Trends in Long-term Climate Laws

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In this post Anusha Witt (University of Sussex LLM Environmental Law alumna) discusses the emergence of long-term climate governance frameworks from jurisdictions across the globe which are often the locus for net-zero by 2050 commitments. She points to the evolution of net-zero by 2050 as a legal norm, and poses the question: are we reaching a tipping point where net-zero is becoming the accepted standard for climate law?

               

Introduction

For decades the scientific community have sought to highlight that greenhouse gases (GhG) in the atmosphere as a result of human activity is leading to dangerous levels of warming. We have already reached 1°C and alarmingly climate scientists predict that we will reach 1.5°C between 2026 and 2040. To address this, we need to reduce GhG emissions to zero.

The Paris Agreement provides an international framework to respond to this, it calls on Parties to pursue efforts to limit warming to 1.5°C and sets a target achieve this by balancing emissions and removal of GhG from the atmosphere by the second half of this century – frequently interpreted to mean net-zero by 2050.

Given the non-binding nature of international climate law, domestic law provides a critical role in facilitating a transition to a low GhG economy. Long-term climate governance frameworks with similar key features have emerged from jurisdictions across the globe and are often the locus for net-zero by 2050 commitments. They play a critical function by putting a legal duty on States to manage the transition to a low GhG economy. Pointing to the evolution of net-zero by 2050 as a legal norm, this article poses the question: are we reaching a tipping point where net-zero is becoming the accepted standard for climate law?

This question is particularly pertinent given how rapidly climate law is developing, the statistics are compelling, the number of climate change laws in major economies has grown from 40 in 1997 to almost 500 at the end of 2013. The likelihood of climate law being enacted increases with the amount of climate laws passed elsewhere. Knowing this trend this article aims to raise some thought-provoking questions on the governance frameworks we are seeing the commitment to net-zero nested in.

 

UK Climate Change Act

The United Kingdom (UK) became the architect of long-term climate governance frameworks, in 2008, when it enacted its Climate Change Act (UK CCA), aimed at crafting steady but ambitious economy wide decarbonisation, whilst allowing for flexibility. Policymakers are not restricted to making reductions in specified sectors, instead they have the flexibility to choose the most cost-effective path to emissions reductions.

Several features within the CCA combine to form a governance framework, including:

  • a legally binding long-term, scientifically informed greenhouse gas (GhG) emissions reduction target (recently updated to net-zero by 2050) and a mid-term 2020 target;
  • a system of ‘carbon budgeting’;
  • an independent expert advisory panel called the Climate Change Committee (CCC);
  • regular reporting and monitoring requirements facilitate compliance.

The carbon budgets are consecutive, and each cover a period of five years with the CCC advising on the limit for GhG emissions for each budget eleven years in advance. This creates a system of policy back casting, whereby policy decisions that are made today (to remain within the carbon budget) are consistent with reaching the long-term target. With each budget more ambitious than the last, the intention of the governance framework is to allow policymakers to chart a steady but progressive course towards the long-term target.

 

Other long-term climate governance frameworks

Since the advent of the UK CCA a proliferation of long-term climate governance frameworks with similar features to the CCA have been enacted in other jurisdictions. Notable examples include: France, Norway, Finland, Ireland, Sweden, Mexico, The Netherlands, Denmark and New Zealand, who have all enacted long-term climate governance legalisation with similar features to the CCA, while Spain, Australia, South Africa and Malaysia (among others) are in the process of developing similar legislation.

 

Comparing national frameworks

Climate Laws in Europe: Good Practices in net-zero management’, provides a comprehensive and up-to-date global picture of this rapidly evolving landscape. As the authors remind us ‘no two climate laws are the same, the frameworks tend to draw on a set of common elements, such as targets, planning, measures, monitoring, public participation and scientific advisory bodies.’

