REDD+ in Brazil

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).

Emissions Pathways to 2C?

A new study in the journal Nature Climate Change examines the level of permissible greenhouse emissions to limit temperature increases to less than 2C relative to pre-industrial levels, Joeri Rogelj, et al., Emission Pathways Consistent with a 2C Global Temperature Level 1-6 (Oct. 2011). The study extends path-dependent assessments such as UNEP’s The Emissions Gap Report. Among the take-aways from the study:

  1. There is increasing evidence that we may need negative emissions “growth” to effectuate declines of temperature at a reasonable time scale; this is attributable to slow ocean mixing, which both delays warming associated with anthropogenic emissions and also limits amount of cooling for many decades to centuries. Technologies that might help effectuate negative emissions include carbon capture and sequestration (CCS) and bio-energy;
  2. Pathways with a “likely” (defined as greater than 66%) chance of staying below 2C requires median 2020 emissions of 44 Gt CO2e (compared to 48 GT CO2e currently), and 20 Gt by 2050;
  3. Atmospheric concentrations of CO2 in 2100 consistent with a 2C target are approximately 425ppm, or 465ppm CO2e;
  4. For more scenarios in the study’s data set, stabilization of emissions in 2030 is more consistently with a “likely” chance to stagy below 3C instead of 2C.

This is an excellent reading in a module on long-term responses to climate change. The conclusion that 70% of the scenarios that provide emissions pathways that hold temperatures below 2C require negative emissions could stimulate some good discussion about the importance of CCS technologies in future climate change policy portfolios, or geoengineering technologies, e.g. air capture or ocean iron fertilization. This piece also would provide excellent data for in-class cliamte simulations.


The Future of Cap & Trade?

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?

Brazil Debates Easing Curbs on Developing Amazon Forest

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.

Association for Law, Property and Society

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!

Climate Change and Current Evidence

EDITOR’S NOTE: We are being spammed by articles from a source called “E-zine,” including this piece. We’re trying to figure out how to stop it.

The people who are the most vocal about man-made global warming are the very same people who cannot elaborate on the scanty evidence produced so far. These Alarmists are not prepared to give their opinions on climate change events that have happened in the past. All they seem to be interested in is spreading mass hysteria.

It’s unanimously agreed by the scientific community that the earth is about 4.5 billion years old and during that time, it’s undergone at least 12, and possibly 14 major periods of climate change. In addition to this there has been numerous minor changes to the earth’s climate.

Past periods of climate change

Whilst most of this information has come from sophisticated scientific investigation involving many branches of science, some of the minor climatic changes have occurred within the life-time of man on earth and have been recorded during history.

The existence of these periods of climate change is not in doubt; what is open to conjecture are the causes.

On this, the Alarmists remain mute: they are sure that mans’ industrial activity is the cause of any climate change taking place at the moment, but would have to concede that power stations and motor cars could not have caused the start of a period of climate change 5,000 years ago.

In 1991 the body of a man was found in the European Alps in the border regions of Austria and Italy. He was determined to have died about 5,000 years ago whilst crossing the Alps. Now for a person to have attempted to cross the Alps would indicate that firstly crossing the mountain range was a possibility and known to man at that time, and secondly that the feat was made possible by the absence of snow and glaciers.

Now move forward 2800 years to about 200BCE and the first recorded history of an event involving crossing the Alps took place. That was Hannibal’s crossing of the Alps with an army, including elephants, to wage war on the Roman Empire. This event was clearly documented at the time and is acknowledged to have taken place.

At the time of Hannibal’s efforts, the snowline of the Alps was thought to be in the region of 1,800 meters to 2,000 meters. Until recently the Alpine snowline was approximately 1,500 meters. What this means is that in modern times the level above the sea at which snow falls and lies on the ground is about 300 to 500 meters lower than when Hannibal achieved his feat. The reason for this is clear – in Hannibal’s time and the centuries earlier going back to 3,000 BCE the air temperature was considerably warmer that it is today.

The world’s climate has changed over the past 5,000 years. What’s caused this change? Is it the result of Mother Nature or God?

Recent periods of climate change

Let’s now move to more recent times and look at the recorded history of events that took place in London.

Between 1660 and 1820 is was quite a common occurrence for the river Thames to freeze over. Not every year perhaps, but certainly enough for people at that time to make comments. Since then the Thames has rarely been frozen, certainly never in recent memory. So the question is: what caused the warming of the air from 1820 onwards?

At the same period of time from 1660, the Great Barrier Reef in Australia was subject to stress caused by a drought that lasted 20 years from 1660. Coral has characteristics not unlike that of trees. Rings in a piece of sliced coral tell the story of events long ago. A piece of coral collected off the coast of northern Australia has recently been examined and it shows the effects of drought in the region. Lack of fresh water, and therefore the absences of nutrients, coming from the nearby rivers would affect the growth of the coral and would be noticed in examining the rings.

In the years since then the reef has made a full recovery, although it may be suffering now.

The Alarmists point to the decline in coral reefs as an example of global warming, but ignore the fact that Mother Nature has the remarkable capacity to overcome its setbacks.

The history of the world has countless stories of events that happened long ago that could not happen now.

The original inhabitants of Australia came from SE Asia via a continuous land mass leading from the Malay peninsula, through Indonesia, New Guinea, and into northern Australia.

The original inhabitants of north America are thought to have entered the area about 10,000 years ago via the then ice-free Bering Straits. That feat couldn’t be achieved today. Likewise the original inhabitants of the UK are thought to have come from Europe via the land mass that is now covered by the English Channel.

So in relation to these events, it would seem that global warming took place and that the world-wide sea level rose covering these routes.

And the most likely causes of these major changes are the Almighty, or Mother Nature.

That being the case in ages gone by, how could today’s global warming (if indeed it’s taking place) be caused by man?

This is an attempt to put some balance into the ongoing international controversy that is the theory of man-made climate change.

Like most people, the author takes a keen interest in the world-wide controversy of climate change and global warming, and the alleged effect this will have on life on earth. He also takes an interest in more mundane issues such as hoodia diet pills and the increasing popularity of Dish Network satellite TV

Author: Gareth Black
Article Source:
Home care

CBD COP-10 and the Eve of UNFCCC COP-16

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.

Insights from Disaster Law . . . part 3

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.

Insights from Disaster Law . . . part 2

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.

Insights from Disaster Law . . . part 1

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.