Previewing the Paris Climate Change Conference Daniel Bodansky

Previewing the Paris Climate Change Conference Daniel Bodansky Arizona State University Civic Exchange November 6, 2015

Overview Evolution of the global climate effort ¡ Lessons learned ¡ Framing for the Paris negotiations ¡ Key issues for a Paris agreement ¡ 11/5/15 2

Development of the UN Climate Regime: A Play in Four Acts Act I 1991 -1994 Act II 1995 -2005 1992 1997 Framework Convention (UNFCCC) Kyoto Protocol General system of governance Negotiated, binding emissions targets 11/5/15 Act III 2005 -2012 2009 Copenhagen Act IV 2012 -2015 2011 2015 2020 Durban Paris Platform Bottom-up Pledges 3

Act 1 UNFCCC ¡ ¡ 11/5/15 Act I 1991 -1994 Act II 1995 -2005 1992 1997 UNFCCC Kyoto Protocol Act III 2005 -2012 2009 Copenhagen Act IV 2012 -2015 2011 Durban Platform 2015 2020 Paris Establishes basic system of governance ¡ Ultimate objective and principles ¡ General obligations to develop national programs ¡ Institutional arrangements No binding emissions targets Negotiations began in 1991, finished in 1992 Convention opened for signature at Rio in 1992, entered into force in 1994 – 195 parties 4

Act II Kyoto Protocol ¡ 1992 1997 UNFCCC Kyoto Protocol Act III 2005 -2012 2009 Copenhagen Act IV 2012 -2015 2011 Durban Platform 2015 2020 Paris Key features: l Internationally-negotiated and -agreed limits on GHG emissions ¡ l l Market-based architecture favored by US Legally-binding ¡ 11/5/15 Act II 1995 -2005 Act I 1991 -1994 Detailed rules, rigorous accounting, compliance mechanism Strong differentiation: targets applicable only to developed countries Developed countries Top-down regulatory approach Internationally-negotiated, absolute emissions targets National policies and measures 5

Act III: Copenhagen / Cancun ¡ ¡ Act I 1991 -1994 Act II 1995 -2005 1992 1997 UNFCCC Kyoto Protocol Parallel nonbinding framework established via political agreement (Copenhagen), followed by set of COP decisions (Cancún) Key elements l l 11/5/15 Bottom-up pledges Not legally binding All countries involved Also goal of limiting GW to 2°, new finance, reporting and review mechanisms Act III 2005 -2012 2009 Copenhagen Act IV 2012 -2015 2011 Durban Platform 2015 2020 Paris Bottom Up Approach International policy National policies and measures 6

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Act I 1991 -1994 Act IV o 1992 1997 UNFCCC Kyoto Protocol Act IV 2012 -2015 Act III 2005 -2012 2009 Copenhagen 2011 Durban Platform 2020 2015 Paris Durban Platform for Enhanced Action (2011) o o o 11/5/15 Act II 1995 -2005 Parties agree to “launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” Agreement to be reached by COP 21 and implemented from 2020 No reference to “common but differentiated responsibilities and respective capabilities” (CBDR-RC) 8

Act IV: What approach to adopt? Kyoto ¡ Top-down regulatory approach ¡ Legally-binding ¡ 11/5/15 Firewall between developed and developing countries Copenhagen/Cancun ¡ Bottom-up ¡ Softer law / political decisions ¡ Greater symmetry, parallelism 9

What is the goal? ¡ Environmental effectiveness is a function of three variables l l l ¡ EE: f(A, P, C) Variables interdependent: l 11/5/15 Ambition Participation Compliance Strengthening ambition does not help if it leads to less participation and/or compliance 10

What is the role of the international climate regime? ¡ Prescriptive model: l ¡ Contractual model: l ¡ Paris agreement memorializes/reflects what states agree to do Facilitative/catalytic model l 11/5/15 Paris Agreement tells states what to do Paris agreement catalyzes, encourages, reinforces action 11

Prescriptive model ¡ 11/5/15 Paris Agreement imposes obligations that make some countries better off and others worse off: winners and losers 12

Prescriptive model ¡ ¡ 11/5/15 Why would countries that would be made worse off agree? And is prescriptive model likely to produce compliance? 13

