ENDS Europe Daily, Dec. 20, 2009

Climate accord ‘must be adopted to unblock funds’

The EU will not release the €2.4bn a year “fast-start” climate funding it has pledged for developing countries until all parties to the UN Framework Convention on Climate Change (UNFCCC) adopt the Copenhagen Accord, a European Commission official said on Tuesday.

“The cash can’t start flowing until the Copenhagen Accord is adopted by all countries,” the official said. The comments were made at a meeting of environment ministers on Tuesday during which the ministers discussed the outcome of December’s UN summit.

The ministers will hold a more detailed debate on the summit and possible next steps at an informal meeting in Seville on 15 January. The EU should not show its dissatisfaction with the outcome by threatening border tax adjustments, Swedish environment minister Andreas Carlgren said.

“This is a decisive moment in choosing whether to continue pushing for a global agreement or going for a fragmented approach. [Such threats] would take us in a fragmented direction,” Mr Carlgren said. Many ministers blamed the US and China for the failure in Copenhagen.

During the meeting Sweden gave an update on council discussions on proposals to limit CO2 emissions from light commercial vehicles. The council generally supports the proposed limit of 175 grams per kilometre, but there is no consensus yet on when it should be introduced.

Member states are also split on whether a proposed limit of 135g/km for 2020 should be weakened or made tougher. Some countries also reiterated the fines proposed by the commission for van manufacturers exceeding the limits are too high.

Climate summit: Copenhagen Accord in detail

AN INITIAL ASSESSMENT OF THE COPENHAGEN OUTCOMES1
Rob Fowler,
Law School,
University of South Australia

Has Copenhagen been a failure or a success? Whilst opinions inevitably will differ widely, the most likely answer is that the principal outcome – the Copenhagen Accord and two supporting decisions of the Parties to the COP15 and CMP5 respectively – is neither. For many, the inability of the meeting to adopt a legally binding agreement or to address in detail many of the core issues on its agenda will be seized upon as clear evidence of failure. Others will draw comfort from the fact that the meeting did not collapse and managed at the very last moment to produce a political agreement that at least continues the negotiation process and contemplates the possibility of a binding agreement in one year’s time. Proponents and opponents of national initiatives to address climate change will predictably choose the view that suits their wider agenda.

Consistent with the “glass half full” view, US President Obama said in his press conference before departing Copenhagen (whilst the meeting continued on for the rest of the night and well into the next day) that the Accord is a “first step” towards a new era of international action, whilst also acknowledging that much more work will need to be done to secure legally binding measures. In fact, the signals several weeks before the meeting were clear that no binding legal agreement was going to be possible in Copenhagen, given the lack of progress in the preparation of draft text by the two Working Groups assigned this task. It is therefore no surprise that the form of the outcome from Copenhagen is a political “accord” that lacks any formal legal status.

However, the Copenhagen Accord does contain some elements that can be argued to constitute a step forward from the current situation by providing for:
(i) developed (Annex I) countries to identify by 31st January 2010 new commitments to be made by them with respect to emissions reductions by 2020 (cl.4 and Appendix I);
(ii) the identification of nationally appropriate mitigation actions (NAMA’s) by the non-Annex I (developing) countries other than the LDC’s and small-island developing states – to be set out in an Appendix to the agreement that is to be completed at first instance

1 This assessment was prepared by the author on 19-20 December 2010 in Copenhagen, initially whilst the meetings of the COP and CMP continued into the mid-afternoon of Saturday 19th December. The UNFCCC Secretariat posted on its web-site immediately after the meeting the provisional text (advance unedited versions) of all of the decisions made by the COP and CMP in Copenhagen; these are available at http://unfccc.int/2860.php . The Copenhagen Accord is available at: http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf . For a summary of the key decisions of the COP/MCP, see Appendix 1 hereto.

by 31st January 2010 and which may be subsequently added to (see Cl.5 and Appendix 2);
(iii) a commitment by developed countries to contribute funding approaching US$30 billion over the next three years to support both mitigation and adaptation activities in developing countries, with adaptation funding to be focused on the LDC’s and small-island states;
(iv) a commitment by developed countries to a goal of jointly mobilizing US$100 billion per year by 2020 for mitigation action, conditional upon transparency with respect to the implementation of mitigation actions; and
(v) the establishment of a High Level Panel to explore potential sources of revenue and the Copenhagen Green Climate Fund to support mitigation and adaptation projects under the Convention.
Two separate decisions of the meeting are also significant. The mandates of the AWG-LCA and the AWG-KP have been extended with requests to present the outcomes of their work to COP 16 and CMP 6 in Mexico City in December 20102

