The Content of the Act

Muinzer, Thomas L.

doi:10.1007/978-3-319-94670-2_2

Thomas L. Muinzer²

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Abstract

This chapter examines the content of the Climate Change Act, doing so in a way that makes its complex legislative design clear and intelligible for the reader. It outlines and explains the framework’s key requirements, obligations and procedures, and drills into aspects of particular interest or complexity. While the commentary may be drawn on to useful effect by lawyers seeking to familiarise themselves with the CCA, a primary objective is also to provide the first detailed general understanding of the content and design of the CCA for non-lawyers.

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Notes

1.
See CCA, ss.71–75 (as originally enacted). See also CCA, s.76, ‘Collection of household waste’ . These original sections were targeted at England and Wales , rather than Northern Ireland and Scotland .
2.
CCA (as originally enacted), Schedule 5 Para 2 (quoting changes made by this Schedule to the Environmental Protection Act 1990 ).
3.
See Localism Act 2011 , ss.47(a)–(b), 240(1)(e), Schedule 25 Part 8.
4.
The main body of a UK Act is conventionally comprised of ‘sections’, whereas Schedules that appear at the end of legislation are commonly composed of numbered ‘paragraphs’.
5.
See further CCA, s.76; Environmental Protection Act 1990 , s.46(11).
6.
See further ibid. (CCA, s.76, amending the Environmental Protection Act 1990 , s.46; these changes apply to England and Wales only).
7.
CCA, Schedule 6 Para 10(4).
8.
CCA, s.78, Schedule 7.
9.
DfT, Guidance: Renewable Transport Fuels Obligation (HM Government, 2012), unpaginated version. See further ‘The Renewable Transport Fuel Obligation’ , pp. 5–6, in DfT, RTFO Guidance Part One, Process Guidance (HM Government, 2017).
10.
Renewable Transport Fuel Obligations Order 2007 , S.I. 2007 No. 3072.
11.
UK Government has since closed the Agency down, absorbing its functions into the Department for Transport in 2011.
12.
Energy Act 2004 , Part 2, Chapter 5, ss.124–132, ‘Renewable Transport Fuel Obligations’ .
13.
CCA, s.88(1)–(2).
14.
See Clean Neighbourhoods and Environment Act 2005, s.105(2). The Pollution Prevention and Control Act 1999 permits fines on summary conviction of an offence, and these changes increased the quantum of the fines that can be applied.
15.
Environmental Permitting (England and Wales ) Regulations 2007. The change helps to make applicable penalties comparable with penalties arising under the Waste Management Licensing Regulations 1994.
16.
Environmental Permitting (England and Wales ) Regulations 2010. Over the course of these changes, the 2010 Regulations repealed CCA, s.88(2); see further Schedule 28, Regulation 109 of the 2010 Regulations. After being amended 15 times in their own right, the 2010 Regulations have since been consolidated under the Environmental Permitting (England and Wales ) Regulations 2016.
17.
See further ‘Carbon Emissions Reduction Targets’ , below, within section 2 under the heading ‘Part 5 “Other Provisions”’.
18.
Quoting CCA, s.86(1).
19.
CCA, s.86(6)(a)–(b).
20.
See most particularly ‘Part 5 “Other Provisions”’ and ‘Part 6 “General Supplementary Provisions”’ below, under heading 2.
21.
CCA, s.92(1)(a)–(f).
22.
See CCA, s.24(1).
23.
CCA, s.24(1)(g), s.24(2).
24.
CCA, s.92(2)–(3).
25.
See CCA, ss.24–25, ‘Targeted greenhouse gases ’; CCA, s.1, s.27(1).
26.
CCA, s.97. Greenhouse gas emissions are ‘measured or calculated in tonnes of carbon dioxide equivalent’; CCA 2008, s.93(1).
27.
CCA, s.29(1)(a)–(c).
28.
