Carbon Market Watch

For fair and effective climate protection.

CDM Appeals Procedure (Newsletter #10)

18 Sep 2010

Further to decision 2/CMP.5, the Board will discuss a first draft of procedures for appeals to challenge decisions by the CDM Executive Board at this week’s meeting.

The inclusion of an appeals procedure in the CDM project approval process presents a crucial opportunity for the Board to promote enhanced accountability, legitimacy and public trust in and acceptance of the CDM as a valid tool for reaching its goals under the Kyoto Protocol – namely, mitigating global climate change while promoting sustainable development. It also provides an opportunity to introduce coherence and quality control into the Board’s decision-making process.

However, the draft procedures as presented by the UNFCCC secretariat fail to include the right for stakeholders other than project participants, DNAs and DOEs to lodge an appeal.

According to Decision 2/CMP 5, the EB is required to adopt appeal procedures for “stakeholders directly involved, defined in a conservative manner, in the design, approval or implementation” of a CDM project activity. Despite the suggestion that stakeholders entitled to appeal should be interpreted in a “conservative manner,” it is up to the Board to interpret the term “stakeholders”.

Within this context it is important to note that the right of members of the public to access justice in environmental matters is enshrined in international law and numerous conventions to which many UNFCCC/Kyoto Protocol parties are party. These principles are based on the recognition that the public plays an important role by drawing to the attention of decision-makers concerns, errors, inaccuracies or facts that were overlooked, thereby acting as an extra check on actions that potentially harm the environment or public health. At the same time, introducing transparency and allowing public input into the process serves to eliminate distrust in the decision-making process, and in the decision-makers themselves. Thus, one of the key requirements of meaningful public participation in environmental decision-making is public access to judicial or administrative proceedings.

The European Commission has adopted various Directives and Decisions implementing the access to justice requirement of the Aarhus Convention. In 2006, the European Parliament and Council adopted

Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p.13)(“Aarhus Regulation”).

The Aarhus Regulation enables environmental NGOs meeting certain criteria to request an internal review under environmental law of acts adopted, or omissions, by Community institutions and bodies

You can view more detailed comments on CDM Watch’s view on appeals procedures in our submission23 to a previous call for public input from the EB.

Action to be taken by the Board: CDM project activities affect the rights not only of communities living in the physical vicinity of the project, but also citizens across the globe who are affected, or will be affected, by global climate change. In sum, CDM Watch urges the Board, in determining which stakeholders may appeal against its decisions, not to overlook the right of stakeholders to be afforded access to redress from improper or unlawful decisions affecting the environment, as laid out in numerous international laws and agreements. As such, stakeholders who have submitted comments to CDM project activities should be granted the right to appeal.

[23] Submission by CDM Watch, Earthjustice and Transparency International available at http://cdm.unfccc.int/public_inputs/2010/cmp5_para42_43/cfi/S71E746O1LKEWDX7VG76607DX8CBJ1;