When 1 + 1 No Longer Equals 2: The New Math of Legal 'Additionality' Controlling World and U.S. Global Warming Regulation

81 Pages Posted: 12 Sep 2010  

Steven Ferrey

Suffolk University Law School

Date Written: September 10, 2010

Abstract

Both U.S., E.U. and Kyoto carbon regulation have imposed a new requirement of “additionality” to qualify any offset credit within their carbon cap-and-trade regulation regimes. There are many different meanings of “additionality,” none of which are universally accepted, and some of which are controversial. This creates a new legal currency for projects participating in climate change control efforts. This new currency of “additionality” has become particularly difficult for certain projects, and can frustrate the achievement of some government goals. In the U.S., renewable power is prevented from creating carbon offsets because it is not deemed “additional.” World-wide, preservation of forests, a primary source of carbon absorption and reduction, is not deemed “additional” and disqualified from credit or participation.

“Additionality” has become the new meta-value for cap-and-trade climate change credit creation and trading. And on it hinges much of the prospect for future success of climate change control in real time. This article looks at the new legal concept of “additionality,” its inconsistent definition and application, and U.S. law in California and RGGI (East Coast states) compared against E.U. and Kyoto requirements. The awkward exclusion of renewable power from U.S. carbon offset programs is examined. Regulatory and legal nuances are examined, and court decisions analyzed to determine how “additionality’ shapes the future of climate control as the new legal variable.

Suggested Citation

Ferrey, Steven, When 1 + 1 No Longer Equals 2: The New Math of Legal 'Additionality' Controlling World and U.S. Global Warming Regulation (September 10, 2010). Minnesota Journal of Law, Science & Technology, Vol. 10, p. 591, 2009; Suffolk University Law School Research Paper No. 10-48. Available at SSRN: https://ssrn.com/abstract=1675065

Steven Ferrey (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

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