Dr. Catherine Tinker is a visiting Associate Professor at Seton Hall’s School of Diplomacy and International Relations, where she teaches international law and international environmental law. She received her degree in Law from the George Washington University Law School and her master’s and doctor’s degrees in International Law from the New York University School of Law. Dr. Tinker is the founder and UN headquarters representative in New York of the Tinker Institute on International Law and Organizations (TIILO). Her main research themes are international law, sustainable development, the United Nations (UN) and Brazil’s Water Law.
In her interview to Panorama, the American researcher discusses what elements influence the international policies regarding climate change and how the international community sees this debate. Dr. Tinker makes remarks on the consequences of the US withdrawal from the Paris Agreement, one of the most important international instruments on climate change. Aditionally, she suggests that petroleum-exporting countries should switch to the search for alternative sources of energy.
Panorama: How do the capital, state and labor relations influence the ability of nations to reach their goals within the international climate change agenda?
Capital, regulations and laws of the state and labor relations all are crucial elements of any policy seeking to address the complex challenges posed by climate change and to limit increases in mean global temperature resulting from continued greenhouse gas emissions (GHG). The effects of climate change, such as extreme weather conditions (drought, flooding), sea level rise and ocean acidification, are projected to threaten food security globally, driving more people away from their homes seeking survival and leading to species extinction and altered ecosystems. Market forces are responding to the scarcity of natural resources and the need for changing patterns of consumption and production in a search for sustainability. It is clear that no nation, individual, private or public entity alone can achieve the delicate balance required to adapt to or mitigate the effects of climate change or limit GHG emissions. This is where international law based on good science comes in.
The debate has changed since the 1960s and 1970s, when sovereignty over natural resources was supreme and principles of international law like “common but differentiated responsibilities” allowed developing countries to delay compliance with international rules and standards while developed countries were held to account. Practical as well as equitable and historical reasons led to this approach and produced some results: progress in addressing global pollution in many regions, technological advances and scientific understanding of causes and effects in natural systems. Today there is a greater sense of shared responsibility worldwide, and principles of international law like the “precautionary principle or approach” suggest caution where scientific uncertainty exists about the effects of proposed human activities on the environment. Intractable global challenges require global solutions, and the engagement and commitment of all states is necessary to take the steps in the next decade or two that will protect life on earth for future generations.
The science of climate change has been elaborated in five consensus reports of the Intergovernmental Panel on Climate Change (IPCC) over the last 25 years. The IPCC, using the scientific method of testing hypotheses and predictions and reporting results, has reached areas of consensus among reputable scientists around the world. In its latest report, the panel concluded: “Projections of greenhouse gas emissions [carbon dioxide, nitrous oxide, and others which determine global warming] vary over a wide range, depending on both socio-economic development and climate policy. Anthropogenic GHG emissions are mainly driven by population size, economic activity, lifestyle, energy use, land use patterns, technology and climate policy.”[1]
Panorama: Currently there are three main instruments dedicated to producing standards and norms to mitigate global emissions of GHG, which are the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement. How do you see the evolution of the debate over climate change and the steps taken by the international community aimed to present a reasonable plan to face the challenges imposed by global warming?
The first instrument of international law dedicated to producing standards and norms to mitigate global emissions of GHG was the climate change treaty, the UN Framework Convention on Climate Change (UNFCCC), which entered into force in 1994, after being opened for signature in Rio de Janeiro at the Earth Summit, in 1992. With almost universal ratification, there are now 197 states party to the UNFCCC.[2]
The Kyoto Protocol to the UNFCCC, with 192 states party and the EU, is nearly as universal as the framework convention it elaborates and supports. The Kyoto Protocol[3] entered into force in 2005 and was initially applied to specific developed nations, establishing specific targets for reduction of GHG emissions. The Kyoto Protocol required 37 developed countries and the EU to limit GHG emissions and take other steps, but exempted 100 developing countries, including China and India, were exempted from reducing their emissions of certain GHGs by 5% below 1990 levels. When the Kyoto Protocol was extended to 2020, developing countries were required to meet responsibilities to reduce GHG emissions by at least 18 percent below 1990 levels in the period from 2013 to 2020 as well, and additional GHG were added to the annex.
