Research Handbook on Climate Change Mitigation Law 183910158X, 9781839101588

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RESEARCH HANDBOOK ON CLIMATE CHANGE MITIGATION LAW

RESEARCH HANDBOOKS IN CLIMATE LAW Series Editor: Jonathan Verschuuren, Tilburg University, the Netherlands This important and timely series brings together critical and thought-provoking contributions on the most pressing topics and issues within the field of climate law. The volumes in this significant series cover a wide array of the effects of climate change on such diverse fields as trade, human rights, energy, disasters, finance, and migration. Each Research Handbook comprises specially commissioned chapters from leading academics, and practitioners, as well as those with an emerging reputation and is written with a global readership in mind. Equally useful as reference tools or high-level introductions to specific topics, issues and debates, these Research Handbooks will be used by academic researchers, postgraduate students, practising lawyers and lawyers in policy circles. Titles in this series include: Research Handbook on Climate Change and Agricultural Law Edited by Mary Jane Angelo and Anél Du Plessis Research Handbook on Climate Change, Migration and the Law Edited by Benoît Mayer and François Crépeau Research Handbook on Climate Disaster Law Barriers and Opportunities Edited by Rosemary Lyster and Robert Verchick Research Handbook on Global Climate Constitutionalism Edited by Jordi Jaria-Manzano and Susana Borràs Research Handbook on Climate Change, Oceans and Coasts Edited by Jan McDonald, Jeffrey McGee and Richard Barnes Research Handbook on Climate Change Law and Loss & Damage Edited by Meinhard Doelle and Sara L. Seck Research Handbook on Climate Change Adaptation Law Edited by Jonathan Verschuuren Research Handbook on Climate Change Mitigation Law Second Edition Edited by Leonie Reins and Jonathan Verschuuren

Research Handbook on Climate Change Mitigation Law SECOND EDITION

Edited by

Leonie Reins Erasmus Law School, Erasmus University Rotterdam, the Netherlands

Jonathan Verschuuren Tilburg Law School, the Netherlands

RESEARCH HANDBOOKS IN CLIMATE LAW

Cheltenham, UK • Northampton, MA, USA

© Editors and Contributors Severally 2022

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2022941080 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781839101595

ISBN 978 1 83910 158 8 (cased) ISBN 978 1 83910 159 5 (eBook)

EEP BoX

Contents

List of contributorsvii PART I

CLIMATE CHANGE MITIGATION LAW – ARCHITECTURE AND GOVERNANCE

1

Climate change mitigation and the role of law Leonie Reins and Jonathan Verschuuren

2

The evolving architecture of global climate law Harro van Asselt, Michael Mehling and Kati Kulovesi

17

3

Climate change mitigation and the precautionary principle Nicolas de Sadeleer

43

PART II

2

CLIMATE CHANGE MITIGATION LAW AND POLICY IN THE REGIONS

4

The European Union and its rule-creating force on the European continent for moving to climate neutrality by 2050 at the latest Marjan Peeters and Delphine Misonne

5

Climate change mitigation law and policy in the United States and Canada Katrina Fischer Kuh and Michael Charles Leach

103

6

Climate change mitigation law and policy in Central and South America Juliana Zuluaga Madrid

138

7

Climate change mitigation law and policy in the Asia-Pacific Alexander Zahar

156

8

Climate change mitigation law and policy in the Middle East Mehdi Piri

179

9

Climate change mitigation law and policy in the BRICS Rafael Leal-Arcas, Mariam Al Zarkani, Lina Jbara, Ruqaya Mohamed Mubwana, Marianna Margaritidou and Angela van der Berg

196

10

Climate change mitigation law and policy in Africa Olivia Rumble and Andrew Gilder

240

v

59

vi  Research handbook on climate change mitigation law PART III OVERARCHING LEGAL TOOLS FOR CLIMATE CHANGE MITIGATION 11

Climate finance after Paris David Driesen and Cinnamon Carlarne

12

Incentivizing carbon transition – a comparison of carbon trading in the EU and China Stefan E. Weishaar, Kateryna Holzer and Bingyu Liu

13

Climate litigation in the context of mitigation: an evolving jurisprudence Patrick Parenteau

263

283 307

PART IV SECTORS 14

Regulatory and policy instruments to promote decarbonization in the energy sector Sirja-Leena Penttinen

15

Transportation’s trinity and climate change mitigation Tanveer Ahmad, Paul Fitzgerald and Jeffrey J. Smith

16

Cities and climate change mitigation law from a polycentric and comparative perspective Cathrin Zengerling, Debora Sotto and Oliver Fuo

17

Agriculture, forestry and other land use (AFOLU) Jonathan Verschuuren

18

Carbon majors, social choice, and anticommons: addressing climate change mitigation policy formation in the industrial sector Roy Andrew Partain

19

Waste management Geert Van Calster and Luna Aristei

482

20

Greenhouse gas removal Tracy Hester and Kirsten Williams

502

338 363

398 433

457

Index527

Contributors

Tanveer Ahmad is an Associate Member and former Executive Director of the Centre for Research in Air and Space Law at McGill University. He has lectured in Canada, China and Bangladesh, and has published extensively in the areas of aviation law and environmental law. Mariam Al Zarkani is an Outreach Programme Specialist at the Environment Agency Abu Dhabi and works to raise environmental awareness among the general public and the different organizations in Abu Dhabi. Mariam earned a Master’s degree in Environmental Sustainability Law and Policy from Sorbonne University and a Bachelor’s degree in Environmental Science from Abu Dhabi University. Luna Aristei holds a PhD in environmental law from Luiss University in Rome, Italy. She is a teaching assistant in environmental law, administrative law and public economic law courses at Luiss University. She has written several papers on environmental law and energy law. Cinnamon Carlarne is the Associate Dean for Faculty & Intellectual Life and the Robert J. Lynn Chair in Law at the Ohio State University, where she teaches domestic and international environmental law and climate change law. She has published numerous books and articles exploring the evolution of systems of environmental and climate change law. She is a member of the editorial board of Transnational Environmental Law (Cambridge), and the academic advisory board for Climate Law (Brill). Nicolas de Sadeleer is a professor at Saint-Louis University. He is a specialist in EU law (institutions, internal market), environmental law (international and domestic) and comparative law. He is an active commentator on EU legal and political issues in the areas of trade, investment, and sustainable development. In addition to holding guest academic positions at over 40 universities around the world, he has been the recipient of five international university chairs. In addition, he has worked as a lawyer and consultant with national and international authorities on a wide range of environmental issues. His research has been published with leading scholarly publishing houses and journals around the globe. David Driesen is a University Professor at Syracuse University, where he teaches an interdisciplinary climate change course and environmental law. He has published numerous books and articles on the law and economics of environmental and climate change law. He is a member of the editorial boards of Carbon and Climate Law Review and Environmental Law (Oxford). Katrina Fischer Kuh is the Haub Distinguished Professor of Environmental Law at the Elisabeth Haub School of Law at Pace University and co-editor of Climate Change Law: An Introduction and The Law of Adaptation to Climate Change: United States and International Aspects. She is also a member of the Environmental Law Collaborative and serves on the board of Green Amendments for the Generations and on the law committee of the Municipal Arts Society.

vii

viii  Research handbook on climate change mitigation law Paul Fitzgerald is a former Member (Judge) of the Canadian Transportation Agency whose decisions have been favourably reviewed by Canada’s Federal Court of Appeal and the Supreme Court of Canada. He is an adjunct professor at the Institute of Air & Space Law (IASL), McGill University. He has been the driving force behind Canada’s Open Skies agreements with Iceland, New Zealand, Barbados, the Dominican Republic, South Korea and the European Union and has successfully fought against regulatory initiatives that would have harmed the airline industry. He has lectured in law at the IASL, DePaul Law School in Chicago, the University of Mississippi and Gujarat National Law University in Gandhinagar, India. He has been published multiple times in seven different air law journals, in book chapters, as an author, and as part of airline industry conference proceedings in nine countries in all parts of the world. Oliver Fuo is an associate professor in the Faculty of Law, North-West University (NWU), South Africa. He is a is a recipient of several fellowships including: the TWAS-DFG Cooperation Visits Programme for Scientists from Sub-Saharan Africa; the Humboldt Talent Travel Award; and a DAAD Scholarship, which enabled him to visit the Faculty of Law, Freie Universitat zu Berlin (FU), Germany, on several occasions and the Justus-Liebig University, Giessen in 2013. Oliver Fuo has presented papers in national and international conferences and has published numerous articles in established national and international journals. His research primarily focuses on the role of local government in advancing the constitutional mandate of social justice in South Africa. Andrew Gilder is South Africa’s leading private sector environmental, climate change and carbon markets lawyer – he is a director of Climate Legal, with more than 19 years’ legal practice experience specialising in climate change (mitigation and adaptation), climate finance and development, carbon markets, carbon tax, environmental and energy law, policy and governance. Andrew is admitted as an attorney of the High Court of South Africa (Gauteng and Western Cape) and holds a BA LLB (University of Natal – now KwaZulu-Natal) and LLM (Marine and Environmental Law, University of Cape Town). Tracy Hester is Instructional Associate Professor of Law at the University of Houston Law Center. His research focuses on the innovative application of environmental laws to emerging technologies and unanticipated risks, including climate engineering, deep decarbonisation (particularly in energy production), nanotechnologies, artificial intelligence, genetic modification, and advanced wind, solar, and other renewable power systems. Prior to joining the University of Houston Law Center, Prof. Hester served as a partner in Bracewell LLP for 16 years and led that firm’s Houston office’s environmental group. Kateryna Holzer is a senior researcher at the University of Eastern Finland and an international consultant on environmental, energy and climate change issues in trade law and policy. Her research covers border carbon adjustments, legal issues of mitigation of short-lived climate pollutants, environmental initiatives under preferential trade agreements, technical barriers to trade, and alternative methods of trade dispute resolution. She holds a PhD in Law from the University of Bern, Switzerland, and a PhD in Economics from Ukraine. Lina Jbara is a senior specialist at Khalifa University in Abu Dhabi (the UAE). She has a Bachelor’s degree in Environmental Health and a Master’s degree in Public Health from the American University of Beirut. Most recently, she earned a second Master’s degree in the field

Contributors  ix of Environment Sustainability Law & Policies from the University of Paris. Lina has several publications in the field of environmental and public health and uses her combined education and research experience to advocate the promotion of a safe and healthy environment for future generations. Kati Kulovesi is Professor of International Law and Director with the Centre for Climate Change, Energy and Environmental Law at the University of Eastern Finland Law School. She is also Docent of International Law with the Erik Castrén Institute of Human Rights and International Law at the University of Helsinki and Senior Associate Researcher with the Brussels School of Governance, VUB. Michael Charles Leach is a postdoctoral researcher at Tilburg Law School, Tilburg University. His current research contributes to two research projects, namely the Netherlands Research Council (NWO)-funded ‘Reducing Greenhouse Gas Emissions from Agriculture: The Role of Emissions Trading (ETSA)’ project, and the Ministry of Education, Culture and Science-funded Social Sciences and Humanities Sectorplan ‘Constitutionalizing in the Anthropocene’ project. Rafael Leal-Arcas is Professor of Law at Alfaisal University (Riyadh, Kingdom of Saudi Arabia). He is also the inaugural Lee Kong Chian International Visiting Professor, Singapore Management University School of Law (Singapore), and was previously Jean Monnet Chaired Professor of EU International Economic Law and Professor of Law, Queen Mary University of London (UK). He also serves as an expert for the UK’s Department for International Trade’s (DIT) Sustainability Thematic Working Group. This group provides expert advice and supports the UK Government with its trade and environment objectives through new trade agreements and as a fully independent member in the World Trade Organisation. Rafael is on the roster of arbitrators and/or trade and sustainable development (TSD) experts in bilateral disputes under the European Union’s trade agreements with third countries, selected by Directorate General for Trade, European Commission. He is also on the roster of experts for legal services of the Energy Community Secretariat. Bingyu Liu is an associate professor at the School of International Law at China University of Political Science and Law (CUPL). Her research covers legal issues of sustainable investment of multinationals and financial institutions overseas, corporate social responsibility and accountability, green finance and climate change. She gained professional experience at several environmental organizations and government institutions, such as UN Environment, the Ministry of Foreign Affairs of China, and the Research Center of The Hague Academy of International Law. She holds a PhD degree in Law from Peter A. Allard School of Law, University of British Columbia (UBC). Marianna Margaritidou is currently training to qualify as an England and Wales solicitor. She has a Bachelor’s degree in Law from the University of Paris Descartes and a Master’s degree in Environmental Sustainability Law & Policies from the University of Paris in addition to completing her Graduate Diploma in Law and Legal Practice Course with the University of Law. Michael Mehling is the Deputy Director of the Center for Energy and Environmental Policy Research (CEEPR) at the Massachusetts Institute of Technology (MIT) in Cambridge, Mass., and a professor at the University of Strathclyde School of Law in Glasgow. He is also the

x  Research handbook on climate change mitigation law founding editor of the Carbon & Climate Law Review (CCLR), the first academic journal focused on climate law and regulation. Delphine Misonne is Professor of Environmental Law at Université Saint-Louis – Bruxelles, FNRS (Belgian Fund for Scientific Research) Research Associate and head of CEDRE (Environmental Law Centre, Université Saint-Louis – Bruxelles). Her research focuses on the legal determinants conditioning the choice of a level of environmental protection. She explores the main new challenges EU environmental law faces today, in a context of multiple crises (including climate change), at the interface of legal orders. She is also a specialist in transversal policies, such as ambient air quality and climate change governance. She holds a chair in Law, Governance and Sustainable Development. Ruqaya Mohamed Mubwana is Manager Air Quality, Noise and Climate Change Section Environment Agency Abu Dhabi. Patrick Parenteau is Professor of Law Emeritus and Senior Fellow for Climate Policy at Vermont Law School. He is the former director of the Environmental Law Center at VLS. His career in environmental law spans five decades and includes senior positions with federal and state government and in the private sector. He is a fellow in the American College of Environmental Lawyers and a Fulbright Scholar. Roy Andrew Partain is the Chair in Mathematical Structures in Law in the School of Law at the University of Aberdeen. His research examines how mathematical patterns exist and operate within legal rules and legal institutions. His research finds new ways to apply mathematical methodologies, social science models, or techniques from computing science to illuminate legal research. Professor Partain’s research has been financially supported by the Japan Society for the Promotion of Science (JSPS), the Korea Legislation Research Institute (KLRI), the Korean Ministry of Environment, and the Korean Ministry of Trade, Industry and Energy, and by the University of Aberdeen. Marjan Peeters is Professor of Environmental Policy and Law at Maastricht University, the Netherlands. She has been specialising in environmental law since 1987, thereby examining how a high level of environmental protection can be effectively and efficiently reached based on the rule of law and in the context of sustainable development. Her research concentrates on regulatory instruments, environmental procedural rights, and uncertain risks, with a focus on climate law and EU environmental law. Her latest co-edited book is the Research Handbook on EU Environmental Law, Edward Elgar Publishing, 2020. Marjan spends one day a week at the Maastricht Sustainability Institute, teaching a law course in the Master’s in Sustainability Science, Policy and Society. Sirja-Leena Penttinen currently serves as Assistant Director of the Center for Energy Law and as an adjunct professor at Tulane University Law School (New Orleans, US). She is also a senior lecturer at UEF Law School, University of Eastern Finland. She has published widely on different aspects of international and European energy law; her recent research and consultancy activities have focused especially on the implications of the sustainable energy transition to markets and investments. Mehdi Piri is Assistant Professor of International Energy and Environmental Law at University of Tehran, Iran. He is also experienced legal advisor, attorney at law and arbitrator

Contributors  xi with a demonstrated history of working in international agreements negotiations and management. He graduated with a Doctor of Philosophy (PhD) focused on international energy and environmental law from Maastricht University (2015). His research is mainly focuses on various legal aspects of energy law and its relation to environmental law. Leonie Reins holds the Chair in Public Law and Sustainability at the Erasmus School of Law, Erasmus University Rotterdam. Prior to that she was an assistant professor at the Tilburg Institute for Law, Technology and Society (TILT), Tilburg Law School. She worked as a PhD candidate and then as a postdoctoral researcher at KU Leuven (Belgium). In addition Leonie worked as a legal advisor at a Brussels-based environmental law and policy consultancy, where she was involved in projects relating to environmental, energy and climate change law and policy. Leonie holds an LLM in International, European and Comparative Energy and Environmental Law. Olivia Rumble is a director of Climate Legal and an adjunct senior lecturer in environmental law at the University of Cape Town (UCT), and a visiting law lecturer at UCT’s African Climate and Development Initiative. She is admitted as an attorney of the High Court of South Africa and holds a degree in Politics, Philosophy and Economics (PPE) (University of Stellenbosch), as well as an LLB and LLM in Environmental Law (with distinction) from UCT. Jeffrey J. Smith is a lecturer in law at the Norman Paterson School of International Affairs, Ottawa. Previously counsel to the United Nations in East Timor (Timor-Leste) during that country’s transition to independence, he has written extensively about marine environmental protection, shipping regulation and application of the law of the sea to sustainability governance. A fellow of the Canadian Institute of Marine Engineering, he holds graduate law degrees from the Fletcher School of Law & Diplomacy and McGill University. Debora Sotto holds a Bachelor of Law degree from the University of São Paulo (1998), a Master’s in International and Comparative Environmental Law from the University of Limoges, France (2011) and a PhD in Urban Law from the Pontifical Catholic University of São Paulo, Brazil (2015). From 2017 to 2018, she developed a research project on urban planning, sustainable urban development, and local climate action at the School of Public Health of the University of São Paulo. Currently, she is developing a second postdoctorate at the Global Cities Program of the Institute of Advanced Studies of the University of São Paulo, focused on urban resilience and sustainable urban development. Dr Sotto also works as a legal consultant at the Municipality of São Paulo. Harro van Asselt is Professor of Climate Law and Policy with the Centre for Climate Change, Energy and Environmental Law at the University of Eastern Finland Law School, a visiting researcher with the Copernicus Institute of Sustainable Development at Utrecht University, and an affiliated researcher with the Stockholm Environment Institute. He is also the Editor of the Review of European, Comparative & International Environmental Law (RECIEL). Geert Van Calster is full Professor at the University of Leuven and a practising member of the Belgian Bar. He is the author of EU Waste Law (Oxford University Press) and co-author with Leonie Reins of EU Environmental Law (Edward Elgar Publishing).

xii  Research handbook on climate change mitigation law Angela van der Berg is Acting Director at the Global Environmental Law Centre (GELC) at the University of Western Cape, as well as Senior Lecturer at the Department of Public Law and Jurisprudence, University of Western Cape. Angela obtained her joint PhD in Law and Development from Tilburg University, Netherlands in 2019 and from the North-West University, South Africa in May 2020. The PhD focussed on the role of urban planning and environmental law and policy for promoting sustainable cities. From this research, Angela published several accredited peer reviewed articles and book chapters on the role of environmental- and planning law for sustainable urban development as articulated in Sustainable Development Goal 11 (Sustainable Cities). Angela’s current research relates to climate change and how government authorities (national, federal and local) can pursue more environmentally sustainable and climate resilient futures by rethinking and re-purposing existing approaches to law and governance. Jonathan Verschuuren is a professor of International and European Environmental Law at Tilburg University, the Netherlands. He holds a doctorate degree cum laude (1993, Tilburg). In 2016–2017 he was a Marie Sklodowska Curie fellow at the University of Sydney, and he has an extraordinary professorship at North-West University, and at the University of the Western Cape, South Africa. In 2017, Jonathan was awarded the IUCN Academy of Environmental Law Senior Scholarship Prize. His research mainly focuses on various legal aspects of climate change, including coastal adaptation and climate smart agriculture, as well as on the foundations of environmental law, such as the role of principles. Verschuuren has written more than 200 publications in the field of environmental law, including several books, and many articles in outstanding refereed journals throughout the world. He is the editor of the Research Handbooks in Climate Law series. Stefan E. Weishaar is Professor of Law and Economics at Groningen University. Stefan is a research affiliate at MIT Center for Energy and Environmental Policy Research in Boston (USA) and Adjunct Professor at the School of Law and Economics at China University of Political Science and Law. He is also a member of the UN Subcommittee on Environmental Taxation. Stefan has a keen interest in the working of markets and regulatory instruments. His work covers several Law and Economics domains in the areas of Climate & Energy law, Competition law, Procurement law and Market integration. Kirsten Williams is a Juris Doctor Candidate at the University of Houston Law Center and Chief Articles Editor of the Houston Law Review. After graduation in May 2022, Kirsten will clerk for Judge Andrew Edison in the Southern District of Texas for the 2022–2023 term. Alexander Zahar is Professor of International Law at Southwest University of Political Science and Law, in Chongqing, China. His research interests are in international climate change law, as well as climate change law in China. He is the founder and editor of the journal Climate Law (Brill). His most recent books are two edited volumes: Climate Change Law in China in Global Context (Routledge, 2020; with Hao Zhang and He Xiangbai), and Debating Climate Law (Cambridge University Press, 2021; with Benoit Mayer). Cathrin Zengerling is an associate professor at the Faculty of Environment and Natural Resources at the Albert-Ludwigs-University of Freiburg and works primarily in the areas of (international) environmental, energy and planning law as well as sustainable urban development. She holds a PhD in International Environmental Law from the University of Hamburg

Contributors  xiii and a Master’s of Laws from the University of Michigan. She heads the research group ‘Urban Footprints – Towards Greater Accountability in the Governance of Cities’ Carbon and Material Flows’, funded by a Freigeist-Fellowship of the Volkswagen Foundation. Her current research focuses on the role of cities in combating climate change and resource depletion, legal steering of the energy transition in a multilevel governance system, climate litigation, and climate change and trade. Juliana Zuluaga Madrid is a lawyer and researcher, with a focus on environmental and energy law. In 2008 she obtained a Bachelor of Law degree (Universidad Católica de Oriente) and in 2011 the degree of Master of Laws in Energy and Environmental Law (KU Leuven). In September 2020 she obtained the degree of Doctor of Philosophy in Law from KU Leuven (Belgium). Since October 2019 she has been Senior Lawyer at Gran Tierra Energy, an oil and gas company with operations in Colombia and Ecuador and has been an academic advisor in mining and environmental law at Universidad del Rosario (Bogotá, Colombia).

PART I CLIMATE CHANGE MITIGATION LAW – ARCHITECTURE AND GOVERNANCE

1. Climate change mitigation and the role of law Leonie Reins and Jonathan Verschuuren

1

WHAT IS CLIMATE CHANGE MITIGATION?

The IPCC defines mitigation simply as ‘a human intervention to reduce the sources or enhance the sinks of greenhouse gasses’.1 Sources of greenhouse gas (GHG) emissions are not only large CO2-emitting installations like coal-fired power plants, industrial plants or fossil fuel-powered engines in cars, ships and aircraft. Powerful GHGs like methane (CH4) and nitrous oxide (N2O) are emitted in agriculture (mostly by livestock, but also through the use of synthetic fertilisers) and in waste management, whereas hydrofluorocarbons are used in appliances for air conditioning and refrigerating. Sinks of greenhouse gases take up CO2 from the atmosphere. These are not just forests, but also all other types of vegetation as well as soils. Enhancement of sinks, therefore, are measures such as afforestation or reforestation, (re)introducing natural vegetation and soil management. Although mitigation policies across the globe have matured since the first edition of this Research Handbook was published, the results of these policies are still largely insufficient. In its Fifth Assessment Report (AR5), the IPCC concluded that ‘the current trajectory of global annual and cumulative emissions of GHGs is inconsistent’ with the goal of limiting global warming to between 1.5 to 2 degrees Celsius above the pre-industrial level.2 One year later, in 2015, the Paris Agreement had codified this goal.3 In 2021, the IPCC, in its Sixth Assessment Report (AR6), reached a similar conclusion, as emissions have continued to rise.4 In 2021, the International Energy Agency concluded that ‘commitments made to date fall far short of what is required by’ a global pathway to net‐zero emissions by 2050.5 This means that further human interventions to reduce the sources and enhance the sinks of greenhouse gases are still very much needed.

For example, R. van Diemen (ed.), ‘Annex I: Glossary’ in P. R. Shukla et al. (eds), ‘Climate Change and Land: An IPCC special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems’ (IPCC 2019) 819. 2 D. G. Victor et al., ‘Introductory Chapter’ in O. Edenhofer et al. (eds), Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2014) 113. 3 Paris Agreement (13 December 2015), (2016) 55 ILM 740, entered into force 4 November 2016. 4 Richard P. Allan et al., ‘Summary for Policymakers’ in V. Masson-Delmotte et al. (eds), Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2021). 5 International Energy Agency, ‘Net Zero by 2050. A Roadmap for the Global Energy Sector’ (IEA 2021) 13. 1

2

Climate change mitigation and the role of law  3

2

THE HISTORY OF CLIMATE CHANGE MITIGATION LAW6

Although climate change has been discussed by a few as an environmental problem from as early as the late 19th century, and by many more since the late 1950s,7 early international environmental law did not focus on it. In 1979, a panel of experts convened by the US National Academy of Sciences concluded that a doubling of the CO2 level compared to pre-industrial levels would probably lead to a warming of about 3 °C (plus or minus 50 per cent) in the 21st century.8 In 1985, climate experts from 29 countries called upon the international community to draft an international agreement to limit greenhouse gas emissions in a meeting that was sponsored by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO).9 Three years later, both international organisations managed to get enough support for the endorsement of the creation of the Intergovernmental Panel on Climate Change (IPCC) by the United Nations’ General Assembly.10 In this Resolution, the General Assembly ‘urges upon governments, intergovernmental and non-governmental organizations … to treat climate change as a priority issue’.11 The global framework was created four years later, with the adoption of the United Nations Framework Convention on Climate Change (UNFCCC) at the UN Conference on Environment and Development in Rio de Janeiro in 1992.12 The UNFCCC required all states to implement a mitigation policy, without, however setting a target.13 It was only with the adoption of the Kyoto Protocol in 1997 that legally binding mitigation targets were imposed, if only for a limited number of developed countries.14 The main legacy of the Kyoto Protocol may very well be the fact that it proposed the use of a range of flexible mitigation instruments,15 some of which were aimed at using the global market mechanism, such as the Emissions Trading System,16 Joint Implementation,17 and the Clean Development Mechanism.18 These instruments still play an important role in mitigation policies across the world.

This section uses a small part of Jonathan Verschuuren, ‘Climate Change’ in Duncan French and Louis Kotzé (eds), Research Handbook on Law, Governance and Planetary Boundaries (Edward Elgar Publishing 2021) 246–260. This issue is further discussed in Chapter 2. 7 For a good account of the history of climate science, see Spencer R. Weart, The Discovery of Global Warming. Revised and Expanded Edition (2nd edn, Harvard University Press 2008). 8 Ibid. at 100. 9 UNEP, ‘Annual Report of the Executive Director’ (1985), IV, paras 138–140. 10 UN General Assembly Resolution 43/53, ‘Protection of Global Climate for Present and Future Generations of Mankind’ of 6 December 1988. 11 Ibid. at para. 6. 12 United Nations Framework Convention on Climate Change (9 May 1992), (1992) 31 ILM 849, entered into force 21 March 1994. 13 Article 4(1) UNFCCC. 14 Kyoto Protocol to the United Nations Framework Convention on Climate Change (11 December 1997), (1998) 37 ILM 22, entered into force 16 February 2005. 15 Javier de Cendra de Larragán, ‘The Kyoto Protocol with a Special Focus on the Flexible Mechanism’ in Daniel A. Farber and Marjan Peeters (eds), Climate Change Law (Edward Elgar Publishing 2016) 227–238. 16 Article 17 Kyoto Protocol. 17 Article 6 Kyoto Protocol. 18 Article 12 Kyoto Protocol. 6

4  Research handbook on climate change mitigation law One of several severe shortcomings of the Kyoto Protocol is the absence of an overarching end goal at which states should focus their long-term mitigation policies. It was the European Council, the EU institution of Ministers of the Environment of the EU Member States, which, in 1996, decided that global average temperatures should not exceed 2 degrees above pre-industrial levels and that concentration levels lower than 550 ppm CO2 should guide global limitation and reduction efforts.19 In its decision, the Council referred to the IPCC’s report, without indicating how and why this aim was chosen. This decision did not gain wide international support, but did seem to prepare policymakers for adopting an overall climate change target.20 It was not until the 2009 Copenhagen COP that this target was adopted under the UNFCCC, paving the way for a ‘bottom-up’ approach for parties setting their own mitigation objectives, and not until the 2015 Paris Agreement (PA) before it made its way into a legally binding treaty text.21 The Paris Agreement requires all contracting states to hold the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels.22 Hence, mitigation is central to the Paris Agreement (see further Chapter 2). According to Article 4 of the Paris Agreement, all states have to submit their own nationally determined contributions (NDCs) so as to collectively achieve the global target, and are ‘to reach global peaking of greenhouse gas emissions as soon as possible’ and ‘to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century’.23 Article 4 is complemented by Article 5 on the conservation and enhancement of sinks, reservoirs of GHGs and forests and Article 6 on the international transfer of mitigation outcomes. In order to reach the mitigation target of well below 2 °C and hence implement Article 4 of the PA in practice, several other Articles of the PA provide the necessary framework. Article 9 on finance, Article 10 on technology development and transfer, Article 11 on capacity-building, Article 13 on transparency, Article 14’s global stocktake and Article 15 establishing the Agreement’s compliance mechanism ‘all aim at monitoring and promoting effective … mitigation action’.24 As a consequence of this approach, since 2015, all states are required to develop and implement strict mitigation policies aimed at achieving this collective goal. Law plays an important role in these policies, even though the Paris Agreement itself, respecting the principle of sovereignty of states, does not prescribe any concrete methods.

19 1939th Council Meeting – Environment, Brussels, 25–26 June 1996, Community Strategy on Climate Change, para. 6, available at https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​PRES​_96​ _188 accessed 4 June 2021. 20 See extensively Yun Gaoa, Xiang Gaob, Xiaohua Zhang, ‘The 2 °C Global Temperature Target and the Evolution of the Long-Term Goal of Addressing Climate Change—From the United Nations Framework Convention on Climate Change to the Paris Agreement’ (2017) 3 Engineering 272–278. 21 Judith Blau, ‘The Long, Long Road to Paris’ in J. Blau, The Paris Agreement (Palgrave Macmillan 2017) 23–31. 22 Art. 2(1)(a) Paris Agreement. See further Halldór Thorgeirsson, ‘Objective (Article 2.1)’ in Daniel Klein, Maria Pia Carazo, Meinhard Doelle, Jane Bulmer and Andrew Higham (eds), The Paris Agreement on Climate Change. Analysis and Commentary (Oxford University Press 2017) 123–130. 23 Article 4(2) Paris Agreement. 24 Benoit Mayer, ‘Article 2 – Aims, Objectives and Principles’ in Geert van Calster and Leonie Reins (eds), The Paris Agreement on Climate Change – A Commentary (Edward Elgar Publishing 2021) 4.01.

Climate change mitigation and the role of law  5

3

CLIMATE CHANGE MITIGATION AND THE ROLE OF LAW

In its AR5, the IPCC concluded that ‘deep cuts in emissions will require a diverse portfolio of policies, institutions, and technologies as well as changes in human behaviour and consumption patterns’.25 Although the word ‘law’ is absent, it is obvious that law plays a key role in the diverse portfolio that the IPCC mentions here. Current mitigation laws around the world provide for carbon pricing mechanisms, such as carbon taxes or emissions trading systems, subsidies and feed-in tariffs on renewable energy, zoning decisions for wind farms and solar fields, energy efficiency standards for cars and buildings, rules on waste management and landfills, rules on farming practices such as rotational grazing or shallow tillage, meat taxes and rules on the protection and management of trees and forests. So far, most attention has been focused on the energy sector. This was to be expected since the energy sector is responsible for around three‐quarters of greenhouse gas emissions.26 Over the past 20 years or so, this focus on energy has already led to the development and implementation of many laws aimed at discouraging the use of fossil energy and at promoting the generation and use of renewable energy. Yet, the International Energy Agency recently noted that an immediate and massive deployment of all available clean and efficient energy technologies is required between 2021 and 2030 if we are to get on track towards achieving the Paris Agreement goals.27 This means that existing laws will have to be tightened and new legal instruments need to be developed. With the energy transition underway, the other sectors are now under increased scrutiny. GHG emissions from sectors that until now were hardly touched by legally binding mitigation laws, such as the aviation and shipping sectors and the agricultural sector, will have to be regulated as well in order to achieve the Paris Agreement goals. Regulating GHG emissions from these sectors comes with many legal challenges, for example because of the transboundary nature of aviation and shipping, and because of the enormous number of very different farms around the world. Although the dominant role of law in climate change mitigation is to provide instruments for change, law also has a protective role. Human rights of individual people need to be protected against the impacts of climate change, but also against adverse side effects of mitigation measures (such as the construction of a large wind turbine close to someone’s home). Such side effects can also affect other vulnerable interests such as biodiversity and landscapes. Law also provides protection for businesses against unfair competition or other trade distortions caused either by climate change itself or by climate change mitigation policies adopted by governments. Law also shapes institutions and decision-making processes that are needed to help the world transition to a modus operandi that remains within the planetary boundary of a safe climate.

Victor et al., above note 2 at 114. IEA, above note 5 at 13. 27 Ibid. at 14. 25 26

6  Research handbook on climate change mitigation law

4

LINKS BETWEEN MITIGATION AND ADAPTATION

Mitigation cannot be regarded in isolation from adaptation.28 In the past, mitigation has had a stronger standing in international (and often also national) law;29 however, during the last two decades, it has emerged that mitigation as the only strategy is not enough; the world also has to adapt to the impact of climate change.30 In the Paris Agreement, this is, for example, reflected by the fact that, besides mitigation, adaptation is also addressed in a stand-alone Article.31 The current approach is that not only are they both important elements of any climate change policy, they are also positively and negatively interlinked. First, mitigation measures in the land and land use sector may equally serve adaptation goals. Afforestation, reforestation, and preserving and restoring mangroves, with the goal of sequestering carbon, can also be part of an adaptation strategy aimed at protecting the land against flooding, against landslides following intense rainfall, or against the negative impact of storms. The same goes for many mitigation measures in agriculture: increased carbon sequestration through planting and protecting natural vegetation on farmland, rotational grazing, agroforestry and soil carbon sequestration not only reduce emissions, but also create resilient and more healthy agricultural soils that are more resistant to droughts. Green buildings and green roofs reduce energy consumption and carbon uptake, while at the same time providing protection against the negative impact of heat waves. The second link between adaptation and mitigation is a negative one. Adaptation measures can be harmful to mitigation goals in the sense that they may lead to (a) more greenhouse gas emissions; or (b) a reduction of carbon uptake. The examples are obvious. Installing air conditioners to combat the heat leads to more energy consumption and thus, if the energy comes from a coal-fuelled energy installation, to higher emissions. Replacing a natural coastal habitat with a large sea wall to combat sea level rise and storm surges leads to a loss of natural carbon uptake. Mitigation measures, on the other hand, can be harmful for adaptation as well. Afforestation in arid and semi-arid regions strongly reduces water yields and thus has a negative impact on local agriculture and biodiversity. Switching to hydropower may reduce irrigation options for farmers and thus deprive them of adaptation opportunities.

The IPCC defines adaptation as ‘In human systems, the process of adjustment to actual or expected climate and its effects, in order to moderate harm or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate and its effects; human intervention may facilitate adjustment to expected climate and its effects.’ It differentiates between ‘incremental adaptation’, namely ‘Adaptation that maintains the essence and integrity of a system or process at a given scale. In some cases, incremental adaptation can accrue to result in transformational adaptation (Termeer et al., 2017; Tàbara et al., 2018)’ and ‘transformational adaptation’, namely ‘Adaptation that changes the fundamental attributes of a socio-ecological system in anticipation of climate change and its impacts’; https://​www​ .ipcc​.ch/​sr15/​chapter/​glossary/​. 29 Navraj Singh Ghaleigh, ‘Article 2 – Aims, Objectives and Principles’ in Geert Van Calster and Leonie Reins (eds), The Paris Agreement on Climate Change – A Commentary (Edward Elgar Publishing 2021) 2.19. 30 IPPC, Fourth Assessment Report (2007), 101: ‘mitigation will always be required to avoid “dangerous” and irreversible changes to the climate system. Irrespective of the scale of mitigation measures that are implemented in the next 10–20 years, adaptation measures will still be required due to inertia in the climate system.’ 31 Article 7 PA. 28

Climate change mitigation and the role of law  7 It is clear that adaptation and mitigation policies have to be developed together, so that they are mutually beneficial.32 In this regard, the IPCC states that ‘Many adaptation and mitigation options can help address climate change, but no single option is sufficient by itself. Effective implementation depends on policies and cooperation at all scales and can be enhanced through integrated responses that link mitigation and adaptation with other societal objectives.’33 Therefore, although this book focuses on mitigation law, the authors sometimes discuss the relationship with adaptation law. For a more detailed discussion of climate change adaptation law, we refer to the Research Handbook on Climate Change Adaptation Law.34

5

THE FOCUS OF THIS BOOK

What is the status of current climate change mitigation law around the world? How have emissions from the relevant GHG emitting sectors been addressed? What are the remaining legal challenges and barriers to climate change mitigation and how can they be overcome? These are the main questions that we address in this book. The book answers these questions from a primarily legal perspective. We do, however, take a broad view on law. In the field of climate change mitigation law, law and policy are intimately connected, as law is primarily (but not only) used as an instrument to curb GHG emissions. Furthermore, since market-based instruments play a pivotal role in mitigation policies, and since these policies also target consumer behaviour, there is no sharp boundary between law and socio-economic disciplines. Therefore, many chapters also discuss wider issues that are not strictly legal. The set-up of the book is as follows. The book has been divided into four parts. Part I deals with the architecture and governance of mitigation law with a focus on the international law framework. Chapter 2 takes stock of the evolving architecture of what can be described as ‘global climate law’. Complementing a traditional account of the history of the international legal regime for climate change, the chapter identifies seven overarching trends that have come to characterise the changing architecture of global climate law, namely: (i) the growing number of international forums addressing climate change; (ii) the softening of commitments; (iii) the changing nature of differentiation; (iv) the use of market-based instruments; (v) the rise of national climate change legislation; (vi) increasing climate-related litigation; and (vii) the growing importance of non-state actors. The chapter concludes by indicating that a diversity of governance approaches to climate change is to be expected to the extent that global aspirations to avoid dangerous climate change remain unachieved. Chapter 3 then deals with the role of the precautionary principle and scientific uncertainty in climate change mitigation. It analyses the implications of the precautionary principle on mitigation measures and highlights the specific features of climate change risks and interlinked See Chapter 18 of the IPCC’s Working Group II AR4: R. J. T. Klein et al., ‘Inter-Relations between Adaptation and Mitigation’ in M. L. Parry et al. (eds), Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Inter-governmental Panel on Climate Change (Cambridge University Press 2007) 745–777. 33 R. K. Pachauri et al., Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015) 26. 34 Jonathan Verschuuren (ed.), Research Handbook on Climate Change Adaptation Law (2nd edn, Edward Elgar Publishing 2022). 32

8  Research handbook on climate change mitigation law uncertainties. It explores how the decision-making process could better integrate these uncertainties. It argues that the decision to enact mitigation measures must be a political decision, as opposed to a purely legal one. Part II reviews domestic and regional mitigation laws and policies around the world: Europe, North America, Central and South America, Asia-Pacific, Middle East, and Africa. A separate chapter has been dedicated to the emerging economics of the BRICS (Brazil, Russia, India, China, South Africa). These chapters discuss the specific problems that the individual regions face in regard to climate change mitigation, and provide an overview of the international law context that is specific for the region, with a focus on the Paris Agreement and the respective NDCs in particular. Then for most of the regions, a comparative approach comparing the climate change mitigation approaches, including the relevant laws and policies, is adopted, with a focus on at least two jurisdictions per region. More precisely, Chapter 4 focuses on some core developments in EU climate legislation and policy. It examines the European climate law with the aim of achieving climate neutrality at the latest by 2050 and the establishment of financial approaches, such as the Taxonomy Regulation, as well as climate litigation at the European level. Moreover, the chapter examines the relationship of Union law and the Paris Agreement and its consequences for adjudication in the EU and national orders, such as the interpretation of what is to be understood by the ‘highest possible ambition’. Chapter 5 turns to the examination of the law and policy framework for climate change mitigation in the United States and Canada. As developed countries and large historical and current contributors of greenhouse gas emissions, these jurisdictions bear considerable responsibility to take strong action to mitigate climate change. As the chapter concludes, national mitigation policies in both countries, however, fall far short of this. The chapter describes and evaluates the respective national climate change mitigation policies with a view to explaining what political, structural, legal and economic factors cause them to take such different forms in the two neighbours. The chapter concludes that in both countries national mitigation policies are generally haphazard, fractious, and insufficient to satisfy their global responsibilities, and that robust policy action has been stymied over the past three decades in large measure because of political concerns about the economic costs of adopting mitigation measures and the outsized influence of fossil fuel interests. However, distinct legal, political and economic dynamics in the United States and Canada frustrate the development of effective national climate change mitigation policies for quite different reasons, meaning that one should expect their respective policy solutions to continue to be idiosyncratic into the future, even in moments of ideological alignment between their governments. Chapter 6 on climate change mitigation law and policy in Central and South America focuses on the issues that the region (in particular Brazil, Colombia and Mexico) faces in the process of implementing each country’s policies and regulations to mitigate climate change and comply with their nationally determined contributions. The main aspects relate to the crucial importance of international cooperation to achieve significant reductions in greenhouse gas emissions, an overview of the economic and political challenges and the opportunities to channel efforts for mitigation in the land use sector to promote sustainable GHG reductions, improve the living conditions of the population in rural areas and strengthen adaptation capacities across the region. Chapter 7 scrutinises 15 large or highly industrialised countries in the Asia-Pacific region, beginning with their recent greenhouse gas emissions and mitigation targets under the Paris

Climate change mitigation and the role of law  9 Agreement. The chapter then reviews the countries’ mitigation laws and policies and examines their mitigation ambition in comparative perspective. Several grounds of concern about the mitigation of greenhouse gas emissions in the Asia-Pacific emerge from this analysis. In brief, the developed countries in the region have little leftover capacity to reduce their emissions, whereas most of the Asia-Pacific’s developing countries appear intent on increasing their emissions through to 2030 – with some planning to continue emissions growth through to 2050. Of most immediate concern is that almost all developing countries in the region (Korea and Singapore being the exceptions) struggle to report their emissions fully and accurately. Therefore, they are not presently in a position to track their mitigation targets. Chapter 8 focuses on the Middle East. The region is of special interest, as it has heavily been affected by negative climate change impacts and on the other hand, it mainly relies on the exploitation of its natural resources such as oil and gas, which are sources of GHG emissions. Therefore, it is faced with a dilemma in addressing climate change issues. The NDCs and mitigation law and policies of the Islamic Republic of Iran and the State of Qatar will be analysed in detail, with the conclusion that both countries need technological assistance in order to achieve their respective climate targets. It is further concluded that the potential of achieving Iran’s targeted mitigation as indicated in its INDC and its national law and policies is not high, mainly because of international and unilateral sanctions which are imposed on the country and restrain transfer of technology and financial support. Chapter 9 turns to the analysis of climate change mitigation law and policy in Brazil, Russia, India, China and South Africa (i.e., the BRICS). It concludes that while all five countries are aiming high to decarbonise their economies, this happens largely at their own pace based on their national economic circumstances. In particular, China and India are expected to pay specific attention to climate change mitigation in the coming years. Chapter 10 discusses the law and policy documents in Africa. To date, countries in Africa have understandably focused on adaptation priorities, mindful of the high levels of vulnerability on the continent and its relatively low emissions profile. That notwithstanding, regional and national policies are increasingly emphasising the value and need for low carbon development, and the importance of international financial and technical support to do so. Legislative developments have also proliferated. There are now a number of sector-specific laws across multiple countries, including dedicated statutes and regulations on energy efficiency; energy generation and renewable energy; carbon pricing; forestry; and laws establishing dedicated climate change funds within Africa. A handful of countries have also either developed a framework climate change law or are in the process of developing one. This chapter explores the sectoral and framework laws that have been passed to date, focusing on the Kenyan Climate Change Act and the Ugandan Climate Change Bill, as well as the wider implications for regional climate change legal developments. Part III zooms in to cross-cutting issues and at the same time important legal tools that are applied with the aim of reducing GHG emissions, namely carbon trading and climate finance and climate litigation. Climate finance and carbon trading are both under pressure in the current times of crisis and government austerity, but at the same time receiving increased (legal and political) attention in several jurisdictions. Lawsuits are an inevitable part of any legal system and that is no different with climate change, which has become a central challenge of our time. Climate litigation is certainly on the rise all over the world and is gaining increasing relevance and importance as a mitigation tool. As in Part II, the chapters in Part III

10  Research handbook on climate change mitigation law also illustrate the international legal framework for these tools and several chapters then also compare at least two jurisdictions where these tools are of special importance. More precisely, Chapter 11 on climate finance examines the role of public and private finance in facilitating greenhouse gas abatement and climate mitigation, with a focus on the Green Climate Fund. Further, public funding instruments of transportation, utility financing of energy efficiency, the use of revenues from pollution taxes and allowance trading programmes, as well as the use of COVID recovery funds to aid carbon abatement, are elaborated on. Special attention is paid to green bonds, a newly emerging private financing mechanism. The chapter concludes that, while progress on climate finance has been made, the achievement of the mitigation (and adaptation) goals set out by the Paris Agreement requires a major increase in climate finance. Chapter 12 presents the international legal framework on carbon trading and tracks the development of prominent Emissions Trading Systems (ETS) at regional (EU) and at national level (China), and critically assesses their ability to incentivise transitions. The chapter pays particular attention to price support schemes, offset rules and leakage measures. With increasingly ambitious climate targets, it is expected that carbon leakage safeguards (conventionally free allocation to exposed sectors) will have to change in order to incentivise the transition towards a low carbon economy of energy-intensive and trade-exposed industry. In the alternative, border carbon adjustments are required. This chapter therefore also discusses border carbon adjustment measures under WTO rules. It concludes that the European rules were effective in protecting industry but not in incentivising a carbon transition of the economy and that many critical design elements of China’s national ETS are still unknown. Chapter 13 delves into the issue of climate litigation and its potential for mitigation. Climate litigation is exploding across the globe with over 1600 cases pending in various courts in over 30 countries. The claims are based on statutory and administrative law, constitutional law, common law, and international law. There has been a marked increase in ‘rights-based’ claims in the past few years. The results so far are mixed but there have been significant victories that have spurred stronger government measures to reduce greenhouse gas emissions, forced more robust assessment and disclosure of climate risks, slowed the pace of fossil fuel development, pressured banks and financial institutions to rethink investments in new fossil fuel infrastructure, and protected the natural systems serving as carbon sinks. It is concluded that litigation activities will rise further and future cases will expand the human rights basis for climate litigation, keep the pressure on governments or government agencies to increase their ambitions, pressure financial institutions to shift investment to cleaner forms of energy and transportation, and seek to hold the fossil fuel industry accountable for climate damage and abatement. Finally, Part IV discusses the sectors that are primarily targeted in climate change mitigation policies, as these sectors contribute significantly to GHG emissions: energy, transport, cities, industry, agriculture, forestry and other land uses, and waste management.35 This part also has a chapter on carbon dioxide removal, attributed to the fact that it has been argued that both the ‘Article 2(1)(a) [of the Paris Agreement] mitigation objective and its explanation in Article 4(1) have been read as an implicit recognition of the need for negative emissions technologies This largely reflects the sectoral approach taken by the IPCC that discusses the six sectors of energy supply; transport; buildings; industry; agriculture, forestry and other land use (AFOLU); and human settlements and infrastructure in its assessment reports. 35

Climate change mitigation and the role of law  11 (NETs) such as bioenergy with carbon capture and storage (BECCS)’.36 Individually the chapters offer thoughtful discussions of these sectors. Collectively they illustrate the wide range of strategies that could be adopted to meet the challenge of mitigating climate change on a sector-by-sector basis. Thereto, in its Fifth Assessment Report, the IPCC noted that ‘Mitigation options are available in every major sector. Mitigation can be more cost-effective if using an integrated approach that combines measures to reduce energy use and the greenhouse gas intensity of end-use sectors, decarbonize energy supply, reduce net emissions and enhance carbon sinks in land-based sectors.’37 Chapter 14 reviews the regulatory and policy instruments to promote decarbonisation in the energy sector. The chapter provides an overview on the policy, legislative and regulatory frameworks put in place to promote decarbonisation in the energy sector, with examples from the EU and the United States. In particular, it focuses on the promotion of renewable energy and energy efficiency. Chapter 15 reviews the mitigation activities in the transportation sector, consisting of aviation, terrestrial and marine shipping modes. It scrutinises the measures adopted on the international level for these sectors and provides an analysis of the mitigation-related law and policy framework of the three transportation modes. On aviation, the ‘basket of measures’ approach adopted in recent years by the International Civil Aviation Organization is canvassed. Terrestrial transportation, with little international regulation towards mitigating GHG emissions, whether under the UNFCCC framework or a single transnational organisation, is considered in its technical and social dimensions within states in an effort to reveal possibilities for the other two modes. Global ocean-going or international shipping is then assessed, including evaluation of the addition of climate change measures to a comprehensive air pollution control regime. The conclusion addresses prospective problems in shaping and applying the law to address greenhouse gas emissions across the sector as a whole. Chapter 16 plays tribute to the fact that cities are an increasingly visible actor in global climate governance with a significant potential to significantly contribute to climate change mitigation efforts. The comparative analysis of urban climate governance in São Paulo, Hamburg and Cape Town and its embeddedness in national legal frameworks shows that cities have a meaningful scope of action and instrumental ‘tool box’ to address climate change in the different jurisdictions. The case studies highlight a broad range of mitigation efforts but also several challenges. It is argued that future development of climate change mitigation law and policy at all levels should strengthen cities’ efforts in the low carbon transformation in line with the goals of the Paris Agreement. Chapter 17 turns to mitigation law and policy in the agriculture, forestry and other land use (AFOLU) sector. Although emissions from AFOLU are a large contributor to climate change, and although this sector has the potential to sequester large quantities of atmospheric CO2, there are few legal and policy instruments in place that specifically target these emissions and this sequestration potential. At the international level, the most relevant instrument is REDD+, which, however, is still being developed and for which large-scale implementation is still

Charlotte Streck, Paul Keenlyside and Moritz von Unger, ‘The Paris Agreement: A New Beginning’ (2016) 13 Journal for European Environmental & Planning Law 3, 10–11 as cited in Benoit Mayer, ‘Article 2 – Aims, Objectives and Principles’ in Geert van Calster and Leonie Reins (eds), The Paris Agreement on Climate Change – A Commentary (Edward Elgar Publishing 2021) 4.06. 37 Pachauri et al., above note 33 at 28. 36

12  Research handbook on climate change mitigation law lacking. At the regional level, the EU’s LULUCF Regulation and its Common Agricultural Policy offer some first legal measures aimed at reducing AFOLU emissions. The EU has embarked on an ambitious legislative process which will have a big impact on the AFOLU sector post 2030. Law seems especially relevant to safeguarding food security under climate change mitigation policies, to advancing climate-smart agriculture and agroforestry, to steering consumers’ dietary choices and to increasing the role of forests. Chapter 18 explores climate change mitigation options in the industrial sector. While many legal rules and paradigms work from the assumption that since the corporation is a legal person, it must have a ‘singular mind’, this chapter explores the alternative concept, that the corporation is still composed of many people and that corporate decisions are subject to the studies of voting theory, social choice theory, and anticommons decision structures. This chapter explores what that might mean for industry and corporate actors who are attempting to achieve carbon reduction strategies to enable climate change mitigation. Chapter 19 on waste management analyses the international and European Union waste management regime as it applies in the specific context of climate mitigation, as well as the implications for waste recovery operations and carbon capture and storage. At the international level, no common legal framework exists that manages waste comprehensively, as the focus is on end-of-pipe waste disposal issues. On the other hand, the EU aims to convert waste management policies to pursue the circular economy. Since CO2 will continue to act as a climate forcer for centuries, we cannot just focus on reducing new emissions. It is inevitable that we also must remove CO2 from the atmosphere. Chapter 20 outlines the scope of this challenge and its legal consequences. It outlines the need for GHG removal from the ambient atmosphere, overviews the strictures of international law that will shape the pace and scale of GHG removal at the transnational and domestic levels, and compares the approaches of two leading jurisdictions to implement effective GHG removal policies. As illustrated above, Parts III and IV do not focus on a specific domestic or regional legal system. Instead, we take a transnational, multilevel governance view, focusing on the international, the regional, and the domestic level, using examples from around the world. While Part II discusses the way in which domestic laws deal with mitigation, Parts III and IV transcend national legal specifics and thus offer a better view of the main issues to be addressed as well as potential solutions at a more generic level. Although this is the second edition of this Research Handbook, we would like to stress that we made a fresh start to it. New topics were added, new authors were approached and most chapters are new chapters or have been completely rewritten so as to have a fully up-to-date book.

6 CONCLUSIONS On an international level, the original treaty architecture for climate change mitigation has been supplemented, or even replaced by a ‘more complex, less clear-cut governance architecture’38 with ‘voluntary pledges, non-state actors and flexible policy instruments.39 It is, See Chapter 2. Ibid.

38 39

Climate change mitigation and the role of law  13 however, also argued that ‘this approach is needed in light of the urgency of the climate challenge, [where] arriving at practical solutions should arguably take precedence over formal preoccupations’.40 Looking at the practical implementation of international law, whereas most jurisdictions examined in this Handbook have adopted NDCs under the Paris Agreement, it also became apparent that most jurisdictions are far away from actually reaching their contributions, even though climate change mitigation-specific legislation has been adopted in almost all of the discussed jurisdictions. In the European Union, the ‘ambition of the European Green Deal – complement[s] and widen[s] the EU climate law acquis enormously’, even though it is hugely complex and presents challenges for implementation at Member State level.41 In the United States and Canada, ‘concerns about the economic costs of adopting mitigation policy measures and the outsized influence of fossil fuel interests have effectively stunted the development of robust climate change mitigation policy’.42 Achieving the climate goals in the Latin American region is conditioned on receiving appropriate financial assistance from developed countries and ‘emissions come with a high opportunity cost’.43 In the Asia-Pacific region, it emerges that whereas the developed countries in the region have little leftover capacity to reduce their emissions, the developing countries are ‘intent on increasing their emissions through to 2030—with some planning to continue emission growth through to 2050. Of most immediate concern is that almost all developing countries in the region (Korea and Singapore being the exception) struggle to report their emissions fully and accurately.’44 In the Middle East, whereas Iran and Qatar have submitted NDCs, the underlying mitigation plans are conditional upon lifting the economic sanctions (in the case of Iran) and on international support in the case of Qatar. Whereas Iran has submitted specific mitigation targets as part of its mitigation plan, Qatar ‘does not specify any target in its mitigation plan [but is] committed to present a national program to mitigate GHG emissions, taking into account their domestic capabilities’. A similar picture emerges for the BRICS countries. All five countries are ‘aiming high to decarbonize their economies at their own pace based on their national economic circumstances’.45 In order to realise the mitigation objectives of the different regions under the Paris Agreement, overarching tools such as climate finance, carbon trading and climate change litigation are crucial. These tools are discussed in Part II of the book. Climate finance is and has been ‘central to international efforts to limit and respond to climate change’.46 Even though private finance is growing and green financial markets are flourishing, the COVID-19 crises and the fact that key actors are not collaborating on global public finance still result in the scenario that only 20 per cent of the required financial assistance is available.47 On the other hand, it can be argued that the ‘recovery from the pandemic provides fresh opportunities to enhance both the fairness and the scale of climate finance’.48 Emissions trading instruments and carbon border adjustments are seen as another tool to mitigate emissions from covered Ibid. Chapter 4. 42 Chapter 5. 43 Chapter 6. 44 Chapter 7. 45 Chapter 9. 46 Chapter 11. 47 Chapter 11. 48 Chapter 11. 40 41

14  Research handbook on climate change mitigation law sectors. Several jurisdictions have implemented emission trading schemes (ETS) and carbon pricing instruments, even if they are different in design. For all of them it has turned out that ‘setting the right incentives is critical to foster economic transition’,49 as well as establishing how to deal with carbon leakage. Hence, ‘border carbon adjustments will be critical in a world where some jurisdictions have stronger climate ambitions than others’.50 Regarding the role of climate litigation, it can be concluded that litigation in itself is not going to lead to any considerable emissions reductions but plays an important role in ‘holding the government and private sector accountable for [their (in)] actions’.51 The sheer number of litigation cases around the world pay tribute to the fact that over the last decade, climate litigation has developed into an important tool in order to ‘force’ countries to implement climate mitigation law and policies. Looking at the individual sectors, it has been concluded that there is ‘no doubt’ that the impacts on the climate and its changes are linked to the ‘growth in human activities in the aftermath of the industrial revolution’.52 However, the long-term impacts are still uncertain, ‘partly resulting from a lack of knowledge of the climate systems and the limitations of scientific research’.53 The energy sector is one of the sectors with the biggest mitigation potential and under the umbrella of the ‘energy transition’, renewable energy projects and energy efficiency measures have been introduced around the world. Increasingly, however, the ‘cost-efficiency and the question of who is ultimately responsible for the costs involved in utilizing these sources’54 are being discussed alongside questions of equity. Further, regarding energy efficiency, it can be concluded that, whereas in the past the potential of efficiency measures was only poorly realised, in recent years ‘energy efficiency is not seen anymore only as a separate area of action, but instead it is resonating to other policy areas as well with a view to harnessing synergies between various policy measures’.55 The emission reduction attempts in the transportation sector are characterised by the fact that successful emission reductions taking place in the three modes of transportation – aviation, terrestrial and shipping – are ‘at risk of being outpaced by the overall increase’56 in the transportation sector’s activity. It is therefore concluded that the law ‘must be directed to the underlying factors, while pursuing incremental improvements in every aspect of transportation: mass movement in preference to individual, relentless effort to achieve efficiency, the modifying of user expectations and uses, and the exceptional problem of moving away from fossil fuel energy sources’.57 The role of cities in the architecture of inter- and transnational climate mitigation governance is increasingly important, even though the NDCs do not directly require municipalities to realise mitigation targets.58 However, further accessible funding mechanisms at state, national, supra- and international scales, ideally combined with the requirement of reaching GHG emis-

51 52 53 54 55 56 57 58 49 50

Chapter 12. Chapter 12. Chapter 13. Chapter 3. Chapter 3. Chapter 14. Chapter 14. Chapter 15. Chapter 15. Chapter 16.

Climate change mitigation and the role of law  15 sion reduction targets in line with the Paris Agreement, are needed in order to strengthen and realise the mitigation potential of cities. Regarding the AFOLU sector, it is surprising how ‘few legal and policy instruments [are] in place that specifically target these emissions and this sequestration potential’.59 At the international level, the REDD+ programme is still under development but seems already to be ‘rather far removed from large scale, global implementation’.60 The European Union is one of the jurisdictions that have developed an ambitious policy framework, but there also the concrete legal instruments still need to be developed. Although ‘industry’ is often thought to be a uniform sector that operates in a clear, rather hierarchical setting, it in fact is not. Corporations are very diverse and the outcome of decision-making processes on climate change mitigation strategies in individual corporations can be inefficient or errant.61 This implies that ‘stronger regulatory approaches that set more clear menus are recommended if policymakers seek to effectively change industrial behavior on climate change mitigation’.62 Regarding the waste sector, even if a common approach at the international level is missing and addressing climate mitigation is ‘not the main target of waste management laws’,63 the waste management legislation at international level includes ‘several specific anchors … with an important impact on climate change mitigation.’64 The reasons for the ‘(lack of) progress … lie elsewhere: in resources management; waste prevention; internalisation of environmental costs in all sources of energy and transport; etc.’65 The removal of surplus CO2 already present in the atmosphere is an emerging policy goal, and it is likely that this policy goal will remain with us for generations to come. There is a need for clear, consistent, and productive legal policy on greenhouse gas removals which will only grow in urgency if current efforts continue to produce inadequate emission reductions to prevent catastrophic climate damage to vulnerable populations and nations.66 One of the issues that deserves the attention of policymakers is the avoidance of unanticipated or undesired effects on social justice and sustainability.67 All in all, it can be concluded that, compared to the state of the art discussed in the first edition of this book, all actors, such as the international community and individual jurisdictions, but also the specific ‘high mitigation potential’ sectors, have stepped up their game, at least on paper. The Paris Agreement has given a much-needed push for the global community to formulate national mitigation targets and also strengthen the overarching instruments such as climate finance and carbon trading and pricing. More and more climate laws, policies and strategies emerge in the global arena. However, what is still lacking is actual implementation of the climate targets, pledges and strategies. The overall conclusion of this book is hence that we will most likely not be able to achieve the Paris Agreement goals without the individual

61 62 63 64 65 66 67 59 60

Chapter 17. Chapter 17. Chapter 18. Chapter 18. Chapter 19. Chapter 19. Chapter 19. Chapter 20. Chapter 20.

16  Research handbook on climate change mitigation law jurisdictions substantially stepping up their efforts in order to reach their NDCs and reducing emissions from all sectors.

2. The evolving architecture of global climate law Harro van Asselt, Michael Mehling and Kati Kulovesi

INTRODUCTION More than 30 years of international cooperation to tackle climate change have not yet produced the desired results in terms of climate stabilisation. Even though there is a solid scientific basis for international action to mitigate the causes and impacts of climate change, and progress has been made in cutting emissions, there is still a gap between pledged emission reductions and the goal included in the Paris Agreement of keeping global average temperature increases well below 2 °C relative to pre-industrial times while pursuing efforts to stay below 1.5 °C.1 The Intergovernmental Panel on Climate Change (IPCC) suggests that to keep global warming below 1.5 °C, carbon dioxide (CO2) emissions need to fall 45 per cent between 2010 and 2030, and reach ‘net zero’ by the middle of this century. To achieve 2 °C, emissions need to go down by 25 per cent by 2030, and ‘net zero’ should be reached by 2070.2 The required transformations across all major sectors of the economy (energy, land use, transport, buildings, and industry) will be ‘unprecedented in terms of scale’ and require ‘deep emissions reductions in all sectors, a wide portfolio of mitigation options and a significant upscaling of investments in those options’.3 Law and legal frameworks play a critical role in enabling or hindering the achievement of these ambitious goals. At the international level, the regime established by the 1992 United Nations Framework Convention on Climate Change (UNFCCC) has offered the foundation for further international cooperation. Climate diplomacy has been strengthened by the 2015 Paris Agreement, which plays a crucial role in the overall legal architecture by establishing the global goals and providing a legal framework for regularly updated national mitigation targets. Achieving these targets often requires new domestic legislation, including national climate laws establishing legally binding national mitigation goals. While climate-specific legal frameworks have thus emerged, it is increasingly clear that the relevant law on climate change not only spans multiple levels and a wide range of countries, but also cuts across different issue areas and involves a diverse set of actors, all contributing to a multipolar but densely connected legal space with planetary scope. Paris Agreement (adopted 12 December 2015; entered into force 4 November 2016) 55 ILM 740, Art. 2(1)(a). On the ‘emissions gap’, see United Nations Environment Programme (UNEP), Emissions Gap Report 2021 (UNEP 2021); and Niklas Höhne and others, ‘Emissions: World Has Four Times the Work or One-Third of the Time’ (2020) 579 Nature 25. The gap may be closing following the return of the United States to the Paris Agreement, with the Climate Action Tracker estimating that warming could be kept to 2.4 °C. Importantly, this estimate is based on commitments rather than actions. See Climate Action Tracker, ‘Warming Projections Global Update’ (May 2021) https://​climateactiontracker​.org/​ documents/​853/​CAT​_2021​-05​-04​_Briefing​_Global​-Update​_Climate​-Summit​-Momentum​.pdf. 2 IPCC, ‘Summary for Policymakers’ in Valérie Masson-Delmotte and others (eds), Global Warming of 1.5 °C (IPCC 2018) 1, 12. 3 Ibid. 15. 1

17

18  Research handbook on climate change mitigation law Against this background, this chapter examines the evolving architecture of what some have termed ‘global climate law’.4 Biermann and colleagues define ‘architecture’ as ‘the overarching system of public and private institutions that are valid or active in a given issue area of world politics. This system comprises organisations, regimes, and other forms of principles, norms, regulations, and decision-making procedures.’5 As explained in Section 1, we use the term ‘global climate law’ in a descriptive – rather than analytical or normative – fashion so as to cover an emerging body of law that dynamically blends national and international law, public and private law, hard and soft law, and state and non-state law. To examine these shifts in the architecture of global climate law, the chapter first puts forward several defining features of global climate law (Section 1). It then offers a short history of the international legal regime for climate change (Section 2). It complements this more traditional account by analysing seven cross-cutting trends that characterise the changing architecture of global climate law: (i) the growing number of international forums addressing climate change; (ii) the softening of commitments; (iii) the changing nature of differentiation; (iv) the use of market-based instruments; (v) the rise of national climate change legislation; (vi) increasing climate-related litigation; and (vii) the growing importance of non-state actors (Section 3).

1

WHAT IS GLOBAL CLIMATE LAW?

Any attempt to define ‘global climate law’ has to contend with the multiple layers of meaning embedded in each of its constituent elements. First, it requires an understanding of the relatively novel and, to some extent, contested idea of ‘global law’ before that can then be further traced to its intersection with climate change. Born out of scholarly engagement with the accelerating forces of globalisation,6 the notion of global law emerged as an effort to accommodate the legal ramifications of growing political, economic, and cultural interconnectedness in contemporary global affairs.7 More than merely adjusting for the physical and socio-economic realities of globalisation, however, global law describes a conception of law that is itself evolving in response. Definitions of global law vary and have elicited criticism

Daniel A. Farber and Marjan Peeters, ‘The Emergence of Global Climate Law’ in Daniel A. Farber and Marjan Peeters (eds), Climate Change Law (Edward Elgar Publishing 2016) 687. The notion of global climate law can be connected to that of ‘global environmental law’, which has been defined as ‘an evolving set of substantive principles, tools, and concepts derived from elements of national and international environmental law’. See Tseming Yang and Robert V. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly 615, 664. For further discussion of global law and global climate law, see Section 1. 5 Frank Biermann and others, ‘The Fragmentation of Global Governance Architectures: A Framework for Analysis’ (2009) 9 Global Environmental Politics 14, 15. 6 See, e.g. William L. Twining, Globalisation and Legal Theory (Northwestern University Press 2000). 7 Neil C. Walker, The Intimations of Global Law (Cambridge University Press 2015); see also Giuliana Z. Capaldo, The Pillars of Global Law (Ashgate 2008); Rafael Domingo, The New Global Law (Cambridge University Press 2010); Shavana Musa and Eefje J. A. de Volder (eds), Reflections on Global Law (Brill 2013). 4

The evolving architecture of global climate law  19 for their inconsistency and fluid boundaries,8 yet they generally share an acknowledgment of weakening divides between traditionally disparate categories of domestic and international law, public and private norms, and state and non-state actors.9 Many of the same dynamics are evident in the legal response to climate change. Climate change is the quintessential ‘global’ challenge, its causes and effects ubiquitous, with little regard for conventional distinctions between different planes of governance or public and private agency. In consequence, the body of norms related to climate change traverses national and international law, recruits public and private actors, and draws on traditional regulation as well as flexible market incentives. While that makes global law a uniquely suited analytical framework for this chapter, it should not be understood as a discrete system of norms or legal practice.10 Accordingly, the ‘global’ in ‘global climate law’ serves as a purely descriptive term to capture the ‘plurality of legal mechanisms relying on a plurality of legal orders’11 which, collectively, define the disruptive intersection of law and climate change.12 If the ‘global’ in ‘global climate law’ alludes to its diversity of sources, actors, and instruments, the ‘climate law’ in ‘global climate law’ is hardly more tangible or determinate. Indeed, the existence of climate law as a distinct field of law has itself been the subject of debate. Acknowledging an autonomous body of law has consequences that extend beyond mere academic interest,13 making this a question with practical relevance; still, for climate law the verdict on this question still seems to be out. While some commentators have argued in favour of a new legal discipline,14 others see it as ‘nothing more or less than the application of national

Straddling related concepts such as transnational law, polycentrism, and legal pluralism, global law has been criticised for being used ‘without adequate conceptual work on what the term covers’; see Gregory C. Shaffer, ‘Transnational Legal Ordering and State Change’ in Gregory C. Shaffer (ed.), Transnational Legal Ordering and State Change (Cambridge University Press 2012) 1, 11; even a leading proponent concedes that ‘there has been little serious discussion – and little agreement where there has been discussion – on what is meant by “global law”’; Walker (n. 7) 1. 9 In one definition, for instance, global law is ‘distinguished from classic national law in that it is not limited by national boundaries and by the lack of territorial bases, oftentimes by networks of invisible actors, such as markets, professional communities, or social networks’; Marcelo D. Varella, Internationalization of Law: Globalization, International Law and Complexity (Springer 2014) 318. 10 Describing it as an ‘empirical mapping of scholarly trends’; Richard Collins, ‘The Slipperiness of “Global Law”’ (2017) 37 Oxford Journal of Legal Studies 714, 719; note, however, the claim that the ‘emerging global … law is a legal order in its own right’; Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in Gunther Teubner (ed.), Global Law without a State (Aldershot 1997) 3, 4. 11 Elisa Morgera, ‘Bilateralism at the Service of Community Interests? Non-Judicial Enforcement of Global Public Goods in the Context of Global Environmental Law’ (2012) 23 European Journal of International Law 743, 746. 12 Elizabeth Fisher, Eloise Scotford and Emily Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80 Modern Law Review 173. 13 For instance, it can send a political signal and legitimise a topic, facilitate analysis and communication of the law, and render its application more efficient than a disjointed patchwork of unrelated rules and doctrines; see J. B. Ruhl and James E. Salzman, ‘Climate Change Meets the Law of the Horse’ (2013) 62 Duke Law Journal 975, 985. 14 See, thus, Jacqueline Peel, ‘Climate Change Law: The Emergence of a New Legal Discipline’ (2008) 32 Melbourne University Law Review 922, 923 (‘a distinctive body of legal principles and rules identified as “climate change law”’); similarly John C. Dernbach and Seema Kakade, ‘Climate Change Law: An Introduction’ (2008) 29 Energy Law Journal 1, 1 (‘Climate change law is a new and rapidly developing area of law’). 8

20  Research handbook on climate change mitigation law and international law to climate problems’.15 In perhaps the most rigorous attempt to address this question, two scholars once concluded that climate change was not sufficiently transformational to warrant ‘sweeping doctrinal change’ that would accompany an entirely new field of law.16 Rather than assert the emergence of a separate system of norms, an earlier version of this chapter therefore argued for a pragmatic approach, in which ‘climate law’ was merely an articulation of the sum of legal rules, principles and instruments that pertain to climate change, both in terms of addressing its causes as well as protecting against its impacts.17 That such a body of norms with a degree of substantive coherence exists and can be usefully distinguished is attested by the emergence of a vibrant community of scholars and practitioners who identify themselves as climate lawyers.18 Preoccupation with climate change has been so prolific in legal scholarship, in fact, that it has engendered dedicated journals, monographs, and specialised institutes and course programmes at a number of law schools.19 Some observers have even criticised the ascendancy of scholarship at the intersection of law and climate change for ‘crowding out’ more traditional environmental concerns.20 Be that as it may, it introduces the third challenge in defining ‘global climate law’, and that is the transversal nature of its ‘climate’ dimension. Aside from commandeering resources and scholarly interest to the possible detriment of other areas of study, the level of attention accorded to climate change in legal scholarship, policy development and jurisprudence – which may seem justified by the broad scope and magnitude of the underlying challenge – also reflects a deeper structural predicament, namely the overlap of climate law with numerous other issue areas. Because of its transversal nature, climate change has prompted the adoption of new norms across a wide range of legal sectors, such as environmental law, energy law, financial services regulation and planning law, while also encroaching on core areas of law such as constitutional, administrative, tort and property law. Because of its historical emergence as an environmental concern, for instance, climate change has commonly been framed as a problem of environmental law, with ensuing rule-making often based on existing legislative and regu-

15 Navraj Singh Ghaleigh, ‘The What, How and Where of Climate Law’ in Raphael J. Heffron and Gavin F. M. Little (eds), Delivering Energy Law and Policy in the EU and US: A Reader (Edinburgh University Press 2016) 111; similarly Daniel Bodansky, Jutta Brunnée, and Lavanya Rajamani, International Climate Change Law (Oxford University Press 2011) 11 (‘we do not mean to suggest that it is a discrete body of law with its own sources, methods of law-making, and principles, or that it is a self-contained regime’). 16 Ruhl and Salzman (n. 13) 1013. 17 Harro van Asselt, Michael A. Mehling, and Clarisse Kehler Siebert, ‘The Changing Architecture of International Climate Change Law’ in Geert Van Calster, Wim Vandenberghe and Leonie Reins (eds), Research Handbook on Climate Change Mitigation Law (1st edn, Edward Elgar Publishing 2014) 1, 5. 18 As a matter of social fact, acknowledgment of a cohesive body of norms within the epistemic community of legal professionals can be an indicator for the emergence of a new area of law; see Todd S. Aagaard, ‘Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy’ (2010) 95 Cornell Law Review 221, 242. 19 For a survey of taught programmes, see Michael A. Mehling, Harro van Asselt, Kati Kulovesi and Elisa Morgera, ‘Teaching Climate Law: Trends, Methods, and Outlook’ (2020) 32 Journal of Environmental Law, 417. 20 Discussing this critique Chris Hilson, ‘It’s All About Climate Change, Stupid! Exploring the Relationship between Environmental Law and Climate Law’ (2013) 25 Journal of Environmental Law 359, 361.

The evolving architecture of global climate law  21 latory powers for pollution control.21 Such material overlap has implications for how climate change is addressed through law, but also has repercussions for other legal regimes.22 It also gives rise to substantial methodological challenges, as a growing body of scholarly endeavour attests.23 It should perhaps come as no surprise, therefore, that a phenomenon which has been designated a ‘super-wicked problem’24 also renders it particularly demanding as an area of academic enquiry. While that suggests the utility of interdisciplinary approaches to adequately capture the full range of considerations relevant to the legal response to climate change25 – as borne out, for instance, by the rise in scholarship applying methods from the social sciences to the study of climate change and human rights26 – it also introduces a risk of introducing the value judgments, ideological orientations and ontological assumptions often underlying those other disciplines.27 Overall, thus, ‘global climate law’ defies a simple definition: each of its constituent elements is, in itself, ambiguous or contested. Unlike established areas of law, many of which have been shaped through systematic application and development over extended periods of time, the legal response to climate change has developed in a far shorter and more arbitrary manner, often triggered by emerging needs and political pressures. As a result, this body of norms neither displays the organised structure, nor the internal consistency and doctrinal strength, of more traditional areas of law. Its boundless geographic scope and virtually ubiquitous origins and impacts, coupled with an almost indefinite time horizon, render it particularly susceptible to the disruptive forces that have engendered conceptions of global law; but that, in turn, also

21 John C. Nagle, ‘Climate Exceptionalism’ (2010) 40 Environmental Law 53, 88; compelling reasons have been offered as to why this link to environmental law may be counterproductive, however, narrowing the options available to society in the struggle against a pervasive global threat: Cinnamon P. Carlarne, ‘Delinking International Environmental Law and Climate Change’ (2014) 4 Michigan Journal of Environmental and Administrative Law 1, 4. 22 Duncan French and Tawhida Ahmed, ‘Situating Climate Change in (International) Law: A Triptych of Competing Narratives’ in Stephen Farrall, Tawhida Ahmed and Duncan French (eds), Criminological and Legal Consequences of Climate Change (Hart 2012) 243. 23 See, for example, Cinnamon P. Carlarne, ‘Exploring Methodological Challenges within the Context of Climate Change Law and Policy’ (2011) 105 Proceedings of the Annual Meeting of the American Society of International Law 255; Duncan French and Lavanya Rajamani, ‘Climate Change and International Environmental Law: Musings on a Journey to Somewhere’ (2013) 25 Journal of Environmental Law 437. 24 Climate change has been designated a ‘super-wicked problem’ because it is characterised by contingent definitions and understandings of the problem, vastly asymmetrical interests and capacities in identifying solutions, a virtually open-ended time horizon, and unprecedented scale and economic cost. See Kelly Levin and others, ‘Overcoming the Tragedy of Super Wicked Problems: Constraining Our Future Selves to Ameliorate Global Climate Change’ (2012) 45 Policy Sciences 123; and Richard Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’ (2009) 94 Cornell Law Review 1153. 25 Carlarne (n. 23) 255. 26 See, for example, the contributions in Sébastien Duyck, Sébastien Jodoin and Alyssa Johl (eds), Routledge Handbook of Human Rights and Climate Governance (Routledge 2020). 27 For discussion, see Johannes A. M. Klabbers, ‘The Relative Autonomy of International Law or the Forgotten Politics of Interdisciplinarity’ (2005) 1 Journal of International Law and International Relations 35, 37.

22  Research handbook on climate change mitigation law exposes it to the same vulnerabilities that global law suffers from in terms of its normativity, legitimacy and accountability.28 Numerous trends described in later sections of this chapter underscore the complex challenges that climate change poses to conventional understandings of law and its function in society, from fragmentation and the erosion of formality to the ascendance of private actors and an evolving role of public authority. Each of these developments is occurring for a reason, and often reflects intractable constraints at the level of domestic and international politics. For lawyers, however, it also raises uneasy questions about the importance of law as a form of social order that is distinct from other norms. As the pressures resulting from climate change continue to intensify, it is difficult to predict how law will evolve in response. Across all layers of the legal system, the balance between its conservative dynamic – enabling and perpetuating those behaviours that have contributed to climate change – and a progressive dynamic, which compels the scale of transformation needed to address the climate challenge, will have to be fundamentally recalibrated. Many established tenets of law will strain under the weight of the unfolding climate crisis. Ironically, just when the rule of law with its material and procedural guarantees might seem to matter most, it may thus prove to be at its frailest.

2

THE INTERNATIONAL CLIMATE REGIME AFTER THREE DECADES

Negotiations for the UNFCCC started in the lead-up to the 1992 United Nations (UN) Conference on the Environment and Development in Rio de Janeiro, and the Convention entered into force in 1994. Three decades later, the UNFCCC continues to play an important role as the foundation of the UN climate regime. Typically for a framework convention,29 it sets out the regime’s general goals and obligations, creates the basic institutional structures and provides the procedures for the adoption of more detailed obligations in new protocols.30 The regime has subsequently evolved significantly through the 1997 Kyoto Protocol31 and the 2015 Paris Agreement,32 as well as through the considerable body of droit dérivé33 in the form of decisions adopted by the Conference of the Parties (COP) of the UNFCCC and the respective governing bodies of the Kyoto Protocol and Paris Agreement. The ultimate objective of the UNFCCC is to achieve the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic inter-

See Section 3.7 below, as well as the discussion in Kati Kulovesi, Michael Mehling and Elisa Morgera, ‘Global Environmental Law: Context and Theory, Challenge and Promise’ (2019) 8 Transnational Environmental Law 405, 422–9 with further references. 29 Philippe Sands and others, Principles of International Environmental Law (4th edn, Cambridge University Press 2018) 106. 30 Ibid. 31 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997; entered into force 16 February 2005) 2303 UNTS 148 (Kyoto Protocol). 32 Paris Agreement (n. 1). 33 Pierre-Marie Dupuy and Jorge E. Viñuales, International Environmental Law (2nd edn, Cambridge University Press 2018) 41–3. 28

The evolving architecture of global climate law  23 ference with the climate system’.34 In the unadopted 2009 Copenhagen Accord,35 as well as in the 2010 Cancún Agreements,36 this important but abstract objective was made more concrete through references to avoiding global average temperature increases of more than 2 °C below pre-industrial levels. They also mentioned the 1.5 °C goal, which was important for many vulnerable developing countries. As noted above, the Paris Agreement set out an even more ambitious objective of limiting temperature increase to ‘well below’ 2 °C and ‘pursuing efforts’ to limit it to 1.5 °C.37 Furthermore, it included the objectives of increasing the ability to adapt to climate change and of making global finance flows consistent with a pathway toward low greenhouse gas emissions and climate-resilient development.38 Subsequently, the 2018 IPCC Special Report on Global Warming of 1.5 °C has clearly spelled out the significant differences between the 2 and 1.5 °C goals in terms of climate impacts. As a result, many states and non-state actors have adopted the 1.5 °C goal as their objective, along with the goal of achieving carbon neutrality by 2050, as also called for by the Paris Agreement.39 As a framework convention, the UNFCCC lacks ‘bite’ in the sense of specific and time-bound emission limitation or reduction targets. The main deliverable from the first COP in 1995 was therefore a mandate to negotiate ‘a protocol or another legal instrument’ to establish time-bound, quantified emission targets for developed countries while not introducing any new commitments for developing countries.40 Building on this mandate, the 1997 Kyoto Protocol emphasised the principle of common but differentiated responsibilities and respective capabilities (CBDRRC) and established a strong legal ‘firewall’ between developed (Annex I) and developing (non-Annex I) country mitigation commitments. This strictly bifurcated approach to climate change mitigation was deeply controversial,41 not least because there was no system for a country to ‘graduate’ from the non-Annex I status even if both the greenhouse gas emissions and economies in emerging economies, such as China, were growing rapidly. The ‘firewall’ between Annex I and non-Annex I mitigation commitments was the main reason why the United States government decided in 2001 not to ratify the Kyoto Protocol. Lack of agreement on how to reform it was one of the key reasons why the high-profile 2009 UN Climate Change Conference in Copenhagen failed to adopt a new climate treaty to succeed the Kyoto Protocol, even if the Copenhagen Accord no longer used language of Annex I and

34 United Nations Framework Convention on Climate Change (adopted 9 May 1992; entered into force 21 March 1994) 1771 UNTS 163 (UNFCCC), Art. 2. 35 UNFCCC, ‘Decision 2/CP.15, Copenhagen Accord’ UN Doc. FCCC/CP/2009/11/Add.1 (30 March 2010). 36 UNFCCC, ‘Decision 1/CP.16, Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ UN Doc. FCCC/CP/2010/7/Add.1 (15 March 2011). 37 Paris Agreement (n. 1) Art. 2(1)(a). 38 Ibid. Art. 2(1)(b) and (c); see Halldór Thorgeirsson, ‘Objective (Article 2.1)’ in Daniel Klein and others (eds), The Paris Agreement on Climate Change: Analysis and Commentary (Oxford University Press 2017) 123, 123. 39 Paris Agreement (n. 1) Art. 4(1). On the diffusion of net zero targets, see Richard Black and others, ‘Taking Stock: A Global Assessment of Net Zero Targets’ (Energy & Climate Intelligence Unit and Oxford Net Zero 2021). 40 UNFCCC, ‘Decision 1/CP.1, The Berlin Mandate: Review of the Adequacy of Article 4, Paragraph 2(a) and (b), of the Convention, Including Proposals Related to a Protocol and Decisions on Follow-up’ UN Doc. FCCC/CP/1995/7/Add.1 (6 June 1995) preamble. 41 Lavanya Rajamani and Emmanuel Guérin, ‘Central Concepts in the Paris Agreement and How They Evolved’ in Klein and others (n. 38) 74, 82ff.

24  Research handbook on climate change mitigation law non-Annex I countries. During negotiations for the Paris Agreement, however, consensus was finally found on how the interpretation of the CBDRRC principle and approach to differentiation should evolve. Thus, under the Paris Agreement all countries fall under the same mitigation regime albeit with flexibility that considers the CBDRRC while also taking into consideration countries’ national circumstances (see further Section 3.3). Other key issues shaping the UN climate regime over the past 30 years include the legal nature and ambition of countries’ mitigation commitments.42 The legal nature of mitigation commitments has been controversial from the beginning of the UN climate negotiations, and the regime’s evolution has been shaped by the competing demands for legally binding emission reduction targets and a top-down approach on the one hand, and calls for national autonomy and a bottom-up approach on the other. As discussed in detail in Section 3.2, the Paris Agreement has shifted the emphasis toward a bottom-up approach, while also including certain top-down features. In terms of ambition, discussions under the UN climate regime have gradually evolved from fierce debates during the early years on whether climate science provided a strong enough basis for action43 to the current focus on how to close the gap between the emission reductions pledged and those needed to achieve the 1.5/2 °C goal. The ‘emissions gap’ problem was acknowledged during the negotiations, and the Paris Agreement therefore includes an ambition or ratcheting mechanism designed to gradually align countries’ mitigation pledges with the long-term temperature goals. Its key elements include the regular updating of mitigation targets, contained in parties’ nationally determined contributions (NDCs), at five-year intervals and the requirements that each new target represents ‘progression’ and reflects a party’s ‘highest possible ambition’.44 Other elements of the ambition mechanism include countries’ regular reporting on emissions as well as the implementation and achievement of the NDCs; and a process known as the global stocktake to evaluate collective progress towards the Paris Agreement’s goals every five years.45 As of 2021, the first round of updates and revisions of parties’ NDCs is underway and the first global stocktake is scheduled to conclude in 2023. As this overview of key issues shaping the UN climate regime in the past 30 years shows, the emphasis has clearly been on mitigation. However, the importance of other issues has steadily increased. Notably, adaptation to the negative impacts of climate change and loss and damage caused by climate change impacts are being given more attention than a decade ago, and the Paris Agreement includes dedicated provisions on both issues.46 The relevant institutional framework has also been strengthened through the creation of the Adaptation Committee in 201047 and the Warsaw International Mechanism for Loss and Damage in 2013.48

42 Daniel Bodansky, ‘A Tale of Two Architectures: The Once and Future U.N. Climate Regime’ in Hans-Joachim Koch and others (eds), Climate Change and Environmental Hazards Related to Shipping: An International Legal Framework (Brill 2013) 35. 43 Farhana Yamin and Joanna Depledge, The International Climate Change Regime. A Guide to Rules, Institutions and Procedures (Cambridge University Press 2004) 62. 44 Paris Agreement (n. 1) Art. 4(3). See Rajamani and Guerin (n. 41) 78. 45 Paris Agreement (n. 1) Art. 14. 46 Ibid. Arts 7 and 8. The Agreement also includes two adaptation-related goals: ibid. Arts 2(1)(b) and 7(1). 47 Decision 1/CP.16 (n. 36) para. 20. 48 UNFCCC, ‘Decision 2/CP.19, The Warsaw International Mechanism for Loss and Damage Associated with Climate Change’ UN Doc. FCCC/CP/2013/10/Add.1 (31 January 2014).

The evolving architecture of global climate law  25 Climate finance49 and technology50 have been important priorities for developing countries from the beginning, and the relevant institutional structures and work streams have gradually evolved over the past three decades. Some of the key milestones include the 2009 Copenhagen Accord,51 whereby developed countries promised to mobilise US$100 billion of funding annually from 2020 onwards from a variety of sources, and which contained political agreement on the establishment of the Green Climate Fund and balanced allocation of funding for adaptation and mitigation.52 These political agreements were formally adopted through the 2010 Cancún Agreements, which also created the Standing Committee on Climate Finance tasked with assisting the COP in managing the Convention’s Financial Mechanism and improving coordination and coherence in the delivery of climate finance. The Paris Agreement is important in that it reflects a broader understanding of climate finance, not limited to public funding from developed countries53 but also as a collective global effort. The Agreement points towards the need to consider financial flows in a comprehensive manner and its general goals include making finance flows consistent with climate policy objectives.54 In addition, reporting obligations related to climate finance have been strengthened through the Paris Agreement and the ‘Paris Rulebook’.55 In the context of the adoption of the Paris Agreement, countries also agreed to negotiate a new quantified climate finance mobilisation goal prior to 2025.56 As for technology, the institutional framework has also evolved through the establishment of the Technology Mechanism consisting of the Technology Executive Board and the Climate Technology Centre and Network in 2010.57

3

TRENDS IN GLOBAL CLIMATE LAW

To explore the evolution of global climate law, this section presents an overview of seven key trends that both influence and are affected by developments in the UN climate regime. A better understanding of these trends is crucial for appreciating the shifts in the wider architecture of global climate law.

See Yulia Yamineva and Kati Kulovesi, ‘The New Framework for Climate Finance under the United Nations Framework Convention on Climate Change: A Breakthrough or Empty Promise?’ in Erkki Hollo, Kati Kulovesi and Michael Mehling (eds) Climate Change and the Law (Springer 2013) 191, 194ff. 50 Stephen Minas, ‘The Paris Agreement’s Technology Framework and the Need for Transformational Change’ (2020) 14 Carbon & Climate Law Review 241. 51 See Alexander Zahar, Climate Change Finance and International Law (Routledge 2016) 3–8. 52 Decision 1/CP.16 (n. 36) para. 102 and Appendix III. 53 Jorge Gastelumendi and Inka Gnittke, ‘Climate Finance’ in Klein and others (n. 38) 239, 239. See also Michael Mehling, ‘Article 9: Finance’ in Geert Van Calster and Leonie Reins (eds), The Paris Agreement on Climate Change: A Commentary (Edward Elgar Publishing 2021) 218. 54 Paris Agreement (n. 1) Art. 2(1)(c). 55 UNFCCC, ‘Decision 18/CMA.1, Modalities, Procedures and Guidelines for the Transparency Framework for Action and Support Referred to in Article 13 of the Paris Agreement’ UN Doc. FCCC/ PA/CMA/2018/3/Add.2 (19 March 2019) Annex. See Harro van Asselt and Kati Kulovesi, ‘Article 13: Enhanced Transparency Framework for Action and Support’ in Van Calster and Reins (n. 53) 302. 56 UNFCCC, ‘Decision 1/CP.21, Adoption of the Paris Agreement’ UN Doc. FCCC/CP/2015/10/ Add.1 (29 January 2016) para 25. 57 Decision 1/CP.16 (n. 36) para. 117. 49

26  Research handbook on climate change mitigation law 3.1 Fragmentation The drivers of climate change, as well as its impacts across the world, are intrinsically linked to nearly all sectors of society. One of the major trends in global climate law in the past decades has therefore been an increasing relevance of international institutions beyond the UNFCCC and a certain degree of fragmentation. Existing institutions have begun to acknowledge the interlinkages between their respective issue areas and the climate problem, a trend that can most clearly be observed in other areas of international environmental law. For instance, since its inception, the Montreal Protocol on ozone layer depletion has helped to mitigate climate change.58 Initially this was linked to the fact that some ozone-depleting substances are also powerful greenhouse gases. Later on, the realisation that substitutes used for ozone-depleting substances were also important climate pollutants led to growing activity by parties to the Montreal Protocol, which adopted a decision in 2007 to accelerate the phase-out of the consumption and production of one of the substitutes, hydrochlorofluorocarbons.59 This was followed by an amendment to the Protocol in 2016 to phase out another major category of greenhouse gases, hydrofluorocarbons (HFCs).60 The overall mitigation effects of these measures is potentially significant, with the HFC amendment projected to lead to 0.2–0.4 °C of avoided warming.61 Parties to the Convention on Biological Diversity62 have also become increasingly aware of the interlinkages with the climate regime, and have adopted a series of decisions tackling biodiversity-related aspects of climate change, such as addressing emissions from deforestation and geoengineering.63 Some sectoral international institutions have also pursued mitigation measures. The International Civil Aviation Organization adopted a global goal of improving annual average fuel efficiency by 2 per cent and an aspirational goal of keeping global carbon emissions from 2020 onwards at the same level (i.e. ensuring carbon-neutral growth).64 In October 2016, it further adopted a market-based mechanism – the Carbon Offsetting and Reduction Scheme for International Aviation – to offset emissions growth in the sector from 2020 onwards. Another sectoral institution, the International Maritime Organization, adopted a series of measures to 58 Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987; entered into force 1 January 1989) 1522 UNTS 3. 59 Montreal Protocol, ‘Decision XIX/6, Adjustments to the Montreal Protocol with Regard to Annex C, Group I, Substances (Hydrochlorofluorocarbons)’ UN Doc. UNEP/OzL.Pro.19/7 (21 September 2007). 60 Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 15 October 2016; entered into force 1 January 2019) http://​conf​.montreal​-protocol​.org/​meeting/​mop/​mop​ -28/​final​-report/​English/​Kigali​_Amendment​-English​.pdf. 61 World Meteorological Organization (WMO) and others, Scientific Assessment of Ozone Depletion: 2018 (WMO 2019) ES.22. 62 United Nations Convention on Biological Diversity (adopted 5 June 1992; entered into force 29 December 1992) 1760 UNTS 79. 63 See, for example, CBD, ‘Decision X/33, Biodiversity and Climate Change’ UN Doc. UNEP/CBD/ COP/10/27 (20 January 2011). See further Harro van Asselt, The Fragmentation of Global Climate Governance: Consequences and Management of Regime Interactions (Edward Elgar Publishing 2014) 119–57; and Sandrine Maljean-Dubois and Matthieu Wemaëre, ‘Biodiversity and Climate Change’ in Elisa Morgera and Jona Razzaque (eds), Biodiversity and Nature Protection Law (Edward Elgar Publishing 2017) 295. 64 See, for example, Beatriz Martinez Romera, Regime Interaction and Climate Change: The Case of International Aviation and Maritime Transport (Routledge 2017).

