Torquing the Levers of International Power

Abstract

The world now is at its climate’s environmental “tipping point” as it attempts to mobilize efforts to redress global warming; after which our ability to halt climate temperature below 2 degrees Centigrade (3.4 degrees Fahrenheit) is unreachable. International climate agreements have operated imperfectly: The 1997 Kyoto Protocol concluded its operative phase in 2012, and thereafter three major covered world powers– Russia, Japan and New Zealand -- refused to agree to any subsequent obligations. It remains unclear whether the levers of international power can be moved to put in place an aggressive, mandatory set of world climate restrictions to reduce rampant emissions of greenhouse gases.

The technology exists to dramatically mitigate carbon emissions. The most used mechanism internationally and in the European Union to promote quick implementation of mitigating requirements, feed-in tariffs (FiTs), has been declared fundamentally unconstitutional when mandated by U.S. states. When misused, U.S. states are subject to pay challengers’ attorneys’ fees when challenged. Even though FiTs are legal in European Union countries, the record demonstrates flawed and uneconomic use of these mechanisms, causing severe financial hemorrhage in Germany, Italy and Spain, the primary countries aggressively employing FiTs.

Renewable Portfolio Standards (RPS) are the alternative international mechanism employed by 29 U.S. states to maneuver mitigating power development. When maneuvered in a discriminatorily fashion, the RPS levers have resulted in successful constitutional attack on U.S. RPS programs. RPS programs are now gaining popularity internationally.

Each of these world carbon reduction levers operates differently, exerts distinct economic impacts, and now confronts different legal barriers in different national systems of law. This article identifies, compares, contrasts, and torques these levers of international power. This

article compares U.S. to international experiences, and analyzes why these same techniques have been held unconstitutional in the U.S. when implemented by California and other states. And even though legal in Europe, this article carefully analyzes the related financial and legal problems that their implementation created in Germany, Italy, and Spain.