In 2015, with the extension of the Kyoto Protocol until 2020, there is a greater emphasis on the responsibility of developing states as well as developed states. Several highly industrialized states that had ratified the original Kyoto Protocol withdrew, including Canada, on the grounds that, without the US and China, the Protocol was not effective. Nevertheless, with different parties, the Kyoto Protocol was extended until 2020, significantly with the addition of China. Under the Kyoto Protocol, countries meet targets through national measures, with additional help from three market-based mechanisms: international emissions trading, clean development mechanism and joint implementation.
The Paris Agreement, the third international legal instrument on climate change, was a diplomatic triumph involving multiple stakeholders in a process begun long before the conference actually occurred in December 2015, in Paris. One of the goals of the Paris Agreement[4] is to limit global temperature rise to 1.5 degrees Centigrade above pre-industrial levels if feasible. There are now 160 states party to the Paris Agreement, which entered into force in 2016. The challenge now is how states will keep their commitments and whether the promised steps will be adequate and timely enough to avert disaster on an unprecedented scale if global temperatures continue to rise and GHG emissions are not adequately curbed.
Skillful leadership, long preparation through a series of UN, regional, national and local meetings and conferences and the use of social media and the Internet to reach a broad constituency all contributed to the success of the Paris Conference of the Parties to the UNFCCC, with the resulting adoption of the Paris Agreement. A large and influential cohort of private sector representatives, both multinational corporations and small and medium-sized enterprises, as well as representatives of local and national governments, civil society groups, regional and global organizations, scientists and academics were present in Paris and contributed in advance to the pledges made in the Intended Nationally Determined Contributions (INDCs). This wide participation created a strong outcome document and a sense of ownership of the commitments necessary for the implementation of the agreement. The voluntary commitments by 155 national governments in their Nationally Determined Contributions (NDCs) will be reviewed in five years. They are posted on the NDC Registry (interim), available at http://www4.unfccc.int/ndcregistry/Pages/Home.aspx, last accessed on August 23, 2017.
The UNFCCC and its Kyoto Protocol, plus the commitments in the Paris Agreement of 2015, together have the potential to achieve universal success in the goals and the dire consequences of failure to do so on a global basis.
Panorama: The UNFCCC has established a list of industrialized nations that should commit to stricter rules of greenhouse gas emissions. However, some developing countries have been increasing their emissions since mid-1990, particularly China, India and also some oil producer giants, such as Saudi Arabia. Bearing in mind the withdrawal of the US and Canada from the Kyoto Protocol, how is it possible to engage the most industrialized nations in the developing world to the climate change regime?
Developing countries such as China, India and Saudi Arabia are facing their own policy decisions. They contributed to the adoption of the Sustainable Development Goals in the 2030 Agenda for Sustainable Development, including Goal 13 on climate change, which acknowledges the UNFCCC as the primary vehicle of international law on climate change. Consensus in such global meetings and the resulting documents show that states understand that health, poverty eradication and environmental survival depend upon sustainable development. The pace and level of growth of the population in the largest developing countries show the urgency of their participation; for example, the amount of GHG emissions in China is approximately the same as in the US and is rising in India. In addition, petroleum-exporting states would be wise to recognize that oil is a non-renewable source of energy and switch to the search for alternative sources of energy, joining some oil and gas industry companies that are diversifying their investment portfolio to include clean, renewable energy sources. It is the rapidly industrializing and developing countries that need to seriously address the causes and the effects of climate change for their own citizens and for the world, by adopting policies, regulations and laws to reduce GHG emissions and to incentivize the search for low-cost non-carbon energy sources and new technology. Market-based mechanisms enable developing states to participate in carbon-trading systems, with the goal of reducing atmospheric carbon and achieving “carbon-neutrality” worldwide.
