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The Black Hole in the Kyoto Protocol

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The Black Hole in the Kyoto Protocol Sustainable Development Law & Policy Volume 7 Article 24 Issue 2 Winter 2007: Climate Law Reporter 2007 The lB ack Hole in the Kyoto Protocol: Was the Exclusion of Black Carbon Regulation a "Fatal Flaw"? John Feldon Follow this and additional works at: http://digitalcommons.wcl.american.edu/sdlp Part of the Environmental Law Commons, and the International Law Commons Recommended Citation Feldon, Jon. “The iB g Black Hole in the Kyoto Protocol: Was the Exclusion of Black Carbon Regulation a “Fatal Law”?” Sustainable Development Law & Policy, Winter 2007, 60-62, 85. This Article 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]. THE BIG BLACK HOLE IN THE KYOTO PROTOCOL: WAS THE EXCLUSION OF BLACK CARBON REGULATION A “FATAL FLAW”? by Jon Feldon* INTRODUCTION be amended to incorporate measures to reduce BC emissions laiming that the Kyoto Protocol (“Protocol”) was without alienating participating countries, then it is ideal to do “fatally flawed in fundamental ways,”1 on June 2001, so. Nonetheless, the overall mission of the Protocol remains CU.S. President George W. Bush simultaneously con- sound, even in the face of new information about other con- demned the landmark international agreement against climate tributing factors to climate change. change and announced that the United States would withdraw WHAT IS BLACK CARBON, AND from participation in it.2 The United Nations Framework Con- WHY IS ITAPROBLEM? vention on Climate Change (“UNFCCC”) drafted the Protocol BC in the atmosphere consists of incompletely burned, in 1997 in order to fight the potentially catastrophic effects of microscopic particulate matter resulting from inefficient com- climate change through an international carbon dioxide (“CO2”) bustion.8 Specifically, when carbon is burned to generate energy emissions reduction plan.3 Over 160 nations ratified the Proto- and heat the burning process also produces CO2 and BC emis- col. The United States and Australia are the only countries in the sions; the amount of matter remaining depends upon how com- developed world not to participate.4 pletely the carbon is burned.9 If the process does not burn away While the United States signed the Protocol under the Clin- all solid matter, or if the byproduct is not sequestered, the result- ton administration, President Bush withdrew, citing economic ing particulates of solid carbon become atmospheric BC. concerns and dismay that large, CO2-emitting countries such BC is not only a byproduct of power production. Addition- as China and India would be ally, in developed countries the exempt from Protocol emission primary source of BC is from restrictions as developing industrial pollution and motor nations.5 Particularly troubling, Emerging evidence vehicle emissions.10 Less devel- however, was President Bush’s oped nations mainly produce assertion that the Protocol’s indicates that BC does BC by burning sooty fuels, strategy itself was “fundamen- using wood-burning stoves and tally flawed.” In the view of the play a significant role in heaters, and clearing land by Bush Administration, the Proto- burning crops and forests.11 col improperly focused on CO2 contributing to global Industrialized countries release emissions to the exclusion of the more CO2 than BC, because greater problems of black carbon climate change. their technology allows them to (“BC”) and tropospheric ozone.6 burn carbon with high effi- President Bush implied that ciency.12 On the other hand, half without a plan to limit BC of the world’s atmospheric BC comes from the burning of fields efforts, curbing worldwide CO2 emissions is not sufficient to and forests; 30 percent comes from residential burning of coal, address global warming. firewood, and dung; and ten percent comes from diesel If the Bush Administration’s assertion is true, the implica- engines.13 For this reason, the worldwide BC problem rests tions are staggering. Could it be possible that the countries of the largely on developing nations. world had come together and devised a way to address one of the PROBLEMS WITH BLACK CARBON most urgent global environmental concerns of the century, only to completely misidentify the nature of the problem? Equally BC causes a variety of health problems if inhaled, including 14 important is to evaluate whether or not the Bush Administra- lung disease, asthma, heart disease, and cancer. The estimated tion’s assertion is justified. Emerging evidence indicates that BC health cost of particulate pollution in industrialized countries 15 does play a significant role in