VLS COP20 delegation in Money Magazine (of all places)

Catherine Craig, third from left.

Catherine Craig, third from left.

In an article on how U.S. college students use their education in the first ten years after graduation, Catherine Craig MELP ’15 (and Northeastern School of Law JD ’15) highlighted her experience in Vermont Law School’s international climate change law course that prepares law and policy students to serve on our COP observer delegations.  Read more here.

From Lima to Paris: The Road Ahead to COP21/CMP11

This post was written by Vermont Law School COP20/CMP10 Observer Delegation members Archer Christian, Catherine Craig, Rebecca Davidson, Carla Santos, Cynthia Sirois, and Professor Tracy Bach.


From left to right: Cynthia Sirois, Tracy Bach, Catherine Craig, Archer Christian, Rebecca Davidson, and Carla Santos.

As the action in Lima comes to a close, the question becomes: What has COP20/CMP10 set into play for the negotiations in Paris next year? This COP was styled as an action-oriented one that would build on the “nuts and bolts” program of COP19 in Warsaw. In Lima, the Warsaw mandate tasked parties with further defining the elements of the new international agreement that would be codified in the Paris Agreement at COP21 and then take effect in 2020, as the Kyoto Protocol sunsetted. In doing so, Lima would mark the significant transition from the 1997 Protocol’s “binary approach” of internationally imposed greenhouse gas (GHG) emission mitigation commitments on developed countries only, to an all-in, “bottom up” approach of nationally determined contributions that, when tallied, would achieve the internationally agreed climate stabilization goal set out in the UN Framework Convention on Climate Change in 1992.

The Vermont Law School COP20/CMP10 Observer Delegation chronicled four critical parts of the Lima discussions, namely the next steps under the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM); preserving forest “sinks” by building on the Warsaw Framework for REDD+; refinements to the Clean Development Mechanism (CDM), one of the Kyoto Protocol’s “flexible mechanisms” that allows developed countries to fund GHG reduction projects in developing countries and credit those reductions against their own mitigation caps; and decisions of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), the fulcrum for pivoting from the existing treaty regime for mitigation targets to one that goes beyond mitigation goals and binds all Convention parties. Having blogged about our daily experiences at COP20/CMP10, this summary of these four, key components of the Lima talks reflects on the overall process and outcomes and what it means for la route à Paris and COP21/CMP11.

Beyond adaptation: Loss and Damage experienced now by the poorest countries

The Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM) was established at COP19 last year to recognize and begin to address the particular needs of those countries most vulnerable to loss and damage. Millions of people around the globe will experience the kind of certain and permanent losses that surpass their ability to adapt to climate change. Earlier this year, Kiribati bought land in Fiji for its anticipated climate refugees, the first nation to do so. At COP19, the UNFCCC Parties gave themselves a deadline for finalizing the Mechanism’s Executive Committee and two-year workplan in Lima.

At COP20/CMP10, the December 5th SBSTA/SBI combined recommendation to the COP contained approval of the two-year workplan submitted by the interim Executive Committee before the COP and three different proposals for the makeup of the permanent Executive Committee. In the end, the Parties agreed to an Executive Committee composition of 10 non-Annex I Party members and 10 Annex I Party members. Eight of the non-Annex I Party members are stipulated in the decision: two each from the African, Asia-Pacific, and the Latin American and Caribbean States, and one each from Small Island Developing Sates and Least Developed Country Parties. The two remaining non-Annex 1 slots are not designated.

Interestingly, the final Executive Committee composition looks like a new equation for a UNFCCC mechanism. The related Adaptation Committee is made up of 16 members, with representatives of the 5 UN regional groups (2 each), SIDS (1), LDCs (1), Non-Annex I (2) and Annex I Parties (2).) Some observers wished for greater explicit LDC and AOSIS representation on the permanent WIM Executive Committee, despite the fact that the two undesignated non-Annex I seats could potentially go to these groups. At least the WIM work can now begin.

The larger question asked repeatedly in the final 36 hours of COP20/CMP10 was how deeply anchored the concept of loss and damage generally, or the WIM specifically, would be in the ADP decision that lays the groundwork for COP21’s Paris agreement. The absence of both in the draft ADP decision text published early Saturday morning (Dec. 13) caused most developing countries’ refusal to agree to that document. Despite the fact that loss and damage can be found in the “Elements for a draft negotiating text” referenced in the draft decision’s Annex, the multiple options for how it might be addressed range from deeply anchored to not included at all. In the end, the final text accepted by consensus in the wee hours of Sunday morning referred to progress on the WIM in the preamble only. With this section’s language having no legal force, Parties’ comments made after acceptance and included in the meeting’s official record made it clear that a Paris agreement is expected to and would have to go further.

The nitty gritty of using REDD+ to “sink” carbon in the world’s forests

The Warsaw Framework for REDD+ adopted at COP19/CMP9 included seven decisions that build on the Cancun Agreement on REDD+ established at COP16/CMP6. The REDD+ Framework includes decisions on national forest monitoring systems; safeguards; forest reference emission levels; measuring, reporting and verification (MRV); results-based financing; drivers of deforestation and forest degradation; and an information hub on the UNFCCC web platform for publishing results information. Importantly for COP20/CMP10, the safeguards decision required developing country parties to start providing summary information in their national communication, including via the web platform of the UNFCCC, after implementation of REDD+ activities begins.

