New York Law Journal
January 28, 2016 by Stephen L. Kass
As Voltaire’s Dr. Pangloss might have said, the Paris Agreement on climate change that was adopted by the United States and nearly 200 other countries on Dec. 12, 2015, was the best of all possible agreements, at least for now. While the Paris Agreement contains virtually no binding commitments by anyone, it does reflect a new international consensus that all nations, both developed and developing, must act aggressively to reduce greenhouse gas (GHG) emissions in order to try to hold average global warming (now seen as inevitable) to “well below” 2 degrees Celsius (3.6 degrees Fahrenheit) over the pre-industrial level. In the aftermath of this agreement, discussion has properly focused on the difficulty of achieving that goal when the most ambitious—and by no means assured—promises by the world leading emitters fall far short of the required GHG reductions.
Even if all those promises are actually kept, the world appears on course for a temperature increase approaching 3.5 degrees Celsius (6.3 degrees Fahrenheit) over pre-industrial levels by the end of this century. To meet the Paris goal of “well below” 2 degrees Celsius, the United States, Europe, China, India, Indonesia, Brazil and other major GHG emitters will need to aim for substantially greater GHG reductions than are currently on any of their agendas.
That effort deserves unrelenting pressure from scientists, environmental organizations, voters and enlightened business and political leaders around the world. Even if it ultimately succeeds, however, for the next 50 years (and likely longer) the poorest countries, and the poorest people, are likely to experience the worst effects of climate change long before the planet’s temperature and ecosystems can stabilize at the new “normal” envisioned by the Paris signatories. Even in a 2 degree Celsius warmer world, those impacts will be felt not only in temperature increases that threaten human health, but also in increased drought, flooding, disease, famine, conflict and large-scale migration as water, arable land, crops and marine resources disappear.
Unless meaningful plans are developed and carried out to help the hundreds of millions of the most vulnerable people adapt to these conditions, it is hard to imagine that modern constitutional democracy, established notions of human rights or even the rule of law can long survive. If, as seems more likely, that world is 3 to 4 degrees Celsius warmer by the year 2100, the number of people affected by these tectonic shifts in human and environmental conditions will increase dramatically as existing patterns of human habitation (including many of the world’s largest cities) and nutrition become infeasible.
A number of non-governmental organizations have issued reports suggesting the kinds of adaptation that developing countries should consider in developing their own adaptation priorities and programs. Less has been written about funding for that adaptation, which has received surprisingly little attention in the United States. However, a recent report by the New York City Bar Association’s Task Force on Climate Adaptation attempts to address both the substance of and funding for climate adaptation in order to begin that overdue discussion. (The author was chair of the task force.)
Unfortunately, even the most ardent GHG reformers in the United States and Europe have focused almost exclusively on climate “mitigation” and neglected the equally imperative need to address climate “adaptation,” particularly in developing countries. The Paris Agreement too addresses adaptation only briefly. Still, it includes a useful start on this neglected subject, which for most residents of the developing world is the single most important aspect of climate policy.
Article 7(1) of the Paris Agreement sets forth a goal of “enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change with a view to contributing to sustainable development” even with 2 degree Celsius warming. Article 7(7) calls on all parties to cooperate in sharing scientific knowledge, institutional arrangements and effective adaptation practices. Article 7(9-11) requires all parties, “as appropriate,” to develop climate adaptation plans and to report periodically on the implementation of these plans as part of the national reports required under the Paris Agreement.
Article 9(1) of the Paris Agreement requires developed countries (and encourages other countries) to provide financial assistance to developing countries for both mitigation and adaptation, while Article 7(13) specifies that adaptation support shall be both “continuous and enhanced” over current levels. Although the agreement itself is silent on the amount of such assistance, paragraph 115 of the parties’ resolution adopting the Paris Agreement “strongly urges” developed counties to meet their 2009 Copenhagen goal of $100 billion of annual support by 2020 for both GHG reduction and adaptation. Paragraph 54 of the resolution contemplates increasing that goal to unspecified levels above $100 billion by 2025.
While welcome, this rhetorical upgrading of developing countries’ adaptation needs is short on both the substance of adaptation and, more significantly, how to pay for its enormous costs. Even the promised $100 billion remains uncertain, is intended largely for GHG mitigation and is in any case inadequate and untimely for large-scale adaptation programs that cannot be deferred until 2025. Absent an assured source of long-term financing or grants, even the most carefully developed adaptation plans under the Paris Agreement will remain paper proposals that fail to protect vulnerable communities and expose both developing and, ultimately, developed countries to the impacts outlined above.
City Bar Association Proposal
The focuses on four areas of climate adaptation critical for developing countries: (1) urban adaptation; (2) rural adaptation and food security; (3) internally displaced persons (IDPs); and (4) adaptation financing.
