Pub Date : 2019-09-11DOI: 10.1163/18760104-01603002
L. Kotzé
This paper argues that international environmental law (iel) is not sufficiently ambitious to confront the Anthropocene’s socio-ecological crisis. The critique specifically focuses on iel’s lack of ambitious and “unmentionable” ecological norms such as rights of nature, Earth system integrity, and ecological sustainability that are not yet considered to be part of the corpus of iel, but that arguably should be in light of the prevailing and ever-deepening socio-ecological crisis. Assuming that the recent Global Pact for the Environment initiative and its accompanying United Nations-mandated report that assesses possible gaps in iel are indicative of the type of reforms we might expect of iel now and in future, the paper determines if and the extent to which the Global Pact initiative embraces ambitious norms and addresses iel’s “unmentionable” normative gaps. A secondary, but related, objective of the paper is to briefly respond to the recent view that any radical critique of the Global Pact initiative is either unfounded, unwarranted or undesirable.
{"title":"International Environmental Law’s Lack of Normative Ambition: an Opportunity for the Global Pact for the Environment?","authors":"L. Kotzé","doi":"10.1163/18760104-01603002","DOIUrl":"https://doi.org/10.1163/18760104-01603002","url":null,"abstract":"This paper argues that international environmental law (iel) is not sufficiently ambitious to confront the Anthropocene’s socio-ecological crisis. The critique specifically focuses on iel’s lack of ambitious and “unmentionable” ecological norms such as rights of nature, Earth system integrity, and ecological sustainability that are not yet considered to be part of the corpus of iel, but that arguably should be in light of the prevailing and ever-deepening socio-ecological crisis. Assuming that the recent Global Pact for the Environment initiative and its accompanying United Nations-mandated report that assesses possible gaps in iel are indicative of the type of reforms we might expect of iel now and in future, the paper determines if and the extent to which the Global Pact initiative embraces ambitious norms and addresses iel’s “unmentionable” normative gaps. A secondary, but related, objective of the paper is to briefly respond to the recent view that any radical critique of the Global Pact initiative is either unfounded, unwarranted or undesirable.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01603002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45570476","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 : 2019-09-11DOI: 10.1163/18760104-01603003
A. Christiernsson
As with many biodiversity laws, the Habitats Directive allows for exemptions. While it can be argued that flexibility is necessary for handling dynamic ecosystems, the associated lack of legal clarity on the room to derogate can risk impairing both the effectiveness and the uniform application of EU-law. This study aims at clarifying the conditions to derogate from the strict protection of species under Article 16(1)(e), a provision which has been interpreted to provide a legal basis for hunting species with a favourable conservation status in several Member States. One such controversial case is the hunting of brown bears in Sweden. The Swedish brown bear management will thus be used as an illustrative example to discuss Member States’ discretion to derogate under Article 16(1)(e).
{"title":"Is the Swedish Brown Bear Management in Compliance with EU Biodiversity Law?","authors":"A. Christiernsson","doi":"10.1163/18760104-01603003","DOIUrl":"https://doi.org/10.1163/18760104-01603003","url":null,"abstract":"As with many biodiversity laws, the Habitats Directive allows for exemptions. While it can be argued that flexibility is necessary for handling dynamic ecosystems, the associated lack of legal clarity on the room to derogate can risk impairing both the effectiveness and the uniform application of EU-law. This study aims at clarifying the conditions to derogate from the strict protection of species under Article 16(1)(e), a provision which has been interpreted to provide a legal basis for hunting species with a favourable conservation status in several Member States. One such controversial case is the hunting of brown bears in Sweden. The Swedish brown bear management will thus be used as an illustrative example to discuss Member States’ discretion to derogate under Article 16(1)(e).","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01603003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46270331","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 : 2019-09-11DOI: 10.1163/18760104-01603005
S. Möckel
For decades, German agriculture has been responsible for high nitrogen inputs into the environment. Recent reductions in nitrogen surpluses that were originally caused by fertilization are not sufficient to meet European requirements. In the case of ammonia emissions, there has even been an upward trend despite contradicting national emission targets due to the expansion of animal husbandry. Both developments are not surprising, since German agricultural policy has for years been unable to adopt stricter measures that would reduce nitrogen surpluses and ammonia emissions and modernise existing regulatory concepts in line with European requirements. This paper presents the state of current emissions in section 1. Subsequently, sections 2 to 4 present the regulatory concepts for livestock facilities, agricultural fertilisation as well as the protection of Natura 2000 areas from agricultural intervention and identify their shortcomings in the light of recent rulings by the European Court of Justice. The paper offers a summary assessment that includes the most important areas for improvement.
