Time for a holistic approach to climate change and air pollution in international law

Dr Yulia Yamineva

Yamineva works as a senior researcher at CCEEL.

The urgent challenges of climate change and air pollution could benefit from more integrated consideration under international law. As this blog post explains, climate change and air pollution are currently mostly addressed through separate international legal instruments and regimes. The blog post therefore identifies ways to build stronger links and synergies between policy measures to address these issues through international law.[1]

 

A view from the venue of the Biennial Conference of the Asian Society of International Law in Seoul, August 2017

A view from the venue of the Biennial Conference of the Asian Society of International Law in Seoul, August 2017

 

WHY INTEGRATE CLIMATE AND AIR QUALITY GOALS?

Policies to address climate change and air pollution include potential for win-win solutions. Some pollutants, especially black carbon, have both a detrimental effect on air quality and a warming impact on the climate. However, other air pollutants have a cooling effect and reducing their emissions could lead to an overall warming result. Furthermore, policy choices in one domain can have harmful effects on the other: for instance, the EU policies, aimed at developing diesel technology in the car industry in order to meet carbon dioxide reduction targets led to an increase in nitrogen oxides and particulate matter pollution in urban areas.[2]

There are clear benefits from a harmonised approach to tackling air pollution and climate change where mitigation measures are assessed for their potential impact on climate, air quality, human health and ecosystems. The key example relates to reducing emissions of short-lived climate pollutants (SLCPs).  Due to their short lifetime in the atmosphere, SLCP emission reductions, especially those of methane and black carbon, could slow the rate of global warming by 0.5°C by 2040. In addition to their warming effect, black carbon and methane have a negative effect on air quality and the environment: reducing these emissions could avoid 2.4 million premature deaths globally by 2030 and have positive impacts on agriculture and ecosystems. Focusing on mitigating SLCP emissions is therefore an attractive option to slow down global and regional warming in the short term, while at the same time improving local air quality.

 

TWO DIFFERENT WORLDS OF INTERNATIONAL LAW

International law largely treats the two policy goals – slowing down climate change and improving air quality – through separate instruments. This is unsurprising as climate change has traditionally been framed as a global problem, while air pollution has been understood by policy makers as a local or at best a transboundary issue. These different framings have implied that climate change should be addressed through legal instruments of global coverage, whereas air pollution can be effectively mitigated through regional and national/local measures. More recently, however, it has become apparent that the impact of air pollution goes beyond local or regional areas: this includes not only the impact on the climate referred to above but also worsening air quality due to atmospheric transport of air pollution from distant sources. Therefore, the problem of air pollution also requires global approaches.

Looking at international climate law, the 2015 Paris Agreement does not define what specific greenhouse gases or other warming substances it covers and in this sense does not address specifically methane or black carbon. One caveat to this is that the rulebook for the implementation of the Agreement is still under negotiation. The Agreement also contains no references to air pollution, although the connection may be implied from multiple mentions of sustainable development.

At the same time, methane has traditionally been within the scope of the UN Framework Convention on Climate Change (UNFCCC) regime: it is part of national reporting and covered by the Kyoto Protocol’s emissions reduction targets. It has received somewhat less attention though as the main discussion thus far has been on a long-term response to climate change and therefore on reducing carbon dioxide emissions. Black carbon, which is an aerosol and not a greenhouse gas, has not been covered by the UNFCCC regime.

Unlike international climate law, which centres on the UNFCCC regime, international law on air pollution is heavily fragmented. This issue is regulated in an ad hoc fashion through a patchwork of legal instruments covering specific regions, activities and substances. There is no single legal framework with a global reach and prospects for developing one are at present low. Lack of comprehensive and holistic treatment of air pollution in international law results in gaps in geographic, pollutant and pollution source coverage.

Looking across international air pollution frameworks, it can be concluded that these are rarely sensitised against climate impacts of air pollution measures. Air pollution treaties typically refer to transboundary effects of pollution but not to global effects, including climate change. There is for example no comprehensive global coverage of black carbon emissions. A regional exception is the Gothenburg Protocol to the Convention on Long-range Transboundary Air Pollution which was amended in 2012 to include emissions reduction targets for fine particulate matter. Although the black carbon component of these targets is not specified, the parties are encouraged to focus their mitigation action on black carbon rich sectors. The Gothenburg Protocol is thus the only multilateral environmental agreement to include black carbon in its scope. However, the amendment has not entered into force pending ratification by two-thirds of its parties and the geographic scope of the Protocol is in any case limited to Europe and North America.

 

OPPORTUNITIES TO BRIDGE THE GAP

There are multiple synergies between these two domains of international law which can be advanced for a more coherent approach to climate change and air pollution.

Scientific cooperation and collaboration in inventory development and reporting is one of the key areas. Data and scientific analyses are a fundamental step in developing sound environmental policies, and emission inventories are particularly important for developing national mitigation measures. For instance, scientists say that the best way to maximise climate and air quality benefits is to focus on sources with a high black carbon component rather than on those with a high component of cooling substances.

There are clear synergies between international climate change law and air pollution instruments in terms of inventories. The UNFCCC already has in place a well-developed global reporting framework for methane which air pollution frameworks could capitalise on. For black carbon, current reporting frameworks are fragmented, incomplete and mostly confined to the Northern hemisphere. More generally, global data on air quality as well as particulate matter and black carbon emissions are scarce or unavailable. The problem is especially acute in many developing countries which have poor capacity and systems to monitor air quality. This makes capacity-building activities at the global level crucial.

Another important direction is raising awareness about linkages, co-benefits and trade-offs between climate change and air pollution policies, including with respect to black carbon and methane. In this context, the Climate and Clean Air Coalition (CCAC), which is a public-private partnership led by governments, has already played an important role through scientific assessments and communication of SLCP impacts and potential mitigation actions. 

Although the Paris Agreement does not per se integrate air quality concerns, the country-driven approach to mitigation action implies that diverse mitigation efforts can be accommodated under its framework. Potentially any substances, including methane and black carbon, can be incorporated into nationally determined contributions. In fact, many countries have already included methane, several have mentioned SLCPs, and some, such as Mexico and Chile, have specifically mentioned black carbon in their intended nationally determined contributions.

The situation is more complex regarding integrating climate change concerns into air pollution frameworks due to the number of related instruments and their incomprehensive coverage. This for instance means that there is no one single interface on air pollution at the global level which makes institutional cooperation between the policy worlds on climate change and air pollution more difficult. However, several fora have the potential to advance such cooperation, including the abovementioned CCAC as well as international organisations such as the UN Environment, the World Health Organisation and the World Meteorological Organisation.  

In conclusion, there are many interlinkages between international law on climate change and on air pollution which should be explored.  Greater coherence between climate change and air pollution policies provides an attractive opportunity to link global, regional and local environmental agendas in a mutually beneficial way.

 

[1] The blog post is based on the author’s conference paper ‘Climate Change and Air Pollution in International Law: Apart or Together? Short-lived Climate Pollutants in Asia’, which was presented at the Biennial Conference of the Asian Society of International Law in Seoul, August 2017, as well as: Yulia Yamineva and Seita Romppanen, ‘Is Law Failing to Address Air Pollution? Reflections on International and EU Developments’ [Forthcoming in 2017] Review of European, Comparative & International Environmental Law, 26 (3); Yulia Yamineva and Kati Kulovesi, ‘Keeping the Arctic White: The Legal and Governance Landscape for Reducing Short-lived Climate Pollutants in the Arctic Region and Opportunities for Its Future Development’, in review.
[2] See Aleksandra Cavoski, ‘The Unintended Consequences of EU Law and Policy on Air Pollution’, [Forthcoming in 2017] Review of European, Comparative & International Environmental Law, 26 (3).

CONTROVERSY OVER EU’s LULUCF ACCOUNTING RULES

Seita Romppanen

Romppanen works at the UEF Law School as a Senior Lecturer in international environmental law.

