By Xiaoyi Wang

Picture: Globe License: Public Domain

In 2017, because of the changes in administration, environmental enforcement policies around the world have changed.

United States of America

In the United States, the Trump Administration has brought uncertainty to the US enforcement picture. All enforcement constituencies (state agencies and environmental groups) are still assessing what roles and strategies to take as directional shifts at the federal level will likely influence responses by states and NGOs. The shift of administration led to EPA enforcement moving back to the "traditional" environmental programs – air, water, waste.

European Union

The European Commission has conducted a broad EU Environmental implementation review (EIR). The EU also adopted new rules (Dec. 2016) for member states to reduce air pollution by primary particulate matter, sulphur dioxide, nitrogen oxides, ammonia and volatile organic components. In addition, the EU has set out environmental plans and proposed initiatives to achieve their 2020 goals.

China

China has implanted tougher environmental policies in 2017, a great expansion under President Xi’s “War on Pollution” initiative. In 2017, China also shut 27 coal mines in Shanxi and shutdown responsible corporate actors around China to control air pollution.

The Paris Climate Agreement

The Paris Agreement is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC) dealing with greenhouse gas emissions mitigation, adaptation and finance starting in the year 2020. President Trump announced in June that the United States will withdraw from the Paris Agreement. The Trump administration has made it abundantly clear that fighting climate change is, at best, a low priority.  Many are unsure whether the Paris Agreement framework will still work if the United States indeed withdraws from the agreement. In accordance with Article 28 of the Paris Agreement, the earliest possible effective withdrawal date by the United States cannot be before November 4, 2020, four years after the Agreement came into effect in the United States and one day after the 2020 U.S. presidential election.

The Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol)

The Montreal Protocol celebrated its thirty years on September 16, 2017. After thirty years of enforcement, the treaty has been ratified or accepted by all 197 UN member states. As one of the most successful and effective environmental treaties ever negotiated and implemented, the Montreal Protocol has helped reduce the depletion of the ozone layer by about 20 percent from 2005 to 2016.

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March 08, 2018

By Archita Mohapatra*

Photo: Washington Paris Agreement Protest, Creative Commons License

US energy polices have been in controversy since the advent of the Trump administration. The D.C. Circuit Court of Appeals ordered on August 8, 2017, to stay all proceedings in West Virginia v. EPA for another 60 days i.e.until the EPA submits a concrete report on the operation of the Clean Power Plan (CPP). This plan was devised during the Obama administration to reduce the emission of carbon dioxide (CO₂) by power generators. The states were required to meet specific standards in order to fulfil individual reduction targets. The dispute over the implementation of the CPP arose when North Dakota filed an application against the EPA to stay the execution of the plan, which was first rejected by the D.C. Circuit Court. A month later, West Virginia and several other states filed stay applications. This application was accepted and the US Supreme Court granted the stay on the operation of the CPP on February 9, 2016. A year later, the Trump administration issued an Executive Order on March 28, 2017 directing the EPA to review the CPP in order to examine its legality and to repeal or revise the plan executed by the Obama administration. The order characterized the plan, as well as other existing energy laws, as impediments to US energy independence.  The order was provided for review and thus brought the CPP to an operational standstill.  Since the review is ongoing, the D.C. Circuit Court of Appeals ordered the consolidated cases on operation of the CPP be held in abeyance for another 60 days on April 28. Given the announcement of US withdrawal from the Paris Agreement in June, 2017, the CPP is not expected to be put into operation after the review.

The EPA proposed the CPP in 2014 and it came into effect in October 2015. It was formulated to reduce the CO₂ emissions of existing power plants by 32 percent from 2005 levels by 2030, with specific targets to be maintained by respective states. This step was carried out during the Obama administration with the intention of meeting the reduction targets set by the US under the Paris Agreement. However, the Trump administration defunded the CPP in its 2018 federal budget proposal. Moreover, Trump’s opposition to the obligations under the Paris Agreement removed the motivation for the CPP. He received support from various states, which showed had opposed the reduction targets set under the plan. After the order by the D.C. Circuit Court of Appeals on August 8, all litigation proceedings have been put on hold until the EPA decides to either repeal or revise the CPP. The report by the EPA would also help decide the matters relating to the operation of the CPP, put forth by different states.

