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.




First US SOTU address post COP21

Obama SOTUIn last night’s State of the Union address, President Obama’s remarks on climate change underscore the importance of national next steps après COP21.

While he didn’t overtly make new, specific pledges for climate action, Obama did place those in play in context under the second of his speech’s four main points, on innovation.  Building on his premise that “many of our best corporate citizens are also our most creative,” he queried “how do we reignite that spirit of innovation to meet our biggest challenges?” Speaking of climate change, he (like John Kerry at COP21) Obama asked “why would we want to pass up the chance for American businesses to produce and sell the energy of the future?”

He summarized initiatives to date as follows:

Seven years ago, we made the single biggest investment in clean energy in our history. Here are the results. In fields from Iowa to Texas, wind power is now cheaper than dirtier, conventional power. On rooftops from Arizona to New York, solar is saving Americans tens of millions of dollars a year on their energy bills, and employs more Americans than coal — in jobs that pay better than average. We’re taking steps to give homeowners the freedom to generate and store their own energy — something environmentalists and Tea Partiers have teamed up to support. Meanwhile, we’ve cut our imports of foreign oil by nearly sixty percent, and cut carbon pollution more than any other country on Earth.

solar jobs 2015The Solar Foundation’s National Solar Jobs Census 2015 provides some stats to back this second statement up. It reports that the solar industry has added workers “at a rate nearly 12 times faster than the overall economy and accounting for 1.2% of all jobs created in the U.S. over the past year. … resulting in nearly 115,000 domestic living-wage jobs.” As of November 2015, the solar industry employs 208,859 solar workers, representing a growth rate of 20.2% during the past year. (And read this study by Marc Jacobsen of Stanford University estimating that the US can fully replace its fossil fuel infrastructure with 100% renewable energy by 2050, with economic benefits including a net gain of two million long-term jobs (defined as jobs lasting at least 40 years)).

President Obama stated unequivocally that “we’ve got to accelerate the transition away from dirty energy.” Referring to fossil fuel subsidies and the US government’s role in providing them via public lands leased for mining and drilling, he stated:

Rather than subsidize the past, we should invest in the future — especially in communities that rely on fossil fuels. That’s why I’m going to push to change the way we manage our oil and coal resources, so that they better reflect the costs they impose on taxpayers and our planet. That way, we put money back into those communities and put tens of thousands of Americans to work building a 21st century transportation system.

energy-subsidiesThe Center for American Progress estimated last year that 24% of the US energy-related GHGs come from fossil fuels extracted on federal land and water.

Putting the US in the lead to transition away from fossil fuels to renewables is in line with the Paris Agreement’s stated objective.  Article 2.1(c) requires Parties to “mak[e] finance flows consistent with a pathway towards low greenhouse gas emissions.” Article 4.1 mandates “reach[ing] global peaking of greenhouse gas emissions as soon as possible,… and undertak[ing] rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century.” Both of these goals are means for attaining the new agreement’s long-term goal of “holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels.”

US progress on climate finance

ObamaApres COP implementation is vital to make the Paris Agreement worth the many years of hard negotiation that led to it.

So it’s notable that, just as the COP21 dust was settling in Paris, Congress quietly approved a first installment on the U.S.’s Green Climate Fund (GCF) pledge. The FY16 omnibus appropriations bill permits the Obama Administration to move $500 million from other discretionary budget streams and direct it to the GCF.  This half billion dollars is seen as a first installment on the $3 billion that the US pledged last summer. The Hill set out a short list of other political signs that US voters are sending the right signal about the importance of acting on climate change. The Guardian sees this positive funding vote as step 1 of President Obama’s full court press in defining his climate change legacy.


Getting the COP21 Word(s) Out

waiting 2Media coverage of climate change jumped in 2015.

EHN reports that since 2000, the University of Colorado, Boulder, has tracked climate coverage in news reports published by five national newspapers—The Wall Street Journal, New York Times, Washington Post, Los Angeles Times and USA Today. Their line graph tells a clear story without words: news stories reached numbers not seen since December 2009, when COP15 took place in Copenhagen.

The UNFCCC’s official attendance stats tell a similar story, with COP21 seeing growth in all categories of attendees.  Out of the total number of 30,372 blue zone credentials, 19,208 or 63% were worn by the 196 Parties; 8,314 or 27% by observers; and 2798 or 9% by the media.  The COP21 total is more than twice the total attendance of COP20, with almost three times as many country delegation attendees and about 2.5 times the number of media.  Given the COP21 agenda, it’s not surprising to see the rapid uptick in country delegates: high government officials attending only for the High Level Segment were badged along side party delegation security and administrative assistants.

But two things struck me when stepping back from the jumble of attendance details to look at larger patterns.  IMG_1166

First, the Boulder research doesn’t look back beyond COP15’s highwater mark for media interest in climate change and so misses the fact that media participants at COP3 numbered 3750, according to the UNFCCC, more than the 2800 who reported on COP21.

