Climate litigation updates

It has been a busy last month for climate change in the courts. Decisions recently issued by French, UK, and Canadian judges have affirmed domestic mitigation obligations that underscore the Paris Agreement’s role in setting shared climate change norms.

I published this law review article four years ago, which described a range of climate change cases filed around the world and analyzed how the Paris Agreement, and the UNFCCC more broadly, influenced them. A lot has happened since then.

Let’s start with the most recent decision and work backward to those chronicled in my article, to discern any new trends.

United Kingdom

The Guardian reported on Feb 27 that the Court of Appeal (Civil Division) had ruled that day that Heathrow Airport may not build a third runway because the government’s airport policy had not accounted for the UK’s climate change mitigation pledges under the Paris Agreement. The case, captioned as R (Friends of the Earth) v. Secretary of State for Transport and others, had two issues on appeal: 1) the reliance interest of private developers on the Heathrow Airport authority’s decision to build the third runway and 2) the validity of the Airports National Policy Statement (ANPS) on new runways in southeast England prepared by the UK Secretary of Transportation in June 2018 under section 5(1) of the Planning Act 2008. (If you want more on the first issue, see this Cliff Notes summary of the 83-page decision.)

On the second issue, a host of plaintiffs – FoE, Greenpeace, Plan B, London’s mayor, and various city burroughs – argued that the process for producing the ANPS was legally flawed because it did not account for the runway expansion’s negative impact on the UK’s climate change commitments. The Court of Appeal agreed and reversed the lower court’s decision, specifically relying on section 5(8) of the Planning Act’s requirement that the reasons behind government policy statements like the ANPS “must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.” Simply put: “The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS, but was not.” Because it wasn’t, the Court of Appeal declared that the Planning Act was not followed and therefore the ANPS is invalid.

(Quick note: Other bases for challenging the ANPS, under the Habitats Directive and the Strategic Environmental Assessment Directive, did not prevail on appeal.)

The Court’s decision is straight forward. Yet aspects of its reasoning are nuanced and striking, and merit delving into more detail.

First, the UK has robust climate change laws and institutions to implement them. The Planning Act – akin to NEPA in the US – contains a provision that explicitly requires addressing the government’s climate mitigation and adaptation policies. Through its Climate Change Act – also of 2008 – Parliament has domestically legislated to bind the UK to a net domestic carbon reduction of at least 80% below its 1990 emissions baseline by 2050 (emphasis added). The CCA created an evidence-based and independent Climate Change Commission (CCC), which advises the UK government on emissions targets and reports mitigation and adaptation progress to Parliament. In sum, the UK has put in place legal structures for taking dynamic domestic action on climate change. It was these laws that provided the scaffolding for Heathrow’s third runway challengers to force the government to connect the dots between its transportation and climate change priorities.

Second, the UK’s ratification of the Paris Agreement makes it part of the “Government policy subject to inclusion under the Planning Act, despite debate about how current domestic climate change law may not fully implement it. The Court of Appeal disagreed with the lower court’s conclusion that the CCA’s reduction target is the extent of government policy that need be – and was – taken into account when approving the ANPS. Instead it looked more broadly at the UK’s obligation to make and communicate nationally determined contributions (NDCs) under the Paris Agreement, and pursue domestic measures to achieve them – all with the aim of keeping global temperature rise “well below” 2C and pursuing efforts to limit it 1.5C. In adopting, signing, and ratifying the Paris Agreement, the UK repeatedly and publicly committed to these obligations. The Court of Appeal viewed these actions as one kind of “Government policy” that must factor into the Planning Act’s purview. Moreover, in relying on the CCA for implementation of international treaty law, the Government knew that the CCC had recognized the Paris Agreement as more ambitious than the CCA’s domestic target, but had not recommended revision because an 80% reduction was already a stretch. The CCC had also acknowledged the possibility that the CCA target “could be consistent with” these new temperature goals. Yet at a pre-trial hearing, the Government had conceded that it had not taken account of whether “the Paris Agreement differs from the 2008 Act in any relevant, significant way.” This, according to the Court of Appeal, was the failure: “if the Secretary of State was to comply with his duty under section 5(8) of the Planning Act, the implications of the Paris Agreement for his decision, and whether they were different from the implications of meeting the targets under the Climate Change Act, were matters for him specifically to consider and explicitly address in that very exercise.” Anything less would result in a cramped interpretation of “Government policy” and limit the Planning Act’s purpose and reach.

