Chapter 9 relates climate legislation, which is passed by parliaments, to climate litigation, which is pursued through the courts. Using data from 25 countries, the chapter documents how the judiciary is playing an increasingly active role in climate policy, both complementing and in some cases substituting for national legislation. The majority of climate litigation cases fall into one of three categories. In the first category, climate change is at the periphery of the argument. A second category of cases deals with administrative matters related to specific projects. Only in the third category are climate change concerns at the core of the case, and these cases divide equally into lawsuits oriented towards climate policies and legislation, information and disclosure, and loss and damage. Looking at the outcomes of litigation cases, the chapter finds that the courts have so far tended to enhance, rather than curtail, climate change regulation, confirming the important role of courts in regulating climate change.
Browse by title
Joana Setzer and Mook Bangalore
Chapter 5 discusses the ethical, political-philosophical and international-legal foundations of climate change legislation. Both climate change impacts and the mitigation of climate change affect human well-being in diverse and significant ways. Two political-philosophical frameworks – the liberal-egalitarian-inspired ‘climate justice’ framework and the utilitarian-inspired ‘economic efficiency’ framework – have dominated philosophical theorizing about how to trade-off these diverse well-being impacts in the context of climate change. International climate law borrows from both political-philosophical frameworks but ultimately constitutes a free-standing normative foundation. The chapter provides an overview and critical analysis of these various normative foundations and discusses their (limited) impact on domestic climate change legislation. It also highlights three nascent ‘movements’ at the cutting edge of climate politics and policy – anti-fossil-fuel movements, visions of green transformation, and transitional fairness/‘just transition’ claims – and discusses the alternative normative foundations on which these movements implicitly rest.
Abbie Clare, Sam Fankhauser and Caterina Gennaioli
Chapter 2 offers a statistical, top-down review of the key factors that explain the passage of climate change legislation. Successful climate legislation arises from the interplay of domestic and international factors. The chapter finds that a particularly important driver of climate action is the passage of framework laws, which codify the political consensus and create clarity about the future direction of climate policy. In most countries, there is broad agreement among political parties about the direction of travel. The chapter finds no significant difference in the legislative activities of left-wing and right-wing governments outside the Anglo-Saxon sphere. Climate laws are more likely to be passed by strong, unified governments, although in democracies they are unlikely to do so in an election year. Future climate policy is likely to be influenced by the pledges countries have made under the Paris Agreement, although the earlier Kyoto Protocol has had little impact on the number of climate laws passed, once other factors (such as national income) are controlled for.
Alina Averchenkova, Sam Fankhauser and Michal Nachmany
Chapter 1 offers an overview of the book and summarizes the state and trends in climate change legislation. Making use of a unique global database, Climate Change Laws of the World, the chapter identifies over 1,200 climate change laws and policies of similar stature in the 164 countries the data covers. This stock of laws is the result of over 20 years of policy making and speaks to the growing attention that legislators are devoting to climate change. In 1997, at the time the Kyoto Protocol was signed, there were only about 60 relevant laws and policies. Countries use different routes to address climate change. In some countries the primary avenue is acts of parliament, that is, formal laws passed by the legislative branch. In others, the policy direction is defined through executive orders, decrees and strategies. Climate change laws also differ in scope and ambition. Some laws are specifically focused on climate change, advancing explicitly emissions reduction or adaptation targets. Others introduce climate concerns into sector policies, such as those on energy, or broader development plans. Understanding these different approaches becomes increasingly important as countries implement their pledges under the Paris Agreement.
Alina Averchenkova and Michal Nachmany
Chapter 6 discusses the institutional arrangements for climate change policy. Climate action is complex and often controversial. It needs an institutional framework to legitimize, execute and scrutinize the targets and measures that have been put in place. Appropriate institutional arrangements will vary from country to country and depend on the political economy, institutional history and other local factors. Yet certain key functions are common to and important for any arrangement. The institutional framework needs to ensure policies are durable, legitimate and effective. This requires the clear delineation of responsibilities, including between national and sub-national actors, mechanisms for stakeholder engagement and an efficient state bureaucracy. It may also require the creation of new dedicated bodies, for example to set and scrutinize targets, to mobilize and channel climate finance and for monitoring, reporting, verification (MRV).
Alex Bowen and Sam Fankhauser
Chapter 7 reviews the policy measures required to reduce greenhouse gas emissions. They constitute the core content of climate change legislation. The starting point of the chapter is an understanding of the market, policy and behavioural failures that prevent private decision makers from adopting low-carbon solutions on their own accord. The chapter advocates carbon pricing as an effective way of incentivizing emission reductions, although command-and-control interventions are equally possible and have often been successful. Additional problems that need to be addressed include failures in capital markets, externalities related to low-carbon innovation, network issues and barriers preventing the uptake of energy efficiency measures. There are also policy distortions, not least the subsidization of fossil fuels and the underpricing of energy. The chapter further recommends interventions to mitigate the wider socioeconomic impacts of carbon policies, in particular their effect on competitiveness and fuel poverty. These measures do not directly reduce emissions, but they make climate change policy fairer, less disruptive and more acceptable to the public.
Ibon Galarraga, Elisa Sainz de Murieta and Joan França
Chapter 8 discusses how national climate legislation is complemented by action at the regional, state and municipal level. The importance of sub-national actors is increasingly recognized in the international negotiations, and the Paris Agreement includes an explicit requirement to integrate climate policies across all levels of government. Responsibility for the implementation of national policies in key areas such as energy, transport and the environment is often devolved to the sub-national level. This gives cities and regions a formal role in national efforts to reduce emissions. Sub-national actors are also central to climate resilience. Adaptation to climate change is very context-specific and requires the close involvement of local stakeholders. The chapter documents how sub-national governments are often taking the lead in climate policy, assuming commitments that can exceed those made at national level. However, the coexistence of regional and national climate policies can create coordination problems and a high degree of collaboration among all levels of governance is essential.
Alina Averchenkova and Sini Matikainen
Chapter 10 discusses the interplay between national climate legislation and international efforts to combat climate change. The chapter outlines the key implications of the Paris Agreement for domestic law making and assesses the consistency of domestic mitigation efforts by the G20 group of countries with the Paris objectives. To be consistent with their nationally determined contributions (NDCs) to the Paris Agreement countries will need to adjust not just the level, but also the time frame and scope of their domestic climate targets. The majority of countries have yet to adopt a domestic emission target that is consistent with their NDCs. For Paris to be successful, countries also need to put more emphasis on ensuring the credibility and faithful implementation of their commitments. Success also demands a more systematic assessment of the adequacy of domestic efforts and improved national processes for monitoring, reporting and verification. Monitoring progress should focus not only on whether targets are being met, but also on their consistency with the 1.5–2°C pathway agreed in Paris.
Michal Nachmany, Achala Abeysinghe and Subhi Barakat
Chapter 4 describes the unique challenges of least developing countries (LDCs) in climate policy and traces their growing engagement on climate change. The motivations and challenges of LDCs are very different from those of industrialized economies, due both to their low emissions profile and their high vulnerability to climate impacts. As energy-related emissions are low, the transition to a low-carbon economy of LDCs simultaneously serves mitigation, adaptation and development objectives. However, integrating climate change into general development plans remains a challenge, and fewer than half of the LDCs have done so. Other focus areas are disaster risk reduction, climate resilience, land use change and access to international climate finance, although there is less legislative activity in these areas. A growing number of countries are contemplating dedicated climate laws, but climate action is still predominantly pursued through policies and executive instruments, rather than formal acts of parliament.
Isabella Neuweg and Alina Averchenkova
Chapter 3 contains an in-depth analysis of climate policy in the world’s largest greenhouse gas emitters – China, the European Union and the USA. The chapter details how they each face their unique challenges and how they have taken different routes in developing and implementing climate policy. China’s approach to climate policy reflects a governance system that is driven more by executive orders than acts of parliament. Accordingly, China has chosen to embed its climate change objectives in successive Five-Year-Plans. In the EU, policy making requires agreement across member states. Member states have decided to make climate policy an EU matter, setting binding EU-wide targets on carbon emissions, renewable energy and energy efficiency, and setting up a pan-European emissions trading scheme. US policy makers have taken a regulatory approach, with federal action based on an existing piece of legislation, the 1990 Clean Air Act. This reflects the contested nature of climate change policy, which has made it difficult to pass meaningful climate change legislation at the federal level. However, many states have moved ahead of the federal level, often enacting world-leading climate legislation.