Legal enough?

In the run up to next week’s special meeting of the ADP, the United States is publicly setting out its negotiation agenda.


Todd Stern making an announcement at last year’s COP19/CMP9.

In a speech on Monday at Yale University, U.S. Special Envoy for Climate Change Todd Stern indicated the country’s position on the meaning of “legal” in the ADP’s mandate to produce “a protocol, another legal instrument or an agreed outcome with legal force” to take the place of the Kyoto Protocol after its second commitment period ends in 2020.

The Obama Administration is in a tough spot.  It wants to be a player in developing a 2015 agreement (popularly called the Paris agreement, for it is due to be opened for signature at COP21 in the City of Light).  It knows that this new agreement will contain legal elements.  It also knows that if the entire package takes the form of a treaty, it would have to bring it to the Senate for ratification — a highly unlikely proposition even if the Democrats maintain control after this fall’s midterm elections.

In his formal remarks, Stern pointed to New Zealand’s proposal for all countries to submit an emissions reduction schedule that would be legally binding and subject to mandatory accounting, reporting and review rules, but that stops short of taking the form of an internationally binding treaty.

Late night ADP negotiations in Warsaw.

Mexico and Singapore await their turns to speak at a late night session of the ADP in Warsaw.

As reported by Reuters, Stern commented that “some are sure to disapprove of the New Zealand idea, since the mitigation commitment itself is not legally binding, but we would counsel against that kind of orthodoxy.”   In the National Journal he argued that the flip side of this approach may be “increased ambition” in these nationally determined commitments: “Many countries, if forced to put forward legally binding commitments at the international level, are inevitably going to lowball their commitment out of fear—anxiety about what it means for their commitment to be internationally legally binding.”  Stern suggested at his Yale talk that countries might include description of the legally binding measures it will take domestically to meet its internationally stated goal, to reinforce the heft of its submission:  “it’s important for countries to make clear which specific policies will be used to meet their emissions targets.”

While this stance will indeed disappoint global partners in the UNFCCC’s ADP negotiations, officials inside the U.S. point out that it doesn’t weaken the country’s domestic approach to mitigating climate change.  Shaun Donovan, director of the White House Office of Management and Budget, said that the U.S. is aware that its own target will have a major impact on the outcome of a global deal.  “The more that we do, the more our ability to push other countries to make bold commitments as well, particularly China. It is something we are very focused on in terms of what targets we are able to get to.”  Stern also observed that the President’s Climate Action Plan and the EPA’s recent Clean Power Plan rulemaking “give us a level of credibility, and it give us a level of leverage that we have not had in the time I have been here.”


UNFCCC Executive Secretary Christiana Figueres at the bully pulpit.

Any points of common ground as we move from Bonn’s special ADP meeting next week to Lima’s COP20/CMP10 in December?

“We should agree on an angle of the [Paris] conference this year in Lima, Peru,” Stern opined to The Hill.  To that end, UNFCCC Executive Secretary Christiana Figueres told the Montreal Council on Foreign Relations that given the lessons learned from COP15 in Copenhagen, she will push state parties gathered in Lima to have “cleanest possible draft text” available for governments by April 15, 2015.