Navroz K. Dubash

Developments in national climate change mitigation legislation and strategy

The results are presented from a survey of national legislation and strategies to mitigate climate change covering almost all United Nations member states between 2007 and 2012. This data set is distinguished from the existing literature in its breadth of coverage, its focus on national policies (rather than international pledges), and on the use of objective metrics rather than normative criteria. The focus of the data is limited to national climate legislation and strategies and does not cover subnational or sectoral measures. Climate legislation and strategies are important because they can: enhance incentives for climate mitigation; provide mechanisms for mainstreaming; and provide a focal point for actors. Three broad findings emerge. First, there has been a substantial increase in climate legislation and strategies between 2007 and 2012: 67% of global GHG emissions are now under national climate legislation or strategy compared to 45% in 2007. Second, there are substantial regional effects to the patterns, with most increases in non-Annex I countries, particularly in Asia and Latin America. Third, many more countries have adopted climate strategies than have adopted climate legislation between 2007 and 2012. The article concludes with recommendations for future research. Policy relevance The increase in climate legislation and strategy is significant. This spread suggests that, at the national level, there is some movement in reshaping climate governance despite the relatively slow pace of global negotiations, although the exact implications of this spread require further research on stringency of actions and their implementation. Asia and Latin America represent the biggest improvements, while OECD countries, which start from a high base, remain relatively stagnant. Implications of regional patterns are further refined by an analysis by emissions, which shows that some areas of low levels of legislation and strategy are also areas of relatively low emissions. A broad trend toward an emphasis on strategies rather than legislation, with the significant exception of China, calls for enhanced research into the practical impact of national non-binding climate strategies versus binding legislation on countries’ actual emissions over time.

The Rise of the Regulatory State of the South: Infrastructure and Development in Emerging Economies

The 1990s and 2000s have witnessed a spurt of energetic institution-building in the developing world, as regulatory agencies emerge to take over the role of the executive in key sectors. This rise of the regulatory state of the south is barely noticed both by scholars of regulation and of development, let alone adequately documented and theorized. Yet the consequences for the role of the state and modalities of governance in the south are substantial, as politically charged decisions are handed over to formally technocratic agencies, creating new arenas and forms of contestation over the gains and losses from development decisions. Moreover, this shift in the developing world comes at a time when the regulatory state in the north is under considerable stress from the global financial crisis. Understanding the regulatory state of the south, and particularly forms of accommodation to political pressures, could stimulate a broader conversation around the role of the regulatory state in both north and south. This volume seeks to provoke such a discussion by empirically exploring the emergence of regulatory agencies of a range of developing countries across Asia, Africa, and Latin America. The cases focus on telecommunications, electricity, and water: sectors that have often been at the frontlines of this transition. The central question for the volume is: Are there distinctive features of the regulatory state of the South, shaped by the political-economic context of the global south in the last two decades? To assist in exploring this question, the volume includes brief commentaries on the case studies from a range of disciplines: development economics, law and regulation, development sociology, and comparative politics. Collectively, the volume seeks to shape the contours of a productive inter-disciplinary conversation on the emergence of a significant empirical phenomenon - the rise of regulatory agencies in the developing world - with implications both for the study of regulation and the study of development. Contributors to this volume - Ahmed Badran, Research Fellow, Aston Centre for Critical Infrastructure and Services, Aston University Nai Rui Chng, Affiliate Research Fellow in Human Rights, University of Glasgow Megan Donaldson, Institute Fellow, New York University School of Law Michael Dowdle, Visiting Associate Professor with National University of Singapore Faculty of Law Kathryn Hochstetler, CIGI Chair of Governance in the Americas, Balsillie School of International Affairs, and Professor of Political Science, University of Waterloo Kanishka Jayasuriya, Professor of International Politics and Director of the Indo-Pacific Governance Research Centre (IPGRC), University of Adelaide Jacint Jordana, professor of Political Science and Public Administration, Universitat Pompeu Fabra Benedict Kingsbury, Murray and Ida Becker Professor of Law, New York University School of Law Piyush Joshi, Partner, Clarus Law Associates, New Delhi David Levi-Faur, Associate Professor of Political Science, Hebrew University of Jerusalem Roselyn Hsueh, Assistant Professor in the Department of Political Science at Temple University Maria Victoria Murillo, Associate Professor, Department of Political Science and the School of International and Public Affairs, Columbia University Alison Post, Assistant Professor, Department of Political Science, University of California, Berkeley Mariana Moto Prado, Assistant Professor, Faculty of Law, University of Toronto Lant Pritchett, Professor of the Practice of International Development, Kennedy School of Government, Harvard University Arun Thiruvengadam, Assistant Professor, Faculty of Law, National University of Singapore Rene Uruena, Assistant Professor and Director, International Law Program, Universidad de los Andes, Bogota

