Ira Feldman on Climate Adaptation

Edited and annotated transcript from ABA-SEER ³quick teleconference´ The Copenhagen (De)brief: What US Lawyers Need to Know January 12, 2010
Ira Feldman has 25 years experience as an attorney and management consultant focusing on environmental regulatory innovation, strategic environmental management, sustainable business practices and corporate social responsibility. Ira has cut an interdisciplinary swath across three usually distinct spheres: "big picture" environmental policy; environmental law and regulation; and environmental management. In the climate change arena, Ira is at the leading edge of the convergence of sustainability, climate adaptation and ecosystem services. He participates in such relevant initiatives as the UNFCCC¶s Nairobi Work Programme on adaptation and collaborates with WRI on ecosystem services. Ira attended at the COP-15 in Copenhagen and is a contributing author to the IPCC.

Few of the many post-Copenhagen debriefings and analyses have explored the developments concerning climate adaptation. This is a major oversight. Adaptation is a sleeping giant. Ultimately, the adaptation agenda will dwarf the mitigation issues. It is only a matter of time and is largely dependent on how aggressively and successfully we pursue mitigation of greenhouse gas emissions. I will assume that few of you have had the opportunity to consider adaptation before now. Understandably so, since the mitigation of greenhouse gasses has dominated the climate change dialogue, especially in the US. In this brief presentation, I intend to cover some of the basic concepts and provide some context for adaptation; set the stage as we entered Copenhagen and review what was decided in Copenhagen; provide some informed speculation as to where we might go from here, especially from the US government perspective; and, finally, I will highlight certain adaptation activities already occurring in the US -- both linked and not linked to the events in Copenhagen. Some of us travelled to Copenhagen specifically to track the adaptation issues. We understood that this ³not ready for prime time´ topic was overdue for a breakthrough. Don Brown, our moderator today, was one of the "adaptation aficionados" present in Copenhagen. My conversations with Don, both in Copenhagen and since our return, as well as his excellent piece on ³ethics and adaptation´ for ClimateEthics.org, have informed this presentation.i I hope Don with chime in with his perspectives. Background Adaptation is not a new issue. In the words of one UNFCCC process insider, ³it has been a long hard climb.´ A senior US negotiator in Copenhagen told me ³the trajectory we need to appreciate is that we need to adapt, and then we will need to adapt more."

To put adaptation in proper context, let¶s briefly note three points: that adaptation is discussed in the basic Framework Convention (UNFCCC) text; a framework for financing adaptation activities was discussed at the Bali meeting in 2007; and, in the work stream of the Subsidiary Body for Scientific and Technical Advice (SBSTA), adaptation constitutes the focus of the Nairobi Work Programme. In the Framework Convention text there are at least ten provisions that refer to adaptation. Most notably, Articles 4.1 and 4.4 relate to cooperation in preparing for adaptation to impacts of climate change and assistance to the most vulnerable in meeting the costs of adaptation. Further, Articles 4.8 and 4.9 urge consideration of actions to meet the needs of developing countries, relating to funding, insurance and transfer of technology, and transfer funds, as well as the special circumstances of both small island nations and those economies highly dependent on fossil fuels.ii At the Bali meeting in 2007, the Bali Roadmap provided for the launch of the Adaptation Fund, which was established to finance concrete adaptation projects and programs in developing country Parties to the Kyoto Protocol that are particularly vulnerable to the adverse effects of climate change. The Adaptation Fund is financed from a share of the proceeds on Clean Development Mechanism project activities amounting to 2% of the certified emission reductions (CERs) issued for a CDM project activity.iii In the Nairobi Work Programme under SBSTA, the goals are i) to improve understanding and assessment of impacts, vulnerability and adaptation to climate change, and ii) to make decisions on practical adaptation actions and measures within a scientific, technical and socioeconomic framework. The Nairobi Work Programme is not limited to Parties; it is a ³big tent´ initiative that brings together NGOs, intergovernmental organizations, the private sector, and other stakeholders.iv There many definitions of adaptation, but for our purposes let's use the Intergovernmental Panel on Climate Change (IPCC) version, which defines climate change adaptation as ³an adjustment in ecological, social, or economic systems in response to actual or expected climatic stimuli and their effects or impacts.´v Copenhagen outcomes Entering Copenhagen, the draft text on adaptation was heavily bracketed with the inclusion of numerous alternative suggestions from developing countries reflecting much fundamental disagreement.vi Most of the relevant activity at COP-15 occurred in a drafting group reporting to the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA). Some progress was made with regard to an adaptation framework or program, objectives and principles, and categories of action, but differences remained on, among other things, response measures, a loss and damage mechanism, assessment of adaptation actions, and support for adaptation.vii So where did the adaptation thread conclude in Copenhagen? One answer is to ³follow the money.´ Specifically, according to the Accord, the intention is to provide $30 billion of ³quick start´ funding in the period 2010 ± 2012 for activities relating to adaptation, forestry, and technology transfer; the long-term finance of a further $100 billion per year by 2020 will be mobilized from a variety of sources.viii

