NEWSFLASH: COP26 postponed due to COVID-19

While thinking and writing more broadly about the pandemic and its implications for climate change, I pause to share this news just announced by the COP26 presidency. The UK says that COP26 will be delayed until sometime in 2021, still taking place in Glasgow, Scotland and with the pre-COP still being held in Milan, Italy. The mid-year “intersessional” meeting, called SB52, scheduled for Bonn in early June, has been tentatively rescheduled for October 4-13, 2020.

UN Climate Change Executive Secretary Patricia Espinosa said:

COVID-19 is the most urgent threat facing humanity today, but we cannot forget that climate change is the biggest threat facing humanity over the long term. Soon, economies will restart. This is a chance for nations to recover better, to include the most vulnerable in those plans, and a chance to shape the 21st century economy in ways that are clean, green, healthy, just, safe and more resilient.

The Guardian reports that COP26 President elect, Alok Sharma, “held crunch talks” with the key COP players, including the COP Bureau, the UNFCCC Secretariat, and UK and Italy representatives. While all recognize the extraordinary conditions of the pandemic, many climate change leaders opposed rescheduling, especially this far in advance.

Nicholas Stern had urged Boris Johnson to keep the negotiations on track. “At the moment we must just get on with the preparation. This is such an urgent challenge and there is so much to do, and so much valuable work that is being done, that we can’t afford to lose the momentum.” Yvo de Boer, COP15 president, agreed, observing that “if it is going to be cancelled, that should only be done at the last possible minute – in October.” Christiana Figueres, former UNFCCC Executive Secretary, had lobbied for keeping COP26 on track, given the need to peak emissions this year to stay within the 1.5C goal and to maintain pressure on member countries to “ramp up their targets in line with the steep emissions decline we need to see in this decisive next decade.”

But several climate change insiders see a silver lining. Some had observed the late start of the UK presidency – long before the pandemic – on the diplomatic push needed to succeed at COP26. Others pointed to the cancellation or shifting on-line of COP sub-body meetings in March and April and its knock-on effect of slowing down technical work. Giving the UK and Italy time to cope with COVID-19 and reset diplomatic and logistical preparations into 2021 could only help. (Of note: the COP26 venue, the Scottish Events Campus, is currently set up to serve as a temporary hospital for pandemic patients.)

Several point specifically to opportunities coming down the pike between now and a 2021 COP26. John Sauven of Greenpeace UK underscores the potential for government stimulus packages enacted between now and COP26 to “advance progress on tackling the climate emergency.” Many unnamed activists see the potential for a new US president elected on November 3, 2020 to bring the US back into the Paris Agreement. New scientific data will also be available in early 2021. Working Group I’s contribution to the IPCC’s new assessment report, AR6, is due to be published in April 2021.

The power in, and of, NDCs

The Paris Agreement is built on Nationally Determined Contributions or NDCs. In them, country parties pledge what they will do within their borders to help keep global temperature rise “well below” 2C. Most developed country NDCs are based on economy-wide mitigation targets, like the EU’s 40% reduction in GHG emissions by 2030 from a 1990 baseline. Most developing countries seek mitigation through sectoral pledges, like conserving additional forest acreage and increasing the share of renewable energy (RE) used to make electricity. The World Resources Institute (WRI)’s recent webinar, Enhancing NDCs in 2020: Opportunities in the Power Sector, spotlighted opportunities for revising NDC energy sector targets. Importantly, it emphasized moving beyond simply increasing RE targets to swiftly decrease emissions during the next decade.

Globally, the energy sector still produces the majority of GHG emissions, even though some countries have moved almost completely off fossil fuels. UNEP underscores, in its 2019 annual gap report, that this sector has the highest potential for making big impact reductions by 2030. It outlines five energy transition options, including expanding RE for electrification and phasing out coal, decarbonizing transport (via electric mobility) and energy-intensive industries (like steel and iron production), and avoiding future emissions while improving energy access.

This webinar’s experts — from the International Energy Agency (IEA), National Renewable Energy Laboratory (NREL) of the US Department of Energy, and, of course, WRI — emphasized the importance of NDCs addressing grid flexibility, existing coal assets, “institutional changes,” and synergies between power generators and end users. They gave specific examples of how countries can revise in 2020 to connect these energy sector strategies with specific NDC targets, like:

  • increasing energy storage and smart meter deployment by specific amounts;
  • referencing strategies for addressing stranded coal assets;
  • restructuring power institutions and markets; and
  • doing cross sectoral planning, e.g. between electricity production, efficiency, and end users.

