Pub Date : 2020-03-19DOI: 10.1163/18786561-01001001
S. Kingston
In EU law the polluter pays principle (ppp) enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (tfeu) enshrines it among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the ppp in EU law, in the case law of the Court of Justice of the European Union (cjeu) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the ppp has been most influential to date: first, cases concerning the EU ets and emissions; second, cases concerning EU energy law; and third, cases concerning EU state-aid law. The conclusion reflects on the potential role of the ppp in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.
{"title":"The Polluter Pays Principle in EU Climate Law: an Effective Tool before the Courts?","authors":"S. Kingston","doi":"10.1163/18786561-01001001","DOIUrl":"https://doi.org/10.1163/18786561-01001001","url":null,"abstract":"In EU law the polluter pays principle (ppp) enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (tfeu) enshrines it among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the ppp in EU law, in the case law of the Court of Justice of the European Union (cjeu) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the ppp has been most influential to date: first, cases concerning the EU ets and emissions; second, cases concerning EU energy law; and third, cases concerning EU state-aid law. The conclusion reflects on the potential role of the ppp in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49196414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-03-19DOI: 10.1163/18786561-01001004
D. Heine, M. Faure, G. Dominioni
There is a lively debate among scholars and policymakers on whether either consumers or producers should be seen as responsible for pollution caused in the production and consumption of traded goods. In this article, we argue that, in conformity with intuitive conceptions of causation, the economic incidence of a Pigouvian tax can be seen as a measure of the relative contribution to pollution of consumers and producers. Taking this perspective on the polluter-pays principle can help increase ambition in climate change action because it reduces the relevance of the question “Who is the polluter?” in climate change negotiations and enables a focus instead on the issue of “What can be done?” to reduce carbon emissions.
{"title":"The Polluter-Pays Principle in Climate Change Law: an Economic Appraisal","authors":"D. Heine, M. Faure, G. Dominioni","doi":"10.1163/18786561-01001004","DOIUrl":"https://doi.org/10.1163/18786561-01001004","url":null,"abstract":"There is a lively debate among scholars and policymakers on whether either consumers or producers should be seen as responsible for pollution caused in the production and consumption of traded goods. In this article, we argue that, in conformity with intuitive conceptions of causation, the economic incidence of a Pigouvian tax can be seen as a measure of the relative contribution to pollution of consumers and producers. Taking this perspective on the polluter-pays principle can help increase ambition in climate change action because it reduces the relevance of the question “Who is the polluter?” in climate change negotiations and enables a focus instead on the issue of “What can be done?” to reduce carbon emissions.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47790778","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-03-19DOI: 10.1163/18786561-01001003
Paul A. Barresi
The disparate fates of the polluter pays principle (ppp) as an instrument of municipal environmental governance in the environmental law of China, India, and the United States illustrate how institutions and culture can shape its use. In China, essential elements of the Chinese legal tradition and an institutionalized devolution of power from the central government to local governments essentially neutralized the Chinese variant of the ppp in one important context by mobilizing certain culturally defined behavioural norms at the local level. In India, the Supreme Court has behaved in accordance with the socially revolutionary role intended for it by the framers of India’s Constitution by recognizing a maximalist conception of the ppp as part of Indian law, although other features of India’s unique legal culture and institutions have reduced the impact of this development. In the United States, the institutionalized fragmentation of the law-making process within the Federal Government has undermined even the implicit implementation of the ppp, to which US environmental statutes do not refer. The implications of these developments for the ppp as an instrument of municipal but also global environmental governance in climate change mitigation law flow less from the nominal status of the ppp in the laws of China, India, and the United States than from the unique institutional and cultural conditions that prevail there. The result is a case study in how institutions and culture can transform the implementation of a principle of environmental governance that at first glance might seem to be a simple exercise in economic rationality into a different exercise that is not simple at all.
