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University News | 2.1.2022

The Legal Landscape for Climate Change

Jody freeman on the possibilities for federal action.

Cox professor of law Jody Freeman spoke recently about climate change and the law Art courtesy of the Harvard Office of the Vice Provost for Advances in Learning

What is the U.S. legal landscape for addressing climate change? Cox professor of law Jody Freeman provided an overview of the dynamics among the three branches of federal government during a January 31 Zoom talk convened by the Office of the Vice Provost for Advances in Learning. What she had to say about the Supreme Court was eye-opening.

Freeman, a former counselor for energy and climate change in the Obama administration from 2009 to 2010, and now an independent director of fossil fuel producer ConocoPhillips, began with background: the Biden administration’s policy challenges, the deadlock in Congress, and the role the courts play.

Regulating Three Major Sources of Greenhouse Gases

The recent history of executive-branch climate actions, she recounted, saw the Trump administration freezing, rolling back, or rescinding “every major Obama administration climate effort, whether it was regulating carbon emissions from the power sector,…trying to control emissions from the oil and gas industry, [or]…withdrawing from the international climate agreement known as the Paris accord.”

• Transportation . The Biden administration in turn has sought to halt the changes Trump had initiated, by asking the courts to hold the regulations Trump promulgated in abeyance. Acting through the Environmental Protection Agency (EPA), which “has the legal authority to take these steps under the Clean Air Act of 1972,” the White House has since early 2021 developed a new round of standards for the transportation sector, made final in December; they would control carbon dioxide emissions from cars and trucks from 2023 to 2026 more stringently than the standards put forth under the Trump EPA. (Rules for 2027 and beyond are being developed now.) 

“All of those standards are really designed to ramp up over time and drive electrification,” said Freeman—and aimed to fulfill President Biden’s pledge that “half of the new cars sold in 2030 will be zero-emission vehicles. And the auto industry, including GM and Ford and others, have lined up to say they have an aspiration or goal to make sure that at least half of all new cars” and 40 to 50 percent of new trucks sold in 2030 or 2035 will be electric or zero-emission. That, she said, is “a big promise.”

• Methane . In a parallel effort, she continued, the EPA has proposed a set of standards for all oil and gas facilities to control methane leaks. Methane is a much more potent, but much shorter-lived, greenhouse gas than carbon dioxide, making it “the single fastest, most effective opportunity we have to reduce the impact of climate change.” The standards are designed to require detection, monitoring, and control of methane from existing and new oil and natural-gas operations, including production, processing, transmission, “and the rest.” After transportation, “that is the second important sector that the Biden team has identified as a big contributor to greenhouse gases.”

• Electric power . Finally, the “third leg” of the major Biden climate rules, in development now, are new standards for the electric-power industry—the area, Freeman explained, in which the courts have become involved. The Trump administration had advanced “a very weak rule” regulating the power sector that adopted “a narrow…theory of the government’s authority.” That approach, and its premise that regulation could only be applied to effect marginal changes at individual power plants, rather than covering the sector as a whole, “wound up in the courts,” said Freeman, “and the D.C. Circuit Court of Appeals struck down the Trump rule, which said that the government couldn’t do much to regulate the power sector.”

Although the rule no longer exists, Freeman explained, “the Supreme Court did grant review [of the D.C. Circuit Court of Appeals’ decision] and said it would hear the case,”—perhaps to use it “as an opportunity to send a message to the Environmental Protection Agency not to get out over its skis with the next regulation.”

Even as the Biden administration works to develop its own rule to regulate the power sector, it finds itself in the peculiar position of having to go to court to defend the Trump-era approach—“a complicated legal situation,” as she characterized it. 

Congressional Inaction and Limits on Executive Power

Stepping back for a moment from the particulars of the Biden approach, Freeman asked rhetorically, “Why is the President using his executive power, with executive-branch agencies like EPA, to put in place a climate plan?” The answer, she said, is that “Congress has largely failed to adopt an approach to climate change.” The recently enacted, trillion-dollar infrastructure bill, she said, could have included a grant system for clean energy that would have awarded money to the power sector if it lowered greenhouse-gas emissions year over year—and penalized it if it did not, “but that never made it through Congress.” And although Congress has allocated funds to support electric vehicles and charging infrastructure, a step she called “very positive,” there has been no major legislation to drive greenhouse-gas emissions down.

Given that “Congress isn’t adopting climate policy,” the President is using the executive branch, through “laws on the books…to make as much progress as possible.” At the Glasgow climate meeting last November—the annual conference of the parties to the Paris Agreement—the administration pledged to reach “a 50 to 52 percent reduction in U.S. net economy-wide greenhouse-gas emissions by 2030, which is a very significant pledge.  Delivering  on that,” Freeman noted, “depends now on these major regulations” governing transportation, oil and gas production, and power generation.

Freeman said she considers these developments to be positive steps, but that the rules would need to be made final during the Biden presidency and then built upon in a second term or by a successor president in order to meet such ambitious goals. Doing so will be difficult without congressional action, she noted.

The Supreme Court’s Blocking Role

Notably, the Supreme Court might play a major role in determining the success or failure of U.S climate-change policy. “As you know, there are now six justices appointed by Republicans who appear to be poised to undo precedents,” said Freeman. “They’re not being shy about willingness to reject government regulation when they think that the government has overreached,” she explained, citing their rejection of the Occupational Safety and Health Administration’s vaccine mandate for businesses. She said the governing statute is broadly worded and gives OSHA “quite capacious power to set workplace safety standards” and to protect workplaces from new hazards. The fact that the Court struck that down is “a signal” that the Court has reservations about broad government regulation. 

With respect to climate change, “We’re waiting to see what the Supreme Court may do to clip the wings of the Environmental Protection Agency” as part of its review of the Trump-era power-sector rule: “There’s some concern that the Court’s reading of the Clean Air Act” will constrain the agency’s rulemaking authority.

Freeman described the stakes as enormous: “If that were to happen, we’d be left in a world, in the United States anyway, where the Congress is largely inactive on climate change” and the executive branch might be “severely constrained by a Supreme Court skeptical of regulatory power.” (For background on the long-term fallout of climate change, see the  Harvard Magazine  feature article, “ Controlling the Global Thermostat .”)

“The starkest way to put it,” she continued, “is that we could find ourselves in a place where climate policy is not being made by the United States Congress, nor…by the elected president carrying out delegated power under laws long on the books, but…by six Supreme Court justices who are unaccountable and unelected.” If such a scenario were to transpire, Freeman put it delicately, “I think that would be an uncomfortable place for climate policy.”

Were that to occur, the Supreme Court’s limitation on U.S. action would also adversely affect international efforts to address climate change, Freeman said: U.S. leadership on climate is crucial to the success of the coalition of both large and rapidly growing economies around the world. 

But encouragingly, Freeman concluded, there is broad domestic industry support for climate regulation. Automobile manufacturers have “largely lined up in favor of the new car standards,” she said, and “quite a considerable section of the oil and gas industry has been supportive of comprehensive methane regulation.” In addition, “a significant swath of the electric power industry wants the EPA to regulate their sector; they don’t want the court to scuttle the EPA’s authority” to regulate them. “My hope” she concluded, is that “the Biden administration succeeds…, the court does not severely constrain the EPA’s authority, and that success will breed success.”

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• 16 April 2024

Do climate lawsuits lead to action? Researchers assess their impact

• Carissa Wong

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More people are filing lawsuits against governments and corporations for not doing enough to combat climate change. Credit: Suleiman Mbatiah/AFP via Getty

Climate litigation is in the spotlight again after a landmark decision last week. The top European human-rights court deemed that the Swiss government was violating its citizens’ human rights through its lack of climate action. The case, brought by more than 2,000 older women , is one of more than 2,300 climate lawsuits that have been filed against companies and governments around the world (see ‘Climate cases soar’).

But does legal action relating to climate change make a difference to nations’ and corporations’ actions? Litigation is spurring on governments and companies to ramp up climate measures, say researchers.

‘Truly historic’: How science helped kids win a landmark climate trial

“There are a number of notable climate wins in court that have led to action by governments,” says Lucy Maxwell, a human-rights lawyer and co-director of the Climate Litigation Network, a non-profit organization in London.

Nature explores whether lawsuits are making a difference in the fight against global warming.

What have climate court cases achieved?

One pivotal case that spurred on change was brought against the Dutch government in 2013, by the Urgenda Foundation, an environmental group based in Zaandam, the Netherlands, along with some 900 Dutch citizens. The court ordered the government to reduce the country’s greenhouse-gas emissions by at least 25% by 2020, compared with 1990 levels, a target that the government met. As a result, in 2021, the government announced an investment of €6.8 billion (US$7.2 billion) toward climate measures. It also passed a law to phase out the use of coal-fired power by 2030 and, as pledged, closed a coal-production plant by 2020, says Maxwell.

Source: Grantham Research Institute/Sabin Center for Climate Change Law

In 2020, young environmental activists in Germany, backed by organizations such as Greenpeace, won a case arguing that the German government’s target of reducing greenhouse-gas emissions by 55% by 2030 compared with 1990 levels was insufficient to limit global temperature rise to “well below 2 ºC”, the goal of the 2015 Paris climate agreement. As a result, the government strengthened its emissions-reduction target to a 65% cut by 2030, and set a goal to reduce emissions by 88% by 2040. It also brought forward a target to reach ‘climate neutrality’ — ensuring that greenhouse-gas emissions are equal to or less than the emissions absorbed from the atmosphere by natural processes — by 2045 instead of 2050. “In the Netherlands and Germany, action was taken immediately after court orders,” says Maxwell.

In its 2022 report , the Intergovernmental Panel on Climate Change acknowledged for the first time that climate litigation can cause an “increase in a country’s overall ambition to tackle climate change”.

“That was a big moment for climate litigation, because it did really show how it can impact states’ ambition,” says Maria Antonia Tigre, director of the Sabin Center for Climate Change Law at Columbia University in New York City.

What about cases that fail?

Cases that fail in court can be beneficial, says Joana Setzer at the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science.

In a 2015 case called Juliana v. United States , a group of young people sued the US government for not doing enough to slow down climate change, which they said violated their constitutional right to life and liberty. “This is a case that has faced many legal hurdles, that didn’t result in the court mandating policy change. But it has raised public awareness of climate issues and helped other cases,” says Setzer.

One lawsuit that benefited from the Juliana case was won last year by young people in Montana , says Setzer. The court ruled that the state was violating the plaintiffs’ right to a “clean and healthful environment”, by permitting fossil-fuel development without considering its effects on the climate. The ruling means that the state must consider climate change when approving or renewing fossil-fuel projects.

What happens when people sue corporations?

In a working paper , Setzer and her colleagues found that climate litigation against corporations can dent the firms’ share prices. The researchers analysed 108 climate lawsuits filed between 2005 to 2021 against public US and European corporations. They found that case filings and court judgments against big fossil-fuel firms, such as Shell and BP, saw immediate drops in the companies’ overall valuations and share prices. “We find that, especially after 2019, there is a more significant drop in share prices,” says Setzer. “This sends a strong message to investors, and to the companies themselves, that there is a reputational damage that can result from this litigation,” she says.

In an analysis of 120 climate cases, published on 17 April by the Grantham Research Institute, Setzer’s team found that climate litigation can curb greenwashing in companies’ advertisements — this includes making misleading statements about how climate-friendly certain products are, or disinformation about the effects of climate change. “With litigation being brought, companies are definitely communicating differently and being more cautious,” she says.

What’s coming next in climate litigation?

Maxwell thinks that people will bring more lawsuits that demand compensation from governments and companies for loss and damage caused by climate change. And more cases will be focused on climate adaptation — suing governments for not doing enough to prepare for and adjust to the effects of climate change, she says. In an ongoing case from 2015, Peruvian farmer Saúl Luciano Lliuya argued that RWE, Germany’s largest electricity producer, should contribute to the cost of protecting his hometown from floods caused by a melting glacier. He argued that planet-heating greenhouse gases emitted by RWE increase the risk of flooding.

More cases will be challenging an over-reliance by governments on carbon capture and storage (CCS) technologies — which remove carbon dioxide from the atmosphere and store it underground — in reaching emissions targets, says Maxwell. CCS technologies have not yet proved to work at a large scale. For instance, in February, researchers criticized the European Union for relying too much on CCS in its plans to cut greenhouse-gas emissions by 90% by 2040 compared with 1990 levels.

“There is a tendency now for companies and governments to say, we’ll use carbon capture, we’ll find some technology,” says Setzer. “In the courts, we’ll start seeing to what extent you can count on the future technologies, to what extent you really have to start acting now.”

What about lower-income countries?

There will also be more climate cases filed in the global south, which generally receive less attention than those in the global north, says Antonia Tigre. “There is more funding now being channelled to the global south for bringing these types of cases,” she says. This month, India’s supreme court ruled that people have a fundamental right to be free from the negative effects of climate change.

Last week’s Swiss success demonstrates that people can hold polluters to account through lawsuits, say researchers. “Litigation allows stakeholders who often don't get a seat at the table to be involved in pushing for further action,” says Antonia Tigre.

Maxwell thinks that the judgment will influence lawsuits worldwide. “It sends a very clear message to governments,” she says. “To comply with their human-rights obligations, countries need to have science-based, rapid, ambitious climate action.”

doi: https://doi.org/10.1038/d41586-024-01081-w

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07/30/2020 - Corporate Climate Disclosures

Climate Change is Changing the Practice of Law

by Hana Vizcarra

Staff Attorney Hana Vizcarra was a panelist on the CLE Showcase panel “Climate Change and the Legal Profession: Beyond ‘Environmental Law’” held on July 30, 2020 at the American Bar Association’s 2020 Annual Meeting . This post is based on remarks she made as part of that panel. If you are an ABA Member you can attend the 2020 Virtual Annual Meeting for free and watch this and other panels on demand.

In 2019, the American Bar Association (ABA) House of Delegates adopted a resolution on climate change . The resolution urges government and the private sector to recognize their obligation to address climate action and to take action, urges Congress to enact climate change legislation and the US government to engage in international efforts to address climate change. The ABA also called on lawyers to take on climate change-related pro bono activities and to advise their clients of the risks and opportunities of climate change.

As part of its commitment to this resolution, the ABA included a panel on climate change and the practice of law at its 2020 Annual Meeting. The CLE Showcase event was moderated by Roger Martella of GE and panelists included myself, Prof. Michael Gerrard of Columbia Law, and Hilary Tompkins of Hogan Lovells. We discussed how climate change is impacting the practice of law, and not just environmental law. This post summarizes some of my remarks as part of this event.

Environmental law is interdisciplinary. One of the reasons I enjoy practicing environmental law is that it touches every part of the economy, every industry, and engages the full spectrum of lawyering skills. We work on transactions, litigate, advise on compliance and regulation, etc. We are not simply the keepers of the secrets of the Clean Water Act, Clean Air Act, NEPA, and other core environmental statutes; we are also administrative law attorneys, comfortable with torts, familiar with contract and land use law, and regularly encounter constitutional law questions.

And yet, the number of practice areas that intersect with environmental law only seem to grow, particularly when it comes to climate change. Try as we might, environmental lawyers can’t be experts in all aspects of these other areas of law. Other practitioners need to be familiar enough to recognize when and how climate change-related issues impact their work.

Climate change will affect your practice. Climate change is already impacting how we live our lives and how companies do business. And when that happens, it impacts the law.

Corporate disclosure practices are changing in the face of persistent efforts by shareholders and stakeholders to encourage more transparency on climate change risks and opportunities. As shareholders internalize the possibility of climate change impacts on the companies they invest in, they recognize climate-related information as crucial to their decisionmaking. Concern about climate change and desire for more insight into corporate strategy on the topic is no longer limited to values investors trying to get companies to do good in the world. This information now forms part of the total mix of information that investors want to consider in their analyses.

I don’t want to overstate the extent to which investors use climate-related information right now. This continues to be an evolving space but it is one that has changed rapidly in the last few years as shareholders become more knowledgeable on the issues, better understand the scope of information available to them, and have put resources towards figuring out how to integrate that information into their decisionmaking tools. Because of the malleable nature of the materiality standard in US securities law, investors’ increasing use of climate-related information can impact what the law sees as required disclosures. [1] Securities lawyers will be asked to consider these changes in investor demands and trends in corporate reporting.

Concern over climate change uncertainties goes beyond investors. It is changing how the whole financial sector evaluates its assets and what conditions are placed on companies to receive financing. Banks have announced new lending policies that restrict lending to certain types of extractive industries and are trying to better understand the scope of their own risks. Many financial institutions have shareholders pressuring them on their climate-related disclosure as well and there is increasing interest among bank regulators. The Task Force on Climate-Related Financial Disclosure recommendations released in 2017 included supplemental guidance for the financial sector about how financial entities should disclose climate risks and opportunities.

