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Monday, June 18, 2012
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Dispatch from Rio: Incorporating ‘Sustainability’ into the Human Development Index

By Guest Author, Angel Hsu, Project Manager, 2012 Environmental Performance Index










Shortly after I landed in Rio de Janeiro, I participated in a side event hosted by the Armenia government on “Sustainable Development Indices – possible options” at the 2012 Rio Earth Summit. In a previous post I mentioned the importance of metrics and indicators to help track progress toward the implementation of Sustainable Development Goals (SDGs), a set of clearly defined objectives that were originally proposed by Colombia and are meant to get governments to pay attention to poverty eradication and environmental sustainability.

Armenia has been working since 1995 to transform the Human Development Index (HDI) into a Sustainable Human Development Index (SHDI). The HDI attempts to create a summary measure of human development across three basic dimensions of human development: health, education, and income. The HDI uses a single statistic to serve as a frame of reference for a country’s social and economic development.  It sets a minimum and maximum for each dimension, called “goalposts,” and then gauges where each country stands in relation to the goalposts, normalized as a value between 0 and 1.

Using these same principles, Armenia set out to incorporate an environmental sustainability dimension into the HDI. Figure 1 shows a diagram of the environmental indicators incorporated into Armenia’s version of the SHDI.  They’ve basically divided environmental indicators into two types: those relating to the environmental state of a territory; and those relating to the environmental evaluation of human activities. The next tier of 11 indicators relate to specific environmental issues, while some of those indicators are further defined.

Figure 1. Environmental indicator component of the SHDI. Source: Karine Danielyan,                                 one of the presenters on the panel.

The structure and indicators included in Armenia’s SHDI bear a striking resemblance to what I was asked to present – the 2012 Environmental Performance Index (Figure 2), a joint initiative between the Yale Center for Environmental Law and Policy (YCELP) and the Center for International Earth Science Information Network (CIESIN) that ranks 132 countries on their environmental performance.  Like Armenia’s SHDI, the EPI looks at environmental performance in two overarching objectives: environmental health and ecosystem vitality.  We also include many of the same indicators as the SHDI, including access to water and sanitation, forest loss, and biodiversity protection. I was struck by how congruous our two efforts were, and how we face similar challenges in attempting to develop meaningful indices that provide a strong signal as to environmental performance and sustainability.

Figure 2. Indicator framework of the 2012 Environmental Performance Index.

Some of the key lessons I took from our panel that could help guide negotiators in their consideration of indicators and metrics for SDGs include:

  1. In developing indicator frameworks and indices, there is a tension between the “real” and the “ideal.” While ideally, indices would be comprehensive, data gaps limit the ability to measure an “ideal” picture of sustainability. In the case of Armenia, they were able to include indicators of waste management.  At the global level, there aren’t complete datasets of national waste management statistics.

  2. A tension also exists between complexity and simplicity.  In the YCELP-CIESIN experience, we’ve found that simplicity and clear policy signals matter when it comes to the practical applicability of something like the EPI to help policymakers understand areas in which they perform well, and areas in which they lag. YCELP and CIESIN’s first effort to produce an Environmental Sustainability Index (ESI) contained 76 indicators covering multiple dimensions of sustainability was considered to be too complex.  One single, aggregated number from 76 underlying indicators proved to be too weak of a signal for policymakers to truly understand how they were doing on environmental issues.  Therefore, in 2005 we tightened the focus to only look at environmental performance and issues for which governments can be directly responsible. The Armenians, however, are working the other way – adding a sustainability dimension to the SHDI because they feel it is too simple and not comprehensive enough.

  3. Time series analysis is critical in revealing sustainability and environmental performance trends. The Armenians brought up the incorporation of time series data as an inevitable next step for their SHDI.  We also arrived at the same conclusion after a decades’ work on indices.  Therefore, for the first time, we collected time series data for each of the 22 indicators in the EPI and utilized the data in several ways:

               -We used the full range of time series of data to determine policy targets for each indicator.

               -We backcasted EPI scores and rankings for each country for the last decade.

               -We used the time series data to evaluate the consistency and quality of data for each country, which many times led us back to the original data sources to check seemingly anomalous points.

