ISSN 2039 - 6937  Registrata presso il Tribunale di Catania
Anno XIII - n. 10 - Ottobre 2021

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How to make the European New Green Deal work: legal instruments for the environmental sustainability.

Di Anna Laura Rum
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How to make the European New Green Deal work:

legal instruments for the environmental sustainability.

ANNA LAURA RUM

 

Summary: 1. The European New Green Deal. 2. EU environmental policies and legislation. 3. Perspectives and expectations: how the New Green Deal could work. 4. References.

 

 

  1. The European New Green Deal.

The European New Green Deal[1] consists in a set of policy initiatives by the European Commission with the overarching aim of making Europe climate neutral in 2050. The plan would make Europe the first climate-neutral continent.

The European Commission's climate change strategy, launched in 2020, is focused on a promise to make Europe a net-zero emitter of greenhouse gases by 2050 and to demonstrate that economies will develop without increasing resource usage[2].

The European Green Deal extends to many different sectors, including construction, biodiversity, energy, transport and food.

Fighting climate change and achieving the transition to a climate-neutral society will require significant investments, research and innovation, new ways of producing and consuming, and changes in the way we work, use transport and live together[3].

This means achieving net zero greenhouse gas emissions for the EU countries as a whole, mainly by cutting emissions, investing in green technologies and protecting the natural environment.

The EU Institutions and the Member States are bound to take the necessary measures at EU and national level to meet the target, taking into account the importance of promoting fairness and solidarity among Member States[4].

The Climate Law includes measures to keep track of progress and adjust our actions accordingly, based on existing systems such as the governance process for Member States’ national energy and climate plans, regular reports by the European Environment Agency, and the latest scientific evidence on climate change and its impacts.

The legislative proposal was submitted to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions for further consideration under the ordinary legislative procedure.

The European Parliament and Council reached a provisional agreement on the Climate Law Regulation in April 2021. The file is currently being prepared for formal adoption.

Climate change presents the most significant environmental challenge that human society has been facing in the industrial era: the EU’s playing an increasingly active role in seeking out suitable policy responses and bringing them to legal fruition.

A new report by the Institute for European Environmental Policy (IEEP) and GlobeScan identifies the challenges to the European Green Deal’s implementation and provides policy recommendations for addressing them.

The transition to climate neutrality will bring significant opportunities, such as potential for economic growth, for new business models and markets, for new jobs and technological development.

 

  1. EU environmental policies and legislation.

Articles 191 to 193 of the Treaty on the Functioning of the European Union (TFEU) confirm and specify EU competencies in the area of climate change.

The legal basis for the New Green Deal proposal is Article 192 TFEU.

In accordance with Articles 191 and 192 TFEU, the European Union shall contribute to the pursuit, inter alia, of the following objectives: preserving, protecting and improving the quality of the environment, promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

Climate change is by its very nature a trans-boundary challenge that cannot be solved by national or local action alone: coordinated EU action can effectively supplement and reinforce national and local action and enhances climate action[5].

Particularly, coordination of climate action is necessary at European level and, where possible, at global level, and EU action is justified on grounds of subsidiarity.

Since 1992, the EU has worked to develop joint solutions and drive forward global action to tackle climate change.

More specifically, action at EU level should aim to provide for cost effective delivery of long-term climate objectives, while ensuring fairness and environmental integrity.

The establishment of a robust governance of the EU 2050 climate-neutrality objective will help to ensure that the EU remains on track to achieve the objective: an action on climate change adaptation at EU level enables the integration of adaptation policies and measures in key sectors, governance levels and EU policies.

The proposal complies with the proportionality principle because it does not go beyond what is necessary in order to set the framework for achieving climate neutrality.

It requests Member States to take the necessary measures to enable the collective achievement of the climate-neutrality objective but it does not prescribe specific policies or measures, leaving Member States flexibility, taking into account the regulatory framework to achieve 2030 greenhouse gas emission reduction targets.

It sets a mechanism for reviewing existing policies and Union legislation or taking additional measures, but does not include the detailed proposals yet.

Similarly, the proposal provides for flexibility to ensure that the EU improves its adaptive capacity to the impacts of climate change.

The objectives of the present proposal can best be pursued through a Regulation. This will ensure direct applicability of the provisions.

Requirements are placed on Member States to contribute to achieving the long-term objective.

Moreover, many of the provisions are directed to the Commission (assessment, reporting, recommendations, additional measures, review) and also to the European Environment Agency and could therefore not be implemented by national transposition.

A legislative rather than a non-legislative approach is needed to anchor the long-term objective into EU law.

In the last decades, EU environmental law has evolved from a sectoral, technical policy to one of guiding components of the EU legal and political substratum.

Anchored in the principles of integration and sustainable development, coupled with the concept of a high level of environmental protection carved in the EU Treaties, environmental protection has become an all-present and influential aspect of the EU law.

The Court of Justice of the European Union (CJEU) has played a particular role in the process of this evolution and recognition, although without any explicit legal basis and in a context of a Treaty, but just declaring environmental protection to be one of the essential objectives of the Community.

 

  1. Perspectives and expectations: how the New Green Deal could work.

The EU has committed to achieving climate neutrality by 2050: reaching this objective will require a transformation of Europe’s society and economy, that will need to be cost-effective and socially balanced.

Indeed, without efficient legal instruments of enforcement, the New Green Deal impact is compromised since the very beginning.

An environmental rule of law appears to be central to sustainable development. It may integrate environmental needs with the essential elements of the rule of law and provide the basis for improving environmental governance.

Environmental law may highlight climate sustainability, reflect universal moral values and ethical norms of behaviour, and provide a foundation for environmental rights and obligations.

Without it, the environment governance may be arbitrary, discretionary, subjective, and unpredictable.

Also,  the access to Justice appears a fundamental means through which citizens can support the implementation and enforcement of laws and policies to protect the environment.

 

  1. References.
  • Fleming, Mauger, “Green and just? An update on the European Green Deal”, Journal of European Environmental & Planning Law 18, 2012, 164-180;
  • Kulovesi K., “EU Emissions Trading Scheme: preventing carbon leakage before and after the Paris Agreement”, in Leal-Arcas, R. (ed.) Research handbook on EU energy law and policy. Cheltenham: Edward Elgar, 2017, 417–431;
  • Lindberg M. B., “The EU Emissions Trading System and Renewable Energy Policies: Friends or Foes in the European Policy Mix?” Politics and Governance, 2019, 7, 1: 105–123;
  • Oberthür S., “Hard or Soft Governance? The EU’s Climate and Energy Policy Framework for 2030” Politics and Governance, 2019, 7, 1: 17–27;
  • Parker C. F., Karlsson, C. and Hjerpe, M., “Assessing the European Union’s global climate change leadership: from Copenhagen to the Paris Agreement. Journal of European Integration”, 2017, 39, 2: 239–252;
  • Storm S., “The EU’s Green Deal: Bismarck’s “What Is Possible” versus Thunberg’s “What Is Imperative” in the Age of Covid-19”, Brave New Europe, 1 April 2020, https://braveneweurope.com/servaas-storm-the-eus-green-deal-bismarcks-what-is-possible-versus-thunbergs-what-is-imperative-in-the-ageof-covid-19;
  • European Parliament, “Non-paper on the choice of delegated acts to set out the trajectory for achieving climate neutrality in the proposal for a European Climate Law [2020/0036(COD)], 31 March 2020

 

 

NOTE:

[1] About the European New Green Deal see, ex multis, Storm, S. (2020) The EU’s Green Deal: Bismarck’s “What Is Possible” versus Thunberg’s “What Is Imperative” in the Age of Covid-19. Brave New Europe, 1 April. https://braveneweurope.com/servaas-storm-the-eus-green-deal-bismarcks-what-is-possible-versus-thunbergs-what-is-imperative-in-the-ageof-covid-19; Varoufakis, Y. and Adler, D. (2020) The EU’s green deal is a colossal exercise in greenwashing. The Guardian, 7 February. https://www.theguardian. com/commentisfree/2020/feb/07/eu-green-deal-greenwash-ursula-von-derleyen-climate; Gabor, D. (2020) The European Green Deal will bypass the poor and go straight to the rich. The Guardian, 19 February. https://www.theguardian.com/commentisfree/2020/feb/19/european-green-deal-polish-miners; Szulecki, K. (2020) ‘Europe’s greenest Commission ever faces an unprecedented challenge as the clock ticks’, Dahrendorf Forum, 16 January. https:// www.dahrendorf-forum.eu/europes-greenestcommission-ever-faces-an-unprecedentedchallenge-as-the-clock-ticks/

[2] See European Commission (2019) The European Green Deal, COM(2019) 640 final, 11 December. https://ec.europa.eu/info/sites/info/files/european-green-deal-communication_en.pdf

See also European Commission (2020). EU Emissions Trading System (EU ETS). https:// ec.europa.eu/clima/policies/ets_en and European Commission (2020). Effort sharing: Member States’ emission targets. https://ec.europa.eu/clima/policies/effort_en.

[3] See Vihma, A. (2019) What’s next for UN climate negotiations? The UNFCCC in the era of populism and multipolar competition. FIIA Briefing Paper 257, March. https://www.fiia.fi/wp-content/uploads/2019/03/bp257_un_climate

[4] For more detailed analysis, see Oberthür (2019) op. cit., and Ringel, M. and Knodt, M. (2018) The governance of the European Energy Union: Efficiency, effectiveness and acceptance of the Winter Package 2016. Energy Policy. 112: 209–220

[5] See European Parliament (2020) Non-paper on the choice of delegated acts to set out the trajectory for achieving climate neutrality in the proposal for a European Climate Law [2020/0036(COD)], 31 March; see, also, European Conservatives and Reformists (2020) Legal opinion: Green Deal delegated acts are incompatible with EU Treaties, 2 April. https://ecrgroup.eu/ article/legal_opinion_green_deal_delegated_acts_are_incompatible_with_eu_ treaties