Contractual model • Paris Agreement based on reciprocity • States accept commitments in exchange for commitments by others. • Pareto superior: everyone better off • Integrative/interest-based bargaining: goal is win-win outcomes – “Getting to Yes” • Contract zone • For negotiations to succeed, there must be a contract zone, i. e. , a set of agreements that leave all participants better off and are acceptable domestically. 11/5/15 14

But the negotiations aren’t easy 11/5/15 15

Why the contractual model isn’t working Climate change issue driven by domestic politics ¡ Most countries not willing to do more, in exchange for agreement others ¡ 11/5/15 16

Facilitative model ¡ ¡ States willing to take action on own Role of international regime l l l 11/5/15 Raises/focuses attention > catalyzes action Transparency focuses soft pressure Assistance to enhance capacity 17

Lessons learned ¡ Kyoto: strong legal and technical rigor, but shrinking participation l ¡ Copenhagen/Cancún: broad participation but low ambition l 11/5/15 2 nd-round targets cover only 13% of global emissions 90+ pledges covering 80+% of emissions fall well short of 2°C pathway 18

Copenhagen/Cancun pledges vs. Kyoto commitments 11/5/15 Source: UNEP Emissions Gap Report (2013) 19

Copenhagen emissions gap Source: UNEP Emissions Gap Report (2010) 11/5/15 20

Hybrid Approach National Flexibility Bottom-Up 11/5/15 International Rules Hybrid Top-Down 21

Rationale for hybridity National Flexibility Promote participation Allow experimentation Risk management > greater ambition 11/5/15 International Rules Promote transparency and accountability Promote reciprocity 22

Hybridity in the Paris Agreement ¡ ¡ Nationally-determined contributions (NDCs) to promote flexibility Multilateral rules to promote accountability, reciprocity l l l 11/5/15 Long-term goal Rules on formulation, presentation and recording of NDCs Rules on revising/updating NDCs Rules on accountability/transparency in implementing NDCs Rules on subsequent rounds of NDCs 23

Framing for the Paris negotiations ¡ Warsaw decision (2013) l l ¡ Parties invited to communicate their “intended nationally determined contributions” (INDCs) to the new agreement well in advance of Paris Explicitly without prejudice to legal nature of contributions Lima decision (2014) l l Guidance on information to accompany INDCs Parameters for Paris ¡ ¡ 11/5/15 INDCs are to represent a progression beyond current undertaking Agreement is to reflect CBDR-RC “in light of different national circumstances” 24

Intended nationally-determined contributions (INDCs) ¡ ¡ To date, INDCs submitted by ~150 countries, accounting for nearly 90% of global emissions Most set some form of emission reduction target l l l ¡ ¡ ¡ 11/5/15 58 are absolute 4 are intensity based (emissions per unit GDP) 62 are pegged to projected BAU All are for 2030 except for US, Gambia, Grenada (2025), Cameroon and Congo (2035) and Armenia (2050) 61 are partly or fully conditional on availability of international support or market mechanisms 28 anticipate using international market mechanisms; 23 others will consider them in the future 25

How the Paris deal is shaping up Structure of outcome ¡ Paris outcome will be a package with a number of different elements: l l 11/5/15 A core agreement Ancillary instrument to house NDCs COP decision(s) adopted at COP 21 or thereafter A political declaration? ? 26

How Paris deal is shaping up Legal character of core agreement ¡ Core agreement will be a treaty within meaning of international law l l ¡ The legal form of an agreement can be distinct from the legal character of specific elements l 11/5/15 Under Vienna Convention, a treaty is “an international agreement concluded between States in written form and governed by international law…whatever its particular designation” What the Paris agreement is called – protocol, accord, etc. – is legally irrelevant Legal agreement can contain both binding and nonbinding provisions 27

How the Paris deal is shaping up Structure of outcome • Timing: What to include, what to put off? • • • Placement: What goes in core agreement vs. COP decision? • • • 11/5/15 Readiness – which elements ready for resolution in Paris which elements need more time? Credibility – which elements essential for Paris outcome to be “climate-credible”? Legal character – legally-binding elements must be in Paris Agreement or have hook Fixed vs. changeable – agreement more difficult to amend > rules requiring change should be in COP decisions Parity – distribution of elements across instruments and their timing 28

