Chapter 9 Bis the Copenhagen Accord

Chapter 9 bis The Copenhagen Accord

V. The Road to Copenhagen

After Bali, the Parties met in Accra, Bonn, Poznan, Bonn again, Bangkok, and Barcelona to negotiate actions to implement the Bali Action Plan. Despite the number of meetings, the Parties made little progress. Rather than clarify negotiating texts, each meeting seemed to raise additional questions, and with those questions additional brackets were added to the already muddled text. Developing countries insisted that developed countries “take the lead” by adopting further targets and timetables under the Kyoto Protocol. They further insisted that any nationally appropriate mitigation actions (NAMAs) for developing countries must be nonbinding. Developing countries also demanded billions of dollars for adaptation and implementation of NAMAs.

Not surprisingly, these positions ran counter to those of many developed countries, such as Australia, Canada, and the United States, that wanted developing countries to adopt binding commitments. Economic concerns lay behind this demand. Without binding commitments to reduce emissions of carbon dioxide and other greenhouse gases, developing country industries could produce goods less expensively than similar goods made in developed countries, which would carry the costs of greenhouse gas mitigation. Political considerations also demanded some movement from developing countries. Recently failed climate change legislation in Australia and stalled climate change legislation in the United States narrowed the negotiating options for those two countries. Many in the U.S. Senate believe the costs of climate change mitigation are too high, particularly if our main trade competitors (i.e. China and India) are not subject to emissions caps. This limited U.S. negotiators, who knew that they would need Senate consent to ratify any new international treaty emerging from what were to be the final negotiations in Copenhagen— technically the Fifteenth Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP15) and the Fifth Session of the Meeting of the Parties to the Kyoto Protocol (CMP5).

Two months before the Copenhagen meeting, countries sent mixed signals about what they thought the meeting could achieve. In October and November 2009, Brazil, China, India, Indonesia, and South Korea announced that they would agree to take steps to mitigate climate change, providing a glimmer of hope that the meeting could produce a positive outcome. These raised expectations quickly fell, however, when the United States, Singapore, Mexico, Australia, and the other countries participating in the Asia Pacific Economic Cooperation summit in November announced that the Copenhagen meeting would likely end with a “political” deal rather than a legally binding treaty. The roller coaster ride of expectations was not over. When President Obama and Premier Wen Jiabao of China announced that they would attend the negotiations, they gave hope that a meaningful compromise had already been reached between these countries.

By the time the Parties convened in Copenhagen, neither expectations nor text had been clarified, but many observers still believed major progress could be made. From the beginning,

however, the Copenhagen meeting itself was marked, in the words of one observer, by “bitter divisions, confusion, and setbacks.” The first setback came on the second day of the meeting when Tuvalu demanded discussion on a single, legally binding agreement. The G77-China adamantly opposed the proposal, wanting to pursue the “two-track” approach: additional binding commitments for developed countries under the Kyoto Protocol and nonbinding actions for developing countries pursuant to Decisions of the Parties or by other means. The fissure among developing countries brought the meeting to an impasse, and the meeting was temporarily suspended when the Parties could not find consensus on a way forward. With the official meetings closed, the Parties negotiated in smaller groups, making NGO participation almost non- existent.

The question of whether the Parties would develop a one-track or two-track approach remained an issue throughout the meeting. A one-track approach would presumably carry forward the structure and flexibility mechanisms of the Kyoto Protocol, but establish more stringent targets and new timetables for Annex I Parties and perhaps carve out a new Annex for major emitting developing countries. In so doing, it would essentially fold the United States into the Kyoto Protocol and set the stage for more commitments from more countries in the future. A two-track approach, in contrast, would keep developed and developing countries separate. As noted above, China opposed the one-track option proposed by Tuvalu, fearing that it would be the first developing country in line for binding commitments. The United States also made clear that it would not sign onto what some had dubbed “Kyoto 2.” Thus, the fissure among developing countries was by no means the only negative reaction to Tuvalu’s proposal.

In the meantime, a leak of a draft “Danish Agreement,” intended as the negotiating text for a nonbinding, political outcome to the negotiations, touched off a round of recriminations against Denmark and other governments who contributed to the document. Developing countries railed against the Danish Agreement for its lack of participation and failure to embrace a legally binding outcome. In response to the Danish Agreement, the “BASIC” countries—Brazil, South Africa, India, and China—floated their proposal, which provided for amendments to the Kyoto Protocol’s targets and timetables for Annex I Parties, a separate provision characterizing any emissions reduction target by the United States as “a commitment,” and requirements for additional financing to help developing countries implement non-binding, nationally-defined mitigation actions. The Alliance of Small Island States (AOSIS) added its more ambitious proposal for a single-treaty outcome to the mix. In addition to amending the targets for Annex I Parties, the AOSIS proposal also called for “a collective reduction of overall emissions of at least 45% below 1990 levels by 2020, while actions by developing countries should in aggregate aim to achieve significant deviations from baselines by 2020.” In addition to these texts, the official negotiating groups—the Ad Hoc Working Group on Long-term Cooperative Action (AWG- LCA) with its mandate to negotiate measures for the effective and sustained implementation of the UNFCCC beyond 2012 and the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) with its mandate to negotiate new targets and timetables for developed country Parties under the Kyoto Protocol—continued to submit draft texts on a variety of issues to the Parties.

