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International Climate Change Law by Bodansky, Daniel; Brunnée, Jutta; Rajamani, Lavanya (25th May 2017)

8 Climate Governance beyond the United Nations Climate Regime

From: International Climate Change Law

Daniel Bodansky, Jutta Brunnée, Lavanya Rajamani

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 30 March 2020

Subject(s):
Responsibility of non-state actors — Climate change — Environmental disputes — Responsibility of states

(p. 258) Climate Governance beyond the United Nations Climate Regime

I.  Introduction

The climate change problem implicates virtually every aspect of society and every economic sector. So it is perhaps not surprising that it engages institutions of every kind, both public and private, at every scale, from local to global.1 One study identified seventy transnational institutions that perform governance functions related to climate change—by setting standards, providing and disseminating information, building capacity, and managing projects.2 Some of these transnational institutions involve public actors, others are private, and still others involve public–private partnerships. And this list of seventy institutions does not include the many international organizations involved in the climate change problem, such as the International Maritime Organization (IMO), the International Civil Aviation Organization (ICAO), and the World Bank, or the countless institutions that operate within a single state, rather than transnationally. As of January 2017, the Lima to Paris Action Agenda (LPAA) and its associated ‘NAZCA’ portal, which records actions by sub- and non-state actors, lists approximately 12,500 commitments, more than 2,000 from cities, a roughly equal number from private companies, and more than 230 from civil society organizations.3

This groundswell of activity provides political support for the Paris Agreement, helps enhance the credibility of states’ existing nationally determined contributions (NDCs), and could catalyze stronger NDCs in the future. But it could also supplement the UN climate regime or even substitute for it, if the inter-governmental process were to falter (for example, because countries withdraw from the Paris (p. 259) Agreement due to domestic political changes, a distinct possibility for the US under the administration of President Donald Trump). Even the most optimistic estimates of the contributions put forward by states both at the 2009 Copenhagen conference and the 2015 Paris conference show that there is a significant gap between countries’ pledges and the reductions necessary to keep global warming below 2° C.4 Many see the proliferation of initiatives outside the UN climate regime as a critical means of ‘wedging’ this gap.5 As one commentator argues, ‘[r]elying on national governments alone to deliver results is not enough … The real action on climate change around the world is coming from governors, mayors, corporate chief executives and community leaders. They are the ones best positioned to make change happen on the ground’.6 Thus far, however, tracking the degree to which sub- and non-state actions have actually been responsible for reducing emissions has proven challenging, making assessment of these claims difficult.7

The complex, decentralized architecture of climate governance has been theorized in many ways—for example, in terms of a ‘transnational regime complex’,8 ‘polycentricity’,9 ‘multi-level governance’,10 or ‘fragmentation’.11 Regardless of the label used, climate change governance outside the FCCC has four central features:

II.  Multi-Level Climate Governance

Although the theory of multi-level governance is comparatively recent,16 the fact of multi-level governance is not. Once political communities organize at more than the local level, governance operates at multiple scales. International law has always, to some degree, had a multi-level character, in that international institutions generally act through national governments rather than directly, and international law depends for its implementation primarily on states. Traditionally, however, international law’s multi-level character has been circumscribed by its focus on the national rather than the sub-national level and on governmental rather than non-governmental actors.

Multi-level governance involves horizontal relationships between institutions at the same hierarchical or geographical level, vertical relationships between institutions at different levels,17 and diagonal relationships between institutions at different levels in different countries.18 Multilateral institutions such as the FCCC, IMO, and World Bank have horizontal relationships with one another, as well as vertical relationships with states and non-governmental actors. States relate horizontally to one another bilaterally and multilaterally; they have vertical relationships with international institutions above and sub-national actors below; and sometimes they have diagonal relations with sub-national actors in other states. And sub-national and private actors have horizontal relationships with one another (for example, through networks like the Compact of Mayors19 and the C40 Cities (p. 261) Climate Leadership Group20); vertical relationships with national and international institutions; and diagonal relationships with institutions at other levels in other governance hierarchies. Theories of multi-level governance seek to explore these relationships—horizontal, vertical, and diagonal—between the multitude of governance institutions.

Multi-level governance can be hierarchic or polycentric. In a hierarchic system, some institutions have primacy over others.21 Hierarchy is most common among vertically related institutions—that is, those with different geographic scales. For example, international law asserts its priority over national law by stipulating that national law does not provide a justification for violating a state’s international obligations.22 Similarly, within states, national law is usually superior to local law, so national climate policies constrain the actions of sub-national units. But hierarchy can also exist among horizontally related institutions. For example, in the international system, the UN Charter provides for its own primacy over other treaties.23

Polycentric systems, in contrast, have multiple nodes of authority, with overlapping jurisdiction but no hierarchical ordering.24 In a polycentric system, multiple institutions are potentially able to address the same issue, creating the risk of duplication of effort and conflict. The relationships of international organizations are generally polycentric: their jurisdiction can overlap and none is superior to any other. The same is true of the state system, which is premised on the principle of sovereign equality.

The concepts of hierarchy and polycentrism are both ideal types; many systems of multi-level governance have elements of both. A federal system such as the United States (US), for example, has polycentric features, since the jurisdiction of federal and state governments overlap.25 States can develop their own climate policies, employing the same types of regulatory instruments (such as emissions trading) as the federal government. But American federalism also has a hierarchic character, in that federal law is supreme over state law, in case of conflict. Similarly, many environmental treaties—including the FCCC and the Kyoto Protocol—set minimum standards that bind states; but they do not displace national sovereignty, since they permit states to adopt national climate change policies that go beyond what is required internationally, as many states have done.

The overlapping jurisdiction entailed by polycentric governance has both advantages and disadvantages. On the positive side, allowing multiple institutions to (p. 262) address the same issue allows for experimentation and flexibility. Institutions operating at a local scale can serve as laboratories to try novel approaches, without risk to the larger governance units.26 Even when governance institutions have no formal relationships, they can still learn from one another. To the extent that an approach is successful at one scale, it can serve as a model for other jurisdictions either at the same or higher scales. One state can imitate the success of another; or an approach can work its way up from the local to the national to the international level. For example, California’s regulations have often served as a model for other states and for US federal regulation.27 And the US experience with the sulphur dioxide allowance trading program in the early 1990s served as the inspiration for the Kyoto Protocol’s emissions trading system.28

A decentralized, multi-level approach can also reduce the risks of gaps in a regime since, if one institution is not addressing a significant aspect of a problem, another institution can step in. The Kyoto Protocol does not address black carbon, for example—an aerosol that contributes to global warming but is not, strictly speaking, a greenhouse gas (GHG). So there is a role (discussed in Section IV.C below) for other institutions to fill this gap, including the Arctic Council29 and the Convention on Long-Range Transboundary Air Pollution (LRTAP Convention).30

These positive effects of polycentric governance can be strengthened through the development of networks, which reduce transaction costs, facilitate the diffusion of ideas and technologies, and promote solidarity and cooperation.31 For example, networks of cities such as the C40 Cities Climate Leadership Group play an important role in sharing information about zoning and transportation policies, developing standardized methodologies for municipal emissions inventories, building capacity, and giving voice to local communities at the national and international levels.32

Finally, different governance bodies can complement and reinforce one another, given their different constituencies, competencies, and capacities. Cities have (p. 263) greater local knowledge than national and international institutions—knowledge that can be useful to higher-level institutions in developing implementation strategies and in administering programs to transfer technologies or build capacity. The Montreal Protocol regime furthers the UN climate regime’s goals by declining to fund projects that replace ozone-depleting substances (ODS) with GHGs. And the World Trade Organization (WTO) could reinforce the UN climate regime by working to phase out energy subsidies.33 These complementary activities can arise organically, or they can be orchestrated by an institution that self-consciously encourages or employs other like-minded institutions to perform particular tasks, such as monitoring or capacity-building, for which an institution has particular strengths.34

Although polycentric governance has benefits, it also creates the potential for confusion, duplication of effort, forum shopping, and even conflict—the concerns emphasized in the literature on ‘fragmentation’.35 Locally-determined policies can conflict with national policies; national policies with international policies; and one international policy with another, as sometimes occurs in the trade and environment arena. And even when there are no policy conflicts, the sheer number of similar institutions and networks can produce inefficiencies and tensions.36

At least three approaches can be used to avoid such conflicts. One possibility is for institutions to divide up issues, ex ante, on a geographic or functional basis. For example, among vertically-related institutions (ie those at different levels), issues can be matched with institutions based on their geographic scale. This type of division of labour is the basis for the principle of subsidiarity within the EU, which provides that the EU will not intervene when an issue can be addressed effectively by the member states.37 Similarly, among institutions operating over the same geographic scale, issues can be allocated to the institution with the greatest functional expertise.38 The UN climate regime, for example, provides for a division of labor: it addresses most GHG emissions, but does not regulate emissions of GHGs governed by the Montreal Protocol, and provides that emissions from international transport should be addressed by the relevant UN specialized agency—IMO in the case of maritime emissions, and ICAO in the case of emissions from civil aviation.39

(p. 264) Second, umbrella institutions can be created to coordinate and harmonize the activities of similar, overlapping institutions—for example, through the creation of a registry or registries, to give some order to the various mechanisms for recording and assessing climate actions.40

Finally, to the extent conflicts arise, they can be addressed on a case-by-case basis through conflict rules—for example, the lex specialis rule, which provides that the more specialized rule prevails over the more general one; or the later-in-time rule, which provides that later agreements prevail over earlier ones.41

III.  Public and Private Climate Governance

Climate change governance is not only multi-level; it is also multi-actor. It is not the exclusive preserve of governmental and inter-governmental actors, but also involves a wide variety of non-state actors. The roles and relationships between public and private actors can be conceptualized in terms of what Kenneth Abbott and Duncan Snidal call a ‘governance triangle’,42 whose three vertices are the state, civil society organizations (CSOs), and business (‘the firm’). International law generally focuses on the top part of the triangle, which encompasses state-led activities such as the UN climate regime, regional and sub-national emissions trading systems, and the initiatives of sub-national governments such as provinces and cities. But climate change governance is also exercised by:

  • •  Business, through mechanisms such as the Verified Carbon Standard (VCS), which was developed by the World Business Council for Sustainable Development, the International Emissions Trading Association, and other private groups.43

  • •  Environmental groups and other CSOs—for example, through the Gold Standard.44

  • •  Business in collaboration with governmental actors—for example, through the International Organization for Standardization (ISO) GHG accounting standard.45

  • (p. 265) •  CSOs in collaboration with governmental actors.

  • •  CSOs and business in collaboration with one another—eg through the Carbon Disclosure Project.46

  • •  Governments, CSOs, and business acting together—eg to protect forests through REDD+.47

These joint activities have a variety of rationales, including reducing transaction costs and promoting shared interests. But some may be understood in terms of ‘club’ theory, in which comparatively small groups of actors form clubs in order to exclude others and produce private benefits, such as lower energy costs or new technologies.48

Public and private governance institutions can relate to one another in a variety of ways. Private actors can seek to influence public actors by providing information and technical analysis, raising public awareness, and producing demonstration effects.49 Conversely, states can enlist private actors in an effort to implement their policies. Finally, private actors can operate independently and seek to influence sub- and non-state actors directly.50 For example, the Carbon Disclosure Project works directly with companies to get them to disclose their emissions,51 and Fossil Free pressures universities and other organizations to divest from fossil fuel companies.52

Because only states can establish legally binding rules, the various private initiatives by CSOs and business involve standards that are formally non-binding. Nevertheless, private governance can exert significant authority through network effects, public opinion, and peer pressure. If most of the firms in a particular sector agree on a common standard, for example, other firms may feel the need to conform. If a standard is accepted by the public and influences consumer behavior, producers may feel pressured to adopt it, in order not to be disadvantaged in the marketplace. If the fossil fuel divestment movement mounts a campaign (p. 266) against a university, the university may decide to divest in order to avoid negative publicity.53 In all of these ways, private climate governance can exercise significant authority over behavior. As with any exercise of authority by private, unelected, non-democratic actors, this raises legitimacy concerns.54

IV.  Climate Governance by Other Multilateral Institutions

At the global level, the FCCC has served as the hub of efforts to address the threat of climate change. But many other multilateral institutions have become engaged in climate-related work.55 These include UN specialized agencies such as IMO and ICAO, which address emissions from maritime shipping and civil aviation respectively; political forums such as the Group of 8 (G-8), the Group of 20 (G-20), and the Security Council, which now routinely include climate change on their agendas; and the Major Economies Forum (MEF), a high-level meeting of seventeen major developed and developing states.

