And what was this Dialogue supposed to do? Your guess is as good as mine, but here’s one place to start: the Trade-Related Aspects of Intellectual Property Rights accord, better known as TRIPS.

TRIPS intimately concerns climate change because intellectual property rights regimes might prevent developing countries from accessing the high technology that could reduce their emissions. For example, supercritical and ultra-supercritical coal technologies have significantly lower emissions than regular plants, and since India is going to rely on coal for a big chunk of its ongoing energy needs, it obviously makes sense for it to go with the best available supercritical technology.

But maybe it won’t be able to, because various developed country firms own the patents to this technology, and might object even if Indians developed new processes utilizing this technology. Oh yes, they would sell: at an exhorbitant price.

What to do? That’s where TRIPS comes in. Theoretically, American technology patent holders might argue that under TRIPS, India’s patent enforcement authority should enforce their U.S. patents. But here’s the catch: any objection to an Indian failure to enforce TRIPS must be made by the U.S. Government at the WTO, not the patent-holder in a private right of action.

You can see where this is going. The Dialogue could establish protocols concerning:

• When the United States would bring such an action and when it would not;
• how negotiations for compensation should proceed and under what basis, and;
• anything that India might provide as emissions reductions in return for U.S. forbearance.

The point is that there is a negotiating space here for the United States and India to achieve a win-win on climate outside the Kyoto/Copenhagen mosh pit. Essentially, the Dialogue could work toward some sort of compulsory licensing scheme that could compensate U.S. patent holders more quickly (although less lucratively), transfer key technology, and give New Delhi incentives to work on reducing their own emissions in other ways.

These opportunities abound, about which more to come. But TRIPS is a good place to start.

President Barack Obama and Prime Minister Singh of India walk along the Cross Hall of the White House towards the East Room for the arrival ceremony.Photo and caption: The White House

Does it mean anything? Maybe.

Essentially, it provides for some technical assistance to improve governance capacity and scientific knowledge, and some new initiatives to foster R & D. It also takes the sensible position that the developed countries will adopt emissions reductions targets while the developing countries will adopt “nationally appropriate mitigation measures.” The White House press release states in boldface that both President Obama and Prime Minister Singh “resolved to take significant mitigation actions and to stand by these commitments.” In other words, neither side is going to insist on the other doing the politically impossible.

Perhaps the most intriguing initiative in the whole thing appears to be a series of bilateral institutions: the U.S.-India Climate Dialogue, the U.S.-India Energy Dialogue, and the U.S.-India Agriculture Dialogue. Who knows what these things mean. 

But they reflect a realism in the Obama Administration’s climate diplomacy, namely, that putting all their eggs in the Kyoto/UNFCC basket makes little sense. These institutions might mean nothing, but one could have said the same thing about the UNFCC at the beginning. They open up space for the two nations to start discussing ways to take reciprocal and constructive steps to reduce emissions.

Early jobs for the Climate Dialogue might be the discussion of international intellectual property rules that inhibit technology transfer. Another role might be fostering the creation of international sectoral agreements in certain high-emissions industries such as aluminum, steel, and cement.

Obama likes to play a long game, a pattern that the media has proved itself completely incapable of recognizing. And with climate, the game will have to be very long. He has damped down expectations for Copenhagen, and is beginning to build more solid foundations.  I hope we have enough time.

Like any Hollywood actor, and like any politician, Arnold Schwarzenegger likes to talk a good game. And on climate, he talks a lot. He loves to promote inconsequential gab-fests like the Governors Global Summit on Climate Change. But when the rubber hits the road, will he actually, you know, do anything about it?

Whether a bill on his desk gets a signature will tell us whether he is real or all puffery.

That bill is SB 406, by state Senator Mark Desaulnier. SB 406 would allow regional planning organizations to impose a $1-2 extra vehicle license fee in order to assist in regional planning under California’s smart growth law, SB 375.

