PARIS AT THE SUB-NATIONAL SCALE? AN EXPLORATION OF THE ROLE AND POTENTIAL OF FRAMEWORK CLIMATE CHANGE LAWS.

• Date: 01 August 2022
• Author: Foerster, Anita

CONTENTS I Introduction II The Climate Change Act 2017 (Vic) A Emissions Reduction Mechanisms B Accountability Mechanisms III Empirical Insights from Victoria A Research Method B Aligning Sub-National Climate Action with Paris Goals C Effectiveness of Regulatory Approach 1 Bottom-Up Pledging 2 Legal Enforceability 3 Transparency Measures 4 Delaying Direct Action? IV Lessons for the Legal Design and Implementation of Framework Climate Change Laws A Strengthening Para-Alignment through Framework Laws B Robust and Enforceable Obligations on Government? C Transparency through Independent, Expert Participation and Public Engagement? V Conclusion I INTRODUCTION

Framework climate change laws are emerging in many jurisdictions around the world as tools to support the implementation of the international Paris Agreement (1) under the United Nations Framework Convention on Climate Change ('UNFCCC'). (2) The central goals of the Paris Agreement, to which Australia is a party, are to hold global average temperature rise to 'well below 2[degrees]C above pre-industrial temperatures', and to pursue efforts to limit temperature rise to no more than 1.5[degrees]C, so as to significantly reduce the risks and impacts of climate change. (3) In order to achieve this 'long-term temperature goal', the Paris Agreement provides that parties should aim to

reach global peaking of greenhouse gas emissions as soon as possible ... and to undertake rapid reductions thereafter ... so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, (4) an objective commonly interpreted as requiring net zero emissions globally in the second half of the century. (5)

Unlike previous international climate change accords, such as the Kyoto Protocol, (6) the Paris Agreement contains no specific legal obligations for states to commit to or to achieve a certain level of emissions reductions. (7) Instead, there is heavy reliance on procedural obligations and transparency measures to drive parties to nominate emissions reduction objectives that are a sufficiently ambitious and fair contribution towards the global temperature goals, and to hold parties accountable for delivering on these objectives. (8) Parties must prepare, communicate and maintain nationally determined contributions ('NDCs') which outline domestic measures to reduce emissions every five years, (9) and report regularly on their implementation. (10) Therefore, the Paris Agreement represents a shift in the international climate regime

from a 'regulatory' model of binding, negotiated emissions targets to a 'catalytic and facilitative' model that seeks to create conditions under which actors progressively reduce their emissions through coordinated policy shifts. (11) Although framework climate laws around the world are not uniform in their legal design, a general regulatory approach is emerging which is similar to the core emissions reduction mechanisms of the Paris Agreement. (12) These laws typically set a long-term greenhouse gas ('GHG') emissions reduction target ('ERT'), and many laws now provide for the alignment of domestic emissions reductions with the Paris Agreement's global temperature or net zero goals. Framework laws then establish procedural obligations for governments, intended to facilitate and coordinate action towards these long-term goals. These include obligations to set interim targets and develop associated policy measures. Direct measures to deliver emissions reductions, such as carbon taxes or regulatory standards for emissions-intensive activities, are generally not included in framework legislation itself, (13) but the processes by which these more direct measures are to be articulated, monitored, evaluated and revised compose the 'framework' laid out by the law. (14) Similarly to the Paris Agreement, transparency measures, such as regular progress-monitoring and -reporting, are used to promote accountability and support effective implementation.