Efforts to address the climate change issue in multilateral forums other than the UN climate regime have several rationales:

Addressing the climate change issue in other multilateral forums is unproblematic when the UN climate regime delegates action to the other institution, or when outside activities supplement or complement the FCCC. In the case of IMO and ICAO, for example, the Kyoto Protocol specifically directed Annex I parties to address emissions from international transport in the relevant UN specialized agencies,57 so the UN climate regime has effectively assigned this part of the climate change problem to IMO and ICAO. Similarly, in the case of the Montreal Protocol, decisions to fund projects that replace hydrofchlofofluorocarbons (HCFCs) with chemicals other than hydrofluorocarbons (HFC) complement the UN climate regime, by furthering the Kyoto Protocol’s limits on HFC emissions. Finally, efforts under the LRTAP Convention to reduce emissions of black carbon supplement the UN climate regime, by focusing on a part of the climate change problem that neither the FCCC nor the Kyoto Protocol addresses.

But addressing climate change through other multilateral forums raises concern when it competes with the FCCC process. For example, regulation of HFCs under the Montreal Protocol could be seen as competing with the Kyoto Protocol, which already regulates HFCs.58 As noted earlier, although regulatory competition has potential benefits, it raises the risks of forum shopping, lack of policy coherence and, more generally, the fragmentation of international law.59

Pursuing the climate change issue outside the UN climate regime also raises the question of whether the principles set forth in Article 3 of the FCCC apply—in particular, the principle of common but differentiated responsibilities and respective capabilities (CBDRRC).60 This question has arisen in the work of IMO and ICAO to limit maritime and aviation emissions. Neither IMO nor ICAO applies the principle of CBDRRC in its other work; instead, they seek to regulate ships and planes uniformly, regardless of nationality. In general, IMO has chosen to apply the same principle of non-discrimination in its climate change work, rather than differentiate between the obligations of developed and developing countries.61 But this approach remains controversial.

(p. 268) A.  Bunker emissions

Aviation and maritime emissions each account for about 2% of annual carbon dioxide (CO2) emissions, and these are rapidly growing.62 Attributing these emissions (often referred to as ‘bunker emissions’) to a particular country is difficult. For this reason, the Kyoto Protocol does not include bunker emissions in its national emissions targets. Instead, it directs Annex I parties to address emissions from international transport through the relevant specialized agencies: IMO in the case of maritime transport, and ICAO in the case of civil aviation.63

1.  International Maritime Organization

A 2014 IMO study64 estimated that international maritime shipping accounts for CO2 emissions of about 900 million tons.65 Although this is a relatively small fraction (2.7%) of total global GHG emissions, maritime emissions are expected to double or even triple by mid-century in the absence of mitigation policies.66

In 2011, the parties to MARPOL 73/78—the IMO agreement regulating pollution from ships—adopted an amendment to Annex VI (addressing air pollution) on energy efficiency for ships.67 The amendment:

  • •  Requires new ships to meet an energy efficiency design index (EEDI), which specifies CO2 emission limits per capacity mile for different types and sizes of vessels.

  • •  Requires all ships to adopt and implement a ship-specific energy efficiency management plan.

(p. 269) A big question in the development of the Annex VI amendments was whether and how the principle of CBDRRC would apply. Essentially, states took three positions. Some developed states, including the US, argued that the principle of CBDRRC does not apply to IMO’s work on GHG emissions, especially in light of IMO’s non-discrimination and no-more-favourable-treatment principles. In contrast, China and India argued that CBDRRC applies, and that it requires that the obligations of developed and developing countries to limit maritime emissions be differentiated along the lines of the Kyoto Protocol, trumping IMO’s non-discrimination principle.68 In the middle, the IMO secretariat argued that even if CBDRRC is relevant to IMO’s work on GHG emissions, it does not conflict with IMO’s principle of non-discrimination, since non-discrimination applies to ships, whereas CBDRRC applies to countries.69

Ultimately, developed countries succeeded in reflecting the ‘no more favourable treatment’ principle in the MARPOL Annex VI amendment. The amendment does not differentiate between vessels flagged, owned, or operated in developed versus developing countries; instead, its regulations apply equally to all vessels.70 As a result, the amendment was opposed by China, Brazil, and Saudi Arabia. Nevertheless, it was eventually approved by a vote of 49-5 (with 2 abstentions), pursuant to MARPOL Article 16, which allows annexes to be amended by a two-thirds majority of the parties.71 The amendment entered into force on 1 January 2013.

The MARPOL Annex VI amendment is significant in several ways. First, it establishes the first mandatory emission standards for a sector. Second, its requirements apply uniformly, with no differentiation between ships flagged in developed and developing countries.72 Instead, the amendment addresses the issue of differentiation through the inclusion of a provision to promote technical co-operation and assistance for developing countries. Third, the amendment’s adoption by a majority vote represents the first time that a decision relating to climate change has been taken over the objection of a significant group of countries.

(p. 270) MARPOL allows countries that voted against the Annex VI amendment to opt out of the new requirements. In the end, although five countries voted against the amendment, only Brazil lodged a formal reservation.73 Nevertheless, its flag vessels will still need to meet the new standards if they wish to call on the ports of states that accepted the amendment. Moreover, shipbuilders are likely to comply with the new standards for all new vessels, regardless of where a ship is expected to be flagged, since failure to comply with the standards will lower the potential resale value of the ship. For these reasons, the new MARPOL standards are likely to be applied universally, despite Brazil’s reservation.

The vote to adopt the Annex VI amendments in 2011 did not resolve the differences regarding CBDRRC. A solution was finally reached two years later, through the adoption of an IMO resolution with preambular language that took ‘cognizance’ of the IMO principles of non-discrimination and no-more-favorable treatment as well as the FCCC principle of CBDRRC, without specifying their applicability to MARPOL.74 The resolution also established an ad hoc expert working group on facilitation of transfer of technology for ships, to identify developing country technology needs as well as barriers to technology transfer.

IMO’s work on maritime emissions is ongoing and one option still under consideration is the development of a market-based mechanism for international shipping. However, the focus of IMO’s recent work has been on data collection and analysis, including new requirements for the collection and reporting of data on fuel consumption.75

2.  International Civil Aviation Organization

In many respects, civil aviation is similar to maritime shipping:

  • •  Civil aviation is a highly international industry, making a global sectoral approach appropriate.

  • •  Currently, emissions from international civil aviation are relatively low, accounting for only about 1.3% of global CO2 emissions.76 But aviation emissions are growing rapidly, and are projected to increase by four- to six-fold by 2050 in the absence of new policies, despite continued improvements in efficiency.77

  • (p. 271) •  Emissions from civil aviation could be reduced significantly using existing technologies—for example, through the use of new lightweight materials and more efficient engines to increase the fuel efficiency of aircraft, by substituting lower-carbon fuels for existing sources, and, to a lesser extent, by operating aircraft in ways that use less fuel. According to one estimate, these measures could together reduce emissions from civil aviation by 50% by 2050 as compared to business-as-usual projections.78 While this would represent a significant improvement compared to the no-policy case, aviation emissions would still double by 2050, given the expected quadrupling of air travel.

ICAO is the UN specialized agency responsible for governance of international civil aviation. Established in 1944 by the Convention on International Civil Aviation79 (often referred to as the Chicago Convention), ICAO develops policies, standards and guidance in the field of international civil aviation. Within ICAO, the Committee on Aviation Environmental Protection (CAEP) has principal responsibility for environmental matters.

In October 2010, the ICAO Assembly adopted a consolidated resolution on climate change, setting global goals of (1) improving average fuel efficiency by 2% annually, and (2) achieving carbon-neutral growth starting in 2020 (in effect, stabilizing global CO2 emissions at 2020 levels).80 The resolution made international aviation the first sector to adopt global emissions goals, although the resolution characterized the goals as ‘aspirational’ and the contributions of states to achieving the goals as ‘voluntary’, and specifically noted that the 2% fuel efficiency goal and the 2020 stabilization goal do not ‘attribute specific obligations to individual states’.81 States also agreed to develop a global CO2 efficiency standard for aircraft, analogous to the EEDI standard developed by IMO for new ships.

Like IMO, ICAO decisions can be made by a qualified majority vote. As a result, the ICAO Assembly was able to adopt its 2010 resolution despite opposition by China, India and Brazil. A number of countries entered reservations to particular aspects of the Assembly resolution, including China, which objected to the inclusion of developing country emissions in the 2020 stabilization goal; the EU, which criticized the 2020 goal as too weak;82 and the US, which objected to language suggesting that developing countries might have lesser requirements.

A complicating factor in the ICAO discussions was the unilateral decision by the EU in 2012 to extend the scope of its emissions trading system (EU-ETS) to (p. 272) emissions from all flights that land in or depart from EU member states.83 The threat of unilateral action by the EU both politicized the climate change issue within ICAO and served as an important driver of ICAO action. US airlines filed suit in British courts to enjoin implementation of the EU directive, on the ground that the directive violated customary international law by regulating emissions outside the EU’s airspace; violated Article 2.2 of the Kyoto Protocol, which directs Annex I states to address international aviation emissions through ICAO; and violated the Chicago Convention through its imposition of additional charges. The case was transferred to the European Court of Justice (ECJ), which upheld the EU directive in 2011.84 Nevertheless, in response to strong and concerted pressure from China, India, and the US,85 among others, the EU agreed to suspend the directive temporarily, in order to allow progress to be made in ICAO to develop a global market-based measure to limit emissions from civil aviation.86

Following suspension of the EU directive, work within ICAO to find a multilateral solution to aviation emissions proceeded with greater urgency. ICAO’s work focused on two approaches: aircraft efficiency standards and a market-based measure (MBM).87 In February 2016, the CAEP preliminarily approved a CO2 performance standard for new aircraft, which will be phased in between 2020 and 2028, starting with new models and eventually applying to all models currently being produced. Then, in October 2016, as part of a basket of measures, ICAO adopted the first global market-based measure for an entire sector, the Carbon Offset and Reduction Scheme for International Aviation (CORSIA), which is intended to implement ICAO’s goal of carbon neutral growth from 2020 and is projected to offset an estimated 2.5 billion tons of aviation emissions over the fifteen years of the program.88

CORSIA will require covered airlines to offset emissions above 2020 levels through purchases of emission reduction credits from outside the aviation sector (for example, REDD+ and the Paris Agreement’s new market mechanism). It will (p. 273) start with a pilot and first phase, running from 2021–23 and 2023–26, respectively, in which participation will be voluntary. These will be followed by a second phase, beginning in 2027, in which all states are expected to participate, except those in exempt categories, including least developed countries, small island states, and those with aviation activity below a set threshold. Overall, the scheme is expected to cover about three-quarters of anticipated emissions growth. A key issue in the negotiation of CORSIA was whether airlines’ offset requirements would be based on their individual emissions growth (which would put the heaviest burden on fast-growing airlines in developing countries), or the sector’s total growth (which would make established, slower-growing airlines responsible for offsetting global growth based on their proportionate share of overall aviation activity). CORSIA adopts a ‘dynamic approach’, under which airlines’ offset requirements will initially be tied to global emissions growth, but will over time shift to their individual growth.

As in IMO, there was considerable debate in ICAO about the degree to which CORSIA would differentiate among states. CORSIA does not establish different offsetting requirements for different categories of states, as a few developing countries had sought. But it does reflect differentiation in a number of other ways, including by making participation voluntary in the pilot and first phases, exempting LDCs and small island states, providing for capacity-building, and requiring established airlines to share some of the burden of offsetting emissions growth by fast-growing airlines in developing countries. In order to reflect ICAO’s principle of non-discrimination, its offsetting requirements do not apply to routes serviced by airlines of exempt countries.

