Congrats to our Week 2 Observer Delegation on its recent publication in the Huffington Post courtesy of climate and energy reporter Ben Jervey.  In it, we recap COP19/CMP9’s last week of activity, analyzing what this “nuts and bolts” COP did and didn’t achieve. Specifically, we take a close look at adaptation, loss and damage, subnational initiatives, new REDD+ rules, and technology, all in light of the ADP’s struggle to find common ground on mitigation, adaptation, finance, technology, and capacity-building to ensure maximum participation in the legal agreement that will succeed the Kyoto Protocol in 2020.

VLS COP19/CMP9 Observer Delegation Week 2

P.S.  Given that the Huff Post version did not include all of our links, I’m pasting below the draft that includes them.

As COP19/CMP9 comes to a close, the Vermont Law School Observer Delegation reflects on what it witnessed during the second week of the climate change meeting. As the high-level ministers began arriving on Monday, the pace of negotiations ramped up. Beginning with several days of speeches about the contours of the legal agreement post-Kyoto Protocol, financing mechanisms, alternative energy, and adaptation needs in developing countries, the technical discussions of COP19’s first week turned to long days and nights of political bargaining.

In this piece, we explore what this “nuts and bolts” COP did and didn’t achieve. Specifically, we take a close look at adaptation, loss and damage, subnational initiatives, new REDD+ rules, and technology, all in light of the ADP’s struggle to find common ground on mitigation, adaptation, finance, technology, and capacity-building to ensure maximum participation in the legal agreement that will succeed the Kyoto Protocol in 2020. For more detail about these subjects and play-by-play of the most contentious issues, see our blog.

Adaptation Activities Accelerate

Although adaptation is still a relatively new idea under the UNFCCC, COP19 expanded its reach by conducting workshops to showcase achievements to date and negotiating a new loss and damage provision (covered in the next section). COP16 established the Cancun Adaptation Framework (CAN), which sought to enhance action on adaptation under the Convention. National Adaptation Plans (NAPs) were established at COP17 to help countries assess their vulnerabilities and climate change risks, and adapt to them. NAPs aim to reduce vulnerability to the impacts of climate change by building adaptive capacity and resilience. They contain four main elements: (1) laying groundwork and addressing gaps, (2) preparing preparatory elements, (3) creating implementation strategies, and (4) reporting, monitoring and reviewing data.

Bangladesh is currently working on a NAP that looks at health security, disaster management practices, and infrastructure. It currently experiences storm surges and flooding, which impacts crops and food security. Malawi wants to implement a NAP due to its vulnerability to road flooding. It currently lacks sufficient policy, institutional, and legal frameworks, and faces low awareness, skills, and know-how among the general public.

While adaptation has clear benefits, it can be expensive and so the parties ask: is it worth it? Presentations at COP19 answered in the affirmative. Emergency responses to remedy damage from climate change can be even more expensive than investing in adaptation measures. Climate change impacts, like the recent Typhoon Haiyan, often cause GDP to decrease, as developing country governments spend their limited budgets on disaster relief. By investing in adaptation up front, disasters do less damage when they hit, so not as much money is spent on reactive remedies.

While COP19 included much discussion of mitigation, parties acknowledge that even the most stringent mitigation efforts cannot avoid climate change. This makes adaptation necessary. It’s not an either/or proposition.  As the UNFCCC makes increasingly clear, international climate change law must address both.

The (R)evolution of Loss and Damage

The tragedy wrought in the Philippines by Typhoon Haiyan placed the concept of “loss and damage” center stage in Warsaw. Loss and damage would pick up where adaptation and mitigation fall short, helping developing countries to improve risk reduction and assessment, strengthen adaptation, enhance capacity building to deal with slow-onset events like sea level rise or extreme effects like typhoons, and compensate them.

COP18 set a legal mandate to establish institutional arrangements, such as an international mechanism, to address loss and damage associated with the adverse impacts of climate on developing countries.  Covering both economic and non-economic losses, it could include the loss of livelihood, damage to property, food insecurity, climate migration, loss of identity, and potential human rights abuses. Due to Russia’s blocking of the agenda, the June 2013 SBI meeting did not go forward and work on this mandate was delayed to the COP19 SBI meeting.

At COP19, negotiators worked on this SBI agenda item around the clock, trying to draft text that was responsive to developing countries’ compensation needs and developed countries’ liability concerns. Tired of Australia’s antics to scuttle constructive discussions, the G77 negotiator, Bolivian Rene Gonzalo Orellana Halkyer, walked out of the meeting at 4 am this past Wednesday morning and other G77 countries followed suit. Undaunted, high-level party delegates, co-chaired by ministers from Sweden and South Africa, attempted to hammer out a text, debating whether it should be an institutional arrangement, work program, or task force. Would it get its own mechanism under an UNFCCC institution, like the Clean Development Mechanism does, or be housed under the SBI or SBSTA, or simply sit under the adaptation pillar?