In July 2016, the European Commission issued a legislative proposal on how to include the land use, land-use change and forestry (LULUCF) sector in the EU’s climate and energy framework for the 2021-2030 period. The EU’s overall goal for the period is to reduce greenhouse gas emissions by 40% from 1990 levels. The proposal is based on a ‘no debit’ approach, meaning that land-use emissions must be entirely compensated by removals, with some flexibilities between the LULUCF sector and the effort-sharing and EU emissions trading sectors.

Notably, the Commission’s proposal would introduce binding mitigation targets in the LULUCF sector for all EU Member States. Moreover, emissions from bioenergy are also to be included in the new framework. However, regulating LULUCF sector’s climate impacts is tricky as forests call for different perspectives in different contexts in the global environmental agenda. Issues such as the forest carbon cycle, biodiversity, conservation and the increasing need for forest biomass for energy call into play strong yet conflicting perspectives on how forests should best be exploited and regulated.

 

 

THE DEBATED FINNISH FORESTS

Especially in Finland, the Commission’s LULUCF proposal has been highly contentious. One of the key controversies relates to the proposed forest management reference levels and associated accounting rules for LULUCF. The reference level essentially compares the change in the carbon sink to an earlier point in time. The projected harvest intensity (e.g. forest biomass use) is compared with the past forest harvest intensity. Depending on the reference level, increasing the use of the forest will decrease the sink (i.e. cause emissions) and the debit needs to be compensated for by emissions reductions in other sectors.

If a Member State exceeds the reference level (i.e. removal of emissions), it can take advantage of the excess for flexibilities in other sectors. In Finland, bioenergy plays a strong role in the current government’s programme. The government is committed to increasing the use of renewables by up to 50% in the 2020s. This increase will be, in principal, achieved through ‘growth in the supply of bioenergy’ and in especially, ‘the greatest opportunities’ will be achieved through increasing the production of liquid biofuels. In concrete terms, Finland plans to increase wood harvesting from the current 66 million cubic meters annually to 80 million by 2030. Through these extensive targets, Finland aspires to become the world’s pioneer in bioeconomy.

As the Commission’s LULUCF proposal links the use of forest biomass for bioenergy to the LULUCF sector’s emissions, it has lead to a heated debate in Finland on GHG emission savings that could be achieved through the use of bioenergy. The Commission has proposed to set the years 1990–2009 as the baseline against which the reference level should be calculated. Last July, the European Parliament voted in favor of stronger LULUCF accounting rules and proposed a new baseline of 2000–2012. The Finnish government  considered these proposals as unfair for Finland as the proposed reference level would cover years that were particularly difficult in the forestry sector and thus, create a negative gap between historical and projected forest harvest intensity. Put bluntly, the reference level proposed by the Parliament would not allow for the planned increase of forest biomass use without compensatory (and costly) action elsewhere.

 

 

LULUCF IS A PERFECT ILLUSTRATION OF A COMPLEX AND SYSTEMIC ENVIRONMENTAL PROBLEM THAT CHALLENGES POLICYMAKERS AND REGULATORS

The Finnish government argues that through sustainable forest management it is possible to increase forest harvest intensity while also increasing Finland’s carbon sink. Yesterday, the Parliament’s plenary voted to support this view, and the previously ambitious approach was weakened. Among other amendments, an amendment that would give the Commission the possibility to ‘grant a derogation’ from the baseline upon ‘reasoned request by a Member State’ was accepted by the Parliament.

However, the Finland’s official views have been challenged both internationally and domestically by a large group of researchers from leading research institutes, including the Finnish Climate Change Panel. Indeed, strict reference levels are backed up by science: from a climate perspective, a reduction in the forest sink leads to more CO₂ emissions – even if forests are managed sustainably. In addition, increased harvesting is also detrimental to forest biodiversity and ecosystems. However, there is a clear conflict between the EU’s LULUCF proposal and Finland’s plans for bioeconomy – plans that were partly built to respond to EU’s targets pushing for increased use of bioenergy and biofuels. Now, we are already turning back from the biofuels path, and sustainable use of forest biomass does not encourage using wood for energy. Regulating the delicate interface between science and policy is difficult, and the polarised and inflammatory debate between the two camps does not facilitate the regulators’ task in finding a climate-positive and both economically and environmentally sustainable compromise. In EU, the legislative procedure is still open and thus comprehensive conclusions of the new regulatory architecture on LULUCF are yet not possible.

If we wish to ensure that our climate action keeps to a fair and sustainable path, and that it complies with the legal requirements to which we are subject, Finnish bioeconomy plans must be based on, and amended by reference to, the best available science. This includes the fact that our government accepts the fact that the policy has changed, and that the change is justified by science. If we as one of the wealthiest and most educated countries in world cannot cut our emissions, who can? However, and very centrally, this does not mean that we will not be able to exploit our forest resources in the future – this is not what the EU is saying – but it does mean that we should reorient, diversify and adapt our public policy in relation to forests to respond to today’s climate reality. Thus, the need to revise our strategies could be treated as an apt opportunity to innovate alternative and new uses of forest biomass. Finland is already known for its sustainable wood products as well as novel wood construction solutions – should we not build on these innovations instead of emitting them as CO₂ up in the atmosphere?

Ecological Futurists at Work: Moving Forward on Global Ocean Governance

Dr. Sabaa A. Khan, Postdoctoral Researcher

The UN Ocean Conference took place from 5 to 9 June 2017 at the UN Headquaters in New York. The historic Conference closed just a few weeks prior to the fourth session of the Preparatory Committee established by UN General Assembly Resolution 69/292 on development of a new legally-binding instrument under the UN Law of the Sea Convention (UNCLOS) to address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (ABN).

Taken together, these developments point towards an emerging extension of international law into the high seas, conceptualised as a common resource that belongs to all of humanity. As the oceanic sights of international law have risen, so has the hope for the potential geographical influence of legal rules on the horizon to regulate activities on the high seas.
 


The main outcome of the UN Ocean Conference was a Call for Action. While this outcome is by no means a binding instrument, its contents echo the ambitions of international environmental law in regards climate change, human health and environmental protection. The Call for Action also looks to future law, reaffirming the ambitions of ongoing legal negotiations under the auspices of UNCLOS (mentioned above), as well as multilateral negotiations under the WTO on disciplining harmful fisheries subsidies.

Moreover, the Call for Action brings to the forefront an area of international environmental law that often receives minimal political attention at all levels of governance – the regulation of chemicals and waste. In this respect, the outcome text of the UN Ocean Conference obliges the global community to not only look forward to the creation of new legal agreements targeting our common marine spaces and resources, but to reflect upon the shortcomings of the existing international legal landscape in regards abating the immense global marine pollution that is linked to the production, use and disposal of toxic chemicals and waste.

The Call for Action could not be clearer in that the sound management of chemicals and waste lies at the centre of global ocean health. At the global level, a number of international chemicals and waste regimes exist to protect our marine ecosystems from the global circulation and disposal of toxics. However, their coverage is extremely narrow in scope and their controls are sporadic, limited to specific points of the chemical lifecycle. We have yet to arrive at regulatory frameworks that encapsulate the entire lifecycle of hazardous substances in global use and define, clearly, stakeholder responsibilities at each and every lifecycle phase.

Evidently, our inability to see transparently through our globalized commodity chains gravely limits our capacity to ensure the protection of human and ecosystem health, including the oceans, from toxic commercial substances and waste. The visibility that is required to effectively protect our global communities and common resources from the toxic hazards of chemicals and waste must cut across entire global chains of production and consumption. In this respect, the launch of the Tuna 2020 Traceability Declaration at the UN Ocean Conference should serve inspiration to stakeholders in the broader global commodities and chemicals market, as an example of the product lifecycle and supply chain commitments necessary to follow through on bold environmental, oceanic and human health objectives embodied in our international environmental laws.
 


It is certain that the health and resilience of our oceans will depend critically on the further development of international law, notably on fisheries subsidies, on chemicals and waste trading and evidently, on the protection of marine biodiversity in ABNJ. However, also noteworthy is that the UN Ocean Conference Registry of voluntary commitments received 1328 submissions upon the Conference’s closure. This demonstrates that where intergovernmental legal texts fall short in their capacity to “save our ocean”, transnational stakeholders rise to challenge. The Registry itself creates a self-imposed and public standard for all those who have contributed to it, and should be used as such, to incite a global culture of transparency, governmental and corporate accountability and civil society mobilization. The Registry exemplifies an inclusive ecological futurism at work, a seedling for strengthened global ocean governance, from the bottom up.