Awash in paper and confusion, the meeting sputtered and tensions rose, with one delegate actually punching another and then lifting a chair to strike again before cooler heads prevailed.

Governments faced significant political pressure to succeed on some level; certainly a deal must be reached to address climate change beyond the Kyoto Protocol’s first commitment period. Tens of thousands of observers in and around the Bella Center, the venue for the negotiations, pressed governments for aggressive action to mitigate climate change. In an attempt to stave off failure, governments sent Ministers, who ordinarily attend only the final day or two of significant meetings, early in the second week to find a way forward.

By the meeting’s end, more than 110 heads of State had attended, often participating in the minutiae of drafting text, a task usually reserved for lower-ranking officials. Still, it was a core of 20 to 25 heads of State and their staff that negotiated the Copenhagen Accord. The stakes and gamesmanship reached absurdity. Chinese Premier Wen Jiabao snubbed President Obama by not appearing for a meeting. He later sent a middle-ranking official to negotiate with a larger group of heads of State. President Obama apparently barged into a meeting of Chinese Premier Wen, Indian Prime Minister Manmohan Singh, Brazilian President Luiz Inacio Lula, and South African President Jacob Zuma, demanding that they negotiate openly (an interesting argument given the absence of about 175 Parties in the negotiations of the Copenhagen Accord).

As the negotiations among heads of State continued, the United States insisted on international verification of developing country NAMAs—a direct challenge to China, which had earlier rejected the same demand as an infringement on sovereignty. Other developing countries demanded more money for adaptation and mitigation efforts. When U.S. Secretary of State Hillary Clinton, and later President Obama, declared U.S. support for the goal of $100 billion a year for developing countries, many in the G77 saw an offer they could not refuse. China finally relented to minimal international oversight over implementation of developing country NAMAs, particularly those that are supported by international financial assistance.

Still, the end was not yet near. The United States and others wanted the Copenhagen Accord to have some status under the UNFCCC. Under the voting rules of the UNFCCC, the Parties would need to vote by consensus to adopt it. Many countries bitterly refused to adopt a document they had no hand in drafting. Tuvalu spoke first, denouncing a process in which they saw a “major world leader” announcing the agreement on a hallway video screen before they had ever received the text. Venezuela declared the agreement a “coup d’etat against the United Nations.” Sudan, the current chair of the G77-China, called the Accord a “suicide pact, an incineration pact in order to maintain the economic dominance of a few countries.” By likening the Accord’s effects on poor nations to those of the Holocaust, Sudan brought the U.K’s lead negotiator, David Miliband, back from his hotel room at 4:00 am. Racing back to the Bella Center, Miliband denounced Sudan’s analogy and implored the delegates to accept the Copenhagen Accord, flawed as it was. Whether Sudan’s comment proved too much for other governments to associate with or Miliband roused the delegates to action or the realities of leaving Copenhagen without any agreement (and without locking in the promise financial assistance) finally sank in, many developing countries did not object to the Copenhagen Accord. Yet, with Venezuela, Sudan, Bolivia, and Nicaragua still in opposition, consensus could not be reached to “adopt” the Accord. In the end, the Parties agreed to “take[] note” of the Accord, which gave it little formal standing under the UNFCCC process.

The Copenhagen negotiations thus ended with more questions than answers about the next steps forward. Unlike most international agreements, particularly climate negotiations, the Parties left without a clear workplan for future negotiations. The Copenhagen Accord explicitly calls on the UNFCCC Conference of the Parties to take critical steps toward implementation, but the Parties did not take those steps—and they are not scheduled to meet as the Conference of the Parties (CoP) again until next year’s meeting in Mexico City. Moreover, it was not clear whether (or which) negotiations would continue under the UNFCCC or Kyoto Protocol. Although much progress had been made in Copenhagen on texts relating to financial mechanisms, reduced emissions from deforestation and forest degradation (REDD), and other issues, the future of these texts appeared uncertain as the Conference ended. The Parties did agree to extend the mandates of the AWG-LCA and AWG-KP, which at least acknowledged that ongoing negotiations would be necessary, leaving the Parties and the Secretariat to identify what issues will need to be prioritized in the coming year.

As you read the Copenhagen Accord below, consider how it relates to the broader UNFCCC and Kyoto Protocol processes. What assumptions did the Parties make about how the Accord would be implemented? Look for the compromises between the United States and China. Both countries have claimed “success” in the negotiations and both have been widely criticized in international press. Has the Accord advanced the world toward an international consensus on how to address climate change?