Financing for climate change mitigation and adaptation in developing countries was established under the UNFCCC through the Global Environment Facility (GEF), and additional financing for developing countries will be available under the Paris Agreement by 2020, in the amount of US$100 million. A series of public-private partnerships have been formed through the UN and other initiatives to aid states in meeting their commitments to address climate change and its effects: natural disasters that kill people and animals, destroy cities and villages and require expensive rescue and rebuilding of new infrastructure, businesses and industry.
Panorama: What are the consequences of the US withdrawal from the Paris Agreement to both the climate change goals of the treaty itself and the wide diplomacy around it?
The consequences of the US withdrawal from the Paris Agreement are regrettable, but should not be overstated. Many steps have already been taken by most highly industrialized nations like the US and the member states of the EU over the last several decades to achieve efficiency in fuel, machinery, appliances, automobiles and manufacturing, and advances have been made in reducing pollution from industrial and municipal operations, researching alternative energy sources and reducing dependence on fossil fuels. The Paris Agreement is based on new and higher self-defined benchmarks for all countries to do more to reduce carbon emissions and address climate change, and through this process the Paris Agreement involved every country in the process, even if not all states have ratified the Agreement to date. In the US, which is a federal system like Brazil, the national pledge at Paris set standards that were to be implemented by individual states within the US. There are already many efforts to reduce GHG emissions on the regional, state or municipal level in the US that will not be affected by its withdrawal on the national level from the Paris Agreement, such as California’s aggressive GHG emissions restrictions and strict automobile equipment requirements. Another example is the Northeast Regional Greenhouse Gas Initiative (RGGI)[5] in the New England and Mid-Atlantic states, the first mandatory market-based program in the US. Since 2009, it has operated successfully by putting a price on carbon and establishing a regional budget for CO2 emissions from the power sector. Such programs show that cap-and-trade systems both reduce carbon emissions and result in economic growth in a region. On the municipal level, New York City’s OneNYC plan[6] addresses GHG emission reductions, mitigation and adaptation to the effects of climate change and resilience measures important in coastal areas to achieve disaster risk reduction from the effects of climate change.
Panorama: How has the American society been responding to the United States decision to leave the Paris Agreement?
In June 2017, President Trump announced the US withdrawal from the Paris Agreement[7] in favor of negotiations to re-renter or negotiate new terms considered more favorable to the US. This followed the Executive Order on Energy Independence[8], in which President Trump directed the US Environmental Protection Agency (EPA) to review President Obama’s Clean Power Plan[9], with the possibility of repealing the plan entirely or modifying it after review. The Clean Power Plan was designed prior to the Paris conference in 2015 to replace the use of coal and oil in power generation plants in the US with renewable sources of energy, increasing the US’s ability to meet its NDC commitment under the Paris Agreement. By making this commitment, the US encouraged other countries to make ambitious pledges at Paris. One US NGO the Environmental Defense Fund estimated that if fully implemented, the Clean Power Plan would reduce GHG from the power sector to 32% below 2005 levels. The oil and gas industry is pushing back.
A year before the 2017 Executive Order from President Trump, in 2016, the implementation of the Clean Power Plan by President Obama was challenged by 29 individual state governments and agencies, with the backing of industry groups and utilities. The Plan was defended in this action by a group of 14 environmental and public health groups and others. Implementation was stayed by the US Supreme Court and remanded to the DC Circuit Court of Appeals. That Federal court, as recently as August 8, 2017, continued the stay for an additional 60 days, meaning that the US Environmental Protection Agency cannot proceed with actions to develop or implement the Clean Power Plan. This case challenges the authority of the Federal Environmental Protection Agency to regulate GHG emissions from power plants in the US under the Clean Air Act, a signature environmental protection law adopted in 1970 and revised in 1990. Federal rulemaking procedures are being followed to review agency powers to implement laws passed by Congress in this case, which will include a review of the science of climate change used by the agency in formulating the rule.[10] The head of the EPA has announced a plan for “the three Es”: environment (protection), economy (sensible regulations that allow economic growth) and engagement (with state and local partners).[11] In this context, the announcement that the US was withdrawing from the Paris Agreement was not surprising to many, since the blocked implementation of the Clean Power Plan proposed by President Obama interfered with one of the primary means of meeting US commitments in Paris.
