Written by Terry Townshend.

National legislation is often cited as a critical element of a credible and effective international response to climate change. National laws not only help to create the political conditions that enable an international climate change agreement to be reached but, once the new agreement is sealed, it is national legislation that will put in place the necessary enforcement and accountability mechanisms to ensure effective implementation.

Despite the recent progress made on domestic climate change legislation across the world – as of the end of 2013 there were 487 climate-related laws in 66 countries covered by the GLOBE Climate Legislation Study, as opposed to just 37 in 1997. The two countries responsible for the largest share of global greenhouse gas emissions, the US and China, have so far not passed dedicated climate change laws.

The United States came close to passing a dedicated climate change law in 2009 when the so-called “Waxman-Markey” bill passed the House of Representatives but was defeated in the Senate, largely due to a combination of successful lobbying by pro-fossil fuel corporations and elements of the, mostly Republican, political ideologues who viewed any environmental regulation as “red tape” and a drag on business. However, following the Supreme Court ruling that CO2 was a pollutant and thus subject to regulation by the Environment Protection Agency (EPA), the U.S. Administration is now by-passing Congress and using executive powers to regulate CO2. This approach will enjoy less certainty of longevity than legislation, as any new Administration could overturn many of the regulatory measures. However, it is beginning to have an impact and US greenhouse gas emissions are falling, partly due to the new regulatory measures.

What is less well known – due to the lack of transparency in the domestic political debate – is that China has gone through a very similar experience.

In 2009, the National Peoples Congress passed a comprehensive Climate Change Resolution that paved the way for a national climate change law. On 7 November 2010, Wang Guangtao (Chair of the Environment Protection and Resources Conservation Committee of the National Peoples Congress) made the announcement that China would begin work on comprehensive climate change legislation.

Initially the aim was to have coherent, economy-wide climate change legislation in place before the UN negotiations in Paris in 2015. For China to have participated in those negotiations having just passed a climate change law would have been a public relations coup and would have put them a step ahead of the U.S.

There was always going to be a tension between passing the law by the end of 2015 in order to have maximum international impact and the level of detail and ambition. The higher the level of ambition and the more sectors of the economy covered by the law, the longer the drafting and approval process would take and the more likely opposition would be encountered.

The first draft of the climate change law was developed by the Climate Change Department in the powerful National Development and Reform Commission (NDRC) in consultation with the National Peoples Congress, academics and climate-related think-tanks such as the NDRC-affiliated National Center for Climate Policy and International Cooperation (NCSC). However, it appears that due to the opposition to the first draft, there is a very real possibility that the “Climate Change Law” will be dropped in favor of a ‘softer’ “Low Carbon Promotion Law”. This new piece of legislation might include carrots, such as incentives for greater energy efficiency, electric vehicles and strengthened consumer labeling, but no sticks such as hard targets with penalties for non-compliance.

The reason for this uncertainty – as in the U.S. – was the reaction by industrial interests, led by the coal and other high carbon industries. The lesson here is that, despite being governed by a one-party system, China has politics too.

However, whatever happens with China’s climate change law, it is worth emphasizing that, just as in the U.S., China has implemented regulatory approaches, and is testing others, that could have similar effects to the proposed climate change legislation.

China’s climate-related legislative base has been dominated by a focus on energy saving, reflecting the need for the country to improve energy efficiency to enable it to keep pace with energy demand as the economy grows strongly. China has the Energy Conservation Law of the People’s Republic of China and the 2005 Renewable Energy Law of the People’s Republic of China, and is planning a new Energy Law of the People’s Republic of China, the draft which contains provisions on the promotion of clean energy and energy efficiency.

The 12th Five-Year Plan, published in March 2011, includes a target to reduce the carbon intensity of its GDP by 17% from 2005 levels by 2015 (in line with the 40–45% target by 2020 committed to by China under the Copen­hagen Accord). It also increases the number of pollutants included in the “total emissions control” system and sets new targets for the energy intensity of GDP (a reduction of 16% by 2015). The Plan increases the percentage of non-fossil fuel in energy mix (from 8% in 2011 to 11.4% by 2015) and targets forest coverage of 21.6%. There is speculation that the 13th Five Year Plan, due for approval in 2016, will include an emissions cap.

As well as the national level laws and regulations, there is much activity at the sub-national level. China often pilots policies and mechanisms at the Provincial/Municipality level and, if successful, scales up these initiatives to the national level. Seven Provinces and Municipalities (Beijing, Chongqing, Guangdong, Hubei, Shanghai, Shenzhen and Tianjin) are piloting emissions trading systems, the experiences of which will inform the design of a national scheme, likely before 2020.

Legislation is also tested in this way. For example, in October 2012, Shenzhen Municipal People’s Congress passed the Provisions of Carbon Emission Management of the Shenzhen Special Economic Zone to strengthen the management of carbon emission trading, the first such legislation in China. Similarly, the provinces of Shanxi and Qinghai (with economies the size of Hungary and Bolivia respectively) have, in the last two years, passed provincial climate change laws and legislation is being also developed in Sichuan and Jiangsu provinces (economies the equivalent size of Malaysia and Switzerland). These sub-national efforts will inform the development of national laws.

So, just as in the U.S., dedicated climate change legislation has faced serious political opposition. However, just as with the US, China’s efforts to tackle climate change should not be judged on whether it can pass a dedicated climate change law; there are many regulatory approaches being implemented and piloted, and the real test is whether the combination of legislation, regulation and policy is effective in reducing greenhouse gas emissions.

 Terry Townshend is an independent consultant on environmental legislation based in Beijing