The Scottish Climate Emergency Legal Network (SCELN) has succeeded in its campaign to have the UK’s Climate Change Act amended, so that it no longer ignores the potent greenhouse gas nitrogen trifluoride (NF3). This has been achieved by UK Parliament’s recent enactment of the Climate Change (Targeted Greenhouse Gases) Order 2023 (passed February 2023).[1]
Background to SCELN and the Campaign
SCELN was founded by a group of socially conscious lawyers and activists in early 2020. Intent on taking on the dangers posed by climate change, its first meeting was chaired by Professor Tom Mullen in a crowded room at the Legal Services Agency, Glasgow (January 2020).
Amongst a diverse array of initial activities, SCELN established a “Legislation Working Group”. This group, which I originally chaired, was established to explore issues arising in the area of climate legislation. We took as our focal point a problem I had identified and discussed in a book I had written, Climate and Energy Governance for the UK Low Carbon Transition (Palgrave, 2019).
Put simply, the UK was governing and reducing six greenhouse gases under its national Climate Change Act – carbon dioxide, methane, nitrous oxide, and others. But it should have been governing seven. The wayward gas that was being ignored was nitrogen trifluoride, or NF3, an extremely potent gas used increasingly in the electronics industry.
The correct number of gases were being governed by the international legal framework (the Koyto Protocol), the EU’s regime, and even by the Scottish legal framework within the UK. The Scottish Parliament had incorporated the seventh gas in 2015, under amendments to its Climate Change (Scotland) Act 2009.
The “Seventh Gas Campaign”
With the UK legislation governing only six of the seven essential greenhouse gases, it was time to launch a “Seventh Gas Campaign” to correct things. Our Legislative Working Group, comprised of lawyers Paul Brown, Ben Christman, Roddy Gibb, Gerry McNally, and I, set about doing just that.
The campaign’s first major action was to submit a solicitor’s letter to then Secretary of State Alok Sharma MP, requesting that he use his powers under the UK Act to amend the legislation so as to incorporate NF3. Our team accompanied the letter with a brief on the legal issues, and indicated that judicial review of a failure to make the amendment would be seriously considered. A scientific brief was also provided, produced by atmospheric scientist Professor Javier Martin-Torres. This set out the characteristics and effects of NF3, and elaborated the reasons why the amendment needed to be made on scientific grounds.[2]
Next Steps: Complaint Lodged with the European Commission
UK Government was unresponsive to these requests, and so lawyer Ian Cowan and I lodged a written complaint with the European Commission (December 2020), alleging a breach of EU law. The Commission opened the complaint but was required to close it when the Brexit transition period came to an end on 31 December 2020; however, the action had the desired effect of prompting a response to from UK Government. SCELN was now informed that our request was under consideration.
Caroline Lucas MP Gets Involved
By 17 May 2021, UK Government continued to inform SCELN that its correspondence remained under consideration, but no more.
To break the deadlock, SCELN’s Ben Christman led on outlining the Campaign’s situation to Caroline Lucas MP. Presently, Caroline agreed to put the following Parliamentary Question to the Government (tabled 9/6/21):
To ask the Secretary of State for Business, Energy and Industrial Strategy, whether he plans to amend the definition of greenhouse gases in the Climate Change Act 2008 to include Nitrogen Trifluoride.
Minister Anne-Marie Trevelyan was compelled to respond to the proposed NF3 amendment in the affirmative on public record.
The Campaign was then met with a further extended period of silence from UK Government. After additional strategic coordination with Caroline Lucas’s office, it was agreed Caroline should put a further Parliamentary Question (tabled 2/9/23):
To ask the Secretary of State for Business, Energy and Industrial Strategy, with reference to the Answer of 18 June 2021 to Question 13025 on Nitrogen Trifluoride, for what reason his Department has not brought forward legislation to amend the definition of greenhouse gases in the Climate Change Act 2008 to include nitrogen trifluoride; and what the revised timetable is for doing so.
Minister Graham Stuart responded that “Legislation will be introduced to Parliament as soon as parliamentary time allows.”
Success
After sustained pressure, this crucial amendment has now been made, in a Statutory Instrument passed by UK Parliament on 2 February 2023:
https://www.legislation.gov.uk/uksi/2023/118/pdfs/uksi_20230118_en.pdf
This brings UK climate law more acceptably into line with vital legal standards in the struggle against climate change. It also demonstrates what is possible when justified grassroots legal activism demands change.
[1] https://www.legislation.gov.uk/uksi/2023/118/pdfs/uksi_20230118_en.pdf
[2] These documents can be read here: https://www.ercs.scot/blog/scottish-climate-emergency-legal-networks-seventh-gas-campaign/
