Introductory Remarks

Author:Charles E. Di Leva
Position:Lead Counsel in the Environmental and International Law Unit of the World Bank Legal Department
Pages:4-5
 
CONTENT
4SUSTAINABLE DEVELOPMENT LAW & POLICY
INTRODUCTORY REMARKS
by Charles E. Di Leva*
The path toward an international climate framework was
intensely debated in Durban at the seventeenth meeting
of the Conference of the Parties (“COP17”) to the
United Nations Framework Convention on Climate Change
(“UNFCCC”), which took place between November 28 and
December 9, 2011.1 It was not until two days after the sched-
uled close of the Conference that the Parties were able to forge
a compromise.2
This landmark decision was noted worldwide.3 The
UNFCCC’s 195 State Parties overcame substantial negotiating
differences, committing to adopt a decision by 2015 that would
contain emission reductions applicable to both developed and
major emitting developing countries, with the decision coming
into force by 2020.4 Parties also agreed to submit proposals on
the path toward this decision as part of the “Durban Platform”
as soon as three months after the close of COP 17.5 With China,
India, and the United States hammering out the final details of
the agreement, this compromise seemed a historic step forward.6
Even with a compromise agreed upon in Durban charting
the path toward a global agreement, the situation surrounding
climate law remains troubled. This concern became clear the
Monday following the Durban agreement, when carbon markets
sank.7 The situation for carbon markets several months later
is no better, even in light of the European Union’s legal commit-
ment to twenty percent emissions reductions by 2020, and its
related emissions trading scheme.8
Why do these concerns remain so prominent, and what
challenges do they pose for those committed to addressing what
many view as the greatest challenge facing humankind?
Economically, the concerns remain prominent because inter-
national environmental agreements are expensive to implement
and the responsibilities for historic emissions fall on countries
whose economies seem to face lower rates of growth than those
countries who have not assumed legally binding commitments.9
Thus, some challenges are indeed linked to the global economic
imbalance and recession. Others may reflect the problem
of having “climate winners and losers.” It has been noted that
global warming, and the resulting ice cap melt, may harbor
vast economic gains as mineral resources and shipping routes
become accessible for the first time.10 The resulting economic
and political imbalances make it difficult to forge a global regu-
latory framework that can enable a successful carbon market to
solidify and grow. Without such a framework, the private sector
that provides most of the world’s capital for clean energy may
well have less incentive to invest and the range of carbon legal
transactions may recede.
As well, within weeks after Durban, the political divide
between developed and developing countries was evident again.
As just one example, the Durban Platform submission by China
to the UNFCCC Secretariat of March 5th made it clear that the
principle of common but differentiated responsibilities had not
moved much from its initial inscription in 1992.11 Their submission
stated as follows:
Under the circumstances of a lack of finance and technol-
ogy support from the developed country Parties and being
confronted with the challenges of economic and
social development as well as poverty eradication,
developing country Parties have made their greatest
efforts to take mitigation actions, whose contributions
to mitigation are much greater than those of devel-
oped country Parties. Social and economic develop-
ment and poverty eradication are first and overriding
priorities of developing country Parties. Whether
the developing country Parties could enhance their
actions both on mitigation and adaptation depends
on the enhanced finance and technology supports
by developed country Parties.12
Despite these economic and political divisions, there is hope
for climate change and the law. Some hope for climate change
law can be gleaned by a historical perspective, as well as by some
recent developments and trends. From the historical viewpoint,
climate law and practice has shown steady growth with some
oscillation, notably linked to the current recession. Indeed, when
I attended the final UNFCCC negotiating session in 1992, it
would have been difficult to envision today’s plethora of climate
related courses, textbooks, blogs, and advocacy groups.
For the World Bank too, engagement in climate and related
legal work has continuously grown. At the carbon transaction
level, climate change efforts began in only two countries with
small pilot actions handling a few million dollars, up to the point
that the Kyoto Protocol became a reality.13 Today, the Bank man-
ages $2.5 billion in carbon funds, $7 billion in climate investment
funds (along with other development Banks), and has hundreds
of millions in renewable energy projects that are growing every
year.14 New funds dealing with United Nations Collaborative
Programme on Reducing Emissions from Deforestation and
Forest Degradation in Developing Countries “Plus” and related
land and agriculture projects are growing;15 the same is true for
*Charles E. Di Leva is Lead Counsel in the Environmental and International
Law Unit of the World Bank Legal Department. Since 1992 he has worked in
all geographic regions, specializing on issues pertaining to sustainable develop-
ment, such as carbon and green finance, development and implementation of
multilateral environmental agreements and national laws. He served as environ-
mental law advisor to the World Bank during the World Summit on Sustainable
Development in Johannesburg in 2002, and has represented the Bank in interna-
tional treaty negotiations in areas of Climate, Biodiversity, Chemicals and Wet-
lands. Mr. Di Leva is an adjunct professor at the George Washington University
School of Law teaching International Trade and Environment, and an adjunct at
the American University Washington College of Law teaching Legal Aspects of
Sustainable Development.
5WINTER 2012
carbon and climate related funds at many international organiza-
tions. Clean energy portfolios in all development organizations
are growing and here to stay.16 Not only do they make good
economic sense, they deliver social, environmental and health
benefits.17 Because of these results, and the trend of climate
science, there will continue to be regulatory regimes that sup-
port the development of climate law, as evident in regional
and domestic schemes. This is true of large regimes like the
European Union Emissions Trading Scheme, as well as single
jurisdictions like California.
