The Paris Agreement: a new year’s resolution the world won’t keep?

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At the twenty-first session of the Conference of the Parties to the UN Framework Convention on Climate Change (“COP21”), leaders from 195 countries signed a historic agreement aiming “to strengthen the global response to the threat of climate change.”[1] The agreement is the culmination of four years of negotiations between UN Framework Convention on Climate Change (“UNFCCC”) parties to develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties.”[2] The twelve-page Paris Agreement “sets out new commitments for climate action beyond 2020, and potentially through this century,” whereas the twenty-page “Decision” “describes what countries have to do before the Agreement enters into force in 2020.”[3] The Agreement is legally binding, while the Decision adopts the Agreement and “sets out a number of less legally binding ways to approach and observe it.”[4] The goal of the Paris Agreement (“Agreement”), as laid out in Article 2, is threefold:

How will the Paris agreement measure required carbon reductions?
How will nations reduce emissions without enforcement provisions?
(a) Holding the increase in global average temperature to well below 2 degrees C[elsius] above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees C[elsius] above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production;

(c) Making finance flows consistent with a pathway towards low greenhouse gas emission and climate-resilient development.[5]

Article 4, Section 1 of the Agreement “aims to reach global peaking of greenhouse gas emissions as soon as possible . . . and to undertake rapid reductions thereafter in accordance with best available science.”[6] The Agreement includes a voluntary emission-cutting provision that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.”[7] Countries are required to contribute a new national plan for reducing emissions every five years.[8] This provision further requires that “[e]ach Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”[9]

The Agreement also includes an “enhanced transparency framework” for developing countries as well as developed countries.[10] This was an important shift from previous negotiations, which focused solely on developed countries.[11] The Agreement creates “a framework of rules that provide for monitoring and verification as well as financial and technical assistance for developing countries.”[12] While the United States wanted an outside agency to ensure nations meet their emissions-reduction goals, apparently this was a “red line for China and India,” who expressed skepticism about third-party oversight.[13] Article 13 of the final Agreement provides for “an enhanced transparency framework for action and support, with built-in flexibility which takes into account Parties’ different capacities and builds upon collective experience.”[14] Article 13 further requires each Party to provide regular updates on its progress under The Agreement:

(a) A national inventory report of anthropogenic emissions by sources and removals by sinks of greenhouse gases, prepared using good practice methodologies accepted by the Intergovernmental Panel on Climate Change and agreed upon by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement;

(b) Information necessary to track progress made in implementing and achieving its nationally determined contribution under Article 4.[15]

Developed countries are also required to “provide information on financial, technology transfer and capacity-building support” they give to developing countries.[16] The information the Parties submit will then “undergo a technical expert review” and each Party “shall participate in a facilitative, multilateral consideration of progress with respect to efforts . . . and its respective implementation and achievement of its nationally determined contribution.”[17] Article 15 of the Agreement goes on to establish “[a] mechanism to facilitate implementation of and promote compliance with the provisions of [the] Agreement.”[18] This mechanism will “consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is non-adversarial and non-punitive.”[19] Under Article 14, the Parties of the Agreement must conduct a “global stocktake” and “periodically take stock of the implementation of [the] Agreement to assess the collective progress towards achieving the purpose of [the] Agreement and its long-term goals.”[20] The first global stocktake will occur in 2023, and then every five years.[21]

The Agreement’s legal nature was a highly sensitive issue during negotiations, particularly for the United States.[22] U.S. negotiators, who after all represented a Democratic presidential administration, faced the challenging task of crafting a “very particular kind of deal” to make the Agreement “bullet-proof” against Republicans in Congress “in order to insulate Obama and the agreement from attacks.”[23] Because Article II of the U.S. Constitution requires the “advice and consent of the Senate” – not to mention two-thirds approval – to ratify treaties, it was essential that certain aspects of the Agreement not be legally binding.[24] An “executive agreement”[25] can be consistent with the Constitution, “depend[ing] on a mix of factors, including whether it is within the scope of an existing treaty and whether it is consistent with existing U.S. law.”[26]  George H.W. Bush secured the Senate’s ratification of the UNFCCC in 1992, which means the Paris Agreement does not require Senate Approval as long as it is consistent with and within the scope of the UNFCCC, and not creating new law.[27]  In other words, the final Agreement is an enforcement mechanism or instrumentality of the UNFCCC. Without the voluntary emission-cutting provision, the United States and several other countries probably would not—or could not—have adopted the Agreement because it would then require legislative approval.[28]  Other countries and the European Union wanted a legally binding emissions target in the Agreement, and some view this aspect as a weakness in the Agreement.[29]  However, the Agreement probably would not exist without the voluntary emissions targets and may have dissolved like Copenhagen in 2009, which would be a further setback.[30]

Parties to the Agreement include the United States, China, and rapidly industrializing India, demonstrating that even the worst greenhouse offenders are willing to do more to combat climate change.[31]  There is no question the Agreement is a significant step in limiting climate change and the loss or damage resulting from it.  However, there is a question as to what the Agreement will actually accomplish given its ambitious, perhaps unattainable goals.  The challenges in achieving its goals are illustrated by the fact that the people of Beijing were facing air pollution levels “up to ten times the level considered safe by the [World Health Organization]” even as COP21 was being held,[32] and Republican presidential candidates and members of Congress were criticizing the “overblown” concern over climate change and voicing opposition to the Agreement.[33]  Another challenge is the Agreement’s legal nature, as certain of its provisions are binding while others are non-binding.[34]  As Trevor Noah of The Daily Show put it, “what the Paris Agreement has done is basically signed the Earth up for a gym membership . . . we still have a long way to go, we have to follow through and actually work out, but this is still a huge step in the right direction.”[35]  This seems like an appropriate analogy, and only time will tell if parties to the Agreement follow through and begin reducing emissions in 2020, when it takes effect.

