Climate Change Laws
Case Study: Kenya • Region: Sub – Saharan Africa • Income Group (World Bank): Lower middle income • Annual Loss from Natural Disasters ( average percent of GDP): 23.6% • GHG Emissions (M tCO2e, including LULUCF), 2013 : 28.96% • Rank as Emitter: Below top 50 • Main Groups: G77.
3.1.1 Detailed Country Profiles; Legislative Portfolio
Climate Change Act, 2016 (2016 / Mitigation and Adaptation Framework)
This Act provides a framework for promoting climate resilient law carbon economic development. It aims to (Art 3-2): “ mainstream climate change responses into development planning, decision making and implementation; build resilience and enhance adaptive capacity to the impacts of climate change
Energy Act 2006, Parts of which is Executed by the Energy Management Regulations 2012 (2007). Encompassing several laws related to energy, the Act has a very broad scope, covering all forms of energy, from fossil fuel to renewables. The Act mandates the government to promote the development and use of renewable energy, including biodiesel, bioethanol, biomass, solar, wind, hydro-power, biogas, charcoal, fuel-wood, tidal, wave, municipal waste, among others.
3.1.2 Detailed Country Profile: Executive Portfolio
National Environment Policy 2013 (2013)
The policy aims to provide a framework for an integrated approach to sustainable management of Kenya’s environment and natural resources. In particular, it proposed to strengthen:
a) Legal and Institutional framework for good governance b) Integrate environmental management with economic growth, poverty reduction and improving livelihoods c) Research and capacity development.
3.1.3 National Climate Change Response Strategy 2010
The National Climate Change Response Strategy outlines its objectives as to:
I. Enhance the understanding of the global climate change regime, negotiation process and develop priorities for Kenya. II. Access the evidence and impacts of climate change in Kenya III. Recommend adaptation and mitigation measures IV. Develop assessment and capacity building framework.
3.1.4 National Policy for Disaster Management (2009 Adaptation Framework
The policy recognises that climate change contributes significantly to Kenya’s increasing vulnerability to disasters in the last two decades and affects seriously the lives and livelihoods of communities. The policy therefore aims to institutionalise mechanisms to address disasters and associated vulnerabilities.
3.2 Detailed Law / Policy Profile: English Summaries for 850+ Laws
3.2.1 Climate Change Act 2016 (Legislative, Mitigation, and Adaptation Framework, 2016)
1. Mainstream climate change responses into development planning, decision making and implementation. 2. Build resilience and enhance adaptive capacity to the impacts of climate change . 3. Formulate programmes and plans to enhance the resilience adaptive capacity of human and ecological systems to the impacts of climate change. 4. Mainstream an reinforce climate change disaster risk reduction in strategies and actions of public and private entities. 5. Mainstream intergenerational and gender equity of climate change responses 6. Provide incentives and obligations for private sector contributions to achieving low carbon climate resilient development. 7. Promote low carbon technologies to improve efficiency and reduce emissions intensity by facilitating approach an uptake of technologies that support low carbon and climate resilient development. 8. Facilitate capacity development for public participation in climate change responses through awareness creation, constitution, representation and access to information. 9. Mobilise and transparently manage public and other financial resources for climate change responses 10. Provide mechanisms for, and facilitate climate change research and development, training and capacity building 11. Mainstream the principle of sustainable development into the planning for, and decision making on climate change responses 12. Integrate climate change into the exercise of power and functions of all levels of governance, and to enhance cooperative climate change governance between government and county government.
3.2.2 Detailed Country Profile: Approach to Climate (for 99 Countries only)
Kenya ratified the Kyoto Protocol in 2005, and supports the UNFCCC process as a Non- Annex 1 country. It submitted its first national communication in 2002. Given that it is a natural resource dependent economy is highly vulnerable to rising temperatures, changing rainfall patterns and other extreme weather conditions such as droughts and flooding, developmental policies and priorities are mindful of the need to mainstream climate change concerns with national development priorities; the constitution has a legal commitment to attain ecologically sustainable development which forms the basis for its climate change policy framework. Kenya has expended significant efforts to forge a comprehensive framework to address climate issues responding to the
development of the international climate change regime since the 1990s. The climate change legal/ policy is evolving towards an integrated framework.