More Time for an Energy Revolution? Seizing the Opportunity to Slow Down Climate Change by Cutting Emissions of Short-lived Climate Pollutants

      

Kati Kulovesi, Yulia Yamineva and Veera Jerkku

View of the South of Delhi by Jean-Etienne Minh-Duy Poirrier (Under Creative Commons License)

There is an important ‘ambition gap’ between the climate change mitigation policies pledged by countries in context of the Paris Agreement and those needed to avoid dangerous climate change. Discussions on ways to step up climate change mitigation efforts commonly focus on ways to reduce carbon dioxide (CO2) emissions. These indeed play a crucial role in long-term climate change mitigation. However, achieving radical cuts in CO2 emissions also requires a fundamental economic and energy transformation that is proving time-consuming to achieve.

Our argument is that short-lived climate pollutants (SLCPs) provide an attractive option that could ‘buy’ more time to cut CO2 emissions. The United Nations Environment Programme has estimated that reducing SLCP emissions, especially methane and black carbon, could slow the rate of global warming by 0.4-0.5°C by 2040 (UNEP, 2011). This is an important contribution given that the existing climate policies have been estimated to limit the global average temperature increase only between 2.9°C and 3.4°C by the end of the century (UNEP, 2016)., thus falling short of the 2°C target in the Paris Agreement.

SLCPs include methane, some hydrofluorocarbons (HFCs), tropospheric ozone and black carbon. What unites them is a significant short-term warming effect on the climate. Methane, tropospheric ozone and black carbon cause local air pollution, thereby adversely affecting human health and ecosystems, including by reducing crop yields.

At the CCEEL, we have recently launched a new five-year research project known as ClimaSlow (Slowing Down Climate Change: Combining Climate Law and Climate Science to Identify the Best Options to Reduce Emissions of Short-Lived Climate Forcers in Developing Countries). The project is led by Professor Kati Kulovesi and funded through an European Research Council (ERC) Starting Grant for 2017-2021. Other CCEEL members involved in the project are Dr Yulia Yamineva  (Senior Researcher) and Veera Jerkku (PhD candidate).  The project also involves participation by the UEF Aerosol Physics group.

One of the factors driving our interest in SLCPs is that we see them as an interesting opportunity to merge the global climate change agenda with the local health and environmental agendas. Air pollution poses a considerable risk to human health worldwide. It leads to heart and lung failures and cancer, causing approximately 6.5 million deaths each year (WHO, 2016). Through aggressive reductions in black carbon emissions, it would be possible to avoid 2.4 million premature deaths annually by 2030 as a result of reduced exposure to fine particulate matter (UNEP, 2011).

The growth in SLCP emissions over the next decades is expected to be driven by developing countries. Therefore, in addition to the focus on international and transnational cooperation, the ClimaSlow project looks at three national case studies: China, India and Nepal.

China and India are among the world’s key sources of black carbon and methane emissions and their emissions of HFCs are also set to rise. Air pollution is also an acute problem in all three countries damaging both public health and the economy. In China, for instance, air pollution is implicated as a leading cause of mortality (UNEP, 2015).  The project will look at the policies and regulations in place in the case study countries, and seek to identify ways to strengthen them through both national and global action. It will also try to identify opportunities for others to learn from the experiences of the three case study countries.

One of the project’s motivations is that the legal and regulatory options to strengthen global action on SLCPs have not been studied comprehensively, and the climate impacts of such options are not yet adequately understood. The ClimaSlow project seeks to fill the vacuum by undertaking an analysis of the fragmented and multi-layered global legal and regulatory framework for SLCPs.

Furthermore, the ClimaSlow project breaks disciplinary boundaries through combining climate law and climate science. An analysis of legal and regulatory options is complemented by climate modelling work to determine their climate impacts and hence identify the most effective ways to achieve deep reductions in the emissions of SLCPs.

The project will seek to maintain an iterative dialogue and share its interim and final findings with a variety of stakeholders including scientists, NGOs and policy-makers both internationally and in the case study countries. This will for instance be done through organising workshops, developing policy briefs and participating in relevant events. The project will also culminate in an interdisciplinary scientific conference in 2022.

You can stay up to date with project developments through the CCEEL website and Twitter account (@uefcceel), as well as the project’s own Twitter account @ClimaSlowERC.

The Evolving International Gas Industry: A Brief Comment on Decarbonisation and Matters Arising

Tade Oyewunmi, Doctoral Researcher, oyetade.oyewunmi@uef.fi

In a forthcoming paper on the topic- ‘Examining the Instrumental Role of Regulation in the Development of Gas Supply Markets: Highlights from the US and EU’ (2017)[1] I considered the effectiveness of regulation in the path towards restructuring and the development of competitive gas markets in which parallel policy objectives such as security of supply and sustainability are being pursued.

In a climate change and decarbonisation context, debates relating to the effectiveness and implications of market-based mechanisms like carbon tax and emissions trading scheme (ETS) as opposed to standard-setting or rule-making conventional approaches to regulation have gained significant attention recently.[2] Pollution resulting from operations in the energy and petroleum industry are often considered as a major cause of greenhouse gas (GHG) emissions and climate change.[3] In an increasingly international gas industry which is now ever more interconnected with electricity markets in major industrialized economies, the disposition of the major energy-related GHG emitting countries such as the US, Russia, and China becomes highly relevant.

The North American shale gas revolution over the past eight years undeniably positions the US as the leading oil and gas producing country globally.[4] It is therefore not surprising to see several legal disputes between environmental protection groups against energy firms who are seeking to take advantage of the boom in unconventional hydrocarbon production to obtain approvals for gas commercialisation and LNG projects. Recently, in Earthreports, Inc., et al. vs. Federal Energy Regulatory Commission, Dominion Cove Point LNG, et al. (2016).[5] a US Court of Appeal for the DC Circuit rejected the claims of such environmental groups who contested the Federal Energy Regulatory Commission (FERC)’s conditional authorization of the conversion of the Cove Point LNG facility from an import maritime terminal to a mixed-use, import-and-export terminal. The environmentalists had argued that the FERC failed to consider the indirect environmental impacts that the Cove Point LNG conversion into a gas export facility might have, and therefore failed to satisfy its obligations under the National Environmental Policy Act (NEPA) of 1969. The Court held that under NEPA, the FERC is not required to consider indirect effects of increased natural gas exports through the Cove Point facility, including potential climate impacts.[6] Assuming this decision indicates the current disposition in the US to gas utilisation and commercialisation, it may be argued that conventional and prescriptive standard-setting or rule-making regulatory approaches may not necessarily hinder the shale gas production and commercialisation boom. However, as with any conventional regulation approach, it does create additional compliance and monitoring costs. Another important issue in the scheme of things is the possibility of the US pulling out of the 2016 Paris Agreement following the recent elections and subsequent change in government.[7]   

Conventional Regulation vs. Market-based Pricing of Carbon Emissions

Advocates of market-based mechanisms like the ETS and carbon tax contend that placing a strong and predictable price or charge on carbon emissions is the most cost-effective and efficient path to GHG emissions reductions.[8] It is noted that the ETS framework seem to have come under stronger criticisms, while carbon tax proponents seem to be gathering more support.[9] Arguably, there are justifiable concerns about the de facto effectiveness of the ETS and its ‘cap and trade’ mechanism.[10] Such concerns relate to whether it actually limits GHG emissions or it is just another theoretical economic construct which in reality depends on perfect markets and effective balancing of demand and supply of trading allowances and permits. Another problem with carbon pricing, especially carbon tax is the socio-political challenge of curtailing pass-through costs on final energy (gas and electricity) consumers. Hence the question- who eventually pays for the ‘charge’ on carbon? According to the International Energy Agency (IEA), the main reasons for low carbon prices generally includes: (i) economic downturn which led to lower-than-anticipated emissions, resulting in a surplus of emissions allowances; (ii) the socio-political challenge of setting tight emissions cap or high carbon prices vis-à-vis industrial competitiveness and rising consumer electricity prices; (iii) flattening or falling electricity demand (resulting in reduced demand for ETS allowances) due to the positive effects of energy efficiency policies in many jurisdictions.[11]