The evolving architecture of global climate law  27 address shipping emissions, including a mandatory Energy Efficiency Design Index for new ships and a Ship Energy Efficiency Management Plan for all ships. Although the organisation also agreed on a long-term strategy for reducing shipping emissions, its impact on the decarbonisation of the sector remains unclear.65 In addition to international environmental law, climate change considerations now feature in legal regimes as diverse as international trade law,66 human rights law67 and the law of the sea.68 Moreover, governments are increasingly cooperating through limited-membership initiatives and coalitions, both within and outside the context of the UNFCCC. Within the UNFCCC, the informal ‘High Ambition Coalition’ – bringing together developed and developing countries – played a crucial role in securing the adoption of the Paris Agreement.69 Outside the UNFCCC, a range of ‘climate clubs’,70 involving national and subnational governments alongside private sector and civil society organisations, have emerged on a variety of issues, such as the Climate and Clean Air Coalition, focusing on short-lived climate pollutants,71 and the Carbon Pricing Leadership Coalition, advancing the diffusion of carbon pricing.72 The resulting fragmentation of international climate law and governance raises overarching questions and challenges. First, what are the consequences of the increasingly complex mosaic of overlapping institutions? While multiple international regimes may offer opportunities for an ‘all-hands-on-deck’ approach to combating climate change, with each institution fulfilling a different task, the multitude of institutions may also lead to mixed signals to state and non-state actors, and even normative conflicts or forum shopping in the event of disputes.73 A recurring example in this regard is the adoption of trade measures informed by climate

Meinhard Doelle and Aldo Chircop, ‘Decarbonizing International Shipping: An Appraisal of the IMO’s Initial Strategy’ (2019) 28 Review of European, Comparative & International Environmental Law 268. 66 See, for example, Ludivine Tamiotti and others, Trade and Climate Change: WTO–UNEP Report (World Trade Organization and UNEP 2009); Panagiotis Delimatsis (ed.), Research Handbook on Climate Change and Trade Law (Edward Elgar Publishing 2016); Susanne Droege and others, ‘The Trade System and Climate Action: Ways Forward under the Paris Agreement’ (2017) 13 South Carolina Journal of International Law & Business 195. 67 See, for example, UNEP, Climate Change and Human Rights (UNEP 2015); Alan E. Boyle, ‘Climate Change, the Paris Agreement and Human Rights’ (2018) 67 International & Comparative Law Quarterly 759. 68 See, for example, Elise Johansen, Signe Busch and Ingvild Ulrikke Jakobsen (eds), The Law of the Sea and Climate Change: Solutions and Constraints (Cambridge University Press 2021). 69 Nick Mabey, ‘The Geopolitics of the Climate Talks’ Foreign Affairs (13 December 2015). 70 See, for example, Lutz Weischer, Jennifer Morgan and Milap Patel, ‘Climate Clubs: Can Small Groups of Countries Make a Big Difference in Addressing Climate Change?’ (2012) 21 Review of European Community & International Environmental Law 177; William Nordhaus, ‘Climate Clubs: Overcoming Free-Riding in International Climate Policy’ (2015) 104 American Economic Review 1339; Robert Falkner, ‘A Minilateral Solution for Global Climate Change? On Bargaining Efficiency, Club Benefits, and International Legitimacy’ (2016) 14 Perspectives on Politics 87; Jon Hovi and others, ‘The Club Approach: A Gateway to Effective Climate Co-operation?’ (2019) 49 British Journal of Political Science 1071 71 https://​ccacoalition​.org. 72 http://​www​.car​bonpricing​leadership​.org/​. 73 Remi Moncel and Harro van Asselt, ‘All Hands on Deck! Mobilizing Climate Change Action beyond the UNFCCC’ (2012) 21 Review of European Community & International Environmental Law 163. 65

28  Research handbook on climate change mitigation law change concerns, which may lead to contradictions with world trade law.74 Second, given the inevitability of some degree of institutional fragmentation, what is the role of the UNFCCC in international climate change law? The diversity of international institutions may require coordination to avoid duplication of efforts and strengthen synergies. What remains to be determined is the extent to which the UNFCCC should be the proverbial spider in the web to achieve the Paris Agreement’s long-term goals, and what decisions it should leave to other institutions. 3.2 Deformalisation A trend towards deformalisation has been observed in international law, characterised as the rejection of formal indicators to define international rules,75 along with a growing emphasis on informal law-making.76 These trends are clearly visible also in international climate change law. For one, soft law instruments and most importantly, droit dérivé in the form of decisions adopted by the UNFCCC COP and the governing bodies of the Kyoto Protocol and the Paris Agreement play a crucial role in international climate change law. Indeed, as discussed below, many core elements of international climate change law can be found in COP decisions rather than in formal treaties. Meanwhile, a parallel trend can be observed towards the softening of obligations contained in formal treaties, especially in the Paris Agreement. COP decisions play a crucial role in the UNFCCC regime. The operationalisation of the UN climate regime is based on a continuous process of negotiations and the parties have been meeting at least twice a year since 1995, with the exception of 2020/2021 due to the COVID-19 pandemic. These negotiations have resulted in the adoption of hundreds of decisions by the governing bodies as well as the subsidiary bodies. Their substance covers a wide range of issues, including mitigation, adaptation, finance, technology, and capacity-building. Some decisions have shaped the UN climate regime in important ways. The key examples include the 2001 Marrakesh Accords and the 2018 Katowice Rulebook, which include detailed rules on how to operationalise the Kyoto Protocol and the Paris Agreement respectively. Similarly, the 2010 Cancún Agreements significantly expanded and strengthened the institutional framework of the UN climate regime by establishing several new bodies, such as the Green Climate Fund, the Standing Committee on Climate Finance, the Adaptation Committee, and the Technology Executive Committee.77 As another example, a set of COP decisions known as the Warsaw Framework form the operational basis of the mechanism known as REDD+ (Reducing Deforestation and Forest Degradation in Developing Countries).78 Overall,

Harro van Asselt, ‘The Prospects of Trade and Climate Disputes before the WTO’ in Ivano Alogna, Christine Bakker and Jean-Pierre Gauci (eds), Climate Change Litigation: Global Perspectives (Brill 2021) 433. 75 Jean d’Aspremont, ‘The Politics of Deformalisation in International Law’ (2011) 3 Goettingen Journal of International Law 503, 506. 76 Joost Pauwelyn, ‘Informal International Lawmaking: Framing the Concept and Research Questions’ in Joost Pauwelyn, Ramses Wessel and Jan Wouters (eds), Informal International Lawmaking (Oxford University Press 2012) 13. 77 Decision 1/CP.16 (n. 36). 78 See Maria Eugenia Recio, ‘The Warsaw Framework and the Future of REDD+’ (2014) 24 Yearbook of International Environmental Law 37. 74

The evolving architecture of global climate law  29 important elements of the UN climate regime are developed through instruments that are not traditionally considered as legally binding under international law.79 While certain ‘hard’ elements of the UN climate regime are based on soft legal instruments, a trend can also be observed towards the ‘softening’ of provision in international climate agreements. It is commonly accepted that international environmental agreements do not always contain clear, detailed or specific rules.80 International climate treaties are no exception. As noted by Oberthür and Bodle, the Paris Agreement ‘contains few provisions that clearly establish obligations for individual parties’.81 The softening of mitigation-related treaty obligations is particularly pronounced when comparing the Kyoto Protocol with the Paris Agreement. The contrast between the Kyoto Protocol and Paris Agreement is best understood in the light of the history of the UNFCCC regime and the contrasting political preferences shaping it. Already during the negotiations for the UNFCCC in 1990, countries held divergent views on the need for internationally negotiated and legally binding emissions targets and timetables. The target-based approach was advocated by the Western European countries, while the United States, Japan and the then-Soviet Union opposed it. The United States argued that countries should instead focus on developing national climate change mitigation programmes and policies. The UNFCCC ultimately came to reflect both the European and United States’ preferences; its Article 4(1) requires countries to develop national mitigation policies and measures, while Article 4(2) sets the objective for developed countries to return their emissions to their 1990 levels by 2000.82 As Bodansky has observed, the UN climate regime has ever since consisted of variations on these two themes.83 A more top-down approach prevailed in the Kyoto Protocol in the sense that the treaty sets legally binding, economy-wide emission limitation and reduction targets for Annex I countries relative to 1990. However, the United States’ decision to not join the Protocol fuelled the desire – particularly on the part of developed countries – to create a more inclusive mitigation framework. With the 2009 Copenhagen Accord, the emphasis started shifting towards a bottom-up approach, allowing countries to define their own mitigation goals.84 Countries could also choose the base year and other key parameters of their target, which, for developing countries, also included the economic sectors covered by the target. In contrast to the Kyoto Protocol, these national targets were simply accepted in the form they were pledged and not subjected to international negotiations with a view to increasing their ambition.85

For a discussion on the role and legal nature of COP decisions, see Sebastian Oberthür and Ralph Bodle, ‘The Legal Form and Nature of the Paris Outcome’ (2016) 6 Climate Law 40, 43–44; Jutta Brunnée, ‘COPing with Consent: Lawmaking under Multilateral Environmental Agreements’ (2002) 15 Leiden Journal of International Law 1. 80 Indeed, this is how many textbooks describe the nature of international environmental law. See, for example, Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (3rd edn, Oxford University Press 2009) 17. 81 Oberthür and Bodle (n. 79) 49. See also Daniel Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) 25 Review of European, Comparative & International Environmental Law 142. 82 Bodansky (n. 42). 83 Ibid. 84 Decision 2/CP.15 (n. 35). 85 Bodansky (n. 42). 79

30  Research handbook on climate change mitigation law The shift towards a bottom-up approach was certainly not without controversy. However, in light of experiences from the Kyoto Protocol and Copenhagen, it formed the only realistic basis for a universal climate treaty86 and therefore came to be accepted as the basis of the Paris Agreement’s mitigation regime. The Paris Agreement relies on NDCs – i.e. mitigation pledges defined by the parties in accordance with their domestic preferences. The NDCs are not formally part of the Agreement but ‘housed’87 in a registry maintained by the UNFCCC Secretariat. Countries have been free to define the initial ambition and parameters of their first NDCs, resulting in insufficient ambition with respect to the Paris Agreement’s goals and considerable diversity in how countries’ mitigation goals are calculated and expressed.88 The Paris Agreement’s mitigation regime is not purely bottom-up, but also contains some legally binding elements. More specifically, it includes several obligations of conduct89 related to NDCs. Accordingly, each party must communicate and maintain an NDC, regularly update it and increase its ambition, as well as pursue domestic mitigation measures with the aim of achieving the objectives of its NDC.90 Furthermore, the 2018 Katowice Rulebook has introduced certain requirements for countries’ subsequent NDCs with a view to making them more transparent and comparable.91 The regularly updated NDCs are also a key element of the Paris Agreement’s ambition mechanism, which seeks to gradually align mitigation ambition with the Agreement’s goals through the regular updating of NDCs, regular reporting and review, and the five-yearly global stocktake. Overall, international climate change law clearly reflects the pattern towards growing reliance on soft law instruments and informal law-making in international law – as seen above, many important elements of the UN climate regime are based on such instruments. At the same time, the Paris Agreement includes few binding obligations for individual countries and is significantly softer compared to its predecessor, the Kyoto Protocol, when it comes to the key issue of mitigation. 3.3 Differentiation The principle of CBDRRC lies at the heart of the international climate regime. The principle incorporates a compromise between developing and developed countries that allowed them to agree on the UNFCCC, but diverging interpretations of the principle have determined the course of international negotiations. Developing countries have consistently argued that developed countries are the main culprits responsible for climate change given their historical responsibility. As such, the argument goes, developing countries should be exempted from key commitments in the climate treaties, and receive technological, financial and capacity-building

Domestic politics also played a role in this respect. The starting point of the United States in the negotiations on the Paris Agreement was that its ratification had to fall within the executive powers of the President, and not require Senate approval. Hence, being legally bound to achieve its target was not possible. See Oberthür and Bodle (n. 79) 45. 87 Ibid. 46–8. 88 Pieter Pauw and others, ‘Beyond Headline Mitigation Numbers: We Need More Transparent and Comparable NDCs to Achieve the Paris Agreement on Climate Change’ (2018) 147 Climatic Change 23. 89 Oberthür and Bodle (n. 79) 52. 90 Paris Agreement (n. 1) Art. 4. 91 UNFCCC, ‘Decision 4/CMA.1, Further Guidance in Relation to the Mitigation Section of Decision 1/CP.21’ UN Doc. FCCC/PA/CMA/2018/3/Add.1 (19 March 2019). 86

The evolving architecture of global climate law  31 support. Conversely, developed countries have framed the principle by arguing that their level of economic development and capacity to address the climate problem gives them a moral responsibility to take a leadership role and aid developing countries.92 The operationalisation of the principle was most pronounced in the climate treaties’ Annex system. Both the UNFCCC and Kyoto Protocol introduce commitments that apply to all countries, but add specific commitments for Annex I countries. Notably, non-Annex I countries do not have any emission reduction commitments under the Kyoto Protocol. While the UNFCCC and Kyoto Protocol are characterised by this bifurcated approach, particularly with respect to mitigation, it is important to note that they also distinguish among countries based on other features.93 The UNFCCC, for instance, refers to the ‘special situations of the least developed countries’;94 to ‘economies that are vulnerable to the adverse effects of the implementation of measures to respond to climate change’;95 to countries ‘undergoing the process of transition to a market economy’;96 and to the special needs and circumstances of a range of different countries, including ‘small island countries’, ‘countries with low-lying coastal areas’, fossil-fuel producing countries, etc.97 Over time, national circumstances – and therefore the differences between countries – have changed significantly. In 1992, the world’s largest CO2 emitter was the United States; by 2007, it was China,98 with emissions still growing rapidly in other parts of the Global South. The situation is also no longer the same in terms of economic development. Non-Annex I countries like Singapore and South Korea have reached levels of economic development that surpass some Annex I countries like the Czech Republic,99 yet they are still in the same group of developing countries. These developments led to calls by developed countries to abandon the distinctions introduced by the Annexes of the climate treaties. Such calls met with fierce resistance from several developing countries, particularly China and India, who insisted that the ‘firewall’ of the Annexes needed to be maintained. These diverging views came sharply into focus during the negotiations on a follow-up agreement to the Kyoto Protocol. A first departure from the ‘firewall’ approach to differentiation came with the 2007 Bali Action Plan, which called for ‘nationally appropriate mitigation commitments or actions’ by ‘developed country Parties’ (rather than referring to Annex I countries) and ‘nationally appropriate mitigation actions’ for ‘developing country Parties’

92 Lavanya Rajamani, Differential Treatment in International Environmental Law (Oxford University Press 2006) 86. 93 See Joost Pauwelyn, ‘The End of Differential Treatment for Developing Countries? Lessons from the Trade and Climate Change Regimes’ (2003) 22 Review of European Community & International Environmental Law 29; and Jutta Brunnée and Charlotte Streck, ‘The UNFCCC as a Negotiating Forum: Towards Common but More Differentiated Responsibilities’ (2013) 13 Climate Policy 589. 94 UNFCCC (n. 34) Art. 4(9). 95 Ibid. Art. 4(10). 96 Ibid. Art. 4(6). 97 Ibid. Art. 4(8)(i). 98 John Vidal and David Adam, ‘China Overtakes US as World’s Biggest CO2 Emitter’ The Guardian (19 June 2007). 99 World Bank, ‘World Development Indicators’ https://​ datatopics​ .worldbank​ .org/​ world​ -development​-indicators. For instance, Singapore’s per capita gross national income in 2019 (in current US$) was US$ 65,233; that of the Republic of Korea, US$31,846; and that of the Czech Republic, US$23,495.

32  Research handbook on climate change mitigation law (rather than referring to non-Annex I countries).100 This trend continued with the agreements reached at COPs in Copenhagen, Cancún and Durban.101 The Paris Agreement continued the trend away from the bifurcated approach under the UNFCCC and Kyoto. Employing a new formulation referring to ‘common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’,102 the text of the Agreement introduces a system of what some have dubbed ‘subtle differentiation’.103 Accordingly, the degree of differentiation varies for different issues, such as mitigation, adaptation, financial support, and transparency. While the Agreement’s core mitigation obligations apply to all parties, for example, in other areas new forms of differentiation are introduced. For instance, the Paris Agreement introduces a category of ‘other Parties’ – without specifying the parties being referred to – which ‘are encouraged to provide or continue to provide [financial support to developing countries] voluntarily’.104 Likewise, the contentious issue of moving towards a system of reporting and review common to all parties was resolved by providing for ‘built-in flexibility which takes into account Parties’ different capacities’.105 The Paris Rulebook laying down detailed guidance for reporting and review allows developing country parties to determine for themselves if they require this flexibility, but at the same time limits the number of instances in which such flexibility is available.106 The approach to differentiation has thus changed markedly in the past decades, with the more rigid Annex-based approach replaced by a more nuanced and diversified approach. While it may seem that some of the key contestations between developed and developing countries have been settled, it is nevertheless to be expected that differentiation – and diverging views on who needs to do what – will continue to shape the further development of international law on climate change, both within and outside the UN climate regime.107 3.4 Instrumentation ‘Instrumentation’, the title of this section, is used as a generic term for the broad diversity of tools used to progress policy objectives. In the context of climate change mitigation and adap100 UNFCCC, ‘Decision 1/CP.13, Bali Action Plan’ UN Doc. FCCC/CP/2007/6/Add.1 (14 March 2008) paras 1(b)(i) and (ii). For a critique, see Lavanya Rajamani, ‘From Berlin to Bali and Beyond: Killing Kyoto Softly?’ (2008) 57 International & Comparative Law Quarterly 909. 101 UNFCCC, ‘Decision 1/CP.17, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action’ UN Doc. FCCC/CP/2011/9/Add.1 (15 March 2012) para. 2. 102 Paris Agreement (n. 1) Art. 4(3) (emphasis added). The language was lifted from the ‘U.S.–China Joint Presidential Statement on Climate Change’ (25 September 2015) https://​obamawhitehouse​.archives​ .gov/​the​-press​-office/​2015/​09/​25/​us​-china​-joint​-presidential​-statement​-climate​-change. 103 Sandrine Maljean-Dubois, ‘The Paris Agreement: A New Step in the Gradual Evolution of Differential Treatment in the Climate Regime?’ (2016) 25 Review of European, Comparative & International Environmental Law 151; Pieter Pauw, Kennedy Mbeva and Harro van Asselt, ‘Subtle Differentiation of Countries’ Responsibilities under the Paris Agreement’ (2019) 5 Palgrave Communications 86. 104 Paris Agreement (n. 1) Art. 9(2). 105 Ibid. Art. 13(1). 106 Decision 18/CMA.1(n. 55). See van Asselt and Kulovesi (n. 55). 107 For instance, differentiation also emerged as an issue in the context of international regulation of HFCs, aviation and shipping emissions. See Susan Biniaz, ‘I Beg to Differ: Taking Account of National Circumstances under the Paris Agreement, the ICAO Market-Based Measure, and the Montreal Protocol’s HFC Amendment’ (Sabin Center for Climate Change Law 2017).

The evolving architecture of global climate law  33 tation, attention has typically focused on instruments of public policy, although the private sector has also meaningfully contributed to instrument design and implementation (see also Section 3.7). Not only has climate policy engendered sophisticated approaches to instrumentation, with complex portfolios of instruments that vary in scope and regulatory approach, it has also proven a fertile laboratory for policy innovation at different levels of authority. This section provides a brief typology of climate policy instruments and their substantive rationale, tracing the evolution of major policy trends, and offering some thoughts about the features shared between climate policy instrumentation and global climate law more generally. In general terms, policy instruments are interventions to shape individual or collective behaviour. Different theoretical frameworks exist to justify such interventions, although by far the most influential has come from contemporary economics. There, the rationale of policy instruments is seen to originate in the need to correct market failures, which are described as an inefficient allocation of goods and services.108 Market failures relevant to climate change and to the management of its causes and effects include positive and negative externalities, market power and concentration, split incentives, and information asymmetries.109 Decision-makers seeking to address these failures can take recourse to a variety of policy instruments, each of which has distinct features and trade-offs. In practice, these instruments are applied alone or in varying combinations to different sectors, such as electricity generation, transport, buildings, and industry. Climate policy instruments can assume a nearly infinite variety of shapes, rarely resembling each other in all specific aspects of design and implementation. Still, they are commonly grouped under a more limited number of policy categories, including regulatory or, somewhat derogatorily, ‘command-and-control’ instruments that rely on coercion; economic instruments that operate through pricing and other flexible incentives; and a range of voluntary and suasive instruments that influence behaviour through information and cooperation. Lawyers often feel the greatest affinity to the first category, which recruits familiar solutions such as liability rules and different forms of administrative regulation, including building permits, operating licences, and performance or technology standards. All of these have variously assumed a role in climate policy, for instance in the form of periodic emission reporting obligations, emission standards for appliances and vehicles, or mandates to achieve a certain share of renewable energy in the electricity supply. Because of the pervasive scale of climate change, however, decision-makers have been uniquely sensitive to the economic cost of policy instruments and their impacts on both emitters and society at large. A perception that regulatory approaches are overly rigid and therefore too costly has accelerated the diffusion of concepts from economic theory into climate policy

Francis Bator, ‘The Anatomy of Market Failure’ (1958) 72 Quarterly Journal of Economics 351. Correcting externalities, in particular, is considered vital to meet the climate challenge: the negative externality related to greenhouse gas emissions, where the economic damage resulting from their accumulation in the atmosphere is borne – both presently and in the future – by society at large, rather than by the emitters themselves; and the positive externalities of innovation and network effects, where those bearing the economic cost of beneficial activities, such as developing new technologies and deploying infrastructure, are unable to reap the full economic benefits of their behaviour. In both cases, economic incentives are misaligned, resulting in levels of emissions and innovation that do not contribute to optimal welfare outcomes. For further details, see Adam B. Jaffe, Richard G. Newell and Robert N. Stavins, ‘A Tale of Two Market Failures: Technology and Environmental Policy’ (2005) 54 Ecological Economics 164. 108 109

34  Research handbook on climate change mitigation law debates, prompting the widespread adoption of more flexible instruments that seek to influence behaviour through price signals.110 Such economic instruments are considered particularly suited to address climate change because greenhouse gases are not in themselves toxic and the damage function of their accumulation in the atmosphere is shallow in the short run. Two approaches, in particular, have seen deployment for this purpose: pricing controls, such as carbon taxes and fees, as well as quantity rationing, where tradable units confer the right to discharge a specified amount of greenhouse gases and can be sold or purchased in a carbon market. Implemented at both the domestic and the international level, such carbon pricing policies have experienced occasional setbacks,111 yet their trajectory over the long term has been one of continued expansion,112 including through incorporation in the Kyoto Protocol and Paris Agreement.113 With a propensity for travel across regulatory planes, from the domestic to the international level and back, as well as extensive reliance on actors other than the state, this category of policy instruments exemplifies both the innovative dynamic and disruptive challenges posed by global climate law more generally. As indicated earlier, however, instrumentation in climate policy does not stop at these archetypal categories. Successfully managing climate change is also, for instance, a matter of ensuring necessary financial flows, with unprecedented levels of investment called for, from both public and private sources, through a variety of funding mechanisms.114 Climate finance has become another laboratory of policy innovation, with established channels such as the international climate funds operated under the UNFCCC or traditional bi- and multilateral development finance increasingly complemented by newer instruments such as green bonds; helping advance this evolution is the gradual emergence of enabling governance frameworks – some mandated by law, others adopted in the form of voluntary standards – that set out principles or criteria of sustainable finance115 and require enhanced transparency about corporate sustainability as well as disclosure of the financial risks arising from climate change.116 Going forward, climate policy instrumentation will continue to offer a locus of change and experimentation. Already, the frontier of policy evolution has shifted to new and emerging challenges, such as the need to curb the continued supply of fossil fuels and use of long-lived

By applying an explicit price to emitting activities, these instruments seek to internalise the social cost of carbon, yet afford flexibility for emission reductions to occur where they yield the greatest social benefits. For further details, see Michael A. Mehling, ‘Market Mechanisms’ in Lavanya Rajamani and Jacqueline Peel (eds), The Oxford Handbook of International Environmental Law (2nd edn, Oxford University Press 2021) 92. 111 Michael A. Mehling, ‘Between Twilight and Renaissance: Changing Prospects for the Carbon Market’ (2012) 6 Carbon & Climate Law Review 277. 112 World Bank, State and Trends of Carbon Pricing 2021 (World Bank 2021). 113 See Michael A. Mehling, ‘Governing Cooperative Approaches under the Paris Agreement’ (2020) 46 Ecology Law Quarterly 765. 114 For estimates of the financial flows needed for climate change mitigation and adaptation, see Mehling (n. 53). 115 See, for instance, Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088 [2020] OJ L198/13, which sets out a taxonomy of criteria for economic activity to qualify as environmentally sustainable. 116 At the international level, see, for instance, the Task Force on Climate-Related Financial Disclosures (TCFD), Recommendations of the Task Force on Climate-Related Financial Disclosures: Final Report (Bank for International Settlements 2017). 110

The evolving architecture of global climate law  35 emitting assets; addressing the distributional impacts of climate change response measures to secure a just and equitable transition; targeting spillover and leakage effects induced by international trade in emissions-intensive goods and services; or governing the risks of untested and potentially disruptive breakthrough technologies, such as solar radiation management or different negative emissions technologies. Like global climate law itself, the future of climate policy instrumentation will remain fluid, adjusting to the accelerating pace and scale of climate action, and responding to new challenges as these arise on the horizon. 3.5 Legislation There has been a visible increase in the number of legislative instruments adopted to address climate change, with the ‘Climate Change Laws of the World’ database counting more than 2,000 laws at the time of writing.117 This legislation can in part be traced back to major international policy developments, such as the Copenhagen Climate Conference and the Paris Agreement.118 Among this body of climate legislation, national framework laws on climate change have rapidly become a key feature of various legal systems.119 National framework laws can be defined as all legislation expressly dedicated to climate change and providing a normative framework for economy-wide or cross-sectoral climate policy design, implementation, evaluation, and coordination. Although the 2008 United Kingdom (UK) Climate Change Act may be the most well-known example, in the past few years many other developed and developing countries – including Argentina, Finland, France, Germany, Kenya, Mexico, the Netherlands, Pakistan and more – have likewise adopted framework legislation on climate change. In 2021, furthermore, the European Union (EU) added an EU Climate Law to its already extensive instrument mix.120 Several framework laws are concise, merely setting out guiding objectives, principles and general procedures for climate policy development,121 whereas other countries have opted for comprehensive legislation with elaborate climate governance roadmaps.122 National framework laws are generally designed for durability, meaning that they can survive successive changes of government. This can help provide long-term certainty, including for investors in mitigation technologies.123 To this end, the UK Climate Change Act 117 London School of Economic and Political Science, Grantham Research Institute on Climate Change and the Environment, ‘Climate Change Laws of the World’ https://​climate​-laws​.org/​. See also Shaikh M. S. U. Eskander and Sam Fankhauser, ‘Reduction in Greenhouse Gas Emissions from National Climate Legislation’ (2020) 10 Nature Climate Change 750 (pegging the number of laws at 1,800). 118 Gabriela Iacobuta and others, ‘National Climate Change Mitigation Legislation, Strategy and Targets: A Global Update’ (2018) 18 Climate Policy 1114, 1130; Matthias Duwe and Ralph Bodle, ‘“Paris Compatible” Climate Change Acts? National Framework Legislation in an International World’ in Thomas L. Muinzer (ed.), National Climate Change Acts: The Emergence, Form and Nature of National Framework Climate Legislation (Hart 2020) 43, 44. 119 See Muinzer (n. 118); Matthias Duwe and others, ‘Climate Laws in Europe: Good Practices in Net-Zero Management’, Report (Ecologic 2020). 120 Commission (EU), ‘Commission Welcomes Provisional Agreement on the European Climate Law’, Press Release (21 April 2021) https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​ip​_21​_1828. 121 For instance, in Austria, Denmark, Finland, Norway and Sweden. 122 For instance, in France, Mexico, New Zealand, Spain and the UK. 123 See Diarmuid Torney and Roderic O’Gorman, ‘Adaptability versus Certainty in a Carbon Emissions Reduction Regime: An Assessment of the EU’s 2030 Climate and Energy Policy Framework’ (2020) 29 Review of European, Comparative & International Environmental Law 167, 174.

36  Research handbook on climate change mitigation law introduced not only a long-term (i.e. 2050) climate target, but also pioneered the concept of ‘carbon budgets’ capping emissions over five-year periods, with three budgets set at a time and the budget set 12 years in advance.124 Although not many countries have followed the UK’s approach of setting regular carbon budgets, the durability of legislation can also be strengthened by planning simultaneously for the short and long term.125 Some framework laws further provide details on the legal instruments or sectoral mitigation measures to be implemented. While doing so may help clarify the long-term direction of a country’s climate policy, it may also make it harder to agree on the law.126 Lastly, the durability can be strengthened by making the targets legally enforceable. While durability is important, adaptability is likewise an important consideration. For instance, the carbon budgets under the UK Climate Change Act can be revised in the light of new information about the science of climate change or because of international policy developments.127 Other laws, such as those in Germany and Spain, include a provision that prevents governments from backsliding on progress made,128 mirroring the progression principle that can be found in the Paris Agreement.129 The adaptability of a national framework law can be enhanced by another key characteristic of national framework laws on climate change, which is the creation of an independent expert advisory body. Again, the UK Climate Change Act and its Climate Change Committee can be mentioned as an example.130 These expert bodies can play various roles, including advising policymakers, monitoring progress made, and stimulating public debate. To strengthen the role of these advisory bodies, some countries provide financial and administrative support. Moreover, the role of an advisory body can be significantly strengthened when a government is obliged to respond to the findings and recommendations put forward by the body.131 For all its promised merits, the trend towards increased deployment of framework climate legislation can also introduce new challenges. With its typically high degree of formality and procedural inertia, for instance, such legislation can also, if poorly crafted, lock in a level of climate effort that proves insufficiently ambitious over time. Conversely, the delegation of review and adjustment authority to the executive branch or an independent executive body may provide flexibility or improve accountability, yet it could also weaken the perceived legitimacy of the overall climate policy framework and undermine the very reason for adopting formal legislation in the first place. Finally, and perhaps most importantly, the greater durability of climate legislation may come at a price, namely that of deterring greater climate ambition. Faced with the need to first secure a broad societal consensus, which in turn will narrow the latitude of future policy discretion, some governments may prove reluctant to enshrine the greatest possible – or even the necessary – level of policy ambition in statutory law.

UK Climate Change Act https://​www​.legislation​.gov​.uk/​ukpga/​2008/​27/​contents. See Richard Macrory and Thomas L. Muinzer, ‘The UK’s Climate Change Act’ in Muinzer (n. 118) 69. 125 This is a key feature of the Finnish Climate Change Act. See Sara Kymenvaara, ‘Legally Obliged to Plan: Effective Climate Change Mitigation by Means of Policy Planning under the Finnish Climate Act?’ (2015) 12 Journal for European Environmental & Planning Law 286. 126 Duwe and others (n. 119) 26. 127 UK Climate Change Act (n. 124) s10. 128 Duwe and others (n. 119) 20–21. 129 Paris Agreement (n. 1) Art. 4(3). 130 UK Climate Change Act (n. 124) Part 2. 131 Duwe and others (n. 119) 32–4. 124

The evolving architecture of global climate law  37 3.6 Litigation Like the notion of ‘climate law’, the concept of climate litigation is broad and varied, ranging from situations in which a claimant appeals to a court to enforce existing climate law to those in which a claimant challenges the validity of a climate law.132 Irrespective of the definition adopted,133 it is clear that as climate law has matured, climate litigation is becoming increasingly common in both national and international courts (see Chapter 13). Until the mid 2000s, climate-related court cases were few and far between. This began to change following the landmark Massachusetts v EPA case, in which the US Supreme Court ruled that the US Environmental Protection Agency was required to make a finding on whether CO2 and other greenhouse gases qualify as pollutants, and subsequently must therefore be regulated.134 Since then, there have been a growing number of cases brought against governments, corporations and individuals across the world,135 with one estimate pegging the number of cases at 1,550 by the middle of 2020, albeit with a majority of those (1,200) filed in the United States.136 One factor explaining the growth in climate litigation is the slow progress with international and domestic climate policy: in the absence of effective climate governance, concerned actors have sought alternative venues in which to mobilise climate action. In other words, internationally and nationally, courts are being used to fill a governance gap.137 While the Paris Agreement may have helped fill this gap to some extent, the number of cases has continued to grow. Indeed, the Paris Agreement, among others through its long-term temperature and

132 Among the many academic contributions on climate litigation published since the first edition of this book, see Jacqueline Peel and Hari M. Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press 2015); Kim Bouwer, ‘The Unsexy Future of Climate Change Litigation’ (2018) 30 Journal of Environmental Law 483; Geetanjali Ganguly, Joana Setzer and Veerle Heyvaert, ‘If at First You Don’t Succeed: Suing Corporations for Climate Change’ (2018) 38 Oxford Journal of Legal Studies 841; Joana Setzer and Lisa C. Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ (2019) 10 WIREs Climate Change e580; Jacqueline Peel and Jolene Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113 American Journal of International Law 679; Annalisa Savaresi and Juan Auz, ‘Climate Change Litigation and Human Rights: Pushing the Boundaries’ (2019) 9 Climate Law 244; Jacqueline Peel and Hari M. Osofsky, ‘Climate Change Litigation’ (2020) 16 Annual Review of Law and Social Science 21; Jolene Lin and Douglas A. Kysar (eds), Climate Change Litigation in the Asia-Pacific (Cambridge University Press 2020); Alogna and others (n. 74); Francesco Sindico and Makane Moïse Mbengue (eds), Comparative Climate Litigation: Beyond the Usual Suspects (Springer 2021). In addition, surveys have been produced by the London School of Economics and Political Science (LSE) and UNEP: Joana Setzer and Rebecca Byrnes, ‘Global Trends in Climate Change Litigation: 2020 Snapshot’ (LSE 2020); UNEP, ‘Global Climate Litigation Report: 2020 Status Review’ (UNEP 2020). 133 See Lisa Vanhala and Chris Hilson, ‘Climate Change Litigation: Symposium Introduction’ (2013) 35 Law & Policy 141, 144; Peel and Osofsky (2020) (n. 132) 23–4. 134 Massachusetts v Environmental Protection Agency, [2007] 549 US 497. See Elizabeth Fisher, ‘Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA’ (2013) 35 Law & Policy 236. 135 Setzer and Byrnes (n. 132) 7. 136 UNEP (n. 132) 13. The estimate is based on an ongoing tracker of climate litigation: http://​ climatecasechart​.com/​. 137 Vanhala and Hilson (n. 133) 142.

38  Research handbook on climate change mitigation law emissions goals and the NDCs, has provided litigants with new benchmarks to deploy in their claims against governments and corporations.138 One of the most high-profile cases through which litigants sought to strengthen climate action was Urgenda v. State of the Netherlands, in which a District Court in The Hague ruled that the Dutch government had to increase the ambition of its 2020 mitigation target – a ruling that was subsequently confirmed by a Court of Appeal as well as the Dutch Supreme Court.139 Urgenda embodies three intertwined trends in climate litigation. First, it can be considered an example of what Peel and Osofsky term the ‘rights turn’ in climate change litigation, with claimants grounding their claims in national and international human rights law obligations and courts showing a willingness to grant such claims.140 Second, Urgenda illustrates the advent of ‘strategic litigation’, with litigants making conscious decisions about what type of case to bring to ‘advance climate policies, drive behavioural shifts by key actors, and/or create awareness and encourage public debate’.141 Following Urgenda, a range of similar cases – some successful, others less so, have been brought against governments. In a novel turn, the legal arguments used in Urgenda have also been used against companies, with the same District Court in the Hague ordering oil and gas multinational Shell to achieve 45 per cent emission reductions along its supply chain.142 Third, Urgenda exemplifies the evolving use of climate science in litigation, with litigants and the courts drawing on IPCC reports.143 Other cases have also benefited from advances in climate science, particularly in the area of attribution science, which have made it easier to link specific climate impacts to greenhouse gas emissions.144

See Lennart Wegener, ‘Can the Paris Agreement Help Climate Change Litigation and Vice Versa?’ (2020) 9 Transnational Environmental Law 17; Brian J. Preston, ‘The Influence of the Paris Agreement on Climate Litigation: Legal Obligations and Norms (Part I)’ (2021) 33 Journal of Environmental Law 1. 139 Urgenda Foundation v State of the Netherlands, (2015) HA ZA C/09/00456689; State of the Netherlands v Urgenda Foundation, Hague Court of Appeal, case 200.178.245/01 (9 October 2018); State of the Netherlands v Urgenda Foundation, Supreme Court of the Netherlands, case 19/00135 (20 December 2019). See, for example, Kars J. de Graaf and Jan H. Jans, ‘The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change’ (2015) 27 Journal of Environmental Law 517; Benoit Mayer, ‘The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018)’ (2019) 8 Transnational Environmental Law 167; Margaretha Wewerinke-Singh and Ashleigh McCoach, ‘The State of the Netherlands v Urgenda Foundation: Distilling Best Practice and Lessons Learnt for Future Rights‐Based Climate Litigation’ (2021) 30 Review of European, Comparative & International Environmental Law 275. 140 Jacqueline Peel and Hari Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7 Transnational Environmental Law 37, 40. 141 Setzer and Byrnes (n. 132) 4. 142 Milieudefensie and others v Royal Dutch Shell, HA ZA 19-379 C/09/571932 (26 May 2021). 143 For a critical discussion of the use of climate science in the Urgenda case, see Mayer (n. 139) 181–5. 144 Attribution of climate impacts to emissions is at stake in Lliuya v RWE, in which a Peruvian farmer is seeking to hold the German utility RWE liable for climate-related damage. See Order of the court in Lliuya v RWE (Higher Regional Court Hamm, 1-5 U 15/17 2 0 285/15, 30 November 2017). See further Sophie Marjanac and Lindene Patton, ‘Extreme Weather Event Attribution Science and Climate Change Litigation: An Essential Step in the Causal Chain?’ (2018) 36 Journal of Energy & Natural Resources Law 265; Michael Burger, Jessica Wentz and Radley Horton, ‘The Law and Science of Climate Attribution’ (2020) 45 Columbia Journal of Environmental Law 57. 138

The evolving architecture of global climate law  39 While ‘holy grail’ cases such as Massachusetts v EPA and Urgenda have understandably drawn significant attention, many cases concern arguably more mundane issues such as challenges against planning permissions for wind farms or cases concerning the allocation of allowances under emissions trading systems.145 Moreover, further attention is needed for cases in the Global South, where cases may display different characteristics (e.g. climate change being more peripheral to the argument, and potentially contentious climate-related claims being packaged together with other, less controversial claims).146 The impacts of climate change litigation, notably its influence (or lack thereof) on advancing climate action, remain contested.147 Even unsuccessful cases against governments and corporations may raise awareness, help shift the terms of the political debate on climate policy, or cause reputational damage to defendants.148 Conversely, even though big ‘wins’ such as Urgenda may be politically and symbolically of significance – and spark similar litigation elsewhere – the fact that the Dutch government for many years ignored the District Court ruling illustrates that litigation success does not necessarily translate into climate action.149 Moreover, litigation can also be used by corporations and governments as a strategy to thwart climate action.150 While the jury thus remains out on the consequences – both in the short term and in the longer run – it seems clear that climate litigation as a legal phenomenon is here to stay. 3.7 Privatisation From the inception of the international climate change regime, non-state actors such as businesses and NGOs have played a significant role in the normative development of the regime and in its implementation.151 One important development in global climate law is that such actors have also become involved in transnational governance initiatives of their own. Examples of climate governance ‘beyond the state’ abound. Some initiatives support corporations in making credible climate commitments (e.g. through the Science-Based Targets ini Bouwer (n. 132). On litigation related to the EU emissions trading system, see Sanja Bogojević, ‘EU Climate Change Litigation, the Role of the European Courts, and the Importance of Legal Culture’ (2013) 35 Law & Policy 184. 146 Peel and Lin (n. 132); Joana Setzer and Lisa Benjamin, ‘Climate Litigation in the Global South: Constraints and Innovations’ (2019) 9 Transnational Environmental Law 77. 147 Compare, for instance, the contributions by Cinnamon Piñon Carlarne and Guy Dwyer in Benoit Mayer and Alexander Zahar (eds), Debating Climate Law (Cambridge University Press 2021). 148 Ganguly and others (n. 132). 149 On the diffusion of climate litigation and Urgenda, see Suryapratim Roy and Edwin Woerdman, ‘Situating Urgenda v The Netherlands within Comparative Climate Change Litigation’ (2016) 34 Journal of Energy & Natural Resources Law 65. On the Dutch government ignoring the Urgenda rulings in the first two instances, see Laura Burgers and Tim Staal, ‘Negeren Urgendavonnis is Zorgelijk voor de Rechtsstaat’ Het Parool (2 July 2019) (in Dutch). 150 One example is the threat of investment arbitration against climate action, such as the case launched by RWE against the Netherlands for its coal phase-out. See ‘RWE Seeks Compensation for Dutch Plans to Shut Coal-Fired Plant’ Reuters (4 February 2021) https://​www​.reuters​.com/​article/​rwe​ -netherlands​-coal​-idUSL8N2KA5SU. 151 See, for example, Chiara Giorgetti, ‘From Rio to Kyoto: A Study of the Involvement of Non-Governmental Organizations in the Negotiations on Climate Change’ (1999) 7 New York University Environmental Law Journal 201; Harro van Asselt, ‘The Role of Non-State Actors in Reviewing Ambition, Implementation and Compliance under the Paris Agreement’ (2016) 6 Climate Law 91. 145

40  Research handbook on climate change mitigation law tiative152) and accounting for their carbon footprints (e.g. through GHG Protocol standards153). Another category consists of voluntary carbon markets that have been established in the shadow of international and national climate law.154 Subnational authorities have also become particularly active in the fight against climate change, as exemplified by the C40 initiative and the Global Covenant of Mayors for Climate and Energy, through which cities commit to climate action and report on progress.155 There are myriad reasons for the creation of these transnational climate governance initiatives. These reasons include systemic factors such as the general shift from government to governance and developments in international climate policy (such as the creation of market mechanisms under the Kyoto Protocol, or the United States’ withdrawal first from Kyoto and later from the Paris Agreement), as well as specific factors such as profit-making or an enhanced sense of urgency.156 An important feature of various initiatives outside the UNFCCC is their transnational nature, meaning that such initiatives cross national boundaries and jurisdictions.157 The growth in transnational climate governance arrangements is remarkable, especially when contrasted with the stagnation of intergovernmental arrangements since the 2000s.158 Although there may be a general unease among lawyers with the idea that norms can emerge without (or through weaker forms of) state consent,159 some have begun to acknowledge that international law may well emanate from sources other than the state or international organisations.160 Still, not all transnational climate governance arrangements are likely to be considered transnational climate regulation (let alone ‘law’), simply because the functions they fulfil are not jurisgenerative. The main functions of several transnational initiatives include agenda setting, information-sharing, networking, capacity-building, and financing161 as opposed to target-setting, rule-making, or other activities that could be considered norm production. A key

See https://​sciencebasedtargets​.org/​. See https://​ghgprotocol​.org/​. 154 Steven Bernstein and others, ‘A Tale of Two Copenhagens: Carbon Markets and Climate Governance’ (2011) 39 Millennium 161. 155 See, for example, Harriet Bulkeley, ‘Cities and the Governing of Climate Change’ (2010) 35 Annual Review of Environment and Resources 229; Helmut Philipp Aust, ‘The Shifting Role of Cities in the Global Climate Change Regime: From Paris to Pittsburgh and Back?’ (2018) 28 Review of European, Comparative & International Environmental Law 57; Jolene Lin, Governing Climate Change: Global Cities and Transnational Lawmaking (Cambridge University Press 2018). 156 Matthew J. Hoffmann, Climate Governance at the Crossroads (Oxford University Press 2011) 64–71; Jessica F. Green, Rethinking Private Authority: Agents and Entrepreneurs in Global Environmental Governance (Princeton University Press 2013) 14–16. 157 See generally Kenneth W. Abbott, ‘The Transnational Regime Complex for Climate Change’ (2012) 30 Environment & Planning C 571; Harriet Bulkeley and others, ‘Governing Climate Change Transnationally: Assessing the Evidence from a Database of Sixty Initiatives’ (2012) 30 Environment & Planning C 591. 158 Kenneth W. Abbott, Jessica F. Green and Robert O. Keohane, ‘Organizational Ecology and Institutional Change in Global Governance’ (2016) 70 International Organization 247, 251–5. 159 Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 American Journal of International Law 1. 160 Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking’ (2014) 25 European Journal of International Law 733. 161 Abbott (n. 157) 579–80; Bulkeley and others (n. 157) 595–6. 152 153

The evolving architecture of global climate law  41 area where rule-making beyond the state does take place is the carbon market. The creation of regulatory and voluntary markets for trading emissions credits has led to the emergence of new arrangements that seek to govern these markets. For instance, voluntary carbon offset standards such as the Verified Carbon Standard and the Gold Standard have been created to ensure some level of oversight of the voluntary – as well as some regulatory – markets in the absence of rules developed by regulatory bodies.162 Although this form of rule-making has generally been welcomed as a way of ‘greening’ carbon markets,163 it also highlights new challenges. For instance, private actors may develop rules on the emission reductions of offsetting projects, projects’ wider (sustainability) impacts, or both. The approach ultimately adopted will affect which projects will receive a standard, which may subsequently be reflected in the price of resulting credits on the carbon market. More generally, the rise of transnational climate regulation raises questions about who sets the rules, based on what authority, and with what effects – questions related to accountability of governance. Although various notions of accountability exist,164 the term generally refers to the idea that those bestowed with power need to take responsibility for their actions. Various questions can be raised under this heading: who should be held accountable, to whom should they be accountable; for what exactly; and using which standards?165 Importantly, there is not one type of accountability and there may be trade-offs between the different types (e.g. a private business actor involved in climate governance may find it difficult to be accountable both to its shareholders and to public authorities).166 To strengthen the accountability of the exercise of transnational regulatory power, it may be useful to resort to legal administrative standards and good governance principles.167 The rise of transnational climate governance also raises questions about the relationship between such initiatives and ‘traditional’ law-making and regulation. In the run-up to Paris, international negotiators increasingly began to emphasise the role and importance of non-state and subnational initiatives in climate action.168 This culminated in greater recognition of action by ‘non-party stakeholders’ in the decision adopting the Paris Agreement. Among others, the decision encourages the registration of new actions in a portal maintained by the UNFCCC Secretariat, launches annual high-level events, and establishes two ‘high-level champions’ to facilitate and scale up climate action.169 In 2019, UNFCCC parties decided to extend these activities to beyond 2020.170 Moving forward, a key question is how the intergovernmental

Heather Lovell, ‘Governing the Carbon Offset Market’ (2010) 1 WIREs Climate Change 353. James Salzman and William Boyd, ‘The Curious Case of Greening in Carbon Markets’ (2011) 41 Environmental Law 73. 164 Jonathan G. S. Koppell, World Rule: Accountability, Legitimacy, and the Design of Global Governance (University of Chicago Press 2010). 165 Tim Corthaut and others, ‘Operationalizing Accountability in Respect of Informal International Lawmaking Mechanisms’ in Pauwelyn, Wessel and Wouters (n. 76) 310. 166 Cf. Koppell (n. 164) 55–66. 167 Veerle Heyvaert, ‘What’s in a Name? The Covenant of Mayors as Transnational Environmental Regulation’ (2013) 22 Review of European Community & International Environmental Law 78, 87–9. 168 See Sander Chan and others, ‘Reinvigorating International Climate Policy: A Comprehensive Framework for Effective Non-State Action’ (2015) 6 Global Policy 466. 169 Decision 1/CP.21 (n. 56) paras 109–23. 170 UNFCCC, ‘Decision 1​.CP/​25, Chile Madrid Time for Action’ UN Doc. FCCC/CP/2019/13/Add.1 (16 March 2020) paras 27–9. 162 163

42  Research handbook on climate change mitigation law process can help facilitate (or ‘orchestrate’171) climate action by non-state and subnational actors, and how non-state action can in turn strengthen parties’ climate ambitions and support the achievement of the Paris Agreement goals.172

4 CONCLUSION This chapter has described an architecture of global climate law that is in existential flux; born out of the lofty aspirations of classic multilateralism, the formal treaty architecture which engendered the original framework of international climate cooperation has given way to a far more complex, less clear-cut governance architecture, where limited-membership initiatives operate alongside the established UNFCCC structures, and voluntary pledges, non-state actors and flexible policy instruments supplant or complement traditional treaty obligations. Some international lawyers will observe these trends with a sense of unease, as they put to question some of the central purposes and raisons d’être of a legally vested international regime, such as the importance of state consent, clear accountability mechanisms, transparency, and enforceable obligations. Yet to the extent that global aspirations to avoid dangerous climate change remain unachieved, it is likely that we will continue to see a diverse array of governance approaches emerging. Indeed, perhaps the sheer scale, cost and complexity of climate change have made the current assemblage an inevitable necessity. Furthermore, given the urgency of the climate challenge, arriving at practical solutions should arguably take precedence over formal preoccupations. The fact that climate change now permeates collective and individual decision-making processes in ways that were difficult to conceive three decades ago could be seen as an important sign that global climate law is, at long last, maturing.

On orchestration, see Abbott (n. 157) 587–8; Thomas Hale and Charles Roger, ‘Orchestration and Transnational Climate Governance’ (2014) 9 Review of International Organizations 59; Kenneth W. Abbott, ‘Orchestration: Strategic Ordering in Polycentric Governance’ in Andrew Jordan and others, Governing Climate Change: Polycentricity in Action? (Cambridge University Press 2018) 188. 172 Studies have begun to quantify the contribution of non-state and subnational action to climate change mitigation, suggesting they can help put the Paris Agreement’s goals within reach. See, for example, Angel Hsu and others, ‘Performance Determinants Show European Cities Are Delivering on Climate Mitigation’ (2020) 10 Nature Climate Change 1015; Takeshi Kuramochi and others, ‘Beyond National Climate Action: The Impact of Region, City, and Business Commitments on Global Greenhouse Gas Emissions’ (2020) 20 Climate Policy 275; and Swithin Lui and others, ‘Correcting Course: The Emission Reduction Potential of International Cooperative Initiatives’ (2021) 21 Climate Policy 232. For a critical discussion, see Sander Chan and others, ‘Climate Ambition and Sustainable Development for a New Decade: A Catalytic Framework’ (2021) 12 Global Policy 245. 171

3. Climate change mitigation and the precautionary principle Nicolas de Sadeleer

INTRODUCTION Human beings, like other living organisms, have always influenced their environment. However, since the start of the Industrial Revolution, the surge in human activities has been impacting the lithosphere and pedosphere, the atmosphere, the hydrosphere, the cryosphere, and the biosphere1 more deeply than we did in all previous periods combined. These are the major components of the climate system, in which complex interactions have produced a rather stable equilibrium around which climate revolves.2 The magnitude of these activities is affecting the face of the Earth in an unprecedented manner. Since the start of agriculture around 11,000 years ago, 70% of the Earth’s land surface has been altered by human activities.3 The anthropogenic mass has doubled roughly every 20 years. As a result, it is surpassing the global living biomass. Indeed, this is the first time in human history that we have altered ecosystems with such intensity, on such scale and with such speed.4 It comes as no surprise that the Earth is at a crossover point.5 For over a century, industrial societies have viewed nature both as a rich reserve of resources and as a dump for the refuse produced by resource exploitation. Natural resource over-exploitation as well as environmental pollution were belittled. Indeed, as pollutants were borne away by wind and water the solution to pollution was dilution. In addition, climate change issues were unknown. At the end of the 1960s, the public authorities in the Western world tried to stem the threats posed by the growing environmental pressures. However, they fell short in endorsing a monolithic regulatory approach. Since the inception of the environmental policy in the Western world,6 policy measures intended to counter environmental damage have undergone a succession of radical modifications. A first phase took the form of remedial action, which translates into ex post intervention 1 Since the start of agriculture around 11,000 years ago, the biomass of terrestrial vegetation has been halved, with a corresponding loss of more than 20% of its original biodiversity. See K.-H. Erb et al., ‘Unexpectedly Large Impact of Forest Management and Grazing on Global Vegetation Biomass’ (2018) 553 Nature 73–76; IPBES, Global Assessment Report on Biodiversity and Ecosystem Services (IPBES Secretariat 2019). 2 P. Lemke, ‘Dimensions and Mechanisms of Global Climate Change’ in G. Winter (ed.), Multilevel Governance of Global Environmental Change (Cambridge University Press 2006) 37. 3 C. J. A. Bradshaw et al., ‘Underestimating the Challenges of Avoiding a Ghastly Future’ Frontiers in Conservation Science (13 January 2021). 4 J. R. McNeill, Nothing New under the Sun. An Environmental History of the Twentieth-Century World (W. W. Norton & Company 2000) 3. 5 E. Elhacham et al., ‘Global-Human Made Mass Exceeds All Living Biomass’ (2020) 558 Nature 442–444. 6 This concept encompasses mostly OECD countries.

43

44  Research handbook on climate change mitigation law by the public authorities. At this stage damage has already occurred; the only possible course of action is remedy. This belated approach does not prevent the occurrence of environmental damage. It soon became apparent that this model was practicable only if it was buttressed by a preventive policy. For that reason, environmental policy evolved to include a preventive dimension, by which public authorities intervene prior to the occurrence of damage that is likely to take place if nothing is done to prevent it. This second stage is marked by a blind faith in science. In accordance with an ‘assimilative’ approach,7 it is not absolutely necessary to eliminate discharges of polluting substances, since emission standards may easily provide an appropriate response to any type of pollution by setting the exact level of a pollutant that an ecosystem can assimilate. It is assumed that as long as emissions do not exceed a certain critical threshold, receiving environments may absorb and disperse them. Ecological deterioration only takes place when the self-cleansing capacity of ecosystems is saturated as the result of too high concentrations or too rapid accumulations of polluting substances.8 In the course of the early 1990s, the litany of environmental threats became alarming: destruction of the stratospheric ozone layer, climate change, ecosystem acidification, the sheer loss of biological diversity, over-exploitation of marine resources, increased technological risks, etc. The emergence of an array of increasingly unpredictable risks enticed the authorities to base their policy on an anticipatory model. This model can be linked to the understanding of the limitations of scientific expertise. While prevention is based on the concept of certain risk, the anticipatory model is distinguished by the intrusion of uncertainty. Metamorphosed into a factor for revealing uncertainty, science raises controversies as often as it offers robust knowledge. The entire foundation of the ‘assimilative’ approach, which rests upon a blind confidence in science, is thus crumbling under the pressure of uncertainty. In a nutshell, the differences between prevention and precaution are over how experts know what causes the phenomenon and what the decision-makers’ responsibility is in light of that knowledge.9 Against this background, it became increasingly difficult to explain trends in global warming. Experts quickly took the view that mitigation should prevail over a curative approach. However, this statement does not resolve the issue as to the manner in which mitigation measures have to take uncertainties into consideration. Climate law does not ignore precaution. The precautionary principle was regularly invoked in the 1990s with respect to climate change issues, although the term precautionary approach rather than precautionary principle was favoured by Anglo-Saxon countries. In 1992, the right to adopt precautionary measures was enshrined in the UN Framework Convention on Climate Change (UNFCCC). At that time, the recognition of precaution in a major international agreement was deemed to be a breakthrough. This chapter seeks to analyse the implications of the precautionary principle on mitigation measures. After highlighting the specific features of climate change risks and highlighting the

The assimilative capacity of a component of the environment can be defined as the amount of material that could be contained within this component without producing unacceptable biological impacts. See E. D. Goldberg (ed.), ‘Assimilative Capacity of US Coastal Waters for Pollutants Proceedings of a Workshop at Crystal Mountain, WA’, NOAA Working Paper No. 1 (US Department of Commerce, Washington DC, 1979). 8 N. de Sadeleer, Environmental Principles (2nd edn, Oxford University Press 2020) 121, 125–127. 9 Ibid., 165–167, 170–175, 243–44, 253. 7

Climate change mitigation and the precautionary principle  45 lingering uncertainties (sections 3 to 5), it will explore how the decision-making process could better integrate uncertainties. It concludes by outlining how limiting the most severe impacts of global warming will require the integration of uncertainties into the decision-making process.

1

FALSE NEGATIVE V FALSE POSITIVE: THE RISE OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL CLIMATE LAW

Uncertainty affects both the likelihood of an event and when – and to what extent – it will produce damage. In a context of incomplete knowledge regarding climate change speed and impacts in the course of the 1980s, the international community was confronted with the following dilemma. Should the public authorities opt for a delayed regulatory approach with the aim of reducing the margin of uncertainty? Should they give credence to climatologists who predict catastrophic natural disasters? Or should they endorse an immediate preventive approach to counter threats that were merely suspected? By avoiding hasty and precipitate measures, the wait-and-see or business-as-usual approach appears to favour a more efficient allocation of economic resources than a pre-emptive approach which would sacrifice economic welfare for the sake of avoiding an event that was not likely to occur (false positive errors).10 In effect, the accumulation of scientific knowledge resulting from this delay offers decision-makers some hope of counting in the long run on more advanced and cheaper technologies. However, the uncertainties inherent in scientific investigation could delay the adoption of essential measures to ward off irreversible damage in the absence of incontrovertible proof. It follows that the proponents of a delayed approach may conclude there is no impact when actually there is one (false negative errors). Table 3.1 shows the distinctions between these two schools of thought. At the end of last century, a number of states nevertheless pushed for the adoption of a precautionary strategy, limiting GHG emissions in response to the threat they pose to climate stability and the Earth’s system. In their view, the stakes were simply too high to delay the adoption of key international decisions. Any failure to act quickly would result in false negative errors. What is more, ‘it may be less costly to spread the costs of averting climate change by beginning mitigation efforts early, rather than to wait several decades and take actions after the problem has already advanced much further’.11 This led to the conclusion of the UNFCCC in 1992. All subsequent international agreements – the 1997 Kyoto Protocol and the 2015 Paris Agreement – have emerged from the Framework Convention. Whilst the UNFCCC defines the conditions under which precautionary measures can be implemented,12 the latter does not refer to precaution at all. Although the 1997 Kyoto Protocol does not mention the precautionary principle, precautionary action was nonetheless

10 Many critics were contending in 1992 that too bold an interpretation of the precautionary principle generates false positive errors leading to over-regulation at the expense of welfare considerations. 11 IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects, Contribution of Working Group III on Mitigation (Cambridge University Press 2014) 1.2.4 The Role of Uncertainty. 12 N. de Sadeleer, Environmental Principles (n. 8) 265–266.

46  Research handbook on climate change mitigation law Table 3.1

Wait-and-see and anticipatory approaches

Approach

Business-as-usual approach

Anticipatory approach

Advantage and disadvantages

A pre-emptive approach would sacrifice

A pre-emptive approach would avoid the

economic welfare

occurrence of irreversible damage

Should reduce the risk associated with

Should reduce the level of uncertainty in order

premature and costly measures

to foster optimal strategies

Sound science paradigm: Delay action until

Precautionary paradigm: Mitigate impacts

experts are able to provide strong evidence

irrespective of full scientific certainty

Types of action

Learn and then act

Better safe than sorry

Errors

False negative errors

False positive errors

Investment in research Paradigm

Table 3.2

Uncertainty in international treaties

Multilateral Environmental Agreement

1992 UNFCC

1997 Kyoto Protocol

2015 Paris Agreement

Level of uncertainty

High

Moderate

Increased confidence

strengthened at a time when scientific knowledge was still giving rise to conflicting opinions. The fact that, thanks to the reports of the Intergovernmental Panel on Climate Change (IPCC), a global consensus has been achieved regarding the anthropogenic cause of climate change perhaps explains the absence of any reference to precaution. Lastly, the Paris Agreement does not mention precaution at all. The following Table 3.2 highlights the manner in which uncertainties regarding the man-made origin of climate change have permeated these different agreements. Against this background, it was easier to reach a global agreement in Paris in 2015 than in 2009 in Copenhagen. Otherwise, one could also argue that the principle was embedded in a Framework Convention. As a result, there was no need to lay it down in further agreements. Needless to say, the proclamation of the precautionary principle in the UNFCCC has been a touchstone issue. Article 3(3) of the Convention provides for the following obligation: the Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.

Moreover, its Preamble calls upon parties to prevent damage even if there are ‘many uncertainties in predictions of climate change, particularly with regard to the timing, magnitude and regional patterns thereof’. Precaution is coined in the UNFCCC neither as a principle nor as an approach. In order to avoid such a debate, Article 3(3) grants the right to the parties to enact precautionary measures; it does not compel them to do so. In other words, it encapsulates a right to take preventive measures and not an obligation to act. Moreover, the adoption of the precautionary measures under the UNFCCC is likely to be limited by a number of thresholds, such as the irreversibility and the seriousness of the damage, and the cost-effectiveness of the measures. In effect, precautionary measures must ‘be cost-effective so as to ensure global benefits at the lowest possible cost’. Given that much damage won’t be easily translated into monetary terms, the benefits of climate change policies are difficult to estimate accurately.

Climate change mitigation and the precautionary principle  47 So far, it is difficult to assess whether state authorities took advantage of that provision in order to adopt precautionary measures.

2

LARGE-SCALE ADVERSE EFFECTS OF CLIMATE CHANGE

Before the Industrial Revolution,13 the amount of greenhouse gases (GHG) in the atmosphere remained relatively constant. Although the climate has been relatively stable over the past 8,000 years, since the last Ice Age, it is now changing rapidly as atmospheric concentrations of carbon dioxide (CO), methane (CH4), nitrogen oxides (NO and NO2), and various manufactured synthetic GHG have all risen significantly. The causes are manifold. Cheap energy has been a key driver of the extremely fast economic and demographic growth. Industry, as well as dwellings, have relied extensively upon coal and, later, on other fuels for combustion. From the 1960s, road traffic became a significant source of GHG emissions. In addition, the industrialization of agriculture and landfilling of waste have contributed to the doubling of the concentration of methane in the atmosphere since pre-industrial times. Furthermore, land-use changes due to massive deforestation around the world and the expansion of agriculture have been contributing to the amplification of the phenomenon. Although experts have been warning since 1979 that a doubling of the concentration of CO2 will result in average heating of between 1.5 and 4.5 degrees, little has been done to avert that tendency. Changes in temperature are occurring very rapidly. Whilst in 2020 the average temperature has only increased by around 1 °C above pre-industrial levels, the situation has already become critical within the regions that are most exposed to risks of drought, heatwaves and flooding. The rise in temperature is already causing unprecedented changes with catastrophic consequences for the Earth system. Moreover, rising temperatures do not represent the only problem; the oceans are also acidifying at an alarming rate. Whilst some animals seem to be adapting to changing conditions, the vast majority of species are unable to cope with the rise of temperatures, the change of precipitation patterns and the weather getting less predictable and more extreme. Given the need to settle in cooler ranges, some species might not be able to migrate (encountering physical obstacles or the lack of suitable habitats) while others, not having the ability to migrate or with a too narrow range, are likely to disappear.14 In almost all cases, new information results in more pessimistic forecasts. To sum up, the manifold impacts of climate change include, among others: ● ● ● ● ● ●

decrease of snow-covered areas, melting and shrinking of glaciers, retreat of the ice cap in the Arctic, ocean warming (serving as a huge energy pump) and ocean acidification, sea level rise, bleaching of coral reefs,

Article 2(1)(a) of the 2015 Paris Agreement requires its parties to hold ‘the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C’. However, the pre-industrial baseline is not defined. 14 M. R. Caldwell and M. Loughney Melius, ‘Coastal Issues’, in D. A. Farber and M. Peeters (eds), Climate Change Law (Edward Elgar Publishing 2016) 581. 13

48  Research handbook on climate change mitigation law ● ● ● ●

increase of extreme weather events such as heatwaves and fires, increase of precipitation in the northern hemisphere and decrease in the subtropics, shift of wild species range due to rising temperatures, species extinction.15

These impacts also mask other even more troubling surprises. Primary production, ecosystemic service stability and resource availability are all affected by this phenomenon.

3

SPECIFICITY OF CLIMATE CHANGE RISKS

The risks stemming from climate change are fundamentally different from earlier industrial types of risk. Indeed, climate risks are distinguished from industrial and technological risks both by their unpredictability over time and by the collective nature of the damage they are likely to cause. Indeed, their potential victims are less easy to identify than residents living near to a hazardous facility. First of all, climate change has much broader and more diffuse impacts than any other type of human activity. The regulatory response in order to prevent temperature rises is much more complex than within the traditional environmental field. In fact, the issue is more a question of the accumulation of GHG in the atmosphere due to mass production, globalization and free trade, intensive agriculture, along with increased transportation by road and air, than of emissions from a limited number of industrial plants whose pollution can be easily controlled and reduced. Secondly, as climate change is caused by an array of natural and human activities, experts cannot pinpoint the exact contribution of each of these activities to the phenomenon. For instance, methane – the second largest contributor to human-induced global warming – is emitted by both intensive agriculture and by natural sources which include wetlands, freshwater bodies, wildfires, and permafrost. To make matters more complicated, some gases have more powerful heat-trapping effects than others. Nitrous oxide (N2O) has a heat-trapping effect about 310 times more powerful than CO2 and methane’s heat-trapping effect is 25 times more powerful than CO2. Halocarbons are hundreds to thousands of times more potent than CO2 and remain in the atmosphere for centuries. Thirdly, the changes are unprecedented, at least since the end of the last Ice Age. The pace of change is swift compared to ordinary historic rates of climate change, and is also outpacing the ability of ecosystems to adjust.16 In contrast to industrial risks, we cannot learn from past experience. Given the novel nature of the threat, it would appear appropriate for decision-makers to act in accordance with the precautionary principle, which applies precisely where experts cannot reckon on former experience.

IPCC, ‘Summary for Policymakers’ in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects, Contribution of Working Group III on Mitigation (Cambridge University Press 2014). 16 J. P. Holdren, ‘Introduction’, in S. Schneider and al., Climate Change Science and Policy (Island Press 2009) 5. 15

Climate change mitigation and the precautionary principle  49 Fourthly, the anticipated winners and losers from climate change are distributed unevenly throughout time and space,17 an issue which gives rise to difficult questions of equity (e.g. the principle of common but differentiated responsibility). Fifthly, irrespective of the considered scenario, the IPCC underlines how it is ‘virtually certain that there will be more frequent hot and fewer cold temperature extremes over most land areas on daily and seasonal timescales as global mean temperatures increase. It is very likely that heatwaves will occur with a higher frequency and duration.’18 Thanks to considerable scientific research, some uncertainties are being reduced. For instance, in its ‘Summary for Policymakers’ of the Sixth Assessment Report, the IPCC Working Group II is of the view that the level of risk is becoming high to very high at lower global warming levels than in the Fifth Assessment Report.19 That being said, although the growing body of expertise gathered since the creation of the IPCC has enormously increased our knowledge of the climate system, given its scope and novelty, climate change issues are still permeated by uncertainty. In effect, scientists are unable to determine with precision the regularity, frequency and magnitude of impacts, regardless of the quality of their models. The impacts climate change may provoke are thus likely to vary in terms of: ● time of latency between the increase of temperatures and the actual impact of damage (gradual or abrupt), ● speed (acceleration or deceleration), ● frequency of natural events (storms, floods, droughts, wildfires, erosion), ● duration (persistent, reversible, slowly reversible, irreversible, multigenerational), ● magnitude (cumulative or synergistic, serious or insignificant), ● localization (e.g. change in the regional distribution of precipitation, acidification of oceans, Arctic region warming more rapidly than the normal mean, warming over land greater than over the ocean, increased concentration of ozone), ● effects (human health, vulnerable countries, biodiversity loss, agricultural yields, tourism), ● and scale (global, continental, or regional).20 To further complicate matters, ● although the accurate quantification of anthropogenic and natural climate drivers is crucial for Earth system models, it is fraught with uncertainties, ● natural fluctuations in global temperature are ever-present, leading to multi-decadal and longer-term changes throughout the last millennium,21 and

H. Grassl and B. Metz, ‘Climate Change: Science and the PP’ in EEA Report 2013 (Publications Office of the European Union, 2014) 309. 18 IPCC, Climate Change 2013: The Physical Science Basis: Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2013). 19 IPCC, ‘Summary for Policymakers’, in Climate Change 2022, Impacts, Adaptation and Vulnerability, Contribution of Working Group II to the Sixth Assessment Report (Cambridge University Press 2022) 35. 20 N. de Sadeleer, Environmental Principles (n. 8) 262–263. 21 A. P. Schurer, ‘Importance of the Pre-Industrial Baseline in Determining the Likelihood of Exceeding the Paris Limits’ (2017) 7(8) Nature Climate Change 563–567. 17

50  Research handbook on climate change mitigation law ● variability is linked to natural forcing, particularly volcanic eruptions and anthropogenic aerosols. Uncertainty permeates all of these factors. In particular, it affects the calculation of the speed of the phenomenon as well as the nature and scope of the adverse effects it may entail. Against a backdrop of uncertainty, experts propose scenarios rather than assertions. The IPCC language of certainty is thus testament to the fact that there are many unknowns in the timing, magnitude and regional patterns of climate change,22 although many uncertainties have decreased over time. For instance, the 2019 IPCC’s Special Report on the Ocean and Cryosphere in a Changing Climate describes with ‘a very high confidence’ or ‘a high confidence’ a number of impacts of climate change (reduction in snow cover, increased permafrost temperature, shrinking of Arctic ice extent, etc.) and assesses as within a ‘likely’ or ‘very likely’ range forthcoming scenarios (ocean warming, sea-level rise, etc.). The fact is that temperatures are rising. Furthermore, the impacts are uneven. By way of illustration, at the North Pole, the observed temperature increase is twice as important as in lower latitudes. The most vulnerable regions vary across Europe. The intensity of precipitation has increased in the past 50 years in northern Europe whilst droughts are projected to increase in length and frequency in southern and south-eastern Europe. To make matters worse, the developing countries are likely to be more impacted than developed countries. In particular, climate change will exacerbate the problems in countries that experience chronic water shortages. In addition to having the least capacity to adapt, sub-Saharan Africa is expected to experience particularly harsh repercussions from climate change.23 Within countries, low-income communities – notably the ones established in coastal areas – are likely to be more severely impacted by sea level rises and hurricanes.

4

LINGERING UNCERTAINTIES

Uncertainty is neither an absolute, static nor clear-cut concept. As this term is subject to different interpretations, it is not an easy task to grapple with it. Scientific uncertainty exists whenever there is no adequate theoretical or empirical basis for assigning probabilities to the occurrence or the extent of a risk. As far as climate change risks are concerned, there is a strong deficit in predictive capability. Although evidence that climate change has a man-made origin has strengthened continuously since the 1995 IPCC report (from ‘very high confidence’ in the IPCC Assessment Report AR4 to ‘extremely likely’ in AR5), ‘the connections between emissions of GHGs and climate change are not yet fully understood’.24 Despite the efforts of the scientific community there is

P. Birnie, A. Boyle and C. Redgwell, International Law & the Environment (3rd edn, Oxford University Press 2009) 337. 23 O. Serdeczny et al., ‘Climate Change Impacts in Sub-Saharan Africa: From Physical Changes to their Social Repercussions’ (2017) 17 Regional Environmental Change 1585–1600. 24 IPCC, 2014 (n. 11). 22

Climate change mitigation and the precautionary principle  51 still no hope of fully understanding the complexities of the interactions of the atmosphere, the oceans, and GHGs.25 The following examples are illustrative of the hurdles faced by experts. ● Ecosystems do not respond in a linear way to the impacts of climate change. The absence of mitigation measures for ecosystems increases their vulnerability to degradation and collapse.26 ● The complex chain of feedbacks between climate and wildfires displays a large set of uncertainties. The adaptation of vegetation and ecosystems to fire is a complex topic. The effects of climate change on wildfire are likely to vary considerably according to the vegetation and by fuel availability or flammability (as a result of intense drought). The effect of wildfires in areas with different levels of species richness may be uneven.27 Forests with higher levels of protection for biodiversity conservation may display lower fire severity values whilst plantations are likely to be less resilient.28 ● Although oceans play a major role in global climate dynamics, considerable uncertainties remain regarding their influence on the climate systems.29 Their role as mitigating factor has been significantly underestimated.30 ● The cooling and warming effects of aerosols are dogged by uncertainty and accordingly complicate the assessment of climate sensitivity.31 ● With respect to the fate of many ecosystems and species, we are entering uncharted territory. In particular, although oceans and forests can undoubtedly reabsorb some portion of GHG emissions, increased evaporation of water from the ocean into the atmosphere is likely to result in more warming.32 To make matters worse, natural catastrophes such as fires are likely to become more frequent, in turn are giving rise to further emissions that have not been hitherto adequately accounted for in climate models. If warming accelerates evaporation, resulting in the formation of clouds, the latter could in turn strongly amplify the warming phenomenon (by trapping infrared radiation) rather than serving to stabilize it (by reflecting solar rays). In exploring such issues, scientists put forward scenarios rather than assertions. Moreover, other uncertainties are still lingering due to irreducible ignorance or disagreement between what is known and unknowable. For instance, epistemological uncertainty arises as a result of gaps in scientific knowledge. In other words, scientists know the effects of

IPCC, The Ocean and Cryosphere in a Changing Climate. Summary for Policymakers (2019). R. Kundis Craig, ‘Ocean Adaptation’, in D. A. Farber and M. Peeters (eds), Climate Change Law (Edward Elgar Publishing 2016) 569. 27 European Commission, JRC Technical Report. Forest Fire Danger Extremes in Europe under Climate Change: Variability and Uncertainty (Publications Office of the EU 2017) 17, 30. 28 M. J. Spasojevic, C. A. Bahlai, B. A. Bradley, B. J. Butterfield, M.-N. Tuanmu, S. Sistla, R. Wiederholt and K. N. Suding, ‘Scaling Up the Diversity–Resilience Relationship with Trait Databases and Remote Sensing Data: The Recovery of Productivity after Wildfire’ (2016) 22(4) Global Change Biology 1421–1432. 29 IPCC, 2014 (n. 11), 417. 30 IPSO, IUCN, ‘The State of the Ocean 2013, Perils, Prognoses and Proposals’ (2013) 74(2) Marine Pollution Bulletin 491–552 31 M. Mastrandrea and S. Schneider, ‘Climate Change Science Overview’, in S. Schneider et al. (eds), Climate Change Science and Policy (Island Press, 2009) 17–19. 32 Ibid., 21. 25 26

52  Research handbook on climate change mitigation law a situation, but are unable to ascertain the likelihood of their occurrence. Several factors might compound epistemological uncertainty. ● Indeterminacy. The causal relations are understood but the intensity of the relation between cause and effect cannot be estimated because the experts do not know all the factors influencing the causal chains. In this connection, climate change experts are unable to determine with precision the release of GHGs increasing the average temperature of the atmosphere. ● Ambiguity. The extent of any uncertainty is influenced by the way in which experts interpret the available scientific data. When considering the same data, two different experts may arrive at different conclusions as to whether or not there is any uncertainty. Contradictory results give rise to ambiguity. ● Inconclusiveness. The realities of science dictate that scientists, whatever the quality of their investigations, will never be able to eliminate some uncertainties; for instance, there may be too many unpredictable variables to enable the identification of the relative influences of each factor. ● Incommensurability. Given that the increase in temperature gives rise to manifold impacts, a multitude of hazards give rise to a problem of incommensurability. Regarding climate change, these subcategories are highly correlated. By way of illustration, the IPCC working group on mitigation has been stressing that ‘evaluation of uncertainty and the necessary precaution is plagued with complex pitfalls’. These include ‘the global scale, long time lags between forcing and response, the impossibility to test experimentally before the facts arise, and the low frequency variability with the periods involved being longer than the length of most records’.33 The remaining uncertainties are likely to be compounded by natural factors: resilience of ecosystems (their ability to bounce back from disturbances), reversibility or irreversibility of the damage, etc. The precautionary principle has real implications for risk managers when confronted with tipping points, beyond which abrupt and dramatic changes may occur. Some of these non-linear changes are related to positive feedbacks in the climate system and can therefore accelerate climate change.34 If a tipping point is crossed, the development of the system is no longer determined by the timescale of the forcing, but rather by its internal dynamics, which can be much faster than the forcing.35 A variety of tipping points have been identified. By way of illustration, large-scale singular events that are components of the global Earth system (slowdown of the AMOC, the El Niño–Southern Oscillation and the role of the Southern Ocean in the global carbon cycle) ‘are thought to hold the risk of reaching critical tipping points under climate change, and that can result in or be associated with major shifts in the climate system’.36 Other examples of non-linear irreversible change will be the increase in

IPCC, 2014 (n. 11), 10.4.2.2 Precautionary Considerations. Joint EEA–JRC–WHO Report, ‘Impact of Europe’s Changing Climate – 2008 Indicator-Based Assessment’ (EEA, 4/2008) 34. 35 IPPC, Climate Change 2007: Impacts, Adaptation, and Vulnerability (Cambridge University Press 2007) 83. 36 IPPC, Special Report Global Warming of 1.5 °C (World Meteorological Organization 2018) Chapter 3, 83. 33 34

Climate change mitigation and the precautionary principle  53 ocean acidity which would deplete marine biodiversity or the melting of permafrost caused by rising Arctic temperatures that could lead to an increase in methane emissions. Another case in point is the melting of snow and ice that have a high reflectivity (albedo). Up to 90% of the incident solar radiation is reflected by snow and ice surfaces. As the snow and ice are melting due to the higher temperatures, the oceans are likely to absorb the solar radiation and contribute to a greater extent to the heating of the climate system. How close are we to these tipping points?37 What will happen if they are reached? The risks associated with these major events become ‘moderate’ or ‘disproportionately high’ depending upon the increase in temperatures above pre-industrial levels.38 The level of scientific understanding of the crossing of these tipping points is low.39 Accordingly, the prospect of reaching a potential tipping point should enhance caution in this field. Last but not least, uncertainties can stem from more than a simple lack of data or an inadequate model of risk assessment. Aspects of uncertainty are associated with each link of the causal chain of climate change, beginning with GHG emissions, covering damage caused by climate change, followed by a swath of mitigation and adaptation measures. Accordingly, the IPCC reports project various GHG concentrations, varying due to a range of scenarios that are underpinned by different political, socio-economic, technological and demographic developments. In particular, damage estimates are prone to low confidence as they involve uncertainty in both natural and socio-economic systems.40 By way of illustration, there are a number of sources of uncertainty in wildfire modelling, as fire occurrence may additionally be linked with other, non-climatic factors (e.g. size and population density) that are also likely to evolve in the future. For example, fires near densely populated regions tend to be extinguished faster. Given the challenge of reliably projecting population, land use and cover, and their associated uncertainty under climate change scenarios, these relationships are difficult to assess.41 Although observed warming is unequivocal, for long-term impacts scientists are thus facing a high level of uncertainty compounded by an array of anthropogenic factors. ● Regarding the demographic trends, by 2050 the world population will likely grow to 9.9 billion and continue to grow well into the next century. This demographic growth is likely to increase the combustion of fuels and the emissions of GHG. ● Increase in trade and GDP growth, consumption patterns and energy policy choices are likely to lead to an increase of GHG emissions. ● Negative-emission technological innovations (carbon storage, ocean fertilization) could absorb some of the negative effects. However, given that these measures have not been tested on a large scale, their positive and negative impacts cannot be assessed; they may thus entail risk trade-offs.

37 According to the IPCC 2018 report, tipping points ‘refer to critical thresholds in a system that, when exceeded, can lead to a significant change in the state of the system, often with an understanding that the change is irreversible’. IPPC, 2018 (n. 36) 262. 38 IPPC, 2018 (n. 36) 83. 39 OECD, Environmental Outlook to 2005. The Consequences of Inaction (OECD, 2012) 87. 40 IPCC, 2014 (n. 11), 10.4.2.2 Precautionary Considerations. 41 European Commission, JRC Technical Report. Forest Fire Danger Extremes in Europe under Climate Change: Variability and Uncertainty (Publications Office of the EU 2017) 3.

54  Research handbook on climate change mitigation law ● Last but not least, potential effects of mitigating measures (investment in renewables, decarbonization of the economy, abatement policies) could play a positive role. Many ecosystems respond to anthropogenic stressors in a non-linear way.42 As a result, the intermingling of these natural and socio-political factors prevents clear-cut answers from being made. No matter how sophisticated the climate models, they will never fully capture the reality. So long as the science surrounding climate change is encumbered with a high level of uncertainty, the principle will have real implications for risk managers, in particular when they are confronted with the risk of crossing tipping points. They should therefore incorporate non-linear, unpredictable and extreme events, worst-case scenarios as well as impacts beyond 2100 into their climate change abatement and mitigation strategies.

5

SHAPING MITIGATION MEASURES

Needless to say, the transition to more resilient societies will require both adaptation and mitigation measures. The dividing line between these two categories of measures is a fine one. The former aim ‘at reducing unavoidable negative impacts already in the shorter term, reducing vulnerability to present climate variability, and exploiting opportunities provided by climate change’ 43 whilst mitigation measures aim at minimizing GHG emissions in order to limit the long-term adverse impacts of climate change. As stressed in the IPCC 5th ACR, when the overwhelming evidence is so compelling and the costs are mounting, ‘substantial and sustained reductions of GHGs emissions’ are required to limit further climate change.44 While there is no single recipe for a successful climate policy mix, there are certainly some instruments that are likely to be more effective than others.45 Given that the precautionary principle does not command any specific measure, each mitigation measure has to be determined on a case-by-case basis, taking into consideration the different socio-economic contexts. These measures may take the form of, inter alia, bans, restrictions, authorizations, emissions abatement, notifications, surveillance, requirements of best available technology (BAT), cap and trade, carbon taxes, fees, removing fuel subsidies, etc. Moreover, the activities likely to be subject to precautionary climate change measures may range from listed installations to aviation.46 As risk assessment interacts constantly with risk management, opposing science to precaution is unproductive. In climate change, uncertainty is the rule, rather than the exception. Scientists are not called on to remove uncertainties. However, in approaching the long-term adverse effects of this phenomenon, they must inform the decision-makers that the situation is

M. R. Caldwell and M. Loughney Melius, ‘Coastal Issues’ in D.A. Farber and M. Peeters (eds), Climate Change Law (Edward Elgar Publishing 2016) 581. 43 Joint EEA–JRC–WHO Report, ‘Impact of Europe’s Changing Climate – 2008 Indicator-Based Assessment’ (EEA, 4/2008) 35. 44 IPCC, ‘Summary for Policymakers’ in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects, Contribution of Working Group III on Mitigation (Cambridge University Press 2014), 19. 45 OECD, Environmental Outlook to 2005. The Consequences of Inaction (OECD 2012) 91. 46 See Case C-366/10 ATAA (2011) C:2011:864. 42

Climate change mitigation and the precautionary principle  55 shrouded in scientific uncertainty. As we are facing the possibility of irreversible large-scale effects, they play a key role in apprising the decision-makers, although they are more likely to put forward scenarios than assertions. In this context, risk assessors should not discount long-term non-linear effects that are subject to greater uncertainty; they have to take into consideration all the uncertainties involved. In particular, environmental impact assessments (EIA) and strategic environmental assessments should not only reduce uncertainty but also explicitly acknowledge sources of uncertainty that remain, instead of burying these in mere assumptions.47 Both quantitative and qualitative dimensions of uncertainty have to be explained thoroughly. As a result, the identification of any lingering uncertainties should trigger a greater level of caution among decision-makers. An even more important step would be for the EIA procedure to force decision-makers to consider a number of reversible courses of action in order to take advantage of new knowledge. Even if it means forgoing a project, the author of an EIA should recommend reversible options in preference to those that are irreversible. The search for variants should become his principal task.48 Whilst the precautionary principle makes it difficult to delay adopting measures to prevent environmental degradation on the grounds that scientific certainty has not been established, scientific certainty or ‘sound science’ can no longer, a contrario, be considered as the absolute benchmark for long-term decision-making. Indeed, as has been acknowledged by the IPCC, uncertainty is not an argument for delaying action. Accordingly, decision-makers must take full account of the various scenarios set forth by experts and ask themselves how those potentially impacted can take steps to reduce the adverse impacts through better ecosystemic management.49 In particular, they should pay heed to the considerably extended timescales, as uncertainty prevails mainly during the period between a cause and the subsequent manifestation of a harmful effect. A full integration of the quantitative and qualitative dimensions to uncertainty should help them to better address long-term risks. By way of illustration, ocean warming has contributed to an overall decrease in maximum catch potential, compounding the impacts from overfishing for some fish stocks.50 Regarding fisheries that have been subject to over-exploitation, precaution should entice the agencies to err on the safe side. Regardless of the quality of the mitigation measures adopted so far, the build-up of GHG in the atmosphere is causing temperatures to rise. What matters is that precautionary measures are put in place with a view to achieving the level of protection stipulated by the parties in the Paris Agreement. The issue of how to determine an acceptable risk level has been fraught with controversies as the UNFCCC aims to stabilize GHG concentrations in the atmosphere ‘at a level that would prevent dangerous anthropogenic interference with the climate system’.51 This objective was further clarified in 2015. The Paris Agreement aims to prevent ‘the increase in the global average temperature to well below 2 °C above pre-industrial levels’ and ‘pursuing

N. de Sadeleer, Environmental Principles (n. 8) 341. Ibid., 342. 49 A. Dan Tralock, ‘Water Availability and Allocation’ in D. A. Farber and M. Peeters (eds), Climate Change Law (Edward Elgar Publishing 2016) 546. 50 IPCC, The Ocean and Cryosphere in a Changing Climate. Summary for Policymakers (2019) 13. 51 UNFCCC, Art. 2. 47 48

56  Research handbook on climate change mitigation law efforts to limit the temperature increase to 1.5 °C’.52 Although such an objective strengthens the global response to the threat of climate change, these safe levels are nonetheless problematic due to lingering uncertainties. Any threshold is thus questionable. Finally, the precautionary principle could buttress the duty to cooperate ‘in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem’.53 The mention of the Earth’s ecosystem implies the oneness of that system in contrast to the division of the Earth into territorial states.54 Within the context of cooperation, developed countries should bear a larger responsibility in making abatement technologies available to developing countries. On a final note, it should be pointed out that the precautionary principle does not play any role in deciding how to allocate the costs of the preventive and mitigation measures. This issue must be resolved with reference to the precautionary principle and the principle of common but differentiated responsibility.55

6

CONCLUDING REMARKS

Although there is no doubt that the observed climate change is for a significant part attributable to the growth in human activities in the aftermath of the Industrial Revolution, the contribution of each activity to the phenomenon, the timing and the magnitude of the adverse effects are still heavily encumbered with uncertainty. Although the uncertainty has decreased over recent decades due to better methodologies and the work of the IPCC, it is still significant for long-term impacts, partly resulting from a lack of knowledge of the climate systems and the limitations of scientific research. So far, there is no way to quantify the probability of the occurrence and the magnitude of each of the manifold impacts, in particular at local level. Moreover, experts are facing difficulties in expressing the probability of the occurrence of a number of adverse effects. They have to reckon on a rather vague terminology such as ‘low probability’, ‘poorly known probability’, etc. Accordingly, the experts have to address both the quantitative and qualitative dimensions of the climate risks. Risk assessment has to integrate extreme events as well as worst-case scenarios. Whilst the scientific research community has been gathering more accurate and reliable evidence regarding the actual and potential impacts of climate change, it is much more difficult to calculate the risk of reaching or passing critical tipping points that entail possible large-scale and irreversible impacts. Despite the increasingly overwhelming evidence regarding the impacts of climate change, action is still sluggish. As a result, the international community is still falling short of adopting a robust GHG abatement strategy. Political decisions are not consistent with the emissions ceilings proposed to achieve the UNFCCC and the Paris Agreement objectives, and perhaps

Art. 2(a). Principle 7, Rio Declaration. 54 M. Bothe, ‘Whose Environment? Concepts of Commonality in International Environmental Law’ in G. Winter (ed.), Multilevel Governance of Global Environmental Change (Cambridge University Press 2006) 544. 55 UNFCC, Art. 3. 52 53

Climate change mitigation and the precautionary principle  57 will still not be in the near future.56 Admittedly, there is a fundamental incongruence between the speed of the Promethean exploitation of the biosphere and the slow implementation of mitigation measures.57 Therein lies the paradox.

Grassl and Metz (n. 17), 336. G. Winter, ‘Introduction’, in G. Winter (ed.), Multilevel Governance of Global Environmental Change (Cambridge University Press 2006) 3. 56 57

PART II CLIMATE CHANGE MITIGATION LAW AND POLICY IN THE REGIONS

4. The European Union and its rule-creating force on the European continent for moving to climate neutrality by 2050 at the latest Marjan Peeters and Delphine Misonne

INTRODUCTION Since the very first steps of global climate governance, the European Union has taken responsibility for addressing climate change.1 It did so particularly by means of taking an active role as a party to international treaties in the field of climate change, and by adopting a broad package of internal EU laws, even if the interplay between internal and external action was often the sort of ‘je t’aime, moi non plus’ relation.2 Stimulating sufficient ambition across the world was closely related to the need to overcome an awkward internal disagreement, as discussed by Kati Kulovesi, on how to steer the Union towards effective mitigation of its own emissions.3 Altogether, developing internal frameworks and exerting influence through bilateral or regional cooperation4 contributed to efforts to push the international agenda forward.5 In its internal order, the EU has built strong steering powers to address climate change by means of legal instruments, and has done so within the context of its fundamental values such

1 In a 1989 resolution of the Council the need for the (then) European Economic Community and the Member States to play their full part in the definition and implementation of a global response to the problem, and this without delay, was already asserted: Council resolution of 21 June 1989 on the greenhouse effect and the Community OJ C 183, 20/07/1989 P. 0004–0005. 2 An expression evoking a paradoxical love-hate relationship. 3 Kati Kulovesi, ‘Climate Change in EU External Relations: Please Follow My Example (Or I Might Force You To)’, in Elisa Morgera (ed.), The External Environmental Policy of the European Union (Cambridge University Press 2012), 115; Marc Pallemaerts, ‘Le cadre international et européen des politiques de lutte contre les changements climatiques’ (2004) 33 (no 1858–1859) Courrier hebdomadaire du CRISP 5–61, DOI 10.3917/cris.1858.0005, Chapter 5 on the EU policy on climate change (in French), evoking all early steps of the EU policy on climate change since 1989. The EU played, for instance, a decisive role in the adoption of the Kyoto Protocol, with the consequence that Member States had thereafter little other choice than to adopt legislation meant to comply with the new international duties. 4 See also in this respect the discussion of so-called ‘minilateralism’: Kati Kulovesi, ‘Addressing Sectoral Emissions outside the UNFCCC: What Roles for Multilateralism, Minilateralism and Unilateralism?’ (2012) 21 Review of European, Comparative & International Environmental Law (RECIEL), 193; Scott Barrett, Why Cooperate? The Incentives to Supply Global Public Goods (Oxford University Press 2007). 5 Elisa Morgera and Kati Kulovesi, ‘The Role of the EU in Promoting International Standards in the Area of Climate Change’, University of Edinburgh School of Law Research Paper No. 2013/22, p. 15, also in Poli et al. (eds), EU Governance of Global Emergencies (Brill 2013). The following authors also use the concept of minilateralism; Joanne Scott and Lavanya Rajamani, ‘EU Climate Change Unilateralism’ (2012) 23 European Journal of International Law, 469; Tom Delreux and Sander Happaerts, Environmental Policy and Politics in the European Union (Palgrave 2016), 205–230.

59

60  Research handbook on climate change mitigation law as democracy and, particularly, the rule of law.6 Indeed, in this specific international construct in which 27 states participate, law is a key driving force, which can be illustrated by the fact that EU law has primacy over the laws of the Member States,7 and that the EU judicial system specifically intends to ensure consistency and uniformity in the interpretation of EU law.8 With respect to addressing climate change, the European Union legislator is entrusted with a competence to adopt legally binding regimes in the field of the environment and energy.9 Such EU legislation applies to the territory of all Member States and impacts actors even beyond. Consequently, the European Union is without doubt a (potentially) powerful rule creator with respect to addressing climate change on the European continent. In order to understand the law-making force of the European Union in the field of climate change, this chapter focuses on newly established key elements of EU climate legislation, as developed in the context of implementing the Paris Agreement. The legislative developments are, particularly since 2018, impressive in terms of number and complexity.10 Moreover, with the Green Deal,11 the European Commission, as in office since 1 December 2019, is determined to accelerate further rule creation in order to translate political promises into practice. The following statement made by Mrs Ursula von der Leyen (now President of the Commission), before the European Parliament in 2019 illustrates the high ambition: ‘I want Europe to become the first climate-neutral continent in the world by 2050.’12 6 As codified in the Treaty on European Union (TEU), Article 2. The extent to which EU institutions respect the rule of law in practice (including the way in which this principle is interpreted) is one of the fundamental questions of EU law research. 7 Nonetheless, see the debate on national courts retaining ultimate authority with regard to legal interpretation and application of EU law in Richard Avinesh Wagenländer, ‘An Order of Deferential Monism: Why the Bundesverfassungsgericht’s PSPP Ruling Merely Restates the Limits of the EU Legal System’, European Law Blog 6 January 2021. 8 Opinion 2/13 (Accession of the EU to the ECHR) of 18 December 2014, EU:​C:​2014:​2454, paragraph 174. The Court of Justice of the European Union (CJEU) has the power to decide on the legality of EU acts and has the power to impose financial penalties on Member States after an action started by the European Commission. 9 As far as the competence of the EU reaches: the EU does not have full authority on all state matters but EU competence is based on the principle of conferral, and the use of competences is governed by the principles of subsidiarity and proportionality; see Article 5 TEU discussed by Robert Schütze, ‘EU Competences. Existence and Exercise’, in Anthony Arnull and Damian Chalmers, The Oxford Handbook of European Union Law (Oxford University Press 2015) 75ff. See, on the EU environmental competence(s), including its relationship with energy competence and the limits provided by the treaties, but also the quite pro-EU interpretation by the CJEU, Helle Tegner Anker, ‘Competences for EU Environmental Legislation: About Blurry Boundaries and Ample Opportunities’, in Marjan Peeters and Mariolina Eliantonio, Research Handbook on EU Environmental Law (Edward Elgar Publishing 2020) Chapter 2. 10 See for an account: Marjan Peeters, ‘EU Climate Law: Largely Uncharted Legal Territory’ (2019) 9 Climate Law 137–147. 11 Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions – The European Green Deal, COM(2019) 640 final. 12 Ursula von der Leyen, (in her position as) Candidate for President of the European Commission Opening Statement in the European Parliament Plenary Session, Strasbourg 16 July 2019, available at https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​speech​_19​_4230; see also ‘A Union that strives for more. My agenda for Europe, Political Guidelines for the Next European Commission 2019–2024’, https://​ec​.europa​.eu/​commission/​sites/​beta​-political/​files/​political​-guidelines​-next​-commission​_en​.pdf; see also on YouTube https://​www​.youtube​.com/​watch​?v​=​8UrMwYDa​_yU 22 January 2020, containing

The EU and its rule-creating force for climate neutrality by 2050  61 However, from a geographical perspective, the EU consists of only 27 Member States while the European continent consists of more than 47 countries.13 Nonetheless, the EU can exert important influence on other countries in Europe and even beyond in the sense of stimulating them to adopt rules addressing climate change that are aligned to – or even connected to – the EU climate law package. The fact that Switzerland has decided to link to the EU Emissions Trading System (EU ETS), is illustrative of that concrete influence,14 as is the fact that Norway, Iceland and Liechtenstein – not being members of the EU – have also taken part in the EU ETS since 2008.15 Furthermore, in respect of other EU climate regulatory action, cooperation also takes place with Norway and Iceland: both countries have agreed to apply two important EU climate laws, being the Effort Sharing Regulation16 and the Land Use, Land Use Change, and Forestry Regulation17 (LULUCF).18 Even more regulatory influence can be exerted by the EU on other countries in Europe; for example, the EU expects candidate countries, with which negotiations are taking place for accession to the EU, to implement the EU

the statement ‘Europe will be the world’s first climate-neutral continent by 2050’ (all media accessed 2 August 2020). 13 For instance, the Council of Europe has 47 parties, but even more countries exist in Europe, such as Kosovo, which declared independence in 2008. See for the map of parties to the Council of Europe https://​www​.coe​.int/​en/​web/​portal/​47​-members​-states (accessed 2 August 2020). More accurate is the following expression in the context of the Green Deal Investment Plan: ‘The European Union is committed to becoming the first climate-neutral bloc in the world by 2050.’ https://​ec​.europa​.eu/​regional​ _policy/​en/​newsroom/​news/​2020/​01/​14​-01​-2020​-financing​-the​-green​-transition​-the​-european​-green ​ -deal​-investment​-plan​-and​-just​-transition​-mechanism (accessed 2 August 2020). 14 According to information provided by the European Commission, this linking basically entails a ‘mutual recognition of EU and Swiss emission allowances when surrendering allowances to cover emissions’, see https://​ec​.europa​.eu/​clima/​policies/​ets/​markets​_en (accessed 2 August 2020). To take effect, further decision-making is needed. The regulatory design and consequences of such linking, including the rate of compliance with imposed obligations, need to be further studied. See on linking, for instance, Andreas Tuerk and Andrj F. Gubina, ‘Linking Emission Trading Schemes: Concepts, Experiences and Outlook’, in Stefan E. Weishaar (ed.), Research Handbook on Emissions Trading (Edward Elgar Publishing 2016) 309–326. 15 These countries are party to the European Economic Area and the European Free Trade Association; see the official website: https://​www​.efta​.int/​eea (accessed 23 August 2020). The European Economic Area (EEA) compromises the EU Member States and the three EEA EFTA States (Iceland, Liechtenstein and Norway) in an Internal Market, with, in principle, the same package of rules. See, in respect of these three states’ participation in the EU ETS since 2008: https://​www​.efta​.int/​EEA/​news/​ Revised​-ETS​-Package​-incorporated​-EEA​-Agreement​-909 (accessed 23 August 2020). 16 Regulation 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No. 525/2013 [2018] OJ L156/26. 17 Regulation 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land-use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No. 525/2013 and Decision No. 529/2013/EU [2018] OJ L156/1 (LULUCF Regulation). 18 European Commission, ‘The European Union, Iceland and Norway Agree to Deepen their Cooperation in Climate Action’ (25 October 2019) https://​ec​.europa​.eu/​commission/​presscorner/​detail/​ en/​IP​_19​_6160: this document states that Iceland and Norway commit to binding annual greenhouse gas emission targets for the period 2021–2030 for those sectors of the economy that fall outside the scope of the EU Emissions Trading System, and that with regard to LULUCF same obligations and accounting rules will apply as in EU Member States.

62  Research handbook on climate change mitigation law acquis at the time of accession;19 or within the European Neighbourhood Policy, governing the EU’s relations with 16 of the EU’s closest eastern and southern neighbours.20 While this illustrates the (potential) large influence the EU has within the European continent, the EU has faced a dramatic moment in its history with the withdrawal of the United Kingdom from being a Member State on 31 December 2019, including the fact that the UK has left two core climate change instruments of the EU, being the EU Emissions Trading Scheme and the Effort Sharing approach. Nonetheless, the principle of ‘non-regression’,21 which also covers carbon pricing, that has been agreed on between the EU and the UK, serves as a starting point for comparing development in the EU and the UK, although the comparison of potentially different regulatory approaches, including those that would not have fixed emission limits such as a cap or that allow fluctuating prices, can pose methodological challenges.22 Even though the EU has less geographical scope after Brexit, with only 27 Member States, its rule-creating efforts (including its success and shortcomings) can still be examined as a benchmark for other countries on the European continent, and perhaps also for other countries and regions in the world. The purpose of this chapter is not to give a thorough understanding of EU climate legislation as it has developed over the years: one single chapter does not provide enough space for such a discussion. Instead, it focuses on selected new topics of EU climate law that seem of core relevance for the future effectiveness of EU climate action. In light of this, section 2 focuses on the new concept of ‘climate neutrality’ and its proposed codification in EU law, as a means to implement the Paris Agreement. Section 3 delves into the internal competence (and limited powers) for EU climate legislation and some legislative instruments, with special attention paid to legislation aiming to streamline investment in sustainable activities. Section 4 discusses the emergence of climate litigation in light of the relatively ambitious package of EU climate legislation. The chapter will be rounded off with a look into the future of the regulatory approach of the European Union in the field of climate change: until now, hard law has set the foundation for effectuating the decrease of emissions, but new regulatory approaches have been established, the effectiveness of which has yet to be proven. The potential role of national climate litigation is also emphasised.