Copenhagen Accord

The Heads of State, Heads of Government, Ministers, and other heads of the following delegations present at the United Nations Climate Change Conference 2009 in Copenhagen: [List of Parties]

In pursuit of the ultimate objective of the Convention as stated in its Article 2, Being guided by the principles and provisions of the Convention, Noting the results of work done by the two Ad hoc Working Groups, Endorsing decision x/CP.15 on the Ad hoc Working Group on Long-term Cooperative Action and decision x/CMP.5 that requests the Ad hoc Working Group on Further Commitments of Annex I Parties under the Kyoto Protocol to continue its work,

Have agreed on this Copenhagen Accord which is operational immediately.

1. We underline that climate change is one of the greatest challenges of our time. We emphasise our strong political will to urgently combat climate change in accordance with the principle of common but differentiated responsibilities and respective capabilities. To achieve the ultimate objective of the Convention to stabilize greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, we shall, recognizing the scientific view that the increase in global temperature should be below 2 degrees Celsius, on the basis of equity and in the context of sustainable development, enhance our long-term cooperative action to combat climate

change. We recognize the critical impacts of climate change and the potential impacts of response measures on countries particularly vulnerable to its adverse effects and stress the need to establish a comprehensive adaptation programme including international support.

2. We agree that deep cuts in global emissions are required according to science, and as documented by the IPCC Fourth Assessment Report with a view to reduce global emissions so as to hold the increase in global temperature below 2 degrees Celsius, and take action to meet this objective consistent with science and on the basis of equity. We should cooperate in achieving the peaking of global and national emissions as soon as possible, recognizing that the time frame for peaking will be longer in developing countries and bearing in mind that social and economic development and poverty eradication are the first and overriding priorities of developing countries and that a low-emission development strategy is indispensable to sustainable development.

3. Adaptation to the adverse effects of climate change and the potential impacts of response measures is a challenge faced by all countries. Enhanced action and international cooperation on adaptation is urgently required to ensure the implementation of the Convention by enabling and supporting the implementation of adaptation actions aimed at reducing vulnerability and building resilience in developing countries, especially in those that are particularly vulnerable, especially least developed countries, small island developing States and Africa. We agree that developed countries shall provide adequate, predictable and sustainable financial resources, technology and capacity-building to support the implementation of adaptation action in developing countries.

4. Annex I Parties commit to implement individually or jointly the quantified economy-wide emissions targets for 2020, to be submitted in the format given in Appendix I by Annex I Parties to the secretariat by 31 January 2010 for compilation in an INF document. Annex I Parties that are Party to the Kyoto Protocol will thereby further strengthen the emissions reductions initiated by the Kyoto Protocol. Delivery of reductions and financing by developed countries will be measured, reported and verified in accordance with existing and any further guidelines adopted by the Conference of the Parties, and will ensure that accounting of such targets and finance is rigorous, robust and transparent.

5. Non-Annex I Parties to the Convention will implement mitigation actions, including those to be submitted to the secretariat by non-Annex I Parties in the format given in Appendix II by 31 January 2010, for compilation in an INF document, consistent with Article 4.1 and Article 4.7 and in the context of sustainable development. Least developed countries and small island developing States may undertake actions voluntarily and on the basis of support. Mitigation actions subsequently taken and envisaged by Non-Annex I Parties, including national inventory reports, shall be communicated through national communications consistent with Article 12.1(b) every two years on the basis of

guidelines to be adopted by the Conference of the Parties. Those mitigation actions in national communications or otherwise communicated to the Secretariat will be added to the list in appendix II. Mitigation actions taken by Non-Annex I Parties will be subject to their domestic measurement, reporting and verification the result of which will be reported through their national communications every two years. Non-Annex I Parties will communicate information on the implementation of their actions through National Communications, with provisions for international consultations and analysis under clearly defined guidelines that will ensure that national sovereignty is respected. Nationally appropriate mitigation actions seeking international support will be recorded in a registry along with relevant technology, finance and capacity building support. Those actions supported will be added to the list in appendix II. These supported nationally appropriate mitigation actions will be subject to international measurement, reporting and verification in accordance with guidelines adopted by the Conference of the Parties.

6. We recognize the crucial role of reducing emission from deforestation and forest degradation and the need to enhance removals of greenhouse gas emission by forests and agree on the need to provide positive incentives to such actions through the immediate establishment of a mechanism including REDD-plus, to enable the mobilization of financial resources from developed countries.

7. We decide to pursue various approaches, including opportunities to use markets, to enhance the cost-effectiveness of, and to promote mitigation actions. Developing countries, especially those with low emitting economies should be provided incentives to continue to develop on a low emission pathway.

