Distributional choices in EU climate change law and policy : towards a principled approach? / Javier de Cendra de Larragán.
2011
KJE6246 .D4 2011 (Map It)
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Title
Distributional choices in EU climate change law and policy : towards a principled approach? / Javier de Cendra de Larragán.
Published
Alphen aan den Rijn, the Netherlands : Kluwer Law International, [2011]
Distributed
Frederick, MD : Sold and distributed in North, Central, and South America by Aspen Publishers
Copyright
©2011
Call Number
KJE6246 .D4 2011
ISBN
9789041133373 (hardcover : acid-free paper)
9041133372 (hardcover : acid-free paper)
9041133372 (hardcover : acid-free paper)
Description
xii, 541 pages ; 25 cm.
System Control No.
(OCoLC)696942678
Bibliography, etc. Note
Includes bibliographical references (pages [505]-536) and index.
Record Appears in
Table of Contents
List of Abbreviations
xxi
ch. 1
General Introduction
1
1.
Introduction
1
2.
Distributional Choices in Climate Change Policy
2
2.1.
A Provisional Definition of Distributional Choices in the Context of Climate Change Policy
2
2.2.
Varieties of Distributional Choices in Climate Change Policy
3
3.
The Relationship between Distributional Choices, Law and Legal Principles
5
4.
Justification for Undertaking This Research
6
5.
A Focus on EU Law
7
6.
Main Research Questions
11
7.
Methodology and Structure
11
ch. 2
Climate Change, Climate Change Policy and Distributional Choices
15
1.
Introduction
15
2.
An Overview of the Climate Change Problem: Causes, Impacts and Responses
16
2.1.
Definition of Climate Change
16
2.2.
Causes of Climate Change
16
2.3.
Impacts of Climate Change
17
2.3.1.
Impacts of Climate Change on Sectors
17
2.3.2.
Impacts across Regions
18
2.3.3.
Estimated Benefits and Costs of Impacts from Climate Change and Their Distribution
19
2.4.
Responses to Climate Change
20
2.4.1.
Adaptation
20
2.4.2.
Mitigation
21
2.4.3.
Relationship between Mitigation, Adaptation and Sustainable Development
23
2.4.4.
Interim Conclusions
24
3.
The Policy-Relevant Characteristics of Climate Change Policy
25
3.1.
Climate Change and Uncertainty
25
3.2.
The Problem of Irreversibility
25
3.3.
Climate Change Is a Long-Term Problem
26
3.4.
Climate Protection Is a Global Public Good
26
3.5.
Climate Change Is Mainly Caused by the Use of Fossil Fuels
28
3.6.
Climate Change Is Closely Linked to Considerations of Equity
29
3.6.1.
Varieties of Justice
29
3.6.2.
Criteria of Justice
29
3.7.
Main Barriers for the Adoption of Effective Mitigation Policies
30
3.8.
Interim Conclusions
32
4.
The Institutions Involved in Designing and Implementing Climate Change Policy
33
5.
Setting the Goals of Climate Change Policy
34
5.1.
Fixing the Goals
34
5.2.
Rationales for the Adoption of Specific Goals
36
5.2.1.
Science-Based Considerations
36
5.2.2.
Economic Considerations
37
5.2.3.
Political Considerations
38
5.2.4.
Ethical Considerations
39
5.2.5.
Interim Observations
41
6.
Burden Sharing in Climate Change (Mitigation) Policy
41
6.1.
Criteria for Burden Sharing Proposed in the Literature
41
6.2.
Lessons Stemming from an Analysis of Specific Proposals for Burden Sharing Put Forward in the Literature
45
6.3.
Extension of the Problem of Burden Sharing in Mitigation Policy
46
7.
Instruments of Climate Change (Mitigation) Policy
47
7.1.
Choice of Instruments
47
7.2.
The Need for Instrument Mixes
48
7.3.
Evaluating Interactions between Instruments
49
7.4.
Distributional Impacts of Instruments
50
7.5.
Links between Policy Areas
51
7.6.
Interim Conclusions
51
8.
Conclusions and a Definition of Distributional Choices in Climate Change Policy
52
ch. 3
Law, Legal Principles and Distributional Choices
55
1.
Introduction
55
2.
Some Methodological Clarifications Regarding the Concept of Law Underlying This Book
56
2.1.
Concepts of Law
56
2.2.
Law as Order
59
2.3.
Law as the Command of the Sovereign
59
2.4.
Law as a Just Proportion in the Distribution of Benefits and Burdens
60
2.5.
The Concept of Law Guiding the Research
63
3.
Law as Justice
64
3.1.
Law as a Rational Ordinance
64
3.1.1.
Rationality and the Policymaker
66
3.1.1.1.
Constitutionalist v. Legalism
70
3.1.1.2.
Conclusion
71
3.1.2.
The Principle of Proportionality as a Tool to Assess Teleological Rationality
71
3.1.2.1.
The First Dimension of the Principle of Proportionality: The Test Of Appropriateness
73
3.1.2.2.
The Second Dimension of the Test of Proportionality: Test of Necessity
73
3.1.2.3.
The Third Dimension of the Test of Proportionality: Proportionality Stricto Sensu
74
3.2.
Law as a Rational Ordinance for the Common Good
74
3.2.1.
The Rise and Demension of the Principle of Proportionality: The Test of Appropriateness
74
3.2.2.
The Environment, Climate Change and the Common Good
77
3.2.3.
Limits to the Scope of the Common Good?
77
3.2.3.1.
The Common Good and Cosmopolitan Justice
78
3.2.3.2.
Intergenerational Justice
80
3.2.3.3.
Relevance of Theories of Intergenerational Justice for Law
80
3.2.4.
Proportionality in the Distribution of Burdens and Benefits by Law
82
3.3.
Law as a Rational Ordinance for the Common Good Isseud by the Legislator
85
3.4.
The Role of the Judiciary
86
4.
Notion and Functions of Legal Principles
87
4.1.
The Notion of Legal Principle
88
4.2.
Functions of legal Principles
93
4.2.1.
Legal Principles Guiding the Policymaker
93
4.2.2.
Legal Principles Guiding the Courts
95
5.
The Analytical Framework Based on Legal Principles to Describe, Analyse and Prescribe Distributional Choices and Its Application to EU Climate Change Law
96
6.
Conclusions
99
ch. 4
Legal Principles of EU Law Relevant for Describing, Assessing and Testing Distributional Choices in Climate Change Law and Policy
101
1.
Introduction
101
2.
The Analysis of Legal Principles in EU Law
102
2.1.
Introduction
102
2.2.
The Particular Importance of Legal Principles in EU Law
103
2.3.
Types of Legal Principles in EU Law
103
2.4.
Legal Principles in the Hierarchy of EU Rules
105
2.5.
Roles of Legal Principles in EU Law
105
2.5.1.
Roles of Constitutional Principles
106
2.5.2.
In the Law-Making Process
108
2.5.3.
In Adjudication
110
2.5.3.1.
Gap-Filling Function
110
2.5.3.2.
Legal Principles as Aid for Interpretation
111
2.5.3.3.
Legal Principles as Grounds for Interpretation and Review
111
2.5.4.
Levels at Which Principles May be Relied upon by Applicant
113
3.
Law as a Search for a Proportion between Ends and Means
114
3.1.
The Test of Appropriateness
114
3.1.1.
The Test of Intensity
114
3.1.2.
The Test of Quality
115
3.1.2.1.
The Principle of Sustainable Development
116
3.1.2.1.1.
The Concept and Dimensions of Sustainable Development
116
3.1.2.1.2.
The Legal Significance of Sustainable Development in EC Law
119
3.1.2.2.
The Principle of Integration
124
3.1.2.2.1.
Integration and Climate Change
124
3.1.2.2.2.
The Principle of Integration in EC Law
126
3.1.2.2.3.
The Relation between Integration and Other Relevant Legal Principles in the Context of Distributional Choices in Climate Change Law Policy
130
3.1.2.3.
The Precautionary Principle
132
3.1.2.3.1.
The Precautionary Principle, Climate Change and Future Generations
132
3.1.2.3.2.
The Precautionary Principle and Future Generations
133
3.1.2.3.3.
The Precautionary Principle, Intergenerational Equity and the UNFCCC
133
3.1.2.3.4.
The Precautionary Principle in EC Law
134
3.1.2.4.
The Principle of Prevention
140
3.1.2.4.1.
Prevention and Climate Change
140
3.1.2.4.2.
Prevention in EC Law
140
3.1.2.5.
The Polluter Pays Principle
142
3.1.2.5.1.
The Polluter Pays Principle and Distributional Choices in Climate Change Policy
142
3.1.2.5.2.
The Polluter Pays Principle in EU Law
144
3.1.2.5.3.
The Polluter Pays Principle and State Aid
145
3.1.2.5.4.
The Polluter Pays Principle as a Criterion to Distribute Costs between Polluters
145
3.1.2.6.
The Principle of Rectification at Source
148
3.1.3.
The Test of Probability
151
3.1.3.1.
The Principle of Legal Certainty
152
3.1.3.2.
The Principle of Legitimate Expectations
153
3.2.
The Test of Necessity
155
3.2.1.
The Principle of Conferral (or Attribution)
155
3.2.2.
The Principle of Subsidiarity
155
3.2.2.1.
The Protocol on the Principles of Subsidiarity and Proportionality
156
3.2.2.2.
The Practice of the Commission
157
3.2.2.3.
Subsidiarity in the Legal Literature
158
3.2.2.4.
Subsidiarity in Law and Economics Literature
161
3.2.3.
Efficiency, Cost-Effectiveness and Climate Change Policy
162
3.2.3.1.
In Relation to Climate Change Law and Policy
162
3.2.3.2.
Efficiency, Cost-Effectiveness and Equity in EC law. The Increasing Use of Integrated Impact Assesments
164
4.
Law as a Search for a Proportion in the Distribution of Benefits and Burdens
166
4.1.
The Principle of Proportionality in the Distribution between States
166
4.1.1.
The Principle of Intergenerational Equity
166
4.1.1.1.
The Principle of Intergenerational Equity in International Law
166
4.1.1.2.
The Principle of Intergenerational Equity in EU Law
166
4.1.1.3.
The Principle of Intergenerational Equity in the Academic Literature
168
4.1.1.4.
Avenues to Effectively Implement the Doctrine of Intergenerational Equity in Domestic Law
171
4.1.2.
The Principle of Common but Differentiated Responsibilities
173
4.1.2.1.
Common but Differenctiated Responsibilities in International Law
173
4.1.2.2.
The Principle Responsibilities and the Principle of Solidarity
178
4.1.2.3.
Common but Differentiated Responsibilities in EU Law
181
4.1.3.
The Principle of Solidarity
185
4.1.4.
The Principle of Loyal Cooperation
187
4.2.
Proportionality in the Distribution of Burdens between Firms and Individuals
188
4.2.1.
The Principle of Proportionality in the Distribution of the Burdens
188
4.2.1.1.
Solidarity among EU Citizens
188
4.2.1.2.
Proportionality in the EU Law-Making Process
189
4.2.1.3.
Proportionality in the Case Law of the EU Courts
192
4.2.1.3.1.
The Principle of Proportionality in Case Law
192
4.2.1.3.2.
Proportionality, Fundamental Rights and Fundamental Freedoms
197
4.2.1.3.3.
Proportionality in Burden Sharing in the Case Law of the ECJ
200
4.2.2.
The Principle of Equal Treatment
201
4.2.2.1.
The Principle of Equal and European Courts
201
4.2.2.2.
The Test of Equality
202
4.2.2.3.
The Intensity of Review
206
4.2.2.3.1.
The Right of the EU to Legislate Step-by-Step
206
4.2.2.3.2.
The Discretion of EU Institutions
207
5.
Law as a Search for a Proportion in the Participation of Affected Parties
208
5.1.
Within the EU
208
5.1.1.
Public Participation
208
5.1.1.1.
Public Participation and Distributional Choices
208
5.1.1.2.
Public Participation in EU Law
209
5.1.2.
Access to Justice in EU Courts to Challenge Violation of Procedural Environmental Rights
211
5.1.3.
Principles of Environmental Justice in EU Law
212
5.1.3.1.
Introduction
212
5.1.3.2.
Environmental Justice in the EU
213
5.2.
Procedural Justice beyond the EU
215
6.
Conclusions
217
ch. 5
The EU Approach to International Burden Sharing: An Analysis from the Perspective of Legal Principles
221
1.
Introduction
221
2.
The EU Position in the International Climate Negotiations Pursuant to the Kyoto Protocol
222
2.1.
The EU Approach to Mitigation
222
2.2.
The EU Position towards Financing Adaptation in Third Countries
224
2.3.
Interim Observations
225
3.
The EU Position in the International Negotiations for the Post-2012 Climate Change Regime
226
3.1.
The International Negotiation Process on Burden Sharing
226
3.2.
The Position of the EU in the International Negotiations
228
3.2.1.
The Position of the EU Regarding the Long-Term Target
228
3.2.2.
The Position of the EU Regarding Burden Sharing in the International Negotiations
230
3.2.2.1.
Burden Sharing in Mitigation among Developed Countries
230
3.2.2.2.
Burden Sharing among Developing Countries
234
3.2.2.3.
The EU Position towards Other Elements Related to Burden Sharing in Mitigation
235
3.2.2.3.1.
The CDM and Sectoral Agreements
236
3.2.2.3.2.
Land Use, Land Use Change and Forestry
237
3.2.2.3.3.
Reduced Emissions from Deforestation and Forest Degradation and Conservation
238
3.2.2.3.4.
Biofuels
240
3.2.2.4.
The EU Position towards Adaptation
243
3.2.2.5.
The EU Position towards Financing Climate Change Policies in Developing Countries
244
3.3.
Interim Conclusions
246
3.4.
Copenhangen and Beyond
247
4.
An Exploration of the EU Position on Burden Sharing from the Perspective of the Meta-principle of Proportionality
250
4.1.
A Proportion between Means and Ends
251
4.1.1.
Appropriateness
251
4.1.1.1.
The Intensity
251
4.1.1.2.
The Quality
252
4.1.1.2.1.
Sustainable Development
252
4.1.1.2.2.
Integration
257
4.1.1.2.3.
The Polluter Pays Principle
267
4.1.1.2.4.
The Principle of Recitification at Source
268
4.1.1.3.
The Probability of Achieving the End
269
4.1.1.3.1.
The Test of Probability and Long-Term Targets
269
4.1.1.3.2.
The Test of Probability and the EU Post-2012 Strategy
270
4.1.2.
The Necessity of the EU Approach to Burden Sharing
273
4.1.2.1.
The Test of Necessity
273
4.1.2.2.
The Principles of Attribution and Subsidiarity
273
4.1.2.2.1.
Attribution and the EU Position at the International Level
273
4.1.2.2.2.
Subsidiarity and the Long-Term Target
274
4.1.2.2.3.
Subsidiarity and the Position of the EU in Burden Sharing
276
4.2.
A Proportion in the Distribution
281
4.2.1.
The Principle of Intergenerational Equity and EU Climate Change Mitigation Law
281
4.2.2.
The Principle of Common but Differentiated Responsibilities and the Position of the EU in the International Climate Change Negotiations Law
284
5.
Conclusions
291
ch. 6
Effort Sharing between Member States in EU Climate Change Law and Policy: An Analysis from the Perspective of Legal Principles
295
1.
Introduction
295
2.
The First Burden-Sharing Agreement
296
3.
The Transition from the First EU BSA to the Commission's Proposal on a New EU BSA
298
4.
The Second Burden-Sharing Agreement
301
5.
A Comparison between the First and Second BSA
301
6.
Analysis from the Perspective of the Meta-principle of Proportionality
303
6.1.
A Proportion between Means and Ends
303
6.1.1.
The Ends
303
6.1.2.
The Means
304
6.1.3.
The Test of Appropriateness
304
6.1.3.1.
The Intensity
305
6.1.3.2.
The Quality
309
6.1.3.2.1.
The Principle of Integration
309
6.1.3.2.2.
The Polluter Pays Principle
314
6.1.3.2.3.
The Principle of Rectification at Source
315
6.1.3.3.
The Probability of Achieving the Ends
315
6.1.4.
The Test of Necessity
316
6.2.
A Proportion in the Distribution of the Burden
318
6.2.1.
The Principle of Solidarity and CBDR
318
6.2.2.
The Polluter Pays Principle
323
6.2.3.
The Principle of Loyal Cooperation
324
6.2.3.1.
Introduction
324
6.2.3.2.
Responsibility of the EC under International Law and under Article 4 of Kyoto Protocol
326
6.2.3.2.1.
The Position of the EC under the Kyoto Protocol
326
6.2.3.2.2.
The Compliance Regime of the Kyoto Protocol and Consequences for the EC
329
6.2.3.3.
The Role of Article 10 EC in Ensuring EC Compliance with Its Kyoto Target
332
6.2.3.4.
Compliance and the Burden-sharing Agreement for the Period 2012-2020
339
6.2.3.5.
Conclusions on the Principle of Loyal Cooperation
341
7.
Conclusions
341
ch. 7
Distributional Choices in EU Climate Change Law and Policy: An Analysis from the Perspective of Legal Principles
343
1.
Introduction
343
2.
The Basic Framework to Make Distributional Choices in EU Law
344
2.1.
Regulatory Measures as Means to Make Distributional Choices: The Evolution of EU Climate Change Policy View from the Perspective of the Meta-principle of Proportionality
345
2.1.1.
Broadening
346
2.1.1.1.
Measures in the Energy Sector
347
2.1.1.2.
Measures in the Transport Sector
350
2.1.1.3.
Measures in the Agricultural Sector
353
2.1.1.4.
Measures in the Industrial Sector
356
2.1.2.
Deepening
357
2.1.2.1.
The Evolution of Mitigation Targets
357
2.1.2.2.
From Soft-Law to Legally Binding Measures
358
2.2.
EU Spending on Climate Change. The Framework to Make Distributional Choices
362
2.2.1.
EU Expenditures on Climate Change
362
2.2.2.
Indirect Distribution Choices Made by the EU. The EC Legal Framework Controlling Distributional Choices Made by Member States through Taxes and Subsidies
364
3.
Analysis of Distributional Choices from the Perspective of the Meta-principle of Proportionality
374
3.1.
The Ends and Means of EU Climate Change Policy
374
3.1.1.
The Test of Appropriateness
376
3.1.1.1.
The Intensity
376
3.1.1.1.1.
The Link between Aggregate Targets and Sectoral Targets
377
3.1.1.1.2.
The Increasing Attention Paid to Distributional Impacts of Legislation
380
3.1.1.1.3.
The Involvement of Stakeholders in Making Distributional Choices
382
3.1.1.1.4.
The Increasing Use of MBIs and Consequences for Distributional Choices
383
3.1.1.1.5.
Monitoring and Reporting Requirements
384
3.1.1.1.6.
Penalties at EU Level
385
3.1.1.1.7.
Observations Regarding the Test of Intensity
385
3.1.1.2.
The Quality
385
3.1.1.2.1.
The Principle of Integration and EU Climate Policy
385
3.1.1.2.2.
The Increasing Role of the Polluter Pays Principle in Distributional Choices in EU Climate Policy
392
3.1.1.2.3.
The Principle of Rectification at Source
406
3.1.1.3.
The Probability of Achieving the Ends
408
3.1.1.3.1.
The Probability of Achieving the Ends and Distributional Choices Affecting Production
408
3.1.1.3.2.
The Probability of Achieving the Ends and Distributional Choices Affecting the Consumption Side
414
3.1.2.
The Test of Necessity: Attribution, Subsidiarity and Proportionality
416
3.1.2.1.
Attribution
416
3.1.2.2.
Subsidiarity and Proportionality
420
3.1.3.
Conclusions from the Application of the First Dimension of Meta-Proportionality
424
3.2.
The Second Dimension of the Meta-principle of Proportionality: A Proportion in the Distribution of the Burdens
426
3.2.1.
The Principle of Proportionality in the Distribution
426
3.2.1.1.
Proportionality as a Principle Used by the Legislator
426
3.2.1.2.
Proportionality as a Balancing Process
436
3.2.1.3.
Proportionality as a Principle Used by the Courts
437
3.2.2.
The Principle of Equality
437
3.2.2.1.
Equal Treatment as a Guiding Principle of Harmonization in EU Climate Policy
440
3.2.2.2.
Assessing EU Climate Policy from the Perspective of the Principle of Equality
450
3.2.2.1.
Equality and the Scope of Measures
451
3.2.2.2.
Equality and Allocation Rules in the EU ETS
456
3.2.3.
Conclusion from the Application of the Second Dimension of Proportionality
459
3.3.
The Third Dimension of the Meta-principle of Proportionality: Distributional Choices in EU Climate Change Policy and Public Participation
460
3.3.1.
Public Participation in the Making of EU Climate Change Policy
460
3.3.2.
Access to Justice
465
3.3.3.
Conclusions from the Third Dimension of the Meta-principle of Proportionality
468
4.
General Conclusions
469
ch. 8
Distributional Choices in EU Climate Change Policy: Towards a More Principled Approach
471
1.
The Research Questions Investigated in This Book
471
2.
The Role of Legal Principles in Relation to Distributional Choices of Climate Change Policy
472
3.
Legal Principles in EU Law
474
4.
Are Distributional Choices Made in EU Law in line with the Requirements Imposed by the Relevant Legal Principles?
475
4.1.
The First Distributional Choice: Burden Sharing between Generations
475
4.1.1.
Is the EU Approach to Burden Sharing between Generations in line with the Principles That Form the First Dimension of the Meta-principle of Proportionality?
475
4.1.2.
Is the EU Approach towards Burden Sharing between Generations in line with the Principles That Form the Second Dimension of Meta-proportionality?
478
4.1.3.
Is the EU Approach towards Burden Sharing between Generations in line with the Principles That Form the Third Dimension of Meta-proportionality?
478
4.2.
The Second Distributional Choice: Burden Sharing between Countries at International Level
479
4.2.1.
Is the EU Approach towards Burden Sharing at International Level in the with the Principles That Form the Meta-principle of Proportionality?
479
4.2.2.
Is the EU Approach towards the Potential Impacts That EU Climate Change Policy May Have on Developing Countries in line with the Legal Principles that Form the Meta-principle of Proportionality?
483
4.3.
The Third Distributional Choice: Is the EU Position towards Burden Sharing among EU Member States in line with the Principles That Form the Meta-principle of proportionality?
485
4.4.
The Fourth Distributional Choice: Is the EU Position towards Burden Sharing within the Internal Market in line with the Principles That Form the Meta-principle of Proportionality?
486
4.4.1.
Is the EU Position towards Burden Sharing in the Internal Market in line with the Principle That Form the First Dimension of the Meta-principle of Proportionality?
487
4.4.2.
Is the EU Position towards Burden Sharing in the Internal Market in line with the Principles That Form the Second Dimension of the Meta-principle of Proportionality?
489
4.4.3.
Is the EU Position towards Burden Sharing in the Internal Market in line with the Principles That Form the Third is Dimension of the Meta-principle of Proportionality?
490
5.
Are There Remaining Tensions between the Distributional Choices Taken (or Proposed to Be Taken), and Legal Principles of Community Law, and if so, Could Those Choices be Challenged before the European Courts?
491
6.
Is It Possible to Detect in Law, Policy Documents and Relevant Literature, the Emergence of New Legal Principles Which Could Provide Additional Guidance When Making, Evaluating and Testing Distributional Choices in Climate Change Law?
492
7.
Can an Analysis Based on Legal Principles be Used to Provide Recommendations to Policymakers Regarding the Content and Mode of Adoption of Distributional Choices? Could the Same Analysis be of Use for Courts When Reflecting on the Legality of Distributional Choices, and for Scholars to Structure Their Thinking on [ect.]
493
7.1.
Policy Recommendations in Order to Increase the Fit between Legal Principles and Distributional Choices
494
7.2.
Personal Carbon Trading and Mitigation: A Possible Way Forward
494
7.3.
Usefulness of This Research for Courts and Scholars
502
8.
General Conclusions and Suggestions for Further Research
503
Bibliography
505
Index
537