For anyone familiar the evolution of the UN climate regime, President Trump’s announcement to withdraw from the Paris Climate Agreement is a flashback to 2001, when then President Bush announced that the US would not ratify the Kyoto Protocol. The global community at that time reacted with shock, and was paralysed for years. It appeared completely unprepared, even though it had been clear that ratification of the Kyoto Protocol by the US senate would be a long shot at best, even under a supportive presidency. It had already taken four years to try to get the US on board, and it took another 4 years after the Bush announcement to patch together a coalition of countries to bring the Kyoto Protocol into force without the US. The compromises made along the way undermined much of its potential to solve the climate crises. For the remainder of the Bush presidency, the US made every effort to bloc negotiations on a replacement for the Kyoto Protocol, largely paralyzing global efforts to address climate change in the process.

The US announcement to withdraw from Paris did not come as a surprise to anyone. It had been signalled repeatedly since the election of President Trump, and is consistent with the systematic dismantling of effective national climate policy in the US, a process that has been under way for much of 2017.

It is still far from certain what form the withdrawal will ultimately take, and whether it will be completed at all. The actual process cannot be initiated until November 2019, three years after the entry into force of the Paris Agreement. Until then, unless the US decides to leave the UN Climate Regime altogether, it will formally remain a Party to the agreement. Even then, it will take another year for the withdrawal to take effect. Added to the uncertainty are questions surrounding Trump’s ability to withdraw without congressional approval. In short, for the foreseeable future, President Trump’s statement is a political statement with no legal effect for much of his first term in office.  It will be interesting to see what role the US plays in the regime for the next few years, including during the important negotiations of the Paris Rulebook, and with respect to its various financial commitments.

The reaction of the global community to the US withdrawal from Paris is notable for its contrast to the reaction to the 2001 US abandonment of Kyoto. Rather than shock and paralysis, the early reaction has been an expression of resolve to carry on without the Trump administration. The isolation of the US administration at the recent G-7 meetings in Italy over climate change had already pre-shadowed the resolve of the developed world to move on without the US. India and China had similarly already signalled their intention to move ahead regardless of the US decision, as they have long since understood the air pollution, economic, and energy security benefits of transitioning away from fossil fuels. The emerging partnership between the EU, China and Canada was another clear sign of how isolated the US administration was becoming on this issue well before the June 1 announcement.

Perhaps most surprising to the casual observer has been the reaction from states and cities in the US and major corporate interests. The reaction has been remarkably similar to that of nation states, a combination of criticism of the decision to withdraw and a resolve to move ahead without the Trump administration. This is in stark contrast to domestic reaction to the Bush abandonment of Kyoto in 2001, a decision which was generally supported by the corporate sector in the US, and which only resulted in limited reaction from states and cities.

What accounts for the different reaction, both globally and in the US, and what are the implications going forward?

Some of the differences in reaction are rooted in the differences between Kyoto and Paris. The Kyoto targets were negotiated, not self-determined. Kyoto set penalties for missing targets, enforced through a strong compliance system. This means countries did not have full ownership of their Kyoto targets, and were rather acting out of a combination of outside pressure to set ambitious targets, meet their targets and the expectation that other countries would have to meet their targets. When the US pulled out, the Kyoto system unravelled because it meant that one key player in this equation would not meet its target.

Paris does not commit Nations to anything they have not voluntarily proposed to take on unilaterally. Under Paris, all countries have made such voluntary, unilateral commitments, not just developed countries. There are no penalties for failing to meet commitments, only transparency. In the short time since Paris was finalized in 2015, there has been a flurry of action in many key countries, with particularly encouraging signs of commitment from China and India. In short, the momentum toward effective implementation of Paris is much more clear in 2017 than it was for Kyoto in 2001.

Fundamental to the momentum toward implementation of Paris is that the economic opportunities and risks of the transition to a GHG neutral world are well understood in 2017, and many solutions are market ready. We know which sectors are at risk, and where the opportunities are. Key countries seem committed to ceasing the opportunities. Their effort to diversify their economies to reduce the reliance on fossil fuels has been underway for some time, reducing economic risks and more clearly identifying where the significant economic opportunities are. The scale of the economic opportunities, as well as the co-benefits of reduced harm from air pollution, and reduced costs for adaptation, disaster response and health care, is much better understood. In 2001, Europe was largely alone in taking advantage of these opportunities. It has since been joined by China, India, and Canada among others. As was demonstrated by the corporate reaction in the US, many US companies also understand the economic opportunities and are poised to pursue them.

