years when the
destructive effects of development were recognized, the concept was stretched in such a way as to
26
Principle 3 of the Rio Declaration, supra note 13, states: “The right to development must be fulfilled so as
to equitably meet developmental and environmental needs of present and future generations.” Principle 25
states: “Peace, development and environmental protection are interdependent and indivisible.” See B.
Pardy, "Sustainable Development: In Search of a Legal Rule" (2001), 28 Journal of Business
Administration and Policy Analysis 391; P. Birnie and A. Boyle, International Law & the Environment,
2nd ed. (Oxford: Oxford University Press, 2002) 44-47.
27
Principle 5 of the Rio Declaration, supra note 13: “All States and all people shall cooperate in the essential
task of eradicating poverty as an indispensable requirement for sustainable development, in order to
decrease the disparities in standards of living and better meet the needs of the majority of people in the
world.”
28
W. Sachs, Plant Dialectics: Explorations in Environment and Development (London: Zed Books, 1999) 60.
11
include both injury and therapy…the Brundtland Report incorporated concern for the environment
into the concept of development by erecting ‘sustainable development’ as the conceptual roof for
both violating and healing the environment.
Economic growth makes global environmental problems worse, not better. If the
industrialized countries produce more GHG emissions per capita than the developing world,
transforming the latter into the former is not a way to curb climate change. Nevertheless, Kyoto
promotes the sustainable development myth. Its differentiated responsibilities and exemptions
endorse the proposition that development in the third world should be promoted before
environmental considerations are addressed. Rather than identifying global climate change as the
priority, Kyoto encourages expanding greenhouse gas emissions from third world countries
while they develop. 29 If successful, their economies will come to depend upon levels of carbon
emissions comparable to those currently found in industrialized nations.30
The point is not that developing countries should decline to improve their economies and
local conditions, but that the present approach to international environmental governance does
not explain how they should do so without increasing total human impact on the global
environment. The conflict between development and ecosystem protection requires
reconciliation. Kyoto does not provide it, and instead is an instrument for making the problem
worse.
(e) Aiming low: the management of climate change 31
Environmental management has become the dominant feature of modern environmental
29
The preamble to the Framework Convention, supra note 8, states this explicitly: “[The Parties to this
Convention note] that…the share of global emissions originating in developing countries will grow to meet
their social and development needs”.
30
“Even under business-as-usual scenarios, emissions from developing nations are expected to exceed those
from industrial nations by 2015.” Murkowski, supra note 4 at 353, citing A. Manne and R. Richels, “The
Kyoto Protocol: A Cost-Effective Strategy for Meeting Environmental Objectives?” in The Energy Journal:
The Costs of the Kyoto Protocol? A Multimodel Evaluation I, 20 (J. Weyant ed., 1999).
31
Parts of this section are adapted from B. Pardy, “Changing Nature: The Myth of Inevitability of Ecosystem
Management” (2003) 20 Pace Envtl. L. Rev. 675.
12
law and policy. 32 In the domestic context, the role of management is sometimes explicitly set out
in legislation, 33 but more frequently, it is adopted as a modus operandi at the level of policy
development 34 or administrative practice. Management has assumed legitimacy over the past
decade in numerous jurisdictions 35 as a desirable policy in the environmental arena, and is now
32
S. Wood, “Environmental management systems and public authority in Canada: Rethinking Environmental
Governance” (2003) 10 Buffalo Envtl. L.J. 129; J.B. Ruhl, “Ecosystem Management, the ESA, and the
Seven Degrees of Relevance” (2000) 14 Natural Resources & Environment 156 at 157; J.B. Ruhl,
“Working (Both) Positivist Ends Toward a New (Pragmatist) Middle in Environmental Law” (2000) 68
George Washington L.R. 522; R.W. Thomson, “Ecosystem Management: Great Idea, But What Is It, Will
It Work and Who Will Pay?” (1995) 9 Natural Resources & Environment 42; R.B. Keiter, “Beyond the
Boundary Line: Constructing a Law of Ecosystem Management” (1994) 65 University of Colorado L.R.
293; S. Owen, “Participation and Sustainability: The Imperatives of Resource and Environmental
Management” in S. Kennett, ed., Law and Process in Environmental Management: Essays from the Sixth
CIRL Conference on Natural Resources Law (Calgary: Canadian Institute of Natural Resources, 1993); N.
