Designing Climate Change Law: A Comparative Analysis Of The US And The EU

Author:Glen Wright
Position:Final year LLB student in the University of Nottingham
Pages:78-104
[2010] COLR
DESIGNING CLIMATE CHANGE LAW: A COMPARATIVE ANALYSIS OF THE
US AND THE EU
Glen Wright *
ABSTRACT
As evidence of anthropogenic climate change mounts there is a growing concern with, and a
pressing need for, legal regimes to curtail the problem. This concern culminated in the
recent climate change conference in Copenhagen. The US and the EU, as two of the la rgest
contributors to the problem and as entities wielding significant political power, have a
pivotal role to play in the creation a nd development of these regimes. With this in mind, this
paper provides a brief survey of the measures taken in the respective jurisdictions to date to
combat climate change. Starting with the Kyoto Protocol, the divergent approaches of the
two jurisdictions will be noted and the effectiveness of the two regimes discussed, both in
terms of emissions reduction and intangible benefits that have arisen. Some ‘best practice’
principles for the design of climate change law will be discerned, suggesting ways in which
future climate change law can be more effective.
A INTRODUCTION
The Intergovernmental Panel on Climate Change (IPCC)1 has stated that „warming of the
climate system is unequivocal.‟2 According to the IPCC
Global Greenhouse Gas (GHG) emissions due to human activities have grown
since pre-industrial times, with an increase of 70% between 1970 and 2004…
Most of the observed increase in global average temperatures since the mid-20th
century is very likely due to the observed increase in anthropogenic GHG
concentrations.3
Both the US4 and the EU5 agree with this statement, repeating it almost verbatim. In addition,
most scientists,6 including the national academies of science of many major industrialized
nations,7 are also convinced of the validity of the science of climate change. Thus, most of
*Final year LLB student in the University of Nottingham.
1 The IPCC is a scientific intergovernmental body set up by the World Meteorological Organization (WMO)
and by the United Nat ions Environment Programme (UNEP).‟ It is mandated to „provide the dec ision-makers
and others interested in climate change with an objective source of information about clim ate change.‟
(27 February 2010).
2 IPCC Climate Change 2007: Synthesis Report, Summary for Policymakers.
(27 Feb ruary 2010).
3 ibid.
4 „Most of the warming in recent decad es is very likely the result of human activities.‟ US Environmental
Protection Agency: Climate Change Basic Information
(27 February 2010).
5 „The warming of the climate system is unequivocal... Most of the warming that has occurred over the last 50
years is very likely to have been caused by human activities.‟ ––„Climate Change‟ EUROPA
(27 February 2010).
6 Doran and Zi mmerman Examining the Scientific Consensus on Cli mate Change‟ (2009) 90(3) Eos,
Transactions American Geophysical Union.
7 Joint Science Academies, Climate Change Adaptation and the Transition to a Low Carbon Society Ro yal
Society, 06/2008.
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[2010] COLR
the world is now at an agreement and, as a starting point, the two entities which are the
subject of this paper are in agreement as to the science of global warming.
According to the UN, the US currently contributes 22.2% of global Carbon Dioxide
emissions8 and the EU contributes 14.7%.9 While these figures were collected in 2004 and
are now somewhat inaccurate,10 they certainly indicate the large scale of the contribution of
the US and the EU.
The US, as a „superpower‟,11 and the EU, which bears, or may come to bear, the same
title,12 are entities of similar economic size,13 and hold a great deal of influence in the
international political sphere; influence which could be wielded in the battle against global
warming. Thus, it is difficult to understate the importance of these two entities both acting
and leading in the battle against climate change.
It has been noted that both the US and the EU are in agreement as regards science,
that both contribute significantly to CO2 emissions, and that both are entities of substantial
power. This paper, then, will provide a broad survey of the regimes for abating climate
change in both the US and the EU, federally and regionally, focusing on legally binding and
compulsory laws, schemes and policies. It will critically assess which of the operational
measures, if any, have been effective in reducing emissions and providing other benefits, and
assess, compare and evaluate the design of the measures, with a view to determining the
potential for, and likelihood of, their success. This analysis will suggest the best design
practice for future climate change laws and policies. Finally, this paper will provide a brief
insight into the future of climate change regulation.
B FEDERAL LEVEL MEASURES
1 The EU
A fundamental difference between the regulatory regimes of the US and the EU is the Kyoto
protocol.14 The US signed,15 but did not ratify,16 the protocol. As opposed to this is the EU,
8The Official UN Site for the MDG Indicators: Carbon dioxide emissions (CO2), thousand metric tons of CO2
(CDIAC) (27 February 2010).
9 ibid.
10 This is largely due to the vast increase in China‟s emissions over the ensuing years. Sources now suggest that
China has in fact superseded the US as the largest emitter of CO2. Netherlands Environment Agenc y Cli mate
Change Dossiers China now no. 1 in CO2 emissions; USA in second position
h
tml> (27 February 2010).
11 Though not the only power, as it operates in „a strange hybrid [international political system], a u ni-multipolar
system with one superpower and several major powers.‟ Huntington The Lonely Superpower‟ (1999) 78(2)
Foreign Affairs 35.
12 M Leonard Europe: the New Superpower The Irish Times (Dublin Ireland 18 Februar y 2005); P Khanna The
Second World; E mpires and I nfluence in the New Global Order (Rando m House 2008).
13 Posen Fleeting Equality: T he Relative Size of the US and EU Econo mies to 2020 [2004] US-Europe
Analysis Series (The Brookings Institution)
(27 February 2010).
14 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December
1997, entered into force 16 February 2005).
15 Then Vice-President Al Gore signed the Protocol, but indicated that ratification would not be sought. ––
Clinton Hails Global Warming Pact, But early Senate ratification is unlikely CNN
(27 February 2010).
16 The US Senate passed (by a unanimous 95–0 vote) a resolution stating that „the United States should not be a
signatory to any protocol‟ that did not mandate emissio ns caps for developing nations and that may harm the US
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