Leiden Law Blog

Change the system, not the climate: From the perspective of climate change law

Posted on by Haiqing Hao in Public Law
Change the system, not the climate: From the perspective of climate change law

The headline ‘Hottest Summer in History’ appears in the news almost every summer. In 2018, the temperature in the Arctic Circle reached 32℃ and the Netherlands also experienced its hottest summer in recent decades. Undoubtedly, the climate around the world is changing. The public has voiced their serious concerns about this issue. On 10 March 2019, more than 40,000 people marched in Amsterdam, calling for the Dutch government to take more effective measures to mitigate climate change. And Dutch pupils have held two other demonstrations on the same theme since February this year. Against this backdrop of social concern about climate warming, legislation addressing climate change has permeated global political discourse. This blog aims to provide an overview of climate change law and present the latest developments.

International conventions on climate change

The United Nations Framework Convention on Climate Change (UNFCCC, 1992) was the first international convention aimed at reducing greenhouse gas emissions and slowing down global warming. The signing of UNFCCC marked the beginning of international legislation on climate change. The Kyoto Protocol (1997) and the Paris Agreement (2015) were considered two other major milestones in international climate change legislation. Up to March 2019, 195 UNFCCC members had signed the Paris Agreement, of which 185 members had become parties. The Paris Agreement is the first comprehensive climate agreement with the largest number of participating countries in the world.

The 2018 United Nations Climate Change Conference, the 24th Conference of the Parties to UNFCCC (COP24), was held from 2 to 15 December 2018 in Katowice, Poland. The greatest achievement of the conference was the unanimous adoption of the provisions of the Paris Agreement. Although the proposal to welcome the Intergovernmental Panel on Climate Change’s (IPCC) Special Report on Global Warming of 1.5°C was blocked by the governments of four countries (the gas/oil-producers USA, Russia, Saudi Arabia and Kuwait), it was accepted by the majority of countries and written in the final decision of 1/CP.24 (the final wording was a compromise: ‘welcomes the timely completion’). However, another essential subject of establishing the rules for a global carbon market was postponed until the next conference of the parties (COP25) in Chile at the end of 2019 due to opposition from Brazil.

Climate change law in China and the United States

Although it was Chinese President Xi Jinping and former US President Barack Obama who jointly led the signing of the Paris Agreement in 2015, President Donald Trump announced his decision to withdraw the US from the Paris Agreement in June 2017. The earliest effective date of withdrawal for the US would be November 2020. In practice, the policy that is contrary to the Paris Agreement had been carried out and no positive climate change legislation has been enacted in the United States in recent years.

In contrast, the Chinese government’s attitude towards climate change is very active and responsible. China took on a leadership role at the Katowice climate summit with the opportunity offered by the US stepping back. By the end of the negotiations, China had even agreed to adopt a globally unified carbon emission reporting system abandoning the differential responsibility between developing and developed countries.  

Currently, the Ministry of Ecology and Environment is the Chinese government agency responsible for mitigating climate change. Reducing carbon emissions was prescribed as an important indicator for assessing the work of local governments. Each year the Chinese government publishes a report on China’s policies and actions for addressing climate change. 

In 2015, the Climate Change Division of the National Development and Reform Commission began seeking advice from the business community and NGOs on the Law on Climate Change (Preliminary Draft). In November 2011, China officially launched the carbon emission trading system in seven pilot provinces and cities with local regulations. On 19 December 2017, the national carbon emissions trading system officially started running with the power industry being taken as a breakthrough. On 3 April 2019, the Ministry of Ecology and Environment announced the Interim Regulation on the Administration of Carbon Emission Trading (Consultation Draft) to extensively solicit ideas from the public. The announcement of the Regulation is an indication of the tremendous progress that has been made in climate change legislation in China.

Climate change law in the European Union

As the initiator of the international climate negotiations, the EU has played a leading role in global emission reduction. In 2000, the European Commission established the European Climate Change Programme (ECCP) that aimed to formulate the best policy for climate change mitigation in the Member States and environmental organisations.

The European Union Emissions Trading Scheme (EU ETS)officially came into force on 1 January 2005 and would become the most influential emissions trading system. EU ETS was recognised as a good sample of compulsory carbon emissions trading and provided practical experience to other countries. The legal system includes Directive 2003/87/EC, Directive 2004/101/EC and the landmark Directive 2008/101/EC of 19 November 2008 that aimed at the reduction of the impact of international civil aviation on climate change. Following the signing of the Paris Agreement, the EU enacted Directive 2018/410 of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments.

In the Netherlands, Urgenda, a foundation promoting a fast transition towards a sustainable society, won an appeal in a historic climate case on 9 October 2018. The Hague Court of Appeal upheld the groundbreaking 2015 decision of the District Court. The Court had ordered the Dutch Government to reduce its greenhouse gas emissions by 25% by 2020 compared to 1990 levels and ruled that failing to do so would amount to a violation of the rights of Dutch citizens. The Urgenda climate case revealed the intersection between carbon emissions and the protection of human rights, which has a significant influence in climate change case law.

Designing and implementing climate change legislation has not been a straight forward or easy process. As the two largest carbon emission countries, China and US should be actively promoting the formulation of climate change law. However, only a few states in the US have enacted local climate change legislation, and so far no specific national unified federal law has been established. EU law on climate change and carbon reduction has always been demonstrative and the creative reasoning and applicable law in the Urgenda case could be instructive for future climate cases. We should take more action to improve the climate change governance system for a better future. 

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