Intense climate negotiations in Paris have now concluded for the 21st “conference of the parties” (or COP-21) under the United Nations Framework Convention on Climate Change. Until quite late in the process, many big-picture questions remained unresolved, including the enforceability of emissions limitations plans under the agreement, compensation for loss, and the target limit for global temperature rise. The resolution of these questions will be summarized below, with initial commentary on the results of the negations and questions going forward.
Leading up to and during the negotiations, media reports reflected optimism among global stakeholders seeking limits to greenhouse gas emissions, and expectations for an historic deal ran high. This ambitious agenda redoubled during the talks themselves, when low-lying island nations and scientists sought to tighten temperature increase targets from 2 degrees Celsius to 1.5 degrees Celsius. As discussed below, while the agreement reflects a new level of commitment to cutting carbon, the high expectations were not met entirely in the final accord.
Depending on the particularities of each nation’s domestic laws, some or all of the plans outlined in the agreement may be enforceable at the national level. However, the now famous eleventh hour “should” vs. “shall” debate resulted in excluding absolute emissions reductions targets from the legally binding portions of the overall agreement, a change the U.S. delegation required in order to avoid submitting the final deal for Senate approval. Similarly, any clause that would have required financing for climate adaptation and mitigation or expose the U.S. to liability and compensation claims for causing climate change was excluded.
The parts of the agreement that will be legally binding upon ratification require countries to set goals to reduce carbon emissions, meet every five years beginning in 2023, and monitor and report on their emissions levels and reductions. The U.S. had been advocating for an independent, international agency, similar to the International Atomic Energy Agency, to monitor whether nations are complying with these pledged goals. While the agreement did not establish a new agency it instead creates an “enhanced transparency framework for action and support,” which requires each party to provide “a national inventory of anthropogenic emissions by sources and removals by sinks of greenhouse gases” and “information necessary to track progress made in implementing and achieving its nationally determined contribution.”
Temperature rise target
The backdrop for much of the negotiation in Paris is a figure agreed to in the 2009 Copenhagen Accord, “the scientific view that the increase in global temperature should be below 2 degrees Celsius” to avoid dangerous anthropogenic climate disruption.
This figure was called into question in Paris, when relatively late in the process a majority of countries expressed the need for a 1.5-degree Celsius limit to temperature rise. Ultimately, the agreement paid some degree of respect to the 1.5 degree target, but held firmer to the 2-degree target: the 195 countries that signed the agreement agreed to an aspirational goal of “pursuing efforts” towards keeping post-industrial warming to 1.5 degrees Celsius, with the firmer language calling for a limit “well below 2 degrees Celsius.”
This difference in temperature targets could have profound effects on emissions reductions strategies, considering that to date, global average temperature rise has been between a half and one degree. Climate activists, many scientists, and low-lying island nations see 1.5 degrees as a necessary target, and are disappointed at the lack of a firm commitment there. This will place increasing pressure on future climate negotiations to revisit this issue.
Longer term, the Paris agreement contemplates a carbon-neutral future, noting that the countries “aim” to “undertake rapid reductions thereafter towards reaching greenhouse gas emissions neutrality in the second half of the century ….”
Nations arrived in Paris offering voluntary emissions reductions schemes, or “intended nationally determined contributions” (“INDCs”). However, even these pledged emissions cuts do not add up to enough to meet the long-term goal, so the new agreement creates a process, discussed below, in which countries will ratchet up their commitments over time.
A first review, or “stock take,” will be held in 2018 to assess where the world is in relation to its long-term goal and to inform new commitments. In 2020, countries must submit new pledges or resubmit or revise pledges to cover the years 2020 through 2030. Emissions pledges would then be due every five years after that, with the expectation that they would become more ambitious.
Loss and damage
A major question during negotiations was how and whether a liability scheme would be defined to compensate nations for harm suffered as a result of climate change. The current mechanism for dealing with such claims, the Warsaw International Mechanism on Loss and Damage, is largely an international effort to develop data and information on risk mitigation, and does not include enforceable mechanisms to make liability claims.
The Paris agreement continued the Warsaw Mechanism, and did not establish a new liability regime. While a standing “loss and damage” mechanism was created, language from the U.S. was also included that makes it clear that wealthier countries will not be held liable for damages sustained.
Financing Climate Change Adaptation and Mitigation
While many developing and smaller countries wanted a specific dollar number from wealthier countries in the body of the agreement, the goal of $100 billion per year by 2020 is only in the preamble. The operative portion of the agreement reads, “[a]s part of a global effort, developed country Parties should continue to take the lead in mobilizing climate finance from a wide variety of sources, instruments and channels, noting the significant role of public funds, through a variety of actions, including supporting country-driven strategies, and taking into account the needs and priorities of developing country Parties. Such mobilization of climate finance should represent a progression beyond previous efforts.”
Developing countries argue that even the $100 billion goal, pledged in Copenhagen by Hillary Clinton in 2009, would not be enough to finance a power system based on renewable energy sources rather than the readily available and less expensive coal and oil-fired power sources. However, because the U.S. stated that a set dollar amount would require unlikely Senate approval of the entire agreement, the $100 billion pledge was left out of the actual agreement.
Implications for U.S.
The Clean Power Plan (“CPP”) is one component of the U.S.’s COP 21 commitments, with its directive to existing power plants to reduce greenhouse gas emissions 32% below 2005 levels by 2030. Efforts to determine how to implement and comply with the CPP have ratcheted up since the final rule was published in August this year, as has the political and legal controversy. Currently, 27 states have sued EPA in opposition to the CPP, while 18 states have intervened in support of the plan. While waiting on legal outcomes, state regulators and policy makers are weighing the methods of compliance, grappling with choices between mass-based and rate-based reductions and whether to capitalize on multistate approaches. For additional analysis on the CPP, click here. Whether the CPP will remain in its current form as part of the framework of the U.S.’ COP 21 commitments remains to be seen in light of the current legal challenges and 2016 presidential election.
Further, the CPP alone is only expected to account for a quarter of the carbon reductions outlined in the Obama Administration’s 2025 Climate Action Plan, which itself is not expected to meet the U.S.’s INDC commitment of an economy-wide target of reducing GHGs by 26% to 28% below 2005 levels by 2025. Meeting the Paris commitment will likely require carbon reduction in sectors of the economy, such as oil refineries, cement makers, paper processers, chemical companies and other manufacturers, that have not yet seen significant carbon regulation.
We will continue to monitor and report on legal, policy, and industry developments driven by the agreement reached in Paris.
 The near final draft of the agreement included a phrase that read “developed country Parties shall continue taking the lead by undertaking economy-wide absolute emissions targets.” “Shall” was changed to “should” for the final draft. See http://www.eenews.net/climatewire/2015/12/14/stories/1060029452.
 Achieving the United States’ Intended Nationally Determined Contribution, Center for Climate and Energy Solutions, August 2015, available at http://www.c2es.org/docUploads/us-indc-fact-sheet-8-2015.pdf