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Climate Change
Law and Policy
After Cancún


Rónán Kennedy
24 March 2011




                 Law School
Climate Change


•  Human activity leads to emission of gases
  –  Carbon dioxide, methane, nitrous oxide
•  Gases alter the climate system
•  Global temperature is increasing
•  Likely adverse effects on
  –  human health
  –  biodiversity
  –  ecological productivity

                                              2
Regulatory Issues


•  Emissions unavoidable by-product of economic activity
•  Still large stocks of fossil fuels remaining
•  Atmosphere is a ‘global commons’




                                                  3
Likely Impact on Ireland:


  –  Changes in rainfall patterns
  –  Warmer summers and winters
  –  Changes in growing season
  –  River flooding may increase
  –  Sea level rises




                                    Law School
Likely Resulting Costs


•  Obvious impact on population centres
•  Damage to infrastructure
•  Impacts on farming?
•  Increased need for irrigation
   –  balanced by new market opportunities?




                                              5
•  UN Framework Convention on Climate Change (1992)
   –  Purpose: stabilize “greenhouse gas concentrations in
      the atmosphere at a level which would prevent
      dangerous anthropogenic interference with the
      climate system” (Article 2)
   –  Opened for signature at UNCED in 1992, in force 1994
•  Kyoto Protocol (1997)
   –  US and Australia refused to ratify
   –  Europe coaxed Russia into ratifying in 2004
•  Policies and measures to reduce emissions
•  Aggregate emissions reduced
    –  by at least 5% below 1990 levels
    –  in the commitment period 2008 to 2012
Kyoto “Flexible Mechanisms”


  –  Emissions trading (cap-and-trade)
     •  No legal limit to amount purchased (Bonn)
  –  Joint implementation
     •  Projects shared between developed countries
  –  Clean Development Mechanism
     •  Projects in developing country but funded by developed
        country
•  MOP-1 in Montreal, November 2005
    –  Focus on dialogue for the future
•  MOP-2 in Nairobi, November 2006
    –  Not very productive
•  MOP-3 in Bali, December 2007
    –  Agreed “roadmap” to December 2009 for post-2012 regime
•  MOP-4 in Poznan, 2008
    –  No significant breakthroughs
•  MOP-5 in Copenhagen, 2009
•  MOP-6 in Cancún, 2010
Preliminary work for Copenhagen Conference


•  Two tracks (ad hoc working groups):
   –  Long-term Cooperative Action (AGW-LCA)
   –  Kyoto Protocol (AWG-KP)
•  Collectively – “The Bali Roadmap”




                                               Law School
The “Copenhagen Accord”, 2009


•  Emission reductions by Annex I countries
•  Mitigation actions by non-Annex I countries
•  “Copenhagen Green Climate Fund”
•  To be assessed by 2015




                                                 Law School
MOP-6, Cancún, Mexico (Nov-Dec 2010)


•  Positive outcomes
    –  Approved “Accord”
    –  Established “Adaptation Framework”/“Committee”
    –  “Green Climate Fund” (with pledges)
•  Shift from “top-down” to “bottom-up” approach?
•  Procedural and substantive challenges:
    –  Unwieldy procedures
    –  North/South suspicions
    –  Ideological grandstanding
    –  Need for consensus
                                                        Law School
US: Application of Clean Air Act


•  Massachusetts v EPA
•  National Fuel Efficiency Policy
•  Tailoring Rule
•  Regional voluntary cap-and-trade systems




                                              Law School
US: Legislative Proposals


•  American Clean Energy and Security Bill (Waxman-Markey)
•  Clean Energy Jobs and American Power Bill (Kerry-Boxer)
•  No new legislation expected




                                                       Law School
EU Response


•  Negotiation of a ‘bubble’ for emissions
•  Overall target: reduction of 8%
•  Irish target: increase of 13%
•  EU Emissions Trading Scheme (EU ETS)
•  “20/20/20” target:
   –  by 2020,
   –  20% emissions reduction,
   –  20% use of renewables

