Sustainable Development Law & Policy
Volume 7
Issue 2 Winter 2007: Climate Law Reporter 2007
Article 24
#e Black Hole in the Kyoto Protocol: Was the
Exclusion of Black Carbon Regulation a "Fatal
Flaw"?
John Feldon
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Recommended Citation
Feldon, Jon. “<e Big Black Hole in the Kyoto Protocol: Was the Exclusion of Black Carbon Regulation a “Fatal Law”?” Sustainable
Development Law & Policy, Winter 2007, 60-62, 85.
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INTRODUCTION
C
laiming that the Kyoto Protocol (“Protocol”) was
“fatally flawed in fundamental ways,”
1
on June 2001,
U.S. President George W. Bush simultaneously con-
demned the landmark international agreement against climate
change and announced that the United States would withdraw
from participation in it.
2
The United Nations Framework Con-
vention on Climate Change (“UNFCCC”) drafted the Protocol
in 1997 in order to fight the potentially catastrophic effects of
climate change through an international carbon dioxide (“CO
2
”)
emissions reduction plan.
3
Over 160 nations ratified the Proto-
col. The United States and Australia are the only countries in the
developed world not to participate.
4
While the United States signed the Protocol under the Clin-
ton administration, President Bush withdrew, citing economic
concerns and dismay that large, CO
2
-emitting countries such
as China and India would be
exempt from Protocol emission
restrictions as developing
nations.
5
Particularly troubling,
however, was President Bush’s
assertion that the Protocol’s
strategy itself was “fundamen-
tally flawed.” In the view of the
Bush Administration, the Proto-
col improperly focused on CO
2
emissions to the exclusion of the
greater problems of black carbon
(“BC”) and tropospheric ozone.
6
President Bush implied that
without a plan to limit BC
efforts, curbing worldwide CO
2
emissions is not sufficient to
address global warming.
If the Bush Administration’s assertion is true, the implica-
tions are staggering. Could it be possible that the countries of the
world had come together and devised a way to address one of the
most urgent global environmental concerns of the century, only
to completely misidentify the nature of the problem? Equally
important is to evaluate whether or not the Bush Administra-
tion’s assertion is justified. Emerging evidence indicates that BC
does play a significant role in contributing to global climate
change. This article argues that the Kyoto Protocol is, and will
continue to be, a powerful force against climate change whether
or not it addresses BC. While BC is unquestionably a powerful
contributing factor to climate change, CO
2
remains the largest
contributor to the problem, and a long-term solution requires
CO
2
reductions as soon as possible.
7
If the Kyoto Protocol can
be amended to incorporate measures to reduce BC emissions
without alienating participating countries, then it is ideal to do
so. Nonetheless, the overall mission of the Protocol remains
sound, even in the face of new information about other con-
tributing factors to climate change.
WHAT IS BLACK CARBON, AND
WHY IS ITAPROBLEM?
BC in the atmosphere consists of incompletely burned,
microscopic particulate matter resulting from inefficient com-
bustion.
8
Specifically, when carbon is burned to generate energy
and heat the burning process also produces CO
2
and BC emis-
sions; the amount of matter remaining depends upon how com-
pletely the carbon is burned.
9
If the process does not burn away
all solid matter, or if the byproduct is not sequestered, the result-
ing particulates of solid carbon become atmospheric BC.
BC is not only a byproduct of power production. Addition-
ally, in developed countries the
primary source of BC is from
industrial pollution and motor
vehicle emissions.
10
Less devel-
oped nations mainly produce
BC by burning sooty fuels,
using wood-burning stoves and
heaters, and clearing land by
burning crops and forests.
11
Industrialized countries release
more CO
2
than BC, because
their technology allows them to
burn carbon with high effi-
ciency.
12
On the other hand, half
of the world’s atmospheric BC comes from the burning of fields
and forests; 30 percent comes from residential burning of coal,
firewood, and dung; and ten percent comes from diesel
engines.
