UK: The Climate Change Act: Real Legal Bite?

Last Updated: 18 December 2008
Article by Michael Woods and Anita Lloyd

In late 2006 I wrote an article for the Times in which I stressed the importance of the new climate change bill having legal bite and binding targets, so that the government was held accountable and ministers faced penalties for failing to meet those targets.

Just over two years later we now have the Climate Change Act 2008 which received royal assent on 26 November 2008 after an eventful and lengthy progress through parliament. It has been hailed as groundbreaking, historic and even "world class" in setting binding greenhouse gas emissions reduction targets for the UK. But does it live up to expectations and does it really have that legal bite?

The Act is divided into five main parts dealing with:

Carbon target and budgeting

The Act introduces legally binding national targets for the reduction of carbon emissions by 26% below 1990 levels by 2020 and by 80% below 1990 levels by 2050. The targets include all greenhouse gases, not just carbon dioxide.

Responsibility for meeting the targets rests with the Secretary of State for Energy and Climate Change (SoS).

Five year carbon budgets must be published by the SoS setting out how the longer term targets will be met and again these are legally binding. They will set upper limits on the level of emissions that can be produced over each five year period. The first three of these carbon budgets (up to 2022) must be published before June 2009.

Emissions from domestic aviation and shipping are included in the target, but not emissions from international aviation and shipping. However the SoS must make regulations before the end of 2012 setting out circumstances in which such international emissions should be included (or report to parliament on why regulations have not been made!).

In a last minute amendment, the now Act states that there will be limits on the number of international carbon credits that can be used towards meeting the 2050 target, to ensure that domestic action is the primary focus. The limit for the 2008-2012 period must be set no later than 1 June 2009. This is a similar approach to that taken by the EU in respect of the EU Emissions Trading Scheme (EU ETS). UK entities covered by the EU ETS are is only able to use project credits from the Kyoto mechanisms (the clean development mechanisms and joint implementation) that equate to not more than 8% of their annual emissions although this permitted level of project credits can be banked between years of each EU ETS phase.

The Committee on Climate Change

This is an independent, expert body set up to advise the government on the pathway to the 2050 target.

The Committee was formally established on 1 December 2008 and its first task was to publish its advice to the government on the level of the three carbon budgets mentioned above, and its full review of the 2050 target.

The Committee's advice on the first three carbon budgets gives an intended budget reduction of 42% against 1990 levels in 2020 (the intended budget assumes a new global deal is done on climate change), and an interim budget reduction of 34% against 1990 levels in 2020 (which will be the target until a new global deal is reached).

The Committee must also report annually to parliament (the first report to be no later than 30 September 2009) on the UK's progress towards achieving its targets and budgets.

Trading schemes

The Act provides the legal basis for the carbon reduction commitment (CRC) which will be fleshed out by regulations expected in early 2009. It also gives the government general powers to introduce other new national emissions trading schemes.

Impact and adaptation to climate change

The SoS must submit risk assessments to parliament on the current and predicted impact of climate change. The first report must be no later than 26 January 2012, and then reports must be submitted at least every five years after that.

As soon as reasonably practicable after each of these report, the SoS must also lay programmes before parliament setting out objectives, proposals, policies and timescales for adapting to the impacts of climate change.

Responsibility for adaptation to climate change remains with DEFRA although the responsibility for mitigation (i.e. reducing the UK's annual emissions) has now moved to Department of Energy and Climate Change ("DECC").

Other provisions

These include provision for the making of waste reduction schemes (intended to provide householders with financial incentives to produce less waste and recycle more) and a charging scheme for single use carrier bags, as well enhancements to the operation of the renewable transport fuels obligation (RTFO).

Corporate reporting requirements will also be introduced. The SoS must by 6 April 2012 make regulations requiring companies to report on greenhouse gas emissions (or report to parliament on why such regulations have not been made). Guidance on how emissions should be measured and calculated must be published by 1 October 2009.

Next steps

The government intends to publish proposals for the levels of the first three carbon budgets alongside its main fiscal Budget in Spring 2009. These budgets must be enshrined in regulations by 1 June 2009.

In mid-2009 the government plans to publish policies and proposals to meet the first three carbon budgets. The Climate Change Committee will publish its first annual report in September 2009, and the government should respond to this in January 2010.

Comment

The Act sets out a number of legally binding and absolute obligations on the SoS and in that sense is a real leap forward in climate policy. However it is just a framework and the devil will be in the detail which has to be fleshed out by numerous regulations, reports and actions. No specific sanctions or penalties are stated to apply to the SoS if he fails to meet any of the deadlines and targets set out in the Act, so will the Act actually be enforced?

Of course groups such as Greenpeace and Friends of the Earth could mount a judicial review challenge if targets or deadlines are missed, and this is a tool they have been willing to use in the past. A potential weakness in the Act is that a number of its provisions already acknowledge that they may not be achieved (for example see above regarding inclusion of international aviation and shipping, and corporate reporting). Further, the Act also provides that in the SoS's final report in 2050, if the target has not been met this report must explain why not. A recent judicial review case in relation to fuel poverty brought by Friends of the Earth and Help the Aged indicates that the courts are already reluctant to allow judicial review of targets like these. It is therefore not clear that the targets really will be legally enforceable, particularly in light of the apparent anticipation by the Act itself that they may not be met.

The other way the Act is likely to be enforced is through political pressure and parliamentary scrutiny. It is likely that the failure to meet emissions reduction targets or adequately explain the reasons for climate change policy decisions will be the subject of a number of early day motions, and may even result in a vote of no confidence against a government that was failing to keep a grip on its carbon budget in the same way that it could for a financial budget.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions