As I write this piece, the talks in Cancun are about where we expected. The 10 days made little progress at the staff level – so Ministers have arrived to take the reins and find a compromise. I expect they will produce an agreement by the end of the week, but it will take some late nights of hard bargaining. The outcome will be modest, setting up a process to resolve remaining issues at next year’s negotiations in South Africa.

I think all of us who come here as observers are struggling with how big the Conferences have gotten – and how difficult it is to make meaningful contributions to the debate, given the modern security needs and crowd control. On the “ground level” here, observers must shuttle around multiple venues on buses, and gridlock is common. I mention this because it is almost symbolic of what is going on in the negotiations themselves – the topics are big and complex and the process doesn’t work very well.

So what is needed to change it? I actually think it’s pretty simple. It’s not really about process. The problem is simply that the U.S. has not reached consensus at home on a climate policy. Once we do, the international process will start to move forward again. China needs to do the same thing on its domestic climate policy – but my sense is that China will only do it if they can understand how their commitments measure up against the United States’ commitment, and vice versa. Even if the negotiations were moved to a different for a – say the G20 or the Major Economies Forum – this same fundamental problem would exist. The US and China would need to adopt real, effective policies and have respect for each other’s approach.

While this is a simple fundamental, it is not going to be easy to accomplish. In the business conversations on the sides of Cancun, you can feel a lot of optimism about the potential for China to adopt a market-based carbon policy, possibly faster than the U.S. Meanwhile, we in the U.S. appear to be moving forward with a command-and-control policy under the existing Clean Air Act that will cost more and accomplish less.

Maybe China’s leadership toward market based instruments will wake us up. Maybe China can spur a green technology revolution across Asia that gets our attention. Maybe U.S. leaders will realize that the environmental risks of inaction are huge – and that a market-based carbon policy can prompt that surge in economic growth we all want to see from exciting new export markets. Or maybe the U.S. will get left behind in our own gridlock.

For those of us active in the national policy debate, these are the stakes of the coming Congress – and its also the key to a more effective international process.

According to some, the talks were going swimmingly—it’s Cancún, after all—until the Japanese said in plain English what everyone already knew. “We will never accept any CMP [Kyoto’s supreme body] decision implying the setting of a 2nd commitment period or provisional extension of the 1st commitment period.” This 23-word disavowal of the Kyoto Protocol by the Japanese is especially significant because the treaty bears the name of the Japanese city that gave it birth. Those of you who have been following these talks over the years know that enthusiasm for the Kyoto Protocol has been dying for some time. It looks like the Japanese have performed the last rites

That doesn’t mean the talks are going to end anytime soon. There are more than a few delegations here who will insist that this corpse still has a pulse, and it’s certain that the burial will be a long and drawn out affair. But the Kyoto Protocol will, in time, be laid to rest.

Is what led to Kyoto’s demise contagious? It’s difficult to say. In truth, while all the attention has focused on the flaws of Kyoto, it’s really just a reflection of the Framework Convention, which is looking a little tepid, too. Progress in the UNFCCC “Long-Term Cooperative Action” negotiations (in which the U.S. participates), as far as the developing countries were—and are—concerned, was contingent on a successful outcome in the Kyoto talks, and we know how that is turning out.

Many delegations here (especially the European Union) have invested a great deal and don’t want to give up on the UN process. The outcome of this meeting should give us an idea of how much staying power the UNFCCC has. They are anxious to achieve a decision here in Cancún that reflects a “balanced” outcome. So what does balanced mean? It means the decision has to have something for everybody and include all of the elements of the Bali Roadmap (mitigation, adaptation, technology and finance). It also means there has to be balanced success in both the Kyoto and LCA negotiations, a much trickier proposition. If a decision incorporating these elements can be worked out, however, it could breathe new life in the UN process, but still not get appreciably closer to a binding deal.