Financial regulators are already considering whether climate change poses systemic risks to the financial system. While US regulators are generally behind their European counterparts in grappling with how to address climate risks in their supervisory and regulatory capacities, they are not ignoring the issue. The CFTC is preparing a report right now on climate-related systemic risk to the financial sector for which it requested public comment . The Federal Reserve is also assessing these risks. US Federal Reserve Chair Jerome Powell said in January that the Fed has a role to play “to ensure that the financial system is resilient and robust against the risks of climate change” and is working to understand how to do so. Chairman Powell has also indicated a willingness to eventually join the Network of Central Banks and Supervisors for Greening the Financial System (NGSF) and has sent representatives to participate in NGFS meetings. The Federal Reserve Bank of San Francisco hosted a conference on climate change in 2019, commissioning a series of papers. The Executive Vice President of the Federal Reserve Bank of New York, Kevin Stiroh, delivered remarks on climate change and risk management in bank supervision at a March 4, 2020 event at Harvard Business School. Stiroh is also the co-chair of the recently established Task Force on Climate-Related Risk (TFCR) of the Basel Committee on Banking Supervision which released its first report in April. Financial regulators in the US are closely following efforts of central banks and regulators in other countries to develop stress testing and disclosure requirements.

While the energy sector gets much of the limelight when it comes to climate change impacts, many other industries are already recognizing physical and transition risks from climate change. Infrastructure development, real estate, and insurance are areas that already have had to adjust to very real climate-related impacts. Recent research calls into question the future of the 30-year mortgage in many areas of the country. The FEMA flood maps that insurers, developers, and local governments rely on for planning purposes and pricing risk don’t fully reflect expected climate risk. Some insurers and even some state governments have started to develop their own sea level rise and flooding data with more up-to-date climate science and projections.

These are just a few examples of how climate change is already impacting areas of law not strictly considered environmental.

Beyond independent financial regulators, the federal government is not currently working to integrate climate change risks into legal frameworks. The current administration instead has focused on preventing better integration of the collective scientific knowledge on climate change into federal regulatory structures. It has consistently worked to rollback existing environmental standards , with a particular emphasis on regulations designed to lessen the output of greenhouse gases. Many regulatory proposals in the last few years have incorporated legal interpretations designed to limit the federal government’s authority to regulate around climate change and environmental protections. In some instances, this administration has short circuited climate-conscious efforts in the private sector by rolling back regulations they have already complied with or voiced support for.

Even without new regulations, your area of practice will be impacted by climate change. As lawyers, we tend to focus most on new legislation and regulation. But lawyers need to be aware of how climate change is impacting their clients in other ways and how applicable legal standards may change even where new statutes or regulations have not materialized.

Companies you represent face changing risk exposures and financial outcomes. Many of our laws have legal standards that evolve as information comes to light such that courts will eventually see them differently even absent new regulation. For example, what courts consider material to an investor’s decisionmaking in securities law will shift as more investors incorporate climate change risk information into their ordinary course of business.

Climate change is already affecting a wide range of legal practices and its impacts on the law are only just beginning to be felt. In-house attorneys and outside counsel must have a grasp of how climate change will impact the businesses they work with, their supply chains, the contracts they draw up, their internal risk management and audit procedures, and board level governance.

When I was in private practice, I did not consider myself a “climate change attorney.” I was a typical environmental law practice attorney focused on individual client needs with little time to step back and consider broader trends that might eventually impact client outcomes. But each of us must start considering how broader trends related to climate change impacts the law we practice or we run the risk of these forces changing legal standards before we even notice.

As a trusted advisor, you are tasked with helping clients see these trends coming. You will need to help them understand the potential risks and liabilities associated with climate change—whether from physical impacts on their operations, changing expectations of shareholders and regulators, or evolving legal standards.

Climate change will affect your practice and environmental attorneys need your help in analyzing how it impacts your area of practice.

[1] Read more about how this is happening for climate change information in The Reasonable Investor and Climate-Related Information: Changing Expectations for Financial Disclosures , published in the February 2020 edition of the Environmental Law Reporter.

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Article Contents

1. introduction, 2. the european climate law and procedural climate governance, 3. medium- and long-term targets, 4. monitoring and evaluation, 5. climate policy integration, 6. scientific expert advice, 7. access to justice, 8. inclusiveness and public participation, 9. conclusions.

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The European Climate Law: Strengthening EU Procedural Climate Governance?

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Kati Kulovesi, Sebastian Oberthür, Harro van Asselt, Annalisa Savaresi, The European Climate Law: Strengthening EU Procedural Climate Governance?, Journal of Environmental Law , Volume 36, Issue 1, March 2024, Pages 23–42, https://doi.org/10.1093/jel/eqad034

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In 2021, the European Union (EU) adopted the so-called European Climate Law (ECL), enshrining in law the 2050 climate-neutrality objective and upgraded 2030 emission reduction target. The ECL bears the hallmarks of what we term ‘procedural climate governance’, which comprises the regulatory frameworks, instruments, institutions and processes that shape substantive climate policies and their implementation. This article identifies seven key functions of procedural climate governance—target-setting; planning; monitoring and evaluation; climate policy integration; scientific expert advice; access to justice; and public participation—and uses these for critically assessing the ECL. We argue that while the ECL has significantly strengthened important aspects of EU procedural climate governance, further reforms are needed for the EU to develop and implement the substantive policies towards a climate-neutral and climate-resilient economy and society and to bolster public support and ownership of the transition. The upcoming reviews of the ECL and the Governance Regulation provide a critical opportunity for strengthening procedural climate governance in the EU.

In April 2021, the European Union (EU) adopted a Regulation commonly known as the European Climate Law (ECL). 1 The ECL enshrines in law the goals for the EU to become climate neutral by 2050 and to reduce its net greenhouse gas (GHG) emissions by at least 55% from 1990 levels by 2030. The ECL—alongside the Regulation on the Governance of the Energy Union and Climate Action (Governance Regulation) 2 —establishes a regulatory framework for the implementation and further development of climate policy in the EU, with a view to achieving the Union’s mid- to long-term climate targets.

Like most national framework climate laws, the ECL bears the hallmarks of what we term ‘procedural climate governance’. This comprises the instruments, institutions and processes that shape substantive climate policies and their implementation. 3 Procedural climate governance consists of a range of elements, such as target-setting, planning and monitoring and evaluation. It also includes features related to the quality of climate governance, such as access to justice, inclusiveness and public participation, and independent scientific advice. Procedural climate governance therefore has the potential to strengthen the throughput legitimacy 4 of EU climate change law and help overcome what Fisher has criticised as the EU’s ‘linear’, output-oriented approach. 5 To the extent it is effective, procedural governance forms an essential part of a successful response to climate change by aligning governance structures with core features of the climate challenge, such as its long-term, dynamic, uncertain, complex and cross-sectoral nature. 6

Building on earlier work developing the concept of procedural climate governance, 7 this article identifies its seven key functions, and uses these as an analytical lens for critically assessing the ECL and its contribution to procedural climate governance in the EU. In doing so, the article seeks to improve understanding of the ‘largely uncharted legal territory’ of EU climate change law, 8 with a specific focus on the ECL, which—notwithstanding its importance as an overarching legal framework for the future development of EU climate change law—has thus far received limited scholarly attention. 9 Potential reasons for this limited scholarly attention to the ECL include its procedural focus, which adds a new dimension to EU climate change law and is possibly not yet fully understood by legal scholars. Our analysis focuses primarily on climate change mitigation governance, although the ECL also introduces elements of procedural climate governance for adaptation to climate change. 10

We start by discussing in Section 2 how and why the ECL—along with the Governance Regulation—constitutes the core of the EU’s legal framework for procedural climate governance. In Sections 3–8, we analyse the extent to which the ECL advances six functions of procedural climate governance, namely: target-setting (Section 3); monitoring and evaluation (Section 4); climate policy integration (Section 5); scientific expert advice (Section 6); access to justice (Section 7); and inclusiveness and public participation (Section 8) and conclusion (Section 9).

2.1 Procedural Climate Governance

As outlined above, the ECL develops the legal framework for what can be termed the EU’s procedural climate governance. The notion of procedural governance is related to the distinction between substantive and procedural policy measures. Whereas substantive climate policy instruments, such as the EU emissions trading system, aim to directly mitigate GHG emissions, procedural climate governance instead sets the overarching goals for substantive climate policy and puts in place the instruments, institutions and processes for planning, implementing, enforcing and adjusting substantive climate policies. 11 Procedural climate governance is closely related to throughput legitimacy, which relates to the quality of governance, notably with respect to transparency and accountability, as well as inclusiveness and openness. 12 As Fisher has argued, ‘ensuring that the challenges of climate change are met’ requires shifting the traditional emphasis away from the EU’s input and output legitimacy towards its throughput legitimacy, including ‘a focus on how disruption is managed as fairly as possible, on how disputes are resolved, and on how consensus is built’. 13

The growing importance of procedural climate governance is underscored by the proliferation of national framework laws on climate change, especially in Europe. 14 Following the example of the 2008 UK Climate Change Act, 15 EU Member States with framework climate laws now include Austria, Bulgaria, Denmark, Finland, France, Germany, Ireland, Malta, the Netherlands, Spain and Sweden. 16 Such national framework climate laws commonly incorporate elements of procedural climate governance, making national climate targets legally binding through domestic law 17 and establishing governance procedures and institutional responsibilities relating to climate policy planning, monitoring and reporting. Many such laws also include provisions for scientific advisory bodies, as well as for public participation, transparency and accountability. 18

Here, we identify seven key functions of procedural climate governance. 19 First, medium- and long-term targets play an important role in guiding the development of substantive climate policies, offering direction over a longer period and improving legal certainty. 20 In addition, they can play a critical role in ensuring that the global carbon budget is distributed fairly between generations and countries. Second, medium- and long-term climate policy planning is crucial in view of the long-term perspective needed to effectively respond to the climate crisis. Its main functions relate to aligning substantive policies with climate targets and for engaging the public and scientific experts in policy instrument choice and design. 21 Increasingly, planning must also consider the need for a just transition and any adverse and unequal socioeconomic consequences of climate policies on individuals and communities. 22 Third, arrangements for monitoring and evaluation of implementation —providing for enforcement where needed—are key for enabling climate governance to take stock of progress and ensuring that substantive policies are delivered. Related to this function are legal mandates and procedures for modifying and re-aligning substantive climate policies with climate targets in case of insufficient progress. Fourth, the integration of climate objectives into other policy areas (i.e., climate policy integration ) is important in view of the cross-sectoral nature of the climate change challenge and the whole-of-government approach needed to respond to it. 23 Fifth, scientific expert advice is essential for an objective evaluation of substantive climate policy options and for assessing progress made in the light of changing scientific insights. Sixth, mechanisms for holding policymakers to account, including through judicial means and by providing for access to justice , are important for determining the adequacy of climate policy goals and the effective implementation of climate policies. 24 Lastly, inclusiveness and meaningful public participation can be considered crucial for supporting the legitimacy and acceptance of climate policy. 25 This function also covers access to information and openness of the relevant policy processes as important aspects of transparency. 26

2.2 The ECL and the Governance Regulation as the Legal Framework for EU Procedural Climate Governance

To assess the contribution of the ECL to procedural climate governance in the EU, it is crucial to understand how the ECL and the Governance Regulation complement each other. To start with, the ECL is based on Article 192(1) of the Treaty on the Functioning of the European Union (TFEU) and solely addresses EU climate policy, whereas the Governance Regulation is based on both Articles 192(1) and 194(2) and addresses both climate and energy policy. Different competencies have been used because the Governance Regulation is closely related to the EU initiative known as the Energy Union, 27 and its key aims include ensuring the implementation of both the EU’s 2030 climate and energy targets. 28 The ECL, in turn, focuses on EU climate policy and is therefore based on environmental competence only.

Furthermore, the ECL primarily addresses the EU level and introduces obligations mainly for the Commission. By contrast, the Governance Regulation imposes several obligations directly on EU Member States, while also containing obligations for the Commission, especially to review and ensure adequate ambition and progress at the Member State and EU levels. Regarding the functions of procedural climate governance introduced in Section 2.1, the Governance Regulation focuses on planning, whereas the ECL mainly addresses EU climate targets, climate policy integration and scientific expert advice. The two instruments furthermore address different aspects of monitoring and evaluation, as well as inclusiveness and public participation, while neither addresses access to justice.

Having been described as an ‘umbrella regulation’ establishing a common governance system for EU climate and energy policy, 29 the Governance Regulation covers three of the functions of procedural climate governance. 30 On planning, it specifically requires EU Member States to prepare mid-term National Energy and Climate Plans (NECPs) every 10 years, and to update these every five years. 31 The current NECPs detail how each Member State intends to achieve its 2030 climate and energy targets and are being revised and updated in 2023/2024. Every 10 years, Member States must also prepare Long-Term Strategies (LTSs) covering at least the next 30 years. 32 In addition to various monitoring and reporting obligations for the Commission and Member States related to the EU’s internal climate and energy targets, the Governance Regulation addresses monitoring and evaluation by incorporating and amending the earlier Monitoring Mechanism Regulation 33 to ensure the EU’s compliance with the reporting obligations under the Paris Agreement. 34 Importantly, Member States must submit integrated national energy and climate progress reports (biennial progress reports), starting from 2023 and every two years thereafter. 35 In addition to mandating the Commission to review NECPs and issue related guidance to Member States, the Governance Regulation prescribes action to be taken by the Commission in response to insufficient ambition and progress by individual Member States or collectively. 36 The Governance Regulation also seeks to enhance inclusiveness and public participation at the Member State level. 37

As this article focuses on the ECL, the following sections analyse those five functions of procedural climate governance that the ECL either addresses exclusively (target-setting, climate policy integration, scientific expert advice) or in tandem with the Governance Regulation (monitoring and evaluation, inclusiveness and public participation). While the focus will be on the ECL, aspects of the Governance Regulation will, where relevant, also be discussed for a fuller understanding of the EU’s legal framework for procedural climate governance. Since planning is primarily addressed in the Governance Regulation, but not in the ECL, this function of procedural climate governance is not addressed further in this article. We also analyse access to justice, which is not covered by either the ECL or the Governance Regulation but is an important element of procedural climate governance (Section 7).

Target-setting is a key feature of procedural climate governance. Arguably, enshrining climate targets in legislation not only strengthens their credibility but it also offers some certainty and long-term perspective to industry and investors. 38 The ECL includes the EU’s 2050 climate-neutrality objective, an upgraded EU net emission reduction target for 2030, and a process for defining both the EU’s 2040 climate target and an indicative GHG emissions budget for 2030–2050.

3.1 Climate Neutrality by 2050

One of the key elements of the ECL is ‘a binding objective of climate neutrality in the Union by 2050’. 39 More concretely, GHG emissions and removals ‘shall be balanced within the Union at the latest by 2050, thus reducing emissions to net zero by that date’. 40 The target covers all GHG emissions and removals by sinks. In addition, the EU ‘shall aim to have negative emissions’ after 2050. 41

The ECL represents significant progress for procedural climate governance as the first legal instrument with a binding climate-neutrality objective for one of the world’s largest GHG emitters. The 2050 climate-neutrality objective might also align with the global net-zero goal in Article 4(1) of the Paris Agreement, depending, however, on how this somewhat opaque provision is interpreted, 42 including with respect to the highly contentious question of burden-sharing between countries.

It is less clear whether the EU’s 2050 climate-neutrality objective aligns with the collective 1.5/2°C temperature goal in Article 2(1)(a) of the Paris Agreement. While the 1.5°C goal is aspirational, it forms the current benchmark for countries’ mitigation efforts, 43 and the reference point for defining countries’ equitable share of the remaining global carbon budget. Accordingly, recent advice by the European Scientific Advisory Board on Climate Change (ESABCC; see Section 6)—mandated by the ECL—suggests that the EU’s fair share of the remaining global carbon budget for the 1.5°C goal from the start of 2020 based on an equal per capita allocation of emissions would amount to 20–25 gigatonnes of carbon dioxide equivalent (Gt CO 2 -eq.). 44 However, the Advisory Board adds that ‘[d]ividing the same budget using approaches informed by other ethical principles (such as the ability to pay or historical emissions) produces estimates of the EU share, which in some cases suggest that the EU has already used its fair share of the global carbon budget’. 45

Notably, the ECL defers to future decision-making to determine to what extent climate neutrality in the EU will be achieved through emission reductions, and how much it will rely on natural (e.g., forests, soil, wetlands) or artificial sinks (e.g., direct air capture or bioenergy with carbon capture and storage). This critical issue is to be covered by the Commission’s 2024 proposal for an indicative EU carbon budget for 2030–2050 (see Section 3.2). 46 The delay in resolving this issue is concerning given the rapid drop in the EU forest sink, which is projected to further decrease under current management practices. 47

During the law-making process, the European Parliament proposed including in the ECL an obligation for each Member State to achieve climate neutrality by 2050 at the latest. 48 However, this proposal was unsuccessful and the ECL does not, in its current form, specify how individual Member States are expected to contribute to the collective climate-neutrality objective. Instead, the ECL merely emphasises ‘the importance of promoting both fairness and solidarity among Member States and cost-effectiveness in achieving this objective’. 49 At the time of writing, 13 Member States had a self-defined climate-neutrality target enshrined in national legislation; 50 six had set such targets through policy documents; 51 and eight Member States had no national climate-neutrality targets. 52 The Commission has estimated that the Member States’ national targets in 2023 leave a gap of eight percent to net-zero emissions by 2050. 53 To close this important gap in the EU’s procedural climate governance framework, clarity is needed on contributions by individual Member States and/or the three key climate pillars of EU climate law, namely emissions trading, effort sharing, and land use, land-use change and forestry (LULUCF). This issue should be considered in the reviews of the ECL and the Governance Regulation due in the first half of 2024. 54

3.2 Intermediate Targets

The ECL increases the EU’s 2030 net GHG emission reduction target from at least 40% to at least 55% compared to 1990 levels. The Parliament had proposed including in the ECL a 60% emission reduction target for 2030. The final compromise 55 was a 2030 target equal to a net emission reduction of at least 57%. This would be achieved by limiting the contribution of net removals to the 55% target to 225 million tonnes of carbon dioxide equivalent, while aiming for actual net removals of 310 million tonnes. The EU has subsequently passed legislation aiming to increase net removals in the LULUCF sector from 280 to 310 million tonnes of carbon dioxide equivalent by 2030. 56 However, due to the inclusion of removals from the LULUCF sector, the EU’s actual emission reduction target for 2030 amounts to only 52.8%, 57 so that the EU’s revised 2030 target relies more on the LULUCF sector than its initial 2030 target.

