Climate Law Blog

By Madeline Cameron Wardleworth

Photo: National Interagency Fire Center

To Australian eyes, the deplaning of US firefighters in Sydney in January 2020 felt like watching the Avengers arrive at a battle scene.  Our battle scene this summer has looked apocalyptic, with the bushfire crisis having refashioned the Australian landscape to be a kangaroo-corpse infected iteration of Dante’s Inferno.  Providing direct support to the crisis is currently the Australian Defence Force’s main effort, over 1 billion animals have likely been killed, and, on New Year’s Day, one monitoring site in the nation’s capital, Canberra, peaked at an air quality index reading of 7,700.  Readings above 200 are considered hazardous to health.  Against this backdrop, there is, as former Australian Prime Minister Kevin Rudd has noted: ‘the helplessness we feel as we sit, watch and wait. Often the best we can do is stay glued to the ABC, ring people we know in harm’s way, and then give to charity.’  Perhaps that’s partially why, then, that when the all-American Avengers arrived in Sydney, applause erupted in the airport.  There’s something viscerally relieving and gratitude-inducing about the arrival of skilled firefighting resources.  

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Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE #130:

FEATURED CASE

Divided Ninth Circuit Said Juliana Plaintiffs Lacked Standing to Press Constitutional Climate Claims Against Federal Government

In a split decision, the Ninth Circuit Court of Appeals ruled that young people and other plaintiffs asserting a claim against the federal government for infringement of a Fifth Amendment due process right to a “climate system capable of sustaining human life” did not have Article III standing. The Ninth Circuit therefore reversed the orders of the federal district court for the District of Oregon denying the government’s motions to dismiss and for summary judgment and judgment on the pleadings. The Ninth Circuit rejected the government’s argument that the plaintiffs’ constitutional claims had to be brought pursuant to the Administrative Procedure Act and agreed with the district court that the plaintiffs met the injury and causation requirements for Article III standing because at least some plaintiffs had alleged concrete and particularized injuries caused by fossil fuel carbon emissions that were increased by federal subsidies and leases. The Ninth Circuit found, however, that the plaintiffs had not established the redressability requirement for standing. The court said it was “skeptical” that even the first prong of redressability—that the relief sought be substantially likely to redress the plaintiffs’ injuries—was satisfied, noting that the plaintiffs conceded “that their requested relief will not alone solve global climate change.” The Ninth Circuit further concluded that even if the first prong was satisfied, the plaintiffs did not “surmount the remaining hurdle” of establishing that the relief they sought was within the power of Article III courts. The majority wrote that “[t]here is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular,” but said it was beyond judicial power “to order, design, supervise, or implement the plaintiffs’ requested remedial plan.” The majority said it “reluctantly” concluded that “the plaintiffs’ case must be made to the political branches or to the electorate at large” and “[t]hat the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.” The dissenting judge would have held that the plaintiffs had standing and that they had asserted claims under the Constitution and presented sufficient evidence to proceed to a trial. The dissent contended that “a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.” Juliana v. United States, No. 18-36082 (9th Cir. Jan. 21, 2020).

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An increasing number of U.S. cities are seeking to limit the flow of vehicular traffic in designated areas as a means to reduce greenhouse gas and other emissions from cars and trucks and to help achieve their municipal climate goals. The creation of these “low traffic zones,” or LTZs, can take a number of different forms, including, most prominently, (1) bans on one or more categories of vehicles and (2) fees or tolls that may be charged to all vehicles equally or made applicable only to certain classes of vehicles. These two policy approaches – bans and fees – are often written about separately but they are merely two traffic demand management tools that can be employed to create LTZs.

A new paper by Sabin Center senior fellow Amy E. Turner, forthcoming in the Environmental Law Reporter in April 2020, defines LTZs as bounded, geographic areas in which reductions in vehicular traffic are achieved or attempted through legal and policy approaches and surveys the U.S. law questions that arise in connection with the creation of LTZs. The U.S. has a complex patchwork of federal, state and local laws, and LTZ policies that have found success abroad will need tailoring to comport with U.S. laws. This new paper provides a comprehensive overview of the state of play and offers a range of approaches for lawyers and policy-makers to reach answers appropriate to their own local contexts.