In comparing carbon tax with subsidies as plausible market-based mechanisms for the US, it has been posited that: “A carbon tax is superior to subsidies for carbon-free energy sources [e.g. renewables] in two important respects. First, it has the opposite effect on the budget deficit. While subsidies increase the deficit, a carbon tax would decrease the deficit. Second, it is much easier to design and to implement. To be effective, a carbon tax need only deter consumption of hydrocarbons. Consumers are left with complete discretion with respect to the ways in which they reduce their consumption of hydrocarbons. For example, by increasing the efficiency of their use of energy or by substituting for hydrocarbons some mix of carbon-free fuels like wind power, solar power, or nuclear power.”.[12]

Notably, in most market and developed economies, who also happen to be the leading GHG emitting countries seemingly due to high energy utilisation and industrialisation, there has been a general disenchantment with the interventionist and seeming highhandedness of traditional regulatory forms. Consequently, there has been a preference for more deregulation and to adopt alternative regulatory approaches which encourages the desired behaviour by economic and financial incentives rather than by legal compulsion or sanctions. In this regard, such incentives can be: (i) negative i.e. the conduct is legally unconstrained unless the a firm chooses to act in an undesired way, then it must pay a charge e.g. carbon price; or (ii) positive i.e. if a firm chooses to act in a desired way it is awarded a subsidy or allowed a more cost-efficient tariff such as feed-in tariffs for renewables or energy conservation.

The apparent flexibility of market-based instruments should incentivize innovation and technological development. What it, however, does not guarantee ipso facto is accountability and trust unless such factors are built into the market structure and framework. It has also been argued that while the conventional command-based regulatory approaches may lead to more uncertainties about the apprehension, prosecution, and level of sanctions; market and economic instruments, on the other hand, could provide more a definite and predictable level of compliance motivating charges and payments. As far as developed market economies are concerned, it appears there is strong argument in favour of placing a price or a charge on energy-related GHG emissions. Although the main caveat or pragmatic concern is the credibility of the carbon emissions market, and whether such approaches will effectively curtail negative environmental and climatic impacts without imposing avoidable costs on operators and energy consumers. Also, as inquired earlier, who pays for the price of carbon emissions in an increasingly international gas supply and energy context?   


[1] This paper will be published in a forthcoming 2017 issue of the Houston Journal of International Law.
[2] Brittany A Harris, 'Repeating the Failures of Carbon Trading' (2014) 23(3) Pac Rim L & Pol'y J 755 – 793; the International Energy Agency (IEA), ‘Energy, Climate Change and Environment 2016 Insights’ (IEA Publications, 2016) 1 – 133; Adam Whitmore, Can Emissions Trading Produce Adequate Carbon Prices? Energycollective, January 23, 2017.
[3] Energy industry related GHG emissions include CO2, methane (CH4) from natural gas production and nitrous oxide (N2O). These gases are quantified in terms of their global warming potential relative to CO2. For instance, gas flaring and venting is one of the main hydrocarbon exploration and production processes with environmental implications to the extent that CH4 is one of the main components of natural gas. Flaring is the controlled burning of natural gas produced in association with oil in the course of routine oil and gas production operations. Venting is the controlled release of unburned gases directly into the atmosphere. In addition, water management, including water usage during drilling and hydraulic fracturing, and the protection of surface and ground water during drilling, fracturing, production and disposal activities, is a central environmental issue for unconventional gas production. See the International Energy Agency (IEA), ‘Energy Policies of IEA Countries: The United States 2014 Review’ (IEA Publications, 2014) at 209 – 211; IEA, ‘Energy, Climate Change and Environment 2016 Insights’ (IEA Publications, 2016) 1 – 133.
[4] Proven gas reserves in the US has increased by almost three-quarters since 2000, up to 9.1 trillion cubic metres (or 323 trillion cubic feet) by end 2012, or the equivalent of more than 100 years of production at 2012 consumption rates. Natural gas production is projected to continue to increase over the period to 2040. Improvements in advanced crude oil production technologies, such as hydraulic fracturing, are widely expected to continue to lift domestic supply into the medium term. The renaissance that the oil industry is undergoing is largely the result of growth in light tight oil (LTO) production, a boom that is expected to continue until 2020 at least. According to Forbes, ‘The 25 Biggest Oil and Gas Companies in The World’30 March, 2016: “The U.S. has seven companies in the top 25, more than any other country” Other countries/companies in the list includes Russia’s Gazprom and Rosneft as well as China’s Petro China.
[5] Earthreports, Inc., et al. vs. Federal Energy Regulatory Commission, Dominion Cove Point LNG, et al, No. 15-1127 (D.C.  Cir., 2016)
[6] Ibid.
[7] The previous US government administration, signed and ratified the Paris Agreement on climate change on 22 April 2016. According to Platts, Fact Box: Global energy implications of Tillerson as top US diplomat, 1 February 2017 at <www.platts.com/latest-news/oil/washington/fact-box-global-energy-implications-of-tillerson-21766883> accessed 09/02/2017, it seems the new administration may be more favourably disposed to Carbon Tax and intends “to keep a seat at the table of global climate talks to understand the impacts on Americans and US competitiveness”.
[8] See IEA, ‘Energy, Climate Change and Environment 2016 Insights’ ibid. In the power sector, carbon prices can influence the economic choices of investors, technology developers and consumers. They can moderate energy demand, deter new high-carbon investment and encourage low-carbon instead, and curtail the operation of existing high-emitting assets. Carbon pricing also plays a role in shifting corporate behaviour: by making climate change a financial rather than environmental reporting issue, it directly engages top management.
[9] Tade Oyewunmi, 'Emissions trading scheme and gas flaring in the United Kingdom Continental Shelf: a comment' (2011)(5) International Energy Law Review 193-199; Adam Whitmore, Can Emissions Trading Produce Adequate Carbon Prices? Energycollective, January 23, 2017. In Brittany Harris, Repeating the Failures of Carbon Trading, (2014) 23(3) Pacific Rim Law & Policy Journal pp. 755 - 793. the author also points to the de facto ineffectiveness of the carbon trading mechanisms as applied in the pacific rim countries. See also Richard J. Pierce Jr., ‘The Past, Present, and Future of Energy Regulation’ (2011) 31(2) Utah Environmental Law Review pp. 291-308.
[10] Ibid.
[11] IEA, ‘Energy, Climate Change and Environment 2016 Insights’ note 3 supra.
[12] Pierce Jr., note 9 supra.

A Nudge Towards Low-Emission Mobility - A Glance at the AFI Directive’s Approach to End Oil Dependence in the European Transport Sector

Sara Kymenvaara, Researcher, Climate Change Law, LL.M.

A famous metaphor on climate change politics refers to people’s unrelenting driving of SUVs, disconnected from the threat of climate change they are contributing to. Although a lot has changed on the political arena with the entry into force of the Paris Agreement on 4 November 2016, the transport sector’s current state of play, in certain aspects, still corresponds to the metaphor’s dystopian features. The sector plays, however, an important role in achieving the Paris Agreement’s climate change mitigation objectives.

In the EU, transport is set to contribute to the overall emission reduction target of 30% by 2030 from 2005-levels. The Commission has also set out a specific goal for the transport sector to reduce greenhouse gas emissions by 60% from 1990-levels by the year 2050.

How to achieve these ambitious objectives?  Transport remains the only sector in EU where GHG emissions have risen since 1990. Emission reductions achieved by new motor vehicles’ improved energy efficiency as a result of the EU Regulations on passenger cars and vans are forecast to be offset by increased mobility demand. In fact, it seems that the 60% emission reduction target for the transport sector will require a “systemic change” in the transport system and sector as a whole.