At COP20/CMP10, with the $10 billion Green Climate Fund 2014 goal met, REDD+ projects are already lining up around the block for funding. The question remains whether safeguards and methodological guidelines will be put in place in order to protect the rights of forest communities who will be impacted by these projects. At COP 20, SBSTA made no progress on the Warsaw REDD+ framework on safeguards.   During SBSTA negotiations, the Philippines, Sudan, the EU, Bolivia and the US advocated for developing further guidance on safeguards, but Panama, on behalf of the Coalition for Rainforest Nations, said that now is the time to implement REDD+, not to develop further guidelines.

Yet many side events at COP20/CMP10 highlighted the necessity of developing safeguards. During a side event, Looking Forward: REDD+ Post 2015,  Ms. Victoria Tauli Corpuz, the UN Special Rapporteur for Indigenous People, spoke of a dire need to create governance structures that would protect indigenous people during implementation of REDD+ projects. Notably, the Center for International Forestry Research (CIFOR) reported that REDD+ can lead to reduced access to natural resources and land tenure insecurity for locals.  CIFOR presented evidence that in order for REDD+ to offer non-carbon benefits, and indeed for it to accomplish its goal of curbing both deforestation and emissions, public participation should be integrated into the REDD+ framework under SBSTA, pursuant to principles of free, prior and informed consent.

Looking ahead to COP 21 in Paris, it is clear that REDD+ will continue to be a debated issue between indigenous people and project developers. Perhaps, because REDD+ is a market-based solution to climate change, it will always fall short of what is socially just. Regardless, REDD+ is moving forward on a global scale, and human rights advocates will continue to call for close monitoring of its interactions with local communities.

Cleaning up the CDM with an eye toward life post Kyoto Protocol

ADP Parties came to Lima with an important agenda: ensure that the clean development mechanism (CDM, for short) modalities and procedures were improved. However, little progress was made in the SBI and SBSTA meetings held during the first week – in fact, most of the mandates and analysis were further postponed to both subsidiary bodies’ forty-second and subsequent sessions (FCCC/SBI/2014/L.35, FCCC/SBI/2014/L.31, and FCCC/SBSTA/2014/L.24). The second week started with the CMP negotiations for a CDM draft decision. Besides providing further rules to key CDM issues, the CMP decision also aimed to guide the CDM Executive Board for the coming year. The CMP negotiations lasted three days, with many hours of long debates and tireless disagreements. Countries were clearly divided in two groups, even though some members often shifted from one side to another. Brazil and the European Union, one of the biggest CDM host countries and the biggest CDM regional market, respectively, expressed opposite opinions about several of the key issues, including voluntary cancellation of emission reductions units (CERs) and double-counting concerns.

Yet the negotiations concluded on Wednesday night. After the Parties finished the third read of the draft text, the CMP convened again at 9 pm. At that point 20 paragraphs were already agreed, several were agreed to be deleted, but other 23 paragraphs, with several alternatives, were still under consideration. After a long debate about what procedure should be adopted to help the negotiations move on, several Parties remind the Chair that a fourth read of the proposed text was not feasible or desirable. The Parties decided to delete all the paragraphs that were not agreed upon, leading to a final CMP decision regarding CDM. The final decision compiled a number of mandates for the CDM Executive Board to comply within the next year. In particular, the Parties requested further analysis on issues such as the revision of CDM’s baseline and monitoring methodologies, and their streamlining, registration of project activities that qualify as automatically additional, and alternatives methodologies to ensure environmental integrity. Besides the CDM Executive Board mandates, the Parties were able to agree on two issues: the adoption of a voluntary procedure for deregistration, and the flexibility regarding the verification timing for afforestation and reforestation projects.

While the CDM negotiations were intense, the uncertainty regarding CDM’s future was a clear ghost in the room. The CDM negotiations happened under the CMP, but the Doha Amendment – which established the emission reduction commitments for the second commitment period of the Kyoto Protocol – continues to not be in force. And without an emission reduction market, CDM has no future.

But CDM can once again gain force if Parties agree to an ambitious post-2020 agreement. Looking ahead, Brazil has proposed an “Advanced CDM” or simply CDM+ to the ADP. The new mechanism is explained in three simple paragraphs, and contains one main element: the possibility of voluntarily cancelled CDM CERs to be used to account for countries ’ nationally determined contributions (NDC) financial targets and pledges. Despite the lack of information regarding the proposed CDM+, several countries are already criticizing it. The European Union, for instance, used the expression “double-counting” of CERs continuously during this week’s negotiations, showing great dissatisfaction with the Brazilian proposal. While the double-counting language was not included in the final CMP decision regarding CDM, the issue will continue to surface in future negotiations if a CDM+ is considered in the new agreement.

ADP: Shifting to global peer pressure to mitigate GHG emissions through INDCs 

As was the case in Warsaw last year, final ADP decision-making was pushed to the last minute, of the last hour, of the last day of the COP20 in Lima. The ADP was originally scheduled to close on Thursday afternoon. Not for the first time at this COP, negotiators worked into the wee hours of the night on Friday hoping to come together on issues addressing how Parties will communicate their Intended Nationally Determined Contributions (INDCs), as was directed under paragraph 5 of Decision 1/CP.17 and how parties should contribute to closing the pre-2020 ambition gap. With a newly drafted decision in hand on Saturday morning (officially after the close of the COP), Parties still held clear differences on specific language and its implications.