Non-governmental organisations (NGOs) and researchers have criticised the EU’s strengthened 2030 target enshrined in the ECL for being insufficient. The NGO Climate Action Tracker suggests that the EU’s mitigation target for 2030 needs substantial improvement to be consistent with limiting warming to 1.5°C. 58 Gheuens and Oberthür argue that an EU target between 60–70% would have been ‘an ideal range’. 59 Similarly, a report by Climate Analytics – one of the organisations behind Climate Action Tracker – suggests that the EU mitigation target can ‘feasibly’ be increased to 61–73% below 1990 levels by 2030, excluding LULUCF. 60

From the perspective of international fairness, the EU would arguably need to do even more. As another Climate Analytics report claims, the EU’s target ‘would result in warming between 2 and 3°C (with a 66% probability) by 2100 if all countries were to set targets of an equivalent fair share level of mitigation ambition’. 61 Following this logic, they posit that the EU should achieve emission reductions of at least 93% below 1990 levels (again, excluding LULUCF) by 2030. 62 Another study on ‘fair shares’ suggests that the EU’s (and other developed states’) emissions should be net zero or net-negative by 2030. 63 Hence, the EU’s strengthened 2030 target as enshrined in the ECL is an important, yet still insufficient step towards an internationally and intergenerationally fair implementation of the Paris Agreement.

The ECL also outlines the process for setting the EU’s 2040 target. To this end, the Commission is required to prepare a proposal to amend the ECL within six months after the first global stocktake under the Paris Agreement, 64 which concluded at the end of 2023. 65 When tabling this proposal, the Commission is required to specify, in a separate report, an indicative EU GHG budget for 2030–2050, as well as the related methodology. 66 In making its proposal, the Commission has to take a wide range of considerations into account, including not only familiar criteria such as environmental effectiveness and cost-effectiveness, but also broader considerations, such as costs of inaction and the ‘need to ensure a just and socially fair transition for all’. 67 At the time of writing, the Commission is expected to release a communication with options for the 2040 target in early 2024. As European Parliament elections are due in June 2024, and a new Commission would take over soon after, the actual legislative proposal would likely be tabled only after the new Commission has assumed office. 68

Carbon budgets have been described as a useful tool to gauge the consistency of climate targets with global temperature goals. 69 The EU’s indicative carbon budget is expected to help evaluate whether the ECL targets represent a fair and equitable contribution to the implementation of the Paris Agreement and the 1.5°C goal. After ‘considering multiple dimensions of fairness and feasibility’, the ESABCC suggested an emission reduction of 90–95% from 1990 levels by 2040 and an EU GHG emission budget of 11 to 14 Gt CO 2 -eq. 70

It can be questioned whether the ECL’s current lack of a clear emission trajectory from 2030 to 2050 is consistent with the principle of intergenerational equity. In this respect, the ECL bears similarities with the first German Climate Change Act, which was declared unconstitutional precisely because it did not clearly outline steps towards Germany’s 2050 carbon-neutrality goal beyond 2030. 71 According to the German Constitutional Court, one generation ‘must not be allowed to consume large portions of the [GHG] budget while bearing a relatively minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom’. 72 The ECL, however, does not list either international or intergenerational equity among the issues that the Commission must take into account when proposing the EU’s 2040 target and indicative carbon budget. 73 Nevertheless, the ESABCC’s consideration of ‘multiple dimensions of fairness and feasibility’ shows that such considerations can and should be taken into account in the target-setting process. 74

Provisions on monitoring and evaluation of implementation of substantive climate policies, and legal requirements for their enforcement and/or adjustment in cases of insufficient progress, are crucial features of procedural climate governance. Ultimately, the role of such provisions is to ensure that climate policies deliver, and that climate targets are met. Otherwise, governments could be tempted to prioritise short-term interests and delay difficult political decisions on concrete climate policies needed to achieve climate targets. 75 As noted in Section 2, the Governance Regulation includes provisions on monitoring and reporting, as well as on action to be taken by the Commission in case of insufficient progress towards the EU’s 2030 climate and energy targets. The ECL introduces additional processes for the Commission to track progress towards the ECL objectives and to respond to lack of progress. These new processes include assessing the Member States’ collective progress towards the ECL’s 2050 climate-neutrality and adaptation objectives as well as the consistency of EU measures with these objectives. The Commission must also assess Member States’ national measures in light of the ECL objectives.

4.1 Assessing EU-Level Measures

The Commission must regularly assess Member States’ collective progress towards the ECL’s objectives, 76 as well as the consistency of EU measures with these objectives. 77 The first such assessments were presented in the autumn of 2023, with further rounds due every five years thereafter. 78 The ECL progress assessments are linked with, and complement, the relevant annual assessments of progress towards the 2030 climate and energy targets under the Governance Regulation, and the conclusions of the collective progress assessment will be published together with the State of the Energy Union report that the Commission must prepare under the Governance Regulation. 79

While these progress and consistency assessments promise added value, a shortcoming in the ECL is that it does not spell out crucial details, such as the indicators and methodology to be used by the Commission in these assessments, the scope and focus of the consistency assessment, and the role of the ESABCC (see Section 6). 80 Indeed, the Commission’s first Climate Action Progress Report of October 2023 also identifies the need for more detailed monitoring ‘to better highlight areas where progress is lacking or more action is needed’. 81

If the Commission concludes that insufficient progress towards the ECL’s objectives has been made, or that Union measures are inconsistent with the ECL objectives, it must ‘take the necessary measures in accordance with the Treaties’. 82 In practice, this could mean proposing new measures. However, neither the meaning of ‘necessary measures’ nor the threshold for the Commission to propose additional measures has been specified in the ECL. In light of this, as detailed in Section 7, a shortcoming in the ECL is that it does not include specific accountability mechanisms – such as the possibility to seek judicial review – to challenge the conclusions from the Commission’s progress and consistency assessments and/or the responses taken to address inadequate progress or inconsistency.

4.2 Assessing Member States’ National Measures

By 30 September 2023, and every five years thereafter, the Commission must also assess the consistency of Member States’ national measures with the ECL’s climate-neutrality and adaptation objectives. The assessment will be based on NECPs, LTSs and biennial progress reports. 83

If the Commission finds a Member State’s measures to be inconsistent with either of the ECL’s two objectives, it may issue recommendations to the Member State. 84 However, the Commission must first give ‘due consideration’ to Member States’ collective progress towards the ECL goals (see Section 4.1). As discussed in Section 3.1, the ECL does not spell out individual Member States’ contributions to the climate-neutrality objective. In practice therefore, the Commission will need to give concrete meaning to the terms ‘fairness’, ‘solidarity among Member States’ and ‘cost-effectiveness’ in Article 2(2) of the ECL. This gap may also be addressed in the review of the ECL, although this review comes too late for the first assessment round.

Within six months of receiving the Commission’s recommendations, a Member State must let the Commission know how it intends to address these ‘in a spirit of solidarity between Member States and the Union and between Member States’. 85 The Member States’ biennial progress reports prepared under the Governance Regulation must also explain how they have addressed the Commission’s recommendations. 86 If a Member State decides not to address the recommendations or a substantial part thereof, it must provide its reasoning in the same report. 87

The ECL’s five-yearly consistency assessments of Member States’ measures are complementary to progress assessments under the Governance Regulation. The assessments under the Governance Regulation require the Commission to assess every two years each Member State’s progress towards the objectives set out in its NECP. 88 In case of insufficient progress, the Commission must issue recommendations to the Member State in question. 89 The findings of the first such assessment in 2023 are described below (Section 4.3).

Both the Governance Regulation and the ECL thus rely mainly on the Commission’s recommendations for promoting compliance. 90 Under the ECL, the Commission has discretion in issuing recommendations, whereas the Governance Regulation requires the Commission to do so whenever it finds a Member State making insufficient progress. The Commission’s recommendations to Member States have not been particularly effective in the context of the European Semester 91 —an annual process through which the EU coordinates and monitors budgetary, fiscal, economic and social policies and creates a space for discussing these between the EU institutions and Member States. 92 The same concern may be formulated regarding the effectiveness of the Commission recommendations under the ECL and Governance Regulation.

In assessing enforcement-related provisions in the ECL and Governance Regulation, it must be taken into account that additional means of judicial enforcement exist in EU law. The Commission may, for example, initiate infringement procedures against Member States breaching their EU law obligations, including those under the ECL and the Governance Regulation. Indeed, in September 2022, the Commission started infringement procedures against Bulgaria, Ireland, Poland and Romania for not complying with their obligation to submit LTSs under the Governance Regulation. The Commission may also initiate infringement action against Member States for lack of compliance with substantive climate policy obligations. In addition to enforcement action by the Commission, citizens may also seek to challenge inaction through EU or Member State courts, although this is subject to important limitations, as will be discussed in Section 7.

The possibility of infringement procedures under general EU law therefore complements in an important way the specific enforcement-related provisions in the ECL and Governance Regulation. However, recourse to infringement also has limitations: implementation of EU environmental law remains generally rather weak and enforcement action by the Commission has been described as too slow. 93

4.3 Implementing the Commission Assessments

The Commission’s assessments of EU and national measures’ progress on and consistency with the ECL objectives play a key role in ensuring that the ECL’s objectives are met. The details of these assessments, including their factual basis and indicators to be used to measure progress, are therefore crucial. The ECL contains a provision defining elements that are common to the various Commission assessments. While the ECL provides some guidance on the assessment of Member States’ collective progress and consistency of collective and individual Member States’ measures with the ECL targets, it leaves many details to be elaborated by the Commission. 94

The starting point for the Commission’s first and second climate-neutrality progress assessments, which are due by 2023 and 2028 respectively, is an ‘indicative linear trajectory’ linking the EU’s 2030, 2040 (once adopted) and 2050 climate targets. 95 From the next assessment (due by 2033) onwards, assessments must take a linear trajectory, taking the 2040 and 2050 targets as its starting and end points respectively. 96 The European Environment Agency (EEA) is to assist the Commission in preparing the assessments. 97 The ECL lists several information sources that the Commission must use as a basis for its assessments, including: information submitted and reported under the Governance Regulation; reports by the EEA, the ESABCC and the Commission’s Joint Research Centre; scientific information, including the latest reports by the Intergovernmental Panel on Climate Change; and supplementary information on environmentally sustainable investment by the EU or the Member States, such as that provided under the Taxonomy Regulation. 98

However, the ECL lacks important details on methodologies and indicators that could help ensure the quality of the Commission assessments, leading some commentators to call on the Commission to start a transparent process to develop the monitoring of progress. 99 The role of the newly created ESABCC in the assessments should also be considered and potentially strengthened (see Section 6). 100

In practice, the first Commission progress assessment published in October 2023 identified the need for both better monitoring and additional mitigation measures to cut around 1,600 million tonnes of CO 2 equivalent (or 34 percentage points) to achieve climate neutrality by 2050. 101 Concerning further action, the Commission emphasised its plans to publish in early 2024 a communication on the EU 2040 climate target, setting a path from 2030 to net-zero emissions in 2050. 102 This, according to the Commission, ‘will provide the information needed to ensure that measures and investments to implement the EU’s 2030 targets are also well aligned with the pathways to climate neutrality by 2050’ and ‘keep progress on track to climate neutrality’. 103

Climate policy integration is an important element of procedural climate governance. 104 Accordingly, all sectors and policy areas must be aligned with, and contribute to, the achievement of the climate-neutrality objective. Conceptually, the idea of climate policy integration is closely related to the whole-of-government approach, which includes the ’aspiration to achieve horizontal and vertical coordination’, ‘eliminate situations in which different policies undermine each other’ and create ‘synergies by bringing together different stakeholders in a particular policy area’. 105 For climate policy integration to take place, different public authorities must not work in siloes, but institutional mandates and processes must be created for considering different sectors and policy areas more holistically in light of the ECL’s objectives and targets. The ECL makes important advances in developing the EU’s procedural climate governance in this respect while leaving significant room for further improvement.

In particular, the ECL requires the Commission to assess whether any draft EU measures or legislative proposals, including budget proposals, are consistent with the climate-neutrality objective, the 2030 and 2040 climate targets, and the adaptation objective. 106 The Commission must then ‘endeavour’ to align all measures it proposes with the objectives of the ECL 107 and explain the reasons for any non-alignment. 108 The ECL thus creates an important mandate and procedural mechanism for strengthening the integration of climate considerations into all areas of EU law and policy. 109 The relevant sectors and policy areas include energy, industry, transport, agriculture, forestry, and buildings, but also finance, trade and general foreign policy. 110

The quinquennial consistency assessments of EU and national measures discussed in Section 4 also have potential for enhancing climate policy integration. Their potential depends on how the Commission will define the scope of its assessments, and especially on what policies and measures beyond climate and energy policy it will consider. The ECL’s requirement that any recommendations that the Commission may issue to Member States ‘shall be complementary to the latest country-specific recommendations issued in the context of the European Semester’ 111 provides a clear opening in this respect.

Overall, however, policy integration in the ECL falls short of requiring ‘principled priority’ for climate policy. 112 The Commission’s impact assessments will continue to be made public only at the stage when the measure or proposal in question is published. 113 A Parliament proposal to oblige the Commission in the ECL to make the impact assessment immediately and directly available to the public was rejected. 114 The public will have no opportunity to comment on the impact assessment before the Commission has finalised its proposal or measure. 115 Furthermore, the ECL lacks criteria for assessing the consistency or alignment of legislative proposals with the climate-neutrality and adaptation objectives. It provides no safeguards for preventing legislative or budgetary proposals from being inconsistent with the ECL objectives. 116 In this context, the ECL also fails to codify, let alone elaborate on, the European Green Deal’s pledge to ‘do no harm’ 117 or require maximising synergies between climate policy and other policy areas.

