Nov 2018. Climate Law and Policy.
It has been eight years since Parties to the United Nations Framework Convention on Climate Change [UNFCCC] adopted a set of seven safeguards to ensure Reducing Emissions from Deforestation and Forest Degradation [REDD], and conservation, sustainable management of forests and enhancement of forest carbon stock [+] should, as a minimum, ‘do no harm’, and where possible go beyond this to ‘do good’ and achieve multiple [carbon and non-carbon] benefits. Given the potential environmental risks and benefits of REDD+ implementation, Parties to the UNFCCC recognised the need to ensure that the rules and guidance for REDD+ include measures to protect those potentially at risk, particularly indigenous peoples, local communities and biodiversity.
Rather than defining a detailed set of safeguards provisions for REDD+, Parties to the UNFCCC agreed to a set of seven broad safeguards that are expected to be applied in accordance with national circumstances. Consequently, REDD+ countries are expected to ‘clarity/interpret’ what the Cancun safeguards mean in their country, and the ‘interpretation’ of the Cancun safeguards can be expected to vary significantly from country to country. In the final series of decisions on REDD+, agreed in Paris at COP 21, Parties to the UNFCCC developed some further guidance “on ensuring transparency, consistency, comprehensiveness and effectiveness when informing on how all the safeguards referred to in decision 1/CP.16, appendix I, are being addressed and respected.”1 As part of this guidance, the COP “strongly encourages” developing country Parties, when providing the summary of information on how the Cancun Safeguards are being addressed and respected, to include, inter alia: “A description of each safeguard in accordance with national circumstances.”2
Six countries have submitted their summaries of information to the UNFCCC information hub, which includes their ‘interpretation’ of the Cancun safeguards. From our analysis of these documents and drawing on our experience supporting several countries on this matter, we want to share the following insights:
•The purpose of the interpretation is to contextualize the general principles outlined in the Cancun safeguards into specific rights and obligations the country commits to fulfilling in the context of the implementation of the REDD+ actions. We must note that these specific rights and obligations are largely determined and informed by the existing legal obligations of the country.
•The interpretation of the Cancun safeguards varies from country to country according to country’s relevant national and international legal obligations, but there is a general shared understand of the main elements that Cancun Safeguards encompass.
•Utilising the country's legal framework [i.e. Policies, Laws and Regulations] is key for ensuring that the ‘interpretation’ of the Cancun Safeguards reflects the country’s particular national context and for managing stakeholder’s expectations. Many Countries’ legal frameworks may already recognise the rights and obligations embodied in the Cancun safeguards, but may articulate them differently in their domestic context. For instance, Cancun safeguard (c) requires that countries respect “the knowledge and rights of indigenous peoples and members of local communities”, and while some countries have important populations of indigenous peoples, and therefore recognise their rights and knowledge through domestic laws, others may not recognise the term in their legal frameworks, instead referring to and protecting the rights of ‘vulnerable groups’ or ‘ethnic minorities’
•The interpretation itself does not determine how to ensure the REDD+ activities are carried out in consistency with the safeguards. Instead, the determination of how to ensure that REDD+ activities are carried out consistently with the safeguards will be done in the preparation of the Environmental and Social Management Framework [ESMF] or through equivalent process and document.
•The interpretation is central to the preparation of the summary of information, as it helps to determine the information that should be provided to the UNFCCC to demonstrate how the safeguards are being addressed and respected. In particular it is important to emphasise that the interpretation is the main input for determining the information needs of the country’s Safeguard Information System [i.e. the information that is to provided to demonstrate that each safeguard has been addressed and respected], without which, the identification and assessment of existing and relevant information systems and sources that form the basis for the SIS is usually undertaken.
1 UNFCCC Decision 17/CP.21
2 Ibid, paragraph 5(b)
May 2018. Climate Law and Policy.
Article 15 of the Paris Agreement is a short one. It describes in two sub articles the compliance mechanism of the whole agreement.
However, as can be expected, the preparation for and attempt to finalise a text in anticipation of, the rule book is the arena of many a heated debate.
Yet one of the calmer streams is that of compliance, and not due to any agreement. It is assumed by many that the compliance mechanism of the Paris Agreement will be a weak one. While discussions still rage, politely, regarding the potential outputs of the mechanism, its linkages with other mechanisms and with other articles within the Paris Agreement, the capacity to trigger it, and so on, the bulwark against its effectiveness is accepted. That bulwark is a simple phrase, one which appears in the whole agreement twice only, the second of which is in subsection 2 of article 15, is ‘…non-adversarial and non-punitive…’. These words hold much resonance precisely because their meaning is never unpacked, always assumed, they are rarely discussed. But they are constantly used.
Whether in the submissions by the parties to the APA dealing with compliance, or through the discussions in the committee as expressed in the informal note, these words are mostly used as a gateway, determining acceptable outcomes or legitimate triggers. They are never applied as their context would indicate: as interpretative instruments.
Given the unusual language of the Paris Agreement- half legal document with a mixture of imperative and aspirational, harder and softer law, preamble and convention with no border, the usually ethereal international obligations become even harder to read. So, parties tend to fall back on their past assumptions- and often read the Paris Agreement in comparison with the Kyoto Protocol. This raises fears of hard compliance and, dare it be mentioned, enforcement.
