Governance & Legal
Paris Climate Agreement: summary of the key points agreed
URL: http://www.lexology.com/contributors/26569/
Global January 14 2016
Read our very useful summary of the key points agreed upon at the recent Paris Summit including the main positive and negative outcomes.
Overview
1. Article 2 -1.5C Limit: Governments have agreed to ‘pursue efforts’ to limit warming to 1.5C above pre-industrial levels. This will be done in a context of sustainable development and efforts to eradicate poverty.
a. Issue: this is very positive as it is a significant drop in the 2C agreed at Copenhagen. However, there are no measures in place to achieve the 1.5C aspiration.
2. Throughout the Paris Text – Mitigation: Parties are bound to prepare and regularly update pledges to curb emissions.
a. Issue: 180 countries had submitted INDCs (intended nationally determined contributions). INDCS are recognised under the agreement, but are not legally binding. The pledges submitted are not sufficient to curb 2C rise. Currently the INDCs will lead to a 2.7C rise or higher.
b.These emissions are expected to be reduced over time. The decision text “invites” countries to write long-term low-emissions strategies by 2020, while the legal agreement says they should “strive” to do this.
c.Issue also with transparency (see below) on national implementation which aims to be “facilitative, non-intransitive and non-punitive” and respectful of national sovereignty.
3. Article 4 – Global Goal: Aim to peak in emissions as soon as possible and a long term global goal for net zero emissions in the second half of the century.
Countries can use ‘sinks’ such as forests to do this.
Developed countries will take the lead but developing are also required to eventually move to emissions peaking and reduction.
The global goal will be reached on the basis of equity and in a context of sustainable development and efforts to eradicate poverty.
Issue: UN IPCC say net zero emissions must be achieved by 2070 to avoid dangerous warming.
4. Article 14 – Stocktake clause: Introduction of a review mechanism to take stock of country efforts every five years. This will inform the efforts of future commitments and aims to increase pledges. Each pledge must be ‘a progression’ and ‘as ambitious as possible’
a.Facilitative dialogue to develop these pledges will begin in 2018. These will inform efforts of future commitments.
b.Countries which have submitted targets for 2025 are urged to come back in 2020 with new targets, while those with 2030 targets are encourages to ‘communicate or update’ them. This process will be repeated every five years, with the first global stocktake under the new Paris deal occurring in 2023.
c.Issue: There is no penalty for countries that miss their emissions targets, but the aim is for transparency rules to encourage countries to do what they say they will do.
5. Article 8 – Loss and Damage Mechanism: Introduction of a mechanism to recognise and address the financial losses vulnerable countries face from climate change. This article is now on par with political statements of mitigation and adaptation.
a. Issue: The US long opposed this as they feared it would lead to compensation claims. To stop this a footnote clause was introduced to state that loss and damage “does not involve or provide basis for any liability or compensation”
6. Article 9 – Finance: Legal obligation on developed countries to continue to provide climate finance to help developing countries adapt to climate change and transition to clean energy. Other countries can provide support voluntarily.
a. More flexible decision texts (outside the legally binding agreement) state that the current flow of $100bn a year is ‘intend[ed] to continue’ beyond 2020. By 2025 there are aims to increase this beyond ‘a floor’ of €100billion a year through a collective agreement.
b.The nature and purpose of this finance isn’t clear, this leaves space for it to be fulfilled by private finance. There are worries that finance will be redirected from existing aid budgets.
7. Article 13 – Transparency: A “facilitative, non-intransitive and non-punitive” system of review will track countries progress. a.Issue: The rules on reporting are flexible, there is recognition of the difficulties developing countries face in gathering this information, however, all countries must report regularly. This is especially important for the US and EU who want to keep an eye on China and avoid ‘carbon leakage’.
8. Article 7 – Adaptation: The deal establishes a “global goal” on adaptation of “enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change”. Countries are bound to engage in adaptation planning that must be submitted and updated periodically.
9. Article 22 – Entry into Force: The deal will enter into force once 55 parties, covering 55% of global emissions have signed up.
Negotiations for the Paris agreement were particularly tense as it had to be carefully crafted to avoid specification as a treaty which would require approval from two-thirds of the US Senate. The Senate is currently dominated by Republicans hostile to action on climate.
