Great Lobbying, But Not Good Law

Negotiators from nearly 180 countries gathered in Barcelona recently for the final round of talks before next month’s COP15 conference in Copenhagen. Their principal task was to resume work on the draft agreement to replace the 1997 Kyoto Protocol. Negotiators were tasked with whittling down a thick draft document full of competing proposals, disputed wording and minority-backed options, to craft a workable agreement that can be accepted in Copenhagen.
A consistent sub-theme was how to translate high level agreements into deliverable results at national or state level. Close attention is paid to existing legislation, such as the UK’s Climate Change Act 2008, and to proposals under active discussion, such as carbon tax in France and Ireland. Comparing, and borrowing from, existing legislative drafting is a useful exercise. However, it pays to recognise that cutting edge legislation can be a triumph for lobbyists, but not for statutory draftsmen.
In the UK the Greater London Authority took the lead in demanding specific duties, and corresponding powers, in respect of climate change mitigation and adaptation. Together with a series of bills presented by individual members of Parliament, the Greater London Authority Act 2007 pushed climate change towards the top of the political agenda. It was a crucial precursor to Climate Change Act 2008.
The GLA Act 2007 defines climate change in a way that asserts the direct impact of human activity. It reads:
(a)     ‘climate change’ means changes in climate which are, or which might reasonably be thought to be, the result of human activity altering the composition of the global atmosphere and which are in addition to natural climate variability; and
(b)     ‘changes in climate’ includes a reference to changes in climate which are reasonably expected, or might reasonably be expected, to happen or which are reasonably thought to be happening or to have recently happened.
The definition undoubtedly represented a significant ‘win’ for lobbyists and environmental pressure groups. As well as securing an explicit statutory recognition that climate change is, to some extent, directly referable to human activity, the GLA Act 2007 for the first time placed climate change adaptation on an equal footing with climate change mitigation. That, in effect, acknowledged the existence of ‘locked in’ climate change stemming from greenhouse gases already in the global atmosphere and beyond the scope of climate change mitigation measures.
While lobbyists and pressure groups toasted their success, others had to grapple with the legal difficulties. Under the GLA Act 2007 the Mayor’s duty is to publish a strategy for adapting to ‘climate change’ as defined. While many of the impacts identified by the UK Climate Impacts Programme might be attributable to changes in the composition of the global atmosphere, it is arguable that others, including stress on water resources or the urban heat island effect, should be attributed wholly or in part to other causes (e.g. demographics, planning policies, changes in land use).  Consequently, any action relying on the Mayor’s statutory duty may be open to challenge on grounds of causation.
The definition also requires a complex (and possibly unattainable) distinction between ‘natural climate variability’ and any additional changes which are the result of human activity.   For practical purposes (e.g., the design, construction and energy performance of buildings) that exercise would be sterile. For buildings and infrastructure the objective must be climate change resilience. They must be able to withstand and be comfortably operable in the full range of climate conditions they are likely to encounter within their design life. For commercial buildings, that may be 50 – 70 years. For infrastructure it can be considerably longer. In that context, a focus on specific causation is not helpful. Increased flood risk, summer heat waves or intense winter storms might fall either side of, or straddle, the divide between ‘natural climate variability’ and ‘additional’ impacts due to human activity. Anyone facing the consequences of design, construction or use that has failed to take account of projected climate conditions would be understandably bewildered by a legal debate where liability depended identifying and quantifying the ‘additional’ impact falling within a definition of the type found in the GLA Act 2007.
Strikingly, the UK Climate Change Act 2008 contains no definition of ‘climate change’. Rather, it establishes a committee of experts to evaluate evidence and to make recommendations to national, regional and municipal authorities. Those recommendations are concerned with the risks and effects projected by bodies such as the UK Climate Impacts Programme.  Duties in the 2008 Act are flexible, and are designed to reflect and meet the best available evidence on climate change in its broadest sense – which may well include both natural variation and man-made amplification. 
The UK experience provides useful guidance, both positive and negative, for legislative drafting to address any global agreements reached at (or after) Copenhagen. The principle of ‘man-made’ climate change has been fully incorporated into the reports of authoritative international bodies such as the Intergovernmental Panel on Climate Change and the UNFCCC. At national level, climate change impact data is becoming increasingly detailed, and is moving away from broad scenarios to detailed, probabilistic analysis. Consequently, legislation intended to deal with climate change impacts should avoid definitions that require fine distinction between ‘types’ of climate change. In particular, duties or powers that rely on a distinction between ‘natural’ and ‘man made’ elements of climate change would simply invite sterile, legalistic argument and a relatively simple search for loopholes.