WRI has recently issued this working paper that captures recommendations for specific NDC enhancements for the power sector (as well as for transport, agriculture, and forestry.)

IEA, which produces the World Energy Outlook each year to help policymakers make informed national policies over a 20-year horizon, points out that RE represents the vast majority in new construction.

But legacy coal-fired plants, predominantly in SE Asia, are relatively young (average age of 14 years old) and contribute to 1/3 of global GHG emissions.

According to IEA, getting to net zero by 2050, will require tackling these legacy coal-fired plants byretrofitting the with CCS, transitioning their production use, and retirements.

NREL gave specific examples of its capacity building work in Mexico (long range planning, RE integration, aggregating large industrial demand) and in Vietnam (data sets, grid modeling, private sector investment, bulk power purchase plans, and apparel manufacturers to aggregate demand for retrofits of major industrial parks with RE and EE). Through this work, NREL is building regional and professional networks for sharing best practices.

The Grid RE Community of Practice (CoP) targets knowledge sharing and technical assistance in Asia and Africa.

The New Global Power System Transformation consortium brings together power system operators from around the world, because they are the ones implementing these changes, especially integrating large amount of RE into their grids.

Tort law in US climate litigation

Webinars can provide a high impact/low carbon footprint way of learning. The current pandemic makes them all the more useful. I will regularly feature a few that I attend, highlighting organizers who pack the most learning per hour for me.

This week the Center for Progressive Reform spotlighted US state tort law’s role in holding the fossil fuel industry accountable for climate change harms. Panelists included Noah Oppenheim of the Pacific Coast Federation of Fishermen’s Associations, Karen Sokol of Loyola University New Orleans College of Law, and Alexandra Klass of the University of Minnesota Law School (my alma mater: Go Golden Gophers). Collectively they describe how this kind of climate change litigation uses run-of-the-mill tort law to hold people responsible for behavior that breaches social norms and harms others. In this way, it can be seen as but one kind of climate change policy tool, along with legislated carbon taxes, tax departments’ renewable energy credit incentives, and international cooperation.

Noah highlighted the latest research on climate change impacts on fisheries and how it both compels and supports the lawsuit brought by members of the Pacific fishing industry. Karen described recent developments in state climate tort actions more broadly and put them in the context of other domestic and international climate litigation. Noting the current prevalence of coastal US lawsuits, Alexandra analyzed the potential for climate lawsuits in midwestern states. You can watch the webinar here.

A few of my takeaways:

  • As recounted by Noah, the logic of Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp follows the traditional 4-part path of a negligence suit: a defendant (actually a boat load of large petroleum companies – bad pun intended) alleged to have breached a duty of care (knowingly creating products that produced GHGs and led to ocean warming) to commercial fishers who have experienced financial harm (closing of Dungeness crab fisheries) caused by this breach (warm oceans produce a toxin that ends up in crab tissues that keep people from eating them and fishers not being able to catch and sell them).
    • Interestingly, the case’s five causes of action extend beyond a general claim of negligence to strict liability for failure to warn and for design defect, negligent failure to warn, and nuisance. 
    • In addition to compensatory damages (the most typical relief sought in tort suits), the Federation seeks equitable relief like abatement of the nuisance (meaning GHG mitigation), and punitive damages and disgorgement of profits.
    • The case was filed in California state court in 2018, but defendants are seeking removal to federal court. These preliminary motions are pending.
  • Karen pointed out that all other state torts suits in the US have been brought by state and local governments. They too allege beyond negligence to strict liability forms and nuisance, and point to specific climate change harms that can be monetized.
    • Plaintiffs include counties (San Mateo, CA; Boulder, CO; King, WA; and Santa Cruz, CA), cities (Baltimore, NYC, Oakland), and states (Rhode Island, Hawaii).
    • The Baltimore case made headlines on March 6 when the Fourth Circuit Court of Appeals ruled unanimously that it belongs in state, not federal court. The decision permits the state tort actions to go forward to trial, most importantly to discovery. While not binding on the other federal circuits with removal motions pending, it is anticipated to be influential.
    • Per the Baltimore City Solicitor: “We look forward to having a jury hear the facts about the fossil fuel companies’ decades-long campaign of deception and their attempt to make Baltimore’s residents, workers, and businesses pay for all the climate damage they’ve knowingly caused.”
  • Alexandra opined that the nature of climate change impacts and local politics may have delayed midwestern state and local governments from bringing state tort actions.
    • The damages are different than in coastal areas, e.g. arising from river flooding, affecting wastewater treatment, agriculture, as well as real and personal property.
    • Although the midwest is viewed as more conservative politically, midwestern attorneys general have signed on to climate change suits as amici.
    • Minnesota has a very strong consumer protection laws and brought its own tobacco suit in the 1990s, going to trial and settling during jury deliberation for $6.6 billion.
    • Parallels for these climate change tort actions can be drawn from the tobacco litigation based on public nuisance, and the recent opioid cases brought in Ohio and Oklahoma.