The former Kyoto Protocol focused on ensuring legally binding emissions reductions from developed countries alone. This led to the US refusal to take part, a significant loss for the Protocol. For the Paris agreement, the US was adamant that the climate agreement be universal in securing voluntary commitments from every country.
Positives:
Universal adoption. UN has 193 members, 195 countries accepted the agreement.
Unmistakeable intention of the international community to end reliance on fossil-fuels shown by a long-term emissions reduction goal of zero emissions by the second half of this century. This will affect global investment patterns and shift funding from fossil fuels to renewable energy sources.
Five year review cycle of all INDCS – it’s been 20 years since the last targets were set in Kyoto.
Measures to ensure transparency – these ensure it’s tougher to manipulate data and will ensure all players feel they have to look over their shoulder – there are no outliers.
Creates a vision statement for the globe. Creates a new, universal vocabulary with bold objectives that will influence international relations and, therefore, domestic actions.
Negatives
Current INDCs mean a 2.7C rise in global temperatures.
“Strategic ambiguity” of the text means it’s largely not legally binding. The text walks a fine line, binding in some elements like reporting requirement but setting emissions targets for individual country is non-binding
Little enforcement – e.g. the “mechanism to facilitate implementation and compliance” (Article 15) specifically says that it will be “non-adversarial and non-punitive”.
Very vague – We need plans as to HOW we will move to zero emissions and an enforceable roadmap to get there. There is no set date for a peak in emissions, or for the achievement of carbon neutrality. These targets are binding at global level but there is nothing binding for countries involved.
Although there is an important “no-backsliding clause” that obliges all countries to do progressively better, ensuring that planned stocktake and reviews are implemented will be key to securing the needed ambition and commitments.
Credibility of the INDCs – Particular focus on the G20
In terms of the INDCs, it is now well known that they will exceed the required 1.5C rise in temperatures. What is little discussed is whether the named INDCs will be implemented or not to begin with. A recent Grantham Institute Policy Paper __‘Beyond the Targets’__ has assessed the credibility of the signatories in terms of their ability to implement their given INDCs. The key determinants of national policy credibility used in the study are:
coherent and comprehensive legislative and policy basis
a transparent, inclusive and effective decision-making process with sufficient political constraints to limit policy reversal
dedicated public bodies supported by a consultative mechanisms
supportive private bodies
a history of active international engagement on environmental issues
climate-aware public opinion
a track record of delivering on past climate change commitments and no history of policy abolition.
In terms of having credible climate policy sufficiently strong to implement INDCs the analysis identifies three groups of countries among the G20:
For a number of countries most determinants score as ‘largely supportive’ to the credibility of their INDC. These countries include the EU and its individual G20 members (France, Germany, Italy and the UK), as well as South Korea.
Several countries have several determinants which are at least ‘moderately supportive’ to the credibility of their INDC, but display a significant weakness in one determinant. This group includes Australia, Brazil, Japan, Mexico, Russia, Turkey, South Africa and the USA.
A number of countries have scope for significantly increasing credibility across most determinants. These are Argentina, Canada, China, India, Indonesia and Saudi Arabia. The analysis presented in this paper provides insights on where the G20 countries could focus action to boost the credibility of their INDCs. It will also be useful for other developed and developing countries, most of which, while having unique national circumstances, will need to strengthen the credibility of their INDCs to a greater or lesser extent along the main determinants identified in this paper.
SHELL OIL FILES--Newly-discovered Shell documents dating back decades could help strengthen lawsuits aiming to hold the oil major to account for climate damages, climate attorneys say.
COP-28 ANALYSIS-INFO-DOCEMENT
Whilst there is no universally agreed scope or definition of climate change litigation, it is clear that over the last few decades, there has been an upsurge in litigation relating to climate change either directly or indirectly. The ‘first wave’ of domestic cases began in the early 2000s, and were increasing prior to the ratification of the Paris Agreement. However, these were largely unsuccessful. Post-Paris Agreement, strategies have diversified, both in relation to the claims being asserted and the forums in which they are being brought.
