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The International Climate Change Regime: An Overview COST Workshop November 2009 Meinhard Doelle Marine & Environmental Law Institute Dalhousie Law School UN Treaty Neg. Process • Binding treaties are first negotiated for content • There is usually a clause in the treaty that identifies how many states have to “ratify” to bring it into force • Once “agreement” on content, open for signature • Once states have signed, they can ratify UN Treaty Neg. Process • Once enough states have ratified, comes into force • Then binding on states who have ratified • States who have signed but not ratified, are not bound, but can’t circumvent objectives of agreement • States who have not signed are free to do as they please unless content becomes customary international law UN “MEA” Negotiations • MEA’s “usually” start with Framework Convention to deal with principles, process issues, and general objectives • This is then followed with Protocols that have specific targets and measures to get there • Only states who have ratified the Framework Convention can participate in the negotiations of Protocols • Only parties to a Protocol can negotiate its amendment UN MEA Negotiations • Any UN member state can participate – In case of climate change this means those who contribute the most and those who suffer the most • Agreement is by consensus unless otherwise • • • • agreed (which requires consensus) On rare occasions, power is delegated (OLD) Achieving consensus takes time and can lead to lowest common denominator agreements In theory a small country can hold up consensus In practice, small countries have little influence unless they build alliances UN MEA Negotiations • G-77 a product of this dynamic, goes well beyond climate change negotiations, and includes AOSIS, OPEC, African, Asian and S. American developing countries • EU tends to negotiate as a group • UG (a less formal alliance) • Other alliances on an issue by issue basis, such as Environmental Integrity Group, etc The Science is Complex Slide showing energy flux through atmosphere There are many complex interactions and feedbacks within the global climate system Chain of Consequences • Start with Global Average Temperature • Change in Precipitation Patterns • Global, Regional, Local Climate Systems – Wind patterns, ocean currents, sea level, ice… • Impacts on ecosystems, agriculture, forests, fisheries, … • Social, economic, cultural impacts The IPCC is the principal source of advice on climate change science Cautious 1990 1992 First Report Second Report 1995 1997 Increasing Confidence Third Report 2001 2007 Fourth Report UN General Assembly Resolutions •1988 •Recognizes climate change as a common concern of mankind •Establishes the IPCC •1989 •Supports UNEP proposal to prepare for negotiations of a FCCC •Decides to convene UNCED in Rio in 1992 •1990 -Establishes the Intergovernmental Negotiating Committee for the FCCC No signs of integration so far … negotiations eventually led to the UN Framework Convention on Climate Change (UNFCCC) with the following key elements: Principles Objectives Institutions Process Int’l Climate Change Regime UNFCCC Preamble •Reference to relative per capita emissions and contribution to GHG emissions to date •Reference to Developed Countries going first But: •No explicit reference to integrated solutions •No reference to links to biodiversity Int’l Climate Change Regime (UNFCCC) Article 2: Goal •The goal of this convention is the stabilization of GHG concentrations at levels that: •prevent dangerous human interference with climate system, •ensure that rate of change allows nature to adapt, •do not threaten food production, and •allow sustainable development to take place. Future CO2 Levels Depend on What We Do 1000 Projected CO2 Concentrations to 2100 900 BAU 800 Modest Effort 700 600 500 400 High Effort 300 1975 2000 2025 2050 Year 2075 2100 UNFCCC • Article 3: Principles •Equity for present and future generations of humans, •Common but differentiated responsibilities, •Precautionary approach to be adopted. •No principle of integration, no formal encouragement of linkages, could read into equity, responsibility, precaution UNFCCC • Article 4 •Reporting/national inventories of emissions for all Parties •Cooperate in finding solutions to Climate Change •Consider needs of developing countries UNFCCC Article 4.2 • Identifies starting point of returning to 1990 levels of emissions by 2000 •Developed countries only •Voluntary (ie no direct consequences) •Did not work: •Not enough •Very low compliance rate UNFCCC Process of