                                             Law School
•  Directive 2003/87/EC
•  Two periods: 2005-2007 & 2008-2012
•  Cap-and-trade system
•  Applies to some industrial activities (energy, ferrous metals,
   mineral industry, etc.)
•  Allowances granted by governments, based on National
   Allocation Plan (NAP)
     –  2005-2007: at least 95% free
     –  2008-2012: at least 90% free
ETS Penalties


•  30 April each year:
   –  2005-2007: €40/tonne
   –  2008-2012: €100/tonne
•  Linking Directive (2004/101/EC)
   –  Connected to JI/CDM
EU: Emissions Trading Scheme (ETS) Issues


•  Over-allocation of allowances
•  Carbon leakage?
•  Lack of real impact?
•  Security issues




                                        Law School
•  Directive 1999/94/EC on consumer information on car
   economy and CO2 emissions (under review)
•  Decision 1753/00/EC on CO2 monitoring for new cars
•  Regulation 443/2009/EC setting emission performance
   standards for new passenger cars
•  Directive 2001/77/EC on renewable energy sources
•  Directive 2009/28 on renewable energy
•  Directive 2003/30/EC on biofuels (to be replaced by Directive
   2009/28)
•  Directive 2008/101/EC to include aviation in the EU ETS
•  Directive 2002/91/EC on the energy performance of buildings
•  Directive 2003/96/EC on taxation of energy products
•  Regulation 842/2006/EC on certain flourinated greenhouse
   gases (and related technical regulations)
Other European Legislation


•  Directive 2009/31/EC on carbon capture and storage
•  Changes to Fuel Quality Directive and Energy Performance of
   Buildings Directive
•  Effort Sharing Decision (406/2009/EC) – Irish target: -20%
   reduction in emissions
•  2000: National Climate Change Strategy launched
•  ‘Business as usual not an option’
•  Key initiatives in NCCS:
    –    Carbon energy taxation
    –    Use of emissions trading
    –    Measures supportive of ending coal-firing at Moneypoint
    –    Fuel switching to low and zero carbon fuels
    –    Livestock reductions and lower fertiliser use
    –    Fuel efficiency, demand management and modal shift in transport
    –    Energy efficiency in construction
    –    Adjustment of the new house grant
•  Excise relief for biofuels
•  Domestic emissions trading linked with EU ETS
•  Carbon tax abandoned September 2004
•  Moneypoint still open, retrofit approved
•  Back to ‘business-as-usual’?
•  April 2007: National Climate Change Strategy
•  Projected emissions: 80 MtCO2E
•  Kyoto target: 63 MtCO2E
•  Reduction of 17 MtCO2E required
•  Energy: ETS, renewable energy
•  Transport: Transport 21, car technology improvements,
   support for biofuels
•  Residential: Building Regulations amendments
•  Industry: ETS, voluntary Large Industry Energy Network,
   support for bioheat and CHP
•  Agriculture and Forestry: CAP reform, afforestation
•  Waste: diversion of biodegradable waste, landfill gas
   capture
•  Public Sector: CFL bulbs, energy savings by OPW, carbon
   offsets for air travel, biomass heating in schools
•  Flexible Mechanisms
   –  3.6 MtCO2E purchase
   –  Anticipated annual cost of €54 million
•  Climate Change Commission
•  Annual Implementation Status Report (replaced by carbon
   budgets)
•  EPA to prepare emissions reports and projections
•  New Climate Change Strategy to be prepared
•  Environmental Protection Agency Act 1992
   (as amended by Protection of the Environment
   Act 1992)
•  Sustainable Energy Act 2002
•  European Communities (Greenhouse Gas
   Emissions Trading) Regulations 2004 (SI
   437/2004)
•  Kyoto Protocol Flexible Mechanisms
   Regulations 2006 (SI 244/2006)
•  European Communities (Greenhouse Gas
   Emissions Trading) (Amendment) Regulations
   2005 (SI 706/2005)
•  Building Regulations (Amendment)
   Regulations 2005 (SI 873/2005)
•  European Communities (Energy Performance
   of Buildings) Regulations 2006 (SI 666/2006)
•  Building Regulations (Amendment)
   Regulations 2007 (SI 854/2007)
•  Planning and Development Regulations 2007
   (SI 83/2007)
•  Planning and Development Regulations 2008
   (SI 235/2008)
•  Carbon Fund Act 2007
•  Motor Vehicle (Duties and Licences) (No. 2) Act 2008
•  Planning and Development (Amendment) Act 2009
•  Energy (Biofuel Obligation and Miscellaneous Provisions)
   Act 2010
•  Private Members Bills
Ireland: Carbon Budget 2010


