Tag Archives: climate change

Sharing the passion to change the world – empowering students to curb climate change

 

 

 

A discussion with the Programme Coordinator of the MDP in Environmental Policy and Law, Tuomas Palosaari, by Mari Moilanen

“The decisions we make today are critical in ensuring a safe and sustainable world for everyone, both now and in the future. The next few years are probably the most important in our history”, said Debra Roberts, Co-Chair of IPCC Working Group II, in the press release of the world’s most significant climate report in October, 2018.

In the aftermath, the coordinator of the MDP in Environmental Policy and Law, Tuomas Palosaari, describes the skills that the MDP students develop during their studies to act for a better future.

What do you do, Tuomas?

I’m a lecturer as well as the Coordinator of the Master’s degree programme in Environmental Policy and Law. I take care of many kinds of tasks related to planning, admission, student counselling and lecturing.

I’m also a graduate from the same programme. During my Bachelor’s studies in Finnish environmental law I got more and more interested in global aspects, so I applied to this programme since it fit perfectly my interests and ambitions. And now I’m continuing that path as the coordinator, while at the same time planning my PhD on international environmental law.

What are you passionate about in your field?

I’m interested in the big picture: what is the state of international environmental law, why is it as it is, and where are we going? Climate change plays a central role in every environmental discussion today, making it a natural focus for me. Although I’m from the inland of Finland, I’m also very interested in maritime law. The high seas are kind of a wild west: full of possibilities as well as global risks.

Climate change is a prominent part of the studies – how does it show in practice?

Climate change is interlinked with practically all environmental issues we face today – from biodiversity loss to ozone depletion and air pollution. We offer a variety of courses directly or indirectly related to climate change. We have a specific course on climate change law and policy, but the topic is also addressed in courses on trade and the environment, international forest policy and law, international water law, and so on. Our staff and visiting experts include several professionals working at the centre stage of global climate action, and that knowledge is a valuable asset to pass to new generations of professionals.

However, climate change is not the only focal area. Students have a lot of freedom in planning their studies, and they can choose to focus on, for example, sustainable development, energy policy, natural resources governance or conflict resolution.

What is the current state of our climate? Why do we need more professionals to facilitate quick and drastic action?

We all know the situation is certainly alarming. The recent IPCC report urged the world to take rapid and far-reaching actions to keep the rise of global temperatures under 1.5 degrees Celsius, or else the natural and human systems will face serious consequences. It’s not a very encouraging report, but it makes it clear that we all need to do more than we are currently doing and be more ambitious.

What kind of thoughts do the students have on climate change issues? How is the international political turmoil reflected in the classroom?

I think that the news we have to read today on climate change and its consequences work as a catalyst for many of our students. For instance, the reactions to Trump’s announcement to withdraw from the Paris agreement have been strong in class and many times students wonder why international laws can’t force the States to do more to curb climate change. There’s frustration but, what’s more important, there’s enthusiasm to change things among our students.

However, it is important to place political developments – from the Trump administration to China’s rise in the world – in their context. Therefore our MDP seeks to provide students with the knowledge they need to understand what the true impacts of such political developments can be, what the ongoing value of international law is, and how other countries, non-state actors and subnational authorities can respond in the face of countries threatening to withdraw.

How does the MDP strive to support students’ personal passion to take concrete action in curbing climate change?

Our students are usually already very motivated when they apply for the programme. However, they may not be aware of all the things that are available to them to contribute.

I think that is our main job: to give the right tools and knowledge for the students to pursue their own interests and make a change: whether it’s in governments, the private sector, civil society or through further academic studies. We encourage discussion and the transfer of ideas, and that is why we have a lot of contact teaching and arrange for interactive discussions in our studies.

What can we do as individuals?

Especially with modern technologies and means of communication, I think it is an outdated way of thinking that individuals do not have an impact, and that we are simply passengers in political turmoil. We can all contribute small parts, like cogs in a big machine. But it requires an understanding of the problems and mastering the knowledge and skills to respond to those problems.

Doughnut Law – Environmental Law for the Anthropocene?

 

 

 

Niko Soininen

Niko Soininen currently works as a Postdoctoral Researcher in Ocean Governance Law at University of Gothenburg and Senior Lecturer in Environmental law and Jurisprudence at UEF Law School/CCEEL. In the fall of 2018, Soininen will start as an Assistant Professor (sustainable law, governance and regulation) at University of Helsinki.

Anthropocene is the scientific term for a geological time-period acknowledging the fundamental human impact on the Earth’s ecosystems. With global impact come questions of planetary boundaries: How much human impact is too much human impact? The Stockholm Resilience Centre’s study on planetary boundaries shows that we are currently well beyond safe nitrogen and phosphorus output levels. Also, biosphere integrity, especially the loss of genetic diversity, poses a high risk for humanity. Climate change and land-use are currently reported as causing increasing risks. At present, freshwater use lacks a quantified planetary boundary but freshwaters are heavily impacted by the above environmental changes. This is a bleak picture, but not all is lost. I spent four months in the spring of 2018 at the University of Maryland Socio-Environmental Synthesis Center as an ASLA-Fulbright visiting scholar studying adaptive governance. In the following, I’ll recap some of the most salient lessons from the adaptive governance scholarship seeking to design effective and legitimate environmental governance for the Anthropocene.

FROM DOUGHNUT ECONOMICS TO DOUGHNUT LAW

With the global economic system being a major driver in pushing the planetary boundaries, Kate Raworth presents an interesting theory for rethinking economics (Doughnut Economics. Seven Ways to Think Like a 21st Century Economist. Chelsea Green Publishing 2017). She makes a compelling argument for moving away from antiquated pictures of steadily climbing economic growth toward doughnut shape economics. The economic doughnut builds on “a pair of concentric rings”. The inner ring depicts the social foundation of human well-being and the outer ring the ecological boundaries of our planet. All human activity must remain within the doughnut’s two rings. With this picture in mind, Raworth asks us to consider “what economic mindset will give us the best chance of getting there?”

The question of getting the economic system to nourish social well-being while respecting planetary boundaries is not only important for economics, but also for law. In a legal context, the question reads: what legal mindset will give us the best chance of getting there? Applying Raworth’s question to law, we enter a familiar territory for adaptive law and governance scholarship. What does doughnut law and governance look like? What kind of law and governance is needed to stay within safe operating space for humanity? Analogically to the doughnut economy questioning existing economic theories, the adaptive law and governance theories question existing legal theories.

