High Hopes

Back in January, when Michael B. Gerrard joined the Law School faculty as the head of its Center for Climate Change Law, the veteran environmental lawyer realized he was diving headfirst into a maelstrom of extremely complicated and important legal problems. In truth, that was the point. “What I was learning about climate change was quite alarming,” he says. “I felt an obligation to devote myself to the issue, to the extent I could.” Fast forward six months, and Gerrard is working at the helm of the center during what is perhaps the most interesting time in history to hold such a position.

Gerrard recently sat down with climate change specialist and award-winning New Yorker writer Elizabeth Kolbert for a conversation on some important international developments in the field. He discusses the prospects for a meaningful international agreement on climate change and previews the international climate negotiations that will be held in Copenhagen in December. Whether those negotiations can produce a treaty, he says, may well depend on whether the United States can enact legislation this year creating a domestic “cap-and-trade” system—whereby the government sets an overall limit on greenhouse gas emissions and then divvies up permits among polluters. (Those who exceed their permits have to purchase more, while those who come in under their allowances can sell their credits.) Kolbert and Gerrard also talk about what American legislators can learn from European nations that have experimented with cap-and-trade systems, the utility of cutting-edge environmental lawsuits
brought against multinational corporations in foreign courts, and the extent to
which developed nations might need to subsidize climate change efforts in less prosperous countries to bring about global change. An edited version of their conversation follows.

Elizabeth Kolbert: Nationally and internationally, this is obviously a very big year going into international climate talks. I’m sure this is an issue that you’ve thought about. Going into Copenhagen, what do you think an effective treaty might look like?

Michael Gerrard: I have talked about that some in the class I teach on climate change law. The central issue in any international climate agreement is the role of the rapidly developing countries that are responsible for almost all of the recent growth in greenhouse gas emissions—primarily China, followed by India, and then several others. They consistently say it’s unfair and unacceptable to require them to limit their emissions and thus slow their peoples’ climb out of deep poverty when the Western countries grew rich as a result of dumping huge quantities of greenhouse gases into the atmosphere without restraint—gases that will stay there for decades or centuries. Finding a solution that both the developed and the developing world can live with is devilishly difficult.

There are other realities that make finding a solution terrifically challenging. I’ll name three: First, much of the world’s emissions come from deforestation in Indonesia and Brazil, something that is not easily regulated. Second, the production of livestock is another major contributor to climate change, but most people like to eat meat. Third, in many countries, the most abundant, most reliable, and least expensive source of energy is coal, which is also just about the dirtiest. An international agreement will probably deal with deforestation, will almost certainly dodge the livestock issue, and will come up with complicated means to reduce the incentives to burn coal—though under any scenario, a great deal of coal will continue to be used for decades, at least.

Any plausible solution will clearly involve a massive transfer of technology from the West to the East.

EK: And one of the things there seems to be a lot of resistance to in this country is the notion that we’re going to have to do technology transfer, and even cash transfers—that we can’t expect the developing world to just suddenly adopt the most advanced energy technologies without help from the developed world. The Europeans seem to be on board for that idea, while Americans seem to consistently resist it. But it seems virtually impossible to get an international treaty without that. How can we convince Americans that this is in our best interest?

MG: I don’t see any alternatives to a massive transfer of technology and resources. But I think the central thought of an international cap-and-trade system is that you find the lowest-cost  methods of achieving greenhouse gas reduction. Those are typically in the developing world. So, ultimately, it will be cheaper for U.S. companies to devote a lot of resources in China rather than in the U.S. Certainly in the long-term, the costs are far lower.

EK: A lot of people think international talks aren’t going to go anywhere without something happening on a domestic level in the U.S. What seems to be on the
horizon there? 

MG: There is now some hope that there will be a piece of U.S. legislation by the end of 2009, before Copenhagen. I wouldn’t say there’s much optimism, but there’s hope. And people are working toward that direction. But I agree with you that if there isn’t [any U.S. legislation by that time], then Copenhagen isn’t going to be definitive.

EK: Let’s talk about what you think an effective piece of domestic legislation would look like.

MG: We clearly seem to be headed in the direction of cap and trade. There just isn’t the political support for a carbon tax. And I myself have some doubts about a carbon tax, notwithstanding how much it’s extolled by the economists. I don’t have confidence in the elasticity assumptions that go into seeing it as a be-all and end-all.

EK: What do you mean by that?

MG: That if you increase the price on carbon, it’s very unclear how much behavioral change that will result in—how much that will drive down energy use.

EK: But, of course, people argue that a cap-and-trade system will be gamed to death. And certainly we’re seeing indications of people trying to game it before it even exists.

