Paris Agreement and the Clean Air Act – New Tools for the EPA?

Courtesy of Creative CommonsDoes the Paris Agreement open up new avenues for EPA regulation of greenhouse gases? A new paper – co-authored by law professors from the Sabin Center for Climate Change Law, Columbia Law School, the Emmett Institute on Climate Change and the Environment, UCLA School of Law, and the Institute for Policy Integrity, NYU School of Law – asserts that the global agreement reached in Paris allows the EPA to enforce the rarely utilized Section 115 of the Clean Air Act to cut GHG emissions.


Section 115 of the Clean Air Act addresses international air pollution and empowers the EPA Administrator to take action when the public health or welfare in a foreign country is endangered by pollution emitted from the United States. The EPA Administrator can take action if two conditions are met. First, there must be finding that emissions from the United States endanger the public health or welfare in a foreign country. Second, there must be reciprocity between the United States and the affected foreign country on how they prevent or control air pollution. Section 115 only applies to countries that the Administrator determines has given the “United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section.”


The scholars argue that both conditions can be met. The endangerment finding is supported by science and the Paris Agreement enables the EPA to make the reciprocity determination needed to activate Section 115. If both conditions are met, the paper states that the EPA would have a new set of tools to cut GHG emissions including the power to regulate emissions from the transportation sector and to use market mechanisms to achieve the lowest-cost reductions.


It took four years to negotiate the Paris Agreement. It will take many more years to fully implement it. If this paper’s analysis is correct, COP21 just gave the EPA a powerful new tool to reduce America’s GHG emissions.




UNFCCC Negotiations – Coordinating the Dance

NegCourtesy of Creative Commons (Bobbi Vie)otiations are an elaborate dance. Negotiators must coordinate the actions of many partners. Make a misstep and the coordination is lost. What could be an elaborate dance degrades into a chaotic scramble.


On Friday afternoon, the COP21 negotiations demonstrated how difficult they can be to coordinate. After a week of work in spin-off groups and informal informals, the negotiation focus returned to the ADP contact group. What resulted was a classic example of what happens without a coordination plan.


The Co-Chair Ahmed Djoghlaf started the afternoon session by jumping into the process and asking Parties in they had any issues with Article 2 and Article 2bis. Without waiting for the negotiators to catch up, he quickly accepted the Articles as presented and moved onto Article 3.


What erupted next was a 2 hour long discussion of the process of negotiating. Over and over again, Parties voiced their opposition to the plan and the Co-Chair’s tactics.  Over and over again, Parties used the precious remaining negotiation time to debate how to proceed with a review of the negotiating text.


The Co-Chair saw the end goal that he wanted. To get a slimmed down text to the COP. His choice of process was not the right choice. His steps were out of order. UNFCCC negotiations are a party-driven process where consensus decides the pathway. The Co-Chair chose to lead instead of coordinate.


The Parties took a break, regrouped, and returned with a new proposal for coordinating Party input.  Malaysia, the European Union, the United States, and Norway, brought forward a Party-driven sequence for commenting on the proposed negotiating text. A pattern emerged. The Co-Chair reverted back to managing the order and sequence of Party comments. The Parties focused on identifying the key elements that they wanted in the text and making suggestions on what text could be inserted or should be deleted. Each Party suggestion was to be recorded but not debated.


While the first two hours of the negotiation bogged down with discussions of procedure, the second two hours took on a pattern of Party submissions detailing desired key elements. Party after Party presented their key elements. Some Parties submitted no proposals; some Parties made multiple proposals; some Parties made minor proposals; some Parties made extensive proposals. At the end of the meeting, all of the proposals were recorded to be assembled into a reflective note.


The day started off as a chaotic scramble before evolving into a coordinated pattern of Party submissions. What looked like a lost day ended up with the ADP taking a few more steps towards completing its work.



Building Transparency and Accountability in a New Climate Agreement

Creative Commons (Courtesy of Benson Kua)When we seek accountability, we must start with transparency.


The goal of COP 21 is to produce a robust post-2020 climate agreement that establishes clear goals and a pathway for achieving them. The goals sit at the end of the path. Lighting the pathway are transparency measures built in the agreement. Climate Strategies recently released a policy brief on different measures that could strengthen accountability in the Paris Agreement. The brief identified key international and domestic actions to boost transparency and accountability.