UK Transport Secretary Grant Shapps, in Guardian interview,
says that the UK is “absolutely determined to live up to our
commitments on behalf of this country
and to future generations.”

The UK government has announced that it will not appeal the decision. The private entities, including Heathrow Airport Ltd, have not ruled it out. As Grant Shapps, UK Transport Secretary makes clear, while Heathrow growth is favored by the government, runway expansion must fit within the government’s net zero by 2050 climate targets. The Court of Appeal recognizes that the government could try again on a new ANPS, this time expressly accounting for the Paris Agreement.

But does this all add up to The Guardian’s claim that this ruling is “the first major ruling in the world to be based on the Paris Agreement and may have an impact both in the UK and around the globe by inspiring challenges against other high-carbon projects?”

  • Not so on the first part. The Urgenda decision, which began in the Netherlands in 2015, takes the blue ribbon.
  • On the second, certainly this case is already having in impact on the UK, with the Government not appealing it and PM Boris Johnson using it politically to boost his COP26 leadership and bolster his already established position against expanding Heathrow.
  • Could it inspire litigation in other countries and confirm commitments made under the Paris Agreement? Absolutely, especially for those who have similar planning acts that provide for this kind of judicial review. The Court of Appeal’s decision provides a meticulous playbook for the statutory interpretation arguments and selection of relevant evidence.

Alok Sharma, the newly appointed COP26 President referenced in an earlier blog post, underscores the need for government to connect the dots: “The only economy which can avoid the worst effects of climate change, and thus continue to deliver growth, is a decarbonized economy. Our choices will make or break the zero-carbon economy.”

France

At the end of December 2019, France’s Conseil d’Etat ruled that a national law to limit hydrocarbon exploitation did not infringe a French oil company’s right to peaceful enjoyment of its private property. It did so by reasoning that France’s 2016 ratification of the Paris Agreement required implementation of national laws like this one and that the legislature had not exceeded its authority.

Law n° 2017-1839 of December 30, 2017 was enacted to gradually end research and exploitation of hydrocarbons during the year following France’s ratification of the Paris Agreement. The law 1) banned new hydrocarbon research permits on French territory and 2) limited the renewal period of existing mining permits. IPC Petroleum France SA (a US subsidiary) requested and received an extension of its current mining permit until the statutory deadline of January 1, 2040. Then it sued the French State, arguing that the time limitation violated the company’s right to peaceful enjoyment of property under Article 1 of Protocol n°1 of the EU Convention for the Protection of Human Rights and Fundamental Freedoms and the permit renewal provisions of Article L. 111-12 of the French Mining Code.

The Conseil d’Etat first reasoned that the EU Convention requires that national laws strike “a fair balance between the infringement of these rights and the grounds of general interest likely to justify it.” It then concluded that this Mining Code provision clearly explained the need to balance the interests of mining concessions with those of the general public. It ruled that setting 2040 permit extension deadline in the 2017 law, more than 20 years after its adoption, balanced France’s commitments under the Paris Agreement to limit climate change with the peaceful enjoyment of private property. IPC Petroleum France’s request was dismissed and Law n° 2017-1839 upheld.

This decision by the Conseil d’Etat firmly establishes that combating climate change is in the public interest and that the Paris Agreement represents a nation’s intention to commit to it. It highlighted that the legislature established the 2017 mining limits “to achieve the general interest objective of limiting global warming and respecting the international commitments made by France under the Paris Agreement.” It even takes a step further, resolving the potential ambiguity about a company’s use of extracted fuel for energy or non-energy purposes by setting the default presumption “that the objective of combating climate change presupposes limiting the exploitation of fossil hydrocarbon reserves, whatever their use.” Finally, it underscored the reasonableness of the 20-year lead time for the permit extension deadline, which gives companies time to recoup their mining investments made ten to fifteen years in advance.

In sum: While not as detailed in its analysis of the Paris Agreement’s impact on French national law and EU regional law as the recent UK decision, it puts the Agreement front and center as the public interest reason for country Parties to restrict GHG emitting activities.

