LAW DAY: Tackling Climate Change Requires Coordination


Chimneys of a coal-fired power plant smoke beside a wind turbine in Gelsenkirchen, Germany, Thursday, April 22, 2021. U.S. President Joe Biden pledged to cut U.S. greenhouse gas emissions at least in half by 2030 during a virtual Earth Day climate summit. (AP)
By 
Elizabeth A. Elliott
The Daily Record

Climate change is a global issue that countries address in their own ways. To achieve success, they have built frameworks that have changed over the years.

What they have in common, though, is seeking to use the rule of law as a foundation upon which to coordinate an international response to climate change. From there, political power must uphold the decisions made in negotiations among many countries.

Michael Kelly, a law professor at Creighton University School of Law, said the framework has changed over the years.

“The better framework was the Kyoto Protocol in the 1990s, but the fossil fuel industry killed that during the Clinton administration,” Kelly said. “The president that followed was from the oil industry so that didn’t go anywhere for eight years.”

During the eight years of the George W. Bush presidency, Kelly said the U.S. faced the distractions of the fallout of 9/11 and two wars.

“The Kyoto Protocol actually had benchmarks and requirements,” he said. “Then after Bush, we had Obama who was not from the oil industry. He flew to Paris to help negotiate the Paris Agreement which was not as strong as Kyoto because every country gets to set their own limits and enforce their own limits.”

Kelly added: “There’s not an international mechanism that enforces against you so it’s a watered down version but the goals are still there.”

Donald Trump had investments in the petroleum industry, Kelly said, and his administration withdrew from the Paris deal. President Joe Biden recently rejoined it.

“For the past 30 years, what the world has seen is us plugging in and then unplugging depending on who is in charge,” Kelly said. “How reliable are we?”

Imagine putting yourself in another country, maybe Mauritania or Nigeria, where the rule of law may be slipping away or where democracy may be weakening.

“What incentive do they have to cut their own emissions when we are not providing the leadership to be dependable and we’re the ones that emit something like 15% of the greenhouse gases” Kelly asked. “There’s definitely an equity argument working.”

Kelly said it makes sense to have a gravitational center on the international plane where everyone agrees on the text of the treaty and the requirements that they’re supposed to do something.

“The Paris Agreement does go some way to do that but as far as enforcement there’s not really international enforcement,” Kelly said. “It’s up to each state to enforce their own limits, and in each state their politics change like ours does.”

Kelly said that the issue has to be approached in a multipronged way. John Kerry, U.S. special presidential envoy for climate, is taking the diplomatic prong.

“In many ways he’s the perfect person to be engaging with those countries and with India, China and the European Union who give foreign aid to the other countries,” Kelly said. “Legal framework can address it, but can we come up with the legal framework to address it? That’s the real trick and that requires political will.”

Kelly said every treaty the president brings home must be approved by two-thirds of the Senate — a threshold that requires votes from Republicans, even if the Senate moves to stop the filibuster.

“There’s no way we would get a climate change enforcement treaty through the current Senate,” Kelly said. “An international legal framework would be the answer, but it can’t be the answer right now because of the current makeup of our Senate.”

Elizabeth Chalecki, an assistant professor of political science at the University of Nebraska at Omaha, said the legal framework being advanced is the United Nations Framework Convention on Climate Change, which sets up the guidelines for all future cooperation on climate change mitigation or adaptation or anything else.

“The problem with nations not cooperating with the legal framework is they don’t have to,” Chalecki said. “There’s no penalty for not obeying international law.”

Even under domestic law, it’s up to a sovereign authority to conduct enforcement — which does not always happen, especially regarding environmental issues.

“International law is voluntary agreements by sovereign states to observe a treaty or convention or not observe a treaty or convention,” Chalecki said.

Chalecki said it’s not really something that more law would solve at the international level.

“What we are going to need is more political solutions, more economic solutions and even some technological solutions,” she said. “Nations can pledge to do just about anything or not be part of the treaty, but their violating it isn’t really a decline in the rule of law — it’s more that they pledge to do one thing and the economic conditions in their country or political pressures on their lawmakers is pushing them in the other direction.”

Chalecki said the failure to come together so far doesn’t reflect a decline in the rule of law.

“We still know what international law means and what it can and what it can’t do,” Chalecki said. “Nations can join or leave any treaty at any time for any reason. It’s not so much a decline in the rule of law as it is competing pressures on governments to cut or not cut climate emissions.”

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