In March 2020, the European Commission published its proposal for a European Climate Law, the cornerstone of its European Green Deal agenda. The Climate Law proposal, if passed in its current form, will create on the EU as a whole a legally binding target of being climate neutral, or net-zero, by 2050.

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What Is the EU Climate Law proposal?

The proposal, as part of the European Green Deal, has been hailed by the EU itself as Europe’s man on the moon moment. However, climate activist Greta Thunberg has labeled the proposal as a ‘surrender’ and as ‘empty words’ because reaching net-zero by 2050 is viewed by leading climate scientists as being too little, too late.

The current climate and energy goals of the EU are set out in a non-binding framework dated 2014: the EU aims to cut at least 40% of its greenhouse gas emissions from 1990 levels, to have at least 32% renewable energy in its overall energy mix and to have a 32.5% improvement in energy efficiency by 2030.

The climate-neutrality target laid out in the new law was initially endorsed by the European Parliament in 2019 after new climate models had made it clear that the then current climate trajectory would only lead to around a 60% reduction by 2050 compared to 1990 levels.

Climate-Neutrality Objective vs Trajectory 

The overall objective of the law is set out in article 2(1), which states that “Union-wide emissions and removals of greenhouse gases regulated in Union law shall be balanced at the latest by 2050, thus reducing emissions to net-zero by that date.” Article 2(2) imposes obligations on the Union and its member states collectively and individually to take the necessary measures to facilitate this. Union-wide in this context means that the objective is for the EU as a whole to reach net-zero. Therefore some member states will have to go beyond net-zero and achieve negative emissions, while other member states will need more time to adjust their economies. 

Article 3 empowers the Commission, starting from 2030, to set a trajectory detailing how the climate-neutrality objective is to be reached, taking into account, among other things, cost-effectiveness and competitiveness, the best available technology, fairness and solidarity, energy efficiency and energy security, in addition to the best and most recent research in the field, with the Intergovernmental Panel on Climate Change (IPCC) being highlighted in the draft text. The trajectory will be set out and updated through delegated acts, but whether or not these will be legally binding or directly enforceable is clear neither from the Commission’s explanatory memorandum nor the draft law.

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Assessment of Progress and Measures – Articles 5 and 6

By 30 September 2023 and every five years thereafter the Commission shall assess the collective progress of the member states and the Union itself (article 5), and the adequacy of individual measures adopted by the member states (article 6). The conclusions of the Commission shall be presented to the European Parliament and the European Council.

The Commission is allowed to issue recommendations to those member states whose progress is inconsistent with the climate-neutrality target, however the member states are only required to take due account of the recommendation and, if it decides not to address the issues in the recommendation, explain its reasoning in a public report.

International Context — Paris and Aarhus

The EU Climate Law proposal includes direct overlaps, references and allusions to international environmental treaties, in particular, the Paris Agreement and the Aarhus Convention, the latter of which affords everyone the right to receive environmental information that is held by public authorities.

The climate-neutrality objective itself was supported by the European Council with the explicit purpose of achieving the objectives of the Paris Agreement. The temperature goal of the Paris Agreement may be interpreted as the ultimate goal for which the EU Climate Law and the European Green Deal are striving. In the preamble, the long-term climate-neutrality goal is described as crucial for achieving the economic and societal transformation the Paris Agreement’s 1.5/2°C goal requires. 

Article 4 of the draft law contains a direct reference to article 7 of the Paris Agreement and an obligation to make continuous progress towards improving adaptation strategies and reducing climate change vulnerability. Also reflecting the link between the EU Climate Law and the Paris Agreement, the reporting mechanisms under articles 5 and 6 of the law, together with the reporting procedures in Regulation 2018/1999, are deliberately synchronised with the global stocktake of the Paris Agreement, starting in 2023.

Criticisms of the EU Climate Law

• Lack of Sufficient Binding Targets

The only substantive binding target or obligation contained in the draft regulation is the climate-neutrality objective. There are no individual targets imposed on the member states that need an extra push, nor does the commission appear to be empowered to take the necessary measures to enforce the collective objective or its trajectory in an efficient way.

The main shortcoming under this heading concerns the obligation under article 2(3) to explore options for a new 2030 target of 50 to 55% emission reductions compared to 1990. The commission is scheduled to present an impact assessment of the feasibility of doing this in a responsible way this summer. The fact that the legal text includes the obligation to consider the impact assessment and to revise the plan later makes it all seem quite rushed. In order to give the new law maximum impact the ambitiously revised 2030 targets should have been included in the draft law and should have been made legally binding.

If the commission wanted its level of ambition to be in line with the marketing of the draft law, the proposal could have included an ambitious and legally binding 2030 target, concrete sectoral transformation and reduction targets, and concrete and ambitious targets on individual member states. Some of these ideas have already been endorsed by a group of climate and environmental ministers from 12 member states in a letter to the commission.

• Effectiveness of Non-Compliance Procedures

Two main enforcement mechanisms are available to the commission under the draft law. First, there is public naming and shaming, primarily through the public reports and recommendations mandated by articles 5 and 6. The fact that the reports and recommendations of the Commission regarding the consistency and progress of the measures and plans of the individual member states towards achieving the neutrality objective are to be made public could, and ideally will push the member states into compliance. However, certain member states have a track record of not incorporating and enforcing EU environmental law and appear to be unperturbed by pressure from the commission or national green movements. Because of this, there is a question mark over the effectiveness of the naming and shaming procedure, particularly for member states with an existing habit of non-compliance with environmental obligations.

The most powerful tool at the commission’s disposal, and its last resort, is to launch infringement proceedings against a member state before the Court of Justice of the EU. This procedure is legalistic and consists of a number of time-consuming procedural steps that, combined with the workloads of the commission and of the court, result in the average infringement case lasting 38 months from the date the first official reasoned opinion is sent to a member state to the date the court makes a ruling.

Taking into account the limited time from 2030, when the obligations will come into force, to 2050 and the massive societal, economic, industrial, political and economic changes all member states need to implement to be anywhere near reaching EU-wide net-zero within the deadline, 38 months for each infringement is excessive and ineffective. This is especially so when the follow-up proceedings to impose financial penalties are taken into account. Furthermore, the court may only impose financial penalties and has no other enforcement powers to ensure compliance. This underlines the limits of the EU’s constitutional framework to ensure enforcement of its laws rather than a flaw in the draft law, but it is nonetheless a clear danger to its potential success.

• No Independent Scientific Scrutiny — Increased Risk of Politicisation

The third shortcoming of the draft law is the lack of independent scientific oversight of the climate-neutrality trajectory formulated in article 3. Article 3(3)(j) obliges the commission to consider “the best available and most recent scientific evidence, including the latest reports of the IPCC.” However, ‘considering’ is not the same as ‘following’ and this formulation is merely an obligation to take a look at the latest science. The trajectory is ultimately a political decision and therefore subject to the respective veto powers of the European Parliament and the council.

This is a serious shortcoming because the setting of the trajectory will be subject to the veto of the council, where climate change-denying member states are represented, and subject to the politics of the commission. This renders the law a highly politicised instrument and most likely an ineffective one.   

Practical alternatives could include creating an independent scientific body that proposes the trajectory based on its expert opinion and then leaves it to the commission and the council to publicly justify any alterations. The commission could follow the advisory structures that already exist in the EU, for instance, the scientific committees established under Commission Decision 2008/721/EC or the High-Level Group of Scientific Advisors. This could depoliticise the trajectory as a concept, increase transparency and ensure accountability for unambitious decisions and choices. Leading researchers in the field, such as Nils Meyer-Ohlendorf of the Ecologic Institute, have called the lack of an independent scientific body a missed opportunity as “Independent scientific bodies support consistency between climate long-term goals and short-term action. They enhance the role of science, and help build the necessary political will to decarbonise economies.”

The draft is now in the hands of the EU’s legislature, where the European Parliament (which is directly elected) and the Council of the European Union (which represents the government of the member states) will discuss, amend and agree on the final text of the regulation. The European Parliament has already signalled that it wants to significantly toughen the law while the Council is more careful.

The European Climate Law is a great step in the right direction but it falls short of the level of ambition the EU is capable of achieving. In its current form, the law is more like Apollo 5 than the moonwalk: in orbit but far from the moon. 

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On 20 December 2019, the Supreme Court of the Netherlands ruled, in the so-called ‘Urgenda Case’, that the Dutch government is obliged under international human rights treaties to significantly reduce its carbon emissions. The case of Urgenda v. the Netherlands is part of an increasing civil society trend of launching climate change-related litigation against governments to force them to increase their efforts to combat the climate crisis. 

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The judgement, applauded by the UN’s Human Rights Commission as a ‘landmark decision,’ requires the Dutch government to cut its greenhouse gas emissions by 25% by the end of 2020, compared with 1990 levels. 

The country’s highest court upheld an earlier decision by the Court of Appeal, which said that insufficient climate action contributed to the ‘risk of irreversible changes to ecosystems worldwide and liveability of our planet’ and a ‘serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life… that the State has a duty to protect against’. The court also said that governments need to consider the latest climate science when drawing up policies. 