The opposite reading to this is also not unexpected: As the Paris Agreement is a child of compromise and was passed with tears after a long session of negotiations, with many concessions, it is to be expected that it will not have teeth. Therefore, the compliance mechanism is to be read in the softest, most limiting terms possible.
It is along these lines that the negotiating groups have aligned themselves. Either seeking fuller enforcement and demanding greater powers to ensure compliance, or fearing the burdens associated with compliance and therefore seeking to limit the committee.
There is, however, a third option. One which takes into account both positions and stems from the unique structure and birthing pains of the Agreement. One that also comes very simply from a contextualised reading of this phrase.
Two facts immediately emerge: The Paris Agreement is not, cannot be, and probably will not be, Kyoto. Nor will it have the sanctioning capacity of CITES. The Compliance Mechanism will not have an enforcement branch. On the other hand, ‘Non-Adversarial and Non-Punitive’ were not meant to exclude measures. Read within their context they should be used to provide aid and facilitate, to interpret authority, direct it, not pre-emptively limit it.
The term, in other words, is meant to be used as an Ex-Post lens, not as an Ex-Ante bouncer. Yet the common perception is that the words are used to stop things from happening, not interpret actions that need to happen. This is enforced by two additional elements other than the party interpretation: the perception and position of civil society, and the ‘house of cards’ structure of the negotiations. Along with the above fear of Kyoto, and alignment of the parties, these all limit what could be a fruitful, useful international mechanism.
Civil society, most blatantly in the form of a WRI PACT paper1, pushes for sanctions which are, by definition, punitive. Phrases such as ‘the suspension of rights and privileges’, no matter the accompanying text and good intentions, tend to reinforce previously held positions of hardliners on either side of the debate. These are not only a tactical misjudgement or faults of diplomacy, but a misunderstanding of the point made above: the Paris agreement is not the Kyoto protocol. It is a tool meant to be used in a different, subtle, and equally effective way. As a general mechanism, it creates a balance of self made ambitions, complex reporting channels and varied support instruments. When imagined in the form of the Kyoto enforcement, the compliance committee ceases to function within the framework of Paris, it plays on different forms of power and triggers that simply do not, and were not meant to, exist.
This touches on the negotiations themselves. While the compliance stream is a (relatively) stable one, it cannot be denied that it lies at the centre of a house of cards. Mechanisms such as market mechanisms in article 6 under discussion with SBSTA, the enhanced transparency mechanism under the APA and more cast an eye to the type of compliance requirements that may be initiated, while the compliance stream awaits, to an extent, some of the decisions in those streams before agreement can be achieved.
Be it the human tendency to pick sides or the complexity of a truly global mechanism, the Paris Agreement rulebook, and the lynchpin in it, if to mix metaphors, depend to an unrealised extent on the compliance committee. Unrealised because of the assumption of weakness. This assumption of weakness stems from misleading ideas on its form. These ideas are, in part, due to a misinterpretation of how ‘non-adversarial and non-punitive’ are to be read.
Spinning the above on its head, from the negative to the positive, would perhaps allow the following chain of reaction to take place: If ‘non-adversarial and non-punitive’ were to be read as an interpretation of action, not a gateway to it, then more action would be permitted. And while this would be facilitative in nature, it would give the committee a modicum of influence. This would mean that the true form of the committee, its potential, distinct from Kyoto, would be better understood. And then, this stream would be less placid. Because there would be a significance to it that would include all elements of the agreement. But instead of limiting its power, discussions would centre around the safeguards needed to prevent the facilitative element of the committee from being a vehicle for ‘queue jumping’ for funding and assistance.
Belatedly such conversation may be beginning to bloom, which indicates at least that the role of the committee as a facilitator may be starting to be acknowledged. May Bangkok see this stream of negotiations more turbulent, and the other streams calmer as a result.
1http://www.wri.org/sites/default/files/mechanism-facilitate-implementation-promote-compliance-paris-agreement-design-options.pdf accessed 14/5/18.
Environmental concerns and the future of the Paris Agreement
Sebastien Korwin, a senior legal and policy advisor at Climate Law and Policy, warns that President Trump’s declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change.
What environmental issues will Donald Trump prioritise in the early days of his Presidency - e.g. infrastructure expenditure, deregulation of oil exploration - and what is likely to be the impact of these? Any other interesting trends or developments stemming from Trump’s administration that could affect the environment?
Throughout his election campaign Donald Trump made a number of statements that provided clues on the steps his administration could take with regard to the environment and, more specifically, environmental legislation. In a televised address outlining his policy plans for his first 100 days in office, he pledged to cancel funding for climate change programmes, vowed to revive the coal industry and lift restrictions on drilling for fossil fuels on federal lands to encourage an increase in shale, oil and natural gas production. Myron Ebell, a key member of Trump’s transition team, also outlined some of Trump’s plans for the United States Environmental Protection Agency (EPA), which include limiting the regulation of power plants and revising the rules on developing crucial ecosystems such as wetlands.
Trump’s cabinet nominations support this general position, with picks that include Rex Tillerson, CEO of ExxonMobil for Secretary of State, climate change denier Rick Perry for Department of Energy and Ryan Zinke, who has questioned the extent of humanity’s role in causing climate change, for Department of the Interior. His proposed attorney general, Senator Jeff Sessions has come under scrutiny for failing to disclose that he leases land to an oil company. Scott Pruitt, Trump’s pick for administrator of the EPA (a key sub-cabinet position), has actually been involved in 14 lawsuits against the EPA while Attorney General of Oklahoma, including an attempt to revoke the Clean Power Plan.
Since his inauguration on 20 January 2017, President Trump has issued his “America First Energy Plan”, which amongst others things commits to eliminating Obama’s 2013 Climate Action Plan. He has also recently signed executive orders to ‘facilitate the expeditious review’ of the permit application for the Keystone XL and Dakota Access pipelines, which had previously been put on hold by the Obama administration following major public protests.
The Trump administration has also taken some drastic measures at the EPA, including:
• the recent statement by Doug Ericksen, the communications director for Donald Trump’s transition team at the EPA, that all future studies or data from scientists at the EPA must undergo review by political appointees before they can be released to the public
• the imposition of a media blackout
• a temporary suspension of all new business at the department, including the provision of grants (such as those that support environmental testing and innovation projects) and contracts (such as hazardous waste handling and drinking water quality testing)
This apparent trend of prioritising commercial (in particular fossil fuel) interests over environmental regulation are major causes for concern, not only in terms of CO2 emissions, but also for the US environment as a whole. For instance, 7 million gallons of crude oil were spilled in more than 1,000 pipeline leaks between 2010 and 2015 alone (see High Country News, 15 June 2015). The watering down of environmental regulations and the limits being placed on the EPA are only likely to increase these occurrences.
President Trump declared during his campaign that he would seek to repeal the Paris Agreement. What would the US’s withdrawal mean for the Paris climate change agreement in general? Could it have a domino effect?
During his campaign, Donald Trump made statements that climate change is not happening or is a hoax perpetrated by China. His declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change. It has since been reported that President Trump is preparing to sign two executive orders, one to drastically reduce the US’s role in the United Nations and the other, entitled “Moratorium on New Multilateral Treaties”, calls for a review of all current and pending multilateral treaties and to consider which ones the US should leave (see “Trump Prepares Orders Aiming at Global Funding and Treaties”, New York Times, 25 January 2017). The scope of the order is intended to include all multilateral treaties that are not ‘directly related to national security, extradition or international trade’, which will likely include the Paris Agreement.
It is unlikely however, that even the withdrawal of the US would spell the end for the Paris Agreement. During the 22nd United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) held in Marrakesh in November 2016, the Chinese vice-foreign minister Liu Zhenmin made it clear that a US withdrawal would not deter China from supporting either the climate negotiations nor the implementation of the Paris Agreement.
While the withdrawal of US support (in particular, funding to poor and vulnerable countries to mitigate and adapt to climate change), would hinder efforts to implement the Paris Agreement, the willingness of major players such as China and the European Union to collaborate to drive coordinated climate action forward means that it will not suffice to kill the Agreement entirely, nor is it likely to cause a domino effect of withdrawals.
How realistic is this withdrawal and is it likely to face congressional opposition?
Trump has recently stated that he now has an ‘open mind’ with regard to US involvement in the Paris Agreement and Secretary of State Rex Tillerson told the Senate Committee on Foreign Relations during his confirmation hearing that the US should ‘maintain its seat at the table’ in the climate negotiations. He also said that the threat of global warming is real, that it ‘requires a global response’ and that ‘no one country is going to solve this on its own’.
Following the November 2016 elections, the Republican Party now has majorities in both the Congress and Senate, and has publicly declared its opposition the Paris Agreement. The degree of congressional opposition to an attempt by the Trump administration to withdraw from the Agreement would therefore depend on the Democrats. It has been argued that leaving the agreement will be simple because it hasn’t been ratified by the Senate, though in reality it may not be so simple (see “Could Trump Simply Withdraw US from Paris Climate Agreement?” Scientific American, 10 November 2016).
The Paris Agreement officially entered into force on 4 November 2016, which according to its Article 28 means that any party seeking to withdraw from it must wait three years following its entry into force to communicate their intention to withdraw. Even then the withdrawal would only take effect one year after that (for a total of four years). It has however, been argued that the US could simply withdraw from the UNFCCC altogether, which would only take one year according to Article 25 of the United Nations Framework Convention on Climate Change. As the UNFCCC is the Framework agreement, withdrawing from the Convention would also result in withdrawal from the Paris Agreement.
Could the UK, buoyed by its commitment to pursue a hard Brexit, follow suit?
In July 2016, the Prime Minister Theresa May abolished the Department for Energy and Climate Change (DECC) and merged it with the department of Business Innovation and Skills (BIS) to form the new Department for Business, Energy and Industrial Strategy, causing concern that action on climate change may be moved down the list of government priorities.
However, the UK government ratified the Paris Agreement on 18 November 2016, suggesting that Mrs May’s government intends to continue playing a role in the multilateral negotiations. Nick Hurd, Minister of State for Climate Change and Industry, was quoted as saying that ‘The UK is ratifying the historic Paris Agreement so that we can help to accelerate global action on climate change’ and that the government would ‘use this positive momentum to grow the UK low-carbon sector’ (at COP 22). It is therefore unlikely that Brexit would lead to the UK withdrawing from the Paris Agreement. On the contrary, continued diplomatic engagement in the UNFCCC would cement the UK’s position as a sovereign player, separate from the EU.
Could a UK/US trade deal prove harmful to the environment, i.e. if it results in fewer restrictions and regulations being placed on UK/US products and services?
There is no short or simple answer to this question, however, looking at the negotiations of relevant trade deals, including the Transatlantic Trade and Investment Partnership (TTIP), can provide insights as to why commentators are concerned. Following a leak by Greenpeace of 13 Chapters of the draft TTIP, it emerged that significant areas of EU legislation including on energy efficiency labels, public procurement policies, the regulation of unconventional fossil fuel extraction, on the regulation of toxic chemicals etc. have been identified by negotiators as “technical barriers to trade” to be removed. It is likely that UK/US free trade negotiations would lead to similar conclusions by US negotiators and could also lead to them calling for these “technical barriers to trade” to be removed.
Under WTO rules, states have the right to take measures to protect ‘human, animal and plant life or health’ or for the ‘conservation of exhaustible natural resources’ without these being considered breaches of free-trade rules. However, the US in all its free trade negotiations (including the North American Free Trade Agreement, TTIP, Trans-Pacific Partnership as well as its bilateral trade agreements) has insisted on the inclusion of Investor-State-Dispute-Settlement (ISDS) clauses, which grant foreign investors (i.e. US companies) the right to sue states if they believe that laws or measures of or any partner are likely to damaged their investments and reduce their expected profit. Recently these clauses have been called upon by investors facing environmental regulation around the world, resulting in huge legal costs for states. An example is the US Lone Pine energy company using the NAFTA ISDS provisions to sue the provincial government of Quebec for approximately $120 million because it suspended shale gas mining pending an environmental study in response to community concerns (ref. Lone Pine Resources Inc. v Government of Canada). It is likely that such clauses would be included in any future US/UK, thus potentially undermining any future UK environmental legislation.
Sebastien Korwin is an environmental lawyer working on international environmental policy and law in the areas of climate change, biodiversity, forest governance, REDD+ and human rights.
Climate Law and Policy (CLP) is an independent advisory organisation that helps design, implement and sustain environmental governance advancements.
Interviewed by Kate Beaumont.
This article was first published on Lexis®PSL Environment analysis on 30 January 2017.
Climate Change and Energy. Trump’s climate and energy policies.
Sebastien Korwin, senior legal and policy advisor at Climate Law and Policy.
At a glance
• Much of President Trump’s campaign trail rhetoric on the environment, and more specifically, on environmental governance and regulation is fast becoming policy, from his selection of a pro-fossil fuel cabinet and administration, to his efforts to shackle the EPA and repeal and replace key environmental legislation.
• Despite the absence of a clear official position on climate change, the Trump administration has moved to drastically reduce the US’s engagement with international organisations, including the United Nations, fuelling fear of a US withdrawal from the Paris Agreement.
• While some of Trump’s more drastic campaign declarations (such as a pledge to dissolve the EPA) are unlikely to succeed despite Republican majorities in both houses, the White House is determined to push through a deregulation agenda that will sorely test the US’s procedural (legal) and democratic checks and balances.
Throughout his election campaign, Donald Trump made numerous statements regarding his views on how the US should deal with environmental issues. This included climate change, which he famously claimed is not happening and/or is a hoax perpetrated by China. Trump even went as far as declaring that, if elected, he would withdraw from the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement.
In his contract with the American voter, a key element of his election campaign, Trump outlined some of his policy priorities, including the future of US energy and environmental policy under a Trump administration. In the document, Trump pledged to ‘lift the restrictions’ on the production of shale, oil, natural gas and coal as well as on the development of infrastructure projects ‘like the Keystone Pipeline’. He also pledged to ‘cancel billions in payments to UN climate change programs and use the money to fix America’s water and environmental infrastructure’. Such declarations are consistent with Trump’s oft-stated desire for the US to play a lesser role on the world stage, instead focusing more on its domestic affairs.
Since his inauguration on the 20th January, Trump’s actions have given a clearer picture of where his allegiances lie, from a cabinet filled with billionaires and representatives of oil and gas companies, to the flurry of executive orders designed to prop up a declining fossil fuel industry. President Trump also pledged to eliminate all ‘regulations’ by up to 75%. It is however, still unclear to what extent he will succeed in achieving this. This article analyses the steps taken by Trump on climate change, energy and environmental regulation, the potential impacts of these steps, and the likelihood of them succeeding.
