Toothless Paris Treaty Won't Stop Climate Change

Fairfax - Leonid Bershidsky

Our success in dealing with climate change depends on scientists and markets, not political leaders and diplomats.
Obama praises Paris climate change agreement
The US president says the deal offers the best chance to save the planet from the effects of global climate change.

As 195 countries hammered out an agreement to minimise climate change, the town council of Woodland, North Carolina, met to ban a solar farm on its land and prevent all future attempts to establish one of these devilish installations. One speaker, a retired science teacher no less, opposed the green energy project because she claimed it would soak up all the sunlight and kill plants in the vicinity.

The Paris agreement has parts that are specific and parts that are binding – but never both at once. 

The Paris agreement is powerless to counter such moves. Article 12 states: "Parties shall co-operate in taking measures, as appropriate, to enhance climate-change education, training, public awareness, public participation and public access to information, recognising the importance of these steps with respect to enhancing actions under this agreement."

Activists gather during a demonstration on the final day of the COP21 conference in Paris. Photo: AP

And yet this commitment is as unenforceable as the rest of the document. Politicians have congratulated themselves just the same. US President Barack Obama said he believed "this moment can be a turning point for the world" and World Bank President Jim Yong Kim said the deal "finally reflects the aspiration, and the seriousness, to preserve our planet for future generations". And, indeed, reaching any kind of consensus after months of preparation and weeks of exhausting talks can be cathartic. But the Paris agreement has parts that are specific and parts that are binding – but never both at once.
In November, before the COP21 conference began, US Secretary of State John Kerry said it would not produce a binding treaty requiring every country to cut greenhouse gas emissions to a specific level. That earned him a reprimand from French President Francois Hollande​, who insisted the agreement would be rock solid: "If the agreement is not legally binding, there won't be an agreement, because that would mean it would be impossible to verify or control the undertakings that are made."
A month later, here is how Politico described a key moment in the deal's passage: "Deep in the legally binding part of the final draft agreement, Article 4, the text said wealthier countries 'shall' set economy-wide targets for cutting their greenhouse gas pollution, rather than 'should'. The words may be interchangeable outside the negotiating rooms, but in UN-speak, 'should' isn't legally binding, while 'shall' is. That would have forced US President Barack Obama to submit the final deal to the Senate, where the Republican majority had promised to kill it. Instead of protracted negotiations, [French Foreign Minister Laurent] Fabius​ treated the language as a typo, pushed through a quick amendment to the text. Seconds later, he banged his gavel and the deal was done.

The international agreement struck in Paris acknowledges climate change but it does not oblige countries to do anything about it. Photo: Francois Mori

The final version, of course, says "developed country parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets".
Thanks to that, and to its general vagueness, the deal won't require ratification by the US Congress, where the vote was likely to go as it did in Woodland, North Carolina. Kerry's goal has been achieved: the US won't be blamed for killing off a global effort to slow down climate change. Yet it's Hollande and Fabius who are taking the credit for engineering a diplomatic breakthrough.
What the deal actually does is set a tentative target – to keep global warming to no more than 2 degrees Celsius above pre-industrial levels (that allows for a remaining increase of about 1.1 degrees) and to try limiting it to 1.5 degrees – and it instructs each participating country to regularly publish its own plans for contributing to this effort. The negotiators call this a "framework," and the requirement to produce the plans is binding; but nobody has taken on any obligations to comply with any common plan, and there is no punishment for treating the emissions-reducing programs as a formality or never following through on them.
Apart from the temperature goal, there's just one specific number in the agreement (its non-binding part): $100 billion a year, the amount of assistance to be provided by developed nations to developing ones so they can make their energy industries cleaner and greener. That number was already part of the previous climate accord, reached in 2009 in Copenhagen. This level of funding was supposed to be reached by 2020. Since 2009, however, governments and environmentalists have failed to agree what kind of financing to include in the $100 billion. For example, do loans issued on market terms qualify? If they don't, the $100 billion goal is hardly achievable.
A report from the World Resource Institute, published earlier this year, put the total climate finance from developed nations and international institutions at $42 billion in 2012 and projected it could reach $77 billion by 2020 under a medium-growth scenario. Only private-sector funding can drive it up to more than $100 billion a year, and even if it does, it's not clear whether this will keep global warming to the 2 degree target. In 2010, the World Bank put the necessary funding at $275 billion a year.
International diplomacy is useful in getting governments, with all their diverse goals and problems, to agree on common goals. It's important there is an international agreement in which most of the world's nations acknowledge climate change and the need to do something about it. That, however, is all the Paris deal is good for.
In the real world, the energy transition is all about developed nations' isolated efforts to cut emissions. Germany and some of its European neighbours, such as Denmark, have gone a long way and paid dearly to become greener. In the process, they have created markets for the technology and equipment needed for sustainable energy. These markets are still shaky, but they're growing less dependent on subsidies.
There will be further technological advances – mostly in developed nations, too. Last week, Germany's Max Planck Institute turned on a revolutionary fusion reactor that might make waste-free, safe energy generation commercially feasible in the coming decades.
When the costs of the green technology are low enough for developing countries to adopt them, they will do so without much prompting. The richer nations' contribution is in developing, testing and scaling the technology. The diplomats and politicians might like to get in on the process and help it along, but the future of climate change depends on scientists and markets. All governments can do is make sure they are not hampered: The world is full of Woodland town councils.

Links

• Paris climate deal: What you need to know
• Heat turned up on Turnbull's climate policies
• UN climate conference: Full coverage

Climate Change Deal: Five Reasons To Be Glad, Five To Be Gloomy

The Guardian - John Vidal

Will the deal agreed in Paris be enough to save the planet? Emissions cuts and investment are promised, but legal responsibilities are thin on the ground

A world map showing climate anomalies at the summit in Paris. Emissions targets are set, but does the agreement buy us enough time? Photograph: Stephane Mahe/Reuters

Why we should be glad

1 If temperatures can be held to a rise of 1.5C, catastrophe may be averted
There is now a glimmer of hope for developing countries that climate change will be addressed and that a fossil-free world is achievable. Short- and long-term targets to decarbonise are now enshrined in law, countries have made individual commitments, there is more awareness of the problem, and governments have all agreed to act. Over time, countries have agreed to "peak" their emissions in return for better access to technology. Low-lying islands, delta regions and coastal cities remain highly vulnerable to sea level rises and surges, but if temperatures can be held to a rise of 1.5C, mass migration and catastrophe may be averted for hundreds of millions of people.
2 Targets are set, and governments can be held to account
Nearly all developing countries have put forward their "intended nationally determined contributions" – to show what they plan to do over the next 20 years to reduce their emissions. These range from planting tens of millions of trees and developing solar power, to reducing emissions from coal and cutting subsidies for fossil fuels. Many countries, like Morocco and Ethiopia, are highly ambitious. Most are dependent on money being made available from carbon financing via the Green Climate Fund. Importantly, all the plans are public, which allows civil society to hold governments to account more easily and to press for cleaner development. The climate justice movement is now global and the meeting could mark a turning point for the balance of power.
3 Air pollution and the importance of preserving forests are now under the spotlight
The Paris talks put climate change and health firmly on the global agenda, with the WHO and other bodies recognising that polluted indoor and outdoor air is now the greatest environmental killer in developing countries and that climate change threatens to add millions of deaths a year from increased rates of disease if it is not addressed. This recognition may help direct aid flows and national priorities. Tropical countries should also benefit financially protecting their forests. This includes payments for reducing emissions from deforestation and degradation (REDD+) and incentives to replant.
4 Much greater investment in renewable technology is promised
All the big development banks, including the World Bank, and the Africa and Asia development banks, have embraced the deal and pledged to greatly increase lending for low-carbon projects over the next 20 years. Far more money should now go into solar, wind and other renewable technologies and research, and less will go into fossil fuel developments and possibly mining. A welter of low-carbon schemes were announced at the meeting, including one that could result in Africa becoming powered primarily by renewables.
5 Vulnerable countries will get $100bn a year to help adapt to climate change
From 2020, developed countries, with help from some richer developing countries like China and Singapore, will make available $100bn of "new and additional" money a year for vulnerable countries to help them adapt to climate change. This is nowhere near enough, but the figure will be regularly scaled up. Much of it will come via the Green Climate Fund, which is half-controlled by developing countries.

Why we should be gloomy

1 Countries will wriggle out of their commitments
Although the Paris agreement is, overall, legally binding, much of the detail is not. Countries will not be forced to do more than they want, nor will there be any redress if they do not achieve their targets. The 70-year history of multilateral UN agreements suggests that countries will avoid their commitments if they can.
2 The agreement buys us time, but will it be enough?
Countries have not pledged to cut anywhere near enough to avoid the worst effects of climate change and we are still heading for a 3C warmer world in which developing countries are hit the hardest, first. The Paris agreement possibly buys time, but to hold temperatures to a 1.5C rise will require a transformation in the way that rich countries consume and generate power. To have any hope of this, countries will have to rapidly cut emissions to practically zero by the second half of the century, and the agreement does not force anyone to do more than they feel able to do.
3 Most agreements benefit big business over small landholders
The world's most vulnerable people may be in more danger than before of being kicked off their land and having their human rights infringed because most agreements favour big corporations rather than small landholders and farmers. The "green economy" proposed by the agreement makes the trading of carbon central to protection and farming, a development that is widely rejected by peasant, smallholder and indigenous peoples' movements worldwide. Any money generated from carbon markets is also unlikely to reach the poorest people because it will go through governments, which have different priorities.
4 Climate change assistance may be funded by diverting aid
Although $100bn a year has been pledged for developing countries, this does not start till 2020, and is inadequate. It will be progressively scaled up but this is nowhere near what will be needed in a warmer world where weather-related disasters are expected to intensify and millions of people may be forced to permanently move because of sea level rises, disruptions to farming and intolerable heatwaves. There is also a real danger that "climate" money will be diverted from existing overseas development assistance, or other aid flows, and could be double-counted. No agreement has been reached on what constitutes "climate money" , how it should be counted, when or to whom it should be delivered, or to what it should be directed.
5 There is no legal responsibility for rich countries to help poorer ones with adapting to climate change
The Paris agreement actually weakens the existing responsibility of rich countries to provide finance to poorer countries to help them adapt. Although the Kyoto agreement made it a legal responsibility for rich countries to help poor nations, that responsibility is now voluntary and shared between all countries. Moreover, the money to be made available is not guaranteed from the public purse. Instead, finance will come largely from unpredictable "market mechanisms" such as carbon offsets, with relatively little expected to derive from guaranteed public funds.