Second, looking at the participants listed on several country delegations at COP21 show media people badged on party credentials.  For example, China’s delegation – one of the largest – included several dozen people titled as print and television journalists.  Even Colombia, with a delegation only a quarter the size of China’s, listed a noticeable number of media.  Perhaps this is an artifact of bringing so many heads of state, government, and internal environment, foreign affairs, and energy ministries to the historic Paris meeting?  Or maybe it’s a part of a trend toward having more control over the COP words and images heading back home?  Regardless, this tilt toward party-badged media versus media-badged media raises genuine concern about the independent role of this group of COP participants.  It also likely leaves the UNFCCC Secretariat wondering if the rules that govern who may attend a specific negotiation session (e.g. Party vs. observer vs. media) need fine tuning.


More on the Paris Agreement’s MO

FullSizeRender (1)Yesterday I recommended several COP21 summaries, all of which describe the form and function of the new climate change agreement slated for a 2020 entry into force.  I noted Professor Doelle’s use of the political science framing of a “managerial approach” to international relations.

Today I offer another, similar way (I think) of putting the form and function of the new agreement into a theoretical context.  Professor Cary Coglianese analogizes it to the US domestic regulatory approach called “management-based regulation” in a post on RegBlog.  As compared to performance-based regulation, which requires specific outcomes, and means-based regulation, which mandates specific technology or design changes, management-based regulation simply directs regulated businesses to do reflective planning, report on implementation progress, and show continuous improvement (commonly called a “plan-do-check-adjust” cycle).  Coglianese notes that US national and local governments have applied this approach to food safety, workplace accidents, and toxic pollution, with many short-term gains to show.  The downside is that once the easy wins have been had, somewhere around year 6, it’s harder for self-regulation to realize the longer-term benefits that come from communal regulation.

So what does this mean for the Paris Agreement and the broader, Apres COP title of my post yesterday?FullSizeRender (3)

1.  Taking a lesson from the domestic studies, we should make hay while the sun shines.  Or as Bill McKibben puts it in this Guardian editorial, “the pistol has fired, so why aren’t we running?” We can build on the short-term benies of the INDCs — a 2015 practice run of the new agreement’s architecture that the Parties imposed on themselves at COP20 — by holding our individual governments to do more, per the Climate Action Tracker’s assessment of underperformance.  We can do a full court press from now until the global 2018 review mandated in the COP21 decision, to make it that much politically easier to up our NDC antes.  In the US, there are so many opportunities for individuals to do so via non-governmental activism like fossil fuel divestment, lifestyle/consumption decisions, and political support for municipal and regional plans that are already increasing energy efficiency, renewable energy, building code, and transportation standards.

2.  We can continue to share best practices and learn from countries that are ahead on the learning curve.  EU countries provide a wide array of lessons, given the regional organization’s choice to comply with the Kyoto Protocol.  (Think Germany and the hard work of bringing renewables into the grid.) China’s ability to experiment with new climate change policies will provide examples of what to do –  and not.  (Fewer democratic slow downs to central government action means quicker results.) Middle income developing countries in South and Central America are nimbly recalibrating the weighted average of environment and economy in sustainable development. (Did you note Brazil’s absolute economy-wide contribution?) The FullSizeRender (5)COP21 decision already calls for more pre-2020 TEP or technical examination process, but there’s nothing to stop voluntary “climate clubs” from sharing outside the UNFCCC.

3. We can support, remind, press, … President Hollande of his COP21 promise made in his closing speech to lead a coalition of governments seeking to establish a global carbon price. By starting this hard work now, after the opening pistol, we’ll be better prepared to act more boldly as the six-year honeymoon period wears off.  Hopefully, this early work on the tougher solutions will help us avoid the plateauing problem inherent in management-based regulation.

Want some more next steps?  Read here for Climate Home’s calendar.


Après COP


COP21 President Laurent Fabius leaving an all-night meeting.

Much has been written about the COP21 outcome during the last two weeks.  Most of the popular press has focused on whether the Paris Agreement accomplished the UNFCCC Parties’ intended goals.  If these goals turn exclusively on agreeing to explicit targets for staying within a 2C warming limit (akin to the Kyoto Protocol), then COP21 doesn’t measure up. (E.g. James Hansen’s take.) If they are stated with an eye on process, in terms of setting up the conditions over time for Parties to achieve this warming cap, then it did.

One could say that success is in the eye of the beholder.

From a Washington Post editorial: “The Paris agreement will not cut emissions enough to avoid serious risks. But it will get the world a good chunk of the way there, and it represents the beginning of a process in which all major emitters will be expected to step up.”

Vox concedes up front that the Paris agreement doesn’t save the planet or solve global warming, but instead “the deal is supposed to add structure and momentum to efforts that are currently underway around the world to reduce greenhouse gas emissions.”

