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Houston attorney Richard O. Faulk, chair of the litigation department, environmental practice group and climate change task force of Gardere Wynne Sewell LLP, is attending the United Nation Climate Change Conference in Copenhagen as credentialed member of the press.

His reports, including this one which appeared on Dec. 12, 2009, have been published in Andrews Environmental Litigation Reporter.

Although some parties continue to posture and insist that the negotiations are between the "haves" - "developed" nations such as the United States and Japan - and the "have nots" - "developing" nations such as China and the "G77" group - those classifications are increasingly imperiled by harsh rhetoric and unrealistic expectations.

Despite its broad demands for funding and firm commitments from developed nations, China claimed it had no intention of assuming any legally binding obligations on any front.

For its part, the United States remained firmly resolved that China and the other economically growing developing nations should play a part in climate change financing and emissions controls. Thus, the tensions - perhaps purposefully created by the United States to isolate the Chinese and other relatively prosperous nations from truly needy and "vulnerable" countries - rose throughout the day.

Ultimately, a key working group under the UN Framework Convention on Climate Change released a six page surprise. It provided a draft intended to form the framework of a new climate change agreement to govern international activities and obligations after 2012, the date when the Kyoto Protocol terminates. The text was filled with terms enclosed by brackets, however, which indicated the lack of consensus on essential points.

The draft also seeks "substantial deviations" from current growth rates for developing states. Although more prosperous states, such as China, will not be required to undertake any set obligations to reduce emissions, the draft suggests that they might take "autonomous mitigation actions" to limit their increase.

The draft calls for developed countries to provide "adequate, predictable, and sustainable financial resources, technology and capacity-building" to support developing countries, but the proposal is perhaps deliberately vague regarding how a "developing nation" should be defined. Since China has trillions of dollars in currency reserves, this lack of specificity signals that China, and similarly situated countries, may not ultimately qualify for "developing" status.

Highlighting this controversy, Todd Stern, the primary US negotiator, said that the draft was "constructive" but "unbalanced" because of the disparate treatment of developed economies. Driving the wedge further, he stressed that the provisions did not even provide "a basis for negotiation."

Of course, the biggest hole in the draft concerns how much money will be paid, and who will pay it to whom.

Now that the document has been circulated, and the possible intermediaries have offered their "olive branches," the negotiators will commence work to determine whether an agreement is possible.

Even if their efforts succeed, however, major obstacles exist - and some may be insurmountable. A Congressional delegation from the United States is arriving soon to remind the conferees of the most important one - that President Obama cannot legally bind America to a treaty without the Senate's consent, and that Senators don't typically ratify treaties opposed by the majority of their constituents. They will almost certainly advise delegates that "redistributing America's wealth" through "climate reparations" is not an appealing argument for ratification.

Americans, perhaps even a majority, already distrust the current Administration's spending proposals. Commitments of tax dollars to international climate issues may be viewed by many as a profligate program of international largesse.

Read and find Mr. Faulk's full report on the Climate Change Conference at the firm's website www.gardere.com.