Reef Madness

Lewis Op-ed in Tech Central Station

Full article available as a pdf.

Now that Russia has ratified the Kyoto Protocol, Australia is the only industrialized country besides the United States to reject the U.N.-sponsored climate treaty. However, a commissioned by Australian affiliates of World Wildlife Fund and Greenpeace denies that Australia has any choice in the matter.

The report, prepared by the , contends that the , a treaty administered by the United Nations Educational, Scientific, and Cultural Organization (), obligates Australia to ratify the and, thus, limit its emissions of greenhouse gases (GHG), chiefly carbon dioxide (CO₂) from fossil-fuel combustion. Indeed, according to the report, Australia is obligated to make "deep cuts" in GHG emissions far beyond the reductions required of any nation by Kyoto.

Unsurprisingly, the report's reasoning applies with equal plausibility to the United States. In fact, if the Sydney Centre's argument is correct, then all Parties to the Convention, including China, India, and numerous other developing countries, must implement Kyoto-like controls—even though Kyoto exempts such nations from emission limitations.

The Sydney Centre is not the first advocacy group to claim that existing law prohibits a nation's voters and their elected representatives from rejecting Kyoto-style curbs on energy use. To mention just the leading example, are suing the U.S. Environmental Protection Agency under the Clean Air Act for refusing to regulate GHG emissions from automobiles. The suit is . Congress rejected regulatory climate policies when it last amended the Clean Air Act, and a Senate proposal to establish CO₂ emission standards for automobiles never made it into the Senate's version of the bill, much less the final Act. But it's a safe bet that when the AGs' lawsuit goes down in flames, the will cast about for another pro-Kyoto litigation strategy. Will they look to the Sydney Centre for inspiration?

Litigation Logic

The Centre's report, Global Climate Change and the Great Barrier Reef: Australia's Obligations under the World Heritage Convention, contains much detail, but the basic argument may be summarized as follows:

(1) "The IPCC [U.N. ] predicts that the globally averaged surface temperature will rise by 1.4 to 5.8 degrees Celsius over the period 1990 to 2100.” "Increases in sea temperature of as little as 1 degree Celsius may lead to coral bleaching and the eventual death of corals.” Warmer-than-usual sea temperatures in 1998 and 2002 produced mass bleaching events at the Great Barrier Reef (GBR) [pp. 1, 9, 10].

(2) Australia is a Party to the World Heritage Convention, and since 1981 the GBR has been a World Heritage Area.

(3) Under Article 4 of the Convention, each Party "recognizes the duty" to protect, conserve, and transmit to posterity all natural Heritage sites within its territory, and "will do all it can to this end, to the utmost of its own resources and, where appropriate, with…international assistance and co-operation."

(4) Under Article 5, each Party "shall endeavor, in so far as possible…to take the appropriate legal, scientific, technical, administrative and financial measures necessary" to protect, conserve, and rehabilitate Heritage sites within its territory.

(5) Under Article 6, each Party "undertakes not to take any deliberate measures which might damage directly or indirectly" any Heritage areas, at home or abroad.

(6) A "significant reduction in global emissions of greenhouse gases, well in excess of those set by the Kyoto Protocol ('deep cuts'), is necessary in order to stabilize global temperatures and thereby reduce and reverse the impact upon the Great Barrier Reef.” Such measures include "setting a national target of a 60% reduction in greenhouse gas emissions by 2050" [p. 13].

(7) The Kyoto Protocol is the "only international instrument incorporating binding country targets for the reduction of greenhouse gas emissions," and "offers the only mechanism through which the international community may reach agreement on binding targets for achieving deep cuts in global greenhouse gas emissions" [pp. 22, 23].

(8) Australia's decision not to ratify Kyoto conflicts with Australia's Article 4 obligation to "do all it can," "to the utmost of its own resources," including efforts involving "international…co-operation," to protect the GBR.

(9) Australia's decision also conflicts with the Article 5 obligation to "endeavor, in so far as possible" to take "appropriate" "legal" and "administrative" measures to protect the GBR.

(10) Finally, Australia's decision conflicts with the Article 6 obligation to avoid taking "deliberate measures which might damage directly or indirectly" any World Heritage Area. Australia's refusal to join Kyoto "has been a factor delaying" the treaty's entry into force, and jeopardizes the "conclusion of an effective international legal framework to address climate change" and the consequent threat to the GBR [pp. 24, 28].