13
For this reason, the worldwide BC problem rests
largely on developing nations.
PROBLEMS WITH BLACK CARBON
BC causes a variety of health problems if inhaled, including
lung disease, asthma, heart disease, and cancer.
14
The estimated
health cost of particulate pollution in industrialized countries
ranges from U.S. $200,000 to $2.75 million per ton, per year.
15
Further perspective is given by a figure released by the World
Health Organization that air pollution accounts for the deaths of
2.7 million people annually.
16
THE BIG BLACK HOLE IN THE KYOTO PROTOCOL:
WAS THE EXCLUSION OF BLACK CARBON REGULATION A “FATAL FLAW”?
by Jon Feldon*
*Jon Feldon is a JD candidate, May 2007, at American University Washington
College of Law.
Emerging evidence
indicates that BC does
play a significant role in
contributing to global
climate change.
61
S
USTAINABLE DEVELOPMENT LAW & POLICY
Atmospheric BC also affects weather patterns. Unlike
greenhouse gasses, which trap heat rising from the earth’s sur-
face, atmospheric BC, visible as haze or smog, or incorporated
into clouds, absorbs incoming sunlight due to its dark color. BC
has the effect of cooling regions directly below it while increas-
ing the net temperature of the earth.
17
These changes in temper-
ature destabilize regional weather patterns.
18
For example,
NASA scientists link increasing droughts in northern China and
flooding in southern China to atmospheric BC.
19
BC’s role in climate change occurs on two levels. Directly,
BC’s dark coloration absorbs heat that would otherwise escape
the atmosphere into space.
20
BC also has several indirect con-
tributory effects. Atmospheric BC can be incorporated into
clouds, darkening them, and causing them either to absorb the
40 to 90 percent of solar radiation that they would otherwise
reflect
21
or to overheat and burn away entirely.
22
Either result
prevents clouds from keeping the planet cool.
23
Unlike CO
2
,
which can stay in the atmosphere for 50 to 200 years, BC only
stays aloft for a few weeks or months.
24
Unfortunately, once out
of the air, BC can collect on ice, snow, mountains, and glaciers.
25
The darkened snow and ice have a reduced albedo, or reflectiv-
ity, resulting in faster melting
and less sunlight reflected out of
the atmosphere.
26
Including all
the different ways BC interferes
with Earth’s heat loss, experts
estimate that BC causes more
than 25 percent of all observed
global warming. When com-
bined with methane (“CH
4
”) and
other pollutants, these particu-
lates account for least as much
global warming as CO
2
.
27
THE KYOTO PROTOCOL
The Kyoto Protocol is an
international agreement made under the UNFCCC at the third
Conference of the Parties
28
whereby 165 member nations agreed
to reduce their emissions of CO
2
and other greenhouse gases.
29
Under the Kyoto Protocol, developed member nations agree to
reduce their greenhouse gas emissions by an average of five per-
cent below their 1990 emission levels.
30
Developing nations do
not have to reduce their emissions, but can participate in the
Clean Development Mechanism (“CDM”). The CDM enables
developed member countries to invest in emission-reducing pro-
grams in developing countries in exchange for credits that count
towards their emission reduction goals.
31
Although many
national governments agreed to address climate change at the
1992 United Nations Conference on Environment and Develop-
ment in Rio de Janeiro, the Kyoto Protocol is the first interna-
tional agreement to protect the environment that is actually
binding and enforceable.
32
BC emissions were not considered
under the Kyoto Protocol, largely due to a lack of understanding
at the time about the role that aerosolized BC plays in accelerat-
ing climate change.
33
Recently, the United Nations Intergovernmental Panel on
Climate Change released the results of a six-year study of global
warming.
34
The study shows average global temperatures could
rise by 1.5 to 5.8 degrees Celsius within this century, and that the
changes are 90 percent likely to have been caused by human
activity.