Despite the positive elements of the Accord and related decisions, a closer examination reveals that many of the key issues that it was hoped would be addressed in Copenhagen have been left unresolved. Indications are that this was due to the refusal of China and India in particular to accept many of the various proposals put forward on these matters. Despite indications by President Obama and others that the intention is to secure legally binding commitments in Mexico City, neither decision contains any reference to a legally binding instrument in the extended mandate granted to each Working Group. Some countries, including China, India and Saudi Arabia, objected to the inclusion of a reference to a “legally binding instrument” in the extended mandate for the AWG-LCA and as a result it was not included.

The following analysis summarizes the situation with respect to the more significant issues that were on the agenda in Copenhagen. It focuses in particular on the Copenhagen Accord and the two, related decisions of the COP/CMP. . In this respect, the Copenhagen meeting, which attracted the presence of 119 heads of state and was claimed to be the largest such gathering ever held outside by the United Nations, may have heralded a new global geo-politic in world affairs. It may also have brought into serious question the feasibility of the current consensus model for the negotiation of global agreements of the kind proposed with respect to climate change. An intensive negotiation process over two years, culminating in two weeks of frantic meetings often extending well into the night, managed to produce only an extremely modest outcome. It is therefore questionable whether a repeat of this process over the next 12 months will be any more productive or successful. However, at present, this is the only process open to Parties and it will therefore be likely to continue in the same way.

2 See re AWG-LCA: http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_lca_auv.pdf and re AWG-KP: http://unfccc.int/files/meetings/cop_15/application/pdf/cmp5_awg_auv.pdf
3 This observation is purely “hearsay”, and is based on consultations by the author with observers who were close to the negotiations.

(1) The legal status of the Copenhagen Accord
The exact status of the so-called “Copenhagen Accord” is unclear. It was reported to have been negotiated by a small group of parties (USA, China, India, Brazil and South Africa) and was then submitted to the COP with the intention that it would be agreed through a decision of the COP and become operational immediately. However, a small number of Parties (including Tuvalu, Bolivia, Venezuela and Pakistan) indicated that they could not support the Accord. As a result, and in order to avoid having to record dissenting votes, the COP decided simply to “take note” of the Accord. Parties to the Convention will be able to associate with the Accord subsequently (an “opt in” process) by having their names included in a chapeau to the document by the UNFCCC Secretariat. Thus, unlike other soft-law instruments such as the Rio Declaration that emerged from the Earth Summit in 1992, the Parties did not sign or adopt this instrument at the Copenhagen meeting.
This affords the Copenhagen Accord a unique status in international law, having emerged from, but not been adopted by, the conference. It most probably fails to achieve even the status of a “soft-law” instrument and thus constitutes the most minimal outcome conceivably possible from the Copenhagen meeting, short of a complete failure altogether.

This outcome is an indication of the huge challenge that faces negotiators over the next 12 months in pursuing binding legal commitments from the Parties. President Obama, in his remarks before leaving Copenhagen, noted that there is a “fundamental deadlock” in relation to the setting of binding targets, with further, legally-binding commitments from the Annex I countries being made dependent by them on corresponding commitments by the major developing economies, who in turn are unwilling to give such commitments. This issue will now have to be pursued through the further negotiations in the two AWG’s4
(2) The legal form of future arrangements , but almost certainly will not be resolved until the Parties reconvene at COP 16/CMP6.

The meeting has failed to resolve a core issue concerning the legal form or “architecture” for future arrangements. The United States and many other Annex I countries urged the replacement of the Kyoto Protocol with a new Protocol under the Convention that would include mitigation commitments for the United States and the major developing economies such as China, India and Brazil. This was met with fierce resistance by the G77 plus China, the Gulf countries and AOSIS, who all argued that the Annex I countries should continue to be bound by the Kyoto Protocol and set new targets for themselves under it. They proposed a “two-track” process involving both an amended Kyoto Protocol and a new instrument that would implement the key elements of the Bali Action Plan.
The Copenhagen Accord does not address this issue, simply noting that the undertakings provided in its Appendix I by Annex I parties “will thereby further strengthen the emissions reductions initiated by the Kyoto Protocol” (cl.4). It is therefore inevitable that this issue will have to await fresh consideration at

4 At present, the only meetings scheduled for the AWG-LCA and the AWG-KP are in a two week session in mid-2010, with COP 16/CMP 6 scheduled to be held in Mexico City from 29th November to 10th December 2010: see http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_dv_auv.pdf .

