Distributional Choices in EU Climate Change Law and Policy

Name: Distributional Choices in EU Climate Change Law and Policy | Towards a Principled Approach?
Brand: Kluwer Law International
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Towards a Principled Approach?

Javier de Cendra de Larragán(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 26. November 2010

568 Seiten

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Beschreibung

Climate change policy inevitably has two core components: the goals, and the means chosen to pursue those goals. Decisions on goals and means necessarily have distributional consequences. Any policy choice generates winners and losers. While this outcome cannot be avoided - even doing nothing leads to distributional consequences - policymakers can, through the choice, design and implementation of policies, shape to some extent the distribution of the burdens of mitigation and adaptation to climate change. In greater depth than any previous legal study in the field, this book deals with the way in which the European Union (EU) has dealt with climate change and with the distribution of the benefits and costs of climate change mitigation policies among affected parties. With extraordinary thoroughness the author assesses the legality of choices made (particularly concerning mitigation targets and timelines), and examines the role that legal principles can play in the adoption, interpretation, and judicial testing of distributional choices. His analysis of the tension between such choices and EU law is bolstered by an exploration of emerging legal principles which could provide additional guidance in this challenging and controversial area. Among the core issues dealt with are the following: relationship among mitigation, adaptation, and sustainable development; regulations as means to make distributional choices distributional choices between generations and the principle of intergenerational justice distributional choices concerning firms and individuals the participation of affected parties in distributional choices access to justice in EU courts to challenge violations of procedural environmental rights the role of legal principles in making, evaluating and testing distributional choices the principle of proportionality with its tests of appropriateness and necessity; the principle of equality; the precautionary principle; the principle of prevention; the polluter pays principle; A concluding chapter offers deeply informed recommendations regarding the design of EU climate change law, including a preliminary assessment of EU wide personal carbon trading. In its insightful illumination of how the inevitable trade-offs, weaknesses, inconsistencies and ambiguities in the way law deals with distributional choices renders them vulnerable to external pressures, this book will be of enormous value to regulators and policymakers concerned with effective, efficient, and fair climate change measures. As a critical assessment of existing EU climate change laws and policies, and as a systematic analysis of the problem of burden sharing, this book will also prove highly valuable to academics in environmental fields of study.

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Inhalt

Intro
Title Page
Copyright Page
Dedication
Table of Contents
List of Abbreviations
Chapter 1 General Introduction
1 Introduction
2 Distributional Choices in Climate Change Policy
2.1 A Provisional Definition of Distributional Choices in the Context of Climate Change Policy
2.2 Varieties of Distributional Choices in Climate Change Policy
3 The Relationship between Distributional Choices, Law and Legal Principles
4 Justification for Undertaking This Research
5 A Focus on EU Law
6 Main Research Questions
7 Methodology and Structure
Chapter 2 Climate Change, Climate Change Policy and Distributional Choices
1 Introduction
2 An Overview of the Climate Change Problem: Causes, Impacts and Responses
2.1 Definition of Climate Change
2.2 Causes of Climate Change
2.3 Impacts of Climate Change
2.3.1 Impacts of Climate Change on Sectors
2.3.2 Impacts across Regions
2.3.3 Estimated Benefits and Costs of Impacts from Climate Change and Their Distribution
2.4 Responses to Climate Change
2.4.1 Adaptation
2.4.2 Mitigation
2.4.3 Relationship between Mitigation, Adaptation and Sustainable Development
2.4.4 Interim Conclusions
3 The Policy-Relevant Characteristics of Climate Change Policy
3.1 Climate Change and Uncertainty
3.2 The Problem of Irreversibility
3.3 Climate Change Is a Long-Term Problem
3.4 Climate Protection Is a Global Public Good
3.5 Climate Change Is Mainly Caused by the Use of Fossil Fuels
3.6 Climate Change Is Closely Linked to Considerations of Equity
3.6.1 Varieties of Justice
3.6.2 Criteria of Justice
3.7 Main Barriers for the Adoption of Effective Mitigation Policies
3.8 Interim Conclusions
4 The Institutions Involved in Designing and Implementing Climate Change Policy
5 Setting the Goals of Climate Change Policy
5.1 Fixing the Goals
5.2 Rationales for the Adoption of Specific Goals
5.2.1 Science-Based Considerations
5.2.2 Economic Considerations
5.2.3 Political Considerations
5.2.4 Ethical Considerations
5.2.5 Interim Observations
6 Burden Sharing in Climate Change (Mitigation) Policy
6.1 Criteria for Burden Sharing Proposed in the Literature
6.2 Lessons Stemming from an Analysis of Specific Proposals for Burden Sharing Put Forward in the Literature
6.3 Extension of the Problem of Burden Sharing in Mitigation Policy
7 Instruments of Climate Change (Mitigation) Policy
7.1 Choice of Instruments
7.2 The Need for Instrument Mixes
7.3 Evaluating Interactions between Instruments
7.4 Distributional Impacts of Instruments
7.5 Links between Policy Areas
7.6 Interim Conclusions
8 Conclusions and a Definition of Distributional Choices in Climate Change Policy
Chapter 3 Law, Legal Principles and Distributional Choices
1 Introduction
2 Some Methodological Clarifications Regarding the Concept of Law Underlying This Book
2.1 Concepts of Law
2.2 Law as Order
2.3 Law as the Command of the Sovereign
2.4 Law as a Just Proportion in the Distribution of Benefits and Burdens
2.5 The Concept of Law Guiding the Research
3 Law as Justice
3.1 Law as a Rational Ordinance
3.1.1 Rationality and the Policymaker
3.1.1.1 Constitutionalist v. Legalism
3.1.1.2 Conclusion
3.1.2 The Principle of Proportionality as a Tool to Assess Teleological Rationality
3.1.2.1 The First Dimension of the Principle of Proportionality: The Test Of Appropriateness
3.1.2.2 The Second Dimension of the Test of Proportionality: Test of Necessity
3.1.2.3 The Third Dimension of the Test of Proportionality: Proportionality Stricto Sensu
3.2 Law as a Rational Ordinance for the Common Good
3.2.1 The Rise and Demise of the Common Good
3.2.2 The Environment, Climate Change and the Common Good
3.2.3 Limits to the Scope of the Common Good?
3.2.3.1 The Common Good and Cosmopolitan Justice
3.2.3.2 Intergenerational Justice
3.2.3.3 Relevance of Theories of Intergenerational Justice for Law
3.2.4 Proportionality in the Distribution of Burdens and Benefits by Law
3.3 Law as a Rational Ordinance for the Common Good Issued by the Legislator
3.4 The Role of the Judiciary
4 Notion and Functions of Legal Principles
4.1 The Notion of Legal Principle
4.2 Functions of legal Principles
4.2.1 Legal Principles Guiding the Policymaker
4.2.2 Legal Principles Guiding the Courts
5 The Analytical Framework Based on Legal Principles to Describe, Analyse and Prescribe Distributional Choices and Its Application to EU Climate Change Law
6 Conclusions
Chapter 4 Legal Principles of EU Law Relevant for Describing, Assessing and Testing Distributional Choices in Climate Change Law and Policy