UK’s full-court press on climate diplomacy

Un grand merci to the French think tank, IDDRI, which recently blogged about the UK presidency’s plans for the November 2020 COP26. It was announced on February 13 that Alok Sharma will serve as the COP26 President. His new job title is Secretary of State for the Economy, Energy and Industrial Strategy. Two weeks later, five thematic priorities were announced:

  1. adaptation,
  2. finance (Mark Carney, former Governor of the Bank of England who is involved in corporate risk disclosure initiatives, will serve as special advisor to the Presidency),
  3. nature,
  4. energy transition, and
  5. clean road transportation.

Interesting that the nature priority – branded at COP25 as “nature based solutions” – is viewed as a potent diplomatic strategy. It could strengthen the relationship with China, which championed NBS in Madrid and will preside over COP15 of the Convention on Biological Diversity (CBD) next October. The NBS focus is also seen as having the potential to break the Article 6 log jam that forced both COP24 and COP25 into overtime with no market rules resulting. Funding for conservation would not only interest China, but importantly, Brazil, the dominant stumbling block on market mechanisms at the last two COPs.

The energy transition and transportation priorities feature the UK’s current climate change strategies, specifically the Powering Past Coal Alliance co-started with Canada at COP23. So a chance to shine.

Alok Sharma – UK Parliament official portraits 2017

The UK has appointed two special envoys, John Murton of the Cabinet Office and Nick Bridge of the Foreign Office, and a “high level climate action champion,” Nigel Topping, formerly of We Mean Business and the Carbon Disclosure Project. But there have been some serious stumbles up to this point, as chronicled by Camilla Cavendish of the Financial Times, and time is running short.

Recognizing the diplomatic effort invested by the French government in the lead up to COP21 and the Paris Agreement, the Economist highlights that “Britain has been handed the opportunity to prove, post-Brexit, that it can be a world leader on a pressing issue. It could do worse than swallow its pride and learn a lesson from its neighbors over the Channel.” Indeed.

But 2020 presents a much different political climate than 2015. The US notice of withdrawal filed last November means that the UK will not benefit from pre-COP US political overtures to China, Brazil, and India, as the French did five years ago. US complacency also incites these emerging economies – Brazil, mostly vocally – to pull back their climate mitigation ambitions. BREXIT’s impact on UK-EU trade relations will make diplomatic efforts even harder. While Italy will sponsor the October pre-COP meeting in Milan and the two countries could be seen as a UK-EU alliance, closer to home COP26 host Scotland does not support BREXIT and will likely not hide that fact. IDDRI notes that we should keep an eye on the Leipzig summit between European heads of state and China’s Xi Jinping scheduled for September, where departing Chancellor Angela Merkel has a last shot at forging EU-China leadership on climate change.

Why you have to understand COP24 to unpack COP25

Copenhagen. Paris.  COP15.  COP21.

EIG, AOSIS, LDC negotiatiors huddle over the decision language on the IPCC 1.5 report. Patricia Espinosa watches from behind.
(Photo: Tracy Bach)

These are the most recent international climate change  meetings that everyone knows.  COP15 in Copenhagen marked a low point in multilateral environmental cooperation, with the “back room” deal by the top global emitters not accepted by the 197 Parties who must agree on its actions by consensus at its closing plenary.  Hence the Copenhagen Accords were seen as a political document, not a legal one.

Six years later, after annual negotiation sessions, these same Parties adopted the Paris Agreement, a new treaty under the UNFCCC that was ratified so quickly – only 11 months – that the Parties were caught unprepared with the specific rules on how to implement it. A definite political high point.  Knowing that, the Parties created a work programme to put the necessary pieces of the Paris Agreement puzzle in place.  The deadline for completing it was last December, at COP24 in Katowice, Poland.

In the run up to COP24, Executive Secretary Patricia Espinosa described the Paris Agreement Work Programme (PAWP) as “more than a set of rules, it will unleash the power of the Agreement itself.”

How is that?

