Legal institutionalization of the interests of the Russian Federation in the field of greenhouse gas emissions reduction

Leonova Irina Igorevna Postgraduate student, Institute of Legislation and Comparative Law under the Government of the Russian Federation 117218, Russia, Moscow, B.cheremushkinskaya str., 34 irina.leonova812@mail.ru

Back in 1824, the scientist D. Fourier published an article in which he formulated the idea of the greenhouse effect created by the earth's atmosphere. Further scientific research in this area led scientists to understand the relationship between the concentration of carbon dioxide in the atmosphere and an increase in the global temperature of the Earth^[1]. In 1988 The Intergovernmental Panel on Climate Change (hereinafter referred to as the IPCC) was founded by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP), which was tasked with a comprehensive study and assessment of the state of climate change, its causes, potential consequences and possible response strategies (https://www.ipcc.ch ). In 1992, made by the IPCC The assessments formed the basis of the Framework Convention on Climate Change (hereinafter referred to as the UNFCCC, the Convention), which recognized that the global nature of the planet's climate change is caused by anthropogenic emissions (https://www.un.org/ru/documents/decl_conv/conventions/climate_framework_conv.shtml ).

The adoption of the UNFCCC was followed by the signing of the Kyoto Protocol to the UNFCCC in 1997 and the Paris Agreement in 2015, which at the international level formed the institutional structure of the climate regime.

The UNFCCC aimed to stabilize greenhouse gas concentrations in the atmosphere at a level that would not allow dangerous effects on climate systems, while ensuring sustainable economic development. Each party that has acceded to the Convention is obligated to develop and submit national greenhouse gas emission inventories, implement regional programs aimed at mitigating the effects of climate change, cooperate in the development and application of greenhouse gas emission control technologies, protect and improve the quality of greenhouse gas sinks such as forests, oceans and other ecosystems, cooperate in taking measures to adapt to climate change, conducting research on climate systems, exchanging scientific and other information, training and education of personnel.

The Kyoto Protocol to the UNFCCC added quantitative commitments to reduce greenhouse gas emissions for developed countries to general commitments (https://www.un.org/ru/documents/decl_conv/conventions/kyoto.shtml ).

 The Paris Agreement updated the purpose of the Convention by transferring it from a qualitative category to a measurable one – to keep the increase in global average temperature below 2°C above pre-industrial levels and to make efforts to limit the temperature increase to 1.5 °C. At the same time, obligations are established for all parties to the Convention, but only those that they will determine for themselves based on a common task, but taking into account individual characteristics (https://unfccc.int/sites/default/files/russian_paris_agreement.pdf ). 

In our country, the legal understanding of the institutions of climate protection and reduction of greenhouse gas emissions took about 30 years.

The Russian Federation has ratified the UNFCCC and the Kyoto Protocol to the UNFCCC and adopted the Paris Agreement (Federal Law No. 34-FZ of 04.11.1994 "On Ratification of the UN Framework Convention on Climate Change"; Federal Law No. 128-FZ of 04.11.2004 "On Ratification of the Kyoto Protocol to the United Nations Framework Convention on Climate Change"; Resolution The Government of the Russian Federation dated 21.09.2019 No. 1228 "On the adoption of the Paris Agreement"), i.e. formally joined the international legal regime for climate protection. However, the adoption of the Institute of climate protection and reduction of greenhouse gas emissions in Russian legislation was not consistent with the adoption of these legal acts.

In the context of the legal institutionalization of any sphere of public relations, an important stage is the recognition by the state of the goals and objectives of legal regulation of this sphere at the level of strategic planning documents that determine the vector of development of society in the long term.

In 2009, a significant event for the field of climate protection was the adoption of the Climate Doctrine of the Russian Federation. It was the Climate Doctrine at the state level that recognized the problem of global warming, identified the need to take into account climate change as one of the factors of national security and put forward an understanding of the problem of climate change among the priorities of the Russian Federation. It was important to consolidate at the level of the strategic document the thesis that it is human activity associated with greenhouse gas emissions that has a noticeable impact on the climate.

The Climate Doctrine has determined the strategic goal of climate policy to ensure the safe and sustainable development of our country, based on the economic, environmental and social aspects of development in a changing climate and the emergence of relevant threats.

Comparing the goals set for the parties of the UNFCCC and the goal stated by the first strategic document of our country in the field of climate protection and reduction of greenhouse gas emissions, it can be seen that the Doctrine has shifted the emphasis from the global goal of stabilizing the concentration of greenhouse gases in the atmosphere in favor of sustainable development of our country in the face of climate change (Decree of the President of the Russian Federation dated 17.12.2009 No. 861-rp "On the Climate Doctrine of the Russian Federation").

The problem of climate change, including the reduction of greenhouse gas emissions, is also considered in the National Security Strategy. In the editions of 2009 and 2015, the elimination of the environmental consequences of economic activity in conditions of increasing economic activity and global climate change was defined as a strategic goal of ensuring national security in the context of environmental security (Decree of the President of the Russian Federation No. 537 of 12.05.2009 "On the National Security Strategy of the Russian Federation until 2020"; Decree of the President of the Russian Federation of 31.12.2015 No. 683 "On the National Security Strategy of the Russian Federation"; Decree of the President of the Russian Federation dated 02.07.2021 No. 400 "On the National Security Strategy of the Russian Federation"). In the 2015 and 2021 editions, natural disasters, accidents and catastrophes, including those related to global climate change, are already recognized as the main threats to state and public security. In the edition of 2021, adaptation to climate change and mitigation of the consequences of such changes are indicated as the national interest of the Russian Federation for the first time, and one of the tasks of national and environmental security is the task of assessing the impact of the consequences of climate change on the condition of vital facilities. And only in the edition of 2021, for the first time, it was indicated the need to form a system of state regulation of greenhouse gas emissions and ensure the implementation of projects to reduce greenhouse gas emissions and increase their absorption.

The global environmental security challenges include the consequences of climate change and the Environmental Security Strategy (Decree of the President of the Russian Federation No. 176 dated 04/19/2017 "On the Environmental Security Strategy of the Russian Federation for the period up to 2025"), which also emphasizes the need to mitigate the negative effects of climate change on the components of the natural environment.

The Low Greenhouse Gas Emissions Strategy adopted in 2021 already contains a detailed analysis of the challenges and threats that climate change entails, scenarios for the development of the situation at various levels of government response to such challenges and a list of measures to regulate greenhouse gas emissions based on the need to ensure competitiveness and sustainable economic growth of the Russian Federation (Decree of the Government of the Russian Federation Of the Russian Federation dated 29.10.2021 No. 3052-r "On approval of the strategy of socio-economic development of the Russian Federation with low greenhouse gas emissions until 2050").

Thus, at the strategic level, our country has comprehended the principles and goals of the UNFCCC, the Kyoto Protocol and the Paris Agreement, but the tasks are formulated based on the interests and capabilities of the Russian Federation in the current historical period and with a clear delay from the international climate agenda. Analyzing the main goals and objectives related to climate protection set out in these documents, the main interests of the Russian Federation in this area include mitigation of the effects of climate change, which can negatively affect the living conditions of the population and economic activity, cause threats of a natural and man-made nature, and the need to build an economy that can develop under the condition of low the level of greenhouse gas emissions.

Normative consolidation of the conceptual apparatus is another direction of legal institutionalization. For a long time, national legal regulation in the field of climate protection and, including the reduction of greenhouse gas emissions, operated with terms borrowed from international legal acts, but not established by national legal acts. In part, this problem was solved by the Federal Law "On Limiting Greenhouse Gas Emissions" adopted in 2021, which defines such concepts as "greenhouse gases", "greenhouse gas emissions and removals", "climate project", "validation" and "verification" "carbon footprint" (Federal Law No. 296 of 02.07.2021-Federal Law "On Limiting Greenhouse Gas Emissions"). Concepts such as "greenhouse gas emissions quota" and "carbon neutrality" are established only in the context of an ongoing experiment to limit greenhouse gas emissions in certain subjects of the Russian Federation (Federal Law No. 34-FZ of 06.03.2022 "On conducting an experiment to limit greenhouse gas emissions in certain Subjects of the Russian Federation"). We know the concept of "climate" only from geographical science ^[2]. And such concepts as, for example, "climate change", "adverse effects of climate change" are not established at all within the framework of Russian legal regulation in the field of climate protection and reduction of greenhouse gas emissions, although they are used at the international level of the UNFCCC. In this regard, we can talk about the lack of elaboration of terminology in the field of climate protection and greenhouse gas emissions, which may negatively affect the practice of applying legal norms.