See for further information provided by the European Commission, also on potential candidate countries: https://​ec​.europa​.eu/​environment/​enlarg/​candidates​.htm. 20 To the South: Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestine, Syria and Tunisia; and to the East: Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine. 21 As codified in Article 7.2(2): ‘A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection’, and Article 7.3(5): ‘Each Party shall maintain their system of carbon pricing insofar as it is an effective tool for each Party in the fight against climate change and shall in any event uphold the level of protection provided for by Article 7.2 [Non-regression from levels of protection]’, Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, OL L444/14, 31.12. 2020. 22 See the principle of non-regression in the explanation mentioned in the previous note. The note also points to a possible linking of a new UK ETS with the EU ETS. 19

The EU and its rule-creating force for climate neutrality by 2050  63

1

ACHIEVING CLIMATE NEUTRALITY IN 2050 IN THE EU IN VIEW OF THE PARIS AGREEMENT

1.1

The EU’s Role with Regard to International Approaches Addressing Climate Change

In the TFEU, promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change, is affirmed as of one the main goals of European policy on the environment.23 Meanwhile, the EU is a party to all main treaties on climate change, including the Paris Agreement.24 Member States are also parties to the Paris Agreement, with arrangements being made with the European Union on issues such as leading the negotiations or submitting the nationally determined contributions (NDC).25 While being a party to multilateral climate agreements such as the Paris Agreement, the EU has also tried to achieve climate action by a more stringent unilateral regulatory approach. This happened particularly when the international community did not respond, such as with regard to regulating aviation emissions, on which there was no effective international action in the first decade of this century. In view of this international regulatory gap, the EU legislator decided to stop waiting and to include international flights arriving and departing from EU territory in its EU ETS, which action was found lawful by the Court of Justice of the EU (CJEU).26 Nonetheless, given international resistance to this unilateral pressure, this regulatory approach has been watered down by excluding the applicability of the EU ETS from flights to and from countries not covered by this instrument.27 It is an example of, on the one hand, the willingness of the EU to regulate greenhouse gas emissions more effectively, and, on the

Article 191, §1, TFEU. This external action is the logical consequence of an internal competence to regulate the reduction of greenhouse gases. See Kulovesi (n. 3), 115. 24 The EU is, together with its Member States, a party to the UNFCCC, the Kyoto Protocol, the Doha Amendment and the Paris Agreement. Of course, the EU can only act as far as its competences allow. For instance, the declaration of the EU to the Paris Agreement states that ‘the commitment contained in its intended nationally determined contribution submitted on 6 March 2015 will be fulfilled through joint action by the Union and its Member States within the respective competence of each’; see https://​unfccc​ .int/​files/​focus/​ndc​_registry/​application/​pdf/​xxvii​-7d​_european​_union​_ndc​.pdf (accessed 2 August 2020). This notion of joint action is maintained in the updated NDC of December 2020. 25 Delreux and Happaerts (n. 5), 205–253. 26 CJEU, Case C-366/10, The Air Transport Association of America, American Airlines, Inc., Continental Airlines, Inc., United Airlines, Inc. v The Secretary of State for Energy and Climate Change [2011] OJ C260/9 (‘Case C-366/10’), Reference for a Preliminary Ruling from High Court of Justice Queen’s Bench Division (Administrative Court) (United Kingdom) made on 22 July 2010. Kati Kulovesi, ‘Make Your Own Special Song even if Nobody Else Sings Along: International Aviation Emissions and the EU Emissions Trading Scheme’ (2011) 2 Climate Law 535; Hans Vedder, ‘Diplomacy by Directive: An Analysis of the International Context of the Emissions Trading Directive’ in Malcolm Evans and Panos Koutrakos (eds), Beyond the Established Legal Orders – Policy Interconnections between the EU and the Rest of the World (Hart 2011); Morgera and Kulovesi (n. 5), 16. 27 Re-inclusion of international flights is still under consideration: in the Commission Communication, ‘Stepping up Europe’s 2030 climate ambition’ (COM(2020) 562 final of 17 September 2020) it is stated: ‘International cooperation on … aviation is desirable’ but should also be effective (p. 16). In light of this, the Commission puts forward ‘the ambition to include international emissions from aviation … into the EU ETS’. In this sense, the original situation where external flights were included, would, somehow, revive. 23

64  Research handbook on climate change mitigation law other hand, the (political) difficulty of taking unilateral action on the global problem of climate change when the multilateral approach falls short. With regard to the implementation of the Paris Agreement concluded on the European continent, the EU tries to take a lead, as it did before, in respect of the powers it retains according to the Treaties.28 This must be understood in the light of the Paris Agreement, together with the content of the latest reports of the Intergovernmental Panel on Climate Change (IPCC) showing how seriously and urgently an additional policy answer is needed.29 The Paris Agreement relies on the proactive and progressive actions parties will adopt individually, a specificity that can be further strengthened if subjected to a high degree of public pressure. While the European Council (providing political guidance to the European Union but not having regulatory power) concluded in 2014 – so before the Paris Agreement – that the EU should achieve a reduction of at least 40% in greenhouse gas emissions by 2030,30 new collective global goals as asserted in Paris require further commitments from the European Union. After new political guidance from the European Council for a more ambitious target, an updated nationally determined contribution was submitted in December 2020, with the pledge that the EU and its Member States, acting jointly, are committed to a binding target of a net domestic reduction of at least 55% in greenhouse gas emissions by 2030 compared to 1990.31 This EU pledge is part of a wider process across the EU continent. For example, Norway (not an EU member) had already submitted – before the EU did – an updated nationally determined contribution with a target of at least 50% reduction by 2030, thereby pointing towards cooperation with the EU for the increased ambition.32 In that sense, it is interesting to see that a third country officially puts forward, at the time of submission, a higher ambition (50%) See, regarding internal competence for climate action, section 3.1 below. See IPCC, ‘Summary for Policymakers’ in V. Masson-Delmotte et al. (eds), Global Warming of 1.5 °C. An IPCC Special Report on the impacts of global warming of 1.5 °C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty  (World Meteorological Organization 2018); IPCC, Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC 2015). 30 Conclusions of the European Council of 23–24 October 2014. Additionally, the EU has adopted measures with regard to renewable energy and energy efficiency. It is expected that ‘the agreement by the European Parliament and the Council to raise the targets for renewables and energy efficiency to 32% and 32.5% respectively by 2030 … will result in GHG emission reductions of over 45% by 2030’, see European Parliament, Resolution on the 2018 UN Climate Change Conference in Katowice, Poland (COP24), 25 October 2018, 2018/2598(RSP), available at https://​oeil​.secure​.europarl​.europa​.eu/​oeil/​ popups/​printficheglobal​.pdf​?id​=​690200​&​l​=​en. 31 UNFCC, NDC registry, available at https://​www4​.unfccc​.int/​sites/​ndcstaging/​Pages/​Party​.aspx​ ?party​=​EUU​&​prototype​=​1 (consulted on 31 December 2020). The European Council endorsed this target in its meeting from 10–11 December 2020, see https://​www​.consilium​.europa​.eu/​media/​47296/​ 1011​-12​-20​-euco​-conclusions​-en​.pdf. 32 Update of Norway’s nationally determined contribution (undated document – the website of the UNFCCC mentions 7 February 2020): By this submission, Norway updates and enhances its nationally determined contribution under the Paris Agreement to reduce emissions by at least 50 per cent and towards 55 per cent compared to 1990 levels by 2030. Norway seeks to fulfil the enhanced ambition through the climate cooperation with the European Union. In the event that Norway’s enhanced nationally determined contribution goes beyond the target set in the updated nationally determined contribution of the European Union, Norway intends to use voluntary cooperation under Article 6 of the Paris 28 29

The EU and its rule-creating force for climate neutrality by 2050  65 compared to the EU (40%), thereby, however, pointing at necessary cooperation with the EU (and in view of the yet to be further elaborated Article 6 of the Paris Agreement33) to achieve the increased ambition. Furthermore, the United Kingdom has pledged an even more ambitious reduction target compared to the NDC from the EU and its Member States, by means of an economy-wide net greenhouse gas emission target of at least 68% reduction in the UK by 2030.34 Such a difference between the EU NDC and the UK NDC needs further consideration, in view of the requirements of the Paris Agreement too. While generally at EU level, it is not required to pursue the highest possible environmental ambition, the Paris Agreement specifically asks parties to reflect ‘its highest possible ambition’ in their nationally determined contribution.35 How this international obligation has to be interpreted by a regional organisation such as the EU – allowing more stringent action by its Member States as stipulated in Article 193 TFEU for environmental measures, but submitting a joint declaration – needs further consideration and may be included in litigation strategies. The international context also consists of important developments in the area of trade and investment guarantees. For the first time indeed, with the Trade and Cooperation Agreement published on 31 December 2020 between the EU and the UK, the fight against climate change ranks among the essential horizontal elements for which a serious and substantial failure can lead to the termination or suspension of the Agreement.36 On the appreciation of what ‘serious and substantial’ might mean, the Agreement mentions that ‘for greater certainty’, an act or omission which materially defeats the object and purpose of the Paris Agreement shall always be considered a serious and substantial failure.37 On the other hand, the EU’s internal climate-related actions – such as legislative restrictions on the use of palm oil as biofuel Agreement to fulfil the part that goes beyond what is fulfilled through the climate cooperation with the European Union. Consent of the Parliament will be required. See https://​www4​.unfccc​.int/​sites/​ndcstaging/​PublishedDocuments/​Norway​%20First/​Norway​_updated NDC_2020%20(Updated%20submission).pdf (accessed 2 August 2020). 33 Article 6 of the Paris Agreement provides some flexibilities for achieving national commitments by means of cooperation with other parties, see for instance its first paragraph: ‘Parties recognize that some Parties choose to pursue voluntary cooperation in the implementation of their nationally determined contributions to allow for higher ambition in their mitigation and adaptation actions and to promote sustainable development and environmental integrity.’ The parties to the Paris Agreement have authority (and shall) adopt rules and other provisions for such cooperation, see Art. 6(7) with Art. 6(4) Paris Agreement. Negotiations on that Article were at the core of recent COP24 (Katowice) and COP25 (Madrid) but could not reach an agreement. Article 6 is on the agenda of COP26, delayed to 2021 due to the COVID-19 crisis. 34 See its first NDC submitted on 12 December 2020: https://​www4​.unfccc​.int/​sites/​ndcstaging/​ PublishedDocuments/​ U nited​ % 20Kingdom​ % 20of​ % 20Great​ % 20Britain​ % 20and​ % 20Northern​ %20Ireland​%20First/​UK​%20Nationally​%20Determined​%20Contribution​.pdf. 35 Article 4(2) Paris Agreement. 36 In which case a procedure will be activated, including the established Partnership Council. In the context of trade and investment agreements, see Pierre-Marie Dupuy and Jorge E. Vinuales, Harnessing Foreign Investment to Promote Environmental Protection, Incentives and Safeguards (Cambridge University Press 2013). On Brexit and climate change action, see House of Lords (UK), Brexit: environment and climate change, 14 February 2017, 12th Report of Session 2016–17; C. Reid, ‘Brexit and the Future of UK Environmental Law’ (2016) 34(4) Journal of Energy & Natural Resource Law 407–415. 37 Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, OJ L 444, 31.12.2020, pp. 14–1462, Art.INST.35.4 (p. 421). Of course, the often vague provisions of the Paris Agreement can be an issue here.

66  Research handbook on climate change mitigation law because they can impact in third countries, including developing countries such as Indonesia – can be confronted by the need for justification. More specifically, Indonesia has filed – on this matter – a complaint against the EU to the WTO.38 Such cases illustrate that the ‘global leadership’ role that the EU often claims should not be exclusively assessed on the basis of activities under the umbrella of the Paris Agreement but also in other contexts, such as particularly in the field of trade and investment.39 Indeed, the Committee of the International Law Association, in its Declaration of Legal Principles Relating to Climate Change, has highlighted in Principle 10 the interrelationship of climate law with other international law, particularly international trade and investment law and international human rights law.40 In this vein, the principle points to the need for integration by states of climate considerations into their law, policies and actions at all relevant levels. Such a duty – albeit broadly formulated – can already be found in Article 11 TFEU, stating that ‘Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.’ The origin of integrating the environmental concern (and thus climate change) in all other policies originates from the Single European Act (applicable from 1 July 1987),41 but its actual implementation is a challenge to be further examined.42 1.2

Climate Neutrality in 2050 on EU Territory: Political Support

Across the EU institutions, political will exists for becoming carbon neutral by 2050.43 This long-term aim, directly influenced by the need to implement the Paris Agreement and its See the WTO dispute number DS593, European Union – Certain measures concerning palm oil and oil palm crop-based biofuels, with information available at https://​www​.wto​.org/​english/​tratop​_e/​ dispu​_e/​cases​_e/​ds593​_e​.htm. Argentina, Colombia, Costa Rica, Guatemala, Malaysia and Thailand have joined the consultations requested by Indonesia. 39 The Energy Charter Treaty needs for instance to be made Paris-compatible. See in this respect also Art. 3(5) UNFCCC, prohibiting arbitrary or unjustifiable discrimination or a disguised restriction on international trade when taking climate measures. See for (reducing) the external footprint of the EU the work by Joanne Scott, ‘Reducing the EU’s Global Environmental Footprint’ (2020) 21 German Law Journal 10–16. 40 International Law Association, Resolution 2/2014, Declaration of Legal Principles Relating to Climate Change, adopted during the 76th Conference, 7–11 April 2014 (discussed by Marjan Peeters, ‘Environmental Principles in International Climate Change Law’ in Ludwig Krämer and Emanuela Orlando, Principles of Environmental Law (Edward Elgar Publishing 2018) 509–524. 41 ‘Environmental protection requirements shall be a component of the Community’s other policies’ (Art. 130 r(2) SEA). 42 This needs to be done in the light of Article 37 of the EU Charter of Fundamental Rights: see also the reinforcement of Article 11 TFEU by means of the ‘Do no harm principle’ presented in the Green Deal communication: ‘All EU actions and policies should pull together to help the EU achieve a successful and just transition towards a sustainable future’ – although there is no explicit connection made between on the one hand ‘Do no harm’ and external action in that communication: European Commission, ‘Communication from the Commission to the European Parliament, the European Council, the Council (etc.)’, Brussels, 11.12.2019, COM(2019) 640 final, p. 19. However, the Commission explicitly discusses trade policies as a specific tool in the course of acting as a global leader (pp. 20–21). Concrete actions in this respect need further examination. 43 See for instance the European Council Conclusions, 12 December 2019, https://​www​.consilium​ .europa​.eu/​en/​press/​press​-releases/​2019/​12/​12/​european​-council​-conclusions​-12​-december​-2019/​ (accessed 2 August 2020) stating: 38

The EU and its rule-creating force for climate neutrality by 2050  67 Article 4, will most likely be anchored in EU secondary law: the legislative process for this started with a proposal from the European Commission in March 2020 for a framework for achieving climate neutrality (henceforth called the proposed European Climate Law).44 The title of this proposed law, and the way it is presented, is inspired by a trend, at national level, to adopt a so-called ‘Climate Act’, inspired by, and often including similar features to, the original UK model of 2008 (with a long-term goal, mid-term goals, an independent committee, carbon budgets, etc.).45 Such an approach echoes a global trend to govern by goals46 but also a need to depart from former soft governance instruments, in order to build more legal certainty for investors (although it remains to be seen to what extent the objectives and goals laid down in climate laws are enforceable in court).47 The way in which the European Commission presented its proposal is remarkable: its website stated that the Commission proposed ‘the first European Climate Law’.48 However, and clearly, it would not be the first legislative action on climate at EU level: the EU had already adopted important laws on climate-related matters, including after the entry into force of the Paris Agreement, such as the Regulation on the Governance of the Energy Union and Climate Action (henceforth the Governance Regulation).49 In the light of the latest available science and of the need to step up global climate action, the European Council endorses the objective of achieving a climate-neutral EU by 2050, in line with the objectives of the Paris Agreement. One Member State, at this stage, cannot commit to implement this objective as far as it is concerned, and the European Council will come back to this in June 2020. 44 European Commission, Proposal for a regulation of the European Parliament and of the Council establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (European Climate Law) Brussels, 4.3.2020 COM(2020) 80 final 2020/0036 (COD). In the course of the legislative procedure, the Commission proposed an amendment to this law with a view to codifying a target for 2030, see Amended proposal for a Regulation of the European Parliament and of the Council on establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (European Climate Law), Brussels, 17.9.2020 COM(2020) 563 final. We refer to this proposed law as the EU Climate Law in this chapter. The wording used by the Commission is confusing: the title says it is an ‘Amended proposal’, but, textually, the document proposes amendments to the proposed EU Climate Law. 45 A. Averchenkova, S. Fankhauser and M. Nachmany, Trends in Climate Change Legislation (Edward Elgar Publishing 2017); H. Townsend, ‘The Climate Change Act 2008: Something to Be Proud of after All?’ (2009) 7(8) Journal of Planning and Environmental Law 842; P. McMaster, ‘Climate Change – Statutory Duty or Pious Hope?’ (2009) 20(1) Journal of Environmental Law 842; R. Macrory, ‘Towards a Brave New Legal World?’ in I. Backer, O. Fauchald and C. Voigt (eds), Pro Natura (Universitetsforlaget 2012) 306–322; M. Stallworthy, ‘Legislating against Climate Change: A UK Perspective on a Sisyphean Challenge’ (2009) 72(3) Modern Law Review 412; E. Scotford and S. Minas, ‘Probing the Hidden Depths of Climate Law: Analysing National Climate Change Legislation’ (2019) 28 RECIEL 67–81. 46 See http://​leycambioclimatico​.cl/​governing​-by​-the​-goals​-do​-we​-need​-domestic​-climate​-laws/​. 47 D. Torney and R. O’Gorman, ‘Adaptability versus Certainty in a Carbon Emissions Reduction Regime: An Assessment of the EU’s Climate and Energy Policy Framework’ (2020) 29 RECIEL 167–176. 48 In full: ‘The Commission’s proposal for the first European Climate Law aims to write into law the goal set out in the European Green Deal – for Europe’s economy and society to become climate-neutral by 2050’; https://​ec​.europa​.eu/​clima/​policies/​eu​-climate​-action/​law​_en (accessed 2 August 2020). 49 Regulation 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action amending Regulations (EC) No. 663/2009 and (EC) No. 715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC,

68  Research handbook on climate change mitigation law Actually, one of the important challenges for the EU legislator in steering towards the 2050 climate neutrality objective would be to amend existing laws, imposing concrete obligations on Member States and emitters, in order to implement an increased ambition and eventually climate neutrality by 2050 in such obligations. Indeed, while climate change was one of the specific much-debated items in the run-up to the European Parliament elections in 2019, the EU had already secured the entry into force of an impressive, though extremely complex, legal framework50 aiming to achieve the 2030 greenhouse gas emissions reduction target of at least 40% compared to 1990.51 Table 4.1 gives an account of the most important legislation enacted to aim to reach this 40% reduction. The long-term ambition of the European Commission vested in its proposal for the EU Climate Law seems to have a great chance of getting codified. During the elections of the European Parliament, held between 23 and 26 May 2019 together with the subsequent nomination of the president of the new European Commission serving from 2019 to 2024, political willingness was already being expressed to move to more ambitious emission reduction goals.52 In a new Regulation from 2018, hence adopted after the entry into force of the Paris Agreement but before the EU elections in 2019, being the Regulation on the Governance of the Energy Union and Climate Action,53 the Commission was invited to develop an analysis regarding the contribution by the Union to the commitments of the Paris Agreement, ‘includ-

2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No. 525/2013 of the European Parliament and of the Council [2018] OJ L328/1 (Governance Regulation). See for a discussion: Estelle Brosset and Sandrine Maljean-Dubois, ‘The Paris Agreement, EU Climate Law and the Energy Union’ in Marjan Peeters and Mariolina Eliantonio, Research Handbook on EU Environmental Law (Edward Elgar Publishing 2020) Chapter 26. 50 Regulation (EU) 2018/1999 on the Governance of the Energy Union and Climate Action [2018] OJ L328/1 (Governance Regulation); Directive (EU) 2018/410 amending Directive 2003/87/EC on the EU emissions trading system [2018] OJ L76/3 (ETS Amending Directive); Regulation (EU) 2018/842 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement [2018] OJ L156/26 (Effort Sharing Regulation); Regulation (EU) 2018/841 on the inclusion of greenhouse gas emissions and removals from land use, land-use change and forestry in the 2030 climate and energy framework [2018] OJ L156/1 (LULUCF Regulation); Parliament and Council Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources (recast) [2018] OJ L328/82 (Renewable Energy Directive); and Directive (EU) 2018/2002 of the European Parliament and of the Council of 11 December 2018 amending Directive 2012/27/EU on energy efficiency [2018] OJ L328/210 (Energy Efficiency Directive). See Torney and O’Gorman (n. 47) for a description of each of these items; for the complexity of understanding the (new) EU climate law, see Peeters (n. 10). 51 The decrease of emissions could be even higher than the legal target: EEA Report 13/2020, Tracking progress towards Europe’s climate and energy targets; SWD(2020) 176 final, Impact assessment, Stepping up Europe’s 2030 climate ambition, 17 September 2020. 52 These elections have resulted in an increase of seats for Green politicians (cooperating in the European political party – in which national political parties cooperate – called ‘Greens/EFA’; EFA stands for European Free Alliance). However, the support for Green politicians is quite unevenly distributed across EU Member States; for more information, see for instance, https://​www​.election​-results​ .eu/​european​-results/​2019​-2024/​(accessed 2 August 2020), where the distribution of votes in individual Member States can also be viewed: in Germany the Greens saw an increase in seats, but they did not win any seats at all in Bulgaria, Cyprus, Slovenia and Poland. 53 See above: the proposed EU Climate Law includes provisions to amend this Regulation.

Legislative act (secondary law)

Environment – 192 TFEU

– 192 TFEU

Article 2(11) of the Regulation), including the Union-wide binding target of at least 40% domestic reduction in economy-wide

includes a monitoring mechanism. Reviews tasks for the European Commission

Direct EU/EEA aviation

By 2025 and 2020, each Member State shall ensure that emissions do not exceed removals

For land use and forestry: emissions shall be equal to absorption (but flexibilities are provided)

Regulation 2018/841 on emissions Direct

and removals from land use, land

use change and forestry

for new heavy-duty vehicles)

heavy-duty vehicles

CO2 emission performance requirements for new 15% (2015), 30% (2030), with flexibilities

Regulation 2019/1242 (CO2 Direct

flexibilities

commercial vehicles

for new passenger cars)

emission performance standards

Various EU fleet-wide targets, with

levels by 2030 in the non-ETS sectors

for new passenger cars and for new light

of an EU-wide 30% reduction below 2005

States based on a trajectory until 2030

Shares of the Union-wide target by means

(and flexibilities for compliance) for Member

Individual binding emission reduction targets

emission performance standards

Direct

Direct

a linear factor of 2.2%

CO2 emissions performance requirements

Regulation 2019/631 (CO2

2018/842

Effort Sharing Regulation

A Union-wide limit on the quantity of

1990 to be achieved by 2030

emissions applicable to large industries and intra allowances, with an annual decrease by

Small industries, Housing, road transport, etc., so-called ‘non ETS sectors’

(revision by Directive 2018/410)

Emission Trading Scheme

Large industry and intra EU/EEA aviation A cap & trade mechanism for greenhouse gas

for energy and climate (see Article 1 with

of integrated energy and climate plans and

and Climate Action

greenhouse gas emissions as compared to

Codification of the Union’s 2030 targets

Regulation 2018/1999 on the Paris Agreement. Imposes on MS the adoption

Reduction target

A governance mechanism, consistent with the

Main content

Governance of the Energy Union

Indirect

Impact on mitigation

Most relevant existing EU climate legislation for reducing greenhouse gas emissions

Energy – 194 TFEU & Environment Governance, monitoring

Legislative basis

Table 4.1

The EU and its rule-creating force for climate neutrality by 2050  69

headline target on energy efficiency of at

consumption of energy in 2030

Notes: Selected main legislative acts from the European Parliament and the Council, as adopted since the entry into force of the Paris Agreement (November 2016) and before March 2020 (date of the proposal for the European Climate Law), with the purpose of mitigating greenhouse gas emissions in view of reaching the at least 40% emission reduction target by 2030. The majority of these measures, if not all, will need to be amended in view of the increased ambition of the European Union for 2030. Please note that this schedule is not comprehensive, since other instruments are relevant as well, such as the carbon capture and storage Directive (Directive 2009/31/EC). The measures are arranged according to their legislative basis.

from renewable sources

promotion of the use of energy

sources in the Union’s gross final

of 11 December 2018 on the

the overall share of energy from renewable

energy from renewable sources

Parliament and of the Council

2018/2001 of the European

Imposes a Union-wide target of 32% for

A common framework for the promotion of

least 32.5%

final energy. Imposes a Union-wide 2030

on energy efficiency

Renewables Directive (EU)

energy or no more than 1086 Mtoe of

amending Directive 2012/27/EU

Indirect

to be no more than 1483 Mtoe of primary

energy efficiency within the Union

Reduction target The Union’s 2020 energy consumption has

Main content A common framework of measures to promote

Impact on mitigation Indirect

Council of 11 December 2018

European Parliament and of the

Legislative act (secondary law)

Directive (EU) 2018/2002 of the

Legislative basis

Energy – 194 TFEU

70  Research handbook on climate change mitigation law

The EU and its rule-creating force for climate neutrality by 2050  71 ing various scenarios, inter alia a scenario on achieving net zero GHG emissions within the Union by 2050 and negative emissions thereafter and their implications on the global and Union carbon budget’.54 At the same time, the EU legislator points towards the global dimension by stating: Although the Union pledged to deliver ambitious cuts in GHG emissions by 2030, the threat of climate change is a global issue. The Union and its Member States should therefore work with their international partners in order to ensure a high level of ambition by all Parties in line with the long-term goals of the Paris Agreement.55 (Emphasis added)

Whether this statement indicates that the EU may decide not to follow the highest ambitious path if other major emitters do not take sufficient responsibility is an important discussion for the near future,56 as is also the case in relation to global stocktakes as regulated by Article 14 of the Paris Agreement. Of course, such discussions will need to take place in the various institutions, including the Council and the European Parliament.57 The European Commission at least holds the following: ‘While the EU cannot solve climate change without others also acting, being responsible for less than 10% of global greenhouse gas emissions, it is a leader in the global transition towards a net-zero-greenhouse gas emissions economy.’58 While one can doubt whether the other players internationally see the EU as their leader,59 the EU can indeed claim to be one of the leading parties in view of having codified quite ambitious climate laws internally, and because it is trying to step up its ambition. At the same time, the Commission

Regulation 2018/1999, Governance Energy Union and Climate Action, preamble 10. Regulation 2018/1999, Governance Energy Union and Climate Action, preamble 11. 56 Delphine Misonne, ‘The Importance of Setting a Target: The EU Ambition of a High Level of Protection’ (2015) 4(1) Transnational Environmental Law 11–36. The requirement to achieve a high level of protection does not impose the highest possible ambition when the legal base of the measure is Article 192 TFEU, as Member States keep the possibility of strengthening the level of protection to themselves. Adopting more stringent measures than the international obligations has been recognised, by the ECJ, as an indicator of a high level of protection (ibid., p. 17). 57 The European Parliament has already made ambitious observations with regard to the objective of climate neutrality in its resolution of 14 March 2019: European Parliament resolution of 14 March 2019 on climate change – a European strategic long-term vision for a prosperous, modern, competitive and climate-neutral economy in accordance with the Paris Agreement: https://​www​.europarl​.europa​.eu/​ doceo/​document/​TA​-8​-2019​-0217​_EN​.html, stating: Welcomes the inclusion of two pathways aimed at reaching net-zero GHG emissions by 2050 and the Commission’s support for these, and considers the mid-century objective as the only one compatible with the Union’s commitments under the Paris Agreement; regrets the fact that no net-zero GHG pathways for before 2050 were considered in the strategy. Interestingly, such statements reveal a more ambitious stance than the Paris Agreement, of which Article 4(1) refers to achieving ‘a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century’. Importantly, this Article 4(1) is about a global balance, while the EU could (or should) interpret its obligations under the Paris Agreement as leading to more ambitious actions and hence achieving climate neutrality on its territory earlier. To arrive at such a decision, a due consideration of the principle of proportionality would probably be necessary, although legal research on that matter has yet to develop (as far as is known to us). 58 European Commission, Proposal for a regulation of the European Parliament and of the Council establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (European Climate Law) Brussels, 4.3.2020 COM(2020) 80 final 2020/0036 (COD), p. 3. 59 See in this respect also the critical observations by Brosset and Maljean-Dubois (n. 49). 54 55

72  Research handbook on climate change mitigation law also points to the level playing field it wants to uphold at the international level.60 Further guidance on that matter from the European Council will be key, although it is the EU legislator who can take measures such as imposing an eventual carbon border tax.61 1.3

The Proposed Legal Framework for Climate Neutrality in 2050 and the New(?) Principle of Do No Harm

The proposed Regulation introduces a ‘climate neutrality objective’, which means that Union-wide emissions and removals of greenhouse gases regulated in Union law shall be balanced at the latest by 2050, thus reducing emissions to net zero by that date.62 This codification of climate neutrality in EU law provides the keystone, establishing the ultimate aim of EU climate law. While the European Union has already been applying a rule-based approach to addressing climate change for some time, as can be illustrated by the introduction of the EU Emissions Trading Directive in 2003 (even before the entry into force of the Kyoto Protocol), the codification of the long-term goal reaffirms this tradition. The question is, however, how the path towards achieving climate neutrality will be governed, and how to deal with unforeseen positive and negative circumstances, including the developments of science, technological innovation, and the economy in a few decades from now – with health crises being among other potential yet unknown emergencies.63 This is one of the main issues in adopting such a long-term aim through legislative or even constitutional instruments: if their very ratio legis is to create long-term security, to what extent will this then be respected by the authorities at EU and national level, and, if this falls short, to what extent is the path towards the long-term aim enforceable through the courts? In light of taking steps to achieve the ultimate aim, in the course of the legislative procedure for the EU Climate Law, a strengthening of the 2030 target has already been undertaken, which also updates the EU’s nationally determined contribution.64 The European Council, again providing political guidance (and not having legislative power), has endorsed in its meeting of 10–11 December 2020 ‘a binding EU target of a net domestic reduction of at least 55% in greenhouse gas emissions by 2030 compared to 1990’.65 In order to have a mechanism to (try to) ensure the achievement of the long-term aim, the Climate Law proposal has a provision regarding a trajectory which requires the Commission

60 ‘The EU will keep promoting and implementing ambitious climate policy across the world, including in the context of a strong climate diplomacy, and engaging intensely with all partners to increase the collective effort while at the same time ensuring a level playing field.’ See the proposal from the Commission for the European Climate Law, p. 3. 61 According to the indicative timetable from the European Commission related to the Green Deal, a proposal for a carbon border adjustment mechanism for selected sectors is scheduled for 2021. See the Annex to the Communication on the European Green Deal, available at https://​eur​-lex​.europa​.eu/​ resource​.html​?uri​=​cellar:​b828d165​-1c22​-11ea​-8c1f​-01aa75ed71a1​.0002​.02/​DOC​_2​&​format​=​PDF. 62 Commission proposal, Art. 2. 63 Obviously, this question is also relevant for national laws codifying long-term goals, such as the Climate Change Act, adopted in 2008 in the United Kingdom. 64 See above section 2.1. 65 https://​www​.consilium​.europa​.eu/​media/​47296/​1011​-12​-20​-euco​-conclusions​-en​.pdf under para. 12.

The EU and its rule-creating force for climate neutrality by 2050  73 to assess periodically progress towards the 2050 objective.66 It is indeed exactly the path towards reaching the aim that will be decisive for success. This path consists of multiple elements, which also have to be regulated in legislation other than in the EU Climate Law, such as the gradually decreasing cap of the EU ETS. One of the options for establishing a more ambitious EU climate law policy is to let the cap decline much faster, which of course has to be regulated by law. Such steps are, however, not the subject of the proposed EU Climate Law, but require additional legislative action at EU level. Central to the current situation is that in the EU, emission reduction objectives are endorsed or even codified before the specific legislative amendments, stipulating the precise obligations relevant for emitters, are clear.67 With regard to the trajectory, the Commission proposes to be empowered to adopt so-called delegated acts for an indeterminate period of time (Art. 3). This eventual delegation of powers raises concerns in view of the limits formulated by EU treaty law, which in essence preserves that essential decisions have to be taken by the ordinary EU legislator.68 Article 290 TFEU subjects the delegation to strict conditions, in order to preserve democratic accountability in EU rulemaking.69

66 The notion of trajectory is not defined in the Commission proposal of March 2020. However, it mentions that ‘the trajectory shall start from the Union’s 2030 target for climate referred to in Article 2(3)’, a conditional item as it only establishes that ‘by September 2020, the Commission shall review the Union’s 2030 target for climate referred to in Article 2(11) of Regulation (EU) 2018/1999 in light of the climate-neutrality objective set out in Article 2(1) and explore options for a new 2030 target of 50 to 55% emission reductions compared to 1990.’ The deadline has not been met, but it is worth mentioning that Article 2(11) of Regulation 2018/1999 encompasses a moving target anyway: ‘“the Union’s 2030 targets for energy and climate” means the Union-wide binding target of … or any subsequent targets in this regard agreed by the European Council or by the European Parliament and by the Council for 2030’. 67 Illustrative are the European Council conclusions of 10–11 December 2020 (n. 31) endorsing a more ambitious target of 55% in 2030, but the Council at the same time invites the Commission to assess how all economic sectors can best contribute to the 2030 target and to make the necessary proposals, accompanied by an in depth examination of the environmental, economic and social impact at Member State level, taking into account national energy and climate plans and reviewing existing flexibilities. At the time of writing this chapter, the Commission has planned to publish specific legislative proposals in June 2021, and it is not clear when the decision-making on the EU Climate Law proposal, including the 2030 target, will be finished. 68 This concerns Article 290 TFEU; see Merijn Chamon and Marjan Peeters, https://​www​.​maastricht​ university​.nl/​blog/​2020/​03/​european​-climate​-law​-too​-much​-power​-commission, 30 March 2020. 69 As recalled by AG Jääskinen in Case C‑270/12, United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union [2013], §76. The Court held as follows in Case C‑355/10 Parliament v Council [2012] ECR at paragraphs 64–66: According to settled case-law, the adoption of rules essential to the subject-matter envisaged is reserved to the legislature of the European Union … The essential rules governing the matter in question must be laid down in the basic legislation and may not be delegated … Thus, provisions which, in order to be adopted, require political choices falling within the responsibilities of the European Union legislature cannot be delegated … It follows from this that implementing measures cannot amend essential elements of basic legislation or supplement it by new essential elements. See generally on Article 290, C. Blumann, ‘À la frontière de la fonction législative et de la fonction exécutive: les « nouveaux » actes délégués’, Mélanges en l’honneur de Jean Paul Jacqué (Dalloz 2010) 127–144; C. Garzόn, ‘Les actes délégués dans le système des sources du droit de l’Union Européenne’ (2011) 12 ERA Forum 105–134.

74  Research handbook on climate change mitigation law In the present case, the delegation to the Commission is not restricted in time and concerns ‘the trajectory’, a notion which is not clearly defined.70 Looking at competences, there might be an even bigger problem: as Ludwig Krämer observes, ‘it is doubtful, whether Article 192(1) TFEU is the appropriate legal basis’.71 He grounds this observation on the significant impact the EU Climate Law would have on the energy structure of the Member States. Another important element of the Commission proposal is establishing a ‘framework for achieving progress in pursuit of the global adaptation goal established in Article 7 of the Paris Agreement’.72 Hence, both mitigation and adaptation are addressed in this proposed law, which, as such, need very different policy responses.73 However, it also needs consideration to what extent adaptation measures can be based on the environmental competence, including Article 192(1) TFEU: it depends on how widely adaptation needs to be interpreted, and whether it also covers town and country planning.74 The short discussion above illustrates that the proposed EU Climate Law contains without doubt new, yet unexplored elements to EU climate legislation, such as the trajectory with powers for the Commission. Actually, the notion of ‘law’ (mentioned in the title of the EU Climate Law) as an instrument for EU action does not exist under European Union primary law.75 The proposal aims to establish a Regulation, a legislative act that shall be binding in its entirety and directly applicable in all Member States and to EU institutions, including the European Environment Agency.76 The reason for the Regulation emanates from the need to strengthen the EU’s climate ambition.77 However, another possible reason, not formally expressed, is the need to emphasise the power of the EU lawmaker (the Council and the Parliament), where that legislative power has actually been partly captured, in practice, by the European Council, beyond its role to give a main political impetus to European institutions (and where Member States also retain a veto right, with decisions being obtained by consen-

Chamon and Peeters (n. 68). Ludwig Krämer, ‘Planning for Climate and the Environment: The EU Green Deal’ (2020) 17 Journal for European Environmental & Planning Law 267–306, at 270. 72 Commission proposal, Art.1. 73 We will not delve further into the adaptation element, although we want to flag that in light of the principle of subsidiarity, adaptation at EU level is more debatable than mitigation action. 74 See Article 192(2) TFEU with unanimity requirements in the Council. See also Cathrine Ramstad Wenger, ‘Article 7 Adaptation’, in Geert van Calster and Leonie Reins (eds), The Paris Agreement on Climate Change: A Commentary (Edward Elgar Publishing 2021) 172–199. 75 Article 288 TFEU mentions particularly regulations, directives and decisions. The term ‘law’ was perhaps put in the title based on communication needs. 76 Article 288 TFEU – see also the proposal at p. 5. Remarkably, the Commission does not elaborate on the bindingness of the climate neutrality objective for the Union itself, but only refers to requirements for the Commission and the EEA. However, Article 2 states that ‘The relevant Union institutions and the Member States shall take the necessary measures at Union and national level respectively, to enable the collective achievement of the climate-neutrality objective’. Of course, the enforceability of such obligations will be an interesting issue, but hopefully legal action to enforce compliance will not be needed. Unfortunately, the Commission does not explain the (legal) consequences if the EU objectives (targets) are not reached. 77 The existing level of policy ambition for 2030 is not sufficient to allow for a gradual transition to a climate-neutral EU economy by 2050 (p. 8) and the analysis of various policy developments shows that the current policies are insufficient for the EU to reach the 2050 climate-neutrality objective (p. 15). 70 71

The EU and its rule-creating force for climate neutrality by 2050  75 sus).78 Finally, the European Commission wants an instrument capable of pulling together ‘all EU actions and policies’, to help the EU to achieve a successful and just transition towards climate neutrality and a sustainable future, as stated in the European Green Deal.79 This Green Deal had put forward a new policy principle, called a green oath, to ‘do no harm’.80 This new expression, also included in the proposal for the Eighth Environment Action Programme, relates to the aim to ‘increase coherence and synergies between actions across all levels of governance by measuring progress towards environmental and climate objectives in an integrated way’.81 In essence, ‘all EU initiatives’82 would have to be aligned to this oath not to harm. The glossy expression necessarily calls up a positive mindset. While the expression ‘do no harm’ is – in our view – self-evident, it also sounds familiar in light of the customary no-harm principle, the cornerstone of international environmental law. The purpose of the expression ‘do no harm’ (to avoid inconsistencies among EU policies and goals in light of the environmental objectives) implies that the European Commission has a truly different understanding of this concept compared to the well-known customary law principle that addresses behaviour between states. The main provision in this regard put forward by the EU Climate Law proposal is that the Commission ‘shall assess any draft measure or legislative proposal in light of the climate-neutrality objective’ and the related trajectory.83 This strengthening, particularly its specification towards the climate change problem, of Article 11 TFEU is obviously a formidable challenge, and it will be interesting to see whether the strong emphasis on aligning all action in view of achieving the climate objective, including by using the appealing (but legally unclear) term ‘oath’, will have some relevance in court.84 Nonetheless, there are already signs of watering down the concept, since in the political agreement on the expenditure on the Recovery and Resilience Facility, the principle is suddenly called ‘do no significant harm’ – and is as such welcomed by the Commission …85

78 See the earlier reflection on the European Council urging consensus by the EU legislature: Marjan Peeters, ‘An EU Law Perspective on the Paris Agreement: Will the EU Consider Strengthening its Mitigation Effort?’ (2016) 6 Climate Law 182–195, at 191–192. 79 Commission proposal, EU Climate Law, p. 4. 80 European Commission, Communication from the Commission to the European Parliament, the European Council, the Council (etc.), Brussels, 11.12.2019, COM(2019) 640 final, p. 19. 81 Commission in its proposal for the eight General Union Environment Action Programme, COM/2020/652 final from 14 October 2020, p. 3. 82 Ibid., p. 4: ‘The Commission announced it will improve the way its better regulation guidelines and supporting tools address sustainability and innovation issues, with the objective that all EU initiatives live up to a green oath to “do no harm”.’ 83 Article 5(4) Commission proposal EU Climate Law. 84 However, for hurdles to reaching the courts, see Sebastian Bechtel, Client Earth, 17 June 2020, at https://​www​.clientearth​.org/​projects/​access​-to​-justice​-for​-a​-greener​-europe/​updates/​the​-european​ -climate​-law​-and​-access​-to​-justice/​. 85 European Commission, press release 18 December 2020: Commission welcomes political agreement on Recovery and Resilience Facility, https://​ec​.europa​.eu/​commission/​presscorner/​detail/​en/​ip​_20​ _2397 (accessed 24 December 2020). Article 17, Taxonomy Regulation (see section 2.4), as already accompanied by a Commission Technical Guidance on the application of ‘do no significant harm’ under the Recovery and Resilience Facility Regulation (COM(2021) 1054 final, 12.02.2021).

76  Research handbook on climate change mitigation law 1.4

Selected Key Issues from the European Parliament

The European Parliament adopted on 8 October 2020 many amendments to the proposed EU Climate Law, including important changes.86 This section sheds light on only a few of them. At the time of writing, the legislative process is ongoing, including the negotiations, also known as a trilogue.87 First, an important amendment departs from the collective nature of the objective of climate neutrality, when adding that ‘Each Member State shall achieve net zero greenhouse gas emissions by 2050 at the latest.’88 In our view, this is a fundamentally different view of what the European Union is or could be: with individual national climate neutrality, in its purest form, no use can be made of cost-effective options by taking the Union as a whole. For instance, it raises the question of whether this would mean individual caps under the EU ETS (and how to do so for aviation?). Secondly, the establishment of the trajectory is connected to the need for appropriate legislative proposals.89 In this respect, the European Parliament (EP) wants to keep power regarding setting out the path towards 2050.90 Regarding the Union’s 2030 target for climate, the EP wants an emissions reduction of 60% compared to 1990.91 While the EP accepts a net objective for 2050, it does not mention this explicitly in its amendment for the 2030 target.92 In connection with this more ambitious 2030 target, the European Commission shall assess, by June 2021, how ‘all of the Union legislation relevant for the fulfilment of the Union’s 2030 target for climate and other relevant Union legislation promoting the circular economy and contributing to reduce greenhouse gas emissions’ would need to be amended. As observed above, the legislative approach by the EU, at least this EP approach, is first to set (strong) targets and then to consider the implementation of them. Further reflection on whether this use of codification is the best regulatory choice to take is needed. Thirdly, the EP adopted an amendment introducing an access to justice provision within Member States.93 Earlier, a plea for better access to justice possibilities at EU and national

Amendments adopted by the European Parliament on 8 October 2020 on the proposal for a regulation of the European Parliament and of the Council establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (European Climate Law) (COM(2020)0080 www​ .europarl​ .europa​ .eu/​ doceo/​ – COM(2020)0563 – C9-0077/2020 – 2020/0036(COD)); https://​ document/​TA​-9​-2020​-0253​_EN​.html; see for the procedure: https://​oeil​.secure​.europarl​.europa​.eu/​oeil/​ popups/​ficheprocedure​.do​?reference​=​2020/​0036(COD)​&​l​=​en. 87 The trilogue entails an informal meeting of representatives of the three relevant legislative institutions (the Council, the European Parliament, and the Commission). See also Peeters (n. 78), 193. 88 European Parliament (n. 86), Amendment of Article 2 (p. 44). 89 European Parliament (n. 86), Amendment of Article 3 (p. 50). 90 The need to comply with the main goal of Union environmental policy, which is to achieve a high level of (climate) protection, is nowhere to be recalled, although the level of protection is of course specifically formulated: to achieve climate neutrality by 2050. 91 European Parliament (n. 86), Amendment of Article 2(a), p. 55. 92 European Parliament (n. 86): Article 2(a) does not mention ‘net’ so it can be read as a far more ambitious absolute target: ‘The Union’s 2030 target for climate shall be an emissions reduction of 60% compared to 1990’. We did not investigate (for instance by means of interviews) whether any further explanation is given of this. 93 European Parliament (n. 86), Amendment inserting a new Article 11(a) (p. 66). 86

The EU and its rule-creating force for climate neutrality by 2050  77 level, related to the EU climate law, was made.94 Clearly, access to justice would harden the governance approach and could help, as pointed out more generally by Verschuuren, in promoting the implementation of EU law in legal practice,95 although it is yet to be examined how wide and intense this adjudication would be in the specific case of the (often procedural type of) provisions as established by the governance approach. Nonetheless, harmonising access to justice regarding national decisions under the EU Climate Law and the Governance Regulation would establish a level playing field particularly with regard to standing. If this were to be adopted, its relevance in practice remains to be seen, particularly in view of the fundamental discussion raging in certain EU countries on the role of the judiciary.96 The highlights above regarding the amendments by the EP show how challenging the various topics to be decided upon are, ranging from setting the targets, including the decision whether to allow for a net target by 2030, and the decision whether climate neutrality should be an obligation for every Member State individually, to providing access to justice as a means to harden the governance approach by enabling litigation.

2

THE EU COMPETENCE AND EU CLIMATE LAW INSTRUMENTS

2.1

The EU’s (Limited) Competence to Address Climate Change

While the proposal for the EU Climate Law is, at the time of writing this chapter, still being discussed by the EU legislator, EU climate law already consists of a huge package of laws. Before delving into the specific EU climate law instruments, this section first discusses the EU’s internal competence regarding climate change. This internal competence emerged, in a logic of mitigating emissions, from its powers in the field of environmental protection.97 The post-Rio and post-Kyoto packages were all based on the environmental chapter of primary law.98 94 Client Earth (Sebastian Bechtel), 17 June 2020, https://​www​.clientearth​.org/​the​-european​-climate​ -law​-and​-access​-to​-justice/​. 95 J. Verschuuren, ‘The Netherlands’ in K. Kotze et al. (eds), The Role of the Judiciary in Environmental Governance (Wolters Kluwer 2009), 55–83. Verschuuren also points to the fact that access to justice helps to promote a level playing field for businesses. 96 And also leading to CJEU case law; see for instance, Marco Antonio Simonelli, ‘Thickening up judicial independence: the ECJ ruling in Commission v. Poland (C-619/18)’ https://​europeanlawblog​ .eu/​2019/​07/​08/​thickening​-up​-judicial​-independence​-the​-ecj​-ruling​-in​-commission​-v​-poland​-c​-619​18/. 97 As to the external competence, see for instance E. Morgera (ed.), The External Environmental Policy of the European Union (Cambridge University Press 2012). The negotiating powers of the European Union in the field of climate change were, since the first multilateral negotiations, based upon the environmental chapter of the Treaty, which was made clearer after Lisbon when the words ‘and in particular combating climate change’ were added to ‘promoting measures at international level to deal with regional or worldwide environmental problems’. 98 The first modest package of measures, adopted after the adoption of the UNFCCC, included a Council Directive 93/76/EEC of 13 September 1993 to limit carbon dioxide emissions by improving energy efficiency (SAVE) and a Council decision of 24 June 1993 for a monitoring mechanism of Community CO2 and other greenhouse gas emissions, which were both adopted on basis of the environmental chapter. They were accompanied by a decision to promote renewable energy, the launch of

78  Research handbook on climate change mitigation law However, it is through the new competence on energy, as established by the Lisbon Treaty, that various legislative acts were justified in very recent years. For example, the Governance Regulation is based on both environmental competence (Article 192 TFEU) and on energy competence (Article 194 TFEU).99 Hence, climate policies have largely become energy policies, while also often remaining environmental ones. However, some regulatory approaches were recently moved from one legal base to the other, once the Lisbon Treaty had established the chapter on energy.100 Even while the need to pursue a high level of environmental protection applies to all Union policy given the integration principle,101 one must observe that EU competence in the field of energy is narrower than its competence in the field of the environment. The energy competence is conditional on ‘the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment’ (Art. 194, §1 TFEU), whereas the environmental base is autonomous, not in any way conditional on the establishment and functioning of the internal market (Article 191 TFEU), and, moreover, shall aim at a high level of protection.102 The EU gained more power on environmental issues than on energy ones, where the conferral of power is restricted, a paradoxical situation when one knows that the European Economic Community was rooted in a need to mutualise the control of an essential energy source such as coal, leading to the founding of the European Coal and Steel Community in 1951. The energy chapter mentions that Union policy on energy ‘shall not affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply’, except if this occurs on the basis of the environmental chapter, and therefore for environmental reasons, taking due account of Article 192(2)(c). This Article enables the Union to adopt environmental legislation significantly affecting a Member State’s choice between different energy sources and

a programme called Altener. The post-Kyoto package, including Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity from renewable energy sources in the internal electricity market, Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings and the launch of a carbon market with Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, and even Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport, were also based on the environmental chapter. 99 Article 194 TFEU: In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to: (a) ensure the functioning of the energy market; (b) ensure security of energy supply in the Union; (c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and (d) promote the interconnection of energy networks. See also Karen Makuch and Ricardo Pereira, Environmental and Energy Law (Wiley Blackwell 2012); John Birger Skjaerseth et al., Linking EU Climate and Energy Policies (Edward Elgar Publishing 2016). 100 P. Thieffry, Traité de droit de l’environnement et du Climat (Bruylant 2020) 1605, explaining the transformation of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings into Directive 2010/31 of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings. 101 See Art. 11 TFEU and Art. 37 Charter. 102 Article 191(2) TFEU.

The EU and its rule-creating force for climate neutrality by 2050  79 the general structure of its energy supply, on the condition that it is decided by the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions.103 Hence, it is possible to impact significantly a Member State’s choice between different energy sources, on the condition that the goal being pursued ranks among the main objectives of the EU on the environment (and mitigation of greenhouse gases is one of them) but also that all 27 Member States fully agree. This constitutes a block to achieving by means of law – at the EU level – a true industrial revolution in the energy sector: the Member States detain a veto right.104 By contrast to EU environmental policies, EU energy policies still largely remain under the control of individual states – and this can be illustrated by the following statement from the European Council from December 2020: ‘to respect the right of the Member States to decide on their energy mix and to choose the most appropriate technologies to achieve collectively the 2030 climate target, including transitional technologies such as gas’.105 This situation explains some European legislation that is actually only slightly prescriptive on content but heavily demanding on administrative processes. The Governance Regulation is symptomatic in that regard. Mimicking the managerial approach established by the Paris Agreement, in which parties are asked to plan in order to meet, on time, a collective objective, the Regulation imposes a heavy planning process on all Member States.106 EU action on climate has always been imagined within the system of competences for secondary law but more attention to improving primary law could be a means to better acknowledge the severity of the issue. From its very start, the European Economic Community was created in close relation to energy concerns. Its roots are to be found in the European Coal and Steel Community of 1951. The 1957 Treaties included the Euratom Treaty, the aim of which was no less than to facilitate investment in nuclear energy and to create the conditions necessary for the speedy establishment and growth of nuclear industries. On renewables, to implement the 1992 United Nations Framework Convention on Climate Change (UNFCCC), the European Community first tabled a very modest Council Decision to promote renewable energy107 and, even though the idea of a Treaty for the promotion of renewable energy sources

The topics for which unanimity in the Council is required, as specified in Article 192(2) TFEU, are interpreted narrowly by the CJEU; see the analysis by Helle Tegner Anker, ‘Competences for EU Environmental Legislation: About Blurry Boundaries and Ample Opportunities’ in Marjan Peeters and Mariolina Eliantonio, Research Handbook on EU Environmental Law (Edward Elgar Publishing 2020) 7–21, at 14. 104 See for an earlier discussion of this issue – including case law – Helle Tegner Anker (n. 103), and earlier: Marjan Peeters, ‘Governing towards Renewable Energy in the EU: Competences, Instruments and Procedures’ (2014) 21(1) Maastricht Journal of European and Comparative Law 39–63. 105 European Council, Conclusions 10–11 December 2020, https://​www​.consilium​.europa​.eu/​media/​ 47296/​1011​-12​-20​-euco​-conclusions​-en​.pdf. 106 The proposed EU Climate Law, discussed in section 2, also imposes new collective goals, without being prescriptive on content, on Member States. 107 Decision 93/500 concerning the promotion of renewable energy sources in the Community (1993) OL L235. See C. Streck and D. Freestone, ‘The EU and Climate Change’, in R. Macrory (ed.), Reflections on 30 Years of EU Environmental Law (Europa Law Publishing 2006), 100. 103

80  Research handbook on climate change mitigation law was once suggested in a resolution of the European Parliament in the late 1990s,108 it never moved in that direction. In the CJEU judgment on the Hinkley Point case set down on 22 September 2020,109 one can observe how important it can be for a new source of energy to be promoted by a legal act having the same legal value as the Lisbon Treaty. Austria contested before the CJEU the Commission decision declaring the United Kingdom’s financial support to Hinkley Point C nuclear power station in the UK compatible with the internal market, on the ground that the construction of a new nuclear power station does not constitute an objective of common interest, under the meaning of state aid (Article 107 TFEU), drawing links between such support and the potential negative impact on the promotion of renewable energy sources.110 The Court, in Grand Chamber, confirmed that the second subparagraph of Article 194(2) TFEU provides that the measures adopted by the European Parliament and the Council are not to affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, and does not preclude that choice from being nuclear energy.111 Thus, since the choice of nuclear energy is, under those provisions of the TFEU, a matter for the Member States, ‘it is apparent that the objectives and principles of EU environmental law and the objectives pursued by the Euratom Treaty, as recalled in the judgment – the development of a powerful nuclear industry – do not conflict’,112 and cannot be regarded as precluding, in all circumstances, the grant of state aid for the construction or operation of a nuclear power plant.113 This case demonstrates that it is not inconsequential for the nuclear industry to benefit from the support of a specific treaty, the Euratom Treaty. One can wonder why the wish to promote new sources of energy, such as renewables, does not also translate into the same kind of instrument with the same legal rank. If the EU wants to think big on climate neutrality and renewables, it may need to get inspired by the process and very existence of the Euratom Treaty.114 If the EU wants to achieve an ambition such as a zero pollution and a climate-neutral society, as put forward by the von der Leyen Commission, or even a new industrial revolution, White Paper for a Community Strategy and Action Plan COM(97)599 final (26/11/97), at 9, referring to PE 221/398.fin. 109 Case C-594/18P Austria v Commission ECLI:​EU:​C:​2020:​742. Alicja Sikora, ‘Applicability of the EU State Aid and Environmental Rules in the Nuclear Energy Sector, Annotation on the Judgment of the Court of Justice (Grand Chamber) of 22 September 2020 in Case C‑594/18 P Republic of Austria v Commission (ESTAL)’ (2020) 19(4) European State Aid Law Quarterly 515–520. 110 Paras 36 and 37. 111 Para. 48. 112 Para. 33. 113 Paras 48 and 49. The Court asserts that the Euratom Treaty and the TFEU have the same legal value, as illustrated by Article 106a(3) of the Euratom Treaty (para. 32). Accordingly, the provisions of the TEU and TFEU are not to derogate from the provisions of the Euratom Treaty; the rules of the TFEU apply in the nuclear energy sector when the Euratom Treaty does not contain specific rules, such as rules of EU law on the environment: para. 41. Therefore, the Euratom Treaty does not preclude the application in that sector of the rules of EU law on the environment. See also judgment of 27 October 2009, ČEZ, C‑115/08, EU:​C:​2009:​660, paragraphs 87 to 91. Markus Möstl, ‘Case C-115/08, Land Oberösterreich v ČEZ, Judgment of the Court of Justice (Grand Chamber) of 27 October 2008’ (2010) 47(4) Common Market Law Review 1221–1232. 114 To look further into reasons for the asymmetric approaches, see among others R. Engstedt, Handbook on European Nuclear Law: Competences of the Euratom Community under the Euratom Treaty (Kluwer 2020). 108

The EU and its rule-creating force for climate neutrality by 2050  81 it must be endowed with an institutional framework that actually matches that ambition, even within its own existing primary law. This may not yet be the case. Are the European Treaties Paris-proof? An academic discussion on that aspect has not even started. Meanwhile, and realistically, any further transposition of powers from national level to EU level – for instance in the field of renewable energy – will most likely face political resistance at the national level. 2.2

Core Legal Instruments Regulating Emission Reduction

Despite restricted powers, the EU has been rather successful at putting forward legally binding emission reductions.115 Such emission reductions are mainly enforced by precise obligations put on industries and Member States, and the outcome in terms of emission reduction is, until 2020, and taken as a whole, successful in the sense that emissions have dropped by 24% in 2019, even during economic growth.116 The three core instruments are respectively the Effort Sharing approach,117 specifying individual emission reduction pathways and targets for Member States until 2030, the EU Emissions Trading Scheme,118 setting an annually decreasing EU-wide cap on emissions from covered industries and aviation, and the LULUCF, establishing that the sum of emissions and removals by land and forestry has to be zero. The regulation of gases not covered by these three instruments should not be overlooked but generally gets less attention in legal scholarship.119 One of the climate-related concerns is the production of water vapour by aviation, currently not regulated.120 Another important

One can even argue that putting forward various legislative instruments, targeting multiple aims, such as emission reductions, renewable energy, and energy efficiency, leads to – to put it mildly – a mess of instruments instead of a proper mix. See Marjan Peeters, ‘Instrument Mix or Instrument Mess? The Administrative Complexity of the EU Legislative Package for Climate Change’ in Marjan Peeters and Rosa Uylenburg, EU Environmental Legislation: Legal Perspectives on Regulatory Strategies (Edward Elgar Publishing 2014) 173–192. 116 According to the EEA: Since 1990, greenhouse gas emissions in the EU have been steadily declining, with emissions in the EU-27 falling to 24% below 1990 levels in 2019. This highlights the results of effective climate policies implemented across the EU and shows that it is clearly possible to achieve more ambitious reduction targets by 2030, paving the way for a climate neutral EU by 2050. EEA, ‘EU on track to meet greenhouse gas emissions and renewable energy 2020 targets, progress in 2019 shows more ambitious long-term objectives are reachable’, News, 30 November 2020 (on file with authors). Importantly, however, the EEA notes that ‘In 2019, preliminary estimates point towards 12 countries with emission levels greater than their annual targets: Austria, Belgium, Bulgaria, Cyprus, Czechia, Estonia, Finland, Germany, Ireland, Luxembourg, Malta and Poland’ (same source). 117 Marjan Peeters and Natassa Athanasiadou, ‘The Continued Effort Sharing Approach in EU Climate Law: Binding Targets, Challenging Enforcement?’ (2020) 29 RECIEL 201–211. 118 There is a lot of literature about the EU ETS; see for a recent discussion, Stefan Weishaar, ‘EU Emissions Trading: Its Regulatory Evolution and the Role of the Court’ in Marjan Peeters and Mariolina Eliantonio (eds), Research Handbook of EU Environmental Law (Edward Elgar Publishing 2020). 119 The Commission states ‘Non-CO2 emissions of methane, nitrous oxide and so-called F‑gases represent almost 20% of the EU’s greenhouse gas emissions. By 2030, these can be reduced effectively by up to 35% compared to 2015.’ See Commission Communication ‘Stepping up Europe’s 2030 climate ambition’ (COM(2020)562 from 17 September 2020, p. 11. If we understand the communication correctly, there is no strengthening proposed for these F‑gases until 2030. 120 But it is a complex issue with uncertainties regarding the impacts of non-CO2 gases on climate change (nonetheless, less aviation would reduce such impacts!). See on the non-CO2 emissions from aviation: Commission Staff Working Document, Full-length report Accompanying the document Report 115

82  Research handbook on climate change mitigation law element is the regulation of hydrofluorocarbons (HFCs), which are harmful greenhouse gases (climate-warming fluorinated gases) regulated at international level in the 1987 Montreal Protocol on Ozone Depleting Substances, particularly by its 2016 Kigali Amendment (in force since 1 January 2019).121 This amendment was needed to establish a framework for controlling the replacements for substances that were reduced by the Montreal Protocol, that were not depleting the ozone layer, but were contributing to climate change.122 This is one important practical example of how the control of an environmental problem can shift pollution and harm to another environmental medium – which the von der Leyen Commission wants to prevent by means of the ‘do not harm’ principle, as explained above. Consequently, HFC gases are covered by the proposed EU climate law,123 illustrating the great width of the EU climate law approach.124 Meanwhile, it is a true challenge to develop a package of rules that steers the reduction of emissions in an efficient, effective, sufficiently fast and fair way towards climate neutrality, while not knowing how science, innovation, the economy, democracy, and legal systems, including case law, will develop. For instance, while on the one hand, there were fewer emissions from aviation in the first half of 2020 due to a dramatic external development,

from the Commission to the European Parliament and the Council, Updated analysis of the non-CO2 climate impacts of aviation and potential policy measures pursuant to EU Emissions Trading System Directive Article 30(4), available at https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​?uri​=​SWD:​2020:​ 277:​FIN (accessed 27 January 2021). 121 See https://​treaties​.un​.org/​Pages/​ViewDetails​.aspx​?src​=​IND​&​mtdsg​_no​=​XXVII​-2​-f​&​chapter​=​27​ &​clang​=​_en (accessed 3 December 2020). For a scholarly discussion, see Mark W. Roberts, ‘Finishing the Job: The Montreal Protocol Moves to Phase Down Hydrofluorocarbons’ (2017) 26(3) RECIEL 220–230. 122 See for a concise explanation the information provided by UNEP: https://​ozone​.unep​.org/​treaties/​ montreal​-protocol (accessed 3 December 2020) and also: Eric A. Heath, ‘Introductory note to the amendment to the Montreal Protocol on substances that deplete the ozone layer (Kigali Amendment)’ (2017) 56 ILM 193, DOI:​10​.1017/​ilm​.2016​.2. The European Commission explains on its website that the emissions of such gases ‘almost doubled from 1990 to 2014 – in contrast to emissions of all other greenhouse gases, which were reduced. However, thanks to EU legislation on fluorinated gases, F‑gas emissions have been falling since 2015’, at https://​ec​.europa​.eu/​clima/​policies/​f​-gas​_en (accessed 3 December 2020). The EEA has reported that ‘Fluorinated greenhouse gas emissions have been decreasing in the EU since 2015, after 15 years of uninterrupted annual increases’; see EEA, ‘Use of climate-warming fluorinated gases continues to drop across EU’ (News, 1 December 2020, on file with authors). According to information provided by the then European Commission, the ‘EU’s F‑gas emissions will be cut by two-thirds by 2030 compared with 2014 levels’; https://​ec​.europa​.eu/​clima/​policies/​f​-gas/​legislation​_en (accessed 3 December 2020). 123 In addition to already existing EU secondary legislation regulating these gases, such as, in particular, Regulation (EU) No. 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No. 842/2006. The aim is to reduce such emissions by at least 55% by 2030 compared with 2014 levels, see the new NDC for the EU from 17 December 2020, para. 23. 124 See Article 1, referring to Annex V part 2 of the Energy Union and Climate Action Regulation. Not only HCFs, but also perfluorocarbons (PFCs) and sulphur hexafluoride (SF6) are covered by the EU climate law. The UNFCCC excluded gases governed by the Montreal Protocol (see for instance its Article 4), but the Paris Agreement has no such provision. See on the complex reporting of greenhouse gases, UNFCCC, Methodological issues relating to fluorinated gases, https://​unfccc​.int/​process​-and​ -meetings/​transparency​-and​-reporting/​methods​-for​-climate​-change​-transparency/​methodological​-issues​ -relating​-to​-fluorinated​-gases (accessed 3 December 2020).

The EU and its rule-creating force for climate neutrality by 2050  83 COVID-19, the increase in electronic network-related emissions, including from networks such as 4G and 5G, needs consideration and action.125 The width of EU climate law also causes problems for understanding: as has been observed before, ‘given its breadth, complexity, and dynamic nature, it is a huge challenge … to acquire a good overview, let alone develop a comprehensive and in-depth analysis’ of current climate law.126 In order to contribute to further insights, the sections below will delve into a specific dimension of the EU climate rule package, which is to steer by means of financial laws, particularly by means of the Taxonomy Regulation adopted in 2020.127 2.3

Financial Laws: An as yet Underexplored Topic

An element of EU climate law still to be further examined concerns how governmental policies entail or influence investments that have an impact on the transition to a climate-neutral society. Lawyers perhaps intend to focus first and foremost on obligations that directly address polluting activities. However, the behaviour of companies, citizens and (institutional) investors such as pension funds can also be steered (or nudged) by law in a desired direction. In light of this, it would also be interesting to examine and understand how very different governmental actions, being on the one hand the direct imposition of obligations on greenhouse gas emitters, and, on the other hand, the regulation of financial market players, interact. This section aims to provide an introductory discussion of the role of financial laws adopted at EU level. Such discussion is needed in view of the Paris Agreement, which states that finance flows need to be consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.128 To what extent this objective can be seen as entailing a specific obligation for each party to the Paris Agreement cannot yet be identified with certainty, but, nonetheless, is a fundamental guiding principle for the implementation of the convention. Further case law could provide clarity on the fact whether, in domestic orders, governments – and perhaps even private parties – can be held to account to implement such a principle. While the ‘finance flow’ principle as codified in the Paris Agreement is indeed not directly applicable to private

125 See for example, https://​www​.euractiv​.com/​section/​energy/​news/​ericsson​-5g​-could​-dramatically​ -increase​-network​-energy​-consumption/​. 126 Peeters (n. 10), 137. 127 We would like to stress that the further improvement of the instruments mentioned above of course needs further research too, but falls outside the scope of this chapter. Changes of the instruments are already foreseen, and the European Court of Auditors also plays a role in this respect; see for example, ‘Special Report 18/2020: The EU’s Emissions Trading System: free allocation of allowances needed better targeting’, available at https://​www​.eca​.europa​.eu/​sites/​ep/​en/​Pages/​DocItem​.aspx​?did​=​54392, and the related council conclusions from 17 December 2020, available at https://​data​.consilium​.europa​ .eu/​doc/​document/​ST​-14198​-2020​-INIT/​en/​pdf. 128 Paris Agreement, Art. 2(1)(c). See in this respect the conclusions from the European Council stating that ‘As a general principle, all EU expenditure should be consistent with Paris Agreement objectives.’ European Council conclusions from 17–21 July 2020 on the recovery plan and multiannual financial framework for 2021–2027 https://​www​.consilium​.europa​.eu/​en/​press/​press​-releases/​2020/​07/​21/​ european​-council​-conclusions​-17​-21​-july​-2020/​, p. 7 (A21). Note also that ‘An effective methodology for monitoring climate-spending and its performance, including reporting and relevant measures in case of insufficient progress, should ensure that the next MFF as a whole contributes to the implementation of the Paris Agreement’, conclusions p. 14 (para. 18).

84  Research handbook on climate change mitigation law investors in particular, it can still serve as contextual legal guidance that – in some jurisdictions, especially those that are very open to applying international law in domestic judicial decisions – could have influence on or even become part of judicial argumentation.129 We say this with caution, since it is hard to predict how case law will develop; a first step would be that claimants point to this Article of the Paris Agreement. Back to the European Union: the fact that the EU is based on – and has established – an internal market, including the free movement of (financial) services and capital,130 and at the same time has ambitious climate policy goals, means that one can assume that the EU also tries to integrate climate concern into its market regulations. In essence, from a treaty perspective, the concern of climate change – being obviously an environmental concern – needs to be integrated into the Union’s ‘policies and activities’.131 Moreover, in the Commission proposal for the EU Climate Law, provisions are included in order to reach consistency of Union measures with the climate neutrality objective. This includes the assessment, already discussed above, of ‘any draft measure or legislative proposal in light of the climate-neutrality objective’ which needs to be included in ‘any impact assessment accompanying these measures or proposals’.132 The proposed provision reads as a procedural measure, since it is not clearly stated that all Union acts have to contribute to the climate neutrality objective. Moreover, the provision does not solve potential weighing problems either, for instance when climate measures would harm other environmental concerns, such as nature values.133 Admittedly, it is hard to forecast and regulate the priority that should be given to climate-related measures above other values, such

We are not aware – and did not examine comprehensively – whether the argument has been brought in specific cases in jurisdictions across the world. See for an example of litigation (in the UK) on how the government (the central bank) invests: R (on the application of People & Planet) v HM Treasury, addressing the policy adopted by HM Treasury for handling its investment in Royal Bank of Scotland (RBS) – with an argument that RBS provided financial support for many projects which had a detrimental effect on both climate change and human rights. The case is available at http://​climatecasechart​.com/​ non​-us​-case/​r​-on​-the​-application​-of​-people​-planet​-v​-hm​-treasury/​ and was decided in 2009, so before the conclusion of the Paris Agreement. Although the claim failed, it did get a lot of public attention (Master’s thesis, Kate Smethills, Maastricht University 2019–2020, p. 24, available upon request); and ‘In 2018, nine years since the claim was brought, RBS made a public announcement that it had officially ended all financial support for projects that had a detrimental effect on climate change and human rights as part of its investment policy.’ 130 TEU Article 3(3) states that the internal market ‘shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.’ See further on free movement, TFEU Art. 26. 131 TFEU Art. 11. 132 Commission proposal, Article 5(4), discussed in section 2.3. At the time of writing it is not clear how the provision will be designed, particularly in connection to the trajectory that the Commission proposes. Interestingly, the provision does not exclude draft implementing or delegated acts. 133 This is a challenge yet to be further examined by legal scholarship. It is to be recalled that according to the TEU and TFEU, a high level of environmental protection has to be adhered to; however, this general objective does not solve the weighing issue, particular where it concerns intra-environmental conflicts such as the establishment of wind energy versus protection of nature. Furthermore, climate and other environmental values, such as biodiversity, must not be opposed to one another, nor be approached as static elements, as they are all part of the same dynamic system. The UNFCCC defines the ‘climate system as the totality of the atmosphere, hydrosphere, biosphere and geosphere and their interactions’ (Article 1). 129

The EU and its rule-creating force for climate neutrality by 2050  85 as other environmental values including preserving biodiversity, and also other concerns such as economic circumstances. After all, Article 11 TFEU, regulating the external integration principle, points at ‘sustainable development’, which traditionally entails a weighing of different values and concerns. To ‘facilitate and stimulate the public and private investments needed for the transition to a climate-neutral, green, competitive and inclusive economy’, but also to provide public funding, the EU has taken, or is trying to take, several measures.134 The European Council pointed at prioritising climate change in EU budgets, in the following way (where MFF stands for Multiannual Financial Framework and NGEU for New Generation EU): Climate action will be mainstreamed in policies and programmes financed under the MFF and NGEU. An overall climate target of 30% will apply to the total amount of expenditure from the MFF and NGEU and be reflected in appropriate targets in sectoral legislation.135 They shall comply with the objective of EU climate neutrality by 2050 and contribute to achieving the Union’s new 2030 climate targets, which will be updated by the end of the year. As a general principle, all EU expenditure should be consistent with Paris Agreement objectives.136

As well as actions that involve public money, including the Just Transition Mechanism and a Just Transition Fund aiming to address social and economic consequences related to the transition to a climate-neutral society,137 the financial activities of the private sector are also subjected to regulation. This illustrates the policy aim of the Union to ‘fully exploit the potential of the internal market to achieve’ sustainable development.138

See, for a coherent explanation, including the mobilisation of public funding, information provided by the EU, for example, the European Council conclusions from 17–21 July 2020 on the recovery plan and multiannual financial framework for 2021–2027 https://​www​.consilium​.europa​.eu/​en/​press/​ press​-releases/​2020/​07/​21/​european​-council​-conclusions​-17​-21​-july​-2020/​ and, earlier, the website from the European Commission https://​ec​.europa​.eu/​regional​_policy/​en/​newsroom/​news/​2020/​01/​14​ -01​-2020​-financing​-the​-green​-transition​-the​-european​-green​-deal​-investment​-plan​-and​-just​-transition​ -mechanism (accessed 2 August 2020). 135 Earlier, Regulation (EU) 2015/1017 of the European Parliament and of the Council specified a 40% climate investment target for infrastructure and innovation projects under the European Fund for Strategic Investment, see preamble, para. 17, of Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088, OJ EU L 198/13. 136 European Council Conclusions from 17–21 July 2020 on the recovery plan and multiannual financial framework for 2021–2027, p. 7 (A21). 137 More information is given on the website from the European Commission, for instance, https://​ ec​.europa​.eu/​commission/​presscorner/​detail/​en/​qanda​_20​_24 (accessed 4 August 2020), and see also about InvestEU, https://​ec​.europa​.eu/​commission/​priorities/​jobs​-growth​-and​-investment/​investment​ -plan​-europe​-juncker​-plan/​whats​-next​-investeu​-programme​-2021​-2027​_en (accessed 4 August 2020). 138 As stated in the preamble, para. 9, of Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088, OJ EU L 198/13. 134

86  Research handbook on climate change mitigation law 2.4

The Taxonomy Regulation: Aiming to Provide Clarity on ‘Environmentally Sustainable’ Investments

A new EU regulation, the so-called Taxonomy Regulation (entered into force in 2020),139 aims to stimulate sustainable investment by market actors.140 This Regulation is of a facilitative nature since it aims to provide clarity to the market with regard to the possibility of calling investments sustainable. This is done by introducing a classification system (a taxonomy) that aims to avoid ‘greenwashing’ (meaning that activities are called environmentally friendly while in practice they are not sufficiently green).141 In its preamble, the Regulation refers to article 2(1)(c) of the Paris Agreement (to make financial flows consistent with the climate objectives) and the Regulation is even said to be ‘a key step towards the objective of achieving a climate-neutral Union by 2050’ (emphasis added).142 Furthermore, the EU legislator expects that providing a classification system for sustainable investments may lure market participants not covered by the Regulation to publish information on the sustainability of their activities voluntarily.143 From a legal perspective, it needs to be observed that legal action against ‘false’ or greenwashing information may be hard to take, but is not impossible.144 The Aarhus Convention has not yet provided detailed and result-oriented provisions with regard to how to regulate environmental information disclosure by private actors, since its Article 5(6) only states that ‘Each Party shall encourage operators whose activities have a significant impact on the environment to inform the public regularly of the environmental impact of their activities and products, where appropriate within the framework of voluntary eco-labelling or eco-auditing schemes or by other means.’145 The Taxonomy Regulation moves beyond this provision and introduces hard law for the possibility for market actors covered by the Regulation to call investments environmentally sustainable.146 Importantly, the Regulation concerns ‘environmentally sustainable economic activities’, which illustrates that the environmental dimension of the concept of sustainable development

We are grateful to Gabrielė Vilemo Gotkovič, who wrote a paper on ‘EU Sustainable Finance Regulation & Institutional Investors’ in the academic year 2019–2020 at Maastricht University and, in this way, introduced us to this specific field of law. The paper contains an excellent introduction and discussion of EU sustainable finance regulation. 140 Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088, OJ EU L 198/13 (published 22 June 2020; see for its entry into force Article 27). See the preamble for the history of its development, including the work of a High-Level Expert Group. 141 In words of the Regulation, ‘a shared, holistic understanding of the environmental sustainability of activities and investments’, preamble para. 6. 142 Taxonomy Regulation, preamble para. 3. 143 Taxonomy Regulation, preamble paras 15 and 22. 144 This issue needs further research (including examining the issue mentioned in preamble para. 21). Possibly national committees (codes) assessing the trustworthiness of public advertisements can play a role. 145 Of course, the Protocol on Pollutant Release and Transfer Register (PRTR protocol) provides important provisions on disclosing emissions information, but not in products or services. 146 Article 1 of the Taxonomy Regulation sets the scope, including ‘financial market participants that make available financial products’ and ‘undertakings which are subject to the obligation to publish a non-financial statement or a consolidated non-financial statement pursuant to Article 19a or Article 29a of Directive 2013/34/EU of the European Parliament and of the Council(68), respectively’. 139

The EU and its rule-creating force for climate neutrality by 2050  87 is the objective of the Regulation.147 This is important in view of the breadth, and, consequently, interpretation challenges of the term ‘sustainable development’.148 A variety of actors are under the obligation to disclose information so that the environmental sustainability of their activities can be understood.149 Disclosure duties are aligned to other EU laws such as the Regulation on sustainability-related disclosures in the financial services sector.150 As is almost always the case, this Regulation requires further rule-making, and particularly the rules that specify environmental impacts can be very complex, detailed and in need of regular updates.151 As a rule of thumb, ‘An economic activity should not qualify as environmentally sustainable if it causes more harm to the environment than the benefits it brings’ and for assessing this, the precautionary principle – by no means an easy principle to apply – is relevant, according to the EU legislator.152 Enforcement will be the task of national authorities, which will hence have the challenge to understand and check compliance with complex criteria.153 The Commission is entrusted with the task of adopting further rules by means of delegated acts to set the criteria for what can be called environmentally sustainable investments.154 This provision is critically described as the ‘Commission becomes the power that will regulate 147 See, for instance, its Article 3; nonetheless, see Article 3(c) and preamble para. 35 explaining that minimum safeguards related to human and labour rights need to be complied with. Article 22 of the Taxonomy Regulation hints at including social objectives in the future. 148 Gyula Bándi, ‘Principles of EU Environmental Law Including (the Objective of) Sustainable Development’ in Marjan Peeters and Mariolina Eliantonio, Research Handbook on EU Environmental Law (Edward Elgar Publishing 2020) Chapter 2. 149 Taxonomy Regulation; see for instance preamble para. 18 and Article 9. Six environmental objectives have been selected, which are: climate change mitigation; climate change adaptation; the sustainable use and protection of water and marine resources; the transition to a circular economy; pollution prevention and control; and the protection and restoration of biodiversity and ecosystems (para. 23). Obligations to disclose information can be found for instance in Articles 5, 6 and 8. 150 Taxonomy Regulation, preamble para. 19, referring to Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability-related disclosures in the financial services sector (OJ L 317, 9.12.2019, p. 1); see also Articles 5, 6 and 7 of the Taxonomy Regulation. 151 See in a nutshell the Taxonomy Regulation, preamble para. 38. 152 Taxonomy Regulation, preamble para. 40 and Article 19(1)(f). See for the legal definition of ‘environmentally sustainable economic activities’ Article 3. See also Article 16. 153 Taxonomy Regulation, preamble para. 18 and para. 55 (with reference to aligning the enforcement with other EU Regulations) and Articles 21 and 22. See also the following statement of awareness: To avoid overly burdensome compliance costs on economic operators, the Commission should establish technical screening criteria that provide for sufficient legal clarity, that are practicable and easy to apply, and for which compliance can be verified within reasonable cost-of-compliance boundaries, thereby avoiding unnecessary administrative burden. Technical screening criteria could require carrying out a life-cycle assessment where sufficiently practicable and where necessary. Taxonomy Regulation, preamble para. 47. Obviously, the intended avoidance of overly burdensome compliance costs will also have benefits for the enforcement authorities. 154 See, on the delegation of rule-making power to the European Commission, para. 54 and Article 22 of the Taxonomy Regulation. See for a critical comment highlighting opacity, imprecision and subjectivity: Daniel Guéguen, ‘The EU’s green finance taxonomy: an Orwellian mechanism’ (published on Euractive: https://​www​.euractiv​.com/​section/​energy​-environment/​opinion/​the​-eus​-green​-finance​ -taxonomy​-an​-orwellian​-mechanism/​) 20 November 2020 (accessed 3 December 2020). Delegated acts are made possible by Article 290 TFEU and are already discussed above in the context of the EU climate

88  Research handbook on climate change mitigation law issues of vital importance’.155 Nonetheless, the Regulation provides some criteria that the Commission of course has to adhere to, such as a kind of special treatment for ‘economic activities and sectors for which there are no technologically and economically feasible low-carbon alternatives’.156 Such activities can still be qualified as contributing substantially to climate change mitigation if their greenhouse gas emissions are substantially lower than the sector or industry average, they do not hamper the development and deployment of low-carbon alternatives and they do not lead to a lock-in of assets incompatible with the objective of climate neutrality, considering the economic lifetime of those assets.157

Since such activities are often also regulated by other EU climate law, such as the EU ETS (for instance with regard to the cement or steel industry, and, clearly, aviation emissions),158 one may expect that compliance with such law may also be relevant to qualifying as ‘sustainable’.159 However, the Regulation does not make any explicit cross-reference to the EU ETS Directive, while many other environmental Directives are referred to. But, taking the narrower focus of financial laws, the Taxonomy Regulation is already difficult to understand in terms of its relationships with other such laws. For instance, the disclosure obligations of the Taxonomy Regulation ‘supplement the rules on sustainability-related disclosures’ laid down in another Regulation on sustainability-related disclosures in the financial services sector which will apply from 10 March 2021.160 This law provides ‘additional disclosure requirements to the existing elements of [five] relevant sectoral legislations … via a self-standing text (lex specialis) providing full harmonisation, cross-sectoral consistency and regulatory neutrality’.161

law proposal. Guéguen highlights serious issues with the procedure of the adoption of the delegated act with criteria for the climate-related taxonomy. 155 Daniel Guéguen (n. 154). See, for a kind of expert committee (the ‘Platform sustainable finance’, being an advisory body) involved in this Commission decision-making, https://​ ec​ .europa​ .eu/​ info/​ publications/​sustainable​-finance​-platform​_en (accessed 4 December 2020). 156 Taxonomy Regulation, preamble para. 41 (quotes derived from this para.) and Article 10. 157 See n. 155. 158 We did not, however, check the exact coverage of the Regulation: it does not apply to aviation (and industrial) emissions directly, but may apply, we assume, to investments in such sectors. One interesting issue is the coverage by the Regulation of financial products: is trade in EU ETS allowances covered? See Article 1(2)(b) of the Regulation. And what about trade in (voluntary) offsets generated by forestry? Such issues need further exploration and research. 159 Article 10(2), providing a special arrangement for activities without technologically and economically feasible low carbon alternatives (will the cost of allowances play a role here?), puts forward that the activity ‘has greenhouse gas emission levels that correspond to the best performance in the sector or industry’. However, see also Article 17 (‘where that activity leads to significant greenhouse gas emissions’): the joint interpretation of Articles 10 and 17 needs further consideration. 160 Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability‐related disclosures in the financial services sector. 161 Explanation provided by the European Commission, https://​ec​.europa​.eu/​info/​business​-economy​ -euro/​banking​-and​-finance/​sustainable​-finance/​sustainability​-related​-disclosure​-financial​-services​ -sector​_en (accessed 3 December 2020). The European Commission only mentions the abbreviations of these five sectoral laws: AIFMD, UCITS, Solvency II, IDD and MiFID II.

The EU and its rule-creating force for climate neutrality by 2050  89 The aim of this discussion of the Taxonomy Regulation is not to provide a detailed insight into its content, or its relationship to other laws,162 but to flag that, as well as the hard law approaches discussed in section 3.2 above, and the governance approach undertaken by the Governance Regulation, to be complemented by the proposed EU Climate Law, other measures are taken that are also worthwhile to examine. One important issue is how effective will such a financial approach be towards reaching a sufficiently fast decrease of emissions, and, ultimately, climate neutrality? How will this body of law interact with or complement with hard core climate law instruments, such as emissions standards for cars and the EU ETS for industries and aviation? Besides this, there is also an important EU institutional law perspective: how is the balance of powers arranged between, on the one hand, the ordinary EU law-maker, and, on the other hand, the Commission as the sole institute entrusted with delegated and implementing powers? In that respect, and taken from a more societal perspective, how will society react to the increase of power at EU level, particularly in respect of the Commission, and will this result in more support for the EU or lead to an increase in resistance?163 What kind of EU action will be appreciated more in the national spheres; will it be the market approaches aiming to provide more clarity on what can be seen as environmentally friendly? Will the EU citizens be proud to be part of the journey to climate neutrality by a European Union predominantly using market forces – thereby trying to let the market work for sustainability? Anyway, for future legal research, it is clear that the thoroughness of the approach towards climate neutrality in the next decades should not only be assessed by scrutinising the performance of individual Member States – as orchestrated under the Governance Regulation – but also the performance of EU institutions, in particular the Commission being entrusted with important powers. One of the challenges is how the decision-making of the Commission will be perceived as doing the right thing. The technical and complex characteristics of the decisions are, however, a barrier in this respect.164 Nonetheless, and on a more positive note, the potential role the Taxonomy Regulation can play outside EU territory also needs further examination. Since the Taxonomy Regulation applies to large undertakings,165 requiring them to disclose inter alia ‘the proportion of their turnover derived from products or services associated with economic activities that qualify as environmentally sustainable’ the Regulation has – we assume – at least some reach outside EU

See, for an overview of sustainable finance laws (initiatives), Commission legislative proposals on sustainable finance https://​ec​.europa​.eu/​info/​publications/​180524​-proposal​-sustainable​-finance​_en (accessed 4 December 2020). 163 See, in this respect, earlier observations as to how citizens might perceive the increased EU powers with the EU ETS: Marjan Peeters, ‘Legislative Choices and Legal Values: Considerations on the Further Design of the European Greenhouse Gas Emissions Trading Scheme from a Viewpoint of Democratic Accountability’ in M. G. Faure and M. Peeters (eds), Climate Change and European Emissions Trading: Lessons for Theory and Practice (Edward Elgar Publishing 2008), 17–52. 164 See, as a randomly picked illustrative example, the following citizen comment: https://​ec​.europa​ .eu/​info/​law/​better​-regulation/​have​-your​-say/​initiatives/​12501​-Emise​-CO2​-z​-vozidel​-Monitorov​-n​-a​ -zku​-ebn​-postupy​-pro​-osobn​-automobily​-a​-dod​-vky​-aktualizace​-/​F541625 (regarding the consultation by the Commission for its decision on CO2 vehicle emissions – monitoring and test procedures for cars and vans). 165 Article 8 of the Taxonomy Regulation refers to undertakings covered by Directive 2014/95/EU amending 2013/34/EU on financial reporting. 162

90  Research handbook on climate change mitigation law territory.166 Further research can delve into the question of how the EU taxonomy approach relates to already existing voluntary approaches for qualifying and disclosing environmental information, and whether the EU has some global influence on what is to be perceived as sustainable investment in view of the needed climate transition. In conclusion, the financial streams established in the EU also matter with regard to the climate transition, but the legal dimensions have yet to be further examined. The political agreement reached between the European Parliament and the Council on the Recovery and Resilience Facility (RRF) makes a gigantic sum of money available for loans and grants (€672.5 billion), and, notably, at least 37% thereof, being part of national recovery and resilience plans, should support climate objectives.167 It will be interesting to see how all the different initiatives, including the Taxonomy Regulation focusing on private investments, will contribute to implementing the 2050 objective of climate neutrality.

3

CLIMATE LITIGATION IN THE EU

3.1

Litigation in the Context of Already Adopted EU Climate Laws

Next to adopted EU climate laws, another important force on the European continent stems from recent climate litigation on greenhouse gas reductions to be accomplished by governments, either at national level or at EU level. Obviously, climate litigation can cover many different issues and, for instance, with regard to the EU ETS but also the Renewable Energy Directive, many CJEU decisions have been laid down, but in this section we focus on the trend of taking governments, including EU institutions, to court, either to urge more ambitious mitigation action through the courts or to demand compliance with earlier reduction goals – set at either EU or national level.168 The litigation demanding more ambitious governmental policies is remarkable in light of the fact that the EU has already adopted relatively ambitious climate laws, particularly compared to other regions in the world.169 Meanwhile, given the policy (and legislative) developments to adopt a stronger interim target for 2030 and to codify the 2050 climate neutrality objective, it can be expected that litigation demanding governments to ensure compliance with the set goals will be one of the important trends in the next decades. However, litigation can also take place to demand even stronger targets than are already being considered for 2030 and 2050, as we will see below.

The scope and potential external influence of the Taxonomy Regulation deserve further investigation. See for an indication of the limited scope: communication to the Dutch Parliament from 15.01.2021 (2020–2021 Kamerstuk 35570-IX, nr. 42, Tweede Kamer der Staten-Generaal: Het Groene Label, Atradius Dutch State Business, Versie december 2020, p. 7). 167 Commission welcomes political agreement on Recovery and Resilience Facility, at https://​ec​ .europa​.eu/​commission/​presscorner/​detail/​en/​ip​_20​_2397 (accessed 24 December 2020). 168 This section will focus on litigation against governments and will be discussed from an EU law perspective. Other important litigation, particularly claims from private actors (particularly NGOs and/ or individuals) against emitters fall outside the scope of this section. It will be interesting, however, to examine how public law requirements will impact the litigation against emitters (will they be forced to do more than is already regulated by public law?). 169 Although the UK has, as a single country, submitted a target of 68% emission reduction by 2030 (see section 2). 166

The EU and its rule-creating force for climate neutrality by 2050  91 3.2

Litigating the Target for 2030 at EU Level

At EU level, an action urging more stringent EU climate legislation has been brought to the CJEU by a group of ten families, some living in the EU but others living outside Europe (Kenya and Fiji), together with an association governed by Swedish law, which represents young indigenous Sami (the Carvalho case).170 The application was made before the setting of the 2050 target and the strengthening of the 2030 target were proposed, and hence it focuses on attacking the 40% target for 2030. Locus standi is at the heart of this case, seeking the annulment of a broad EU legislative package, dedicated to greenhouse gas emissions, for its insufficient ambition. In short, the claimants argue that the technical and economic capacity of the European Union extends to reducing those emissions much more than has been legislated for in respect of emissions reductions by 2030 (being 40% emissions reduction). The claimants ask for an order to reduce emissions by at least 50 to 60%, or by such higher level of reduction as the Court shall deem appropriate.171 Given the fact that the EU is most likely moving to codify the target of 55% reduction in 2030, as has been discussed in the previous sections, the claim is still more ambitious than the current political will at EU level. However, it is uncertain whether the case will expand on substance, as, in an order of 8 May 2019, the General Court dismissed the action as being inadmissible – which order has been appealed. Reasserting the long-standing Plaumann doctrine,172 the General Court observed that it is true that every individual is likely to be affected one way or another by climate change, that issue being recognised by the European Union and the Member States who have, as a result, committed to reducing emissions. However, the fact that the effects of climate change may be different for one person than they are for another does not mean that, for that reason, there exists standing to bring an action against a measure of general application.173

An alternative means for citizens to try to realise more ambitious action – if that is not possible through the CJEU with its (often) marginal control of the legality of EU secondary law – would be to consider an European Citizens’ Initiative.174 Article 11 TEU states that not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

T-330/18, Armando Carvalho v European Parliament and Council, 8 May 2019, ECLI:​EU:​T:​ 2019:​324. See, for a discussion (by a scholar involved in the case), Gerd Winter, ‘Armando Carvalho and Others v. EU: Invoking Human Rights and the Paris Agreement for Better Climate Protection Legislation’ (2020) 9(1) Transnational Environmental Law 137–164. 171 Case T-330/18, para. 18. 172 Judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:​C:​1963:​17, p. 223; of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:​C:​2013:​625, paragraph 72; of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:​C:​2014:​ 100, paragraph 57; and of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:​C:​2014:​105, paragraph 44. 173 Case T-330/18, para. 50. 174 See Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European Citizens’ Initiative, and Articles 11 TEU and 24 TFEU. 170

92  Research handbook on climate change mitigation law For legal scholarship, it would be interesting to examine why addressing the courts is seemingly more popular than using such a democratic instrument – the latter also being surrounded with complexities and barriers.175 One of the important debates in EU environmental law scholarship focuses on the issue whether standing criteria for the CJEU should be relaxed;176 in addition to this, legal scholarship should also examine whether other tools, such as the European Citizens’ Initiative, are useful instruments to accommodate concerns from citizens regarding important issues such as EU action with regard to climate change.177 This is essentially a choice between using upstream or downstream channels, the one having the potential to activate the democratic process, the other testing the limits of judicial control. Of course, the complementary functions of both channels are important to consider in this respect. An appeal is now pending in the Carvalho case, on the grounds that the General Court erred in ‘not adapting the Plaumann test in light of the compelling challenge of climate change and the foundation of the appellants’ case in their individual fundamental rights, including a guarantee of effective legal protection of those rights’.178 Even if the standing hurdle can be overcome, it is yet very uncertain that the CJEU would intervene in the legislative decision regarding the level of reduction of ambition.179 New jurisprudential developments are of course not excluded, particularly regarding the exceptional and dramatic problem of climate change, and perhaps the CJEU – if overcoming the standing requirements – would be willing

175 We are grateful to Julia Hönnecke who developed at Maastricht University a Bachelor’s thesis examining the development of European Citizen Initiatives in the field of climate change, showing that there has yet been no research on this specific item. To the best of our knowledge, environmental law literature has indeed hardly addressed this tool in the context of improving EU climate laws. 176 See, among many other publications, Matthijs van Wolferen and Mariolina Eliantonio, ‘Access to Justice in Environmental Matters in the EU: The EU’s Difficult Road towards Non-Compliance with the Aarhus Convention’ in Marjan Peeters and Mariolina Eliantonio, Research Handbook on EU Environmental Law (Edward Elgar Publishing 2020) 148–163. On the role of the preliminary ruling as a way to bypass standing issues, see S. Röttger-Wirtz, ‘Case C-616/17 Blaise and Others: The Precautionary Principle and its Role in Judicial Review – Glyphosate and the Regulatory Framework for Pesticides’ (2020) 27(4) Maastricht Journal of European and Comparative Law 529–542. 177 Perhaps legal scholars have more belief in litigation since they tend to find solutions through the discipline they are familiar with, see Catriona McKinnon and Marie-Catherine Petersmann, ‘Is Climate Change a Human Rights Violation?’ in Mike Hulme (ed.), Contemporary Climate Change Debates (Earthscan 2020) 168, with this quote from Koskenniemi: ‘lawyers are enchanted by the law that is familiar to them and the institutions and practices they are involved with; that makes them often unable to find a good solution to the problem they are faced with’. Are EU environment law scholars generally more familiar with litigation than with relatively new democratic instruments such as the European Citizens’ Initiative? 178 Appeal brought on 23 July 2019 by Armando Carvalho and Others against the order of the General Court (Second Chamber) delivered on 8 May 2019 in Case T-330/18: Carvalho and Others v Parliament and Council; Case C-565/19 P. 179 See for a discussion of CJEU case law thus far (so before the Carvalho case): Delphine Misonne, ‘The Importance of Setting a Target: The EU Ambition of a High Level of Protection’ (2015) 4(1) Transnational Environmental Law 11–36. See for a discussion of new developments, including that the requirement to reach a certain level of ambition is legally relevant and judicially cognisable, as demonstrated by the CJEU’s case law: Delphine Misonne and Nicolas de Sadeleer, ‘Art. 37’ in F. Picod, S.Van Drooghenbroeck and C. Riscallah (eds), Charte des droits fondamentaux de l’Union européenne (Bruylant 2020) 921–950; Alicja Sikora, ‘The Principle of a High Level of Protection as a Source of Enforceable Rights’ (2016) 1 Cahiers de droit européen 399–418.

The EU and its rule-creating force for climate neutrality by 2050  93 to perform an ‘informational catalyst’ role: asking the EU legislator for a reconsideration of the target, thereby taking into account the scientific basis for setting the target, but not ordering a precise target itself.180 However, it remains to be seen whether the EU legislator would be urged to take its highest possible ambition, in the light of the conditions laid down in the Paris Agreement,181 which would break new ground.182 One of the yet unknown features is whether, and if so, how, the Paris Agreement will play a major role, although it is already confirmed by the CJEU that international agreements prevail over acts laid down by European Union institutions.183 Importantly, Article 193 TFEU gives, in principle, possibilities for Member States to adopt more stringent approaches compared to an EU environmental act.184 It will be interesting to see whether, at the national level, such more-stringent climate actions will be (or are already) undertaken, or can even be compelled through national courts.185 Most likely, one of the impor See in a more general way, not focusing on climate change: J. Scott and S. Sturm, ‘Courts as Catalysts: Re-Thinking the Judicial Role in New Governance’ (2007) 13(3) Columbia Journal of European Law 565–594. See more specifically related to climate change, see the following starting point formulated by a German Court: ‘Measures must be based on careful analysis and justifiable assumptions. The state must, for instance, consider scientific findings such as those published by the Intergovernmental Panel on Climate Change’, as discussed by Thomas Schomerus, ‘Climate Change Litigation: German Family Farmers and Urgenda – Similar Cases, Differing Judgments’ (2020) 17 Journal for European Environmental & Planning Law 322–332, at 328. See furthermore about the importance of accepting that the EU legislature is the most important power – even in view of its shortcomings: Damian Chalmers, ‘The Democratic Ambiguity of EU Law Making and Its Enemies’ in Anthony Arnull and Damian Chalmers (eds), The Oxford Handbook of European Union Law (Oxford University Press 2015) 303–326. See, for different views on the role of courts in intervening with policymakers: Eloise Scotford, Marjan Peeters and Ellen Vos, ‘Is Legal Adjudication Essential for Enforcing Ambitious Climate Change Policies?’ in Mike Hulme (ed.), Contemporary Climate Change Debates (Earthscan 2020) 191–206. 181 As already discussed in section 2, the Paris Agreement states that ‘each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’ (Art. 4.3). Thus far, EU law does not imply a legal objective to attain the highest possible ambition in environmental policies, which also explains the raison d’être of Article 193 TFEU as far as the environmental chapter is concerned. 182 By contrast, for instance, to a dated CJEU case, not focused on exactly the same issue: Bettati v Safety HiTech Srl (1998) Court of Justice of the European Union, ECLI:​EU:​C:​1998:​353. 183 See Case C-352/19P, Région de Bruxelles Capitale v Commission, para. 25, referring to earlier case, Intertanko et al., C‑308/06. International agreements cannot prevail over EU primary law. The interpretation of the specific provisions of the Paris Agreement will be crucial. See, for a discussion, among many others: Daniel Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) Review of European Community & International Environmental Law 142–150 . 184 See for a recent discussion of Article 193 TFEU: Leonie Reins, ‘Where Eagles Dare: How Much Further May EU Member States Go under Article 193 TFEU?’ in Marjan Peeters and Mariolina Eliantonio, Research Handbook on EU Environmental Law (Edward Elgar Publishing 2020) 22–35. Also L. Squintani, Beyond Harmonisation (Cambridge University Press 2019). 185 In light of Article 193 TFEU, including specific possibilities in secondary legislation for Member States to move to more stringent protection (and avoiding the so-called waterbed effect) would prevent legal uncertainty on how to interpret Article 193 TFEU. However, the dilemma is how to regulate that in view of the starting point of a collective effort for an EU-wide reduction target. Of course, the legal base of the contested acts and the (related) possibility left to Member States to adopt more ambition is a decisive aspect, together with the possible embedding with health issues (see in this respect, but not specifically on climate change and not on national discretion, but as an example of how the precaution180

94  Research handbook on climate change mitigation law tant debates in EU climate law will be to what extent and how Member States can use Article 193 TFEU (or even, more daringly, Article 194 TFEU?) to move to more ambitious climate action compared to EU climate legislation, or whether they can even be forced by the national courts to apply more stringent emission reductions compared to EU law,186 including eventually becoming climate neutral within their own territory. This shifts the focus to litigation in EU Member States, which will be discussed in the next section. 3.3

Litigation at Member State Level

Climate litigation on greenhouse gases reductions to be accomplished by governments has emerged in several EU Member States, but gaining a thorough understanding of it is truly a challenge. While important decisions have been laid down by courts in, for example, France, Germany, Ireland and the Netherlands, it falls beyond the scope of this chapter to provide an in-depth and comparative analysis (see Chapter 13). Legal research starts examining and compare the different cases in national orders thoroughly,187 taking the different national circumstances and judicial systems into account, in order to identify the reasons for judicial intervention, or lack thereof. 188 Authors have already illustrated that case law on seemingly the same matter in different jurisdictions differs remarkably,189 while also showing unusual features.190 Thus far, the claims asking for compliance with set EU or national law targets, or even asking for more ambitious action compared to EU law, have not yet induced national judges to submit preliminary questions to the CJEU which could provide some unity in judicial reasoning concerning EU climate law as the framework for national action.191 ary principle plays a role in case of uncertain risks for human health: C-616/17, Blaise, 2019, Grand Chamber, para. 42 and para. 52: ‘judicial review by the Court must necessarily be limited to whether the EU legislature … committed a manifest error of assessment’. 186 This has already been decided in the Urgenda case, to be discussed below. The issue of how to interpret Article 193 TFEU in this respect has not been submitted to the CJEU. See for the Supreme Court decision and its considerations on Article 193 TFEU ecli:​NL:​HR:​2019:​2007; for the official English translation, https://​uitspraken​.rechtspraak​.nl/​inziendocument​?id​=​ECLI:​NL:​HR:​2019:​2007. 187 See, for example, Christel Cournil, Les grandes affaires climatiques (DICE, Confluence des droits 2020) Vol. 10, available at https://​dice​.univ​-amu​.fr/​fr/​dice/​dice/​publications/​confluence​-droits/​ouvrages​ #numero10. 188 The timing also matters when examining the various cases: the Urgenda case was initiated at a time, in 2012, where the future of international law on climate change was most uncertain. The first instance judicial decision dates from before the conclusion of the Paris Agreement and at a time where EU law on climate and energy was very different. The legal context changed from the end of 2016 onwards, with the entry into force of the Paris Agreement, and with the expansion of EU law in order to implement the Paris Agreement, as discussed in sections 2–3 of this chapter. 189 Christel Cournil (n. 187); see also, for example, Thomas Schomerus, ‘Climate Change Litigation: German Family Farmers and Urgenda – Similar Cases, Differing Judgments’ (2020) 17 Journal for European Environmental & Planning Law 322–332. 190 Such unusual features concern, for example, communication tools, argumentation, nature and number of plaintiffs. See D. Misonne, ‘Renforcer l’ambition de l’Etat global dans un régime fédéral?’ in C. Cournil (ed.), Les procès climatiques (Pedone 2018), 149–164. 191 The Berlin administrative court gave a specific explanation for not submitting a preliminary question since the Effort Sharing Decision provided, in its view, sufficient clarity: Verwaltungsgericht Berlin, 31.10.2019 – 10 K 412.18. The full text is available at http://​www​.ge​richtsents​cheidungen​.berlin​ -brandenburg​.de/​jportal/​portal/​t/​17yp/​bs/​10/​page/​sammlung​.psml​?doc​.hl​=​1​&​doc​.id​=​JURE190015283​ &​ d ocumentnumber​ = ​ 3 ​ & ​ n umberofresults​ = ​ 1 72​ & ​ d octyp​ = ​ j urisr​ & ​ s howdoccase​ = ​ 1 ​ & ​ d oc​ . part​ = ​ L ​ &​

The EU and its rule-creating force for climate neutrality by 2050  95 As already observed above, and depending on the development of EU climate legislation, one important trend of EU climate law jurisprudence will most likely be actions for compliance with EU climate law. Already illustrative of this is a judgment of the French Conseil d’État of 19 November 2020,192 in which the higher French administrative jurisdiction, in order to be able to decide later on the substance of the case, asked more information from the French state as to how it truly intends to meet the trajectory already imposed by virtue of a French Decree of April 2020 on the national carbon budget, as related to the application of the EU 2018 Effort Sharing Regulation imposing a linear decrease of emissions – a requirement France is suspected of circumventing as it postponed it to a later part of the mitigation effort.193 For potential future litigation to enforce compliance with EU climate law, the conditions for accessing the national courts in order to address non-compliance by national governments are of course crucial. In other words, the implementation of Article 9(3) of the Aarhus Convention, in order to enable members of the public to address non-compliance with environmental law, including in particular obligations for Member States as provided for in EU climate law, is an important, but at the same time, sensitive issue for which no harmonising act has yet been adopted at EU level.194 In light of this, the European Parliament has attempted to reinforce access to national courts so that civil society can hold national governments to account with regard to their climate action: it adopted an amendment to the proposed EU Climate Law containing a provision on this matter, although it is limited to public consultation requirements as stipulated in Article 10 of the Governance of the Energy Union and Climate Action Regulation.195 Hence, EU law thus far lacks an access to national court provision that would enable civil society to enforce obligations for Member States, as stipulated in EU climate law, paramfromHL​=​true​#focuspoint (accessed 28 December 2020). Also, in the several court decisions in the Urgenda case, no need to submit a preliminary question was recognised; see on this matter regarding the first instance decision, Marjan Peeters, ‘Case Note Urgenda Foundation and 886 Individuals vs The State of the Netherlands: The Dilemma of More Ambitious Greenhouse Gas Reduction Action by EU Member States’ (2016) 25(1) RECIEL 123–129 and see, with regard to the Supreme Court decision, Chris Backes and Gerrit Van der Veen, ‘Urgenda: The Final Judgment of the Dutch Supreme Court’ (2020) 17 Journal for European Environmental & Planning Law 307–321, stating inter alia that ‘the court should have referred to the EU Court of Justice for a preliminary ruling on the validity of various EU law related norms’, p. 316. 192 Conseil d’État (France), Commune de Grande Synthe, 19 November 2020, no 427301. 193 Nicolas de Sadeleer, ‘Le Conseil d’État de France condamne le report de la réduction des émissions de gaz à effet de serre par les autorités françaises’, Justice en ligne, 8 January 2021, https://​www​ .justice​-en​-ligne​.be/​le​-Conseil​-d​-Etat​-de​-France. See https://​www​.conseil​-etat​.fr/​actualites/​actualites/​ emissions​-de​-gaz​-a​-effet​-de​-serre​-le​-gouvernement​-doit​-justifier​-sous​-3​-mois​-que​-la​-trajectoire​-de​ -reduction​-a​-horizon​-2030​-pourra​-etre​-respectee. While the Conseil d’État insisted on the need for France to interpret its legislation with due regard to the Paris Agreement, which it considers to be devoid of direct effect, it still did not consider the possible legal implications of the Effort Sharing Regulation. 194 Improving access to justice in environmental matters in the EU and its Member States, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM(2020) 643 final, 14 October 2020. 195 Amendments adopted by the European Parliament on 8 October 2020 on the proposal for a regulation of the European Parliament and of the Council establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (European Climate Law) (COM(2020)0080 – COM(2020)0563 – C9-0077/2020 – 2020/0036(COD)); https://​ www​ .europarl​ .europa​ .eu/​ doceo/​ document/​TA​-9​-2020​-0253​_EN​.html: (5a) the following Article is inserted: ‘Article 11a Access to justice:

96  Research handbook on climate change mitigation law through the courts.196 This seems an important gap since the proposed EU climate law includes a ‘shall’ obligation for Member States, ‘the Member States shall take the necessary measures at … national level respectively, to enable the collective achievement of the climate-neutrality objective set out in paragraph 1, taking into account the importance of promoting fairness and solidarity among Member States’.197 Since this ‘shall’ provision also contains vague terms (such as fairness and solidarity, and what would be the fair share of a Member State to the collective achievement?), it has yet to be seen whether courts would find it possible to derive specific obligations for Member States, which as such are not excluded depending on the specific circumstances.198 At least, this possibility of judicial intervention seems to be in the mind of national politicians, at least in the Netherlands, where of course the specific Urgenda court decision was laid down: the Dutch government informed its parliament that measures that have a negative impact on the achievement of the objectives as codified in the European Climate Law can be enforced through the courts across the EU, which would lead to a level playing field.199

1. Member States shall ensure that, in accordance with their national laws, members of the public concerned who have a sufficient interest or who claim the impairment of a right where administrative procedural law of a Member State requires such a right to be a precondition have access to a review procedure before a court of law or other independent and impartial body established by law with a view to challenging the substantive or procedural legality of decisions, acts or omissions subject to Article 10 of Regulation (EU) 2018/1999. 2. Member States shall determine the stage at which decisions, acts or omissions may be challenged. 3. Member States shall determine what constitutes a sufficient interest and impairment of a right, consistent with the objective of giving the public concerned wide access to justice. To that end, non-governmental organisation covered by the definition in Article 2(62a) shall be deemed as having a sufficient interest or having rights capable of being impaired for the purpose of paragraph 1 of this Article. 4. This Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law. Any such procedure shall be fair, equitable, timely and not prohibitively expensive. 5. Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.’ 196 Note that in the Dutch Urgenda case and in the German Family Farmers case the claims concerned policy targets, see the different judicial approaches in this respect in Schomerus (n. 188). For scholarly discussion it will be relevant to discuss to what extent policy targets stipulating a certain emission reduction should have legal effects (and hence, could be legally enforceable). 197 Art. 2(2); please note that the EU would also have this ‘shall’ obligation; see the full text of this proposed provision. 198 One should not forget that until 2030, specific emission reduction targets have been imposed on Member States for non-EU ETS emissions. National court procedures to enforce national governments to comply with those targets are not unthinkable. It remains to be seen, however, what the future is of this effort sharing approach after 2030: the Commission is even considering not continuing this approach: Commission Communication ‘Stepping up Europe’s 2030 climate ambition’ COM(2020)562 of 17 September 2020. See about the fear that future EU climate law would become more soft: Chamon and Peeters (n. 68). 199 In Dutch: ‘dat nationale maatregelen die negatief werken ten aanzien van het bereiken van de bindende doelstellingen vastgelegd in de verordening kunnen worden aangevochten voor de (nationale) rechter. Hierdoor ontstaat een gelijker speelveld binnen de Unie’. Brief van de Minister van buitenlandse

The EU and its rule-creating force for climate neutrality by 2050  97 Such a level playing field, to be achieved by judicial interventions, as considered by the Dutch government, is of course dependent on the implementation of Article 9(3) Aarhus Convention across EU Member States – an issue that indeed lacks harmonising legislation but on which strong CJEU jurisprudence has emerged, asking national courts to interpret Article 9(3) Aarhus Convention in a wide sense.200 However, if Member States are governed by rather vague provisions in EU climate legislation – as in the example above – it will be interesting to see how the national courts will strike the delicate balance between democratically developed national climate policies (including those codified in national legislation) and judicial intervention.201 Such national adjudication will of course also be influenced through future referrals for preliminary rulings, including referrals to clarify the provisions for the governance approach and the embedded discretion for Member States,202 next to more familiar legality checks against EU law.203 Addressing courts to hold national governments to account, particularly by means of legality checks against EU law, will obviously be important in case of shortfalls in compliance of Member States with EU climate legislation. In this respect, we can only hope that going to court will not be needed, through Member States acting sufficiently ambitiously. Furthermore, we would not be surprised if the gigantic financial stream flowing through EU channels, stimulating the needed transition, would be an even greater force for change than law is, leading to more emission reductions than legally required.

zaken aan de voorzitter van de Eerste Kamer der Staten-Generaal, 35 448 EU-voorstel: Voorstel voor een verordening van het Europees Parlement en de Raad tot vaststelling van een kader voor de totstandbrenging van klimaatneutraliteit en tot wijziging van Verordening (EU) 2018/1999 (Europese klimaatwet), Den Haag, 14 April 2020. 200 Brown Bear case I (Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, Case C‑240/09): It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union law, in order to enable an environmental protection organisation, such as the Lesoochranárske zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law. 201 It would be even better, of course, if access to court were not necessary given, hopefully, sufficiently ambitious action by EU Member States. 202 In a webinar lecture by one of the authors on this chapter, the (uncertain but not unthinkable) prospect of national courts giving some (indirect) legal weight to recommendations from the Commission made on the basis of the governance approach is mentioned (since Member States would need to take due account of them – see Article 6(3) of the Commission proposal; if that happened, the Commission would gain more power in this indirect way. This issue is yet to be examined in more depth. See ‘The proposed EU climate law: towards climate neutrality in 2050’ (online presentation), event organised by the Environmental Law Network International (ELNI), held on 23 June 2020; online webinar Event was hosted by Delphine Misonne, CEDRE, Université Saint-Louis Bruxelles, link to slides and video: https://​ www​.youtube​.com/​watch​?v​=​ZacGDZP​_Q1k​&​feature​=​youtu​.be. 203 See J. Verschuuren (n. 95), 79.

