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Europe



09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren (TLS)

Today, the Court of Appeal in the Dutch city of The Hague rendered its judgment in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Court of Appeal today rejected all objections by the State in firm and straightforward language. The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Court of Appeal, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the CO2 concentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Court of Appeal briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44).

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs,[1] courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers. On the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved, thus avoiding interference with policy-making.

In remarkably clear language, the Court of Appeal rejected all other objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Court of Appeal invokes the precautionary principle. The Court of Appeal stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have a proactive and effective climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Court of Appeal argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more, as within the EU climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Court of Appeal considered it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Court of Appeal simply rejects this by referring to the special position of the Netherlands as a rich, developed state that has gained much of its wealth through extensive use of fossil fuels. Quite humourful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Court of Appeal!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Court of Appeal simply referred to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Court of Appeal does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

We will engineer ourselves out of the problems 

The State argued that its policy goals partly rely on climate engineering (“negative emissions technologies”) through which CO2 can later be removed from the atmosphere. The Court, however, is not willing to take these future technologies into account: “the option to remove CO2 from the atmosphere with certain technologies in the future is highly uncertain [..] (and) the climate scenarios based on such technologies are not very realistic considering the current state of affairs”(No. 49).

 

Today the Dutch Court of Appeal followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

 

 

[1] Here, Dutch law goes beyond what is required by the European Convention on Human Rights as under case law by the European Court of Human Rights (ECtHR) environmental NGOs cannot invoke human rights in an attempt to defend the environment as a general interest. According to the ECtHR, NGOs are only allowed to represent the individual interests of their members in case their members are potential victims of human right infringements. See extensively Jonathan Verschuuren, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363, at 371-372.


13/06/2017

Enhancing Soil Carbon Sequestration and Adaptation in Europe’s Agricultural Sector: Towards a New Approach under CAP and ETS

By Jonathan Verschuuren (TLS)

Soils contain large quantities of carbon, mainly made up of decomposing plant materials and microbes. The Earth’s soils contain around 2500 Gt of carbon, four times more than vegetation.[1] Through soil degradation, much of natural soil carbon stocks has been lost. It has been estimated that the carbon sink capacity of the world’s agricultural and degraded soils is 50 to 60% of the historical carbon loss of 42 to 78 Gt of carbon.[2] With around 40% of the world’s surface being used for agriculture, it is suggested that these agricultural lands may be used as an important sink for atmospheric carbon.[3] Soil erosion control and soil restoration has an estimated carbon sequestration capacity of between 5 and 15% of global emissions.[4] After peaking, a new equilibrium will be reached and the sequestration potential goes down. It should also be noted that the carbon stored in soils can be easily emitted again with deep tillage and significant soil disturbance.[5]

(Photo: Flickr user Kai C. Schwarzer)

(Photo: Flickr user Kai C. Schwarzer)

Increasing soil carbon sequestration has a very interesting positive impact on climate change adaptation. Measures aimed at soil carbon sequestration increases the ability of soils to hold moisture and to better withstand wind and water erosion, enriches ecosystem biodiversity, helps cropping systems to better withstand droughts and floods, increases fertility for crops through restoring healthy soil microbial communities, and increases livestock efficiency (sustainable intensification).[6] Other potential positive side-effects of practices aimed at soil carbon sequestration are various environmental benefits, such as avoided use of chemical fertilizers and pesticides and improved biodiversity and wildlife.[7]

Examples of soil carbon sequestration practices relevant for Europe are the application of conventional or organic no-till and conservation tillage systems, the use of periodic green fallows, winter cover crops and crop rotations that utilize semi-perennial crops, rotational grazing, decreased grassland management intensity, perennial cropping, nutrient management consisting of compost (crop residue addition) and organic manure, and judicious use of irrigation water.

Research shows that strong top-down policies that are linked with, and fed by, bottom-up initiatives, are needed to achieve the required level of adaptation in the agricultural sector.[8] Holistic strategies have to be adopted that go beyond technical approaches aimed at stimulating autonomous farm-level risk reduction. So far, the EU did not focus much attention on agriculture in its climate change adaptation policy. The EU’s Adaptation Strategy refers to the Common Agricultural Policy (CAP) in which adaptation measures have been integrated to a limited extent.[9] An assessment of the soil carbon related adaptation potential of the current CAP, however, shows that this potential is limited. Soil carbon projects can receive funding both under the green direct payments, and under the rural development policy. Whether such projects are actually carried out with CAP funding depends entirely on initiatives by farmers (for green direct payments), or by Member States (for the rural development policy). Unfortunately, there are not many indications that Member States radically focus their Rural Development Programmes (RDP) on climate change, perhaps with the exception of Ireland. The CAP also has several inherent constraints as far as soil carbon sequestration and associated adaptation are concerned, mostly due to the fact that CAP is not linked to the EU climate policy but serves as a separate instrument with a much wider policy goal than combatting climate change. The accounting rules, for example, do not require farm level quantification of the amount of carbon sequestered linked to the payment, so it cannot be assessed whether and in how far an increase in soil carbon levels is real, additional and verifiable. Integrating the CAP more into the EU’s climate policy requires rules to be set in place to assure a reliable measuring of the carbon sequestered. Payments, to give another example, are based on the amount of hectares per year of measures under the RDP, not on the amount of CO2 sequestered. This is a consequence of the provision that payments can only cover additional costs and income forgone resulting from the commitments made.[10] Such indirect payments, therefore, do not stimulate farmers to sequester as much carbon as possible. A third example of the CAP’s shortcomings with regard to soil carbon sequestration is that projects financed under the CAP are characterized by a relatively short lifespan, 1-5 years for green direct payments, and 5-7 years for projects under a RDP. Under a climate policy, such a lifespan is almost futile, as combatting climate change requires measures that cover decades, if not the entire 21st century. That is why in Australia, carbon sequestration projects are required to run for twenty five or even a hundred years (see blog posts on Australia’s carbon farming legislation part 1 and part 2).

Towards an alternative approach: agriculture in the EU ETS

The conclusion that the current EU policy is completely inadequate to stimulate large scale soil carbon sequestration on agricultural land seems inevitable, also when taking into account the broader climate change mitigation policy. The recently presented proposal for a European Regulation on the inclusion of greenhouse gas emissions and removals from land use and forestry into the EU’s 2030 climate framework (LULUCF Regulation) is a good first, yet inadequate, step towards including agriculture’s emissions and sequestration potential into the EU’s climate policy (see for broader assessment of the climate policy instruments, the paper). That is why an alternative approach needs to be developed. A further stimulus to the adoption of soil carbon projects that currently is not being discussed but that needs to be investigated at European level soon is the inclusion of agriculture in the EU ETS through allowing regulated industries to buy offsets from the agricultural sector, following the examples set by California, Alberta, Australia, and more recently also China.[11] These states show that it is possible to stimulate soil carbon sequestration (and other climate smart agriculture practices and technologies) through the ETS, provided an elaborate regulatory regime has been put in place to ensure integrity. When in place, sectors covered by the ETS will be allowed to finance sequestration projects on farm land, thus paying farmers for their efforts.

The recent report of the Agricultural Markets Task Force, a European Commission expert group, also proposes to incentivise to farm carbon in addition to crops. The Task force, however, proposes to do this through redirecting funds under the CAP after 2020. It is debatable, though, whether this will be a successful strategy given the inherent shortcomings mentioned above. Some of the current constraints can perhaps be repaired, such as the short commitment period, or the provision that payments can only cover additional costs and income forgone. It is highly unlikely, though, that the CAP budget will be big enough to cover an EU wide adoption of carbon farming practices. An evaluation of the Australian carbon farming legislation indicated that government funds will never suffice to roll out an incentive mechanism across all farms in the country and that private funds need to come in, either through a carbon tax or an ETS.[12] The latter seems very suitable for the EU with its well-developed ETS that, hopefully, will pick up speed again after the structural reform takes effect in the fourth trading phase, which runs from 2021 until 2030. Regulation aimed at establishing a finance flow from large industrial emitters to the farming sector, with its capacity to sequester large quantities of carbon on farm land, seems a promising alternative, which is completely in line with the polluter pays principle as laid down in Article 191(2) of the Treaty on the Functioning of the EU.

 

[1] Daniel Kane, Carbon Sequestration Potential on Agricultural Lands: a Review of current Science and Available Practices (Breakthrough Strategies & Solutions, Takoma Park, Md 2015).

[2] Emanuele Lugato et al., ‘Potential carbon sequestration of European arable soils estimated by modelling a comprehensive set of management practices’, (2015) 20 Global Change Biology 3557.

[3] Pete Smith, ‘Agricultural Greenhouse Gas Mitigation Potential Globally, in Europe and in the UK: What Have We Learnt in the last 20 Years?’ (2012) 18 Global Change Biology 35.

[4] M.G. Rivera-Ferre et al., Re-framing the Climate Change Debate in the Livestock Sector: Mitigation and Adaptation Options, (2016) 7 WIREs Climate Change 869.

[5] Ibid.

[6] P. Smith et al., ‘Agriculture, Forestry and Other Land Use (AFOLU)’ in: O. Edenhofer et al. (eds.), Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 811, 846 and 847; J.R. Porter et al., ‘Food security and food production systems’ in: C.B. Field et al. (eds.), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 485, 515 and 518.

[7] Annette Freibauer et al., ‘Carbon Sequestration in the Agricultural Soils of Europe’ (2004) 122 Geoderma 1.

[8] L. Bizikova et al., Climate Change Adaptation Planning in Agriculture: Processes, Experiences and Lessons Learned from Early Adapters, (2014) 19 Mitigation and Adaptation Strategies for Global Change 411.

[9] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Strategy on Adaptation to Climate Change, COM (2013) 0216 final, 8.

[10] Art. 28(6) Regulation (EU) No 1305/2013.

[11] Jonathan Verschuuren, Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative, (2017) 7:1 Climate Law 1; Dong Sun et al., Carbon Markets in China: Development and Challenges, (2016) 52:6 Emerging Markets Finance and Trade 1361.

[12] Verschuuren 2017.

 

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 This blog is a summary of a paper accepted for presentation at the 3rd European Climate Change Adaptation Conference ‘Our Climate Ready Future’, Glasgow, 5th-9th June 2017 (ECCA2017). My project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU

 

 


07/08/2016

The evolving potential of the (non-) compliance mechanisms of the Bern Convention on European Wildlife Conservation

By Jennifer Dubrulle

1. Effectiveness of non-compliance mechanisms: EU nature protection laws topdog – Bern Convention underdog?

In discussions on the protection of wild animals in Europe the Bern Convention’s[1] (non-) compliance mechanisms[2] are easily overlooked and overshadowed by those of the European Union. We all know, right, that the EU is praised for its elevated (non-) compliance mechanisms.[3]

The enforcement powers of the Standing Committee, the body entrusted with the task of monitoring the application of the Bern Convention, exercises its power in an innovate way, in particular through the case-file procedure. In the European Union, the European Commission takes up a similar role via the infringement procedure.[4]

Tag cloud of activities of the Bern Convention's Standing Committee (source: http://www.coe.int/en/web/bern-convention/institutions)

Tag cloud of activities of the Bern Convention’s Standing Committee (source: http://www.coe.int/en/web/bern-convention/institutions)

The enforcement powers of the Standing Committee, if one looks at the final result that can be obtained, are rather underwhelming. The Standing Committee cannot do much more than issue, as the appellation suggests, non-binding recommendations, only able to facilitate, rather than coerce Member States into compliance. In daily practice, however, the procedure stands out in several respects. These recommendations are more flexible than judgments are, not focusing on assessing whether legal provisions were violated, but formulating practical, tailor-made measures to address specific conservation concerns on site. In stark contrast to the EU,[5] the complainant is allowed a generous degree of participation throughout the procedure.[6] The Standing Committee treats the complainant/NGO and the Contracting Party on a more equal footing: both parties are encouraged to respond to each other’s arguments prior to the Standing Committee’s decision whether to take further measures or not. The procedure is also transparent, key documents of the non-compliance procedure are publicly available.[7] Another advantage is that the Standing Committee has extensive powers of investigation.[8]

2. Two protection pillars of which possible violation triggers non-compliance mechanisms

International, European and national wildlife laws’ basic structure is identical in the sense that these laws contain species protection provisions, protecting the animal wherever it goes (e.g. hunting prohibitions), and habitat protection provisions, protecting the areas where these animals live. The Bern Convention is not much different on this point. Once these key provisions[9] of the Bern Convention are (presumed to be) violated non-compliance mechanisms become increasingly relevant, unless a contracting party can successfully rely on an exception ground.[10]

3. The Bern Convention’s non-compliance mechanisms

The compliance tools in the Bern Convention are what one expects to find: the Contracting Parties are obliged to report on their compliance with the Convention. The Convention also provides for a, commonly encountered in MEAs, dispute settlement procedure, allowing contracting parties to designate an arbitrator to settle disputes that arise between them.[11] Rarely applied in practice, Contracting Parties are hesitant to bring each other before an arbitrator.

Interestingly, the most significant compliance tools are not explicitly provided for in the Convention.[12] There is no explicit provision for a compliance-focused procedure within the Bern Convention. The Contracting Parties, through a bold interpretation of existing Convention provisions,[13] determined that these provisions provided a sufficient basis for the development of the case-file procedure.[14]

3.1 Case-file procedure

The whole idea behind the case-file procedure is to encourage Contracting Parties to address concrete conservation problems at particular sites and the means by which to do so. Any party may refer a complaint to the Standing Committee in respect of a Contracting Party’s failure to comply with its obligations under the Bern Convention. The Secretariat, after seeking further information from the parties concerned, decides whether there are grounds for placing the complaint as a ‘file’ on the agenda of the next meeting of the Standing Committee. A threshold to determine this is to decide whether the complaint is sufficiently serious to merit international attention, considering procedures that may already be pending at the (inter) national level as well as the seriousness of the breach. If the Standing Committee chooses to open a file it may adopt specific recommendations designed to bring the state into compliance with its obligations or authorize an on-the-spot appraisal to seek further information. The Standing Committee has a broad mandate to make recommendations to individual parties and these recommendations may be site or activity specific, such as the removal of buildings on a nesting beach or rerouting a road likely to impact on a critical habitat.[15]

The Balkan Lynx Case-file demonstrates how the non-binding case-file procedure succeeds in having significant impacts in practice. The Balkan lynx, the smallest and most threatened native Eurasian lynx subpopulation,[16] consists of about 27-54 independent individuals, mostly distributed along Albania and Macedonia. The only reproductive area left is in Macedonia, in the Mavrovo National Park.  An NGO, Eco-vest, filed a complaint in 2013 because of the government’s plan to build 22 hydropower plants on the territory of the park, 2 of which are large-scale.[17] One of the large-scale plants, Boskov Most Hydro Power Plant (HPP), would be built in prime lynx habitat.[18] The complainant argued that the environmental assessment was insufficient to judge the impact of the project on in particular the lynx.[19] 2011[20] and 2012[21] Bern Convention recommendations already requested Macedonia to assess the impacts of the dams on the lynx population and take measures to maintain the ecological characteristics of the site, further strengthening the argument. The lynx is protected under Appendix III of the Convention, meaning that killing is not prohibited but that the species – at least – must be protected from danger. As the Balkan lynx is, in accordance with the IUCN red list categorization, critically endangered the project is in clear breach of the Bern Convention’s species protection provisions. The Standing Committee found it unwise to put any additional stress on the lynx and issued a tailor-made recommendation requiring that a comprehensive environmental assessment would be carried out before the project could go ahead; that in application of the precautionary principle all construction projects had to be suspended as long as the overall impact had not been fully assessed and that the World Bank (WB) and the European Bank for Reconstruction and Development (EBRD) should immediately suspend financing.[22] As a result, the EBRD[23] as well as the WB[24] suspended financing.

Balkan Lynx (Photo: Jörg Pukownik)

Balkan Lynx (Photo: Jörg Pukownik)

Over the years, the Standing Committee identified a shortcoming in the case-file procedure: it can only be started by a complaint that presumes that a Contracting Party failed to comply with Convention provisions. Because failing to honor international obligations is a serious matter, most governments refuse to admit they breached international law, making it more difficult to find effective solutions. Over the years, the Standing Committee felt increasingly reluctant to open new case-files, trying to avoid the common perception that opening a case-file means there is a presumption of breach. To circumvent this perception the Standing Committee sometimes decided to not open a case-file but investigate the matter more informally, focusing on the adoption of recommendations to improve wildlife protection in practice.[25] In 2015, so this procedure is fresh meat, the mediation procedure was formalized under the Bern Convention.

3.2. Mediation procedure

The Standing Committee formalized the mediation procedure to avoid ‘lost opportunities’, that is cases where Contracting Parties did not necessarily breach the Convention, but where intervention would be useful to achieve the Convention’s aims. The mediation procedure is meant to foster dialogue between the complainant and the government and find practical solutions, without blaming a Contracting Party.[26]

The mediation procedure is kicked off, by a Standing Committee decision, mostly after submission of a complaint that did not have enough gravitas to justify the opening of a case-file. The mediation procedure is subject to agreement of the Contracting Party involved. An expert is appointed, a so-called ‘honest broker’ who acts as a mediator.[27] All parties join a mediation visit and in the best case scenario a mediation agreement is drafted. The first mediation file, opened in 2015, ended up in a mediation agreement between a complaining Lithuanian NGO, Association Rudamina Community, which argued that the building of an overhead powerline in Lithuania would affect wild species such as high-flying birds and the European pond turtle, and the Lithuanian government.[28]

4. Conclusion

1. Not everything is what it seems

There are arguments to challenge the perception that binding instruments are preferable over non-binding instruments. Although the Bern Convention recommendations are not binding, these are flexible in their application, and, strengthened by the Standing Committee’s ability to gather information from the site in question, allow the Standing Committee to make practical, site-specific recommendations, rather than simply relying on desk studies/reports.

2.  Investors do not want to be associated with breaches of International Environmental Law

All investors in the discussed cases took international environmental law seriously. Both the WB and the EBRD backed out of the Macedonian HPP because these large-scale dams violated the Bern Convention. Large-scale projects are often at least co-financed by institutions that care about their reputation and are not insensitive, not even to, non-binding recommendations.

In short, although the Bern Convention’s added value is most apparent beyond the EU, it arguably plays, because of its practical approach, a distinct role within EU Member States as well.

5. Outstanding questions raised at the conference[29]

-      Are these two cases really indicative of the power of non-binding instruments or just outliners? A comprehensive answer to this question requires an investigation on what happened/is happening on the ground in the, as of 1 February 2016, 161 Bern Convention (possible) case-files;[30]

-      How do the EU and Bern Convention’s non-compliance mechanisms interrelate? My intuition is that the Bern Convention offers adequate relief in cases where a no-nonsense practical solution (answer to the question: ‘what do we actually have to do to improve conservation?’) to address conservation concerns on the ground and the means by which they might do so is sought. Member States that are not tempted to act on the basis of a, non-binding, reminder only might be in need of the European Union’s more coercive non-compliance treatment.

 

 

[1] This Convention, for those unfamiliar with it, is an international wildlife treaty that was adopted within the Council of Europe in 1979. The Convention attracted broad participation, with 51 parties, among which all EU Member States, most members of the Council of Europe (Russia being a notable exception) and a few African countries. For those more familiar with European law, the Bern Convention served as an inspiration for the 1992 Habitats Directive. Key provisions on species protection and habitat protection in the Bern Convention have been, along the same lines, copy-pasted into the Habitats Directive.

[2] I have drawn largely from F. Fleurke’s and A. Trouwborst’s analysis of the EU and Bern Convention’s enforcement mechanisms and Karen N. Scott’s analysis of the Bern Convention’s non-compliance mechanisms (F. Fleurke and A. Trouwborst, ‘European Regional Approaches to the Transboundary Conservation of Biodiversity: The Bern Convention and the EU Birds and Habitats Directives’, in L.J. Kotzé and T. Marauhn (eds.), Transboundary governance of Biodiversity, Brill/Nijhoff, 2014, 128-162; Karen N. Scott, ‘Non-compliance Procedures and the Implementation of Commitments under Wildlife Treaties’, in M.J. Bowman, P.G.G. Davies and E.J. Goodwin (eds.), Research Handbook on Biodiversity and Law, Edward Elgar, 2016, 425-428).

[3] Besides the legal protection offered by the European Court of Justice (CJEU), which has no equivalent in most MEAs, it is, under certain conditions, possible to directly or indirectly invoke EU law and legal instruments (such as Reg./Dir.) before national courts. The same is true for international law, such as the Bern Convention, but only in monist countries, where international law is accepted as a part of the national legal order. Another distinguishing feature of the EU (non-) compliance mechanisms is its preliminary reference procedure. If national courts have questions on the validity or interpretation of EU law they can refer these questions to the CJEU, which via a ruling, provides clarity on EU law, enhancing compliance. The Bern Convention, or most MEAs for that matter, do not have such a system.

[4] The Commission’s enforcement activities are usually triggered by a citizen’s complaint, often NGOs, reasoning that the nature protection directives have been badly applied. The Commission is happy to receive these complaints but requires the complainant to stay out of discussions on whether to look into the case and whether to take the case to the CJEU. The Commission only informs the complainant of the result of the negotiation between the Commission and the Member State. These negotiations are confidential: letters of formal notice or reasoned opinions are not made publicly available. The Commission’s enforcement powers are weakened by its lack of investigative and fact-checking powers. The Commission has no inspectors who could check the application of the nature directives within a Member State. (L. KRÄMER, ‘EU Enforcement of Environmental Laws: From Great Principles to Daily Practice – Improving Citizen Involvement’.)

[5] Ibid.

[6] Scott (n2) at 427.

[7] For the case-file documents in the Balkan Lynx and Lithuanian Powerline Project case (discussed under 3.1 and 3.2), see http://www.coe.int/en/web/bern-convention/-/35th-standing-committee-meeting (both discussed at the Bern Convention’s 35th Standing Committee Meeting, 1-4 December 2015).

[8] Scott (n2) at 246.

[9] The Convention requires the protection of all wildlife species at a level that corresponds to ecological requirements. Parties can also cater for economic needs but in case of conflict between ecological and economic considerations, priority is given to the former. Some animals are on Appendix II, making them strictly protected species. It is for those animals prohibited to be killed, disturbed, damaged etc. These species benefit from a protective shield of armor. Other wild animals are enlisted on Appendix III and do not benefit from the prohibition to be killed or captured. Populations of the latter animals have to be kept out of danger. The Convention also requires parties, in pretty generic terms, to ensure habitat conservation (art. 4). This provision has been further developed through the designation of Areas of Special Conservation Interest under the Emerald Network. In the European Union, the Natura 2000 sites are their contribution to the Emerald Network. (See Fleurke & Trouwborst (n2).)

[10] A topical example concerns the border fences that have been erected throughout Europe to control migrant streams. Although these fences might hinder wildlife, Contracting Parties might, and possibly successfully, argue that this is necessary to maintain public safety, a possible exception ground.

[11] Bern Convention, Article 18(2).

[12] Scott (n2) at 426.

[13] That is the combined reading of Article 18(1) that provides that the Standing Committee endeavors to facilitate the settlement of difficulties and Article 14 that mandates the Standing Committee to make recommendations and arrange meetings.

[14] Scott (n2) at 426.

[15] Ibid. at 425.