Who determines transformational change in development and climate finance

The language of transformational change is increasingly applied to climate policy, and particularly in climate finance. Transformational change in this context is used with respect to low-carbon development futures, with the emphasis on mitigation and GHG metrics. But, for many developing countries, climate policy is embedded in a larger context of sustainable development objectives, defined through a national process. Viewed thus, there is a potential tension between mitigation-focused transformation and nationally driven sustainable development. We explore this tension in the context of operationalizing the Green Climate Fund (GCF), which has to deal with the fundamental tension between country ownership and transformational change. In relation to climate finance, acceptance of diverse interpretations of transformation are essential conditions for avoiding risk of transformational change becoming a conditionality on development. We further draw lessons from climate governance and the development aid literature. The article examines how in the case of both the Clean Development Mechanism and Nationally Appropriate Mitigation Actions, there has been limited success in achieving both development objectives and ‘nationally appropriate’ mitigation. The development aid literature points to process-based approaches as a possible alternative, but there are limitations to this approach. Policy relevance The concept of transformational change has gained prominence in climate finance. The conundrum facing the GCF is that it seeks to support transformational change in the climate realm, in a context where countries may have competing priorities. Balancing or even transcending this tension is a fundamental design challenge for the GCF. A primary focus on mitigation, particularly if metrics of performance are tied exclusively to GHG reduction, raise concerns about diluting ownership by recipient countries and evokes concerns of conditionality or worse. The literature on development assistance has explored options notably conditions on process and adequate capacity, and suggests that there are no short cuts to building domestic ownership. Actors on climate change need to avoid the risk that transformational change is perceived as, and becomes, an imposed condition. The risk that transformation change, operationalized in the context of unequal power relations, becomes an imposition on development, needs to be avoided.

Toward Enabling and Inclusive Global Environmental Governance

Sustainable development has always been a compromise formulation that papered over real conflict between environment and development. Twenty years after Rio, the geopolitical climate is far less conducive to easy compromises. Given an embattled North and a rising South, particularly Asia, the language of zero sum conflict rather than positive sum cooperation is likely to prevail. Green growth offers one way to paper over these conflicts yet again, but it would be prudent to resist this temptation. There is incomplete buy-in to the green growth story, and some in the South are also concerned that this narrative will downgrade poverty alleviation and equity considerations from the sustainable development triad of environment, growth and distribution. In this context, Rio+20 can play a positive role by focusing on national and sub-national institutions and embracing a diversity of national political, institutional and legal contexts; seeking to impose uniformity is likely to chafe. Global efforts can play a supporting role by inducing normative change, stimulate national processes, and provide hooks for domestic policy actors. In addition, Rio+20 should ensure that inclusion of the weakest should remain firmly on the agenda. While the conversations may be difficult, Rio+20 will be most productive if it leads to engagement with fraught geopolitical issues than if, once again, these are papered over.

Understanding the Rise of the Regulatory State in the Global South

This is a working paper intended as the framing paper for a workshop on the rise of the regulatory state in the Global South. The paper, and the broader workshop, explore whether, and how, the rise of the regulatory state in the Global South, and its implications for processes of governance, are distinct from cases in the North. With the exception of a small but growing body of work on Latin America, most work on the regulatory state deals with the US or Europe, or takes a relatively undifferentiated ‘legal transplant’ approach to the developing world. Our focus is on regulatory agencies as a particular expression of the regulatory state, though we acknowledge that the two are by no means synonymous. We take seriously the historical legacy of the idea of a North/South divide while also integrating the considerable changes occurring topically in this purported divide (caused by increased economic integration between North and South and increased differentiation within the South). Three entry points into exploring the distinctive nature of the regulatory state in the Global South are discussed. First, is there a distinctive genesis of regulatory agencies in developing countries? Second, to what extent and how is the regulatory state of the South shaped by the interface between the domestic and the international? Third, how does the practice of regulation and the political opportunities afforded by state-society interactions in regulatory agencies shape regulatory outcomes on the ground, particularly in relation to the much higher (in comparison to industrialised countries) levels of unserved citizens and informal service providers? The paper draws briefly on a series of comparative case studies of infrastructure regulators (electricity, water, and telecoms) drawn from Africa, Asia and Latin America. These case studies have been written up but are still in draft form and will be further integrated into the next version of the paper, with the aim of drawing out common themes that characterize a “regulatory state of the South,” while remaining sensitive to the variations in level of economic development and political institutional contexts within ‘the South’.