Each of these instruments have a long-term target, however the picture is varied. For the UK, France, Denmark and New Zealand, the target is net-zero by 2050. Both Sweden and Finland are even more ambitious having legislated for net-zero by 2045 and 2035 respectively. Whilst the draft laws in Spain and Australia both have net-zero commitments. Each of these instruments also have their own unique aspects.

Sweden’s Act adds fiscal responsibility to its governance framework through provisions to align climate policies and budgetary decisions and a climate report to be presented with the yearly budget bill.

Australia, with its high susceptibility to climate impacts, requires a climate change risk assessment to assess the current and future effects of climate change on the economy, society, agriculture, environment, and ecology, to identify the most significant risks based on their severity and to assess the need for a coordinated response. The assessment is to be carried out once every five years. The recent catastrophic bush fires serve as a reminder of why this provision is important for the safety of society and the economy. In Australia there was widespread public outrage that leaders in emergency services had repeatedly raised concerns that the bush fire season was bound to be far more severe than usual due to prolonged drought. However, these risk warnings were largely ignored. Assessing the need for a coordinated response to future risks is particularly pertinent given Australia’s federal system of government with different structures for emergency services across States and Territories. Given the transboundary nature of climate change, assessing the need for a coordinated response to climate induced risks seems particularly pertinent and has been a key ask of government in the aftermath of the fires.

The French ‘Energy Transition Law’ stemmed from a public debate around concerns with nuclear energy and has a strong provision for public consultation. The intent is to enable citizens to be key drivers of the transition. The importance of this cannot be underestimated, in France, we have seen citizens making their voices heard loudly and violently through the des gilets jaunes (yellow vest movement). The movement originated from concerns about rising fuel costs due to a fuel tax aimed at emissions reductions. The experience of France illustrates the importance in increasing public awareness of the reasons why transitioning is critical, ensuring the transition is inclusive and that all sectors of society (particular high emitting sectors and those already economically vulnerable) are included in decision making and planning. Ireland also has a social dimension to its Climate Action and Low Carbon Development Act 2015, which includes the concept of a just transition.

Both public participation and strong mechanisms to ensure a just transition are critical, particularly, given the current COVID-19 crisis. The global economic impact of COVID-19 remains to be seen, but it is clear it will exacerbate existing societal inequalities and it is from this shaky ground that we will need to craft economy wide decarbonisation.

 

International Climate Governance Frameworks

The EU framework

Recently, the European Union published its proposal for a Climate Law with a net-zero by 2050 commitment. The significance of the EU announcing its commitment to net-zero by 2050 cannot be understated, the EU are supporting the momentum behind net-zero and raising the bar of ambition globally before COP 26 (the 26th Conference of the Parties to be attended by countries that signed the United Nations Framework Convention on Climate Change – which the Paris Agreement complements and falls under). The EU has also adopted a long-term governance framework with similar key features to the aforementioned national climate laws and within which its net-zero commitment lies. The European Commission has extensive reporting and monitoring requirements one of which is to report on progress to the European Parliament, within six months of the global stocktake required under the Paris Agreement. Creating an additional layer of accountability in that poor performance may be seen as a reputational risk for the EU’s leadership image and reinforcing the legitimacy of the Paris Agreement by timing EU domestic decisions to international mechanisms. Interestingly, the EU adds another dimension to the framework by complementing it with the European Green Deal which adds an economic package to accompany the framework and support a just transition.

 

Paris Agreement

The Paris Agreement illustrates that borrowing of legal concepts between jurisdictions is not confined to horizontal diffusion between national jurisdictions, but we can also identify vertical diffusion between international law and national law.

The Paris Agreement exhibits similar features to the aforementioned climate governance frameworks:

  • It has a long-term goal (to keep the global temperature increase to well below 2°C and pursue efforts to keep it to 1.5°C) and encourages long-term action by calling on countries to produce long-term low GhG emission strategies by 2020.
  • It places an obligation on Parties to submit Nationally Determined Contributions (NDC), every five years in which Parties detail their GhG emissions reductions targets to contribute to meeting the temperature target. Like the UK CCA carbon budgets, Parties are expected to rachet up ambition with each NDC.
  • Lastly, the Paris Agreement is flexible in that it does not prescribe how nation states need to reach the long-term goal they are free to choose the most appropriate path for their context.

