Benjamin Whitney, JD Anticipated May 2022
Among President Biden’s very first acts as the nation’s forty-sixth chief executive was to recommit the United States to the Paris Climate Agreement (Paris). This move comes after the United States’ four-year absence from that international agreement under the Trump Administration. Paris is a watershed multilateral-treaty that brings together 196 adopting nations for one common, fundamental goal––limiting global warming to “well below 2ºC and preferably to 1.5ºC.” The treaty, notwithstanding the temporary absence of the United States, has been celebrated as “the world’s greatest diplomatic success.” Even so, at this point its success is far from certain. Today, we find ourselves at the global crossroads of human history. One road leads down the path that Paris has established: global citizens unite to vigorously adopt, enforce, and meet the challenge set forth by the climate crisis. The other road leads down a path where we fail to act and go on to suffer unretractable changes to life as we know it.
Not all commentators are optimistic about Paris. Some view the agreement as an underwhelming compromise watered down by the competing interests involved in the multilateral negotiations among nation-states. Noah Sachs, for instance, writes provocatively about “how and why the Paris Agreement could falter.” Sachs suggest two scenarios––breakdown and breakup––for the demise of Paris. Sachs argues that Paris is no match for the climate crisis and will either prove ineffective or be scrapped altogether. However, this argument is overly pessimistic and misses crucial facts that compel a strong argument to the contrary––Paris will be a success.
To be sure, Paris is an imperfect document. Even so, it is our best shot at leveling emissions to stave off the worst effects of climate change. There is much cause for optimism. With the United States recommitted, its political and economic leadership will guide Paris from promise to practice. In the Biden Administration, the United States has a government that finally recognizes that failure is not an option. For Paris to be effective, and to avoid Sachs’ downward-spiral scenarios, the United States must take a leadership position with respect to the implementation and self-policing mechanisms of the agreement.
In what follows, I first briefly address the two primary antecedents to Paris, the Kyoto Protocol and the Copenhagen Accord, to establish how it is that we have arrived at Paris. Second, I discuss Paris’ basic framework to illustrate why U.S. leadership is crucial. Third, I address Sachs’ “breakdown” and “breakup” scenarios and argue that these scenarios are unlikely to occur. Finally, I conclude by addressing Paris and the future.
International Climate Summits––Kyoto, Copenhagen, and Paris
Paris was not born on a blank canvas. International agreements and treaties have served to legitimize public power and police territorial borders for tens of thousands of years. The modern use of treaties implicates the modern conception of the nation-state. In a world of increasing globalization, treaties regularly involve multiple actors and multilateral commitments, in contrast to historically-preferred state-to-state bilateral agreements. The first international environmental agreements considered immediately visceral problems like species and habitat loss. In 1994, with near-universal membership, the United Nations Framework Convention on Climate Change (“UNFCCC”) entered into force two years after the much celebrated Rio Earth Summit. This treaty recognized the climate problem and compelled adopters to stabilize emissions to “a level that would prevent dangerous anthropogenic interference with the climate system.” The UNFCCC established the framework for climate-related international collaboration by directing funding for certain climate-related activities and by developing a system for updating greenhouse gas emissions data. The UNFCCC thus set the stage for the following summits.
The Kyoto Protocol
The Kyoto Protocol was adopted in 1997 and entered into force in 2005. 192 countries have signed on as parties to Kyoto, but notably, the United States did not. And to further dent Kyoto’s stature, Canada walked away in 2011 saying, “The Kyoto Protocol does not cover the world’s largest two emitters, the United States and China, and therefore cannot work.” Kyoto operationalized the framework established by the UNFCCC in 1994. This created “common but differentiated responsibility” for adopting countries, and separated developed and developing countries by annex. Under Kyoto, Annex I countries—states with advanced industrial economies—have a legally enforceable burden to meet established commitments to greenhouse gas reduction, but non-Annex I countries do not have that obligation.
Kyoto’s basic framework, as described in Robert Henson’s The Thinking Person’s Guide to Climate Change, requires developed nations to reduce greenhouse gas emissions by specific numeric percentages developed through a top-down process. This approach pursues climate objectives with an overall common goal––to reduce greenhouse gas emissions. Additionally, Kyoto established multilaterally negotiated targets, timetables, and monitoring and enforcement mechanisms for the different participating parties. By way of a binding, top-down structure, Kyoto created goalposts and clear accountability measures that were centrally determined.