After the US’s announcement of withdrawal from the Paris Agreement, various cities, states and corporate groups have taken up the responsibility to maintain their individual targets towards implementing the Agreement. The Agreement allows only nations or regional economic integrations to be parties. However, the UNFCCC has provisions to also involve non-party stakeholders, viz. states, residents, corporate bodies, etc. called the Non-State Actor Zone for Climate Action (“NAZCA”) Portal. It is a platform for reflecting climate-related commitments by non-state actors which are exercised by the states, cities and business organizations of the United States.  Around 12 states, as well as Puerto Rico, have come together to form a United States Climate Alliance, a separate entity to uphold the commitments of the US made under the Paris Agreement. Reportedly, two Republican governors, namely Charlie Baker and Phil Scott have decided to support Democrats in forming the alliance for combating climate change. In addition, several mayors have also defied the Trump’s administration’s decisionwithdraw from the Paris Climate Agreement. The United States Conference of Mayors strongly opposed the withdrawal from the Paris Agreement, and vowed to continue with their efforts to fulfil the reduction targets. Adding to this, around 98 mayors have pledged their support for a community wide transition to 100% renewable energy under Sierra Club’s “Mayors for 100% Clean Energy.”

On June 6, Hawaii passed a law to remain committed towards the Paris Agreement. The State Senate of California passed a bill towards the end of May to receive all its energy from renewable and zero-carbon sources by 2045. Governor Andrew Cuomo has initiated an energy strategy for New York called Reforming the Energy Vision (REV). It aims to achieve a 40% reduction in Green House Gases from 1990 levels, mandates that 50% of electricity generated must come from renewable sources, and a reduction of energy consumption by buildings by 23% from 2012 levels. Individuals have also stepped up to address this issue as former New York mayor and UN envoy for Climate Change Michael Bloomberg has pledged to contribute USD 15 million towards any gap that is created after the withdrawal of the US. 

Currently, the Trump administration is designing a replacement plan for the CPP. One of the industry groups, Coalition for Innovative Climate Solutions, has proposed a replacement plan for the CPP which gives greater flexibility to states to choose their own compliance plans. However, it has not been accepted by other countries since they are relying upon the US Government to frame a replacement plan. With this replacement plan in process, the CPP might be gone for good. But, in this author’s opinion, the non-party stakeholders could fulfill the objectives of the Paris Agreement, irrespective of any legal obligations as required under CPP.

*Archita Mohapatra is a law student pursuing a B.B.A.LL.B at National Law University Odisha.

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November 25, 2017

By Aure Demoulin

Spurred by a sense of urgency and increasing global recognition that environmental deterioration is a pressing issue, several key developments took place in international environmental law in 2016. In addition to the Paris Agreement, 2016 was the year of the first-ever global agreement cutting pollution from commercial airlines, the Marrakech Summit, and environmental lawsuits on behalf of future generations.

First Meeting of the Prep Com: The UN General Assembly established a Preparatory Committee (Prep Com) to receive recommendations for an internationally binding legal agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. The Prep Com held its first meeting from March 28 to April 8, 2016 and discussed the relationship between the proposed instrument and other existing agreements, as well as marine genetic resources, benefit-sharing, environmental impact assessments, capacity building, and marine technology transfer. The sustainable but efficient use of ocean resources is a hot topic in environmental law, and the Prep Com’s first meeting only preceded the third edition of the Hamburg International Environmental Law Conference by a few days. The Conference debated ways to conserve the oceans’ ecosystems, as well as the role International Environmental Law should play in regulating activities such as deep sea mining, marine energy generation, seabed pipeline and cable systems.

Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA): The Carbon Offsetting and Reduction Scheme for International Aviation is the first-ever global agreement to cut greenhouse gas emissions from commercial airlines. Announced on October 6, 2016, this sweeping deal aims to curb carbon dioxide emissions from the international aviation sector, as well as aviation pollution’s effect on climate. The deal will be implemented in phases (participation in the early years being entirely voluntary) and aims to put the industry on a path toward more sustainability. 191 nations have expressed intent to voluntarily participate.

Kigali Amendment to the Montreal Protocol: On October 15, 2016, 197 countries endorsed the Kigali Amendment to the Montreal Protocol. The amendment aims to curb the production and consumption of hydrofluorocarbons (HFCs), powerful greenhouse gases, by more than 80 percent over the next 30 years in the hope to prevent up to 0.5 degrees Celsius (0.9 F) of global warming by the end of this century. Manufacturers have used HFCs to replace chlorofluorocarbons (CFCs)—phased out under the Montreal Protocol—as refrigerants in a variety of products. The amendment calls for developed countries to start reducing their consumption of HFCs by 2019 and for most developing countries to freeze consumption by 2024 or 2028. The new amendment pledges to provide funding for climate-friendly alternatives in developing countries.  

The Paris Agreement: The Paris Agreement is an agreement within the UN framework Convention on Climate Change (UNFCC) meant to strengthen the global response to climate change. The agreement aims to curb greenhouse gases emissions in order to prevent a global temperature rise of more than 2 degrees Celsius (3.6 F). After 195 countries negotiated the agreement, final language was adopted on December 12, 2015, and the agreement was opened for signature on April 2, 2016. As of December 2016, 194 UNFCC members had signed the treaty, 132 of which had ratified it. In October 2016, enough countries had ratified the agreement for it to enter into force. As a result, the agreement went into effect on November 4, 2016.

