Unlocking Willpower and Ambition to Meet the Goals of the Paris Climate Change Agreement (Part Two): The Potential for Legal Reform and Revision

Date01 February 2017
AuthorRobert B. McKinstry Jr., Thomas D. Peterson, and Steven Chester
2-2017 NEWS & ANALYSIS 47 ELR 10135
Unlocking Willpower
and Ambition to
Meet the Goals of
the Paris Climate
Change Agreement
(Part Two): The
Potential for Legal
Reform and Revision
by Robert B. McKinstry Jr., omas D.
Peterson, and Steven Chester
Robert B. McKinstry Jr. is the Practice Leader of Ballard Spahr’s
Climate Change and Sustainability Initiative. omas D. Peterson
is the President and CEO of the Center for Climate Strategies.
Steven Chester is an attorney with the Miller Caneld Law
Firm and current Chair of the Center for Climate Strategies.
In a previous Comment, 46 ELR 11024, the authors
examined t he nexus between “willpower” and “ambition”
in the context of the Paris Agreement, and identied key
elements of an integrated, systematic, and strategic treat-
ment of each through law and policy. In this A rticle, they
explore legal mechanisms that could close the gaps in ca r-
bon reduction implementation in the United States and
also meet critica l conditions needed to build willpower.
e incoming Ad ministration’s focus on reform and revi-
sion calls into question some current approaches to climate
change, but also may provide carbon reduction opportuni-
ties through proposed actions on infrastructure, national
security, and other matters driven by immediate priorities.
Pragmatic actions within U.S. states and localities, federal
executive agencies, and Congress could be a good place to
start to integrate such goa ls and charter a more systematic
and strategic framework to move carbon reductions to the
level required by the Paris Agreement.
In our initial Comment,1 we noted that the 21st
Conference of the Parties (COP21) of the United
Nations Framework Convention on Climate Change
(UNFCCC)2 Paris Agreement established signicant new
goals for all Parties. e Agreement “brings all nations
into a common cause to u ndertake take [sic] ambitious
eorts to combat climate change and adapt to its eects,”3
and includes goals of “[h]olding the increase in the global
average temperature to well below 2° [Celsius (C)] above
pre-industrial levels and pursuing eorts to limit the tem-
perature increase to 1.5°C above pre-industrial levels.”4
Additionally, the Agreement states that “[a]ll Parties should
strive to formulate and communicate long-term low green-
house gas emission development strategies.5 ese goals
are conditioned by feasibility, need, and circumstance, as
stated in Article 4:
In order to achieve the long-term temperature goal set
out in Article 2, Parties aim to reach globa l peaking of
greenhouse gas emissions as soon as possible, recogniz-
ing that peaking w ill take longer for developing country
Parties, and to undertake rapid reductions thereafter in
accordance w ith best available science, so as to achieve a
balance bet ween anthropogenic emissions by sources a nd
removals by sinks of greenhouse gases in the second half of
this centur y, on the basis of equity, and in the context of
sustainable development and eorts to eradicate poverty.
To i mplement these objectives, the Paris Agreement
requires Par ties to make commitments to emission limi-
tations known as intended nationally determined con-
tributions (NDCs),6 and to upd ate those commitments
periodical ly as they are implemented. N DCs provide a
1. omas D. Peterson et al.,   
      
Law, Policy, and Economics, 46 ELR 11024 (Dec. 2016).
2. UNFCCC, June 4, 1992, 1771 U.N.T.S. 107, available at http://unfccc.int/
3. UNFCCC, e , http://unfccc.int/paris_agreement/items/
9485.php (last visited Dec. 15, 2016).
4. United Nations Paris Agreement, art. 2, §1(a), available at http://unfccc.
int/les/essential_background/con vention/application/pdf/english_p aris_
5. Id. at art. 4, §19.
6. Note that on September 3, 2016, the United States ratied the Paris
Agreement, and at that time, its “Intended” Nationally Determined
Contribution, or INDC, became its “Nationally Determined Contribution
in Forestry and Environmental Resource Conservation at the Pennsylvania
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      
          
         
      