The problem with this ambitious approach is the lack of participation and, arguably, its lack of true ambition. The committed nations agreed to reduce “GHG emissions to an average of five percent against 1990 levels.” In addition to the absence of the United States from the treaty, Kyoto designated India and China––two of the world’s largest GHG emitters––as non-Annex I nations, and therefore those states were not required to meet legally binding goals. Ambitious goals are only meaningful if countries meaningfully adopt them. It is difficult to argue that any meaningful adoption could be achieved if the world’s leading carbon emitters are not at the forefront of the effort. With this in mind, many consider Kyoto a failure. Even though some nations met or beat their emissions goals, the lack of leadership from the world’s largest emitters proved the lynchpin of the treaty’s demise. Kyoto’s lasting impact, however, is not the great strides it made towards carbon reduction, but rather its establishment of a global system for managing the atmosphere.
The Copenhagen Accord
A decade-and-a-half later, on the heels of President Barack Obama’s election victory, climate advocates got to work. The Copenhagen Accord sought to fill the gaps left by the Kyoto Protocol. Unfortunately, Copenhagen’s promise of more ambitious goals and more rigorous standards would go unfulfilled. As Henson describes, “the momentum faded during the run-up” to the summit, and Copenhagen “descended into near chaos.” Plagued by the on-going global financial crisis, many countries were simply not ready to commit significant resources at the December 2009 meeting and the “quickly drafted” agreement was “noted” by participating countries rather than ratified. Even worse than its speedy drafting, Copenhagen’s most criticized defect was that it was entirely voluntary and non-binding.
Despite these shortcomings, Copenhagen’s bottom-up approach has its merits. Functionally, the bottom-up approach offers a contrast from Kyoto’s top-down approach. Copenhagen’s voluntary nature and flexibility reduced nonparticipation. However, participation at the expense of rigor, ambition, and legally enforceable goals is not near good enough for the crisis at hand.
The Paris Agreement
In 2015, world leaders and climate advocates once again reenergized for a summit to tackle climate change head-on. This time, climate advocates cheered as nearly every nation in the world agreed to maintain global temperature rise to “well below 2ºC.” With Kyoto and Copenhagen in the rear-view mirror, the principal drafters of Paris sought to develop a hybrid agreement model by combining successful aspects from the previous climate conventions. Paris infuses the bottom-up flexibility of Copenhagen, for increased participation, with the top-down rules structure of Kyoto, for increased compliance and ambition. Paris is designed as a long-term commitment and uses a “ratcheting” system to increase the rigor of commitments as time passes.
The text of the Paris Agreement is reminiscent of a constitution. It enumerates certain goals but leaves room for individual countries to determine how they will meet those objectives. Therefore, Paris creates a firm foundation for continued collaboration. The agreement requires each signatory nation to establish non-binding “nationally determined contributions”—voluntary emissions cuts , like those in the Copenhagen Accord, that they intend to achieve. But unlike the Copenhagen Accord, the reporting provisions of Paris are centrally designed and binding. Each nation is required to report emissions based on its individually determined goals. By pairing the voluntary and flexible nationally determined contributions mechanism with a binding mechanism for reporting greenhouse gas emissions, Paris creates a system of international peer pressure. This is the primary means of ensuring states’ compliance with their nationally determined contributions.
The lack of strict, legally enforceable goalposts is worrisome. But in the wake of Kyoto’s shortcomings and the flop that was Copenhagen, Paris attempts to find middle ground. The assumption is as follows: voluntary emissions reductions will bring nations to the table, top-down rules will ensure common evaluative standards, and—once parties are at the table—there will be peer-pressure to encourage compliance. As I describe below, this works only if the United States is seated at that table.
Sachs––Breakdown and Breakup
The conventional scholarly narrative, at least according to Sachs, is that Paris is different. Paris, the “conventional” scholars say, will be a success as a result of increased international peer pressure. In this scenario, there will be an “upward spiral” of climate-forward action. This scenario would see the Paris Agreement work as intended. Governments commit, achieve, and reduce carbon emissions. At the same time, energy efficiency, renewable energy deployment and battery storage technologies rapidly proliferate. Finally, a carbon capture system attacks carbon in the atmosphere from the other side. In effect, Paris sets the stage for meeting and beating the challenge of climate change. While Sachs describes this scenario as the intended vision of Paris, he criticizes it as unpersuasive and “overly virtuous.” Instead, he describes Paris as a watered-down compromise, and argues that climate change creates “intractable incentives towards non-cooperation and free-riding.”
Sachs details an underwhelming future in his “breakdown scenario” where parties fall short of emissions reduction pledges and subsequently reduce the ambition of future pledges. This “slow-walk,” as Sachs describes it, will result from frustration with other parties that show minimal ambition or sincerity in targeting goals. Sachs says, “[a]s parties recognize their inability to halt the global rise of climate-disrupting emissions after a decade of implementing the Paris Agreement, acrimony and dissension will increase, and the number of committed nations may dwindle.”