In 2010, the Ministry for Environment and Mineral Resources launched the National Climate Change Response Strategy (NCCRS), complemented by the 2013-2017 Climate Change Action Plan. The strategy’s primary focus is to ensure that adaptation and mitigation measures are integrated in all government’s planning, budgeting and development objectives. The strategy identifies and recommends specific measures that include suggestions in carbon markets, green energy development, research and development, and institutional framework for climate governance. The 2013-2017 Action Plan provides, develops implementation framework for the NCCRS.
The strategy recognises that Kenya stands to benefit from carbon markets (CDM and VCM) by increasing access to international carbon markets through mitigation measures ( promotion of energy efficiency and renewable technologies) and building capacity at institutional and community level. The NCCRS proposes:
i. Calculation of the baseline GHG Grid Emission Factor (GEF) for the electricity grid to facilitate CDM projects in the power sector and assist carbon project developers and consultants. ii. Target capacity building for the private sector and investors to increase awareness of GHG reduction project developments and markets, e.g., developing a detailed handbook on the opportunities, role of actors and appropriate process iii. A manual to guide CDM implementation iv. Strengthening relevant institutions and removing barriers to carbon training such as high initial transaction costs and low level of awareness of CDM potential in the part of private sector, particularly investment and financial organisations v. Providing tax incentives and favourable import tariffs on technology that reduce emissions. vi. Clear energy pricing and CDM project policies including a general institutional framework and good governance. Ensuring that Kenya establishes itself as cost-effective host to GHG emission reduction projects.
3.3 Individual Case Profile
3.3.1 Urgenda Foundation v. Kingdom of the Netherlands ( District Court of the Hague, 2015)
A Dutch environmental group, Urgenda Foundation, and 900 citizens sued the Dutch government to require it to do more to prevent a climate change. The court in the Hague ordered the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020, finding the government’s existing pledge to reduce emissions by 17% insufficient to meet the state’s fair contribution toward the UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial conditions. The court concluded that the state has a duty to rake climate change mitigation measures due to the severity of the consequences of climate change and the great risk of climate change occurring. “In reaching this conclusion, the court cited (without directly applying) Article 21 of the Dutch Constitution; EU emissions reduction targets; principles under the European Convention on Human Rights, the “no harm” principle of international law; the doctrine of hazardous negligence; the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change; and the principle of as high protection level, the precautionary principle and the prevention principle embodied in the European Climate Policy. The court did not specify how the government should meet the reduction mandate, but offered several suggestions, including emissions trading or tax measures. This is the first decision by any court in the world ordering state’s to limit greenhouse gas emissions for reasons other than statutory mandates.
Core: Seeking declaratory judgement and injunction to compel the Dutch government to reduce GHG emissions
Category: Suits against Governments: Human Rights ( GHG Emissions Reduction and Trading: Other Side A: Urgenda Foundation (Ngo)
Side B : Kingdom of the Netherlands (Government)
Decision (s): Decided (District Court of the Hague)
3.4 Paris Agreement
The Paris Agreement is a landmark environmental Accord that was adopted by nearly every nation in 2015 to address climate change and its negative impacts. The deal aims to substantially reduce global greenhouse gas emissions in an effort to limit the global temperature increase in this century to 2 degrees Celsius above pre-industrial levels while pursuing means to limit the increase to 1.5 degrees. The agreement includes commitments from major emitting countries to cut their climate altering pollution and to strengthen those commitments over time. The pact provides a pathway for developed nations to assist developing nations in their climate mitigation efforts, and it creates a framework for the transparent monitoring, reporting, and ratcheting up of countries’ individual and collective climate goals.
3.4.1 History of Paris Agreement
Hammered out over two weeks in Paris during the United Nations Framework Convention on Climate Change’s (UNFCCC) 21st Conferences of Parties (COP 21) and adopted on December 12, 2015, the Paris Agreement marked an historic turning point for global climate action, as world leaders representing 195 nations came to a consensus on an accord that has commitments from all countries’ aimed at combating climate change and adapting to it’s impacts.