The brief identifies several key international actions to improve accountability. The first and second actions work in combination. The first action is choosing the shape and form of the agreement. A legally binding agreement can hold parties accountable for their non-performance and encourage state compliance. A non-legally binding agreement would not be able to use international legal mechanisms to enforce compliance. The second action would be to create a strong legal mechanism for holding parties accountable for their climate commitments. The third action would be for Parties to improve the existing measurement, reporting, and verification (MRV) system and strengthen its connections to the compliance mechanism. Fourth, the brief recommends opening up the MRV system to participation from non-state actors who would add impartiality and enhanced review of commitments. Lastly, the parties could create a politically independent body to review compliance with commitments.


At the domestic level, the brief focuses on actions that strengthen internal legal mechanisms within and outside of government. The first suggested action is ratification of the agreement and incorporation into domestic law. An example of incorporating domestic law include the UK’s Climate Change Act divides responsibility for carbon emission reduction between government agencies. Imposing obligations on government agencies requires them to account for their actions and encourages them to fulfill their duties. The second suggested action is to develop a proactive Parliament that uses it formal procedures to provide continuous oversight. Parliamentary review is conducted in a transparent public forum thus providing a powerful incentive to comply with commitments. Integration into domestic law also creates opportunity for citizen involvement and enforcement. Citizen enforcement actions shine light on government non-action.


Goal setting is an important first step for a post-2020 climate agreement. But goal setting is not enough by itself. A bright climate future requires transparency to shine a light on the path to achieving those goals.





Understanding the Complex Organized Chaos of UNFCCC Negotiations

FractalA fractal is a never-ending mathematical pattern that is self-similar across different scales. Every time you look closer, you see another layer.


The UNFCCC negotiations have a similar pattern. Every time you look closer, you see another layer. The news reports coming out of Paris are using a confusing array of terms: ADP contact groups, spin-off groups, and informal informals. What looks like a bewildering arrangement of groups has a structure and purpose as countries move towards a final agreement on a post-2020 climate regime.


COP 21 negotiations take place in layers. Each layer reduces the number of participants and increases the intimacy. The negotiations start at the ADP, the body tasked with producing the negotiating text for Draft Agreement and a Draft Decision that will be presented to the Conference of the Parties on Saturday December 6. The COP will then be responsible for finalizing the climate agreement.


The ADP process has 196 Party participants and it is shepherded by two Co-Chairs who oversee the ADP contact group. The ADP contact group serves as the organizational heart of the negotiation process. The ADP contact group has spent three years of painstaking negotiations trying to build consensus on the shape, scope, and content of a post-2020 climate agreement.


With only a few days left to find a consensus, the Co-Chairs are using more focused discussion to spur movement from the Parties. The Co-Chairs are creating spin-off groups to discuss specific portions of the Draft Agreement and Draft Text. Spin-off groups discuss specific Articles and related portions of the Decision text. The spin-off groups are lead by a facilitator selected from the Party delegates. The facilitators are tasked with focusing the discussion and seeking areas of common agreement. The spin-off groups break their work load into clusters or themes. The clusters are made up of related paragraphs and sections. For example, the Article 9 spin-off group has created five clusters that will be discussed individually on topics such as Principles and the post-Paris Work Programme.


When spin-off groups bog down on a discussion of a specific portion of the text, the facilitators are creating a smaller discussion group known as an informal informal. The informal informals bring together interested parties from the spin-off group to draft text that can resolve the dispute.


While the negotiating proceedings get smaller and more focused, the reporting structure works in the opposite direction. Informal informals report their work back to the spin-off group. The spin-off groups can accept the work done by the informal informal. If the spin-off group accepts the new text, then they report their work back to the ADP contact group.


The reporting structure ensures transparency and equality between the Parties. The ADP process has 196 Parties with vastly different capacities. Developing countries can staff and participate in all of the spin-off groups. Least developed countries can struggle to cover all of the meetings and follow the discussion. Requiring the spin-off groups to report back to the ADP contact group ensures that information is presented in an open and transparent forum.


