I’ve recently posted on ssrn a draft book chapter examining REDD+ in Brazil as it relates to the nation’s indigenous peoples.  Brazil is particularly important for REDD+ because of its large share of global forests (approximately 1/3), relatively well-developed institutional infrastructure, and leadership role in international climate negotiations.  There is a much greater chance of successful REDD+ development in Brazil if indigenous peoples engage the program because they hold a consitutional right to manage 20% of the Brazilian Amazon and have a long history of successful forest management.  REDD+ may offer indigenous people of Brazil benefits, but it also poses serious risks.  Thus, in the chapter, I offer some suggestions for ensuring that indigenous peoples will reap net benefits from REDD+ engagement.  These include securing a legal framework to define benefit distribution and free prior informed consent.

The final chapter will appear in Climate Change, Indigenous Peoples and the Search for Legal Remedies (Randall S. Abate & Elizabeth Ann Kronk, editors, Edward Elgar Publishing, forthcoming 2012).

A recent New York Times article justifiably questions the future of cap and trade in light of a recent ruling putting implementation of California’s climate change law on hold.  The basic argument against cap and trade in the case is one of environmental justice:  if regulators focus too intently on GHG emissions, they may allow harmful concentrations of other pollutants to build up around areas in which a high concentration of allowances are held.  I saw Brent Newell, attorney for the plaintiff Center on Race, Poverty & the Environment, make this argument at a recent conference.  While the possibility appears very real, the appropriate solution, in my view, would be to demand strict enforcement of non-GHG air pollution control laws.  But the larger point that emerges, as the Times article notes well, is that cap and trade may be falling apart as a politically viable approach in the U.S. generally.  New Jersey has recently pulled out of RGGI  (reported here), California’s law is being attacked from the left, and the right appears to almost uniformly disdain the tool that was once a relatively conservative, market-friendly approach to regulation added to the Clean Air Act under President George H.W. Bush (i.e., the cap and trade approach of the Acid Rain program).  It’s hard to imagine a pure GHG tax taking hold in most of the U.S., so what is the most politically viable alternative?  Command-and-control regulation? 

Despite the dismal short-term prospects of any federal legislation to address climate change, sooner or later the U.S., or perhaps coalitions of the states and cities within it, will have to act.  Not long ago, it seemed clear that cap and trade would be the vehicle for doing so.  Now, perhaps not.  And if the U.S. cannot embrace cap and trade — after so strongly backing it in the 1990s — what will future international deals on climate change look like?

NYT reports that the Brazilian Congress is considering legislation to exempt small farms from current requirements to maintain forest on property within the Amazon, which would allow significantly more deforestation than current law. Along with the traditional concerns about deforestation, the effort to relax deforestation restrictions comes at a time when large sections of the Amazon appear to be approaching a tipping point. Recent droughts and predicted climate changes suggest that at least parts of the Amazon are on the edge of flipping to another ecosystem type from forest dieback. Such an event would likely have major biodiversity and climate implications — reducing or eliminating large swaths of habitat and releasing vast quantities of carbon dioxide. (A 2005 Amazon dieback caused by drought, for example, is a suspected cause of a notable spike in global GHG concentrations that year). With the ecosystem already teetering, now is not the time to relax forest protection law.

I have just participated in the wonderful 2nd Annual Conference of the Association for Law, Property and Society.  An excellent array of papers from the conference is available here, including several of direct relevance to climate change law and policy.  The 3rd Annual Meeting will be held March 2-3, 2012 — highly recommended for attorneys, law professors, and social scientists with an interest in property law and its relationship to society!

The Earth Negotiations Bulletin notes that for some, the CBD COP-10 in Nagoya “marked the re-birth of environmental multilateralism” and suggests it “exorcise the ghost of Copenhagen.” Unfortunately, Nagoya’s successes, while significant, do not resonate that profoundly.

The 10th Conference of the Parties to the Convention on Biological Diversity in Nagoya produced a “package” of results, most notably the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, may help to put to rest some of the most extreme predictions about the end of multilateralism in international environmental law. But it is far from a panacea. Even within the confines of biodiversity law, the COP-10 outcomes do not provide a strong likelihood of significantly reducing the extensive loss of biological diversity (which was documented in Global Biodiversity Outlook 3 shortly before the Nagoya meetings). The Strategic Plan for 2011-2020 identifies the key changes and activities needed to address biodiversity loss, but does not make any major breakthroughs.

Nagoya does not signal a new era or multilateralism, it does not make more likely binding international targets for biodiversity preservation or greenhouse gas emissions limitations. Instead, it reflects several key realities about international environmental law that should be borne in mind as the UNFCCC COP-16 unfolds. First, the Nagoya Protocol in access and benefit sharing is deeply ambiguous. This ambiguity was necessary to reach agreement. Second, the Protocol came into being only because of closed-door session among a few major players, reminiscent of the meetings that led to the Copenhagen Accord. Third, the Strategic Plan emphasizes the Convention’s role as a facilitator of national and subnational action to address biodiversity. Finally, the Strategic Plan and Strategy for Resource Mobilization deeply embrace the need to find creative and effective financing mechanisms for biodiversity preservation.