Climate Change Course Cases: What is Urgenda?

In 2013, the case was brought by the Netherlands-based nonprofit Urgenda Foundation, which charged that the country’s climate policies were not strong enough to protect its citizens. 

The Hague District Court determined the Dutch government must reduce greenhouse gas emissions by at least 25% (compared to 1990) by 2020 to fulfil its duty of care to protect Dutch citizens against the climate crisis. 

The State appealed and the Court of Appeal reaffirmed the District Court’s order, basing its judgement on the articles of the European Convention on Human Rights dealing with the right to life and to private and family life. The decision was appealed once more by the State. 

In December 2019, the Supreme Court of the Netherlands accepted that Urgenda could invoke the European Convention on Human Rights and ruled that the Dutch Government has an obligation to actively prevent climate change in order to protect the fundamental human rights of its citizens. The Court also ordered the government to reduce its greenhouse gas emissions by at least 25% compared to 1990, by the end of 2020.

The Defence (the State) argued that its contributions to global CO2 emissions are ‘very small’ and that any mitigation measure will have ‘only a minor effect’, to which the court asserted that ‘partial causation justifies partial responsibility’ and added that ‘no single reduction is negligible, since every reduction has a positive effect in diminishing dangerous climate change’. The State went further and suggested that other governments are inactive in tackling the climate crisis, to which the court responded, “The fact that other states fail to meet their responsibility is no ground for the State not to perform its obligations” as ‘otherwise, a State can simply avoid its responsibility by pointing to other nations’. 

In its judgement, the Court recognised that the State has an obligation to protect the human rights of its citizens and that these rights are threatened by the climate crisis; the state is therefore obligated to take preventive and precautionary measures, of which reducing greenhouse gas emissions is an essential part. The Court recognised that the climate crisis may threaten peoples’ rights through sea level rise, heat stress, deteriorated air quality, increasing spread of infectious disease, excessive rainfall and disruption of food production and drinking water supply. 

Michelle Bachelet, UN High Commissioner for Human Rights, welcomed the judgement, saying, “Low-lying countries like the Netherlands are in the front line of climate change, and the potentially devastating effects of an unchecked rise in sea levels in particular should spur us on to demand courageous and decisive actions by Governments everywhere in responding to these threats.

“I cannot underline too much the importance of today’s decision, and the even greater importance of it being swiftly replicated in other countries.”

The Dutch case is likely to be the first of many around the world where courts recognise that governments’ inaction on tackling global warming may lead to the violation of national, regional and international human rights laws. The case is seen as a landmark in climate litigation, and has inspired similar suits across the world. 

Climate Change Litigation Around the World

The Inter-American Court of Human Rights recognised the right to a healthy environment as a human right in 2017.

All over the world, from Norway and Belgium to Pakistan and Brazil, people are taking their governments to court either for their lack of action or for their actions that have significantly contributed to the climate crisis. 

Arguments and plaintiffs vary, with some lawsuits being based on constitutional provisions while others on international law. Last year, Greta Thunberg and fifteen other children filed a case with the UN Committee on the Rights of the Child against the governments of Argentina, Brazil, France, Germany and Turkey for violating ‘children’s rights under international law by making insufficient cuts to greenhouse gas emissions and failing to use available tools to protect children from carbon pollution by the world’s major emitters’. 

The relative success of these lawsuits varies, as courts are often reluctant to accept cases related to the climate crisis. The Urgenda case is one of the most significant cases of this kind for many reasons, and is one of the first where a court has ordered a state to make immediate emissions reductions.

While the ruling is only binding for the Dutch government, this case could create precedence and inspire people around the world to turn to courts and force other governments to acknowledge the link between human rights and the climate crisis, through climate change litigation. It will likely change the focus of environmental litigation around the world.

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In December 2019, the European Commission presented the ‘European Green Deal’- the EU’s legislative roadmap to carbon neutrality by 2050. With emerging markets continuously expanding fossil fuel capacity and increasing greenhouse gas emissions, one would not be remiss to wonder what the point of this is, especially since the EU is responsible for just under 10% of global emissions. Can its call to using Green Deals as a means of climate action have an impact?

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The main aim of the EU’s Green Deal is to turn ‘an urgent challenge into a unique opportunity’ through adopting a series of legal and policy instruments transforming the European economy and society.

Meanwhile, In early 2019, American lawmakers Alexandria Ocasio-Cortez and Ed Markey released the ‘Green New Deal’ proposal in the US Congress with the same goal.

Both proposals are part of an international trend of pushing radically transformative policies aimed at tackling climate change while addressing other economic and social issues. 

What Is a Green New Deal?

It is a package of legal, economic and policy measures that aims to address climate change and social inequality at the same time, while presenting a new way of thinking about economic growth. According to Ursula von der Leyen, president of the European Commission, “ The old growth is out-of-date and out-of-touch with our planet.” 

The climate crisis reinforces inequalities and its adverse effects will primarily affect people of colour, the working class and women, and will ultimately widen the gap between the rich and poor. 

The fundamental premise that Green Deals are built upon is that one cannot adequately address climate change or inequality alone but rather, they must be tackled together. Green Deals will, ideally, lead to the creation of sustainable jobs that afford a decent standard of living, less economic inequality, a clean environment, lower energy costs and improved infrastructure that will benefit everyone, not just the rich.

While the EU Commission’s proposal is focused on utilising existing market mechanisms to enable the green transformation, the American Green New Deal essentially calls for an overhaul of existing social and economic systems. The American proposal also tackles areas like education and a jobs guarantee, which would likely be outside the EU’s jurisdiction as it is not a sovereign state.

European Green Deal

The EU’s deal contains 50 policy measures, including a carbon border tax for non- EU companies importing energy-intensive goods and a €100 billion ‘just transition fund’ to help member states transition towards a green economy. Under the deal, member states may only enter into trade agreements with states that abide by their Paris Agreement goals. 

The deal pledges EU funding and support to make the steel industry carbon neutral by 2030 and the shipping industry will be included in the emissions trading system for the first time. 

The deal aims to put the EU’s climate neutrality target by 2050 into law, and it aims to cut greenhouse gas emissions by at least 50% by 2030 compared with 1990 levels. It calls for tougher requirements on cutting emissions from road transport, as well as improving air and water quality and tightening pollution laws. Under the deal, energy efficiency will be increased and renewable energy targets put in place- currently renewable energy is at 17.5% with a target of 20% by 2020. Mass restoration of forests is outlined and there are calls for more organic farming and a cut in pesticides. 

Part of the deal is proposed financed through public-private cooperation. 

US Green Deal

Under this deal, greenhouse gas emissions will be cut in half by 2030 in line with the most ambitious Paris Agreement goals, there will be 100% renewable energy by 2030 (compared to 20% in 2019) and there will be stricter environmental protection provisions in trade deals. 

The deals calls for increased investment in research and technology, as well as nature-based solutions, developments for plans to ‘eliminate pollution and greenhouse gas emissions from the agricultural sector as much as is technologically feasible’, for increased investment in improving energy grids, or ‘smart grids’ and for the mass upgrade of all buildings in the country to be ‘as energy efficient, affordable and durable as possible’.

Greenhouse gases associated with transportation will be eliminated ‘as far as possible’ through investing in electric cars and clean, efficient and cheap public transportation, in addition to introducing higher standards and taxes on polluting cars. 

Commonalities Between the Green Deals 

Both deals recognise that the current economic system is not able to adequately address the climate crisis, that radical new ideas are needed and that the current system disadvantages poor countries and massively benefits the rich. Both deals recognise that environmental provisions in trade agreements must be implemented and made more prominent and that a border adjustment tax must be introduced to avoid carbon leakage. 

Additionally, both deals acknowledge the importance of nature-based solutions and that greenhouse gas emissions need to be cut, ideally to a negative percentage by using technology such as carbon capture and storage and renewable energy. Both deals call for a move towards a circular economy and acknowledge that because some areas will be hit hard by these measures, a ‘just transition’ or ‘solitary fund’ is necessary. 

Criticisms

The EU’s deal has been called ‘too little, too late’ by Greenpeace. It does not deal with microplastic and it still relies on market-based approaches and the inefficient EU Emissions Trading Scheme.

Meanwhile, the US deal’s goals are too optimistic; opponents argue that carbon neutrality by 2030 is unrealistic and that implementing the deal would be incredibly costly, with estimates ranging from $52-93 trillion. 

What’s Next?

The American Green New Deal is still being discussed in the House of Representatives but was rejected by the Senate. As for the European plan, a string of legislative and policy measures will be tabled in the coming months for the European Parliament and member states to discuss. In the EU’s legislative process, the member states sitting in the Council have a say, and it is likely that they will be more conservative and less willing to agree to radical proposals. 

Unlike the US Democrats’ Green New Deal, the EU’s version is technically feasible. Therefore, it could do much more to pave the way for future environmental gains. If the EU succeeds in its ambitions, it will tell the world that prosperity is not incompatible with climate sustainability.

Featured image by: Flickr

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