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United States Joins Consensus on Paris Climate Agreement

Published online by Cambridge University Press:  29 March 2017

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Contemporary Practice of the United States Relating to International Law
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American Journal of International Law , Volume 110 , Issue 2 , April 2016 , pp. 374 - 384
Copyright
Copyright © American Society of International Law 2016

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References

1 Paris Agreement, in United Nations Framework Convention on Climate Change [UNFCCC], Conference of the Parties, Rep. on its Twenty-First Sess. [hereinafter COP Report No. 21], Annex, Art. 2, UN Doc. FCCC/CP/2015/L.9/Rev.1 (Dec. 12, 2015) (advance version) [hereinafter Paris Agreement].

2 Id. Arts. 4, 13.

3 U.S. Dep’t of State Press Release, John Kerry, U.S. Secretary of State, Press Availability, (Dec. 12, 2015), at http://www.state.gov/secretary/remarks/2015/12/250590.htm.

4 United Nations Press Release, Paris Climate Change Agreement “A Triumph for People, Planet” Secretary-General Tells General Assembly (Dec. 15, 2015), at http://www.un.org/press/en/2015/sgsm17417.doc.htm.

5 United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102-38 (1992), 1771 UNTS 107 [hereinafter the UNFCCC]. The Convention does not impose legally binding limits on parties’ emissions, but establishes the ultimate objective of achieving “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” Id. Art. 2. For a more detailed account of the developments leading to the Paris Agreement, see Bodansky, Daniel, The Paris Climate Change Agreement: A New Hope?, 110 AJIL 288 (2016)CrossRefGoogle Scholar.

6 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 2303 UNTS 162) [hereinafter Kyoto Protocol].

7 E.g., Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 109 AJIL 195, 197 (2015)Google Scholar; Murphy, Sean D., Contemporary Practice of the United States, 95 AJIL 647 (2001)Google Scholar.

8 Daugirdas & Mortenson, supra note 7, at 197.

9 In this joint announcement, President Barack Obama announced a new target to cut net greenhouse gas emissions 26–28% below 2005 levels by 2025, and Chinese President Xi Jinping announced targets to peak CO2; emissions around 2030 and to increase the non-fossil fuel share of all energy to around 20% by 2030. The White House Press Release, U.S.-China Joint Announcement on Climate Change (Nov. 11, 2014), at http://www.whitehouse-.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change; see also UN Press Release, Commending Joint Announcement by China, United States for Post-2020 Action on Climate Change, Secretary-General Urges All Countries to Follow Lead (Nov. 11, 2014), at http://www.un.org/press/en/2014/sgsm16333.doc.htm (statement by UN Secretary-General Ban Ki-moon that with the joint announcement by China and the United States and other international commitments, “a strong foundation has been laid and momentum is building towards a meaningful climate agreement in 2015”).

10 UNFCCC Press Release, Lima Call for Climate Action Puts World on Track to Paris 2015 (Dec. 14, 2014), at http://newsroom.unfccc.int/lima/lima-call-for-climate-action-puts-world-on-track-to-paris-2015/.

11 As of December 15, 2015, 160 INDCs had been submitted, reflecting 187 countries (including the European Union member states). Comparison of INDCs, Ctr. for Climate & Energy Solutions, at http://www.c2es.org/indc-comparison (last updated Dec. 21, 2015); INDCs as Communicated by Parties, UNFCCC, http://www4.unfccc.int/submissions/INDC/Submission%20Pages/submissions.aspx (last visited Mar. 1, 2016).

12 See Live at State with Special Envoy for Climate Change Todd Stern on COP21 in Paris, U.S. Dep’t of State (Nov. 24, 2015), at http://www.state.gov/r/pa/ime/249970.htm [hereinafter Todd Stern] (“Nobody would go through the blood, sweat, and tears that it takes to put together one of these targets if they didn’t think the agreement was going to happen and if they weren’t fundamentally bought in to an agreement happening.”).

13 See id. (stating that “[t]he thing that would not belegally binding . . .is the targets themselves”); Fiona Harvey, Paris Climate Change Agreement: The World’s Greatest Diplomatic Success, The Guardian (Dec. 14, 2015), at http://www.theguardian.com/environment/2015/dec/13/paris-climate-deal-cop-diplomacy-developing-united-nations; see also infra note 71 and accompanying text.

14 See Daugirdas & Mortenson, supra note 7, at 197; Todd Stern, supra note 12 (“[W]e need to move this agreement from the old-style, backward-looking bifurcation between two distinct categories into a world which is for ward-looking, where there is differentiation across the range of countries.”).