CCA, ss.4–10, ss.26–28, s.1(1), s.4(1)(a). While the emphasis falls on securing the CCA’s targets via domestic reductions, the UK can also acquire international credits in order to ease the domestic burden, with a limit being placed on the proportion of credits that can be of international origin in a given budgetary period . The Secretary of State is accorded powers to place limits on carbon unit use at CCA, s.11.
29.
The term ‘carbon unit’ is defined at CCA, s.26(1).
30.
CCA, s.4(1)(a). Article 3(1) set a 55,000,000 carbon units limit for the net UK carbon account covering 2018–2022.
31.
See CCA, s.5(4). The change was made by the Climate Change Act 2008 (2020 Target, Credit Limit and Definitions) Order 2009, Arts 1 and 2(3).
32.
Climate Change Act 2008 (2020 Target, Credit Limit and Definitions) Order 2009 (S.I. 2009/1258).
33.
CCA, s.4(2)(a)–(b).
34.
CCA, s.11.
35.
This said, it is to be noted that Scotland has opted for an annual reporting regime, which has operated relatively successfully to date; see further Chapter 3.
36.
CCA, s.5(2).
37.
Drawn from CCA, s.17(1)–(5).
38.
See, for example, DECC’s Impact Assessment for the Level of the Fifth Carbon Budget (HM Government, 2016). This and similar documents frequently refer to ‘banking’ and ‘borrowing’ practices.
39.
CCA, s.19(1).
40.
CCA, s.21(1).
41.
CCA, s.21(2).
42.
CCA, s.21(4).
43.
CCA, s.23(1)(a)–(b), s.23(6).
44.
‘Both houses of Parliament’ indicate the House of Commons and House of Lords that comprise UK Parliament . See further CCA, s.91.
45.
CCA, s.23(2).
46.
CCA, s.26(1)(a)–(c).
47.
CCA, s.26(2)–(4).
48.
CCA, s.27(1)(a)–(b).
49.
CCA, s.27(2). See also CCA, s.11, entitled ‘Limit of use on carbon units ’.
50.
CCA, s.26(2)–(4), s.27(3)–(5), s.28.
51.
CCA, 29(1)(a)–(c). Emphasis added.
52.
CCA, s.29(2).
53.
See further Chapter 3.
54.
On the CCC , see further below.
55.
CCA, s.10(2)(f).
56.
CCA, s.10(2)(a)–(e) and (g)–(i).
57.
CCA, s.14.
58.
CCA, s.19.
59.
CCA s.1(2)(a).
60.
CCA, s.1(2)(b).
61.
CCA, s.25(1).
62.
CCA, s.25(4).
63.
The baseline is set by Article 4(2)(b) of the UNFCCC .
64.
CCA, s.1(1), s.5(1)(a).
65.
Strictly speaking, under the terms of UK constitutional law there is technically a single office of Secretary of State ; however, in practice responsibility is delegated to individual Secretary of States (as noted in the main text). See further A.J. Simcock, ‘One and Many—The Office of Secretary of State’ 70(4) Public Administration 535 (1992). The author is grateful to Prof Richard Macrory QC for drawing attention to this source over the course of research.
66.
See D. Castelvecchi, ‘New Brexit Government Spells Shake-Up for Science: Theresa May Promotes a Former Science Minister and Abolishes Climate-Change Department’ 535(7612) Nature 331 (2016). While DECC took the lead on mitigation , the Department for Environment, Food and Rural Affairs also had some key responsibilities in the area of adaptation .
67.
See further the discussion of these issues in Chapter 1. It is notable that the Northern Irish courts have drawn on the CCA over the course of wrestling with tricky issues evoked by statutory duties centring on appropriate residential accommodation being made available by pertinent authorities to a hospital patient suffering from a learning disability, see: In the Matter of an Application By JR 47 for Judicial Review [2013] NIQB 7. The CCA was evoked over the course of addressing concerns surrounding the way in which the courts ought to approach complex issues underpinning statutory duties: see further McCloskey J.’s comments at ibid., Para [35]. In his learned judgement, McCloskey J. draws attention to the fact that Lord Hope has stressed in an earlier case entitled R (G) v Barnett LBC ([2004] 2 AC 208) that one of the central features of target duties is that they are ‘concerned with general principles and not designed to confer absolute rights on individuals’; see ibid., Para [35].