Michael Levi of the Council on Foreign Relations walks squarely down the middle of the road on the COP21 outcome: “It begins to set up a framework for transparency and review of countries’ nationally driven emissions-cutting efforts and a process for encouraging stronger efforts over time. In doing so it meets the modest but important goals that were sensibly set for the negotiations.”

FullSizeRender (2)

The final Comite de Paris meeting.

The Guardian gets the ultimate last word when, striking a glass half full and half empty tone, it ticks off these oft noted process achievements while pointing out the ultimate weak spot: “the 70-year history of multilateral UN agreements suggests that countries will avoid their commitments if they can.”

Several researchers and think tanks have weighed in with useful summaries that flesh out the inevitable grey areas that lie between success !! and failure !!.  I recommend reading C2ES’s succinct wrap up, along with the more in depth analysis of Professor Dan Bodansky of ASU, who works closely with C2ES.

Both pieces describe the structure of the new agreement and how it sets up a process for all country parties to work nationally and collectively under it.  The key building blocks are the nationally determined contributions (NDCs) that are devised by each country based on its domestic CC agenda.  E.g. China’s focus on poor air quality, Brazil’s on maintaining forest stocks, the U.S.’s on transitioning to a cleaner energy mix via the Clean Power Plan rules, and India’s on providing electricity to its citizens, the sooner and cleaner, the better.  International submission of these NDCs for scrutiny by fellow parties and civil society organizations like Climate Action Tracker (CAT) and World Resources Institute (WRI) is the second critical step. For this transparent revealing of some 200 domestic CC plans sets up the dynamic that ultimately leads to the agreement’s only measure of international accountability. The Agreement requires NDC review every five years to determine how they collectively achieve (or not) the global objective of staying well below 2C and working toward 1.5 C.  Anticipating shortfall, at least in the near term, the Agreement also requires parties to commit to new, more ambitious NDCs after each review cycle.  This focus on process, which Bodansky points out started at Copenhagen’s COP15, leads ultimately to reliance on transparency rather than legal enforcement to promote accountability and effectiveness.

FullSizeRender (4)


A new draft paper by Professor Meinhard Doelle of Dalhousie University also includes description of the Paris Agreement’s structure, but take a step further to place it within a political science analysis. He contrasts the new agreement with the current Kyoto Protocol, characterizing the latter as being based on “the assumption that nation states will always act in self interest, requiring a global agreement that aligns their self-interest with the global interest through binding commitments and strong compliance.” In contrast, the Paris Agreement tests the premise that sovereign nations can be urged to act in the global interest “through managerial approaches that build new norms of state behavior.”  Hence the Paris Agreement’s structural focus on transparency, a collective goal, and regular interaction and information sharing.  Doelle views the new climate change agreement as an “experiment that is driven by practical realities, such as the domestic political situation in the United States, but also has roots in managerial theories of international relations.”  While the draft is currently short on this last aspect, analysis of it in the final paper will be interesting and provide context for Bodansky’s legal analysis.

And for CFR’s Levi’s IR analysis too?  For he concluded that the strength of the new agreement lies in recognizing that “the main barriers to strong action are domestic, not international, so letting the process of setting goals play out within each country, rather than around a negotiating table, makes eminent sense. Countries are not yet prepared to pursue tough punishments for counterparts that don’t follow through on their goals. Given that, the best an international agreement can do is boost the political prospects of serious climate efforts in each major country, and strengthen countries’ technical capacity to deliver. The Paris Agreement is a push in that direction. Mandatory transparency and international review, pursued properly, should highlight successes and shortfalls in each country, empowering not only international pressure but, at least as important, domestic political forces that favor stronger and more effective action on climate change too.”

In other words, stay tuned for the next steps post COP21, including the Bonn intersessional meeting in May, 2016, and COP22 in Morocco in mid-November 2016.  “Many segments [of the agreement] contain very vague language, but this kind of ‘constructive ambiguity’ is often the only way to get a deal done,” says Oliver Geden, head of the EU research division at the German Institute for International and Security Affairs. “The actual meaning will only develop over time, as a result of ongoing power struggles.”


Linking SDGs and COP21

Taylor picTaylor Smith ’14, member of the VLS COP19 delegation, now works for the U.N. and contributed this post connecting the UN’s Sustainable Development Goals (SDGs) with the COP21 negotiations.

“Any true sustainable development must address the scourge of climate change,” UN DESA’s Under-Secretary-General Mr. Wu Hongbo said just weeks before the UN Climate Change Conference (COP21) opened in Paris on 30 November. The relationship between climate change and development are clear, with climate change aggravating already existing threats to people and the planet. This is also why so many of the newly adopted Sustainable Development Goals (SDGs) have targets linked to climate.