It’s because 185 Parties – 184 individual countries and the EU – agreed to design the Paris Agreement around three legal obligations intended to harness “bottom up” participation and ambition. These are:

  1. pledging nationally determined contributions or NDCs,
  2. transparently and regularly reporting their progress on them, and
  3. collectively taking stock on how current NDCs are achieving the goal of keeping global temperature rise “well below” 2C.

Through the NDCs, individual countries commit in writing what they will do to mitigate their GHG emissions and adapt to locked-in climate change impacts.  Developed countries – the ones whose industrialization caused this warming – also say in their NDCs how they will help other, less developed countries to mitigate and adapt through financial, technology, and capacity-building support. The range of NDC pledges reflects the range of countries’ development status.The good news is that so many countries filed them.  The task for COP24 was agreeing on implementation guidelines that promote a uniform understanding of them.

Then, through an “enhanced transparency framework,” countries file reports via a publicly available UNFCCC portal on specific actions taken.  For mitigation, this means totaling up how many GHG emissions have been reduced or sequestered, by gas and sector.  These kinds of calculations have been required of developed country parties to the Kyoto Protocol for over a decade.  Given the learning curve for other countries, the precise contents of these reports and whether all countries will make them every two year were the key facets of these Paris Agreement guidelines.

Finally, the global stocktake or GST serves as the linchpin for these individual country efforts.  Every five years all the Paris Agreement parties will collectively assess whether their individual contributions, when added up, have been enough to meet the Paris Agreements goals of staying well below 2C, and mid 21st century carbon neutrality.  The October IPCC special report on 1.5C underscored the existential importance of meeting the more ambitious goal expressed in Article 2 of the Agreement. So agreeing on what information should inform the GST and how to conduct it were the core implementation guidelines negotiated at COP24.

So how did it come out?  See my next post for my view on it.

*****

Before you do, consider Espinosa’s comments about the IPCC 1.5C report at the pre-COP.

When opening the meeting, she underscored how warming poses risks to all of humanity and why action at COP24 in response is critical.

“Let us never forget that climate change, if left unaddressed, will take almost every single challenge humanity faces and make it worse. It will destabilize the global economy, which will affect all nations. By 2030, the loss of productivity caused by a hotter world could cost the global economy 2 trillion dollars. It will create conflict over resources and impact migration. It’s estimated that climate change could displace between 50 million and 200 million people by 2050.

Worse, it will result in incredible suffering and hardship for people and societies throughout the world.

But addressing climate change, and committing to a low-emissions future—one that is more resilient and sustainable—offers incredible opportunity. It’s not just an opportunity to do the right thing—it’s an opportunity to completely transform the way we produce and consume, and the way we live. And that means new markets, new businesses, and, for so many people throughout the world, new jobs…quality jobs…a just transition to a future that is just for all people. As Secretary-General Guterres so clearly put it, the idea that tackling climate change is expensive and could harm economic growth is nonsense. In fact, the opposite is true. The International Labour Organization reports that the green economy could create 24 million new jobs globally by 2030.

Ladies and gentlemen, incredible opportunity exists if we embrace a low-carbon future and unleash the power of the Paris Agreement. But we must first achieve our very specific goals at COP24. I ask all of you to take one message back to your countries: that people of the world want us to achieve results at COP24 and we intend to reach those goals.”

Where we left off in Katowice

Much was written about the outcomes right after COP24. All point to the progress in providing detail for all of the Articles listed on the PAWP, except Article 6 on cooperative (markets) mechanisms.  C2ES acknowledged the Rulebook achievement as “pivotal” while noting concern that the politics surrounding the COP’s tepid acceptance of the IPCC 1.5C report might signal the lack of high-level political leadership for putting them into practice. The World Resources Institute (WRI) concluded that “while not perfect, the Rulebook provides an important foundation for countries to move forward and operationalize the Paris Agreement.”  Carbon Brief noted that “countries wrestled with the ‘four-dimensional spaghetti’ of competing priorities as they clashed over how to recognize the IPCC special report on 1.5C ” and use those findings to spur greater ambition in the 2020 NDC revisions. The Wuppertal Institute saw the Rulebook as helping the Paris Agreement ship move out of dry dock – finally.

Here is my take on the three key Paris Agreement articles and their attendant COP24 guidelines, and how Parties “got to not no” on them.