[16] This population is morphologically and genetically very distinct from other Eurasian lynx populations in Europe and thus a separate subspecies (a distinct phylogenetic lineage of the Eurasian lynx) to be regarded as a conservation unit. (Bern Convention, T-PVS/Files (2015) 41, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), Observers’ report following the on-the-spot appraisal, Report by Mr, Andràs Demeter, advisor, 35th Meeting, Strasbourg, 1-4 December 2015, 18.)

[17] Boskov Most HPP, mainly funded by the EBRD and Lukovo Pole HPP, mainly funded by the WB.

[18] Bern Convention, T-PVS/Files (2015) 36, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), On-the-spot appraisal, Report by Mr. Pierre Galland.

[19] Bern Convention, T-PVS/Files (2015) 41, Hydro power development within the territory of Mavrovo National Park (“The former Yugoslav Republic of Macedonia”), Report by the Complainant Eko-svest; Also see Observers’ report (n16) at 22; On-the-spot appraisal report (n18) at 11.

[20] Recommendation No. 157 (2011) of the Standing Committee on the status of candidate Emerald sites and guidelines on the criteria for nomination.

[21] Recommendation No. 162 (2012) of the Standing Committee on the conservation of large carnivore populations in Europe requesting special conservation action.

[22] Recommendation No. 184 (2015) on the planned hydropower plants on the territory of the Mavrovo National Park (“The former Yugoslav republic of Macedonia”).

[23] E.g. news item on the Environmental Justice Atlas website confirms the EBRD decided to suspend funding for Boskov Most HPP until the results of the new environmental assessment are made available.

[24] E.g. joint press release by CEE Bankwatch Network, EuroNatur and Riverwatch confirmed that the WB withdrew funding for Lukovo Pole HPP.

[25] Bern Convention, T-PVS (2011) 14, Standing Committee, 31st meeting, Improving the Case-File System of the Bern Convention, document prepared by the Directorate of Culture and Cultural and Natural Heritage, 5-6.

[26] Ibid. at 6.

[27] Ibid. at 6.

[28]  Certain elements of the case pushed for mediation: the complaining NGO touched upon consequences the project would have on bird and animal life but data on species occurrence and the linkage to the conservation status of the species in the region is limited. Also, both the project investor, Nordic Investment Alliance, provided that its sustainability requirements were not breached and the Lithuanian Nature Fond argued the project did not violate environmental laws. Parties signed a Mediation Agreement consisting of 16 bullet points, amongst which practical recommendations: parties for instance agreed to adopt a monitoring plan for the species that are protected under the Bern Convention as well as installing flight diverters to make power lines visible to bird species. (Bern Convention, T-PVS/Files (2015) 51, Standing Committee, 20 October 2015, Mediation Procedure in the frame of complaint number 2013/5: presumed impact of a construction of overhead power lines (OHL) in an environmentally sensitive area in the Lithuanian-Polish borderland, Report of the visit, Document prepared by Mr Michael Usher, p. 14 for the Mediation Agreement.)

[29] I4th Annual Colloquium of the IUCN Academy of Environmental Law, at which this research was presented.

[30] For an overview of the (possible) files under the Bern Convention as of 1 February 2016 see:  Bern Convention, T-PVS/Inf (2016) 2, Standing Committee, 36th Meeting, Register of Bern Convention Complaints, 1 February 2016.

 — x —

This post comes down to the written script of a recent conference presentation.  The purpose of the presentation was to lay a foundation that could serve as a basis for discussions (read: this is work in progress) on the value of the Bern Convention non-compliance mechanisms compared to the EU non-compliance mechanisms (J. DUBRULLE, 2016. Not a paper tiger, but a wily lynx: the evolving potential of the (non-) compliance mechanisms of the Bern Convention on European Wildlife Conservation, 14th Annual Colloquium of the International Union for the Conservation of Nature (IUCN) Academy of Environmental Law, Oslo (Norway), 23 June 2016). With many thanks to Arie Trouwborst and Floor Fleurke for not only giving me the idea to investigate this but also helping me out, more than one could reasonably expect, on the general outline/direction of this presentation. Credit is due to Melissa Lewis, for her valuable comments, too. Her excellent understanding of how international environmental law works in practice refined my thinking.

 

 

 


12/03/2016

New predator sniffs out the Netherlands: golden jackal adds another chapter to its mysterious range expansion

By Arie Trouwborst (TLS)

In February 2016, Dutch researchers discovered unique footage captured by some of the automatic wildlife cameras – ‘camera traps’ – they had installed in the woods to study deer behaviour. Experts abroad confirmed the initial hunch that the animal in the pictures is a golden jackal (Canis aureus). Golden jackals are canids that howl like wolves but are as omnivorous as foxes, and in size are in between the latter two. The golden jackal is sometimes called the European coyote – and the coyote itself sometimes dubbed the American jackal. The ‘Dutch’ jackal was caught on camera in the extensive woodlands of the Veluwe area, which is part of the European Union’s protected area network Natura 2000.

Photo by Miha Krofel.

Photo by Miha Krofel.

Whereas it cannot be ruled out entirely that the jackal was released by humans or escaped from captivity, there is nothing to indicate this. The assumption, therefore, is that the animal walked into the country by itself. Indeed, the sighting concerned – however spectacular – it did not come as a complete surprise. Biologists have been documenting an impressive expansion of the golden jackal’s range in the last few decades, northward and westward from its traditional distribution in the southeast of Europe. The drivers of this expansion are not yet fully understood. Jackals have already been spotted as far north as the Baltic states and even Finland, as far west as Switzerland, and as far northwest as Denmark. Different sightings in the west of Germany in 2015 suggested it was a matter of time before the first jackal would be spotted in the low countries as well.

The recent camera trap images constitute the first confirmed record of a golden jackal in the Netherlands ever. Although it cannot be ruled out that jackals inhabited the Netherlands (very) long ago, there is no evidence to indicate they did. This makes the jackal’s visit different from the lone wolf (Canis lupus) that made a brief but exciting trip through the Netherlands last year. As discussed in a previous blog, wolves were part of the native fauna of the Netherlands until they were exterminated in the 19th century. The expected colonization of the Dutch countryside by wolves is therefore a proper comeback.

Given that the Netherlands constitute apparent terra incognita for golden jackals, the question arises how the species’ arrival should be appraised, and what government policy regarding the species would be most appropriate. This question has been faced in quite a few countries where jackals turned up beyond the species’ known historic range in recent years. In particular the question whether such animals are to be considered as an ‘alien species’ – whether invasive or not – has been a source of confusion. Such confusion is unnecessary. Widely accepted definitions agreed under international legal instruments (e.g., Convention on Biological Diversity, Bern Convention on the Conservation of European Wildlife and Natural Habitats) make it quite clear that the term ‘alien species’ only encompasses creatures originating from introductions outside their regular range by man. Jackals that have arrived on their own feet should thus not be regarded as such, and are not subject to international commitments concerning the control or eradication of invasive alien species.

The legal status of the golden jackal in the national legislation of the many countries where jackals have been recorded varies considerably. However, current international legal obligations limit the freedom of countries to decide how they wish to deal with golden jackals, including recently arriving ones. In general terms, the Bern Convention requires European states to keep jackal populations out of danger. Moreover, in EU member states like the Netherlands, the Habitats Directive imposes distinct limitations on national policy and management options regarding the golden jackal, including in scenarios where jackals are spreading to areas without historic records of their presence. The species is listed as a ‘species of Community interest’ in Annex V of the Directive. As the jackals venture across the EU, the corresponding legal regime travels along with them. For EU member states, this entails that any killing of golden jackals must be compatible with the maintenance or achievement of a favourable conservation status. To ensure this, the species must be systematically monitored. National policies preventing golden jackals from settling down and aiming for the species’ eradication are incompatible with obligations under EU law.

 Meanwhile, we can take comfort from the notion that our camera-trapped jackal is probably still out there somewhere, trotting along, sniffing for edibles and eventually a mate to settle down with, and blissfully unaware of the legal issues it is raising.