All three expect more cases to be filed in state courts, as decisions on procedural questions like removal are decided in this first wave. While most plaintiffs will be cities and counties due to their more like-minded views on climate change, Virginia was predicted as the next state plaintiff. Several referred to CPR’s State Courts and the Fight for Equity and Grantham’s 2019 snapshot of Global Trends in Climate Change Litigation.

Either explicitly or implicitly, all three speakers relied on two key databases for tracking climate change litigation in the US and globally. I do to too and encourage you to explore them.

  1. the “climate case chart,” originally created by Arnold & Porter and now jointly maintained with the Sabin Center for Climate Change Law at Columbia University (the common denominator being Michael Gerrard)
  2. the “climate change laws of the world,” published by the Grantham Research Institute on Climate Change and the Environment originally in partnership with GLOBE (the common denominator being Sir Nicholas Stern).

Survey says? Add your voice on how to shape a “2020s Green Breakthrough”

Dual Citizen, a consulting firm based in the US, invites you to take this short survey polling specific ways governments, investors, businesses, and individuals can reduce GHG emissions quickly in the next decade. I found the questions thought provoking because the provided answers were quirky at times, at various levels of altitude – and since you can only choose one, forced me to prioritize for the short term. (The survey designers also offer an Other ______, where you can go more free form.) Dual Citizen publishes an annual GGEI or Global Green Economy Index that seeks to measure both performance and perception of countries’ “green economies.” This Green Breakthrough survey will be reported separately.

Give it a go. Soon. This survey closes on April 1. No fooling.

Putting Climate Change (and COP26) in Context

Our friends at IISD – those indefatigable PhDs who sleep little and write lots at MEA meetings around the world – have produced a report that captures their take on where global environment governance is at the start of 2020. Just as the ENBs produced by these deeply informed chroniclers diplomatically yet accurately recount the daily essence of a given COP, The State of Global Environmental Governance 2019 provides a balanced view of the highs and lows of last year’s developments across the full panoply of multilateral environmental governance.

A common starting point for both: “In 2019 scientists were truth-tellers.” The report notes how many scientific reports were produced in 2019, providing data on which policymakers could act. The handful highlighted by IISD:

“Scientific bodies successfully produced a series of reports, each drawing stark conclusions for the fate of the planet. For many, this led to the question of whether the multilateral system is able to mount an effective response.”

With that jumping off point, the glass half full moments include:

On the half empty side, the report starts with another general premise:

“2019 unfolded amid rising nationalism and weakening multilateralism,” citing Japan’s departure from the International Whaling Commission, US withdrawal from the Paris Agreement, and the UNEA’s inability to agree just to discuss the need for global governance of emerging technologies for CO2 removal and solar geoengineering.

With that starting point, the empty glass is unsurprisingly brimming with global environmental governance “misses” for 2019, including:

“Observers across processes increasingly note a lack of good faith in negotiations. A few countries seem increasingly willing to block progress, leading some to worry that progress might only be achievable in the context of ‘coalitions of the willing’ or ‘club diplomacy’ rather than in more inclusive forums such as UNEA and MEAs.”

One hopeful sign in the evolution of governance of global environmental problems is increasing understanding of the linkages between specific treaties.

“While 2019 showed just how difficult it can be to manage issues across agreements, many view focusing on interlinkages across issue areas as a way to raise the ambition of the system as a whole.”

