The 18th meeting of the Conference of the Parties (COP) to the UN Framework Convention on Climate Change started on Monday, Nov. 26. Undoubtedly, COP 18 is a key meeting since it is the last meeting before the expiration of the first commitment period on December 31, 2012 for the Kyoto Protocol’s Annex B emission reduction commitments. This meeting will hopefully lead to the adoption of amendments to the Kyoto Protocol allowing for the commencement of a second commitment period in January 2013.
The International Institute for Sustainable Development provides terrific daily meeting summaries, available at http://www.iisd.ca/climate/cop18/enb. Among the key things that happened on Monday were not just the opening statements, which included mandatory posturing, but also the adoption of the meeting’s rules of procedure. These rules are critical not only for the orderly conduct of the meeting but also for the adoption of decisions that become the official outcomes of this gathering of the COP (the governments that are parties to the treaty).
According to the Monday summary, the COP adopted the 1996 draft rules of procedure (FCCC/CP/1996/2), with the exception of draft rule 42. (The draft rules can be found here: http://unfccc.int/resource/docs/cop2/02.pdf .) The 1996 draft rules were first put forward for adoption by the COP at its second meeting in 1996. In spite of UNFCCC Article 7.2(k), which requires that the COP “agree upon and adopt, by consensus, rules of procedure . . . for itself,” and Article 7.3, which requires that the COP adopt these rules of procecure at its first session, that has never occurred in the 20 year history of the UNFCCC. Thus, as far as I can tell, at each COP meeting since then, the parties have used the draft rules provisionally with the exception of draft rule 42.
What is draft rule 42? In essence draft rule 42 sets out the key voting requirement for COP “decisions on matters of substance,” i.e. anything that really matters. Without draft rule 42, there is no explicit voting rule for the meeting. However, that does not mean that there can be no binding votes. Instead, the default rule in international law applies – decisions must be taken by consensus of all the parties.
Thus, if one ever wondered why it is so difficult to for the UNFCCC parties (and Kyoto Protocol parties, or for that matter many international environmental treaty organizations) to make controversial decisions, the inability to adopt a voting rule altering the consensus requirement should tell a lot.
Here’s a story by Dawn Reeves from today’s Inside EPA on Scott Fulton:
EPA’s Top Lawyer Retires
Posted: November 27, 2012
EPA General Counsel Scott Fulton is retiring from the agency effective Jan. 3, leaving open another top slot for President Obama to fill in his second term.
Fulton, whose departure was announced by EPA Administrator Lisa Jackson in an email last week, oversaw the agency’s lawyers during a period of mixed legal outcomes — though some pending cases could still face additional review by the Supreme Court. He will become a visiting scholar at the Environmental Law Institute.
In addition to Fulton, other top slots that will have to be filled include leaders of the agency’s water and toxics offices. Jackson has not said whether she will remain at the agency, though some sources say the White House may ask her to stay on to avoid a “hellish” Senate confirmation battle.
Jackson announced Fulton’s departure with “mixed emotions,” citing his “leadership, impeccable judgment, respected integrity and considerable experience.” Principal Deputy General Counsel Brenda Mallory will serve as acting general counsel, according to Jackson’s email, where she also praised deputy general counsels Avi Garbow and Bicky Corman as “invaluable” saying they “provide outstanding leadership in the coming months.”
For more, see the following link that Inside EPA kindly provided:
Scott Fulton, my former boss at EPA, is retiring from the Agency effective January 3. Principal Deputy GC Brenda Mallory will be acting until a new successor is confirmed by the Senate. This was not so unexpected, but means that the Agency is losing one of its most experienced and thoughtful senior leaders who has helped steer it in the right direction for the last few decades. He has also been one of the Agency’s most versatile leaders, with an amazing grasp of the Agency’s operations, having served in a number of very different roles at EPA.
He started his career doing enforcement work at the Environment Division in the Justice Department in the early 80s, then moved to the Enforcement Office at EPA, where he eventually rose to the Deputy Assistant Administrator position. He then served as Principal Deputy General Counsel, was appointed a judge on EPA’s Environmental Appeals Board, and then joined the Office of International Affairs as Deputy Assistant Administrator. For a while, Scott also served as the Acting Assistant Administrator for the International Affairs Office. At the beginning of President Obama’s first term, EPA Administrator Jackson asked Scott to serve as Acting Deputy Administrator of the Agency, the number 2 role in the organization. Eventually, he was nominated by the President and confirmed by the Senate as the Agency’s General Counsel, the role that he is now stepping down from.
When he leaves EPA, Scott will be joining the Environmental Law Institute as a visiting scholar and possibly become engaged in other matters.
Incidentally, here’s an interesting record that Scott holds: He is already the longest-serving General Counsel in the history of EPA. By the time he leaves, he will have served in his capacity for about 3 years and 5 months – longer even than Jonathan Cannon, who logged 3 years at General Counsel.
This is sad news (for me as a former faculty member of Vermont Law School), but not surprising. Law school applications have been lower nation-wide over the past couple of years. The expectation expressed by some, such as Dean Frank Wu of Hastings, is that this is part of a permanent adjustment for law schools that reflects fundamental changes in the market for legal services.
In response to these trends, VLS will be reducing staff, including potentially faculty, according to VLS President Marc Mihaly. Good luck to VLS and all of my former colleagues there.