Compendium Of Legal Best Practices on Climate Change Policy

May 31st, 2012 | By | Category: Development and Climate Change, Green House Gas Emissions, Information and Communication, News, Publication, REDD+, UNFCCC

IDLO: Climate change is an immense environmental and socio-economic challenge. The Intergovernmental Panel on Climate Change (IPCC) has made it clear that climate change will impact geophysical and biological as well as social systems, including food supply, health, water resources, infrastructure and the foundations of our economic system. Although the effects of climate change vary in each region, economies in transition and developing countries will experience the impacts most severely because they lack capacity to adapt and because their economies depend more directly on climate-sensitive sectors.1 Since 1992, Parties to the United Nations Framework Convention on Climate Change (UNFCCC), which boasts near universal membership, have sought to avert the “dangerous consequences” of climate change through evolving mechanisms for mitigation and adaptation with commitments to limit or reduce greenhouse gases, capacity-building for countries in need, technology transfer and finance.2

Despite the difficulties in reaching consensus on a comprehensive global regime for climate change, the UNFCCC has successfully established numerous frameworks, protocols and work plans that are currently in effect, and that have generated significant other activities beyond its direct oversight. These include well-known mechanisms as in the Kyoto Protocol‟s Clean Development Mechanism (CDM), regional emissions trading such as the European Union Emissions Trading Scheme, and Reducing Emissions from Deforestation and Forest Degradation (REDD+) as well as lesser-known green economy instruments at the domestic level as in power purchasing agreements, public procurement tools and disaster risk reduction. Importantly, the UNFCCC has scaled-up its commitments in recent years with pledges of USD 100 billion annually by 2020, while also acknowledging the role of sound legal and institutional frameworks to access that finance and implement climate change policy at the domestic level. Therefore, the 2010 Cancun Agreements strongly emphasize the necessity of regional, national and subnational strategies in all aspects of climate change policy, using a country-driven approach that is bolstered by international objectives and support.3

The purpose of this Compendium of Legal Best Practices on Climate Change Policy is to highlight the challenges that domestic governments face in implementing their international commitments to climate change policy and the means through which those challenges can be overcome. It gathers 12 recent best practices in legal and institutional reform that exemplify promising methods of addressing mitigation, adaptation and finance at the domestic level. Several of these best practices involve reform to facilitate engagement with mechanisms under the UNFCCC multilateral regime. Others represent countries‟ independent and voluntary measures that go well beyond their international commitments. In both cases, they are informative of the many opportunities for legal and institutional preparedness for climate change that can be reproduced or adapted elsewhere.

LEGAL AND INSTITUTIONAL BARRIERS TO CLIMATE POLICY

International action on climate change is a relatively new phenomenon. Legal systems designed prior to the establishment of the multilateral regime for climate change may not have conceived of laws and institutions necessary, for instance, to the Clean Development Mechanism rules. At the same time, countries have ongoing socio-economic development strategies that must now account for uncertain environmental conditions. Furthermore, some governments may already struggle with issues of good governance and the rule of law, and are in the course of clarifying or formalizing institutional capacity, land tenure, infrastructure codes, human rights and security, among others. Therefore, while each country is context specific, there are common systemic legal and institutional gaps and challenges in responding to climate change at the domestic level.4

Legal and Institutional Reform for Mitigation

Mitigation of climate change requires robust legal and institutional frameworks to ensure that countries meet the exigencies of specific UNFCCC mechanisms and foster the investor confidence that is necessary to access international finance. A range of legal tools that directly address mitigation can be implemented at multiple levels, for instance, in overarching national strategies, sectoral programming or local by-laws. While mitigation laws may stand-alone in response to specific international climate change commitments or project proposals, in most cases, they must also be mainstreamed into existing legal frameworks and ongoing development strategies. This may involve the amendment or, where necessary, the establishment of guidelines that integrate climate considerations across multiple sectors and agencies in a coordinated manner that eliminates jurisdictional conflict and duplication of efforts.

The best practices for mitigation presented in this Compendium include legal and institutional reforms undertaken at various levels of government that are in different stages of planning and implementation. Mexico‟s subnational governments have been active in coming to agreement on regional and municipal action plans and legislation that specifically address mitigation opportunities available at the local level, such as the newly emerging market mechanism, REDD+, which is anticipated to provide finance for sustainable forest management. Many African countries such as Kenya and South Africa have already created broad National Climate Change Response Strategies that are now at the stage of further elaboration with a view to implementation through detailed Action Plans. Norway is an example of a developed country that has been at the forefront of climate change policy since the founding the UNFCCC. However, like many other developed countries, it still struggles to limit or reduce its greenhouse gases to meet its Kyoto Protocol targets, and has adopted domestic carbon taxes and emissions trading in response. Furthermore, India is an economy in transition with rising energy needs for a growing population and higher standards of living. It has, however, been one of the leaders among developed and developing countries alike in establishing incentives for renewable and efficient energy, for instance in power purchasing agreements with solar panel developers.

Conclusion

There are a multitude of opportunities for climate change mitigation and adaptation, including through finance for sustainable development and green growth. Developed country Parties to the UNFCCC recently pledged substantial finance in the amount of USD 100 billion per year by 2020 to assist developing countries to plan and implement a variety of actions. In order to access that finance, the 2010 Cancun Agreements encourage the Parties to adopt a country-driven approach that is supported by the multilateral regime but is also based on domestic possibilities and capabilities. However, while the possibilities are many, including the Clean Development Mechanism, REDD+ and the Adaptation Fund, domestic capabilities are currently lacking due to gaps and barriers in the legal and institutional frameworks that are prerequisites to effective climate policy.

This Compendium of Legal Best Practices for Climate Change Policy brings together 12 examples of legal and institutional reforms undertaken by developed and developing countries in the attempt to overcome the challenges posed by climate change. For instance, countries such as Brazil and South Africa have committed to increase Clean Development Mechanism projects by creating tax incentives that make their countries more attractive to investors. Vietnam has attempted to ensure that the benefits of REDD+ are distributed in an equitable manner amongst those persons who manage forests, including indigenous and forest communities. India has implemented a far-reaching strategy for renewable energy to meet the growing needs of its population in a sustainable manner. Governments in Mexico have come to agreement on climate laws that address climate change taking into account subnational priorities. Moreover, the Caribbean Community has established a risk sharing facility that provides compensation for extreme weather events in an amount that far exceeds the capabilities of any Member State.

Therefore, while the legal best practices presented here are all a work in progress, they are, nevertheless, exemplary of the types of reforms that can be replicated, adapted and improved according to the circumstances. Above all, they demonstrate that domestic governments can be proactive in creating an enabling framework to access the opportunities created by the international regime for climate change policy as well as take on voluntary commitments that are cost effective and successful.

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