Guest post by Professor David Campbell, Lancaster University Law School. (First published in The Reporter: The Newsletter of the Society of Legal Scholars, Winter 2016.)
An intriguing light is thrown on the implications of Brexit for domestic and transnational policy formulation by research into the way in which the 2°C target, now ‘adopted’ in Art 2 of the Paris Agreement, has come to be the cornerstone of international climate change policy.
The source of the 2°C target is the Assessment Reports (ARs) produced by the Intergovernmental Panel on Climate Change (IPCC), but only in a most indirect way. The ARs have identified 2°C as one of a range of possible ‘stabilisation’ targets ultimately drawn from a huge number of ‘emissions scenarios’. However, the IPCC has never attempted to defend the selection of the 2°C target from amongst all these alternatives. The 1995 Second AR insisted that ‘These examples do not represent any form of recommendation about how such stabilisation levels might be achieved or the level of stabilisation which might be chosen’, and this has been the position ever since. There may be consensus over climate change, but unfortunately the IPCC has never been able to tell us what it is.
The selection of the 2°C target is the result of what the latest, Fifth AR describes as ‘political processes’ worked through ‘a series of high-level political events’. Research seems to show that the first of these events was a 1996 Meeting of the Council of the European Union, at which the 2°C target was selected from amongst the alternatives set out in the Second AR in order to push forward UN climate change negotiations which were even then giving the Council ‘concern’ because they were ‘not advancing as needed to achieve [their] intended objective’. After preparatory consideration by committees of the Commission and the Council, the target was placed as an item not requiring substantial discussion on the agenda of a Meeting configured for environmental matters which also discussed, inter alia, humane animal trapping, pollution by non-road mobile machinery, and zoos. Briefly figuring in the minutes of the Meeting, the 2°C target is not even mentioned in the report of that Meeting in the EU Bulletin.
This Conclusion has since been used to justify the adoption of the 2°C target by innumerable other EU bodies, promotion of that target being stepped up after 2009 in order to ‘reinvigorate’ a UN process that the Commission feared was badly damaged by the Copenhagen Conference. This has fed into the deliberations of other national and international bodies co-ordinated by the UN Climate Change Secretariat, and it is now at the heart of the Emissions Gap Report produced by the UN Environment Programme. EU diplomacy which began with the Council Conclusion being made the basis of the EU negotiating position at the 1996 Geneva Climate Change Conference has led to the 2°C target always being mentioned in reports of the subsequent Conference proceedings, and these have now culminated in the Paris Agreement, which is shortly to enter into force.
The striking thing about all this is the ‘reflexivity’ of the process. Research seems to show that no attempt has been made in public debate at UK, EU or UN levels to in substance justify the selection of the 2°C target from amongst all the emissions scenarios. (The closest one might say anything comes to this is the just over three pages spent on it in The Stern Review, but, leaving aside the substantive evasiveness of the argument, the Stern Review itself is an ‘official’ document in only a significantly distanced way.) Typically, reference back is made to the fact of the 1996 Council Conclusion. It no doubt strains the credulity of those not versed in the ways of transnational governance in general and EU governance in particular that one of the most important policies ever adopted could be adopted in this way, which has managed to all but completely avoid public justification of that adoption.
It would prima facie seem that Brexit provides an excellent opportunity for the UK to escape from policy-making of this nature. But if one looks at the list of those who represented the Member States at the 1996 Council Meeting, one finds the UK’s principal representative to have been the Rt Hon John Gummer MP, then Secretary of State for the Environment, who, with Lord Stern, has been one of the two most influential figures in UK climate change policy. As Lord Deben, John Gummer is, of course, now Chair of the Committee on Climate Change set up under the Climate Change Act 2008. Now, it is true that the UN process has never managed to secure a binding commitment to global emissions reductions, either with reference to the 2°C or any other target, and so unilateral action by the EU, much less by the UK, can have no significant effect on the global concentration of anthropogenic greenhouse gases. Nevertheless, the UK’s establishing of a binding, and extremely demanding, domestic absolute reductions commitment is often justified, not least by the Committee on Climate Change, by this being necessary to comply with the EU policy in which mention of the 2°C target features largely.
That it has been possible to argue for a domestic UK policy by reference to what is needed to comply with a EU policy without it being made at all clear that the UK played an important role in formulating that EU policy is an example of one way in which transnational governance has undermined democracy and accountability. But, of course, Brexit is only a necessary, and hardly a sufficient, condition for remedying this. The ultimate source of the problem is the UK’s domestic democratic deficit that has allowed those like Lord Deben to pursue their improving projects at a transnational level from a position of power granted them by UK national authority. This exploitation of domestic national authority in order to formulate policy transnationally has been the core of globalisation and the seeming concomitant ‘powerlessness’ of the nation state. Brexit that does not address this will be of only very limited value.