Key legal considerations in crafting LTZ policy include:

• The potential for preemption by federal laws such as the U.S. Clean Air Act, the U.S. Energy Policy & Conservation Act and the U.S. Federal Aviation Administration Authorization Act. Clean Air Act § 209(a) preempts state and local laws setting a “standard relating to the control of emissions from new motor vehicles or new motor vehicle engines,” and EPCA § 32919(a) preempts state and local “fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard” thereunder. Reference to low emissions automobile technologies, such as hybrid or electric vehicles, may be considered proxies for fuel economy standards. To the extent LTZ policies reference emissions or fuel economy standards, or distinguish between vehicle technologies, framing these policy aspects as incentives rather than mandates can help limit risk of federal preemption. Moreover, the Federal Aviation Administration Authorization Act preempts “state [or local] law, regulation, or other provision having the force or effect of law related to a price, route, or service of any motor carrier… with respect to the transportation of property.” However, the FAAA does “not restrict [state and local] limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo,” giving states and local governments some authority to set truck routes, tolls and other traffic restrictions based on weight. Municipalities may also generally rely on market participant exceptions to these statutes.
• U.S. Constitutional provisions such as the dormant Commerce Clause, the right to travel and the right to equal protection. Laws or policies that are discriminatory or that favor drivers from one state over another, will invite dormant Commerce Clause scrutiny, though cities retain some authority to enact laws aimed at improving safety or reducing congestion, even if they have some impact on interstate commerce. As under the federal statutes, municipalities may generally rely on a market participant exception to the dormant Commerce Clause. LTZ policy-makers should also consider any disparate impacts tolls and road closures may have on residents of different states, though impacts need not be identical to avoid violating the Constitutional right to travel or right to equal protection.
• State laws enabling or restricting a municipality’s right to enact LTZ policies, and federal and state law authority to set and collect tolls. State enabling laws vary and may require municipalities to work with the state-level government in enacting a congestion pricing regime or LTZ. The U.S. Federal Highway Administration can be particularly helpful to state and local governments in studying or enacting congestion pricing. Close attention should also be paid to the allowable uses of tolling revenues, which vary from state to state.
• The protection of user and data privacy. LTZ programs that use enforcement cameras or that collect license plate and/or credit card data will need to be calibrated to comply with applicable privacy laws. Moreover, data collection policies may give rise to litigation even where they are crafted to comport with legal requirements.
• The potential for other litigation challenges, including pursuant to state environmental review statutes and other state and local laws. Opponents of any new LTZ policy may find grounds to object through litigation by alleging an improper taking, an insufficient environmental review or another claim. Litigation can be costly, even where the municipality is found to have complied with applicable laws in developing its LTZ policy.

These legal considerations are explored more fully in the paper. Read the executive summary and full paper here.

By Michael Burger, Jessica Wentz, and Radley Horton

The evolving field of climate change attribution science plays a critical role in shaping our understanding of how humans are affecting the global climate system, and in informing discussions about responsibility for climate change impacts. Attribution science, which explores the links between climate change and extreme weather events, provides the evidentiary basis establishing that anthropogenic climate change is real, that it is here, and that scientific predictions of future change should be taken seriously. Confronted with this growing body of research, courts, policy-makers, and private actors are now grappling with critical legal questions, such as whether governments are doing enough to reduce emissions and adapt to climate risks, and whether corporations can be held liable for their contributions to the problem.

Several years ago, Sabin Center executive director Michael Burger and senior fellow Jessica Wentz teamed up with Radley Horton, a climate scientist and research professor at the Lamont-Doherty Earth Observatory, to assess the state-of-the-art in attribution science and investigate how this field is shaping discussions about legal rights and obligations pertaining to climate change. This project has culminated in a new article, “The Law and Science of Climate Change Attribution,” published by the Columbia Journal of Environmental Law. The article, weighing in at 185 law journal pages,provides a comprehensive overview of attribution research and its application in legal settings.