               -Most significantly, we produced a Pilot Trend EPI that ranked countries on their rate of improvement on the EPI over the last decade.

I hope that some of these lessons we – along with Armenia’s experience – will prove valuable when countries are tasked with the job of developing indicators to demonstrate progress toward SDG implementation.  So far, mention of indicators and the need for metrics are peppered six times in the latest version of the negotiation draft, which is still being discussed hotly in Rio.

Angel Hsu is a doctoral student at the Yale School of Forestry and Environmental Studies and project manager of the 2012 Environmental Performance Index.

Posted in: Environmental Performance Measurement
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Three Reasons America Should Ratify the Law of the Sea

By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies '12

It’s been thirty years since the Third United Nations Conference on the Law of the Sea (UNCLOS III), a treaty establishing international rules for the collective governance of the  world’s oceans, was first signed by the assembled nations of the UN in Montego Bay, Jamaica. Since that time its ratification by Congress has been debated every few years with new fervor, vainly.

As Mark Landler of the New York Times recently reported, UNCLOS is back on the docket in Congress, as Senator John Kerry, chairman of the Foreign Relations Committee, called Secretary of State Hillary Clinton and Defense Secretary Leon E. Panetta, among others, to testify before the Senate in the first of what will be many hearings on the importance of US ratification of UNCLOS.

Though there have always been strong arguments in favor of ratification, now has never been a better time to truly consider joining our country with the nearly 200 states that have ratified this treaty (161 states plus the EU to be precise).  Here are three reasons we should ratify UNCLOS right now:

1. The Arctic is Opening

Anthropogenic climate change is driving measurable loss of sea ice and warming of surface waters across the Arctic Ocean, meaning the Arctic is now more accessible to ocean vessels and deep-sea exploration than it has ever been before. 

UNCLOS can provide the framework for the five Arctic states identified in the treaty – the US, Canada, Denmark, Norway, and Russia – to collectively manage the ocean in this newly exploitable and fragile realm. This, importantly, is one of the nine priority objectives of our new National Ocean Policy, a hallmark environmental initiative of the Obama Administration. 

Perhaps more saliently for those concerned with America’s domestic economic interests, UNCLOS also includes a process for Arctic states to claim mineral and oil extraction rights in the Arctic seabed (under the jurisdiction of the International Seabed Authority) in areas beyond their existing national claims. Until the US ratifies UNCLOS it will not have access to these provisions and it will be unable to have its rights to these new resources recognized by the international community. 

2. Ecosystem Tipping Points Are Being Reached

According to a new study published in this month’s issue of Nature, the possibility of a large, planet-scale ecosystem shift (wherein the natural world as we know it alters quickly and irrevocably) is theoretically possible and increasingly likely. 

In explaining this increasing likelihood of “shift,” the authors point to a range of human-led drivers of global ecosystem instability that are, cumulatively, moving our planet towards a “tipping point.” Such drivers include the conversion of large portions of the planet towards agricultural production and urban development, the generation of new hypoxic dead zones across the world’s oceans (which is directly related to the first driver), and the mass release of climate forcing greenhouse gases.

The result?  The authors report that, “the biological resources we take for granted at present may be subject to rapid and unpredictable transformations within a few human generations.”

Aside from calling for increased bio-monitoring and forecasting to better anticipate this shift, the authors call for improved management of our planet’s ecosystems and it’s biological communities, particularly the world’s oceans.

Once again, UNCLOS provides a framework for this task:  the convention establishes obligations for protection of the marine environment by signatory states and offers a system for resolving conflicts around marine resources (under the International Tribunal for the Law of the Sea).

Until the US ratifies UNCLOS it will not be an active participant in global discussion about ocean management. Particularly in high seas regions, where management must be collectively overseen by multiple nations, this means we are abdicating our responsibility for solving problems we’ve helped create. 

3. Rio + 20 Will Need Help

This week marks the beginning of the United Nations Conference on Sustainable Development in Rio De Janero, Brazil, which itself marks the 20th anniversary of the landmark Earth Summit that was held in Rio in 1992 (hence Rio+20). 