Gunningham and D. Sinclair, “New Generation Environmental Policy: Environmental Management
Systems and Regulatory Reform” (1998) 22 Melbourne University Law Review 592.
33
For example, the purpose of the Manitoba Environment Act (S.M. 1987-88, c. 26, s. 1(1)) is “to develop
and maintain an environmental management system…which will ensure that the environment is maintained
in such a manner as to sustain a high quality of life, including social and economic development, recreation
and leisure for this and future generations”. See also e.g. Environment Management Act, R.S.B.C. 1996, c.
118, s. 2; Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 2; Canadian Environmental Protection
Act 1999, S.C. 1999, c. 33, s. 209(1).
34
For example, in its “Statement of Environmental Values” prepared under the Environmental Bill of Rights,
S.O. 1993, c. 28, the Ontario Ministry of Natural Resources identifies its overall goal as “[t]o contribute to
the environmental, social and economic well-being of Ontario through the sustainable development of
natural resources. Sustainable development relies on integrated management approaches which consider the
full range of environmental, social and economic factors when decisions are made about the use of natural
resources.” <http://www.ene.gov.on.ca/envision/env_ reg/er/sevs/sb4e0001.htm>. A recent report prepared
for the Ontario government on environmental governance (Executive Resource Group, Managing the
Environment: A Review of Best Practices, Executive Summary (January 2001) at 2) concluded that
“[l]eading jurisdictions are actively engaged in trying to move to the next level of dealing with the
environment, sometimes referred to as a new vision of environmental management. This new vision builds
on the strengths of traditional regulation, but also integrates it with a broader, more comprehensive
approach.” <http://www.ene.gov.on.ca/envision/ergreport/index.htm>.
35
Stratos Inc., “Review of Governance Models in Environmental Management: Research Paper #3” prepared
for the Executive Resource Group (December 21, 2000), reviewing aspects of environmental management
13
so thoroughly accepted as an essential environmental strategy that it is sometimes equated with
environmental protection without thought for whether the two concepts are distinct. 36 Indeed,
management is sometimes considered, erroneously, to be the only environmental strategy
possible. 37
Managing the environment means shaping it to its highest and best use in human terms. 38
According to the environmental management ethic, ecosystems should be measured, controlled,
used, and changed to achieve the most advantageous result for social, economic, and ecological
purposes. Sometimes this may include the preservation of a particular ecosystem, such as a
wildlife refuge or a national park, but usually it does not. Sometimes environmental management
means “improving” an existing environment, such as restoring an ecosystem to a former state,
but usually it does not. More often, it means supervising the decline of environmental
conditions. 39 Environmental management is a form of governance that slows the deterioration of
systems in the Netherlands, Sweden, Denmark, Norway, New Zealand, Australia, the United States and
Canada <http://www.ene.gov.on.ca/envision/ergreport/index.htm>.
36
The study conducted for the Ontario Government on environmental governance (Executive Resource
Group, Managing the Environment: A Review of Best Practices, supra note 34) had a broad mandate. The
central line of inquiry was: “What are the defining characteristics of and/or elements that are present in a
model ministry or department of the environment?” No particular approach to environmental governance
was specified in its terms of reference. Yet without significant legal or scientific deliberation, the nature of
the review conducted by the project team was limited to strategies for achieving environmental
management. The report asserted that its search for best practices was to be “thoroughly anchored in a
larger strategic context of developments in environmental management.” (Ibid. at 2.) The report did not
explain why environmental management was thought to be the only feasible strategy for environmental
governance, other than its widespread approval in other jurisdictions.
37
Pardy, supra note 31.
38
Ibid. at 675-77.
39
There are many examples of accelerating environmental damage in the presence of management regimes.
Among the most dramatic is the decline of fish stocks, both domestically and internationally. The loss of
cod stocks off the east coast of Canada occurred slowly but inevitably over a period of decades, despite
governance by an army of federal fisheries bureaucrats and the setting of annual catch limits that were
purportedly for the purpose of preserving the resource. Similar patterns have recently been reported on a
global scale: the world’s oceans have lost 90% of large predatory fishes (R Myers and B. Worm, “Rapid
worldwide depletion of predatory fish communities” Nature 423 (15 May 2003) 280). In a review of a book
on the same topic (D. Pauly and J. Maclean, In a Perfect Ocean (Island Press, 2003)) John Shepherd offers
14
environmental quality as much as political and economic forces can afford in the short term.
