The UK’s Climate Change Act 2008 is widely regarded as the prototype for domestic climate change legislation. The history of the Act reveals that it was intended to serve as a model for other countries to follow. A long term emissions reduction target for 2050 (an 80% reduction as against a 1990 baseline) was established on the basis of:
- the global climate goal of the time, i.e. limiting warming to 2˚C
- working out the UK’s fair contribution to that goal, with reference to the standard of equal per capita emissions.
Fundamentally the Act was designed to limit the UK, long-term, to know more than its fair share of the ‘global carbon budget’ consistent with relative safety (on the basis of the best available science of the time).
The Act provides for the responsible Minister (Greg Clark, Secretary for Business, Energy and Industrial Strategy – because our post-Brexit government does not even have a department dedicated to climate change anymore…) to revise the carbon target if a) we have increased our scientific understanding of the severity of climate change and b) if there have been developments in international law and policy surrounding climate change. It was recognised at the time that knowledge and policy regarding climate change does not remain static, and that it would not be sensible to maintain a target stuck on autopilot if the science significantly changed. Of course by 2017 there have been a great many changes in both science and international law, as reflected in the more ambitious temperature goal established in the Paris Agreement (‘well below 2˚C’ while aiming for 1.5˚C).
Alongside the Act was established the Committee for Climate Change (CCC), consisting of supposedly independent experts on climate science, economics, behavioural science and business, to advise the government on the level of emission reduction targets and report back to Parliament on the progress made. The CCC’s 2016 post COP21 report recognised that the obligations contained in the Act are insufficient to meet Paris Agreement goal – but nonetheless concludes that the Act is not to be amended on the basis that amending that it can be amended at some later point (as if time were on our side). Assessed against the standard on which the Act was originally based (equal per capita emissions) the UK’s current carbon target would consume approximately three
This contradiction between the UK Government’s self-presentation as a ‘climate leader’ and the reality of its domestic targets comes as a shock. The October 2016 report by ClientEarth – activist lawyers who have won 3 court cases against the government concerning air pollution regulation failures – confirmed that the Act has been “dangerously neglected” and that it is in desperate “need for revival”. So although the UK hails itself as a trailblazer for being the first country in the world to set legally binding carbon budgets, its successive governments have fallen behind with regards to actually making meaningful changes. It has failed to put in place policies necessary for substantive emission reduction or set long-term targets, as exemplified by David Cameron’s breach of the Conservative party’s manifesto pledge by abandoning a progressive Carbon Capture and Storage plan that it had promised in 2015.
Brexit poses an even bigger threat as lawyers face the daunting prospect of replacing the environment-related legislation provided by the EU. This is crucial because over half of the emission reduction required by the Act for 2030 was expected to come from EU policies, which covered areas such as vehicle fuel efficiency standards, the EU carbon trading scheme and the directives targeting resilience of the natural environment (e.g.: Habitat and Birds Directive). Plan B’s case is more important than ever, now that we will no longer be subject to the measures implemented by the EU to reduce emissions.
It is not news that governments are beholden by powerful lobbyists. Neither is it surprising that politicians, comfortably sat in the pockets of fossil fuel companies, shy away from substantial action, even when faced with such a blatant contradiction as the one in the CCC’s latest report mentioned above. It is for this reason that Plan B and others are pursuing litigation and political mobilisation: in the current context, it seems that addressing the existing legislation and engaging with the politics are more effective means than grassroots protesting and direct action, let alone free market tech responses. The main struggle with climate change is the political reluctance to do anything about it – we know exactly what we need to do, but we are not doing it.
We draw hope from previous global successes that were as frustratingly slow-moving and difficult to get people to engage with as the fight against dangerous anthropogenic global warming. The civil rights movement against segregation and apartheid involved immense transformations in political, legal and social spheres; and the fight against the tobacco industry saw courts widely accepting science despite years of deliberate misinformation campaigns by lobbyists. These cases resemble ours: we need a huge shift in public perception of climate change, a global acknowledgment of the urgent problem, and a disentanglement of politics from powerful fossil fuel industry lobbyists.
Plan B is arguing that the UK Government must take reasonable rational measures to protect the public because:
- that is the underlying purpose of the Act
- to do otherwise would be irrational
- certain fundamental human rights require that it does so (e.g. the right to life and the right to family
While the case-law on human rights and climate change is not yet evolved, there is little doubt that climate change is now the single greatest threat to the basic rights of current and future generations. After all, it is undeniable that younger generations must take into account the future of the planet they will be bringing children into: how can we turn our backs on a blatant breach of the right to have a family?
This intergenerational aspect and the different perspectives it brings to the table are significant to Plan B’s case, as exemplified by the variety of co-claimants chosen to represent the UK populace in court. The rabbi is in the position to talk about the significance of inaction in the face of humanitarian catastrophe; the doctor can talk about climate change from a public health perspective; the child raises the concern for future generations; the owner of property in British Overseas Territories is already a victim of rising sea levels.
Giving the fight against climate change a publicly credible voice is vitally important. Armed with a world-class legal team of solicitors at Bindmans and QC barrister Jonathan Crow – Attorney General for the Prince of Wales – as well as benefiting from Radio 4 coverage and public support from public figures such as Sir David King – Cambridge professor and specialist advisor on climate change to the Blair-Brown government – helps to demonstrate the mainstream appeal of our approach. The mere fact that the barristers representing us are working pro bono is, in itself, a huge confidence boost: it shows that they believe in the case and have high hopes of winning it.
Cosmin Corendea, legal expert the at UN University Institute for Environment, urges us to take advantage of the growing flexibility of courts and their willingness to serve the people to trigger a wave of climate litigation in the countries with the highest emissions. The law, however inadequate at curbing emissions in itself, is serving as a powerful tool for holding governments accountable, providing a framework within which individual activists can work and effectuate meaningful change. If formal litigation is what it takes to get the UK government to do what is necessary in order for us to do our fair share of emissions reductions, then that is what we must do. The government is bound by law – now we have to enforce it.
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