Electronic Journal of Comparative Law, vol. 14.3 (December 2010), http://www.ejcl.org
Climate Law in The Netherlands: The Search towards a National Legislative Framework for a Global Problem
M. Peeters[(]
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1. Introduction
Comparative studies of national and sub-national legal climate change approaches can help us to understand the strengths and weaknesses of different governmental choices made in practice. This Chapter aims to provide a modest contribution to such comparative research.[1] It provides a first overview and discussion of the current state of affairs with respect to developing national climate legislation in the Netherlands. In advance, it needs to be stated that providing a complete overview is an extensive task, since the amount of Dutch climate related rules is already enormous. Moreover, this vast framework is quite fragmented.[2] This Chapter hence intends to discuss only the most important current climate related laws and initiatives for such laws in the Netherlands, but this will be done under the recognition that more research is needed to get a full overview and, more importantly, to understand not only the content of each applicable law but also the linkages between the several relevant rules.[3]
The structure of this contribution is as follows. First, Section 2 will elaborate on the relevance of studying national climate law. Section 3 will turn to the Dutch laws containing mitigation measures (mitigation refers to the reduction of greenhouse gases), where also the influence of international and EU-law for the national policy discretion will be discussed. Section 4 will subsequently focus on adaptation measures (adaptation refers to the protective measures against the negative effects of climate change). Section 5 will provide a conclusion and forward look with an eye on further research.
2. The Relevance of Studying National Climate Law
The Netherlands is a party to the United Nations Framework Convention on Climate Change (UNFCCC)[4] and the Kyoto Protocol,[5] and is also a Member State to the EU. In that regard, much of its national climate law is heavily influenced by the supranational legal order. The international and European climate dossier has become already broad and complex, and it has become already quite a challenge to understand the core characteristics, let alone the details of these two legal frameworks.[6]
There are nevertheless several reasons why it is important to study also national climate law. First, national legal systems will be the frameworks through which international and European obligations will be implemented and/or enforced. Hence, in addition to the examination of international and European legal frameworks aiming at climate protection, it is also important to discuss national regulatory approaches that are needed to effectively implement and enforce the international and European obligations. Specifically the EU has already established a binding package that should lead to 20% reduction of greenhouse gas emissions in 2020 compared to 1990. That binding commitment is divided into (1) the European greenhouse gas emissions trading scheme that covers a large part of industrial installations (commonly called the EU ETS, which stands for the European emissions trading scheme), and (2) emission reduction targets for Member States concerning emissions not covered by the EU ETS (the so-called Effort sharing decision).[7] The latter approach, which counts for approximately 60% greenhouse gases EU-wide,[8] leaves in principle ample discretion for Member States to develop a national policy for meeting such targets.[9] Quite some flexibility has been provided to Member States in the form of emissions trading, which inter alia means that Member States can trade with each other part of their emission rights (which is in fact the possibility to emit as far as is allowed by the binding targets addressed to the Member States). In addition to these two core instruments (the EU ETS and the Effort sharing decision) a number of other climate related directives and regulations are applicable. Given this broad package of EU climate legislation it is necessary for EU Member States to examine which discretion is left to the national legislature for establishing a national climate policy.
From a viewpoint of accountability and compliance, it is furthermore important to see how national emission reduction targets are vested into binding law within national (and lower) legal regimes. Such targets can be a consequence of binding international law, like the emission reduction targets for the period 2008-2012 as concluded in annex B to the Kyoto Protocol. However, as progress on negotiating further international binding targets for the years after 2012 is lacking, it can also be the case that such targets follow from unilateral announcements (like the adherence to the Copenhagen Accord), or are even autonomous national choices without any clear link to an international document. As explained above, EU law already provides binding emission reduction targets for EU Member States to be complied with in the period 2013-2020, which leads to the question what should be regulated on the national level in view of ensuring compliance with such binding targets. The design of a national accountability mechanism to ensure compliance with those EU-targets, the distribution of the burden among the responsible sectors, and the decision-making by the national government to use international emissions trading are core topics in this regard. But also the role of scientific advice with regard to for instance the adoption of further going thresholds, like more intensive short-term targets, or the adoption of long-term targets and the specific national regulatory instruments in order to reach such targets deserve discussion with regard to their incorporation in national law.
And, finally, also the legal and economic position of private actors deserves a close examination from the viewpoint of national law. First, national climate law can heavily impinge upon sources, and it can be that they want to defend their case against for instance disproportional measures. Second, the need to develop alternatives for fossil fuel energy brings along changing circumstances for both economic operators as citizens. The latter can become confronted with wind-mills near their house or with a carbon storage area below their living. Third, the need to adapt the country to potential dramatic effects of climate change can affect the position of private actors (both economic actors and citizens). Moreover, decisions with regard to adaptation determine the level of protection towards possible victims. All in all, national climate law is extremely important not only for the protection of the climate but also for a balanced and justified approach towards private actors. Those actors are on the one hand economic operators whose activities possibly need to be restricted – but of course always in a justifiable way – in view of climate protection, but on the other hand also possible victims who need to be prevented from damaging effects or, in case that has not been done, who might need compensation for such damage.
