What are national ‘climate change acts’?

Abstract

This paper investigates national ‘climate change acts’. Climate change acts are a newly emerging, innovative form of legislation designed to drive down economy-wide greenhouse gas emissions. They impact the energy sector most particularly, as the most abundant source of global greenhouse gas emissions. The analysis highlights various conceptual, definitional and linguistic problems that arise where one seeks to apply the term ‘climate change act’ meaningfully in the context of climate and energy law and policy discourse. It is demonstrated that such difficulties exert a latent undermining influence on technical and analytical coherence in the field. Means of reducing or avoiding these sorts of problems going forward are outlined and discussed. As part of this process, a working definition of this emerging form of legislation is set out in careful exacting terms. Here, its meaning is equated with the technical descriptor ‘national framework climate legislation’. Consideration is also accorded to the future of climate change acts in this analytical setting, and extant commentary engaging the notion of second-generation climate policy is drawn upon in order to construct a working definition of second-generation climate change acts that can usefully inform aspects of analysis in going forward.

Keywords:

• climate change acts
• climate and energy legislation
• climate and energy policy frameworks

Acknowledgements

The author thanks the Editor and reviewers at the Journal of Energy & Natural Resources Law and Professor Liz Fisher (University of Oxford) for comments on this paper in draft form, which helped to improve it.

Notes

1 ‘Climate change acts’ are a particular form of climate legislation; see the discussion to follow. Climate legislation has emerged increasingly as a targeted object of research inquiry over the last decade. See eg Alina Averchenkova, Sam Fankhauser and Michal Nachmany (eds), Trends in Climate Change Legislation (Edward Elgar 2017); Rachel Brewster, ‘Stepping Stone or Stumbling Block: Incrementalism and National Climate Change Legislation’ (2009) 28 Yale Law and Policy Review 245; Richard Cowart, ‘Carbon Caps and Efficiency Resources: How Climate Legislation Can Mobilize Efficiency and Lower the Cost of Greenhouse Gas Emission Reduction’ (2008) 33 Vermont Law Review 201; Samuel Fankhauser, Caterina Gennaioli and Murray Collins, ‘Do International Factors Influence the Passage of Climate Change Legislation?’ (2016) 16(3) Climate Policy 318; Samuel Fankhauser, Caterina Gennaioli and Murray Collins, ‘Domestic Dynamics and International Influence: What Explains the Passage of Climate Change Legislation?’ (2014) Centre for Climate Change Economics and Policy Working Paper 156; Samuel Fankhauser, Caterina Gennaioli and Murray Collins, ‘The Political Economy of Passing Climate Change Legislation: Evidence from a Survey’ (2015) 35 Global Environmental Change 52; David Feldman, ‘Legislation Which Bears No Law’ (2016) 37(3) Statute Law Review 212; Steen Gade, Clever Climate Legislation: A Hands-On Guide for Parliamentarians to Achieve the Paris-Agreement (Nordic Council 2017); Janelle Knox-Hayes, ‘Negotiating Climate Legislation: Policy Path Dependence and Coalition Stabilization’ (2012) 6(4) Regulation & Governance 545; Michal Nachmany and others, The 2015 Global Climate Legislation Study: A Review of Climate Change Legislation in 99 Countries, Summary for Policy-Makers (Grantham Research Institute, GLOBE, IPU 2015); Michal Nachmany, Samuel Fankhauser and Joana Setzer, ‘Global Trends in Climate Change Legislation and Litigation’ (Grantham Research Institute on Climate Change and the Environment, May 2017); Navroz K Dubash and others ‘Developments in National Climate Change Mitigation Legislation and Strategy’ (2013) 13(6) Climate Policy 649; Marjan Peeters, Mark Stallworthy and Javier de Cendra de Larragán (eds), Climate Law in EU Member States: Towards National Legislation for Climate Protection (Edward Elgar 2012); Jim Rossi, ‘The Political Economy of Energy and Its Implications for Climate Change Legislation’ (2009) 84 Tulane Law Review 379; Terry Townshend and Adam C Matthews, National Climate Change Legislation: The Key to More Ambitious International Agreements (CDKN/Globe International 2013); Terry Townshend and others, ‘How National Legislation Can Help to Solve Climate Change’ (2013) 3(5) Nature Climate Change 430; and see also the additional studies referred to throughout this paper.

2 Thomas L. Muinzer (ed), National Climate Change Acts: The Emergence, Form and Nature of National Framework Climate Legislation (Bloomsbury/Hart 2020). The contributing team includes Alina Averchenkova, Ralph Bodle, Lord Carnwath, Matthias Duwe, Kristina Forsbacka, Andrew Jackson, Richard Macrory, Thomas L Muinzer, Sarah Louise Nash, Sofie Oosterhuis, Åsa Romson, Otto Spijkers and Prue Taylor.

3 Roger G Barry and Eileen A Hall-McKim, Essentials of the Earth’s Climate System (Cambridge University Press 2014).

4 ch 5, ‘Global Warming: The Modern Warm Period’ in Wolfgang Behringer (ed), A Cultural History of Climate (Polity 2010).

5 Samuel Fankhauser, ‘A Practitioner’s Guide to a Low-Carbon Economy: Lessons from the UK’ (2013) 13(3) Climate Policy 345.

6 European Union (Withdrawal Agreement) Act 2020 (UK).

7 Often informally called ‘Brexit’.

8 Climate Change Act 2008, c.27 (UK).

9 Sam Fankhauser, Alina Averchenkova and Jared J Finnegan, 10 Years of the UK Climate Change Act (Grantham Research Institute on Climate Change and the Environment), 19.

10 Thomas L Muinzer, Climate and Energy Governance for the UK Low Carbon Transition: The Climate Change Act 2008 (Palgrave 2019).

11 Substantial exploration of the UK Act and its interaction with legal-political processes and practices can be found in Neil Carter, ‘The Politics of Climate Change in the UK’ (2014) 5(3) Wiley Interdisciplinary Reviews: Climate Change 423; Ross Gillard and Kathryn Lock, ‘Blowing Policy Bubbles: Rethinking Emissions Targets and Low-Carbon Energy Policies in the UK’ (2017) 19(6) Journal of Environmental Policy & Planning 638; Matthew Lockwood, ‘The Political Sustainability of Climate Policy: The Case of the UK Climate Change Act’ (2013) 23(5) Global Environmental Change 1339; Irene Lorenzoni and David Benson, ‘Radical Institutional Change in Environmental Governance: Explaining the Origins of the UK Climate Change Act 2008 Through Discursive and Streams Perspectives’ (2014) 29 Global Environmental Change 10.

12 Terry Townshend and others, ‘Legislating Climate Change on a National Level’ (2011) 53(5) Environment: Science and Policy for Sustainable Development 5; Townshend and others, ‘How National Legislation Can Help to Solve Climate Change’ (n 1).

13 Abbie Clare, Sam Fankhauser and Caterina Gennaioli, ‘The National and International Drivers of Climate Change Legislation’ in Averchenkova, Fankhauser and Nachmany, Trends in Climate Change Legislation (n 1), 23.

14 Ibid, 30.

15 Ibid.

16 These aspects of climate change acts are explored in detail in Muinzer, National Climate Change Acts (n 2).

17 On this notion of broad flagship legislation that defines a country’s general approach to climate change, see further Fankhauser, Gennaioli and Collins, ‘The Political Economy of Passing Climate Change Legislation’ (n 1); Townshend and others, ‘How National Legislation Can Help to Solve Climate Change’ (n 1).

18 Fankhauser, Gennaioli and Collins, ‘The Political Economy of Passing Climate Change Legislation’ (n 1).

19 Rob van Gestel, ‘The Deparliamentarisation of Legislation: Framework Laws and the Primacy of the Legislature’ (2013) 9 Utrecht Law Review 106. For consideration of targets themselves in climate law, see Chris Hilson, ‘Hitting the Target? Analysing the Use of Targets in Climate Law’ (2020) Journal of Environmental Law (forthcoming at the time of writing).

20 Muinzer and Little express aspects of these characteristics underpinning the UK’s Climate Change Act as establishing a ‘skeleton framework that in turn creates capacities for action, regulation and innovation that serve to put substantive flesh on the bones’. Thomas L Muinzer and Gavin McLeod Little, ‘A Stocktake of Legal Research on the United Kingdom’s Climate Change Act: Present Understandings, Future Opportunities’ (2020) European Energy Law Report Volume XIII, at 431 (authors’ original emphasis).

21 Climate Change Authority Act 2011 (Australia).

22 Climate Change Response Act 2002 (New Zealand).

23 Climate Change Response (Zero Carbon) Amendment Act 2019 (New Zealand).

24 See further the discussion below at n 84.

25 Friends of the Earth, ‘What Has the UK Climate Law Achieved and Where Next?’ (Briefing Paper, 8 July 2018) https://friendsoftheearth.uk/climate-change/what-has-the-uk-climate-law-achieved accessed 14 December 2020.

