Abstract
Internationally, the European Union has become known as a forerunner in the adoption and implementation of ambitious climate policies, pioneering new regulatory instruments and voluntarily committing itself to ambitious targets both with regard to greenhouse gas mitigation and energy sustainability. Underlying Europe’s perceived leadership in the struggle against climate change is a proliferation of internal laws and regulations, including the largest environmental permit trading scheme in history. It would be erroneous, however, to assume that the emergence of this comprehensive policy landscape has followed an easy or straightforward path; more aptly, the development of climate and energy policy in the European Union has often been preceded by arduous negotiations and significant controversy. Going forward, what are the prospects for continued climate leadership in the European Union, and what role will the legal and institutional framework play?
Michael Mehling is President of the Ecologic Institute, Washington DC, and Adjunct Professor at Georgetown University; Kati Kulovesi is Adjunct Professor at the Department of Law, University of Eastern Finland; Javier de Cendra is Senior Research Associate at the University College London (UCL) Energy Institute and the Faculty of Laws, and visiting professor at University of Leuven (KU Leuven).
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Notes
- 1.
European Environment Agency (EEA), Annual European Union Greenhouse Gas Inventory 1990–2010 and Inventory Report 2012 (Copenhagen: EEA, 2012).
- 2.
Such leadership can manifest itself in many ways, and the European Union has been designated a structural leader by virtue of its membership, combined population and economic power, but also as a directional and instrumental leader for setting an example through domestic policies and building dynamic coalitions within the international community, see Joyeeta Gupta and Lasse Ringius, “The EU’s Climate Leadership: Reconciling Ambition and Reality”, 2 International Environmental Agreements: Politics, Law and Economics (2001), 281–299.
- 3.
Peter G. Harris, “Europe and the Politics and Foreign Policy of Global Climate Change”, in Peter G. Harris (ed.), Europe and Global Climate Change: Politics, Foreign Policy and Regional Cooperation (Cheltenham: Edward Elgar, 2007), at 31.
- 4.
These states were Belgium, France, Germany, Italy, Luxembourg and the Netherlands.
- 5.
European Commission, Report from the Commission to the Council on Civil Protection, Tourism and Energy, SEC (1996) 496 final of 3 April 1996, 2.
- 6.
Marc Pallemaerts et al., Climate Change and Sustainable Energy Policies in Europe and the United States (Brussels and Washington, DC: IEEP/NRDC, 2006), at 22.
- 7.
Council, Decision 93/389/EC of 24 June 1993 for a Monitoring Mechanism of Community CO2 and other Greenhouse Gas Emissions, OJ 1993 L167/31.
- 8.
Jørgen Henningsen, EU Energy and Climate Policy – Two Years On, EPC Issue Paper No. 55 (Brussels: EPC, 2008), at 9.
- 9.
Council, Decision 2002/358/EC of 25 April 2002 concerning the Approval, on Behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the Joint Fulfilment of Commitments Thereunder, OJ 2002 L130/1. Commitments range from a reduction of 28 set for Luxembourg or 21 for Germany and Denmark, to an increase of no more than 27 for Portugal and 25 for Greece.
- 10.
European Commission, EU Policies and Measures to reduce Greenhouse Gas Emissions – Towards a European Climate Change Programme (ECCP), COM (2000) 88 final, at 8.
- 11.
Eurostat, Measuring Progress towards a More Sustainable Europe: Sustainable Development Indicators for the European Union (Luxembourg: Office for Official Publications of the European Communities, 2005).
- 12.
European Commission, Winning the Battle Against Global Climate Change, COM (2005) 35 of 9 February 2005.
- 13.
European Commission, An Energy Policy for Europe, COM (2007) 1 of 10 January 2007.
- 14.
Sebastian Oberthür and Claire Roche Kelly, “EU Leadership in International Climate Policy: Achievements and Challenges”, 43 The International Spectator (2008), 35–50, at 41.
- 15.
Specifically, the document outlined a new set of mitigation targets to be achieved by 2020: a firm and independent commitment to reduce greenhouse gas emissions by 20% relative to 1990 levels, and a commitment to reduce emissions by up to 30% if an international climate protection regime sets comparable ambitious targets for other countries; a mandatory target of 20% for the share of renewable energy in the overall energy mix; and an objective to reduce primary energy consumption by 20% compared to projections for 2020 through improved efficiency.
- 16.
European Commission, An Energy Policy for Europe, supra, note 14, at 5.
- 17.
Joseph Curtin, The Copenhagen Conference: How Should the EU Respond? (Dublin: Institute of International and European Affairs, 2010), at 1; see also below, Sect. 20.3.
- 18.