This report highlights six linkages with potential to make global environmental governance more effective:

  • the Global Pact for the Environment, introduced by the French government just after adoption of the Paris Agreement, is intended to address gaps in existing global environmental governance by establishing formal linkages between MEAs through a legally binding third international covenant that codifies the principles expressed in the Rio Declaration. The report applauds focused discussion on “the need to promote policy coherence across environmental instruments, enhance collaboration and cooperation among governing bodies and secretariats of MEAs, and strengthen system-wide inter-agency cooperation on the environment.” It also points out that a legally binding outcome is no longer on the negotiation table.
  • the linkages between the ocean and climate change noted in the first “Blue Paper” produced by the High-Level Panel for a Sustainable Ocean Economy, including oceanic renewable energy, emissions from shipping, climate change impacts on coastal and marine ecosystems and fisheries, and carbon sequestration in the seabed. While Chile took this up when framing COP25 as a “Blue COP,” the outcome was tepid (a 2020 dialogue in the COP decision, not the start of a focused work programme that was sought).
  • the BBNJ is intended to comprehensively protect marine life by tending to the gaps and overlaps in governance contained in the Convention on the Law of the Sea and the International Seabed Authority, the Convention on Biological Diversity, regional fisheries management organizations, the Food and Agriculture Organization, and the International Maritime Organization. But negotiations thus far have shown a lack of consensus on whether the BBNJ should be a higher level governance tool or one that complements the current array.
  • while the climate and biodiversity conventions both emerged from Rio in 1992, they have done their work on distinct tracks since then. The IPCC’s SRCCL underscored the need for more coherent policy making between the two. The IPBES agreed and formally requested in 2019 joint research projects with the IPCC, but the IPCC, citing workload, demurred.
  • discussion about linking trade and the environment has increased post-Paris Agreement, as have those about climate change and human rights.
  • the Sustainable Development Goals (SDGs), at five years old, are seen as “bringing environmental aspirations together with the social and economic aspects of development” and, in 2019, “a rallying point for emerging global issues.” While all but SDG 8 (decent work and economic growth) are not on track to make their 2030 targets, the SDGs overall are seen as a “useful framework to reveal the linkages among environmental, social, and economic sustainability. Such awareness reveals the need to address MEA targets in a way that also consider economic and social realities.”

“It’s perhaps predictable that science would identify the interconnections of the natural world while political responses would struggle to keep pace. As the past year showed, drawing the (scientific) connections was not entirely sufficient for political progress. However, recognition of these connections, as well as progress to address them, constitutes at least small steps toward improving the system as a whole.”

2020 is expected to be a big year for global environmental governance. Not only will the SDGs mark their fifth anniversary having fully reviewed actions taken on all 17, but the UN will kick off the Decade of Action for SDG implementation. The Paris Agreement on climate change officially begins operation, with revised NDCs showing increased ambition due in. And the post 2020 biodiversity framework under the CBD should be completed. This IISD report helps us step back from our individual MEA silos to see the big and sobering landscape of 2019 hits and misses, to see what can be achieved in this year and the decade to come.

Climate litigation updates: Oh Canada!

Closer to my Green Mountain home, three appellate courts in Canada have now ruled on the constitutionality of the country’s Greenhouse Gas (GHG) Pollution Pricing Act. The Courts of Appeal for Ontario and Saskatchewan have held it constitutional while the Court of Appeal for Alberta has held the opposite. The Canadian Supreme Court will hear argument on this split at the end of March.

While the three decisions together reference the Paris Agreement almost 90 times, they do not significantly rely on it when determining whether Parliament’s legislative act violates Canada’s constitutional separation of powers between federal and provincial governments.

All three cases, brought by a combination of provincial and subregional governments, First Nations, and NGOs, rest on a similar view of the Act’s legislative history that references the importance of the Paris Agreement. As the Ontario appellate court writes, “Canada’s commitments under the Paris Agreement were part of the impetus for the Act.” The historical timeline for the Act’s genesis generally goes like this:

  • Canada adopted the Paris Agreement in 2015 and made its NDC pledge to reduce GHG emissions by 30% below 2005 by 2030.
  • The Vancouver Declaration on Clean Growth and Climate Change expressed this international engagement, and connected the need to mitigate climate change with implementing GHG mitigation policies domestically to achieve the 30% target.
  • This declaration then led to the formation of a Federal-Provincial-Territorial Working Group on Carbon Pricing Mechanisms, which produced a report concluding that economy-wide carbon pricing is the most efficient way to reduce emissions.
  • This report in turn supported creation of the Pan-Canadian Approach to Pricing Carbon Pollution, which set a national benchmark for carbon pricing aimed at “ensur[ing] that carbon pricing mechanisms of gradually increasing stringency apply in all Canadian jurisdictions by 2018, either in the form of an explicit price-based system (i.e. a carbon tax) or a “cap-and-trade” system.”
  • In December 2016, eight provinces and the three territories adopted the Pan-Canadian Framework on Clean Growth and Climate Change, which explicitly included the benchmark.
    • British Columbia, Alberta, and Québec already had carbon pricing mechanisms.
    • Ontario intended to join the Québec/California cap-and-trade system.
    • Manitoba adopted it in February 2018.
    • Saskatchewan did not adopt it.
  • In March 2018, the Act was introduced in Parliament as part of the Budget Implementation Act, 2018, No. 1 It received Royal Assent three months later.