This conference of world leaders, scientists, and members of civil society and the private sector represents the best-concerted effort by the global community to lay the groundwork for the economic and social advancement of the developing world in a manner that can reduce humanity’s cumulative impacts on the environment.  Plans for improved management and protection of the oceans are one of the main achievements hoped-for in a successful Rio outcome.

But unfortunately, early reports from the conference are not good: the pace of agreement on the issues is slow, and many attendees are voicing skepticism that binding commitments are achievable.

It will be many months before the US ratifies UNCLOS, if indeed it ever does. But signing this historic treaty after a successful Rio conference will signal to the world America’s readiness to become a leader in the global effort to repair and safely manage our environment.  This in turn will give more momentum to the hard work of actualizing the agreements of Rio+20, turning whatever new principles we’ve created into goals, turning those goals into plans, and turning those plans into actions. It will be a long, complicated, and expensive process. And, for America, ratifying UNCLOS must be one of the first steps.

Aaron Reuben is a research assistant at the Yale Center for Environmental Law & Policy, where he studies the policy impacts of environmental health indicators. He holds a Masters of Environmental Management from the Yale School of Forestry & Environmental Studies and is a former Editor-in-Chief of the Yale environmental journal, SAGE Magazine.

Posted in: Environmental Law & Governance
Thursday, June 14, 2012
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The hidden pitfalls of performance ranking: can recognizing good performance lead to to worse?

By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies '12

Humans love to rank. We rank universities and sports teams, investment portfolios and spelling-bee contestants.

Partly we do so to simplify the world in a meaningful way. Rankings, particularly those created by a body of experts, can synthesize complex and opaque information into an accessible and potentially useful ordered presentation: this company has greater potential to earn profits, this school to produce knowledgeable students. We can look at a ranking and know, or think we can know, the better bets from the worse.

But we also rank to recognize good performance and to chastise bad behavior. Think of restaurant health code ratings. Here the goal, besides helping unwitting citizens avoid gastroenteritis, is to improve the performance of the ranked entities. Those at the bottom of a particular ranking can be convinced to shape up or close up, as is the case with health code violators, and those at the top may be blessed with accolades and fungible benefits, as is the lot for the rare restaurant to top out the Michelin restaurant ratings with three stars.  In both cases ranked individuals, we assume, are incentivized to perform well:  the former to improve their station in society, the latter to avoid losing their high status.

In the arena of corporate environmental performance, a term that describes the effort a firm has taken to limit their company’s impacts on the environment, this former trend seems to be especially true.  

In a recent study presented in the Strategic Management Journal, Aaron Chatterji, of Duke University’s Fuqua School of Business, and Michael Toffel, of the Harvard School of Business, examined the environmental stewardship behavior of nearly 600 firms across 5 years in relation to an initial environmental performance ranking.[1] The authors reported that firms that ranked poorly on measures of environmental performance one year were more likely than unranked or well-ranked firms to improve their environmental performance in subsequent years. Like restaurants with low health code ratings, the worst polluters were “shamed” into improving, in this case by lowering their annual total toxic chemical emissions.

This is good news, which supports the theory of rankings as social motivators.

But could the opposite phenomenon also occur? Could a positive ranking somehow incentivize a decrease in firm performance?  That is precisely the finding of a forthcoming study from Ben Lewis of Cornell University’s Johnson Graduate School of Management, who presented his research at the fourth annual conference of the Alliance for Research on Corporate Sustainability (ARCS) at Yale University this past May.

Considering Chatterji and Toffel’s findings that poor rankings led to improved firm performance, Lewis wondered where good rankings could lead. Did well-ranked firms maintain their strong performance over time? Or do they, once christened as good stewards, allow their socially beneficial behaviors to slide?

The answer was somewhat surprising, though perhaps it shouldn’t be. After examining the charitable-giving behavior of more than 400 firms over 5 years, Lewis found that firms that were ranked well on measures of corporate social responsibility were more likely than their low-ranked or unranked peers to perform worse in the future.[2]

Meaning that, at least for socially responsible firms, recognizing good behavior in the present can lead to worse behavior in the future.

Why is this true?

There may be many explanations for this trend but Lewis suggests that part of the answer may lie in the social science of “moral licensing.”