The message of the Copenhagen Accord as it relates to adaptation -- to roughly paraphrase -- is that adaptation and the potential impact of response measures is a challenge faced by all countries; that enhanced action and international cooperation and adaptation urgently required in developing countries; and, the developed countries shall provide adequate, predictable, and sustainable financial resources, technology, and capacity building to support adaptation actions.ix A US Government Perspective In advance of this teleconference, Ko Barrett of the National Oceanographic and Atmospheric Administration (NOAA) -- the lead US negotiator on climate adaptation in the UNFCCC process ± kindly agreed to meet with me in order to convey her thoughts to this audience. Ms. Barrett¶s comments provide an authoritative assessment of the adaptation state of play post- Copenhagen. First -- and this is something not mentioned by our prior speakers -- we don't yet know if we have ³a deal.´ The Accord requires parties to make commitments by the end of this month. It remains to be seen whether a critical mass will come together. Second, the US position is that adaptation affects us all, not just the lesser developed countries. The US government views the grouping together of such countries as Tuvalu or the Maldives and Saudi Arabia as untenable. While the Saudi¶s face the loss of oil revenue, Tuvalu and the Maldives face submersion. Third and finally, Ms. Barrett reminds us that the UNFCCC ³facilitates´ international agreement -- it doesn't ³do adaptation.´ The US government vision of adaptation, as articulated by Ms. Barrett, has all parties learning and working together. One possible path forward for adaptation within the UNFCCC process, according to Ms. Barrett, is that we make might need an enhanced Nairobi Work Program ± ³a Nairobi Work Programme on steroids.´ In some ways, it is unfortunate that the adaptation discussion has been housed in SBSTA rather than in the Subsidiary Body on Implementation (SBI) where it might have received greater mainstream attention. It is also possible that the private sector initiative within the Nairobi Work Programme might become a viable conduit for an infusion of corporate and other funding sources for adaptation. Communities of practice There were really three separate spheres of activities in Copenhagen ± the negotiations themselves; the numerous official and unofficial substantive side events; and the protests well documented by the media. The significance of the side events should not be ignored. Not only for adaptation, but also for other specific topics and sub-topics, Copenhagen provided an opportunity for various specialized ³communities of practice´ to gather and exchange information.x There were many side events relating to adaptation issues -- there was progress on best practices

