The Disappointment of Climate Change Legislation: Investigating Tensions with the Rule of Law

22 Pages Posted: 24 Aug 2022 Last revised: 26 Aug 2022

See all articles by Eloise Scotford

Eloise Scotford

University College London - Faculty of Laws

Date Written: August 22, 2022

Abstract

National governments around the world have introduced framework climate change laws, institutionalising climate policy commitments at the domestic level and coordinating national policymaking around decarbonization obligations. Such laws are impressive expressions of policy ambition due to their legal form. At the same time, these laws are collectivist statutes that pose a jurisprudential problem in legal cultures rooted in liberal rule of law philosophies. Framework climate change laws authorise sweeping governmental actions that can radically reorder individuals’ lives and infringe incumbent rights. Their mandates call for executive action often beyond the reach of judicial review and, at times, express ambitions that exceed actual state capacity. Drawing on the example of the UK Climate Change Act 2008, this paper investigates tensions between framework climate change laws and four key principles of the rule of law—provision of prospective certainty, independent judicial review of state action, deliverability, and (on some accounts) commitment to fundamental human rights. Bringing these tensions to the fore, the paper defines a path to conceptualising framework climate change laws and their place in western legal systems and to explaining the frustration and controversy they often bring in their wake.

Keywords: climate change law, public law, rule of law

JEL Classification: K32

Suggested Citation

Scotford, Eloise, The Disappointment of Climate Change Legislation: Investigating Tensions with the Rule of Law (August 22, 2022). Faculty of Laws University College London Law Research Paper No. 12/22, Available at SSRN: https://ssrn.com/abstract=4197112 or http://dx.doi.org/10.2139/ssrn.4197112

Eloise Scotford (Contact Author)

University College London - Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

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