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Directive 2003/4/EC as a Tool to Learn from the Successes and Failures of the EU ETS: Reflecting on the EU Emission Trading System
- Edited by Marlon Boeve, Sanne Akerboom, Chris Backes, Marleen van Rijswick
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- Book:
- Environmental Law for Transitions to Sustainability
- Published by:
- Intersentia
- Published online:
- 11 November 2021
- Print publication:
- 06 April 2021, pp 109-128
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Summary
INTRODUCTION
The transition to a sustainable future has been on the EU's agenda for many years. One of the key challenges in this transition is to reduce greenhouse gas emissions. Since its launch in 2005, the EU Emission Trading System (EU ETS) has been one of the cornerstones of the EU's efforts to reduce greenhouse gas emissions. Now, at the end of phase 3 of the EU ETS, it is timely to ask what we can learn from its successes and failures, with a view to fine tuning and improving the system. Most literature on the EU ETS has, thus far, focused on identifying weaknesses in the system with a view to suggesting improvements. The weaknesses that have been identified by the literature are mostly structural deficits or results thereof, such as the free allocation and the large surplus of allowances and the sanctioning provisions of the EU ETS. In addition, the literature has dissected the compliance cycle of the EU ETS; the set of rules that is intended to ensure that participating industries comply with their obligations. Even though these studies have contributed to a better understanding of the EU ETS and have suggested improvements, it is hardly possible to properly review, for example, the compliance cycle, since available information on the enforcement of and compliance with the EU ETS rules is mostly published in aggregated form.
However, to be able to identify aspects that need improvement, it is necessary to dig deeper. Consequently, in addition to the question of what we can learn from the successes and disappointments of the EU ETS, we must ask whether we are actually in a position to reflect on the EU ETS compliance cycle. The Aarhus Convention and the Access to Environmental Information (AEI) Directive set out that the public must, in principle, be given access to environmental information held by public authorities upon request. Since the EU ETS ultimately aims at protecting the environment by reducing greenhouse gas emissions, requests for information related to the EU ETS generally fall under the Aarhus regime.
12 - Private Control of Public Regulation: A Smart Mix?
- from Part III - Climate Change and Oil
- Edited by Judith van Erp, Universiteit Utrecht, The Netherlands, Michael Faure, Universiteit Maastricht, Netherlands, André Nollkaemper, Universiteit van Amsterdam, Niels Philipsen, Universiteit Maastricht, Netherlands
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- Book:
- Smart Mixes for Transboundary Environmental Harm
- Published online:
- 15 March 2019
- Print publication:
- 28 March 2019, pp 259-284
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Summary
This contribution discusses from a legal perspective the role of private actors for controlling compliance with public law greenhouse emission reduction obligations. Compliance is generally the Achilles heel of environmental law. Traditionally, the governments set standards and control compliance. Within the EU, however, the EU legislator is experimenting with involving self-control and verification procedures in view of determining compliance by industries with public law regulations. It does so by introducing in its regulation a mix of governmental and private action in view of effectively reducing greenhouse gas emissions. Moreover, in EU law, the public is given wide access to environmental information held by the government, which may also be beneficial, or at least to some extent helpful, for controlling compliance with set rules. In other words, civil society has some means to control governmental action, and, in this vein, the question arises to what extent these rules also apply to information held by the verifier. The contribution focuses on one specific but important case: it will discuss this regulatory mix of governmental and private action by delving into a key measure in EU climate law: the EU emissions trading scheme, thereby particularly investigating the role that private actors may play in checking compliance. In this respect, two categories of private actors will be distinguished: • On the one hand, the so-called verifiers that are tasked with controlling the emission reports of industries covered by the EU emissions trading scheme. In fact, the EU chose to apply a “double” market based approach: firstly, the industries are covered by emissions trading, and, secondly, the private sector (the verifiers) has to compete with each other for winning contracts with industries for conducting the control of the emission reports. • On the other hand, attention will be paid to the actors in civil society who want to check whether industries comply with EU law, in the sense of not emitting more than legally allowed. The role of civil society for strengthening (compliance with) environmental law, and hence contributing to the effectiveness of regulation, is stressed by the Aarhus Convention, giving important procedural rights like particularly the right to have access to environmental information held by the government. This procedural right may be helpful, to some extent, for checking compliant behaviour. However, how and to what extent can civil society check whether duties of industries with regard to controlling emissions are complied with? Can the private verifiers be covered by this access to information laws? In other words, can civil society use the procedural rights for checking the performance of the private verifiers? The ultimate aim of the contribution is to answer the question of how this (experimental) mix of governmental and private action for regulating the reduction of greenhouse gas emissions is designed in view of enabling transparency that is seen as a crucial element for reaching effectiveness: to what extent can civil society know about how industries are regulated and controlled, also in view of the fact that private actors (verifiers) have got the task to check compliance? This issue of transparency is chosen since, generally, public control (particularly action by Environmental NGOs) is seen as an effective tool to stimulate ambitious environmental regulatory action (although in this respect, also more research needs to be done on the effectiveness and legitimacy of ENGO action). The concluding section will summarize the findings by pointing at potential problems with transparency caused by the choice of using private actors for checking compliance with public standards.