Various national framework climate laws establish scientific expert bodies to offer advice to policymakers. Such bodies are important for ensuring that scientific and expert knowledge inform climate policymaking and implementation. Depending on their mandate, these bodies can play different formal and informal roles, including those of watchdog, knowledge broker and convenor. 118 They arguably add ‘unique value’ 119 to climate governance by increasing ‘the transparency and legitimacy of policymaking, contributing to greater political and public support’. 120 At least some of these bodies have been ‘instrumental in providing the analytical basis for more ambitious climate action’. 121 At the same time, studies also suggest that there are limits to what these bodies can achieve, and warnings issued by an advisory body, e.g., that a country is not on course to meet its targets, may go unheeded. 122

The ECL establishes a climate expert advisory body, the European Scientific Advisory Board on Climate Change. 123 It also invites Member States to establish their own national climate advisory bodies. 124 The ESABCC is composed of 15 members chosen based on merit, including scientific excellence, with a view to covering ‘a broad range of relevant disciplines’. 125 There is a requirement for geographical and gender balance. 126 The members are appointed for a four-year term, which can be renewed once. 127 The Advisory Board members are independent of the Member States and of the EU institutions. 128 The ESABCC is supported by a secretariat hosted by the EEA, which has a budget to cover up to 14 staff, as well as €500,000 for other tasks. 129

The ESABCC’s mandate is broad and general. Among others, it is tasked with considering the latest scientific insights, and providing scientific advice and issuing reports on existing and proposed EU measures, climate targets and indicative GHG budgets, and their coherence with the objectives of the ECL and the Paris Agreement. 130 Its other tasks include identifying actions and opportunities to achieve the EU climate targets, raising awareness of climate change and its impacts, and stimulating dialogue and cooperation between scientific bodies within the Union. 131 The Advisory Board is mandated to set out its own work programme while consulting the Management Board of its host institution, the EEA. 132

The ESABCC has the potential to strengthen EU climate policy. Its independence from the EU institutions and the Member States enables it to provide impartial advice. Due to its general mandate, the Advisory Board can exercise discretion in identifying critical priorities. It has already provided advice to the Commission on the 2040 EU target and the 2030–2050 carbon budget, recommending a reduction of GHG emissions by 90–95% by 2040 (from 1990 levels) (see Section 3.2). 133 Its 2023 work programme further indicates that the Board plans to engage with a range of issues, such as mitigation options for agriculture, land use and forestry, and their links with adaptation to climate change. 134

However, the ESABCC’s role and mandate could be strengthened by identifying entry points in the EU climate policy process where the Advisory Board’s input would be required —in combination with an obligation to take its input into consideration. A comparative analysis of national advisory bodies points to the added value of a clear mandate, with specific roles and responsibilities. 135 For example, the UK Climate Change Committee’s specific tasks include advising the UK Government in the preparation of carbon budgets, and in both the UK and New Zealand there is a legal obligation for the government to respond to advice given by the respective advisory bodies. 136 By contrast, the ECL does not include an obligation for the Commission to respond to (or heed) the recommendations issued by the ESABCC. The ECL merely lists the Advisory Board’s latest reports among the materials that the Commission must consider when proposing the EU’s 2040 target and the 2030–2050 indicative carbon budget, conducting the five-yearly progress and consistency assessments, and reviewing the operation of the ECL following each global stocktake under the Paris Agreement. 137 Without a clear mandate to engage in critical aspects of the policy process, the realisation of the ESABCC’s potential to enhance the quality and ambition of EU climate policy largely depends on how the Advisory Board will define its agenda, and how its recommendations and advice will be received by EU policymakers. For these reasons, the ESABCC’s mandate is an issue that merits further consideration during the forthcoming review of the ECL. 138 The Commission’s five-yearly progress and consistency assessments under the ECL are obvious places where independent scientific input would seem beneficial, including an obligation to take this input into account. 139

Framework climate laws, at least in theory, can be used to hold governments to account for adopting sufficiently ambitious climate policies and their effective implementation. 140 However, evidence is emerging, including from the UK, 141 Ireland 142 and Finland, 143 that national climate framework laws are not necessarily being effectively implemented and may lack adequate accountability mechanisms. Against this backdrop, access to justice is a critical element of procedural climate governance and throughput legitimacy. As parties to the Aarhus Convention, 144 the EU and its Member States have committed to ensuring access to justice in environmental matters. In practice, however, citizens’ access to the EU courts remains constrained, 145 whereas access to Member States’ national courts varies significantly. 146

Litigation in support of stronger climate action (so-called ‘strategic’ climate litigation) has significantly increased across the EU in recent years. 147 Some EU Member States’ courts have delivered judgements granting the claims of applicants demanding more ambitious climate action. 148 The same surge of litigation has not happened before the courts of the EU, where the majority of climate law-based lawsuits have concerned the implementation of the Emissions Trading Directive. 149 Only few strategic lawsuits have been filed before the courts of the EU. 150 Some of the early cases— Carvalho 151 and Sabo 152 —were rejected at the admissibility stage, as the Court deemed that the applicants had no standing to challenge EU law measures of general application.

The 2021 revision of the so-called Aarhus Regulation 153 has bolstered the powers of NGOs and some individuals to request an ‘internal review’—a procedure enabling them to ask EU institutions to review their own decisions on environmental matters, and eventually bring a case before the Court of Justice of the EU. NGOs have recently relied on this procedure to request the EU courts to annul the decisions to include forest biomass in and list natural gas and nuclear energy as sustainable investment under, the Taxonomy Regulation. 154

The ECL could have further strengthened the hand of climate litigants, by including an explicit provision enabling citizens and other relevant stakeholders, such as NGOs, to question, for example, the findings of the Commission’s assessments of progress towards climate neutrality or its proposed EU-level action following such assessments (or the lack thereof). During the negotiations of the ECL, the NGO ClientEarth highlighted the need to ensure accountability of the EU institutions and the Member States, should they fail to meet the ECL targets and objectives. 155 It also proposed inserting a provision in the Governance Regulation giving citizens access to the courts of Member States to challenge the substantive or procedural legality of NECPs and LTSs. 156 The Parliament made a similar proposal during the trilogue negotiations. 157

A specific right to access justice on environmental matters already exists under EU law. 158 The inclusion of an explicit provision in the ECL would, however, have established a level playing field across the EU by providing NGOs and individuals standing to challenge the legality of NECPs and LTSs at the Member State level. Such an inclusion would have aligned with recent practice, 159 whereby the Commission has promoted a ‘sectoral’ approach to enhancing access to justice in environmental matters. 160

Proposals to include provisions on access to justice in the ECL were, however, rejected. 161 As a result, neither the ECL nor the Governance Regulation explicitly address the matter of access to justice and include provisions enabling citizens and other stakeholders to hold policymakers to account for the ambition and implementation of the ECL’s targets. This arguably leaves a significant gap in the EU’s legal framework for procedural climate governance and severely constrains the EU’s throughput legitimacy and the quality of its climate governance procedures.

Public participation and inclusiveness can foster societal acceptance of climate policies, thus helping address the contentiousness of the climate and energy transition. 162 They can also advance climate policy by enabling input by citizens and stakeholders, 163 raising awareness, strengthening political engagement and mobilising resources. 164 However, the ‘emergency’ mode of governance dominated by the executive, which has characterised the aftermath of the COVID-19 pandemic and of Russia’s war on Ukraine, has put public participation in the EU under strain. 165

Several pieces of EU environmental law already require public participation in decision-making, pursuant to the EU’s obligations under the Aarhus Convention. 166 At the EU level, the Commission routinely undertakes public consultations prior to legislative proposals and certain policy initiatives, often in the context of its formal assessment of the impact of those proposals and initiatives. 167 At the national level, Member States are required to inform and consult the public on the environmental implications of relevant projects (under the Environmental Impact Assessment Directive) 168 and public plans and programmes (under the Strategic Environmental Assessment Directive). 169 These general public participation requirements apply also to EU climate law- and policymaking.

Over the years, however, more specific forms of participation in climate action have been introduced. At the EU level, the Commission has launched the European Climate Pact, as a ‘movement of people’ promoting sustainability via climate ambassadors, pledges, ‘peer parliaments’ and dissemination of information. 170 At the national level, several EU Member States—including Finland, France, Germany and Ireland—have experimented with forms of citizen-centric input into climate policy development, via mechanisms of deliberative democracy, such as citizens’ assemblies. 171 Furthermore, the Governance Regulation requires Member States to ensure that ‘the public is given early and effective opportunities to participate’ in the preparation of NECPs and LTSs. 172 Member States are also required to create multilevel energy and climate dialogues that include a broad set of stakeholders, to discuss different scenarios for climate and energy policy. 173

Complementing these existing participatory mechanisms, the ECL modestly bolsters public participation in climate governance at the EU level. Specifically, it requires the Commission to facilitate ‘an inclusive and accessible process at all levels…with social partners, academia, the business community, citizens and civil society, for the exchange of best practice and to identify actions’ 174 to contribute to achieving the ECL’s climate-neutrality and adaptation objectives. Furthermore, the Commission ‘shall use all appropriate instruments, including the European Climate Pact, to engage citizens, social partners and stakeholders, and foster dialogue’. 175 It must furthermore engage with stakeholders who choose to prepare voluntary indicative sectoral roadmaps, including the ‘facilitation of dialogue at Union level, and the sharing of best practice among relevant stakeholders’. 176 Although the ECL thus pays lip service to public participation, these provisions are vague and lack concrete means to strengthen the inclusiveness and openness of climate policymaking.

Significant potential for further improvement and harmonisation exists. At the EU level, for example, public participation arrangements in various EU-level committees and initiatives, such as the InvestEU Advisory and Steering Boards and its Investment Committee, could be revised to provide for more systematic and balanced involvement of stakeholders. At the Member State level, public participation in climate policymaking has varied significantly and evidence suggests it can be more systematically developed, for instance by providing guidance for, or sharing, best practices. 177 In particular, experiments of deliberative democracy have been at best loosely connected to decision-making and can be deployed in a more targeted manner. 178

In this article, we have critically assessed the ECL’s contribution to EU climate governance through the lens of procedural climate governance. Focusing on the instruments, institutions and processes for making, implementing and developing substantive climate policies, procedural climate governance is arguably of crucial importance for the success of the EU’s transition towards climate neutrality. Specifically, procedural climate governance can strengthen the EU’s throughput legitimacy, thereby responding to criticism regarding the output-oriented focus of EU climate change law. 179 Our distinction of seven key functions of procedural climate governance provides a firm conceptual basis for the assessment, with potential beyond the case at hand.

Our findings are ambivalent. On the one hand, the ECL has advanced the EU’s procedural climate governance in several important respects. Perhaps most importantly, the ECL advances target-setting by making the EU’s 2050 and 2030 climate targets legally binding. By doing so, it provides direction for the further development of substantive climate law and policy in the EU and offers some degree of certainty to industry and investors. Moreover, the ECL defines the contours of the process for setting the EU’s 2040 climate target and developing an indicative EU carbon budget for 2030–2050. The requirements in the ECL for the Commission to consider issues such as the latest climate science (including advice from the ESABCC), the need for a just and fair transition, as well as the costs of inaction, offer an opportunity for strengthening the ambition and the fairness of the proposed interim 2040 target.

Beyond target-setting, the ECL especially advances procedural climate governance in the areas of monitoring and evaluation, climate policy integration and scientific expert advice. On monitoring and evaluation, the ECL offers new means for the Commission to ensure that EU measures and Member States’ actions align with the ECL objectives, especially through introducing five-yearly progress and consistency assessments. Progress on climate policy integration is especially made through an obligation for the Commission to assess and ensure, as much as possible, the consistency of new legislative and budget proposals with the climate-neutrality and adaptation objectives. These provisions advance a cross-sectoral approach to climate policy and can help improve coherence across different policy areas.

The creation of the European Scientific Advisory Board on Climate Change is an important step forward for ensuring that EU climate policy decision-making is informed by the latest scientific insights. The advice by the Advisory Board in June 2023 concerning the EU’s 2040 target and indicative 2030–2050 carbon budget illustrates the benefits of strengthening scientific input into the EU climate policy processes, including by drawing attention to the equity and fairness of the EU’s climate mitigation efforts. In comparison, the ECL’s provisions on public participation are notable but lack concreteness.

On the other hand, our analysis also shows that the ECL falls short in several respects. First, the ambition of the ECL’s climate targets remains problematic when viewed in light of the Paris Agreement’s long-term 1.5/2°C temperature goal, as well as from the perspective of both international and intergenerational fairness. Furthermore, the ECL leaves open key questions on the contribution of individual Member States to the EU’s climate-neutrality objective, and the respective roles of emission reductions and removals. There is an opportunity to address these concerns in the development of the 2040 target and the indicative carbon budget for 2030–2050. Unfortunately, the ECL does not list international and intergenerational equity as considerations that the Commission must take into account when making the related proposals. 180 However, we argue that the list of relevant considerations included in the ECL is sufficiently broad for the Commission to incorporate these dimensions in its proposals. The importance of their inclusion is reflected in that the ESABCC already took them into account when issuing its advice on the 2040 target.

The ECL also leaves significant room for further advancing other areas of procedural climate governance. As to monitoring and evaluation, clarity concerning the contribution by individual Member States to the climate-neutrality objective would much facilitate the Commission’s assessment of consistency of Member State measures with this objective. Likewise, clearer criteria for assessing the consistency of EU legislative and budgetary proposals with the ECL’s objectives could help enhance climate policy integration—as could a further codification of the no-harm principle and of the objective to maximise synergies between other policy areas and the climate objectives. This could also help prevent the Commission from making proposals that are not well aligned with the ECL. Regarding scientific expert advice, the potential of the ESABCC remains under-exploited, especially due to the lack of an explicit mandate to provide input into critical stages of the EU climate policy processes, such as the Commission’s progress and consistency assessments, and of a requirement for policymakers to take its advice into account. Moreover, much more remains to be done to bolster public participation in climate law- and policymaking at the EU and Member State levels, including through developing more systematically mechanisms of deliberative democracy in climate policy.

Finally, our analysis demonstrates that access to justice remains unaddressed in both the ECL and the Governance Regulation. Given the shortcomings in the enforcement of environmental law in general and climate law in particular, better avenues for access to justice could make an important contribution to holding EU and Member State policymakers accountable for complying with relevant obligations, including those contained in the ECL and the Governance Regulation.

Overall, while the ECL has significantly strengthened important functions of EU procedural climate governance, our analysis shows that the legal framework for procedural climate governance remains to be significantly upgraded. Such an upgrade is needed for the EU to have the processes, institutions and instruments in place to develop and implement the substantive policies towards a climate-neutral (and climate-resilient) economy and society and to bolster public support and ownership of the transition. The reviews of the ECL and the Governance Regulation, due to take place in 2024, provide a critical opportunity for doing so.

The article has received support from the 4iTraction ‘Innovation, Investment, Infrastructure and sector Integration: Transformative policies for a climate-neutral European Union’ under the European Union’s Horizon 2020 research and innovation programme under the grant agreement no. 101003884. The article has also received support from the Strategic Research Council of the Research Council of Finland under the project 2035Legitimacy (grant no. 335559).

Parliament and Council Regulation 2021/1119 of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’) [2021] OJ L243/1 (ECL).

Parliament and Council Regulation (EU) 2018/1999 of 11 December 2018 on the Governance of the Energy Union and Climate Action [2018] OJ L328/1 (‘Governance Regulation’).

Brendan Moore and others, ‘Transformative Procedural Climate Governance: Mechanisms, Functions and Assessment Criteria: Deliverable 5.1’ (4iTraction 2023), < https://www.ecologic.eu/sites/default/files/publication/2023/33007-Report-2023-D5-1-Transformative-procedural-climate-governance.pdf > accessed 18 December 2023.

Vivien Schmidt and Matthew Wood, ‘Conceptualizing Throughput Legitimacy: Procedural Mechanisms of Accountability, Transparency, Inclusiveness and Openness in EU Governance’ (2019) 97 Pub Admin 727.

Liz Fisher, ‘Challenges for the EU Climate Change Regime’ (2020) 21 German L J 5.

On the nature of climate change as a ‘super wicked’ problem, see Kelly Levin and others, ‘Overcoming the Tragedy of Super Wicked Problems: Constraining Our Future Selves to Ameliorate Global Climate Change’ (2012) 45 Pol’y Sciences 123.

Moore and others (n 3).

Marjan Peeters, ‘EU Climate Law: Largely Uncharted Legal Territory’ (2019) 9 Clim L 137.

The few academic publications on the ECL include, for example: Ana Cardoso and Carlos Abreu Amorim, ‘European Climate Law: Real Changes or Postponed Future?’ (2021) 7 Unio – EU L J 138; Beatriz Pérez de las Heras, ‘European Climate Law(s): Assessing the Legal Path to Climate Neutrality’ (2021) 21 Rom J Eur Aff 19; and Christina Tvarnø, ‘The New Era of Climate Law in Denmark and in the EU’ (2022) 28 EPL 101.

These include (1) a qualitative goal for the relevant EU institutions and Member States to ‘ensure continuous progress in enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change’; (2) a requirement for the Commission and Member States to adopt adaptation strategies; and (3) a requirement to ‘work towards better integration of adaptation to climate change in a consistent manner in all policy areas’; see ECL (n 1) art 5. In any case, most of the provisions analysed in this article cover both mitigation and adaptation. For an analysis of the ECL’s adaptation provisions, see Andreas Buser, ‘Towards a Climate Resilient European Society: Objectives and Principles of EU Climate Adaptation Law’, Berlin e-Working Papers on European Law Nr. 138 (2022) 5.

See also Azad Singh Bali and others, ‘Procedural Policy Tools in Theory and Practice’ (2021) 40 Pol’y & Society 295.

As defined in Schmidt and Wood (n 4) 727.

Fisher (n 5) 8.

See Matthias Duwe and Nicholas Evans, ‘Climate Laws in Europe: Good Practices in Net-Zero Management’ (Ecologic Institute 2020); Jennifer Huang, ‘Exploring Climate Framework Laws and the Future of Climate Action’ (2020) 38(2) Pace Envtl L Rev 285; Thomas L Muinzer (ed), The Emergence, Form and Nature of National Framework Climate Legislation (Hart 2020). The procedural turn in domestic climate governance also reflects the growing ‘proceduralisation’ of international climate change law. See generally Jutta Brunnée, Procedure and Substance in International Environmental Law (Brill 2020).

Sarah L Nash, Diarmuid Torney and Simon Matti, ‘Climate Change Acts: Origins, Dynamics, and Consequences’ (2021) 21 Clim Pol’y 1111, 1112.

