John Costenbader, IUCN Environmental Law Centre

1. Summary of COP15/CMP5 and evaluating the climate negotiations from a biological diversity perspective John Costenbader, IUCN Environmental Law Centre Forum Umwelt & Entwicklung / Deutscher Naturschutzring (DNR) 28. Januar 2010, Bonn

2. AGENDA • Road to Copenhagen • Copenhagen: LCA & KP outcomes • Copenhagen Accord • Legal Nature of CPH Accord • Perspectives on climate post-CPH • Biodiversity conservation post-CPH • Conclusions

3. I. Road to Copenhagen

4. Road to Copenhagen • Bangkok, Oct 2009: US proposes new regime • replaces Kyoto Protocol • based on bottom-up pledges from countries (developed and developing), as part of low carbon strategies, to be reviewed at [2?] year intervals • substitutes compliance with coreMRV: ‘peer review’ assessment of CC results, with economic considerations • Barcelona, Nov 2009: Low expectations for CPH • still no agreement on US proposal vs. keeping Kyoto • still no usable text(s) from LCA or KP processes • “I don’t think we can get a legally binding agreement by Copenhagen. I think that we can get that within a year after Copenhagen” - Yvo de Boer, 9 Nov 2009

5. II. Copenhagen: Developments in Working Groups & COP/CMP

6. Issues in Copenhagen Negotiations • ‘Background noise’ adds tension to process • Southern mistrust of North • “Leak” of a draft text from COP Presidency in first days • Northern mistrust of South • US unlikely to pass climate bill without Chinese agreeing to caps • Top down vs. Bottom Up Strategies • ‘Kyoto II’ or schedules for domestic actions and commitments • Confusion over non/legally-binding outcomes at Copenhagen • Barcelona agreed none, but Tuvalu legal proposals under LCA and KP • Chinese refusal to mention ‘legally-binding’ in CPH Accord text • NGO and outsider impatience with the process • Huge crowds inside & out; protests (resembling WTO & IMF processes) • Rift among the G-77 • AOSIS, LDCs, Africa & Vulnerable States disagree with BASIC & OPEC • China joins USA as heavyweight Party

7. Copenhagen: Limited progress in LCA & KP groups AWG-LCA: REDD+ • SBSTA decision adopted by COP: • Promotion of co-benefits (including biodiversity) • Requests Parties to identify drivers of deforestation and forest degradation • Encourages guidance on engaging local and indigenous communities • National circumstances to be considered in emissions and forest reference levels

8. Copenhagen: Limited progress in LCA & KP groups AWG-LCA: REDD+ • LCA draft text further developed: • Safeguardsincluded • Scope of REDD+ includes scope of Bali Action Plan • But important issues remain… • prior informed consent for indigenous peoples; • predictable, secure long-term finance commitment; • adequate measures to address leakage

9. Copenhagen: Limited progress in LCA & KP groups AWG-LCA: Adaptation (& Ecosystem-based Adaptation) • Continued work on draft text • Scope defined somewhat, though still vague: • country-driven, gender-sensitive, participatory approaches to adaptation, based on science and traditional knowledge and on the principle of common but differentiated responsibilities. • Adaptation action: • “building resilience of socio-economic and ecological systems, including through economic diversification and sustainable management of natural resources”.

10. Copenhagen: Limited progress in LCA & KP groups AWG-KP: Flexibility Mechanisms • Some progress in emissions reductions pledges, but still far below IPCC-recommended 25-40% aggregate level • Uncertainty regarding use of the three Kyoto flexibility mechanisms (Joint Implementation, Clean Development Mechanism, International Emissions Trading) complicates aggregating individual A1 pledges • Lack of transparency from Parties re: to what degree their pledges reflect use of mechanisms (and internal LULUCF) results in difficulty in capturing pledges as final ‘QELRO’s • Discussion around requiring supplementarity for use of flexibility mechanisms (either a % cap or text urging domestic action only)

