Vermont Law Top 10 Environmental Watch List 2017

Après Paris: Implementing the Paris Agreement in Uncertain Times

As the global community moves forward with climate change mitigation and adaptation, questions remain over what role the United States will play.

When the Paris Agreement was gaveled into being on Dec. 12, 2015, everyone in the room anticipated it coming into force in 2020, as the Kyoto Protocol’s second commitment period ends. While the United Nations Framework Convention on Climate Change (UNFCCC) was ratified in only two years, its Kyoto Protocol had taken a full eight years to move from adoption in 1997 to entry into force in 2005. The fact that sufficient countries ratified the Paris Agreement in only 11 months thus surprised—and inspired. In September, the International Civil Aviation Organization (ICAO) announced new market-based standards to reduce global airline emissions. In October, the Montreal Protocol parties adopted the Kigali Amendment to phase out HFCs. By Nov. 7, 2016, when the UNFCCC parties gathered for the start of COP22, this trifecta of multilateral environmental agreements had positioned the world community to take a big step forward on climate change mitigation and adaptation.

cop22COP22’s goal was relatively simple: translate 2016’s political will—the “spirit of Paris”—into the rules needed to implement the Agreement. Action was needed on four core pieces of treaty architecture: 1) a temperature rise limit of “well below” 2⁰C; 2) nationally determined contributions (NDCs) on mitigation, adaptation, and other means of implementation renewed every five years; 3) transparent reporting and verification of them; and 4) a periodic “stocktake” to assess collective progress on meeting the 2⁰C goal and influence the next round of NDCs. This last facet is essential to a “bottom up” system of self-defined contributions; the reported mitigation emissions gap resulting from pre-Paris intended NDCs shows that nationally determined pledges can fall short when added up together.

The COP22 decisions document the implementation actions taken, largely in the form of work plans and deadlines for them. Most important is a 2018 deadline for completing these operational rules by COP24, with a 2017 review at COP23 to stay on track. These rules will spell out the strategically important new market mechanisms under Article 6, transparency framework under Article 13, and accounting methods for land-based carbon sinks under Articles 4 and 5, as well as the specifics of NDC features and timelines. COP22 also addressed the climate financing needed to put the Paris Agreement into practice by deciding that the Adaptation Fund established, under the Kyoto Protocol, will continue under the Agreement.

But two potent political forces shaped what would seem to be the apolitical “nuts and bolts” implementation orientation of COP22. The first is the long-simmering question of how to recalibrate the core principle of “common but differentiated responsibilities and respective capacities” (CBDRRC) when implementing this new system of mandating all countries to make nationally determined contributions. CBDRRC is the means by which UNFCCC parties allocate equity in multilateral climate change treaty commitments, accounting for historical responsibility for global warming as well as differing current national capacities to mitigate and adapt. The principle took its early form in the Protocol’s firm line on mitigation responsibilities: developed countries, like the European Union and the United States (called Annex 1 countries), had them as historical polluters, and developing countries, like China, India, and Brazil, did not. The Paris Agreement profoundly alters this interpretation of CBDRRC, by requiring all countries to make NDCs and publicly report progress on these self-defined pledges over time. At COP22, developing and developed countries negotiated hard on how their respective NDCs could differ, whether in terms of content or timing or a combination of both. This debate will continue through 2018 as parties hammer out these rules.

The second was the election of Donald Trump as president of the United States, which occurred midway during the first week of COP22. A core staple of Trump’s stump speech was “canceling” the Paris Agreement. Although the United States, as one party among almost 200, cannot do so per se, it can readily undermine the Paris Agreement’s effectiveness by withdrawing from it or the UNFCCC, or by remaining a party but doing little to comply, let alone lead. This cloud of uncertainty sat over COP22, even while the U.S. delegation continued to represent the Obama Administration’s priorities and speakers from U.S. Secretary of State John Kerry to French President Francois Hollande underscored that energy markets, consumer behavior, as well as governmental policies had already embraced the Paris Agreement’s low carbon and resilient development mantra. Nonetheless, as countries continued the work of writing the COP22 decision to guide implementation of the Paris Agreement, uncertainty about leadership remained.

That’s why the dynamics of COP22’s closing plenary stand out. COPs have earned a reputation for last-minute delays, with pauses for “huddles” on the floor to work through conflicts and impassioned statements of disagreement with the consensus required for adoption. COP22’s closing got stuck on exactly how and when the Paris Agreement’s rules would come into play. Some developing countries allied themselves with the Like Minded Developing Countries (LMDCs) to speak through Bolivia to oppose compromises made in the COP22 decision. Historically, the LMDC group has counted India as a core member, with China joining on some issues and other developing countries, acting through the G77+China and Africa Group negotiating groups, associating themselves with positions taken by the LMDCs. But since their formative actions at COP15, the BASIC negotiation group—composed of rapidly industrializing developing countries like Brazil, South Africa (Afrique de Sud), India, and China—has shown just how fluid membership in these groups can be, as the stakes shift in multilateral climate change negotiations. It was BASIC countries who were in the room with first-term President Obama and Secretary of State Clinton to craft the Copenhagen Accord, which set the UNFCCC parties en route to the Paris Agreement’s nationally determined orientation. Likewise, it is with individual BASIC members that the Obama Administration has worked bilaterally on climate change, resulting in the U.S.-China announcement in November 2014, the U.S.-India announcement in January 2015, and the U.S.-Brazil announcement in June 2015. When Brazil took the floor to directly counter Bolivia, and then spearheaded top negotiators from China, India, and South Africa to huddle with the Bolivian leader as the COP22 president gaveled the plenary’s closure, it looked as if BASIC had again found a way to keep multilateral climate change actions viable.

Nine years ago, a negotiator from Papua New Guinea gained international headlines when he quietly challenged the U.S. delegation at the closing plenary of Bali, Indonesia’s COP13: “I would ask the United States, we ask for your leadership. But if for some reason you’re not willing to lead, leave it to the rest of us. Please get out of the way.” When Jonathan Pershing, U.S. special envoy on climate change, gave his closing statement at COP22, he received warm applause for his—and his delegation’s—role in the climate change treaty since COP15. BASIC’s leadership in closing the deal at COP22 had been critical and the U.S.’s role in supporting this leadership had not gone unnoticed. It remains to be seen how the U.S. will participate in the Paris Agreement during the next four years. But if the political dynamics of COP22’s closing plenary hold true, multilateralism will continue on climate change under this new guard of leadership, with or without U.S. support.