While framework climate laws have been introduced predominantly at the national scale (at which international obligations under the Paris Agreement sit), there are also examples, such as the Climate Change Act 2017 (Vic) ('Victorian Act'), emerging at a sub-national scale. (15) The role of non-state actors such as sub-national governments in addressing climate change is explicitly recognised in the Paris Agreement (16) and these actors have significant potential to contribute to the achievement of NDCs. (17) Climate law and policy at the sub-national scale make particular sense in a federated jurisdiction like Australia, where state governments have considerable power and influence over key sectors such as energy, transport, agriculture and industry that are central to reducing GHG emissions. (18) However, the emergence of framework climate laws like the Victorian Act, alongside ambitious climate policy commitments in other state and territory jurisdictions, (19) also represents an attempt to drive a Paris-aligned climate policy agenda at the sub-national scale in a situation where there is currently no national framework legislation to coordinate climate change mitigation, (20) and existing national climate law and policy have to date not been well aligned with Paris temperature goals. (21)

Drawing on an empirical study conducted in 2020, this article presents an analysis of the legal design and early implementation of the Victorian Act. The analysis focuses on two key features of the Victorian Act: the approach taken to align target-setting with the Paris temperature or net zero goals; and the adoption of a facilitatory, bottom-up regulatory approach with heavy reliance on transparency measures to drive implementation and accountability. Both have important implications for the effectiveness of framework laws in supporting the implementation of the Paris Agreement. For national and sub-national governments alike, 'Paris-alignment' is generally taken to mean setting long-term and nearer-term ERTs based on global emissions budgets for keeping warming within the 'safe' parameters articulated by the Paris temperature goals. (22) Yet transposing the collective global temperature goals to targets or emissions budgets at a disaggregated, national or sub-national level is highly contested and complex. (23) Further, while the facilitatory regulatory approach taken in the Paris Agreement reflects the political compromise between nation states that was necessary to move international climate action forward on the basis of some level of consensus, (24) there remains considerable risk that state parties will not make adequate and fair commitments to achieving temperature goals, and will fall short in their implementation of them. (25) Therefore, at the domestic scale, and perhaps even more so at the sub-national scale, it is useful to evaluate whether such a regulatory approach is in fact effective in supporting implementation of the Paris Agreement.

With the Paris Agreement now more than five years old, it is timely to reflect on the role that framework climate laws are playing in its implementation. It is also now possible to use empirical evidence of the early implementation of framework laws such as the Victorian Act to test the assumptions underpinning their legal design and explore options to strengthen and improve them. As the third-largest state contributor to Australia's GHG emissions, with an emissions-intensive (brown-coal-dominated) energy sector, (26) Victoria has the potential to make a substantial contribution to Australia's overall emissions reduction efforts. Further, while there are other Australian state and territory jurisdictions with framework climate laws, (27) the Victorian Act is one of the most established and comprehensive. Victoria, therefore, provides a useful case study from which to draw insights that may be relevant to comparable jurisdictions and to the development of framework laws more generally. Therefore, this article contributes important, practical insights to the climate law literature. (28) In light of recent proposals to introduce a framework climate law at the national level in Australia, (29) and the climate policy commitments of other state and territory governments, (30) such an analysis can also usefully inform future discussions about the development of new framework laws and the reform of existing laws at both the sub-national and national scale in Australia.

Part II introduces the Victorian Act, situating this legislation within the broader context of framework climate laws emerging around the world and exploring the approach taken to translating Paris Agreement objectives and regulatory approaches into legislation at the sub-national scale. Part III presents the empirical study of the early implementation of the Victorian Act. This provides useful insights into the role that framework laws can play in supporting the implementation of the Paris Agreement. It highlights the promise, but also the challenges, of using a framework law to align domestic climate action with the Paris Agreement goals, particularly at the sub-national scale in the Australian context. It also underscores the potential risks and pitfalls of framework legislation which is closely modelled on the facilitatory, bottom-up regulatory approach of the Paris Agreement. Drawing on these findings, and also on emerging discussions about developing, implementing and enforcing climate laws in other jurisdictions, Part IV synthesises lessons for the legal design and implementation of effective framework climate legislation, and Part V concludes.

II THE CLIMATE CHANGE ACT 2017 (VIC)

Victoria first introduced climate change legislation--the Climate Change Act 2010 (Vic) ('2010 Victorian Act')--under a Labor government in 2010. (31) However, typical of the partisan nature of climate policy in Australia in recent years, (32) the...