Studying the process of legal institutionalization of any sphere of public relations, it is necessary to determine the place of the emerging legal institution in the existing system of law. Neither the Federal Law "On Environmental Protection" nor the Federal Law "On the Protection of Atmospheric Air" contains norms concerning climate protection. Although at one stage the legal regulation of this sphere was supposed to be established by amending the Federal Law "On Environmental Protection" (the draft Federal Law "On Amendments to the Federal Law "On Environmental Protection" regarding the regulation of greenhouse gas emissions"), but the relevant bill was not adopted, and the legislator went along the way of developing independently a regulatory legal act and an array of by-laws, which formed essentially an independent legal institution of climate protection standards. At the same time, the lists of pollutants emitted into the atmospheric air, for which state regulation is carried out, and the lists of greenhouse gases partially overlap. The authority to verify the reports of regulated organizations on greenhouse gas emissions is assigned to the Federal Service for Supervision of Environmental Management, i.e. the Environmental Protection Agency, which allows to some extent to link the sphere of climate protection with the sphere of environmental protection.

The need to fulfill Russia's commitments to reduce greenhouse gas emissions and the goal of low-carbon economic development presuppose systemic restructuring of the energy, transport, agriculture, forestry management, i.e. the emerging legal institution of climate protection and greenhouse gas emissions reduction contains many intersystem relationships with other branches of law.

The main direction of legal institutionalization is the systematization of the formed social mechanisms, their normative consolidation and the development of an array of new normative legal acts necessary for the formation of an independent legal institution. In the field of climate protection and, including the reduction of greenhouse gas emissions, this process occurred after the ratification of the Paris Agreement by our country. Both public-legal and private-legal methods of influencing the participants of legal relations were used.

By public-legal means of influence in the field of climate protection and, including the reduction of greenhouse gas emissions, we will understand the ways and methods by which the public authorities intend to ensure the interests of the state and society, which, as previously defined, consist in mitigating the possible negative consequences of climate change and ensuring the possibility of sustainable and balanced development of the Russian economy.

Private-law methods of influence will determine the methods allowed by the state to reduce greenhouse gas emissions within the framework of the subjective rights of individuals and legal entities.

The main public-legal mechanism established by the Federal Law "On Limiting Greenhouse Gas Emissions" is the organization of state accounting of greenhouse gases. It is obvious that for high-quality management of any area of relations, objective information about the object of management is required. The task of obtaining up-to-date and complete information on the amount and structure of greenhouse gas emissions has been attempted to be solved virtually since the signing of the UNFCCC. However, for a long time it has not been fully resolved.

State accounting as a management method is widely used in various fields, including environmental law. Thus, objects of negative impact on the environment are subject to state registration, among the information about which, among other things, information about the sources, structure and mass of emissions of pollutants into the atmospheric air is contained. Such objects to be managed as water bodies, forests, wildlife, etc. are also taken into account.

Another public-legal way of influencing, designed to contribute to climate protection and, including the reduction of greenhouse gas emissions, is to set targets for such emissions for the country's economy as a whole and for its individual industries. The target indicator for reducing greenhouse gas emissions for the economy of the Russian Federation is established by the Government of the Russian Federation on the basis of relevant decrees of the President of the Russian Federation and in accordance with strategic planning documents. A similar mechanism - setting targets for the volume or mass of emissions of pollutants - is being implemented for emissions into the atmospheric air on the territory of the subject of the Russian Federation (Federal Law No. 96-FZ of 04.05.1999 "On the Protection of Atmospheric Air").

The third and least developed in the Federal Law "On Limiting Greenhouse Gas Emissions" public-legal way of influencing participants in legal relations in the field of reducing greenhouse gas emissions are the measures of state support declared by this law to reduce greenhouse gas emissions and increase the absorption of greenhouse gases. However, the law only defines that such support for activities is carried out in accordance with the legislation of the Russian Federation, and the Government of the Russian Federation has the right to determine the grounds for providing state support measures to the executors of climate projects, as well as the conditions that the implemented climate projects must meet.

The main private law method of influencing the participants of relations in the field of greenhouse gas emissions, which is introduced by the Federal Law "On Limiting Greenhouse Gas Emissions", is based on the right of legal entities and individual entrepreneurs to implement climate projects.

Under the climate project, this regulatory legal act proposes to understand a set of measures to reduce (prevent) greenhouse gas emissions or increase the absorption of greenhouse gases. The specific characteristics of climate projects have not yet been determined, and therefore this definition raises more questions than answers.

