Global negotiations on stabilizing greenhouse gas emissions in the period after 2012 will commence in Bali in December. The main emitters—including Brazil, Canada, China, the European Union, India, Mexico, South Africa and the U.S.—have recently affirmed their commitment to reach a “comprehensive agreement” in these negotiations. They have also promised to contribute their “fair share” to stabilize greenhouse gases to prevent “dangerous anthropogenic interference with the climate system.”
Of course, one of the biggest obstacles, if not the very biggest, to such an international agreement has been the U.S. itself. The U.S. not only has failed to ratify the Kyoto Protocol—the international framework to limit emissions up to the year 2012—but also has failed to put forward any meaningful stabilization strategy in its place. One of the most shocking aspects of the U.S. failure has been the country’s disregard for both international and domestic law. Yet this lawlessness looks set to change.
In recent years the unilateralist foreign policy of the U.S. government has shamelessly ignored or contravened countless aspects of international law, ranging from the Geneva convention to multilateral environmental treaties to which the U.S. is a signatory.
This brazenness has infected the very core of policy discussions in our country. Consider an opinion piece by two distinguished professors of law at the University of Chicago, who argued in the Financial Times on August 5 that the U.S. has no obligations to control greenhouse gases and that if other countries don’t like how the U.S. behaves, they might think about paying the U.S. to cut its emissions.
Stunningly, the law professors completely neglected that the U.S. is already bound to take steps to stabilize greenhouse gases in the atmosphere under the United Nations Framework Convention on Climate Change, signed by President George H. W. Bush and ratified by the Senate in 1992. Their claim that the U.S. has no duty to avoid damaging the climate of others is flatly contradicted by the Convention, which declares in its preamble that “in accordance with the Charter of the United Nations and the principles of international law…. [States have] the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.”
Ironically, those law professors are running away from international law even faster than the Bush administration. John B. Bellinger III, a legal adviser to the State Department, recently emphasized the administration’s commitment to international law and referred to its allegiance to a post-2012 climate change framework in that context.
The Supreme Court also weighed in recently to affirm that U.S. domestic law compels stronger federal action to mitigate climate change. Massachusetts, among a number of plaintiffs, sued the Environmental Protection Agency for its failure to regulate the emission of carbon dioxide by automobiles. The court firmly struck down all the EPA’s defenses for inaction: it noted that the EPA is obliged to regulate any deleterious pollutant emitted by motor vehicles; that carbon dioxide clearly falls within that category; that Massachusetts had standing to sue because climate change was already claiming part of the state’s coastline; and that the state was vulnerable to considerably greater coastal losses this century if climate change is not mitigated. Moreover, it emphasized that mitigating U.S. auto emissions would have a meaningful effect on the pace of climate change.
The obligation to limit greenhouse gas emissions is therefore already the law of the land, and it’s high time we began respecting those laws. We should do so not only because it is important that we honor our legal commitments but because we made those commitments for reasons of our own survival and well-being. Even an administration that has dragged its feet for seven years is finally beginning to face that reality.
This article was originally published with the title Climate Change and the Law.