Duwe and Evans (n 14) 10.

See Moore and others (n 3); Sebastian Oberthür and others, ‘Towards an EU Climate Governance Framework to Deliver on the European Green Deal’ (Brussels School of Governance 2023).

Matthias Duwe and Ralph Bodle, ‘Paris Compatible Climate Acts?’ in Muinzer (n 14) 43, 52. See also Chris Hilson, ‘Hitting the Target? Analysing the Use of Targets in Climate Law’ (2020) 32 JEL 195.

See also Orla Kelleher, ‘The Supreme Court of Ireland’s Decision in Friends of the Irish Environment v Government of Ireland (“Climate Case Ireland”)’, EJIL: Talk! (9 September 2020), < https://www.ejiltalk.org/the-supreme-court-of-irelands-decision-in-friends-of-the-irish-environment-v-government-of-ireland-climate-case-ireland/ > accessed 18 December 2023.

Vilja Johansson, ‘Just Transition as an Evolving Concept in International Climate Law’ (2023) 35 JEL 229.

See generally Camilla Adelle and Duncan Russel, ‘Climate Policy Integration: A Case of Déjà Vu?’ (2013) 23(1) Envtl Pol’y & Governance 1; Claire Dupont, Climate Policy Integration into EU Energy Policy: Progress and Prospects (Routledge 2016).

Ludwig Krämer, ‘Climate Change, Human Rights and Access to Justice’ (2019) 16 JEEPL 21; see also Moore and others (n 3); Oberthür and others (n 19).

See Odile Ammann and Audrey Boussat, ‘The Participation of Civil Society in European Union Environmental Law-Making Processes: A Critical Assessment of the European Commission Consultations in Connection with the European Climate Law’ (2023) 14 EJRR 235.

On challenges in the context of the ‘Fit for 55’ legislative package, see Päivi Leino-Sandberg, ‘Transparency and Trilogues: Real Legislative Work for Grown-Ups?’ (2023) 14 EJRR 271, 289–291.

European Council, ‘Conclusions’, EUCO 11/15 (20 March 2015) para 1.

Kati Kulovesi and Sebastian Oberthür, ‘Assessing the EU’s 2030 Climate and Energy Framework: Incremental Change towards Radical Transformation?’ (2020) 29 RECIEL 151, 153–154.

Sabine Schlacke and Michèle Knodt, ‘The Governance System of the European Energy Union and Climate Action’ (2019) 16 JEEPL (2019) 323, 326.

See generally Kulovesi and Oberthür (n 28).

Governance Regulation (n 2) art 3.

ibid art 15. The Commission is also mandated to adopt a Union-wide LTS, although curiously unlike Member States it is not required to adopt one every 10 years or update it every five years; see ibid art 15(2).

Parliament and Council Regulation (EU) No 525/2013 of 21 May 2013 on a mechanism for monitoring and reporting greenhouse gas emissions and for reporting other information at national and Union level relevant to climate change and repealing Decision No 280/2004/EC [2013] OJ L165/13.

Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740, art 13(7).

Governance Regulation (n 2) art 17.

ibid arts 30–32.

ibid arts 10–11; and ECL (n 1) art 9.

Hilson (n 20) 213–214. See also Diarmuid Torney and Roderic O’Gorman, ‘Adaptability versus Certainty in a Carbon Emissions Reduction Regime: An Assessment of the EU’s 2030 Climate and Energy Policy Framework’ (2020) 29 RECIEL 167.

ECL (n 1) art 1.

ibid art 2(1).

Lavanya Rajamani and Emmanuel Guérin, ’Central Concepts in the Paris Agreement and How They Evolved’ in Daniel Klein and others (eds), The Paris Agreement on Climate Change: Analysis and Commentary (OUP 2017) 74, 76.

ibid. See also UNFCCC, ‘Decision 1/CMA.3, The Glasgow Climate Pact’, UN Doc. FCCC/PA/CMA/2021/10/Add.1 (8 March 2022), para 21.

European Scientific Advisory Body on Climate Change (ESABCC), ‘Scientific Advice for the Determination of an EU-wide 2040 Climate Target and a Greenhouse Gas Budget for 2030-2050’ (15 June 2023) 14. The global carbon budget discussed was 500 Gt CO 2 -eq., giving a 50% chance of staying below 1.5°C.

ECL (n 1) art 4(4).

Anu Korosuo and others, ‘The Role of Forests in the EU Climate Policy: Are We on the Right Track?’ (2023) 18 Carbon Balance and Management 15.

European Parliament, ‘Report on the proposal for a regulation of the European Parliament and of the Council establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (ECL) (COM(2020)0080—C9-0077/2020—2020/0036(COD)) (22 September 2020).

ECL (n 1) art 2(2).

Oberthür and others (n 19) 17. Denmark, France, Greece, Hungary, Ireland, Latvia, Luxembourg, the Netherlands and Portugal have a 2050 target, Sweden and Germany a 2045 target, and Finland a 2035 target.

ibid (Austria, Italy, Lithuania, Malta, Slovakia and Slovenia).

ibid (Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Poland and Romania).

European Commission, ‘Progress Report 2023: Climate Action. Shifting Gears: Increasing the Pace of Progress towards a Green and Prosperous Future’ (European Commission 2023), < https://climate.ec.europa.eu/system/files/2023-11/com_2023_653_glossy_en_0.pdf > accessed 18 December 2023.

ECL (n 1) arts 11 and 12 (amending art 45 of the Governance Regulation).

European Parliament, ‘MEPs Reach Deal with Council on Obligation for the EU to be Climate Neutral by 2050’, Press Release (21 April 2021), < https://www.europarl.europa.eu/news/en/press-room/20210419IPR02302/meps-reach-deal-with-council-on-obligation-for-eu-to-be-climate-neutral-by-2050 > accessed 18 December 2023; European Parliament, ‘EU Climate Law: MEPs Confirm Deal on Climate Neutrality by 2050’, Press Release (24 June 2021) < https://www.europarl.europa.eu/news/en/press-room/20210621IPR06627/eu-climate-law-meps-confirm-deal-on-climate-neutrality-by-2050 > accessed 18 December 2023.

Parliament and Council Regulation (EU) 2023/839 amending Regulation (EU) 2018/841 as regards the scope, simplifying the reporting and compliance rules, and setting out the targets of the Member States for 2030, and Regulation (EU) 2018/1999 as regards improvement in monitoring, reporting, tracking of progress and review [2023] OJ 107/1, art 4(2).

European Commission, ‘Impact Assessment Accompanying the Communication “Stepping up Europe’s 2030 Climate Ambition: Investing in a Climate-neutral Future for the Benefit of Our People”’ (Staff Working Document) SWD(2020) 176 final, 17 September 2020, 52.

Climate Action Tracker, ‘EU Country Summary’, < https://climateanalytics.org/media/1-5pathwaysforeu27-2022.pdf > accessed 18 December 2023.

Jana Gheuens and Sebastian Oberthür, ‘EU Climate and Energy Policy: How Myopic Is It?’ (2021) 9 Politics & Governance 337, 342.

Climate Analytics, ‘1.5°C Pathways for the EU27: Accelerating Climate Action to Deliver the Paris Agreement’ (September 2022) 23 < https://climateanalytics.org/media/1-5pathwaysforeu27-2022.pdf > accessed 18 December 2023.

William Hare and others, ‘Achieving the 1.5°C Limit of the Paris Agreement: An Assessment of the Adequacy of the Mitigation Measures and Targets of the Respondent States in Duarte Agostinho v Portugal and 32 other States’ (Climate Analytics 2022) 54 < https://climateanalytics.org/media/final_report_ca_glan.pdf > accessed 18 December 2023.

Lavanya Rajamani and others, ‘National ‘Fair Shares’ in Reducing Greenhouse Gas Emissions within the Principled Framework of International Environmental Law’ (2021) 21 Clim Pol’y 983, 999.

ECL (n 1) art 4(3).

ibid art 4(4). The global stocktake is a process whereby Parties to the Paris Agreement assess at five-year intervals their collective progress ‘towards achieving the purpose of this Agreement and its long-term goals’. Paris Agreement (n 34) art 14(1). UNFCCC, ‘Decision -/CMA.5, Outcome of the First Global Stocktake’, UN Doc. FCCC/PA/CMA/2023/L.17 (13 December 2023).

ibid art 4(4). The ECL’s language on a ‘GHG budget’ is not entirely clear. The ECL defines it as an indicative budget for the ‘total volume of net greenhouse gas emissions’ for 2030–2050 ‘that are expected to be emitted in that period without putting at risk the Union’s commitments under the Paris Agreement’, ibid. This term seems to correspond to the notion of carbon budget commonly used in the literature (see eg Damon H Matthews and others, ‘Opportunities and Challenges in Using Remaining Carbon Budgets to Guide Climate Policy’ (2020) 13 Nature Geoscience 769, 769). In this article, we use the term ‘carbon budget’ to include emissions of all GHGs, not just carbon dioxide.

ECL (n 1) art 4(5).

Nils Meyer-Ohlendorf and others, ‘Designing the EU 2040 Climate Target’ (Ecologic 2023) 10–11.

Matthews and others (n 66) 775.

ESABCC (n 44) 10.

Neubauer et al v Germany , BverfG Beschluss des Ersten Senats vom 24.3.2021 – 1 BvR 2656/18 ( Neubauer ), para 192, available in English at < https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/03/rs20210324_1bvr265618en.html > accessed 4 October 2023. On climate litigation involving youth and future generations generally, see Larissa Parker and others, ‘When the Kids Put Climate Change on Trial: Youth-focused Rights-based Climate Litigation around the World’ (2022) 13 JHRE 64.

Neubauer (n 71) para 192.

Hilson (n 20) 215. See also Sarah Louise Nash and Reinhard Steurer, ‘Taking Stock of Climate Change Acts in Europe: Living Policy Processes or Symbolic Gestures?’ (2019) 19 Clim Pol’y 1052.

ECL (n 1) art 6(1).

ibid art 6(2).

ibid art 6(1)-(2). See also Commission (n 53).

ECL (n 1) art 6(1); and Governance Regulation (n 2) art 29(5). The relevant progress assessment under the Governance Regulation concerns, inter alia , collective progress with respect to implementation of obligations under the UNFCCC and Paris Agreement, obligations in the LULUCF Regulation and objectives set out in NECPs. For the first joint assessment of progress under the ECL and Governance Regulation, see Commission (n 53).

Matthias Duwe, ‘Making EU Climate Governance Fit for Net Zero’ (Ecologic Institute 2022) 14 and 16 < https://www.ecologic.eu/sites/default/files/publication/2022/3550-scientific-opinion-paper-making-eu-climate-governance-fit-for-net-zero-web.pdf > accessed 18 December 2023.

   ECL (n 1) art 6(1). See also Duwe (n 80).

Commission (n 53) 10.

ECL (n 1) art 6(3).

ibid art 7(2).

ibid art 7(3)(a).

ibid art 7(3)(b).

Governance Regulation (n 2) art 29(1)(b).

ibid art 32(1).

Nils Meyer-Ohlendorf, ‘Implementing New EU Climate Targets: Why Member State Responsibility Must Continue’ (Ecologic Institute 2021) 3, < https://www.ecologic.eu/sites/default/files/publication/2021/60005-Implementing-New-EU-Climate-Targets.pdf > accessed 18 December 2023.

M Vandendriessche and others, ‘The Governance of the Energy Union: Bridging the Gap?’ (Florence School of Regulation 2017).

Kulovesi and Oberthür (n 28).

Laura Hildt and Raphael Weyland, ‘Stepping up Enforcement: Recommendations for a Commission “Better Compliance” Agenda to Ensure the Application of EU Environmental Law’ (European Environmental Bureau and BirdLife International 2022) 3 < https://eeb.org/wp-content/uploads/2022/06/EEB-BirdLife_Stepping-up-Enforcement_Recommendations-for-an-EC-Better-Compliance-Agenda_2022-1.pdf > accessed 18 December 2023.

ECL (n 1) art 8.

ibid art 8(1).

ibid art 8(2).

ibid art 8(4).

ibid art 8(3). See Parliament and Council Regulation (EU) 2020/852 of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088 [2020] OJ L198/13 (Taxonomy Regulation).

Duwe (n 80) 4.

As also suggested in ibid.

Commission (n 53) 9–10.

Tom Christensen and Per Laegreid, ‘The Whole-of-Government Approach to Public Sector Reform’ (2007) 67 Pub Admin Rev 1059, 1060.

ECL (n 1) art 6(4).

Cf Per Mickwitz and others, ‘Climate Policy Integration, Coherence and Governance’ (Partnership for European Environmental Research 2009) 19.

Sebastian Oberthür and Ingmar von Homeyer, ‘From Emissions Trading to the European Green Deal: The Evolution of the Climate Policy Mix and Climate Policy Integration in the EU’ (2023) 30 JEPP 445.

ECL (n 1) art 7(3)(c).

Oberthür and von Homeyer (n 110) 451, referring to William M Lafferty and Eivind Hovden, ‘Environmental Policy Integration: Towards and Analytical Framework’ (2003) 12 Envtl Politics 1. With the term ‘principled priority’, Lafferty and Hovden suggest that environmental objectives and requirements should prevail over non-environmental objectives, unless there are overriding reasons to deviate from this rule.

European Parliament (n 48) amendments proposed to art 5(4).

For a critical assessment see Sebastian D Bechtel, ‘The New EU Climate Law: Symbolic Law or New Governance Framework’, Verfassungsblog (7 July 2021) < https://verfassungsblog.de/the-new-eu-climate-law/ > accessed 18 December 2023.

Duwe (n 80) 14.

Commission (EU), ‘The European Green Deal’ COM(2019) 640 final, 11 December 2019, 19. Although the European Green Deal does not elaborate on this principle, guidance can be found in the Taxonomy Regulation (and associated delegated acts), which specifies under which circumstances economic activities can be considered to lead to significant harm to environmental objectives. See Taxonomy Regulation (n 99) art 17; as well as Commission Delegated Regulation (EU) 2021/2139 of 4 June 2021 supplementing Regulation (EU) 2020/852 of the European Parliament and of the Council by establishing the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to climate change mitigation or climate change adaptation and for determining whether that economic activity causes no significant harm to any of the other environmental objectives [2021] OJ L442/1.

Cynthia Elliot and others, ‘Climate Advisory Bodies: Experiences and Approaches for Effective Climate Change’ Policy (World Resources Institute 2021) 11.

Nick Evans and others, ‘Climate Governance Systems in Europe: The Role of National Advisory Bodies’ (Ecologic Institute and IDDRI 2021) 6 and 46.

Alina Averchenkova and Lara Lazaro, ‘The Design of an Independent Expert Advisory Mechanism under the ECL: What Are the Options?’ (Grantham Research Institute on Climate Change and the Environment, LSE 2020) 8.

See eg on the UK Climate Change Committee: Alina Averchenkova, Sam Fankhauser and Jared J Finnegan, ‘The Influence of Climate Change Advisory Bodies on Political Debates: Evidence from the UK Committee on Climate Change’ (2021) 21 Clim Pol’y 1218; Harriet Dudley, Andrew Jordan and Irene Lorenzoni, ‘Advising National Climate Policy Makers: A Longitudinal Analysis of the UK Climate Change Committee’ (2022) 76 Glob Envtl Change 102589.

ECL (n 1) art 3(1). See Elliot and others (n 118); Evans and others (n 119); Matilda Miljand and Karin Bäckstrand, ‘Climate Policy Councils: Success Factors and Lessons Learned’ (Global Challenges Foundation 2021).

ECL (n 1) art 3(4). Indeed, several Member States had already done so prior to the adoption of the ECL. See Evans and others (n 120).

Parliament and Council Regulation on the European Environment Agency and the European Environment Information and Observation Network [2009] OJ L126/13, as amended by the ECL, art 10a(2). The list of members can be found at European Advisory Board on Climate Change, ‘Members’ < https://climate-advisory-board.europa.eu/about/advisory-board-members > accessed 18 December 2023.

ibid art 10a(2).

ibid art 10a(4).

ESABCC, ‘Annual Work Programme 2023’ (20 December 2022) 4 < https://climate-advisory-board.europa.eu/about/description-of-the-ecl-and-the-legal-mandate/2023-work-programme-of-the.pdf/@@display-file/file > accessed 18 December 2023.

ECL (n 1) art 3(2).

Ibid art 12(1) (amending art 10a of Regulation No 401/2009/EC).

ESABCC (n 44).

Annual Work Programme 2023 (n 130).

Elliot and others (n 118); Miljand and Bäckstrand (n 123).

Elliot and others (n 118) 15.

ECL (n 1) arts 4(5)(a), 8(3)b and 11.

See similarly Oberthür and others (n 19) 24.

Catherine Higham and others, ‘Accountability Mechanisms in Climate Change Framework Laws’ (Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science (LSE) 2021).

