AUTHOR (name and surname)

Ana Neves

COUNTRY

Portugal

YEAR

2022

Name of the act/s*

Climate framework Act

Subject area

Environmental Law

Brief description of the contents of the act

1.     The climate framework Act was enacted on 31 December 2021 and entered into force on 1 February 2022 February. It is the first law in Portugal that addresses climate issues in such broad terms.

It brings together a set of regulatory policy and legal instruments on climate change, reinforcing programmatic legal instruments - such as the National Strategy for Adaptation to Climate Change 2020, the Roadmap to Carbon Neutrality 2050, the National Energy and Climate Plan 2021‑2030, and the Action Programme for Adaptation to Climate Change 2019 (https://climate-adapt.eea.europa.eu/countries-regions/countries/portugal). It builds on the Environment Basic Law (Act no. 19/2014 of 14 April 2014 - https://leap.unep.org/countries/pt/national-legislation/environment-basic-law-no-192014), that sets out a climate change policy (Art. 11-(a)), which implies an integrated approach of the various socio-economic sectors and of the biophysical systems through a development strategy based on a competitive low carbon economy and on the adoption of mitigation and adaptation measures). The climate framework Act repeals the Act no. 93/2001, of 20 August 2001, that - to prevent climatic changes and address their effects –required the drawing up of a plan to reduce emissions, adapt to climate change, and raise awareness, and created a National Observatory on Climate Change to collect information on and research climate change, and report to the legislature.

2.     The climate framework law “lays the foundations for climate policy” (Article 1). The main objective is to achieve climate neutrality by 2050 (a neutral balance between greenhouse gas emissions and carbon sequestration) – Art. 18. It introduces targets to decarbonise the economy and to achieve sustainable development. The main targets are: i) to reduce at least 55% by 2030, 65% to 75% by 2040, and 90% by 2050 of greenhouse gas by reference to the 2005 figure; ii) to reach at least 13 megatons on average of equivalent net CO₂ sink from the land use and forestry sector and marine and coastal ecosystems between 2040 and 2050; iii) and to approve sectoral plans for mitigation and adaptation to climate change by the end of 2023 (Articles 14, 19, 22, and 74).

3.     The Act is divided into seven chapters, with the following sequence: general principles (Chapter I); climate rights and duties (Chapter II); climate policy governance (Chapter III); planning and assessment instruments (Chapter IV); economic and financial instruments (Chapter V); sectoral climate policy instruments (Chapter VI); and final and transitional provisions (Chapter VII). The main content of each of these Chapters is as follows:

a)     Regarding general principles, Chapter I declares a climate emergency (art. 2), sets 17 climate policy goals (art. 3) and eleven climate policy principles (art. 4). The objectives are, namely, the following: i) to promote a rapid and socially balanced transition towards a sustainable economy and society that are neutral in greenhouse gases; ii) to guarantee climate justice, ensuring the protection of communities most vulnerable to the climate crisis, respect for human rights, equality and collective rights over the commons; iii) to ensure a sustainable and irreversible trajectory of reduction of greenhouse gas emissions; iv) to promote the use of energy from renewable sources and their integration into the system national energy; v) to promote the circular economy, improving energy and resource efficiency; vi) to develop and reinforce current sinks and other carbon sequestration services; vii) to strengthen national resilience and capacity to adapt to climate change; viii) to combat energy poverty; ix) to stimulate sustainable financing and promoting information on climate risks by economic and financial agents; x) to ensure committed, ambitious and leading participation in international negotiations and international cooperation; xi) to reinforce the transparency, accessibility and effectiveness of information, the legal framework and information, reporting and monitoring systems.

