Nick Flynn
September 2013

EU law and climate change

environmental SCIENTIST | The EU - Red Tape or Green Governance? | August 2013

We need more Europe, not less” Angela Merkel proclaimed in 2012 to the annoyance of eurosceptics. She was speaking in the context of the global financial crisis, but a parallel climate crisis is unfolding that is likely to have a much greater impact than any austerity measure. The EU has a track record of innovation in the field of environmental law. We might ask then whether Angela Merkel’s prescription for more Europe holds good for the climate also?

Environmental problems have never been respecters of borders or political authority, and today the implications of this are profound. Population growth is accelerating. The concentration of greenhouse gases (GHGs) in the atmosphere has risen rapidly from 270 ppm at the start of the industrial age to just over 400 ppm today, a change that would normally have taken many millennia and a level not seen for 3 million years. At the same time, we are witnessing what many believe to be the sixth mass extinction.

Such changes have always occurred, but their scale and pace is now unprecedented. Natural variations in the climate have always produced winners and losers as societies in one location are undermined while those in another thrive. But this pattern has been disrupted environmental, economic and societal pressures have intensified and multiplied. A robust scientific consensus now gives fair warning that avoiding the most serious climate risks requires GHG emissions to peak in 2020 and fall rapidly thereafter. A ‘business-as-usual’ model of significantly rising emissions will simply guarantee that everyone in our highly interdependent and interconnected world loses.

Cross-border environmental issues
The scientific community has been clear about the risks, but there is a significant gap between the scale of the problem and the international community’s efforts to agree rules that might solve it. We should not be surprised. The strategic importance of cross-border environmental issues only began to be acknowledged properly in the 60s and 70s with the UN Conference on the Environment in Stockholm in 1972, followed by the Bruntland Report in 1987 and then the Rio Conference in 1992, which led to both the UN Framework Convention on Climate Change (UNFCCC) and the Convention on Biological Diversity (CBD) in the same year. The two Conventions are legally binding and undoubtedly important for creating an international framework for action in their areas, but their lack of specific targets or detailed requirements has limited their impact.

The same period did, however, witness momentum at the domestic level with the introduction of meaningful environmental laws and regulators in both the USA and in Europe. Since that time, the two blocs’ behaviour has diverged and other players have emerged with their own agendas. While the USA has typically refused to ratify the most important environmental treaties, the EU has embraced global environmental policy and broken new ground in the pooling of sovereignty. Over the same period, China, India and other countries’ economies have grown enormously but they have been cautious about limiting their increasing power and influence by submitting to binding global rules, particularly regarding commitments that might inhibit their economic development.

Fit for purpose?
Such differences in approach may be par for the course, but the urgency and scale of climate challenge begs the question of whether the current international legal machinery remains fit for purpose and, if not, how to fix it. As seen in the case of the Conventions discussed above, the typical international treaty commitment is often vague and aspirational. Even when states do take on specific commitments, international law lacks the enforcement machinery that is typically found in domestic systems, and this means that collective action can be very weak if the political will to act is lacking. Sanctions for non-compliance are generally based on the loss of privileges such as voting rights or future increases in commitments in emissions reductions, for example. Sanctions of this kind are apt to be ignored.These arrangements reflect the habits and norms of sovereign states dealing with each other, at least in principle, as equals subject to no higher authority. The Conference of the Parties (COP) to the UNFCCC is a case in point. It operates by consensus: in principle nothing is agreed until everything is agreed by all 195 parties. Although in the long run everyone has much to lose from exploiting this fact in order to obstruct agreement, in the short term many see tactical advantages in delay. The scientific consensus is therefore politely acknowledged, but in practice, ignored. Over their 20 years, the UNFCCC and its associated Kyoto Protocol have failed to reduce global emissions of GHGs – quite the reverse.

As the IPCC’s and other bodies’ warnings have increased, a consensus has emerged that a new approach is needed, but with little agreement on how or what it should look like. Trumpeted as a success by some, in Durban in 2011 the COP arguably simply tore up the carefully negotiated road map that it had been following for the previous four years. Delegates restarted the process with the aim, this time, of agreeing a new globally applicable treaty by 2015 which is only to come into force in 2020. We might note that this also happens to be the year in which the science community warns that emissions must peak to avoid the biggest climate risks. The gap between reality and the path we need to travel appears to be getting bigger and starker.

So what is to be done? Imaginative thinking about national sovereignty and international collaboration is required but seems to be lacking. The EU meanwhile has the most ambitious environmental law programme of any regional international body and, even though it faces serious economic and political challenges, its example of sovereign states submitting to the binding rules of a higher authority to deal with cross-border political and economic issues is a useful model for the international community if the political will and ambition existed to follow it.

