Sustainable Development Law & Policy Volume 11 Article 1 Issue 2 Winter 2011: Climate Law Reporter Volume 11 Issue 2 Sustainable Development Law & Policy Follow this and additional works at: http://digitalcommons.wcl.american.edu/sdlp Part of the Environmental Law Commons Recommended Citation Sustainable Development Law & Policy 11, no. 2 (2011): 1-100. This Entire Issue is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Volume XI, Issue 2 Winter 2011 SSUUSSTAINABLETAINABLE DDEVELOPMENTEVELOPMENT LLAWAW && PPOLICYOLICY EXPLORING HOW TODAY’S DEVELOPMENT AFFECTS FUTURE GENERATIONS AROUND THE GLOBE IN THIS ISSUE: CLIMATE LAW REPORTER 1 | EDITORS’ NOTE by Paulo A. Lopes and Melissa Blue Sky 3 | CHINA’S GREENTECH PROGRAMS AND THE USTR INVESTIGATION by Joel B. Eisen 9 | DUE PROCESS RIGHTS IN THE CARBON MARKETS by Lisa Hodes Rosen, Esq. & Adrienne Bossi, Esq. 15 | CARBON REDUCTION PROJECTS AND THE CONCEPT OF ADDITIONALITY by Brian Joseph McFarland 19 | CLIMATE CHANGE: GOVERNMENT, PRIVATE PROPERTY, AND INDIVIDUAL ACTION by Paul Babie 22 | OPTIONS FOR BLUE CARBON WITHIN THE INTERNATIONAL CLIMATE CHANGE FRAMEWORK by Gabriel Grimsditch 25 | IS REDD ACCOUNTING MYOPIC?: WHY REDUCING EMISSIONS FROM DEFORESTATION AND FOREST DEGRADATION PROGRAMS SHOULD RECOGNIZE AND INCLUDE OTHER ECOSYSTEMS AND SERVICES BEYOND CO2 SEQUESTRATION by Paulo A. Lopes 32 | THE TORTUOUS ROAD TO LIABILITY: A CRITICAL SURVEY ON CLIMATE CHANGE LITIGATION IN EUROPE AND NORTH AMERICA by Luciano Butti 38 | AFRICA AND THE CLIMATE CHANGE AGENDA: HURDLES AND PROSPECTS IN SUSTAINING THE OUTCOMES OF THE SEVENTH AFRICAN DEVELOPMENT FORUM by James Forole Jarso 45 | IMPLEMENTING A RENEWABLE ENERGY FEED-IN TARIFF IN SOUTH AFRICA: THE BEGINNING OF A NEW DAWN by Dr. Kola O Odeku, Professor Edson L Meyer, Professor Obeng Mireku, and Professor JLH Letsoalo 50 | NATIONAL SECURITY IN THE 21ST CENTURY: HOW THE NATIONAL SECURITY COUNCIL CAN SOLVE THE PRESIDENT’S CLIMATE CHANGE PROBLEM by Arija Flowers 58 | CLIMATE CHANGE, INTELLECTUAL PROPERTY, AND THE SCOPE OF HUMAN RIGHTS OBLIGATIONS by Kavita Kapur 66 | THE SINGAPORE WORKAROUND: PROVIDING A “GREENPRINT” FOR A UNFCCC PARTY RECLASSIFICATION by P. Cal Trepagnier http://www.wcl.american.edu/org/sustainabledevelopment EDITORS’ NOTE ustainable Development Law & Policy publishes a Climate Law Reporter each year with a goal of pro- Sviding practitioners and academia around the world FEATURES: with an accessible and concise report on the current state of climate law. After taking stock and regrouping following the UNFCCC negotiations in Copenhagen, the international com- 37 | HAZY SKIES IN AMERICA’S FUTURE?: THE BATTLE munity began to focus on the December 2010 meeting in Can- BETWEEN “FREE INDUSTRY” AND CLEAN AIR cún, Mexico. With the continued inability of the U.S. Congress by Oded Cedar to pass a climate bill, expectations were not high going into the Cancún negotiations. Although Parties moved forward with the 56 | CLIMATE CHANGE AND SMALL ISLAND STATES: acceptance of numerous Agreements and Decisions, a succes- ADRIFT IN A RAISING SEA OF LEGAL UNCERTAINTY sor to the Kyoto Protocol with the continuation of a bifurcated by Jeremy Kelley approach—different obligations and responsibilities for devel- oped and developing countries—appeared even more uncer- tain. As the international community looks toward the 2011 64 | IS NEWER TECHNOLOGY ALWAYS BETTER?: negotiations in Durban, South Africa, expectations are again WHY INDIGENOUS PEOPLES’ TECHNOLOGY SHOULD increasing. BE INCORPORATED INTO THE INTERNATIONAL FIGHT One of the major challenges to reaching an international AGAINST CLIMATE CHANGE binding agreement over the past ten years has been the opposi- by Ashley Gardana tion by the United States. But in more recent years the inter- national community has also come to recognize China as a 69 | WORLD NEWS UPDATE: UNFCCC GREEN countervailing force. This issue of the Climate Law Reporter CLIMATE FUND CREATED includes proposals for climate change mitigation, as well as by Laura Drummond shifting approaches to address climate policy and effects of cli- mate change. One of our authors reviews the tension between the United States and China on “green technology” and ques- tions whether the portrayal of a “green energy race” is accu- rate or advantageous for either country. Other articles focus on impacts from climate changes are disproportionate compared climate change mitigation mechanisms such as the role of due with the continent’s contribution. These articles review the key process in the carbon markets; which metrics are best for addi- challenges and prospects in