Policy brief | Legal Reforms for Achieving Carbon Neutrality by 2050

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Pilar Moraga, Principal Researcher of the Center for Climate and Resilience Research (CR)2, Dominique Hervé, Research Associate of the Center for Climate and Resilience Research (CR)2, and Verónica Delgado, Research Associate of the Center for Climate and Resilience Research (CR)2.

Chile has set itself the goal of achieving carbon neutrality by 2050 with the aim of meeting the objective of the Paris Agreement, which seeks to limit the increase in the average world temperature to 2 °C and to pursue efforts to limit the temperature increase even further to 1.5 °C, as set out in the IPCC’s Special Report on the impacts of global warming of 1.5 °C, published in 2018.

The national goals for moving toward low-carbon economies and the actions to achieve these are unique to each State, through Nationally Determined Contributions, and in that context legal and regulatory frameworks have a fundamental role to play. Thus, we consider that this transition requires redefining the country’s current legal frameworks.

With this in mind, the report titled “Identificación de Reformas legales para alcanzar la meta de carbono neutralidad en Chile al 2050” was prepared and launched in April of this year, from which we highlight the main results and conclusions in this policy brief.

In preparing and developing said report we found: (1) four areas of legal mitigation reforms relevant to achieving carbon neutrality by 2050; (2) the identification of different legal bodies of diverse regulatory hierarchy, such as constitutional, legal and administrative regulations; (3) the grouping of mitigation measures in regulatory typologies, such as prohibitions, incentives or regulations; and (4) areas that give rise to a debate among experts, and between experts and the general public.

Area of Legal Reforms

Although mitigation is linked to human-based solutions, i.e. sectorial mitigation to limit CO2 emissions (energy, transport, forestry), the report adopted a broader view (see Table). As such, the following was taken into account: (a) the control and fixing of a limit on CO2 emissions, CO2 equivalent, other greenhouse gases and short-lived climate pollutants at the national level; (b) the creation of standards of incentives and disincentives in the energy, transport and forestry sectors, establishing standards for transparency of information, better compliance inspection and monitoring, and strengthening the environmental impact assessment system (SEIA), among others; (c) nature-based solutions, understood as the protection and safeguarding of those ecosystems that contribute to climate stabilization and their contribution to carbon capture and sequestration, such as natural forests, wetlands, coastal and marine ecosystems, peat bogs, among others; and (d) governance actions, which will allow for, from a legal point of view, the strengthening and participation of all State actors in solving climate change-related issues.

Bodies of Law and the Inter-sectoral Nature of Climate Change

The bodies of law that need to be amended in order to implement the proposed measures belong to different regulatory hierarchies: constitutional, legal and administrative, reflecting the different levels of complexity involved in moving towards carbon neutrality. It is also worth noting that each identified body of law impacts several productive sectors, confirming the cross-cutting and inter-sectorial nature of climate change and the need to adopt a comprehensive and holistic view of the transition process towards a low-carbon economy, including the legal framework.

Regulatory Typologies

The regulatory typologies were grouped into different types of instruments:

  1. Regulatory instruments: Understood as the adoption of standards of quality, emission and processes as well as the establishment of prohibitions or restrictions. They include changes to the SEIA and certain authorizations related to the use of natural resources.
  2. Economic instruments: These comprise a significant percentage of the total measures (19 %). They refer to taxes, subsidies, incentives and certifications. It is worth noting that when speaking of taxes we not only refer to the imposition of taxes, but also to their reduction in certain cases and exemption in others.
  3. Planning instruments: Understood here as both territorial and urban planning, as well as natural resources use and management planning. Emphasis is placed on measures related to natural forests and wetlands. A need is also established for planning the use of certain natural resources that are considered strategic for achieving carbon neutrality and adequate decontamination plans.
  4. Information instruments: These comprise measures needed for the various institutions involved in reducing emissions to achieve greater transparency. We have proposed measures for labeling and certifying certain products in terms of their carbon footprint, lobbying regulation, education and research.
  5. Cooperation instruments: These comprise the least identified measures, but we consider that they are also very relevant. In this case the willingness of regulated parties to join certain objectives or implement certain measures is key. As an example, we can refer to the Clean Production Agreements.
  6. Compliance monitoring instruments: Includes enhancing the State’s inspection and monitoring capacities, particularly the Superintendency of the Environment, but also those of other important agencies involved, for example, in the inspection and monitoring of forest clearing. It is worth noting here the generalized nature of the public administration in its compliance inspection and monitoring role and also in establishing or toughening certain offenses.
Areas of Debate

Regarding the measures identified in this study there was, overall, a rather significant consensus among all participants, experts and the public involved in their development. Nevertheless, we identified certain areas that left room for debate, not with respect to the measures per se but on how to achieve them and which one necessarily requires a legal reform or a specific measure to achieve their objectives.

Certain exceptions in four areas were identified: (1) how to formulate a legal framework that defines the national limit of CO2 emissions and/or other short-lived pollutants; (2) how to increase the share of non-conventional renewable energies in the electricity matrix; (3) definitions of the closure of coal-fired plants, in the sense as to whether closures should be done gradually over time or that they cannot be prohibited; and 4) how to create the necessary conditions in the country so as to have sustainable transportation.

Other areas can be added such as the carbon sink capacity of wetlands and peat bogs, and how to enhance the competencies and jurisdiction over climate change-related matters in regional and local governments.

Conclusions

Adopting measures to achieve carbon neutrality can no longer be understood as a sectorial mitigation linked exclusively to human action. On the contrary, a holistic view is needed that requires the implementation of appropriate governance and measures that seek to protect natural carbon sinks (nature-based solutions). Each body of law identified has effects on several sectors (productive and non-productive), confirming the inter-sectorial nature of climate change as well as the need for a comprehensive view of the transition process towards a low-carbon economy. Advancing towards a low-carbon economy requires crosscutting changes to the various normative hierarchies (constitutional, legal and regulatory), which in turn is related to different sectors. This takes on a special dimension at a time when the possibility of drafting a new Constitution is under discussion. The measures adopted are not exclusive to the State’s institutional framework, but rather also refer to the decision-making process with the engagement and participation of different stakeholders.