FOUR DOUGHNUT-LESSONS FOR LAW

The first doughnut lesson for law and governance in the Anthropocene is to regulate the use and protection of ecosystems at a systemic level (see a good overview, Benson & Craig 2017; Garmestani & Benson 2013). Traditionally, law has turned a blind eye to regulating cumulative human impacts on ecosystems. This is visible, among others, in the fragmentation of environmental management authority into several sectors at all levels of governance (energy, transportation, food production, natural resources, nature conservation etc.). The limitations of sectoral competence are often aggravated by management and regulatory authorities having limited geographical, and often artificial (non-ecosystem-based), competences. Staying within the doughnut, however, requires law and governance that is equipped with competence equivalent to the nature of the environmental problem at hand. Wicked problems such as climate change, nutrient run-offs and biodiversity loss require a systemic cross-sectoral and multi-level approach to law and governance.

The second doughnut lesson is to recognise that managing (what do we do?) and governing (what do we want?) the use and protection of ecosystems needs to be adaptive. As Craig & Ruhl (2014) and Cosens et al. (2017) have repeatedly observed, procedural and substantive rules need to facilitate the consideration of changing social-ecological circumstances. Traditionally, law has often been used to establish predictable rules that operate acontextually and do not allow consideration of changed ecological, social, economic, technological and cultural circumstances. In Finland, this approach is well illustrated in government issued hydropower licenses that are legally protected against revocation, and in certain instances the law does not even allow changes to existing licenses. This picture of the law as guaranteeing predictability and finality faces significant challenges in the Anthropocene as ecosystems and social systems dependent on them are dynamic entities (complex adaptive systems) with immensely complicated functions, feed-back loops and non-linear tipping-points. For this reason, law needs to allow adaptive and experimental management of social ecological systems and be able to adapt its own rules for maintaining human activity within the doughnut.

The third doughnut lesson is based on an understanding that people and companies do not like to be regulated. They may, however, still wish to advance accepted societal goals and may be very well-equipped to do so. The wrong picture is to think that law is the only policy instrument that really works. If we look at climate change mitigation, this is certainly not true. A study done by Vandenberg & Gilligan (2017) shows that companies like Walmart hold significant power to push environmental policy goals through their subcontractor networks. Law (or public governance in general) is not always the most effective way to steer human activities within the doughnut.

The fourth and final doughnut lesson is that law and governance need to be science based (see e.g. Benson & Craig 2017; Saunders et al. 2017). We need constant monitoring of social and ecological systems to understand how they function, have functioned and will be likely to function. Systemic governance is not possible without science, nor is adaptive management or governance.

With the above four lessons in mind, environmental law and governance will be much more equipped to stay within the social-ecological doughnut than ever before. The million-dollar question is, however, whether the international community, regional actors such as the EU and states have the courage and the political will to move towards more adaptive law and governance. While some encouraging regulatory examples are visible on all governance levels, the push-back of antiquated legal mindsets still linger in the air.

The role of law in securing resilience of water, energy and food systems

 

 

 

Kaisa Huhta, Antti Belinskij and Niko Soininen*

CLIMATE CHANGE, population growth and economic and technological development are significant challenges for natural resources management. Governing limited resources requires that the interlinkages between natural resource sectors are adequately acknowledged and addressed.

SUCH INTERLINKAGES are particularly clear between the water, energy and food sectors. Agriculture is the largest consumer of global freshwater. Water is also needed, for example, in the production of hydropower and biofuels and in the operation of solar panels. Energy is needed to ensure food production and water services, but some forms of energy production may also decrease land available for agriculture. Hence, decisions concerning one of these sectors do impact the functioning of others.

RESILIENCE REFERS to the ability of a system to adequately prepare for, and to recover from, shocks without losing its capacity to function.[1] It is particularly important for sectors such as water, energy and food. This is because, first, the uninterrupted availability of and access to these resources is irreplaceable to any society. Second, the potential butterfly effects between these sectors further emphasise the importance of safeguarding the functioning of water, energy and food systems.

RESILIENCE HAS a legal dimension. Law can either improve or impede the ability of a system to withstand disturbances and shocks. So how do we recognise a legal framework that improves the resilience of the water-energy-food nexus? First and foremost, the legal framework should adequately acknowledge the vulnerabilities of water, energy and food systems. Secondly, it should recognise interlinkages between these sectors in such a way that prevents a shock in one sector from paralysing the functioning of the others. Finally, a functional and effective legal framework should tackle the different time scales on which the water-energy-food security nexus operates. This means that a legal framework should be equipped to respond to sudden short-term disturbances as well as facilitate the long-term security in these sectors.

WHAT IS also needed is an adequate institutional and jurisdictional setup for co-operation and co-management of the sectors. For example, law governing electricity supply should acknowledge that a disruption will eventually affect food and water supply as well. Furthermore, law should not only facilitate responses to sudden shocks but also include tools to prevent such shocks in the longer term. In the water sector, for example, this would mean clear obligations concerning the investments needed to maintain functioning infrastructures.

THE ROLE of law in establishing and maintaining resilient water, energy and food systems is important but challenging. In an ideal situation, law supports and enhances the resilience of these sectors. However, law can also have the opposite effect if it emphasises predictability in a way that hinders adaptive reactions in shock situations. For example, rigid and static procedural rules may impede flexible and fast reactions to shock situations even if these rules are generally favourable to ensuring legal predictability and non-discriminatory practices. Furthermore, the societal, technical, economic and scientific uncertainties relating to the interlinkages between water, energy and food sectors make it challenging to balance predictability on the one hand and resilience of water, food and energy systems on the other. Nevertheless, the ability of law to maintain the resilience of these systems is a central element in safeguarding the water, energy and food security.

* The blog post is based on two recent articles supported by the Strategic Research Council’s Winland project (No 303628). The articles are:

  • Antti Belinskij, Niko Soininen and Kaisa Huhta, ‘Vesi-, ruoka- ja energiaturvallisuuden oikeudellinen resilienssi’ Ympäristöpolitiikan ja -oikeuden vuosikirja (2017)
  • Antti Belinskij, Kaisa Huhta, Outi Ratamäki and Marko Keskinen, ’International Law and the Water-Energy-Food Security Nexus’ in Peter Saundry (ed.) Food-Energy-Water Nexus (forthcoming 2018).

[1] Walker, Brian, Gunderson, Lance, Kinzig, Ann, Folke, Carl, Carpenter, Steve and Schultz, Lisen, ‘A Handful of Heuristics and Some Propositions for Understanding Resilience in Social-Ecological Systems’, 11 Ecology & Society (2006), p. 14.

The Bonn Climate Conference 2017: Progress on the implementation of the Paris Agreement and higher ambition?

 

 

 

Kati Kulovesi

Professor of International Law & Co-Director of the Centre for Climate, Energy and Environmental Law

THE LATEST round of United Nations climate negotiations concluded on 18 November 2017 in Bonn, Germany. What is the state of international climate policy after the meeting and what lies ahead for 2018 and beyond?

THE NEGOTIATIONS in Bonn were intended to have a mainly technical focus. Major outcomes were neither expected nor achieved. Still, the negotiating agenda was packed with issues ranging from agriculture and gender to indigenous peoples and loss and damage caused by climate change. Also high on the agenda were the main building blocks of the UN climate regime, namely mitigation, adaptation, finance, technology and capacity building.

Photo by IISD/Earth Negotiations Bulletin (http://enb.iisd.org/climate/cop23/enb/images/17nov/3K1A6733.jpg)

 

ONE OF the main issues in Bonn related to the development of detailed rules for implementing the 2015 Paris Agreement. The deadline for concluding these important negotiations is in December 2018. While progress was achieved on some issues, long-standing controversies also surfaced and largely stalled negotiations on the crucial issue of mitigation.

THE PARIS Agreement’s key achievements include that its basic mitigation regime applies to all Parties; the Agreement does not refer to the outdated categories of developed and developing countries in the 1992 UN Framework Convention on Climate Change and gives more consideration to countries’ national circumstances.  However, during negotiations on guidance on Nationally Determined Contributions (NDCs), China, India and their allies in the Like-minded Developing Countries group called for returning to a bifurcated system where different rules apply to developed and developing countries respectively. For many, such a system would constitute a major step backwards and the proposal met strong opposition especially from developed countries. Ultimately, countries forwarded 180 pages of text on mitigation to the next negotiating session in May. The text leaves all the highly divergent options on the table, including by reproducing word-by-word submissions from several countries and coalitions.

HOPEFULLY THE question of bifurcation will not distract the negotiators too much next year. For the question that urgently should take the centre stage in 2018 and beyond is that of ambition. The UN Environment’s 2017 Emissions Gap report indicates that the gap between the emission reductions needed to meet the Paris Agreement’s objectives, including the 2°C 1.5°C targets, and the existing NDCs is “alarmingly high” and “more ambitious NDCs will be necessary by 2020.”

THE PARIS Agreement relies on global stocktakes at five-year intervals from 2023 onwards to increase collective ambition. A similar exercise, a facilitative dialogue, was agreed in Paris for 2018. Now known as the Talanoa Dialogue -inspired by traditions of COP 23 President Fiji – this exercise will be an important opportunity to test the Paris Agreement’s largely procedural approach to mitigation.

THE TALANOA Dialogue will be informed by the Intergovernmental Panel on Climate Change’s Special Report on the 1.5°C target, scheduled for October 2018. Given that countries should submit new or updated NDCs in 2020, the hope is that the IPCC report along with the Talanoa Dialogue will lead to a stronger response to climate science and to more ambitious NDCs.

DIVIDED INTO preparatory and political phases, the Talanoa Dialogue will take place from January to December 2018. It will focus on three main questions: where are we; where do we want to go; and how do we get there. Positive elements in the Dialogue’s design include its comprehensive and participatory nature. Parties, stakeholders and expert institutions are invited to provide analytical and policy-relevant input. They are also invited to organize local, national, regional and global events in support of the Dialogue.

A PROBLEMATIC feature of the Talanoa Dialogue’s design is that there is no clear path forward from the Dialogue towards more ambitious NDCs. The Dialogue’s outputs will include summaries and reports of the discussions. The outcome is also “expected to capture the political momentum, and help Parties to inform the preparation of nationally determined contributions.” However, there seems to be nothing in the design to ensure that ambition will indeed be increased following the Dialogue.

Photo by IISD/Earth Negotiations Bulletin. (http://enb.iisd.org/climate/cop23/enb/images/9nov/3K1A2815.jpg)

HOW, THEN, to start building the momentum for more ambitious climate action?  An obvious challenge for the political climate is that President Trump has announced intentions to withdraw from the Paris Agreement in 2020 and the US federal government is no longer providing global climate leadership like it did during the negotiations for the Paris Agreement, especially through bilateral cooperation with China.

SEVERAL PROCEDURAL steps have already been identified both within inside and outside the UN climate negotiations for the next couple of years. These include:

WHILE IMPORTANT, these steps are not by themselves enough to guarantee that ambition will be increased in 2020. Stakeholders within EU countries and elsewhere should therefore take advantage of the participatory nature of the Talanoa Dialogue and build pressure on politicians to take stronger action both nationally and internationally. An encouraging example of going beyond the official government position is the ‘alternative’ US represented through individual states, cities and other stakeholders. The ‘alternative’ US was highly visible in Bonn and plans to remain active in global climate policy despite the backward position on climate change by the Trump Administration.

THE PARIS Agreement’s legal structure is interesting and innovative in that it includes opportunities to bring various actors at various levels of global governance closer together, including when preparing NDCs and evaluating collective progress through global stocktakes. The Talanoa Dialogue will provide the first important opportunity to test this design and hopefully show that it can actually work in increasing collective mitigation ambition.

Time for a holistic approach to climate change and air pollution in international law

 

 

 

Dr Yulia Yamineva

Yamineva works as a senior researcher at CCEEL.

The urgent challenges of climate change and air pollution could benefit from more integrated consideration under international law. As this blog post explains, climate change and air pollution are currently mostly addressed through separate international legal instruments and regimes. The blog post therefore identifies ways to build stronger links and synergies between policy measures to address these issues through international law.[1]

A view from the venue of the Biennial Conference of the Asian Society of International Law in Seoul, August 2017

A view from the venue of the Biennial Conference of the Asian Society of International Law in Seoul, August 2017

WHY INTEGRATE CLIMATE AND AIR QUALITY GOALS?

Policies to address climate change and air pollution include potential for win-win solutions. Some pollutants, especially black carbon, have both a detrimental effect on air quality and a warming impact on the climate. However, other air pollutants have a cooling effect and reducing their emissions could lead to an overall warming result. Furthermore, policy choices in one domain can have harmful effects on the other: for instance, the EU policies, aimed at developing diesel technology in the car industry in order to meet carbon dioxide reduction targets led to an increase in nitrogen oxides and particulate matter pollution in urban areas.[2]

There are clear benefits from a harmonised approach to tackling air pollution and climate change where mitigation measures are assessed for their potential impact on climate, air quality, human health and ecosystems. The key example relates to reducing emissions of short-lived climate pollutants (SLCPs).  Due to their short lifetime in the atmosphere, SLCP emission reductions, especially those of methane and black carbon, could slow the rate of global warming by 0.5°C by 2040. In addition to their warming effect, black carbon and methane have a negative effect on air quality and the environment: reducing these emissions could avoid 2.4 million premature deaths globally by 2030 and have positive impacts on agriculture and ecosystems. Focusing on mitigating SLCP emissions is therefore an attractive option to slow down global and regional warming in the short term, while at the same time improving local air quality.