One of the key measures to achieve the necessary systemic change is to end the transport sector’s heavy reliance on fossil fuels and start using cleaner vehicles and fuels. To this end, a key EU-level policy instrument is Directive 2014/94/EU on the deployment of alternative fuels infrastructure (the “AFI Directive”), a main legislative measure to implement the Commission’s alternative fuels strategy.

Alternative fuels include, for example, electricity, hydrogen, natural gas and sustainable biofuels, and the AFI Directive’s main objective is to promote the construction of the infrastructure needed for the vehicles running on these fuels. However, installing infrastructure for vehicles using alternative fuels should correspond to the amount and types of vehicles in use. Such vehicles are not currently sold in amounts large enough to develop sufficiently competitive prices. Thus, the combination of high prices and lack of infrastructure discourages consumers from buying them.

The AFI Directive aims to end this vicious circle by obliging EU Member States to promote the development of their national markets for alternative fuels and set objectives and targets for the related infrastructure. The AFI Directive contains, however, no binding targets for infrastructure and the Member States’ objectives can be revised at a later stage. Thus, the AFI Directive ‘nudges’ rather than obliges Member States to develop markets and infrastructure for low-emission fuels and vehicles.

Concerning electric mobility, for example, the EU Member States must ensure that an “appropriate” number of public charging points are installed for electric vehicles in densely populated areas by 2020. The “appropriate number” is determined largely by the Member States themselves in relation to their national estimates of, and objectives for, the number of electric vehicles to be registered by 2020.

Achieving the ambitious emission reduction goals in the transport sector also requires that policy incentives that counteract these objectives are identified and abolished. For long, the tax benefit to diesel fuels in many EU Member States has created such an incentive, let alone the failure to consider diesel’s external costs of air pollution on human health. Over half of all newly registered passenger cars in the EU run on diesel while alternative fuel vehicles currently only account for 4.9% of all passenger cars in use.

The figures indicate that EU currently is far from achieving the objective of a Low-emission Mobility. Interestingly, however, certain estimates, mainly concerning Norway, predict that electric vehicles are set to conquer the markets extensively in the near future. However, Norway seems to be an exception to the otherwise increasing share of diesel vehicles in the rest of Europe; Norway’s share of electric vehicles in new car sales currently is currently almost 30%, while the same figure is 1.5% for Western Europe. In addition, hardly no other European country has a state budget robust enough to afford the fiscal incentives for electric vehicles that have stimulated their surge in Norway.

Against this backdrop, the national objectives and policy measures of the EU Member States to implement the AFI Directive will be essential for cutting oil dependence in the transport sector. If these national policy frameworks are sufficiently ambitious, the AFI Directive’s adaptive strategy may indeed solve the deadlock concerning lack of infrastructure and alternative fuel vehicles’ market penetration – and thus contribute to the decarbonisation of the transport sector within the timeframes set out by the EU’s climate policy objectives.

Volatile relations: EU-Russia energy regulation

Moritz Wüstenberg, Junior Researcher, European Law

The World Trade Organization (WTO) is often seen as a curiosity generally associated with globalization. The WTO as we know it today has developed in its 70 year’s history from a provisionally applied interim agreement (the General Agreement on Tariffs and Trade or “GATT”) to become an independent organization, with nearly universal participation.

Following accession to the WTO in 2012, Russia has been eager to take its energy related grievances with the EU to be adjudicated at the WTO. Whilst transit has become a lesser problem in recent years, partly due to the direct connection from Russia to Germany via the Nord Stream 1 pipeline (Nord Stream 2 is on its way, see previous blog by K. Talus), the internal market liberalization of the EU has had effects on the European investments of Russia´s export monopoly Gazprom.

The case directly related to energy regulation brought by Russia to the Dispute Settlement Body (case DS476, Certain Measures Relating to the Energy Sector) of the WTO alleges, inter alia, that Russian goods and services are treated less favourably than third countries and less favourably than other EU goods and services (in violation of the Most Favoured Nation obligation and National Treatment obligation of the EU, respectively). The alleged violations are mainly related to limitations in access to infrastructure, including pipelines that connect Nordstream 1 to the wider European gas network, owned by Gazprom.

Two other cases brought by Russia against the EU (cases DS474 and DS494) are also related to energy, albeit indirectly. In anti-dumping determinations against energy intensive goods (in this case, steel from Russia), EU rules make it possible to replace the actual energy costs producers pay in Russia by a cost that is adjusted to reflect “market” prices. In effect this means that the anti-dumping margin paid on steel imports to the EU become higher.

The regulation of energy trade between the EU and Russia is vital for the EU to secure its energy supply and at the same time crucial for Russia, as some 50% of the federal budget is raised from the extraction and sale of energy goods. The disputes brought by Russia touch upon matters of trade that are sensitive due to their strategic nature, but are not regulated effectively by the rules of the WTO which were negotiated for more traditional areas of trade.

The Energy Charter Treaty, which Russia abandoned in 2009, has detailed rules for energy trade and would be more effective in regulating this area of trade. Russia withdrew from provisional application of the Energy Charter Treaty following the gas crisis of 2006 and 2009. The gas crisis were caused by transit disputes and resulted in many eastern and central European countries being undersupplied during the winter. Central stated reasons for the final withdrawal from the ECT were related to failures in the regulation of transit. Whether Russia will join the ECT seems uncertain, even though efforts to develop the regulation of transit continue at the Energy Charter.

The shortcomings of the regulatory framework of the WTO for energy trade have been discussed at the WTO as well as in academia. It is generally understood that there are a number of areas, export prohibitions through cartels (e.g. OPEC) and transit rules being prominent examples, which the rules of the WTO do not address effectively. Numerous suggestions for amendment or addition of rules have been made, but the debate remains open.

A neighbourhood trading relationship, such as the one between the EU and Russia, can be regulated by a number of WTO rule compliant means. One option would be the conclusion of a Preferential Trade Agreement (PTA) to regulate energy trade between the EU and Russia. This would be a fairly straightforward option which, as long as it complied with WTO requirements (mainly the obligation not to raise tariffs or other barriers to trade in relation to other WTO members), could be negotiated bilaterally and would effectively remain outside the multilateral framework of the WTO.

Plurilateral Agreements (PA´s), binding to those members that accede to them, have previously been adopted within the framework of the WTO (Annex 4 agreements). The main difference in relation to PTA´s is that PA´s function within the framework of the WTO. There are a number of advantages to regulating through a PA as opposed to a PTA, one being direct access to the dispute settlement system of the WTO. The main difficulty in adopting a PA on energy would be the need to achieve consensus among the WTO membership to add such an agreement to Annex 4. In effect this means that consensus has to be obtained also from members who do not intend to join a PA and consequently do not have rights or obligations arising from it.

Re-regulating energy trade between the EU and Russia may become necessary rather sooner or later. Even if a transition to renewable energies is on its way, natural gas will remain an important transition fuel until 2040 and later, even under the most ambitious climate targets. Russia has the world´s largest natural gas reserves and is connected by pipeline to the EU. Maintaining a well-regulated commercial relationship would therefore not only ensure energy security, but would also be advantageous to achieve climate policy targets.

 

Full articles on the above issues have been published recently as:

Moritz Wüstenberg, ´An Overview of the Dichotomy between EU Energy Market Liberalisation and the Multilateral Trading System: Case Review of WTO Case DS476 – Certain Measures Relating to the Energy Sector, International Trade Law & Regulation 22 (1) 2016

Moritz Wüstenberg, ´Reformation or Standstill? Re-Regulating Energy Trade between the EU and Russia, International Energy Law Review 34 (7) 2016

Reflections on Rhetoric: Discussing 'Sustainable Development' in Northern Regions at Arctic Circle Forum 2016

Dr. Sabaa A. Khan, Postdoctoral Researcher

The fourth Arctic Circle Forum took place in Canada from 11 to 13 December 2016, hosted by the Government of Quebec. The Forum compliments the larger Arctic Circle Assembly held in Reykjavik, Iceland, each year. Its objective is to convene international stakeholders to consider specialized issues pertaining to Arctic cooperation. Earlier forums hosted in Alaska, Singapore and Greenland addressed shipping and ports, as well as economic development.