B.  Ozone-depleting substances

The depletion of the ozone layer predated climate change as a matter of international concern, and the international ozone regime89 influenced the design of the FCCC.90 Although ODS are potent GHGs,91 they are not addressed under the FCCC regime.92 Instead, the climate regime has deferred to the Montreal Protocol, which provides for the reduction and phase-out of a wide range of ODS, including carbon tetrachloride, methyl chloroform, HCFCs, and methyl bromide.93

(p. 274) The Montreal Protocol’s reductions in ODS have yielded a significant climate benefit.94 Initially, these climate benefits were simply a by-product of the effort to protect the ozone layer, but, in 2007, the Montreal Protocol parties first explicitly included climate considerations in their decision-making, when they agreed to accelerate the phase-out schedule for HCFCs by ten years—from 2030 to 2020 for ‘Article 2 parties’ (in effect, developed countries) and from 2040 to 2030 for ‘Article 5 parties’ (ie developing countries with per capita consumption of ODS below a set threshold).95 The HCFC decision is projected to result in a reduction of emissions of twenty-five GtCO2e between 2010 and 2050—a net contribution to climate change mitigation ‘far larger’, according to one study, than the reduction from the Kyoto Protocol’s first commitment period targets.96

Following the adoption of the HCFC decision, attention turned to HFCs, which the Montreal Protocol has indirectly encouraged as non-ozone-depleting substitutes for HCFCs. Although HFCs do not deplete the ozone layer, they are extremely potent GHGs—depending on the gas, as much as 10,800 times more powerful per molecule than CO2 over a 100-year time horizon97—and are included in the basket of six gases regulated by the Kyoto Protocol. So, in encouraging HFCs, the Montreal Protocol has worked at cross-purposes to the UN climate regime. HFCs today account for only about 2% of global GHG emissions,98 but this figure is projected to grow rapidly, due to increased demand for air conditioning and refrigeration, particularly in developing countries. According to one estimate, by mid-century, HFCs will contribute the equivalent of 5.5–8.8 Gt of CO2 per year (roughly comparable to total US GHG emissions today) and will account for 9–19% of global GHG emissions,99 although there is considerable uncertainty about these figures, and the IPCC’s representative concentration pathways have ‘substantially lower projected growth’.100

Initially, some countries questioned regulating HFCs under the Montreal Protocol, because they are not ozone-depleting substances. But, in November 2015, the Montreal Protocol parties agreed to the Dubai Pathway, which initiated (p. 275) negotiations to phase down the production and use of HFCs.101 The negotiations concluded the following October at the Kigali conference.

The Montreal Protocol provides two procedures for revisions: first, an amendment procedure to add new chemicals to the protocol’s regulatory regime, which requires ratification by two thirds of the protocol parties and binds only those states that ratify,102 and, second, an ‘adjustment’ procedure to increase the stringency of controls on substances that the protocol already regulates, which applies to all parties and requires only a two-thirds vote, representing a majority of both Article 5 parties and non-Article 5 parties.103 The 2007 decision to accelerate the phase-out schedule for HCFCs took the form of an adjustment. In contrast, the Kigali decision to phase down HFCs took the form of an amendment, since the Montreal Protocol does not currently regulate HFCs, and the amendment will apply only to states that give their affirmative consent.

The Kigali Amendment, adopted in October 2016, establishes a detailed schedule to phase down the production and use of HFCs.104 It requires most ‘Article 2 parties’ to begin reducing production and use of HFCs in 2019 and to reduce by 85% relative to 2011–13 levels by 2036.105 It also commits most ‘Article 5 parties’ to a freeze in 2024 and a phase-down schedule leading to 80% reductions by 2045 relative to 2020–22 levels. A small number of Article 5 countries, including India, Pakistan, and the Gulf states, will have an additional four years in which to get started, and have a different baseline. The amendment envisages trade measures against non-parties by 2030. The amendment also provides for periodic reviews of technology development every five years, in order to consider whether to strengthen the ambition of the reduction schedule. A group of donor countries agreed to provide $80 million to support developing countries in taking early action. The reductions, when fully implemented, will avoid an estimated eighty billion tons of CO2 equivalent emissions by 2050, and could avoid up to 0.5° C of warming by the end of the century.106

C.  Black carbon and other short-lived climate forcers

Black carbon is a carbonaceous aerosol that is a major component of soot. The biggest single source of black carbon globally is biomass burning in agriculture and forestry, which accounts for about 40% of total emissions. Although black carbon (p. 276) is not a GHG, it contributes to global warming by directly absorbing visible sunlight, darkening snow, and influencing cloud formation. According to some studies, black carbon is the second biggest contributor to global warming after CO2.107 But there is still no scientific consensus concerning its quantitative contribution to climate change.108

In contrast to CO2 and other GHGs, which stay in the atmosphere for decades or centuries, black carbon has a short atmospheric lifetime, ranging from days to weeks, and is often referred to as a ‘short-lived climate forcer’ (SLCF). Other SLCFs include tropospheric ozone, methane, and some HFCs (the latter two of which are regulated under the Kyoto Protocol).

The short atmospheric lifetime of black carbon has several important consequences. First, reducing emissions has an immediate effect on concentration levels and hence on temperature. Controlling black carbon could thus play a crucial role in slowing global warming in the near term. Second, black carbon is not well-mixed in the atmosphere, so its effects are largely regional. The climate effects are particularly intense in snow-covered areas, where deposition of black carbon darkens snow and ice, increasing their absorption of sunlight and hence making them melt more rapidly. As a result, in addressing black carbon emissions, what matters is not just the total amount of the reductions, but also where the reductions occur. Reductions would be particularly beneficial in areas where the emissions are deposited in ice-covered areas such as the Arctic, and could potentially reduce warming of the Arctic by about two-thirds over the next thirty years.109

Because black carbon has largely regional impacts, proposals to regulate black carbon have focused on the LRTAP Convention, a regional agreement covering Europe, Russia and North America, which includes all of the Arctic circumpolar countries.110 Adopted in 1979 under the auspices of the UN Economic Commission for Europe (UNECE), the LRTAP Convention now has seven protocols addressing different types of pollutants, including sulphur dioxide, nitrogen oxides, volatile organic compounds, ammonia, heavy metals, and persistent organic pollutants, as well as the 1999 Gothenburg Protocol, which adopts a multi-pollutant, multi-effect approach.

In 2009, the LRTAP Convention Executive Body created an ad hoc expert group on black carbon under the Gothenburg Protocol, which issued its report in 2010, recommending amendment of the protocol. In 2012, the twenty-five Gothenburg (p. 277) Protocol parties adopted (1) an amendment111 that adds fine particulate matter as a regulated pollutant and specifically identifies black carbon as a component of fine particulate matter, and (2) a guidance document on reporting of black carbon emissions. When the amendment comes into force, it will require parties to reduce their emissions of fine particulate matter by 22% from 2005 levels by 2020. However, these requirements will apply only to the protocol parties, a group that does not include China, India, or any other developing country.

In parallel with the LRTAP Convention, the US and six partners established the Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants (CCAC) in 2012. CCAC is administered by the United Nations Environment Programme (UNEP) and is open to membership by states, international organizations, and non-state actors (including sub-state initiatives like the C-40 cities coalition, civil society groups, scientific organizations, and business). As of August 2016, fifty states, sixteen international organizations, and forty-five non-state actors had become CCAC partners. In joining CCAC, states commit to controlling and reducing their emissions of SLCFs. In addition, CCAC has undertaken several sectoral initiatives.112

Finally, the Arctic Council has also begun to consider the problem of black carbon. The Arctic Council was established in 1996 as a high-level intergovernmental forum.113 Its permanent participants include not only the eight Arctic states, but also representatives of Arctic indigenous peoples. In 2009, the Arctic Council established a Task Force on Short-Lived Climate Forcers, which issued a report in 2013 recommending measures to reduce emissions of black carbon and methane. The Arctic Contaminants Action Program also has a variety of projects relating to black carbon and is working to complete a black carbon emissions inventory in 2017.

D.  UN Security Council

The impacts of climate change—including sea-level rise, droughts, floods, extreme weather events, and migration flows—could cause instability and conflict and thus have significant security implications.114 The Security Council has responsibility under Chapter VII of the UN Charter for addressing threats to international peace and security. The issue of climate change was first brought before the Security Council in 2007 by the United Kingdom, and was raised again in 2011 (by Germany) and 2013 (by Pakistan). China, Russia, and most developing countries have questioned the link between climate change and international security, and argue that climate change should be considered by the FCCC and the General (p. 278) Assembly, not the Security Council. The Security Council debate in 2007 led to a UN General Assembly Resolution115 and a Report by the Secretary-General.116 Following the 2011 Security Council debate, the Council president issued a statement expressing the Council’s concern that climate change may, ‘in the long run, aggravate certain existing threats to international peace and security’ and that the loss of territory by small island states resulting from sea-level rise could have security implications.117

E.  Informal political forums

Climate change is addressed not only in regulatory institutions such as IMO and ICAO, but also in various informal political forums—some focused specifically on climate change, such as the Major Economies Forum on Energy and Climate (MEF), and others with a more general remit, in which climate change is only one of many agenda items. These forums involve smaller groups of countries and are sometimes described as ‘clubs’,118 although few are ‘clubs’ in the strict economic sense, that is, groups that exclude others in order to provide private benefits.119 Although supporters of the ‘starting small’ strategy argue that it could produce stronger collective action and greater emission reductions, empirical studies suggest that, thus far, climate clubs have served primarily as ‘forums for political dialogue’ and ‘have achieved very little in terms of actual emissions reductions’.120

1.  Major Economies Forum on Energy and Climate

The MEF is a ‘minilateral’121 forum intended to complement the FCCC negotiations by allowing more informal discussions among the major developed and developing countries. The seventeen countries that comprise the MEF122 account for more than 80% of global GHGs,123 so an agreement among them could largely address the climate change problem.

(p. 279) The MEF is the successor to the Major Economies Meeting on Energy Security and Climate Change (MEM), launched by US President George W. Bush in 2007, which emerged from a felt need among developed countries (and, in particular, the US) for the ‘major emitters’ to have an opportunity to address climate change and energy issues, shorn of the shackles of the seemingly cumbersome UN process and the constraints of the Kyoto negotiations (that included neither large developing countries like China and India, which did not have mitigation targets, nor the US, which had rejected it). At the time, the US opposed the negotiation of any new UN climate change instrument, and many feared that the MEM was an attempt by the US to bypass the UN climate regime. The Obama Administration re-launched the MEM as the MEF in order to dispel these fears. The MEF is explicitly intended to complement rather than displace the FCCC process, by providing political leadership and direction to the UN climate regime. Since its inception, the MEF has met several times a year and has provided an opportunity for senior officials from key countries to meet informally, without the distractions that often accompany the annual climate conferences, in order to better understand each other’s views. Although it has helped incubate ideas, the MEF has been hampered in its efforts to broker deals among major emitters by the fact that most developing countries prefer to negotiate in the FCCC process, where they feel a greater sense of empowerment and ownership.

2.  G-8/G-20

Several ‘G’ clubs also provide political direction to the climate regime. These ‘G’ clubs are informal meetings generally held at the leaders or ministerial level. They are distinguishable from negotiating coalitions and groups124 in that have formal membership, rotating presidencies, and mandates covering a broader universe than climate change. These ‘G’ clubs forge policy statements, but they do not develop common negotiating positions.

