Climate change law in Wales: realizing the value of participation – Mark Stallworthy
What follows seeks a distinctive Welsh legal perspective on efforts to address the challenges of climate change, under the aegis of the UK’s 2008 Climate Change Act (‘the Act’). The background to the discussion sees a Welsh government operating in a devolved setting, now on track towards increased legal autonomy, and subject to an evolving duty to promote sustainable development in the exercise of its functions.1 Yet, at the same time, a Welsh ‘voice’ jostles in a crowded governance terrain; one marked by challenges across multiple levels of authority, presenting complex and multi-faceted problems, which are often resistant to traditional law and policy responses.2 Following a preliminary scoping of the type of governance quandaries that responding to climate change represents, the chapter contains a review of key developments of climate change law affecting Wales, and identifies more important implications for policy makers thus far. Thereafter the central concern broadens, to address the role of civil society (a notion that remains more inclusive than the now ubiquitous ‘stakeholders’) as a central driver in procuring meaningful responses to climate change. The argument, applying an analytical framework that draws upon wider public law discourse, offers a rationale for recourse to wider and deeper forms of public participation than have been seen in this field to date. In particular, it will be argued that this can both create positive conditions for securing behavioural change and enhance legitimizing processes, through fuller social engagement, deliberation and acceptance.
Universal quandaries and a Welsh locus for response
Quandaries presented by climate change offer paradigm illustrations of what can be termed ‘wicked problems’: identified in particular by their extreme complexity and uncertainty, and by linkage to oppositional cultural perspectives that lead to entrenched conflict.3 Attempts to counter environmental threats, achieved primarily through regulatory approaches which rely on quality standards and command-and-control, more recently augmented by the introduction of alternative economic approaches, can claim some considerable success.4 Yet ‘wicked’ climate-related threats are proving less amenable to regulation. There is much causative diffusion between, on the one hand, those climate risks that are increasingly being acknowledged and, on the other, the basic forms of organization of our traditional human activities (including our habits of production, commerce and consumption). Commitment to solutions is hindered by a general non-immediacy that characterizes such risks, with impacts widely displaced, both spatially and temporally.
Unsurprisingly, given a policy hinterland typically characterized by a lack of coherence and integration, exemplified, for instance, by a traditional separation of environmental and energy law, it is proving hard to develop effective policy responses and reform regulatory structures.5 Not only can institutional responses to climate change be described as haphazard, but policy and law structures remain often at variance with ecological realities.6 Contributory factors are a subject for a different paper, but it may be said that the often abstract nature of climate threats can seem normatively and practically removed from us, as a present generation facing seemingly more immediate, systemic and existential demands. Moreover, issues that arise are also closely aligned to lifestyles that are in notable respects a culmination of human aspirations. Likewise, our governing classes encounter spillover political risks in the event that they propose transforming solutions.7 Yet climate risks ultimately threaten a fundamental destabilization of the sustain-ability of natural systems upon which we depend.8 There is, therefore, much else at stake, with significant implications affecting both public and private realms.9
Accordingly, while viewed below from the vantage point of the law of England and Wales, the perspectives presented here are part of a much wider climate law canvas, key elements of which are briefly outlined. Following the seminal UN Convention on Climate Change, achieved at the Rio Summit in 1992, that treaty’s somewhat generalized and hortatory aspects were given greater specificity under the Kyoto Protocol, most developed states entering into differential commitments to contribute towards greenhouse gas emissions reductions for the purpose of mitigating effects of climate change.10 Also a party to Kyoto, the EU had to achieve an aggregate emissions reduction of 8 per cent (on 1990 levels). The Kyoto commitment period was set to expire at the end of 2012, and, with no guarantee of a multi-lateral successor, a broad EU agreement has committed unilaterally to continuing reductions (20 per cent by 2020), with legal responsibilities across Member States imposed under an effort-sharing measure.11 This is supplemented by a putative commitment to further reductions (to 30 per cent) provided that developed states outside the Union meet certain conditions regarding reciprocity.12