The objective of management is not to protect a “natural” environment, but to maintain
an environment that humans can tolerate. This approach is reflected in the terms of the
Framework Convention and Kyoto. The purpose of the Framework Convention is the
management of climate change. The objective is not to protect the climate from human
interference, but to salvage a climate that will have something less than catastrophic effects upon
human society. Article 2 of the Convention states:
The ultimate objective of this Convention and any related legal instruments that the Conference of
the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention,
stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system. Such a level should be achieved
within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure
that food production is not threatened and to enable economic development to proceed in a
sustainable manner.
40
The purpose of the Framework Convention is to prevent only that human interference
with the climate that is dangerous. The Convention contemplates, indeed, expects the altering of
ecosystems; adaptation of ecosystems is not problematic as long as it does not interfere with
economic development or food production. Thus, under the Convention, deterioration of other
ecosystem attributes is acceptable. If Kyoto is entirely successful according to its own terms, and
if Kyoto is followed by other international agreements on gre enhouse gases under the umbrella
of the Framework Convention, and if those agreements achieve the objective of the Framework
a simple explanation for why scientific advice on fisheries has gone unheeded: “all effective conservation
measures require that fewer fish be killed, and that means (in the short term) that fishermen's incomes will
be reduced. This creates a fundamental conflict between short-term losses and long-term gains that has not
yet been resolved anywhere in the world. Unless and until we can find a way to reconcile these, we must
expect fishermen and their representatives to oppose with vigour anything that might actually work.” (“Net
Losses: Overfishing in the north Atlantic Ocean has left fish stocks in peril” Nature 425 (11 September
2003)
125
at
126
<http://www.nature.com/cgitaf/DynaPage.taf?file=/nature/journal/v425/n6954
/full/425125a_fs.html>.) The same can be said for greenhouse gases. Kyoto does not reconcile the conflict
between the short -term burden and long-term benefit of GHG reduction.
40
Supra note 8 (emphasis added).
15
Convention, significant human change to the climate will still occur. 41
(f) Politically appealing but substantively inadequate: the myth of the value of the “First
Step”
There is support for Kyoto from Canadian policy makers and academics in the
environmental field. One view that justifies that support goes something like this: “Kyoto is
flawed but should be supported. It does not go nearly far enough - its targets are too low to make
any real difference to greenhouse gas accumulation - but the climate change crisis is potentially
so serious that it is essential to have some international agreement in place, if only to signal the
validity of the problem. International environmental agreements are made between governments,
and governments are political entities. Therefore, by its nature, Kyoto is a political document.
The benefit of Kyoto is that it may lead to future agreements that will actually achieve necessary
change. The Kyoto process is a political investment made in the interest of future progress on
this issue. And the Protocol is a symbol to the world that climate change is real, serious, and
worthy of international attention. It is not a complete solution on its own but we are better off
with it than without it. In other words, Kyoto is an important first step.”
Kyoto is the most recent in a long series of first steps in international environmental law.
The first ‘first step’ was taken with the signing in 1972 of the Stockholm Declaration, 42 which
set out 26 principles of environmental protection. Principle 6 states in part,
41
“Nature in the twenty-first century will be a nature that we make.” D. Botkin, Discordant Harmonies: A
New Ecology for the Twenty-First Century (Oxford: Oxford University Press, 1990) at 193. In The End of
Nature, Bill McKibbon observes, “The greenhouse effect is a more apt name than those who coined it
imagined. The carbon dioxide and trace gases act like the panes of glass on a greenhouse? the analogy is
accurate. But it is more than that. We have built a greenhouse, a human creation, where once there
bloomed a sweet and wild garden.” ((New York: Anchor Books, 1989) at 91 (emphasis in original). Also
see T. Homer-Dixon, The Ingenuity Gap (New York: Alfred A. Knopf, 2000) at 70 and 128, citing E.O.
Wilson, “Is Humanity Suicidal?” Biosystems 31 (1993) 242, and G. Benford, “Climate Controls” Reason
29, No. 6 (1997) 24-30.
42
The Stockholm Declaration of the United Nations Conference on the Human Environment, 11 I.L.M. 1416
(1972).