The COP20 President, Manuel Pulgar-Vidal, had taken a very active and open stance during the last few weeks, and many have complimented his efforts to promote clarity and transparency for all Parties. As the close of the meeting neared, and with the draft decision still far from being adopted, his guidance became stronger and more determined. Recalling that Lima had been called a tipping point for the new agreement, he pled with the delegations to “help me . . . don’t leave me alone. We need to help ourselves. We are representing the world, and we are representing what the world is seeking.”

As Parties gave their final interventions, all agreed that the draft decision was not ideal for anyone. However, a dichotomy emerged with some parties endorsing adoption of the decision as it stood subject to more negotiation in Geneva this February, while others drew the red line and declared the draft unacceptable as is. Switzerland on behalf of EIG and Chile on behalf of AILAC were willing to move forward with the current draft, along with the EU, US, Japan, Russian Federation, and New Zealand. Surprising some, Singapore, Belize, and the Marshall Islands also urged Parties to move forward with the current text. Noting that his country is running out of time and its very existence is in danger from sea level rise, the delegate from the Marshall Islands made a very compelling plea: “We cannot leave Lima with empty hands on road to a successful Paris agreement.” Yet parties such as Sudan on behalf of the Africa Group, Malaysia for the LMDCs, India, China and Tuvalu were not willing to compromise the vulnerable people that they represent, and asked the COP President to reconsider the draft. The delegate from Tuvalu, in particular, noted that we should not let this COP be the one where the world’s poorest are denied.

With no consensus on this text, the meeting continued for 10 more hours, shifting to intense, behind-closed-doors negotiations with COP President Pulgar-Vidal and ministers of Singapore and Norway empowered by him to speak with parties on his behalf.  Finally, just before midnight, the COP20/CMP10 final plenary convened, a new final draft decision text was presented, and the gavel was banged. Nonetheless, despite the COP’s consensus position, Tuvalu asked for the floor and spoke intensely and purposefully to register concerns about the need for stronger loss and damage inclusion (besides the WIM progress recognition in the text’s preamble). Many other parties laid out their specific concerns about missing references to the Convention’s principles, notably equity and common but differentiated responsibility and respective capacity (CBDRRC).  Likewise concern was expressed about the changes in external review of the promised INDCs, from well before COP21 convenes in Paris on November 20, 2015 to just a month before.  Behind these specifics lies continued disagreement by developing countries over differentiation and eliminating the so-called binary system of responsibility.

In this way, the route à Paris has been laid out as a bumpy one, littered with the potholes and frost heaves borne of unresolved applications of the major shift away from “top down” international climate change obligations (as embodied in the Kyoto Protocol) to nationally driven commitments.  This mistrust — often referred to as the ghost of Copenhagen —   lingered from the opening to the closing plenary statements. The barebones text adopted in the wee hours, now referred to as the Lima Accord, necessarily deferred detailed discussions to the regular meetings scheduled in 2015 leading up to the COP21 next December in Paris.

Loss and Damage “in,” but with little meaningful impact.

th-2If you’ve followed our coverage of “loss and damage” at COP20, you’ll recall that the last process we were watching regarded its future in the decision establishing the trajectory for “the protocol, another legal instrument or agreed outcome” that is to be completed at COP21 in Paris next year. As it turns out, “loss and damage” did make into the the text of the final decision now dubbed the “Lima call for climate action.” Unfortunately, and deeply disappointing for the most vulnerable people and countries, it is captured only in the preamble in the form of “welcoming the progress made in Lima, Peru, towards the implementation of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts” (WIM).

As reported earlier, loss and damage appears in the “Elements for a draft negotiating text,” annexed to this Lima call for climate action, but without clear positive prospects.

Overall, we can state that the North-South divide so apparent within UNFCCC, continues to haunt the already emerging tragic future of those most vulnerable to, yet least responsible for the growing climate change impacts.

Loss and Damage – In or Out?

thThe evolving fate of loss and damage (L&D) and the Warsaw International Mechanism (WIM) we have been covering has been less visible during this COP than the larger ADP effort to lay the groundwork for an agreement in Paris next year. However, the absence of loss and damage in the draft decision on ADP published early this morning is among the core issues many developing countries have identified as preventing them from agreeing to the document. It remains unclear whether or not it is among the “deal breaker” points for several negotiation groups, including the Least Developed Countries, Small Island States and the Africa Group.

While we wait for Parties to reach enough agreement to close the COP 20 today, we can share some insights from a side event earlier this week that considered whether anchoring adaptation and L&D in the Paris agreement is desirable or not, and different approaches for doing so.

Panelists included negotiators Pa Ousman Jarju (The Gambia, for LDCs), Mr. Gottfriedvon Gemmingen (Germany for the EU) and Mr. Antonio CanasCalderon (El Salvador of the LMDC), along with Koko Warner (UN University) and Sabina Minninger (Bread for the World). Overall, there was significant difference between the approach of the EU and that of the LDCs, with the former focused exclusively on a risk management approach and an insistence that L&D is a part of adaptation. Of the panel, only the EU representative was opposed to anchoring adaptation and loss and damage in the Paris agreement.

Mr. Jarju, in representing the LDC position, insisted that anchoring adaptation and the WIM in the Paris agreement in equal parity with mitigation is essential because it would allow for the necessary holistic approach warranted by the inherent linkages between the three. The LDCs also support a global adaptation goal, and a financial facility able to provide swift, agile and sufficient financing for addressing losses and damages.

