Introduction
The Enhanced Transparency Framework (“ETF”), codified under Article 13 of the Paris Agreement, was designed to standardize greenhouse gas emission reporting and assess countries’ progress toward their Nationally Determined Contributions (“NDC”s).[1] However – despite its ambitious scope – the ETF lacks binding enforcement mechanisms.[2] Operating solely on voluntary compliance and offering no repercussions for inaccuracies or non-compliance, the ETF relies on the goodwill of member states.[3] This absence of enforcement measures limits the ETF’s potential to promote meaningful transparency, undermining the framework’s role in global climate governance.[4]
The following discussion proposes an amendment to Article 13 integrating a citizen suit provision – a mechanism to empower individuals and civil societies to hold governments accountable for climate obligations.[5] This proposal draws from successful domestic frameworks like the Clean Water Act (“CWA”) and Clean Air Act (“CAA”) in the United States – as well as international agreements such as the Aarhus Convention – to illustrate the effectiveness of public enforcement.[6] Embedding a citizen suit provision into the ETF would bridge this gap in accountability, creating a system where transparency and environmental justice unite within the global climate agenda.
The Rationale for Adding a Citizen Suit Provision
Currently, the ETF favors transparency over enforcement, allowing states significant discretion in compliance without effective oversight.[7] While this flexibility may accommodate varying national contexts, it risks undermining the ETF’s objectives.[8] Citizen suit provisions have demonstrated their effectiveness across multiple legal contexts, especially where government oversight is limited or inconsistent.[9] For example, United States (“U.S.”) environmental laws like the CAA and CWA enable citizens and non-governmental organizations (“NGOs”) to act when agencies fall short, thereby enhancing public oversight and compliance.[10] Similarly, the Aarhus Convention allows European citizens to enforce environmental accountability in their jurisdictions by ensuring public participation in environmental decisions and promoting access to justice in environmental legal matters.[11][12]
A citizen suit mechanism within the ETF would allow similar public oversight, allowing citizens to “guarantee that public officials are making good on [their] national commitment[s] to environmental protection.”[13] This provision would encourage compliance and advance environmental justice by providing vulnerable communities with a legal path to challenge major polluters and ensure governmental obligations are met.[14] Public participation initiatives, such as the Escazu Agreement in Latin America, have already shown the positive impact of public engagement in regulatory processes.[15] A citizen suit mechanism within the ETF would further empower communities often underrepresented in environmental governance and representation, granting them the ability to protect their rights in the face of environmental harm.
Implementation Strategies
Incorporating a citizen suit provision into the ETF would require amendments to Article 13 and specific guidelines for enforcement. Such an amendment would authorize lawsuits initiated by citizens or NGOs against governments that fail to meet ETF requirements, modeled after frameworks like the U.S. Clean Water Act and the Escazu Agreement.[16] Drawing on these frameworks, the amendment should provide individuals, NGOs, and impacted communities broad standing to initiate lawsuits in alignment with conventions such as the Aarhus Convention.[17]
Further, the citizen suit provision should identify clear, enforceable compliance breaches, such as misreporting emissions or failing to meet transparency obligations. Remedies should include injunctive relief, corrective actions, and financial penalties to deter non-compliance.[18] Financial penalties could serve as a particularly effective deterrent against underreporting or non-compliance with NDCs. By adding these structured consequences, the ETF could achieve a level of accountability that voluntary compliance alone has not obtained.
This provision would also enable NGOs to serve as monitors and enforcers by gathering data and supporting affected communities in pursuing legal action.[19] The success of this model in the Clean Water Act and the Aarhus Convention highlights the potential for civil society to play an instrumental role in strengthening public enforcement and ensuring adherence to climate commitments.[20]
Potential Challenges and Solutions
While a citizen suit provision within the ETF would offer significant benefits, practical and political challenges remain, including resistance from states concerned with sovereignty.[21] This tension could be managed through a dual-tiered approach, prioritizing resolution within domestic systems before escalation to international bodies. This approach would align with principles in international law that respect national sovereignty while creating a viable path for redress when domestic systems fail.[22] To further alleviate sovereignty concerns, the provision could also emphasize domestic resolution as the primary means of redress, with international mechanisms as a last resort. By structuring the citizen suit provision in this dual-tiered manner, the ETF would maintain respect for national legal frameworks while establishing a route for public enforcement, balancing the need for state autonomy with global accountability.[23]
The feasibility of citizen suits for affected communities presents another challenge, particularly for those with limited resources.[24] To ensure accessibility, the ETF should include financial assistance, cost-sharing measures, or legal aid programs.[25] These support mechanisms would ensure that citizen suits are available and effective for all communities, broadening participation and reinforcing the ETF’s global accountability framework.
