No Meaningful Agreement in Copenhagan. No Surprise.

Let's see if we can grasp the so-called agreement reached in Copenhagan.

1. Many of the Developed Countries (the North) have promised to reduce their greenhouse gas emissions as much as they (comfortably) can in the future. These are not binding commitments; just promises to make a best effort. And, they are all over the place in terms of the cuts they represent compared to past and present CO2 emission levels. A number of Developing Countries (the South, including China) have now promised to mitigate greenhouse gas emissions. Again, nothing binding and wildly inconsistent targets and timetables. And, even if you add up all the promises, you won't come close to getting the world on track to stabilizing greenhouse gas emissions at a (350 - 450 ppm) level by 2050 sufficient to forestall the worst effects of climate change over the rest of the century and beyond.

2. The The North has promised to come up with $30 billion over the next three years to help the South "fight" climate change. It's not clear, though, how this money will be used or where it will come from. Presumably, some of it will be used to reduce CO2 emissions (although it is not clear what the best way to do that is or how such efforts should be prioritized). Some of it will have to be used to help countries adapt to sea level rise, increased storm intensity, periods of draught, adverse effects on biodiversity, and other disasters. (Which forms of adaptation should be pursued, are not clear.) Also, it is not obvious how this money will be administered or who will get it (presumably a disproportionate share should go to the poorest countries in Africa). The North says it will try to raise $100 billion by 2020, but, again, it is not clear where the money will come from, how it will be administered, or who will get it. Finally, these are just informal promises, not binding commitments.

3. There was almost a new forest agreement, but at the end it got dropped. In Kyoto, the question of how to define and protect "sinks" (i.e., forests and oceans that absorb CO2) was not addressed. In Copenhagan, the leaders agreed that halting deforestation is "crucial." Funds to pay countries, like Brazil, to conserve their forests are now supposed to be forthcoming. Note that rich nations like this idea because they want to count the funds they donate for this purpose toward "carbon credits" (thereby reducing the CO2 reductions they have to make in their own countries). It is not yet clear, though, how this system of carbon credits and forest preservation would work.

4. As with all global treaty negotiations, there was a lot of uneasiness when the topic of monitoring and enforcement came up. No country can really force another to do what it doesn't want to do -- even if it has signed a treaty. Countries are sovereign. Most global agreements require countries to report regularly. But, in this case, if the reports don't seem accurate, all the Climate Change Secretariat can do is ask for more information or clarification. It can't double-check the data that countries submit or take independent measurements of its own. The South agreed for the first time, however, to report domestic CO2 emissions on a regular basis. There was some language discussed regarding "provisions for international consultation and analysis." That's as close as we'll get to verification. Some observers had hoped that a new global panel of experts might have access to all monitoring equipment, data and technical specialists in each country so that suspect reports could be verified, but that didn't happen.

5. The so-called "Statement on Temperature" agreed to in Copenhagen says that the nations agreed that any global increase in future temperature should be kept to under two degrees Celsius. Since the new agreements specifies no targets, timetables, enforcement mechanisms, provisions for technology sharing between the North and the South, or ways of enhancing capacity building, it's hard to take such a statement seriously. Saying it should be done, but not saying how, is tantamount to saying nothing.

6. None of the promises made in Copenhagan are binding. Maybe, in the next year or two, a formal Protocol will be drafted that explains how implementation of these various commitments is supposed to happen. Until then, though, we'll be operating under the Rio Climate Change Convention and the Kyoto Protocol.

What happens when the Kyoto agreement runs out in 2012? It appears that we will have no binding targets in place to bring global greenhouse gas emissions to a level (450 ppm? by 2050) needed to forestall dangerous temperature increases. We certainly won't have the level of cooperation between North and South required to tackle the climate change problem over the long haul. Many countries in the South resent the way they were (once again) left out of the last minute wheeling and dealing in Copenhagan. And, tossing money at them, no matter how many billions, without ever agreeing in principal that the North is responsible for the climate change mess we are currently in, just puts off the day we can achieve the global collaboration required to address the problem effectively. Small island nations face total destruction. The numbers of international refugees that will have to move from low-lying coastal areas devasted by meterological events is sure to increase markedly. Unfortunately, nothing will be done to jump-start Southern efforts to achieve more sustainable patterns of development. In short, after Copenhagen, the climate change problem will continue to get worse at an even faster clip.

What should have been done and what can still be done to turn this situation around? First, we need to alter the system of global treaty drafting. Each region of the world should bring together governmental and non-governmental interests on a specific multi-year timetable to produce a draft global treaty that takes account of its needs and sort out its responsibilities for achieving proportionate greenhouse gas mitigation efforts sufficient to reach the required 450 ppm goal by 2050. Two or three countries in each region should immediately mobilize such efforts. Using a common template -- developed by the Climate Change Secretariat which still has a 160+-country mandate -- each regional caucus should spell out ten year incremental reduction targets sufficient to meet the 450 ppm goal by 2050, explicit strategies that countries can use to meet these targets if they have to, the cost implications of meeting such targets (netting out the costs of not meeting them as well), ways reasonable data reporting and verification responsibilities might be met, institutional capacity building requirements, financial forecasts likely to have an impact on implementation, and possible financial or in-kind contributions each country needs or could provide). This needs to be done in eight to ten regions of the world. Each regional "caucus" should draft its suggested version of a new global agreement to meet greenhouse gas reduction requirements responsibly and designate five members from its caucus to participate in a global treaty-making council with responsibility for reconciling the differences among the proposed regional drafts. The Global Congress would have to be mediated by an international panel of skilled facilitators acceptable to all the regions. A Congress of 40 - 50 regional representatives would need a year or more to prepare a meaningful treaty the takes account the differences among all the regional drafts. The final version of the treaty would then be sent to each national legislative body to ratify (not at another Copenhagan-style type fracus). When a minimum of 2/3 of the countries in each region ratifies it, and a minimum of 2/3 of the regions ratify it, it would come into force. If 2/3 of the countries in 2/3 of the regions ratified the treaty, those 130 countries would be in a position to take action (under a range of trade and other treaty regimes) to pressure any and all hold out countries to ratify the new Climate Change treaty. If a county won't sign the new treaty, they ought not be eligible to participate in international trade regimes. If they don't sign, they ought not be eligible for assistance from any multinational banks. Since all the same countries are part of all these regimes, the climate change treaty signers would have sufficient numbers (and through the process I am describing) sufficient legitimacy, to make this happen.

Let's get to work.

Resolving Complaints About Irresponsible Corporations

Corporations are supposed to pay attention to environmental, health, safety, labor, tax, consumer protection, information disclosure, and human rights laws wherever they set up shop. But, we've all seen and heard stories about multinationals guilty of violations in far-away places. They have been charged with allowing unsafe working conditions, blocking legitimate unionization efforts; ignoring environmental and health standards, bribing officials, and turning a blind eye to human rights violations. Developing countries are often ambivalent about holding violators to account: they can't afford to lose the investments and the jobs, and they often lack enforcement muscle even if they want to act.

The 30 member nations in the Organization for Economic Cooperation and Development (OECD) -- mostly developed countries -- have agreed to press multinationals based within their borders to conduct themselves responsibly and abide by applicable laws wherever their far-flung business interests may take them. There are lots of voluntary guidelines that seek to impose similar norms of socially-responsible corporate behavior, but the OECD Guidelines for Multinational Enterprises cover 85% of all foreign direct investment in the world. They also put countries in a quasi-enforcement role which most voluntary codes of ethics don't do.

Every OECD country is required to appoint a National Contact Point (NCP). All complaints about foreign-controlled corporations are channeled through the (home country) NCPs, regardless of where an alleged infraction take place. So, for example, if an environmental group in the Philippines thinks a Dutch-based multinational is operating inappropriately in the Philippines, it can file a complaint with the NCP in the Netherlands. While the NGO can also bring a lawsuit against the Dutch subsidiary in the Philippines, getting the Dutch NCP involved brings an entirely different level of international attention to the complaint. If after an investigation, the NCP in the Netherlands is unable to get the parties to settle their differences, it is empowered to issue a statement of findings -- either giving the company a "clean bill of health" or stipulating (1) that the guidelines have been breached and (2) how the company's conduct must change in the future. Neither the NCP or the OECD can shut a company down or fine them for breaking the rules. However, the NCP might be in a position in some countries to punish a non-complier by forbidding them to do business with their home country government. Any company named as a non-complier by an NCP will take a serious reputational hit (which could affect its market value) in national and international circles.

