Copyright (c) 2002
Spring, 2002
32 Golden Gate U.L. Rev. 351
LENGTH: 28063 words
ARTICLE: RIO'S DECADE: REASSESSING THE 1992 EARTH SUMMIT: REASSESSING THE 1992 CLIMATE
CHANGE AGREEMENT: CONSENSUS AMONG MANY VOICES: ARTICULATING THE EUROPEAN
UNION'S POSITION ON CLIMATE CHANGE
NUNO S. LACASTA, SURAJE DESSAI & EVA POWROSLO*
* Nuno S. Lacasta is Senior Adviser for International Affairs at the
Portuguese Ministry for the Environment, and Visiting Professor of Comparative
Environmental Law at the American University's Washington College of Law
(WCL/AU). At the time of this writing he was European Of Counsel at the Center
for International Environmental Law (
SUMMARY:
... "We all recognize that climate change is one of the most threatening
issues that we are facing today... We cannot negotiate with the Climate! We
need to take action, now." ... The EU has historically supported both the
1992 United Nations Framework Convention on Climate Change (UNFCCC), as well as
its 1997 Kyoto Protocol. ... Agnethe Dahl, in analyzing the interplay between EC
competence and subsidiarity in the climate change arena, was led to conclude
that the subsidiarity principle has dominated the evolution of EU climate
policy. ... More recently, in the context of the Commission's intra-service
negotiation on a proposal for an emissions trading directive, DGs Environment,
Energy & Transport and
TEXT:
[*351]
ARTICLE
I. INTRODUCTION
"We all recognize that climate change is one of the most threatening
issues that we are facing today... We cannot negotiate with the Climate! We
need to take action, now." - Margot Wallstrom, European Commissioner for
Environment n1
"
[*352]
". . . Climate change is already upon us. But it can get much worse if we
fail to act." -
"The fight against the greenhouse effect cannot be delayed." - Jurgen
Trittin, German Environment Minister
As the above statements n2 from European leaders attest, the issue of climate
change ranks high on the continent's political agenda. In fact, the European
Union (EU) n3 and its Member States have for over a decade claimed domestic and
international leadership with regard to the challenge of global warming. n4 The
EU has historically supported both the 1992 United Nations Framework Convention
on Climate Change (UNFCCC), n5 as well as its 1997 Kyoto Protocol. n6 After the
Table 1: Phases of EU Climate Policy n12
|
Phases |
Milestone |
|
1988-1990 |
Emergence of scientific concern |
|
1990-1992 |
Negotiation of UNFCCC |
|
1992-1995 |
Entry into force and First Conference |
|
|
of the Parties (COP-1) |
|
1995-1997 |
Negotiations of |
|
1997-Present |
Preparations for Protocol entry into |
|
|
force and implementation |
[*354]
The Convention's ultimate objective is to "achieve stabilization of
greenhouse gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system." n13 In the
face of mounting climate science n14 and in recognizing that the UNFCCC was
only a first step in addressing the challenge of global warming, the
international community decided to take on more stringent commitments and
adopted the Kyoto Protocol in 1997. This landmark international agreement
obliges developed countries and economies in transition (Annex B Parties) to
reduce their overall emissions of six greenhouse gases (GHGs) n15 to "at
least" five percent n16 below 1990 levels during the 2008-2012
"commitment period." n17 In order to meet their commitments in an
economically efficient manner, Parties can make use of market-based instruments
known as the Kyoto mechanisms (International Emissions Trading, Joint
Implementation and the Clean Development Mechanism). n18 Parties can also
choose to use toward their emission reduction commitments activities enhancing
the ability of forests to store carbon (also known as land use change and
forest activities or "sinks"). n19 Such activities are currently
limited to afforestation, reforestation, and deforestation, although Article
3.4 leaves a door open for the inclusion of other activities. n20
[*355]
The Kyoto Conference raised the issue of climate change into the arena of
"high politics" with the involvement of inter alia U.S. President
Clinton, United Kingdom (UK) and Japan's Prime Ministers Blair and Hashimoto
and Germany's Chancellor Kohl. n21 The adoption of the Kyoto Protocol was seen
as a major success for international environmental cooperation, even though it
left myriad matters unfinished and nearly broke down at some critical stages.
n22 In November 1998, the Fourth Conference of Parties (COP-4) n23 to the FCCC
adopted the Buenos Aires Plan of Action (BAPA), an ambitious work program on
some of the key issues to be finalized by COP-6. n24 This work program was,
however, only finished at COP-7 in 2001, after a collapse of the negotiations
at COP-6 in late 2000. n25 As [*356] a result, Parties met at the
resumed COP-6 (COP-6.5), already without the U.S. as an active negotiating
Party, and reached agreement on a political package--the Bonn Agreement--on the
Protocol's operational rules. n26 This political agreement was later
complemented with legal texts--the Marrakech Accords--at COP-7 in late 2001.
n27 These agreements have paved the way for the ratification and entry into
force of the Protocol, which is expected in 2003.
This article attempts to provide an overview of key policy elements of the
European Union's climate policy since the adoption of the UNFCCC in 1992 (see
table 1 above). Section II discusses the main features of the EU as an actor
vis-a-vis its
II. THE EU AS AN INTERNATIONAL ACTOR
The EU is a sui generis international organization, which has been referred to
as a "supranational" organization. n28 Its characteristics are new to
international law in that it performs certain functions that are traditionally
within the realm of the sovereign state. n29 Notably, it has the power to adopt
law which has "direct effect" in the Member States, an act of implementation
by the states' authorities not being necessary. n30 [*357]
A. THE BASIS FOR COMMUNITY ACTION
The Treaty of the European Community (EC Treaty) n31 does not contain a single
legal basis for Community action in the area of climate change. Depending on
the nature of the individual measures, they have been based on a variety of
provisions, including, inter alia, Articles 71 (ex Article 75, Transport), 95
(ex Article 100a, Approximation of laws), 133 (ex Article 113, Common
commercial policy), as well as on the Community's environmental competence n32
as set out in Title XIX of the EC Treaty, especially Article 174 (ex Article
130r). Its paragraph 1 provides that community policy on the environment shall
contribute to pursuit of the following objectives:
. preserving, protecting and improving the quality of the environment;
. protecting human health;
. prudent and rational utilization of natural resources;
. promoting measures at international level to deal with regional or worldwide
environmental problems.
Paragraph 4 explicitly provides for international cooperation, inter alia
through the conclusion of treaties with third countries. Its first subparagraph
reads:
Within their respective spheres of competence, the Community and the
Article 175 (ex Article 130s) determines the general procedure for the adoption
of measures under Article 174, while Article 300 (ex Article 228) contains
special rules for the conclusion of agreements according to Article 174
paragraph 4.
B. EXCLUSIVE VERSUS SHARED COMPETENCE
One of the features of the EU that most clearly distinguishes it from a state
is the fact that the EU does not have comprehensive competence. On the
contrary, it has competency to the extent that Member States have granted it.
n33
In a few areas, the Member States have decided that the EU should be solely
responsible for dealing with all issues that may arise pertaining to that
particular subject matter ("exclusive" competence). This is arguably
the case, for example, of the common commercial, agricultural and fisheries
policies, n34 but not for the field of environmental policy. According to the
first paragraph of Article 174 (ex Article 130r), which determines the scope of
the Community's environmental competence, the EU environmental policy only
"contributes" to the conservation and improvement of the environment.
In addition, Article 176 EC Treaty (ex Article 130t) explicitly reserves the
Member States' right to adopt more stringent measures than those adopted by the
Community. n35 This is a case of "shared" or mixed competence between
the Community and its
It is important to note that for areas of shared competence, the EC Treaty
contains a presumption that the
EU competence is particularly limited in the crucial energy sector. In fact,
the Treaties do not contain any formal Community competence in this field.
Energy legislation has therefore been based on the - exclusive - EU competence
on internal market issues, n42 and attempts have been made to take
energyrelated measures on the basis of EU environmental powers. However, by
invoking the subsidiarity principle, Member States have frequently managed to
retain their sovereignty in all important areas. n43 As will be shown in detail
below (Section IV), EU policy proposals in this field have frequently failed or
have been considerably weakened. For instance, some Member States have, to
date, successfully prevented the adoption of a [*360]
Community-wide CO2/energy tax, which the Commission first suggested in 1991.
Similarly, the European energy efficiency program (SAVE) n44 was considerably
weakened as a direct result of Member States bringing the subsidiarity
principle into play. n45 Agnethe Dahl, in analyzing the interplay between EC
competence and subsidiarity in the climate change arena, was led to conclude
that the subsidiarity principle has dominated the evolution of EU climate
policy. n46
C. INTERNAL VERSUS EXTERNAL COMPETENCE
The internal competences of the EU are paralleled by external powers. Insofar
as it is competent to promulgate regulation within the Community, the EU can
also enter into negotiations and conclude treaties with other states and
international organizations. Because Community law preempts
As the external competence corresponds to the internal powers, the split of
competences described in the previous section also occurs in the external
sphere. Article 174, paragraph 4 expresses this by referring to "[the EC
and its
The UNFCCC and the Kyoto Protocol as well as other environmental treaties are
what can be termed "mixed" agreements. They cover a variety of
subject matters - including e.g. [*361] environmental protection
and trade, so that neither the EU nor its members have the exclusive power to
execute these accords. n48 In theory, only the EU is entitled to participate in
negotiations concerning matters of exclusive Community competence, while the
Member States are entitled to participate in negotiations in areas of exclusive
Because the clear determination of respective competences is virtually
impossible, the Presidency of the Council speaks on behalf of the Community and
its Member States in climate negotiations, conveying agreed upon common
positions. n53 Since such common positions affect in part areas of
D. NEGOTIATING CLIMATE CHANGE: INTERNAL AND EXTERNAL ORGANIZATION
1. Reaching a Common Position: The Council
Although the European Parliament's role has to some extent been strengthened by
recent treaty reforms, the Council of the European Union is still the most
powerful EU body. n56 The Council is the EU's primary decision-making,
legislative, and coordinating authority. It consists of a representative at
ministerial level of each
Decision-making procedures and Council voting rules vary in different areas of
EU competence. Most matters are now decided by qualified majority voting. n60
In the field of environmental regulation, the procedure of co-decision between
the Council and the European Parliament, which provides for qualified majority
voting within the Council, n61 is to be generally applied. n62 Article 175 (ex
Article 130s), paragraph 2, however, contains important exceptions that apply
when the Council [*363] must act unanimously on matters primarily
of a fiscal nature and "measures significantly affecting a Member State's
choice between different energy sources and the general structure of its energy
supply." In the context of climate negotiations, the Council plays a key
role both in the run-up to negotiations and in signing and ratifying the
relevant agreements. Before a negotiating session, the EU and its members meet
in Council formation to discuss and agree on a common position. The fact that
the Council was able at various stages of the climate negotiations to reach
agreement on specific internal climate policies, e.g. burden sharing among
Member States, has both ensured a common EU line and strengthened the EU's
leadership role during those negotiations. n63 However, this leadership is
sometimes much less effective in the "heat" of complex international negotiations,
in which a Party is expected to think and act quickly (see section VII, below).
The EU has often shown a lack of flexibility and expedition; it clearly has an
effectiveness gap in international negotiations on areas of mixed competence
like climate change. n64
The process of reaching a common position within the Council is characterized
by bargaining and uncertainty until the last moment. Success depends
considerably on the leadership exerted by the country holding the Presidency
n65 at a given moment, which in effect has to broker the deal among the other
Once an international agreement is reached, the Council is responsible for
signing and concluding the treaty or agreement. n68 Similar to the rules for
internal decision-making, the Council decides by a qualified majority. However,
it must act unanimously when the agreement covers a field for which unanimity
is required for the adoption of internal rules. n69 There have been arguments
over the question of whether the second paragraph of Article 175 EC Treaty (ex
Article 130s), which requires unanimity, applies to the conclusion of climate
agreements. When the UNFCCC was adopted, the
The Council legal service, on the other hand, held that Article 175, paragraph
1 governed and thus the qualified majority voting procedure applied. The
problem was resolved politically when the
2. Negotiating Internationally: The Role of Presidency
The Council is headed by the Presidency, which is held alternately by each
The Presidency coordinates the formation of the EU's common position and
presents it at international negotiations. n75 Its management of the process is
vital for the effectiveness of the EU negotiating stance. The Presidency
determines the agenda of the Council, chairs its sessions and coordinates the
Member States at negotiations. n76 Thus, the effectiveness of the EU in
international negotiations is influenced by the Presidency's internal
management and external negotiating skills and tactics. For example, in the
runup to
In terms of negotiating with third parties, the Presidency's leadership is also
conditioned by practical and political considerations. For instance, two of the
three Presidencies immediately [*366] before COP-7 (2001)--France
and Belgium--adopted considerably different coordination and negotiation
practices, perhaps reflecting the differences in capacities and posture between
a large and a medium Member State. France, which held the Presidency during the
second semester of 2000, at times n80 clearly pushed for what seemed like its
own domestic agenda in the internal EU coordination and watched the UK
unilaterally enter into tentative negotiations with the U.S. aimed at securing
agreement between the EU and the U.S. n81 On the other hand, Belgium, which
held the Presidency during the second semester of 2001, took a more
consensus-based approach internally and relied considerably on the assistance
of the European Commission (discussed below in Section IIIB) as well as on a
division of labor between Member States, especially at the technical level. n82
The rotation of the Presidency every six months in itself presents a problem,
because it has not allowed the EU's climate policy to develop in a coherent and
stable way, n83 and has not provided negotiating partners with a steady
arrangement. n84 This is unlikely to change in the foreseeable future.
III. KEY ACTORS WITHIN THE EU
A. MEMBER STATUS
The EU currently consists of 15 Member States, n85 the greenhouse gas emissions
patterns and energy mix and consumption [*367] of which vary
widely. n86 The disparity in emission characteristics, abatement costs,
possible impacts of climate change, and relative level of economic development
in the different Member States presents a significant obstacle to agreement on
a common climate policy, n87 and to a certain extent provides an illustration
of the climate change discussions at the global level. n88 Thus the resulting
variations in Member states' willingness and capability to reduce emissions (see
section V.B below). In addition, Member States' readiness to endow the EU with
further competences varies widely, with the
Ian Manners, discussing the UNFCCC negotiations in the early 1990s, divides the
Member States into "lead states" (mainly Germany, the Netherlands and
Denmark--after 1995 joined by the new Member States Sweden and Finland), n90
"support states" (primarily Italy and Belgium), "swing states"
(chiefly Spain, Ireland, Portugal and Greece), a "veto state," the UK
(which tended to position itself closer to the U.S. than to the EU, although
less so in recent years), and France shifting from an initial status as a
support state to one of a swing state. n91 It is beyond the scope of this paper
to illustrate comprehensively the positions of the fifteen Member States with
regard to the EU positioning on the climate negotiations. Suffice it to say,
however, that countries strongly pursue their national interests at the EU level
through Council meetings, and at the international level through constant,
tacit pressure on the country holding the Presidency to uphold the collective
EU [*368] position. n92 However, without the EU's collective
"weight" individual Member States' interests might simply not be able
to prevail on the negotiating arena in the face of such sizable negotiating
partners as the U.S., Japan, China or Brazil. In a recent statement German
Environment Minster Jurgen Trittin has illustrated this point quite effectively:
In such negotiations,
B. EUROPEAN COMMISSION
The European Commission (Commission) has been referred to as the motor of the
Community n94 and the guardian of the treaties. n95 It performs a broad range
of important functions, from elaborating legislative proposals to ensuring the
implementation of European law. It generally enjoys the exclusive right to
initiate legislative procedures. n96 Unlike the Council, the Commission does
not consist of
The Commission is organized in Directorates-General (DGs), n99 several of which
play a significant role in climate policy (e.g. the DGs for environment,
energy, taxation). Because of their different functions and clientele--some DGs
being closer to business representatives and others to environmental groups
n100--, agreement amongst them on climate policies has not always been easy to
reach, especially during the run up to the UNFCCC negotiations. n101 More
recently, in the context of the Commission's intra-service negotiation on a
proposal for an emissions trading directive, DGs Environment, Energy &
Transport and Enterprise were particularly active in brokering an internal
Commission deal.
In other environmental regimes, e.g. the ozone regime, the Council has mandated
the Commission to conduct the negotiations on behalf of the EU. n102 Within the
climate regime, however, Member States could not agree to follow the same procedure.
The Council did not grant the Commission's request to endow it with negotiating
authority n103 for the Kyoto Protocol negotiations, because many members
opposed transferring more competences to the EU level. n104 As described above,
n105 the Presidency rather than the Commission fulfills the task of
coordinating and presenting the EU position in climate negotiations. As a
result, the Commission plays a limited role. n106 It participates as equal
partner in establishing the EU common position, on which it and all Member
States must agree. n107 [*370]
The refusal to grant the Commission a negotiating mandate has considerably
weakened EU negotiating capacities. n108 While in the ozone negotiations the
Commission has facilitated agreement among the Member States, the guidance of
the EU by the rotating Presidency does not provide a stable foundation for the
process and prevents the development of a medium or long term negotiating
strategy (see section VII, below). n109
C. BUSINESS
The business community has taken an increasing interest in the climate
negotiations. n110 Early in the process, business focused on fighting any
restriction of fossil fuel use. The U.S.based Global Climate Coalition, a group
of multinationals that invested much money and efforts primarily in
discrediting climate science, is a prominent example of early business activity
in the climate regime. n111
In Europe, the Commission's proposal for an energy tax faced "some of the
most ferocious lobbying" n112 the EU had ever experienced when it became
clear that it would not be a "no regrets" measure, as the EU had
previously asserted. The well organized business lobby, led by the Union of
Industrial and Employer's Confederations of Europe (UNICE), played a major part
in the inclusion of a "conditionality clause" in the energy tax
proposal, which ensured that the measure would not be applied unless the major
OECD competitors introduced similar measures. n113 [*371]
Over time and with ever-increasing certainty in climate science, the picture
has become much more diverse. Many businesses have now accepted the need for
action. Some have begun developing renewable energy and energy efficiency
programs, set voluntary emission reduction targets and undertaken emission
trades. n114 After British Petroleum withdrew from the Global Climate
Coalition, n115 other companies followed suit, and the Business Environmental
Leadership Council was founded in the run-up to
More recent developments in Europe include the creation of the European
Business Council for a Sustainable Energy Future (e5) in 1996, which is
dedicated to sustainable development achieved primarily through energy
efficiency, renewable energy and sustainable housing and transport policies,
n117 and the launch of e-mission 55 in the run-up to COP-6.5, in July 2001.
E-mission 55 called for the adoption of meaningful political decisions by the COP
and entry into force of the Kyoto Protocol by 2002. n118 Both groups have a
substantial number of European members. n119
D. ENVIRONMENTAL NON-GOVERNMENTAL ORGANIZATIONS
Environmental non-governmental organizations (NGOs), most of them organized in
the global Climate Action Network [*372] (CAN), n120 have played an
important role in climate negotiations from the outset. Their number has
increased from 191 accredited observers at COP-1 in 1995 to over 530 at COP-6
in 2000. n121 They have been participating in a number of ways, including
raising public awareness, e.g. through the media or demonstrations; making
presentations on specific topics in side-events at the COPs; n122 providing
analyses, research papers and comments; n123 publishing ECO, CAN's newsletter
on the negotiating process; n124 lobbying and discussing the issues with
negotiators; making formal interventions during negotiating sessions; and
assisting parties in drafting legal texts for UNFCCC documents. n125
The role of NGOs in the climate arena differs from that in many other fields,
in that they have participated as partners in developing the regime rather than
simply playing the part of outside critics. n126 NGOs are part of what has been
described as an "epistemic community," a network of communities that
share knowledge about a certain phenomenon and a common set of normative
beliefs concerning what actions will benefit human welfare in this domain. n127
As in other fields, climate NGOs reflect a heterogeneous universe of stakeholders,
such as generalist versus specialized/expert NGOs, membership versus
non-membership NGOs, etc. [*373]
In
NGO presence varies in different EU countries. The number of NGOs listed in the
2000 CAN Directory ranges from two (Spain) to nineteen (UK) in large Member
States and from one in Luxembourg to five in the Netherlands and seven in
Belgium, the seat of many important EU institutions. n131 NGO influence has
been heightened by the sensitivity to their demands from the part of certain
Member States. n132 For instance, it has been suggested that NGO opposition to
the UK-U.S. deal at COP-6, which among other elements included the possibility
of accounting "generous" amounts of carbon storage activities for the
U.S. and other countries, might have contributed to the decision of some EU
countries to reject that deal, notably Denmark and Germany. n133
CAN
Other than CAN Europe and a handful of staffers from the big international NGOs
located in Brussels or nearby, European NGOs are primarily located in the
different European countries. The local versus regional interaction in
Public attention plays a central role in determining the EU's political agenda.
High levels of public concern about environmental problems have repeatedly
prompted governments to address them, while in the absence of popular interest,
they are considerably less likely to take action. Arguably, both the conclusion
of the UNFCCC in time for the Rio Summit in 1992 and of the Kyoto Protocol were
to a large degree the result of substantial public pressure. n141
However, the attitude of the public towards environmental policies varies in
different EU Member States. It is an important element that has influenced the
positions individual states have adopted in environmental matters in general
and climate policies in particular. n142 The strength of the Green movement,
which in the 1990s, for example, was strong in Germany and rather weak in
France, can serve to some extent as an indicator of public opinion, and success
of a Green Party in elections has at times caused a government to change its
position. n143
Public opinion is largely influenced by the media. Media coverage directs the
public's attention to certain issues and consequently has a bearing on the
government agenda. Since the media is the primary source of information on climate
change for most people, it also shapes the way they perceive the problem and
possible solutions. n144
In recent years, major media sources have reported on various aspects of
climate change on a very regular basis. n145 Large numbers of journalists
attend the COPs; almost 1,000 were accredited at COP-6 (2000) in
IV. DOES THE EU HAVE A DOMESTIC CLIMATE CHANGE POLICY? n151
A. POLICIES AND MEASURES AT THE EU LEVEL
The EU has demonstrated itself as a leader on the issue of climate change
(Section V, below), but how is its domestic record of accomplishment? This
chapter briefly reviews the track record of the European Union's climate policy
in the last decade and its likely course in the next one. We will not focus on
Member States' climate strategies and policies as this would fall beyond the
scope of this paper. n152 First, the regulatory [*377] framework is
described, followed by the more recent initiatives, including the European
Climate Change Program (ECCP) and a framework directive for greenhouse gas
emissions trading within the European Community.
As explained throughout this paper, EU policy is the result of the complicated
interaction between various interest groups compounded by intra and
inter-Member States politics. n153 Climate policies in
As explained in Section II, in the absence of a clearly defined area of
exclusive EU competence on climate change, it is extremely difficult to isolate
EU and Member States' obligations.
Furthermore, comprehensive international environmental agreements (such as the
UNFCCC or the Kyoto Protocol) are not easily related to the system of
segregated legal bases prescribed by the EU treaties.
"Initial steps to get climate policy in the EU agenda include a 1986
Resolution from the Parliament and Communications from the Commission in 1988
and 1989." n157 The Fourth Action Program on the Environment adopted in
late 1987 and covering the years 1987 to 1992, n158 made no mention of climate
change except as a subject for further research. n159 Momentum
[*378] emerged, however, when the Council of Energy and Environment
ministers in 1990 adopted a political agreement to stabilize CO2 emissions in
the EU as a whole at 1990 levels by the year 2000. n160 Closer to the final
stages of the negotiations of the Convention in 1992, the Commission proposed
to the Council the following climate package of measures to be implemented
within the EU in the coming years: n161
. A framework directive on energy efficiency within the Special Action Program
for Vigorous Energy Efficiency (SAVE) program;
. A decision on renewable energies ALTENER program;
. A directive on a combined carbon and energy tax; and
. A decision concerning a monitoring mechanism for CO2 emissions.
We will look at each such measure in more detail in the next section.
B. REGULATORY COMPONENTS: WATERED DOWN?
The SAVE program was designed to improve energy efficiency within the EU in
order to reduce CO2 emissions and improve security of supply. The program was
actually launched in 1987, but only in October 1991 did the Council of Energy
Ministers manage to approve it. n162 At that stage, the program emphasized the
adoption and implementation of several existing Directive proposals on energy
efficiency standards across a range of sectors from power generation to
buildings, vehicles and household appliances. n163 But by the time it had been
[*379] adopted in 1993, all the legislative proposals had either
been watered down or removed entirely. SAVE was turned into a framework
directive merely laying out general principles for action to guide Member
States' own programs and measures, short on targets, deadlines and content.
n164 Most commentators argue that the program failed due to insufficient
funding and a new interpretation of the subsidiarity principle, n165 which led
much of its regulatory content to be abandoned or severely diluted. SAVE is
considered to have had little impact on energy efficiency in the Member States.
n166 The few gains achieved by the first SAVE program were based on the
legislative component of the program, which is missing from the SAVE II
framework. n167 Instead SAVE II, which was adopted in December 1996, n168
intends to rely on voluntary agreements with equipment manufacturers on
labeling and energy standards. The SAVE II proposal includes only a modest
target to improve the overall efficiency on energy use in the EU by one per
cent over the next five years, and has been subject to significant budgets cuts
that undermine its ability to meet its self-declared goals. n169
The two technology-oriented programs, the THERMIE n170 and the JOULE n171
programs, are intended to bring about a 10-20 per cent reduction in CO2
emissions between 2010 and 2020. A recent evaluation of THERMIE indicated that
it had made an impact on market shares for energy efficiency technology, but
clean coal funding under the program has been criticized by environmental
groups for displacing focus on renewables, and for making only a small
contribution to lowering CO2 emissions. n172 JOULE and THERMIE have been merged
into [*380] ENERGIE, a subprogram on energy of the thematic program
"Energy, Environment and Sustainable Development" within the EU Fifth
Framework Program for Research, Technological Development and Demonstration
(1999-2002). The ENERGIE Program is organized principally around two key
actions: Cleaner Energy Systems, including Renewable Energies, and Economic and
Efficient Energy for a Competitive Europe supplemented by coordination and
cooperative activities of a sectoral and crosssectoral nature. With targets
guided by the
Established in March 1993, the ALTENER n174 Directive on "the promotion of
renewable energy sources in the EU" followed a similar fate to SAVE. Its
scope and content were considerably reduced and its budget deemed insufficient.
n175 It contained specific targets but no substantial tools for implementation.
ALTENER II was funded with a budget of merely twenty-two million ECU (the
Parliament and Commission had proposed more than thirty million n176) for
1998-1999. n177 A Commission Paper published in December 1997 called for a
doubling of the proportion of EU energy needs supplied by renewables to twelve
percent by 2010. n178 Opposed by the
Nonetheless, the adopted Directive requires that the EU double the use of
renewables in the energy supply. n182 The Directive includes indicative targets
for individual members' states, which will be required to draft and adopt
legislation to achieve these targets. n183 The renewables Directive was clearly
a positive step, but it is still uncertain how the Member States will implement
it, since the Directive leaves much scope for interpretation. Progress will
monitor the Directive's progress and may, as a result, make further proposals,
including for mandatory targets.
As this brief review has shown, regulatory measures have been consistently
bogged down either through the principle of subsidiarity or lack of funding,
both demonstrating overall lack of political will to act at the EC level.
Furthermore, poor implementation and regulatory failure remain a problem within
the EU. n184 This gap may partly be attributed to the fact that it is the
Environment Council that makes climate policy announcements and other Council
formations, e.g. Energy, (as well as the
C. THE ENERGY/CARBON TAX AND FISCAL MEASURES: TOTAL FIASCO?
In 1992, the European Commission proposed a Directive for the introduction of a
tax on all energy products, excluding renewables, based 50% on energy content
and 50% on the carbon content of fuels. n185 The objective was to improve
energy efficiency and favor fuel substitution towards products emitting less or
no CO2. It was proposed to introduce the tax in steps. After seven years the
rates would have reached 0.7 ECU/GJ and 9.4 ECU/CO2, equivalent to $ 10 per
barrel. Graduated reductions and conditional exemptions from the tax were to be
applied for energy intensive firms. n186 The tax proposal was estimated to lead
to a reduction in CO2 emissions of around 10% ten years after implementation,
compared to a business-asusual scenario. Depending on the business-as-usual
scenario, this would imply no growth or a slight reduction in CO2 emissions
compared to 1990 levels. The tax was intended to be levied in addition to existing
excise duties.
No agreement was ever reached in the Council, where this proposal encountered
strong opposition from some countries and transnational industry. The
"cohesion countries" (i.e.,
The idea of a CO2 tax has not been abandoned, but proposals for other, more
indirect avenues have been discussed as well. n191 Former environment
Commissioner, Ritt Bjerregaard, stated publicly that the EU could not avoid a
carbon/energy tax if it intends to reduce CO2 emissions after the year 2000
because energy prices are currently too low to stimulate improvements in
efficiency. n192 The EU-wide carbon/energy tax has the potential to reduce
greenhouse gas emissions considerably, but will probably remain on the
"shelf" because of the requirement for consensus in EU fiscal
environmental policies. In the meantime, Member States should address the
issue, as the
D. MONITORING MECHANISM FOR GREENHOUSE GASES: SOME HOPE?
The only substantive piece of EU legislation to have been adopted by the
Council so far was the establishment of a monitoring mechanism for greenhouse
gases. On June 24, 1993 the Council of Environment Ministers adopted Decision
93/389/EEC n193 establishing a monitoring mechanism in the Community for
anthropogenic CO2 and other greenhouse gas emissions not controlled by the
Montreal Protocol. The monitoring mechanism serves a double purpose of
monitoring progress towards the stabilization of CO2 emissions at 1990 levels
by the year 2000, and towards the fulfillment of the Community's joint
commitments under the 1992 Climate Convention. The Decision requires each
Member State "to devise, publish, implement and periodically update
national programs for limiting [*384] their anthropogenic emissions
of CO2." n194 The Commission annually evaluates the national programs in
order to assess whether progress in the Community as a whole is sufficient to
attain the stabilization objective. For the performed evaluations n195 under
this Decision, the Commission concluded that the information provided was still
not sufficient to evaluate progress towards the Community stabilization target
in a satisfactory way. n196 Compliance with Decision 93/389 has not been
impressive because the annual assessments, a key part of the Decision, seem to
have been virtually ignored. n197
Decision 93/389/EEC was revised in April 1999, n198 to allow for the updating
of the monitoring process in line with the inventory requirements incorporated
into the Kyoto Protocol. The amendment strengthened national program
requirements on policies and measures, which should include (a) information on
actual progress and (b) information on projected progress.
Member States are required to submit by December 31 inventory data for the two
previous years, any updates of previous years (including the base year 1990)
and their most recent projected emissions for the years 2005, 2010, 2015 and
2020. As many commentators have argued, n199 the term "monitoring
mechanism" does not convey its full potential importance, which has taken
on a particular relevance with the burdensharing agreement under the EU
"bubble" (See section V below). This mechanism could play a critical
role in ensuring [*385] that the EU and
The first progress report under Decision 99/296/EC was released in November
2000. n200 The Commission saw good progress in Member State's reporting on
emission inventories and some progress with regard to national
policies/measures and projections. However, much remains to be done with regard
to the completeness, accuracy and comparability of the data, especially those
on projections. The report concluded that:
. The EU's greenhouse gas emissions fell by 2.5% between 1990 and 1998;
. The majority of Member States are far away from their target paths towards
. "Business-as-usual" projections suggest that existing policies and
measures would at best reduce overall EU emissions in 2010 by 57 Mt CO2, taking
emissions to 1.4%, or at worst 0% below the 1990 level;
. Additional policies and measures identified by Member States are projected to
yield further reductions close to 7% below 1990 levels;
. Projections have considerable uncertainty because of the lack of quantified
data on additional measures, lack of comparability of methodologies used and
uncertainty over implementation of the policies and measures. n201
This means the EU as a whole is expected to have met its commitment under the
Convention, i.e. to stabilize emissions at 1990 levels by the year 2000.
However, this positive evolution is more a "fortuitous" result of the
economic collapse and modernization in eastern
E. VOLUNTARY AGREEMENTS: IS EUROPE GETTING THEM RIGHT?
Environmental voluntary agreements have been emphasized in the EU Sixth
Environment Action Program. n205 During the 1990s, they received increased
attention as an alternative or supplement to traditional policy instruments,
particularly in the field of energy efficiency. Voluntary Agreements can more
specifically be defined as "commitments between authorities and target
groups setting forth environmental objectives based on voluntary participation
or absence of sanctions as part of the commitments themselves." n206 In
the EU context, the promotion of agreements with industry can be seen as part
of the effort to broaden participation and the range of policy instruments, and
thus implement the concept of "shared responsibility" emphasized
[*387] in the 1992 Fifth Action Program and the 'wider constituency'
proposed in the Sixth Environment Action Program.
Voluntary Agreements are widely applied in EU Member States, but few at EU
level. n207 Recently, the European Commission and the European Automobile
Manufacturers Association n208 signed a Voluntary Agreement to reach a 25%
reduction of CO2 emissions from passenger cars by 2008. n209 Agreements have
been reached with the Japan Automobile Manufacturers Association (JAMA) and the
Korean Automobile Manufacturers Association (KAMA). n210 Voluntary Agreements,
however, are not free of problems. Besides the difficulty of separating their
specific effects from more general societal factors and processes, Voluntary
Agreements are also likely to work best in "benign" conditions; with
energy efficiency as a relevant climate policy example. n211 As an April 2000
Commission Recommendation noted, "The agreement with the auto industry is
an interesting development, but it is too early to judge whether this was a
regulatory breakthrough or a regulatory cop out." n212
F. THE EUROPEAN CLIMATE CHANGE PROGRAM
The Environment Council of October 1999 urged the Commission to put forward a
list of priority action on climate change as early as possible in 2000 and to
prepare appropriate proposals in due course. n213 In response, the European Climate
Change Program (ECCP) was created. n214 The driving force behind the ECCP is
the uncertainty and difficulties Members [*388] States will face in
fulfilling their commitments. n215 Under current policies and measures the
overall EU emission reduction in 2010 will lie somewhere between -1.4% and 0%.
The ECCP emerged as a means of reinforcing common and coordinated policies and
measures at the Community level, in the face of consistent weakening or
altogether dropout of Commission proposals. These measures are supplemental to
actions taken by Member States in the fulfillment of their Kyoto targets. The
ECCP has taken a multi-stakeholder approach n216 in the preparation of the
proposals to reduce greenhouse gas emissions. The scope of the program is limited
to achieving the Kyoto target of -8%, but in the mid and long-term perspective,
the ECCP will address issues such as adaptation; international cooperation
through capacity-building and technology transfer; research/observation;
demonstration of efficient; and clean technologies and training and education.
n217
The ECCP established a Steering Committee n218 to coordinate six Working
Groups:
1. Flexible mechanisms
2. Energy supply
3. Energy consumption
4. Transport
5. Industry
6. Research
Some Working Groups have sub-groups. The Commission's role is to coordinate and
facilitate the different Working Groups in this innovative integration
exercise. The results of the "Economic Evaluation of Sectoral Emission
Reductions Objectives [*389] for Climate Change" n219 study
were used as inputs for each Working Group, so they have to be briefly
mentioned. This EU-commissioned report which identifies a least-cost allocation
of objectives for different sectors and greenhouse gases, would allow the EU to
reach its Kyoto target. n220 With caveats and limitations, the study combines a
"top-down" and a "bottom-up" methodology to understand
different cost-effective greenhouse gas mitigation options. The study results
show that instead of having each sector reduce its emissions by 8%, some
sectors need to reduce their emissions by more than 8%: energy supply (11%),
fossil fuel extraction (46%), industry (26%), agriculture (8%) and waste (28%).
According to this sectoral least-cost allocation approach compliance costs are
predicted to be 0.06% of EU gross domestic product. n221 A number of other
studies provide estimates in a similar range of up to 0.3%. n222 According to
this study the six most cost-effective ways for the EU to reach its Kyoto
target are:
1. Decarbonization of energy supply:
a. Further switching from coal to gas;
b. More efficient generation of power (e.g. increasing the share of Combined
Heat and Power);
c. Increase in the use of renewable energy (notably biomass and wind energy).
2. Improvement of energy efficiency, particularly in industry, households
(retrofitting) and services sector.
3. Further reduction of nitrous oxide from the adipic acid industry and
implementation of reduction options in the nitric acid industry.
4. Reductions of methane emissions in coal mining, oil and natural gas, and
waste and agriculture sectors. [*390]
5. Reduction of fluorinated gases in specific applications, e.g. industrial
processes, mobile air conditioning and commercial refrigeration.
6. Energy efficiency improvement measures in the transport system. n223
The results from this study served as the basis for discussion of the ECCP
Working Groups, which came up with measures based on criteria of cost
efficiency, emission reduction potential, time horizon and political
acceptability. Each Working Group met several times in 2000 and 2001. The
Commission was then urged to develop concrete policy proposals that have been
presented as a package of measures in four areas: crosscutting, energy,
transport and industry (see table 2, below). n224
Table 2: ECCP Policy Proposals
Cross Cutting Issues
- Promoting effective implementation of the Integrated Pollution Prevention adn
Control Directive
-Proposal for a Directive on linking project-based mechanisms including Joint
Implementation and Clean Development Mechanism to EC emissions trading scheme
- Proposal for a review of the monitoring mechanism
Energy Issues
-Proposal for a Framework directive for minimum efficiency requirements for
end-use equipment
-Proposal for a Directive on energy demand management
-Proposal for a Directive for the propotion of Combined Heat and Power
-Non-legislative proposals: Initiatives on increased energy-efficient public
procurement; Public awareness campaign and campaign take-off
Transport
-Proposal for shifting the balance between modes of transport
-Proposal for improvment in infrastructure use and charging
-Promotion of the use of biofuels for transport
Industry
-Proposal for a Framework Directive on flourinated gases [*391]
Without scrutinizing each item individually, the climate package is ambitious
and worthy of the "leader" of the climate regime. Nonetheless,
according to the Commission, the emissions reduction effects of these measures
are unlikely to meet the Kyoto targets, thus the need to examine additional
measures from the ongoing ECCP process. After a decade of weakened proposals,
but at the same time building on them, European climate policy is finally
starting to shape up. However, all these efforts will be in vain if the Council
does not quickly adopt and implement these proposals. Only then, will the EU be
able to show directional leadership, i.e., leadership by example. n225
G. THE COMMISSION PROPOSAL FOR AN EMISSIONS TRADING DIRECTIVE
In 1999 the European Commission suggested that the best way for the Community
and its Member States to get acquainted with the Kyoto mechanisms would be to
develop their own emissions trading scheme. n226 A paper n227 on greenhouse gas
emissions trading within the EU was released in 2000 for wider consultation
with stakeholders. Ninety comments overwhelmingly supporting emissions trading
- were received from governmental organizations, businesses and NGOs throughout
Europe. n228 The proposal for a framework directive [*392] was
released just before COP-7 (2001) as part of the EU climate package. While
neither industry nor NGOs seemed fully content with the proposal, the
Commission appears to have taken a middle-ground position, which we briefly
describe next.
Beside providing experience in a scheme that will later be used
internationally, n229 an internal emissions trading system will enhance the
cost-effectiveness of emission reductions by making emission reductions as
cheap as possible wherever they may occur in the Community. The Commission
proposed a capand-trade approach covering heavy industry sectors across the EU.
This proposal revolves around two key concepts: greenhouse gas
"permit" and greenhouse gas "allowance." All installations
under the scheme will be required to have permits that will lay down
monitoring, reporting and verification requirements in respect of direct
emissions of greenhouse gases specified in relation to those activities. Member
States will allocate allowances to all installations holding permits that can then
be transferred to other companies. "Each year, companies must submit for
cancellation a number of allowances that corresponds to their actual emissions.
If they do not have enough allowances, sanctions will be imposed on them."
n230 The scheme will run between 2005 and 2007, before the Kyoto Protocol's
first commitment period starts. The rationale of using emissions trading is
based on the fact that it provides certainty about the environmental outcomes.
n231 However, under this proposal, the Member States rather than the EU will
decide on initial allocations. The Monitoring Mechanism in conjunction with
national transaction registries will perform the tracking of traded allowances.
Only carbon dioxide emissions will be covered in the beginning of the scheme
because they represent 80% of the Community's greenhouse gas emissions.
Penalties for noncompliance have also been envisaged: set at <box> 100
per excess tone or twice the average market price during that period.
[*393]
Designing an emissions trading scheme is not a trivial task, least of all if
one is to consider all stakeholder interests from a variety of Member States.
Member States and particular interest groups remain divided in the details of
this emissions trading directive. n232
In the previous sections we overviewed some key aspects of EU policymaking on
climate change from an institutional and actors-based perspective, as well as
the key developments of a "domestic" EU climate policy. We now turn
to an analysis of selected elements in the Kyoto Protocol negotiations between
1992 and the present day i.e. between the signing of the UNFCCC at the Rio
Earth Summit (UNCED) and COP-7 in late 2001.
V. THE EU ON SELECTED ISSUES OF THE CLIMATE CHANGE REGIME
Almost ten years have passed since the adoption of the United Nations Framework
Convention on Climate Change. A full fledge analysis of the climate change
regime, even if specifically focused on the EU track record, is beyond the
scope of this paper. We will instead focus on key selected areas of the last
ten years of the negotiations by providing illustrations of how the EU
positioned itself with regard to such areas. We will draw upon the available
literature and official documents, as well as on our own experience--including
multiple interactions with many different participants--in taking part in
different capacities in the climate negotiations since the mid 1990s. Finally,
the select issue-oriented approach to this analysis will be played in the
context of the different chronological milestones, which the climate change
regime has gone through. These milestones are summarized immediately below.
As mentioned in the introduction, n233 the UNFCCC went through essentially
three phases after it was signed. The first phase was between the Convention's
signature in 1992 until [*394] COP-1 in Berlin, Germany, when
Parties decided to strengthen the regime. The next phase corresponded to the
Kyoto Protocol negotiations that began in 1995 (COP-1) and culminated with the
adoption of the Protocol at COP-3 in Japan in 1997. The third and present phase
of over 4 years corresponds to the period in which Parties negotiated the key
operational rules and guidelines under the Protocol, which were essential for
its ratification and entry into force--which depends on a majority of 55
Parties, including Annex I Parties that account for 55% of this Annex's CO2
emissions. n234
Throughout this past decade the EU has remained committed to push for what has
generally been perceived as stringent climate change standards, n235 somewhat
in contrast with its own domestic track record, as explained in the previous
section. If one can summarize the following subsections, the EU positioning was
predicated on the ability of the Member States and the Community to jointly
fulfill their target obligations under the Protocol. This fact has consistently
conditioned the EU position, leading it often to renege or soften other
positions in order to secure its primary objective. The following analysis will
focus on three issues: policies and measures, emission targets, and developing
countries.
A. POLICIES AND MEASURES: EXPORTING DOMESTIC APPROACHES OR INTERNATIONAL
PRETEXT FOR DOMESTIC COORDINATION?
A key element in the EU negotiation strategy leading up to Kyoto consisted of a
package of so-called "common and coordinated policies and measures,"
such as a carbon/energy tax or energy efficiency standards, to be adopted by
Parties. n236 The EU spent much of its internal discussions and negotiating
capital devising and presenting this package to other Parties. The
[*395] policies and measures text that was eventually agreed upon
is much too weak to be claimed as a EU negotiating success.
The discussion on policies and measures effectively began at COP-1 in Berlin
(1995). Due to statements from progressive Member States and NGO pressure, the
EU managed to forge an alliance, the so-called "green group," with
developing countries (minus OPEC n237) against the JUSSCANNZ countries. n238
This coalition paved the way for the adoption of the Berlin Mandate, which
included the EU proposal to call on developed country Parties "to
elaborate on policies and measures." n239
To that effect and throughout 1996 and part of 1997 the EU went through an
intense internal process to prepare several lists of policies and measures.
This proposal was submitted in mid 1997, and at its core consisted of three
annexes containing three sets of policies and measures. Annex I included
"mandatory Policies and measures common to all OECD Parties;" Annex
II "Policies and measures to be given high priority by OECD Parties and
for coordination with other Parties;" and Annex III "National
policies and measures to be given priority for inclusion in national programmes
of OECD Parties ... as appropriate to national circumstances." n240
This proposal was not, however, further elaborated, thus provoking considerable
criticism and "irritation" from other negotiating Parties. n241 In
fact, those Parties never showed much interest in following the EU approach of
binding policies and measures. n242 The U.S., although initially signaling some
[*396] interest in discussing policies and measures in general,
n243 came out in favor of targets and timetables at COP-2 (1996). (See next
subsection.) It further stated that it "firmly opposed mandatory,
harmonized policies and measures that would be imposed upon us in order to
reach our target." n244 As a result, the U.S. did not submit any proposal
on policies and measures. In the face of such widespread opposition, why did
the EU keep insisting on its proposals on policies and measures? Commentators
have essentially given two reasons for that fact: the first reason is based on
internal EU politics, and the second views the EU position as a default
position in the face of U.S. early opposition to targets.
The first reason is that some internal political issues, despite considerable
discussion, remained fundamentally unresolved among the Member States and the
Commission. As a result, some Member States transferred such considerations to
the international level, in the hopes of attracting some support for their
views. n245 The EU certainly had a long history of policy coordination in such
areas as trade, agriculture and environment. However, as explained in section
IV above, by 1997 it had failed to implement meaningful policies and measures
on climate change--most notably an energy/carbon tax. As a result, the European
Commission in particular might have had an interest in exploring the policies
and measures avenue as a way to extend its competences on climate change. n246
An energy/ carbon tax, which the Commission had kept under discussion, n247
required harmonization at EU level and was conditional on comparable efforts by
the EU's competitors--e.g. the U.S. and Japan. n248 This measure, it was
argued, would suggest [*397] international coordination. n249 In
addition to the Commission, smaller Member States also favored the policies and
measures approach as a way to ensure that their particularly open economies
would not be comparatively disadvantaged should they take domestic action on
climate change. n250 However, as Farhana Yamin sharply observes, analyzing the
EU international climate change negotiating strategy "the fact that these
same countries could not get other EU Member States to agree internally to
mandatory [policies and measures] should have alerted them to the difficulty of
trying to persuade a more heterogeneous and larger number of states . . ."
Rather than seeing itself as a microcosm of the larger group, the EU appeared
to have thought of the [Ad Hoc Group on the Berlin Mandate (AGBM)] n251 process
as having the ability to solve the EU own internal problems. n252
The second reason advanced by commentators for the EU's insistence on policies
and measures is of a tactical nature vis-avis the U.S. in particular. At the
beginning of the AGBM process the U.S. had not yet signaled a preference for
targets and timetables. Some in the EU therefore viewed the proposal on binding
policies and measures as a way to put pressure on the JUSSCANNZ in general and
on the U.S. in particular to either approach. n253 However, the EU's continued
insistence on policies and measures even after the United States' announcement
on targets suggests that the strategy did little more than irritate other negotiating
partners while proving ultimately to be unsuccessful.
The Protocol text does not contain any reference to binding policies and
measures. Article 2 of the Protocol merely lists examples of policies and
measures to be taken by each Party "in accordance with its national
circumstances." n254 Article 2.4 [*398] further opens the door
for the future consideration of policies and measures "coordination."
n255
Since the adoption of the Protocol in 1997, policies and measures have barely
been in the negotiators' attention span.
This is mainly because Parties were busy crafting the Protocol's key
operational rules on, e.g., the flexible mechanisms and monitoring, reporting
and verification of Parties' emissions. n256
As a result, Parties have limited their activity on policies and measures to
the organization of two information-sharing workshops on "best
practices." n257 COP-7's decision on this issue called for further
information exchange activities. n258
B. TARGETS AND TIMETABLES: LEADING . . . BUT AS A "BUBBLE"
After the adoption of the Convention and in the run up to the first Conference
of the Parties scheduled for Berlin in 1995, it was up to the Alliance of Small
Island States (AOSIS) to push for additional reduction commitments. It based
such a proposal on the argument that the Convention's stabilization aim would
not be sufficient to tackle the challenge of climate change and that the first
review of the adequacy of commitments under the Convention's Article 4.2(d)
should take place at COP-1. n259 AOSIS thus proposed a draft protocol six
months prior to COP-1, which called for a 20% reduction of industrialized
countries CO2 emissions by 2005. n260 At that stage the EU had no clear common
position with regard to the strengthening of targets. n261 Germany, however,
proposed language that called for further reductions, n262 thereby setting the
stage within the [*399] EU. At COP-1 Parties concluded that the
Convention's aim was not adequate. They decided to set up the AGBM to strengthen
developed countries' (Annex I) commitments, including by means of
"quantified limitation and reduction commitments within specified
timeframes, such as 2005, 2010 and 2020. ." n263
Although the EU submitted a "proposal on the structure of a protocol or
another legal instrument," n264 in late 1995, it was caught in
"stymied" n265 internal discussions on the relationship between
policies and measures (see previous section) and targets for most of the AGBM.
It took a German proposal in October 1995, with the support of a few other
Member States, for a 10% reduction of CO2 emissions by 2005 and a 15-20%
reduction by 2010, n266 as well as the U.S. coming forward with its position on
targets at COP-2 (1996), n267 for the EU to come to an agreement on a
collective proposal in March 1997. This proposal called for developed country's
targets and timetables based on a basket of three gases (carbon dioxide,
methane and nitrous oxide) n268 and on a flat rate reduction of 15% by 2010 in
relation to the 1990 base year. n269
As stated above, the EU has, during the negotiations of targets, insisted on
being permitted to fulfill its obligations jointly - or as a
"bubble." This means that the EU and its Member States have a common
target (Parties in the end agreed upon a reduction of 8%), but that they can
redistribute the burden of emissions reductions among themselves by
[*400] means of an internal agreement (the "Burden Sharing
Agreement;" see below).
Although developing countries supported the EU proposal on targets, n270 this
approach drew considerable criticism from JUSSCANNZ Parties, in particular
Japan and Australia, which considered it "unfair" because it was
rooted on the possibility of internal differentiation (thus flexibility) n271
while at the same time calling for a single target at the international level.
n272 Nonetheless, Farhana Yamin considers that, despite individual proposals
from Member States, "it was the collective voice of the EU that forced
JUSSCANNZ countries to take this target position seriously" and that it
"represented the pinnacle of the EU leadership" in the Kyoto
negotiations. n273
Whereas the EU secured its main objectives of having binding targets for
developed countries alongside with the possibility of it being able to combine
its aggregate targets into a "bubble," on nearly every other issue
regarding targets the EU's preferred proposal was effectively rejected. Except
with regard to the fact that the targets were ultimately differentiated among
developed countries n274 (an approach favored e.g. by Australia), n275 and that
Parties chose 1990 as the year upon which reduction should be based n276 (a EU
preference), n277 the [*401] bulk of the target's design features
were instead U.S. proposals--such as a comprehensive coverage of six gases
rather than three. n278 In addition, there is no interim target for 2005. n279
Furthermore, rather than being based on a single year assessment, the targets
are assessed on the basis of a five year n280 "budget" or
"commitment" period commencing in 2008. n281
1. The Burden Sharing Agreement and Article 4 of the Kyoto Protocol
The issue of "burden sharing" has been historically at the center of
the EU position on climate change. n282 Already during the UNFCCC negotiations,
the EU had announced it would implement its commitments jointly. n283 However,
after the entry into force of the Convention and perhaps because of the
non-binding nature of its stabilization goal, EU climate policy moved slowly.
It was only in the run up to Kyoto, in March 1997, that the EU managed to come
to an internal agreement on burden sharing. n284 Negotiated under the Dutch
Presidency, n285 this internal agreement contrasted with the EU's own
[*402] proposal of a 15% reduction described above. In fact, the
1997 Burden Sharing Agreement would only accomplish a 9% reduction, with Member
States' limitations or reductions ranging from -25% to +40% (see table 3,
below).
It hence came as no surprise that this agreement had to be renegotiated after
the Protocol's adoption, which mandates an 8% reduction for the EC and the
Member States. This time under a British Presidency in 1998, the EU
renegotiated the Burden Sharing Agreement to meet the Kyoto targets, "but
ultimately the decision was political." n286 With the prospect of locking
in specific individual targets, the collective ambition at COP-3 (1997) gave
way to the positions of the more conservative Member States. Indeed, as
Oberthur and Ott summarize in a characteristic illustration of the relationship
between the Member States in the climate arena:
...A number of governments used the new situation to achieve a general
relaxation of their targets. Denmark and Germany demanded adjustments and the
former "green" countries Austria and the Netherlands admitted that
they would not be able to meet their ambitious targets of the first agreement.
These announcements triggered distinctive resistance from Greece, Ireland,
Portugal and Spain, who were now expected to limit their emission growth to a
larger extent than formerly agreed. Of the main emitters of the EU, only the UK
declared that it would take a stronger commitment than before. n287
Table 3: EU 1997 and 1998 Burden Sharing Agreements
|
Member State |
1997 n288 |
1998 n289 |
|
Austria |
-25% |
-13% |
|
Belgium |
-10% |
-7.5% |
|
Denmark |
-25% |
-21% |
|
Finland |
0% |
0% |
|
France |
0% |
0% |
|
Germany |
-25% |
-21% |
|
Greece |
+30% |
+25% |
|
Ireland |
+15% |
+13% |
|
Italy |
-7% |
-6.5% |
|
Luxembourg |
-30% |
-28% |
|
Netherlands |
-10% |
-6.0% |
|
Portugal |
+40% |
+27% |
|
Spain |
+17% |
+15% |
|
Sweden |
+5% |
+4.0% |
|
United Kingdom |
+10% |
-12.5% |
n288 n289 [*403]
The 1998 burden sharing thus settled the scores after Kyoto and allowed the EC
and the Member States to focus on the development of their own implementation
plans, which have indeed been under way ever since. n290
The issue of burden sharing is intrinsically linked with a key provision in the
Protocol: Article 4, also known as the "joint fulfillment" provision.
This article was established essentially to accommodate the possibility that
the EU and its
C. DEVELOPING COUNTRIES
Traditionally, the EU has taken a different approach to developing country
participation in the climate regime, when compared to other OECD developed
countries. Notably, the
The EU, on the other hand, has taken a much more conciliatory position with
respect to developing countries commitments. In the run-up to
After
It is important to consider whether this coalition will hold, strengthen or
collapse altogether in the near future. The Marrakech conference already saw
some weakening of the coalition, with the EU caving in to many Umbrella
demands, much to the dislike of G77/China. However, with the discussion on
second commitment period targets nearing, the EU will surely have to take a leadership
and mediating role in order to "keep the family together." This will
be one of the biggest challenges the EU faces in the years to come (see section
VII, below).
VI. THE EU AS A LEADER ON CLIMATE CHANGE: ASPIRATION OR REALISM?
A. OVERVIEW OF EUROPEAN LEADERSHIP PROPOSALS
The sections above have given a mixed picture of the EU's ability to pursue a
leadership role in climate change policy. In Sections II and III we saw that,
despite favorable conditions in the EU in terms of public and business support,
the EU institutional machinery in areas of shared or mixed competence has
constrained the
Among the climate policy literature, two proposals have emerged on the issue of
European leadership. The first proposal was presented in 1999 by two German
researchers, Sebastian Oberthur and Herman Ott. n303 The second proposal was
headed by Joyeeta Gupta and Michael Grubb in 2000, and was part of a
comprehensive research project on this very subject. n304 Both proposals are
complementary and we shall therefore focus on their common elements and apply
them to the practice of the EU for the past year.
These proposals call for a decisive stance from Europe, in particular but not
exclusively the EU, n305 on climate change. They are predicated on the central
notion that the U.S. (or others like Japan or the G77) will not exercise
leadership, and that the EU is the only major player with both the will and the
capacity to muster the resources to move the process forward. The key common
elements of these proposals are thus:
. Ensuring ratification and entry into force of the Kyoto Protocol, even
without the U.S. initially. The core elements of this strategy include forging
a common understanding with Japan and Russia in particular, but also with other
Parties, so as to ensure the majority needed for the entry into force of the
Protocol without the U.S.; n306 [*408]
. Implementing domestic policies and measures (at EU and Member States'
levels), so as to lead "by example." In addition to demonstrating
that the EU was "putting its money where its mouth was," this element
would arguably pave the way to international coordination of policies and
measures, but this time from a bottom-up process; n307 and
. Strengthen relations and common strategies with developing countries. This
approach would rely on increased capacity building support, as well as on ways
to "bridge the gap between [the developing countries] and the U.S."
n308
Gupta and Grubb further add the following elements:
. First, the EU needs to develop a "better diplomatic modus operandi to
ensure that its total influence is united, flexible, effective and wide in its
outreach." n309 To that end, the authors argue, the EU should focus its
energies on devising common implementation and negotiating strategies, whereas
their implementation should be left primarily to the Member States. With regard
to international negotiations in particular, the authors recommend that the EU
and the Member States effectively use their impressive combined diplomatic
resources. In particular, Member States should have clearly stated roles,
including greater authority to speak. This fact alone would enhance the
projection of the EU's arguments.
. Second, the EU and the Member States need to deploy comprehensive public
education and outreach campaigns. This is especially relevant in the context of
the specific [*409] "sacrifices" that will be required in
order to implement domestic policies and measures. n310
Are these proposals, both dating back two or three years, already outdated by
the pace of events? Quite the contrary. The U.S. pull out of Kyoto only
reinforced all the elements in the leadership proposals reviewed, and during
the last year several--although by no means all--elements of those strategies
were clearly visible on the part of the European Union. The next section
presents some examples.
B. RECENT DEVELOPMENTS IN LIGHT OF THE LEADERSHIP ELEMENTS: FROM THE HAGUE TO
MARRAKECH
Shortly after the U.S. withdrawal from the Protocol, the EU sent a letter to
the White House emphasizing that a global strategy to tackle climate change is
an integral part of its relations with the United States. European Commission
President Romano Prodi and Swedish Prime Minister Goran Persson, whose country
held the EU presidency at the time, signed the joint letter that challenged the
United States to find the "political courage" to come to an agreement
on the Protocol's operational rules, at talks due to take place in Bonn in July
2001. n311 A series of transatlantic letters and diplomatic endeavors followed
to try to keep the U.S. engaged. n312 This shuttling of officials confirmed the
rise of climate change as yet another controversial area of transatlantic
foreign policy.
As European leaders realized that the U.S. had decisively disengaged from the
international climate talks, EU environment ministers pledged to pursue
ratification of the Protocol with or without the U.S. n313 In addition,
demonstrating flexibility it had lacked at COP-6, n314 the EU signaled its
willingness to renegotiate parts of the Protocol in order to accommodate U.S.
[*410] concerns, n315 but the administration had simply dug itself
too deeply to contemplate any adjustment to its withdrawal. The EU hence
started gathering support for the Kyoto Protocol around the world. A European
delegation visited Moscow, Tehran (Iran led the G77 at the time), Beijing and
Tokyo. n316
At COP-6.5, in Bonn, the EU showed extensive negotiating flexibility. As a
result, a political agreement (the Bonn Agreement) was brokered among the
Parties. n317 According to the EU the Kyoto Protocol was saved. A bitter sweet
feeling was nonetheless evident in some EU quarters as they were reminded that
the terms of the Bonn Agreement are really not so much different--perhaps even less
stringent in some areas--than the agreement almost reached at COP-6, at the end
of 2000. n318
However, the stakes in 2001 were considerably different than those of 2000, in
that now it was the Protocol's own survival that was at issue due to the U.S.
withdrawal. In that respect, the EU managed to pull together a coalition of
like-minded countries to secure agreement conducive to the Protocol's entry
into force. That coalition--although at times bitter--persisted at COP-7, in
November 2001. At COP-6.5 and COP-7 the EU appeared somewhat less under a
reclusion mode, having engaged in multiple discussions with third Parties. This
may have resulted in part from the fact that by COP-6.5 and 7 the EU had well
established negotiation positions, or at least the key principles underlying
such positions, therefore allowing it to reach out to other Parties. It remains
to be seen whether that was more the result of a particular Presidency (Belgium
at the time) or the beginning of a change of practice.
VII. CONCLUSION AND OUTLOOK: CAN THE EU LEAD THEWAY BEYOND THE KYOTO PROTOCOL?
Legge and Egenhofer have labeled this next phase as "the regionalization
of the Kyoto Protocol." n319 Just before COP-7, [*411] the
European Commission adopted a major package of decisions on the ratification of
the Kyoto Protocol, the implementation of the European Climate Change Program,
and a framework Directive for greenhouse gas emissions trading within the
European Community (see section IV, above). Although this effort represents considerable
progress towards ratification and implementation, coupled with Member States'
own implementation plans, the EU should not be complacent and should learn from
past lessons on domestic policies and measures. The ratification and
implementation processes need to be understood as on-going tasks. With regard
to the former, the EU and its Member States are demonstrating leadership by
having ratified Protocol on time for its entry into force the World Summit on
Sustainable Development in the latter half of 2002. n320 EU ratification alone,
however, will not ensure that the Protocol enters into force. As a result, the
EU needs to continue pressuring other key Parties to ratify. n321
Furthermore, it is essential to bring the U.S. back into the Kyoto game and the
EU must play a key role here. U.S. "freeriding" on climate change
raises deeper issues of equity for the international community as a whole, n322
and may increase the reluctance of developing countries to take mitigation
commitments of their own. Climate change is a challenge that is here to
stay--it is a century-scale global commons problem. Having the world's largest
emitter of greenhouse gases outside a global climate change regime cannot be
sustained for a long period of time. It is therefore essential to re-engage the
U.S. on serious climate talks, using if necessary avenues other than the
UNFCCC. The establishment of a high-level working group at the EU-U.S. summit
in Gothenburg in 2001 may constitute an initial basis for continued contacts between
the two blocs. n323 [*412] However, the recent U.S. administration
proposal on climate change represents a set back in terms of its international
engagement, as under that plan U.S. emissions are estimated to grow at
business-as-usual levels. n324 Initial European reactions indicate clear
skepticism from their part. n325
The EU seems to be the only Party willing and capable to bridge the divide
between the Umbrella Group and the developing countries. Assuming the Protocol
enters into force, as Parties prepare for the negotiations of second commitment
period targets, the strategy of bringing the U.S. on board must be played in
tandem with the negotiation of developing countries' targets. Some developing
countries may be more willing than others to take on commitments.
Rather ironically, the U.S. withdrawal form the Kyoto Protocol might have
contributed significantly to Europe taking the role of leading the climate
change regime into full being. As the EU continues to assert itself
internationally, its responsibility increases accordingly. To seize this
opportunity of [*413] leadership, the EU needs to change internal
procedures and practices, and engage more widely with third Parties.
It has already been pointed out that the EU needs to lay more emphasis on
timely coalition building, especially with the group of developing countries.
In addition, in order to fulfill the important leadership functions the EU is
called to perform in the years to come, it will have to improve the internal
decisionmaking process, which has proven inefficient and too cumbersome for the
needs of climate negotiating sessions (see Sections II, III). Some of the
internal issues addressed throughout this paper include:
. The EU cannot afford paralyzing itself by regular haggling over competences.
The EU needs to at least agree on a common mid and long-term strategy on
climate change, and on a modus operandi for international negotiations, which
assigns clear negotiating and decisionmaking powers to the Commission and/or to
the Member States according to their perceived "comparative
advantage." These negotiators need to be authorized to act with
flexibility, i.e. to enter into bargaining with third Parties without being
forced to assure consensus among all EU Member States in the case of each
modification to original agreed EU negotiating positions. Member States must
hence give up some (paralyzing) control in order to ensure higher overall
effectiveness of the EU negotiating practice, which in turn would improve its
relationship to negotiating partners.
. Like in other environmental regimes, the Commission rather than the
Presidency should take the lead on climate negotiations. This would not be
incompatible with a clearer division of labor among the Commission and the
Member States described in the preceding bullet, in that the Commission would
work closely with the Member States in both preparing and negotiating a common
position. In fact, such a division of labor would require that someone ensure
the medium and long-term continuity, stability and consistency of EU
negotiating positions. The Commission seems to be better equipped for that task
in that it is by definition and practice the "guardian of the
Treaties" i.e. of EU policies and regulations. [*414]
. In addition, the EU needs to enter into negotiating sessions with more
elaborate positions in order to ensure a greater impact on the overall design
of the regime. It also and very importantly needs to develop potential
fall-back positions ahead of time to allow for more flexibility and quick moves
in the decisive phases of international bargaining process. As a result, the
internal process for reaching a common position needs to be streamlined by, for
instance, having a system of "lead countries" to prepare, in close
coordination with the Commission, draft common negotiating positions to be
decided by Council. In fact, some Member States have historically provided most
of the intellectual capital to selected issues, and at times such a system of
lead countries has been adopted during negotiating sessions. The EU would
nonetheless benefit from having such a practice made more permanent and
effective between negotiating sessions.
. Finally, in terms of the specific institutional arrangements within the EU to
further this leadership strategy, the Gupta and Grubb suggestion that climate
change should become part of the EU's Common Foreign and Security Policy,
thereby greatly enhancing its profile. n326
In conclusion, the EU's main priorities in the mid-longterm relate to its ability
to (a) implement effective domestic climate policies--leading by example; (b)
reform internal processes so as to ensure it is more capable to lead the
international negotiations (e.g. the role of the Commission); and (c) prepare
itself adequately for the second commitment period negotiations under the Kyoto
Protocol (by in particular "bridging the gap" between the U.S. and
the developing countries). If the EU manages to develop more efficient ways to
coordinate its many voices--maybe sometimes even without reaching consensus -,
it will be better able to lead the international climate change process. The
analysis of the history of EU climate change policy, now ten years old, has
revealed a mixed record that, in spite of all its shortcomings, gives rise to
guarded optimism for continued international coordination and cooperation on
the management of the global commons.
FOOTNOTES:
n1 Speech by European Environment Commissioner, Margot Wallstrom, Environment
European Climate Change Program: A Successful Approach to Combating Climate
Change, ECCP Conference Brussels, 2 July 2001. Available at:
http://www.europa.eu.int/rapid/start/cgi/guesten.ksh?paction.gettxt=gt&doc=SPEECH/01/3220RA
PID&lg=EN (visited Dec. 6, 2001).
n2 The last three statements presented were made in 2000 at Sixth Conference of
the Parties to the United Nations Framework Convention on Climate Change
(UNFCCC), which took place in The Hague from November 13-25, 2000. See list of
statements, in U.N. Doc. FCCC/CP/2000/5/Add.1, at 25-26. Available at:
http://unfccc.int/rsource/cop6 .html (visited January 10, 2001).
n3 The European Union (EU), established by the 1992 Treaty on European Union
(also known as Maastricht Treaty), available at
<http://www.europa.eu.int/eurlex/ en/treaties/dat/eucons treatyen.pdf>
(visited Dec. 11, 2001), consists of three pillars: the European Communities
(European Community EC, European Coal and Steel Community and European Atomic
Energy Community); the Common Foreign and Security Policy; and co-operation in
home affairs and justice policy. Although the use of terms may sometimes be
incorrect as a strict legal matter (see for a detailed explanation of this
terminology Nigel Haigh, Climate Change Policies and Politics in the European
Community, in POLITICS OF CLIMATE CHANGE: A EUROPEAN PERSPECTIVE (Tim O'Riordan
& Jill Jager eds., 1996 [hereinafter O'RIORDAN & JAGER] 155-156
[hereinafter Haigh]), following common practice in the context of climate
negotiations, the term "EU" will be used consistently, without distinction
as to which entity, the EU or the EC, acts in the specific circumstances (cf.
SEBASTIAN OBERTHUR & HERMANN E. OTT, THE KYOTO PROTOCOL: INTERNATIONAL
CLIMATE POLICY FOR THE 21ST CENTURY 14 (1999)[hereinafter OBERTHUR & OTT).
n4 For an in-depth analysis of European leadership on climate change, see
JOYETA GUPTA AND MICHAEL GRUBB (EDS.) CLIMATE CHANGE AND EUROPEAN LEADERSHIP
(2000) [hereinafter GUPTA & GRUBB]).
n5 United Nations Framework Convention on Climate Change, 9 May 1992, reprinted
in 31 I.L.M. 849 (1992), available at
<http://www.unfccc.int/resource/conv/index.html> (visited Dec. 10, 2001)
[hereinafter UNFCCC or Convention].
n6 Kyoto Protocol to the United Nations Framework Convention on Climate Change,
Conference of the Parties, 3rd Sess., Agenda Item 5, U.N. Doc. FCCC/CP/1997/
L.7/Add.1, adopted Dec. 10, 1997, opened for signature Mar. 16, 1998 available
at <http://www.unfccc.int/resource/docs/convkp/kpeng.pdf> (visited Dec.
10, 2001) [hereinafter Kyoto Protocol or Protocol].
n7 See e.g. "Oh no, Kyoto," The Economist (Apr. 7, 2001). For a summary of initial reactions to the
U.S. withdrawal from Kyoto, see Goncalo Cavalheiro & Nuno Lacasta, "I
Oppose the Kyoto Protocol": Ou Como se Deita um Acordo Internacional no
Lixo! Euronatura Working Paper 1/2001, April 2001, available at:
www.euronatura.pt (visited Dec. 12, 2001).
n8 See e.g. 2399th European Council of Environmental Ministers, Brussels,
December 12-13, 2001, available at http://www.europa.eu.int/rapid/start
/cgi/guesten.ksh?p action.
gettxt=gt&doc=PRES/01/4590RAPID&lg=EN&display= (visited June 1,
2002).
n9 See e.g. "EU Ratifies Global Warming Treaty: Kyoto Accord En Route to
Becoming Law Despite U.S. Rejection," The Washington Post, (June 1, 2002),
at A15 [hereinafter EU ratification].
n10 We use in our analysis Krasner's definition of "regimes" as
"Sets of implicit or explicit principles, norms, rules and decision-making
procedures around which actors' expectations converge in a given area of
international relations." See INTERNATIONAL REGIMES (Stephen D. Krasner,
ed.), 1982, at. 186. For an application of the main theories of international
relations to the issue of climate change, see I. H. Rowlands, Major theoretical
approaches, in INTERNATIONAL RELATIONS AND GLOBAL CLIMATE CHANGE (D. Sprinz D.
and U. Luterbacher, eds.), 1996 [hereinafter SPRINZ & LUTERBACHER], at
32-39.
n11 See for reviews and analyses of the UNFCCC negotiation, IRVING M. MINTZER
AND J. AMBER LEONARD (EDS.), NEGOTIATING CLIMATE CHANGE: THE INSIDE STORY OF THE
RIO CONVENTION (1994); and Daniel Bodansky, The United Nations Framework
Convention on Climate Change: A Commentary, 18 YALE J INTL L 451-558 (1993).
For review and analyses of the Kyoto Protocol, see OBERTHUR & OTT, supra
note 3; MICHAEL GRUBB, CHRISTIAAN VROLIJK AND DUNCAN BRACK, THE KYOTO PROTOCOL:
A GUIDE AND ASSESSMENT (1999) [hereinafter GRUBB ET AL]; Clare Breidenich et
al., The Kyoto Protocol to the United Nations Framework Convention on Climate
Change, 92 AM J INTL L 315-326 (1998); and Nuno S. Lacasta and Pedro Martins
Barata, Analise do Protocolo de Quioto sobre Alteracoes Climaticas, 4-5 Rev. de
D. Ambiente e Ordenamento do Territorio, 105-131 (Dec. 1999) [hereinafter
Lacasta & Barata].
n12 >From Farhana Yamin, The Role of the EU in Climate Negotiations, in
GUPTA & GRUBB, supra note 4, at 48. [hereinafter Yamin]. For a detailed
account of the first three phases of EU climate policy, see Haigh, supra note
3, at 161185.
n13 Article 2 UNFCCC, supra note 5.
n14 See CLIMATE CHANGE 1995: THE SCIENCE OF CLIMATE CHANGE (J.T. Houghton et
al. Eds., 1996). This Second Assessment Report from the Intergovernmental Panel
on Climate Change (IPCC) (established in 1988), which has been elaborated with
the contribution from over 2000 scientists from all over the world, provided
the scientific foundation for the strengthening of the international response
to climate change that culminated in the adoption of the Kyoto Protocol. The
IPCC has recently updated that report after a third assessment. See also CLIMATE
CHANGE 2001: THE SCIENTIFIC BASIS (J.T. Houghton et al. Eds., 2001).
n15 The six GHGs are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O),
hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride
(SF6).
n16 Emissions limitation or reduction are differentiated for each party: e.g.
the EU reduces by 8%, the U.S. by 7%, Japan by 6%, Russia and Ukraine
stabilise, whereas Australia increases by 8% and Iceland by 10%. See Kyoto Protocol, supra note 6, Annex B.
n17 Id. Article 3
n18 Id. Article 6, 12 and 17.
n19 Id. Article 3.3 and 3.4.
n20 Indeed, at the resumed Sixth Conference of the Parties to the UNFCCC
(COP-6.5), in mid 2001, Parties have agreed to also include as
"sinks" activities those of cropland management, grazing land
management and re-vegetation. In addition, and most importantly, each Annex B
Party was allocated a quantity of tons of carbon uptake it can account towards
its emissions target from forest management activities. See Report of the
Conference of the Parties on its Sixth Session, United Nations Framework
Convention on Climate Change, Conference of the Parties, 6th Sess., U. N. Doc.
FCCC/CP/2001/5 (with two addenda) [hereinafter COP-6.5 Report]. At the Seventh
Conference of the Parties to the UNFCCC (COP-7), in November 2001, Parties
further specified the operational rules with regard to the treatment of
"sinks" under the Protocol. See Report of the Conference of the
Parties on its Seventh Session, United Nations Framework Convention on Climate
Change, Conference of the Parties, 7th Sess., U.N. Doc. UNFCCC/CP/2001/13 (with
four addenda)) [hereinafter COP-7 Report]. Documents also available at:
www.fccc.int (visited Oct. 11, 2001). For an overview of COP-7, including the
provisions on "sinks," see Donald Goldberg & Katherine
Silverthorne, The Marrakech Accords, American Bar Association's Climate Change
and Sustainable Development Committee Newsletter, Vol.5, No.2, January 2002, at
1-6 [hereinafter "Goldberg & Silverthorne"].
n21 See OBERTHUR & OTT, supra note 3.
n22 Id.
n23 COP refers to "Conference of the Parties." Hereinafter, a numeral
following the acronym refers to the specific meeting, which have taken place
annually since the Convention entered into force in March 21, 1994 (U.N. Doc.
FCCC/1995/Inf.3, at 1). The convention's Parties have met for seven times since
its adoption in 1992. COP-1 met in Berlin in 1995 (see Report of COP-1, U.N.
Doc. FCCC/CP/1995/7 (with one addendum)[ hereinafter COP-1 Report]; COP-2 in
Geneva in 1996 (see Report of COP-2 U.N. Doc. FCCC/CP/1996/15 (with one
addendum and one corrigendum)) [hereinafter COP-2 Report]; COP-3 in Kyoto in
1997 (see Report of COP-3, U.N. Doc. FCCC/CP/1997/7 (with one addendum and two
corrigenda)) [hereinafter COP-3 Report]; COP-4 in Buenos Aires in 1998 (see
COP-4 Report U.N. Doc. FCCC/CP/1998/16 (with one addendum)) [hereinafter COP-4
Report]; COP-5 in Bonn in 1999 (FCCC/CP/1999/6 (with one addendum))
[hereinafter COP-5 Report], COP-6 (which had two sessions in the Hague in 2000
and in Bonn in 2001 (COP-6.5) (see COP-6 Report, U.N. Doc. FCCC/CP/2000/5 (with
four addenda, including 5 volumes to Add.3) and COP-6.5 Report, supra note 20.;
and COP-7 in Marrakech in 2001 (see COP-7 report, supra note 20). All documents
listed available at <http://www.unfccc.int> (visited Oct. 11, 2001).
n24 Those issues included the financial mechanism, technology transfer, adverse
effects, activities implemented jointly (AIJ) under the pilot phase, the Kyoto
mechanisms, the monitoring, reporting and verification rules and a compliance
regime for the Protocol. See Cop-4 Report, supra note 23.
n25 See Suraje Dessai, Why did the Hague Climate Conference Fail?, 10
Environmental Politics 139-144 (2001).
n26 See COP-6.5 Report; and Goldberg & Silverthorne, supra note 20.
n27 See COP-7 Report, supra note 20.
n28 HANS SMIT & PETER E. HERZOG, THE LAW OF THE EUROPEAN COMMUNITY, Vol. 1,
§ 1.02 (Publication 623, Release 40, July 2001).
n29 Richard Macrory & Martin Hession, The European Community and Climate
Change, in O'RIORDAN & JAGER, supra note 3, at 106 [hereinafter Marcory
& Hession].
n30 PAUL CRAIG & GRAINNE DE
BURCA, EU LAW 163-167 (1998) [hereinafter CRAIG & DE BURCA]. EC
Treaty art. 249 (ex Article 189) (see infra note 31) lists the different legal
instruments that the EU has at its disposal: Regulations are binding in their
entirety and apply directly in all Member States. Directives are binding, as to
the result achieved, upon each Member State to which they are addressed. They
leave the choice of form and methods to the national authorities. Decisions are
binding in their entirety upon the addressees. Recommendations and opinions are
not binding.
n31 Treaty establishing the European Community (hereinafter EC Treaty) as
amended by the 1997 Treaty of Amsterdam, available at
<http://www.europa.eu.int/eur - lex/en/treaties/dat/ecconstreatyen.pdf>
(visited Dec. 11, 2001). As the Treaty of Amsterdam renumbered the articles of
the EC Treaty, we will cite the old article in parentheses. In late 2000, the
Treaty of Nice amended the Amsterdam Treaty, but the former has not yet entered
into force. The Nice treaty has not nonetheless clarified the questions
addressed in this paper. We will therefore not take it into account in our
analysis. See, for an analysis of EU environmental policy after Nice, Andrew
Jordan & Jenny Fairbrass, European Union Environmental Policy after the
Nice Summit, 10 ENVT'L POLITICS 109-114.
n32 The word "competence" is used often by europeans in describing
the mandate and/or relationships between eu states and the commission, etc.
However, the word is not typically used that way in the U.S.
n33 EC Treaty art. 5, P 1 (ex Article 3b); CRAIG & DE BURCA, supra note 30,
at 124. Further, the Community has legal personality insofar as the Member States
have conferred competence on it. See EC Treaty art. 281 (ex Article 210), supra
note 31; P.J.G. KAPTEYN & P. VERLOREN VAN THEMAAT, INTRODUCTION TO THE LAW
OF THE EUROPEAN COMMUNITIES 97-101 (1998) [hereinafter KAPTEYN & VAN
THEMAAT].
n34 CRAIG & DE BURCA, supra note 30, at 124-126.
n35 Macrory & Hession, supra note 29, at 106, 123.
n36 Agnethe Dahl, Competence and Subsidiarity, in GUPTA & GRUBB, supra note
4, at 203, 205 [hereinafter Dahl].
n37 Id. at 203, 213.
n38 EC Treaty art. 5 P 2 (ex Article 3b), supra note 31.
n39 Former Article 130r (for explanation, see supra note 31).
n40 Ute Collier, The EU and Climate Change Policy: the Struggle over Policy
Competences, in CASES IN CLIMATE CHANGE POLICY 43, 48 (Ute Collier & Ragnar
Lofstedt eds., 1997 [hereinafter COLLIER & LoFSTEDT]) [hereinafter
Collier].
n41 See Collier, id at 43, 53-55; Dahl, supra note 36, at 203, 217; Haigh,
supra note 3, at 165, 179; and IAN MANNERS, SUBSTANCE AND SYMBOLISM: AN ANATOMY
OF COOPERATION IN THE NEW EUROPE 74 (2000) [hereinafter MANNERS].
n42 For an overview see Dahl, supra note 36, at 203, 208, and Collier, supra
note 40, at 43, 49, 50.
n43 Id. at 43, 49; also Dahl, supra note 36, at 203, 209.
n44 See Section IV.X below.
n45 See Collier, supra note 40, at 43, 55; Dahl, supra note 36, at 203, 216;
and Haigh, supra note 3, at 155, 166, 175, 179.
n46 Dahl, supra note 36, at 203, 204.
n47 CRAIG & DE BURCA, supra note 30, at 115-119; Macrory & Hession,
supra note 29, at 106, 123-125.
n48 Joseph Jupille & James A. Caporaso, States, Agency, and Rules: The
European Union in Global Environmental Politics, in THE EUROPEAN UNION IN THE
WORLD COMMUNITY (Carolyn Rhodes ed., 1998 [hereinafter RHODES) 213, 218
[hereinafter Jupille & Caporaso].
n49 Macrory & Hession, supra note 29, at 106, 113, 136.
n50 Id. at 213, 218. See also Jupille & Caporaso, supra note 48, at 222,
further note on the UNFCCC negotiations that with the exception of areas of
exclusive competence, "the EC's authority was rarely clear to anyone,
including the EC participants themselves."
n51 Id. at 213, 222.
n52 Id. at 213, 225.
n53 Macrory & Hession, supra note 29, at 106, 136. See also Section III.D.1
below.
n54 OBERTHUR & OTT, supra note 3, at 268; Hermann E. Ott, Climate change: an
important foreign policy issue, 77 INT'L AFF. 277, 285 (2001) [hereinafter
Ott].
n55 Joyeeta Gupta & Lasse Ringius, The EU's Climate Leadership: Reconciling
Ambition and Reality, 1 INT'L ENVTL. AGREEMENTS 281 286 (2001) [hereinafter
Gupta & Ringius]; MANNERS, supra note 41, at 57-58; Bert Metz et al., How
Can the European Union Contribute to a COP-6 Agreement?, 1 INT'L ENVTL.
AGREEMENTS 167, 169 (2001) [hereinafter Metz et al]; Accord Jupille &
Caporaso, supra note 48, at 213, 219, 226.
n56 Mikael Skou Anderson & Lise Nordvig Rasmussen, The Making of
Environmentl Policy in the European Council, 36 J. OF COMMON MKT. STUDIES
585-97.
n57 EC Treaty art. 202-210 (ex Articles 145-154), supra note 31; CRAIG & DE
BURCA, supra note 30, at 57-58.
n58 Henry D. Jacoby & David M. Reiner, Getting climate policy on track
after The Hague, 77 INT'L AFF. 297, 300 (2001) [hereinafter Jacoby &
Reiner].
n59 KAPTEYN & VAN THEMAAT, supra note 33, at 187-188.
n60 CRAIG & DE BURCA, supra note 30, at 130 (1998). EC Treaty art. 205 P 2
(ex Article 148), supra note 31, defines the qualified majority.
n61 EC Treaty art. 251 (ex Article 189b), id.
n62 EC Treaty art. 175, P 1 (ex Article 130s), id.
n63 MANNERS, supra note 41, at 64.
n64 Yamin, supra note 12; and GUPTA & GRUBB, supra note 4.
n65 See infra Section II.D.2.
n66 Historically, smaller Member States have been more prone to reaching
consensus -- and to a certain extent foregoing their strict national position
in favor of an overall EU position. Thus has been clearly the case for Sweden
and Belgium in recent years. Bigger Member States, in contrast, tend to try to
impose their own priorities, or to broker agreement with other bigger states or
influential smaller states.
n67 OBERTHUR & OTT, supra note 3, at 65.
n68 EC Treaty art. 300 P 2 (ex Article 228), supra note 31.
n69 EC Treaty art. 300 P 1, subparagraph 2, and P 2, subparagraph 1 (ex Article
228), supra note 31.
n70 Haigh, supra note 3, at 155, 178.
n71 Commission Proposal for a Council Decision, COM(2001) 579, available at
<http://europa.eu.int /comm/environment/climat/com/01579en.pdf> (visited
Dec. 11, 2001).
n72 See 2413th European Council of Environmental Ministers, Brussels, Mar. 4,
2002 (provisional version). Available at: http://ue.eu.int/en/summ.htm (visited
Mar. 5, 2002) [hereinafter March 2002 Council].
n73 EC Treaty art. 203 P 2 (ex Article 146), supra note 31.
n74 After the Treaty of European Union and The Treaty of Amsterdam, supra note
3, the Troika currently consists of the Presidency in office, the
Secretary-General of the Council, in his capacity as High Representative for
the common foreign and security policy, and the Member State which is next in
line for the Presidency. In the climate context, however, the practice has been
to use the traditional rather than the current Troika i.e. the Presidency in
office, the Member State to hold the next Presidency and the Commission. See
Glossary, available at: http://www.europa.eu.int/scadplus/leg/
en/cig/g4000t.htm#t6 (visited Dec. 10, 2001).
n75 OBERTHUR & OTT, supra note 3, at 14.
n76 CRAIG & DE BURCA, supra note 30, at 58-59; OBERTHUR & OTT, supra
note 3, at 66.
n77 OBERTHUR & OTT, supra note 3, at 67.
n78 Article 17 states that Parties' use of international emissions trading
"shall be supplemental to domestic actions for the purpose of meeting [the
emissions targets]." (Emphasis added.) This language was included upon the
insistence of the EU. See Joanna Depledge, Tracing the Origins of the Kyoto
Protocol: an Article-by-Article Textual History U.N. Doc. FCCC/TP/2000/2 (2000)
[hereinafter Depledge], at 83-85; OBERTHUR & OTT, supra note 3, at 188-205.
See also Section X, below.
n79 See 2178th Council of Agriculture Ministers, Brussels May 17, 1999.
Available at: http://ue.eu.int/newsroom/newmain.asp?lang=1 (visited Dec. 12,
2001).
n80 Especially during COP-6.
n81 See Michael Grubb and Farhana Yamin, Climatic collapse at The Hague: What
happened, why, and where do we go from here?, INTERNATIONAL AFFAIRS 77, 2
(2001), at 263-264, available at: www.field.org.uk/papers/pdf/cop6.pdf (visited
Apr. 12, 2002) [hereinafter Grubb & Yamin]; and Ott, supra note 54, at 277.
n82 Such a technical legal division of labor has, as a matter of fact, been
commonplace for quite some time, at least since 1995. It derives mainly from
the extreme complexity of the issues under negotiation (which include the
setting of an elaborated set of rules on a an international monitoring,
reporting and verification regime for GHGs emissions, as well as an
international emissions trading system), a growing sense of team work at the
technical level, and also the fact that virtually every Presidency lacks the
capacity to tackle comprehensively and effectively such issues.
n83 OBERTHUR & OTT, supra note 3, at 268; Ott, supra note 54, at 277, 285.
n84 Ott, id., at 277, 285; cf. also Sebastian Oberthur, The EU as an
International Actor: The Protection of the Ozone Layer, 37 J. OF COMMON MKT.
STUDIES 641, 646 (1999) [hereinafter Oberthur 1999].
n85 Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland,
Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, and the United
Kingdom.
n86 For instance, with the exception of the UK, the EU as a whole and every EU
Member State are net importers of energy. GRUBB ET AL, supra note 11, at 30.
For a comprehensive review of Member States and Community's greenhouse gas
emissions and trends, see Commission of the European Communities, Report under
Council [on the] monitoring mechanism of Community greenhouse gas emissions,
Nov. 30, 2001, COM(2001) 708 Final.
n87 Ute Collier, The EU and Climate Change Policy: the Struggle over Policy
Competences, in CASES IN CLIMATE CHANGE POLICY 43, 44 (Ute Collier & Ragnar
Lofstedt eds., 1997).
n88 GRUBB ET AL, supra, note 11, at 30.
n89 CLIVE H. CHURCH & DAVID PHINNEMORE, EUROPEAN UNION AND EUROPEAN
COMMUNITY 49, 508 (1994).
n90 These countries are those usually more sensitive to environmental issues in
general.
n91 MANNERS, supra note 41, at 60-62. More recently, the UK has adopted
positions closer to the EU majority, id., at 76.
n92 EU negotiators often feel exasperated by the lack of leeway they are
awarded in negotiating the EU position. That is because they are essentially
tied to the wording of the most current Council conclusions, which are by
definition starting positions. However, the internal EU dynamics at
international climate meetings is less than prone to rapid changes. That is
essentially due to the fact that the EU has typically not fully discussed
bottom line positions before the start of the negotiations. It thus spends most
of the precious negotiation time discussing internally rather than trying to
convince other Parties of its own positions and trying to reach agreement. It
comes therefore as no surprise to repeatedly observe Member States'
representatives bickering in the media, as was the case after COP-6 in 2000
(Grubb&Yamin, supra note 81, at 263-4; and Ott, supra note 54, at. 277).
n93 http://www.bmu.de/reden/redetrittin011208.php (visited Dec.17, 2001).
n94 RUDOLF GEIGER, EG-VERTRAG Article 155/2 (1995).
n95 For the role of the European Commission, see
http://www.europa.eu.int/comm/roleen.htm#3 (visited Dec. 10, 2001).
n96 EC Treaty art. 211, 249-252 (ex Articles 155, 189189c), supra note 31. In
the field of environmental policy, this power flows from Articles 175, 251 EC
Treaty (ex Articles 130s, 189b), id.
n97 EC Treaty art. 213 paras 1, 2 (ex Article 157), id; KAPTEYN & VAN
THEMAAT, supra note 33, at 195-196.
n98 EC Treaty art. 219 P 2 (ex Article 163), and Article 213, paragraphs 1 and
2 (ex Article 157), supra note 31.
n99 For an overview of Commission's Directorates-General and Services, see
generally <http://www.europa.eu.int/comm/dgsen.htm> (visited Dec. 10,
2001).
n100 MANNERS, supra note 41, at 69-70, 73.
n101 Id. at 63-4 (2000).
n102 Macrory & Hession, supra note 29, at 106, 112; for a detailed
description of its role in ozone negotiations see Oberthur 1999, supra note 84,
at 641, 645-646.
n103 Such authorization of the Commission by a Council decision is provided for
in EC Treaty art. 300 P 1 (ex Article 228), supra note 31.
n104 OBERTHUR & OTT, supra note 3, at 66.
n105 See Section II.D.2.
n106 OBERTHUR & OTT, supra note 3, at 269.
n107 Ott, supra note 54, at 277, 285.
n108 OBERTHUR & OTT, supra note 3, at 66.
n109 Id. at 286-269; Oberthur 1999, supra note 84, at 641, 645-646; Ott, supra
note 54, at 277, 285.
n110 Chad Carpenter, Business, green groups and the media: the role of
nongovernmental organizations in the climate change debate, 77 INT'L AFF., 313
314 (2001) [hereinafter Carpenter].
n111 Id. at 313 314; Clair Gough & Simon Shackley, The respectable politics
of climate change: the epistemic communities and NGOs, 77 INT'L AFF. 329, 334 (2001)
[hereinafter Gough & Shackley].
n112 The Economist, May 9, 1992, at 19.
n113 Commission of the EC, Proposal for a Council Directive Introducing a Tax
on Carbon Dioxide Emissions and Energy, 30 June 1992, COM(92) 226 Final, at 4;
(for a general description of the evolution of EU policy from "no
regrets" to conditionality in this early phase see IAN MANNERS, supra note
41, at 42-9, 59-60, 63-4, 70; and Jorge Wettestad, The complicated development
of EU climate policy: lessons learnt, in GUBTA & GRUBB, , supra note4,
25-45 [hereinafter Wettestad]. For current UNICE policy see
<http://www.unice.org> (visited Dec. 11, 2001).
n114 For a detailed account see Carpenter, supra note 110, at 313 314-319. See
also Gough & Shackley, supra note 111, at 329, 334; Gupta & Ringius,
supra note 55, at 281 286; WWF Climate Savers, available at
<http://www.panda.org/climate/savers.cfm> (visited Dec. 6, 2001).
n115 The Global Climate Coalition closed down recently, possibly attesting to
the fact that it was rapidly losing membership. See Nature, Feb. 7, 2002, at
567.
n116 Business Environmental Leadership Council, available at <http://www.pew
climate.org/belc/ index.cfm> (visited Dec. 6, 2001); Gough & Shackley,
supra note 111, at 329, 334.
n117 e5: History, available at <http://www.e5.org/pages/energy.htm>
(visited Dec. 6, 2001); The Sustainable Energy Charter , available at
<http://www.e5.org/pages/sec .htm> (visited Dec. 6, 2001).
n118 e-mission 55, available at
<http://www.solarworld.de/EMission-55/frameindex/e index.htm> (visited
Dec. 10, 2001).
n119 e5 Members 2001, available at <http://www.e5.org/pages/comp.htm>
(visited Dec. 6, 2001); e-mission 55 Solution Site, available at
<http://www.solarworld.de/EMission-55/solutions/ehome.htm> (visited Dec.
6, 2001).
n120 See <http://www.climatenetwork.org> (visited Dec. 12, 2001). CAN has
a global membership of 20 Million people, PETER NEWELL, CLIMATE FOR CHANGE 128
(2000) [hereinafter NEWELL].
n121 Carpenter, supra note 110, at 313 319.
n122 For reports on some COP-7 side events see Earth Negotiations Bulletin -On
the Side, available at <http://www.iisd.ca/linkages/climate/cop7/enbots>
(visited Dec. 12, 2001).
n123 See e.g. Independent NGO Evaluation of National Plan for Climate Change
Mitigation: Second Review, August 1994, Climate Action Network.
n124 See Climate Network, available at <http://www.climatenetwork.org>
(visited Dec. 12, 2001).
n125 Carpenter, supra note 110, at 313 319-321; for an extensive overview over
different NGOs see Gough & Shackley, supra note 111, at 329, 336-339,
341-345. For a portrayal of CAN see Matthias Duwe, The Climate Action Network:
global civil society at work?, 10 RECIEL 177-189 (2001) [hereinafter Duwe].
n126 Gough & Shackley, supra note 111, at 329, 329; similar MANNERS, supra
note 41, at 69.
n127 Peter M. Haas, Epistemic Communities and the Dynamics of International
Environmental Co-Operation, in REGIME THEORY AND INTERNATIONAL RELATIONS 168,
179 (Volker Rittberger ed. with assistance of Peter Mayer 1993).
n128 See List of Participants, FCCC/CP/2000/INF.2, available at
<http://cop6.unfccc.int/pdf/lopcop6 .pdf> (visited Dec. 11, 2001).
n129 E.g. Oberthur 1999, supra note 84, at 641: see n. at 641; Jurgen Lefevere
& Farhana Yamin, The EC as a Party to the FCCC/KP: An examination of EC
competence (1999), available at
<http://www.field.org.uk/papers/pdf/2%20ECcompetence.pdf> (visited Dec.
7, 2001).
n130 On environmental NGO consultation by the Commission in general see John
McCormick, Environmental Policy and the European Union, in INTERNATIONAL
ORGANIZATIONS AND ENVIRONMENTAL POLICY 37 (Robert v. Bartlett et al. eds. 1995
[hereinafter BARTLETT ET AL]) at 46-47. On the relationship between NGOs and
some European governments, see NEWELL, supra note 120, at 134.
n131 CLIMATE ACTION NETWORK INTERNATIONAL NGO DIRECTORY 2000.
n132 MANNERS, supra note 41, at 68.
n133 Grubb&Yamin, supra note 81,at 263; and Ott, supra note 54, at 283-284.
n134 Duwe, supra note 125, at 177.
n135 Personal interview with Joanna Krinn, U.S.-CAN (Dec. 11, 2001).
n136 Staff, available at <http://www.climnet.org> (visited Mar. 5, 2002).
n137 It is not uncommon in Europe for NGOs to receive partial financial support
from public authorities including the State. This is partly due to the fact
that, unlike in the U.S., private foundations are less predominant in Europe,
and the State has traditionally a bigger role--including a financial role--in
society in general.
n138 Personal interview with Joanna Krinn, U.S.-CAN (Dec. 11, 2001). CNE staff
includes energy specialists and a climate policy researcher, CNE Staff,
available at <http://www.climnet.org> (visited Dec. 11, 2001).
n139 See also Axel Michaelowa, Impact of Interest Groups on EU Climate Policy,
8 European Environment 152-160 (1998). A recent poll confirmed a trend that
"Europeans continue to trust NGOs twice as much as government and
substantially more than corporations or the media." See Edelman PR
Worldwide, Second annual survey of U.S. and European Opinion Leaders (on file with
authors).
n140 Comparing briefly CAN Europe with U.S.-CAN, the latter has focused
primarily on coordinating those NGOs with offices in Washington, D.C. As a
result, there is a high level of coordination--and arguably effectiveness--of
NGO activity in the U.S. capital (Personal interview with Joanna Krinn,
U.S.-CAN (Dec. 11, 2001), which is primarily aimed at the Federal Government.
n141 NEWELL, supra note 120, at 70-1, 76, 85-6.
n142 MANNERS, supra note 41, at 70-1.
n143 See NEWELL, supra note 120, at 70 for acid rain; and Oberthur 1999, supra
note 84, at 641, 648-650 for ozone politics, both referring to Germany.
n144 NEWELL, supra note 120, at 71-72; Priya A. Kurian, The U.S. Congress and
the World Banks, in BARTLETT ET AL, supra note 130, at 103, 106-107
n145 Carpenter, supra note 110, at 313, 321-5. Lists of recent reports are
available e.g. in the IISD's bi-weekly news summary "Climate News",
available at <http://www.cckn.net/climate news.asp> (visited Dec. 12,
2001), and - with a more European focus - on the CNE website, available at
<http://www.climnet.org/news/ news.htm> (visited Dec. 12, 2001).
n146 List of Participants, FCCC/CP/2000/INF.2, www.unfccc.int (visited Dec. 11,
2001).
n147 Carpenter, supra note 110, at, 313, 319.
n148 See for an analysis of media coverage in Portugal Suraje Dessai, Kevin
Branco, Miguel de Franca Doria, Climate Change and Media in Portugal:
Preliminary Results, poster presented at the International Conference on
Climate Change: Science, Economics and Politics, Lisbon: November 3-4, 2000 (on
file with authors).
n149 NEWELL, supra note 120, at 79-86 with many examples.
n150 Id. at 69 and references in 68-95.
n151 This section is partly based on Suraje Dessai and Nuno Lacasta, What has
the European Union Been Doing on Climate Change? (2001) (unpublished manuscript
on file with autors) [hereinafter Dessai & Lacasta 2001].
n152 For several analyses of different Member States plans and policies, see
e.g. JOHN GUMMER AND ROBERT MORELAND, THE EUROPEAN UNION & GLOBAL CLIMATE
CHANGE, A REVIEW OF FIVE NATIONAL PROGRAMS, PEW CENTER ON GLOBAL CLIMATE
CHANGE, 2000 [hereinafter GUMMER & MORELAND]; Heather Broadbent, Study of
the Dutch, French and British Climate Change Programmes, Euronatura Working Paper
1/201 (January 2001), available at: <www.euronatura.pt> (visited Oct. 10,
2001) [hereinafter Broadbent]; Suraje Dessai and Axel Michaelowa, Burden
sharing and cohesion countries in European climate policy: the Portuguese
example, 3/1 Climate Policy 327-341 (2001) [hereinafter Dessai &
Michaelowa]; Nick Eyre, Carbon Reduction in the Real World: How the UK will
Surpass its Kyoto Obligations, 1/3 Climate Policy 309-326 [hereinafter
"Eyre"]; and Joachim Schleich et al., Greenhouse Gas Reductions in
Germany ---lucky strike or hard work?, id. at 363-380 [hereinafter Schleich et
al].
n153 See section IV, above.
n154 See Wettestad, supra note 113, at 27-35.
n155 At its founding in 1957, the EU had no environmental policy, no
environmental bureaucracy, and no environmental laws. When, in 1973, the EU
began systematically to address environmental concerns there was little
expectation that the environment would develop into one of the largest areas of
common activity. See Andrew Jordan, The implementation of EU environmental
policy: a policy problem without a political solution?, 17 ENVIRONMENT AND
PLANNING C: GOVERNMENT AND POLICY, 69-90 (1999)[hereinafter Jordan].
n156 Dahl, supra note 36, at 203-220.
n157 See Wettestad, supra note 113, at 27.
n158 See EEC Fourth Environmental Action Programme (1987-1992), O.J. (C328)
7.12.1987.
n159 See Haigh, supra note 3, at 161.
n160 See European Community Conclusions on climate change. Council of
Environment Ministers, European Community, October 1990.
n161 See Community strategy to limit carbon dioxide emissions and to improve
energy efficiency, COM(92) 246. Given the Commission's traditional desire to
expand its competence, it chose the path of trying to develop a complete and
ambitious package of measures to be agreed together (See Haigh, supra note 3,
at 164.
n162 Decision 91/565/EC [7] established a program to promote energy efficiency
in the Community (the SAVE program); O.J. (L 307) 08.11.1991, at 34.
n163 It was estimated that the program could lead to emission reductions of
about 3% in the year 2000 (Wettestad, supra note 113, at 31-32).
n164 See WYN GRANT, DUNCAN MATTHEWS & PETER NEWELL, THE EFFECTIVENESS OF
EUROPEAN UNION ENVIRONMENTAL POLICY, MACMILLAN PRESS, LONDON (2000), Section
III [hereinafter GRANT ET AL].
n165 Id. Section III and note 5.
n166 Collier as quoted by Wettestad, supra note 113, at 32.
n167 Decision 96/737/EC established the new multi-annual SAVE II program to
continue and strengthen the action of the original SAVE program. See Council
Decision 96/737/EC, O.J. (L335) 24.12.96.
n168 The originally proposed 150 million ECU budget of SAVE II was cut to 45
million by the Energy Council in May 1996. See Wettestad, supra note 113, at
32).
n169 See GRANT ET AL, supra note 164, Section III.
n170 For the strengthening of existing measures to promote the dissemination of
better energy conversion and use technologies.
n171 Focusing on energy research and development.
n172 See GRANT ET AL, supra note 164, Section III.
n173 See http://europa.eu.int/comm/energy/en/prog5.htm, (visited Mar. 4, 2002).
n174 Council Decision 93/500/EEC on the adoption of a Program for the Promotion
of Renewable Energy Sources, O.J. (L 235) 18.9.1993, at 41).
n175 See Wettestad, supra note 113, at 32.
n176 Id. at 32.
n177 Council Decision concerning a multi-annual program for the promotion of
renewable energy sources in the Community (Altener II), 98/352/EC, O.J. (L159)
03/06/1998, at 53.
n178 Communication from the Commission: Energy for the future: Renewable Energy
Sources - White Paper for a Community Strategy and Action Plan, COM(97)599
final. According to the White Paper, renewables currently supply just 5.3 per
cent of EU energy consumption.
n179 See GRANT ET AL, supra note 164. Efforts to promote renewables are also
undermined by the continued use of subsidies to fossil fuels. A Greenpeace
report on 'Energy subsidies in Europe' showed that more than 90 per cent of
direct subsidies from European governments to the energy industry go to fossil
fuels. Kirsty Hamilton, The Oil Industry and Climate Change 14 (Greenpeace
International 1998).
n180 Directive on the promotion of electricity produced from renewable energy
sources in the internal electricity market, 2001/77/EC, O.J. (L.283)
27.10.2001, at 33.
n181 Energy for the future: renewable sources of energy, COM(97)599 final; also
known as White Paper for a Community Strategy and Action Plan.
n182 Article 3 of supra note 180.
n183 Id.
n184 See Jordan, supra note 155, at 69.
n185 Proposal for a Council Directive introducing a tax on carbon dioxide
emissions and energy, COM(92)226 final.
n186 Id.
n187 The Treaty of Maastricht created the so-called "Cohesion Fund"
aimed at financing infrastructure and environmental projects in those Member
States where the gross national domestic is less than 90% of the EU average.
Greece, Ireland, Portugal and Spain are currently within that threshold, and
are thus knows as "cohesion" Member States. See Maastrich Treaty,
supra note 3.
n188 See Skjaerseth as quoted by Wettestad, supra note 113, at 29.
n189 Hence, the UK's objection to a CO2 tax did not concern the idea of fiscal
measures in the climate change package as such but rather tax harmonization at
the EU level. Taxation for the UK is the responsibility of the Member States
(Haigh, supra note 3, at 165; Dahl, supra note 36, at 217).
n190 Haigh, id., at 165-166.
n191 Wettestad, supra note 113, at 29.
n192 See Dessai & Lacasta 2001, supra note 151, at 9.
n193 Council Decision 93/389/EEC for a monitoring mechanism of Community CO2
and other greenhouse gas emissions, O.J. (L 167) 9.7.1993, at 31.
n194 Id. Article 2.1. See also Joy Hyvarinen, The European Community's
Monitoring Mechanism for CO2 and other Greenhouse Gases; the Kyoto Protocol and
other Recent Development, 8 RECIEL, 191, 197 n.2 (2000) [hereinafter
Hyvarinen].
n195 The first evaluation report, which was issued on 10.03.1994, covers the
period 1990-1993. See Report from the Commission under Council Decision
93/389/EEC, First Evaluation of Existing National Programs under the Monitoring
Mechanism of Community CO2 and Other Greenhouse Gas Emissions COM(94)67 final,
10.03.1994 at 6. The second evaluation report was issued on 14 March 1996. See
Report from the Commission under Council Decision 93/389/EEC, Second Evaluation
of Existing National Programmes under the Monitoring Mechanism of Community CO2
and Other Greenhouse Gas Emissions COM(96)91 final, 14.03.1996, at 1.
n196 Id.
n197 See Hyvarinen supra note 194, at 193.
n198 Council Decision 99/296/EC amending Decision 93/389/EEC for a monitoring
mechanism of Community CO2 and other greenhouse gas emissions, O.J. (L 117)
05.05.1999, at 35.
n199 See e.g. Haigh, supra note 3; and Hyvarinen, supra note 194.
n200 Report under Council Decision 1999/296/EC for a monitoring mechanism of
Community greenhouse gas emissions, COM(2000)749, final 22.11.2000.
n201 Id.
n202 Natural gas particular emits less CO2 than coal or oil. See GRUBB ET AL,
supra note 11, at 81.
n203 1999/31/EC Council Directive 1999/31/EC of Apr. 26, 1999 on the landfill
of waste, O.J. (L 182) 16.07.1999, at .1
n204 See Christoph Bail, Simon Marr and Sebastian Oberthur, Klimaschutz und
Recht (2002) (manuscript on file with authors).
n205 See Wettestad supra note 113, at 37.
n206 See Skjaerseth as quoted by Wettestad, id. at 37-38.
n207 For a review of voluntary agreements in Member States, See OECD, Voluntary
Approaches for Environmental Protection in the European Union (Dec.10, 1998),
ENV/EPOC/GEEI(98)29/FINAL.
n208 See ACEA and European Commission, CO2 emissions from cars, The EU
Implementing the Kyoto Protocol (1998).
n209 See Wettestad, supra note 113, at 39.
n210 Commission Recommendation of Apr. 13, 2000 on the reduction of CO2
emissions from passenger cars (KAMA), O.J. (L 100) 20.04.2000, at 55.
Commission Recommendation of Apr. 13, 2000 on the reduction of CO2 emissions
from passenger cars (JAMA), O.J. (L 100) 20.04.2000, at 57.
n211 Id, at 38.
n212 Id .
n213 Council Conclusions on a Community strategy on Climate Change, Doc.
11654/99, Luxembourg Oct. 12, 1999.
n214 Communication from the Commission on EU policies and measures to reduce
greenhouse gas emissions: Towards a European Climate Change Programme (ECCP),
COM(2000)88 Final 8.3.2000 [hereinafter ECCP Communication].
n215 For a review of some Member State's climate programs, See Eyre; Scleich et
al.; GUMMER & MORELAND; Broadbent; and Dessai & Michaelowa, all supra
note 152.
n216 Which has brought together relevant stakeholders such as representatives
of the Commission, the Member States, industry and the NGO community. See ECCP
Communication, supra note 214.
n217 Id.
n218 Composed of all Commission services that take part in the ECCP.
n219 Kornelis Blok, David de Jager and Chris Hendriks. Economic Evaluation of
Sectoral Emission Reduction Objectives for Climate Change - Summary Report for
Policy Makers, ECOFYS Energy and Environment, March 2001 [hereinafter Blok et
al].
n220 Id. at 1. The intention was to identify a least-cost allocation so that
the cost of production of energy and other goods would increase as little as
possible.
n221 Had the allocation been done at a Member State level instead of EU-wide,
the compliance costs would more than double (Id. at iv).
n222 European Commission Proposal for ratification of the Kyoto Protocol by the
European Community COM(2001)579 final;
n223 Blok et al, supra note 219, at iv-v.
n224 See European Commission Communication on the implementation of the first
phase of the ECCP COM(2001)580 final.
n225 GUPTA & GRUBB, supra note 4, at 21
n226 Communication from the Commission to the Council and the European
Parliament Preparing for Implementation of the Kyoto Protocol COM(1999)230,
final.
n227 Green Paper on greenhouse gas emissions trading within the European Union,
COM(2000)87, final [hereinafter Emissions Trading Greenpaper].
n228 See <http://europa.eu.int/comm/environment/docum/0087en.htm seen in 23
Jan. 02> (visited Dec. 9, 2001).
n229 The difficulties that might result from inconsistent systems within the EU
offer a microcosm of the larger challenge. See Jacoby & Reiner, supra note
58, at 310.
n230 Proposal for a framework Directive for greenhouse gas emissions trading
within the European Community, COM(2001)581, final.
n231 See Emissions Trading Green paper, supra note 227, at 7-9.
n232 See for example ENDS daily: "EU states divided over climate emission
trading", 13/12/2001, available at:
www.environmentdaily.com/articles/index.cfm?action=articleref= 11232&searchtext=Euistatesdivided&seerchtype=phrase
(visited Apr. 12, 2002).
n233 See supra table 1.
n234 Article 25.1 of the Protocol, supra note 6.
n235 See e.g. Dessai & Lacasta 2001, supra note 151; Yamin, supra note 12;
and OBERTHUR & OTT, supra note 3.
n236 GRUBB ET AL, supra note11, at 65, define "policies and measures"
as "any action which Parties can adopt, either nationally or
internationally, to reduce emissions or enhance sinks."
n237 Organization of Petroleum Exporting Countries.
n238 JUSSCANNZ was an informal grouping of the following like-minded countries:
Japan, United States, Switzerland, Canada, Australia, Norway and New Zealand.
After the adoption of the Protocol, with Switzerland dropping out, the
remaining members plus Iceland, Russia and Ukraine became to be knows as
"Umbrella Group." This more recent formation is especially focused on
a coordinated position around the Protocol's flexible mechanisms of joint
implementation (Article 6), clean development mechanism (Article 12) and international
emissions trading (Article 17). See Kyoto Protocol, supra note 6.
n239 See COP-1 Report, Decision 1/CP.1, supra note 23;. This process was called
the Ad Hoc Group on the Berlin Mandate or "AGBM." Id.
n240 See U.N. Doc. FCCC/AGBM/1997/3/Add.1, at 103-123.
n241 Yamin, supra note 12, at 53.
n242 Japan (which nonetheless presented its own proposal), the Alliance of
Small Island States (AOSIS) and some Central and Eastern European countries in
the line up for EU membership conveyed some mild, however unsubstantiated,
support. In fact, the EU's first attempt in 1995 to discuss policies and
measures had been "met with little enthusiasm." See e.g. GRUBB ET AL,
supra note 11, at 63.
n243 Which led some EU Member States to believe the U.S. was might be for
policies and measures rather than targets. See OBERTHUR & OTT, supra note
3, at 105.
n244 Statement of Stuart Eizenstat before the U.S. House International
Relations Committee, Washington, DC, 13 May 1998, as quoted in OBERTHUR &
OTT, supra note 3, id.
n245 OBERTHUR & OTT, supra note 3, at 104; and Yamin, supra note 12, at 53.
n246 See supra, section II, and the discussion therein on climate change as an
area of "shared" or "mixed" competence between the EC and
its Member States.
n247 As explained supra in Section II, Under the EC treaty the Commission
retains the exclusive competence to propose EC regulatory measures.
n248 See for a discussion on the principle of conditionality of the EU proposal
of a energy/carbon tax, Wettestad, supra note 113; and Manners, supra note 41.
n249 The notion of an internationally coordinated carbon tax had been opposed
by most OECD members and OPEC, even in the run-up to the UNFCCC. GRUBB ET AL,
supra note11, at 67, even suggest that the EU proposal on policies with its
taxation component was "thinly veiled criticism of cheap U.S. gasoline (a
topic of transatlantic dispute ever since the first oil shock in 1973) and a
red rag to OPEC which viewed such proposals as a conspiracy to grab its oil
rent revenues."
n250 OBERTHUR & OTT, supra note 3, at 103-104 and Yamin, supra note 12, at
53.
n251 See supra note 239.
n252 Yamin, supra note 12, at 53. See also GRUBB ET AL, supra note 11, at 68.
n253 OBERTHUR & OTT, supra note 3, at 105; and Yamin, id., at 52.
n254 See Kyoto Protocol, supra note 6, Article 2.1.
n255 Id.
n256 See COP-7 Report, supra note 20.
n257 The first workshop took place in Denmark in April 2000, and the second
workshop in Norway in October 2001. See, respectively, U.N. Doc. FCCC/SBSTA/2000/2;
and FCCC/CP/SBSTA/2001/INF.5.
n258 See COP-7 Report, Add. 1, supra note 20.
n259 See UNFCCC, supra note 5.
n260 See OBERTHUR & OTT, supra note 3, at 45.
n261 The EU Council of Environmental Ministers of 26.05.1992 had merely
indicated a willingness to "confirm their readiness to contribute actively
to preparatory work . . . on the review of developed country Parties
commitments, and to the early preparation of Protocols under the Convention
covering specific issues, in particular the limitation of CO2 emissions."
Available at: http://www.environment.fgov.be/Root/tasks/atmos
phere/klim/pub/eu/mainen.htm (visited 12.12.01).
n262 Id.
n263 See Report of COP-1, Decision 1/CP.1, supra note 23.
n264 See U.N. Doc. FCCC/AGBM/1996/MISC.2, at 18-25.
n265 See OBERTHUR & OTT, supra note 3, at 51.
n266 The timetables in this proposal had been previously agreed with the EU.
Id. at 116. See also U.N. Doc. FCCC/AGBM/1996/MISC.2, at 13-18.
n267 At COP-2 the U.S. conceded on taking "binding" targets. See
Speech by Timothy Wirth, Under Secretary of Global Affairs, as quoted by
OBERTHUR & OTT, supra note 3, at 52
n268 Whereas other Parties like the U.S. were pushing for comprehensive
coverage i.e. one that included six rather than three GHGs, the EU was patently
divided on this issue. Countries like Germany, France and Austria had favored a
partial basket of gases. The UK and the Netherlands, on the other hand, were in
favor of a comprehensive approach. See OBERTHUR & OTT, supra note 3, at 120-126.
n269 See 1990th European Council of Environmental Ministers, Brussels, Mar. 3,
1997 [hereinafter March 1997 Council]. The June 1997 Council further proposed a
7.5% reduction for 2005 for the same basket of gases. See 2017th European
Council of Environmental Ministers Luxembourg, 19/20 June 1997. Both docs are
also available at:
www.environment.fgov.be/Root/tasks/atmosphere/klim/pub/eu/mainen.htm (visited
Dec. 10, 2001).
n270 OBERTHUR & OTT, supra note 3, at 118.
n271 France for one favored differentiated targets due to its reliance on
nuclear energy and, consequently, low per capita emissions. See U.N. Doc.
FCCC/AGBM/1997/MISC.1, at 22.
n272 See Yamin, supra note 12, at 55; OBERTHUR & OTT, supra note 3, at 116;
and GRUBB ET AL, supra note11, at 84-86.
n273 Yamin, id; and GRUBB ET AL, id. at 87.
n274 See Kyoto Protocol, supra note6, Annex B.
n275 The EU spent most if its negotiating time either discussing among itself
or talking to the U.S. and Japan. Consequently, it paid less attention to the
concerns of countries with Economies in Transition (EITs), in particular those
which were deemed to join the EU in the mid-term. According to OBERTHUR &
OTT, supra note 3, at 129-130 "...there can be little doubt that the
Polish and Hungarian commitments [-4%] would look different if the EU had been
more proactive in its diplomatic efforts towards those countries...."
n276 Kyoto Protoccol, supra note6, Article 3.1.
n277 The EU's insistence on 1990 as the base year (although somewhat against
the stated opinion of France), constituted a strategic objective for the EU. A
later base year would have put the EU in disadvantage by rewarding those
countries that had not limited their emissions since the adoption of the UNFCCC
in 1992. See GRUBB ET AL, supra note11, at 72. However, not all gases covered
by the Protocol are subject to the 1990 base year. In fact, Parties "may
use" 1995 as the base year for the so-called "industrial gases"
(hydrofluorocarbons, perfluorocarbons and sulphur haxafluoride). See Kyoto Protocol,
supra note6, Article 3.8. This was mainly to accommodate industrial bases'
concerns in Europe and Japan. See GRUBB ET AL, id., at 75-76.
n278 See Kyoto Protocol, supra note6, Annex A. The wider the coverage of gases
the greater the flexibility in reaching one's target. That is why the U.S.
favored a six gas coverage rather than a 3 gas coverage. By COP-3 the U.S. had
also decided to accept differentiated. See OBERTHUR & OTT, supra note 3, at
119 and 128; and GRUBB ET AL, id. at 69, 72-76.
n279 See Kyoto Protocol, supra note 6, Article 3.2, which merely calls for each
Party to have made by 2005 ". . .demonstrable progress in achieving its
commitments under the Protocol." (emphasis added.)
n280 The EU then tried to have it commence in 2003-2007 but it failed. See
OBERTHUR & OTT, supra note 3, at 126.
n281 Kyoto Protocol, supra note6, Article 3.1.
n282 MANNERS, supra note 41.
n283 It had thus interpreted the language in article UNFCCC 4.2(b), supra note,
5, allowing Parties to meet their commitments "individually of
jointly." For an illustration of the EU position on joint fulfilment in
the context of the UNFCCC negotiations, See Daniel Bodansky, The History of the
Climate Change Regime, in SPRINZ & LUTERBACHER, supra note 10, at 33.
n284 March 1997 Council, supra note 269.
n285 The Burden Sharing Agreement of 1997 was based on a proposal prepared by a
team of researchers from Utrecht University in the Netherlands. See K. Blok,
G.J.M. Phylipsen, and J.W. Bode, The triptique approach: burden differentiation
of CO2 emission reduction among European Union Member States, Utrecht
University, Utrecht, 1997. For a detailed account of the burden sharing
negotiations, see Lasse Ringius, Differentiation, leaders and fairness:
negotiating climate commitments in the European Community, 4 International
Negotiation 133-166 (1999).
n286 See Dessai & Michaelowa, supra note 152.
n287 See OBERTHUR & OTT, supra note 3, at 147.
n288 March 1997 Council, supra note 269.
n289 2106th European Council of Environmental Ministers, Luxembourg, 16 June
1998. Available at:
http://www.environment.fgov.be/Root/tasks/atmosphere/klim/pub/eu/mainen.htm
(visited October, 1, 2002).
n290 At the date of this writing virtually every Member State had either
adopted its climate plan, or had developed a first draft of such a plan. See
Sebastian Oberthur & Dennis Tanzler, International Regimes as a Trigger of
Policy Diffusion: The Development of Climate Policies in the European Union,
Annex 1 (Feb. 2002) (manuscript on file with Authors). For analyses of several
plans, see GUMMER & MORELAND; Broadbent; Dessai & Michaelowa; Eyre;
Schleich et al, all supra note 152. See also links to Member States' climate
web sites at: http://www.europa.eu.int/comm/enviroment/climat/ links.htm (visited
Dec. 10, 2002).
n291 See Yamin, supra note 12, at 56-57.
n292 For an analysis of the Article 4 negotiations, see Depledge, supra note
78, at 57-59.
n293 North American Free Trade Agreement Between the Government of the United
States of America, the Government of Canada and the Government of the United
Mexican States, Dec. 17, 1992, U.S.-Can-Mex., 32 I.L.M. 605 (1993).
n294 See Article 4.1, 2, 3 and 5 of the Kyoto Protocol, supra note 6. However,
Parties new that the EU would be the only REIO using this article in the
foreseeable future.
In fact, the EU is the only REIO with at a developed enough stage of
integration (far beyond "economic" in fact) to be able to effectively
enforce--via e.g. the European Court of Justice--the joint responsibility
obligation under Article 4 of the Kyoto Protocol.
n295 Id. Article 4.2 and 4.3. The EU had proposed that the Burden Sharing
Agreement be changed up until "five years before the expiration of the
commitment period." This would have allowed the EU to change the agreement
right before the start of the first commitment period, in 2008, so as to take
on board the expcted new Member States of Central and Eastern Europe. See
OBERTHUR & OTT, supra note 3, at 144. See also Depledge, supra note 78,at
57-59.
n296 Emphasis added.
n297 See Byrd-Hagel Resolution, Expressing the sense of the Senate regarding
the conditions for the United States becoming a signatory to any international
agreement on greenhouse gas emissions under the United Nations Framework Convention
on Climate Change, 105th Congress 1st Session S. RES. 98. (July 25, 1997),
available at: http://www.nationalcenter.org/KyotoSenate.html (visited Dec.10,
2001).
n298 See Yamin, supra note 12, at 62-64; and Lacasta & Barata, supra note
11, at 124125.
n299 See GRUBB ET AL, supra note 11, at 108-111.
n300 Yamin, supra note 12, at 124-125. Developing Countries fear that the
developed countries might convert the climate change regime into a vehicle that
will prevent them from growing economically.
n301 See Tom Athanasiou and Paul Baer, Bonn and Genoa: a tale of two cities and
two movements, Foreign Policy in Focus (Aug. 2001), available at:
http://www.foreignpolicyinfocus.org/ (visited 17.11.01). The EU/G77 coalition
was unable to break the Umbrella group though, even with a silent U.S.
n302 See Suraje Dessai and Nuno S. Lacasta, The Marrakech Accords: Saving or
Sinking the Kyoto Protocol?, Euronatura Working paper 1/2002 (unpublished
manuscript on file with authors)[hereinafter Dessai and Lacasta 2002].
n303 For a review of this proposal, see OBERTHUR & OTT, supra note 3.
n304 See GUPTA & GRUBB, supra note 4.
n305 OBERTHUR & OTT, supra note 3, at 301, termed it a "leadership
initiative."
n306 GUPTA & GRUBB, supra note 4, at 309; and OBERTHUR & OTT, supra
note 3, at 303-305.
n307 OBERTHUR & OTT, id. at 305-308; and GUPTA & GRUBB, id. Oberthur
and Ott suggest that in the process of building a coalition for entry into
force with like-minded countries, the EU should also coordinate a "limited
set of [policies and] measures," such as in the fields of fiscal policy;
research and development on renewables and energy efficiency; dismantling of
perverse subsidies; energy efficiency standards; and public procurement. Id.
n308 GUPTA & GRUBB, id. at 310; and OBERTHUR & OTT, id., at 309-31. See
also the discussion in section V supra on developing countries.
n309 GUPTA & GRUBB, id.
n310 Id. at 310.
n311 "EU Tells Bush Climate Is Key to Europe/U.S. Ties," Reuters
(Mar. 23, 2001).
n312 "Bush Urges U.S. Partnership with EU in Fighting Problem of Global
Warming," BNA-Intl. Env. Reporter, vol. 24, No.13, at 500 (June 20, 2001).
n313 "Kyoto accord may be ratified without U.S. - Germany," Reuters
News Service (Mar. 15, 2001). "'Maybe it will be necessary to ratify the
Protocol without the U.S. and to instead pave the way for them to join later,'
Rainer Hinrichs-Rahlwes, director general at the environment ministry told
Reuters at a conference in Leipzig."
n314 See Grubb & Yamin, supra note 81; and Ott, supra note 54, at 283-84.
n315 "EU ready to renegotiate Kyoto," BBC News (Apr. 7, 2001).
n316 "EU to send Delegations to Pacific, Canada on Climate Change; Japan
Plans similar Trip," BNA-Intl. Env. Reporter, supra note 313, at 499.
n317 See Decision 5/CP.6, in U.N. Doc. FCCC/CP/2001/L.7.
n318 Concluding in a similar vein, Ott, supra note 54.
n319 T. Legge and C. Egenhofer, After Marrakech: the regionalisation of the
Kyoto Protocol. CEPS Commentary (2001). Available at: http://www.ceps.be (visited
Dec.12, 2001).
n320 See March 2002 Environment Council, supra note 72. See also "EU
Ministers Agree to Kyoto Ratification: Some Nations Differ over Emissions
Targets," BNA-Intl.
Env. Reporter, vol. 25, No.6, at 257 (Mar. 13, 2002). See also on the EU having
ratified the Kyoto Protocol, EU ratification, supra note 9.
n321 A good example came from John Prescott, who urged the world's biggest per
capita emitter, Australia, not to hide behind the U.S. and use this as an
excuse not to do anything. "Australia warned on Kyoto" AAP (Dec.
2001).
n322 M.S. Soroos, Global climate change and the futility of the Kyoto process,
1(2) Global Environmental Politics, 1-9.
n323 On Mar. 4 2002, the Environment Council ". . .confirmed its
willingness to pursue a dialogue with the United States in the framework of the
EU/United States High Level Group . . ." See March 2002 Council (Authors'
translation from the original French version), supra note 72.
n324 See e.g. "Blowing smoke", The Economist (Feb. 16, 2001), at 27-28;
and Special Report: Climate Change," BNA-Intl. Env. Reporter, vol. 25,
No.5, at 244-250 (Feb. 27, 2002).
n325 Jaume MATAS, Minister for Environment, Spanish Presidency of the EU and
Margot WALLSTROM, Commissioner for Environment, European Commission, Reaction
by the European Union to the Speech by President Bush on Climate Change of Feb.
14, 2002, available at
<http://www.europa.eu.int/rapid/start/cgi/guesten.ksh?p
action.gettxt=gt&doc=MEMO/02/330RAPID&lg=EN&display=.> (visited
Feb. 22, 2001).
It is clear that the proposals for U.S. action on climate change are purely
domestic. But the EU is concerned that they will not even be sufficient to
reduce U.S. emissions. The "intensity target" proposed allows for
further increases in absolute emissions and is not sufficient to fight climate
change effectively. In contrast, the Kyoto Protocol requires most
industrialised countries to achieve absolute emission reductions, while they
still expect economic growth.
The March 2002 Council, supra note 72, after approving the ratification of the
Kyoto Protocol by the EC, commented on President Bush's plan as follows
(Authors' translation from the original French version)
... The Council...
-is concerned that the [U.S. President's] proposed measures, which allow for an
increase in greenhouse gases at a rate close to the present rate, are
insufficient to effectively combat climate change;
-expects all parties to the UNFCCC, including the USA, the leading emitter of
greenhouse gases, to assume their responsibilities under the convention, which
demands industrialised countries to reduce their greenhouse gas emissions to
1990 levels...
n326 GUPTA & GRUBB, supra note 4, at 305.