Guest Contributor: Prof. Lucas Bergkamp
The Paris Climate Agreement has been hailed as a huge success by some and a big failure by others. Emphasizing its key role in brokering the agreement, the European Commission calls the Paris Agreement an “ambitious and balanced agreement.” President Obama referred to “the strong agreement the world needed,” which “makes America proud” and would constitute “a tribute to American leadership.” Even some environmental groups were ecstatic; World Wildlife Fund labeled the agreement “a huge step forward.” Global Justice Now, on the other hand, finds it “outrageous” to spin the Paris deal as a success, because it “undermines the rights of the world’s most vulnerable communities and has almost nothing binding to ensure a safe and liveable climate for future generations.” One extreme critic even called the agreement a “fraud” and “worthless words.”
How can opinions on the Paris Agreement so dramatically diverge? The reason is that the agreement reflects all sorts of perspectives, and allows everybody to emphasize only the aspects he or she likes. It constitutes a carefully drafted compromise that serves many masters. Indeed, to reach agreement in Paris, the negotiators had to satisfy several conflicting demands, which drove the negotiations to a very awkward, not so common denominator. While the US wanted to avoid a legally binding treaty, so that the Obama administration does not have to obtain approval from Congress, the EU insisted on a legally binding agreement. Developing nations required both the freedom to pursue economic development and financial aid in meeting adaptation needs, but the developed nations insisted that emerging economies also contribute to emission reduction. And while the agreement suggests that it establishes a framework for ambitious science-based climate policy, it also accommodates economic concerns and possible impacts of climate policy measures.
The Paris Agreement may well have been be a huge diplomatic accomplishment. It may be the maximum that was politically feasible. But there is reason to be concerned about the historic deal, its implementation, and the potential for abuse. Not only may the agreement be short-lived, if US participation will be blocked by the courts, but it may also result in further entrenchment and protracted disputes, which could involve the courts. The reason is that the agreement gave the climate activists what they wanted by increasing the ambition, while it gratified the climate realists by not imposing any substantive obligation. As a result, the Paris Agreement has widened the gap between collective ambition and individual obligation. This does not contribute to rational climate policy-making.
Although it is already hard enough to get the world to take action to limit the temperature increase to 3 or 4 °C, in Paris, the parties committed to a common goal of “holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels.” Activists have celebrated this increased ambition as a victory for the climate. But the agreement does nothing to ensure that individual countries contribute to achieving this goal; it merely requires that they submit plans, which should become progressively more ambitious. Apparently, the hope is that diplomatic, political pressure, naming and shaming, or possible unilateral sanctions, such as trade sanctions or economic boycotts, will push countries to do their part. But the effectiveness of these tools hinges on clear criteria for assessment of individual action.
Unfortunately, however, the agreement does not provide any indication or methodology for how the burden will be shared between countries. Countries are free to put all of their faith in innovation, subsidies for renewable energy, carbon sinks, emission reduction, or any combination thereof. A global stocktaking procedure should give the parties some idea about where their collective efforts are heading, but there are no substantive criteria for assessing individual countries’ contributions towards the agreement’s objective. With its 20/20/20 policy mix and the Emissions Trading Scheme, the EU has been taking the lead in the fight against climate change. But if it wants to stay competitive, it cannot continue to do so. Other countries have strong incentives to lag behind as much as they get away with, a problem Paris has not fixed.
So, with the Paris Agreement, the world faces exactly the same collective action problem that it faced before Paris. Paris did increase the risks of conflicts, however, by setting the expectations higher. If governments do not deliver, climate activists will likely seek the help of the courts. A Dutch group has already won a victory in court over its government’s climate policy, and is now invoking the Paris deal to get the government to drop its appeal. Although these kinds of law suits are legally doubtful, it has proven possible to persuade European courts that climate change is such an urgent and existential problem that they should insert themselves into climate policy-making. This trend threatens democracy and the rule of law. With the Paris Agreement the parties intended to reinforce national sovereignty and national democratic process, as opposed to international dictates. But having stated such a high collective ambition, they now need to be mindful of the risks of the judiciary taking over.
About the author: Professor Lucas Bergkamp holds law and medical degrees and is recognized as a leading regulatory lawyer in the EU and abroad. He has published numerous articles and written several books on regulatory law, and most recently co-authored a book on EU legislative and regulatory processes. He was Professor at the Erasmus University Rotterdam, Faculty of Law, for 10 years, and now teaches in the Masters of Energy and Environmental Law Program at Catholic University of Leuven, KUL.