The Marrakech Summit: The twenty-second session of the Conference of the Parties (COP 22), the twelfth session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP 12), and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA 1) were held in Bab Ighli, at the Marrakech Summit, Morocco from November 7-18, 2016. The Conference successfully demonstrated to the world that the implementation of the Paris Agreement is underway and that cooperation on climate change continues.

Global Lawsuits on Behalf of Young and Future Generations: In 2016, a global trend of lawsuits filed on behalf of future generations continued in the United States with a case filed in an Oregon District Court. The plaintiffs argued that by failing to protect public trust resources like water and air, the federal government is violating their constitutional rights to life, liberty, and property. Similarly, in June 2016, the Pakistan Supreme Court ruled in favor of seven-year-old petitioner Rabab Ali, allowing her constitutional climate change lawsuit to proceed. Yet another similar case is currently underway in the Philippines. In 2015, the Hague District Court in the Netherlands had ruled in favor of the Urgenda Foundation (representing multi-generations of citizens), compelling the government to reduce Dutch greenhouse gas emissions by 25% by 2020 (making current Dutch climate policies, which aim only for a 16% reduction, unlawful).

CETA: The EU-Canada Comprehensive Trade Agreement (CETA) is a new trade agreement between the EU and Canada. The European Parliament voted to adopt CETA on February 15, 2017, though EU national parliaments must approve the agreement before it can take full effect. However, throughout 2016, member of the European Parliament, such as Bart States, and public interest organizations had called for the rejection of CETA. States had warned that CETA risked undermining regulatory measures with regard to endocrine disruptors, which are estimated to cost Europe well over 150 billion Euros each year in additional health expenses. The European Commission has already acknowledged that mounting pressure from EU trade partners has led it to propose to lower standards of protection against endocrine disruptors. With CETA, Canada and Canadian businesses will be given increased leverage to pressure the EU not to introduce precautionary laws.

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March 31, 2017

by Navy Thompson

Photo: Flickr.com/UNclimatechange

On November 4, 2016, the world’s first binding, universal global climate change agreement became international law.

The Paris Agreement has officially entered into force after achieving its threshold conditions: more than fifty-five countries that together account for at least an estimated fifty-five percent of worldwide greenhouse gas emissions have become parties. According to the United Nations Framework Convention on Climate Change’s web page, 100 parties have so far ratified the Agreement as of November 6, while another ninety-seven have yet to take such actions. Countries that have ratified the Paris Agreement and who have thus pledged to take substantial measures to combat climate change are some of the world’s biggest greenhouse gas emitters, including the United States and China.

Initially adopted on December 12, 2015, during the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change, the Paris Agreement aims to combat climate change and its effects internationally through concerted efforts to decrease greenhouse gas emissions and their impacts. Accordingly, the Agreement aims to hold the future increase in the global average temperature below 2 degrees Celsius above pre-industrial levels, as well as to make efforts to limit the rise in temperature to 1.5 degrees Celsius above pre-industrial levels during the twenty-first century. It also aims to bolster countries’ abilities to manage the impacts that will likely result from future climate change, in part through the strengthening and financing of climate resilience and development involving low greenhouse gas emissions.

However, exactly how the international community and individual countries implement the Paris Agreement remains to be seen. Governments have to submit their own action plans detailing how they will mitigate and manage the impacts of climate change nationally, as well as their efforts to reduce emissions of greenhouse gases. Each government’s plan to combat climate change nationally will then be augmented over time, and will be replaced by more aggressive measures every five years. Country representatives will gather at the COP22 climate change meeting in Marrakesh, Morocco from November 7-18 to discuss details regarding the Paris Agreement’s implementation.

While many in the scientific community have praised the speed with which the Paris Agreement has come into force (previous projections gave 2020 as the year it would likely take effect), the United Nations Environmental Program (UNEP) has expressed continued concern for the future of the global climate. UNEP believes that the international community will need to decrease yearly greenhouse gas emissions by twelve to fourteen billion metric tons before 2030 for limiting climate change to below 2 degrees Celsius (3.6 degrees Fahrenheit) to be feasible. Even taking account of the promised reductions included in the Paris Agreement, the planet will likely still experience 2.9 to 3.4 degrees Celsius of warming, well above the desired figures.

Time will tell how effective the Paris Agreement will truly be in achieving its goals as countries develop and implement their own plans for reducing the emission of greenhouse gases and for fighting climate change more generally. What is clear now is that the Paris Agreement marks a positive and unprecedented historical initiative in the global effort to combat climate change and to protect the world’s people and environments from its effects. More broadly, it may pave the way for a more coordinated and united international political and legal community—one that is ready and prepared to tackle the world’s challenges as they arise.

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November 06, 2016