COP 16 as it is most unlikely to be resolved through the deliberations of the AWG-KP over the next 12 months.
(3) Shared vision for long-term cooperative action
The Bali Action Plan called for “a shared vision for long-term cooperative action, including a long-term global goal for emissions reduction”. Proposals in the meeting envisaged the establishment of 2050 goals based on a limit in temperature increase (2° or 1.5° C), the stabilization of GHG concentrations (450 ppm CO2-e or 350 ppm Co2-e) and aggregate reductions in emissions (both a global goal and one for developed countries). None of these proposals were adopted, apparently due to objections by China and India in particular.
Instead, the Accord recognizes the scientific consensus based on the IPCC’s 4th Assessment report for a 2° C limit in global warming and calls for deep cuts in global emissions to achieve this goal (cl.2). However, it does not identify a global stabilization goal nor does it identify the desired level of reductions in global emissions by 2050. Thus, the meeting has failed to achieve any consensus on this important element of the Bali Action Plan and thereby leaves nations without the desirable direction required for them to set their own long-term targets.
The final clause of the Accord (cl.12) calls for a review of its implementation by 2015, including “consideration of strengthening the long-term goal referencing various matters presented by the science, including in relation to temperature rises of 1.5 degrees Celsius.” It is interesting to note the inclusion of a reference to the 1.5 degrees goal in the Accord, even if only in the context of a review from years from now.
(4) Mitigation Action – Developed Countries

The Bali Action Plan called for “measurable, reportable and verifiable nationally appropriate mitigation commitments or actions, including quantified emission limitation and reduction objectives, by all developed country Parties”. Proposals before the meeting envisaged the identification of a peaking year for developed country emissions, the setting of an aggregate interim target for emissions reductions (either for 2017 or 2020) and the making of fresh commitments by Annex I countries – either under the Kyoto Protocol or via a new instrument.

The Accord urges cooperation to ensure that emissions peak “as soon as possible”, but does not identify any aggregate interim target for emissions reductions. Thus, once again, the meeting has failed to give much-needed guidance to developed nations with respect to their overall level of ambition in relation to further commitments to emissions reductions. This leaves Annex I parties to formulate voluntary commitments for the period until 2020 by notifying the Secretariat of their targets for inclusion in Appendix 1 of the Accord (cl. 4). Any prospect of fresh, legally-binding commitments by Annex I parties has therefore been deferred to enable further discussion in the AWG’s during the next year, leading to a decision whether to amend the Kyoto Protoco at CMP 6 in Mexico City.

(5) Mitigation Action – Developing Countries
The Bali Action Plan calls for nationally appropriate mitigation actions (NAMA’s) by developing countries but makes no reference to the need for these to be legally binding. Since its adoption, considerable pressure has been exerted by developed countries on the major developing economies (including China, India and Brazil) to make firm commitments with respect to mitigation – for example, to limit emissions until 2020 to 15-30% below business as usual. This issue proved to be the most significant sticking point in relation to the conclusion of the Copenhagen Accord, and was closely linked to the related call by developed countries for such commitments to be measurable, reportable and verifiable (as called for in the Bali Action Plan).
Clause 5 of the Accord commits developing countries other than the LDC’s and small-island states to undertake NAMA’s and allows them to submit these for inclusion under Appendix II of the Accord. This may be done by notifying proposed actions to the Conference Secretariat by 31st January 2010, or subsequently through a two-yearly reporting cycle. However, there is no provision in the Accord for any form of aggregate or individual mitigation target for non-Annex I countries.
(6) Transparency re mitigation actions (”measurable, reportable and verifiable”)
The Bali Action Plan called for all mitigation commitments by both developed and developing countries to be “measurable, reportable and verifiable”. This proved to be a contentious issue for some developing countries, who resisted sternly all efforts by developed countries to impose any international obligations on them in this regard.
Clause 5 of the Accord provides that all mitigation actions undertaken by non-Annex I parties will be subject to “domestic measurement, reporting and verification” but will also be subject to “international consultations and analysis” under guidelines to be developed concerning National Communications on the implementation of NAMA’s

