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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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