And if things don’t go well, there are sure to be recriminations. But I think that even in the best of circumstances, it was always unlikely that an agreement could be reached through either UN process that could win the support of 67 Senators. The top-down approach embodied in the Kyoto Protocol is seriously flawed, and it is unlikely to supply the vehicle for a new, comprehensive international agreement.

The reality is, the Japanese have done everyone a favor and have opened up other, perhaps more promising avenues. Many here are suggesting that the Copenhagen Accord could be provide the basis of a new agreement, but it, too, has flaws. There is also talk of the G20 or the Major Economies Forum being the vehicle for a new agreement, an idea whose time has perhaps come.

President Bush held a series of Major Economies Meetings with the 16 largest economies (which has morphed into the Obama administration’s Major Economies Forum). For his troubles, President Bush was accused of using the Major Economies Meetings to undermine the UNFCCC. Now, it’s being touted by some as the best option for success. The more things change . . .

Statements that blame the UNFCCC for the failure to achieve a global climate deal and suggest that the climate crisis can be tackled by a series bilateral or “group” deals are misplaced. The reality is that Cancun is a forum where countries come to negotiate. During the negotiations, each country expresses the will of their government to give and take on the many dimensions of reducing greenhouse gas emissions. If the process does not move forward it is the result of each country’s lack of serious ambition and willingness to negotiate. In that regard, ambition has been lacking in all arenas - bilateral, multilateral, etc. – and it is not the UNFCCC and its process to blame.

At some point, and science indicates it better be some point soon, the negotiations must culminate in a legally binding treaty to reduce greenhouse gases. Bilateral and multi-lateral deals are helpful, but greenhouse gas emissions are diffused across numerous countries and reducing emissions in several countries inevitably has spill over impacts in others. Japan’s new announcement concerning a second commitment period of the Kyoto Protocol is the perfect example of how even an ambitious multilateral deal, while beneficial, is still inadequate. The U.S. (not a party) and China (a non-annex 1 country) – Japan’s two biggest trading partner- are not required to reduce emissions under Kyoto. The G2 make up around 50% of global emissions and Japan believes Kyoto puts it at an economic disadvantage with its major trading partners. Thus, it is balking at new commitments in what amount to a multi-lateral agreement. Kyoto is a critical building block, but it may not continue if it does not lead to a global deal, and alone it won’t fully solve the climate crisis.

To get a global deal will be tough especially in the face of failed U.S. legislation. The U.S. simply does not have much it can offer the world at the negotiating table. To get over that hurdle, starting now the U.S. needs to be trumpeting the Administration’s regulatory and administrative actions to reduce greenhouse gases and it must be publicly and loudly defending the EPA’s authority to use the Clean Air Act as a major tool for reducing emissions. It can also point to ongoing state-based efforts to reduce emissions. And it can use these efforts to bolster its participation in a Cancun decision that manages to inscribe its 17% Copenhagen pledge. Only such an effort will allow negotiations to continue toward a global deal in South Africa in 2011.

New international institutions are being invented to transfer the technology that reduces global warming emissions.

How to do that has emerged as a key issue in the climate talks in Mexico, and leading area in which they could actually produce results later this week.

“It’s a bear of a negotiation, but we think it’s actually very interesting and quite exciting, because for the first time the Framework Convention is starting to tear down some of these walls and provide the technology to reduce emissions,” Drew Nelson, a top U.S. climate negotiator, told business leaders convened by the U.S. Department of Commerce this morning in Cancun.

To start with, Nelson said, “climate technology is almost infinite, so you’re not going to be able to have just one solution.”

Then there’s the issue of intellectual property – and preserving enough rights that private developers still have the incentive to research and develop more, and not just give the technology away.

Two institutions are under negotiation, he said:

1. A “technology executive committee,” which the U.S. delegation envisions as a global think tank on technology issues: What works, why does it work, and where does it work?

2. A Climate Technology Center & Network, which would act as a traffic cop, with access to outside companies, academics, and NGO.