35
To prevent or mitigate permanent environmental dam-
age, a strong, effective international effort will be necessary.
Currently, the Kyoto Protocol is the only binding international
agreement reflecting the world’s reaction to this problem.
36
With
the Protocol set to expire in 2012, the issue of whether or not the
agreement is irredeemably flawed by not regulating BC is criti-
cally important.
THE ARGUMENT FOR INCLUDING BLACK CARBON
IN
THE KYOTO PROTOCOL
BLACK CARBON SIGNIFICANTLY CONTRIBUTES
TO
CLIMATE CHANGE
The primary argument that the Kyoto Protocol mishandles
global warming lies in the fact that BC contributes significantly
to global warming, but is not addressed by the Protocol’s terms.
Stanford University Professor Mark Z. Jacobson states that
reducing BC levels “may slow global warming more than may
any emission reduction of CO
2
or CH
4
for a specific period.”
37
Studies conducted by Jacobson
and others show that BC warms
air much more than CO
2
does,
per square unit.
38
Ignoring BC
could be dangerous, because
even though BC is less common
in the atmosphere than carbon
dioxide, governments could do
more harm than good if they
increase the release rate of BC
in their attempts to decrease
CO
2
emissions. For example, tax
laws in the European Union (“EU”) favor diesel vehicles
39
because they get 25 to 35 percent better mileage while emitting
less carbon dioxide than gasoline cars.
40
But diesel vehicles
release much more BC than gasoline vehicles.
41
If the Bush
Administration and Jacobson are correct, the Kyoto Protocol
resulted in European policies that may actually encourage global
warming.
REDUCING BLACK CARBON EMISSIONS WILL
RESULT IN MORE IMMEDIATE EFFECTS
A second argument against a Kyoto Protocol without BC
regulations is that BC emission cuts are much more reasonably
accomplished, and will result in more immediately noticeable
effects.
42
Whereas CO
2
stays in the atmosphere, trapping heat
for decades, BC remains aloft for days or weeks at the most.
43
Reduced BC production would have climate and health benefits
right away, while lowering CO
2
emissions will not have notice-
able effects for decades.
44
A notable proponent of this argument
is Dr. James Hansen, head of the Goddard Institute for Space
Studies at NASA. He believes that CO
2
cuts are unreasonable for
modern society whereas BC reductions can easily be achieved
Black carbon’s dark
coloration absorbs heat
that would otherwise
escape the atmosphere
into space.
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with current technologies.
45
Reducing BC, Hansen says, would
give policy-makers a much easier sell to their constituents, who
could appreciate the tangible benefits of reducing BC in their
daily lives.
46
Moreover, countries like China, exempt under the
Kyoto Protocol as a developing nation, could be required to meet
BC reduction standards, because the technology to do so is avail-
able and affordable. Reducing BC would also improve societal
health.
47
Hansen argues that it would be better to resume focus-
ing on CO
2
emissions in the future, when technology will allow
for realistic and significant CO
2
emission reductions.
48
THE PROBLEMS WITH ADDING BC REGULATIONS
TO THE
KYOTO PROTOCOL
A COMPLICATED SCENARIO
Despite the role that BC plays in climate change, and
despite the benefits to reducing BC emissions, there are a few
problems with declaring the Kyoto Protocol a failure based on
the BC issue. For one, BC and other contributory substances
have extraordinarily complex interactions which are not yet
completely understood.
49
For example, BC is virtually always
accompanied by organic carbon (“OC”), a white soot-like sub-
stance that reflects light and heat away from the earth and pro-
tects clouds and glaciers from the effects of BC darkening.
50
While most scientists agree that substances like BC should be
reduced wherever possible, no one yet knows how much OC off-
sets the problems caused by BC.
51
By contrast, scientists have
clearly established that CO
2
produces more global temperature
increase than any other substance, including BC.
52
Therefore,
reducing CO
2
emissions should be the primary focus because its
role in climate change is so prominent and so clearly under-
stood.