Climate change and the Paris Agreement
Consistent with his campaign rhetoric, it has been reported that President Trump is preparing to sign two executive orders to drastically reduce the US’s role in the United Nations. One executive order, entitled ‘Moratorium on New Multilateral Treaties’, will require a review of all current and pending multilateral treaties with a view to identifying which ones the US should leave. The scope of the order is intended to include all multilateral treaties that are not ‘directly related to national security, extradition or international trade’, which will likely include the Paris Agreement.
However, President Trump has recently stated that he now has an ‘open mind’ with regard to US involvement in the Paris Agreement and Secretary of State Rex Tillerson told the Senate Committee on Foreign Relations during his confirmation hearing that the US should ‘maintain its seat at the table’ in the climate negotiations. He also said that the threat of global warming was real, that it ‘requires a global response’ and that ‘no one country is going to solve this on its own.’ The result of this lack of a clear or consistent White House position on the Paris Agreement means that it is not yet certain whether President Trump will take the lead on a withdrawal.
This lack of consistency is not matched by the Republican Party, which, following the November 2016 elections, has acquired majorities in both Congress and Senate. The Party has regularly voiced its opposition to the Paris Agreement, and could be instrumental in nudging the Trump White House away from the multilateral process. The degree of congressional opposition to an attempt by the Trump administration to withdraw from the Paris Agreement would therefore depend on the Democrats.
Though it has been argued that leaving the Paris Agreement will be simple because it hasn’t been ratified by the Senate, the reality is not so clear-cut. The Paris Agreement officially entered into force on 4th November, which means that (according to Article 28 of the Paris Agreement) any Party seeking to withdraw from it must wait three years following its entry into force to communicate their intention to withdraw. Even then, the withdrawal would only take effect one year after that (for a total of four years).
One way to circumvent this procedural obstacle would be for the US to simply withdraw from the UNFCCC altogether, which would only take one year according to Article 25 of the Convention. As the UNFCCC is the parent treaty, of which the Paris Agreement is considered a Protocol, withdrawing from the Convention would automatically result in a withdrawal from the Paris Agreement. While legally possible, thelikely diplomatic repercussions of such a withdrawal could be severe, and could lead to an erosion of the US’s role as the leading force in international relations. This is supported by the stated intention of major players such as China and the European Union to drive coordinated climate action forward in the absence of the US.
Despite recent news of the US state department’s refusal to meet with UNFCCC executive secretary Patricia Espinosa suggesting a shift away from US diplomatic leadership on climate change, continued membership of the Paris Agreement and even of the UNFCCC is still on the cards.
A pro-fossil fuel extraction administration
Domestically, with the support of Republican majorities in both houses, Trump has been less ambiguous regarding his environmental and energy priorities. His cabinet nominations, represent a clear positioning on the side of the fossil fuel industry, and against environmental regulation.
His picks (all since confirmed by Congress and the Senate) include Rex Tillerson, CEO of ExxonMobil for Secretary of State, and climate change deniers Rick Perry for Department of Energy and Ryan Zinke for Department of the Interior. His proposed attorney general, Senator Jeff Sessions has come under scrutiny for failing to disclose that he leases land to an oil company, while Scott Pruitt, Trump’s pick for
administrator of the EPA (a key sub-cabinet position), has been involved in 14 lawsuits against the Environment Protection Agency (EPA) during his time as Attorney General of Oklahoma, including an attempt to revoke the Clean Power Plan. Not only that, since his confirmation as head of the EPA, Pruitt has denied the link between carbon dioxide and climate change, a position that is clearly at odds with that of the EPA he is now running.
Finally, Trump’s likely pick for science advisor (not yet confirmed), Princeton Physicist, William Harper, is also a notorious climate change denier with suspected links to the fossil fuel industry.
An ‘America first’ energy plan
President Trump has also released his ‘America First energy plan’, which commits to eliminating ‘harmful and unnecessary policies such as the Climate Action Plan and the Waters of the US rule’.
The 2013 Climate Action Plan, introduced by President Barack Obama, presents a three-pronged approach to tackling the climate challenge, namely:
• Reducing carbon pollution in the US through measures including: the development of pollution standards for power plants and fuel economy standards for heavy goods vehicles; stimulating investment in energy efficiency projects and support for research and development in lowcarbon technologies; increasing the number of renewable energy installations on public land and military bases and improving the energy efficiency of buildings. The plan also created a mandate to develop strategies to tackle highly potent greenhouse gases (GHG), including methane, and to protect forests and critical landscapes.
• Preparing the US for the impacts of climate change through measures including: supporting climate-resilient investment; developing flood-risk reduction standards; improving the climate resilience of agriculture through additional research and by expanding and prioritising forestand rangeland restoration efforts.
• International efforts to address climate change. The final component of the Climate Action Plan calls for the United States to lead in addressing global climate change internationally, including by: expanding major new and existing international initiatives, including bilateral initiatives and leading global sector public financing towards cleaner energy.
President Trump has yet to repeal the Climate Action Plan, but has acted on the second pledge of his energy plan, signing an executive order to begin the repeal of the Clean Water Rule. The order itself does not repeal the regulation, but it instructs the EPA to reconsider the rule, also known as Waters of the United States. The rule defines which rivers, streams, lakes and marshes fall under the jurisdiction of the EPA and the Army Corps of Engineers, a definition which was sorely needed as the Clean Water Act only mentions that the jurisdiction applies to ‘waters of the United States.’ When the rule was published in June 2015, it was strongly contested by farm and industry groups, who have labelled it a power grab by Washington, expanding the EPA’s jurisdiction to ‘swoop in and penalize landowners.’ The rule however, has not taken effect yet and is still subject to court proceedings.
Given that this rule has been in place since 2015 it will cannot be considered ‘recently finalized’, and therefore cannot be repealed under the 1996 Congressional Review Act, a law that allows the House and Senate to overturn any ‘recently finalized’ regulation with simple majority votes in both chambers, provided the president agrees. In the absence of such an option, the process to replace the Clean Water Rule could take months if not years, given its highly technical nature and the federal rulemaking process.
Although President Trump’s energy plan notes that satisfying the need for energy ‘must go hand-in-hand with responsible stewardship of the environment’ and that ‘protecting clean air and clean water, conserving our natural habitats, and preserving our natural reserves and resources will remain a high priority’, his actions suggest otherwise. Recently signed executive orders to ‘facilitate the expeditious review’ of the permit application for the Keystone XL and Dakota Access pipelines, (which had previously been put on hold by the Obama administration following major public protests) are major concerns, not only in terms of CO2 emissions, but also for the future of the US environment as a whole, as 7 million gallons of crude oil were spilled in more than 1,000 pipeline leaks between 2010 and 2015 alone.
The Trump administration has also committed to ‘reviving America’s coal industry’ which includes a commitment to ‘clean coal technology.’ Apart from the disputes over whether coal can ever be truly clean, according to a 2016 report by Case Western Reserve University, the US coal industry’s decline can be attributed to the recent abundance of cheap natural gas, a product of the US hydraulic fracturing boom (a process for extracting previously inaccessible natural gas from underground shale formations, also known as fracking), rather than excessive regulation by the EPA. Thanks to the abundance and low price of natural gas, electric power companies (major clients of the coal industry) are using more of it to generate electricity.
Trump’s support for the coal industry is further evidenced by his plan to end the moratorium on new coal mining on federal land, in place since early 2016 and his support for the repeal of the ‘Stream Protection Rule’ in February. This rule increased the procedural requirements that should be met to obtain permits for the development of new coal mines. The intention behind the rule was to ensure that the ‘hydrological balance’ of local waterways would not be affected by new coal mine developments. The Stream Protection Rule was only finalised in late 2016, making it eligible for repeal under the Congressional Review Act.
Shackling the EPA
Another sign of Trump’s commitment to the coal and fossil fuel industry is his attack on the EPA. During a Fox News debate, Trump declared: ‘Department of Environmental Protection [sic]—we’re going to get rid of it in almost every form.’ However, President Trump cannot eliminate the EPA on his own—he needs Congress both to introduce and pass legislation. Even with Republicans in control of the House and Senate,he likely would not have enough votes to survive a filibuster.
In addition to his appointment of a vocal opponent of the EPA as its head, the Trump administration has:
• Stated that all future studies or data from scientists at the EPA must undergo review by political appointees before they can be released to the public.
• Imposed a media blackout on EPA staff.
• Temporarily suspended all new business activities at the department, including the provision of grants (such as those that support environmental testing and innovation projects) and contracts (including hazardous waste handling and drinking water quality testing).
• Declared that the EPA will start operating in a way more favourable to the agricultural industry and the business community as a whole.
Trump is also planning to significantly cut the EPA’s budget, with cuts to programmes such as grants for clean-up work at industrial waste sites, the Energy Star energy efficiency programme, climate change efforts and funding for Alaskan native villages. Unfortunately, while Trump may not be able to dissolve the EPA outright, he can significantly affect its ability to fulfil its mandate by cutting its budget with the support of Congress.
The Clean Power Plan
While not a foregone conclusion, many observers fear that the Republican congressional majority will assist the White House in pushing these measures through. Republicans in Congress are famously hostile to environmental regulation, particularly attempts to limit GHG emissions. Republicans have for instance introduced a bill to rewrite the Clean Air Act, which if passed, would seriously constrain the EPA’s ability to regulate carbon pollution, a key component of the Clean Power Plan. This measure aligns with Trump’s intention to sign an executive order to repeal the Clean Power Plan.
The controversial element of the Clean Air Act is the lack of clarity surrounding the term ‘air pollutant’, whose regulation is part of the EPA’s mandate. In 2007, 12 states, led by Massachusetts, sued the (Bush-era) EPA for its failure to act to mitigate the effects of climate change. The Supreme Court ruled that the EPA had to determine whether GHG emissions endanger public health and welfare. In the event of a positive finding (of endangerment), carbon dioxide and other GHG would qualify as ‘air pollutants’ and must be regulated according to the Clean Air Act. In 2009, the (Obama-era) EPA issued an endangerment finding that GHG do pose a threat to the public via climate change.
The current Republican proposal is to explicitly define the term ‘air pollutant’ to exclude carbon dioxide, water vapour, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulphur hexafluoride. The bill also explicitly excludes action on climate change or global warming from the scope of the Clean Air Act ‘or any other law,’ effectively blocking any and all action on climate change if passed. So far, this bill has been assigned to four House committees, and at least three of those have no plans to take up the bill. In general, this bill is likely to be almost unanimously rejected by Democrats, with even some moderate Republicans potentially also opposing it.