26 Ibid.

27 Colin T Reid, ‘A New Sort of Duty? The Significance of “Outcome” Duties in the Climate Change and Child Poverty Acts’ (2012) Public Law 749.

28 Environment (Wales) Act 2016, pt 2, ‘Climate Change’.

29 What Has the UK Climate Law Achieved and Where Next? (n 25).

30 The author employs a hypothetical renewables obligation example here in order to draw a general point; however, numerous real-life examples abound. For instance, Germany’s Offshore Wind Energy Act 2017 (WindSeeG 2017) endeavours to expand offshore wind energy in Germany, in part due to climate change concerns, and could be described as a climate change act on these same grounds.

31 In the UK eg the Energy Act 2016, the Finance Act 2011, the Climate Change and Sustainable Energy Act 2006. The Energy Act 2013 in particular was enacted to implement sweeping elements of electricity market reform designed to achieve secure, affordable low-carbon energy.

32 In the UK, see eg the Finance Act 2000, which was set in place for non-climate related primary reasons but also introduced the Climate Change Levy, an important carbon tax levied on non-domestic energy bills that was part of the government’s climate strategy.

33 For a thought-provoking consideration of what the authors describe as direct/explicit and indirect/implicit climate laws, which they link in turn to broader analysis of ‘legal cultures’, see Eloise Scotford and Stephen Minas, ‘Probing the Hidden Depths of Climate Law: Analysing National Climate Change Legislation’ (2019) 28(1) Review of European, Comparative & International Environmental Law 67.

34 Thus, regarding the example just discussed, ‘Renewables Obligation Act’ is to be preferred as an official title over ‘climate change act’. The former title more suitably indicates the act’s legislative content, and avoids clashing with prevalent understandings of what a climate change act is most commonly understood to connote, namely legislation of a broader, framework-style character.

35 Averchenkova, Fankhauser and Nachmany, Trends in Climate Change Legislation (n 1).

36 Climate Change Laws of the World (online database), hosted by LSE, the Grantham Research Institute and the Sabin Center www.lse.ac.uk/GranthamInstitute/research-theme/governance-and-legislation accessed 14 December 2020.

37 Averchenkova, Fankhauser and Nachmany, Trends in Climate Change Legislation (n 1) at 1, emphasis added.

38 Ibid, 2, emphasis added.

39 Ibid, 14, emphasis added.

40 Isabella Neuweg and Alina Averchenkova, ‘Climate Change Legislation and Policy in China, the European Union, and the United States’ in Averchenkova, Fankhauser and Nachmany, Trends in Climate Change Legislation (n 1), 37.

41 Ibid, 37.

42 Brian Preston, ‘Rethinking Climate Change and the Law’, (2016) 39(4) UNSW Law Journal.

43 Elizabeth Fisher, Eloise Scotford and Emily Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80(2) The Modern Law Review 173.

44 Jacqueline Peel, ‘Issues in Climate Change Litigation’ (2011) 5(1) Carbon & Climate Law Review 15.

45 On the treatment of climate legislation more broadly in the literature, see above (n 1).

46 Muinzer, National Climate Change Acts (n 2).

47 On climate legislation in a general sense, see eg Nachmany and others, 2015 Global Climate Legislation Study (n 1).

48 Climate Change (Scotland) Act 2009 (an act of the devolved Scottish Parliament, in the UK).

49 Colin T Reid, ‘Climate Law in the United Kingdom’ in Erkki J Hollo, Kati Kulovesi and Michael Mehling (eds), Climate Change and the Law (Springer 2013), 537.

50 eg stating that ‘This study will refer frequently to the Renewables Obligation Act as a “climate change act”’ says a good deal about how language internal to the study is being used, but it says little to nothing about the technical nature of climate change acts themselves, nor indeed, without further qualification, about the renewables obligation act at issue. Thus, it is not a particularly useful device for enhancing knowledge.

51 Andrew P Johnson, Academic Writing: Process and Product (Rowman & Littlefield 2016), pt II (‘Some Particulars of Academic Writing’).

52 The definition devised in this paper will be applied in the first book-length study of national climate change acts, which includes contributions from a range of leading climate and energy authorities from around the world. Muinzer, National Climate Change Acts (n 2) (forthcoming at the time of writing).

