Winning & losing (mostly losing) in Cancun

There is good news and bad news from the UN Climate Change Conference that just ended in Cancun, Mexico.
First the good news.
The conference produced some important steps forward:
► With one lone dissent, by Bolivia, the other 193 participants overwhelmingly endorsed the final agreement, which formalized the status of the Copenhagen Accord. That accord, about which IntLawGrrls posted here and here, thus has been officially integrated into the United Nations process.
► There was an agreement on preserving tropical forests (REDD+) that provides for compensation payments to tropical countries that reduce deforestation.
► There was also an agreement setting up a Green Climate Fund to provide financial assistance to help developing countries restrain their emissions and cope with the impacts of climate change.
These are important steps.
Given last year's failed Copenhagen meeting, expectations were very low for the Cancun meeting. So, the conference’s modest success was encouraging in that it restored faith in the possibilities of the multilateral United Nations process as a forum where climate progress can be made. Mexican Foreign Minister Patricia Espinosa (right) earned wide praise for her transparent and deft handling of the negotiations.
Now for the bad news. . . .
The talks failed to produce any agreement ensuring reduced carbon emissions. Without drastic cuts in carbon emissions, the world will soon run out of time to avert catastrophic climate change.
The scientific evidence is clear — human activities linked to burning fossil fuel are increasing carbon dioxide levels in the atmosphere. The resultant buildup of carbon dioxide is likely to warm the planet by several degrees Centigrade in the next half-century. International efforts have identified keeping that warming below 2 degrees Celsius (about 3.6 degrees Fahrenheit) as the goal.
The effects of global warming are already clearly visible in the Arctic, where drastically reduced summer sea ice threatens the continued existence of ice-dependent animals like Pacific walrus and polar bears, while melting permafrost jeopardizes the safety and livelihoods of Arctic residents. Coral reefs are bleaching and dying at an alarming rate.
Extreme weather events around the world, including floods and droughts are a harbinger of things to come. As the planet warms and the climate changes, we can expect disease, species extinction, water shortages, rising sea levels, and the disappearance of small island states.
In short, climate change is likely to cause conflict and dislocations around the globe.
In the face of this looming catastrophe, we need bold action. What we got is at most a modest step forward.
The Cancun Agreement calls on countries to take “urgent action” to keep global temperatures from increasing more than 2 degrees Centigrade above pre-industrial levels. It does not, however, specify what those actions should be. States have made no binding commitments to do anything. The Agreement does nothing to about the gaping chasm between the current voluntary emissions-reduction commitments that states have set for themselves under the Copenhagen Accord, and the kinds of reductions needed to meet this goal.
Alden Meyer of the Union of Concerned Scientists said it best:

World leaders must significantly raise their game if we're to meet the challenge of climate change. Time is running out, and the atmosphere doesn't negotiate with politicians.

Guest Blogger: Betsy Baker

It's IntLawGrrls' great pleasure to welcome Dr. Betsy Baker (left) as today's guest blogger.
Betsy is an Associate Professor and Senior Fellow for Oceans and Energy, at the Institute for Energy and the Environment of Vermont Law School, home institution of IntLawGrrl Stephanie Farrior. Betsy teaches in the comparative law and international organizations curriculum, with emphasis on her area of special expertise -- the environment, law of the sea, and the Arctic. She served as a 2009-2010 Research Fellow at Dartmouth College's Dickey Center for International Understanding and Institute of Arctic Studies. She's also been a member of the science crew of the Healy, the U.S. Coast Guard's newest polar icebreaker, on deployments for State Department-sponsored mapping of the United States' Extended Continental Shelf in the Arctic Ocean. Betsy operates her own blog, entitled Arctic Mapping and the Law of the Sea.
She earned doctoral and master of laws degrees from Christian-Albrechts-Universität zu Kiel; while in Germany, she worked as legal historian at the Heidelberg Academy of Sciences and was affiliated with the Max Planck Institute for Comparative Public Law and International Law. Betsy, who clerked for Judge John T. Noonan, Jr., U.S. Court of Appeals for the Ninth Circuit, also holds a J.D. from the University of Michigan and B.A. from Northwestern University. She was a Lecturer on Law and Assistant Dean for the Graduate Program and International Legal Studies at Harvard Law School before joining Vermont's faculty in 2007.
In addition to these SSRN-posted publications, Betsy's scholarship includes examinations of proposals for Canadian-US cooperation in maritime issues and the law-science interface in environmental treaties and legislation. In her guest post below, she considers the newly announced U.S. ocean policy in light both of international law and the oil spill off the Gulf of Mexico.
Heartfelt welcome!