16
…the discharge of toxic substances or of other substances…in such quantities or concentrations as
to exceed the capacity of the environment to render them harmless must be halted in order to
ensure that serious or irreversible damage is not inflicted upon ecosystems.
Principle 21 is even more explicit about states’ rights and responsibilities:
States have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment or other States or beyond the limits of national
43
jurisdiction.
Most of the international environmental treaties that have followed have failed to advance
the status of the principles that Stockholm articulated. In the wake of their relative failure, many
of these treaties have themselves been referred to as “first steps”, for that is the appropriate term
when an international plan proves to be inadequate to achieve its purpose. For example, the
World Summit on Sustainable Development, held in 2002 in Johannesburg, was the result of ten
years’ work following the Rio Declaration, 44 came thirty years after Stockholm, and failed to
bind governments to any kind of action whatsoever. 45 Following the summit, U.N. SecretaryGeneral Kofi Annan even characterized the Johannesburg Declaration on Sustainable
Development as “the beginning”. 46 One could conclude that the history of international
environmental law is a history of beginnings, which is to say that most international
43
Ibid. (emphasis added).
44
Supra note 13.
45
There is wide agreement that the Johannesburg Summit was largely a failure. For example, see D. Esty,
“Johannesburg a failure, but lessons abound: Environmental summit disappoints with its lack of leadership
and focus” The Yale Herald (20 September 2002) <http://www.yaleherald.com/article-p.php?Article=992>.
46
“Sustainable Development Summit Concludes in Johannesburg: U.N. Secretary-General Kofi Annan Says
It’s
Just
the
Beginning”,
Press
Release,
<http://www.un.org/events/wssd/pressreleases/finalrelease.pdf>.
(4
September
4
2002)
17
environmental problems have so far proven to be too difficult to confront head on. 47
No more first steps are required. Indeed, they do more harm than good by appearing to
provide solutions and remedies where none exist. In the face of a crisis, the appearance of action
is more likely to diffuse political pressure than to intensify it. Governments understandably
prefer symbolic measures that relieve them from resolving fundamental dilemmas that require
controversial solutions. Why people committed to real environmental progress might support a
potentially endless series of first steps is less clear. No purpose is served by creating the
impression that progress is being made on climate change when nothing could be further from
the truth.
3. WHAT THE FRAMEWORK CONVENTION AND KYOTO SHOULD HAVE SAID
The Framework Convention and Kyoto could have been drafted without the flaws
described above. The most important articles in the Framework Convention are Article 2 and 3,
which set out the Convention’s objectives and principles. For the sake of argument, I have
indicated where the present wording could have been changed or removed to produce a simple
regime based upon sound principles.
UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE
ARTICLE 2? OBJECTIVE
The ultimate objective of this Convention and any related legal instruments that the Conference of the
Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, reduction
[stabilization] of greenhouse gas c oncentrations in the atmosphere to a level that would prevent [dangerous]
anthropogenic interference with the climate system. [Such a level should be achieved within a time-frame
sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not
threatened and to enable economic development to proceed in a sustainable manner.]
47
One of the notable exceptions is the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer,
26 I.L.M. 1550 (1987), made under the framework of the 1985 Vienna Convention for the Protection of the
Ozone Layer, UNEP Doc. IG.53/5; 26 I.L.M. 1529 (1987). See Birnie and Boyle, supra note 26 at 519-23.
18
ARTICLE 3 ? PRINCIPLES
In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall
be guided, INTER ALIA, by the following:
1.... The Parties have a common responsibility to [should] protect the climate system for the benefit of
present and future generations of humankind. [on the basis of equity and in accordance with their common
but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties
should take the lead in comb ating climate change and the adverse effects thereof.]
[2.... The specific needs and special circumstances of developing country Parties, especially those that are
particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing
country Parties, that would have to bear a disproportionate or abnormal burden under the Convention,
should be given full consideration.]
3.... The Parties should take precautionary measures to anticipate, prevent or minimize the causes of
climate change and mitigate its adverse effects. Where there are threats of [serious or irreversible ] damage,
lack of full scientific certainty should not be used as a reason for postponing such measures, taking into
account that policies and measures to deal with climate change should be cost-effective so as to ensure
global benefits at the lowest possible cost. To achieve this, such policies and measures should take into
account different socio -economic contexts, be comprehensive, cover all relevant sources, sinks and
reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address
climate change may be carried out cooperatively by interested Parties.
