Dr Thomas Muinzer

Since its inaugural meeting at the Legal Services Agency, Glasgow, on January 20 at the beginning of this year, the Scottish Climate Emergency Legal Network (SCELN) has been meeting on a regular basis, engaging itself in a range of activities and events. SCELN’s intention has been to draw together a network of legal experts and activists in an inclusive manner in order to strategise on ways to galvanise positive change in Scotland and beyond in the face of the climate change challenge. The network places a particular emphasis on the methods and tools provided by law and the legal system for such purposes.

A key element of SCELN’s work at present is its “Seventh Gas Campaign”, which has just been launched. Here, the group is requesting that Alok Sharma MP, the Secretary of State for Business, Energy and Industrial Strategy, expands the definition of “greenhouse gases” under the UK’s Climate Change Act 2008 to include Nitrogen Triflouride (NF3).

The Climate Change Act 2008 is an extensive framework Act passed by national parliament that governs the UK’s response to climate change. Amongst a broad range of innovative legal features, it includes the UK’s well-known “Net Zero” obligation, i.e., the requirement that UK greenhouse gas emissions are to be reduced to net zero levels by 2050 (Climate Change Act 2008, s.1(1)).

SCELN has observed that the national greenhouse gas emissions reduction scheme established by this Act governs six greenhouse gases: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride. Although these six gases covered what was considered to be the appropriate range of greenhouse gases treated under framework climate regimes some 12 years ago when the Act was first passed, SCELN has pointed out that the scientific consensus has since developed, such that a seventh greenhouse gas now requires incorporation into such regimes. The Climate Change Act provides the Secretary of State with the authority to update the list of gases.

The seventh gas, NF3, was absent from the important First Commitment Period of the Kyoto Protocol to the United Nations Framework Convention on Climate Change, which ran from 2008–2012, but it has been incorporated into the Second Commitment Period (2013–present, ending at the close of 2020). The addition occurred in partial response to a revision to the scientific greenhouse gas reporting guidelines issued by the Intergovernmental Panel on Climate Change, which added NF3 to the guidelines in this period. EU law has also reacted, developing its Effort Sharing Decision regime, which governs emissions reductions in key sectors including transport, buildings and agriculture, to incorporate NF3 in 2018 (see Effort Sharing Regulation, EU 2018/842).

While the UK is now clearly out of step with international legal and scientific standards, SCELN has also pointed out that the UK’s national framework has fallen behind various internal UK climate standards as well. Scotland’s devolved parliament has updated the six greenhouse gases originally covered by its substate framework legislation, the Climate Change (Scotland) Act 2009, by amending it in 2015 to add NF3. In doing so, the Scottish government sought prior advice from the Committee on Climate Change, that is, the important national advisory and reporting body established under the UK Climate Change Act itself. The Committee advised that “Nitrogen Triflouride should be included in the list of targeted greenhouse gases”, and although the advice was directed to the Scottish administration by virtue of the Scottish government requesting it, it is clear that the scientific logic compelling the inclusion of the seventh gas in the Scottish framework indicates that its addition to the national regime is also appropriate. Thus, the devolved Assembly in Wales followed this guide when passing its Welsh climate legislation, incorporating NF3 in order to govern the seven greenhouse gases (see the Environment (Wales) Act 2016, s.37(1)(g)).

SCELN has just submitted a solicitor’s letter to the Secretary of State, calling on him to extend the definition of “greenhouse gas” under the UK’s Climate Change Act to incorporate NF3. The letter is accompanied by a detailed legal brief that outlines legal reasons why the change should be made. It also indicates that judicial review of a failure by the Secretary of State to expand the definition should be seriously considered, on grounds of illegality and irrationality. The solicitor’s letter cautions that in addition to considering judicial review, SCELN may raise a complaint with the European Commission.

These legal documents are accompanied by a scientific statement from atmospheric scientist Professor Javier Martin-Torres, which emphasises that although NF3 is released into the atmosphere in reasonably small quantities, it is a very powerful greenhouse gas that contributes significantly to the climate crisis.

SCELN invites all those concerned with halting the climate crisis to support and join in its Seventh Gas Campaign.