The Climate Change (Scotland) Act 2009 received Royal Assent on 4 August 2009. This Act is separate from, but complementary to the UK-wide Climate Change Act 2008 and is intended to set out the framework of how the impact of climate change on Scotland will be handled.

Our review of the 2009 Act will be dealt with in three separate E-Bulletins. This Part 1 gives a general overview of the Act and highlights some of the general themes, comparing aspects of the Act with the 2008 Act. Part 2 will consider the impact of the 2009 Act on, primarily, commercial property; and Part 3 will discuss some of the more specific measures in the Act and consider the potential impact of these on business.

The underpinning focus of climate change is the reduction of greenhouse gas emissions. Governments are setting targets for emissions reduction. In Scotland, the 2009 Act sets an overall target of an 80% reduction in Scottish emissions of greenhouse gases by 2050, compared to 1990 levels. Annual targets are to be set through secondary legislation in order to ensure that this reduction is achieved. The language of the 2009 Act is unequivocal: it provides that Scottish Ministers must ensure that the net Scottish emissions account for the year 2050 is at least 80% lower than the baseline.

This wording echoes that which is used to set the same UK-wide 80% target and 2050 timescale in the UK Climate Change Act. But there is as yet no clear process for enforcing this target. The 2009 Act sets out a framework, but the detail has still to be produced, and is likely to involve a mixture of obligations and incentives on business, the public sector and individuals, fostering the development of new technologies to tackle the climate change challenges, and devising adaptation and mitigation, as well as reduction strategies that will combine to deliver the necessary emissions reductions, with annual target setting meaning that how well the targets are being met will be constantly monitored.

If targets slip, it must be open to the Scottish Government to take more radical steps to achieve the desired targets: simply relying on popular and international pressure is insufficient incentive for successful change. The 2009 Act imposes extensive reporting requirements on Scottish Ministers, so that if targets are not met, the reasons why they have not been achieved must be explained. In setting the annual targets, the Scottish Ministers have to set out their proposals for meeting those targets, and where targets are not met, they must devise further policies for the future, to compensate for excess emissions.

As well as providing for annual targets, the 2009 Act sets an interim target of a 42% reduction in greenhouse gases by the year 2020. This figure should be contrasted with the target set in the UK Act of a 34% reduction in greenhouse gases for the UK as a whole by 2020.

It is not clear what the significance of this difference will be to the way in which Scotland will approach its commitment to emissions reduction, compared to the rest of the UK, or whether this difference will create tensions between the two regimes. Scotland is subject to the UK Act, and must therefore contribute to the shared UK target, but Scotland faces specific challenges to combating climate change due to its land use and agriculture that make emissions reduction more difficult than elsewhere in the UK. Areas where significant inroads could be made, such as taxation and power generation, are reserved matters which the Scottish Government cannot control directly, giving rise to concern that constitutional issues could hinder Scottish progress towards its harder target.

How do the targets apply in Scotland?

The Baseline

How do we monitor how well we are making inroads into our emissions of greenhouse gases? The reduction targets are based on the net volume of Scottish emissions of the basket of six greenhouse gases that were recorded for particular years. For carbon dioxide, methane and nitrous oxide the baseline year referred to in the 2009 Act is 1990. For the other three greenhouse gases, the baseline year is 1995. Calculation of the amount of the Scottish emissions of these gases will record the amount of these gases actually emitted in Scotland, and in addition apply a share of emissions from gases emitted by international aviation and international shipping in each year, to be compared against the 1990 and 1995 figures.

The Net Scottish Emissions Account

It is the net amount of Scottish emissions that is relevant for determining whether targets have been achieved. For any one year this will consist of the total of Scottish emissions of greenhouse gases, reduced by the amount of those gases that are removed from the atmosphere due to land use, land-use change or forestry activities in Scotland. The resultant figure will be adjusted, for the purposes of the "net Scottish Emissions Account", to reflect carbon units credited to and debited from the account, but there will be limits placed on the amount of carbon units that can be attributed.

What is a 'Carbon Unit'?

A carbon unit represents a reduction or removal of greenhouse gas from the atmosphere but can also be an amount of greenhouse gas emissions allowed under a scheme or arrangement imposing a limit on emissions, for example the Emissions Reduction Units currently traded via the European Union Emissions Trading Scheme, each of which is equivalent to one metric tonne of CO2 equivalent.

Scottish Committee on Climate Change

The Scottish Ministers are required, as a result of the Act, to consult with an advisory body which is to provide advice regarding the setting of annual targets under the Act. The relevant advisory body is the UK Committee on Climate Change, but the Act also entitles the Scottish Ministers to set up the Scottish Committee on Climate Change, which will have broadly the same role. There is no requirement for the Scottish CCC to liaise with the UK CCC, which may have potential for a divergence of approach between the Scottish and UK Committees.

The Act is certainly a bold piece of legislation which sets ambitious targets to reduce Scotland's carbon footprint. But much of the detail of how some of the provisions of the Act are to work in practice and the consequent effect on business in Scotland, is as yet unknown.