ClientEarth, ‘Historic High Court Ruling Finds UK Government’s Climate Strategy “Unlawful”’ (2022) < https://www.clientearth.org/latest/press-office/press/historic-high-court-ruling-finds-uk-government-s-climate-strategy-unlawful/ > accessed 18 December 2023; and ClientEarth, ‘UK Government Faces Fresh Legal Challenge over “Unlawful” Climate Plans’ (2023), < https://www.clientearth.org/latest/press-office/press/uk-government-faces-fresh-legal-challenge-over-unlawful-climate-plans/ > accessed 18 December 2023; and T Dooks, ‘Better Transparency Is No Substitute for Real Delivery’ ( Climate Change Committee , 27 June 2023) < https://www.theccc.org.uk/2023/06/28/better-transparency-is-no-substitute-for-real-delivery/ > accessed 18 December 2023.

Victoria Adelmant, Philip Alston and Matthew Blainey, ‘Human Rights and Climate Change Litigation: One Step Forward, Two Steps Backwards in the Irish Supreme Court’ (2021) 13 J Hum Rts Practice 1.

Kati Kulovesi and others, ‘Finland’s First Climate Judgment: Putting the Government on Notice’ (2035Legitimacy Blog, 12 June 2023) < https://2035legitimacy.fi/finlands-first-climate-judgment-putting-the-government-on-notice/ > accessed 18 December 2023.

Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2162 UNTS 447.

See eg Jan H Jans, ‘Who Is the Referee? Access to Justice in a Globalised Legal Order’ (2011) 4 Rev Eur Admin L 87; Jan H Jans, ‘On Inuit and Judicial Protection in a Shared Legal Order’ (2012) 21 Eur Energy Envtl LR 188; Sanja Bogojević, ‘Human Rights of Minors and Future Generations: Global Trends and EU Environmental Law Particularities’ (2020) 29 RECIEL 191.

Mariolina Eliantonio and others (eds), Standing up for Your Right(s) in Europe: A Comparative Study on Legal Standing (Locus Standi) before the EU and Member States’ Courts (Intersentia 2013).

Joana Setzer and others, ‘Climate Litigation in Europe: A Summary Report for the European Union Forum of Judges for the Environment’ (Grantham Research Institute on Climate Change and the Environment, LSE 2022).

See eg Urgenda Foundation v State of the Netherlands , Case no C/09/456689/ HA ZA 13-1396 (2015); Friends of the Irish Environment v The Government of Ireland & Others , [2020] IESC 49; Neubauer (n 71) Notre Affaire à Tous et al v France , Tribunal Administratif de Paris, Case no 1904967, 1904968, 1904972, 1904976/4-1 (3 February 2021 and 14 October 2021).

See eg Case C-158/15, Elektriciteits Produktiemaatschappij Zuid-Nederland EPZ NV v Bestuur van de Nederlandse Emissieautoriteit , ECLI:EU:C:2016:422; Case C-5/16, Republic of Poland v European Parliament and Council of the European Union , ECLI:EU:C:2018:483.

Setzer et al (n 147) reported only five strategic cases filed with the courts of the EU in 2022.

Case T-330/18, Armando Carvalho and Others v European Parliament and Council of the European Union Order of the General Court , ECLI:EU:T:2019:324.

Case T-141/19, Peter Sabo and Others v European Parliament and Council of the European Union Order of the General Court , ECLI:EU:T:2020:179.

Parliament and Council Regulation (EU) 2021/1767 amending Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2021] OJ L356/1.

Natasha Turner, ‘EU Taxonomy Forest Bioenergy Inclusion “Unlawful”’ ( ESG Clarity , 16 September 2022) < https://esgclarity.com/eu-taxonomy-forest-bioenergy-inclusion-unlawful-say-ngos/ > accessed 18 December 2023; ClientEarth, ‘Environmental Groups Take EU to Court over “Green” Gas Label’ (18 April 2023), < https://www.clientearth.org/latest/press-office/press/eu-taxonomy-environmental-groups-take-eu-to-court-over-green-gas-label/ > accessed 18 December 2023; Valentina Romano, ‘NGOs Sue Commission for ‘Absurd’ Inclusion of Gas in EU Green Taxonomy’, EurActiv (18 April 2023), < https://www.euractiv.com/section/energy-environment/news/ngos-sue-commission-for-absurd-inclusion-of-gas-in-eu-green-taxonomy/ > accessed 18 December 2023.

Sebastian D Bechtel, ‘Short Note: Access to Justice under the EU Climate Law’ ( ClientEarth , 20 December 2020).

See European Parliament (n 48), inserting in the Governance Regulation a new Article 11a on Access to Justice.

See Case C-197/18, Wasserleitungsverband Nördliches Burgenland and Others , ECLI:EU:C:2019:824.

See eg Parliament and Council Regulation 2023/1115 of 31 May 2023 on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation and repealing Regulation (EU) No 995/2010 [2023] OJ L150/206, art 32.

Sebastian D Bechtel, ‘Access to Justice to Enforce the European Green Deal’ (2023) < https://www.clientearth.org/projects/access-to-justice-for-a-greener-europe/updates/access-to-justice-to-enforce-the-european-green-deal/ > accessed 18 December 2023.

Similarly, proposals to include national-level access to justice provisions in the revised LULUCF and Effort-sharing Regulations were not accepted: see Frederik Hafen and Romain Didi, ‘Legal Challenges by NGOs, Citizens Key to Climate Battle’, Social Europe (22 December 2022), < https://www.socialeurope.eu/legal-challenges-by-ngos-citizens-key-to-climate-battle > accessed 18 December 2023.

See eg Bernadett Kiss and others, ‘Citizen Participation in the Governance of Nature-Based Solutions’ (2022) 32 Envtl Pol’y & Governance 247; Nicolas W Jager and others, ‘Pathways to Implementation: Evidence on How Participation in Environmental Governance Impacts on Environmental Outcomes’ (2020) 30 J Pub Admin Res & Theory 383; Candice Howarth and others, ‘Building a Social Mandate for Climate Action: Lessons from COVID-19’ (2020) 76 Envtl and Resource Econ 1107.

Maria Lee, ‘Knowledge and Landscape in Wind Energy Planning’ (2017) 37 Legal Studies 3.

Linda Weaver and J Bradley Cousins, ‘Unpacking the Participatory Process’ (2004) 1 J Multidisciplinary Evaluation 19.

Ingmar von Homeyer and others, ‘Implementing the European Green Deal during the Evolving Energy Crisis’ (2022) 60 JCMS 125.

Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1; and Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13 (‘Aarhus Regulation’).

See also Aarhus Regulation, ibid art 9(1).

Parliament and Council Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2012] OJ L26/1.

Parliament and Council Directive 2001/42/EC of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30.

European Commission, ‘European Climate Pact’ COM(2020)788 final, 9 December 2020.

See Knowledge Network on Climate Assemblies, ‘National Climate Assemblies’ < https://knoca.eu/national-climate-assemblies/ > accessed 4 October 2023.

Governance Regulation (n 2) art 10.

ibid art 11.

ECL (n 1) art 9(1).

ibid art 9(2).

ibid art 10.

See Oberthür and others (n 19) 36.

European Commission, ‘Shaping the EU’s Climate Transition: European Citizens Take the Floor’ (Publications Office of the EU 2022).

Fisher (n 5).

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These laws have formed a foundation to fight climate change

Lyndon Johnson signs the Clean Air Act in 1967, adding to a broad foundation for future climate laws. Image:  Mike Geissinger/Public Domain

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• Decades of legislation and policymaking are proving helpful to confront the climate crisis.
• Recent efforts include a mandate for new cars sold in Europe to be emissions-free by 2035.
• More must be done to match climate laws with the climate reality.

Nearly four decades ago, a US senator proposed legislation to draw up a national strategy for studying and addressing climate change. It quickly went nowhere .

Congress was at that point more focused on things like tax reform and a surging crack cocaine epidemic . And the bill’s sponsor, Joe Biden, was on the verge of launching an ill-fated early presidential run.

But there were plenty of other climate laws yet to come.

Their steady construction around the world over the years has created the legal footing necessary to confront the threat of physical and financial destruction.

A database compiled by the Grantham Research Institute at LSE and the Sabin Center at Columbia Law School puts the cumulative number of global climate laws and policies at 3,145. It stretches back to Japan’s 1947 Disaster Relief Act, which is about as old as that country’s modern constitution and complements other climate-related measures.

The most recent entries include a UK plan to decarbonize and domesticate energy production, and Türkiye’s policy bid to ramp up the production and use of hydrogen.

New rules and regulations keep cropping up; EU member states just approved a plan requiring that all new cars sold there must be emissions-free by 2035.

Sometimes additional laws can help manage the unintended impacts of others; a measure eliminating carbon dioxide-emitting cars, for example, might spur yet another policy to avoid reliance on metals that are critical for electric cars but concentrated in countries deemed politically unstable.

The historic legislation and policies crucial for climate progress may make no explicit mention of “climate change,” “ tipping points ,” or other contemporary terms now taken for granted. But they did share a focus on curbing pollutants, fossil fuels, and the damage they can unleash.

The Clean Air Act passed in the US in 1963 was aimed at reducing the health impacts from power-plant emissions released in one state on people living in another; it would later become an important tool for fighting global warming.

A bit more than a decade after that, Norway passed a law in 1976 to prevent products from damaging health and “causing environmental disturbance.”

And a few years after that, Japan reacted to a global energy crisis by enacting a law limiting the use of fuel, heat, and electricity. The same crisis inspired France to start drawing most of its electricity from nuclear power, helping to make it the advanced economy with the lowest emissions per capita.

Dotting the i’s and crossing the t’s on climate

Climate policy is a boring necessity drawn up in backrooms, far from the front lines . It’s been nudged forward by decades of international efforts to spur discussion and pool global knowledge, setting crucial guideposts along the way for domestic lawmakers.

The panel convened by the UN for its most recent influential report on the changing climate, for example, included 743 experts from around the world in environmental physics, energy efficiency, and economics – people probably more comfortable with spreadsheets than balaclavas .

It’s reasonable to be skeptical about the ideological intentions of such globally-well-connected intelligentsia, as the historian Adam Tooze observed recently. But in fact, as he put it, these people tend to be both profoundly committed and broadminded.

As they answer questions about what it will take to put the planet on a better path with data, legislators follow their lead with bills, committees, and amendments.

It’s clear that more must be done to match current laws with the climate reality. That recent UN panel report found that there’s very little remaining chance of limiting warming to the crucial threshold of 1.5°C, barring dramatic emissions reductions.

Global sea surface temperatures hit all-time highs this month, and unprecedented rates of sea level rise have been recorded in the US. India recently had its warmest February since 1901, and its heatwaves are becoming even more destructive (that country’s last entry in the global climate law database: a bill mandating the use of renewable energy and carbon-neutral technology).

Politicians drawing attention to climate realities are sometimes accused of hyperbole. In remarks made while signing the Air Quality Act in 1967, Lyndon Johnson, a US president with a legendary ability to stretch the truth, drew a vivid picture of life circa 1980 – when far more cars would be on the roads burning fuel.

“Either we stop poisoning our air,” he said, “or we become a nation in gas masks, groping our way through the dying cities and a wilderness of ghost towns that the people have evacuated.”

Sounds awful. And also eerily similar to images of the aftermath of wildfires that have recently scourged the western US, intensified by climate change. In this case, at least, Johnson seems to have been sticking close to the facts.

More reading on climate laws and climate reality

For more context, here are links to further reading from the World Economic Forum's Strategic Intelligence platform :

• The biggest obstacle is “political, not technical.” The inadequacy of commitments to winding down the use of coal-fired power could directly expose about 800 million people to rising sea levels, according to this piece. ( Inside Climate News )
• The EU’s agreement on zero-emissions cars by 2035 followed lengthy debate, according to this piece; Italy wanted a biofuels exemption (not granted), Germany wanted a carveout for “e-fuels” using hydrogen (granted), and Poland voted against the measure over concerns about rising car prices. ( Yale Environment 360 )
• Because it's not getting any cooler – the US needs to update policies on heat-warning systems now that climate change impacts are worsening, this piece argues. ( STAT )
• Under another new rule proposed in the EU, according to this piece, companies will have to back up their claims about climate-friendly products with independently-verified science. ( GreenBiz ) .
• What’s a “tipping cascade?” One example: melting Greenland ice pushes so much freshwater into the North Atlantic it impacts the ways ocean currents move water and heat globally. According to an expert interviewed in this piece, cutting emissions can help make these scenarios a lot less likely. ( EOS )
• The policies of a past military dictatorship still haunt Chile, where according to this report a climate crisis has been intensified by a subsidized timber industry and drought-primed forests. ( Inside Climate News )
• For those baseball fans fortunate enough to avoid other climate impacts first-hand, this study identifies at least one: over 500 major league home runs attributable to high temperatures resulting from climate change. ( Science Daily )

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Teaching & Learning

A changing climate for environmental lawyers.

A new course examines the wide-ranging implications of law for climate change

One of the first things students learn in Richard J. Lazarus’ new Climate Lawyering course is that if climate law was ever a niche field, it is no longer.

Or, as Brandon Deutsch ’24 puts it, “Climate touches everything.”

Indeed, concerns about climate change are not limited to entities like the Environmental Protection Agency or the Department of Energy. Today, even agencies such as the Department of Defense and the Securities and Exchange Commission are considering the effects of climate change on the nation, our world, and our ways of life. 

“The threat of potentially catastrophic consequences from climate change due to increasing concentrations of greenhouse gas in the atmosphere is both enormous and unyielding,” says Lazarus ’79, the Howard and Katherine Aibel Professor of Law at Harvard. “To date, however, our nation has mostly stumbled in its efforts to craft laws that meet the immense challenge of reducing domestic greenhouse gas emissions and that redress the massive adverse effects of climate change that can no longer be avoided during our own lifetimes.”

As daunting as the problem may be, however, Lazarus’ course makes clear that the scope of the issue also means there are countless opportunities for aspiring climate lawyers to make a difference. 

Doctrine in action

Lazarus says he designed the class to examine the role that lawyers can play in addressing urgent questions of climate change, while moving beyond the traditional areas of pollution control and natural resource management. In fact, lawyers in both the public and private spheres, practicing in areas as diverse as corporate law, energy and financial regulation, intellectual property, and national security, are concerned with reducing, mitigating, and planning for global climate change, he says. The inspiration for the new class originated in a series of conversations that he and Catherine Claypoole LL.M. ’98, dean for academic and faculty affairs, had with students in the spring of 2022 about how the law school might best expand its curriculum in response to climate change.

Sebastian Miller ’24 says he has known he’s wanted to be a climate lawyer since witnessing the devastation wrought by wildfires in his home state of California. But he hasn’t always been sure where that practice would take him. “If you are someone committed to using your law degree to help the environment, it can feel a bit overwhelming to know where to start,” he says. “I saw this seminar as a good opportunity to get a broader survey of the field and see how I could make a difference in an area that speaks to me.”

And while Sara Tsai ’23 says she also entered the course with a deep interest in climate law, such interest wasn’t a prerequisite. “Professor Lazarus welcomes everyone from any background,” she says. “This class opened our eyes to the many possibilities of environmental lawyering and made me even more interested in exploring career paths in this field.”

At the heart of Lazarus’ course is a recognition of the many challenges climate lawyers have faced — and continue to face — in making progress on climate and environmental issues. “One of the principal tensions we discussed is the tug of war between the ‘here and now’ and the ‘there and then,’” says Miller. “In other words, although we are already feeling some of the effects of climate change, many of the impacts will be felt in the future. And so, how should we balance current interests — a working power grid, the comforts of daily life — with preparing for a more sustainable world?”

While the political, legal, and logistical hurdles seem daunting, Miller says, “the course also impressed on us the necessity of reimagining the ways in which many different agencies and industries can each respond to the challenges ahead. We need all hands on deck.”

Brandon Deutsch ’24, who came to law school to practice climate law, says his mission is now clearer: “The goal is to make the future look a little brighter — or at least, keep it from looking darker.” 

One assignment required students to dive into a legal issue that interested them and present their findings to the class. Deutsch chose to examine the lessons from the Big Tobacco lawsuits of the last century, which culminated in a massive settlement agreement that severely reduced cigarette consumption in the U.S. Might a similar scheme work for climate change, with advocates suing oil and gas companies or other contributors of greenhouse gas emissions?

“I walked away with the sense that there are a lot of contrasting factors that will make this a lot more difficult than the tobacco litigation, which was already so difficult that it took 40 years to succeed,” Deutsch says. “Because here we are talking about the whole energy industry, and the causation issues are much more difficult.”

Still, Deutsch says the exercise helped him understand the ways in which plaintiffs’ law firms and nonprofits impact climate law and policy, in addition to the roles Congress and executive branch agencies play. “It’s an all-hands-on-deck problem,” he adds, echoing Miller’s sentiments.

Beyond in-class discussion and student presentations, sessions included visits from experts from a variety of different fields and practice areas, each of whom shared their knowledge and answered the students’ sometimes tough questions.

