What requirements will a proposed 2015 global warming deal place on countries? It’s a question exercising top legal minds
By Ed King
Few experts RTCC has spoken to over the past three months believe there is any doubt that Paris will deliver a climate change pact.
The potential for egg on French face is too high, the memories of the failed 2009 Copenhagen summit too raw, the harsh consequences for hundreds of vulnerable countries too severe.
Instead, the question is will the deal be worth the reams of paper it’s likely to be printed on? And will it boast any teeth?
Negotiations will resume in Bonn next month, with envoys hoping to thin out a huge set of proposals that runs to over 80 pages of small text.
This week a few of those mists have cleared (or have got denser, depending on your view) with the publication of two documents outlining how a legal deal could work.
The first, released on Monday from the ACT 2015 consortium, a group of green and development think tanks, sets out their rationale followed by a 13-page draft text.
The second, published on Tuesday by the DC-based Center for Climate and Energy Solutions, outlines how the US could accept a legally binding conclusion in Paris.
We’ll come to the second paper in a moment. First let’s look at the potential scope of the whole package produced by the ACT 2015 team.
The 32-page document, produced with financial assistance from the European Commission, is based on consultations with diplomats and academics from the US, China, South Africa, Brazil and Europe.
It offers, say the authors, a decent picture on what most countries are looking for in Paris, along with what some may say is a sprinkling of wishful thinking from civil society.
“It’s clearly just ideas for countries to take into consideration but we visited 15 countries and most of the major blocs and tried to listen and capture views,” says the WRI’s Jennifer Morgan, one of the ACT 2015 text’s lead authors.
I’ve pulled out what I think are some of the headlines:
-Governments “shall” commit to carbon cuts up to 2025 [‘shall’ is a tough word in UN parlance, indicating this part would be binding, although it is often replaced with ‘should’]. Once they are accepted under the UN they “shall” be implemented
-CO2 cutting commitments will have to be raised every five years from 2020
-All commitments will be in light of the ‘common but differentiated responsibilities and respective capabilities’, but also take into account ‘different national circumstances’
-Least developed countries and small island states can have “particular flexibility”. Other developing nations need to play ball but can ask for cash/technical support
-Countries will aim to phase out “net” global greenhouse gas emissions as early as possible after 2050, but target an earlier phase-out of “net” carbon dioxide emissions
-The deal emphasises links to the UN’s aviation and shipping authorities as well as the Montreal Protocol, which is tackling the use of fast warming HFC gases.
-The ACT text doesn’t specify numbers or mention the famed $100 billion by 2020 target but it does call for low carbon investments to be scaled up
-It calls for new finance from public/private national/international “in particular for the benefit of developing countries”
-The Green Climate Fund will be the main financial arm of the 2015 deal
-National and international institutions will face “regular assessments of the investment portfolios” to “identify specific risks involved in investments not aligned with the long-term mitigation and adaptation goals”
-The document also calls for the development of a “capacity building mechanism” to help countries deal with mitigation, loss and damage, adaptation, technology transfer, transparency and accountability
-A “mechanism for facilitating and promoting implementation” should be created, which will be independent and offer “recommendations, advice, warnings, cautions”
-The ACT 2015 document stresses that in the absence of real teeth, transparency will be at the heart of a regulatory system for countries
-Baselines and accounting procedures will need to be agreed in advance to ensure progress was comparable country to country
-To ensure everyone play ball, the UN will need governments to report on their emissions trajectory every 2 years and offer a wider report every 4 years
-This will detail technology needs, GHG scenarios, efforts to boost awareness, with national stakeholders, development in technology transfer
-If countries fail to take this seriously, they will face the following:
“Any Party that does not prepare, regularly update, and implement mitigation commitments in accordance with Article 3 (Mitigation) shall not be entitled to exercise its right to vote and shall lose such other rights and privileges as may be determined by the Meeting of the Parties.”
A huge question this ACT 2015 does not properly consider (possibly because it is still be worked out in Foggy Bottom) is whether the US would accept the legal wording above.
Specifically, as the text above indicates, would the White House want to commit to a scenario that would bind it to its nationally determined target of 26-28% carbon cuts by 2025?
A political agreement such as the 2009 Copenhagen Accord did not need sign-off from two-thirds of the Senate, which is standard for any new treaties the country is considering.
- First, submit the agreement to the Senate for advice and consent to ratification, as an Article II treaty;
- Second, seek congressional approval of the agreement as an ex post congressional-executive agreement. This would require both houses of Congress to enact a law approving the agreement.
- Third, accept the agreement without seeking Senate or congressional approval, based on the president’s existing statutory, treaty, or constitutional authority.
The first option is legally uncontroversial says Bodansky but unlikely, as the Senate has a poor history of consenting to new UN deals, take its rejection of the law of the sea or UN biodiversity convention.
The second option is also possible under the US constitution but would face the same political hurdles as the first. So it is too improbable.
The third – which Bodansky seems to indicate could be the most likely – would drive Congress lawmakers mad but has precedents, notably the 1991 Air Quality Agreement with Canada.
Critically, the White House would need to demonstrate that a legal pact would complement rather than replace existing law.
Bodansky says the Clean Air Act, used by the EPA to regulare domestic carbon dioxide emissions, is just that.
“Since the threat posed by carbon dioxide emissions requires international action, the president could argue that the authority to negotiate an international agreement is a necessary adjunct to the regulation of domestic emissions,” he writes.
Provided the Paris deal did not offer the UN climate convention new powers, it would “arguably be within the scope of the Senate’s original advice and consent to the convention,” he adds.
What seems clear from Bodansky’s analysis is that US options to increase its CO2 pledge beyond the 26-28% by 2025 are limited.
“If the emissions target in the United States’ NDC [nationally determined contribution] goes beyond the reductions that could be achieved under existing law, the Paris agreement would require implementing legislation, even if it were adopted as an Article II treaty,” he says.
He also observes that despite the president’s own carbon cutting commitments, the US does not have an emissions cap in domestic law.
“Committing to a target internationally without Senate or congressional approval would go beyond past practice.”
In his view, the US ability to go along with Paris depends on how much it “reflects and complements” existing laws, allowing the president to argue nothing has changed.
Legally binding emission or finance targets would fundamentally change that picture; and if the US backs away from these levels of commitments, you can bet China will follow.
As a top EU negotiator told RTCC recently, the Paris talks “will be a case of nothing is agreed till everything is agreed,” and it’s just possible the final hours will focus on the use of modal verbs in the final deal.
Shall we dance, or should we?