53
Even though the Kyoto Protocol does not address BC,
the agreement has already begun to see progress in reducing
CO
2
emissions worldwide.
LOGISTICAL ISSUES
While the EU might be misguided in their encouragement
of diesel engines, the practice has worked to reduce net EU CO
2
emissions. Revamping regulations now might do more harm in
terms of CO
2
emissions than good in terms of BC output. Simi-
larly, the areas where BC is produced in the highest quantities
(developing countries) are also areas where emissions quotas
would be difficult, if not impossible, to meet.
54
True, cities pro-
duce a great deal of BC, but comparatively, the planet’s highest
producers of atmospheric BC are poor populations in China,
India, South America, and the former Soviet Union who use
domestic wood burning stoves for cooking and heating and uti-
lize slash and burn agricultural techniques.
55
In countries where
older technologies for heating, cooking, and land-clearing pre-
vail, efforts to address BC issues are unlikely. By contrast,
focusing on CO
2
has the advantage of requiring the most from
those with the most capacity to reduce emissions today: devel-
oped nations.
CONCLUSION
The Kyoto Protocol is not “fatally flawed,” nor is it perfect.
BC is a large contributor to climate change. However, CO
2
is as
much, if not more, of a factor as well. Ideally, the international
community would work together to reduce output of both.
Unfortunately, international agreements are difficult to initiate
and complex to enforce. In this context, the ratification of a bind-
ing agreement which imposes costs on participating nations in
the short-term is a highly respectable achievement in its own
right. Incorporating BC regulations into the Kyoto Protocol is an
excellent idea — provided that member nations would actually
comply with them, and that such requirements would not hamper
the larger goal of reducing the number one long-term cause of
global warming, CO
2
. Success will come with worldwide con-
sensus that a BC problem exists and that the countries best
equipped to handle the issue should take the lead in addressing
it. The processes that affect climate change are complicated. Any
effort to address the problem, even one that does not account for
absolutely every factor, should be commended rather than dis-
counted.
1
Press Release, President Bush Discusses Global Climate Change (June 11,
2001), available at http://www.whitehouse.gov/news/releases/2001/06/
20010611-2.html (last visited Feb. 5, 2007) [hereinafter Bush].
2
Bush, id.
3
Kyoto Protocol to the United Nations Framework Convention on Climate
Change art. 3(1), Dec. 10, 1997, 37 I.L.M. 22.
4
UNFCCC website, Parties to the Kyoto Protocol,
http://maindb.unfccc.int/public/country.pl?group=kyoto (last visited Feb. 5,
2007).
5
Bush, supra note 1.
6
Bush, supra note 1.
7
Press Release, Despite Lower Carbon Dioxide Emissions, Diesel Cars May
Promote More Global Warming than Gasoline Cars (Oct. 21, 2002), available
at http://www.agu.org/sci_soc/prrl/prrl0233.html (last visited Feb. 13, 2007)
[hereinafter Diesel Cars].
8
Goddard Space Flight Center, Black Carbon Contributes to Droughts and
Floods in China, Sept. 26, 2002, available at http://www.gsfc.nasa.gov/
Endnotes: The Big Black Hole in the Kyoto Protocol
topstory/20020822blackcarbon.html (last visited Feb. 13, 2007).
9
Eric Redman, A Dirty Little Secret: Soot: The Carcinogenic, Climate-
Changing Grime No One Talks About, JUN LEG. AFF., May/June 2005, at 49.
10
Goddard, supra note 8; see generally BurningIssues.org, A Project of Clean
Air Revival, Inc., http://burningissues.org (last visited Feb. 5, 2007).
11
The Oregonian, Black Carbon Major Suspect in Warming Trend (Nov. 24,
2006) available at http://www.oregonlive.com/printer/printer.ssf?/base/news/
1164007549115190.xml (last visited Feb. 5, 2007).
