Subnational Action Research Articles

The Paris Agreement Presents a Flexible Approach for US Climate Policy

The Paris Agreement was specifically designed to provide sovereign nations with the flexibility they need to craft their own greenhouse gas reduction plans. The cyclical and transparent review of progress toward those goals is established to allow and encourage increasing ambition over time - a global race to the top. The withdrawal announced by the Trump Administration in June of 2017 has begun to motivate sub-national and non-state actors in the US to strengthen their own commitments. This combined effort, which is building off the tremendous technology advances underway, has the potential to keep the US in a global leadership position in the near-term. States and cities are continuing to craft legal frameworks to enable these transitions and the cost of clean power has evolved to make most public service commissions in the US comfortable with de-carbonisation plans. To achieve a very low carbon economy, federal policy to further unleash market forces will be needed in the longer-term. In light of the flexibility of the Paris Agreement regarding domestic policy, the likely continuation of technological advancement in key areas, and the momentum demonstrated by sub-national and non-state actors, the Administration is presented with an opportunity to take a new approach and claim a ‘better deal’ on the Paris Agreement. Looking at this groundswell of non-state and sub-national action and the opportunity for market-based approaches that have bipartisan support, there is no reason the Administration could not reformulate the US NDC in a way that contributes to resolving the climate problem.

Approaches to low carbon development in China and India

Low carbon development has gained policy prominence and is a concern of both environment and development policy globally and in China and India. This paper discusses the role of China and India as important global actors in light of development imperatives in the two countries. The article then looks at emerging approaches in the two countries related to financing, science, technology & innovation policy, and sub-national actions. The objective is to review efforts in China and India for contributing to learning experiences for other countries. The final section discussed the ways forward in terms of examining the role of China and India in terms of national policy strengthening as well as in global agenda setting. Implementation of sub-national initiatives in both countries faces challenges due to lack of adequate financing as well as knowledge such as greenhouse gas inventories and disaggregated resource and socio-economic assessments. Both India and China are making efforts in technology and innovation domains to set foot on a trajectory of low carbon development with varying degrees of success. In finance, both China and India have experimented with various instruments—the key difference is that China has taken the support of regulation more while India has leaned on to market based instruments. Both China and India are moving on an encouraging track regarding low carbon development with fairly well-designed domestic policies and consistent international engagement.

Subnational Diplomacy in Climate Action Plans of Border States in India

Subnational action on climate change in India is driven by the State Action Plans on Climate Change (SAPCC). The idea behind the SAPCCs was to decentralize action beyond the National Action Plan on Climate Change (NAPCC) especially with regards to the State and Union List. In India, like most other nations, diplomacy and international negotiations remain exclusively in the realm of the central government. But effective response to climate change would require Indian states to engage in bilateral negotiations at least with countries of the same physiography. This should help in exchange and development of technology and creating databases on risk assessment as climate change goes beyond spatial borders and is a shared security issue. The rationale behind the SAPCCs also opens up furthering of the scope of sub-national diplomacy. This article examines the SAPCCs of the Border States and their missions on strategic knowledge of climate change as an example in order to suggest the need for greater subnational action in the form of climate change diplomacy. Relying mostly on document analysis this paper explores whether engagement in subnational diplomacy would maintain the constitutional spirit while pushing the limits of subnational action for climate change in India. It aims to explore climate policy in India’s federal system to understand the extended role the subnational Indian states therein can play.

Local Liability

On February 4, 2016, the United States and eleven other countries signed the Trans Pacific Partnership (TPP) — the most far-reaching free trade agreement since the World Trade Organization’s founding in 1995. The TPP’s potential ratification promises to be one of the major fights during the last months of the Obama Presidency. Unlike most prior trade agreements, the TPP’s purported benefits do not come primarily from reductions in tariffs paid on goods at the border. Instead, they flow from assumptions that so-called non-tariff barriers — such as discrimination against foreign investors or service providers — will fall significantly under TPP. Yet to date unnoticed among the TPP’s 30 chapters, schedules, and annexes are provisions that exempt state, provincial, and local measures from compliance with many of the agreement’s nondiscrimination rules. Under the TPP, subnational governments such as California or Ontario — governments with substantial regulatory authority over regional economies much larger than many national economies — may indefinitely continue existing discriminatory policies against foreign investors or foreign service providers. These exemptions represent the multilateralization of a trend underway for a number of years in U.S. treaty practice: efforts to eliminate the federal government’s liability for subnational action that the federal government often cannot control and of which it is frequently unaware. Indeed, 41% of the claims brought under the investor-state dispute settlement (ISDS) provisions of the 1994 North American Free Trade Agreement (NAFTA) have challenged subnational government action. These exemptions also reflect a growing pushback against ISDS. Contrary to U.S. treaty practice and ISDS’s critics, this Article argues that foreign investors or aggrieved trading partners should be able to make their claims directly against subnational governments such as California, rather than only against national governments like the United States. I make the case by presenting and analyzing international liability rules for local action. Governments use three kinds of local liability rules: 1) immunity, under which neither the subnational nor national governments are answerable under international law for the actions of a subnational government; 2) vicarious liability, under which nations are liable for the actions of their subnational units even if they do not control them as a matter of domestic law; and 3) direct liability, under which a claimant’s case is brought directly against the offending subnational government. Vicarious liability is the default rule under the international law of state responsibility. However, immunity — the rule under an increasing number of economic treaties, including TPP’s investment and services chapters — is on the rise. Direct liability is rare, but exists in certain investment agreements and applies to the European Union. The choice among these liability rules is the most important front in efforts to reconcile a robust federalism with the increasing importance of local governments to international affairs — an ongoing battle in the United States, the European Union, and other federal nations. Direct liability best achieves the twin goals of fostering local governance and international cooperation for three reasons. First, direct liability would force subnational governments to internalize the costs of their actions, thereby deterring violations. Under vicarious liability, the costs of violations are born by the national government, and under immunity they are born by the claimant who is left with no recourse. Second, a move to direct liability would have beneficial distributional consequences, ensuring that powerful federal nations do not force liberalization in developing countries while protecting discriminatory practices within their own countries. Third, a move to direct liability recognizes the considerably more important role subnational governments play in international affairs today. From climate change and renewable energy to international trade, subnational governments are incredibly active in tackling matters of international concern. They should also bear responsibility for their actions.

Linking Subnational Climate Change Policies: A Commentary on the California–Acre Process

AbstractClimate change is a global environmental problem which has been addressed primarily at the multilateral level. However, national, supranational, and even subnational action on the issue has also sprung up. At the subnational level, California (United States) and Acre (Brazil) offer an interesting example of how domestic policies may be linked in order to address climate change. Based on a memorandum of understanding concluded in 2010, these two states have been working towards the possible linkage of their respective climate change policies, in essence providing a pathway for using emissions offset credits that are generated in Acre through reductions of forest-based emissions in the Californian cap-and-trade programme. Taking into account that this is an ongoing process, this commentary provides a general overview of the issue from the perspective of international law.