If a Tree Falls in a Kyoto Forest and Nobody is There to Hear it, will it be Accounted for? An Insider's View of the Negotiations Surrounding Land Use, Land‐use Change and Forestry for the Second Commitment Period of the Kyoto Protocol

• Date: 01 July 2011
• Published date: 01 July 2011
• DOI: http://doi.org/10.1111/j.1467-9388.2011.00715.x
• Author: Ian Fry

If a Tree Falls in a Kyoto Forest and Nobody is

There to Hear it, will it be Accounted for? An

Insider’s View of the Negotiations Surrounding

Land Use, Land-use Change and Forestry for the

Second Commitment Period of the Kyoto Protocol

Ian Fry

Parties are currently considering new accounting rules

for land use, land-use change and forestry (LULUCF)

for a second commitment period of the Kyoto Protocol.

This article explores these new accounting rules and

definitions, particularly in relation to forest manage-

ment. It looks at various accounting methodologies,

including the use of reference levels, a ‘bar approach’,

net-net accounting and full land-based accounting. It

also explores the use of harvested wood products,

the implications of force majeure and natural distur-

bances. It discusses the negotiations relating to new

activities for Annex I Parties to the Protocol, including

wetland management. The future of the Clean Develop-

ment Mechanism (CDM) with respect to LULUCF

is also considered and the politics and processes asso-

ciated with the negotiations are revealed. Finally,

there is a discussion on a future Protocol and what

implications this may have for accounting for emis-

sions and removals from LULUCF activities.

INTRODUCTION

As part of the overall deal in the Kyoto Protocol, Parties

were allowed to account for their emissions and remov-

als of greenhouse gases in the land use, land-use change

and forestry sector (LULUCF). The number of eligible

LULUCF activities was quite limited in scope. Some of

the activities were prescribed in the text of the Kyoto

Protocol (e.g., afforestation, reforestation and defores-

tation). Others would be defined later. The rules for

accounting for LULUCF activities are complex due to

their very nature. They are temporary, hard to measure

and subject to climatic change. Parties are now gearing

up for a second commitment period of the Kyoto Pro-

tocol and new rules for LULUCF are being developed.

This article follows from two previous articles by

the author1and describes the negotiation process

associated with developing new rules on LULUCF for

the second commitment period of the Kyoto Protocol.

It discusses the politics associated with accepting a

second commitment period and the role that LULUCF

is playing in this acceptance. It explores new accounting

proposals for forest management, including method-

ologies associated with reference levels, the use of

harvested wood products, the implications of force

majeure and natural disturbances. It discusses the

negotiations relating to new activities for Annex I

Parties to the Protocol, including wetland management.

The future of the Clean Development Mechanism

(CDM) with respect to LULUCF is also explored, and

the politics and processes associated with the negotia-

tions are addressed. Finally, there is a discussion on the

future of the Kyoto Protocol and what implications this

may have for accounting for emissions and removals

from LULUCF activities.

THE SECOND COMMITMENT

PERIOD OF THE KYOTO

PROTOCOL

In 2005, the first session of the Conference of Parties

serving as the meeting of Parties to the Kyoto Protocol

(COP/MOP) agreed to initiate a process to consider

further commitments for Parties included in Annex I

for the period beyond 2012 in accordance with Article 3,

paragraph 9, of the Protocol.2This work is led by what

became known as the ‘Ad Hoc Working Group on

Further Commitments for Annex I Parties under the

1See I. Fry, ‘Twists and Turns in the Jungle: Exploring the Evolution

of Land Use, Land-use Change and Forestry within the Kyoto

Protocol’, 11:2 RECIEL (2002), 159; and I. Fry, ‘More Twists, Turns

and Stumbles in the Jungle: A further Exploration of Land Use,

Land-use Change and Forestry Decisions within the Kyoto Protocol’,

16:3 RECIEL (2007), 341.

2See Decision 1/CMP.1, Consideration of Commitments for Subse-

quent Periods for Parties included in Annex I to the Convention under

Article 3, Paragraph 9, of the Kyoto Protocol (FCCC/KP/CMP/2005/

8/Add.1, 30 March 2006).

Review of European Community & International Environmental Law

RECIEL 20 (2) 2011. ISSN 0962 8797

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Kyoto Protocol’ (AWGKP). While the strict mandate of

Article 3, paragraph 9, refers to a review of Annex B to

the Protocol,3most Annex I Parties considered that any

review of the Annex also invoked a review of the rules

and possible subsequent amendments. This view was

disputed by a number of Non-Annex I Parties.4The

limited context of Article 3, paragraph 9, is relatively

clear. Nevertheless the definitions, modalities, rules

and guidelines for the application Article 3, paragraphs

3, 4 and 7 (the paragraphs referring to LULUCF), only

apply to the first commitment period.5New rules for the

second commitment period had to be developed.

