Legally binding? It's so 2009

Washington's climate policy analysts from environmental groups are quietly abandoning -- at least temporarily -- the once sacrosanct notion that nations must agree to legally binding emission targets.

Several experts with ties to the Obama administration either personally or through their organizations said in recent interviews they don't view a new global treaty as likely or even desirable by the time countries meet in December for the next U.N. climate summit in Cancun, Mexico.

Action is the new buzzword, it seems. The climate conference in Copenhagen last year ended in chaos -- but still with promises from the world's major global warming polluters to slash emissions. Policy leaders now say they want negotiators to focus on achieving goals, not sparring over ideologically fraught legal language.

"What we actually need is countries saying they'll take action, countries putting in place domestically enforceable sets of actions and a set of mechanisms to hold countries accountable," said Jake Schmidt, international climate policy director for the Natural Resources Defense Council.

"The one thing I think we don't need is a bunch of commitments that nobody meets," he said.


"We just have to get some implementation done," agreed Rob Bradley, director of climate policy at the World Resources Institute, the Washington-based think tank where U.S. deputy envoy Jonathan Pershing worked before joining the administration.

"What we have never done before is delivered," Bradley said. "A legally binding agreement is not ultimately a goal in and of itself. The question we need to ask ourselves is: Are countries going to act?"

Moving the goal posts, but the game's the same

Getting a legally binding agreement -- a treaty among nations -- has long been the top goal of climate change activists, and many insisted that it be the goal of last year's climate summit in Copenhagen.

The 1997 Kyoto Protocol already compels industrialized countries to cut greenhouse gas emissions, but the United States is not a party to it. Convincing America to climb aboard, it is generally acknowledged, will take a new type of agreement that treats industrialized and fast-growing, big-polluting countries that also are prime economic competitors like China and India on an equal footing.

Developing countries, though, are loath to give up Kyoto because it enshrines the idea that poorer countries need only take voluntary measures unless wealthy ones pony up financial assistance.

That's the impasse -- one that leaders found impossible to overcome in Copenhagen. Instead of emerging with a new legally binding agreement, they created the Copenhagen Accord, under which countries make specific emission pledges. While the promises are subject to international review, governments suffer no consequences if they fail to keep their promises.

"Everybody's saying they want legally binding, but there's at least four or five mutually contradictory visions of what legally binding means," said Alden Meyer, director of strategy at the Union of Concerned Scientists.

Environmental activists worldwide blasted the Copenhagen Accord because it lacked enforcement teeth. Intergovernmental Panel on Climate Change Chairman Rajendra Pachauri and others have called for a legally binding treaty at the next summit.

Hard to sell in Europe

But in Washington, many are now arguing that rather than spend more time dancing in that minefield, nations should focus on what really counts: reducing or scaling back the growth of global warming pollution.

"We may need to put off decisions on legally binding until the dynamics change, and there is both more agreement on the substance and more trust between the major countries in the negotiations," Meyer said.

So far, the Obama administration continues to declare support for a binding treaty, as long as nations like China and Brazil are held to the same legal standards. But the increasingly loud drumbeat from respected analysts could provide important cover for U.S. officials if America once again fails to bring a signed climate bill to the next U.N. summit.

It's a position that isn't likely to go over well with other countries, particularly in the developing world or the European Union. At a recent meeting of climate policy experts, E.U. leaders said a legally binding agreement is critical to the development of a strong carbon market. Moreover, they noted it was a tool to prod the still-stalling United States into action.

"We pursue a legally binding treaty because that is the strongest expression of the determination of the international community to act on climate change," Henriette Bersee, environment counselor at the Royal Netherlands Embassy, said in a statement.

"While preventing free ridership, it provides a long term international framework for international cooperation and public and private investments in a low carbon future," she wrote. "One can argue that the enforcement of international treaties has its limits, but that does not mean that in our world international obligations have no meaning. They have."

The diplomatic version of 'unobtanium'?

U.S. climate advocates say they still believe a global treaty is critical. But, they argue, the reality is that Copenhagen didn't leave countries on a path toward developing one, and calling for a legally binding agreement by December's summit in Mexico only raises unattainable expectations.

"A realistic deadline will help," said Elliot Diringer, vice president for international strategies at the Pew Center on Global Climate Change. In crafting Kyoto, he noted, negotiators developed the treaty language before they worked on the tools for helping countries develop low-carbon economies. This time, he said, he hopes to see the reverse: countries building up toward a legal agreement they can actually fulfill.

Besides, he pointed out, "There isn't any agreement that we're going for in Mexico, so how do we get there?"

Nigel Purvis, a top Clinton administration climate negotiator, agreed. "Nations should strive for a legally binding agreement, but that's not going to be achieved soon," he said.

Pushing countries -- particularly America -- to cut carbon is itself no small feat. Obama promised the world the United States would reduce greenhouse gas output about 17 percent below 2005 levels in the coming decade. But with the Senate stalled on a cap-and-trade bill, the administration remains far from being able to show that it can keep that pledge.

Sen. John Kerry (D-Mass.) recently said he doesn't see a new treaty coming to pass until the Senate passes stalled cap-and-trade legislation.

"A lot will depend on what we do," Kerry told reporters. "The United States is being looked to for leadership here, and we've just got to step up. How that proceeds will be determined somewhat by our actions here. If the United States doesn't move, I don't see a treaty in the cards."

Still, analysts said they believe members of Congress are still more likely to pass domestic legislation addressing climate change than to sign onto any global treaty.

Bradley, of the World Resources Institute, concluded: "It's easier to get them to act than agree to legally binding."

Senior reporter Darren Samuelsohn contributed.

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