In 2016, the Forum focused on Sustainable Development in Northern Regions: An Integrated and Partnership-based Approach and provided an opportunity for Quebec to share the Plan Nord. This is an ambitious mining, energy, forestry, wildlife and tourism development plan covering all of Quebec territory that lies north of the 49th degree of latitude. The Forum also included a special plenary session on Climate Change in Arctic and Northern Regions.

 

David Miller, President and CEO of WWF Canada draws attention to caribou survival in decline across Canada, at the Special Plenary Session on Climate Change.

 

The Forum’s opening session focused on what sustainable development means for the fragile northern regions of the globe. Philippe Couillard, Premier of Quebec, emphasized the importance of harnessing developmental opportunities in Quebec's vast untapped forests and mineral reserves, while Ólafur Ragnar Grímsson, Arctic Circle Chairman and former President of Iceland, acknowledged a group of protesters outside the Forum and reminded that citizens had to be brought along in the process of sustainable development as central participants.

Vittus Qujaukitsoq, Minister of Commerce, Employment, Trade, Energy and Foreign Affairs, Greenland addressed what is arguably the most important Arctic climate change issue: oil and gas exploration. Casting aside the issues of conservation and climate change, he expressed optimism for the US President-elect Donald Trump’s economic development plans in the Arctic region and stated his hope for a US Secretary of State appointment "with a comprehensive experience from the private sector." In light of the subsequent nomination of Exxon Mobil's chief executive Rex Tillerson as the US Secretary of State, Greenland's desire for enhanced regional cooperation on Arctic oil and gas development may very well become a reality.

This stands in stark contrast to the Canadian and outgoing US Administration's approach to sustainable development in the Arctic.  In fact, a week following the Arctic Circle Forum in Quebec, the US and Canada released a joint statement banning offshore oil and gas development in their respective Arctic waters. The US has imposed an indefinite ban on oil and gas leasing on the majority of US waters in the Chukchi and Beaufort Seas, while Canada imposed an indefinite ban on offshore oil and gas licensing in all Arctic Canadian waters, to be reviewed every five years through a lifecycle assessment based on climate and marine-science.

The issue of oil and gas development also arose in the Forum’s special plenary session on climate change. David Heurtel, Minister of Sustainable Development, Environment and the fight against Climate Change, Quebec, expressed the province's desire to move away from drilling. David Miller, President and CEO, World Wildlife Fund, Canada, emphasized the clarity of climate change science on the importance of eliminating fossil fuel dependence and of embracing renewable energy industries that do not negatively impact conservation of flora and fauna, especially the protection of wildlife habitats. His Serene Highness Albert II, Prince of Monaco insisted upon the "irreplaceable" role of scientific knowledge as the only "solid and incontestable basis" for Arctic development. Addressing hydrocarbon exploration in particular, he noted that we could not hope but for a limitation of these activities.

While clearly demonstrating there is no consensus between Arctic nations on halting oil and gas exploration in the Arctic as a measure to respond to the urgency of climate change, the Forum made it clear that Arctic development will not be left to federal authorities and top-down processes. Overall, the salient and most widely embraced idea affirmed at the Arctic Circle Quebec Forum was that sustainable development of the Arctic region has to be a broadly inclusive and science-driven process duly integrating the knowledge and participation of local communities.

The ‘Clean Energy for All Europeans’ package – Analysing the Commission’s proposed approach to capacity mechanisms

Kaisa Huhta

Doctoral Researcher (kaisa.huhta@uef.fi)

In November 2016, the European Commission published an extensive legislative proposal on energy. Known as ‘Clean Energy for All Europeanspackage, the proposal aims to address many of the challenges relating to structural changes the European energy markets have been experiencing during the past decades. These structural changes refer to a transition in which the centralized, fossil fuel-based and state-run energy markets are gradually merging into a competitive, single market where consumers play leading roles and electricity is increasingly produced from renewable sources.

In the context of the ongoing energy transition, EU Member States have become concerned about the long-term ability of the electricity markets to supply electricity to consumers. To address these resource adequacy concerns, Member States have introduced capacity mechanisms, which guarantee producers compensation simply for providing generation capacity (kW).

However, it is well-established that the ongoing, uncoordinated introduction of such mechanisms has distortive effects on EU decarbonisation efforts, cross-border trade, competition and EU-wide investment signals.

Among other issues, the Commission’s recent proposal seeks to address the uncoordinated development of capacity mechanisms. The provisions concerning resource adequacy are mostly included in the proposal for a regulation on the internal market in electricity. The proposal would introduce three key changes in relation to capacity mechanisms:

First, the proposal seeks to strengthen the approach on which the EU internal market in electricity is founded: a free, competitive market, where prices are determined by demand and supply, will generate the appropriate investments in generation capacity and ensure security of supply. This market-based approach would be enforced through an obligation for Member States to eliminate any identified regulatory distortions that have caused or contributed to the resource adequacy concerns. In other words, the Commission’s proposal emphasizes that capacity mechanisms should be treated as an exception and never the rule.

Second, the proposed legislation would establish common design principles for capacity mechanisms. These could be used in the event that the Member State is able to demonstrate that the market-based approach will not be able to ensure resource adequacy. The proposed principles emphasize the importance of proportionality and cooperation with neighbouring Member States.  They also include a maximum emissions threshold for capacity committing to a capacity mechanism. This threshold would effectively prevent the participation of coal-based capacity in a capacity mechanism.

Third, the proposed legislation would establish an obligation for Member States to design capacity mechanisms in a way that allows the participation of foreign capacity providers. Further, Member States would not be allowed to restrict capacity located in their territory from participating in capacity mechanisms of other Member States. These requirements aim to ensure that the introduction of capacity mechanisms would not undermine the efficiencies achieved through the integration of electricity markets.

From the point of view of capacity mechanisms, the substance and scope of the Commission’s proposal is largely in line with expectations. The proposed rules on capacity mechanisms reflect the Commission’s cautiousness and even reluctance to deviate from the market-based approach and risk further regulatory distortions. It is clear that the proposed rules would narrow the scope of situations in which it is acceptable for Member States to adopt capacity mechanisms. However, the proposed rules would not fully harmonize the introduction and design of capacity mechanisms. The intention is rather to establish a common threshold for the introduction of capacity mechanisms and to ensure that, if such interventions are introduced, their adverse effects on the internal market in electricity remain minimal.

A coordinated, European approach to capacity mechanisms is sorely needed. However, the proposal should be treated as the starting point for negotiations only and not as a final outcome of future legislation. This is because of two issues. Firstly, the proposal will not necessarily gain the support of all Member States. The proposed provisions would apply to both new and existing capacity mechanisms and would, therefore, require the adaptation or even removal of some capacity mechanisms. Secondly, the proposal has clearly been published in a hurry and is still in need of a thorough final revision. Both of these issues are likely to change the content of the proposed provisions before they can enter into force.  

Nord Stream 2 and EU Energy Law

Kim Talus
Professor of European Economic and Energy Law

The Nord Stream 2 project and its predecessor Nord Stream 1 are well-known international pipeline projects. Nord Stream 2 will, when completed, bring gas from Russia to Germany and the offshore section of the pipeline will extend over around 1200 kilometers across the seabed of the Baltic Sea. The route will largely follow that of Nord Stream 1 that become operational in 2011 (first stream) and 2012 (second stream). The 8 billion euro’s pipeline is expected to be operational at 2020.

Within the EU, the pipeline will cross the exclusive economic zones (EEZ) of Finland and Sweden as well as the EEZ and territorial waters of Denmark and Germany. For Finland, this means that the project requires certain permits and consents from the Finnish authorities. These include the following: (1) a consent pursuant to the Act on the Exclusive Economic Zone of Finland (1058/2004), and (2) a water permit pursuant to the Water Act (578/2011). Furthermore, an environmental impact assessment pursuant to the Environmental Impact Assessment Act (468/1994) must also be carried out.

In 2015, the Finnish Ministry for Foreign Affaires made a note that Energy Union and Commission interpretation of energy security aspects of the pipeline would somehow be relevant for Finnish permitting process. This is an interesting but incorrect claim.