In his remarks, Mr. von Gemmingen suggested there were some points of convergence with the LDCs’ positions, but in acknowledging the real risks of loss and damage, he maintained that the ways to address it are through adaptation and risk management. Mr. von Gemmingen’s posited several points arguing against anchoring adaptation or the WIM in the Paris agreement:

  • Article 2 is a mitigation objective, although adaptation aspects are included and can be dealt with by mitigation.
  • The UNFCCC does not need to reinvent the wheel, and should have only a strong analytic role.
  • It is not self evident that a new instrument would be more effective than already existing instruments and model processes dealing with certain aspects of risk.
  • The work of the WIM will continue for a longer period than the new agreement.
  • Loss and damage has been dealt with under the COP, and continues to be dealt with there with all existing institutions and approaches because it belongs among the more general considerations.

IMG_0816For Ms. Warner, the crux of the question is priorities. She pointedly stated that L&D is programmed into our future because of past choices; that we need to deal with it; and that if we don’t deal with it in the Paris agreement, it will happen and we won’t be prepared, creating serious disruption to sustainable development. She also contended that the UNFCCC needs to send the signal, and that WIM must be in the Paris agreement in order to send that signal – that is the UNFCCC’s responsibility. With this issue, in Ms. Warner’s estimation a high political priority, she emphasized that whether L&D is large or small depends on the decisions here.

As we wait to see if consensus will be reached on the ADP draft decision nearly a full day beyond the planned closing of COP 20, these side event insights help in understanding the thorn this issue poses in the draft ADP decision.


One final note is that despite the fact that L&D can be found in the “Elements for a draft negotiating text” referenced in the draft decision Annex, the multiple options for how it might be addressed range from deeply anchored to not included at all. If countries clearly doomed to loss and damage can’t get it into the COP 20 ADP decision, they will very likely have a hard road ensuring its survival in the Paris agreement negotiating text.

“Hit the ground running.”

downloadWith this statement the Executive Director of the Green Climate Fund (GCF), Ms. Hela Cheikhrouhou, reported on the current status of the fund. The interactive session held on Thursday at COP 20 provided a brief overview of the latest GCF decisions, and laid out the expected deliverables for next year.  Offering an optimistic perspective, Ms. Hela affirmed that grants are scheduled to start being distributed next year in the hope that approved mitigation and adaptation projects can be presented at COP 21.  But for the GCF to be able to do so, the interested countries will have to do their homework and develop functioning institutions to tackle climate finance flow. From GCF’s part, Ms. Hela explained that procedure rules will be kept simple to allow “less process, more access.” 

This seems to be the ideal approach; climate funds bureaucracy has been one of the main obstacles for these funds to effectively reach vulnerable countries  – least developed, small island, and African countries.  But is this a fair procedure?  Many in the session raised concerns related to the hurry in approving projects for Paris 2015, and how this simplified, speed process will once again negatively impact countries that are more vulnerable to climate change impacts.  

climatefinancingsign_0The imbalance between least developed countries and larger developing countries has been seen through the years, and is present in several of the mechanisms adopted under the UNFCCC and the Kyoto Protocol.  The most critical example is the clean development mechanisms (CDM). During the first commitment period of the Kyoto Protocol, countries like China, Brazil, and India were responsible for hosting the majority of CDM approved projects. In the financing context, this gap is based on vulnerable countries’ lack of institutional capacity to properly enable climate finance flow.   

The bottom line is that less process is ideal, and it will lead to more access.  But without the right rules in place, it will not provide access to those countries that might be the highest in need. The readiness process offered by the GCF, while promising, will make difficult for these countries to take advantage of the fund resources if greater support for capacity building is not provided on time.  A lot of work will have to be done, but 2015 “hit the ground running” approach will, once again, leave the most vulnerable countries behind – the opposite direction of GCF’s goal.

Down to the Wire

This post co-written by Rebecca Davidson and Cynthia Siriois

The ADP train rolled on today. hella-lineWe began the morning waiting outside Paita, a 550 person capacity negotiation room. While waiting in the long observer line, I overheard a Party delegate from an African country complain to a UN security guard when he was denied access to the room because it was already over capacity. He demanded to speak to the Co-Chairs and it seems as though his and others’ voices were heard. The meeting was rescheduled for the much larger Cusco Plenary hall, which can seat over 1000. Even so, space was at a premium and parties and observers alike were packed into the pressure cooker.

A new draft text was released late last night that condensed the previous days 56 pages of alternative text into 7 pages of paragraphs with no more than three options each. Parties were given the opportunity to speak to which options they preferred and offer solutions if they were not satisfied with the specific language of a particular option.

Consensus of preferred options crossed and bisected “typical” negotiating bloc lines. For example, the USA, Colombia, and South Africa all preferred the language of paragraph 9’s option 3 which relates to communication of INDCs, and that includes a much broader list of scope and specifics. Japan, Australia, and Switzerland all supported option 2, which limits the “laundry list” approach to elements included in INDCs. Pakistan, Nicaragua, and the EU all preferred option 1 of paragraph 13 which discusses accelerating the full implementation of the decisions and enhancing pre-2020 ambition, while China and Cuba like option 3, which again provides a more detailed description of how that will occur (including an “Accelerated Implementation Mechanism” which everyone is questioning). Despite the seemingly odd preference spread, most parties commented that they were willing to find “common ground” and continue working to meet the COP President’s goal of finishing this decision before leaving Lima by Saturday.