As you peer into the ADP negotiation process, the layers reveal themselves. What looks confusing has a purpose and a goal. What appears chaotic has a structure. What appears disorganized has a plan. Move the world closer to a post-2020 climate agreement. Make sure that Week 2 of COP 21 can complete the task set out three years ago.

Carbon Capture and Sequestration – A Cautionary Tale“That is not what the IPCC says.”


At an event promoting carbon capture and sequestration technology (CCS), an audience member who co-authored a section of the IPCC Synthesis challenged the assertion that carbon capture and sequestration is a necessary technology to reduce greenhouse gas emissions. In doing so, he highlighted the tension between competing emissions reduction strategies.


While COP negotiators work on the final details of the Paris Agreement, industry and government are readying their proposed solutions to reduce greenhouse gas emissions. When you have a problem like global warming, there is no shortage of proposed solutions. Unfortunately, the solutions that get promoted don’t always make the best environmental sense.


A poster child for misplaced attention is carbon capture and sequestration. The case of CCS demonstrates the powerful influences of technology, economics, and politics in determining how the world will combat climate change. Governments and companies have invested billions of dollars into developing CCS technology and piloting CCS projects. For all of their economic investment, CCS technology has yet to demonstrate that it can provide significant GHG emissions reductions. CCS pilot projects have been operating since 1996 and during that time period, they have sequestered millions of tons of CO2. It sounds impressive until compared against annual global anthropogenic CO2 emissions which exceed 9,000 million metric tons.


In 2005, the IPCC published a report on CCS technology stating that it was a key potential technology for reducing emissions. The IPCC stated that there is no single solution to reducing emissions and that a suite of mitigation efforts is required. The IPCC put CCS on a list of energy options that included energy efficiency improvements, switching to lower carbon fuels, renewable energy sources, enhancement of biological sinks, and reduction of non-CO2 greenhouse gas emissions. Each one of these options is distinctly different from CCS. In the last decade, each one of them has scaled up to produce significant emissions reductions.


Governments and industry have pushed CCS as the technology of the future for the last 20 years. CCS technology doesn’t have another 20 years to prove that it is a viable commercial-scale technology. If the economics worked, the technology would have already been rolled out across the globe.  The only industries building CCS plants are doing so with the financial support of their governments. The largest CCS plant in the world was built with more than $1.2 B in government support. Without the support it would not have been built.


When the negotiators wrap up their duties next week, the work will start on achieving the agreed-upon emissions reductions. Industry and government will have their proposals. As the IPCC author demonstrated, not all proposals are equal or necessary.

The Ying and the Yang of the Low Carbon Economy


Montgomery Cty DivisionThe call for a new low carbon economy is echoing through the halls of COP 21. In the opening ceremony, French President Francois Hollande, Prince Charles, and UN Secretary General Ban Ki Moon all urged the world to transition to a new low carbon economy.


Making that transition requires action on multiple fronts. First, countries must address market distorting and environmentally destructive fossil fuel subsidies. Second, countries must power their economies with renewable energy.


Two separate events today indicated that countries and industry are starting to make that transition. Friends of Fossil Fuel Subsidy Reform unveiled a communiqué calling on all countries to stop the subsidization of carbon intensive fossil fuels. Indian Prime Minister Modi and French President Hollande, launched the International Solar Alliance to help bring solar power to developing countries. Presented separately but connected by common goal, the two projects are cutting the path to a new clean energy economy.


Countries spend almost $500 billion/year on fossil fuel subsidies. They subsidize the consumption and production of fossil fuels. The subsidies unfairly tilt the market towards carbon intensive fossil by preventing clean energy technologies from competing on a level playing field. The FFFSR communiqué urged countries to take the money spent on fossil fuel subsidies and repurpose it to enhance education, health, and environmental programs. Countries have argued that subsidies are necessary to support the poor, who could not otherwise afford fuel. FFFSR research revealed that only 3 percent of subsidies are used to support the lowest income brackets.


The International Solar Alliance (ISA) is multi-country partnership to bring solar power to developing nations. The ISA is focused on increasing solar power generation in the 120 countries located between the Tropics of Cancer and Capricorn. Developing nations often have an abundance of solar potential but they lack the technology and finance to develop their resources. Germany, Italy, and Japan, the countries with the highest rates of solar penetration, are not rich in solar resources but are rich in technology and finance. The ISA will bring solar power to where it has the most economic and environmental potential.


