The United States for the first time in history promised to cut its carbon dioxide emissions when it joined the Paris Agreement. In order to meet those targets, the Obama Administration created the Clean Power Plan to reduce emissions and move American states toward cleaner energy sources. However, the Clean Power Plan is currently being challenged in the Supreme Court and it’s unclear whether or not the U.S. government will be able to make its promises a reality. Read on to learn more about the past, present, and potential future of federal pollution regulation in the United States.

The Current Political Context

Currently, the United States has the second highest rate of carbon dioxide emissions in the world, surpassed only by China. The United States has also historically avoided participating in international climate negotiations and is one of  a small number of developed nations that chose not to ratify the Kyoto Convention. While both industrialized and developing countries around the world have joined onto the convention over the past two decades and made pledges to reduce their emissions, the United States has struggled to make national commitments to reduce its own emissions. This is, in part, because American fossil fuel companies have been able to exert a great deal of influence on political decisions through lobbying and because Congress is divided on whether or not climate change is even scientifically valid.

COP21, the 21st Conference of Parties for the U.N. Framework Convention on Climate Change, marked the first time that the United States made a national pledge to reduce its emissions. However, while the COP21 was hailed as an international victory, it remains unclear if America can actually follow through on its commitments. U.S. policymakers remain divided on the issue of climate change and many believe that the government’s attempts to regulate fossil fuel usage directly interfere with the economy. As of February, the Clean Power Plan, with which the EPA began strictly regulating CO2 emissions from power plants, has been stayed by the Supreme Court and risks being ruled unconstitutional. The United States may have made an international commitment to reduce emissions, but on a domestic level, is it ready for such a change to take place?

A Brief history of Climate Change Negotiations

The first United Nations Framework Convention on Climate Change, also known as the Kyoto Protocol, was held on December 11, 1997. The convention entered into force on February 16, 2005–90 days after it was ratified by 55 nations emitting at least 55 percent of the CO2 emissions in 1990. The protocol required industrialized countries to make pledges to reduce their emissions by 5 percent before 2012.

Developing nations weren’t required to make pledges in the first incarnation of the Kyoto Protocol, although many did pledge to use aid from the U.N. and World Bank to invest in renewable energy sources. This was decided by the principle of “common but differentiated responsibilities,” meaning that since industrialized countries did the most damage to the environment, they should bear the heaviest burden of fixing it. Likewise, since dramatically reducing emissions would handicap growth in developing nations, it’s viewed as unfair to expect them to make the same level of commitment.

The United States did sign onto the Kyoto Protocol but it did not ratify the convention, meaning essentially that it gave its public support but refused to individually reduce its emissions. Decisions not to make emissions pledges from some major nations such as the United States, Canada, and Russia–although Russia did eventually agree to ratify the convention in 2004–are often cited by smaller countries as justification to not participate as well.

“High-level ministerial roundtable under the Kyoto Protocol” courtesy of UNclimatechange via Flickr

In 2012, following the end of the Kyoto Protocol’s first commitment period, another conference was held to establish new international pledges. The second conference produced the Doha Amendment, which gathered binding emissions reduction commitments from much of the industrialized world, including the entirety of the European Union and 37 other developed countries. Many developing countries ratified the amendment and made their own commitments, but their participation was on a non-binding basis.

In December 2015, COP21 was held in Paris and attended by representatives from 188 different countries, making it one of the largest international conferences in history. Rather than set specific reduction targets, COP21 let each participating country decide its own emission reduction plan with the ultimate goal of keeping global warming from raising the earth’s temperature by more than 2 degrees Celsius. COP21 was successful in bringing together almost every country on earth to participate in the conference, including a wide range of developing countries and many of the world’s top polluters, such as China, India, Indonesia, and the United States. The United States pledged to reduce its emissions between 26 and 28 percent by 2025, focusing primarily on carbon dioxide but also on methane, nitrous oxide, perfluorocarbons, sulfur hexafluoride, and nitrogen trifluoride.