68.
See, e.g., D. Feldman, ‘Legislation Which Bears No Law’ 37(3) Statute Law Review 212 (2016).
69.
C.T. Reid , ‘A New Sort of Duty? The Significance of “Outcome” Duties in the Climate Change and Child Poverty Acts’ Public Law 749 (2012), p. 749.
70.
R. (on the application of People & Planet) v HM Treasury [2009] EWHC 3020 (Admin); quoting Mr Justice Sales, ibid., Para [11].
71.
R. (on the application of Friends of the Earth) v Secretary of State for Energy & Climate Change [2009] EWCA Civ 810.
72.
The Warm Homes and Energy Conservation Act 2000, s.2. Note, however, that in this case the duty in the legislation was qualified by the term ‘as far as reasonably practicable’, whereas no such qualification appears in the CCA, thus arguably giving the CCA duties a significantly harder edge.
73.
See R. (on the application of Friends of the Earth ), supra, n. 71, Para [18] of Lord Justice Maurice Kay’s lead judgement.
74.
Joint Committee on the Draft Climate Change Bill , Oral and Written Evidence (second report); Draft Climate Change Bill (2006-7, HL 170-II, HC 542-II) 239–240 (Evidence of Christopher Forsythe to the Joint Committee); see also J. Church, ‘Enforcing the Climate Change Act’ 4(1) UCL Journal of Law and Jurisprudence 109 (2015), p. 116.
75.
CCA, s.13(1).
76.
CCA, s.13(2)(a)–(b).
77.
Preston New Road Action Group v Secretary of State for Communities and Local Government Court of Appeal (Civil Division) [2018] EWCA Civ 9.
78.
Preston New Road Action Group v Secretary of State, ibid., Para [72] (Lord Justice Lindblom).
79.
R. (on the application of Drax Power Ltd) v HM Treasury [2016] EWHC 228 (Admin).
80.
R. (on the application of Drax Power Ltd), ibid., Para [12]. See also Solar Century Holdings Limited & Others v Secretary of State for Energy & Climate Change [2014] EWHC 3677 (Admin), Para [16] (Mr Justice Green).
81.
The Queen on the Application of London Borough of Hillingdon & Ors v Secretary of State for Transport v Transport for London [2010] EWHC 626 (Admin).
82.
The Queen on the Application of London Borough of Hillingdon & Ors, ibid., Para [52].
83.
For detail, see the court ruling itself, and see further the discussion in R. Macrory Regulation, Enforcement and Governance in Environmental Law (2nd edition, Hart, UK, 2014), pp. 270–271.
84.
Section 3 of the Judicial Review Claim Form that was filed by the claimants at the High Court summarises this matter as follows: ‘Details of the decision to be judicially reviewed[:]… The ongoing failure of the Secretary of State for Business, Energy and Industrial Strategy not to exercise his power under section 2 of the Climate Change Act 2008 to amend the percentage figure set out in section 1(1) of that Act’.
85.
‘Irrationality’/‘unreasonableness’ amounts to a special technical category of law that can be evoked in the UK in order to judicially review the behaviour of public actors.
86.
Quoting section 7 of the Judicial Review Claim Form, which the author obtained from the courts service.
87.
