Canada: The Road To Copenhagen: An Update On U.S. And Canadian Participation In Climate Change Negotiations

Last Updated: August 10 2009
Article by Perkins Coie And Fasken Martineau

In December 2009, the Plenary United Nations Conference of the Parties on Climate Change will convene in Copenhagen (the "Copenhagen COP") to produce an outline for international climate change regulation after 2012. However, much needs to be accomplished before December. The United States plans to play an important role in Copenhagen provided the U.S. Congress adopts federal climate change rules itself. Canada likely will join with the U.S. in negotiations.

Preparation for the Copenhagen COP has generated much recent discussion and activity. This update discusses U.S. and Canadian activities.

Background. The Kyoto Protocol ("Kyoto") is an international agreement linked to the United Nations Framework Convention on Climate Change (the "UNFCCC"). Kyoto set binding targets for 37 industrialized countries ("Annex I countries") to reduce their greenhouse gas ("GHG") emissions between 2008 and 2012, on average to five per cent less than 1990 levels.

Kyoto's last compliance period concludes December 31, 2012.1 By then, a new international agreement must be finalized (and ratified by each nation) to achieve the emission reductions required by the Intergovernmental Panel on Climate Change to combat climate change.

Negotiations Leading To Copenhagen

Two negotiating tracks lead to Copenhagen. The first, the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Protocol (the "AWG-KP") is working to define post-2012 commitments under the Kyoto Protocol. The second, the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (the "AWG-LCA"), is preparing a negotiating text for an agreement requiring long-term international cooperative action.

In June, the two negotiating tracks met at the Bonn Climate Change Talks (the "Bonn Talks"). The Bonn Talks included both Kyoto and non-Kyoto signatories including Canada and the U.S.

The Bonn Talks

Commitments Under Kyoto

The AWG-KP (which did not include the United States, India or China) considered two draft documents, including a proposal on Kyoto amendments, but did not decide on aggregate emission reduction targets for developed countries.

The Draft Treaty Negotiating Text

The AWG-LCA (which did include the United States, India and China) considered a draft post-Kyoto Climate Treaty originally released in May 2009. This is the first negotiating draft for post-Kyoto agreement to require all developed nations (basically, Annex I countries and the U.S.) to adopt legally binding emission mitigation and reduction. The draft is vague. It calls for global GHG emissions to be significantly less than 1990 levels by 2050, and for global temperature increases to be limited to 1.5 to 2º C above nineteenth century pre-industrial levels (when atmospheric carbon dioxide levels were approximately 280 ppm CO2e). The draft calls for financial assistance to developing countries to support their adaptation to carbon control, and suggests that developing nations adopt voluntary "nationally appropriate" mitigation actions ("NAMAs") such as Clean Development Mechanisms and Reducing Emissions from Deforestation and Degradation.

The draft is general and includes various alternative texts. However, it points to a nationally implemented, targeted, cap and trade program primarily applicable to developed countries. Developing or lesser developed countries would receive assistance from developed countries seeking offsets or would make voluntary commitments. If private sector funding to assist developing countries proves inadequate, the draft suggests additional public sector funding. The draft supports venture capital funds for emissions reductions as well as insurance programs to be deployed against weather and crop risks. The draft does not clearly indicate whether or how China or India, as developing countries, would be bound to GHG reductions.

The participant's comments on the negotiating text and proposed additions and modifications resulted in a revised negotiating text issued in late June, which will be discussed further at upcoming meetings. The participants at the Bonn Talks did not reject the draft negotiating language. This was considered a promising development.

In the News. The Associated Press, in a news story [link to: http://en.cop15.dk/news/view+news?newsid=1764] available on the Copenhagen COP website, reports that "[t]he question of which nations will agree to limit their greenhouse gases...is taking on increasing urgency at the United Nations...". The story notes that UN Secretary-General Ban Ki-moon has made it a top priority to encourage nations to agree to a successor climate change agreement to reduce GHG emissions.

In a recent meeting in India between U.S. Secretary of State Hilary Clinton and Indian Environment Minister Jairam Ramesh, Ramesh emphasized India's position with respect to a climate change agreement, that is, India is not able to commit to legally-binding emission targets. The Washington Post [link to: http://www.washingtonpost.com/wp-dyn/content/article/2009/07/19/AR2009071900705.html] reported on July 20, 2009, that "Ramesh declared that India would not commit to a deal that would require it to meet targets to reduce emissions."

However, USA TODAY [link to: http://www.usatoday.com/news/washington/environment/2009-07-19-climate-india_N.htm] reported on the meeting in India that U.S. Envoy for Climate Change, Todd Stern, told reporters, "...it's clear that the U.S. and other developed countries will be asked to accept absolute reductions in greenhouse gas emissions from a specific baseline number, whereas India and other developing nations would be expected to accept a slowing of the upward trajectory on which their emissions are now headed. Details are to be negotiated."

China, which together with the U.S. is responsible for 40% of worldwide carbon dioxide emissions, is also resisting binding reductions in GHG emissions. Chinese and U.S. representatives recently discussed climate change in their meeting at the US-China Strategic and Economic Dialogue. In an address on July 29, 2009, [link to address: http://kerry.senate.gov/cfm/record.cfm?id=316428], U.S. Senate Foreign Relations Committee Chairman Senator Kerry (D. MA) stated that China and the U.S. signed a confidential memorandum of understanding that includes language on climate change, but remain divided on this issue and the details of an agreement have yet to be decided.

