Was it the ‘Beginning of the End’? COP28 & the Phantom Fossil Fuel Phase Out


I fervently hoped to be proven wrong.

In a blog post on Nov. 30, two days before my arrival in Dubai, I had predicted that the 28th Conference of the Parties (COP28) of the United Nations Framework Convention on Climate Change (“Framework Convention,” or “UNFCCC”) would fail miserably.

There was always the chance (as well as the hope, of course) of a happy surprise, because if the 198 UNFCCC signatories (“the nations”) had reckoned properly with the relevant facts, they would have struck a binding agreement to, at a minimum, phase out fossil fuels within two decades – including with respect to their production.

In the end, the COP28 consensus communiqué didn’t come close to what is sorely needed to protect and restore our climate system. And yet, the conference was not a total disaster. But before turning to several slivers of progress, we should consider the relevant, if largely unheeded, central facts, of which there are at least two.

Relevant Facts

For one, according to a recent study by the eminent climate scientist James E. Hansen and colleagues, Global Warming in the Pipeline, the rate of global warming is actually growing – a function of increasing energy imbalance and a recent reduction in aerosol pollution.[1]

Certain aerosols function to mask part of the warming impact that our planet otherwise would experience from greenhouse gas (GHG) pollution. Their atmospheric reduction – however necessary to improve public health – thus hastens and exacerbates dangerous climate change.

Moreover, as the Pipeline authors established, our planet’s equilibrium warming even at today’s level of GHGs is far, far higher than generally understood, with the authors estimating a 10°C increase in ambient temperature from preindustrial levels, albeit “reduced to 8°C by today’s human-made aerosols.” Id. (But again, aerosol levels may be declining, such that more warming will be realized soon.)

As a result, “under the present geopolitical approach to GHG emissions, global warming will exceed 1.5°C in the 2020s and 2°C before 2050,” id., and our planet will continue to be pressed toward almost unimaginable climate extremes – unless we get serious. Relevant to the UNFCCC process, this implies that the Paris Agreement’s stated temperature limit is now obsolete. It also means the repeated incantation that the nations need to “keep 1.5°C in reach” – from COP28 President Sultan Al Jaber, and others – is a fiction, although, perhaps, a useful one.

The Paris Agreement’s stringent temperature limit is now a fiction.

Second, according to an international study released midway through COP28, Global Carbon Budget 2023, “[g]lobal emissions from fossil fuel use are projected to rise 1.1% in 2023 (range 0.0% to 2.1%), reaching 36.8 billion tonnes of carbon dioxide (GtCO2), with rises expected in all fuel types (coal, oil, and natural gas). This brings fossil CO2 emissions to a record high, and 1.4% above the 2019 pre-COVID-19 levels.” The Carbon Budget authors also observed, with impressive understatement, that “[t]here is no sign of the rapid decrease in global emissions that is needed to tackle climate change. The needed acceleration in global efforts to decarbonize the economy is not yet visible in either fossil or land global emissions trajectories, despite progress in individual countries.” Id.

“The needed acceleration in global efforts to decarbonize is not yet visible in either fossil or land global emissions trajectories.”

Accordingly, despite more than 30 years of efforts since its signing, the nations continue to fail their central obligation under the Framework Convention – that is, to stabilize atmospheric GHG concentrations at a level that “prevent[s] dangerous anthropogenic interference with the climate system.”

Slivers of Progress

Some important progress at COP28 was secured with respect to matters that, while critical for many highly climate-vulnerable nations, are nonetheless, at least in my view, outside of the UNFCCC’s original concern. In other words, the need for such action, whether in terms of adaptation funding, climate finance, or a special fund for loss and damage, arises largely because the major polluting nations have failed to fulfill their central obligation to ensure against dangerous levels of atmospheric GHG concentrations.

That was true, for instance, as to the issue of loss and damage. A Loss and Damage Fund had been sought for years by highly vulnerable nations, as the remarkably useful Carbon Brief notes, in order to help them “deal with everything from hurricane damage to sea-level rise.” At COP28, delegates finally approved the “operationalization” of a loss and damage fund – and they did so, impressively, at the conference’s very opening session. Essentially, the groundwork was laid over months of work preceding COP28.

However, a number of details concerning the Fund’s operation were punted to a 26-member board. One of those details even concerns the Fund’s name, because US climate envoy John Kerry inexplicably and persistently declined to use the term “Loss and Damage Fund” – instead calling it a “climate impact response” fund. Id. Other decisions still to be made concern whether the World Bank will be the Fund’s long-term home and whether wealthy nations will contribute to the Fund at anything approaching what is required to deal with climate-induced disasters and pressures.

The drop-in-the-bucket commitment to loss and damage by major polluting nations is telling.

As to actual funding: The UAE immediately announced a $100 million contribution, and its pledge was soon matched by Germany. But total commitments to the new Fund reached only ~$700 million by the middle of COP28. That figure is approximately “0.2% of the irreversible economic and non-economic losses developing countries are facing from global heating every year,” according to The Guardian. This drop-in-the-bucket commitment from the major polluting nations is telling. For its part, the United States – by far the world’s biggest historic GHG polluter – committed a paltry $17.5 million, and even that is contingent on Congressional approval.

Some progress was made with respect to non-CO2 emissions, as well. The final COP28 communiqué called upon the international community to “substantially reduc[e] non-carbon-dioxide emissions globally, including in particular methane emissions by 2030.” (Earlier iterations were more particularized, not only with respect to methane but also emissions of N2O and F-gases.)