Some of the key findings from our research include:

• The existing body of detection and attribution research is sufficiently robust to support the adjudication of certain types of legal disputes. But there are also complicating factors which can make it difficult to identify a clear causal chain between a particular emission source and specific harms or impacts associated with climate change.Ultimately, the extent to which the science can support legal claims will depend on many factors, such as the nature of the claim, the identities of the plaintiffs and defendants, and the nature of the alleged injuries.
• Many observed physical impacts such as sea level rise, melting permafrost, and ocean acidification can be attributed to anthropogenic climate change with high confidence. Consensus confidence levels are currently lower for other impacts, such as extreme events, public health outcomes, economic losses, and ecosystem degradation.There is a growing body of extreme event and impact attribution studies finding a causal connection between impacts such as heat-related mortality and anthropogenic influence on climate change.
• Once an impact has been attributed to anthropogenic climate change, it can also be attributed to specific emission sources on a proportional basis. This calculation may involve estimating the proportional contribution of the source to global greenhouse gas emissions, and using that to extrapolate the proportional contribution of the source to the impact. However, source attribution is not a purely objective quantitative exercise. There are normative questions implicated in the process of determining who is responsible for what emissions.
• Attribution science plays an important role in lawsuits seeking to compel national governments to take action on climate change.In several foreign cases, plaintiffs have successfully used attribution science to demonstrate that a government’s failure to regulate greenhouse gas emissions at adequate levels endangered the public health and welfare of citizens within the country, and thus the government had violated its duty of care to its citizens.
• Lawsuits seeking to hold corporations liable for their contribution to climate change have met with jurisdictional, procedural and other obstacles, and to date have not faltered due to any limitations in the science. For example, some U.S. courts have held that climate-related claims are either displaced by the Clean Air Act or should be handled by other branches of government based on separation of powers principles. The science may be strong enough to support a finding of liability if plaintiffs in pending and future cases overcome these initial hurdles and if judges apply traditional tort principles when evaluating the merits of these claims.
• The scientific community can support applications of attribution research, such as the use of this research to inform loss and damage negotiations and judicial determinations of liability for climate change impacts. Such support may involve continuing to expand and improve upon existing attribution research, including in currently underrepresented geographic regions and with regards to impacts experienced in the present; communicating findings clearly and in an accessible format; engaging with stakeholders to help them understand findings; and linking individual studies to other research that helps to flesh out the causal chain from emissions to impact. Policymakers, judges, and litigants can also improve their understanding of the science and expand the analytical approaches they use to evaluate the legal and normative implications of the science when making judicial or policy determinations.

This article is a launching point rather than a conclusion to our work. We intend to build on its foundation with further research, publications, and educational materials tracking new developments in the field and addressing emerging questions.

An executive summary of the paper is available here.

By Romany M. Webb

       Sources of methane emissions in the U.S. (2017)               (Source: EPA data)

On Tuesday, January 28, House Democrats published a draft of the so-called “CLEAN Future Act” which aims to “achieve a 100 percent clean economy by not later than 2050.” The Act’s authors describe it as a “comprehensive” plan for achieving “net zero greenhouse gas pollution, while also . . . revamp[ing] the U.S. economy and uplift[ing] the middle class.” An important component of the plan is stricter regulation of methane, which is both a highly potent greenhouse gas and a valuable source of energy that could be captured and used, resulting in economic and environmental benefits. Despite this, however, any attempt to strengthen methane regulation is likely to be staunchly opposed by the Trump administration.

Last year, the administration rescinded key provisions of the Methane Waste Prevention Rule, which was adopted by the Bureau of Land Management (BLM) under President Obama, and required oil and gas producers on federal lands to capture methane. Three other Obama-era methane rules adopted by the Environmental Protection Agency (EPA) – one targeting the oil and gas industry and the other two applying to landfills – are currently under review and expected to be substantially weakened. Many lawmakers are starting to push back, however. Along with the CLEAN Future Act, lawmakers are currently considering five other bills, aimed at preventing the Trump administration rolling-back existing methane regulations and/or requiring further regulatory action. To inform the ongoing debate about those bills, this blog reviews the history and current status of methane regulation in the U.S.

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This week, Daniel Metzger joins the Sabin Center as a Climate Law Fellow.  Daniel’s work will focus on, among other areas, international climate change litigation, climate risks and opportunities in the reinsurance industry, and the law and science of climate change attribution.

Before joining the Sabin Center, Daniel practiced with Selendy & Gay representing clients on a broad range of litigations that included precedent-setting work on behalf of renewable energy companies. Daniel clerked for the Honorable Steven M. Gold of the U.S. District Court for the Eastern District of New York. Daniel earned his J.D. at Vanderbilt Law School, where he was the executive editor of the Vanderbilt Journal of Transnational Law and a member of the Environmental Law and Policy Annual Review, a yearly collaboration between the Environmental Law Institute and Vanderbilt Law School that identifies and celebrates the best environmental law scholarship published each year. Before law school Daniel worked as a consultant with an agricultural firm advising clients on a wide range of matters including regulatory compliance and nutrient management, and completed a master’s degree in natural resource management at Iceland’s University Centre of the Westfjords. Daniel is a member of the Federal Bar Council’s First Decade Committee, which organizes social and educational programs of interest to lawyers in their first decade of practice.

By Hillary Aidun

Last month, the Environmental Protection Agency’s (EPA) Science Advisory Board (SAB) issued a draft report sharply criticizing the analysis underpinning the agency’s proposed rollback of new motor vehicle standards. The report is one more piece of evidence that the Trump administration EPA is seeking to enact environmental policies that sideline science. This post focuses on several climate-relevant aspects of the SAB’s draft report.

In 2012, EPA and the National Highway Traffic Safety Administration (NHTSA) promulgated new rules to set greenhouse gas emission and fuel economy standards for new motor vehicles.  The rules created requirements for model years 2017-2021 and 2022-2025, which would become more stringent each year, achieving greater greenhouse gas reductions over time.  In 2018, the agencies issued a proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule, to freeze the standards at 2020 levels through 2026, rather than tightening them each year.  The final SAFE rule has not yet been published.  However, the agencies have finalized a portion of the rule that revokes California’s authority to set motor vehicle regulations that are more climate-protective than the federal requirements, including greenhouse gas emissions standards that fifteen other states have adopted and a zero-emission vehicle mandate embraced by twelve other states.

The SAB reviews and comments on scientific issues raised by certain major agency actions.  In December the SAB released a report identifying “significant weaknesses” in the analysis underpinning the proposed SAFE Rule.  In fact, the SAB concluded that the Trump Administration’s reasoning was so flawed that a corrected analysis could show that the existing standards, which the SAFE rule would replace, actually provide a better outcome. The report identifies several major flaws in the Administration’s analysis.

First, the SAB faults the agencies for failing to account for California’s climate-protective regulations.  In assessing the costs and benefits of different policy alternatives, the agencies did not consider the fact that complying with the existing standards is easier because California’s regulations have increased deployment of zero-emission vehicles.  Moreover, the agencies’ analysis omits any assessment of the costs and benefits of revoking California’s authority to set its own vehicle emission rules.  The SAB urges the Administration to fill in these gaps in its final analysis.

Second, the agencies’ analysis assumes that under the SAFE rule six million fewer cars would be on the road by 2029.  However, as the SAB explains, basic economic theory suggests that people will buy more cars as compliance costs fall, bringing vehicle prices down with them.

Third, the agencies assume that as stricter regulations make new cars pricier, more people will hang on to their old cars, which are associated with safety risks and higher levels of pollution.  By the same token, according to the agencies, the laxer SAFE rule will lead to a rise in the sale of new, safer, less-polluting vehicles.  However, the SAB cautions that the agencies overstate the likely bump in new vehicle sales that deregulation will produce. Moreover, the SAB warns that the agencies’ math rests on the unrealistic assumption that consumers have zero willingness to pay for improved gas mileage—in other words, that consumers are not at all willing to pay a premium for more fuel-efficient cars that will save them money in the long run.

Fourth, the agencies’ analysis relies heavily on the assumption that people with more fuel-efficient cars will simply drive more, offsetting any reduction in fuel consumption.  While some “rebound effect” could happen, the SAB warns that the agencies seem to have inflated it here. Given this, the agencies likely underestimate the benefits of tightening fuel economy standards, and in the process, overstate the relative benefits of their proposal to freeze the standards at 2020 levels. In short, the Trump Administration appears to have concluded that the SAFE rule would lead to a smaller, newer fleet and less driving, but without any sound analytical foundation.  

The critiques are all the more remarkable given that the EPA has sought to reshape its list of science advisors to make the SAB more sympathetic to its deregulatory agenda.  The SAB report has been covered in several news outlets. Comments will be accepted throughout the advisory process.

The Sabin Center for Climate Change Law posted its Summer/Fall 2019 Semi-Annual Report, which includes a summary of the Center’s key activities between June and December 2019.

It is available for download here.

