The big news out of Beijing today is that President Obama and Chinese President Xi Jinping have reached an agreement on reducing greenhouse gas emissions ("GHG") for both nations. The agreement is likely more significant in form than in substance.
The announcement includes the following targets:
- China has agreed to reach peak carbon emissions by 2030 (or sooner) and aims to have 20% of its power generated by non-fossil fuel sources by the same date.
- The U.S. has agreed to ratchet up its current emission target from 17% below 2005 levels by 2020 to 26-28% below 2005 levels by 2025.
The number crunchers will now begin the task of determining just how rigorous these targets are for each country and the likely conclusion will be this: neither target is drastically below business-as-usual for either party. In the long run, this agreement alone is unlikely to change the prospect of keeping global temperatures below a 3.6 degree Fahrenheit rise. In the short run, this is a very significant announcement for a number of reasons. This post will highlight three.
First, President Obama is doubling down on EPA’s Clean Power Plan (the “Plan”). A natural reaction in the wake of his party’s recent election drubbing and pronouncements from Congress that the Plan and EPA are enemies number one, would be to flinch. Instead, the President is making a bold gamble. He is betting EPA has the authority to promulgate the Clean Power Plan under § 111(d) of the Clean Air Act and the Rule itself will withstand legal challenge. (Remember, the Rule itself is far from final—the comment period closes on December 1.) The President and his advisors may also be thinking that the more the Rule is relied upon, the more defenses it will have in a legal challenge and the more hesitant a court may be to deconstruct it at a later date.
Next, China is serious about “renewable” sources of energy. Nearly 10% of China’s current energy comes from sources not linked to fossil fuels. That leaves an additional 10% to be gained in roughly 15 years. For the world’s second largest economy, one so heavily dependent on coal, this will be a significant feat. This ramp-up should provide considerable opportunities for clean technology companies in both China and abroad and lead to significant reductions in GHG emissions.
Finally, China and the U.S. agreeing to GHG targets also makes the prospect of a global U.N. deal in Paris much more likely in December, 2015. This bilateral agreement hurdles the “firewall” baked into the original 1992 U.N. Framework Convention on Climate Change (“UNFCCC”) between “Developed” and “Developing” countries that has stalled oh-so-many negotiations. It will be more difficult for other large “Developing” countries like India and Brazil to remain on the sidelines of an agreement now that the contours laid out by the U.S. and China are in place. Make no mistake, much could still go sideways in Paris. Even under the best circumstances, the negotiations will not produce a legally-binding, Kyoto-style agreement (such agreement would need ratification by the U.S. Senate). If Paris produces an agreement, it will take the form of rudimentary international law: an agreement where countries pledge targets for themselves and parties to the agreement, relying upon data provided by the country in question, ensure the targets are met. President Obama can enter into this agreement based solely on his executive authority.
Stay tuned to Law of the Land (and Air and Water) for future updates on both EPA’s Clean Power Plan and other Climate Change related issues.