Mitigation by emissions reductions has dominated the attention of larger institutions of governance, borne out at the EU level in the political capital invested in the flagship Emissions Trading Scheme (EUETS).13 That focus is maintained as technological solutions assume an increasing role in climate discourse, both as pressed by powerful lobbies, and more pragmatically as a late throw of the policy dice.14 The EU itself has moved to create a strategy for a regulatory framework, with financial incentives, for the development of carbon capture and storage.15 Moreover, recognizing that significant impacts are already unavoidable, the Commission has signalled a change, directing its European Climate Change Programme towards more specific adaptation responses.16 Adaptation has meanwhile a much firmer footing in developing the climate policy agenda within Member States; and in the UK, from the particular perspective of Wales, crucially within devolved policy areas such as land use planning, energy usage, transport and housing.17
Implications of the UK climate law-making framework for Wales
Providing an umbrella measure for regulating UK responses to climate change, the Climate Change Act 2008 offers an important framing for the discussion that follows. It provides a set of organizing principles, determining objectives and trajectories towards meeting identified goals, under which policies and legal mechanisms can be developed and evaluated. Emerging policy approaches must be tested against the Act’s requirements: for instance, the Welsh Government’s climate change strategy, discussed below, is a specific response to its statutory obligations.18 On policy content, the Act is largely of an enabling nature, and mainly concerned with aspects of mitigation, with more cursory treatment of adaptation.19 Its underlying premise is a mandatory goal of a 60 per cent reduction in UK greenhouse gas emissions (from 1990) by 2050. It relies on placing formal obligations on the central government, based on set targets, carbon budgets, reporting requirements and responsiveness to expert advice. The apparently unambiguous nature of those statutory duties amounts to something of a constitutional innovation, and one which in due course is likely to be tested in the courts in relation to the intensity of scrutiny on review that it incorporates.20 Ancillary procedural arrangements support delivery on commitments, with ministerial duties to produce risk assessments for climate change impacts, and appropriate adaptation programmes.21 Heavy reliance is placed on the information, monitoring and advice roles of a statutory, non-departmental Committee on Climate Change (‘the Committee’), especially concerning budget setting, risk assessment report preparation and annual progress reports to Parliament.22
The Welsh government is vested with a range of statutory authorities under explicit sub-national provisions woven into the fabric of the legislation. These are particularly important for capacity building, and include extensive rights to information and access to advice. For purposes of exposition they can be separated into four categories. Accordingly, the Welsh Government is, first, a statutory recipient of reports produced in pursuance of the Act, including the UK risk assessment reports and adaptation programmes, and Committee advice on assessment reports and carbon budgets, as well as its progress reports.23 Second, it may issue guidance or directions to the Committee in relation to the latter’s advisory and reporting functions; the Committee is required (save as regards actual content) to have regard to and comply with such guidance.24 Third, it has a catch-all power to require the Committee to advise and assist specifically on any Welsh target or budget requirement (whether arising by adoption or otherwise).25 Fourth, and more generally, regarding any devolved functions under the Act, it may require the Committee to report on progress made in mitigation, adaptation or (in a sweep-up provision) ‘any other matter relating to climate change’.26
The legislation also imposes, by virtue of what remains a broadly top-down UK governance framework, substantial constraints on the scope for Welsh government action. Significant areas of non-devolved policy are closely tied to progress on climate objectives. Aside from the core reserved area of fiscal policy, the crucial area of energy law and policy, too, is mainly dictated at the UK level. In particular, in relation to large-scale power generation (at above 50 MW), issues relating to construction, extension and operation of capacity require UK government consent, as do arrangements for electricity transmission, distribution and supply.27 Nuclear energy and installations are included in this reservation (save disposal of very low-level radioactive waste), and similarly energy conservation (apart from encouraging efficiency otherwise than by prohibition or regulation).28 Furthermore both power generators and larger industrial installations, each of whose ‘traded emissions’ fall within the EUETS, are largely excluded from further emissions regulation.