Kyoto is based upon the Framework Convention. Changing the principles of the
Convention changes Kyoto’s characteristics. At the heart of Kyoto is its prescription of reduction
targets for the various parties in Annex B. If Kyoto was based upon common, not differentiated
responsibilities, and upon emission limits rather than emission reductions, a common rule or
formula could be applied to determine the target for each party. The calculation of the limit for
each country would require three steps: (1) Calculation of the permissible global amount of GHG
emissions;48 (2) Division of that global amount into common units, such as per person emissions
or per hectare emissions;49 (3) Multiplication of the per person (or per hectare) emission limit by
48
By answering the questions posed in 2(a) above.
49
Both choices have significant political and economic consequences. Obviously, countries with large
populations and small territories would favour per capita emission limits, and countries with large
19
the population (or geographical size) of each country to arrive at its particular national emission
limit. One example of this form of Annex B appears below:
KYOTO PROTOCOL
ANNEX B
Emission limitations
The emission limitation for each party to this protocol shall be calculated as follows:
TE = Total allowable annual emissions
= Emissions global atmosphere can tolerate per annum without change to overall GHG
concentrations
PCE = Global per capita allowable annual emissions
=
TE
Global population
NE = National allowable annual emissions for each country
= (PCE) X (country’s population)
Each party to this protocol shall be limited to greenhouse gas emissions equal to that country’s
NE.
This approach is extremely demanding, and would require reductions of a different level of
magnitud e than those contemplated in Kyoto. If necessary, these limits could be phased in over a
period of years so as to minimize the economic and social disruption that immediate
implementation would create. 50 But in the end there is no way around the climate change
territories and small populations, such as Canada, would favour emission limits based upon geographical
size. Both choices are defensible, and a combination of them might be possible. The point for present
purposes is that whatever basis for calculation is used, that it be applied to all countries in the same way.
50
Note the distinction between phasing in emission limits designed to protect the climate from human
interference, and stabilizing GHG concentrations “within a time -frame sufficient to allow ecosystems to
adapt naturally to climate change”, as Article 2 of the Framework Convention states. Note also the
20
equation: either extraordinary emission reductions will be made, or atmospheric concentrations
will increase significantly.
4. CONCLUSION
International environmental agreements like Kyoto are products of politics. Political
considerations are understandably important in their negotiation; however, if political factors
take on such priority as to make scientific and ecological considerations largely irrelevant, and
thereby defeat an agreement’s purpose in its first stages of creation, then there seems little point
in entering into the exercise. The dominance of political considerations is especially problematic
in the case of climate change because the existence of the problem can be attributed to the gulf
between what is politically palatable and what is ecologically necessary. When social and
economic systems are profoundly dependent on petroleum, the notion of reducing greenhouse
gas emissions runs directly against broad, deep, and powerful forces, and ultimately involves
challenging the cultural status quo. In this sense, climate change is a more difficult problem than
other international issues such as genocide, land mines, or nuclear weapons because it is
relatively easy to reach consensus that these things are generally undesirable. Not so with the
expanding use of fossil fuels and other greenhouse gases. Thus, it may be that as long as the
process of setting greenhouse gas limits begins with what is politically feasible, the result will
bear little relation to atmospheric capacity and climatic effect.
The Framework Convention and Kyoto are the result of complex and extensive political
negotiations. Indeed, Kyoto may be the most demanding agreement that could have been
achieved. Its signing was a significant political accomplishment, and even with its modest
reduction targets, it may prove to have insufficient political support to enter into force. The
drafting changes set out in the section above are legally and ecologically necessary, but they are
not politically viable. Achieving a GHG regime based upon sound principles with emission
limits based upon atmospheric capacities may be politically impossible. If that is so, two
opposing conclusions can be reached. The first, based on wishful thinking, is that Kyoto should
contradiction in Article 2 where it suggests that ecosystems will “adapt naturally” to “anthropogenic
interference”.
21
be supported even with its defects. The second, based on a realistic assessment of past failures
and future prospects, is that the current approach to international environmental law is not able to
remedy climate change. For the past 30 years, governments, institutions and individuals have
committed themselves to the strategy of addressing global environmental problems through
multilateral international agreement and action. Kyoto is the product of these efforts, and
therefore it is time to consider whether the commitment is misplaced.