The climate policy principles set out are the general principles of environmental law acknowledge in Portuguese legal system and also the international cooperation principle and the principle of valuing knowledge and science, based on which decisions are taken (Art. 4 (e) and (f)).

b)     In Chapter II, on climate rights and duties, it is enshrined the right to climate balance - defined as “the right to defend oneself against the impacts of climate change, as well to demand that public and private entities comply with their duties and obligations regarding climate change” – and procedural and participation rights; and “the duty to protect, preserve, respect and ensure the safeguarding of the climatic balance” (Articles 5 to 7 and 8). The chapter also lists the public and private entities concerned by climate-related actions (Art. 8).

c)     On climate policy governance (Chapter III), it is created the Council for Climate Action (CCA), which must prepare studies, assessments and opinions on climate action and related legislation (Art 13). The CCA includes, besides personalities of recognised merit with knowledge and experience in the different areas affected by climate change, the president of the National Council for the Environment and Sustainable Development (https://dre.pt/dre/detalhe/decreto-lei/221-1997-195800), a representative of the NGO's and at least one young citizen resident in Portugal (Art. 12).

Chapter III sets out also foreign policy guidelines. According to these, the Government must actively defend the definition of the climate refugee concept and its status, cooperate with countries of the global south, providing support for the implementation of the measures envisaged in the Sendai Framework for Disaster Risk Reduction 2015-2030 (https://www.undrr.org/publication/sendai-framework-disaster-risk-reduction-2015-2030); and to strive for the recognition by the United Nations of the stable climate as a Common Heritage of Humanity (Art. 15 (e) and (f); and https://www.commonhomeofhumanity.org/what-we-do).

Government must, as well, [p]romote climate security, identifying the risks and acting to prevent and mitigate the consequences of climate change on public order, security and peace, the integrity of people and property and the regular exercise of rights, freedoms and guarantees” (Art. 17).

d)     As regards the planning and assessment instruments (Chapter IV), on the one hand, Government must develop and update mitigation and adaptation plans (Articles 20-24), and must adopt a carbon budget. This shall establish “a five-year overall limit on greenhouse gas emissions, in alignment with other climate policy instruments and international guidelines” (Art. 20-1(b) and 7). On the other hand, it is provided that the State must have a “national inventory of anthropogenic emissions by sources and removal by sinks of atmospheric pollutants in accordance with European and international requirements and guidelines” (Art. 25) - National System for the Inventory of Emissions by Sources and Removals by Sinks of Air Pollutants, which was, in fact, created already in 2005 by Council of Ministers Resolution No 68/2005 - https://rea.apambiente.pt/content/greenhouse-gas-emissions?language=en). That Government shall also present to Parliament an annual report on climate policy execution (Art. 26); and legislative procedures must take into account the impact of their initiatives on the climate balance (Art. 27).

e)     With regard to economic and financial instruments, Chapter V establishes guiding principles on climate for budgetary and fiscal policies (Art 28). It is provided that a budgetary allocation for climate policy purposes shall be consolidated in the State Budget (art 29). Government shall create a category of tax deductions (Green Personal Income Tax), under the Corporate Income Tax Code, that benefits taxpayers who purchase, consume or use environmentally sustainable goods and services (Art. 30). It shall also subject petroleum and energy products to a carbon price determined in accordance with best international practices (Art. 32); and it shall provide for a specific financial instrument to support climate policies (Art. 33). Guiding principles on climate issues that public and private entities must adopt in their financial policies, financial management, support for capitalisation and borrowing are defined (art 34). The public and private agents and institutions, in their financing decisions, should take into account the climate risk and the climate impact (Art. 35-1). Failure to consider climate risk and climate impact in the short, medium and long term is considered “a breach of fiduciary duties” (Art. 35-3).

Regarding sectoral climate policy instruments, these concern energy policy, transport policy, materials and consumption policy, the agri-food chain, carbon sequestration strategies, climate education and research, development and innovation, international cooperation, the green economy and just transition, and enforcement (Articles 39-72). For instance, it is stated that the State shall encourage the decarbonisation of the electroproduction system, ensuring: (i) the production of electricity from renewable sources; (ii) the prohibition of the use of coal for the production of electricity, from 2021 onwards; and (iii) the prohibition of the use of natural gas of fossil origin for the production of electricity, from 2040 onwards, provided that security of supply is ensured (Art. 40).

