Ed Barton, LLM, CPA, CFA

Climate Change Law

1992 United Nations Framework Convention on Climate Change (UNFCCC)

The 1992 Convention on Climate Change was a framework convention providing guidelines for the implementation of agreed obligations. The Convention classifies nations into three groups – Annex 1 (OECD and countries in transition to OECD), Annex 2 – (OECD only), and non-Annex 1 – (developing nations).

The convention’s goal was the stabilization of greenhouse gas (GHG) concentrations in the atmosphere at a level to prevent human interference with the climate. The convention imposes a non-specific limit and does not call for reductions.

The convention requires Annex 1 parties to provide financial resources for mitigation, adaptation, and development for non Annex 1 nations. Annex 2 countries must provide new and additional financial resources to assist countries particularly vulnerable to climate change.  Annex 2 countries are also required to facilitate the transfer of technology and know-how to developing nations to assist them in implementing provisions of the convention.

Obligations of Parties to the UNFCCC

Several common responsibilities are falling on all parties to the convention, including:

  • Adoption of national and regional programs to mitigate climate change
  • Promote and cooperate in the implementation of various measures and diffusion of technologies for clean energy, conservation, and enhancement of carbon sinks, scientific and technical research
  • Set up and maintain annual GHG inventories

The Conference of the Parties (COP) of the UNFCCC meets annually and has the lawmaking ability to adopt necessary measures, including resolutions and recommendations.  Experts provide scientific and technical advice under the convention. The Subsidiary Body for Scientific and Technical Advice (SBSTA) was established to provide the COP with information and advice on scientific and technical matters. The Subsidiary Body for Implementation (SBI) assists the COP in assessing and reviewing the effective implementation of the convention.

The convention established a permanent secretariat in Bonn to assist parties with implementation and supporting information.

Over time, the convention has adjusted some of its goals – to include a provision to allow ecosystems to adapt naturally to climate change. It also provides for parties to take precautionary measures to anticipate the causes of climate change and mitigate the adverse effects where there are threats of irreversible damage. The convention also calls for developed countries to bear the bulk of the responsibility for implementing the convention because of their historical responsibility for emissions and the contribution to GHG concentrations in the atmosphere.

1997 Kyoto Protocol

The Kyoto Protocol focused the Annex 1 UNFCCC parties on quantification of emission reduction targets and establishing a timetable for achieving those targets. Adopted in December 1997, the Kyoto Protocol:

  • fixed national emissions quotas for 2008-2012 for each Annex 1 party, as well as the EU as a whole
  • Annex 1 countries could not exceed the assigned amount of emissions during the first commitment period

Mitigation levels set at Kyoto included reducing GHG emissions by Annex 1 countries by 5.2% below 1990 levels by 2012.  The GHG emissions covered by the Kyoto protocol include:

  • Carbon Dioxide (CO2)
  • Methane (CH4)
  • Nitrous Oxide (N2O)
  • Hydroflourocarbons (HFCs)
  • Sulfur Hexafluoride (SF6)
  • Perfluorocarbons (PFCs)

The Kyoto Protocol also lists policies and measures that parties may implement to achieve the emissions goals, including:

  • Emissions Trading – creates a mechanism for trading emissions credits between Annex 1 countries.
  • Joint Implementation – allows the transfer of credits from one Annex 1 country to another Annex 1 country.
  • Clean Development Mechanism (CDM) – Allows an Annex 1 country to gain credits by implementing an emissions reduction project in a developing country.
  • Inclusion of carbon sinks as viable projects
Financial Mechanisms

The 2001 Marrakesh Accords established three funding mechanisms for developing states – two under the Climate Change Convention and one under the Kyoto Protocol:

  • Special Climate Change Fund – complementary to the GEF focusing on adaptation and technology transfer
  • Least Developed Countries Fund – finances LDC’s to prepare their National Plan of Action as required under the Kyoto Protocol
  • Kyoto Adaptation Fund – Provides financial assistance to those developing countries that are vulnerable to the adverse effects of climate change

Post-Kyoto

2007 Bali Convention

The 2007 Bali Road Map was a two-year negotiation to develop a post-Kyoto Agreement following the end of the first commitment period. The road map calls for the mitigation aiming at a maximum of two degrees Celsius from pre-industrial times. Developing countries had not been willing to accept mitigation targets that would curb their economic development, however. Bali marked the first time developing countries agreed to discuss measurable, verifiable, and reportable actions to mitigate climate change.