Cascading biases against poorer countries

To the Editor — A recent article by Robiou du Pont et al.1 suggests that wealthier countries (for example, the members of the EU) have made more ‘equitable’ contributions to the Paris goals than poorer countries (such as India and China), with most other developing countries somewhere in between. These results are counter-intuitive, given that developed countries have the majority of the responsibility for the atmospheric build-up of GHGs2 and the majority of the financial wherewithal to help solve the climate problem3, yet their Paris pledges amount to fewer tons of mitigated emissions than developing countries4. The objective of Robiou du Pont and colleagues (to examine multiple equity approaches) is laudable, however, the methodology reflects a selection of approaches that are biased in favour of wealthier, higheremitting countries in three ways. First, the approaches1 selected to represent the IPCC equity categories are skewed by the prominence of ‘grandfathering’ as an allocation principle. Grandfathering, (or the constant emissions ratio1), privileges today’s high-emitting countries when allocating future emission entitlements. Despite acknowledging that grandfathering is criticized on equity grounds, it is chosen to represent one of their five categories because “it is implicitly followed by many of the developed countries”1. This rationale is no basis for including a political position in a survey of equity approaches, and by construction it generates outcomes that favour developed countries. Its consequences can be anticipated: for example, grandfathering gives the EU and United States per capita allocations that are four and nine times higher, respectively, than India, despite India still combating widespread energy poverty, with hundreds of millions of residents without basic energy services5. Exacerbating the problem, grandfathering is introduced into two other approaches (equal per capita and capability)1. While these approaches draw on ethically defensible bases (equality and ability to pay, respectively), the methodology1 dilutes them by means of a gradual transition period from pure grandfathering to the specified equity approach. (This concession cannot be rationalized on the basis of avoiding technically implausible reduction rates, nor economic efficiency, since Robiou du Pont and colleagues analyse transferable emissions allocations rather than physical emissions.) With global emissions declining rapidly towards zero, this slow shift means that nearly half of the remaining carbon budget is grandfathered, rather than being allocated according to the nominal equity principle of each approach. Making grandfathering a central part of three out of the five equity approaches used embeds a bias against poorer and lower-emitting countries. Second, Robiou du Pont et al. present only five of the six categories used by the IPCC, excluding one category based exclusively on the Responsibility Principle — that the largest contributors to global GHG concentrations ought to do the most to reduce global emissions. This exclusion discounts a key principle of the Rio Convention and UN Framework Convention on Climate Change, and compounds the bias against poorer, loweremitting countries. Third, the “IPCC equity categories”1 referenced cannot be considered an authoritative and ethically robust taxonomy of equity approaches in any sense. The IPCC borrowed this categorization from a single study6, intending simply to present data from an incomplete and non-representative sampling of approaches. The original study cautioned that “the current literature only covers a small proportion of the possible allocation approaches” and observed that “many different categorizations ... can be found in the literature”6. Indeed, the IPCC recognized the ethical importance of several other equity notions relevant for emissions allocations. These include: the relative moral relevance of consumption-based versus production-based emissions, survival versus luxury emissions, progressive versus regressive allocation of mitigation costs, prioritarianism versus egalitarianism and finally — but not least — the right to development and the critical ethical importance of the eradication of poverty. Incidentally, but importantly, each of these issues engender ethical arguments that imply greater allocations for poorer and lower-emitting countries compared with the subset of approaches used by Robiou du Pont and co-authors. Neglecting them compounds the bias in the results. Ultimately, the article’s conclusions are not so much derived as predetermined by the authors’ biased normative choices. These methodological and logical shortcomings of Robiou du Pont et al. reveal a more profound problem. When reflecting on the relative fairness of countries’ pledges and actions, the role of scholarly analysis and quantification is to help clarify the ethical underpinnings and consequences of the choices facing society. It is emphatically not to make those normative choices. However, the article by Robiou du Pont et al. has made a number of normatively crucial choices, and not explicitly but rather in a way that obfuscates the ethical underpinnings and their consequences. While presented as a neutral, ecumenical, comprehensive survey that follows an objective IPCC taxonomy, the overall effect — far from illuminating the moral choices confronting society — at best conceals the moral choices and at worst arrogates them. However, we are in utter agreement with Robiou du Pont et al. that “equity is still central for the ratcheting process and when discussing the adequate magnitude of climate finance and support”1. Climate change is a global commons problem, and broad global cooperation is needed to address it. As the IPCC noted, an agreement that is “seen as equitable can lead to more effective cooperation”7. The chances of keeping warming to tolerable levels vastly improve if there is a robust and productive conversation about fairness and equity8. ❐