11. Copenhagen: Limited progress in LCA & KP groups AWG-KP: Clean Development Mechanism • Agreement on improving baselines, monitoring, additionality • Executive Board to work on improved methodologies • Simplified additionality procedures for small-scale renewable energy • CMP Decision on improving regional distribution of CDM • Countries with <10 projects get fees waived, simplified financing; • Executive Board to devise top-down methodologies • SBSTA to assess forests in exhaustion in 2010

12. Copenhagen: Limited progress in LCA & KP groups AWG-KP: Land Use, Land Use Change & Forestry (LULUCF) • The importance of LULUCF: • Bad: Current LULUCF rules would add 2.3 GT CO2 to total A1 • Potentially worse: Proposed amendments could add ~7-10 GT • Draft decision on LULUCF presented to CMP requests SBSTA to begin review of land-based approaches • KP group refined options in draft text, including reference levels or caps on forest management accounting

13. CMP & COP Architectural Proposals • CMP: Proposals to modify or subsume Kyoto • China (BASIC et al): no revision to Kyoto, only update pledges • Tuvalu (AOSIS et al): Revise Kyoto legal structure and update pledges • NZ, JAP (Umbrella Group): Subsume Kyoto into new Protocol • Result: no agreement • Proposals to be included in COP-16 agenda • COP: Proposals for new protocol under Convention • Tuvalu, Costa Rica: New Protocol (for newcomers) and keepKyoto • AUS, JAP, USA: New Protocol from LCA text, to subsume Kyoto • Result: no agreement • Proposals to be included in COP-16 agenda

14. III. The Copenhagen Accord

15. Copenhagen Accord • In the last 48 hours, a rush to forge a deal: • Heads of State are now in CPH and want ‘results, now!’ • A group, deemed ‘representative’, of 20 HoS plus 9 HoD negotiates an agreement, in parallel to wider negotiations (Group represents 80% of global emissions) • Bilateral and smaller meetings in margins • Endgame is between US and BASIC countries, mainly China • EU sidelined (‘not in the room’ when deal was done) • Chinese concede on transparency - US drops long term global goal, legally-binding agreement, and offers money

16. CPH Accord on Mitigation • Accord agrees to keep temperature increase below 2o C, with a review by 2015 including that of a 1.5o C goal • No mention of carbon ppm concentration • Annex 1 (developed countries) to commit to “economy-wide” emissions targets for 2020 and to present commitments by 31 Jan. • Non-Annex I (developing) to list mitigation actions (NAMAS – national appropriate mitigations actions) by 31 Jan.

17. CPH Accord on Mitigation, cont. • Accord refers to REDD+, implying broader definition of REDD since Bali has been accepted • Par. 6 asks for the immediate establishment of a mechanism including REDD+ • Par. 7 leaves open possible market-based mitigation funding (including REDD+) • Par. 8 mentions “Copenhagen Green Climate Fund” (to include REDD+) anddeveloped countries as providing: • 30B USD for 2010-12 for adaptation and mitigation • 100 billion USD/year by 2020 for mitigation only.

18. CPH Accord on Adaptation • Par. 3 refers to adaptation very generally: • Adaptation definition includes potential impacts of response measures (e.g. to OPEC countries) • Mostvulnerable countries defined as: LDCs, SIDS and Africa. • General reference is made to the provision of finance, technology and capacity building to support adaptation.

19. III. Legal Nature of Copenhagen Accord

20. Legal nature of Copenhagen Accord • Why ‘taking note’ & not a COP decision? • Draft COP Rules of Procedure require consensus for COP decisions (here, four Parties spoke against Accord) • What does ‘Take note of…’ mean? • Less than ‘endorse’ or ‘decide’ but more than an ‘INF’ or ‘MISC’ from a few parties • “a way of recognizing that something is there, but not going so far as to associate yourself with it.” -Yvo de Boer

21. Legal nature of Copenhagen Accord, cont. • Accord endorses continued work under LCA and KP, but neither Decision formally recognized Accord • No formal link between processes: can’t assume either body will elaborate the details of Accord in 2010 • Lack of formality means Parties’ outside actions under Accord could provide more chances for ‘hütchenspeile’ in KP and LCA negotiations • Look for references to Convention Article 7.2 (c) as mandate to implement Accord in 2010 – (but unclear text) 7.2 (c) [the COP shall] Facilitate, at the request of two or more Parties, the coordination of measures adopted by them to address climate change and its effects . . .

