Was the President's Keystone XL rejection constitutional?

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An oil pipeline near the Copper River in Alaska.  Photo: Luke Jones.

An oil pipeline near the Copper River in Alaska.  Photo: Luke Jones.

In the run-up to the COP 21 Climate Conference, US energy politics was dominated by President Obama's rejection of TransCanada's proposed Keystone XL pipeline.  The pipeline would have extended and modified the route of the existing Keystone pipeline, facilitating the extraction of Canadian tar sands oil and helping bring it to market.  Before the decision was made, I wrote about the impact a rejection of the pipeline might have on COP 21 negotiations:

If the pipeline were rejected before the COP 21 negotiations, it would further cement the feeling (shared by myself and others) that the Keystone XL fight is largely a symbolic one [...] Admittedly it's hard to quantify the extent to which a rejection of Keystone XL would bolster the US position on climate change during COP 21 negotiations, but if the administration is looking to maximize its leverage with other countries, a decision on the pipeline would be a bold move.  

As it turned out, the perception that Keystone XL would contribute to global climate change was a major factor in rejecting the project.  The State Department had already concluded that other environmental impacts would be minimal (a disputed claim), and even questioned the idea that Keystone XL would have a meaningful impact on GHG emissions.  Still, it would have been difficult to push the international community towards climate action if the US President didn't appear to be taking action himself.

It's now clear that TransCanada intends to use that reasoning against the President.  In a brief filed in January in a federal district court in Houston, Texas, TransCanada alleges that the President's rejection of the pipeline was unconstitutional.  This week several states (Oklahoma, Kansas, Montana, Nebraska, South Dakota, and Texas) filed a brief in support of TransCanada's claims.  The most interesting claim is that the President lacks the constitutional authority to reject a pipeline project.  Here is the gist of the argument:

Essentially, the argument boils down to this: Congress has constitutional authority to regulate foreign and domestic commerce; Congress has not delegated that authority to the President; and to the extent that Presidents have traditionally exercised approval power in the past, none have rejected an international pipeline on the basis that it would undercut the President's bargaining power in unrelated international negotiations.

There is some merit to the claim, but of course, the issue is not as clear-cut as the brief suggests.  While Congress has not expressly delegated approval powers to the President, it has not established a statutory scheme for regulating international pipelines either.  So there is an absence of regulation, within which several Presidents have stepped in to make approvals and regulate international pipelines to some extent.  Here is Prof. James Coleman on the federal government's likely response:

President Obama’s administration will raise several counterarguments. First, it will argue that the President has inherent and unilateral constitutional authority to control the nation’s borders, so he must have some kind of ability to control international border crossings. Second, if Congress has not established any criteria for the President to use in this decision, then he is free to create his own criteria. Third, President Johnson established this process almost fifty years ago and it has been frequently used to approve pipelines so Congress has, with the passage of time, acquiesced to this process. Fourth, federal district courts have upheld the President’s unilateral decision to approve international pipelines.

The process President Johnson established was Executive Order 11423 in 1968, which allowed the President to approve international pipelines as long as they serve the national interest.  Presidents have long followed this process, and until the Keystone XL rejection, it was largely uncontroversial.  What TransCanada is arguing, however, is not just that the President doesn't have constitutional authority to approve or reject international pipeline proposals; even if they lose that point, they can argue that in this specific case, the rejection was based on the project's perceived impacts, not its actual impacts.  

A comprehensive energy policy framework does not exist, and for the most part, has never existed.  That absence results in some constitutional ambiguities, such as the one in this case.  I think it likely that the President's authority to review and approve/reject international pipelines will be upheld in federal court; cross-border pipelines are sufficiently related to foreign affairs, even if foreign and domestic commerce is implicated as well.  However, the government should expect to receive some flack for its reasoning.  In the future, pipeline decisions may be more closely based on the substantive review of the project and its direct impact on the national interest as a result of this challenge.  

Supreme Shocker: court orders stay of Clean Power Plan

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Courtroom of the United States Supreme Court.  Photo: John Marino.

Courtroom of the United States Supreme Court.  Photo: John Marino.

In a move virtually no one saw coming, the United States Supreme Court ordered a stay of the Environmental Protection Agency's Clean Power Plan pending review by the DC Circuit court.  The Clean Power Plan requires states to reduce greenhouse gas emissions by regulating emissions from electricity producers such as coal plants.  The DC Circuit is hearing the case to decide on its constitutional validity.

While the constitutionality of the Clean Power Plan had been questioned and debated by observers, it is highly unusual for the Court to insert itself into a pending case of a lower court in this way.  The DC Circuit had scheduled review of the CPP according to a timeline that would allow for a decision before any major action by the states, so few were expecting the Supreme Court to intervene and put a hold on the CPP in such urgent fashion.  Here's Patrick Parenteau on how odd the order is:

This action is unprecedented in a number of ways. The majority made none of the findings typically required to obtain a stay. There is no analysis of the merits of any of petitioners’ claims. There is no showing that the rule threatens any immediate harm to petitioners, especially given the long lead times EPA has built into the process. There is no showing that the balance of hardships tips decidedly in favor of the petitioners, especially given the fact that most states are well into the process of developing implementation plans and those that do not want to submit a plan don’t have to. There is no showing that the stay is in the public interest, especially given the warnings from the scientific community that time is fast running out to avoid catastrophic consequences of climate disruption. Never before has the Court interjected itself in a case with such high stakes that hasn’t even been fully briefed and argued before the lower court.

This is what the Court's order looks like: 

The order isn't a final decision invalidating the CPP, but it does create uncertainty for states who were developing plans to comply.  And it suggests that the five justices in favor of the stay may eventually overturn the plan.  Some have suggested the Court believes the EPA needs a more express authorization from Congress to implement such sweeping regulations.  If that's the case, it will deal a severe blow to the United States' chances to meet the climate commitments we signed onto in the Paris Climate Agreement.  Many states are leading the way on climate change mitigation, but the CPP was a key tool in requiring regulation in all states.  At the very least, the order ensures there will be a lot of attention on the DC Circuit as it hears the case and renders its opinion.  

COP 21: 5 Thoughts on the Final Draft

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A replica of the Eiffel Tower made from bistro chairs stands at the COP 21 conference venue.  Photo: Ryan Stoa.

A replica of the Eiffel Tower made from bistro chairs stands at the COP 21 conference venue.  Photo: Ryan Stoa.

The COP 21 Final Draft of the Paris Agreement has been released (see here for the text).  After months of preparations and weeks of negotiations, the text concludes the drafting phase of the agreement.  It's been fun following the ups and downs of COP 21, and a special thanks goes out to the Centre International de Droit Comparé de l'Environnement and FIU's College of Law, Sea Level Rise Solutions Center, and Institute for Water and the Environment for inviting me to the conference and allowing me to participate.  The process (and blogging!) isn't over, as countries now need to ratify the agreement through their own domestic political processes, and of course, the agreement needs to be, you know, implemented.  But for the moment we can step back and take stock of what the Paris Agreement means for international climate action.  5 thoughts:

The mood in Paris is optimistic

It's been a while since an international climate conference concluded on good terms.  The last major effort in Copenhagen was panned as a failure, breeding cynicism that a climate deal could ever be reached.  While the Paris Agreement has its faults (see below), it at least succeeded in bringing countries together to get started (if belatedly) on this business of climate change mitigation.  The conference birthed the "high-ambition coalition" which includes both poor and rich nations, and many of the world's biggest polluters were enthusiastic about ambitious mitigation targets:

One of the most unexpected developments in Paris is the biggest polluters coming around to the idea of setting an even more ambitious target of 1.5 degree. Canada, Australia, European countries, China, and the United States have all spoken in favor of recognizing the damage above 1.5 degrees.

The final text adopted the less ambitious goal of limiting warming to 2 degrees, but nonetheless, it's encouraging that on a philosophical level countries are realizing that climate change must be addressed.  Now they can decide how.

5-Year Reviews are In

I wrote at the outset of the conference that there was some consensus forming around the idea that countries' emissions (and progress in meeting emissions reductions) would be reviewed every five years.  That would allow the international community to monitor progress (and laggards) while providing a basis to adjust emissions reduction targets if climate science paints an increasingly bleak picture.  5-Year Reviews ended up being much more contentious than expected, as China pushed for more ambiguous reporting requirements.  The United States pushed hard to keep the 5-Year Reviews in the agreement, and in the end they were successful.  Based on its negotiating stance, the US should expect to lead the review effort, providing financial and technical assistance to developing countries to conduct the reviews.  The Reviews will begin in 2019.

Decarbonisation is Out (more or less)

One of the more ambitious goals of previous drafts of the agreement was complete decarbonisation by 2050.  In other words, to produce 100% of energy through renewable sources within 25 years.  It was always a bit of a reach, but the fact that decarbonisation was a talking point and negotiating item at all was surprising to some.  The final draft only calls for carbon neutrality (no net increase in carbon emissions) sometime in the second half of this century.  A far cry from decarbonisation by 2050.

Climate Finance tabled for now

The most divisive issue at COP 21 may have been the differentiation in responsibilities between rich and poor countries.  I wrote about this on Tuesday, particularly the "loss and damage" provisions that developing countries were desperate to include.  "Loss and Damage" provisions are in the final draft, but lack any meaningful obligations.  In fact, the preamble specifically interprets the loss and damage provisions of the text to not "provide a basis for any liability or compensation."  In other good news for rich countries, the financial obligations can was kicked down the road.  The previous commitment to provide 100 billion USD was maintained as a floor, while an increase in that amount was tabled until 2025.  A short-term win for developed countries, but one that doesn't resolve the underlying tensions between rich and poor countries when it comes to climate change.

The scope of the Paris Agreement was appropriately narrow

Anytime an environmental issue makes it onto the international agenda in a high-profile way, there's a temptation to piggy-back by making the issue a proxy for every other environmental issue.  Technically it's pretty easy to do, as environmental challenges are so intertwined that addressing one can be reasonably argued to be a prerequisite for addressing another.  And so it was at COP 21, where many were campaigning hard for the climate agreement to meaningfully address the role of women, indigenous groups, management of the oceans, and a host of other climate-related problems.  I spoke at an event on Thursday that was focused on human rights and climate change, and most of my co-panelists spoke with disappointment that the text was unlikely to address human rights.  These focus issue groups will be disappointed that the final draft does little (if anything) to address their core concerns.  Unfortunately, that probably wasn't realistic in the first place.  It was hard enough for negotiators to agree to a text that was narrowly focused on carbon emissions.  In fact, the conference went longer than expected in order to get it done.  Climate change does implicate countless other environmental challenges, but to add them all to the agenda would have precluded agreement on a more focused topic.  Many groups will be disappointed by the final draft, and they are right to continue pushing for progress, but at its core the Paris Agreement was about carbon emissions.  That other related issues were dropped along the way shouldn't detract from the fact that for the first time the international community has a meaningful framework from which to continue addressing climate change.

The Climate Generations area of COP 21 near the end of the conference. Photo: Ryan Stoa.

The Climate Generations area of COP 21 near the end of the conference. Photo: Ryan Stoa.

COP 21: As deal comes together, China and Saudi Arabia push back

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Yesterday I wrote about the divide between developed and developing countries on the matter of climate change liability, so it's a pleasant surprise that the European Union and 79 African, Caribbean, and Pacific countries have formed an alliance to back a legally binding climate agreement with 5-year review intervals. 

Also encouraging was the release today of a clean draft of the Paris Agreement.  There are still many contentious questions to resolve in the next two days, including fundamental issues such as the purpose or goal of the agreement:

And on the collective end-game:

And with the end in sight, obstructionists are emerging.  So far reports call out China and Saudi Arabia for being the most active in frustrating progress.  On Saudi Arabia:

Behind the closed doors of negotiating sessions [...] the Saudis have strenuously resisted efforts to enshrine ambitious goals into the text of a Paris agreement.

The Saudis objected even to the mention of 1.5C – a new more ambitious target for limiting warming now endorsed by more than 100 countries including vulnerable low-lying states and big polluters such as the European Union and US.  The kingdom balked at the goal of decarbonising the economy by 2050.  The Saudis have also objected to demands for periodic reviews of climate plans, according to accounts from negotiators and observers. Saudi delegates complain that submitting a climate plan before Paris was difficult enough.

“It is unacceptable for developing countries, like my own, to be asked to participate in this so called ratchet mechanism,” the Saudis were reported to have told the session.  “It was tough, we had to go to every ministry, every part of government. We developing countries don’t have the capacity to do this every five years. We are too poor, we have too many other priorities. It’s unacceptable,” a Saudi delegate said.

And on China:

Beijing's negotiating stance was causing anxiety among many delegates on Tuesday as the Paris talks intensified ahead of Friday's deadline, partly because India was expected to be a bigger obstacle to a successful agreement.
In Paris, however, one delegate told the FT that behind closed doors, India has been "quite helpful" on some measures while China's negotiators have been siding with other developing countries on several divisive issues, including a push to provide more information about the volume of each country's emissions.
In a sign of the tensions growing in private meetings this week, the EU climate commissioner, Miguel Arias Canete told reporters that although China's President Xi and other world leaders had called for strong climate action at the opening of the Paris talks, "things are much more complex" inside the negotiating rooms.
The Gulf Cooperation Council's Plenary HQ at COP 21.  Photo: Ryan Stoa.

The Gulf Cooperation Council's Plenary HQ at COP 21.  Photo: Ryan Stoa.

COP 21: "Loss and Damage" provisions have become the sticking point

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Protesters at COP 21 target developed countries in demanding reform.  Photo: Ryan Stoa.

Protesters at COP 21 target developed countries in demanding reform.  Photo: Ryan Stoa.

Ever since the United Nations Framework Convention on Climate Change was created in 1992, there has been a division between rich industrialized countries and poorer industrializing countries.  The rich countries have typically been the strongest proponents of climate action, arguing that with all this new climate science it's everyone's responsibility to cut back on emissions.  In response the poor countries point out that rich countries got to reap the rewards of fossil-fuel driven industrial growth, and that growth is largely responsible for the GHGs trapped in the atmosphere. 

The COP 21 negotiations are showing that both groups have succeeded in making their point, to some extent.  That each country has shown up and pledged to reduce their emissions, including developing country giants like China, India, and Brazil, means the developed countries have succeeded in making emissions reductions a near obligation.  On the other hand, the developing countries have hinged the success of the Paris Agreement on the strength of the text's "loss and damages" provisions.  Essentially, in exchange for reducing emissions, developing countries want financial assistance from developed countries to help them cope with climate impacts. 

It's a reasonable request, and one the developed countries have essentially already agreed to in a broad sense, but it raises a number of thorny particulars that negotiators are having trouble resolving.  Resolving questions like Who has to pay, and how often?  and Who gets to receive, and for what purpose? are one challenge, but a potentially bigger hurdle will be the conceptualization of "loss and damage" provisions.  Developed countries are categorically against any language in the text suggesting they have legal liability for climate damages like loss of land, building damage, etc.  They are willing to make voluntary financial payments, but won't accept legal responsibility for climate impacts:

Industrialised countries acknowledge that they are obligated to provide climate finance, but with an eye on the changing global realities, would like developing countries "in a position to do so" to contribute to the money pot. This attempt to increase the donor base has been strongly contested by the developing countries.

The other contentious issue is who is eligible to receive the funds. All developing countries are eligible but increasingly there is talk of funding for "vulnerable" countries. There is however no clarity on what defines vulnerability. Many in the negotiations see this talk of vulnerable countries as a bid to divide up the developing countries bloc. The G-77 and China comprising a diverse developing countries have presented a resolutely unified front on the question of finance.

Ultimately the developing countries may realize that no country is going to accept the legal implications of a robust "loss and damages" provision.  Instead, they might end up angling for a strong financial commitment.  Rich countries, for their part, can make those commitments without implicating any legal obligations.  Instead of providing compensation for damages incurred from climate hazards like hurricanes, they can subsidize hazard insurance for countries in particularly vulnerable areas.  Many are saying the "loss and damage" provisions will come down to the wire.  Stay tuned.

COP 21: Paris Agreement won't address emissions from shipping

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The European Union released a report last week claiming that the global shipping industry may account for 17 percent of global GHG emissions by 2050 (it already accounts for 2.4 percent).  If the industry were a country it would be the sixth largest polluter.  But because it isn't a country, and the industry as a whole lacks meaningful regulation, the Intended Nationally Determined Contributions (INDCS) countries are putting forth to validate their emissions cuts don't account for the shipping industry.  That responsibility falls to the International Maritime Organization, a UN body with regulatory authority but little capacity to impose new rules on the world's existing shipping fleet. 

The original draft of the Paris Agreement included some language that would address shipping emissions, but the latest draft has dimmed the prospect of regulating the notoriously elusive industry.  At best it might implore the IMO to create GHG emissions reductions targets.  Putting the industry on notice that its emissions will be a concern going forward is better than nothing, but certainly a disappointment to climate activists.  Ben Adler's take:

There are many ways in which regulations could bend the industry’s emissions curve downward. The most obvious would be stricter and more broadly applied fuel-efficiency standards. The IMO could also set speed limits, as ships emit less when moving slower. Alternative fuels could be researched and deployed. Also, ships use a lot of electricity for on-board operations, and that could be generated using sources other than oil, as cargo ships are big enough to support solar panels or even wind turbines.
The IMO, despite having commissioned a report that demonstrates the scope of the problem, has yet to take action. Critics suggest that bureaucratic inertia and coziness with the shipping industry could be to blame. So it may need a push.
Precisely because it is so central to economic activity, shipping is a touchy subject for the international community to tackle. As a small island nation, the Marshall Islands is as economically dependent on shipping as anyone. More so, in fact: 6.1 percent of the world’s ships (by tonnage) are registered in the Marshall Islands and provide a major source of its tax revenue. That’s why it’s afraid to act alone to regulate ships. If it were the only country to impose new rules on ships flying under its flag, the ships would just register elsewhere. But the Marshall Islands isn’t afraid to push for strong global rules that would be the same for ships registered in any country. Whatever risk to its economy that might pose, it pales in comparison to climate change.

COP 21: Consensus Emerging on 5-year Reviews

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On the third day of the Paris Agreement negotiations, a consensus is emerging that countries should be evaluated every 5 years to monitor progress towards curbing emissions.  Periodic reviews have the benefit of ensuring that countries (and the international community) are aware that they are or are not meeting their emissions reductions commitments.  They also create an opportunity to impose further reductions if climate science continues to paint a bleak picture.  Here's Reuters:

Climate negotiators in Paris are drawing close to resolving one of the sticking points for a breakthrough emissions pact by favoring a five-year review period on promised greenhouse gas cuts, a top official said on Wednesday.
Regular reviews are seen as a crucial part of any agreement since countries' current pledges to cut emissions - submitted by 185 nations to the United Nations - will fail to prevent temperatures from rising 2 degrees Celsius (3.6 Fahrenheit) above pre-industrial times, seen as a dangerous level.
Countries have disagreed as to how often audits of those plans should take place. While many major emitters including China, the United States and the European Union supported a five-year period, a term included in an outline U.N. text last month, others such as India have been reluctant to commit.
"It seems now there is a growing consensus that (reviews) will be every five years," U.N. climate chief Christiana Figueres told a news conference on the third day of talks.There was still little progress on thornier issues, though, such as funding for developing nations and a long-term goal for phasing out fossil fuels.

COP 21: Opening Statements

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Today marked the first day of the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change.  Negotiators will be hammering out the details of the Paris Agreement for the next two weeks (for an overview see here), but for today the spotlight belonged to the world leaders setting the stage for the conference.  

A common thread being woven into the various speeches is the important role that climate action and the COP 21 will play in the fight against terrorism.  Here is US President Barack Obama on that nexus:

He added that the meeting symbolised a global "act of defiance" that proves the world stands undeterred by attacks linked to the Islamic State of Iraq and the Levant (ISIL) group in Europe and beyond.
"What greater rejection of those who would tear down our world than martialling our best efforts to save it," Obama said.

And the host, French President Francois Hollande:

"What is at stake with this climate conference is peace," [Hollande] said at the opening of the summit.
"The fight against terrorism and the fight against climate change are two major global challenges we must face," he said.

Chinese President Xi Jinping is emphasizing the need for developed countries to support developing countries financially.  And Pope Francis described humanity as being "at the limits of suicide."

More to come as the negotiations progress.


Keystone XL and the COP 21 Deadline, Ctd

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That was fast.  President Obama announced today that his administration would not be approving TransCanada's proposal to build the Keystone XL pipeline.  The decision came two days after the administration denied TransCanada's request to delay a final decision.  And on Wednesday I wrote:

If the pipeline were rejected before the COP 21 negotiations, it would further cement the feeling (shared by myself and others) that the Keystone XL fight is largely a symbolic one [...] Admittedly it's hard to quantify the extent to which a rejection of Keystone XL would bolster the US position on climate change during COP 21 negotiations, but if the administration is looking to maximize its leverage with other countries, a decision on the pipeline would be a bold move.  

President Obama appears to share those views.  On the symbolic nature of the Keystone XL fight:

“This pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others”

The President was also forthcoming about the influence that COP 21 had on his decision:

Obama said the Keystone decision was important ahead of the summit to reinforce the United States’ global leadership and commitment to combating climate change. “Approving this project would have undercut that global leadership,” Obama said. “If we want to protect the worst effects of climate change before it’s too late, the time to act is now.”

The NYT also points out that US-Canada relations may have played a large role in the timing of the decision:

The recent election of a new Canadian prime minister, Justin Trudeau, may also have influenced Mr. Obama’s decision. Mr. Trudeau’s predecessor, Stephen Harper, had pushed the issue as a top priority in the relationship between the United States and Canada, personally urging Mr. Obama to approve the project. Blocking the project during the Harper administration would have bruised ties with a crucial ally. While Mr. Trudeau also supports construction of the Keystone pipeline, he has not made the issue central to Canada’s relationship with the United States, and has criticized Mr. Harper for presenting Canada’s position as an ultimatum, while not taking substantial action on climate change related to the oil sands.

Here's the full announcement:

Keystone XL and the COP 21 Deadline

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A pumping station on the (existing) Keystone Pipeline System, Nebraska.  Photo: Shannon Ramos.

A pumping station on the (existing) Keystone Pipeline System, Nebraska.  Photo: Shannon Ramos.

The proposed Keystone XL pipeline is in the news again this week, after the pipeline company (TransCanada) requested that the US State Department delay its decision to approve or reject the project.  Ostensibly TransCanada made the request on the grounds that there are outstanding siting issues to work out in Nebraska, but the more likely reason is that the company fears the Obama administration will soon issue its rejection, possibly in the run-up to the COP 21 climate negotiations in Paris.  The administration will be trying to obtain as many concrete climate commitments from other nations as possible, and a rejection of the Keystone XL pipeline would send a strong message that the US is committed to the COP 21 process.  A delay, on the other hand, would likely push the decision onto the next president (many of whom have declared support for the project).  Today the State Department announced it would not grant TransCanada's request, and suggested that a decision will be made before the president leaves office.

If the pipeline were rejected before the COP 21 negotiations, it would further cement the feeling (shared by myself and others) that the Keystone XL fight is largely a symbolic one.  Supporters trump up the job-making potential of the pipeline, but those hopes are overblown ("between 35 and millions," according to Jon Stewart), and most jobs would be short-term construction positions.  On the other hand, approving the pipeline isn't likely to be the apocalyptic death to the climate system some project, largely because the oil can find its way to global markets by other means (one pipeline being proposed would take tar sands oil from Alberta to the Pacific Ocean, across sensitive wilderness areas and First Nations lands).  

That's not to say the symbolic fight doesn't matter.  Landmark victories have been hard to come by for the environmental movement in recent years, especially when it comes to climate change.  Demonstrating the ability to defeat a large energy project supported by the oil and gas industry and many Congressional politicians would be a monumental achievement and might catalyze other organized campaigns.  And doing so at the moment when the US is trying to show leadership during COP 21 climate negotiations would amplify the impacts of that achievement.  So while rejecting the pipeline project itself may not have a significant impact on GHG emissions directly, it may have a very significant impact indirectly. 

Ultimately that may be the most relevant long-term outcome of the Keystone XL fight.  Even if the pipeline is rejected, TransCanada can resubmit its application when the next administration takes office (the costs of going through the permitting process and NEPA review are significant but not insurmountable, and there are few legal obstacles that would prevent the company from resubmitting some variation of the initial proposal).  And while many are focused on the political influences on the pipeline's destiny, the global price for oil may be just as, if not more, influential.  If oil prices stay low, new investments in oil and gas are unlikely even if Keystone XL is approved.  If prices rise TransCanada can try its luck again with the next president.  Admittedly it's hard to quantify the extent to which a rejection of Keystone XL would bolster the US position on climate change during COP 21 negotiations, but if the administration is looking to maximize its leverage with other countries, a decision on the pipeline would be a bold move.  

COP 21: Measuring Progress After Paris

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I argued in this post earlier this month that the upcoming Paris Agreement climate change negotiations will require parties to confront two simultaneous dynamics.  On the one hand, the strategy of allowing each country to determine their climate change mitigation benchmarks (Intended Nationally Determined Contributions or INDCs) has been successful in fostering participation in the Paris Agreement framework, particularly among developing countries who might have scoffed at multilaterally-created mitigation rules and norms.  On the other hand, we know that the combined impact of the INDCs (and at this point most have been submitted) is not enough to meaningfully combat climate change.

