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In March, 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.

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

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.

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.

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. 

The European Commission has committed to protecting 30% of the lands and oceans in the EU by 2030 as part of the EU Green Deal’s biodiversity strategy. Environment groups have urged that such far-reaching ambitions be enforced stringently so as to not allow them to exist only ‘on paper’. What will be included in this fund and how effective will it be?

The New EU Biodiversity Strategy

The 10-year plan includes commitments to reduce the use of chemical pesticides by 50%, plant three billion trees by 2030 and reverse the decline in pollinators. Within these 30% protected areas in the EU, a third of land and sea will be under ‘strict protection’, meaning that there will be no human intervention besides minimal management to keep the area in good condition and boost biodiversity.

This follows a text drafted by the UN Convention on Biological Diversity in January that called for a global commitment to protect at least 30% of the planet in the next decade. 

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Areas under strict protection will include carbon-rich habitats such as primary and old-growth forests, peatlands, wetlands and grasslands. Currently, only 3% of land and 1% of marine areas are under strict protection. 

The Commission aims to raise at least €20bn per year to fund the plan. The report outlining the plan says that the money will come from private and public funding at EU and national level. A ‘significant’ proportion of the EU’s climate budget will also be invested in biodiversity.

Sabien Leemans, senior policy officer for biodiversity at WWF, says that this figure was “probably at the bottom of the scale, but it’s the first time they’ve mentioned a concrete figure, so that’s already good.”

The plan also puts pressure on reworking the common agricultural policy (CAP) which has been accused of driving biodiversity decline through its subsidy scheme that rewards farmers for the amount of land they own, rather than for making environmental improvements. 

10% of agricultural lands will be transformed into ‘high-diversity landscapes’ with the creation of buffer strips, hedges, ponds and fallow land. 25% of agricultural land will be managed organically by 2030. 

Ariel Brunner, senior head of policy at BirdLife International’s Brussels office, calls these agricultural targets a ‘game-changer’ and says that the 2100 biodiversity targets for agriculture were extremely weak because of the strength of the EU’s farming lobby, which resulted in a ‘lost decade’ for wildlife. 

He adds, “When you combine these new targets- and if they are implemented, which is a big if- then you are starting to look at healthy agriculture that can provide habitats for farmland birds and butterflies but also agriculture that can actually provide food at the end of the century.

This new strategy comes after decades of severe loss of biodiversity, with wildlife populations falling on average by 60% in the past 40 years as a result of human activities. The report adds that the COVID-19 pandemic has highlighted the link environmental and human health, calling for ambitious action.

However, some environmental campaigners are concerned that the commitments lack detail about how these changes will be implemented and enforced. 

Paul de Zylva, nature campaigner at Friends of the Earth, says, “It’s good to see ambition to extend protected areas, boost tree cover, cut pesticide use and to bring back species in decline. But there is a huge sense of déjà vu reading this latest strategy because many of the same ambitions have been set out, and not delivered, by previous nature plans.”

“Europe can’t afford another decade of failure to protect and restore our natural world,” he adds. 

The report acknowledges that not properly looking after protected land was having ‘disastrous consequences’ on biodiversity. 

The Commission promises to outline in 2021 legally binding targets on EU member states to restore nature reserves, such as meadows, peatlands, grasslands and forests, and boost biodiversity. Virginijus Sinkevičius, the EU commissioner for environment and oceans, says that without a ‘dedicated binding framework in support of the biodiversity strategy’, there is a ‘high risk that biodiversity loss would continue’. 

The European Commission has been criticised for being ‘too timid’ in taking national governments to court for breaking environmental rules. 

According to The Guardian, the Commission takes a law-breaking country to the ECJ without four months for a breach of EU’s transport rules, while the same process takes 66 months for flouting environmental standards.

Brunner says, “The real game-changer will be enforcement. That’s the acid-test for all of this- you can set the best targets in the world but if ultimately, people can just get away with criminal activity with no consequences, then it doesn’t hold.”

The plan is expected to be discussed at the UN Convention of Biodiversity, COP15, in Kunming in 2021. 190 countries will discuss biodiversity targets for the next decade, and it is likely that the EU will put pressure on other countries to follow its lead. 

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?

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.

The Main Points of Each Deal

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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