For Miller, these industry titans were both inspiring and informative. “Day one we opened up with Professor Dan Schrag, who is the godfather of environmental science at Harvard,” he says. “We also heard from Carol Browner, who is the former head of the EPA, among many others. To be able to hear from so many leading experts, learn about their career decisions, and speak to them about their work — it’s been really, really special.”

Despite the scope of the work ahead, the students say Lazarus’ course made them appreciative of what has been accomplished by the climate lawyers who came before them, cautiously optimistic about the potential for change, and more secure in their own roles in those efforts.

“Many people who are climate lawyers now may not get to see the fruits of their labor. It’s not for themselves; it’s for their children, their grandchildren, for the generations ahead,” says Tsai. “It was really inspiring to learn about and meet those who have dedicated their lives to this, knowing that the groundwork they laid will continue to be built on in the future.”

For Deutsch, who came to law school to practice climate law, the mission is now clearer. “It is important to understand that this is the future that we’re moving into. So what do we do about it?” he says. “The goal now is to make the future look a little brighter — or at least, keep it from looking darker.”

Modal Gallery

Gallery block modal gallery.

Climate Change

Held v. state.

Montana Court Holds that Montana Youth Can Access Equitable Relief for Climate Impacts.

Climate Carceralism: The Future of Climate-Linked Prison Labor

Mayor of baltimore v. bp p.l.c..

Fourth Circuit Declines to Apply Federal Common Law for Municipal Climate Change Lawsuit.

Necessity Takings in the Era of Climate Change

Sacchi v. argentina.

Committee on the Rights of the Child Extends Jurisdiction over Transboundary Harms; Enshrines New Test

Developments in the Law — Climate Change

Quotes & Contents

State Preemption of Local Zoning Laws as Intersectional Climate Policy

Chapter Three

The Promise and Perils of Carbon Tariffs

Chapter Five

Mandate Versus Movement: State Public Service Commissions and Their Evolving Power Over Our Energy Sources

Chapter Four

Indigenous Interpretations: Invoking the Third Indian Canon to Combat Climate Change

Chapter Two

Centre for Law and Environment

Net Zero Rule of Law: Climate Consciousness and Legal Education

10 March 2022

By Dr Kim Bouwer, Assistant Professor, Durham Law School

All law students need to understand climate change; the entire context of their working lives will be shaped by the quest for net zero. Yet even climate conscious legal academics shy away from this responsibility, reluctant to burden our students with our own scholarly obsessions, in case this is at the cost of the best orthodox legal education.  This is mirrored by the perceived tensions between the strictures of the rule of law and the need to address the multiple dimensions of climate change . But this perception neglects the reality that climate consciousness is no longer optional; all lawyers need to understand and apply legal norms in the context of a society dealing with the impacts of climate change, while transitioning to ‘net zero’ carbon economies.

Seven years ago, I argued for climate consciousness in daily legal practice . At the time, the picture of global climate change governance was looking pretty hopeless, both in developing adequate legal structures and in delivering global policy ambition. I suggested that climate conscious lawyers are mindful that climate change is as much a local and immediate issue, as it is a global problem of the past and future. They exercise conscious awareness of the problem, and recognise that climate issues brush up against their everyday practice (whether as academic or practising lawyers). Judge Preston has added that, through climate conscious reasoning, lawyers in practice can give advice and resolve legal problems in ways that meaningfully address climate change issues. A ‘climate conscious’ approach to the myriad issues arising in a daily practice of law accentuates the importance of lawyers’ conduct, decisions and advice in the context of climate change.

For lawyers practising in historically high-emitting states, climate conscious practice is no longer optional – and, indeed, never should have been. The collective international obligation to keep temperature increases well below 2 degrees Celsius, and many states’ domestic commitments to achieve ‘net zero’ emissions by mid-century, have changed that. Since 2008, in my adopted jurisdiction of England and Wales, a constitutional statute – the Climate Change Act 2008 – has required a transition to a low-carbon society. Since 2019, this Act has required a transition to net-zero . As such, it can now be argued that the Climate Change Act, and with it the net zero target, has a special constitutional status and is a fundamental norm which must be protected by the law. By analogy, human rights were introduced into domestic law less than a decade before the Climate Change Act. Bingham’s ‘thick’ account of the rule of law requires respect for and protection of the full range of human rights. So it is certainly arguable that, where stringent climate targets are legislated, there is less a question of whether climate trumps democracy , and more one of whether the perceived demands of orthodoxy can trump the democratically adopted net zero rule of law.

I appreciate that that bald statements about a new ‘net zero’ rule of law hide a world of complexity. The very meaning of ‘net zero’ is contested – as indeed is that of the rule of law – and the law and policy framework enacted to achieve it are still inadequate. It is not my project to resolve these struggles here. The analogy of human rights legislation is not a perfect one, by any means. In many respects, the law and policy framework designed (or claimed) to achieve net zero are inadequate , and there is no accepted, and normatively compelling, set of principles underlying ‘net zero’, as is the case with human rights.

Nevertheless, the daily practice of lawyers is and will be conducted in a web of climate law. Lawyers upholding and defending the rule of law can protect or confront clients in relation to wider legal obligations ; but they would do so with an understanding where and how they are exposing themselves, and their clients, to risk. Any practising lawyer will need to know what that law is, as they are now required to interpret the law and provide advice in the context of climate change.  This climate conscious reasoning – the need to interpret legal rules in such a way that promotes or better implements climate change goals, or takes account of a range of risks arising in the context of climate change – will take some learning.  But to return to this imperfect but useful analogy, common lawyers learned to work with domestic human rights legislation. Failing to do similarly in relation to climate change law risks exposing practising lawyers to charges of professional misconduct. More importantly, not adequately understanding the scope and extent of this new reality means that climate unconscious lawyers will provide a poor service, neglecting the interests of their clients and their own practice.

This raises serious questions about the training and education of future lawyers. 

The study of environmental law has traditionally been a niche topic in UK law degrees, and climate change law is more usually taught as an environmental law subtopic.  Nothing I say below should be read as suggesting that this educational practice should not continue.  Research-informed teaching on climate change law supports students’ normative understanding of the topic. This provides an opportunity to engage in depth with the topic, and supports critical engagement with questions of adequate ambition, justice, and society, which a ‘mainstreamed’ approach cannot reach.

However, legal educators now face the responsibility of ensuring that students graduating with a law degree leave our universities with an adequate understanding of what the climate crisis entails, and a capability of practising as climate conscious lawyers.  This means they must be able to recognise the myriad ways in which climate issues are implicated in their daily practice, identifying risks to their clients’ business and to their own practice arising from these connections.  They will need to be able to interpret existing legal rules in the context of climate change.  This can only be done effectively if climate change education is embedded into the material that students must (or are most likely to) learn to enter legal practice.  As a bare minimum, law students should understand the constitutional statutes that form the basis of domestic climate change law and governance, and have an opportunity to interpret common law (or statutory) rules in the context of climate problems.

Returning to my human rights analogy: it is inconceivable now that a student could graduate with a qualifying law degree, and not understand the operation of the (for now) Human Rights Act 1998 or the relationship human rights has with the common law and the rule of law. Yet, in 2022, a law student can graduate from the best UK universities without any understanding of the constitutional nature of the Climate Change Act 2008, the pervasive implications of carbon budgets, or the society-wide change that will – and must – happen throughout their life of practice. This is a duty that cannot be neglected out of deference to an outdated orthodoxy. Questions of how the law and legal institutions will adapt to or be shaped by the climate crisis, and how to protect what is valuable in these institutions, are questions they will need to resolve during current and future lawyers’ working lives.

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.

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Contemporary Issues in Climate Change Law and Policy: Essays Inspired by the IPCC

Stephen R. Miller , University of Idaho College of Law Follow

Description

The Intergovernmental Panel on Climate Change’s most recent set of reports, generally referred to collectively as the Fifth Assessment Report, present significant data and findings about climate change. But what role does law play in addressing and responding to these findings? This book, the second by the Environmental Law Collaborative, an affiliation of environmental law professors, focuses on the relationship between law and the Fifth Assessment Report in hopes of bridging this gap. This book’s chapters are illustrative of the overwhelming number of legal issues that climate change creates. Some of the contributions remain directly tied to the text of the IPCC’s reports, while others focus on climate change more generally. Together, this volume contributes to a constructive and helpful discussion about how to address the climate change challenge.

9781585761777

Publication Date

Environmental Law Institute

Washington, D.C.

• Disciplines

Environmental Law

Editors: Robin Kundis Craig & Stephen R. Miller

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Contemporary Issues in Climate Change and Policy: Essays Inspired by the IPCC

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A year in, landmark U.S. climate policy drives energy transition but hurdles remain

Rachel Waldholz

Nicholas Hartnett, owner of Pure Power Solar, carries a panel as he and Brian Hoeppner (right) install a solar array on the roof of a home in Frankfort, Ky., on July 17. Tax credits from the Inflation Reduction Act will reduce the cost of installing rooftop solar panels by 30%, which will in turn lower monthly electricity bills. Michael Conroy/AP hide caption

Nicholas Hartnett, owner of Pure Power Solar, carries a panel as he and Brian Hoeppner (right) install a solar array on the roof of a home in Frankfort, Ky., on July 17. Tax credits from the Inflation Reduction Act will reduce the cost of installing rooftop solar panels by 30%, which will in turn lower monthly electricity bills.

A year ago, Sonia Aggarwal watched from home as the votes came in on the U.S. Senate floor. Aggarwal was working as a White House aide, advising the Biden administration on climate policy. She'd been up all night, listening as senators debated legislation she and many others had spent more than a year trying to pass.

When Vice President Kamala Harris finally cast the tie-breaking vote — 51 to 50 — on Aug. 7, 2022, Aggarwal was in tears.

With that vote, the country's most significant climate legislation made it through the U.S. Senate, a body that had stymied previous efforts for decades. The bill went on to clear the U.S. House, and made its way to President Biden for his signature on Aug. 16, 2022.

"The Inflation Reduction Act is the most significant step forward on climate in American history," Aggarwal said. "Full stop."

The Inflation Reduction Act (IRA) may have a bureaucratic name, but it sets expansive goals. The policy aims to dramatically decrease the U.S. contribution to climate change, slashing greenhouse gas emissions by shifting the economy away from fossil fuels.

President Biden signs the Inflation Reduction Act with (from left) Sen. Joe Manchin, D-W.Va., Senate Majority Leader Charles Schumer, D-N.Y., House Majority Whip James Clyburn, D-S.C., Rep. Frank Pallone, D-N.J., and Rep. Kathy Castor, D-Fla., in the State Dining Room of the White House on Aug. 16, 2022. Drew Angerer/Getty Images hide caption

President Biden signs the Inflation Reduction Act with (from left) Sen. Joe Manchin, D-W.Va., Senate Majority Leader Charles Schumer, D-N.Y., House Majority Whip James Clyburn, D-S.C., Rep. Frank Pallone, D-N.J., and Rep. Kathy Castor, D-Fla., in the State Dining Room of the White House on Aug. 16, 2022.

The law directs at least $369 billion — and potentially much more — toward incentives for nearly every sector of the economy to adopt renewable energy and other low-carbon technologies.

The goal is to make alternatives cheaper — and more attractive — than fossil fuels, said Jesse Jenkins, a professor at Princeton University who advised on the law.

"What the Inflation Reduction Act effectively does, is it aligns the full financial might of the federal government behind the push towards cleaner energy resources," Jenkins said. "In essence, it puts clean energy on sale for households and businesses and industries all over the country."

The law faces opposition among Republican lawmakers. It passed along party lines, with only Democrats voting in favor. Since Republicans gained control of the U.S. House this year, many have called for repealing its incentives , arguing the price tag is too high, and transitioning away from fossil fuels shouldn't be a priority.

Here are three takeaways as the first major U.S. climate policy turns one.

"Rocket fuel" for renewable energy, but hurdles remain

Nearly $200 billion in tax credits at the center of the IRA aim to clean up the two biggest sources of U.S. greenhouse gas emissions: transportation and power plants.

The incentives are meant to help speed the transition to electric vehicles and boost the deployment of low-carbon energy like wind and solar power, while also encouraging companies to build those vehicles, solar panels and wind turbines in the U.S.

One year in, that's starting to happen, say analysts and industry representatives.

"The IRA really has acted like rocket fuel across every segment and corner of our industry," Heather O'Neill, head of the trade group Advanced Energy United, told reporters Monday.

Projects like wind and solar farms take years of planning, so it's too soon to see the law driving new power onto the grid, said Chris Seiple at the energy consulting firm Wood Mackenzie. But Wood Mackenzie estimates the amount of renewable power added to the grid each year will roughly triple by 2030 as a result of the IRA, he said.

"This is legislation that is going to result in a radical transformation of the electric supply in the United States," Seiple said.

Meanwhile, companies have issued a steady stream of announcements for new factories in the U.S., especially for electric vehicles, batteries and solar panel components. The vast majority of solar and battery manufacturing currently takes place outside the U.S., much of it in China.

But both automakers and renewable energy developers face major challenges.

Auto workers are worried they'll be left behind in the transition to electric vehicles. Wind and solar developers say their projects face increasing opposition from local communities, some of it fueled by misinformation . The electric grid is also struggling to accommodate new projects, with many already waiting years for permission to connect.

Gregory Wetstone, president and chief executive officer of the American Council on Renewable Energy, an industry trade group, said on some level he welcomes the current challenges. They're a result, he said, of "trying to get so much done really rapidly, which is the pace we need to go to address the climate crisis."

There's money to "electrify everything" — but it may roll out slowly

Another focus of the law? You. Or at least your car, your gas stove and your furnace.

The Inflation Reduction Act makes billions of dollars available to help households switch to electric vehicles, replace fossil fuel-powered heating and cooling systems with more efficient electric heat pumps , install solar panels and insulate homes.

The law makes the electrification of American households the "hinge point" of U.S. climate policy, said Ari Matusiak, the chief executive officer of Rewiring America, a nonprofit campaigning to cut household emissions, which offers an online guide to the subsidies.

Some of the money is available now, as credits when you file your tax return. For instance, the law offers a tax credit of up to $7,500 for the purchase of certain electric vehicles and up to $4,000 for used EVs.

Credits, however, often cover only a fraction of the cost of major retrofits, like installing a heat pump.

Some benefits for low- and moderate-income households may not become available for months or years. The law creates a rebate program to reduce the up-front cost of electric appliances and home retrofits for households making up to a certain amount. Those programs will be administered by states, which have indicated it will take some time to staff up. Virginia's state department of energy has said it could take one or two years before the program is up and running.

Yes, the law reduces U.S. climate impact. But it's not enough.

Studies indicate the IRA will help significantly reduce U.S. greenhouse gas emissions. The think tank Rhodium Group found the IRA could cut emissions up to 48% from their peak by 2035.

The act still falls short of the U.S. commitment under the international Paris Agreement, to cut emissions in half from their 2005 peak by 2030. The U.S. has committed to reaching net-zero emissions by 2050, which means contributing no new greenhouse gasses to the atmosphere.

Scientists say those targets are necessary to limit warming to 2.7 degrees Fahrenheit (1.5 degrees Celsius) above pre-industrial levels, and avoid the most catastrophic impacts of climate change.

The Biden administration is rolling out other efforts to close the gap. The Environmental Protection Agency has proposed new rules to cut emissions from coal and gas-fired power plants, and to restrict emissions of methane, which is a powerful greenhouse gas.

Sonia Aggarwal is now the chief executive officer of the California-based environmental policy firm Energy Innovation. She says two things are true: the U.S. is moving faster than seemed possible just a few years ago. And it's still not fast enough.

But she sees the IRA ushering in a new phase.

"We have completely changed direction on our energy policy such that we will actually have a chance to meet our climate goals, which certainly was not the case even just a couple of years ago," Aggarwal said.

NPR's Camila Domonoske contributed to this reporting.

• Inflation Reduction Act
• renewable energy
• climate change

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Climate change and the law: the lunacy escalates.

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Frost Fair on the Thames at London, 1683. Winters in Britain were often particularly cold in the ... [+] 17th and 18th centuries, a period known as the 'Little Ice Age'. These impromptu fairs, offering a wide variety of amusements occurred in winters severe enough for the waters of the Thames to freeze over. The first was held in 1607, and the last in 1814, since when higher temperatures have meant that the Thames has never frozen over. (Photo by Ann Ronan Pictures/Print Collector/Getty Images)

In an astonishing verdict, Europe’s highest human rights court ruled on 9 th April that countries must better protect their citizens from “the consequences of climate change.” In the landmark ruling, setting a legal precedent across 46 member states of the Council of Europe, the court sided with a group of women called KlimaSeniorinnen or “Senior Women for Climate Protection.”