See, generally, Javier de Cendra de Larragán, “EU Climate and Energy Law: Challenges for Member States”, in Marjan Peeters, Mark Stallworthy and Javier de Cendra de Larragán (eds), Climate Law in EU Member States: Towards National Legislation for Climate Protection (Cheltenham: Edward Elgar, forthcoming 2012); Javier de Cendra de Larragán, “Achieving Deep Integration Between the Climate-Change and Energy Agendas: Some Reflections on the EU Approach”, 3 Journal of Energy & Environmental Law (2012), 240; the Third Energy Package is composed by the following legal instruments: Parliament and Council Directive 2009/72/EC of 13 July 2009 concerning Common Rules for the Internal Market in Electricity and Repealing Directive 2003/54/EC, OJ 2009 L211/55; Directive 2009/73/EC of 13 July 2009 concerning Common Rules for the Internal Market in Natural Gas and Repealing Directive 2003/55/EC, OJ 2009 L211/94; Parliament and Council Regulation (EC) No 713/2009 of 13 July 2009 Establishing an Agency for the Cooperation of Energy Regulators, OJ 2009 L211/1; Parliament and Council Regulation (EC) No 714/2009 of 13 July 2009 on Conditions for Access to the Network for Cross-border Exchanges in Electricity and Repealing Regulation (EC) No 1228/2003, OJ 2009 L211/15; Parliament and Council Regulation (EC) No 715/2009 of 13 July 2009 on Conditions for Access to the Natural Gas Transmission Networks and Repealing Regulation (EC) No 1775/2005, OJ 2009 L211/36; for the roadmaps, see European Commission, Energy Roadmap 2050, COM(2011)885, and European Commission, A Roadmap for Moving to a Competitive Low Carbon Economy, COM(2011)112.
- 19.
European Council, “Conclusions of the Presidency, Annex I: Declaration on the Environment,” Rhodes 2–3 December 1988.
- 20.
According to Article 191(1) of the Treaty on the Functioning of the European Union, one of the objectives of the EU’s environmental policy is to contribute to: preserving, protecting and improving the quality of the environment; protecting human health, prudent and rational utilization of natural resources; and promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. Emphasis added.
- 21.
Maria Lee, “The Environmental Implications of the Lisbon Treaty,” 10 Environmental Law Review (2008), 131, at 133.
- 22.
Oberthür and Roche Kelly, “EU Leadership in International Climate Policy,” supra, note 15, at 35.
- 23.
The Constitutional Treaty would have replaced the EU founding treaties by a single text, given legal force to the Charter of Fundamental Rights, and strengthened majority voting. While a number of Member States ratified it, Dutch and French voters rejected it in a referendum in May 2005. The Treaty of Lisbon was subsequently created to replace the Constitutional Treaty.
- 24.
Andrew Jordan, David Huitema and Harro van Asselt, “Climate Change Policy in the European Union: An Introduction,” in Andrew Jordan et al. (eds), Climate Change Policy in the European Union: Confronting Dilemmas of Mitigation and Adaptation? (Cambridge, UK et al.: Cambridge University Press, 2010), 3, at 11.
- 25.
Oberthür and Roche Kelly, “EU Leadership in International Climate Policy,” supra, note 15, at 43.
- 26.
For a comprehensive overview of the EU’s role in the UNFCCC negotiations, see Kati Kulovesi, “Climate Change in the EU External Relations: Please Follow My Example (Or I Might Force You To),” in Elisa Morgera (ed.), The External Environmental Policy of the European Union: EU and International Law Perspectives (Cambridge University Press, forthcoming 2012).
- 27.
See for example, “Winners and losers in Copenhagen”, The Economist Blog, 21 December 2009, available at http://www.economist.com/blogs/charlemagne/2009/12/winners_and_losers_in_copenhag (last accessed on 20 June 2012).
- 28.
Thomas Kleine-Brockhoff, “Lessons of a Memorably Chaotic Global Gathering”, The Financial Times, 21 December 2009.
- 29.
For discussion, see Kati Kulovesi, “A New Chapter in the UN Climate Change Negotiations? First Steps under the Durban Platform for Enhanced Action,” 3 Climate Law (2012), 181 Lavanya Rajamani, Deconstructing Durban, IndianExpress.com, 15 December 2011, available at: http://www.indianexpress.com/news/deconstructing-durban/887892/ (last accessed on 21 June 2012).
- 30.
Jorgen Wettestad, “The Complicated Development of EU Climate Policy,” in Joyeeta Gupta and Michael Grubb (eds.), Climate Change and European Leadership: A Sustainable Role for Europe? (Kluwer Academic Publishers, 2000) 25, at 27.
- 31.
Denny Ellerman, Frank Convery and Christian de Perthius, Pricing Carbon: The European Union Emissions Trading Scheme (Cambridge: Cambridge University Press, 2010), at 16.
