Tuesday, November 4, 2014
Cinnamon Carlarne, Michael E. Moritz College of Law, The Ohio State University
Delaying mitigation efforts beyond those in place today through 2030 is estimated to substantially increase the difficulty of the transition to low longer-term emissions levels and narrow the range of options consistent with maintaining temperature change below 2 °C relative to pre-industrial levels (high confidence).
Climate change is a massive environmental problem. However, it is much more than that. It is a security problem, a human rights problem, a trade problem, an economic development problem, a public health problem, and, at its very roots, an energy problem. We delay mitigation efforts in significant part because mitigating climate change requires making fundamental changes to our energy system, and our energy system rests at the center of the dominant economic model. Change is hard.
Yet, the only way to avoid delaying mitigation indefinitely is to be as frank as possible in identifying climate change as sitting at the nexus between energy and environmental law. Mitigating climate change means making changes in the energy sector. In the United States, for example, in 2011, carbon dioxide accounted for 84% of total U.S. greenhouse gas emissions, with 97% of those carbon dioxide emissions attributable to energy use. Accordingly, in the United States, “the most direct way to reduce future climate change is to reduce emissions from the energy sector by using energy more efficiently and switching to lower carbon energy sources.” Although the percentages vary, the relationship between carbon dioxide emissions and energy use sits at the center of efforts to mitigate climate change across developed and developing countries.
Fundamentally, then, efforts to mitigate climate change require reducing greenhouse gas emissions from the energy sector. Yet, traditionally, questions of energy and environmental law have been addressed in separate forums using largely distinct systems of law and policy. As a result, the intersections between environmental law and energy law and policy have been approached at the margins. At the domestic level, for example, environmental regulations influence extraction, transportation, generation, and disposal actions to significantly different degrees depending on the energy source (e.g., more for coal, less for gas, and even less for oil). Yet, most sectors of the energy industry continue to receive significant environmental exemptions. This fragmentation–both within the energy field and between the energy and environmental fields–means that energy decisions continue to be made largely in isolation from larger questions about environmental issues, including climate change.
Similarly, at the international level, international agreements such as the Montreal Protocol influence production methods and incentivize energy efficiency. On occasion, the decisions of key institutions such as the WTO address tensions between trade, energy, and environmental concerns. Here, as in the domestic context, however, the decisions are piecemeal, and there is no substantive and meaningful engagement between key international energy, environmental, and economic institutions about ways in which to coordinate energy decisions with overarching global climate goals.
The disconnect between climate change and energy is really a disconnect between merely identifying the problem of climate change and actually beginning to experiment with pathways towards mitigating climate change. As the United States’ Third National Climate Assessment concludes, making inroads into addressing climate change “require[s] substantial decarbonization of the global economy by the end of this century, implying a fundamental transformation of the global energy system.” Almost across the board, however, the short-term costs of efforts to decarbonize are seen as dwarfing the perceived long-term benefits, as significant as they might be. Yet, without changes to domestic energy policies worldwide, global efforts to mitigate climate change will fail. As one of the co-chairs for Working Group II of the IPCC Fifth Assessment Report recently posited, we will instead have to refocus our energies on managing and, ultimately, surviving climate change.
However, to accept massive climate change as inevitable or to allow the costs of responding to climate change to accumulate exponentially would be to the detriment of all. In launching the AR5, IPCC chair, Rajendra Pachauri, cautioned against this approach, warning that "[t]he high speed mitigation train needs to leave the station very soon, and all of global society will have to get on board.” Critically, all of the mitigation pathways considered in the AR5 involve upscaling of low-carbon energy. In essence, we must begin mitigating climate change immediately and doing so means shifting our energy infrastructure quickly and dramatically.
Yet even the most advanced economies are still in the early stages of thinking through how to achieve the types of energy shifts that the IPCC and the U.S. Third National Climate Assessment suggest are necessary to avoid the possibility of increasingly severe climate change impacts. Thus, while it is increasingly clear that significant changes in the energy sector are necessary to curb climate change, it is less clear that any major state or regional players know how to achieve those changes in ways that are technologically, economically, and politically feasible.
However, reform is needed and reform is needed fast. Mitigation cannot be neglected. Having conversations about mitigation means wrestling with our energy options openly and often. The stakes are high and we are at a critical moment in determining our collective future. Confronting the similarly existential crises of nuclear warfare, Albert Camus famously opined:
We have nothing to lose except everything. So let’s go ahead. This is the wager of our generation. If we are to fail, it is better, in any case, to have stood on the side of those who choose life than on the side of those who are destroying. 
Climate change is the wager of our generation. We can choose to do nothing and face an uncertain future or we can choose to do something and begin a deliberate revolution—a revolution based on optimism and the heroic assumption that we are capable of dealing with the big issues, even when those big issues involve energy and fundamentally changing our dominant economic model.
 Intergovernmental Panel on Climate Change, Climate Change 2014: Mitigation of Climate Change: Summary for Policymakers 13-14 (2014)
The section continues:
Cost-effective mitigation scenarios that make it at least as likely as not that temperature change will remain below 2 C relative to pre-industrial levels (2100 concentrations between about 450 and 500 ppm CO2eq) are typically characterized by annual GHG emissions in 2030 of roughly between 30 GtCO2eq and 50 GtCO2eq. Scenarios with annual GHG emissions above 55 GtCO2eq in 2030 are characterized by substantially higher rates of emissions reductions from 2030 to 2050; much more rapid scale-up of low-carbon energy over this period; a larger reliance on CDR technologies in the long-term; and higher transitional and long-term economic impacts. Due to these increased mitigation challenges, many models with annual 2030 GHG emissions higher than 55 GtCO2eq could not produce scenarios reaching atmospheric concentration levels that make it as likely as not that temperature change will remain below 2 C relative to pre-industrial levels.
 Id. at 64.
 Third National Climate Assessment, supra note 4, at 64.
 See, e.g., Uri Fiedman & Svati Kristen Narula, The UN’s New Focus: Surviving, Not Stopping, Climate Change, Atlantic, Apr. 1, 2014.
 As the Third Assessment emphasizes:
The principal types of national actions that could effect such changes include putting a price on emissions, setting regulations and standards for activities that cause emissions, changing subsidy programs, and direct federal expenditures. Market-based approaches include cap-and-trade programs that establish markets for trading emissions permits, analogous to the Clean Air Act provisions for sulfur dioxide reductions. None of these price-based measures has been implemented at the national level in the U.S.
Third National Climate Assessment, supra note 4, at 64 (emphasis added).
 Albert Camus, Resistance, Rebellion, and Death: Essays 246 (1960).
 See Cinnamon Carlarne, Delinking International Environmental Law and Climate Change, _ Mich. J. Envtl. & Admin. L. _ (forthcoming 2015).