8. Scaled up, new and additional, predictable and adequate funding as well as improved access shall be provided to developing countries, in accordance with the relevant provisions of the Convention, to enable and support enhanced action on mitigation, including substantial finance to reduce emissions from deforestation and forest degradation (REDD-plus), adaptation, technology development and transfer and capacity-building, for enhanced implementation of the Convention. The collective commitment by developed countries is to provide new and additional resources, including forestry and investments through international institutions, approaching USD 30 billion for the period 2010 – 2012 with balanced allocation between adaptation and mitigation. Funding for adaptation will be prioritized for the most vulnerable developing countries, such as the least developed countries, small island developing States and Africa. In the context of meaningful mitigation actions and transparency on implementation, developed countries commit to a goal of mobilizing jointly USD 100 billion dollars a year by 2020 to address the needs of developing countries. This funding will come from a wide variety of sources, public and private, bilateral and multilateral, including alternative sources of finance. New multilateral funding for adaptation will be delivered through effective and efficient fund arrangements, with a governance structure providing for equal representation of developed and developing

countries. A significant portion of such funding should flow through the Copenhagen Green Climate Fund.

9. To this end, a High Level Panel will be established under the guidance of and accountable to the Conference of the Parties to study the contribution of the potential sources of revenue, including alternative sources of finance, towards meeting this goal.

10. We decide that the Copenhagen Green Climate Fund shall be established as an operating entity of the financial mechanism of the Convention to support projects, programme, policies and other activities in developing countries related to mitigation including REDD-plus, adaptation, capacity-building, technology development and transfer.

11. In order to enhance action on development and transfer of technology we decide to establish a Technology Mechanism to accelerate technology development and transfer in support of action on adaptation and mitigation that will be guided by a country-driven approach and be based on national circumstances and priorities.

12. We call for an assessment of the implementation of this Accord to be completed by 2015, including in light of the Convention’s ultimate objective. This would include 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.

Appendix I Quantified economy-wide emissions targets for 2020

Appendix II Nationally appropriate mitigation actions of developing country Parties ______

Questions and Discussion

1. Identify the key elements of the Copenhagen Accord:

• Does the Accord establish a mitigation goal? If yes, how does it direct the Parties to meet that goal?

• Does the Accord provide funding for adaptation to climate change? Does it provide funding for developing countries’ implementation of their NAMAs? Must developing countries submit pledges or otherwise associate with the Accord to receive funding for adaptation or mitigation measures?

• How does the Accord differ in its approach to monitoring and verifying compliance with the pledges of developed and developing countries? What is the link, if any, to the institutions and mechanisms for verification under the Kyoto Protocol, such as the expert review teams established under Article 8 (see page 321) and the compliance mechanism developed by Decision 27/CMP.1 (see pages 315–16)?

• At one point in the negotiations, many thought that the only binding outcome of the negotiations would be a mechanism to reduce emissions from deforestation and forest degradation in developing countries (REDD) (see pages 295–303). How does the Accord address the REDD?

• Does the Accord address whether the Parties should move forward with a two-track approach or a single-track approach?

• Does the Accord address the Bali Action Plan’s call for “enhanced action on technology development and transfer to support action on mitigation and adaptation”?

2. The Parties agreed to “take[] note” of Copenhagen Accord. Yvo de Boer, the UNFCCC Executive Secretary, has said the phrase “is a way of recognizing that something is there, but not going so far as to associate yourself with it.” What legal status does that give the Accord? Consider the following analysis from Jacob Werksman of the World Resources Institute:

Is the Copenhagen Accord a binding document? Not in a legal sense. In fact, the words “legally binding” were conspicuously removed from earlier drafts of the Accord by delegations that aren’t yet ready to enter into a legally binding instrument. But the Accord is “politically binding” on those countries that choose to sign up to it. A number of delegations publically expressed their approval of it during the final Conference of Parties (COP) plenary session. And the Convention Secretariat is setting up a process for governments to associate themselves with the Accord, and the names of their countries will be formally listed alongside the text.

But “politically binding” is not the same as “legally binding.” Politically binding—if anything—means that political consequences will flow from its breach—diplomatic responses, efforts at public shaming, withholding of discretionary funding, etc. In this sense, the Accord can be considered a strong, high level commitment by the countries that have adhered to it, and many groups are choosing to interpret it in this sense….

However, the decision to “take note” of the Copenhagen Accord does not change the nature of the Agreement; it does not, for example, give it the significance of a COP decision.

Jacob Werskman, “Taking Note” of the Copenhagen Accord: What It Means, http://www.wri.org/stories/2009/12/taking-note-copenhagen-accord-what-it-means (2009).

3. The accord declares itself to be “operational immediately.” Given the character of the Accord, however, some provisions can be operationalized immediately, while others will require formal actions by the Conference of the Parties. For example, the Parties had until January 31, 2010 to submit their pledges, and the Parties may notify the Secretariat of their willingness to associate with the Accord at any time. These provisions are operational immediately. On the other hand, paragraph 10 calls for the establishment of a “Copenhagen Green Climate Fund” as part of the UNFCCC’s existing financial mechanism. This will require further action by the CoP before it can become operational. If you were the UNFCCC Executive Secretary, what steps would you take to assist in the long-term implementation of the Accord?

