Cap-and-Trade Bill May be Prelude to Global Governance of U.S. Domestic Policy
ENVIRONMENT & HEALTH, SUSTAINABILITY, HUMAN RIGHTS, LAW & JUSTICE
Tuesday, July 7, 2009
On June 26, the U.S. House of Representatives passed the American Clean Energy and Security Act of 2009, also known as the Waxman-Markey cap-and-trade bill. As written, this bill would set aggressive greenhouse gas emissions reduction targets. In light of the upcoming United Nations Climate Change Conference (COP15) to be held in Copenhagen in December 2009, the passage of this bill could be an indication of the U.S. Congress’s willingness to accept a legally binding international climate change agreement, potentially subjecting the U.S. to the global governance of its domestic environmental policies.
The purpose of COP15 is to develop a successor agreement to the Kyoto Protocol, which is set to expire in 2012. The United States is not party to the Kyoto Protocol, as the Senate never ratified the document. The Obama Administration, however, is committed to developing a legally binding climate change agreement at Copenhagen. Though this agreement would still have to be ratified by the Senate, many in the international community view the passage of the cap-and-trade bill as the positive momentum needed to ensure the ratification of any outcome document at COP15.
Though no official “draft agreement” for COP15 has been produced, the UN Framework Convention on Climate Change’s Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention has developed a “negotiating text” that it hopes will form the basis for the climate change agreement developed at the December conference. This negotiating text was prepared for and discussed at the Bonn Climate Change Talks, which were held June 1-12, 2009. The June talks were the second of five scheduled negotiating sessions leading up to COP15.
Some key features of the negotiating text include establishing legally binding emissions limitation and reduction targets; the development of “national adaptation plans” by all States party to the agreement; and support for developing countries by developed countries, both financially though the establishment of climate change funds and possible global carbon taxes, and technologically through technology transfer and the loosening of intellectual property rights protection.
In addition, the negotiating text sets the stage for the creation of some sort of international compliance or monitoring mechanism to ensure implementation of the agreement. According to the negotiating text, this could be done through the establishment of one or more committees similar to the Committee on Economic, Social and Cultural Rights or the Human Rights Committee which monitor the implementation of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights respectively. States party to the climate change agreement would be required to submit annual “national communications” to “provide details on the goals, policies and measures that underpin the Party’s commitments, including details on (1) expected emission reduction pathways, including mid- and long-term emission reduction goals, and (2) enabling domestic measures, such as emissions trading regimes and renewable energy targets.” The monitoring committee(s) would be responsible for providing suggestions to States on how to better implement the climate change agreement, and, according to one option in the negotiating text, could even penalize States who failed to meet their emissions reduction requirements.
By signing on to such an agreement, the U.S. would be opening itself up to the global governance of its domestic climate change policies. The international community could essentially monitor and critique the effectiveness of domestic legislation, such as the cap-and-trade bill, and force the United States to adopt further legislation to meet international climate change standards. Such exposure to international scrutiny would interfere with the United States’ right as a sovereign nation to decide for itself through an open and democratic process the environmental policies that best meet its needs.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.
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