The developing countries targeted by the ISA are areas where power usage is increasing. Adding renewable power to the grid in a developing country displaces high carbon emitting resources. For example, India is third largest consumer of coal in the world, it also has 300 million people who lack electricity. The type of electricity used to connect that group will have a huge impact on global climate change mitigation efforts. India is choosing the renewable energy pathway by setting a goal of 100 GW of installed solar power by 2020. India currently has 4 GW of installed solar power. To bridge this gap, India will need international financial and technology support.


India is investing $30 M USD in a new National Institute of Solar Technology with the goal of reducing regulatory hurdles, developing common standards to speed up production, developing innovative finance mechanisms, and supporting technology improvements. Estimates of the total investment needed to realize the solar potential of developing countries reach $1000 billion; a number that could be easily reached by re-tasking fossil fuel subsidies.


Developing nations have an untapped resource shining down on them. The ISA aims to spur transformative action in this field. Today, Prime Minister Modi started his announcement by stating that many Indians begin their day with a prayer to the sun. He ended his presentation by proclaiming that the ISA represents a “sunrise of new hope.” A sunset on fossil fuels would help the sun rise on a new low carbon economy future.

Carbon Tax – More of the Same or Energy Miracle?

Carbon Tax #2As we get closer to Paris, powerful voices are lining up to support a carbon tax. When you look closer, you see that the voices have different motives and divergent goals. In June 2015, six of the world’s largest oil companies sent a letter to the UNFCCC asking for a global carbon tax to be part of the new climate agreement. This month, in an Atlantic Monthly article, Bill Gates, argues we need a carbon tax to drive a low-carbon future.

Both parties call for a carbon tax but their preferred outcomes couldn’t be more different. They both see a world that needs more energy not less. But the source of that energy divides them. And their use of the carbon tax and the carbon tax revenues reveals the split.

The oil companies acknowledge that we need faster action to cut emissions. They call on the UNFCCC to “introduce carbon pricing systems where they do not yet exist at the national or regional levels” and to “create an international framework that could eventually connect national systems.” The companies say that they want a levelized international playing field where the same rules apply to all participants. What they don’t want is an energy revolution. What they do want is to retain the existing hierarchy. For them, a global carbon tax equals business certainty and economic stability. Everyone who can pay the price can continue to do business and their business model depends on exploiting the fossil fuel reserves they control. That is why their proposal avoids discussing how to spend the revenues.

Bill Gates doesn’t see the same profitable future for fossil fuel companies. He wants an energy miracle built on new energy technologies and he wants a carbon tax to fund that miracle. He argues that current proposed market solutions will struggle to achieve a 30% emissions reduction by 2030 and they will fail to produce an 80% emissions reduction by 2050.

Gates identifies a lack of research spending as the culprit. The U.S. government funds health research at approximately $30 billion per year while federal energy research only gets $6 billion dollars per year. Gates wants carbon tax revenues to fund massive investments in energy research and development (R&D).

Taxes require collection and spending. While both proposals discuss collecting the carbon tax, only Gates talks about where to spend the money. Feeding a starving energy R&D sector could kick start an energy miracle. A carbon tax that maintains the status quo will lock us into a fossil fueled future. As Paris gets closer, there will be more calls for carbon taxes. Will tax proponents want more of the same or will they want a new energy future? The answer lays in the how they spend the revenues.


New Government in Canada, New Direction on Climate Change

Canadian FlagA new day for climate policy is dawning in Canada.

Canada will be coming to the Paris negotiations with a new position on climate change thanks to a stunning electoral result in last night’s federal election. Out is the Conservative Party which held power for the past decade, in is the Liberal Party.

In the past decade, Canada has become a climate pariah. Its climate policy stagnated and even reversed itself when Canada became the only country to withdraw from the Kyoto Protocol. At COP19, Canada’s federal government was awarded the “Lifetime Unachievement” Fossil award for its persistent blocking and stalling of negotiations, and its long-standing failure to make meaningful contributions to reduce its emissions.  Canada’s per capita emissions and total emissions now rank amongst the highest in the world.