The Clean Air Act and the EPA’s Role in Emissions Regulations

While COP21 marks the first time that the United States made an international commitment to reduce its emissions, the U.S. government has exercised power internally to regulate emissions since Congress passed the Clean Air Act in 1973. The Clean Air Act gave the EPA the power to create National Ambient Air Quality Standards (NAAQS) for six hazardous air pollutants: nitrogen dioxide, particulate matter, ozone, sulfur dioxide, carbon monoxide, and lead. Each state was required to design a State Implementation Plan (SIP) to upgrade and regulate industrial air polluters in order to meet these NAAQS. The act was amended in 1977 and in 1990, both of which were made to redesign the NAAQS and extend the deadlines for states that failed to reach their goals. The 1990 amendment also set new standards for technology upgrades for large-scale, stationary polluters.

The Clean Air Act addressed both stationary and mobile sources of pollution: power plants were forced to upgrade their technology and install filters on smokestacks and the auto industry was forced to redesign its engines and cars to reduce effects of harmful chemicals released into the atmosphere as well as meet average miles-per-gallon efficiency standards. The act has made a significant impact on air quality in the United States, reducing smog by more than 25 percent since 1990, lead pollution by 92 percent, sulfur dioxide by 71 percent, nitrogen dioxide by 46 percent, and ending the production and distribution of many chemicals that adversely affect the ozone layer.

However, while the Clean Air Act has existed for 43 years, its use to regulate greenhouse gas (GHG) emissions is a recent development. In 2007, the Supreme Court ruled  in Massachusetts v. the EPA that if it could be scientifically proven that greenhouse gas emissions were dangerous to human health, then it would be the EPA’s responsibility to regulate them. Only two years later, in 2009, scientific evidence proved both that GHGs were harmful to the human respiratory system and that an increase in heat waves due to global warming could be dangerous, especially for the elderly and infirm.

“Smokestack” courtesy of Dean Hochman via Flickr

The Clean Power Plan Explained

The Supreme Court’s ruling in Massachusetts v. the EPA gave the EPA the power to use the Clean Air Act as a viable policy tool to combat climate change and paved the way for the creation of the Clean Power Plan. The United States’ greenhouse gas emissions can be broken down into five major categories: 31 percent comes from electricity generation (also referred to as the power sector), 27 percent from transportation, 21 percent from industry, 12 percent from commercial and residential sources, and 9 percent from agriculture.

If the United States is to successfully reduce emissions by its target of 26 to 28 percent, a substantial amount of those reductions will have to come from the power sector, which contributes the largest share of greenhouse gasses and is also likely where the government can exert the most regulatory control. This has been the guiding logic behind the creation of the Obama Administration’s 2015 Clean Power Plan.

The Clean Power Plan mandates that power plants across the United States reduce their carbon dioxide emissions by 26 percent below 2005 levels by 2020 and 32 percent by 2030. The plan works differently on a state-by-state basis according to the energy mix used in each state, how efficient and environmentally friendly the current power plants are, and how effective a variety of traditional emission reduction tools can be in the context of the first two factors. The different emissions reductions targets vary widely because of these variables. For example, Montana is required to reduce its emissions by 47 percent while a few states aren’t required to make any changes because they don’t have power plants that the plan applies to. The EPA’s job is only to set these reduction targets; each state is allowed to design its own plan to meet its target. The only condition is that the plans must be submitted by September 1, or the EPA will impose a federal plan on states that failed to create their own.

Each state may choose to pursue the emissions reductions either through rate-based methods, which focus on reducing the amount of carbon emitted per unit of energy; or through mass-based methods, which focus on reducing the overall number of tons of carbon emitted. Regardless of their method of choice, the EPA offers four basic building blocks to aid the construction of each state’s plans: making existing coal plants more efficient; using existing gas plants more efficiently; increasing renewables and nuclear and increasing end-use energy efficiency. These four principles are not binding constraints but rather general guidelines; each state is expected to create a unique plan.

Legal Challenges

Since the release of the Clean Power Plan, 29 states have attempted to sue the EPA but the majority of these cases were quickly dismissed. But in January, one case, West Virginia v. the EPA, may be on its way to the Supreme Court. While the D.C. circuit court initially plans to review the case in June, on February 9 the Supreme Court voted 5-4 to issue a stay to stop the Clean Power Plan’s implementation prior to undergoing judicial review. That stay stops the EPA’s regulations until after a court ruling has determined whether they are within the agency’s authority. A ruling against the EPA could effectively cripple the plan’s intended purpose of combating climate change.

