Ecology Law Currents

CONDUIT FOR PEACE IN THE MIDDLE EAST: AN ANALYSIS OF THE RED SEA–DEAD SEA WATER CONVEYANCE PROJECT

By

Sarah L. Fine

This post is part of the Environmental Law Review Syndicate (ELRS).

 

As the old saying goes, whiskey is for drinking—water is for fighting over.

I. Introduction

The mythic Dead Sea—the highly salinated, low-altitude lake of international interest and importance—is drying up.[1] Although the Jordan Rift Valley, where the Dead Sea is located, is known for frequent droughts, the decline of the Dead Sea is primarily due to human intervention—namely, the diversion of the Jordan River, the main lake source which feeds the Dead Sea,[2] to provide potable water to increasing populations.[3] A water level drop of one meter per year has led the surface area to decrease from 960 km² to 620 km² in the last fifty years.[4] Today, the rate of decline is only increasing, giving rise to “extensive environmental degradation and damage to industry and infrastructure and . . . substantial intangible impacts and costs,” with an estimated direct cost to government and industry to be “some $2.9 billion over the next 60 years.”[5]

Despite the lack of stability between the Dead Sea’s three bordering entities—the State of Israel, the Hashemite Kingdom of Jordan, and the Palestinian Authority—a series of agreements between the groups have sought to address the problem of the disappearing Dead Sea alongside the problem of access to potable water.[6] Facilitated by the World Bank Group, the Red Sea­–Dead Sea Water Conveyance Study investigated the feasibility of reversing the environmental degradation of the Dead Sea by transferring seawater from the Red Sea. By introducing desalination into the transfer process, the hope of the three parties is that the Red Sea­–Dead Sea Water Conveyance will address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties.[7]

Constitutions and the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement

Kyle Burns*

Kyle Burns is a 3L at the University of Virginia School of Law. This post is part of the Environmental Law Review Syndicate (ELRS).

 

Introduction

Every nation around the world faces ecological hardships. Almost every nation has responded with a legal regime that attempts to ensure environmental protection. These environmental law schemes come in various forms. Some nations place environmental protection at the highest level, securing it within a national constitution, while others relegate it to the statutory level. Some nations have positive rights, placing a duty on the government to protect the environment, while others create negative rights, preventing discharges of pollution into the air and water. What becomes clear upon analyzing different regimes is that neither the source of the right (i.e. constitutional or statutory) nor the form of the right (i.e. positive or negative) is the dispositive factor determining how protective a nation’s environmental law regime is. I submit that it is the manner in which those rights are enforced that controls the end result. Thus, even the loftiest promise of environmental quality can go unrealized in the face of substandard enforcement or outright non-justiciability, while seemingly less important statutory restrictions on pollution may achieve greater benefits.

My conclusion is supported in three parts. Part I briefly describes environmental law in the United States, providing a backdrop for the remainder of the analysis. Part II describes major features of environmental law in six nations around the world, chosen as illustrative case studies of nations with environmental provisions in their constitutions. Part II makes a point to touch upon judicial interpretation and enforcement in those nations. Finally, Part III further discusses enforcement (or lack thereof) in environmental law, returning to the United States and directly comparing the American experience to those of other nations.

Adapting the Paris Agreement

Bonnie Smith

Bonnie Smith is the Staff Editor at the Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate.

Introduction

For the first time in the history of international climate negotiations, adaptation has its own article in a legal text. Even more striking is that loss and damage, historically treated as a component of adaptation, does too. For many years, negotiations concerning adaptation and loss and damage have been contentious between developed countries, which prioritize mitigation over adaptation and loss and damage, and developing countries uniquely vulnerable to the impacts of climate change. Chronicling the controversial discussions and negotiations leading up to these monumental Paris Agreement articles reveals still-existing tensions between Parties to the Agreement. It also sheds light on negotiable points for future Conferences of the Parties (“COPs”).

Adaptation, mitigation, and loss and damage are three interconnected concepts pertaining to climate change. Defined simply, “adaptation” is the “adjustment of behaviour to limit harm, or exploit beneficial opportunities, arising from actual or expected climate change.”[1] In contrast, “mitigation” seeks to limit climate change, primarily by reducing greenhouse gas emissions.[2]  “Loss and damage” encompasses the costs associated with climate impacts that adaptation and mitigation cannot prevent.[3]  

This article will begin comparing the historical treatment of adaptation and loss and damage with mitigation in the context of international climate change negotiations. Then, the article will analyze the Paris Agreement’s treatment of adaptation and loss and damage.

I. The Fight for Parity

Prior to the Paris Agreement, the governing international climate agreements prioritized mitigation over adaptation and loss and damage. Adaptation was only a minor component of the United Nations Framework Convention on Climate Change (“UNFCCC”), which in Article 2 identified the Convention’s primary objective as “stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous interference with the climate system.”[4] Although the UNFCCC’s priority was mitigation, it acknowledged adaptation as a commitment in Article 4.[5] The Kyoto Protocol continued to prioritize mitigation by establishing greenhouse gas emissions-reduction targets for developed countries.[6]

In the five years leading up to COP21, developing countries prioritized achieving parity between adaptation and mitigation. The path to parity began in 2010 at COP16 in Cancun, Mexico when the Parties established the Cancun Adaptation Framework and the Adaptation Committee.[7] Notably, in the Cancun Adaptation Framework the Parties agreed, “adaptation must be addressed with the same priority as mitigation.”[8] The Parties advanced the Adaptation Framework at COP17 in Durban, South Africa in the decision by reaffirming the Adaptation Committee as “the overall advisory body to the Conference of the Parties on adaptation to the adverse effects of climate change.”[9] Building on the creation of the Cancun Framework, Parties solidified the placement of loss and damage at COP19 by creating the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (“WIM”) to serve as a loss and damage mechanism.[10]

Parity culminated at COP20 in two ways: 1) with negotiations over the required elements for Parties to include in their intended nationally determined contributions (“INDCs”), which were to be submitted prior to COP21; and 2) in the focus of the new agreement.[11] Predictably, developed countries maintained that the INDCs should focus solely on mitigation. Developing countries disagreed, and advocated to include adaptation, too.[12] Ultimately, developing countries prevailed, as evidenced by the COP20 decision text, which “[i]nvites all Parties to consider communicating their undertakings in adaptation planning or consider including an adaptation component in their intended nationally determined contributions.”[13] Parties also agreed that the new legal instrument to be developed at COP21 would address adaptation and mitigation “in a balanced manner.”[14]

Negotiations on loss and damage yielded little resolution at COP20. The decision’s introduction “welcome[d] the progress made” toward implementing the WIM, but Parties did not reach a consensus on how or even whether loss and damage should appear in the Paris Agreement.[15] The “Elements For a Draft Negotiating Text” in the draft decision’s Annex listed multiple options for the manners in which loss and damage may or may not be included in the Paris Agreement.[16]

II. Paris Agreement

At COP21, the Parties furthered parity by adopting the Paris Agreement, which treats mitigation, adaptation, and loss and damage more equally than ever before. Structurally, the Paris Agreement employs a combined top-down and bottom-up procedural approach, which inherently favors adaptation and loss and damage activities.

The Paris Agreement effectuates a country-driven process to achieve its goals. Adaptation by its very nature relies on country-driven processes. Because climate change affects individual countries in vastly different ways, appropriate adaptation actions differ among countries and consist of a broad array of specific actions.

Unlike the prior international climate treaties, the Paris Agreement’s process-focused articles on adaptation and loss and damage use differentiation to guide planning and policy implementation. Countries have differing vulnerabilities and abilities to respond to climate change. With differing dispositions toward climate change, it would be impractical to establish a global, quantitative adaptation or loss and damage goal. It would be equally impractical to delineate a uniform set of adaptation or loss and damage commitments. Relying on a bottom-up approach to address the location-specific areas of adaptation and loss and damage is most appropriate. Yet, this approach relies on a collective goal of support for these individual actions, which incorporates the top-down aspect of the combined approach.

This article looks beyond mitigation commitments and examines how the Paris Agreement’s adaptation and loss and damage provisions rely on differentiation to enable combined top-down and bottom-up approaches to Article 2’s global cooperation goals set by the UNFCCC and the COP. It describes the fundamental aspects of the Paris Agreement and the accompanying COP21 decision’s treatment of adaptation and loss and damage that allows parties to work toward a qualitative goal based on Parties’ unique vulnerabilities and abilities to respond to the impacts of climate change impacts.

Adaptation in the Paris Agreement

The Paris Agreement includes action on adaptation among the three goals that serve the Agreement’s purpose of “strengthen[ing] the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty.”[17] Later in the Agreement, Article 7 operationalizes this goal by specifically addressing the adaptive efforts Parties should make. With fourteen paragraphs, the adaptation article is the third-largest provision in the Paris Agreement—behind only mitigation, at thirty, and transparency, at fifteen.

These paragraphs focus on the need to approach adaptation collectively, even though specific adaptation needs vary from country to country. Where the Agreement is less detailed, COP21 decision paragraphs 41–46 provide greater specificity. But language confined to the decision does not carry the same legal force as the binding Agreement. Language in the decision influences the manner in which Parties can interpret the Agreement and also provides guidance for carrying out the Agreement’s objectives. Yet, because of its non-binding nature, language in the decision will likely require more negotiation at future negotiation sessions.

I. Global Goal & Challenge

Establishing a global adaptation goal was a serious source of contention among UNFCCC Parties.[18] Developing countries sought parity between mitigation and adaptation in this provision by establishing a nexus between the two concepts.[19] Developed countries opposed the global goal seeking to strengthen adaptation; they proposed no text.[20] Further complicating matters, the location-specific nature of adaptation created difficulties in formulating one unified global goal.  Adaptation needs vary widely from country to country and region to region, so agreeing on one common adaptation plan to address all Parties’ needs was not possible. Ultimately the Parties agreed to a global qualitative goal requiring all Parties to engage in their own, individual adaptation planning and implementation.  

Article 7 of the Paris Agreement begins broadly by framing the overarching “global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change.”[21]  The goal ultimately lies in promoting “sustainable development and ensuring an adequate adaptation response” in light of the temperature goal listed in Article 2 of the Agreement.[22] The adequacy of a country’s adaptation response will vary according its vulnerabilities to climate change and its respective ability to adapt to those vulnerabilities.

Article 7 “recognize[s] that adaptation is a global challenge faced by all with local, subnational, regional and international dimensions, and that it is a key component of and makes a contribution to the long-term global response to climate change to protect people, livelihoods and ecosystems.”[23] Importantly, the provision recognizes the needs for global cooperation even though adaptation is highly location-specific.

The principal of common but differentiated responsibilities and respective capabilities, although not named explicitly, is relevant to this provision. Common but differentiated responsibilities and respective capabilities is an important international environmental law principal dating back to the 1992 Earth Summit that expresses “the need to evaluate responsibility for the remediation or mitigation of environmental degradation based on both historical contribution to a given environmental problem and present capabilities.”[24]  It was a fundamental component of the UNFCCC and the Kyoto Protocol.[25] Developing countries advocated retaining this historical concept in the Paris Agreement, but were opposed by developed countries (historically the largest greenhouse gas emitters). Although common but differentiated responsibilities and respective capabilities is not expressly articulated in Article 7, the Paris Agreement does name it as a guiding principal in both the introduction and Article 2, which identifies the Paris Agreement’s overarching purpose and goals.