The Claimants have presented five grounds to the High Court in seeking judicial review of the Secretary of State’s purported failure to revise the 2050 target: (1) it is ultra vires, because it frustrates the legislative purpose of the CCA; (2) it is based on an error of law regarding the objective of the Paris Agreement; (3) it is irrational, because it fails to take into account and / or inappropriately weighs considerations including the scientific risks of global climate change and developments in international law, most notably in relation to the Paris Agreement; (4) it violates the Human Rights Act 1998; (5) it breaches the public sector equality duty set out in Section 149 of the Equality Act 2010. Concerning point (4), relating to human rights, it is claimed that: under the Human Rights Act 1998 , Article 2 (‘Right to Life ’), Article 8 (‘Right to Respect for Private and Family Life ’), and Article 1 of Protocol 1 (‘Protection of Property ’) have been breached individually in their own right and jointly when read with Article 14 (concerning ‘Prohibition of Discrimination ’). [Immediately prior to this book going to print, Plan B’s application has been refused by Mr Justice Supperstone at the High Court, see: R (Plan B Earth and Others) v. Secretary of State for Business Energy and Industrial Strategy (Defendant) and the Committee on Climate Change (Interested Party) [2018] EWHC 1892 (Admin). The author has been informed by Plan B that it will appeal this decision.]
88.
CCA, Schedule 1 Para 27. It is to be noted that there is no general power granted to government Ministers to direct the CCC , which contrasts with certain other operational non-departmental public bodies, including the Environment Agency (the primary body responsible for environmental regulation and protection in England ).
89.
CCA, ss.33–35.
90.
CCA, s.33.
91.
CCA, s.34.
92.
The CCC ’s advisory obligations have been widened slightly since the creation of the CCA: see the Infrastructure Act 2015, s.49, which places an obligation on the CCC in its own right to advise the government on the impact of onshore petroleum policy choices on UK decarbonisation .
93.
CCA, s.36(1).
94.
CCA, s.36(1).
95.
See CCA, ss.41–42.
96.
M. Lockwood, ‘The Political Sustainability of Climate Policy: The Case of the UK Climate Change Act’, 23(5) Global Environmental Change 1339 (2013), p. 1346.
97.
S. Fankhauser, A. Averchenkova, J. Finnegan, 10 Years of the UK Climate Change Act (Grantham Research Institute and London School of Economics, 2018). p. 2.
98.
Fankhauser et al., supra n. 52, p. 5.
99.
CCA, s.39(2)(a)–(e).
100.
CCA, s.39(3)(b).
101.
CCA, s.39(3)(c).
102.
CCA, s.38(1)(a)–(d).
103.
CCA, s.38(2)(a). See also CCA, s.48 on the CCC ’s duty to provide advice on trading scheme regulations. Trading schemes are discussed further below.
104.
CCA, s.38(2)(b).
105.
See CCA, Schedule 1 Paras 1–2.
106.
CCA, Schedule 1 Paras 1(4)–1(5).
107.
CCA, Schedule 1 Para 16, ‘The Adaptation Sub-Committee’ .
108.
CCA, Schedule 1 Para 16(10).
109.
CCA, Schedule 1 Para 15.
110.
CCA, s.57.
111.
CCA, s.59.
112.
R. (on the application of Griffin) v Newham LBC Divisional Court [2011] EWHC 53 (Admin).
113.
See most particularly R. (on the application of Griffin), ibid., Para [31] of Lord Justice Pill’s lead judgement, and Para [38] dismissing this element of the application.
114.
Consider, for example, the substantial effect that the EU ’s Emissions Trading Scheme (‘ETS’) has had in driving down emissions from energy generation across the EU . See further: Council Directive 2009/29/EC [2009] OJ L140/63 (the ETS Directive ).
115.
CCA, s.95(1)(a)–(d).
116.
CCA, s.47.
117.
The definition is unhelpfully vague insofar as many sorts of schemes may, for example, operate by ‘limiting or encouraging the limitation of activities that consist of the emission of greenhouse gas ’ (point (a) of the definition quoted immediately below in the main text) without amounting to being trading schemes. For clarity on the form and nature of the sorts of trading schemes that tend to predominate in the context of climate and energy governance, see J. Robinson, J. Barton, C. Dodwell, M. Heydon, L. Milton, Climate Change Law: Emissions Trading in the EU and the UK (Cameron May, London, 2007).