Forcing Government Action On Climate Change: Two Noteworthy Legal Initiatives

Countercurrents.org - David Bollier*

While much of the momentum to fight climate change is focused on political channels, there are parallel efforts using law to force government to take specific, enforceable actions to reduce carbon emissions. It's a difficult battle, but in recent weeks two notable initiatives have gained further momentum – a court ruling relying on the public trust doctrine and a new human rights declaration that has broad international support.
The court ruling is related to a series of lawsuits brought by young people invoking the public trust doctrine to force governments to protect the atmosphere. Orchestrated by the advocacy organization Our Children's Trust, the Atmospheric Trust Litigation suits have been filed in all state courts and in federal courts.
On November 19, one of those lawsuits succeeded. A superior court judge in Seattle issued a ruling that strongly recognizes the public trust doctrine as a applying to the atmosphere. The case sought to uphold science-based plans for carbon emissions reductions developed by Washington State's Department of Ecology, as a way to protect the atmosphere for eight young people (the plaintiffs) and future generations.
The ruling is especially significant because it echoes a recent ruling by a New Mexico court that also strongly upholds the constitutional principle that the public trust doctrine applies to the atmosphere.
COP21 negotiators, are you listening?
The public trust doctrine is a ancient legal principle that requires government to act as a faithful trustee of resources that belong to the general public and future generations. Historically, this has applied primarily to navigable waters. The Atmospheric Trust Litigation suits want the courts to apply the public trust doctrine to the atmosphere as well, thereby forcing state governments and the federal government to commit to specific actions to reduce carbon emissions.
Judge Hollis R. Hill in Washington State declared that "[t]he state has a constitutional obligation to protect the public's interest in natural resources held in trust for the common benefit of the people." He found the public trust doctrine mandates that the state act through its designated agency "to protect what it holds in trust." The judge also held that it was "nonsensical" to try to separate navigable waters from the atmosphere in applying the public trust doctrine because the two are inextricably linked.
The court validated the youths' claims that the "scientific evidence is clear that the current rates of reduction mandated by Washington law...cannot ensure the survival of an environment in which [youth] can grow to adulthood safely." The judge determined that the State has a "mandatory duty" to "preserve, protect, and enhance the air quality for the current and future generations," and found the state's current standards to fail that standard dramatically for several reasons.
The ATL lawsuits are potentially significant because they signal that even if the political branches of government will not uphold science-based climate policies to protect the public, the courts will. We need more such rulings that the government has a constitutional obligation to protect the atmosphere as a public trust asset crucial for the survival of our children.

Draft Declaration on Human Rights and Climate ChangeThere is another important legal initiative that is gaining attention -- the Draft Declaration on Human Rights and Climate Change. The Declaration, prepared by the Global Network for the Study of Human Rights and the Environment, invokes some of the most venerable human rights statements in history before going on to present "an alternative formulation of rights that foregrounds human rights while simultaneously protecting the rights of non-human living beings and systems from climate harms."
Here are the first six principles of the Draft Declaration:

1. Human rights and a profound commitment to climate justice are interdependent and indivisible.
2. All human beings have the right to a secure, healthy and ecologically sound Earth system and to fairness, equity and justice in the provision of climate resilience, adaptation and mitigation.
3. All human beings have the right to a planetary climate suitable to meet equitably the needs of present generations without impairing the rights of future generations to meet equitably their needs.
4. All human beings have the right to information about and participation in decision-making related to alterations to the physical environments they rely upon for their health and survival.
5. All human beings have the right to the highest attainable standard of health free from environmental pollution, degradation and the emissions of environmental toxins and to be free from dangerous anthropogenic interference with the climate system such that rising global temperatures are kept well below the tipping point of two degrees centigrade above preindustrial levels.
6. All human beings have the right to investments in adaptation and mitigation to prevent the deleterious consequences of anthropogenic climate change, and to timely assistance in the event of climate change driven catastrophes.

The Declaration is open for amendment until February 19, 2016. You can endorse the Declaration or suggest amendments by emailing Kirsty Davies at kirsty.davies/at/mq.edu.au. It is already anticipated that the next draft will focus more explicitly on indigenous rights and emphasize "the presuppositional need for direct protection of the living order as a condition for fulfilling human rights in the era of climate change."

 *David Bollier is an author, activist, blogger and consultant who spends a lot of time exploring the commons as a new paradigm of economics, politics and culture. He recently co-founded the Commons Strategies Group, a consulting project that works to promote the commons internationally. He was Founding Editor of Onthecommons.org and a Fellow of On the Commons from 2004 to 2010. He has written eleven books and co-edited a twelfth . He has two forthcoming books: The Wealth of the Commons: A World Beyond Market and State (September 2012, Levellers Press), co-edited with Silke Helfrich; and Green Governance: Ecological Survival, Human Rights and the Commons (early 2013, Cambridge University Press), co-authored with Professor Burns H. Weston. His blog is http://bollier.org