II. International and National Cooperation

Achieving the Paris Agreement’s global goal requires both international and national cooperation. Article 7 “recognize[s] the importance of support for and international cooperation on adaptation efforts.”[26] Yet, it does not impose mandatory commitments on Parties. The article instead states that Parties “should” engage in five enumerated actions pertaining to sharing policy-related information, strengthening institutional arrangements, assisting developing countries with adaptation planning, and generally improving adaptation actions. In addition to requesting all Parties undertake these efforts, Article 7 also “encourage[s]” the United Nations “to support the efforts of Parties to implement the [articulated] actions.”[27] Likewise, this language does not actually require the United Nations organizations to cooperate.

The Paris Agreement requires national cooperation from the Parties via national adaptation activities. Under Article 7.9, parties “shall, as appropriate, engage in adaptation planning processes and the implementation of actions, including the development or enhancement of relevant plans, policies and/or contributions.”[28] Such planning and implementation processes include actions related to adaptation actions, national adaptation plans, nationally determined prioritized actions, sustainability, and resilience building.[29] Allowing parties to establish their own adaptation actions in whatever way they deem appropriate allows differentiation to guide the national adaptation planning and implementation process.

Tracking the Parties’ national adaptation activities may prove difficult, however, due to non-binding reporting measures. Under the Paris Agreement, Parties “should” submit adaptation communications to a public registry.[30] The aspirational “should” does not require, but merely requests that Parties “submit and update periodically an adaptation communication.”[31] Thus, it is unclear whether this attempt at transparency will become widespread among the Parties. Although almost all parties submitted intended nationally determined contributions prior to COP21, they did not report on adaptation in a consistent manner.[32] Most developing countries included robust adaptation sections that detailed their needs and intended actions; however, most developed countries provided no adaptation information. Depending on Parties’ compliance and thoroughness with this request, adaptation communications could become a major topic of discussion at future COP events.

Article 7 designates help to developing countries in reaching their adaptation goals and requirements. Developing country parties are to receive “continuous and enhanced international support” for implementing adaptation plans, adaptation communications, and other measures.[33] Importantly, the Article does not indicate from whom or from where the support will come. But when read with Article 9 on finance, it is clear that developed countries will be the source of support. Pursuant to Article 9.1, “[d]eveloped country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation.”[34]

Planning and reviewing these national adaptation efforts will depend on each Party’s specific adaptation needs and ability to respond. Thus, differentiation is an important component of national activities.

III. Adaptation Needs and Mitigation Co-Benefits

Article 7.4 explains the co-benefits of adaptation and mitigation and stresses the importance of climate change adaptation, and in doing so further solidifies parity between adaptation and mitigation. The article states, “the current need for adaptation is significant and that greater levels of mitigation can reduce the need for additional adaptation efforts.”[35] Article 7 also refers to the financial aspects of adaptation. Specifically, that “greater adaptation needs can involve greater adaptation costs.”[36]

Significantly, Article 7 elevates mitigation and adaptation actions to the purview of all Parties to the Paris Agreement. Although mitigation reduces future climate risks, and adaptation addresses current climate change impacts, it is possible to create synergies between the two and “implement[t] climate policy options in a more cost-effective way.”[37] Article 7 can communicate to developed countries that increasing mitigation efforts can reduce the need and cost for future adaptation actions. To developing countries, the provision can acknowledge that implementing adequate adaptation measures can simultaneously affect mitigation.[38]

An introductory decision paragraph highlights the “benefits of ambitious and early action, including major reductions in the cost of future mitigation and adaptation efforts.”[39] Significantly, paragraph 52 of the decision states that developing countries’ financial support, which historically has been intended primarily for mitigation, should be allocated to “enhance the implementation of their policies, strategies, regulations and action plans and their climate change actions with respect to both mitigation and adaptation.”[40]  Unfortunately this financial instruction does not have the same binding effect as it would in the Agreement. Although developing countries secured language correlating adaptation and mitigation efforts in the Agreement, developed countries managed to incorporate the terms pertaining to finance, which ultimately enables these efforts, into the softer-law decision. Because of the non-binding placement of the language and the historical controversy surrounding allocation of funds, this financial-allocation language may be the subject of future negotiations.

IV. Governance

The Paris Agreement and COP21 decision paragraphs rely heavily on the Adaptation Committee for governance. Article 7.7 of the Paris Agreement calls for parties to take into account the current Cancun Adaptation Framework. COP21 decision paragraphs 41–46 provide more specific information on how to do so. These paragraphs predominantly direct the Adaptation Committee to review adaptation-related processes and make recommendations to the COP at the first meeting of the Parties to the Paris Agreement. The Adaptation Committee is an institutional arrangement under the Cancun Framework that was established at COP16 under the Cancun Agreements.[41] The Adaptation Committee’s purpose is “to promote the implementation of enhanced actions on adaptation in a coherent manner under the Convention.”[42]

The Adaptation Committee’s membership structure allows developing countries to be a driving force in adaptation governance. At COP17, the Parties decided that the Adaptation Committee will have sixteen members: two from each of the United Nations regional groups, one from a small island developing State (“SIDS”), one from a least developed country (“LDC”) Party, two from the Convention’s designated Annex I Parties (developed countries), and two from non-Annex I countries.[43] Thus, with a majority of seats, developing countries, particularly SIDS and LDCs, can wield significant influence in developing adaptation planning processes and policy recommendations for consideration by the COPs. For example, the Paris Agreement requires developing country Parties’ adaptation efforts to be recognized according to modalities “to be adopted” later.[44] COP 21 decision paragraph 41 delegates authority to the Adaptation Committee to develop these modalities.

The decision also delegates authority to the Adaptation Committee and other sub-bodies to work on adaptation finance matters, a priority area for developing countries. United Nations agencies and other financial institutions should communicate “climate-proofing and climate resilience measures” related to development assistance and climate finance programs.[45] The Adaptation Committee, the Least Developed Countries Expert Group, and other relevant institutions should recommend means of mobilizing adaptation support to developing countries and review “the adequacy and effectiveness” of adaptation support at the first meeting of Paris Agreement parties.[46] The decision also requests the Green Climate Fund, which pledged to support mitigation and adaptation equally, to expedite developing country support to assist their formulation and implementation of national adaptation plans.[47]

Yet, because these governance aspects pertaining to the Adaptation Committee appear in the decision, they are subject to change in the future. For this reason, it is likely adaptation governance, particularly of financial matters, will be a significant topic of negotiation at future COPs.

Loss and Damage in the Paris Agreement

The Paris Agreement is the first international agreement to explicitly address loss and damage, which the UNFCCC Parties have historically treated as a component of adaptation.[48] Adaptation and loss and damage function in tandem but are two distinct concepts.[49] The World Resources Institute explains that loss and damage arises from the “reality that there are some climate change impacts that cannot be adapted to—impacts that are so severe that they leave in their wake permanent or significantly damaging effects.”[50] Climate-related impacts associated with loss and damage include slow-onset events like ocean acidification, desertification, and sea level rise and also sudden extreme weather events like intense cyclones and flooding. These devastating impacts cause many types of losses, including those of lives, infrastructure, assets, ecosystems, and communities.[51]

Loss and damage in the Paris Agreement was one of the most controversial topics at COP21. Developed and developing countries debated whether to place loss and damage in the decision or the Agreement and whether to organize it as a component of adaptation or as a distinct, free-standing article. Faced disproportionately with losses of this kind, LDC parties and SIDS prioritized securing a place for loss and damage in the Paris Agreement, where its provisions would carry the full force of law. Concerned with being held liable for the costs associated with loss and damage in financially strained developing countries, developed countries strove to preclude loss and damage from appearing in the Agreement. They preferred loss and damage to appear exclusively in the decision, where its text would be nonbinding and more of a political statement.       

I. Distinct Article

Since COP14 in 2008, the Parties have disagreed on how to collectively address loss and damage. In drafting the Paris Agreement, the Parties were unresolved through to the penultimate draft as to whether loss and damage would receive its own article in the agreement, occupy a subordinate position within the Adaptation article, or be relegated to the decision. In the end, the Parties agreed to designate a distinct article of the Agreement to loss and damage.

Not only does loss and damage have its own article in the Paris Agreement, it has one of average length. With five paragraphs, article 8 on loss and damage is an average-sized article in the Paris Agreement.[52] These five paragraphs, along with decision paragraphs 47–51, focus mainly on acknowledging the importance of “minimizing and addressing loss and damage associated with the adverse effects of climate change”[53] and establishing the preexisting Warsaw International Mechanism as the official international governance mechanism under the Paris Agreement. Article 8 states that Parties “should” act cooperatively to address and minimize loss and damage associated with climate change.[54] It provides examples of “areas of cooperation and facilitation to enhance understanding, action, and support” with respect to loss and damage.[55] These examples include “early warning systems; emergency preparedness; slow onset events” and also “comprehensive risk assessment and management; risk insurance facilities . . . and resilience of communities, livelihoods and ecosystems.”[56]

A major area of contention between developed and developing country Parties was whether and how to address liability and compensation for loss and damage.[57] Liability and compensation language appeared first in the Agreement, but developed countries succeeded at pressuring the Parties to move this language to the decision.[58] With decision paragraph 51, Parties agreed that Article 8 “does not involve or prove a basis for any liability or compensation.”[59] The United States predicated its cooperation with other key aspects of the overall Agreement on the inclusion of this provision. This provision was a victory for developed countries concerned with being held liable for their heavy past and current greenhouse gas emissions. Developing countries were relieved to prevent its inclusion in the Agreement. Technically, though highly unlikely, a subsequent COP decision could modify this paragraph.

Article 8 differs from the adaptation and mitigation articles in that neither it nor its related decisions even hint at financing. How the Parties will pay for damages resulting from extreme weather or slow onset events remains unclear. The manner in which Parties will finance loss and damage planning measures also remains unclear. While the creation of a distinct article on loss and damage in the Paris Agreement concludes the debate on its proper placement, gaps in its treatment will spur future debate on adaptation-financing measures.

A. Governance Mechanism

The Parties selected the existing WIM to serve the agreement as the governance mechanism for loss and damage.[60] Based on the COP18 decision, at COP 19 the COP established the WIM and its Executive Committee as a means for continuing discussion and understanding of loss and damage.[61] But, it did so under the adaptation pillar of the UNFCCC agenda.[62] The WIM has three major functions: 1) promoting understanding of risk management; 2) strengthening communications among stakeholders; and 3) enhancing action and support.[63] An initial two-year work plan for the Executive Committee of the WIM was approved at COP20, but the WIM’s future beyond that two-year mark remained uncertain.[64] At COP21, the Parties agreed to anchor the two-year-old mechanism as the permanent governance structure for loss and damage. The agreement leaves open the possibility for the WIM to evolve over time to be “enhanced or strengthened as determined by” the Parties.[65] Thus, this young mechanism will likely be a topic of future negotiations.

The COP21 decision paragraphs cement the WIM’s governance role by requesting it carry out specific governance actions.[66] The Executive Committee should: establish comprehensive risk management strategies; create a task force for displacement issues related to the adverse impacts of climate change; and prepare annual reports.[67] Including language related to displacement was a pillar of developing countries’ loss and damage negotiation demands.[68] Ideally for developing countries, however, the issue of displacement and migration would have been incorporated into the WIM’s major action areas listed in Article 8.4 of the agreement.

