Comparative analysis of legal mechanisms to net-zero: lessons from Germany, the United States, Brazil, and China

Abstract

Amid mushrooming net-zero commitments and pledges made by states and non-state entities, a gap remains between those pledges, and the action needed in order to stay within the temperature goals of the Paris Agreement. In response, scholars and policymakers have started to examine physical, technological, economic, and policy pathways to net‐zero emissions across different sectors. This article examines the existing legislation and litigation for a net-zero world in four jurisdictions: Germany, the United States, Brazil, and China. We propose a taxonomy for identifying and comparing existing legal mechanisms to reach net-zero across these jurisdictions. We identify and analyze different legislative and regulatory mechanisms that incorporate net-zero mandates and three net-zero litigation strategies in these countries. These jurisdictions provide a useful snapshot of the variety of legal mechanisms currently being used by, or imposed on, large emitting jurisdictions and entities. We then consider the critical ways in which climate law can contribute to, or hinder, emissions reductions in line with net-zero targets.

Keywords:

• Net-zero emissions
• comparative analysis
• legal mechanisms
• decarbonization
• climate law and litigation
• climate change

Disclosure statement

Lisa Benjamin is the Vice Chair of the UNFCCC Compliance Committee (Facilitative Branch). This article reflects the views of the author and does not necessarily reflect the views of the Compliance Committee.

Data availability statement

All data are publicly available and properly cited. This article uses the Climate Change Laws of the World (CCLW) database to identify legislative and regulatory mechanisms. All documents are available at https://climate-laws.org/.

Notes

1 For the purpose of this paper, we are considering the scope of company reporting and disclosure as defined in the report entitled “Recommendations of the Task Force on Climate-related Financial Disclosures” published in June 2017 by the Task Force on Climate-related Financial Disclosures, available at: https://www.fsb-tcfd.org. The list of disclosure mentioned in various sections is not meant to be exhaustive but is more illustrative of the variety of approaches taken by different jurisdictions.

2 564 US Sup Ct 2011, holding that the Clean Air Act displaces any federal common law claim seeking abatement of carbon dioxide emissions

3 See, for example, Juliana v United States No. 18-36082 (9th Cir. 2020) which failed on standing grounds. There are multiple legal actions brought by states, cities, municipalities and even private industry such as fishing groups against a diversity of carbon major companies.

4 Another regulatory mechanism is provided by the U.S. Federal Trade Commission (FTC), an independent agency originally founded to enforce antitrust legislation which now serves as the primary federal consumer protection body. Article 5 of the FTC Act, the 1914 law that created the agency, prohibits ‘unfair or deceptive acts or practices in or affecting commerce.’ [80] The FTC can bring lawsuits against companies found to have violated the Act, such as the successful 2017 case that required Volkswagen to compensate consumers who purchased cars marketed as running on ‘clean diesel.’[81]

5 By virtue of the socialist character of the Chinese political economy, the single party system of governance, and the relative youth of the political project as a whole, fitting China into the taxonomy developed herein is necessarily challenging. However, instead of dismissing China as a known quantity, as is sometimes the tendency in Western and Global North academia, we sought to make a good faith effort to push back against implicit biases, and seek primary source policy documents and legislation to supplement our research and ensure that this article would cover a diversity of jurisdictions, not just those familiar to us.

6 The full 5-Year Plan was produced by the Chinese Communist Party and passed into law by the National People’s Congress.

Additional information

Funding

Funding was provided for this research through the Climate Social Science Network CSSN.org.