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What has been the Government’s response? So far, a plethora of reports, policies and legislation on such matters as emissions trading, energy performance and the climate change levy. It may then be good news that a detailed draft of the Climate Change Bill has not yet been published after its announcement last November. Perhaps ministers have been using the time to produce a meaningful and comprehensive Bill rather than a hasty response to the Conservatives’ draft one.
The political challenge is to develop a viable and equitable legal framework driven by flexible but cogent policy that can respond to the scientific and economic uncertainties of climate change. A reactive approach based on political opportunism will produce only more rather than better legislation that helps neither business nor the environment.
Yet there has been little tangible progress, with the Department for Environment, Food and Rural Affairs (Defra) still unable to confirm a timescale for public consultation on even the general content of the Bill. As announced, it is likely to comprise four main elements:
It is still unclear, though, whether the Bill will cover all greenhouse gas emissions or just carbon dioxide emissions; and ministers seem unlikely to match the Conservatives’ proposal for more regular targets to aid monitoring. Ideally, the secondary legislation should be drafted now to allow for adequate consultation alongside the Bill.
The Government has recently shown that it can take a tough stance on regulating climate change in the context of the EU Emissions Trading Scheme (EU ETS). Its phase II national allocation plan (Nap) was sufficiently strict to gain immediate approval from the European Commission (unlike other member states). So much so, in fact, that a large cement manufacturer recently challenged its allocation under the Nap (Cemex UK Cement Limited v Defra). Although the application has initially been rejected, an appeal may be pursued.
It is also clear that the costs of compliance with the EU ETS are starting to bite, given the recent imposition of hefty fines by the Environment Agency on a handful of big UK businesses (including Mars UK — the makers of Mars Bars) for not submitting sufficient carbon allowances last year.
Such legal impacts may soon be felt more broadly in the UK, with Defra now looking at establishing a domestic trading scheme called the the energy performance commitment. This would cover energy users such as hotels, banks, universities and supermarkets that currently fall outside the EU ETS.
More radically, David Miliband,the Environment Secretary, has been touting the concept of personal carbon allowances. This would involve each of us being allocated carbon credits for energy-related products such as gas or electricity bills, petrol and possibly flights. Carbon credit cards would be used like the smart cards employed by the big retailers — the incentive being that we can sell unused credits to those less able to curb their environmentally unfriendly behaviour.
But there are significant issues regarding the allocation of such credits in a socially equitable and technically viable manner. So we are unlikely to be forced to limit the fairy lights on our Christmas trees in the near future.
In the meantime, Gordon Brown has been pursuing a rather different agenda in his Pre-Budget Report with only moderate adjustments to the fuel duty and possible stamp duty exemptions for carbon-neutral homes. A green schism appears to be emerging at the heart of government on the best policy approach to address climate change — straightforward tax measures or more complicated trading schemes? The UK was the first country to industrialise, so it should continue to take the initiative on climate change at a domestic level. This calls for a range of innovative but well-considered policy solutions to ensure, when embedded in legislation, positive and substantial results in the long as well as short term. The Climate Change Bill should provide a legal framework commensurate with the significant challenges it is supposed to address.
The author is head of the environment group at international law firm Stephenson Harwood
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