Through dedicated efforts and compromise, both developed and developing countries succeeded at certain aspects of the loss and damage negotiations. Developing countries achieved a freestanding loss and damage article in the Paris Agreement that instilled the WIM as a permanent governing institution to promote best methods of approaching loss and damage. Developed countries, spearheaded by the United States, managed to achieve zero-liability language in the decision.

The Parties will evaluate the WIM’s efforts at COP22 in Morocco. There, the Parties will likely engage in negotiations and discussions concerning loss and damage financing, the WIM’s governance, and displaced populations.

Conclusion

The Paris Agreement’s treatment of adaptation and loss and damage reflect the Parties’ willingness to allow differentiation to guide national policy planning and implementation and also to grant adaptation greater parity with mitigation. Unlike mitigation, which can reach quantitative greenhouse gas emissions goals, adaptation and loss and damage require location-based and process-focused goals. The Paris Agreement’s procedural method of relying on differentiation to enable a combined top-down and bottom-up approach caters to the unique location-specific nature of adaptation and loss and damage.

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[1] European Parliament, The Paris Agreement: A New Framework for Global Climate Action 2 (2016), http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573910/EPRS_BRI(2016)573910_EN.pdf  (last visited Apr. 10, 2016).

[2] Id.

[3] Id.

[4] United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107 [hereinafter UNFCCC].

[5] Id. at art. 4.1(e).

[6] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998).

[7] Chronology-Adaptation Committee, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/7518.php (last visited Apr. 10, 2016).

[8] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Sixteenth Session, held in Cancun from 29 November to 10 December 2010, ¶ 2(b), U.N. Doc. FCCC/CP/2010/7/Add.1 (Mar. 15, 2011).

[9] Id. ¶ 92.

[10] Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2015).

[11] Lima Call for Climate Action Puts World on Track to Paris 2015, U.N. Framework Convention on Climate Change (Dec. 14, 2014), http://newsroom.unfccc.int/lima/lima-call-for-climate-action-puts-world-on-track-to-paris-2015/; At COP17, the Parties established the Ad Hoc Working Group on a Durban Platform for Enhanced Action and mandated that it develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by 2015. U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Seventeenth Session, Held in Durban from 28 November to 11 December 2011, 2, U.N. Doc. FCC/CP/2011/9/Add.1, ¶ 2, Decision 1/CP.17 (Mar. 15, 2012).

[12] Outcomes of the U.N. Climate Change Conference in Lima, Ctr. for Climate & Energy Sols., http://www.c2es.org/international/negotiations/cop-20-lima/summary (last visited Apr. 12, 2016). They also advocated including finance, technology, and capacity building as fundamental INDC elements. Id.

[13] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twentieth Session, Held in Lima from 1 to 14 December 2014, ¶ 12, U.N. Doc. FCCC/CP/2014/10/Add.1 (Feb. 2, 2015).

[14] Id. ¶ 2.

[15] Id. at 2.

[16] Id. at 6.

[17] Paris Agreement, art. 2.1, Dec. 15, 2015, http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf. The Parties adopted the Paris Agreement on December 12, 2015, but it has not yet been ratified or entered into force. The signing period will open April 22, 2016 and it will enter into force once 55 countries accounting for at least 55% of global emissions deposit their ratification instruments. Historic Paris Agreement on Climate Change: 195 Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius, U.N. Framework Convention on Climate Change, http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/ (last visited Apr. 15, 2016).

[18] Chukwumerije Okereke et al., Options for Adaptation and Loss and Damage in a 2015 Climate Agreement 6 (unpublished) (Nov. 2014) (on file with the World Res. Inst.), http://act2015.org/ACT_2015_Options_for_Adaptation_and_Loss_&_Damage.pdf (last visited Apr. 12, 2016).

[19] Id.

[20] Id.

[21] Paris Agreement, supra note 17, at art. 7.1.

[22] Id.

[23] Id. at art. 7.2.

[24] Vito De Lucia, The Encyclopedia of the Earth, Common But Differentiated Responsibility (July 27, 2007, 11:01 AM), http://www.eoearth.org/view/article/151320/.

[25] Id.

[26] Paris Agreement, supra note 17, at art. 7.6.

[27] Id. at 7.8.

[28] Id. at art. 7.9.

[29] Id.

[30] Id. at art. 7.12.

[31] Id. at art. 7.11.

[32] Kathleen Mogelgaard & Heather McGray, With New Climate Plans, Adaptation Is No Longer an Overlooked Issue, World Res. Inst.  (Nov. 24, 2015), http://www.wri.org/blog/2015/11/new-climate-plans-adaptation-no-longer-overlooked-issue.

[33] Paris Agreement, supra note 17, at art. 7.13.

[34] Id. at 9.1.

[35] Id. at art. 7.4.

[36] Id.

[37] Synergies Between Adaptation and Mitigation, weAdapt, https://www.weadapt.org/knowledge-base/synergies-between-adaptation-and-mitigation (last visited Apr. 12, 2016).

[38] The Mitigation of Climate Change in Agriculture (MICA) Global Program, weAdapt (Dec. 14, 2012, 2:29 PM), https://www.weadapt.org/knowledge-base/synergies-between-adaptation-and-mitigation/mitigation-of-climate-change-in-agriculture-micca. Studies confirm that co-benefits of adaptation and mitigation exist “in the areas of low carbon development, climate-smart agriculture, water-energy-land nexus, bioenergy, [and] blue carbon.” Id.

[39] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twenty-First Session, Held in Paris from 30 November to 13 December 2015 2, U.N. Doc. FCCC/CP/2015/10/Add.1 (Jan. 29, 2016) [hereinafter COP21 decision].

[40] Id. at 8.

[41] Chronology - Adaptation Committee, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/7518.php (last visited Apr. 12, 2016).

[42] Id.

[43] Members of the Adaptation Committee, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/6944.php (last visited Apr. 12, 2016).

[44] Paris Agreement, supra note 17, at art 7.3.

[45] COP 21 decision, supra note 37, at ¶ 43.

[46] Id. ¶ 45.

[47] Id. ¶ 46.

[48] Kathleen Mogelgaard & Heather McGray, When Adaptation Is Not Enough: Paris Agreement Recognizes “Loss and Damage”, World Res. Inst. (Dec. 24, 2015), http://www.wri.org/blog/2015/12/when-adaptation-not-enough-paris-agreement-recognizes-“loss-and-damage”.

[49] Jorge Vinuales, The Paris Climate Agreement: An Initial Examination (Part II of III), Eur. Journal of Int’l Law Blog (Feb. 8, 2016), http://www.ejiltalk.org/the-paris-climate-agreement-an-initial-examination-part-ii-of-iii/.

[50] Mogelgaard, supra note 46.

[51] Id.

[52] Article 8 receives a comparable amount of treatment as Article 10 on technology development and transfer and Art. 11 on capacity building.

[53] Paris Agreement, supra note 17, at art. 8.1.

[54] Id. at art. 8.3.

[55] Id. at 8.4.

[56] Id. at art. 8.4.

[57] Ben Adler, Why the Words “Loss and Damage” Are Causing Such a Fuss at the Paris Climate Talks, Vox Energy & Env’t, http://www.vox.com/2015/12/9/9871800/paris-cop21-climate-loss-damage (last updated on Dec. 9, 2015, 9:00 AM).

[58] Id.

[59] COP21 decision, supra note 37, at ¶ 51.

[60] Paris Agreement, supra note 17, at art. 8.2.

[61] Chronology – Loss and Damage, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/7545.php (last visited Apr. 12, 2016).

[62] Id.

[63] Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2016).

[64] Id.

[65] Paris Agreement, supra note 17, at art. 8.2.

[66] COP21 decision, supra note 37, at ¶¶ 48–50.

[67] Id.

[68] Saleemul Huq & Roger-Mark De Souza, Not Fully Lost and Damaged: How Loss and Damage Fared in the Paris Agreement, Wilson Ct.r (Dec. 22, 2015), https://www.wilsoncenter.org/article/not-fully-lost-and-damaged-how-loss-and-damage-fared-the-paris-agreement.

Towards a Middle Path: Loss & Damage in the 2015 Paris Agreement

Maryam Al-Dabbagh

Maryam Al-Dabbagh is an L.L.M student in Environment & Energy Law at New York University School of Law and is the Graduate Editor of the NYU Environmental Law Journal. This post is part of the Environmental Law Review Syndicate.

Introduction

In the lead-up to the Paris talks, the issue of loss and damage (L&D) was portrayed to be one of the biggest hurdles in the quest for an agreement. L&D had already suffered multiple drawbacks in previous talks, such as the mass walkout by G-77 countries at COP19 in Warsaw in protest of the response by developed countries to their demands for L&D.[1] Surprisingly, no similar issues occurred in Paris; instead, the agreement articulated a middle path between the seemingly divergent aims of developing and developed countries. This paper will trace that path through an analysis of the L&D articles of the agreement, and set forth the headway as well as the challenges that should be expected in coming years.

Defining Loss & Damage

The first triumph for developing countries on the L&D front in Paris was the fact that L&D was dedicated its own Article, Art. 8 of the Agreement, and was recognized as separate from adaptation. Developed countries had originally pushed for L&D to be slotted under the latter framework, which was where the Warsaw International Mechanism for Loss and Damage had been placed in 2013, to the consternation of developing countries.[2] This new placing demonstrates the fact that loss and damage is finally seen as on par with mitigation and adaptation, which have long been pillars of the climate regime under the UNFCCC, and is an important political statement on recognition of its acknowledged status on the world stage of climate negotiations.[3] This recognition is set out in Art. 8.1 of the agreement: “Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.”[4]

To understand exactly what is meant by the term, it is important to note that ‘loss’ and ‘damage’ should not be conflated with one another. ‘Loss’ refers to negative climate change-induced impacts that are beyond repair and cannot be restored, such as glacial melt leading to a loss of freshwater resources; ‘damage’ indicates repairable impacts that can be restored, such as building damage following a cyclone.[5] L&D also includes negative effects that can be reduced, but not entirely avoided, through adaptation.[6] Essentially, L&D is a ‘post-adaptation problem’, where mitigation and adaptation have not been adequate to avoid negative climate change impacts. The insistence of vulnerable countries on the inclusion of L&D on its own as a ‘red line’ throughout the Paris negotiations reflects realistic forecasts for what they will have to confront as part of an unpredictable future.[7] These concerns were acknowledged by cementing L&D in Art. 8. Another important issue for vulnerable countries was to reinforce and clarify the place of the Warsaw International Mechanism (WIM) within the agreement.

The Role of the Warsaw International Mechanism

In the Paris Agreement, Art. 8 and Art. 48 solidify the continuation of the WIM’s role following its review in 2016. This role was originally set out in its 2014 workplan, which emphasizes the importance of gathering information and developing expertise on issues relevant to L&D—particularly problems such as slow-onset events where not much experience has been developed, and where collaboration and communication among stakeholders will be especially key to developing innovative solutions in future.[8] Thus, the WIM’s role is somewhat limited, stopping short of offering any measures through which to provide concrete support, or any means through which its proposals can be implemented. Prior to the Paris negotiations, this led to calls by some countries to either reenergize the WIM’s mandate by expanding it through increasing support, and including alternative approaches and paradigms, or to replace it with a new mechanism.[9]

Neither of these approaches materialized. Instead, as is true for the way L&D was treated in the Paris agreement as a whole, a middle path emerged: a reiteration of the WIM’s initial goals as expressed in its original workplan, while also including elements of what developing countries had requested in their proposal prior to the agreement. Articles 8.3 and 8.5 restate the necessity of cooperation among parties to deal with the effects of L&D, whether among themselves or with other relevant organizations and bodies, whether under the Agreement or outside of it. Art. 8.4 specifies certain areas where coordination will be necessary under the WIM, such as emergency preparedness related to sudden weather disasters, slow onset events, risk management and insurance, and non-economic loss and community resilience.[10] Each of these areas poses challenges, and the WIM’s assistance will be invaluable to vulnerable countries in confronting them.