118.
CCA, s.44(2)(a)–(b). In addition to being vague (ibid.), the combined phrasing of the following elements at point (b) seems grammatically unsatisfactory: ‘encouraging activities that consist of… to reductions in greenhouse gas emissions’.
119.
CCA, s.45.
120.
See CCA, s.45(1)(a).
121.
For further detail on these important schemes, see M. Faure, M. Peeters (eds.), Climate Change and European Emissions Trading (Edward Elgar, Cheltenham, 2008).
122.
‘This Part applies to activities carried on in the United Kingdom, regardless of where the related emissions, reductions or removals of greenhouse gas occur’, CCA, s.45(3).
123.
For targeted exploration of the relationship between national and devolved authorities within the parameters of the CCA, see further T.L. Muinzer, ‘Does the Climate Change Act 2008 Adequately Account for the UK’s Devolved Jurisdictions?’ 25(3) European Energy and Environmental Law Review 87 (2016).
124.
CCA, s.47(7).
125.
See further CCA, Schedule 2 Para 21.3.b–d.
126.
See CCA, s.87, read in conjunction with ss.26–27.
127.
See particularly CCA, Schedule 2 Para 21.3.e.
128.
CCA, Schedule 2 Para 28.
129.
CCA, Schedule 2 Para 29.
130.
See CCA, Schedule 2 Para 30. ‘Summary’ convictions, while sometimes involving very serious issues, generally involve less severe offences than ‘indictments’; the CCA includes further provision for punishment on indictment at Schedule 2 Para 30.7.
131.
That is, the definition of a ‘trading scheme’ stated at CCA, s.44(2)(a).
132.
See CCA, Schedule 2 Paras 2–4.
133.
CCA, Schedule 2 Para 5(1).
134.
CCA, Schedule 2 Para 7(1)(a)–(b).
135.
CCA, Schedule 2 Para 8.
136.
CCA, Schedule 2 Para 10.
137.
CCA, Schedule 2 Para 11; quoting from Para 11(1)(b).
138.
That is, the European Union’s Emissions Trading Scheme established under the Emissions Trading Scheme Directive (as noted earlier in Chapter 1 and also raised in Chapter 3).
139.
The Kyoto Protocol is discussed in Chapter 3.
140.
That is, the definition of a ‘trading scheme’ stated at CCA, s.44(2)(b).
141.
CCA, Schedule 2 Para 16.
142.
CCA, Schedule 2 Para 17(1).
143.
CCA, Schedule 2 Para 19(1).
144.
See generally CCA, Schedule 3 Parts 1 and 2.
145.
CCA, Schedule 3 Part 3, ‘Power to Make Provision by Order in Council’.
146.
Per the Glossary on the official UK Parliament website: ‘Orders in Council are used when an ordinary statutory instrument would be inappropriate, such as for transferring responsibilities between government departments. They are issued by and with the advice of HM Privy Council and are approved in person by the monarch ’. http://www.parliament.uk/site-information/glossary/orders-in-council/.
147.
See CCA, Schedule 3 Para 9(2)(a)–(b).
148.
CCA, Schedule 4 (quoting from the title of the Schedule).
149.
These paragraphs were revoked by the CCA itself, at CCA, s.50(2), which placed a time-bar on Paras 1–5. Schedule 4 Para 6, which remains active law, concerns disclosure of information; it permits certain information relating to trading schemes to be shared where necessary amongst environmental authorities or a trading scheme’s administrator.
150.
UK Government has signalled that it intends to close the scheme after the 2018–2019 compliance year.
151.
CCA, s.56(1).
152.
CCA, s.56(2).
153.
CCA, s.100(5).
154.
DEFRA , UK Climate Change Risk Assessment: Government Report (HM Government, 2012).
155.