This is critical, because California cannot meet its emissions-reduction goals unless it reduces emissions from the transportation sector; it cannot reduce emissions from the transportation sector unless it gives transportation dollars to those cities and counties whose land use plans reduce vehicle miles traveled (VMT); and those cities and counties cannot change their land use plans unless they have the personnel to do so, which requires cash. Most cities have substantially slashed their planning staffs because of budget cuts: Los Angeles’ visionary planning director, Gail Goldberg, has had to lay off dozens of people and put on hold her agenda for redoing community plans throughout the city.

Predictably, the right-wing crazies are screaming that a one-dollar-per-year fee increase will mean the end of the Republic.

So what’s it going to be, Governator? Whose side are you on? The Tea Partiers’ or the planet’s? Photo-ops like the Climate Summit don’t mean a damn thing in comparison.

The Second Circuit’s recent decision in Connecticut v. AEP, in which a coalition of state attorneys general sued electric power producers to cap and then reduce their carbon emissions, allows the public nuisance case to proceed and gave the environmental plaintiffs virtually everything they wanted. It should also give pause to those of us tempted to see judges as purely political: it was decided by Judges Peter W. Hall, a George W. Bush appointee from Vermont, and Joseph McLaughlin, a George H.W. Bush appointee from New York. Damn liberals. (The third panel member, one Sonia Sotomayor, is now busy with other things and did not sign the decision.).

A few aspects of the case stand out (aside from the obviously correct decision that a common-law tort suit is not a nonjusticiable political question). Most importantly, the Court’s holding on “displacement,” i.e. whether the Clean Air Act “displaces” the common law suit, actually makes EPA regulations somewhat more likely.

1) The case jumps out for a very expansive ruling on “standing,” i.e., which parties can bring suit. The Second Circuit held not only that states can bring climate change lawsuits (pretty much a slam dunk after Massachusetts v. EPA), but so can municipalities, and even private nonprofits. This is waving a red flag in front of the bull that is Chief Justice John Roberts.

2) The Court held that the suit is properly brought under federal, not state, common law. I have argued that this is a bad idea, because it essentially tells one federal district judge to take large swathes of the power grid into receivership. (My view is that the best tack is to make it a matter of state common law, with individual state Supreme Courts deciding on damages). Ruling this way on the federal v. state question means that lawsuits against automakers, which would have been pre-empted if the case was based on state law, can now go ahead. California’s own lawsuit against the automakers was settled, but other plaintiffs will, like California’s Governor, be bock.

3) By holding that the nuisance claims came under federal law, it had to determine whether the Clean Air Act “displaces” federal common law, thereby making it a dead letter. Dicta in previous decisions suggest that it is far easier for federal law to displace federal common law than it is for the same statutes to pre-empt state law, but there is also contrary dicta, and the Second Circuit used the latter to hold that there was no displacement.

But wait a minute, you might say: didn’t the Supreme Court already hold in Massachusetts v. EPA that EPA has the authority to regulate carbon dioxide? And hasn’t Obama’s EPA already proposed finding that carbon dioxide is a threat to human health?

No matter, replied the Second Circuit: the finding is only “proposed” and in any event, the EPA’s regulation only applies to mobile sources, not stationary sources like power plants. Thus–and here is the kicker–until the EPA actually starts regulating all sources of carbon dioxide, the Court said that it can’t really determine whether or not displacement has occurred.

This holding is potentially significant, because it can put polluters in a real bind. Their normal strategy is to tie up new regulations in the courts for several years–maybe until they can get a more friendly administration. But now, the Second Circuit has told them that the only way to get rid of the public nuisance lawsuit is to let those regulations go into effect. The judges have told the power companies to choose their poison.

To the extent that you think regulation is better than common-law remedies, you should like this posture. Had the Second Circuit just held that the Clean Air Act does not displace the common law, it would have given the power companies no incentive to back off challenging new EPA regulations. The Court has provided them with a sort of carrot to let the rulemaking process run its course. It’s not as strong a carrot as one might like, because the Second Circuit hinted strongly that the Clean Air Act would not displace even if EPA begins to regulate. But it leaves open the possibility.

What now? It would be over-optimistic to claim that the decision will have an immediate impact. But it does help to ratchet up the pressure on those forces opposing federal climate change legislation.