The WIM and Disaster Events

For sudden weather disasters, the agreement lists emergency preparedness and early warning systems as areas of cooperation for Parties. As the WIM’s workplan states, this involves a cooperative assessment of the capacity of risk management systems for emergency preparedness, reducing risks through anticipatory action, and increasing resilience following such disasters during the process of rebuilding and rehabilitation.[11] Countries worldwide have had a good deal of experience in dealing with such disasters, and there are best practices that can be duplicated and implemented where needed.

A greater challenge lies in dealing with largely unprecedented issues such as slow-onset events, which is why the WIM’s workplan focuses mainly on sharing knowledge and improving access to information.[12] Another major challenge in assessing the adverse impacts of slow-onset disasters such as extreme drought, sea level rise and glacial melt, or attempting to mitigate them by preparing beforehand, is that they often do not show highly visible impacts but rather produce large, indirect losses with impacts spread out over large areas.[13] Scholars have noted the need to combat slow onset events by convening multilateral funding agencies to develop different, new and innovative financial measures that can help countries deal with L&D.[14]

The WIM and Risk Management

Risk management and assessment plays an important role in L&D, as it does for many other environmental issues, and the workplan stresses the importance of enhancing and developing measures such as insurance, and encouraging institutions to incorporate them as part of development projects and investment criteria. Regional risk management platforms, such as the Caribbean Catastrophe Risk Insurance Facility,[15] have proven to be adept at dealing with L&D-related challenges, since members all regularly face the same form of disaster risk. These regional platforms might pave the way for an eventual ideal solution: an international climate risk insurance facility which would substantially diversify the risk of L&D from extreme weather events, lower the costs of managing risks, and guarantee the delivery of support in a timely and targeted manner once disaster does strike.[16]

However, there are multiple drawbacks to the usage of insurance that prevent it from being considered the optimal financial measure for risk management in addressing L&D. For one, as mentioned earlier, the high level of risk for issues such as sea level rise would translate into prohibitively costly premiums for countries that may not be able to afford it,[17] and a regional platform may not be able to avail all the costs. Additionally, insurance is not a solution that can be used for all forms of L&D; its usage is customarily restricted to short-term, high-impact, extreme weather disasters.[18] Slow-onset events, which develop over the long term, present risks that are open-ended and difficulty to quantify, which has not traditionally proven popular with insurers. The same drawbacks also apply to customary financial mechanisms such as catastrophe bonds. As such, alternative financial mechanisms and tools should also be developed under the WIM.

In coming years, the role of the WIM will only grow more important, as the world begins to feel the effects of L&D more acutely. The question of whether the WIM itself is going to require further, more fundamental reformation will be up for review in 2016. If past experience indicates anything, it is that the voices of developing countries are being heard more and more, and thus it would not be surprising if their vision for a more involved, hands-on, action-oriented WIM comes to pass as part of the next agreement’s middle path. The history of the WIM is essentially one of initial foot-dragging on the part of developed countries, which eventually acquiesces to the stronger moral case made by vulnerable countries. This acquiescence was nowhere to be found on the subject of liability and compensation.

Liability and Compensation in the Agreement

Long one of the most controversial issues surrounding L&D, this issue was seemingly permanently settled by Art. 52 of the decision text, which reads: “Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.” Developed countries had insisted on the explicit exclusion of linking loss and damage to liability and compensation, in return for anchoring L&D into the agreement.[19] The bespoke reluctance of developed countries to embrace L&D, based on their rejection of liability and compensation, was described as “creating a bogeyman that does not exist”,[20] given the fact that developing countries had removed any reference to those principles from their submitted text prior to the beginning of the Paris climate negotiations. Some took the inclusion of this clause as a failure for vulnerable countries, betraying their legal rights to compensation for the sake of a hollow compromise.[21]

The question yet to be resolved is whether or not any legal rights do in fact exist. The basis for any claims of L&D compensation would have been grounded in the principle that states should be held responsible for any violation of an international obligation.[22] Therefore, the first step is to determine whether or not cutting GHG emissions should be considered such an obligation on high-emitting states, the violation of which would function as a trigger for liability under standard principles of customary international law, or the text of any international treaties.[23]

Liability in Customary International Law

It has been well established by science that 63 percent of global GHG emissions from 1800 to 2005 have been contributed over the years by just seven of the top emitting countries: the US, China, Russia, Brazil, India, Germany and the United Kingdom, and 82 percent of GHG emissions are the responsibility of the top twenty emitters.[24] Claims of compensation for climate change damages would be based on acknowledging the historical responsibility of such states for significantly contributing to the causes of climate change. Specific principles of international law that have been cited to support these claims include the no-harm rule and the polluter-pays principle.

Under the no-harm rule, considered the main norm under customary international law that is applicable to climate change, each State is obligated to prevent, reduce and control the risk of environmental harm to other states.[25] In order to be held liable, two conditions must be met: that the offending state has inflicted a serious amount of harm on the injured state, and that the offending state has through its actions failed to adhere to a required standard of care through negligence.[26]

States may be held negligent for failing to act upon their knowledge of the harm caused by climate change, amid growing consensus in the scientific community surrounding its anthropogenic causes.[27] However, the no-harm rule also requires balancing the offending state’s technical and economic capabilities against the damage inflicted on the injured state.[28] Determining this appropriate balance is where subjectivity becomes involved, since it weighs the territorial sovereignty of one state against the territorial integrity of another, making application of the no-harm rule controversial.[29] It is therefore unlikely that the no-harm rule would lead to any conclusive findings of liability for which emitting states would be obliged to pay compensation.

The polluter-pays principle mandates that polluters should bear the costs of compensating for the damage they cause to the environment and/or to human health,[30] therefore obliging polluters to account for the externality of the pollution they cause.[31] This would provide a convenient basis for those seeking compensation for L&D damage from historical emitters of GHGs (“polluters”). However, the main problem with attempting to use this principle in the context of climate change is the simple fact that, in the normative context, “polluters are discrete entities, their legal negligence is well-documented, and losses and damages can be clearly attributed to wrongdoing.”[32] This is not the case for climate change; the complex interconnectedness between GHG emissions and industrialization in practically every sector and nation in the world renders a clear-cut accounting of responsibility practically impossible. In the global commons, no one ‘herdsman’ can be held completely responsible, and therein lies the tragedy.

In the end, although the aforementioned principles are based on established theories of customary international law, the fact that international interstate climate change litigation remains hitherto unexplored territory leaves the outcome of any violations of such principles ultimately uncertain, yet unlikely to result in liability.

Liability in International Treaties

When it comes to obligations established by international treaties and agreements, Principle 13 of the Rio Principles established during the first Earth Summit in 1992 reads that “states shall co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”[33] However, no legal action has been based on this principle, whose explicit meaning does not seem to establish a distinct legal obligation. Attempts to establish liability based on UNFCCC Art. 4, which places climate change-related commitments on different countries, would also probably fail to provide a concrete basis for setting obligations that would bring about compensation claims. This is due to the vagueness of the requirements placed on countries to “mitigate climate change” under Art. 4(1). Although Art 4(2) is more precise, it applies only to Annex 1 countries, leaving out major emitters such as China and India.[34] This imbalance between the obligations placed on countries was a drawback of the Kyoto Protocol that minimized its effect, and would not constitute a viable basis for liability.[35]

Liability in the Real World

Beyond the legal difficulties, there are further drawbacks regarding the realistic outcomes of such attempts: the problem of disaster attribution, uncertainty regarding the appropriate form and procedure for issuing such compensation, and—most of all—the sheer political unfeasibility of such actions, due to the lack of an international sovereign.

First, developed countries rejecting liability often cite the fact that scientists cannot yet conclusively attribute certain events or L&D to climate change, given the high uncertainty associated with the contested accuracy of climate models and mechanisms currently used,[36] and the lack of good traceability measures.[37] Attributing specific weather events to climate change is already challenging, due to the disproportionate relationship between the intensity of hazards and impacts of disasters. Connecting the impact and damage that result from such events is exponentially more complicated, because of the complexity of the interactions involved.[38] Producing statistically significant trends is also practically impossible, given the scarcity of available data on historical weather-related disasters.[39]

Second, procedural and technical issues surrounding the likely form of climate change compensation also present a challenge to any injured countries. Reparations are typically made up of an apology, compensation and a guarantee of non-repetition.[40] Putting aside the fact that an apology would be politically unpalatable for the majority of high-emitting countries, questions remain regarding how the compensation should be calculated, and what form it would take. Additionally, which court would have the appropriate jurisdiction?[41]

For the foreseeable future, these vital questions will remain unanswered. Because even if, theoretically, countries could be found liable for their emissions of GHGs under international law, and the issues of attribution and calculating compensation could be solved, and an appropriate venue could be selected, and a judgment was finally issued, enforcement remains elusive. There is a distinct probability that after that entire process, any countries found liable could simply ignore any outcome. Countries would be highly wary of allowing the Pandora’s box of liability to be opened. From colonialism to slavery, considering historic responsibility for damages wrought throughout the centuries might bring about an untold number of claims, and an enormous amount of damages, that would never be politically acceptable or economically feasible to pay.

Therefore, due to the lack of an international sovereign to ensure enforcement of such a judgment, countries could never be held truly accountable. No matter the underlying principles involved, to claim otherwise simply ignores the realities of imbalanced political power. Powerful, industrialized developed countries that are historically responsible for the vast majority of emissions prove as much by their assertions that demands for compensation are of mere moral character, and have no place in the negotiations. They emphasize that L&D should focus on building capacity to deal with risk,[42] and otherwise addressing the negative effects of climate change in a non-adversarial way.[43]

Future Implications of Art. 52

Regarding the legal outcome of Art. 52 of the Paris Agreement’s decision text, it should be noted that Art. 52 does not provide a completely conclusive justification for banning all future liability/compensation attempts by vulnerable countries. The closest equivalent to this clause is its opposite, stating the lack of exclusion of their rights for holding states responsible for climate change, submitted by four small island states, Fiji, Kiribati, Nauru, and Tuvalu upon signing the UNFCCC: “Understanding that signature of the convention shall in no way constitute a renunciation of any rights under international law concerning state responsibility for the adverse effects of climate change and that no provisions in the convention can be interpreted as derogating from the principles of general international law.”[44] Since there have been no meaningful precedents of action taken under these clauses, their effectiveness remains questionable.

Also significant is Art. 52’s location in the decision text, a section of the Paris deal that is not legally binding.[45] This brings about considerable ambiguity in terms of whether the clause shields conceivably culpable states from the long-term effects of their actions. One somewhat convoluted argument is that by mentioning liability and compensation at all, high-emitting countries have implicitly accepted responsibility for taking action to avoid the most disastrous outcomes of climate change, opening the door for claims in the future. Should worst come to worst and the displacement of millions is in the balance, affected countries might “take it to an international forum, and the gloves come off”.[46] This outlook acknowledges the political reality that state-versus-state cases were never meant to come about in the short term. Any future litigation would likely only be the result of a last-ditch measure of desperation by countries facing imminent obliteration, such as islands disappearing beneath rising seas.

Overall, whether or not the Paris agreement truly excluded liability and compensation as a possible option for developing countries to pursue, it does not appear to be a feasible option in the foreseeable future to obtain the help they need. One of the most important factors to consider when discussing effective ways of addressing L&D is that much of what constitutes L&D simply cannot be addressed holistically by merely demanding money to throw at the problem, and so liability and compensation would not fully address the issue. A more acceptable and, arguably, more effective multilateral basis for concretely addressing L&D is through a framework of solidarity and collective responsibility.[47] Developed countries could provide support through both funding and non-monetary assistance with coping capacity, under the WIM’s mandate.[48] One such example might be providing long-term loans at low interest rates to developing countries to advance GHG-friendly development, as recently suggested by an Indian official.[49] Whether developed countries will actually follow through on their promises to provide such support remains to be seen.

Beyond State v. State Liability

Apart from the possibility of interstate legal action, pursuing L&D relief through liability is still a very real option. On a case-by-case basis, involving entities whose culpability is more readily established than the vast, radical uncertainty surrounding sovereign countries’ liability to one another, such pursuits have gained considerable momentum over the past several years. This applies both nationally, such as in cases of individual citizen suits against governments to bring about concrete action on climate change, and globally, such as pursuing corporate liability.

Examples of the first instance include the Urgenda case in the Netherlands. A citizen’s platform successfully brought a claim against the Dutch government for failing to discharge its duty of care to protect its people from the effects of climate change. The judge issued a ruling that mandated bringing emissions reductions of at least 25 percent below current rates.[50] Another example is the Leghari case, where a farmer brought a case against the government of Pakistan for failing to implement its climate change strategy, resulting in the court ordering the establishment of a new climate change commission. More citizen lawsuits have been filed in quick succession based on the success witnessed in these cases, including in Belgium, Australia, and the state of Washington in the US.[51]

Corporate Climate Liability

A number of cases are currently being litigated that question the liability of corporations, arguably inspired by the 1990s crackdown on tobacco companies for damages to public health and welfare. Greenpeace Southeast Asia is currently preparing a suit to be brought in front of the Philippine Commission for Human Rights, against a number of high-profile fossil fuel producing corporations that profit from climate change-inducing energy, such as Gazprom, Glencore Xstrata and Exxon Mobil.[52] Another case involves a Peruvian farmer suing German energy giant RWE, requesting it to pay 0.47 percent of the estimated project cost to protect a valley threatened by a melting glacier, based on proportional liability for RWE’s 0.47 percent share of world emissions between 1751-2010.[53]

 Another option would be to follow the example provided by the International Oil Pollution Compensation Fund, founded under the 1969 International Convention on Civil Liability for Oil Pollution Damage. The Fund provides relief to parties who have suffered pollution damages from oil spills, and who then claim compensation.[54] These funds are financed through a fee levied on entities that purchase more than a certain amount of crude oil in a year. Thus, to obtain the funds needed to address L&D, a similar convention could be enacted to levy a fee on polluters that would be funneled into an L&D fund that would provide relief for countries or parties suffering from L&D.

This latter solution would circumvent some of the challenges involved in the calculation of an appropriate amount of L&D compensation in the case of corporate liability. Both cases mentioned do not provide concrete amounts of compensation; the RWE case asks for a largely symbolic amount based on proportional liability that would provide for only a fraction of a percentage of what is needed. Civil liability cases can provide for only a limited amount of funds, and it is clear that the need for funds that are required in order to effectively address L&D is only going to increase. Therefore, measures such as the IOPCF seem to provide a useful blueprint on holding corporations monetarily accountable for negative outcomes resulting from their core businesses.

Conclusion

This paper attempted to sketch a picture of the way that the recent Paris negotiations addressed the issue of L&D; its definition, the role of the WIM, liability and compensation, and alternative options, all through the lens of how a middle path between developed and developing countries emerged in search of common ground to facilitate the eventual agreement. Over the years, the failures that have manifested time and time again in climate negotiations have been chalked up to the seemingly impossible rift that has opened up between both blocs. From Kyoto to Copenhagen, this insurmountable hurdle could not be cleared, and it led to years of stagnation that only resulted in exacerbating the problem of climate change for everyone involved.

While Paris was by no means an entirely balanced agreement, the method in which the issue of L&D was addressed provided a blueprint for how both blocs must push forward, in a spirit of collegial cooperation, not mutual sabotage. With untold numbers of lives hanging in the balance, they were able to put together an agreement that exemplified the necessary compromise. The middle path was simply the best option for both, which was why it materialized. Continuing on this middle path will be necessary in order to avoid a tragic outcome for the ultimate commons.

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[1] Vidal, J. (2013) ‘Poor countries walk out of UN climate talks as compensation row rumbles on’. The Guardian. http://www.theguardian.com/global-development/2013/nov/20/climate-talks-walk-out-compensation-un-warsaw

[2] Okereke, C., Baral, P., and Dagnet, Y. (2015) ‘Options for Adaptation and Loss & Damage in a 2015 Climate Agreement’. ACT 2015 Working Paper. http://act2015.org/ACT_2015_Options_for_Adaptation_and_Loss_&_Damage.pdf

[3] Carbon Brief (2015) ‘Analysis: The final Paris climate deal’. Carbon Brief.  http://www.carbonbrief.org/analysis-the-final-paris-climate-deal

[4] Paris Agreement (2015) FCCC/CP/2015/L.9. http://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf

[5] Kakakhel, Kashmala (2012) ‘Loss and Damage – From Defining to Understanding to Action’. Climate & Knowledge Development Network.

[6] In Decision 2/CP.19 (2013), the Parties acknowledged that “loss and damage associated with the adverse effects of climate change includes, and in some cases involves more than, that which can be reduced by adaptation”.

[7] Pacia, S. (2015) ‘COP21: PH will not cross ‘red line’ on loss and damage’. Philippine Daily Inquirer. http://newsinfo.inquirer.net/746590/cop21-ph-delegation-loss-and-damage-red-line

[8] UNFCCC (2014) WIM two-year workplan-18 September 2014. [Online] http://unfccc.int/files/adaptation/cancun_adaptation_framework/loss_and_damage/application/pdf/workplan_18sept_11am.pdf

[9] Schäfer, L., & Kreft, S. (2014). Loss and Damage: Roadmap to Relevance for the Warsaw International Mechanism. Germanwatch (March 2014), at, 5.

[10] Paris Agreement (2015) FCCC/CP/2015/L.9. http://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf

[11] UNFCCC (2014) _18sept_11am.pdf

[12] Id.

[13] World Bank (2006) ‘Overcoming drought : adaptation strategies for Andhra Pradesh, India.’ Directions In Development. Environment and Sustainable Development, World Bank.

[14] Stabinsky (2015)

[15] UNFCCC (2014)

[16] Munich Climate Insurance Initiative (2012) ‘Insurance solutions in the context of climate change-related loss and damage’. SBI Work Program on Loss and Damage.

[17] Democracy Now. ‘Loss & Damage: U.S. Stymies Push for Compensation for Climate Devastation at U.N. Climate Summit’. (2015) Democracy Now.

[18] Stabinsky, D. (2012) ‘Tackling the Limits to Adaptation: An International Framework to Address ‘Loss And Damage’ from Climate Change Impacts’. ActionAid Int’l, CARE Int’l and WWF Int’l.

[19] Sethi, N. (2015) ‘US pressure tactics work, clause excluding compensation option retained’. Business Standard. http://www.business-standard.com/article/current-affairs/us-pressure-tactics-work-clause-excluding-compensation-option-retained-115121200365_1.html

[20] Alegado, J. (2015) ‘Crunch time for 'loss and damage' in Paris climate talks’.Rappler. http://www.rappler.com/science-nature/environment/115480-cop21-crunch-time-loss-damage

[21] Sethi, N. (2015).

[22] Faure, M. G., & Nollkaemper, A. (2007). ‘International liability as an instrument to prevent and compensate for climate change.’ A Stan. Envtl. LJ, 26, 123.

[23] Shaw, M. N. (2003). International Law. Cambridge, UK; New York, Cambridge University Press.

[24] Matthews, H Damon, Tanya L Graham, Serge Keverian, Cassandra Lamontagne, Donny Seto and Trevor J Smith (2014) ‘National contributions to observed global warming’, Environmental Research Letters.

[25] Tol, R. S. J. and R. Verheyen (2004). "State Responsibility and Compensation for Climate Change Damages - A Legal and Economic Assessment." Energy Policy 32(9): 1109-1130.

[26] Voigt, C. (2008). "State Responsibility for Climate Change Damages." Nordic Journal of International Law 77: 1 - 22.

[27] Mayer, B. (2014). ‘State responsibility and climate change governance: A light through the storm.’ Chinese Journal of International Law 13: 1-40.

[28] Id.

[29] Voigt, C. (2008)

[30] Khan, M. R. (2015). Polluter-Pays-Principle: The Cardinal Instrument for Addressing Climate Change. Laws, 4(3), 638-653.

[31] Faure, Michael, and David Grimeaud. “Financial assurance issues of environmental liability.” In Deterrence, Insurability and Compensation in Environmental Liability. Edited by Michael Faure. London: Springer, 2003, pp. 194–206.

[32] Wrathall, D., Oliver-Smith, A., Sakdapolrak, P., Gencer, E., Fekete, A., & Reyes, M. L. (2013). ‘Conceptual and operational problems for loss and damage.’ Population Environmental Research.

[33] UN (1992): Rio Declaration on Environment and Development. Principle 13. http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

[34] UNFCCC (1995) Framework Convention on Climate Change. http://unfccc.int/resource/docs/cop1/07a01.pdf .

[35] UNFCCC (2014) Kyoto Protocol. http://unfccc.int/kyoto_protocol/items/2830.php .

[36] Hulme M, O'Neill SJ, Dessai S (2011) Climate Change: Is Weather Event Attribution Necessary for Adaptation Funding? Science 334: 764-765.

[37] Mathew, L. M. and Akter, S. (2015) ‘Loss and damage associated with climate change impacts’, in: W.-Y. Chen, J. Seiner, T. Suzuki and M. Lackner (Eds.), Handbook of Climate Change Mitigation and Adaptation (1st edn.), Springer, New York.

[38] World Bank (2013). ‘Building Resilience: Integrating climate and disaster risk into development. Lessons from World Bank Group experience’. The World Bank, Washington DC. http://www.worldbank.org/content/dam/Worldbank/document/SDN/Full_Report_Building_Resilience_Integrating_Climate_Disaster_Risk_Development.pdf

[39] Huggel, C., et al. 2013. Nature Climate Change. Loss and Damage Attribution. Macmillan Publishers, Limited. doi:10.1038/ nclimate1961.

[40] Burkett, Maxine (2009) ‘Climate Reparations’, Melbourne Journal of International Law.

[41] The question of appropriate jurisdiction is too exhaustive to be dealt with adequately in this paper, but it does present a very real issue.

