Is there anybody out there? (EU climate law and policy before and after Copenhagen) Leonardo Massai CLEER Workshop EU environmental norms and third countries: the EU as a global role model? TMC Asser Institute, The Hague 19 April 2013

Contents Background of International and EU climate law Copenhagen Post Copenhagen

Climate change negotiations UNFCCC: developing and developed countries Kyoto Protocol: no US Art. 3(9) KP: negotiations for future commitment periods KP shall start no later then 2005! CMP1 (2005): Ad-hoc Working Group on Further reduction commitments under the KP (AWG-KP) COP13 Bali Action Plan: Ad-hoc Working Group on Long-term Cooperative Action (AWG-LCA) Shared vision, mitigation, adaptation, finance, technology transfer and capacity building Bali Roadmap 2 years negotiations – 8 meetings 2 tracks: AWG LCA and AWG-KP

UNFCCC: institutional framework

UNFCCC: bodies

EU climate law and policy (before Copenhagen) (I) 2000: European Climate Change Programme (ECCP) 2001: US said no to the Kyoto Protocol EU assuming leadership on climate change worldwide European Commission: 3 key draft proposals, including EU ETS 2002: ratification KP, Council Decision 2002/358/EC EU Burden Sharing Agreement (only EU15!) Directive 2003/87/EC EU ETS

EU climate law and policy (before Copenhagen) (II) 2007: EU leaders agreed on targets (by 2020) Reduction of greenhouse gas emissions Promotion of renewable energy Promotion of energy efficiency 2009: Adoption of the integrated climate and energy package (6 acts) Moving to 30% reduction GHG emissions Entry into force of the Treaty of Lisbon Climate diplomacy

EU treaties after Lisbon Art. 3(5) TEU: 5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter Art 21(2) TEU: The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; Art. 191(1): ‘Union policy on the environment shall contribute to pursuit of the following objectives:.. promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change’

Copenhagen Summit

‘The final cut’ AWGs did not complete its work in time 28 or so countries negotiated the Accord US + BASIC (5 countries) leading role EU no single voice Public announcements on the media (“we have a deal”) Final plenary COP15/CMP5 :11 hours Points of order and procedural irregularities Express objections by a few Parties Final result rescued by Ban-Ki Moon ‘The COP takes note of the Copenhagen Accord of 18 December 2009’ Consensus issue Empty text: no numbers! Only reference to 2 degrees C No clarity on the future of negotiations Many negotiated texts still pending Legal and political implications of association

Post-2012 regime: where do we stand? Durban (COP17): AWG on the Durban Platform for enhanced action (ADP) finalized to ‘complete its work as early as possible but no later than 2015 in order to adopt this protocol, legal instrument or agreed outcome with legal force at COP21 and for it to come into effect and be implemented from 2020’ COP18/CMP8 Doha: Conclusion of AWG-LCA Kyoto Protocol: amendment adopted to launch the 2 nd commitment period ADP: text to be finalized no later than 2015 ADP COP18: Draft negotiating text no later than COP20 (December 2014) Negotiating text before May 2015 ADP still missing a plan of action or even an agenda

Possible building blocks new regime ElementOption AOption BOption C Legal FormA protocolA COP decisionPolitical declaration to implement legal instrument at national level Commitment on national emissions target Legally binding numerical targets (e.g. KP) Non-binding voluntary numerical goals No indications of emissions levels Commitments on mitigation actions, policies and measures Legally binding mitigation actions Non-binding domestic mitigation actions, with international assessment No indicatsions of mitigation actions, policies and measures Use of carbon trading market mechanisms Cap and trade at the int level; full use of other crediting mechanisms Linkage of domestic emissions trading schemes, with some offsets and crediting No indications of use of carbon market mechanisms Financial mechanismFinanced only by public funding from developed countries Financed by various resources including private investments No indications of use of financial mechanisms Common but differentiated responsibilities (CBDR) Current grouping, which is Annex I and non-Annex I Parties Re-grouping of countries according to formulas such as GDP per capita No more grouping of countries, and CBDR will be attained by other means Source: NIES, Japan (2013)

Current level EU GHG emisisons Source: European Commission (2011)

EU target towards 2020 Source: European Commission (2011)

EU after Copenhagen Limitations to ambition of EU wide targets Establishment of DG Clima EU ETS Review Carbon leakage Aviation case Position on the new market based mechanism Moving to 30% reduction?: Analysis of options beyond 20% GHG emission reductions (costs and benefits and ensuring equitable treatment of Member States) Support to the Kyoto Protocol 2 nd commitment period EU and G77: regular bilateral meetings Public consultation

Green Paper on 2030 framework for climate and energy policies COM(2013)169 What type, nature and level of climate and energy targets should be set for 2030? How can coherence between different policy instruments be attained? How can the energy system best contribute to EU competitiveness? How can Member States' different capacities to act be taken into account? Fostering competitiveness EU economy: Internal market legislation critical Future exploitation of indigeneous oil and gas resources in environmentally sound manner Diversification energy supply routes Engage further with third countries ETS measures to limit impacts on competitiveness of energy intensive sectors

Consultation on 2015 international CC agreement (I) COM(2013)167: The 2015 International Climate Change Agreement: Shaping international climate policy beyond 2020 Be inclusive, by containing commitments that are applicable to all countries, developed and developing alike; Focus on encouraging and enabling countries to take on new and ambitious commitments to cut their GHG emissions; Include commitments ambitious enough to limit warming to 2°C; Be effective, by enabling the right set of incentives for implementation and compliance; Be perceived as equitable in the way it shares out the effort of cutting emissions and the cost of adapting to unavoidable climate change; Be legally binding; Learn from and strengthen the current international climate regime; Respond to scientific advances and be sufficiently dynamic and flexible to adjust as scientific knowledge develops further and as technology costs and socio-economic circumstances change; See a broader range of countries share responsibility for providing financial support to help poor countries tackle climate change.

Consultation on 2015 international CC agreement (II) Need for more ambition Single comprehensive regime: Moving beyond North-South paradigm Attracting participation all major economies Reinforce broader sustainable development: Integration CC objectives into relevant policy areas Encourage bilateral, multilateral and regional initiatives 2015 agreement: Applicable to all Legally binding Equitable distribution of mitigation commitments Means of implementation (finance, technology, NMM) Improving accounting: robust compliance system

Preparing the path for the 2015 agreement UN negotiating process: COPs ‘open-ended participation and decision-making by consensus often results in only agreeing on the LOWEST COMMON DENOMINATOR’ Ideas to strengthen the effectiveness and efficiency of UN negotiations: developing rules of procedure to better facilitate reaching decisions than through the consensus rule applied under the Convention; revisiting the frequency of the annual COPs, where the Convention is one of the few that provides for an annual conference. In doing so, it will be important to find a balance between the continued need for political attention for climate change and avoiding the expectation of ground breaking new progress at every meeting; rather than working with a single annually rotating COP Presidency, options such as grouping countries into joint Presidencies over more than one year or having two year Presidencies; keeping the current frequency of formal meetings for technical work, the intensity of which is likely to increase in the coming years; streamlining and consolidation of the large number of specific agenda items, more informal exchanges ahead of formal technical meetings as well as setting clear priorities in order to contain the overall cost of meetings; opportunities to further strengthen the contributions of stakeholders, including expert views from business and non-governmental organisations; a strengthened role for the Convention Secretariat.

Way ahead Political willingness and leadership still lacking globally 2015 deadline ? EU not perceived as leading actor on climate change Reform Treaty of Lisbon: will it ever apply to climate change? Consultation and discussion with Member States, EU institutions and stakeholders Enhanced cooperation with third States