I was a member of the VLS COP19 observer delegation in Warsaw, Poland and also a Master of Environmental Law and Policy student 2014. I now work as a Sustainable Energy Consultant at United Nations Headquarters in New York. I am located in the Department of Economic and Social Affairs, Division for Sustainable Development- Water, Energy, and Capacity Development Branch (yeah, it’s a mouthful).

2030 agendaA good portion of my daily work focuses on follow-up tasks related to the post-2015 development agenda, also known as the 2030 Agenda for Sustainable Development. Here is a little background information for you dedicated readers:

In September 2015, Member States adopted the 2030 Agenda for Sustainable Development, as a direct follow-up to the outcome of the Rio+20 Conference in 2012 when Member States committed to reinvigorating the global partnership for sustainable development and to working together with major groups and other stakeholders in addressing implementation gaps. The 2030 Agenda includes 17 Sustainable Development Goals (SDGs) and 169 accompanying targets. Among other thematic areas, Member States identified energy as one of the priorities.

Sustainable energy is a key enabler of sustainable development for all countries and all people. Countries will not be able to achieve their development goals without access to reliable and affordable sustainable energy services. Energy is critical to tackling poverty eradication, while decarbonizing energy is central to mitigating climate change. Energy powers opportunities. It transforms lives, economies and countries.

As a result of the key role that energy plays in sustainable development, a stand-alone goal for energy now exists: Energy SDG 7 is to “Ensure access to affordable, reliable, sustainable and modern energy for all”. Goal 7 contains five targets, two of which are means of implementation. SG7

Target 7.1

By 2030, ensure universal access to affordable, reliable and modern energy services

Target 7.2

By 2030, increase substantially the share of renewable energy in the global energy mix

Target 7.3

By 2030, double the global rate of improvement in energy efficiency

Target 7.a (Means of Implementation)

By 2030, enhance international cooperation to facilitate access to clean energy research and technology, including renewable energy, energy efficiency and advanced and cleaner fossil-fuel technology, and promote investment in energy infrastructure and clean energy technology

Target 7.b (Means of Implementation)

By 2030, expand infrastructure and upgrade technology for supplying modern and sustainable energy services for all in developing countries, in particular least developed countries, small-island developing States and landlocked developing countries, in accordance with their respective programmes of support.

As you can see, it’s fairly straightforward how the targets of the Energy SDG 7 align with the UNFCCC in many ways. In fact, there are so many parallels that Resolution 70/1 (Transforming our world: the 2030 Agenda for Sustainable Development) of the General Assembly explicitly acknowledges that the United Nations Convention on Climate Change is the primary international, intergovernmental forum for negotiating the global response to climate change.

What I notice as the primary difference between UNFCCC objectives and Energy SDG 7 is that the first is primarily concerned with carbon reductions while the latter has an emphasis on energy for sustainable development. 1.2 billion people worldwide still lack access to modern energy services. Think about that while our world leaders negotiate a low-carbon pathway to the future! *mind blown*

all SDGsEven though climate change is often portrayed as an environmental problem, it is also an economic and political issue. In my field of work, sustainable energy development is about reconciling the basic human right of access to energy services (for hospitals, schools, and clean cooking technologies etc.) with the need for rapid increase in renewable energy production and consumption to combat anthropogenic climate change.

For the first time in over 20 years of UN negotiations, the conference aims to achieve a legally binding and universal agreement on climate. The goal is to keep global warming well below 2°C. I hope that implementation of the COP21 outcome is ambitious enough to provide greater motivation for clean energy development and distributed renewable energy in my field of energy for sustainable development in low-income countries.

Nations in ‘Glass Houses’: The Rules of Transparency

glass houseWhile not as publicly flashy as the issue of ambition, transparency received a good deal of attention during the negotiations that brought us to the Final Agreement in Paris on Saturday. Parties had to come to a consensus about how exposed their internal policies and actions would be to scrutiny. This is a key point, each Party is a sovereign nation yet they are subjected to evaluation by an outside group. The Transparency framework therefore must be implemented in “a facilitative, non-intrusive, and non-punitive manner respectful of national sovereignty.” (Art. 13.1) Essentially, they have moved into “glass houses”. Equality in Transparency requirements attempts to prevent stone throwing.


Why is transparency so important? Parties need to be able to see what each other is doing in order to build confidence and trust in the system (Art. 13.1). The framework for Transparency is constructed around both actions and support, therefore affecting all other sections of the Final Agreement. Transparency requirements apply to Parties’ mitigation efforts, adaptation projects and policies, technology transfers, capacity-building, and financial support. Parties are more likely to act in furthering their efforts in mitigation and implementing their NDC plans if they can clearly see that others are doing so as well. Further, developed country Parties, other Parties in a position to do so, and private investors are more likely to provide resources to the developing countries Parties if they can account for the monetary flows and technology transfer.


