Vanderbilt Lawyer - Volume 37, Number 1

No Free Passes

2008 graduate Justin Leck's paper proposes a change that might encourage the United States to ratify the Kyoto Protocol.

by Grace Renshaw Justin Leck, '08

When students in Professor Will Martin's international environmental law class conducted a mock Kyoto Protocol negotiation last fall, the teams representing various countries found themselves struggling with a fundamental element of the protocol. Countries are divided into two simple categories: Annex 1 (developed) and Annex 2 (developing) countries. Developed countries that ratify the protocol voluntarily obligate themselves to reduce their greenhouse gas emissions and to submit an annual inventory of their emissions after they ratify the protocol.

While developing countries, a category that includes India and China, do not commit to any restrictions on their greenhouse gas emissions, they do agree to the terms of the protocol's Clean Development Mechanism, which allows developed countries to use investments in projects that reduce emissions in a participating developing country as an alternative to undertaking similar but more costly emissions reductions within their own borders.

As members of the class representing different countries attempted to reconcile the differing priorities and concerns of countries at all stages of industrial development, 3L Justin Leck proposed an innovative solution: increasing the number of categories into which countries are divided. "A two-tier system creates inequities and leaves lots of countries with free rides," he explains. "I realized an agreement could not be reached until something different was done about India and China. Everyone agreed that they shouldn't have the same obligations as the U.S. or E.U. countries, but everyone also felt they shouldn't go completely unchecked."

Leck proposed that the number of categories into which countries at various stages of development are divided be increased to four, and that responsibility for reducing greenhouse gas emissions be parceled out along a broader continuum. He also provided an objective method of categorizing countries. "I developed a calculation that ranks every country in the world according to their emissions per capita and their Gross Domestic Product (GDP) per capita, and I used it to rank countries from 1 to 177." According the Leck's formula, the United States ranked second among developed countries, right behind the first-ranked United Arab Emirates. India, China and Brazil fell into an intermediate category on Leck's continuum.

Leck's proposed solution received such a positive reception that Professor Michael Vandenbergh agreed to supervise an independent research project to allow him to develop his idea during his final semester of law school. In May, Leck's paper, "The Kyoto Continuum: Expanding the Annex Classifications of the Kyoto Protocol," won the Jon E. Hastings Memorial Award, an annual writing competition sponsored by the Tennessee Bar Association's Environmental Law Section. Leck plans to continue working with Professor Vandenbergh to refine the paper for submission to scholarly journals as well as entering it in another environmental writing competition sponsored by Harvard Law School that deals specifically with proposals for a post-Kyoto framework.

"The main part of this paper involved developing the continuum and dividing every country in the whole world into the categories," Leck says. "The framework I've proposed provides the foundation of a possible policy, because it doesn't put all of the responsibility on just a few nations while leaving the rest of the world with a free pass. Now I want to focus more on creating the proper incentives for developed and undeveloped countries to ratify this new system. The countries that can afford to help pay to fix the problem - and are more responsible for causing the problem - should bear more of the burden. But if the whole burden rests on just a few countries, as it does under the current climate treaty, those countries don't have much of an incentive to ratify such a treaty or to comply with its terms. And since developing countries currently have no responsibilities under the Kyoto Protocol, the proper incentives must be installed to encourage them to adhere to the new restrictions and limitations the new system imposes."

Leck, who graduated this May, will join Withers Bergman in New Haven, Connecticut as an associate this fall.