{"title":"Germany’s Excessive Agricultural Nitrogen Emissions and the Need for Improving Existing Regulatory Concepts","authors":"S. Möckel","doi":"10.1163/18760104-01603005","DOIUrl":"https://doi.org/10.1163/18760104-01603005","url":null,"abstract":"For decades, German agriculture has been responsible for high nitrogen inputs into the environment. Recent reductions in nitrogen surpluses that were originally caused by fertilization are not sufficient to meet European requirements. In the case of ammonia emissions, there has even been an upward trend despite contradicting national emission targets due to the expansion of animal husbandry. Both developments are not surprising, since German agricultural policy has for years been unable to adopt stricter measures that would reduce nitrogen surpluses and ammonia emissions and modernise existing regulatory concepts in line with European requirements. This paper presents the state of current emissions in section 1. Subsequently, sections 2 to 4 present the regulatory concepts for livestock facilities, agricultural fertilisation as well as the protection of Natura 2000 areas from agricultural intervention and identify their shortcomings in the light of recent rulings by the European Court of Justice. The paper offers a summary assessment that includes the most important areas for improvement.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01603005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44045551","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 : 2019-09-11DOI: 10.1163/18760104-01603004
Wolfgang Köck
In Germany, the wolf population develops in a very dynamic manner. As a result, politics and society increasingly worry about human safety and whether the return of the wolf can be kept compatible with pasture grazing. Plans by the federal states (Länder) for wolf management serve both to prepare society for the return of wolves and to deal with likely emerging conflicts. In exceptional cases, conflict management may include the ‘removal’ of wolves, i.e. the killing of individual ‘problem-wolves’. This paper analyses the legal prerequisites for the removal of wolves; it also addresses the conditions that must be met for wolf management to be placed under a new legal framework – beyond the exemption regime under species protection law. In this context, the ‘favourable conservation status’ of wolves plays a key role.
{"title":"Wolf Conservation and Removal of Wolves in Germany – Status quo and Prospects","authors":"Wolfgang Köck","doi":"10.1163/18760104-01603004","DOIUrl":"https://doi.org/10.1163/18760104-01603004","url":null,"abstract":"In Germany, the wolf population develops in a very dynamic manner. As a result, politics and society increasingly worry about human safety and whether the return of the wolf can be kept compatible with pasture grazing. Plans by the federal states (Länder) for wolf management serve both to prepare society for the return of wolves and to deal with likely emerging conflicts. In exceptional cases, conflict management may include the ‘removal’ of wolves, i.e. the killing of individual ‘problem-wolves’. This paper analyses the legal prerequisites for the removal of wolves; it also addresses the conditions that must be met for wolf management to be placed under a new legal framework – beyond the exemption regime under species protection law. In this context, the ‘favourable conservation status’ of wolves plays a key role.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01603004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47053654","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 : 2019-07-12DOI: 10.1163/18760104-01602005
C. Streck, M. Unger, Nicole Krämer
The adoption of the “Paris rulebook” at Katowice in late 2018 marks the most significant milestone in international climate policy making since the adoption of the Paris Agreement in 2015. Through a package of decisions, Parties to the Paris Agreement fulfilled almost all of the Paris mandate and moved towards the full implementation of the treaty. With the exception of the discussion on the future of carbon markets, negotiators managed to find common ground across negotiation items ranging from mitigation action to ensuring transparency and follow-up, including through “global stocktakes”, climate finance and technology transfer. Most obligations will apply to all countries, replacing the “bifurcation” of the Kyoto Protocol with a common set of rules for all Parties. Developing countries can make the case for additional time and assistance to comply with the full set of requirements. Several matters are left for future sessions – concerning, in particular, the harmonization of the timeframes of mitigation goals, markets and finance mobilization– and structural challenges – not least concerning the integration of non-state actors – remain. However, in building on accountability, trust, and compliance through facilitation, the new Paris rules may ultimately prove decidedly more robust and sustainable than those of the Kyoto Protocol.