First, as a forthcoming study examining the applicability of the EU Third Energy Package, adopted in 2009, to Nord Stream 2 will conclude, the rules laid down in the Third Energy Package, cannot be applied to Nord Stream 2. There are a number of different arguments that support this finding. These include (1) the intent of the EU legislator, (2) the actual content and wording of the law, and (3) current Member State and EU level practice in relation to past and future pipelines.

Second, the jurisdiction of a coastal State is limited by UNCLOS (United Nations Convention on the Law of the Sea). The Finnish EEZ is governed domestically by the Act on the Exclusive Economic Zone of Finland (1058/2004) (hereinafter the ‘Finnish EEZ Act’). Chapter 2 of the Finnish EEZ Act contains a list of Finnish laws that apply to the EEZ. This list does not include the Finnish Natural Gas Market Act (508/2000), which is therefore not applicable in the Finnish EEZ. Since this Act transposes the Gas Market Directive into Finnish law, it follows that the Gas Market Directive does not apply to pipeline projects within the Finnish EEZ. The situation seems to be similar under the Swedish EEZ Act (Lag (1992:1140) om Sveriges ekonomiska zon): the Swedish Natural Gas Act (Naturgaslag (2005:403) is not applicable in the Swedish EEZ. For Denmark, due to the existence of an upstream natural gas sector, the situation is not identical. However, the Danish Natural Gas Supply Act (Lov om naturgasforsyning, which implements relevant parts of TEP into the Danish legal system) provides that transmission networks in the territorial sea or the EEZ that are not connected to the Danish natural gas system are explicitly excluded from the scope of the Act.

(The full article will be published as Kim Talus, ‘Application of EU energy and certain national laws of Baltic Sea countries to Nord Stream 2 pipeline project’, Journal of World Energy Law & Business 10 (2017) 1), in February 2017.)

This post has also been published at "Oikeutta kohtuudella", the official blog of UEF Law School.

 

E-waste Realities and Legal Utopias: Labourers Lost in Translation

Sabaa A. Khan

Postdoctoral researcher, International Environmental Law, PhD

“Does the law exist for the purpose of furthering the ambitions of those who have sworn to uphold the law, or is it seriously to be considered as a moral, unifying force, the health and strength of a nation?” James Baldwin. No Name in the Street. 1972.

The massive amount of electronic waste that is produced from the global use of digitized commodities is one of the most pressing social and environmental challenges of the 21st century. Global flows of e-waste are particularly problematic for the many developing countries where informal, dangerous e-waste recycling work has proliferated. While providing a poverty alleviation strategy for some of the most marginalized communities in countries such as Ghana and India, informal e-waste recycling work is dangerous, presenting substantial risks to human and environmental health.

 

Dismantling and smelting at Agbogbloshie. Photo: Sabaa A. Khan

 

Regulatory responses to curtail the pollution emanating from these informal 'urban mining' industries are on the rise but the economic and social prospects they carry for informal waste workers are uncertain.

Waste governance regimes can be entirely ineffective when designed without meaningful consideration of the socioeconomic realities of e-waste recycling. This is evidenced by India's e-waste law adopted in 2012, despite international human rights concerns linked to its negative impact on the 80,000 people working in India's informal e-waste recycling sector and their families.

Regrettably it seems Ghana is pursuing a similar, highly exclusionary legal path.  A look at Ghana's newly adopted Hazardous and Electronic Waste Control Management Bill (2016) reveals that this ‘sustainable’ e-waste regime lacks any coherent linkage to the existing waste management system, in which 95% of the e-waste generated is collected by the informal sector.

 

Agbogbloshie e-waste worksite. Photo: Sabaa A. Khan

 

In general, the legal framework maintains the informal e-waste sector in invisible and insecure arrangements along the e-waste value chain. It establishes a State-led e-waste collection and recycling system that is totally delinked from the current reality of the e-waste chain in which e-waste generating households and businesses sell e-waste to informal sector collectors.

Existing social arrangements surrounding e-waste that involve exchanges between formal and informal actors on local and transnational scales are buried underneath this new, top-down, state-centered legal vision for the social and economic ordering of e-waste management. Rather than incentivizing manufacturers and importers to develop efficient closed-loop systems and foster sustainable relationships with informal waste collectors, the legislation gives the government immense discretion and control over e-waste management. It advocates a state-managed chain from collection to processing, providing no clarity on potential opportunities for the legal recognition of small-scale informal collectors who currently dominate the system.

Ghana’s new e-waste law appears to create an imaginary space in which the informal sector simply does not exist. Moreover, it is a space under the strict command of governmental authorities who are empowered to order the “sealing up” of any “area, site or premises” suspected to be a place for hazardous waste disposal. Law enforcement officers are also granted a “power of search, seizure and arrest” over any person or place suspected of keeping or transporting hazardous wastes. Spaces that fall under the scope of these governmental powers include vehicles, lagoons, ponds, landfills, buildings, structures, storage containers and ditches. Evidently, this vaguely configured broad authority further legitimizes the persecution of informal waste collectors who are already subject to constant harassment, hostility and seizure by municipal authorities.

The newly adopted legislation reflects the State’s distorted vision of what constitutes the e-waste economy. It is entirely removed from the spatial reality of actual e-waste flows and is likely to further drive the informal sector into places of invisibility that are characterized by environmental and social risk. Hence, law as embodied within the new e-waste legislation presents new threats to the livelihood of informal workers, rather than clarifying their engagement as stakeholders in a sustainable e-waste economy.

 

95 percent of e-waste is collected by the informal sector. Photo: Sabaa A. Khan

 

In essence, the laws of e-waste, at all scales, have originated from an artificial perspective of what constitutes sustainable waste governance, and have thus fostered the invisibility and precarious growth of the informal workforce.

As to international environmental law, the evolving dynamics of the Basel Convention show that the Convention works together with the international trade regime to legitimize the e-waste trade.  It does so by retaining its primary focus on removing barriers on transnational movements of used e-products. Global objectives in relation to human health protection remain mostly symbolic and unactionable, trapping the social and labour hardships of the global waste economy within the realm of national sovereignty. The possibility for certain transnational actors to play a role in international waste trading without engaging any form of accountability, and sometimes even preserving their anonymity, inevitably expands opportunities for transnational environmental crime in the global e-waste value chain and facilitates the proliferation of exploitative working conditions within the informal economy.

Ghana has certainly taken a critical step forward in introducing national e-waste legislation. However, the social and environmental success of the new law is far from imminent and will entirely depend on how inclusively the new regime will be operationalized with respect to the most marginalized social groups whose livelihoods have come to depend on their participation in the urban waste economy.

 

This post has also been published at "Oikeutta kohtuudella", the official blog of UEF Law School.

Rainforests in the Paris Agreement: Old Wine, New Bottles?

Maria Eugenia Recio

Researcher, MPhil, Environmental and Climate Change Law

Merely a year after its adoption, the landmark Paris climate change treaty came into effect on 4 November 2016. Its Parties are currently convening for the first time in Marrakesh, Morocco. These are clearly important steps for the United Nations climate change regime. At the same time, in light of countries’ nationally-determined contributions (NDCs) under the Paris Agreement, it is clear that more ambitious mitigation efforts are needed to achieve the 1.5°C and 2°C temperature goals included in the Agreement.

Large forests located in developing countries can play an important role in global climate change mitigation efforts by taking up carbon from the atmosphere and storing it. The Paris Agreement taps into this potential by encouraging countries to implement measures to reduce deforestation and forest degradation, commonly known as “REDD+”. The basic idea behind REDD+ is that developing countries can apply for compensation for the greenhouse gas emissions avoided by protecting and not cutting their standing forests.

But does the inclusion of REDD+ in the Paris Agreement actually strengthen international efforts with respect to forests? The protection of natural forests through a multilateral, legally binding agreement has been on the international agenda for over two decades. Sovereignty concerns of developing countries were one of the main reasons why such agreement has not materialized. Nevertheless, during ten years of negotiations on REDD+ under the UN Framework Convention on Climate Change, countries have agreed on a variety of detailed rules in the form a dozen decisions by the Convention’s governing body known as the Conference of the Parties (COP).

