Lawyers warn carbon budgets ‘unenforceable’

Provisions in the draft Climate Change Bill subjecting a government to a judicial review if it failed to meet carbon budgets will be ineffective, legal experts told a parliamentary inquiry in May.

The Bill was hailed by the government as an "eco-constitution", but environmental groups have criticised it on several grounds. Chief among these are the 2050 target to cut carbon dioxide emissions by just 60%, the major role allotted to carbon credits and the five-yearly budget cycle (ENDS Report 388, pp 49-50 ).

A further criticism concerns the Bill’s sanctions. The Bill places a legal duty on the Secretary of State to meet the 2020 and 2050 targets and to remain within its carbon budgets. Failure to do so would open a government to judicial review.

Giving evidence to the House of Commons Environment Committee’s inquiry on the Bill, Michael Woods of the UK Environmental Law Association said it would be hard to prove the government had failed to fulfil its duties because "the data they would need to muster would be difficult".

Even if the High Court agreed that the government had failed to meet its duty "it would not actually change anything" because the ruling would come after the target date or budget period, Mr Woods said. This particularly applied to the 60% target. "How do you come up with some sort of remedy in 2050 which is going to take account of something which went wrong in 2025?" he asked.

William Wilson of law firm Burges Salmon agreed with committee chairman Michael Jack (Conservative, Fylde) that in addition to statements to Parliament at the end of each budget period and a response to the annual reports from the proposed Climate Change Committee, there should be annual parliamentary debates that could put the government at risk of losing the motion if it failed to meet its targets or budgets.

Mr Wilson also agreed with Mr Jack that Parliament should be able to amend legislation establishing new policies such as emissions trading schemes. As it stands, the draft Bill includes enabling powers allowing the government to introduce policies without primary legislation and merely gives Parliament the chance to accept or reject secondary legislation by affirmative resolution.

The Engineering Employers Federation, representing major energy users such as the steel sector, said if new trading schemes were not established by primary legislation and were open to debate and lobbying, allowances should be allocated free of charge - even through some sectors, such as the power generators, have been able to pass on the costs to customers and make windfall profits.

Meanwhile, the 60% reduction target remains contentious, with government and business regarding it as politically realistic and environmental groups and academics dismissing it as too low to offer a chance of avoiding damaging climate change caused by a 2°C rise in global temperatures by the end of the century.

In a tetchy session before the committee, Environment Secretary David Miliband conceded it is "towards the bottom end of what’s required" and did not dispute the committee’s claim that the target will fail to limit the temperature increase to 2°C. But he said there was "substantial consensus" around the figure and "without further independent scientific advice it would not be right" for him to select a target higher than that recommended by the Royal Commission on Environmental Pollution - even though the RCEP report is now seven years old.

Mr Miliband was supported by The Carbon Trust’s chief economist Professor Michael Grubb, who said the "at least 60%" target is "a perfectly reasonable position to take at present".

But Alice Bows of the Tyndall Centre for Climate Change Research warned that, including emissions from domestic aviation and shipping, the UK’s cumulative carbon budget over 2000-2050 would total 7-7.5 billion tonnes of carbon. If the government’s own apportionment model is used, this would equate to an atmospheric concentration of 600-750ppm CO2, rather than the 550ppm that the 60% target is designed to aim for. Ms Bows said according to recent research, this would give a 92-100% chance of exceeding 2°C and a 50% chance of exceeding 4°C.

Professor Grubb also defended the proposal for each carbon budget period to cover five years, rather than the three years wanted by NGOs, who fear five years would allow a government to pass the buck to its successor. Any attempt by a government going into an election to hand on a failure to meet a budget would, he said, be "blindingly obvious".

The Confederation of British Industry said it is worried that the Bill’s target to cut carbon emissions by 26-32% by 2020 is more ambitious than that recently agreed by EU heads of state to cut greenhouse gas emissions by 20% by the same date, and that the UK is "showing its hand a little too soon".

CBI director of business environment, Michael Roberts, said the 26-32% target would require extra measures beyond those "envisaged under the current energy policy review". But Robin Mortimer, head of the government’s climate change Bill team, said the target originally came from the previous energy White Paper in 2003, and claimed that the updated carbon emission projections published alongside the latest White Paper (see pp 40-41 ) "show we are on course for 26%".

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