Due to the sensitive nature of these mandate discus-

sions, the AWGKP Chair produced a revised report,

which included ‘an indicative, non-exhaustive list of

topics that may be relevant to the further work of the

AWGKP, drawing on the views expressed by Parties’.6

This revised report was produced in preparation for the

first meeting of the AWGKP in May 2006. In an attempt

to relieve the tension over the mandate discussion, the

Chair organized a roundtable on the means to reach

emission reduction targets. The focus of one of the

roundtable panels was LULUCF. Panellists and Parties

put forward a variety of proposals for LULUCF in the

second commitment period. These included small

adjustments to existing rules, making activities under

Article 3.4 compulsory, additional activities such as

wetland restoration, accounting for harvested wood

products and biofuels, and moving from activity-based

accounting to land-based accounting.7

LULUCF AS A KEY PART OF THE

SECOND COMMITMENT

PERIOD ‘DEAL’

For many Annex I countries, new rules for LULUCF in

the second commitment period would be a key compo-

nent to determining the future of the Kyoto Protocol.

The significance of LULUCF within the Kyoto Protocol

was not a new issue. A number of commentators previ-

ously suggested that the breakdown of negotiations at

COP 6 in 2000 was due to an impasse between the

European Union and the United States over LULUCF

rules.8Others suggested that ‘flexible’ LULUCF

accounting rules were needed to ensure that Russia

agreed to ratify the Protocol.9

LULUCF was and still is considered to be a significant

issue within the Kyoto Protocol. For many Annex I

Parties, removal of carbon dioxide by vegetation can

significantly offset the emissions from other sectors.10

Others have potentially high emission liabilities from

LULUCF.11 Throughout the ongoing AWGKP negotia-

tions, many Annex I Parties have stated that they

needed ‘the rules before the numbers’. In other words,

they were not willing to commit to new quantified

emission limitation or reduction targets for the second

commitment period until they were clear about the

accounting rules for the period. For some countries

with high stakes in LULUCF, this was an imperative.

Others firmly believe that LULUCF makes a significant

contribution to climate change abatement.12 These

technical discussions on LULUCF rules are overlaid by

the political question: whether or not there will be a

second commitment period to the Kyoto Protocol.13

The negotiations over new rules for LULUCF have, at

times, been quite intense. At one stage during the last

COP/MOP, the Australian climate change minister met

with the Deputy Prime Minister of Tuvalu and allegedly

3Article 3, paragraph 9 of the Kyoto Protocol states:

Commitments for subsequent periods for Parties included in

Annex I shall be established in amendments to Annex B to this

Protocol, which shall be adopted in accordance with the provi-

sions of Article 21, paragraph 7. The Conference of the Parties

serving as the meeting of the Parties to this Protocol shall initiate

the consideration of such commitments at least seven years

before the end of the f‌irst commitment period referred to in

paragraph 1 above.

See Kyoto Protocol (Kyoto, 11 December 1997), Article 3.9.

4See, e.g., Views Regarding Article 3, Paragraph 9, of the Kyoto

Protocol: Submissions from Parties (FCCC/KP/AWG/2006/MISC.1, 4

April 2006).

5See Decision 16/CMP.1, Land Use, Land-use Change and Forestry

(FCCC/KP/CMP/2005/8/Add.3, 30 March 2006), paragraph 4.

6See Planning of Future Work: Revised Report Proposed by the

Chair (FCCC/KP/AWG/2006/L.2/Rev.1, 25 May 2006). Note in par-

ticular paragraph 3 of the Annex to this report, which makes an

oblique reference to land use, land-use change and forestry where it

states:

3. Experience gained and lessons learned in implementing the

Kyoto Protocol: (a) Review and update of methods used for

emission inventories (global warming potentials, inventory guide-

lines, land use, land-use change and forestry).

7See Round Table on the Means to Reach Emission Reduction

Targets: Summary by the Chair (FCCC/KP/AWG/2008/CRP.1, 3

June 2008).

8See, e.g., C. Vrolijk, ‘COP-6 Collapse or “to be Continued” . . . ?’, 77

International Affairs (2001), 163, at 167; and M. Vespa, ‘Climate

Change 2011: Kyoto at Bonn and Marrakech’, 29:2 Ecology Law

Quarterly (2002), 395, at 409.

9See J. Reilly, ‘2003 Yearbook Book Review: Reconstructing Climate

Policy: Beyond Kyoto, by Richard B Stewart and Jonathon B. Weiner’,

15:2 Colorado Journal of International Environmental Law and Policy

(2004), 117, at 120.

10 During early discussions on whether or not to include LULUCF (or

‘sinks’, as they are generally called) it was noted that New Zealand

intended to use 81% of its quantif‌ied emission reduction or limitation

targets using sinks. See P. Taylor, ‘Heads in the Sand as the Tide

Rises: Environmental Ethics and the Law on Climate Change’, 19:1

UCLA Journal of Environmental Law and Policy (2001), 247, at 266.

11 For instance, depending on the rules, some countries like New

Zealand may have high emissions from farm animals, and other

countries like Australia, Canada, the Russian Federation and Portu-

gal may have high emissions from forest f‌ires.

12 See, e.g., D. Reay, ‘Spring Time for Sinks’, 446:7137 Nature (12

April 2007), 727, at 728.

13 See discussion below.

IAN FRY RECIEL 20 (2) 2011

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