Decicions by the UNFCCC COP have gradually helped to build trust, allowing developing countries to engage in negotiations that could be considered to be “safer” than negotiations on a legally binding agreement. Following the mention of REDD+ and the existing framework in the Paris Agreement, the collection of decisions taken to protect forests in developing countries is now for the first time anchored in a legally binding agreement.

A legally binding agreement implies a stronger commitment by countries to comply with its provisions, as it usually requires ratification by national parliaments. However, the legal force of each particular provision in the agreement depends on the language used. Thus, while the Paris Agreement is clearly a legally binding international agreement, it contains both mandatory and non-mandatory language. Notably for forests, countries are merely “encouraged” to take and support REDD+ action; this does not create a legal obligation to implement REDD+.

Also the existing rules for REDD+ adopted by the COP make its implementation completely voluntary. Furthermore, they favour results-based payments, meaning that countries first need to take action on REDD+ before being compensated based on emission reductions. Such an approach excludes the possibility that REDD+ countries take on obligations to reduce forest emissions beforehand.

Regardless of the largely voluntary nature of the legal framework for REDD+, Parties to the Paris Agreement have taken on a political commitment to support REDD+. This political recognition can arguably give REDD+ a higher profile and boost its implementation, which could result in more funding to address deforestation in developing countries and broader international support.

Another positive step is that REDD+ rules relating to transparency require countries to report on emission reductions and on the impacts that activities have on forest communities and the environment (e.g. biological diversity). However, international oversight over such reporting is limited, and the process remains largely in the hands of national governments.

It is useful to note here that while the Paris Agreement also establishes a broader framework for transparency and review, it does not change the transparency rules for REDD+ and recognizes that the REDD+ framework is “already developed”. This does not mean, however, that the existing REDD+ rules are cast in stone. On the contrary, the inclusion of REDD+ in the Paris Agreement creates, in my view, a stronger mandate for Parties to make changes to REDD+ rules in the future. This could mean, for example, aligning REDD+ rules with the new transparency framework applicable to the post-2020 climate regime.

Finally, the Paris Agreement also contains elements that can attract participation in REDD+. First, it effectively reassures that REDD+ will continue to be a part of the long-term international climate regime. This offers a positive assurance for those considering to invest in REDD+ in the medium- to long-term.

Second, while the relationship between countries’ nationally-determined contributions (NDCs) under the Paris Agreement and REDD+ remains subject to clarification, REDD+ could be part of the toolbox available for countries to achieve their NDCs.

Third, for countries willing to use markets to finance REDD+, the agreement creates the legal basis for a market mechanism for countries to ostensibly trade emission reductions, although whether and how it will be used for REDD+ implementation remains to be seen.

In short, the Paris Agreement does make a difference for REDD+ by enhancing political support for REDD+, strengthening the mandate to continue addressing REDD+ through the climate regime, and offering elements that can broaden country participation in the future.

 

This post has also been published at "Oikeutta kohtuudella", the official blog of UEF Law School.

Introducing the CCEEL Blog and CCEEL Activities on Climate Law

  

Kati Kulovesi, Co-Director of CCEEL and Professor of International Law

Harro van Asselt, Professor of Climate Law and Policy

 

The past few weeks have been remarkable for the evolution of international climate law. A month ago, the Paris Agreement obtained the required ratifications both in terms of the number of countries and their share of global greenhouse gas emissions. As a result, the Paris Agreement will come into effect on 4 November 2016. Its Parties will convene for the first time next week in Marrakesh, Morocco. The entry into force of the Paris Agreement and the first meeting of its Parties are major steps forward for international climate law and policy under the auspices of the United Nations Framework Convention on Climate Change.

But important developments have also taken place elsewhere. In early October, the International Civil Aviation Organisation (ICAO) reached agreement on a global mechanism to offset aviation emissions from 2020 onwards. This decision was taken against the backdrop of rapidly growing global aviation emissions. While not perfect, the new ICAO offsetting mechanism represents important progress after years of stalled negotiations.

Finally, on 15 October 2016 an important new amendment was adopted to the Montreal Protocol on Substances that Deplete the Ozone Layer to phase out hydrofluorocarbons (HFCs). These are highly potent greenhouse gases used mostly in air conditioning and refrigerators. Without new regulatory measures, it was feared their emissions would grow, posing a serious threat to climate change mitigation efforts. Indeed, it has been estimated that if implemented, the Montreal Protocol amendment will slow down global warming by up to 0.5 degrees Celsius in the next few decades.

These three developments are undoubtedly all significant milestones in the evolution of international law on climate change. Just a few years ago the prospects for all three agreements looked gloomy, and the recent developments thus show that countries are increasingly prepared to use international law as an instrument to tackle climate change.

However, looking more closely, they also demonstrate that international climate law inhabits an increasingly complex legal and regulatory space with several sites of governance. Moreover, there is a growing emphasis on both national discretion and procedural obligations. The effects these shifts will have in practice will greatly depend on the level of implementation. Critical analysis by the academic community will be needed to understand the relevance of these developments for climate law and governance, and for environmental law more broadly.

Against this backdrop, we are launching this CCEEL blog to create a new forum for a critical debate on current developments in climate, energy and environmental law. In this first blog post, we offer a snapshot of our activities in the field of climate law. Future posts will focus mainly on substantive issues and will be published approximately twice a month. In addition to the climate law activities introduced here, CCEEL participates actively in research on, inter alia, international energy law and these activities will be covered in future posts.

Many of us at CCEEL are closely following the global climate change negotiations and regularly participate in the UNFCCC process. We also frequently consult various organizations on international climate law and policy. Recent examples include several reports on negotiations for the Paris Agreement and the Agreement’s implementation prepared for the Finnish Ministry of the Environment.

Our research covers both general aspects of the evolution of the UN climate regime, as well as the regime’s various substantive dimensions. Some of our most recent publications discuss the Warsaw Framework to reduce deforestation through REDD+, climate finance after the Paris Agreement, and options for the enhanced transparency framework of the new treaty.

The scope of climate law is, however, much broader than the UN climate regime, and our research examines to which extent other international legal regimes can contribute to, or distract from, efforts to tackle climate change. Recent research by CCEEL staff specifically analyses efforts to address sectoral greenhouse gas emissions from international aviation and shipping through the International Civil Aviation Organization and the International Maritime Organization as well as interlinkages between climate change, ozone depletion and air pollution.  Another important topic for climate policy and for our research concerns links between international trade law and climate law, including in the context of the World Trade Organization. Our activities are not, however, confined to the international level, but we are also actively following developments related to climate law in the European Union and in Finland.

The CCEEL also has various research activities related to short-lived climate pollutants. The White project is looking at their regulation in the Arctic region, including how they are being addressed by the Arctic Council. In January 2017, we will be launching a new interdisciplinary research project ClimaSlow, funded through a 5-year grant by the European Research Council. Through this project, we will be looking at ways to strengthen the regulation of short-lived climate pollutants in key developing countries, including China, India and Nepal.

The intimate link between climate change and energy issues is also reflected in CCEEL’s research activities. We have recently studied links between climate law and renewable energy law in a special issue of Climate Law, guest-edited by CCEEL staff. Moreover, we are interested in examining the international regulation of energy subsidies, and in particular fossil fuel subsidies. Related to this, we are exploring the extent to which – and under which conditions – international institutions can help steer countries away from fossil fuel production.

With this introduction, we welcome all our students, researchers and the broader climate and environmental law community to follow our blog and engage in interactive discussion through comments.

 

UPCOMING BLOG POSTS

  • Rainforests in the Paris Agreement: Old Wine, New Bottles? – Eugenia Recio, PhD Candidate, CCEEL, UEF Law School
  • Regulation of Short-Lived Climate Pollutants in the Arctic: Interim Outcomes of the White Project, Dr Yulia Yamineva, Postdoctoral Researcher, CCEEL & Dr Sabaa Khan, Postdoctoral Researcher, CCEEL
  • Relevance of the Paris Agreement for International Environmental Law - Prof. Harro van Asselt and Prof. Kati Kulovesi

This post has also been published at "Oikeutta kohtuudella", the official blog of UEF Law School.

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