Probing the hidden depths of climate law: Analysing national climate change legislation

• Author: Stephen Minas,Eloise Scotford
• Published date: 01 April 2019
• Date: 01 April 2019
• DOI: http://doi.org/10.1111/reel.12259

ORIGINAL ARTICLE

Probing the hidden depths of climate law: Analysing national

climate change legislation

Eloise Scotford

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Stephen Minas

Correspondence

Email: eloise.scotford@ucl.ac.uk National governments that are committed to a social transition in the pursuit of climate

policy face a complex legal challenge in evaluating how their legal and regulatory architec-

tures support climate policy and in introducing new legal measures to implement their

Paris Agreement commitments. This article sets out a method for appraising how frag-

mented national climate‐relevantlawscombinetocreatean aggregated legal and regula-

tory landscape that frames and governs national responses to climate change. Appraising

this kind of landscape is a methodologically fraught exercise, considering that climate

change can intersect with many areas of law and regulation, which are all embedded within

the histories, legal doctrines and governance frameworks of particular legal systems. We

propose a tripartite method for this task –identifying ‘direct’or explicit climate laws, iden-

tifying ‘indirect’or implicit climate laws, and investigating legal cultures that inform and

express both types of climate‐related law. The article focuses on climate‐related legislation

in countries with lawmaking assemblies in proposing this approach, arguing that the

national scale and legislative processes are both particularly significant in evaluating climate

laws. This approach to climate law methodology can support both national climate plan-

ning and multilateral processes such as the Paris Agreement'sglobalstocktake.

1

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INTRODUCTION

Much has been written about the complex, multi‐level, multi‐scalar

and disruptive nature of climate law and climate governance.

1

Climate

change, inevitably, is a problem for which there is no neat jurisdictional

home, generating legal issues that cross boundaries and often disrupt

established legal norms and doctrines.

2

This article addresses one well‐

recognized aspect of this complexity –the difficulty of identifying ‘cli-

mate change law’within legal systems

3

–and illustrates that a careful

methodology is required to identify and evaluate law relevant to

climate policy within national legal systems. We propose the frame-

work for one such methodology, which is rooted in insights from legal

scholarship and offers a new approach for policymakers and legislators

who are concerned with the role of law in supporting national climate

policies. The article's analysis demonstrates that climate change is

intricately implicated in laws at the national scale and argues that

national and legal jurisdictional boundaries have particular significance

in defining and evaluating laws relating to climate change. It also

argues that legislation is a significant form of ‘climate change law’that

is worth examining in its own right, particularly in parliamentary sys-

tems of government. In the multi‐scalar, multi‐level architecture of cli-

mate governance, national laws –and legislation in particular –are an

important but often superficially understood site for the creation and

implementation of climate policy.

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1

See, e.g., K Bäckstrand and E Lövbrand (eds), Research Handbook on Climate Governance

(Edward Elgar 2015); H Bulkeley, Accomplishing Climate Governance (Cambridge University

Press 2015); J Peel, L Godden and R Keenan, ‘Climate Change Law in an Era of Multi‐level

Governance’(2012) 1 Transnational Environmental Law 245; HM Osofsky, ‘The Geography

of Climate Change Litigation: Implications for Transnational Regulatory Governance’(2005)

83 Washington University Law Quarterly 1789.

2

E Fisher, E Scotford and E Barritt, ‘The Legally Disruptive Nature of Climate Change’

(2017) 80 Modern Law Review 173.

3

JB Ruhl and JE Salzman, ‘Climate Change Meets the Law of the Horse’(2013) 62 Duke

Law Journal 975; HM Osofsky and J Peel, ‘The Role of Litigation in Multilevel Climate

Change Governance: Possibilities for a Lower Carbon Future?’(2013) 30 Environmental

and Planning Law Journal 303, 304–305.

4

This importance is recognized in studies of climate governance in particular countries or

political blocs that are critical to mitigation efforts or vulnerable to climate change impacts:

CP Carlarne, Climate Change Law and Policy: EU and US Approaches (Oxford University Press

2010); Bäckstrand and Lövbrand (n 1) section III (studies on climate governance in Brazil,

China, the European Union and the United States); D Held, C Roger and EM Nag, Climate

Governance in the Developing World (Wiley 2013).

DOI: 10.1111/reel.12259

RECIEL. 2019;28:67–81. wileyonlinelibrary.com/journal/reel

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