While the Agreement marks a significant moment and step in dealing with climate change, and its lofty goals are admirable, only time will tell if these goals are in fact attainable. Getting nearly 200 countries to agree to these very ambitious goals is certainly a remarkable feat in itself.  However, getting these same countries to follow through on the Agreement’s promises is likely the more formidable challenge. The Agreement sends a strong and unified message that companies and governments should invest more in green energy resources and move away from fossil fuels. The Agreement encourages private and public investment in green technology by focusing on adaptation through technological advancements, rather than just mitigation of climate change.[36]  As one climate change policy expert stated, “[t]he world finally has a framework for cooperating on climate change that’s suited to the task . . . .  Whether or not this becomes a true turning point for the world, though, depends critically on how seriously countries follow through.”[37] It seems the mood surrounding this Agreement is best described as “cautiously optimistic.”  The Agreement establishes the first universal international agreement on climate change and provides a way for Parties’ to effect necessary change.  Only time will tell if the Parties’ follow through with the Agreement’s promises.


[1] Paris Agreement, art. 2, available at http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf (the “Agreement” begins on page 22 of the combined file, while a related document known as the “Decision” runs through page 21).

[2] Decision #1 CP/21, at 1; see also Daniel Bodansky, In Brief: Legal Option for U.S. Acceptance of a New Climate Change Agreement, Ctr. for Climate & Energy Sol’ns, available at http://www.c2es.org/docUploads/in-brief-legal-options-us-acceptance-new-climate-change-agreement.pdf.

[3] Gerard Wynn, Decoding the Paris Climate Agreement, Energy & Carbon Blog, Dec. 12, 2015, http://energyandcarbon.com/decoding-paris-climate-agreement [https://perma.cc/CDH3-WPUK].

[4] Robinson Meyer, A Reader’s Guide to the Paris Agreement, Atlantic, http://www.theatlantic.com/science/archive/2015/12/a-readers-guide-to-the-paris-agreement/420345 [https://perma.cc/6K2J-4UDG].

[5] Agreement, art. 2, supra note 1.

[6] Agreement, art. 4, supra note 1.

[7] Agreement, art. 4, § 2, supra note 1.

[8] Agreement, art. 4, supra note 1.

[9] Agreement, art. 4, § 3, supra note 1.

[10] Agreement, art. 13; Decision,  91, supra note 1.

[11] Suzanne Goldenberg, How US Negotiators Ensured Landmark Paris Climate Deal was Republican-Proof, Guardian, Dec. 13, 2015, http://www.theguardian.com/us-news/2015/dec/13/climate-change-paris-deal-cop21-obama-administration-congress-republicans-environment [https://perma.cc/3N7K-WLEY].

[12] Joby Warrick & Chris Mooney, 196 Countries Approve Historic Climate Agreement, Wash. Post, Dec. 12, 2015, https://www.washingtonpost.com/news/energy-environment/wp/2015/12/12/proposed-historic-climate-pact-nears-final-vote [https://perma.cc/2NQU-Z7GU].

[13] Meyer, supra note 4.

[14] Agreement, art. 13, supra note 1.

[15] Agreement, art. 13, supra note 1.

[16] Agreement, art. 13, § 9, supra note 1.

[17] Agreement, art. 13, § 11, supra note 1.

[18] Agreement, art. 15, § 1, supra note 1.

[19] Agreement, art. 15, § 2, supra note 1.

[20] Agreement, art. 14, § 1, supra note 1.

[21] Agreement, art. 14, § 2, supra note 1.

[22] Jeff McMahon, John Kerry Calls for Climate Agreement With ‘Legally Binding Transparency System’, Forbes, Dec. 9, 2015, http://www.forbes.com/sites/jeffmcmahon/2015/12/09/john-kerry-cop-21-paris-climate-conference-legally-binding-agreement.

[23] Goldenberg, supra note 11.

[24] Elliot Diringere, Will the Paris Agreement be a Legally Binding Treaty?, Ctr. for Climate & Energy Sol’ns Blog, Nov. 13, 2015, http://www.c2es.org/blog/diringere/legally-binding-agreement-not-all-parts-could-be-binding [https://perma.cc/ZB67-XAEX].

[25]Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Coral Davenport, Nations Approve Landmark Climate Accord in Paris, N.Y. Times, Dec. 12, 2015, http://www.nytimes.com/2015/12/13/world/europe/climate-change-accord-paris.html.

[31] Meyer, supra note 4.

[32] Tom Phillips, Smog-hit Beijing Residents Told to Stay Positive and Drink More TeaGUARDIAN, Dec. 9, 2015, http://www.theguardian.com/world/2015/dec/09/beijing-residents-told-to-be-positive-as-smog-crisis-continues.

[33] Goldenberg, supra note 11.

[34] Justin Worland, What to Know About the Historic ‘Paris Agreement’ on Climate Change, Time, Dec. 12, 2015, http://time.com/4146764/paris-agreement-climate-cop-21 [https://perma.cc/2KLE-W3UA].

[35] The Daily Show with Trevor Noah, Comedy Central, Dec. 14, 2015, available at http://www.cc.com/video-clips/fob5dy/the-daily-show-with-trevor-noah-ted-cruz-jeopardizes-the-cop21-climate-deal.

[36] Agreement, art. 10, 11, supra note 1.

[37] Davenport, supra note, 23. 


Posted by Madison L. Beveridge on Tue. January 12, 2016 7:20 PM
Categories: Climate Change, International regulatory coordination, Reports (longer, analytical blog posts)

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