•  Carbon levy: €15 per tonne of carbon dioxide
•  Framework for Climate Change Bill




                                                  Law School
Government: Climate Change Bill


•  Target: average 3% annual reduction on 1990 to 2020; 80%
   by 2050
•  National Climate Change Strategy: statutory basis
•  Carbon Budget: also statutory basis
•  Climate Change Committee: statutory, high level experts
•  Change Change Adaptation: statutory, 8 year cycle
•  Domestic Carbon Offsetting/Trading
•  Monitoring, Reporting and Statutory Obligations

                                                             Law School
Joint Committee: Climate Change Bill


•  Target: 20% reduction on 2005 by 2020; 30% if successor to Kyoto
   Protocol
•  Office of Climate Change and Renewable Energy: part of Department of
   An Taoiseach
•  National Climate Change Strategy: annual, by Taoiseach
•  Climate Change Commission: independent
•  Climate Change Dividend Fund: revenue from auctions, taxes
•  Offset schemes: including forest carbon offsets
•  Risk assessment: every 5 years
•  Climate change statements: from significant public authorities and bodies

                                                                      Law School
•  2001: 31%
•  2002: 29%
•  2003: 25%
•  2004: 23.7%
•  2005: 26.7%
•  2006: 25.6%
•  2007: 25%
•  2008: 3.99%
•  2009: 2.23%
Influences on the Future


•  Better understanding of sustainability issues
•  Economic recession
•  Smaller-scale agreements between groups of states
•  Increasing media scrutiny and hostile public comment




                                                          Law School
Possible Future Responses


•  Voluntary industry schemes
•  Public procurement criteria
•  Expansion of ETS
•  Public awareness campaigns
•  Product labelling
•  Financial instruments: carbon taxes & subsidies
•  Individual carbon credits (‘carbon rationing’)

                                           37
The Future


•  UNFCCC process in trouble?
•  Bilateral and small-scale multilateral treaties?
•  Climate Change Act 201x?




                                                      Law School

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Climate Change Law and Policy After Cancún

