Questions of law and regulation have featured in the discussion of climate change ever since policy makers declared it a challenge requiring a societal response. Both nationally and internationally, however, the conversation has usually been dominated by concerns about the likely impacts of climate change, the availability of technological solutions and their economic cost, and questions of fairness and responsibility; legal norms and principles have generally been left to the domain of lawyers and their arcane forms of rule-based discourse.

This article explores the role of the International Civil Aviation Organization (ICAO) in regulating civil aircraft engine emissions in the age of climate change. The Kyoto Protocol allocates authority for international aviation emissions to ICAO, but the organisation has failed to provide effective regulation over the past fourteen years. This article examines why ICAO was granted such authority, what might account for ICAO’s failure and explores the role of ICAO in the future. It argues that the ICAO should not be the sole regulatory authority for the aviation industry, but that it has an important contribution to make in terms of technical expertise and auditing capacity.

This article applies the results of semi-structured qualitative interviews and twelve Clean Development Mechanism (CDM) case studies to determine whether the designation of a materiality threshold at the UNFCCC CDM Executive Board level would, with respect to proposed Brazilian CDM projects, be likely to achieve such materiality standard’s stated objectives of (a) streamlined CDM procedures that reduce transactions costs, (b) enhanced objectivity of variable designated operational entity (DOE) judgments, and (c) enhanced consistency. It finds that Brazil’s overriding objective is to ensure that greenhouse gas emission reductions comprise real reductions encompassing appropriate (i.e., conservative) project methodologies, baselines and additionality in a manner that strictly preserves the CDM’s inherent environmental integrity as an offset mechanism which may have the potential to impede some cost reductions arising from streamlined CDM procedures and other procedural efficiencies sought by proponents of a CDM materiality standard.

Forests play an increasing role in climate change policy. As carbon sinks, they sequester and store massive amounts of CO2. Conversely, deforestation and forest degradation account for up to 20 % of global CO2 emissions. Through REDD-Plus, a global initiative is underway to reduce emissions from deforestation and degradation. This paper provides an overview of forestry offsets within the Kyoto Protocol. It likewise explores and analyzes three central REDD-plus design considerations under review at the UNFCCC 17th Convention of the Parties. These design considerations include: 1) Setting forest carbon reference levels, (2) Administration of REDD-Plus, whether at a national, jurisdictional, or project-based scale, and (3) Optimal funding of REDD-Plus whether through a dedicated fund or market-based mechanism. The paper concludes that these design elements can be structured to significantly reduce C02 emissions from deforestation and degradation. However, the failure of Annex I countries to reduce industrial CO2 emissions may lead to less ambitious targets and therefore undermine the effect of REDD-Plus.

Carbon prices (carbon taxes or the requirement to hold emissions permits) could induce carbon leakage or adverse competitive effects, unless applied to imports and rebated on exports, through “border adjustments”. This article, aimed primarily at those interested in aspects of carbon and climate policy other than international trade law, examines the “GATT-legality” of border adjustments for carbon prices, highlighting legal uncertainties. Border adjustments for carbon taxes may not be allowed under the basic trade rules, especially if applied only to trade with countries not limiting emissions. Carefully designed adjustments for imports (but not exports) might qualify for an exception under GATT Article XX, most likely the environmental exception, but might fail to satisfy the conditions stated in the “chapeau” (headnote). If the cost of emissions permits an emitter purchases from its government is deemed equivalent to a tax, the above conclusions would be applicable to adjustments for the cost of permits. The adjustability for the value of permits received without payment or bought on secondary markets is more uncertain. Uncertainty is compounded by the fact that many important emitters, especially electric power companies, do not themselves export or face competition from imports.

Every once in while, in any debate, new evidence emerges to challenge our thinking. And if the evidence is overwhelming, it can even provoke a turning point in the debate. This is the point that the debate on trade and climate change has reached with the new evidence that Hertwhich, Peters, Caldeira and Davis have put on the table on emissions consumed. Looking at the world through an emissions consumption prism instead of the Kyoto Protocol’s prism of “emissions production,” they discover that the developed world has actually increased its emissions in the past couple of decades instead of reducing them. Their work demonstrates that the reductions called for by the Kyoto Protocol have found themselves negated by the emissions that the developed world has imported from other corners of the globe. In other words, that the world may have engaged in no more than a process of emissions offshoring. This article seeks to bring this evidence to the attention of trade negotiators, and to contextualize these findings in the realm of the on-going trade and climate change debate. It reaches the conclusion that high level dialogue between trade, environment and climate change ministers is urgent since the integration of international trade into unilateral climate mitigation action is likely to become reality.

Climate engineering – understood as the deliberate, large-scale and technology-based manipulation of the environment to counteract anthropogenic climate change – is currently under discussion as a promising option for policy makers to combat climate change. Most climate engineering techniques are in a status nascendi, i.e., their effectiveness has yet to be proven. Ocean fertilization, however, constitutes a special case of a climate engineering technology because its effects have been relatively well researched. Additionally, ocean fertilization has become subject to regulation under public international law under the London Convention and London Protocol. This article will assess to what extent legal concepts discussed, developed and adopted in the regulatory process under the London Convention and Protocol can provide useful ideas and concepts – and possibly even offer models – for the future regulation of other climate engineering technologies. After an introduction (I.), existing and emerging rules under the international law of the sea that govern ocean fertilization will be outlined (II.). Subsequently, to justify our paradigmatic considerations, similarities between ocean fertilization and other proposed climate engineering technologies will be identified. Based on this, paradigmatic aspects of the legal concepts and principles developed in the course of the regulation of ocean fertilization under the London Convention and Protocol will be discussed (III.). A summary and outlook complete this article (IV.).

International, European Union, North America

Carbon Trading Law and Practice by Scott D. Deatherage New York: Oxford University Press, 2011, 312 pp., $185.00, paperback. Lawyers generally refer to the carbon trading programs enacted around the world as “cap and trade schemes”, but a recent environmental law textbook more accurately refers to these programs as “hybrid” programs.