The Future of the Paris Agreement
Daniel BodanskySandra Day O’Connor College of Law
Arizona State University
HKUST Business School CentralMay 14, 2018
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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
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• 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)
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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
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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
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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
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Climate Efforts Beyond the UNFCCC:Other international institutions
• IMO
• ICAO
• Montreal Protocol
• LRTAP (black carbon)
• UN Security Council
• G-8
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Intersections with Other Areas of International Law
• Migration/refugee law
• Human rights law
• Trade law
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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
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What Is the Paris Paradigm?
• Hybrid structure
• Procedural orientation
• Cycle of contributions / ratchet mechanism
– Goal: To produce higher ambition over time
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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
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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
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Copenhagen
Bottom-up pledges
Few rules
Paris ParadigmGoldilocks Solution
National Flexibility
International Rules
Bottom-Up Hybrid Top-Down
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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
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• 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
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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?
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Source: UNEP Gap Report 2017
Future of Paris Agreement
Emissions Gap
Will Ratchet Mechanism Work?
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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
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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)
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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
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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
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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
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• 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
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Trump Administration:
Trump Administration:Defunding …
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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
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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
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Trump AdministrationFederal Policies
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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
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Transportation Now the Biggest Chunk of US Emissions
Trump Administration:Limits on States
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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
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America’s Pledge
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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
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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
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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
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