The Clean Development Mechanism and Environmental Protection in Rapidly Developing Countries: Comparative Perspectives and Lessons from China and India

AuthorMichael Addaney
Pages298-331
298 TSINGHUA CHINA LAW REVIEW [Vol. !∀:2
!
THE CLEAN DEVELOPMENT MECHANISM AND
ENVIRONMENTAL PROTECTION IN RAPIDLY DEVELOPING
COUNTRIES: COMPARATIVE PERSPECTIVES AND LESSONS
FROM CHINA AND INDIA
Michael Addaney
Abstract
The Clean Development Mechanism (CDM) was adopted as one of the greenhouse gas
mitigation measures in the Kyoto Protocol. Apart from promoting environmental sustainability
and other ecosystem benefits, the CDM projects also ensure the transfer of technologies and
sustainable growth in the host country through prioritizing projects such as clean energy
production and conservation as well as waste treatment. China and India together account for
over 70% of the C DM projects in the pipeline. Meanwhile, China and India are the most
environmentally polluted countries in South Asia according to current statistics. This
demonstrates that a multitude of C DM projects in these countries are not yielding
corresponding benefits especially in protecting and sustaining ecological treasures. Using
comparative analysis, this article discusses the progress made in China and India in terms of
policy development and highlights the policy implementation challenges hindering CDM
projects from achieving clean and green development. The article shows that although both
countries have taken positive stepsthrough the adoption of enabling policies and institutional
structures, the twin-forces of incoherent policies and poor institutional designs are impeding
the success of CDM projects. This article contends that China and India must share their best
practices in the areas of environmental protection and CDM governanceto guarantee that CDM
projects lead to ecologically sustainable development. Lastly, the article emphasizes how
potential policy and institutional reforms to the existing environmental and CDM regulatory
mechanisms in China and India would remedy identified deficiencies to achieve the intended
sustainable targets sought by the CDM.
I. INTRODUCTION
Climate change is considered as one of the most severe threats to
humanity and sustainable development.1It raises considerable legal
challenges when issues of economic growth and ecological
sustainability are examined. Emissions from fossil fuel, land -use
change, and agriculture have led to increases of several greenhouse
gases that are driving climate change.2Climate change and ecological
sustainability are therefore closely linked and indivisible.3 There is a
general consensus that the effects of climate change on humans, the
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1 M. Burkett, Rehabilitation: A Proposal For a Climate C ompensation Mechanism for Small Island
States, 13 SANTA CLARA J. OF INTL L. 81(2015).
2 Conference of the Parties, United Nations Framework Convention on Climate Change, Report of the
Conference of the Parties on Its Thirteenth Session, held in Bali from 3 to 15 December 2007 Addendum
Part 2: Action Taken by the Conference of the Parties at Its Thirteenth Session, UN Doc
FCCC/CP/20 07/6/Add.1 (Ma rch 14, 2008).
3 K. Halsnaes et al., Framing issues, in CLIMATE CHANGE 2007: MITIGATION OF CLIMATE CHANGE, 121
(Bert Merz et al. ed., 2007).
2018] CLEAN DEVELOPMENT MECHANISM IN CHINA AND INDIA 299
environment, and ecological processes are negative.4 Some of these
effects include extreme weather conditions, reduced agricultural crop
yield and aggregate food production.5 As one of the three pillars of
sustainable development, ecologically sustainable development has
been conceptualized as the process of “using, conserving and
enhancing the community's resources so that ecological processes, on
which life depends, are maintained, and the total quality of life, now
and in the future, can be improved.”6 Martin and Sutton define the
concept as the maintenance of life support systemsand the
achievement of a natural extinction rate.”7Ecologically sustainable
development therefore advances “economic and social improvement
that achieves ecological sustainability while striving to meet society’s
other needs.”8 Based on this concept, governments are to develop and
implement national legislation, policy, and programs for the protection
and conservation of the natural environment. Fleming et al contend
thatecological sustainability should be pursued for the benefit of both
humans and the millions of other species on the planet.9 This implies
that economic development should not be pursued at the expense of
the environment and therefore, a sustainable solution should be found
for climate change.
Addressing climate change and its adverse effects requires
stabilizing greenhouse gas (GHG) emission in developed countries
and promoting sustainable development, particularly in developing
countries. The international community therefore adopted the United
Nations Framework Convention on Climate Change (UNFCCC) and
the Kyoto Protocol in 1992 and 1997 respectively. 10 To guide
developing countries toward green growth so that they do not repeat
the unsustainable development pathway trekked by developed
countries, the Clean Development Mechanism (CDM) was adopted as
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4 M. PARRY & T. CARTER, CLIMATE IMPACT AND ADAPTION ASSESSMENT: A GUIDE TO THE IPCC
APPROACH5 (1988); ANDREW E. DESSLER& EDWARD A. PARSON, THE SCIENCE AND POLITICS OF
GLOBAL CLIMATE CHANGE: A GUIDE TO THE DEBATE145 (2nd ed. 2010).