The EU's record
The EU has promulgated more than 200 specific laws covering environmental issues. The majority of these laws have been in the form of directives, leaving the choice of implementation methods up to the member states to reflect the principle of subsidiarity, which encourages the lowest appropriate level of government to make important decisions. It is estimated that 80 per cent of UK environmental law has its origins in EU requirements and, although performance is by no means uniform, such requirements are largely properly implemented and enforced, in contrast to many international commitments.

These laws cover a wide range of environmental subjects, from use of landfill to habitat protection, the handling of waste, the quality of water and air, and the prevention and clean-up of contamination. They have a significant impact both within and outside the EU.

REACH
To take one example, the 2007 Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) was a ground-breaking response to the difficulty of ensuring the safety of the many chemicals on sale in the EU market. REACH’s innovation was to make participants in the chemical supply chain, rather than public authorities, responsible for evaluating and reporting the relevant associated risks. The US position under the Toxic Substances Control Act has been very different, with regulators hampered by Congress persistently refusing to contemplate reform. The EU model has, by contrast, set the agenda for chemical manufacturers and their customers on a global basis, as they have adapted products to comply with the requirements of the wealthiest consumer market in the world. This includes many US companies who have EU customers. In addition, China has introduced its own version of REACH. The original EU law is one of the most complex pieces of legislation in history and has changed the chemical sector globally. It shows what can be done when the political will exists.

The EU has also demonstrated innovation, impact and leadership in the field of climate legislation. It was the only major power other than Australia at the recent UN climate conference in Doha to commit to emissions reduction obligations under the second Kyoto Protocol commitment period which started in January 2013. There are questions over the effectiveness of EU climate policy instruments but, again, it offers a model for pooling sovereignty, sharing responsibility and influencing global action that the wider international community might note.

For example, the EU Emissions Trading Scheme (EU ETS) began operation in 2005 as a key part of achieving the bloc’s emission reduction obligations under the Kyoto Protocol, thus creating the first large-scale carbon ‘cap and trade’ market in the world. It covers more than 40 per cent of the EU’s total GHG emissions from 11,000 power stations and manufacturing plants in the 27 EU member states as well as Croatia, Iceland, Liechtenstein and Norway. Flights within and between most of these countries are now also covered.

The EU Effort Sharing Decision of 2009 complements the EU ETS by setting binding GHG emission reduction targets in sectors that are not subject to the main carbon market. These sectors include agriculture, buildings, housing waste and transport, which represent around 60 per cent of total GHG emissions in the EU. The Decision requires that by 2020, total EU GHG emissions from these sectors be cut by 10 per cent compared to 2005 levels. The Effort Sharing Decision and the EU ETS are the key policy instruments for achieving the EU’s overall emission reduction target of 20 per cent by 2020.

Compared to recent efforts by Barack Obama to introduce climate measures while bypassing a reluctant US Congress or China’s efforts to reduce its carbon intensity (the level of emissions relative to economic output) while opening two coal-fired power stations every week, this is a record of real leadership in this field.

Complex outcomes
The picture in terms of outcomes is, however, complex. The European Environment Agency records that in 2013 EU GHG emissions are around 18 per cent less than 1990 levels, which puts the EU on track to comply with its own climate commitments. Global emissions, however, have increased by approximately 45 per cent by reference to the same criteria, and the EU’s performance may have more to do with Angela Merkel’s commitment to austerity than the design of its climate laws. The carbon price in the EU ETS, the flagship policy instrument, has collapsed to little more than €4 per tonne. The EU Parliament recently frustrated the EU Commission’s effort to remove 900 million carbon allowances from the market and thus drive up the price to the much higher level that might incentivise the transition to a low-carbon economy.

Undoubtedly there are problems with the EU model. Its currency and banks are threatened while its citizens struggle with falling living standards. Its much-vaunted carbon market is moribund and its support for the Kyoto Protocol is almost splendid in its isolation. But its 50- year history proves that states will submit to binding and meaningful limitations to their sovereignty with enormous environmental and social consequences if the political will and vision are there.

More not less
Fifty years ago such will and vision emerged from the ruins of a continent devastated by a global war. Decisions of huge strategic importance were taken to replace conflict with peace and cooperation. They resulted in community of approximately 500 million people benefiting today from levels of freedom, prosperity and environmental protection that, despite recent problems, are among the highest in the world. Yet again, strategic decisions are urgently awaited, upon which the destinies of billions of people depend. Whether those decisions will be robust from the point of view of scientific rigour and in terms of legal justice and fairness is the critical question. As the international climate talks stall for lack of political will and vision, it may indeed be a time not for less Europe, but more.

 

Nick Flynn is the Chair of the Legal Response Initiative (LRI), a charity providing pro bono legal support to developing countries in the UN climate change negotiations. He is an environmental lawyer in London and a trustee of Advocates for International Development (AAID), a charity using the law to support the eradication of extreme poverty, as well as a member of the advisory council of Legal Action Worldwide (LAW), an organisation supporting the rights of refugees and other displaced persons. Nick speaks and writes regularly about law, climate change, right and other development issues.

The views expressed in this article are solely those of the author.

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