A country that has no idea what its wind resource is, for example, or how to develop it, would go to the CTC&N, and can help build the capacity for that country – and in the process, produce a proposal for the $100 billion Green Fund proposed at the Copenhagen accords.

Governments and emissions markets would supply the money; although, developing nations now want more – $300 billion, or even up to 6% of developed nations’ GDP.

None of the money has been raised, Nelson said, the architecture of the groups has yet to be determined, or even where they would be housed.

Meanwhile, the chorus of countries who will be heavily impacted by climate change in the near term is growing. First it was the small island states, which rising seas will wash away. Now, he said, a new group has emerged: mountainous landlocked countries, which depend on glaciers for their drinking water, agriculture, electricity, and development.

The United States is seeking a “balanced outcome” from the climate talks, in which developed countries commit to goals, and the developing world commits to actions. Even once the existing Kyoto accord expires at the end of 2012, a “border tax adjustment” could help address unfair trade advantages by a country that doesn’t act against global warming, if the United States has.

Domestically, the U.S. Administration has set a goal of cutting emissions 17% below 2005 levels, by 2020.

That is still doable, Nelson said, even without a bill in Congress to put a price on carbon. One reason is that a separate treaty, the Montreal Protocol, can yet be used to reduce refrigerants that are such potent sources of warming that they could be 20% or more of the problem within 20 years.

The harder part is the long term – cutting emissions 80% by 2050 will require pricing carbon in the U.S. and national commitments by the major economies of the world.

“We’ve got a whole host of programs that are unilateral,” he said, “but they don’t get us to the reductions that are necessary to avoid climate change.”

He asked business to keep explaining to Congress the investment opportunity posed by renewable energy and climate solutions: “It’s one thing for a government bureaucrat to say it’s great for business, and another thing for you to say, ‘actually, yeah, it is.’”

We need a new paradigm – one that recognizes the importance of a binding treaty, but appreciates that getting there will take time.

For 15 years, the primary thrust of the UNFCCC negotiations has been establishing and extending a legally binding regime: the Kyoto Protocol. This preoccupation has probably precluded more modest steps within the UNFCCC. Worse, it has produced a perennial state of stalemate.

In a new report we are releasing today, the Pew Center on Global Climate Change calls for a more “evolutionary” approach. Looking at other multilateral regimes, the report shows how most have evolved gradually over time: incremental steps build parties’ confidence in the regime and one another, leading to a greater willingness to take on stronger obligations.

While the climate regime exhibits some of these evolutionary tendencies, the Kyoto Protocol represented a quick and dramatic step-change that, at the moment and for the foreseeable future, parties appear unable to sustain.

The solution is not to abandon the aim of a legally binding treaty. Indeed, our report argues that parties should very clearly declare that their aim. But for now, they should focus instead on advancing the multilateral climate system through steps that strengthen support for developing countries, and strengthen transparency so countries are better able to assess whether others are fulfilling their pledges.

These incremental steps will promote stronger near-term action, build trust and confidence, and create a sturdier foundation for binding commitments down the road.

In a new policy brief, we outline the steps needed in Cancún to start us down this path. An evolutionary approach is no guarantee that nations will move fast or far enough to avert the worst consequences of climate change. But the alternative is continued deadlock and, quite possibly, the collapse of multilateral climate effort.

The question is not, “How can the world cut carbon emissions?” The real questions are:

1) What hard, factual, empirical evidence do we have that humans are causing dangerous global warming, climate change or global climate disruption? Not computer models, assertions, assumptions, questionable surface temperature data or phony consensus. Actual evidence. And if the alarmist camp has that evidence, why does it refuse to share it (its raw data, methodologies and computer codes – not just the pasteurized, homogenized and process data and conclusions)? And why does it refuse to discuss or debate these issues?

2) How can we make carbon dioxide emissions RISE?

From 1900 (and even earlier), life expectancies, living standards, human health and all other key indicators of quality of life in the developed world have been improving. Since at least 1970, air and water quality have steadily improved, after decades when they arguably had declined, as the developed world focused on building its industries, transportation and other infrastructure that made these life and living improvements possible.