Of course, the cross-cutting issue of differentiation plays a large role in Transparency as well. During the negotiations, recognition that some Parties would have different capacities to assess and then report progress towards full implementation of the Agreement was a sticking point. Ultimately, the “older” system of “Common But Differentiated Responsibility” or “CBDR” was replaced in the Transparency section with “flexibility” considering the respective capacities of the Parties (Art. 13.2).  This is more akin to a sliding scale of ability rather than the older systems of bifurcation. There remains special consideration for LDCs and SIDS in the establishment of the transparency framework (Art. 13.3).

Each Party will report on emissions and removals according to methodologies accepted by the IPCC, information relating to the Party’s NDC, and climate change impacts (Art. 13.7). These wipe cleanreports are to be submitted biennially, with an exception for LDCs and SIDS. The technical expert review of the information submitted will undergo a facilitative, multilateral consideration of their progress. For developing Parties, this review shall include assistance in identifying capacity-building needs (Art. 13.11). Support for the implementation of this and all other requirements of this Article shall be provided on a continuing basis. (Art. 13.14 and 13.15).

Living in a “glass house” requires that Parties keep to their promises made in Paris and that they help others with their housekeeping to clear the view of activities and support. A cleaner world will be our reward.



No Red Lines, But a Green Light for Adaptation and Loss and Damage

At this morning’s Comité de Paris meeting, COP President Laurent Fabius channeled Nelson Mandela, saying: “It always seems impossible until it’s done.” At tonight’s COP meeting, Parties adopted the Paris Agreement in a historical and long-awaited moment. While past Agreement drafts have been full of brackets, options, and red line changes, these notations are notably absent from the final Paris Agreement.

Source: Takepart

Source: Takepart

With a green light (and ceremonial strike of a green gavel) for the Paris Agreement, it is worth taking a moment to pause and look at the final Agreement language in light of what came before it. Article 7 on Adaptation starts with a paragraph on the global goal on Adaptation. In the beginning of this week, it was unclear whether this goal for Adaptation would ensure Adaptation in the context of the global temperature goal. The final Agreement established the Adaptation response in the context of the temperature limit increase. This ensures that the global goal on Adaptation is grounded in a quantitative, and not only a qualitative, target. In the final Paris Agreement, this language was strengthened by adding that an Adaptation response must be “adequate.”

Paragraph 4 focuses on Adaptation needs and Adaptation in conjunction with Mitigation. The paragraph describes how greater levels of Mitigation can reduce the need for Adaptation effort. In the December 9th and 10th versions of the Agreement, this paragraph closed by referencing “that greater rates and magnitude of climate change increase the likelihood of exceeding adaptation limits.” This phrase referenced L&D from the permanent and irreversible impacts of climate change. It also acknowledged that Adaptation, Mitigation, and L&D are closely interlinked, and that attending to all of them is important. However, this phrase on L&D did not make it into the final Agreement text. This change is part of the larger uncertainty that has surrounded the issue of L&D.

In the beginning of this week, the fate of L&D in the Agreement was very uncertain. One text option briefly recognized the issue of L&D, with a footnote that the text could end up elsewhere in the Agreement — likely in the article on Adaptation and not as its own article. Adaptation and L&D are separate issues that require different approaches, and therefore the final Agreement’s inclusion of a distinct Article on L&D is an accomplishment for the Paris Agreement. The December 10th draft Agreement separated the intention on L&D from the implementation mechanism, the Warsaw International Mechanism on L&D (WIM). Importantly, the final Paris Agreement bridged this disconnect and integrated these issues, saying that “Parties should enhance understanding, action and support, including through the [WIM].” The duration of this mechanism will play an important role in ensuring the resilience of countries who face climate change impacts in the future.

After the adoption of the Paris Agreement, South Africa channeled Nelson Mandela again, in a statement that reflects today’s achievements and the many challenges that lie ahead in addressing climate change:

I have walked that long road to freedom. I have tried not to falter; I have made missteps along the way. But I have discovered the secret that after climbing a great hill, one only finds that there are many more hills to climb. I have taken a moment here to rest, to steal a view of the glorious vista that surrounds me, to look back on the distance I have come. But I can only rest for a moment, for with freedom come responsibilities, and I dare not linger, for my long walk is not ended.

The Power of One Word


Photo Source: International Partnership on Mitigation & MRV

In international legal commitments all the power is in the verbs. And in the most recent (and perhaps final) version of the Paris Agreement, the verbs used in Art. 4 on Mitigation strengthen the actions required by developed country Parties.

Article 4.4 is on the differentiated mitigation efforts required by all Parties to the Agreement. The text released this afternoon declares that, “[d]eveloped country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets.” Conversely, the requirement for developing country Parties is that they “should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances.”

Even after a quick read, the power and effect of the verb “shall” compared to “should” or “are encouraged to” is instantly obvious. The language of “shall” is stronger; we’ve known this since biblical times. The commandment was “thou shalt not kill,” not thou should not kill, or thou is encouraged not to kill. Shall is an obligation, a command. Should is just an expectation.

Under the current Paris Agreement, developed country Parties have a positive obligation to lead on economy-wide GHG emission reductions. On the other hand, developing countries have no GHG emission reduction obligations under Art.4.4. Instead, developing country Parties are expected, or perhaps have a moral duty, to enhance their mitigation efforts. A statement supporting developing countries to voluntarily choose to try and move towards economy-wide GHG emission reductions furthers the expectation that they will enhance their mitigation efforts.

While differentiation between developed and developing Parties may seem intuitive, the “shall” “should” dichotomy is quite new in Art. 4.4. In the draft version distributed two days ago, on December 10, 2015, all the verbs were “should.”

The text read: “Developed country Parties should continue to take the lead. Each Party that has previously communicated absolute economy-wide emission reduction or limitation targets should continue to do so, and all Parties should aim to do so in light of different national circumstances and stages of development.”

Photo Source: ThinkProgress

Photo Source: ThinkProgress

This previous version of the text was a conglomeration of expectations, and all Parties were expected to be doing something to mitigate GHG emissions. But, no Parties were actually obligated to perform certain actions. As negotiations have progressed over the past two days it is clear that a hierarchy of actions has developed, and this hierarchy ensures that all Parties know what the Paris Agreement requires of them. Under this hierarchy:

WHO:                                     WHAT THEY ARE SUPPOSED TO DO:

  1. Developed Parties          Must lead on economy-wide GHG emission reduction targets
  2. Developing Parties         Expected to enhance their mitigation efforts
  3. Developing Parties         Economy-wide GHG emission reduction targets encouraged

As the final text is considered by the Parties tonight, it will be important to note whether this hierarchy of mitigation actions is preserved with “shall” and “should” or if we return to a list of “should” expectations as contained in the earlier version of the text.

***UPDATE: During the final meeting of the Comité de Paris the term “shall” was changed back to “should.” Therefore, developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets. The power of one word changed this obligation back into an expectation. The COP Presidency explained that the use of “shall” was a technical, unintended error and that the term “should” was meant to be used in the Agreement.

The new “High Ambition” Force Awakens in Paris

de brumA new group has been announced during the Paris Climate Talks – the High Ambition Coalition. It is not a formal negotiation group like the G77+ China or the Least Developed Countries (LDCs). Rather it represents a block of countries with a common position – recognition of the need for a target of less than 1.5℃.  Apparently, it has been gathering strength for the past six months during secret discussions.

During the press briefing to an unusually packed room on Friday, December 11th at 4:00 pm Paris time, the founder of the group, the Marshall Islands’ foreign minister Tony de Brum, announced that Brazil has just joined. Later that evening Australia announced its acceptance into the group.  austrailia jjoins

The composition of the group of more than 100 countries is a mixed bag of other Parties as well. There are LDCs, SIDS, accompanied by the United States, the EU, and Canada.

During the press briefing, Minister de Brum made it clear that this was a serious group that did not take their commitments lightly. If the countries are to tackle climate change, high ambition coupled with political will are necessary. Simply stated, this is the pathway to survival.  Any country that wished to join must demonstrate dedication to that goal. He further expressed displeasure at some Parties that wished to “gut the text” with a minimalist approach to the Agreement. When asked why China and India were not members, Minister de Brum answered that while they welcomed new Parties to broaden their reach, they would not sacrifice this core belief that high ambition was required in the Paris Agreement. In a later press Conference, the Chinese deputy foreign minister, Liu Zhenmin, dismissed the Coalition stating: “We heard of this so-called ambitious coalition only since a few days ago, of course it has had a high in profile in the media, but we haven’t seen they have really acted for ambitious emissions commitments, so this is kind of performance by some members” .

Further, they underscore that the Agreement must be durable and legally binding with rigorous review every five years. This may be the reason that India is so reluctant to join as it has stood by its position for review every ten years. The member Parties agree that they cannot go home without the ambition that they are fighting for; they are determined for its inclusion in the Paris Agreement. During a Press Conference on Monday, December 9th, Secretary Kerry announced the United States’ participation in the Coalition stating : “Addressing climate change will require a fundamental change in the way that we decide to power our planet. And our aim can be nothing less than a steady transformation of a global economy.”  Minister de Brum called for decarbonization as well, this is not just about a temperature target. Clearly, to reach this goal, the framework for transparency will be critical ; “so everybody knows what we are all doing”. Finance, one of the hot button topics, is also critical to the success of a high ambition goal; the 100 billion pledged will need to be actually delivered. Other mechanisms for securing future finance flows, technology transfer and capacity-building must be included in the text for developing Parties for full implementation of their mitigation and adaptation plans. The German Environmental Minister, Barbara Hendricks, further noted that what was needed was a “fair and modern system of differentiation”, one in which every Party contributes to emissions reductions “as much as they can.” After all, she concluded, the Paris Agreement “is more than just a piece of paper.”