The elderly Swiss ladies claimed that their lives were endangered by heatwaves caused by “climate change”. In the court’s judgment, there is no uncertainty that heat waves are induced — as “scientific knowledge” supposedly makes clear — by fossil fuel use in modern industrial civilization. This is the first time an international court ruled on a climate-related human rights issue, in the first decision confirming governments have a legal obligation to “protect” people from the alleged effects of “climate change”. According to the court ,

“[I]nadequate State action to combat climate change exacerbated the risks of harmful consequences and subsequent threats for the enjoyment of human rights – threats already recognised by governments worldwide. The current situation therefore involved compelling present-day conditions, confirmed by scientific knowledge, which the Court could not ignore in its role as a judicial body tasked with the enforcement of human rights.”

The ECHR’s established law now requires no need for democratically passed legislation. Are we at an authoritarian point of inflection, where concerns about climate change are too important to be left to the will of ordinary people ? Are the barbarians at the gate, using the law as the Trojan horse to penetrate the citadels of democracy?

Is It Heat Or Cold?

According to Worldometers , Swiss women have the world’s fourth-highest life expectancy of 86 years, ranking behind Hongkong, Macao and Japan. Yet the KlimaSeniorinnen convinced the august judges at the ECHR that they were threatened by “heat waves.” Questions might arise as to just how long elderly Swiss women would like to live beyond their already high life expectancies.

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Worries about “heat waves” in the cool temperate climes of Western Europe might also seem rather farfetched. The earth has experienced slight and mostly beneficial general warming since the end (around 1850) of the Little Ice Age – when famine and starvation affected much of Europe. Suing governments over their lack of “action” in avoiding “too much hotness” in Europe is as outlandish as the comments about “ global boiling ” by the reliably hyperbolic United Nations Secretary-General António Manuel de Oliveira Guterres.

Not mentioned in court were inconvenient facts such as the statistics comparing deaths from excessive cold to those from excessive heat. As Kip Hansen points out, a simple Google Scholar search on heat versus cold deaths has the following responses:

In UK regions, cold-related mortality currently accounts for more than one order of magnitude more deaths than heat-related mortality (around 61 and 3 deaths per 100,000 population per year, respectively). In Australian cities, approximately 33 and 2 deaths per 100,000 population are associated every year with cold and heat, respectively. Between 2000 and 2010, 3.9% of the total mortality was attributed to cold, and 1.2% to heat.”

In another study of “the global, regional, and national mortality burden associated with non-optimal ambient temperatures” published in The Lancet – Planetary Health , it was found that, “...9.43% of all deaths were cold-related and 0.91% were heat-related.” That is, cold killed more than heat by over a factor of 10. Curiously, the elderly Swiss ladies seem far more afraid of heat than cold, despite the overwhelming evidence that it is the cold that kills far more often.

Climate Lawfare Is Not New

To be sure, the KlimaSeniorinnen were not without powerful supporters in their legal quest. The sleuthing journalism of Chris Morrison is revealing. Mr. Morrison suggests that the real plaudits over the legal win belong not to the elderly Swiss ladies but “to the elite billionaire paymasters behind lawfare activists such as Greenpeace and Client Earth” who financed the legal action. Client Earth, for example, is supported by the Sir Christopher Hohn’s Children’s Investment Fund Foundation, Hohn is also one of the funders of Extinction Rebellion activists, known for their vandalism and the blocking of ordinary people going about their business (or, in some cases, rushing to hospital for health emergencies ). He is also a big contributor to the European Climate Foundation. Others involved in financing these activist climate groups include the green billionaires Michael Bloomberg and Jeremy Grantham.

In the push for “Net Zero” decarbonization policies around the world, rich and powerful foundations have been relentlessly supporting an avalanche of “climate lawfare” initiatives in the West. In early 2020, the UK Court of Appeal’s decision to stop the expansion of Heathrow airport was one outcome of the lawfare waged by climate zealots. As one contemporary commentator put it : “This decision will surely open up a whole new Pandora’s box and allow the likes of Greenpeace to legally challenge any and every project they don’t like in future.”

The ECHR verdict is lawfare gone one step further. Not only is it kosher to stop large infrastructure projects that allegedly affect the climate adversely, but governments now can be compelled, on human rights grounds, to act against normal economic activity that allegedly leads to “climate change” and “extreme weather” events. By requiring European governments to suppress the emission of greenhouse gases on human rights grounds, any economic activity involving the use of fossil fuels – which provide over 80% of total global energy consumption – is now fair game for radical climate policymakers.

What The Elderly Swiss Ladies Have Wrought

Climate lawfare is now a well-established route to avoid the checks and balances of democratic legislation. It subverts the legal system of a country, often with the help of activist judges, to impose the ideological preferences of an elite of the climate industrial complex on wider society. The total number of climate change court cases is growing worldwide and has more than doubled since 2017 according to a 2023 report collating data to December 31 st , 2022. The report, published by the UN Environment Program (UNEP) and the Sabin Center for Climate Change Law at Columbia University, boasts “that climate litigation is becoming an integral part of securing climate action and justice.”

Climate policies that cannot get implemented by democratic means are now pushed through by lawfare campaigns backed by the powerful climate-focused foundations. In June 2021, Swiss voters rejected a new law which was proposed to help the country meet its target for cutting carbon emissions to tackle the alleged “climate crisis”. The legislation, which included taxes on car fuel and flight tickets, was opposed by 51.6% of the electorate under Switzerland's system of direct democracy. That popular vote against radical climate policies is now neutered and ordinary people have effectively been silenced.

Climate lawfare, as the elderly Swiss ladies and their deep-pocketed climate-zealot backers have found, is one way around the populist backlash against immiserating climate policies pursued by virtue-signaling European governments dominated by the green parties. Even as deaths from extreme weather events have been reduced by 98% over the past century, the West’s obsession over reducing CO2 emissions at any cost never ceases to amaze those not convinced by what the eminent physicist Richard Lindzen called the “absurdity of the conventional global warming narrative.”

What well-intentioned widespread misery have the elderly Swiss ladies wrought?

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Guest Essay

Xi Thinks China Can Slow Climate Change. What if He’s Right?

By Jacob Dreyer

Mr. Dreyer, an editor and writer who focuses on the Chinese political economy and science, wrote from Shanghai.

At first glance, Xi Jinping seems to have lost the plot.

China’s president appears to be smothering the entrepreneurial dynamism that allowed his country to crawl out of poverty and become the factory of the world. He has brushed aside Deng Xiaoping’s maxim “To get rich is glorious” in favor of centralized planning and Communist-sounding slogans like “ ecological civilization ” and “ new, quality productive forces ,” which have prompted predictions of the end of China’s economic miracle.

But Mr. Xi is, in fact, making a decades-long bet that China can dominate the global transition to green energy, with his one-party state acting as the driving force in a way that free markets cannot or will not. His ultimate goal is not just to address one of humanity’s most urgent problems — climate change — but also to position China as the global savior in the process.

It has already begun. In recent years, the transition away from fossil fuels has become Mr. Xi’s mantra and the common thread in China’s industrial policies. It’s yielding results: China is now the world’s leading manufacturer of climate-friendly technologies, such as solar panels , batteries and electric vehicles . Last year the energy transition was China’s single biggest driver of overall investment and economic growth, making it the first large economy to achieve that.

This raises an important question for the United States and all of humanity: Is Mr. Xi right? Is a state-directed system like China’s better positioned to solve a generational crisis like climate change, or is a decentralized market approach — i.e., the American way — the answer?

How this plays out could have serious implications for American power and influence.

Look at what happened in the early 20th century, when fascism posed a global threat. America entered the fight late, but with its industrial power — the arsenal of democracy — it emerged on top. Whoever unlocks the door inherits the kingdom, and the United States set about building a new architecture of trade and international relations. The era of American dominance began.

Climate change is, similarly, a global problem, one that threatens our species and the world’s biodiversity. Where do Brazil , Pakistan , Indonesia and other large developing nations that are already grappling with the effects of climate change find their solutions? It will be in technologies that offer an affordable path to decarbonization, and so far, it’s China that is providing most of the solar panels , electric cars and more. China’s exports, increasingly led by green technology, are booming, and much of the growth involves exports to developing countries .

From the American neoliberal economic viewpoint, a state-led push like this might seem illegitimate or even unfair. The state, with its subsidies and political directives, is making decisions that are better left to the markets, the thinking goes.

But China’s leaders have their own calculations, which prioritize stability decades from now over shareholder returns today. Chinese history is littered with dynasties that fell because of famines, floods or failures to adapt to new realities. The Chinese Communist Party’s centrally planned system values constant struggle for its own sake, and today’s struggle is against climate change. China received a frightening reminder of this in 2022, when vast areas of the country baked for weeks under a record heat wave that dried up rivers , withered crops and was blamed for several heatstroke deaths.

China’s government knows that it must make this green transition out of rational self-interest or risk joining the Soviet Union on history’s scrap heap, and is actively positioning itself to do so. It is increasingly led by people with backgrounds in science, technology and environmental issues. Shanghai, the country’s largest city and its financial and industrial leading edge, is headed by Chen Jining, an environmental systems expert and China’s former minister of environmental protection. Across the country, money is being poured into developing and bringing to market new advances in things like rechargeable batteries and into creating corporate champions in renewable energy .

To be clear, for Mr. Xi, this green agenda is not purely an environmental endeavor. It also helps him tighten his grip on power. In 2015, for instance, the Central Environmental Inspection Team was formed to investigate whether provincial leaders and even agencies of the central government were adhering to his green push, giving him another tool with which to exert his already considerable power and authority.

At the same time, locking in renewable energy sources is a national security issue for Mr. Xi; unlike the United States, China imports almost all of its oil, which could be disrupted by the U.S. Navy in choke points like the Malacca Strait in the event of war.

Mr. Xi’s plan — call it his Green Leap Forward — has serious deficiencies. China continues to build coal-fired power plants , and its annual greenhouse-gas emissions remain far greater than those of the United States, though American emissions are higher on a per-capita basis. China’s electric vehicle industry was built on subsidies , and the country may be using forced labor to produce solar panels. Those are serious concerns, but they fade into the background when Pakistan floods or Brazil wants to build an E.V. factory or South Africa desperately needs solar panels for a faltering energy grid.

American politics may be inadvertently helping China gobble up global market share in renewable energy products. When the United States — whether for national security or protectionist reasons — keeps Chinese companies like Huawei out of the American market or rolls up the welcome mat for electric vehicle makers like BYD or companies involved in artificial intelligence or self-driving cars, those businesses must look elsewhere.

President Biden’s Inflation Reduction Act , aimed at tackling climate change, has put the United States on a solid path toward carbon neutrality. But America’s decentralization and focus on private innovation means government policy cannot have quite the same impact that it can in China.

So it is crucial for Americans to recognize that, for most of the world, perhaps for all of us, China’s ability to provide low-cost green technology is, on balance, great news. All of humanity needs to move toward renewables at a huge scale — and fast. America still leads in innovation, while China excels in taking frontier science and making its application in the real world cost-effective. If American politicians, investors and businesses recognize that climate change is humanity’s biggest threat, that could open pathways for diplomacy, collaboration and constructive competition with China that benefit us all.

Together, China and the United States could decarbonize the world. But if Americans don’t get serious about it, the Chinese will do it without them.

And if the United States tries to obstruct China, by way of corporate blacklists, trade or technology bans or diplomatic pressure, it will end up looking like part of the climate problem. That happened earlier this month when Treasury Secretary Janet Yellen, during a visit to China, urged officials here to rein in green technology exports that the United States says are hurting American companies.

Mr. Xi won’t completely toss out the polluting manufacturing-for-export economic model that has served China so well, nor does he seem ready to halt construction of coal plants. Both are considered necessary for economic and energy security until the green transition is complete. But they are now only a means to an end. The endgame, it seems, is to reach carbon neutrality while dominating the industries making that possible.

Much like how the United States showed up late for World War II, China’s clean-tech companies are latecomers, piggybacking on technology developed elsewhere. But history rewards not necessarily who was there first but who was there last — when a problem was solved. Mr. Xi seems to discern the climate chaos on the horizon. Winning the race for solutions means winning the world that comes next.

Jacob Dreyer is an American editor and writer focused on the intersection of the Chinese political economy and science. He lives in Shanghai.

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Is the Wilderness Act Still Protecting Nature?

The landmark 1964 law is now preventing effective land management and critical climate research.

The Wilderness Act protects 175,000 square miles of public land. As the natural world is transformed by climate change, has the landmark 1964 law become counterproductive? Biologists Daniel T. Blumstein and Thomas B. Smith explain. Half Dome in Yosemite National Park. Courtesy of Wikimedia Commons .

by Daniel T. Blumstein and Thomas B. Smith | April 22, 2024

At the end of 2023, four environmental groups sued the National Park Service and invoked the Wilderness Act to stop the replanting of trees following a catastrophic wildfire in Sequoia and Kings Canyon National Parks. Around the same time, the National Park Service announced that it aimed to invoke the Wilderness Act to limit the use of fixed anchors  on Yosemite’s iconic big wall climbs.

How did a law created 60 years ago to protect nature in undeveloped areas come to do something else entirely—and, in the process, become counterproductive to its own goals? Today, the Wilderness Act of 1964 preserves nearly 175,000 square miles of public land in the United States, largely roadless expanses only accessible on foot or pack animal. We need to preserve such wild spaces more than ever: They are where threatened species and their habitats can best flourish with minimal human impacts.

But the California national parks where environmental stewards are applying to the Wilderness Act are neither remote nor roadless. Instead, the appeals to the Wilderness Act in those parks are part of a shift in approach to the law that may, in the end, run counter to its aims—and that needs to be rethought.

In addition to these cases, the Wilderness Act has increasingly been used  to limit scientific research in protected areas . This includes research on habitats being ravaged by the effects of climate change and disease outbreaks that directly affect the biodiversity that the act seeks to protect. Many of the limited activities are essential to understanding the ecological and evolutionary processes needed to manage these lands in the future, but they are not permitted—or are permitted only in highly exceptional cases—under the Wilderness Act.

As conservation biologists, we work in remote natural laboratories around the globe. Dan Blumstein spends his summers studying marmots at the Rocky Mountain Biological Laboratory (RMBL) near Crested Butte, Colorado. Crested Butte is a renowned recreation and nature tourism destination; RMBL is an internationally recognized research station that abuts the 283-square-mile Maroon Bells-Snowmass Wilderness Area.

Over the past decade, the RMBL has started to host hydrological and atmospheric studies with staggering possibilities thanks to new, remote-sensing technology that can collect constant data. Small weather stations and sensors create increasingly precise models of the ground growth conditions and help us understand precipitation and snowmelt. Conducting these studies near Crested Butte, at the headwaters of the Colorado River, is essential to understanding the hydrological dynamics that ultimately provide water for 40 million people in the southwestern United States and northeastern Mexico.

However, Wilderness Act protections mean that scientists cannot establish weather stations, deploy semi-permanent sensors, establish remotely triggered cameras to monitor wildlife, permanently mark individual plants with small metal tags, or leave small, plastic rain gauges out on these lands. There is a process to request exceptions, but it is arduous—and the government almost always denies them.

Should there be research in Wilderness Areas, and if so, what degree of research-related impacts are acceptable? Should we, as a society, permit recreational use, but not science in these minimally impacted areas? The government must reevaluate how the Wilderness Act is deployed. We assert this not because we view natural areas as unimportant, but rather because we view them as essential resources that can help us manage biodiversity.

Human-driven change—an unplanned global experiment on the Earth—is happening everywhere in this Anthropocene era. We are living through a global experiment with the planet’s biodiversity. We urgently need wilderness areas with limited human impacts as safe harbors for the biodiversity we depend on. At the same time, it’s futile to pretend that those areas experience no human impacts at all.

Scientific research helps find solutions for restoring habitat and protecting biodiversity while managing the impacts of humans. This includes research on how human activities alter the traits and resilience of existing species. For instance, Thomas Smith researches how climate change will affect biodiversity in Central Africa as species have to move to new habitats or adapt to avoid extinction. He and others used genomics to identify where a given species would be best adapted to future, warmer climates. Then, they worked with conservation officials to select areas for new parks that would best protect species.

In the Anthropocene, we need the Wilderness Act more than ever before, in part because humans’ myriad assaults on the environment have increased the value of minimally impacted land. Yosemite, Sequoia, and Kings Canyon National Parks welcome millions of annual visitors, and they serve an important—but entirely different—purpose than the areas the act protects, which are both repositories of nature and necessary places to study ecological processes.

When people—often with good intentions—invoke the act in ways that hamstring both effective federal management of public lands and scientific research, we’re left with the Wilderness Act being used as a bludgeon against effective natural resource management and a barrier to obtaining necessary scientific knowledge. As we face climate change’s unprecedented changes on our natural surroundings, we also have to rethink how we interpret the laws that protect those surroundings in novel and unexpected ways.

Aldo Leopold, the father of conservation biology, once said, “One of the penalties of an ecological education is that one lives alone in a world of wounds.” Leveraging the very best science and ecological knowledge gained from wild areas to become better stewards of our small planet is one way to help redress those wounds.

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