5. In addition, mitigation actions that have “international support” are to be recorded in a register and will be subject to international measurement, reporting and verification under guidelines to be developed by the Conference of the Parties. Thus, two types of accounting requirements will apply to developing country NAMA’s, each of which is dependent on the development of new guidelines. There will inevitably be some delay therefore in these provisions coming into operation whilst the relevant guidelines are developed.
It remains to be seen whether developing countries will elect to nominate their voluntary actions to Appendix II of the Accord, either by the January 31st 2010 deadline or subsequently. There is no language in the Accord that suggests any obligation to do so, and it is may be that some developing
5 It should be noted in this context that the COP adopted a decision on National Communications by Non-Annex I Parties: see http://unfccc.int/files/meetings/application/pdf/cop15_cge_auv.pdf

countries will decline to do so in order to avoid the proposed “international consultations and analysis” that would then be required.
(7) Finance for mitigation and assessment
In response to the Bali Action Plan calls for enhanced financial resources for mitigation and adaptation, the Copenhagen Accord expresses a collective commitment by developed countries in clause 8 to provide new and additional resources approaching US$30 million over the period 2010-2012. In addition, it commits developing countries to jointly mobilizing US$100 billion per year by 2020 for mitigation action “in the context of meaningful mitigation actions and transparency on implementation”. Also, new long-term funding for adaptation is to come from “effective and efficient fund arrangements with a governance structure providing for equal representation for developed and developing countries”.

The Accord calls for the establishment of a Copenhagen Green Climate Fund and identifies this Fund as a significant source of long-term adaptation funds; it will also be available to support mitigation, technology transfer and capacity-building. The Fund is to operate under the financial mechanism established under the Convention. In addition, a High Level Panel is to be established under the COP to study potential sources of revenue related to the above goals. Given the failure of the COP/CMP to actually adopt the Accord, and hence authorize these particular decisions within the Accord, it may be necessary to wait another 12 months for appropriate decisions to be taken formally in Mexico City to give effect to these particular proposals.
Japan and the European Union have each made significant commitments recently that will provide over two-thirds of the proposed “short-term” funds, with the USA also committing US$3.6 billion for this period. The longer term commitment is clearly conditional on transparency re the relevant mitigation actions, which presumably will be sought through the proposed registry of “supported” NAMA’s and associated guidelines described above.

Despite some assertions from developing countries that these proposals are still seriously inadequate, they represent an important break-through on the difficult issue of finance. Whether, and how, the relevant funds will be assembled, and whether they will in fact be new and additional to existing sources, are all matters that remain to be seen.
(8) Other matters
The Agenda for COP15/CMP5 contained many other matters of considerable importance – for example, in relation to adaptation; LULUCF (land use, land use change and forestry); REDD (reducing emissions from deforestation and forest degradation); the CDM (Clean Development Mechanism) and the other Flexible Instruments under the Kyoto Protocol; the treatment of emissions from bunker fuels used in aviation and shipping; further development of the carbon market; technology transfer and capacity-building; and the promotion of sectoral approaches to mitigation. Some of these matters were able to be addressed to varying degrees through decisions of the COP and CMP and the full effect of these decisions will have to await analysis of the text subsequently. An initial survey of these decisions suggests that the only developments of some note have been in relation to REDD (under the COP) and the CDM and Joint Implementation mechanisms (under the CMP), but that even these decisions are largely of an agenda-setting nature for further work and do not address any of the major issues requiring resolution through the development of new rules (particularly re REDD and the CDM). The reality is that, with only a few exceptions, most of the draft decisions under consideration in the AWG-KP and AWG-LCA on these matters were heavily bracketed or subject to different options and were not ready to be transmitted to the plenary sessions for consideration. This means that there is a very heavy workload over the next 12 months for the two Working Groups under their extended mandates.

The Copenhagen Accord also has dealt with some of these matters, but mostly in a quite general manner, given they were subsidiary in relevance and importance to those which have been analyzed above. The Accord contains a clause on adaptation (cl.3) which commits developed countries to providing adequate, predictable and sustainable resources to developing countries, with a particular focus on LDC’s, small-island developing states and Africa. The financial proposals give some further weight to this commitment. There is also an agreement to introduce new mechanisms, including REDD-plus, to address the problem of deforestation (cl. 6) and an endorsement of markets as a mechanism to enhance the cost-effectiveness of, and promote, mitigation (cl.7). However, the necessary guidance on these matters must await further decisions of the COP. In relation to technology transfer, the Accord provides for the establishment of a Technology Mechanism to accelerate technology development and transfer (cl.12). How this Mechanism will operate in practice once again remains to be seen.

This inability of the Copenhagen meeting to fully and adequately address all of the above matters represents a significant set-back for the improvement of the current international climate change legal system, in particular in the related areas of LULUCF, REDD and the CDM. It was hoped that there would be substantial advancement of the often complex measures that need to be developed in relation to these topics, so the failure to achieve this is a significant set-back.