The newly elected Liberal Party has a clear position on addressing climate change. “We’ll meet the provinces within 90 days of the UN Climate Change Conference this December to develop a carbon pricing policy.” This is a stark contrast to the Conservative Party position which portrayed carbon tax and cap-and-trade proposals as job-killers, economic suicide, and the wrong thing for Canada.

The Liberal Party wants the provinces to lead in the development of a carbon tax and the federal government to serve in a coordinating role. Canada has one province (British Columbia) with a carbon tax, two provinces (Quebec and Ontario) participating in the California cap-and-trade program, and the biggest emitter province (Alberta) is increasing its emissions intensity targets and doubling its carbon levy in 2017. With provinces promoting different plans, the new federal government has its work cut out to build a cohesive national strategy to address GHG emissions.

Canada is viewed as a beacon in the world of international relations but it has failed miserably at home and at the UNFCCC to address GHG emissions. How quickly the Canadian government will act remains to be seen but last night’s election charts a new direction to Paris and beyond.

Past as Prologue? Joint Implementation and the Future for Flexibility Mechanisms

TradingA recent report by the Stockholm Environmental Institute (SEI) raises some serious questions about the integrity of the Joint Implementation (JI) program, one of the Kyoto Protocol’s main flexibility mechanisms. Since flexibility mechanisms are a core part of Geneva Negotiating Text, this report raises the question of how the UNFCCC will learn from its past mistakes as it enters into the new, post-2020 agreement.

JI is one of three flexibility mechanisms created under the Kyoto Protocol (KP) to assist Annex I Parties in meeting their emission reduction targets. JI allows Annex I countries to meet their targets by purchasing emission reduction units (ERUs) countries.  The JI program design is a creature of the changing political landscape of Europe in the early 1990s. Most JI projects transferred ERUs from Economies in Transition (EIT) countries to other Annex 1 countries in Europe. EITs were the Russian Federation and the former Soviet bloc countries emerging from communism in the early 1990s.

The KP built special exemptions into the JI program to help EITs in their transition to a market-based economic system. Decades of central planning left the EITs with inefficient and outdated manufacturing and energy production facilities that could not compete in the EU marketplace. To give the EITs an advantage, the KP let them set their emission baselines at or before 1990 levels. Since their pre-1990 emissions were significantly higher than their post-1990 emissions, the EITs immediately had a surplus of ERUs to sell into the JI market. As of March 2015, almost 872 million ERUs have been transferred through the JI program with four countries – Ukraine, Russia, Poland, and Germany – accounting for 94% of ERUs issued.

The SEI report indicates “significant environmental integrity concerns” for 80% of the ERUs from Ukraine and Russia. What are these concerns?  The main concern is the faulty determination of a JI project’s “newness” of emission reductions.  One of JI’s key requirements is additionality, which means that the emissions reduction would not have occurred without the project. The SEI report revealed that additionality claims were not plausible for 43% of the projects and 73% of the ERUs. For example, seventy-eight projects received credits for preventing the spontaneous combustion of coal waste piles, projects that cannot plausibly produce additional emissions reductions. The report estimates that unqualified JI projects resulted in an extra 600 million t CO2e of global GHG emissions from 2008-12, the first commitment period of the Protocol. How did this happen?  One main reason given was that host countries established their own lenient rules, without international oversight, for approving projects and ERUs.

This happened because KP rules allow JI projects to be approved under two very different tracks. Track 1 allows host countries approve and issue ERUs and determine if the reductions meet the additionality requirement. Track 2 gives the Joint Implementation Supervisory Committee, an UNFCCC body, the power to review projects and requests for ERU issuance and to certify JI auditors. 97% of the ERUs have been issued under Track 1, demonstrating the JI program design incentivizes countries to self-approve non-additional reductions.

Flexibility mechanisms are going to be a crucial element in getting Parties to agree to a post-2020 agreement in Paris, but they need to change how they measure and verify reductions. The SEI report lists a number of options to improve reporting and measurement practices including improving the program’s transparency by making all documentation publicly available, implementing an internationally accepted verification methodology, and banning the practice of retroactively crediting projects. These recommendations need to be implemented in the post-2020 agreement. The past doesn’t need to be the prologue for Paris and beyond.