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
golden oppor tunity for free and open choice on specic
national approaches toward the establish ment and imple-
mentation of climate change commitments. e NDC
mechanism is an outgrow th of policy evolution follow-
ing experience w ith the Kyoto Protocol and the need for
stronger levels of self-determination and empowerment
for all nations.7
We also noted in our initia l Comment that, to date, the
UNFCCC ha s formally approached ambition as a matter
of environmental stringency in the form of greenhouse gas
(GHG) emissions goals.8 In terms of policy commitments,
these goals are subject to national determination and a re
the equivalent of “talking the talk” toward new mitigation
actions unless, and until, they are actually implemented.
While ambition is formally articulated within various
agreements and activities of the COPs, it has not yet been
paired with a formal, parallel concept of willpower—or
“walking the walk”—by enabling the conditions and activ-
ities needed to achieve GHG mitigation goals.
e absence of the concept of willpower and its mani-
festation in U NFCCC programs and guidance represent
a gap in t he formulation of international climate change
law and policy that poses a major strategic challenge and
opportunity. We identied ve specic conditions needed
to expand willpower to match ambition:
1. Alignment of climate change law and policy with
national vision and priorities
2. Assurance of capacity needed to implement, includ-
ing manpower and money
3. Improvement of public support and collaboration
through public involvement in policy formulation
and implementation
4. Provision of freedom of choice on preferred low-
carbon policy approaches
5. Access to eective tools for locally applied low-car-
bon policy and implementation decisions
In this Ar ticle, we note that the legal and policy prefer-
ences expressed by the incoming Donald Trump Admin-
istration call into question “business-as-usual” approaches
to climate cha nge, but nonetheless might provide several
carbon reduction opportunities through actions on infra-
structure, national security, and other matters, if combined
with strategies to build wil lpower and ambition. We expect
opportunities to expa nd willpower a nd ambition in the
United States, as well as in other nations, to arise through
a variety of ways, including:
• Development of new law and policy through direct
means (climate change actions per se, including single-
or NDC. For ease of reference, the authors use the acronym NDC
throughout this Article.
7. Prior to the formal adoption of this mechanism in the Paris Agreement,
the commitments were referred to as Intended Nationally Determined
Contributions, or INDCs, and that terminology is still used frequently.
8. Peterson et al., supra note 1.
sector and multisector approaches) as well as indirect
means (e.g., energy and economic policy integration,
including piecemeal and broader-scale actions).
• More creative appl icat ions of e xisting law and
polic y, includin g c ertain act ions th at can be
forced by litigation.
In the A rticle, we explore legal mecha nisms that could
integrate willpower and ambition and close the gaps in car-
bon reduction implementation under the Paris Agreement,
particularly with better use of existing law in t he United
States. We also comment briey on the characteristics of
successful legislative approaches based on past experience.
Legal mech anisms have ta ken on a heightened sig-
nicance following the change in U.S. administrations
and t he possibility that prior U.S. commitments may be
signicantly altered. e mandatory duties to prevent
endangerment of health and the environment throughout
the Clean Air Act (CAA),9 as well as other authorities,
provide potential mechanisms both to preser ve exist ing
progress and to provide expanded support for programs
that achieve nece ssary reductions across all sectors of the
economy by means that also build willpower for such
actions. Relia nce on existing legal mecha nisms alone may
be insucient to produce the emissions reductions on a
time line that will result in achieving the Paris climate
goals. i s may necessitate new legislat ive and policy
approaches t hat advance national priorities and meet
other conditions of willpower that are needed, such as
meeting the new administration’s interest in promoting
infrastructure development and job growth.
Methods to enhance ambition and match it w ith wil l-
power are critica lly important, as cu rrent NDC est imates
will allow global average temperature to rise 4°C above
pre-industrial levels. e Paris goal of 2°C stabilization
requires signicant GHG reduction, and t he secondary
1.5°C stabilization goal will require even more. Achieve-
ment of either goal w ill require that policies be developed
and integrated over all sectors of the economy and be
implemented more fully and expeditiously than contem-
plated by many of the NDCs. As noted in our initial Com-
ment, this will necessitate an approach that integrates a
series of willpower requirements.10
Existing laws in the United States and elsewhere ca n
support pathways for climate stabilization that also provide
momentum for building political and economic willpower
and a mbition. In the United States, the CA A provides a
mechanism that may a llow states to employ the types of
measures that achieve these broader goals a nd conditions,
but it will require a shift away from narrow technology-
based, single-sector approaches. State planning eorts have
already shown that multi-objective, multisector, participa-
tory, implementation-driven policy development processes
that incorporate investment, capacity, and governance
9. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
10. Peterson et al., supra note 1.
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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