1 Introduction
2 The Analysis of Legal Principles in EU Law
2.1 Introduction
2.2 The Particular Importance of Legal Principles in EU Law
2.3 Types of Legal Principles in EU Law
2.4 Legal Principles in the Hierarchy of EU Rules
2.5 Roles of Legal Principles in EU Law
2.5.1 Roles of Constitutional Principles
2.5.2 In the Law-Making Process
2.5.3 In Adjudication
2.5.3.1 Gap-Filling Function
2.5.3.2 Legal Principles as Aid for Interpretation.
2.5.3.3 Legal Principles as Grounds for Interpretation and Review
2.5.4 Levels at Which Principles May be Relied upon by Applicants
3 Law as a Search for a Proportion between Ends and Means
3.1 The Test of Appropriateness
3.1.1 The Test of Intensity
3.1.2 The Test of Quality
3.1.2.1 The Principle of Sustainable Development
3.1.2.1.1 The Concept and Dimensions of Sustainable Development
3.1.2.1.2 The Legal Significance of Sustainable Development in EC Law
3.1.2.2 The Principle of Integration
3.1.2.2.1 Integration and Climate Change
3.1.2.2.2 The Principle of Integration in EC Law
3.1.2.2.3 The Relation between Integration and Other Relevant Legal Principles in the Context of Distributional Choices in Climate Change Law and Policy
3.1.2.3 The Precautionary Principle
3.1.2.3.1 The Precautionary Principle, Climate Change and Future Generations
3.1.2.3.2 The Precautionary Principle and Future Generations
3.1.2.3.3 The Precautionary Principle, Intergenerational Equity and the UNFCCC
3.1.2.3.4 The Precautionary Principle in EC Law
3.1.2.4 The Principle of Prevention
3.1.2.4.1 Prevention and Climate Change
3.1.2.4.2 Prevention in EC Law
3.1.2.5 The Polluter Pays Principle
3.1.2.5.1 The Polluter Pays Principle and Distributional Choices in Climate Change Policy
3.1.2.5.2 The Polluter Pays Principle in EU Law
3.1.2.5.3 The Polluter Pays Principle and State Aid
3.1.2.5.4 The Polluter Pays Principle as a Criterion to Distribute Costs between Polluters
3.1.2.6 The Principle of Rectification at Source
3.1.3 The Test of Probability
3.1.3.1 The Principle of Legal Certainty
3.1.3.2 The Principle of Legitimate Expectations.
3.2 The Test of Necessity
3.2.1 The Principle of Conferral (or Attribution)
3.2.2 The Principle of Subsidiarity
3.2.2.1 The Protocol on the Principles of Subsidiarity and Proportionality
3.2.2.2 The Practice of the Commission
3.2.2.3 Subsidiarity in the Legal Literature
3.2.2.4 Subsidiarity in Law and Economics Literature
3.2.3 Efficiency, Cost-Effectiveness and Climate Change Policy
3.2.3.1 In Relation to Climate Change Law and Policy
3.2.3.2 Efficiency, Cost-Effectiveness and Equity in EC law. The Increasing Use of Integrated Impact Assessments
4 Law as a Search for a Proportion in the Distribution of Benefits and Burdens
4.1 The Principle of Proportionality in the Distribution between States
4.1.1 The Principle of Intergenerational Equity
4.1.1.1 The Principle of Intergenerational Equity in International Law
4.1.1.2 The Principle of Intergenerational Equity in EU Law
4.1.1.3 The Principle of Intergenerational Equity in the Academic Literature
4.1.1.4 Avenues to Effectively Implement the Doctrine of Intergenerational Equity in Domestic Law
4.1.2 The Principle of Common but Differentiated Responsibilities
4.1.2.1 Common but Differentiated Responsibilities in International Law
4.1.2.2 The Principle of Common but Differentiated Responsibilities and the Principle of Solidarity
4.1.2.3 Common but Differentiated Responsibilities in EU Law
4.1.3 The Principle of Solidarity
4.1.4 The Principle of Loyal Cooperation
4.2 Proportionality in the Distribution of Burdens between Firms and Individuals
4.2.1 The Principle of Proportionality in the Distribution of the Burdens
4.2.1.1 Solidarity among EU Citizens
4.2.1.2 Proportionality in the EU Law-Making Process
4.2.1.3 Proportionality in the Case Law of the EU Courts