Cases against both governments and private emitters have been increasingly based on varied and creative legal arguments including breach of statutory duty, tort, human rights and the public trust doctrine. It is in that context that a new wave of climate change litigation has demonstrated the willingness of not just claimants, but also national and international courts, to countenance that damage to the climate system may cause serious harm to humanity, paving the way for more diverse and fertile opportunities for successful claims.
This article will explore examples of some of these novel arguments and forums:
1. “Climate system damage” tort
On 7 February 2024, the Supreme Court of New Zealand (the “Supreme Court”) handed down judgment in Michael John Smith v Fonterra Co-Operative Group Limited and Others [2024] NZSC 5, where the claimants are seeking to establish liability under a new novel “climate system damage” tort.
In August 2019, Mr Smith, an elder of Ngāpuhi and Ngāti Kahu, and a climate change spokesperson for a national forum of tribal leaders, brought a claim against seven New Zealand companies said to be involved in an industry that either emits greenhouse gases (“GHGs”) or supplies products which release GHGs when burned. Mr Smith alleges that the respondents were together responsible for more than one-third of New Zealand’s total reported GHG emissions in 2020-2021. Mr Smith is pursuing three causes of action in tort: (i) public nuisance; (ii) negligence; and (iii) a proposed climate system damage tort. The respondents applied to strike out the claim. The Supreme Court held that the public nuisance claim should be allowed to proceed to trial. Given that the primary cause of action was not struck out, the Supreme Court also declined to strike out the remaining claims.
The viability and scope of this novel climate system damage tort remains unclear. However, it may involve a duty to cease materially contributing to: (i) damage to the climate system; (ii) dangerous anthropogenic interference with the climate system; and (iii) the adverse effects of climate change.
2. Expanding legal fora: domestic and international
As noted, it is not just new legal arguments that are giving greater scope for climate change litigation, but also the diversity of claimants and an expanding number of forums in which they are being heard.
Domestically, in the UK, the Competition Appeal Tribunal has recently been tasked with assessing whether a number of water companies have exploited their market power to underreport sewage dumps to regulators (Professor Carolyn Roberts v (1) Severn Trent Water Limited and (2) Severn Trent PLC (1603/7/7/23)). Such underreporting has allegedly caused regulators to allow the water companies to charge customers higher prices for sewage services than it would otherwise have been permitted to charge. The claimant argues that stringent legal controls are needed to prevent such companies from abusing their power and causing significant damage to the environment. Following a case management conference in March 2024, the Competition Appeal Tribunal has provisionally scheduled two hearings for September 2024 and January 2025.
On an international level and to great media attention, in April 2024, the European Court of Human Rights handed down its decision in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20), the first example of a climate change related ruling by this court. Members of Verein KilmerSeniorinnen Schweiz, an association comprising 2,000 older women, argued that the Swiss authorities’ lack of action on climate change violated their human rights. In particular, they complained of health problems that are exacerbated during heatwaves, significantly affecting their lives, living conditions and well-being.
The European Court of Human Rights held that the Swiss authorities had breached a number of European Convention on Human Rights provisions. Specifically, it had breached Article 8 of the Convention as it had failed to comply with its duties to implement a relevant domestic regulatory framework to quantify national greenhouse gas emissions. The Court found that Article 8 of the Convention encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.
The case against the Swiss authorities may prove to be a powerful precedent ahead of three other international courts – the International Court of Justice, the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights – hearing similar cases later this year. Furthermore, in explicitly referencing unborn babies and young people, it may influence the outcome of a case brought on behalf of 62 babies and small children against the South Korean government. The claimants in four cases being brought in front of South Korea’s Constitutional Court allege that the South Korean government has violated the country’s constitution by failing to protect citizens from the negative effects of climate change. The case commenced in April 2024 and demonstrates the pressure on states to protect future generations.
However, not all of these cases represent steps forward for climate change activists. For example, in the Swiss case, the European Court of Human Rights simultaneously rejected two other climate-related cases on procedural grounds, including a case brought by a group of six Portuguese young people against 32 European governments. But whatever the fate of individual cases, it is clear that the number and significance of claims relating to climate change is on the rise.