United Nations climate change conference

Our global climate change team in Poznan

A team of lawyers from Norton Rose LLP attended the international climate change negotiations held in Poznan, Poland from 1-12 December 2008, on client instructions. These negotiations included the 14th Conference of the Parties to the UN Framework Convention on climate change (COP 14) and the 4th Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (CMP 4).

Our brief was to attend negotiating sessions of particular interest to those engaged in the carbon market and produce daily reports summarising the outcomes of these sessions. The Norton Rose Team attended plenary sessions of the COP, CMP, SBI, SBSTA, AWG-KP and AWG-LCA, attended contact group meetings on key agenda items, attended formal and informal meetings, and interfaced directly with climate negotiators.

We held two pre-Poznan briefing sessions in webinar format, covering:

• the process of the negotiations; and
• the substance of the negotiations.

We also produced a final detailed analysis of the outcomes and what these mean for Copenhagen.

This summary report highlights a number of key decisions agreed to by Parties in Poznan in areas of key interest to our clients. The report assumes a high level of knowledge with respect to the international legal climate change framework (primarily the UNFCCC and the Kyoto Protocol) and familiarity with the legal and political context of the Poznan negotiations.

We will be repeating the same process in Copenhagen on behalf of clients and we would be happy to discuss how we could assist you there.

Summary of Poznan outcomes

Status of negotiations

Poznan marked the half-way point between adoption of the ‘Bali Action Plan’ in December 2007 by the Parties to the UN Framework Convention on climate change at COP 13, where the international community agreed to work toward a comprehensive climate agreement by 2009, and COP 15, when this long-awaited agreement is expected to be adopted. Poznan also reflected the conclusion of the third year of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties to the Kyoto Protocol, established in 2005 to consider a set of new developed country targets for the Protocol’s second commitment period. This work is also scheduled to be completed in 2009.

Shape of the future agreement

The issue here is whether the agreement reached in Copenhagen is likely to be a comprehensive new legally-binding agreement that wraps in Kyoto targets, or whether the deal reached in is likely to build upon Kyoto and have a series of flanking agreements to enhance implementation of the Convention. In Poznan this issue was not discussed directly, although a number of decisions were taken that build directly on the Kyoto architecture, making this framework more secure. Under the AWG-LCA Parties have been requested to submit their views on the possible content and form of the Bali Action Plan’s ‘agreed outcome’ as soon as possible. Under the AWG-KP, Kyoto Parties have been requested to submit their views on legal implications arising from the work of the AWG-KP under Article 3.9 of the Protocol by 15 February. These views will give a better sense of countries’ expectations.

Targets

Future emission reduction targets were discussed under two separate bodies and work streams: the AWG-LCA and the AWG-KP. The AWG-LCA considered targets in the context of “a shared vision for long-term cooperative action, including a long-term global goal for emission reductions”. The AWG-KP considered ranges of emission reduction objectives for individual developed countries for the post-2012 period as well as “means” to achieve these targets.

The AWG-LCA held both an in-session workshop and a Ministerial Roundtable on ‘shared vision’, in the hope of advancing toward consensus on the level of global ambition needed going forward. No agreement resulted, though many countries expressed their views on appropriate long-term and mid-term emission reduction goals for the climate system and for groups of developed and developing country Parties. Some countries expressed these in terms of percentage emission reductions relative to 1990 levels; others expressed their views relative to greenhouse gas concentrations or maximum global average surface temperature increases. The AWG-LCA Chair produced a Chair’s Summary of the in-session workshop (FCCC/AWGLCA/2008/CRP.6).

Under the AWG-LCA, calls for global stabilisation concentrations ranged from “as far below 450 ppmv as possible” to “well below 350 ppmv CO2eq.” Limitations sought on global average surface temperature increases ranged from 2 degrees to “well-below” 2 degrees to below 1.5 degrees above pre-industrial levels. Calls for Annex I Party collective reductions by 2020 ranged from “10-40 per cent” to “more than 40 per cent” below 1990 levels by 2020 and from at least 50 per cent by 2050 to “more than 95 per cent” by 2050. Mexico, a non-Annex I Party, pledged to reduce its emissions by 50 per cent by 2050. Brazil pledged to reduce deforestation within the Amazon by 70 per cent per cent over the next decade.

The AWG-KP discussed ranges of mitigation objectives for Annex I Kyoto Parties. It again referenced the IPCC 25-40 per cent range for Annex I Parties without explicitly adopting this range to guide Annex I commitments in the post-2012 second commitment period. It left open the door to revisit this indicative range based on newer scientific information.