The G-8 is the oldest G club, and comprises the eight largest developed country economies,125 which account for roughly half of global GDP and a third of global GHG emissions. Beginning in 1990, G-8 leaders have regularly included language on climate change in their communiqués,126 and have had a separate agenda item on climate change since 2003. At the 2005 Gleneagles Summit, G-8 leaders adopted a ‘plan of action’ on climate change, clean energy, and sustainable development and established a dialogue to monitor implementation.127 But, generally, G-8 meetings have served as a forum for leaders to provide political guidance for the FCCC process. For example, in 2009, during the run-up to the Copenhagen (p. 280) conference, the G-8 leaders adopted goals of limiting global warming to no more than 2° C and reducing global emissions by 50% (and their emissions by 80%) by 2050.128 The 2° C goal was endorsed in the 2009 Copenhagen Accord and formally adopted into the FCCC process in the 2010 Cancun Agreements, but the 50% emissions reduction by 2050 goal proved too controversial to be adopted by the UN climate regime. The G-8 has since 2005 also invited the leaders of the five largest developing countries in a G-8+5 formation for separate sessions.129

The G-20 is a parallel club involving both developed and developing countries. It was established in 1999, in the aftermath of the 1997 financial crisis, to address economic issues. Originally a meeting of finance ministers, the G-20 became a leaders’ summit in 2008. G-20 members represent 90% of global GDP and account for 84% of fossil fuel emissions. Although the mandate of the G-20 focuses on promoting economic growth, the G-20 has recently begun to include climate change on its agenda. But progress in the G-20 on climate change has been modest compared to that in the G-8.130 The 2009 G-20 meeting called for the phase out over the medium term of ‘inefficient’ fossil fuel subsidies,131 and the 2015 meeting characterized climate change as ‘one of the greatest challenges of our time’.132

3.  Bilateral initiatives

In addition to plurilateral forums, bilateral climate cooperation between countries has also played a critical role in reaching a climate deal and shaping its contours, and will likely play a role in implementing it. The US and the EU, in particular, and the French in the lead up to the Paris conference, proactively sought out bilateral relationships and understandings with China, India and Brazil, among others.133 These served as parallel frameworks for dialogue in support of the formal FCCC process. For instance, the political breakthrough in the Paris Agreement on (p. 281) the principle of CBDRRC, reflected in the addition of the phrase ‘in light of different national circumstances’, emerged out of a US-China statement in 2014.134 In addition, such bilateral cooperation between key countries helped structure and channel initiatives and projects, as for instance on technology between India and the US.135

V.  Sub-National Climate Governance

Although climate change is a quintessentially global problem that requires a global solution, local and regional institutions also play important roles in climate governance. Climate change implicates many policies that have traditionally been addressed at the regional and local levels, such as land-use planning, transportation, and waste management. An Australian study found that local authorities ‘have a degree of influence over half of all GHG emissions’,136 and the International Energy Agency estimates that cities account for more than 70% of global CO2 emissions.137 So local and regional governmental policies can have a tremendous effect on the climate change problem, for better or worse. A city can invest in mass transit and thereby reduce reliance on cars, for example, or it can adopt zoning rules that encourage urban sprawl. It can adopt building codes that encourage energy efficiency, waste management practices that minimize methane emissions from landfills, and coastal zone management laws that require developers to consider sea level rise, or it can continue business as usual.

Not only do local governments have authority over many aspects of the climate change problem, agreement is often easier to achieve at the local level, where people’s values and interests are more homogeneous than at the national or international levels. In the US, for example, many cities and states have been able to adopt ambitious climate change policies, even while climate policy at the national level remains gridlocked. Under the Mayors’ Climate Protection Agreement, for example, the mayors of more than one thousand US cities, with a total population of nearly ninety million people, pledged to meet or beat the Kyoto Protocol’s emissions target in their communities.138 Similarly, California has enacted an ambitious emissions trading program,139 even though similar proposals in Congress failed to be adopted. As of 2016, more than twenty cities, states and regions around the world (p. 282) had adopted carbon pricing instruments such as an emissions trading program or a carbon tax, with those in China covering the largest volume of emissions (approximately 1 GtCO2e), through pilot emissions trading systems in seven cities.140

Provinces and localities not only contribute to climate change; they are also affected by it. Climate change will have significant impacts on cities, for example, through heatwaves, flooding, and reductions in water supply. As an OECD study observes, ‘[t]he fate of the Earth’s climate and the vulnerability of human society to climate change are intrinsically linked to the way the cities develop over the coming decades and century’.141

The vertical relationships between local and national climate change policies can be top-down, bottom-up, or hybrid. In a highly centralized state such as France, the national climate change program includes a variety of local policies, which are imposed from the top-down. In implementing these policies, local governments act essentially as agents of the national government. Top-down policies can also circumscribe local and regional governments—for example, by imposing uniform national standards or pre-empting local action. In such cases, national policies represent a ceiling rather than a floor.142

In bottom-up systems, by contrast, local and regional authorities have significant autonomy to develop their own climate change policies, which may percolate up to the national level. In the US, for example, the federal government granted a waiver that allowed California to develop its own emissions standards for automobiles, which require a 34% reduction in GHG emissions by new cars by 2025.143

The vertical relationship between local and national authorities can also have a hybrid form. Rather than either imposing national standards or taking a totally hands-off approach, the national government may promote local action from the top-down through financial assistance, but still leave local governments with significant autonomy to develop their own climate policies from the bottom-up.

Ordinarily, local governance is not directly relevant to international law. International law regulates the behavior of states, not sub-national actors such as provinces or cities. As a result, even though much governance takes place at the local level, local institutions typically have little interaction with international institutions. To the extent international norms filter down to the local level, it is only through the mediation of national law.

Although climate change is no exception to this general rule, it is unusual in that local policies to address climate change are not purely local; they are linked (p. 283) transnationally with local policies in other countries in order to share information and promote common values.144 The C40 Cities Climate Leadership Group, for example, is a network of more than eighty megacities, which represent 600 million people and more than 25% of the global economy.145 It was preceded by the ICLEI Cities for Climate Protection Program, which included more than 1000 cities from around the world.146 Similarly, sub-national jurisdictions that have adopted emissions trading programs have, in some cases, linked up with one another to create transnational carbon markets.147 An example is the linkage of the California and Quebec emissions trading systems that began in 2014. These sub-national groupings represent an alternative method to international law to achieve policy integration.

VI.  Judicial Governance

Traditionally, courts and tribunals have played a comparatively modest role in the development and implementation of international environmental law.148 Although most multilateral environmental agreements (MEAs)—including the FCCC—provide for some system of dispute settlement, few cases have been brought either internationally149 or domestically150 to interpret or enforce these agreements, and the same is true for customary international law. Instead, political institutions have (p. 284) been the dominant players in the international environmental law process: inter-governmental negotiations and legislatures in the development of norms, and the executive branch in their application.

Recently, this situation has begun to change, both in international environmental law generally and, more particularly, in the area of climate change law.151 A growing number of climate change cases have been initiated both internationally and domestically, reflecting a greater role by courts and tribunals in climate change governance:152

Adjudication relating to climate change varies along several dimensions, including its function, the source of law involved, and the tribunal that hears the case. The following sections consider each of these issues.

A.  Functions of litigation

Climate change litigation can serve several potentially overlapping functions. Some cases seek to limit GHG emissions, for example, by compelling legislative or regulatory action.161 The World Heritage Committee petitions, for example, sought an opinion that the World Heritage Convention obligates states parties to reduce their emissions in order to protect world heritage sites threatened by climate change, such as the Great Barrier Reef. Until recently, both international and domestic tribunals were reluctant to find that international law requires governments to reduce national emissions, given the far-reaching political implications such a ruling would have. In the case involving the Great Barrier Reef, the World Heritage Committee found that the issue of emissions mitigation was being addressed in the (p. 286) UN climate regime, and instead focused on the problem of adapting world heritage sites to the impacts of climate change.162 Similarly, in the Canadian case brought by Friends of the Earth, the court found that the issue of whether Canada had violated the Kyoto Protocol was a political question, and concluded that it had ‘no role to play reviewing the reasonableness of the government’s response to Canada’s Kyoto commitments’.163 However, a number of national cases have held that the government can or must take into account climate change in its regulatory and administrative decision-making. For example, the plaintiffs were successful in Massachusetts v EPA in arguing that US federal law allows the Environmental Protection Agency to regulate GHG emissions, since this outcome left decisions about emissions mitigation in the hands of EPA rather than the courts. Cases involving permitting decisions by the government have also had some success, since they concern the legality of particular projects under existing national law, rather than requiring the courts to make broad, politically-charged rulings about international duties to reduce emissions. New Zealand courts, for example, have held that the government must consider, in deciding whether to permit the construction of wind farms and coal-fired power plants, the effect of a proposed project on GHG emissions.164 Australian courts have also held that permitting decisions regarding power plants must take into account the effects on GHG emissions.165

More recently, several courts have gone even further and have directly ordered the government to take stronger climate action. In the Urgenda Case, described above, a Dutch court ordered the government to adopt a stronger emissions reduction target.166 And in the Leghari Case, also described above, Pakistan’s Lahore High Court ordered the establishment of a commission to oversee implementation of the government’s adaptation plan.167

Another category of cases involves tort claims for climate change damages. Although such claims can have a deterrent effect on future emissions, their immediate goal is to provide compensation to the victims.168 One of the main barriers to such cases is the problem of defining climate change damages and attributing them to particular actors.169 At present, the most that science can say is that climate (p. 287) change increases the likelihood or intensity of a particular kind of event, like a heat wave or storm, not that climate change is the ‘but for’ cause.170

Finally, even if unsuccessful, climate change litigation can help raise public awareness.171 By focusing on particular victims and particular impacts, litigation helps give climate change damages a human face. As David Hunter notes, the Inuit petition ‘tells a story about the impacts of climate change in human terms far removed from the antiseptic discussion[s] of GHG concentrations or global mean temperatures that have traditionally predominated international climate negotiations’.172 Similarly, petitions to the World Bank Inspection Panel cannot compel a project to be stopped. But, by focusing attention on the harms caused by the project, a petition can help mobilize public opposition and thereby influence decisions about whether to allow or modify the project.

B.  Source of law

Climate change litigation also varies depending on the source of law involved. A few cases have alleged violations of international law. For example, the Friends of the Earth Case in Canada alleged violations of the FCCC and the Kyoto Protocol. The proposal by Palau to request an advisory opinion from the ICJ would have explicitly focused on the responsibility of states under international law. Similarly, the Inuit petition alleged violations of international human rights law, the World Heritage petitions concerned putative duties to mitigate emissions under the World Heritage Convention, and a Nigerian decision on natural gas flaring by oil companies found that flaring violated the human rights of the local population, not only under the Nigerian constitution, but also under the African Charter on Human and Peoples’ Rights.173

In some cases, national courts have employed international norms for interpretive purposes. In Leghari, for example, the Lahore High Court looked to the principles of sustainable development, precaution, and inter-generational equity in finding that the Pakistani government violated the fundamental rights of its citizens by failing to implement its climate change adaptation policy. Similarly, in Urgenda, the Dutch court looked to international norms such as the 2° C temperature limit in finding that the government had breached its duty of care by failing to take stronger mitigation measures.174

(p. 288) Many of the cases to date, however, have involved national rather than international law. The cases brought in US courts, for example, have concerned the Clean Air Act,175 the National Environmental Policy Act,176 public nuisance law,177 and the Endangered Species Act.178 A German case requiring disclosure of the climate change impacts of projects supported by the German export credit agency was decided on the basis of the German Access to Environmental Information Act.179 And New Zealand and Australian cases concerning power plant permits involved the Resource Management Act of 1991 in the New Zealand cases, and the Victorian Planning and Environment Act in the Australian case.180 In most instances, national laws such as these establish more precise obligations than international agreements such as the FCCC or the World Heritage Convention, and thus provide a stronger basis for judicial governance.

C.  Forum

A third variable in climate change litigation is the forum where a case is brought. In addition to national courts, possibilities at the international level include:181

However, although international cases like the Inuit petition have attracted a great deal of attention, they have not been successful thus far, except as a means of raising public awareness. Given the weaknesses of international dispute settlement procedures—in particular, the lack in most cases of compulsory jurisdiction or enforcement authority—international adjudication is unlikely to provide effective relief, either in reducing emissions or compensating victims.190 Even if small island states succeeded, for example, in obtaining an advisory opinion from the ICJ that states have a responsibility to reduce emissions, this would at best put pressure on states in the FCCC to reach a stronger agreement, rather than directly cause them to reduce their emissions.

Litigation in national courts, by contrast, has had somewhat greater success, particularly in challenging particular government decisions, such as approving permits to construct power plants or providing export credits for energy projects in other countries. As noted earlier, generally these cases have been based on domestic law, although a few domestic courts have based their decisions, in part, on international norms.