4. Before the Accord took shape, lawyers and advocates of all stripes sought clarity on what type of action would be necessary to achieve legally binding commitments. The issue arose as many environmental groups and developing country Parties looked for ways to ensure that any U.S. commitments would be “legally binding.” With U.S. climate change legislation stalled in the Senate, the simple answer of negotiating a new treaty—which would require a two-thirds vote of the Senate and implementing legislation approved by both the Senate and the House—did not seem realistic. As a consequence, the conference halls were full of chatter about the legally binding character of CoP decisions and the possibility of an “executive agreement” that would not require U.S. Senate consent to ratification.

Decisions. Among traditional public international lawyers, the question of whether “decisions” are binding as a matter of international law has a simple answer: they are not. Indeed, the foundation of international lawmaking places treaties, custom, and general principles of law as lex lata, “hard” law. On the other hand, resolutions and decisions of the United Nations General Assembly, multilateral conferences, and Conferences of the Parties to multilateral agreements are lex ferenda, “soft” law. Some complained that arguing that CoP decisions are not legally binding undermined decades of campaigning on international environmental law. Others, however, see the hard law-soft law distinction as “a critical part of the consensus-building that is ultimately needed to negotiate an environmental treaty.” DAVID HUNTER, JAMES SALZMAN & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 353 (3d ed. 2007). Nonetheless, some lawyers pointed to the Montreal Protocol on Substances that Deplete the Ozone Layer and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as examples of treaties that allow the Parties to adopt legally binding decisions. Article 2(9) of the Montreal Protocol allows the Parties to adjust the phaseout schedules for ozone depleting substances already included in an Annex to the Protocol. Article XV of CITES allows the Parties to amend the Appendices of species to which trade restrictions apply. Unlike “general” decisions of the Parties, these provisions expressly provide that these specific decisions are binding. Decisions not falling under special provisions establishing their binding legal character are thought to be highly authoritative and persuasive as to the Parties’ intent, but nonetheless not legally binding. All this said, a number of scholars have sought to recharacterize those resolutions and decisions that have normative character as “general international law” or “universal law” that might be binding on the international community. See, e.g., Gunther Handl, The legal Mandate of Multilateral Development Banks as Agents for Change for Sustainable Development, 92 AM. J. INT’L. L. 642, 620–62 (1998); Jonathan Charney, Universal International Law, 87 AM. J. INT’L L. 529 (1993). These views, however, represent the minority position.

In Copenhagen, the binding nature of CoP decisions became entwined with the issue of whether decisions could nonetheless bind the United States. In a case assessing whether a decision of the Parties to the Montreal Protocol could bind the United States, the court said “no.” NRDC v. EPA, 464 F.3d 1 (D.C. Cir. 2006). In that case, NRDC challenged the EPA’s decision to authorize continued use of methyl bromide in violation of decisions of the Montreal Protocol Parties establishing the requirements for its continued use. Rather than address the merits of NRDC’s challenge, however, the court concluded that the decisions were not “law” that could bind the EPA. Id. at 8-9. In this deeply flawed opinion, however, the court made several mistakes. For example, the court assumed that decisions reflect the Parties’ “common understanding that the decisions are internationally political commitments rather than judicially enforceable domestic law.” Id. at 10. However, it is very doubtful that the Parties contemplate whether decisions might be judicially enforceable in domestic courts. The court further assumed that the failure of the Parties to trigger the Montreal Protocol’s noncompliance procedure against the United States “suggests that the Parties intended the side agreements to be enforceable as a political matter.” Id. The Parties could have equally thought that the United States was in compliance or that the importance of other matters outweighed triggering the noncompliance mechanism against the United States. More fundamentally to the issue at hand, the court failed to analyze the Clean Air Act. Under the Clean Air Act, the U.S. Court of Appeals for the D.C. Circuit may reverse EPA actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Clean Air Act §§ 42 U.S.C. §§ 7607(b)(1), (d)(9)(A). As Professor Knox argues, the court should have addressed whether the Montreal Protocol decision was “law” within the meaning of the Clean Air Act, and if it was, whether EPA acted in accordance with it. John H. Knox, Natural Resources Defense Council v. Environmental Protection Agency, 464 F. 3d 1, United States Court of Appeals for the District of Columbia Circuit, August 29, 2006, 101 A.J.I.L. 471, 474 (2007).