Urban Adaptation. With respect to urban adaptation, the task force report draws on the experience of both New York City and four developing country cities (Cape Town, South Africa; Dakar, Senegal; Dhaka, Bangladesh; and Maputo, Mozambique), each of which faces severe climate change impacts. After reviewing the strengths and weaknesses of adaptation (or “resiliency”) programs in these cities, the report sets forth the range of substantive and procedural initiatives that appear central to effective urban adaptation. These include (1) a comprehensive science-based assessment of climate risks in each potentially affected city; (2) a long-term adaptation plan (including any necessary residential relocation) that is transparent, equitable and the product of meaningful community participation and that pairs climate adaptation with shorter-term environmental and social co-benefits; (3) emergency planning that is focused on the most vulnerable communities; and (4) the creation of continuing institutions to assure that adaptation plans are implemented with these priorities in mind.
Rural Adaptation. Rural adaptation measures recommended by the task force report include broader recognition of the right to food as a fundamental human right and the implementation of specific actions to help rural farmers in developing countries (the vast majority of whom are women) continue to farm their land productively. These measures include, in addition to greater rural security for farming families and protection against subsidized foreign food imports, the following concrete measures: wider dissemination of drought management practices; assistance in installing water-saving drip irrigation systems; access to crop insurance and financing for seeds, tools, storage and distribution facilities; improved transportation to local markets; and reformed land tenure and title registration procedures.
IDP Protection. The world’s 40 million internally displaced persons (IDPs)—twice the number of cross-border migrants—present a particularly compelling challenge that is ignored by many domestic governments and much of the international community. The task force report, after noting that IDPs have significantly fewer rights than cross-border migrants seeking refugee status, surveys a number on international proposals to protect IDPs’ rights. It then suggests principles for the international community to adopt in order both to protect IDPs and to facilitate their return to their home communities, rather than continuing to swell the number of cross-border migrants.
These principles include (1) provision of humanitarian assistance, including food, water, shelter, medical care and education for IDPs; (2) recognition of the civil and political rights of IDPs, including practical ways to participate in elections in their new communities, and the right to maintain their cultural life, religion and language; (3) participation in decisions relating to their relocation and to their return home whenever feasible; (4) the right to work; (5) cost-efficient and impartial systems for resolving claims of abuse against IDPs, property disputes and claims for compensation where property has been taken by government forces or third parties; and (6) independent monitoring of IDP conditions and periodic reports to the international community to assure compliance with these principles.
Adaptation Funding. As discussed above, the cost of this broad range of adaptation programs, both in cities and rural areas, will far exceed the sums contemplated by the Paris Agreement, which are in any case intended to deal with both GHG mitigation and adaptation. The task force report therefore surveys the range of potential funding sources for adaptation, noting that few, if any, countries are willing to commit to long-term governmental appropriations for adaptation in developing countries at anything approaching the required levels of support.
Even if they are enacted, other climate proposals such as carbon taxation or cap-and-trade schemes are not intended, or likely, to provide significant funds for adaptation abroad. To fill that gap, the task force therefore proposes a small international “Financial Transaction Microtax” (FTM) that could, depending on its amount, generate more than $100 billion annually exclusively for developing country adaptation programs.
Creation of such an FTM is expected to be controversial, even among those who argue for sharp GHG emission reductions or increased direct appropriations to developing countries for climate adaptation. Some opponents will argue that increasing, even slightly, financial transaction costs is a poor economic idea; other opponents will point to other deserving domestic and international uses for the proceeds of such a tax; still others will question who should receive and disburse those proceeds and under what guidelines to prevent large-scale corruption or waste.
The task force report attempts to address these issues, arguing that there simply is no other politically feasible source of funding for programs that are in the self-interest of the entire international community and that a small FTM is unlikely to skew international financial transactions. The task force also suggests that the U.N.’s recently created Green Climate Fund or its Adaptation Fund (both referred to in the Paris Agreement) or the Global Environment Facility established by the U.N. following the 1992 Earth Summit in Rio de Janeiro, among others, could serve as acceptable bodies to receive and disburse FTM proceeds.
It is neither wise nor necessary to attempt to answer all of these questions now. What is needed, I believe, is a focused discussion of the best means of financing the very significant, but absolutely necessary, costs of climate adaptation in developing countries while the developed world (as well as the major emerging economies like China, India, Brazil, South Africa and Indonesia) begins to put in place GHG mitigation schemes that are likely to require many decades to even begin to reduce global warming. The city bar task force report proposes one concrete way to provide that financing on a sustained long-term basis. Other proposals to meet that need deserve equal consideration. The important point is to start that dialogue promptly, before the momentum of the Paris Agreement is lost and while feasible adaptation options remain for those most directly impacted by climate change.
Stephen L. Kass is senior environmental counsel at Carter Ledyard & Milburn and adjunct professor at Brooklyn Law School and NYU’s Center for Global Affairs.