(p. 290) D.  Assessment

It is still too early to tell how significant judicial governance will be. Cases such as Urgenda and Leghari suggest that national courts are more willing to play a significant role in overseeing national climate change policy. But the Inuit and World Heritage Cases internationally, and the Friends of the Earth Case in Canada, suggest that there may be limits to the role of litigation in addressing climate change. As even supporters of climate change litigation admit, litigation is a second-best option; ‘an international regime that involves all states and that provides for the action that science tells us is needed to avert dangerous climate change would be the preferred approach’.191

VII.  Polycentric Governance of the Carbon Market

Over the past decade, the global carbon market has grown significantly.192 Emissions trading systems have now been adopted at virtually every level of governance—at the global level by the Kyoto Protocol; at the regional level by the EU; at the national level by countries like Kazakhstan, New Zealand, South Korea, and Switzerland; and at the subnational level by individual states and provinces like British Columbia, California, Ontario, Quebec, Saitma, and Tokyo, as well as regional groupings such as the Regional Greenhouse Gas Initiative (RGGI).193 As of 2015, thirty-nine countries and twenty-three subnational jurisdictions either had implemented or were scheduled to implement carbon pricing instruments. Although the international carbon markets created in connection with the UN climate regime are the largest (in particular, the Clean Development Mechanism (CDM)), the World Bank estimates that national, regional, and local carbon pricing initiatives cover about 13% of global GHG emissions.194

Linkage of existing or emerging regional, national and sub-national emissions trading systems can produce a number of benefits, including, in particular, greater cost-effectiveness. But given the considerable differences in the design of emissions trading systems—for example, in terms of the economic sectors and GHGs covered, the time frames, and the methods for allocating allowances—linkage generally requires, at a minimum, the development of common rules on issues such as (p. 291) accounting; measurement, reporting and verification (MRV); allowance tracking; and carbon offsets.195 In the absence of a global regime, linkages are beginning to develop in a decentralized, bottom-up manner, through the negotiation of agreements between jurisdictions with emissions trading systems, under which each jurisdiction recognizes the emissions allowances of the others.196 In 2014, California and Quebec officially linked their programs and held a shared auction, and a number of other linkages between national and sub-national programs are planned. Heterogeneity among carbon pricing instruments makes linkage more complex, but not impossible.197

Compared to the embryonic state of linkages among emissions trading systems, the rules regarding carbon credits reflect a higher degree of order. A multiplicity of transnational carbon standards have been developed to certify credits for GHG emissions reduction projects, including both public standards, like the rules developed by the Kyoto Protocol’s CDM,198 and thirty privately developed standards, including the Verified Carbon Standard, the GHG protocol, and the Gold Standard, which are used in voluntary markets. According to one survey, ‘[e]ach standard has a slightly different focus and none has so far managed to establish itself as the industry standard’.199 Nevertheless, there is ‘surprising evidence of policy convergence’ among standards.200 ‘Although there is an explosion in the number of private standards post-Kyoto, clearly some have emerged as more important—and indeed more credible—than others.’201 The EU-ETS is, at present, the major driver of the carbon credit market, so the standards it applies for credits entering the EU-ETS are extremely influential.202 In addition, the Kyoto Protocol’s standards for carbon credits have a high degree of prestige and have become embedded in private standards, reflecting a degree of concordance among global, regional, national, and privately developed norms, and suggesting that the protocol will have ‘long-term (p. 292) residual effects’, even if it does not continue post 2020.203 More generally, the interconnections in the carbon market between internationally negotiated rules (such as those for the CDM), national and sub-national rules, and private standards suggest a ‘blurring’ of ‘the boundaries between “public” and “private” governance’.204

VIII.  Polycentric Governance and the UN Climate Change Regime

Like most inter-governmental organizations, the UN climate regime has been state-centric. The original General Assembly mandate for the FCCC negotiations recognized the importance of engaging civil society, but saw this as occurring primarily at the national level, through ‘a broad-based preparatory process … involving, as appropriate, the scientific community, industry, trade unions, non-governmental organizations and other interested groups’.205 Although the mandate also invited NGOs ‘to make contributions to the negotiating process’, this was on the ‘understanding that these organizations shall not have any negotiating role’.206

Since then, the FCCC has accredited more than 2000 NGOs and 100 international organizations as observers,207 some of which have played a significant informal role in the FCCC process—for example, by providing information and analysis, making proposals, and lobbying governments. But NGOs have not had a formal role in the negotiations, nor, until recently, has the FCCC regime tried to engage directly with the climate change activities of sub- and non-state actors.

This separation between the UN climate regime and the broader set of actions by non-state actors to address climate change began to change in the four-year process leading to the Paris Agreement. Non-state actors played a significant role in the technical examination process organized under the ADP’s Workstream II, which explored ways of enhancing the ambition of pre-2020 climate actions. The Lima to Paris Action Agenda (LPAA) organized by the Peruvian and French COP presidencies focused on actions by non-state actors to reduce emissions, and established the NAZCA portal to record these actions.208 And the UN Secretary-General’s Climate Summit in 2014 brought together leaders from governments, the private sector, and civil society, and helped catalyze a number of public, private, and joint initiatives to reduce emissions.209

(p. 293) Early in the Paris process, some harbored the hope that the Paris Agreement would explicitly recognize the role of sub- and non-state actors in combating climate change, or might even allow non-state actors to sign.210 But the FCCC process is conservative by nature, and making such a radical departure from the norms of multilateral environmental agreements gained little traction in the negotiations. Instead, the only mention in the Paris Agreement of non-state actors appears in the preamble, which recognizes ‘the importance of the engagements of … various actors … in addressing climate change’.211

However, the COP decision that adopted the Paris Agreement includes a more fulsome section on ‘non-party stakeholders’—a category that includes civil society organizations, the private sector, financial institutions, cities, and other sub-national authorities. The decision welcomes their efforts, invites them to scale these efforts up, and invites them to demonstrate their efforts via the NAZCA portal.212

Going forward, actions by sub- and non-state actors could play several possible roles in relation to the Paris Agreement:

  • •  First, they could play a supportive role, by bolstering the credibility of NDCs and providing political support. For example, the Paris Pledge for Action promises support for implementing the Paris Agreement, and has been signed by more than 600 companies, 180 investors, and 110 cities and regions.213

  • •  Second, actions outside the FCCC could help close the gap between the Paris Agreement’s NDCs and its long-term temperature goal. To do this, however, non-state actors would need to demonstrate that their initiatives are additional to the emission reductions promised in states’ NDCs.

  • •  Third, actions by civil society and the private sector could be catalytic in promoting stronger NDCs in the future through policy innovation, demonstration effects, and political mobilization.

  • •  Finally, polycentric climate governance could help compensate for any future loss of momentum in the UN climate regime.

IX.  Conclusion

Supporters of polycentric governance of the climate change issue argue that tackling discrete dimensions of the issue at multiple levels, by multiple actors, can facilitate targeted, incremental progress. Given the infirmities of inter-state negotiations and uncertainties about the success of any individual negotiating process (the UN climate regime included), diversifying one’s portfolio of policy approaches helps (p. 294) reduce the risk of failure. But better accounting will be needed to assess the efficacy of initiatives by sub- and non-state actors to reduce emissions.214

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Footnotes:

1  This paragraph is drawn from Daniel Bodansky, ‘Multilateral Climate Efforts Beyond the UNFCCC’ (Arlington, VA: Pew Center on Global Climate Change, November 2011) <http://www.c2es.org/publications/multilateral-climate-efforts-beyond-unfccc> accessed 20 January 2017.

2  Kenneth W. Abbott, ‘The Transnational Regime Complex for Climate Change’, Environment and Planning C: Government and Policy, 30/4 (2011): 571; see also Matthew J. Hoffmann, Climate Governance at the Crossroads: Experimenting with a Global Response after Kyoto (Oxford University Press, 2011) (describing climate governance ‘experiments’ by cities, states, regions, citizen groups, and corporations).

3  ‘NAZCA’ stands for the Non-State Actor Zone for Climate Action. It was launched in 2014 by the Peruvian presidency of COP20. For a current listing of NAZCA commitments, see <http://climateaction.unfccc.int> accessed 20 January 2017.

4  United Nations Environment Programme (UNEP), ‘The Emissions Gap Report 2015: A UNEP Synthesis Report’ (Nairobi: UNEP, November 2015).

5  Angel Hsu et al., ‘Towards a New Climate Diplomacy’, Nature Climate Change, 5/6 (2015): 501; see also Jon Hovi et al., ‘Climate Change Mitigation: A Role for Climate Clubs?’, Palgrave Communications (10 May 2016) <http://www.palgrave-journals.com/articles/palcomms201620> accessed 20 January 2017.

6  Daniel C. Esty, ‘Bottom-Up Climate Fix’, The New York Times (21 September 2014).

7  Angel Hsu et al., ‘Track Climate Pledges of Cities and Companies’, Nature, 532/7599 (2016): 303.

8  Abbott, Transnational Regime Complex (n 2); Robert O. Keohane and David G. Victor, ‘The Regime Complex for Climate Change’, Perspectives on Politics, 9/1 (2011): 7.

9  Elinor Ostrom, ‘Polycentric Systems for Coping with Collective Action and Environmental Change’, Global Environmental Change, 20/4 (2010): 550; Hari M. Osofsky, ‘Polycentrism and Climate Change’, in Daniel A. Farber and Marjan Peeters (eds), Encyclopedia of Environmental Law vol 1: Climate Change Law (Cheltenham, UK: Edward Elgar, 2016) 325.

10  Jacqueline Peel, Lee Godden, and Rodney J. Keenan, ‘Climate Change Law in an Era of Multi-Level Governance’, Transnational Environmental Law, 1/2 (2012): 245; see also Harriett Bulkeley et al., Transnational Climate Change Governance (Cambridge University Press, 2014).

11  Harro Van Asselt, Francesco Sindico, and Michael A. Mehling, ‘Global Climate Change and the Fragmentation of International Law’, Law and Policy, 30/4 (2008): 423.

12  Peter Newell, Philipp Pattberg, and Heike Schroeder, ‘Multiactor Governance and the Environment’, Annual Review of Environment and Resources, 37 (2012): 365.

13  International Convention for the Prevention of Pollution from Ships (adopted 2 November 1973) 1340 UNTS 184, amended by Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (adopted 17 February 1978, entered into force 2 October 1983) 1340 UNTS 61 (MARPOL 73/78).

14  The gold standard is a voluntary standard developed by the World Wildlife Fund and other international NGOs in 2003 to determine whether carbon mitigation projects actually reduce greenhouse gas emissions. For discussion of the gold standard, see Chapter 6, Section V.B.2.

15  The CarbonNeutral Protocol was developed by a private company in 2002 to evaluate carbon neutral certification programs. See CarbonNeutral <http://www.carbonneutral.com> accessed 20 January 2017.

16  See generally Ian Bache and Matthew Flinders (eds), Multi-Level Governance (Oxford University Press, 2004).

17  Thijs Etty et al., ‘Transnational Dimensions of Climate Governance’, Transnational Environmental Law, 1/2 (2012): 235.

18  Hari M. Osofsky, ‘Is Climate Change “International”? Litigation’s Diagonal Regulatory Role’, Virginia Journal of International Law, 49/3 (2009): 585.

19  The Compact of Mayors was launched in 2014 by UN Secretary General Ban Ki-moon and former New York City mayor, Michael Bloomberg, who serves as the Secretary-General’s Special Envoy for Cities and Climate Change. It involves the principal cities’ networks, including C40 and Local Governments for Sustainability (which still uses the acronym, ICLEI, originally standing for International Council for Local Environmental Initiatives).

20  On C40, see n 145 below and accompanying text.

21  Kenneth W. Abbott, ‘Strengthening the Transnational Regime Complex for Climate Change’, Transnational Environmental Law, 3/1 (2014): 57, 64–5 (contrasting nested, overlapping and parallel systems of governance).

22  International Law Commission (ILC), ‘Responsibility of States for Internationally Wrongful Acts’ in Report of the International Law Commission on its fifty-third session (23 April–1 June and 2 July–10 August 2001) UN Doc A/56/10, Art 32.

