Why the Law of Climate Change Matters: From Paris to a Local Government Near You.

AuthorDeady, Erin L.
PositionEnvironmental and Land Use Law

Climate change has received much national attention recently, but the laws, regulations, issues, and caselaw evolution, have a history that is not well known. International strategies are one important element in solving the climate change challenge. Impacts locally such as street flooding, compromised drainage, habitat and species changes, accountability, and liability confluence bring a new reality to the importance of understanding what is being done, or not done, at all levels of government. This article summarizes the climate change law highlights at the international, state, and local levels and provides insight as to why it matters.

The International Context

* Efforts Before the Paris Agreement

--On May 9, 1992, the United Nations Framework Convention on Climate Change (UNFCCC) was adopted, framing the climate challenge and initial strategies to solve it. (1) Today, 197 total countries are signatories. (2) The UNFCCC serves as a "framework for international cooperation to combat climate change by limiting average global temperature increases and the resulting climate change, and coping with impacts that were, by then, inevitable." (3) The United States was one of the first nations to sign and ratify it as a treaty through Senate action on October 7, 1992. (4)

The Kyoto Protocol, adopted in 1997, extended the 1992 UNFCCC. (5) It became effective in 2005, (6) and there are currently 192 parties. (7) It was driven by the acknowledgment that global warming impacts are due to man-made C[O.sub.2] emissions. The key difference with this protocol was the "internationally binding emission reduction targets" based on reductions below individual countries' 1990 emissions levels. (8) The U.S. signed the protocol in 1998, but failed to ratify it through Senate action. (9) On December 7, 2009, the UNFCCC parties met in Copenhagen, Denmark. With little success during the meetings, on the final day, the U.S., China, India, and Brazil drafted the Copenhagen Accord, simply encouraging greenhouse gas (GHG) reductions to prevent temperature increases past two degrees Celsius ([degrees]C). (10)

* 2015 Paris Agreement--On December 21, 2015, the UNFCCC's Paris Agreement (2015) was adopted, which became effective on November 4, 2016 (30 days after ratification by 55 countries accounting for at least 55 percent of global emissions). (11) After signing, the parties can join through a process dictated by each individual legal system, (12) which can include an instrument of "ratification, acceptance, or approval." (13) Currently, there are 197 parties to the 2015 Paris Agreement and 149 countries have ratified, including the United States. (14) The primary goal of the 2015 Paris Agreement is to keep the global rise in temperature well below 2[degrees]C, and to pursue limiting the increase to 1.5[degrees]C. (15) It was determined that this marker would prevent the worst impacts of climate change, such as rising sea levels and severe droughts. (16)

Parties committed to nationally determined contributions and their own GHG mitigation strategies to achieve them, as well as public reporting on emissions and implementation efforts. (17) The 2015 Paris Agreement accounts for differing capabilities of countries, and although nonbinding in nature, it is legally binding with respect to 1) consistently assessing mitigation plans; and 2) performing to the full extent of the nation's ability. However, there is no penalty process for failure to meet these binding aspects. (18) Climate funding is another element of the 2015 Paris Agreement through voluntary contributions into the Green Climate Fund, which recognizes that not only do different countries' emissions vary immensely, but so do their financial abilities to mitigate and adapt. (19)

The instrument the U.S. used to ratify the 2015 Paris Agreement has been questioned. Article 4 of the Paris Agreement does not create a new international legal obligation because there is no binding legal reduction target. It builds upon and reinforces commitments already made under the UNFCCC, which was ratified by the Senate. As such, the 2015 Paris Agreement is an executive agreement. Some groups state that the 2015 Paris Agreement is really a treaty, thus, requiring approval by two-thirds of the Senate under the treaty clause in U.S. Const. art. 2. (20) Many cases have discussed the standard for a treaty, and affirm the right of the president to enter into executive agreements that are not required to be ratified by the Senate. More than 90 percent of binding international agreements are undertaken as executive agreements. (21) In June 2017, President Trump announced the U.S. will withdraw from the 2015 Paris Agreement on November 4, 2021, pursuant to art.

28 of the Constitution. (22)

Several states and local governments committed to uphold targets under the 2015 Paris Agreement and remain committed to it. (23) Content is the key to the commitments, particularly with local governments. The extent of the commitment to meet GHG reduction targets and how that commitment is implemented, could result in important policy and legal questions. There also is a growing body of climate change-related lawsuits.

The Federal Context

Numerous executive orders, agency directives, planning efforts, and targets were undertaken or mandated under the previous White House administration. This article focuses on a narrow subset. It is clear the new administration's stance on these initiatives is shifting.

* U.S. Army Corps of Engineers --In 2000, sea-level-change considerations were included within the Corps' planning guidance notebook. Engineering circulars and guidance have been in place to address sea-level rise in civil works projects since 2009. The latest guidance went into effect in 2016, expiring in 2018. (24) The Corps also has tools to create vulnerability assessments of nondeveloped natural coastlines or beach protection projects updated for use with this sea-level guidance. These procedures do not apply to the Corps' regulatory review of permits for private action; rather, they focus on Corps projects supported by congressional funding and authorization, or civil works projects.

* National Environmental Policy Act (NEPA)--On August 5, 2016, the White House's Council on Environmental Quality (CEQ) released guidance on how federal agencies should evaluate GHG emissions and climate change impacts when conducting NEPA reviews for proposed federal actions. (25) The focus was on the long-term viability of the project, tying design of alternatives to climate change effects for the useful life of that project. This is especially important for projects in vulnerable areas.

President Trump's March 28, 2017, executive order, "Promoting Energy Independence and Economic Growth," directed CEQ to rescind this guidance...

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