Comment

According to Parliament Environment, Energy and Spatial Planning Committee, the aim of the climate framework law “is to comply with the provisions of Articles 9 ("Fundamental tasks of the State") and 66 ("Environment and quality of life") of the Constitution of the Portuguese Republic …, making the right to a healthy environment a reality” (opinion of 10 January 2020 -https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=44220).

The Act under comment is a comprehensive regulation of multiple aspects that impact on climate on different sectors (such as the energy industry, construction, agriculture, fisheries, financial assets and green taxation). Four aspects stand out in this regulation:

a)     The complexity and porosity of the law

The Portuguese climate framework law matches the “trend in the adoption of formal climate legislation that is economy-wide or cross-sectoral in scope, sets out both a broad and long-term direction for climate policy, and ensures some measure of accountability for the executive branch” (Jennifer Huang, “Exploring Climate Framework Laws and The Future of Climate Action”, 38 Pace Environmental Law Review, 2021, p. 285 [https://digitalcommons.pace.edu/pelr/vol38/iss2/3]). In fact, it recognises the current climate emergency and encompasses a large range of principles, subjects, instruments, and ways of implementation, providing a durable legal framework for tackling climate challenges.

Nevertheless, despite being a framework law, it has high normative density, and is complex. In fact, several of its provisions are programmatic and aspirational, and many other are repetitive, not clear and understandable to citizens. Moreover, the issuing of several further regulations is foreseen. For instance, the Government shall approve the first set of sectoral mitigation plans within 24 months (Art. 22-3); and municipal climate action plans have to be approved by the municipal assemblies also up to 24 months after the entry into force of the law (Art. 14-2); the regulatory and supervisory bodies shall, within one year from its publication, identify the legislative and regulatory changes necessary for companies to integrate exposure to climate scenarios and the potential financial impacts resulting therefrom into corporate governance, following the recommendations of Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 (and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups), the taxonomy principles on environmentally sustainable activities of the European Union and international recommendations and good practices (Art. 78).

Therefore, it is a multifaceted and demanding law, that will be difficult to implement, within the constraints of national institutional system (for a diagnosis of this, see, for example, Supporting reforms that contribute to efficient and high quality public administrations - https://ec.europa.eu/reform-support/strengthening-regulatory-impact-assessment-portugal_pt; and

 SWD (2021) 146 final, Commission Staff working document Analysis of the recovery and resilience plan of Portugal - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021SC0146).

b)    An Act in dialogue with EU law

The Portuguese climate framework law does not mention the European climate law or correlated specific regulation (Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and Regulation (EU) 2018/1999 of 11 December 2018 on the Governance of the Energy Union and Climate Action). Nevertheless, there is a clear link to the Portuguese commitments within the European Union. Namely, it provides that:

a)     Budgetary and fiscal policies should respect “adequate European funding for investments and activities necessary to meet climate policy objectives” (Art. 28-(a));

b)     The revenues of the foreseen financial instrument dedicated to climate change shall include the amounts resulting from auctions relating to the European Emissions Trading Scheme (Art. 33-1);

c)     The application of the principle of transparency shall follow the European recommendations on non-financial and climate reporting and the best international practices (Art. 34-(c));

d)     Regarding financial system, the information on the relationship between investments and climate change must comply with the EU taxonomy on environmentally sustainable activities (Art. 35-6; and Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088);

e)     “The central, regional and local administrations must, preferably, finance projects, contract services or concession public services, exclusively or partially, that comply with the principles of the taxonomy on environmentally sustainable activities of the European Union” (Art. 36-4);

f)      It is required that by 2030 all State public assets satisfy the principles of the European taxonomy and that the State ensures the divestment of holdings in companies or businesses that do not comply with the principles of the European taxonomy (Art. 36-1).