22. Legal nature of Copenhagen Accord, cont. • “Immediately operational”: not so ‘immediate’ after all… • Accord is not an official UNFCCC document; • Institutions foreseen lack UNFCCC legal status • Countries can only operationalize parts of Accord not requiring COP decisions (i.e. domestic actions, with GEF, et al. coordination) • Appendix I “economy-wide emissions targets” (Annex I) • Appendix II “mitigation actions” (non-Annex I)

23. Legal nature of Copenhagen Accord, cont. • Parts of other elements likely must wait for COP-16 Decision: • High Level Panel (par. 9 “. . . under the guidance of and accountable to the Conference of the Parties . . .”) • Copenhagen Green Climate Fund (par. 10 “. . . as an operating entity of the financial mechanism of the Convention . . .”) • Financing promises (par. 8, to extent coordinated by UNFCCC)

24. II. Perspectives on Climate Post-Copenhagen

25. Perspectives on Climate Post-Copenhagen • What may the CPH Accord achieve? Provided: • Accord is signed by a majority of countries, esp. developed and major emerging economies ... • Developed country targets/ developing country action are sufficiently ‘strong’ ... • US legislation is passed in 2010 ... • Financial promises are fulfilled and are ‘new and additional’ (e.g. to development aid) ...

26. Perspectives on Climate Post-Copenhagen ... Accord may be a first step towards global climate response. • The Accord could begin to harness the potential of developed and developing countries to address climate change. • It may leverage substantial finance for developing countries, including for halting deforestation and protecting forests. Yvo de Boer, 20 Jan: ‘Political tool that has broad support at highest political level’

27. Perspectives on Climate Post-Copenhagen BUT… Slim chances for US climate legislation in 2010: • Massachusetts elects Republican Senator to replace Ted Kennedy • Ends Obama’s majority needed to pass a long list of legislation • U.S. Supreme Court decides lawmakers may not stop corporations from spending money to influence elections (Jan. 21) • Expected effect: help Republican Party with richest lobbyist friends, many likely opposed to climate legislation • Contentious November 2010 Congressional elections and focus on health care could detract from climate legislation

28. Perspectives on Climate Post-Copenhagen The CPH Accord does not achieve sufficient and rapid response to the climate crisis... In addition: • Business lacks regulatory certainty to drive low-carbon investment • CPH confirmed the ‘new bipolar order’ whereby the US has to share hegemony w China • EU, India, Russia, Japan relegated to ‘second league’ players and lost the initiative • The ‘multilateralist’ approach to climate change and the credibility of the UNFCCC process are damaged ... • What next for climate regime and negotiations?

29. Perspectives on Climate Post-Copenhagen • Until CPH, UNFCCC was seen as the main means of addressing climate impacts on biodiversity conservation. Now, UNFCCC may have lost that ability somewhat. • CPH Accord resembles more a political statement than a multilateral, negotiated agreement based on science. • Although intersessionals expected to resume in 2010 in preparation for COP-16, Accord will exist as a “3rd wheel”. • Key question whether Accord will integrate with negotiation tracks, or dominate them and take on life of its own.

30. Perspectives on Climate Post-Copenhagen • Potential effects of Accord on REDD+ and Adaptation: • CPH Accord envisions biannual pledges of emissions reductions subject only to MRV: this undercuts a long-term global carbon cap and international carbon market. • Some potential outcomes: • smaller C-markets would occur with multiple C-prices • ‘race to bottom’ could hamper carbon trading, as businesses could move where no/lower carbon price • without stable prices, REDD+ initiatives would lack predictable, high-volume, long-term financing • Similarly, adaptation programs may not see the volume of financing needed from intermittent pledges.