The Article 4 guidelines on mitigation aspects of NDCs come in four decisions.  Decision 4/CMA.1 conveys the NDC information that Parties are expected to use when making mitigation pledges, beginning with their 2020 updates.  Annex 1 of the decision details the kinds of information required “to facilitate clarity, transparency, and understanding (CTU),” like base lines, time frames, scope of coverage, and methodologies. Annex 2 mandates using IPCC emissions accounting guidance,unless it cannot be applied to that kind of NDC pledge. Decision 5/CMA.1 sets out how to use the public registry for recording these NDCs.  Getting to not no on these guidelines was relatively easy.  On the technical level, most of these categories of information have been under discussion since COP19 and have been used under the Kyoto Protocol.  So few surprises, and sufficient time to get used to and make comprises on some.  On the political level, given that Parties retain the right to self determine what kind of mitigation pledge they make, the technical component form follows the nationally determined function … meaning that the pages of CTU information required ONLY apply once a Party makes a pledge that invokes them.  Again, given that Protocol countries are accustomed to gathering and communicating this kind of information, they had little to oppose.  Given that almost all developing countries made sectoral pledges, not economy wide ones, most of the CTU categories either don’t apply or are not formidable.  Hopefully this is a case where consensus means that behavioral norms are actually in line with the guidelines.

In contrast, Parties did not agree on common time frames for their mitigation pledges at COP24 in Decision 6/CMA.1.  While the Paris Agreement specifies that NDCs will be revised every five years, the timeframes for mitigation commitments made within them remain nationally determined.  For example, the US INDC pledges a 26-28% reduction by 2025 based on a 2005 baseline, while the EU’s 40% reduction is by 2030 and based on a 1990 baseline.  Consequently the Parties returned to the issue at SB50, where they again did not come up with a recommendation for COP25.   This negotiations will continue at SB51 during the first week of the COP.  What might be the consensus position on this one?  The range of options currently on the table indicates disagreement over what conceptually is the right timeframe to achieve both ambitious and feasible change, and how fast to start implementation.  Hence we see competing proposals to require all Parties to adopt a 5-year timeframe; a 10-year timeframe; have the choice between the two; and even mandate two successive 5-year timeframes (5+5).  As for implementation, there are calls for sooner (in 2025) and later (2031 and 2041 onward). At this point, it is unclear which approach will prevail in Santiago. Parties could not agree on submissions and technical reports on this point during the next six months, so it is hard to see how compromise positions will form before then.

The Article 13 guidelines on transparency get the award for length: Decision 18/CMA.1 comes in at a whopping 34 pages!  We know that knowledge is power.  While sovereign countries always seek information on others, they are careful when divulging their own. Careful wording takes more pages.

Within the internal logic of the UNFCCC, the length is also testimony to how MRV (measuring, reporting, and verification) has evolved over time.  The general requirements outlined in the UNFCCC produced data, but not in a way that helped measure progress.  Hence the Biennial Reports and Biennial Update Reports mandated later by COP16 decisions.  This change led to the Paris Agreement’s Biennial Transparency Report (BTR), which Parties will begin submitting in 2024, and will likely evolve to be the sole report (with national inventories inside or alongside them).

Another reason for length derives from Article 13’s negotiation over the course of 2015 into a two-part reporting system:  one on transparency of action (e.g. mitigation and adaptation) and one on transparency of support (e.g. finance, technology, capacity-building). That second part was hard fought.  Since 1994, developing countries perceived chronic shortfalls on these UNFCCC “means of implementation” commitments.  As a compromise, they negotiated their willingness to take on new mitigation obligations with developed countries’ willingness to be more transparent about how they provide support.

While long and detailed, the transparency guidelines are organized in a straight forward fashion, first giving an overview of BTR requirements in Part I before providing lists of the kinds of information and methodologies required for making a national inventory of emissions and removals in Part II.  Part III details the information needed to report on progress made on NDC pledges, which mostly  mirrors that described in the NDC guidelines. Part IV lists the optional information on adaptation that may be included in a NDC. Parts V and VI address the provision by developed countries and the receipt by developing countries of support, respectively, via finance, technology, and capacity building.  Guidelines on the technical expert review of these submissions are outlined in Part VII and multilateral review of them by the Parties is covered in Part VIII.