How the Paris deal is shaping up Structure of outcome COP 21 Decision Paris Agreement INDCs Decisions Elaborating Agreement Political Declaration? WS 2 Interim Arrangements Ancillary instrument to house INDCS Future COP decisions 11/5/15 29

How the Paris deal is shaping up Long-term vision ¡ ¡ 11/5/15 Agreement likely to reaffirm 2° temperature goal May include a long-term decarbonization / zero net emissions goal 30

How the Paris deal is shaping up Mitigation: NDCs • • • 11/5/15 Agreement will give countries considerable flexibility in defining their NDCs Likely to include procedural commitments to prepare, submit, maintain, and periodically update NDC, and to report on progress in achieving NDC May require submission of NDC as a condition of joining agreement 31

How the Paris deal is shaping up Legally-binding character of NDCs ¡ ¡ 11/5/15 Open issue whether NDCs will be legally-binding l If agreement requires each party to “achieve” or “implement” its NDC, then NDCs could be considered “legally binding” Does legally-binding matter? l Many argue that making NDCs legally-binding would provide greater assurance of compliance l But legal-bindingness does not assure compliance and could discourage participation and ambition l Plus, other factors can also contribute to compliance, including transparency and review mechanisms 32

How the Paris deal is shaping up: Other issues on NDCs ¡ ¡ ¡ 11/5/15 NDCs likely to be housed outside the agreement, in a registry maintained by UNFCCC, rather than in an annex to the agreement Agreement may specify some parameters for NDCs: quantifiable, in part unconditional, progression Agreement likely to specify an ongoing cycle of contributions 33

How the Paris deal is shaping up Differentiation ¡ ¡ ¡ NDCs involve de facto self-differentiation Agreement unlikely to continue explicit differentiation through annexes But agreement may include principles/qualifiers relevant to differentiation l l l 11/5/15 Progression Developed countries to take lead Countries in a position / ready to do so 34

How the Paris deal is shaping up Ambition 11/5/15 35

INDCs relative to 2 -degree pathway 11/5/15 36

How the Paris deal is shaping up Ambition ¡ ¡ 11/5/15 Agreement will likely seek to build ambition over time through periodic global stocktakings of collective progress and updating of national contributions (likely every 5 years) Also likely to set an expectation of “no backsliding” or “forward progression” in the scale, scope and/or type of parties’ contributions 37

How the Paris deal is shaping up Transparency/accountability ¡ 11/5/15 Agreement will likely either l Establish common transparency framework, with built-in flexibility for differing national capacities l Tiered approach, as transition from current bifurcated approach to common framework 38

How the Paris deal is shaping up Carbon markets ¡ Possible roles of 2015 Agreement with respect to linkages among national programs l l l 11/5/15 Prohibit or discourage linkage Silence > legal and regulatory uncertainty Authorize linkage, explicitly or implicitly, but with no details Rules/institutional arrangements developed through either future UNFCCC negotiating sessions or bilateral/plurilateral agreements Establish institutional arrangements and rules 39

How the Paris deal is shaping up Adaptation ¡ 11/5/15 Paris agreement likely to: l Establish a global goal of reducing vulnerability, increasing resilience l Encourage parties to engage in national adaptation planning process and to submit an adaptation communication l Provide for a periodic high-level global stocktaking to share experiences and assess progress 40

How the Paris deal is shaping up Finance ¡ ¡ 11/5/15 Agreement likely will try to enlarge the donor base, by recognizing support from countries ready to provide it Open issue whether agreement will include a post-2020 numerical finance goal 41

Why does Paris matter? ¡ Outcome will fall short on two criteria: l l ¡ But Paris can for the first time establish a durable international framework that: l l l ¡ 11/5/15 INDCs on table in Paris won’t put us on a pathway consistent with 2°C goal Countries’ targets probably won’t be legally binding Gets all the major players on board Provides transparency and accountability Works to promote rising ambition The additive effect: greater confidence that all are contributing their fair share enables each to do more 42

Thank you! 11/5/15 43