The Role Of The Courts In The Global Warming Struggle

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In order to achieve the purpose of a 20% reduction of emissions by 2020, the European authorities must modify the ETS Directive in a manageable way, principally on four fundamental points: the enlargement of the Directive's scope; the scarcity of the EU allowances; the sanction of any illegal emission; and a wider access to justice in environmental matters especially also with regard to community decisions concerning greenhouse gas allowance trading. It seems that the European institutions are on their way to completing these fundamental requirements, except perhaps for a better access to justice. The

- not published in the Official Journal]. 'The air transport sector currently accounts for 3% of all greenhouse gas emissions. However, the rapid growth of this sector means that aviation could eventually become the main source of greenhouse gas emissions, despite improvements in aircraft energy efficiency. Between 1990 and 2003, greenhouse gas emissions from international air transport increased by 73% in the EU. If the sector continues to grow at the current rate, by 2012 emissions will have increased by 150% since 1990'; Commission Staff Working Document of 27 September 2005 -Annex to the Communication from the Commission 'Reducing the Climate Change Impact of Aviation' - Impact Assessment [SEC(2005)1184]. See http://europa.eu/scad-plus/leg/en/lvb/l28160.htm. See recently the Common Position (EC) No 13/2008 of 18 April 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community. (O.J.E.U., C 122 E, Volume 51, 20 May 2008, p.19).

90 Upston-Hooper and Mehling (2007, p. 308). COM (2008) 16 final, p. 9.

industries should be able to be admissible in their claims against a decision of the Commission. The ETS system would probably be better if the subjects of it, the companies, could explain their points of view before a Court that could correctly appreciate their arguments. Of course, the European judges do have not to agree automatically with the companies' arguments, but at least they can listen and give an answer to these claims. In our point of view, the majority of the actual difficulties about the methods of allocations ensue from the 'grand-fathering' method, applied by the Member States in accordance with the already mentioned principle of subsidiarity. That principle has the practical effect of allowing a wider margin of appreciation to the Member States when they apply the clauses of the Directive. However, the actual proposals to amend the Directive could bring a (limited) solution to that problem. Under these proposals, the auctioning method would become the main method for allocations.91 If these amendments are passed, the total number of companies' claims would presumably decrease, because the allowances will be allocated by means of an economic logic, which is much more difficult to contest before a Court. In facts, Member States would lose a sizeable part of their margin of appreciation, and the difficulties ensuing from the national allocation plans elaborated on the grandfathering method would, logically, also disappear (or, at least, be reduced). In other words, there will be even fewer opportunities for industries to go to European and national courts.

Judges also contribute to environmental protection. The real contribution of the Court is that the judges permitted a real and protective environmental dimension to be brought to the ETS system. With United Kingdom v. Commission and Germany v. Commission, the Court consecrated the importance of the public participation during the NAP process, following a rationale of democratic efficiency of the Directive. When the Court forbade the possibility of 'real banking' between each three- or five-year period in Fels Werke v. Commission, the judges also underlined the necessity to ensure that the ETS market is useful and has real environmental integrity. It seems that they authorized Member States to insert the 'annual banking' option in their NAPs, under a subsidiarity perspective. The same logic was followed in Germany v. Commission, when the Court of First Instance accepted the German downward ex post mechanisms, sentencing the Commission's position based on its imprecise developments of its guidelines. From a rather institutional perspective, the Court also affirmed the principle that Member States are free to modify their NAPs. That possibility could not be limited by the Commission's

91 See especially the article 10, article 10a and article 10b of the proposal for a Directive of the European Parliament and the Council amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading system of the Community. C0M(2008)16 final, 23.01.2008.

suggestions. Then, the European judges expressly underlined the difference existing between the 'state aid' matter, based on Articles 87 and 88 of the EC Treaty, and the Commission 'state aid' appreciation about a provision of a national plan, which is only 'a prima facie assessment of the State aid aspects of the NAP in the light of the law on State aid'. Like we mentioned, the Court has also 'imported' the limited access to justice into the ETS matter, not without some remarks. Those considerations show how the judges can play a role in the environmental matter.

More widely, it is not the first time that judges take the initiative to promote a better environment. In the United States, for some political reason, the federal Government interfered many times with the Environmental Protection Agency's expertise. Under the Clean Air Act, a threshold judgment of that Agency is necessary to trigger regulation of some sectors or pollutants. Political interferences always denigrated the quality of pollutant in the greenhouse gases. The Agency, under some political pressure, decided to decline, in connection with these gases, that threshold judgment necessary to trigger regulation of vehicles' emissions, with the consequence of rejecting it from the Act's scope. That decision had the result of leaving 'the regulatory status quo ante in place'.92 In the Massachusetts v. Environmental Protection Agency case, a 5-4 majority decided to overrule the administrative decision.93 The judges of the Supreme Court recognized the statutory authority of the EPA to regulate greenhouse gases as pollutants. The real question was to know if, 'on the merits of the relevant statutes, the agency is failing to do something it is legally obliged to do'.94 For the Court, the Agency 'had failed to justify adequately its denial' because 'EPA may decline to make a statutory judgment only on technocratic and scientific grounds, not political ones'.95, 96 In fact, this decision can be interpreted as a political decision of the Court. The judges did not want to submit to such an important influence by the American central administration in administrative decisions, especially when this influence pursues a political purpose.97

92 Freeman and Vermeule, 'Massachusetts v. EPA: From Politics to Expertise', p. 23. Text to be published in The Supreme Court Review, 2007, available on http://www.law.harvard.edu/faculty/freeman/.

94 Freeman and Vermeule (2007, p. 21).

96 Freeman and Vermeule (2007, p. 21).

97 Recently, the Regional Greenhouse Gas Initiative was taken. It is an American interstate agreement 'by ten northeastern states to reduce carbon dioxide emissions from power plants in the Region'. To an analysis of the connections between this agreement and the Compact clause, see 'The Compact Clause and the Regional Greenhouse Gas Initiative', in Harvard Law Review, Vol. 120, May 2007, Number 7, pp. 1958-1979. See also Driesen (2007).

Next to the European jurisprudence, this decision is one of the most interesting examples to show the importance and the influence of the judges in the environmental law of today.98 Is that a new example of the judges' activism? However, the role of the European judges in the development of this environmental interpretation has to be alleviated in the capacity of the existence of the subsidiarity principle. When Member States can freely adopt more protective environmental measures, the environmental influence of the judges is less directly marked. On the other hand, it is not a reason to minimize their role within the development of the ETS system.

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