Image courtesy of Phil Richards via Flickr

However, on February 24, less than two weeks after the Supreme Court issued the stay, Justice Antonin Scalia passed away. Justice Scalia led the decision to overturn the Clean Power Plan and his death significantly complicates the plan’s legal future. The Supreme Court now seems to be divided 4 to 4 on the issue, but there has been no mention of changing the decision to stay the case. The issue is also further complicated by the GOP’s refusal to hold hearings on the President Obama’s Supreme Court nominee.

The looming question now is whether or not the Supreme Court will wait to hear the case until after the 2016 Presidential election and/or the confirmation of a ninth justice. The D.C. Circuit Court is currently scheduled to hear the states’ lawsuit this upcoming summer after which point the Supreme Court will decide whether or not it wants to take up the case. If the court refuses to take up the case or issues a 4-4 split ruling, then the circuit court’s decision will stand. However, legal experts note that the court could delay the case until a new justice joins the bench, which would likely lead to a 5-4 decision based on the ideological leaning of the ninth justice.

So What will Happen in the Meantime?

The Clean Power Plan is critical to the United States’ ability to fulfill its COP21 commitments. However, the fact that the plan is currently pending a court ruling does not mean that it failed. Last year, the Clean Power Plan already exerted considerable influence on the American energy systems as states have begun to redesign their energy systems for the future and many power plant operators have already begun retrofitting their plants and designing compliance plans. The primary focus of the Clean Power Plan is to dramatically reduce the use of coal in American energy and that may very well be happening. The implementation of the plan also coincides with a time when we have new access to domestic reserves of natural gas and energy investors have already started to move away from coal toward less expensive forms of energy.

Coal stocks plummeted in 2015 and many plants across America declared bankruptcy. However, this isn’t to say that the Supreme Court decision isn’t important. If the Clean Power Plan is overturned, then a new series of political barriers to regulating emissions may be created.  The decision also sets a dangerous legal precedent, marking the first time the Supreme Court has stayed federal regulations before hearing the case. The EPA’s legal authority to address airborne pollution is the major weapon that gives the United States a real chance to reduce its emissions. If that power is called into question then that may dramatically impede the EPA’s ability to make progress on climate change.

Conclusion

The Clean Power Plan’s emphasis on increasing renewable energy in America is a large part of what makes it an effective weapon against climate change. Coal may still die out on its own, but without the plan in place, it seems likely that energy investors will shift to the more cost efficient natural gas rather than renewable energy. Natural gas releases less CO2 than coal but is still very much a greenhouse gas and a national dependence on methane as an energy source would still result in high levels of GHG emissions.

As long as the Clean Power Plan is in legal limbo it’s difficult to predict what direction American energy will take. Currently, it seems likely that there won’t be a final hearing on the case until after the 2016 election is decided and a new justice is confirmed by the Senate. Whether that new justice ends up being liberal or conservative will most likely make or break the plan and will strongly influence the United States’ ability to meet its Cop21 goals. The next president will also have control over executive branch policy, meaning that he or she could peel back a significant portion of existing regulation or continue President Obama’s efforts and reduce greenhouse gas emissions further.

Resources

The Atlantic: A Legal Win for the E.P.A.

The Atlantic: Will a Reconfigured Supreme Court help Obama’s Clean Power Plan Survive?

The Atlantic: Did the Supreme Court Doom the Paris Climate Change Deal?

The Atlantic: The Supreme Court’s Devastating Decision on Climate Change

CNN: Kyoto Protocol Fast Facts

CNN: Obama: Climate Agreement ‘Best Chance we have to Save the Environment‘

Earth Institute, Columbia University: What is the U.S. Commitment in Paris? 