The Courts of Appeal for Ontario and Saskatchewan ruled the Act constitutional in 2019, grounding their conclusion on Parliament’s jurisdiction to legislate on matters of “national concern” under the “Peace, Order, and good Government” (“POGG”) clause of s. 91 of the Constitution Act, 1867. Why? Because Parliament had established that atmospheric accumulation of GHGs “poses an existential threat to human civilization and the global ecosystem” and the impact on Canada is “particularly acute.” The need for a collective approach to this threat presents “a matter of national concern, and the risk of non-participation by one or more provinces, permits Canada to adopt minimum national standards to reduce GHG emissions.” The charges imposed by the Act are also constitutional because they are “regulatory in nature and connected to the purposes of the Act. They are not taxes.” The Alberta court of appeal roundly refuted this constitutional analysis in its February 2020 decision. Each of these courts analyzed the “pith and substance” of the Act to determine how it fits within the Constitution’s definitions of federal power.

The Court of Appeal for Ontario concluded that:

“The purpose of the Act, as reflected in its Preamble and in Canada’s international commitments and domestic initiatives, discussed earlier, is to reduce GHG emissions on a nation-wide basis. It does so by establishing national minimum prices for GHG emissions, through both the fuel charge and the OBPS excess emissions charge. Its effect is to put a price on carbon pollution, thereby limiting access to a scarce resource: the atmosphere’s capacity to absorb GHGs. The pricing mechanisms also incentivize behavioural changes.”

“A harmonious reading of the Act, which itself confines its operation to the creation of a national minimum pricing scheme to address a national and international concern, permits it to operate concurrently with provincial laws applicable to the environment in general, and to the reduction of GHG emissions in particular.”

In sum: The Act establishes “minimum national standards to reduce greenhouse gas emissions” and uses “a minimum national standard of stringency for the pricing of GHG emissions.”

The Court of Appeal for Saskatchewan drew the same conclusion on the same constitutional grounds, but grounded the national act more specifically in Canada’s international treaty obligations.

“In very general terms, the Act is self-evidently aimed at GHG pricing. This is revealed by several considerations. The first is the broad context in which it was enacted. That context can be traced directly back to the Framework Convention ratified by Canada in 1992 and the Kyoto Protocol, the Copenhagen Accord and the Paris Agreement, which followed. All had the same central objective, i.e., the limitation of global GHG emissions. The Act is the product of Canada’s efforts to meet its commitments under the Paris Agreement.”

The Court of Appeal for Alberta did not find any constitutional basis for the federal act, noting how rarely Parliament’s peace, order and good government power has been used. (Only 6 uses of it, with 3 during the temperance period!). This February 2020 ruling recognized the urgency expressed in the international climate regime, and carefully analyzed the legal architecture and impact of the Paris Agreement. But it viewed the federal Act as a “constitutional Trojan horse.”

“Assigning this Act or a class of laws of this nature to Parliament would forever alter the constitutional balance that exists between the heads of power allotted to Parliament and the provincial Legislatures in the federal Canadian state. None of the cases in which the national concern doctrine has been successfully invoked contemplates a wholesale takeover of a collection of clear provincial jurisdictions and rights. But this Act does. There is no principled basis to judicially expand the heads of federal powers to concentrate such extensive law-making powers in Parliament. We take no issue with the federal government’s virtuous motives for the Act; we are assessing only its constitutionality under division of powers. … Buried within it are wide ranging discretionary powers the federal government has reserved unto itself. Their final shape, substance and outer limits have not yet been revealed. But that in no way diminishes the true substance of what this Act would effectively accomplish were its validity upheld. Almost every aspect of the provinces’ development and management of their natural resources, all provincial industries and every action of citizens in a province would be subject to federal regulation to reduce GHG emissions.”

Noting Alberta’s contribution to Canada’s GHG emissions (1/3 of Canada’s total, with tar sands emissions accounting for 1/4 of Alberta’s GHG ouput), the court of appeal opined in dicta that Parliament action – “this assault on provincial jurisdiction” – “could only be justified if Parliament validly claimed an environmental emergency that threatened life as we know it on planet earth and required an immediate and comprehensive response to dangerously high levels of greenhouse gas emissions.”

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.”


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?’ ”

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