Some Parties’ statements were particularly compelling, and stood out like a bright ray of sun in an otherwise dark (and sweltering) room. The EU was surprisingly vocal about coming back together and finding convergence, essentially wanting to move from a positions-oriented negotiating stance to an interests-based dialogue. They noted that many Parties are simply repeating statements made previously, and not helping to finalize a decision – especially with only hours remaining. As a model of their proclaimed flexibility, the EU crossed the mitigation-INDC line and suggested their willingness to be flexible on adaptation on a voluntary basis. The Philippines also proclaimed their interest in compromise. And of particular note (and with a round of vibrant applause) suggested that the human rights of indigenous people and women be included in the decision in Paragraph 14. Mexico also received a rousing applause. Both for their support for gender and indigenous people, as well as for their very recent contribution to climate funds. This is a landmark move made by a developing country, showing their willingness to open climate-finance doors and acknowledge the importance of addressing the needs of developing nations.

CuscoFor the first time this week, the sense of urgency was visceral and real. Parties will be working into the wee hours this morning, as we just learned that the Closing Plenary is scheduled (possibly) at 2 am Saturday December 13th, at the conclusion of the Contact Group finalizing a decision text. Keep your eyes out for it!

As the representative of Uganda quipped earlier today, we are “dancing to the tune of Mr. Climate Change”. Time to make a decision, and start heading toward a substantive agreement in Paris, 2015.

The Inevitable Linkage Discussion


Let’s face: it is almost the end of 2014 and we are still negotiating an international agreement to mitigate climate change for after 2020. The good news is that several countries have taken the initiative, and adopted climate change policies. These policies vary from emissions trading, carbon taxes, performance standards, among others. But what role will these regional, national, or sub-national policies play under the new international agreement? Yesterday, the International Emissions Trading Association (EITA) held a side event to address this question. The discussion, “Linkage Among Climate Policies in the 2015 Paris Agreement”, had as panelists leader researches on the topic: Robin Stavins, from Harvard University; Daniel Bodansky, from Arizona State University; and Dirk Forrister, from  EITA, among others. The discussion was based on the latest report from the Harvard Project on Climate Agreements, “Facilitating Linkage of Heterogeneous Regional, National, and Sub-National Climate Policies Through a Future International Agreement” (November, 2014).

The concept of linkage is fairly simple; it refers to the idea that distinct carbon pricing instruments can be linked together to meet the general goal of reducing greenhouse gas emissions. The linkage can occur is two ways: direct and indirect. The direct linkage occurs when two different schemes mutually accept the emission reduction units from one another to meet their goals. The indirect linkage occurs when two programs, for example cap-and-trade schemes, do not allow the trade of allowances between their programs, but both are direct linked to a third, common trading scheme.


As wisely explained by Daniel Bodansky, to address this issue the new international agreement can follow three distinct approaches.  The first is to expressly forbid any linkage between different carbon pricing schemes. The second approach is to be silent about the issue, and the third, preferable approach is to allow linkage between different carbon pricing schemes. Allowing linkage would provide a number of benefits to participating countries, including: cost savings; improvement of individual market, through the decrease of market power and price volatility; and equity distribution. Another main interesting point is that, as Robert Stavins (left) pointed out, allowing the linkage between different schemes can potentially increase overall national emission reduction ambitions, as more market options are made available. 

To allow linkage between different climate policies, all panelist agreed that the new agreement shall include a paragraph as simple as possible. As proposed by the panelists, the paragraph shall be limited to expressly allow linkage, define key terms, and provide basic guidance regarding tracking emissions to ensure the environmental integrity. In their opinion, further detailed rules shall be decided by future meetings of the Conference of the Parties. 

While challenging, linkage is already happening in different levels. In fact, the issue is very similar to the decision, in 1997, to allow the co-existence of emissions trading, joint implementation, and clean development mechanisms under the Kyoto Protocol. Countries are also already dealing with this issue in the national, or sub-national level. California and Quebec Emission Trading Schemes, for instance, are linked since 2013. The same is true for the European Union and Norway Emission Trading Schemes, that signed their linkage agreement back in 2007. Other linkage agreements are expected to happen as the number of cap-and-trade programs increase; up to date there are 20 regional, national, or sub-national trading schemes in operation or scheduled to enter into operation. The linkage issue will not go away, and several examples and options have already been deeply discussed. The remaining question is if the Paris agreement will take the necessary step and deal with this issue, or if the new agreement will be silent. 

Loss and Damage Mechanism – decision reached on Executive Committee makeup

We reported Wednesday that the December 5 joint SBSTA/SBI recommendation on the Warsaw International Mechanism for Loss and Damage (WIM) contained 3 different proposals for the makeup of the permanent Executive Committee. Later that night, at the COP President’s informal stocktaking, we learned that this issue had been resolved and the SBSTA and SBI Chairs had forwarded proposed final decision language to the COP President. This morning, in the COP/CMP Plenary held to adopt Subsidiary Bodies’ conclusions and decisions already agreed to, we witnessed completion of the process.

Following today’s adoption, the permanent Executive Committee of the WIM will be comprised of 10 non-Annex I Party members and 10 Annex I Party members. Eight of the non-Annex I Party members are stipulated in the decision: two each from the African, Asia-Pacific, and the Latin American and Caribbean States, and one each from Small Island Developing Sates and Least Developed Country Parties.

The decision also calls for “taking into account the goal of gender balance pursuant to the decision 23/CP.18.”

Interestingly, the final Executive Committee makeup is a seemingly new equation for a mechanism of the UNFCCC. The related Adaptation Committee is made up of 16 members, with representatives of the 5 UN regional groups (2 each), SIDS (1), LDCs (1), Non-Annex I (2) and Annex I Parties (2).