Environment and Energy Publishing, LLC: Clean Power Plan: A Summary

The EPA.: The Clean Air Act Requirements and History

The EPA: The Clean Power Plan for Existing Power Plants

The EPA: Summary of the Clean Air Act

The Guardian: The Kyoto Protocol is Not Quite Dead

The Hill: Supreme Court Overturns Landmark EPA Air Pollution Law

Inside Climate News: For U.S. and China, World’s Biggest Climate Polluters, It’s Still Business as Usual

Moyers & Company: Here are the 56% of Republicans who Deny Climate Change

NRDC: NRDC Summary of EPA’s Clean Power Plan

United Nations Conference on Climate Change: 188 Countries have Committed to Reducing their Carbon Emissions

United Nations Framework on Climate Change Convention: Status of Ratification of the Kyoto Protocol

Union of Concerned Scientists: The Clean Air Act

Kyle Downey

Kyle Downey is an Environmental Issues Specialist for Law Street Media. He graduated from Skidmore College with a Bachelor’s degree in Environmental Studies. His main passions are environmentalism and social justice. Contact Kyle at Staff@LawStreetMedia.com.

The post Will the United States be Able to Keep its Paris Agreement Commitments? appeared first on Law Street.

At the end of November, UN delegates will gather in Paris for the 21st Conference of the Parties (COP) and engage in the annual Framework Convention on Climate Change (UNFCCC). Nearly two decades after the Kyoto Conference and 10 years since the implementation of the Kyoto Protocol, the United Nations is still struggling to create a legally binding solution to climate change. As Paris looms, there’s a sense of cautious optimism that this conference may finally promote the action to avert the climate change threat on the horizon. Read on to find out about the major events of the conferences over the last 18 years and the impacts they have made.

What can we expect from this year’s Climate Change Conference?

Why Climate Change Matters to World Leaders

Scientific consensus has concluded that the human production of greenhouse gasses (GHGs) beginning with the industrial revolution have impacted, and are continuing to impact, the global environment. GHGs include carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbons, and perfluorocarbons.

A 1995 report from the United Nations’ Intergovernmental Panel on Climate Change (IPCC) concluded that “the balance of evidence suggests a discernible human influence on global climate.” In 1997, the Kyoto Conference produced the Kyoto Protocol, which attempted to establish caps on industrialized nations’ carbon emissions. Most European countries agreed to the legally binding treaty, but the U.S. Senate failed to ratify it. In 2001, the Bush administration formally rejected the Kyoto Protocol.

Climate change currently holds a prominent place in the U.S. Intelligence Community’s annual Worldwide Threat Assessment. Global climate change threatens strategic resources, habitable coastal regions, food supplies, promotes the spread of infectious diseases, leads to more extreme weather events, and exacerbates humanitarian crises. The generally accepted figure for average global temperature rise in the last century is 0.8 degrees Celsius and the projected rise in the next century will be an additional 1.2 degrees. However, many scientists fear the temperature rise could be more severe, projecting as much as a 4 degrees Celsius rise from pre-industrial levels by 2100.

Such an increase would reduce the amount of habitable land available, cripple agriculture, and lead to major flooding in coastal regions. Nations previously resistant to the idea of a severe climate change threat are coming around to engage in the international discussion.

History: Framework Convention on Climate Change (UNFCCC)

Kyoto (1997)

After the 1995 report from the Intergovernmental Panel on Climate Change (IPCC) concluded that the evidence supports the existence of human-influenced climate change, the United Nations sought to create a treaty to deal with the issue. In 1996, U.S. undersecretary for global affairs Timothy Wirth stated that the Clinton Administration accepted the findings of the Intergovernmental Panel on Climate Change and called for legally binding targets for greenhouse gas reductions to be drafted. In 1997, the Conference of the Parties met again, this time adopting the Kyoto Protocol. The conference acknowledged that the majority of the burden to halt climate change fell on the industrialized Annex-I countries (developed countries like the United States, Japan, Russia, and most of Western Europe). Several developing (Annex-B) nations also accepted the stipulations of the Kyoto Protocol.

The Kyoto Protocol introduced mechanisms such as emissions trading, a global fund–to assist developing countries to minimize their emissions–and a monitoring system to measure emissions and ensure compliance. Nations that ratified the agreement had to independently find solutions to cut their emissions. However, the Protocol allowed for flexibility, acknowledging that the cost of reducing emissions varied among countries.