98  Research handbook on climate change mitigation law 3.4

Litigating against European Countries in Strasbourg

While the EU has developed, and is in the course of further developing, the package of EU climate legislation, all EU Member States are subject to a claim from six Portuguese young people (in age ranging from 8 to 21 years) submitted to the European Court of Human Rights, calling for deeper emission cuts.204 The EU as such is not a party to the ECHR and cannot be brought before the Strasbourg Court. The claim also addresses six other European states, being the UK, Switzerland, Norway, Russia, Turkey and Ukraine. With regard to the EU Member States, were the case to proceed on the merits, it would remain to be seen whether the fact that the EU has put in place climate laws applicable to them – with the chosen EU-wide reduction ambition of at least 40% by 2030 – would lead the Human Rights Court to find itself deferring to these legislative ambitions, or whether the Court would find a way to consider that (since this EU ambition is not the highest ambition possible) Member States should individually strengthen their approach.205 In their application form, the claimants point inter alia at the need for the EU (and it is not clear whether this translates to each Member State individually) to move to 68%206 emission reduction by 2030 in light of the 1.5 degrees objective – which is obviously much more than the 40%.207 Meanwhile, the legislative development at EU level to codify the 2030 target (most likely 55% by 2030 given the political endorsement by the European Council from 11 December 2020) runs almost in parallel with this ECtHR procedure, and if the EU legislator codifies the new 2030 target faster than the judges in Strasbourg decide, it will be very interesting to see how the ECtHR would translate this collective target (not specified in individual Member States targets) in order to assess the individual responsibility of the EU Member States. All in all, it would be very surprising if the ECtHR did not defer to the strengthened legislative ambition of the EU legislator.

See about the claim and the claimants: https://​www​.climatechangenews​.com/​2020/​09/​03/​six​ -portuguese​-youth​-file​-unprecedented​-climate​-lawsuit​-33​-countries/​ (accessed 28 December 2020). See for more information: http://​climatecasechart​.com/​climate​-change​-litigation/​non​-us​-case/​youth​-for​ -climate​-justice​-v​-austria​-et​-al/​ (accessed 5 May 2021). 205 Obviously, this would then have to be considered as an Article 193 TFEU situation according to EU law. Nonetheless, according to Ole W. Pedersen, ‘it is hard to imagine the ECtHR making findings similar to the Dutch Supreme Court in Urgenda when it comes to the specific details of emission reduction obligations’. Ole W. Pedersen, ‘The European Convention of Human Rights and Climate Change – Finally!’ 22 September 2020, https://​www​.ejiltalk​.org/​the​-european​-convention​-of​-human​-rights​-and​ -climate​-change​-finally/​(accessed 28 December 2020). 206 Interestingly, the UK has submitted a target of exactly 68% in its first NDC (as mentioned in section 2.1). 207 Page 26 of the annex to the application form, referring to statements from the UN Environment Programme. The application is available at http://​blogs2​.law​.columbia​.edu/​climate​-change​-litigation/​wp​ -content/​uploads/​sites/​16/​non​-us​-case​-documents/​2020/​20200902​_12109​_complaint​.pdf. Note that the European Parliament adopted a position to move to 60% in 2030 which is more ambitious than the 55% (see section 2.4) . 204

The EU and its rule-creating force for climate neutrality by 2050  99

4

CONCLUSION: WHAT APPROACH (WORKS) TOWARDS 2050?

EU climate law is characterised by a continuous process of further expansion and deepening, particularly where it concerns laws focusing on reducing greenhouse gas emissions. While before the conclusion of the Paris Agreement in 2015, the EU climate law package was already impressive in terms of number and complexity, the current and planned legislative efforts at EU level to implement the Paris Agreement – and the ambition of the European Green Deal – complement and widen the EU climate law acquis enormously. It will be a tremendous challenge for everyone working with, or interested in, EU climate law to acquire a good understanding of all EU measures, and, notably, its implementation in EU Member States. This chapter has provided a discussion of some core new elements of current EU climate law, particularly the emerging legal pathway towards climate neutrality to be achieved by 2050 and the establishment of financial approaches, such as the Taxonomy Regulation. Climate litigation is discussed in the light of this regulatory context. Since the ambition of the EU has increased, which can be illustrated by the process for stepping up the 2030 ambition, it would be logical to expect that future litigation strategies will focus on achieving compliance. Indeed, from a legal perspective, translating targets into concrete rules and compliance is the most important challenge for the next decades, particularly the current one up to 2030. Indeed, at the time of writing, within a period of nine years, existing legislation has to be amended, and accelerated mitigation action needs to take place. Until 2030, the regulatory approach continues to mainly consist of hard law, with the EU ETS and the Effort Sharing Regulation as already long-standing pillars of the regulatory approach.208 A basic characterisation of these regulatory approaches is that standards are set, but these are often provided with flexibilities to facilitate cost-effective compliance with those standards. For the period after 2020, this typical market-based hard law approach is complemented by the LULUCF Regulation, which is an essential component when working with a net target, as the EU Commission is wanting to do for the intensified 2030 target.209 From a legal perspective, one may, however, wonder whether such a compensatory approach – which includes emissions and removals from land use, land use change and forestry – is too complicated a concept, with a risk of misunderstandings or even fraud regarding the measurement and calculations of emissions and removals of emissions.210 In other words, there is a risk that the EU will stretch its preference for providing flexibilities and cost-effectiveness too far, thereby

But other legislation is relevant too, such as the regulation of fluorinated greenhouse gases and car and van emissions. 209 The outcome of the trilogue negotiations is not dealt with in this chapter: the European Parliament has a preference for not using a net target by 2030. The LULUCF approach is not discussed in this chapter but needs further research. Its complexity, including the need to understand land use and forestry, makes it difficult to examine from a legal perspective. See on LULUCF, Seita Romppanen, ‘The EU Effort Sharing and LULUCF Regulations: The Complementary yet Crucial Components of the EU’s Climate Policy beyond 2030’ in Marjan Peeters and Mariolina Eliantonio, Research Handbook on EU Environmental Law (Edward Elgar Publishing 2020) Chapter 27. 210 Or will new techniques provided by satellites help to ensure precise calculation? See Marjan Peeters, ‘Only 29 years to go – The challenging path towards climate neutrality in 2050’, Maastricht University Blog, 18 January 2021 https://​www​.​maastricht​university​.nl/​blog/​2021/​01/​only​-29​-years​-go​ -challenging​-path​-towards​-climate​-neutrality​-2050. 208

100  Research handbook on climate change mitigation law bearing the risk of an unexecutable package of laws and non-compliance, or, even worse, fraud. Meanwhile, a softer mode of regulation is also introduced by the Governance Regulation, based on plans to be developed by the Member States and to be assessed by the European Commission. This governance approach resembles the set-up of the Paris Agreement, although the EU governance approach has a more detailed legal framework with, for instance, ample consultation requirements. The effectiveness of this governance approach remains to be seen, including the extent to which the consultation practices turn out to be adequate approaches, and the question of what influence, even legal influence, the Commission recommendations may have. The Taxonomy Regulation is a very new and again very different regulatory approach with which traditional environmental lawyers, often educated in, for example, environmental impact assessment laws, planning, and permissions for industrial installations, are usually not familiar. Its effectiveness is probably also harder to assess compared to traditional climate law, such as the setting of a cap (EU ETS) or a countrywide emission reduction standard (Effort Sharing).211 One of the questions related to the Taxonomy Regulation is how it is possible to reflect the strengthening of overall reduction standards: the Taxonomy Regulation was adopted before the intensification of the 2030 target was endorsed by the European Council and submitted to the UNFCCC secretariat in the updated NDC on behalf of the EU and the Member States. Does the Regulation provide sufficient opportunity to align the criteria that qualify investments as being sustainable with the updated EU target? This is only one illustration of scholarly work that has yet to be carried out. The many legislative initiatives planned for 2021 will lead to a plethora of new questions, while progress is necessary to address the climate change problem. Moreover, there are also important questions to answer with regard to the Paris Agreement and its consequences for adjudication in the EU and national orders, such as the interpretation of what is to be understood by the ‘highest possible ambition’.212 The conclusions above focus on EU secondary climate legislation. However, while discussing the evolving secondary EU climate law package is already demanding and important, we also have shed light in this chapter on the potential need for strengthening primary EU law, particularly with a view to the promotion of renewable energy. EU climate action has predominantly been imagined within the system of competences for secondary law, and the limits of this approach need further attention. However, for such steps, the political reality is crucial: in December 2020, the European Council gave a strong signal that a strengthening of the EU with respect to energy policies is not supported. In this situation, the main onus is on national decision-making for making sufficient energy transitions to become climate neutral. In other words: refusing further EU action makes the national orders, including obviously the national politicians, even more responsible. It will be interesting to see how climate litigation in the national orders will play a role in this respect. Finally, only the future will tell us who has been shown to be a leader in the process towards climate neutrality. Will it be some EU Member States who decide to (and do) become climate neutral in their territory, even earlier than 2050? Or will it be a non-EU state, such as particularly the UK, having previously been a European leader by putting forward the national Although checking compliance with the (monitoring and reporting) provisions under the EU ETS and Effort Sharing needs meticulous attention. 212 Article 4(3) Paris Agreement. 211

The EU and its rule-creating force for climate neutrality by 2050  101 2008 Climate Act? Or will the EU itself be the driving force, with its huge package of EU climate laws and a possible reinforced EU integration, not only making use of regulation but also of gigantic financial streams?213 Or will the complexity of this EU climate law package, together with shortfalls in compliance and a further weakening of support from EU citizens for the EU as a whole, turn out to be the sobering future? No one can predict. The transition to a climate-neutral society – or European continent for that matter – is not an easy path; we have never walked it before.214 We can only hope that for addressing the climate change problem, the rule-creating force of the European Union will be a driver for the whole continent, and beyond. What is important for legal research is to try to examine its successes and failures; both are important lessons, although the time frame for learning is only short.

POST SCRIPTUM (5 MAY 2021) The chapter above is based on research up to 31 December 2020. However, in the first quarter of 2021 very important legal developments have already happened, such as the decision of the CJEU from 25 March 2021 to dismiss the appeal made by Carvalho and others, confirming the General Court’s position on their lack of locus standi. In contrast with this decision, the German constitutional court – only one day before, on 24 March 2021 – found constitutional complaints against the Federal Climate Change Act partially successful. That judgment considers the concept of climate neutrality (in a national context) and contains important considerations on the need to better distribute the mitigation effort over time, in a way that respects fundamental rights: ‘one generation must not be allowed to consume large portions of the CO2 budget while bearing a relatively minor share of the reduction effort if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to comprehensive losses of freedom’ . Moreover, the negotiations by the EU legislative institutions on the EU climate law have resulted, on 21 April 2021, in a political agreement, and the European Commission has adopted – after fierce debates in civil society and an enormous number of comments from the public – a draft delegated act on taxonomy for climate change mitigation and climate change adaptation. Such a dynamic development as has happened up to May 2021 is most likely illustrative of the future of EU climate law up to 2030 and beyond. Meanwhile, the current legislative package, which needs to be amended soon in order to be suitable to steer towards climate neutrality by at the latest 2050, is already very complex, and it will also be a challenge to examine the emerging climate case law, particularly at the national level (in many different languages …), as well as at the CJEU level. We hence hope that the coverage and discussion of EU climate law in this chapter, realised at the end of the second decennium, and 30 years before the deadline for climate neutrality lapses, is valuable for those who truly want to delve into an understanding of the strengths and weaknesses of EU climate law.

If legally acceptable: we did not assess the lawfulness of the new financial instruments established during the COVID-19 pandemic. 214 As stated in Peeters (n. 209). 213

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SECOND POST SCRIPTUM (19 MAY 2022) The European Union legal framework has been completed by the ‘European Climate Law’ of 30 June 2021 (Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No. 401/2009 and (EU) 2018/1999 (‘European Climate Law’)). On 14 July 2021, the European Commission launched a series of legislative proposals (including a revision of the ETS scheme and the Effort Sharing Regulation) and the adoption of these laws will be important not only for achieving climate neutrality by 2050 at the latest, but notably also the intermediate target of 2030 (‘Fit-for-55’).

5. Climate change mitigation law and policy in the United States and Canada Katrina Fischer Kuh and Michael Charles Leach

INTRODUCTION As two of the highest per capita greenhouse gas emitters in the world, the United States (U.S.) and Canada have a particular global responsibility to mitigate climate change. However, the development of climate mitigation and policy and law in both countries has been neither smooth nor straightforward, reflecting patterns of fits and starts, repeated international commitment making, and frequent failure to meet targets. With their large sizes and dispersed population centres, the two countries share many geographic, economic, and social similarities, and thus their patterns of emissions are comparable. Both are heavily reliant on fossil fuels as producers and consumers, and both countries historically developed their economies over the past two centuries through the exploitation of their vast natural resource reserves. Their economies are heavily integrated, and they actively trade energy products with one another. Canada is the largest foreign supplier of crude oil to the U.S., supplying 48% of its total imports, which amounts to 98% of all Canadian crude oil exports.1 Despite these general similarities, U.S. and Canadian climate change and mitigation policies have not always been synchronous over the years, and their forms and dynamics are quite different. The aim of this chapter therefore is to not only describe how climate mitigation policy at the national level in both countries is equally fractious, haphazard, and betrays significant deficits of political will, but also to explore how and why it is that the policies also differ considerably from one another. In part these differences are due to political differences between their respective governments over the years. In other important senses, however, these differences are structural, related to the different ways that the countries have decentralized power through their federal constitutional legal orders, as well as economic in ways that make the political stakes behind mitigation policy somewhat different between them. Both U.S. and Canadian voters typically find fossil fuel price increases politically unpalatable, and in both countries industries reliant on and producers of fossil fuels have been energetically opposed to climate action, and have successfully exercised political influence to curtail regulatory ambitions on this level as much as possible over the years. As a result, in both countries, climate change policy has been highly sensitive to electoral politics and has flipped back and forth as governments have changed hands between the Republican and Democratic parties in the U.S., and the federal Liberal and Conservative parties in Canada. Regional policy cohesion has been possible in moments when there is ideological similarity between U.S. and Canadian governments in power, but has also noticeably stalled when they have different approaches to climate change, most recently evident in the vast differences 1 Natural Resources Canada, ‘Crude Oil Facts’ https://​www​.nrcan​.gc​.ca/​science​-data/​data​-analysis/​ energy​-data​-analysis/​energy​-facts/​crude​-oil​-facts/​20064 accessed May 1, 2021.

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104  Research handbook on climate change mitigation law between the governments of President Donald J. Trump and Prime Minister Justin Trudeau. Until the inauguration of President Joseph R. Biden in January 2021, the federal governments of Canada and the United States had only seen eye-to-eye on environmental policy for a mere 15 months in the previous decade, between October 2015 and January 2017 when the Obama and Trudeau administrations shared policy interests in addressing climate threats. As such, regional climate policy initiatives are incomplete and patchy, and mostly taking the form of transboundary governance regimes over shared ecological zones and resources.2 With the United States as its primary customer for its energy exports, Canada has often taken the role of a ‘policy taker’ responding to cues given by the U.S. for meaningful action on climate change, but also protective of its national sovereignty vis-à-vis their powerful neighbour.3 The 2021 ‘climate summit’ may have been a signal of a new continental policy shift towards more aggressive action on emissions reductions in this regard. However, the picture is complicated because the energy profiles of the two countries are quite different, and therefore the scope and nature of policy change that will be required to achieve future reduction goals will also differ between them. The U.S. emissions profile is more a product of its energy uses, while Canada’s reflects its energy production, especially from its tar sands in Alberta. This creates different opportunities and challenges for the two countries to achieve their significant emissions reductions commitments, more easily achieved through fuel switching in the U.S. than Canada, which has long struggled to confront the difficult reality of its national economy’s being heavily dependent on emission-producing fossil fuel extraction.4 This chapter will explore the interplay between policy, politics, economics, and law at the domestic and international levels in both of these countries. It will begin with an overview of their respective emissions profiles, followed by a related description of the political and economic contexts in which politicians and lawmakers have had to craft emissions policy over the past few decades. This will be followed by a description of their respective international commitments and an overview of the different national and sub-national legal frameworks for climate mitigation currently in place. It is through such an overview that the contextual and structural similarities and differences will be teased out to account for not only why these two neighbouring countries’ mitigation policies look the way they do, but also why they differ. The chapter then concludes with a mixed tone of restrained optimism, tempered by an acknowledgement of the significant and difficult political difficulties that both countries will face in any future effort to meet any of the long-term targets and obligations that they have and are currently committing themselves to.

2 Robert G. Healy, Debora van Nijnatten and López-Vallejo, Environmental Policy in North America: Approaches, Capacity, and the Management of Transboundary Issues (University of Toronto Press 2014) 129. 3 Isabel Studer, ‘Supply and Demand for a North American Climate Regime’ in A. Neil Craik, Isabel Studer and Debora van Nijnatten (eds), Climate Change Policy in North America (University of Toronto Press 2013). 4 Mat Huff, ‘The Case for Continental: Examining the Potential for Climate Change Policy Integration in North America’ in Owen Temby and Peter Stoett (eds), Towards Continental Environmental Policy?: North American Transnational Networks and Governance (State University of New York Press 2017) 365.

Climate change mitigation law and policy in the U.S. and Canada  105

1

NATIONAL EMISSIONS PROFILES

Canadian climate mitigation policy is heavily influenced by a number of contextualizing factors that shape its profile as a high-emitting country. Economically, it is a major oil producing and exporting nation with a GHG intensive economy and a very high per capita carbon footprint. Politically, Canada is a federation, composed of provinces and federally administered territories, each with different geographies, resource bases, and climate profiles and interests. Furthermore, it is a parliamentary-style democracy whose federal government has alternated between two major parties with very different climate policy approaches (along with other smaller ones in opposition). These factors combined have ensured that climate change and climate mitigation policy is and always will be heavily politicized, and is destined to always play itself out in the form of constant negotiations between governments and political interests at and between different levels. This institutional complexity, on top of an economy that is heavily committed to fossil fuel extraction, has posed and will continue to pose considerable political challenges to any government in power, regardless of how climate-friendly their policy commitments may be. Canada’s international commitments are always going to be hobbled by its domestic politics in ways that can make nationwide coordination around external climate targets difficult and subject to compromise and horse-trading, and this will always hamper its ability to follow through on its international commitments. Thus, the political support for climate change regulation has waxed and waned with changes in government at both the federal and provincial level, as well as with changes in government in the U.S. Propositions, impositions, and considerations of mitigation efforts, whether through cap-and-trade programs or carbon tax schemes are always deeply politically risky for any government in power, leaving governments vulnerable to critique for either attempting too much too quickly, or not enough. In short, it is an ever-shifting, multilayered political space that has proven highly difficult for climate and emissions mitigation policy to navigate. Compared to the rest of the world, Canada is a high per capita emitter, in part because its geography and climate pose challenges to reducing its high demand for energy, especially for heating and transportation in and to its dispersed communities outside its urban cores, but mainly because it is an oil and gas producer.5 In 2018, per capita emissions were 19.7 tonnes of CO2 per person, although this is down from its peak of 22.6 tonnes in 2005.6 Canada is the sixth largest energy producer in the world, providing 4% of world energy supply, such that in 2019, 81% of its total GHG emissions came from its energy sector, while agriculture con-

Hirushie Karunathilake and others, ‘The Nexus of Climate Change and Increasing Demand for Energy: A Policy Deliberation from the Canadian Context’ in Hassan Qudrat-Ullah and Muhammad Asif (eds), Dynamics of Energy, Environment and Economy: A Sustainability Perspective (Springer Nature 2020) 273. 6 Environment and Climate Change Canada, ‘Canada’s Greenhouse Gas and Air Pollutant Emissions Projections 2020’ (2021) 8. It is worth noting, however, that these emissions statistics calculate only emissions generated during the production of fossil fuel energy supplies and do not include those produced by combustion by the end users of Canada’s fuel exports. This is standard practice as per IPCC Greenhouse Gas Inventory Reporting Instructions, whereby emissions are calculated by locating them at the place of combustion. However, if one considers Canada’s normative responsibility as including emissions resulting from both the production as well as the combustion of the same fuel it exports, then its responsibility for GHG emissions would be far larger than these statistics suggest. See: IPCC, Revised 1996 IPCC Guidelines for National Greenhouse Gas Inventories, vol. 2 (IPCC 1996) s. 1.2. 5

106  Research handbook on climate change mitigation law stituted 8.1%, industry 7.4%, and waste 3.8%. The oil and gas sector represents an enormous and growing part of the Canadian economy, with energy exports in 2019 representing fully 23% of all national exports,7 and providing just under 5% of total employment in the country.8 National Resources Canada reported that fossil fuel extraction and production in 2018 was 32% higher than it had been in 2005, reflecting a faster rate of growth than that of the rest of the world, whose energy production increased by 25% in the same period. At the same time, however, according to the International Energy Agency, Canada has a relatively clean electricity profile among its member countries due to the percentage of hydroelectric and nuclear sources, as well as its plans to phase out coal-fired electricity plants by 2030.9 Furthermore, while it is true that Canada’s rate of emissions has increased over the past two decades, the national economy has grown faster, amounting to a relative decrease in emissions intensity for the entire economy, down 37% since 1990, 23% since 2005, which the government attributes to fuel switching, energy efficiency advances, modernizing industrial processes, and structural changes in the economy.10 In contrast, an overview of U.S. emissions reveals a heavy national reliance on high-emitting fossil fuels for energy consumption rather than for its export economy. In the U.S., CO2 represents over 80% of total GHG emissions, by far the largest source of which (over 92%) is fossil fuel combustion, primarily from transportation and power generation.11 The transportation end use sector accounts for over 35% of CO2 emissions from fossil fuel combustion, indexed to vehicle miles traveled (VMT) and to the emissions generated per mile of travel. Despite improvements in average new vehicle fuel economy measured by a nearly 50% increase in VMT from 1990 to 2019, total transportation emissions nevertheless have continued to increase. Power generation contributes roughly one-third of U.S. CO2 emissions from fossil fuel combustion, indexed to energy sources used to generate electricity. Over time, coal-fired electricity generation has decreased in relation to other sources (falling from 54% in 1990 to 28% in 2019), while electricity generation from natural gas has increased (rising from 11% in 1990 to 34% in 2019). This ongoing shift from coal-fired to natural gas-fired plants has helped to reduce emissions from fossil fuel combustion in the electric power sector, given that the carbon intensity of natural gas is about 55% of that of coal. However, natural gas nonetheless generates significant emissions and in order to meet future targets its continued production and use will need to be curtailed as well, raising concerns about the current build-up of the country’s Natural Resources Canada, ‘Energy and the Economy’ (2019) https://​www​.nrcan​.gc​.ca/​science​ -data/​data​-analysis/​energy​-data​-analysis/​energy​-facts/​energy​-and​-economy/​20062​#L2 accessed April 16, 2021. 8 Ibid. 9 International Energy Agency, ‘Canada’ (International Energy Association 2021) https://​www​.iea​ .org/​countries/​canada accessed April 16, 2021. 10 Environment and Climate Change Canada, ‘National Inventory Report 1990–2019: Greenhouse Gas Sources and Sinks in Canada – The Canadian Government’s Submission to the UN Framework Convention on Climate Change’ (2021) 27. An alternative explanation is that this is simply correlated to Canada getting richer, where the same technological changes that have increased its wealth over the years are producing the de-intensification of energy use. Steve Sorrell, ‘Reducing Energy Demand: A Review of Issues, Challenges and Approaches’ (2015) 47 Renewable and Sustainable Energy Reviews 74, 75. 11 For this, a data and a comprehensive review of U.S. GHG emissions, see Environmental Protection Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks 1990–2019 ES-9 (April 2021), available from https://​www​.epa​.gov/​ghgemissions/​inventory​-us​-greenhouse​-gas​-emissions​-and​-sinks​-1990​-2019. 7

Climate change mitigation law and policy in the U.S. and Canada  107 natural gas infrastructure. Driving down emissions in the U.S. will require widespread electrification in tandem with a significant shift in electricity generation from fossil fuel sources to renewable energy sources. This presents a daunting task since in 2019 approximately 80% of the energy used in the U.S. was still produced through the combustion of fossil fuels.12

2

POLICY CONTEXTS

The central obstacle preventing the development of robust mitigation policy in both the U.S. and Canada has been a lack of consistent and broad political will, although the dynamics that shape political responses to climate change and the specific mechanisms through which it frustrates mitigation efforts differ. As noted above, because approximately 80% of energy used in the U.S. is produced from the combustion of fossil fuels, any interventions to reduce emissions from the transportation and energy sectors that increase the cost of gas and electricity will directly impact not only industrial and commercial sectors but also individuals. Mitigation interventions designed to reduce nationwide reliance upon, and ultimately replace, high-emitting, fossil fuel sources of energy threaten the core business of powerful interests, including coal and oil companies, which has and continues to occasion fierce opposition and significant hue and cry about their potential economic impacts. Meanwhile, disinformation campaigns funded and organized by fossil fuel interests have sowed doubt about the scientific fact, causes, and significance of climate change and the benefits of adopting mitigation policies. Together, these and other factors frustrate the development of political will, specifically support in the U.S. House of Representatives, U.S. Senate, and the President, to enact federal legislation to mitigate climate change. This general lack of political will at the federal level has historically made U.S. climate change mitigation policy a diverse and haphazard mix of mitigation approaches that are spread across numerous laws and domestic jurisdictions and that co-exist alongside other government actions that promote fossil fuel extraction and consumption. U.S. climate change mitigation policy can best be understood as the unfortunate product of intense political disputes over the threats posed by climate change and the prerogative to reduce emissions. The mitigation policies that are in place today were only achieved after hard-fought legal and political battles to overcome hostility, sometimes extreme, to federal efforts to mitigate climate change by important political and private actors. President Joseph R. Biden has recently announced a whole-of-government approach to federal climate change policy but, with uncertain existing legal authority and limited support for concerted action on climate change mitigation in the U.S. Congress, his ability to build a coherent national climate change mitigation framework will be constrained. Much of this constrained policy capacity is a structural feature of how executive power is counterbalanced by the legislature, most notably the U.S. Senate, in the U.S. federal system. It is worth recalling that the U.S. never ratified the Kyoto Protocol, largely because the U.S. Senate’s passage of the Byrd-Hagel Resolution in 1997 by a vote of ninety-five to zero, which effectively prevented the U.S. from entering into any climate change agreement that failed to require emission reductions from all countries or that ‘would result in serious harm to the economy of the United States’.13 A decade later Ibid., ES-9-ES-21, 3–9. S. Res. 98, 105th Congress (1997).

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108  Research handbook on climate change mitigation law in 2009 a lack of political will in the Senate again obstructed the development of a domestic climate change policy, and while that same year the U.S. House of Representatives passed the American Clean Energy and Security Act, which would have created a national cap-and-trade program for carbon in the U.S., the Senate declined to bring the legislation to a vote.14 The political and legislative battles fought over climate mitigation policy between the U.S. Presidency and the legislative branch are paralleled somewhat by similar battles fought in Canada, although there they play out between federal and provincial levels of government. Indeed, the federal nature of Canada’s constitutional framework (discussed later), in combination with the country’s immense geographic size and large resource deposits in regionally specific areas, has been determinative of the hesitant, contentious, and sometimes schizophrenic shape that Canadian climate mitigation policy has taken over the past few decades. The twists and turns of its evolution over time have reflected constant and imperfect economic and political balances struck between the perceived need to curb GHG emissions and acknowledging the importance, and regional specificity, of oil and gas as a significant part of the Canadian economy.15 Canadian climate mitigation policy is locked by the contours of this Sisyphean balancing act, which has played out within a very contentious political climate where Canada’s two main political parties have vied for power, making different commitments to emissions reductions, while sharing an interest in supporting its fossil fuel economy. The general climate policy conundrum facing any Canadian government is the strong correlation between increased wealth and increased energy consumption, which makes political promises of economic growth anathema to policy commitments to achieve reductions in energy demand and use.16 Policy goals to reduce consumption and provide cleaner energy sources conflict with the need for cheap and reliable energy supplies to support livelihoods and economic development.17 With a national economy dependent on the production of abundant, secure, and reliable fossil fuels, and with a generally high national standard of living based on high patterns of energy consumption, the prospect of divesting from fossil fuel use and reducing emissions without any accompanying economic impact is an inevitably difficult policy challenge. It is because of this that for Canada to meet its Paris Accord target of 80% reductions from 2005 levels by 2050 it will require very aggressive measures that come with considerable political risk.18 Thus, even though research demonstrates that there is little chance that Canada would reach its 2030 and 2050 international GHG reduction targets in the absence of carbon taxes or pricing mechanisms, or low-carbon fuel standardization,19 it is also true that there is no straight or easy path for political leaders to take to reduce national energy demand and emissions.20

The American Clean Energy and Security Act of 2009, HR 2454, 111th Congress (1st Sess. 2009). Angela V. Carter, ‘Policy Pathways to Carbon Entrenchment: Responses to the Climate Crisis in Canada’s Petro-Provinces’ (2018) 99 Studies in Political Economy 151. 16 Karunathilake and others (n. 5). 17 Sorrell (n. 10). 18 J. David Hughes, Canada’s Energy Outlook: Current Realities and Implications for a Carbon-Constrained Future (Canadian Centre for Policy Alternatives 2018). 19 William Hammond, Jonn Axsen and Erik Kjeang, ‘How to Slash Greenhouse Gas Emissions in the Freight Sector: Policy Insights from a Technology-Adoption Model of Canada’ (2017) 137 Energy Policy 111093, 11. 20 Karunathilake and others (n. 5) 274. 14 15

Climate change mitigation law and policy in the U.S. and Canada  109 Energy switching poses a problem for a country like Canada whose economy is so heavily reliant on fossil fuel production. Actually reducing energy demand is difficult in any complex economy, and to date higher prices have been proven to be the only mechanism that has consistently been able to decrease energy demand.21 While there is considerable agreement among economists that pricing carbon and other emissions would be the most efficient way to achieve demand reductions and emission mitigations, over the past three decades implementing any kind of nationwide carbon tax or cap-and-trade system has proven politically difficult in Canada because of a lack of a social consensus for it, and also because of the political difficulty of selling uncertain future gains or the promise of a healthier environment at the price of some very real financial costs in the present.22 Furthermore, the close integration of the Canadian economy with that of the U.S., both in terms of market share and competition, has also made it politically important for Canadian leaders to demonstrate continuity and synchronicity with U.S. environmental policy and regulation.23 While the voting public has increasingly expressed sympathy to climate policy over the years, and even though climate change is increasingly a factor in national elections, it is also true that the Canadian economy, demography, geography, and the nature of its energy infrastructure has made the country heavily reliant on production and consumption of fossil fuels for both revenue and employment. This dilemma is thrown into sharp relief whenever the price of oil plunges, as it did in 2020 during the global COVID-19 pandemic, economically paralyzing Canada’s oil-producing provinces, and raising the stakes for the federal government to commit itself to saving the sector. Surges in the price of oil, as seen in 2022, however, produce equally problematic dilemmas for the federal government by encouraging those same oil-producing provinces to now protect their suddenly lucrative revenue streams. Private sector actors in the Canadian oil and gas sector are heavily challenged by deciding how to deal with the major uncertainties not only of a changing climate and spasmodic oil prices, but also the shifting international and domestic political winds around fossil fuels, and an uncertain and changing regulatory environment.24 In such an environment, pathways to profit are not necessarily clear, and investors are faced with ‘a dilemma between on the one hand having the desire for a constant stream of dividend payments and on the other the need to put in place low-carbon strategies’.25

3

INTERNATIONAL COMMITMENTS

Policymakers in the U.S. and Canada who have been eager to promote economic growth and prosperity have been equally sensitive to this same conundrum, and as a result the tone of both U.S. and Canadian commitments to international efforts to mitigate climate change has waxed Sorrell (n. 10) 79. Karunathilake and others (n. 5) 288. 23 Steven Bernstein, ‘International Institutions and the Framing of Domestic Policies: The Kyoto Protocol and Canada’s Response to Climate Change’ (2002) 35 Policy Sciences 203, 217. 24 Christian Engau and Volker H. Hoffmann, ‘Effects of Regulatory Uncertainty on Corporate Strategy – An Analysis of Firms’ Responses to Uncertainty about Post-Kyoto Policy’ (2009) 12 Environmental Science & Policy 766. 25 Monica Cavalcanti Sa de Abreu and others, ‘From “Business as Usual” to Tackling Climate Change: Exploring Factors Affecting Low-Carbon Decision-Making in the Canadian Oil and Gas Sector’ (2021) 148 Energy Policy 111932, 8. 21 22

110  Research handbook on climate change mitigation law and waned in fits and starts since the 1990s. They have also been shaped by constraining factors in both countries’ federal frameworks and their fractious domestic political climates. Even when efforts have been made in international treaty negotiations to accommodate these structural constraints, the persistent lack of sustained political will to address climate change, especially in the U.S., has long undermined the international climate change treaty regime. The Paris Agreement was intentionally structured to combine mandatory procedural obligations and non-binding substantive obligations that would allow then-President Barack Obama to commit the U.S. to the Paris Agreement as an executive agreement that did not require Senate ratification. Jacob Werksman, a Lead Negotiator for the European Union during the Paris Agreement negotiations, commented that the core Paris Agreement structure of binding procedures and non-binding outcomes was designed to thread ‘[t]he needle of U.S. constitutional and political constraints’26 and that ‘a number of the compromises that weakened the Agreement's legal character were made, in part, to accommodate U.S. domestic politics’. 27 In spite of this, however, the U.S. later withdrew from the Paris Agreement under the administration of President Donald J. Trump. While this withdrawal from the Paris Agreement proved short-lived (the withdrawal became effective November 4, 2020, and the U.S. formally rejoined the Paris Agreement on February 19, 2021) it was nevertheless symptomatic of a significant rupture in domestic climate change policy. During his time in office, President Trump dismantled federal climate change policy and aggressively promoted fossil fuel extraction, undercutting the U.S.’s intended nationally determined contribution (INDC) pursuant to which the U.S. in 2015 had announced its intention to reduce emissions by 26–28% below 2005 levels by 2025, and to make best efforts to reduce emissions by 28%.28 Under President Biden, the U.S. quickly prepared and submitted an updated nationally determined contribution (NDC) setting a new target for the U.S. to achieve a 50–52% reduction from 2005 levels in economy-wide net greenhouse gas pollution by 2030.29 However, implementation of mitigation measures to achieve that target will be tempered by the lack of widespread political support for federal climate change legislation, just as the ambition of the original U.S. INDC reflected a calculation about how much mitigation would be feasible within the terms of then-existing statutory authority. This general lack of political will has also ensured that the present legal and policy landscape of climate change mitigation is haphazard and uneven, having developed not through thoughtful design but through the happenstance of where existing law permits plausible claims to legal authority to be made to undertake mitigation efforts and where pockets of political will to pass new mitigation law exist at the subnational or federal level. Some new federal climate change mitigation measures were included in the 2020 year-end omnibus spending bill, including a requirement to phase down production and consumption of HFCs by 85% by 2036, along with funding to support energy innovation, extensions of tax credits for renewable Jacob Werksman, ‘Remarks on the International Legal Character of the Paris Agreement’ (2019) 34 Maryland Journal of International Law 343, 353. 27 Ibid., 344–45. 28 United States, ‘Intended Nationally Determined Contribution’ (2015), http://​www4​.unfccc​.int/​ submissions/​INDC/​Published​%20Documents/​United​%20States​%C20of​%20America/​1/​U​.S​.​%20Cover​ %C20Note​%20INDC %20and%20Accompanying%20Information.pdf. 29 United States, ‘Intended Nationally Determined Contribution’ (2021), https://​www4​.unfccc​.int/​ sites/​ndcstaging/​PublishedDocuments/​United​%20States​%20of​%20America​%20First/​United​%20States​ %20NDC​%20April​%2021​%202021​%20Final​.pdf. 26

Climate change mitigation law and policy in the U.S. and Canada  111 energy, and support for carbon capture technology.30 The U.S. may ultimately adopt a comprehensive climate framework law, or perhaps its NDCs under the Paris Agreement will evolve to serve a similar function. But, for now, U.S. climate mitigation law and policy are still highly fragmented and continue to reflect the absence of broad and enduring political will to address climate change. The nature of Canada’s commitment to international climate change treaty regimes has also been haphazard and contradictory over the years because of structural and domestic political and economic factors. Ever since Canada signed onto the UNFCCC in 1992,31 federal environment ministers have had to strike delicate political balances in getting both provinces and the private sector to buy into emissions reduction schemes. Any interest governments have had in participating in global efforts to fight climate change since then have been counterbalanced by domestic political prerogatives to support Canada’s large oil and gas economy. Propositions to impose more stringent regulation on the sector or nationwide emissions mitigation measures have been repeatedly resisted by powerful political and commercial forces. As a result, in spite of the targets it has committed to internationally, total carbon emissions have increased rather than decreased over the years, from approximately 600 Mt in 1990 to 730 Mt in 2019, peaking in 2007 at 752 Mt.32 In the 1990s and into the early 2000s, the Liberal government under Jean Chrétien committed Canada to ambitious international environmental agreements that encountered resistance from domestic interests in the years that followed as their potential economic consequences became more politically contentious. Whatever multilateral idealism Canada took to Kyoto in 1997 was combined with a need for some economic practicality. As such, Canadian negotiators were instructed by Ottawa to stay close to whatever the U.S. position was, which then meant accepting demanding reduction targets of 6% reductions below 1990 levels by 2010 as the price for convincing the EU to agree to flexible market-based regulatory emissions reduction mechanisms.33 Since Kyoto, however, Canadian federal governments have been unable to follow through with domestic policies to achieve reduction goals in the face of resistance from high-emitting provinces and powerful private sector lobby groups.34 These interests were placated by assurances from Ottawa that any national climate plan would be developed together with the provinces, but Kyoto was followed by nearly two decades of half-hearted and largely ineffective efforts to reduce emissions through voluntary measures, even though public support for global warming-focused policymaking at the time was relatively high.35 After being elected in 2006, the first few years of the minority Conservative party governments under Steven Harper showed some enthusiasm for addressing climate change, even

30 Consolidated Appropriations Act, 2021, Pub L No. 116-260, 134 Stat 1182 (codified in scattered sections of USC). 31 United Nations Framework Convention on Climate Change, FCCC/INFORMAL/84 GE.05-62220 (E) 200705. 32 Environment and Climate Change Canada, ‘Greenhouse Gas Emissions: Canadian Environmental Sustainability Indicators’ (2021) 5. 33 Kathryn Harrison, ‘The Struggle of Ideas and Self-Interest in Canadian Climate Policy’ in Kathryn Harrison and Lisa McIntosh Sundstrom (eds), Global Commons, Domestic Decisions: The Comparative Politics of Climate Change (MIT Press 2010). 34 Canadian Manufacturers and Exporters, Pain Without Gain: Canada and the Kyoto Protocol (2001). 35 Harrison (n. 33).

112  Research handbook on climate change mitigation law making it a theme of the 2007 federal budget,36 and pledging to work with provinces and the United States to implement a GHG cap-and-trade system in its 2008 ‘Turning the Corner’ plan, which never materialized. These ambitions were later downscaled to efforts to harmonize regulations with those of the United States on a sector-by-sector basis, and then virtually evaporated when the disastrous ‘Green Shift’ electoral campaign by the Liberal party under Stéphane Dion in 2008 demonstrated how lukewarm the Canadian electorate was to nationwide carbon tax schemes during the ongoing global financial crisis.37 As a result, the sum of its actions amounted to little more than the introduction of new fuel economy regulations to match those of the Obama administration, and signing a few non-binding international agreements, like the Copenhagen Accord and the Declaration on Climate Change and Clean Energy with the U.S. and Mexico in 2009.38 After securing a majority government win in 2011, an emboldened Harper government became increasingly vocal in its opposition to carbon taxes and cap-and-trade schemes, passed no new regulations to curb the emissions of the oil and gas sector during its tenure,39 and ultimately withdrew Canada entirely from Kyoto that same year. This policy dynamic shifted with the 2015 national election, when the Liberals under Justin Trudeau won a majority with campaign pledges to create a national price on carbon and phase out gas and oil subsidies. Once elected, one of its first tasks was to sign the Paris Agreement, committing Canada to lowering total emissions by 30% by 2050. The following year, on December 9, 2016, the government announced its Pan-Canadian Framework on Clean Growth and Climate Change as its plan to ‘meet its emission reduction targets and grow the economy’ by pricing carbon across the country by 2018.40 The Framework spoke to a number of emission reduction strategies for a wide range of emitters, from vehicles and buildings, to heavy industries, but because many of the sectors it covered lay within provincial jurisdiction it placed considerable emphasis on collaboration between the federal and provincial governments. Its core component, however, was to oblige provinces to have a carbon plan in place by 2018 that would meet or surpass a federally mandated single carbon price backstop.41 Following provincial negotiations, this latter mechanism was formalized in the Greenhouse Gas Pollution Pricing Act (‘GGPPA’)42 which set an initial benchmark price of Can$10 per ton of CO2 in 2018, to rise incrementally to Can$50 by 2022.43 This plan allowed provinces to choose how they could achieve this price equivalency, and ensured that any revenues produced would be revenue-neutral and return payments to individual taxpayers via a system of tax credits. This tax refund construction is intended to allay concerns about the impact of higher fuel prices on consumers and increased energy poverty for disadvantaged citizens and

Department of Finance Canada, ‘Budget 2007: A Stronger, Safer, Better Canada’ (May 19, 2007) https://​www​.budget​.gc​.ca/​2007/​news​-nouvelles/​news​-nouvelles​-eng​.html accessed May 1, 2021. 37 Kathryn Harrison, ‘A Tale of Two Taxes: The Fate of Environmental Tax Reform in Canada’ (2012) 29 Review of Policy Research 383. 38 White House Office of the Press Secretary, ‘North American Leaders’ Declaration on Climate Change and Clean Energy’ (2009). 39 Aaron Wherry, ‘Policy Alert’ Maclean’s (April 6, 2011). 40 Environment and Climate Change Canada, Pan-Canadian Framework on Clean Growth and Climate Change: Canada’s Plan to Address Climate Change and Grow the Economy (Environment and Climate Change Canada 2016). 41 Government of Canada, ‘Pan-Canadian Approach to Pricing Carbon Pollution’ (2016) 49. 42 Greenhouse Gas Pollution Pricing Act (S.C. 2018, c. 12, s. 186). 43 Government of Canada, ‘Pan-Canadian Approach to Pricing Carbon Pollution’ (n. 41). 36

Climate change mitigation law and policy in the U.S. and Canada  113 communities, which the government has said will offset resulting higher energy costs for approximately 70% of citizens. Provincial opposition to the plan and the subsequent act was strongest in oil producing and politically conservative provinces, like Alberta and Saskatchewan, later joined by Ontario under the Premiership of Doug Ford. Opposition intensified when the federal carbon tax was first imposed on Saskatchewan, Ontario, Manitoba and New Brunswick in April 2019. In response, a number of provinces turned to the courts, arguing it amounted to an unconstitutional imposition of federal powers over provincial autonomy. This was accompanied by public campaigns to portray the mechanism as ineffective, economically damaging, and as a ‘tax grab’.44 Such arguments countered the findings of the independent Parliamentary Budget Office, which in 2016 calculated that while it expected the Pan-Canadian Framework to reduce GDP by 0.35%, that such a loss would be considerably outweighed by the greater cost of doing nothing.45 Such arguments countered the findings of the independent Parliamentary Budget Office, which in 2016 calculated that while it expected the Pan-Canadian Framework to reduce GDP by 0.35%, that such a loss would be considerably outweighed by the greater cost of doing nothing. It is likely that because of this kind of subnational political resistance the federal government in 2021 took a step to anchor its emissions reduction policy to its external international commitments and scientific expertise. This took the form of the Canadian Net-Zero Emissions Accountability Act (CNZEAA), which incorporates federal emission reduction planning into law and links it to Canada’s nationally determined contribution under the Paris Agreement.46 It also obliges the government to set five-year targets leading to eventual net-zero emissions by 2050 in line with its international commitments and based on the best scientific information available, and requires emissions targets for every five years between 2030 and 2050, emissions reduction plans and periodic progress reports with updates on each emissions reduction target and the implementation of federal measures, along with sectoral strategies for achieving them.47 Given the political and legal complexities of the federal government’s position, however, the Act notably only commits the federal government to setting national targets, and does not declare any specific requirements for provinces, nor articulate what exactly such targets or their transition plans should look like. If the Pan-Canadian Framework and the new CNZEAA give the Trudeau government some domestic and international credibility for taking climate change seriously, this has been offset by its simultaneous support of Canada’s emissions-heavy oil and gas production sector. This in part is an acknowledgement of the importance of the sector to the national economy, but it was also the price it paid to negotiate support from the provinces, in particular Alberta,

44 For example, see: Ashley Joannou, ‘“Another Attack on Alberta’s Economy”: Nixon Criticizes Ottawa’s Plan to Raise Carbon Tax to $170 a Tonne by 2030’ Edmonton Journal (Edmonton, December 12, 2020); also James Munson, ‘Canada Backs Off Clean Fuel Rule After Industry Voices Concerns’ Bloomberg (26 July, 2018). 45 Office of the Parliamentary Budget Officer, ‘Canada’s Greenhouse Gas Emissions: Developments, Prospects and Reductions’ (2016). 46 Canadian Net-Zero Emissions Accountability Act SC 2021, c. 22, ss 4, 7. 47 SC 2021, c. 22, ss 7, 9, 10, 14, 16.

114  Research handbook on climate change mitigation law for the Pan-Canadian Framework in 2016.48 The scale of its commitment has been most on display with its approval of three new pipelines, and its extraordinary purchase of one of them, the Trans Mountain pipeline, for Can$4.5 billion when Kinder Morgan announced that it was pulling out of the project because of persistent political and litigious uncertainty surrounding its licensing and construction.49 Furthermore, the Pan-Canadian Framework, while impressive on its face for introducing a carbon pricing mechanism, is remarkably silent when it comes to reducing the intensity of the oil and gas sector’s predominance in the national economy. In short, the climate record of the Trudeau government is somewhat contradictory. While the Trudeau government has taken pains to assert its commitment to its Paris targets, and pledged a 40–45% reduction below 2025 levels by 2030 at President Biden’s online climate conference on April 22–23, 2021,50 its continued support of the oil and gas sector begs difficult questions about its capacity to meet them.51

4

CONSTITUTIONAL AND FEDERAL LEGAL FRAMEWORKS

Any discussion about climate mitigation as national policy frameworks in both the U.S. and Canada requires careful consideration of their constitutional frameworks. As federal democracies, political power in both countries is divided and shared in particular, but different, ways that have strongly affected the political and legislative shapes and contents that their respective policy dynamics have taken over the past few decades. In the case of Canada, it would be no overstatement to argue that the country’s federal structure is a key, if not the main key determinant of and obstacle to crafting any countrywide climate mitigation policy. As the Supreme Court recently ruled, Canadian federalism is an inherently multifaceted balancing act whose objective is to ‘reconcile diversity with unity, promote democratic participation by reserving meaningful powers to the local or regional level and foster cooperation between Parliament and the provincial legislatures for the common good’.52 Given its multilayered federal and legal framework, the regionalized political and economic sensitivities involved, and the lack of political and electoral consensus about how best to reduce emissions, implementing any countrywide climate mitigation policy in Canada is inevitably a daunting task for any government of any ideological stripe. From the 1990s to the mid 2010s the general government response was to hedge Canada’s international commitments with relatively little domestic regulatory innovation beyond matching those of the U.S. This has changed from 2015 onwards as the Trudeau government has adopted a comparatively active and strategic form of federal

48 Kathryn Harrison and Sophie Harrison, ‘At a Crossroads: The Future of Canada’s Petro-Economy in a Carbon-Constrained World’ in Philippe Tortell, Margot Young and Peter Nemetz (eds), Reflections of Canada: Illuminating Our Opportunities and Challenges at 150+ Years (Peter Wall Institute for Advanced Studies 2017). 49 Kathleen Harris, ‘Liberals to Buy Trans Mountain Pipeline to Ensure Expansion Is Built’ CBC News (Ottawa May 29, 2018). 50 John Paul Tasker and Aaron Wherry, ‘Trudeau Pledges to Slash Greenhouse Gas Emissions by at Least 40% by 2030’ CBC News (April 22, 2021). 51 Kathryn Harrison, ‘Environmental Policy’ in Paul J. Quirk (ed.), The United States and Canada: How Two Democracies Differ and Why It Matters (Oxford University Press 2019). 52 References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para. 48; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 43.

Climate change mitigation law and policy in the U.S. and Canada  115 policymaking that has differed from what came before. Nevertheless, like its predecessors, it too has had to contend with the challenging political and legal intricacies of Canada’s federal constitutional order when designing how to do this. Canadian constitutional law is not explicit about what level of government has jurisdiction over the regulation of GHG emissions. Under s. 91 of the Constitution Act of 1867, the provincial and federal legislatures are considered equal branches of government. The powers of the federal government are limited to matters of national concern in pursuit of ‘peace, order and good government’ and to preserving national unity, while provinces are recognized as being autonomous within their respective jurisdictions.53 Section 92 confers specific jurisdiction to provinces over a number of matters, the most relevant being ‘property and civil rights’ under s. 92(13); non-renewable natural resources under s. 92(A); and the residual jurisdiction provided in s. 92(16) for matters of ‘a merely local or private Nature in the Province’. Taken together, these capture much of the trade, industry, and resource extraction that are responsible for much of Canada’s GHG emissions. Although it is the federal government in Ottawa that commits Canada to international emissions reduction targets, it is because of this constitutional arrangement that the primary regulatory responsibility for the activities that produce GHG emissions, especially Canada’s sizeable energy sector, lies at sub-federal levels. While the federal government has significant taxation powers, its uses of tax revenues to implement countrywide policies to produce nationwide effects require considerable cooperation with the provinces. This is especially the case in areas like the environment that intersect with so many differently delineated jurisdictional responsibilities. The policy effect of this constitutional arrangement is that while the climate changing impacts of emissions may be felt at the national and international levels, both the benefits of producing them as well as the costs of mitigating them are to be borne by individual provinces, with whom the federal government is required to coordinate. Canadian provinces are generally protective of their control over the use and exploitation of natural resources within their borders. This structural feature of Canadian federalism has made collective action on climate change politically difficult and contentious, and explains much of the relative domestic policy inaction at the federal level over the past 30 years. It is also the reason why it was necessary for the Greenhouse Gas Pollution Pricing Act to organize cross-provincial emissions reductions by setting a national minimum carbon ‘backstop’ price, and reserving some autonomy for the provinces to choose how to match or surpass it, rather than simply imposing a single national regulatory mechanism. In this way, the Act represents a particular balance struck between the exercise of central federal authority with the preservation of provincial autonomy, a balance whose constitutional validity was recently affirmed by the Supreme Court after years of litigation.54 The U.S. constitutional structure, in contrast to that of Canada, gives the federal government the power to directly mandate emissions reductions and/or limits on fossil fuel extraction throughout the U.S. Although this vesting of authority in the federal government avoids at least in theory some of the complexities occasioned by requirements for power sharing between the

Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 22. See also Andrew Leach and Eric M. Adams, ‘Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Gas Emissions Legislation on Provincial Jurisdiction’ (2020) 29 Constitutional Forum 1. 54 References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11. 53

116  Research handbook on climate change mitigation law federal and provincial governments in Canada, it nevertheless has not facilitated the development of robust and unified mitigation policy. This is in part because the constitutional need to obtain both congressional and presidential support for the adoption of new legislation has thus far proved elusive. Presidential administrations supportive of strong mitigation policy have failed to secure congressional approval for strong new climate laws and presidential administrations opposed to strong mitigation policy have blocked such laws. The federal government has thus been unable to exercise its constitutional authority to compel climate change mitigation through the enactment of new laws aimed directly at mitigation of climate change. As a result, most federal climate change mitigation policy in the U.S., and nearly all existing federal controls on GHG emissions, are authorized under laws of general application, or laws that, while not specifically adopted to address climate change, can be applied for that purpose. Stymied by a lack of political will to pass a comprehensive federal climate change mitigation law, climate advocates and presidential administrations supportive of climate change mitigation have turned to existing laws of general application for authority to require or encourage mitigation. Doing so has generated numerous ongoing legal disputes about whether those laws do, in fact, provide for such authority and, if so, whether and how it can or must be exercised. We describe the most significant of these disputes below in section 5.1. Because they typically center around how federal agencies interpret such laws, the shape that legal disputes take tends to depend largely upon the climate policy preferences of the relevant presidential administration. Under administrations hostile to federal climate change mitigation, federal agencies typically interpret statutes not to provide authority to mitigate climate change, interpret that authority narrowly, or simply decline to exercise statutory authority. Climate advocates then challenge those decisions. Under administrations that champion federal climate change mitigation, on the other hand, federal agencies typically interpret statutes to authorize or require strong climate change mitigation and accordingly promulgate robust mitigation policy. This is then challenged by those who are opposed to federal climate change mitigation (often fossil fuel interests or states opposed to federal climate change mitigation), and who claim that federal agencies have exceeded their statutory authority. Perhaps the best example of this dynamic, described in detail in section 5.1, is the contrast between the Obama-era EPA’s invocation of authority under the Clean Air Act to impose robust mitigation requirements on existing fossil-fuel power plants through the Clean Power Plan and the Trump-era EPA’s effort to replace the Clean Power Plan with the Affordable Clean Energy rule, which interpreted the agency’s authority to require mitigation narrowly and would have required little emission reduction. This has resulted in the courts playing the key role of determining the scope of government authority through their decisions on whether any given agency’s mitigation policy (or lack thereof) exceeds the authority granted by a statute of general application or fails to satisfy its minimum requirements. As such, litigation outcomes over time have become a central mechanism by which the scope of federal authority to engage in climate change mitigation under statutes of general application has been defined, and this has shaped the regulatory landscape accordingly. Distinct from litigation surrounding the effort to apply existing statutory authority to climate change, climate advocates in the U.S. are also actively litigating two types of constitutional and/or common law actions with the potential to shape U.S. climate change policy. The first type has been brought against state or federal governments and is grounded in the public trust doctrine and sometimes constitutional law, positing that these sources of law impose a duty on government to take stronger action to mitigate climate change and asking courts to order gov-

Climate change mitigation law and policy in the U.S. and Canada  117 ernment to adopt stronger mitigation measures.55 The second type has been brought directly against large emitters or fossil fuel interests and is grounded in common law tort (primarily nuisance) and sometimes product liability law, seeking injunctive relief (in the form of a court order to reduce or stop conduct giving rise to emissions) against and/or damages to compensate for harms caused by climate change directly from defendant corporations.56 To date, no case of either type has succeeded or even been decided on the merits as courts have dismissed every case that has been finally decided under various threshold doctrines relating to justiciability, including standing, the political question doctrine, and pre-emption or displacement. Numerous cases, particularly of the second type, are still being actively litigated, however, so a successful outcome for the plaintiffs remains possible. Nevertheless, these kinds of cases have influenced U.S. climate change mitigation policy. At the very least, they have helped to focus attention on the current harms and costs of climate change, the complicity of government in exacerbating climate change (for example, by allowing for the continued extraction of fossil fuels from federal lands and by failing to act responsibly to mitigate it by allowing continued emissions from private actors), and the role of myriad corporations in knowingly exacerbating these harms while seeking to sow doubt about climate change science to avoid being regulated. Some speculate that climate change litigation may also prompt defendant companies to support federal mitigation legislation, provided that it pre-empts lawsuits against them. Furthermore, in the event that plaintiffs would prevail in one of these cases, the outcome would significantly impact U.S. climate change either directly, in the form of a judicially imposed requirement that the government adopt or strengthen mitigation policy, or indirectly, by changing the position of major fossil fuel interests that have historically resisted the development of strong climate change mitigation policy. The legal questions raised by these cases are rich and interesting, and climate change litigation is explored in greater depth in Chapter 12. 4.1

U.S. Federal Legislative Framework

The federal government in the United States clearly possesses the legal authority to compel climate change mitigation through the adoption of federal legislation. However, as explained above, the United States has not developed the political will required to adopt new federal laws specifically addressed to climate change mitigation. As such, federal authority to engage in climate change mitigation resides, to the extent it exists, primarily within statutes of general application—statutes already in force the relevant provisions of which do not speak directly to climate change mitigation. Whether and to what extent these statutes of general application require or permit the implementation of federal mitigation policy has thus largely defined the scope of federal mitigation requirements. This section identifies the relevant provisions of key federal statutes of general application that authorize mitigation policy (the CAA, NEPA, and federal securities laws) and explains how those statutes have been interpreted by agencies and courts to form current federal mitigation policy.

For example, see: Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020). For example, see: City of New York v. Chevron Corp., No. 18-2188, 2021 WL 1216541 (2d Cir. April 1, 2021). 55 56

118  Research handbook on climate change mitigation law A The Clean Air Act The only limits that the federal government places directly on GHG emissions are imposed under the Clean Air Act (CAA). At present, these limits are sector-specific and applied almost exclusively to new or modified sources of GHGs. Core emission limits under the CAA include restrictions requiring motor vehicles to meet fuel efficiency standards promulgated under section 202 of the CAA.57 Some major new or modified stationary sources that are already required to obtain a permit by virtue of their emission of conventional air pollutants must use ‘best available control technology’ (BACT) to limit their GHG emissions under the Prevention of Significant Deterioration (PSD) program.58 Some categories of major new or modified stationary sources, including new, modified, and reconstructed electric utility generating units like fossil fuel-fired power plants, must comply with ‘new source performance standards’ that reflect the best system of emission reduction under section 111(b).59 Furthermore, some existing stationary sources will likely be required under section 111(d) to reduce their GHG emissions, although whether the CAA provides authority to require such emission reductions and the scope of that authority remains uncertain. Current controls on emissions under the CAA are both significant60 and insufficient on their own to reduce U.S. emissions to levels necessary for meaningful progress on climate mitigation. There are ways to increase the number of sources of emissions subject to controls under the CAA and to increase the stringency of those controls, although it is unclear the extent to which expanded regulation under the CAA can achieve deep emission reductions within relevant time frames. Some sources of emissions, such as small sources or stationary sources that emit only GHGs, may not be covered by the CAA, or at least are not covered under the provisions of the CAA that have been successfully invoked to this point to address GHG emissions. Even when a source is subject to regulation under the Act, the substantive requirements of the CAA limit the stringency of the controls that can be applied. With respect to the PSD program, for example, permitting authorities setting BACT must take ‘into account energy, environmental, and economic impacts and other costs’ and determine that the standard ‘is achievable for such facility through application of production processes and available methods, systems, and techniques’.61 Furthermore, the processes required to develop and implement GHG emission controls under the CAA, which typically require lengthy rulemakings that are subject to judicial review, are slow and labor-intensive. Despite these limitations, given the absence of political will to adopt federal climate change legislation, it seems likely that expanding the regulation of GHGs under the CAA will remain an important focus for U.S. climate mitigation policy. Significant regulatory proceedings and legal decisions have produced current controls on GHGs under the CAA, and they provide a basis for evaluating the prospects of expanded regulation of GHGs under the CAA going forward.

42 USCA § 7521 (West 2021). 42 USCA § 7475 (West 2021). 59 42 USCA § 7411 (West 2021). 60 The transportation sector, for example, constitutes roughly one-third of U.S. GHG emissions and improved fuel efficiency requirements are already thought to have substantially reduced emissions. 61 42 USCA § 7479 (West 2021). 57 58

Climate change mitigation law and policy in the U.S. and Canada  119 B Tailpipe emission standards Section 202 of the CAA requires the Administrator of the Environmental Protection Agency (EPA) to set ‘standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare’.62 Although the term ‘air pollutant’ is defined very broadly in the CAA,63 in 2003 the EPA, acting at the direction of President George W. Bush, who opposed federal climate change mitigation, denied a petition to initiate rulemaking to set standards for GHG emissions from motor vehicles in part on the grounds that it did not possess authority to regulate GHGs under the CAA because they cannot be considered ‘air pollutants’ under the statute. Had this interpretation of the statute prevailed, it would have forestalled the regulation of GHGs under the CAA, placing them outside the statute’s reach. Less appreciated, but of perhaps equal import, the EPA and others opposed to the regulation of GHGs under the CAA characterized climate change and GHG emissions as being so unusual in scope and mechanism that they should elude regulation under the CAA’s general provisions. By extension, these arguments suggested that courts interpreting statutes of general application should adopt a kind of climate change exceptionalism to require something approaching express mention in legislation directed specifically to climate change to find authority for government action on climate change mitigation. Had this view prevailed, it could have forestalled the application of not just the CAA but many other federal statutes of general application to the myriad challenges posted by climate change. The Supreme Court, however, has cleared a path for the application of statutes of general application to climate change mitigation. In 2007, four years after the petition was filed, the Supreme Court confirmed the potential for GHGs to be regulated under the CAA, holding in Massachusetts v. EPA that GHGs constitute air pollutants, at least for purposes of section 202.64 The decision confirmed that statutes of general application can readily be interpreted to reach climate change, which opened the door to regulation of GHG emissions under section 202 and other provisions of the CAA. Furthermore, by finding that Massachusetts possessed standing to press the statutory claim, the Court indicated that climate change advocates seeking to require agencies to use existing statutory authority could seek the help of courts to do so. Commentators have heralded Massachusetts v. EPA as a significant victory for climate change mitigation, but it is important to note that the path to this decision was not easy and its outcome was far from certain. The D.C. Circuit Court of Appeals had, after all, upheld the EPA’s denial of the petition for rulemaking, making the possibility of obtaining review by the Supreme Court of that denial remote, and the ultimately successful outcome before the Supreme Court rested on a slim five to four majority on a narrow question of administrative law.65 Four years elapsed between the filing of the petition and the Supreme Court’s decision, and it was only six years after its filing that the EPA promulgated GHG tailpipe emissions 42 USCA § 7521(a)(1) (West 2021). 42 USCA § 7602(g) (West 2021) (‘The term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air.’). 64 Massachusetts v. E.P.A., 549 US 497, 127 S. Ct. 1438, 167 L Ed 2d 248 (2007). 65 For a thorough account of the case that illustrates its uncertain outcome, see Richard J. Lazarus, The Rule of Five: Making Climate History at the Supreme Court (Harvard University Press 2020). 62 63

120  Research handbook on climate change mitigation law under section 202.66 Thus, while the decision did allow for the establishment of tailpipe emissions for GHGs and did open the door to federal regulation of GHGs under other provisions of the CAA, it also effectively blocked efforts to invoke the federal common law directly against large emitters of GHGs to require them to pay damages or reduce their emissions.67 Although Massachusetts v. EPA allowed some climate change mitigation to move forward under existing statutory authority without requiring the adoption of new climate change legislation, the decision did not overcome the general drag on policy created by the lack of political will for federal climate change mitigation.68 For even existing statutes to be implemented requires in significant measure the political will of the sitting president. Pitched disputes continue about the extent to which other provisions of the CAA apply to GHGs and, in terms of the application of section 202, Massachusetts v. EPA simply shifted the legal and policy battleground from questions about whether the EPA had sufficient authority to questions about the stringency of the limits that it could impose when exercising that authority. Under President Obama, the EPA acted pursuant to its authority under section 202 in conjunction with the National Highway Traffic Safety Administration and with authority under the Energy Policy and Conservation Act to improve fuel economy and reduce the GHG emissions of light-duty vehicles, setting standards for model years between 2012–2025, with the years 2017–2025 being a new national standard.69 The CAA contemplated that California could be granted a waiver to set its own standards independent of the statute that other states could elect to adopt.70 However, California ultimately equated compliance with the mitigation-friendly Obama-era standards as compliance with California’s own GHG emission standards. Under President Trump, the EPA sought to significantly weaken fuel efficiency requirements. It revisited the Obama-era rulemaking, which would have required approximately a 5% per year increase in fuel efficiency through 2026 (for a fleet average of roughly 46.6 miles per gallon), and relaxed the standards to instead require only approximately 1.5% annual increases in efficiency through 2026 (a fleet average of roughly 40.5 miles per gallon).71 It also sought to make these less stringent requirements mandatory for all states by revoking the waiver of pre-emption previously granted for the GHG and Zero-Emission Vehicle programs under California’s Advanced Clean Car Program, thereby preventing California (and, by extension, any other state) from adopting more aggressive fuel economy standards.72 With the election of another pro-mitigation president, President Biden, it seems likely that section 202 will once

Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed. Reg. 25324 (May 7, 2010). 67 Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 420 (2011). 68 When the decision was issued, the EPA remained opposed to federal climate change mitigation under the CAA and declined to take any action for well over a year, causing the frustrated petitioners to file a Petition for Writ of Mandamus to Compel Compliance with Mandate in the Supreme Court. It was not until President Obama, who championed federal climate change mitigation, was elected in 2008 that the EPA moved forward with the regulation of GHGs under section 202. 69 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards, 77 Fed. Reg. 62623 (Oct. 15, 2012). 70 42 USCA § 7543 (West 2021). 71 The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks, 85 Fed. Reg. 24174 (Apr. 30, 2020). 72 The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, 84 Fed. Reg. 51310 (Sept. 27, 2019). 66

Climate change mitigation law and policy in the U.S. and Canada  121 again be oriented toward more aggressive climate change mitigation.73 The change in fuel efficiency requirements between presidential administrations provides evidence, however, of the extent to which even once statutory authority is located for climate change mitigation, a lack of political will at the executive level can inhibit statutory implementation and mitigation progress. C Prevention of significant deterioration program The imposition of technology-based emission limits on new or modified major stationary sources under the CAA’s PSD program likewise required lengthy contestation of questions of statutory authority and regulatory standard setting. Under the PSD program, major emitting facilities must use BACT for each pollutant subject to regulation under the CAA and emitted from the facility. The CAA defines major emitting facilities to include sources in specified categories with the potential to emit 100 tons per year (tpy) or more of an air pollutant or any source with the potential to emit 250 tpy of an air pollutant.74 Under President Obama, the EPA, inclined to exercise its authority under the CAA to mitigate climate change, promulgated regulations imposing emission limits for GHGs under these statutory provisions. Industry and others opposed to federal climate change mitigation challenged the regulations and the Supreme Court ultimately granted certiorari and resolved questions relating to the scope of the EPA’s statutory authority in Utility Air Regulatory Group v. EPA (hereinafter UARG decision).75 With respect to whether the CAA authorizes the EPA to impose emission limits for GHGs on these sources, the Supreme Court held that the statute authorized the EPA to apply emission limits only to facilities already required, by virtue of their emission of other pollutants, to obtain a permit under the PSD program (‘anyway’ sources). A source could not be considered a major emitting facility subject to the strictures of the PSD program solely because of its GHG emissions because the term air pollutant in the relevant statutory provisions defining a major emitting source could not be interpreted to include GHGs. The Supreme Court reasoned that doing so would have caused numerous small sources to become subject to the PSD program (and CAA regulation) for the first time, imposing onerous regulatory requirements on numerous entities Congress did not contemplate would be subject to CAA controls and overwhelming the EPA’s capacity to administer the program.76 However, if a source was already subject to the PSD program by virtue of its emission of other, non-GHG air pollutants, the Supreme Court held that the EPA did have the authority to regulate emissions from these ‘anyway’ sources. The Supreme Court reasoned that the relevant statutory text was clear and that applying PSD requirements to those already-regulated facilities was consistent with

73 In December 2021, the EPA finalized a new rule once again imposing stringent tailpipe emission standards for passenger cars and light trucks. Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards, 86 FR 74434 (December 30, 2021) (to be codified at 40 CFR Parts 86, 600). It also rescinded the Trump administration’s withdrawal of the EPA’s authority to issue a waiver. California State Motor Vehicle Pollution Control Standards; Advanced Clean Car Program; Reconsideration of a Previous Withdrawal of a Waiver of Preemption; Notice of Decision, 87 Fed. Reg. 14332 (March 14, 2022). 74 42 USCA § 7479 (West 2021). 75 Util. Air Regul. Grp. v. E.P.A., 573 US 302 (2014). 76 Ibid., 321–23.

122  Research handbook on climate change mitigation law Congress’s intent to impose controls on large, industrial sources and would not pose undue administrative burdens on the EPA.77 The Supreme Court’s interpretation of the scope of EPA authority to apply the PSD program to GHG emissions was narrower than that proposed by the EPA, but the decision was considered a practical victory for the EPA because the ‘anyway’ sources covered by the statute after the Supreme Court’s decision encompassed 83% of U.S. GHG emissions from stationary sources and the stationary sources that the Supreme Court held that the EPA could not regulate encompassed only 3% of U.S. GHG emissions from stationary sources. The UARG decision may, however, have troubling longer-term implications for the EPA’s regulation of GHGs under the CAA. The decision signals Supreme Court resistance to interpreting the CAA to apply to non-traditional (non-industrial, smaller) stationary sources of GHGs, thereby limiting the coverage of the statute.78 Notably, although the analysis above focused on the PSD program, the UARG decision also held that a source could not be considered a major source required to obtain a Title V operating permit—which imposes no substantive standards but does contain procedural requirements—simply by virtue of its emission of GHGs.79 The decision also suggests that, while the CAA can be interpreted to apply to GHG emissions and climate change in some contexts, the Supreme Court is not inclined to accept aggressive interpretations of the CAA vis-à-vis climate change that, in the view of the Court, would result in a ‘dramatic expansion of agency authority’.80 The Court signaled in dicta that it may not be inclined to allow creative regulatory approaches designed to accommodate the unique aspects of GHG emissions and climate change. The Court went out of its way to reiterate the ‘important limitations on BACT’ that constrain the EPA’s regulatory authority under the PSD program, to ‘acknowledge the potential for greenhouse-gas BACT to lead to an unreasonable and unanticipated degree of regulation’, and to admonish that its ‘decision should not be taken as an endorsement of all aspects of the EPA’s current approach, nor as a free rein for any future regulatory application of BACT in this distinct context’.81 The UARG decision can be understood as a judicial shot across the bow to the executive. Presidential administrations intent on regulating GHGs under the CAA would be wise to proceed with caution, to hew closely to the statutory text, and to align their regulatory approach to familiar methods and norms of regulation to maximize the chances that courts will uphold their regulatory interpretations. New source performance standards and section 111(d) D The UARG precedent will guide efforts to strengthen and expand the regulation of GHGs under the CAA. One of the most important questions in this endeavor is whether and how the CAA can limit emissions from existing stationary sources of GHGs. Section 111(d), which Ibid., 331–32. The Court observed that ‘A brief review of the relevant statutory provisions leaves no doubt that the PSD program and Title V are designed to apply to, and cannot rationally be extended beyond, a relative handful of large sources capable of shouldering heavy substantive and procedural burden.’ Ibid., 322. 79 Ibid., 329 (‘For the reasons we have given, EPA overstepped its statutory authority when it decided that a source could become subject to PSD or Title V permitting by reason of its greenhouse-gas emissions.’). 80 Ibid., 332. 81 Ibid., 331–32. 77 78

Climate change mitigation law and policy in the U.S. and Canada  123 is nested within the CAA provisions requiring that the EPA set standards of performance for certain categories of new sources, provides one potential source of authority for regulating existing stationary sources. Under section 111(d), the EPA identifies emission guidelines (reflecting the best system of emission reduction (BSER) that has been ‘adequately demonstrated’ for a given source category) and states then develop State Implementation Plans (SIPs) establishing standards of performance for the covered sources in their state. Section 111(d) requires the EPA to develop BSER and the submission of SIPs for existing sources of pollutants for which air quality criteria or a national ambient air quality standard have not been issued and which are not subject to regulation as hazardous air pollutants82 but to which a new source performance standard would apply if the source was a new source.83 Whether and how the EPA can use section 111(d) authority to impose GHG emission limits on existing sources, including existing fossil-fuel power plants, has been mired in regulatory and legal processes since 2014. The Obama-era EPA promulgated regulations under section 111(d) (the Clean Power Plan) (CPP) that defined BSER to include generation-shifting, or the reduction of emissions from shifting electricity generation from higher-emission power plants to less-polluting sources of energy.84 Opponents immediately challenged the CPP in court as an overly broad and impermissible interpretation of section 111(d) and the Supreme Court stayed its implementation.85 While legal challenges to the CPP were pending, the Trump-era EPA promulgated a new regulation repealing the CPP and reinterpreting section 111(d) to define BSER in a far more limited fashion to require primarily heat rate improvements at fossil fuel-fired power plants (the Affordable Clean Energy rule) (ACE).86 The differences between the CPP and ACE were stark in terms of the volume of emission reductions the different regulatory approaches could have achieved. The CPP was intended to reduce GHG emissions from the power sector by 32% in 2030 compared to 2005 levels, whereas the ACE would have reduced carbon dioxide emissions by less than 1% from baseline emission projections by 2035. The CPP repeal and ACE were, in turn, challenged in court and subsequently struck down by the D.C. Circuit Court of Appeals in American Lung Ass’n v. EPA.87 Although the Biden administration signaled that it will not seek to implement the CPP, the Supreme Court nonetheless granted certiorari to review the D.C. Circuit’s decision and thus appears poised to definitively resolve the scope of agency authority under section 111(d). It is not surprising that the Biden administration elected not to implement the CPP as, over the extended period of regulatory and legal wrangling outlined above, changed facts on the It is unclear whether this applies narrowly to pollutants already being regulated under section 7412 or more broadly to source categories already regulated under section 7412. 83 One prerequisite for the invocation of section 111(d) for GHGs is that the EPA must have set new source performance standards for GHGs under section 111(b). This prerequisite is satisfied because the EPA promulgated new source performance standards for electric utility generating units. Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,510 (Oct. 23, 2015). 84 Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015). 85 W. Virginia v. E.P.A., 136 S. Ct. 1000, 194 L. Ed. 2d 17 (2016). 86 Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520 (July 8, 2019). 87 985 F 3d 914 (D.C. Cir. 2021), cert. granted, W. Virginia v. Env’t Prot. Agency, 142 S. Ct. 420 (2021). 82

124  Research handbook on climate change mitigation law ground outpaced the CPP. The CPP was projected to reduce carbon dioxide emissions from the electric power sector by 2030 to a level approximately 32% below the level in 2005. Preliminary data indicates that carbon dioxide emissions from the electric power sector in 2019 were already 34% below the level in 2005. That this occurred in the absence of federal controls on GHG emissions from existing power plants evidences the extent to which, during this extended period of uncertainty occasioned by lack of consistent political will at the federal level, U.S. climate change mitigation has been driven by policies and developments outside formal federal regulation (although perhaps influenced by the specter of future formal federal regulation). Possibilities for expanded regulation, NAAQS and section 115 E Broader regulation of sources of GHGs at the federal level, including existing sources, may also be possible under sections 108 and 115 of the CAA. Under section 108, the EPA could develop national ambient air quality standards (NAAQS) for GHGs and require that SIPs include measures designed to meet the standard.88 One benefit of this approach is that it would be comprehensive and flexible. States would have broad authority to regulate myriad sources and flexibility in deciding how to regulate sources. One significant legal question about setting a NAAQS for GHGs under section 108 is whether courts would uphold the EPA’s interpretation of ‘air pollutant’ in section 108(a)(1) to include GHGs. In UARG, the Supreme Court made clear that the term ‘air pollutant’ may not permissibly be interpreted to include GHGs in some circumstances, as where doing so would be administratively unworkable, conflict with the structure of the CAA, run contrary to legislative intent by imposing onerous new regulation on small sources and/or radically expand the EPA’s regulatory authority. Control measures within a single air quality control region cannot reasonably be expected to discernibly influence ambient levels of GHGs in the atmosphere, a fact which could be used to argue that section 108 cannot reasonably be interpreted to apply to GHG emissions. The EPA could also seek to expand the regulation of GHG emissions under the CAA by invoking its authority under section 115 of the CAA. As with section 108, section 115 would be comprehensive in terms of coverage and allow for flexibility. Under section 115, if the EPA has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country (foreign endangerment finding) and it determines that foreign country has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section (reciprocity determination), the EPA must require that the state from which the emissions originate revise its State Implementation Plan to prevent or eliminate the endangerment.89 Section 115 has only been invoked on one prior occasion; there is little experience applying this provision of the CAA.90 Significant legal questions for courts reviewing the EPA’s assertion of section 115 authority would include whether the term ‘air pollutant’ in section 115 can reasonably be interpreted to encompass GHGs and how to evaluate the EPA’s reciprocity determination.

42 USCA § 7408 (West 2021). 42 USCA § 7415 (West 2021). 90 For an excellent analysis of how section 115 might be applied to GHG emissions, see Michael Burger (ed.) Combating Climate Change with Section 115 of the Clean Air Act (Edward Elgar Publishing 2020). 88 89

Climate change mitigation law and policy in the U.S. and Canada  125 F Clean Air Act conclusion At the time of writing, regulation of GHG emissions under the CAA is sector-specific and largely limited in its application to new or modified sources. Existing sources, including fossil-fuel power plants (which account for roughly one-third of U.S. carbon dioxide emissions), are not subject to GHG emission controls. The regulation of GHGs under the CAA could be enhanced by increasing the stringency of regulations promulgated under provisions of the CAA already being used to regulate GHGs (for example, strengthening fuel economy standards under section 202), extending the regulation of GHGs under those CAA provisions to new categories of sources (for example, promulgating NSPS for additional categories of new sources), and expanding the scope of GHG regulation by invoking authority under other provisions of the CAA, including possibly section 111(d), section 108 and/or section 115. The latter possibilities could potentially yield the most emission reductions by bringing a broader range of sources, including, importantly, existing sources, within the CAA’s coverage. But there is significant legal uncertainty about whether courts would uphold interpretations of the CAA extending it under those provisions. In evaluating the role of the CAA in U.S. climate change mitigation policy, it is important to note that the CAA contributes to climate change mitigation policy in ways beyond direct limits on GHG emissions. The Greenhouse Gas Reporting Program establishes mandatory GHG reporting requirements for some facilities and suppliers, which helps to inform climate change mitigation policy.91 Congress amended the CAA’s provisions oriented toward reducing the emission of ozone-depleting substances in December 2020 to require reductions in a potent GHG, hydrofluorocarbon (HFC), that had been used as a substitute for ozone-depleting substances.92 And the CAA can and does contribute to U.S. climate change mitigation through the regulation of non-GHG co-pollutants from sources that also emit GHGs. Regulation of non-GHG co-pollutants can result in incidental decreases in GHG emissions and increase the costs of emission controls for carbon-intensive industries, thereby reducing their market competitiveness as compared to less carbon-intensive alternatives. At this juncture, it is impossible to predict if the CAA will continue to serve as the core of federal climate change mitigation. The prospects for passage of a federal climate change framework law in the U.S. remain highly uncertain. One of the primary attributes to recommend the CAA as a tool for federal climate change mitigation policy is that the law already exists, thereby requiring some mitigation to occur despite a lack of political will to adopt new federal mitigation law. Experience under the CAA to date, however, underscores the extent to which a lack of consistent political will in the executive to implement the CAA can complicate, delay, and weaken the regulation of GHGs under the CAA. National Environmental Policy Act and federal securities laws G Although the CAA is the chief statute of general application that can directly compel those emitting GHGs to reduce their emissions, numerous other statutes of general application intersect with and have the potential to influence GHG emissions in less direct ways. Of these, NEPA and the securities laws stand out for their potential to support mitigation.93

40 CFR Part 98 (2021). Consolidated Appropriations Act, 2021, Pub. L. No. 116-260 § 103, 134 Stat. 1182, 1243 (2020). 93 Local zoning and building codes will be discussed below as subnational mitigation policies. 91 92

126  Research handbook on climate change mitigation law NEPA requires that federal agencies prepare an environmental impact statement for any major federal action that will significantly affect the quality of the human environment.94 Agencies must examine the environmental consequences of proposed actions, analyze the environmental impacts of a range of reasonable alternatives, and discuss mitigation measures to reduce environmental impacts.95 NEPA’s commands are procedural—it does not prevent the agency from moving forward with actions with significant environmental impacts. But if an agency fails to comply with NEPA’s procedural requirements, courts may enjoin agency action until the agency does so. In practice, documenting environmental impacts, alternatives, and the potential to reduce environmental impacts through mitigation can persuade agencies to abandon or modify environmentally harmful projects. Numerous court decisions confirm that, although the text of NEPA does not specifically reference climate change, a proposed action’s contribution to climate change (and/or climate change’s impact on a proposed action) must be considered as part of the NEPA process in some circumstances.96 Environmental reviews conducted under NEPA now regularly include consideration of climate change impacts, although uncertainty and dispute remain about the circumstances in which NEPA compels evaluation of a project’s contribution to climate change and the type of review required. The contours of required review of climate change impacts will continue to develop through the issuance of agency regulations, guidance, and court decisions. The Council on Environmental Quality (CEQ) publishes regulations that govern NEPA implementation by federal agencies; individual agencies often, in turn, develop regulations specific to the implementation of NEPA for the statutes that they administer. Under President Obama, CEQ issued guidance to agencies about how to incorporate climate change into NEPA review, recommending that, where possible, agencies quantify an action’s direct and indirect GHG emissions and identifying methods for agencies to analyze reasonably foreseeable direct, indirect and cumulative GHG emissions and climate effects.97 Under President Trump, CEQ rescinded the Obama-era guidance and proposed its own guidance that could be read to encourage less frequent and robust agency analysis of climate change impacts, emphasizing that ‘the rule of reason permits agencies to use their expertise and experience to decide how and to what degree to analyze particular effects’ and that agencies ‘need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment’.98 The Trump-era CEQ also promulgated new regulations to govern NEPA’s application that may limit the circumstances in which agencies must consider impacts relating to climate change (in particular, by removing the express requirement to consider indirect

42 USCA §4322 (West 2021). 40 CFR § 1502.14 (2021). 96 For example, see: Center for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F 3d 1172 (9th Cir. 2008). 97 Memorandum from the Council of Environmental Quality on Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (Aug. 1, 2016), https://​ceq​.doe​.gov/​docs/​ceq​ -regulations​-and​-guidance/​nepa​_final​_ghg​_guidance​.pdf. 98 CEQ, Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emission, 84 Fed. Reg. 30,097, 30,098 (June 26, 2019). 94 95

Climate change mitigation law and policy in the U.S. and Canada  127 and cumulative effects).99 Barring legislative amendment of NEPA’s text, however, court enforcement of the statutory text will—even if interpreted in a miserly way by an administration hostile to mitigation efforts—continue to require some consideration of climate change impacts in some contexts. And the Biden administration is working to strengthen NEPA’s application to climate change. One area where NEPA could contribute significantly to the development of U.S. climate change mitigation policy would be to temper fossil fuel supply by slowing down or preventing approvals for fossil fuel extraction and the construction of new fuel infrastructure. Under President Trump, the federal government sought to maximize fossil fuel production and supply, including by limiting environmental review to expedite permitting.100 Going forward, information developed through NEPA may support agency decisions to withhold necessary federal authorization for fossil fuel supply approvals and projects on environmental grounds. The laws that govern the issuance of federal approvals for myriad aspects of fossil fuel supply—the leasing of coal, oil, and gas reserves on public lands, the construction of natural gas infrastructure (including interstate pipelines and liquefied natural gas export terminals), and the issuance of permits needed for the construction of oil pipelines in some contexts—afford agencies discretion and require the consideration of environmental effects.101 Credibly accounting for the emissions associated with actions that increase fossil fuel supply under NEPA can provide important information about climate change impacts for agencies to consider. Although agency consideration of the emissions implications of fossil fuel supply approvals may be most effective when agencies undertake programmatic NEPA review to understand the cumulative effects of multiple approvals, the federal government has never conducted a programmatic analysis to evaluate the cumulative effects of its leasing decisions or transport approvals on fossil fuel use and GHG emissions. The result is a patchwork of project-level NEPA documentation that provides only pieces of insight on how federal decisions about fossil fuel supply infrastructure affect fossil fuel use and GHG emissions.102

Further legal development of NEPA’s requirements will be necessary to achieve effective evaluation of the climate change impacts of federal actions affecting fossil fuel supply; doing so successfully could significantly shape U.S. climate change mitigation policy.

99 Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (Jul. 16, 2020) (codified at 40 CFR pt. 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508, 1515, 1516, 1517, and 1518). The new regulations were challenged in court with cases pending at the time of writing. 100 For example, see: Executive Order No. 13868, Promoting Energy Infrastructure and Economic Growth, 84 Fed. Reg. 15,495 (2019); Clean Water Act Section 401 Certification Rule, 85 Fed. Reg. 42,210 (Jul. 13, 2020) (codified at 40 CFR Part 121); Executive Order No. 13867 Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States (2019) (‘Any decision to issue, deny, or amend a permit under this section shall be made solely by the President.’). 101 Michael Burger and Jessica Wentz, ‘Evaluating the Effects of Fossil Fuel Supply Projects on Greenhouse Gas Emissions and Climate Change under NEPA’ (2020) 44 William & Mary Environmental Law and Policy Review 423, 434 (‘The statutes authorizing these agencies to approve this infrastructure also require consideration of environmental impacts and the responsible agencies have broad discretion to deny approvals based on environmental impacts or other issues pertaining to the public interest.’). 102 Ibid., at 427.

128  Research handbook on climate change mitigation law Federal securities laws constitute another set of laws of general application with the potential to support mitigation. By mandating disclosure about the risks and opportunities that climate change poses to reporting companies, securities laws can prompt voluntary mitigation efforts. Regulation S-K, promulgated under the federal securities laws,103 requires public companies to report information to educate and inform investors. For example, Item 101 (Description of Business) requires that reporting companies disclose the material effects of complying with regulations concerning the environment and the material estimated capital expenditures for environmental control facilities;104 Item 103 (Legal Proceedings) requires that reporting companies disclose material pending legal proceedings (including judicial or administrative proceedings relating to discharges to the environment and environmental protection);105 Item 105 (Risk Factors) requires that reporting companies disclose the most significant factors that make an investment speculative or risky;106 and Item 303 (Management’s Discussion and Analysis) requires that reporting companies disclose known trends, events, demands, commitments, and uncertainties reasonably likely to have a material effect on their financial condition or operating performance.107 In 2010, the SEC issued an interpretive release providing general guidance about how disclosure requirements under federal securities laws and regulations apply to climate change matters.108 The 2010 interpretive release confirmed that the above-described items of Regulation S-K could require disclosure relating to climate change. Commenting on legislative, regulatory, business and market impacts related to climate change, the SEC observed that some companies might be directly affected by new GHG laws or regulations imposing compliance obligations upon them (for example, requiring them to reduce emissions or buy emissions credits) and that other companies could be indirectly impacted by resulting changes in the prices for goods or services.109 The SEC also observed that the physical effects of climate change ‘could have a material effect on a registrant’s business and operations’ by ‘impact[ing] a registrant’s personnel, physical assets, supply chain and distribution chain’.110 Disclosure by companies of the risks and opportunities of climate change can promote mitigation in numerous ways, including by informing investors who wish to divest from carbon-intensive industries and companies, ‘influenc[ing] companies to address climate change risks in their internal decision-making processes’, and ‘fostering investments in new companies that are innovating in clean energy’.111 Investors may choose not to purchase shares in companies with high emissions (as a matter of principle or because those companies are subject to regulatory risk), thereby reducing the share price of high emitters and encouraging them to reduce emissions. Investors may likewise shun companies with high risks from the impacts of climate change, including risks resulting from a company’s reliance on

Including the Securities Exchange Act of 1934, as amended, 15 USCA. §§ 78a et seq. (West 2021). 17 CFR § 229.101(c)(1)(xii) (2021). 105 17 CFR § 229.103 (2021). 106 17 CFR § 229.105 (2021). 107 17 CFR §229 (2021). 108 Commission Guidance Regarding Disclosure Related to Climate Change, Release No. 33-9106 (Feb. 2, 2010) [75 FR 6290 (Feb. 8, 2010)]. 109 Ibid., at 5–6. 110 Ibid., at 6. 111 Hari M. Osofsky, Jacqueline Peel, Brett McDonnell and Anita Foerster, ‘Energy Re-Investment’ (2019) 94 Indiana Law Journal 595, 597–98. 103 104

Climate change mitigation law and policy in the U.S. and Canada  129 carbon-intensive goods or services, thereby encouraging those companies to find lower carbon alternatives. There is clear and growing interest among investors for reliable climate change disclosure and robust development of voluntary protocols for climate change disclosure.112 Regrettably, the SEC has done little to refine and focus the broad guidance that it issued in 2010 through the issuance of more detailed guidance or through enforcement actions and ‘corporate disclosure obligations are not necessarily supporting changed corporate decision-making, nor is the disclosure of climate risks within SEC filings of a sufficient quality to provide useful information to investors to drive divestment decisions’.113 Under President Trump, the SEC missed opportunities to speak directly to climate change disclosure114 and took actions to frustrate efforts to use securities disclosure and associated divestment to promote climate change mitigation.115 Under the Biden administration, the SEC is seeking to more robustly apply the federal securities laws to require disclosure related to climate change.116 4.2

Canadian Federal Legislative Framework

Prior to the Pan-Canadian Framework discussed above, the main piece of national legislation dealing with greenhouse gases was the 1999 Canadian Environmental Protection Act (CEPA),117 which focused on controlling pollution and generally protecting the environment. CEPA enables the federal government to negotiate equivalency agreements with the provinces regarding their respective GHG regulatory systems, and allows provincial regulation to replace federal mechanisms in the event that they exceed environmental performance of federal standards. The CEPA gives both Environment and Climate Change Canada and Transport Canada mandates to regulate emissions from a number of sources in their remits, notably vehicles and the freight and trucking industry, which represent approximately 10% of national emissions.118 In part because of the internal political diversity among provinces, but also because of Canada’s close economic integration with the U.S., federal governments in the past have found it convenient to simply link or match national mitigation mechanisms to U.S. regulations, which is easily justified to the provinces because of the obvious economic importance

Madison Condon, ‘Market Myopia’s Climate Bubble’ (2022) 1 Utah Law Review 63. Osofsky et al. (n. 111) 624. 114 See generally: ‘Joint Statement of Commissioners Allison Herren Lee and Caroline A. Crenshaw on Amendments to Regulation S-K: Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial Information’ (Nov. 19, 2020); ‘Statement of Commissioner Caroline A. Crenshaw on the “Modernization” of Regulation S-K Items 101, 103, and 105’ (Aug. 26, 2020); ‘Statement of Commissioner Allison Herren Lee, Regulation S-K and ESG Disclosures: An Unsustainable Silence’ (Aug. 26, 2020). 115 For example: Financial Factors in Selecting Plan Investments, 85 Fed. Reg. 72846 (Nov. 13, 2020) (to be codified at 29 CFR Parts 2509 and 2550); Fair Access to Financial Services, 85 Fed. Reg. 75261 (proposed Nov. 25, 2020) (to be codified at 12 C.F.R. Part 55). 116 In April 2022, the SEC proposed new disclosure rules relating to climate change. The Enhancement and Standardization of Climate-Related Disclosures for Investors, 87 FR 21334 (Apr. 11, 2022). However, as with the CAA and NEPA, a lack of consistent political will at the executive level has complicated and slowed efforts to deploy the federal securities laws in support of mitigation. 117 Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33. 118 Environment and Climate Change Canada, ‘Greenhouse Gas Emissions: Canadian Environmental Sustainability Indicators’ (n. 32). 112 113

130  Research handbook on climate change mitigation law of the U.S. as an export market for virtually every Canadian province and territory.119 Given the cross-border integration of the automobile industries and markets, Canadian governments since the 1980s have done this especially to align vehicular emission standards with U.S. standards, including recognizing emission certificates issued by the U.S. Environmental Protection Agency. This has been done through regulations promulgated under the CEPA, most importantly the Passenger Automobile and Light Truck Greenhouse Gas Regulations,120 amended in 2014, and the Heavy-Duty Vehicle and Engine Greenhouse Gas Emission Regulations121 and its standards published in 2017. Another regulatory regime arising from CEPA is that targeting coal-fired power plant emissions, controlled through the 2012 Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulations,122 which impose performance standards on any new plants as well as on any existing plants that reach the end of their useful lives (generally 50 years of operation). These standards were updated in 2018 with amendments that required all coal-fired electricity generating units to achieve a performance standard of 420 Mt of CO2/GWh by 2030 at the latest.123 Contaminants in fossil fuels are controlled through the Gasoline Regulations124 which set standards for the content of lead, phosphorous, sulphur and benzene contained in gasoline. The carbon content of liquid fuels is regulated by the Renewable Fuels Regulation125 and at the time of writing, work is ongoing at Environment and Climate Change Canada to develop a regulatory framework for a clean fuel standard.126 For the most part, these regulatory regimes focus on setting quality standards, and are not necessarily designed to achieve emissions reductions. The primary legislative mechanism to achieve nationwide reductions is the 2016 Greenhouse Gas Pollution Pricing Act mentioned earlier. The GGPPA represents a significant departure from the largely voluntary and subsidy-based emissions reduction schemes that Canadian governments have imagined and occasionally attempted since Kyoto. Its core component is a pricing system on carbon that sets a floor for carbon pricing throughout Canada, and includes a carbon levy imposed on producers, distributors, and importers of fossil fuels, as well as a CO2e127 output-based pricing system for specific industrial facilities that surpass a specified tonnage threshold.128 When a province fails to meet the benchmark price, the GGPPA’s ‘backstop’ enforcement mechanism can be triggered, which empowers the federal cabinet to list the province as being subject to that benchmark price.129 Once listed, the federal government retains the discretion

Healy, van Nijnatten and López-Vallejo (n. 2) 135. Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations (SOR/2010-201). 121 Heavy-Duty Vehicle and Engine Greenhouse Gas Emission Regulations (SOR/2013-24). 122 Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulations (SOR/2012-167). 123 Regulations Amending the Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulations, SOR/2018-263. 124 Gasoline Regulations (SOR/90-247). 125 Renewable Fuels Regulations (SOR/2010-189). 126 Environment and Climate Change Canada, ‘Clean Fuel Standard Regulatory Framework’ (2017) https://​www​.canada​.ca/​en/​environment​-climate​-change/​services/​canadian​-environmental​-protection​-act​ -registry/​publications/​clean​-fuel​-standard​-regulatory​-framework​.html accessed 26 April 2021. 127 CO2e is a measure that refers to a carbon dioxide ‘equivalent’. 128 Greenhouse Gas Pollution Pricing Act SC 2018, c. 12, s. 186, ss 17, 20, 21. 129 Ibid., ss 3, 166(2). 119 120

Climate change mitigation law and policy in the U.S. and Canada  131 to grant net revenues generated by the benchmark mechanism to a province directly.130 To date, most provinces and territories have responded by either imposing a provincial carbon levy of one sort or another, or have been listed since the GGPPA was promulgated, including Ontario, New Brunswick, Manitoba, Saskatchewan, Yukon, Nunavut and Alberta.131 Only two provinces to date, Quebec and Nova Scotia, will be meeting the GGPPA price through cap-and-trade mechanisms.

5

SUBNATIONAL LEGAL FRAMEWORKS

As mentioned above, as federal democracies, both Canada and the U.S. reserve some legislative and enforcement authority for climate mitigation at the subnational levels. In contrast to the U.S., however, Canada’s federal constitutional order gives considerable political and legal authority to its subnational governments to pursue climate change policies of their own. Canada’s large size and highly varied geographical and resource make-up creates very different political interests among provinces vis-à-vis climate mitigation. There are wide variations in GHG emissions among provinces due to variable population densities, sources of energy, and economic structures. Provinces have very different energy uses, with different consumption patterns. The highest emitters traditionally have been Alberta and Ontario, emitting 275.8 and 163.2 Mt CO2e respectively in 2019, hardly comparable to smaller and more rural provinces like New Brunswick and Prince Edward Island, which emitted 12.4 and 1.8 Mt CO2e respectively the same year. One can also consider how the heating needs for communities in the relatively temperate climate of British Columbia’s West Coast, 80% of whose electricity is supplied by hydroelectric power, is far different from those of communities in the Far North in the Arctic that are not connected to the North American electric grid and are almost entirely dependent on external fossil fuel sources.132 Except when specifically linked to federal regulatory regimes, provinces have taken different approaches to climate change over the years. In major fossil fuel producers like Alberta and Saskatchewan, which are heavily dependent on the oil and gas sector for employment, both the government and society have been generally resistant to initiatives to transition away from fossil fuels, something that figures heavily in provincial and federal politics and electoral cycles.133 Other provinces that are less dependent on fossil fuel production for their economies have generally been more open to regulating emissions. Some provinces have even gone further than the federal government. British Columbia, for instance, was the first jurisdiction in North America to legislate a revenue-neutral carbon tax.134 Ontario and Quebec both created

Ibid., ss 17–35, 40, 48, 165. Alberta initially avoided being listed because of its Climate Leadership Act,⁠ but this changed once the Act was repealed in 2019.⁠ Climate Leadership Act, SA 2016, c. C-16.9; An Act to Repeal the Carbon Tax, SA 2019, c. 1. 132 Karunathilake and others (n. 5) 273. 133 Brendan Boyd, ‘A Province under Pressure: Climate Change Policy in Alberta’ (2019) 52 Canadian Journal of Political Science 183. This has not always been the case, however. Consider for instance Alberta’s passage of the Climate Change and Emissions Management Amendment Act in 2007 under the NDP government of Rachel Notley. Climate Change and Emissions Management Amendment Act, 2007, SA 2007, c. 4. 134 Harrison, ‘A Tale of Two Taxes: The Fate of Enviornmental Tax Reform in Canada’ (n. 37). 130 131

132  Research handbook on climate change mitigation law cap-and-trade schemes and joined the state of California in the Western Climate Initiative in 2008, later joined by Nova Scotia in 2019. After a change of government, though, the newly elected Conservative government under Doug Ford dismantled its scheme and withdrew Ontario from the WCI by passing the Cap and Trade Cancellation Act on October 11, 2018.135 It is because of this provincial autonomy to develop separate regulatory frameworks that climate mitigation in Canada is a kaleidoscope of regulatory frameworks at the provincial level, not only with regard to mechanisms to reduce emissions but also for other mitigation schemes, such as the promotion of renewable energy projects. This provincial differentiation means that renewable energy projects around the country face different monitoring and oversight regimes, enjoy different incentive schemes, and must contract with different provincial operators operating under different utilities legislation.136 Provinces also vary in their use of subsidies for things like low- or zero-emission electric vehicles, as offered in Quebec and British Columbia, which have been controversial among economists for their variable contributions to reducing emissions, especially in places where electricity grids are supplied through non-renewable power sources.137 While federal and provincial governments are the primary focus for climate mitigation policy, local and municipal governments across Canada have also adopted climate mitigation policies in a variety of ways. The inclusion of climate change mitigation policies in municipality planning has been credited to the work of the Federation of Canadian Municipalities, which administers the Partners for Climate Change Protection Program, first introduced in 1994, which has provided technical expertise and financial support to municipalities for their policy development work. In one study of 63 municipal climate mitigation policies across Canada, 80% were found to contain policies related to communication and raising awareness among citizens about reducing emissions, as well as promotions of energy efficiency and renewable energy, along with policies for managing water and waste. This reflected the majority of focus of such policies on consumer behaviour, and relatively few (38%) contained aspects related to food and agriculture, and few had robust provisions for monitoring and evaluation, with even fewer publishing their findings.138 Powers, responsibilities, and access to operating revenue are all delegated to local authorities by provincial statutes. They are not recognized as a separate order of government under constitutional law, and section 92(8) of the Constitution Act of 1867 gives exclusive powers to the provinces to make laws relating to ‘municipal institutions in the province’. As such, the shape and form of local government systems throughout the country varies from province to province and in federally administered territories. Only one province, Nova Scotia, has made climate change planning obligatory for municipalities, while a few others, like British Colombia, require municipalities to include GHG reduction targets in their municipal planning. The primary source of funding for municipalities is usually property taxes, with one-fifth Cap and Trade Cancellation Act, 2018, SO 2018, c. 13. Electrical energy projects that cross provincial borders, though, become subject to the federal National Energy Board Act, which governs inter-provincial electricity lines. National Energy Board Act, RSC 1985, c. N-7. 137 Zachary Thorne and Larry Hughes, ‘Evaluating the Effectiveness of Electric Vehicle Subsidies in Canada’ (2019) 155 Procedia Computer Science 519, 525; Germain Belzile and Mark Milke, ‘Are Electric Vehicle Subsidies Efficient?’ (Montreal Economic Institute 2017) 4. 138 Dave Guyadeen, Jason Thistlehwaite and Daniel Henstra, ‘Evaluating the Quality of Municipal Climate Change Plans in Canada’ (2019) 152 Climatic Change 121, 132. 135 136

Climate change mitigation law and policy in the U.S. and Canada  133 of their total revenue coming from government transfers from higher (provincial, territorial, federal) levels. There is no federal national urban policy, although the federal government can get involved at the municipal level through transfer payments to them that are administered and distributed by provinces and territories, as well as through financial schemes, like the Gas Tax Fund (GTF) to provide long-term funding to support municipal infrastructure for clean air and water, and lower GHG emissions.139 Whereas in Canada the subnational level is both a source of political complication for federal climate mitigation policy as well as the constitutional domain in which any concrete measures and efforts must be played out, in the U.S. it is the lack of political will at the federal level to adopt climate change law that has heightened the relative importance of subnational (regional, state, and local) mitigation measures. Some states have passed comprehensive mitigation laws to reduce state-wide GHG emissions. In 2006, under the Global Warming Solutions Act, California committed itself to reducing its statewide GHG emissions to 1990 levels by 2020,140 a goal which it met and subsequently strengthened. California is now focused on a goal of reducing statewide GHG emissions to 40% below 1990 levels by 2030. Key mitigation measures being implemented pursuant to the California Global Warming Solutions Act include a cap-and-trade program that sets a statewide limit on large sources responsible for 85% of California’s GHG emissions (including electricity generators and large industrial facilities) and a low carbon fuel standard designed to reduce the carbon intensity of fuels sold in-state by setting an average carbon content for fuels that declines annually. More recently, in 2019, New York passed the Climate Leadership and Community Protection Act, committing the state to reduce its economy-wide GHG emissions by 40% by 2030 and no less than 85% by 2050 from 1990 levels.141 The New York State Climate Action Council is preparing a Scoping Plan to detail how New York will achieve these reductions. At least a dozen states have announced net-zero carbon emission or 100% renewable generation goals. And many states without climate change mitigation laws that establish overall targets for state-wide GHG emissions have adopted less comprehensive, but nonetheless significant, mitigation policies like renewable portfolio standards, which require that a specified percentage of the electricity that utilities sell must come from renewable resources. Some states are working to coordinate their mitigation efforts with other states and even internationally. Eleven states in the north-east are members of the Regional Greenhouse Gas Initiative (RGGI). The RGGI creates a regional cap on carbon dioxide emissions from the power sector in participating states (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Virginia). The cap is scheduled to be lowered by 30% over the period 2020 to 2030. And California’s cap-and-trade program is linked with that of the Canadian province of Quebec. The linking of the two programs allows for trading of emission allowances and offset credits across the programs. Many local governments have likewise adopted measures to mitigate climate change. There are myriad actions local governments can take to reduce emissions, from adopting anti-idling

Government of Canada, ‘The Federal Gas Tax Fund’ (June 12, 2020) https://​www​.infrastructure​ .gc​.ca/​plan/​gtf​-fte​-eng​.html accessed May 1, 2021. 140 California Global Warming Solutions Act of 2006, California Health and Safety Code §§ 38500-38599 (West 2020). 141 NY Env’t Conserv. Law § 75-0107. 139

134  Research handbook on climate change mitigation law ordinances to installing methane-to-energy systems at municipal landfills.142 Of the mitigation interventions within the authority of local governments, some of the most important relate to shaping the built environment to reduce vehicle miles traveled, encourage energy efficiency, and facilitate electrification.143 Zoning codes and planning approaches that ensure access to public transportation hubs, support mixed-use development and walkable neighborhoods, promote safe biking, and discourage driving (for example, by imposing congestion fees or reducing parking requirements for new developments) can reduce vehicle miles traveled, and facilitating the development of charging infrastructure can support the transition to electric vehicles. Building codes can also be used to mandate energy efficiency and reduce building emissions and numerous local governments now have climate-friendly building codes. New York City’s Climate Mobilization Act, to provide one example, requires buildings larger than 25,000 square feet to reduce building emissions by 40% by 2030 and by 80% by 2050,144 which may help to prompt a transition from fossil fuel-fired boilers to electric options such as heat pumps. Despite the global nature of climate change, policymakers increasingly recognize the important role of local governments in developing and implementing mitigation policy, in part because of their unique capacity to influence the emissions-producing behaviors of their residents. Political hostility to the adoption of climate change mitigation policy at the federal level constrains subnational climate action, however. Some states oppose government mitigation outright and have declined to adopt laws designed to mitigate climate change, obstructing federal mitigation efforts (often by filing lawsuits challenging the application of laws of general application to climate change), and/or obstructing local mitigation efforts (by pre-empting and prohibiting local measures designed to mitigate climate change). Uneven political support for climate mitigation at the subnational level also creates holes or gaps where jurisdictions lack state or local mitigation policies, thereby limiting the general coverage of mitigation policy at the subnational level. Such holes can also frustrate mitigation efforts made in other subnational jurisdictions by creating leakage opportunities for emitters when emissions disallowed in one community can be merely displaced to another. Federalism requirements and federal hostility to climate change mitigation policy also constrain subnational climate change mitigation by impeding action even by subnational jurisdictions that are motivated to adopt and implement strong mitigation policies of their own. The U.S. Constitution prohibits states from entering into certain types of agreements with one another and with other countries (Compact Clause) and prohibits states from discriminating against or unduly interfering with interstate commerce (dormant Commerce Clause). State laws are also subject to pre-emption by federal law (Supremacy Clause).145 Together, these aspects of constitutional federalism limit the legal authority and purview of subnational actors to adopt climate change mitigation policy. For an overview of local mitigation interventions, see Katherine A. Trisolini, ‘All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation’ (2010) 62 Stan L Rev 669. 143 For a comprehensive analysis of the role of local governments in responding to climate change, in particular using land use authority, see John R. Nolon, Choosing to Succeed: Land Use Law & Climate Control (Environmental Law Institute 2021). 144 NYC, Loc L 97, § 28-320 (2019). 145 Daniel A. Farber, ‘Climate Change, Federalism, and the Constitution’ (2008) 50 Arizona Law Review 879, 892–910. 142

Climate change mitigation law and policy in the U.S. and Canada  135 For example, the Compact Clause prevents subnational jurisdictions from giving regulatory authority and enforcement powers to multi-state regulatory authorities.146 Regional programs can be more effective than state programs because they create larger economies of scale, provide more opportunities for trading, and regional requirements offer more consistency than state requirements. However, states attempting to coordinate mitigation policy regionally must take care to structure their coordination in ways that avoid violating the Compact Clause. The RGGI develops a model rule that must then be adopted under the law of each member state, and states are also free to withdraw with 30 days’ notice. Federalism doctrines similarly constrain subnational efforts to coordinate with other governments internationally. This restriction is not absolute, however, as demonstrated by California’s linkage of its cap-and-trade program with Quebec, which was unsuccessfully challenged by the U.S. government on the grounds that it violated the Compact Clause147 and was pre-empted under the Foreign Affairs Doctrine.148 In upholding the linkage of the cap-and-trade programs, the court emphasized that California retained policymaking, regulatory, and enforcement authority and that there was no enforceable prohibition on unilateral modification or termination. The dormant Commerce Clause also imposes a constraint on subnational climate mitigation policy. The Constitution grants the federal government the authority to regulate interstate commerce;149 and courts have interpreted this through the dormant Commerce Clause doctrine to impose limits on actions that subnational governments can take with respect to interstate commerce. The key proscriptions under the dormant Commerce Clause that limit the power of subnational governments to adopt climate change mitigation policy are that it prohibits subnational governments from discriminating against interstate commerce,150 unduly interfering with or burdening interstate commerce,151 and adopting extraterritorial regulation.152 One scholar advises that in order to avoid running afoul of the dormant Commerce Clause, states adopting climate mitigation policy ‘should be careful that their regulations as a matter of form apply only to in-state entities and transactions, and that impacts on out-of-state activities appear to be merely side-effects encountered in achieving legitimate local regulatory goals’.153 California’s Low Carbon Fuel Standard was initially struck down by a district court that held

146 U.S. Constitution Article I, § 10, cl. 3 (‘No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State, or with a foreign Power’). 147 United States v. California, 444 F Supp 3d 1181, 1197 (ED Cal 2020). 148 United States v. California, No. 219CV02142WBSEFB, 2020 WL 4043034, at *5–12 (ED Cal. July 17, 2020). 149 U.S. Const. art. I, § 8, cl. 3 (‘The Congress shall have Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes’). 150 City of Philadelphia v. New Jersey, 437 US 617, 624 (1978). 151 Pike v. Bruce Church, Inc., 397 US 137, 142 (1970) (‘Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’). 152 Healy v. Beer Inst., Inc., 491 US 324, 336 (1989): [A] statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature. The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State. 153 Farber (n. 145) 900.

136  Research handbook on climate change mitigation law that it impermissibly discriminated against interstate commerce, although that decision was reversed on appeal.154 Despite these constraints and limitations, subnational laws constitute a significant element of U.S. climate mitigation policy. The relative significance of subnational mitigation policy has been heightened by decades of halting federal action and, at times, federal hostility to climate mitigation policy. Motivated states and local governments have pushed ahead, to some extent filling the void created by a lack of comprehensive federal regulation of GHG emissions. In the process, they have demonstrated that regulating at the state and local levels offers some unique and essential benefits, such as the ability to use local land use to influence emitting behaviors, and their engagement in policy experimentation will inform the development of climate policy going forward. Ultimately, however, subnational mitigation policy on its own is likely insufficient to achieve sufficient reductions in U.S. GHG emissions. Due to jurisdictional holes mentioned earlier, subnational climate change mitigation policy is uneven and cannot effectively prevent leakage, and subnational jurisdictions lack the power to regulate important sources of emissions.

6 CONCLUSION Comparing the dysfunction of Canadian and U.S. efforts to adopt and implement effective climate change mitigation policy brings to the surface common and shared obstacles presented by economic prerogatives. In both countries, concerns about the economic costs of adopting mitigation policy measures and the outsized influence of fossil fuel interests have effectively stunted the development of robust climate change mitigation policy, albeit through social and political mechanisms that are unique to each. In the U.S., economic concerns and special interest group influence, in particular successful efforts to sow doubt about climate change science, have stunted public and political will to address climate change, thereby preventing the alignment of congressional and presidential will to adopt federal climate change mitigation law; slowing and weakening the application of existing statutes of general application to climate mitigation; and limiting the number of subnational jurisdictions that have adopted mitigation measures and constrained the scope of those measures. In Canada, the primary governance obstacle has been the economic and political lure on federal politicians to maintain support for its oil production economy while avoiding the political costs and fallout of dismantling Canada’s economic dependence on the sector. Their need to strike complex political balances of interests, spread across Canada’s federal and geographic landscape, has resulted in a complex plurality of national and subnational mitigation regimes that has made it very difficult to effectively coordinate climate mitigation responses at the national level. For the U.S., it is beginning to seem that a successful path forward will not be to insist that the dire impacts of climate change, fairness, or international obligations compel the prioritization of climate change mitigation over economic considerations. Instead, success will have to come through the use of myriad policy levers to change the economic equation itself, or at least the perception thereof. If climate mitigation becomes understood as a policy of relative economic promise compared to fossil fuel-fired business-as-usual, that may remove

Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013).

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Climate change mitigation law and policy in the U.S. and Canada  137 the central political obstacle to the adoption of federal mitigation law. It is hopeful to note that such a transformation of the perceived economics of climate change mitigation appears to be under way, aided by myriad policies that have increased the viability and reduced the cost of renewable energy, increased the costs and reduced the viability of the most carbon-intensive sources of energy generation, facilitated investor scrutiny of fossil fuel interests, and made increasingly believable promises of green technologies (such as electric vehicles), green jobs and a green economy. This gradual reorientation in the economics of U.S. mitigation policy, achieved through pressure on a number of fronts, may be the most significant legacy of the patchwork mitigation measures cobbled together to date, even more significant than the actual volume of emissions directly avoided through those policies. Whether and how Canada can navigate its primary economic obstacle to the adoption of strong mitigation policy, namely revenues from fossil fuel extraction and export, is somewhat less clear. While uncertainty surrounding the constitutionality of the GGPPA has now been relatively resolved by the Supreme Court, which has confirmed the constitutionality of at least a national baseline price on carbon and potentially future forms of federally directed regulatory coordination of provincial environmental policy regimes, on its own the GGPPA will not be enough to ensure that Canada achieves the mitigation targets to which it has committed itself internationally. At the time of writing, the Trudeau Liberals command a delicate minority government in the midst of a pandemic, which has left relatively little political space for the kind of drastic restructuring that will be necessary to achieve those targets. While such choices may be somewhat easier with the Biden administration south of the border setting a more ambitious pace and standard for change, the contradictions of Canadian mitigation policy are likely to continue as long as it remains tethered to its fossil fuel exporting economy, ultimately satisfying few and disappointing many on all sides of the debate.

6. Climate change mitigation law and policy in Central and South America Juliana Zuluaga Madrid

INTRODUCTION In 2020, most forecasts about the course of the world failed. From the macroeconomic projections of regions and continents to family economies; from the geopolitical trends and advancements in global social goals to the small-scale industries at the core of the system; from the public space and cultural rules to the private projects of millions of individuals, the COVID-19 pandemic left nothing unchanged. The environment was certainly not an exception, as the pandemic itself and the measures taken by governments (and society in general) to face it, interfered with the anthropogenic impacts to natural resources all over the world and also with the human efforts to control them, particularly in the field of climate change. Latin America and the Caribbean (LAC), as a region, was especially vulnerable to the effects of the pandemic.1 The developing economies could not resist extended lockdowns without collapsing and governments lacked economic resources to ensure a minimum level of income to all who needed it. On the health front, the challenge was enormous, with highly populated urban areas where a large percentage of the population lives below the poverty line, deficient health infrastructure in many places and limited access to health coverage, a catastrophe was only the natural outcome to expect.2 In this scenario, there are some existing and new challenges for climate change mitigation in the region. First, many of the countries have limited economic resources to invest in their mitigation strategies and tend to privilege investment in adaptation because their specific situation makes them particularly vulnerable to the negative effects of climate change (i.e. small island developing States), and therefore, many of the nationally determined contribution (NDC) unconditional commitments to decrease GHG emissions are not ambitious enough. There are conditional commitments that depend on the availability of international cooperation and funds but, in the new global economic scenario, these resources could be anything but guaranteed. Secondly, the national economies of many of the States in the region are closely tied to the financial resources from extractive industries,3 particularly fossil fuels, which may interfere with the energy transition processes that, according to experts, are needed to comply with the goals set in the Paris Agreement, especially in an economic recession.

See, generally, Henry Jiménez Guanipa and Marisol Anglés Hernández (eds), La Emergencia Sanitaria Covid-19 a la luz de la emergencia climática (Fundación Heinrich Böll 2020). 2 See ECLAC, ‘Pactos políticos y sociales para la igualdad y el desarrollo sostenible en América Latina y el Caribe en la recuperación pos-Covid-19’, Especial Report No 8, 15 October 2020. 3 That is, Mexico, Brazil, Chile and, to some extent, Peru and Colombia. 1

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Climate change mitigation law and policy in Central and South America  139 Finally, there are serious threats to the natural carbon sinks across the region, including for the irreplaceable Amazon, and the governments could take better advantage of the options to reduce emissions by preventing land-use change and improving agricultural and forest management practices. The actual impact of the pandemic in the economy, in the environment, and other aspects of life is still undetermined; and in the view of this uncertainty, climate change law and policy must rise to the challenge of enabling effective actions in the context of a world concerned with other equally urgent matters. In this scenario, it is more important than ever to show that the long-term impacts of the climate crisis can be much worse than the temporary impacts of the pandemic, or the medium-term impacts of slower economic development. The UN Special Relator David Boyd has warned that reducing global efforts against climate change under the excuse of the COVID-19 pandemic, in the light of the preceding global environmental crisis, would be ‘irrational, irresponsible, and dangerous for the rights of vulnerable people’.4 Climate change mitigation is at the top of the list for environmental regulators, prompted by the commitments of each signatory country to the Paris Agreement (2015), which are in the process of being updated, but the scenario has shifted in 2020, changing the priorities of many governments.5 The present chapter analyses some of the repercussions of the new scenario from the South and Central American perspective, hoping to offer some insights about the challenges that climate change mitigation implies for the region and for the international community in general from the greater perspective of achieving global goals and the expectations of getting financial and technological support on which some of the countries in the region condition the fulfilment of their NDCs.

1

INTERNATIONAL LAW CONTEXT

During the 21st session of the Conference of the Parties (COP 21) to the United Nations Framework Convention on Climate Change (UNFCCC),6 carried out in Paris, in December 2015, the parties adopted the Paris Agreement,7 establishing a global commitment to stabilize the emissions of greenhouse gases (GHG) in order to ensure that the global average temperature does not increase more than 2 °C above pre-industrial levels by 2100, with a more ambitious goal to keep it below 1.5 °C. The main strategy to achieve this was the adoption of NDCs by each party, representing their specific commitments to reduce the emissions of GHG within a certain time frame. Each NDC must be independently established by the party, taking into consideration its particular

Semana Sostenible, ‘Pandemia no es excusa para flexibilizar políticas ambientales: ONU’ (Semana Sostenible, 21 April 2020) https://​sostenibilidad​.semana​.com/​medio​-ambiente/​articulo/​coronavirus​ -en​-el​-mundo​-pandemia​-no​-es​-excusa​-para​-flexibilizar​-politicas​-ambientales​-onu/​50092 accessed 8 November 2020. 5 ECLAC, n. 2, 14. 6 United Nations Framework Convention on Climate Change (adopted 20 January 1994), A/ RES/48/189. 7 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) TIAS 16-1104 (Paris Agreement). 4

140  Research handbook on climate change mitigation law resources, opportunities and challenges. The Paris Agreements included a binding rule to update and increase the NDCs every five years.8 There are close to 190 parties to the Paris Agreement, including all of the 33 countries in the LAC region.9 The total of the GHG emissions of Latin America and the Caribbean account for 8.3 percent of the world’s GHG emissions,10 estimated at 3.9 Gt of carbon dioxide equivalent in 2014 according to the World Resources Institute CAIT Climate Data Explorer, a relatively low overall contribution, mostly due to the fact that these are developing countries in the process of increasing industrialization and growing their economies, and they have not reached yet the peak of their GHG emissions. The emissions in the region, however, are very unequal, with only three countries being responsible for 60 percent of the total contribution of the region: Brazil (34.4 percent), Mexico (18.5 percent) and Argentina (11.2 percent).11 Paradoxically, albeit being among the lowest contributors of GHG emissions at a global level, many LAC countries are particularly vulnerable to the negative effects of a significant increase in the world’s average temperature; therefore, the majority of the regional governments are more concerned with adaptation strategies rather than mitigation of GHG. The NDCs reflect this, with 32 out of the 33 addressing adaptation to climate change and 70 percent including both mitigation and adaptation.12 The economic sectors on which the goals and programs focus the most are energy, land use and forests, transportation, agriculture and waste management. Around 23 percent of GHG emissions from the LAC region are linked with agriculture,13 making measures to improve sustainable agricultural practices relevant to mitigation efforts. Actions in the energy sector involve regulatory incentives for renewable energy projects and energy efficiency, whereas in the sector of land use and forests the goals are to fight deforestation and degradation of soils and to promote sustainable forest management.14 According to several sources, the expansion of renewable energies in the LAC region would account for the majority of GHG emissions reductions, as nearly 50 percent of the emissions of the region are linked to the energy sector.15 Some of the most notable goals in this regard are those of Costa Rica, which aims to generate 100 percent of its electricity from renewable

Ibid., Article 4(9). The countries included in the calculations for the LAC region are the following: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia (Estado Plurinacional de), Brazil, Chile, Colombia, Costa Rica, Cuba, Dominica, Ecuador, El Salvador, Granada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Santa Lucia, Surinam, Trinidad and Tobago, Uruguay and Venezuela. 10 J. Samaniego et al., ‘Panorama de las contribuciones determinadas a nivel nacional en América Latina y el Caribe, 2019: avances para el cumplimiento del Acuerdo de París’ (LC/TS.2019/89-P), Santiago, Economic Commission for Latin America and the Caribbean (ECLAC), 2019, 29. 11 Ibid., 75. 12 Ibid. 13 According to data from 2014 found in the CAIT Climate Data Explorer of the World Resources Institute. 14 J. Samaniego et al., n. 10, 33. 15 D. Senshaw and J. Kim, ‘Meeting Conditional Targets in Nationally Determined Contributions of Developing Countries: Renewable Energy Targets and Required Investment of GGGI Member and Partner Countries’ (2018) 116 Energy Policy; J. Markard, ‘The Next Phase of the Energy Transition and its Implications for Research and Policy’ (2018) 3(8) Nature Energy. 8 9

Climate change mitigation law and policy in Central and South America  141 sources by 2030, and Guatemala, planning to achieve 80 percent of electricity from renewable sources by the same year. Cuba and Ecuador, on the other hand, have stated ambitious goals in terms of installed capacity to generate electricity from renewable sources, of 2.144 MW and 2.828–4.382 MW respectively.16 Regarding the general landscape of the NDCs, there is no uniformity in the way the different countries in the region have set their respective goals. Some countries, such as Brazil and Argentina, propose their GHG reduction goals in relation to the absolute emissions registered in the baseline year (2005), whereas others such as Colombia, Costa Rica and Mexico have set their goals taking as a reference a business as usual (BAU) scenario. Chile, on the other hand, proposes a goal in terms of CO2 intensity, in relation to the country’s GDP.17 It is important to note that many countries have proposed in the NDCs both unconditional goals and conditional goals. The latter are dependent on the availability of funds and technology from the international community to support their efforts. According to a recent study commissioned by ECLAC, the projected emissions of the region by 2030 are of 4.7 Gt of carbon dioxide equivalent. The unconditional commitments would reduce this amount 13 percent in comparison to the BAU scenario, while the conditional commitments would bring the decrease to 23 percent (4.1 Gt of CO2 eq. and 3.6 Gt of CO2 eq. respectively). A scenario in accordance with the target of 2 °C increase in temperature would require a reduction of 32 percent compared with the BAU scenario and a reduction in accordance with a 1.5 °C temperature increase would require reductions of about 50 percent, totaling 2.3 Gt of CO2 eq.18 According to projections, the current unconditional goals for reduction of GHG emissions among LAC countries would be insufficient to achieve an increase of average temperature of less than 2 °C in relation to preindustrial levels (taken as a proportional contribution based on emissions per capita of the reductions required worldwide). The achievement of the conditional goals in the countries’ NDCs would bring the region closer to the required threshold; thus, the role of the international community to adequately coordinate and effectively provide financial and technological support for developing countries can be crucial for the LAC region. 1.1

Law and Policy for Compliance with the NDCs

Climate change as a complex regulatory subject must be tackled from an integral perspective, introducing changes at the core of many systems and institutions to produce results in different fronts and through varied actions. The programs targeting mitigation of GHG emissions would look substantially different than programs oriented towards adaptation, yet they address the same phenomenon and must be connected and mutually supportive to increase their chances of being successful. Not all countries have enacted specific laws and policies for implementing and achieving their respective NDCs, although most have a general legal framework addressing climate

J. Samaniego et al., n. 10, 43. Ibid., 51. 18 J. Samaniego et al., n. 10, 69. The calculation of the contribution per region/country to achieve the 1.5 °C and 2 °C targets in increase of temperature is based on the projections of the IPCC of the ‘carbon budget’ for each region/country, considering a relation approximately lineal between emissions, CO2 accumulation and the rises in average temperature. Ibid., 80. 16 17

142  Research handbook on climate change mitigation law change and putting in place institutional and governance resources to promote the reduction of GHG emissions, prevent deforestation and other causes associated with climate change and to incentivize practices that are compatible with low-carbon economic development. Examples of the first are Mexico and Brazil; in the second scenario are Colombia, Ecuador and Guatemala. Costa Rica, Venezuela and Chile are currently discussing legislative proposals for climate change laws, although there are already public policy instruments regarding climate change action. To successfully comply with the Paris Agreement’s obligations to regularly report progress, updating NDCs to be ever more ambitious, and sharing information about the status of GHG emissions in the terms of the agreement, these frameworks should include a reliable system of measurement, monitoring, collection, data management and reporting about GHG emissions and mitigation efforts. As the basis of national climate change law and policy, countries generally adopt a framework law or a similar instrument, sometimes with direct support in their respective constitutions. Only the general laws of Brazil, Guatemala, Honduras, Mexico and Peru specifically mention the NDCs as a means to achieve mitigation goals.19 Within this framework, sectoral laws and policy are enacted to implement specific actions following the objectives of mitigation (and often of adaptation) designed for the specific industry or economic sector. In some federal countries, such as Brazil and Mexico, some cities and states have enacted their own framework laws for climate change mitigation and adaptation.20 Within the general framework of climate change management, specific laws and policies are adopted at sectoral level. In the region, the main sectors concentrating on climate change mitigation efforts are energy, forest and land planning, agriculture and infrastructure (including waste management).21 In the energy sector, the measures aim to promote the diversification of the energy matrix by giving subsidies, state aid and tax incentives to projects that employ non-conventional energy sources, as well as creating programs to reward energy efficiency efforts. Regarding forests and land planning, the policies generally involve reducing deforestation, promoting sustainable land use, forest protection and payments and compensations for ecosystem services. In agriculture, the policies aim to introduce more efficient systems, sustainable land use, low-carbon crops and restoration of degraded areas. Finally, regarding cities and infrastructure, the policies focus on carbon capture and storage, low-carbon construction and buildings, recycling and efficient management of urban waste.22 In the overall landscape of energy use, measures in transportation systems deserve special attention. Some of the most all-encompassing strategies aim to enhance public transportation systems with electrical or hybrid vehicles, cleaner fuels (i.e. biofuels) and introduce market measures to incentivize the use of more environmentally friendly alternatives such as bicycles instead of cars. It is worth noting that the effectiveness of shifting to electricity instead of fossil fuels to mitigate GHG emissions will depend on the actual sources of the electricity in each country. In Colombia, for example, electricity is considered one of the cleanest energy alter-

J. Samaniego et al., n. 10, 85. See inter alia, Mexico City’s Law of Mitigation and Adaptation to Climate Change and Sustainable Development 2011; São Paulo’s State Policy of Climate Change 2009; Rio de Janeiro’s State Policy on Climate Change and Sustainable Development 2010 and Buenos Aires’ Law of Adaptation and Mitigation of Climate Change 2011. 21 J. Samaniego et al., n. 10, 98. 22 Ibid., n. 10, 97. 19 20

Climate change mitigation law and policy in Central and South America  143 natives because 69 percent of the electrical power is produced by hydropower, an alternative low on GHG emissions.23 ECLAC suggests that, in order for NDCs to be complied with in a timely manner and efficiently, there should be specific policies that allocate specific responsibilities in GHG reduction to the different sectors. This would allow the taking of complementary cross-cutting measures or the creation of internal markets to make compliance less expensive, and to combine actions across sectors and territories. This approach is only starting to be considered among the countries in the region.24 Although the region as a whole has done the job of formulating detailed strategies and action plans, and defining clear goals and indicators to measure their success, the implementation of these policies might present serious challenges. The next sections explore some of the identified challenges from the general and comparative perspectives.

2

OVERVIEW OF THE REGIONAL ISSUES IN THE CURRENT LANDSCAPE

2.1

The Crucial Role of International Cooperation

Article 9(1) of the Paris Agreement establishes the obligation of developed country parties to provide financial resources to assist the developing country parties with their mitigation and adaptation efforts. Article 10, in turn, recognizes the importance of cooperative action on technology development and transfer, and also establishes that ‘support, including financial support, shall be provided to developing country Parties for the implementation of this Article’,25 and Article 11 addresses capacity-building and the commitment of all parties to the agreement to enhance the capacity of developing country parties to implement it.26 In recognizing the importance of international cooperation for developing nations, at the COP 15 in 2009, developed countries pledged to mobilize US$100 billion per year by 2020 for climate action in developing countries.27 In 2016, several developed country parties worked together on a roadmap to achieve this goal.28 In the same year, the Organisation for Economic Co-operation and Development (OECD) anticipated that the amount of public adaptation finance was going to double in volume between 2013–14 and 2020, from a baseline of about US$41 billion in 2014.29 23 Kevin Steven Bohorquez Guevara, ‘La oferta hidráulica equivale cerca de 69% de la matriz energética del país’ La República (30 March 2019) https://​www​.larepublica​.co/​especiales/​minas​-y​ -energia​-marzo​-2019/​la​-oferta​-hidraulica​-equivale​-a​-cerca​-de​-69​-de​-la​-matriz​-energetica​-del​-pais​ -2842181 accessed 10 January 2021. 24 Alicia Bárcena et al., ‘La emergencia del cambio climático en América Latina y el Caribe: ¿seguimos esperando la catástrofe o pasamos a la acción?’, Libros de la CEPAL, No 160(LC/PUB.2019/23-P), Santiago, Economic Comission for Latin America and the Caribbean (ECLAC), 2020, 240. 25 Paris Agreement, n. 7, Article 10(6). 26 Ibid., Article 11(4). 27 For further discussion please refer to Chapter 11 of this book. 28 See UNFCCC, ‘Roadmap to US$100 Billion’ (2016) https://​unfccc​.int/​sites/​default/​files/​resource/​ climate​-finance​-roadmap​-to​-us100​-billion​.pdf accessed 8 November 2020. 29 OECD (2016), ‘Projecting climate finance to 2020’ http://​www​.oecd​.org/​environment/​cc/​oecd​ -climate​-finance​-projection​.htm accessed 8 November 2020.

144  Research handbook on climate change mitigation law By September 2019, however, the target had still not been achieved.30 In 2017 financing provided and mobilized for developing countries amounted to US$71 billion, according to an OECD report.31 Based on the previous data and in consideration of the 2020 global scenario, it is not unreasonable to question if the financial support will continue to come and if it will be increased in accordance with the developed countries’ pledge. As previously mentioned, countries are changing their national priorities to face the effects of the COVID-19 pandemic and international cooperation has proved particularly challenging to mobilize global efforts in a unified strategy that would protect the most vulnerable countries from being disproportionally affected by the health crisis. At the G20 virtual meeting in March 2020, the governments of Mexico and Argentina, among others, pleaded that the war against COVID-19 should not lead to deeper inequalities between developed and developing countries, and that the supplies of health equipment and medicines (and eventually, access to a vaccine) should be supervised by the UN to ensure inclusive and egalitarian access for all countries.32 So far, the efforts for a coordinated strategy based on solidarity and cooperation do not seem to have been fruitful. It is easy to find examples of how countries are not cooperating in the fight against the virus and are rather seeking to protect their own nationals at any cost, including by preventing other countries from accessing essential resources such as masks, medicines and medical equipment.33 At the 75th session of the UN General Assembly, held virtually in September 2020, the representatives of developing countries, including small developing island States, stressed the uneven burden they face in mitigating climate change and securing development financing.34 ECLAC projects the regional average GDP to decrease 9.1 percent in 2020, losing the gains in terms of poverty reduction, equality and income per capita that were achieved in the last

Valéry Laramée de Tannenberg, ‘Wealthy countries still failing on $100 billion climate finance pledge’ (Euractiv.com, 17 September 2019) https://​www​.euractiv​.com/​section/​climate​-environment/​ news/​wealthy​-countries​-still​-failing​-on​-100​-billion​-climate​-finance​-pledge/​ accessed 8 November 2020. 31 OECD, ‘Climate finance for developing countries reached USD 71 billion in 2017’ (13 September 2019) http://​www​.oecd​.org/​environment/​climate​-finance​-for​-developing​-countries​-reached​-usd​-71​ -billion​-in​-2017​.htm accessed 8 November 2020. 32 Henry Jiménez and Simone Lucatello, ‘Cambio Climático, Covid-19 y la transición inaplazable’ in Henry Jiménez Guanipa and Marisol Anglés Hernández (eds), La Emergencia Sanitaria Covid-19 a la luz de la emergencia climática (Fundación Heinrich Böll 2020) 27. 33 See, among others, Andrea Shalal, ‘WTO report says 80 countries limiting exports of face masks, other goods’ (Reuters, 23 April 2020) https://​www​.reuters​.com/​article/​us​-health​-coronavirus​-trade​-wto​ -idUSKCN2253IX accessed 9 November 2020; and Gordon Brown and Daniel Susskind, ‘International Cooperation during the COVID-19 Pandemic’ (2020) 36(1) Oxford Review of Economic Policy https://​ academic​.oup​.com/​oxrep/​article/​36/​Supplement​_1/​S64/​5863407 accessed 10 November 2020. 34 UN Press Release, ‘COVID-19 Pandemic Demonstrates Multilateral Cooperation Key to Overcoming Global Challenges, President Stresses as General Assembly Concludes Annual Debate’ (29 September 2020) https://​www​.un​.org/​press/​en/​2020/​ga12273​.doc​.htm accessed 10 November 2020. 30

Climate change mitigation law and policy in Central and South America  145 decade,35 in what they call ‘the biggest economic and social crisis of the region in decades, with very negative effects in employment, the fight against poverty and reduction of inequality’.36 In this scenario, international cooperation is more important than ever in order to sustain the projects and initiatives of developing countries in their commitments under the Paris Agreement which are at risk of getting derailed or de-funded under the pressure of the devastation caused by the COVID-19 pandemic.37 2.2

The Institutional and Economic Challenges

The increase of GHG emissions is naturally linked to economic growth and energy demands; transportation, manufacturing, production and food, etc. which consume fossil fuel energy, and some processes of urbanization and agriculture that may involve deforestation.38 This is why there is usually a correlation between a higher GDP and higher GHG emissions.39 Latin America and the Caribbean registered a predictable trend of increasing emissions between 1990 and 2005 as GHG emissions increased, on average 1.9 percent annually, while the economy grew 2.9 percent per year. However, between 2005 and 2014, the data shows that the economy continued to grow but GHG emissions decreased, mainly due to results in reducing deforestation rates.40 This shows a decoupling between the increase in GDP per capita and GHG emissions, characteristic of a low-carbon economy. The rate at which GHG emissions are distanced from the increase in GDP per capita is another indicator to measure compliance with GHG reduction targets. In the BAU scenario, the reduction rate predicted is 2 percent annually. This rate must be brought to 2.8 percent (40 percent more than BAU scenario) in order to comply with the unconditional targets, and to 3.6 percent to achieve the conditional targets. A scenario of less than 2 °C increase in the average temperature requires a rate of 4.4 percent, whilst a rate of 6.3 percent would be compatible with the 1.5 °C scenario.41 These projections mean that the efforts to ‘decarbonize’ the economy must be greater than anticipated, in order to ensure the targets are achieved without affecting the potential of the economy to grow and with it the government’s means to fulfill their constitutional goals and to ensure the well-being of citizens.

35 Alicia Bárcena, ‘Enfrentar los efectos cada vez mayores del COVID-19 para una reactivación con igualdad: nuevas proyecciones’ (ECLAC, 15 July 2020) https://​www​.cepal​.org/​sites/​default/​files/​ presentation/​files/​final​_200714​_version​_revisada​_ab​-ppt​_informe​_covid​_5​_15​_julio​.pdf accessed 10 November 2020. 36 ECLAC, ‘CEPAL y OIT analizan los desafíos laborales en América Latina y el Caribe tras la pandemia del COVID-19’ (20 May 2020) https://​www​.cepal​.org/​es/​noticias/​cepal​-oit​-analizan​-desafios​ -laborales​-america​-latina​-caribe​-tras​-la​-pandemia​-covid​-19​#:​~:​text​=​La​%20pandemia​%2C​%20que​ %20trae​%20consigo​,la​%20reducci​%C3​%B3n​%20de​%20la​%20desigualdad accessed 19 November 2020. 37 Jerome X. Walcott, Ministry of Foreign Affairs of Barbados, warned at the 75th UN General Assembly that the COVID-19 pandemic has derailed progress towards the achievement of the 2030 Agenda for Sustainable Development. See UN Press Release, n. 34. 38 J. Samaniego et al., n. 10. 39 See, for instance, the World Bank’s World Development Indicators. 40 J. Samaniego et al., n. 10, 65. 41 J. Samaniego et al., n. 10, 73.

146  Research handbook on climate change mitigation law From an economic perspective to climate change, a successful strategy must introduce significant changes in the development style and consumption patterns, from agricultural activities to energy production and consumption trends, in urban development and infrastructure, management of water resources, forests and biodiversity. A national climate change strategy compatible with these recommendations would need to be comprehensive, integrative and to set new deep foundations for economic development across sectors, with tremendous social and political repercussions. This scenario is still distant for most LAC economies. Some of the medium rent economies, such as that of Mexico, are largely dependent on resources from extractive industries, which increases their vulnerability to external factors outside their control; these resources are also linked to high GHG emissions (particularly fossil fuel industries).42 McGlade and Ekins stated in 2015 that, in order to achieve the goal of 2 °C temperature rise, one-third of the world’s oil reserves, 50 percent of natural gas and 80 percent of actual reserves of carbon should remain unused between 2010 and 2050,43 which implies that effective environmental policies should consider keeping most of the fossil energy sources underground indefinitely. This alternative could be a luxury that countries of the LAC region cannot afford, because it would entail renouncing significant economic resources that are needed to keep the countries afloat. Although a progressive change towards a fossil fuel-free economy is one of the most effective alternatives to mitigate climate change, the LAC countries that have made explicit commitments to phase out fossil fuels as energy sources and achieve zero-carbon economies in the medium term could be forced to re-evaluate their strategy in the economic circumstances. This would reduce the rate of decarbonization of the economy to even lower than projected, making it still more difficult to achieve the goals of the Paris Agreement. ECLAC has warned of the risks that, due to the economic recession and scarcity of resources, governments will prioritize only the current health emergency and drop the ball in relevant areas of sustainable development, postponing environmental and social agendas and even reversing policies necessary to ensure the long-term well-being of citizens, particularly in terms of climate change, biodiversity protection and energy transition. Several international meetings and conferences, such as the UNFCCC COP 26, have already been suspended or postponed.44 2.3

The Opportunities in the Land-Use Sector for Climate Action

At the 2019 COP meeting in Katowice (Poland), a global initiative to emphasize the role of forests in achieving the goals of the Paris Agreement was brought by several countries, resulting in the Ministerial Declaration of Katowice, ‘Forest for the Climate’, which has already been endorsed by 81 parties to the UNFCCC.

See EITI report for Mexico, available at https://​eiti​.org/​mexico accessed 11 January 2021. Christophe McGlade and Paul Etkins, ‘The Geographical Distribution of Fossil Fuels Unused When Limiting Global Warming to 2 °C’ (2015) 517 Nature 187. 44 ECLAC, n. 2, 14. 42 43

Climate change mitigation law and policy in Central and South America  147 The strategies for mitigation through land use, land-use change and forestry (LULUCF) had already been addressed in a number of UNFCCC COP decisions.45 According to Stern, reducing deforestation and promoting afforestation (conversion of long-time non-forested land to forest) could provide up to 30 percent of the cost-effective global mitigation potential.46 Deforestation of tropical forests alone was reported to be responsible for 10 percent of the world net carbon emissions.47 It is well known that the LAC region hosts some of the most important carbon sinks in the world. There are in the region over 935 million hectares of forests, equivalent in 2015 to 23 percent of the world total, of which 34 percent are primary forests.48 The emissions from agriculture, changes in land use and forestry amount to 42 percent of the total in LAC, representing a relevant opportunity for mitigation strategies. In Central America, 39 percent of the total extent of the territory is covered with forests, a total of 20 million hectares. But in 1990, there were 27 million hectares.49 This reduction is calculated in terms of carbon storage, dropping from 3 million tons of CO2 eq. in 1990 to 2.316 million in 2016, as well as the loss in the provision of ecosystem services, soil degradation, economic losses from forest production and even in energy sufficiency for rural communities that use wood for cooking and heating.50 Undoubtedly, the degradation of soil and ecosystems is contributing to GHG emissions and to climate change, and there is great potential for mitigation by sustainably managing these resources in the LAC region. There are opportunities to channel the efforts for mitigation of climate change towards the conservation of natural goods. The Reduction of Emissions from Deforestation and Degradation of Forests (REDD+) is another strategy and it is based on the provision of financial incentives to preserve forests and thus maintain carbon stocks in forest ecosystems, as well as to enhance forest management.51 Initially formulated as REDD at the UNFCCC COP 16, in 2010, the strategy was described as ‘a way to financially compensate developing countries for any reduction in emissions associated with a decrease in the conversion of forests to alternative land uses’.52 International cooperation in support of REDD+ and other forest protection solutions is crucial and has been relatively successful for the LAC region. Among the current examples, there is the Andes Action initiative, led by UNEP to restore one million hectares of high Andean forest ecosystems in Argentina, Bolivia, Chile, Colombia, Ecuador and Peru over the next 25 years,53 and the ‘Restoring Forests and Lands as a Crucial Response to Climate Change and Sustainable Development’ initiative, led by the International Union for the Conservation

Bruno Locatelli et al., ‘Forest and Climate Change in Latin America: Linking Adaptation and Mitigation’ (2011) 2 Forests 431, 433. 46 S. N. Stern, The Economics of Climate Change (Cambridge University 2006) 27. 47 Giulia Parola Lodovica Toffoletto, ‘El “acaparamiento de tierras y el cambio climático”: una oportunidad perdida del Acuerdo de París’ in Henry Jiménez Guanipa and Marisol Luna Leal (eds), Crisis climática, transición energética y derechos humanos (Tomo 1, Heinrich Böll Stiftung 2020). 48 Alicia Bárcena et al., n. 24, 97. 49 Ibid., 107. 50 Ibid., 110. 51 Bruno Locatelli et al., n. 45, 434. 52 Charlie Parker, Andrew Mitchell, Mandar Trivedi, Niki Mardas and Karin Sosis, The Little REDD+ Book (Global Canopy Foundation 2009). 53 Ibid., 190. 45

148  Research handbook on climate change mitigation law of Nature (IUCN) with the support of 59 countries that have made commitments in the framework of the Bonn Challenge.54 The Juma Sustainable Development Reserve Project implemented by the Amazonas Sustainable Foundation, in Brazil, was the first REDD project in Latin America to be validated in accordance with the Climate, Community and Biodiversity (CCB) Standards.55 Notwithstanding all the efforts put by the international communities and government to preserve and rehabilitate forest areas as part of their mitigation strategies, the rates of deforestation are alarming. According to a report by Global Forest Watch, in 2019 the region lost 11.9 million hectares of forests, of which 3.8 million were primary humid tropical forests, very important for biodiversity and carbon storage.56 In this context, there is potential for REDD+ and other land-use initiatives to take a higher position in the mitigation agenda, especially for countries that may see their aspirations to invest in a cleaner energy matrix and reduce their exploitation of fossil fuels truncated by the economic crisis brought about by the COVID-19 pandemic. Along the same lines, nature-based solutions (protection, restoration and sustainable management of ecosystems) and payment for environmental services can be promising alternatives to create jobs in conservation and sustainable use of biodiversity. This strategy combines mitigation and adaptation, and may be particularly suitable for the LAC region. Examples of these initiatives are the restoration of forests in highlands, which protect the communities in lower-lying zones from floods and also serve as carbon sinks, and the increase of green zones and trees in urban areas, which can have a cooling effect in cities, capture carbon and protect against air pollution.57 Among the multilateral agreements that support nature-based solutions are the Convention on Biological Diversity (CBD), the UNFCCC and the Paris Agreement, and Agenda 2030 comprising the action plan for the Sustainable Development Goals. According to ECLAC, restoring the natural patrimony by reforestation is a fundamental step in the decarbonization of the economies; it is one of the safest and least costly alternatives to carbon storage and can offer a service of value to the international community.58 The LAC region has a unique opportunity to take advantage of its privileged position in biodiversity and forest conservation to promote these initiatives and mobilize resources towards activities that will report benefits in terms of mitigation of GHG and adaptation to climate change.

The Bonn Challenge is a global goal to bring 150 million hectares of degraded and deforested landscapes into restoration by 2020 and 350 million hectares by 2030; https://​www​.bonnchallenge​.org/​ accessed 12 November 2020. 55 CCB Projects, The Climate, Community & Biodiversity Alliance, Arlington, VA, USA, 2011; http://​www​.climate​-standards​.org/​projects/​ accessed 15 November 2020. 56 See Mariela León, ‘Global Forest Watch: América Latina concentra la mayor deforestación de 2019’ (20 June 2020) https://​www​.cambio16​.com/​america​-latina​-concentra​-la​-mayor​-deforestacion​ -de​-2019/​#:​~:​text​=​Brasil​%20encabeza​%20la​%20lista​%20de​,estadio​%20de​%20f​%C3​%BAtbol​%20en​ %202019​%E2​%80​%9D accessed 19 November 2020. 57 Alicia Bárcena et al., n. 24, 185. 58 Ibid., 194. 54

Climate change mitigation law and policy in Central and South America  149

3

COMPARATIVE APPROACH: BRAZIL, COLOMBIA AND MEXICO

Having sketched the lines of the current status of climate change mitigation goals, strategies and challenges, this section analyses mores specifically these considerations for three countries: Brazil, Colombia and Mexico. Brazil has led the way in terms of voluntary commitments to reduce GHG emissions. Since 2009, through Law 12.187 (National Policy of Climate Change), Brazil established a voluntary commitment to reduce GHG emissions between 36.1 percent and 38.9 percent by 2020 (against a reference scenario).59 The law mentioned, as its main goals, to (i) promote the reduction of GHG emissions in the national territory; (ii) to define and implement measures to promote adaptation to climate change by the states, regions and municipalities; as well as social and economic sectors; (iii) to achieve the commitments subscribed before the international community; and (iv) to prevent higher costs that would result from inaction or postponing of climate action.60 An updated goal of Brazil aims to reduce emissions by 37 percent in 2025 and 43 percent by 2030, compared to 2005 levels. As an additional effort, a non-binding document was formulated with 47 actions to be the foundation of the country’s strategy for the implementation and founding of its NDC, entitled Proposta Inicial de Implementação da Contribuição Nacionalmente Determinada do Brasil (NDC).61 During the process, civil society was involved in different forums, as well as the academic and industry sectors. In terms of mitigation, the main actions relate to energy efficiency and promotion of renewables and the assessment of the availability of water sources to produce hydropower. The document also refers to reduction of deforestation, preservation of protected areas, decreasing GHG emissions from forest fires, re-establishment and expansion of native forests and creating a forest carbon registry, among other measures. Finally, the proposal includes the establishment, in the short term, of sectoral targets and a system to monitor, verify and report GHG emissions. Colombia, in turn, enacted its Law of Climate Change (No. 1931) in 2018, aiming to set the foundations for a low-carbon and climate-resilient development, reducing the risks of climate change and purporting to take advantage of the opportunities from its management. After the Paris Agreement, some of the specific policy and regulatory actions taken by Colombia include a national carbon tax on fossil fuels aimed to reduce GHG emissions from their utilization and to promote a transition to alternative energy sources.62 Additionally, through Decree 298 of 2016, the government created the National Climate Change System (SISCLIMA) for the coordination, articulation, monitoring and assessment of climate law and policy, with the participation of public and private entities and NGOs at all levels of government. As policy, Colombia prepared the Colombian Strategy of Low-Carbon Development (2011), including goals in the short, medium and long terms led by the Ministries of Mining

Angelo C. Gurgel et al., ‘The impacts of the Brazilian NDC and their contribution to the Paris Agreement on climate change’ (2019) 24 Environment and Development Economics 395, 396. 60 Law 12.187 of 2009 (Brazil), available (in Portuguese) at http://​www​.planalto​.gov​.br/​ccivil​_03/​ _ato2007​-2010/​2009/​lei/​l12187​.htm accessed 2 November 2020. 61 Fórum Brasileiro de Mudança do Clima, ‘Initial Proposal of Implementation of the National Determined Contribution of Brasil’ (2018). 62 Colombia Law 1819 of 2016 and Decree 926 of 2016. 59

150  Research handbook on climate change mitigation law and Energy, Environment and Sustainable Development, Agriculture and Rural Development, Housing, Transportation and Commerce, in order to define sectoral actions and measures to contribute to the country’s mitigation commitments. The sectoral strategies were later included in the Sectoral Action Plans for Climate Change Mitigation. The National Climate Change Policy was approved in 2016; it contains the guidelines to include climate change management in private and public decisions, in order to achieve a pathway to low-carbon development and to reduce the risks associated with climate change. It adds new elements to harmonize with other public policy instruments that already existed, such as the Low-Carbon Development Strategy and the Strategy for the Reduction of Emissions from Deforestation and Degradation of Forests (REDD+), towards compliance with the NDC.63 Colombia has recently submitted its updated NDC, setting an ambitious target to decrease 51 percent of GHG emissions in comparison with a BAU reference scenario by 2030.64 The updated NDC complies with the condition of making progressively more ambitious commitments, as the NDC submitted in 2018 proposed to decrease GHG emissions by 20 percent in 2030. At the COP 23, in September 2019, President Duque, of Colombia, adhered to the pledge to aim for carbon-neutrality in 2050.65 A legislative proposal is also going through congress to establish a ‘Climate Pact for the reduction of GHG emissions’; if approved, the law would officially establish the government’s commitment to reduce emissions by at least 30 percent compared to the reference year 2010 by 2030, at least 70 percent by 2040, and to achieve carbon-neutrality in net emissions of GHG by 2050.66 Mexico has adopted several climate change policy instruments, starting with the 1988 General Law of Ecological Equilibrium and Environmental Protection, which was updated in 2011 to include a section on climate change mitigation and adaptation. It was also one of the first countries in the region to enact a general climate change law, with the approval, in 2012, of its General Climate Change Law, establishing provisions to face the adverse effects of climate change and take regulatory actions for climate change adaptation and mitigation.67 To support the implementation of the law, a National Climate Change System (SINACC) was created, with a similar purpose and function to Colombia’s SISCLIMA. As specific sectoral measures, the Mexican government implemented in 2014 a special tax over the carbon content in fossil fuels used in the provision of products and services. Its purpose is to provide a disincentive for the consumption of fossil fuels through rising prices, and in this way contributing to decreasing GHG emissions. Through an amendment in 2018, Mexico modified its General Climate Change Law to adapt to its commitments under the Paris Agreement.68 63 Colombia’s Ministry of Environmental and Sustainable Development, available (in Spanish) at https://​www​.minambiente​.gov​.co/​index​.php/​politica​-nacional​-de​-cambio​-climatico accessed 8 November 2020. 64 See updated NDC submission (in Spanish) available at https://​www4​.unfccc​.int/​sites/​ndcstaging/​ PublishedDocuments/​Colombia​%20First/​NDC​%20actualizada​%20de​%20Colombia​.pdf accessed 11 January 2021. 65 Colombia Ministry of Environment and Sustainable Development, ‘NDC de Colombia – Actualización 2020’ (public consultation version, 5 October 2020). 66 Colombian Congress, Law Project 312-20 of the Senate, 30 September 2020. 67 General Climate Change Law (Mexico), 2012, available (in Spanish) at http://​www​.diputados​.gob​ .mx/​LeyesBiblio/​pdf/​LGCC​_130718​.pdf accessed 2 November 2020. 68 See Tania García López, ‘La Ley General de Cambio Climático mexicana, tras la entrada en vigor del Acuerdo de Paris’ in Henry Jiménez Guanipa and Marisol Luna Leal, Crisis climática, transición energética y derechos humanos (Tomo 1, Heinrich Böll Stiftung 2020).

Climate change mitigation law and policy in Central and South America  151 As part of its NDC, Mexico committed to reduce its GHG emissions by 22 percent between 2020 and 2030, and 51 percent of its emissions from black carbon.69 The current toolbox of climate change policies in Mexico includes a national policy of adaptation, a policy for the reduction of methane emissions from the oil and gas sector, a national policy of electromobility, the implementation plan for the NDC defining routes and alternatives for 2030 and a transition strategy to promote the use of cleaner fuels and technologies in the medium and long term. As previously mentioned, of the three countries, Brazil and Mexico have taken specific regulatory actions to include the NDCs in their national policy frameworks. In reviews of their sectoral policies, Mexico and Colombia have adopted carbon taxes to promote alternatives that are lower in GHG emissions. In the wake of the new economic, social and political landscape after the COVID-19 pandemic, however, the implementation of the regulations and policies might be affected, and the well-intentioned plans and strategies might have to be adjusted to the new circumstances. In Mexico, in response to the drop of oil prices due to less demand because of the measures in the face of the COVID-19 pandemic, the government issued a decree granting fiscal benefits for the fossil fuel industries equivalent to more than three billion dollars. In practice, the grant was meant to rescue the State-owned PEMEX, responsible for 97 percent of production of oil and gas in Mexico,70 and to support the political project of President Andrés Manuel López Obrador, who has promised to return the oil industry to its former glory.71 Mexico’s General Climate Change Law, adjusted in accordance with the country’s commitments in the Paris Agreement, added a paragraph in the mitigation strategy stating that climate change policy ‘must ensure that the baseline of the commitment for Mexico does not limit the country’s economic growth, and the productive sectors must participate in the formulation of the baseline, in coordination with the national organisms in charge of the economic policy’72 (emphasis added). This policy approach could stand in the way of Mexico’s compliance with its NDC in the presence of an imminent economic crisis, as suggested by the initiative to give fiscal benefits to the oil industry affected by the COVID-19 pandemic. Colombia’s policy also supports the country’s fossil fuel industries, which represented 8.6 percent of the government’s income in 2019.73 After the Council of State suspended the legislation that allowed the implementation of hydraulic fracturing with horizontal drilling (‘fracking’) for the exploitation of non-conventional hydrocarbon deposits, the government is

The General Climate Change Law defines ‘black carbon’ as ‘particulate material produced by incomplete combustion of fossil fuels or biomass, which contributes to global warming as a short-life climate pollutant’; General Climate Change Law, n. 67, art. 3. 70 Jon Martin Cullell, ‘El desencuentro de López Obrador con las petroleras privadas pone en riesgo el futuro de Pemex’ (17 January 2020) https://​elpais​.com/​economia/​2020/​01/​17/​actualidad/​1579290251​ _706091​.html accessed 11 November 2020. 71 Margarita Palomino Guerrero, ‘Estímulos fiscales al sector hidrocarburos frente a la emergencia sanitaria: aciertos y desaciertos’ in Henry Jiménez Guanipa and Marisol Anglés Hernández (eds), La Emergencia Sanitaria Covid-19 a la luz de la emergencia climática (Fundación Heinrich Böll 2020). 72 Mexico General Climate Change Law, n. 67, art. 31. 73 ElEspectador.com, ‘Colombia se pregunta: ¿Qué pasa si perdemos la autosuficiencia petrolera?’ (2 February 2020) https://​www​.americaeconomia​.com/​negocios​-industrias/​colombia​-se​-pregunta​-que​-pasa​ -si​-perdemos​-la​-autosuficiencia​-petrolera accessed 18 November 2020. 69

152  Research handbook on climate change mitigation law ready to implement four pilot research projects to gather information about the environmental impacts and social aspects related to the application of the technique in order to determine its feasibility for commercial exploitation.74 In this scenario, the resources and efforts may shift towards strategies in other sectors instead of energy, such as forestry and land use, where investments in mitigation, for example in nature-based solutions, also have an impact in terms of economic growth for vulnerable communities and adaptation to climate change, and in some cases may represent alternatives to reduce GHG emissions with relatively lower abatement costs.75 There are policies and regulations in place that support these initiatives. Reportedly, 32 percent of Brazil’s GHG emissions come from the agricultural sector, and 28 percent are due to land-use changes and deforestation, followed in the third place by fossil fuel energy use with 27 percent.76 Considering that Brazil produces about 35 percent of the total of GHG emissions in the LAC region,77 there is great potential for mitigation initiatives in the agricultural and land-use sectors. The national strategy to achieve its mitigation goals foresees emissions cuts from land-use changes and deforestation of about 24.7 percent, between 4.9 and 6.1 percent in agriculture and between 6.1 and 7.7 percent in energy. A recent analysis simulating different scenarios for Brazil’s compliance with its NDC suggests that reductions from land-use change and agriculture would be cheaper than in other sectors of the economy, at least until 2030.78 In Brazil, between 2001 and 2015, nine states passed laws and regulations for payment of ecosystem services, six had other types of regulation and eight had regulatory proposals in progress. Mexico has several initiatives of payment for ecosystem services that are financed by the government as measures for the protection of the environment. In 2018, the program ‘Sembrando Vida’ was created, under which rural farmers with low income are incentivized to produce agroforestry crops. For a minimum of 2.5 hectares, the farmers receive US$250 per month to support the project.79 In Colombia, the World Bank and the Fundación Centro para la Investigación en Sistemas Sostenibles de Producción Agropecuaria (CIPAV) carried out a project to assess the impact of payment for environmental services in the adoption of silvopastoral systems,80 giving ranchers between US$2,000 and US$2,400 to implement these systems. The results showed a reduction of 60 percent in degraded pastoral areas, an increase of 71 percent in carbon sequestration, an increase of 10 percent in milk production and of 115 percent in the establishment’s income.81 Improving techniques of cattle farming can also have an important impact on the region’s GHG emissions. This is usually done through three mechanisms: (i) improving the productivity and reducing the intensity of cattle emissions by improving the feeding, genetics, health

See Brent Patterson, ‘Colombia’s top court rules that fracking pilot projects can proceed despite moratorium’ (26 September 2019) https://​pbicanada​.org/​2019/​09/​26/​top​-court​-ruling​-allows​-fracking​ -pilot​-projects​-to​-proceed​-in​-colombia/​ accessed 18 November 2020. 75 Angelo C. Gurgel et al., n. 59, 407. 76 Ibid., 396. 77 J. Samaniego et al., n. 10. 78 Angelo C. Gurgel et al., n. 59. 79 Alicia Bárcena et al., n. 24, 195. 80 Agroforestry arrangements in which there is a combination between forage crops, graminaceous plants and legumes with bushes and trees for animal feed and other complementary uses. 81 Alicia Bárcena et al., n. 24, 196. 74

Climate change mitigation law and policy in Central and South America  153 and breeding of animals; (ii) managing carbon by restoring degraded soils through selective intensification of production, favoring biodiversity and climate, provision of critical ecosystem services, protection of water sources and carbon sequestration, and (iii) integrating cattle in the circular economy, for example, by using the organic waste to produce biofuels and improve recovery of nutrients. It is estimated that the rehabilitation of pastures and implementation of integrated systems could result in reducing the extent of cropped land by 1.4 million hectares, and pastureland by about 4–5 million hectares. This land could then be used for reforestation and forest rehabilitation.82 Brazil has taken steps in this direction through the creation of the ‘carbon-neutral beef’ certification, an audited scheme that certifies beef whose emissions are neutralized or captured during the production process. Another concept is ‘low-carbon meat’, which is produced with an adequate system of pasture management in which carbon emissions are captured, mitigating the emissions produced by the animals.83 The positive experience of silvopastoral systems has also been adopted in the Llanos region of Colombia to restore plots of land for agriculture at a low cost, while also improving the health of the cattle and complementing their feeding with grazing, as well as generating other ecosystem services. In this system, the ratio of land per animal is improved, with 2.5 animals per hectare, compared with the usual 0.8 animals per hectare with conventional systems.84 Colombia also has a significant potential of climate mitigation in the land-use and forestry sector. The country could compensate up to 55 percent of its annual emissions just by preventing deforestation and improving forest management, by reforestation activities, and by increasing forest areas in agricultural lands.85 According to the recently published draft of the National Policy for the Control of Deforestation and the Sustainable Use of Forests, 52 percent of Colombia’s territory is covered by forests, but between 2000 and 2019, 2.8 million hectares of forests were lost to deforestation, causing not only GHG emissions but also poverty, social displacement and a lower quality of life for rural populations. The main causes for deforestation in Colombia are attributed to illegal mining, illegal crops, land-grabbing, and the building of roads, and are usually linked to remote places with low presence of the state authorities. The majority of the country’s deforestation, 62 percent, occurs in the Amazonian forests.86 In 2018, the Colombian Supreme Court of Justice declared that the Amazonian region was a subject of rights, and issued a series of mandates to preserve and protect its natural resources.87 This input, added to the international commitments of Colombia to ensure the Ibid., 326. Ibid., 329. 84 J. Restrepo, ‘Una visión de ganadería sostenible desde AGROSAVIA’, Innovaciones en Producción cárnica con bajas emisiones de carbono: experiencias y desafíos en ALC. Resúmenes del evento realizado en Montería, Colombia, Santiago, Organización de las Naciones Unidas para la Alimentación y la Agricultura/ Corporación Colombiana de Investigación Agropecuaria (FAO/AGROSAVIA), 2018. 85 B. W. Griscom et al., ‘National Mitigation Potential from Natural Climate Solutions in the Tropics’ (2020) 375(20190126) Philosophical Transactions of the Royal Society B. 86 Colombia National Council of Economic and Social Policy (CONPES), ‘Política para el control de la deforestación y gestión sostenible de los bosques’ (Draft version for public comments, 23 October 2020). 87 Colombian Supreme Court of Justice, STC 4360 of 2018. Among the main mandates was the formulation of an action plan in the short, medium and long term to decrease the deforestation rates and to face the effects of climate change, as well as the creation of an ‘Intergenerational Pact for Life in the Colombian Amazon’. 82 83

154  Research handbook on climate change mitigation law preservation and sustainable management of forests, including under the mechanisms adopted in the framework of the Paris Agreement, are the basis for the formulation of the national policy, with the aim of reducing deforestation rates in 30 percent by 2022, and to achieve net zero deforestation by 2030.88 To support REDD+ initiatives for the protection of the Colombian forests and to promote sustainable development, in 2015 the country signed a Joint Declaration of Intention, a voluntary cooperation agreement with the governments of Norway, Germany and the United Kingdom, to implement result-based payments for the reduction of emissions from deforestation and forest degradation. This commitment was extended in 2019 in recognition of Colombia having reduced the emissions from deforestation in the Amazon between 2013 and 2016, and as an acknowledgment of the importance of supporting states in their efforts.89 Additionally, in 2019, Colombia, Brazil, Bolivia, Ecuador, Guyana, Peru and Suriname subscribed the ‘Leticia Pact for the Amazon’, committing to join efforts against deforestation and degradation of the Amazonian region through conservation initiatives and actions promoting sustainable development and well-being of the population.90 Mexico, in turn, was one of the top five countries for deforestation in the LAC region in 2019, having lost 321,000 hectares of forest,91 much of it due to fires, of which 98 percent are started by human causes. Forest resources are very important in Mexico’s economy and they represent 40 percent of the renewable energy sources.92 The comparative data shows that Brazil, Colombia and Mexico have assumed commitments to reduce their GHG emissions in a significant way in the next decade, and have adopted internal policies and regulations aimed to implement such commitments. All of the countries foresee potential reductions in diversifying their energy matrix with more renewable energy sources, but experts suggest that decisive actions in this field would require progressively phasing out fossil fuels as energy sources, a process that these countries may not be ready to undertake in the current health and economic crisis. A promising alternative would be to concentrate efforts on preventing emissions from land-use changes and deforestation, a field where Brazil, Colombia and Mexico have great room for improvement and which would return added benefits in terms of adaptation and social well-being.

4 CONCLUSIONS International climate change policy has evolved from an early stage in which developed countries were expected to assume great commitments to reduce GHG emissions while developing countries continued to increase emissions as their economies grew and became more industrialized, to a more egalitarian regime in which all countries must assume responsibility and are

CONPES, n. 86. Ibid., 3, 21. 90 Ibid., 20. 91 Global Forest Watch, https://​www​.globalforestwatch​.org accessed 18 November 2020. 92 Oshiel Martínez Chapa and Jorge Eduardo Salazar Castillo, ‘La protección a los bosques y la agenda del desarrollo en México’ (2019) 97 CIENCIA UANL http://​cienciauanl​.uanl​.mx/​?p​=​9328 accessed 18 November 2020. 88 89

Climate change mitigation law and policy in Central and South America  155 encouraged to make voluntary commitments to contribute to the common goal of maintaining average world temperatures under a certain threshold. The Paris Agreement reflects this approach, but it also distinguishes among the different capacities of developing and developed countries to finance and execute their climate change strategies effectively, which is why a fund of 100,000 million dollars annually was also a part of the international commitments to support developing countries’ efforts towards mitigation and adaptation. Without this help, Latin America and the Caribbean are far from achieving the goals in terms of reduction of GHG emissions, decarbonization of the economy and climate resilience that would be compatible with a global target of less than 2 °C increase in average temperature. It should not go unnoticed that the different strategies to reduce GHG emissions come with a high opportunity cost for LAC countries. Achieving a determined carbon limit or quota implies that some sectors must make sacrifices in terms of growth and production for others to function. A decision to keep oil and gas reserves underground, for example, can have very significant economic impacts in a developing country. As countries in the LAC region are still battling to overcome extreme poverty and ensure the provision of essential services to their citizens, the economic resources that will no longer come due to the GHG reduction strategies and those that implementation itself may take from their reserves could make a big difference in terms of quality of life, protection of human rights and achieving other important international priorities included in the Sustainable Development Goals. The vulnerability of these countries becomes evident in cases of disasters, economic breakdowns, civil war and, notably, in cases of health threats such as the COVID-19 pandemic. Without a solid institutional structure capable of sustaining the population through these difficult times, it is even harder to commit to ambitious goals for modernization of transportation, investment in energy efficiency, technological transformation and funds for research and development required to materialize many of the countries’ strategies for climate change mitigation. This is why international cooperation is crucial. This review of the cases of Brazil, Mexico and Colombia offers a glance at the institutional commitment and coordinated efforts that the region has assumed as part of its global responsibility for climate change mitigation. The strategies are solidly built, with the participation of important stakeholders, taking into consideration the countries’ potential, opportunities and vulnerabilities, but their implementation remains challenging and uncertain, as it demands significant resources, human, technological, institutional and financial, that the countries may lack.

7. Climate change mitigation law and policy in the Asia-Pacific Alexander Zahar

INTRODUCTION The aim of this chapter is to provide an assessment of the climate change mitigation effort of states in the Asia-Pacific region. State-led mitigation manifests in several ways, including through policies, laws, emissions trends, transparency in communication, and comparative mitigation ambition, all of which will be considered here. Regarding the ‘Asia-Pacific’ notion itself, this chapter does not contend that there is anything meaningfully distinct about the region to justify separate treatment of it.1 Rather, the category consists, in essence, of the countries not covered in the other parts of this book. (Thus China, although part of Asia, is not covered here.) But that is not to suggest that examining an ‘Asia-Pacific’ group of countries comprising around two billion people is not useful for understanding global mitigation action. The large number of countries in the Asia-Pacific and myriad differences among them offer an opportunity to elicit, through their comparative examination, insights of general interest—for this somewhat ad hoc regional grouping is a plausible cross-section of the world’s countries. Having noted this richness in difference, one is also mindful of the fact that a chapter on mitigation action is entitled to minimize the space allocated to small, low-emitting developing countries (of which there are many in the Asia-Pacific), considering that whatever effort they make to reduce their emissions will have at most a symbolic impact on bringing climate change under control. Accordingly, the logical place to begin a chapter on mitigation in the Asia-Pacific is with the greenhouse gas emissions from the region’s relatively populous or otherwise high-emitting countries. This information, as will be seen, instantly highlights both country differences and policy challenges, but also epistemological issues. The comparative analysis of emissions from selected Asia-Pacific countries (a total of 15 states with a combined population of more than 1.2 billion) is followed by a discussion on what is being done by their governments to bring emissions down. In this later part, the focus will be on law and policy.

Exceptionalist claims about the region are not backed by convincing evidence. See, for example, Isabelle Whitehead, ‘Climate Change Law in Southeast Asia: Risk, Regulation and Regional Innovation’ (2013) 16 Asia Pacific Journal of Environmental Law 141 (‘Southeast Asia is a frontier space in global climate governance and scholarship’); and Takako Morita and Christina Pak, ‘Legal Readiness to Attract Climate Finance: Towards a Low-Carbon Asia and the Pacific’ (2018) 12(1) Carbon and Climate Law Review 6 (‘The urgency of legal reforms to support the low carbon transition is greatest in Asia and the Pacific where climate change has affected virtually every aspect of people’s lives’). See also Ed Couzens and Tim Stephens, ‘Editorial: The Prospects for a Truly Regional Asian Pacific Environmental Law?’ (2017) 20 Asia Pacific Journal of Environmental Law 1. 1

156

Climate change mitigation law and policy in the Asia-Pacific  157 In addition to the epistemological concerns alluded to, this chapter is particularly interested in the extent to which climate change policy is being implemented through the law, on the assumption that a supportive legal scheme for mitigation can be taken as an indicator of how well-established (if not how ambitious) mitigation effort is in a country. The chapter would not be complete without an assessment of the relative mitigation ambition of countries in the Asia-Pacific. After all, the degree of effort that each country exerts, and how it compares with that of other countries (and with the collective effort needed to avoid global warming of 2 °C or more), is the main issue. Nevertheless, there is no straightforward way of carrying out such an assessment. One reason is the epistemological one I have already referred to twice: viz. that the completeness, transparency, and reliability of information on emissions, mitigation measures, developmental visions, etc., is not the same across the region. It is not just that it is difficult to assess relative mitigation effort in the best of circumstances, it is impossible to do so when the prerequisite information is absent or deficient. Still, an attempt at comparison of ambition will be made.

1

SOURCES OF INFORMATION

One of the major achievements of the United Nations Framework Convention on Climate Change (UNFCCC) has been the facilitation of regularly updated, high-quality information from states about how they are responding to the problem of climate change—and with what effect on their greenhouse gas emissions.2 As the state response has deepened and widened, so has the treaty-generated information about it. A good example of the UNFCCC’s role is its decades-long effort to raise the quality of state reporting on greenhouse gas emissions. Annex I parties to the Convention have been producing annual emissions inventories, called National Inventory Reports (NIRs), since 2003.3 Emissions information from the much larger group of non-Annex I (developing country) parties is steadily increasing, although there are still major gaps. A non-Annex I party is not required under the UNFCCC to submit an NIR, although it is expected to produce a National Communication (NC) at four-year intervals if it has the capacity to do so.4 To acquire the capacity necessary to compile an NC, financial assistance may be obtained from the Global Environment Facility (GEF). Most developing countries have produced only two or three NCs since the UNFCCC came into force,5 compared to the seven that Annex I parties have completed so far (in addition to their annual NIR).6 An NC details and contextualizes a state’s response to climate change. Annex I parties’ NCs contain only a summary of their historical greenhouse gas inventory, as the full inventory for each year since 1990 is available through the NIR process. For non-Annex I parties, an NC is to include an inventory for a recent year (no more than that is required).

At the time of writing (December 2020), the Paris Agreement’s own reporting system (known as the Enhanced Transparency Framework, or ETF) was not yet operational. 3 See https://​unfccc​.int/​ghg​-inventories​-annex​-i​-parties/​2020. 4 For details, see Alexander Zahar, International Climate Change Law and State Compliance (Routledge 2015). 5 Mexico stands alone in having published six NCs: see https://​unfccc​.int/​non​-annex​-I​-NCs. 6 Annex I parties’ eighth NC was due in December 2021. 2

158  Research handbook on climate change mitigation law NCs in general are sprawling reports (hundreds of pages long), consisting of a large variety of information. They are not issued frequently enough, or written in a focused-enough way, to serve as instruments of accountability for state action on the mitigation of emissions. In 2010, the Cancun Agreements committed both Annex I and non-Annex I parties to undertake mitigation efforts covering the period 2013–2020.7 This arrangement gave rise to a new type of report, with two variants: the Biennial Report (BR) for Annex I parties and the Biennial Update Report (BUR) for non-Annex I parties. Both variants are designed to be mitigation-focused and relatively short, in addition to being biennial. As with all national reporting under the UNFCCC, biennial reporting is legally obligatory for Annex I parties but not so for developing countries, many of which face capacity issues. BRs and BURs are both independently reviewed, by Expert Review Teams and Teams of Technical Experts, respectively. (The TTEs operate more ‘supportively’ than the ERTs.8) The BR/BUR reports’ advantages as information sources include that they enable the scholarly study of mitigation in jurisdictions that would otherwise be very difficult to access linguistically, or be difficult to access for other reasons, such as a lack of systematically produced information on mitigation. Another advantage is that the reports may be regarded as reasonably reliable because of the independent review process that awaits them. Naturally, states would rather avoid any formal criticism of their reports. This chapter relies heavily on information drawn from the UNFCCC’s biennial reporting system to characterize mitigation law and policy in the Asia-Pacific. There are limitations to this approach. First, we must assume that all states ‘greenwash’ their mitigation performance, presenting it in the best possible light. The prospect of independent review does not constrain greenwashing. Second, while developing-country BURs are an invaluable resource and are competently produced even by the least-wealthy developing countries (on the basis of financial support from the GEF),9 they are not being submitted at the expected frequency (i.e. biennially) by all Asia-Pacific countries. Quite a number of them have yet to submit even a first BUR.10 Major information gaps therefore remain, as will be made clear below.

7 COP (UNFCCC), ‘Decision 1/CP.16, (“The Cancun Agreements”): Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention’, FCCC/CP/2010/7/ Add.1 (2010). 8 The author of this chapter serves as a member of ERTs and TTEs. 9 E.g. Indonesia, ‘Second Biennial Update Report under the United Nations Framework Convention on Climate Change’ (Directorate General of Climate Change, Ministry of Environment and Forestry 2018), I-10; Laos, ‘First Biennial Update Report’ (Ministry of Natural Resources and Environment 2020), I; Malaysia, ‘Third National Communication and Second Biennial Update Report to the UNFCCC’ (Ministry of Energy, Science, Technology, Environment and Climate Change 2018), 217; Papua New Guinea, ‘First Biennial Update Report to the United Nations Framework on Climate Change’ (Climate Change and Development Authority 2018), 15. 10 Asia-Pacific countries with no BUR submitted to date include Bangladesh*, Bhutan*, Brunei, Democratic People’s Republic of Korea, Fiji, Kazakhstan, Myanmar*, Nepal*, Pakistan, the Philippines, Samoa, and Sri Lanka (among others). The reasons for these instances of non-submission are not publicly known. In the case of the larger of these countries—Bangladesh, Pakistan, and the Philippines—their National Communications (dating to 2018, 2018, and 2014, respectively) have been used in this chapter as an alternative source of information. However, the NCs of developing countries cannot be considered as reliable as BURs, because they are not subjected to independent review. Above, several countries are marked with an asterisk. These are least developed countries (LDCs). Cambodia and Laos, which are LDCs, have submitted a BUR. LDC status alone, therefore, does not explain non-submission.

Climate change mitigation law and policy in the Asia-Pacific  159

2

GREENHOUSE GAS EMISSIONS

Table 7.1 shows the greenhouse gas emissions per capita for each of the 15 selected Asia-Pacific countries, based on their most recent inventory at the time of writing (December 2020). Note that, in the table, the emissions and ‘removals’ from the land use, land-use change, and forestry (LULUCF) sector are, in effect, separated out from emissions from other economic sectors. This is the conventional practice in accounting for greenhouse gas emissions. LULUCF emissions or removals are significant in most of the countries examined. The reason for reporting their estimates separately is their relatively high uncertainty.11 They cannot be left out of the picture, but, at the same time, they cannot be taken at face value. In interpreting the information in Table 7.1, it is necessary to proceed with caution. To begin with, the inventory year is not the same for all countries. The three Annex I parties in the Asia-Pacific (Australia, Japan, and New Zealand) had already published their 2017 inventory at the time of writing, whereas the region’s developing countries lagged behind by one or more years. For example, Laos had managed to produce only one BUR (published in 2020), based on a national inventory for 2014. The Philippines was exceptional in having no recent inventory to report, a fact that renders it a black box in this exercise. Yet, even for developing countries other than the Philippines, the comparison attempted in Table 7.1 is far from ideal. Some, like Vietnam, have strongly growing economies, which cause strong increases in emissions from year to year. Vietnam’s per-capita emissions in 2017 were probably significantly higher than they were in 2013—which is the year of its most recent inventory. Different rates of population growth in the region also contribute to weakening the accuracy of the comparisons in column 5 of the table, because such growth strongly affects emissions growth from year to year. In brief, Table 7.1’s figures on per-capita emissions would be different if all countries were reporting on an inventory for the same year. Second, the inventories from which the table’s figures are drawn are not all complete, nor are they equally reliable. The most reliable inventories are those of the Annex I parties. As noted in the previous section, Annex I parties are thoroughly practised in producing them, with permanent systems in place to do so. Their inventories (the NIRs) are moreover subjected to an independent quality-assurance process, carried out by the aforementioned Expert Review Teams (which also review Annex I parties’ NCs and BRs). The ERTs test the NIRs for completeness and other qualities that go to reliability. The developing-country inventories, by contrast, are not only not reviewed, most do not account for all of the greenhouse gases that Annex I parties are required to account for.12 For example, they leave out the industrial Thailand, for example, calculates that while the combined uncertainty of its estimated emissions from non-LULUCF sectors in 2013 was 5.54%, for the LULUCF sector it was 29.29%: Thailand, ‘Second Biennial Update Report’ (Ministry of Natural Resources and Environment 2017), 29. Thailand is ‘REDD+ ready’ (see ibid., 12), meaning that emissions data on its LULUCF sector are of a relatively high quality. (REDD+ is a UNFCCC programme to protect forests in developing countries.) For countries with less advanced forest-monitoring systems than Thailand’s, LULUCF uncertainty can be much higher. Vietnam, for example, which is not as advanced as Thailand with the REDD+ programme (see Vietnam, ‘Second Biennial Update Report to the United Nations Framework Convention on Climate Change’ (Ministry of Natural Resources and Environment 2017), 88–90), reports a LULUCF uncertainty of 61.6%: ibid., 39. 12 For the greenhouse gases covered by the climate treaties, see UNFCCC, ‘Decision 24/CP.19, Revision of the UNFCCC Reporting Guidelines on Annual Inventories for Parties Included in Annex I to the Convention’, FCCC/CP/2013/10/Add.3 (2013), Annex I, para. 28. 11

160  Research handbook on climate change mitigation law Table 7.1 Country

Per-capita emissions in selected countries of the Asia-Pacific, based on the most recent country inventory Inventory

Population (in IY)

year (IY)

Total emissions (Mt CO2 eq.)

Per-capita emissions (t CO2

[inc.]

eq.) [inc.]

554.1 [534.7]

22.5 [21.7]

Australiaa

2017

24,598,900

Bangladeshb

2012

151,000,000

n/a [152.3c]

n/a [1.0]

Cambodiad

2016

15,770,000

32.6e [163.6]

2.1 [10.4]

Indonesiaf

2016

261,600,000

822.3g [1,457.8h]

3.1 [5.6]

Japani

2017

126,800,000

1,291.7 [1,234.3]

10.2 [9.7]

Koreaj

2016

51,250,000

694.1 [649.6]

13.5 [12.7]

Laosk

2014

6,640,000

n/a [24.1l]

n/a [3.6]

Malaysiam

2014

29,870,000

317.6 [50.5]

10.6 [1.7]

New Zealandn

2017

4,794,000

80.9 [56.9]

16.9 [11.9]

Pakistano

2015

199,400,000

397.7 [408.1]

2.0 [2.1]

Papua New Guineap

2015

8,108,000

13.5 [15.2]

1.7 [1.9]

Philippines

2000q

76,504,077

not comparable

not comparable

Singaporer

2014

5,470,000

50.8 [50.9s]

9.3 [9.3]

Thailandt

2013

68,140,000

318.7 [232.6]

4.7 [3.4]

Vietnamu

2013

90,750,000

293.3 [259.0]

3.2 [2.9]

Notes: Mt/t CO2 eq. = megatonne/tonne carbon-dioxide equivalent; n/a = not available; [inc.] = including LULUCF emissions and removals. a Australia, ‘Fourth Biennial Report’ (Department of the Environment and Energy 2019), 4. b Bangladesh, ‘Third National Communication to the United Nations Framework Convention on Climate Change’ (Ministry of Environment, Forest and Climate Change 2018), v–vi. c Emissions of carbon dioxide (CO2), methane (CH4), and nitrous oxide (N2O) only: ibid., v–vi. d Cambodia, ‘First Biennial Update Report to the United Nations Framework Convention on Climate Change’ (General Secretariat of the National Council for Sustainable Development/Ministry of Environment 2020), xvi. e Emissions of CO2, CH4, N2O, and hydrofluorocarbons (HFCs) only: ibid., xv. f Indonesia, ‘Second Biennial Update Report’, 1-4. g Emissions of CO2, CH4, and N2O only: ibid., 1-5. h This figure includes emissions from peat fires: ibid., 1-5. An explanation of the history of peat fires in the Asia-Pacific region is given by Malaysia in its 2016 Nationally Determined Contribution (NDC), page 4: ‘In the 1960s and 70s, peatlands were considered a wasteland and draining was considered an effective rehabilitation to improve the productivity. Some of these drained peatlands are now unmanaged and are susceptible to wildfires during the dry seasons. It is also expensive to re-wet these areas.’ NDCs are available at the UNFCCC’s website: https://​www4​.unfccc​.int/​sites/​NDCStaging/​Pages/​All​.aspx. i Japan, ‘Fourth Biennial Report under the United Nations Framework Convention on Climate Change’ (Ministry of the Environment 2019), 4. j Republic of Korea, ‘Third Biennial Update Report under the United Nations Framework Convention on Climate Change’ (Ministry of Environment 2019), 6. k Laos, ‘First Biennial Update Report’, ii. l Emissions of CO2, CH4, and N2O only: ibid., 17. m Malaysia, ‘Second Biennial Update Report’, xxxiv.n New Zealand, ‘Fourth Biennial Report under the United Nations Framework Convention on Climate Change’ (Ministry for the Environment 2019), 16–17. o Pakistan, ‘Second National Communication on Climate Change to United Nations Framework Convention on Climate Change’ (Ministry of Climate Change 2018), 20–21. p Papua New Guinea, ‘First Biennial Update Report’, 20. q No greenhouse gas inventory has been compiled by the Philippines since the year 2000: Philippines, ‘Second National Communication to the United Nations Framework Convention on Climate Change’ (Climate Change Commission 2014), 27. The only inventory pre-dating the 2000 inventory is one for 1994. To avoid an improper comparison with other countries, the Philippines’ emissions data for the year 2000 have not been included in the table. r Singapore, ‘Fourth National Communication and Third Biennial Update Report under the United Nations Framework Convention on Climate Change’ (National Environment Agency 2018), 66. s Singapore’s LULUCF sector accounted for only 1/16th of 1 Mt CO2 eq. in 2014. t Thailand, ‘Second Biennial Update Report’, iv–v. u Vietnam, ‘Second Biennial Update Report’, 25.

Climate change mitigation law and policy in the Asia-Pacific  161 gases or only report methane emissions from oil and gas production but not from other sectors. Moreover, the lowest calculation ‘tier’ (the least accurate one) is used by developing countries to report emissions from almost all emissions categories.13 Then there is LULUCF uncertainty. As indicated at the start of this section, many Asia-Pacific developing countries have large LULUCF sectors. For these, emissions uncertainty can easily reach 100% in the absence of the kind of sophisticated, systematically developed, satellite-monitored, and ground-proofed data employed by Annex I parties. Accordingly, Indonesia’s per-capita emissions including LULUCF might have been around 5.6 tonnes CO2 eq. in 2016, as shown in Table 7.1, but they might in fact have been much higher (or lower) had Indonesia been in a position to produce a more complete and reliable inventory. In the literature, one often sees figures on per-capita emissions treated as telling comparators between countries, especially in comparisons between developed and developing countries. However, in most such cases it is a comparison of apples and oranges. Moreover, as explained further below, even genuine differences between the per-capita emissions of different countries are far from straightforward in their implications, and can be misleading.14 Table 7.1, therefore, is the beginning of a discussion, not its conclusion. As part of that discussion, we may note that while the table draws the reader’s attention to its last column (per-capita emissions), the more interesting information as far as the future control of climate change is concerned might be column 3: population size. Were Australia to reduce its per-capita emissions by 1 tonne CO2 eq. and Indonesia to increase its own by the same amount, global emissions would increase by the significant amount of 237 Mt CO2 eq. per year, because Indonesia’s population is more than ten times that of Australia. Indonesia’s population is indeed expected to grow by 35 million people (from the 2016 figure shown in the table) by 2030.15 It is therefore far more important that Indonesia’s per-capita emissions do not increase (by very much), than that Australia’s decrease (by a lot). While this proposition is indisputably true and forms the main rationale for climate finance and for the international trading of emissions allowances, including through such programmes as the Clean Development Mechanism, it would be almost certainly rejected out of hand by Indonesia, which has its sights set on economic expansion. To put the same point differently and politically more neutrally: per-capita emissions say little about where the bulk of future emissions will come from. The next table takes information from Table 7.1 to create two top-ten lists based on countries’ per-capita emissions. One list excludes, and the other includes, net LULUCF emissions and removals. Cambodia occupies radically different positions in the two rankings, and the difference in standing of Malaysia and Laos, depending on the column, is also remarkable.

13 E.g., Laos, ‘First Biennial Update Report’, 17; Pakistan, ‘Second National Communication’, 21; Papua New Guinea, ‘First Biennial Update Report’, 28; Vietnam, ‘Second Biennial Update Report’, 21. Even Singapore uses Tier 1 for most emissions estimates: Singapore, ‘Fourth National Communication’, 20. Thailand is closer to Singapore than to the other developing countries in the group in using higher tiers for some of its estimates: Thailand, ‘Second Biennial Update Report’, 27. Annex I parties, by contrast, mostly use higher tiers in their reporting. On the tier system, see Subsidiary Body for Scientific and Technical Advice (UNFCCC), ‘Updated UNFCCC Reporting Guidelines on Annual Inventories Following Incorporation of the Provisions of Decision 14/CP.11’, FCCC/SBSTA/2006/9 (2006). 14 The figures seen in the literature are usually biased against Annex I parties for being limited to the non-LULUCF sectors, which make a higher contribution to the emissions of Annex I parties. See Table 7.2, below. 15 Indonesia, ‘Second Biennial Update Report’, I-1.

162  Research handbook on climate change mitigation law Table 7.2  

Exc. LULUCF

1

Australia

2

Top ten per-capita emitters in the Asia-Pacific (data from Table 7.1) t CO2 eq.  

Inc. LULUCF

t CO2 eq.

22.5  

Australia

New Zealand

16.9  

Korea

12.7

3

Korea

13.5  

New Zealand

11.9

4

Malaysia

10.6  

Cambodia

10.4

5

Japan

10.2  

Japan

9.7

6

Singapore

9.3  

Singapore

9.3

7

Thailand

4.7  

Indonesia

5.6

8

Vietnam

3.2  

Laos

3.6

9

Indonesia

3.1  

Thailand

3.4

10

Cambodia

2.1  

Vietnam

2.9

21.7

Australia, which is almost in a class of its own with its per-capita emissions, does not budge from the number one 1 spot, while the two other Annex I parties stay in the top five. But, as may been seen, two developing countries are also in the top five. Why is there an interest in comparing countries’ per-capita emissions? One answer is that it is a measure that highlights countries’ differential use of ‘atmospheric space’. Those with high per-capita emissions appropriate atmospheric space faster than other countries. In this thinking, available atmospheric space is delineated by a carbon budget that corresponds to the objective of keeping global warming below 2 °C (or 1.5 °C, or 500 parts per million CO2 eq., or another limit). It is apparent from Table 7.1 that people in the 15 Asia-Pacific countries help themselves to very different shares of the implied budget depending on where they live. True though this observation may be, it is hard to say what follows from it. There is, of course, no rule of international law that provides that every individual’s share in an atmospheric budget should be equal to everyone else’s. Such a notion would in any case be too simplistic, as it disregards ‘innocent’ differences in national circumstances. For example, Australia’s per-capita emissions are more than twice those of Singapore’s, but Singapore is a compact country (a large city), with low transport emissions. Moreover, it has no agricultural sector to speak of, whereas Australia’s farmers working the country’s vast expanses supply much of Asia with agricultural produce. It does not necessarily follow that Australians are unfairly appropriating more atmospheric space than Singaporeans. Figures on per-capita emissions also cannot be read as evidence in themselves that one country’s mitigation efforts are more (or less) ambitious than those of another. What the information presented above can do is highlight puzzles about the region that might generate interesting research questions. For example, Table 7.2 indicates that Malaysia has a strongly mitigating LULUCF sector, whereas Cambodia’s is very weak—so weak, indeed, that it puts its per-capita emissions on a par with New Zealand’s when net LULUCF emissions are included in its per-capita emissions. Why is there this difference between Malaysia and Cambodia? Does it point to a failure of Cambodia with respect to forest conservation? Could Cambodia learn something from Malaysia? Per-capita emissions figures certainly provide clues about differing national circumstances and about sectors in which mitigation effort may be strong or lacking. In addition to per-capita emissions measured at a point in time, it is also important to consider emissions trends over time. Table 7.3 presents what is known about emissions from the main emitters in the Asia-Pacific region over an eight-year period. As is apparent from Table 7.3, emissions from the three Annex I parties were essentially stable over the eight-year period. Australia’s LULUCF sector shows evidence of increasing

Climate change mitigation law and policy in the Asia-Pacific  163 Table 7.3

Emissions trends in selected countries of the Asia-Pacific region, 2010–2017, in Mt CO2 eq., excluding and including LULUCF

Country

2010

2011

2012

2013

2014

2015

2016

2017

Australiaa

537.3

538.3

540.6

530.4

525.0

535.2

546.8

554.1

586.0

567.7

558.7

537.7

533.1

531.6

530.4

534.7

-

-

-

-

-

-

-

-

-

-

152.3

-

-

-

-

-

26.3

-

-

-

-

30.1

32.6

-

157.3

-

-

-

-

161.1

163.6

-

690.0

740.0

790.0

750.0

790.0

810.0

822.3

-

1115.0

1355.0

1480.0

1349.8

1770

2372.5e

1457.8

-

1305.1

1356.1

1398.8

1410.3

1362.2

1323.6

1307.9

1291.7

1234.6

1286.2

1326.0

1344.1

1297.7

1264.0

1253.3

1234.3

657.4

683.0

687.1

696.7

690.9

692.9

694.1

-

603.0

628.7

638.0

652.0

648.3

650.1

649.6

-

-

-

-

-

24.1

-

-

-

Bangladeshb Cambodiac Indonesiad Japanf Koreag Laosh Malaysiai New Zealandj Pakistank Papua N. G.l

-

-

-

-

-

-

-

282.8

283.5

302.6

309.9

317.6

-

-

-

44.7

40.9

42.4

47.4

50.5

-

-

-

79.0

78.7

81.1

80.5

81.3

81.2

79.1

80.9

47.8

52.1

55.5

57.4

55.4

55.9

54.3

56.9

-

-

364.8

-

-

397.7

-

-

-

-

374.1

-

-

408.1

-

-

7.2

7.4

7.5

7.9

9.1

13.5

-

-

7.0

9.5

5.1

11.8

10.0

15.2

-

-

Philippinesm

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

Singaporen

-

-

-

-

50.8

-

-

-

Thailando Vietnamp

-

-

-

-

50.9

-

-

-

314.9

314.3

324.8

318.7

-

-

-

-

250.0

243.3

240.0

232.6

-

-

-

-

273.3

-

-

293.3

-

-

-

-

252.6

-

-

259.0

-

-

-

-

Notes: The first line next to each country excludes LULUCF emissions and removals, whereas the second line includes them. a Australia, ‘Fourth Biennial Report’, 96. b Bangladesh, ‘Third National Communication’, 100. c Cambodia, ‘First Biennial Update Report’, xvi. d Indonesia, ‘Second Biennial Update Report’, 2–35. e Extensive forest fires in 2015 account for this anomaly in the series: ibid., 1-7/8. f Japan, ‘Fourth Biennial Report’, 224. g Republic of Korea, ‘Third Biennial Update Report’, 59. h Laos, ‘First Biennial Update Report’, ii. i Malaysia, ‘Second Biennial Update Report’, 54 and 169. j New Zealand, ‘Fourth Biennial Report’, 202. k Pakistan, ‘Second National Communication, 20–21 and 36. l Papua New Guinea, ‘First Biennial Update Report’, 21. m The country’s last inventory was for the year 2000. See corresponding note to Table 7.1. n Singapore, ‘Fourth National Communication’, 66. o Thailand, ‘Second Biennial Update Report’, 33. p Vietnam, ‘Second Biennial Update Report’, 37 and 41.

removals (or decreasing deforestation), counteracting a slight upward pressure on its emissions from the non-LULUCF sectors (energy, industrial processes, agriculture, and waste). Japan’s LULUCF sector’s removals are declining slightly,16 while its emissions in the other sectors curve upwards to 2013, then return to 2010 levels in 2017. It is too early to tell whether Japan’s

This is due to the maturity of its forests: Japan, ‘Fourth Biennial Report’, 4.

16

164  Research handbook on climate change mitigation law non-LULUCF emissions are now finally trending downward, although its government claims that they are.17 The country is not experiencing any of the pressures of population growth that are a feature of Australia’s and New Zealand’s national circumstances.18 So Japan’s government might be right about the downward trend. By contrast with the overall flatness of emissions from the Annex I parties, emissions from the developing countries in the Asia-Pacific region for which trend information exists (thus not counting Bangladesh, Laos, the Philippines, and Singapore) are steadily increasing, not only in the non-LULUCF sectors but also in the LULUCF sector. Note, for example, Indonesia’s unambiguous yearly increase in its non-LULUCF emissions, paralleled by its emphatic net annual LULUCF contributions, which presumably would have been much worse had Norway not committed US$1 billion as of 2010 to help Indonesia to stem deforestation.19 The sole exception to this pattern is Thailand, with emissions flat in the non-LULUCF sectors and removals improving in the LULUCF sector. The contrast between the two categories of countries is as expected. On the one hand, there is a steady growth in emissions in the non-Annex I group of countries, which operate without real constraints in this regard under all three of the climate treaties. The growth in their emissions is expected to continue until at least 2030 (see next section). On the other hand, Annex I parties, having already reaped all the low-hanging fruit of emissions reductions, are now travelling along an emissions plateau. Only Japan, with its negative population growth, might be on a downward-sloping exit ramp. Perhaps unexpected are the signs of a deterioration in the LULUCF sectors of the Asia-Pacific’s developing countries: the region’s tropical forests are net sources of emissions, not net sinks.20 Overall, the trends might be said to be discouraging: emissions and yet more emissions. It bears reiterating that the information in Table 7.3 on emissions from developing countries is so patchy for most of them that few conclusions on overall trends can reliably be drawn.

3

MITIGATION TARGETS

Is the discouraging picture painted by actual emissions improved once mitigation targets (i.e. planned future emissions) are considered? The practice of target setting, which began for Annex I parties with the Kyoto Protocol’s coming into effect in 2005, was widely adopted by developing countries following the Cancun Agreements in 2010 and has become the central feature of the Paris Agreement in the form of nationally determined contributions (NDCs). This brings us to Table 7.4. Reading through the

Japan NDC 2020, 1. Australia’s population grew by 2.57 million people (11.7%) between 2010 and 2017, and New Zealand’s by 443,000 (10.2%). Japan’s population decreased over the same period by 1.3 million people (−1%). All population data in this chapter are from the World Bank. 19 Bradley Evans, ‘Land Use, Land Use Change and Forestry: Asia-Pacific’, in Geert Van Calster, Wim Vandenberghe, and Leonie Reins (eds), Research Handbook on Climate Change Mitigation Law (Edward Elgar Publishing 2016), 344–58 at 355. 20 Alerts about the decimation of tropical forests have of course been with us for a long time (see, e.g., FAO, ‘The World’s Forests’ (1993) www​.fao​.org/​3/​t0829e/​T0829E04​.htm; and Evans (n. 19), 357–8). Emissions data merely confirms what we knew from other sources. 17 18

Climate change mitigation law and policy in the Asia-Pacific  165 Table 7.4

Internationally declared mitigation targets of Asia-Pacific countriesa

Country

Mitigation target for 2030 (or for the 2021–2030 period)

Australia

Reduce emissions by 26–28% below 2005 levels by 2030. Economy-wide target. To be developed into an emissions budget, covering the period 2021–2030. (Cf. Australia’s mitigation targets under the Kyoto Protocol’s first and second commitment periods: 8% above 1990 levels, and 0.5% below 1990 levels, respectively. The latter is equivalent to 13% below 2005 levels by 2020.)

Bangladesh

Unconditional contribution to reduce emissions by 5% (= 12 Mt CO2 eq.) from BAU levels by 2030 from the power, transport, and industry sectors only. The target rises to 15% subject to the provision of international support in the form of finance, investment, technology development and transfer, and capacity building.

Cambodia

Mitigation contribution as a whole for the period 2020–2030 is conditional upon the availability of international support. Target to reduce emissions by a maximum of 27% by 2030, compared with the BAU level, in the energy, industry, and waste sectors.b For the LULUCF sector, a combination of voluntary and conditional actions are to increase forest cover to 60% of national land area by 2030 (from 57% in 2016).

Indonesia

Unconditional reduction target of 29%, and conditional reduction target of up to 41%, of the BAU scenario in 2030. This scenario is projected to be 2,869 Mt CO2 eq. emissions, including LULUCF, in 2030. The separate conditional target is subject to international support in the form of finance, technology transfer, and capacity building.

Japan

Reduction of 26.0% by 2030 compared to 2013 (25.4% reduction compared to 2005). (Japan’s target under the Kyoto Protocol’s first commitment period was a 6% reduction from 1990. Japan did not have a Kyoto Protocol target in the second commitment period, but made a UNFCCC pledge: 3.8% reduction from 2005 levels by 2020.)

Korea

Reduction of 37% from BAU by 2030 (BAU = in 2030 estimated at 850.6 Mt CO2 eq.). Whether this will cover the LULUCF sector or not had not yet been decided by Korea at the time of its first NDC submission. Carbon credits from international market mechanisms will be used to achieve the 2030 target.

Laos

Subject to the provision of international support (> $1.1 billion requested): increase the share of renewable energy to 30% of energy consumption by 2025. For transport fuels, increase the share of biofuels to meet 10% of the demand for transport fuels by 2025. Road-network development will be undertaken to reduce the number of kilometres travelled by vehicles. New large-scale hydropower plants will provide clean electricity to neighbouring countries: 20,000 MW of additional hydroelectric capacity is planned for construction after 2020.

Malaysia

Reduce emission intensity of GDP by 45% by 2030 relative to 2005. (Emissions in 2005 = 288.7 Mt CO2 eq., including LULUCF. Emission intensity of GDP in 2005 = 0.531 tons CO2 eq. per thousand Malaysian ringgit. Gases covered: CO2, CH4, N2O only.) This consists of 35% unconditionally and 10% on condition of receipt of climate finance, technology transfer, and capacity building from developed countries.

New Zealand

Reduce emissions to 30% below 2005 levels (corresponds to 11% below 1990 levels) for the period 2021–2030. To be managed using a carbon budget for the period. Equates to a commitment to keep emissions for the period capped at approximately 601 Mt CO2 eq. Intention to use international market mechanisms, cooperative approaches, and carbon markets that enable use of a wide variety of outcomes.c (New Zealand’s target under the Kyoto Protocol’s first commitment period was 0% change from 1990. It did not have a Kyoto Protocol target in the second commitment period, but made a UNFCCC pledge: 5% reduction from 1990 levels over the period 2013–2020.)

Pakistan

Under BAU, emissions in 2030, including LULUCF, are projected to be 1,603 Mt CO2 eq. Peaking of emissions under BAU is expected to take place much later than 2030. An ‘exponential increase of GHG emissions for many decades is likely to occur before any decrease’, according to Pakistan.d Target: reduce emissions up to 20% of BAU by 2030 subject to availability of international grants to meet the total abatement cost of the 20% reduction, amounting to about US$40 billion.

166  Research handbook on climate change mitigation law Country Papua New Guinea

Mitigation target for 2030 (or for the 2021–2030 period) Paucity of data limits to CO2 only the gases considered for mitigation, except for the oil and gas sector, where CH4 fugitive emissions are included. The liquefied natural gas (LNG) industry, established in 2011, is expected to grow at a rapid pace. LNG production is energy intensive, and the industry’s growth will cause an increase in emissions, according to the country’s NDC. BAU CO2 emissions in 2030 could reach 18 Mt CO2 per year (including CO2 eq. emissions of CH4 from the oil and gas sector). Mitigation opportunities are extremely limited (as stated in the NDC) if economic growth progresses at current rates and the oil and gas sector expands as anticipated, other than in the forestry sector by implementing REDD+ activities in the context of adequate and predictable support. The country’s main mitigation contribution would be in terms of a replacement of fossil-fuel electricity generation with renewable energy sources. Only one quantified target is presented: close to 100% carbon-free electricity by 2030, conditioned on support (the nature of which is not specified). Other mitigation targets are not clearly specified.

Philippines

Reduction of about 70% from the non-LULUCF sector by 2030 relative to BAU. Assumptions on BAU: historical GDP for 2010–2014 with an average annual growth of 6.5% for 2015–2030; and average annual population growth of 1.85%. Contribution is wholly conditioned on the extent of internationally supplied financial resources, as well as technology development and transfer, and capacity building.

Singapore

To reduce emission intensity by 36% from 2005 levels by 2030, with the aim of peaking emissions at 65 Mt CO2 eq. around 2030. Full coverage of sectors and gases. (Emissions in 2005: 40.9 Mt CO2 eq.; GDP in 2005 (at 2010 prices): S$232.77 billion.) Target to be achieved through domestic efforts, but will consider international market mechanisms to support achievement if necessary. (Singapore’s target for the period to 2020 was to reduce its emissions by 16% below 2020 BAU levels; i.e. the earlier target was not expressed as an intensity target.e)

Thailand

To reduce emissions by 20% below the BAU level in 2030 (BAU = in 2030 estimated at 555 Mt CO2 eq.). A higher target of 25% below BAU is subject to enhanced and adequate access to international financial resources and support for technology development and transfer, as well as capacity building.

Vietnam

With domestic resources, by 2030 to reduce emissions by 8% compared to BAU (a reduction of 62.7 Mt CO2 eq.), consisting of a reduction in emission intensity per unit of GDP of 20% compared to 2010; and an increase in forest cover to 45%, from 41% in 2013. BAU emissions in 2030, not including those from industrial processes: 787.4 Mt CO2 eq. Conditional contribution: increase the 8% target to 25% (a reduction of 197.9 Mt CO2 eq.) if international support is received through bilateral and multilateral cooperation and through the implementation of the Paris Agreement’s Article 6(4) trading mechanism; in which case, emission intensity per unit of GDP will be reduced 30% compared to 2010. All sectors and gases are included, except as indicated.

Notes: The mitigation targets are detailed in each country’s NDC (along with adaptation targets, not summarized here) submitted pursuant to the UNFCCC and Paris Agreement (BAU = business as usual). a See the compilation of NDCs at https://​www4​.unfccc​.int/​sites/​NDCStaging/​Pages/​All​.aspx. New Zealand and Singapore each updated their NDC in 2020. b Cambodia, ‘First Biennial Update Report’, xviii. c In New Zealand’s update of its NDC, dated 22 April 2020, the country outlined its ‘new domestic target’ legislated in its Climate Change Response (Zero Carbon) Amendment Act 2019, namely to reduce net emissions other than emissions of biogenic methane to zero by 2050, and to reduce emissions of biogenic methane to 24–47% below 2017 levels by 2050, including to 10% below 2017 levels by 2030. It is not clear how, if at all, these targets affect the NDC target summarized in the table. d Pakistan NDC 2016, 27. e Singapore, ‘Fourth National Communication’, 11.

table’s list of targets, the reader may wish to consider whether any conclusions could be drawn about which are ambitious and which are not. Several important points emerge from the information presented in Table 7.4. I have arranged them under five headings.

Climate change mitigation law and policy in the Asia-Pacific  167 3.1

Use of BAU Emissions to Delineate the Mitigation Target

In comparison with the absolute reduction targets of Annex I parties, BAU-referenced targets, which are the target type preferred by most developing countries, are highly uncertain, as they are projections based on multiple assumptions about the future. See, for example, the Philippines’ target in Table 7.4. The assumptions may not be as conservative as they should be, and the BAU estimate may be too high as a result, allowing the developing country to commit to an impressive-sounding target that in fact requires little mitigation effort. Note Indonesia’s BAU for 2030, which is projected as a doubling of the country’s emissions in 2016. Indonesia does not explain how it calculated its BAU emissions for 2030. For Pakistan, BAU emissions in 2030 are four times the 2015 level. In Vietnam’s case, the chosen target is an example of a complex target, with an emission-intensity target making up part of the BAU target. Despite the emission-intensity component, Vietnam still has a BAU target. Targets fully expressed as emission-intensity targets, such as Malaysia’s,21 are more reliable than BAU targets, because they do not involve any counterfactual reasoning. However, they allow for unlimited growth in emissions. Another problem with the developing-country targets in Table 7.4, in particular with the BAU targets, is that they are not always economy-wide. They are often limited to certain sectors (see, e.g., Bangladesh and Laos), and to certain gases in those sectors, meaning that the mitigation target for the country is incomplete. Such a target allows for unlimited emissions increases in the non-covered sectors or for the non-included gases. 3.2

The Targets Are Not Straightforwardly Comparable

Baseline years for emissions (i.e. years used for historical reference, such as 1990) are not fixed in countries’ target-setting. Mitigation targets will often be referenced to a baseline year in which emissions were unusually high, which makes those targets sound grander than they would be otherwise. It is possible to convert a target referenced against a given baseline year into a target referenced against a different one, but the calculation involved is not a simple one and most observers are not able to carry it out. Another comparison problem is that some countries give final-year targets, whereas others give period targets managed through a budget. Again, conversion is possible, but not easy. Even when two targets denominated in the same way are compared, such as the Korean and Indonesian targets for 2030 (37% and 29% below BAU, respectively), it is still not possible to tell from this information alone whether one is more ambitious than the other. One would need to know, for example, about the assumptions that lie behind each target, such as the assumptions on which BAU calculations were based. 3.3

Conditioning of Targets on the Provision of International Support

The mitigation targets of developing countries in Table 7.4, with the exceptions of Korea and Singapore, are partially or wholly conditioned on internationally sourced climate finance, technology transfer, or capacity-building support (or all three). Of these, the targets of Cambodia, Laos, Pakistan, and the Philippines are wholly conditioned on such support.

Malaysia, ‘Second Biennial Update Report’, xxxv.

21

168  Research handbook on climate change mitigation law Conditional targets do not offer much precision or predictability, as they are not really ‘targets’ at all—they are merely mitigation potentials that largely depend for their fulfilment on the actions of Annex I parties (i.e. how much ‘support’ they will make available globally). In a few cases, the funding amounts requested for mitigation support have been stated explicitly; e.g. US$40 billion for Pakistan’s 20% reduction from BAU by 2030, and US$247 billion for Indonesia’s conditional target (costed for the full 2018–2030 period).22 These amounts, averaging US$4 billion and US$19 billion per year, respectively, over the relevant periods, just for Pakistan and Indonesia, are far higher than any climate finance received by any country so far.23 (Requests for adaptation support are even costlier.) Developing countries’ conditional NDC targets are an extension of the larger political issue about who is ‘at fault’ for climate change, and therefore who should take the lead in addressing its causes and who should provide what quantity of support and in what form. Most Annex I parties reject this framing, a fact that contributes to the essential meaninglessness of conditional targets. 3.4

Conditioning of Targets on the Existence of an International Market for Greenhouse Gas Emissions Allowances

The Annex I parties, plus Korea and Singapore, also condition their targets, but in a different way than developing countries. These countries plan to rely on international emissions-trading markets to achieve parts of their mitigation targets. This indicates that the potential for cost-effective domestic mitigation in these countries is severely limited. The problem with conditioning targets on international markets is that hardly any such markets exist. At the time of writing, Article 6 of the Paris Agreement (international emissions trading) had not been operationalized, due to disagreements among parties to the treaty. If well-functioning international markets are not set up soon, or if Annex I parties to the Paris Agreement are allowed to use surplus allowances from the Kyoto Protocol’s first commitment period to meet their NDC commitments,24 then some of these conditional targets are rendered partly illusory. 3.5

Mitigation Targets Are Not Necessarily Environmentally Friendly or Consistent with the Aims of Other Multilateral Environmental Agreements (MEAs)

Laos’s target, which is built on a plan to massively expand hydropower (a leap from 3,000 MW to 23,000 MW of installed hydropower),25 indicates that environmental values promoted by other MEAs will be threatened in the course of implementing targets pursuant to the Paris Agreement. Laos’s target, moreover, rests on the questionable claim that an expansion of the

Indonesia, ‘Second Biennial Update Report’, I-8. Cf. the miniscule amounts (by comparison) that Indonesia received in 2015–2016: ibid., I-10. In 2020, the Asian Development Bank’s climate financing from its own resources for mitigation stood at just US$4 billion per year for the whole program: Morita and Pak, ‘Legal Readiness’ (n. 1), 8. 24 On the huge amount of surplus allowances held by most Annex I parties, see, for example, New Zealand, ‘Fourth Biennial Report’, 44. 25 Laos, ‘First Biennial Update Report’, ii. 22 23

Climate change mitigation law and policy in the Asia-Pacific  169 country’s road network will reduce total vehicle kilometres travelled.26 For various reasons (including access to finance), these two targets are potentially unachievable. In light of the above points and the significant gaps in developing-country inventories discussed earlier in this chapter, it will be close to impossible to determine whether (most) developing countries are delivering on the targets summarized in Table 7.4, unless the data gaps are quickly filled and the targets are more carefully spelled out. For a country such as the Philippines, which has not produced an inventory of its emissions since 2000, mitigation targets are little more than well-intentioned abstractions in the absence of complete and reliable inventories. It follows that, for the declared targets to have meaning, domestic monitoring, reporting, and verification (MRV) of emissions in developing countries must be brought up to speed urgently. I will return to this point in the next section. Clearly, also, the targets that assume the existence of international emissions-trading markets (i.e. the targets of all three Annex I parties in the Asia-Pacific) are cause for concern. A second observation with which to conclude this section is that the incongruous and somewhat surrealistic picture that emerges from bringing all the targets together in one list (Table 7.4) is perhaps not very encouraging. I venture to suggest that greater uniformity and comparability are expected from the Paris Agreement’s implementation.

4

LAW AND POLICY

The general context outlined above is one of non-declining emissions in the Asia-Pacific region. In addition, most mitigation targets are oriented towards emissions growth and are incomplete, difficult to interpret or compare with each other, and conditioned on expectations about the future that are uncertain. What might usefully be added to this picture by a state-level analysis of mitigation law and policy? This section examines the extent and depth of implementation of mitigation law and policy in the countries of the Asia-Pacific in order to enable an assessment of mitigation ambition across the region. Below, I discuss the Asia-Pacific’s main law and policy issues under nine subheadings. 4.1

Maturity of Mitigation Policies and Mitigation-Supporting Regulation in the Asia-Pacific

All Asia-Pacific countries have some form of mitigation policy, although in some cases it does not appear to go much beyond the adoption of the NDC targets summarized in Table 7.4. In a few cases, mainly confined to the Annex I parties, mitigation policy has a long history (stretching back 20 years, more or less) with much of it solidly grounded in the domestic legal systems of those countries. Australia,27 Japan28 and New Zealand29 all have powerful climate change legislation in place that informs day-to-day climate policy and goes so far as to remove some aspects of it from the hands of the government and invest it in expert, independent

Cf. the more realistic assessment by the Philippines of its future transportation emissions: Philippines, ‘Second National Communication’, 16. 27 Australia, ‘Fourth Biennial Report’, 21, 30–31, 36, 38. 28 Japan, ‘Fourth Biennial Report’, 50. 29 New Zealand NDC 2020 Update, 1–2; New Zealand, ‘Fourth Biennial Report’, 32–3. 26

170  Research handbook on climate change mitigation law commissions.30 This is the reverse of the dynamic found in the region’s developing countries, where centralized policy instruments dominate31 and are occasionally strengthened by being incorporated into regulation32 or pre-existing legislation.33 Alternatively, any purpose-specific legislation in place in these countries tends to be a mere shell that does little work.34 Korea35 and Singapore36 are close to the Annex I parties in terms of strength, institutionalization, and integration of their climate change legislation. Malaysia is not far off.37 Korea38 and New Zealand39 have emissions-trading systems, and Singapore as of 2019 has a carbon tax.40 (Japan does not have an ETS, nor does it have a carbon tax as such.41) Having an ETS is a sure sign that mitigation policy is felt throughout the economy, even if the allowance ‘cap’ at any given time is not particularly tight. Compared with a carbon tax, an ETS is legislation-heavy and difficult to change once up and running. (About a decade ago, in Australia, nothing less than a change of government was needed to dismantle its nascent carbon tax, which had been due to evolve into an ETS. The new government replaced it with an incentive system, legally almost as complicated as an ETS.42) Countries that set up an ETS cannot be said to be without mitigation ambition. Differences in ‘maturity’ are, of course, a problem for a region when it comes to implementing mitigation targets in NDCs, none of which are simple to account for. 4.2

Plans for Development and Economic Growth in Developing Countries Tend to Overwhelm Mitigation Planning

All NDCs and biennial reports, but especially those of developing countries, are, at this point in time, more accurately thought of as justified carbon growth plans rather than mitigation commitments in a strong sense. Carbon growth, which was once potentially limitless and called for no justification, is now still potentially limitless but must be justified: ‘A rapidly growing country like Bangladesh needs a huge amount of energy to achieve its development targets. [As a result] GHG emissions are expected to increase by 150% by 2030 from their 2011 levels’43—so runs the justification by the government of Bangladesh. Cambodia’s GDP stood at US$1,561 per capita in 2018. In the same year, Australia’s was around US$54,000 per E.g. ibid., 33. E.g. Cambodia, ‘First Biennial Update Report’, xviii–xix, 16. 32 E.g. Laos, ‘First Biennial Update Report’, 26; Indonesia, ‘Second Biennial Update Report’, 3-3; Papua New Guinea, ‘First Biennial Update Report’, vii. 33 E.g. Vietnam, ‘Second Biennial Update Report’, 16; Cambodia, ‘First Biennial Update Report’, xx; Morita and Pak, ‘Legal Readiness’ (n. 1), 13. 34 Pakistan, ‘Second National Communication’, 81; Philippines, ‘Second National Communication’, 57; Papua New Guinea, ‘First Biennial Update Report’, 13. Scholarly comment on some of these instruments has been unjustifiably upbeat; see, e.g., Whitehead, ‘Southeast Asia’ (n. 1), 142, 151, 173. 35 Republic of Korea, ‘Third Biennial Update Report’, 7, 13–14, 18, 35. 36 Singapore, ‘Fourth National Communication’, 56. 37 Malaysia, ‘Second Biennial Update Report’, xxxiii. 38 Republic of Korea, ‘Third Biennial Update Report’, 13, 33–4. 39 New Zealand, ‘Fourth Biennial Report’, 34. 40 Singapore, ‘Fourth National Communication’, 11. 41 Japan, ‘The Long-Term Strategy under the Paris Agreement’ (Cabinet Decision, June 2019), 111–12. 42 See Jonathan Verschuuren, ‘Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative’ (2017) 7(1) Climate Law 1. 43 Bangladesh, ‘Third National Communication’, vii. 30 31

Climate change mitigation law and policy in the Asia-Pacific  171 capita.44 Cambodia, quite naturally, ‘aspir[es] to attain upper middle-income status by 2030’, complete with new international airports to fly in seven million tourists annually,45 and in the meantime is proud of its average economic growth rate of 8% between 1998 and 201846 and for having lowered the poverty rate from 48% of the population in 2007 to 14% in 2014.47 Having laid down their developmental visions, countries such as Bangladesh and Cambodia proceed to detail the vast increases in greenhouse gas emissions that will be needed to realize them. Maximization of economic growth is the paramount value in these narratives.48 If the rate of emissions growth weakens in the process, as it has in Malaysia,49 for example, this is regarded as good progress and quite sufficient for the moment. Overwhelmingly, this is the narrative of pre-2020 Asia-Pacific BURs, which is at once entirely understandable and highly problematic.50 Some scholars have sought to resolve this tension by characterizing developing countries, such as Pakistan, as ‘victims of climate change’.51 Whether or not one agrees with this representation, it is safe to say that Annex I parties and developing countries tend to understand ‘mitigation law and policy’ differently. 4.3

The Establishment of Permanent MRV Systems for Greenhouse Gas Emissions and Removals is a Priority for Developing Countries in the Region if they are to Account for their Mitigation Targets

Severe shortcomings in MRV systems are experienced in many Asia-Pacific developing countries. In Bangladesh, for example, agricultural activities are not continuously or even regularly monitored for their emissions. Data is so lacking that not even the uncertainty level of the emissions reported by Bangladesh for this sector can be calculated.52 Cambodia concedes a ‘lack of national expertise to develop the national GHG inventory on a continuous basis’.53 Indonesia, despite having based its system for the preparation of its national greenhouse gas inventory on a ministerial regulation (i.e. on a relatively solid legal basis),54 has cautioned that none of its claimed achievements in emissions reductions have been verified.55 The reason is

Australia, ‘Fourth Biennial Report’, 10. Cambodia, ‘First Biennial Update Report’, 14. 46 Ibid., x. 47 Ibid., xi. 48 See, e.g., Indonesia, ‘Second Biennial Update Report’, I-3; Laos, ‘First Biennial Update Report’, 8; Pakistan, ‘Second National Communication’, 4; Philippines, ‘Second National Communication’, 13; Papua New Guinea, ‘First Biennial Update Report’, iv; Vietnam, ‘Second Biennial Update Report’, 12. Adaptation to climate change would then be the second paramount value; see Whitehead, ‘Southeast Asia’ (n. 1), 146. 49 Malaysia, ‘Second Biennial Update Report’, xxxv. 50 For a similar conclusion, see Whitehead, ‘Southeast Asia’ (n. 1), 186. 51 Emily Barritt and Boitumelo Sediti, ‘The Symbolic Value of Leghari v. Federation of Pakistan: Climate Change Adjudication in the Global South’ (2019) 30(2) King’s Law Journal 203, 205. 52 Bangladesh, ‘Third National Communication’, 73. 53 Cambodia, ‘First Biennial Update Report’, xxiii. 54 Indonesia, ‘Second Biennial Update Report’, 2-1; see also ibid., 3-7. 55 Ibid., I-6. 44 45

172  Research handbook on climate change mitigation law that implementation funding for its inventory system is ad hoc.56 When international grants are exhausted, work on MRV is likely to stop.57 Where uninterrupted MRV capacity does exist, it has often grown around project work, such as emissions-reduction projects under the CDM, REDD+, or Japan’s Joint Crediting Mechanism (JCM).58 While MRV systems aimed at achieving NDC implementation (specifically) do exist in a few Asia-Pacific developing countries, they were still in their planning stage in 2020.59 In some other countries, they were not even being planned.60 It took Annex I parties 20 years to build MRV systems up to an acceptable level of quality, an advantage that has allowed them to transition to the Paris Agreement’s Enhanced Transparency Framework almost effortlessly. Developing countries, even if they could move twice as fast (ten years instead of twenty), will not have acceptable MRV systems in place before 2030. An urgent start to work on this dry and unexciting, yet foundationally important, level of ‘mitigation ambition’ is therefore essential. 4.4

Extent of Regional Cooperation on Mitigation Effort

The factor of regional cooperation may serve as an indicator of the maturity of mitigation law and policy in the Asia-Pacific region (cf. section 4.1 above), albeit at a level of smaller networks. In a region which, in this respect, is advanced, one expects to see cooperation on mitigation challenges, such as linked emissions-trading schemes and cross-border trade in renewable energy, as well as ‘softer’ forms of cooperation (technology exchanges, joint research projects, etc.). In the Asia-Pacific, examples of cooperation on mitigation are modest.61 The most notable among them is Japan’s aforementioned JCM. The JCM may be thought of as Japan’s own version of the CDM—although with important differences.62 Credits generated by JCM projects in developing countries help Japan to meet its domestic mitigation targets.63 The programme got underway in 2013 and had 17 ‘partner countries’ by 2019, including Bangladesh, Cambodia, Laos, Thailand, and Vietnam.64 (JCM credits cannot be accepted under the Paris Agreement for the purpose of demonstrating Japan’s achievement of its NDC targets, because, unlike the case of the Kyoto Protocol, partner countries also have NDC targets, which would lead to double-counting of emissions reductions if both Japan and the credit source country were allowed to claim the reduction. This problem could be overcome Ibid., I-10. Laos, ‘First Biennial Update Report’, i. 58 E.g. Cambodia, ‘First Biennial Update Report’, xiii; Laos, ‘First Biennial Update Report’, 29; Papua New Guinea, ‘First Biennial Update Report’, viii; and Thailand, ‘Second Biennial Update Report’, vi. 59 E.g. Cambodia, ‘First Biennial Update Report’, xiv; Malaysia, ‘Second Biennial Update Report’, xliv; Papua New Guinea, ‘First Biennial Update Report’, 13–14. 60 Papua New Guinea, ‘First Biennial Update Report’, viii. 61 Merely modest cooperation in related areas of environmental concern has also been noted by: Ben Boer, ‘International Environmental Law’, in Simon Chesterman, Hisashi Owada, and Ben Saul (eds), The Oxford Handbook of International Law in Asia and the Pacific (Oxford University Press 2019) 170–204 at 190. 62 Justin Dabner, ‘Should Australia Introduce a Japanese Style Joint Crediting Mechanism?’ (2018) 35 Environmental and Planning Law Journal 659, 663. 63 Japan, ‘Fourth Biennial Report’, 48. 64 Ibid., 186. 56 57

Climate change mitigation law and policy in the Asia-Pacific  173 if Japan were able to convince the Paris Agreement parties to accept the JCM as a form of the Kyoto Protocol’s Joint Implementation mechanism, instead of the CDM; in that case, the source country would not be allowed to claim the reduction.65) Despite its widespread uptake in the Asia-Pacific, the JCM has so far not produced any significant amount of abatement: a mere 15 Mt CO2 eq. from 160 projects.66 Japan surely deserves credit for the JCM’s regional cooperation ambition; however, by 2020 the programme had not yet grown beyond the pilot stage.67 New Zealand’s Aid Programme, which is focused on the Pacific region,68 and the country’s Pacific Partnership with the European Union,69 have each contributed funds and expertise to Pacific Island nations for mitigation purposes70 and together represent the second most noteworthy (but still very modest) example of cooperation in the region. 4.5

Difficulties in Expanding Renewable Energy at Scale

A large-scale build-up of renewable energy may be beyond the reach of most Asia-Pacific countries. The causes of this important limitation in regional mitigation potential differ from country to country. For Singapore, its small size and dense urban landscape limit or exclude uses of solar and wind energy, let alone nuclear power.71 Its main mitigation policies, as a consequence, are waste-to-electricity production and energy efficiency. However, the low-hanging fruit of these and other options (such as fuel-switching to natural gas) were already picked some time ago.72 Despite an inability to significantly increase renewable energy, Singapore was ranked fourth in the world for sustainability in the 2018 Sustainable Cities Index, which makes the Index appear somewhat misleading in the context of the concerns of this chapter, considering that Singapore has no stated policy pathway forward to wean itself off its dependence on natural gas.73 Several developing countries mention renewable energy as having developmental ‘potential’ in their jurisdiction, which is, however, limited in practice due to shortfalls in international climate finance, technology (e.g. relating to power stability concerns), training (including in demand-side management), or supportive regulation.74 Korea, which has an annual mandatory supply rate for renewable energy, has increased its supply from 2% in 2012 to 5% in 2018, and the mandatory rate has been increased to 10% beyond 2023.75 Whether or not this represents high ambition for Korea given its national circumstances, the amounts involved seem modest: over the period 2012–2017, the share of renewable-energy generation in the country’s total

A hint of this may be found at ibid., 119. Ibid., 186; see also 135. 67 Dabner, ‘Joint Crediting Mechanism’ (n. 62), 665, 667. 68 New Zealand, ‘Fourth Biennial Report’, 108. 69 Ibid., 118–19. 70 Ibid., 109. 71 Singapore, ‘Fourth National Communication’, 11. 72 Ibid., 11. 73 Ibid., 56. 74 E.g. Cambodia, ‘First Biennial Update Report’, xxiii; Papua New Guinea, ‘First Biennial Update Report’, 10. 75 Republic of Korea, ‘Third Biennial Update Report’, 37. 65 66

174  Research handbook on climate change mitigation law power-generation mix increased by an annual average of just 0.77% over six years.76 Malaysia had a target for renewable-energy installations of 2,065 MW and 3,484 MW by 2020 and 2030, respectively;77 in its own words, it represents only a ‘moderate’ increase over the decade, due to the country’s self-identified ‘overdependence on fossil fuels’.78 Bangladesh’s installed renewable energy capacity is only 2.8% of total power-generation capacity.79 Vietnam has mapped out an ambitious-sounding growth programme for renewable energy through to 2050 (32% of primary energy consumption by 2030 and up to 44% by 2050), but the budget for it had not been determined and its BUR is ambiguous as to whether the programme is conditioned on receiving climate finance.80 Hydropower is frequently the only form of renewable energy to make a significant contribution to the energy profile of countries in the Asia-Pacific.81 It contributes 4% to Malaysia’s primary energy supply;82 however, it has no growth potential in that country.83 Vietnam’s hydropower is at about the same level as Malaysia’s, but growing slowly.84 Cambodia’s hydro-generation grew strongly between 2010 and 2015.85 Pakistan has no renewable energy to speak of except hydropower (11% of primary energy supply).86 (Laos’s plans for a massive expansion of hydropower were mentioned in the previous section.) The Philippines stands out in the region for being the second largest producer of geothermal energy in the world, after the United States: 21% of primary energy supply.87 Papua New Guinea follows in the Asia-Pacific with 10%.88 New Zealand has an aspirational goal (i.e. a soft target) of 100% renewable electricity by 2035, ‘in a normal hydrological year’.89 Papua New Guinea also has an NDC commitment of 100% renewable electricity, to be reached by 2030, but it is conditional on international climate finance.90 Australia’s renewable-energy policy has favoured wind energy, resulting in more than 2,000 turbines being operational in the country by 2015.91 This has helped reduce emissions from electricity generation by 30.2 Mt CO2 eq. (14.3%) between 2009 and 2018,92 despite strong population growth. Over 23% of Australia’s electricity was being produced by renewable energy by 2020, spurred on by the nationally legislated Renewable Energy Target.93 Ibid., 37. Malaysia, ‘Second Biennial Update Report’, xxxv. 78 Ibid., 220. 79 Bangladesh, ‘Third National Communication’, 102–3. 80 Vietnam, ‘Second Biennial Update Report’, 65. 81 David Leary, ‘The Prevailing Wind: Recent Developments, Challenges and Future Prospects for Wind Energy in the Coastal Zone in Key Jurisdictions in the Asia-Pacific Region’ (2017) 20(1) Asia Pacific Journal of Environmental Law 115, 116 (‘hydro-electric power dominates Asia’s renewable energy mix with 75 per cent of electricity generated from renewable sources coming from this source’). 82 Malaysia, ‘Second Biennial Update Report’, xxxiii. 83 Ibid., 220. 84 Vietnam, ‘Second Biennial Update Report’, 14. 85 Cambodia, ‘First Biennial Update Report’, 11. 86 Pakistan, ‘Second National Communication’, 6. 87 Philippines, ‘Second National Communication’, 15. 88 Papua New Guinea, ‘First Biennial Update Report’, v. 89 New Zealand, ‘Fourth Biennial Report’, 37. 90 Papua New Guinea, ‘First Biennial Update Report’, vii. 91 Leary, ‘Wind Energy’ (n. 81), 119. 92 Australia, ‘Fourth Biennial Report’, 7. 93 Ibid., 21. 76 77

Climate change mitigation law and policy in the Asia-Pacific  175 A related issue under this heading is that fossil-fuel energy costs are being subsidized by several developing countries in the Asia-Pacific (information on this point is missing from most BURs, although some do mention it94), creating a non-competitive environment for clean alternatives. Overall, it is not clear how the Asia-Pacific will be able to massively scale up renewable energy between now and 2030 or even 2050. 4.6

Long-Term Reliance on Coal as an Energy Source

Most countries in the Asia-Pacific are substantively reliant on coal use and have no policies explicitly aimed at eliminating it. Indonesia’s NDC target presumes that at least 30% of the country’s primary energy supply will come from coal in 2025, and at least 25% of it will do so in 2050.95 Note that these are relative limits (if they are limits at all), rather than absolute ones: they are a polite way of saying that coal consumption will massively increase. For Indonesia, coal represents energy security. The country has been increasing its domestically sourced production and supply of coal by 9% per year in order to wean itself off oil imports.96 It has been building coal-fired power-generation plants in parallel, with the result that coal’s share in Indonesia’s power-generation mix increased from 37.3% in 2000 to 54.7% in 2016.97 Cambodia too is expanding its network of coal-fired power-generation plants.98 As for Pakistan, it sits atop the 16th-largest coal reserves in the world (186 billion tonnes). Its ‘Thar’ coal field, discovered in 1991, and the largest, is as yet unexploited.99 Meanwhile, Pakistan has become reliant on oil imports that consume nearly two-thirds of its export earnings.100 It also imports more coal than it produces.101 Because domestic resources of oil and natural gas have been depleted, ‘Pakistan has no alternative but to seek meeting an increasingly large fraction of its future energy needs through the use of its practically unutilized vast coal resources’.102 Korea is opposed to new coal power plants, but only ‘in principle’; in actual fact, however, it plans to build, or to complete building, another 20.103 Japan is also reliant, long term, on coal, although in a different sense: when it needs to shut down its nuclear power plants, as it did in the period 2011–2014, the country’s only backup power plan is coal.104 No country in the Asia-Pacific is more closely identified with coal production and consumption than Australia. While euphemistic statements have been issued by Australia’s federal and state governments about the future of coal in the country,105 and while Australia

E.g. Malaysia, ‘Second Biennial Update Report’, 220; Cambodia, ‘First Biennial Update Report’,

94

10.

97 98 99

Indonesia NDC 2016, 3. Indonesia, ‘Second Biennial Update Report’, 1-5/6. Ibid., 1-6. Cambodia, ‘First Biennial Update Report’, 11. Pakistan, ‘Second National Communication’, 6. 100 Ibid., 4. 101 Ibid., 6. 102 Ibid., 76. 103 Republic of Korea, ‘Third Biennial Update Report’, 36. 104 Japan, ‘Fourth Biennial Report’, 7. 105 See Simon Magnus Anderson, ‘A Study of the National Energy Guarantee and Federal Governance Frameworks within the Power Generation Industry’ (2019) 36 Environmental and Planning Law Journal 7, 15–16. 95 96

176  Research handbook on climate change mitigation law reports the closure of 12 coal-fired power plants between 2012 and 2017,106 thereby lessening coal’s contribution to electricity generation, there is no policy directed at its elimination. The Asia-Pacific is probably no less coal-addicted than any other region in the world. 4.7

The Preservation of Sinks in Developing Countries Faces Grave Challenges Due Only in Part to the Illegal Activities of Individuals and Companies

‘Cambodia’s forests have experienced significant reduction in total forest and dense forest cover, due primarily to the increase in plantations, particularly rubber. Despite the creation of protected and community forests, illegal logging still poses a serious threat.’107 This statement by the government of Cambodia captures the paradox that fuels LULUCF emissions across the Asia-Pacific. On the one hand, deforestation is illegal; on the other hand, governments promote it for the purposes of growth and export earnings. It is a contradiction that thwarts the emergence of any preservation norm favouring nature’s land-based sinks. In 2010, Cambodia set a target for the country to maintain its forest cover at no less than 60% by 2015, but in fact had fallen to 50% by 2014 (from 73% in 1960)108 as land concessions continued unabated.109 In Laos, forest cover was down from 70% in 1940 to 41.5% in 2020.110 The government cites lawful activities as the main drivers: ‘commercial logging, household use, shifting cultivation, agriculture extension, mining, hydropower, infrastructure development and expansion of settlement area[s]’.111 Indonesia claims to have instituted a ‘moratorium’ on the clearing of primary forests, as well as prohibitions on the conversion of other forests;112 however, deforestation continues in the country, mainly as a consequence of non-illegal activities: ‘expansion of agriculture, mining activities, plantations and transmigration; unsustainable forest management … and forest fires’.113 Pakistan, which lost one million hectares of forest cover between 1990 and 2015,114 leaving it with a forest cover of only 5%, has launched a ‘Billion Tree Tsunami’ programme to restore 350,000 hectares of forest.115 It claims that any more-ambitious restoration would necessitate an injection of international climate finance, to the tune of billions of dollars.116 In Papua New Guinea, LULUCF-sector greenhouse gas removals by 2015 had decreased to 8% of what they were in 2000.117 Meanwhile, PNG’s non-LULUCF emissions grew, and the country went from being a net sink in 2000 to a net source of emissions in 2015.118 Non-illegal logging, subsistence agriculture, and the expansion

108 109 110 111 112 113 114 115 116 117 118 106 107

Australia, ‘Fourth Biennial Report’, 7. Cambodia, ‘First Biennial Update Report’, xi. Ibid., 8. Ibid., xvi. Laos, ‘First Biennial Update Report’, 3. Ibid., 3. Indonesia NDC 2016, 2. Indonesia, ‘Second Biennial Update Report’, 1-8. Pakistan, ‘Second National Communication’, 101. Ibid., 32. Ibid., 105. Papua New Guinea, ‘First Biennial Update Report’, vi. Ibid., vi.

Climate change mitigation law and policy in the Asia-Pacific  177 of oil-palm plantations were the main drivers,119 eliminating 262,000 hectares of forest and degrading a further 2,428,000 hectares between 2000 and 2015.120 Of all the developing countries examined, only Thailand claims success in reducing its deforestation rate,121 and only Vietnam claims that a slight increase in forest cover was achieved over a recent period.122 Several countries in the Asia-Pacific are ‘REDD+ ready’,123 waiting for the REDD+ programme to take off. It is unclear when this will happen—if at all. 4.8

Mitigation of Emissions from Livestock and Transport in Australia and New Zealand Has No Clear Policy Pathway Forward

New Zealand’s methane emissions from dairy cattle and CO2 emissions from transport account for most of the increase in emissions experienced by the country since 1990.124 (Traditionally a sheep-farming country, New Zealand has transitioned to higher-value, higher-emitting cattle to sustain its agricultural sector and export earnings.125) Its plans to reduce agricultural methane emissions remain vague,126 despite the fact that quantified mitigation targets for this subsector have been written into legislation.127 New Zealand’s ETS is the main policy instrument for reducing emissions from transport.128 Whether it will have the desired effect or not was not known at the time of writing. Australia, like New Zealand, faces apparently insoluble challenges from its increasing agricultural methane emissions. (Over one year, 2016–2017, agricultural emissions grew by 3.7 Mt CO2 eq.129) Unlike New Zealand, Australia has no ETS. Its national mitigation system, the Emissions Reduction Fund, has been criticized for having little or no capacity to reduce the country’s transportation emissions,130 which are also growing strongly.131

Ibid., 35. Ibid., 48. 121 Thailand, ‘Second Biennial Update Report’, 12. 122 Vietnam, ‘Second Biennial Update Report’, 13. On this topic, see also Evans, ‘LULUCF’ (n. 19), 347. 123 E.g. Laos, ‘First Biennial Update Report’, Annex I. 124 New Zealand, ‘Fourth Biennial Report’, 15. 125 Ibid., 19, 36. 126 Ibid., 37. 127 See the Climate Change Response (Zero Carbon) Amendment Act 2019, available at www​ .legislation​.govt​.nz/​act/​public/​2019/​0061/​latest/​LMS183736​.html, which sets a domestic target to reduce emissions of biogenic methane to 24–47% below 2017 levels by 2050, including to 10% below 2017 levels by 2030. 128 New Zealand, ‘Fourth Biennial Report’, 38. 129 Australia, ‘Fourth Biennial Report’, 6. 130 Prafula Pearce and Vanessa Johnston, ‘A New Fast Lane or Just a Roadblock? Mitigating Road Transport GHG Emissions under Australia’s Emissions Reduction Fund’ (2016) 33 Environmental and Planning Law Journal 181. 131 Australia, ‘Fourth Biennial Report’, 5, 7. 119 120

178  Research handbook on climate change mitigation law 4.9

Rice Cultivation Presents a Region-Specific Mitigation Challenge for Many Countries in the Asia-Pacific

As with cattle farming, methane emissions from rice paddies are impossible to capture, but they are also difficult to reduce, short of limiting production. In Asia’s rice-growing countries, around half of all methane emissions come from rice paddies.132 In a way, rice cultivation is equivalent to Australia’s and New Zealand’s mitigation challenge from livestock, except that it is more difficult to deal with, because rice is a staple food in much of the Asia-Pacific. In Cambodia, emissions from rice paddies increased two-and-a-half times in the period 1994–2016.133 Between 2013 and 2017, an additional 210,000 hectares of land in the country was converted to rice cultivation.134 Vietnam added 141,000 hectares of paddy in 2012 alone.135 Half of Thailand’s agricultural land in 2015, or 22% of the country’s land area (11 million hectares) was given over to paddy use.136 More than half of Thailand’s agricultural emissions in 2013 (27.9 Mt CO2 eq.) came from rice cultivation.137 Vietnam’s emissions from the same activity in 2013 reached 42.6 Mt CO2 eq.138 Rice production increases with population growth. In Laos, where the population is growing at a high rate,139 the government aims to mitigate emissions from rice paddies by increasing the number of planting seasons per year, thus reducing the rate of land conversion.140 But Laos’s target is not further elaborated in its BUR. None of the other mentioned countries appear to have any policies aimed at reducing emissions from this major agricultural activity.

5 CONCLUSION This chapter has reviewed the greenhouse gas mitigation challenges of countries in the Asia-Pacific. Many of them are universal, although a few are specific to the region. Some of the challenges are the same for both Annex I and developing countries, although there are also stark differences (e.g. in the management of LULUCF emissions and the sophistication of MRV systems). It is almost impossible to tell from the NDC targets of Asia-Pacific countries, whether read alone or in combination with the information on emissions presented in Tables 7.1 and 7.3, how they compare with each other in terms of mitigation ambition. The theory that states will lead by example under the Paris Agreement, or pressure each other to do better, presumes a degree of comparability that has not yet been attained in state reporting.

132 In Japan, in 2017, 45% of total CH4 emissions were from rice cultivation: Japan, ‘Fourth Biennial Report’, 9. 133 Cambodia, ‘First Biennial Update Report’, xvii. 134 Ibid., 6. 135 Vietnam, ‘Second Biennial Update Report’, 13. 136 Thailand, ‘Second Biennial Update Report’, ii. 137 Ibid., v. 138 Vietnam, ‘Second Biennial Update Report’, 23. 139 Laos, ‘First Biennial Update Report’, 6. 140 Ibid., 9.

8. Climate change mitigation law and policy in the Middle East Mehdi Piri

INTRODUCTION The consequences of the phenomenon of climate change begin with increasing solar radiation absorption and rising temperatures on Earth. Research shows the position of temperature changes in the Middle East in comparison to the world and it can be seen that the Middle East has seen a significant temperature change in the last century.1 The consequences of rising temperatures have spread beyond the environmental consequences to the economic, social and security fields.2 Given the nature and growing trend of climate change resulting from activities of human origin and the impossibility of controlling the event locally, the need for a collective effort by all countries of the world is clearly felt. Due to the importance of the issue and its implications for the economic development of countries and the need for poverty alleviation, on the other hand, countries have adopted various types of instruments guaranteeing different implementations in order to reduce greenhouse gas emissions. In the Middle East, by increasing awareness of the impacts of climate change on water resources, agriculture and forestry, natural terrestrial ecosystems, human settlements and coastal zones, states have been taking more serious measures to mitigate such adverse effects. It should be kept in mind that the countries in the region display wide diversity, in terms of economic and natural resources such as oil and gas reserves. Yet through this diversity runs a common thread: water scarcity which brings considerable risks to livelihoods, food security, peace, national and regional security (including the effect of terrorism), and the environment. States in the Middle East have been adopting appropriate measures at national and international level to deal with climate change. At the international level, States in the Middle East actively participated in the International Negotiating Committee for a Framework Convention on Climate Change (INC) which finally adopted the United Nations Framework Convention on Climate Change, as the first international instrument specifically addressing climate change. Within the framework of the mentioned Convention, the Conference of the Parties (COP), which consists of the representatives of the State Parties, has met at least 26 times and has approved several resolutions in order to fulfill the obligations mentioned in the Convention. Among the mentioned resolutions, which have been approved in the form of binding documents, one can mention the Kyoto Protocol, which, of course, focuses on mitigation and carbon trading. At the Conference of the Parties P. Lionello and others, ‘The Mediterranean Climate: An Overview of the Main Characteristics and Issues’ (2006) 4(1) Developments in Earth and Environmental Sciences 1–26; S. Russo and others, ‘When Will Unusual Heat Waves Become Normal in a Warming Africa?’ (2016) 11(5) Environmental Research Letters. 2 E. Bucchignani and others, ‘Climate Change Projections for the Middle East–North Africa Domain with COSMO-CLM at Different Spatial Resolutions’ (2018) 9(1) Advances in Climate Change Research, 66–80. 1

179

180  Research handbook on climate change mitigation law which was held in Paris in 2015, the State Parties signed an agreement in this regard, which is known as the Paris Agreement. In addition to addressing emissions reductions, the Paris Agreement addresses the issue of adaptation and governments’ efforts to mitigate the effects of climate change. The global approach to reducing emissions and adapting to its effects has undergone a major change in the Paris Agreement; pursuant to Article 3 of the Agreement, all Parties are required to provide the amount and manner of their participation in achieving the objectives of the Agreement in accordance with the rules set forth in other Articles of the Agreement. It should be noted that the programs that will be presented will include the efforts of member countries over a period of time and will take into account the support needed for developing countries and least developed countries. As a result, all countries of the world will be able to participate in achieving the aims of the Agreement. In principle, the countries themselves will determine the rate of emissions reduction in terms of their national technical and economic capabilities. Given the approach adopted in the Paris Agreement on mitigation, in this chapter the author first intends to examine the effects of global warming in the Middle East in general. After that a general overview on international obligations of states in international climate law with respect to mitigation will be provided. Then, measures which have been taken by Islamic Republic of Iran and the State of Qatar will be discussed and finally some conclusions will be offered by comparing the approaches of these two states.

1

IMPACTS OF CLIMATE CHANGE IN THE MIDDLE EAST

Climate change has various consequences on the natural and human environment. In general, the effects of climate change can be divided into damage to the human environment and to the natural environment. The damage to the human environment in general due to climate change may be referred to as the destruction of infrastructure, changes in social ethics due to extreme heat, lack of access to water resources for drinking and industry and agriculture, lack of food and lack of energy.3 These effects have potentially led to other economic and social consequences. Reductions in the levels of agricultural production, sharp drops in surface run-off and underground water storage, increase of mean temperature with its consequences (heat exhaustion and spread of some diseases), increased hot-spots for dust and sand storms (with adverse impacts on health and industry) as well as extreme vulnerability of biodiversity and natural resources are some of the direct and indirect extreme impacts of climate change.4 Also, increased air pollution, due to lack of appropriate technological support, with its increased health risks is another aspect of the country’s vulnerability. In accordance with IPCC Reports, climate change and global warming have led to widespread and persistent droughts, as well as non-uniform distribution of precipitation. In the Middle East, water resources are depleted and the region has been facing increasing water shortages. In the Middle East, climate change is a major challenge, especially if we look at the increasing and persistent droughts, as well as the growing demand for water and water scarcity. The IPCC estimates that the region will become warmer and drier in the future. An increase in temperature thresholds and a decrease 3 See generally John S. Dryzek and others (eds), The Oxford Handbook of Climate Change and Society (Oxford 2011). 4 Dorte Verner (ed.), Adaptation to a Changing Climate in the Arab Countries: A Case for Adaptation Governance and Leadership in Building Climate Resilience (World Bank Publications 2012).

Climate change mitigation law and policy in the Middle East  181 in rainfall will lead to severe droughts in the region. According to IPCC modeling, 80 to 100 million people will be exposed to water shortages in the region by 2050, and groundwater will decline rapidly.5 In Iran the reduction of approximately 50% of surface run-off, increased flood occurrence and growth in imports of agricultural products are predicted. These all clearly indicate serious impacts of climate change in Iran. Iran is also experiencing the increasing trend of drying wetlands, as an important indicator of the impact of climate change.6 It is suggested that taking into account Iran’s geographical location and economic structure, average precipitation and evaporation, Iran could be ranked within the category of vulnerable countries in accordance with Articles 4(8) and 4(10) of the UNFCCC. The same could be suggested for many of Middle Eastern countries. For example, in a study conducted in this regard in Khuzestan province, in the south of Iran, migration has been considered as one of the most important consequences of climate change. Climate change will exacerbate tensions in access to and exploitation of natural resources, undermine community livelihoods, and lead to displacement and human casualties.7 Also, in today’s world, with these global connections, the negative consequences of the impact of climate change on countries are not limited to their geographical borders and will affect the surrounding areas. Widespread migration from poor areas to better-off areas and its social consequences are part of the predictable tensions. The health sector is one of the areas affected by climate change, which has also been considered in the strategies of the World Health Organization. In general, the vulnerability of the country’s health sector is significant in this regard. Another consequence of climate change is threatening human security in so far as the UN Security Council is under considerable pressure to address climate change as a threat to international security.8 Climate change in the Middle East has also had very significant effects on the natural environment. Effects such as drought or floods caused by changes in rainfall patterns, and the secondary effects on food supply and public health, can be mentioned. Also, studies conducted in the Middle East region show that if the same pattern of air temperature increase continues, especially in hot seasons, the possibility of living in some cities or the possibility of holding some religious ceremonies will face major setbacks.9 Water, as it provides the basis of natural and human life, has always been a critical issue for dry and semi-dry countries, in particular in the Middle East. In cases of significant decrease or increase in its volume and change in its quality, the continuation of human or natural life could also be seriously threatened. On the other hand, water is an element that affects different economic, social and security sectors of each country. The global study shows that the effects of this, especially in the form of drought and water scarcity on the

Intergovernmental Panel on Climate Change, Working Group 2, Climate Change 2007 – Impacts, Adaptation and Vulnerability: Working Group II Contribution to the Fourth Assessment Report of the IPCC (Cambridge University Press 2007). 6 Zohre Ebrahimi-Khusfi, Reza Ghazavi and Mahdi Zarei, ‘The Effect of Climate Changes on the Wetland Moisture Variations and Its Correlation with Sand-Dust Events in a Semiarid Environment, Northwestern Iran’ (2020) 48(12) Journal of the Indian Society of Remote Sensing 1797–1808. 7 A. R. Khavarian-Garmsir, A. Pourahmad, H. Hataminejad and R. Farhoodi, ‘Climate Change and Environmental Degradation and the Drivers of Migration in the Context of Shrinking Cities: A Case Study of Khuzestan Province, Iran’ (2019) 47 Sustainable Cities and Society. 8 Ken Conca, ‘Is There a Role for the UN Security Council on Climate Change?’ (2019) 61(1) Environment: Science and Policy for Sustainable Development 4–15. 9 J. S. Pal and E. A. Eltahir, ‘Future Temperature in Southwest Asia Projected to Exceed a Threshold for Human Adaptability’ (2016) 6(2) Nature Climate Change 197. 5

182  Research handbook on climate change mitigation law geographical region of the Middle East, are very significant. However, in the current situation, this region is facing the most severe water stress. Part of the economic risks of climate change is due to the relationship between water, food, energy and the environment. Thus, the water shortage due to climate change, in addition to biological risks, has far-reaching economic and social effects. Despite the significant effects of climate change on the region, an increasing amount of greenhouse gases, including carbon dioxide, are emitted in the Middle East due to the large amount of oil and gas activity. This is because the Middle Eastern countries have abundant reserves of natural resource, such as crude oil and natural gas, and thus their economies remain heavily dependent on the revenues they earn from oil and gas exports. The Middle East’s share of worldwide oil reserves is about 50%, and about 40% of natural gas reserves.10 Many Middle Eastern countries, such as Iran, Saudi Arabia, Qatar, Iraq, Kuwait, and the United Arab Emirates (UEA), are major oil producing countries and their economies remain heavily dependent on crude oil and oil export revenues. Iran, as an example, holds some of the world’s largest deposits of proven oil and natural gas reserves, ranking among the world’s top ten oil producers and top five natural gas producers. In addition, according to one report, many Middle Eastern countries, such as Saudi Arabia, Egypt, Iran, Oman, Turkey, and the UEA, are among countries with high amounts of GHG emissions.11 This circumstance has posed difficult dilemmas of choice for Middle Eastern countries, since on the one hand they need to promote their economies, which require more investment in the oil and gas industries and more GHG emissions, and on the other hand, they are directly faced with the adverse consequences of climate change; a situation that not only makes it difficult for states to make decisions, but also requires the adopting of specific rules and regulations. As a result, the mitigation assessment of greenhouse gas emissions has been an integral part of national and climate policies in these countries.

2

THE INTERNATIONAL LEGAL REGIME AND THE MIDDLE EAST

The United Nations Framework Convention on Climate Change is one of the conventions that merely outlines the goals of the principles and the general obligations of countries concerning climate change. In other words, it has determined the general framework of countries’ cooperation on climate change. This framework is based on the two general principles of reducing greenhouse gas emissions and adopting programs to cope with the potential consequences of climate change. Article 4 of the Convention refers to the obligations of states. In the introduction to the Article and before explaining the commitments, it is mentioned that parties will implement the obligations set out in the text of the Convention in accordance with the principle of common but differentiated responsibility and taking into account regional and domestic development priorities and their conditions. Apparently, this means that parties should implement their commitments under the Convention alongside with their national and regional development priorities. The obligations of the parties to the Convention can be divided into three general BP, ‘Statistical Review of World Energy 2019’. https:// ​ w ww ​ . pbl ​ . nl/ ​ s ites/ ​ d efault/ ​ f iles/ ​ d ownloads/ ​ p bl ​ - 2020 ​ - trends ​ - in ​ - global ​ - co2 ​ - and ​ - total​ -greenhouse​-gas​-emissions​-2019​-report​_4068​.pdf. 10 11

Climate change mitigation law and policy in the Middle East  183 categories: the first category refers to the general obligations that will be applicable to all parties. The second category refers to the commitments of developed countries listed in Annex 1, which are committed to reducing emissions, and the third category refers to the countries listed in Annex 2, which are committed to financially supporting developing countries to achieve the objectives of the Convention. Countries in the Middle East are not listed in Annexes, hence, the second and third commitments are not applicable to the Middle Eastern states. Among the commitments that fall into the first category of commitments and are related to this chapter, the following can be mentioned: ● updating and submitting national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol and formulating and implementing national and regional programs containing measures to mitigate such emissions and sustainable management of sinks and reservoirs; ● promotion and cooperation for the development and implementation of measures that lead to the reduction or prevention of anthropogenic greenhouse gas emissions, including through the transfer of technology in all related fields as well as cooperation in the scientific fields of research technology and organized supervision in relation to climate systems. It should be kept in mind that, such national programs, in particular in developing countries, will be conducted by taking into account their relevant social, economic and environmental policies and actions. In the Convention there is no mechanism to control the fulfillment of the above obligations. In general, some of the above obligations are procedural obligations and some are substantive obligations. In the case of procedural commitments, it may be considered merely the observance of the necessary formalities to meet the obligations of the countries. On the other hand, cooperation in international fields will basically require the participation of two or more countries through the signing of separate bilateral or multilateral agreements. Therefore, although the above obligations are theoretically significantly adjusted to meet the aims of the Convention, what is clear is that a significant mechanism to control the fulfillment or non-fulfillment of such obligations is not developed under the Convention. It seems that countries in the Middle East, by ratifying the UNFCCC, initiate the adoption of appropriate policies with respect to mitigation of GHGs, at various levels. For instance, in Iran, in 2000, the General Policies for Energy,12 which is the highest level of policies in the Iranian legal system, addressed policies in relation to mitigation for the first time. The General Policies for Energy identify optimizing energy consumption and reducing energy intensity alongside creating diversity in the country’s energy resources and using them, taking into account environmental issues, and trying to increase the share of renewable energy. Meanwhile, such policies in countries in the Middle East were not so common and neither does the UNFCCC prescribe any specific guidance. In the Kyoto Protocol, following the commitments set out in the Climate Change Convention, certain quantitative targets have been set for emissions reductions by states parties to the Convention. These objectives are generally set out in the obligation to determine national programs and policies in accordance with national conditions

Determination of the general policies of the Islamic Republic of Iran after consultation with the Nation’s Expedience Council is one of the Authorities of Supreme Leader in accordance with Article 110 of the Iranian Constitution. 12

184  Research handbook on climate change mitigation law regarding the use of green energy and in order to reduce GHG emissions. The Kyoto Protocol imposed legally binding quantitative emissions targets on developed countries. Therefore, the main obligations under the Kyoto Protocol are the obligation of the parties listed in Annex I to the UN Convention. Of course, this does not mean that non-listed countries generally do not have any obligations under the Kyoto Protocol.13 However, certain obligations, the breach of which can be assessed and relied upon, are reserved only for the parties listed in Annex I. In fact, according to Article 10, all parties, taking into account their obligations under the UNFCCC, are required to formulate programs to improve the quality of local emission factors and, by considering their socio-economic conditions, to prepare national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases. Furthermore, all parties are bound to formulate programs containing measures to mitigate climate change and measures to facilitate adequate adaptation to climate change. These programs should cover the energy, transport and industry sectors as well as agriculture, forestry and waste management. Following the 2012 deadline and the lack of an international consensus on the continuation of the Kyoto Protocol in Cancun, the parties have taken a different approach to determining the framework for reducing emissions and adapting to climate change conditions. The Paris Agreement was initially adopted in 2015 under the auspices of the United Nations Framework Convention on Climate Change, and it was decided that the parties would subsequently ratify and accede to the Agreement. At present, the Agreement has been already entered into force and more than 175 states have already ratified it. In Article 2 of the Convention, one of the main objectives of the Agreement is to prevent an increase in the average temperature of the Earth by up to 2 degrees compared to the pre-industrial period and to try to limit it to 1.5 degrees. In addition, increasing the ability to adapt to the adverse effects of climate change, fostering climate resilience, providing financial resources to reduce greenhouse gas emissions and climate-resilient development have been included in its goals. It should be noted that, similar to the United Nations Framework Convention on Climate Change and the Kyoto Protocol, this Agreement emphasizes the principle of shared but different responsibilities of countries in terms of national capabilities. One of the main aims of the Paris Agreement, as articulated in Article 2, is increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience in a manner that does not threaten food production. The most important commitment under the Paris Agreement is to provide nationally determined contributions (NDCs) to reduce emissions and adapt to the consequences of climate change. The first and most important legal effect of acceding to the Paris Agreement will be to enforce the objectives of the NDCs in question, which have already been submitted to the Secretariat of the Convention. The NDCs were mostly submitted before the UN Climate Change Conference in Paris, in 2015, hence they are different in terms of content and form. Guidance on NDCs was adopted internationally by the UNFCCC in 2018.14 Each party has the authority to prepare and submit its NDC based on its own discretion, and parties are required to achieve the objectives identified in their respective NDCs. According to Article 4 of the Paris Agreement, parties are also required to report information necessary to track progress towards their NDCs. Furthermore, in accordance with Articles 14 and 15, a transparency framework, 13 B. Mustafa and others, ‘The Kyoto Protocol and Developing Countries’ (2000) 28(8) Energy Policy 525–536. 14 Climate Change Expert Group, ‘Reporting progress towards nationally determined contributions: exploring possible common tabular formats for the structured summary’(OECD 2020).

Climate change mitigation law and policy in the Middle East  185 a global stocktake, and a compliance and facilitation committee have been established to facilitate implementation of, and promote compliance with, the Paris Agreement. These form a binding transparency and information sharing mechanism, which promotes implementation of the Paris Agreement. What is certain is that the submission of NDCs is a legal obligation and parties are requested to implement the measures set out in their NDCs. It should be noted that the capacity to amend NDCs provided for in Article 4 of the Agreement is solely for the purpose of increasing obligations and not reducing them. The question that may arise here is the type of obligation mentioned in NDCs. In other words, it may be asked whether parties are merely committed to the declaration of NDCs or are they also committed to the realization of the declared measures? In response to this question, it should be said that the countries are both obliged to announce the amount of national participation in the schedules specified in the Agreement and with the required specifications, and also to implement the mentioned programs within the period specified in the text of the Agreement. This is because in the text of Article 3, countries are explicitly committed to achieving the goals of the Agreement through the implementation of NDCs. In accordance with the above Article, the submission of NDCs must be made within a period of five years and based on the periodic decisions of the Conference of the Parties. Parties’ NDCs shall be recorded in a system to be determined by the Conference Secretariat, and parties implement their NDCs alongside the development of their national programs. And, of course, joint actions for implementation of NDCs are authorized and permitted. This is in contrast to the Kyoto Protocol, in which guidelines adopted by the Conference of the Parties are only mandatory for developed countries. In the Paris Agreement, compliance with the guidelines adopted by the Conference of the Parties shall be implemented by all parties. The Paris Agreement commits both developing and developed countries to achieve its mitigation and adaptation goals. Thus, although the general commitments for developed countries’ governments are to work with developing countries to reduce emissions and adapt, the overall regime of commitments to reduce emissions and participate in the compliance control mechanism is similar. As a result, parties, regardless of their level of development, are obliged to fulfill these obligations. Moreover, parties are directed to support international cooperation on adaptation efforts by taking into account the needs of developing country parties with regard to sharing information, good practices, experiences, technical strengthening, institutional arrangements and providing technical support. As mentioned above, Iran has not yet ratified the Paris Agreement, but Iran has already submitted its own intended nationally determined contribution INDC, which apparently is not its final INDC and will be replaced by new one. Note, this is still an INDC and has not yet been converted to a nationally determined contribution (NDC). This is because although Iran has signed the Paris Agreement, it has not yet ratified it. Meanwhile, a brief description of Iran’s INDC on mitigation issues will be beneficial. COP 20 in 2014 invited parties to submit an INDC including mitigation components in accordance with Article 4.3, and Iran prepared its INDC accordingly.15 Iran’s INDC16 includes two plans for mitigation which basically relate

Fatima-Zahra Taibi and Susanne Konrad, Pocket Guide to NDCs under the UNFCCC (European Capacity Building Initiative 2018). 16 Iran’s Intended Nationally Determined Contribution prepared by Department of Environment, 2015, accessible at https://​www​.ctc​-n​.org/​sites/​www​.ctc​-n​.org/​files/​UNFCCC​_docs/​indc​_iran​_final​ _text​.pdf last visited 7 May 2021. 15

186  Research handbook on climate change mitigation law to the international sanctions on Iran. In the first plan, subject to financial resources and the requirements of the national development program, Iran declares its intention to mitigate GHG emissions by 4% by 2030 compared to the business-as-usual scenario year and by considering 2010 as the base year for calculation. As Iran’s INDC indicates, such mitigation will be achieved by developing combined-cycle power plants, renewable energy, nuclear power, as well as by reducing emissions from flaring gas and through energy efficiency. Further, to increase energy efficiency, these measures are suggested: substituting high-carbon fuels with natural gas, strategic planning for utilizing low-carbon fuels, intensifying economic diversification and participation in market-based mechanisms at the national and international levels. It is of importance to note that it is explicitly pointed out that such mitigation will be facilitated and speeded up in the absence of any form of sanction or restriction. Accordingly, one may infer that even such mitigation is subject to the lifting of sanctions. In the second plan, which is called the ‘Conditional Mitigation Action’, and is subject to the termination of sanctions and the availability of international resources in the form of financial support and technology transfer, Iran declares it has the potential to mitigate GHGs by up to 12% against the BAU scenario and by considering 2010 as the base year for calculation. Thus, in the second plan, it has announced an 8% reduction in addition to the required 4% and a total of 12% if sanctions are lifted. Such additional mitigation will be also obtained by focusing on the energy sector, conservation of forests, sustainable agriculture and waste management, and transfer of environment friendly technologies under UNFCCC. Of course as the share of energy sector in GHG emissions in Iran is higher than all other sectors by far, one of the requirements that is explicitly mentioned in the INDC is the country’s need for financial and technological improvement. These technologies include utilizing gas flares; reducing natural gas leakage in the distribution networks; increasing efficiency through the development of CHP and combined-cycle power plants; reducing transmission and distribution electricity losses; energy demand optimization and management; and use of renewable and alternative energy resources such as biofuels, biogas, waste to energy production and CCS. Moreover, it is estimated that the total annual investment needed to achieve unconditional and conditional GHG mitigation is about $17.5 billion and $52.5 billion respectively. Providing such investment requires measures at national level, such as the development of sound financial mechanisms and the economics of energy, as well as international investment and support. In the above-mentioned INDC, the method of calculation and reporting is based on the instructions issued by the Climate Change Working Group in 2006. Therefore, the implementation of the above-mentioned guidelines in preparing reports and presenting the national program is considered practically necessary. In the continuation of the mentioned plan, the annual growth of 8% is considered. Of course, in the INDC, no attempt has been made to link the rate of decline and annual rate of growth, but this does not mean that the two issues should be considered separately. In other words, in considering the relationship between economic growth and the amount of greenhouse gas emissions, mentioning the annual economic growth rate will cause an indirect relationship between the rate of growth and the amount of emissions. In the concluding text of the INDC presented by the Islamic Republic of Iran, one may realize that 4% mitigation plus an additional 8% (i.e. 12% in total) is difficult to achieve, taking into account both international and the US’s unilateral sanctions which are imposed on the Iranian economy. And such restrictions are literally stated in the INDS, in so far as one may conclude that the 4% reduction is also subject to the non-imposition of any international sanctions or restrictions and the availability of international financial resources and technology transfer.

Climate change mitigation law and policy in the Middle East  187 The first and most important legal effect of ratifying the Paris Agreement for Iran will be to enforce its INDC, which at that time is converted to an NDC. The implementation of the NDC is mandatory for the government and any information published in this regard will be reviewed by the Technical Committee in accordance with Article 15 of the Paris Agreement.

3

MITIGATION LAW AND POLICIES IN THE ISLAMIC REPUBLIC OF IRAN

The government of the Islamic Republic of Iran ratified the United Nations Convention on Climate Change in 1996 and subsequently ratified the Kyoto Protocol as a non-annexed state and without having quantitative targets for reducing greenhouse gas emissions. Under the auspices of the UNFCCC and the Kyoto Protocol, the government of the Islamic Republic of Iran has taken measures in accordance with domestic laws to reduce greenhouse gas emissions. In 2015, along with other governments, the government of the Islamic Republic of Iran also signed the Paris Agreement and began the formal process of ratifying the said Agreement in parliament; it was finally ratified by the parliament on November 14, 2016, but has still not been approved by the Guardian Council, hence it has been returned to the Parliament and is still pending, so is not yet in force. On the one hand, the issue of climate change and its two pillars, mitigation and adaptation, are widely recognized as important and inevitable issues, contributing to its attractiveness. On the other hand, there is no uniform regulation of national legislations and policies with respect to this issue. Clearly, attention to the development of renewable energy and reducing the use of oil and gas resources as energy sources and reducing energy intensity are among the first issues related to climate change that have been considered and taken into account in Iranian laws and regulations. In this section, we will first look at the instruments which particularly addressed climate change before the signing of the Paris Agreement, and then the laws and regulations that address mitigation and have been adopted after the signing of the Paris Agreement will be studied. The General Policies of Energy, as noted, is the first formal document to require more attention to developing renewable energies and reducing energy intensity. However, the first regulation specifically aimed at addressing climate change in Iran is the executive regulation adopted in 2008 by the State Cabinet.17 This regulation creates a framework that covers governmental activities in this field. The regulation first describes government policies and strategies. These policies are focused mainly on mitigation and can be divided into six categories: the first category of policies deals with measures which should be taken to fulfill the obligations set out in UNFCCC and Kyoto Protocol, including continuous preparation and submission of national reports with the participation of all relevant institutions through creating a structure to calculate the amount of greenhouse gas emissions by the relevant sector. The second category of policies is linked to improving the patterns of energy production and consumption and also increasing the share of low-carbon energy resources in the country’s energy basket in order to reduce the trend of greenhouse gas emissions. In this category policies such as ‘development and application of new carbon free-technologies’ as well as ‘increasing production and promoting the use of new and renewable energy’ are taken into consideration. The third category of policies deals 17 The Regulation on Implementing of the Climate Change Convention and the Kyoto Protocol 2008 with its further amendments in 2012 and 2015.

188  Research handbook on climate change mitigation law with developing bilateral, regional and international cooperation and assistance to achieve the purpose of the Convention in order to make optimal use of global environmental facilities in Iran to make more efficient use of international funds and transfer of technologies. The fourth category deals with training and research on climate change topics, such as allocation of funds and research facilities of relevant agencies for the purpose of the Convention, to form and activate climate change units in all relevant ministries. Moreover, planning and implementation of public information programs and also better and greater use of the educational facilities of the International Climate Change Board are pointed out. The fifth category is linked to capacity building to use the power of the clean development mechanism through creating legal capacity and facilities, and designing and implementing related projects. The sixth category deals with creating economic diversity to reduce the damage caused by the reduction of oil revenues as a result of countermeasures such as balancing and diversifying the country’s economic sectors with an emphasis on distancing oneself from the mono-product economy and creating added value in the downstream part of the oil and gas industry. As noted above, these policies are adopted by taking into account the particular economic environment of the country. In general, all these policies are relevant to climate change mitigation, albeit to varying degrees. Furthermore, each of these policies may require significant amounts of effort in terms of providing technology, finance, education and public awareness to implement them. For example, the second category of policies is linked to improving the patterns of energy production and consumption. The effective implementation of this policy requires a new price-setting mechanism in which producers of electricity generated from renewable energy resources benefit more than other energy producers. Obviously implementing this policy implies integrating renewables in electricity markets through government support schemes such as tax credits, feed-in tariffs, two price systems and so on.18 Or promoting the preferred patterns of energy consumption implies improving the thermal integrity of building structures with better insulation, which requires the availability of economically attractive solutions. Consequently, increasing the share of low-carbon energy resources in the country’s energy basket in order to reduce the trend of greenhouse gas emissions is costly and time-consuming. Therefore, the government should adopt appropriate policies with respect to mitigation of GHG emissions by prioritizing these policies through a cost-effective climate change strategy. Generally speaking, such policies are passed to meet the obligations as required under the UNFCCC and the Kyoto Protocol. Furthermore, a national working group has been established to manage all issues related to climate change in the country. Its main function with respect to mitigation is carrying out specialized matters related to the Convention and the Protocol at the national and international levels, such as preparing national reports. Moreover, the national working group is also authorized to plan and pursue appropriate executive policies in relation to the purpose of the Convention and the Protocol. In doing so, this national working group, which is composed of authorized representatives of relevant ministries and governmental organizations, will prepare appropriate mitigation and adaptation plans aligning with policies to deal with the consequences of climate change. These policies and plans should be accordingly implemented by the relevant authorities and results of their measures shall be reported. Furthermore, in coordination with the national working group, each of the relevant 18 See generally Juan M. Morales and others, Integrating Renewables in Electricity Markets: Operational Problems (Springer Science & Business 2013).

Climate change mitigation law and policy in the Middle East  189 ministries and organizations undertake specific tasks with respect to adaption and mitigation separately. In relation to mitigation, the relevant executive and supervisory bodies are obliged to prepare a report on the emission of greenhouse gases resulting from the activities of their area of ​​operation in the framework of the instructions of the Intergovernmental Panel on Climate Change and submit them to the national working group. For this purpose, the relevant bodies have explicit obligations and should prepare annual reports on emissions of greenhouse gases in these activities such as: fuel consumption in thermal power plants, industries, transportation, commercial and residential units, agriculture and coal mining and solid fuels and anaerobic municipal wastewater treatment plants; exploration, extraction, refining and transfer processes of crude oil, gas and petroleum products and combustion and process emissions of petrochemical units; process pollutants of industries such as cement, iron, steel and aluminum and industrial wastewater treatment plants; livestock, agriculture, forests and rangelands; and waste landfills. The Statistics Center of Iran is requested to include the statistics of carbon dioxide emissions per capita in the country’s statistical yearbook. In addition to the above reporting, the relevant ministries and organizations are required to: A. prepare a report on the progress of greenhouse gas emissions based on the continuation of the current situation and the implementation of approved programs within a 20-year horizon, within one year after the date of notification of this regulation; B. review, prepare and present emission reduction policies within the operational areas of their respective organizations; C. report annually to the national working group on the status of implementation of emission reduction policies in the operational areas of their respective institutions, emphasizing the effect of the implementation of each policy in reducing emissions. Given that the regulation has been passed after the ratification of the Kyoto Protocol, there are provisions specifically aimed to facilitate implementation of clean development mechanism projects such as formulating the necessary programs, identifying the obstacles to attracting these projects to the country and providing the necessary solutions to eliminate these obstacles. Of course, the Regulation does not limit the scope or applicability of the provisions to the Kyoto Protocol and it seems the continuing applicability of those provisions has extended to further legal regimes such as the Paris Agreement. The above policies clearly indicate that at this level the Iranian government is mainly focused on mitigation of GHGs by increasing awareness and providing the necessary platforms to reduce emissions by identifying sources of emissions by sectors and also requiring governmental bodies to take appropriate measures to reduce emissions. At this stage, emission reduction targets are not set and this could be because making such decisions requires more financial resources. It should be noted that the government of the Islamic Republic of Iran has modified the executive regulations of the UNFCCC and Additional Protocols in 2012 and 2015; in general, the executive framework of the Iranian government’s programs in this regard has been reformulated. Within the framework of the above-mentioned regulations, the executive strategies of the country in relation to the Convention and the following protocols have been specified. Here are some of the strategies that are related to mitigation: ● establish the necessary infrastructure and mechanisms to achieve the objectives of the UNFCCC and the Kyoto Protocol;

190  Research handbook on climate change mitigation law Table 8.1

Iranian strategies concerning mitigation by sub-sector Increasing energy efficiency Increasing the share of renewable energy in the country’s total

Reducing greenhouse gas emissions and carbon footprints in the country’s socio-economic development programs in the energy sector

primary energy supply Increasing the share of low-carbon energy in the country’s total primary energy supply Modify pricing/incentive/punitive policies to increase energy efficiency and develop renewable energy Use of lower carbon-emitting technologies

Reducing greenhouse gas emissions and carbon footprints in the

Carbon management in agriculture, forestry and land use

country’s socio-economic development programs in other sectors

Carbon management in the waste and wastewater sector

Source: Own compilation, based on Iran’s Department of Environment, ‘Strategic Plan on Climate Change’ (Haak Publication 2017).

● maximum use of global and regional environmental capacities and facilities in various technical, economic and educational dimensions within the framework of the Convention and the Protocol; ● supporting domestic research in order to achieve the objectives of the Convention and the Protocol; ● creating the necessary preparation to prevent and deal with the consequences of climate change. In this regard, the national working group determines specific strategies concerning mitigation in the sub-sectors shown in Table 8.1.19 According to Fawzy et al.,20 there are three main climate change mitigation approaches: the first includes conventional mitigation efforts such as CO2 emissions reduction including renewable energy, fuel switching, efficiency gains, nuclear power, and also carbon capture, storage and utilization. The second category includes: a new set of technologies that are deployed to capture and sequester CO2 from the atmosphere. The third category includes altering the Earth’s radiation balance through the management of solar and terrestrial radiation. The first category includes conventional mitigation efforts that are commonly used and will be the focus of this chapter. By looking at these mitigation strategies one may clearly observe that Iran is mostly focused on reducing greenhouse gas emissions, as will be discussed below. 3.1 CO2 Emission Reduction The mentioned policies were adopted before signing the Paris Agreement, in the Fifth Development Plan of the Islamic Republic of Iran Act (2011–2015); several articles relate to mitigation of GHG emissions.21 Under Article 139, in order to create infrastructure for the production of wind and solar power and to develop the use of clean energy and increase the share of production of this type of energy in the country, the government is allowed to support Department of the Environment, ‘National Strategic Plan on Climate Change’ (Haak Publication 2017). 20 S. Fawzy, A. I. Osman, J. Doran and D. W. Rooney, ‘Strategies for Mitigation of Climate Change: A Review’ (2020) Environmental Chemistry Letters 1–26. 21 The Fifth Development Plan of the Islamic Republic of Iran Act (2011–2015), 2011. 19

Climate change mitigation law and policy in the Middle East  191 the private and cooperative sectors through managed funds to provide 5,000 MW of wind and solar energy during the program. It is noteworthy to mention that in the Third Development Plan (2000–2005), according to Article 66 of the Law regulating part of the government’s financial regulations, the Ministry of Energy was obliged for the first time to purchase electricity from renewable sources from the private sector at incentive rates. Subsequent approvals continued more seriously. With the approval of Article 133(b) of the Fifth Development Plan Law and Article 61 of the Consumption Pattern Reform Law, the Ministry of Energy was allowed to enter into long-term contracts for the guaranteed purchase of electricity generated from renewable energy sources and clean energy with priority given to the private sector. In this regard, the purchase price of electricity from these power plants will be calculated according to the following criteria: the energy conversion costs in the competitive market, the annual average value of imported or exported fuel, and environmental costs including carbon emissions and pollutants. Items are calculated and announced by the Ministry of Energy according to the formula approved by the Economic Council, with the approval of the executive instructions of Article 61 of the Law on Reforming the Consumption Pattern and the diligent policies of the Ministry of Energy in developing the participation of the non-governmental sector in the construction of renewable and clean power plants and increasing the share of renewable electricity in the country’s energy basket. As Iran’s energy balance sheet for 2011 indicates, the capacity of renewable power plants in operation in the country in 2011, the first year of the Fifth Development Plan, compared to 2005, the first year of the Fourth Development Plan, has grown by 45.2%. In other words, it has grown by an average of 4.6% per year and has increased from 1.6 to 1.8 gigawatts. As the energy balance sheet for 2015, out of the total capacity of 76483.9 MW of power plants in the country, 11836.2 MW is attributable to renewable power plants, including hydropower plants and 256.4 MW is attributable to renewable energy sources excluding hydropower plants. As a result, we can observe a considerable rate of growth in renewable energy before international sanctions were imposed on Iran in 2012.22 3.2

Energy Efficiency

Energy Consumption Pattern Reform Law was enacted in 2011. In accordance with Article 8 of this law, the Ministry of Energy can establish an organization to increase productivity and use renewable resources as much as possible. This organization later was reformed and renamed as the Organization of Renewable Energy and Electricity Efficiency (SATBA). The Energy Consumption Pattern Reform Law calls for energy efficiency. To this end, the cabinet is requested to determine the energy consumption pattern of energy users in the domestic, commercial, public and special energy consumption sectors of industries (including oil and energy industries), mines, mining industries, agriculture and water pumping. It should also determine criteria and technical specifications and mandatory energy standards for energy equipment and machinery, industrial, mining and agricultural processes, as well as quality standards for various consumable fuels and electricity that manufacturers and importers must comply with. United Nations Security Council Resolution S/RES/1929 (2010) (on measures against Iran in connection with its uranium enrichment-related and reprocessing activities, including research and development). 22

192  Research handbook on climate change mitigation law The Ministry of Housing and Urban Development is obliged to regulate energy saving regulations in buildings with orientation towards green buildings and also urban planning in accordance with the mentioned model, with the cooperation of the Ministries of Oil, Energy, Interior and Strategic Planning and Supervision. All energy consumers with annual fuel consumption of more than five million cubic meters of gas or equivalent liquid fuel and demand for electrical power of more than one megawatt are required to create an energy management unit. The government should conduct energy audits and implement the necessary strategies to optimize energy consumption. In order to manage demand and implement policies related to optimizing fuel consumption in different sectors of consumption, the Ministry of Oil is obliged to develop the application of new energy conversion technologies in different sectors of consumption, reducing long-term costs due to energy demand, developing standards, criteria and guidelines related to energy efficiency, economic replacement of energy carriers along with the development of local capacity for energy and renewable energies. 3.3

Paris Agreement and INDC

As mentioned above, Iran has not yet ratified the Paris Agreement, but Iran has already submitted its own INDC, which apparently is not its final INDC and will be replaced by a new one. In order to implement the provisions of the INDC, it is necessary to establish appropriate domestic laws and regulations. It should be noted that while Iran has not yet ratified the Paris Agreement, several laws and regulations in alignment with it have been adopted in the Iranian INDC. We provide a brief overview of the some of them below. A Gas flare reduction Iran is one of the countries that burns high volumes of gas associated with oil extraction (flare gas). A 2015 study of Iran’s international situation in terms of burning this type of gas showed Iran in third place, after Russia and Iraq. Despite the plans that have been put into operation in Iran to use flare gas, data show that during the period 1996–2013, each year, on average, 40% of the gases associated with oil have been flared and the rest (60%) have been used. It has been reported that 36.8 million cubic meters per day of this amount has been flared and the remaining 55 million cubic meters per day has been used.23 As a result, collection of associated gas has been prioritized and in the sixth development plan of the Islamic Republic of Iran Act (2015–2020) the government is obliged to do so by handing over all projects in relation to collection, control and exploitation of associated gases to the private sector in such a way that at least 90% of the gases are controlled by the end of the program. Since the data on application of this law is not yet published, it is not possible to evaluate the implementation of this law. B Energy efficiency Energy efficiency plays a key role in mitigation plans and is also included in the Iranian INDC. Given the importance of energy efficiency, the sixth development plan of the Islamic Republic of Iran Act (2015–2020) included several duties to promote energy efficiency, including A report on explanation of the equipment and executive tools of associated gas collection projects and the limitations of private sector investment in these projects (Parliament (Majlis) Research Center 2018). 23

Climate change mitigation law and policy in the Middle East  193 replacing low-efficiency industrial and high-consumption products, such as worn-out cars, by 20% annually by providing the necessary incentives. There is also a requirement to decrease the annual energy losses in the construction sector to 5% and to reduce energy and carbon consumption in the transport fleet. C Renewable energy Several regulations have been adopted to increase the development of renewable energy. For instance, the government is obliged to increase the share of renewable and clean power plants with priority for investment in the non-governmental sector (domestic and foreign) to at least 5% of the country’s electricity capacity. Furthermore, in accordance with Article 19 of the Clean Air Law,24 the Ministry of Energy is obliged to develop, produce and supply renewable and clean energy in such a way that at least 30% of the annual increase in the required capacity of the country’s electricity supply is provided by renewable energy. In its INDC, Iran expresses its intention to mitigate GHG emissions and various regulation have been adapted. However, implementation of these regulations to a large extent requires access to financial resources and technologies, and because of unilateral and international sanctions imposed on Iran, it seems quite difficult to achieve the commitments in INDC.

4

MITIGATION LAW AND POLICIES IN THE STATE OF QATAR

Qatar is a small arid peninsula in the Persian Gulf, whose economy is highly dependent on the oil and gas industry. Other non-oil economic sectors of sizable contribution to the GDP include finance, real estate and insurance, manufacturing industries, building and construction. Terrestrial and marine biodiversity in Qatar includes a diverse range of habitats. Qatar has limited natural resources and hence insufficient to secure local food needs. Qatar’s mean annual temperature has increased slightly over the last 40 years. In an arid region like Qatar, with high climatic variability, any further climatic change could produce large effects on the ecosystems and environment as well as the economy. As sea level rise is one of the climate change impacts, it threatens Qatar’s coastal livelihoods.25 Furthermore, as Qatar’s economy is also reliant on oil and gas exports, it is vulnerable economically to global efforts to reduce greenhouse gas emissions.26 Therefore, climate change may effect this state in two ways: first on its ecological and human welfare and second by its impact on its economy, taking into account its total dependency on the export of oil and gas. Furthermore, energy consumption in Qatar, which is increasing, is already amongst the highest in the world. Taking into account the country’s dependency on desalinated seawater, which is hugely energy consuming, securing access to water is one of the challenges that the country may face as a result of climate change.

Clean Air Law passed by the Iranian Parliament in 2017. Mohammad Al-Saidi and others, ‘Urban Climate Change Vulnerability, Responses, and Policies in Qatar: An Assessment’ in Walter Leal Filho (ed.), Handbook of Climate Change Resilience (Springer 2018) 1–23. 26 Mohamed Darwish, ‘Towards Energy Conservation in Qatar’ (2013) 2(1) Open Journal of Energy Efficiency 176–191. 24 25

194  Research handbook on climate change mitigation law Qatar ratified the UNFCCC in 1996, the Kyoto Protocol in 2005 and the Paris Agreement in 2017 and submitted its INDC in 2015; after ratifying the Paris Agreement, its INDC was converted to an NDC and hence became binding on the state. The main policies to mitigate emissions of GHGs and to adapt to the consequences of climate change are incorporated in its NDC, and, in this chapter we will therefore concentrate on Qatar’s mitigation plan within its NDC, beginning with a brief overview of Qatar’s NDC. Only a small portion of Qatar’s NDC is allocated to adaptation and its NDC mainly addresses its planned measures for mitigation, although there is no quantitatively targeted mitigation plan. Instead, Qatar intends to enhance the diversification of its economy away from hydrocarbons. Interestingly, Qatar extends the scope of clean energy to natural gas and thereby includes liquefied natural gas (LNG) as clean energy. Accordingly, Qatar plans to contribute to global climate change mitigation by increasing LNG exports. Furthermore, energy efficiency, and clean energy and renewables, are two main points of its NDC mitigation plan. Qatar’s National Vision 2030 includes several plans with respect to energy efficiency and process optimization, but, no specific project or plan is suggested in its NDC. In its NDC, Qatar highlights the importance of the development of clean energy and renewable sources such as solar and wind power. Furthermore, it is emphasized that for utilizing such renewables as reliable power, the country needs high technology. Due to the fact that Qatar experiences an extremely high level of scarcity of natural resources and high rates of water consumption, natural resources management is one of the main reactions to climate change. Meanwhile, the main source of income of the country is the oil and gas sector which of course is one of main sources of GHG emissions. Therefore, the country has focused mostly on energy efficiency rather than reducing CO2 emissions. The government established a hierarchy of actions to prevent environmental pollution, recycling generated waste and energy generation. To this end, Qatar aims to use waste treatment technologies to generate significant amounts of clean energy. Furthermore, public participation and increasing public awareness are important tools to encourage local communities to become involved in mitigation and adaptation measures. Using these tools is envisaged in Qatar’s NDC, with the focus on lower energy consumption and energy-efficient buildings.

5 CONCLUSION The legal regime governing climate change has undergone major changes since the conclusion of the UN Convention on Climate Change. In the UN Convention on Climate Change, the commitments of states, especially developing countries such as the Islamic Republic of Iran and the State of Qatar, are limited to taking appropriate actions to mitigate greenhouse gas emissions and other general commitments such as submitting periodic reports on the amount of emissions, and measures and programs taken or underway to reduce and adapt to climate change. Although the Kyoto Protocol provided for certain quantitative commitments to reduce emissions for some developed countries, it did not set specific quantitative commitments and targets for developing countries. Now, in the Paris Agreement, all parties are required to submit nationally determined contributions, which include their ambitious targets concerning mitigation and adaptation. Both Iran and Qatar submitted their mitigation plans through their INDCs and NDCs. Iran’s mitigation plan includes specific targets at two levels, one of which is conditional upon lifting of the sanctions. Qatar, on the other hand, does not specify

Climate change mitigation law and policy in the Middle East  195 any target in its mitigation plan. It is committed to presenting a national program to mitigate GHG emissions, taking into account their domestic capabilities and, of course, conditional on international support. It is noteworthy to mention that Iran is under the so-called ‘maximum pressure campaign’, imposed by the US as a unilateral sanction, and Iran is therefore unable to achieve international cooperation and support. On the other hand, Qatar is the country with a highest rate of GDP in the world, and it is therefore not too difficult for it to secure financial resources to advance its mitigation plans. Accordingly, these two states are not faced with similar difficulties in implementing their mitigation plans. Qatar is only required to adopt appropriate laws and policies in order to be able to comply with its NDC. However, Iran needs to secure financial resources, in respect of which the sanctions are making it difficult for the country to comply with its climate obligations, notwithstanding laws and policies which have already been adopted by the country. Iran incorporated mitigation plans indirectly in various laws and regulations. Meanwhile, in both countries, there is currently no specific law providing for programs of mitigation; as a result, the approach to mitigation is scattered and it seems that it is necessary to adopt particular and specific laws to obtain satisfactory results.

9. Climate change mitigation law and policy in the BRICS Rafael Leal-Arcas, Mariam Al Zarkani, Lina Jbara, Ruqaya Mohamed Mubwana, Marianna Margaritidou and Angela van der Berg

INTRODUCTION The term “BRICS” (Brazil, Russia, India, China, and South Africa) comes from the term “BRIC” (Brazil, Russia, India and China), which was coined in a 2001 report by Jim O’Neil based on the countries that first formally met in 2009, and were joined by South Africa in 2010, hence updating the acronym to “BRICS.” The objective of this collective group of countries, which share similar economic situations, was to challenge the developing countries domination of the international economy, and make the voices of developing and under-developed countries heard. It is interesting to note that the BRICS countries have been underscored as being “part of the solution to climate change mitigation.”1 Why? Because they contribute significantly to climate change. This is due to the rapid growth of their economies, and in turn their increasing energy needs and consequent emissions. However, these countries will also be greatly impacted by climate change.2 As such, these countries have a clear stake in participating in climate change mitigation. Since their formation in 2009, the BRICs have met yearly to discuss a variety of issues. Below is a summary of the main topics relating to climate change that have been discussed over the years. As a general premise, the BRICS consider climate change policies as a collaborative effort. In 2009, the initial four BRIC countries began discussing “common but differentiated responsibilities” as a base for their climate change policies. In 2011, there was talk of reforming the current situation, and more specifically, how developed countries dominated the scene. In 2012, the by then five BRICS countries made a promise to use clean and renewable energy sources, and requested international support to develop safe nuclear energy. Support for the Kyoto Protocol was highlighted in 2014. The year 2015 saw a focus on agriculture, requesting the transfer of knowledge and promotion of agricultural technologies, in the context of increased food provision. In 2016, importance was given to nuclear energy, especially with regard to meeting the goals of the 2015 Paris Climate Change Agreement. In 2017, more talks regarding green development and the low-carbon economy were discussed, with the BRICS countries requesting financial, technical and capacity-building support from developed countries. Over the years, it has become clear that the BRICS countries require both

See generally R. Leal-Arcas, “The BRICS and Climate Change” (2013) International Affairs Forum 1–5. 2 Ibid. 1

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Climate change mitigation law and policy in the BRICS  197 financial support and non-financial assistance (knowledge and technology) in promoting green energy. This chapter examines the climate-change mitigation law and policy of five major developing countries: Brazil, Russia, India, China, and South Africa. It will first analyze the case of Brazil, then India, China, Russia, and lastly South Africa.