{"title":"The Polluter Pays Principle as an Instrument of Municipal and Global Environmental Governance in Climate Change Mitigation Law: Lessons from China, India, and the United States","authors":"Paul A. Barresi","doi":"10.1163/18786561-01001003","DOIUrl":"https://doi.org/10.1163/18786561-01001003","url":null,"abstract":"The disparate fates of the polluter pays principle (ppp) as an instrument of municipal environmental governance in the environmental law of China, India, and the United States illustrate how institutions and culture can shape its use. In China, essential elements of the Chinese legal tradition and an institutionalized devolution of power from the central government to local governments essentially neutralized the Chinese variant of the ppp in one important context by mobilizing certain culturally defined behavioural norms at the local level. In India, the Supreme Court has behaved in accordance with the socially revolutionary role intended for it by the framers of India’s Constitution by recognizing a maximalist conception of the ppp as part of Indian law, although other features of India’s unique legal culture and institutions have reduced the impact of this development. In the United States, the institutionalized fragmentation of the law-making process within the Federal Government has undermined even the implicit implementation of the ppp, to which US environmental statutes do not refer. The implications of these developments for the ppp as an instrument of municipal but also global environmental governance in climate change mitigation law flow less from the nominal status of the ppp in the laws of China, India, and the United States than from the unique institutional and cultural conditions that prevail there. The result is a case study in how institutions and culture can transform the implementation of a principle of environmental governance that at first glance might seem to be a simple exercise in economic rationality into a different exercise that is not simple at all.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"10 1","pages":"50-93"},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44777353","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-03-19DOI: 10.1163/18786561-01001002
N. Sadeleer
Since 2009, the EU ets Directive set up a general rule for the auctioning of emission allowances. It is subject to a number of exemptions. The transitional allocation of free allowances in the electricity sector, and in general the granting of free or below-market-price allowances, are caught by the tfeu prohibition on grants of state aid. However, the EU legislature and its executive—the European Commission—are empowered to grant the EU member states exemptions in order to correct market failures. At face value, such arrangements seem to run contrary to the polluter-pays principle on account that state aid subsidizes emissions of greenhouse gases instead of internalizing their costs into the price of goods and services delivered by the recipient installations. This article explores how such arrangements amount to state aid and analyses the manner in which the exemptions are consistent with the polluter-pays principle.
{"title":"Consistency between the Granting of State Aid and the Polluter-Pays Principle: Aid Aimed at Mitigating Climate Change","authors":"N. Sadeleer","doi":"10.1163/18786561-01001002","DOIUrl":"https://doi.org/10.1163/18786561-01001002","url":null,"abstract":"Since 2009, the EU ets Directive set up a general rule for the auctioning of emission allowances. It is subject to a number of exemptions. The transitional allocation of free allowances in the electricity sector, and in general the granting of free or below-market-price allowances, are caught by the tfeu prohibition on grants of state aid. However, the EU legislature and its executive—the European Commission—are empowered to grant the EU member states exemptions in order to correct market failures. At face value, such arrangements seem to run contrary to the polluter-pays principle on account that state aid subsidizes emissions of greenhouse gases instead of internalizing their costs into the price of goods and services delivered by the recipient installations. This article explores how such arrangements amount to state aid and analyses the manner in which the exemptions are consistent with the polluter-pays principle.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"10 1","pages":"28-49"},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42036357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-03-19DOI: 10.1163/18786561-01001005
Michael Addaney
{"title":"State Responsibility, Climate Change and Human Rights under International Law, by Margaretha Wewerinke-Singh","authors":"Michael Addaney","doi":"10.1163/18786561-01001005","DOIUrl":"https://doi.org/10.1163/18786561-01001005","url":null,"abstract":"","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"10 1","pages":"117-122"},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48320608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-11DOI: 10.1163/18786561-00904001
Kevin B. Jones, Benjamin B. Civiletti, Angela Sicker
Open access to electric markets supports the integration of growing renewable energy resources. This is increasingly important as more US states aim to meet 100 percent of their energy needs with zero-emission resources. Currently states employ a wide variety of renewable energy targets and eligibility requirements. An example of the increasingly complex US state policy patchwork is state-mandated zero-emission credits (zecs) for nuclear facilities. Rather than increase conflict between clean energy goals and wholesale electric markets, there is a need for a more comprehensive regional approach that provides the appropriate price signals for carbon through existing market mechanisms. A carbon charge could be designed to eliminate the need for out-of-market zec payments to nuclear generation and significantly reduce state payments for renewable energy credits. This article examines the growing conflict between regional electricity markets and more localized clean-energy goals and explores how a carbon charge in the US regional electricity markets both mitigate this conflict and expedite the low-carbon transition.