identifying what needs to be done to achieve objectives of Convention • IPCC to advise on the science • UNFCCC secretariat to provide administrative support • COP to meet annually to address substantive issues and develop agreements on how to meet objectives of UNFCCC • Kyoto the first product of this process, took from 1994 to 1997 Bottom Line: UNFCCC allows but does not encourage integration Kyoto Protocol: Broad Overview • Developed Country Targets (Art 3.1, 3.7) •Absolute emission limits •6 GHGs and comprehensive coverage of sources •Focus on total emissions/country • Kyoto Flexibility Mechanisms • Emissions Trading (Art 17, 4, 3.10-13) • Clean Development Mechanism (Art 12) • Joint Implementation (Art 6) Kyoto Protocol: Broad Overview • Sinks to offset emissions (Art 3.3, 3.4) • Estimate, report and verify emissions, sinks and credits (Art. 5, 7, 8) • Ensure compliance (Art 18) • Developing country issues (Art 2, 3, 10, 11) • Entry Into Force (Art 25) Bottom Line: KP allows but does not encourage integration Kyoto Emission Reduction Obligations Party Per cent reduction from 1990 levels European Union -8 Switzerland -8 United States -7 Canada -6 Japan -6 Russian and FSU countries 0 Australia +8 Overall reduction for all Annex I Parties combined is 5.2% Kyoto Emission Reduction Obligations 800 Business-As-Usual 750 GHG 700 Emissions (Megatonnes of CO2 650 equivalent) 748 703 671 600 550 1990 Baseline 599 Mt Kyoto target 563 Mt 500 450 1990 1995 2000 2005 2010 25 Kyoto – Marrakech Role of Kyoto Flexibility Mechanisms •Offset domestic emissions through other means •Different types: • Trade with parties that have their own targets (ET) • Joint projects with parties that have their own targets (JI) • Projects in parties that have no targets (CDM) • Offset emissions with efforts to take GHG out of atmosphere (ie Sinks) •Marrakech Accords set the rules for all this Kyoto – Marrakech: CDM • Clean Development Mechanism (Art 12) • • • • • Baselines Additionality Sustainable development test Small scale projects Process Issues (certify project, verify credits) •Executive Board •National Entities (SD test, Host Party approval) •Operational Entities (works for EB) Kyoto – Marrakech: ET • Emissions Trading (Art 17) •What can you trade? • Is a ton = a ton = a ton? Legally yes, but • What about leakage (Gen, SINKS, CDM) • What about impact on trading, value of the credit? •Who is liable? • Seller or buyer liability, impact on integrity of environmental objective and impact on carbon credit market • Commitment Period Reserve, the compromise •How much can you trade? (Supplementarity) Kyoto – Marrakech: JI • Joint Implementation (Art 6) •Project track • Compare to CDM • Less concern about additionality, as host has GHG limit • Otherwise similar to CDM • Available even when host has reporting problems under Articles 5, 7, 8 •Non-Project (Trading track) • Compare to ET • Only available if host in compliance with Art 5,7, 8 • Can still be project related, but no need to establish baseline and certify, due to impact on host party target Kyoto – Marrakech: SINKS • Sinks (Art 3.3) • Covers change in land use re forests (+&-, mandatory) • Developed Countries (AI) • Credit for Reforestation (1990) • Credit for Afforestation (50 yrs) • Debit for Deforestation •Harvesting cycles not a land use change Kyoto – Marrakech: SINKS Sinks (Art 3.4) • Voluntary, in developed countries (AI) • Land use change other than forests • Management to increase carbon storage • Forest management • Crop land management • Graze land management) • Human induced versus natural • Verification, permanence • Biodiversity impacts Kyoto – Marrakech: SINKS • Sinks (Art 12) •Sinks in CDM •Applies to sinks projects in developing countries (NAI) •General CDM rules apply •Credit for afforestation •Credit for reforestation •No debit for deforestation •No credit for avoided deforestation •Permanence, accountability beyond 1st com period key challenges Forest Land-use Change (3.3) • Article 3.3: The net changes in greenhouse gas emissions by sources and removals by sinks resulting from direct human-induced land-use change and forestry activities, limited to afforestation, reforestation and deforestation since 1990, measured as verifiable changes in carbon stocks in each commitment period, shall be used to meet the commitments under this Article of each Party included in Annex I. … Forest Land Use Change (3.3) • Key Implementation Issues – What is a forest (tree crown cover of more than 1030% with trees that can reach 2-5 meters in height) – How to deal with the harvesting cycle (not considered