Advancing the work of the AWG-LCA and the AWG-KP

Both the AWG-LCA and AWG-KP agreed on work programmes for the coming year. Both bodies will meet in March/April 2009, June 2009, August/September 2009 and December 2009. A fifth session will be scheduled if needed.

The AWG-LCA has consolidated the ideas and proposals of Parties on elements of the Bali Action Plan (related to shared vision, mitigation, adaptation, technology and financing) into an “Assembly Document” (FCCC/AWGLCA/2008/16/Rev.1). This document will serve as an input into the negotiating process. The AWG-LCA has agreed to switch into full negotiating mode in 2009. The AWG-LCA Chair has been requested to prepare a paper on areas of convergence and options for addressing areas of divergence for the March/April session, and to prepare a draft negotiating text for the June session. An in-session workshop on paragraphs 1(b)(i) and 1(b)(ii) of the Bali Action Plan (which raise the concepts of “measurable, reportable and verifiable” in connection with developing country mitigation efforts, and “comparable effort” among developed country Parties) will take place in March.

The AWG-KP has identified a list of issues that require further work. These include: the scale of emission reductions to be achieved by Annex I Parties in aggregate; individual and joint contributions of Parties; the duration of the commitment period(s); how targets could be expressed, including base years; mitigation potential; improvements to emissions trading and the project-based mechanisms; coverage of gases, sectors and sources; legal matters; possible approaches targeting sectoral emissions; and aviation and marine bunker fuels (FCCC/KP/AWG/2008/L.19). Parties have been asked to submit views by 6 February 2009 on how possible improvements to emissions trading and the project-based mechanisms would function.

Clean Development Mechanism

The CMP agreed on further guidance to the CDM Executive Board on:

• governance of the CDM;
• accreditation of DOEs;
• methodologies and additionality;
• regional and sub-regional distribution; and
• capacity building.

A number of countries called for consideration of carbon capture and storage (CCS) as an eligible project activity under the CDM. A number of countries objected, as has occurred at previous negotiating sessions. In compromise language, the CDM Executive Board was tasked to “consider the implications of the possible inclusion” of CCS and report back to the CMP. Brazil called for the inclusion of activities involving “forests in exhaustion” as possible afforestation/reforestation CDM activities. In parallel language, the CDM Executive Board was also tasked to consider the implications of the possible inclusion of these activities in the CDM.

Review of the Kyoto Protocol under its Article 9

Negotiations on extending the share of the proceeds (now levied on CDM) to joint implementation and emissions trading took place under this agenda item. Negotiations collapsed, with the loss of agreed text related to the CDM, privileges and immunities, and procedural elements for inscribing commitments for Annex I Parties in Annex B.

These issues will continue to be addressed under other agenda items going forward.

Land use, land use change and forestry (LULUCF)

Rules for accounting for land-use, land-use change and forestry activities were addressed in connection with Annex I Party Kyoto targets, specifically in the context of “means” to assist Annex I Parties in achieving their mitigation commitments. The AWG-KP agreed that measures to limit or reduce GHG emissions and to enhance removals from LULUCF should continue to be available to Parties after the first commitment period. Appropriate definitions, modalities, rules and guidelines will continue to be discussed at future meetings. Parties have been invited to submit their views and proposals by 15 February 2009.

Reducing emissions from deforestation in developing countries (REDD)

REDD discussions under the Convention focused on methodological issues. The Parties agreed on a decision text that encourages robust national forest monitoring systems, capacity building and use of IPCC Guidelines and Good Practice Guidance. An expert meeting will be held in 2009, and a technical paper will be prepared on the cost of implementing methodologies and monitoring systems.

Technology transfer

In Poznan, technology transfer issues were discussed in primarily in the SBSTA and SBI. The COP adopted the Poznan Strategic Programme on Technology Transfer, endorsing a work programme presented by the Global Environment Facility which aims to scale up investment in the transfer of environmentally-sound technologies. The Expert Group on Technology Transfer presented three reports: on financing options; performance indicators; and a long-term strategy to support technology development, deployment and diffusion. Parties requested updated versions of these reports be presented to the AWG-LCA for its work on technology. The paper on performance indicators will contribute to AWG-LCA discussions on “measurable, reportable and verifiable” transfers of technology to support developing country mitigation efforts under Bali Action Plan paragraph 1(b)(ii).

Future sessions

Future sessions will take place as follows: 29 March to 8 April (Bonn); 1-12 June (Bonn); August/September (dates and venue to be confirmed); 30 November to 18 December (Copenhagen).