Below are some key highlights from the report:

• The Sabin Center launched several new projects: the Cities Climate Law Initiative, Legal Pathways to Deep Decarbonization, and the Renewable Energy Legal Defense Initiative.
• The Center submitted comments and briefs to numerous agencies, including the EPA and FERC.
• The Center sponsored or co-sponsored a total of 10 events. Many are available on our youtube channel.
• The Center published books and papers on a variety of topics. These include:

Free-Movement Agreements & Climate-Induced Migration, Ama Francis (October 2019)

State Hazard Mitigation Plans & Climate Change: Rating the States: 2019 Update, by Dena Adler and Emma Gosliner (September 2019)

Survey of Greenhouse Gas Considerations in Federal Environmental Impact Statements and Environmental Assessments for Fossil Fuel- Related Projects, 2017-2018, by  Madeleine Siegal and Alexander Loznak (November 2019)

Annual Review of Developments Under SEQRA, by Michael B. Gerrard and Edward McTiernan (September 2019)

New Climate Law Will Reshape NY’s Key Sectors, by Michael B. Gerrard and Edward McTiernan (July 2019)

To learn more about our work, our Climate Law Blog, and numerous media and news items in which Michael Gerrard, Michael Burger and Sabin Center fellows were interviewed, quoted or mentioned, read the report here.

By Hillary Aidun & Ama Francis 

A decision last week by the UN Human Rights Committee indicates that if climate impacts worsen in the future, countries may not return climate migrants to their home states where their right to life is threatened. The decision represents a step forward since climate migrants currently fall outside the scope of international refugee law, and there is no governing framework for climate migration to fill that gap.

The story of the petitioner, Ioane Teitiota, is one of a climate migrant grasping at multiple legal straws in the absence of clear protective measures. Teitiota arrived in New Zealand in 2007, and his residency permit expired in 2010. In 2012 he filed a claim for recognition as a refugee and/or protected person, claiming that because sea level rise had led to land scarcity and environmental degradation in Kiribati, deporting him would violate his right to life under New Zealand’s Immigration Act. Teitiota’s refugee claim was denied in a decision affirmed by New Zealand’s Immigration and Protection Tribunal, High Court, Court of Appeal, and Supreme Court. In 2015 Teitiota was removed to Kiribati.

Shortly thereafter he filed a communication with the UN Human Rights Committee (“Committee”), asserting that New Zealand had violated his right to life under Article 6 of the Covenant on Civil and Political Rights. Teitiota specifically argued that the lack of clean drinking water caused by sea level rise had caused serious health issues in his family, including the blood poisoning of one of his children, and that he had been unable to grow crops.

On January 7, 2020, the Committee ruled against Teitiota, reasoning that under Article 6, the risk of an arbitrary deprivation of life must be personal, rather than rooted in a country’s general conditions, except in the most extreme cases. The Committee recognized that environmental degradation and climate change constitute serious threats to the ability of present and future generations to enjoy the right to life, but upheld New Zealand’s determination that Teitiota had not provided evidence that he faced any real chance of being harmed in a land dispute, would be unable to grow food or access potable water, or otherwise faced life-threatening conditions.

While the decision is plainly a loss for Teitiota, it also demonstrates that rights-based litigation on climate change continues to gain traction, and may open the door for climate refugee claims down the line.  First, though it ultimately dismissed his claim, the Committee did rule that Teitiota’s communication was admissible because he sufficiently demonstrated that due to the impact of climate change and sea level rise on the habitability of Kiribati, he faced a real risk of impairment to his right to life under Article 6 of the Covenant.  Moreover, the opinion is not a full-throated endorsement of New Zealand’s decision to deport Teitiota; rather, the Committee may only reverse a State Party’s determination that is clearly arbitrary or amounted to a manifest error or a denial of justice.  In other words, if the Committee were assessing Teitiota’s claim in the first instance, it could conceivably have reached a different result.

More importantly, the Committee found that without serious national and international action on climate change, impacts could become extreme enough to threaten the right to life, making it unlawful for states receiving climate migrants to turn them away. The Committee further concluded that “given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.” Accepting Teitiota’s assertion that sea level rise is likely to render Kiribati uninhabitable within ten to fifteen years, the Committee explained that there was sufficient time for intervening acts by the government of Kiribati, with international assistance, to protect its citizens. Without robust national and international action, however, climate change might undermine the right to life, “thereby triggering the non-refoulement obligations” of countries receiving climate migrants.

