Identifying instruments to implement climate change adaptation and mitigation policy has become a pressing issue both for environmental law and for environmental lawyers. We have seen the beginnings of a legislative approach (and an innovative one at that) in the UK with the Climate Change Act of 2008. The 2008 Act initially set 'legally binding targets' for carbon dioxide reduction from 1990 levels of at least 34 per cent by 2020 and 80 per cent by 2050. Following the advice of the Climate Change Committee government agreed to apply these reduction targets to all GHGs,1 and it is this which effectively brought agriculture under its remit: although the agriculture sector currently contributes 7 per cent to UK GHG emissions by source, its GHG emissions mainly comprise nitrous oxide (54%) and methane (38%) - CO2 contributes only 8 per cent.2 Exploring how climate policy can be implemented in the farming sector presents difficulties and Defra's Carbon Reduction Delivery Plan3 has implications for the future shape of England's farming industry.
THE PROBLEM DEFINED
What role can the law play in climate policy implementation? The climate debate has been dominated bv the natural sciences and scientific evidence will define 'what needs to be done'. To will the ends is not, however, tantamount to willing the means - far from it. Indeed, the imperative nature of the problem has encouraged a style of policy that might be characterised as 'heroic', or declamatory. The Climate Change Act 2008 is itself paradigmatic of this type of approach - setting ambitious, science-driven objectives that imply widespread and radical change, but with little regard to the practicalities of implementation. This style of legislation may demonstrate the necessary commitment to act, but avoids any detailed prescription of what to do to implement its objectives, for fear that this might restrict the flexibility to respond to the uncertainties that lie ahead. The inherent danger of this legislative style is an 'implementation gap* between ambitious targets for GHG emission reduction and the lack of an appropriate strategy to deliver the necessary changes in producer and consumer behaviour. The natural sciences can tell us what needs to be done - this can be enshrined in targets in legislation - but how do we make it happen? It is inescapable that the social sciences (including law) have a major role to play in devising regulatory and incentive strategies that can deliver public policy effectively and in a sufficiently flexible manner that can respond to changing scientific evidence and predictions of climate change.
The Climate Change Committee estimates a 21 per cent fall in GHG emissions from UK agriculture between 1990 and 2008 and attributes this mainly to 'reduced activity as a result of reform of the Common Agricultural Policy'.4 This tells us little, however, about how the carbon footprint of the food we consume may have changed, if at all, because it is based on a territorial/UK production methodology which estimates GHGs emitted from UK agricultural production and not the GHGs emitted from the production of food consumed. The Climate Change Act also adopts a territorial/production, not a consumption auditing, methodology in apportioning to each government department a 'carbon budget' for the sector for which it is responsible. While agriculture accounts for about 7-8 per cent of UK GHG emissions,5 Defra's departmental budget of 15 per cent reflects its wider, food chain, responsibilities (GHG emissions from the total food chain are some 16.5 per cent).6 Even so, Defra has encouraged an approach that has a focus on monitoring and setting targets for emissions specifically from agricultural production. Recently, the Climate Change Committee has been prompted to raise 'questions about production- versus consumption-based emissions accounting approaches ... both as regards agriculture and more generally'.7 However, important as the Kyoto Protocol mechanisms are, more is at stake than the merits of different accounting frameworks.