While the OECD guidelines have been in effect for a number of years, only a few hundred notifications have been sent to NCPs worldwide. Recently, though, the Dutch and Canadian NCPs (in anticipation of an upcoming OECD review of the guidelines) asked whether those of us who help to mediate CSR disputes would offer suggestions for improving the "system." On November 31st, the Dutch and Canadian NCPs met with a group of experienced international dispute resolvers at Harvard Law School to share ideas.

We heard about a number of cases. The Dutch NCP tries hard to resolve complaints behind the scenes without ever having to issue formal statements, but this is not always possible. When they try to mediate disputes, they encounter three sets of obstacles or concerns. The first relates to the roles and responsibility of NCPs. Exactly what authority do they have? The Dutch NCP is independent. While it is appointed by the Dutch government, it is made up of four individuals who represent labor unions, corporations, environmental groups and academia. All other NCPs are government officials. When they receive a notification, they must investigate. But, its hard to gather first-hand evidence in another part of the world with a small staff and a limited budget. Should they proceed if charges are pending in court or being pursued in parallel in another country? Different NCPs think differently about this. How should they decide which standards of performance to use in evaluating specific corporate actions? Does it matter whether the complainant is truly representative of the people or group it alleges to represent? What if the corporate subsidiary being charged is truly independent, and the multinational parent company has little or no control over its behavior?

A second set of obstacles or issues revolves around the rights of companies against whom complaints have been lodged as well as the rights of individuals or groups who file notices of complaint. Should companies that are charged with violations have a right to confront the evidence against them and to cross-examine their accusers? This would pit small NGOs against some of the worlds' richest companies. But, if unsubstantiated charges are publicized and used to blemish the reputation of a company, does an NCP have a responsibility to protect the company's good name? And, if someone files a complaint, is it the responsibility of the NCP to protect them from any kind of retaliation? The current OECD guidelines are not as explicit as they might be; on the other hand, maybe its better to let each NCP proceed in whatever way makes the most sense in its legal and cultural context. Does fairness require that NCPs all over the world keep a record of their findings and decisions, that repeat (global) offenders be held to higher standards or that similar charges be treated in the same way every where?

The third set of questions focuses on the roles and responsibilities of intermediaries trying to resolve CSR disputes. If the NCP promises confidentiality to get people to talk freely, can it then use what it learns if a voluntary settlement is not reached and it has to issue a statement of findings? What ethical code should govern NCP settlement efforts? Should NCPs try to mediate disputes themselves; or, as is the case in the United Kingdom, should they hire professional mediators who are not government employees? Is it really possible to create a wall between one part of an NCP that is trying to settle a dispute and another that has to pursue its investigatory obligations and issue a formal statement of findings?

As more groups around the world find out about the OECD system, and the number of notifications increases, it will be important to have effective dispute resolution procedures in place. You should contact the NCP in your country. Offer comments and suggestions (by January 25, 2010) that can be incorporated into the upcoming review of the OECD guidelines. You can view the guidelines at www.oecd.org. You also might want to read the report prepared by OECD Watch entitled Five Years On: A Review of the OECD Guidelines and National Contact Points, 2005 available at http://foci.org/en/resources/publications/economic-justice-resisting-neoliberalism/2000-2007/pagesfiveyears.pdf.view.

Harmonizing Science, Policy and Politics

At MIT, we are training Science Impact Coordinators (SICs) willing to put themselves in the middle between experts, advocates and regulators. Unless someone is able to manage these difficult interactions, we will miss crucial opportunities to protect dwindling natural resources. What does a graduate student with an undergraduate science degree, a passion for environmental improvement and an interest in managing constructive dialogue in politically-stressed situations need to know to facilitate such interactions? That's what we are trying to determine.

Six years ago, at the invitation of the United States Geological Survey (one of America's premiere science agencies), our MIT team put together a set of courses and a field-based training program to place apprentice SICs in the middle of resource management controversies all over the United States. Through an action-research program, more than 25 graduates of MIT's Department of Urban Studies and Planning have worked on environmental restoration in Mississippi, desalination of the Colorado River, climate change impacts in the Everglades and on the Chesapeake Bay, strategies for maintaining the near-shore fishery in the Gulf of Maine, ways of ensuring that local knowledge is taken seriously in managing the Sonoran desert; dealing with storm water run-off in Somerville, Massachusetts and Aurora, Colorado; helping coastal cities in Massachusetts adapt to climate change risks, protecting endangered habitats in the Rocky Mountains, and coping with water shortages in Eastern Washington. We work under the banner of MUSIC -- the MIT-USGS Science Impact Collaborative and our tag line is "Harmonizing Science, Policy and Politics." (See scienceimpact.mit.edu).

