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Volume 39, Issue 9 — September 2009


Meaningful Participation in a Global Climate Regime

by Bryant Walker Smith

Editors' Summary

An effective climate regime must be global rather than merely international and must recognize the significant involvement of actors other than states. This Article first examines the role of statism in the existing international climate regime and challenges several assumptions that underlie the demand for the global South's "meaningful participation" in that regime. It then demonstrates how the global South is already participating in a global climate regime through the activities of private economic actors from around the world. It finally proposes approaches for reconciling these two important regimes in the agreement that succeeds the Kyoto Protocol.

Drawing the Line: Striking a Principled Balance Between Regulating and Paying to Protect the Land

by John Echeverria & Jeff Pidot

Editors' Summary

Effective conservation is at times frustrated by a lack of balance between regulation and payment, the two tools most often used for land protection. Efforts to determine which protection tool to use should consider factors such as the proper roles of payment and regulation, use of eminent domain or permanent easements, the temptations of political expediency, and public participation in the decisionmaking process.


Regulating Climate: What Role for the Clean Air Act?

by Brigham Daniels, Hannah Polikov, Timothy Profeta, and James Salzman

For the Barack Obama Administration, addressing climate change has quickly risen as a priority. How the Administration should address climate change, however, remains very much in question. The U.S. Congress has started to move on climate legislation, but assuming passage, the final shape and detail of these efforts may not be known for months or even years. In the meantime, the Clean Air Act (CAA)1--a complex legal framework with many regulatory hooks and levers--remains the law of the land.

In light of the CAA's central role in addressing climate change over at least the near term, and perhaps far longer, on March 26, 2009, a group of the nation's leading CAA experts gathered at Duke University to focus specifically on how the U.S. Environmental Protection Agency (EPA) could or should use the CAA to reduce the nation's greenhouse gases (GHGs). Cosponsored by the Nicholas Institute for Environmental Policy Solutions at Duke University, the Duke Law School, and the Harvard Law School, the conference was organized with robust participation from EPA. To ensure that the presentations and discussions were policyrelevant, each panel commenced with a speaker from EPA providing an overview of the current policy landscape. The speakers who followed, drawn from academia, industry, and the nonprofit sector, then focused on specific opportunities and challenges presented by the CAA.

This short Article highlights the major points raised during the day-long conference and seeks to provide insight into the factors EPA will need to consider as it moves forward with crafting GHG regulations under the CAA. We by no means claim to provide a full catalogue of the insights and discussion of the different panels but instead try to crystallize the key messages of the day as perceived by the authors.

Using the Tools of Pollution Prevention to Reduce Greenhouse Gas Emissions

by Richard Reibstein

Our public debate about policy to combat climate change sometimes seems limited to a choice between trading and taxes. Yet, there are other tools of governance that could be more actively examined. The problem of global warming is so big that we should be actively pursuing a "full-toolbox" approach of doing everything we can, and considering how each strategy can be synergistically implemented in concert with other strategies. This Article argues for greater attention to a suite of tools successfully used to promote pollution prevention: assistance, planning, and expanded right to know reporting. These tools employ a mode of governance that may be termed "relational," where government complements traditional enforcement with efforts to encourage self-responsibility and enlist collaboration with willing members of the regulated community. That community is not a homogeneous group, but is composed of many different entities presenting a great variety of motivations and capacities. A full-toolbox, relational approach can more powerfully control risks and harness the potential for creative solutions, fostering not just environmental progress but also building the social and intellectual capital necessary for the technological and economic advancement that will most effectively solve our problems. The pollution prevention (P2) movement provides examples of how we might best use government to mobilize resources to address global warming.

Regulating Greenhouse Gases at the State Level: California's Self-Inflicted Burden

by Rajiv A. Tata

As lawmakers debate the best way to confront the issue of global warming, it is becoming clearer that the issue may be one of this generation's most important policy decisions. Despite increasing public awareness of the perceived problem, the federal government successfully circumvented the issue for most of this decade, thereby creating a regulatory void that environmentalists and scientists have sought to address.

To fill the vacuum, California developed a regulatory response to the mounting data suggesting a man-made cause for climate change. While the state should be admired for its initiative, these regulations will have a significant impact on California's transportation industry. The first, an Airborne Toxic Control Measure for In-Use Diesel-Fueled Transport Refrigeration Units and Transport Refrigeration Unit Generator Sets (TRU ATCM) attempts to regulate emissions from refrigeration units affixed to highway semi-trailers that transport perishable goods. The second regulatory program, authorized by the California Global Warming Solutions Act of 2006, seeks to reduce greenhouse gas (GHG) emissions by improving heavy-duty vehicles' fuel economy through the use of aerodynamic devices.

