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Examining the New Realities from the Copenhagen Accord

New York Law Journal

December 24, 2009

Representatives from 193 nations, the United Nations and several thousand non-governmental organizations (NGOs) descended on Copenhagen from Dec. 8-18, 2009, to try to agree on a coordinated international strategy to limit global climate change and help the most vulnerable nations adapt to its now inevitable impacts. I attended the second week of the conference—known as COP15[1]— as a Law Journal columnist and, informally, on behalf of the New York City Bar. (For my daily reports on the conference proceedings, see http://www.clm.com/publication.cfm/ID/262.)

Having attended the 1992 Rio Conference when the United Nations Framework Convention on Climate Change (UNFCCC) was first adopted, I was eager to see whether, after 17 more years of climate science, international negotiations, pressure from NGOs at home and abroad, and a more enlightened U.S. administration, the world was ready for effective long-term action on climate change. The answer at Copenhagen was: not yet, but almost.

As readers of this column know, there has been much to criticize in U.S. inaction on climate change, ranging from our bipartisan rejection of the Kyoto Protocol (“U.S. vs. The Marrakesh Accords: Standing Alone on Climate Change,” NYLJ, Jan. 4, 2002) to the Bush II Administration’s refusal to recognize either the science of climate change or the Environmental Protection Agency’s existing authority to regulate CO2 and other greenhouse gases (“The Supreme Court’s Greenhouse Gas Decision,” NYLJ, April 27, 2007) to the useful but still inadequate first congressional steps in the Waxman-Markey bill in the House of Representatives this past summer (“The Waxman-Markey Climate Change Bill,” NYLJ, June 15, 2009).

While the Obama administration moved, somewhat belatedly in my view, to use EPA’s regulatory authority in its December 2009 CO2 “endangerment finding” and has supported increased fuel and energy efficiency measures at both the state and federal level, the administration was severely limited in its approach to COP15 by the failure of the Senate to consider the Kerry-Boxer counterpart to the House’s Waxman-Markey bill before the Copenhagen meeting. As a result, the Obama administration was unable to act on demands from the European Union (EU), the UNFCCC secretariat and developing countries that it commit, in legally binding form, to significantly reduce its own greenhouse gas (GHG) emissions and to assist developing countries to adapt to the inevitable effects of climate change for which such countries bore little or no responsibility.

Rightly fearing another post-Kyoto backlash in the Senate if it agreed to GHG reductions by the United States without corresponding commitments from China, India, Brazil and other developing countries, the administration could offer only to seek such reductions (and abatement assistance) in future legislation and to demonstrate its own determination to chart a more inclusive and responsible effort than its predecessor. Since such assurances seemed unlikely to satisfy the UN, the EU, developing countries or the needs of the Earth’s ecosystem, Copenhagen had the clear potential for a lose-lose outcome—domestically and internationally—for the U.S. and the president.

Conference Discord

That is not what happened, and the Obama administration deserves considerable credit for avoiding a potential catastrophe at COP15. There were several reasons for this. First, the Chinese had injected their own element of controversy by objecting to any international efforts to verify their promised substantial reductions in per capita “emissions intensity” (as opposed to absolute GHG emissions). Since reliable “measurement, reporting and verification” (MRV) had become a mantra of the conference and a key demand of the Obama administration and its supporters in Congress, Chinese resistance to MRV became a major obstacle to any successful outcome.

Second, developing nations, particularly in Africa, demanded far greater attention to the need for adaptation to climate impacts on agriculture, water supplies, coastal flooding and migration. Absent significant resources committed to these needs, most African countries were threatening to leave the conference—and in fact suspended their participation for a full day during the crucial final week of negotiation. Ironically, most of their ire was directed at the EU, which the African group accused of trying to wiggle out of its existing abatement commitment under the Kyoto Protocol, under whose auspices the conference was also held.

