Monday marked the start of COP22 in Marrakech, where climate negotiators meet for a fortnight to transform political climate commitments into definitive action. Following the ratification of the Paris Agreement by 55 countries, representing 55 percent of global emissions, the Paris Agreement became a fully binding legal treaty, albeit one lacking any enforcement mechanisms. It provides goals for greenhouse gas emissions reductions but not, as many observers have noted, the methodology by which that can happen. COP22 is to address this gap by developing the rules, timelines and processes that will guide how the world will limit temperature increases to 1.5 – 2 degrees Celsius.
To build this methodology, parties will have to tackle climate change governance, namely with respect to transparency and reporting, mechanisms to fund the adoption of alternative technologies by developing countries, a compliance structure; and tying it all together, the creation of the CMA (aka “the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement”). The CMA will be the de facto governing body for the Paris Agreement and is made up of those countries of who have joined the Paris Agreement.
A month before the last night’s election the Sandra Day O’Connor College of Law published a document outlining the legal pathways a U.S. President could use to withdraw from the Paris Agreement. There are two major routes.
The slower route would be to withdraw from the Paris Agreement itself. Article 28.1 of the Paris Agreement authorizes a country to withdraw from the agreement without reason or justification. The only limitation is timing. Countries would only cease to have emission reduction and reporting obligations four years after the agreement came into force. If President Trump gives notification for withdrawal on the first day of his term, then the withdrawal would only come into force on November 4, 2020.
Only 12 days after confirmation that the Paris Agreement will come into effect, a smaller but no less significant climate agreement was brokered in Kigali, Rwanda. The Kigali Agreement is an amendment to the Montreal Protocol, which was initially brokered to help patch up the ozone layer, and considered among one of the most effective environmental agreements in history. A creative addition to the Montreal Protocol was, in part, an initiative of U.S. President Barack Obama to bypass the U.S. Senate and make some progress on his climate change agenda.
The Kigali amendments introduce limits to Hydrofluorocarbons (HFC) emissions, a potent greenhouse gas, by using a “common but differentiated responsibility” approach :
“The principle of CBDR as applied to international environmental treaties has two elements: it entitles, or possibly requires, all concerned States to participate in international response measures aimed at addressing environmental problems. Furthermore, it leads to the adoption and implementation of different commitments for States, taking into account their diverse situations, circumstances and capacities, their historical contribution to a problem, as well as their future development needs”
Last week, the federal government formally ratified the Paris Agreement. The year 2023 will mark the first time international progress for greenhouse gas emission reductions under the agreement will be evaluated and whether nations have met their climate commitments. So what if signatory countries are unable to keep their promises?
While the treaty requires countries to report on their progress, the targets themselves are not legally binding.
Last week, against the backdrop of a calm B.C. Coast, the Minister of Environment and Climate Change (“the Minister”), announced that the Federal government is approving the $11 billion Pacific NorthWest LNG Project, subject to over 190 legally binding conditions.
It remains to be seen whether the project is still economically viable. However, if it does go ahead the Pembina Institute argues the BC Government will be incapable of meeting its own legislation-mandated targets for reductions in greenhouse gas emissions.