Just Transition in National Climate Law: Lessons from Scotland

Writer: Nicola Sharman (published 30.9.2021)

The concept of just transition is going to play an increasingly prominent role in climate mitigation policy as global decarbonisation processes gather pace. Legal recognition of the concept remains limited, yet Scotland – where COP26 takes place – has positioned itself as a global leader in this domain by incorporating just transition principles into its climate legislation. This blog post outlines Scotland’s legislative approach and considers what lessons it might provide.

Just transition in climate law

Rapid transition to carbon neutral economies has the potential to create winners and losers. For this reason, it is important that socio-economic justice, encompassing values of equity, fairness and inclusion, is placed at the heart of policymaking. This encapsulates the concept of just transition. As countries begin to address the more challenging phases of their energy transitions from fossil-fuel based systems of production and consumption to carbon-neutral models, just transition principles should play a central role in climate policy.

This was recognised in the preamble of the 2015 Paris Agreement, in which the parties agreed to take into account ‘the imperatives of a just transition of the workforce… in accordance with nationally defined development priorities’. A UNFCCC work programme was furthermore dedicated to developing guidance on the concept, and the importance of just transition was endorsed by a large number of states in the 2018 Silesia Declaration. Both the UNFCCC work programme and the Silesia Declaration refer to the just transition guidelines adopted by the International Labour Organisation. However, the status of the concept of just transition in international climate law remains relatively weak and there are few examples of it being incorporated into national implementing legislation.

The Scottish legislative approach

Scotland challenges this status quo, despite the country’s standing as a devolved government of the UK meaning that it cannot be a direct party to the UNFCCC. Its devolved status means that the Scottish Government does not have the power to make its own foreign policy decisions, which remains a matter reserved to the UK Government. Yet, Scotland does have the power to pass independent laws related to the environment and has long framed itself politically as a climate pioneer. In 2009, Scotland passed ambitious framework climate legislation in the form of the Climate Change (Scotland) Act 2009, which was further amended in 2019 to bring its net zero emissions target forward to 2045 – 5 years ahead of the UK – and to introduce a set of just transition principles to guide government policy.

The importance of just transition to Scotland is easily understood through the still visible and severely negative impacts of the dismantling of the coal industry in the 1980s. On the one hand, the country is making notable progress through the steady development of its renewable energy sector. Yet there is concern that this is not producing the job market expected and oil and gas remains deeply embedded in the economy. These ongoing conversations highlight the challenges ahead and importance of a just transition narrative.

The just transition principles are defined in the Scottish legislation as:

‘the importance of taking action to reduce net Scottish emissions of greenhouse gases in a way which-

a) supports environmentally and socially sustainable jobs,

b) supports low-carbon investment and infrastructure,

c) develops and maintains social consensus through engagement with workers, trade unions, communities, non-governmental organisations, representatives of the interests of business and industry and such other persons as the Scottish Ministers consider appropriate,

d) creates decent, fair and high-value work in a way which does not negatively affect the current workforce and overall economy,

e) contributes to resource efficient and sustainable economic approaches which help to address inequality and poverty.’

Under the legislation, the government is obliged to update their climate policy plan every five years and explain how these principles have been taken into account in respect of different regions and sectors of the economy. The last update was published in December 2020 and referred to just transition throughout.

Scotland’s Just Transition Commission and Planning Framework

Supplementing the legislation, a Just Transition Commission (JTC) was also established in 2018 consisting of 12 members representing varied interests and expertise, from academics in climate science and economics to representatives from the energy sector, the farming industry, climate NGOs and trade unions. This Commission was given a 2-year mandate to provide independent advice to the government on how to apply the just transition principles.

Following stakeholder consultations, in March 2021 the JTC published a report containing four key overarching messages. These include the need for an ‘orderly and managed’ transition, fair distribution of costs and benefits, the need for skills development and education, and community empowerment. Under these headings, the JTC put forward 24 more specific recommendations, for instance linking additional consumer costs resulting from emissions reduction with ability to pay, developing a ‘Sustainable Scotland’ brand for agriculture produce and creating skills guarantees for workers in carbon-intensive sectors.

The JTC’s final report was generally well received and on 7 September 2021 the Scottish Government issued their formal response, accepting all 24 recommendations and committing to the establishment of a Just Transition Planning Framework. Moreover, it was announced that a new Just Transition Commission will be set up for the remaining duration of the current parliamentary term to 2026, with a mandate to support the development and monitoring of the Planning Framework.

What can we learn from Scotland?

It remains to be seen to what extent the just transition principles and recommendations of the JTC will be implemented in practice and how the Planning Framework will take shape. However, the initial steps that have been taken in Scotland in relation to just transition can be considered to be one of the most comprehensive examples in the world and thus, in the meantime, several lessons can be learned from Scotland’s model.

First, Scotland demonstrates that while it may be difficult to infer measurable substantive duties relating to just transition, procedural obligations can act to ensure that its principles are embedded into policymaking. Just transition principles by their very nature provide only a framework to guide complex decisions and must be carefully operationalised according to context and evolving circumstances. The government’s duty to explain how principles are being applied serves as a means of keeping government accountable and subject to public scrutiny.

Second, Scotland exemplifies a particularly holistic approach to just transition. While many initiatives found elsewhere only consider the workforce and specific energy sectors such as coal (for example Canada’s Coal Transition Initiative), the JTC identifies place-based communities and consumers as key stakeholders, while also considering all elements of the economy in a cross-sectoral approach that aims to coordinate different policy strands.

Third, Scotland is illustrative of the role and value of an independent commission to translate framework principles into implementable policy measures. Stakeholders have already been able to use the findings of the first JTC as leverage to reinforce their demands of government.

Finally, Scotland’s renewed mandate for the JTC demonstrates a recognition of the need for long-term, flexible strategies that provide an opportunity for iterative dialogue and learning as circumstances evolve throughout the transition process.

Writer Nicola Sharman is a PhD Researcher at the University of Eastern Finland. Her work forms part of the 2035Legitimacy project and will explore the legitimacy dimensions of international climate decision-making processes.

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