(Editor’s note: Earthjustice attorneys Martin Wagner and Erika Rosenthal are back from two weeks of long hours and hard work deep inside the world climate conference at Copenhagen. In their final report, Martin goes behind the headlines to describe and explain how the conference really worked and why it shouldn’t be dismissed as a failure. Amid the disappointments, there was progress, he says, and opportunities that must be seized.)

Erika and I are back from Copenhagen, and have finally gotten a few hours’ sleep, so it’s time to review what happened there, and to think about the work ahead. Let’s start with what happened.

After almost two weeks of negotiating (well, really, two years, culminating in two weeks in Copenhagen), representatives of the world’s governments were unable to make much progress in addressing some of the biggest obstacles to moving forward together to address climate change.

Those obstacles include the unwillingness of major industrialized countries—most notably the United States, but Canada, Australia and others followed suit—to commit to reducing greenhouse gas emissions at anything close to the scale necessary to avoid runaway climate change. This was particularly galling to the least developed nations and the small island states that face overwhelming harm or even loss of their entire nation if global warming does not slow immediately.

In addition to not committing to reduce their emissions, the same industrialized countries also had not pledged a fair level of funds and technological assistance to help developing countries adapt to climate change and reduce their growing GHG emissions without jeopardizing their right to develop to achieve a reasonable standard of living.

On the other hand, developed countries—the United States in particular—were concerned that the largest developing country GHG emitters, led by China, India and Brazil, would not agree to international scrutiny of their actions to slow their rate of emission. These and other conflicts led to a deadlock in the negotiations by late last Wednesday night.

On Thursday, the United States tried to break the logjam by sending Secretary of State Hillary Clinton to announce U.S. support for an effort to help find $100 billion dollars a year in climate assistance for developing countries by 2020. This created a spark of hope that both sides might make additional concessions that could lead to a productive agreement before the end of the week.

It soon became clear, however, that the poor nations most impacted by climate change would have none of it—without serious emission-reduction commitments by the major emitters, they were not going to be bought off by vague promises of financial assistance. (This highlights both the strength and weakness of the consensus decision-making process in the UN climate negotiations: while it means that a small group of countries can block agreement, it also means that otherwise powerless countries facing the most serious threats from climate change can make sure their concerns are heard.)

This was the situation when Barack Obama and other heads of state appeared, many of them desperate to avoid a collapse of the climate negotiations (not only at Copenhagen but beyond) and, in the case of the president, to keep the momentum up for passage of critical climate legislation at home. After a few false starts, President Obama and the leaders of China, India, Brazil and South Africa agreed to the "Copenhagen Accord," a non-binding political statement of intention with respect to a number of the key issues in the climate negotiations.

Among other things, the Copenhagen Accord recognized a need for the major emitters of greenhouse gases to take action to avoid increasing the global average temperature more than 2 degrees Celsius, which science says would give a 50-50 chance of avoiding catastrophic changes to the climate system. (The most recent science makes clear that this is a conservative estimate, and that any increase over 1.5 degrees is certain to be devastating to humans and ecosystems.)

Unfortunately, after having set this goal, the accord does little to achieve it: industrialized countries are given the opportunity to pledge a non-binding reduction target at whatever level they want, with no consequences for not meeting it beyond having to make periodic reports on their progress. Similarly, developing countries can pledge mitigation actions (like China’s previous commitment to increase the carbon efficiency of its economy), but again with little monitoring and no consequences for failing to achieve their goals.

Perhaps of greatest concern is the fact that there is no mechanism for pledges made under this system to relate to climate science or the goal of limiting global warming to 1.5 or 2 degrees. Indeed, by the end of last week, the UN’s own climate agency had calculated that the reduction pledges countries had put on the table would lead to a global temperature increase of at least 3 to 4 degrees Celsius, an estimate that does not take into account a number of factors likely to mean that emissions reductions would be smaller than actually pledged.

The accord does acknowledge the need for financial and technological assistance from developed countries to the most vulnerable developing countries, including a restatement of the goal of "jointly mobilizing" $100 billion per year by 2020. Again, however, this vague promise—combined with the fact that the accord was negotiated among only a handful of countries outside of the regular negotiation process—was not enough to satisfy many of the developing countries, who blocked efforts to get all of the parties to the U.N. Framework Convention on Climate Change to join the accord.

In the end, the parties simply "noted" the existence of the accord, and agreed to carry negotiations forward into 2010, with a goal of reaching new agreements at the next Conference of the Parties in Mexico in December.