Hallway talk on Wednesday, following release of the proposed decision, was not positive. Observers wished for greater designated LDC and AOSIS representation, even if the two unassigned non-Annex I seats could potentially go to these groups. It seems we can expect the new Executive Committee’s work to be scrutinized. At least the WIM work can begin.

What a concept! The fossil fuel industry pay for loss and damage?

The COP is an exciting experience, rich with smart, creative and passionate individuals. Among them is a still relatively small network of thought leaders – researchers, attorneys, and others – advocating a new direction for mitigating GHGs and advancing accountability for atmospheric carbon contributions. In a side event yesterday panelists from the Climate Accountability Institute (CAI), Union of Concerned Scientists (UCS), The Center for International Environmental Law (CIEL) and the Climate Justice Programme explored multiple dimensions of climate responsibility and ways to change fossil fuel industry behavior using research from the Carbon Majors Project of the CAI. A particularly intriguing concept offered was a fossil fuel extraction levy to help pay for loss and damage from climate change.CarbonMajorsImage1-640x400

Focusing on the largest emitters in the world, the Carbon Majors Project research has revealed that, as of 2013, as few as 90 entities were actually responsible for 65% of the now 1.4 trillion tons of cumulative CO2 in our atmosphere. These fossil fuel extractors, refiners and sellers include investor-owned companies, state-owned companies, and national government-run industries. The power of this research is that it comes from companies’ own production statements themselves, and it accounts for mergers and acquisitions over time.

The Carbon Majors Project’s primary objective is “to quantify and trace historical and cumulative emissions of carbon dioxide and methane to the largest extant fossil fuel and cement producers.” Instead of the primarily fuel consumption-based and aggregated approach used to estimate national GHG inventories of the 6 GHGs covered by the Kyoto Protocol, this work traces emission back to those corporate producers responsible for the majority of our fossil fuels and cement. Carbon Majors’ top-20 list includes some you’d expect: Chevron, ExxonMobil, and BP – all investor-owned companies.

The trajectory of the research is to link from emissions to concentrations to temperature increase to impacts and ultimately tresponsibilityo damages. As UCS’s Peter Frumhoff put it, this work will increasingly “inform the policy, legal and social discussion about responsibility.”

The ethical dimension raised by yesterday’s panel centered on a couple of questions:

  • What might we have expected these companies to do in the face of the scientific data and information available as far back as 1988, when the IPCC was formed?
  • What level of responsibility do they have for committing us to a dangerously warming world?

According to work by the Union of Concerned Scientists, instead of taking the long view and beginning to shift to renewable fuel production, the fossil fuel industry “actively invested in sowing doubt, and solidifying its business model by intensifying exploration and extraction.”

On the legal dimension, Niranjali Amerasinghe of the Center for International Environmental Law shared the significant potential for this research to inform legal strategies. Establishing the causal chain creates opportunities for a number of legal theories, including: torts (going after past harm), nuisance, negligence (at what point was this known?), misinformation/deception, and even product liability (are these emissions inherently dangerous things?). Granted, there are huge jurisdictional challenges to putting these legal theories into practice. Nonetheless, the Carbon Majors research offers a powerful tool for holding these companies accountable. And there are side benefits to a legal angle, for instance the increase in financial risk of an asset that could become “stranded.”

Putting these pieces together, the Climate Justice Programme builds on the work of the Carbon Majors Project and CIEL in formulating the “bad faith” argument based on the violation of the principle of “no harm.” Its solution: The fossil fuel industry should pay for the damages their products have created and are creating through a levy to Warsaw International Mechanism for Loss and Damage (WIM).7-climatechang

With climate finance still currently woefully inadequate for adaptation alone, much less for means of implementation, a new source of finance is critical for ensuring that the poor and vulnerable impacted populations are not the ones who pay for the climate change loss and damage they suffer. The idea is that through the WIM, such funds could go directly to affected communities or to pay insurance costs.

Resting on key precedents such as the Oil Spill Compensation Fund (a regime to provide funding for oil spills), this levy could be based on the historical emissions of the Carbon Majors and the future extraction of fossil fuels. Taking this route could be attractive to governments and increase risk assessment capacities of companies.

Yes, the panelists and the audience acknowledged many questions and challenges, but the energy in the room was palpable. These weary champions seemed genuinely excited that they might just have something here that’s been needed for decades.

Myanmar and ASEAN Speak at COP20/CMP10

IMG_5410Today Hla Maung Thein (at left), Deputy Director of the Ministry of Environmental Conservation and Forestry spoke at the Joint COP/CMP High Level Segment. During this portion of the COP, high level government officers, presidents and dignitaries take the podium to make a statement on the state of their nation as it relates to climate change. Although an environmental minister in Myanmar, Thein spoke today on behalf of ASEAN, the southeast Asia regional organization that Myanmar chairs this year. At a recent regional meeting in Nay Pyi Taw during November, member countries endorsed a Joint Statement on Climate Change.

Minister Thein asked the UNFCCC to recognize the grave position of ASEAN states, which are prone to increasing natural disasters. Thein relayed Myanmar’s uniquely vulnerable position in climate change (in fact, the UN has ranked Myanmar as the most at-risk country for natural disasters in the Asia Pacific.) In particular Myanmar is plagued by floods and cyclones, which worsen annually due to climate change.