- – - x – - -

For more detailed discussion of the golden jackal’s European range expansion and the associated legal issues, see:

A. Trouwborst, M. Krofel & J.D.C. Linnell. 2015. Legal Implications of Range Expansions in a Terrestrial Carnivore: The Case of the Golden Jackal (Canis aureus) in Europe. 24 Biodiversity and Conservation 2593-2610

 


21/12/2015

The EU Regulation of Genetically Modified Organisms in 2015: at the Crossroad of History

By Ji Li (TLS)

The EU authorization of genetically modified organisms (GMOs) is the most strange and controversial area in the whole EU law system: the scientists are seriously distrusted by the general public, the authorization procedure is ‘unreasonably’ paralyzed or delayed, and the authorized GM products are banned by Member States without legitimate reason. But this is not the case in any other field of innovative technology or environmental law, and cannot be explained simply by precautionary principle or political pressure. This conundrum has puzzled the EU policy makers and lawyers for many years, and 2015 is a crucial year of fundamental reform. With the introduction of the opt-out clause, Member States now have freedom to ban GMOs without recourse to scientific evidence. Such a move may also cause negative effects concerning the EU internal market law and its obligations under the WTO law. We are now standing at the crossroad of history.

GMO is defined as “an organism, with the exception of human beings, in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination”.[1] The commercial application of GM technology in the agricultural sector can introduce many desirable traits into one single crop, thus has huge economic, health and environmental benefits. At the same time, people are also concerned about its potential environmental and health risks, as well as some ethical and socio-economic issues. Under the current EU law, both GM crops and foods/feeds must go through the authorization procedure before marketing. This involves two stages of decision-making: a scientific assessment about their safety and a political vote about their overall acceptability. However, in the past voting, because Member States were deeply divided in their opinions, there were hardly any qualified majority reached in the authorization procedure. In the end, it is always the Commission makes the decisions, which are based on the scientific reports of the European Food Safety Authority (EFSA) and usually grant the authorizations. This fact (purely science-based decisions, at least on the surface) triggers many Member States’ objections and the Council’s reactions. As a result, the authorization of GM food/feed is seriously delayed, and the authorization of GM crops is totally paralyzed, which are in violation of the EU law. But the Commission could not do anything about it because the Member States’ ‘illegal’ actions were backed by the Council.[2]

After many years’ tough negotiations and some small legal revisions, in March 2015 a fundamental legal reform called ‘opt-out clause’ was agreed by all Member States and enacted by the Commission.[3] According to this new legislation, on the issue of GMO cultivation, Member States pro- and anti-GMO are finally unleashed from the political disputes and formally part with each other. For anti-GMO countries, they can now ban GM crops even after authorization without any need of scientific evidence. This can be done either by a blanket withdrawal from all the future authorizations (without need of giving any reason) before 3 October 2015, or (after that date) by quoting some ‘compelling’ socio-economic reasons listed in the legislation in individual case. As a result, 17 out of the 28 Member States have totally opted out on all their territories in this way,[4] while 3 kingdoms of the UK (Scotland, Wales and Northern Ireland, leaving only England to be willing to cultivate GMO) and the French-speaking Wallonia region of Belgium also declared to be GMO-free.[5] For pro-GMO countries, it is expected that the paralysis in the GMO authorization can be unblocked so that more GM crops can be authorized and cultivated.

However, this move also brings about legal uncertainties and new challenges. First, it is hard to say the opt-out clause is conform to the EU internal market law. It is rather to say that it is an exception to the principle of free movement of goods based upon all Member States’ political endorsement.[6] Some Member States and MEPs also would like to opt out for GM food/feed, but such requests were firmly rejected by the European Parliament’s Environmental Committee on the grounds of protecting the EU internal market. This shows that the EU policy makers are very aware that the political exception to the internal market rule cannot be too wide. Second, the opt-out clause is also against the EU’s obligations under the WTO law, especially after the famous US-EU Biotech case in 2006. There is no way to defend in this respect, people just hope the EU will not be sued by the Unites States (and other GMO-producing countries) for two practical reasons: (1) more GM crops will be cultivated in pro-GMO countries, which will hopefully make up for their losses; (2) the import of GM crops is relatively a small part of business (compared to GM products). Third, whether the principle of proportionality is applicable in the scenario of GMOs is also a big issue. It is uncertain at this moment whether Member States’ blanket ban of GM crops (without even giving reasons) would be challenged in the EU courts. Last, the increased cultivation in pro-GMO countries and the total ban in anti-GMO states will expose the sensitive issue of cross-border coordination and the potential liability arising out of GMO ‘contamination’.

In sum, the whole EU GMO regulatory framework stands at the crossroad of history and is facing new possibilities and challenges. Instead of one unified procedure, now the EU regulation of GMOs is running on double trajectories. In the coming few years we will witness how this new approach addresses the needs and pressures from inside and outside EU.

 

[1] Article 2(2), Directive 2001/18/EC.

[2] It is illegal because these Member States do not have scientific evidence to support a prohibition or restriction to the free movement of an authorized goods in the EU internal market.

[3] Directive (EU) 2015/412.

[4] These Member States include: Austria, Bulgaria, Croatia, Cyprus, Denmark, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland and Slovennia.

[5] Reuters.com by Barbara Lewis, ‘Majority of EU Nations Seek Opt-Out from Growing GM Crops’, 2015.10.04, available online at: http://www.reuters.com/article/2015/10/04/us-eu-gmo-opt-out-idUSKCN0RY0M320151004#xu0BYp9saiqghPUK.97 (last visited on 2015.11.08).

[6] The Commission indicates that the legal basis of opt-out clause could be Article 2 TFEU, which is a new provision introduced by the Lisbon Treaty. The third sentence of Article 2 (2) TFEU reads: “the Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence”.


08/09/2015

Legal Efforts to Achieve Optimal Transboundary Population Level Management for European Large Carnivores

By Jennifer Dubrulle

Europe experiences a large carnivore comeback: the European Union hosts 12,000 grey wolves (Canis lupus), 17,000 brown bears (Ursus arctos) and 10,000 Eurasian lynx (Lynx lynx). Most of these populations (8/10 wolf populations; 8/10 for bear; 10/11 for lynx) do not live within the boundaries of one country and are shared by two or more countries.[1] It is widely accepted that conservation planning for these species should be adjusted to the biological unit of each population, rather than to international frontiers. As EU Member States provide different levels of protection for large carnivores legal fragmentation arises.[2] It becomes then increasingly difficult, taking population sink effects [3] into account, to maintain viable large carnivore populations without a neighbour’s help.

Detailed criteria for optimal transboundary population level management (TPLM) are set out in the Guidelines for Population Level Management Plans for Large Carnivores (Carnivore Guidelines).[4][5] I analyse the role of the applicable international legal framework as regards the implementation of TPLM. Key instruments are the Bern Convention on European Wildlife Conservation and the EU Habitats Directive. For two sets of large carnivore populations, the Alpine and Carpathian ones, additional legal instruments are in place, that is the Alpine and Carpathian Conventions with their Protocols on biodiversity.

The first criterion of the Carnivore Guidelines requires a shift of focus from the management of transboundary populations at the national level to the population level. The drafters of the Bern Convention and the Habitats Directive focused obligations principally at the national level. Gradually measures were taken under both instruments to overcome this potential shortcoming by respectively adopting Recommendations (Bern Convention) and guidance (Habitats Directive) calling for TPLM. These instruments are not legally binding and therefore uncertainty remains whether population management must be carried out at the population level/and or at the national level.[6] Achieving management at the population level is further complicated by the scope of the Bern Convention and the Habitats Directive. Their scope coincides with the country’s border of the Contracting Parties, respectively Member States. In other words, these countries commit each individually to only protect large carnivores present within their own borders. In contrast, the Alpine Convention and the Carpathian Convention require large carnivore management to be conducted at the population level, through a combination of legally binding provisions and non-binding guidance and the fact that the scope of these mountain regimes coincides with the biological unit (that is the Alpine and Carpathian mountain ranges), which coincides approximately with the contours of the large carnivore populations concerned. By way of explanation, the Contracting Parties of the Alpine and Carpathian Convention commit collectively to protect large carnivores wherever present throughout the mountain range, going beyond strict adherence to country borders.