1 BRAZIL 1.1 Introduction Brazil, a country blessed with a diverse landscape, rich in resources such as forests, water, minerals and fossil fuels, is a major global actor in the fields of agriculture, minerals and oil. Because of rapid economic and urban growth through agricultural and infrastructure expansion, there has been an increased demand for energy and resources, with unavoidable environmental impacts. While Brazil uses hydropower to meet most of the country’s electricity demand, there are still harmful ongoing activities such as deforestation and predatory agricultural practices, which contribute to heavily intertwined local and global impacts. Brazil is considered the home of a unique ecosystem which is vulnerable to the challenges of climate change. The largest rainforest in the world, the Amazon rainforest is located in Brazil, and it is known as the lungs of the planet. Due to climate change phenomena, the Amazon’s ecosystem is being negatively affected. Rising temperatures and changes in rainfall patterns cause drought, disruption in the water cycle, loss of habitats and further loss of trees. In fact, it is expected that huge part of the Amazon rainforest will be transformed into savannah.3 Meanwhile, energy needs in Brazil are on the rise. This is critical because in 2014 the World Resources Institute’s statistics indicated that Brazil’s greenhouse gas emissions contribute 2.7% of the world’s emissions.4 The level of emissions situated the country as one of the largest polluting countries in the world. Since then, Brazil has employed significant efforts by being part of major legal instruments related to the mitigation and adaptation to climate change. However, due to recent changes in Brazil’s government, there is a legitimate fear that Brazil will be unable to meet its targets in contributing to a 2 °C world. In this chapter, we will explore what possible solutions are available for Brazil to minimize its contribution to global climate change given the current social, political, environmental and technological constraints. When trying to identify Brazil’s current national outlook and overall position on climate mitigation, we find several conflicting facts. For example, Brazil is a signatory of international agreements to mitigate climate change and has set out a national plan with mitigation and adaptation measures related to climate change (see details in section 1.2 below). A rural environmental registry was created in order to monitor compliance with environmental laws,

Michael Case, “Climate Change Impacts in the Amazon: Review of Scientific Literature” (WWF) https://​wwfint​.awsassets​.panda​.org/​downloads/​amazon​_cc​_impacts​_lit​_review​_final​_2​.pdf accessed 14 August 2020. 4 E. Gladun and D. Ahsan, “BRICS Countries’ Political and Legal Participation in the Global Climate Change Agenda” (2016) 3 BRICS Law Journal 8–42. 3

198  Research handbook on climate change mitigation law which more than two-thirds of the country’s rural properties joined before the end of 2017.5 However, recent political developments have not been promising. The policies that motivated the above-mentioned decrease of greenhouse gas emissions seen between 2005 and 2012 have since been relaxed. The current government, headed by President Jair Bolsonaro since 1 January 2019, has shown additional discouraging signs. For example, the country withdrew its offer to host the 25th United Nations Conference of the Parties in November 2019, citing “the government transition process and budgetary constraints” and has mentioned that environmental policy is “suffocating” the economy.6 The president has threatened to withdraw from the Paris Agreement, and there have been many changes in the Ministry of Environment, such as decreases in budget and shifting of climate change responsibilities to the Ministry of Agriculture.7 Recent decisions include removing restrictions on indigenous reserves, instead supporting agriculture and mining activities on the lands in question.8 Sadly, Brazil has become the deadliest country in the world when it comes to land defense, recording “the worst year on record anywhere in the world, with 57 murders in 2017.”9 The Brazilian legal structure is divided into three levels: federal, state and local. According to the 1988 Brazilian Federal Constitution, all matters related to energy are legislated at the federal level, while for water resources there is a decentralization between the federal government and states, in addition to the participation of municipalities. Legislation related to the agriculture sector is maintained at the federal level, with delegation to states and municipalities by the Ministry of Agriculture. Environmental regulation with regard to environmental protection is attributed to all levels of government, with federal level rules considered as general and binding, to be supplemented by states’ and municipalities’ rules specific to local interests. In addition, there are a myriad of public and private stakeholders involved in each of the above-mentioned sectors (energy, water, agriculture, and environmental protection). As such, it is clear that the different levels of the Brazilian government are highly interdependent and interconnected. The existing structure allows for connections between different levels on issues such as climate change policymaking.10 However, there is also a struggle between conflicting interests, for example between the Ministry of Environment and the Ministry of Agriculture. The Brazilian government is fraught with corruption, and legalization of illegal acts, such as giving amnesty to those who seize lands, further institutionalizes the corruption.11 5 P. R. Rochedo and others, “The Threat of Political Bargaining to Climate Mitigation in Brazil” (2018) 8 Nature Climate Change 695. 6 L. Viscidi and N. Graham, “Brazil Was a Global Leader on Climate Change. Now It’s a Threat” (Foreign Policy, January 4, 2019) https://​foreignpolicy​.com/​2019/​01/​04/​brazil​-was​-a​-global​-leader​-on​ -climate​-change​-now​-its​-a​-threat/​ accessed 24 March 2021. 7 M.-A. Paim and others, “Mainstreaming the Water–Energy–Food Nexus through Nationally Determined Contributions (NDCs): The Case of Brazil” (2019) 20 Climate Policy 163. 8 Viscidi and Graham (n. 6). 9 “Deadliest Year on Record for Land and Environmental Defenders, as Agribusiness Is Shown to Be the Industry Most Linked to Killings” (Global Witness, 24 July 2018) https://​www​.globalwitness​ .org/​en/​press​-releases/​deadliest​-year​-record​-land​-and​-environmental​-defenders​-agribusiness​-shown​-be​ -industry​-most​-linked​-killings/​ accessed 24 March 2021. 10 Paim (n. 7). 11 S. Eaton, “Tropical Forests Are Flipping from Storing Carbon to Releasing It” (The Nation, August 30, 2018) https://​www​.thenation​.com/​article/​archive/​tropical​-forests​-are​-flipping​-from​-storing​ -carbon​-to​-releasing​-it/​ accessed 24 March 2021.

Climate change mitigation law and policy in the BRICS  199 1.2

International Legal Framework and Climate Change

Climate change is a global environmental challenge that has no borders. The long-term rise in temperature threatens species and habitats, causing severe damage to the natural resources, economic growth, and wellbeing of the country. Through developing an international legal framework, the challenges of climate change will be reduced. It will also obligate countries to adopt targets and measures to reach the optimum goal. Additionally, international frameworks introduce standards to encourage renewable energy, which will lead to emissions reductions and provide energy security for all. In the case of Brazil, it has abundant hydropower dams, which generate clean energy. Brazil has employed substantial political effort internationally and nationally by taking part in international legislation to contribute to combating climate change impacts. Similarly, the country showed a leadership role in tackling the environmental challenges, such as hosting Rio 92, known as the Earth Summit, which was held in Rio de Janeiro in 1992.12 Major legal instruments were created to mitigate climate change and reduce GHG emissions. Some of these key agreements are the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, the Vienna Declaration and Programme of Action, the Montreal Protocol, and the Paris Agreement. A The Kyoto Protocol and the Paris Agreement The Kyoto Protocol was established in 1992 and it only binds industrialized countries (Annex I countries) because they are the biggest polluters and responsible for the accumulation of emissions in the atmosphere.13 On the other hand, many developing countries (non-Annex I countries) like Brazil have ratified the agreement although they were not legally bound to reduce their emissions. In 1994, Brazil ratified the Kyoto Protocol by pledging to reduce GHG emissions, without any assigned reduction targets, and by taking initiatives through the implementation of the Clean Development Mechanism (CDM). The CDM allows countries to implement emission reduction projects in developing countries to earn certified emission reduction credits (CER), which can be traded and sold to meet the emissions targets set by the Kyoto Protocol.14 These types of market-based mechanisms, such as the Clean Development Mechanism, joint implementation, and international emission trading, help to integrate developing countries into the fight against climate change.15 For example, Brazil has focused its CDM on projects related to renewable energies as it is well known for its roles in the clean energy sector, such as the production of biofuel and hydroelectric power.16

12 Ministry of Science and Technology, “Brazil’s Initial National Communication to the United Nations Framework Convention on Climate Change” (UNFCCC 2004) https://​unfccc​.int/​resource/​docs/​ natc/​brazilnc1e​.pdf accessed 11 August 2020. 13 “What Is the Kyoto Protocol?” (UNFCCC) https://​unfccc​.int/​kyoto​_protocol accessed 3 July 2020. 14 “What Is the Kyoto Protocol?” (n. 13). 15 “What Is the Kyoto Protocol?” (n. 13). 16 Erica Reicher, “The Kyoto Protocol and Brazil: Effectiveness of Clean Development Mechanism (CDM) Projects” (2011) 6 SPICE, Philosophy, Politics, & Economics Undergraduate Journal https://​ repository​.upenn​.edu/​spice/​vol6/​iss1/​4 accessed 14 August 2020.

200  Research handbook on climate change mitigation law Furthermore, the Kyoto Protocol did not take into consideration the environmental issues faced by developing countries. In the case of Brazil, deforestation was left out, although it is a significant source of GHG emissions, and instead the CDM focused on afforestation and reforestation, establishing new forest and restoring damaged forests.17 Nevertheless, efforts were made to address the issue of deforestation, which was not highlighted in the Kyoto Protocol. Reduced Emissions from Deforestation and Degradation (REDD) was introduced in the Conference of Parties in 2005, aiming to incentivize developing countries to reduce their emissions from unsustainable land use.18 The Paris Agreement created a paradigm shift from a treaty that was Annex-structured into a harmonious global framework that started to grow from the Copenhagen Accord of 2009. The COP 21 was held in Paris in December 2015, when the international climate change agreement was approved and signed by 196 delegations, including 195 states and the European Union.19 The main objective of the COP 21 is to strengthen efforts towards reducing the temperature increase below 1.5 °C by the end of the century to witness a noticeable change on the climate.20 The Paris Agreement is considered to be balanced and flexible as it gives countries the responsibility to set a framework with their own intended nationally determination contributions (INDCs), commit to reducing emissions, and monitor these targets every five years. Brazil was one of the first major developing countries to ratify the Paris Agreement in September 2016, submit its INDC, and emphasize its willingness to do more to adapt to climate change in key sectors like agriculture, forestry and water resources.21 B Brazil’s intended nationally determined contributions (INDCs) In 2015, Brazil presented a broad scope of its INDCs to the United Nations, which included mitigation, adaptation, and means of implementation to achieve the ambitious objectives of the Paris Agreement.22 Brazil is committed to implement the INDC under the existing policies such as the National Policy on Climate Change (Law 12,187/2009), the Forest Code, and the Law on the National Structure of Conservation Units (Law 9,985/2000).23 Brazil intends to set mitigation measures to reduce GHG emissions from the largest sector, i.e., land use, land-use change and forestry (LULUCF), by 37% below 2005 levels by 2025 through restoring 12 million hectares of forest for different land use purposes.24 However, the energy, transport, industry and agriculture sectors will also have targets to meet the GHG reduction goal. Additionally, Brazil aims to reach a 45% share of renewables in the overall energy mix by 2030 and to expand the energy sources from solar, wind and biomass to at least 23%.25 Correspondingly, as the largest producer and consumer of ethanol, one of

17 Claudio Forner, “Deforestation under the UNFCCC: The Birth of a New Opportunity” (Center for International Forestry Research) https://​www​.fao​.org/​forestry/​11367​-037​4a95cafbeb​cb38e24c6e​ 3a611fe4bd​.pdf accessed 1 June 2022. 18 “UNFCCC – UN-REDD Programme Collaborative Online Workspace” (Unredd.net, 2017) https://​www​.unredd​.net/​about/​unfccc​.html accessed 11 August 2020. 19 (2017) https://​www​.gouvernement​.fr/​action/​la​-cop​-21 accessed 11 August 2020. 20 “What Is the Kyoto Protocol?” (n. 13). 21 Gladun and Ahsan (n. 4). 22 Federative Republic of Brazil, “Intended Nationally Determined Contribution” (UNFCCC). 23 Federative Republic of Brazil (n. 22). 24 Gladun and Ahsan (n. 4). 25 Paim (n. 7).

Climate change mitigation law and policy in the BRICS  201 Brazil’s INDCs is to increase the biofuel share up to 18%.26 Among these objectives, one is dedicated towards the protection of the Amazon rainforest to achieve zero illegal deforestation by enforcing the implementation of the existing Brazilian Forest Code legislation for better land management.27This code legally requires landowners in the Amazon to keep 80% of land as forest.28 In addition, the INDCs for both the transportation and industry sectors were not quantified by targets; however, Brazil aims to implement low carbon infrastructure in the industrial sector and improve the infrastructure of the transportation sector to improve the environment.29 1.3

Domestic Policies on Climate Mitigation

Reducing greenhouse gases is voluntary for developing countries. Yet, the Brazilian government has stepped in by taking serious actions to control the deforestation rate, in particular by establishing national plans and policies for climate change. In 2007, an inter-ministerial committee was formed to develop and monitor and assess the national climate change plan.30 The plan was launched in 2008 and had several targets and efforts to mitigate and adapt to climate change. Some of these targets are an 80% reduction of the deforestation rate per year by 2020, increasing the annual ethanol consumption by 11%, and increasing the co-generation of electricity production by 11.4% of the total amount by 2030.31 Following the national climate change plan, the president issued a decree for the national sector-based reduction targets of 36.1–38.9% of projected emissions by 2020, with 2000 as a baseline.32 Further implementation reduction measures were highlighted in the second Brazilian Greenhouse Gas Emissions Inventory, covering the 1990–2005 period.33 As part of Brazil’s climate change law, massive efforts and instruments were created that aim to mitigate the climate change impact. In 2009, the National Fund on climate change law (FNMC) was established to financially support projects related to education, REDD+, capacity-building, technologies, and policy development with funds of more than 26 million reais managed by the Brazilian Ministry of Environment.34 In addition, the Amazon Fund, initiated by the Brazilian government in 2008, was a national fund under the REDD+ mechanism to raise donations to invest in protecting, monitoring and conserving the Amazon Forest. Brazil is open to international funds and contributions to support global climate health. For example, the Norwegian government has donated one billion US dollars to protect this Paim (n. 7). Paim (n. 7). 28 WWF-Brazil, “Brazil’s New Forest Code: A Guide for Decision-Makers in Supply Chains and Governments” (WWF 2015) https://​www​.worldwildlife​.org/​publications/​brazil​-s​-new​-forest​-code​-a​ -guide​-for​-decision​-makers​-in​-supply​-chains​-and​-governments accessed 14 August 2020. 29 P. Gallo and E. Albrecht, “Brazil and the Paris Agreement: REDD+ as an Instrument of Brazil’s Nationally Determined Contribution Compliance” (2018) 19 International Environmental Agreements: Politics, Law and Economics. 30 “Low Carbon Green Growth Roadmap for Asia and the Pacific: Case Study – Brazil’s National Plan on Climate Change and Law” (Unescap.org) https://​www​.unescap​.org/​sites/​default/​files/​5​.​%20CS​ -Brazil​-National​-Plan​-on​-climate​-change​-and​-law​.pdf accessed 8 August 2020. 31 Ibid. 32 Ibid. 33 Ibid. 34 Ibid. 26 27

202  Research handbook on climate change mitigation law rainforest and combat desertification.35The deforestation rate in Brazil has shown an obvious decrease in recent years as a result of Brazilian national plans that have prioritized efforts to tackle unsustainable land use. A Current projections policy Climate modeling is a helpful tool for countries to understand how climate will change over time. It is a simulation of data from the past, present and future and the analysis of countries’ current policies towards climate change impact. According to the Climate Action Tracker (CAT) analysis, although there was remarkable progress in the decrease of Brazil’s emissions over the past years, scenarios have still projected that there will be an increase in emissions in most of the sectors at least until 2030. The independent analysis finding has stated that in the year 2025 emissions excluding LULUCF will be 1,056 million tons of carbon dioxide equivalent (Mt CO2eq) and 1,088 Mt CO2eq in 2030.36 Even though Brazil has INDC targets on renewables in its total energy mix, projections showed that emissions will continue to increase in the energy sector and INDCs will not be achieved if additional measures are not taken.37 In addition, the transport sector also plays an important role due to the intensity of GHG emissions that it can generate. Brazil is heavily investing in biofuels, which may help to reduce emissions. However, full decarbonization is required in the transport sector by investing more in new technologies and in electric vehicles.38 B Reality Under Brazil’s new administration, the country’s status in respect of mitigating climate change is doubtful. The country should work to mainstream climate change into its economy by mobilizing towards low carbon activities and investing more in clean energy. The current energy plan is expected to continue and expand the use of conventional sources of energy. In addition, with continuous development, projects that are leading to unsustainable land use will worsen the situation, causing failure to meet the national climate change plan set by Brazil. According to CAT, Brazil’s INDCs for 2030 and 2050 are “insufficient” to fulfill the Paris Agreement requirements with the temperature increase below 2 °C, let alone limiting it to 1.5 °C, and is compatible with an increase in temperature between 2 °C and 3 °C.39This means that Brazil should increase its willingness to protect the environment and overcome all political pressures in order to enforce the implementation of the current national plan targets by investing in market policies to shift to a long-term decarbonized economy. 1.4

Possible Solutions

Based on the above, it is clear that Brazil is at a crossroads. While it is true that for the moment, the bulk of greenhouse gas emissions result from activities such as deforestation and agricultural practices, rather than energy production, this may not remain the case in the near future.

Ibid. “Current Policy Projections, Climate Action Tracker” (Climateactiontracker.org, 2019) https://​ climateactiontracker​.org/​countries/​brazil/​current​-policy​-projections/​ accessed 11 August 2020. 37 Ibid. 38 Ibid. 39 Ibid. 35 36

Climate change mitigation law and policy in the BRICS  203 Moreover, it is logical to assume that the deciding factor in the eventual choices Brazil will make depend on the country’s leadership. For example, in the case of deforestation and predatory agricultural practices, the government’s position will ultimately decide whether there will be support for these activities or not. In addition to political will, it is important to empower climate change institutions. For example, maintaining the functions of the Inter-Ministerial Committee on Climate Change will offset the increasing power struggle of the agricultural sector.40 Since it is not possible to predict in exactly which direction the current leadership will take Brazil, it is important to continue our analysis and look into possible renewable energy options as potential mitigators of climate change. Recent studies seem to agree on one issue: hydropower alone can no longer sustain Brazil’s energy demands and offset the climate change effects of deforestation and predatory agricultural practices. Moreover, the current trend is moving towards smaller hydroelectric plants, due to their minimal environmental impacts.41 A combination of hydropower and wind power seems to be ideal due to the alternate periods of function: wind velocities are stronger during winter and spring, which is the time when rainfall decreases.42 As such, the two technologies seem to complement each other perfectly. Another positive factor is that the cost of wind farms is becoming more economically feasible.43 Bioenergy is predicted to be a major energy source in Brazil until 2050.44 As mentioned previously, the benefits of biomass are twofold: electricity generation and generation of liquid biofuels for flexible-fuel vehicles. Moreover, the residues used for biomass come from major cash crops in Brazil, such as sugarcane, soybean and maize.45 As such, it is reasonable to assume that the expansion of cultivation of these plants would have multiple benefits, such as job creation, increased crops and revenue, and increased residues used for energy and biofuels. However, it is important to proceed with caution, for fear of negative impacts on land use. Another caveat to this otherwise beneficial energy source is that flexible-fuel vehicles in Brazil may be replaced by other types of cars (e.g. electric).46 Aside from energy sources, there are other tools that can be used to mitigate climate change. For example, market-based instruments, such as high carbon taxes, could be effective in reducing emissions. Such a tool would, however, require political support, and as discussed previously, this is uncertain at the moment. 1.5 Conclusion In this section, we have analyzed the current Brazilian situation and tried to identify possible methods to mitigate global climate change given the existing social, political, environmental and technological constraints. It is clear that while Brazil had made substantial progress Paim (n. 7). R. Corrêa da Silva, I. de Marchi Neto and S. Silva Seifert, “Electricity Supply Security and the Future Role of Renewable Energy Sources in Brazil” (2016) 59 Renewable and Sustainable Energy Reviews 328. 42 Ibid. 43 Ibid. 44 A. F. P. Lucena and others, “Climate Policy Scenarios in Brazil: A Multi-Model Comparison for Energy” (2016) 56 Energy Economics 564. 45 Ibid. 46 Ibid. 40 41

204  Research handbook on climate change mitigation law between 2005 and 2012, the current political atmosphere in the country jeopardizes this laudable success. Moreover, previously the main sources of greenhouse gas emissions in Brazil were deforestation and the agriculture sector. This too is now changing, with increasing energy demands, and the very real possibility that the existing hydroelectricity network will no longer be able to support this demand by 2050. As such, if Brazil wants to successfully meet its global commitments such as the Paris Agreement and the Kyoto Protocol, it is essential that changes be made. First and foremost, the political leadership in Brazil needs to accept the fact that environmental issues are of equal importance to agricultural needs, and that the possible detrimental effects of not mitigating climate change will have very real impacts on Brazil and the whole world in a very short amount of time. Second, investment should be made into expanding renewable energy sources and creating an ideal energy mix suitable for Brazil. Finally, continued coordination with the BRICS countries is essential to keep the voices of underdeveloped countries heard.

2 INDIA 2.1 Introduction India is poised to become a key global economic power. With a population of 1.3 billion and a GDP of US$2.7 trillion,47 it is the third largest emitter of GHGs in the world, with a significant portion of its economy fueled by coal, oil and gas. A rapid urbanization rate puts further demands on cities to expand and provide infrastructure, mobility and social amenities, resulting in higher energy demands and increased emissions. This section explores various mitigation strategies in India. It also analyzes the national and regional context for reviving India’s large-scale hydroelectricity generation towards a more ambitious climate-change mitigation and energy transition policy. First of all, this section explores how India can successfully meet its climate change mitigation commitments by leveraging its megacities’ potential. The United Nations (UN) recognizes the role of non-state actors (NSAs) such as mayors, governors and non-governmental organizations (NGOs) in helping countries implement their climate actions.48 We also propose that renewable energy will drive this ambition, specifically solar and wind, mainly focusing on electricity production and transport. Finally, the section concludes by investigating the national and regional context for reviving India’s large-scale hydroelectricity generation towards a more ambitious climate-change mitigation and energy transition policy.

https://​data​.worldbank​.org/​indicator/​NY​.GDP​.MKTP​.CD​?locations​=​IN. A. Hsu, O. Widerberg, A. Weinfurter, S. Chan, M. Roelfsema, K. Lütkehermöller and F. Bakhtiari, “Bridging the Emissions Gap – The Role of Nonstate and Subnational Actors” in The Emissions Gap Report 2018. A UN Environment Synthesis Report (United Nations Environment Programme 2018). https://​wedocs​.unep​.org/​bitstream/​handle/​20​.500​.11822/​26093/​NonState​_Emissions​_Gap​.pdf​ ?isAllowed​=​y​&​sequence​=​1. 47 48

Climate change mitigation law and policy in the BRICS  205 2.2

The Dilemma between Development and Climate Change Mitigation

The last decades have spurred a debate on whether developing nations have the capacity to pursue extensive efforts aimed at climate change mitigation.49 India is now poised to become a key global economic power. With a population of 1.3 billion and a GDP of US$2.7 trillion,50 it is also the third largest emitter of GHGs in the world. Hence, irrespective of Prime Minister Modi’s commitments, any ambitious policy towards achieving this goal would have to be listed with, and probably below, other state priorities such as poverty alleviation and economic growth.51 This policy would largely entail a rapid urbanization rate and the provision of infrastructure, mobility and social amenities.

Source: Central Electricity Authority, Growth of Electricity Sector in India from 1947–2019 (May 2019) at 27, https://​cea​.nic​.in/​old/​reports/​others/​planning/​pdm/​growth​_2019​.pdf.

Figure 9.1

India’s utilities installed capacity in MW (March 2019)

However, as depicted by Figure 9.1, India’s high GHG emissions mainly derive from its reliance on coal. As the country develops, so will its current electricity deficit52 since electric-

Irem Askar Karachi, “Environmental Foreign Policy as a Soft Power Instrument: Cases of China and India” (2018) 17(1) Journal of Contemporary Eastern Asia 5–26 at 19. 50 https://​data​.worldbank​.org/​indicator/​NY​.GDP​.MKTP​.CD​?locations​=​IN. 51 Karachi (n. 49) 18–19. 52 Tommi Ekholm and Tomi Lindroos, An Analysis of Countries’ Climate Change Mitigation Contributions Towards the Paris Agreement (Research Analysis 239, VTT Technical Research Centre of Finland Ltd 2015) at 32. 49

206  Research handbook on climate change mitigation law ity (and subsequently, coal) demand is predicted to escalate.53 For instance, the expansion of electricity access to all rural villages as of April 201854 may have been a social success, but it inevitably caused electricity consumption to increase, as depicted in Figure 9.2.

Source: Central Electricity Authority, Growth of Electricity Sector in India from 1947–2019 (May 2019) at 15, https://​cea​.nic​.in/​old/​reports/​others/​planning/​pdm/​growth​_2019​.pdf.

Figure 9.2

India’s per capita consumption of electricity

Moreover, two-thirds of India is still undeveloped and further development will require a lot of energy,55 resulting in significant emissions. Despite this, India cannot afford to lose the opportunity to harness urbanization as an engine for growth as this would mean “losing the productivity advantage associated with dense population centers.”56 International Renewable Energy Agency, REMAP Renewable Energy Prospects for India (IRENA 2017) at 1–3. 54 Jennifer Perron, “Fatih Birol and David Victor on the Geopolitics of Energy” Brookings Planet Policy (2 July 2018). 55 Damien Carrington and Michael Safi, “How India’s Battle with Climate Change Could Determine All Our Fates” The Guardian (6 November 2017), https://​www​.theguardian​.com/​environment/​2017/​nov/​ 06/​how​-indias​-battle​-with​-climate​-change​-could​-determine​-all​-of​-our​-fates. 56 Shirish Sankhe and Richard Dobbs, “India’s urban rising” Financial Times (29 April 2010), McKinsey Global Institute https://​www​.mckinsey​.com/​mgi/​overview/​in​-the​-news/​urban​-rising​-in​-india. 53

Climate change mitigation law and policy in the BRICS  207 The dilemma between poverty and increased GHG emissions will continue unless and until India (a) diversifies its current electricity mix and (b) substitutes fossil fuels with non-conventional energy resources. Unfortunately, while existing policies actively pursue the first of these goals, primarily through the development of solar and wind energy,57 the current approach to the promotion of non-fossil fuels seems insufficient to meet the second objective. This is particularly the case since the expansion of renewable energy installed capacity does not have an immediate significant effect on the country’s actual electricity generation due to intermittency, distribution, and transmission issues of renewables,58 as depicted in Figure 9.3.

Source: Central Electricity Authority, Growth of Electricity Sector in India from 1947–2019 (May 2019) at 39, https://​cea​.nic​.in/​old/​reports/​others/​planning/​pdm/​growth​_2019​.pdf.

Figure 9.3

India’s utilities gross electricity generation (2018–2019)

The continuous reliance on conventional energy resources for electricity generation does not only make the country’s development GHG intensive, but might also thwart some of India’s policies which are ambitiously compatible with climate change mitigation, such as plans to electrify the mass transportation system and vehicle stock.59

57 Natural Resources Defense Council, Inc., “The Road from Paris: India’s Progress Toward its Climate Pledge” (November 2017) at 3. 58 Aparajit Pandey, “India’s Low Carbon Transition” (2016) Observer Research Foundation Occasional Paper 98 – August 2016 for the Organisation for Economic Co-operation and Development at 4. 59 Samir Saran (ed.), Financing Green Transitions (Observer Research Foundation 2019) at 99.

208  Research handbook on climate change mitigation law 2.3

India in the International Legal Framework

A Historical position The Kyoto Protocol was signed in 199760 and was at that time considered an achievement for two reasons: it had a temperature goal to limit global warming; and it prescribed the specific greenhouse gases (GHG) to be monitored and reported. However, it also received criticism for its top-down approach, which put requirements on countries to reduce GHG emissions, as well as exempting big emitters such as China and India from controlling their emissions.61 Initially, not all states ratified the agreement (to this day, the US is the only country that has not yet ratified the Kyoto Protocol) and it was considered weak and its accomplishments were generally seen as mediocre. India is a non-Annex I developing country under the Kyoto Protocol62 and is not bound by any legal obligations to mitigate its carbon footprint.63 Still, the 2008 Indian National Action Plan on Climate Change (NAPCC) includes, following amendments in 2014, 12 “National Missions” aimed at climate change mitigation, four of which are directly related to energy.64 B Nationally determined contributions India has even been considered amongst the “pioneers” to ratify the Paris Agreement65 and a “bridging nation” between developed and developing countries.66 Ever since, renewable energy integration has been an underlining theme in the country’s reforms of the energy market and the implementation of a new renewable energy policy67 pursuant to Indian’s non-fossil fuel NDC and shift in foreign policy. This was primarily demonstrated by the launch of the International Solar Alliance by Prime Minister Modi and the French President Hollande.68,69 However, there is still low optimism that India will reach its renewable energy target,70 much less start to replace its current conventional energy sources, especially in the absence

https://​unfccc​.int/​kyoto​_protocol. Michael Grubb, “Why it’s wrong to label the Kyoto Protocol a disaster” Climate Change News (10 June 2016) https://​www​.climatechangenews​.com/​2016/​06/​10/​why​-its​-wrong​-to​-label​-the​-kyoto​ -protocol​-a​-disaster/​. 62 Vasudha Foundation, “Unpacking the Paris Agreement: Implications and State of Preparedness – India” (January 2015) at 27. 63 Chukwumerije Okereke and Philip Coventry, “Climate Justice and the International Regime: Before, During, and After Paris” (2016) 7 WIREs Climate Change 834–851 at 837. 64 Gladun and Ahsan (n. 4) 30. 65 Karachi (n. 49) at 18. 66 David Bells, Simon Schunz, Tao Wang and Dhanasree Jayaram, “Climate Diplomacy and the Rise of ‘Multiple Bilateralism’ Between China, India, and the EU” (2018) 2 Carbon & Climate Law Review 85–97 at 89 and 90. 67 Ekholm and Lindroos (n. 52) at 32. 68 Katyayani Rajawat, “International Solar Alliance: India’s Potential in Clean Energy” (2019) 4(1) International Journal of Academic Research and Development 32–39 at 33. 69 Rajawat (n. 68) at 35. 70 For instance, the current estimate of the solar target’s success is barely over 50% by 2022: Varun Sivaram, “Still Shining? Our Third Annual Review on Solar Scale-Up in India” Council on Foreign Relations (20 February 2018). 60 61

Climate change mitigation law and policy in the BRICS  209 of an active energy transition and substitution policy. India submitted its Intended Nationally Determined Contribution (INDC) to the UN in 2016.71 2.4

Domestic Policies on Climate Change Mitigation

A Cities and climate change Today 55% of the world’s population lives in urban areas,72 and according to the International Energy Agency (IEA), “in 2013, the world’s urban areas accounted for about 65% of global primary energy use and produced 70% of the planet’s carbon dioxide emissions.”73 In India, in terms of population, some cities surpass countries and are called megacities. Defined as an urban agglomeration having over ten million inhabitants, five of the 33 global megacities are in India.74 Our premise is that with successfully implemented climate actions in megacities, half the battle of emissions reduction is already won. Looking at the profile of two Indian megacities, one can deduce that most of the emission intensity occurs there based on the economic activity. New Delhi has a population of 30 million,75 and a GDP of US$293.6 billion. Its economy is dominated by the service sector, mainly in information technology, telecommunications, hotels and banking. Mumbai has a population of 20 million, making it the second most populous city,76 and a GDP of US$368 billion.77 It is the commercial, entertainment and fashion center of India. B Non-state actors Globally, “much of the progress in reducing CO2 emissions is driven by mayors, governors, premiers, and corporate executives. It’s time to acknowledge that reality and move beyond traditional diplomacy by allowing cities, states, and companies to officially sign on the Paris Agreement.”78 The authors believe that sub-national involvement would facilitate emissions data accounting by equipping all stakeholders with the appropriate tools and authority. An example of the commitment and contribution of NSAs is the C40, a global network of 94 cities committed to pursue climate action. It is a platform that facilitates various initiatives to enable the mayors of the C40 and other NSAs to develop and implement climate actions.

UNFCCC, “India’s Intended Nationally Determined Contribution: Working towards climate justice” https://​www4​.unfccc​.int/​sites/​ndcstaging/​PublishedDocuments/​India​%20First/​INDIA​%20 INDC%20TO%20UNFCCC.pdf. 72 United Nations, Department of Economic and Social Affairs, Population Division, World Urbanization Prospects: The 2018 Revision (United Nations 2019) https://​population​.un​.org/​wup/​ Publications/​Files/​WUP2018​-Report​.pdf. 73 “Cities are the frontline of the energy transition,” 2018 https://​www​.iea​.org/​news/​cities​-are​-at​-the​ -frontline​-of​-the​-energy​-transition. 74 United Nations (n. 72). 75 https://​w​orldpopula​tionreview​.com/​world​-cities/​delhi​-population. 76 https://​w​orldpopula​tionreview​.com/​world​-cities/​mumbai​-population. 77 Brookings Institution, 2024 estimates, PPP-adjusted GDP ($BN) https://​en​.wikipedia​.org/​wiki/​ List​_of​_cities​_by​_GDP. 78 D. Esty and P. Boyd, “To Move Paris Accord Forward, Bring Cities and Companies on Board” (2018) Yale Environment 360. 71

210  Research handbook on climate change mitigation law Additionally, it provides a forum for cities globally to learn, exchange knowledge and engage in capacity-building.79 Five Indian cities belong to the C40: Bangalore, Chennai, Delhi NCT, Kolkata, and Jaipur. With a combined population of 68 million, the cities’ success in any mitigation actions stands to benefit India significantly. An example of an effective NSA initiative is India’s GHG inventory. The current inventories have gaps, and the data and information are met with skepticism,80 therefore introducing uncertainty as to its accuracy and usefulness. Without a robust inventory, it is impossible to develop effective mitigation strategies or actions. To address this, an alternative inventory was compiled by the GHG Platform India, a collective civil society initiative.81 “GHG Platform India draws its inspiration from a similar civil society initiative in Brazil, the System for Estimation of Emissions of GHG (SEEG). It is an excellent example of South-South Cooperation, where the Indian Platform has been enriched by the Brazilian experience and benefited from their technical inputs.”82 C Solar power In 2015 at the COP 21 in Paris, India’s Prime Minister, Narendra Modi, launched the International Solar Alliance (ISA), and further announced that India’s energy targets included an installed solar generation capacity of 100 GW by 2022. Since then, India has successfully diversified its energy mix by aggressively driving investment in renewable energy, especially wind and solar. By 2017, India had an installed capacity of about 330 GW of electricity while its peak demand was much lower at 164 GW.83 By continuing to drive a strategy of equipping residential and commercial properties with solar panels, Indian cities could significantly reduce their dependency on coal. The success of this depends on how well local governments strategize, and how mayors leverage their proximity to and influence on industry leaders, businesses, academia, NGOs and the public to contribute to climate actions. This can be achieved through awareness-building on the long-term benefits of decarbonization. City residents are more cognizant of the impacts of climate change on their daily lives, such as extreme weather events. They have better knowledge of the appropriate actions to reduce GHGs locally, such as energy-efficient buildings and transport. Cities can also negotiate competitive prices for group purchasing of clean electricity on the market, thereby driving competition from producers and distributors, and potentially drive innovation and ramp up production of clean energy. With battery technology improving, cities will have increased opportunities to harness solar energy and further drive decarbonization and rein in India’s emissions.84

https://​www​.c40​.org/​networks. S. Chakrabarty, “By the Numbers: New Emissions Data Quantify India’s Climate Challenge” (World Resources Institute 2018) https://​www​.wri​.org/​blog/​2018/​08/​numbers​-new​-emissions​-data​ -quantify​-indias​-climate​-challenge. 81 GHG platform India 2005–2015 Sub-National Estimates: 2005–2015 Series http://​ www​ .ghgplatform​-india​.org/​emissionestimates​-phase2. 82 Ibid. 83 Sivaram (n. 70). 84 Carrington and Safi (n. 55). 79 80

Climate change mitigation law and policy in the BRICS  211 D Electric vehicles In 2013 India launched a National Electric Mobility Mission Plan (NEMMP) 2020 to promote the uptake of hybrid and electric vehicles (EVs), with a target of seven million vehicle sales year-on-year from 2020 onwards. Additionally, the Faster Adoption and Manufacturing of (Hybrid and) Electric Vehicles in India (FAME-India) scheme was introduced to implement the plan, with a second phase, FAME II, launched in 2019. The scheme is based on direct incentivization with tax rebates on car loans and general tax reductions.85 In 2015 India announced a target of 30% across all vehicle types by 2030. Its success will yield multiple benefits in reducing GHGs and air emissions, creating a new mobility economic sector and reducing the dependence on oil for transport.86 If the target is achieved, the savings will translate “to 474 million tonnes of oil equivalent and 846 million tonnes of net CO2 emissions over their lifetime.”87 Cities can maintain the momentum by providing incentives such as waivers for parking fees and road tolls, and promoting the low emission vehicle sector by creating low emission zones (LEZ). The success of the London, UK LEZ can be duplicated.88 E India’s unexploited hydropower potential (1) Background India ranks fifth in the world in terms of hydropower potential.89 Yet, 69.2% of this resource remains unexploited. Unlike solar and wind energy, hydropower is both a flexible and stable energy source, which can effectively enhance the reliability of the grid system. Not only can it meet load fluctuations by the minute, but it has the potential to store energy in the form of reservoirs.90 These two characteristics make hydropower an ideal replacement for fossil fuels as a supporting energy source to renewable energies.91 From a financial standpoint, there are multiple investment deterrents including India’s regulatory uncertainty, lack of strong contract enforceability rules, and delays in the bidding process.92 However, India is privileged with one of the lowest total installed costs for large-scale hydropower projects in the world.93 Furthermore, a hydroelectricity plant’s relatively high initial capital investment required for civil works and electro-mechanical equipment 94 will be

85 FAME India Scheme Phase II, Ministry of Heavy Industries and Public Enterprises, Government of India, https://​fame2​.heavyindustry​.gov​.in/​content/​english/​15​_1​_FAMEI​.aspx. 86 P. Bhagwat et al., Charging Up India’s Electric Vehicles: Infrastructure Deployment and Power System Integration (European University Institute 2019). 87 Richa Sahay, “How Can India Transition to Electric Vehicles? Here’s a Roadmap” (World Economic Forum 2019) https://​www​.weforum​.org/​agenda/​2019/​10/​how​-can​-india​-transition​-to​-electric​ -vehicles​-heres​-a​-roadmap/​. 88 For a comprehensive overview of the London low emission zones, see https://​tfl​.gov​.uk/​modes/​ driving/​low​-emission​-zone. 89 Sanjeev Sharma and Jagdish Chandra Kuniyal, “Hydropower Development and Policies in India: A Case of Himachal Pradesh in the Northwestern Himalaya, India” (2016) 11(4) Energy Sources Part B: Economics Planning and Policy 377–384 at 378. 90 International Renewable Energy Agency, Renewable Power Generation Costs in 2014 (January 2015) at 114. 91 International Renewable Agency (n. 90) at 114. 92 Pandey (n. 58) at 5. 93 International Renewable Energy Agency (n. 90) at 117. 94 International Renewable Energy Agency (n. 90) at 115 and 117.

212  Research handbook on climate change mitigation law balanced by its low operational and maintenance costs95 as well as additional advantages such as water storage, irrigation, and flood control.96 The above has not been ignored by the Indian government, which adopted a five-year plan aimed at the exploitation of large-scale hydropower potential.97 However, large-scale hydropower projects involve a wide spectrum of social and environmental implications resulting in the failure to accelerate hydropower development.98 Currently, a range of complications such as the lack of environmental clearance, the funding deficit, and extensive bureaucratic procedures are holding back 114 hydroelectricity projects.99 Additionally, the construction of large-scale dams in India has given rise to historical controversies of social injustice.100 A prominent example of this was the Sardar Sarovar Dam.101 In order to acquire land for this project, the Indian government treated 70–85% of the local tribal population as “landless” to avoid the payment of compensation.102 While the approach has been rectified, further concerns have emerged regarding the adverse effects of hydropower dams on the surrounding ecosystem, the region’s biodiversity, and downstream rural populations. That said, it is arguable that injustice and human rights abuse would be greater in vulnerable countries, such as India, when there is inaction or lack of ambition, than if there is implementation of rigorous decarbonization policies.103 This by no means implies that environmental concerns and human rights should be ignored. Instead, there should be a revived recognition of the importance of hydropower in climate change mitigation as a way for governments to commit themselves to address the issues in order to ensure its legitimacy and sustainable development. Hence, the government should abandon its telescopic perspective to decision-making and implement inclusive participatory procedures and stakeholder engagement in environmental impact assessments to reach consensus with the local populations.104 Moreover, such policy could adopt an integrated approach105 to address matters such as navigation, regional connectivity, and flood control as well as water scarcity and agricultural productivity concerns.106

International Renewable Energy Agency (n. 90) at 118. International Renewable Energy Agency (n. 90) at 114. 97 Saeed Ahmed, Anzar Mahmoud, Ahmad Hasan, Guftaar Ahmad Sardar Sidhu, and Muhammad Fasih Uddin Butt, “A Comparative Review of China, India, and Pakistan Renewable Energy Sectors and Sharing Opportunities” (2016) 57 Renewable and Sustainable Energy Reviews 216–225 at 218. 98 Cecilia Tortajada and Udisha Saklani, “Hydropower-Based Collaboration in South Asia: The Case of India and Bhutan” (2018) 117 Energy Policy 316–325 at 319–320. 99 Tortajada and Saklani (n. 98) at 319; for further information see Ganesan Seetharaman, “Hydel Power in India is Growing at the Slowest Pace” Economic Times (27 January 2019). 100 Tortajada and Saklani (n. 98) at 319. 101 Sophie Namy, “Addressing the Social Impacts of Large Hydropower Dams” (2007) 7 The Journal of International Policy Solutions 11–17 at 12. 102 Namy (n. 101) at 12. 103 Okereke and Coventry (n. 63) at 840. 104 Sanjib Baruah, “Whose River Is It Anyway: Political Economy of Hydropower in the Eastern Himalayas” (2012) 47(29) Economic and Political Weekly 41-52 at 43. 105 Golam Rasul, Nilhari Neupane, Abid Hussain, and Binaya Pasakhala, “Beyond Hydropower: Towards an Integrated Solution for Water, Energy and Food Security in South Asia” (2019) International Journal of Water Resources Development 7. 106 Rasul et al. (n. 105) at 3. 95 96

Climate change mitigation law and policy in the BRICS  213 India’s decision to cease categorizing large hydropower projects as renewable since 2015107 and their removal from its 2022 Renewable Energy Plan108 is not a long-term solution to any of the above-mentioned obstacles related to hydroelectric power plants. Yet, there is still reluctance to completely abandon this sector. In 2018, the Indian government has approved investments in the country’s largest hydropower plant, located in the Lower Dibang Valley District of Arunachal Pradesh.109 Moreover, India has long since turned to bilateral cooperation on hydropower with Bhutan.110 (2)

The role of large hydropower projects in enhancing South Asian cooperation for cross-border electricity trade The countries of South Asia, albeit divided by geopolitical tension and historical rivalries,111 have an equal interest in promoting large-scale renewable energy to mitigate climate change, as depicted in Figure 9.4.

Source: Govinda Timilsina, “How Would Cross-Border Electricity Trade Stimulate Hydropower Development in South Asia?” (2018) World Bank Group Policy Research Working Paper 8513 at 11, https://​openknowledge​ .worldbank​.org/​bitstream/​handle/​10986/​29986/​WPS8513​.pdf​?sequence​=​1​&​isAllowed​=​y.

Figure 9.4

Hydropower potential in South Asia (MW)

Seetharaman (n. 99). Tortajada and Saklani (n. 98) at 320. 109 ET Bureau, “Cabinet Approves Investments in India’s Largest Hydropower Plant” Economic Times (17 July 2019). 110 Tortajada and Saklani (n. 98) at 320. 111 Tortajada and Saklani (n. 98) at 317. 107 108

214  Research handbook on climate change mitigation law South Asia is the most densely populated region in the world112 and a “hot spot” for climate migration,113 likely to be caused by the inundation of the Maldives as well as the coastlines of Bangladesh, Sri Lanka, Myanmar, and Pakistan.114 Another common concern relates to the potential impact of climate change on the agricultural sector, which is the largest source of employment and GDP contributor of the region.115 Finally, being all developing countries with high poverty rates,116 there is a common vision amongst them to reconcile climate change mitigation and economic growth. Currently, there is already cross-border hydroelectricity trade in the region of South Asia, based on a series of bilateral electricity trade agreements between India, Bhutan, Bangladesh and Nepal.117 Focusing specifically on hydropower, the Indo-Bhutanese bilateral cooperation has allowed India to benefit from a reliable and affordable renewable energy resource to support its peak load and reduce its GHG intensity rates.118 On the other hand, Bhutan was able to generate revenue from hydropower energy exports by relying on Indian finance and technology.119 However, at the other end of the spectrum in the India’s foreign relations is Pakistan.120 The geopolitical tensions between the two states have important repercussions on the exploitation and trade of hydroelectricity mainly in respect to shared water sources located in the contested territories of Jammu and Kashmir (e.g., Indus River basin 121). For instance, this has allowed Pakistan to raise objections to the inauguration of a 330MW hydroelectricity power plant located in Kishanganga in May 2018.122 Nonetheless, the difference between the respective electricity demands and hydropower capacity potentials of South Asian states make the region an ideal ground for international cooperation123 for harnessing and utilizing their full electricity generation potential.124 Countries with high electricity demand will be able to benefit from those with an electricity surplus125 on a broader scale than the bilateral agreements. This surplus, and subsequently any

112 Mannava Sivakumar and Robert Stefanski, “Climate Change in South Asia” in Rattan Lal et al. (eds) Climate Change and Food Security in South Asia (Springer 2010) 13–30. 113 Laura Parker, “143 Million People May Soon Become Climate Migrants” National Geographic (19 March 2018). 114 Nitin Pai, “Climate Change and National Security: Preparing India for New Conflict Scenarios” (2008) The Indian National Interest Policy Brief 1, April 2008 at 2. 115 Sivakumar and Stefanski (n. 112) at 25. 116 Rasul et al. (n. 105) at 2. 117 Govinda Timilsina, “How Would Cross-Border Electricity Trade Stimulate Hydropower Development in South Asia?” (2018) World Bank Group Policy Research Working Paper 8513 at 3. 118 Tortajada and Saklani (n. 98) at 321. 119 Amit Ranjan, “India-Bhutan Hydropower Projects: Cooperation and Concerns” (2018) Institute of South Asian Studies and National University of Singapore Working Paper 309, 17 October 2018 at 2. 120 Pai (n. 114) at 5. 121 For further reading on the dependency of India and Pakistan on the Indus River basin see Shaista Tabassum, “The Indus Basin Is Indispensable: An Agro-Hydropower Dependency of India and Pakistan” (2018) 25(1) Journal of Political Studies 257–269; for further reading on the water management conflicts in Jammu and Kashmir see Pai (n. 114) at 3–4. 122 Seetharaman (n. 99). 123 Timilsina (n. 117) at 12. 124 Timilsina (n. 117). 125 Timilsina (n. 117) at 2–3 and 12.

Climate change mitigation law and policy in the BRICS  215 revenue generation, will otherwise be wasted if potential exporting states do not have access to neighboring markets.126 Collaboration will also be essential to provide the necessary funds to cover the high initial cost of hydropower projects127 incurred by small South Asian developing countries. In return, investing states will benefit from a cost-effective solution to address growing demand, increase energy supply, and diversify energy sources to reduce GHG emissions.128 Such regional alliance for hydropower generation could initiate the establishment of an international governance framework addressing integration obstacles and disputes such as new complaints raised by the government of Bhutan relating to the low electricity purchase price, India’s Cross Border Trade of Electricity Guidelines of 2016, which are unfavorable to Bhutan especially in terms of project shareholding, debt-related issues, and the marginal participation of Bhutanese private sector and national employees in projects.129 A regional framework for large-scale cross-border hydroelectricity trade would justify the implementation of a super grid to directly transmit electricity to areas where it is needed the most on a larger scale across South Asia. India suffers from frequent outages and unplanned interruptions.130 As shown by the Indo-Bhutanese cooperation, hydroelectricity imports are able to support peak loads131 and prevent blackouts. A super grid will enhance the system’s flexibility, stability, and utilization by taking advantage of the different seasonal load profiles across South Asian countries.132 In such collaboration, India has great potential to demonstrate its regional leadership as a game-changing actor. In fact, without its support, such a plan is likely to fail not only for lack of finance, but also geographical discontinuity. Finally, on a longer-term basis, enhanced cross-border hydroelectricity trade may be the basis of a South Asian partnership to develop smart grid technology.133 While there are currently multiple obstacles to smart grid implementation,134 India can benefit from its clear technological advantage as the second largest software exporting country in the world.135 Expanding the green software technology sector will not only be in line with the current ‘Make in India’ and ‘Skill India’ government initiatives,136 but also create green jobs and if successful, be an opportunity for India to export this technology globally.

Timilsina (n. 117) at 13 and Tortajada and Saklani (n. 98) at 316. Ahmed et al. (n. 97) at 220. 128 Tortajada and Saklani (n. 98) at 316. 129 Ranjan (n. 119) at 5–7 and 9. 130 Timilsina (n. 117) at 2. 131 Tortajada and Saklani (n. 98) at 321. 132 Timilsina (n. 117) at 21. 133 Central Electricity Authority, Growth of Electricity Sector in India from 1947–2019 (May 2019) at 57. 134 For further reading see Suyash Jolly, “Smart Grid Development in India: Separating Promises from Messy Reality” presented at the KTH Royal Institute of Technology (Vetenskap Och Konst) Higher Seminar of 24 October 2016. 135 Xing Li and Zhi-Jie Cheng, “China-Russia-India—The BRICS Countries in Eurasia Are the Key Factors in the Construction of the Silk Road Economic Belt” (2016) 6(3) Journal of Literature and Art Studies 286–297 at 287. 136 Pandey (n. 58) at 2. 126 127

216  Research handbook on climate change mitigation law 2.5 Conclusion In terms of countries, India produces the third highest emissions globally, mainly from the energy sector. Most of the power runs factories in cities and provides electricity to the megacities. India is still growing in population and GDP and if it follows a path of using coal and oil to support this growth, the potential emissions outcome will be catastrophic, not just for India, but for the entire globe. By empowering cities, India can leverage their residents’ resourcefulness, innovativeness, energy and ambition. City-level climate action is unique because, for the residents, it inherently has a tangible relevance and immediacy. Cities can rapidly mobilize the appropriate resources to drive successful outcomes. Cities can also form global networks to enhance governing structures such as coalition-building and strategy implementation. India can deliver on the Paris Agreement if it embraces bold urban reforms and devolves authority to cities and supports global partnerships. It must recognize that Mumbai alone has economic strength superior to entire countries, with the potential to effectively influence a green agenda that could transform India and the world. Finally, despite the current social, environmental and diplomatic obstacles to large-scale hydropower projects and hydroelectricity trade, climate mitigation should not be debated on grounds of dystopic or utopic scenarios as effective climate change mitigation policy realistically involves tough decisions and compromises. It is only through addressing the obstacles and actively searching for solutions that the long-term merits of currently controversial strategies, such as hydropower growth, may come to light.

3 CHINA 3.1 Introduction China is the largest emitter of greenhouse gas (GHG) emissions in the world. As of 2019, the country’s share of global GHG emissions was about 27%.137 These emissions have grown by more than 340% in the last three decades138 due to a massive expansion of economic output and a high reliance on fossil fuels. GHG emissions in China started to grow again in 2017–2019, after a period of decrease in 2013–2016.139 Despite the large increase in carbon emissions since 1990, China’s GDP has grown even more, resulting in a substantial decrease of carbon emissions per unit of GDP.140 In 2017, coal accounted for more than 60% of the Chinese total energy supply and 80% of GHG emissions.141 The carbon intensity of the energy mix has increased between 1990 and https://​climateactiontracker​.org/​countries/​china/​, this share excludes emissions from land use, land-use change, and forestry. In addition, this share attributes emissions embedded in exported goods to China. China’s emissions would be lower if accounting was done according to consumption and not production, see Dirk Heine, Michael G. Faure, and Goran Dominioni, “The Polluter-Pays Principle in Climate Change Law: An Economic Appraisal” (2020) 10(1) Climate Law 94–115. 138 https://​www​.iea​.org/​countries/​china. 139 https://​www​.iea​.org/​countries/​china. 140 https://​www​.iea​.org/​countries/​china. 141 https://​www​.iea​.org/​countries/​china. 137

Climate change mitigation law and policy in the BRICS  217 2013, and since then, it has decreased slightly.142 While domestic coal supply covers a large segment of domestic coal demand, China remains the largest importer of coal globally, with imports amounting to more than 171 million tonnes in 2017.143 China also imports a substantial amount of oil and natural gas. These imports may explain China’s recent interest in developing the extraction of shale gas and coal-bed methane.144 Due to the critical role that China plays in the production of fossil fuels and GHG emissions, as well as China’s significant weight in climate-related international negotiations, China’s domestic and international laws and policies related to energy and climate change are of crucial importance to climate change action. Avoiding the severe climate-related costs of not meeting the temperature targets of the Paris Agreement145 is very difficult, if not almost impossible, unless China decarbonizes substantially. 3.2

China’s Climate Change Policy in International Negotiations: From Kyoto to Today

China’s posture in climate change negotiations has changed substantially in the last three decades. This section provides as brief overview of China’s posture on climate change-related international negotiations from the Kyoto Protocol to today. Under the Kyoto Protocol to the UNFCCC (signed in 1997 and entered into effect in 2005), China was not included in the Annex I countries, and it was thus not subject to emissions limits. The country’s substantial economic expansion between 1997 (US$1.8 trillion GDP) and 2009 (about US$5.5 trillion GDP),146 meant that China’s emissions grew substantially in that period. As China’s contribution to climate change grew, major developed economies increasingly pressured China to accept limitations to its emissions.147 Tensions on this matter between China and developed economies escalated during COP 15 (Copenhagen, 2009), at which China refused to commit to limit its emissions, and international media blamed the country for the failure of the negotiations.148 After Copenhagen, international pressure on China to mitigate its emissions continued. At COP 20 (Lima, 2014), China agreed to submit its intended nationally determined contributions (INDCs), i.e. a voluntary commitment to limit GHG emissions.149 This non-binding govern-

https://​www​.iea​.org/​countries/​china. OECD, “China Fossil Fuels Support – Country Note” (OECD 2019). 144 OECD (n. 143). 145 On the severe consequences of not meeting the stricter temperature targets of 1.5 °C over pre-industrial levels, see: IPCC, “Summary for Policy-Makers” in “Global Warming of 1.5 °C. An IPCC Special Report on the impacts of global warming of 1.5 °C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty” (IPCC 2018) available at https://​www​.ipcc​.ch/​sr15/​. 146 Values expressed in constant 2010 US$, see https://​data​.worldbank​.org/​indicator/​NY​.GDP​.MKTP​ .KD​?locations​=​CN. 147 Wei Shen and Lei Xie, “Can China Lead in Multilateral Environmental Negotiations? Internal Politics, Self-Depiction, and China’s Contribution to Climate Change Regime and Mekong Governance” (2018) 59(5–6) Eurasian Geography and Economics 708–732. 148 ZhongXiang Zhang, “Are China’s Climate Commitments in a Post-Paris Agreement Sufficiently Ambitious?” (2017) 8 Wiley Interdisciplinary Reviews: Climate Change e443. 149 https://​unfccc​.int/​news/​lima​-call​-for​-climate​-action​-puts​-world​-on​-track​-to​-paris​-2015. 142 143

218  Research handbook on climate change mitigation law ance approach was in line with China’s preferences on the subject matter and enabled negotiations to overcome the Kyoto approach of a strict separation between Annex I and non-Annex I countries’ obligations to mitigate climate change.150 China had a leading role among developing nations in bringing about this result. Despite India and Brazil taking a similar stance on the subject matter, they are reported to have conducted negotiations mainly prompted by China.151 The advances made in COP 20 facilitated reaching a global climate change agreement at COP 21. In November 2014, ahead of COP 21, China and the US released a historic joint statement on climate change152 whereby the two largest economies and GHG emitters recognized their contribution to anthropogenic climate change and expressed their ambition to collaborate to address the problem.153 As a sign of its commitment to contribute to international cooperation on climate change, China committed before COP 21 to fund US$3.1 billion for climate cooperation in developing countries through a South–South Climate Cooperation Fund.154 Negotiations at COP 21 resulted in the Paris Agreement. The temperature goals of this agreement are to keep the increase in global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the increase to 1.5 °C. At COP 21, China coordinated its position with the other BRICS countries to maintain differentiation between developed and developing countries.155 These efforts resulted in a compromise between BRICS and the US: the Paris Agreement still recognizes the principle of common but differentiated responsibilities and respective capabilities (CBDRRC), with the addition of “in the light of different national circumstances,” to allow a dynamic interpretation of this principle, in line with US demands. In the Paris negotiations, China also played a significant role in strengthening the commitment from developed nations to mobilize US$100 billion per year for climate change mitigation and adaptation by requiring the setting up of a “concrete roadmap,”156 and obtaining the inclusion in Article 2 of the Paris Agreement of the aim of “making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.”157 Countries also agreed to a five yearly update of countries’ voluntary commitments; this was a point that was initially opposed by China, but to which China agreed in light of the concessions made by other countries.158 After the US officially informed the United Nations about its intention to withdraw from the Paris Agreement in summer 2017, EU leaders and international media urged China to take a more active role in climate change negotiations.159 Since then, the Chinese government has repeatedly reaffirmed its commitment to the Paris Agreement, and in October 2017,

Zhang (n. 148). Zhang (n. 148) at 3. 152 https://​obamawhitehouse​.archives​.gov/​the​-press​-office/​2014/​11/​11/​us​-china​-joint​-announcement​ -climate​-change. 153 Shen and Xie (n. 147). 154 See, China Daily, “China South–South Climate Cooperation Fund benefits developing countries” (30 November 2015), available at https://​www​.chinadaily​.com​.cn/​world/​Xi​attendsPar​isclimatec​ onference/​2015​-11/​30/​content​_22557413​.htm. 155 Zhang (n. 148) at 4. 156 Shen and Xie (n. 147). 157 Shen and Xie (n. 147). 158 Shen and Xie (n. 147). 159 Shen and Xie (n. 147). 150 151

Climate change mitigation law and policy in the BRICS  219 a high-profile report to the 19th Party Congress President Xi Jinping has announced China’s intention to lead in international cooperation to address climate change.160 At COP 24 (Katowice, 2018), China played a central role in negotiations, acting as a bridge between developed nations and developing ones. A key issue at COP 24 was establishing a rulebook for the Paris Agreement, which included rules on monitoring, reporting, and verification of emissions. China reached an agreement with the EU and other major economies to accept a common set of standards. In line with its previous position, China negotiated to obtain flexibility on implementation, in light of the limited capacity of the developing nations.161 3.3

Key Domestic Policies in Favor of and Against Climate Change Mitigation

This section provides a brief overview of China’s key domestic policies that support or hinder climate change mitigation. A Carbon pricing The Chinese government has long been interested in carbon pricing. In 2011, it announced plans to implement a domestic emission trading scheme (ETS). In the subsequent years, pilot ETS programs were launched in eight cities and provinces: Beijing, Chongqing, Fujian, Guangdong, Hubei, Shanghai, Shenzhen, Tianjin. Despite the sub-national nature of these programs, they have the potential to contribute substantially to climate change mitigation as they account for between 40% and 60% of emissions released in these jurisdictions,162 and these jurisdictions combined release more GHG than the whole of India, the third largest GHG emitter worldwide. However, as of today, this potential is not entirely untapped as most of these programs allocate emissions for free and have significant liquidity issues.163 Alongside these pilot ETSs, China has started collaborations with other jurisdictions to increase domestic knowledge in ETSs, including the EU and California.164 These efforts aim to build sufficient capacity to implement a Chinese national ETS. This ETS was initially announced before COP 21 (Paris) and was launched in 2017 with a roadmap to develop the ETS. According to this roadmap, the ETS will initially cover the power sector and then expand to other sectors.165 When it becomes operational, China’s national ETS is expected to be the largest ETS worldwide in terms of GHG emissions covered, as it would cover about 26% of Chinese GHG.166

Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era,” Delivered at the 19th National Congress of the Communist Party of China, 18 October 2017, available at http://​www​.xinhuanet​.com/​english/​special/​2017​-11/​03/​c​_136725942​.htm. 161 David Sandalow, Guide to Chinese Climate Policy 2019 (Columbia – SIPA Center on Global Energy Policy 2019). 162 Beijing accounts for 45% of GHG emissions, Chongqing 50%, Fujian 60%, Guangdong 60%, Hubei 45%, Shenzhen accounts for 40%, Shanghai accounts for 57%, and Tianjin 55%, see https://​ca​ rbonpricin​gdashboard​.worldbank​.org/​map​_data. 163 Sandalow (n. 161). 164 Sandalow (n. 161). 165 World Bank, State and Trends of Carbon Pricing 2019 (World Bank 2019). 166 https://​ca​rbonpricin​gdashboard​.worldbank​.org/​map​_data. 160

220  Research handbook on climate change mitigation law The implementation of the national ETS has been slower than initially anticipated because there are substantial differences in capacity between authorities and companies located in different regions.167 China is currently setting the basis for the monitoring, reporting, and verification requirements for the national ETS,168 after having released draft ETS regulation for public consultation in 2019.169 In the short term, the national ETS is expected to work in parallel with pilot programs implemented at the city and province level, as there is little overlap between the emissions covered by these schemes.170 Subsequently, these sub-national ETSs are expected to be integrated into the national one, as the latter expands its coverage.171 B Energy efficiency China has long focused on improving the energy efficiency of its economy. Since the 1980s, many Five-Year Plans172 include increasingly ambitious energy intensity goals, and the plan for the period 2016–2020 sets a national target of reducing energy intensity 15% below 2015 levels by 2020.173 At the time of writing, the 14th Five-Year Plan (for the period 2021–2025) has not been released yet. To achieve these five-year targets, the NDRC sets annual targets at the national level.174 For instance, the goal for 2019 was to reduce energy consumed per unit of GDP by 3%.175 In addition, each province is expected to reach an energy intensity target, the achievement of which is used to assess the performance of local officials by the central government.176 Furthermore, the central government acts also at the sectoral level (e.g. in the building sector)177 by enacting regulations.178 Lastly, the government provides direct funding, subsidized loans, and credit guarantees to spur investments in energy efficiency.179 C Renewable energy In 2018, renewable energy accounted for about 12% of Chinese primary energy consumption, with hydropower accounting for about 8% and the remainder divided between wind, solar, biomass, and geothermal.180 Various policies have supported the creation of this energy gen World Bank (n. 165). World Bank, State and Trends of Carbon Pricing 2020 (World Bank 2020). 169 World Bank (n. 165). 170 https://​ca​rbonpricin​gdashboard​.worldbank​.org/​map​_data. 171 https://​icapcarbonaction​.com/​en/​ets​-map. 172 Five Years Plans are development initiatives undertaken by the Chinese government since 1953 to set economic objectives (e.g. growth targets) and reforms. 173 Sandalow (n. 161). 174 Sandalow (n. 161). 175 In 2019, China failed to achieve this target, reaching a reduction of 2.6%, see https://​www​.reuters​ .com/​article/​us​-china​-parliament​-energy/​china​-misses​-2019​-energy​-efficiency​-target​-state​-planner​ -idUSKBN22Y0E7​#:​~:​text​=​SHANGHAI​%20(Reuters)​%20​%2D​%20China​%20fell​,in​%20a​%20report​ %20to​%20parliament. 176 Sandalow (n. 161). 177 For a discussion of China’s approach to green buildings, see Y. Shen and M. Faure, “Green Building in China” (2021) 21 International Environmental Agreements 183–199. 178 Sandalow (n. 161). 179 Sandalow (n. 161). 180 BP, “BP Statistical Review – 2019 China’s energy market in 2018” (2019), available at https://​ www​.bp​.com/​en/​global/​corporate/​energy​-economics/​energy​-outlook/​country​-and​-regional​-insights/​ china​-insights​.html. 167 168

Climate change mitigation law and policy in the BRICS  221 eration capacity throughout the years. Earlier policies focused primarily on R&D investments and product popularization and targeted the supply side; subsequently, the focus has gradually shifted towards demand-side policies and aimed at expanding the domestic market.181 The Five-Year Plan for the period 2016–2020 sets a 15% target for 2020 and a 20% target by 2030 in terms of the share of renewable energy in primary energy consumption, as well as an increase in renewable power capacity to 680 GW by 2020.182 The plan aims to reach these targets primarily by increasing renewable power capacity, promoting offshore wind power, and increasing the distribution of solar energy generation.183 This plan also calls for innovation in renewable energy technology and for the reduction of curtailment in renewable power.184 In recent years, the cornerstone of China’s policy on solar and wind energy has been feed-in tariffs (FIT), meaning instruments that offer generators that sell electricity to the grid long-term guaranteed purchase prices.185 Since 2018, China has announced a shift away from FIT in favor of two alternative policies: (i) auctions where developers that bid prices below or equal to those of coal tariffs are guaranteed the purchase of energy for at least 20 years at fixed prices, and (ii) renewable electricity consumption quotas which impose an obligation on individual companies (e.g. grid operators and large energy users) to purchase minimum amounts of renewable energy.186 This shift is primarily motivated by the need to reduce costs related to the program’s feed-in tariffs and administrative challenges.187 The auctioning system makes renewables compete with coal, and thus it risks curtailing the expansion of solar and wind energy in the coming years compared to a system like the FIT, which supports them.188 Although China continues leading in terms of increases in wind and solar capacity worldwide, the combined added capacity (solar and wind) dropped from 66 GW in 2018 to 56 GW in 2019.189 D Support for fossil fuels As in many, if not all, jurisdictions, China’s energy policy approach is not entirely consistent with a sustainable transition. Alongside policies that aim at mitigating carbon emissions, the Chinese government supports the production and consumption of fossil fuels in various ways. There are different ways to identify the support that the government grants to fossil fuel consumption.190 According to the International Energy Agency (IEA),191 in 2019 China ranked second in terms of subsidizing fossil fuels (oil, and electricity produced with fossil fuels), after Iran, at 181 Liang-Cheng Ye, João F. D. Rodrigues, and Hai Xiang Lin, “Analysis of Feed-In Tariff Policies for Solar Photovoltaic in China 2011–2016” (2017) 203 Applied Energy 496–505. 182 IEA, “China 13th Renewable Energy Development Five Year Plan (2016–2020),” 2018. 183 IEA (n. 182). 184 Renewable energy curtailment is a significant issue in China, as a large fraction of renewable energy generated is not absorbed by the grid; Michael Standaert, “Why China’s Renewable Energy Transition Is Losing Momentum” (2019) Yale Environment 360. 185 Ye et al. (n. 181). 186 Sandalow (n. 161). 187 Sandalow (n. 161). 188 Standaert (n. 184). 189 Anders Hove, “Current direction for renewable energy in China,” Oxford Energy Comment, 2020. 190 For a recent review of different ways to define fossil fuel subsidies, see World Bank (n. 165). 191 The IEA uses a price-gap analysis approach, according to which domestic fuel prices are compared with a reference price, such as the import parity price, and this gap is then multiplied by the quantity of fuel consumed in a jurisdiction, see IEA, World Energy Outlook 2018 (IEA 2018).

222  Research handbook on climate change mitigation law least in absolute terms (more than US$30 billion).192 These subsidies vary substantially across time, primarily due to changes in international prices for fossil fuels.193 For instance, they were about US$25 billion in 2015, but over US$50 billion in 2018.194 In relative terms (subsidies/GDP), Chinese subsidies are relatively low (0.2%) compared to many other countries. According to the IMF’s post-tax estimates,195 in 2015 (latest estimates available), China was by far the largest subsidizer in absolute terms of fossil fuels worldwide (US$1.4 trillion).196 This large number is partially the result of the air quality harm of coal consumption, which is included in the IMF’s calculations. China was also the country with the highest fossil fuel subsidies (post-tax estimate) in 2013, amounting to US$1.8 trillion.197 The OECD keeps track of China’s budgetary and tax expenditure policies that support fossil fuel production and consumption in its Inventory of Support Measures for Fossil Fuels.198 According to these estimates, support dropped significantly (by about half) in 2015, but increased again in 2016, even though only slightly. The lion’s share of support accrues to oil.199 In 2009, the G20 countries pledged to phase out, in the medium-term, fossil fuel subsidies that incentivize wasteful consumption.200 As the first step towards this commitment, China and the US announced their intention to undergo a process of reviewing and peer-reviewing their fossil fuel subsidy policies under the auspices of the G20. The peer-review process was completed in 2016, and the analysis indicated that the Chinese government supported fossil fuel subsidies in various ways.201 For instance, the residential sector benefited from a lower VAT rate applied to certain energy products (e.g. coal gas and natural gas).202 Some professional users also benefited from fuel subsidies, such as fishermen, public transport companies, and taxi drivers.203 These subsidies are expected to decrease in the future, down by 60% in 2020, after which further measures might be introduced.204

https://​www​.iea​.org/​data​-and​-statistics/​charts/​value​-of​-fossil​-fuel​-subsidies​-by​-fuel​-in​-the​-top​-25​ -countries​-2019. 193 World Bank (n. 165). 194 https://​www​.iea​.org/​data​-and​-statistics/​charts/​value​-of​-fossil​-fuel​-subsidies​-by​-fuel​-in​-the​-top​-25​ -countries​-2019. 195 The International Monetary Fund (IMF) provides pre-tax and post-tax estimates of fossil fuel subsidies. While the former are estimated using a method that is similar to the one used by the IEA, post-tax subsidies include pre-tax subsidies and tax expenditures. Tax expenditures include the external cost of consuming fossil fuels, such as climate-related harm, air pollution, and traffic congestion. See David Coady et al., “Global fossil fuel subsidies remain large: An update based on country-level estimates” (2019) 19.89 IMF Working Papers 39. 196 Coady et al. (n. 195). 197 David Coady et al., “How Large Are Global Energy Subsidies?” (2015) 15.105 IMF Working Papers. 198 OECD (n. 143). 199 OECD (n. 143). 200 G20, “G20 Leaders Statement: The Pittsburgh Summit,” September 24, 2009. 201 G20, “China’s efforts to phase out and rationalize its inefficient fossil-fuel subsidies: A report on the G20 peer review of inefficient fossil-fuel subsidies that encourage wasteful consumption in China” (2016). 202 G20 (n. 201). 203 G20 (n. 201). 204 OECD (n. 143). 192

Climate change mitigation law and policy in the BRICS  223 3.4

Is China on a Sustainable Climate Change Trajectory?

China’s intended nationally determined contributions (INDCs) include the following critical economy-wide commitments: peak carbon emissions around 2030 and strive to peak earlier; reduce carbon emissions per unit of GDP by 60–65 % by 2030 over 2005 levels; reach non-fossil fuel primary energy consumption levels of about 20 % by 2030; and increase forest stock volume by 4.5 billion cubic meters by 2030 over 2005 levels.205 It is unclear whether these commitments include LULUCF.206 Research indicates that China is currently on a good course to meet its pledge to peak emissions before 2030,207 and according to NDRC, China’s carbon intensity has declined by 46%.208 Despite some uncertainty, research indicates that China can reach a 20% share of primary energy consumption from non-fossil fuel sources by 2030, but achieving this aim may require additional policy action.209 Despite the existence of challenges in China’s legal framework to increase the forest stock,210 some Chinese forestry projects have been recognized as very successful.211 China announced in 2019 that it had already met the pledge to increase the forest stock, 11 years earlier than required by the INDC.212 Overall, China is also on a good course to meet its INDC.213 China’s good track record does not necessarily mean that the country is moving towards a sustainable future. According to Climate Action Tracker, China’s first INDC is not aligned with the temperature targets of the Paris Agreement, as it lacks sufficient ambition.214 However, China’s good track record in meeting the INDC’s targets brings hope that the second INDC will be substantially more ambitious.

The unofficial translation of the Chinese INDC is available at https://​www4​.unfccc​.int/​sites/​ submissions/​indc/​Submission​%20Pages/​submissions​.aspx. 206 https://​climateactiontracker​.org/​countries/​china/​pledges​-and​-targets/​. 207 Zhifu Mi et al., “Socioeconomic impact assessment of China’s CO2 emissions peak prior to 2030” (2017) 142 Journal of Cleaner Production 2227–2236; Kelly Sims Gallagher et al., “Assessing the Policy Gaps for Achieving China’s Climate Targets in the Paris Agreement” (2019) 10(1) Nature Communications 1–10. 208 Jonathan Watts, “China sets first targets to curb the world’s largest carbon footprint,” The Guardian (November 26, 2009); NDRC, “China’s Policies and Actions for Addressing Climate Change” (November 2018) at 1. 209 Nan Zhou et al., “A Roadmap for China to Peak Carbon Dioxide Emissions and Achieve a 20% Share of Non-Fossil Fuels in Primary Energy by 2030” (2019) 239 Applied Energy 793–819; Gallagher (n. 207). 210 For instance, see Yixin Xu, “An Analysis of China’s Legal and Policy Framework for the Sustainability of Foreign Forest Carbon Projects” (2017) 7(2–3) Climate Law 150–184. 211 UNEP, “Chinese Initiative Ant Forest Wins U.N. Champions of the Earth Award” (2019), available at https://​www​.unenvironment​.org/​news​-and​-stories/​press​-release/​chinese​-initiative​-ant​-forest​-wins​ -un​-champions​-earth​-award​#:​~:​text​=​19​%20September​%202019​%20​%2D​%2D​%20Ant​,of​%20China's​ %20most​%20arid​%20regions. 212 Sandalow (n. 161). 213 Michel den Elzen et al., “Are the G20 Economies Making Enough Progress to Meet Their NDC Targets?” (2019) 126 Energy Policy 238–250. 214 https://​climateactiontracker​.org/​countries/​china/​pledges​-and​-targets/​. 205

224  Research handbook on climate change mitigation law 3.5

Are China’s Trade Ambitions Consistent with Global Success on Climate Change?

Although China is on a good course to meet its INDC targets, its trade and commercial ambitions pose a severe risk of hindering global efforts to curtail carbon emissions. This section provides an overview of the sources of these risks. China’s current most significant trade endeavor is the Belt and Road Initiative (BRI). The BRI was announced in 2013 and aimed to foster economic cooperation and development and cultural exchange between China and other participating countries.215 The BRI has two main components: the Silk Road Economic Belt, which links China to Europe via three routes (Central Asia, Persian Gulf, and West Asia), and the 21st Century Maritime Silk Road, which will connect China to Europe via the South China Sea and the Indian Ocean.216 The bulk of infrastructure investments is destined for 68 countries with different levels of development (e.g. going from South Korea to Ethiopia).217 However, the initiative has a broader geographical, political, and economic scope; as of January 2020, the Chinese government has entered cooperation agreements related to BRI with 138 countries and 30 international organizations.218 The Chinese government has repeatedly stressed that the BRI should foster green development,219 and has launched several green development policies at the Second Belt and Road Summit in 2019. For instance, these initiatives include the Belt and Road Green Cooling Initiative, which promotes, via advocacy and capacity-building activities, the deployment of energy-efficient technologies in the sectors of cooling and air conditioning.220 The Chinese government has also issued the “Guidance on Promoting Green Belt and Road,” which promotes a decisive green narrative of the BRI.221 For instance, the former calls companies to “to prioritize low-carbon, energy-saving, environment-friendly and green materials and technical processes”222 and aims to “guide the businesses to tighten their R&D efforts on key technologies to address climate change.”223

National Development and Reform Commission, Ministry of Foreign Affairs, and Ministry of Commerce of the People’s Republic of China, “Vision and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road” (2015), available at http://​2017​.beltandroadforum​ .org/​english/​n100/​2017/​0410/​c22​-45​.html. 216 SCIO, “Vision and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road” (SCIO 2016) http://​www​.scio​.gov​.cn/​xwFbh/​xwbfbh/​yg/​2/​Document/​1476317/​ 1476317​.htm. 217 L. Zhou, S. Gilbert, Y. Wang, M. Muñoz Cabre, and K. P. Gallagher, “Moving the Green Belt and Road Initiative: From Words to Actions” Working Paper (World Resources Institute 2018) available at http://​www​.wri​.org/​publication/​moving​-the​-green​-belt. 218 Johanna Coenen et al., “Environmental Governance of China’s Belt and Road Initiative” (2021) 31(1) Environmental Policy and Governance 3–17. 219 Xi Jinping, “Speech at Opening of Belt and Road Forum” Global Times (May 14, 2017). 220 Hu Min and Diego Montero, “Leveraging China’s ‘Green Soft Power’ for Responsible Belt and Road Initiative Investment” Forbes (May 14, 2019). 221 Coenen (n. 218). 222 NDRC, MEP, MOFCOM and MFA, “Guidance on Promoting Green Belt and Road” (May 8, 2017) (in English). 223 NDRC, MEP, MOFCOM and MFA (n. 222). 215

Climate change mitigation law and policy in the BRICS  225 Despite these efforts, many analysts have expressed severe concerns about the climate change impacts of the BRI.224 The “Guidance on Promoting Green Belt and Road” does not contain any implementation or enforcement mechanisms, which leaves the document a mere instrument of moral persuasion.225 Symptomatic of the Chinese government’s low attention towards climate-related issues in BRI development is the fact that there is no requirement set by the Chinese government to evaluate the environmental or climate change impacts of BRI projects approved by Chinese authorities.226 Climate risks related to BRI are exacerbated by the limited governance systems and capacity to enforce the environmental standards of many BRI countries;227 in some instances, governments may also prioritize short-term economic growth over environmental integrity.228 The lack of rules/guidelines/enforcement capacity that bind BRI-related activities to green development is worrying, as these activities have the potential to severely set back climate change action in a large number of countries. These concerns exist mainly because a large part of BRI’s related investments concern transportation infrastructure (e.g. highways, railroads, port infrastructure) and energy-related infrastructure (e.g. thermal power plants, oil and gas pipelines, mining).229 According to a recent study, between 2014 and 2017, much investment has gone into the development of fossil fuels.230 For instance, more than 60% of loans financed entirely by the China Development Bank and/or China Eximbank were in fossil fuels, as were more than 90% of SRF’s investments in the energy sector, and 95% of cross-border investments in energy made by Chinese state-owned enterprises.231 The concern exists that these investments may lock many BRI countries into a highly fossil-fuel dependent development pathway.232 In particular, a significant source of concern among analysts is the large proportion of BRI investments in coal-fired power plants.233 A recent study finds that BRI countries (including China), which currently release about 28% of global carbon emissions, may account for 66% of global carbon emissions in 2050 unless stronger climate action is taken.234 Other sources of concern related to the effects of land-use change and deforestation are the construction of roads and railroads.235 In addition, potential mode transport shifts that favor more polluting modes of transports (e.g. a shift from rail transport to road transport), or trade growth favored by higher connectivity, may also increase carbon emissions.236 The net effects

224 Jonathan Elkind, “Toward a Real Green Belt and Road” (Columbia-SIPA Center on Global Energy Policy 2019); Zhou et al. (n. 217); Coenen (n. 218). 225 Sandalow (n. 161) at 130. 226 Elkind (n. 224). 227 Elkind (n. 224). 228 Elkind (n. 224). 229 Zhou et al. (n. 217). 230 Zhou et al. (n. 217). 231 Zhou et al. (n. 217). 232 Zhou et al. (n. 217). 233 For a review of the BRI-related investments in coal-fired power plants up to 2016, see Ren Peng, Liu Chang and Zhang Liwen, “China’s Involvement in Coal-Fired Power Projects Along the Belt and Road” (Global Environmental Institute 2017). 234 Ma Jun et al., “Decarbonizing the Belt and Road: A Green Finance Roadmap” (Tsinghua University 2019). 235 Elizabeth Claire Losos et al., “Reducing Environmental Risks from Belt and Road Initiative Investments in Transportation Infrastructure” (World Bank 2019). 236 Losos et al. (n. 235).

226  Research handbook on climate change mitigation law of the transport-related investments linked to BRI activities are uncertain, and, to the best of our knowledge, they have not been estimated so far.237

4 RUSSIA 4.1 Introduction Russia is the fourth-largest emitter of GHG emissions globally, after China, the US, and India. As of 2019, the country’s share of global GHG emissions was about 4.5%.238 In absolute terms, Russia’s GHG emissions have decreased substantially since 1990,239 mainly due to the economic decline that the country underwent after the collapse of the Soviet Union. While carbon emissions have remained relatively stable since 2000, the economy has grown, resulting in a significant reduction of carbon emissions per unit of GDP, especially in the period 1998–2008.240 In 2017, natural gas accounted for the lion’s share of total energy supply (about 50%), with oil contributing about 20%, and coal more than 15%.241 Non-fossil fuel energy supply is dominated by nuclear power, followed by hydropower.242 In the same year, natural gas accounted for more than 50% of carbon emissions, and coal for about 25%.243 The carbon intensity of the energy mix has decreased reasonably steadily between 1990 and 2017.244 Russia is a major player in climate change mitigation, being the third-largest producer of fossil fuels worldwide, and having the third largest reserve of coal and the second largest of natural gas.245 Russia is also the third-largest producer of oil, after the US and Saudi Arabia.246 Overall, Russia accounted for about 10% of primary energy production worldwide and 16% of international trade of energy in 2016.247 Due to the significant role of Russia’s energy production in the global supply, the country’s approach to climate change mitigation has significant consequences outside its domestic borders. 4.2

Russia’s Climate Change Policy in International Negotiations: From Kyoto to Today

Understanding Russia’s posture in climate change negotiations requires consideration of the country’s main drivers for the energy transition. Although Russia might be one of the econo-

Losos et al. (n. 235). https://​www​.statista​.com/​statistics/​449817/​co2​-emissions​-russia/​#:​~:​text​=​In​%202019​%2C​ %20Russia​%20accounted​%20for​,the​%20fourth​%20highest​%20volume​%20worldwide. 239 https://​www​.statista​.com/​statistics/​449817/​co2​-emissions​-russia/​#:​~:​text​=​In​%202019​%2C​ %20Russia​%20accounted​%20for​,the​%20fourth​%20highest​%20volume​%20worldwide. 240 https://​www​.iea​.org/​countries/​russia​#analysis. 241 https://​www​.iea​.org/​countries/​russia​#analysis. 242 https://​www​.iea​.org/​countries/​russia​#analysis. 243 https://​www​.iea​.org/​countries/​russia​#analysis. 244 https://​www​.iea​.org/​countries/​russia​#analysis. 245 OECD, “Russia Fossil Fuels Support – Country Note” (OECD 2019). 246 OECD (n. 245). 247 https://​www​.eriras​.ru/​files/​forecast​_2016​.pdf. 237 238

Climate change mitigation law and policy in the BRICS  227 mies most harmed by not meeting the Paris Agreement’s temperature targets,248 and despite the recognition of climate-related risks by Russian authorities,249 climate change mitigation does not feature prominently in Russia’s policy priorities. Various factors account for this situation. A primary reason is that fossil fuel production is a significant segment of the Russian economy. As of 2017, hydrocarbons accounted for about 25% of GDP, 40% of revenues of the federal budget, and 65% of earnings from exports.250 While the high reliance of the Russian economy on fossil fuels reduces the country’s incentives to act vigorously on climate change mitigation at the domestic level, the risks that global decarbonization poses to the country’s economy hinder Russia’s interest in pushing for climate action abroad. For instance, the Energy Research Institute of the Russian Academy of Sciences (ERI RAS) estimates that a global sustainable energy transition may severely impact the contribution of oil and gas to the Russian economy.251 A recent empirical study estimates the impact on the Russian economy of climate change mitigation policies implemented abroad up to 2050 and finds that these interventions will reduce Russia’s GDP yearly growth rate by about 0.5%.252 Another factor, not necessarily unrelated, that reduces Russia’s climate ambition is the widespread skepticism among the Russian elite on the anthropogenic nature of climate change.253 This skepticism has been repeatedly expressed by academics and critical policymakers, and has sometimes been accompanied by the idea that moderate climate change could be beneficial to the Russian economy.254 A recent survey conducted in 26 countries indicates that the Russian population is among the least worried about climate change.255 A third factor that hinders Russia’s ambition in climate change mitigation is that Russian emissions have decreased considerably since the 1990s. Although this decrease was mainly a result of the decline of the Russian economy in the aftermath of the Soviet Union’s collapse, the Russian government has often argued that the country has already substantially contributed to reducing carbon emissions.256 Despite the low domestic incentives to take action at the international level to mitigate carbon emissions, Russia’s stance in international negotiations has not always been hostile to See Matthew E. Kahn et al., “Long-Term Macroeconomic Effects of Climate Change: A Cross-Country Analysis” (2019) National Bureau of Economic Research, Paper No. w26167. 249 The Climate Doctrine (adopted in 2009), recognizes that climate change poses a threat to the Russian Federation, but adds that human activities may contribute to climate change, see Anna Korppoo, Max Gutbrod, and Sergey Sitnikov, “Russian Law on Climate Change” in Kevin R. Gray, Richard Tarasofsky, and Cinnamon Carlarne (eds), The Oxford Handbook of International Climate Change Law (Oxford University Press 2016). 250 Tatiana Mitrova and Yuriy Melnikov, “Energy Transition in Russia” (2019) 3 Energy Transitions 73–80, at 74. 251 A.A. Makarov, L.M. Grigoriev, and T.A. Mitrova (eds), Global and Russian Energy Outlook 2016 (ERI RAS – ACRF 2016) 198. 252 Igor Makarov, Henry Chen, and Sergey Paltsev, “Impacts of Climate Change Policies Worldwide on the Russian Economy” (2020) Climate Policy 1–15. 253 Mitrova and Melnikov (n. 250). 254 Guri Bang, Gørild Heggelund, and Jonas Vevatne, “Shifting Strategies in the Global Climate Negotiations” CICERO Report (2005). Some research indicates that the Russian economy may benefit from moderate climate change, see for an overview, Kahn et al. (n. 248). 255 https://​www​.pewresearch​.org/​global/​2019/​02/​10/​climate​-change​-still​-seen​-as​-the​-top​-global​ -threat​-but​-cyberattacks​-a​-rising​-concern/​. 256 See, for instance, https://​www​.climatechangenews​.com/​2019/​09/​23/​russia​-formally​-joins​-paris​ -climate​-agreement/​. 248

228  Research handbook on climate change mitigation law climate action. However, Russia’s adherence to climate action has been primarily motivated by non-climate concerns. Notably, Russia’s position in respect of climate change mitigation during the negotiations that led to the Kyoto Protocol was largely dictated by potential economic gains. The weak economic condition of the country in the 1990s, and the related drastic reduction in GHG emissions that followed the collapse of the Soviet Union, put Russia in a position to negotiate a fairly favorable deal: the country agreed to not increase GHG emissions above 1990 levels by 2012, which was an easy target to meet given that emissions had plummeted by 34% in the period 1990–1997.257 This target could have also allowed Russia to sell some of its emission reduction allowances through an international emission trading mechanism to other countries, especially the US.258 The economic attractiveness of this arrangement decreased substantially in 2001 after the US withdrew from the Kyoto Protocol. In the aftermath of this event, Russia used the Kyoto Protocol’s ratification as a bargaining chip in other international negotiations, including the membership of Russia in the World Trade Organization.259 Russia finally ratified the Kyoto Protocol in 2004. In the negotiations that lead to the 2009 Copenhagen agreement, Russia maintained an open attitude to the establishment of emission targets but also pushed for having them set for all major polluters.260 In addition, Russia pushed to obtain recognition of the contribution of Russia’s forests to decarbonization.261 In the Copenhagen Accord (2009), Russia pledged to limit emissions by 15–25% below 1990 levels by 2020.262 Although Russia did not undertake a new target for the second commitment period of the Kyoto Protocol (negotiated in 2012), in 2013 it adopted a domestic limitation target (Decree No. 752 On Reducing Greenhouse Gas Emissions) of reducing emissions by 25% below 1990 levels by 2020. This target was reaffirmed in 2014 in Decree No. 504-p.263 Research suggests that meeting this target does not require strong additional policy efforts.264 At COP 21 (2015, Paris), Russia took the position of not blocking a deal that had the approval of other major economies.265 Russia signed the agreement in 2016 but waited until 2019 to ratify it. In negotiations that followed COP 21, Russia singled itself out, together with Kuwait, Saudi Arabia, and the US, by refusing to “welcome” the 1.5 °C IPCC report,266 which stresses the urgency of climate action compatible with a 1.5 °C temperature increase target to avoid severe climate costs.267

Liliana B. Andonova and Assia Alexieva, “Continuity and Change in Russia’s Climate Negotiations Position and Strategy” (2012) 12(5) Climate Policy 614–629. 258 Andonova and Alexieva (n. 257). 259 Andonova and Alexieva (n. 257). 260 Andonova and Alexieva (n. 257). 261 Andonova and Alexieva (n. 257). 262 Russian Federation Government, Pledge of the Russian Federation to the Copenhagen Accord (2010). 263 Russian Federation, Decree No. 504-p (2014). 264 Anna Korppoo and Alexey Kokorin, “Russia’s 2020 GHG Emissions Target: Emission Trends and Implementation (2017) 17(2) Climate Policy 113–130. 265 https://​www​.theguardian​.com/​environment/​2015/​dec/​07/​russia​-pledges​-not​-to​-stand​-in​-the​-way​ -of​-paris​-climate​-deal. 266 https://​www​.ipcc​.ch/​sr15/​. 267 Russian Federation. Decree No. 504-p (2014). 257

Climate change mitigation law and policy in the BRICS  229 4.3

Key Domestic Policies in Favor and Against Climate Change Mitigation

A Key measures that reduce carbon emissions Historically, Russia’s domestic climate change policies have been weak and primarily motivated by non-climate goals, such as energy security and the efficient use of resources. An exception to this trend was the draft climate legislation that the Russian government proposed in 2018, which aimed at reducing GHG emissions through a number of instruments, including an ETS and tax breaks for companies that reduced or captured their emissions.268 After its proposal, the bill has encountered strong opposition from domestic stakeholders in the energy sector, leading to a reduction of ambition (now a five-year GHG emissions audit).269 Despite the Russian government not having passed laws specifically aimed at mitigating climate change, there are policies in Russia that, while aiming at non-climate targets, indirectly lead to a reduction of carbon emissions. Russia has a high energy intensity per GDP ratio that is significantly higher than the world average because of its geographical size, cold weather, lack of organization, and old technologies.270 Energy efficiency gaps are abundant in many sectors of the Russian economy. According to the IFC and the World Bank, energy efficiency improvements could reduce primary energy consumption by 45% in Russia and provide significant benefits in terms of reduced budget expenditures, increased revenues from fuel exports, and reduced environmental costs.271 The Russian government has implemented various measures to improve energy efficiency.272 An example of this type of policy is the regulation of associated petroleum gas (APG). APG is gas (e.g. methane) that is released in the extraction of oil. Russia is the country with the highest gas flaring volumes in the world,273 and APG accounted for about 1.8–2.7% of the country’s emissions in 2012.274 While these gases have traditionally been treated as waste, they can be used as fuel, re-injected into the ground to increase pressure in oilfields, or used in the chemical industry.275 In 2009, the Russian government introduced a 5% threshold on APG flaring starting from 2012; if the threshold is passed or flaring is not metered, penalties are applied.276 In subsequent years this policy has been revised various times to change the amount of the penalties that apply and introduce some exemptions, including oilfields with small emissions or new oilfields (i.e. less than three years old), and flaring that occurs during maintenance.277 Research suggests that, while this policy was able to reduce APG flaring

https:// ​ w ww ​ . climatechangenews ​ . com/ ​ 2 019/ ​ 0 3/ ​ 2 2/ ​ r ussia ​ - floats ​ - first ​ - law ​ - regulate ​ - carbon​ -emissions/​. 269 https://​climateactiontracker​.org/​countries/​russian​-federation/​. 270 Mitrova and Melnikov (n. 250). 271 International Finance Corporation, “Energy Efficiency in Russia: Untapped Reserves” (World Bank 2014). 272 For a review of these policies, see Svetlana Vladislavlevna Lobova et al., “The Fuel and Energy Complex of Russia: Analyzing Energy Efficiency Policies at the Federal Level” (2019) 9(1) International Journal of Energy Economics and Policy 205. 273 World Bank, “Global Gas Flaring Tracker Report,” 2020. 274 Anna Korppoo, “Russian Associated Petroleum Gas Flaring Limits: Interplay of Formal and Informal Institutions” (2018) 116 Energy Policy 232–241. 275 Korppoo (n. 274). 276 Korppoo (n. 274). 277 Korppoo (n. 274). 268

230  Research handbook on climate change mitigation law somewhat, it is de facto only partially implemented.278 In addition, weak metering systems leave uncertainty regarding the actual amount of APG flaring.279 Other measures that help to reduce GHG emissions are the development and deployment of renewable energy sources. In 2019, renewable energy sources (including hydropower) accounted for about 6% of primary energy consumption in Russia, with hydropower alone accounting for about 5.8%.280 Despite the development of renewable energy sources being among the five key aims of Russia’s draft energy strategy up to 2035,281 analysts suggest that the development of the renewable energy sector is likely to remain of marginal priority for the Russian government,282 as it is primarily driven by technology policy, not energy security or climate concerns.283 Currently, the backbone of Russia’s renewable energy policy is Decree 449 (2013), which sets incentives for renewable energy development, especially wind and solar. In particular, it enables energy developers with an output equal to or higher than 5 MW to bid for capacity supply contracts, with the aim of obtaining 15-year contracts with fixed tariffs that pay for the additional capacity they add and for the energy they supply.284 This system is expected to be in place until 2024, and it is unclear how Russia’s renewable energy policy will look afterwards.285 In 2015, the Russian government also set an obligation on network companies to buy electricity generated from renewable energy sources.286 B Support for fossil fuels Alongside a weak legal and policy framework to drive climate change mitigation, Russia also has substantial policies in place that favor the release of carbon emissions. According to IEA estimates produced with the price-gap analysis, Russia ranks fourth among countries that subsidize more fossil fuel consumption. These subsidies focus primarily on natural gas and oil and represent about 1.5% of Russia’s GDP.287 Russia is also one of the main subsidizers of fossil fuels if the IMF’s post-tax subsidies are taken into account, and these amount to US$551 billion, second only to China and the US.288 The OECD identifies several measures through which the Russian government supports fossil fuel industries. Producers of oil and natural gas are totally or partially exempted from the federal extraction tax in specific

Korppoo (n. 274). Korppoo (n. 274). 280 Statista, “Primary Energy Consumption in Russia between 2017 and 2019, by Fuel, 2020”, available at https://​www​.statista​.com/​statistics/​294308/​primary​-energy​-consumption​-in​-russia​-by​-source/​ #:​ ~:​ t ext​=​ In ​%202019​ % 2C​ % 20natural​ % 20gas​ % 20accounted ​,by ​ %20oil ​%2C ​%20exceeding ​%2022​ %20percent. 281 Draft Energy Strategy of the Russian Federation for the Period up to 2035. 282 Tatiana Mitrova and Vitaly Yermakov, “Russia’s Energy Strategy-2035: Struggling to Remain Relevant” (2019) IFRI, Russie.Nei.Reports, Report 28, 2019. 283 Mitrova and Melnikov (n. 250). 284 Mitrova and Melnikov (n. 250). 285 Mitrova and Melnikov (n. 250). 286 Korppoo, Gutbrod, and Sitnikov (n. 249). 287 https://​www​.iea​.org/​topics/​energy​-subsidies. 288 Coady (n. 195). 278 279

Climate change mitigation law and policy in the BRICS  231 fields.289 Mineral extraction activities in certain regions are supported through tax breaks.290 Consumption is supported through artificially low prices for electricity and gas.291 Recent research finds that eliminating fossil fuel subsidies in Russia (estimated as a sum more in line with IEA, OECD, and IMF pre-tax subsidies than to IMF post-tax subsidies) would reduce emissions much more than in many other countries.292 4.4

Is Russia on a Sustainable Climate Change Trajectory?

Russia’s intended nationally determined contributions (INDCs) include the following key economy-wide commitment: an unconditional target to limit “anthropogenic greenhouse gases in Russia to 70–75% of 1990 levels by the year 2030 … subject to the maximum possible account of absorbing capacity of forests.”293 According to the Climate Action Tracker, Russia is very likely to meet its INDC target due to the low ambition of the target.294 This organization finds Russia’s INDC critically insufficient to meet the Paris Agreement’s temperature targets, and it is in line with a more than 4 °C temperature increase over pre-industrial levels.295 Observers were also disappointed that Russia failed to increase the ambition of its INDC when it ratified the agreement in 2019, more than three years after having signed it.