CONCLUSIONS

As noted at the outset of this assessment of the Copenhagen outcomes, any judgment as to their adequacy will be conditioned by the expectations and perspectives of those involved in such an exercise. Given the emerging scientific evidence that urgent and quite radical action is required to avoid dangerous climate change, it is difficult to take much comfort from the results of the Copenhagen meeting. There are some small advances towards new and binding mitigation targets for both developed countries and those with major developing economies, some new commitments and proposals with respect to finance, and some new expectations with respect to transparency. These are all to be welcomed, but the fact that the Accord does not even have the status of having been adopted through a decision of the Parties means that they have absolutely no legal status. Some other elements

6 See the list of key decisions presented in Appendix 1.

of the Accord, such as the proposals for guidelines on transparency and to establish the financial and technology transfer institutional arrangements, will depend on further decisions of the COP and therefore are not able to become “immediately operational” in the manner provided for in the preamble to the draft Accord due to the decision of the COP simply to “note” the Accord.
In almost every other respect there has been a failure to achieve consensus in Copenhagen. Core issues such as the future of the Kyoto Protocol, the long-term goal for emissions reduction, and the aggregate and individual goals for emissions reductions by 2020 have not been resolved and an entire additional layer of issues, including LULUCF, REDD, the CDM and bunker fuels have not been able to be fully addressed either.
All of this means that there is now a further, long and arduous road to be travelled over the next 12 months, both for negotiators and those who are engaged in urging effective international action on climate change. Negotiation fatigue is a real danger, as is the risk of a decline in community concern and interest in the issue of climate change. Those countries, such as the USA and Australia, that are seeking to develop new national measures based on a “cap and trade” approach, will face additional opposition from those who will portray Copenhagen as a failure. On the other hand, the widespread disillusionment and disaffection with the international negotiation process felt by many activists, as evidenced vividly in demonstrations during the Copenhagen meeting, might translate into even stronger community pressure on politicians to come up with measures, both nationally and internationally, that will help to avert dangerous climate change. In short, we appear to be destined for much more of the same divisive and intense debate for at least another year in light of the relatively weak outcomes from Copenhagen.
Copenhagen, 20th December 2009.

APPENDIX I: COPENHAGEN DECISIONS AND DOCUMENTS
Note: all decisions of COP 15 and CMP 5 are available on the UNFCCC web-site at: http://unfccc.int/2860.php . The following is a listing and brief description of the most significant decisions taken in Copenhagen, including with respect to the “Copenhagen Accord”.

Key Decisions of COP 15:
1. To “note” the Copenhagen Accord (as appended to this decision): http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf
2. To extend mandate of AWG-LCA: http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_lca_auv.pdf
3. Re REDD (promoting further guidance and guidelines on the estimation of sources and sinks): http://unfccc.int/files/na/application/pdf/cop15_ddc_auv.pdf
4. Re National Communications by Non-Annex I Parties (extends mandate of Consultative Group of Experts for another 2 years): http://unfccc.int/files/meetings/application/pdf/cop15_cge_auv.pdf
5. Re capacity-building (Subsidiary Body on Implementation to continue its work): http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cb_auv.pdf

Key Decisions of CMP 5:
1. To extend mandate of AWG-KP: http://unfccc.int/files/meetings/cop_15/application/pdf/cmp5_awg_auv.pdf
2. Re Clean Development Mechanism (no new rules but extended work program for Executive Board of CDM re improving transparency, efficiency and impartiality; development of baseline and measuring methodologies for under-represented activities and regions; further work on guidance re additionality; and also mentions but does not adopt CCS) http://unfccc.int/files/meetings/cop_15/application/pdf/cmp5_cdm_auv.pdf
3. Re Joint Implementation (Article 6) (adopts revised rules of procedure; urges further work by JI Supervisory C’ee on accrediting independent entities, enhancing verification procedures and considering concepts of materiality and level of assurance within the guidelines): http://unfccc.int/files/meetings/cop_15/application/pdf/cmp5_ji_auv.pdf
4. Re Capacity-building under KP (SBI to continue its work): http://unfccc.int/files/meetings/cop_15/application/pdf/cmp5_cb_auv.pdf

Major papers are reporting that a final deal has been reached in Copenhagen: the “Copenhagen Accord”

http://www.nytimes.com/2009/12/19/science/earth/19climate.html?hp

http://www.washingtonpost.com/wp-dyn/content/article/2009/12/18/AR2009121800637.html?hpid=topnews

The Post has a link to a copy of the deal, but I’m not sure if this is the final final, or just close-to-final.  My reaction on a quick read-through is that this is a fig leaf that papers over most of the major conflicts.  Most of what is in this deal was already agreed to before Copenhagen.  There is a commitment to an aggregate reduction in global GHG emissions of 50% below 1990 levels by 2050, but still no firm numbers for 2020.  There is some important new language on monitoring and verification in Par. 5, and the agreement sets a new benchmark for financing: $100 billion + will now become the standard debated in future negotiations.

