Why Supreme Court’s Action Creates Opportunity on Climate

The U.S. Supreme Court order blocking the Obama administration’s Clean Power Plan may have a silver lining: It provides an opportunity for the U.S. to show other nations it has a flexible, multi-faceted approach to cutting emissions.

Last week, the U.S. Supreme Court blocked implementation of the Obama administration’s plan to cut greenhouse gas emissions. Almost immediately, diplomats around the world began fretting about whether the court’s unprecedented move would also fatally wound the agreement to slow global warming reached last year in Paris.

In fact, the opposite could be true. Troubles with the Clean Power Plan will create an opportunity for the United States to demonstrate how countries can deal with the reality that in every nation it will be difficult to plan precisely the necessary deep reductions in warming pollution. It is in the United States’ acute national interest to show how the system established in Paris can bend and adjust, rather than break, in the face of challenges like the one presented last week by the U.S. Supreme Court.

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There’s no doubt that uncertainty about the Clean Power Plan will make it harder to cut emissions in the United States. But the Obama administration is using a host of tools to cut emissions that will survive even if the Clean Power Plan — whose biggest effects weren’t expected to be felt for years — runs into legal trouble. Those include fuel economy standards, incentives for deploying renewable energy, and many others.

And no matter what happens on the federal level, many states — California, chief among them — are making great strides in reducing carbon emissions and fostering the development of renewable energy.

The U.S. is not the only country that made pledges in Paris that will be hard to meet. India, Indonesia, Canada, Japan and many others made ambitious pledges in Paris. Indeed, if the process created in Paris works fully as expected it must contend with the reality that no country knows with precision exactly what it can do. Not until countries start turning the screws on emissions will they know exactly which policies will actually have the biggest impact.

Paris was a huge success because the diplomatic community finally learned, after two decades of failure, why so many earlier efforts to create international agreements on climate change had failed. The 1997 Kyoto Protocol had little real impact on global emissions. In 2009 a major

Obama is using a host of tools to cut emissions that will survive even if the Clean Power Plan runs into trouble.

conference in Copenhagen, designed to replace the Kyoto Protocol, ended in disarray and acrimony.

That failure opened space for new ideas. The big new idea that paved the road to Paris was giving countries the flexibility to set their own commitments on reducing greenhouse gases. Unlike Kyoto and Copenhagen, where diplomats tried to craft national goals through a centralized United Nations bargaining process, Paris began with nearly every nation pledging on its own what it would contribute.

This new pledge-based system is attractive because it will be less brittle as countries inevitably run into trouble honoring every detail of their plans. Exactly that future was envisioned in Paris when diplomats agreed, alongside the formal accord, on a plan to develop a system for regularly reviewing and assessing those pledges. Creating that system is now the single most important task for climate diplomats. They must create a scheme that works individually — country by country, sector by sector — as well as collectively to take stock of how the world overall is doing.

It is hoped that this process will quickly bring down global emissions and stop warming at 1.5 to 2 degrees Celsius above pre-industrial levels. There’s no serious chance that will happen. But if pledge-and-review works, it will cap the volcano of emissions and sharply reduce the extreme levels of climate change that are in store in the coming century. That’s a big deal. For decades I have been skeptical that climate diplomats would achieve much, but I have been enthusiastic about the Paris process for this reason, above all others.

The problem is that pledge-and-review is a good idea but not yet a reality. The system must be built, and doing that will be impossible within the United Nations legal framework in which the Paris conference was held. All

Not until countries start turning the screws on emissions will they know which policies have the most impact.

big, formal decisions within the UN framework require consensus, and many countries are skittish about creating a formal review system that could scrutinize what they see as their national choices. Countries that want this new pledge-and-review approach to work must demonstrate how the scheme can balance the needed flexibility of national circumstances, while also making countries accountable to each other for good-faith efforts.

Ultimately, every country will need to subject itself to serious peer review. But the countries that created this new system — led by the United States, which has long advocated for a more flexible system along the lines agreed in Paris — can accelerate that process by going first. The U.S. is rightly worried about global warming, but it can’t stop and reverse that process unless other major nations cooperate. The U.S., by itself, is responsible for 12 percent of world emissions.

Troubles with the Clean Power Plan offer an ideal opportunity to show how the process of pledge-and-review can work. That, in turn, will make other countries more comfortable about how this new system can evolve. In updating the world on what’s actually happening within the United States, the government can point to the many other policies that remain in place even if the Clean Power Plan gets stalled — such as the extension of tax incentives for renewable power, which was part of the budget deal reached between the Obama administration and Congress last December.

The Obama administration can also point to the efforts that U.S. companies are making many attempts to reduce greenhouse gas emissions from their own operations — some in response to existing regulations, and many on a volunteer basis in an effort to shape possible future regulation. The fracking industry, for example, is working to cut its emissions of methane, a potent greenhouse gas. And the nuclear industry is exploring ways to make the sector’s zero-emission power more attractive financially.

A convincing show of flexibility by the United States could make it more comfortable for China, the world’s largest emitter, to offer its own update on how it plans to meet its emissions-reduction goals. Many elements of China’s Paris pledge will become easier to implement now that the country’s economy is slowing. But others, such as development of new renewable energy technologies, could become harder. Any system for international cooperation on climate change that is impractical for China and the United States — the world’s top two emitters — is a system that will fail to make much progress on the global problem of climate change.

For years the problem with global warming diplomacy has been that diplomats have focused on the question of whether countries can comply with their commitments. That has made governments conservative about what they promise, so they can be sure to comply. The conventional wisdom that the best agreements would be legally binding made that

The U.S. government can point to many other policies that remain even if the Clean Power Plan gets stalled.

tendency even worse, since countries tend to take their binding international legal commitments particularly seriously.

That affliction is what made the Kyoto Protocol ineffective. Every country that joined the agreement complied with its strictures because the diplomats moved the goal posts to make sure their governments could comply. On paper, the agreement looked perfect — except that the goals were so lax that they delivered compliance by not requiring any extra effort.

Paris will be effective if it does the opposite. It must encourage countries to pledge beyond what they know how to implement — and then make their best efforts to achieve those goals. Thanks to the Supreme Court, the U.S. government now has the opportunity to demonstrate how that is done. Specifically, the U.S. can detail implementation plans that show the effects of losing the Clean Power Plan, and it can outline what future administrations might do if that possibility becomes a reality. This might include a vision for how big new investments in energy research and development — as in the budget that the Obama administration outlined last week — will help cut emissions. The administration might also demonstrate how most of these efforts will survive even if the White House shifts from Democratic to Republican control.

In April, when President Obama likely travels to the United Nations to sign the Paris accord, he should not be defensive about the messy realities of U.S. public policy that the world already knows. Instead, he should explain what will be done going forward and promise that, regardless of what happens with the Clean Power Plan, this country will lead the way in demonstrating how the pledge-and-review system agreed on in Paris can actually work.

Another Perspective: Michael B. Gerrard writes that the Supreme Court’s order on the Clean Power Plan was among the most environmentally harmful decisions the court has ever taken.