CLIMATE LAW AND POLICY INNOVATIONS

 

 

The Climate Law and Policy Innovations hub houses short posts concerning innovative local, regional, and national domestic law and governance responses relating to climate change.

 

You can also find more information on databases relating to climate laws and policy in our New Knowledge Resources hub.

 

 

 

Mexico’s General Law on Climate Change

 

 

In the last decade, Mexico has emerged among the leading countries to take significant actions to combat climate change. In 2012, it introduced the General Law on Climate Change (Ley General de Cambio Climático). At the time of passing the law, Mexico was considered to be the 13th biggest emitter of greenhouse gases and was already experiencing climate change effects ranging from severe droughts to increasingly frequent and intense rainstorms. It is noteworthy that the law made Mexico the second country, after the United Kingdom, to enact comprehensive general climate legislation, it takes a multi-sectoral and multi-stakeholder approach, and it was the first developing country to do so. Thus, this post serves as a brief introduction to the structure and some of the most interesting provisions in the law.

 

The law sets out the institutional and legal framework from which Mexico will develop its national climate change policy. To this effect, it has created innovative legal tools and institutional structures. The law stipulates ambitious economy-wide goals on emission reduction including a novel emission trading mechanism and renewable energy targets. The drafters also ensured that Mexico’s various international commitments are reflected in the new law. Moreover, the law also requires that national policies are to be regularly revised and adapted, but that goals may not be reversed once set so as to safeguard the progressive national action on climate change. Moreover, various provisions are aimed at strengthening transparency and accountability including mechanisms for monitoring, reporting and evaluation.

 

To implement the objectives set out in the law, it mandates the creation of several federal bodies tasked with developing holistic national policies on adaptation and mitigation, an information system of climate change indicators and the setting up of a national greenhouse gas emissions inventory. It also clearly sets out the responsibilities of the different governmental bodies and it establishes the National System for Climate Change as a coordination mechanism between the different institutions. To ensure public participation in policy making and project implementation, civil society, the private sector, and academia are part of the Council for Climate Change and Evaluation Committee. In order to raise funds for the implementation of the adaptation and mitigation policies from national and international, and public and private sources, the law also prescribes the establishment of a Climate Change fund.

 

While the law was passed as a major milestone at the time of its enactment, Mexico has struggled with effectively implementing the law and funding the necessary institutions, as recent analysis has shown. Nonetheless, the General Law on Climate Change remains a remarkable piece of legislation and a template for other countries to follow.

 

 

Further links:

 

To read the original Ley General de Cambio Climático click here and for an unofficial English translation click here.

 

Further links:

A Legal Working Brief on The New General Law of Climate Change in Mexico Leading National Action to Transition To a Green Economy by IDLO

 

Mexico's historic climate law: an analysis by Christina McCain

 

Mexico’s General Law and an overview of the legislative and executive portfolio compiled by the Grantham Institute and LSE

 

 

Kenya's 2016 Climate Change Law

 

Kenya’s enactment of the Climate Change Act in May 2016 made Kenya one of the first African countries, and one of the few countries worldwide, to adopt a comprehensive general legal framework to address the adverse consequences of climate change. The Act established a strong institutional and legal framework for adaptation and mitigation and guidelines for policy making at the national and sub-national level for achieving low carbon climate-resilient development. In adopting the act, Kenya followed one of the main recommendations of its National Climate Change Action Plan which suggested drafting a standalone legal and policy framework for climate change. This post is intended to give a brief overview of some of the most interesting and innovative provisions of the new Kenyan climate legislation.

 

One of the main institutional changes is the establishment of the National Climate Change Council (NCCC) which is vested with a multitude of responsibilities and powers. It is chaired by the Kenyan president and aimed at having the voices of all relevant stakeholders heard. As such it is composed of the representatives of key national and subnational government institutions as well as representatives from civil society, the private sector, and “marginalised communities”. Further institutions envisioned by the Act include the Climate Change Directorate which serves as Secretariat to the Council and the governmental lead agency on national climate change plans. It also envisions the National Environment Management Authority (NEMA), an institution tasked with monitoring, investigating and reporting on compliance. NEMA can impose fines on organisations of up to $9,900 for non-compliance, and withholding or giving false evidence can result in prison sentences of up to five years. Moreover, it establishes a Climate Change Fund as a financing mechanism intended to mobilized domestic governmental and non-governmental contributions for priority climate change actions and interventions approved by the NCCC.

 

The responsibilities of the aforementioned NCCC include ensuring the mainstreaming of climate change amongst the different levels of government and approving the National Climate Change Action plan formulated by the Cabinet Secretary every five years. The NCCC also advises national and county governments on measures necessary for addressing climate change and attaining low carbon climate change resilient development, as well as administering the Climate Change Fund and setting targets for the regulation of greenhouse gas emissions. It can impose climate change obligations on both private and public entities.

 

The act also contains noteworthy provisions on climate liability. Individuals can bring claims in front of the Environment and Land Court against actions that do or are likely to adversely affect efforts towards mitigation and adaptation to the effects of climate change. The court has the power to order the prevention or discontinuance of the disputed action(s) and may provide compensation to a victim. In a remarkable shift away from an anthropocentric focus, the standard of proof does not require the demonstration that a person has incurred loss or suffered injury. Some have already expressed concerns about the potentially far-reaching consequences for businesses, but it remains to be seen how the new law will be applied.