15 See, e.g., Zhang Chun, What is China’s Position at Paris Climate Talks?, China Dialogue (Nov. 30, 2015), at https://www.chinadialogue.net/article/show/single/en/8356-What-is-China-s-position-at-Paris-climate-talks-(interview with Chinese climate envoy Xie Zhenhua).

16 See Todd Stern, supra note 12 (explaining the monitoring, reporting, and verification procedures endorsed by the United States).

17 See Buckley, Chris, China Burns Much More Coal Than Reported, Complicating Climate Talks, N.Y. Times, Nov. 3, 2015, at A1 Google Scholar.

18 Davenport, Coral, Trust and Moneyat Core of Crucial Paris Talks on Climate Change, N.Y. Times, Dec.6,2015, at A7 Google Scholar.

19 Copenhagen Accord, (Dec. 18, 2009), in UNFCCC, Conference of the Parties, Rep. on its Fifteenth Sess., Addendum, at 5, UN Doc. FCCC/CP/2009/11/Add.1 (Mar. 30, 2010).

20 Synthesis Report on the Aggregate Effect of the Intended Nationally Determined Contributions, in COP Report No. 21, UN Doc. FCCC/CP/2015/7, para.8, 204 (Oct. 30, 2015)(finding that aggregate emissions resulting from implementation of INDCs communicated by October 1, 2015 “do not fall within the range of least-cost 2° Cscenarios”); see also Climate Scoreboard, Climate Interactive, at https://www.climateinteractive.org/tools/scoreboard/(last visited Mar. 1, 2016) (estimating a global temperature increase of 3.5 degrees Celsius above pre-industrial levels if all INDCs communicated before the conclusion Of the Paris Agreement are implemented without further action).

21 Robinson Meyer, A Reader’s Guide to the Paris Agreement, Atlantic(Dec. 16, 2015), at http://www.theatlan-tic.com/science/archive/2015/12/a-readers-guide-to-the-paris-agreement/420345/; John Vidal & Fiona Harvey, Paris Climate Talks: Vulnerable Countries Demand 1.5C Warming Limit, Guardian (Nov. 30, 2015), at http://www.theguardian.com/global-development/2015/nov/30/paris-climate-talks-vulnerable-countries-demand-15c-warming-limit.

22 See, e.g., Suzanne Goldenberg, Saudi Arabia Accused of Trying to Wreck Paris Climate Deal, Guardian (Dec. 8, 2015), at http://www.theguardian.com/environment/2015/dec/08/saudi-arabia-accused-of-trying-to-wreck-the-paris-climate-deal.

23 Meyer, supra note 21.

24 “Lack of Trust” on Climate Finance, Figueres Warns Before Paris Negotiations, Bloomberg News ( July 1, 2015), at http://www.bna.com/lack-trust-climate-n17179928952/(interview with Christina Figueres at the UN High Level Event on Climate Change in July 2015).

25 Id.

26 See Ed King, Life or Death: G77 Demands Climate Finance Guarantee, Climate Home (Oct. 22, 2015), at http://www.climatechangenews.com/2015/10/22/life-or-death-g77-demands-climate-finance-guarantee/.

27 Decision 2/CP.19 (Nov. 11–23, 2015), in COP Report No. 19, UN Doc. FCCC/CP/2013/10/Add.1 (Jan. 31, 2014).

28 See Chris Mooney, The Key, Tricky Details That Will Determine Whether the Paris Climate Meeting Succeeds, Wash. Post (Dec. 1, 2015), at https://www.washingtonpost.com/news/energy-environment/wp/2015/12/01/these-are-the-key-tricky-details-that-will-determine-whether-the-paris-climate-meeting-succeeds/.

29 U.S. Dep’t of State Press Release, COP21 Press Availability with Special Envoy Todd Stern (Dec. 2, 2015), at http://go.usa.gov/cBmFd (“We’ve also made it clear that we are not at all supportive of and would not accept the notion of liability and compensation being part of that.”).

30 For a more detailed analysis of these provisions, see Bodansky, supra note 5.

31 Decision 1/CP.21 (Nov. 30–Dec. 11, 2015), in COP Report No. 21, UN Doc. FCCC/CP/2015/L.9/Rev.1 (Dec. 12, 2015) [hereinafter Paris Decision].