Enforcement of the Protocol was relatively weak, but still present. A nation failing to hit its initial emission reduction target would be required to increase its secondary target by 30 percent and would be barred from the emissions trading program.

Although President Clinton signed the agreement, the Senate refused to ratify the Protocol due to the exemption of countries like China and India, which the protocol classified as developing. Ultimately, the United States feared that the protocol would damage its economic competitiveness.

Bonn (2001)

Early in his presidency, George W. Bush rejected the Kyoto Protocol for the same reasons the 1998 Senate refused to ratify it. The United States also did not participate in the 2001 Climate Change Conference held in Bonn, Germany, choosing to observe.

The previous conference in the Hague in 2000 devolved rapidly into an argument over enforcement policies and political disagreements. The disagreement created between the United States and the European Union eventually caused the talks to be suspended and resumed at a later date. As a result, there were low expectations for the 2001 conference. One of the major remaining issues was the role of carbon sinks in net carbon reduction (championed by the United States) versus direct source reduction (preferred by the E.U.). With the U.S.’s withdrawal in 2001, many feared the Kyoto Protocol would collapse.

The Protocol could only be ratified if agreed upon by nations making up 55 percent of global carbon dioxide emissions from 1990. The United States was responsible for 35 percent of GHG emissions in 1990, so its withdrawal meant that countries such as Russia (17.4 percent) and Japan (8.5 percent) had strengthened negotiating positions. Without either of these two nations, the Protocol would likely collapse.

Despite the high stakes and low expectations, an agreement was reached. The Bonn agreement allowed for nations to use various mechanisms, such as carbon sinks, to achieve their target emissions reduction without necessarily reducing their GHG production. The agreement tackled forest and crop management which had proved significant to negotiation breakdowns at The Hague, allowing for countries to credit land allocations toward their GHG reduction, but included a hard cap to these credits. The success of the negotiations at Bonn set the Kyoto Protocol on the path to international ratification.

Nairobi (2006)

In 2005 in Montreal, Canada the Kyoto Protocol entered into force at the first annual Meeting of the Parties. The Protocol was extended beyond its initial 2012 expiration and set in motion plans to negotiate deeper cuts to GHG emissions. The optimism for the future of the Kyoto Protocol dimmed a little in Nairobi the following year. While certain steps were taken to include developing nations in the Protocol, the negotiations also faced criticism. Observers like BBC corrospondent Richard Black criticized many delegates for failing to effectively discuss cutting emissions for fear of economic costs and competitiveness. This has been a recurring criticism of the global effort to reduce GHG emissions.

In order for countries to pursue solutions based on national interests, they would need to see climate change mechanisms as opportunities to increase economic growth rather than costs. The concern is always that making money, rather than reducing emissions, is the priority for governments at these conferences. The Nairobi conference also raised questions as to whose climate problem the U.N. is solving. The responsibility to reduce emissions lies largely with the wealthy, developed nations while the impact is most strongly felt by poorer, less developed nations.

These concerns eventually led the international community to re-evaluate the Kyoto Protocol and begin new negotiations on emissions cuts, suggesting global emissions would need to see a 50 percent cut in the near future. Work on technology transfer to developing countries was extended but only on a limited basis.

Copenhagen (2009)

Prior to the 2009 Meeting of the Parties, most anticipated that an emissions reduction goal would be agreed upon, as the first commitment period to the Kyoto Protocol was to end in 2012. However, leading up to the conference, world leaders elected to put off the crafting process for a later date. Most of the major negotiations fell short and one of the few takeaways from the Copenhabgen conference was an external agreement between the U.S., China, South Africa, India, and Brazil. This conference is widely considered a failure by those preparing to attend the 2015 Paris Conference.

Because the five-nation agreement was external, it was not considered binding by the U.N. Although it calls for individual nations to track pollution-related goals and allocate funds for developing nations, the agreement failed to produce the long-term goals. Developing nations felt excluded, as did the E.U., while all parties felt the conference itself was sub-optimally organized and run.