12
Goddard, supra note 8.
13
Redman, supra note 9, at 49.
14
BurningIssues.org, supra note 10.
15
Diesel Cars, supra note 7.
16
Diesel Cars, supra note 7.
17
Oregonian, supra note 11.
Endnotes: The Big Black Hole in the Kyoto Protocol
on page 84
85
S
USTAINABLE DEVELOPMENT LAW & POLICY
ENDNOTES: WORLD NEWS
continued from page 72
18
Br. for the Resp’t, id. at 13, 14, 18.
19
Br. for the Resp’t, id. at 20, 26, 31.
20
Br. for the Resp’t, id. at 36.
21
Br. for the Resp’t, id. at 39.
22
Br. for the Resp’t, supra note 17, at 45.
23
Transcript of Oral Arguments, Massachusetts v. EPA, No. 05-1120 (S. Ct.
Nov. 29, 2006), 2006 WL 3431932.
24
Transcript of Oral Arguments, id. at 4, 5.
ENDNOTES: LITIGATION UPDATE
continued from page 68
17
UN, id.
18
Climate Change, supra note 13.
19
MONITORING, supra note 12.
20
Yahoo! News Canada, Dire Warnings From China’s First Climate Change
Report (Dec. 27, 2006), available at http://ca.news.yahoo.com/s/afp/061227/
world/china_environment_climate_warming_sched_lead_1 (last visited Feb. 9,
2007) [hereinafter Dire Warnings].
21
Dire Warnings, id.
22
Dire Warnings, id.
23
Dire Warnings, id.
24
Planet Ark, Climate Change Could Fuel China’s Forest Fires (Jan. 10, 2007),
available at http://www.planetark.com/dailynewsstory.cfm/newsid/39783/
story.htm (last visited Feb. 11, 2007).
25
Shanghai Daily, China to Set Up UN Emissions-Trading Hub (Feb. 7, 2007),
available at http://www.shanghaidaily.com/sp/article/2007/200702/20070207/
article_305561.htm (last visited Feb. 9, 2007) [hereinafter Trading Hub].
26
Trading Hub, id.
27
Trading Hub, id.
28
The Australian, Howard a climate convert (Jan. 26, 2007), available at
http://theaustralian.news.com.au/story/0,20867,21119912-601,00.html?from=
public_rss (last visited Feb. 9, 2007) [hereinafter Howard].
29
Howard, id.
30
The New Zealand Herald, Government Watching Australia’s Carbon Trading
25
Transcript of Oral Arguments, id. at 10.
26
Transcript of Oral Arguments, id. at 12.
27
Transcript of Oral Arguments, supra note 23, at 23.
28
Transcript of Oral Arguments, supra note 23.
29
Transcript of Oral Arguments, supra note 23, at 35.
30
Transcript of Oral Arguments, supra note 23, at 36.
31
Transcript of Oral Arguments, supra note 23, at 44-45.
32
CNN News, Global Warming Debate Hits Supreme Court (Nov. 29, 2006),
available at http://www.cnn.com/2006/TECH/science/11/29/scotus.carbon.
dioxide/index.html (last visited Feb. 9, 2007).
18
Oregonian, supra note 11.
19
Goddard, supra note 8.
20
Goddard, supra note 8.
21
James Hansen et al., Global Warming in the Twenty-First Century: An Alter-
native Scenario, 97 PROCEEDINGS NAT. ACADEMY SCI. 9875, 9880 (2000).
22
Chien Wang, MIT Joint Program on the Science and Policy of Global
Change, A Modeling Study on the Climate Impacts of Black Carbon Aerosols,
(March 2002) available at http://web.mit.edu/globalchange/www/MITJP-
SPGC_Rpt84.pdf (last visited Feb. 5, 2007).
23
Andrew C. Revkin, Debate Rise Over a Quick(er) Climate Fix, N.Y. TIMES,
Oct. 3, 2000, available at http://www.nytimes.com/2000/10/03/science/03
GREE.html (last visited Feb. 5, 2007).