Third, many developing countries, particularly the small island states, claimed (correctly in my view) that the conference goal of limiting global temperature rise to an average of 2 degrees Celsius above pre-industrial levels was simply not adequate and that a goal of a maximum increase of 1.5 degrees Celsius was required to protect existing ecosystems and human habitation. While this would be a highly desirable goal, it is clear that it will require exceptional political skill for the Obama administration, and likely the EU as well, to secure approval for even the currently proposed U.S. and EU emission reductions, which will not even assure a 2-degree increase, and that demands for more stringent controls would be counterproductive in the near term.

Fourth, the EU continued to push the U.S. to accelerate its 2020 emission reductions beyond the targets contained in the Waxman-Markey and Kerry-Boxer bills (GHG emissions of 17 percent below 2005 levels by 2020), despite its understanding that President Barack Obama could make no such commitment without risking a Kyoto-style backlash in the Senate, especially without comparable Chinese reductions that were out of the question.

Fifth, the “G77” group of developing countries, with strong support from China, stridently attacked the EU for attempting to supersede the Kyoto Protocol before a binding new agreement was ratified. That Protocol represents the only binding commitment of its Annex 1 countries (such as the EU, Canada and Japan) to extend financial benefits to developing countries, largely through its “clean development mechanisms.” Yet the need to bring the U.S., China and India into a new agreement that did not rely on Kyoto was essential both to put limits on GHG emissions from those countries and to secure U.S. commitments to help abate climate impacts in the developing world. This drafting challenge was never quite met by the conference sponsors and continued to generate friction throughout the proceedings.

Sixth and finally, virtually everyone was angry at the Danish government for something: the delegates, press and NGO representatives who waited in the cold for up to eight hours to enter the Bella Center on Monday; the NGO representatives who were largely banished on Thursday and Friday as the conference lurched toward its conclusion; the developing countries that felt their year-long participation in the drafting process was being largely ignored by the new three-page Accord mysteriously produced on the conference’s last day; and undoubtedly the U.S., which clearly felt that the drafting process had been mismanaged by the Danish chair of the conference, leaving President Obama and Premier Wen Jiabao of China to pick up the pieces with their start-from-scratch document that, after discussions with India, Brazil and South Africa, was simply presented to the 188 remaining countries on a “take it or leave it” basis that reinforced the demagogic rhetoric of Venezuela’s Hugo Chavez and the bitterness of many sincere spokesmen for the world’s poor.

Copenhagen Accord

The resulting Copenhagen Accord, which Secretary of State Hillary Rodham Clinton had previously said would be an “operational agreement” (as contrasted with a binding instrument), sought to capture the principal points of agreement among the United States, China and the three remaining leaders of the developing world, India, South Africa and Brazil (each of which had joined with the G77 in protesting the earlier Danish draft agreement). As finally approved, the three-page Accord (which appears at http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf) contains 12 paragraphs that call on the parties to:

1.   Limit the average global temperature increase to 2 degrees Celsius;

2. Cooperate in reaching and then reducing the peak point in global emissions as soon as possible, with Annex 1 countries specifying by Jan. 31, 2010, their precise economy-wide GHG emissions targets for 2020;

3.  Recognize that, while developing countries should also seek to limit future emissions, their first priorities are poverty eradication and social and economic development;

4.  In the case of developed countries, provide “adequate, predictable and sustainable” resources and technology to support adaptation and mitigation measures in developing countries, including support for reduced emissions from deforestation and forest degradation (so-called REDD Plus), through a collective commitment to provide approximately $30 billion for the 2010-12 period and, subject to “meaningful mitigation actions and transparency on implementation” by developing countries, an additional $100 billion annually for these purposes by 2020;

5.  Measure, report and verify emission reductions claimed by developed countries and those reduction measures receiving international support in developing countries, with the understanding that emission reductions undertaken voluntarily and without international support by non-Annex 1 countries (i.e., China) will be reported every two years through their normal national communications, “with provision for international consultations and analysis under clearly defined guidelines that will ensure that national sovereignty is respected” (this was the critical MRV compromise desired by the U.S. and China);

6.  Establish a “High Level Panel” to study potential revenue sources for the $100 billion annual payments promised by developed countries, a “Copenhagen Green Fund” to oversee the support projects qualifying for such assistance and a “Technology Mechanism” to help developing countries implement adaptation and mitigation plans; and

7.  Assess the overall implementation of the Accord by 2015, including possible reconsideration of a 1.5-degree Celsius temperature cap in view of then current scientific data.