MG: That’s certainly true. But I don’t know that it’s that much more vulnerable to being gamed than a carbon tax. How many thousands of additional pages of the Internal Revenue Code will we need? The exact same political forces that will seek exemptions and waivers from cap and trade will also be working the carbon tax.

EK: So if you were advising Barack Obama right now [on climate change], what would you tell him?

MG: I think that he’s off to an extraordinary start on this issue. And I would continue to press for action in 2009.

EK: So you do think that 2009 is his opportunity [for legislation]?

MG: I don’t know that it’s the only opportunity, but I think that there’s an opportunity for action in 2009. And the problem is of such urgency that it’s very much worth the effort. The prospects this year in the House are much better than in the Senate.

EK: The Europeans have set up a cap-and-trade system under the Kyoto Protocol. It’s been fairly widely considered a failure. What can we learn from that experience?

MG: I think it got off to a poor start. But I think it’s improving now.

EK: What lessons are there for the design of a U.S. system?

MG: Stand fast against demands for a lot of free [permit] allowances. And, of course, that’s a battle that’s playing out on a micro scale in New York with RGGI [the Regional Greenhouse Gas Initiative, pronounced “Reggie”].

EK: That’s right. That’s a very fascinating development. Could you talk a little bit about RGGI, and what we can learn from it?

MG: RGGI is an effort by 10 Northeastern and Mid-Atlantic states to impose a cap on carbon dioxide emissions from power plants, and to require the plants to pay for the privilege of emitting each ton of CO2. It’s the first mandatory cap-and-trade system
for carbon dioxide in the United States, and it is almost a proxy war for what is about to happen nationally. Companies that would be hurt [by having to pay to emit]
are trying to do a political end run around the overall system. And the first signs are
not encouraging.

For instance, New York State adopted regulations after a very long formal rulemaking process to say that virtually 100 percent of the [permit] allowances—that is, the ability to emit CO2—must be purchased. After those regulations were adopted, the independent power industry went to Governor Paterson and apparently persuaded him that some of their members should receive free allowances because they have long-term contracts to sell all of their electricity at a fixed price, and therefore can’t pass the cost on to their customers.

EK: That seems to really get to the heart of the matter, which is: You can write the best regulations that you want, but if the political system is then going to do an end run around them, how are we ever going to effectively deal with this problem?

MG: Exactly. And if the theory is that we’ll have regulation . . . provided it’s
painless . . . we’ll never get anywhere.

EK: And that gets us to the question that looks like it’s going to be a huge fight: If we’re going to do a cap-and-trade system, do we auction off the permits, or do we give them away? Obama has proposed a 100 percent auction, but there seems to be a lot of concern that that’s going to just get chipped away.

MG: Right. And, of course, that was the problem with the European system. They gave away so many of the allowances.

EK: And the cost of permits was nothing, virtually.

MG: It became a wonderful windfall for the utilities with the free allowances, and they could sell them.

EK: Considering New York’s experience with RGGI, and watching what’s happening on Capitol Hill, what do you see as the prospects for effective federal legislation?

MG: I think that we will have federal legislation. I think that it will not be as strong as many of us had hoped, but it will be a foundation. One of the real possibilities is that Congress will do what the California legislature did and what the New Jersey legislature did: That is to just punt many of the important decisions to the administration.

EK: But maybe that would be good.

MG: Yes, if you have an administration that is strong and resolute.

EK: One of the points that people sometimes make is that this is our only shot. The scientific community would say time is very, very short, or maybe gone. And one of the points the political community might make is that you don’t get another shot at this legislation. You pass this legislation, and you’re going to live with it for a long time. Do you agree with that? I mean, that puts a lot of weight on what happens in the next couple of years. 

MG: Yes—well, certainly on the scientific part of it; I’m not  going to argue about that. I mean, you know better than I. It’s fundamentally frightening. But we have had incrementalism in energy legislation. There were important energy bills passed in 2005 and 2007, and the stimulus package of 2009. And we may have another one later this year or in 2010. Each of them adds to renewables and efficiency and so forth. So I don’t necessarily go along with the thought that this is our only shot at it. But it’s our best shot, and there certainly is a concern that once Congress passes a greenhouse gas law, it won’t want to look at it again for several years. It will want to grapple with health care and lots of other problems. So it’s certainly worth every effort to get as strong a law as you can now.

EK: This goes beyond the scope of law into national psychology, but why has it taken us so long—and we’re still not there—to grapple with this problem? You’ve been involved in a lot of environmental issues. Why has this one taken so long? Or is this a timetable that all environmental legislation seems to follow?