5 CLIMATE CHANGE: THE IPCC IMPACTS ASSESSMENT 1 (William John McGregor Tegart et al. eds.,
1990).
6 Department of the Environment and Energy of the Australian Government,Australia's National
Strategy for Ecologically Sustainable Development:Ecologically sustainable development (1992) ,
http://www.environment.gov.au/about-us/esd (last visited Apr. 15, 2018).
7 M. Powell & P. Sutton, Ecological sustainability: A definition of ecologically sustainable
development,GREEN INNOVATIONS (Aug. 7, 2000), http://www.green-innovations.asn.au/ecolsust.htm
(last visited Oct. 26, 2017).
8 Id.
9 M.L. Fleming et al., Ecological Sustainability: What Role for Public Health Education? 6(7) INTL J.
ENVTL. RESOURCES AND PUB. HEALTH 2028, 2040 (2009); Powell & Sutton , supra note 7.
10 See, e.g., A/RES/43/53, 70th Plenary Meeting (Dec. 6, 1988); Climate Change: Guide to the Kyoto
Protocol Project Mechanisms, https://wbcarbonfinance.org/docs/b_en_cdm_guide_ld.pdf (last visited
Mar. 18, 2018).
300 TSINGHUA CHINA LAW REVIEW [Vol. !∀:2
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one of the GHG mitigation measures in the Kyoto Protocol.11 The
CDM contains clear and binding obligations for industrialized
countries to reduce their overall emissions by an average of 5% below
1990 levels during the initial commitment period of 2008-2012.12 The
CDM was set up with the embedded assumption that it will create win-
win opportunities for both developed and developing countries to
promote ecologically sustainable development while mitigating
climate change.13Apart from pursuing environmental sustainability
and other ecosystem benefits, the CDM projects also ensure the
transfer of technologies and sustainable growth in the host country by
prioritizing projects such as clean energy production and conservation
as well as waste treatment.
Recent statistics from the CDM database show that China and India
dominate the CDM project pipeline. The two countries together
account for over 70% of the CDM projects in the pipeline.14They have
been successful in supplying over 80% of global certified emission
reduction credits (CER). 15 Interestingly, the consumption of fossil
fuel in China and India are similar, with coal accounting for 70% and
63%, respectively, of their total energy consumption. 16 Despite
dominating the CDM project pipeline, China and India are the most
polluted countries in South Asia according to 2017 statistics.17 This
implies that the successes of these two countries in attracting CDM
projects have not been transformed into environmental sustainability.
For example, three of the ten most polluted cities in Asia are located
in China and the other seven cities are in India.18 Further, in 2015, the
largest number of deaths attributable to pollution occurred in India and
China, with an estimated 2.5 million and 1.8 million deaths,
respectively.19 This is a clear demonstration that despite the plethora
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11 Kyoto Protocol to the United Nations Framework Convention on Climate Change, (Kyoto: 1997),
http://unfccc.int/kyoto_protocol/items/2830.php (last visited May 26, 2018).
12 Id.
13 K. Olsen, The Clean Development Mechanism's contributions to sustainable development: a review
of the literature 84(1) CLIMATE CHANGE66 (2007).
14 Centre for Energy, Climate Change and Sustainable Development, CDM projects by host
region,UNEP-DTU PARTNERSHIPCDM/JI PIPELINE ANALYSIS DATABASE by 21 October 2017,
http://www.cdmpipeline.org/cdm-projects-region.htm (last visited Oct. 29, 2017).
15 O. Adejonwo-Osho, The clean development mechanism and sustainable development: Comparative
analysis of governance of cdm in China and Nigeria 1(4) J. OF COMP. L. IN AFR. 125, 144 (2017).
16 Z. Caineng a et al., Energy revolution: From a fossil energy era to a new energy era 3(1) NAT. GAS
INDUSTRY 1, 11 (2016); E.D. Larson, Z. Li & R.H. Williams, Fossil Energy,inGLOBAL ENERGY
ASSESSMENT 910 (Ronald Bruce Mitchell et al. eds., 2006).
17 P.J. Landrigan et al., The Lanc et Commission on pollution and health, 2017 S0140-6736(17) THE
LANCET COMMISSIONS, 32345-0, http://dx.doi.org/10.1016/.
18 Id.
19 B. Dennis, Pollution kills 9 million people each year, new study finds, WASH. POST, (Oct. 19, 2017),
https://www.washingtonpost.com/news/energy-environment/wp/2017/10/19/pollution-kills-9-million-
people-each-year-new-study-finds/?utm_term=.3f0b1f8ea3fc (last visited Oct. 27, 2017).

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