{"title":"Carbon Pricing in US Electricity Markets: Expediting the Low-Carbon Transition While Mitigating the Growing Conflict between Renewable-Energy Goals and Regional Electricity Markets","authors":"Kevin B. Jones, Benjamin B. Civiletti, Angela Sicker","doi":"10.1163/18786561-00904001","DOIUrl":"https://doi.org/10.1163/18786561-00904001","url":null,"abstract":"Open access to electric markets supports the integration of growing renewable energy resources. This is increasingly important as more US states aim to meet 100 percent of their energy needs with zero-emission resources. Currently states employ a wide variety of renewable energy targets and eligibility requirements. An example of the increasingly complex US state policy patchwork is state-mandated zero-emission credits (zecs) for nuclear facilities. Rather than increase conflict between clean energy goals and wholesale electric markets, there is a need for a more comprehensive regional approach that provides the appropriate price signals for carbon through existing market mechanisms. A carbon charge could be designed to eliminate the need for out-of-market zec payments to nuclear generation and significantly reduce state payments for renewable energy credits. This article examines the growing conflict between regional electricity markets and more localized clean-energy goals and explores how a carbon charge in the US regional electricity markets both mitigate this conflict and expedite the low-carbon transition.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"9 1","pages":"263-302"},"PeriodicalIF":1.0,"publicationDate":"2019-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00904001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43701618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-11DOI: 10.1163/18786561-00904003
B. Mayer
{"title":"Can We Price Carbon?, written by Barry G. Rabe","authors":"B. Mayer","doi":"10.1163/18786561-00904003","DOIUrl":"https://doi.org/10.1163/18786561-00904003","url":null,"abstract":"","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"9 1","pages":"327-330"},"PeriodicalIF":1.0,"publicationDate":"2019-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00904003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42307983","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-12-11DOI: 10.1163/18786561-00904002
Thomas Leclerc
The search for a global market-based measure to reduce greenhouse gas emissions from international civil aviation has faced legal obstacles. One of these is linked to the basis of such a measure: the polluter pays principle. The application of the principle in the aviation legal regime has resulted in a conflict of norms. As a solution, the International Civil Aviation Organization, in 2016, adopted a market-based measure in the form of the Carbon Offsetting and Reduction Scheme for International Aviation (corsia). This article will address the following two questions: By adopting corsia, and by negotiating its implementation, has icao produced a successful integration of the polluter pays principle in a sectoral legal regime of norms and institutions? If yes, could icao’s success provide arguments for a sectoral application of the polluter pays principle more broadly in public international law?
{"title":"A Sectoral Application of the Polluter Pays Principle: Lessons Learned from the Aviation Sector","authors":"Thomas Leclerc","doi":"10.1163/18786561-00904002","DOIUrl":"https://doi.org/10.1163/18786561-00904002","url":null,"abstract":"The search for a global market-based measure to reduce greenhouse gas emissions from international civil aviation has faced legal obstacles. One of these is linked to the basis of such a measure: the polluter pays principle. The application of the principle in the aviation legal regime has resulted in a conflict of norms. As a solution, the International Civil Aviation Organization, in 2016, adopted a market-based measure in the form of the Carbon Offsetting and Reduction Scheme for International Aviation (corsia). This article will address the following two questions: By adopting corsia, and by negotiating its implementation, has icao produced a successful integration of the polluter pays principle in a sectoral legal regime of norms and institutions? If yes, could icao’s success provide arguments for a sectoral application of the polluter pays principle more broadly in public international law?","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"9 1","pages":"303-325"},"PeriodicalIF":1.0,"publicationDate":"2019-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00904002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43829801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-26DOI: 10.1163/18786561-00903002
John H. Knox
This article provides a framework for considering how human rights norms have been, and may be, brought to bear on climate change. After describing how human rights norms have been applied to environmental issues generally, the article addresses the challenge of climate change, whose global nature complicates the application of environmental human rights norms. The third section summarizes the emerging human rights obligations of states with respect to climate change.
{"title":"Bringing Human Rights to Bear on Climate Change","authors":"John H. Knox","doi":"10.1163/18786561-00903002","DOIUrl":"https://doi.org/10.1163/18786561-00903002","url":null,"abstract":"This article provides a framework for considering how human rights norms have been, and may be, brought to bear on climate change. After describing how human rights norms have been applied to environmental issues generally, the article addresses the challenge of climate change, whose global nature complicates the application of environmental human rights norms. The third section summarizes the emerging human rights obligations of states with respect to climate change.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00903002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43527106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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