Executive Agreements. Could other strategies successfully evade the U.S. Senate and bind the United States? One time-honored approach is an executive agreement. See Nigel Purvis, Paving the Way for U.S. Climate Leadership: The Case for Executive Agreements and Climate Protection Authority (Resources for the Future: Apr. 2008). The President has used his foreign affairs authority on many occasions to negotiate executive agreements—some 15,000. These executive agreements can be Congressional-Executive agreements that Congress authorizes ex ante or ex post. Free trade agreements are a common example of Congress authorizing the agreement ex ante through Trade Promotion Authority legislation. Of course, both of these options do not evade Congress. Would a solely executive agreement work? Probably not. The Senate Foreign Relations Committee report on ratification of the UNFCCC stated that “a decision by the Conference of the Parties to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement.” S.Exec.Rept. 102-55, 102d Cong., 2d Sess. (1992), at 14. While the President might successfully negotiate such a deal, Congress still controls the purse and it would be reluctant to appropriate funds for such an obvious evasion of Senate authority.

5. The original deadline for countries to associate with the Copenhagen Accord and to announce their initial pledges was January 31, 2010. As of that date, 55 countries (including 25

10 non-Annex I Parties not within the EU) had submitted national pledges to cut and limit greenhouse gases by 2020. Some examples of country commitments made under the Copenhagen Accord are set forth below.

Appendix I - Quantified Economy-wide Emissions Targets for 2020

Annex I Party Quantified economy-wide emissions targets for 2020 Base Year Australia -5% up to -15% or -25% 2000

Australia will reduce its greenhouse gas emissions by 25% on 2000 levels by 2020 if the world agrees to an ambitious global deal capable of stabilising levels of greenhouse gases in the atmosphere at 450 ppm CO2-eq or lower. Australia will unconditionally reduce our emissions by 5% below 2000 levels by 2020, and by up to 15% by 2020 if there is a global agreement which falls short of securing atmospheric stabilisation at 450 ppm CO2- eq and under which major developing economies commit to substantially restrain emissions and advanced economies take on commitments comparable to Australia's. Canada 17%, to be aligned with the final economy-wide emissions target of the United States in 2005 enacted legislation. [eds. note: French language translation omitted] Croatia -5% 1990

Temporary target for Croatia. Upon the accession of Croatia to the European Union, the Base year Croatian target shall be replaced by arrangement in line with and part of the European calculated Union mitigation effort. according to decision 7/CP.12 EU¹ and its 27 20%/30%² 1990 Member States ²As part of a global and comprehensive agreement for the period beyond 2012, the EU ¹Currently, not all reiterates its conditional offer to move to a 30% reduction by 2020 compared to 1990 EU Member States levels, provided that other developed countries commit themselves to comparable are Annex I Parties emission reductions and that developing countries contribute adequately according to their responsibilities and respective capabilities. Japan 25% reduction, which is premised on the establishment of a fair and effective international 1990 framework in which all major economies participate and on agreement by those economies on ambitious targets. Kazakhstan 15% 1992 New Zealand New Zealand is prepared to take on a responsibility target for greenhouse gas emissions 1990 reductions of between 10 per cent and 20 per cent below 1990 levels by 2020, if there is a comprehensive global agreement. This means: • the global agreement sets the world on a pathway to limit temperature rise to not more than 2° C; • developed countries make comparable efforts to those of New Zealand; • advanced and major emitting developing countries take action fully commensurate with their respective capabilities; • there is an effective set of rules for land use, land-use change and forestry (LULUCF); and • there is full recourse to a broad and efficient international carbon market. Norway 30-40% 1990

As part of a global and comprehensive agreement for the period beyond 2012 where major emitting Parties agree on emissions reductions in line with the 2 degrees Celsius target, Norway will move to a level of 40% reduction for 2020. Russian Federation 15-25%* [eds. note: Russian language footnote omitted] 1990 United States of In the range of 17%, in conformity with anticipated U.S. energy and climate legislation, 2005 America recognizing that the final target will be reported to the Secretariat in light of enacted legislation.¹ ¹The pathway set forth in pending legislation would entail a 30% reduction in 2025 and a 42% reduction in 2030, in line with the goal to reduce emissions 83% by 2050.

Appendix II - Nationally appropriate mitigation actions of developing country Parties (selected Parties)