“A substantial body of work suggests that past moral behavior can make individuals more likely to commit potentially immoral actions without worrying about or appearing immoral,” he writes in a working paper on the study.

It is possible, then, that corporations recognized for good social behavior in the past can rationalize poorer behavior in the present. At the very least they are “less likely to reinterpret reductions in future performance as a sign of weakness or cause of concern,” writes Lewis.

Does this mean that we should stop recognizing good performers?  Does this call into question the practicality of rankings in general? The answer, I think, depends on why we rank. Rankings still provide numerous benefits outside of incentivizing good behavior: information is made publicly available and accessible, poor performers are still incentivized to improve, and it becomes possible to identify trends across individuals or within a sector.

But, “from a policy perspective,” Lewis writes, “these results suggest that positive ratings can lead to consequences that are the opposite of those intended by the raters.” And this means that, for the purposes of incentivizing behavior improvements, those who rate may be better off focusing more on chastising poor performers and less on celebrating winners. 


The researchers used environmental ratings from KLD Research & Analytics, Inc. (KLD), which ranks S&P 500 Index and Domini Social 400 Index firms on a variety of  “corporate social performance” metrics, of which environmental performance is a large component.

[2] This study also relied on KDL firm performance ratings.

Aaron Reuben is a research assistant at the Yale Center for Environmental Law & Policy, where he studies the policy impacts of environmental health indicators. He holds a Masters of Environmental Management from the Yale School of Forestry & Environmental Studies and is a former Editor-in-Chief of the Yale environmental journal, SAGE Magazine.

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Thursday, June 07, 2012
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Grid Reliability and Mercury and Air Toxics Standards

By Guest Author, Corinne Bell, Pace University School of Law ‘13

Corinne Bell is a joint-degree student concentrating in energy systems and policy at the Yale School of Forestry & Environmental Studies and concentrating in environmental law at Pace Law School.

The Environmental Protection Agency’s Mercury and Air Toxics Standards (MATS), announced December 21, 2011, regulate power plant emissions in accordance with the 1990 Clean Air Act Amendments. These standards, which take effect April 2013, will prove to be a substantial planning challenge to grid planning and reliability.

Plants affected by MATS have two options: retrofit to meet the new standards within three years, or retire. More than half of the nation’s coal plants are over forty years old, and for a good portion of them, retrofitting will not be cost effective. The EPA estimates that the new rules will result in the retirement of 4.7 GW of coal-fired plants, while Brattle Group estimates the number to be around 50-65 GWs, or 15 percent to 20 percent of our current fleet. Independent System Operators (ISOs) and Regional Transmission Operators (RTOs) have serious concerns about how this will affect the reliability of the nation’s power grid.

ISOs are particularly concerned about the localized effects of decommissioned plants in transmission-constrained areas, including reduced service to certain load pockets. The Midwest ISO (MISO), covering all or part of eleven states in the Midwest, is one ISO that will be greatly affected by the new standards. MISO expects to retire 12.6 GW out of its current resources, totaling 114.5 GW. MATS will also increase pressure on marginal units,[1] and regions are coordinating with neighboring generators and system operators to manage for outages and ensure resource adequacy. Other options being explored to lessen the blow include demand response and behind-the-meter generation. Demand response allows utility customers to adjust their consumption based on price signals and behind-the-meter generation is defined as generation that delivers energy to load without use of the transmission system (for example, solar panels on a residential roof).

In the instance that retrofitting an affected plant is viewed as a sound investment, managers have two big issues to overcome: supply chain and retrofitting timeline restraints and plant outage scheduling.

Two of the available retrofit options, flue gas desulfurization and fabric filters, require a timeline longer than the three years allowed under MATS. The timing issue is further complicated by the relatively small supply of these technologies; it is not possible for suppliers to meet in a timely manner the surge in demand created by MATS.[2] MISO, for example, is looking very closely at these supply chain issues.[3]

Given the large number of plants affected, retrofitting must be carefully scheduled to ensure that enough capacity remains online to meet demand. These retrofit outages will be much longer than standard maintenance outages, which ISOs and utilities have more experience scheduling.

And then there is the issue of who foots the bill. Someone has to pay for the retrofits; does the plant absorb these costs, or can they be passed on to the ratepayer?