31. Perspectives on Climate Post-Copenhagen • Legal form of commitments: Top-down v. bottom-up • Kyoto is top-down: parties agree to binding actions (e.g. emissions targets) at international negotiations, locked in for agreed time period. • Under USA proposed bottom-up structure, now in CPH Accord: general framework agreed at top, later parties submit actions and commitments to include in global registry. • Consequences of Legal Form Decisions: • How to ensure environmental integrity if pledges not connected to science? • What role for UNFCCC in bottom-up / MRV system? • Will 2-year ad-hoc funding and reduction pledges be predictable enough for adaptation activities and carbon market?

32. Perspectives on Climate Post-Copenhagen • Future of compliance regime: Compliance vs. MRV • Traditional for MEAs to use compliance system – carrots and sticks for compelling each other to complete agreed targets and actions. • Compliance not actually legally-binding (since only passed by COP decision), but has strong political force and doubtful Parties would ignore it. • MRV is largely a ‘peer review’-type process with no sanctions foreseen. • How to know if Parties will fulfill pledges under MRV? • What if any future remains for compliance after MRV?

33. Perspectives on Climate Post-Copenhagen • What future for Kyoto and its work to date? • Push to bring on new Parties (USA and China), but USA won’t ratify Kyoto or a Kyoto-clone • A two-protocol system would be complicated, but one-protocol bottom-up/MRV system has environmental integrity concerns • Without Kyoto, no way to ensure USA et al. will ratify a new agreement: progress under KP could be lost despite a weaker system in the end • How to integrate work across Kyoto and LCA tracks: • REDD+ and LULUCF • Architectural relation to NAMAs? • Mechanisms • Opened up to developing countries? • Any place in penalties in a future MRV system?

34. IV. Biodiversity Conservation post-Copenhagen Biodiversity Considerations

35. Biodiversity Conservation post-Copenhagen • Given difficulties of post-Copenhagen situation, potential to look for climate solutions for biodiversity from other MEAs, inter alia: • Convention on Biological Diversity (CBD) • Ramsar Convention on Wetlands • Convention on Combating Desertification (UNCCD) • In theory, strong scientific basis for biodiversity-climate connections • Impacts, feedbacks, synergies • Ecosystem-based Adaptation • Carbon sequestration • In practice, weak connections to date between biodiversity and climate MEAs and institutions

36. Biodiversity Conservation post-Copenhagen • UNFCCC • UNFCCC has been far too busy with its own issues and negotiations to assimilate biodiversity concerns to date: • Climate is a universal issue, cross-cutting economic development sectors (energy, transport, industry, housing) as well as human survival issues (water, food security) • Addressing climate will impose deep economic costs (far greater than ozone et al. single-pollutant issues) in short- and long-term (even if far less than costs of inaction), and require societies to reshape infrastructure and lifestyles • By including use of market-based mechanisms, low-carbon energy, new technologies, and large financing streams, climate draws far greater public attention and special interests than biodiversity MEAs

37. Biodiversity Conservation post-Copenhagen • CBD: • Since COP 9 (2008) CBD has assembled working groups to assess biodiversity and climate connections, and begun integrating climate considerations into all of its work programmes: • Ensuring sound scientific basis before Parties implement ocean fertilization to sequester carbon • Co-benefits for biodiversity in REDD+ activities • Ad-Hoc Technical Expert Group on Biodiversity and Climate Change • More work expected on addressing conservation of wetlands and peatlandsespecially

38. Biodiversity Conservation post-Copenhagen • Ramsar: • Ramsar has begun providing guidance on climate concerns in wetlands management. High potential for linking wetlands biodiversity conservation with forest carbon mitigation (e.g. peatlands) as well as climate adaptation activities (e.g. mangrove forests). • UNCCD: • UNCCD work may help fine-tune climate mitigation and response measures in dry lands, as temperature increases and feedbacks are likely to severely impact dry areas and exacerbate pre-existing water shortages, food security and biodiversity losses (Africa in particular).

39. Conclusions • China & USA: new power dynamic • Greatest power to influence rests with newcomers • Accord has uncertain status; a small step but also potential to complicate and detract from future talks • Future legal architecture likely to be complicated or only politically-binding • Unclear whether Copenhagen Accord provided a ‘net benefit’ for climate and biodiversity • Need to analyze the conservation and livelihood implications of proposed new climate regime structures

40. THANKS FOR LISTENING!