 

As mentioned above, many parts of the Climate Change Act have yet to be operationalised, including establishing the National Climate Change Council and Climate Change Directorate. The passing of subsidiary legislation to establish the national climate change fund is also yet to take place, as well as awareness raising amongst stakeholders about the Act and its implications, and developing the required guidelines.

 

Further resources:

To read the 2016 Climate Change Act (Kenya Gazette Supplement No 68 (Acts No 11) click here.

 

For an overview of the legislative framework in Kenya provided by LSE and the Grantham Institute click here.

 

 

The UK’s 2008 Climate Change Act: A Groundbreaking Legal and Institutional Framework

 

The UK’s 2008 Climate Change Act is particularly noteworthy for being the first general bill passed to specifically address the adverse consequences of climate change. As such, it has pioneered a variety of legal and institutional innovations and the lessons learned in the UK have served the (few) other countries that have drafted general climate law bills so far. This post will provide a short overview of notable components and innovations made by the 2008 Climate Change Act and will focus especially on the emission reduction scheme and the establishment of the Committee on Climate Change.

 

The law is intended to provide a long-term framework to help the transition to a low carbon economy, improve carbon management, and encourage investment in low carbon goods. The Act’s core provisions are mainly concerned with establishing legal and institutional structures to ensure emissions reductions. The structures include setting out a system of carbon budgeting and conferring powers to establish an emission trading scheme. Part I is focused on the carbon targets and carbon budgeting (i.e. the quantity of greenhouse gas emissions that can be emitted in total over a specified time). Part 2 sets out the institutional arrangements including establishing the Committee on Climate Change. Part 3 sets out the emission trading schemes, while Part 4 deals with the impact of and adaptation to climate change, and Part 5 covers waste reduction schemes and amends several existing laws to conform with the Climate Change Act.

 

One of the most innovative features of the act is the introduction of legally binding greenhouse gas reduction targets to be achieved in the UK and abroad. According to the Act, the net UK carbon account is required to be at least 80% lower than the 1990s baseline by 2050. This made the UK the first country to enshrine emission reduction targets into law, although the justiciability of these obligations is debated (see articles referenced below), and the law does not provide for sanctions if the targets are not met. The main mechanism chosen to ensure that all targets – both legally binding ones and those more aspirational in nature – are met, relies largely on a detailed and comprehensive scheme of reporting obligations and political accountability through parliamentary scrutiny of government action to achieve the targets set.

 

The second new feature that will be discussed in this post is the establishment of an independent expert body - the Committee on Climate Change. Its main functions are to advise the government on how to meet the country’s long term carbon reduction target through the carbon budgeting process, and to issue reports on the progress towards targets and budgets. A proposal to limit the discretionary power of the Secretary of State to accept the Committee’s recommendation, without further debate except under very extreme circumstances, was rejected. However, to improve transparency, the act requires that the rejection of the Committee’s advice must be supported by published reasons.

 

Even without limiting the discretionary power of the Secretary of State, the establishment and wide ranging statutory scrutiny and reporting remit of the Committee do grant it significant potential influence. Its well-researched reports help to scrutinize the government’s progress, point out problems and alternatives and keep climate change on the public agenda. Moreover, the involvement of high-level politicians in the appointment and reporting process makes the Committee a relatively senior body with an important advisory role, which can contribute to a higher level of buy-in of its recommendations and analysis, and increase the trickle-down effects to lower levels of government.

 

It is also worth noting that a strong and credible independent body, along with legally binding targets, help address the time inconsistency problem that can arise when governments attempt to reduce emissions through carbon policy. Achieving significant carbon emission reductions requires considerable irreversible private sector investment. This investment will strongly depend on investors’ expectations about the credibility of the government’s long-term climate change strategy. If investors believe that it is likely that carbon emissions will be taxed heavily or that an effective emission trading scheme will be put in place, they are more likely to make investment in cleaner energy sources. On the other hand, when investors have cause to believe that the government might rescind these policies in a few years they are likely to underinvest in the necessary technologies for an energy transition.

 

Overall, the 2008 Climate Change Act provides an innovative attempt to put a legal and institutional framework in place to address the consequences of climate change. However, while it marks progress, there are many aspects that require reconsideration including strengthening the enforceability of the commitments made. For the time being, much will depend on information gathered from the reporting requirements, political will, and public pressure to ensure that the targets are met.

 

As a closing remark, it should also be mentioned that a focus on the potential progress that can be achieved through the institutions and structures of the Climate Change Act is insufficient to reach the UK’s targets. Much of the necessary progress is achieved through energy legislation and a host of other measures which do not directly derive from the Climate Change Act. To gain a more thorough understanding of the UK’s framework, these associated areas of policy and law should also be taken into account.

 

Further resources:

 

For the text of the 2008 Climate Change Act click here.

 

 

For an overview of other climate legislation in the UK click here.

 

 

For a discussion on the enforceability of the targets see “A New Sort of Duty? The Significance of “Outcome” Duties in the Climate Change and Child Poverty Acts” by Colin Reid (2012) or "Enforcing the Climate Change Act" by Jonathan Church (2015).

 

Publications including reports by the UK’s Committee on Climate Change can be found here.

 

For further elaboration on the topic of time inconsistency see A review of the role and remit of the committee on climate change by Peter G. McGregor, J. Kim Swales, Matthew A. Winning (2012).

 

 

The above is a selection based on the work of legal researchers at the Climate Law Governance Initiative, of some of the best open access online resources currently available. To propose further resources to be featured at this site, a new category or other suggestions please email us at climatelawgovernance@cisdl.org