So far, less than two months into his term, President Trump has backed up much of his anti-environmental regulation campaign rhetoric. The biggest immediate threat to US action on the environment is that Trump, supported by Congress, will refuse to take the lead or even attempt to undermine the international climate regime. While the withdrawal of US support (particularly funding to poor and vulnerable countries to mitigate, and adapt to climate change), would hinder efforts to implement the Paris Agreement, the willingness of major players such as China and the EU to collaborate to drive coordinated climate action forward means that it will not suffice to kill the Paris Agreement entirely, nor is it likely to cause a domino effect of withdrawals.
At home, despite enjoying Republican majorities in Congress and Senate, attempts to repeal or replace primary environmental legislation such as the Clean Air Act, are likely to be strongly contested by the Democrats and are far from guaranteed. Regarding secondary legislation, apart from those regulations that fall under the scope of the Congressional Review Act, rescinding and replacing EPA rules and regulations is a lengthy process, which will include public consultations and is likely to be further delayed by litigation.
Both at home and abroad, Trump faces significant procedural, judicial and diplomatic challenges to his agenda of total deregulation of environmental rules. It will take sustained opposition both within Congress and from civil society, but the full implementation of the Trump agenda is not inevitable.
This article was first published on UKELA. (March/April 2017). Climate Change and Energy. e-law issue 99
Environment analysis: Daniela Rey Christen, founding director of Climate Law and Policy, and Sebastien Korwin, the organisation's legal and policy advisor, argue that there is still a considerable amount of work to define the specific rules and guidance necessary to implement the Paris Agreement and therefore the Conference of the Parties (COP) 22 will focus on making progress towards the development of these rules and guidance.
What is the purpose of the COP and what is likely to be on the agenda at COP 22?
The COP is the supreme body of the UN Framework Convention on Climate Change (UNFCCC) (as set out in UNFCCC, art 7). Its mandate is to 'keep under regular review the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt' and to 'make, within its mandate, the decisions necessary to promote the effective implementation of the Convention.'
The negotiations in Marrakesh will focus on numerous issues, including:
- enhanced action prior to 2020
- the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts
- development and transfer of technologies
- matters relating to finance (long-term climate finance and matters related to the functioning of the Green Climate Fund)
- the implementation of the Paris Agreement--key issues that will be discussed under this include:
- the contents of nationally determined contributions (NDC)
- the type of information to be contained in the adaptation communications
- the modalities and rules for cooperative mechanisms (sustainable development mechanism)
- modalities of the global stocktake and preparation for the facilitative dialogue in 2018, and
- the transparency framework (reporting)
What preparations have been made for the entry into force of the Paris Agreement, which was agreed at COP 21?
Article 21 of the Paris Agreement states that it shall enter into force on the thirtieth day after the date on which at least 55 parties to UNFCCC, accounting in total for at least an estimated 55% of the total global greenhouse gas emissions, have deposited their instruments of ratification, acceptance, approval or accession.
On 21 September 2016, representatives of 31 countries deposited their instruments of ratification, at which point the first requirement that 55 parties to the UNFCCC should ratify the Paris Agreement for it to enter into force, had been met.
At the beginning of October 2016, additional parties deposited their instrument of ratification, starting with India on 2 October 2016, the EU on 5 October 2016 and Canada. Following this, the second threshold--the emissions threshold--was met, triggering the entry into force of the Agreement 30 days thereafter, on 4 November 2016.
How does COP 22 compare with COP 21? What similarities and differences will there be with regards to expected outcomes?
At COP 21, parties to the UNFCCC were able to adopt an international agreement which is widely seen as a milestone in the global endeavour to respond to climate change. The Paris Agreement constitutes a universal and binding agreement with specific long-term goals.
Although the Paris Agreement enters into force on 4 November 2016, the Agreement only contains the broad framework to guide country efforts, and there is still a considerable amount of work to define the specific rules and guidance necessary to implement it (and to report on its implementation). COP 22 will therefore be focused on making progress towards the development of these rules and guidance.
In 2016, a dedicated working group on the Paris Agreement was established, which met in May 2016 and will do so again at the COP in Marrakesh in November 2016.
What is the significance of the Global Climate Action (GCA) Roadmap?
At COP 21, 'Climate Champions' Laurence Tubiana, French Ambassador for Climate Change, and Hakima El Haité, Minister Delegate in charge of the Environment to the Ministry of Energy, Mines, Water and the Environment of Morocco,adopted a GCA Agenda to boost cooperative action among governments, cities, businesses, investors and citizens to reduce emissions and help vulnerable countries adapt to climate impacts.
The two champions have also released a GCA Roadmap for the Agenda and launched a consultative process to seek views of governments and other stakeholders on their vision. The Agenda also features a calendar of events to be held ahead of COP 22.