sustaining the outcomes of the sev- tionality of carbon sequestration projects; the inclusion of other enth African Development Forum to address climate change, ecosystems and services beyond the confines of current forestry and the effects of establishing renewable energy feed in tariffs programs including reducing emissions from deforestation and in South Africa. forest degradation (“REDD”) programs; and even if private As the climate conference in South Africa approaches property monetization of carbon reduction is an approach we and the international community again prepares for negotia- should pursue. Another article performs a comparative analy- tions extending into the early mornings, we must remember sis of the successes and failures of climate change litigation that while climate change is most often seen as an international tactics across venues and continents, while one author sug- issue, actions, agreements, and compromises at all levels are gests that litigation and legislation might not be necessary required to succeed in our efforts to mitigate climate change. because the U.S. President already has authority under existing national security laws to mitigate the threat of climate change. Additionally, one article focuses on an aspect of human rights challenges inherent in climate change—developing country use of clean energy technologies that are protected by intel- lectual property rights, frequently held by developed countries Paulo A. Lopes Melissa Blue Sky thousands of miles away. Two authors focus on Africa, where Editor-In-Chief Editor-In-Chief 1 SUSTAINABLE DEVELOPMENT LAW & POLICY ABOUT SDLP Sustainable Development Law & Policy (ISSN 1552- Editors-in-Chief 3721) is a student-run initiative at American University Melissa Blue Sky Washington College of Law published three times each Paulo A. Lopes academic year, with occasional special editions and two annual foreign language translations. The journal publishes Senior Editorial Board articles and essays that focus on reconciling the tensions Managing Editor Lauren E. Trevisan between environmental sustainability, economic develop- Marketing Editor Jessica B. Goldstein ment, and human welfare. It embraces an interdisciplinary Symposium Editor Arija Flowers focus to provide a broad view of current legal, political, and International Editor Megan Chapman social developments. Our mission is to serve as a valuable Digital Editors Laura Drummond, Tina R. Goel resource for practitioners, policy makers, and concerned Senior Editors citizens promoting sustainable development throughout Nick Alarif, Nickolas Boecher, Sarah Bury, Kate Halloran, the world. Andrea Martinez, Joe Richardson, Liesel Stanhope, Karla Torres, Winfield Wilson Sustainable Development Law & Policy prints in accor- dance with the standards established by the Forest Steward- Staff ship Council (“FSC”) that are designed to eliminate habitat Halley Allaire, Oded Cedar, Yoona Cho, Janet A. Choi, destruction, water pollution, displacement of indigenous Serena Corbetta, Pablo Forray, Robert Foster, Kira peoples, and violence against people and wildlife that often Hettinger, Chris Hudock, Jeremy Kelley, Shubra Ohri, accompanies logging. Achieving FSC Certification requires Norah Patrick, Emmett Pepper, Matt Ribe, Mona Sheth, that every step of the printing process, from lumber gather- Aileen Thompson, Pamela Tsang, Chelsea Tu, Braunson ing to transportation to printing to paper sorting, must com- Virjee, Cynthia Wildfire ply with the chain of custody established by the FSC which Advisors runs a strict auditing system to maintain the integrity of David Hunter, William L. Thomas, Durwood Zaelke, their certification process. Daniel Bradlow, Marcos Orellana, Glenn Wiser, Perry Currently, FSC certification is one of four methods a pub- Wallace, Kenneth Markowitz, William Snape lisher can employ to ensure its publications are being pro- duced using the best sustainable practices. It is the method practiced by our printer, HBP, Inc. (FSC Chain-of-Custody Certification: SWCOC-002553). To purchase back issues please contact William S. Hein & Co. at [email protected]. To view current and past issues of the publication please visit our website at http://www. wcl.american.edu/org/sdlp. Current and past issues are also available online through HeinOnline, LexisNexis, Westlaw, vLex, and the H.W. Wilson Company. Please note that Vol- ume I and Volume II, Issue 1 are published as International and Comparative Environmental Law. Printed by HBP, Inc., Hagerstown, MD. Green Inks WINTER 2011 2 CHINA’S GREENTECH PROGRAMS AND THE USTR INVESTIGATION*