Paris—In the run-up to the Conference of the Parties to the Climate Change Convention, a short humorous video, “Earth to Paris,” was widely viewed.  It was a call to delegates for take serious action on climate change at the conference.

The Paris Agreement is being hailed as an historic breakthrough by political leaders, nongovernmental organizations, and the business community. It represents the first time since the Framework Convention on Climate Change was opened for signature in 1992 that all 196 parties have agreed to take  actions to reduce their greenhouse gas emissions.  The only prior agreement even remotely comparable to the Paris Agreement—the Kyoto Protocol—limited only developed country emissions.

Not only was there unanimous approval of this agreement—a remarkable feat in itself—but its overall goal is ambitious. Countries agreed to hold “the increase in the global average temperature to well below 2 °C above pre-industrial levels.”  They also agreed to “to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.”  The parties thus increased somewhat the level of ambition from limiting warming to 2 °C, which had been the consensus objective.

They also agreed to “aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter.” That, too, is new.

And unlike Kyoto, this agreement puts primary responsibility for what happens in particular countries where it has always been—with the countries themselves. This is through the mechanism of nationally determined contributions (NDCs)—public commitments that nearly all countries made prior to Paris to reduce their greenhouse gas emissions to some extent.  The Paris agreement affirmed those agreements and made them central to the global climate change effort.

But what also sets the Paris Agreement apart—and will ultimately determine whether humanity averts or limits the worst effects of climate change—are processes that the agreement puts in place to periodically increase national ambition, assist countries in meeting their objectives, share information, and ensure methodological consistency in accounting for emissions reductions. These processes should greatly enhance the likelihood that the Paris Agreement will actually work.

Processes in the Paris Agreement that embody this approach include the following:

  • Beginning in 2020, and every five years afterwards, each country is to “communicate and maintain successive nationally determined contributions that it intends to achieve.” These, of course, are in addition to those that countries already submitted. Each “successive nationally determined contribution” is to “represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition.”
  • While financial assistance to developing countries has always been part of the international framework to address climate change, developed countries agreed to increase their level of financial support from previous levels by a nonspecific amount. Developed countries also agreed to communicate “indicative quantitative and qualitative information” about their financial support to developing countries, including projected future levels of public finance.
  • Beginning in 2023, and every five years afterwards, the conference of the parties is to “take stock of the implementation of this Agreement to assess the collective progress towards achieving” its purpose. The outcome of this “global stocktake” is to “inform Parties in updating and enhancing, in a nationally determined manner,” including enhanced “international cooperation for climate action.”
  • The agreement creates “an enhanced transparency framework for action and support.” This framework is partly to understand what NDCs actually mean and achieve. NDCs from different countries use different assumptions and baselines, and enhancing their comparability is essential. This transparency framework is also to better understand what financial contributions developed countries are actually making to developing countries.
  • Recognizing that “[a]ccelerating, encouraging and enabling innovation is critical for an effective, long-term global response to climate change and promoting economic growth and sustainable development,” the agreement creates a Technology Mechanism. The purpose of the mechanism is to strengthen existing efforts to foster technology development and the transfer of technology to developing countries. The “global stocktake” is to consider this and other efforts to support “technology development and transfer for developing country Parties.”

These processes are different from the kind of obligations we are used to in environmental law–obligations, for example, to reduce greenhouse gas emissions by a certain amount by a certain date.  Rather, these processes may be understood in terms of reflexive law and governance. Reflexive approaches are not substantive rules: they improve the capacity of governmental institutions and other entities to learn about themselves and their actions.  Reflexive approaches also stimulate them to use this information to make appropriate changes.  They create spurs to action.

In the context of the Paris agreement, reflexive governance seems intended to perform at least four key tasks. First, it should encourage or prod governments to be more ambitious over time, without being prescriptive about what they should do.  This is true not only of emissions reductions but also, for developed countries, of their efforts to provide financial and technological resources to developing countries.  Second, it will provide information to governments and others about what other governments are actually doing, as well information about the effectiveness and impacts of particular laws and policies.  This information can then be used to modify those laws and policies.   Third, because this information will be public, it means that governments are more likely to honestly and openly share what they are doing, and be responsive to the views of nongovernmental organizations and businesses as well as the public in general.