23  United Nations, Charter of the United Nations (24 October 1945) 1 UNTS XVI (UN Charter), Art 103.

25  Daniel C. Esty, ‘Revitalizing Environmental Federalism’, Michigan Law Review, 95/3 (1996): 570.

26  New State Ice Co v Liebmann, 285 US 262, 311 (Brandeis, J., dissenting, 1932) (‘a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country’).

27  David Vogel, ‘Trading Up and Governing Across: Transnational Governance and Environmental Protection’, Journal of European Public Policy, 4/4 (1997): 556.

28  On the influence of national policy on international policy, see generally Elizabeth R. DeSombre, Domestic Sources of International Environmental Policy: Industry, Environmentalists and U.S. Power (Cambridge, MA: MIT Press, 2000).

29  See generally Timo Koivurova and David L. VanderZwaag, ‘The Arctic Council at 10 Years: Retrospect and Prospect’, University of British Columbia Law Review, 40/1 (2007): 121. For more on the Arctic Council, see n 113 below and accompanying text.

30  Convention on Long-Range Transboundary Air Pollution (adopted 13 November 1979, entered into force 16 March 1983) 1302 UNTS 217 (LRTAP Convention).

31  R.A.W. Rhodes, ‘Policy Network Analysis’, in Robert E. Goodin, Michael Moran, and Martin Rein (eds), Oxford Handbook of Public Policy (Oxford University Press, 2006) 1425.

32  On C40, see n 145 below and accompanying text; on the role of cities, see J. Corfee-Morlot et al., Cities, Climate Change and Multilevel Governance (Paris: OECD, 2009) 81–2; Michele M. Betsill and Harriett Bulkeley, ‘Cities and the Multilevel Governance of Climate Change’, Global Governance, 12/2 (2006): 141, 143.

33  World Bank, Subsidies in the Energy Sector: An Overview (Washington, D.C.: World Bank, July 2010). On the trade regime and energy subsidies, see Chapter 9, Section IV.B.5.

34  See generally Kenneth W. Abbott, Philipp Genschel, Duncan Snidal, and Bernhard Zangl (eds), International Organizations as Orchestrators (Cambridge University Press, 2015).

36  For example, networks of cities include the C40 Cities Climate Leadership Group, the World Mayors Council on Climate Change, Cities for Climate Protection, the Large Cities Climate Group, and ICLEI’s Local Governments for Sustainability.

37  Antonio Estella, The EU Principle of Subsidiarity and Its Critique (Oxford University Press, 2003); George A. Berman, ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’, Columbia Law Review, 94/2 (1994): 331.

38  The international rules relating to jurisdiction attempt to avoid horizontal conflicts among states through the rule of territoriality and the correlative limits on extra-territorial jurisdiction.

39  Kyoto Protocol, Art 2.2.

40  Thomas Hale, ‘Design Considerations for a Registry of Sub- and Non-State Actions in the UN Framework Convention on Climate Change’ (University of Oxford: Blavatnik School of Government, 24 February 2014) <http://www.bsg.ox.ac.uk/sites/www.bsg.ox.ac.uk/files/documents/2014-UNFCC-ClimateRegistry-PolicyMemo.pdf> accessed 20 January 2017.

41  VCLT, Art 30 (later-in-time rule). On ways of resolving conflicts, see generally Harro van Asselt, The Fragmentation of Global Climate Governance: Consequences and Management of Regime Interactions (Cheltenham, UK: Edward Elgar, 2014).

42  Kenneth Abbott and Duncan Snidal, ‘The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State’, in Walter Mattli and Ngaire Woods (eds), The Politics of Global Regulation (Princeton University Press, 2009) 44.

43  Verified Carbon Standard <http://www.v-c-s.org> accessed 20 January 2017.

44  On the Gold Standard, see n 14 above.

45  International Organization for Standardization News, ‘New ISO 14064 standards provide tools for assessing and supporting greenhouse gas reduction and emissions trading’ (3 March 2006) <http://www.iso.org/iso/home/news_index/news_archive/news.htm?refid=Ref994> accessed 20 January 2017.

46  CDP: Driving Sustainable Economies <https://www.cdp.net/fr> accessed 20 January 2017. For an assessment, see Daniel C. Matisoff et al., ‘Convergence in Environmental Reporting: Assessing the Carbon Disclosure Project’, Business Strategy and the Environment, 22/5 (2013): 285.

47  REDD+ stands for Reductions in Emissions from Deforestation and Forest Degradation. It was originally proposed by the Coalition of Rainforest Nations in 2005 to incentivize the protection of forests. See generally Christina Voight (ed), Research Handbook on REDD+ and International Law (Cheltenham, UK: Edward Elgar, 2016).

48  See Richard B. Stewart, Michael Oppenheimer, and Bryce Rudyk, ‘Building Blocks for Global Climate Protection’, Stanford Environmental Law Journal, 32/2 (2013): 12.

50  Ibid, 67.

51  The Carbon Disclosure Project is an investor initiative started in 2000 for voluntary reporting of emissions by business. See generally Florence Depoers, Thomas Jeanjean, and Tiphaine Jérôme, ‘Voluntary Disclosure of Greenhouse Gas Emissions: Contrasting the Carbon Disclosure Project and Corporate Reports’, Journal of Business Ethics, 134/3 (2016): 445.

52  Samuel Alexander, Kara Nicholson, and John Wiseman, Fossil Free: The Development and Significance of the Fossil Fuel Divestment Movement (University of Melbourne: Melbourne Sustainable Society Institute, 2014).

53  Julie Ayling and Neil Gunningham, ‘Non-State Governance and Climate Policy: The Fossil Fuel Divestment Movement’, Climate Policy (2015) <http://dx.doi.org/10.1080/14693062.2015.1094729> accessed 20 January 2017.

54  Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’, Regulation and Governance, 2/2 (2008): 137; Benjamin Cashore, ‘Legitimacy and the Privatization of Environmental Governance: How Non-State Market-Driven (NSMD) Governance Systems Gain Rule-Making Authority’, Governance, 15/4 (2002): 503.

55  This section draws on materials from Bodansky, Multilateral Climate Efforts Beyond the UNFCCC (n 1); see also Harro van Asselt, ‘Alongside the UNFCCC: Complementary Venues for Climate Action’ (Arlington, VA: Center for Climate and Energy Solutions, May 2014) <http://www.c2es.org/docUploads/alongside-the-unfccc.pdf> accessed 20 January 2017.

56  On sectoral agreements, see generally Daniel Bodansky, ‘International Sectoral Agreements in a Post-2012 Climate Framework’ (Arlington, VA: Pew Center on Global Climate Change, May 2007) <http://www.c2es.org/docUploads/International%20Sectoral%20Aggreements%20in%20a%20Post-2012%20Climate%20Framework.pdf> accessed 20 January 2017.

57  Kyoto Protocol, Art 2.2.

58  Sebastian Oberthür, Claire Dupont(-roche Kelly), and Yasuko Matsumoto, ‘Managing Policy Contradictions between the Montreal and Kyoto Protocols: The Case of Fluorinated Greenhouse Gases’, in Sebastian Oberthür and Olav Schram Stokke (eds), Managing Institutional Complexity: Regime Interplay and Global Environmental Change (Cambridge, MA: MIT Press, 2011) 115.

59  Harro Van Asselt, ‘Legal and Political Approaches in Interplay Management: Dealing with the Fragmentation of Global Climate Governance’, in Oberthür and Stokke, ibid, 59.

60  For discussion of CBDRRC, see Chapter 1, Section V.C.

61  Sophia Kopela, ‘Climate Change, Regime Interaction, and the Principle of Common But Differentiated Responsibility: The Experience of the International Maritime Organization’, Yearbook of International Environmental Law, 24/1 (2014): 70.

62  International Maritime Organization (IMO), ‘Greenhouse Gas Emissions’ <http://www.imo.org/en/OurWork/environment/pollutionprevention/airpollution/pages/ghg-emissions.aspx> accessed 20 January 2017; International Civil Aviation Organisation (ICAO), ‘Aircraft Engine Emissions’ <http://www.icao.int/environmental-protection/Pages/aircraft-engine-emissions.aspx> accessed 20 January 2017. See generally Alice Bows-Larkin, ‘All Adrift: Aviation, Shipping, and Climate Change Policy’, Climate Policy, 15/6 (2015): 681; FCCC, ‘Emissions from fuel used for international aviation and maritime transport (international bunker fuels)’ <http://unfccc.int/methods/emissions_from_intl_transport/items/1057.php> accessed 20 January 2017.

63  Kyoto Protocol, Art 2.2.

64  This section draws on Daniel Bodansky, ‘The Regulation of Emissions from Ships: The Role of the International Maritime Organization’, in H. Sheiber, N. Olifer, and M. Kwon (eds), Ocean Law Debates: The 50-Year Legacy and Emerging Issues for the Years Ahead (Leiden: Brill, forthcoming 2017).

65  IMO, Third Greenhouse Gas Study (London: IMO, 2014), Table 1. The International Energy Agency estimate of GHG emissions from international shipping is lower—about 1.7% of global GHG emissions—and there is debate about whether the IMO or IEA methodology is more reliable. See David McCollum, Gregory Gould, and David Greene, ‘Greenhouse Gas Emissions from Aviation and Marine Transportation: Mitigation Potential and Policies’ (Arlington, VA: Pew Center on Global Climate Change, December 2009) <http://www.c2es.org/docUploads/aviation-and-marine-report-2009.pdf> accessed 20 January 2017, 6. The 2014 IMO report estimated that of overall GHG emissions from shipping, the vast majority (about 97%) were CO2, mostly in exhaust gas.

66  IMO, ibid, 34.

67  Marine Environment Protection Committee (MEPC), ‘Amendments to MARPOL Annex IV on Regulations for the Prevention of Air Pollution from Ships by Inclusion of New Regulations on Energy Efficiency from Ships’ Resolution MEPC.203(62) (adopted 15 July 2011, entered into force 1 January 2013) IMO Doc. MEPC 62/24/Add.1, Annex 19.

69  IMO, ‘Legal Aspects of the Organization’s Work on GHG Emissions from Ships in the Context of the UNFCCC and the Kyoto Protocol’ (1 April 2011) <http://www.imo.org/OurWork/Environment/PollutionPrevention/AirPollution/Documents/Third%20Intersessional/11-Legal_final.pdf> accessed 20 January 2017.

70  The only concession to developing countries was that parties may waive the new requirements for four years.

71  IMO, Report of the Marine Environment Protection Committee on its sixty-second session (26 July 2011) IMO Doc. MEPC 62/24 (Report of MEPC 62) para 6.110. Brazil, Chile, China, Kuwait, and Saudi Arabia voted against the amendment, and Jamaica and St Vincent and the Grenadines abstained. After the adoption of the amendment, Brazil, China, India, Saudi Arabia, and Venezuela made statements objecting to the vote. ‘Statements by the Delegations of Brazil, China, India, Saudi Arabia and the Bolivarian Republic of Venezuela and the Observers of the Pacific Environment and Clean Shipping Coalition after the Adoption of Amendments to MARPOL Annex VI’, in Report of MEPC 62, IMO Doc. MEPC 62/24/Add.1, Annex 20.

72  Although some countries argued that, by failing to differentiate between developed and developing countries, the Annex VI amendment violates the FCCC, the IMO Legal Office concluded that the principles of the UN climate regime do not limit the outcomes of IMO’s decision-making process. See IMO, Legal Aspects (n 69).

73  IMO, Status of Multilateral Conventions and Instruments in Respect of which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions, as at 10 October 2016 (London: IMO, 2016) 166.

74  IMO, ‘Promotion of Technical Cooperation and Transfer of Technology Relating to the Improvement of Energy Efficiency of Ships’ Res. MEPC.229 (65) (17 May 2013) IMO Doc. MEPC 65/22, Annex 4.

75  IMO provisionally approved new data reporting requirements in 2016. ‘Amendments to MARPOL Annex VI (Data Consumption System for Fuel Oil Consumption)’ Res. MEPC.278(70) (27 October 2016). The requirements are expected to enter into force on 1 March 2018.

76  ICAO, ‘Top 3 Misconceptions about CORSIA’ <http://www.icao.int/environmental-protection/Pages/A39_CORSIA_FAQ6.aspx> accessed 20 January 2017.

