EU: high ambition in Climate Action is binding… or not ?
- "Climate Case" in UE (part 1)
By Anya Coutinho [ENGLISH VERSION]
According to the Sabin Center for Climate Change Law, there are more than 250 lawsuits against governments around the world confronting the states to their lack of efforts regarding climate change mitigation (excluding the cases in US). One of these cases is currently taking place in the European Union (EU), where citizens decided to gather to sue European Institutions in the European Court of Justice, because of the infringement of their rights. Let’s have a closer look at the case and try to understand the motives and the implications of such an action.
The allegations of the plaintiffs in this case are that the EU is not undertaking enough actions to reduce Greenhouse Gas Emissions (GHG), as expected regarding the EU goals for 2030 and its commitment to the Paris Agreement. The plaintiffs are citizens from e.g. Southern France, Portugal, Italian Alps and Romanian Carpathians, but also, more surprisingly, from Northern Kenya and even Fiji. It is worth noting that Fiji presided over the United Nations Framework Convention on Climate Change (UNFCCC COP23) in Bonn last year and is playing an active role, as a Nation, to push climate change mitigation and constructive intergovernmental dialogue forward (see Talanoa Dialogue).
These citizens, thus, are suing EU for failing to set adequate GHG emissions targets in three legislative acts adopted by European Parliament and the Council: Emissions Trading System (ETS Directive, or EU ETS), Effort Sharing Regulation (ESR) and Land Use Land Use Change & Forestry Regulation (LULUCF)). Furthermore, the plaintiffs argue that the low targets in EU also breach higher order laws that protect fundamental human rights and provide obligation of environmental protection, such as the Treaty on the Functioning of the European Union (TFEU), the EU Charter of Fundamental Rights (ChFR), the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.
According to the Climate Case, applicants suffered a range of damages in result of insufficient Climate Action in EU. For instance, the fires destroyed the livelihoods and forest properties of some of them; several of them experienced significant decline in agricultural productivity due to the severe droughts, and some of them suffered several consequences of climate change in the ocean by undergoing serious loss in their income or even by being displaced because of the climate change.
So, to which extent is the EU responsible for these damages and how is it related to its binding obligations? Answers on these questions can be found further in this article.
What did the EU commit to in the Paris Agreement ?
Before the COP21 in Paris in 2015, the European Union established the 2030 climate and energy framework , whose key targets are to reduce the GHG emissions by at least 40% in 2030 (compared to 1990 levels), and to furthermore increase the share of renewable energies and improve energy efficiency both by 27%. The instruments to achieve these targets include the three legal acts under the challenge in Climate Case.
1. The first of them is the EU Emissions Trading System (EU ETS), which is considered the world’s largest carbon market.
In this system, carbon dioxide emissions are tracked and traded like any other commodity. Its goal is to set a limit on the amount of GHG emissions that can be emitted by a range of economic sectors and companies. The companies and industries actually buy the permits to pollute. Each of these permits, so called EU allowances authorizes one tonne of CO2 to be emitted. The long-term goal of this regulation is to make the cap every year slightly stringer in order to reduce the emissions according to the EU Climate targets. ETS covers approximately 40% of the EU’s greenhouse gas emissions. You can watch an explanatory video about the EU Emissions Trading System (EU ETS) here.
According to the Climate Case of people against EU, large quantities of allowances were allocated for free in the beginning, which led to its excess in the market. Indeed, European Commission admits the fact that this surplus exists since 2009 (in amount of 2 billion allowances which increased by 1 million in 2013). Moreover, it recognizes that in result, the price on carbon fell and thus, induced a weaker incentive to reduce emissions. The EU Commission took measures and found a long-term solution by creating a Market Stability Reserve (which starts operating in January 2019), which must address the mentioned surplus. The applicants from Climate Case, outline that taken measure will lead to a very low reduction of the number of allowances in the market and thus, call for higher ambition for ETS.
The Climate Action Network Europe (CAN), an European NGO coalition on climate change and energy supports the plaintiffs and alleges that the current policy allows companies to delay or cancel their investments in clearer and more efficient production, and since these sectors largely contribute (to almost 50%) to the GHG emissions in Europe, with the current legislation they could continue polluting for next 10 years or longer.
Furthermore, considering the fact that ETS is highly dependent on renewable energy resources, a strong policy and reforms are needed for renewables. In this regard, the applicants have submitted the recent research saying that an increase of 35% (at least) in renewable energy is feasible if compared to the EU’s assumption of 27% (by 2030). This statement is coherent with the fact, that European Parliament endorsed a target of 35% of renewables in 2017, and EU adopted a regulation in June, 2018 for a new, binding, renewable energy target for the Union for 2030 of 32%, which includes its further revision and an upward.
2. The second legal act is Effort Sharing Regulation Directive (ESR), which specifically concerns European Union.
Its targets concern “emissions from most sectors not included in the EU Emissions Trading System (EU ETS), such as transport, buildings, agriculture and waste.” Unlike for ETS, which is regulated at EU level, ESR gives responsibility to its Member States, which must adopt policies and take measures (e.g. promoting public transport, a shift away from transport based on fossil fuels, more efficient heating and cooling systems) to limit GHG emissions from the sectors mentioned above. According to European Commission” national targets will collectively deliver a reduction of around 30% by 2030, compared with 2005 levels”.
However, the plaintiffs claim that the ESR target is too low. In this regards, CAN Europe for instance, suggest that in order to make ESR more effective, the ESR target should be raised from -30% to at least -47% for the non-ETS sectors, while increasing targets every five years. Moreover, it also emphasizes the need of a lower (more stringent) 2021 starting point for Member States considering their projected emissions and their 2020 target.
3. The third European legal act challenged by plaintiffs in Climate Case is Land Use Land Use Change and Forestry (LULUCF) Regulation.
This legal act concerns “the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework”. Due to the size and large content of this regulation, it’s worth giving LULUCF special attention. That’s why, the analysis of LULUCF and allegations of plaintiffs in Climate Case regarding its targets, will be given in the second part of this article.
Please, follow us on our page ULB InsideCOPs Project.
*All the information regarding the Climate Case was retrieved from the Case T-330/18 submitted to European Court of Justice.
Acknowledgements
I would like to express deep gratitude to Cloé Mathurin for help and assistance in writing this article, to Aurélie Vermeulen for help and assistance in translating it in French, and to Benjamin Van Bocxlaer for his assistance.
The allegations of the plaintiffs in this case are that the EU is not undertaking enough actions to reduce Greenhouse Gas Emissions (GHG), as expected regarding the EU goals for 2030 and its commitment to the Paris Agreement. The plaintiffs are citizens from e.g. Southern France, Portugal, Italian Alps and Romanian Carpathians, but also, more surprisingly, from Northern Kenya and even Fiji. It is worth noting that Fiji presided over the United Nations Framework Convention on Climate Change (UNFCCC COP23) in Bonn last year and is playing an active role, as a Nation, to push climate change mitigation and constructive intergovernmental dialogue forward (see Talanoa Dialogue).
These citizens, thus, are suing EU for failing to set adequate GHG emissions targets in three legislative acts adopted by European Parliament and the Council: Emissions Trading System (ETS Directive, or EU ETS), Effort Sharing Regulation (ESR) and Land Use Land Use Change & Forestry Regulation (LULUCF)). Furthermore, the plaintiffs argue that the low targets in EU also breach higher order laws that protect fundamental human rights and provide obligation of environmental protection, such as the Treaty on the Functioning of the European Union (TFEU), the EU Charter of Fundamental Rights (ChFR), the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.
According to the Climate Case, applicants suffered a range of damages in result of insufficient Climate Action in EU. For instance, the fires destroyed the livelihoods and forest properties of some of them; several of them experienced significant decline in agricultural productivity due to the severe droughts, and some of them suffered several consequences of climate change in the ocean by undergoing serious loss in their income or even by being displaced because of the climate change.
So, to which extent is the EU responsible for these damages and how is it related to its binding obligations? Answers on these questions can be found further in this article.
What did the EU commit to in the Paris Agreement ?