Although Kyoto relied on a uniform cap and trade program across all Annex I countries, the participants at the Bonn Talks did not rule out the use of NAMAs by developed and developing countries alike to meet their emissions targets. That is, each country might choose its own method to achieve its reduction goals, whether cap and trade, carbon tax or some other method. Implementing language to define NAMAs remains to be negotiated.

Upcoming Negotiations

Participants will meet for further negotiations in Bonn on August 10-14. Prior to the Copenhagen COP, meetings are also scheduled to take place from September 28-October 9 in Bangkok and from November 2-4 in Barcelona.

US And Canadian Preparations For International Action On Climate Change

United States

In January 2009, when U.S. Secretary of State Clinton appointed Todd Stern, an experienced international negotiator on climate change issues, as U.S. Special Envoy for Climate Change, Secretary Clinton promised the U.S. would take a lead role in designing, adopting and participating in international climate change activities that succeed Kyoto.

In April, representatives from the U.S., Canada and fifteen other large economies met in Washington, DC for a Major Economies Forum on Energy and Climate. In May, the U.S. submitted its comments on negotiations for international climate change action to the AWG-LCA.2

In part, the United States' ability to play a major role in Copenhagen will depend on whether it has already (or is about to) enact binding GHG legislation in the U.S. It could be difficult for the U.S. administration to lead in Copenhagen if it has failed to prevail over Congress on the same subject. In Congress, on June 26, 2009, the Waxman-Markey bill, the American Clean Energy and Security Act (HR2454), passed the U.S. House of Representatives by a narrow vote of 219-212. HR 2454 would institute nationwide cap and trade regulation to reduce U.S. carbon emissions to 17 percent below 2005 levels by 2020. Now, the U.S. Senate must pass similar legislation, the two bills must be reconciled, and the President must sign the bill. As of July 16, 2009, Environment and Energy Daily analyzed the current Senate situation with respect to a vote on such legislation as 43 probable favorable votes, 35 probable unfavorable votes, with 21 Senators undecided.

However, current predictions in Washington DC are that the Senate will not take up climate legislation before resolving the latest issue du jour—health care reform—an issue that will likely occupy the Congress into the fall. This increases the possibility that U.S. legislation on climate change won't be enacted before the Copenhagen COP. In any event, it seems likely that no significant Senate action on climate change will take place before September.

However, climate change delay in Washington may not have a major effect on the Copenhagen COP if the administration seems on the road to success in the Senate. Substantial progress, such as a bill having passed both Houses, would give the administration credibility and authority in Copenhagen even if the final legislation has not cleared conference committee or been signed into law.

Some commentators have suggested that the U.S. Environmental Protection Administration, which has been very quiet on climate change in recent months, might propose new carbon dioxide control regulations under the Clean Air Act, as much to caution Congress against inaction as to hinder climate change.

Canada

Like the U.S., Canada's approach to negotiations leading up to the Copenhagen COP reflects shifting goals and actions established in Canadian domestic policies. Evolving Canadian federal domestic policies include emissions reporting requirements and the establishment of a national target of an absolute 20% reduction in GHG emissions relative to 2006 levels by 2020. The programs necessary to achieve this goal including corresponding mandatory targets and regulations has not yet been released.

Provincial policies vary and are at different stages of development. British Columbia, Manitoba, Ontario and Quebec have joined the Western Climate Initiative. Alberta and Saskatchewan are individually developing intensity-based reduction targets for large emitters. The Maritime Provinces of New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland entered a regional arrangement with the Governors of the New England States in 2001 that commits to a 10% reduction in 1990-level GHG emissions by the year 2020. British Columbia and Quebec have implemented carbon taxes.

In turn, these goals and actions reflect the economic realities of Canada and North America. Canada is pursuing reduced GHG emissions and adaptation to climate change without placing undue burden on its economic growth.

The Canadian Government's position on international climate change negotiations, posted on Environment Canada's website, declares, "a new global agreement is required to reduce emissions by at least 50% by 2050," and that, "any post-2012 global agreement must also include all major emitting countries."

It is not clear from the negotiations at the Bonn Talks what reductions Canada will propose in further negotiations leading towards the Copenhagen COP. At the Copenhagen COP, it is also expected Canada will seek international agreement to develop and deploy low carbon technologies based on market-driven policies and strategic investments.

Canada's negotiating position at Copenhagen will necessarily support constructive and comprehensive action with its major economic North American partners to achieve a balanced outcome in the international negotiations.

Conclusion

The next session of negotiations will take place in Bonn from August 10 to 14. In light of recent meetings and discussions between the major emitting countries of China, India and the U.S., and also the uncertainty of progress of U.S. domestic legislation, it will be especially interesting to watch developments in these negotiations regarding the participants' commitment to limiting future GHG emissions.

Footnotes

1. The UNFCCC website states: "The Kyoto Protocol is generally seen as an important first step towards a truly global emission reduction regime that will stabilize GHG emissions, and provides the essential architecture for any future international agreement on climate change." (http://unfcc.int/kyoto_protocol/items/2830.php).

2. The United States did not sign the Kyoto Protocol; therefore, it is not part of the Annex 1 countries under the Kyoto Protocol (AWG-KP). Rather, the US is a participant in the AWG-LCA.

www.fasken.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions