Before we all explode in wrath and despair over the Copenhagen conference's failure to pursue a legally binding climate agreement, let's pause to remember that a legally binding agreement never was possible. There are two reasons—the United States Senate and China.
The 1997 Kyoto Protocol was a legally binding treaty to limit the emissions of greenhouse gases, but the United States never ratified it and China, as a developing country, was not subject to its limits. The Obama administration cannot get a Kyoto-style treaty though the Senate. As for China, it has repeatedly made clear that it will not accept any limit on its emissions that might crimp the rapid growth of its economy.
Kyoto was essentially a European idea, and it is in Europe that the support for a successor treaty has been strongest. Kyoto and the American reaction to it illustrate different concepts of law, The Europeans, after more than a half a century of highly successful experience with the European Union and its predecessors, are well accustomed to the idea of aspirational law that sets a goal or standard with the understanding that member states may take some years to climb into compliance. American law has a harder edge, carrying an assumption that it is enforceable immediately on enactment, with consequences for violators. One objection to Kyoto among Americans, and not only in the Bush administration, was that it depended upon little more than moral suasion for enforcement. To Europeans, drawn by the enormous incentives to belong to the European Union, moral suasion suffices. But for an agreement that would affect most of their country's manufacturing industry and much else, American politicians do not find moral suasion nearly good enough.
Anyone watching the current struggles in the Senate to hold the Democrats' 60 votes together for the health care bill will understand the odds against gathering the 67 votes required to ratify a treaty that forces action on emissions. But the Senate might give its blessing to the Copenhagen Accord, the statement that came at the end of the conference, since it's cast in terms of voluntary cooperation and doesn't legally commit anybody to anything. It only sets a direction, like the 1992 Framework Convention on Climate Change. That's why President George H. W. Bush was able to persuade the Senate to ratify it.
The basic flaw in the Kyoto regime was its failure to engage either of the countries that are the world's biggest emitters of greenhouse gases, China and the United States. The great achievement of Copenhagen was to demonstrate that both of them are now taking an active part in the world's efforts to reduce emissions. But as Copenhagen also showed, that isn't likely to be accomplished by a legally binding treaty.
J.W. Anderson is Resources for the Future’s journalist in residence.
