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Climate Change Notes

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Climate Change Notes

What is the climate change problem and what is climate change law?
Pollutants and Environmental Mechanism
There is a suite of atmospheric greenhouse gases (GHGs) which work together with clouds to intensify the sun's heat by trapping it in our atmosphere - this is the greenhouse effect
 This in turn leads to a distortion of the earth's climate
Despite past controversy over the science of climate change, it is now recognized by the majority of the international scientific community that anthropogenic GHGs have been increasingly causing such atmospheric distortions since industrialization, which have resulted in problematic levels of global warming.
The main sources of the increasing atmospheric concentrations of these gases are the combustion of fossil fuels, as well as land use change (particularly deforestation), livestock rearing, biodegradable landfill waste, the use of agricultural fertilizers, and the use of CFCs in refrigeration and fire-retardant equipment
Framing the Problem
A key feature of the scientific understanding of the problem is that the total concentration of anthropogenic GHGs in the global atmosphere is the relevant case of the amplified greenhouse effect
The regulatory approaches adopted to deal with climate change can in turn frame and define the very problem of climate change.
 For instance, by focusing regulatory efforts on pricing GHG emissions, the climate change problem is broadly shaped as a financial cost of human activity and industrialisation.
o BUT: climate change also has ecological, socio-political, and ethical dimensions that are not easily captured through regulatory strategies that focus solely on financial metrics and market mechanisms
Climate Change Law
A result of the social embedding of climate change is that the law relating to it is very wideranging
 Peel (2008) argues that climate change has both an integral international dimension, but is also a problem which requires the integrated efforts of governments from the local to national levels

He also notes how the law relating to climate change is both vertically differentiated and horizontally differentiated
 Vertically Differentiated - this constitutes a scheme of multi-level governance 

Horizontally Differentiated - this constitutes climate change consideration penetrating a variety of legal areas such as insurance law. Planning law, taxation law and energy law
 In this regard Scotford and Minas (2019) have said that
"climate-related legislation does not necessarily come with the label 'climate change' in its title or within its provisions"

Fisher (2013) notes three reasons for an intense scholarly interest in climate litigation:

1. It is understood to be a response to institutional failure on the art of both international and national bodies

2. A belief that, the legal reasoning in the judgements is an authoritative statement about what is relevant in regards to thinking about anthropogenic-induced climate change

3. It "legitimises concerns" over climate change not only by stating what the law is but by stating what the facts are
What is the international approach to climate change?
UN Framework Convention on Climate Change
The central plank of the international climate change regime is the UN Framework
Convention on Climate Change (UNFCCC), which encourages stabilisation of GHG emissions by industrialised countries at levels that will not cause dangerous climate effects and establishes a core principle of "common but differentiated responsibilities"
Article 2 places scientific facts at the core of the commitment made by signatory states:

The ultimate objective of this Convention and any related legal instruments that the
Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner
The UNFCCC is a framework convention - it sets out overall goals, principles and the direction of international regulation, rather than comprehensive detailed commitments
 Article 3(1) sets out the principle of common but differentiated responsibilities and respective capabilities

This manifests in the two Annexes, which list those developed nationas that will be required to take the lead in combatting climate change and the effects thereof'
 It includes other general principles such as (i) intergenerational equity (in substance,
not in form); (ii) sustainable development, (iii) a version of the precautionary principle; (iv) the promotion of an open economic system, and (v) the need to consider special circumstances of developing countries
In terms of commitments:

Article 4(1) requires all parties the Convention requires all parties—developed and developing:
o to report national anthropogenic emissions;
o to undertake mitigation programmes;
o to take climate change into account in their social, economic, and environmental policies and actions; and

to co-operate in research and information-sharing in relation to the climate system and climate change, including technology development and transfer.

Article 4(2) establishes differentiated responses for developed country parties

In particular, Annex I parties must adopt policy measures to limit emissions and enhance GHG sinks and reservoirs

Articles 4(3) and 4(4) go a step further, requiring Annex II parties (a subset of Annex I
countries) to finance developing countries in meeting their obligations under the
Convention,
o This includes funding technology transfer, as well as assisting developing nations to meet some costs of adapting to climate change.