A second criterion requires the operationalization of TPLM through the development of management plans at the population level. The commitments to draw up TPLM plans enshrined in the Bern Convention’s Recommendations are not legally binding. Whereas the Habitats Directive guidance requires TPLM plans to be drawn up this obligation is not binding either. It cannot be considered an obligation of result as a Member State cannot be held responsible for the failure to develop a management plan if one (or more) of its neighbours does not agree to develop such a plan. It is solely an obligation of effort.[7]Conversely, for Contracting Parties of the mountain regimes stronger commitments apply regarding the development of transboundary management plans.

Legal fragmentation under the Bern Convention and Habitats directive

Legal fragmentation under the Bern Convention and Habitats directive

A third criterion of the Carnivore Guidelines requires that best management practices are developed and applied. The four international and European legal instruments under discussion set up structures to ensure actual implementation of TPLM. The Bern Convention’s Group of Experts on the Conservation of Large Carnivores in Europe facilitates TPLM by monitoring Contracting Parties’ implementation of this obligation. The 2014 terms of reference of the EU Platform on Coexistence between People and Large Carnivores provide that the Platform facilitates TPLM and the implementation of the LIFE program, although this program so far [8] primarily attacks threats at a local scale, contributes to the population’s viability too. Under the mountain regimes significant progress has been made towards achieving common monitoring and management measures for large carnivores throughout the mountain ranges. The Carpathian Working Group on Conservation and Sustainable Use of Biological and Landscape Diversity develops common monitoring standards and BioREGIO Carpathians developed common management measures in transboundary pilot areas. The Alpine Working Group Large Carnivores, Wild Ungulates and Society Platform develops common monitoring standards and is expected to propose common management standards for the Alpine region by 2016.

In the end, even if full-fledged transboundary population level management has not yet been achieved for any population (no transboundary management plans have been adopted yet for Europe’s large carnivore populations)[9] the two mountain regimes have distinct features that make them better equipped for achieving actual implementation of TPLM than the Bern Convention and Habitats Directive.

This blog post is the result of discussions at the Environmental Law Lunch of June 8 @ Tilburg University and a poster presentation [8MB PDF] at the International Congress for Conservation Biology and European Congress for Conservation Biology (3-7 August 2015, Montpellier).


[1] G. Chapron et al, Recovery of large carnivores in Europe’s modern human-dominated landscapes, Science 346, 2014, 1517-1519.

[2] E.g. while a wolf is strictly protected in the Czech Republic (Habitats Directive Annex IV) it is culled in neighbouring Slovakia (Habitats Directive Annex V).

[3] The theory of source-sink dynamics applied to large carnivores in a transboundary context goes as follows: a source subpopulation in country B, where reproduction exceeds mortality, becomes a sink subpopulation because of intensive culling, where reproduction fails to compensate for mortality. This sink subpopulation can then no longer subsidize another sink population (for instance, because of low habitat quality) in country A causing the decline of the metapopulation; Carnivore Guidelines, 19, fn 10; R.W. Howe and G.J. Davis, The demographic significance of ‘sink’ populations, Biological Conservation, 57, 1991, 239.

[4]J.D.C. Linnell, V. Salvatori and L. Boitani, Guidelines for Population Level Management Plans for Large Carnivores in Europe, European Commission, Brussels, 2008,  http://ec.europa.eu/environment/nature/conservation/species/
carnivores/pdf/guidelines_for_population_level_management.pdf
.

[5] One of the criteria that is ‘operationalizing favorable conservation status for large carnivores’ is not discussed here. This criterion goes deep into science, Carnivore Guidelines, 14-25. The interdisciplinary research project Claws & Laws of the Department of Ecology of the Swedish University of Agricultural Sciences and the Faculty of Law of Uppsala University aims to clarify the concept of Favourable Conservation Status by linking law and ecology (the project runs from January 2014 to December 2016), http://www.clawsandlaws.eu/.

[6] A. Trouwborst, Living with Success – and with Wolves: Addressing the Legal Issues Raised by the Unexpected Homecoming of a Controversial Carnivore, European Energy and Environmental Law Review, 23(3), 2014, 96-97.

[7] A. Trouwborst, Living with Success – and with Wolves: Addressing the Legal Issues Raised by the Unexpected Homecoming of a Controversial Carnivore, European Energy and Environmental Law Review, 23(3), 2014, 100.

[8] The publication ‘LIFE and human coexistence with large carnivores’ by J.P. Silva et al, 2013 provides its time for LIFE to move from the local to the population level, 68-69, http://ec.europa.eu/environment/nature/conservation/species/carnivores/
pdf/life_and_human_coexistence_with_large_carnivores.pdf
.

[9] J.C. Blanco, Towards a population level approach for the management of large carnivores in Europe. Challenges and opportunities, European Commission, Brussels, 2013, http://ec.europa.eu/environment/nature/conservation/species/carnivores/
pdf/task_3_transboundary_coop.pdf
, 5.

Category: Europe, Wildlife

25/06/2015

Spectacular judgment by Dutch Court in climate change case

By Jonathan Verschuuren (TLS)

Court orders State to achieve reduction target of 25% in 2020

Palace of Justice, The Hague (photo by Flickr user Elvin)

Palace of Justice, The Hague (photo by Flickr user Elvin)

In an unprecedented and unexpected decision, a Dutch court found that the Netherlands government has acted negligently and therefore unlawfully towards Urgenda by implementing a policy aimed at achieving a reduction for 2020 of less than 25% compared to the year 1990. The court had to overcome many obstacles to reach this decision, such as the obstacle of causation (from a global perspective, the Netherlands has a relatively small contribution to climate change, so how can the Dutch State by liable for climate change damage suffered by individual Dutch citizens?) and the obstacle of the principle of separation of powers, which does not allow courts to move into politics (setting mitigation targets is usually considered to be a policy matter, of which courts should remain clear). In other countries, particularly the United States, where many climate change suits have been decided or are ongoing, these two obstacles present the main reason why most climate change cases went nowhere, so far…

In its decision of June 24th, 2015, which was rightfully translated in English as international interest in the judgment will be massive, the Court orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990. How did the Court reach this decision, and, more importantly, how did it overcome the two obstacles mentioned above?

The case was initiated by Urgenda, a foundation that was established in 2008 with the aim to stimulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands, by, among other things, legal action. More than 800 individual citizens joined the suit, so the case was lodged by Urgenda acting on its own behalf as well as in its capacity as representative of these individuals. Under Dutch tort law, NGOs are allowed to initiate public interest cases (see extensively Berthy van den Broek, Liesbeth Enneking, Public Interest Litigation in the Netherlands. A Multidimensional Take on the Promotion of Environmental Interests by Private Parties through the Courts, 2014 Utrecht Law Review 10:3). On standing, the Court not only finds that Urgenda is allowed to represent current generations, but also future generations, because the foundation is aimed at achieving a sustainable development (see judgment under 4.6-4.8). This makes this case a landmark case for the debate on intergenerational equity as well.

The question that the court had to address is whether the State acts unlawfully by “only” pursuing the reduction targets that were imposed upon the Netherlands by EU-law for 2020: a 21% reduction for sectors covered by the EU Emissions Trading Scheme (basically large industry and power stations), and a 16% reduction for non-EU ETS sectors (such as transport and agriculture). Under Dutch tort law, there are two ways in which unlawful action or inaction can be established: actions contrary to legal norms, or actions that are not contrary to written legal norms, but that are considered to be violating the standard of due care. First, the Court finds that the state did not breach its legal obligations under a range of legal instruments, such as the UNFCCC, Kyoto Protocol, various EU climate change instruments, the European Convention of Human Rights, etc.

