Z. Makuch, Bethan Sloan, Nikzad Oraee- Mirzamani, Behdeen Oraee- Mirzamani
Further to the EU carbon regulatory framework, particularly the EU Emissions Trading Scheme and the EU Carbon Border Adjustment Mechanism (CBAM), this legal and related implementation research addresses the regulatory future of carbon leakage prevention within the UK industrial sector. Carbon leakage from other countries or sectors will not be addressed. Further, the UK ETS will be the central regulatory mechanism from which carbon leakage will be considered while other avenues will not be addressed. The scope will be narrowed further for a case study, which explores the regulatory scenario in the context of the UK cement industry as a demonstration of a regulatory scenario in action. To the best of the authors’ knowledge, no research currently explores future prevention of carbon leakage in the UK ETS with specific qualitative analysis of the UK cement industry. This research is designed to fill this gap. This research also identifies and analyses the regulatory options available to prevent carbon leakage in the UK ETS for the UK industrial sector, to guide future regulatory strategy with continuing EU regulatory alignment in mind, at least as a means of Brexit damage control limitation noting that Johnsonian Anti-EU diplomacy needs to be reversed in the UK environmental and economic interest. Among the objectives of the research, we review and critique the evidence base for carbon regulatory leakage within the UK’s industrial sector, and the historical and current regulatory strategies to avoid it. We analyse how a particular regulatory scenario may apply to the UK cement industry, and how the industry may be affected by the implementation of this regulatory scenario. Interviews with key experts and stakeholders were conducted in order to reinforce and validate the literature and case study analysis. After an Introduction (section I), the research design is explained and justified in methodological terms (section II). Then we conduct a literature analysis to address the phenomenon of carbon leakage in its current and historical context (section III). A regulatory scenario is developed and presented in section IV to understand CBAM implementation challenges. In section V we conduct a case study of CBAM and the cement industry to further explore the regulatory scenario. Section VI, the Discussion section addresses semi-structured interview responses which are thematically analysed alongside findings from previous sections. Finally, we conclude with remarks about key findings, limitations and future research opportunities. In summation, if the UK hopes to meet its ambitious climate goals, an updated carbon leakage strategy is required to mitigate this. The UK should immediately consider how it wishes to align with the EU ETS on these regulatory matters. Experts across sectors agreed that pursuing linkage of the UK ETS with the EU ETS and implementing a similar CBAM would benefit the UK. If this is the regulatory future of choice, alignment of curr
{"title":"European Regulatory Approaches to Preventing Carbon Leakage: Rolling Back Johnson’s EU ‘Diplomacy’ for a Brighter Environmental Future","authors":"Z. Makuch, Bethan Sloan, Nikzad Oraee- Mirzamani, Behdeen Oraee- Mirzamani","doi":"10.54648/eelr2023012","DOIUrl":"https://doi.org/10.54648/eelr2023012","url":null,"abstract":"Further to the EU carbon regulatory framework, particularly the EU Emissions Trading Scheme and the EU Carbon Border Adjustment Mechanism (CBAM), this legal and related implementation research addresses the regulatory future of carbon leakage prevention within the UK industrial sector. Carbon leakage from other countries or sectors will not be addressed. Further, the UK ETS will be the central regulatory mechanism from which carbon leakage will be considered while other avenues will not be addressed. The scope will be narrowed further for a case study, which explores the regulatory scenario in the context of the UK cement industry as a demonstration of a regulatory scenario in action. To the best of the authors’ knowledge, no research currently explores future prevention of carbon leakage in the UK ETS with specific qualitative analysis of the UK cement industry. This research is designed to fill this gap. This research also identifies and analyses the regulatory options available to prevent carbon leakage in the UK ETS for the UK industrial sector, to guide future regulatory strategy with continuing EU regulatory alignment in mind, at least as a means of Brexit damage control limitation noting that Johnsonian Anti-EU diplomacy needs to be reversed in the UK environmental and economic interest. Among the objectives of the research, we review and critique the evidence base for carbon regulatory leakage within the UK’s industrial sector, and the historical and current regulatory strategies to avoid it. We analyse how a particular regulatory scenario may apply to the UK cement industry, and how the industry may be affected by the implementation of this regulatory scenario. Interviews with key experts and stakeholders were conducted in order to reinforce and validate the literature and case study analysis. After an Introduction (section I), the research design is explained and justified in methodological terms (section II). Then we conduct a literature analysis to address the phenomenon of carbon leakage in its current and historical context (section III). A regulatory scenario is developed and presented in section IV to understand CBAM implementation challenges. In section V we conduct a case study of CBAM and the cement industry to further explore the regulatory scenario. Section VI, the Discussion section addresses semi-structured interview responses which are thematically analysed alongside findings from previous sections. Finally, we conclude with remarks about key findings, limitations and future research opportunities. In summation, if the UK hopes to meet its ambitious climate goals, an updated carbon leakage strategy is required to mitigate this. The UK should immediately consider how it wishes to align with the EU ETS on these regulatory matters. Experts across sectors agreed that pursuing linkage of the UK ETS with the EU ETS and implementing a similar CBAM would benefit the UK. If this is the regulatory future of choice, alignment of curr","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41685492","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}
K. Byttebier, José Grabiel Luis Cordova, Yanelys Delgado Triana
Human history has been the story of the constant search for energy, e.g., in terms of food conversion to energy. Early on in its origins, humankind has had to satisfy its energy demand through available energy resources. Although the use of non-renewable energy sources has been perpetuated over time, there are currently many strategies implemented by states to develop energy transition for sustainable development. An example of this is the emergence of decentralization initiatives such as prosumers and energy communities. Within the European Union, the Directives 2018/2001 and 2019/944 open a broad regulatory framework for this type of practice. In the face of the challenges imposed by the so-called energy transition towards more environmentally friendly forms of energy (= ‘green energy’) and climate change, energy democracy plays a key role. These initiatives have currently yielded important results where individuals and communities have become increasingly empowered and have become important actors in energy generation from renewable energy sources. The general objective of this research is to substantiate the need for decentralized energy generation transitions. The main results of the research are the assessment of the legal framework for initiatives in decentralized energy generation in the European Union and the identification of good practices in the European context. energy decentralization initiatives, sustainable energy development, European Union, Energy Law, Energy Policy, energy prosumerism, energy communities, EU Law, energy market, energy consumer empowerment
{"title":"Decentralized Energy Generation for Sustainable Energy Development in EU","authors":"K. Byttebier, José Grabiel Luis Cordova, Yanelys Delgado Triana","doi":"10.54648/eelr2023010","DOIUrl":"https://doi.org/10.54648/eelr2023010","url":null,"abstract":"Human history has been the story of the constant search for energy, e.g., in terms of food conversion to energy. Early on in its origins, humankind has had to satisfy its energy demand through available energy resources. Although the use of non-renewable energy sources has been perpetuated over time, there are currently many strategies implemented by states to develop energy transition for sustainable development. An example of this is the emergence of decentralization initiatives such as prosumers and energy communities. Within the European Union, the Directives 2018/2001 and 2019/944 open a broad regulatory framework for this type of practice. In the face of the challenges imposed by the so-called energy transition towards more environmentally friendly forms of energy (= ‘green energy’) and climate change, energy democracy plays a key role. These initiatives have currently yielded important results where individuals and communities have become increasingly empowered and have become important actors in energy generation from renewable energy sources. The general objective of this research is to substantiate the need for decentralized energy generation transitions. The main results of the research are the assessment of the legal framework for initiatives in decentralized energy generation in the European Union and the identification of good practices in the European context.\u0000energy decentralization initiatives, sustainable energy development, European Union, Energy Law, Energy Policy, energy prosumerism, energy communities, EU Law, energy market, energy consumer empowerment","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48515016","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}
The Clean Energy Package laid the foundations of a more sophisticated unbundling regime for distribution system operators (DSO’s) for electricity. In this article, I propose a systematic analysis of this new regime. I first distinguish vertical from horizontal unbundling. The latter is then further divided in those activities explicitly governed by EU energy law, and a residual category. This residual category amounts to a core business test on behalf of the DSO. Moreover, I propose to extend the EU unbundling regime for DSO in two ways. First, the scope should also cover entities in the same corporate group. Second, it should apply to specific financial burdens on the grid infrastructure for goals other than distribution activities. EU energy law, distribution system operator (DSO), electricity, unbundling, flexibility services, electromobility, energy storage, core business test
{"title":"Unbundling of the Electricity Distribution System Operator (DSO): Refining and Extending the EU Law Regime","authors":"Simon Vanhove","doi":"10.54648/eelr2023011","DOIUrl":"https://doi.org/10.54648/eelr2023011","url":null,"abstract":"The Clean Energy Package laid the foundations of a more sophisticated unbundling regime for distribution system operators (DSO’s) for electricity. In this article, I propose a systematic analysis of this new regime. I first distinguish vertical from horizontal unbundling. The latter is then further divided in those activities explicitly governed by EU energy law, and a residual category. This residual category amounts to a core business test on behalf of the DSO. Moreover, I propose to extend the EU unbundling regime for DSO in two ways. First, the scope should also cover entities in the same corporate group. Second, it should apply to specific financial burdens on the grid infrastructure for goals other than distribution activities.\u0000EU energy law, distribution system operator (DSO), electricity, unbundling, flexibility services, electromobility, energy storage, core business test","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47241394","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}
Simone Borg, David Chetcuti Dimech, Abner Joe Buttigieg, Dylan Farrugia
This paper is intended to study the legal protection of the Maltese honey bee (Apis mellifera ruttneri) from the point of view of preserving Maltese biodiversity, and more specifically the honey bee’s genetic status. The primary aim is to establish whether and how theMaltese honey bee can be protected, specifically through the banning of imports of foreign Apis mellifera subspecies. States are under the general legal obligation of protecting their biodiversity. Member States (MS) of the European Union (EU) EU MS have more specific obligations to do so under EU law. However, Yet conservation of biodiversity under EU law cannot be used to restrict the freedom of movement of goods unless this is done for very restrictive and specific reasons outlined under the EU treaties. This paper will be split into three broad sections. The first establishes whether there are legal obligations to protect the Maltese honey bee imposed on the Maltese government. The second considers whether such protection can be legally justified under EU law, including through banning imports of foreign subspecies of the Apis mellifera species. The third reviews the different methods available to protect the honey bee through the banning of imports of foreign bees. It also incorporates a comparative study of three EU MS that have protected, or are in the process of protecting, a bee native to their territories. Environmental law, EU law, Biodiversity, Species protection, Ban on imports, Endemic species
{"title":"Review of the Maltese and European Laws related to the Genetic Protection of the Endemic Maltese Honey Bee (Apis mellifera ruttneri)","authors":"Simone Borg, David Chetcuti Dimech, Abner Joe Buttigieg, Dylan Farrugia","doi":"10.54648/eelr2023007","DOIUrl":"https://doi.org/10.54648/eelr2023007","url":null,"abstract":"This paper is intended to study the legal protection of the Maltese honey bee (Apis mellifera ruttneri) from the point of view of preserving Maltese biodiversity, and more specifically the honey bee’s genetic status. The primary aim is to establish whether and how theMaltese honey bee can be protected, specifically through the banning of imports of foreign Apis mellifera subspecies.\u0000States are under the general legal obligation of protecting their biodiversity. Member States (MS) of the European Union (EU) EU MS have more specific obligations to do so under EU law. However, Yet conservation of biodiversity under EU law cannot be used to restrict the freedom of movement of goods unless this is done for very restrictive and specific reasons outlined under the EU treaties.\u0000This paper will be split into three broad sections. The first establishes whether there are legal obligations to protect the Maltese honey bee imposed on the Maltese government. The second considers whether such protection can be legally justified under EU law, including through banning imports of foreign subspecies of the Apis mellifera species. The third reviews the different methods available to protect the honey bee through the banning of imports of foreign bees. It also incorporates a comparative study of three EU MS that have protected, or are in the process of protecting, a bee native to their territories.\u0000Environmental law, EU law, Biodiversity, Species protection, Ban on imports, Endemic species","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47434232","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}
This contribution examines whether and how the legal framework regarding waste, as applicable, is an obstacle or not to exnovating the linear economy. After providing an overview of the applicable legal framework regarding waste and the role of waste in the context of exnovating the linear economy (or put differently in the transition to a circular economy) (section II) the contribution dives into the concept of waste (section III) and examines the criteria that are to be fulfilled to qualify a product as waste. Once qualified as waste, a substance or good can also lose again this status if it complies with the conditions of the so-called ‘end-of-waste status’. This contribution examines how these criteria impact a circular economy. The conclusions of the assessment are bundled in section IV. This contribution is part of the interdisciplinary ULB/VUB research project Gosete, financed by Innoviris Brussels (Belgium). Gosete examines the governance issues related to the transition to a sustainable economy and in that context different case studies focused on the Brussels Capital Region (BCR) have been performed. This contribution thus also focuses on the legal framework as applicable to the BCR. However, to the extent this legal framework derives from EU legislation this contribution includes a more general assessment.
{"title":"The (Legal) Concept of Waste: An Obstacle for Exnovating Linear Economic Activities and the Transition to a Circular Economy (In the Brussels Capital Region)?","authors":"R. Feltkamp, Tim Hermans","doi":"10.54648/eelr2023008","DOIUrl":"https://doi.org/10.54648/eelr2023008","url":null,"abstract":"This contribution examines whether and how the legal framework regarding waste, as applicable, is an obstacle or not to exnovating the linear economy. After providing an overview of the applicable legal framework regarding waste and the role of waste in the context of exnovating the linear economy (or put differently in the transition to a circular economy) (section II) the contribution dives into the concept of waste (section III) and examines the criteria that are to be fulfilled to qualify a product as waste. Once qualified as waste, a substance or good can also lose again this status if it complies with the conditions of the so-called ‘end-of-waste status’. This contribution examines how these criteria impact a circular economy. The conclusions of the assessment are bundled in section IV. This contribution is part of the interdisciplinary ULB/VUB research project Gosete, financed by Innoviris Brussels (Belgium). Gosete examines the governance issues related to the transition to a sustainable economy and in that context different case studies focused on the Brussels Capital Region (BCR) have been performed. This contribution thus also focuses on the legal framework as applicable to the BCR. However, to the extent this legal framework derives from EU legislation this contribution includes a more general assessment.","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47676199","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}
Treaty law imposes several limitations on the use of the European Union’s (EU’s) powers in the energy sector. While many of these energy-specific competence restrictions have been analysed in EU legal scholarship, the scope and interpretation ofEUcompetences in the area of trans-European energy infrastructures have remained unexplored. Addressing this gap in the literature, the article examines the division of powers in the EU energy sector in the light of the recent Aquind ruling. The analysis demonstrates that the Aquind case not only clarifies the division of powers with regard to EU energy law and the development of trans-European energy infrastructures but also highlights how Member States’ territorial sovereignty interacts with the development of those infrastructures and thus impacts the development of the internal energy market. T-295/20 Aquind, competence, projects of common interest, trans-European infrastructures, sovereignty, internal market
{"title":"Case T-295/20 Aquind: Clarifying the Division of Powers in the EU Energy Sector","authors":"K. Huhta","doi":"10.54648/eelr2023009","DOIUrl":"https://doi.org/10.54648/eelr2023009","url":null,"abstract":"Treaty law imposes several limitations on the use of the European Union’s (EU’s) powers in the energy sector. While many of these energy-specific competence restrictions have been analysed in EU legal scholarship, the scope and interpretation ofEUcompetences in the area of trans-European energy infrastructures have remained unexplored. Addressing this gap in the literature, the article examines the division of powers in the EU energy sector in the light of the recent Aquind ruling. The analysis demonstrates that the Aquind case not only clarifies the division of powers with regard to EU energy law and the development of trans-European energy infrastructures but also highlights how Member States’ territorial sovereignty interacts with the development of those infrastructures and thus impacts the development of the internal energy market.\u0000T-295/20 Aquind, competence, projects of common interest, trans-European infrastructures, sovereignty, internal market","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44552075","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}
In this article, the administrative review mechanism under the ‘old’ and the ‘new’ Aarhus Regulation is analysed. It is argued that the mechanism still raises concerns, among others, regarding impartiality and fairness, as required by the Aarhus Convention (the ‘old problems’). The conclusion is that although the Aarhus Regulation administrative review mechanism was introduced in order to strengthen access to justice in environmental matters in the EU legal system, it does not significantly contribute to this aim. Instead, it constitutes the mechanism of self-review for the EU institutions and bodies. Nevertheless, it is argued that this failure is inevitable and lays down in its very foundations. In practical terms, it seems that the mechanism designed to ‘provide for access to judicial or other review procedures for challenging acts and omissions by private persons’ effectively contributes to another than access to justice component of environmental democracy, mainly access to information. Access to justice, EU legal remedies, environmental law, administrative review mechanism, Aarhus Convention, Aarhus Regulation
{"title":"Aarhus Regulation Administrative (self-) Review Mechanism: The Inevitable Failure to Contribute to Access to Justice in the EU?","authors":"Angelika Krężel","doi":"10.54648/eelr2023006","DOIUrl":"https://doi.org/10.54648/eelr2023006","url":null,"abstract":"In this article, the administrative review mechanism under the ‘old’ and the ‘new’ Aarhus Regulation is analysed. It is argued that the mechanism still raises concerns, among others, regarding impartiality and fairness, as required by the Aarhus Convention (the ‘old problems’). The conclusion is that although the Aarhus Regulation administrative review mechanism was introduced in order to strengthen access to justice in environmental matters in the EU legal system, it does not significantly contribute to this aim. Instead, it constitutes the mechanism of self-review for the EU institutions and bodies. Nevertheless, it is argued that this failure is inevitable and lays down in its very foundations. In practical terms, it seems that the mechanism designed to ‘provide for access to judicial or other review procedures for challenging acts and omissions by private persons’ effectively contributes to another than access to justice component of environmental democracy, mainly access to information.\u0000Access to justice, EU legal remedies, environmental law, administrative review mechanism, Aarhus Convention, Aarhus Regulation","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45191495","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}
H. Anisimova, V. Haltsova, Olha Donets, I. Samoshchenko, Oleg Shynkarov
The article examines the ecological and legal component of criminal offenses under martial law, since the risk of man-caused accidents and ecological disasters, which threaten security, including environmental and human ones, as well as international legal order, is increasing owing to aggressor-country army’s deliberate actions. It has been argued that the consequences of the military conflict for the environment, human life and health are already considered catastrophic. It has been proven that the ecological crisis should be recognized as an existential threat to the national security of Ukraine. Pressing issues of forming interdisciplinary (synergistic) connections between environmental and criminal law science and other areas of scientific knowledge have been covered. Considering the outlined problem is becoming of a significant relevance due to the fact that certain criminal offenses cause damage to the environment, thus, leading to its destruction. It is a matter of such criminal offence compositions as laws of the war violation (Article 438 of the Criminal Code of Ukraine (CCU) and ecocide (Article 441 of the CCU)). The expediency of improving the current criminal legislation and legal liability mechanism, which would satisfy the proportionality requirement, namely commensurate punishment of severity and consequences of the committed acts, has been substantiated. The expediency of further criminal law prohibition of ecocide in the new CCU Draft has been motivated, taking into account the degree of social danger as well as the severity of large-scale and long-term consequences for the environment and the entire humanity. It has been proven that the state’s environmental function to ensure environmental security, fundamental constitutional environmental rights of citizens, as well as to maintain ecological balance and sustainable development on Ukraine’s territory should become today’s narrative, with the environmental security component to be further included into the sectoral state restoration programs in order to form a new environmental law under martial law both for Ukraine and European countries. Based on our own conclusions and generalizations, proposals and recommendations for improving the current national legislation and greening the sectoral national policy components have been provided. It has been argued that legal mechanisms for fixing and determining the amount of environmental damage caused to natural resources and complexes as a result of armed aggression and hostilities under martial law should be established at the legislative level. environmental safety, environmental damage, environmental damage, environmental right protection, country’s natural resource potential restoration, severity of consequences, state’s environmental function, environmental and legal conflictology
{"title":"Article: An Environmental and Legal Component of Criminal Offenses in Conditions of the Russian-Ukrainian International Military Conflict","authors":"H. Anisimova, V. Haltsova, Olha Donets, I. Samoshchenko, Oleg Shynkarov","doi":"10.54648/eelr2023004","DOIUrl":"https://doi.org/10.54648/eelr2023004","url":null,"abstract":"The article examines the ecological and legal component of criminal offenses under martial law, since the risk of man-caused accidents and ecological disasters, which threaten security, including environmental and human ones, as well as international legal order, is increasing owing to aggressor-country army’s deliberate actions. It has been argued that the consequences of the military conflict for the environment, human life and health are already considered catastrophic. It has been proven that the ecological crisis should be recognized as an existential threat to the national security of Ukraine. Pressing issues of forming interdisciplinary (synergistic) connections between environmental and criminal law science and other areas of scientific knowledge have been covered.\u0000Considering the outlined problem is becoming of a significant relevance due to the fact that certain criminal offenses cause damage to the environment, thus, leading to its destruction. It is a matter of such criminal offence compositions as laws of the war violation (Article 438 of the Criminal Code of Ukraine (CCU) and ecocide (Article 441 of the CCU)). The expediency of improving the current criminal legislation and legal liability mechanism, which would satisfy the proportionality requirement, namely commensurate punishment of severity and consequences of the committed acts, has been substantiated. The expediency of further criminal law prohibition of ecocide in the new CCU Draft has been motivated, taking into account the degree of social danger as well as the severity of large-scale and long-term consequences for the environment and the entire humanity.\u0000It has been proven that the state’s environmental function to ensure environmental security, fundamental constitutional environmental rights of citizens, as well as to maintain ecological balance and sustainable development on Ukraine’s territory should become today’s narrative, with the environmental security component to be further included into the sectoral state restoration programs in order to form a new environmental law under martial law both for Ukraine and European countries.\u0000Based on our own conclusions and generalizations, proposals and recommendations for improving the current national legislation and greening the sectoral national policy components have been provided. It has been argued that legal mechanisms for fixing and determining the amount of environmental damage caused to natural resources and complexes as a result of armed aggression and hostilities under martial law should be established at the legislative level.\u0000environmental safety, environmental damage, environmental damage, environmental right protection, country’s natural resource potential restoration, severity of consequences, state’s environmental function, environmental and legal conflictology","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45784828","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}
To protect the inhabitants of The Netherlands against ‘dangerous climate change’, the Hague District Court (the ‘Court’) in the ‘climate case of the century’ (Milieudefensie v. Shell, 2021) resorted to paradoxical lex ferenda interpretations of Dutch tort law. The court found binding ‘unwritten’ corporate norms in documentation without any legal status, while it acknowledged that the corresponding multitude of demanding ‘written’ (i.e., statutory) norms are nonbinding, do not apply to private entities, and do not reflect custom. In dictating corporate climate policymaking, the court rewrote Dutch tort law, ignored its limits, and expanded it in ways that are not consistent with the Dutch Supreme Court’s rulings. Based on the proposition that CO2 emissions cause ‘dangerous’ climate change, which is not a term used by the Intergovernmental Panel on Climate Change (IPCC), the judgment is a lengthy, but in the end circular argument: there is a duty of care because emission cause danger, and emissions cause danger because there is a duty of care. Milieudefensie’s case was built chiefly on a Dutch tort law case known as the ‘Cellar Hatch’ case. In the Cellar Hatch case, the Dutch Supreme Court first articulated the endangerment doctrine that resembles Learned Hand’s negligence calculus. In Milieudefensie v. Shell, the Hague District Court applied the endangerment doctrine, but constructed a climatespecific version. To enforce the urgent CO2 emission reductions deemed scientifically necessary, the Court circumvented the logical consequences of the applying the Cellar Hatch’s endangerment doctrine by referring to human rights, consensus and the concept of ‘partial responsibility’. The judgment does not fit into the system of Dutch civil law, and reasons away all barriers to imposition of the remedy sought by Milieudefensie, including causation requirements. With the Court’s moral reconstruction of the endangerment doctrine to ‘save the planet’, the Court opened the hatch, and fell into the dark cellar, along with the entire body of Dutch tort law, democracy, the rule of law, the rights and interests of citizens and the economy. In short, based on court-made ‘unwritten’ law, the Court concocted a result-oriented mix of science, law and expanded ‘soft laws’ to find an unlawful act without duly considering its plausible lawfulness and justification, entertained a vague, multi-faceted concept of climate-related damage without carefully examining its coherence, and constructed a causal link between the act and the damage based on the act’s presumed unlawfulness. Ironically, given the way markets work, the court’s judgment may well increase CO2 emissions, and thus not have any favourable effect on the climate, but it will restrict citizen’s rights to participate in public affairs and impose a potentially large burden on the economy. Endorsing perceived consensus around a moral imperative to reduce emissions, the Court did not confirm, but merely assumed the ef