In late August 2017, an advisory group on climate change was disbanded by President Trump. This group, with representatives from 17 federal agencies, was tasked with creating a scientific report and recommendations based on scientific consensus within the US government, a document that has been produced four times in the past. A draft of the 5th National Assessment Report on climate change (CSSR) was circulated in June 2017, shortly before the advisory group was disbanded. The draft was not made public, but a copy reached the press.[12] It demonstrated the effects of climate change under several different scenarios and made predictions of how human activities were responsible for increased emissions of carbon dioxide and other GHGs. The report was due to be adopted and released by the Government in 2018. The draft report is not available at the website of the US EPA; however, the EPA website has some technical information on climate change indicators.[13]
American society has been responding in a variety of ways, with conflicting advocacy in the courts, Congress, public meetings by a broad range of non-governmental organizations and local governments and demonstrations in the streets. Despite the developments at the national level, individuals and local communities as well as some states in the US are continuing to make efforts to reduce energy costs and usage, develop alternative sources of energy and include them in the mix with fossil fuels and natural gas and continue to participate in regional and local compacts. Individual responsibility and personal lifestyle choices continue to be important to many, especially among young people, whose future is most at risk. Failure to renew government subsidies for solar power in recent national legislation is likely to negatively impact the growth of the industry in the US and raise the cost of using solar power for the production of electricity. People who chose to install solar panels received tax credits in many states and generated power, which lowered their electricity costs; ending tax credits could discourage expansion of solar energy or at least raise its cost to use. Subsidies and tax credits are continuing under federal law, however, for developing wind energy in the US.
The outcome of the domestic situation in the US in a broad sense will affect how national policies and laws are created and implemented on climate change and every other issue and will impact the participation of the US in various international or regional conferences and initiatives as well as the US compliance with instruments of international law.
[1] IPCC, 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, R.K. Pachauri and L.A. Meyer (eds.)]. IPCC, Geneva, Switzerland, 151 pp., available at https://ipcc.ch/report/ar5/, last accessed August 21, 2017. Additional climate science data is widely available on websites such as the US National Aeronautics and Space Administration (NASA) at https://climate.nasa.gov/news/ and Columbia University’s Earth Institute at http://www.earthinstitute.columbia.edu/, last accessed August 23, 2017.
[2] Available at http://unfccc.int/essential_background/convention/items/6036.php, last accessed on August 23, 2017.
[3] Available at http://unfccc.int/kyoto_protocol/items/2830.php, last accessed August 23, 2017. Note that the US did not participate in the negotiations on the Kyoto Protocol from 2001 on, and officially is not part of any meetings or obligations.
[4] Available at http://unfccc.int/paris_agreement/items/9485.php, last accessed August 23, 2017.
[5] Available at https://www.rggi.org/, last accessed on August 23, 2017.
[6] Available at https://onenyc.cityofnewyork.us/, last accessed on August 23, 2017.
[7] Available at https://www.whitehouse.gov/blog/2017/06/01/president-donald-j-trump-announces-us-withdrawal-paris-climate-accord, last accessed August 23, 2017.
[8] Executive Order on Energy Independence,” signed March 28, 2017, available at https://www.epa.gov/Energy-Independence.
[9] “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015)
[10] See https://www.epa.gov/Energy-Independence, last accessed August 20, 2017.
[11] Available at https://www.epa.gov/home/back-basics-agenda, last accessed August 23, 2017.
[12] Available at https://www.nytimes.com/interactive/2017/08/07/climate/document-Draft-of-the-Climate-Science-Special-Report.html?mcubz=3.
[13] Available at https://www.epa.gov/climate-indicators, last accessed August 23, 2017.