And yet significant sub-national opportunities exist for autonomous mitigation and adaptation measures.29 In relation to mitigation, from a devolved Wales perspective, relevant fields include land use and agriculture, and more especially smaller-scale forms of power generation, with highly pertinent devolved powers affecting these areas – especially in relation to town and country planning (including in respect of electricity generation up to 50 MW capacity in respect of onshore projects); the promotion of energy efficiency; microgeneration policy; and public sector estate management.30 There is therefore substantive space for particular Welsh contributions, primarily through demand-side measures, and towards encouraging altered behaviours, which include, for instance, smart energy consumption and modal choices between private and public transport.31
Furthermore, it is in relation to adaptation efforts that the most meaningful powers vested in the Welsh Government can arguably be found. In particular, it has extensive powers under the Act to issue directions and/or guidance to ‘reporting authorities’.32 These are creatures of the Act, with functions of a public nature (or otherwise deemed a statutory undertaker under planning legislation), which are obliged under the Act to report progress in policy implementation.33 The statutory provisions will engage those with responsibilities for delivery of ‘critical public services’, and that are characterized by a shared vulnerability to climate change impacts by reference to either infrastructure or service provision: such as local government, health, water, the natural environment and emergency response.34 The Welsh Government is authorized to issue directions both to set the parameters for such statutory reports and to impose risk assessment and adaptation-planning duties on these crucial delivery authorities.35 Once a report is in place each authority must have regard to it in exercising its functions, taking account of relevant guidance as well as statutory reports on climate change impacts and programmes for adaptation.36 Outcomes will depend on the nature of commitments and related timescales. However, the scheme will be an iterative process; for instance, these bodies are likely to be required to adopt responses to central government climate change risk assessments (the first is expected during 2012) and related sectoral adaptation plans as well.37
The devolved settlement therefore predicates the possibility of distinctive Welsh policy development, already further advanced in Scotland, where the devolutionary remit was from the start more radical.38 As mentioned above, the Welsh Government has produced a climate change strategy, which has an initial emphasis on mitigation, setting an objective for a 40 per cent reduction in Welsh greenhouse gas emissions by 2020 (against 1990), and a target of 3 per cent per annum in areas of devolved competence.39 Annual progress reports must follow (from 2013), and there is a departure from UK strategy in respect of calculation of net Welsh emissions being exclusive of offsets (in effect, the buying of credits), whilst the central government has chosen to retain a buy-in discretion for potential use in netting off UK obligations.40 In that the strategy sets targets for Welsh emissions reductions, supplementing those delivered at a UK level, the exercise is of some complexity. UK emissions under EUETS are excluded, and here there is a softer commitment to ‘continue to work with energy generators and energy intensive businesses to support them in reducing emissions and report progress’.41 Yet other included sources – with target ranges for sectoral reductions – contribute ‘direct’ greenhouse gas emissions in Wales (especially transport, the residential sector, the public sector, waste, agriculture, land use change and business/industry emissions outside EUETS), including end-user electricity consumption within these categories. A related sign of work towards broader behavioural change appears in the commitment to transparency in indirect impacts such as downstream electricity usage.42 Here uncertainties arise about the potential for double counting; as, for instance, upstream power generators impose payment premiums on customers based on putative allowances required to secure the reduction of emissions under EUETS.43 Problems of overlap may intensify in the future should (as originally proposed) further UK trading schemes affecting emissions from other sectors, commercial or other, emerge.44
Particularly in light of potential problems in separating instances of overlap and differentiation, adaptation may therefore prove more fertile territory for direct Welsh measures, reaping a benefit from proximity to a wide range of actors with public functions, private–public partnerships, and civil society generally.45 Already the Welsh climate change strategy sets out an initial framework for developing a structured approach to future adaptation.46 It has key dual features, including, first, capacity building, across organizations and communities, by seeking to introduce adaptation into mainstream decision making whilst taking account of ‘competing pressures on our social, natural and economic systems’, and, second, communication of impacts and adaptation responses to ‘ensure that decision makers at all levels are aware of the impacts of climate change and equipped with the information and tools they need to apply that knowledge in planning and decision making processes’.47 In aiming to build resilience throughout Wales to climate impacts, the strategy requires a supplementary adaptation delivery plan, offering greater specificity over activities, objectives and outcomes.