News outlets are reporting that an earlier draft from this morning set a deadline to complete a binding treaty by the next Conference of the Parties in Mexico City (scheduled for Dec. 2010).  This Accord has no firm deadline to conclude a treaty, but merely calls for “review of this Accord and its implementation” by 2016.  That’s a long way away.  If there is pressure to conclude a treaty, it won’t come from this document, but rather from domestic politics.

All in all, a very depressing document for a conference that carried such high expectations.

Noah

_______________________________________________

Noah Sachs

Associate Professor

Director, Merhige Center for Environmental Studies University of Richmond School of Law Richmond VA, 23173

804-289-8555

http://law.richmond.edu/faculty/nsachs.php

An E&E Publishing Service

CLIMATE: Courts may beat Congress, U.N. to punch on GHGs  (Thursday, December 17, 2009)

Jennifer Koons, E&E reporter

A definitive step toward providing legal remedies for the effects of climate change could occur before either an international treaty or legislative accord can be reached, according to attorneys tracking the issue in the courts.

“My prediction is that there will be more judicial action before there’s enacted federal legislation or international agreement. That’s a fair bet,” said James May, a law professor at Widener University in Delaware. “In the absence of federal legislation and an international accord, these cases are the leading beacons for remedying the effects of climate change.”

In September, a federal appeals court in New York issued a historic ruling regarding citizen and government enforcement of greenhouse gas emissions. Less than a month later, decisions in two similar cases came down. All three are awaiting appeal.

“These cases are an important part of the overall climate change landscape,” said Bruce Myers, a senior attorney with the Environmental Law Institute. “One obvious reason is that they have managed to prop open the door for new lawsuits against any company or other entity that is a significant greenhouse gas emitter, creating the possibility of large damages awards or injunctive relief that alters how defendants like energy companies do their business.”

Myers added, “The climate tort lawsuits are much more than just prods for regulatory or legislative action. It is important to remember that a new EPA regulation or federal cap-and-trade law, whatever its content, will probably have to run a gauntlet of legal challenges before it can be successfully implemented. In the meantime, these pending cases are compelling federal decision-makers — in this instance, judges — to consider the harms from climate change right now.”

In Connecticut v. AEP, the 2nd U.S. Circuit Court of Appeals panel sided on Sept. 21 with a coalition of eight states, New York City and environmental groups that had filed a public nuisance lawsuit against the nation’s largest coal-burning utilities.

Then in October, a three-judge panel on the 5th U.S. Circuit Court of Appeals in New Orleans cited the 2nd Circuit ruling in Comer v. Murphy Oil Co., which held that 14 individuals who filed a class-action lawsuit against insurance, oil, coal and chemical companies could seek relief for property damages resulting from Hurricane Katrina.

A judge on the U.S. District Court for the Northern District of California, however, dismissed a public nuisance lawsuit brought by the Alaskan coastal town of Kivalina against 24 energy and utility firms.

The ruling made public in Native Village of Kivalina v. Exxon Mobil Corp. explicitly broke from the 2nd Circuit’s take on whether companies could be held liable for greenhouse gas emissions that contribute to global warming.

“What the courts in Connecticut and Comer said is you can’t just wish these cases away because they’re controversial or raise political questions,” said Robert Percival, director of the Environmental Law Program at the University of Maryland. “They do raise what has for centuries been a traditional common law nuisance claim. It’s just really difficult to prove the damages they want in Comer and Kivalina.

The tribe filed its notice of appeal to the 9th U.S. Circuit Court of Appeals on Nov. 5. The utility defendants in Connecticut filed a still-pending petition for rehearing in the 2nd Circuit on the same day, and the energy companies in Comer filed still-pending petitions for rehearing on Nov. 30, 2009.

Awaiting appeal

While the 9th Circuit will likely schedule oral arguments in the Kivalina appeal in early 2010, it remains to be seen when the 2nd and 5th Circuits will rule on the en banc appeals.