And, last but not least, there is also a need to determine in particular both the incentives and barriers for national legal initiatives that would go beyond the ambition of the international and/or European obligations. The international decision-making process under the UNFCCC has thus far failed to produce a binding agreement with regard to emission reduction targets after the year 2012, and the EU has provided targets only up to 2020. In that regard, it will be interesting to see which responsibility will be taken by countries themselves, and whether such responsibilities will be vested into binding national law. Some Member States indeed have already announced further going targets for the year 2020 and/or have announced long-term targets, although these are not always yet concluded into national binding law.[10] The UK, however, has already adopted in its Climate Change Act 2008 binding targets for 2020 and 2050, of which the 2020 target is more stringent compared to what this country should do according to EU law.[11] By having done so, this country gives an interesting example of providing a National Climate Act that indeed goes beyond the supranational legal order. In the meantime, also on subnational levels binding targets have emerged, like in Scotland and Upper-Austria.[12] Within the Netherlands, a coalition of NGO’s started in 2007 to lobby for a specific Climate Act, with binding targets, but this idea has not got political support thus far.
3. Mitigation
3.1. The Supranational Context
Since climate change is a global problem, coherent international action is needed but this is thus far short falling. If we follow the projections given by the Intergovernmental Panel on Climate Change, action should be undertaken in order to avoid the risk of dramatic climate change and resulting significant damage to nature and people. In this respect, a precautionary emission reduction of minus 25-40% in 2020 is given as policy guidance for developed countries by the IPCC.[13]
The UNFCCC establishes a managerial framework for international decision-making with regard to climate change. The threshold for action is high: according to Article 2 of the UNFCCC, the ‘ultimate objective of this Convention … is to achieve … stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’ (emphasize in italic by this author). The term ‘dangerous’ suggests that the prevention of non-severe damage – which could for instance be economic damage – is not part of the UNFCCC framework. This means that national (and regional) approaches need to consider how to deal with non-dangerous but still damaging effects like economic effects of climate change.
The EU has set as a policy goal to prevent global warming that would exceed a two degrees Celsius temperature rise. By setting this policy aim, the EU in fact accepts a factual global warming up to two degrees and hence this is not the most stringent goal one strives for. The two degrees target is also part of the non-binding Copenhagen Accord from 2009, though it is stated that by 2015 a consideration needs to be done in view of strengthening the long-term goal towards 1.5 degrees Celsius.[14]
In the Netherlands the political parties do even not agree with regard to the existence of the global warming threat: one new and fast developing right wing party that is currently high in the polls contests the need to take climate protection actions.[15] The national elections on 9 June 2010 will hence be important in view of any further action to be taken on the national level, but it is expected that the new national government will consist of some political parties that take the need for climate action at least to some extent serious. However, the recent mistakes of the IPCC contribute to further debates with regard to the need of climate policies. Remarkably, there is no case law yet within the Netherlands dealing with the need for climate change measures. One can imagine that possible victims would ask for some mitigation of adaptation measures, while the ones that are addressed with obligations would argue that it is not necessary to take such baction. It is hence to be seen whether such arguments will be discussed for the Dutch courts.
As already said in the previous paragraph, the EU has adopted an extensive climate and energy policy package aiming at 20% reduction in 2020 coupled with a 20% renewable energy target also for 2020.[16] This package entails quite a lot of binding measures for the Member States or – through regulations – direct for private actors. The package has largely reduced the discretion of the Member States, but still some room for manoeuvre exist. There is a need however to investigate how large that policy discretion really is given the broad and complicated set of EU climate law.
In principle, it is possible for EU member states to follow a more ambitious approach compared to the EU, but it always needs to be investigated whether a specific national measures additional to EU law is indeed lawful. This depends inter alia on the legal basis of a specific already adopted EU regulation, directive or decision. The room for additional measures is quite restricted in case an EU measure has been based on Article 114 TFEU (the internal market competence) compared to Article 192 TFEU (the EU competence for environmental legislation) or the new Article 194 TFEU (EU competence for energy legislation).
The Netherlands has chosen to adopt such a more ambitious approach compared to EU law, albeit only in policy terms. In 2009 the following set of climate protection policy goals has been reconfirmed by the central government of the Netherlands:[17]
- 30% reduction of greenhouse gases in 2020 compared to 1990;
- 20% renewable energy use in 2020;
- An annual energy-saving with 2% in 2011 tot 2020.
In December 2009 the ‘Fifth National Communication under the United Nations Framework Convention on Climate Change’ has been submitted by Dutch government to the UNFCCC secretariat.[18] Also this document states an emission reduction target of minus 30% greenhouse gas emissions in the year 2020 compared to 1990. These policy goals go beyond the legally binding commitments for the Netherlands as required by EU law, but have not been vested in a legal binding document. Hence, it remains to be seen whether they will be uphold and complied with. Again, the elections in June 2010 will be crucial for the question whether the more ambitious targets will be upheld. The current binding emission reduction targets for the Netherlands are: