Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

The high-level panel led by Prime Ministers Meles Zenawi of Ethiopia and Gordon Brown of Britain met in London on March 31 to begin considering the question. After the meeting, Prime Minister Zenawi said the Advisory Group had identified various financial sources to help developing countries combat climate change and set directives for further activities. He added that the meeting had set up three committees to assess the stated alternatives and pass recommendations. The first committee will assess governmental financial sources, the second will evaluate private financial sources and the third committee will undertake administrative work.

The Advisory Group is expected to submit its final report to Secretary-General Ban Ki-Moon before the COP in Mexico later this year. The preparation of the final report is expected to be a transparent process and allow for comments and suggestions by governments as well as guidance for further work that the Advisory Group may need to undertake. The Advisory Group also will provide periodic briefings to UNFCCC parties, including at the May/June meetings of the UNFCCC.

But this fails to take into account the hodge-podge assortment of reductions so far pledged under the Accord – and the effect thereof. And it’s not clear whether activities related to the Accord represent some progress or a setback, or serve as a distracter to the two UNFCCC working groups that are negotiating an agreement that would take over when the first commitment period of the Kyoto Protocol expires at the end of 2012. First, consider some of the reduction pledges:

• Annex I entity and Kyoto Protocol-signatory European Union (with collectively 12% of global GHG emissions) pledged a 20-30% reduction in overall GHG emission from a 1990 baseline by 2020.
• At the same time, Annex I and late-Kyoto-signatory Australia (with nearly 5% of global GHG emissions) pledged a 5-25% reduction in overall GHG emission by the same time from a 2000 baseline (which translates roughly into a 3-24% reduction from 1990 levels, according to Australia GHG Inventory data). 
• In contrast, Annex I but non-Kyoto-signatories like the United States (with almost 15% of the global GHG share) pledged a 17% reduction from 2005 levels by 2020, which translates into a mere 3.87 percent reduction from 1990 levels. 
• Kyoto-signatory Canada, the United States largest trade partner, not surprisingly similarly pledged a 15% reduction from 2005 levels by 2020, which leads to an increase in GHG emissions of 0.25% from 1990 levels for that nation. 

 These vastly different reduction commitments among Annex I nations bode ill for even-handed (and more likely sustainable) GHG reductions. Also, keep in mind that developing (non-Annex-I) nations have different reduction commitments from Annex I nations for reasons of historic responsibility. But having Accord commitments differ (in type and amount) among non-Annex-I nations – what we see emerging under the Accord – is likely not workable in the long-run and perhaps not even in the short term. For example, developing countries such as China (with 16% of global GHG) pledge a 40-45% reduction by 2020 and India (with nearly 5%) pledged a 20-25% reduction in GHG intensity, a measure of GHG emissions per dollar of GDP. GHG intensity reductions cannot accurately be represented in terms of reductions on a 1990 base year due to wide variation in GDP projections so it is impossible to gauge such a commitment against Annex I nations. Not only is this non-gaugeable commitment likely to meet with resentment in the US Congress when is comes to passing domestic GHG legislation (although “GHG intensity” reductions were the only reduction measures offered as recently as one year ago by the Bush administration), but it differs from other non-Annex I countries. Non-Annex I Brazil (with a little more than 6% of global GHG emission) and a few other nations have pledged reductions not in absolute terms or in terms of GHG intensity, but on a “Business as Usual” (BAU) model, which is a commitment to reduce emissions from the most plausible projection of the future GHG emissions if climate-friendly emission reductions were not taken. In the case of Brazil, which has pledged a 36-39% reduction on a BAU model, this actually translates to an increase of between 2-7% in GHG emissions from a 1990 baseline.