{"title":"Article: The Hague District Court’s Judgment in the ‘Climate Case of the Century’: How a Dutch Court Fell Through the Cellar Hatch (Part 1)","authors":"L. Bergkamp","doi":"10.54648/eelr2023001","DOIUrl":"https://doi.org/10.54648/eelr2023001","url":null,"abstract":"To protect the inhabitants of The Netherlands against ‘dangerous climate change’, the Hague District Court (the ‘Court’) in the ‘climate case of the century’ (Milieudefensie v. Shell, 2021) resorted to paradoxical lex ferenda interpretations of Dutch tort law. The court found binding ‘unwritten’ corporate norms in documentation without any legal status, while it acknowledged that the corresponding multitude of demanding ‘written’ (i.e., statutory) norms are nonbinding, do not apply to private entities, and do not reflect custom. In dictating corporate climate policymaking, the court rewrote Dutch tort law, ignored its limits, and expanded it in ways that are not consistent with the Dutch Supreme Court’s rulings. Based on the proposition that CO2 emissions cause ‘dangerous’ climate change, which is not a term used by the Intergovernmental Panel on Climate Change (IPCC), the judgment is a lengthy, but in the end circular argument: there is a duty of care because emission cause danger, and emissions cause danger because there is a duty of care.\u0000Milieudefensie’s case was built chiefly on a Dutch tort law case known as the ‘Cellar Hatch’ case. In the Cellar Hatch case, the Dutch Supreme Court first articulated the endangerment doctrine that resembles Learned Hand’s negligence calculus. In Milieudefensie v. Shell, the Hague District Court applied the endangerment doctrine, but constructed a climatespecific version. To enforce the urgent CO2 emission reductions deemed scientifically necessary, the Court circumvented the logical consequences of the applying the Cellar Hatch’s endangerment doctrine by referring to human rights, consensus and the concept of ‘partial responsibility’. The judgment does not fit into the system of Dutch civil law, and reasons away all barriers to imposition of the remedy sought by Milieudefensie, including causation requirements. With the Court’s moral reconstruction of the endangerment doctrine to ‘save the planet’, the Court opened the hatch, and fell into the dark cellar, along with the entire body of Dutch tort law, democracy, the rule of law, the rights and interests of citizens and the economy.\u0000In short, based on court-made ‘unwritten’ law, the Court concocted a result-oriented mix of science, law and expanded ‘soft laws’ to find an unlawful act without duly considering its plausible lawfulness and justification, entertained a vague, multi-faceted concept of climate-related damage without carefully examining its coherence, and constructed a causal link between the act and the damage based on the act’s presumed unlawfulness. Ironically, given the way markets work, the court’s judgment may well increase CO2 emissions, and thus not have any favourable effect on the climate, but it will restrict citizen’s rights to participate in public affairs and impose a potentially large burden on the economy. Endorsing perceived consensus around a moral imperative to reduce emissions, the Court did not confirm, but merely assumed the ef","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45322976","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}
This article highlights certain challenges as regards the reconciliation between concerns of climate change, energy security and biodiversity protection, drawing on case law of the Court of Justice of the European Union (CJEU) and the Danish experiences regarding onshore wind energy installations. The EU species protection rules are by many perceived as an obstacle to wind energy development as also reflected in the 2022 Commission proposal to amend the Renewable Energy Directive. However, it is not evident that the proposal will solve the challenges of accommodating the strict direct species protection of, in particular, Annex IV species and birds against deliberate killing or disturbance as determined by the CJEU. The article suggests that rather than setting aside the general environmental impact assessment (EIA) and appropriate assessment requirements for Natura 2000 sites, there is a need to revisit the Birds and Habitats Directives, in particular as regards ‘deliberate killing or disturbance’ caused by non-intentional activities with a view to the population level as opposed to the individual specimen level. European Union, Species protection, Biodiversity, Renewables, Wind energy
{"title":"Article: EU Species Protection Law and Wind Energy: Current Challenges and Danish Experiences","authors":"H. Anker, Birgitte Egelund Olsen","doi":"10.54648/eelr2023002","DOIUrl":"https://doi.org/10.54648/eelr2023002","url":null,"abstract":"This article highlights certain challenges as regards the reconciliation between concerns of climate change, energy security and biodiversity protection, drawing on case law of the Court of Justice of the European Union (CJEU) and the Danish experiences regarding onshore wind energy installations. The EU species protection rules are by many perceived as an obstacle to wind energy development as also reflected in the 2022 Commission proposal to amend the Renewable Energy Directive. However, it is not evident that the proposal will solve the challenges of accommodating the strict direct species protection of, in particular, Annex IV species and birds against deliberate killing or disturbance as determined by the CJEU. The article suggests that rather than setting aside the general environmental impact assessment (EIA) and appropriate assessment requirements for Natura 2000 sites, there is a need to revisit the Birds and Habitats Directives, in particular as regards ‘deliberate killing or disturbance’ caused by non-intentional activities with a view to the population level as opposed to the individual specimen level.\u0000European Union, Species protection, Biodiversity, Renewables, Wind energy","PeriodicalId":53610,"journal":{"name":"European Energy and Environmental Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49179764","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：