CCA, s.56(3). It is accepted that delays may arise in publishing reports, but that the Secretary of State must give reasons for any delay and specify when the report will be completed; CCA, s.56(4).
156.
CCA, s.57(1).
157.
CCA, s.58, ‘Programme for Adaptation to Climate Change’.
158.
CCA, s.58(1)(a)–(c). In Northern Ireland , tailored regional adaptation programmes are to be produced along similar lines by Northern Ireland’s Devolved Administration and brought before the Northern Ireland Assembly at regular intervals; CCA, s.60. Special criteria relating to aspects of reporting on adaptation in Wales in the context of devolved Welsh functions is also set out at CCA, ss.66–69.
159.
CCA, s.58(1).
160.
CCA, s.59.
161.
This applies to both climate change impact reports (CCA, s.56(6)) and adaptation programmes (CCA, s.58(4)).
162.
CCA, ss.61–62.
163.
See CCA, s.64(1)–(2).
164.
See most importantly Environmental Protection Act 1990 , s.60A and Schedule 2AA, both entitled ‘Waste reduction schemes ’.
165.
See further Environmental Protection Act 1990 , Schedule 2AA, where the rules are set out.
166.
CCA, s.76, amending the Environmental Protection Act 1990 , s.46. These changes apply to England and Wales .
167.
The carrier bag provisions here do not extend to Scotland ; see CCA, s.99(3). Scotland has a levy of its own, however, applied by the Single Use Carrier Bags Charge (Scotland) Regulations 2014, which were issued under powers made available to the Scottish Ministers under ss.88, 89, 90 and 96(2) of the Climate Change (Scotland) Act 2009 . Scotland’s 2009 Act is considered in Chapter 3.
168.
CCA, s.77.
169.
CCA, s.77, Schedule 6.
170.
CCA, s.78, Schedule 7; Schedule 7 amends the Energy Act 2004 , Chapter 5, Part 2.
171.
It is to be noted that the RTFO is rolled into the portfolio of UK Government ’s Department for Transport , and as such the pertinent Secretary of State indicated in these changes to the Energy Act 2004 is the Secretary of State for Transport . This differs from the ‘Secretary of State’ imbued with primary responsibilities under the CCA’s main regime, namely the Secretary of State for Business, Energy and Industrial Strategy.
172.
See further CCA, Schedule 7, ‘Renewable Transport Fuel Obligations’ .
173.
CCA, s.79, Schedule 8.
174.
This mechanism does not apply to Northern Ireland ; see CCA, s.99(4).
175.
See CCA, Schedule 8.
176.
See further CCA, ss.80–82. The transfer of power between the national and Welsh authorities required amendment to the Climate Change and Sustainable Energy Act 2006. Elements relating to local authorities in Wales contained in CCA, s.81 are marked ‘prospective’, meaning they are not (yet) in law at the time of writing.
177.
See CCA, ss.83–84.
178.
CCA, s.85.
179.
CCA, s.86. See further the discussion of the civil estate above, in part 1 to this chapter.
180.
CCA, s.87. This mechanism permits the national authorities , namely UK Government and the Devolved Administrations, to offset greenhouse gas emissions by acquiring and disposing of carbon units directly.
181.
This required the CCA to amend the Clean Neighbourhoods and Environment Act 2005, s.105(2). The amendment is applied at CCA, s.88. The 2005 Act extends only to England and Wales .
182.
CCA, s.89, s.99.
183.
CCA, s.99(2)(a).
184.
CCA, ss.90–91.
185.
CCA, ss.92–98.

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Stirling Law School, University of Stirling, Stirling, UK
Thomas L. Muinzer

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Muinzer, T.L. (2019). The Content of the Act. In: Climate and Energy Governance for the UK Low Carbon Transition. Palgrave Pivot, Cham. https://doi.org/10.1007/978-3-319-94670-2_2

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DOI: https://doi.org/10.1007/978-3-319-94670-2_2
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