Kyoto Protocol
The Kyoto Protocol, signed in 1997 and ratified in 2005, was a protocol to the UNFCCC
which imposed internationally binding GHG emissions reduction obligations on those
Annex I developed nations who ratified the Protocol.
The effect of Kyoto is developing Article 4(2) UNFCCC, imposing a heavier legal burden on those nations under the principle of common but differentiated responsibilities
 Annex I parties were allocated varying reduction commitments (in Annex B of the
Protocol), reflecting their different capacities to reduce emissions.
o The overall result of these provisions, for the 2008-2012 compliance period,
should have been a reduction of 5.2% in global GHG emissions below 1990 levels
The Protocol allows various flexibility mechanisms for meeting reduction commitments.
 Article 4 provides that emissions reductions obligations can be aggregated by agreement, so that combined emissions in an aggregated group are not to exceed the sum total of the assigned amounts for its constituent countries
 There are two project-based mechanisms:
o Article 6 - establishes the Joint Implementation provision
 This allows Annex I parties to benefit from emissions reductions activities undertaken by other Annex I parties by the trasnferral of
'emission reduction units' (ERUs), issued for emission reduction activities that are additional to existing projects in the transferring state

Article 12 - establishes the Clean Development Mechanism
 This allows Annex I parties to benefit from emission reduction projects in developing companies that are parties to the Protocol
 Annex I countries get credit for financing projects that result in
'certified emission reductions (CERs) so long as these are additional to those that would have otherwise occurred in those developing countries

Article 17 - allows emissions trading between Annex I parties

Paris Agreement
A range of conference of the parties meetings (COP) were held in light of the intractable mix of science, ethics, urgent environmental crisis and rapid national economic development.
The result of all this was the negotiation of the Paris Agreement, an international agreement which was very different to many which came before it (including Kyoto and
UNFCCC).
 Article 2 - the agreement (alongside implementation of the UNFCCC) has as its aim the strengthening of the global response to the threat of climate change

Article 3 - all parties are to undertake and communicate ambitions efforts as defined in Articles 4, 7, 9, 10, 11 and 13 with the view to achieving the purpose of this Agreement as set out in Article 2
Article 4 - (Aims to Reduce - Nationally Determined Contributions)
o (1) - in order to achieve the long-term temperature goal set out in Article 2,
Parties aim to reach global peaking of greenhouse gas emissions as soon as possible

(2) - each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve

(4) - developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets.
 developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction

(5) - support shall be provided to developing country Parties for the implementation of this Article … recognizing that enhanced support for developing country Parties will allow for higher ambition in their actions

(6) - the least developed countries and small island developing States may prepare and communicate strategies, plans and actions for low greenhouse gas emissions development reflecting their special circumstances.
o (9) - each Party shall communicate a nationally determined contribution every five years. 

Article 7 - (Aims to Adapt and Strengthen Against the Effects of Climate Change)
o (1) - Parties hereby establish the global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change, with a view to contributing to sustainable development

(4) - Parties recognize that the current need for adaptation is significant and that greater levels of mitigation can reduce the need for additional adaptation efforts, and that greater adaptation needs can involve greater adaptation costs.
o (5) - Parties acknowledge that adaptation action should follow a countrydriven, gender-responsive, participatory and fully transparent approach,
taking into consideration vulnerable groups, communities and ecosystems,
and should be based on and guided by the best available science and, as appropriate, [traditional, indigenous and local] knowledge
Article 8 - (Addressing Loss Caused by Climate Change)
o (1) - Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change

(3) - Parties should enhance understanding, action and support, including through the Warsaw International Mechanism, as appropriate, on a cooperative and facilitative basis
Article 9 - (Assisting Other Countries)
o (1) - developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation

(2) - other Parties are encouraged to provide or continue to provide such support voluntarily

(3) - developed country Parties should continue to take the lead in mobilizing climate finance from a wide variety of sources, instruments and channels
Article 13 - (Transparency)
o (1) - In order to build mutual trust and confidence and to promote effective implementation, an enhanced transparency framework for action and support, with built-in flexibility which takes into account Parties' different capacities and builds upon collective experience is hereby established.
o (3) - the transparency framework shall … be implemented in a facilitative,
non-intrusive, non-punitive manner, respectful of national sovereignty, and avoid placing undue burden on Parties.
o (5) - The purpose of the framework for transparency of action is to provide a clear understanding of climate change action in the light of the objective of the Convention

(6) - The purpose of the framework for transparency of support is to provide clarity on support provided and received by relevant individual Parties

(7) - each Party shall regularly provide the following information:
 a national inventory report of anthropogenic emissions by sources and removals by sinks of greenhouse gases … and
 Information necessary to track progress made in implementing and achieving its nationally determined contribution under Article 4.
Article 14 - (Taking Stock)

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