  • 1. Climate Change Law and Policy After Cancún Rónán Kennedy 24 March 2011 Law School
  • 2. Climate Change •  Human activity leads to emission of gases –  Carbon dioxide, methane, nitrous oxide •  Gases alter the climate system •  Global temperature is increasing •  Likely adverse effects on –  human health –  biodiversity –  ecological productivity 2
  • 3. Regulatory Issues •  Emissions unavoidable by-product of economic activity •  Still large stocks of fossil fuels remaining •  Atmosphere is a ‘global commons’ 3
  • 4. Likely Impact on Ireland: –  Changes in rainfall patterns –  Warmer summers and winters –  Changes in growing season –  River flooding may increase –  Sea level rises Law School
  • 5. Likely Resulting Costs •  Obvious impact on population centres •  Damage to infrastructure •  Impacts on farming? •  Increased need for irrigation –  balanced by new market opportunities? 5
  • 6. •  UN Framework Convention on Climate Change (1992) –  Purpose: stabilize “greenhouse gas concentrations in the atmosphere at a level which would prevent dangerous anthropogenic interference with the climate system” (Article 2) –  Opened for signature at UNCED in 1992, in force 1994 •  Kyoto Protocol (1997) –  US and Australia refused to ratify –  Europe coaxed Russia into ratifying in 2004
  • 7. •  Policies and measures to reduce emissions •  Aggregate emissions reduced –  by at least 5% below 1990 levels –  in the commitment period 2008 to 2012
  • 8. Kyoto “Flexible Mechanisms” –  Emissions trading (cap-and-trade) •  No legal limit to amount purchased (Bonn) –  Joint implementation •  Projects shared between developed countries –  Clean Development Mechanism •  Projects in developing country but funded by developed country
  • 9. •  MOP-1 in Montreal, November 2005 –  Focus on dialogue for the future •  MOP-2 in Nairobi, November 2006 –  Not very productive •  MOP-3 in Bali, December 2007 –  Agreed “roadmap” to December 2009 for post-2012 regime •  MOP-4 in Poznan, 2008 –  No significant breakthroughs •  MOP-5 in Copenhagen, 2009 •  MOP-6 in Cancún, 2010
  • 10. Preliminary work for Copenhagen Conference •  Two tracks (ad hoc working groups): –  Long-term Cooperative Action (AGW-LCA) –  Kyoto Protocol (AWG-KP) •  Collectively – “The Bali Roadmap” Law School
  • 11. The “Copenhagen Accord”, 2009 •  Emission reductions by Annex I countries •  Mitigation actions by non-Annex I countries •  “Copenhagen Green Climate Fund” •  To be assessed by 2015 Law School
  • 12. MOP-6, Cancún, Mexico (Nov-Dec 2010) •  Positive outcomes –  Approved “Accord” –  Established “Adaptation Framework”/“Committee” –  “Green Climate Fund” (with pledges) •  Shift from “top-down” to “bottom-up” approach? •  Procedural and substantive challenges: –  Unwieldy procedures –  North/South suspicions –  Ideological grandstanding –  Need for consensus Law School
  • 13. US: Application of Clean Air Act •  Massachusetts v EPA •  National Fuel Efficiency Policy •  Tailoring Rule •  Regional voluntary cap-and-trade systems Law School
  • 14. US: Legislative Proposals •  American Clean Energy and Security Bill (Waxman-Markey) •  Clean Energy Jobs and American Power Bill (Kerry-Boxer) •  No new legislation expected Law School
  • 15. EU Response •  Negotiation of a ‘bubble’ for emissions •  Overall target: reduction of 8% •  Irish target: increase of 13% •  EU Emissions Trading Scheme (EU ETS) •  “20/20/20” target: –  by 2020, –  20% emissions reduction, –  20% use of renewables Law School
  • 16. •  Directive 2003/87/EC •  Two periods: 2005-2007 & 2008-2012 •  Cap-and-trade system •  Applies to some industrial activities (energy, ferrous metals, mineral industry, etc.) •  Allowances granted by governments, based on National Allocation Plan (NAP) –  2005-2007: at least 95% free –  2008-2012: at least 90% free
  • 17. ETS Penalties •  30 April each year: –  2005-2007: €40/tonne –  2008-2012: €100/tonne •  Linking Directive (2004/101/EC) –  Connected to JI/CDM
  • 18. EU: Emissions Trading Scheme (ETS) Issues •  Over-allocation of allowances •  Carbon leakage? •  Lack of real impact? •  Security issues Law School
  • 19. •  Directive 1999/94/EC on consumer information on car economy and CO2 emissions (under review) •  Decision 1753/00/EC on CO2 monitoring for new cars •  Regulation 443/2009/EC setting emission performance standards for new passenger cars •  Directive 2001/77/EC on renewable energy sources •  Directive 2009/28 on renewable energy •  Directive 2003/30/EC on biofuels (to be replaced by Directive 2009/28)
  • 20. •  Directive 2008/101/EC to include aviation in the EU ETS •  Directive 2002/91/EC on the energy performance of buildings •  Directive 2003/96/EC on taxation of energy products •  Regulation 842/2006/EC on certain flourinated greenhouse gases (and related technical regulations)