and, in particular, on emerging themes such as ecosystems-based adaptation, and the intersection of adaptation planning with the development agenda. On the former, it appears that UNEP is about to make a major commitment to add a climate adaptation initiative; on the latter, it will be interesting to see whether the adaptation agenda will be subsumed by the traditional players and existing institutions in the development arena.xi Adaptation initiatives in the US There are significant adaptation-related activities ongoing in the US. It is important to point out, because it has been largely ignored, that the pending US legislation includes adaptation provisions in both the House and Senate bills. For example, in the Waxman-Markey or ³ACES´ bill in the House, Part Two of Subtitle E, entitled ³International climate change program funding for adaptation´ is linked to allowances under the Clean Air Act.xii It remains to be seen what adaptation provisions survive the conference committee. Indeed, adaptation provisions could be stripped out in favor of a fast-track climate bill with only ³cap and trade´ provisions. It is also worth noting the establishment last year of an interagency working group on climate adaptation. Housed in CEQ, this working group was authorized by a recent Executive Order of the Obama administration.xiii This is a clear indication that the adaptation issue is recognized as a serious issue; there is a commitment by the Administration to have federal agencies and departments lead by example. To date, the most robust activities relating to climate change adaptation in the US have occurred at the state and local level. Many states have created climate change commissions to develop climate action plans, and several of those initiatives have included adaptation-specific working groups.xiv At the local and county level there have been numerous impressive initial adaptation planning activities, most notably in King County, Washington (resulting in an ICLEI guidebookxv), and also in New York City with the forthcoming release of an adaptation report for Mayor Bloomberg's sustainability initiative, ³PlaNYC 2030.´xvi To summarize: Adaptation costs will far outstrip those for mitigation. How successful we are with mitigation will in turn determine the necessary level of adaptation. It is also clear that mitigation is going to be too late for some and no amount of money for adaptation will be sufficient to correct the harm done. In the US, we track with interest the pending federal legislation, the work of state commissions, and the implementation of local action plans. There is an emerging understanding ± and a US negotiating position -- that adaptation affects us all, not just developing countries. Despite the recession, we are still part of a globalized economy and adaptation must be addressed at home and abroad.

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Notes: Don Brown, Two Climate Change Matters Move to Center Stage in Copenhagen with Profound Implications for Developed Nations: Ethics and Adaptation, available at http://climateethics.org/?p=331. ii UNFCCC website, Adaptation, available at http://unfccc.int/adaptation/adverse_effects_and_response_measures_art 48/items/2535.php. iii Adaptation Fund, see, http://unfccc.int/cooperation_and_support/financial_mechanism/adaptation_fund/ items/3659.php. iv Nairobi Work Programme, see, http://unfccc.int/adaptation/nairobi_work_programme/items/3633.php. v IPCC, Climate Change 2007: Impacts, Adaptation and Vulnerability (2007), available at http://www.ipcc-wg2.org/. vi AWG-LCA Negotiating Text, FCCC/AWGLCA/2009/INF.1 (22 June 2009), available at http://unfccc.int/resource/docs/2009/awglca6/eng/inf01.pdf. vii Earth Negotiations Bulletin, Summary of the Copenhagen Climate Change Conference, (December 22, 2009), at 17, available at http://www.iisd.ca/climate/cop15/. viii Id., at 29. ix Copenhagen Accord, available at <unfccc.int/resource/docs/2009/cop15/eng/l07.pdf>. x COP-15 listing of official side events, available at http://regserver.unfccc.int/seors/reports/events_list.html?session_id=COP15. xi Comments of Achim Steiner at Advancing Work on Adaptation to Climate Change: A United Nations System Perspective, (December 14, 2009), available at <http://cop15.metafusion.com/kongresse/cop15/templ/play.php?id_kongresssessi on=2542&theme=unfccc>. xii See, Section 493 in the Waxman-Markey bill (H.R. 2454 or ACES ), available at http://energycommerce.house.gov/Press_111/20090515/hr2454.pdf. xiii See Section 16, Executive Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance, (October 5, 2009), available at http://www.whitehouse.gov/assets/documents/2009fedleader_eo_rel.pdf. xiv For state-specific activities, see, Center for Climate Strategies website, available at http://www.climatestrategies.us/. xv ICLEI, Preparing for Climate Change, available at http://www.iclei.org/fileadmin/user_upload/documents/Global/Progams/CCP/Ad aptation/ICLEI-Guidebook-Adaptation.pdf.
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PlaNYC 2030, Climate Change Adaptation in New York City: Building a Risk Management Response, available at http://www.wiley.com/WileyCDA/WileyTitle/productCd-1573318000.html.