Net Zero and the Law
On September 20th, 2023, UK prime minister Rishi Sunak announced changes to the UK’s policies described as a ‘watering-down’ in a Guardian article (Horton, 2023). The date of the proposed ban on the sale of new combustion engine cars was changed from 2030 to 2035; the plan for a complete phase-out of gas boiler installations by 2035 was changed to a reduction by 80%; plans to fine landlords who failed to upgrade their properties to a certain level of energy efficiency were dropped; and the prime minister confirmed that his party would not take forward policies “such as taxing airlines properly and informing the public of the carbon footprint of meat”.
On April 18th, 2024,
Scotland’s Net Zero Secretary Mairi McAllen stated that Scotland’s 2030 climate
change target could not be met, though its 2045 target remained. Fankhauser
(2024) pointed out that the 2030 target of a 75% reduction in greenhouse gas
emissions relative to 1990 had been set in law in the Emissions Reduction
Targets Act of 2019. The UK Climate Change Act also contains a legally binding
long-term goal to reduce the UK’s net emissions of greenhouse gases to zero in
2050 (CCC, 2020).
Horton and Fankhauser both discuss a
range of undesirable consequences which could follow a relaxation of action on climate change; a report by Fankhauser, Averchenkova
and Finnegan (2018) “summarises lessons … on how climate change legislation is
best structured to be effective.” This post will concentrate on legislation and the legal consequences of breaking
laws on emissions reduction, rather than on environmental consequences.
The World
Bank (2020) provides a guide to climate change legislation. The Guide lists
twelve elements needed to assess climate laws, beginning with setting long term
targets (such as net zero emissions by 2050) and ending with parliamentary
oversight of executive actions and inactions. Countries which have set in law
net zero targets for 2050 or earlier include Denmark, France, Germany, Norway,
Sweden, and the UK. A requirement for five-year risk assessments and adaptation
plans is included in UK law, and France has legislation on mandatory reporting of
climate change issues. Independent expert advice is a legal requirement in
Ireland, Mexico, France, and the UK, where it is provided by the Climate Change
Committee. Parliamentary oversight is a legal requirement in Colombia and in
the UK, where the secretary of state is required to report to Parliament on
emissions annually.
The relaxation of climate change policy
in the UK will no doubt be noted in other countries, and there is
understandable concern that some may be encouraged to follow the UK’s example.
Actions already taken to hold
governments to their declared targets illustrate some of the possible methods. Gayle
(2022) reported a high court order requiring the UK government “to outline
exactly how its net zero policies will achieve emissions targets”, following a
legal challenge from the environmental groups Friends of the Earth, ClientEarth
and the Good Law Project. Mr Justice Holgate regarded the lack of explanation
or quantification in the government’s plans on meeting its emissions target as amounting
to a failure to meet its obligations under the Climate Change Act of 2008. The
Department for Business, Energy and Industrial Strategy was ordered to “prepare
a report explaining how the policies outlined in the net zero strategy would
contribute towards emissions reductions, and to present it to parliament by
April 2023.” In February 2024 UK ministers were “facing court for a second time
over plans to meet legally binding climate targets, after environmental groups
branded revised measures “a complete pipe dream”” (Gayle, 2024).
In July 2023 the United Nations
Environment Program released a report finding that “climate litigation is
emerging as a key driver of concrete action being taken by governments and
corporations—forcing them to commit to emissions cuts and take accountability
for harming the planet” (Conley, 2023). The Global Climate Litigation Report:
2023 Status Review, was compiled jointly by UNEP and Columbia University (UNEP, 2023). It claimed that 2,280 climate cases were
brought to court in 2022 (against both governments and the private sector), and
UNEP’s executive director described litigation as “a key mechanism for securing
climate action and promoting climate justice.” Conley cited examples including
rulings by the Supreme Courts in Mexico and Brazil and by the European Court of
Human Rights.
In 2020 the Mexico's Supreme Court
ruled against increasing the ethanol content in fuel, arguing that regulators had
exceeded their authority (Reuters, 2020). The 2022 ruling in the Brazilian case
was that the Paris Agreement adopted internationally in 2015 is a human rights
treaty that must take precedence over national laws (Bennett,
2022). The case was filed by four political parties “after the government
failed to distribute money from the national Climate Fund”. The “supranational
status” treaties on environmental law meant that there was “no legally valid
option to simply omit to combat climate change.” Schonhardt (2024) reported the
finding of the European Court of Human Rights in Strasbourg that “climate
change is a human rights issue”. It concluded that the government of Switzerland
was “violating the rights of a group of senior women by failing to seriously
address the climate crisis.” Legal scholars say that the ruling could open the
way for future climate cases to be brought before the court, and “could
influence other prominent tribunals, including the International Court of
Justice” when considering the legal obligations of other countries regarding climate
change. While the United States is not directly impacted by the ruling, similar
legal strategies used outside Europe might lead to the adoption of stronger
measures to combat climate change in the U.S.
Commenting on the ECHR ruling in
Politico, Di Sario (2024) described the Court’s decision as “definition-shifting”
and claimed that “nearly 50 governments representing almost 700 million people”
could face ligation over their failures to act on climate change. She quoted a
legal specialist from a U.S.-based nonprofit organisation that promotes climate
activism as describing the verdict “as a blueprint for how to successfully sue
your own government over climate failures”. The rulings of the ECHR are binding
on the 46 members of the Council of Europe, and its judgment
on Switzerland included “specifics about what steps governments must take to
comply with their new climate-related human rights obligations.” These included
deadlines, pathways for action and the provision of evidence. The outcome of
the Swiss case is expected to expand the legal concept of who can be considered
a victim of climate harm, and who can be held responsible. Similar cases are at
present proceeding through The International Court of Justice, the
International Tribunal for the Law of the Sea and the Inter-American Court of
Human Rights and are likely to “clarify the legal obligations of states to
protect rights in the context of climate change.”
References
Bennett, P.,
2022, Brazil’s Supreme Court Rules Paris Agreement Is a Human Rights Treaty,
Ecowatch, 8 July, 2022, online, accessed 25 April 2024
https://www.ecowatch.com/brazil-supreme-court-paris-agreement-human-rights.html
CCC, 2020, The
UK's Net Zero target, CCC Insights Briefing 3, Climate Change Committee, online, accessed 24 April 2024
Conley, J., 2023,
Climate Lawsuits Are Becoming Key Drivers of Change as Courts Tie Policy to
Human Rights, Common Dreams, 27 July 2023, online, accessed 24 April 2024
https://www.commondreams.org/news/climate-lawsuits-driving-change
Di Sario,
F., 2024, Climate protection is now a human right — and lawsuits will follow,
Politico, 9 April 2024, online, accessed 24 April 2024
Fankhauser,
S., 2024, Scotland is ditching its flagship 2030 climate goal – why legally
binding targets really matter, The Conversation, 18 April 2024, online,
accessed 24 April 2024
https://www.lse.ac.uk/GranthamInstitute/publication/10-years-climate-change-act/
Gayle, D., 2022, Court orders UK government to explain how net zero policies
will reach targets, The Guardian, 18 June 2022, online,
accessed 25 April 2024
Gayle, D.,
2024, UK ministers in court again over net zero plans, The Guardian, 20
February 2024, online, accessed 25 April 2024
https://www.theguardian.com/environment/2024/feb/20/uk-ministers-in-court-again-over-net-zero-plans
Horton, H., 2023,
UK net zero policies: what has Sunak scrapped and what do changes mean? The
Guardian, 20 September 2023, online, accessed 24 April
2024.
https://www.theguardian.com/politics/2023/sep/20/uk-net-zero-policies-scrapped-what-do-changes-mean
Reuters,
2020, Mexico's Supreme Court rules against hiking ethanol fuel content,
Reuters, 16 January 2020, online, accessed 26 April 2024.
Schonhardt,
S., 2024, Climate Action Is a Legal Obligation, European Court Rules, 10 April
2024, Scientific American, online, accessed 26 April 2024
UNEP, 2023, Global
Climate Litigation Report: 2023 Status Review, United Nations Environment
Programme, online, accessed 25 April 2024
World Bank
(2020) World Bank Reference Guide to Climate Change Framework Legislation, online,
accessed 24 April 2024
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