Finally, there are few areas in law and policy in which the playing field is changing faster than in climate change.   The changes are not just new agreements, but also the rapid upscaling of renewable energy as its price drops, the wide variety of international coalitions working to accelerate greenhouse gas emission reductions in particular areas or sectors, changes in the emissions profiles of China and India over the past decade, improvements in our understanding of the science, and the greater availability of private finance.  The Kyoto Protocol, hailed as an advance when approved in 1997, looks like a relic less than 20 years later.

These and other processes in the Paris Agreement are more likely to survive, accommodate, and address this shifting landscape in the years ahead.  One could wish for a stronger agreement, but these processes are likely to make the global partnership to address climate change stronger and more effective over time. And they are particularly likely to do so because every country agreed to the ambitious goals toward which they are aimed.

Climate Change and Sustainable Development: A Perspective from Britain

Cambridge, United Kingdom—Stars and a full moon covered the sky over this city on the night that the eye of Hurricane Sandy crossed over my house in Pennsylvania. And, at the end of BBC’s all-night coverage of the presidential election, Mitt Romney gave his concession speech just as the sky began to lighten. Such is what it means to spend part of my sabbatical at the University of Cambridge.

The U.S. election and Hurricane Sandy obscured other developments that are also important. I took my sabbatical here to see what Britain is doing on sustainable development and climate change. My most recent book on U.S. sustainability, Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability, was published in June.

The United Kingdom provides an important reference point for the United States because of our common language and history as well as the similarity of our legal systems and culture. Americans have stronger ties with few other countries than they have with Britain. While Britain is far from perfect, it is considerably ahead of the U.S. on sustainability and climate change.

Some snapshots:

• People here generally understand that climate change is an issue that needs to be taken seriously. The media in this country noted New York City Mayor Michael Bloomberg’s endorsement of Barack Obama because of climate change, and Obama’s reference to global warming in his victory speech. But they were also critical of the near-total avoidance of this issue during the campaign by both candidates. Climate change denial is not as significant in Britain’s political landscape as it is in the United States.

• The United Kingdom adopted its basic climate change legislation in 2008, while George W. Bush was president. The law commits Britain to reducing its greenhouse gas emissions by 34% by 2020 and 80% by 2050 (from 1990 levels). The country is using five-year carbon budgets to meet these objectives. An independent body called the Committee on Climate Change is both advising the government and reporting on progress. There is no comparable law in the U.S., though Congress came close in 2009 and 2010.

• In 2008, the UK Government created the Department of Energy and Climate Change to ensure that climate change and energy issues are addressed together. A government department with climate change in its name also has considerable political significance. The U.S. simply has a Department of Energy, with real but limited ability to address climate change.

• The United Kingdom and other members of the European Union have set a target of meeting 15% of their energy demand from renewable sources by 2020. (Renewables provided only 3% of the UK’s energy in 2009.) The country is on track to meet that target, in no small part because it leads the world in offshore wind energy. In fact, major energy companies, investment firms, and a respected former Conservative party leader (Michael Heseltine) are all saying that a stronger policy framework must be put in place to support the investment necessary to meet the country’s carbon reduction goals. Renewable energy already provides a quarter million jobs, and this could double in the years ahead. The U.S. has no comparable national commitment, though many states are increasing their use of renewable energy.

• As part of the country’s commitment to address climate change, Parliament adopted legislation at the end of 2011 to foster energy efficiency and a low-carbon economy. Among other things, that legislation creates a “Green Deal” for financing energy efficiency improvements in residential and commercial properties without up-front payments. A small surcharge on electric bills provides funding, and costs are to be repaid from reduced energy bills. In the United States, this kind of activity is occurring in many, but not all, states.

• Britain’s greenhouse gas emissions are decreasing; U.S. emissions are increasing, though at a slower pace than previously. The UK’s greenhouse gas emissions declined 23 percent between 1990 and 2010. They are projected to decline a further 25% from 2010 levels by 2025, primarily because of growing use of renewable energy and other changes in electricity production. By contrast, U.S. greenhouse gas emissions increased 10.5% between 1990 and 2010. In the absence of further regulation, U.S. greenhouse gas emissions are projected to increase by only 2% between 2010 and 2035, according to the Energy Information Administration, ”due to a combination of modest economic growth, growing use of renewable technologies and fuels, efficiency improvements, slow growth in electricity demand, and increased use of natural gas, which is less carbon-intensive than other fossil fuels.” Significantly, U.S. per capita emissions are about double those of the UK.

