In what may seem a last ditch effort, the European Union has turned to the slow churning wheels of the law to stimulate climate action in 27 Member States (MS) towards a single goal: a carbon neutral Europe by 2050. European Commission (EC) president Ursula von der Leyen puts on a warm smile to say the text of the proposed European Union Climate Law is “actually rather short and it is rather simple.” We leave simplicity to constitutional lawyers, who may find “simple” an amusing word to describe a law with massive implications for national constitutions and EU treaties. Michael Davies-Venn has the story.
Pleas to enliven the “spirit of solidarity” on energy, a pitch to integrate MS within the Energy Union and the Renewable Energy Directive, have failed to the boost climate ambitions of MS. But any penny worthy jurist will attest: an untested law is no law. So, as we anticipate Poland vs. EU – a potential fictional case – climate actions needed today may have to wait for the wheels of justice at the European Court of Justice (ECJ), to grind on yet to be set details on the EU’s net-zero goal.
Cutting emissions costs money which some MS have more than others. Also, cutting emissions is often a bitter political pill easier swallowed in some MS than others who face bigger implementation challenges. These are among differences the proposed law will try to reconcile – realities the force of law and the power of the court must contend with. They are also differences a one-man show by Maroš Šefčovič, then Vice-President for Energy Union and EU Space Policy, failed to bridge with his Energy Union Tour. From Latvia to Luxemburg, Portugal to Poland, Šefčovič cajoled and coaxed presidents, ministers, and general public on the “real and tangible benefits” of an Energy Union but got few takers.
So where politics, diplomacy and legislation have failed, a climate law is to motivate the laggards. But will it work?
Justice as fairness
The law’s first challenge is a moral objective. Thus, it will respect “a level playing field.” And what it means by ”level” is one question the Visegrád Group is almost certain to cause the court to interpret. Anticipating this, the Commission provides a path to fairness in its Just Transition Mechanism and Modernisation Fund. These are the carrots. The sticks are unspecified “necessary measures” that the Commission will take against stubborn unobliging MS. And then the ECJ must decide the sufficiency of those provisions for Romania or Hungary to have met legal obligations under the law.
Setting sufficiency aside, taking the electricity sector as an example, the law essentially obliges MS transition from fossil fuels plants to renewable energy sources within 30 years. This is expected of Luxembourg, for example, where oil and gas dominate its energy sector. Another electricity decarbonisation option is through the EU ETS, which shall fund the Modernisation Fund. Where fairness is considered a moral virtue of a just law, will ECJ jurists consider as fair, for example, that for the Commission to provide cash to MS from this fund, they must provide “additional national resources”? Will the structure of those funds allow for redressing inequities in MS and respond to impacts from the “profound economic and social transformation” the Commission envisages from Poland, for example, implementing the European Green Deal?
As coal engines are fed the filthy food across Europe, jurists are certain to be chewing on arguments on the limits of EU law concerning MS rights on energy sources and use. Lisbon Treaty grants EU competence on energy but accords each MS the “right to determine the conditions for exploiting its energy sources, its choice between different energy sources and the general structure of its energy supply.” This “shared competence” is also confirmed in Article 4 of the Treaty of the Functioning of the European Union (TFEU).
The court will contemplate key EU principles – subsidiarity and proportionality – that guide the EU’s right of interference into MS regulatory affairs. To clear confusion and make a preemptive legal stand, the Commission’s law argues treaty law obliges the EU “contribute to pursuit, inter alia, of the following objectives,” including “combating climate change.” But the proposed law has only 6 lines outlining its “legal basis,” none of which addresses MS’ rights to energy sources exploit. It is with speed to match the climate crisis that the ECJ must demonstrate how the law allows EU rights that obliges MS compliance towards carbon neutrality without contravening their treaty rights on energy.
Social meaning of climate law
Laws are not interpreted in a vacuum. Consideration will include whether a MS has a history of fossil free energy production, whether its people are willing to or can absorb energy transition costs, and whether its politicians can or are able to swallow the political pill and seriously set about cutting emissions. Though the influence of these social contexts on stimulating climate action is indeterminable, they matter. The Dutch, for example, have among the oldest renewable energy infrastructure but their lost love for renewable consumption is noteworthy. Cultural attitudes toward renewables are important because consumers must pay decarbonisation costs. At such costs, the Germans balked, but their Energiewende stuck, as has their “Klimakanzlerin,” Chancellor Angela Merkel. Unconvinced citizens elsewhere may replace leaders with those who promise a better electricity deal than the European Green Deal.
All these question the suitability of a law to harmonise regulatory changes in 27 MS towards net-zero emissions by 2050. The Commission argues, “tackling climate change is an urgent challenge,” but its climate law is unsuitable for responding to that urgency. Redressing inequalities between MS remains a dream, turning net-zero into reality requires diplomatic capital, not a law that, in principle, presumes equality. An option consistent with the climate urgency should consider opportunities and respond to challenges that explain a consistent group of laggards and leaders among MS in response to the EU’s climate ambitions.