{"title":"From Paris to Katowice: cop-24 Tackles the Paris Rulebook","authors":"C. Streck, M. Unger, Nicole Krämer","doi":"10.1163/18760104-01602005","DOIUrl":"https://doi.org/10.1163/18760104-01602005","url":null,"abstract":"The adoption of the “Paris rulebook” at Katowice in late 2018 marks the most significant milestone in international climate policy making since the adoption of the Paris Agreement in 2015. Through a package of decisions, Parties to the Paris Agreement fulfilled almost all of the Paris mandate and moved towards the full implementation of the treaty. With the exception of the discussion on the future of carbon markets, negotiators managed to find common ground across negotiation items ranging from mitigation action to ensuring transparency and follow-up, including through “global stocktakes”, climate finance and technology transfer. Most obligations will apply to all countries, replacing the “bifurcation” of the Kyoto Protocol with a common set of rules for all Parties. Developing countries can make the case for additional time and assistance to comply with the full set of requirements. Several matters are left for future sessions – concerning, in particular, the harmonization of the timeframes of mitigation goals, markets and finance mobilization– and structural challenges – not least concerning the integration of non-state actors – remain. However, in building on accountability, trust, and compliance through facilitation, the new Paris rules may ultimately prove decidedly more robust and sustainable than those of the Kyoto Protocol.\u0000","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01602005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46041638","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 : 2019-07-12DOI: 10.1163/18760104-01602004
A. Savaresi, L. Perugini
Under the recently adopted 2030 EU climate change policy framework, land use, land use change and forestry (lulucf) will for the first time contribute to the EU’s economy wide emission reduction target. This article looks at the history of the lulucf Regulation, analysing its contents in light of the history of international and regional efforts to regulate emissions and removals in this specific sector. It highlights the challenges associated with regulating this specific sector and reviews the regulation, assessing how well it has addressed these challenges.
{"title":"The Land Sector in the 2030 EU Climate Change Policy Framework: a Look At The Future","authors":"A. Savaresi, L. Perugini","doi":"10.1163/18760104-01602004","DOIUrl":"https://doi.org/10.1163/18760104-01602004","url":null,"abstract":"Under the recently adopted 2030 EU climate change policy framework, land use, land use change and forestry (lulucf) will for the first time contribute to the EU’s economy wide emission reduction target. This article looks at the history of the lulucf Regulation, analysing its contents in light of the history of international and regional efforts to regulate emissions and removals in this specific sector. It highlights the challenges associated with regulating this specific sector and reviews the regulation, assessing how well it has addressed these challenges.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01602004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46350849","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 : 2019-07-12DOI: 10.1163/18760104-01602003
Bernhard W. Wegener
The Gerechtshof in The Hague has condemned the Netherlands to take measures to ensure a reduction of at least 25% of Dutch greenhouse gas emissions by the end of 2020. The court thus confirms the first-instance Urgenda decision, which had attracted much attention worldwide and which serves as a model for a whole series of other climate change litigations, some of which have since failed, some are still pending or planned. Even bearing in mind the urgency of the climate protection goal pursued by these lawsuits, the idea of a world rescue through court decisions is ultimately misleading. It overestimates the power of the judicial branch and risks being lost in mere symbolism. Worse still, it shifts responsibilities and creates expectations that tend to further de-legitimize the constitutional democratic systems of the world and their concept of a separation of powers. Even from a solely environmental point of view, this constitutes a high risk, because there are no better alternatives of responsible government. Keeping this risk in mind, the fact that the specific “Urgenda”-decision is legally not convincing seems an almost minor aspect.