The question is not, “How can the world cut carbon emissions?” The real questions are:

1) What hard, factual, empirical evidence do we have that humans are causing dangerous global warming, climate change or global climate disruption? Not computer models, assertions, assumptions, questionable surface temperature data or phony consensus. Actual evidence. And if the alarmist camp has that evidence, why does it refuse to share it (its raw data, methodologies and computer codes – not just the pasteurized, homogenized and process data and conclusions)? And why does it refuse to discuss or debate these issues?

2) How can we make plant-fertilizing carbon dioxide emissions RISE? From 1900 (and even earlier), life expectancies, living standards, human health and all other key indicators of quality of life in the developed world have been improving. Since at least 1970, air and water quality have steadily improved, after decades when they arguably had declined, as the developed world focused on building its industries, transportation and other infrastructure that made these life and living improvements possible.

In recent decades, China, India, Brazil and other emerging economies have followed the developed world’s lead – and greatly improved the lives of their citizens.

Meanwhile, in the impoverished Third world, life expectancies, living standards and other basic indicators of quality of life have remained awful … or gotten worse. In every one of these cases, humans owe their improved quality of life to one thing, above all others: a massive increase in productivity through the use of technology – and the energy that makes that technology possible: access to abundant, reliable, affordable energy, especially hydrocarbons and electricity. Even today, with nuclear and hydroelectric power making huge contributions, hydrocarbons remain king. And because of that, people in developed nations today live better than even kings and queens did a century ago.

Today, China is providing a model for the rest of the developing world to follow. Ignoring the hypocritical calls from the West to rein in its growth, China has lifted millions of its citizens out of poverty and given them far better quality of life – and far more opportunities – by increasing the use of oil, coal and natural gas, and accepting many tenets of the free market.

We should be thankful that these talks to replace Kyoto are failing. Kyoto failed and with good reason: given our current technology (including expensive, land-intensive, unreliable wind and solar power), it is impossible to provide an affordable, reasonable quality of life and a healthy economy without using oil, coal and natural gas. (Nuclear power would certainly help, but Greens oppose that too.) For instance, Canada signed the Kyoto Protocol and proceeded to abandon any attempt to comply. The Canadian economy and population were growing, and to put the kinds of restrictions on our economy that Kyoto was calling for would have severely hampered our ability to feed people, keep them warm on frigid Canadian nights, and keep our country prosperous.

As for agreements on “technology transfers,” there is a lot of talk about “incentivizing innovation” and tech transfers. However, the bureaucrats at the UN do not realize that innovation cannot be created by transferring taxpayer and consumer money to politically favoured corporations. This leads only to mal-investment – the direction of scarce financial and material resources into unproductive ends, such as industrial wind farms. Too many times in the past these “transfers” have meant loans from Ottawa, Washington, Berlin, Madrid, the IMF and the World Bank to pay politically correct, politically connected western corporations to install expensive equipment. This is corporate welfare, nothing else.

I have a suggestion for the EU and all of its member states. If you would like to "transfer" technology to the developing world, how about doing it the old fashioned way – through free trade, fair trade, a fair exchange of money for the best, most efficient, lowest polluting modern technology available. Lower barriers and let developed countries trade freely with the people of Africa and other poor regions, open markets to their agricultural products, and trade with them for what they want and need.

When it comes to issues like deforestation and environmental protection, once again embracing the natural human “propensity to truck, barter, and exchange one thing for another" would solve many problems. Taking care of the environment isn't cheap, and there is a connection that is not often noted by the greens: the richest nations also have the cleanest environments. We in the developed world have gone beyond the need to cut down trees and destroy wildlife habitats to cook our food. We are wealthy enough not to experience the energy poverty – and consequent lung and intestinal diseases, malnutrition, misery and premature death – that affect billions of poor people all over the world.

There is a direct correlation between the quality of life that a country can provide to its residents and per capita CO2 emissions. Trying to force an unneeded transition to technology that is not ready for prime time (and is not needed for “climate change prevention” reasons), in the name of ideologically driven goals, will lead only to unnecessary hardship for people in the developed world – and continuing economic and energy poverty, misery, disease and early death for billions of people around the world who still live on less than two dollars a day.

The United States and Canada need to get back to what they have done best over the last 100 years: providing a model of what the free human spirit can accomplish, if given the opportunity. In other words, building a prosperous society that can lift all boats and all people, by providing opportunities to everyone. If we happen to create a little CO2 along the way, then so be it.

Humans are part of nature. The use of hydrocarbons is part of nature. Carbon dioxide emissions are a vital fertilizer that helps food crops and all other plants grow better and faster and with greater resistance to drought, thereby making ALL life on earth possible.

We are the rational animal, and our creativity and ingenuity should not be stifled – nor should anyone seek to condemn half of humanity to a life where they will never be able to make full use of their gifts.

Instead of worrying about carbon dioxide, we should ask: How can we make better use of the greatest resource we have yet discovered – hydrocarbons? We should not ask, How we can reduce our CO2 emissions? But rather, how we can raise CO2 emissions in the Third World, by giving them better access to the vast energy and opportunity stored in hydrocarbons – and thereby reducing their need to chop down forests and burn trees in dangerous, polluting open fires?

The best commitment the United States can make is to promise that it will do all it can to relegate the Kyoto protocol to the dustbin of history, leave UN bureaucrats to tilt at windmills – and help all still impoverished people to achieve their hopes, their dreams, their true destinies.

The Kyoto Protocol hangs by a thread here in Cancun. Several developed countries are reluctant to renew their emissions reduction commitments under the Protocol unless other major emitters—such as the United States and China—agree to comparable legally binding restrictions. Thus far, however, the United States has refused to take on any legally binding obligation to reduce its greenhouse gas emissions.

The usual explanation is that a climate change treaty will never get 67 votes in the Senate, especially now that Republicans—several climate change denialists among them—have increased their numbers in Congress. Nonetheless, the US continues to insist it will keep the very modest emissions reduction pledge it made under last year’s Copenhagen Accord. Yet the climate bill from which that pledge was drawn is now dead, there’s nothing on the horizon to replace it, and many are now wondering how the US intends to keep even these paltry promises.

So the United States has once again arrived at a UN climate conference with its usual list of demands: greater emissions reductions from developing countries, more oversight of other countries’ actions, and insistence that financial assistance flow through institutions many in the developing world distrust. And, once again, the US has nothing much to offer—not even a convincing road map as to how it will fulfill its meager Copenhagen pledge. It’s no wonder that many regard our country as one of a handful blocking progress toward an effective, global climate solution.

It doesn’t have to be this way. The United States could commit to far more ambitious emissions reductions, more in line with what both science and global equity demand, using authority it already has under existing laws. Under the Clean Air Act’s National Ambient Air Quality Standards program, the US could even set a cap on atmospheric greenhouse gas concentrations at 350 parts per million carbon dioxide—the level scientists say we must return to in order to avoid permanent, irreversible damage to people and ecosystems worldwide. Other existing laws and programs offer additional opportunities to reduce emissions. The US could build considerable trust and help restore faith in the international process by incorporating these authorities into a comprehensive plan to meet its current emissions reduction pledge and then move far beyond that to what the science actually requires.

What we can’t do is keep stalling, bluffing, and insisting that everyone else in the world reduce their own emissions first. The past year’s unprecedented extremes—near-record Arctic sea ice loss, fires in Russia, floods in Pakistan, and Manhattan-sized chunks of the Greenland ice sheet dropping into the sea—have given us a sobering taste of what a warmer future will look like. If we’re to have any reasonable chance of avoiding the worst that our changing climate has in store for us, we have to act immediately, so that global emissions peak in the next few years and decline steeply thereafter. If we can demonstrate to the rest of the world that we’re really serious about fighting climate change, we might not only help shore up a teetering international process. We might also actually help save thousands of threatened species and millions of human lives in the bargain.