Then, however, the Court tests whether the State fulfilled its duty of care towards its citizens. This is where the case becomes really interesting, because in order to establish what exactly, in this case, this duty of care entails, the Court relies on a large number of binding and non-binding rules and principles (such as the precautionary principle and the principle of ‘fairness’), policy statements, and even ‘scientific consensus’, to determine what can be expected of the State. The Court then finds: ‘Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures. The circumstance that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this. (…) It is an established fact that with the current emission reduction policy (…) the State does not meet the standard which according to the latest scientific knowledge and in the international climate policy is required for Annex I countries to meet the 2°C target.’

How did the Court overcome the two obstacles mentioned above: causation and separation of powers?

On causation, the Court uses earlier case law on joint liability: the fact that one actor’s contribution to damage is minor, does not allow courts to reject liability. On the contrary, this actor can, under certain circumstances, be hold liable for the entire damage by those who suffer the damage. It is then up to the targeted tortfeasor to reclaim part of these costs from the other tortfeasors. After having referred to this jurisprudence, the Court states: ‘The fact that the amount of the Dutch emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change.’ Interestingly, the Court follows the principle of common-but-differentiated responsibilities that is one of the main principles of the UNFCCC to argue that it is only fair that the Netherlands takes a proactive approach when it comes to mitigation: ‘Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.’ The Court then concludes:

From the above considerations (…) it follows that a sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emission contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions have contributed to climate change and by their nature will also continue to contribute to climate change.

The Court spends a good deal of considerations on the separation of powers. It apparently is very conscious of the fact that it is encroaching upon the realm of policy-making.  The government defended its policy by stating that it is working towards remaining within the 2 degrees limit. To achieve this, bigger emission cuts would be required in 2030. It was a policy decision, backed up by a majority in Parliament, to stall emission cuts a bit (also with a view to the economic crisis), and to speed up emission reductions later. According to the government, this is a legitimate political decision that should not be reviewed by courts.

The Court, however, takes a firm position in the separation of powers debate: ‘It is worthwhile noting that a judge, although not elected and therefore has no democratic legitimacy, has democratic legitimacy in another – but vital – respect. His authority and ensuing “power” are based on democratically established legislation, whether national or international, which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities. The task of providing legal protection from government authorities, such as the State, pre-eminently belong to the domain of a judge. This task is also enshrined in legislation.’ According to the Court, this is exactly what the claim asks of them: provide legal protection against negligence on the part of the State. The Court acknowledges that by granting judicial review in this case, it will moving into the policy arena: ‘This does not mean that allowing one or more components of the claim can also have political consequences and in that respect can affect political decision-making. However, this is inherent in the role of the court with respect to government authorities in a state under the rule of law. The possibility – and in this case even certainty – that the issue is also and mainly the subject of political decision-making is no reason for curbing the judge in his task and authority to settle disputes. Whether or not there is a “political support base” for the outcome is not relevant in the court’s decision-making process.’

This is a firm statement indeed! The Court does acknowledge that there has to remain room for political decision-making, hence they only set the minimum reduction target of 25% reduction, without imposing the measures that need to be taken to achieve this target, nor preventing (future) decision-makers to go beyond this target. Why 25%? The court bases this decision upon scientific data, but also upon previous policy statements by Dutch authorities and upon the statement in court that a 25% emission cut in itself would not be entirely impossible to achieve. The Court rejects the policy decision to stall the reduction speed until 2030, by arguing that this approach ‘will cause a cumulation effect, which will result in higher levels of CO2 in the atmosphere in comparison to a more even procentual or linear decrease of emissions starting today. A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by the State. The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at realising the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25-40% in 2020.’

There are many very important elements in this judgement that warrant further discussion and research. It is clear that the Dutch Court provided a break-through in climate change litigation, at least in the Netherlands. We have to wait and see whether this approach is copied by courts in other countries, and, first, whether this spectacular decision survives appeal. The Dutch government did not yet indicate whether it will appeal the judgement. It currently ‘studies’ the decision.

 

Update: Subsequent to the writing of this blogpost, the government of the Netherlands indeed appealed the Urgenda case. On 9 October 2018, the Higher Court in The Hague rejected all objections by the State. An explanation of this second sensational judgment is available here.   


26/05/2015

Enforcement of the EU ETS in the Member States: Further improvements needed

By Jonathan Verschuuren (TLS)

Although the EU Emissions Trading Scheme (EU ETS) has been operating now in three trading phases for ten years and has been extensively covered by legal research, there has been remarkably little attention for the enforcement of the ETS. Although, generally, we have seen an increasing centralization of the EU ETS, monitoring and enforcement still are largely in the hands of the emissions authorities in the states in which the EU ETS operates: 28 EU Member States plus Norway, Liechtenstein and Iceland. As part of the EU funded FP7-project ENTRACTE (Economic iNsTRuments to Achieve Climate Targets in Europe), we did an ex-post evaluation of the legal implementation of the EU ETS at Member State level with a focus on compliance. We wanted to know whether the effectiveness of the compliance mechanism of the EU ETS has been improved over the years and what further improvements (if any) are necessary. We reviewed the relevant EU law in each of the three phases, reviewed previous evaluations and relevant research projects, and evaluated the implementation of the EU ETS in selected Member States, both through existing sources and through interviews with key players in the compliance mechanism at Member State level. The Member States that we studied were Germany, the Netherlands, Hungary, Greece, Poland and the UK.

The EU ETS is the largest trading program in the world designed to combat global climate change.  The theory behind emissions trading is that a market mechanism is established in order to mitigate greenhouse gasses. After a cap is set and potential polluting firms have obtained allowances to emit, they can either (1) reduce their emissions and sell their allowances by for example investing in technological innovation; (2) use their allowances in order to cover their emissions; or, (3) increase their emissions by buying additional allowances on the market. The crucial importance of a well-developed and operationalized compliance chain has been neglected in the original design. In fact, a striking paradox of the EU ETS is that while the idea is that the market should be the place to regulate greenhouse gas (hereafter: GHG) emissions, the system only functions if it operates in a highly regulated context. Market participants must have the confidence that the system is transparent and consistent, and that it guarantees a level playing field for all actors in the 31 participating States because every firm complies with the rules. Effective enforcement of the rules is, therefore, crucial.

The EU ETS legislation originally left a considerable amount of discretion to Member States. This particularly included operational elements of emission trading, such as registration, monitoring, verification, reporting and enforcement issues. Only after European law enforcement agencies signalled that in some European countries carbon trading fraudsters may have accounted for up to 90% of all market activity, with criminals pocketing billions, the compliance issue received increased attention. Moreover, different strategies for ensuring compliance among Member States give rise to distortions of the market for greenhouse gas allowances. The effectiveness and reliability of the ETS, therefore, to a significant extent depends on the effort of each of the Member States. Lack of compliance of only a few or even a single Member State can harm the functioning of the ETS in the entire EU.

We, as well as other researchers in the consortium (see the London School of Economic’ report on compliance), found that compliance with the EU ETS is high.  Most infringements are caused by genuine mistakes and lack of knowledge, not by deliberate actions to evade obligations. The majority of offences concerns the operation of an installation without holding the required permit, exceeding the deadline for submitting the emission report or not monitoring in accordance with the monitoring plan. It is also believed that the verification process pays off: many mistakes are discovered by private verifiers and subsequently rectified. Since prices of allowances have been very low, the majority of allowances are surrendered and not traded. Hence, the EU ETS has not been tested to the full yet, and it remains to be seen whether compliance will be as high in a market under stress (with high prices due to limited availability of allowances).

