Summary: Prior to the Conference of Parties in Paris, this blog shared weekly stories about the intricacies of the compact that would come from the Conference. The environmental law world buzzed with optimism as late November neared. Less than four months from the release of the Paris agreement, Professor Mark Latham does not share the optimism expressed by others. Whether the Paris agreement can avoid being another Kyoto Protocol depends on the technology and lifestyles that developing nations choose to adopt as they eventually earn more income and whether the American government steps up to be a leader in environmental protection.

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By Mark Latham

The climate change negotiations held in Paris late last year achieved what many believe is a groundbreaking international agreement. While there may be a sense of optimism that the agreement reached at the COP 21 proceedings will serve to avert the catastrophic impacts associated with a warming planet, there are several reasons why I remain doubtful that the well-intentioned agreement will result in meaningful reductions in global greenhouse gas emissions.

First, let us not forget that we have trod down this path once before. Negotiators previously reached a “groundbreaking” international agreement that was expected to halt the global rise in greenhouse gas emissions. In 1997, the Kyoto Protocol was negotiated at a previous Conference of the Parties and subsequently ratified by 190 countries. It was expected to set the stage for a five percent reduction in carbon emissions that would occur beginning in 2008 through 2012, based on 1990 emission levels. The Kyoto Protocol was undoubtedly a stunning example of what could occur through intensive international diplomacy, cooperation and negotiation.

The only problem, however, is that the Kyoto Protocol didn’t work to reduce overall global carbon emissions. Granted the United States didn’t help matters when it stepped aside and did not participate in the efforts to reduce emissions called for by the Kyoto Protocol. Another problem that contributed to the ineffectiveness of the Kyoto Protocol was the exclusion of rapidly growing economies, namely China and India, from the requirement to reduce carbon emissions.

Second, since it is virtually impossible for President Obama to take any meaningful action to reduce carbon emissions without Congress on board, EPA developed the Clean Power Plan, which obligated states to develop and implement plans to reduce carbon emissions. This was the center piece of the Obama administration’s plan to address climate change.

In an unprecedented step the Supreme Court stayed the implementation of the Clean Power Plan. Without the Clean Power Plan it is not likely that the U.S. will meet the reduction targets called for by the efforts of the COP 21 proceedings. Further, given the climate change skepticism routinely expressed by the Republican presidential candidates, if the GOP does indeed win the White House later this year, no federal effort to reduce greenhouse gas emissions will occur. Without U.S. leadership toward greenhouse gas reductions, other countries may decide to follow suit and not take action to combat climate change, which would sabotage the efforts called for by the COP 21 proceedings.

Third, as developing countries strive to achieve increased prosperity, those that succeed in this endeavor will raise the standard of living for hundreds of millions people. As incomes grow and concomitant gains in the standard of living occur, the new entrants to the middle class will desire what the middle classes in developed economies have had access to for decades, if not longer: namely, stable and reliable sources of electricity, and also access to the full range of energy-intensive consumer products and durable goods including computers, smart phones, tablets, HD televisions, refrigerators, washers and dryers, air conditioners, and automobiles. Alongside the acquisition of such goods, a corresponding rise in energy demand will also occur. This, in turn, will increase carbon emissions as energy demand rises to support the goods acquired by a growing global middle class. One only needs to consider the dramatic rise in carbon emissions that China has experienced side-by-side with its increased prosperity during its rise over the last thirty years as a major global economic power.

Finally, treaties, laws, and regulations simply cannot provide the long-term solutions required to address the global dilemma known as climate change. Sure, laws may help to speed along the development of non-fossil fuel sources of energy through “technology forcing.” But one crucial lesson from the Kyoto Protocol experience is that we can impose all the laws, regulations, and “clean power plans” that the imaginations of policymakers and regulators can muster, but they won’t provide the solutions required to successfully combat the threat that climate change presents. The crux of the problem is a scientific one, so the climate change threat that the world faces requires technology-based solutions. Rather than reliance on legal-based regimes that to date have proven ineffectual at sufficiently curbing global greenhouse gas emissions, policymakers need to unharness scientists and engineers around the world to tackle this problem. This can be accomplished through increased public and private funding into low carbon forms of energy production and increased research-and-development efforts. Policymakers also need to incentivize entrepreneurs through the tax code and offer grants and low interest loans to fund the research and development efforts that are necessary for the technologies that are essential for a low carbon future.

Professor Mark Latham, deputy vice dean for academic affairs, joined the Vermont Law School faculty in 2005. He specializes in a range of environmental issues that arise in corporate and commercial real estate transactions and brownfields redevelopment. His research focus includes the intersection of business and environmental law, and also issues under the federal Clean Water Act.

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