- 32.
For a comprehensive overview of the package, its negotiating history and international dimensions, see Kati Kulovesi, Elisa Morgera and Miquel Muñoz, “Environmental Integration and Multifaceted International Dimensions of EU Law: Unpacking the 2009 Climate and Energy Package,” 48 Common Market Law Review (2011), 829.
- 33.
Ibid.
- 34.
See similarly, Joanne Scott, “The Multi-Level Governance of Climate Change,” 5 Carbon and Climate Law Review (2011), 25, at 27–28.
- 35.
For discussion, see Kati Kulovesi, “‘Make Your Own Special Song, Even If Nobody Else Sings Along’: International Aviation Emissions and the EU Emissions Trading Scheme”, 2 Climate Law (2011), 535; and Kati Kulovesi, “Addressing Sectoral Emissions outside the UNFCCC: What Roles for Multilateralism, Minilateralism and Unilateralism?” 21 Review of European Community and International Environmental Law (forthcoming, 2012).
- 36.
See Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme of greenhouse gas emissions allowance trading within the Community, OJ L 8, at 3, 13 January 2009.
- 37.
See Kulovesi, “International Aviation Emissions in the EU Emissions Trading Scheme”, supra, note 36, for an overview of legal arguments in this regard. See also Lavanya Rajamani, European Union: Climate Action Hero? IndianExpress.com, 3 August 2011, available at: http://www.indianexpress.com/news/european-union-climate-action-hero/826290/1 (last accessed on 21 May 2012).
- 38.
Joanne Scott and Lavanya Rajamani, “EU Climate Change Unilateralism: International Aviation in the European Emissions Trading Scheme”, 11 European Journal of International Law (2012), 339.
- 39.
Case C-366/10. Reference for a preliminary ruling from High Court of Justice Queen’s Bench Division (Administrative Court) (United Kingdom) made on 22 July 2010 – The Air Transport Association of America, American Airlines, Inc., Continental Airlines, Inc., United Airlines, Inc. v. The Secretary of State for Energy and Climate Change, OJ C 260, at 9, 25 September 2010. For detailed legal analysis of the arguments and the October 2011 advisory opinion by Advocate General Juliane Kokott, see Kulovesi, “International Aviation Emissions in the EU Emissions Trading Scheme”, supra, note 36, at 544 et seq.
- 40.
Case C-366/10, supra, note 40.
- 41.
H.R. 2594, European Union Emissions Trading Prohibition Act of 2011.
- 42.
“US Congress to Oppose EU Law on Aircraft Emissions”, Carbon Market Europe, 3 February 2012.
- 43.
BBC News, “China ‘Bans’ Airlines from Joining EU Carbon Scheme”, 6 February 2012, available at: http://www.bbc.co.uk/news/business-16901106 (last accessed on 2 March 2012); “India Confirms Boycott of EU Aviation Emissions Rule”, Bridges Weekly, 29 March 2012, available at: http://ictsd.org/i/trade-and-sustainable-development-agenda/129985/ (last accessed on 30 April 2012).
- 44.
Directive 2008/101/EC, supra, note 37, Art. 16.3.
- 45.
Ibid., Arts. 16.5–16.12.
- 46.
This argument has also been made in Kulovesi, “Addressing Sectoral Emissions”, supra, note 36.
- 47.
Oberthür and Roche Kelly, “EU Leadership in International Climate Policy,” supra, note 15, at 43.
- 48.
Miranda Schreurs and Yves Tiberghien, “Multi-Level Reinforcement: Explaining European Union Leadership in Climate Change Mitigation”, 7 Global Environmental Politics (2007), 19–46, at 25.
- 49.
European Commission, Europeans’ Attitudes Towards Climate Change, Special Eurobarometer Report (Brussels: European Commission, 2008), at 6, 9.
- 50.
Henningsen, EU Energy and Climate Policy, supra, note 9, at 7.
- 51.
Andrew Jordan et al., “Governing the European Union: Policy Choices and Governance Dilemmas”, in Andrew Jordan et al. (eds), Climate Change Policy in the European Union: Confronting the Dilemmas of Mitigation and Adaptation? (Cambridge: Cambridge University Press, 2010), at 29.
- 52.
Nuno Lacasta, Suraje Dessai and Eva Powroslo, “Consensus Among Many Voices: Articulating the European Union’s Position on Climate Change”, 32 Golden Gate University Law Review (2002), 351.
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Mehling, M., Kulovesi, K., de Cendra, J. (2013). Climate Law and Policy in the European Union: Accidental Success or Deliberate Leadership?. In: Hollo, E., Kulovesi, K., Mehling, M. (eds) Climate Change and the Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 21. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5440-9_20
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