While the end product seems tidy and matter-of-fact, the negotiation of them during COP24 occupied most of the available meeting time.  This kind of detailed reporting – most of which most developing countries have not prepared for – was ground zero for advocating for different requirements for countries of different development status.  While LDCs and SIDs continue to be treated with “flexibility,” developing countries are really not. Almost all of the transparency provisions begin with the undifferentiated label of “Parties.” While developing countries may exercise flexibility “in light of their capacities” on some aspects of reporting, they must transparently show where and why they are doing so and communicate when their capacity will improve.  To help them meet these timelines, developed country Parties have pledge additional capacity-building support for transparency, via the CBIT fund located at the GEF, which was created at COP21.   A uniform transparency system was a red line for the US and EU delegations.  To get to not no required giving up an outside limit on how long developing countries could exercise this flexibility – and funding this kind of capacity building.

At SB50, the focus on the transparency framework’s mechanics continued with negotiations on common reporting tables and tabular formats for this information.  The Parties left Bonn with pages of ideas, an invitation to submit more, and a decision to continue negotiating the specifics at SB51 with dedicated time for discussing how exactly to put those flexibility options into practice.

The Article 14 guidelines on the global stocktake (GST) are captured in Decision 19/CMA.1 in a comparatively short 5 pages.  Yet they give a fair amount of detail on both the procedure and data inputs for this collective review of all the Parties progress (or not) on achieving the Article 2 goals, which is set to start in 2023 and continue every five years thereafter. On procedure, the implementation guidelines divide the stocktake into three phases: 1) information collection and preparation, 2) technical assessment of it per the Paris Agreement goals, and 3) using that assessment to inform Parties’ updating of their NDCs to enhance ambition. While the SBI and SBSTA will jointly assist the process, a “technical dialogue” will be convened to help assess both the inputs and outs of the stocktake.  Not surprisingly, inputs will provide information on the current status of emissions and removals, overall NDC progress, adaptation and loss and damage efforts, financial flows, challenges faced by developing countries, good practices, and “fairness considerations.”  Data for these inputs will come from individual NDCs and BTRs; reports from the IPCC, SBI and SBSTA, and relevant constituted UNFCCC bodies; synthesis reports requested of the Secretariat, as well as reports from other UN bodies and regional organizations; and submissions from Parties and observers.  The technical dialogue looks to be an important method for focusing the assessment of evidence-based actions, akin to the structured expert dialogue that set the stage for the inclusion of 1.5C in Article 2’s aims and the COP requesting the IPCC’s special report on 1.5C. Perhaps it will be equally skilled in diplomacy, as the GST turns the focus from individual country actions (and inactions) to global action (and inaction)?

Taken together, these three sets of implementation guidelines provide something for everyone yet enough top down in common to drive compromise.

“The Paris Agreement could have died in Katowice,” Li Shuo, head of Greenpeace-China, said in a Rolling Stone article post COP24. “Instead, it lives. The question now is, ‘Who will step up and show some ambition and political leadership?’ ”

Getting to Not No: Searching for Consensus in the Climate Negotiations

Up close and personal in a Katowice negotiation room.
(Photo: Tracy Bach)

Multilateralism aims to forge agreement among countries to solve problems that span borders. To achieve success, treaty parties must balance the number of participants with the strength of their commitments and their willingness to enforce them.

In tackling climate change, we see this triad playing out differently between the UNFCCC (197 Parties + qualitative, not quantitative commitments + soft enforcement mechanisms), Kyoto Protocol (much smaller group of countries + quantitative mitigation targets + reviewed by a compliance committee), and the Paris Agreement (185 Parties + pledged quantitative and qualitative contributions + enhanced transparency requirements to promote accountability). It’s safe to say that getting a multilateral environmental agreement’s structure right isn’t easy.

Ditto on its governance.