Taken together, these characteristics of the Nagoya meetings portray the current state of international environmental law fairly well. Top-down binding international environmental law is not the future of the field. In many ways, the Kyoto Protocol may be the high water mark of that approach. Instead, international environmental treaties will continue to contain the extensively qualified and ambiguous language that any student of the field is familiar with. Further, even within a multilateral UN framework, the key players in any context will likely hammer-out the main features of any agreement that can be reached – and they may do so in private. These things are not new.

Growth and development in international environmental law will come through its deeper integration into national and subnational law, and through its ability to facilitate the creation and implementation of ever more effective approaches to solving globally significant environmental problems. Authority is, and will remain, polycentric. Nations need not surrender sovereignty, but may participate in cooperative efforts that are made possible by multilateral institutional arrangements. In particular, issues such as financing, technology transfer, and monitoring are far more likely to be advanced in the context of multilateral commitments – however ambiguous they may be – than through bilateral or unilateral efforts.

In sum, Nagoya was successful for its achievements in updating several key aspects of the CBD regime, but its shouldn’t be seen as a sign that the UNFCCC COP-16 is likely to make any meaningful progress towards a Kyoto-style climate change agreement. Rather, COP-16 may be most important for the extent to which it advances the facilitative capacity of the UNFCCC regime to support a wide array of approaches to address climate change on the national and subnational levels.

For the final installment of this series of posts on the 12th Annual Northeast Florida Environmental Summit, I’d like to highlight the presentation by Dr. Stephen Leatherman (see also here), titled “Oil Spills & Hurricanes.”  While not strictly a legal presentation, Dr. Leatherman’s talk provides an engaging expert’s perspective on the potential for a combination of disasters to strike at once along the Gulf Coast.  One takes away a much better understanding of the magnitude of risk that we open ourselves up to by engaging in riskypractices in a region prone to “natural” disasters.  Imagine the BP Oil Spill and Hurricane Katrina at the same time.  Dr. Leatherman makes clear that this potential catastrophe as not as unlikely as some may like to believe.  Policymakers would do well to be attentive to this potential in advance, although the quickly fading national memory of the BP Spill suggests that such attention won’t be forthcoming.

Along with Dr. Leatherman’s talk, readers of the blog may also want to view Professor Alyson Flournoy’s presentation, titled “The BP Deepwater Horizon Disaster: A Case Study in Regulatory Failure.”  In her presentation, Alyson highlights problems of the regulatory structure governing oil drilling in the Gulf of Mexico, drawing on the Center for Progressive Reform report that she co-authored —  Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence.  The panel also features a presentation by Lindsay Conlon of the World Resources Institute, author of a forthcoming assessment of governance failures leading up to the BP Spill.

This panel, taken together with Dr. Leatherman’s presentation, highlight just how preventable catastrophe may be.  If the lessons of the BP Spill inform the regulation of future drilling, perhaps we will never have to experience the dual catastrophe the Dr. Leatherman outlines.

One very important aspect of climate change law and policy that receives too little attention is the role of insurance as a driver of behavior, including solutions to climate change risks and impacts.  Professor Sean Hecht provided a very cogent analysis of the topic at the 2010 Northeast Florida Environmental Summit in a presentation titled The Role of Insurance in Climate Change Risk Management and Adaptation.  In the presentation, Sean discusses the potential and obsticles for insurance companies and their products to improve climate resilience through creating new markets, promoting resilience-building behavior, and providing compensation following costly events.  Several of Sean’s articles on related topics are available for free download here. 

Professor Hecht spoke on a panel with Dr. Walter (Tony) Rosenbaum, whose presentation titled Has Flood Insurance Become Development Assurance?: The Federal Role in Mitigating Flood Hazard Risk is also available at this video link.  Tony’s presentation provides an excellent overview of the relatively little-known flood insurance program, including the huge potential liability connected with it and the policy implications of making affordable insurance available for building in flood-prone areas.

Last week, I hosted the 12th Annual Northeast Florida Environmental Summit at Florida Coastal School of Law.  Presenters offered various perspectives on the theme “Environmental Disasters:  Linking Law, Science, & Policy.”  Several of the presentations may be of interest to readers of this blog, and I’ll highlight them in a series of posts complete with links to the video recordings. 

Jim Chen has already beaten me to the punch with a post on Jurisdynamics featuring his excellent keynote address opening the Summit, “Disaster and Its Dimensions: Legal responses to distortions of time and space.”  Regardless, there is more to say . . .

Professor James  May delivered a very engaging presentation on constitutional issues in recent climate change litigation, such as Comer v. Murphy Oil USA.  The talk, titled  Courting Disaster: Constitutional Climate Litigation, takes on the question of the courts’ role in addressing climate-related disasters.  In a presentation that is both interesting to experts and accessible to non-lawyers, Jimmy challenges recent invocations of political question doctrine and prudential standing to avoid tort cases seeking redress for injuries related to climate change.  He argues that the Supreme Court should accept certiorari in these cases because, among other reasons, courts are our mechanism for resolving civil disputes and the disputes underlying these cases arise from perhaps the most important issue of our day.

Also included in the video is a presentaiton by Carl R. Nelson, an attorney with Fowler White Boggs P.A.  This presentation, titled Oil Pollution Act Litigation:  Recovery of Purely Economic Losses, provides an insightful discussion of liability issues connected with oil spills, based on Nelson’s experience heading the legal team that litigated the 1993 Tampa Bay oil spill.