Finally, two of the Committee members filed dissents, concluding that New Zealand’s decision to remove Teitiota was arbitrary, or manifestly erroneous, or a denial of justice. The first dissenter argued that the Committee erred by equating “potable water” with “safe drinking water,” and that the onus is on the State Party to demonstrate that Teitiota and his family had access to the latter in Kiribati. The second concluded that New Zealand imposed an unreasonable burden of proof on Teitiota to establish the real risk of arbitrary deprivation of life.

The Committee’s decision, although a positive step in filling the climate-induced migration protection gap, falls short on two fronts. First, the Committee’s interpretation of the threshold of risk creates a perverse outcome, where climate impacts must result in death more regularly before the Committee can find a violation of the right to life. The Committee determined that the risk to Teitiota and his family did not meet the threshold required to establish that they faced arbitrary deprivation of life under Article 6. Although Teitiota’s wife feared her children drowning in a tidal event or storm surge, the Committee decided Teitiota’s family was not in danger because “no evidence had been provided to establish that deaths from such events were occurring with such regularity as to raise the prospect of death occurring to the author or his family members to a level rising beyond conjecture and surmise.”   Yet as the dissent notes, “[i]t would indeed be counterintuitive to the protection of life, to wait for deaths to be very frequent and considerable, in order to consider the threshold of risk as met.”

Second, the Committee’s determination that “risk must be personal, that it cannot derive merely from the general conditions in the receiving State,” means that only the most severely impacted climate migrants may find relief by claiming enforcement of their right to life.  Yet the entire population of Kiribati would be affected if climate impacts rendered the low-lying atoll nation uninhabitable.  The fact that Teitiota’s difficulty in accessing safe drinking water and habitable land is shared by other I-Kiribati does not render his situation any more dignified. As the dissent persuasively states, “New Zealand’s action of deporting Teitiota is . . . like forcing a drowning person back into a sinking vessel, with the ‘justification’ that after all there are other voyagers on board.”

Teitiota’s loss exemplifies the difficulty of trying to use the framework of individual rights as redress for collective harm. To date, neither the 1951 Refugee Convention nor the Covenant has granted individual climate migrants the ability to seek protection abroad.  In the case of Kiribati, and other low-lying states, population-wide solutions like planned relocation thus remain critical.  When low-lying state governments attempt to implement adaptive measures or enact national solutions, however, those efforts count against individual petitioners. The Committee, for example, noted that Kiribati was taking steps to address climate change harms through its National Adaptation Programme of Action under the United Nations Framework Convention on Climate Change, and therefore it could not conclude that Kiribati’s actions were inadequate to protect Teitiota’s right to life.

The Committee’s decision sends a clear signal that the right to life may require states to refrain from deporting climate migrants if climate impacts worsen. It serves not only as a potential opening for future claims, but also a reminder of the importance of reducing emissions now.

By Susan Biniaz

With Madrid behind us and Glasgow on the horizon, it is a good time for Parties and others to consider the future of the annual COP. (By “COP,” I mean the climate conference writ large, rather than the “Conference of the Parties,” the narrower technical name for the Parties to the UN Framework Convention on Climate Change.) Madrid, while a remarkably successful venue in terms of logistics, left many not only disappointed at the Parties’ failure to reach agreement and signal an increase in ambition but also confused:

o  Why was there such a disconnect between the scientific imperative (as well as the public outcry) and the official outcome?

o  Why were the Parties unable to reach agreement, when the remit was so much smaller than the previous year and the compromises fairly apparent?

o  Did the issuance by a subset of Parties of “principles” they intend to follow have broader significance for climate governance?

o  Why was it like pulling teeth to get an important climate issue (the ocean/climate nexus) considered by the Parties to what is supposed to be the foundational agreement on climate change?

o  Why were emerging issues (e.g., law of the sea implications of sea level rise, carbon removal technologies) discussed only on the sidelines?

o  On the whole, why did the side events seem more like the main event?

Moving forward, these and other questions are likely to be in the minds of COP Presidents, Parties, and climate watchers as they conceptualize, and set expectations for, future COPs.  The design of the Paris Agreement will also be relevant.  With its implementing guidance (the “rulebook”) nearly completed, and its contributions nationally determined, there will be much less for the Parties to negotiate.  This puts a higher premium on other aspects of COPs, particularly their ability to catalyze national action and international support (financial, capacity-building, etc.), and may also affect the type of government representatives that need to attend the annual conference.

In short, 2020 provides an important opportunity to imagine the features of an ideal COP, recognize (and address, if possible) the challenges, and set out a desirable yet workable vision.

Read the full working paper here.