Stephen L. Kass
Stephen L. Kass (NYLJ/Rick Kopstein)

Within the past month, the United Nations’ Intergovernmental Panel on Climate Change (IPCC) has issued two reports that, taken together, make clear just how fast the earth’s climate is changing as a result of human conduct and that the consequences of that conduct will, unless arrested immediately, be severe on every continent, including North America. The two reports, issued by the IPCC Working Groups II and III on March 31 and April 11, respectively, identify the precise human conduct primarily responsible for climate change and the actions, and their timing, necessary to avoid the most severe consequences for human civilization.1 Whether the nations of the world, including our own, will take those actions in the time remaining depends on their elected, appointed or self-appointed leaders, but the reports make indisputably clear that those most affected by the continuing failure of nations to act will be our children, their children and grandchildren and anyone else living in a superheated world in the year 2100 and beyond.

IPCC Temperature Projections

Just how superheated the Earth could become by 2100 will surprise all but the closest followers of climate science. The March 31 (Working Group II) report indicates that there was an average increase in global temperature (over land and oceans) of about .85 degrees Celsius (C)—about 1.3 degrees Fahrenheit (F)—between 1880 and 2012. This increase has not been spread evenly, and future increases are expected to vary by region, as well as by the actions the world takes to reduce greenhouse gas (GHG) emissions.

Africa, which experienced slightly lower than average increases over the last century, is expected to have the greatest temperature increase during the 21st century, with West Africa predicted to have temperatures between 3 and 6 degrees C (5.4-10.8 degrees F) higher by 2100 than they were in 2000. Central and South America are expected to have temperature increases ranging from .6 to 7 degrees C (1 to 12.6 degrees F), while North America is predicted to have average temperature increases of 2 to 4 degrees C (3.6 to 7.2 degrees F) over most land areas of the United States, Mexico and Canada. Data for Asia is said to be insufficient for similar quantified predictions, though the March 31 report indicates that overall temperature increases are expected throughout the continent.

The March 31 IPCC report is more understated in tone but catalogues by region the expected natural resource impacts resulting from the temperature changes described above. Northern Africa—already stressed for water—will have significantly less rainfall by 2100, while East Africa is expected to have more rainfall during rainy seasons, reducing droughts but increasing the risk of flooding. Central America and northern South America down to the northeast of Brazil (including parts of the Amazon rain forest) are expected to have decreased rainfall, while portions of Peru, Ecuador and the western Amazon will have more. The Northeastern U.S. may well have more rainfall by 2100 while the Southwestern and South Central U.S. may continue to have less.

This pattern of greater and lesser rainfall combined with sharply rising temperatures is expected to produce more heat waves, more droughts, more floods and more hurricanes than has historically been the case in most regions of the world, particularly in Africa and Central America, which may be the tropical region that is most responsive to climate change.

With this background, the March 31 report sets forth, both in text and graphic form, the principal risks facing each of the world’s regions as a result of climate change. In Africa, these risks include stress on already over-exploited water resources; food insecurity as a result of floods, drought and pests; and changes in the incidence and range of vector and water-borne diseases. In Europe, key risks include impacts from coastal and river flooding in urban areas; increased water restrictions as demand increases and supplies shrink; and economic losses from extreme heat events, crop reduction, health impacts and forest fires. In Asia, coastal, river and urban flooding is a major risk, along with heat-related mortality, drought and food shortages.

In North America, loss of ecosystems from wildfires, heat-related mortality, urban floods, public health impacts, water quality impairment from sea level rise, extreme precipitation and hurricanes are all identified as significant risks over the balance of the century. In Central and South America, the major risks are water availability, flooding, landslides, decreased food production and vector-borne diseases. Risks to the Earth’s polar regions and small island states are already well-known, but the March 31 report highlights another climate impact that receives too little public attention—reduced biodiversity and fisheries in the oceans due to rising temperature and acidity levels, with severe consequences for human food sources that will already be stressed by declining agricultural production, rising population and changing middle-class diets.

Rapidly Rising GHGs

This litany of woes is no longer conjectural, or a biblical parable. The April 11 (Working Group III) report clearly identifies the drivers for these climate impacts—rapidly increasing GHG emissions across virtually the entire world. Despite the 1992 U.N. Framework Convention on Climate Change (UNFCC) (which called on all developed countries to take those measures necessary to reduce their emissions to 1990 levels) and the 1997 Kyoto Protocol (which required those countries to reduce emissions below 1990 levels), GHG emissions in both developed and developing countries have continued to climb. The overall result has been an average increase in global GHG emissions of 2.2 percent per year from 2000 to 2010 (approximately double the average increase from 1970 to 2000), making the first decade of this century the one with the highest GHG emissions in human history.

