Attorneys Eye Glasgow talks about progress on many climate issues

Corporate adaptation measures, carbon offset policy and new US regulatory responses are among the top issues lawyers say they are watching at the upcoming UN climate meeting talks.

The trajectory of the climate crisis hangs in the balance in Glasgow, where more than 197 countries will meet from October 31 for the two weeks COP26 Mountain peak. There they will reinforce their commitments to reduce greenhouse gas emissions under the 2015 Paris climate accord and tie its loose technical threads.

“This COP is seen as particularly important because countries are not on track to meet the temperature targets set out in the Paris agreement,” said Daniel Bodansky, a professor at the Sandra Day O’Connor College of Law in the United States. Arizona State University.

The main objective in Glasgow is for countries to commit to reducing pollution sufficiently in the short term to prevent global warming from exceeding 1.5 degrees Celsius above pre-industrial temperatures. The Biden administration is commit reduce its greenhouse gas emissions by 50-52% below 2005 levels by 2030.

There’s a lot on the table besides carbon reductions. Major polluters must commit to funding emission reductions, figure out how to help pay for developing countries’ climate adaptation measures, and how to help those countries that suffer the most loss and damage from climate change.

A thorny issue of how carbon trading will be counted needs to be resolved, as well as whether all countries should commit to a common timetable for emissions reductions.

Ultimately, the success of COP26 and the Paris climate agreement depends on individual country politics, since emissions cuts and climate finance pledges are voluntary.

“There will be a lot of negotiation on technical issues, but the macro decisions on ambition and funding are made in national capitals,” said Michael Gerrard, founder of the Sabin Center for Climate Change Law at the University of Columbia.

Here are the key issues practitioners are watching as COP26 unfolds:

New rules

The Biden administration could use the summit as a springboard to make new commitments affecting domestic regulation. This is especially true as hopes fade for Congressional approval of climate provisions such as the Clean Electricity Performance Program.

Some lawyers are keeping a close eye on how government commitments at COP26 will accrue to their clients, said Margaret Peloso, a partner at Vinson & Elkins LLP who specializes in climate change risk management and environmental litigation.

“If these are the things that governments say they are willing to commit to and that we have to do, are my clients going to face the same demands, or more stringent demands, from the stakeholders and shareholders? she says.

Without congressional support for the climate goals the White House will present at the summit, the credibility of the United States to achieve them will erode. The White House should therefore announce stricter emissions regulations instead.

“They will make commitments on what the president has control over,” said Hana Vizcarra, an attorney in Harvard Law’s Environmental and Energy Law Program.

The White House will send more than a dozen senior officials to the summit, each of whom can use it to announce plans for major new climate regulations.

Interior must release a report at all times on the future of the federal oil and gas leasing program, which is critical to the agency’s climate program. The EPA is also expected to announce possible regulations on methane emissions from existing sources, a move seen as important to stem U.S. contributions to global warming.

“We are going to be very observant every day until the start of the conference or during the conference to see what each of these agencies is rolling out,” said Ethan Shenkman, partner at Arnold & Porter Kaye Scholer LLP and former associate general counsel at the EPA in the Obama administration.

Carbon markets

One of the biggest unresolved issues of the 2019 climate talks in Madrid is how countries can use international carbon markets to cut emissions under Article 6 of the Paris Pact.

The idea of ​​Article 6 is to use carbon markets to encourage emission reductions where they can be achieved most efficiently, but the stricter the rules, the higher the transaction costs, said Bodansky.

Questions remain about how emissions reductions are counted and how the rules will prevent two countries from counting the same emissions reductions against their targets.

Uncertainty surrounding carbon trading rules has slowed work on carbon offset projects around the world. and corporate client attorneys will monitor for clarity how the emissions reductions are working, said Brook Detterman, director of Beveridge & Diamond PC in Boston.

“I have seen several clients not develop projects due to uncertainty as to how local governments in those countries will approach or want part of the project, with some uncertainty as to the commercialization of credits in the framework of the Paris agreement,” he said.

Corporate climate commitments

More than just negotiations between countries, the summit is also a bit of an exhibition of climate activism, with corporate climate announcements and colorful public side events designed to pressure diplomats at the negotiating table.

Companies could take inspiration from the government’s action in the talks to make their own commitments, said Peloso of Vinson & Elkins. Royal Dutch Shell plc engaged to climate goals as the 2018 talks in Poland began. Dozens of companies announcement emissions reductions at the Madrid talks in 2019, including International Airlines Group.

“We have seen a shift over time towards much higher expectations of private governance – that we allow in our society the rise of these global megacorporations which in many ways carry as much weight as governments,” Peloso said.

Companies face as much scrutiny as governments for their contribution to climate change, and companies could make climate announcements to coincide with the talks, she said.

“One thing I’m trying to watch very carefully is how the commitments made by governments not only will impact on the types of customers we have” in terms of new regulations, but whether corporate customers will report that they will make more ambitious climate commitments than governments, Peloso said.

Coalitions of governments and local organizations will play a central role in impacting COP26, as the US and some other high-polluting countries have tenuous domestic political support for the climate targets they are bringing to Glasgow.

UN-sanctioned Race to zero campaign is one to watch, Bodansky said. It is made up of thousands of cities, universities, investors and companies promoting net zero initiatives around the world ahead of the summit. “COP26 is the focal point of all these political efforts,” he said.

Teresa H. Sadler