32 The Paris Decision provides that INDCs communicated before joining the Paris Agreement will be treated as NDCs for purposes of the Paris Agreement unless the party submitting the INDC decides otherwise. Id., para. 22.

33 Paris Agreement, supra note 1, Art. 3.

34 Id. Art. 2(1)(a).

35 Id. Art. 4.

36 Although the Agreement does use the terms “developed country” and “developing country” to establish different obligations for parties based on their differing levels of development, it does not define either phrase or classify countries accordingly, like in the Kyoto Protocol. Compare Paris Agreement, supra note 1, with Kyoto Protocol, supra note 6.

37 Paris Agreement, supra note 1, Art. 4(12).

38 See, e.g., Jessica F. Green, Wondering What’s Different About the Paris Climate Change Negotiations? Here’s What You Need to Know, Wash. Post (Dec. 1, 2015), at https://www.washingtonpost.com/news/monkey-cage/wp/2015/12/01/wondering-whats-different-about-the-paris-climate-change-negotiations-heres-what-you-need-to-know/.

39 Paris Agreement, supra note 1, Art. 13(7).

40 Id. Art. 13(3).

41 Id. Art. 15(1).

42 Id. Art. 15(2).

43 Id. Art. 4(9).

44 Id. Art. 14(1).

45 Id. Art. 14(2).

46 Id. Art. 4(1).

47 Compare id. Art. 6(4), with Kyoto Protocol, supra note 6, Art. 12.

48 Paris Agreement, supra note 1, Art. 6(2).

49 See Press Release, supra note 3 (noting that “having binding agreements with respect to . . . finance” would “trigger[] a different kind of agreement”); Nitin Sethi, US Threatens to Walk Out of Paris Pact Over Financial Obligations, Bus. Standard(India) (Dec. 11, 2015), at http://www.business-standard.com/article/current-affairs/us-threatens-to-walk-out-of-paris-pact-over-financial-obligations-115121100913_1.html (quoting Kerry as saying that “legally binding with respect to finance is a killer for the agreement” and describing this statement as a “veiled threat that the agreement could fail if the US was pushed for financial obligations”).

50 Paris Agreement, supra note 1, Art. 9(1).

51 Id. Art. 9(2).

52 Id. Art. 9(3).

53 Id. Arts. 9(3)–9(5).

54 U.S. Dep’t of State Press Release, Joint Statement on Donors’ Pledge of $248M USD to Least Developed Countries Fund to Support Climate Change Adaptation (Nov. 30, 2015), at http://go.usa.gov/cKVE2; U.S. Dep’t of State Press Release, U.S. Climate Risk Insurance Announcement (Dec. 1, 2015), at http://go.usa.gov/cZQ4B.

55 See The White House Press Release, U.S. Leadership and the Historic Paris Agreement to Combat Climate Change (Dec. 12, 2015), at https://www.whitehouse.gov/the-press-office/2015/12/12/us-leadership-and-histor-ic-paris-agreement-combat-climate-change.

56 Id.

57 Id.

58 The White House Press Release, Statement by the President on the Paris Climate Agreement (Dec. 12, 2015), at https://www.whitehouse.gov/the-press-office/2015/12/12/statement-president-paris-climate-agreement.

59 Paris Agreement, supra note 1, Arts. 8(1)–8(2).

60 Karoun Demirjian & Steven Mufson, Trick or Treaty? The Legal Question Hanging Over the Paris Climate Change Conference, Wash. Post (Nov. 30, 2015), at https://www.washingtonpost.com/news/powerpost/wp/2015/11/30/trick-or-treaty-the-legal-question-hanging-over-the-paris-climate-change-conference/.

61 S. Res. 329, 114th Cong. (2015); S. Con. Res. 25, 114th Cong. (2015).

62 S.J. Res. 23, 114th Cong. (2015); S.J. Res. 24, 114th Cong. (2015).

63 In a statement, Senator James M. Inhofe (R-Okla.) said: “The message could not be more clear that Republicans and Democrats in both the U.S. Senate and U.S. House do not support the president’s climate agenda, and the international community should take note.” Valerie Richardson, Republicans Move to Undermine Obama on Paris Climate Deal, Wash. Times (Dec. 7, 2015), at http://www.washingtontimes.com/news/2015/dec/7/repub-licans-move-to-undermine-obama-on-paris-clima/.

