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Some Legal Impacts of the Emerging International Climate Change Regime on Energy Prices James E

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Some Legal Impacts of the Emerging International Climate Change Regime on Energy Prices James E Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 2013 Some Legal Impacts of the Emerging International Climate Change Regime on Energy Prices James E. Hickey Jr Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Part of the Law Commons Recommended Citation James E. Hickey Jr, Some Legal Impacts of the Emerging International Climate Change Regime on Energy Prices, 4 Global Bus. L. Rev. 1 (2013) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1213 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. SOME LEGAL IMPACTS OF THE EMERGING INTERNATIONAL CLIMATE CHANGE REGIME ON ENERGY PRICES JAMES E. HICKEY, JR. I. INTRODUCTION. ................................... ........ 1 II. CLIMATE CHANGE AND ENERGY PRICING PREDICATES...............................................2 III. THE ROLE OF THE EMERGING INTERNATIONAL CLIMATE CHANGE REGIME IN FUTURE ENERGY PRICES.......... 2 A. Climate Change, Energy Prices and internationalRegulation. ........... ............. 3 B. The Emerging InternationalClimate Change Regime.................3.........3 C. Some Enduring Principlesfrom the Emerging Climate Change Regime Influencing Energy Prices. .................. ..... 7 1. Limited State Sovereignty over natural resources. ..................... ......... 7 2. The Polluter Pays Principle. .......... ...... 8 3. The Precautionary Principle. ......... ....... 9 4. The Common But Differentiated Responsibilities Principle........ .......... 10 5. The Duty to Cooperate Principle... ....... 11 IV. CONCLUSION. ........................................... 11 I. INTRODUCTION. From the beginning of scientific assessment of climate change in the late 1970's to the most recent conference of the parties (COP) to the Kyoto Protocol in Doha in 2012, the international community has been attempting to establish a workable legal regime to deal with climate change. The purpose of this article is to explore some of the legal effects this emerging international climate change regime may have on energy prices in the foreseeable future. Specifically, this article in section II article accepts certain predicates relating to climate change and energy prices. In section III, it lays out briefly the thirty year, largely unsuccessful, history of the attempts to establish an international legal regime to deal with climate change. Section IV argues that despite the lack of success in ' Professor of Law, Maurice A. Deane School of Law, Hofstra University, Hempstead New York. I would like to thank my research assistants, Anna Ovcharenko and Katherine Moran for their valuable help with this article. 1 THE GLOBAL BUSINESS LAW REVIEW [Vol. 4:1 establishing an international legal regime, certain legal principles have been established that will affect energy prices in the foreseeable future. Section V concludes that those legal principles should be taken into account by states, legislators, policy makers, energy companies, advocates, consumers and investors in making energy pricing decisions and energy pricing predictions in the coming decades. II. CLIMATE CHANGE AND ENERGY PRICING PREDICATES. For purposes of this article, certain fundamental assumptions are accepted. First, climate change is occurring by the accumulation of greenhouse gases (GHG) in the atmosphere. Second, since the industrial revolution the activities of human beings in the use of energy resources to do work are a major contributor to greenhouse gases. Third, the production and use of fossil fuels (coal, oil and natural gas) are the primary source of mankind's GHG released into the atmosphere. Fourth, climate change produces and potentially will produce serious and potentially harmful adverse effects on global and local societies, including warming of the planet, sea level rise, changes in ocean temperatures, melting of the polar ice caps and mountain snow packs, melting of permafrost, weird weather events, increase in insects, loss of coastal habitats, changes in agricultural lands and the like. Fifth, for the most part, the costs of climate change occasioned by mankind's production and use of fossil fuel energy resources is not accurately reflected in wholesale or retail energy prices and remain largely external to energy purchasing decisions. Sixth energy and gross domestic product (GDP) are closely linked. For developing countries to develop economically, they must have affordable and reliable sources of energy and for developed countries to maintain their economies