Non-Annex I Nationally appropriate mitigation actions Party Armenia Implementation of “The National Program on Energy Saving and Renewable Energy of the Republic of Armenia (2007) • Increase in energy production based on renewable energy sources • Modernization of thermal power plants • Improvement of energy efficiency in all sectors of the economy • Improvement of energy efficiency in buildings and constructions In the transport sector: expansion of the electrical transport and increase of the natural gas share in motor transport’s fuel Decrease in methane emissions from solid municipal waste and waste water Restoration of degraded forests, afforestation and reducing the volumes of deforestation, sustaining soil CO2 content and ensuring its increase. Botswana Botswana will use the registry of [NAMAs] and recognizes NAMAs are voluntary and not legally binding. These actions will include sustainable development policies (SD-PAMs) such as: • energy efficiency programmes; • policies in the transport sector; • standards in the building sector; • minimum energy performance standards for household appliances. Brazil • Reduction in Amazon deforestation (range of estimated reduction: 564 million tons of CO2eq in 2020); • Reduction in “Cerrado” deforestation (range of estimated reduction: 104 million tons of CO2eq in 2020); • Restoration of grazing land (range of estimated reduction: 83 to 104 million tons of CO2eq in 2020); • Integrated crop-livestock system (range of estimated reduction: 18 to 22 million tons of CO2eq in 2020); • No-till farming (range of estimated reduction: 16 to 20 million tons of CO2eq in 2020); • Biological N2 fixation (range of estimated reduction: 16 to 20 million tons of CO2eq in 2020); • Energy efficiency (range of estimated reduction: 12 to 15 million tons of CO2eq in 2020); • Increase the use of biofuels (range of estimated reduction: 48 to 60 million tons of CO2eq in 2020); • Increase in energy supply by hydroelectric power plants (range of estimated reduction: 79 to 99 million tons of CO2eq in 2020); • Alternative energy sources (range of estimated reduction: 26 to 33 million tons of CO2eq eq in 2020); • Iron & steel (replace coal from deforestation with coal from planted forests (range of estimated reduction: 8 to 10 million tons of CO2eq in 2020);

It is anticipated that these actions will lead to an expected reduction of 36.1% to 38.9% regarding the projected emissions of Brazil by 2020. China China will endeavor to lower its carbon dioxide emissions per unit of GDP by 40-45% by 2020 compared to the 2005 level, increase the share of non-fossil fuels in primary energy consumption to around 15% by 2020 and increase forest coverage by 40 million hectares and forest stock volume by 1.3 billion cubic meters by 2020 from the 2005 levels. Congo Listed 33 specific actions. India India will endeavour to reduce the emissions intensity of its GDP by 20-25% by 2020 in comparison to the 2005 level. Israel Israel “will do its utmost” to reduce its CO2 emissions by 20% compared to a business as usual scenario primarily by calling for a 10% share of renewable energy generation and 20% reduction in electricity consumption. Marshall 40% reduction of CO2 emissions below 2009 levels by 2020. Islands Mexico Mexico aims at reducing its GHG emissions up to 30% with respect to the business as usual scenario by 2020, provided the provision of adequate financial and technological support from developed countries as part of a global agreement. Moldova A reduction of all GHG emissions of no less than 25% from 1990 levels by 2020 of South Africa 34% reduction in emissions based on a business as usual emissions trajectory by 2020. 42% reduction in emissions based on a business as usual emissions trajectory by 2025. Implementation dependent on provisions of financial resources, the transfer of technology and capacity building support by developed countries.

For a full list of country commitments and other information submitted under the Copenhagen Accord, see http://unfccc.int/home/items/5262.php. The Climate Action Network is also maintaining information about country commitments to the Accord. See http://www.usclimatenetwork.org/policy/copenhagen-accord-commitments. Many of the developing countries, including many not reflected in the table above, submitted long lists of actions that they intend to take. Why do you think they did so? Why do you think developed countries made their commitments contingent on the action of others? On the UNFCCC’s website, read the full text of the pledges made by China, India, Brazil and South Africa. Did they formally associate with the Accord? If not, what is the effect of their pledges?

6. Overall, the pledges under the Copenhagen Accord have received a tepid response. Yvo de Boer, the UNFCCC Executive Secretary, said: “Greater ambition is required to meet the scale of the challenge. But I see these pledges as clear signals of willingness to move negotiations towards a successful conclusion.” Press Release, UNFCCC Secretariat, UNFCCC Receives List of Government Climate Pledges (Feb. 1, 2010). Alden Meyer, policy director at the Union of Concerned Scientists, stated: “This is the first time countries are committed to this [2ºC] goal, that’s the good news ... The bad news, of course, is the pledges that have been put on the table to date don’t put us on track to meet that goal.” Copenhagen Pledges Fall short of 2C Target, Says UN Climate Chief, THE GUARDIAN, Feb. 2, 2010, http://www.guardian.co.uk/environment/2010/feb/02/climate-change-target-copenhagen-un. Just where do these commitments take us? One analysis concludes that the pledges of all countries currently associated with the Accord “lead to a striking inconsistency with the 2ºC goal … [and] leave the world heading for a global warming of over 3ºC above pre-industrial levels by 2100.” Press Release, Ecofys, Ambition of Only 2 Developed Countries Sufficient for Copenhagen Accord Meeting 2ºC Target (Feb. 2, 2010). Others agree:

Existing pledges by developed countries, when added together, could represent a substantial effort for reducing Annex I emissions by 2020—a 12 to 19% reduction of emissions below 1990 levels depending on the assumptions made about the details of the pledges. But they still fall far short of the range of emission reductions—25 to 40%—that the IPCC notes would be necessary for stabilizing concentrations of CO2e at 450 ppm, a level associated with a 26 to 78% risk of overshooting a 2ºC goal. If the pledges are not ratcheted up even beyond the highest pledges, this analysis shows that the additional reductions required between 2020 and 2050 would be significant, with emissions dropping roughly 2.5% annually to reach a goal of 80% below 1990 levels by mid-century.