So where does that leave us? Has the U.N. climate process collapsed? How do we move forward to ensure action that will avoid catastrophic climate change? The answers to these questions are unclear, but there are a few things we can say for sure.

First, the ball is squarely in Congress’s court now. The Copenhagen Accord and the failure to reach greater consensus in Copenhagen mean that domestic actions to reduce greenhouse gases are even more crucial. The international system has not yet been able to create binding rules, but the urgency of action continues to increase.

Moreover, it is clearer than ever that if the U.N. negotiations—or any other truly global process—can succeed, it will require real action by the major emitting nations, with true leadership from the United States. In working with the other governments to craft the Copenhagen Accord, President Obama appears to have calculated that an imperfect outcome in Copenhagen could preserve space for Congressional action on domestic climate legislation. The president and Congress must work together—and quickly—to make sure this gamble pays off.

Second, the United States must renew its commitment to lead—through example at home and active and constructive engagement internationally—in negotiations to reach a fair, ambitious and binding climate agreement that will take the place of the placeholder that is the Copenhagen Accord.

Binding mitigation commitments, with effective monitoring systems and consequences for failing to meet them, must be based on science and set at levels that can prevent the worst effects of climate change and that reflect nations’ actual and historical contribution to the problem. Going forward, this must take into account the unique opportunity presented by black carbon and other short-lived climate forcers. Financial and technical assistance must reflect both national contribution to the problem and the needs of the poorest and most vulnerable countries.

In addition to the substance, there are important process considerations. The Copenhagen Accord could set a dangerous precedent of addressing climate change without the full participation of the less powerful but most affected nations. Their participation helps guarantee the fairness of the negotiations, and it is important that they be fully included in negotiations going forward.

Similarly, there must be mechanisms that allow the full and effective participation of individuals and communities who stand to suffer the most from climate change and from measures taken to mitigate climate change. This means acknowledging the procedural and substantive rights of all stakeholders. For example, indigenous and other forest-dependent communities must have the right to prior informed consent to actions that could limit their access to forest resources in the name of reducing deforestation.

A final question concerns Earthjustice’s role in the process going forward. We worked hard on a number of fronts in Copenhagen, and made progress despite the disappointing outcome.

Up until the final days of negotiation, the draft texts included several statements recognizing the connection between climate change and human rights—text we helped draft and for which we advocated strongly with government delegates. A number of provisions on stakeholder participation, the role of particularly vulnerable peoples and the need to protect natural ecosystems (avoiding, for example, the use of plantation forests as a way of reducing deforestation) for which we advocated also made it into the late stages of the negotiations.

Similarly, we advocated for language on compliance that could be used as a placeholder in the negotiating texts that will serve as the foundation for work next year. Although the texts including these provisions were set aside in favor of the Copenhagen Accord, the progress we made will provide a strong foundation for inclusion of these protections in a future agreement.

We also made progress in laying the groundwork for international measures to reduce black carbon emissions, one of the best options for short-term slowing of Arctic warming and global snow and ice melt. We met with leading black carbon scientists working in the Arctic and in the Himalayan "third pole," and worked with Arctic indigenous peoples and ambassadors from the low-lying Caribbean countries to bring together the voices of those who are most vulnerable to warming and melting in the Arctic that is accelerated by black carbon pollution.

The current status of the negotiations also highlights the need for us to continue our advocacy in other international fora, as well as our domestic litigation and advocacy:

Our continued work with the U.N. Environment Programme and other international institutions to recognize and reduce the impacts of black carbon will help ensure the rapid inclusion of this global warming pollutant in international negotiations.

Continuing our groundbreaking advocacy to defend the human rights of those most affected by climate change will keep the important human rights-climate change link on the table as negotiations go forward.

Using innovative international institutions such as the World Heritage Committee will ensure continued emphasis on global warming’s effect on ecosystems.

Our work to ensure a public voice in environmental decision-making will help ensure a similar role in climate decisions.

With the Copenhagen Accord’s emphasis on domestic measures, our domestic global warming work will also take on new significance:

Our work to stop the worst North American sources of global warming pollution (also read here) will be crucial to ensuring that the United States can take on strong mitigation commitments and build trust in the rest of the world.

Likewise, increased energy efficiency measures—which Earthjustice is helping to promote—will help reduce U.S. emissions and increase space for making international commitments.

Our work to ensure regulation of key sources of global warming pollution also takes on increased significance. For example, international regulation of ship and aircraft emissions is a key part of an international climate regime; our action to force domestic measures to address these sources (read here and here) can help create incentives for such international steps.

We never expected to stop any of this work after Copenhagen. The outcome of those meetings only increases our resolve to continue our efforts in the coming year.