This Article will examine California's attempt to address the global warming issue through the use of the aforementioned programs by explaining the programs themselves and their practical impact on the transportation industry, and analyzing the likelihood of the regulations surviving legal challenge. The result will demonstrate that due to the unique and fluid properties of the contaminants that are being regulated, U.S. courts will need to reexamine their current analysis of such regulations and develop a new standard for reviewing GHG emission regulations. Such an approach is likely to result in a more equitable apportionment of the burdens associated with realizing the global benefit of GHG emission reductions.

Perpetuity, Latent Ancillary Rights, and Carbon Offsets in Global Warming Era Conservation Easements

by James L. Olmstead

The reality of global warming and climate change is indisputable. The vast majority of scientists in all countries who have addressed this subject have spoken: global warming is real, and it is happening now. The world's scientists also harbor no doubt as to the cause. It is humanity's discharge into the atmosphere of enormous amounts of heat-trapping "greenhouse gases." This unprecedented assemblage of scientists has also predicted that runaway global warming will result in nothing short of a biological, environmental, social, and economic cataclysm.

What remains to be seen is precisely how global warming effects will play out. The world's scientists have explained that the timing and extent of global warming-caused catastrophes will in many cases be determined by various "tipping points," or environmental states beyond which there can be no return. The most immediately understood tipping point is based on the melting of our polar ice caps that is occurring in a dramatically rapid nonlinear and exponential manner resulting from powerful feedback loops.

Of all the governmental and nongovernmental entities and collectives poised to fight global warming, one of the leaders in the fight will be the land trust community.


Avoiding Ghosts of Christmases Yet to Be

by Tom Mounteer

Just as when comprehensive climate change legislation reached the floor of the U.S. Senate in the fall of 2008, the U.S. House of Representative's passage of the Waxman-Markey climate change bill (officially H.R. 2454, the American Clean Energy and Security Act) gave hope to supporters of comprehensive federal legislation.

The Climate Security Act of 2008 (S. 3036), introduced in May 2008, by Sen. Joe Lieberman (I-Conn.) and Sen. Mark Warner (D-Va.), made it to the floor of the Senate only to fall prey to proponents' inability to rally 60 votes to end opponents' filibuster.

Given the competing demands of the Barack Obama Administration's legislative agenda, not the least of which is enactment of comprehensive health care reform, it was impressive that House leadership was able to get the Waxman-Markey bill through as quickly as it did. Some last-minute horse-trading made that possible.

Senate proponents of the legislation are promising equally quick passage, though pundits suggest the legislation may face greater obstacles than in the House. Advocates of aggressive reform are concerned that any more horsetrading to secure Senate passage will undermine the legislation's goals. Many now suggest that the Senate will not act as rapidly as leadership has pledged and suspect the Senate bill will carry over until 2010, if not until after the midterm election.

OECD Conference on Fostering Safe Innovation-Led Growth in Nanotechnology

by Lynn L. Bergeson

There is little doubt that nanotechnology is delivering on its promise to revolutionize many sectors of the global economy. As nanoenabled products populate the commercial landscape at an accelerated pace, there is growing interest in developing tools that can be used to assess more precisely the benefits to the environment of nanotechnology and/or nanoenabled products. Largely in response to this growing interest, the Organization for Economic Cooperation and Development (OECD) convened on July 15-17, 2009, a fascinating threeday conference in Paris, France, titled OECD Conference on Potential Environmental Benefits of Nanotechnology: Fostering Safe Innovation-Led Growth. The conference was intended to jump start a more structured dialogue aimed at identifying and quantifying the environmental benefits of nanotechnology while fostering the safe, innovation-led growth of nanotechnology. The conference attracted over 200 attendees from all over the world. The Conference Steering Committee elected to use the term "life-cycle perspectives" to characterize the need to consider both the benefits and impacts throughout the life cycle of the nanomaterial or nanotechnology application.

Key among the conference's objectives were identifying the range of environmental challenges that could benefit from nanotechnology, the possible environmental benefits from applying these technologies, and challenges for developing, commercializing, and applying nanotechnology for environmental benefit. The conference also sought to review key, state-of-the-art technologies that have the potential to provide environmental benefits, to consider the environmental, health, and safety implications related to the use of nanotechnology for beneficial environmental purposes, and to discuss policy measures for addressing challenges in the application of nanotechnology for environmental benefit and their relevance in the context of future OECD work programs.