In Brief: Legal Options for U.S. Acceptance of a New Climate Change Agreement
By Daniel Bodansky, Sandra Day O’Connor College of Law, Arizona State University
U.S. acceptance of the new climate agreement being negotiated under the United Nations Framework Convention on Climate Change (UNFCCC) may or may not require legislative approval, depending on its contents. U.S. law recognizes several routes for entering into international legal agreements. The president would be on relatively firm legal ground accepting a new climate agreement with legal force, without submitting it to the Senate or Congress for approval, to the extent it is procedurally oriented, could be implemented on the basis of existing law, and is aimed at implementing or elaborating the UNFCCC. On the other hand, if the new agreement establishes legally binding emissions limits or new legally binding financial commitments, this would weigh in favor of seeking Senate or congressional approval. However, the exact scope of the president’s legal authority to conclude international agreements is uncertain, and the president’s decision will likely rest also on political and prudential considerations.
The brief is based on the report, Legal Options for U.S. Acceptance of a New Climate Change Agreement, which provides a fuller legal analysis.
Legal Options for U.S. Acceptance of a New Climate Change Agreement
By Daniel Bodansky, Sandra Day O’Connor College of Law, Arizona State University
The success of ongoing negotiations to establish a new global climate change agreement depends heavily on the agreement’s acceptance by the world’s major economies, including the United States. The new agreement is being negotiated under the United Nations Framework Convention on Climate Change (UNFCCC), a treaty with 195 parties that was ratified by the United States in 1992 with the advice and consent of the U.S. Senate. U.S. acceptance of the new agreement may or may not require legislative approval, depending on its specific contents.
U.S. law recognizes several routes for entering into international agreements. The most commonly known, under Article II of the Constitution, requires advice and consent by two-thirds of the Senate. In practice, however, the United States has accepted the vast majority of the international agreements to which it is a party through other procedures. These include congressional-executive agreements, which are approved by both houses of Congress, and presidential-executive agreements, which are approved solely by the president.
The President would be on relatively firm legal ground accepting a new climate agreement with legal force, without submitting it to the Senate or Congress for approval, to the extent it is procedurally oriented, could be implemented on the basis of existing law, and is aimed at implementing or elaborating the UNFCCC. On the other hand, if the new agreement establishes legally binding emissions limits or new legally binding financial commitments, this would weigh in favor of seeking Senate or congressional approval. However, the exact scope of the President’s legal authority to conclude international agreements is uncertain, and the President’s decision will likely rest also on political and prudential considerations.
Statement of Bob Perciasepe
President, Center for Climate and Energy Solutions
March 31, 2015
On the U.S. announcement of its intended contribution to a new international climate agreement due this December in Paris:
“The United States took a vital step today to strengthen climate action both here and abroad.
The U.S. target will drive investment at home in efficiency and clean energy, and leverage those investments to promote stronger action globally. By stepping up early with an ambitious contribution, the U.S. is encouraging other countries to do their fair share, too. If China and the other major economies come through, we have a good shot at a meaningful agreement in Paris.
It’s clear the Paris process is already catalyzing countries to set goals for all to see. But beyond a new set of national targets, the Paris agreement needs mechanisms holding countries accountable for their promises. And it should be built to last, regularly bringing countries back to the table to assess progress and keep strengthening their efforts.”
Contact: Laura Rehrmann, firstname.lastname@example.org or 703-516-0621
About C2ES: The Center for Climate and Energy Solutions (C2ES) is an independent, nonprofit, nonpartisan organization promoting strong policy and action to address the challenges of energy and climate change. Launched in 2011, C2ES is the successor to the Pew Center on Global Climate Change. Learn more at www.c2es.org.
Leaders at the February 2015 UNFCCC conference in Geneva. Photo courtesy UNFCCC.
The final year of U.N. talks aimed at producing a new global climate agreement kicked off this week in Geneva. As negotiators wrestle with the working draft of the new agreement, it’s clear that all the core issues remain very much in play.
The talks, under the U.N. Framework Convention on Climate Change (UNFCCC), were launched in 2011 in Durban, South Africa, and are to conclude this December in Paris. The aim is a post-2020 agreement “with legal force” and “applicable to all.”
The more immediate goal in Geneva is to produce a “draft negotiating text,” which technically must be in circulation at least six months before Paris. But the text emerging from Geneva will be very far from a finished product. The starting point this week was a 39-page collection of parties’ proposals forwarded from COP 20 in December in Lima. By mid-week, the working draft had grown to nearly 90 pages.
The unwieldy text reflects the wide disparities remaining on all the core issues in shaping the Paris agreement.
Countries will soon begin submitting their “intended nationally determined contributions” to the agreement. That these INDCs (focused primarily on constraining greenhouse gas emissions) will be “nationally determined” suggests that the agreement will have a strong “bottom-up” character. Much of what’s at issue is whether and how to blend in “top-down” elements to create a hybrid agreement that delivers both broad participation and stronger ambition.
Negotiators heading to Lima for the annual U.N. climate summit face a certain paradox. There are encouraging signs of growing momentum toward a new global climate deal late next year in Paris. Yet over the next two weeks in Lima, the negotiators may make only modest progress at best.
There are good reasons to be hopeful.
First, recent events and announcements have strengthened confidence in prospects for Paris. These include the U.N. leaders summit in New York, nearly $10 billion in pledges to the new Green Climate Fund, Europe’s decision on a 2030 emissions goal, and the joint announcement by the U.S. and China of their post-2020 targets.
Second, the negotiations throughout this year have been notably civil and substantive. Wide gulfs remain, but rather than succumbing to procedural fights, parties have been putting forward and constructively debating concrete ideas for the Paris agreement.
Third, behind the scenes, there is a fair degree of convergence among key countries on the broad outlines of a Paris deal. This is reflected in a recent report from the co-chairs of Toward 2015, an informal dialogue among officials from 20+ key countries organized by C2ES.
Nineteenth Session of the Conference of the Parties to the
United Nations Framework Convention on Climate Change (COP 19)
November 11-22, 2013
Governments meeting at the United Nations Climate Change Conference in Warsaw eked out a modest package of decisions that keep the international climate negotiations on track but underscore the formidable challenges facing parties as they work toward a new global agreement in Paris in 2015.
The Warsaw conference – known formally as the Nineteenth Session of the Conference of the Parties to the U.N. Framework Convention on Climate Change (UNFCCC), or COP 19 – marked the midpoint in a round of talks launched two years ago in Durban. While there was as usual a host of issues at play, a central focus of the Warsaw conference was defining a clearer path for the final two years of the so-called Durban Platform negotiations. In contentious talks that ran a full day longer than planned, parties set a loose timeline for proposing their “intended nationally determined contributions” to the 2015 agreement: by the first quarter of that year for those “ready to do so.” But their decision very carefully avoided prejudging the ultimate shape of a Paris accord.
The other major issues in Warsaw were demands from developing countries for increased climate finance, and for a new mechanism to help especially vulnerable nations cope with unavoidable “loss and damage” resulting from climate change. Countries had agreed a year earlier to address “loss and damage” in Warsaw, and the issue took on new prominence when Typhoon Haiyan struck the Philippines just days before the conference.
Developed countries, which had previously promised to mobilize a total of $100 billion a year by 2020, refused to set a quantified interim goal for ramping up climate finance. And the new “Warsaw international mechanism for loss and damage associated with climate change impacts” fell well short of what vulnerable countries wanted. It establishes a new forum to provide information and expertise, and to consider further steps, but makes no promise of additional funding.
Substantively, the Warsaw conference was the least consequential COP in several years. In 2009, the Copenhagen summit produced a comprehensive political agreement among leaders that a year later was translated into formal COP decisions in Cancún. A pivotal package deal the following year at COP 17 in Durban kept the Kyoto Protocol alive through 2020 and launched the Durban Platform round to negotiate a successor agreement. And COP 18 in Doha delivered the formal amendment needed to legally establish the Kyoto Protocol’s second commitment period. By comparison, the progress achieved in Warsaw was largely procedural.
As a window on the two years leading to Paris, the Warsaw meeting underscored the tremendous distance still to be covered on core issues such as the legal character of a new agreement and the differentiation of developed and developing country obligations. The hard-fought outcome effectively preserved the vague but delicate balance struck on those issues two years earlier in Durban. The one significant new substantive element was the indication that countries’ individual contributions to the Paris agreement will be “nationally determined.”
The debate, however, did reveal shifts in countries’ historic positioning. The United States and the European Union were more closely aligned than in the past in their visions of a global climate deal. And the once strongly unified Group of 77/China showed growing rifts, with many smaller developing countries showing greater flexibility than major powers like China, India, and Brazil.
Expectations will be much higher next year, with U.N. Secretary General Ban Ki-moon convening a leaders summit in September to build political momentum going into COP 20 in December in Lima, where parties are to begin drafting the Paris agreement.
Following is a summary of key outcomes (for decision texts, see http://unfccc.int/2860.php#decisions).
Ad Hoc Working Group on The Durban Platform for Enhanced Action
In Durban, parties set a 2015 deadline for an agreement covering the post-2020 period, in the form of a “protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties.” This formulation implied a major turning point in the evolution of the UNFCCC, in particular by eschewing the strict differentiation between developed and developing countries reflected in the Kyoto Protocol (which set legally binding emission targets for the former and no new commitments for the latter).
In talks leading up to Warsaw, there appeared to be growing consensus toward a “hybrid” approach in which countries would define the content of their individual mitigation commitments unilaterally, subject to international rules to ensure the transparency of national commitments and to track their implementation. As a step in that direction, parties would present their intended commitments ahead of Paris to give one another the opportunity to assess their adequacy and fairness. In seeking to define that pre-Paris process, the parties’ aim in Warsaw was ostensibly procedural, but the debate was heavily freighted with substantive implications.
For instance, China and other large developing countries proposed an explicit differentiation between intended “commitments” from developed countries and intended “actions” from developing countries. The European Union, meanwhile, preferred “proposed,” rather than “intended,” commitments, to leave open the possibility that national proposals would be revised before being inscribed in the new agreement.
The cumbersome compromise calls on parties to “initiate or intensify domestic preparations for their intended nationally determined contributions,” and to communicate them “well in advance” of the Paris meeting – adding, parenthetically, “by the first quarter of 2015 by those Parties ready to do so.”
The term “contributions,” originally introduced by the United States, avoids any explicit differentiation between developed and developing countries, and leaves open the question of their ultimate legal character. (Indeed, the one-sentence formulation twice invokes the phrase “without prejudice to the legal nature of the contributions.”) Countries’ contributions will be offered “in the context” of adopting a new instrument “under the Convention,” a formulation that allows developing countries to continue to maintain (as Bolivia and Cuba did in interpretive statements they made for the record) that commitments in the new agreement must be differentiated.
Although the decision does not establish any formal process to review parties’ intended contributions, it calls for a decision at COP 20 spelling out the information to be provided when putting them forward, so that parties can better understand and assess one another’s proposals. The decision also urges developed countries to provide support enabling developing countries to develop their intended contributions.
Loss and damage
Small-island states and other particularly vulnerable developing countries have pressed for years for greater attention to “loss and damage” resulting from extreme events and slow-onset impacts such as sea-level rise, which will be unavoidable even with strong mitigation and adaptation efforts. Parties agreed at COP 18 to reach a decision in Warsaw on “institutional arrangements” addressing loss and damage, and Typhoon Haiyan put the issue front and center.
While some members of the Alliance of Small Island States (AOSIS) came to Warsaw pushing for a “compensation” mechanism, the United States and other developed countries were adamantly opposed, and the idea faded early in the COP. Parties agreed to establish the “Warsaw international mechanism for loss and damage associated with climate change impacts” to share information and best practices, explore strategies to address loss and damage, and provide technical support to vulnerable countries.
The United States, while expressing strong sympathy for the plight of vulnerable countries, fought hard to circumscribe the new mechanism. It insisted that the new mechanism be subsumed “under” the existing Cancún Adaptation Framework – and not, as AOSIS countries wanted, be a new “pillar” of the Convention, with its executive committee reporting directly to the COP. The U.S. formulation prevailed, but in a last-minute compromise, parties agreed to revisit the mechanism and its structure at COP 22 in 2016.
As part of the Copenhagen and Cancún agreements, developed countries pledged $30 billion in climate finance from 2010 through 2012 (the “fast start” period) and to mobilize $100 billion a year in public and private finance for developing countries by 2020. Developing countries, concerned by a lack of progress in ramping up finance, pushed in Warsaw for an interim goal of $70 billion by 2016, but developed countries refused.
Developed countries did agree to begin submitting new biennial reports outlining their strategies for scaling up climate finance. And to ensure continued high-level attention to the issue, the COP decided to convene a biennial ministerial dialogue on climate finance running from 2014 to 2020. The COP also concluded arrangements with, and provided initial guidance to, the new Green Climate Fund launched in Cancún.
Measurement, Reporting and Verification
A key component of the Cancún Agreements was a new set of transparency mechanisms to strengthen the reporting and review of parties’ implementation efforts. These include new biennial reports and processes of international assessment and review for developed countries (IAR) and international consultations and analysis (ICA) for developing countries.
In Warsaw, parties put the final pieces in place, agreeing on the composition, modalities, and procedures of the teams of technical experts (TTEs) that will analyze developing countries’ biennial reports under ICA. The TTEs will aim to have a majority of experts from developing countries; each will be led by one developing country expert and one developed country expert, serving in their individual capacities.
Framework for Various Approaches / New Market Mechanism
In Doha, efforts toward establishing a new market mechanism under the UNFCCC were subsumed under a broader work programme on a Framework for Various Approaches, which also takes in non-market approaches.
The FVA discussions have been difficult, in part because some parties are ideologically opposed to market-based approaches. Some groups hoped to make progress in Warsaw in elaborating an FVA that would facilitate the linking of market and non-market approaches–for example, by establishing accounting rules to ensure environmental integrity and prevent double-counting. While not explicitly tied to the ADP, the FVA could lay important groundwork for accounting rules under a Paris agreement.
However, the discussions in Warsaw remained bogged down in the Subsidiary Body on Scientific and Technological Advice (SBSTA) and never reached the COP. The issues will be taken up again next year.
Parties made further progress on REDD+, a set of issues relating to deforestation and other emissions-generating forest practices. Of particular note was the adoption of guidelines for forest countries to develop “reference levels” against which their efforts to reduce deforestation will be measured, a key step toward qualifying for increased funding. Norway, the UK, and the United States pledged a total of $280 million for REDD+ efforts.
The ADP will reconvene March 10-14 in Bonn, and meet again during the regular meeting of the UNFCCC Subsidiary Bodies, set for June 2-15 in Bonn. A third ADP meeting may be held in the fall.
The U.N. Secretary General’s climate summit is set for September 23 at the United Nations in New York.
COP 20 will be held December 1-14 in Lima. COP 21 will be held November 30-December 11, 2015, in Paris.
by Elliot Diringer, Executive Vice President – Published in Nature, September 2013
Climate change: A patchwork of emissions cuts
Download the article as a PDF.
Read Elliot Diringer’s article in Nature on the potential path forward for international climate talks. Below is a brief summary.
With the failure in recent years of international attempts to deliver a binding treaty on emissions reductions, individual countries are finding their own ways to address the issue.
This patchwork approach could work for climate-change mitigation, C2ES Executive Vice President Elliot Diringer says in Nature, but we need an overarching framework of rules by which progress can be measured.
“Much of the real work to stave off climate catastrophe must happen at home,” Diringer writes. There are encouraging signs for reaching a new international agreement, but nations are still struggling with how to build ambition into the model, to ensure that collective action does reduce global emissions overall.
Diringer writes that home-made national approaches can be effective for climate-change mitigation if countries agree on rules and build trust.
I recently replied to a question on the National Journal blog: “Should international negotiators abandon the top-down multilateral system to confront climate change and find another way?”
You can ready other responses at the National Journal.
Here is my response: True enough, the Doha climate talks will produce no big breakthroughs. Compared to the last three conferences – Copenhagen, Cancún and Durban – Doha is indeed a pretty ho-hum affair.
That is no doubt disappointing to anyone still looking to the U.N. climate negotiations to deliver a quick, decisive response to the challenge of global climate change. In actuality, though, the diplomatic humdrum in Doha marks a long overdue shifting of gears that could, in time, produce a far more practical approach.
The Durban Platform: Issues and Options for a 2015 Agreement
By Daniel Bodansky
The Durban Platform talks, aiming for a new global agreement in 2015, present an opportunity to assess and strengthen the international climate change effort. Since launching the U.N. Framework Convention on Climate Change two decades ago, governments have tried both "top down" and "bottom up" approaches. Neither has achieved the levels of participation or ambition needed to reverse the continued rise of global greenhouse gas emissions. Going forward, governments should draw on both models to forge a more effective global agreement.
When climate negotiators meet in Bangkok this week for the latest session of the UN Framework Convention on Climate Change (UNFCCC), they will (hopefully) begin substantive discussions under new terms better reflecting how much the world has changed since the Convention’s adoption in 1992.
Of particular relevance is the dramatic shift in the distribution of global carbon dioxide (CO2) emissions over the past two decades, as highlighted in the Netherlands Environmental Assessment Agency’s 2012 Trends in global CO2 emissions. A telling statistic: In 1990, industrialized countries that negotiated targets under the Kyoto Protocol (including the U.S.) accounted for 68 percent of global CO2 emissions; in 2011, the authors estimate, this share was 41 percent. Developing countries now account for well over half of annual global emissions – with China and India generating a full third.