Multi-criteria decision analysis in policy-making for climate mitigation and development

Greenhouse gas (GHG) mitigation policy-making has largely been conducted in isolation of development considerations. An emerging literature, bolstered by the “nationally determined” nature of the Paris Agreement, explores the identification and assessment of the co-impacts of mitigation actions. There is now a recognized need to consider mitigation an integral part of a multi-objective development challenge. However, the literature on how to practically and effectively apply this in policy-making, particularly in developing economies, is limited. This paper explores the potential for using approaches that fall under the umbrella of multi-criteria decision analysis (MCDA) in guiding analyses and policy-making that relate to the climate mitigation–development interface. It categorizes three distinct types of decision problems in the broad area of climate and development policy-making, and presents lessons from three case studies, in India, Chile, and Peru and Colombia taken together, where aspects of MCDA approaches were explored. Based on these reviews, the paper concludes that MCDA approaches, despite certain limitations, can add substantive and procedural credibility to existing toolkits supporting climate and development decision-making. Key contributions of the approach are to structure the analyses, systematically include stakeholder deliberations, and provide tools to rigorously incorporate quantitative and qualitative co-impacts in multiple objective-based decisions.

National climate change mitigation legislation, strategy and targets : a global update

ABSTRACT Global climate change governance has changed substantially in the last decade, with a shift in focus from negotiating globally agreed greenhouse gas (GHG) reduction targets to nationally determined contributions, as enshrined in the 2015 Paris Agreement. This paper analyses trends in adoption of national climate legislation and strategies, GHG targets, and renewable and energy efficiency targets in almost all UNFCCC Parties, focusing on the period from 2007 to 2017. The uniqueness and added value of this paper reside in its broad sweep of countries, the more than decade-long coverage and the use of objective metrics rather than normative judgements. Key results show that national climate legislation and strategies witnessed a strong increase in the first half of the assessed decade, likely due to the political lead up to the Copenhagen Climate Conference in 2009, but have somewhat stagnated in recent years, currently covering 70% of global GHG emissions (almost 50% of countries). In comparison, the coverage of GHG targets increased considerably in the run up to adoption of the Paris Agreement and 89% of global GHG emissions are currently covered by such targets. Renewable energy targets saw a steady spread, with 79% of the global GHG emissions covered in 2017 compared to 45% in 2007, with a steep increase in developing countries. Key policy insights The number of countries that have national legislation and strategies in place increased strongly up to 2012, but the increase has levelled off in recent years, now covering 70% of global emissions by 2017 (48% of countries and 76% of global population). Economy-wide GHG reduction targets witnessed a strong increase in the build up to 2015 and are adopted by countries covering 89% of global GHG emissions (76% not counting USA) and 90% of global population (86% not counting USA) in 2017. Renewable energy targets saw a steady increase throughout the last decade with coverage of countries in 2017 comparable to that of GHG targets. Key shifts in national measures coincide with landmark international events – an increase in legislation and strategy in the build-up to the Copenhagen Climate Conference and an increase in targets around the Paris Agreement – emphasizing the importance of the international process to maintaining national momentum. GRAPHICAL ABSTRACT