The overall success of the Glasgow Climate Pact struck at COP26 Saturday will depend on whether countries follow through on their promises to cut greenhouse gas emissions to abate climate change, legal observers say.
Leading up to the pact, more than 150 countries submitted new voluntary carbon-cutting commitments under the 2015 Paris climate agreement and pledged to try to keep global warming from exceeding 1.5 degrees Celsius above pre-industrial levels.
The Glasgow pact asks countries to come back to the table in a year and strengthen those commitments even more, and pushes them to speed up the shift away from coal and end “inefficient” subsidies for fossil fuels.
If countries can deliver on their commitments to cut greenhouse gases, “Glasgow could be remembered as the moment the world began to really implement Paris and take decisive action on climate change,” said Margaret Peloso, a partner at Vinson & Elkins LLP focusing on climate change risk management and environmental litigation.
The deal alone won’t solve the climate crisis—only individual countries can do that if they choose, Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia University, said.
“The pledges made by countries don’t automatically translate into action. That requires new laws at the domestic level. The key decisions are made in the national capitals, not at the U.N. meetings,” he said.
Here are the top surprises and accomplishments attorneys identified coming out of COP26—the 26th Conference of the Parties of the U.N. Framework Convention on Climate Change:
U.S. Goes Big on Climate Policy
The White House rolled out a raft of domestic-related regulatory plans in conjunction with COP26, including a planned regulation aiming to cut the oil and gas industry’s methane pollution by 74% by 2030 and targeting existing wells for the first time.
The administration also signed a pact to halt deforestation, set a goal for net-zero aviation emissions by mid-century, and joined a pledge to cut global methane emissions by 30 percent below 2020 levels within nine years.
“The sheer number of new U.S. initiatives that were rolled out, from methane to offshore wind to sustainable aviation fuel, will have significant implications for U.S. companies across the economy, including those developing the technology solutions necessary to drive the energy transition,” said Ethan Shenkman, a partner at Arnold & Porter Kaye Scholer LLP and former EPA deputy general counsel in the Obama administration.
But the administration had hoped to gain more credibility at COP26 with a phase-out of coal as part of the Clean Electricity Performance Program, which was dropped from the reconciliation bill in Congress due to objections from Sen. Joe Manchin (D-W.Va.).
“I think that the Biden administration had hoped to come to the table with more deliverables around domestic law and policy,” Peloso said. “The interesting question now will be given what has happened in Glasgow, what will the Biden administration be able to do at home to fulfill the promises it has made on climate.”
The enormity of that challenge will be apparent on Nov. 17, when the administration will hold a court-ordered offshore oil and gas lease sale in the Gulf of Mexico, said Cale Jaffe, director of the Environmental and Regulatory Law Clinic at the University of Virginia.
The book-ending of the U.S. methane pledge and the lease sale on either end of COP26 “provides a perfect example of the challenge of converting the COP26 agreements into meaningful domestic law and policy,” Jaffe said.
A Murky Signal on Fossil Fuels
The Glasgow pact’s call for countries to accelerate clean energy development while phasing-down “unabated coal power and inefficient fossil fuel subsidies” is an important “signpost” for how the politics around energy are shifting, Peloso said.
The language used in the pact reflects the reality that fossil fuels aren’t going anywhere anytime soon, she said.
Now, the question is what regulations and incentives can they implement to encourage countries to move away from coal, and which subsidies might be considered “inefficient,” Peloso said.
The Glasgow pact also points the way for the developing world to invest in alternative fuels. If foreign lending focuses on renewables instead of fossil fuels, developing countries could increase their quality of life as their energy sectors grow, she said.
Some aspects of COP26 and the Glasgow pact will have more immediate legal and political implications in the U.S. and abroad.
Courts in the Netherlands, Germany, France, and other countries have used provisions in the Paris climate agreement to order governments to address climate change.
Glasgow “will provide further ammunition” for international litigation Gerrard said. “But we don’t see rulings like this in the U.S. courts, in the shadow of a very conservative Supreme Court.”
Biden’s commitment in Glasgow to slash methane emissions shows the U.S. reasserting itself on global climate policy, and it’s notable for focusing on energy and agriculture, Peloso said.
One of the most unexpected developments at COP26 was the U.S. and China agreeing to address climate change this decade, Shenkman said.
“For the first time, for example, China committed to develop a plan to reduce methane emissions,” he said. “The COP26 conference’s strong focus on reducing methane emissions is particularly significant for U.S. companies at the cutting edge of developing and deploying technology solutions in that space.”
The next U.N. climate summit is scheduled for December 2022 in Egypt.