“Developments in the Comer case are interesting because on Dec. 2, the 5th Circuit requested the Mississippi Katrina victims to respond to the energy companies’ rehearing requests,” said Howard Shapiro of Van Ness Feldman. “That does not mean that the court will grant the rehearing and reconsider the case, but it signals at least that a majority of the 5th Circuit’s sitting judges believe that some serious issues have been raised.”

Said Widener University’s May: “The appeals courts are waiting to see what happens in Copenhagen, not as a legal matter but as a psychological matter that will influence just how much interest they give those cases. Without an accord and without a cap-and-trade bill, it’s more likely that the court will grant en banc review.”

Of course, once the full court decides to review the case, a decision may not come down for months — or even years.

“The courts will have no problem weighing in on the legal questions, deciding whether there is a political question or whether litigants have standing,” May said. “On the other hand, we waited more than two years for the 2nd Circuit to render its opinion in Connecticut.”

As for the 9th Circuit, legal watchers expect a reversal.

“Every circuit court thus far that has considered the question has reversed the district court’s holding that dismissed on political question grounds,” May said. “This includes circuit court judges most of whom were appointed by Republican presidents.”

“I’d say there will be a reversal,” May said. “But it’s important to remember that the Supreme Court has a penchant for itself reversing controversial decisions out of the 9th and 2nd Circuits.”

Supreme uncertainty

Legal experts remain divided on if — and when — the Supreme Court will decide to weigh in on the issue.

“If there’s a circuit split, you’d have a much greater chance of Supreme Court review,” said Michael Romey, a partner in the Los Angeles office of Latham & Watkins.

The very nature of the case makes review highly probable, May said.

“The court only hears about 80 cases a year, and just two years ago in Massachusetts v. EPA, it declined to engage the political question doctrine as applied to climate change,” May said. “On the other hand, the amalgam of standing, political question, congressional authority, federalism, international policy, big business and ‘the defining issue of our day,’ coupled with the courts’ recent penchant for reversing controversial circuit court decisions in environmental cases, imputes upon these cases an almost irresistible quality for review.”

“The court has recently gone to almost unprecedented lengths to reach down and reverse environmental cases even when there wasn’t a split in circuits and the Bush administration wasn’t seeking review,” he added.

As happened to environmental cases during the last term, a decision on climate change would likely reach a divided outcome (Greenwire, June 25).

“These controversial environmental cases tend to be resolved in 5-4 decisions with [Justice Anthony] Kennedy as the swing vote,” May said. “My best guess is that the court will issue a 5-4 ruling in favor of judicial restraint, either finding the political question doctrine or standing doctrine applies so as to avoid reaching the merits.”

Climate victims fight back

Small island state challenges future of Czech coal plant

Prague 15 December 2009 – The Czech Ministry of Environment publicly confirmed today that it has received a request from the Federated States of Micronesia for a transboundary Environmental Impact Assessment (EIA) of its biggest coal-fired power plant, Prunerov (1). This is the first time that current or future climate victims could legally influence a foreign industry by arguing that it endangers them due to greenhouse gas emissions.

The Micronesian islands, in the Pacific, are on the front line of climate impacts especially sea-level rise, changing weather patterns, and increased storms. Prunerov is one of Europe’s biggest coal power plants. (1) The plant’s operator, CEZ, wants to increase the generating capacity of Prunerov but refuses to build new blocks in compliance with efficiency standards according to EU guidelines.(2)

“As ministers and heads of state arrive in Copenhagen to try and agree a climate saving deal this week, small island states are starting to take matters into their own hands in a bid for survival. If successful, this legal challenge could have serious implications for climate changing industries worldwide.

“Climate change is a global problem and communities whose lives are impacted by emissions from foreign industries have the right to push for a global solution. We support Micronesia’s request and demand a phase out of dirty coal plants in the Czech Republic and around the world,” said Jan Rovensky, climate and energy campaigner, Greenpeace Czech Republic.

[GPCZ1]

Greenpeace has calculated that Prunerov’s carbon dioxide emissions are currently responsible for up to 45 deaths and 48 000 negatively affected people every year. The retrofit will prolong carbon dioxide emissions from the plant by another 25 years. (4)

CEZ have violated legal regulations and ignored concerns raised by communities living near the plant and the Ministry of Environment. It plans to use out-dated technology to modify Prunerov so it can be operated for 25 more years. Greenpeace is demanding that CEZ decommissions Prunerov by 2016.