4.2.1.3.1 The Principle of Proportionality in Case Law
4.2.1.3.2 Proportionality, Fundamental Rights and Fundamental Freedoms
4.2.1.3.3 Proportionality in Burden Sharing in the Case Law of the ECJ
4.2.2 The Principle of Equal Treatment
4.2.2.1 The Principle of Equality and European Courts
4.2.2.2 The Test of Equality
4.2.2.3 The Intensity of Review
4.2.2.3.1 The Right of the EU to Legislate Step-by-Step
4.2.2.3.2 The Discretion of EU Institutions
5 Law as a Search for a Proportion in the Participation of Affected Parties
5.1 Within the EU
5.1.1 Public Participation
5.1.1.1 Public Participation and Distributional Choices
5.1.1.2 Public Participation in EU Law
5.1.2 Access to Justice in EU Courts to Challenge Violation of Procedural Environmental Rights
5.1.3 Principles of Environmental Justice in EU Law
5.1.3.1 Introduction
5.1.3.2 Environmental Justice in the EU
5.2 Procedural Justice beyond the EU
6 Conclusions
Chapter 5 The EU Approach to International Burden Sharing: An Analysis from the Perspective of Legal Principles
1 Introduction
2 The EU Position in the International Climate Negotiations Pursuant to the Kyoto Protocol
2.1 The EU Approach to Mitigation
2.2 The EU Position towards Financing Adaptation in Third Countries
2.3 Interim Observations
3 The EU Position in the International Negotiations for a Post-2012 Climate Change Regime
3.1 The International Negotiation Process on Burden Sharing
3.2 The Position of the EU in the International Negotiations
3.2.1 The Position of the EU Regarding the Long-Term Target
3.2.2 The Position of the EU Regarding Burden Sharing in the International Negotiations
3.2.2.1 Burden Sharing in Mitigation among Developed Countries
3.2.2.2 Burden Sharing among Developing Countries
3.2.2.3 The EU Position towards Other Elements Related to Burden Sharing in Mitigation
3.2.2.3.1 The CDM and Sectoral Agreements
3.2.2.3.2 Land Use, Land Use Change and Forestry
3.2.2.3.3 Reduced Emissions from Deforestation and Forest Degradation and Conservation
3.2.2.3.4 Biofuels
3.2.2.4 The EU Position towards Adaptation
3.2.2.5 The EU Position towards Financing Climate Change Policies in Developing Countries
3.3 Interim Conclusions
3.4 Copenhagen and Beyond
4 An Exploration of the EU Position on Burden Sharing from the Perspective of the Meta-principle of Proportionality
4.1 A Proportion between Means and Ends
4.1.1 Appropriateness
4.1.1.1 The Intensity
4.1.1.2 The Quality
4.1.1.2.1 Sustainable Development
4.1.1.2.2 Integration
4.1.1.2.3 The Polluter Pays Principle
4.1.1.2.4 The Principle of Rectification at Source
4.1.1.3 The Probability of Achieving the End
4.1.1.3.1 The Test of Probability and Long-Term Targets
4.1.1.3.2 The Test of Probability and the EU Post-2012 Strategy
4.1.2 The Necessity of the EU Approach to Burden Sharing
4.1.2.1 The Test of Necessity
4.1.2.2 The Principles of Attribution and Subsidiarity
4.1.2.2.1 Attribution and the EU Position at the International Level
4.1.2.2.2 Subsidiarity and the Long-Term Target
4.1.2.2.3 Subsidiarity and the Position of the EU in Burden Sharing
4.2 A Proportion in the Distribution
4.2.1 The Principle of Intergenerational Equity and EU Climate Change Mitigation Law
4.2.2 The Principle of Common but Differentiated Responsibilities and the Position of the EU in the International Climate Change Negotiations Law
5 Conclusions
Chapter 6 Effort Sharing between Member States in EU Climate Change Law and Policy: An Analysis from the Perspective of Legal Principles 295
1 Introduction
2 The First Burden-Sharing Agreement
3 The Transition from the First EU BSA to the Commission's Proposal on a New EU BSA
4 The Second Burden-Sharing Agreement
5 A Comparison between the First and Second BSA
6 Analysis from the Perspective of the Meta-principle of Proportionality
6.1 A Proportion between Means and Ends
6.1.1 The Ends
6.1.2 The Means