In an even more apocalyptic vision, Sachs’ “breakup scenario” involves the complete collapse of the agreement. Sachs argues that the breakup scenario may occur as increasing environmental stressors “shock the system.” Given Paris’ voluntary structure, like the Copenhagen Accord, parties may choose to abandon their commitments, recognizing that Paris does not effectively compel compliance. This may lead to “small clubs” of nations exerting financial power, imposing trade sanctions, and levying taxes to compel emissions reductions. This “small clubs” outcome has two flaws. First, it follows an us-against-them paradigm where powerful nations bully the less powerful into submission. Second, this scenario may simply prove too little too late.
Why Sachs is Wrong
Sachs’ description evidences the bad––the doom and gloom. But it is only one view, and that view neglects a few things. The first and most important hurdle to Paris as a success story has been lifted. The United States has rejoined the agreement. This sends a major signal to the world.
This is not the first trip to the proverbial climate rodeo, and world leaders have experience with the challenges of these agreements. The overarching goals of a climate regime are effectiveness and equitability. For a climate regime to be effective, it must attract wide––and ideally universal––support and participation. If, for instance, the European Union is in and the United States is out, the agreement cannot be effective. For a climate regime to be equitable, it must consider the multiplicity of factors that affect different stakeholders. Nations with significant emissions will simply leave the table if the treaty creates too much culpability for historical emissions. On the other hand, if an agreement ignores historic contributions and starts the emissions counter at zero, developing nations in the global south shoulder a greater burden while contending with other important agendas such as food security and access to healthcare, and may leave the table. In Sachs’ critique, he ignores the delicate equipoise woven by Paris in balancing these competing goals. That balance, which Daniel Bodansky calls the “Goldilocks solution,” must be neither too strong nor too weak.
Further, as Elliot Diringer wrote, a few years before Paris, “[h]aving learned hard lessons in Copenhagen, governments are tempering their expectations this time around.” Nations now recognize the value in “a looser pact” if it gets parties “on board and offer[s] the promise of strengthening action over time.” This allows for “creativity and compromise” while promoting transparency in the process. “In turn,” Diringer says, “[this] can strengthen countries’ confidence in one another, in the process, and in our collective ability to overcome the climate challenge.”
Part of the disconnect here is that Sachs views Paris as an end rather than as a means. In that light, perhaps he has a point. But Paris is much better understood as a means than an end. Bodansky helps clarify this point when he describes Paris as “provid[ing] a firmer foundation on which to build than its more ambitious predecessor, the Kyoto Protocol.” Indeed, this foundation provides for transparency and progression, and now that it is backed by the weight of U.S. involvement, there is significant support for the idea that soft diplomacy will be an adequate enforcement mechanism.
Robert Faulkner echoes this sentiment: “[t]he question now is not whether the Paris Agreement will ‘fix’ global warming, but whether it provides a robust yet adaptable frame work for developing and sustaining long-term political commitment to an effective global response.” Sachs’ scenarios suggest that Paris was designed as a cure-all––it wasn’t. Paris sets the table by establishing a clear goal to keep warming below 2ºC, a set of rules, and a system of international peer pressure to keep signatory nations on track.
The second point that Sachs neglects is the importance of political leadership by the United States. Sure, during the Trump Administration there was much cause for skepticism. But even during the Trump presidency, states and regional actors were making significant strides towards compliance. The U.S. has come a long way since the Senate’s 95-0 rejection of former Vice President Al Gore’s Kyoto Protocol. Now the full weight of the federal government is behind the plan. Climate leaders control both houses of Congress and the White House. U.S. leadership on everything from renewable energy to supply chain agreements changes the scope of what Paris can accomplish. Paris will not result in breakdown or breakup because world leaders are at the table with a target in sight, and Paris provides the necessary flexibility to adapt to changing needs.
Paris and the Future
As Richard Faulkner writes, “Paris provides a more realistic approach to achieving this vision, but it is not the end of the journey, in many ways it is only the beginning.” While Sachs might repudiate these “conventional scholarly narratives,” he is wrong to do so. Indeed, “[w]hether we see the glass half full or half empty, Bodansky says, “depends on our perspective.” Will we ever prevent some actors from free riding? Will China and United States agree in perfect harmony? Will we avoid all of the tragedies that are expected to occur due to the climate crisis? The answer to each of these questions is no. However, in Paris, the global community has won a significant battle in the fight to slow the effects of climate change. In Paris, there is hope and there is a cognizable, yet imperfect means to an end. Now, with the Biden Administration back at the international climate table, the real work begins.