Indeed, today, a wide range of climate friendly actions may
eventually qualify under the Durban Platform’s “new market
mechanism” or, in the case of projects in developing countries,
become eligible for support from the Green Climate Fund or
other financing mechanism, or may simply move ahead with
domestic funding alone.18 From developing countries, some of
these efforts will support their nationally appropriate mitigation
activities (“NAMAs”). Perhaps today’s climate law practitioners
can help China fulfill a commitment linked to its 12th Five Year
Plan.19 The plan aims to reduce emission intensity by forty to
forty-five percent from 2005 levels by 2020.20 Today’s practi-
tioners can help China establish a domestic emissions trading
scheme in cities and provinces with the objective of setting up a
national scheme in 2015.21 Lawyers will be needed in India as
well, as it proceeds with plans to reduce emissions and puts in
place a “performance and trade system.”22 Additionally, Brazil,
Indonesia, Thailand, and Vietnam, are just a few of the develop-
ing countries to join China and India in a World Bank-managed
Partnership for Market Readiness.23 This partnership will help
put in place domestic incentive measures such as laws and regu-
lations that help carbon markets to grow.24
Even without the development of carbon markets, the
Durban Platform recognizes that there is growing interest in
other sectors to effectuate measures to reduce emissions or
improve efficiency.25 These measures will require lawyers to
help develop laws, regulations, and innovative financial packages
that will help channel the necessary finance.26 Thus, going for-
ward from Durban, Parties can now submit proposals for carbon
emission reductions linked to carbon capture and storage,
provided that such activities have a solid domestic legal frame-
work.27 Similarly, projects that achieve reductions in emissions
from deforestation and forest degradation will have to be based
on a legal regime that can address a wide range of environmental
and social safeguards. Parties will also review submissions on
how to improve agricultural practices in a manner that sequesters
carbon as well. Many of these projects will also require a sound
understanding of relevant land law and other related legal mat-
ters. Lawyers will be needed in a wide range of related settings,
such as negotiations surrounding ways to address emissions
related to aviation and bunker fuels, or the heavily contested
litigation concerning the European Union Aviation charges.28
Perhaps most compelling, climate law practitioners will
be called upon to address a growing array of social challenges.
Science has demonstrated why we are witnessing climate migra-
tion due to sea level rise, or changing weather patterns. These
often tragic circumstances will require careful balancing of
rights and responsibilities, grounded in both international and
domestic law. In such settings, scientists will predict the pat-
terns, and economists will portray the costs, but lawyers will
have to shape just outcomes for the growing number of those
who are affected.
In sum, just as one could not have fully predicted in 1992
the wide range of legal talents the climate regime has absorbed
the past twenty years, it is equally uncertain the extent to which
lawyers will be necessary going forward. However, if the past is
a guide, the demands for climate change will only grow.
Endnotes: Introductory Remarks
1 See What is COP17/CMP7?, COP17/CMP7, http://www.cop17-cmp7
durban.com/en/about-cop17-cmp7/what-is-cop17-cmp7.html (last visited Apr.
3, 2012).
2 Paul Manning, COP 17 Climate Change Agreement in Durban: the Politics
of Compromise, EHS J. (Dec. 15, 2011), http://ehsjournal.org/http:/ehsjournal.
org/paul-manning/cop-17-climate-change-agreement-in-durban-the-politics-
of-compromise/2011/; see also Annalisa Savaresi, Int’l Center for Climate
Governance, The Durban Outcome: A Survey of Opinions (Jan. 2012), http://
www.iccgov.org/publications/files/reflections/01_reflection_january_2012.pdf.
3 Manning, supra note 2.
4 See Forum for Env’t, Summary of Durban Outcomes of the 17th Session of
the Conference of the Parties (COP17/CMP7), http://climatecapacity.org/files/
SVNews/Durban%20Report%20of%20ECSNCC.pdf; see also Savaresi, supra
note 2.
5 Manning, supra note 2.
6 Positive Outcome in Durban as US, China and India Agree to Work
Together, POINT CARBON (Dec. 12, 2011, 3:56pm), http://www.pointcarbon.com/
aboutus/pressroom/pressreleases/1.1700632.
7 Alessandro Torello, EU Carbon-Permit Prices Close Down After Durban
Deal, WALL ST. J. Online (Dec. 12, 2011, 12:49 PM), http://online.wsj.com/
article/SB10001424052970203430404577094443960862340.html.
8 See EU ETS Phase III (2013- 2020), U.K. DEPT OF ENERGY AND CLIMATE
CHANGE, http://www.decc.gov.uk/en/content/cms/emissions/eu_ets/phase_iii/
phase_iii.aspx (last visited Apr. 2, 2012).
9 See Savaresi, supra note 2.
10 See, e.g. Kathryn Isted, Sovereignty in the Arctic: An Analysis of Territorial
Disputes & Environmental Policy Considerations, 18 J. TRANSNATL L. & POLY
343, 347 (2009).
11 UNFCCC, Ad Hoc Working Group on the Durban Platform for Enhanced
Action, First Session, Bonn, May 17-24, 2012, China’s Submission on Options
and Ways for Further Increasing the Level of Ambition, U.N. Doc. FCCC/
ADP/2012/Misc.1, unfccc.int/resource/docs/2012/adp1/eng/misc01.pdf (last
visited Apr. 2, 2012).
12 Id. at 7.
13 Id.
14 Carbon Finance, THE WORLD BANK, http://web.worldbank.org/ (last updated
Aug. 2011); Summary of Funds and Facilities, THE WORLD BANK, http://
go.worldbank.org/MZZJZ5O4L0 (last visited Apr. 2, 2012); see generally 10
Years of Experience in Carbon Finance: Insights from working with carbon
markets for development & global greenhouse gas mitigation THE WORLD BANK
(Dec. 2009), www.carbonfinance.org.
continued on page 52