This aggregate shortcoming will force negotiators to consider how INDCs should evolve across time.  Clearly a static commitment to, for example, reduce GHG emissions by 22% by 2030 (in the case of Mexico's INDC) would expire in 2030, and may prove woefully inadequate as climate science provides more feedback on the relationship between GHGs and the climate system.  So at what point would these INDCs need to be revised, and with what criteria should revised INDCs be evaluated?

One proposal being floated around suggests a five-year submission and evaluation cycle in which countries must progressively submit more ambitious INDCs than the previous five-year commitment.  Something like the following:

Five year intervals probably strike the right balance between the need to re-evaluate mitigation actions and the political capital required to address the issue on a periodic basis.  What is lacking from this proposal though, is any kind of stick that would complement the carrot of determining mitigation commitments nationally.  The INDCs appear to be a good model if securing broad-based participation is your objective, but so far the approach isn't doing enough to reduce climate impacts.  There is a risk that the Paris Agreement - by endorsing the INDC approach and cementing it as the global climate paradigm - will perpetuate an inadequate global response.  

A 5-year INDC cycle might rest on the hope that the momentum created by the INDCs does enough to make countries address their own emissions that they recognize and pursue the benefits of a climate friendly agenda on their own, and step up their mitigation efforts out of self-interest.  It's a plausible, if tenuous, path to success.

COP 21: The "Non-Paper"

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The Eiffel Tower in Paris, France, seen through smog pollution.  Photo: Olya Sanakoev

The Eiffel Tower in Paris, France, seen through smog pollution.  Photo: Olya Sanakoev

From November 30 to Dec 11 member states of the United Nations will convene in Paris in the hopes of coming away with a meaningful global agreement to reduce greenhouse gas emissions and stem the tide of climate change.  The 21st Conference of the Parties to the UN Framework Convention on Climate Change (known more simply as "COP 21") is shaping up to be a historic event, for better or worse, in part because so much is riding on the agreement.  There are myriad statistics and evidence that climate change impacts will affect virtually everyone on the planet, some at very high cost.  

Recognizing this, most parties have already made commitments to the Paris Agreement in the form of "Intended Nationally Determined Contributions" (INDCs).  The INDCs represent each country's commitment in terms of GHG emissions reductions.  The United States, for example, has pledged to reduce its emissions by 26% by 2025 (using 2005 as the baseline year).  So far 119 countries have submitted their INDCs, including all industrialized nations, Brazil, China, India, Indonesia, Russia, and South Africa.  There aren't many big players left who haven't made a commitment yet, which is a good sign.  On the other hand, it's unlikely that the combined commitments are enough to meaningfully combat climate change:

It has been calculated that these INDCs would still mean a planetary warming of 3 degrees C above pre-industrial levels, overshooting an international commitment by one degree.
A recent study by Stern and others also shows that the reduction pledges from the US, European Union, and China – who together account for 45% of global emissions – will miss by almost double the 2030 target of 35 gigatons of CO2e emissions.

Last week I attended a Climate Reality workshop with former Vice President Al Gore, who admitted that when he first heard that countries would be able to come up with their own GHG emissions reductions targets, he thought it was a terrible idea.  But he's since reconsidered, in part because it appears that the freedom and ownership countries have to determine their own INDCs has fostered meaningful participation in the COP 21 process.  I tend to agree, though the text of the agreement itself may still play a large role in determining how well these INDCs (and future actions) combat climate change.

This week the Paris Agreement "Non-Paper" (known more colloquially as "the first draft") was released to the public.  It has been reduced from 80 pages to 20, and naturally, some important material has been left out:

“[This] new text has left out a significant piece of the climate change solution puzzle: forests. The land-use sector accounts for about 10 percent of annual global emissions,” said Gustavo Silva-Chávez, Program Manager for the Forest Trends’  Expenditures Tracking Initiative (REDDX).

Another important sector not directly addressed in the non-paper?  Energy.  And an ambitious requirement that 100% of the world's energy be provided by renewable energy by 2050 was also removed.  Of course, since this is the first draft and negotiations have scarcely begun, the key operational elements of the text have not been resolved either.  The difference between "shall" and "should," for example, is fairly significant.  Here's a snippet of the text:

The full text of the non-paper can be viewed here.  I will be following and attending the COP 21 negotiations.  Stay tuned.