In contrast to Kyoto, which focused exclusively on nation states, Paris recognizes the important role of subnational governments and non-state actors. Throughout the negotiating process and in parallel to the formal negotiations, considerable efforts have been made in recent years to engage much more directly with key actors beyond nation states. The reaction to the Trump announcement is a clear signal that these efforts are paying dividends.

It warrants pointing out the obvious, that the scientific context within which the world is reacting to US administration’s withdrawal is very different in 2017 than it was in 2001. Since 2001, the scientific community has become more uniform and clear about the consequences of inaction. Many more citizens in the US and around the world have experienced the harmful effects of climate change first hand. We have a much better understanding of the dire economic, social and environmental consequences of inaction. In many key countries the result of this strong scientific foundation has been to de-politicise the climate issue, meaning that the political debate is about how, not whether to deal with the climate crisis. Inaction, or waiting for the US to re-engage, is simply not an option politically in many countries.

Perhaps the most significant impact of the Trump administration’s decision to withdraw from Paris is its effect on the US position and influence in the global community. In 2001, the Kyoto Protocol had not come into force, and the US had not yet made a decision to ratify it. As disappointed as other countries may have been that the US decided not to join the Kyoto Protocol, it was its sovereign right to decide whether to join or not. In case of Paris, the US self determined its own commitments, it ratified the agreement, and it was instrumental in bringing the agreement into force. A withdrawal under those conditions does much more harm to the US reputation as a global actor. It sends the message that the US is not a predictable, trustworthy partner in the global community. The resolve of the global community to double down and push ahead without the US is likely just an early sign of the broader consequences for the US of its announced withdrawal from Paris.

The absence of US national leadership on climate change for the term of the Trump administration has been clear since Election Day. The dismantling of national efforts to reduce GHG emissions has been under way for some time. What was revealed on June 1 was the approach Trump would take globally, particularly in light of the importance of the issue to many of the US’s closest allies as clearly expressed only days before at the G-7 Summit. Domestic politics won out over international dimplomacy. The reality is that while Paris was specifically designed to bring the US into the global climate effort, Paris is much more resistant to short term abandonment of the issue by the US than Kyoto was.

The world needs the US to effectively respond to climate change, but the global effort to manage the climate crisis is not dependent on a one-term Trump administration. Much of the potential damage of the June 1 announcement can be mitigated by efforts at state, city and corporate levels in the US in combination with the resolve of Europe, other key developed countries such as Canada, along with emerging economies such as China and India, to push ahead without the Trump administration. Early indications are that this is exactly what is happening.

Meinhard Doelle,

Professor of Law,

Associate, Marine & Environmental Law Institute

The government of Nova Scotia has just released a discussion paper on its proposed Cap and Trade (C&T) System for provincial GHG emission reductions  (https://climatechange.novascotia.ca/). The C&T system is a key component of Nova Scotia’s contribution to Canada’s overall effort to implement the Paris Climate Agreement. Under the Paris Agreement, Canada commits to making a fair contribution to keeping global temperatures to well below 2 degrees, to implement Canada’s current commitments announced by the previous federal government, and to increase those commitments over time, at least every 5 years starting in 2018.  To do its fair share, Nova Scotia will have to significantly improve on the 30% reduction target by 2030.

The global goal of keeping temperature increases well below 2 degrees is driven by our growing scientific understanding that while there will be serious impacts even at those levels of climate change, meeting this target should allow the world to avoid the worst impacts, such as runaway sea level rise resulting from melting of polar ice and glaciers, collapse of the gulf stream, major disruption to food and water supplies, etc.

In practical terms, a fair contribution from developed countries such as Canada means decarbonizing our economies as soon as reasonably possible while allowing for a smooth transition of our economies and our workforces. The pricing mechanism is a key element of the Pan-Canadian Framework negotiated in 2016 (https://www.canada.ca/en/services/environment/weather/climatechange/pan-canadian-framework.html), because it ensures that over time (very gradually), sectors who have until now contributed to the problem without having to pay for the costs associated with climate change will not continue to have an unfair competitive advantage over alternatives that do not contribute to the problem.

Under the Pan-Canadian Framework, Nova Scotia has a choice of carbon pricing mechanisms. It can put in place either a C&T system or a carbon tax. The recently released discussion paper proposes a C&T System, a system that puts provincial limits on emissions from key sectors and allows participants to trade emission reduction allowances to reduce emissions at the lowest cost. The discussion paper outlines the following key design elements of the proposed C&T system:

• Sectors covered will be limited to those required to be included under the Pan-Canadian Framework (though both combustion and process emissions will be covered)
• All sectors covered will receive free allocations
• The overall cap will be negotiated with Environment Canada based on the minimum requirements, which in turn are based on modelling what would be achieved in those sectors with a carbon tax of $10 in 2018 going up to $50 in 2022
• The emission reductions expected from the electricity sector will be based on emissions expected from existing measures and regulations in place to reduce GHG emissions from electricity
• There will be an overall cap for all sectors included in the C&T System, and the free allowances will then be allocated to upstream actors in the sectors covered, meaning NSP, and suppliers of fossil fuel in Nova Scotia
• Fugitive emissions will not be included
• Other sectors (about 10% of emissions) will not be included, but could sell offsets into the system based on approved GHG emission reduction protocols for those sectors (agriculture, forestry)
• The C&T system will, at least for now, not be linked to C&T systems in other jurisdictions.

It seems clear from the discussion paper and the stakeholder consultations held by the Department of Environment on March 15th that while the province may be open to hearing views on these design choices, the province is currently not interested in changing these key elements of the system. There are other, more technical elements on which the province is more actively seeking input:
• Compliance periods
• Ability to bank and borrow credits
• Suitable protocols for offsets
• Solutions to new entrants into the system with significant GHG emissions

The initial comment period on the prosed C&T system concludes at the end of March, leaving little time for Nova Scotians to begin to understand the implications of the choices being proposed, let alone provide meaningful input. The province has explained that the rush is driven by its desire to have the C&T system up and running for 2018. To be fair, the province has indicated that it will continue to receive input as it continues to work on the design and implementation of the system over the spring and summer.

The 2018 timeline, of course, is driven by the Pan-Canadian Framework, which clarifies that the federal government will put in place a carbon tax in jurisdictions that do not put in place their own compliant carbon pricing mechanism by 2018. In provinces where the federal government implements a carbon tax, it has committed to pass on all revenues generated back to the respective province.

How effective is the C&T system proposed by the NS government? Much depends on your expectations. What the C&T system delivers is minimal impact on captured industries, minimal impact on consumers, minimal impact on the price of electricity and fuel in Nova Scotia and minimal GHG emission reductions. It seems designed to help the province meet the minimum GHG emission reduction obligations under the Pan-Canadian Framework, while minimizing any impact on Nova Scotia’s economy, good or bad. In, short, if you see the proposed C&T system as a threat to electricity and fossil fuel prices in NS, and to our economy, you will be very pleased.

If, however, you expected the proposed C&T system to ensure that we continue our successful path toward a GHG emission neutral, diverse economy that shifts from wasteful use of largely imported fossil fuels to the efficient use of renewable energy produced in our own province with all the economic, social and environmental benefits that come with this transition, you will be disappointed. The proposed C&T system, through its free allocation of allowances, does nothing to phase out the unfair subsidies to the fossil fuel sector.

The social cost of carbon is currently estimated by the US EPA to be in the range of $50 US per ton of GHG emissions (https://www.epa.gov/climatechange/social-cost-carbon), meaning any fossil fuel that does not contribute at least that much through a carbon pricing mechanism is being subsidies and is competing unfairly against lower GHG energy sources, as well as conservation and efficiency measures. The result is that we will continue to import largely foreign fossil fuel rather than invest in a local economy based on renewable energy, building retrofits, efficiency measures etc., and continue to make a disproportionate contribution to the climate problem.  Canada is among the highest per capita emitters of GHG emissions, and one of very few developed countries where emissions have not even peaked.

So what are we to do? We are clearly far from getting our C&T system right. To do so, would require time, careful analysis and a public dialogue on priorities and values rather than starting assumptions that all we care about is trying to preserve the status quo for as long as we can. Other jurisdictions have generally taken years, not months to design their C&T systems. A thoughtful approach would be to carefully assess key sectors (electricity, transportation, buildings, manufacturing, mining, oil and gas, agriculture, forestry), and consider their importance to NS in the short, medium and long term. We would consider which sectors are trade exposed, and what opportunities there are in each sector to achieve emission reductions in the short, medium and long term. This would be followed with an assessment of which sectors are likely to play an important part of a climate resilient, diverse and GHG emission neutral economy of the future.

Based on this analysis, we would then be in a better position to decide which sectors warrant protection in the short and/or medium term as a result of being trade exposed and important to our current economy. We could identify which sectors will be able to make the transition to GHG neutrality, and which combination of carrots and sticks would be most effective in helping each sector get there. We could identify which sectors are not likely to be part of our economy in the long term, and how we ensure we thrive economically, socially and environmentally through the transition away from these sectors to other sectors that will thrive in the carbon constrained future we are all facing, whether we like it or not.

This analysis would lead to rational and transparent decisions about which sectors to include in the C&T system, and which sectors not to include. It would lead to rational and transparent decisions about which sectors will receive free allocations in the short term, which will receive free allocations in the medium term, and by when the subsidies represented by these free allocations would be eliminated for each of the sectors.

It would result in rational and transparent decisions about the scale of emission reductions to be expected from each of the sectors included in the C&T system in the short, medium and long term to drive innovation. It would result in rational and transparent decisions about complementary measures needed to facilitate the transition, such as investment in the electrification of transportation and heating, retrofit programs for existing buildings and higher energy standards for new buildings. It would result in rational and transparent decisions about which sectors not included under the cap would be able to participate through offsets, and on what basis.

Clearly, such an approach to the design and implementation of Nova Scotia’s C&T system will take time. It will require background work, and it will require an active and transparent engagement of Nova Scotians for a considerable period of time, likely a year or two. How can we do that when we have a federally imposed deadline of 2018 for the design and implementation of Nova Scotia’s carbon pricing mechanism?

The answer lies in the Pan-Canadian Framework itself. It does not actually require Nova Scotia to have its system in place by 2018. What it says is that if Nova Scotia does not have its system in place by 2018, the federal government will implement a $10 per ton carbon tax in Nova Scotia and pass on all revenues from that tax to the Nova Scotia government. For 2019, the tax would increase to $20 per ton, and for 2020 it would reach $30 per ton, the price at which a provincial carbon tax has operated successfully in BC for a number of years with positive economic consequences. It is important to note that the $10 per ton tax will barely be noticed by most Nova Scotians in comparison to seasonal fluctuations in the price of fossil fuels for transportation and heating.

What’s more, there are simple and effective ways Nova Scotia could redistribute the revenues generated from this federally imposed carbon tax to ensure Nova Scotians who will be affected by the tax are not economically hurt during the year or two we would rely on the federally imposed tax while we design our C&T system. The revenues could be distributed back to Nova Scotians to ensure Nova Scotians who have no alternative, do not pay more to drive their cars or heat their homes than before the tax. One simple approach would be to divide the revenues from the carbon tax equally among all Nova Scotians, though there may be even better, more equitable ways to effect the distribution.

This approach would buy Nova Scotia the time needed to get the C&T system right rather than rush into a system that will be administratively expensive without meaningfully advancing the underlying objectives. It would give us the time we need to consider the best way to use the carbon-pricing tool to promote sustainable prosperity in Nova Scotia, to diversity our economy, to phase out our reliance on energy imports, to move toward GHG emission neutrality, and to do our fair share to protect the climate.

Meinhard Doelle,

Professor of Law,

Associate, Marine & Environmental Law Institute

To download some of my publications on related topics, including an article on the Paris Climate Agreement, see http://ssrn.com/author=715387.  

Earlier this month, the federal government announced its Pan-Canadian Framework on Climate Change, a plan to start implementing Canada’s commitments under the 2015 Paris Climate Agreement. The framework was fully supported by most provinces. Saskatchewan stood alone in opposing the carbon-pricing element of the agreement, with Manitoba appearing to link its endorsement of the framework to an agreement on health care funding. The federal government announced its intention to implement the carbon pricing mechanism over the objection of Saskatchewan, essentially by imposing a federal carbon tax in the province and returning the revenues to the province. As a result, we now have, for the first time in Canada, a federal provincial framework for meeting our international commitments to address climate change.

Nova Scotia supported the Pan-Canadian framework, after having only weeks before walked out of the negotiations over objections to the carbon pricing. In this post, I will explore the key elements of the framework as they apply to Nova Scotia, and consider how Nova Scotia’s commitments measure up in light of the Paris Climate Agreement.

It is important to consider Nova Scotia’s commitments under the framework in light of what it has already achieved. In short, Nova Scotia has, in the past decade, moved from climate mitigation laggard to a leader in emission reductions in the electricity sector, while making more limited progress in other areas (such as improving the energy efficiency of new buildings and of cars). Nova Scotia was the first province to impose binding emission reduction targets on the electricity sector, and it imposed aggressive renewable energy targets for 2015 and 2020. It has become a leader in conservation and efficiency in the electricity sector, largely through the creation of an independent efficiency agency in the form of Efficiency One.

The Pan Canadian framework recognizes Nova Scotia’s past efforts to reduce emissions from the electricity sector, and it offers Nova Scotia considerable flexibility going forward. This flexibility can be used to further accelerate progress, but this is by no means guaranteed in light of commitments to date. Much will depend on how key elements, such as the equivalency agreement on coal and the Cap and Trade system are implemented, and whether they are supported by further regulatory action and incentives to complete transition from fossil fuels to renewables. I will now discuss each of the key elements in a bit more detail.

The first key element of the framework is the agreement on the phase out of coal. Rather than implement a complete phase out by 2030, as is the case in many other provinces, Nova Scotia has instead committed to achieving the emission reductions that would be associated with a full phase out of coal, but has retained the flexibility to keep some coal plants in operation past 2030 as long as their use does not compromise the emission reduction target. The basis for this was essentially that a full phase out of coal by 2030 would require a switch to natural gas, whereas the preferred approach for Nova Scotia appears to be to retain some coal and use this flexibility to switch directly to renewables, thereby eliminating the need for investments in natural gas infrastructure that would then risk becoming stranded assets.

So far so good. The underlying assumption of this approach is that we cannot reasonably get to 100% renewables by 2030, either because we lack the renewable production capacity to meet peak demand (NS’s peak demand is currently in the winter), or because we cannot match supply and demand with the renewable energy mix and grid connections we have without using some coal as a backup. This has been the subject of debate every since Nova Scotia began its efforts to integrate more and more renewables into the grid. The answer will likely depend on a variety of factors, such as the ability to utilize hydro power to back up more intermittent sources of electricity, the distribution of wind and solar across the province, the use of smart grid technology and storage, improvements to the grid and utilizing and/or improving our connections to New Brunswick and Newfoundland.

As we continue to integrate more and more renewable energy into our energy mix, the answers to some of these questions will become clearer. A critical issue in the implementation of the framework in Nova Scotia will be to ensure there continue to be adequate incentives for Nova Scotia to maximize the use of renewables and to complete the transition to renewables as quickly as practically possible. We need to build into the system opportunities and incentives for continuous improvements. This becomes particularly clear when we consider Canada’s commitments under the Paris Climate Agreement, discussed at the end of this post.

This brings us to the second key element of the framework, the carbon pricing commitment, and the specific approach Nova Scotia has selected. Nova Scotia has chosen a Cap and Trade system with free allocation of allowances, and without linking to other jurisdictions. What this means for the electricity sector is that it will be granted free allocations (presumably up to the limits it is already planning to achieve under the new coal equivalency agreement, yet to be finalized). This would mean that any incentive for this sector to do more would either be a result of unilateral regulatory action by the province to require an acceleration of the transition, or through the opportunity for NSPI to sell its free allocations (that it would not need if it achieved additional reductions) to other NS sectors caught under Nova Scotia’s Cap and Trade system.

A critical design question will be what other sectors to include in Nova Scotia’s Cap and Trade system. Other sectors that contribute to Nova Scotia’s GHG emissions include transportation, non-electric heating of residential and commercial buildings, agriculture, oil and gas, mining, and manufacturing.  It is not clear at this point that all these sectors will be included in the Cap and Trade system, though agriculture is not included in any of the provincial pricing mechanisms, so it is unlikely to be included in Nova Scotia. Inclusion of each of these sectors in the system will be the first issue. For sectors not included, regulatory measures and other incentives will have to be implemented to ensure they do their fair share toward GHG emission neutrality.

Beyond the basic choice about inclusion in the system, to understand the implications of Nova Scotia’s Cap and Trade system for each sector and for Nova Scotia’s overall effort, the following are key:

• How much free allocation will/should each of these sectors receive? Are there sectors that can/should not receive free allocations?
• What measures can each sector take to reduce emissions?
• What costs and economic opportunities are associated with the emission reductions in each sector? Who will bear the costs? Who will benefit?
• What efforts beyond the Cap and Trade system are planned by the province (either on its own or in coordination with the federal government or other provinces) to assist with, encourage, or require efforts to transition to GHG emission neutrality?

For two of the key sectors, transportation and heating, it seems clear that the solution rests with electrification. The Cap and Trade system alone is unlikely to facilitate such a transition, though by limiting the free allocation of credits, and by restraining them more and more over time, these sectors can be encouraged to support this transition. It will be critical for governments to send clear short and long-term signals and to take additional measures to support this transition. Among the measures will be building codes that push and require best practices in new construction and renovations, incentives to electrify heating while utilizing storage and smart grid options, charging stations for electric vehicles, and incentives to utilize the storage capacity of vehicles to accommodate more renewable sources of electricity.

For the remaining sectors, including agriculture, manufacturing, oil and gas, and mining, it is less clear where the opportunities to achieve reductions are. Certainly, conservation and efficiency gains can be encouraged through an appropriate limit of allocations under the Cap and Trade system. Some aspects of these sectors may be amenable to electrification. An interesting question with respect to oil and gas will be how the emissions from this sector are treated as Nova Scotia completes its transition to renewables, and the fossil fuels extracted are increasingly used for export. Similar questions may arise for emissions from mining and manufacturing for export purposes.

Ultimately, how sectors are treated should be decided based on a number of factors. Is the sector able to pass on the cost or will the sector have to bear the cost? How important is the sector to Nova Scotia’s economy now? How important is it expected to be in 2030? Does the sector have a future in a GHG emission neutral world?  In this regard, it is clear, for example, that fossil fuel extraction is a transition industry at best. Sectors such as agriculture are clearly part of our future, but it is unclear how it will get to GHG emission neutrality. Other industries may or may not be part of the future depending on their ability to adjust to a GHG neutral world. Some are important parts of our economy today, others are not.

The effectiveness of the Cap and Trade system will depend in large part on the allocations granted to each of the sectors. It seems clear that the electricity sector will have opportunities to achieve reductions beyond its allocations, meaning it will have the opportunity to sell allocations to other sectors who will may face difficulties achieving emission reductions. The experience from elsewhere (such as the EU ETS) is clear. Those who are caught under a Cap and Trade system have an incentive to underestimate their ability to achieve emission reductions. Furthermore, governments sometimes lack the expertise to challenge these claims. The result is an over-allocation, which fails to provide the incentive needed to push all sectors to innovate and seriously pursue opportunities to transition to GHG emission neutrality. The ability and willingness to make adjustments as needed will be critical to the success of the Can and Trade system.

In short, the Pan Canadian Framework contains important elements of a successful strategy for Nova Scotia to continue on its path to GHG emission neutrality and to accelerate the transition. There is every reason to expect that we will continue with efforts to increase our reliance on renewable energy for electricity. However, important work remains to be done. The allocations under the proposed Cap and Trade system will be critical. They need to be carefully designed to provide adequate incentives to continue and accelerate the transition from fossil fuels to renewable energy.

A price on carbon alone, especially through a Cap and Trade system with free allocations, will not ensure the needed transition. Other incentives and regulatory measures will be needed. Nova Scotia had already demonstrated the benefits of regulatory action through its regulations on GHG emissions in the electricity sector, and its use of targets for renewable energy, new buildings, efficiency, etc., through Nova Scotia’s innovative Environmental Goals and Sustainable Prosperity Act. Incentives for innovation in support of this transition in all sectors of the economy will be another key element, as will continued efforts to improve the efficient use of energy in Nova Scotia.

Having considered the Pan Canadian Framework from a Nova Scotian perspective, it is important to view Nova Scotia’s contribution to the national plan in the context of the global effort to address climate change. The Paris Climate Agreement, which was negotiated just a year ago, was ratified by Canada this summer, and came into force in November, commits the global community to keeping global temperature increases to well below 2 degrees while making efforts to keep them to 1.5 degrees. It does this by mandating all member States to set nationally determined mitigation, adaptation and finance contributions that will be subject to a 5 year review for global adequacy along with a commitment from States to increase their ambition over time.

Key elements of the Paris approach to climate mitigation are the combination of nationally determined commitments, global goals and oversight, and a commitment by States to increasing ambition over time. In essence, in return for having control over national commitments, States agreed to those commitments serving as a floor rather than as a ceiling. The current 2020 and 2030 commitments were assessed by UNEP in the lead up to Paris, and were found to be inadequate by around 15 GT by 2030. This significant gap was formally acknowledged in Paris. Parties are expected to make up this gap by increasing their 2020 and 2030 contributions beyond their current nationally determined contributions. What this means for Canada is has in fact committed to do more than meet its current 2020 and 2030 targets.

So how does the Pan-Canadian framework measure up? Canada’s business as usual emissions for 2030 without climate policies and measures are estimated to be around 815 MT. Climate policies and measures currently in place and those announced as part of the Pan Canadian framework (including HFC regulations under the Montreal Protocol on Ozone Depleting Substances) are expected to reduce Canada’s 2030 emissions to about 565 MT. Canada’s current self-imposed 2030 target is 523 MT. This target is based on the nationally determined contribution filed by the previous conservative government. Canada’s target has not changed since the change in government in the fall of 2015.

Where does this leave Canada? With full implementation of the Pan Canadian Framework, we will be well on our way toward our 2030 target (having previously missed our Kyoto target, and our previous government’s 2020 target). We will, however, require additional efforts to be put in place to meet our 2030 targets, and we are expected to and have promised to do more. As one of the few developed countries that failed to meet its Kyoto target and is unlikely to meet its 2020 targets, and as a developed country with among the highest per capita emissions and highest capacity to reduce emissions, the expectation is that Canada will make a significant contribution toward closing the 2030 emissions gap.

In short, Nova Scotia needs to view its approach under the Pan-Canadian Framework as a floor, not a ceiling. It should move to implementation in a manner that makes it clear that more is expected, and move to accelerate action as opportunities arise. Regulatory action for key sectors, incentives, and adjustments to the Cap and Trade system will be key for effective implementation consistent with our Paris commitments and our moral obligation to the rest of the world and to our own future.

Meinhard Doelle,

Professor, Schulich School of Law

To download some of my other publications on climate change, see http://ssrn.com/author=715387.  

I recently completed a review of “Disappearing Island States in International Law” by Jenny Grote Stoutenburg (Brill Nijhoff, 2015). The book explores the readiness of international law to deal with the loss of landmass of island states as a result of climate change. It is a fascinating read in its own right, as it explores an issue that will seriously challenge the international community in the years ahead.

It also an important reminder that there are many areas of law, both domestic and international, that were developed on the assumption of a stable climate, an assumption that no longer holds true. The book therefore offers inspiration for new areas of research for legal scholars in many fields of law. The following is a brief overview of the book and its key findings.

The December 2015 Paris Climate Agreement has introduced some optimism that the global community can avoid the worst impacts of climate change for the first time in over a decade. However, time is short, and even under the most optimistic scenarios, it is difficult to see how the dire impacts predicted for low lying small island states can be avoided. Many have started to feel the impacts already.

The book is structured in three Parts. Part 1 sets the political and scientific context for the legal issues explored in the remainder of the book. It starts with a brief overview of the development history of small island states, and the treatment of small island states in international law. This is followed with a summary of the role of small island states in the climate negotiations. An overview of the impacts of climate change on island states is provided, with a focus on sea level rise and the resulting risk of island abandonment. Finally, Part 1 offers a summary of the response to climate change under the United Framework Convention on Climate Change and its Kyoto Protocol.

The focus of the remainder of the book is on two interrelated issues. Part 2 of the book considers what happens to maritime boundaries and maritime entitlements as island states lose landmass due to sea level rise. Part 3 of the book then considers what happens to the status of an island state in international law as it gradually loses its landmass, and at what point it might lose its statehood.

Each topic is covered by first considering how island states would be treated under international law as it currently stands. The book then turns to possible solutions for each under different circumstances, with a focus on proposals for pragmatic changes to international law to allow for equitable treatment of small island states.

For each of the two basic questions, the book considers a broad range of circumstances, such as islands gradually becoming uninhabitable due to the cost or futility of fortification, islands losing landmass and maritime zones, the potential of islands turning to “rocks” or “low tide elevations”, islands being turned into artificial islands in response, islands being depopulated in response, island states negotiating for territory elsewhere in response, island states merging with other states, and island states being governed from governments in exile.

The book does raise a few other issues related to the threat of sea level rise to island states. For example, there is reference in various sections of the book to the issue of climate refugees, but the challenges they pose to international refugee law are not addressed in any detail. The focus throughout is on loss of maritime and land territory and the implications for the statehood of island states.