24
Diesel Cars, supra note 7.
25
James Hansen & Larissa Nazarenko, Soot Climate Forcing via Snow and Ice
Albedos, 101 PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES 423
(Jan. 2004).
26
CBS News, Soot Blamed For Global Warming (Dec. 23, 2003), available at
http://www.cbsnews.com/stories/2003/12/23/tech/main589926.shtml (last vis-
ited Feb. 13, 2007).
27
Redman, supra note 9, at 49.
28
Kyoto Protocol, supra note 3.
29
Kyoto Protocol, supra note 3.
30
Kyoto Protocol, supra note 3.
31
Kyoto Protocol, supra note 3.
32
Reuters, What is the Kyoto Protocol (Jan 30, 2007), available at http://today.
reuters.co.uk/news/articlenews.aspx?type=topNews&storyid=2007-01-30T0
72036Z_01_HO026384_RTRUKOT_0_TEXT0.xml&src=013007_0327_
DOUBLEFEATURE_environment (last visited Feb. 5, 2007).
33
Mark Z. Jacobson, Control of Fossil-Fuel Particulate Black Carbon and
ENDNOTES: THE BIG BLACK HOLE IN THE
KYOTO PROTOCOL
continued from page 62
Organic Matter, Possibly the Most Effective Method of Slowing Global
Warming, 107 J. OF GEOPHYSICAL RES. 16.1 (2002), available at http://www.
stanford.edu/group/efmh/fossil/fossil.pdf (last visited Feb. 3, 2007).
34
The Guardian, Scientists Offered Cash to Dispute Climate Study (Feb. 2,
2007), available at http://www.guardian.co.uk/international/story/0,,2004
230,00.html?gusrc=rss&feed=11(last visited Feb. 13, 2007).
35
The Guardian, id.
36
Greenpeace.org, About the Kyoto Protocol, Debate Rise Over a Quick(er)
Climate Fix, http://www.greenpeace.org/australia/issues/climate-change/
solutions/political/kyoto-protocol (last visited Feb. 5, 2007).
37
Jacobson, supra note 33.
38
Diesel Cars, supra note 7.
39
Jacobson, supra note 33.
40
Diesel Cars, supra note 7.
41
Diesel Cars, supra note 7.
42
Revkin, supra note 23.
43
Redman, supra note 9.
44
Redman, supra note 9.
45
Revkin, supra note 23.
46
Revkin, supra note 23.
47
Oregonian, supra note 11.
48
Oregonian, supra note 11.
49
Oregonian, supra note 11.
50
Redman, supra note 9.
51
Redman, supra note 9.
52
Bush, supra note 1.
53
Hansen & Nazarenko, supra note 25.
54
Redman, supra note 9.
55
David Streets and Tami Bond, The Emergence of Black Carbon into the Cli-
mate Policy Arena, American Geophysical Union, (Spring 2002), available at
http://adsabs.harvard.edu/abs/2002AGUSM.A42C..02S (last visited Feb. 5, 2007).
Natural Resources, available at http://docs.nrdc.org/globalWarming/glo_
06031401A.pdf (last visited Feb. 10, 2007).
8
See, e.g., The Greening of America; Climate change, ECONOMIST, Jan. 27, 2007.
9
As a practical matter, a state would likely do this by giving allowances to a
trustee on behalf of customers. The trustee would auction the allowances to
power plant owners and use the sale proceeds to promote efficiency or for other
public purposes as directed by a state agency.
10
ICF Consulting, supra note 4.
11
R. Neal Elliot et al., Impacts of Energy Efficiency and Renewable Energy on
Natural Gas Markets, American Council for an Energy Efficient Economy,
Sept. 2003, available at http://www.aceee.org/energy/natgassummaryreport.pdf
(last visited Feb. 10, 2007).