Go On! "Arctic Sovereignty"

(Go On! is an occasional item on symposia of interest.)
Ice caps are melting.*
Polar bears are perishing.**
The Russians are coming.***
An oceans treaty remains LOST somewhere in the U.S. Senate.****
"Arctic Sovereignty: Cold Facts, Hot Issues," a conference on the law underlying these events, will take place 8:30 a.m.-5 p.m. On Friday, October 3, at Southwestern Law School in Los Angeles. Panels will cover a variety of topics – Territory & Security, Environment & Natural Resources, Indigenous & Human Rights. Among those presenting papers, which will be published in the Southwestern Journal of International Law, include: IntLawGrrls’ own Rebecca Bratspies; Suzanne Lalonde, Université de Montréal; Rosemary Cooper, Inuit Tapiriit Kanatami; Sarah Krakoff, Colorado Law School; Sophie Thériault, Université de Ottawa; and Angela Riley, Southwestern Law School.
Details and registration here.

* Climate change (here).

** Bears (here).

*** Back last summer (prior post here), and again, this week (see here).

**** Law of the Sea Treaty (here).

On August 3

On this day in ...

... 1958 (50 years ago today), USS Nautilus, a nuclear-powered submarine, became the 1st vessel to cross the North Pole underwater. The Pacific-to-Atlantic voyage of the submarine (left) went through more than 1,800 miles of poar ice cap.

... 1972, the U.S. Senate gave its advice and consent to the Anti-Ballistic Missile Treaty, by which the United States and the Soviet Union agreed to curtail their development of such missiles. The treaty entered into force on October 3 of the same year. (credit for photo of anti-ballistic missile)

Polar bears in a "regulatory train wreck"?

Polar bears face an increasingly uncertain future.

The Problem
Global warming is changing the arctic — reducing the coverage and availability of the ice on which polar bears depend. Richard Steiner, a marine biology professor at the University of Alaska, puts it a little more bluntly:

For anyone who has wondered how global warming and reduced sea ice will affect polar bears, the answer is simple — they die.

(photo credit) The polar regions bear the brunt of climate change, as we've posted. For example, last year's summer sea-ice shrank to record low levels, about 4.3 million square kilometers in September — nearly 40% below the levels that would be expected based on long-term average levels! That is bad news for polar bears, which depend on sea ice to hunt seals.

The International Union for the Conservation of Nature considers polar bears to be a vulnerable species.

The Lawsuit
The threat that global warming, and the resulting loss of sea ice, poses to the continued existence of the polar bear prompted a lawsuit from Greenpeace, in conjunction with the Center for Biological Diversity (logo at left), and the Natural Resources Defense Council, alleging that the United States Fish and Wildlife Service (FWS) was violating the Endangered Species Act (ESA) by failing to protect the polar bear and its habitat. The Center had first petitioned the Department of Interior in 2005, requesting that the polar bear be listed as "threatened." Under ESA § 1532(5)(C)(20), a species is "threatened" whenever it is "likely to become an endangered species within the foreseeable future through all or a significant portion of its range." Despite a statutory deadline requiring action within 90 days, years passed with no decision about the polar bear.

