Carbon Critical

Sep 28, 2023

When Is a Climate Target “Legally Binding”?

Countries such as Germany and the United Kingdom have enshrined climate goals into national law. What happens if they miss them?

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A graph showing recent German CO2 emmisions
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On the international level, the matter is clear: Climate targets submitted to global bodies, including the United Nations Framework Convention on Climate Change (UNFCCC), are “legally binding” only in theory. If a country decides not to submit a target or to withdraw from UN climate agreements altogether or fails to implement the policies to achieve its target, there is no higher power to compel it to act otherwise.

But what about climate targets enshrined in national law, which are meant to be enforced by the power of the state? Recent developments in Germany and the United Kingdom demonstrate that those are not quite as “binding” as they appear either.

Germany’s Failing Report Card

Germany’s 2019 Climate Protection Law enshrined the country’s goal of cutting greenhouse gas emissions to net zero by 2050, setting interim goals for emissions reductions by 2030. It also set up an independent council of experts who are meant to keep an eye on the government and “assess measures to be taken in case of target failure.” At the end of a record-hot summer in the country, the German Council of Experts on Climate Change (ERK) said that even if all 130 measures in Germany’s Climate Action Program were implemented, the country would still fall short of its 2030 targets. The council said it was “skeptical regarding the probability of implementation and the deviation between reality and the assumptions of the federal government.” 

Germany’s 2030 climate targets are not only guaranteed by the legislature; they also have the backing of the nation’s highest court. In 2021, the Federal Constitutional Court in Karlsruhe declared that Germany’s 2019 climate law was “incompatible with basic rights” anchored in its constitution, and ordered the government to strengthen it. Germany’s parliament, the Bundestag, quickly followed orders and increased its target for emission reductions by 2030. It even established yearly emission budgets for each sector for the decade of the 2020s. 

So Germany has a law backed by the Constitutional Court that says emissions “shall be gradually reduced by at least 65 percent by the year 2030.” It doesn’t get much clearer, or more “binding” (verbindlich), than that—which is why it’s so interesting to compare the power of these legal obligations to that of the political forces that determine whether Germany can actually reduce emissions fast enough. 

The saga of the Gebäudeenergiegesetz, known as the Heating Law, is a good example. On September 8, the Bundestag approved a bill that aims to cut emissions in the long-neglected building sector by gradually banning the installation of new fossil-fueled heating systems. The passed law differs from the Economy and Climate Ministry’s initial proposal from the start of 2023—but it wasn’t strengthened in light of Germany’s foreseeably insufficient progress toward binding goals. After a public outcry over a leaked early version of the law (which appeared to demand that homeowners should replace their heating systems immediately, while public buildings were exempt) and much internal infighting, the ruling coalition of the Social Democrats (SPD), Greens, and business-friendly Free Democrats (FDP) weakened the law in early summer by delaying the ban on new fossil-fueled heaters.

The Green-led Economy and Climate Ministry admits that the diluted law will only cut about three-quarters as much CO2 as originally planned, which is one reason the ERK experts are worried. With the climate-denying far-right Alternative für Deutschland (AfD) rising in the polls and breathing down the government’s neck, however, it is unlikely that the coalition will develop greater ambition for the remaining two years of its term.

So while Germany’s climate policy is embedded in EU law—Germany could have to pay €30 billion due to excessive emissions that violate EU regulations—its national obligations are in fact not so obligatory. The German government is not going to fine itself. On the contrary, it is considering eliminating the yearly sectoral carbon budgets altogether, and making ministers only politically responsible for their sector’s emissions, rather than legally responsible.

The UK Goes from Leader to Laggard 

With its Climate Protection Law, Germany was following the British model—the United Kingdom was the first major economy to implement legally binding emissions targets. In 2008, the Labour government led by then Prime Minister Gordon Brown passed the Climate Change Act, which established five-year carbon budgets to gradually reduce emissions and reach net zero by 2050. The UK comfortably stayed within its carbon budgets through 2018 largely thanks to its rapid coal phase-out.

But the picture is less rosy for future carbon budgets. The equivalent of Germany’s expert council, the Climate Change Committee, said in June 2023 that “its confidence in the UK meeting its goals from 2030 onwards is now markedly less than it was in our previous assessment a year ago.” The UK has recently approved a new coal mine as well as new oil and gas fields in the North Sea. Committee head Chris Stark says political leadership is missing, and until the UK finds it, “this program [of reaching net zero] is going to run into the sand.” 

The Conservative government of Rishi Sunak is driving the UK towards a “slow motion car crash,” according to Conservative MP Chris Skidmore, who produced a report on net zero for the same government. The scathing review followed news that the Sunak government plans to delay bans on combustion engines for new vehicles and gas boilers for heating which were previously set for 2030—significantly weakening two of the UK’s leading transition pathways and putting future carbon targets soundly out of reach.

As in Germany, the UK’s judicial system has put extra pressure on the government to keep its word, to little avail. In 2022, the High Court ruled in favor of a coalition of environmental law organizations led by ClientEarth, who argued that the government had failed to show that its policies will reduce emissions to meet the requirements of future carbon budgets. It ordered the government to review its climate strategy, but the result of that, the March 2023 Carbon Budget Delivery Plan, is the exact document that has left the Climate Change Committee feeling so blue.

In sum, even with growing pressure from within and outside government, holding policymakers accountable for climate promises remains difficult. The High Court’s 2022 ruling, lauded as a victory for climate accountability, dealt more with the technicalities of reporting than the supposedly “illegal” gaps in the government’s climate strategy—hence the CBDP’s focus on clarifying existing policies rather than introducing substantial emissions reduction measures. A London School of Economics Review of the Climate Change Act frets that “the Act is untested when it comes to forcing a reluctant government to accelerate its policy delivery.” As advocacy groups, review boards, and government ministers wrestle over the future of carbon budgets, the aspirations of the Climate Change Act hang in the balance.

Climate Musical Chairs

How to feel about governments slipping out of their climate binds? A key tenet of democracy is a polity and government’s ability to change its mind. This applies especially to the UK, which has no written constitution and subscribes to the doctrine that “Parliament can do anything except bind its successor.” The few countries whose constitutions contain clauses on climate change do not go so far as to set numerical targets beyond net zero in the distant future, with the exception of Switzerland. 

As long as legally binding climate targets for 2030 remain seven years away, governments can simply claim that they are on track and hope the projections are wrong. The calculations of his Expert Council notwithstanding, German Chancellor Olaf Scholz insists he is “firmly convinced that with the measures and decisions we have taken, we are doing exactly what is needed for Germany to become CO2 neutral in 2045 and so that we can also achieve the 2030 climate targets.” 

But as we get closer to target dates like 2030, it will become impossible for policymakers to assert that their successor will make up for their shortfalls. They will start missing “legally binding” national targets. They’ll have to decide whether to ignore the target, change it, or make drastic policy changes to achieve it—if populations will let them. 

Noah J. Gordon is INTERNATIONALE POLITIK QUARTERLY’s climate columnist and acting co-director of the Sustainability, Climate, and Geopolitics Program at the Carnegie Endowment for International Peace in Washington, DC.

Dan Helmeci is a Gaither Junior Fellow at the Carnegie Endowment for International Peace in Washington, DC.

 

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