77  Gregg Fleming and Urs Ziegler, ‘Environmental Trends in Aviation to 2050’, in ICAO Environmental Report 2013: Aviation and Climate Change (Montreal: ICAO, 2013) 22, 25.

79  Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295.

80  ICAO, ‘Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection – Climate Change’ ICAO Assembly Res A37-19: Resolutions adopted at the thirty-seventh session by the Assembly (8 October 2010) 55, paras 4, 6.

81  Ibid, para 5.

82  The EU had sought a global goal of reducing emissions from civil aviation by 10% from 2005 levels by 2020.

83  Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (Text with EEA relevance) (13 January 2009) Official Journal of the European Union L8/3.

84  Case C-366/10, Air Transport Association of America v Secretary of State for Energy and Climate Change [2011] ECR I-3755.

85  India and China opposed the EU measure as contrary to the principle of CBDRRC, while the US opposed it on the ground it was an impermissible exercise of extraterritorial jurisdiction. See Joanne Scott and Lavanya Rajamani, ‘EU Climate Unilateralism’, European Journal of International Law, 23/2 (2012): 469.

86  European Union, ‘Stopping the clock of ETS and aviation emissions following last week’s International Civil Aviation Organisation (ICAO) Council’, Press Release (12 November 2012) <http://europa.eu/rapid/press-release_MEMO-12-854_en.htm> accessed 20 January 2017.

87  ICAO Environment, ‘Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA)’ <http://www.icao.int/environmental-protection/Pages/market-based-measures.aspx> accessed 20 January 2017.

88  ICAO Assembly Resolution A39-3 (6 October 2016). For a number of perspectives on a market-based measure for international aviation, see ‘Special Issue on Aviation and Climate Change’, Carbon and Climate Law Review, 2016/2 (2016): 91.

89  The ozone regime consists of the Vienna Convention on the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22 September 1988) 1513 UNTS 324, the Montreal Protocol, and the associated amendments and decisions of the parties.

91  For example, CFC-11 has a global warming potential (GWP) of 4660, meaning that it is 4660 times more potent, molecule for molecule, than CO2, over a 100-year time horizon, and CFC-12 has a GWP of 10,200. IPCC, Climate Change 2013: The Physical Science Basis (2013), Appendix 8.A.

92  The FCCC’s commitments apply only to ‘greenhouse gases not controlled by the Montreal Protocol,’ FCCC, Arts 4.1(a), 4.2(a), and the Kyoto Protocol emissions targets do not include any ODS. Kyoto Protocol, Annex A (listing gases covered).

93  The Montreal Protocol has 197 parties, and has resulted in the phase-out of more than 98% of all of the chemicals it controls. UNEP, Key Achievements of the Montreal Protocol to Date <http://ozone.unep.org/Publications/MP_Key_Achievements-E.pdf> accessed 20 January 2017.

94  Guus J.M. Velders et al., ‘The Importance of the Montreal Protocol in Protecting Climate’, Proceedings of the National Academy of Sciences, 104 (2007): 4814.

95  Decision XIX/6, ‘Adjustments to the Montreal Protocol with Regard to Annex C, Group I Substances (Hydrochlorofluorocarbons)’ (21 September 2007) UNEP/OzL.Pro19/7, 33. Under the Montreal Protocol, ‘Article 5 parties’ are developing countries whose consumption of certain controlled substances is below 0.3 kilograms per capita. ‘Article 2 parties’ are all other parties.

96  Velders, Importance of Montreal Protocol (n 94); see also D.W. Fahey and M.I. Hegglin, Twenty Questions and Answers about the Ozone Layer: 2010 Update (Geneva: World Meteorological Organization, 2011), Q61 (estimating that the Montreal Protocol’s contribution to climate change mitigation has been five to six times larger than the Kyoto Protocol’s contribution during the first commitment period).

99  Guus J.M. Velders et al., ‘The Large Contribution of Projected HFC Emissions to Future Climate Forcing’, Proceedings of the National Academy of Sciences, 106/27 (2009): 10949.

101  Decision XXVII/1, ‘Dubai Pathway on Hyrdrofluorocarbons’ (5 November 2015) UN Doc. UNEP/OzL.Pro.27/13.

102  The amendment procedures for the Montreal Protocol are set forth in its parent agreement, the Vienna Convention (n 89) Art 9.

103  Montreal Protocol, Art 2.9.

104  Decision XXVIII/1, ‘Further Amendment of the Montreal Protocol’ (15 November 2016) UNEP/OzL.Pro.28/12, 31. The text of the Kigali Amendment is set out in Annex I. Ibid, 46.

105  Belarus, Kazakhstan, Russia, Tajikistan, and Uzbekistan have a slightly slower phasedown schedule.

106  Jeff Tollefson, ‘Nations Agree to Ban Refrigerants that Worsen Climate Change’, Nature (15 October 2016) <http://www.nature.com/news/nations-agree-to-ban-refrigerants-that-worsen-climate-change-1.20810> accessed 20 January 2017.

107  T.C. Bond et al., ‘Bounding the Role of Black Carbon in the Climate System: A Scientific Assessment’, Journal of Geophysical Research: Atmospheres 118 (2013): 5380, 5381. One study estimated black carbon forcing as 25–88% of CO2 forcing. V. Ramanathan and G. Carmichael, ‘Global and Regional Climate Changes Due to Black Carbon’, Nature Geoscience, 1 (2008): 221.

108  IPCC, Climate Change 2013: The Physical Science Basis (n 91), 718 (noting ‘wide’ uncertainties); LRTAP Convention, Black Carbon: Report by the Co-Chairs of the Ad Hoc Expert Group on Black Carbon (2010) UN Doc. ECE/EB.AIR/2010/7 and Corr.1, 6.

109  UNEP/WMO, Integrated Assessment of Black Carbon and Tropospheric Ozone (Nairobi: UNEP, 2011) 3.

110  LRTAP Convention (n 30).

111  Decision 2012/2, ‘Amendment of the Text and Annexes II to the 1999 Protocol and the Addition of New Annexes X and XI’ (4 May 2012) UN Doc ECE/EB.AIR/111/Add.1, 6.

112  Birgit Lode, ‘The Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants (CCAC)’, ASIL Insights, 17/20 (2013).

114  See generally Jürgen Scheffran et al. (eds), Climate Change, Human Security and Violent Conflict: Challenges for Societal Instability (Heidelberg: Springer-Verlag, 2012).

115  General Assembly Resolution 63/281, ‘Climate change and its possible security implications’ (11 June 2009) UN Doc. A/RES/63/281.

116  UN Secretary-General, ‘Climate change and its possible security implications’ (11 September 2009) UN Doc A/64/350.

117  ‘Implications of Climate Change Important when Climate Impacts Drive Conflict’ (20 July 2011) UN Doc SC/10332.

118  Lutz Weischer, Jennifer Morgan, and Milap Patel, ‘Climate Clubs: Can Small Groups of Countries Make a Big Difference in Addressing Climate Change?’, Review of European Community and International Environmental Law, 21/3 (2012): 177.

120  Ibid.

121  The term, ‘minilateral’, is used in contrast to ‘multilateral’ to refer to cooperation among a smaller number of countries. See Moises Naim, ‘Minilateralism’, Foreign Policy (June 21, 2009) (defining minilateralism as bringing to the table ‘the smallest number of countries needed to have the largest possible impact on solving a particular problem’).

122  Australia, Brazil, Canada, China, the EU, France, Germany, India, Indonesia, Italy, Japan, Korea, Mexico, Russia, South Africa, the United Kingdom, and the US. Major Economies Forum on Energy and Climate <http://www.majoreconomiesforum.org/> accessed 20 January 2017.

123  World Resources Institute, CAIT Climate Data Explorer <http://cait.wri.org/> accessed 20 January 2017.

124  The negotiating coalitions active in the climate change negotiations are discussed in Chapter 3, Section II.B.2.

125  France, Germany, Italy, the United Kingdom, Japan, the US, Canada, and Russia (since 1998).

126  David Sandalow and Hannah Volfson, ‘G8 Summit Leaders’ Statements, Climate Change Language 1990-2004’ (Washington: Brookings Institution, 30 June 2005).

127  Gleneagles Plan of Action: Climate Change, Clean Energy, and Sustainable Development (9 July 2005) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/48584/gleneagles-planofaction.pdf> accessed 20 January 2017.

128  L’Aquila Declaration on Responsible Leadership for a Sustainable Future (8 July 2009) para 65 <http://www.g8italia2009.it/G8/Home/Summit/G8-G8_Layout_locale-1199882116809_Atti.htm> accessed 20 January 2017.

129  G8+5 Academies’ Joint Statement, ‘Climate Change and the Transformation of Energy Technologies for a Low Carbon Future’ (May 2009) <http://www.nationalacademies.org/includes/G8+5energy-climate09.pdf> accessed 20 January 2017.

130  Doug Koplow and Steve Kretzmann, ‘G20 Fossil Fuel Subsidy Phase Out: A Review of Current Gaps and Needed Changes to Achieve Success’ (November 2010) <http://priceofoil.org/content/uploads/2010/11/OCI.ET_.G20FF.FINAL_.pdf > accessed 20 January 2017.

131  G20 Leaders’ Statement, The Pittsburgh Summit (24–25 September 2009) <https://www.treasury.gov/resource-center/international/g7-g20/Documents/pittsburgh_summit_leaders_statement_250909.pdf> accessed 20 January 2017.

132  G20 Leaders’ Communique, Antalya Summit (15–16 November 2015) <http://www.consilium.europa.eu/en/meetings/international-summit/2015/11/15-16/> accessed 20 January 2017.

133  See eg EU-China Joint Statement on Climate Change, European Council, Brussels (29 June 2015) <http://www.consilium.europa.eu/en/press/press-releases/2015/06/29-eu-china-climate-statement/> accessed 20 January 2017; Joint Statement on the First US-India Strategic and Commercial Dialogue, US Department of State, Office of the Spokesperson, Washington DC (22 September 2015); Jennifer Helgeson, ‘France & Brazil: A Common Call to Climate Change Action in the Amazon!’ (30 November 2009) <http://www.climaticoanalysis.org/post/france-brazil-a-common-call-to-climate-change-action-in-the-amazon/#> accessed 20 January 2017.

134  US-China Joint Announcement on Climate Change, Beijing, China (12 November 2014) <https://obamawhitehouse.archives.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change> accessed 20 January 2017.

135  Joint Statement on the First US-India Strategic and Commercial Dialogue (n 133).

137  International Energy Agency, World Energy Outlook (Paris: OECD/IEA, 2008) 180.

138  US Conference of Mayors Climate Protection Agreement <http://www.usmayors.org/climateprotection/agreement.htm> accessed 20 January 2017. In contrast to the Compact of Mayors and the C40 initiative (see nn 19–20 above), the Mayors’ Climate Protection Agreement involves only US mayors.

139  Center for Climate and Energy Solutions (C2ES), California Cap-and-Trade Program Summary (Arlington, VA, January 2014).

140  World Bank and Ecofys, State and Trends of Carbon Pricing: 2015 (Washington, D.C.: World Bank, 2015) 10.

142  For a general discussion of environmental federalism, see Michael D. Jones, Elizabeth A. Shanahan, and Lisa J. Hammer, ‘Environmental Policy’, in Donald P. Haider-Market (ed), The Oxford Handbook of State and Local Government (Oxford University Press, 2014) 778; see also Jonathan H. Adler, ‘When Is Two a Crowd? The Impact of Federal Action on State Environmental Regulation’, Harvard Environmental Law Review, 31/1 (2007): 67.

143  California Air Resources Board, ‘California’s Advanced Clean Car Program’ <https://www.arb.ca.gov/msprog/acc/acc.htm> accessed 20 January 2017.

144  Betsill and Bulkeley, Cities and the Multilevel Governance of Climate Change (n 32) 143 (twenty-eight transnational networks of subnational governments in Europe).

145  C40 was initiated in 2005 by the Mayor of London, Ken Livingstone, and was led by former New York City Mayor Michael Bloomberg from 2010 to 2013.