While some have called MATS an “attack on coal,” it is only one of the many gathering challenges to coal. (1) The economics of coal power are faltering:[4] coal prices have been on the rise while natural gas prices have fallen drastically. (2) Coal plants are much less efficient than combined-cycle technologies.[5] (3) Proposed Cooling Water Quality rules would also greatly affect coal-fired power plants and, (4) if new plants are evaluated under New Source Review Standards, they could not be built without carbon capture and sequestration (effectively meaning that no new coal can be built). To point to MATS as a coal killer is an overly simplistic view; it should instead be seen as finally internalizing some of the negative externalities for which these plants have not been held accountable in the past.

Energy Bar Association, Sixty-Sixth Annual Meeting, (April 26, 2012) Panel on EPA Regulation of Generator Emissions.

[2] MISO, EPA Regulations: Balancing Reliability, Affordability and Environmental Protection presentation to Energy Bar Association, Sixty-Sixth Annual Meeting.

[3] A MISO report on supply chain issues was expected in late April.

[4] Continental Economics, EPA Regulation of Generator Emissions—Key Market Issues, Energy Bar Association, Sixty-Sixth Annual Meeting.

[5] Id.

Posted in: Energy & Climate
Monday, June 04, 2012
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YCELP Welcomes Environmental Law & Policy Fellow

By Susanne Stahl

The Yale Center for Environmental Law and Policy is very pleased to introduce Bruce Ho, who will be joining the Center and Yale Law School as an Environmental Law and Policy Fellow for the 2012-2013 academic year.

Mr. Ho is currently a Sustainable Energy Fellow at the Natural Resources Defense Council (NRDC) in Chicago where his research focuses on methods for accelerating the Midwest’s clean energy economy. He has worked on climate and energy issues for NRDC in Beijing, the California Air Resources Board, and the California Environmental Protection Agency as well as water quality and aquatic resource protection in northern California and his home state of Texas.

Mr. Ho is a graduate of Stanford Law School and the Yale School of Forestry and Environmental Studies; he holds a BA in History from the University of Texas at Austin.

YCELP: What initially drew you to environmental law and policy?

Bruce Ho: I have been interested in the environment and the outdoors since I was child, but I never saw this area as a career path – much less the passion that it has become for me – until my last semester in college when I enrolled, on a whim, in a class called Political Ecology. That course, and the wonderful professor who taught it – Professor Diana Davis, who is now at UC Davis – challenged me to think about how humans interact with our world and inspired me to pursue a new direction. In fact, I became so engaged that Professor Davis encouraged me to apply to graduate school, which ultimately led me to the Yale School of Forestry and Environmental Studies (FE&S). I owe her more than anybody for leading me to this path.

YCELP: You've spent time at the California Air Resources Board and the California Environmental Protection Agency as well as NRDC's Beijing and Chicago offices; given the geographic scope of your work, what do you see as some of the most pressing issues?

Bruce Ho: I also spent a summer working on groundwater in Texas, three years in California wine country at the state’s water quality agency, two years on the East Coast when I was a graduate student at FE&S, and some time in Europe as a law student participating in climate meetings, so I’ve been all over! Perhaps the most important thing that I’ve learned in my travels is that there is interesting and challenging environmental work to be done no matter where you are on all kinds of different issues. In the last few years, though, I have increasingly focused on energy and climate change, and I’d be hard pressed right now to point to anything more important than accelerating the movement toward cleaner and more efficient sources of energy – everywhere.

YCELP: What policy issues are you focused on right now?

Bruce Ho: Currently, I am working primarily on energy efficiency in the Midwest and the challenge of aligning the financial interests of utilities, which under traditional regulatory models profit by selling more electricity, with those of ratepayers and society more broadly, which benefit by avoiding the cost and pollution of expensive new power plants and reducing reliance on outdated, dirty old ones. In addition to my work on energy efficiency, which is by far the cheapest, cleanest, and fastest to deploy energy resource available, I am also working on electricity transmission planning and policies to accelerate the deployment of electric vehicles.

YCELP: What projects are you planning to work on during your time at Yale?

