Key safeguards in the CDM appeals procedure (Newsletter #9)
In Decision 2/CMP.5, the Parties to the Kyoto Protocol requested the Board to design procedures for appeals to challenge decisions by the CDM Executive Board and DOE performance.
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 is likewise an opportunity to introduce coherence and quality control into the Board decision-making process.
Following the brief presentation of the results of a call for inputs from stakeholders, the Board will consider a policy paper on draft procedures for appeals against decisions of the Board during this upcoming meeting. The Board will specifically discuss following questions:
- Who should act as the appellate body?
- What should be the scope of appeals allowed?
- Who should be allowed to appeal?
- What information should the appellate body consider in making its decision?
- Generally, what should be the type of appeal process?
- What deference should the appellate body owe to the ruling of the initial decision maker?
- What obligations should be placed upon the appellant to receive a favourable ruling?
CDM Watch and other environmental organizations have submitted responses to an earlier call for public input and strongly recommend that the Board adopt procedures that meet the following basic criteria:
- The right of stakeholders to appeal must be implemented as broadly as possible to address the wider impacts that flawed CDM projects have on global climate change and sustainable development.
- Stakeholders must be afforded the right to request a review of registration or issuance requests in order to avoid unnecessary appeals.
- Appeals must be allowed on EB decisions to approve a project following review, not just rejections, and include both procedural and substantive violations.
- Appeals must be allowed on EB decisions whenever there is probable cause that a DOE may not have performed its duties in accordance with the rules or requirements of the CMP or EB.
- The time within which appeals may be brought should not be limited where new, material facts come to light indicating that a CDM project does not meet the core requirements.
- An accurate and complete record upon which the appeal is based must be compiled and made publicly available.
- Rules, procedures, and codes of conduct and ethics must be put in place to ensure that the appeals body is independent, competent, impartial, and accountable.
Action to be taken by the Board: Key safeguards such as the ones listed above must be included in the appeal procedure in order to promote transparency, accountability, and consistency in the CDM project approval process, improve the efficacy of the CDM as a tool for reducing greenhouse gas emissions, and allow for more meaningful public input into the Board’s decision-making – something that is woefully lacking under the current procedures.
 Decision 2/CMP 5, Further Guidance on the Clean Development Mechanism
 Submission by CDM Watch, Earthjustice and Transparency International available at http://cdm.unfccc.int/public_inputs/2010/cmp5_para42_43/cfi/S71E746O1LKEWDX7VG76607DX8CBJ1; Submission by the Climate Action Network (CAN) available at http://cdm.unfccc.int/public_inputs/2010/cmp5_para42_43/cfi/KTDEUYD4LL4X9ZVNV62GFQMFLNEM2S; Submission by Paryavaran Mitra available at http://cdm.unfccc.int/public_inputs/2010/cmp5_para42_43/cfi/TEB1FK9HTMZZ7P4OQUKN0T02PO4KAW
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