146  ICLEI stands for International Council for Local Environmental Initiatives. It was founded in 1990 and now goes by the name, Local Governments for a Sustainable Future. See also n 19 above.

147  See generally Matthew Ransom and Robert N. Stavins, ‘Linkage of Greenhouse Gas Emissions Trading Systems: Learning from Experience’ (Washington, D.C.: Resources for the Future, November 2013).

148  There is an extensive literature on the role of adjudication in addressing climate change, including: Jacqueline Peel and Hari M. Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 2015); William C.G. Burns and Hari M. Osofsky (eds), Adjudicating Climate Change: State, National, and International Approaches (Cambridge University Press, 2009); Michael Faure and Marjan Peeters, Climate Change Liability (Cheltenham: Edward Elgar, 2011); Richard Lord et al. (eds), Climate Change Liability: Transnational Law and Practice (Cambridge University Press, 2012); Michael J. Faure and Andre Nollkaemper, ‘International Liability as an Instrument to Prevent and Compensate for Climate Change’, Stanford Journal of International Law, 43 (2007): 123. For a critique of climate change litigation, see Eric A. Posner, ‘Climate Change and International Human Rights Litigation: A Critical Appraisal’, University of Pennsylvania Law Review, 155/6 (2007): 1925.

149  Roda Verheyen and Cathrin Zengerling, ‘International Dispute Settlement’, in Cinnamon P. Carlarne, Kevin R. Gray, and Richard G. Tarasofsky (eds), The Oxford Handbook of International Climate Change Law (Oxford University Press, 2016) 417; Cesare Romano, ‘International Dispute Settlement’, in Daniel Bodansky, Jutta Brunnée, and Ellen Hey (eds), Oxford Handbook of International Environmental Law (Oxford University Press, 2007) 1036.

150  Burns and Osofsky (eds), Adjudicating Climate Change (n 148). For a general discussion of the role of national courts, see Daniel Bodansky and Jutta Brunnée, ‘The Role of National Courts in the Field of International Environmental Law’, Review of European Community and International Environmental Law, 7/1 (1998): 11.

151  Recent environmental cases include the MOX Case between Ireland and the United Kingdom (Permanent Court of Arbitration, 2 July 2003), the Pulp Mills Case between Argentina and Uruguay (see Chapter 2, Section III.A.1), and the Aerial Herbicide Spraying Case between Ecuador and Colombia, which was resolved through a settlement by the parties; see ICJ Press Release 2013/20 <http://www.icj-cij.org/docket/files/138/17526.pdf> accessed 20 January 2017.

152  A compendium of cases related to climate change is maintained by the NGO, Climate Justice, and can be found at: <http://www.climatelaw.org> accessed 20 January 2017.

153  Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (7 December 2005) <http://www.inuitcircumpolar.com/inuit-petition-inter-american-commission-on-human-rights-to-oppose-climate-change-caused-by-the-united-states-of-america.html> accessed 20 January 2017. See also Chapter 9, Sections II.D.1 and II.E.1.

154  World Heritage Committee, Decision 29 COM 7B.a, ‘General Issues: Threats to World Heritage Properties’ (9 September 2005) Doc WHC-05/29.COM/22, 36; Decision 30 COM 7.1, ‘Issues Relating to the State of Conservation of World Heritage Properties: The Impacts of Climate Change on World Heritage Properties’ (23 August 2006) Doc WHC-06/30.COM/19, 7. See generally Erica J. Thorson, ‘The World Heritage Convention and Climate Change: The Case for a Climate Change Mitigation Strategy beyond the Kyoto Protocol’, in Burns and Osofsky (eds), Adjudicating Climate Change (n 148) 255. Articles 4 and 6 of the World Heritage Convention require parties not to take ‘any deliberate measures which might damage directly or indirectly’ world heritage sites located in another country.

155  Yale Center for Environmental Law and Policy, ‘Climate Change and the International Court of Justice’ (2013) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2309943##> accessed 20 January 2017. For further discussion of a possible ICJ case, see Chapter 2, Section III.B.2.

156  Massachusetts v EPA, 549 U.S. 497 (2007).

157  Friends of the Earth v Canada, 2008 FC 1183 [2009] 3 F.C.R. 201.

158  Gray v Minister of Planning [2006] LGERA 258; Brian J. Preston, ‘The Influence of Climate Change Litigation on Governments and the Private Sector’, Climate Law, 2/4 (2011): 485.

159  Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396 (judgment of 24 June 2015); see Jolene Lin, ‘The First Successful Climate Negligence Case: A Comment on Urgenda Foundation v the State of the Netherlands’, Climate Law, 5/1 (2015): 65.

160  Leghari v Federation of Pakistan, Lahore High Court Green Bench, Case No. W.P. No. 25501/2015.

162  See n 154 above and accompanying text.

163  Friends of the Earth v Canada, 2008 FC 1183 [2009] 3 F.C.R. 201. The Canadian court of appeals subsequently upheld the lower court ruling, and the Supreme Court declined to hear the appeal.

164  Genesis Power Ltd. v Franklin District Council, Decision No. A 148/2005; Greenpeace New Zealand v Northland Regional Council and Might River Power Limited, High Court of New Zealand, Auckland Registry, CIV 206-404-004617 (2006).

165  William C.G. Burns and Hari M. Osofsky, ‘Overview: The Exigencies that Drive Potential Causes of Action for Climate Change’, in Burns and Osofsky (eds), Adjudicating Climate Change (n 148) 1, 23.

166  See n 159 above and accompanying text.

167  See n 160 above and accompanying text.

168  David A. Grossman, ‘Tort-Based Climate Litigation’, in Burns and Osofsky (eds), Adjudicating Climate Change (n 148) 193.

169  Christina Voight, ‘Climate Change and Damages’, in Carlarne, Gray, and Tarasofsky (eds), Oxford Handbook of International Climate Change Law (n 149) 464.

170  See Myles Allen et al., ‘Scientific Challenges in the Attribution of Harm to Human Influence on Climate’, University of Pennsylvania Law Review, 155/6 (2007): 1353.

171  David B. Hunter, ‘The Implications of Climate Change Litigation: Litigation for International Environmental Law-Making,’ in Burns and Osofsky (eds), Adjudicating Climate Change (n 148) 357.

172  Ibid, 360.

173  Jonah Gbemre v Shell Petroleum Development Co. Nigeria Ltd et al. (2005) FHCNLR (Nigeria), (2005) AHRLR 151 (NgHC 2005). On the Gbemre Case, see Amy Sinden, ‘An Emerging Human Right to Security from Climate Change: The Case against Gas Flaring in Nigeria’, in Burns and Osofsky (eds), Adjudicating Climate Change (n 148) 173.

175  Massachusetts v EPA, 549 U.S. 497 (2007).

176  Friends of the Earth v Watson, 2005 US Dist. LEXIS 42335 (2005). The government ultimately settled the case in 2009, agreeing to consider climate change impacts attributable to federally-supported projects.

177  American Electric Power v Connecticut, 131 S.Ct. 2527 (2011) (Clean Air Act displaces federal common law right to injunctive relief based on public nuisance); Native Village of Kivalina v ExxonMobil Corp, 696 F.2d 849 (9th Cir. 2012) (Clean Air Act displaces federal public nuisance claim for damages).

178  See Brendan R. Cummings and Kassie R. Siegel, ‘Biodiversity, Global Warming, and the United States Endangered Species Act: The Role of Domestic Wildlife Law in Addressing Greenhouse Gas Emissions’, in Burns and Osofsky (eds), Adjudicating Climate Change (n 148) 145.

179  Hans-Joachim Koch, Michael Lührs and Roda Verheyen, ‘Germany’, in Lord et al. (eds), Climate Change Liability (n 148) 376, 414.

180  Burns and Osofsky, Overview (n 165) 22–4.

182  For a discussion of climate change adjudication in the ICJ as well other international courts and tribunals, see Philippe Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future of International Law’, Journal of Environmental Law, 28/1 (2016): 19.

183  United Nations Convention on the Law of the Sea (adopted 10 December 1982; entered into force 16 November 1994) 1833 UNTS 3.

184  Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995; entered into force 11 December 2001) 2167 UNTS 3.

185  See William C.G. Burns, ‘Potential Causes of Action for Climate Change Impacts under the United Nations Fish Stocks Agreement,’ in Burns and Osofsky (eds), Adjudicating Climate Change (n 148), 314.

186  See Chapter 9, Section IV.B.3.

187  See ibid, Section IV.B.5.b.

188  Naftrac Limited v State Environmental Investment Agency of Ukraine (4 December 2012), described in Verheyen and Zengerling, International Dispute Settlement (n 149) 423.

189  See n 153 above and accompanying text.

190  See also Chapter 2, Sections III.B and III.C, for a discussion of the problems in finding state responsibility for climate change harms.

191  Jutta Brunnée, et al., ‘Introduction’, in R. Lord et al. (eds), Climate Change Liability (n 148) 3, 6.

192  This section draws on Daniel Bodansky, ‘Climate Change: Transnational Legal Order or Disorder’, in Terence C. Halliday and Gregory Shaffer (eds), Transnational Legal Orders (Cambridge University Press, 2016) 287.

193  World Bank and Ecofys, State and Trends of Carbon Pricing (n 140) 10–11; Torbjorg Jevnaker and Jorgen Wettestad, ‘Linked Carbon Markets: Silver Bullet, or Castle in the Air?’, Climate Law, 6/1-2 (2016): 142, 144.

194  World Bank and Ecofys, Carbon Pricing Watch 2016 <https://openknowledge.worldbank.org/bitstream/handle/10986/24288/CarbonPricingWatch2016.pdf?sequence=4&isAllowed=y> accessed 20 January 2017.

195  Dallas Burtraw, et al., ‘Linking by Degrees: Incremental Alignment of Cap-and-Trade Markets’ (Resources for the Future, April 2013); Andreas Tuerck et al., ‘Linking Carbon Markets: Concepts, Case Studies, and Pathways’, Climate Policy, 9 (2009): 341.

197  Gilbert E. Metcalf and David Weisbach, ‘Linking Policies When Tastes Differ: Global Climate Policy in a Heterogeneous World’ (Cambridge, MA: Harvard Project on International Climate Agreements, 28 May 2010).

198  For a discussion of the CDM, see Chapter 6, Section V.B.

199  Anja Kollmuss, Helge Zink, and Clifford Polycarp, ‘Making Sense of the Voluntary Carbon Market: A Comparison of Carbon Offset Standards’ (Stockholm: Stockholm Environment Institute, March 2008) vi.

200  Jessica Green, ‘Order Out of Chaos: Public and Private Rules for Managing Carbon’, Global Environmental Politics, 13/2 (2013): 2.

201  Ibid, 14.

202  The EU-ETS has stimulated a voluminous literature, including A. Denny Ellerman, Frank J. Convery, and Christian de Perthuis, Pricing Carbon: The European Emissions Trading Scheme (Cambridge University Press, 2010), and Jon Birger Skjaerseth and Jorgen Wettestad, EU Emissions Trading: Initiation, Decision-Making and Implementation (Surrey, UK: Ashgate Publishing, 2008). For a recent assessment, see ‘Symposium: The EU Emissions Trading System: Research Findings and Needs’, Review of Environmental Economics and Policy, 10/1 (2016): 89.

203  According to Green, 79% of private carbon standards recognize the Kyoto Protocol’s rules. Green, Order Out of Chaos (n 200) 2.

204  Ibid, 3.

205  UNGA Res 45/212, ‘Protection of global climate for present and future generations of mankind’ UNGA (21 December 1990) UN Doc. A/RES/45/212, para 3.

206  Ibid, para 19.

207  Numbers are as of 2016 <http://unfccc.int/parties_and_observers/observer_organizations/items/9524.php> accessed 20 January 2017.

208  On NAZCA, see n 3 above.

209  Climate Summit 2014: Catalyzing Action <http://www.un.org/climatechange/summit/> accessed 20 January 2017.

211  Paris Agreement, preambular recital 15.

212  Decision 1/CP.21, ‘Adoption of the Paris Agreement’ (29 January 2016) FCCC/CP/2015/10/Add.1, 2, paras 133–4.

213  Paris Pledge for Action <http://www.parispledgeforaction.org/about/> accessed 20 January 2017.