Part 2 offers a thorough and dispassionate coverage of the law as it stands with respect to maritime zones and the continental shelf of island states, and how they will be affected by loss of landmass. The book hones in on the problem of ambulatory baselines, and the effect on territorial sea and EEZ in particular. The author then explores options for “final and binding” and “permanent” fixing of outer limit of continental shelf under Article 76 of UNCLOS, and the potential for this to offer protection for island states facing loss of landmass.

The conclusion reached is that ambulatory baselines are at the heart of the problem for island states facing loss of landmass from sea level rise. The author first considers the effect of maritime boundaries settled through agreements between states and through judicial pronouncements on the ambulatory baseline problem, and the effect of loss of statehood on the effect of such agreements or judicial pronouncements on maritime boundaries, and concludes that such boundaries offer some protection.

Part 2 then offers a detailed consideration of pragmatic solutions, largely centered around the idea of stable maritime zones and the proposal that deterritorialized island states be allowed to continue to exercise sovereignty and control over their maritime zones. The focus then shifts to implementation of the proposed solution. The author considers three mechanisms for implementing stable maritime zones. They are customary law options, the option of amending the UN Convention on the Law of the Sea (UNCLOS), and the possibility an UNCLOS implementation agreement, based on extension of the 76(9) approach for continental shelf claims to the territorial sea and the exclusive economic zone. Advantages and limitations of each option are explored, considering both practical and conceptual challenges. The implementation agreement is favoured for practical reasons. Other steps are explored as possible complements, including a UN General Assembly resolution.

Part 3 of the book again starts by offering a very thorough and dispassionate coverage of the law as it stands. It explores the legal threshold for an island state losing statehood, and then considers the key elements of statehood in some detail. With respect to the permanent population requirement, the author concludes that the presence of caretakers on the island would likely a minimum threshold. With respect to the defined territory requirement, a key observation is that even if maritime zones are preserved as explored in Part 2, these would not meet the defined territory requirement, as it is based on land territory. With respect to government, the issue of in situ versus in exile government is highlighted.

The author concludes that loss of statehood is a real risk under current international law rules, one that may materialize under the more extreme examples, such as island turning into “low tide elevation” with no in situ population or government. The problem, however, will arise incrementally, and there are questions surrounding the competence to declare loss of statehood.

Part 3 includes an assessment of the effect of key peremptory norms of jus cogens on the statehood issue, such as right to self determination, the right to permanent sovereignty over natural resources, fundamental human rights, fundamental right to “state survival”, and prohibition of massive pollution of the atmosphere. The author explores whether these principles might obligate states to continue to recognize a deterritorialized state.

Part 3 concludes with a detailed consideration of pragmatic solutions and implications of loss of statehood. Having concluded that there is no clear duty for continued recognition of a deterritorialized island state, the book considers avenues for international law to facilitate the continued recognition of statehood out of a sense of international justice and solidarity. Deterritorialized statehood is explored as a possible response. Finally, some implications of loss of statehood are explored for the population, for membership in international organizations, treaty obligations, and for debts and assets is considered and compared to the deterritorialized state option.

The book does what it promises to do. It offers an authoritative exploration of two key international law issues associated with the implications of sea level rise for low lying island states, loss of maritime zones and territory, and loss of statehood. Many other issues are identified, but not explored fully, such as the issue of persons displaced by climate change. Some issues explored, such as the effect of peremptory norms of jus cogens, might have been covered a bit more thoroughly.

Finally, the coverage of efforts to address climate change under the UN Framework Convention on Climate Change is a bit cryptic, and is a bit dated due to publication prior to the completion of the Paris Agreement in December, 2015. An interesting question in this regard is whether the Paris Agreement offers more hope of avoiding these situations than expected when this book was written, particularly in light of the long term goal to keep global average temperatures to well below 2 degrees above background levels, while making efforts to keep the below 1.5 degree.

The book is essential reading for scholars, negotiators, policy makers, graduate students and others interested in preparing international law for the consequences of climate change. It should serve as a model for what needs to be done in other areas of international law. We have a set of rules and institutions that were developed on the assumption of a stable climate. The assumption is wrong. To ensure an orderly and peaceful transition to the new reality, we need this kind of careful analysis in all areas of international law, and we need to act on the results.

Meinhard Doelle,

Professor, Schulich School of Law

To download some of my publications on the UN climate regime, see http://ssrn.com/author=715387.