Emerging National Climate Legislation in EU Member States: In Search of Proper Legislative Approaches

Abstract

This article discusses the development of national climate legislation in EU Member States, taking the UK and France as particular case studies. The authors presuppose that the question how national climate legislation should look like and what its content should be cannot be answered with providing only one model: much will depend on the national legal system, the structure of the state, the national legal culture and other particular circumstances of a certain country. There is however a common feature for the national governments in the EU, which is the international obligation to provide climate programmes, based on the UNFCCC and the Kyoto Protocol. Next to that, these national governments need to comply with the particular obligation of the Aarhus Convention to provide public participation to such programmes. Moreover, national governments should develop a policy about how to distribute the national room for emissions for the non EU ETS sector (following the EU effort sharing decision). This could lead to the adoption of a national “emission distribution plan.”

Next to these theoretical observations, the article explores what the current legislative practice is in the UK and in France. It is analyzed that, in essence, the UK takes primarily a sharply focused top-down approach, with a Climate and Energy Ministry and a Climate Change Act with emission budgets, while France follows a more holistic approach aiming at sustainable development, combined with bottom up approaches like the obligation for decentralized governments to develop programmes aiming at climate mitigation and adaptation, energy and air pollution.

The article concludes that there is a need for the national governments of EU Member States to consider how to build a legislative framework for the adoption of climate programmes or plans, together with the need to consider whether the adoption of a national emission distribution plan would be valuable.

Keywords: Climate Law, public participation, climate programmes, Climate change, Climate protection, Climate change policy, Climate legislation, National climate legislation, France, United Kingdom, mitigation, adaptation, EU environmental law, EU climate law, Aarhus Convention, UNFCCC, Kyoto Protocol

JEL Classification: H1, H7, K19, K20, K23, K30, K40, I18, K32, Q28, Q25, Q40, Q48, Q29