Footdragging at the Agency
In 2006, in response to a lawsuit challenging FWS’s inaction, the Department made a preliminary finding that catastrophic climate change is destroying polar bear habitat. Thus, on January 9, 2007, FWS published a proposed rule in the Federal Register listing the polar bear as threatened. The ESA requires that listing decisions be made within one year of publication of the proposed rule. Nonetheless, Interior failed to meet the January 9, 2008, statutory deadline for making a final decision. Why? Maybe because another agency within the Department of Interior, the Minerals Management Service, (MMS) is busy issuing oil and gas leases for vast portions of the polar bears' remaining habitat. Indeed, on January 2, 2008, just days before FWS was supposed to list the polar bear, MMS published the Final Notice of Intent for the Chukchi Lease Sale 193, which will open to oil and gas activities 29.7 million acres of the pristine Chukchi Sea, situated in the Arctic Oean between Russia and Alaska.

The Chukchi Sea is home to 10% of the world’s polar bears. (map credit) Rather than protecting the polar bear, FWS has actually been working to eliminate existing protections of polar bears. Indeed, in June of 2007, FWS proposed exempting the oil industry from the Marine Mammal Protection Act protections of polar bears in the Chukchi Sea. Listing the species under the ESA would make these oil and gas leases much more difficult to issue.

Evidence continues to mount that loss of habitat is threatening the continued existence of polar bears. Indeed, a recent MMS study documents that polar bears are drowning as a result of record low sea ice levels off the coast of Alaska.

Judge Wilken acts

Condemning the delays as unreasonable, Judge Claudia Wilken of the U.S. District Court for the Northern District of California, San Francisco, found for the environmental groups on all issues. She ordered the administration to publish its final decision on polar bear status in the Federal Register by May 15. Reflecting the urgency surrounding the question, Judge Wilken also ordered that the decision take effect immediately, invoking an exception to the ordinary 30-day waiting period before an administrative rule takes effect.

Last month, White House Press Secretary Dana Perino (left) claimed that the lawsuit was "inappropriately" trying to use existing environmental laws, like the Endangered Species Act and the Clean Air Act, to address climate change. The result, Perino said, would be a "regulatory train wreck."

While it is certainly true that the polar bear listing will be the first time global warming will be officially labeled a species' main threat, this statement is outrageous. The Executive Branch has a constitutional duty to “take care that the law be faithfully executed.” It is the administration’s do-nothing policy is the regulatory train wreck. The failure to list the polar bear is not only “inappropriate,” it is inexcusable.
There is no dispute that global warming is threatening polar bear habitat. Kudos to Judge Wilken for forcing much needed regulatory action!

Chillin'

There's something so last-millennium about the news that explorers have planted the Russian flag at the North Pole; to be specific, more than 2-1/2 miles underneath the pole. The move of these latter-day conquistadors would bemuse if the stakes weren't so high.
It's intended to give Russia rights to exploit "oil, gas and mineral reserves" believed to lie in the claimed "vast swathe of territory in the Arctic." The reserves are more accessible, U.S. Coast Guard Academy Professor Scott Borgerson writes, on account of the warming of the Arctic. And Russia's not the only interested state: Borgerson names a half-dozen more that claim interests in the Arctic, and demonstrates that the potential for an ice rush, if you will, calls for some international cooperation.
Eventually there should be a comprehensive Arctic treaty, he writes, and even before that, bilateral agreements.
An obvious route for cooperation is the 1982 U.N. Convention on the Law of the Sea. As posted earlier, however, the United States remains outside that treaty regime, a fact that reduces its leverage on this issue. In May, President George W. Bush called for ratification. But, as in the past, ratification's become a topic of heated debate. Senate Foreign Relations Committee Chair Joseph Biden's among Democrats in favor of ratification, while folks generally supportive of Bush are weighing in on both sides. It remains to be seen whether the support of this President can propel this multilateral treaty through the U.S. Senate.
(photo of flags at North Pole during Robert E. Peary's 1909 expedition (c) 1910 Frederick A. Stokes Co.)