Climate change constitutionalism? Lessons from the United Kingdom

Issue title: Australia's New Climate Laws

Article type: Research Article

Authors: McHarg, Aileen

Note: [] University of Glasgow, <[email protected]>. I am grateful to Lee Godden, Jacqueline Peel, Colin Reid, Adam Tomkins, and two anonymous referees for their comments on earlier versions of this article. The usual disclaimer applies.

Abstract: Preventing dangerous climate change presents a significant political challenge. Extensive, urgent, and sustained political action is required to support necessary technological, economic, and behavioural changes. Yet the long-term, global, and uncertain effects of climate change, combined with the substantial short-term costs of mitigation action create what economists term a “credible commitment” problem, given the dominance of material considerations and short-term electoral cycles in political decision-making. Accordingly, building effective climate change law is not simply about devising appropriate measures to reduce emissions, but more fundamentally about instituting legal and political “regime change”. The UK Climate Change Act 2008 represents an important attempt to address the credible commitment problem on a domestic level. Not only does it impose long-term, legally binding emission-reduction targets, it also creates a so-called “carbon accounting” regime, designed to maintain government focus on meeting the targets. The Act involves a “pre-commitment strategy” which is intended to have a systemic and transformative effect on government action, and it has been described as having a “constitutional” significance. The aim of this article is to interrogate this claim to constitutional status. It discusses, first, whether it is appropriate to describe the Act as a constitutional measure and why this classification might matter. Secondly, it considers the likely impact of the Act's substantive and institutional/procedural provisions. Finally, it considers the wisdom of “climate change constitutionalism”, and asks whether this is an approach which ought to be emulated by other states.

DOI: 10.3233/CL-2011-047

Journal: Climate Law, vol. 2, no. 4, pp. 469-484, 2011