{"title":"Urgenda – World Rescue by Court Order? The “Climate Justice”-Movement Tests the Limits of Legal Protection","authors":"Bernhard W. Wegener","doi":"10.1163/18760104-01602003","DOIUrl":"https://doi.org/10.1163/18760104-01602003","url":null,"abstract":"The Gerechtshof in The Hague has condemned the Netherlands to take measures to ensure a reduction of at least 25% of Dutch greenhouse gas emissions by the end of 2020. The court thus confirms the first-instance Urgenda decision, which had attracted much attention worldwide and which serves as a model for a whole series of other climate change litigations, some of which have since failed, some are still pending or planned. Even bearing in mind the urgency of the climate protection goal pursued by these lawsuits, the idea of a world rescue through court decisions is ultimately misleading. It overestimates the power of the judicial branch and risks being lost in mere symbolism. Worse still, it shifts responsibilities and creates expectations that tend to further de-legitimize the constitutional democratic systems of the world and their concept of a separation of powers. Even from a solely environmental point of view, this constitutes a high risk, because there are no better alternatives of responsible government. Keeping this risk in mind, the fact that the specific “Urgenda”-decision is legally not convincing seems an almost minor aspect.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01602003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41915995","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 : 2019-07-12DOI: 10.1163/18760104-01602007
L. Krämer
{"title":"Climate Cases before the European Courts","authors":"L. Krämer","doi":"10.1163/18760104-01602007","DOIUrl":"https://doi.org/10.1163/18760104-01602007","url":null,"abstract":"","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01602007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48350935","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 : 2019-07-12DOI: 10.1163/18760104-01602002
J. Kokott, Christoph Sobotta
The enforcement of EU environmental law is of particular relevance because EU law provides most of the framework of environmental law in the Member States, including the UK. Supervision by the EU Commission ensures a certain general standard of compliance, especially as regards transposition of directives and conformity of transposing legislation. The practice of domestic courts is an essential complement to Commission action. In this respect the Luxembourg jurisprudence has in particular strengthened the judicial powers of UK courts and provided some protection against excessive costs of judicial proceedings. After brexit much of this contribution could continue to be relevant, in particular if the agreement that was negotiated with the EU should be ratified.
{"title":"The Contribution of the Case Law of the cjeu to the Judicial Enforcement of EU Environmental Law in the UK","authors":"J. Kokott, Christoph Sobotta","doi":"10.1163/18760104-01602002","DOIUrl":"https://doi.org/10.1163/18760104-01602002","url":null,"abstract":"The enforcement of EU environmental law is of particular relevance because EU law provides most of the framework of environmental law in the Member States, including the UK. Supervision by the EU Commission ensures a certain general standard of compliance, especially as regards transposition of directives and conformity of transposing legislation. The practice of domestic courts is an essential complement to Commission action. In this respect the Luxembourg jurisprudence has in particular strengthened the judicial powers of UK courts and provided some protection against excessive costs of judicial proceedings. After brexit much of this contribution could continue to be relevant, in particular if the agreement that was negotiated with the EU should be ratified.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01602002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48920129","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 : 2019-06-05DOI: 10.1163/18760104-01603006
Jan Darpö
The “wolf issue” is hot all over Europe, not least in the Nordic countries. Due to pressure from farmers’ and hunters’ organisations, license hunts are performed on a large scale basis in Norway, Sweden and Finland. As the wolf is strictly protected under the Habitats Directive, hunts must have a legal basis in a derogation decision according to Article 16(1). Many of the hunting decisions issued by the authorities under this provision have been challenged in the national courts by the engo community, but so far with little success. However, in late 2017, the Finnish organisation Tapiola brought a case all the way to the Supreme Administrative Court, which requested a preliminary ruling by the cjeu on whether such a license hunt is in line with the Directive. The Advocate General’s opinion in this case (C-674/17) came in May. This article is a comment to that opinion.
{"title":"Anything Goes, but…","authors":"Jan Darpö","doi":"10.1163/18760104-01603006","DOIUrl":"https://doi.org/10.1163/18760104-01603006","url":null,"abstract":"The “wolf issue” is hot all over Europe, not least in the Nordic countries. Due to pressure from farmers’ and hunters’ organisations, license hunts are performed on a large scale basis in Norway, Sweden and Finland. As the wolf is strictly protected under the Habitats Directive, hunts must have a legal basis in a derogation decision according to Article 16(1). Many of the hunting decisions issued by the authorities under this provision have been challenged in the national courts by the engo community, but so far with little success. However, in late 2017, the Finnish organisation Tapiola brought a case all the way to the Supreme Administrative Court, which requested a preliminary ruling by the cjeu on whether such a license hunt is in line with the Directive. The Advocate General’s opinion in this case (C-674/17) came in May. This article is a comment to that opinion.","PeriodicalId":43633,"journal":{"name":"Journal for European Environmental & Planning Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18760104-01603006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47631006","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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