c)     An Act in dialogue with international Law

The legal commitments to European Union on climate issues is also a commitment to international law, regarding the international competences of European Union. The European obligations of the Portuguese State on climate issues goes in parallel with the international ones. The climate framework states, for example, that:

a)     The Portuguese State must honour the commitments regarding international climate cooperation, at a European and international level (Art. 63-1 and 15; and, for instance, Art. 2 of the United Nations Framework Convention on Climate Change, of 1992 [https://unfccc.int/process-and-meetings/the-convention/what-is-the-united-nations-framework-convention-on-climate-change] and The Sendai Framework for Disaster Risk Reduction 2015-2030, of 2015 [https://www.undrr.org/publication/sendai-framework-disaster-risk-reduction-2015-2030]).

b)     “Within the scope of international scientific cooperation, namely as a member of the European Union and the Atlantic axis”, Portugal must ensure “the existence of a research centre, based in Portugal, which promotes scientific research and technological development on climate change” (Art. 64-2).

c)     The Portuguese State “participates in research and development actions at a European and international level” regarding cooperation projects in the field of climate change (Art. 66).

According to the framework climate Act, the Government must adopt “a global and integrated vision of climate objectives, complying with the limits of sustainable use of the planet’s natural resources and the development paths of each country, actively defending, in foreign policy and in climate diplomacy”, namely, the recognition by the United Nations of the principle of a stable climate as a Common Heritage of Humanity (article 15-1 (f)) – which has been specifically discussed and praised in the legislative process (“Portuguese Climate Law includes the status of Climate as a Common Heritage of Humanity”, 2021 - https://cije.up.pt/en/news/portuguese-climate-law-includes-the-status-of-climate-as-a-common-heritage-of-humanity/) -, the development of environmental international criminal protection, and the definition of the concept of climate refugee, its status and its recognition by the Portuguese State article 15-1 (c) and (d)).

d)    The valuing of scientific knowledge

The last aspect that stands out is the fact that the framework climate law points out scientific knowledge as a premise to make better decisions. It states that public climate policies are subordinated to the principle of “valuing knowledge and science, on which decision-making is based” (Art. 4-(f)), and to precautionary approach in the case of scientific uncertainty (Art. 4-(j)). Regarding national mitigation targets, it is provided that they shall be revised taking into account new scientific and technological knowledge (Art. 19-5). It is also foreseen the creation of a scientific research centre to promote scientific research and technological development on climate change (Art. 66-2).

The link between scientific knowledge and political-normative decisions is noteworthy as it can be understood as a materialization of “the right to enjoy the benefits of scientific progress and its applications” (art. 15-1(b)) of the International Covenant on Economic, Social and Cultural Rights, 1966 - https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx).

Secondary sources/ doctrinal works (if any)

­       Anabela Carva et al., “Climate change research and policy in Portugal”, WIREs Climate Changes, 2014, Vol. 5, Issue 2, pp. 199-217. doi: 10.1002/wcc.258.

­       Manuel Gouveia Pereira, “The Environment and Climate Change Law Review: Portugal”, in The Environment and Climate Change Law Review, Edition 6, Editors Theodore Garrett Coington & Burling, 02 February 2022 (https://thelawreviews.co.uk/title/the-environment-and-climate-change-law-review/portugal).

­       Tiago de Melo Cartaxo, “Lei de bases do clima: a portuguese legal response to the biggest global challenge of our time”, Diritti Comparati, comparare i diritti fondamentali in Europa, posted on Marzo 10, 2022 (https://www.diritticomparati.it/lei-de-bases-do-clima-a-portuguese-legal-response-to-the-biggest-global-challenge-of-our-time/).

­       Commission recommendations for Portugal’s Cap strategic plan Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Recommendations to the Member States as regards their strategic plan for the Common Agricultural Policy, SWD(2020) 398 final, 18.12.2020 (https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52020SC0398&rid=2).

­       Documents related to legislative procedure - https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=44220.

­       Portuguese constitution: https://dre.pt/dre/geral/en/relevant-legislation/part-i.

*Act citation /year and number

Law 98/2021, of December 31.

Enacted by

Parliament (Assembleia da República)

Official link to the text of the act

https://dre.pt/dre/detalhe/lei/98-2021-176907481