• The House of Commons in Parliament has an Environmental Audit Committee that monitors the country’s commitments and actions on behalf of sustainability and climate change. It is made of members of members of the Labour, Conservative, Liberal Democrat, and Green parties. It issues periodic reports making recommendations on embedding sustainability in the operations of government, on the green economy, and on sustainable food. It is also reviewing the Government’s 2013 budget, “focusing on how the Government should be supporting a green economy in the context of its intention to secure economic growth.” There is nothing like this committee in the U.S. Congress.

• In 1994, the United Kingdom became the first country to produce a sustainable development strategy to make its environmental, economic, security, and social goals work together. Revised strategies were issued in 1999 and 2005, although the coalition government that took power in 2010 has yet to issue a strategy. There was also a Sustainable Development Commission, which operated for a decade as an inspired force on behalf of sustainability in government and, in its later years, as a government watchdog. In what was allegedly a budget cutting move, the coalition government ceased funding the Commission in 2011. The Government has not issued a new sustainable development strategy, though the Department for Environment, Food and Rural Affairs (this country’s analogue to the Environmental Protection Agency) issues reports on what the government is doing on behalf of sustainability. The U.S. has never had a national sustainable development strategy.

• A fungus that is likely to be devastating to Britain’s ash trees, evidently introduced from continental Europe and originally from Japan, was first discovered in this country in February 2012. Its effects are now being seen in many places. The fungus (Chalara fraxinea) spreads by wind, and there does not appear to be any cure or treatment. The fungus has the potential to wipe out Britain’s 80 million ash trees. The fungus is raising many questions about how effectively the country protects its borders from plant diseases. Sadly, ash trees in the United States are threatened by the emerald ash borer, an Asian insect accidentally introduced in the 1990s.

• Prime Minister David Cameron, whose Conservative party runs the Government in a coalition with the Liberal Democrat Party, promised in 2010 that his would be the “greenest government ever.” There is skepticism about this claim, backed by some evidence (see above for examples, although it is not clear that his Government can fairly be blamed for the ash fungus). Still, it is remarkable that he made that statement at all, and that he continues to make it.

So a country very much like ours is in many ways treating sustainable development and climate change as opportunities to create jobs, improve security, strengthen its economy, and protect the environment. Could the better parts of this story be replicated in the United States?

Law for Sustainability: A View from Rio de Janeiro

What role can law and lawyers play in the quest for sustainability?  That question has been discussed in a wide variety of side events here, including a Colloquium on Environmental Law and Justice at the Supreme Court of the State of Rio de Janeiro, a World Meeting of Environmental Lawyers at the Rio de Janeiro Botanical Garden, a conference on Legal Frameworks for Sustainable Development at Fundação Getulio Vargas (a teaching and research institution), and a World Congress on Justice, Governance, and Law for Environmental Sustainability at the Portobello Resort and the State Supreme Court of Rio de Janeiro.

A simple summary of what was said at these events is impossible, but two themes emerge.  First, environmental law matters a great deal.  It protects what would otherwise not be protected, prevents and punishes the worst behaviors, and sets a level playing field for business and industry.  Recent amendments to Brazil’s new forestry law, which provide amnesty to some who have unlawfully cut the country’s rainforests, were subject to a lot of criticism for weakening the country’s regulatory regime.

On the other hand, the Environmental Law Institute in Washington, D.C. has trained more than 1,000 judges in 20 countries on environmental and natural resources law, and many judges, including Justice Antonio Benjamin of Brazil’s Supreme Court, expressed support for expansion of ELI’s work.

Access to justice is also an important issue.  Environmental pollution and degradation hurt not only the environment but also other people.  And so the availability of lawyers who are willing to represent ordinary citizens was often emphasized.

For all its value, however, environmental law is a blunt instrument.  It does not—and probably cannot—require companies and other actors to do their best in furthering environmental, social, and economic goals at the same time.  So the second theme–creation of the “law of sustainability”–is both essential and challenging.  Examples from these side events:

  • Throughout Brazil, landowners (many with low incomes) are being paid for the environmental services that their land provides to others, including protection of biodiversity, carbon storage, scenic beauty, and watershed protection.  Of course, they must engage in specified conservation practices to be paid.
  • Norway and other countries are moving toward “green fiscal reform,” which involves taxation of environmental pollution, often in return for reductions in other taxes, including income taxation.
  • In trade law, the European Union is moving toward sustainability by subjecting bilateral trade agreements to sustainability impact assessment and also by facilitating liberalization of trade in green goods and services.
  • Intellectual property rules, particularly patent law, often discourage innovation for environmental sustainability, including renewable energy, by discouraging new entrants to the field.  To be successful at fostering sustainability, these rules need to be revised.
  • Mexico’s new climate change law, which requires the development of a national plan to reduce greenhouse gas emissions, is also intended to promote a green economy by, among other things, fostering innovation in renewable energy and energy efficiency.
  • In the United States, as I explained at two of these side events, much of the progress toward energy efficiency, renewable energy, organic food production and other sustainable development activities over the past two decades has come about because of laws that are intended to foster those forms of economic development.  (see
  • The list of innovative measures for sustainable development has become so extensive—and the demand for knowledge about these measures so great—that the International Development Law Organization has prepared a compendium of legal best practices for a green economy.

These are only examples of the emerging law of sustainability.  My friend and colleague, Ann Powers, who teaches at Pace Law School, has a nice explanation for how we can create more of these examples.  Law for sustainability, she said, requires “not only analytical skills but also creativity, imagination, and innovation.”  How can we do a better job of teaching, encouraging, and practicing these things?

The U.N. Conference on Sustainable Development—A Tale of Two Narratives

The U.N. Conference on Sustainable Development here in Rio de Janeiro is occurring on the 20th anniversary of the famous 1992 Earth Summit, also in Rio de Janeiro.  At the Earth Summit, heads of state did not just say that sustainable development is a good idea.  They also, and more importantly, pledged to make it happen in their own countries.  One of those heads of state was U.S. President George H.W. Bush.

Twenty years later, a great many heads of state (or, for the United States, Secretary of State Hillary Clinton), will gather to focus on two particular implementation issues—greening the economy to achieve sustainability and eradicate poverty, and creating institutions for sustainability.  But the conference is also intended to reinvigorate the amazing energy that existed at the Earth Summit 20 years ago, when I took a week off from my job at the Pennsylvania Department of Environmental Resources and attended as an observer.  While the formal conference runs from June 20-22, a variety of side events and meetings related to the conference have already been going on more than a week.

Two stories or narratives about the conference are developing—both quite different, and each containing a good bit of truth.

On one hand, a great many nongovernmental organizations, corporations, local, state, provincial, and national governments are sharing what they have achieved in the past two decades, and what they hope to achieve.  They have taken actions to move toward sustainability for a variety of reasons—to satisfy customers and investors, to improve quality of life, to save money, and to protect the future for their grandchildren.  They see that making their environmental, social, and economic goals work together (the essence of sustainability) provides more benefits than business as usual.

A new book about sustainability in the United States—Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability—recounts a great many such stories of sustainability in the United States—in local, state, and even national governance; at colleges and universities; and among corporations.  (I am the principal author of that book; see

Here I have heard similar stories from around the world.  The head of Quebec’s government spoke the other night about Plan Nord, a sustainable development plan for the northern two-thirds of the province that will protect from development an area the size of France and provide for sustainable development of the rest.  The plan protects the First Nations (or native) people of Quebec as well as an enormous part of the province’s boreal forest (which is an important area for storing carbon dioxide).  Kenya and Mexico have adopted laws to reduce greenhouse gas emissions and adapt to climate change.

On the other hand, there is considerable skepticism here about the formal outcome of the conference.  The official document—entitled “The Future We Want,” is better than many feared, but not as good as many had hoped.  The difficulty in finding common ground among all of the world’s diverse nations feeds a narrative that nothing much has happened here.  That is an easy narrative, of course, in a time when there is already considerable skepticism about government.

However one feels about the official outcome, the important work of sustainability will continue—by the private sector, individual governments, and nongovernmental organizations all over the world.

–John Dernbach, Distinguished Professor of Law, Co-Director, Environmental Law Center