United States: Surprising Deal Reached At UN Climate Change Negotiations In Durban

Although scheduled to end on December 9, the Conference of the Parties to the United Nations Convention on Climate Change carried on for two extra days and reached a deal that surprised many observers on Sunday. The so-called "Durban Platform" takes significant strides towards the development of a new global agreement on climate change that is binding on all countries. In light of the renewed commitment by the Parties to the Framework Convention on Climate Change to pursue a binding treaty under the Durban Platform, the Parties to the Kyoto Protocol also agreed to a second commitment period to begin in 2013. While the extension of the Kyoto Protocol would be significant to those entities operating in countries that will accept emission limitations in the second commitment period and participants in the CDM, the Durban Platform itself has no impact unless a legally binding agreement to reduce greenhouse gas emissions is ultimately reached.

The Conference of the Parties agreed to develop a working group on the Durban Platform for Enhanced Action. The Durban Platform calls for "a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the United Nations Framework Convention on Climate Change applicable to all Parties."¹ If agreed to, the legal instrument envisioned by the Durban Platform would impose binding emissions limitations on both developed and developing countries. The Durban Platform calls for a new protocol to the Framework Convention on Climate Change to be adopted by 2015 and enter into force no later than 2020.² As such, the Durban Platform is best understood as an agreement to agree, and until the details of a binding legal instrument are agreed to, the possibility of the new and binding global deal on greenhouse gas controls should be viewed with skepticism.

In light of the Durban Platform and the agreement by all Parties, including China, India, and the United States, to work toward a treaty including legally binding greenhouse gas emission limitations, the Parties to the Kyoto Protocol, led by the EU, agreed to a second commitment period to the Kyoto Protocol. Prior to the Conference of the Parties in Durban, it was widely expected that the Kyoto Protocol would be allowed to expire at the end of the first commitment period on December 31, 2012, and there were some doubts about whether the Clean Development Mechanism — the process by which investment in low carbon technologies in developing countries can generate UN-approved carbon credits — would continue to be viable. In Durban, the Parties to the Kyoto Protocol agreed that there will be a second commitment period beginning on January 1, 2013, and running until either December 31, 2017, or December 31, 2020.³ Parties are to submit their emissions reduction targets, in the form of quantified emission limitation or reduction objectives (QELROs) no later than May 1, 2012.⁴

As of this writing, the EU has committed to emission reductions of 20 percent below 1990 levels and reiterated its conditional pledge of 30 percent below 1990 levels. The EU has stated that it will commit to a 30 percent reduction if other developed countries commit to comparable emissions reductions and developing countries "contribute adequately according to their responsibilities and respective capabilities."⁵ Nine other countries have joined the EU in pledging emission reduction targets for the second commitment period, while Australia and New Zealand are still considering whether they will ratify the agreement. Notably, Japan, Russia, and Canada have maintained their stance that they will not commit to further greenhouse gas emission reductions under the Kyoto Protocol.

The extension of the Kyoto Protocol is significant to those Parties covered by the Protocol or participating in the CDM. With respect to private parties, the extension of the Kyoto Protocol will be important for those entities that turn to the carbon markets either as a source of emissions allowances or a means to finance emission-reduction projects in Annex II Countries. As noted above, much work remains to be done before the Durban Platform could mature into a binding international agreement. Thus, while the Durban Platform is a potentially significant political milestone, it is of little practical impact to entities operating in countries that are not Parties to the Kyoto Protocol. For example, while an ultimate agreement to a legally binding treaty under the Durban Platform could spur efforts to re-energize domestic climate change legislation in the United States, the Durban Platform itself seems unlikely to alter the domestic political and regulatory landscape.

The Conference of the Parties also agreed to mobilize US$100 billion per year by 2020 to address the needs of developing countries and continue working towards mechanisms to sectoral emissions reduction schemes and new market mechanisms.⁶ These and other details of Durban's outcomes will be discussed in more detail in the Winter 2012 issue of the V&E Climate Change Report.

Footnotes

1. Draft Decision -/CP.17, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, ¶ 2 available at http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/cop17_durbanplatform.pdf.

2. Id. ¶ 4.

3. Draft Decision -/CMP.7, Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its sixteenth session ¶ 1, available at http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/awgkp_outcome.pdf.

4. Id. ¶ 5.

5. Id. Annex 1.

6. See Draft Decision -/CP.17, Outcome of the work of the Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention, available at http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/cop17_lcaoutcome.pdf.

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