[42] Hoffmaister JP, Talakai M, Damptey P, Barbosa AS. (2014) ‘Warsaw International Mechanism for loss and damage: Moving from polarizing discussions towards addressing the emerging challenges faced by developing countries.’ http://www.lossanddamage.net/4950.

[43] Taraska, Gwynne (2015) ‘The Meaning of Loss and Damage in the International Climate Negotiations’, Center for American Progress.

[44] Declarations of Kiribati, Fiji, Nauru and Tuvalu upon signature of the UNFCCC, 1771 UNTS 317-318.

[45] Pashley, A. (2015) ‘Did the Paris deal rule out climate compensation?’ Climate Home. http://www.climatechangenews.com/2015/12/18/did-the-paris-deal-rule-out-climate-compensation/

[46] Id

[47] Rajamani, L. (2015) ‘Addressing Loss and Damage from Climate Change Impacts’. Economic & Political Weekly, Vol. l No. 30 http://www.cprindia.org/sites/default/files/articles/Addressing_Loss_and_Damage_from_Climate_Change_Impacts.pdf

[48] Adler, B. (2015) ‘Here’s why the words “loss and damage” are causing such a fuss at the Paris climate talks.’ http://grist.org/climate-energy/heres-why-the-words-loss-and-damage-are-causing-such-a-fuss-at-the-paris-climate-talks/

[49] Press Trust of India (2015). ‘Carbon Emission: Principle of Polluter Pays Must be Respected, Says Piyush Goyal’ NDTV. http://www.ndtv.com/india-news/carbon-emission-principle-of-polluter-pays-must-be-respected-says-piyush-goyal-1224856

[50] Crosland, Tim (2015) ‘Vulnerable countries warned: Protect your legal rights in a Paris accord’. Climate Home. http://www.climatechangenews.com/2015/10/23/vulnerable-countries-warned-protect-your-legal-rights-in-a-paris-accord/

[51] Id.

[52] Darby, M. (2015) ‘Around the world in 5 climate change lawsuits.’ http://www.climatechangenews.com/2015/07/08/around-the-world-in-5-climate-change-lawsuits/

[53] French, K. (2015) ‘A Peruvian farmer is suing an energy giant over climate change’.

http://www.theverge.com/2015/12/2/9821758/climate-change-lawsuit-un-rwe-energy-vs-peru-farmer

[54] International Oil Pollution Compensation Fund (2015) ‘About Us’.  http://www.iopcfunds.org/about-us/

La Vie en Vert

Daniel Carpenter-Gold

Daniel Carpenter-Gold is Managing Editor of Harvard Environmental Law Review.This post is part of the Environmental Law Review Syndicate.

It’s done. Like a reluctant Odysseus, we have fastened ourselves to the mast of emissions reductions with Bungee cords (not too tight, now!) and stuffed one ear full of wax—just in case those cheap, dirty fossil-fuel Sirens have something interesting to say. But what is this “Paris Agreement”?

What did we promise?

After some initial optimism, debate over the outcome document has been mostly about precisely what flavor of evil the negotiators have handed us. There are interesting framing moves in the document—the target for a cap on temperature increases is being nudged down from 2°C to 1.5°C, the net-zero “carbon neutrality” approach makes carbon sinks and carbon-capture technology more prominent, and the $100 billion promised in the Copenhagen Accord ended up in the non-binding Paris Decision rather than the Agreement itself—but the real action is in Art. 4, dealing with Nationally Determined Contributions (“NDCs”).

Since Luke Grunbaum at the UCLA Journal of Environmental Law & Policy has already put out a great breakdown of the NDC approach, I’ll keep it short: the NDCs are statements from each country (or group, in the case of the EU) laying out how much they will decrease their greenhouse gas emissions. Unlike the Kyoto Protocol, the Paris Agreement does not require specific emissions reduction from each country. Instead, Art. 4.9 requires each nation to issue an NDC every five years, and Art. 4.3 demands that each new NDC “will represent a progression beyond” the country’s previous commitment. (NDCs are also supposed to represent each country’s “highest possible ambition”—which raises the question whether countries might overpromise and get stuck with an unattainable goal. Then again, overly ambitious goals have not historically been a problem for the UNFCCC.)

Nearly all UNFCCC parties submitted Intended NDCs (“INDCs”) prior to the Paris negotiations, so we already have an idea of what NDCs will look like. The first impression is that they are too little, too late, but this is not news (which the head of the Secretariat made clear by threatening to “chop the head off” of any reporter that treated the INDCs’ shortcomings as new information). For our part, the U.S. INDC has promised a 26–28% reduction in greenhouse gas emissions by 2025 (measured against 2005 levels), which is roughly equivalent to the 32% reduction by 2030 that the White House says the Clean Power Plan will provide.

From Kyoto To Paris: How Bottom-Up Regulation Could Revitalize the UNFCCC

Luke Grunbaum

Luke Grunbaum is a 3L at UCLA School of Law, where he is Editor-in-Chief of the UCLA Journal of Environmental Law and Policy. This post is part of the Environmental Law Review Syndicate.

The United Nations Framework Convention on Climate Change (UNFCCC) establishes the basic principles and goals for future international agreements on climate change. However, incorporating the ambitious policies and provisions of the UNFCCC into a binding global agreement has proven incredibly challenging. Previous attempts to create a comprehensive international climate agreement (most notably the Kyoto Protocol) have been largely unsuccessful, and many believe that the top-down approach of prior eras must either be updated or completely abandoned. This article will briefly explain some of the inadequacies of prior top-down regimes, examine the shift towards a more bottom-up approach in UNFCCC negotiations, and elaborate on some of the strengths and weaknesses of this new approach.

The Inadequacies of Top-Down Regimes in the Context of Climate Change

Adopted in 1992, the UNFCCC is an incredibly ambitious international agreement that seeks to “achieve . . . stabilization of greenhouse gas concentrations . . . at a level that [will] prevent dangerous anthropogenic interference with the climate system.”[1] With over 150 signatories (Parties) by the time it went into effect in 1994, the UNFCCC has received remarkable acceptance within the international community and today it “has near universal membership.”[2] But despite its ambitious goals, the UNFCCC is essentially a guidance document; the treaty outlines objectives, principles, and general commitments, but is comparatively lacking in terms of implementation strategies and precise policy solutions.[3] Thus, although the UNFCCC has created a general consensus on core principles and objectives, it also leaves many important decisions and details unresolved.

Passed and adopted in December 1997, the Kyoto Protocol represents the first comprehensive agreement for the reduction of global greenhouse gas emissions under the UNFCCC framework.[4] However, despite strong initial support from the international community, the Kyoto Protocol ultimately failed to induce significant emission reductions on a global scale.[5] And while the relative failure of the Kyoto Protocol is often attributed to a variety of factors, one of the Protocol’s most significant flaws was its failure to promote participation by all UNFCCC parties.[6]

The lack of comprehensive participation under the Kyoto Protocol is largely a byproduct of the agreement itself. By its explicit terms, the Kyoto Protocol only requires emission reductions from thirty-three countries during the first period of Kyoto commitments (2005-2012). Additionally, the emissions reductions required under subsequent Kyoto periods (2012-2020) have yet to enter into force due to insufficient ratification by member Parties.[7] So while it is true that the Kyoto Protocol encourages all parties (including developing countries) to adopt emission reduction targets, the agreement ultimately failed to obtain emission reduction commitments from the some of the world’s largest greenhouse gas emitters, including the United States, China, Brazil, India, South Africa and various other countries. As a result, the Kyoto Protocol has failed to provide a truly comprehensive and effective solution to this increasingly pressing issue.

INDCs: A Bottom-Up Approach Under the UNFCCC

Citing the failure of the Kyoto Protocol and the international community’s subsequent inability to reach a successive agreement, some experts have called for a fundamental overhaul of the global climate change debate. Various sources suggest that the traditional top-down approach[8] as exemplified in the Kyoto Protocol might not be the best strategy for addressing global climate change today.[9] Instead, many believe that to stand any chance of global acceptance in the near term, future climate change agreements must be significantly more flexible and provide all Parties with the opportunity to pursue those strategies and solutions that best accommodate their unique interests and priorities.[10]

Indeed, even the UNFCCC acknowledges the limitations of a traditional top-down approach in the context of climate change. At COP17 in 2011, UNFCCC Parties created the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), an organization responsible for “[developing] a protocol, another legal instrument or an agreed outcome with legal force under the [UNFCCC] applicable to all Parties” that will be adopted “no later than 2015.”[11] And while the desire to replace the Kyoto Protocol is not surprising, some of the main features of this new agreement signify a paradigm shift in global climate change negotiations.

To ensure an agreement is reached by 2015, the ADP devised a radical new method that attempts to encourage greater levels of participation by all UNFCCC Parties. Rather than relying upon a more formalistic top-down approach as used in the Kyoto Protocol, the ADP has asked all member Parties to create voluntary emission reduction targets that are not only achievable, but also reflect the basic policies and priorities of the UNFCCC.[12] Known as Intended Nationally Determined Contributions (INDCs), these proposals require parties to “outline national efforts towards low emissions and climate resilient development,” and identify specific policies and practices that will enable the country to reach its intended targets. [13] Moreover, there is no standard definition of what should be included in INDCs, a feature that allows Parties to formulate creative adaptation and mitigation strategies that take full advantage of their unique institutional capacities.

Strengths and Weaknesses of INDC Approach

The ADP’s new bottom-up INDC approach is noteworthy in that it is entirely voluntary; INDCs afford each Party the opportunity to set emission reduction targets independently and without regard to the efforts of other Parties. And because INDCs are completely discretionary, these commitments are likely to accurately reflect each Party’s inclination and ability to undertake climate policies in the near future. In fact, the ADP hopes that these INDCs will play an integral role in future climate change negotiations and serve as the starting point for any agreement coming out of the negotiations in Paris this year.[14]

Moreover, there are at least two reasons why this bottom-up approach may be a preferable alternative to a more legalistic top-down approach at the present time. First, INDCs offer substantial flexibility when it comes to setting emissions reductions targets and implementing policies to achieve this goal.[15] This flexibility allows the Parties to prioritize their efforts based upon their own unique economic, political, and geographic considerations and ensures that all Parties begin the transition towards a low-carbon economy at their own pace and in a cost-efficient and predictable manner.

A second important feature of the INDC system is that it poses relatively little threat to the sovereignty of individual nations. Because INDCs are not legally binding commitments, the INDC program is a far more attractive alternative for those countries that are most wary of international meddling in domestic affairs. Indeed, both the United States and China – two countries that have up until this point refused to commit to any emission reductions in formal international agreements – have submitted INDCs under the Durban platform.[16]

Yet despite its potential benefits, the INDC model cannot be considered a perfect solution since it will ultimately fail to achieve all of the ambitious policies and objectives outlined in the UNFCCC. Perhaps the biggest issue with the INDC approach is that despite widespread participation by UNFCC Parties, the current set of INDCs fail to achieve the emission reductions needed to keep climate change at manageable levels. Under the 2010 Cancun Agreements, UNFCCC Parties acknowledged that one of the main objectives of any future UNFCCC agreement should be to keep global average temperature increases below two degrees Celsius.[17] According the UNFCCC’s own estimates, however, the current INDC pledges (assuming the Parties achieve their stated goals) will only limit projected warming to 2.7 degrees Celsius (4.9 °F) – and that projection includes fairly generous assumptions regarding the post-2050 actions of UNFCCC Parties.[18]

A second potential issue with the INDC method is that it completely overlooks several key issues that have traditionally prevented the formation of a truly comprehensive climate change agreement under the UNFCCC. The UNFCCC explicitly acknowledges that developed countries are primarily responsible for the steady increase in greenhouse gas concentrations over the previous centuries, and as such, these developed countries must play a leading role in addressing climate change.[19] But despite its inherent logic, this notion of “common but differentiated responsibilities” has been notoriously difficult to operationalize within the framework of a global agreement.[20] INDCs do very little to address this contentious issue since their non-binding and unilateral nature fails to ensure that developed countries bear a disproportionate share of emission reductions and provide sufficient funding to aid in the global transition towards a low-carbon economy. Therefore, since these INDCs will serve as the foundation for future negotiations, it can be argued that the inward-looking INDC model will ultimately prevent the resolution of certain controversial issues in the near future.

