US withdrawal?

Following the inauguration of President Donald Trump the Whitehouse website was changed immediately to confirm the new government’s intention to scale back or undo previous efforts to address climate change. It now states that “for too long [the US has] been held back by burdensome regulations on our energy industry. President Trump is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan and the Waters of the U.S. rule.”

Whether the new policy will also result in a departure from commitments made at the international level is not yet clear. There has, however, been persistent speculation about a possible withdrawal of the US from the Paris Agreement (after at least three years from 4 November 2016 to take effect after another year) or even the UN Framework Convention on Climate Change (UNFCCC) as a whole (within one year).

Legal advice produced by LRI experts indicates that “although the Constitution requires the advice and consent of the Senate before the United States can become a party to a treaty, the president may unilaterally decide on behalf of the country to terminate a treaty that no longer serves the national interest”.

On the justiciability of the Nationally Determined Contribution submitted by the US another legal opinion states that: “Since the Paris Agreement was not adopted by the US as a self-executing agreement and since the US has only complied with the Paris Agreement using existing legislation, the provisions of the agreement, including the NDC obligations, will likely not be enforceable in a US court.”

The full advice is available through the LRI database. If you have not registered yet you can do so (in 20 seconds) and instantly use it at http://legalresponseinitiative.org/wp-login.php?action=register

LRI at COP22 in Marrakesh

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A team of LRI lawyers is attending the 22nd Conference of the Parties (COP22) to the UNFCCC in Marrakesh. To get in touch please email: liaisonofficers@legalresponseinitiative.org

In collaboration with UN Environment (UNEP), LRI also organised a round-table discussion on legal preparedness for the Paris Agreement as part of the Law and Governance Day. The event built on a climate legislation workshop previously held in London exploring the different approaches and ideas for supporting developing countries in their legislative efforts to respond to climate change and implement their commitments under the new Paris climate agreement (the report is available online).

The COP22 Law and Governance Day is aimed at sharing, strengthening, and generating new legal and institutional innovations in the law and policy reform elements of Nationally Determined Contributions (NDCs) and the Paris Agreement.

Alina Averchenkova of the Grantham Research Institute on Climate Change and the Environment (at LSE) presented some findings of a study on climate legislation worldwide. The research indicates that at present only four jurisdictions are fully prepared to implement the commitments contained in their nationally determined contributions (NDCs). A summary of the key trends is already available at: http://www.lse.ac.uk/GranthamInstitute/publication/2015-global-climate-legislation-study/ – the final report will be released on November 17.

Stephen Minas of the Dickson Poon School of Law at King’s College highlighted that legislation may not always be necessary but can send important signals to investors of climate solutions (that require legal certainty). Likewise, regulatory interventions need to consider domestic particularities and are also an opportunity for joint approaches in developing legislation and domestic capacity building.

Robert Ondhowe of the UNEP’s Law Division provided insights on how the Programme is supporting developing countries with respect to legal preparedness. During the following discussion participants brought up other areas of relevant research (e.g. on NDCs in the Maghreb region) and debated on how climate relevant laws may be defined and aligned with (future) requirements under the Paris Agreement.

Legislating the Paris Agreement – two days of discussions in London

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In collaboration with the Climate & Development Knowledge Network (CDKN), LRI has been hosting a two-day event in London to develop approaches and ideas for supporting developing countries in their legislative efforts to respond to climate change and implement their commitments under the new Paris climate agreement.

A public panel discussion took place at PricewaterhouseCoopers on 27 September to assess the post-Paris needs and challenges for effective climate change action in developing countries. This led to a vibrant discussion between development organisations, donor agencies, legal professionals and representatives of foreign missions based in London. Moderated by Edward King of Climate Home, the event also marked the launch of a new initiative by the legal community and the United Nations Environment Programme (UNEP), offering expert legal advice to vulnerable countries to translate international climate ambition into action.

Key issues raised were considered further at an expert workshop on the following day at Simmons & Simmons. Around 40 participants from private practice, academia and intergovernmental organisations presented their work on legal drafting, comparing existing legislation, stakeholder engagement and other areas that should inform the development of climate or climate relevant legislation in the future. Some of them had travelled to London from Germany, Ghana, Kenya, Nigeria and the US.

The workshop discussion focused on the different approaches necessary in developing complex climate legislation. Participants made suggestions on, for example, how to assess and improve legal frameworks, create a network for support and capacity building, and balance climate change objectives with or societal concerns. The findings will be captured in a concise report and could be further developed into a tool for legal drafters in developing countries in the review and development of legislation in different thematic areas.

Workshop presentations on (1) Analyzing climate change legislation, a (2) Brief typology on national climate change legislation and (4) Legislative drafting are available here and (3) Consistency of national efforts with the PA at http://legalresponseinitiative.org/wp-content/uploads/2016/10/Climate-legislation-3.pdf