MG: It has been a long time since there was a sense of national shared sacrifice. The aura of World War II is a very long time ago, and the psychology of the nation has been that we can have it all. And most of the major federal environmental statutes fell hot on the heels of environmental disasters. Exxon Valdez led to the Oil Pollution Act. The Torrey Canyon and Santa Barbara disasters led to the Clean Water Act. Love Canal led to Superfund. And although there are many climate disasters, they haven’t been noticed to the extent they should be. And the causation isn’t as stark.

There’s also a disturbingly lingering respectability to climate skepticism. The Wall Street Journal editorial page has much more influence than the Journal of Geophysical Research. And that has provided excuses for members of Congress not to act differently. I still hear very sophisticated business people ask whether sunspots are behind it all.

EK: Do you want to put that one to rest in the pages of this magazine?

MG: [Laughs] That’s not my discipline. But all the scientists I have talked to say that they have looked at all the natural causes, and none of them can account for the trends in temperature we’ve been seeing. Columbia University has some of the world’s leading scientists studying climate, and they are utterly uniform in saying that humans are causing catastrophic climate change.

EK: Getting back to your point—and I think that it’s such a crucial point; many politicians have made it to me, as well—that legislation usually follows a crisis. The problem here is that once we get to a crisis, we can’t rectify it, and also that we’re ensuring a crisis for future generations. So it does seem to be a situation that almost defies our conventional politics.

MG: But it is very encouraging to see so many young people take this up as the cause of their generation. When I was 20, the Vietnam War was the cause of our generation, and many of us looked at everything the government did through that lens. I think we are increasingly seeing today’s young people look at government and private action through the lens of climate change, which is encouraging. The mission of the Center for Climate Change Law is to develop legal tools to fight global warming and to train the next generation of leaders in their use. The intense interest of so many extraordinarily bright students at Columbia bodes well for fulfilling this mission. The challenges are great, but these young people seem up to it.

EK: Do you see any creative approaches out there [to addressing this issue]? I mean, you’ve done a lot of litigation in your time.

MG: One thing that is now bubbling up to the surface is there are efforts—or there will soon be efforts; I hear people talking about it—to bring lawsuits in the courts of countries that are especially affected by climate change. If somebody brings a lawsuit in the courts of Bangladesh against big emitters and gets a decision there, can you take that judgment and enforce it abroad?

EK: This would be a suit against a big multinational?

MG: Right. Now, the first question is: Could you enforce [such a judgment] against
the assets of the multinational in that country, which raises all kinds of political
issues in that country—and especially in countries that don’t have a tradition of an
independent judiciary.

I have real doubts about the effectiveness of tort litigation as a strategy to fight climate change, especially given the potentially enormous numbers of defendants, as well as plaintiffs; the impossibility of linking a particular plaintiff’s injury to a particular defendant’s actions; and the central role of government policy in shaping private companies’ energy practices. But the climate change problem is so large that every imaginable legal theory will be thrown at it, and some of them might stick.

EK: Considering some of the litigation you’ve been involved in—some of the really major landmark cases of the last 30 years or so—that experience must inform you. Looking forward at climate change, what lessons did you learn that might be brought to bear on this issue?

MG: That enormous patience is required . . . because some of these cases take a decade. But they are also effective ways to uncover and marshal evidence and to bring pressure to bear on several different fronts. So it’s an important element of the mix. But in none of the big cases that I’ve been involved with was it the law alone that did the trick. It’s always the law in combination with political, economic, and social forces.

EK: You must have gotten a lot of responses from people about [deciding to lead the Center for Climate Change Law]. Do you feel that people in the legal community, in the world, are increasingly concerned about climate change?

MG: Oh, yes. I received very positive reactions. People felt that after doing one thing [practicing environmental law in the private sector] for 30 years, it’s interesting to do something else, and also that my new venture is quite important. I’m also seeing wonderful student reaction. When I first signed up to teach the course on climate change, the registrar’s office suggested putting me in a classroom that would accommodate 20 or 30 people. I said that I might have more than that. So they gave me a classroom that accommodates 60 people, and I have 60 students—45 law students and 15 from other graduate schools at the University. These students are eager to become involved in the work of the center, which makes me optimistic that we will achieve both our goals of developing new legal tools and training future leaders.

EK: Look five years down the road: What do you think/hope will have occurred
by 2014?

MG: I hope that we will be well into the implementation of a federal regulatory program and that the country will be well on the way toward transforming its energy economy to one that’s far more efficient and uses less fossil fuels. And I’m also hopeful that this energy revolution will have carried over to China and India and other rapidly developing countries.

Photographed by Glenn Glasser