By 2010, total annual GHG emissions had increased by almost 25 percent over 2000. Some 76 percent of these emissions came from carbon dioxide (CO2) from fossil fuel combustion and industrial processes, with the balance coming from methane (16 percent), nitrous oxide (6 percent) and fluorinated gases (2 percent). CO2 emissions continued to increase by almost 5 percent between 2010 and 2012, so that about half of all CO2 emissions since 1750 have now occurred in the last 40 years and a disproportionate share of that within the last 10 years.

The April 11 report also makes clear where most of this CO2 increase has come from. Between 1970 and 2010, CO2 emissions from fossil fuels, cement production and gas flaring were double the cumulative total of all such emissions between 1750 and 1970. Between 2000 and 2010, the 25 percent increase in total annual GHG emissions was attributable largely to direct emissions from power plants and related energy supply, industrial operations and transportation. By 2010, 35 percent of direct GHG emissions were from energy supply, 21 percent were from industrial activities (mining, manufacturing, chemicals, fertilizers, pulp and paper and waste disposal), 14 percent from transportation, 24 percent from land-use and forest activities and 6 percent from buildings.

When indirect emissions from heat and electrical demand are included, the share from industries of annual GHG emissions jumps to 31 percent and buildings’ share increases to 19 percent. Land-use and forest activities continue to generate about 24 percent of annual GHG emissions, the only sector for which GHG emissions have not increased significantly during the last decade.

The principal driver for these increases, at a time when GHG emissions were supposed to be decreasing under both the UNFCCC and the Kyoto Protocol, has been economic growth in general, and increasing use of coal in particular. If these trends continue without meaningful GHG emission reductions in the future, mean global temperatures by 2100 will increase by 3.7 to 4.8 degrees C over pre-industrial levels, and CO2- eq levels (that is, the combined concentrations of CO2, methane and other GHGs) will increase from today’s 430 parts per million (ppm) to more than 450 ppm by 2030 and to between 750 and 1,300 ppm (and possibly more) by 2100. These projected 2100 levels have not existed at any time in recorded human history and, as discussed above, are inconsistent with existing patterns of human (and other species’) habitation.

Required Mitigation

Are those GHG reductions feasible and, if so, what are they and when do they have to be in place? The April 11 report specifies a range of actions that, taken together, are “likely” (but not certain) to arrest the Earth’s warming before it becomes unstoppable. To keep atmospheric CO2-eq levels at about 450 ppm (that is, just slightly above the current 430 ppm level) and thus average temperatures at or below 2 degrees F above pre-industrial levels, it will be necessary to reduce current global GHG levels by 40-70 percent by 2050 and to zero (or below) in 2100. To do this, the report indicates, will require immediate improvements in energy efficiency, a tripling or even quadrupling of zero and low-carbon energy supplies from renewable sources (solar, wind, geothermal, tidal), rapid development and use of nuclear energy, widespread use of CO2 capture and storage technology (CCS) for both fossil fuels and biomass energy and expanded afforestation (and reduced deforestation) programs worldwide.

The GHG reduction pledges made by the nations of the world at Cancun in December 2010—pledges that have not been fulfilled—are clearly inadequate for this purpose, as are the domestic actions of the United States, China and virtually all other countries. Yet any continued delay in implementing the report’s changes will make it far more difficult, if not impossible, to keep 2100 temperatures below a 2-degree C increase, or, indeed, even below a 3-degree C increase over pre-industrial levels. Power plants, industrial facilities and even land use practices that are planned now have long useful lives (and amortization periods), so they are unlikely to be replaced by less emitting facilities or practices in time to achieve the necessary mid-century GHG reductions. The longer the new policies and practices are delayed, the more the world will be required to turn to untested, very expensive and potentially dangerous “carbon dioxide removal” (CDR) strategies that might, if successful (a dubious proposition) provide a quick fix for some excess GHG concentrations but would not address the underlying emissions excess.

The cost of these GHG reductions (termed “mitigation” in the IPCC reports) is not trivial. The April 11 report estimates that the total mitigation costs, assuming worldwide carbon taxes and the availability of all key technologies, exclusive of any benefits from reduced climate change or ancillary environmental benefits (such as reduced local air pollution) would amount to approximately 2 percent of global consumption in 2030, 3 percent in 2050 and 5 percent in 2100, compared to a base in which that worldwide consumption increases from 300 to 900 percent over the course of the century. In annualized terms the cost of this mitigation (again, without accounting for its likely economic benefits) would amount to a tiny share (approximately 0.04 to 0.14 annually) of the annualized consumption growth of between 1.6 percent and 3 percent per year over the same period.

