Last Updated: 12/08/2004
In the seven years since the Kyoto Conference the scientific debate over the reality of global warming has been largely settled. Yet the effectiveness of the treaty that has been rejected by the U.S, and which excludes the worlds fast growing developing economies remains widely questioned. Kyoto’s leading critic, the U.S Government, recently admitted that global warming is taking place and that this is a result of human activity.
While the Russian Duma's November 18th
accession to the Kyoto Protocol garnered the headlines, it may not be the most
significant indication as to the eventual regulatory dynamics of what some
atmospheric scientists have tagged the carbon constrained world of the future.
Perhaps just as important are the acknowledgements coming out of the Bloomberg
wires that a number of major U.S companies - including General Motors, DuPont
and Xerox - are voluntarily cutting carbon dioxide emissions to remain
competitive in Europe.
The rationale amongst these companies is
that unless they adhere to the emissions standards now legal throughout Europe,
and due to become law throughout the 126 Kyoto Protocol signatory states on
February 16th 2005, they jeopardize their ability to operate
factories or sell products in countries that have ratified the treaty; this
according to Richard Sandor, chairman of Chicago Climate Exchange, which
certifies companies that reduce greenhouse gas emissions.
In the seven
years since the Kyoto Conference the scientific debate over the reality of
global warming has been largely settled. Yet the effectiveness of the treaty
that has been rejected by the U.S, and which excludes the worlds fast growing
developing economies remains widely questioned.
Kyoto's leading critic,
the U.S Government, recently admitted that global warming is taking place and
that this is a result of human activity. Nonetheless, the Bush administration
continues to oppose the environmental treaty due to what it maintains would be
its negative effect on U.S. industry, and because it
unfairly assigns varying levels of carbon dioxide reductions to wealthy and
However a growing number of U.S. companies are now citing Kyoto as a major reason
for revamping their environmental strategies. As well as being conscious of
having to meet overseas environmental regulations that are more onerous than
those in the U.S., some
companies are trying to get a head start in preparing for, in the long-term, may
be a changing environmental legal landscape in America.
As a case in point,
since Kyoto the chemical giant DuPont has cut
carbon emissions from its plants in the United States by 67%, something the
company says has "positioned our businesses for the marketplace of 20 to 50
years from now."
Another American business behemoth, American Electric
Power Co. recently announced plans to construct a $1.6 billion plant that will
use a process called coal gasification. The process transforms coal into
synthetic gas before burning it, significantly reducing emissions including
carbon dioxide. AEP Chairman Michael Morris said that the challenge facing the
company "is to build a power plant that takes into account environmental
prospects over a 30-year life."
This sea change amongst some leading
American energy companies
precipitated, at least in part, by such a highly
contentious treaty begs the question as to how indicative Kyoto is of an initial
forming of a transnational polluter pays regime.
The weaknesses of the
have been well documented. The most criticized aspect is that rapidly growing
developing economies, such as China and India, are
exempt from emission reduction targets. Scientists for Global
Responsibility, a British nonprofit organization that supports the Kyoto
Protocol, has said the present diminished pact would have a small and
insufficient impact on global warming. Further weakening the treaty is that
penalties for failure to meet emissions goals were largely stripped out of the
agreement in 2001.
In response, advocates for the Kyoto treaty maintain that
the Protocol's effect will amount to more than the sum of its weaknesses. They
say the current trend of companies citing the Kyoto standards when reforming their
environmental behavior illustrates the treaty s potential in creating a new
paradigm for global environmental law. Furthermore it generates compliance
without heavy handed and difficult to enforce enforcement mechanisms. This
interpretation of Kyoto's benefits reflects much of current
international legal theory, which emphasizes international laws aspirational
nature as an ongoing effort to construct regimes of international behavior. Such
an interpretation relies heavily on the vagaries of international politics and
Russia's acceptance of Kyoto is seen as being heavily influenced by its desire to
integrate itself firmly in the west, and in May Russian President Putin struck a
deal that linked Russian ratification of Kyoto with European support on joining the
World Trade Organization. Andrei Illarionov, Mr. Putin's economic adviser,
said after the decision to join was announced that it was "motivated purely
by politics - not by science or economics."
Whatever the maneuverings at
the level of international diplomacy regarding the international effort to
combat global warming, less tangible forces are now providing environmental
advocates cause for optimism.
Typically, Globalization has been a
whipping boy for environmentalists. A favorite analogy has been to compare
globalization as a race to the bottom as multinationals seek the cheapest and
least regulated place to do business. In line with this, are the views of the
Washington, DC-based Competitive Enterprise Institute. The institute opposes the
Kyoto Protocol asserting that costs involved in implementing the agreement make
it unfeasible. Myron Bell, an environmental policy expert at the institute, has
said that European industries that spew pollution would either move to countries
where Kyoto does
not apply or nations will decide not to comply .
In contrast, some
environmental and consumer advocates and commentators, such as Otto Prohl,
regard globalization - through the vehicle of international law - as a way to
initiate a race to the top through exploiting Europe's far more precautionary philosophy to regulation
as way to directly influence the behavior of U.S multinationals. "We feel that
Europe is a real opportunity...We're pushing where the opportunity for
innovation is greatest" says Ned Helme, executive director for the Center for
Clean Air Policy in Washington. Helm's belief that Europe's
regulations to curb the gases believed to cause global warming, will promote
change in the United States has been vindicated by the recent efforts of DuPont,
General Motors Xerox, and the General Electric
At the heart of the process is a
trans-Atlantic difference in legal philosophies - particularly Europe s utilization of the precautionary principle in
economic regulation, which is a key tenet in international environmental law.
The precautionary principle essentially means that officials should be cautious
when information is uncertain, unreliable or inadequate. Thus European lawmakers
tend to emphasize the cost of inaction as a cost-benefit analysis to society.
This is in contrast to the American legislative culture, which focuses on the
cost of action, as a cost-benefit analysis to business, which holds that the
benefit of imposing regulation should outweigh its cost.
The ramifications have set off alarm bells
amongst some U.S. industry groups. In response the
chemical and electronics industries have lobbyists in Brussels in an attempt to
temper the instincts of European officials to regulate their business, without
the customary evidence of harm required under U.S regulatory law. James
Lovegrove, managing director of the European division of the American
Electronics Association, a United States industry lobby, sums up the fears
facing many American firms in a world wide market place using a shrinking canon
of law and regulation; "The EU is going where no man has gone before The moment
the ink hits the paper in Europe it becomes a global piece of legislation.