53 Townshend and others, ‘How National Legislation Can Help to Solve Climate Change’ (n 1).

54 Targeted exploration of the Mexican regime can be found in Israel Solorio Sandoval, ‘Leader on Paper, Laggard in Practice: Limited Climate Policy Integration and the Functioning of the Mexican Climate Change Act’, forthcoming (at the time of writing) in a special issue of the journal Climate Policy scheduled for release in 2020, entitled ‘Climate Change Acts: Origins, Dynamics and Consequences’.

55 The French ‘Grenelle I Law’ and ‘Grenelle II Law’ indicated here establish France’s flagship environmental framework, and include climate change matters.

56 Fankhauser, Gennaioli and Collins, ‘Do International Factors Influence the Passage of Climate Change Legislation?’ (n 1), 322.

57 Ibid.

58 Muinzer (n 10), Climate and Energy Governance for the UK, ch 3.

59 Sarah Louise Nash and Reinhard Steurer, ‘Taking Stock of Climate Change Acts in Europe: Living Policy Processes or Symbolic Gestures?’ (2019) 19(8) Climate Policy 1052.

60 Ibid, 1053.

61 Debussy, quoted in Katarzyna Dudek, Vanishing Voices: Silence(s) in the Poetry of Gerard Manly Hopkins, T.S. Eliot and R.S. Thomas (Cambridge Scholars Publishing 2019), 203.

62 Nash and Steurer, ‘Taking Stock of Climate Change Acts in Europe’ (n 59) 1053.

63 See generally ibid.

64 Ibid, 1053.

65 On the subject of mitigation–adaptation components in climate change acts, see further Thomas L Muinzer, ‘Conceptualising and Formulating National Climate Change Acts’, ch 10 in Muinzer, National Climate Change Acts (n 2).

66 The work of Nash and Steurer itself does not neglect adaptation, with the authors quoting Nachmany and others, 2015 Global Climate Legislation Study (n 1), 17 to emphasise that their approach ‘allows us to concentrate on a very particular type of legislation: CCAs “as a comprehensive, unifying basis for climate change policy, addressing multiple aspects and issues of climate change mitigation or adaptation (or both) in a holistic, overarching manner”’. Nash and Steurer, ‘Taking Stock of Climate Change Acts in Europe’ (n 59) 1053.

67 Present-stage forms of action might be comparatively minute, given the general longer term framework orientation of these acts, eg section 76 of the UK’s Climate Change Act 2008 adjusted a modest aspect of waste collection in England and Wales.

68 See eg Calabro and others, who have unpacked the Climate Change Act 2017 passed in the Australian state of Victoria, exposing in the process how its components have been strongly informed by the substance of the Paris Agreement: Alainnah Calabro, Stephanie Niall and Anna Skarbek, ‘The Victorian Climate Change Act: A Model’ (2018) 92(10) Australian Law Journal 814. Detailed analysis of the rich substate governance experience in Germany can be found in Kristine Kern and others, ‘Climate Change Acts on the Move: Drivers and Limits of Horizontal and Vertical Interaction and Diffusion in the German Federal System’, forthcoming (at the time of writing) in a special issue of the journal Climate Policy scheduled for release in 2020, entitled ‘Climate Change Acts: Origins, Dynamics and Consequences’.

69 Reid, ‘A New Sort of Duty?’ (n 27); Nicola McEwen and Elizabeth Bomberg, ‘Sub-State Climate Pioneers: The Case of Scotland’ (2014) 21(1) Regional & Federal Studies 63.

70 Note, however, that sub-state entities will no doubt be engaged by national legislation falling within the working definition below in most if not all cases, in spite of the fact that the definition itself places its definitional emphasis on the national dimension inherent in climate change acts of national parliaments and assemblies.

71 Author’s definition.

72 Author’s qualification.

73 Although in relation to the EU, it is notable at the time of writing that Brexit – Britain’s exit from the EU – will shortly take full effect in the UK.

74 Richard Macrory and Thomas L Muinzer, ‘The United Kingdom’s Climate Change Act’, ch 3 in Muinzer, National Climate Change Acts (n 2). Of course, the analysis above discusses transpositional issues merely on point of general principle. If, for instance, a few largely incidental sections of a much broader ‘climate change act’ that has been constructed in the nationally oriented manner just outlined did happen to transpose some minor elements of eg European Union law into the domestic legal order, such modest deviations from the broader point of principle outlined above would be unlikely to be sufficient to fundamentally exclude the act from the general definitional parameters indicated above.

