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Climate legislation is there to be used

We will hear lots about net-zero targets and tackling climate change in the coming weeks as COP26 arrives in Glasgow. Scotland has set itself the ambitious target of reducing emissions of all greenhouse gases to net zero by 2045. The rest of the UK, in common with most other countries, is targeting 2050.

Net zero, in its simplest form, refers to the balance between the amount of greenhouse gases produced and the amount removed from the atmosphere. Net zero is reached when the amount added is no more than the amount taken away.

There are big questions around whether net zero is sufficient to prevent rising temperatures, not to mention whether specific country targets are helpful when the impact of emissions has no respect for borders. Another big question is: if countries fail to hit their targets, can they be held to account? Scotland’s ambition to reduce emissions of all greenhouse gases to net-zero by 2045 was initially set out in the Climate Change (Scotland) Act 2009, then amended by the Climate Change (Emissions Reduction Targets) (Scotland) Act 2019.

The 2009 Act set a 2050 target of an 80 per cent reduction in emissions based on emissions levels in 1990, and an interim target of at least a 42 per cent reduction in emissions by 2020.

The target was amended to its more ambitious form in 2019 in light of the European Commission’s vision for the European Union to be carbon neutral by 2050. The amended legislation sets out interim emissions reduction targets for Scotland at 56 per cent (lower than 1990 levels) by 2020, 75 per cent down by 2030 and 90 per cent down by 2040, before the target of net-zero emissions by 2045 – effectively a 100 per cent reduction on the 1990 baseline. Are we on course? Put simply, no.

The most up-to-date statistics, issued in June 2021, relate to 2019 (the latest figures available). They show the emissions reduction target of 55 per cent was not met. The figure achieved was 51.5 per cent.

Despite the failure to meet the targets, there appears to be little accountability, at least from a legal perspective. There are only four reported cases concerning the Climate Change (Scotland) Act 2009, none of which focuses solely on the failure to meet emission reduction targets as a wider societal issue. One of the goals of COP26 is to tackle the climate crisis through collaboration between governments, businesses and civil society. Individuals and organisations within civil society, especially those with a specific interest in meaningful progress in tackling climate change, might consider how best they can collaborate to hold governments and other public bodies to account in terms of the legislative targets.

In Scotland, the 2009 Act (as amended by the 2019 Act) would be a good starting point. Importantly, the 2009 Act imposes a duty on public bodies to act in the way best calculated to contribute to the delivery of the emissions reduction targets. If this is not adhered to, a public body, including the Scottish ministers, could be challenged by way of judicial review in the Court of Session.

A case raised by the Urgenda Foundation (an environmental group) and private citizens against the State of the Netherlands was considered by the Hague Court of Appeal and Supreme Court of the Netherlands. Ultimately, Urgenda was successful and the State of the Netherlands was ordered to limit greenhouse gas emissions to 25 per cent below 1990 levels by 2020.

The government’s previous pledge was to reduce emissions by 17 per cent. As part of its judgment, the Supreme Court considered the application of the European Convention on Human Rights and held that there is an obligation on the state to take measures concerning environmental hazards that threaten large groups or the population as a whole, even if the hazards only materialise over a long period.As COP26 rolls into Glasgow, perhaps the focus should be less about whether Scottish legislation goes far enough and more about how Scottish ministers and public bodies might be held to account to meet reduction goals.

This article first appeared in The Scotsman on Monday 25 October.