Paris Agreement for Global Greenhouse Gas Emission Reductions

What does the Paris Agreement mean for global climate change mitigation ?  Many writings on the subject came to the fore in all media worldwide.  We selected this article below for its intensiveness as well as its comprehensiveness of analyses.  It was published by mondaq on 12 December 2015 and last updated on 30 December 2015.

Paris Agreement Sets The Stage For Global Greenhouse Gas Emission Reductions

Article written by Mary Beth Deemer, Charles T. Wehland, Alina Fortson, Brian L. Greenert, Jennifer M. Hayes and Anna Claire Skinner for Jones Day.

195 countries adopted the first global agreement addressing climate change. The Paris Agreement was adopted following two weeks of negotiations during the 21st Conference of the Parties ("COP21") to the United Nations Framework Convention on Climate Change ("UNFCCC"). The Agreement marks the first time that developed and developing countries have joined together to address what the Parties consider "an urgent and potentially irreversible threat to human societies."

The Agreement's goals are lofty.

First, the Agreement seeks to limit the increase of the global average temperature to well below 2°C over pre-industrial levels.

ii. The Parties also committed to "pursue efforts" to limit warming to only 1.5°C above pre-industrial levels.

iii. Second, each Party aims to reach peak greenhouse gas emissions as soon as possible.

iv. Finally, the Agreement endeavours to reach "net zero" emissions by 2050, taking into account the balance of anthropogenic emissions by sources and greenhouse gas removals by sinks, such as forests.v

Substance of the Agreement

Under the Paris Agreement, each individual country will submit an Intended Nationally Determined Contribution ("INDC"), or an emissions pledge it intends to achieve based on its analysis of what is feasible. INDCs are not legally binding, and there are no penalties for a country that fails to meet its pledged emissions target. INDCs are supposed to represent a country's "highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances."vi The INDCs will be communicated by each Party through a submission portal and will be published online by the United Nations Framework Convention on Climate Change.

One hundred and eighty countries have already submitted INDCs for the first cycle beginning in 2020. Developed countries will undertake absolute emissions reduction targets, while developing countries are encouraged to move to absolute targets over time. Since these pledges are currently not enough to keep warming below 2°C, the Agreement establishes a ratcheting mechanism where each country must review its pledge every five years, starting in 2020, to determine if it can achieve a more stringent emissions pledge. While countries will not be required to state a new goal, there will be pressure to submit a new, more stringent emissions pledge. The ratcheting mechanism was a point of contention because large, developing countries did not want a system that would pressure them to establish more stringent emissions targets within the next decade. The United States was a proponent of the ratcheting mechanism and argued that as a nation starts down the path of reducing carbon emissions and expanding renewable energy, the process becomes easier and nations can reach targets more quickly than expected.

The Agreement also creates a "stocktake" event that will first occur in 2023 and every five years thereafter. At this meeting, the parties to the Agreement will assess collective progress toward the Agreement's long-term goals. The stocktake will help determine whether the world needs to do more to address climate change. At these meetings, attendees should consider "mitigation, adaptation, and the means of implementation and support."vii The dialogue and outcomes from these stocktake meetings will then help inform countries as they review their pledges every five years under the ratcheting mechanism. While the first stocktake is not until 2023, the Agreement calls for a "facilitative dialogue" to convene in 2018 to assess progress toward long-term climate goals.

Shifting Global Approach

The Paris Agreement potentially represents a shift in the global approach to address climate change. Unlike the 1997 Kyoto Protocol and subsequent Doha Amendment, the Paris Agreement does not specify quantified reductions. Furthermore, unlike the Kyoto Protocol, the Paris Agreement does not focus on emissions targets only for specified developed nations. Instead, the Agreement employs transparency through emissions reporting as a basis for creating accountability and pressure on developed and developing nations. Thus, public recordkeeping and diplomatic considerations are the incentives for nations to meet their INDC commitments. The shift away from legally binding commitments reflects the reality that nation-level policies are likely to be the most effective mechanism for implementing emissions-reducing measures on a global scale.