It is in respect of adaptation that community engagement has particular salience, in determining issues of risk acceptability and the development of such mechanisms as information sharing and wider public participation.48 Devolved settings as in Wales can have especial relevance to the task of seeking the negotiated resolution of conflicts between strategic objectives and local perceptions and impacts.49 The potential benefits of developing effective participation strategies are explored further below.
Participatory rationales and the potential for behavioural transformations
For progress towards a low-carbon society, the distinctively Welsh response with arguably greatest potential lies in opportunities for securing community buy-in to policies leading to behavioural change.50 Despite some discrete successes – as in broadly reducing reliance on the most carbon-intensive fuels – a high proportion of Western decarbonization has been achieved through ‘leakage’, in effect an outsourcing of industrial production facilities to emerging economies in order to feed persistent consumption demands in developed states.51 Behavioural change poses intractable problems, as citizens in advanced economies pay lip service to green initiatives (such as recycling) but show little inclination towards radical adjustments in lifestyle.52 Tensions also arise, though not further discussed here, over compatibility with demands for economic growth, and (since the first banking crisis in 2008) the ongoing concerns at the implications of economic recession and related levels of private and public debt.53 There remains, however, an active discourse about ways to reconfigure growth variously according to ‘green’ principles.54 The argument below, in light of those major psychological influences that influence how we respond to risk, considers key rationales for participation strategies in the process of bringing about behavioural change, and then offers an analysis of steps taken towards their introduction in Wales.
There is an extensive literature concerning the nature of participation mechanisms, although a detailed discussion of methodologies is not part of the present purpose.55 Levels of public involvement can be placed across a wide spectrum, with lower levels reflecting basic rights to information or mere consultative roles, although categories can mean contrasting things from different normative perspectives. It is argued that more deliberative strategies, at the ‘higher’ end of involvement, offer optimum potential for addressing areas of policy and decision-making that are the most intractable and categorized by conflict.56 As is the case with wicked problems referred to above, such conflicts can typically lead to political sclerosis and failure to respond to acknowledged harms. Democratic systems are not immune to decision avoidance; as Glendon argues, the greatest obstacle lies not ‘in an “inert people” so much as the failure of persons in positions of leadership … to work actively to create opportunities for discussion’.57 However, there is also a symbiotic element at work, whereby the demos itself can be disinclined to press for change. Much of the discourse about our ambiguous notion of sustainable development, ‘essentially driven by political and economic processes … defined in such a way as to mean almost anything that anybody wants it to mean’, has been so coloured.58 For example, the incoming UK government draft revised planning policy proposed both greater influence for local community views and at the same time a new presumption in favour of ‘sustainable development’, a term seemingly approximating closely to ‘development’.59 Indeed, a growing sign of differentiation in this respect will be seen in the discussion of sustainable development in Wales below.
Levels of individual and collective engagement with climate-related risks are shaped by those shared human characteristics that encompass cognitive, affective and behavioural psychological elements, which combine to determine ‘states of connection’.60 Insights from cognitive psychology suggest a tendency to cling to valued activities, even at the cost of undervaluing associated non-trivial risks.61 Moreover, complexities in individual response reflect both personal experience and societal values.62 These can typically generate a feedback effect from declining support for action, as citizens (and groups) demonstrate aspects of learned helplessness (nothing can be done) and/or adaptive preference (getting used to ‘baseline conditions’).63 That said, differing contexts can yield contrasting conclusions: for instance, whilst risk averseness can attend high levels of uncertainty and potential for catastrophe, cultural ‘filters’ can bring about counterfactual responses, as where potential harms appear unreal, and so divorced from everyday experience and understanding as to amount to ‘virtual risk’.64 Climate law debates often reflect such responses, in particular because of the pervasive scientific uncertainty that provides a backdrop to policy argument.