they also must have affordable reliable energy sources. Seventh, it is likely that demand for energy overtime will increase and not decrease. Populations are increasing and there are still around a billion people without electricity. New voracious energy demands from the computer and cell phone industry are now robust and still growing. Eighth, energy supply and demand are intimately influenced by price. Finally, law (international and domestic) as well as markets can be expected to address the impact of energy production and use on climate change. III. THE ROLE OF THE EMERGING INTERNATIONAL CLIMATE CHANGE REGIME IN FUTURE ENERGY PRICES. Both domestic climate change-related law and emerging international law affect energy prices. Domestically, of course, states have clean energy and greenhouse gas initiatives that affect energy prices like renewable energy portfolios and feed in tariffs to encourage renewable energy projects. Regional arrangements like the Regional Greenhouse Gas Initiative (RGGI) have carbon trading schemes or programs of one sort or the other that are beginning to influence energy prices. What is less appreciated and often somewhat overlooked is the growing impact of emerging international climate change legal principles that are relevant to energy prices. This article suggests that despite the relative lack of success of the international community to forge an international regime to deal with climate change over the past decades, certain enduring principles have nonetheless solidified out of that process that may shape the future pricing of energy products. 2013] EMERGING INTERNATIONAL CLIMATE CHANGE 3 A. Climate Change, Energy Prices and internationalRegulation. It has long been "officially" appreciated domestically and internationally that even putative international regulation of greenhouse gases is relevant to energy product pricing. For example, over two decades ago, the Wisconsin Public Service Commission tackled the problem of putting a dollar amount in electric rates in anticipation of international climate change regulation: "Because of widespread concern about the risks of global warming at state, national and international levels, future regulations are likely to require the utility industry to limit its release of these gases. If so, utilities would incur real economic cost in order to comply with these regulations." "A national and international consensus to regulate greenhouse gas emissions is emerging. When the likelihood of future regulation is high, it is reasonable to estimate the cost of compliance to utilities. Ignoring this financial risk would be imprudent." "Monetizing the risk of greenhouse gas regulation is a prudent means of reducing utility business risk by hedging against the future. [and] considering the likelihood of ... international greenhouse gas regulations." 2 In 2013, an International Monetary Fund (IMF) report on energy pricing reforms tied together future energy pricing and greenhouse gases: "Even future generations are affected [by underpriced energy] through reduced availability of key inputs for growth and the damaging effects of increased energy consumption on greenhouse gas emissions and global warming." "Removing [economic energy] subsidies could lead to a 13 percent decline in C02 [carbon dioxide] emissions." 3 B. The Emerging InternationalClimate Change Regime. Despite the sort of longstanding domestic and international acceptance of the connections among climate change, energy prices and international regulation, an international climate change regime has been very slow to emerge, leading to observations that there is little international climate change "law" to apply. 2 Advance Plans for Constr. Of Facilities, 136 P.U.R. 4th 153 (Wi.P.S.C. 1992); see generally, James E. Hickey, Jr. The Globalization of Domestic Environmental Law, 14 NYSBAENV'TL LAw SECTION J.16 (1994). 3 International Monetary Fund, Energy Subsidy Reform: Lessons and Implications, at 1, 5 (January 28, 2013). http://www.imf.org/external/np/pp/eng/2013/012813.pdf. 4 THE GLOBAL BUSINESS LAW REVIEW [Vol. 4:1 The following selected timeline from 1979 through 2012 illustrates the challenging, rather tortured, path toward an emerging climate change regime over the past three decades.4 In 1979, The World Meteorological Organization (WMO) sponsored the first scientific World Climate Conference (WCC) which ultimately led to the establishment of the Intergovernmental Panel on Climate Change (IPCC). In 1988, the IPCC was established by the WMO and the United Nations Environment Programme (UNEP).' The IPCC seeks "to provide the world with a clear scientific view of the current state of knowledge in climate
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