KELLY LEVIN & ROB BRADLEY, COMPARABILITY OF ANNEX I EMISSION REDUCTION PLEDGES 2 (World Resources Institute: Feb. 2010).

7. After the deal was brokered in Copenhagen among the United States, China, and a group of about 20 other developing and developed countries, President Obama immediately held a news conference announcing the deal, even before the Conference of the Parties had taken any action on it. His goal was probably two-fold. First, he no doubt wanted to send a message to the United States that he was able to obtain concessions from China, India, and Brazil. That message

13 would signal to the U.S. Senate in particular that any U.S. commitment to reduce emissions would be coupled with commitments from major developing country emitters and industrial competitors. Second, he no doubt wanted to announce the deal publicly to ensure that China and others did not back out of the Accord. While he may have succeeded on those two points, he also alienated most if not all developing countries that were excluded from the Accord’s negotiation. These countries already felt marginalized in the broader negotiations even while many of them are taking the brunt of climate change impacts. The announcement by President Obama confirmed that they are not equal partners. It is among the reasons why many Parties refused to “adopt” the Accord. His announcement also highlighted the impotence of the UNFCCC process, as he announced the agreement unilaterally before it could be introduced through the UN process. Given these international sensitivities on the one hand and domestic politics on the other, was President Obama’s public announcement before the CoP took action ill advised?

8. The world has arguably never seen a meeting like Copenhagen. Roughly 45,000 individuals representing governments, environmental NGOs, research NGOs, business NGOs and many others registered to attend the Copenhagen meeting. The venue for the meeting, the Bella Center, however, only has a capacity for 15,000, and many observers who had registered for and traveled to the meeting were denied access to the Center. The announcement of President Obama and other leaders that they would be attending the second week also ensured enhanced security measures would be imposed. During the first week, observers easily came and went to and from the Bella Center. By the end of that week, however, it became clear that many more registered participants intended to attend than the Secretariat had planned for. On Monday morning of the second week of the meeting, thousands of registered participants lined up outside the Bella Center waiting to receive their security badges that would give them access to the meeting inside. Many people waited at least eight hours in the cold before they were told no more people could enter. The same thing happened on Tuesday.

By week two of the meeting, meeting organizers also began limiting access for those who had easily entered the Bella Center the week before and already obtained their security badges. First, the Secretariat restricted access by requiring groups to obtain “secondary badges” that allowed them access to the Center. Delegations of nine observers received four secondary badges, delegations of 40 received 16, and so on. While those badges gained an observer access to the Center, observers needed yet another “silver” badge to get into the plenary meetings. Even then, at one point, NGOs with their coveted “silver” badges could not access the plenary room because government delegates filled the room. Later in the second week, as heads of State arrived, access was further limited. On Thursday, the Secretariat allowed only 1,000 observers into the building; on Friday, just 90 could enter. As a result of these restrictions, and the problems with registration during the second week, many people arrived in Copenhagen, tried for two days to register, and then returned home without ever gaining access to the negotiations. Should the government of Denmark have notified participants that they might not get in? Consider that at least 30 NGOs had delegations of more than 100, with Friends of the Earth and International Emissions Trading Association each registering more than 480 people. Several governmental delegations, including the United States and Indonesia, had delegations of about 200; Brazil’s delegation was almost 700 strong. Should the Climate Change Secretariat or the Parties limit the number of representatives NGOs may register? The number of delegates that a government may bring?

9. At one point in the meeting, the delegate from Tuvalu noted that it was peculiar that the legislature from one country—i.e., the U.S. Senate—could block adoption of a climate change treaty. The Observer, a U.K. newspaper, placed the blame squarely on China’s shoulders. Jonathan Watts et al., China Blamed As Anger Mounts over Climate Deal, THE OBSERVER, at 1, Dec. 20, 2009). At one point, for example, China blocked efforts to include a commitment by developed countries to reduce greenhouse gas emissions by 50% by 2050. Is any particular country to blame?

10. Do the chaotic and largely unsatisfying Copenhagen negotiations suggest that another negotiating approach is needed to make significant action on climate change? Would the Major Economies Forum, President Obama’s negotiating venue for major greenhouse gas emitters, be more likely to produce better results? Would a regional approach work better? Have the climate negotiations simply grown too complicated for annual negotiations? Can one negotiation, for example, cover widespread issues such as overall greenhouse gas reduction targets, international financial mechanisms, potential fuel taxes on international air and maritime travel, forest conservation standards, and the future of the Clean Development Mechanism. Each of these is complex on their own; collectively they are a nightmare for those trying to manage the negotiations. Why do you think many countries want to keep all of the issues together? Does the world need a standing institution with permanent representatives, more like the World Trade Organization, to handle climate negotiations over the long-term?