President Obama was able to formally enter the United States into the agreement under international law through executive action, since it imposed no new legal obligations on the country. The United States has a number of tools already passed by congress, to cut carbon pollution. The country formally joined the agreement in September, 2016 after submitting it’s proposal for participation. The Paris Agreement could not take effect until art least 55 nations representing at least 55 percent of global emissions had formally joined. This happened on October 5, 2016, and the agreement went into force 30 days later on November 4, 2016.
3.4.2 How Many Countries Are in the Paris Agreement?
At present, 197 countries – every nation on Earth with the last signatory being war-torn Syria – have adopted the Paris Agreement. Of those, 179 have
solidified their climate proposals with formal approval – including the United states, for now. The only major emitting countries that have yet to formally joined the agreement are Russia, Turkey, and Iran.
3.4.3 Paris Agreement summary
The 32 – page document establishes a framework for global climate action 1, including the mitigation of and adaptation to climate change, support for develop nations, and the transparent reporting and strengthening of climate goals. Here’s what it aims to do
1. Limit Global Temperature Rise by Reducing Greenhouse Gas Emissions: In an effort to “significantly reduce the risks and impacts of climate change”, the accord calls for limiting the global average rise in this century to well below 2 degrees Celsius, while pursuing efforts to limit the temperature rise to 1.5 degrees. It also asks countries to work to achieve a levelling off of global greenhouse gas emissions as soon as possible and to become carbon neutral no later than the second half of this century. To achieve these objectives, 186 countries – responsible for more than 90 percent of global emissions – submitted carbon reduction targets, known as “intended nationally determined contributions”( INDC), prior to the Paris conference. These targets outlined each country’s commitments for curbing emissions(including through the preservation of carbon sinks) through 2025 or 2030, including both economy – wide carbon – cutting goals and the individual commitments of some 2,250 cities and 2,025 companies. INDCs turn into NDCs – nationally determined contributions – once a country formally joins the agreement. There are no specific requirements about how or how much countries should cut emissions, but there have been political expectations about the type and stringency of targets by various countries. As a result, national plans vary greatly in scope and ambition, largely reflecting each country’s capabilities its level of development, and its contribution to emissions over time. China, for example, committed to levelling off its carbon emissions no longer than 2030 and reducing carbon emissions per unit of gross domestic product (GDP) by 60 to 65 percent from 2005 levels by 2030. India set its sights on cutting emissions intensity by 33 to 35 percent below 2005 levels and generating 40 percent of its electricity from non-fossil-fuel sources by 2030. The United States – the world’s largest historical emitter and the second biggest carbon emitter after China – committed to cutting overall greenhouse gas emissions by 26 – 28 percent below 2005 levels by 2025. U.S. initiatives to achieve the target include the Clean Power Plan (a state- by-state program to cut carbon pollution from the power station) and the tightening of automotive fuel economy standards to reduce transport emissions. 2. Provide a Framework for Transparency Accountability on the Achievement of more Ambitious Targets: The Paris Agreement includes a series of mandatory measures for the monitoring, verification, and public reporting of progress toward a country’s emissions – reductions targets. The enhanced transparency rules apply common frameworks for all countries’ with accommodations and support provided for nations that currently lack the capacity to enable them to strengthen their systems over time. Among other requirements, countries must report their greenhouse gas inventories and progress relative to their targets, allowing outside experts to evaluate their success. Countries are also expected to revisit their pledges by 2020 and put forward new targets every five years, with the goal of further driving down emissions. They must participate in a “global stocktake” to measure collective efforts toward meeting the Paris Agreement’s long term goals as well. Meanwhile , developed countries also have to estimate how much financial assistance they will allocate to developing nations to help them reduce emissions and adapt to the impacts to the climate change. These transparency and accountability provisions are similar to those in the frameworks of other international agreements. While the system does not include financial penalties, the requirements are aimed at making the progress of individual nations easy to track and fostering a sense of peer pressure, discouraging any dragging of feet among countries that may consider doing so. 3. Mobilise Support for Climate Change Mitigation and Adaptation in Developing Nations.
