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

AuthorStephen Minas,Eloise Scotford
Published date01 April 2019
Date01 April 2019
Probing the hidden depths of climate law: Analysing national
climate change legislation
Eloise Scotford
Stephen Minas
Email: 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 climaterelevantlawscombinetocreatean 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 director explicit climate laws, iden-
tifying indirector implicit climate laws, and investigating legal cultures that inform and
express both types of climaterelated law. The article focuses on climaterelated 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.
Much has been written about the complex, multilevel, multiscalar
and disruptive nature of climate law and climate governance.
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.
This article addresses one well
recognized aspect of this complexity the difficulty of identifying cli-
mate change lawwithin legal systems
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 lawthat
is worth examining in its own right, particularly in parliamentary sys-
tems of government. In the multiscalar, multilevel 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.
© 2018 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
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 Multilevel
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.
E Fisher, E Scotford and E Barritt, The Legally Disruptive Nature of Climate Change
(2017) 80 Modern Law Review 173.
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, 304305.
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;28:6781.

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