“By demanding a transboundary EIA, the Government of Micronesia hopes to determine what impact the increase of emissions from the extended operation of the plant will have on the climate and on small Pacific Island States.

It is important to give communities which are immediately vulnerable to climate change the chance to take legal action to protect themselves against climate polluters wherever they are. However, only a fair, ambitious and legally binding global treaty in Copenhagen this week will provide the level of protection needed to secure a future for billions of people around the world, including Micronesians.

“This week’s deal must be legally binding and include commitments by rich countries to make far deeper emissions cuts – nothing short of 40% by 2020.

It must also include USD 140 billion a year so that states like Micronesia can adapt to climate change and invest in clean technologies. All the elements of a good climate deal are on the table, the only one missing is political will,” concluded Jan Pinos, campaign director of Greenpeace Czech Republic.

Notes for editors:

(1) International assessment of the project is complicated by the fact that CEZ has consistently refused to include climate impacts in the EIA documentation, although this required by Czech law. There is not a single word about climate in the 250 pages of EIA documentation submitted by the utility (while the marginal impact to local protected areas is covered by nine pages). CEZ consequently state that the climate impacts of the Czech Republic’s largest power plant are “totally marginal and improvable”.

(2) Prunerov is the 18th largest single source of CO2 emissions in Europe (data from 2007). Total annual emissions from Prunerov consist of 10 million tons of carbon dioxide. It is 40 times more than the annual emissions of the entire Micronesian Federation, and 10% more than the iconic British power plant, Kingsnorth.

Czech Republic’s total CO2 emissions (2007): 129.949 million tons Prunerov power plant total emissions (2007): 10.103 million tons Federated States of Micronesia total CO2 emissions (1994): 0.23 million tons

(3) The current net thermal efficiency of Prunerov is 32 %. CEZ wants to replace the current power plant with new one with planned net thermal efficiency off 38 %. This plan is in substantial conflict with European and Czech law, which requests net efficiency of new power plants of at least 42 % (which still means that 58 % of energy content of the fuel is wasted through the cooling towers).

(4) The range of the current victims of Prunerov is calculated to be in the interval of 24 to 45 deaths and 26 174 to 48 684 people affected by climate change a year. This calculation is based on figures of current climate change victims (World Humanitarian Forum: The Anatomy of a Silent Crisis, 2009), CEZ’s figures on Prunerov’s share current global GHG emissions (161 ppm) and an estimation of the proportion of anthropogenic GHG emissions currently causing climate change.

Most of the consequent deaths are caused by increases of vector diseases due to rising temperatures, a smaller number are direct victims of floods, droughts and other extreme weather events.

Contacts:

Jan Rovenský, climate and energy campaigner of Greenpeace Czech Republic

tel: +420 723 623 238, e-mail:

Lenka Boráková, spokeswoman of Greenpeace Czech Republic

tel: +420 603 443 140, e-mail:

Ben Jasper, international projects co-ordinator of Greenpeace Czech Republic (now available in Copenhagen)

tel.: +420 722 459 794, e-mail:

Micronesian office which made the request

OFFICE OF ENVIRONMENT & EMERGENCY MANAGEMENT PO BOX PS-69 Palikir, Pohnpei FSM 96941

Phone: (691) 320-8815/8814, Fax: (691) 320-8936

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Peter Roderick

101, Weavers Way,

UK – London, NW1 0XG

Tel: + 44 20 7388 3141

As heads of state arrive in Copenhagen, the two main ad-hoc negotiating sessions (one on the future of the Kyoto Protocol, the other on “long-term cooperative action”) worked late Tuesday night to finish their work. The delegates are looking exhausted today.

The report of the long-term cooperation action group, which was formed to negotiate a comprehensive long-term treaty text that could attract the participation of the United States, is now available online.  There was a scramble until early Wed morning to eliminate as many of the brackets as possible in this document (representing areas of disagreement), but it wasn’t possible.  The document in fact looks very similar to a draft that was issued last Friday.  Not much progress has been made, and the real work (including putting emissions reductions numbers and finance commitments in the crucial appendices) remains for the high-level delegations in the next 48 hours.   At 6:30 this morning, the negotiators in the LCA working group agreed to forward this entire package to the Conference of the Parties as “unfinished business.”

Noah

_______________________________________________

Noah Sachs

Associate Professor

Director, Merhige Center for Environmental Studies University of Richmond School of Law Richmond VA, 23173

804-289-8555

http://law.richmond.edu/faculty/nsachs.php