deforestation, but in case of afforestation and reforestation will affect the credits granted) – Credits for harvested wood products? No Forest Management (3.4) • Article 3.4 The COP shall […] decide upon modalities, rules and guidelines as to how, and which, additional human-induced activities related to changes in greenhouse gas emissions by sources and removals by sinks in the […] and forestry categories shall be added to, or subtracted from, the assigned amounts for Parties included in Annex I, taking into account uncertainties, transparency in reporting, verifiability … Current Forest Management Rules • Accounting for carbon stock from forest management is voluntary • Once you invoke Article 3.4 for a certain area of forest, you have to permanently account for the change in carbon stock of that forest • Currently no separation of natural & human induced change, just credit limits for the 1st CP, #’s loosely based on assumption that 85% of carbon uptake is natural (for Canada limit is 60 MT Carbon) Future of Forest Management • What role should the following play? – Reward efforts to actually increase carbon storage in forests through change in forest management? – Fully account for change in carbon stock from forests over time, regardless of cause – Motivate action where there are synergies between carbon storage & biodiversity – Motivate action where there are synergies between carbon storage & forestry Future of Forest Management • Some Options – Continue with current rules, which are voluntary, & assume a certain mix of natural & human induced – Country specific baselines for BAU change in carbon stock (bottom up or top down?) – Mandatory accounting for change in carbon stock – Exemption for natural disturbances – Credits limited to carbon stock in natural forests Forest Management, Comprehensive or Selective • Proposed focus by some ENGOs arguing for selective approach: – Debit reduction in forest biomass – Debit conversion from forests to plantations – Debit conversion from primary forest to modified natural forests – Credit new carbon stock in degraded forests Forest Management, Comprehensive or Selective • Selective can be good if parties select aspects that encourage integrated solutions • Concern with selective: – Parties will only select what is easy and cheap to get credits for – Parties will leave out what is expensive & likely lead to debits Comprehensive Forest Management • Accountable for all changes in carbon stock of all forests within state, human and natural • Accountable for all carbon taken out of forest (fuel, pulp for paper, other wood products • Debit if carbon returns to atmosphere, credit if used in a way that stores the carbon long term Forest Management, Comprehensive or Selective • Concerns with comprehensive: –Complexity, –Risk of unforeseen consequences on GHG emission reduction, –Risk of sinks becoming a competing land use rather than complementing biodiversity protection and SD Forest Management Choices • Whether to continue with voluntary approach for forest management or go mandatory • How to account for harvested wood products – Harvesting cycle can be positive from carbon storage perspective, but is a threat to biodiversity • Whether to exempt “natural disturbances” Forest Management Choices • Whether to set individual baselines for forest management (bottom up or top down), ie what change in carbon stock is deemed “natural” • The baseline would reflect the characteristics of the forest just before the beginning of the commitment period. This would include : • age class structure, • growth rates, • decomposition rates and • other factors that affect carbon dynamics and GHG emissions. Biodiversity Implications for Forests • Use of forests as sinks is a potentially • competing, potentially complementary land use Rules could be changed to further discourage or encourage activities that are a threat to: – – – – Biodiversity Sustainable resource management Traditional use of forests Other potential uses/benefits of forests Bottom Line: Current Rules do not encourage integration Kyoto – Marrakech: The Fine Print (Art. 5,7,8) • Articles 5, 7, 8 (estimate, report, verify) •All about tracking credits and emissions •Different Credits: AAU, ERU, CER, RMU •What to do with the credits? •Issue Credits (verify and certify) •Trading/Transferring Credits •Retiring Credits (used to meet parties’ obligations) •Canceling credits (eliminated from use) •Recycling credits •Banking credits Kyoto – Marrakech: The Fine Print (5,7,8) • Articles 5, 7, 8 •Tracking the credits held by each party at the end of the first commitment period •ET, JI •Sinks Credits (adjusting AAUs) •CDM Credits •Trades tracked through Transaction Log •Tracking emissions 2008 - 2012 •Estimate (5), report (7), verify (8) •Expert Review team process (conservative adjust) •True up period Meeting Emission Reduction Obligations 800 Business-As-Usual 750 GHG 700 Emissions (Megatonnes of CO2 650 equivalent) 703 671 Domestic Emission Reductions 600 550 748 1990 Baseline 599 Mt Credits Needed for Compliance Kyoto target 563 Mt 500 450 1990 1995 2000 2005 2010 48 Compliance System Overview • The Compliance Process •Referral by Expert Review Team, or any Party •Plenary ((Rules of Proc, Annual Rep to COP…) •Bureau (determines which branch, EB or FB, both?) •Facilitative Branch (all commitments, but no enforcement powers) •Enforcement Branch (focus on Article 3.1, 5, 7, 8) •Composition of each branch: 1 from each of five regions, 2 A I, 2 Non-A I, 1 small island states Compliance through Enforcement • Tools of the Enforcement Branch •Compliance Action Plan •Ton Restoration in 2nd Commitment Period with 1.3 Multiplier (without 2nd period target) •Loss of Eligibility to Sell •Credibility of the Market •Reputation •Integrity of International Rules Work of the Enforcement Branch Case against Greece – Case involved national system for estimating emissions – Responsibility for maintaining system was in transition from one to another consultant – Case came to EB from ERT report – Greece not eligible to use mechanisms until matter resolved in Nov 2008 Work of the Enforcement Branch Case against Canada – Canada failed to have its national registry up and running by deadline – National registry is key to tracking credits by Annex I parties, linked to ITL – Canada got its registry up and running by hearing date – Finding of past non-compliance, but did not proceed further Role of Facilitative Branch •Early detection of problem, advice, assistance •Provision of advice •Facilitation of financial and technical assistance, including technology transfer and capacity building •Formulation of recommendations to a party on what could be done to help a parties comply with its obligations •Only triggered by ERT or a Party Work of the Facilitative Branch 1 Case, brought by SA on behalf of G-77 – Dealt with failure of many Annex I countries to submit report on “demonstrable progress” – FB split on whether the case was brought properly before it by a “Party” – Annex I members opposed taking case on – Case could not proceed – Plenty of other matters have come up (Canada), but not brought before FB by ERT or a Party Concluding Thoughts on The Current Regime •UNFCCC & Kyoto just initial steps along a long path of negotiating and implementing climate regime • Science suggests 25-40% by 2020, ~ 90 % by 2050 needed in AI •KP signals the start of a carbon constrained world •There has been meaningful action in EU, Japan •There have been some efforts in developing countries From Kyoto to Copenhagen •Is the basic architecture of the UNFCCC/KP sound? •What are its limitations? •What needs to change post 2012? •Role of ET, CDM, JI, Sinks? •New targets for developed countries? •Targets for developing countries? •Better help for developing countries? •Alternative approaches? •Will new regime spur innovation? •Will new regime be better integrated with other issues? The Post 2012 Negotiations The Process • The Bali Mandate 2007 • From Poznan to Copenhagen • The LCA AWG • The KP AWG The Bali Mandate (2007) • Formalized a two year process on two tracks to • • • • negotiate the post 2012 regime Raised status of technology and finance to the level of mitigation and adaptation (From 2 - 4 Pillars) Small but potentially significant movement from G77 on mitigation: China, Brazil, South Africa Some signs of acceptance of the IPCC AR4 science on adequacy: 2 C, 400 ppm, 10 yr peak, 80% by 2050 Gradual recognition of the interdependence of developed and developing countries on climate change The Post 2012 Negotiations From Poznan to Copenhagen • Little progress made from Bali to Poznan due to US election • At least five negotiating sessions between Poznan and Copenhagen • Last two were Bangkok in early October, and Barcelona in early November • Comprehensive binding agreement seems increasingly unlikely The Post 2012 Negotiations Track 1: The LCA AWG • Trying to find a place for the US, otherwise not dealing with mitigation by developed countries • Trying to deal with mitigation in developing countries & assistance needed • Also dealing with adaptation, finance, technology and shared vision (i.e. long term targets) The Post 2012 Negotiations Track 2: The KP AWG • Negotiations under the KP • US not a party • Limited to post 2012 mitigation efforts of developed countries (other than US) • New targets + CDM, JI, ET, SINKS • Separation of KP & LCA is making negotiations very difficult The Post 2012 Negotiations The Substance (LCA & KP AWGs) • Shared Vision • Adaptation • Mitigation • Finance • Technology The Post 2012 Negotiations Shared Vision (LCA) • What is the ultimate goal? GHG Concentrations, Temperature, Global Emission Reductions (2050) • How should the overall long term responsibility be allocated? – AI, NAI? – Further differentiation? The Post 2012 Negotiations Adaptation (LCA) • Mainly about adaptation in developing countries • Sources of funding? • How much? • Who will have access? • Under what conditions? • Role of National Adaptation Plans The Post 2012 Negotiations Mitigation (LCA&KP) • Mitigation by AI - comparability, MRV, compliance (including new sinks rules) • Mitigation by NAI – NAMA & support, MRV, NAMA mechanisms • REDD plus – relation to NAMAs, meaning of “plus”, indigenous rights, conversion on natural forests… The Post 2012 Negotiations Mitigation (LCA&KP) • Sectoral approaches – Bunker & aviation fuels, agriculture • Cost effectiveness of mitigation – Role of markets, ET, CDM, JI, new mechanisms • Consequences of response measures – Minimize and/or compensate, help all NAI or just LDCs, what about OPEC? Trade measures to protect domestic industries? The Post 2012 Negotiations Finance: Sources of Funding (LCA) – Private (i.e. CDM) versus public – Pledge based or levies? – Bunker & aviation levy? – Global Levy on GHG emissions ($2 /ton) – Auctioning of AAUs (or levy) – Role of ODA – Which Parties contribute? – How much? The Post 2012 Negotiations • Finance (cont’d) (LCA) – Who has access (All NAI? EITs?) – Under what conditions (Compliance Link?) – For what purpose (mitigation, adaptation, technology, capacity building, REDD?) – What institution administers (GEF, Multilateral Fund under COP, other?) – Reporting, verification, compliance • Compliance, Articles 578, MRV? • Facilitation and/or sanctions? • Contributions v. use of funds The Post 2012 Negotiations Technology (LCA) • What technologies will be included? – About access to wind, solar, efficiency & other technologies – What about CCS, Nuclear, Large Scale Hydro? • Facilitating tech transfer to NAI (EITs?) • Institutional arrangements? (central or de...) • Private and/or public funding • What other measures can be taken? – Changes to Intellectual Property rules??? Legal Architecture • Amend Kyoto Protocol plus new Protocol for US & Developing Countries • Single new Protocol for everyone • Amend Kyoto Protocol plus COP decisions • COP decisions only • COP decisions now, new Protocol(s) later State of the Negotiations • No agreement on targets for developed nations (though some promising signs from Norway, Japan…) • US a real challenge to bring back in, may finally announce a target • Canada, Australia, New Zealand, Russia seem reluctant participants, EU not leading as it used to • All this allows developing countries to resist action, though some have moved Things to look out for: • On what terms does the US re-engage? • Is inequity of positions of States who are blocking progress being exposed? • What is the negotiating capacity of NonAnnex I (other than China, OPEC)? • Bilateral cooperation (i.e. EU–G-77, EU–US, US- China ... ) • LCA and KP processes have moved forward in parallel, will they come together? Key Challenges • US a late comer to mitigation & reluctance to accept international oversight • Preventing Canada, Japan, Australia, NZ, EU from following US out of Kyoto • Inadequate mitigation efforts in many developed countries to date • Adequate finance in current economic climate • Bringing developing countries on board in a fair and meaningful way EU Ambassador to US Recent Quote • `'The rest of the world cannot be expected to sit around the negotiating table in Copenhagen twiddling their thumbs, waiting for the Senate of one country (however big) to deal with other business. And developing countries will not be willing to agree to restrictions on their economic growth in the name of climate change if the United States has not demonstrated that it is prepared to join them. Final Thoughts • We now live in a carbon constrained world • This means we will either be forced to reduce/eliminate emissions or pay • The cost of emitting will go up • The economic opportunities in finding solutions will grow • Future of international regime very much up in the air at the moment • Time for integrated solutions is running out