Bruce Ho: My project portfolio is still evolving, but as a fellow next year at YCELP and Yale Law School, one of my chief tasks will be to help instruct students in Yale’s Environmental Protection Clinic as they work on a variety of interesting and cutting-edge legal and policy issues. I also hope to help build the energy law and policy offerings available to graduate students and to continue working on some of the issues that I have been tackling at NRDC, such as figuring out ways to integrate increasing amounts of efficient and renewable energy onto the electric grid.

YCELP: Any environmental law & policy book recommendations?

Bruce Ho: I recently read Nature’s Metropolis by William Cronon, and I highly recommend this book to anyone interested in urban development or the growth of the United States and changes in our environment more broadly. It’s not an environmental policy book per se, but is a fascinating exploration of how the City of Chicago developed during the 19th century in concert with – and as a direct result of – the development and exploitation of its natural resource hinterlands. For anyone frustrated by the state of the global climate negotiations, I also recommend Scott Barrett’s Environment and Statecraft, which won’t necessarily make you more hopeful about the future, but does offer helpful insights that explain why these issues are so difficult to resolve and provides some thought-provoking recommendations on the pathways forward.

Posted in: Energy & Climate
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Yale, Columbia Partner with AIEES on Air Quality Initiative

By Guest Author, By Angel Hsu, Project Manager, Environmental Performance Index

Air pollution is a critical concern for both human health and ecosystems and has become a high-priority environmental issue. Concentrations of air pollutants, such as particulate matter (PM), ozone, and toxic chemicals (mercury, persistent organic pollutants, and lead), are contributing to increased rates of asthma, lung and cardiovascular disease, and cancer. The World Health Organization estimatesthat in 2004, slightly less than one million disability-adjusted life years were lost due to outdoor air pollution.

Policy interventions, such as the Clean Air Act in the United States and the Clean Air Directive in Europe, have helped, but in other parts of the world (Asia in particular), air pollution is becoming an increasingly severe problem due to rapid industrial and urban growth.

Policymakers and governments need timely, accurate information to develop and implement air pollution abatement and control policies, but existing datasets for air pollutant emissions are either incomplete or incomparable among countries and in a global context. This lack of comparability is largely due to the variation in air quality monitoring systems between countries, which often produce fundamentally dissimilar data. Some countries do not have adequate monitoring stations or networks to produce representative data samples. In other cases, countries may lack the technical capacity to measure some critical air pollutants, which results in data gaps and leaves policymakers unable to develop relevant global indicators and indices.

One way scientists have tried to address such shortcomings is by using models to estimate emission concentrations, predict future growth, and simulate transport of pollutants across national boundaries. At the most fundamental level these models are based on algorithms -- not ambient empirical data – which results in some inherent degree of uncertainty. Previous editions of the Environmental Performance Index (EPI)have relied on a combination of reported air quality statistics from international organizations, such as the World Bank, and some modeled data for outdoor air pollution indicators, but the 2012 EPI abandoned both sources and opted instead to use a estimation of fine particulate matter concentrations (PM 2.5)derived from the MODISsatellite. While not perfect, these country-level PM 2.5 estimations were consistently calculated for each country, providing a basis for comparing long-term average exposures to a pollutant that is known to have acute human health effects.

To address these persistent data challenges in global air quality, the Yale Center for Environmental Law and Policy (YCELP) and the Center for International Earth Science Information Network (CIESIN) at Columbia University, are teaming up with the Asian Institute for Energy and Environmental Sustainability (AIEES) to launch a new initiative, “Towards a next generation of air quality monitoring.”

The resulting report will include a series of background papers that will each focus on a critical pollutant (i.e. ozone) or group of pollutants (i.e. persistent organic pollutants or POPs), as well as a policy blueprint with recommendations for policymakers on investments and improvements in air quality monitoring, data, and indicators. The report also aims to bring the scientific and policy communities together to provide clear direction for both groups. First, for scientists, it will provide guidance on short-term actions related to monitoring and modeling as well as longer-term challenges. Secondly, for decisionmakers, the report will provide targeted activities at different levels – regional, national, global – also divided into short- and longer-term categories.