There are indeed many observers and countries who wish for the Kyoto treaty to continue, and have been upset by recent proposals (like Japan’s) to let Kyoto fade away and to pursue a different legal structure. While the reasons for Kyoto’s support are diverse, one of them is rooted in a particular philosophy about how climate change should be governed. This school of thought follows roughly this logic: (a) climate change is a global problem (b) because it is a global problem, it requires a global solution; (c) and the solution must be “legally binding” because otherwise countries would cheat. This logic is not necessarily wrong, and is indeed one rational way to argue about addressing a large and important collective action problem. And there is historical precedent: for example, the Montreal Protocol on ozone-depleting substances followed a similar logic for addressing the global problem of stratospheric ozone depletion. The Kyoto Protocol also followed this logic by setting negotiated emissions reduction targets on specific countries and couching them in a “legally binding” compliance framework.

However, it is here worth pausing and reflecting on what “legally binding” can and cannot do in the context of international law. One of the several lessons from Kyoto is that if countries are really not going to hit their targets, there is really not a good way for the international community to enforce those so-called “binding” provisions. A second lesson is that some key emitters, such as the United States, are—one might even say, reasonably—reluctant to agree to “binding” targets if they suspect they might not be able to reach them. (It is a subject of another debate whether it is pragmatically or normatively appropriate for countries to sign up for “stretch goals” in treaties). The undeniable conclusion of this is that we must accept the limited purview of international legal arrangements to bind countries to do things that are painful to them.

That does not mean, however, that international agreements are worthless. Far from it. We have seen in many other contexts the value that arises from countries agreeing to mutually beneficial arrangements, whether it is in arms reduction or ozone depletion. And even absent the legally binding targets of Kyoto, other frameworks for targets do exist. One alternative prevailed at the Copenhagen climate negotiations last year. The Copenhagen Accord relies on countries reporting targets that they themselves have established within their own domestic legislative or regulatory systems. While some observers see such an arrangement as too “voluntary” to ensure adequate emissions reduction, others argue that it is the only way to encourage any emissions reduction beyond business as usual.

It might sound paradoxical that a system of voluntarily reported targets could lead to greater reductions than the much more rigorous-sounding “legally binding” provisions. But, crucially, such a system recognizes real constraints while relying heavily on one of the main tools of international agreements: Norm creation and peer marking. In the end, the international community cannot force any individual country to reduce its emissions or even to penalize bad performers. Indeed, such desires can prove to be counterproductive. More useful is to establish norms for what we should do, and how we should do it, and then encourage countries in some friendly competition for who can pull it off most artfully.

Besides the looming question of emissions reduction commitments, there are, of course, other more conventional international institutions that should work reasonably well for climate change, and many of these are also being discussed in Cancun. Multilateral financing mechanisms and technological knowledge sharing, for example, have a longstanding place in international cooperation. Moreover, many Kyoto provisions (such as the CDM and Adaptation Fund) may be worth retaining into the future—either as part of a “Kyoto II” agreement or simply folded into a new structure. Reducing deforestation is one area that has been on the international agenda for some time, and may see some useful progress as part of the climate negotiations.

It is important to remember, though, that the large-scale negotiations under the UN Framework Convention on Climate Change need not be the only route to tackle climate change. Climate change is a massive and complex issue, and it is simply unreasonable to believe that one institutional approach would be sufficient to the task. Already, most bilateral funding agencies and multilateral development banks have made substantial efforts on climate change. New approaches to technological cooperation have been tried, such as through the US’s Clean Energy Ministerial announced by Secretary Chu this past summer. In a way, the current lack of consensus on what to do about climate change presents an opportunity for creativity and experimentation as to which approaches are really going to work best. At this stage, therefore, it will benefit us to remain flexible and open-minded about which models are “best”, and simply to start trying those that seem promising.