The conditioning by expectation and experience (or lack of same) of such attitudes towards serious threats of future disaster can also operate collectively. Thus conditions prior to, during and after Hurricane Katrina have been described as demonstrating a persistent ‘disturbing cognitive dissonance … between what everyone knew to be the case, how government chose to govern, and how everyone chose to live their lives’.65 Further, apparent shifts can seem sudden and capricious: for instance in respect of a recent widespread acceptance of nuclear power, linked to its role in meeting growing concerns about energy security.66 This contrasts with a subsequent renewal of scepticism concerning reliance on nuclear safety, in the aftermath of the 2011 tsunami and earthquake in Japan that overwhelmed technical defences at the Fukushima nuclear power plant.67 Our responses, as in our more rigid expectations of unchanging conditions of cause and effect, appear to mirror the operation of ‘positive feedback’ in nature, whereby ecosystems, despite their inherent tendency towards stability – or ‘system inertia’ – can become overwhelmed.68 This is one aspect of what has been termed the collective action problem, which in part reflects influences by dominant sectoral interests, seeking to ensure that competing approaches ‘only achieve a place on the policy agenda if they do not challenge these interests fundamentally’.69
What value does a focus on public participation contribute towards overcoming these limitations and resolving policy dilemmas? At their most effective, those participatory processes that maximize public interaction in decision making offer the potential to enhance knowledge and transparency, the adoption of responsibilities to reach agreement (problem buy-in) and ultimately acceptance (solution buy-in).70 However, extensions in public involvement into institutional structures have yielded mixed results, as for instance recently in the context of pollution permitting. In these processes, there has been a traditional domination of technical features, which thus become largely reserved matters for regulator and regulated.71 Evidence suggests that more recent statutory consultation opportunities have yielded extremely low reported response rates, with continuing self-exclusion on grounds including perceived lack of understanding. Kirk and Blackstock have concluded that ‘the public are not so much apathetic as passive in their approach to the environment’, a tendency perhaps exacerbated ‘where there are only limited obligations on regulators to inform the public that participatory processes exist’.72
In his groundbreaking assessment of planning ‘ideologies’, McAuslan described a more radical participatory ideology, as a modern counter to the twin established ideologies based respectively on the common law inviolability of private property and more orthodox restraint imposed in the public interest by public administrators.73 By contrast, he characterized a more radical, third approach as affording opportunities to influence and challenge the exercise of administrative authority in the public interest. Without perhaps achieving such thoroughgoing change, it is the case that in UK public law the planning process has traditionally demonstrated greater formal recognition of participation than has been apparent in other fields of regulation, with long-standing incorporation of more participatory models into legal structures and administrative cultures.74 This can also be seen in the modern development of the crossover planning/environmental field of environmental impact assessment, where judicial interpretations have resisted merely cursory approaches to opportunities for wider public involvement.75
Indeed, the idea of ‘collaborative planning’ has been particularly identified with the regulation of land use, offering a greater acknowledgement of the potential decision-making contribution of wider networks of social and communicative interaction in the public realm, and a counterbalance to the dangers of ruling expert consensus as reflecting dominant shared assumptions within both the marketplace and public administration.76 This idea has a close affinity with the recognition of more deliberative processes, which it has been argued can enhance the quality of public engagement, as well as potentially influencing outcomes, improving (in our present context) opportunities for achieving ‘a more ecological way of thinking about social policy’.77 This can become a socially valuable process in three ways: by, first, encouraging societal engagement in the face of the obstacles that follow from scientific uncertainty; second, introducing longer risk timelines that extend beyond present concerns; and, third, supporting goals of environmental justice by establishing commitments to openness and empowerment, and so countering fears of exclusion.78