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Ken Speaks During Side Event at COP 15 in Copenhagen PDF Print E-mail
International Negotiations
Written by Kenneth Markowitz   
Wednesday, 23 December 2009 00:00

Ken spoke at an event hosted by Global Witness called "REDD Monitoring for Effective Implementation," which occurred on December 10th, 2009 during the COP 15 conference in Copenhagen, Denmark. The event focused on the importance of strong governance institutions and civil society for making any REDD program a success. REDD—which stands for Reduced Emissions from Deforestation and Degredation—is a program by which forest acreage is monetized and incentives are created to prevent its destruction.

Ken was joined on this panel by speakers from the World Bank and the UN's Food and Agriculture Organization, and his presentation stressed the foundational role of compliance and enforcement in the rule of law, good governance and sustainable development.

REDD Monitoring for Effective Implementation (2nd Article) [Earth Negotiations Bulletin]

Text of Potential "Copenhagen (Political) Agreement" Leaked PDF Print E-mail
International Negotiations
Written by Kenneth Markowitz   
Tuesday, 08 December 2009 23:45

Ken is attending COP 15 in Copenhagen. He will file occasional posts from the conference.

Late on Tuesday night, a draft text began circling through the Copenhagen meetings. This "Danish text" is purportedly the basis of the negotiations of a politically binding "Copenhagen Agreement." While this document would replace any sort of legally binding international treaty, its circulation does not necessarily preclude the creation of a legally binding text. It does certainly, however, look like things are headed toward a political agreement with cross-references to a number of decisions on specific issues to be taken here.

Of course, we have to recognize that it is early in the process, and there does appear to be significant pushback from developing countries on the political agreement concept since the document's release less than 2 hours ago, but it certainly is getting significant attention and could form the basis for the Conference's output.

Read the text of the document here.

Expectations for Copenhagen: Whether Optimistic, Pessimistic, or Realistic, World Leaders are Endorsing Several Visions PDF Print E-mail
International Negotiations
Written by Kenneth Markowitz   
Tuesday, 01 December 2009 00:00

After international negotiators met in Barcelona at the beginning of November, predictions on the likely outcomes—or lack thereof—from December’s Copenhagen conference have popped up everywhere. In the immediate aftermath of the Barcelona meetings, the consensus amongst those in the United States and the West more broadly was that Copenhagen was headed for failure—at least insomuch as a legally binding treaty like the Kyoto Protocol is off the table.

Since then, the situation has only become more muddled. Evidence abounds for those looking either to take a more optimistic view of the upcoming meeting, or those looking to bolster the more pessimistic outlook.  In recent days, the optimists may be gaining more evidence. President Obama’s recent trip to China birthed several positive announcements with regard to the two country’s climate action, including from a joint statement released at the end of these bilateral meetings which noted that

The United States and China, consistent with their national circumstances, resolve to take significant mitigation actions and recognize the important role that their countries play in promoting a sustainable outcome that will strengthen the world’s ability to combat climate change.  The two sides resolve to stand behind these commitments.

In the past few days, both countries have backed up that statement, by announcing that they will come to Copenhagen with hard commitments to emissions reductions; the U.S. “in the range of 17%” while Chinese have pledged to reduce the carbon intensity of their economy by 40-45%. Just pledging commitments of any kind is a significant step for Copenhagen; it was disputes over commitments like these that derailed the Barcelona talks.

The nature of these commitments, however, may give the pessimists some ammunition—President Obama’s commitment is still tied to action in the Congress, where any outcome is far from certain. In any case, a reduction of 17% is much less than many developing countries were calling for, and much less than the IPCC suggested cuts of 25-40% by 2020. For China, some experts have noted that currently enacted policies ought to fully cover China’s commitment, meaning that the Chinese have essentially pledged themselves to “business as usual” emissions.

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In Barcelona, Climate Progress Stalls PDF Print E-mail
International Negotiations
Written by Max Schwartz   
Friday, 06 November 2009 13:54

As I write this, I’m sitting in a conference hall on the outskirts of Barcelona. The AWG-LCA plenary meeting is being wrapped up on the other side of a particleboard divider 35 feet away. The halls are filled with NGO observers and diplomats. And after five long and somewhat confounding days, all I can tell you is that there seems to remain considerable distance to a legally binding international climate accord.

I joined Ken Markowitz this week in Barcelona, at the final major climate conference before the Copenhagen meeting this December—the meeting at which the international community is supposed to replace the Kyoto Protocol. We came here, along with one of our partners, the International Network of Environmental Compliance and Enforcement, to promote compliance and enforcement efforts in support of the carbon market, an effort which included a—if I may say so—lively side event this morning over the role of compliance, and the potential for fraud, in the international carbon markets.

The major story coming out of Barcelona will be the likely failure of the world to meet the Copenhagen deadline. While some might dispute it, the general consensus in the halls of the Barcelona Fira Grand Via has been that no legally binding treaty will be developed in December. The best we can hope for, many people indicated, seems to be a political agreement, with a legally binding treaty being hashed out in 2010.

It has been simultaneously an inspiring and depressing week.

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2nd Circuit Rules in Connecticut v. AEP, Finds that GHGs Cause "Public Nuisance" PDF Print E-mail
Carbon Litigation
Written by Max Schwartz   
Tuesday, 22 September 2009 15:15

In a ruling yesterday, a panel of the 2nd Circuit Court of Appeals handed down a unanimous victory for the plaintiffs in Connectituct v. American Electric Power, a case brought by a coalition of states and local governments against a number of large power plants. The case, originally argued in 2006, had been dismissed by the lower court on the grounds that it represented a "non-justiciable political question." Yesterday's ruling, decided by two judges (the original third Judge on the panel, Sonia Sotomayor, left the 2nd Circuit for the Supreme Court) overturned that decision, stating that:

“Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury.”

After adressing the question of the lower court's holding, the panel ruled that the suit could continue, finding that a common-law claim of "public nuisance" regarding greenhouse gasses was not preempted by federal law and articulating a role for federal courts in the current climate battle.

“It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance” by greenhouse gases.

This ruling means that courts could end up having a significant role in determining how greenhouse gasses are emitted and controlled—at least in the event that Congress fails to act on its own emissions control program.


State of Connecticut v. American Electric Power Co. (PDF) [2nd Circuit Court of Appeals]

EU Court Overturns European Commission Decision Regarding 2nd Phase of ETS PDF Print E-mail
EU Emissions Trading Scheme
Written by Max Schwartz   
Tuesday, 29 September 2009 16:00

In a ruling sure to have wide-ranging effects on how the EU Emissions Trading Scheme (EU-ETS) will be governed, the European Court of First Instance ruled that the European Commission (EC), had overstepped its boundaries in rejecting national allocation plans for two countries: Poland and Estonia.

The countries had originally appealed decisions made in 2003 for the 2nd phase of the EU-ETS, which runs from 2008-2012; those decisions had been made by the EC and had set each country's allocation of carbon credits lower than they had originally proposed. The Court ruled that the EC could not:

  • Reject a country's credit allocation plans on any other ground besides incompatibility with the Directive creating the EU-ETS; (In this case the EC had rejected Poland and Estonia's plans based on what it deemed to be faulty data.)

  • Ignore the data submitted by a country and replace it with its own data obtained through its own methods; and

  • Impose a single way of assessing credit allocations on all members of the EU-ETS.

European carbon market participants expressed concerns over the ruling:

“It means two things — possibly more allowances in the market and more uncertainty,” Emmanuel Fages, a carbon analyst with Société Générale, the investment bank, said. “It’s another blow because people will say the market doesn’t work.”

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