Regarding solutions, Minister Thein spoke to the importance of universal participation in the confrontation of climate change, and of common but differentiated responsibilities, emphasizing the importance of INDCs.  Renewable energy and clean energy development were also mentioned as ways to address the problem. On behalf of ASEAN, he welcomed the Warsaw Framework on REDD+, and reiterated the need for sustainable financing mechanisms and technology transfers. Specifically, TheinIMG_5385 encouraged developed countries to accelerate their contributions to the Green Climate Fund in a way that is effective, predictable and easy to access.

In a speech the evening before, Hrin Nei Thiam (at right), the Director General of the Department of Meteorology and Hydrology, and  head of the Myanmar Delegation, addressed the High Level Segment on the impact of climate change in Myanmar. Regarding green development, Hrin Nei Thiam touted the potential of the Green Climate Fund and other financing sources to support the implementation of REDD+. Further, Thiam addressed the importance of mechanisms such as loss and damage to address the current, significant impact of climate change on Myanmar.

The Vermont Law School Observer Delegation is pleased to work with the Myanmar State Party Delegation this year at COP20/CMP10.

Walking the Path of Hope

The UN General Assembly proclaimed December 10th as Human Rights Day in 1950…and over 60 years later, we continue to celebrate the day, but with so much more work left to do. human rights day

Today as part of the COP20 Human Rights day I attended an event hosted by several faith-based organizations, which brought together a panel of experts to talk about the devastating impacts that climate change can have on those most vulnerable without adequate resources to respond, including the indigenous peoples of the world. John Knox, UN Independent Expert on Environment and Human Rights, Reverend Henrik Grape, Church of Sweden, Hilal Elver, UN Special Rapporteur on the Right to Food and Victoria Tauli-Corpuz, UN Special Rapporteur on Indigenous Peoples came together to discuss the increasing impacts of anthropogenic climate change on human rights and on principles of equity and freedom. Specifically the group discussed solutions based on incorporating the human rights element into ongoing climate negotiations as part of COP20 and beyond.

As explained by Mr. Knox, in what started as an open letter signed by 28 human rights experts, efforts are today being taken to underscore the need for urgency in bringing forward discrete language in the development of a new climate agreement – and to reach a concrete solution.

Reverend Grape shared inspirational words of hope. PERU-LIMA-UN-ENVIRONMENT-COP20Hope, he said is the first step to walk the path of transformation. The daughters of hope are anger and courage. Anger over the inequalities, and courage to start the transformation needed for a more just and equitable world.




Australia wins the Fossil of the Day… again!

FossilSince COP 20 started 9 days ago, Australia has already won 3 of the 7 daily Climate Action Network (CAN) Fossil of the Day awards.  Last Thursday, Australia won the award for declaring that loss and damage should be an element of adaptation in the 2015 agreement. On Friday, the award was once again given to Australia due to its announcement that the country would not contribute to the Green Climate Fund (GCF). Yesterday, Australia was awarded for its silly statements, like the lack of understanding of what “global solidarity” means. But the interesting fact is that the award was given less than twenty minutes after the Australian Foreign Minister, Julie Bishop, affirmed at the Ministerial Dialogue on Climate Finance that Australia will, in fact, provide 200 million Australian dollars to the GCF in the course of four years. But shouldn’t the 200 million change of mind be enough to save Australia from its third  Fossil of the Day? CAN still does not think so

Intertwining National and International CC Policymaking at the CEQ

Yesterday we had the good fortune to have a small-group meeting with Mike Boots, Acting Head of the White House’s Council on Environmental Quality (CEQ). Initiated by our friends on the Duke Observer Delegation  to COP20/CMP10, this gathering gave the CEQ an opportunity to hear observations from us, a range of U.S. university and law school students engaged in the international climate change negotiations.  Likewise we gained perspective on the CEQ’s domestic and international climate change policymaking agenda.

After setting the foundation on the CEQ’s role in environmental advising to our envirIMG_5374onmentalist-in-chief (vs. the EPA’s  role in enviro law making and enforcement), Mike focused his remarks on the Obama Administration’s three-pronged climate change strategy laid out in the President’s Climate Action Plan (PCAP).  As explained earlier on this blog,   the legs of this stool are mitigation (“Cut carbon pollution in America”), resilience/adaptation (“Preparing the U.S. for the impacts of climate change”), and international leadership (“Lead international efforts to combat climate change”).

One take home message was clear: the U.S. cannot lead internationally without first getting its climate change mitigation act together domestically. To that end, after a marked period of state climate leadership from 2000-2008, Mike pointed out the progressive and deliberate tilt toward national policymaking.  Clear examples are the revised CAFÉ standards to mitigate emissions from the transport sector (first with cars, then with trucks) and a focus on reducing GHGs from buildings.  Building on first term successes, the White House seeks to turn to the more thorny regulation of electricity from coal-fired plants. The centerpiece of this effort is the EPA’s Clean Power Plan Rule, which after its promulgation last summer, received more than a million comments.  Viewed as “dispersed and flexible,” the draft rule was proposed at a “ripe time” fueled by developments on both coasts, like Regional Greenhouse Gas Initiative in the east and the Pacific Coast Action Plan in the west.  As the CEQ phrased it, all of this “advice” on what the draft rule got right and where it can improve will now be considered as the EPA finalizes the rule and prepares to defend it in litigation – all by summer 2015.

IMG_5378Another message was legacy.  By developing a comprehensive strategy in PCAP and then gradually implementing it, the CEQ seeks to embed best practices that will prove “durable” after the Obama Administration leaves office.  Looking at the resilience/adaptation leg of the stool, the CEQ’s recent guidance for federal agencies when responding after natural disasters provides a good example of working toward this goal.  Learning from critiques of federal responses to Hurricanes Sandy and Irene, this report seeks to shift individual agency thinking toward building and rebuilding in stronger and safer ways.  Likewise the CEQ’s Climate Resilience Toolkit.

Given that the two dozen students and professors were talking with Mike Boots in a meeting room in the COP20/CMP10 venue, the Obama Administration’s international climate change agenda was on everyone’s minds, notably the US-China bilateral announcement covered by our blog herehere, and here which catapulted two of the world’s largest GHG emitters into climate change mitigation leaders just moments before coming to Lima.  Given the shift to nationally determined contributions in the 2015 agreement, the linking of national climate change policymaking with international negotiation is reflected in the CEQ’s staffing model.

Loss and Damage Mechanism still unresolved

131206_loss_and_damageOn Friday, December 5, the SBSTA and SBI issued a combined recommendation to the COP on the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (LDM). This Mechanism, established at COP19 last year, is one we’ve been watching here at COP20. The UNFCCC Parties’ gave themselves a deadline in Warsaw for finalizing the Mechanism’s Executive Committee and two-year workplan in Lima.

Over the past year, both of these mandates have occupied the attention of the Parties most vulnerable to loss and damage and the international development agencies and others working to assist them. Millions of people around the globe will experience the kind of certain and permanent losses that surpass adaptation efforts. Case studies have already documented loss and damage by households in Bangladesh, Bhutan, Burkina Faso, Ethiopia, The Gambia, Kenya, Micronesia, Mozambique and Nepal. The LDCs report that the 2°C limit in global temperature rise (over historical levels) now being targeted by the UNFCCC will increase water stress for 350 to 600 million people, and threaten up to 15% of Sub-Saharan ecosystem species with extinction. Earlier this year, according to The Guardian, Kiribati (the first nation to take such an action) bought land in Fiji for its anticipated climate refugees. Clearly, the COP20 outcomes on the LDM are highly significant. (For more specifics on LDM, read this earlier blog post.)src.adapt.960.high.1381848848761

Here’s what we know so far:

Executive Committee make-up. The SBSTA/SBI document contains proposed language retaining the current interim Executive Committee and charging it with implementing the submitted workplan. The recommended draft decision also stipulates that the permanent Committee be elected and in place no later than March 2015.

As of Friday, the question about the size and makeup of the permanent Committee was still unresolved, perhaps because of the concerns raised about the interim Committee’s membership. Eight of the ten members are not from developing and most vulnerable countries, for which the LDM is designed.

The recommended draft decision provides one option and two alternates, all with the “aim of achieving a fair, equitable and balanced representation.”

Option 1 – 16 members:

  • Two from each of the 5 UN regional groups.
  • One from a SID state
  • One from an LDC
  • Two from Annex I Parties
  • Two from non-Annex I Parties

Alternate 1 stipulates 10+ members, balanced between developed and developing countries, with two representatives each from the Adaptation Committee, Least Developed Countries Expert Group, Standing Committee on Finance, Technology Executive Committee, and Consultative Group of Experts on National Communications from non-Annex I countries. Additionally, the Committee would include one member from an as yet to be determined list of international organizations. This composition represents the initial 10-member interim Committee, augmented with representation from international organizations.

Alternate 2 provides for 12 members “with equal representation between developed countries and developing countries.”

Closed consultations have been held since last Friday to sort out this matter. We are waiting now for release of the results, which according to the COP 20 website were concluded last night. Stay tuned.

Two-Year Workplan. It is notable that the draft decision language from the SBSTA/SBI approves the initial two-year workplan of the Executive Committee, despite the anticipated struggle to reach agreement on its content. Party submittals this fall highlighted gaps in the draft workplan, including the absence of a long-term strategic vision and concrete deliverables on finance, technology transfer, and calosspacity building.

Perhaps the larger issue  — not found in either of these two Mechanism matters — is the place of loss and damage within the larger COP context: will it achieve a level of visibility and prominence alongside adaptation (not tucked within it) as many hope? With this COP’s focus (beyond the ADP work) on the intersection of sustainable development and climate change, we might well see some strong advancement on this issue.

Will Cities Join the Climate Club?

Yesterday I attended a side event at COP20 called Taking climate cooperation to a new level: Incentives and alliances for transformative action. The premise of the panel discussion was to showcase opportunities to achieve transformative change in the climate sphere by identifying institutions and incentives that can catalyze action through low-carbon climate clubs.

I had not heard the term “climate club” before yesterday, and was interested to learn more from panel member, Mr. David Waskow, Director of the World Resources Institute Climate Initiative, who described developing support for a new kind of international cooperation among smaller groups of countries or subnational regional organizations that are willing to lead on the transformation to a low-carbon economy. These, he described as climate clubs.

Through this dGlobal protocolialogue, Mr. Waskow revealed the launch of a WRI and C40 carbon initiative of the First Global Standard to Measure Greenhouse Gas Emissions from Cities. Cities are a big deal. World-wide, cities account for more than 70 percent of global energy-related carbon dioxide emissions, and may certainly represent a leading opportunity for tackling climate change. The first step for cities is to identify and measure where their emissions come from.

This new GHG Protocol is working to give cities a standardized set of criteria and tools to measure emissions, build reduction strategies, set measurable and more ambitious emission reduction goals, and to track their progress more accurately and comprehensively.

The full protocol can be found here.