The GCA Roadmap offers a unique opportunity to help mobilise support for further action from not only parties, but also from non-party stakeholders, thereby promoting private sector engagement and voluntary initiatives. The GCA Agenda and Roadmap provide a bridge and a connection between the UNFCCC and the many voluntary and collaborative actions needed to achieve the goals of the Paris Agreement.
How can resources of implementation be made available to effectively support the implementation of the Paris Agreement?
Capacity building had in the past been another low-profile element of the UN climate regime's support structure. While developed countries had always recognised capacity building to be an essential element of the Paris Agreement, developing countries had never managed to bring the issue on top of the agenda. Consistent progress had been made over the past years, with the Durban Forum on Capacity-Building, a multi-stakeholder forum for sharing ideas and lessons learned, being the most visible outcome in 2011.
The Paris Agreement finally recognises the importance of the issue, and sets out the Paris Committee on Capacity Building (PCCB), to ensure that all countries can meet their commitments. The PCCB will oversee a four-year work plan,starting in 2016, to address gaps and needs, and ensure coordination of efforts in capacity-building activities in developing countries. The Subsidiary Body for Implementation (SBI) will develop the terms of reference for the PCCB, with the expectation that parties will formally adopt them at COP 22.
In terms of the way forward, the PCCB will follow a work plan in the period of 2016-20, with a number of different issues related to the existing capacity building framework under the UNFCCC, as well as capacity gaps that should be addressed by parties. Each year, the PCCB will focus on a special topic, and hold annual in-session meetings where these areas can be addressed. The SBI is tasked to develop terms of reference for the newly-established body to be approved by COP 22 in 2016.
Concerning technology transfer and development, the Paris Agreement provides a long-term vision for developing new technologies and enabling the transfer of these technologies from the developed to the developing world in order to help nations mitigate and adapt to climate change. Ahead of the first meeting of the Parties, the Subsidiary Body for Scientific and Technological Advice must lay out the details of a framework to support this goal.
A key condition for successful implementation of the Paris Agreement is the provision of adequate and sustainable financial support for capacity building and technology and transfer. This will enable developing countries to significantly strengthen or scale up their efforts to build robust domestic and international measurement, tracking, reporting and verification systems, as well as more robust domestic and regulatory processes.
Various initiatives have been established since the Paris climate negotiations to build this capacity. The US, Canada and the UK have already pledged about $35m to the Capacity Building Initiative for Transparency, established under the Paris Agreement, through the Global Environment Facility. In addition, the Children's Investment Fund Foundation (CIFF),Germany, Italy and the ClimateWorks Foundation have pledged $16m to the Initiative for Climate Action Transparency,which works to provide policymakers around the world with tools and support to measure and assess the effects of their climate actions.
What impact will Brexit have on COP 21, the Paris Agreement and the UK's input to COP 22?
In international climate change negotiations, common EU positions are agreed upon in advance by the Member States, with the participation the Commission. The country holding the Presidency of the EU, a position that rotates every six 3 months, coordinates the members and presents the EU position at the international negotiations (see S Oberthur and H Ott (1999) The Kyoto Protocol: International Climate Policy for the 21st Century).
Although not explicitly stated in Article 50 of the Treaty on European Union, it would appear that until the exit negotiations are completed, the UK is still a full Member State, and as such should follow the current negotiating conventions, meaning that for COP 22 at least, it follows the common EU position.
Ahead of COP 21, the EU, on behalf of all its Member States (including the UK), submitted its Intended Nationally Determined Contribution commitment (INDC) which sets out its ambition for 2030 of achieving 'at least 40% domestic reduction in greenhouse gas emissions by 2030 compared to 1990'. This INDC became an NDC (without 'intended') following the ratification of the Paris Agreement by the EU.
The Paris Agreement has specific provisions for the joint fulfilment of objectives by Member States of 'regional economic integration organisations', which are also parties to the Paris Agreement (eg the EU)--see the Paris Agreement, art 4,paras 16-18. Under such provision, the EU is required to notify the UNFCCC of the emissions level allocated to each party. In order for this to be achieved, there needs to be agreement on the individual Member State targets.
Given that the EU INDC became an official commitment at the time of ratification, it is perfectly feasible for the UK to decide to complete the commitment period based on the Member State target that is to be negotiated internally within the EU. In addition, the EU's (and therefore the UK's) commitment period is up to 2030, which means that the UK and the EU would be bound by the targets set in this commitment up to 2030, and afterwards could go their own way. That said, each Member State's legislature also needs to ratify the Paris Agreement, though it is unlikely that the UK parliament would refuse to do so.
Daniela Rey Christen is an international environmental lawyer with over 12 years' experience in policy and legal development and strengthening in the areas of climate change, forest governance, REDD+, human rights and procedural rights. Daniela currently serves as a senior consultant for the UN Institute for Training and Research, and supports the conceptualisation and delivery of innovative climate change training materials.
Sebastien Korwin is an environmental lawyer working on international environmental policy and law in the areas of climate change, biodiversity, forest governance, REDD+ and human rights.
Climate Law and Policy is an independent advisory organisation that helps design, implement and sustain environmental governance advancements.
Interviewed by Kate Beaumont.
This article was first published on Lexis®PSL Environment analysis on 3 November 2016.