U.S. Actions

But the required GHG reductions will not occur—and the Earth and its inhabitants will not escape the most severe impacts of climate change—without prompt domestic action and international leadership by both the United States and China. Within the U.S., effective climate change legislation has been stalled by years of blind denial by conservatives in Washington and elsewhere, by executive foot-dragging, by short-sighted industry lobbying and by fruitless debate among environmentalists and economists over the optimal cap-and-trade program.

Carbon taxation (favored by most serious observers) has been dismissed as politically infeasible, fossil fuel subsidies have been continued even as renewable energy subsidies have expired and executive branch regulatory action has been impeded at every stage by litigation, legislative roadblocks and presidential timidity. The Massachusetts v. EPA Supreme Court decision in 2007 ordering the Environmental Protection Agency to regulate CO2 emissions is still not fully implemented.

It is past time for this to stop. To have any real hope of avoiding a largely unlivable world, the U.S. needs to promptly (1) impose and enforce (as the Obama administration has belatedly begun to do) EPA regulations that ban not only new coal plants but forces the near-term retirement of existing coal plants; (2) redirect fossil fuel subsidies to renewable energy sources until they can become fully competitive with long-subsidized hydrocarbon fuels; (3) improve the regulation of natural gas exploitation through hydrofracking so that gas can replace coal not only in the U.S. but abroad; (4) seriously address both waste disposal and safety regulation gaps for nuclear power plants; (5) adopt national energy efficiency standards applicable to both new and existing buildings, with subsidies to assist existing building owners to retrofit their structures; and (6) adopt a national carbon tax that is high enough both to change purchasing habits and provide the funds necessary for renewables, building retrofits, compensatory payments for low-income consumers and the financing of climate-adaptation programs.

At the same time, the U.S. needs to engage with China, India, Brazil, South Africa, Indonesia and other nations to encourage and, where necessary, assist them to reduce their own GHG emissions. In the case of China, this means both assisting in the development and installation of CCS technology for China’s new coal plants and exporting natural gas to replace existing low-efficiency coal plants. The same policies could apply to India and South Africa, along with assistance in distributed electrical generation through solar and wind arrays.

Indonesia’s principal GHG emissions come from deforestation (which also threatens the nation’s biodiversity), and the United States can assist in enforcing new and existing forest protection programs through the U.N.’s “REDD Plus” program (Reducing Emissions from Deforestation and forest Degradation), financing for increased forest surveillance and trade programs designed to encourage consumers to purchase sustainably harvested wood products. Similar deforestation assistance should be pursued with Brazil, together with technical assistance to help reduce emissions from Brazil’s growing industrial and energy sectors. While these efforts to reduce emissions abroad will require additional financial commitments from the United States, they too are a small price to pay for beginning to control GHG emissions from developing countries, without which the United States’ own efforts, once they materialize, will be inadequate.

These changes will not come easily in the United States, where anti-tax sentiment and climate-denial can be exploited by the same corporate lobbyists (whether from the Chamber of Commerce or from the oil, gas, coal and other large industries) who have successfully blocked or delayed even modest efforts to address climate change at the federal level. U.S. lawyers have played important roles in these all-too-successful efforts, and can be expected to be called on again by clients to oppose major climate initiatives to bring U.S. policies and actions in line with the IPCC’s urgent recommendations.

Should they do so? While there are responsible lawyers who can surely point to the importance of competent counsel on all sides of important legal and policy debates, it is time for our profession to ask what our proper role is when the future of our society, and many others around the world, is threatened within the lifetimes of our children by continued “business as usual” with respect to climate. In retrospect, how many of today’s lawyers would feel comfortable if they had represented, however zealously and competently, those resisting racial integration of southern schools, parks or buses? In their own way, the climate challenges facing our nation are as serious—and reflect just as entrenched lifestyles and attitudes—as the evils of racial segregation were in the 1950s and 1960s. Unless a significant share of the U.S. public demands prompt action to reduce our nation’s GHG emissions, whether along the lines suggested above or through comparable measures, our children will awake to a world awash in oceans, deserts, food scarcity and conflict.

If lawyers remain absent from that call for change, or if we continue to view this issue as one where lawyers can responsibly advocate for the status quo, we will have failed our nation as surely as those who defended “separate but equal” as the law of the land.

Stephen L. Kass is a partner and co-director of the environmental practice group at Carter Ledyard & Milburn and an adjunct professor at Brooklyn Law School and NYU’s Center for Global Affairs. Hugo Arenas, an associate at the firm, assisted in research for this column.

Endnotes:

1. The IPCC Working Group II report is available at http://ipcc-wg2.gov/AR5/; the IPCC Working Group III report is available at http://www.mitigation2014.org/.