Fit for 55: the role of the rule of law in national climate governance
17 January 2022
By Sharon Turner, independent consultant
Image credit: Thijs ter Haar, CC BY 2.0, via Wikimedia Commons
Fit for 55 is the EU’s proposed target to cut greenhouse gas emissions by 55% by 2030. The Fit for 55 Review could become a decisive opportunity to accelerate international uptake of emerging lessons about why national climate governance matters, what works, and the role of the rule of law in stabilising those arrangements.
In the years since the adoption of the Paris Agreement the climate community has witnessed a growing recognition - particularly amongst European countries - that an effective response to climate change requires not only targeted sectoral laws but also a ‘framework’ approach to the rule of law whereby its role is to manage and stabilise the process by which climate policy is developed across the economy and for the long-term. Framework climate laws are not a replacement for sectoral rules. Instead, they function to clarify the national long-term climate objective and create procedural and institutional arrangements designed to ensure that the process by which climate policy is made, is consistent with the achievement of the long-term objective, and conforms to certain minimum governance standards. The pattern of legal innovation represented by the emergence of framework climate laws is – to quote Professor Fisher's blog in this series – a remarkable spark of ‘legal imagination’ by countries serious about climate action and democracy. This evolution in deployment of the rule of law reflects a recognition that a scientifically credible response to global warming requires change on a societal scale and is therefore, by definition, a deeply political process, which must be owned by the societies navigating the local transformations. In addition, to quote the Framing blog for this excellent series from Professors Lee, Scotford and Vaughan - framework climate laws arguably anticipate and seek to mitigate the risks posed by climate change to democratic rule of law values by institutionalising the requirement to act, but ensuring transparency, trust, public participation and both political and legal accountability for decision making.
Although the design of national climate laws varies, they nevertheless reflect an emerging consensus about two crucial issues on effective climate governance, namely:
1. The state must assume legal responsibility for achieving the long-term climate neutrality objective.
2. Although political leadership has been derived from several sources in countries with national climate laws, there is nevertheless a consensus that national climate governance plays an important role in stabilising and fostering domestic political leadership. Governance provides processes that could be described (to pick up further on the blogs above), as promoting a national thoughtfulness, calculability and climate consciousness, whilst at the same seeking to protect democratic values, despite the urgent need for action. It plays important roles in, for example:
- a. ensuring transparency and trust about the real policy options for achieving the long-term objective;
- b. establishing a national discipline of ‘back-casting’ policy making from the long-term objective;
- c. fostering cross-party political understanding and support for sufficiently ambitious action through routine debate and scrutiny;
- d. stimulating public engagement about the national pathways to net zero; and
- e. ensuring political and legal accountability for policy delivery.
Despite extensive law making on climate by the EU, there is a perception that existing laws are not sufficient to drive the quality of policy making needed for climate neutrality.
The reflex towards a framework law approach to the role of the rule of law in tackling climate change began in the UK in 2008 with the adoption of the Climate Change Act, but spread rapidly in the wake of the Paris Agreement. Now it includes almost half of the EU’s Member States and several in the Union’s neighbourhood and beyond1. A decisive moment in the uptake of this legal paradigm occurred in December 2019 when the then new President of the European Commission (Ursula Von der Leyen) announced her intention to propose the adoption of an ‘European Climate Law’ as part of a European Green Deal package of measures designed to create what she described as the world’s first ‘climate neutral continent’, the launch of which notably reemphasised the Union’s commitment to democratic values. Regulation (EU) 2021/1119 was adopted in 2021.
Whether and how well this legislation is implemented will be crucial to the Union’s credibility as a global climate leader, and to global interest in the concept of framework climate laws and their credibility as an indispensable component of an effective rule of law strategy on climate change.
For almost a decade the European Climate Foundation and its partners have worked to advance understanding of long-term approaches to climate governance – and specifically the value of using the rule of law to enshrine binding long-term framework climate laws aligned to the Paris objectives. They are also working with independent experts to progressively build an evidence base on the impact of this type of legislation on the quality of political leadership, public support and policy making.
On one level civil society recognises the adoption of the EU Climate Law as a significant strengthening in the quality of EU climate ambition and governance. However, they also recognise that this seminal legislation is an incomplete rule of law project because it is weakened by a crucial ‘national ownership gap’. While the EU Climate Law commits the Union to achieve climate neutrality it does not bind Member States individually to this objective. It also says little if anything about the minimum standards of climate governance that should exist at national level to support the transformational policy making that will be required if the Union is to achieve the collective objective. Although the EU Governance Regulation 2018/1999 creates common rules for national climate planning, this Regulation was adopted before the Union committed to the far more ambitious climate neutrality objective. The Governance Regulation is almost entirely focused on short term climate planning with only limited emphasis on the importance of credible arrangements for long-term climate governance, which is confined to skeletal provisions on national long-term strategies, and then only towards a vague long-term objective.
The EU Climate Law ignores the reality that while some Member States have unilaterally adopted national framework climate laws, many have not, and not all these national frameworks are of equal quality. As a result, the EU’s Climate Law will be implemented against a highly inconsistent landscape of national climate governance arrangements, which threatens the achievement of its objectives. Although civil society worked closely with the European Parliament to shape the quality of the European Climate Law, there was recognition that its implementation will require further campaigning to achieve a levelling up of the minimum standards of national climate governance. Bottom-up campaigning continues within individual Member States; however, this is a slow process with uncertain outcomes in terms of quality. Consequently, civil society is turning increasingly to view the so-called 'Fit for 55' debate now underway in Brussels as a crucial opportunity to accelerate the levelling up process.
1 France, Sweden, Austria, Denmark, Finland, Germany, Ireland, Spain and the Netherlands. Countries outside the EU with equivalent legislation include principally: UK, Norway, Iceland, Switzerland, New Zealand. At sub- national level, see Scotland.
Climate Change and the Rule of Law
The Climate Change and the Rule of Law blog invites contributors to reflect on emerging issues and relations between climate change and rule of law.