Whilst there are many factors that influenced the architecture of the Paris Agreement, there appear to be some clear similarities between long-term governance frameworks and the Agreement. If COP 26 goes ahead this year it will be a critical year for the Paris Agreement. We are five years on from its initial signing, countries’ initial pledges to meeting the temperature goal will be reviewed and countries are expected to raise the ambition of their NDCs.

 

Net-zero by 2050

An increasingly common feature of long-term climate governance frameworks is the provision for net-zero by 2050. Article 4.1 of the Paris Agreement is frequently interpreted as an objective to achieve net-zero emissions globally by 2050. Whilst, its legal root can be found in the Paris Agreement, it is no surprise net-zero  found its way into the agreement – it was conceived and documented by influential people in the world of climate diplomacy well before the negotiations began.

Despite this, the net-zero provision ended up being somewhat hidden in the Paris Agreement. Hidden, because it was one of the components Small Island States (among other proponents) had to compromise on in the negotiations. Instead of appearing explicitly as a net-zero by 2050 commitment it is phrased much more loosely:

‘In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.’

The interpretation of this article as a net-zero commitment is explained by Matthias Duwe:

‘Article 4.1 specifies that this goal requires a global emissions trajectory that starts with a “global peaking of greenhouse gas emissions as soon as possible”, followed by “rapid reductions”. This should lead to “a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century”, which can be interpreted to specify global carbon neutrality after 2050.’

There is widespread momentum behind net-zero from numerous civil society actors, who are pushing countries to adopt the commitment. It’s not just countries that are adopting net-zero –  states, cities, sports teams, even fossil fuel companies are taking up the challenge, with BP recently announcing that it has committed to reaching net-zero by 2050. Which invites the question: what does net-zero actually mean?

 

What does net-zero by 2050 mean in practice?

Net-zero by 2050 means that all GhG (that a country chooses to include in their target) are reduced by at least 100% of the level they emitted in the year or base period (the average over several years) they choose as their baseline. If the country still emits GhG after 2050 they need to find a way of offsetting those emissions so that they are stored (for example through carbon sinks) and are not released into the atmosphere. As Josh Burke explains, ‘In contrast to a gross-zero target, which would reduce emissions from all sources uniformly to zero, a net-zero emissions target is more realistic because it allows for some residual emissions.’

Different actors have adopted different interpretations of net-zero, for example the UK’s net-zero target currently excludes emissions from the UK’s share of international aviation and shipping. New Zealand includes all greenhouse gases except biogenic methane. Many actors allow for net-zero targets to be met through the purchase of carbon credits from abroad – which is not without controversy.

 

Conclusion: the future of long-term climate laws

It is clear that legal ideas travel between jurisdictions. Finnemore and Sikkink describe a process where norms reach a ‘tipping point’ in which a critical number of key States adopt the norm and it becomes the accepted standard. Is net-zero by 2050 becoming the accepted standard of climate laws?

Finnemore and Sikkink also explain that before a norm becomes the accepted standard some States may adopt it for purely strategic reasons, perhaps in this case to be seen to be acting on climate change. They stress that once the tipping point is reached it becomes the benchmark through which actions are evaluated and justified.

Civil society actors are celebrating long-term climate governance frameworks (with a certain level of ambition) as ‘Paris Compatible’ and therefore in line with international law. Whilst it is clear that long-term climate laws play a critical function by putting a legal duty on States to manage the transition to a low GhG economy, as we have seen it depends on how the State choose to interpret net-zero. Even if all States adopted the net-zero target (and met it) it may not necessarily mean that warming stays below 2 degrees. Indeed, civil society groups are advocating that net-zero will need to be achieved earlier than 2050 to avoid the worst impacts of climate change and are placing increasing pressure on governments to accelerate action.