Cubing the Kyoto Protocol: Post-Copenhagen Regulatory Reforms to Reset the Global Thermostat

Abstract

ABSTRACT: The Copenhagen Conference of the Parties (COP-15), which took place in December 2009, was intended to set in stone an ambitious global climate change agreement for the post-2012 period, when the Kyoto Protocol expires. It did not succeed, resulting only in a 13-paragraph political accord which was not agreed to, but only noted because of lack of consensus. The COP-16 in December 2010 in Cancun, Mexico, met a similar, if less contentious, inconclusive end. Every fundamental issue was left unresolved at both disappointing critical Conferences. Left unreformed as an international legal regulatory mechanism, the Kyoto Protocol has no chance of success, and terminates by its own terms in 2012. A new legal architecture must address issues of participation, global warming chemical emissions, the failure in both participating developed nations and developing nations to shift power generation bases to sustainable low-carbon alternatives, misuse of carbon offsets, and lack of effective enforcement. This article proposes a four-sided approach towards a new international legal architecture. I describe these approaches in the following dimensions, and propose to create a model of governance that will put into place the ideals of the Kyoto Protocol. Dimension 1: The legal line covering international stakeholders must be altered to include transitional developing countries. Policies must speak a new language of carbon control through adding forestation preservation protocols and including regulation of the most harmful global warming chemicals in developing countries. Dimension 2: There is no Kyoto Protocol legal requirement whatsoever that developed economies make any shift to zero-carbon renewable power resources. A new legal architecture must construct renewable power alternatives. The successful demonstrated model for developing countries is examined in the article for a post-Kyoto legal protocol. Dimension 3: There must be incentives for in-country zeroemission renewable compliance options rather than non-C[O.sub.2] external offsets as a default option. Legal mechanisms must be carefully tailored to different regulatory systems. Dimension 4: The Kyoto Protocol contains no enforcement architecture or compliance mechanism. A method of legal enforcement, applicable in real time, must be implemented if international carbon control has any chance for success. Kyoto is an international legal system that requires a dimensionally cubed reform of its basic legal architecture to become anything other than an unsuccessful historical footnote. At risk is the warming of the planet and well-publicized catastrophes. Without all of these four dimensions of legal reform, the Kyoto Protocol lacks the requisite legal depth and coverage to function as an effective limit on global warming forecasted to take place in the 21st century. If the Kyoto Protocol continues beyond 2012 in its current legal format, as the April 2008 Bangkok and 2009 Copenhagen climate change conference now plan, (1) it will fail. Mere extension of the original Protocol will not work. There must be final alterations in the scope of the regulatory construct. This Article draws this new architecture for international carbon regulation in the above four dimensions. The final section of this Article examines whether U.S. carbon control legislation now working through the U.S. Congress could aid or remedy these Kyoto deficiencies. ABSTRACT: I. A NEW CUBIST CARBON ARCHITECTURE A. Legally Covered Countries B. CDM Zero-C[O.sub.2] Technology-Transfer C. Increasing In-Country Compliance D. Enforceable Implementation in Real Time II. THE FIRST DIMENSION: PARTICIPATION A. The New Math of Effective Kyoto Architecture B. Reforming Forest Architecture--Now Ineligible under Kyoto C. Black Carbon III. THE SECOND DIMENSION: REENGINEERING THE POWER BASE IN NON-ANNEX 1 DEVELOPING COUNTRIES A. …