Legislating Against Climate Change: A UK Perspective on a Sisyphean Challenge
| Date | 01 May 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00752.x |
| Published date | 01 May 2009 |
| Author | Mark Stallworthy |
LEGISLATION
Leg islat ing Agai nst Clim ate Chan ge: A U K Per spec tive on
a Sisyphean Challenge
Mark Stallworthy
n
The UK’s Climate Cha ngeAct o¡ers a frameworkfor civil society to achieve‘low carbon’realign-
ment through to 2050. TheAct is reviewed for its coherence as a mechanism for directing future
policy.The legislation establishes a carbon budgetary process, mandates greenhouse gasreduction
targets and strategies, and imposes a novel range of duties supported by processes for ensuring
transparencyconcerni ng progress. Following an overviewof climate change risks and likely eco-
nomic consequences, the analysis identi¢es selected regulatory strategies. It explores the main
statutory features, with an emphasis upon the implications of imposing mandatory duties on
decision makers. An evaluationof the key policy choice of emissions trading is informed byper-
spectives of environmental justice, in particular as to questions of equitable burden-sharing in
relation to impacts ofcl imatechange and related policies. A concluding section summarises rea-
sonable expectations and ongoing challenges.
INTRODUCTION
The primarypurpose of the Climate ChangeAct 2008 is to realignboth economy
and civil society in the UK onto a low carbon trajectory. This is to be addressed
mainly through measures prod ucing emissions reductions or other wise removing
greenhouse gases (in particular carbon dioxide, CO2) from the atmosphere.
1
The
legislation mandates policy making in response to climate change in accordance
with de¢ned goals. Thus described, the task it is sought to address by legal means
would appear to justify the Sis yphus analogy.
2
Atthemeasure’scoreliesabinding
regime for establishing reductions targets, to operate in stages, leading towards a
2050 achievement of its ¢nal emissions goal.This is supported by a duty-based
framework, as follows: transposing objectives into a process of periodic carbon
budget-setting; public reporting and scrutiny concerning levels of progress; and
supporting ins titutional reform. Policy content ^ that is, building on such limited
progress as there has been to date,
3
the means by which legislative goals are to be
met ^ remains largely inchoate, anticipated to emerge in accord with selected
budgetaryand delivery timelines.
n
Professor of EnvironmentalLaw, Schoolof Law, Swansea University, UK
1 CO2 is by far the most prevalent: in 2005 around 85 per cent of totalUK greenhouse emissions:
http://www.defra.gov.uk/environment/statistics/globatmos/gagccukem.htm (last visited Febru-
ary 2009).
2 Memorable for his unusual Underworld punishment of unending labour, rolling/re-rolling a
huge stone uphill without ever reaching the summit.
3 Discrete law-policy areas that impact speci¢cally on climate change are not considered: such as
process/design standards, energy e⁄cie ncies,‘green’taxation.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(3) 412^462
It is intended here to review the 2008 Act for its coherence as a mechanism for
directing future UK climate change policy. The analysis pursues three main
themes. First, by way of necessary background, there is an overview of develop-
ing understandings concerning the risks of climate change, and related economic
implications, outlining regulatory strategies pursued intothe enactment.The sec-
ond theme is an analysis of the key statutory features, to includea pivotal explora-
tion of the potential impact of the application of mandatory duties. Thirdly, there
is areviewofthepolicychoiceo¡eredasthecentrepieceoftheenactment,encap-
sulated within the idea of ‘cap-and-trade’. Addressing key legal features this will
be further informed by discussion of what is argued to be a precondition of the
scheme’s integrity and viability, namely the securing of equitable burden-sharing
as to impacts both of climate change per se and of policy responses to it. Such
questions of environmental justice have languished thus far as largely implicit in
climate debates, and their relevance will be considered in the speci¢c context of
emissions trading. A short concluding section will summarise ongoing chal-
lenges: as to what should reasonably be anticipated to follow in consequence of
the legislation and (as important) what perhaps should not.
CLIMATE THREATS AS CATALYST FOR LEGAL RESPONSE
The Act sets out an overarching legal structure forsecuring domestic responses to
the challenges of global warming. It is a statutory acknowledgement of the e¡ec-
tive scienti¢c consensus over unequivocal acceleration in the greenhouse e¡ect,
resulting mostly from increases in emissions, and preponderantly a consequence
of human activity.
4
This must be seen in light of signi¢cant ongoing uncertain-
ties,
5
taking into account complex interconnecting factors that include destabili-
sation of natural balancingmechanisms, suchas the greenhouse gas sink capacities
of oceans, permafrost, and rainforests. Warming impacts on weather patterns,
including from ocean acidi¢cation, and changes in surface and deepwater cur-
rents, variously contribute to increased deserti¢cation and drought, as well as
£ooding.
6
Such events combine to exacerbate positive feedback e¡ects from
changes to biological, geological and geomorphological processes within terres-
trial, marine andcryogenic ecosystems.
7
According to the IPCC the achievement
of a climate stabilisation at a 21C rise above pre-industrial levels would likely
require greenhouse gas atmospheric concentrations not to increase beyond 450
carbon dioxide equivalent (CO2e) parts per million (ppm).
8
Continuing
4 UN International Panel on Climate Change (IPCC) Fourth Assessment Report, Climate Change
2007 ^ The PhysicalScience Basis,WorkingGroup I (Cambridge: CambridgeUniversityPress, 2007).
5 M. Meinshausen, ‘What does a 21C Target mean for Greenhouse Gas Concentrations?’, in H.J.
Schellnhuber et al. (eds.), Avoiding DangerousClimate Change (Cambridge:Cambridge University
Press, 2006).
6 From sea level rise, and in traditionally temperateregions heightened storm frequency and inten-
sity.
7 Examples include receding polar ice caps, mountain glaciers,Green land and Antarcticice s heets.
8 Representing an aggregate greenhouse gas ¢gure on a CO2e basis; these gases were in the atmo-
sphere in the pre-industrial era (1750^1850) at 270 CO2e ppm, and nowstand at around 387: US
Mark Stallworthy
413
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(3) 412^462
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