6.1.3 The Test of Appropriateness
6.1.3.1 The Intensity
6.1.3.2 The Quality
6.1.3.2.1 The Principle of Integration
6.1.3.2.2 The Polluter Pays Principle
6.1.3.2.3 The Principle of Rectification at Source
6.1.3.3 The Probability of Achieving the Ends
6.1.4 The Test of Necessity
6.2 A Proportion in the Distribution of the Burden
6.2.1 The Principles of Solidarity and CBDR
6.2.2 The Polluter Pays Principle
6.2.3 The Principle of Loyal Cooperation
6.2.3.1 Introduction
6.2.3.2 Responsibility of the EC under International Law and under Article 4 of the Kyoto Protocol
6.2.3.2.1 The Position of the EC under the Kyoto Protocol
6.2.3.2.2 The Compliance Regime of the Kyoto Protocol and Consequences for the EC
6.2.3.3 The Role of Article 10 EC in Ensuring EC Compliance with Its Kyoto Target
6.2.3.4 Compliance and the Burden-Sharing Agreement for the Period 2012-2020
6.2.3.5 Conclusions on the Principle of Loyal Cooperation
7 Conclusions
Chapter 7 Distributional Choices in EU Climate Change Law and Policy: An Analysis from the Perspective of Legal Principles
1 Introduction
2 The Basic Framework to Make Distributional Choices in EU Law
2.1 Regulatory Measures as Means to Make Distributional Choices: The Evolution of EU Climate Change Policy View from the Perspective of the Meta-principle of Proportionality
2.1.1 Broadening
2.1.1.1 Measures in the Energy Sector
2.1.1.2 Measures in the Transport Sector
2.1.1.3 Measures in the Agricultural Sector
2.1.1.4 Measures in the Industrial Sector
2.1.2 Deepening
2.1.2.1 The Evolution of Mitigation Targets
2.1.2.2 From Soft-Law to Legally Binding Measures
2.2 EU Spending on Climate Change. The Framework to Make Distributional Choices
2.2.1 EU Expenditures on Climate Change
2.2.2 Indirect Distributional Choices Made by the EU. The EC Legal Framework Controlling Distributional Choices Made by Member States through Taxes and Subsidies
3 Analysis of Distributional Choices from the Perspective of the Meta-principle of Proportionality
3.1 The Ends and Means of EU Climate Change Policy
3.1.1 The Test of Appropriateness
3.1.1.1 The Intensity
3.1.1.1.1 The Link between Aggregate Targets and Sectoral Targets
3.1.1.1.2 The Increasing Attention Paid to Distributional Impacts of Legislation
3.1.1.1.3 The Involvement of Stakeholders in Making Distributional Choices
3.1.1.1.4 The Increasing Use of MBIs and Consequences for Distributional Choices
3.1.1.1.5 Monitoring and Reporting Requirements
3.1.1.1.6 Penalties at EU Level
3.1.1.1.7 Observations Regarding the Test of Intensity
3.1.1.2 The Quality
3.1.1.2.1 The Principle of Integration and EU Climate Policy
3.1.1.2.2 The Increasing Role of the Polluter Pays Principle in Distributional Choices in EU Climate Policy
3.1.1.2.3 The Principle of Rectification at Source
3.1.1.3 The Probability of Achieving the Ends
3.1.1.3.1 The Probability of Achieving the Ends and Distributional Choices Affecting Production
3.1.1.3.2 The Probability of Achieving the Ends and Distributional Choices Affecting the Consumption Side
3.1.2 The Test of Necessity: Attribution, Subsidiarity and Proportionality
3.1.2.1 Attribution
3.1.2.2 Subsidiarity and Proportionality
3.1.3 Conclusions from the Application of the First Dimension of Meta-Proportionality
3.2 The Second Dimension of the Meta-principle of Proportionality: A Proportion in the Distribution of the Burdens
3.2.1 The Principle of Proportionality in the Distribution
3.2.1.1 Proportionality as a Principle Used by the Legislator
3.2.1.2 Proportionality as a Balancing Process
3.2.1.3 Proportionality as a Principle Used by the Courts
3.2.2 The Principle of Equality
3.2.2.1 Equal Treatment as a Guiding Principle of Harmonization in EU Climate Policy
3.2.2.2 Assessing EU Climate Policy from the Perspective of the Principle of Equality
3.2.2.2.1 Equality and the Scope of Measures
3.2.2.2.2 Equality and Allocation Rules in the EU ETS
3.2.3 Conclusions from the Application of the Second Dimension of Proportionality
3.3 The Third Dimension of the Meta-principle of Proportionality: Distributional Choices in EU Climate Change Policy and Public Participation
3.3.1 Public Participation in the Making of EU Climate Change Policy
3.3.2 Access to Justice
3.3.3 Conclusions from the Third Dimension of the Meta-principle of Proportionality
4 General Conclusions
Chapter 8 Distributional Choices in EU Climate Change Policy: Towards a More Principled Approach
1 The Research Questions Investigated in This Book
2 The Role of Legal Principles in Relation to Distributional Choices of Climate Change Policy
3 Legal Principles in EU Law
4 Are Distributional Choices Made in EU Law in line with the Requirements Imposed by the Relevant Legal Principles?
4.1 The First Distributional Choice: Burden Sharing between Generations
4.1.1 Is the EU Approach to Burden Sharing between Generations in line with the Principles That Form the First Dimension of the Meta-principle of Proportionality?
4.1.2 Is the EU Approach towards Burden Sharing between Generations in line with the Principles That Form the Second Dimension of Meta-proportionality?
4.1.3 Is the EU Approach towards Burden Sharing between Generations in line with the Principles That Form the Third Dimension of Meta-proportionality?
4.2 The Second Distributional Choice: Burden Sharing between Countries at International Level
4.2.1 Is the EU Approach towards Burden Sharing at International Level in line with the Principles That Form the Meta-principle of Proportionality?
4.2.2 Is the EU Approach towards the Potential Impacts That EU Climate Change Policy May Have on Developing Countries in line with the Legal Principles that Form the Meta-principle of Proportionality?
4.3 The Third Distributional Choice: Is the EU Position towards Burden Sharing among EU Member States in line with the Principles That Form the Meta-principle of proportionality?
4.4 The Fourth Distributional Choice: Is the EU Position towards Burden Sharing within the Internal Market in line with the Principles That Form the Meta-principle of Proportionality?
4.4.1 Is the EU Position towards Burden Sharing in the Internal Market in line with the Principles That Form the First Dimension of the Meta-principle of Proportionality?
4.4.2 Is the EU Position towards Burden Sharing in the Internal Market in line with the Principles That Form the Second Dimension of the Meta-principle of Proportionality?
4.4.3 Is the EU Position towards Burden Sharing in the Internal Market in line with the Principles That Form the Third Dimension of the Meta-principle of Proportionality?
5 Are There Remaining Tensions between the Distributional Choices Taken (or Proposed To Be Taken), and Legal Principles of Community Law, and if so, Could Those Choices be Challenged before the European Courts?
6 Is It Possible to Detect in Law, Policy Documents and Relevant Literature, the Emergence of New Legal Principles Which Could Provide Additional Guidance When Making, Evaluating and Testing Distributional Choices in Climate Change Law?
7 Can an Analysis Based on Legal Principles be Used to Provide Recommendations to Policymakers Regarding the Content and Mode of Adoption of Distributional Choices? Could the Same Analysis be of Use for Courts When Reflecting on the Legality of Distributional Choices, and for Scholars to Structure Their Thinking on Them?
7.1 Policy Recommendations in Order to Increase the Fit between Legal Principles and Distributional Choices
7.2 Personal Carbon Trading and Mitigation: A Possible Way Forward
7.3 Usefulness of This Research for Courts and Scholars
8 General Conclusions and Suggestions for Further Research
Bibliography
Index

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