The project launched in May, and AIEES will host a workshop in Seoul, South Korea, in October that will convene scientists and policymakers to review the draft report, which will be released in early 2013.

Posted in: Environmental Performance Measurement
Friday, June 01, 2012
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Climate Change Justice

By Guest Author, By Halley Epstein, Yale Law School ‘14

Halley Epstein attended the recent Conference on Climate Change Justice at the University of Chicago. She’s summarized some of the highlights in the post below.

A deep debate exists among academics and policymakers about what constitutes climate change justice, and the failures of various international climate change summits – each convened to draft climate treaties with teeth – perhaps most acutely reflect the discord among power players, including the U.S., China, and India.

In their 2010 book Climate Change Justice, Eric Posner and David Weisbach argue for a climate treaty requiring nations to limit greenhouse gas emissions without addressing any issues not immediately connected to that task. Justice, whether distributive or corrective, should not guide the negotiations for a climate change treaty because the cooperation of all nations – both rich and poor, industrialized and developing – is required, and each nation holds conflicting views of the role justice should play. Posner and Weisbach’s central assertion is that a climate treaty must instead satisfy International Paretianism – it must make all nations involved better off (but could be satisfied if it makes at least one nation better off and no nation worse off). This, they contend, is a feasibility principle, not an ethical principle.

The recent Conference on Climate Change Justice, sponsored by the Institute for Law and Economics and the Chicago Journal of International Law, gave scholars an opportunity to respond to this idea while offering their own. Many conference discussions dealt with ethical questions of distributive and corrective justice, as well as whether moral and ethical considerations might actually alter nations’ views of their climate obligations.

I left the conference convinced that countries have been blinded by their pursuit of policy victories rather than reductions in greenhouse-gas emissions. Some highlights from the event follow.

Conflating a Climate Treaty with Distributive Justice

Posner and Weisbach assert that a treaty to reduce greenhouse gas emissions on a global scale should not involve the redistribution of wealth from rich to poor countries. Most conference participants seemed to agree that promoting all global goals through a climate treaty alone is unreasonable. University of Chicago Professor Martha Nussbaum cautioned against bracketing off distributive goals from a climate treaty entirely as there are opportunities to discover causal links and “fertile intervention points,” such as increasing the participation of women in matters of governance and promoting environmental policies and goals in countries such as India and Nepal.

As Posner and Weisbach suggest, sustaining ethical claims that a climate change treaty must redistribute wealth or that most abatement measures must occur in rich countries is difficult, but some presenters distinguished between seeking distributive justice through mitigation versus adaptation. University of Oxford Professor Henry Shue said it would be irrational for countries lacking the financial resources to deal with their own adaptation needs to make sacrifices for global climate change mitigation without an agreement from wealthier nations to help them with adaptation. Such an agreement, Shue said, could make up for the fact that poorer nations constrain development to some extent by restraining emissions, and whatever the treaty or agreement nations settle on for reducing emissions, distributive effects – whether from a moral or feasibility standpoint – must be part of the talks.[1]

Posner and Weisbach approach International Paretianism as an empirical principle with the assumption that no nation or state will agree to a treaty that leaves it worse off. But this does not address Shue’s concern about individuals. The poorest individuals lack political capital (as may their governments at the international negotiating table). So a treaty presumably could make a country better off, on the whole, while worsening conditions for its poorest people.

Corrective Justice: Who Pays? Do Historical Emissions Matter?

Posner and Weisbach do not believe historic emissions can or should be included in a climate treaty, but Georgia Institute of Technology Professor Paul Baer argued that the assumption that polluters should be unaccountable for cross-border damages is itself unsupportable. One of his major problems with the authors’ view is that they assume externalization of greenhouse-gas-emissions costs is a legitimate status quo.

Many conference presenters discussed the idea of fairness, which represents another feasibility constraint to forming a treaty that works for developed and developing nations alike. While some developing nations view historical emissions as a necessary calculation in determining nations’ obligations, nations that would shoulder responsibility for historic contributions reject the concept of accountability as justice, at least in this manner.

