Climate Change Targets Bill

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We suggest that the Climate Change Plans should include policies and a legislative framework to support and enable greenhouse gas removal (GGR). The recent CO2RE policy briefing submission to the UK Government defines GGR as “encompassing ‘land-based’, ‘marine-based’ and ‘engineered’ methods” to “remove greenhouse gases from the atmosphere and store them durably.” (https://co2re.org/delivering-greenhouse-gas-removal-in-the-uk-priorities-for-the-government/ )

These methods will play an increasingly important role in reducing net greenhouse gas emissions, by both mitigating the impact of ongoing residual emissions along with reducing existing greenhouse gas from the environment. Overall, CO2RE suggests that adoption of GGR methods will assist in achieving net zero by the mid-century targets and then progressing to achieving long-term net-negative emissions. Some methods are based on proven science, while others require investment to develop technologies to a point where they can be deployed at scale.

At the moment, the GGR industry has a low level of activity and therefore requires both policy and legislative support from government. However, Scotland is well positioned to exploit the economic and environmental benefits of GGR in:
- Industrial development of the GGR, supporting business and employment in the transition from a carbon-based economy to a sustainable carbon-reduction economy.
- Repurposing existing economic assets to support the GGR economy.
- Research and innovation in both higher education and private research sectors, attracting skilled experts to Scotland.
- Realising the economic potential of carbon trading, by positioning Scotland’s GGR potential as an important lever for inbound investment and therefore supporting the balance of trade.
- Promoting environmental tourism, where GGR uses naturally based carbon dioxide removal (CDR) methods such as peatland restoration, native forestry and protection of coastal wetlands.
Scotland has outsized potential for GGR and is uniquely well positioned to benefit economically from existing industries, workforce, research, agriculture, aquaculture and the natural environment.
In the recommendations to the UK Government, CO2RE recommends that GGR requires government to -

1. Take a strategic approach to greenhouse gas removal (GGR) to maximise opportunities for the UK and manage risks:
i. Develop a strategy for GGR
ii. Be outward facing in the UK’s approach to GGR
iii. Address the institutional arrangements needed to develop and deploy GGR technologies
iv. Keep options open, monitor progress and adapt.

2. Put public engagement at the heart of GGR policymaking:
i. Embed public engagement into decision-making through mandating a Citizens’ Assembly that goes beyond purely determining ‘acceptability’
ii. Develop best practice methods and guidance on community engagement and mechanisms for embedding it into governance
iii. Communicate GGR responsibly.

3. Harness the potential for the UK to lead on aligning climate and broader sustainability goals:
i. Embed GGR into broader strategies for sustainable development and vice versa
ii. Develop governance frameworks that ensure genuine sustainability and social responsibility at project level and as GGR scales
iii. Play a leading role in developing standards and rewards systems that create a level playing field across technologies and incentivise multiple outcomes.

4. Create robust and flexible routes for GGR scale-up that build investor confidence:
i. Take a holistic approach to policymaking by developing and testing policy ‘bundles’ that work across the full system of supply, demand and the enabling environment
ii. Develop flexible policies that reflect the diversity of GGR methods
iii. Support local authorities to deliver GGR approaches and solutions.
Given the industrial, research and environmental advantages enjoyed by Scotland, we would suggest adding -

5. Develop a policy and legislative framework for GGR that is tailored to the economic potential of CDR within Scotland:
i. Embed CDR into the strategic frameworks for peatland, agriculture, crofting, aquaculture, forestry, maritime stewardship, natural heritage, the built environment, reuse of geological carbon-based extraction assets, and industries that will be a source of residual carbon emissions.
ii. Recognition that jurisdiction for CDR is largely within devolved competence and that UK based policies and legislation will not automatically transfer to Scotland.
iii. Expertise in policy, legislation and regulation will not only benefit the adoption of CDR within Scotland but will also be an exportable asset in its own right.
iv. Recognition that CDR will bring involve Scotland in meeting international obligations, particularly where those affect marine stewardship and sub-marine geo-engineering with the Exclusive Economic Zone.

