Review of European, Comparative & International Environmental Law

vLex
Publisher:
Wiley
Publication date:
2021-02-01
ISBN:
2050-0386

Issue Number

Latest documents

  • The Energy Charter Treaty: Letting the sun set on sunset clauses

    This article focuses on the sunset clause of the Energy Charter Treaty (ECT). The ECT is a multilateral investor‐state arbitration treaty which allows for the use of investor‐state dispute settlement (ISDS) tribunals to arbitrate challenges arising from shifts in energy policy that lead to a loss in profits for relevant energy companies. The treaty has become controversial as climate activists have alleged it is slowing down efforts to transition away from fossil fuels. Withdrawal from the ECT does not necessarily solve the alleged issues as the treaty contains a sunset clause, allowing for the provisions of the ECT to remain in force for 20 years post withdrawal. This article seeks to analyse various mechanisms and strategies for neutralising the sunset clause as part of a wider effort to ensure the ECT does not interfere with the phasing out of fossil fuels. It will be argued that such neutralisation should be possible through the use of Article 62 of the Vienna Convention on the Law of Treaties (VCLT), on the basis that there has been a fundamental change in circumstances since the inception of the treaty. This use of the rebus sic stantibus doctrine can be justified on the basis that a swift and substantial transition away from fossil fuels is now required to ensure states can meet their obligations under the Paris Agreement. This article will also explore alternatives to an Article 62 VCLT argument (i.e. a fundamental change in circumstances) that could nonetheless achieve the primary goal of ensuring that states are not bound to a pro fossil‐fuel treaty. Examples of alternatives include the insertion of a climate carve‐out to remove protections from investments that hinder climate action or the use of the defence of necessity in future ECT arbitration cases to argue that the state should not remain bound to the sunset clause. Regardless of whichever scenario is pursued by states, the article seeks to highlight that any and all efforts must be made to neutralise the sunset clause to ensure there is no interference with necessary efforts to pursue climate action.

  • National discretion or broadening acceptable interpretation? A comparative overview of the transposition and implementation of the Water Framework Directive

    European Union (EU) directives must be transposed into national systems and effectively implemented by all Member States. Differences between national legal systems are an inevitable reality when implementing EU law. Variations in the transposition and implementation of directives can lead to significant differences in the regulatory environment. This article discusses the variations in the transposition and implementation of the EU Water Framework Directive (WFD) in Austria, Finland, Germany and Sweden. What all the analysed Member States have in common are efforts to find ways to comply with the stringent requirements of the WFD. As Member States aim to achieve the requirements of the WFD, they simultaneously appear to look for ways to broaden acceptable interpretations of the WFD requirements to accommodate the national context. This article identifies and examines the different instances where such broadening of interpretation of the WFD has taken place in the four Member States.

  • The role of energy communities for thermal networks: An EU legal perspective

    Decarbonising heating and cooling systems, significant contributors to the EU's (European Union) energy consumption, is a complex and urgent matter. This article discusses the potential coupling of energy communities and district heating and cooling systems, particularly fourth‐ and fifth‐generation models, in the local energy transition. The integration of new‐generation district heating and cooling systems into renewable energy generation is crucial for sustainability, circular economy practices, and community‐based solutions. An examination of the EU legal framework within the Fit‐for‐55 package elucidates how provisions from the new Energy Efficiency Directive and Renewable Energy Directive facilitate the implementation of energy communities in the heating and cooling sector. The existing enabling legislation underscores the suitability of energy communities for heating and cooling sector activities, acknowledging their transformative potential in advancing the energy transition and fostering community empowerment.

  • A place for people's knowledge in climate evidence: Exploring civic evidence in climate litigation

    This article examines the possibilities for data gathered by individuals and communities to demonstrate climate impacts on people's lives in domestic and international climate litigation, as well as the likely procedural constraints that such evidence may encounter. Building on recent decisions of domestic, regional and international courts and bodies, and looking in particular at cases related to climate displacement, we consider the potential for civic evidence to provide valuable testimony in climate litigation, for example, grounding abstract and diffuse harms in personal and locally relevant frames. The article concludes by advancing a research agenda to test, and support or disprove, the argument developed that civic evidence from climate‐affected people could be more robustly deployed in climate litigation and could have a complementary and reinforcing, rather than competing, role alongside institutional evidence.

  • Can't see the carbon for the CO2? Regulating CCU value chains under and beyond climate law

    To realise the objectives of the European Green Deal (EGD), fossil carbon will have to be not only reduced but also replaced with recycled carbon. The European Commission considers industrial carbon management and carbon capture and utilisation (CCU) technologies to be part of the solution. A value chain ensues when carbon dioxide (CO2) is captured and utilised as raw material. Examination of the climate, energy and environmental legal landscape of one specific CCU value chain—comprising of waste, waste incineration and plastic raw material—reveals the varied approaches regulation has towards CO2 and carbon. In this article, both carbon cycle legislation and legislation on the carbon source and the material storing carbon are analysed. The legislation being developed directly for CCU for products (other than synthetic fuels) focusses on the carbon cycle and CO2 under the EU emissions trading system (ETS) and a proposed Carbon Removal Certification Framework. Regulatory uncertainty remains for the studied CCU value chain as the capture of CO2 from waste incineration has yet to be incentivised under the EU ETS. Further, the criteria for the permanence of carbon storage in products to qualify under the EU ETS and of the long‐term storage under the Carbon Removal Certification Framework (CRCF) have yet to be developed. For a more complete understanding, we have also analysed waste and product regulations. The conceptual structure of the EU Waste Framework Directive does not seem to support circulating carbon. This context also raises the fundamental question of whether the purpose of waste incineration could be carbon recycling instead of mere energy production. Regarding material storing carbon, plastics, the regulator has been silent as CCU‐originated plastic raw material is not recognised in EU plastics law. These issues must be identified and resolved one by one before the EGD can be secured; revisiting only climate law instruments does not suffice.

  • Addressing the international illegal wildlife trade through a human rights approach

    Cross‐border illegal wildlife trade (IWT) poses significant social, political and economic threats. Despite a 2013 recommendation from the Secretariat of the Convention on the International Trade of Endangered Species to incorporate a human rights perspective in counter‐IWT initiatives, our analysis of official documents spanning 2013–2022 reveals a lack of explicit implementation by international bodies. During the same period, global human rights organisations have given limited attention to the connections between IWT and human rights violations. In this article, we explore how integrating a human rights perspective can enhance the international legal framework and domestic measures against IWT. We conclude that to successfully implement counter‐IWT legislation, a shift in mindset is needed. A human rights approach is not just desirable, but rather necessary, in the interpretation, application and revision of policy interventions, for laws against IWT to be truly effective and equitable.

  • Navigating the legal uncertainty around the governance of an integrated energy system using the values of the energy transition and energy justice

    In order to realise the European Union's (EU) transition to clean and carbon‐neutral energy systems, various individual infrastructure systems and energy networks will have to coordinate and operate as an integrated energy system. Traditionally, these different infrastructure systems operate within their own sectors and are governed by separate legal regimes. The intersection of these different legal rules and interests creates regulatory uncertainty and risk for infrastructure operators and can dissuade operators from participating in system integration. This paper explores how infrastructure operators can overcome the legal uncertainty and regulatory risks of operating as an integrated system, whilst also ensuring that the policy objectives of the energy transition are realised. This paper argues that, by pursuing public values and energy justice principles, infrastructure operators will overcome the legal uncertainty surrounding system integration. By doing so, infrastructure operators will facilitate the realisation of an energy transition that is just, inclusive and in the public interest.

  • Navigating electricity network congestion: An examination of a principle‐based regulatory theory and strategy

    The digitisation of the energy sector is moving fast. At the same time, the transition to renewable energy brings challenges. However, legislative developments either move slowly or are introduced in a piecemeal manner. This situation is sometimes perceived as a regulatory mismatch and is problematic from the perspective of achieving climate and sustainability goals. The limited capacity of energy grids to transport electricity is a prime example of why we need a regulatory system that takes into account the fast‐paced development of technology while providing a consistent pathway for the future. In this contribution, we build on the scholarship that identifies energy principles. We analyse the extent to which principles play a role in new energy regulation and in Dutch mitigatory policies. As a theoretical framework for explaining the crucial role of principles in regulation, we use Fleming's normative proposal of the trias of energy regulation.

  • Regulating AI in the ‘twin transitions’: Significance and shortcomings of the AI Act in the digitalised electricity sector

    The use of artificial intelligence (AI) in the electricity sector is increasing as part of the twin digital and green transitions in the European Union (EU). AI technologies can be used for optimisation, prediction and scheduling purposes, offering possible solutions to the challenges presented by the ongoing energy transition. At the same time, AI technologies in general, not only in the electricity sector, also raise concerns about (unintended) harms and risks for people. To respond to these concerns, the EU has taken steps to regulate the responsible development and use of AI. A significant milestone in this endeavour is the recent adoption of the AI Act, the first horizontal EU legislation introducing harmonised rules for AI systems. In this paper, we examine different uses of AI in the electricity domain and investigate the extent to which the upcoming AI Act applies to them. In addition, we identify the shortcomings of the AI Act in the context of the electricity sector, as well as aspects that are not covered by this legislation. We show that the AI Act will only cover a narrow subset of AI systems in the electricity sector and that addressing some of the challenges that these systems pose may require further regulation.

  • Emerging technologies and environmental, energy and climate law

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