contributing to global climate ranges from U.S. $200,000 to $2.75 million per ton, per year. change. This article argues that the Kyoto Protocol is, and will Further perspective is given by a figure released by the World continue to be, a powerful force against climate change whether Health Organization that air pollution accounts for the deaths of 16 or not it addresses BC. While BC is unquestionably a powerful 2.7 million people annually. contributing factor to climate change, CO2 remains the largest contributor to the problem, and a long-term solution requires *Jon Feldon is a JD candidate, May 2007, at American University Washington 7 CO2 reductions as soon as possible. If the Kyoto Protocol can College of Law. WINTER 2007 60 Atmospheric BC also affects weather patterns. Unlike Climate Change released the results of a six-year study of global greenhouse gasses, which trap heat rising from the earth’s sur- warming.34 The study shows average global temperatures could face, atmospheric BC, visible as haze or smog, or incorporated rise by 1.5 to 5.8 degrees Celsius within this century, and that the into clouds, absorbs incoming sunlight due to its dark color. BC changes are 90 percent likely to have been caused by human has the effect of cooling regions directly below it while increas- activity.35 To prevent or mitigate permanent environmental dam- ing the net temperature of the earth.17 These changes in temper- age, a strong, effective international effort will be necessary. ature destabilize regional weather patterns.18 For example, Currently, the Kyoto Protocol is the only binding international NASA scientists link increasing droughts in northern China and agreement reflecting the world’s reaction to this problem.36 With flooding in southern China to atmospheric BC.19 the Protocol set to expire in 2012, the issue of whether or not the BC’s role in climate change occurs on two levels. Directly, agreement is irredeemably flawed by not regulating BC is criti- BC’s dark coloration absorbs heat that would otherwise escape cally important. 20 the atmosphere into space. BC also has several indirect con- THE ARGUMENT FOR INCLUDING BLACK CARBON tributory effects. Atmospheric BC can be incorporated into IN THE KYOTO PROTOCOL clouds, darkening them, and causing them either to absorb the 40 to 90 percent of solar radiation that they would otherwise BLACK CARBON SIGNIFICANTLY CONTRIBUTES reflect21 or to overheat and burn away entirely.22 Either result TO CLIMATE CHANGE 23 prevents clouds from keeping the planet cool. Unlike CO2, The primary argument that the Kyoto Protocol mishandles which can stay in the atmosphere for 50 to 200 years, BC only global warming lies in the fact that BC contributes significantly stays aloft for a few weeks or months.24 Unfortunately, once out to global warming, but is not addressed by the Protocol’s terms. of the air, BC can collect on ice, snow, mountains, and glaciers.25 Stanford University Professor Mark Z. Jacobson states that The darkened snow and ice have a reduced albedo, or reflectiv- reducing BC levels “may slow global warming more than may ity, resulting in faster melting any emission reduction of CO2 37 and less sunlight reflected out of or CH4 for a specific period.” the atmosphere.26 Including all Studies conducted by Jacobson the different ways BC interferes Black carbon’s dark and others show that BC warms with Earth’s heat loss, experts air much more than CO2 does, estimate that BC causes more coloration absorbs heat per square unit.38 Ignoring BC than 25 percent of all observed could be dangerous, because global warming. When com- that would otherwise even though BC is less common bined with methane (“CH4”) and in the atmosphere than carbon other pollutants, these particu- escape the atmosphere dioxide, governments could do lates account for least as much more harm than good if they 27 into space. global warming as CO2. increase the release rate of BC THE KYOTO PROTOCOL in their attempts to decrease CO emissions. For example, tax The Kyoto Protocol is an 2 laws in the European Union (“EU”) favor diesel vehicles39 international agreement made under the UNFCCC at the third because they get 25 to 35 percent better mileage while emitting Conference of the Parties28 whereby 165 member nations agreed less carbon dioxide than gasoline cars.40 But diesel vehicles to reduce their emissions of CO and other greenhouse gases.29 2 release much more BC than gasoline vehicles.41 If the Bush Under the Kyoto Protocol, developed member nations agree to Administration and Jacobson are correct, the Kyoto Protocol reduce their greenhouse gas emissions by an average of five per- resulted in European
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