Before the COP21 in Paris in 2015, the European Union established the 2030 climate and energy framework , whose key targets are to reduce the GHG emissions by at least 40% in 2030 (compared to 1990 levels), and to furthermore increase the share of renewable energies and improve energy efficiency both by 27%. The instruments to achieve these targets include the three legal acts under the challenge in Climate Case.
1. The first of them is the EU Emissions Trading System (EU ETS), which is considered the world’s largest carbon market.
In this system, carbon dioxide emissions are tracked and traded like any other commodity. Its goal is to set a limit on the amount of GHG emissions that can be emitted by a range of economic sectors and companies. The companies and industries actually buy the permits to pollute. Each of these permits, so called EU allowances authorizes one tonne of CO2 to be emitted. The long-term goal of this regulation is to make the cap every year slightly stringer in order to reduce the emissions according to the EU Climate targets. ETS covers approximately 40% of the EU’s greenhouse gas emissions. You can watch an explanatory video about the EU Emissions Trading System (EU ETS) here.
According to the Climate Case of people against EU, large quantities of allowances were allocated for free in the beginning, which led to its excess in the market. Indeed, European Commission admits the fact that this surplus exists since 2009 (in amount of 2 billion allowances which increased by 1 million in 2013). Moreover, it recognizes that in result, the price on carbon fell and thus, induced a weaker incentive to reduce emissions. The EU Commission took measures and found a long-term solution by creating a Market Stability Reserve (which starts operating in January 2019), which must address the mentioned surplus. The applicants from Climate Case, outline that taken measure will lead to a very low reduction of the number of allowances in the market and thus, call for higher ambition for ETS.
The Climate Action Network Europe (CAN), an European NGO coalition on climate change and energy supports the plaintiffs and alleges that the current policy allows companies to delay or cancel their investments in clearer and more efficient production, and since these sectors largely contribute (to almost 50%) to the GHG emissions in Europe, with the current legislation they could continue polluting for next 10 years or longer.
Furthermore, considering the fact that ETS is highly dependent on renewable energy resources, a strong policy and reforms are needed for renewables. In this regard, the applicants have submitted the recent research saying that an increase of 35% (at least) in renewable energy is feasible if compared to the EU’s assumption of 27% (by 2030). This statement is coherent with the fact, that European Parliament endorsed a target of 35% of renewables in 2017, and EU adopted a regulation in June, 2018 for a new, binding, renewable energy target for the Union for 2030 of 32%, which includes its further revision and an upward.
2. The second legal act is Effort Sharing Regulation Directive (ESR), which specifically concerns European Union.
Its targets concern “emissions from most sectors not included in the EU Emissions Trading System (EU ETS), such as transport, buildings, agriculture and waste.” Unlike for ETS, which is regulated at EU level, ESR gives responsibility to its Member States, which must adopt policies and take measures (e.g. promoting public transport, a shift away from transport based on fossil fuels, more efficient heating and cooling systems) to limit GHG emissions from the sectors mentioned above. According to European Commission” national targets will collectively deliver a reduction of around 30% by 2030, compared with 2005 levels”.
However, the plaintiffs claim that the ESR target is too low. In this regards, CAN Europe for instance, suggest that in order to make ESR more effective, the ESR target should be raised from -30% to at least -47% for the non-ETS sectors, while increasing targets every five years. Moreover, it also emphasizes the need of a lower (more stringent) 2021 starting point for Member States considering their projected emissions and their 2020 target.
3. The third European legal act challenged by plaintiffs in Climate Case is Land Use Land Use Change and Forestry (LULUCF) Regulation.
This legal act concerns “the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework”. Due to the size and large content of this regulation, it’s worth giving LULUCF special attention. That’s why, the analysis of LULUCF and allegations of plaintiffs in Climate Case regarding its targets, will be given in the second part of this article.
Please, follow us on our page ULB InsideCOPs Project.
*All the information regarding the Climate Case was retrieved from the Case T-330/18 submitted to European Court of Justice.
Acknowledgements
I would like to express deep gratitude to Cloé Mathurin for help and assistance in writing this article, to Aurélie Vermeulen for help and assistance in translating it in French, and to Benjamin Van Bocxlaer for his assistance.