  • 21. Other European Legislation •  Directive 2009/31/EC on carbon capture and storage •  Changes to Fuel Quality Directive and Energy Performance of Buildings Directive •  Effort Sharing Decision (406/2009/EC) – Irish target: -20% reduction in emissions
  • 22. •  2000: National Climate Change Strategy launched •  ‘Business as usual not an option’ •  Key initiatives in NCCS: –  Carbon energy taxation –  Use of emissions trading –  Measures supportive of ending coal-firing at Moneypoint –  Fuel switching to low and zero carbon fuels –  Livestock reductions and lower fertiliser use –  Fuel efficiency, demand management and modal shift in transport –  Energy efficiency in construction –  Adjustment of the new house grant
  • 23. •  Excise relief for biofuels •  Domestic emissions trading linked with EU ETS •  Carbon tax abandoned September 2004 •  Moneypoint still open, retrofit approved •  Back to ‘business-as-usual’?
  • 24. •  April 2007: National Climate Change Strategy •  Projected emissions: 80 MtCO2E •  Kyoto target: 63 MtCO2E •  Reduction of 17 MtCO2E required
  • 25. •  Energy: ETS, renewable energy •  Transport: Transport 21, car technology improvements, support for biofuels •  Residential: Building Regulations amendments •  Industry: ETS, voluntary Large Industry Energy Network, support for bioheat and CHP •  Agriculture and Forestry: CAP reform, afforestation •  Waste: diversion of biodegradable waste, landfill gas capture •  Public Sector: CFL bulbs, energy savings by OPW, carbon offsets for air travel, biomass heating in schools
  • 26. •  Flexible Mechanisms –  3.6 MtCO2E purchase –  Anticipated annual cost of €54 million •  Climate Change Commission •  Annual Implementation Status Report (replaced by carbon budgets) •  EPA to prepare emissions reports and projections •  New Climate Change Strategy to be prepared
  • 27. •  Environmental Protection Agency Act 1992 (as amended by Protection of the Environment Act 1992) •  Sustainable Energy Act 2002
  • 28. •  European Communities (Greenhouse Gas Emissions Trading) Regulations 2004 (SI 437/2004) •  Kyoto Protocol Flexible Mechanisms Regulations 2006 (SI 244/2006) •  European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2005 (SI 706/2005)
  • 29. •  Building Regulations (Amendment) Regulations 2005 (SI 873/2005) •  European Communities (Energy Performance of Buildings) Regulations 2006 (SI 666/2006) •  Building Regulations (Amendment) Regulations 2007 (SI 854/2007)
  • 30. •  Planning and Development Regulations 2007 (SI 83/2007) •  Planning and Development Regulations 2008 (SI 235/2008)
  • 31. •  Carbon Fund Act 2007 •  Motor Vehicle (Duties and Licences) (No. 2) Act 2008 •  Planning and Development (Amendment) Act 2009 •  Energy (Biofuel Obligation and Miscellaneous Provisions) Act 2010 •  Private Members Bills
  • 32. Ireland: Carbon Budget 2010 •  Carbon levy: €15 per tonne of carbon dioxide •  Framework for Climate Change Bill Law School
  • 33. Government: Climate Change Bill •  Target: average 3% annual reduction on 1990 to 2020; 80% by 2050 •  National Climate Change Strategy: statutory basis •  Carbon Budget: also statutory basis •  Climate Change Committee: statutory, high level experts •  Change Change Adaptation: statutory, 8 year cycle •  Domestic Carbon Offsetting/Trading •  Monitoring, Reporting and Statutory Obligations Law School
  • 34. Joint Committee: Climate Change Bill •  Target: 20% reduction on 2005 by 2020; 30% if successor to Kyoto Protocol •  Office of Climate Change and Renewable Energy: part of Department of An Taoiseach •  National Climate Change Strategy: annual, by Taoiseach •  Climate Change Commission: independent •  Climate Change Dividend Fund: revenue from auctions, taxes •  Offset schemes: including forest carbon offsets •  Risk assessment: every 5 years •  Climate change statements: from significant public authorities and bodies Law School
  • 35. •  2001: 31% •  2002: 29% •  2003: 25% •  2004: 23.7% •  2005: 26.7% •  2006: 25.6% •  2007: 25% •  2008: 3.99% •  2009: 2.23%
  • 36. Influences on the Future •  Better understanding of sustainability issues •  Economic recession •  Smaller-scale agreements between groups of states •  Increasing media scrutiny and hostile public comment Law School
  • 37. Possible Future Responses •  Voluntary industry schemes •  Public procurement criteria •  Expansion of ETS •  Public awareness campaigns •  Product labelling •  Financial instruments: carbon taxes & subsidies •  Individual carbon credits (‘carbon rationing’) 37
  • 38. The Future •  UNFCCC process in trouble? •  Bilateral and small-scale multilateral treaties? •  Climate Change Act 201x? Law School