Climate Justice may be Blind, but it isn’t Mute.  

blind justice

Several concepts and phrases have been bantered around for inclusion in the Paris Outcome document. Most of it centers on the differences between the wealthy nations and those who are not.  “It’s [the issues are] about differentiation, equity, and climate justice.” – India’s Environmental Minister – Prakash Javadekar. While much of the talk has centered around the concept of “Common But Differentiated Responsibility” or “CBDR” for short, the climate justice advocates are concerned about the differentiated impacts of climate change. There is no question that climate change hits the world’s poorest people the hardest. There are many groups advocating for “Climate Justice”; they range from the Indigenous Peoples, to the women’s rights groups, to youth advocates. They are all striving for one common goal – the recognition of particularly vulnerable populations who disproportionately bear the brunt of climate change impacts.

As the Parties are busily reviewing the text this Friday, two separate press conferences were held on this very topic illustrating the urgency and passion with which these climate justice advocates are pushing for acknowledgement in the final text. In the early afternoon both the Friends of the Earth International (FEI) and the World Wildlife Fund (WWF) directly addressed this issue and it infused much of the talk at the press briefings of other entities like Centre for Science and Environment (CSE). These groups were concerned that the newest Paris draft release on Thursday night “regressed as to equity” (Sunita Narain of CSE).


Key to understanding their positions is the underlying problem of the lobbying strength of rich corporations. Indeed, the WWF highlighted the extreme influence of the Koch brothers in North American politics and control of fossil fuel resources. Climate Justice requires that civil society holds the negotiators accountable to the people who are most affected by climate change. Political influence appears to be blocking the practical solutions to address mitigation, adaptation and the mechanisms to enforce the needed long-term goal of staying under 1.5℃. Under WWF’s view, the Draft Paris Outcome is a “great escape for polluters and a poison chalice for the poor.” It appears that the mitigation dates and targets are gone from the text, as is the science regarding the achievement of net zero emissions and climate neutrality.


The Center for Creative Ecologies

The Center for Creative Ecologies

Practically speaking, the WWF also highlighted what the ramifications of a weak Paris Agreement would mean for the majority of the world’s population. Food insecurity would increase as the climate change impacts affect not only the soil and water conditions but also the farmers’ land use rights. They stressed that the agricultural producers need support at the subnational level to maintain the farmers’ access to land and the means of production. These small-scale farmers make 80% of the food the world consumes. WWF Nigeria pointed out that decarbonization has been removed from the latest Draft Text. This would undermine one of the core elements of the Agreement, the energy transition to renewables. This is a matter of energy security. For much of the South, the lack of transition to renewables means dispossession of land by big companies. What is needed is “energy decentralization and energy democracy.” Both of these issues are tied to the need to move beyond the “climate smart” rhetoric to a system that is truly fair and equitable to the people of the land, not just equity among countries.


towerPart of the Climate Justice argument rests upon those cross-cutting issues of differentiation and financial responsibility. The argument to place human rights in the text beyond the Preamble is important so that the mechanisms take those rights into consideration. It is vital to prevent the political tradeoffs between the 1.5℃ target and loss and damage concessions; this pits development against ambition. As CSE noted, by the time India is ready to use its fair share, there will be no room in the carbon market for them. That is why finance, technology transfer, and capacity-building are so critically important. Developing country Parties need to access these resources to move forward quickly in sustainable development. They simply cannot afford to wait. Much like the situation on the whole Climate Deal – the world simply cannot afford to wait.


Who Should Pick Up the Tab for Capacity-Building?

It’s appreciated (or even expected) when the firm’s partner picks up the bill for a new associate, or when a professor treats his student to lunch. Those who are more established and financially secure tend to lend a helping hand to those still making their way in the world. Apparently, this concept does not hold fast on an international scale, particularly when it comes to capacity-building.

iccad-leaning-adaptation_0Article 8 capacity-building measures aim to increase capacity in countries that do not have the expertise, tools, support, and/or knowledge to address climate change. Expectedly, the poorest countries are the most vulnerable to the adverse impacts of climate change, e.g., threatened water resources, the spread of disease, increased malnutrition, and agriculture. The countries that need increased capacities the most need technical and financial assistance.

So who is going to pick up the tab for international capacity-building efforts? Developing countries point their fingers at the large, industrialized nations that continue to play primary roles in climate change.

Developing countries insist, “it’s not that we don’t want to improve our capacities, but rather that our people tend to be uninformed, uneducated, or limited by national and financial resources.” They say, “you made this mess, now clean it up.” Developing nations firmly hold that developed nations should be required to help less able nations cope with climate change.

Developed countries respond, “it’s not that we don’t want to help, but we would rather concentrate efforts in on our home soil. But good luck!” Major emitters are not eager to share their resources.