Conclusion

The INDC system represents a novel solution to the previously intractable issue of global climate change. This bottom-up approach has already received unprecedented support from the international community, with over 147 Parties (75% of all UNFCCC Parties) having submitted INDCs as of October 1, 2015. Unlike prior agreements under the UNFCCC such as the Kyoto Protocol, the INDC system currently covers “approximately 85% of global greenhouse gas emissions in 2010,” including all of the top ten largest emitters.[21] But even though the INDC process is largely responsible for enhancing the scope and pace of global negotiations, we must bear in mind that this approach is not the final solution to this incredibly complicated issue. Nonetheless, it appears that the INDC system has been a success in terms of increasing participation from all Parties, and there is hope that these proposals will form a strong foundation for an agreement coming out of Paris this December.

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[1] United Nations Framework Convention on Climate Change, Article 2, May 29, 1992, U.N. Doc. A/AC.237/18 (1992), available at http://unfccc.int/files/essential_background/
convention/background/application/pdf/convention_text_with_annexes_english_for_posting.pdf) [henceforth referred to as “UNFCCC”].

[2] UNFCCC, “First steps to a safer future: Introducing The United Nations Framework Convention on Climate Change,” available at: http://unfccc.int/essential_background
/convention/items/6036.php.

[3] UNFCCC, supra note 1.

[4] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998) (entered into force Feb. 15, 2005) [hereinafter Kyoto Protocol]. See also Andrew Long, Global Integrationist Multimodality: Global Environmental Governance and Fourth Generation Environmental Law, 21 J. Envtl. & Sustainability L. 169, 183 (2015).

[5] See e.g., Jonathan Zasloff, Choose the Best Answer: Organizing Climate Change Negotiation in the Obama Administration, 103 Nw. U. L. Rev. Colloquy 330, 332 (2009) (“The Kyoto Protocol’s failure to achieve emissions reductions from the major greenhouse gas emitters suggests the need for new approaches.”); Lakshman Guruswamy, Climate Change: The Next Dimension, 9 J. Transnat’l L. & Pol’y 341, 367 (2000) (“Current efforts to include developing countries within the emission reducing framework of the Kyoto Protocol have proven unsuccessful. By any analysis, portentous implications arise from the present diplomatic deadlock with regard to the cooperation of developing countries and the rising concentrations of GHGs.”).

[6] See, e.g., Jacquelynn Kittel, The Global “Disappearing Act”: How Island States Can Maintain Statehood in the Face of Disappearing Territory, 2014 Mich. St. L. Rev. 1207, 1218 (2014) (noting that the Kyoto Protocol “has been largely unsuccessful in reducing global greenhouse gas emissions” because over 100 nations, including some of the highest emitters such as the United States and China, are exempt from emission limits under the Protocol).

[7] United Nations Climate Change Secretariat, “Frequently asked questions relating to the Doha Amendment to the Kyoto Protocol,” available at https://unfccc.int/files/
kyoto_protocol/doha_amendment/application/pdf/frequently_asked_questions_doha_amendment_to_the_kp.pdf.

[8] The term “top-down” is defined as “of or relating to a hierarchical structure or process that progresses from a large, basic unit to smaller, detailed subunits.” American Heritage Dictionary of the English Language (5th Ed., 2011).

[9] David A. Wirth, The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?, 39 Harv. Envtl. L. Rev. 515, 521 (2015) (“The first, and to date only, protocol to the [UNFCCC] is the Kyoto Protocol . . . which specifies quantitative emission reductions . . . by thirty-three enumerated industrialized countries . . . [but] no new emission-reduction commitments for [other] Parties.”); Cinnamon P. Carlarne, Rethinking A Failing Framework: Adaptation and Institutional Rebirth for the Global Climate Change Regime, 25 Geo. Int’l Envtl. L. Rev. 1, 2-3 (2012) (“The conventional wisdom that we need one, consensus-based, comprehensive treaty is wrong or – more accurately – woefully incomplete. . . . [T]he optimistic vision of this top-down system as a great enabling device is no longer viable.”); William Boyd, Climate Change, Fragmentation, and the Challenges of Global Environmental Law: Elements of a Post-Copenhagen Assemblage, 32 U. Pa. J. Int’l L. 457, 457 (2010) (“The 2009 United Nations climate conference in Copenhagen has been widely viewed as a failure – a referendum in the eyes of many on the top-down, comprehensive approach to climate embodied in the Kyoto Protocol and carried forward in efforts to negotiate a successor regime.”).

[10] Carlarne, supra note 9 at 2-3 (“[T]he valiant efforts of the global community to negotiate a post-Kyoto treaty system have arrived at a crossroads and . . . instead of focusing on the finding the “right” pathway forward, there is a need to pursue multiple pathways. . . . We need a multilateral framework to respond to climate change and establish a global mitigation strategy.”).

[11] Report of the Conference of the Parties on its seventeenth session (2011), available at: http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf).

[12] The ADP first established this voluntary emissions reduction framework at COP19 in 2013. For more information about this important meeting of the Parties, see “Warsaw Outcomes” (available at: http://unfccc.int/key_steps/warsaw_outcomes/items/8006.php.)

[13] Synthesis Report on the Aggregate Effect of Intended Nationally Determined Contributions (INDCs) (available at: http://unfccc.int/files/focus/indc_portal/application
/pdf/synthesis_report_-_overview.pdf) [henceforth referred to at “INDC Synthesis Report”]. For more information about INDCs and their significance for future climate change agreements, see World Resources Institute, “What is an INDC?,” (available at: http://www.wri.org/indc-definition).

[14] INDC Synthesis Report, supra note 13 (“Parties have submitted their INDCs with the understanding that they would be anchored in a broader new climate agreement that would support sustainable actions nationally and globally.”).

[15] Further Advancing the Durban Platform, Dec. 1/CP.19, U.N. Doc. FCCC/CP/2013/10/Add.1, at 3, para. 2(b) (Jan. 31, 2014).

[16] Mark Landler, U.S. and China Reach Climate Accord After Months of Talks, NY Times, Nov.11, 2014, http://www.nytimes.com/2014/11/12/world/asia/china-us-xi-obama-apec.html. To view copies of the INDCs that have already been submitted, visit the UNFCCC “Submitted INDCs” portal at http://www4.unfccc.int/submissions/indc/Submission
%20Pages/submissions.asp.

[17] UNFCCC, “The Cancun Agreements: An Assessment by the Executive secretary of the United nations Framework Convention on Climate Change,” available at http://cancun
.unfccc.int/cancun-agreements/main-objectives-of-the-agreements/ - c33.

[18] INDC Synthesis Report, supra note 13.

[19] UNFCCC, supra note 1 (“Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries . . . in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions.”).

[20] See, e.g., Stathis N. Palassis, The IMOS Climate Change Challenge: Application of the Principle of Common But Differentiated Responsibilities and Respective Capabilities, 6 Wash. & Lee J. Energy, Climate, & Env’t 160, 164-71 (2014).

[21] INDC Synthesis Report, supra note 13.

Is CITES Endangered?

Liz Rasheed

Liz Rasheed is a 3L at New York University, where she is Submissions Editor for Environmental Law Journal. This post is part of the Environmental Law Review Syndicate.

Introduction: What is Illicit Wildlife Trafficking?

Illicit wildlife trafficking refers to “any environment-related crime that involves the illegal trade, smuggling, poaching, capture or collection of endangered species, protected wildlife (including animals and plants that are subject to harvest quotas and regulated by permits), derivatives or products thereof.”[1] Many species are targeted by specific international markets, while some are targeted by a multiplicity of markets. For example, tigers are sold live as exotic pets, yet skinned for rugs, while their bones are sold for “medicinal” uses in Asia.[2] Many reptiles and amphibians are commonly targeted for the exotic pet trade, as are primates and tropical birds.[3] Still others are being driven to extinction due to their perception as “fine cuisine” in certain markets.[4] Most notably, illicit animal-derived goods, such as ivory carvings, animal-skin rugs, and taxidermy mountings are seen as status symbols in many parts of the world, and the existence of a market for “canned hunting” of endangered animals on private game reserves makes it increasingly easy for illicit trafficking syndicates to launder illegally poached hides under the façade of legal hunts.[5]

The growth of e-commerce in the global marketplace has made facilitation of illegal transactions increasingly efficient for would-be consumers while protecting their anonymity, and has thus made effective prosecution increasingly difficult. The International Fund for Animal Welfare found in a recent study that the number of online advertisements for CITES Appendix I-listed species in China alone had increased by 279 percent in the past six years, jumping from 544 advertisements identified in 2008 to 2,106 in 2014.[6] Furthermore, the widespread use of social media seems to have facilitated new means of contact between buyers and sellers.[7]

The Berkeley Exchange: Celebrating Berkeley’s Contribution to Environmental Law Scholarship

The Berkeley Exchange: Celebrating Berkeley’s Contribution to Environmental Law Scholarship

Friday, February 7, 2014
Symposium 8am-5:30pm
All-Alumni Reception 6pm-8pm

[Download the Berkeley Exchange event flyer]

On Friday, February 7^th, Berkeley Law’s Ecology Law Quarterly and Center for Law, Energy, and the Environment are proud to host their symposium, The Berkeley Exchange: Celebrating Berkeley’s Contribution to Environmental Law Scholarship. This academic symposium will feature Berkeley Law alumni discussing their latest research, followed by an evening reception.

Symposium
Warren Room, UC Berkeley School of Law

8:00 a.m.        Breakfast

8:30 a.m.        Welcome Remarks
                         Dean Gillian Lester, UC Berkeley School of Law
                         Holly Doremus, UC Berkeley School of Law

9:15 a.m.        Panel 1: Evaluating International Environmental Goals and Progress
                         Daniel Farber, UC Berkeley School of Law (Moderator)
                         Cinnamon Carlarne, Moritz College of Law, The Ohio State University
                         Anastasia Telesetsky, Idaho Law School
                         Tse-Ming Yang, Santa Clara Law School

10:45 a.m.      Break

11:15 a.m.      Panel 2: Putting Environmental Justice at the Center of Environmental Law
                         Michelle Anderson, UC Berkeley School of Law (Moderator)
                         Maxine Burkett, William S. Richardson School of Law
                         Tony LoPresti
                         Alan Ramo, Golden Gate University School of Law

12:45 p.m.      Lunch
                         Marc Mihaly, Vermont Law School

2:15 p.m.        Panel 3: Environmental Law in an Interdisciplinary Context
                         Eric Biber, UC Berkeley School of Law (Moderator)
                         Dave Owen, Maine Law School
                         Jessica Owley, SUNY Buffalo Law School
                         Ryan Kelly, University of Washington, School of Marine and Environmental Affairs
                         Melissa Scanlan, Vermont Law School

3:45 p.m.        Break

4:00 p.m.        Panel 4: Energy and Climate Change
                         Bruce Huber, University of Notre Dame Law School
                         Steve Ferrey, Suffolk University Law School
                         Tim Duane, University of San Diego School of Law

6:00 p.m.        Reception
                         Steinhart Courtyard, UC Berkeley School of Law

We invite all Berkeley Law and ELQ alumni to join us for a celebration and reunion after the close of the symposium. Even if you cannot attend the symposium, we invite you to join us. 