At the closing plenary, delegates approved “the Warsaw international mechanism for loss and damage associated with climate change impacts.” Controversially, it is organized under CAN’s adaptation pillar. G77+ China, AOSIS, and Yeb Saño from the Philippines made it known that this text was inadequate, as loss and damage meant “beyond adaptation.” This opposition sparked an hour huddle, with U.S Special Envoy Todd Stern and Fiji’s Sai Navoti discussing the use of “under” while surrounded by at least 50 other negotiators.

Afterward, the COP19 President announced consensus on retaining the word “under” while including an amendment requiring review of the mechanism at COP22 in 2016. Going forward, the executive committee to the Warsaw international mechanism will meet and develop a work plan by COP20; a two-year review will take place at COP 22; and the COP will make an “appropriate decision” on loss and damage governance based on this review.

Thinking Globally, Acting Locally

On Thursday, November 22, during the first-ever COP Presidency Cities and Sub-national Dialogue of the Cities Day, one environmental minister declared that “the only people with the power to actually change anything are the local elected officials.”

While international agreements on climate change have languished, cities around the world have acted. For good reason: two-thirds of urban dwellers live on the water, subject to sea level rise and lethal heat waves from the urban heat island effect. The Cities Climate Leadership Group C40 membership  comprises 40 of the 50 biggest cities of the world and represents 8% of the world’s population, 5% of greenhouse gas emissions, and 21% of the global GDP. Together, cities have the collective clout to get something done.

The COP19 Dialogue of the Cities Day, organized by the International Council for Local Environmental Initiatives (ICLEI), C40, and EUROCITIES, highlighted work that is already happening in local municipalities around the world, and sought support for it from the national and international levels. Roundtable discussions focused on adaptation, transportation, waste, and buildings. A recurring theme was the potential for a bottom-up approach that empowers local governments to combat climate change by creating a platform for continuous dialogue between cities, national government, and UNFCCC parties.

Building on this event, ICLEI (which coordinated the adoption of the Nantes Declaration of Mayors and Subnational Leaders on Climate Change in September, 2013)  advocated for a more substantive forum for identifying key priority areas of collaboration on mitigation and adaptation at the city and subnational levels during the next ADP session in June, 2014. Although the ADP decision text changed throughout the last few days of negotiations, and ICLEI did not receive all it sought, the final iteration includes cities and subnational governments in technical meetings “to share policies, practices and technologies and address the necessary finance, technology and capacity-building” and a subnational forum “to help share among Parties the experiences and best practices of cities and subnational authorities in relation to adaptation and mitigation,” both to be held at the next ADP session. In short, this COP19 decision means more meetings, reports and business as usual for the UNFCCC. But with this clear recognition of a subnational role in UNFCCC lawmaking may come more resources for the people actually doing the work on the ground.

REDD+ Is a Go

One of the more significant outcomes of this week was the package of decisions, known as the Warsaw Framework for REDD+ (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries), that the COP approved to provide a formal framework, safeguards, and funding in hopes of cutting deforestation in half by 2020 and halting it by 2030. Every schoolchild knows that the forests are the world’s lungs: this is the UNFCCC’s smoking cessation program.

REDD+ has been implemented on the ground by various development organizations, including the World Bank, USAID, and the World Wildlife Foundation, in a somewhat haphazard and experimental fashion since its conception in Montreal in 2005 and development in Bali in 2007. It was met with serious criticism by indigenous peoples around the world as another form of colonialism, with Bolivia in particular championing to keep market mechanisms out of this mitigation activity. This new version of REDD+ hopes to address those concerns. The safeguards included for biodiversity, ecosystems, and indigenous peoples’ territories, livelihoods, and rights are commendable. It may even serve as a mechanism for governments to more formally recognize indigenous land rights. Hopeful thinking? Perhaps. We will have to watch carefully how the new REDD+ decisions improve its implementation on the ground.

Good News About Technology

Developing nations will require new technologies to achieve their goals of mitigation and adaptation to climate change. At COP16 in Cancun, the UNFCCC established the Climate Technology Centre and Network (CTCN), a technology transfer mechanism that collaborates with national governments to develop and implement desired climate technologies. Two months before COP19’s start, the CTCN Advisory Board approved the CTCN Modalities and Procedures for adoption at COP19. While both SBSTA and SBI adopted the CTCN’s report, and forwarded a draft decision for approval, , the COP did not reach the agenda item.  Instead it will instead take up these items at SBSTA 40 and SBI 40 in Bonn next year.

Nevertheless, a COP19 side event organized by the UNFCCC Secretariat marked the official opening of the CTCN. While most of the world may not have noticed, COP19’s advancement of CTCN is crucial for developing nations striving to fulfill their commitments under the UNFCCC. The CTCN can now accept requests from countries’ Nationally Designated Entities (NDEs), which is good news for achieving international, on-the-ground progress for mitigation and adaptation.

Developing countries can now request from CTCN resources to develop and implement clean energy technologies. Clean energy is essential for reaching all parties mitigation targets, and CTCN can supply the requisite experts to deploy these innovative technologies. At the CTCN event, Zambia announced plans to submit a request for clean energy projects. Bangladesh has described plans to request agricultural technologies from CTCN, in order to improve crop yields. Agriculture is a main cause of deforestation, and improving agricultural practices has the direct and immediate impact of keeping more carbon out of the atmosphere. Of course, new technologies will be necessary to adapt to the effects of climate change. Following Typhoon Haiyan, the Philippines will request a collaboration with CTCN to rebuild with clean energy.

ADP:  2(b) or not 2(b)

By 2am Saturday morning – two hours after COP19/CMP9 was due to end – tired and tense negotiators left the room where they had spent the last eight hours locking horns over language in the fourth draft decision the ADP had debated since Monday. Environment ministers from Venezuela, E.U., U.K., and U.S. were in the room working directly with their negotiating teams. Yet even they left not knowing if the parties would achieve their COP19 mandate of determining the elements of the new legal agreement to be negotiated in Peru next year, signed in Paris in 2015, and put into effect in 2020.

The contested language reflects the main sticking points between developing and developed countries about constructing mitigation targets, setting timelines, balancing pre- and post-2020 mitigation, and financing.  For example, Article 2(b)’s language of post-2020 mitigation targets was changed from commitments to contributions in the final round.  This obligation, applicable to all countries under the Doha Amendment, focuses on parties doing “domestic preparations for their intended nationally determined contributions” and reporting them “in a manner that facilitates the clarity, transparency, and understanding” of them as early in 2015 as possible.  Subpart 2(d) was added to request financial support for developing countries doing this domestic work. Notably this language of differentiation eschews references to Annex 1 of the UNFCCC, even though the G77+China and AILAC asserted in every ADP session that the post-2020 agreement is made under the Convention and thus the Annex applies as is.

All parties agreed that pre-2020 mitigation commitments under the Kyoto Protocol’s second commitment period is lacking, whether in terms of number of countries (participation) or amount of GHG emissions avoided (stringency). Thus Article 4 calls on developed countries to make or enhance their national emissions reduction targets, and for developing countries to do the same with their nationally appropriate mitigation actions. Article 3 urges developed countries to follow through on the financing, technology transfer, and capacity-building work that it has already committed under the Convention, noting its ability to leverage compliance with Article 4.

How to complete the ADP’s work and how to fund it reached some resolution by the closing plenary.  On process and timelines, delegates agreed to meetings of high level ministers at both the June inter-sessional meeting in Bonn and at COP20, as well as an additional sessions in March and possibly another one between June and December. The ADP decision also noted the U.N. climate change summit that Ban Ki-Moon will host on the eve of the U.N. General Assembly’s September meeting. Thus the parties will have up to five meetings next year to turn the COP19 ADP decision into a working draft to kickstart COP20 discussions.   On finance, however, there was less resolution. Developing countries insisted on the developed countries living up to their capacity to fund this climate change lawmaking, as part of their common but differentiated responsibility, and mistrusted calls for private financing. The U.S. noted the importance of private financing as a complement to public funding, highlighting the role the latter could play in middle- and high-income countries while reserving government funds for the lesser developed countries.

Overall, while COP19/CMP9 made some progress toward Lima and Paris, it was limited by continued concerns about the transparency of negotiations and moving toward an “applicable to all” standard without some accounting for historical responsibility. As the Earth Negotiations Bulletin observed, a “sense of resolve was notably absent” in Warsaw, due as much to an absence of political will as to the vagaries of the UNFCCC process. While the REDD+ framework and other “nuts and bolts” adjustments represent real steps forward in elaborating an international system of climate change law, a question remains whether they are enough to motivate countries to continue to invest in it.

This post was written by Tracy Bach, Heather Croshaw, Alisha Falberg, Dan Schreiber, and Lindsay Speer, members of the Vermont Law School COP19/CMP9 Observer Delegation. You can read more of their observations at their COP19 blog, Substantial and sustained.