You'd think by now that the science and engineering establishment would realize that conventional approach to injecting "science" and technical analysis into politically-charged policy-making situations isn't working. Most scientists and engineers still think that all they need to do is put their studies "out there" and the world will use the information appropriately. They are convinced that they don't have to talk to non-experts or get involved in the hurly-burly of actual decision-making. We also encounter regulators at every level who think that holding a hearing is the best way to engage concerned citizens and stakeholders in resource management decisions. The fact that nothing gets decided in such setting and that no one has responsibility of reconciling what they are saying with what anyone else is saying, doesn't seem to bother them. Finally, we see no sign that environmental and health advocates realize how important it is for them to engage in joint fact finding and collaborative decision-making with the companies and agencies they are fighting.

Getting the Right Parties to the Table

The first step in resolving any science-intensive policy dispute is getting the right parties to the table. This is best handled by calling on trained mediators (i.e. professional neutrals) to interview all the relevant groups and organizations - on a confidential and not-for-attribution basis - to scope the agenda, identify who should be involved, lay out a work plan, and engage the relevant stakeholders in specifying the ground rules that will govern their interactions. The details of how to do this are now well-known (see Susskind and Cruikshank, Breaking Robert's Rules, Oxford University Press, 2006). Students in the MUSIC program help prepare these assessments as assistants to professionals working for the Consensus Building Institute (www.cbuilding.org).

Joint Fact Finding

Once all the parties are at the table, including the relevant regulators, the group can initiate scientific or technical investigations required to understand the current situation as well as possible ways of proceeding given the likely impacts of alternative decisions. Often this requires developing models or forecasts. Sometimes it requires gathering new data. Inevitably, it involves interacting with a range of experts (with conflicting disciplinary and technical opinions about what ought to be done or how a problem should be approached).

Building Consensus

Eventually, the group needs to decide what it wants to recommend based on the homework it has done and the concerns of all the stakeholder groups involved. Unlike a hearing where each person sounds off and then sits down; the collaborative processes MUSIC students are learning to facilitate aims to produce informed consensus -- even in the face of scientific uncertainty and intense technical disagreements. What's interesting is how often it is possible to reach agreement in such situations when the parties are given the information and help they need. Books like Susskind et. al, The Consensus Building Handbook (Sage, 1999) offer numerous "worked examples" to show that this is possible.

Linking Informally Negotiated Agreements to Enforceable Decisions

When groups are invited to participate in collaborative resource management, that doesn't mean that government agencies are turning over to them the power to make final decisions. The product of such deliberations almost always takes the form of a recommendation. Agencies have legal responsibility for making policy choices. Most of the time, though, if all the relevant parties engage in a good-faith effort to produce an informed agreement, the regulators are likely to move in that direction. They take the informally negotiated agreement and translate it into terms and conditions imposed as part of a permit or license. This makes the policy enforceable.

What SICs in Training Need to Learn

We expect SICs to invest two years in intensive graduate study. About 1/4 of their time is devoted to field-based apprenticeships. The rest is spent taking courses dealing with the techniques of policy analysis, tools for forecasting and modeling change in socio-ecological systems, environmental ethics, environmental leadership, strategies for promoting sustainable development, and consensus building strategies. Their field-based assignments are guided by federal agency staff and MIT faculty advisors. They have to fulfill a contract each semester that requires them to produce work products that meet the needs of the communities and agencies with which they are working, and contribute to theory-building. In their final semester, they are required to produce a thesis. In early November 2009, we will publish The Best of MUSIC, highlighting some of the most important theory-building contributions of the MUSIC interns.

We are pushing hard to get the U.S. Department of the Interior to make a formal commitment to hire Science Impact Coordinators at of its headquarters and regional offices. We hope that NOAA, EPA, DOE, Army Corps of Engineers and make similar commitments. It's time to adopt a new approach to harmonizing science, policy and politics.