75 Muinzer, National Climate Change Acts (n 2).

76 A point stressed by Averchenkova and others, who provide a valuable examination of aspects of the UK’s Committee on Climate Change, which was established well over a decade ago by the Climate Change Act 2008 (sections 32–43 and Schedule 1); see Alina Averchenkova and others, ‘The Role of Independent Bodies in Climate Governance: The Case Study of the UK’s Committee on Climate Change’, forthcoming (at the time of writing) in a special issue of the journal Climate Policy scheduled for release in 2020, entitled ‘Climate Change Acts: Origins, Dynamics and Consequences’.

77 Robert Falkner (ed), The Handbook of Global Climate and Environment Policy (Wiley-Blackwell 2016).

78 Barry G. Rabe, ‘Second-Generation Climate Policies: Proliferation, Diffusion, and Regionalization’ in Henrik Selin and Stacy D VanDeveer (eds), Changing Climates in North American Politics: Institutions, Policymaking, and Multilevel Governance (MIT Press 2009), 72.

79 Author’s definition.

80 Muinzer, National Climate Change Acts (n 2), ch 10; Nash and Steurer, ‘Taking Stock of Climate Change Acts in Europe’ (n 59); ‘The Content of the Act’ in Muinzer, Climate and Energy Governance for the UK (n 10).

81 The Mexican Parliament amended the Mexican Climate Change Act (entitled the General Law on Climate Change 2012) significantly in 2018, in partial response to changes in the direction of international policy agreed under the terms of the Paris Agreement 2015. While the amendments are important, it may be unlikely that they have ‘fundamentally altered the substance’ of the act to the satisfaction of the point 2 second-generation criteria above, due in part to significant amendments targeting the act’s transitory articles rather than its primary articles. In the Mexican legal tradition, transitory articles of this sort do not form part of the primary act. On the Mexican amendments, see: Carlos Del Razo, ‘Amendment to the General Law on Climate Change and Its Implications in the Markets’ (Lexology, 24 July 2018) www.lexology.com/library/detail.aspx?g=381e50d1-23bd-4feb-a6a9-c713c6b4215e accessed 14 December 2020. On transitory articles, see Alina Averchenkova and Sandra L Guzman Luna, Mexico’s General Law on Climate Change: Key Achievements and Challenges Ahead (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science 2018).

82 On current Irish developments, see further Sadhbh O’Neill and Diarmuid Torney, ‘Going Back to the Drawing Board: The Revision of Ireland’s 2015 Climate Law’ forthcoming (at the time of writing) in a special issue of the journal Climate Policy scheduled for release in 2020, entitled ‘Climate Change Acts: Origins, Dynamics and Consequences’. For background to the development of the Irish Climate Change Act and analysis of its implementation, see Diarmuid Torney, ‘If at First You Don’t Succeed: The Development of Climate Change Legislation in Ireland’ (2017) 32(2) Irish Political Studies 247; Diarmuid Torney, ‘Climate Laws in Small European States: Symbolic Legislation and Limits of Diffusion in Ireland and Finland’ (2019) 28(6) Environmental Politics 1124.

83 On contemporary Danish developments, see Sarah Louise Nash and Reinhard Steurer, ‘Deliberative Democracy and the Development of Climate Change Acts: A Comparative Study of Legislative Processes in Scotland, Austria, Denmark and Sweden’, forthcoming (at the time of writing) in a special issue of the journal Climate Policy scheduled for release in 2020, entitled ‘Climate Change Acts: Origins, Dynamics and Consequences’.

84 In relation to the consideration of first- and second-generation climate change acts outlined here, it is notable that New Zealand’s national parliament is remarkable for being the only national parliament at the time of writing (so far as the author can detect) to have constructed a major first-generation climate change act by amending a less extensive pre-existing legislative regime. See further the Climate Change Response Act 2002, and amendments applied to it by the Climate Change Response (Zero Carbon) Amendment Act 2019.

85 Averchenkova, Fankhauser and Nachmany, Trends in Climate Change Legislation (n 1), pt II (covering ch 5–7), ‘What Climate Change Legislation Should Contain’.

86 Alex Bowen and Sam Fankhauser, ‘Good Practice in Low-Carbon Policy’ in Averchenkova, Fankhauser and Nachmany, Trends in Climate Change Legislation (n 1) 123.

87 Ibid, 123, emphasis added.

88 Ibid, 123.

Additional information

Notes on contributors

Thomas L Muinzer

Co-Director, Aberdeen University Centre for Energy Law, and Senior Lecturer in Energy Transition Law, Aberdeen University Centre for Energy Law, King’s College, Taylor Building, Aberdeen AB24 3UB, Scotland, United Kingdom. Email: [email protected]