The Future of the Paris Agreement

Daniel BodanskySandra Day O’Connor College of Law

Arizona State University

HKUST Business School CentralMay 14, 2018

5/14/2018 Future of Paris Agreement 1

Overview

• Overview of International Climate Change Law

• Future of Paris Agreement

– What is the Paris paradigm?

– What were the problems coming out of Paris?

– How has the context changed since then?

– What are the challenges going forward?

• US situation

5/14/2018 Future of Paris Agreement 2

• UN climate regime– UNFCCC, Kyoto, Paris

• Locating climate change law within public international law

• Efforts beyond the UNFCCC

• Intersections with other areas of IL

International Climate Change Law (Oxford

University Press 2017)

5/14/2018 Future of Paris Agreement 3

Three Perspectives on Climate Change

EnvironmentalPerspective

• Goal : limit temperature increase to < 2°/1.5°C

• Means: peaking emissions ASAP, rapid reductions, carbon neutrality in 2nd half of century

Economic perspective

• Goal: maximize benefits relative to costs• Means: cost-effectiveness policies --

market mechanisms, comprehensive approach

Ethical perspective

• Goal: equitable distribution of effort, costs• Means: differentiated obligations, L & D

5/14/2018 Future of Paris Agreement 4

History of the UN Climate Regime:A Play in Four Acts

Bottom-up Pledges

Transparency, Review

1992

Framework Convention (UNFCCC)

General system of

governance

1997

Kyoto Protocol

Negotiated, legally binding

emissions targets

20112009

Copenhagen Durban Platform

2015 2020

Paris

Act I1991-1994

Act II1995-2005

Act III2005-2012

Act IV2012-2015

5/14/2018 Future of Paris Agreement 5

Recurring ThemesTheme UNFCCC Kyoto Protocol Paris Agreement

Legal bindingness

Treaty, but not all provisions binding

Binding emissions targets

Treaty, but not all provisions binding

Top-down vs. bottom-up architecture

Largely bottom up

Emissions targets internationally negotiated

NDCs bottom up, but proceduralrules multilaterally negotiated

Differentiation Mixed: mitigationobligations common; transparency and financial obligations differentiated

Strict bifurcation:Annex I and non-Annex I

Tailored/nuanced: bifurcation of financial but not mitigation commitments

5/14/2018 Future of Paris Agreement 6

Climate Efforts Beyond the UNFCCC:Other international institutions

• IMO

• ICAO

• Montreal Protocol

• LRTAP (black carbon)

• UN Security Council

• G-8

5/14/2018 Future of Paris Agreement 7

Intersections with Other Areas of International Law

• Migration/refugee law

• Human rights law

• Trade law

5/14/2018 Future of Paris Agreement 8

Overview

• Overview of International Climate Change Law book

• Future of Paris Agreement

– What is the Paris paradigm?

– What were the challenges coming out of Paris?

– What are the challenges going forward?

• US situation

5/14/2018 Future of Paris Agreement 9

What Is the Paris Paradigm?

• Hybrid structure

• Procedural orientation

• Cycle of contributions / ratchet mechanism

– Goal: To produce higher ambition over time

5/14/2018 Future of Paris Agreement 10

Hybrid Approach

National Flexibility

Uniform International

Rules

Bottom-Up Hybrid Top-Down

Promote participation

Allow experimentation

Risk management > greater ambition

Promote transparency and

accountability

Promote reciprocity

5/14/2018 Future of Paris Agreement 11

Hybrid Approach

National Flexibility

Uniform International

Rules

Bottom-Up Hybrid Top-Down

UNFCCC

Pledge and review

Some differentiation; annex structure

Kyoto

Legally binding, internationally negotiated

targets

Total bifurcation; firewall

5/14/2018 Future of Paris Agreement 12

Copenhagen

Bottom-up pledges

Few rules

Paris ParadigmGoldilocks Solution

National Flexibility

International Rules

Bottom-Up Hybrid Top-Down

5/14/2018 Future of Paris Agreement 13

Nationally determined contributions, but with international rules to promote transparency and

accountability

Treaty, but not all provisions binding

Nuanced differentiation:Abandonment of annex structure; self-differentiation,

not bifurcation of mitigation commitmentsFinancial commitments bifurcated

Paris ParadigmProcedural Orientation

Future of Paris Agreement5/14/2018 14

• NDCs not legally binding

• Mostly procedural commitments to promote accountability and ambition – each party must:

– Communicate NDC every five years

– Provide ex ante information necessary to understand NDC

– Report biennially on progress

– Participate in technical expert review, peer review

– Revise NDC in light of global stocktake

Paris ParadigmCycle of Contributions to Ratchet-up Ambition

5/14/2018 Future of Paris Agreement 15

Nationally Determined Contribution

Ex ante information to

Promote Clarity, Transparency and

Understanding

National Implementation

ReportingIndividual

ReviewCollective

ReviewNDC

Inventories

Ex post Information (Inventories,

biennial reports

Technical Expert Review

Peer Review (FMCP)

Implementation and Compliance

Mechanism

Global Stocktake

Principles (PA Art. 4.3)• Progression• Highest Possible Ambition

Three Challenges Coming Out of Paris

• NDCs insufficiently ambitious

>> Emissions gap

• Model may not work

– Cycle of contributions may not produce greater ambition?

• Unstable

– Not a true meeting of the minds?

5/14/2018 Future of Paris Agreement 16

5/14/2018 17

Source: UNEP Gap Report 2017

Future of Paris Agreement

Emissions Gap

Will Ratchet Mechanism Work?

5/14/2018 Future of Paris Agreement 18

Talanoa Dialogue

IPCC 1.5 report

California Summit

Is Paris Paradigm Stable?Meeting of Minds?

• Paris moved in direction of developed country vision

– Mitigation provisions stronger than adaptation and finance provisions

– No bifurcation of mitigation commitments

• But lots of “constructive” ambiguity, which developing countries use to argue for their positions on differentiation, finance

5/14/2018 Future of Paris Agreement 19

Elaborating the Paris RulebookNDCs • Up-front information (art. 4.8)

• Features (1/CP.21, para. 26)

• Accounting: guidance by CMA(-1) (art. 4.13, 1/CP.21, para. 31)

Market mechanisms • Avoidance of double-counting (art. 6.2)

• Ensure share of proceeds for adaptation (art. 6.6)

• SDM: rules, procedures and modalities (art. 6.7)

Adaptation • Modalities to recognize efforts of DCs (art. 7.3)

Financial support • Accounting: modalities, procedures and guidelines (art. 9.7)

Capacity building • Institutional arrangements (art. 11.5)

Transparency • Emissions inventories methodologies (art. 13.7(a))

• Modalities, procedures and guidelines (art. 13.13)

Global stocktake • Sources of input and modalities (1/CP.21, paras. 100, 102)

Compliance • Modalities and procedures (art. 15.3)

5/14/2018 Future of Paris Agreement 20

Persistent Issues

• Legal bindingness

– Should Paris rulebook be legally binding?

• Top down vs. bottom up

– How detailed? How much left to national determination?

• Differentiation

– Attempts to reintroduce bifurcation

5/14/2018 Future of Paris Agreement 21

Challenges in Completing Paris Agreement Work Program

• Political

– Attempts to renegotiate Paris

– Issue linkage: concerns about finance

• Technical

– Complexity of issues

– Lack of understanding

• Procedural/mechanical

– Scheduling, drafting

5/14/2018 Future of Paris Agreement 22

Overview

• Overview of International Climate Change Law book

• Future of Paris Agreement

– What is the Paris paradigm?

– What were the problems coming out of Paris?

– How has the context changed since then?

– What are the challenges going forward

• US situation

5/14/2018 Future of Paris Agreement 23

• International

– Immediate loss of funding

– Longer-term prospect of withdrawal

– Engaged, but less ability to play leadership role

• Domestic

– Roll back of federal policies

– Potentially, limits on state policies

5/14/2018 Future of Paris Agreement 24

Trump Administration:

Trump Administration:Defunding …

5/14/2018 Future of Paris Agreement 25

Defunding of Green Climate Fund: $2 billion contribution

• International

– Immediate loss of funding

– Longer-term prospect of withdrawal

– Engaged, but less ability to play leadership role

• Domestic

– Roll back of federal policies

– Potentially, limits on state policies

Trump Administration:Withdrawal from Paris

5/14/2018 Future of Paris Agreement 26

US will follow withdrawal procedure in Paris Agreement: provide notice in 2019, effective in 2020

• International

– Immediate loss of funding

– Longer-term prospect of withdrawal

– Engaged, but less ability to play leadership role

• Domestic

– Roll back of federal policies

– Potentially, limits on state policies

Trump Administration:Potential Effects on International Process

• Negotiation of rules/guidelines

– US less of a counterweight to developing countries

• Ambition

– Existing NDCs: no sign of backtracking

– Next round of NDCs aimed at ratcheting up ambition

• No US leadership

• Reciprocity: reluctance by others to raise ambition, if US isn’t

• But city/state action in US helpful

5/14/2018 Future of Paris Agreement 27

Trump AdministrationFederal Policies

5/14/2018 Future of Paris Agreement 28

Trump has initiated action to roll back Obama Administration regulations: Clean Power Plan, automobile emission standards

Requires new regulatory rulemaking: laborious process, subject to court challenge

• International

– Immediate loss of funding

– Longer-term prospect of withdrawal

– Engaged, but less ability to play leadership role

• Domestic

– Roll back of federal policies

– Potentially, limits on state policies

5/14/2018 Future of Paris Agreement 29

Transportation Now the Biggest Chunk of US Emissions

Trump Administration:Limits on States

5/14/2018 Future of Paris Agreement 30

Revoke California’s waiver to set own auto emission standards

• International

– Immediate loss of funding

– Longer-term prospect of withdrawal

– Engaged, but less ability to play leadership role

• Domestic

– Roll back of federal policies

– Potentially, limits on state policies

Non-Federal Initiatives

• We Are Still In

• America’s Pledge

• US Climate Alliance

• Global Covenant of Mayors

5/14/2018 Future of Paris Agreement 31

5/14/2018 Future of Paris Agreement 32

America’s Pledge

5/14/2018 Future of Paris Agreement 33

America’s Pledge

State Actions

• California extended GHG emission reduction program thru 2030

• New Jersey, Virginia joining regional GHG trading scheme

• Some states have enacted subsidies for nuclear

• California and 16 other states suing EPA to block weakened vehicle standards

5/14/2018 Future of Paris Agreement 34

California Summit

• September 12-14, 2018

• Will bring together state and local leaders, business, scientists, environmental groups

• Goal: call to action to step up ambition

– Input to Talanoa Dialogue

5/14/2018 Future of Paris Agreement 35

The Future of the Paris Agreement

Dan BodanskySandra Day O’Connor College of Law

Arizona State University

HKUST Business School CentralMay 14, 2018

5/14/2018 Future of Paris Agreement 36

Some US funding continues both internationally and domestically

International Funding

5/14/2018 Future of Paris Agreement 37