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.

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