Post-Kyoto Legal Framework

There was a two-track approach used for the negotiation of a post-Kyoto agreement:

  1. Establishment of an Ad Hoc Working Group on Further Commitments for Annex 1 Countries (AWG-KP) to focus on amending Annex B of the Kyoto Protocol and introducing increased emissions reduction standards for Annex 1 parties.
  2. An Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention (AWG-LCA) – includes both developed and developing countries. The agreement negotiated under this process aims to provide a basis for long-term interstate cooperation on climate change issues – including mitigation, adaptation, technology transfer, and technology building. Developing countries under this process will participate in mitigation commitments or actions as agreed under Bali
2009 Copenhagen Accord

The 2009 Copenhagen Accord is extremely controversial and has limited legal effect. It combined AWG-KP and the AWG-LCA to set a precedent for merging the two AWGs.  The Copenhagen Accord sets nonbinding bottom-up targets in the form of national pledges submitted by each government to the UNFCCC secretariat. The Accord reinforced the commitment of Annex 1 countries to provide adequate, predictable, and sustainable financial resources, technology, and capacity building to support non Annex 1 parties. Annex 1 parties commit to providing $30 Billion over 2010-12 to support mitigation and adaptation activities in developing countries. Annex 1 parties further committed to $100 billion by 2020. The Accord also established a Technology Mechanism to accelerate technology development and transfer.

The Copenhagen Accord took special note of the role of deforestation in climate change. Copenhagen reinforced the role of the United Nations Collaborative Program on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD)

The Copenhagen Accord is considered controversial because it contained no enforcement mechanism and was not adopted as a legally binding agreement. The Accord calls for developing countries to take mitigation action but does not set any targets. The Accord did not establish how the funding commitments were going to be made by the Annex 1 countries. The legal status of the Accord is an “opt-in” agreement and has little enforceability.

2010 Cancun Conference

The 2010 Cancun Conference established a fund to meet the $100 billion commitment for funding with the Green Climate Fund. Additionally, the Parties established an Adaptation Committee to promote the implementation of enhanced action on adaptation. A mechanism was established to enhance UN-REDD and governments stated that cuts needed to be in line with science to keep global temperature changes below two degrees.

2011 Durban Agreement

The 2011 UN Climate Conference in Durban resulted in the Durban Platform for Enhanced Action. This marked the first time that all countries agreed to limit or reduce their carbon emissions. The EU nations and other developed countries agreed to a second commitment period under Kyoto. However, the required funding mechanisms under Durban were not finalized, which resulted in challenges in the implementation of the Enhanced Action Platform and with UN-REDD. The agreement was reached on projects that qualify for CDM but disagreed on new JI mechanisms.’

Subsequent Developments

After Durban saw Canada withdraw from the Kyoto Protocols and Russia, Ukraine, Belarus, Kazakhstan, Japan, New Zealand not taking new targets for a second commitment period, the 2013 Warsaw Convention focused on deforestation, as did the 2014 New York Meeting where they issued the New York Declaration on Forests.

2015 Paris Accords

The 2015 Paris Accords acknowledged that prior GHG emissions targets had failed to be met and that $100 billion would need to be raised annually to adapt to climate change and reduce GHG emissions. The accords integrate poverty alleviation and sustainable development while targeting a 1.5 degree Celsius increase in temperature above pre-industrial levels. It also required all parties to undertake and communicate ambitious efforts in achieving this goal.

Each of the Parties must set and communicate their GHG emission goals, reflecting their “highest possible ambition” in light of their development level and national circumstances. Developed country parties will undertake the lead in reductions and will support developing country parties in their implementation. Parties must communicate with transparency their efforts and results.

The United States notified the group that they would withdraw from the Paris Accords effective 2020.

Shipping and Aviation

Shipping and aviation have always sat outside the scope of the Kyoto Protocols. Aviation is covered by the International Civil Aviation Organization and shipping by the International Maritime Organization. Developing nations have deferral on implementation of the goals set by these agencies. Airlines must stabilize emissions at 2020 levels, monitor emissions on all international routes, and offset emissions from routes included by purchasing eligible emission units.

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