Are developing countries hung up on historical responsibility? Are developed nations reluctant to recognize their role and responsibility in the current climate crisis? Upon whom will financial accountability fall when the Paris Agreement is finalized this weekend?ccrd rep

The Sustainable Development Mechanism AKA The New Carbon Market Mechanism



Photo Source: IBNLive

The Sustainable Development Mechanism is a new mitigation mechanism established in Art. 3 ter of the draft Paris Agreement. The purpose of this mechanism is to “promote the mitigation of greenhouse gas emissions [in developing country Parties] while fostering sustainable development….” In order to achieve its goals, the mechanism provides incentives for successfully mitigating GHG emissions. Under this mechanism, Parties that contribute to the reduction of GHG emissions in a host country Party can benefit from their mitigation activities by using the resulting emission reductions to fulfill their own mitigation ambition requirements.

Overall, the structure of the Sustainable Development Mechanism closely resembles the Clean Development Mechanism, which is the carbon market mechanism in the Kyoto Protocol. Carbon markets and offsets were created under Art. 6 of the Kyoto Protocol, which states that “…any Party included in Annex I may transfer to, or acquire from, any other such Party emission reduction units resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases in any sector of the economy….” Additionally, the Clean Development Mechanism was established under Art. 12 of the Kyoto Protocol, which provides a process for handling all of the carbon credits created under Art. 6.


Photo Source: YaleNews

Ultimately, the major difference between the new Sustainable Development Mechanism from the Clean Development Mechanism is that carbon markets will no longer be limited to developed country Parties. Instead, all Parties will be able to participate in this mechanism. Expanding the scope of a carbon market mechanism to allow all types of Parties to participate in transferring mitigation GHG reductions is unprecedented. We don’t know how all Parties will use this mechanism or how successfully it will address sustainable development issues. Therefore, a  s a successful Paris Outcome appears to be on the horizon, this new carbon market mechanism is one more aspect of the Agreement that will be worth watching develop.



Where to Next? Climate-Induced Migration

2015-08-06-1438884195-3002752-climatechangeToday is human rights day at COP21. “Human Mobility and Climate Change” was a timely event that shined a light on climate-induced migration.

Climate change drives human mobility, and is projected to further increase the displacement of populations. While migration is generally a voluntary movement, human mobility displacement occurs in situations where people are forced to leave their homes. COP21 gives policy-makers an opportunity to mitigate the displacement of populations that lack the resources to address extreme weather events.

Past UNFCCC processes have recognized the significance of human mobility; the first reference of population displacement emerged in Cancun. It made another appearance in paragraph 7 of the 2012 Doha decision. Nicolas Hulot—Special Envoy of the President of the French Republic for Protecting the Planet—is pleased that the draft texts that have been submitted for agreement in Paris thus far mention migrants in paragraph 10:

Emphasizing the importance of Parties promoting, protecting and respecting all human rights, the right to health, and the rights of indigenous peoples, migrants, children, persons with disabilities and people in vulnerable situations and under occupation, and the right to development, in accordance with their obligations…

The panelists said they now feel justified in their outspokenness regarding climate migrations. Still, most yearn for better research and increased capacity-building.

Jan Egeland of the Norwegian Refugee Council reported that 11 million people were displaced last year from conflict and violence. In 2014, one person was displaced every two seconds. However, social and political conflict are not the only instigators of mass displacement. Few realize that the number of people displaced by natural disasters since 2008 is 22.5 million. Climate change has plagued societies with food scarcity and water resource issues. The Pacific Islands have had two Category 5 typhoons just this year. South Africa is dealing with threatened food security. Countless other countries are heavily affected by droughts.

Egeland encourages States to recognize this “mega-problem” in a legally binding document, and agree that displaced persons have (1) the right to receive assistance if they are forced to flee, and (2) the right to rebuild, live, and integrate elsewhere if they cannot return. “We are way behind in protection and assistance to this group” of which Egeland says “we haven’t even recognized the size.”

lr-figure8UNHCR’s Assistant High Commissioner for Protection, Volker Turk, argues that protection must be central to the international response to human mobility. Assistant Secretary-General Kyung-wha Kang agrees. She urges policy-makers to mitigate consequences, and to ensure that displaced people are protected and their rights preserved. She says we need to integrate displaced people and support migration and relocation as part of climate control adaptation. Kang calls for a shift from crisis response to crisis risk management.

Kang pointed out that only one percent of international aid went to disaster risk reduction between 1991 and 2010. World leaders need to manage the risks that “we already know.”

Seb Dance is a member of the Committee on the Environment, Public Heath, and Food Safety. He predicts that COP21 is going to be the most successful COP thus far. However, he fears that existing policies are outdated and might undermine commitments made in the Paris Agreement. He warns from repeating the “same mistakes we’ve been making for decades.”

The climate crisis has become the “ultimate injustice;” climate change affects mostly individuals who played no part in creating it. Hulot believes humanity can be recovered as the “major feeling that brings people together.” Regardless of the content of the Paris Outcome, he says, this is only the beginning.