It should be noted that reporting on greenhouse gas emissions in our country was collected and submitted as part of Russia's fulfillment of international obligations in accordance with the UNFCCC. Projects to reduce greenhouse gas emissions in our country were also conducted on the basis of the mechanisms defined by the Kyoto Protocol to the UNFCCC. However, these processes were regulated by legal acts at the level of resolutions of the Government of the Russian Federation. These documents were of a practical nature, and were not adopted based on an understanding of the task of state regulation of this sphere of public relations. And only almost 30 years after the ratification of the UNFCCC, a federal law was adopted that aims to create legal conditions for the sustainable and balanced development of the economy of the Russian Federation while reducing greenhouse gas emissions and which can become a key legal means of national carbon regulation ^[3].

There are several types of climate projects - measures to reduce the carbon footprint (Federal Law No. 296-FZ proposes to understand the total amount of greenhouse gas emissions and greenhouse gas uptake generated during the production of products or during the provision of services, which includes direct greenhouse gas emissions (formed as a result of economic activities). and other activities), indirect greenhouse gas emissions (related to the consumption of electric, thermal energy, other resources used to support economic and other activities and received from external facilities), absorption of greenhouse gases as a result of economic and other activities, taking into account the carbon units in respect of which the offset is made) concrete production, projects to improve the energy efficiency of buildings and infrastructure facilities, forest-climatic projects. It is obvious that the structure of the subjects involved in various types of climate projects, the list of implemented measures, quantitative and qualitative results of climate projects will be fundamentally different. Thus, the legal norms governing the implementation of climate projects should take into account all the features as much as possible.

In addition, taking into account the special attention that our country attaches to the role of forests in reducing greenhouse gas emissions (Decree of the President of the Russian Federation dated 04.11.2020 No. 666 "On reducing greenhouse gas emissions" formulated the goal of the Russian Federation to fulfill its obligations under the Paris Agreement - to ensure by 2030 a reduction in greenhouse gas emissions of up to 70 percent relative to the 1990 level taking into account the maximum possible absorption capacity of forests and other ecosystems and subject to sustainable and balanced socio-economic development of the Russian Federation), initiatives are proposed to amend the Forest Code of the Russian Federation and the Federal Law "On Limiting Greenhouse Gas Emissions", which will improve the effectiveness of climate projects in the field of forest relations (Draft Federal Law "On Amendments to the Forest Code of the Russian Federation and Article 9 of the Federal Law "On Limiting Greenhouse Gas Emissions").

The results of climate projects should be so-called carbon units, which are to be credited to the account of the contractor of this climate project in the register of carbon units. The introduction of the institute of carbon units is another step towards synchronizing domestic regulation in the field of greenhouse gas emissions with international legal norms. In addition, the use of the carbon unit trading mechanism makes it possible to increase the country's technological development potential ^[8]. However, the Russian carbon unit must be recognized by the international community, otherwise their exclusively internal circulation will not create an effective decarbonization mechanism ^[7].

As part of the development of the process of legal regulation of the sphere of climate protection, it is interesting to conduct an experiment to limit greenhouse gas emissions, when such a mechanism as emission quotas, which has a significant burden on business, is first worked out on the scale of individual subjects of the Russian Federation, and only if it is recognized as successful, it will be applied throughout the country (Federal Law of 06.03.2022 No. 34-FZ "On conducting an experiment to Limit Greenhouse Gas Emissions in Certain Subjects of the Russian Federation").

An important element of legal institutionalization is the mechanism for protecting the interests of the State in the relevant field of public relations. To date, there is no such mechanism in the field of climate protection in our country. However, a draft federal law "On Amendments to the Code of Administrative Offences of the Russian Federation" has been developed, which assumes administrative responsibility for non-compliance with the requirements for the submission of information on greenhouse gas emissions by regulated organizations.

Thus, we can say that since our country's accession to the Paris Agreement, there has been a process of active formation of legal norms in the field of climate protection and reduction of greenhouse gas emissions, both at the level of federal laws and subordinate regulatory legal acts, as well as through the adjustment of legal norms of related legislation. Ie, public relations are consolidated through legal norms, public-legal and private-legal ways of influencing the participants of legal relations developing in the field of climate protection and reduction of greenhouse gas emissions in Russia are being formed.

The revealed problems of the legal institutionalization of climate protection and, including the reduction of greenhouse gas emissions, include the following:

- rather late consolidation of the goals and objectives of climate protection at the level of strategic documents, as a result of which the development of legal regulation is delayed compared to international processes;

- the conceptual framework is not sufficiently complete and clear, which creates gaps in legal regulation;

- the ongoing and currently ongoing process of regulatory consolidation of public and private legal ways of regulating public relations in the field of climate protection and, including the reduction of greenhouse gas emissions.