The Disappointment of Climate Change Legislation: Investigating Tensions with the Rule of Law
22 Pages Posted: 24 Aug 2022 Last revised: 26 Aug 2022
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: Suggested Citation