The Paris Agreement also signals a shift in U.S. participation and leadership on global climate change. During negotiations, the U.S. joined a loose alliance known as the "High-Ambition Coalition" with the EU, Latin American countries, and least-developed nations, which shifted traditional negotiation positions of developing countries like China and India. The result of this change in U.S. policy was an increase in the coalition's negotiating power, which led to an agreement that commits both developed and developing nations to significant emissions reductions. Furthermore, U.S. local, private sector, and citizen action have augmented federal policy supporting climate action. In addition to corporate support voiced through signing the White House's American Business Act on Climate Pledge, 117 U.S. mayors have signed the compact of mayors pledge, and seven states have signed the Under-2 MOU, which commits states to cut greenhouse gas emissions 80 to 95 percent below 1990 levels and other actions. Similarly, 311 colleges and universities have joined the American Campuses Act on Climate Pledge to support climate action.

Transparency and Trading

The United States argued that the Paris Agreement needed a strong transparency mechanism, like an outside agency, to track each nation's progress toward its INDC. Developing countries like China and India did not want a formal, third-party oversight system. Article 13 calls for a transparency system that will be implemented in a "facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, and avoid placing undue burden on Parties." The specific reporting and monitoring measures have yet to be determined, although the Agreement provides that parties should regularly supply a national inventory report of anthropogenic emissions by sources and removals by sinks of greenhouse gases and information necessary to track progress in achieving their INDC.

Prior to the Paris Agreement, the Copenhagen and Cancun agreements established an accountability mechanism based on countries reporting emissions, reduction measures, and estimates of ability to achieve national targets. The mechanism includes an independent review of country reports and a public review of the reports. Under this system, developed and developing nations receive differential treatment.viii The Paris Agreement bolsters this mechanism by requiring, among other things, an emissions inventory every two years that meets the Panel on Climate Change greenhouse gas emissions reporting guidelines and uses a common accounting framework. Under the Agreement, the distinction between developed and developing nations remains, but the transparency mechanisms are meant to apply to both.

While it does not require any form of carbon trading, the Paris Agreement embraces the idea of voluntary carbon trading by allowing countries to pursue cooperative approaches and to use "internationally transferred mitigation outcomes" ("ITMOs") to implement their INDCs. ITMOs are a new category of carbon assets that will require significant efforts to create standards that facilitate trade.

Legal Status of the Agreement

The Agreement has both binding and nonbinding provisions. The binding provisions are mostly procedural and include commitments to (i) submit an INDC, (ii) submit an updated INDC every five years, (iii) demonstrate a progression in subsequent INDCs, (iv) pursue domestic measures to achieve INDCs, and (v) submit emissions inventories and information necessary to achieve INDCs.ix The actual emissions reduction targets, however, are not binding. Further, the Agreement does not regulate private entities directly; private entities will be subject to the regulatory schemes of the individual Parties.

The Agreement will enter into force after at least 55 Parties representing at least an estimated 55 percent of total global greenhouse gas emissions have ratified, accepted, approved, or acceded to the Agreement.x Each Party has its own methods for formally concluding the treaty. The estimated percentages of global greenhouse gas emissions for each Party are collected and tracked by the UNFCCC.

The Obama administration has taken the position that the Agreement is not a treaty requiring U.S. Senate approval, primarily on the grounds that most provisions of the Agreement are not legally binding or are already authorized by existing law. Republicans currently have a majority in the Senate, making it unlikely that Senate approval could be obtained if necessary. It seems unlikely that Congress will commence a formal attack, such as a lawsuit, with regard to the Agreement's legal status. The Obama administration is therefore expected to implement the Agreement during the remainder of the President's term. Following the 2016 election, however, the new administration may choose to withdraw from, or otherwise curtail implementation of, the Agreement.

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