A Critical Legal Analysis of Climate Change Acts - Ambition, Action and the Construction of an Alternative Model

Climate change acts are an important and novel type of legislation, adopted in a range of countries to drive greenhouse gas (GHG) emissions reductions. I show how this legislative form has largely settled on the model of the UK Climate Change Act 2008 (CCA), the focus of my thesis. The CCA is valued and considered effective by environmental law scholars, activists, and climate-conscious politicians. Where criticisms have been made of the CCA I find that, notwithstanding their force, its legislative model is not questioned. I identify a number of reasons for this: prevailing frameworks of analysis limit our expectations and our imaginations; we rationally seek to protect what climate change acts are understood to achieve; and we are able to overestimate what climate change acts achieve because we lack a framework for properly evaluating their effectiveness. I then put forward such a framework, equating a climate change act’s effectiveness with its ability to exert pressure on government, through focused accountability, to make policy decisions expected to reduce GHG emissions or to refrain from regressive decisions. I apply this evaluative framework to the CCA, concluding, primarily through an examination of the case law, that the CCA is ineffective: it motivates (though only rarely) the generation of policy “commitments” but does little to ensure that those commitments are implemented and has no substantive influence on policy decisions otherwise. I conclude that these weaknesses largely flow from the legislative approach underpinning climate change acts; an approach based in emissions targets. This conclusion informs my development of an alternative legislative model incorporating meaningful implementation duties and mechanisms to bring accountability to other policy decisions and generating a more authentic picture of overall policy progress. I conclude by imagining what a law based on this approach might look like in substance.