There was also a vague and voluntary pledge, coordinated by the UAE and Saudi Arabia and joined in by some 50 national and independent oil and gas corporations, to achieve “net-zero operations by 2050 at the latest, [end] routine flaring by 2030, and [achieve] near-zero upstream methane emissions.” That “Oil and Gas Decarbonization Charter” was excoriated by some for its failure to account for end-state (Scope 3) emissions – those produced when oil, gas and coal are used as intended. And yet at least a few analysts consider the move to be an important opening, regarding the industry pledge as confirmation that “deep and fast cuts to this super climate pollutant [methane] can be achieved.”

Taking Stock of Fossil Fuels, At Long Last?

The neologism “Stocktake” is diplomatic-speak for the international community’s commitment to “periodically take stock of the implementation of [the 2015 Paris] Agreement to assess the collective progress towards achieving [its] purpose . . . and its long-term goals.” Paris Agreement, Art. 14, par. 1.

The UNFCCC “Global Stocktake,” then, is a sort of international progress-report, and at COP28 the nations were slated to issue it for the very first time. The Stocktake retains considerable practical importance in the UNFCCC/Paris system since revised pledges on climate action – the so-called Nationally-Determined Contributions (NDCs) that each nation must submit to the UNFCCC secretariat declaring additional steps it will take – are supposed to be “informed by the outcomes of the Stocktake.” Art. 4, par. 9.

That formal reckoning process, in conjunction with eve-of-COP28 advocacy by 106 European Union and Organization of African, Caribbean and Pacific States for a phase out of “unabated” fossil fuels, likely induced the COP28 Presidency to include a series of options for negotiators in the various drafts. I summarize some of them with respect to fossil fuels in Table 1, immediately below, from Stocktake drafts for December 5, 8, 11 and 13.

COP28 Global Stocktake: Fossil Fuel Phase Out, Disappearance, and Reappearance
12/5 Version12/8 Version12/11 Version12/13 Version
Calls upon Parties to take further action in this critical decade towards:Calls upon Parties to take further action in this critical decade towards:. . .(C)alls upon Parties to take actions that could include, inter alia:. . . [C]alls on Parties to contribute to the following global efforts, in a nationally determined manner, taking into account the Paris Agreement and their different national circumstances, pathways and approaches:
. . . (c) Option 1: An orderly and just phase out of fossil fuels;. . . (c) Option 1: A phase out of fossil fuels in line with best available science;(e) Reducing both consumption and production of fossil fuels, in a just, orderly and equitable manner so as to achieve net zero by, before, or around 2050 in keeping with the science.. . . (d) Transitioning away from fossil fuels in energy systems, in a just, orderly and equitable manner, accelerating action in this critical decade, so as to achieve net zero by 2050 in keeping with the science;
Option 2: Accelerating efforts towards phasing out unabated fossil fuels and to rapidly reducing their use so as to achieve net-zero CO2 in energy systems by or around mid-century;Option 2: Phasing out of fossil fuels in line with best available science, the IPCC’s 1.5 pathways and the principles and provisions of the Paris Agreement;
Option 3: no textOption 3: A phase-out of unabated fossil fuels recognizing the need for a peak in their consumption in this decade and underlining the importance for the energy sector to be predominantly free of fossil fuels well ahead of 2050;
Option 4: Phasing out unabated fossil fuels and to rapidly reducing their use so as to achieve net-zero CO2 in energy systems by or around mid-century;
Option 4 [sic]: no text
Table 1: Climate Protection & Restoration Initiative (CPRClimate.org) based on UNFCCC Global Stocktake drafts at https://unfccc.int/

The net result: Early on Dec. 13, 2023, some 23 hours after deadline, the Stocktake was approved “with no objections at lightning speed.” Carbon Brief soon thereafter reported a summation quip from UN climate chief Simon Stiell: “While we didn’t turn the page on the fossil fuel era in Dubai, this outcome is the beginning of the end.”

A number of major news sources followed suit, including, for instance, this headline and subtitle from the New York Times: In a First, Nations at Climate Summit Agree to Move Away From Fossil Fuels: Nearly 200 countries convened by the United Nations approved a milestone plan to ramp up renewable energy and transition away from coal, oil and gas.

But did they really?

It is true, incredible as it may seem, that for the first time the term “fossil fuels” was used in an official COP final communiqué. But what is clear from the Dec. 13 draft Stocktake, which became the COP28 consensus communiqué, is that the nations did not at all agree on a clean and clear call for a phase out of fossil fuels.

Instead – highlighting here some of the document’s weasel-words – the nations are merely “called upon to contribute to a global effort aimed at transitioning away from fossil fuels in energy systems.” Of course, if a nation, either independently or else motivated by the soft COP28 final action call, were to proceed to phase out its own fossil fuel production and use, its effort would be consistent with the COP28 final statement. Indeed, that nation likely would be acclaimed for advancing its intent. But a nation also could do far less, under the COP28 final communiqué, and thus allow virtually unremitting climate pollution for additional decades, with little risk of international disapprobation.

Nations can do far less, with no risk of conflict nor fear of international disapprobation.

Earlier iterations were at least somewhat more prescriptive. For instance, in the December 5 and 8 Stocktake drafts, delegates were encouraged at least to consider options to call for an “orderly and just phase out of fossil fuels (Dec. 5) or a “phase out of fossil fuels in line with the best available science.” (Dec. 8.) But, by December 11, any hint of a genuine call for an international fossil fuel phase out was gone.

What happened? That is a matter to which we will have occasion to turn to next. For now I can offer the intrepid reader, who has made it this far, a hint by way of the following question: Which international organization, whose four initials commence with an “O” and end with a “C”, plays an outsized role in pressing our planet to its ruin?

[1] As I indicated here most recently, through my solo-practice law firm I also serve as Dr. Hansen’s legal and policy adviser.

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