Recognising that many developing countries and small island nations that have contributed the least to climate change could suffer the most room its consequences, the Paris Agreement includes a plan for developed countries – and other “ in a position to do so” – to continue to provide financial resources to help developing countries mitigate and increase resilience to climate change. The agreement builds on the financial commitment of the 2009 Copenhagen Accord, which aimed to scale up public and private climate finance for developing nations to $100 billion a year by 2020. (To put that into perspective, global military spending in 2017 alone was about $1.7 trillion, more than a third which came from the United States). The Copenhagen pact also created the Green Climate Fund to help mobilize transformational finance using targeted public dollars. The Paris Agreement established the expectation that the world would set a higher annual goal by 2025 to build on the $100 billion target for 2020 and would put mechanisms in place to achieve that scaling up. While developed nations are not legally bound to contribute a specific amount to the mitigation and adaptation efforts of developing countries, they are encouraged to provide financial support and are required to report on the financing they supply or mobilise.
3.4.4 Development since the Paris Agreement
➢ 14 new laws and 33 new executive policies related to climate change since Paris. ➢ 18 of the new laws and policies mainly focus on climate change and 4 specifically relate to NDCs. ➢ Almost all LDCs address climate change in their legislation or policy- captured for the first time. ➢ More work to be done in factoring climate change into the development plans (40% – 20 LDCs have already done so).
3.5 United Nations Framework Convention on Climate Change
In 1992, President George H.W Bush joined 107 other heads of state at the Rio Earth Summit in Brazil to adopt a series of environmental agreements, including the UNFCCC framework that remains in effect today. The international treaty aims to prevent dangerous human interference with Earth’s climate systems over a long term. The part sets no limits on greenhouse gas emissions for individual countries and contains no enforcement mechanisms, but instead establishes a framework for international negotiations of future agreements, or protocols to set binding emissions target. Participating countries meet annually at a Conference of the Parties (COP) to assess their progress and continue talks on how to best tackle climate change.
3.6 Kyoto Protocol
The Kyoto Protocol, a landmark environmental treaty that was adopted in 1997 at the COP 3 in Japan, represents the first time nations agreed to legally mandated, country – specific emissions reduction targets. The protocol which did not go into effect until 2005, set binding emissions reduction targets for developed countries only, on the premise that they were responsible for most of the Earth’s high levels of greenhouse gas emissions. The United States initially signed the agreement but never ratified it; President George W. Bush agreed that the deal would hurt the U.S. economy since developing nations such as China and India were not included. Without the participation of those three countries, the treaty’s effectiveness proved limited, with its target covering only small fraction of total global emissions.
The Kyoto Protocol’s initial commitment period extended through 2012. That year, at the COP 18 in Doha, Qatar, delegates agreed to extend the accord until 2020 (without some developed actions that had dropped out) They also reaffirmed their 2011 pledge from the COP 17 in Durban, South-Africa, to create a new comprehensive climate treaty by 2015 that would require all the emitter not included in the Kyoto Protocol – such as china, India and the United States – to reduce to their greenhouse gas emissions. The new treaty was to fully replace the Kyoto Protocol by 2020. However, the Paris accord went into effect earlier than expected, in November 2016.
3.7 Kyoto Protocol Versus the Paris Agreement
While the Kyoto Protocol and Paris Agreement both set out to address climate change, there are some key differences between them. Unlike the Kyoto Protocol which established legally binding emissions reduction targets (as well as penalties for noncompliance) for developed nations only, the Paris Agreement requires that all countries – rich, poor, developed, and developing – do their part and slash greenhouse gas emissions. To do that, greater flexibility is built into the Paris Agreement. No language is included on the commitments countries should make, nations can voluntarily set their emissions targets (NDCs), and countries incur no penalties for falling short of their proposed targets. What the Paris Agreement does require, however, is the mandatory reporting and reassessing of individual and collective country targets over time in an effort to move the world closer to the broader objectives of the deal. And the agreement sets forth a requirement for countries to announce their next round of targets every five years – unlike the Kyoto Protocol, which aimed for that objective but did not include a specific requirement to achievement.