Register
Symposium registration is free. Reception by donation. To register for the symposium or reception, please click here and fill out the form.

Location
UC Berkeley School of Law
215 Boalt Hall
Berkeley, CA 94720
(510) 642-1741

Contact
Questions? Comments? Please contact Symposium Co-Director Patrick Metz at [email protected].

China’s Regulatory Response to the Looming Energy Crisis

                                                                   Yuwa Wei*                                                    

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When a country with a substantial population steers into an era of industrialization and urbanization, disequilibrium between energy demand and supply can become acute. Without intervention, the disequilibrium can trigger serious energy concerns. Today, China is at such a crossroads, experiencing bottlenecks in both technology innovation and effective legal regimes to regulate the industry.[1] At the turn of the millennium, many Chinese economists and academics began warning that China had lacked an energy planning and security strategy.[2] Today, researchers understand that a coordinated energy strategy is crucial to China’s development and security.[3] Some Chinese commentators have even asserted that an energy crisis could be the single greatest danger facing the nation, even more critical than a financial crisis.[4] In such an important era for China’s economic development, securing access to affordable, reliable, and clean energy is vital.[5]

Photo credit to SpecialKRB.

Student Review of Selected Panels at the 2012 Water Law Symposium "Water and Growth: The Imperative for Sustainable Approaches to Uncertainty"

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Click here for videos of all sessions or on each session for its video.

All review authors attended the 2012 Water Law Symposium hosted at the University of California, Berkeley, School of Law on January 21, 2012. The panel reviews are based on their own observations and reflections. No citations should be attributed directly to the panelists themselves.

Aviation and Emissions Trading in the European Union: Pie in the Sky or Compatible with International Law?

Stephanie Switzer*

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In 2003, the then European Community[1] adopted Directive 2003/87/EC, establishing a scheme for trading allowances of greenhouse gas (GHG) emissions.[2] Directive 2003/87/EC mandated the establishment of an emissions trading scheme (ETS) within the European Community “to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.”[3] The preamble to Directive 2003/87/EC states that the establishment of such a scheme would contribute to the achievement of the European Community’s and its Member States’ commitments under the Kyoto Protocol.[4] In this regard, the Protocol is a mechanism enacted by the United Nations Framework Convention on Climate Change[5] to promote reductions in emissions associated with climate change. The Protocol entered into force in 2005 and requires participating Annex 1 countries—in effect, developed countries—to reduce certain GHG emissions by 2012 to at least 5 percent below 1990 levels.[6] The European Union pledged to reduce greenhouse gas emissions listed in Annex A of the Kyoto Protocol to 8 percent below 1990 levels in the period 2008 to 2012.[7]

Photo credit to shyb.

Because of the European Union’s emissions reduction pledge, the ETS is considered “a cornerstone of European policy on climate change”[8] and is the world’s largest such scheme.[9] The ETS did not initially include emissions from aviation activities; however the omission of aviation activities from the ETS eventually came to an end on January 1, 2012 when Directive 2008/101/EC, which amended Directive 2003/87/EC,[10] entered into force.[11].The extension of the ETS to aviation emissions requires aviation operators to surrender emission allowances equivalent to the total number of emissions produced the preceding year, and applies penalties to operators who do not comply with this obligation.[12] Initially, 85 percent of emission allowances will be distributed freely with the remaining 15 percent auctioned, with a reserve fund of allowances being made available to new market entrants.[13]

7th Annual EJ Symposium — Hungry for Justice: Growing an Equitable Food System

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Lessons Already Learned: An Analysis of Waxman-Markey under Current WTO Case Law

Gregory E. Wannier*

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Introduction

In 2009, the House of Representatives, responding to rising concerns over anthropogenic contributions to climate change, passed the first major piece of climate legislation in U.S. history.[1] This bill, the “American Clean Energy and Security Act of 2009” (ACESA), would cap U.S. carbon emissions and establish a national carbon market where regulated parties trade carbon dioxide emissions rights.[2] However, because many in the developed world fear that carbon markets will hurt domestic industries and lead to job losses and “leakage” of carbon emissions to less-regulated markets in the developing world,[3] ACESA imposes severe quality controls on the importation of energy-intensive manufactured goods that face the highest prospective carbon reduction costs.[4] This provision could dramatically affect trade, and thus could be challenged under the World Trade Organization (WTO), an intriguing possibility given the WTO’s controversial status in the trade community.[5]

 
International shipping containers at the Port of Oakland, Oakland, California.  Photo courtesy of Nell Green Nylen.
 

This Article takes ACESA through a theoretical WTO review, ultimately finding that ACESA would probably pass WTO review with some modifications. WTO consideration of ACESA could serve as an indication of how future unilateral action can be effectively and legally taken. However, the lesson from this analysis goes further; WTO retains the ability to overturn environmental protections, and its decisions are respected (if not always appreciated or adhered to) by the international community. As countries negotiate a balance between economic fears in the developed world and economic growth in the developing world, they may find that norms established and enforced by the WTO provide useful insights.

Student Review of Selected Panels at the Berkeley Law 2010 Environmental Justice Symposium

Kara Cook, Maria Stamas, and Meredith Wilensky*

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The Role of the Environmental Justice Lawyer

PANELISTS:

Kara Brodfehrer, Attorney, California Rural Legal Assistance, Inc.;
Alegria De La Cruz, Directing Attorney, Center on Race, Poverty, and the Environment;
Helen Kang, Director, Golden Gate University, Environmental Law and Justice Clinic;
Phoebe Seaton, Attorney, California Rural Legal Assistance, Inc.

The forum discussion on February 16, entitled “The Environmental Justice Movement: History & Skills Every Lawyer Should Know,” was a great kick off to the Sixth Annual Environmental Justice Symposium. For aspiring lawyers with very little experience or background in Environmental Justice (EJ) this introductory forum was the perfect place to learn more about the movement. The forum explored the EJ attorney’s role as an advocate.

Spreading the Water Wealth: Making Water Infrastructure Work for the Poor*

Patrick McCully and Lori Pottinger **

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Want of clean water, decent sanitation, and adequate food and energy strips people of their dignity and their most basic rights. Inequitable access to water, especially for growing crops, is a major factor in global poverty and a death sentence for millions each year.

According to the World Bank, “[t]he ‘easy and cheap’ options for mobilizing water resources for human needs have mostly been exploited.”[1] If the World Bank were right, this would be a depressing message for the 1.1 billion people without easy access to safe water.[2] The good news is, the Bank is wrong. Many technologically easy and relatively cheap options for water provision exist that can help lift hundreds of millions of people out of poverty, end widespread hunger, and reduce the daily workload of women and children. The bad news is that the World Bank-led large-dam lobby is aggressively supporting a resurgence in water mega-projects.[3]

China's Environment After the Olympics

Lo Sze Ping *

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I. Introduction

China’s economy is the fastest growing in the world. Official Chinese government figures, from the National Bureau of Statistics, indicate that China’s economy grew 11.9 percent in 2007, the fastest rate of growth in more than a decade.[1] However, nearly thirty years of rapid economic growth coupled with a “pollute first, clean up later” mentality has devastated China’s environment.

As a nation of over 1.3 billion people, China faces some of the world’s greatest environmental challenges. Some 400 cities in China face severe water shortages,[2] and seventy percent of China’s rivers are polluted.[3] As one of the world’s largest green house gas (GHG) emitters, China was responsible for an estimated 6,200 million tons of carbon dioxide (CO2) in 2006 from fossil fuel combustion and cement production alone.[4] That represents a nine percent emissions increase over the previous year,[5] and is primarily due to the country’s reliance on coal as its main energy source.[6] As a result, pollution levels in Chinese cities often pose an enormous health risk to citizens. Because of China’s position as a developing nation with growing energy and resource needs, few nations have a more important role to play in making the urgent transition to sustainable development.

Building Energy Efficiency in China

Ruidong Jin and Fan Rui *

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I. Yesterday: Was Building Energy Efficiency Needed in China?

This was the question asked by Natural Resources Defense Council (NRDC) when we first entered China early in 1998. To our surprise, we found few people interested in energy efficient buildings. In contrast with the aggressive energy standards for buildings in the United States, few Chinese provisions expressly pertained to energy efficiency in its numerous building codes and standards. At that time, the whole country had only one national building standard dealing with energy savings, which covered only residential buildings in the northern zone and was poorly implemented in any case.[1]

The lack of concern about energy use was endemic, apparent not only in the building sector, but also in most of China’s industrial sectors. The only good news was that a few innovators within the Ministry of Construction were able to create and promote a few efficient building pilot projects in Beijing and Tianjin, but none of these projects were successful enough to bring policy makers’ and the public’s attention to the need for energy efficient buildings.[2]

Consequently, our first question was answered rather quickly: China’s buildings were inefficient and little progress was being made to change this. From here, we began to ask another question: how can we develop sufficient support in China for building energy efficiency programs?

Enhancing China’s Environmental Governance: Challenges and Opportunities

Fuqiang Yang and Min Hu *

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Introduction

China’s economic and social development has had severe environmental impacts: from land and water resource deterioration to becoming the world’s largest greenhouse gas emitter, pollution has resulted in total losses equivalent to 3.05 percent of China’s Gross Domestic Product (GDP).[1]

Under a strategic plan to pursue a sustainable development path, China has passed a plethora of environmental laws, standards, and regulations in recent years, and adopted ambitious targets aiming at reducing major pollutants by ten percent and improving GDP energy efficiency by twenty percent in its Eleventh Five Year Plan (2006-2010).[2] These ambitious goals were set despite clear evidence that China’s environmental governance system has struggled with enforcement, especially at the local level. Due to a lack of enforcement, less than one percent of China’s urban residents live in cities that meet World Health Organization air quality standards.[3] Failure to enforce environmental regulations has also contributed to rapid motorization and the growth of polluting and energy-intensive industries, undermining GHG mitigation achievements made in other countries of the world.

A breakthrough in dealing with the problems of China’s high speed growth occurred in March 2008. In recognition of the economic and humanitarian need to improve environmental governance, the National People’s Congress upgraded the vice-cabinet level State Environmental Protection Administration (SEPA) to the cabinet level Ministry of Environmental Protection (MEP).[4] This promotion establishes a basis for building environmental governance capacity through increasing staffing and budgets; increases attention paid to environmental and energy policy integration at all levels of government; and continues efforts to internalize the economic impacts on human health and environmental externalities caused by traditional fuels combustion. This paper discusses institutions which are responsible for environmental governance in China and opportunities to restructure these institutions to integrate environmental concerns into China’s national policy-making process and increase enforcement and compliance.