A recent study in Canada has suggested that a comprehensive policy, legislative and regulatory framework is required to enable GGR / CDR methods. The study by Craik et al. positions this framework as covering -
- Research and development
- Setting targets and distributing responsibilities to remove greenhouse gases
- Impact assessment at project and strategic levels
- Property rights and liability rules
- Accounting
- Monitoring/verification, including storage permanence
- Public consultation

Applying this framework to Scotland would mean respectively -
- Promoting with scientific and legal research into GGR.
- Establishment of a regulatory regime that both enables GGR but also is tailored to the outsized potential that Scotland offers in a wide range of CDR methods. This in itself will be a centre of expertise to be economically exploited by Scotland.
- Ensuring that CDR benefits Scotland economically and environmentally, and also ensuring that CDR as a greenhouse gas mitigation strategy does not hinder the reduction of greenhouse gases from residual emitters.
- Protection of rights where CDR is deployed and appropriately regulating liability where CDR technically fails and re-emissions occur.
- Meaningful public engagement to develop local benefits and overcome objections or barriers to adoption.
- Recognition that expertise necessary for CDR will already exist in industries and business sectors that are neither currently active or associated with GGR.

A series of legal challenges, domestic and international, have ensured that government climate change policies must clear a high bar in order to be deemed legally compliant.

The High Court in England, in a series of judicial review challenges, have set a high standard for government climate change policy. These standards would be readily applicable to the Scottish Government's future Climate Change Plans.

Firstly, in July 2022, the High Court held that the UK Government’s Net Zero Strategy was unlawful and ordered it to produce a revised strategy that complied with its obligations under the Climate Change Act 2008. In particular, the court emphasised the critical expert role of the Climate Change Committee, noting that its regular advice must be given “considerable weight”. Moreover, the Court highlighted the government’s obligations under the Climate Change Act to produce detailed climate policies, showing how the UK’s carbon budgets would be met. In other words, the government was required to clearly 'show its working', and having failed to do so was required to produce a new strategy.

That strategy ('the Carbon Budget Delivery Plan') was published in May 2023, and again challenged by Friends of the Earth and ClientEarth. In a judgment of May 2024, the Court held that the Secretary of State had breached his duty to adopt plans and policies that “will enable” the carbon budget to be met, as required by section 13 of the Climate Change Act. In particular, he was deemed to have acted on the basis of an incorrect understanding of the facts, namely that each of the policies and proposals in the Plan would be delivered in full. Moreover, the Court held that the Secretary of State had acted irrationally in circumstances where emissions savings from the polices and plans relied on by the Secretary of State failed effectively to reflect delivery risk meaning that there was no meaningful assessment of any shortfall in the emissions savings that the plans would deliver. The Court concluded that the Plan could not stand as one that the Secretary of State could rationally conclude “will enable” the carbon budget to be met.

Yet more recently, in the case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland (2024), the Grand Chamber of the European Court of Human Rights court recognised both a right to effective protection from adverse effects of climate change under Article 8 of the Convention, and also found Switzerland to be in violation of Articles 8 and 6(1). The Court found it necessary to quantify, through carbon budgets, national GHG emissions limitations which Switzerland had not adequately done. On that basis, along with failure to meet its own previous targets (not dissimilar to Scotland, it will be noted), the Court found that Switzerland had failed to act appropriately to mitigate climate change, violating its positive obigations under the Convention.

These case have significant implications for public bodies, including the Scottish Government. One could also discuss the recent UK Supreme Court decision in Finch which determined that in certain circumstances scope three emissions would have to be considered by public decision makers. Such cases only emphasis that intensive scrutiny over public climate change policies and legal challenges by way of judicial review can be expected to be ever more frequent. Public bodies will want to ensure that their policies are robust to avoid such cases. The UK judge on the ECHR flagged this risk in dissent, arguing it went beyond proper role of court. Nonetheless, the above is indicative of the very high standard to which the Courts, and a well motivated NGO sector, will likely hold the Scottish Government. The failure to parse and comply with the requirements of past Court judgments will both delay and undermine any future Climate Change Plans.

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