5

SOUTH AFRICA

5.1

Introduction: South Africa’s Climate Profile and Challenges

Climate change is a global issue. Like the other BRICS countries, South Africa is especially vulnerable to its impacts. In 2017, the country ranked 24th in the Global Climate Risk Index.296 The rankings indicate that South Africa is at a high risk for economic, social and human loss (fatalities) due to extreme weather events, particularly floods and drought.297 South Africa is also the world’s 14th largest GHG emitter.298 Its emissions are principally due to the energy sector’s heavy reliance on fossil fuels.299 The energy sector (which includes electricity genera OECD (n. 245). OECD (n. 245). 291 OECD (n. 245). 292 https://​www​.nature​.com/​articles/​nature25467​#MOESM1. 293 The unofficial translation of the Russian INDC is available at https://​www4​.unfccc​.int/​sites/​ submissions/​indc/​Submission​%20Pages/​submissions​.aspx. 294 https://​climateactiontracker​.org/​countries/​russian​-federation/​. 295 https://​climateactiontracker​.org/​countries/​russian​-federation/​. 296 Sönke Kreft, Eckstein David and Melchio Inga, “Global Climate Risk Index” (2017) https://​ germanwatch​.org/​sites/​default/​files/​publication/​16411​.pdf accessed 14 April 2021. 297 David Eckstein, Vera Künzel, and Laura Schäfer, “Global Climate Risk Index 2020: Who Suffers Most from Extreme Weather Events?” (2020) https://​germanwatch​.org/​sites/​default/​files/​20​-2​ -01e​%20Global​%20Climate​%20Risk​%20Index​%202020​_14​.pdf accessed 12 April 2021. 298 Robert McSweeney and Jocelyn Timperley, “South Africa’s Carbon Brief Profile” (2018) https://​ www​.carbonbrief​.org/​the​-carbon​-brief​-profile​-south​-africa accessed 16 April 2021. 299 Beyond Petroleum, “Statistical Review of World Energy” (2020) https://​www​.bp​.com/​content/​ dam/​bp/​business​-sites/​en/​global/​corporate/​pdfs/​energy​-economics/​statistical​-review/​bp​-stats​-review​ -2020​-full​-report​.pdf accessed 16 April 2021. 289 290

232  Research handbook on climate change mitigation law tion and liquid fuels production from both crude oil and coal) contributes 84% of the country’s total GHG emissions.300 South Africa faces significant challenges and conflicting interests in reducing emissions in the energy sector as it continues to be at the center of economic and social development, and is one of the largest contributors to the labor market and economy.301 It is generally agreed that South Africa cannot successfully mitigate or respond to the impacts of climate change without reducing its overall GHG emissions and moving towards a low carbon economy.302 Notably, the South African government has made two major commitments in this regard. Domestically, the first commitment translates into a peak, plateau and decline target whereby South Africa’s emissions are expected to peak between 2020 and 2025, plateau for approximately a decade, and decline in absolute terms between 2025 and 2030.303 This commitment to work towards stabilizing and reducing emissions is underpinned by the national government’s goals to reduce overall dependency on carbon, natural resources and energy; decouple economic activity from environmental degradation; and decrease consumption of renewable natural resources.304 The second commitment is informed by South Africa’s ratification of the UNFCCC, Kyoto Protocol and the Paris Agreement. In terms of the Paris Agreement, specifically, South Africa committed, through its NDC, to a medium-term goal of 398–614 Mt CO2e between 2025 and 2030 (representing a peak GHG emission phase), and lowering to reach net zero emissions by 2050.305 These aspirations are, however, subject to conditions of technical and financial support from other developed countries.306 5.2

South Africa’s Institutional and Governance Framework for Climate Change

South Africa follows a quasi-federal approach to governance. The government consists of three distinct yet interdependent and interrelated spheres, namely, national, provincial and local government.307 Each sphere of government is responsible for governing specific functional areas as listed in the Constitution. While the “environment” is listed as a concurrent functional competency of national and provincial government, all three spheres of government have legislative and executive responsibilities for protecting the environment.308 As far as it pertains to climate change, national government plays a leading role in law and policy development and in establishing certain institutional and policy mechanisms for the purpose of climate governance. Several national ministries/departments are involved in climate governance, most notably, at the national level, the Climate Change, Air Quality and Department of Energy “Integrated Resource Plan” (2018) http://​ www​ .energy​ .gov​ .za/​ IRP/​ irp​ -update​-draft​-report​-2018​.html accessed 17 April 2021. 301 Department of Energy (n. 300). 302 Department of Energy (n. 300). 303 Department of Environmental Affairs “South Africa’s Intended Nationally Determined Contribution” (2015) https://​www​.environment​.gov​.za/​sites/​default/​files/​reports/​draftna​tionalydet​ erminedcon​tributions​_2021updated​.pdf accessed 17 April 2021. 304 National Planning Commission “National Development Plan Vision 2030” (2011) https://​www​ .gov​.za/​issues/​national​-development​-plan​-2030​?gclid​=​Cj0​KCQjwsqmEB​hDiARIsANV​8H3bVaYAdD​ -o1RVP​lZuwEGVKGP​up8yZefess​-n0RBIpVvO​F5eorjPqDJ​IaArf1EALw​_wcB accessed 21 April 2021. 305 Department of Environmental Affairs (n. 303). 306 Department of Environmental Affairs (n. 303). 307 Constitution of the Republic of South Africa, 1996. 308 Le Sueur and Another v Ethekwini Municipality and Others (9714/11) (2013) ZAKZPHC 6 (30 January 2013). 300

Climate change mitigation law and policy in the BRICS  233 Sustainable Development (CCAQSD) Agency, situated in the Department of Environmental Affairs, and the Inter-Ministerial Committee on Climate Change (IMCCC).309 The CCAQSD identifies, gathers, analyzes and distributes climate change data and information to ensure informed climate response decision-making. It is also tasked with leading, monitoring and supporting national, provincial and local climate mitigation responses. The IMCCC, in turn, serves to align and integrate the climate change responses of the key ministries with national policies and legislation, and coordinates and oversees the implementation of the law and policy. More recently, the South African President, Cyril Ramaphosa, established the Presidential Climate Commission (PCC). The PCC was established to coordinate the country’s transition to a low carbon and climate resilient society by 2050. Amongst other duties, the PCC is tasked with monitoring progress towards mitigation and adaptation goals as well as linking these goals to the just transition.310 Other key role-players include the Department of Mineral Resources and Energy and the Department of Trade and Industry, which are responsible for promoting the transition to a low carbon economy in their respective sectors. Most notably, however, Eskom, a state-owned company, is the country’s main power utility. Eskom accounts for over 90% of the country’s electricity generating capacity. Only a few independent power producers have emerged in recent years. Such producers require Eskom’s permission to access the national transmission grid, and as a result Eskom remains the monopoly supplier and provider of electricity.311 5.3

South Africa’s Climate Change Mitigation Law and Policy Framework

The focus of this chapter falls on national mitigation law and policy. It is, however, important to note that provinces and local government (municipalities) also have the authority to develop law and policy for climate change, subject to it being aligned with the priorities and goals underpinned in national and provincial law and policy.312 Currently, there are no specific provincial laws for climate change. In the context of local government, municipalities typically integrate climate change into their strategic and spatial planning instruments including, to some extent, into their environmental governance instrumentation. Domestic law framework A The Constitution is the supreme law of the Republic.313 It forms the foundation and starting point for the articulation of any government responsibilities in terms of the environment and associated responsibilities for climate change. The Constitution includes an explicit environmental provision which elevates the duty of the state to safeguard and protect the

Switchin Lui et al., “Climate Governance: Assessment of the Government's Ability and Readiness to Transform South Africa into a Zero Emissions Society” (2019) https://​climateactiontracker​.org/​ documents/​545/​2019​-09​-30​_CAT​_ClimateGovernance​_SouthAfrica​.pdf accessed 27 April 2021. 310 Presidential Climate Commission 2022, “Presidential Climate Commission: Towards a Just Transition” available at https://​www​.climatecommission​.org​.za/​accessed 22 June 2022. 311 Panos Constantinides and Mira Slavova, “From a Monopoly to an Entrepreneurial Field: The Constitution of Possibilities in South African Energy” (2020) 35 Journal of Business Venturing 1–22. 312 Section 156(1) of the Constitution of the Republic of South Africa, 1996. 313 Section 2 of the Constitution of the Republic of South Africa, 1996. 309

234  Research handbook on climate change mitigation law environment to a higher, more enduring level.314 This “environmental right” is included in the Bill of Rights and places a positive duty on the state to take the necessary and reasonable measures to secure a certain environmental quality that is not harmful to people’s health or well-being, and to protect the environment for present and future generations.315 The measures may be legal, extra-legal, or both, and must “prevent ecological pollution and degradation, promote conservation, and secure ecologically sustainable development and use of natural resources whilst promoting justifiable economic and social development.”316 The measures may include virtually anything that is not unconstitutional and which achieves the objective of the environmental right – including as it relates to mitigating the impacts of climate change and addressing its root causes. Given the scope of the responsibilities pertaining to the environmental right, it may be argued that the South African government holds a broad authority to develop laws and regulations aimed at enhancing the protection of the environment and, by implication, responding to climate change. This authority is evident in the existence of comprehensive national environmental framework legislation, sectoral legislation and their relevant regulating policies. The National Environmental Management Act 107 of 1998 (NEMA) is South Africa’s framework legislation for the environment. While NEMA contains no explicit mention of climate change mitigation, it is underpinned by several internationally recognized environmental law principles, including sustainable development, the polluter pays principle, the duty of care, and the precautionary principle.317 These principles are expected to guide all law and policy relevant to the environmental sector, including law and policy related to climate change mitigation. Other legislation relevant to climate change includes sectoral legislation for: air quality – National Environmental Management: Air Quality Act 39 of 2004 (NEM:​AQA); agriculture – a draft Bill for the Preservation and Development of Agricultural Land 2016 (PDAL); waste – the National Environmental Management: Waste Act 59 of 2008 (NEM:WA); transport – National Land Transport Act 5 of 2009 (NLTA); and energy – notably, the National Energy Act 34 of 2008 (NEA) and the Electricity Regulation Act 4 of 2006 (ERA). None of these laws mentions climate change or establishes explicit mitigation responsibilities. However, some of the provisions in the laws, or the national regulations promulgated in terms of these laws, do apply to climate mitigation. For instance, the NEM:​AQA refers to the Constitutional Environmental Right and requires the protection and enhancement of air quality in the Republic, including the prevention of air pollution and ecological degradation.318 In 2017, the national government published National Greenhouse Gas Emission Reporting Regulations under the NEM:​AQA. These regulations are informed by the IPCC Guidelines for National Greenhouse Gas Inventories (2006)319 and establish a single national reporting system for the transparent reporting of GHG emissions, which are intended to maintain a National Greenhouse Gas Inventory to enable South Africa to meet its international obliga-

314 Anél Du Plessis and Louis Kotzé, “The Heat Is On: Local Government and Climate Governance in South Africa” (2014) Journal of African Law 145. 315 Section 24 Constitution of the Republic of South Africa, 1996. 316 Section 24(b) Constitution of the Republic of South Africa, 1996. 317 Section 2 of the National Environmental Management Act 107 of 1998. 318 Section 2 of the National Environmental Management: Air Quality Act 39 of 2004. 319 IPCC, “Guidelines for National Greenhouse Gas Inventories” (2006) https://​www​.ipcc​-nggip​.iges​ .or​.jp/​public/​2006gl/​ accessed 21 April 2021.

Climate change mitigation law and policy in the BRICS  235 tions and to inform the formulation and implementation of national legislation and policy.320 Emission sources and data providers covered by the Regulations are set out in Annexure 1 and Regulation 4. The sectors include energy, transport, industry and forestry. The Regulations also set out the reporting requirements, calculation methodology, verification procedure (to be carried out by the National Inventory Unit) and penalties (which include fines and imprisonment). As far as it pertains to agriculture, the PDAL Bill mentioned earlier, once it is adopted into law, will emphasize the use of sustainable farming practices that are environmentally non-degrading, technically appropriate and make the most efficient use of non-renewable resources and, where appropriate, natural biological cycles and controls.321 It is important to note that currently the agricultural sector is not required to report emissions to the National GHG Inventory.322 In addition to the above, the NEM:WA aims to secure the Constitutional environmental right by advocating for an overall reduction, re-use, recycling and recovery of waste.323 The Act also establishes a duty for the state to, through its national waste management policies, prevent pollution and ecological degradation. In line with this responsibility, the national government frequently publishes an updated version of the National Waste Management Strategy.324 Regulations published in terms of this strategy include norms and standards for classification of waste and for the assessment and disposal of waste for landfill. The government is increasingly encouraging the upgrading of landfill sites with organic waste treatment technologies in order to reduce methane emission and air pollution. In line with the goals of the NLTA to restructure and transform South Africa’s transport system,325 the national government recently published the Green Transport Strategy 2050 (GTS).326 The GTS provides the strategic direction for the contribution of transport to the green economy and the promotion of sustainable mobility. The Strategy aims to support reductions in the contribution of the transport sector to national GHG emissions through interventions that include local electric vehicle and battery production and the roll-out of solar-powered charging stations; continued use of fuel economy norms and standards for fuel efficiency and vehicle emissions; and facilitating a shift of freight from road to rail.327

320 Department of Environmental Affairs, “National Greenhouse Gas Emission Reporting Regulations” (2017) https://​www​.gov​.za/​documents/​national​-environmental​-management​-air​-quality​ -act​-regulations​-national​-greenhouse​-gas​-3​?gclid​=​Cj0KCQjw​1a6EBhC0AR​IsAOiTkrFd​oPDfvC2cST​ 9h7uW8dtSr​7nij6HOvlp​FnSTHfnIYf​p9HHDPMCG8saAmq1EALw​_wcB accessed 17 April 2021. 321 Section 1 of the Bill for the Preservation and Development of Agricultural Land 2016. 322 Department of Environmental Affairs, “South Africa’s 2nd Annual Climate Change Report” (2016) https://​www​.environment​.gov​.za/​otherdocuments/​reports/​southafricas​_secondnational​_clima techange accessed 18 April 2021. 323 Section 2 of the National Environmental Management: Waste Act 59 of 2008. 324 Department of Environmental Affairs, “National Waste Management Strategy” (2012) https://​ www​.gov​.za/​documents/​national​-waste​-management​-strategy​?gclid​=​Cj​0KCQjw1a6E​BhC0ARIsAO​ -iTkrG7bTcojow ​ - 76​ H BbUo4xAKa​ Y iP6teBNJe​ z 5bhdx3lWT ​ g bLbwGp4eM ​ 0 aAvGAEALw ​ _ wcB accessed 17 April 2021. 325 Section 2 of National Land Transport Act 5 of 2009. 326 Department of Transport, “Green Transport Strategy 2050” (2018) https://​www​.transport​.gov​ .za/​documents/​11623/​89294/​Green​_Transport​_Strategy​_2018​_2050​_onlineversion​.pdf/​71e19f1d​-259e​ -4c55​-9b27​-30db418f105a accessed 19 April 2021. 327 Department of Transport (n. 326).

236  Research handbook on climate change mitigation law With regard to energy, the both the NEA and ERA aim to promote diversity of supply of energy resources in sustainable quantities and at affordable prices.328 The government publishes and updates several plans related to energy. Most notable is the Integrated Energy Plan (IEP), published under the NEA, and the Integrated Resource Plan (IRP), published under the ERA. The IEP aims to provide a 20-year roadmap for energy planning. It analyzes current energy consumption trends within different sectors of the economy (i.e. agriculture, commerce, industry, residential and transport) and uses this to project future energy requirements, based on different scenarios.329 The plan predicts that the electricity, transport and manufacturing/industrial sectors will continue to place a higher demand on energy until 2030.330 As such it underscores the need to invest in a diversified energy mix that reduces reliance on primary energy sources such as coal and crude oil. The IEP must be read with the IRP, as the IRP provides financial investment guidance for the energy sector. In this regard IRP indicates the need to decommission outdated coal power plants and places a preference on investment for renewable energy, particularly wind, solar and gas.331 These investments are expected to steadily increase by 2030 and to form the bulk of energy infrastructure investments in the future.332 Finally, in addition to the above sectors, South Africa adopted the Carbon Tax Act in 2019 (Carbon Tax Act 15 of 2019 – CTA) and aims to adopt its first national climate change law in the near future. This law is currently in the form of the Climate Change Bill (CCB) 2022. The Bill was formally introduced in Parliament on 18 February 2022, more than three years after an earlier version of the Bill was first published for public comment on 8 June 2018. It is guided by the environmental principles set out in NEMA (discussed above). Once adopted into legislation, the Climate Change Bill will make provision for regular monitoring and updating to South Africa’s Peak, Plateau, Decline Emissions Trajectory Range to ensure the fulfillment of the country’s international commitments.333 With respect to mitigation, the Bill provides for future review and determination of the national greenhouse gas emissions trajectory; determination of sectoral emissions targets for emitting sectors and subsectors; and allocation of carbon budgets.334 It also makes provision for the development of plans to phase down or phase out the use of synthetic greenhouse gases line with the Kigali Amendments to the Montreal Protocol.335 The Carbon Tax Act, in turn, symbolizes South Africa’s post-Paris Agreement mitigation commitments to offset the negative costs of emissions. The Act introduces the country’s first carbon tax system. The tax rate is set at ZAR144 per ton of CO2e (carbon dioxide equivalent), rising 10% a year for the first five years of implementation of the Act.336 The following sectors

Section 2 of the National Energy Act 34 of 2008 and Section 2 of the Electricity Regulation Act 4 of 2006. 329 Department of Energy, “Integrated Energy Plan” (2016) https://​www​.gov​.za/​documents/​integrated​ -energy​-plan​-south​-africa​?gclid​=​Cj0KCQ​jwsqmEBhDi​ARIsANV8H3​a2emtkkzSi​-o​w9r1TQaWF3​ 2CxMGATKnh​WWLpsNDA1d​V0BNIA6s6H​4aAimiEALw​_wcB accessed 17 April 2021. 330 Department of Energy (n. 329). 331 Department of Energy, “Integrated Resource Plan” (2019) https://​www​.gov​.za/​sites/​default/​files/​ gcis​_document/​201910/​42778gon1359​.pdf accessed 21 April 2021. 332 Department of Energy (n. 331). 333 Section 12 of the Climate Change Bill 2018. 334 Section 12 of the Climate Change Bill 2018. 335 Section 12 of the Climate Change Bill 2018. 336 Section 5 of the Carbon Tax Act 15 of 2019. 328

Climate change mitigation law and policy in the BRICS  237 are the most affected by the implementation of a carbon tax: the energy sector, the manufacturing and construction industry, the mining sector, various mineral industries (cement, glass and lime production), the chemical industry, and the metal industry (iron and steel, aluminum, zinc and lead production).337 These emitters are required to license their activities that are liable for carbon tax, and payment of this environmental levy is due annually in July of each year.338 During the first phase of implementation (1 June 2019–31 December 2022), the waste sector, as well as the agricultural, forest and other land use sectors, are excluded. Paradoxically, the Act also excludes South Africa’s largest emitter – Eskom. The rationale behind this exclusion lies in the argument that the utility already pays an electricity levy on its generation of non-renewable electricity.339 B Policy framework In addition to the above laws, the National Climate Change Response White Paper (NCCRWP),340 together with the National Development Plan Vision 2030 (NDP)341 and the Low-Emission Development Strategy 2050 (LEDS)342 remain the main guiding policies establishing climate-related responsibilities for government. The NDP serves as South Africa’s main strategic development policy. It includes the overarching objective of eliminating poverty and reducing inequality by 2030.343 The NDP outlines a set of goals and actions to meet the country’s environmental sustainability needs and challenges, and dedicates a full chapter to “Environmental Sustainability: An Equitable Transition to a Low-Carbon Economy.”344 This chapter includes an overview of South Africa’s economic and development priorities and places these in context with the need to secure an environmentally sustainable future that is less carbon intensive.345 It forms the foundation for the country’s initial and future discussions and policy development for emission reductions, energy efficiency and financial and infrastructural investments surrounding greener technologies, specifically for the electricity and manufacturing industries. The NCCRPW, in turn, represents South Africa’s very first climate change policy. It dates back to 2011 and echoes the objective of the NDP to provide a climate-specific overarching policy framework for facilitating a “just transition to a low carbon economy.”346 In this regard the policy encourages the use of incentives and disincentives, including regulatory, economic,

Schedule 2 of the Carbon Tax Act 15 of 2019. Section 16 of the Carbon Tax Act 15 of 2019. 339 National Treasury, “Explanatory Memorandum of the Carbon Tax Bill 2018” (2018) http://​ www​.treasury​.gov​.za/​public​%20comments/​CarbonTaxBill2019/​Explanatory​%20Memorandum​%20to​ %20the​%202018​%20Carbon​%20Tax​%20Bill​%20​-​%2020​%20Nov​%202018​.pdf accessed 17 April 2021. 340 Department of Environmental Affairs, “National Climate Change Response White Paper” (2011) https://​www​.gov​.za/​sites/​default/​files/​gcis​_document/​201409/​nationalcl​imatechang​eresponsew​ hitepaper0​.pdf accessed 23 April 2021. 341 National Planning Commission (n. 304). 342 Department of Environmental Affairs, “Low-Emission Development Strategy 2050” (2018) https://​www​.environment​.gov​.za/​sites/​default/​files/​docs/​2020lowemission​_developmentstrategy​.pdf accessed 20 April 2021. 343 National Planning Commission (n. 304). 344 National Planning Commission (n. 304). 345 National Planning Commission (n. 304). 346 Department of Environmental Affairs (n. 340). 337 338

238  Research handbook on climate change mitigation law and fiscal measures to provide appropriate price signals to nudge the economy towards a more sustainable growth path.347 It requires the appropriate measures to be developed in line with the “polluter pays principle.” The NCCRWP further introduced the National Climate Change Response Monitoring and Evaluation System (M&E System).348 The M&E System was established in 2016 and is set to become the primary tool through which South Africa’s NDC under the Paris Agreement is implemented.349 The M&E System aims to provide an online information system to support South Africa’s transition to a low carbon economy. The system follows a tiered approach: Tier 1 – country level indicators; Tier 2 – sectoral indicators; and Tier 3 – indicators for the impact of individual response measures, through which data must be reported and monitored.350 This system is intended to be used alongside the National GHG Inventory, and should guide decisions of all relevant national departments.351 The M&E System is operational, but is currently in a learning phase through which the institutional arrangements for the system are being refined.352 The LEDS, in turn, represents the final policy-related discussion relevant to climate mitigation in South Africa. The LEDS provides an overview of the existing policies (also discussed in this chapter) related to climate mitigation.353 It confirms that from 2030 onwards, a number of existing coal-fired power stations will be retired and that investments in green energy will be prioritized.354 It also speaks to the institutional and financial constraints South Africa faces in the implementation of its policies for climate mitigation. In this regard, the LED highlights that low carbon development is dealt with in a fragmented manner and that integration and cooperation between various sectoral departments should be improved.355 For this purpose, the LEDS suggests the establishment of a Presidential Climate Change Coordinating Commission to oversee the maximization of resources and policy implementation across sectors.356 It further calls for the development of a comprehensive climate finance strategy aimed at quantifying the sum of climate finance required for infrastructure and technology investment, fostering climate finance networks (by means of identifying stakeholders and activities along the climate finance value chain), and establishing the necessary institutions and procedures to monitor the climate finance system.357 5.4 Conclusion From the above discussion, it may be argued that South Africa boasts a comprehensive environmental law and policy framework that provides a strong mandate for the state to protect

Department of Environmental Affairs (n. 340). Department of Environmental Affairs, “The National Climate Change Response Monitoring and Evaluation System Framework” (2015) https://​www​.environment​.gov​.za/​sites/​default/​files/​reports/​ themeB​_monitoring​_evaluation​.pdf accessed 21 April 2021. 349 Department of Environmental Affairs (n. 348). 350 Department of Environmental Affairs (n. 322). 351 Department of Environmental Affairs (n. 322). 352 Department of Environmental Affairs (n. 348). 353 Department of Environmental Affairs (n. 342). 354 Department of Environmental Affairs (n. 342). 355 Department of Environmental Affairs (n. 342). 356 Department of Environmental Affairs (n. 342). 357 Department of Environmental Affairs (n. 342). 347 348

Climate change mitigation law and policy in the BRICS  239 the environment for present and future generations. This mandate is extended to mitigating the impacts of climate change and addressing its root causes. The legal framework is, however, still developing. In the absence of a dedicated single nationally adopted climate change Act which provides for detailed climate mitigation responsibilities, the legal approach remains fragmented and silo based. While there are institutions that have been established to oversee policy development and implementation, it is unclear how all of the institutions mentioned in this chapter should work together. For example, there seems to be a disconnect between established institutions, such as the CCAQSD and IMCCC, and actors in the National GHG Inventory or other national departments, in relation to the extent to which these do and should coordinate climate mitigation activities. Nevertheless, the adoption of a national climate Act is imminent. It therefore remains to be seen whether this new Act addresses the institutional and policy gaps and establishes a coordinated, detailed and dedicated climate mitigation framework.

6

CONCLUDING REMARKS

While South Africa claims to have a comprehensive environmental law and policy framework that provides a strong mandate for the state to protect the environment for present and future generations, it is still developing. Russia is very likely to meet its INDC target due to the low ambition of the target. However, Russia’s INDC is insufficient to meet the Paris Agreement’s temperature targets and Russia failed to increase the ambition of its INDC when it ratified the Paris Agreement in 2019. In the case of China, the lack of rules/guidelines/enforcement capacity to bind BRI-related activities to green development is worrying, as these activities have the potential to severely set back climate change action in a large number of countries. These concerns exist mainly because a large part of the BRI’s related investments concern transportation infrastructure and energy-related infrastructure. Regarding India, there is still low optimism that it will reach its renewable energy target, much less start to replace its current conventional energy sources, especially in the absence of an active energy transition and substitution law and policy. Lastly, to achieve the ambitious objectives of the Paris Agreement, Brazil is committed to the implementation of its INDCs under existing policies and intends to set mitigation measures to reduce GHG emissions from LULUCF through restoring forests for different land use purposes. All five BRICS countries are aiming high to decarbonize their economies at their own pace based on their national economic circumstances. Two countries to pay attention to in the coming years, if the world is serious about mitigating climate change, are China and India. In the latter case, especially because it is about to become the most populous country in the world and has ambitions to continue to grow macro-economically. As for the former, it is ironic that, in the 2000s, the US criticized China for not embracing multilateralism. In the late 2010s, it was the US who abandoned multilateralism (for example, by withdrawing from UNESCO and the Paris Agreement on Climate Change, and by blocking the nomination of new members of the Appellate Body of the World Trade Organization) and China has become the champion of multilateralism, taking a position of leadership in multilateralism that the Trump administration of the US had rejected.

10. Climate change mitigation law and policy in Africa Olivia Rumble and Andrew Gilder

INTRODUCTION Sub-Saharan Africa is highly vulnerable to the impacts of climate change and has the least capacity to adapt to its impacts.1 It hosts a record of seven out of ten countries worldwide that are considered to be the most threatened.2 For that reason, the focus of policy and planning instruments has leaned towards increasing resilience and reducing vulnerability.3 This focus is also unsurprising since the continent is responsible for only a fraction of global greenhouse gas (GHG) emissions, representing less than 4% of total GHG emissions worldwide.4 That notwithstanding, African countries are committed to making a fair contribution to global mitigation efforts and to pursuing low carbon development. At the Eight Conference on Climate Change and Development in Africa in 2019, the African Union Commission recognised that urgent action is necessary to avert irreversible climate impacts and noted that, “for Africa, the contribution to the global effort is avoiding emission intensive production, distribution and consumption in pursuit of sustainable development pathways”.5 For that reason there is considerable support among African countries for renewable energy and the sustainable use of natural resources, and a progressive reduction in fossil fuel reliance.6 This support is propelled by existing high levels of energy poverty and a lack of access to electricity, a rapid growth in energy demand in cities, and a relatively high reliance on biomass and fossil fuels.7 The continent also has the richest solar resources in the world, as well as considerable geothermal and hydropower potential.8 In this chapter we refer to sub-Saharan Africa as “Africa”. IPCC, “Global warming of 1.5 °C. An IPCC Special Report on the impacts of global warming of 1.5 °C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty” (World Meteorological Organization 2018). 2 African Development Bank Gap Analysis Report, “African Nationally Determined Contributions (NDCs)” (2018). The cited countries include the Central African Republic, Chad, Eritrea, Ethiopia, Nigeria, Sierra Leone and South Sudan. 3 World Meteorological Organization, “State of the Climate in Africa” (2019) WMO 1253, which discusses NDC focuses of African countries. 4 International Energy Agency Country statistics 2019; and African Development Bank (above note 2). 5 Eighth Conference on Climate Change and Development in Africa Conference (CCDA-VIII), African Union Commission, Addis Ababa, Ethiopia, 28–30 August 2019 ECA/CCDA/2019/INF/2. 6 Ibid. 7 International Energy Association, “Africa Energy Outlook 2019” (IEA 2019) https://​www​.iea​.org/​ reports/​africa​-energy​-outlook​-2019, last accessed June 2021. 8 African Development Bank (above note 2). For example, the estimated potential of hydropower on the continent is 1,750 TWh and that of geothermal energy is estimated at 9,000 MW. 1

240

Climate change mitigation law and policy in Africa  241 In this chapter we explore how African countries have sought to mitigate their emissions and pursue low carbon development. We do so by first considering national policy responses, focusing on Africa’s implementation of the Paris Agreement and how NDCs have addressed mitigation ambition. We then provide a brief overview of continental, regional and national climate change mitigation policies, strategies and plans, primarily engaging with how they address mitigation and low carbon development. As part of this review, we focus on market mechanisms such as carbon pricing and how this has been a particular regional priority on some parts of the continent. Our analysis then traces climate change legislative developments in Africa, first discussing how it has fused with various sectoral laws and then engaging with the development of framework legislation in a handful of countries. We then conclude by unpacking the climate change framework laws of Kenya and Uganda, discussing how they provide for climate mitigation responses within institutional, administrative and financial mechanisms and structures.

1

SUB-SAHARAN AFRICAN IMPLEMENTATION OF THE PARIS AGREEMENT

1.1

Initial NDCs

Prior to the Paris Agreement, many African governments produced climate policy frameworks such as Nationally Appropriate Mitigation Actions (NAMAs), in line with UNFCCC requirements, but many did not implement them meaningfully, nor did they develop institutional capacities to respond climate change.9 Since 2015, nationally determined contributions (NDCs) have been the primary instrument guiding the policy response in most African countries that have ratified the Paris Agreement.10 Fifty-two African countries submitted their first NDCs under the Paris Agreement.11 Initial African NDCs primarily address adaptation considerations, although the majority also include mitigation actions.12 That notwithstanding, support for renewable energy and low carbon development is clear. Most African nations have committed to transitioning to low carbon sources of energy within a relatively short time frame, with clean energy and agriculture prioritised in over 70% of them.13 The majority of mitigation actions are framed within the energy, transport, industry, min­ing, waste and building sectors. Since a considerable portion of emissions arises from land use, the agriculture and forestry sectors feature prominently.14 Whilst African countries are supportive of a low carbon future, there are concerns regarding

African Climate Policy Centre “Climate Governance and Climate Policy in Africa” (undated) https://​www​.uneca​.org/​african​-climate​-policy​-centre/​climate​-governance​-and​-climate​-policy​-in​-africa, last accessed June 2021. 10 World Meteorological Organization (above note 3). 11 Ibid. 12 Ibid. 13 Ibid. 14 Food and Agricultural Organization, “Regional Analysis of the Nationally Determined Contributions of Eastern Africa” (2017) http://​www​.fao​.org/​3/​a​-i8165e​.pdf, last accessed June 2021; and Climate Legal, Kieti Advocates and Promethium Carbon, “Carbon Pricing in sub-Saharan Africa” (Konrad-Adenauer-Stiftung e. V. 2019). 9

242  Research handbook on climate change mitigation law what is considered to be a drastic energy transition on the continent on an unprecedented scale.15 For this reason, African countries have called on the global community to embed a just transition in low emission development strategies to address the socio-economic implications of such a transition, and to develop a global regime to further localise renewable energy value chains in Africa.16 1.2

NDC Review

The first generation of African NDCs were criticised for being hastily put together, with limited information, little or absent cross-sectoral and public participation; for failing to take the long-term effects on national development goals into consideration; and for largely assuming the availability of inter­national finance for their implementation.17 Consequently, it has been suggested that they did not truly reflect national needs.18 For this reason, considerable effort has been focused on ensuring that the next iteration of NDCs reflects national ambition and is subject to a more rigorous public process. Most African countries reviewed and updated their NDCs during the course of 2020 and 2021. This process has been compromised by the COVID-19 pandemic, which has amplified concerns by African nations about climate finance for implementation,19 in the context of a global push for net-zero targets. Climate finance has long been a concern of African nations, not only to achieve mitigation goals but also because the costs of adaptation are out of reach for most countries.20 Whilst the pandemic’s impact on the African NDC revision process is likely to be unavoidable, African countries have nevertheless expressed considerable support for increasing ambition and revising their NDCs, with interim data indicating an overwhelming support for enhanced ambition on the continent.21 A number of the African countries, which expressed their intention to increase ambition, made such statements under the banner of the Climate Ambition Alliance, a coalition of state and non-state actors committing nations to be more ambitious in their NDCs and to set net-zero targets by 2050. Thirty-five of the 103 countries in the Alliance are from Africa.22

Eighth Conference on Climate Change and Development in Africa (above note 5). Ibid. 17 African Development Bank (above note 2). 18 Ibid. 19 O. Rumble and A. Gilder, “Implications of the COVID-19 Pandemic for Global Climate Change Responses” (South African Institute for International Affairs 2021) https://​ saiia​ .org​ .za/​ download/​ implications​-of​-the​-covid​-19​-pandemic​-for​-global​-climate​-change​-responses/​, last accessed June 2021. 20 African Development Bank (above note 2). 21 See O. Rumble and A. Gilder, “Updating NDCs in Times of COVID-19 Lost Momentum?” (Konrad Adenauer Stiftung 2020) https://​www​.kas​.de/​en/​web/​mned​-bruessel/​single​-title/​-/​content/​ updating​-african​-ndcs​-in​-times​-of​-covid​-19​-lost​-momentum, last accessed June 2021. 22 Namely Angola, Botswana, Cabo Verde, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Eritrea, Ethiopia, Gambia, Ghana, Guinea, Guinea-Bissau, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mauritius, Mozambique, Namibia, Niger, Rwanda, Senegal, Sao Tome and Principe, Seychelles, Sierra Leone, Somalia, South Sudan, Togo, Uganda, United Republic of Tanzania, Zambia, Zimbabwe. 15 16

Climate change mitigation law and policy in Africa  243

Note: The figure represents the situation in 2018. A continually updated version of the figure is available at https://​www​.climatewatchdata​.org/​2020​-ndc​-tracker. Source: Climate Watch NDC Content (World Resources Institute 2018).

Figure 10.1

Climate Watch NDC Content 2018

Rwanda was one of the first African countries to have revised its NDC in May 2020. Its level of ambition has been praised for its renewal of “climate optimism”.23 Despite its relatively small GHG emissions profile, Rwanda intends to reduce emissions by 38% by 2030.24 It commits to nearly equal spending on mitigation and adaptation of up to US$11 billion.25 This is slightly more than the total value of its annual national domestic economic output. Other countries that have submitted their revised NDCs include Sudan, Angola, Nigeria, Cabo Verde, South Sudan, Ethiopia, Zambia, Senegal, Kenya and Tonga. A brief review suggests that many of the revised NDCs still contain two mitigation targets, with increased ambition being subject to greater levels of international support. For example, Zambia has a target of: ● reducing its emissions by 25% by 2030 against a base year of 2010 with limited international support (an “unconditional target”); alternatively, ● 47% by 2030 (38,000 Gg CO2 eq.) if substantial international support is provided (a “conditional target”).26 The African Development Bank has noted that unconditional commitments represented 23% of the overall reductions in initial NDCs, while 77% of reductions were conditional on receipt of international support, most notably climate finance.27 This underscores the continued importance of international support to African countries in achieving their mitigation targets.

NDC Partnership, “Rwanda Renews Climate Optimism: Africa’s First Revised NDC Shows Global Leadership” (2020) https://​ndcpartnership​.org/​news/​rwanda​-renews​-climate​-optimism​-africa’s​ -first​-revised​-ndc​-shows​-global​-leadership, last accessed June 2021. 24 Republic of Rwanda, “Updated Nationally Determined Contribution” (2020). 25 Ibid. 26 Zambia, “Updated Nationally Determined Contribution” (2020). 27 African Development Bank (above note 2). 23

244  Research handbook on climate change mitigation law 1.3

Barriers to NDC Ambition and Implementation

The focus on climate finance and international support is a key component of Africa’s implementation of the Paris Agreement and, as illustrated above, continues to inform national approaches to mitigation targets. In 2009, developed countries pledged to annually mobilise US$100 billion in climate finance for developing countries by 2020, from both public and private sources. A revised amount will be negotiated for 2025. The UNFCCC’s Standing Committee on Finance (SCF) and the Organisation for Economic Co-operation and Development (OECD) have independently acknowledged improvements in the availability of climate finance,28 partly due to an elevated investment in private sector renewable energy. Only a fraction of the finances have, however, benefitted Africa.29 The continent has previously secured only 12% of the global total for 2017.30 According to the OECD, climate finance to developing countries reached US$71.2 billion in 2017.31 At the same time, it was estimated that Africa will require approximately US$3 trillion by 2030 to implement the adaptation and mitigation components of their initial NDCs.32 Not only is quantum of finance an issue, but there are also a myriad of issues around accessing available finance, and conditionalities and other requirements imposed upon its issue, that will need to be overcome in order to build trust and facilitate NDC implementation.33 Finance is not the only barrier to NDC implementation and increased mitigation ambition. Limited human resources, a lack of relevant expertise and skills, and competing priorities constrain the ability of many national governments to both generate and implement fully integrated climate change policies and strategies.34 This is made worse by the increased complexity of the skills required to design and implement sectoral and multisector decarbonisation policies.35 In this context, African countries are constrained to negotiate increased financial flows, improved ease of access to finance, and to pursue domestic measures that build capacity and integrate climate change objectives within broader planning instruments. Some applications of UNFCCC, “Summary and Recommendations by the Standing Committee on Finance on the 2018 Biennial Assessment and Overview of Climate Finance Flows” https://​ unfccc​ .int/​ sites/​ default/​files/​resource/​51904​%20​-​%20UNFCCC​%20BA​%202018​%20​-​%20Summary​%20Final​.pdf, last accessed June 2021; and OECD, “Climate Finance Provided and Mobilised by Developed Countries in 2013–2017” (OECD Publishing 2019) https://​www​.oecd​-ilibrary​.org/​environment/​climate​-finance​ -provided​-and​-mobilised​-by​-developed​-countries​-in​-2013​-17​_39faf4a7​-en, last accessed June 2021. 29 The AFDB has noted that annual climate finance flows across sub-Saharan Africa have remained static at US$12 billion for 2015/2016. Further, considerable portions of this finance have been directed to South Africa, amounting to over 20% of total approved funding (African Development Bank (above note 2)). 30 Climate Policy Initiative, “Global Climate Finance: An Updated View 2018” (November 2018). 31 OECD (above note 28). 32 African Development Bank, “Climate Action: African Development Bank calls for global collaboration to turn nationally determined contributions into investment plans” (20 March 2019) available at https://​www​.afdb​.org/​en/​news​-and​-events/​climate​-action​-african​-development​-bank​-calls​-for​-global​ -collaboration​-to​-turn​-nationally​-determined​-contributions​-into​-investment​-plans​-19108, last accessed June 2021. 33 Statement by the African Group of Negotiators (undated) available at https://​afric​angroupofn​ egotiators​.org/​wp​-content/​uploads/​2020/​09/​EN​_EFFECTS​-​.pdf, last accessed June 2021. 34 World Meteorological Organization (above note 3). 35 Ibid. 28

Climate change mitigation law and policy in Africa  245 this may entail the development of investment plans for NDC implementation,36 prioritisation of NDC actions highlighting issues of greatest, need, risk and vulnerability; focusing efforts on private sector investment for NDC implementation; and strengthening mechanisms to promote donor and investor confidence, such as robust systems and processes for monitoring, reporting and verification of emissions, as well as monitoring and evaluation of adaptation, climate finance and technological support outcomes.37 In view of the relatively high percentage of emissions based on LULUCF activities, coupled with renewable energy potential, the African Development Bank (AFDB) has also encouraged African countries to use suitable policy tools and regulations to incentivise renewable energy deployment, climate-smart agriculture and sustainable forest and land management practices across the continent.38 Equally, countries have been encouraged to promote the mitigation of air-pollution impacts that would have dual climate and human health outcomes; to enhance energy-supply security by increasing diversity, technological innovation and employment; and to reduce urban migration.39 A number of African countries have already developed laws and policies to give effect to the above. A regional overview of relevant policies is contained in the following section. Thereafter the discussion turns to a broad overview of the nature and types of laws and related approaches seen on the continent.

2

CLIMATE CHANGE LEGAL AND POLICY DEVELOPMENTS IN AFRICA

2.1

Climate Change Policies

At a continental level, the African Union (AU) has not yet settled on a final climate change strategy. A Draft African Union Strategy on Climate Change was published in 2014 (Draft Strategy), in response to a call for such a strategy from the 2009 African Union Summit; however, to date, the draft has not yet been finalised.40 The purpose of the Draft Strategy is to provide the AU, the Regional Economic Communities, member states and other stakeholders with strategic guidance to address climate change challenges.41 The Draft Strategy is centred around four thematic areas, namely: climate change governance; promoting research, education, awareness raising and advocacy; mainstreaming climate change considerations in planning, budgeting, and development processes; and the promotion of national, regional, and international cooperation. The focus of the Draft Strategy is primarily on responding to the impacts of climate change, i.e. adaptation responses. It takes a position, based on equity, that in view of the “infinitesimally” small contribution of African states to global GHG emissions, that these are best addressed by historic emitters/developed countries on the principle of common but differentiated responsibility.42 That notwithstanding, the Draft Strategy seeks 36 AFDB (above note 32). A well-developed NDC that has an associated investment plan with costed actions will boost investor confidence and can serve as a good resource mobilisation tool. 37 African Development Bank (above note 2). 38 African Development Bank (above note 2). 39 Ibid. 40 African Strategy on Climate Change (May 2014) AMCEN-15-REF-11 (draft). 41 Ibid. 42 Ibid. at 8.

246  Research handbook on climate change mitigation law to promote “climate smart” socio-economic development, and notes that African countries may, based on their specific national circumstances, elect to take mitigation actions including, where appropriate, strategies, policies, plans, programmes, projects and other activities.43 This statement is, however, caveated by the need for developed country support for such action, noting that the scale of any action would be commensurate to the scale of financial support provided; and by the confirmation that it is only developed countries that are bound to take mitigation actions. This position is reflective of the AU’s sentiment in 2014 when the Draft Strategy was compiled, which was also before the Paris Agreement. Possibly in response to the Paris Agreement and its inclusion of all countries in the collective mitigation of climate change impacts, a new study was undertaken to update the AU’s Draft Strategy.44 The purpose of this review was to take cognisance of developments since 2014, including the Paris Agreement, Agenda 2063 (discussed below) and the COVID-19 pandemic.45 Pursuant to this study the African Union then commenced with the development of a draft African Climate Change Strategy 2020–2030, with the support of the Economic Commission for Africa. 46 One of the stated purposes in the initial draft of this document is to be a framework to guide actions in member states towards low carbon emissions development. It also recognises that the African continent has a huge mitigation potential which if fully unlocked, can realise significant resource inflows into the continent to fund adaptation and resilience building. The massive untapped potential for clean renewable energy on the continent is an advantage for its own low emission development and the ever-rising global demand for clean energy …47

Although the draft revised strategy acknowledges this position and it is intended to guide low carbon development, it unsurprisingly continues to have an adaptation focus. Furthermore, mitigation does not feature in the strategy’s main objectives, which include: building effective institutional capacities to implement climate change strategies; harmonising climate change strategies; ensuring Africa “speaks with one voice”; building resilience and reducing vulnerability; and increasing access to finance.48 The draft African Climate Change Strategy 2020–2030 being devised by the AU is intended to operate together with the AU’s Agenda 2063. The latter is a 50-year vision (2014–2063) operating as a shared strategic framework for inclusive long-term sustainable socio-economic and integrative transformation and growth for Africa. Agenda 2063 calls for higher levels of collaboration and support for African-led initiatives and it identifies key programmes to accelerate economic growth and industrial development. This document is incorporated into the national planning frameworks of over 30 countries and is intended to align with and support the achievement of the Sustainable Development Goals. The Agenda recognises climate

Ibid. at 22. Economic Commission for Africa, “ARFSD2021: Panellists call on Africa to adopt greener pathways for development” (3 March 2021). 45 Ibid. 46 African Union, “Draft Africa Climate Change Strategy 2020–2030” (2020) available at https://​ archive​.uneca​.org/​sites/​default/​files/​uploaded​-documents/​ACPC/​2020/​africa​_climate​_change​_strategy​_​ -​_revised​_draft​_16​.10​.2020​.pdf, last accessed June 2021. 47 Ibid. at 31–32. 48 Ibid. at 49. 43 44

Climate change mitigation law and policy in Africa  247 change as a major threat to the continent’s development. To that end it prioritises “inclusive growth and sustainable development” realised through the achievement of environmentally sustainable and climate resilient economies and communities. This includes, amongst others, achieving sustainable consumption and production patterns; and the roll-out of renewable energy. The regional economic blocs have been more successful in the development of climate change strategies and plans. For example, in the Southern African Development Community (SADC), there is the Climate Change Strategy and Action Plan (2015), which is complemented by the SADC Support Programme on Reducing Emissions from Deforestation and Forest Degradation 2012–2015 (2011). Similarly, the East African Community (EAC) has developed an EAC Climate Change Policy (2011), the implementation of which is guided by the EAC Climate Change Strategy (2011) and the EAC Climate Change Master Plan (2011–2031). The Economic Community of West African States (ECOWAS) is in the process of developing a regional climate strategy, to provide coordinated actions at the regional level, aiming to strengthen the level of ambition of West African countries and to develop resilience.49 Lastly, individual countries have made considerable progress in developing national climate change policies and response strategies, and in some instances these have cascaded down to a local level. For example, Ghana has developed a National Climate Change Policy (2013), as have a number of other African countries, including Gabon, Kenya, Zimbabwe, Lesotho and Rwanda.50 Whilst considerable focus is on adaptation and resilience measures in these policies, they do contain dedicated chapters on mitigation. For example, Ghana’s Climate Change Policy focuses on REDD+, renewable energy, energy efficiency measures, and low carbon transport. Other countries, such as Zimbabwe, have dedicated policies and plans for mitigation-specific issues, namely the National Renewable Energy Policy (2020) and Biofuels Policy (2020). Similarly, Mauritius has launched a “Renewable Energy Roadmap 2030” (2019) for the electricity sector and Namibia has published a Renewable Energy Policy (2017). Unsurprisingly, due to high forest cover, REDD+ activities feature prominently in these plans. In total, 28 African countries are partner countries in the UN-REDD Programme.51 Several of them, such as Ghana, Nigeria, Uganda and the Democratic Republic of the Congo, have also drafted national REDD+ strategies, some of which have evolved into national programmes (readiness plans) for REDD+.52 Many countries, such as Angola, the DRC, Madagascar, Malawi, the Republic of the Congo and Zambia, also made express references to the use of REDD+ in their NDCs and they listed the importance of various national REDD+ projects to the realisation of their mitigation goals.53

49 Economic Community of West African States, “Five years after the adoption of the Paris Agreement: ECOWAS is more mobilized than ever for climate action” (11 December 2020) https://​ www​.ecowas​.int/​five​-years​-after​-the​-adoption​-of​-the​-paris​-agreement​-ecowas​-is​-more​-mobilized​-than​ -ever​-for​-climate​-action/​, last accessed June 2021. 50 See the various climate change plans listed for the AU member states in www​.climate​-laws​.org. 51 The UN-REDD Programme is the United Nations Collaborative Programme on Reducing Emissions from Deforestation and forest Degradation (REDD+) in developing countries. 52 See the UN REDD Programme, African country profile: https://​www​.unredd​.net/​regions​-and​ -countries/​africa​.html, last accessed June 2021. 53 Climate Legal (above note 14).

248  Research handbook on climate change mitigation law

3

MARKET MECHANISMS: CARBON PRICING

Heightened global interest in national carbon pricing measures, and financial and political imperatives to introduce them, are compelling an active discussion in Africa on regional and country-appropriate approaches.54 In addition to South Africa’s carbon tax legislation,55 Burkina Faso, Côte d’Ivoire, Rwanda, Senegal and Nigeria are apparently considering or advancing carbon pricing domestic measures.56 Nascent interest in carbon pricing at a regional level is also beginning to emerge; however, discussions remain very much in the early stages. For example, two new regional groups, the West African Alliance on Carbon Markets and Climate Finance and the East African Alliance on Carbon Markets and Climate Finance, have expressed a desire to investigate regional carbon pricing initiatives. These include potentially an emissions trading scheme (ETS) and national taxation. Lastly, the Vulnerable Twenty (V20) Group of Ministers of Finance (of the Climate Vulnerable Forum that includes the Comoros, the DRC, Kenya, Madagascar, Malawi, Rwanda and Tanzania) has put forward its desire to both remove fossil fuel subsidies by 2020, and to work towards implementing “carbon pricing mechanisms”, by 2025, calling on the G20 to lead with the V20 in a drive towards “ensuring all emissions are subjected to carbon pricing”. To date there has been considerable research on the domestic co-benefits of carbon pricing, positing that it generates substantial domestic environmental co-benefits, mobilises domestic revenues for expenditure on social goods and services, puts peer pressure on others, and leverages external finance.57 Notwithstanding such potential benefits and ambitious regional statements of intent, the majority of African countries, particularly those below the equator, have not expressed an intention towards the more traditional forms of carbon pricing, such as an ETS or carbon tax.58 Instead, they have tended to dwell on other forms of carbon pricing,59 such as participation in and benefitting from the Clean Development Mechanism (CDM), or its successor under Article 6 of the Paris Agreement, as well as REDD+, as a form of results-based climate finance (RBCF), as domestic ways of “putting a price on carbon”. This may be indicative of the fact that many African countries lack sources of carbon value (typically industrial-scale GHG emissions), for which taxation and ETSs are the accepted means of imposing a carbon price,60 meaning that alternative sources such as those discussed above become more feasible and attractive. For example, where forestry sequestration represents a source of potential carbon value, it has been suggested that neither carbon taxation nor an

Ibid. South African Carbon Tax Act 15 of 2019. 56 According to the summary of the Africa Climate Week on 19 March 2019, available at https://​ www​.car​bonpricing​leadership​.org/​news/​2019/​3/​21/​africa​-climate​-week​-carbon​-pricing​-seen​-as​-key​ -tool​-to​-drive​-sustainable​-development​-and​-social​-benefit, last accessed June 2021. 57 International Monetary Fund, “Fiscal Policies for Paris Climate Strategies – From Principle to Practice” (May 2019). 58 Climate Legal (above note 14). 59 Carbon pricing includes so-called “explicit” forms of carbon pricing, and entails not only carbon taxation and ETSs but also encompasses less traditional forms, such as results-based climate finance (RBCF) and project-based offsetting approaches. World Bank, “State and Trends of Carbon Pricing 2019” (2019). 60 Climate Legal (above note 14). 54 55

Climate change mitigation law and policy in Africa  249 ETS would be appropriate for imposing a cost thereon.61 As noted earlier, REDD+ is a considerable focus of many African countries, and a means to mitigate their emissions, and for this reason there may be heightened interest in promoting its expansion on the continent. Further research needs to be undertaken on non-traditional forms of carbon pricing (such as RBCF and REDD+) and how it may or may not benefit the continent’s transition to a low carbon economy. Such additional research should include the potential benefits of implicit forms of carbon pricing, such as the removal of fossil fuel subsidies. Fossil fuel subsidies have achieved increased attention in recent years and are now being included in global analyses as part of increased awareness of the role they play in market distortion and the role that their reform will play in ensuring low carbon development. The issue of fossil fuel subsidies is of particular interest in sub-Saharan Africa, where these are relatively high in quantitative terms (although not necessarily when compared to global averages).62 The impacts and risks of the removal of fossil fuel subsidies requires further research in order to fully understand their extent, the socio-economic effects that may arise from their removal and any mitigation or transitional measures that may be appropriate for their phase down or phase out.63

4

CLIMATE CHANGE LEGISLATION

Climate legislation is developing quickly on the continent, with both framework and sectoral laws in abundance.64 A framework climate change law is loosely described as a statute offering a comprehensive, unifying basis for climate change policy, which addresses multiple aspects or areas of mitigation or adaptation (or both) in a holistic and overarching manner.65 The precise contours and content of what such a law should contain remain, however, ill defined.66

Climate Legal (above note 14). Estimates of fossil-fuel subsidies, including those related to electricity, in 30 sub-Saharan African countries were US$32 billion for 2013, dropping to US$26 billion in 2015 due to reform efforts and the falling prices of oil, gas and coal (Shelagh Whitley and Laurie van der Burg , “Fossil Fuel Subsidy Reform in sub-Saharan Africa: From Rhetoric to Reality” (2015) New Climate Economy Working Paper, at p. 7, available at http://​newclimateeconomy​.report/​misc/​working​-papers, last accessed June 2021. 63 Climate Legal (above note 14). 64 O. Rumble, “Facilitating African Climate Change Adaptation Through Framework Laws” (2019) 13(4) Carbon & Climate Law Review 237–245 (Rumble, “Facilitating”); and O. Rumble, “Climate Change Legislative Development on the African Continent” in P. Kameri-Mbote et al. (eds) Law | Environment | Africa (Nomos Verlagsgesellschaft mbH & Co. KG 2019). 65 T. Townshend et al., “Legislating Climate Change On A National Level” (2011) 53 Environment: Science and Policy for Sustainable Development 5; Abbie Clare, Sameul Fankhauser and Caterina Genaioli, “The National and International Drivers of Climate Change Legislation” in Alina Averchenkova, Samuel Fankhauser and Michal Nachmany, (eds), Trends in Climate Change Legislation (Edward Elgar Publishing 2017); Samuel Fankhauser, Catarina Gennaioli and Murray Collins, “Domestic Dynamics and International Influence: What Explains the Passage of Climate Change Legislation?” Centre for Climate Change Economics and Policy Working Paper (2014); Michal Nachmany et al., ‘The 2015 Global Climate Legislation Study: A Review of Climate Change Legislation in 99 Countries: Summary for Policy-Makers”, Grantham Research Institute on Climate Change and the Environment (2015) http://​www​.lse​.ac​.uk/​GranthamInstitute/​wp​-content/​uploads/​2015/​05/​Global​_climate​_legislation​_study​ _20151​.pdf, last accessed June 2021. 66 Rumble, “Facilitating” (above note 64). 61 62

250  Research handbook on climate change mitigation law Sectoral laws address climate change by the grafting of climate change-related provisions into existing laws, such as environmental impact assessment, energy laws or forest management.67 In this section we address both approaches, by providing a high-level summary of some of the most recent developments of sectoral and framework laws in several African countries. We then explore and draw similarities between the content of the framework laws for Kenya and Uganda. 4.1

Sectoral Climate Change Legislation

Over the past decade, existing laws across the continent have been infused with climate considerations to varying degrees. This can be achieved in different ways, for example by the amendment and insertion of specific climate change provisions within existing laws such as existing environmental management laws; by the publication of dedicated climate change regulations like GHG reporting regulations under existing laws; or through the enactment of sector-specific legislation dedicated to a single issue, for example a dedicated energy efficiency law. In summary, sectoral approaches tend to focus on sector-specific issues such as energy generation, energy efficiency, land use management, forestry, transport or dedicated GHG monitoring and reporting laws. In respect of energy generation, for example, Nigeria has dedicated regulations, issued in terms of the Electric Power Sector Reform Act 2005, to incentivise renewable energy. The Regulations on feed-in-tariffs for renewable energy sourced electricity in Nigeria 2015, provide that a total of 1,000 MW by 2018 and 2,000 MW by 2020 should be generated through renewable energy, including biomass, small hydropower, wind and solar. It also instructs distribution entities to source a minimum of 50% of their total supply from renewable energy sources. Similarly, with regard to energy efficiency, Mauritius passed an Energy Efficiency Act in 2011, which establishes the Energy Efficiency Management Office. The latter is tasked with promoting and facilitating the implementation of energy efficiency measures. The Act also mandates energy audits and provides for the development of various related regulations. In relation to forestry, Guinea’s Forest Code68 provides that areas that stabilise water regimes and the climate can be classified as forests, or enjoy similar legal status and related protections under the Code.69 Similarly article 46 provides that owners of forests under the control of the Administration are responsible for developing inventories of plant biomass to estimate the extent to which it acts as a carbon sink as well as for evaluating its biomass fuel potential. Rwanda is one of the few countries to have imposed legislative limits on CO2 emissions, through the passing of a law which establishes emission standards for CO2, as well as other pollutants of concern.70 It also prohibits the open burning of any substance, except for recreational and ceremonial fires or those for agricultural pest control and open-air fires for cooking.

Eloise Scotford, Stephen Minas and Andrew Macintosh, “Climate Change and National Laws across Commonwealth Countries” (2017) 43 Commonwealth Law Bulletin 318. 68 Ordinary law L/2017/060/AN, 2017. 69 Ibid., section 21. 70 Ministerial Order No. 003/16.01 of 15 July 2010 Preventing Activities that Pollute the Atmosphere. 67

Climate change mitigation law and policy in Africa  251 Rwanda has also developed a dedicated law for its National Fund for the Environment, FONERWA.71 The law sets out the organisation and functions of FONERWA as well as its mandate. The fund is dedicated to addressing general environmental as well as climate change matters. Its sources of funding include special grants and subsidies aimed at the management of climate change and its impacts; 0.1% of the total cost of any project which requires an environmental impact assessment in the country; as well as fees paid to the state derived from cutting wood and forestry activities.72 The Seychelles has also established a climate change trust fund under a dedicated law;73 however, the fund’s objectives are primarily adaptation focused. As mentioned above, there are also a few sectoral laws dedicated to carbon pricing. These include South Africa’s Carbon Tax Act 15 of 2019, which imposes a carbon tax of ZAR134 (US$9.40) per ton of CO2e. The Act permits taxpayers to reduce their carbon tax liability through the use of various allowances, one of which is a 10% carbon offset allowance. Regulations have been published that determine the nature of the carbon offsets eligible under the offset allowance and other limitations, as well as procedures and requirements for the listing, trade and retirement of offsets under the Carbon Tax Offset Administrative System.74 Other forms of carbon pricing on the continent include vehicle taxes, which have risen in popularity in several countries. In Kenya, the Finance Act 23 of 2019 increased the excise tax on petrol fuelled vehicles with engine capacities of more than 1.5 litres, from 20% to 25%.75 Moreover, vehicles fuelled by diesel are liable to an excise duty of 35%.76 By contrast, the excise duty on fully electric vehicles has been halved to 10% in an attempt to encourage the use of cleaner transport technologies.77 Malawi has also recently implemented a tax on vehicles to increase government revenue and mitigate climate change impacts. The amount of the tax depends on the engine size or cylinder capacity (cc) of the motor vehicle. South Africa has also imposed a GHG-related vehicle tax in the form of an environmental levy on new motor vehicles produced in the country.78 4.2

Framework Climate Change Laws

Framework climate change laws tend to share common characteristics, such as the establishment of institutional structures and planning provisions and obligations for reporting and information management. Often, although not always, they will also contain provisions to oblige or incentivise GHG emissions reductions.79

Law No. 16 of 22 May 2012, determining the Organisation, Functioning and Mission of the National Fund for Environment. 72 Ibid., section 7. 73 Conservation and Climate Adaptation Trust of Seychelles Act (2015). 74 GN 1556 of 29 November 2019: Regulations on carbon offsets under section 19 of the Act. 75 Finance Act, Act No. 23 of 2019, section 26(a)(ii). 76 Ibid. It applies to models exceeding a 2.5-litre engine capacity. A 20% duty is applied to smaller cars. 77 Ibid. 78 Customs and Excise Act No. 91 of 1964, sections 54A–54D, 101 and 119A. 79 Rumble, “Facilitating” (above note 64). 71

252  Research handbook on climate change mitigation law In Africa, Benin,80 Uganda and Kenya have enacted framework climate change laws, and South Africa and Nigeria have devised Climate Change Bills for public comment.81 The Kenyan Climate Change Act 2016 (Kenyan Act) was the first in Africa and has influenced the content of the various draft framework laws seen in Nigeria, Uganda and South Africa.82 Whilst it is regarded as a model law in many respects, its implementation, including the establishment of the Council and development of regulations required for implementation, has been beset by delays, as discussed in the analysis that follows. In April 2021, Uganda’s National Climate Change Bill 2020 (Ugandan Bill)83 was passed by Parliament. The Bill is a result of a detailed drafting process that commenced in 2017. Climate laws, including those from Kenya, Ghana, Gambia, Senegal, Zambia, Rwanda and the Seychelles were considered as part of the drafting process, and a nationwide consultation process facilitated the incorporation of stakeholder comments.84 The Bill took just under a year to be passed by Parliament; however, it is still awaiting presidential assent. The South African Climate Change Bill was published by the Department of Forestry, Fisheries and the Environment for public comment in 2018; however, it has yet to be tabled in Parliament.85 In February 2020, the South African President committed to finalising the Bill shortly, during his annual State of the Nation Address. In the intervening period, South Africa has revisited some of the institutional aspects set out in the Bill and has established a Presidential Commission on Climate Change. Two attempts were made to develop a framework law in Nigeria in 2009 and 2017, but both were unsuccessful. The draft of 2017 was supported by the National Assembly and civil society, but lacked the support of the Executive.86 In 2018, it was refused by the President on the basis that it sought to create new entities when government was seeking to downsize.87 In 2019, the federal Ministry of Environment established a legal working group which is working on a further iteration of a national framework law.88 In addition to Nigeria, Zimbabwe and Ghana are also considering the potential development of a draft framework Climate Change Bill.89 There is a faint commonality between the laws that have been published, particularly insofar as they focus on institutional requirements, finance and adaptation or give equal priority to adaptation amongst other measures.90 Most of these laws also contain dedicated provisions on mitigation, either directly in the form of carbon allowances or empowering provisions to Law No. 2018/18 on Regulating Climate Change. The Nigerian Climate Change Bill, 2017. 82 Rumble, “Facilitating” (above note 64). 83 Ugandan National Climate Change Bill, Bill No. 1, Uganda Gazette No. 8, Volume CXIII, 7 February 2020. 84 Ibid. 85 South African Climate Change Bill, Government Gazette 41689 Notice 580 of 8 June 2018. 86 Constance Dlamini, Edward Wabwoto, Huzi Mshelia, Nkiruka Chidia Maduekwe, Bernard Namanya and Pascale Bird, “Legislating the Paris Agreement in Africa: Approaches to Climate Legislation in Eswatini, Kenya, Nigeria, and Uganda” (European Capacity Building Initiative March 2021) https://​ecbi​.org/​sites/​default/​files/​National​%20Climate​%20Legislation​_0​.pdf, last accessed June 2021. 87 Ibid. 88 Ibid. 89 No drafts have been published to date for public comment. 90 Rumble, “Facilitating” (above note 64). 80 81

Climate change mitigation law and policy in Africa  253 direct mitigation measures, or alternatively indirectly, such as including mitigation within the mandate of institutional structures. The subsections which follow discuss some of the commonalities between the Kenyan Act and the Ugandan Bill, highlighting some of their successes and challenges.

5

COMPARATIVE REVIEW: UGANDA AND KENYA’S FRAMEWORK CLIMATE CHANGE LAWS

5.1

Institutions and Governance

Globally, there is a trend to a more integrated, multilevel and multisector approach to climate change planning with a number of institutions now covering all aspects of climate change in the form of inter-ministerial coordinating bodies, intersectoral technical working groups, and multi-stakeholder coordinating bodies.91 Although there is no best practice on this issue, ideally institutional design should be responsive to national circumstances and existing institutions, and when operating they should incorporate the participation or be guided by other agencies, scientific advisory committees, and stakeholders.92 The ability of these institutions to wield power and be effective is also directly a consequence of the adequacy and breadth of their legal mandate.93 In Kenya, the National Climate Change Council (Council) is chaired by the President, with the Cabinet Secretary for environment and climate change affairs acting as Secretary to the Council.94 The Council acts as an “overarching national climate change coordination mechanism”,95 and is constituted by ministers from across Cabinet, including the Cabinet Secretary of Energy, as well as the Cabinet Secretary of Economic Planning. It is designed to be highly inclusive, and within the Council are individual representatives of the private sector, civil society, academia and a representative of a marginalised community. Their nomination is determined by rules set out in section 7(2) of the Act. Although the Act does not provide for the establishment of a technical advisory body, notionally such technical expertise could be provided through the non-governmental representatives. Included within the Council’s functions is a duty to oversee the “mainstreaming” of climate change within national and country governments; the approval and oversight of the implementation of the National Climate Change Action Plan; the provision of guidance on the review and harmonisation of sectoral laws across the country; and the “setting of targets for the reg-

IPCC (V. R. Barros et al. (eds)), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2014) 1203. 92 Richard Lazarus, “Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’(2008) 94 Cornell Law Review 1153. 93 Michal Nachmany et al., “Global Trends in Climate Change Legislation and Litigation: 2017 Update” (Grantham Research Institute on Climate Change and the Environment 2017), available at http://​www​.lse​.ac​.uk/​GranthamInstitute/​publication/​global​-trends​-in​-climate​-change​-legislation​-and​ -litigation​-2017​-update/​, last accessed June 2021. 94 Section 5 of the Kenyan Act. 95 Section 6 of the Kenyan Act. 91

254  Research handbook on climate change mitigation law ulation of [GHGs]”.96 The Act is non-specific on the entities to which the targets will apply, and neither does it clarify their wider purpose or objective. It also does not set out relevant considerations for their determination. Moreover, the Council has not yet been constituted, some five years after the Act’s promulgation. In this regard Wambua notes the absence of provisions directing the time frames for the nomination of members to the Council, or for its first sitting.97 The formalisation of the Council has also been delayed by litigation relating to the appointment of representatives of civil society and marginalised communities and contestation about who these representatives should be. The President had initially sought to appoint representatives of these groupings to the Council without first having them vetted by Parliament, as required by the Act.98 This process was found by the courts to be procedurally unlawful.99 Until such time as the Council is formally constituted, a number of the key provisions in the Act, such as the development of the fund (discussed below) will be delayed. The Ugandan Bill adopts a different approach to institutional structures. Initially there was a degree of consternation on the point, with some stakeholders wanting to continue using the Department of Climate Change, while others were strongly in favour of establishing a new and independent institution.100 The final version kept the Department of Climate Change as a key authority, but it reports to and executes the instructions of the existing multi-ministerial Policy Committee on Environment. It was felt that the Department and the existing Committee were sufficiently capable of discharging the coordination function across sectors if adequately strengthened by the new law and because apparently government policy prohibited the establishment of new authorities/agencies, especially where existing government departments are able to execute the relevant function.101 The Department of Climate Change is accordingly mandated under the Ugandan Bill to ensure that the country meets its international obligations and with “coordinating, monitoring and evaluating the programmes and actions of government” on climate change.102 Its mandate is, amongst other things, to promote the development application and diffusion of emission reduction technologies; to serve as a national knowledge and information centre; to support district governments, and in collaboration with lead agencies to “develop a mechanism to, amongst other things, enhance low carbon growth”.103 The Department is to act in concert with the existing Policy Committee on Environment, established under the National Environment Act 5 of 2019. The latter is to advise the Department on the implementation of the Bill and has a wide and relatively undefined mandate to make “decision[s] and policies”, presumably in relation to climate change, for implementation by the Department. Under the National Environment Act 5 of 2019, the mandate of the Committee does include the provision of guidance in the formulation and implementation of climate change policies, plans and pro-

Section 6 of the Kenyan Act. C. Wambua, “The Kenya Climate Change Act 2016: Emerging Lessons from a Pioneer Law” (2019) 13(4) Carbon & Climate Law Review 257–269. 98 Section 7(2) of the Kenyan Act. 99 Republic v National Assembly & 5 others Ex-parte Greenbelt Movement & 2 others [2018] eKLR; Judicial Review 11 of 2017. 100 Dlamini et al. (above note 86). 101 Ibid. 102 Section 13(1) of the Ugandan Bill. 103 Section 13(2)(f) of the Ugandan Bill. 96 97

Climate change mitigation law and policy in Africa  255 grammes.104 The Environmental Management Act also confirms that the Policy Committee on Environment is chaired by the Prime Minister and is made up of 16 ministers from various sectors of cabinet, including the ministers responsible for water and the environment; finance, planning and economic development; energy and mineral development; and local government and internal affairs.105 At a district level, the Natural Resources Departments are also designated as responsible for climate change, and for implementing district climate change action plans. Equally the District Environment and Natural Resources Committee, established under the National Environment Act, is mandated to deal with various climate change integration and implementation functions at a district level, under the Ugandan Bill.106 5.2

National Action Plans and Mitigation

Both laws contemplate the development of a national plan or strategy. In the case of Kenya, the Cabinet Secretary responsible for Environment and Climate Change is responsible for compiling a National Climate Change Action Plan, for approval by the Council. The Action Plan is required to prescribe measures and mechanisms, amongst other things, to guide the country towards the achievement of low carbon climate resilient sustainable development; for “mitigation against climate change”; to identify actions that are enablers of climate change responses; to set out structures for public awareness and engagement; to review and determine mechanisms for climate change knowledge management and access to information; to enhance energy conservation, efficiency and use of renewable energy in industrial, commercial, transport, domestic and other uses; to strengthen approaches to climate change research and development training and technology transfer; to “review and recommend duties of public and private bodies on climate change”; and to review levels and trends of greenhouse gas emissions.107 The Kenyan Act further requires the Cabinet Secretary to have regard to various prevailing national circumstances as well as international law and policy when developing the Action Plan.108 Interestingly the Action Plan is elevated to have quasi-legal status, and all public powers are “bound by the contents of” the Plan, when exercising any power or discharging any statutory duty or function.109 It has been criticised for failing to specify its relationship to other statutes or plans and strategies, particularly Kenya’s National Energy Policy.110 In a similar fashion the Ugandan Bill requires the Department of Climate Change to develop a Framework Strategy on Climate Change (the Strategy).111 Its purpose is to guide government in planning and budgeting for, financing, and monitoring climate change programmes and activities.112 The Department is required to be informed by the obligations of Uganda under the UNFCCC and the Paris Agreement when developing the Strategy. The Act 104 Section 6 of the National Environment Act 5 of 2019. The Ugandan Bill refers to the Environment Act 2015; presumably this is meant to be a reference to the 2019 Act. 105 Section 6 of the National Environment Act 5 of 2019. 106 Section 18 of the Ugandan Bill. 107 Section 13 of the Kenyan Act. 108 Section 13(5) of the Kenyan Act. 109 Section 13(9) of the Kenyan Act. 110 Wambua (above note 97). 111 Section 5(1) of the Ugandan Bill. 112 Section 5(2) of the Ugandan Bill.

256  Research handbook on climate change mitigation law is relatively focused on the adaptation content of the Strategy, but also requires it to “specify the mechanism for achieving climate-resilient development and low [GHG] emissions and its financing”.113 It also provides for public awareness and education, information dissemination, research and development needs. The Act further contemplates the development of a Climate Change Action Plan to facilitate the implementation of the Strategy.114 The latter is required to indicate the measures and actions to be undertaken to enhance sinks and reservoirs of GHGs.115 Action plans are also required to be developed at the district level. Unlike Kenya, the Ugandan Bill does not elevate these plans to having the “force of law” in the country. However, it is unusual insofar as it annexes the UNFCCC, the Kyoto Protocol and the Paris Agreement and provides that these agreements additionally have the “force of law” in the country.116 5.3

Private Sector: Mitigation Obligations

The Kenyan Act does not contain any specific provisions relating to a duty of private entities to meet emission reduction targets or comply with allowances. Rather it empowers the Council to set “targets for the regulation of [GHGs]”,117 but then does not discuss the role of such targets elsewhere in the Act. It does, however, provide that the Council may, in consultation with the Cabinet Secretary for Environment and Climate Change and “relevant” State Departments, impose “climate change obligations” on private entities, including Public Benefit Organisations.118 Although the Act does not elaborate what these obligations may entail, it could conceivably include an obligation on an emitter to reduce its GHG emissions. It also contemplates the development of regulations for reporting on the extent to which the prescribed obligations have been complied with.119 It is an offence to fail to comply with a climate change obligation, which upon conviction may result in a fine of up to ten million shillings (approximately US$93,000), and/or imprisonment of up to ten years. The Ugandan Bill adopts a similar approach. It empowers the Minister, in consultation with the Department or a lead agency, to impose “climate change obligations” on individuals and private entities, the details of which are to be prescribed in regulations.120 Under a separate provision, the Act further empowers “lead agencies” to establish “mitigation, adaptation and compatibility standards, measures and performance levels for responding to the climate change matters which relate to the mandate of the respective lead agencies”.121 The wording of the section implies that these measures could apply to both private individuals (since there is a sanction for failing to comply with them) as well as to the lead agency itself. Although section 16(1) applies to both mitigation and adaptation, section 16(2) then sets out a duty of the lead agencies to establish climate change “measures”; these measures are, however, limited to adaptation and resilience actions. Presumably section 16(1) is worded sufficiently broadly to give lead agencies the power to prescribe mitigation measures in addition to adaptation actions 115 116 117 118 119 120 121 113 114

Section 5(4)(d) of the Ugandan Bill. Section 6 of the Ugandan Bill. Section 6(2)(c) of the Ugandan Bill. Section 4 of the Ugandan Bill. Section 6 of the Kenyan Act. Section 16(1) of the Kenyan Act. Section 16(2) of the Kenyan Act. Section 22 of the Ugandan Bill. Section 16(1) of the Ugandan Bill.

Climate change mitigation law and policy in Africa  257 on private individuals; however, the section is not a model of clarity. Under the Bill it is an offence to fail to comply with such measures as may be prescribed, which upon conviction may result in a fine of approximately US$28,100 and/or five years’ imprisonment.122 It also allows for directors’ liability for corporate offences.123 Unusually, the Ugandan Bill also has a dedicated provision that regulates carbon offsets. It first recognises various offset instruments, referred to as “climate change mechanisms”, namely compliance and voluntary ETSs, non-market and cooperative approaches in Article 6 of the Paris Agreement, as well as any other “mechanism” prescribed by regulation.124 The Bill requires the project proponent to obtain the consent of the Minister before benefitting from or participating in any of the above-listed climate change mechanisms, including the voluntary market.125 This unusual and restrictive provision unfortunately will likely have a profoundly stifling effect on the implementation of the market, particularly the voluntary carbon market, within the country. Section 8 also requires the Department to monitor the participation of project proponents to ensure conformity with the conditions of approval, and empowers the Minister to make regulations prescribing the process for approval, as well as ownership of emission reduction units and certified emission reductions.126 5.4

Public Sector: Mitigation Obligations

In relation to public entities, the Kenyan Act empowers the Council to impose “duties relating to climate change” on any public entity and all levels of government.127 In view of the fact that the Council is not yet operational, no such duties have been prescribed yet. In addition to the above, each State Department must incorporate climate change within their sectoral strategies and action plans and report on sectoral GHG emissions for the national inventory.128 It also requires them to designate a unit with adequate staff and financial resources to coordinate the implementation of the national Action Plan and related functions into relevant sectoral strategies.129 In Uganda, the Minister is empowered to prescribe a national base year, reference levels, and “targets for the reduction of [GHG] emissions” for each year for each “lead agency” within government.130 A lead agency is defined to include a ministry, department or local government responsible for implementing climate change actions under the Bill, i.e. the Bill does not identify the specific departments and ministries in a schedule. Lead agencies are also required to submit annual reports on the status of implementation of the standards, measures and performance levels for responding to climate change.131 If the reports disclose

124 125 126 127 128 129 130 131 122 123

Section 16(5) of the Ugandan Bill. Section 16(6) of the Ugandan Bill. Section 8(1) of the Ugandan Bill. Section 8(2) of the Ugandan Bill. Section 8(4) of the Ugandan Bill. Section 15(10) of the Kenyan Act. Section 15(5) of the Kenyan Act. Section 15(5) of the Kenyan Act. Section 10(1) of the Ugandan Bill. Section 26(1) of the Ugandan Bill.

258  Research handbook on climate change mitigation law “unsatisfactory performance” the Minister may require the relevant department to undertake an investigation and report further.132 5.5 Incentives The Kenyan Act aims to promote low carbon technologies, improve efficiency and reduce emissions intensity by facilitating approaches and the uptake of technologies that support low carbon and climate resilient development.133 Although relatively unspecific on this point, the Kenyan Act requires the Cabinet Secretary for Environment and Climate Change, in accordance with the Cabinet Secretary responsible for Finance, to grant incentives for climate mitigation (and adaptation) activities, including renewable energy and accredited training programmes.134 Although the incentive regulations were required to be published within a year after the promulgation of the Act, they have not yet been finalised.135 In a similar fashion, albeit less detailed, the Ugandan Bill also provides that the Minister, in consultation with the Minister of Finance, may provide incentives for mitigation actions, and requires the Minister to make regulations to this effect.136 5.6

Information and Reporting

The adequacy of a mitigation response is highly dependent on the accuracy of mitigation data within the country. The Paris Agreement also imposes a more expansive approach to information reporting by individual countries, who will need to gather the requisite data from across sectors in order to meet these commitments. For these reasons many recent framework laws or their regulations contain information and reporting requirements. Under the Kenyan Act, there is a multitude of reporting obligations. Included within these is a duty on each state department and national government public entity to report on sectoral GHG emissions for the national inventory.137 The Act also requires the Cabinet Secretary for Environment and Climate Change to make regulations (i) to guide the reporting and verification of climate change actions,138 and (ii) for the monitoring and reporting by private companies on their performance of their assigned climate change obligations under section 16, as well as the verification thereof.139 In Uganda, the Bill indirectly refers to the existence of a national inventory of emissions.140 It requires a determination of the volume of GHG emissions and removals every two years, in accordance with internationally acceptable reporting practices under the UNFCCC and the Paris Agreement.141 The Minister is also required to prescribe in regulations the stand-

Section 26(2) of the Ugandan Bill. Section 26(2) of the Kenyan Act. 134 Section 26(1) of the Kenyan Act. 135 Section 26(4) of the Kenyan Act and Wambua (above note 97). According to Dlamini et al. (above note 86), the delay in establishing the Council and ensuing litigation, was partially as a result of the lack of a clear framework on the resolution of disputes regarding the Council’s membership. 136 Section 21 of the Ugandan Bill. 137 Section 15(5) of the Kenyan Act. 138 Section 22 of the Kenyan Act. 139 Section 16(2) of the Kenyan Act. 140 Section 12(1) of the Ugandan Bill. 141 Section 9(2) of the Ugandan Bill. 132 133

Climate change mitigation law and policy in Africa  259 ard format, requirements and methodologies for the measurement of GHG emissions and removals.142 The Bill requires the Minister to prepare national communications under the Paris Agreement and UNFCCC, and also requires such reports to be laid before Parliament.143 Lastly it requires “all information and reports” submitted to the Department by lead agencies, individuals and private entities to be verified by registered verifiers. To this end it requires any person who intends to conduct verification to apply for registration, unless they are already an “internationally accredited” verifier.144 5.7 Financing As outlined earlier in this chapter, financing of climate change is a priority for many African countries, and the issue features prominently in African framework laws as well as sectoral legislation. It could be speculated that the structured, transparent, rule-based trust funds that are governed by statute, with clear objectives and spending and accounting requirements, and which are separated from the national fiscus, may become, in time, a more attractive means through which to provide international donor finance.145 Potentially they also afford national governments more flexibility on how to spend such finance instead of the more typical project-based approach to climate finance. The Kenyan Act establishes a dedicated climate change fund. The fund is administered by the Council which is mandated, amongst other things, to define eligibility criteria for the fund to finance climate change actions and enhance achievement of low carbon climate resilient development.146 The fund has a relatively wide remit, including the power to fund grants for climate change research and innovation; to provide grants and loans to business, industry, civil society, academia and other stakeholders for development of innovative climate change actions; finance, through grants and loans the implementation of adaptation and mitigation actions; and to provide funds for technical assistance to country governments. This fund is intended to operate alongside a strategy to identify sources of funding, the monitoring of expenditure and to avoid corruption in the national use of climate finance.147 As noted earlier, however, the Council has not yet met and this has delayed operationalisation of the Act, including the fund. Under the Ugandan Bill, the issue of a climate change fund was contentious during the stakeholder engagement process. Some commentators favoured the creation of an independent fund, similar to Kenya and Rwanda, whilst others preferred the use of the Finance Ministry in collaboration with the Ministry for Environment.148 The government elected to follow the latter approach, as the Finance Ministry had a policy that prohibited the creation of new funds, and because previous attempts to establish dedicated funds (such as the Tree Fund and Environmental Fund) were considered to be ineffective.149 Accordingly, under the Bill, the Minister responsible for Finance is obligated to provide for “climate change financing”, 144 145 146 147 148 149 142 143

Section 9(6) of the Ugandan Bill. Section 11(4) of the Ugandan Bill. Section 12 of the Ugandan Bill. Rumble, “Facilitating” (above note 64). Section 25(5) of the Kenyan Act. Section 25(9) of the Kenyan Act. Dlamini et al. (above note 86). Dlamini et al. (above note 86).

260  Research handbook on climate change mitigation law taking into account viable climate financing mechanisms at the national level and international climate financing mechanisms referred to in Article 9 of the Paris Agreement.150 The finance is for multiple purposes, including financing climate change actions and measures and grants and loans and incentives to individuals, corporations and local government for climate change research and innovation.151

6 CONCLUSION The African continent has been relatively prolific in the development of climate change policy and law. To date, countries have understandably focused on adaptation priorities, mindful of the high levels of vulnerability faced by most African countries and the continent’s relatively low emissions profile. That notwithstanding, of late, regional and national policies are increasingly emphasising the value and need for low carbon development, conditional on international financial and technical support. African countries have also demonstrated considerable support for the Paris Agreement and an appetite to enhance ambition in the second round of NDCs. The continent’s ability to achieve its mitigation aspirations, however, remains hampered by multiple constraints, including challenges encountered in the quantum of and access to climate finance, as well as capacity and technological constraints. For this reason, the latest iteration of NDCs continues to provide conditional and unconditional mitigation targets subject to the receipt of enhanced financial and other support. The development of the AU’s African Climate Change Strategy 2020–2030, once finalised, will be instrumental in shaping a continental vision towards mitigation and it will be interesting to see how issues such as climate finance, the global push towards national net-zero mitigation targets, carbon pricing and Article 6 of the Paris Agreement are dealt with in the final draft. In the interim, guidance from the regional blocs (so far including East, West and Southern Africa), including the relevant climate change policies and strategies developed for each, will be critical in shaping regional ambition and intent. It appears that such blocs will be particularly influential in the development of regional carbon pricing initiatives in the medium term. Legislative developments have also been relatively abundant. As this chapter has illustrated, there are a number of sector-specific laws across multiple countries. These include dedicated statutes and regulations on energy efficiency, energy generation and renewable energy, carbon pricing and forestry; and laws establishing dedicated climate change funds. A handful of countries have also either developed a framework climate change law or are in the process of developing one. In this chapter the mitigation-related provisions of the Kenyan Act and the Ugandan Bill, which was recently passed by Parliament, were considered. There are a number of similarities between these laws, including broad powers to impose climate change duties on private emitters, obligations on departments and ministries relating to mitigation, and dedicated provisions on financing climate change. In the case of Kenya, implementation has been hampered by litigation regarding the establishment of the Council and the ensuing delay in its constitution. This has had indirect delays on the implementation of various other provisions requiring the approval and/or direction of the Council. The Kenyan Section 20(1) of the Ugandan Bill. Section 20(2) of the Ugandan Bill.

150 151

Climate change mitigation law and policy in Africa  261 Act has also been criticised for its lack of specificity on the scope, content, and considerations underpinning the setting of GHG emission targets, the lack of a time frame for developing such targets (and ensuing delay in doing so); the unstipulated duties of private and public entities with regard to emission reduction; and a failure to have enacted the prescribed incentives for emission reduction activities.152 Similar criticisms could be levelled against the Ugandan Bill, at least insofar as there is a lack of specificity on the potential mitigation content of the proposed climate change obligations on the private sector. Notwithstanding criticisms against these laws, they are to be applauded for their detail and scope. They are ambitious in the extent and reach of their obligations across both the public and private sectors, and in their detailed requirements on monitoring and reporting, planning and climate change mainstreaming across government. Kenya’s Act, amongst other national and international developments, has also been catalytic in the development of other framework laws across the continent, and it has served as a model for a number of countries, including Uganda, in the process of developing a framework law.153 It is likely that these laws will cross-pollinate to other jurisdictions, duly modified to take local and national considerations into account.154 It will also be interesting to observe developments in other African countries as they grapple with the legal and policy-enabling environment to facilitate the implementation of national policies and NDCs. African countries will be hard pressed to do so whilst also responding to the dual impacts of the pandemic and related multiple debt crises; urgent adaptation imperatives; and within the broader framework of the international impetus for net-zero targets and negotiations around enabling factors to achieve these.

152 Wambua (above note 97). She further notes that whilst the Act anticipates that regulations will be made on these issues, and goes as far as setting out a timeline for the development of related incentives, so far the requisite targets from the Council have not been set and regulations have not been developed, a feature of the slippage common in environmental law. 153 See for example Dlamini (above note 86) and Rumble, “Facilitating” (above note 64). 154 Rumble, “Facilitating” (above note 64).

PART III OVERARCHING LEGAL TOOLS FOR CLIMATE CHANGE MITIGATION

11. Climate finance after Paris David Driesen and Cinnamon Carlarne

INTRODUCTION This chapter will examine carbon finance – the funding of greenhouse gas abatement and adaptation – in light of the Paris Agreement. The Paris Agreement hinged to a large extent on developed country pledges to enhance carbon finance, as the Conference of the Parties saw developed country efforts to help developing countries address global climate disruption as essential to making a just transition to a carbon free economy.1 We can fruitfully think of carbon finance in terms of two potential sources of capital, public and private. Often governments finance projects mitigating greenhouse gas emissions in their jurisdictions with public capital. But the global climate regime has always aimed to stimulate the creation and enhancement of international institutions funded by developed country governments to aid greenhouse gas abatement and adaptation in developing countries.2 The parties to the United Nations Framework Convention on Climate Change (UNFCCC) have viewed this from the beginning of the regime as a key component of climate equity, both because developed countries bear the primary responsibility for creating and perpetuating the climate crisis, and because developing countries often lack sufficient resources to play their needed part in abatement without outside assistance.3 Alternatively, private capital can finance greenhouse gas abatement projects. When scholars speak of climate finance, they often have in mind carbon trading’s creation of incentives for private investment in greenhouse gas abatement projects.4 The primary international example prior to the Paris Agreement involved the Clean Development Mechanism (see Chapter 9).5 An important distinction exists between private and public finance in terms of their impact on global climate disruption. Public finance of mitigation generally reduces greenhouse gas emissions, while private finance generally does not.6 The reason for this is fairly simple. When a project developer privately finances greenhouse gas abatement, s/he does so with the expectation that the abatement project will produce a credit of some kind that s/he can sell to recoup the expenditure with some profit. The purchaser of the credit has an interest in buying it because possession of the credit justifies not making an otherwise required emission reduction. Forgone emission reductions in one place pay for the abatement project generating carbon 1 Cinnamon P. Carlarne and J. D. Colavecchio, “Balancing Equity and Effectiveness: The Paris Agreement and the Future of International Climate Change Law” (2019) 27 N.Y.U. Envtl. L.J. 107, 143–45. 2 See infra, section 2 (discussing the evolution of climate finance mechanisms under the UNFCCC). 3 United Nations Framework Convention on Climate Change, Art. 2, Art. 4(3), May 9, 1992, S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107. 4 David M. Driesen and David Popp, “Meaningful Technology Transfer for Climate Disruption” (2010) 64 J. Int’l Aff. 1, 1–2. 5 Ibid. 6 Ibid. at 3.

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264  Research handbook on climate change mitigation law credits in another. The privately financed project does not increase net emission reductions; it lowers the cost of abatement. By contrast, when a government finances abatement without claiming a credit it may generate additional emission reductions, not just a lowering of the cost of already planned abatement. Recent developments, however, reveal some potential for private finance to spur additional abatement. Thanks in part to public finance of carbon abatement before Paris, the cost of renewable energy has drastically decreased.7 So, we now see the emergence of private green bonds that may add emission reductions, not just limit the cost of government-required abatement.8 We begin this chapter’s treatment of carbon finance with an account of how the Paris Agreement reshaped the international institutional structure aiming to stimulate climate finance. Because the following chapter focuses on carbon trading, we mostly emphasize the creation of the Green Climate Fund and only briefly address the evolution of the flexibility mechanisms (international trading programs). We will then discuss both the history and the future of green finance’s contribution to greenhouse gas abatement. We begin with some examples of common subsidies that have long lowered market barriers to greenhouse gas abatement, such as publicly financed transportation and funding of more energy efficient buildings. These subsidies have helped lower the cost of renewable energy and reduced our energy footprint, while contributing to environmental justice. We continue with a discussion of the use of pollution taxes and auctioning of emission allowances to generate funds to enhance and expand public finance of carbon abatement. We then discuss the recent emergence of a substantial market in green bonds. And we close by discussing the implementation of the Green Climate Fund. Throughout we evaluate carbon finance’s potential to contribute to environmental justice and the ambitious decarbonization goal suggested by the Paris Agreement.9

1

CLIMATE FINANCE BEFORE AND AFTER THE PARIS AGREEMENT

Despite more than three decades of efforts, both substantive commitments to climate mitigation and adaptation and the financing of these efforts remain woefully inadequate. Moreover, the ongoing global pandemic is putting pressure both on political commitments to and the financing of climate efforts due to strains on governmental resources and a widespread economic downturn. As Paul Rose suggests “the economic impact from COVID-19 will reverberate in the economy for years to come,”10 with far-reaching impacts across governmental programs and services. Moreover, despite the fact that COVID-19-induced changes to mobility and daily life may have brought about a temporary decline in emissions,11 even with the Al Gore, “Where I Find Hope” N.Y. Times (December 13, 2020). See, e.g., Alex Ross, “Green Bonds: Securities Regulation Towards a Low-Carbon Economy,” (2018) 24 NZBLQ 259. 9 John C. Dernbach, “Legal Pathways to Deep Decarbonization: Lessons from California and Germany” (2017) 82 Brook. L. Rev. 825. 10 Paul Rose, “Towards a National Resilience Fund” (2021) SSRN Electronic Journal 10.2139/ ssrn.3780035. 11 Corinne Le Quéré et al., “Temporary Reduction in Daily Global CO2 Emissions During the COVID-19 Forced Confinement,” (2020) 10 Nature Climate Change 647–53, https://​www​.nature​.com/​ articles/​s41558​-020​-0797​-x accessed 13 November 2020. 7 8

Climate finance after Paris  265 lockdown, carbon dioxide levels in the first months of 2020 were higher than 2019.12 As the pandemic wanes and the global economy increasingly picks up pace, “unless there is a clear focus to promote equity, environmental health, around a just transition to a green economy,” emissions will rise.13 The intersection of crises – climate change, inequality, and COVID-19 – compounds the challenges of responding to climate change, even as it reveals deep and persistent vulnerabilities and inequalities that make rapid response all the more important. Consequently, even with all of the challenges the pandemic has brought, this is a critical time to maintain momentum on climate financing. Climate finance is not a new field. In fact, it is now entering its third decade and its forms are becoming increasingly varied and sophisticated. As Alexander Thompson notes, “from the earliest days of the global climate change regime, the question of how to finance efforts to address the problem” has played a prominent role “in policy debates and international negotiations.”14 The Climate Policy Initiative estimates that, in 2019, “annual [financial] flows rose to USD 579 billion, on average, over the two-year period of 2017/2018, representing a USD 116 billion (25%) increase from 2015/2016. The rise reflects steady increases in financing across nearly all types of investors.”15 Similarly, the Climate Bonds Initiative, which tracks bond issuances labelled as “green” or “climate” bonds, calculates a total of US$257.5 billion issued in 2019, with US$192.9 billion issued in 2020, at the time of writing, with this estimated to increase to US$350 billion by the end of the year.16 Despite this steady increase, the gap between climate finance needs and climate finance flows remains significant. For example, even as flows of climate financing reached record highs in 2019, the World Bank suggested that “the financing required for an orderly transition to a low carbon, resilient global economy must be counted in the trillions, not billions.”17 Similarly, focusing more narrowly on adaptation finance, a 2016 report produced on behalf of the United Nations Environment Programme (UNEP) cautioned that the costs of adaptation are likely to be two-to-three times higher than current global estimates by 2030, and potentially four-to-five times higher by 2050. Previous global estimates of the costs of adaptation in developing countries have been placed at between US$70 billion and US$100 billion a year for the period 2010–2050. However, the national and sector literature surveyed in this report indicates that the costs of adaptation could range from US$140 billion to US$300 billion by 2030, and between US$280 billion and US$500 billion by 2050.18

World Health Organization, “Q&A: Climate change and COVID-19” (April 22, 2020), https://​ www​.who​.int/​news​-room/​q​-a​-detail/​q​-a​-on​-climate​-change​-and​-covid​-19 accessed 13 November 2020. 13 Ibid. 14 Alexander Thompson, “The Global Regime for Climate Finance: Political and Legal Challenges” in Cinnamon P. Carlarne, Kevin R. Gray and Richard Tarasofsky (eds), The Oxford Handbook of International Climate Change Law (Oxford University Press 2016). 15 “Global Landscape of Climate Finance 2019” Climate Policy Initiative Report (October 2019), https:// ​ w ww ​ . cli ​ m atepolicy ​ i nitiative ​ . org/ ​ p ublication/ ​ g lobal ​ - landscape ​ - of ​ - climate ​ - finance ​ - 2019/​ accessed 11 November 2020. 16 The Climate Bond Initiative, https://​www​.climatebonds​.net accessed 11 November 2020. 17 The World Bank, “Climate Finance” https://​www​.worldbank​.org/​en/​topic/​climatefinance accessed 11 November 2020. 18 Daniel Puig et al., “The Adaptation Finance Gap Report 2016. United Nations Environment Programme” (2016) https://​unepdtu​.org/​publications/​the​-adaptation​-finance​-gap​-report/​ accessed 11 November 2020. 12

266  Research handbook on climate change mitigation law Moreover, in order to meet the Paris Agreement’s target of limiting warming to 1.5 °C, the IPCC estimates that we would need to see an “upscaling of supply-side energy system investments between now and mid-century, reaching levels of between 1.6–3.8 trillion USD … globally with an average of about 3.5 trillion USD … over 2016–2050.”19 Thus, as Rose suggests, “Climate finance is thus operating at less than 20% of what is required to meet the Paris Agreement’s challenge.”20 Even as both estimates of climate financing needs and climate financing flows have increased, the parties to the UNFCCC have sought ways to prioritize climate finance by centering it at the heart of international climate agreements and climate commitments. Again, this is not a new phenomenon. Since the inception of international climate law with the adoption of the UNFCCC in 1992, the parties to the Agreement have sought to create mechanisms for climate finance. Historically, these mechanisms have been fragmented and, frequently, ill-performing.21 Under the UNFCCC alone, a handful of mechanisms exist or are used to finance mitigation and adaptation measures, including the Global Environmental Facility, the Adaptation Fund, the Special Climate Change Fund, the Least Developed Countries Fund, and the Green Climate Fund. As Thompson describes the terrain of UNFCCC climate finance: Only one organization, the [Global Environmental Facility], was originally designated in the FCCC to operate its financial mechanism. The [Global Environmental Facility] has since been joined by the GCF and they compete with several additional multilateral organizations and funds involved in channeling North-South finance. The result is a complicated tapestry of governance institutions.22

As Thompson describes, the Global Environmental Facility was the original funding entity for the UNFCCC.23 However, because of the Global Environmental Facility’s institutional linkages to the World Bank, with its complicated donor-driven history, many developing countries opposed relying on the Global Environmental Facility as the primary climate finance

19 Joeri Rogelj et al., “Mitigation Pathways Compatible with 1.5 °C in the Context of Sustainable Development” in Intergovernmental Panel on Climate Change, Global Warming of 1.5 ºC (2018) https://​ www​.ipcc​.ch/​sr15/​ accessed 11 November 2020. 20 Paul Rose, “Debt for Climate: Green Bonds and Other Green Financial Instruments” in Michael Mehling and Harro van Asselt (eds), Research Handbook on Climate Finance and Investment Law (Edward Elgar Publishing forthcoming 2023). 21 Global Environmental Facility, “Progress Report on the Least Developed Countries Fund and the Special Climate Change Fund” (December 11, 2018) GEF/LDCF.SCCF.25/03, https://​www​.thegef​.org/​ sites/​default/​files/​council​-meeting​-documents/​EN​_GEF​.LDCF​_​.SCCF​_​.25​.03​_Progress​_Report​.pdf accessed 15 December 2020; Global Environmental Facility, “Progress Report on the Least Developed Countries Fund and the Special Climate Change Fund” (Oct. 8, 2014) GEF/LDCF.SCCF.17/03 iii https://​www​.thegef​.org/​sites/​default/​files/​council​-meeting​-documents/​GEF​-LDCF​.SCCF​_​.17​-03​%2C​ _Progress​_Report​_on​_the​_LDCF​_and​_the​_SCCF​%2C​_2014​-10​-08​_4​.pdf accessed 15 December 2020 (e.g., noting that “the demand for LDCF resources considerably exceeds the funds available for new approvals”). 22 Thompson (n. 14) at 13. 23 Nicholas Van Praag, “The Global Environmental Facility: Instrument Established” (1994) 33 I.L.M. 1273.

Climate finance after Paris  267 mechanism.24 Partly in response to these concerns, between 2000 and 2001, the parties to the UNFCCC adopted decisions creating the Adaptation Fund, the Special Climate Change Fund, and the Least Developed Countries Fund. All three of these funds were created by the parties to the Kyoto Protocol in 2001, with the goal of providing additional assistance to developing countries for adaptation, technology transfer, and economic diversification.25 The Adaptation Fund was designed to fill a funding gap for developing country parties that are particularly vulnerable to the adverse effects of climate change. The Fund is used to finance adaptation projects and programs in developing countries. Unlike the Special Climate Change Fund and the Least Developed Country Fund, which rely on voluntary contributions, the Adaptation Fund is financed through a percentage levy on all Certified Emission Reduction Units produced by Clean Development Mechanism projects.26 Moreover, unlike the Special Climate Change Fund and the Least Developed Country Fund, which are both operated by the Global Environmental Facility, the Adaptation Fund is overseen and managed by the Adaptation Fund Board, which was created by the parties to the Kyoto Protocol in 2007 and is fully accountable to the parties of the Protocol.27 The Least Developed Countries Fund is similarly designed to support developing countries, but focusing more narrowly on assisting the 49 Least Developed Country parties28 in implementing the least developed country work program, including preparing and implementing national adaptation programs of action. Similarly, the Special Climate Change Fund is intended to finance adaptation, technology transfer, and capacity building projects in developing countries and is designed to implement the Adaptation Fund and the Least Developed Country Fund. Since their creation, however, the demand for resources from each of these funds has far exceeded both available funds and approvals, even as funds have increased and the operation of the funds has become more efficient.29 These funds, which seek to direct financing towards some of the highest need adaptation projects and to the highest risk but most overlooked regions, remain marginal entities within the increasingly complex and crowded global climate finance arena. Each of these mechanisms, as well as the Green Climate Fund, possess different missions, leadership, and operating policies. Consequently, they intersect and compete with one another to receive and funnel North–South finance, creating a fragmented and ill-coordinated UNFCCC climate finance regime. Further complicating the terrain of climate finance is the fact that the UNFCCC mechanisms exist alongside a growing number of other public and

Thompson (n. 14) at 13, noting that the choice of the [Global Environmental Facility] to manage climate financing was controversial because it was tied institutionally to the World Bank and was viewed by the developing world as excessively controlled by donor countries. … By the late 1990s there was growing discontent among developing countries with the state of climate finance and they began pushing for alternatives that served their priorities and offered them more control. 25 Decision 1/CMP.3, “Adaptation Fund,” FCCC/KP/CMP/2007/9/Add.1 https://​unfccc​.int/​resource/​ docs/​2007/​cmp3/​eng/​09a01​.pdf​#page​=​3 accessed 11 November 2020. 26 United Nations Climate Change, “Adaptation Fund,” https://​unfccc​.int/​Adaptation​-Fund accessed 11 November 2020. 27 Decision 1/CMP.3, “Adaptation Fund” (2007) FCCC/KP/CMP/2007/9/Add.1. The Global Environmental Facility does, however, provide secretariat services for the Fund. 28 UNFCCC, “Least Developed Countries under the UNFCCC,” (2009) https://​unfccc​.int/​resource/​ docs/​publications/​ldc​_brochure2009​.pdf accessed 11 November 2020. 29 Global Environmental Facility (n. 27). 24

268  Research handbook on climate change mitigation law private financing institutions, ranging from international bodies such as the IMF and World Bank, to regional development banks, to individual state aid programs, to non-profits. The general field of climate finance, therefore, is complex, fragmented, and increasingly crowded. This fragmentation allows experimentation and diversification, but it may inhibit iterative learning and create both inefficiencies and inequities. Our understanding of both patterns of climate finance, and climate finance needs, is still nascent, but is evolving rapidly. Clearly, both mitigation and adaptation financing are on the up swing, but there is both a need for significant further increases in financing to meet estimated needs, as well as a need to better map the field in order to understand where money is coming from, where it is going, what kinds of projects it is supporting, and what kinds of successes and failures it is producing. Recognizing both the centrality of climate financing and the shortcomings of the current system, in the 2009 Copenhagen Accord, the parties to the UNFCCC proposed the creation of a new climate financing mechanism, the Green Climate Fund. With the Green Climate Fund, the parties sought to create a new institution that would serve as “an operating entity of the financial mechanism of the Convention to support projects, programs, policies and other activities in developing countries related to mitigation including REDD-plus, adaptation, capacity-building, technology development and transfer.”30 Moreover, at the time of its proposal, developed countries committed to mobilizing jointly US$100 billion a year in new and additional public and private climate finance by 2020,31 a significant portion of which should flow through the newly proposed Green Climate Fund. In addition to proposing a new stand-alone UNFCCC-specific climate fund, the proposal for the Green Climate Fund reflected the shifting priorities of the parties to the treaty in its emphasis on financing mitigation and adaptation activities equally. In the 2010 Cancun Agreements,32 the parties to the UNFCCC formally established the Green Climate Fund as an operational entity of the financial mechanism of the Convention and laid out the key governance and operational framework for the Fund. Subsequently, in the 2015 Paris Agreement, the parties committed to “Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development,”33 reiterating existing financial obligations of developed country parties and

U.N. Framework Convention on Climate Change, “Copenhagen Accord” 8, U.N. Doc. FCCC/ CP/2009/L.7 (December 18, 2009), https://​unfccc​.int/​resource/​docs/​2009/​cop15/​eng/​11a01​.pdf accessed 11 November 2020. 31 Ibid. 8, noting that “Scaled up, new and additional, predictable and adequate funding as well as improved access shall be provided to developing countries, in accordance with the relevant provisions of the Convention,” and that In the context of meaningful mitigation actions and transparency on implementation, developed countries commit to a goal of mobilizing jointly USD 100 billion dollars a year by 2020 to address the needs of developing countries. This funding will come from a wide variety of sources, public and private, bilateral and multilateral, including alternative sources of finance. 32 United Nations Framework Convention on Climate Change, Ad Hoc Working Group on Long-Term Cooperative Action, Thirteenth Session, Cancun, Mexico, November 29– December 10, 2010, �