There are many indications that current enforcement activities will not suffice in a market under stress, although there a big variations among countries. The number of staff employed in the national emissions authorities, for example, differs enormously, ranging from 4 to 5 in Greece and Hungary to 150 in Germany, 40-50 of whom are devoted to inspecting compliance by installations, i.e., checking emission reports, monitoring reports etc. No need to explain what this means for effective enforcement. The biggest loophole that we found in our evaluation is the absence of site visits. Site visits are not yet part of the standard enforcement strategy of most Member States we studied. Only the UK and the Netherlands have a well-developed blueprint for conducting regular site visits on the basis of a risk assessment. There is a considerable risk that non-compliant behaviour will remain undetected when inspectors rely on data provided by the “paper work” that goes with the EU ETS in its  automated system. In the UK, the competent authority regularly conducts site visits as part of its enforcement strategy; 5% of the operators are audited each year. Operators receive notice of these audits since their purpose is more to check than to inspect, although formally the regulator could use its power of entry to perform an unannounced inspection. Regulators in England and Wales have developed a common format for reporting the results of site visits, which are entered into an electronic database. The details include a summary of the visit, any instances of non-compliance detected follow-up actions that have been agreed with the operator.  The findings of the site visit may also be shared with other government bodies. Non-compliance is explicitly recorded to create a database of historical performance for future reference. Follow-up varies from a phone call or a visit to slightly more invasive forms such as a warning. By comparison, in Germany inspection was until 2013 mainly an administrative process done behind the desk at the emissions authority.  This is true for most of the EU Member States. Germany has very recently changed its policy and now officers of the ETS authority do joint inspections together with officers responsible for the enforcement of regular environmental permits, thus benefiting from the experience and knowledge on past performance of the individual company that the latter usually has.

There is not enough space here to cover all the elements of the enforcement system in the Member States that can be improved. Overall, we concluded that Member States can learn a lot from each other’s attempts to close loopholes and fix weak spots in the compliance mechanism. Overall, more efforts should be undertaken to harmonize enforcement practices of the national competent authorities responsible for the enforcement of the EU ETS. This is not easily achieved. Our research clearly shows that compliance assistance is regarded as the most important element of the compliance cycle of the EU ETS: helping companies to apply with this complex regulatory instrument. Such compliance assistance is best offered at the national level in the national context. In addition, we think that the EU, with the extensive legislative framework for the EU ETS that was developed over the years, has exhausted its legislative powers in this area. Therefore, other forms of harmonization (e.g., network based peer review) need to be explored.


26/04/2015

Monitoring and conservation of large carnivores in Europe

By Jennifer Dubrulle

Jennifer Dubrulle, junior member of the Ius Carnivoris project, a Tilburg University research project on the role of law in conserving and restoring wolves, bears and other European large carnivores, participated in a Large Carnivore Monitoring project in the Beskedy mountains in Slovakia. The project aims to track large carnivores and accurately map their presence in numbers. It is essential to correctly estimate the population numbers as hunting quotas are based on these estimations. Overestimations mean higher quotas, more carnivores shot, which might endanger the population’s viability. Underestimations mean lower quotas, less carnivores shot, which might negatively impact economic/recreational interests of hunters.

Lynx caught on camera

Lynx caught on camera

The high of our trip was the capture of a (well-known to be shy) lynx on our camera trap. We also were lucky enough to see quite some fresh tracks of bears, wolves, lynx, fox and hazel grouse and see wild animals (wood mouse, three-toed woodpecker), their remains (roe deer prey) and scats (wolves and lynx). All of this is well-documented in the photo-album .

The low of the trip was feeling the reality of living where large carnivores live. Shy from human presence, they often live in remote, difficult accessible, areas. The transformation from a domesticated office cat to a wild lynx was physically challenging.

Category: Europe, Wildlife

26/06/2014

Shale gas: Increasing intervention by local authorities

By Jonathan Verschuuren (TLS)

In most countries, unconventional gas production (as is the case with most natural resources) is of national interest. The production of shale gas, tight gas and coal seam gas through hydraulic fracturing is considered an important source of revenue and an important element in the nation’s energy policy. The big national interests at stake with unconventional gas production put local governments under pressure. Local governments usually are concerned with protecting the local environment for the benefit of present and future generations. Often, these concerns have a legal basis, either in the constitution, in the public trust doctrine, or in domestic legislation in the field of land use and planning and/or environmental protection.

In several shale gas rich countries around the world, we see attempts by local governments to challenge hydraulic fracturing (fracking) using various legal pathways. Examples are popping up everywhere, now almost on a monthly basis. In the US, in December 2013, the Pennsylvania Supreme Court declared an Act that sought to eliminate zoning authority from municipalities over shale gas extraction, unconstitutional because it infringes the municipalities’ duty under the state’s constitution (Environmental Rights Amendment), to act as a trustee of natural resources. In 2014, the shale gas richest province in the south of the Netherlands and several of the municipalities in this province, banned exploration and production of shale gas altogether, using various legal instruments in the field of environmental law and land use planning law.

Although local authorities do not have competences in the field of mining law, they do have responsibilities and associated powers under planning law. Local zoning and planning is always done at the local level, and hence, municipal authorities may set restrictions or conditions to any new activity so as to fit in this activity within the existing land use. These powers can be very far-reaching, even rendering the use of a production permission entirely impossible. Should, for instance, a local zoning plan prohibit mining activities at a certain location, or prohibit the issuing of a construction license to mining constructions on that location, then no mining can take place there, even after the competent authority for the mining operations granted all necessary permits.

Both in the Netherlands and the United States, however, central governments have legislated in order to have the regulatory tools to intervene in local decision-making when needed to ascertain that mining activities go ahead. In the case of shale gas, local governments and local communities increasingly pursue legal pathways to block or at least hinder shale gas operations. In the example of Pennsylvania, the state authorities used their legislative power to overrule local decision-making. Courts, however, seem to be willing to limit or even block such intervention because it infringes on the constitutional right to a clean environment and the public trust doctrine, also laid down in the constitution, according to which governments have to protect the environment for present and future generations.

In the Netherlands, instruments to overrule local decision-making in the field of environmental protection and spatial planning are in place, but have not been applied yet. The debate on the constitutionality of such intervention has not arisen yet. Should intervention take place, it is likely to be argued that this is unconstitutional, not just because of the alleged infringement of the right to a healthy environment (somewhat similar to Pennsylvania, laid down in the Dutch constitution in the form of a basic duty for the government), but also because of the principle of decentralized governance that forms the basis of the Dutch public governance system. It remains to be seen whether such reasoning is going to be successful, as the Netherlands does not have constitutional courts, nor the possibility to have legislative acts of the national legislature tested against the constitution. Even without these opportunities, however, it is clear that Parliament will scrutinize any attempt by the Cabinet to overrule local rules and regulations as this will be considered to undermine future collaborations with local authorities on which the central government in almost every policy field depends for the execution of their policies. In a previous attempt in the Netherlands, to impose national decision-making upon an unwilling municipality (the selection of a location for an onshore carbon capture and storage demonstration project), huge public uprising occurred, ultimately leading to the abandonment of the project.

Shale gas in Europe. Image via The Economist.

Shale gas in Europe. Image via The Economist.

In Germany and France, by contrast, public protests, mainly at a local level, have strongly influenced decision-making at the national level, more or less by-passing local governments. This probably is due to the fact that in these countries, local authorities have little power to stop or regulate shale gas exploration and production. Hence, protesters –with much success– aimed at national political institutions rather than at local authorities. In France, opposition was especially fierce because of the lack of public consultation. Both countries imposed a moratorium on the exploration and production of shale gas through hydrofracking with the use of chemicals.

The above brief assessment of the role of local governments in the hydrofracking debate shows that the local level plays an important role indeed. Simply ignoring or legislating local governments and local communities out of the picture will be counterproductive, as the local level has legal and political cards to play out, and, constitutionally, perhaps even has to play out these legal cards to protect the environment for present and future generations. It seems, therefore, that local communities determine the success of unconventional gas development and should be taken seriously by central governments that plan to support hydrofracking. Transparency and meaningful involvement of local communities should be pursued, allowing for any kind of outcome, including the outcome of a moratorium or ban. It can be expected that at the EU level, where legislation is currently being prepared, focus will be on such important procedural issues.

Category: Energy, Europe, Shale gas

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