Durban (2011)

The Durban conference set in motion the events leading up to the Paris conference of this year. It was agreed that a legally binding deal would be ratified by all countries in 2015 to take effect in 2020. Additionally, the framework for the Green Climate Fund (GFC), which had been established the previous year, was adopted. The GCF would assist poorer countries adapt to the climate change challenges. The president of the conference declared the Durban Meeting of the Parties a success, though scientists warned that more drastic action was needed to avert the 2 degrees Celsius increase predicted for 2050.

What to Expect from Paris

So far, 148 out of 196 countries have met the U.N. deadline to submit emissions reduction plans leading up to the Paris conference. The U.N. argues that if more countries submit these plans, it is more likely that the conference will result in a strong global treaty. India’s plan drew attention by stating that the country would require 2.5 trillion USD to meet its emissions goals. While it is unclear how much of that money India intends to draw from foreign investments, it is clear that it will have to be a significant amount.

As more plans are submitted, temperature predictions have been established and updated. At present, the current projection for global temperature rise is 2.7 degrees Celsius above pre-industrial levels–an improvement from the earlier projection of 3.1 degrees Celsius.

The IPCC has also elected a new chairman for the first time in 13 years. Hoesung Lee of South Korea will chair the Paris conference. While it is still very early, many have approved of the selection, suggesting he could serve as a link in negotiations between the developed and developing countries.

The Paris conference will be tasked with ratifying a legally binding treaty much like the one produced at Bonn in 2001. While almost all of the U.N. member nations have accepted the reality of human-influenced climate change, there will likely be intense debate over how net emissions ought to be reduced. As always, the weight of economic and competitive costs will weigh on the minds of delegates from developed countries while delegates from developing countries will continue to press for climate change adaptation funds. There is currently a very real sense from the global community that something must be done and a cautious sense of optimism that something will be.

Conclusion

The history of the U.N. Framework Convention on Climate Change is long and messy. While most agree on the necessity for global emissions reduction, there are numerous disagreements over how to do so and who is primarily responsible. Most agree that the primary blame for climate change lies with the developed nations, but there are questions regarding how much these nations should help those that are currently developing. The role of emissions sinks has been contested before and may come up again in Paris. Meanwhile, India, China, and the United States will play major roles in determining the success of the Paris conference, and the ultimate effectiveness of any agreement reached. While the UNFCCC has been successful in reducing global emissions over the last 10 years, there is still much more work to do, and only time will tell if the nations of the world are up to the challenge.

Resources

Primary

UNFCCC: Durban Climate Change Conference

UNFCCC: The Green Climate Fund

UNFCCC: Provisional Agenda for the 21st session of the Conference of the Parties

The White House: President Barrack Obama at UN Climate Change Summit

The White House: President Barrack Obama’s Climate Change Plan 2015

105th Congress: Byrd-Hagel Resolution

Netherlands Environmental Assessment Agency: Trends in Global CO2 Emissions 2014 Report

Senate Armed Services Committee: Worldwide Threat Assessment of the US Intelligence Community

IPCC: Climate Change 1995 The Science of Climate Change

UNFCCC: The Kyoto Protocol

Additional

BBC: Climate Talks a Tricky Business

NYTimes: Many Goals Remain Unmet in 5 Nations’ Climate Deal

NYTimes: Leaders will Delay Deal on Climate Change

The Guardian: Durban Deal will not Avert Catastrophic Climate Change, says Scientists

Hoesung Lee: The Risk of No Action

BBC: UN Battle Looms over Finance as Nations Submit Climate Plans

BBC: Paris Climate Summit: Don’t Mention Copenhagen

BBC: Why did Copenhagen Fail to Deliver a Climate Deal?

Matthew Vespa: Climate Change 2001: Kyoto at Bonn and Marrakech

Ehsan Masood: United States Backs Climate Panel Findings

BBC: Kyoto: Why Did the US Pull Out?

TedxTalks: Climate Change is Simple: David Roberts

TedxTalks: The Reality of Climate Change: David Puttnam

Samuel Whitesell

Samuel Whitesell is a graduate of the University of North Carolina at Chapel Hill having studied History and Peace, War, and Defense. His interests cover international policy, diplomacy, and politics, along with some entertainment/sports. He also writes fiction on the side. Contact Samuel at Staff@LawStreetMedia.com.

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