64 See Office of Mgmt. & Budget, Exec. Office of the President, Statement of Administrative Policy: S.J. Res.23–Disapproving EPA Rule on Greenhouse Gas Emissions from New, Modified, and Reconstructed Electric Utility Generating Units (Nov. 17, 2015), available at https://www.whitehouse.gov/sites/default/files/omb/legislative/sap/114/sapsjr24s_20151117.pdf; Office of Mgmt. & Budget, Exec. Office of the President, Statement of Administrative Policy: S.J. Res.23–Disapproving EPA Rule on Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units (Nov. 17, 2015), available at https://www.whitehouse.gov/sites/default/files/omb/legislative/sap/114/sapsjr23s_20151117.pdf.

65 The White House Press Release, Memorandum of Disapproval on S.J. Res.23(Dec. 19, 2015), at http://wwwhttps://www.whitehouse.gov/the-press-office/2015/12/19/memorandum-disapproval-sj-res-23; The White House Press Release, Memorandum of Disapproval on S.J. Res. 24 (Dec. 18, 2015), at https://www.whitehouse. gov/the-press-office/2015/12/19/memorandum-disapproval-sj-res-24.

66 Adoption of the Paris Agreement, Proposal of the President, Draft Decision _/CP.21, Annex, Art. 4, UN Doc. FCCC/CP/2015/L.9 (Dec. 12, 2015) (emphasis added). See Marty Lederman, The Constitutionally Critical, Last Minute Correction to the Paris Climate Change Accord, Balkanization (Dec. 13, 2015), at http://balkin.blogspot.com/2015/12/the-last-minute-correction-to-paris.html; Daniel Bodansky, Reflections on the Paris Conference, Opinio Juris (Dec. 15, 2015), at http://opiniojuris.org/2015/12/15/reflections-on-the-paris-conference.

67 One of the United States’ top priorities was eliminating binary distinctions between the obligations of developed and developing states. See Bodansky, supra note 5.

68 Nitin Sethi, How the Pact Was Won with a “Typo” Tweak, Business Standard (Dec. 14, 2015), at http://www.business-standard.com/article/current-affairs/when-a-typo-saved-the-climate-change-summit-from-the-brink-of-collapse-115121300690_1.html.

69 U.S. Dep’t of State Press Release, Press Availability, John Kerry, Secretary of State (Dec. 12, 2015), at http://www.state.gov/secretary/remarks/2015/12/250590.htm.

70 U.S. Dep’t of State Press Release, Background Briefing on the Paris Climate Agreement (Dec. 12, 2015), at http://www.state.gov/r/pa/prs/ps/2015/12/250592.htm.

71 Id.

72 Id.

73 Paris Agreement, supra note 1, Art. 20.

74 Id. Art. 21.

75 The White House Press Release, Office of the Press Secretary, U.S.-China Joint Presidential Statement on Climate Change (Mar. 31, 2016), at https://www.whitehouse.gov/the-press-office/2016/03/31/us-china-joint-pres-idential-statement-climate-change.

76 U.S. Dep’t of State Press Release, Senior State Department Official on the Paris Agreement Signing Ceremony (Apr. 20, 2016), at http://www.state.gov/r/pa/prs/ps/2016/04/256415.htm.

77 Paris Agreement, Status of Ratification, Un Framework Convention on Climate Change, at http://unfccc.int/paris_agreement/items/9444.php (last visited May 9, 2016).

78 Id.

79 UN Press Release, No Time to Delay Implementation of Paris Climate Agreement, Secretary-General Says at Briefing to Member States on Upcoming Signing Ceremony(Feb. 16, 2015), at http://www.un.org/press/en/2016/sgsm17547.doc.htm.

80 The White House Press Release, Statement by the President on the Paris Climate Agreement (Dec. 12, 2015), at https://www.whitehouse.gov/the-press-office/2015/12/12/statement-president-paris-climate-agreement.

81 Basin Electric Power Cooperative v. U.S. Environmental Protection Agency, No. 15A776, stay granted, 2016 WL 502654 (U.S. Feb. 10, 2016).

82 Janet McCabe, The Final Clean Power Plan: More Ambitious, More Achievable for States, EPA Connect (Aug. 3, 2015), at https://blog.epa.gov/blog/2015/08/the-final-clean-power-plan-more-ambitious-more-achievable-for-states/.

83 The White House Press Release, Press Secretary Josh Earnest on the Supreme Court’s Decision to Stay the Clean Power Plan (Feb. 9, 2016), at https://www.whitehouse.gov/the-press-office/2016/02/09/press-secretary-josh-earnest-supreme-courts-decision-stay-clean-power.