TWO DIFFERENT WORLDS OF INTERNATIONAL LAW

International law largely treats the two policy goals – slowing down climate change and improving air quality – through separate instruments. This is unsurprising as climate change has traditionally been framed as a global problem, while air pollution has been understood by policy makers as a local or at best a transboundary issue. These different framings have implied that climate change should be addressed through legal instruments of global coverage, whereas air pollution can be effectively mitigated through regional and national/local measures. More recently, however, it has become apparent that the impact of air pollution goes beyond local or regional areas: this includes not only the impact on the climate referred to above but also worsening air quality due to atmospheric transport of air pollution from distant sources. Therefore, the problem of air pollution also requires global approaches.

Looking at international climate law, the 2015 Paris Agreement does not define what specific greenhouse gases or other warming substances it covers and in this sense does not address specifically methane or black carbon. One caveat to this is that the rulebook for the implementation of the Agreement is still under negotiation. The Agreement also contains no references to air pollution, although the connection may be implied from multiple mentions of sustainable development.

At the same time, methane has traditionally been within the scope of the UN Framework Convention on Climate Change (UNFCCC) regime: it is part of national reporting and covered by the Kyoto Protocol’s emissions reduction targets. It has received somewhat less attention though as the main discussion thus far has been on a long-term response to climate change and therefore on reducing carbon dioxide emissions. Black carbon, which is an aerosol and not a greenhouse gas, has not been covered by the UNFCCC regime.

Unlike international climate law, which centres on the UNFCCC regime, international law on air pollution is heavily fragmented. This issue is regulated in an ad hoc fashion through a patchwork of legal instruments covering specific regions, activities and substances. There is no single legal framework with a global reach and prospects for developing one are at present low. Lack of comprehensive and holistic treatment of air pollution in international law results in gaps in geographic, pollutant and pollution source coverage.

Looking across international air pollution frameworks, it can be concluded that these are rarely sensitised against climate impacts of air pollution measures. Air pollution treaties typically refer to transboundary effects of pollution but not to global effects, including climate change. There is for example no comprehensive global coverage of black carbon emissions. A regional exception is the Gothenburg Protocol to the Convention on Long-range Transboundary Air Pollution which was amended in 2012 to include emissions reduction targets for fine particulate matter. Although the black carbon component of these targets is not specified, the parties are encouraged to focus their mitigation action on black carbon rich sectors. The Gothenburg Protocol is thus the only multilateral environmental agreement to include black carbon in its scope. However, the amendment has not entered into force pending ratification by two-thirds of its parties and the geographic scope of the Protocol is in any case limited to Europe and North America.

OPPORTUNITIES TO BRIDGE THE GAP

There are multiple synergies between these two domains of international law which can be advanced for a more coherent approach to climate change and air pollution.

Scientific cooperation and collaboration in inventory development and reporting is one of the key areas. Data and scientific analyses are a fundamental step in developing sound environmental policies, and emission inventories are particularly important for developing national mitigation measures. For instance, scientists say that the best way to maximise climate and air quality benefits is to focus on sources with a high black carbon component rather than on those with a high component of cooling substances.

There are clear synergies between international climate change law and air pollution instruments in terms of inventories. The UNFCCC already has in place a well-developed global reporting framework for methane which air pollution frameworks could capitalise on. For black carbon, current reporting frameworks are fragmented, incomplete and mostly confined to the Northern hemisphere. More generally, global data on air quality as well as particulate matter and black carbon emissions are scarce or unavailable. The problem is especially acute in many developing countries which have poor capacity and systems to monitor air quality. This makes capacity-building activities at the global level crucial.

Another important direction is raising awareness about linkages, co-benefits and trade-offs between climate change and air pollution policies, including with respect to black carbon and methane. In this context, the Climate and Clean Air Coalition (CCAC), which is a public-private partnership led by governments, has already played an important role through scientific assessments and communication of SLCP impacts and potential mitigation actions.

Although the Paris Agreement does not per se integrate air quality concerns, the country-driven approach to mitigation action implies that diverse mitigation efforts can be accommodated under its framework. Potentially any substances, including methane and black carbon, can be incorporated into nationally determined contributions. In fact, many countries have already included methane, several have mentioned SLCPs, and some, such as Mexico and Chile, have specifically mentioned black carbon in their intended nationally determined contributions.

The situation is more complex regarding integrating climate change concerns into air pollution frameworks due to the number of related instruments and their incomprehensive coverage. This for instance means that there is no one single interface on air pollution at the global level which makes institutional cooperation between the policy worlds on climate change and air pollution more difficult. However, several fora have the potential to advance such cooperation, including the abovementioned CCAC as well as international organisations such as the UN Environment, the World Health Organisation and the World Meteorological Organisation.

In conclusion, there are many interlinkages between international law on climate change and on air pollution which should be explored.  Greater coherence between climate change and air pollution policies provides an attractive opportunity to link global, regional and local environmental agendas in a mutually beneficial way.


[1] The blog post is based on the author’s conference paper ‘Climate Change and Air Pollution in International Law: Apart or Together? Short-lived Climate Pollutants in Asia’, which was presented at the Biennial Conference of the Asian Society of International Law in Seoul, August 2017, as well as: Yulia Yamineva and Seita Romppanen, ‘Is Law Failing to Address Air Pollution? Reflections on International and EU Developments’ [Forthcoming in 2017] Review of European, Comparative & International Environmental Law, 26 (3); Yulia Yamineva and Kati Kulovesi, ‘Keeping the Arctic White: The Legal and Governance Landscape for Reducing Short-lived Climate Pollutants in the Arctic Region and Opportunities for Its Future Development’, in review.

[2] See Aleksandra Cavoski, ‘The Unintended Consequences of EU Law and Policy on Air Pollution’, [Forthcoming in 2017] Review of European, Comparative & International Environmental Law, 26 (3).

The Evolving International Gas Industry: A Brief Comment on Decarbonisation and Matters Arising

 

Tade Oyewunmi, Doctoral Researcher, oyetade.oyewunmi@uef.fi

IN A forthcoming paper on the topic- ‘Examining the Instrumental Role of Regulation in the Development of Gas Supply Markets: Highlights from the US and EU’ (2017)[1] I considered the effectiveness of regulation in the path towards restructuring and the development of competitive gas markets in which parallel policy objectives such as security of supply and sustainability are being pursued.

IN A climate change and decarbonisation context, debates relating to the effectiveness and implications of market-based mechanisms like carbon tax and emissions trading scheme (ETS) as opposed to standard-setting or rule-making conventional approaches to regulation have gained significant attention recently.[2] Pollution resulting from operations in the energy and petroleum industry are often considered as a major cause of greenhouse gas (GHG) emissions and climate change.[3] In an increasingly international gas industry which is now ever more interconnected with electricity markets in major industrialized economies, the disposition of the major energy-related GHG emitting countries such as the US, Russia, and China becomes highly relevant.

THE NORTH American shale gas revolution over the past eight years undeniably positions the US as the leading oil and gas producing country globally.[4] It is therefore not surprising to see several legal disputes between environmental protection groups against energy firms who are seeking to take advantage of the boom in unconventional hydrocarbon production to obtain approvals for gas commercialisation and LNG projects. Recently, in Earthreports, Inc., et al. vs. Federal Energy Regulatory Commission, Dominion Cove Point LNG, et al. (2016).[5] a US Court of Appeal for the DC Circuit rejected the claims of such environmental groups who contested the Federal Energy Regulatory Commission (FERC)’s conditional authorization of the conversion of the Cove Point LNG facility from an import maritime terminal to a mixed-use, import-and-export terminal. The environmentalists had argued that the FERC failed to consider the indirect environmental impacts that the Cove Point LNG conversion into a gas export facility might have, and therefore failed to satisfy its obligations under the National Environmental Policy Act (NEPA) of 1969. The Court held that under NEPA, the FERC is not required to consider indirect effects of increased natural gas exports through the Cove Point facility, including potential climate impacts.[6] Assuming this decision indicates the current disposition in the US to gas utilisation and commercialisation, it may be argued that conventional and prescriptive standard-setting or rule-making regulatory approaches may not necessarily hinder the shale gas production and commercialisation boom. However, as with any conventional regulation approach, it does create additional compliance and monitoring costs. Another important issue in the scheme of things is the possibility of the US pulling out of the 2016 Paris Agreement following the recent elections and subsequent change in government.[7]

Conventional Regulation vs. Market-based Pricing of Carbon Emissions
ADVOCATES OF market-based mechanisms like the ETS and carbon tax contend that placing a strong and predictable price or charge on carbon emissions is the most cost-effective and efficient path to GHG emissions reductions.[8] It is noted that the ETS framework seem to have come under stronger criticisms, while carbon tax proponents seem to be gathering more support.[9] Arguably, there are justifiable concerns about the de facto effectiveness of the ETS and its ‘cap and trade’ mechanism.[10] Such concerns relate to whether it actually limits GHG emissions or it is just another theoretical economic construct which in reality depends on perfect markets and effective balancing of demand and supply of trading allowances and permits. Another problem with carbon pricing, especially carbon tax is the socio-political challenge of curtailing pass-through costs on final energy (gas and electricity) consumers. Hence the question- who eventually pays for the ‘charge’ on carbon? According to the International Energy Agency (IEA), the main reasons for low carbon prices generally includes: (i) economic downturn which led to lower-than-anticipated emissions, resulting in a surplus of emissions allowances; (ii) the socio-political challenge of setting tight emissions cap or high carbon prices vis-à-vis industrial competitiveness and rising consumer electricity prices; (iii) flattening or falling electricity demand (resulting in reduced demand for ETS allowances) due to the positive effects of energy efficiency policies in many jurisdictions.[11]

IN COMPARING carbon tax with subsidies as plausible market-based mechanisms for the US, it has been posited that: “A carbon tax is superior to subsidies for carbon-free energy sources [e.g. renewables] in two important respects. First, it has the opposite effect on the budget deficit. While subsidies increase the deficit, a carbon tax would decrease the deficit. Second, it is much easier to design and to implement. To be effective, a carbon tax need only deter consumption of hydrocarbons. Consumers are left with complete discretion with respect to the ways in which they reduce their consumption of hydrocarbons. For example, by increasing the efficiency of their use of energy or by substituting for hydrocarbons some mix of carbon-free fuels like wind power, solar power, or nuclear power.”.[12]

NOTABLY, IN most market and developed economies, who also happen to be the leading GHG emitting countries seemingly due to high energy utilisation and industrialisation, there has been a general disenchantment with the interventionist and seeming highhandedness of traditional regulatory forms. Consequently, there has been a preference for more deregulation and to adopt alternative regulatory approaches which encourages the desired behaviour by economic and financial incentives rather than by legal compulsion or sanctions. In this regard, such incentives can be: (i) negative i.e. the conduct is legally unconstrained unless the a firm chooses to act in an undesired way, then it must pay a charge e.g. carbon price; or (ii) positive i.e. if a firm chooses to act in a desired way it is awarded a subsidy or allowed a more cost-efficient tariff such as feed-in tariffs for renewables or energy conservation.

THE APPARENT flexibility of market-based instruments should incentivize innovation and technological development. What it, however, does not guarantee ipso facto is accountability and trust unless such factors are built into the market structure and framework. It has also been argued that while the conventional command-based regulatory approaches may lead to more uncertainties about the apprehension, prosecution, and level of sanctions; market and economic instruments, on the other hand, could provide more a definite and predictable level of compliance motivating charges and payments. As far as developed market economies are concerned, it appears there is strong argument in favour of placing a price or a charge on energy-related GHG emissions. Although the main caveat or pragmatic concern is the credibility of the carbon emissions market, and whether such approaches will effectively curtail negative environmental and climatic impacts without imposing avoidable costs on operators and energy consumers. Also, as inquired earlier, who pays for the price of carbon emissions in an increasingly international gas supply and energy context?

 

[1] This paper will be published in a forthcoming 2017 issue of the Houston Journal of International Law.

[2] Brittany A Harris, ‘Repeating the Failures of Carbon Trading’ (2014) 23(3) Pac Rim L & Pol’y J 755 – 793; the International Energy Agency (IEA), ‘Energy, Climate Change and Environment 2016 Insights’ (IEA Publications, 2016) 1 – 133; Adam Whitmore, Can Emissions Trading Produce Adequate Carbon Prices? Energycollective, January 23, 2017.

[3] Energy industry related GHG emissions include CO2, methane (CH4) from natural gas production and nitrous oxide (N2O). These gases are quantified in terms of their global warming potential relative to CO2. For instance, gas flaring and venting is one of the main hydrocarbon exploration and production processes with environmental implications to the extent that CH4 is one of the main components of natural gas. Flaring is the controlled burning of natural gas produced in association with oil in the course of routine oil and gas production operations. Venting is the controlled release of unburned gases directly into the atmosphere. In addition, water management, including water usage during drilling and hydraulic fracturing, and the protection of surface and ground water during drilling, fracturing, production and disposal activities, is a central environmental issue for unconventional gas production. See the International Energy Agency (IEA), ‘Energy Policies of IEA Countries: The United States 2014 Review’ (IEA Publications, 2014) at 209 – 211; IEA, ‘Energy, Climate Change and Environment 2016 Insights’ (IEA Publications, 2016) 1 – 133.

[4] Proven gas reserves in the US has increased by almost three-quarters since 2000, up to 9.1 trillion cubic metres (or 323 trillion cubic feet) by end 2012, or the equivalent of more than 100 years of production at 2012 consumption rates. Natural gas production is projected to continue to increase over the period to 2040. Improvements in advanced crude oil production technologies, such as hydraulic fracturing, are widely expected to continue to lift domestic supply into the medium term. The renaissance that the oil industry is undergoing is largely the result of growth in light tight oil (LTO) production, a boom that is expected to continue until 2020 at least. According to Forbes, ‘The 25 Biggest Oil and Gas Companies in The World’30 March, 2016: “The U.S. has seven companies in the top 25, more than any other country” Other countries/companies in the list includes Russia’s Gazprom and Rosneft as well as China’s Petro China.

[5] Earthreports, Inc., et al. vs. Federal Energy Regulatory Commission, Dominion Cove Point LNG, et al, No. 15-1127 (D.C.  Cir., 2016)

[6] Ibid.

[7] The previous US government administration, signed and ratified the Paris Agreement on climate change on 22 April 2016. According to Platts, Fact Box: Global energy implications of Tillerson as top US diplomat, 1 February 2017 at <www.platts.com/latest-news/oil/washington/fact-box-global-energy-implications-of-tillerson-21766883> accessed 09/02/2017, it seems the new administration may be more favourably disposed to Carbon Tax and intends “to keep a seat at the table of global climate talks to understand the impacts on Americans and US competitiveness”.

[8] See IEA, ‘Energy, Climate Change and Environment 2016 Insights’ ibid. In the power sector, carbon prices can influence the economic choices of investors, technology developers and consumers. They can moderate energy demand, deter new high-carbon investment and encourage low-carbon instead, and curtail the operation of existing high-emitting assets. Carbon pricing also plays a role in shifting corporate behaviour: by making climate change a financial rather than environmental reporting issue, it directly engages top management.

[9] Tade Oyewunmi, ‘Emissions trading scheme and gas flaring in the United Kingdom Continental Shelf: a comment’ (2011)(5) International Energy Law Review 193-199; Adam Whitmore, Can Emissions Trading Produce Adequate Carbon Prices? Energycollective, January 23, 2017. In Brittany Harris, Repeating the Failures of Carbon Trading, (2014) 23(3) Pacific Rim Law & Policy Journal pp. 755 – 793. the author also points to the de facto ineffectiveness of the carbon trading mechanisms as applied in the pacific rim countries. See also Richard J. Pierce Jr., ‘The Past, Present, and Future of Energy Regulation’ (2011) 31(2) Utah Environmental Law Review pp. 291-308.

[10] Ibid.

[11] IEA, ‘Energy, Climate Change and Environment 2016 Insights’ note 3 supra.

[12] Pierce Jr., note 9 supra.

A Nudge Towards Low-Emission Mobility – A Glance at the AFI Directive’s Approach to End Oil Dependence in the European Transport Sector

 

 

 

Sara Kymenvaara, Researcher, Climate Change Law, LL.M.

A FAMOUS metaphor on climate change politics refers to people’s unrelenting driving of SUVs, disconnected from the threat of climate change they are contributing to. Although a lot has changed on the political arena with the entry into force of the Paris Agreement on 4 November 2016, the transport sector’s current state of play, in certain aspects, still corresponds to the metaphor’s dystopian features. The sector plays, however, an important role in achieving the Paris Agreement’s climate change mitigation objectives.

IN THE EU, transport is set to contribute to the overall emission reduction target of 30% by 2030 from 2005-levels. The Commission has also set out a specific goal for the transport sector to reduce greenhouse gas emissions by 60% from 1990-levels by the year 2050.

HOW TO achieve these ambitious objectives?  Transport remains the only sector in EU where GHG emissions have risen since 1990. Emission reductions achieved by new motor vehicles’ improved energy efficiency as a result of the EU Regulations on passenger cars and vans are forecast to be offset by increased mobility demand. In fact, it seems that the 60% emission reduction target for the transport sector will require a “systemic change” in the transport system and sector as a whole.

ONE OF the key measures to achieve the necessary systemic change is to end the transport sector’s heavy reliance on fossil fuels and start using cleaner vehicles and fuels. To this end, a key EU-level policy instrument is Directive 2014/94/EU on the deployment of alternative fuels infrastructure (the “AFI Directive”), a main legislative measure to implement the Commission’s alternative fuels strategy.

ALTERNATIVE FUELS include, for example, electricity, hydrogen, natural gas and sustainable biofuels, and the AFI Directive’s main objective is to promote the construction of the infrastructure needed for the vehicles running on these fuels. However, installing infrastructure for vehicles using alternative fuels should correspond to the amount and types of vehicles in use. Such vehicles are not currently sold in amounts large enough to develop sufficiently competitive prices. Thus, the combination of high prices and lack of infrastructure discourages consumers from buying them.

THEAFI Directive aims to end this vicious circle by obliging EU Member States to promote the development of their national markets for alternative fuels and set objectives and targets for the related infrastructure. The AFI Directive contains, however, no binding targets for infrastructure and the Member States’ objectives can be revised at a later stage. Thus, the AFI Directive ‘nudges’ rather than obliges Member States to develop markets and infrastructure for low-emission fuels and vehicles.

CONCERNING ELECTRIC mobility, for example, the EU Member States must ensure that an “appropriate” number of public charging points are installed for electric vehicles in densely populated areas by 2020. The “appropriate number” is determined largely by the Member States themselves in relation to their national estimates of, and objectives for, the number of electric vehicles to be registered by 2020.

ACHIEVING THE ambitious emission reduction goals in the transport sector also requires that policy incentives that counteract these objectives are identified and abolished. For long, the tax benefit to diesel fuels in many EU Member States has created such an incentive, let alone the failure to consider diesel’s external costs of air pollution on human health. Over half of all newly registered passenger cars in the EU run on diesel while alternative fuel vehicles currently only account for 4.9% of all passenger cars in use.

THE FIGURES indicate that EU currently is far from achieving the objective of a Low-emission Mobility. Interestingly, however, certain estimates, mainly concerning Norway, predict that electric vehicles are set to conquer the markets extensively in the near future. However, Norway seems to be an exception to the otherwise increasing share of diesel vehicles in the rest of Europe; Norway’s share of electric vehicles in new car sales currently is currently almost 30%, while the same figure is 1.5% for Western Europe. In addition, hardly no other European country has a state budget robust enough to afford the fiscal incentives for electric vehicles that have stimulated their surge in Norway.

AGAINST THIS backdrop, the national objectives and policy measures of the EU Member States to implement the AFI Directive will be essential for cutting oil dependence in the transport sector. If these national policy frameworks are sufficiently ambitious, the AFI Directive’s adaptive strategy may indeed solve the deadlock concerning lack of infrastructure and alternative fuel vehicles’ market penetration – and thus contribute to the decarbonisation of the transport sector within the timeframes set out by the EU’s climate policy objectives.

Volatile relations: EU-Russia energy regulation

 

 

 

Moritz Wüstenberg, Junior Researcher, European Law

THE WORLD Trade Organization (WTO) is often seen as a curiosity generally associated with globalization. The WTO as we know it today has developed in its 70 year’s history from a provisionally applied interim agreement (the General Agreement on Tariffs and Trade or “GATT”) to become an independent organization, with nearly universal participation.

FOLLOWING ACCESSION to the WTO in 2012, Russia has been eager to take its energy related grievances with the EU to be adjudicated at the WTO. Whilst transit has become a lesser problem in recent years, partly due to the direct connection from Russia to Germany via the Nord Stream 1 pipeline (Nord Stream 2 is on its way, see previous blog by K. Talus), the internal market liberalization of the EU has had effects on the European investments of Russia´s export monopoly Gazprom.

THE CASE directly related to energy regulation brought by Russia to the Dispute Settlement Body (case DS476, Certain Measures Relating to the Energy Sector) of the WTO alleges, inter alia, that Russian goods and services are treated less favourably than third countries and less favourably than other EU goods and services (in violation of the Most Favoured Nation obligation and National Treatment obligation of the EU, respectively). The alleged violations are mainly related to limitations in access to infrastructure, including pipelines that connect Nordstream 1 to the wider European gas network, owned by Gazprom.

TWO OTHER cases brought by Russia against the EU (cases DS474 and DS494) are also related to energy, albeit indirectly. In anti-dumping determinations against energy intensive goods (in this case, steel from Russia), EU rules make it possible to replace the actual energy costs producers pay in Russia by a cost that is adjusted to reflect “market” prices. In effect this means that the anti-dumping margin paid on steel imports to the EU become higher.

THE REGULATION of energy trade between the EU and Russia is vital for the EU to secure its energy supply and at the same time crucial for Russia, as some 50% of the federal budget is raised from the extraction and sale of energy goods. The disputes brought by Russia touch upon matters of trade that are sensitive due to their strategic nature, but are not regulated effectively by the rules of the WTO which were negotiated for more traditional areas of trade.

THE ENERGY Charter Treaty, which Russia abandoned in 2009, has detailed rules for energy trade and would be more effective in regulating this area of trade. Russia withdrew from provisional application of the Energy Charter Treaty following the gas crisis of 2006 and 2009. The gas crisis were caused by transit disputes and resulted in many eastern and central European countries being undersupplied during the winter. Central stated reasons for the final withdrawal from the ECT were related to failures in the regulation of transit. Whether Russia will join the ECT seems uncertain, even though efforts to develop the regulation of transit continue at the Energy Charter.

THE SHORTCOMINGS of the regulatory framework of the WTO for energy trade have been discussed at the WTO as well as in academia. It is generally understood that there are a number of areas, export prohibitions through cartels (e.g. OPEC) and transit rules being prominent examples, which the rules of the WTO do not address effectively. Numerous suggestions for amendment or addition of rules have been made, but the debate remains open.

A NEIGHBOURHOOD trading relationship, such as the one between the EU and Russia, can be regulated by a number of WTO rule compliant means. One option would be the conclusion of a Preferential Trade Agreement (PTA) to regulate energy trade between the EU and Russia. This would be a fairly straightforward option which, as long as it complied with WTO requirements (mainly the obligation not to raise tariffs or other barriers to trade in relation to other WTO members), could be negotiated bilaterally and would effectively remain outside the multilateral framework of the WTO.

PLURILATERAL AGREEMENTS (PA´s), binding to those members that accede to them, have previously been adopted within the framework of the WTO (Annex 4 agreements). The main difference in relation to PTA´s is that PA´s function within the framework of the WTO. There are a number of advantages to regulating through a PA as opposed to a PTA, one being direct access to the dispute settlement system of the WTO. The main difficulty in adopting a PA on energy would be the need to achieve consensus among the WTO membership to add such an agreement to Annex 4. In effect this means that consensus has to be obtained also from members who do not intend to join a PA and consequently do not have rights or obligations arising from it.

RE-REGULATING ENERGY trade between the EU and Russia may become necessary rather sooner or later. Even if a transition to renewable energies is on its way, natural gas will remain an important transition fuel until 2040 and later, even under the most ambitious climate targets. Russia has the world´s largest natural gas reserves and is connected by pipeline to the EU. Maintaining a well-regulated commercial relationship would therefore not only ensure energy security, but would also be advantageous to achieve climate policy targets.

 

Full articles on the above issues have been published recently as:

Moritz Wüstenberg, ´An Overview of the Dichotomy between EU Energy Market Liberalisation and the Multilateral Trading System: Case Review of WTO Case DS476 – Certain Measures Relating to the Energy Sector, International Trade Law & Regulation 22 (1) 2016

Moritz Wüstenberg, ´Reformation or Standstill? Re-Regulating Energy Trade between the EU and Russia, International Energy Law Review 34 (7) 2016

Reflections on Rhetoric: Discussing ‘Sustainable Development’ in Northern Regions at Arctic Circle Forum 2016

 

 

 

Dr. Sabaa A. Khan, Postdoctoral Researcher

THE FOURTH Arctic Circle Forum took place in Canada from 11 to 13 December 2016, hosted by the Government of Quebec. The Forum compliments the larger Arctic Circle Assembly held in Reykjavik, Iceland, each year. Its objective is to convene international stakeholders to consider specialized issues pertaining to Arctic cooperation. Earlier forums hosted in Alaska, Singapore and Greenland addressed shipping and ports, as well as economic development.

IN 2016, the Forum focused on Sustainable Development in Northern Regions: An Integrated and Partnership-based Approach and provided an opportunity for Quebec to share the Plan Nord. This is an ambitious mining, energy, forestry, wildlife and tourism development plan covering all of Quebec territory that lies north of the 49th degree of latitude. The Forum also included a special plenary session on Climate Change in Arctic and Northern Regions.

David Miller, President and CEO of WWF Canada draws attention to caribou survival in decline across Canada, at the Special Plenary Session on Climate Change.

 

THE FORUM’S opening session focused on what sustainable development means for the fragile northern regions of the globe. Philippe Couillard, Premier of Quebec, emphasized the importance of harnessing developmental opportunities in Quebec’s vast untapped forests and mineral reserves, while Ólafur Ragnar Grímsson, Arctic Circle Chairman and former President of Iceland, acknowledged a group of protesters outside the Forum and reminded that citizens had to be brought along in the process of sustainable development as central participants.