            So what does the Accord mean? It appears to mean different things to different countries. What we are seeing looks a lot like “from each according to ability” from a reduction standpoint and if you add in the Copenhagen Green Climate Fund (the financial pledges to support mitigation and adaptation in certain at-risk nations in paragraph 8 and 10 of the Accord), there is a component of “to each according to need.” It doesn’t take a Marxist scholar to recognize what is developing – and add the fact that there are no enforcement mechanisms under the Copenhagen Accord to encourage compliance and little verification of target compliance, one begins to worry whether the Copenhagen Accord can lead to a fair, ambitious and binding agreement to solve the climate crisis. On the positive side, it did bring the major players into the mix. But the Accord’s role is unclear given the soft and differing commitments and the continued work of the two working groups trying to hammer out the post-Kyoto agreement.

Specifically, the Copenhagen Accord offers a statement of purpose, which is to meet the “objective of the UN Framework Convention on Climate Change to stabilize GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”; that is, to keep global warming to 2˚C. It offers $30 billion a year in financial support to poor countries with “balanced allocation between mitigation and adaptation,” growing to $100 billion by 2020, as the Copenhagen Green Climate Fund. The Accord includes key U.S. requirements such as international oversight of emissions reductions (transparency) for both Annex I and (more importantly) non-Annex I countries. The Accord also doesn’t address certain issues. Missing was hard-core MRV (monitoring, reporting and verification) for non-Annex I countries - the Accord only commits signatories to domestic MRV with “provisions for international consultation and analysis ... that will ensure that national sovereignty is respected” for non-Annex I countries. In other words, China will not open its books to verification by the West but will allow “clearly defined guidelines” for international consultation with regard to its domestic MRV. Missing also was any firm commitment to fund the promised $100 billion a year by 2020. A commitment (as requested by Africa and other vulnerable countries) for deeper emission cuts to hold the global temperature rise to 1.5˚C this century was not accepted. More of a surprise, missing was any 2050 goal of reducing global CO2 emissions by 80 percent - something that had been steadily included in discussion drafts up to that point. No overall targets for emission reduction for 2020 were specified, although individual parties are welcome to volunteer what they will reduce. Perhaps most tellingly, missing was any pledge to formalize the Accord as a binding treaty in Mexico City next year. In the end, it seems to be a short-term cash deal with a “to each his own” voluntary reduction pledge - but with non-Kyoto parties at the table.

Some countries criticized the side discussions that led to the Accord as a “back room” deal. In the language of the formal proceedings, the COP only “took note” of the presence of the Copenhagen Accord, and made it an attachment to the proceedings. Despite the informality of how it was developed, other countries were invited to join the Accord, and so far 27, including Australia and the European Union, have signed on with their own pledges. It is indeed a daunting task to try to get 193 countries to agree on anything, let alone something as complicated as addressing climate change, but Maldives President Mohamed Nasheed predicted Saturday that about 120 nations are already engaged in the overall international negotiation process and would sign up with reduction pledges before a 31 January 2010 deadline under the Accord to turn in pledges. If this “back room” approach proves successful, it raises questions as to whether the UN is the most effective forum to address international agreement on climate-change issues.

As we stated in the Day 1 post, the original goal of COP-15 had been an update to the Kyoto Protocol, and development of a Long-Term Cooperative Agreement, and in that it is a half-empty outcome. Negotiating the details of the two prime agreements still needs time, and many issues couldn’t be decided by party negotiators, but needed political decisions at the minister (or higher) level. But when the ministers arrived in Copenhagen, the gaps were too large and the time remaining too short to come to resolution. However, on the half-full side, there were originally four overriding issues that needed to be resolved: (1) How much will Annex I countries reduce their emissions of greenhouse gases? (2) How much will major developing countries such as China and India limit the growth of their emissions? (3) What is financial aid offered by Annex I countries to developing countries to engage in reducing their emissions and adapting to the impacts of climate change? (4) How is that money going to be managed? Looking at these four overriding issues, the Accord addresses but fails to completely resolve all of them. In that, COP-15 was a limited success. Clearly, there is still work to do this year and at the COP next year in Mexico City.