Conclusion
In its current state, the ETF’s capacity to promote transparency remains constrained by a lack of enforceability, reliant on voluntary compliance. An amendment to Article 13 of the Paris Agreement to include a citizen suit provision would close this gap; the amendment would establish an enforcement mechanism that allows individuals and communities to play an active role in holding governments to their climate commitments. This addition would strengthen compliance and align the ETF with principles of environmental justice, giving a voice to those who are often the most impacted by climate change. With this amendment, the ETF could evolve into a more inclusive and effective framework, advancing the world’s climate goals while empowering citizens to protect their environmental rights.
[1] Eda Kosma, THE ENHANCED TRANSPARENCY FRAMEWORK IN PRACTICE: Submission of the First Biennial Transparency Reports, Ctr. for Climate and Energy Sols., July 2024, at 1.
[2] Paris Agreement art. 13, Dec. 12, 2015, T.I.A.S. No. 16-1104, 3156 U.N.T.S. 3.
[3] Id. at 2-3.
[4] Anne-Sophie Tabau, Evaluation of the Paris Agreement According to a Global Standard of Transparency, 1 Carbon & Climate L. Rev. 23, 33 (2016).
[5] James R. May, Now More than Ever: Environmental Citizen Suit Trends, 33 Envtl. L. Rep. News & Analysis 10704, 10705 (September 2003).
[6] Clean Air Act, 42 U.S.C. §7401 et seq. (2023); Clean Water Act, 33 U.S.C. §1251 et seq. (2023); Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), June 25, 1998, 2161 U.N.T.S. 447.
[7] Paris Agreement, supra note 2.
[8] Id. at art. 4 (“reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”)
[9] May, supra note 3 at 10705 (quoting Sen. Durenberger).
[10] Id.; 42 U.S.C. § 7604 (2023) (Clean Air Act’s citizen suit provision); 33 U.S.C. § 1365 (2023) (Clean Water Act’s citizen suit provision).
[11] United Nations Economic Commission for Europe (hereinafter “UNECE”), After 25 years of the Aarhus Convention, States’ compliance with environmental rights obligations matters more than ever, (June 26, 2023), https://unece.org/environment/press/after-25-years-aarhus-convention-states-compliance-environmental-rights.
[12] Attila Panovics, The Aarhus Convention Model, 2016 Hungarian Y.B. Int’l L. & Eur. L. 251, 255 (2016).
[13] May, supra note 3 at 10705 (quoting Sen. Scott).
[14] Id.
[15] Humberto Cantú Rivera, The Escazu Agreement: A Game Changer for Business and Human Rights in the Americas, Cambridge Univ. Press (Apr. 28, 2021), https://www.cambridge.org/core/blog/2021/04/28/the-escazu-agreement-a-game-changer-for-business-and-human-rights-in-the-americas/.
[16] Id.; 33 U.S.C. § 1365 (2023).
[17] UNECE, supra note 11.
[18] May, supra note 3 at 10711.
[19] Attila Panovics, supra note 12 at 259.
[20] May, supra note 3 at 10705; Panovics, supra note 12 at 259-61.
[21] May, supra note 3 at 10712 (asserting the U.S.’s Fourteenth Amendment’s sovereign immunity protection makes citizen suits against individual States less likely).
[22] Panovics, supra note 12 at 258 (acknowledging that Article 9(2) of the Aarhus Convention was written to accommodate domestic and international systems).
[23] May, supra note 3 at 10705 (explaining the use of citizen suits in ensuring national environmental goals are met); Panovics, supra note 12 (explaining the Aarhus convention’s effectiveness in ensuring public participation within the context of multilateral agreements).
[24] Kosma, supra note 1 at 2-3 (describing that the ETF allows flexibility in a Parties’ reporting based on their lack of capacity).
[25] Id. at 3 (likening these types of financial incentives to the Capacity-building Initiative for Transparency established by the Parties to the Paris Agreement).