VITTUS QUJAUKITSOQ, Minister of Commerce, Employment, Trade, Energy and Foreign Affairs, Greenland addressed what is arguably the most important Arctic climate change issue: oil and gas exploration. Casting aside the issues of conservation and climate change, he expressed optimism for the US President-elect Donald Trump’s economic development plans in the Arctic region and stated his hope for a US Secretary of State appointment “with a comprehensive experience from the private sector.” In light of the subsequent nomination of Exxon Mobil’s chief executive Rex Tillerson as the US Secretary of State, Greenland’s desire for enhanced regional cooperation on Arctic oil and gas development may very well become a reality.

THIS STANDS in stark contrast to the Canadian and outgoing US Administration’s approach to sustainable development in the Arctic.  In fact, a week following the Arctic Circle Forum in Quebec, the US and Canada released a joint statement banning offshore oil and gas development in their respective Arctic waters. The US has imposed an indefinite ban on oil and gas leasing on the majority of US waters in the Chukchi and Beaufort Seas, while Canada imposed an indefinite ban on offshore oil and gas licensing in all Arctic Canadian waters, to be reviewed every five years through a lifecycle assessment based on climate and marine-science.

THE ISSUE of oil and gas development also arose in the Forum’s special plenary session on climate change. David Heurtel, Minister of Sustainable Development, Environment and the fight against Climate Change, Quebec, expressed the province’s desire to move away from drilling. David Miller, President and CEO, World Wildlife Fund, Canada, emphasized the clarity of climate change science on the importance of eliminating fossil fuel dependence and of embracing renewable energy industries that do not negatively impact conservation of flora and fauna, especially the protection of wildlife habitats. His Serene Highness Albert II, Prince of Monaco insisted upon the “irreplaceable” role of scientific knowledge as the only “solid and incontestable basis” for Arctic development. Addressing hydrocarbon exploration in particular, he noted that we could not hope but for a limitation of these activities.

WHILE CLEARLY demonstrating there is no consensus between Arctic nations on halting oil and gas exploration in the Arctic as a measure to respond to the urgency of climate change, the Forum made it clear that Arctic development will not be left to federal authorities and top-down processes. Overall, the salient and most widely embraced idea affirmed at the Arctic Circle Quebec Forum was that sustainable development of the Arctic region has to be a broadly inclusive and science-driven process duly integrating the knowledge and participation of local communities.

Rainforests in the Paris Agreement: Old Wine, New Bottles?

eugenia2Maria Eugenia Recio

Researcher, MPhil, Environmental and Climate Change Law

 

MERELY A year after its adoption, the landmark Paris climate change treaty came into effect on 4 November 2016. Its Parties are currently convening for the first time in Marrakesh, Morocco. These are clearly important steps for the United Nations climate change regime. At the same time, in light of countries’ nationally-determined contributions (NDCs) under the Paris Agreement, it is clear that more ambitious mitigation efforts are needed to achieve the 1.5°C and 2°C temperature goals included in the Agreement.

LARGE FORESTS located in developing countries can play an important role in global climate change mitigation efforts by taking up carbon from the atmosphere and storing it. The Paris Agreement taps into this potential by encouraging countries to implement measures to reduce deforestation and forest degradation, commonly known as “REDD+”. The basic idea behind REDD+ is that developing countries can apply for compensation for the greenhouse gas emissions avoided by protecting and not cutting their standing forests.

BUT DOES the inclusion of REDD+ in the Paris Agreement actually strengthen international efforts with respect to forests? The protection of natural forests through a multilateral, legally binding agreement has been on the international agenda for over two decades. Sovereignty concerns of developing countries were one of the main reasons why such agreement has not materialized. Nevertheless, during ten years of negotiations on REDD+ under the UN Framework Convention on Climate Change, countries have agreed on a variety of detailed rules in the form a dozen decisions by the Convention’s governing body known as the Conference of the Parties (COP).

DECICIONS BY the UNFCCC COP have gradually helped to build trust, allowing developing countries to engage in negotiations that could be considered to be “safer” than negotiations on a legally binding agreement. Following the mention of REDD+ and the existing framework in the Paris Agreement, the collection of decisions taken to protect forests in developing countries is now for the first time anchored in a legally binding agreement.

A LEGALLY binding agreement implies a stronger commitment by countries to comply with its provisions, as it usually requires ratification by national parliaments. However, the legal force of each particular provision in the agreement depends on the language used. Thus, while the Paris Agreement is clearly a legally binding international agreement, it contains both mandatory and non-mandatory language. Notably for forests, countries are merely “encouraged” to take and support REDD+ action; this does not create a legal obligation to implement REDD+.

ALSO THE existing rules for REDD+ adopted by the COP make its implementation completely voluntary. Furthermore, they favour results-based payments, meaning that countries first need to take action on REDD+ before being compensated based on emission reductions. Such an approach excludes the possibility that REDD+ countries take on obligations to reduce forest emissions beforehand.

REGARDLESS OF the largely voluntary nature of the legal framework for REDD+, Parties to the Paris Agreement have taken on a political commitment to support REDD+. This political recognition can arguably give REDD+ a higher profile and boost its implementation, which could result in more funding to address deforestation in developing countries and broader international support.

ANOTHER POSITIVE step is that REDD+ rules relating to transparency require countries to report on emission reductions and on the impacts that activities have on forest communities and the environment (e.g. biological diversity). However, international oversight over such reporting is limited, and the process remains largely in the hands of national governments.

IT IS useful to note here that while the Paris Agreement also establishes a broader framework for transparency and review, it does not change the transparency rules for REDD+ and recognizes that the REDD+ framework is “already developed”. This does not mean, however, that the existing REDD+ rules are cast in stone. On the contrary, the inclusion of REDD+ in the Paris Agreement creates, in my view, a stronger mandate for Parties to make changes to REDD+ rules in the future. This could mean, for example, aligning REDD+ rules with the new transparency framework applicable to the post-2020 climate regime.

FINALLY, THE Paris Agreement also contains elements that can attract participation in REDD+. First, it effectively reassures that REDD+ will continue to be a part of the long-term international climate regime. This offers a positive assurance for those considering to invest in REDD+ in the medium- to long-term.

SECOND, WHILE the relationship between countries’ nationally-determined contributions (NDCs) under the Paris Agreement and REDD+ remains subject to clarification, REDD+ could be part of the toolbox available for countries to achieve their NDCs.

THIRD, FOR countries willing to use markets to finance REDD+, the agreement creates the legal basis for a market mechanism for countries to ostensibly trade emission reductions, although whether and how it will be used for REDD+ implementation remains to be seen.

IN SHORT, the Paris Agreement does make a difference for REDD+ by enhancing political support for REDD+, strengthening the mandate to continue addressing REDD+ through the climate regime, and offering elements that can broaden country participation in the future.

 

This post has also been published at CCEEL Blog at CCEEL website.