Lukas Meyer, a professor at the University of Graz, Austria, said compensating countries with cash payments for historical contributions would be difficult to justify, distinguishing that type of distribution from distributive justice – basing the latter on evening out undeserved benefits or harms. Nussbaum pointed out that applying corrective justice turns into the blame game with a lot of jockeying for a less blameful (or blameless) position rather than cooperation for the sake of actually reducing greenhouse-gas emissions. I agree with both speakers, and think their comments reflect feasibility constraints and political realities. Ideally, though, rich and industrialized countries that have contributed to historical emissions and laid the path for the world’s current emissions trajectory should recognize the effect of their actions.

Posner and Weisbach criticize the notion of collective responsibility and point out that many of the people living today in industrialized countries are not actually the ones responsible for climate change (though they acknowledge these people have benefited from the emissions of their predecessors in, say, the U.S.). Past emissions, they say, will be largely moot since developing nations, namely China, India, and Brazil, will catch up to the U.S.[2]

Equal Future Shares

University of Chicago Professor Raymond Pierrehumbert discussed the equal future shares theory, which disregards historical carbon emissions and divides up the remaining carbon commons equally per capita (based on limits). Using this method he calculates the fair share of remaining carbon commons at 70 tonnes per person. What does this mean for Americans and the Chinese, for example? At current rates, North Americans would need to stop emitting carbon in 13 years while the Chinese could continue emitting for 56 years. If historical usage is factored in, North Americans used up their fair share in 1970; the Chinese will use up their fair share in 2040. Hopefully, we will have a climate treaty well before 2040 and countries will collectively have initiated significant steps to reduce emissions by that time.

Equal distribution of emissions allowances in an international system would be arbitrary, said Tel Aviv University Law Professor Yoram Margalioth, and would further assume common ownership. That, Margalioth argued, is an assumption we do not apply to most other goods; for example, countries with valuable mineral deposits are not required to divide profits among other nations. Posner and Weisbach also criticized this assumption: “When governments close commons, they do not . . . distribute shares of it to citizens on a per capita basis.”[3] Climate change affects nations in different ways, so it is unclear how distributing emissions allowances on a per-capita basis would achieve justice if countries that would benefit and countries that would suffer greatly from climate change received the same allowances.

Realism or Pessimism: Some Predictions of the Way Forward for a Climate Treaty

The conference presenters expressed a range of ideas for what the future may hold for an international climate treaty:

     -Any international agreements may simply follow what nations are already doing to reduce GHG emissions.

     -For an effective international climate treaty that addresses mitigation, the world needs the buy-in of the U.S., China, India, and Brazil.

     -The U.S. should have been a first actor, but arguably has already positioned itself to be at best a second actor.[4]

     -The “common but differentiated responsibilities” outlined at Rio in 1992 and solidified in Berlin in 1997 simply will no longer work. Harvard Professor Robert Stavins said this “dichotomous distinction” made progress virtually impossible in later international   negotiations. At a minimum, Stavins believes the Durban Platform for Enhanced Action breaks with the Berlin Mandate because it is a mandate to adopt by 2015 a new legal framework to include all key countries for implementation in 2020; this opens up negotiations to outside-of-the-box thinking.

     -If countries continue to pursue cap-and-trade systems, harmonizing the systems in advance will minimize or avoid political discord about features of such systems, such as whether a safety valve should be included. For example, the EU does not want a safety valve provision while any U.S. system would likely include that “escape hatch,” so reconciling these positions will be necessary to achieve international coordination.

More information about the conference, including a list of participants and links to paper drafts, is available online on the conference website.


The debate over rich and poor countries’ obligations, and whether they should bear different responsibilities, continued at U.N. climate talks held May 2012 in Bonn, Germany. The gridlock does not bode well for reaching an agreement under the Durban Platform at talks in Qatar later in 2012.

[2] In fact, China surpassed the U.S. in 2011 as the largest emitter of greenhouse gases. While worldwide emissions increased 3.2%, China’s emissions increased 9.3%, according to the International Energy Agency.

[3] Eric Posner & David Weisbach, Climate Change Justice 136 (2010).

[4] Posner and Weisbach suggest in their book that first actors could be given preferential claims to surpluses generated by mitigation activities (in the form of harms avoided and so forth) to encourage countries to take early, strong stances when confronted with international issues, avoiding stand-offs.

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