This Accord hardly satisfied anyone since it required all parties to compromise, as Mr. Obama had insisted, on many key points and left out entirely some provisions that each of the parties had wanted, including a call by the EU and most developing countries for a final binding agreement by the Conference of the Parties scheduled for December, 2010 in Mexico City. This was, however, an important omission for the United States, since any commitment (even if non-binding) to conclude a full-scale treaty before the Senate had acted on the Kerry-Boxer bill might have cost enough Senate votes to make it impossible for the U.S. to agree to any emission reductions or adaptation aid in the near future.

It is not yet clear how the Copenhagen Accord will be carried forward, or by whom. It seems plain that much of the next round of negotiations will be carried out either bilaterally or among smaller groups of countries. The UNFCCC Secretariat is also likely to have a smaller role to play, at least initially, in cajoling the parties into agreement on the timing and extent of their respective emission reduction targets, the working of the Copenhagen Green Fund and transparency in reporting and verifying reductions by China and other major developing countries. However, there are important legal issues still to be resolved—including the future status of the Kyoto Protocol—for which the Secretariat is essential.

In addition, lost in the reporting was the fact that the conference actually did adopt a series of reports and recommendations from both its COP15 and Kyoto Protocol working groups that addressed, even if very generally, some of the topics summarized in the Accord. (For the text of these working group reports, see http://unfccc.int/2860.php.) These included procedures for the appropriate methodology for assessing reduced emissions from deforestation, for the form of national communications concerning emission reductions, and for systematic climate observations. It seems likely that the UNFCCC Secretariat will continue to take the lead in completing these reports prior to the 2010 COP in Mexico.

New Realities

On balance, the Copenhagen Accord, despite its precarious birth and lukewarm initial reception, reflects a number of important new realities:

(1)  The U.S. has displaced the EU as the leader of international climate change efforts;

(2)  China and the U.S. demonstrated their ability to work together, under difficult circumstances in a diplomatic fishbowl, to achieve pragmatic results satisfactory to each of them;

(3)  Brazil and, to a lesser extent, India and South Africa have emerged as important leaders of the developing world in its negotiations with the U.S. and EU over climate change and, possibly, other issues;

(4)  Climate change has assumed a central role in development planning for the world as a whole, with widespread recognition of the need for major countries not only to mitigate their own GHG emissions but to find the enormous resources, both public and private, necessary to help the most vulnerable countries in Africa and Asia adapt to the unavoidable impacts of drought, flooding, migration and other climate change impacts;

(5)  Despite this recognition, the leading nations of the world are still far from a workable plan to control global temperature change in a way that protects existing ecosystems and hundreds of millions of people; and

(6)  There remain important, and exceptionally challenging, legal and institutional issues to be addressed in the coming years to make any of the Copenhagen Accord a reality.

is a partner at Carter Ledyard & Milburn and co-director of the firm’s environmental practice group. He is an adjunct professor of international environmental law at Brooklyn Law School.

Reprinted with permission from the December 24, 2009 edition of the New York Law Journal  © 2009 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited. Reprint information for the legal properties relative to content searches and copyright clearance is available at www.imreprints.com. For questions contact, reprintscustomerservice@incisivemedia.com or 347-227-3382.


Endnote


[1]The formal name of COP15 was the 15th Meeting of the Parties to the United Nations Framework Convention on Climate Change.


Stephen L. Kass

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