The international climate change agreements housed under the UNFCCC operate their brand of multilateralism by consensus.  While the Conference of Parties (COP) need not achieve unanimity, one country or group of countries can stop action in its tracks by voicing disagreement. Sometimes dissenting views can be managed through diplomatic techniques.  A recent example is the promise of ongoing consultations made by COP21 President Laurent Fabius to Turkey in 2015 in order to gavel the Paris Agreement into being.  Other times they cannot, and the Parties do not come to consensus, as happened in 2009 with COP15’s “Copenhagen Accord.”  Given that the UNFCCC, Kyoto Protocol, and Paris Agreement Parties achieved consensus on their COP24, CMP14, and CMA1 decisions respectively, it is worth exploring how they got to “not no” in Katowice, Poland.

A first consideration is the motivation to keep climate change multilateralism intact.

Despite the United States’ notice to withdraw from the Paris Agreement and the anticipation of something similar from the new president of Brazil, the vast majority of Parties want to continue this treaty forum. The European Union states – notably Germany, France, and the UK (still, despite Brexit) – are making a full court press on putting the Paris Agreement into practice. Why? The EU has invested deeply in these multilateral climate change negotiations since the beginning.  Member countries bore almost the entire load of the Kyoto Protocol mitigation commitments.  While member states continue to tussle internally on when and how to move away from fossil fuels – with COP24 host Poland serving as Exhibit A of a coal-dependent European economy dragging its heels – there is no doubt about the EU’s climate change policy direction since the early 2000s.  Whether via carbon markets or renewable energy targets or electric vehicle production prioritization or financial and capacity-building aid to developing countries, EU member states have made significant political and financial investments in climate change multilateralism.

Likewise emerging economies like China and India have moved to the multilateral forefront by bringing developing country interests and concerns to the climate change negotiation table. Along with Brazil and South Africa, they form the BASIC negotiation group that is critical to forging deals.  As industrializing developing countries, they can see the costs and benefits of mitigation and adaptation commitments from both the economic status they have been and the one that they are growing into. China’s early experiments with regional carbon markets have now manifested nationwide. Its use of renewable energy is growing ahead of its pledged targets.  It is THE largest electric vehicle market in the world, fueled by domestic policies that make it easier for consumers to buy them. India highlights the mitigation impact of its majority Hindu population’s vegetarianism.  It also vies for solar energy bragging rights with China and incentivizes the use of electric vehicles.  By taking domestic mitigation and adaptation actions while also pursuing economic growth, these large developing countries provide leadership for the smaller developing countries who are also industrializing. They also partner with the EU to build multilateral bridges strong enough to withstand unilateral defections.

A second consideration is the structure of the Paris Agreement itself, and the rules needed to implement it that were the key deliverable of COP24.

Unlike the UNFCCC, in which country parties imposed on themselves only process requirements like collecting and reporting emissions data, the Kyoto Protocol set country-specific emissions caps that would add up to a collective 5% reduction from global 1990 emission levels. How countries achieved their reductions was up to national governments, in light of the many options embodied in the Protocol. But because only developed countries took on these reduction targets, the Protocol affected the practices of a minority of UNFCCC Party countries who were the historical polluters. By 2005, when the Kyoto Protocol entered into force, China had surpassed the U.S. as the top emitting country. Exhibit A of the growing impact of the emissions from developing countries as they industrialize. The Paris Agreement was specifically designed to include all UNFCCC countries in a mutual system of national “bottom up” pledges governed by a set of international “top down” accountability rules.

It is this treaty language, replete  with its “constructive ambiguities,” that the Paris Agreement implementation guidelines must clarify.  Hence the past three years of negotiations under the Paris Agreement Work Programme (PAWP) that focused on some seven Agreement articles (4,6,7,9,13,14,15) and culminated in COP24 decisions that total 100 pages.

Of these seven, the COP24 outcomes – sometimes referred to as the Katowice Rulebook – on three of them merit closer scrutiny: Article 4 on NDCs, Article 13 on transparency, and Article 14 on the global stocktake.  The first one focuses on the kinds of mitigation targets countries set for themselves and how to account for their impact.  The second sets the ground rules for regularly reporting on NDC progress. The third holds the entire COP responsible for assessing whether the Paris Agreement parties are achieving the Article 2 goal of keeping the rise in atmospheric temperature to well below 2C degrees.  It is on these three building blocks that current climate change multilateralism is based.  Understanding the details of their implementation guidelines is thus a critical first step to making it work.

Check out my post that captures key guidelines finalized at COP24 and SB50, and how Parties reached consensus on them.

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