CAN-EUROPE ON THE EU'S PROPOSED EUROPEAN CLIMATE LAW

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13 may 2020


CAN EUROPE’S POSITION ON THE EUROPEAN CLIMATE LAW, May 13, 2020

Climate Action Network (CAN) Europe is Europe's leading NGO coalition fighting dangerous climate change. With over 170 member organisations active in 38 European countries, representing over 1.500 NGOs and more than 47million citizens, CAN Europe promotes sustainable climate, energy and development policies throughout Europe.

May 2020
On March 4th 2020 the European Commission published a draft European Climate Law. The draft is a short, 11 Articles document mainly focusing on enshrining the agreed 2050 climate neutrality target into law.
CAN Europe believes the proposal can be substantially improved, including by increasing the relevance of the proposed Law by adding more substance and measures.
Our below proposals focus on the specific articles of the draft law, based on the following structure:

• Introduction
• Climate targets – Article 1 and 2
• Trajectory setting via delegated acts – Articles 3 and 9
• Adaptation – Article 4
• Climate policy consistency – Article 5 and 6
• Scientific body – missing
• Public participation and access to justice – Article 8

Introduction

The Climate Law is a good step forward and could be a great opportunity and tool for climate governance. The Law plants many good seeds but falls short of actual progress further than enshrining the climate target into law.

Climate targets – Article 1 and 2

Article 1 and 2 state that the EU will become climate neutral by 2050 and announce the Commission will come up with a proposal for a new 2030 target of 50% to 55% in September 2020. After the adoption of this new target, the Commission will put forward a new legislative proposal to ensure its implementation.

CAN Europe believes that in order for the EU to contribute its fair share to achieving the 1.5°C target of the Paris Agreement, the bloc will need to achieve net-zero greenhouse gas emission by 2040. Furthermore, It is essential for CAN Europe that the 2050 target applies to each Member State individually.

CAN Europe also calls for the EU's 2030 climate target to be increased to at least 65%, in line with the recommendations of the last UNEP Emissions Gap report calling for an annual reduction of greenhouse gas emissions by 7.6% in order to reach the 1.5°C limit. CAN Europe urges the EU to adopt this new target in 2020, in line with the commitment made at the 2015 Paris Climate Summit.

In order to achieve climate neutrality, the EU also needs to increase the expansion of natural sinks through ecosystem restoration. Therefore, it is important that on top of a 2030 emission reduction target, the EU also adopts a separate target for net greenhouse gas removals in the land use and forestry sector.

The draft Law also fails to indicate what will happen after 2050. Most scientific scenarios that look at how to achieve the Paris Agreement objectives are based on scenarios until at least 2100, and what happens after 2050 in terms of emissions and removals obviously impacts the chances to achieve the 1.5°C target.

Trajectory setting via delegated acts - Article 3


The Law in Article 3 plans for the Commission to set a Union level trajectory that would be reviewed every five years, within six months of the global stocktake. This means the first trajectory will be calculated from 2030 onwards every five years until 2050. When setting the said trajectory, the Commission shall consider 10 elements, starting with cost effectiveness and ending with scientific evidence.

The use of the delegated acts to define the trajectory is controversial. A delegated act can be taken by the Commission on non-essential issues and Member States and the European Parliament have limited options to influence it. Hence there have been strong statements from MEPs and Member States rejecting this proposal.

For CAN Europe it makes sense for the Commission to strengthen its powers if this leads to a stronger impact of science on setting the future emission reduction targets. However, as the start and end points of the trajectory will not be part of this exercise, there is little to be gained as the trajectory will be rather obvious. We believe first and foremost the EU should substantially increase its 2030 target.

CAN Europe is concerned that the order of these considerations might also be an indication of their priority. This illustrates a lack of support for a scientific approach in the law.

CAN Europe believes that when setting climate targets, the primary concern should be the scientific evidence of what the EU and its Member States must do to limit global temperatures to 1.5°C.

With this in mind, the trajectory should not start after 2030, it should start now. If it does not, then there is a very real risk that policies will only be assessed for consistency with the long term goal or a post-2030 trajectory, when we know that the critical issue is what happens in the next 5-10 years – and whether EU policies governing that period are fit for purpose. The trajectory should therefore start as of 2020.

CAN Europe also calls for the equity principle underpinning the Paris Agreement and the UN Framework Convention on Climate Change to be included into the considerations for the trajectory. If we were to take equity into account the target for 2030 would in fact have to be much higher.

To guarantee targets and policies are based upon science, that evolves and changes, the Law must contain a review clause. The review should take place every five years in line with the Paris Agreement five-year cycle. The targets set out in Article 2 should be reviewed in light of the best science available. The 2050 and 2030 targets should not be seen as being set in stone.
Article 9 of the Law states the procedure the Commission shall follow for the adoption of the said delegated acts. One of the steps involved will be the consultation with national experts designated by each Member State. Adding to this, Article 9 makes no mention of gathering public input at the same time as expert advice, which is mandatory under the interinstitutional agreement for better law making, paragraph 28. The Law here simply requires a series of non-transparent and bilateral engagements with national experts. There is no control of the kind of expertise provided, no guarantee the advice will be science based.

Adaptation – Article 4

Article 4 requires that the relevant EU bodies and the Member States will ensure to increase their adaptive capacity and Member States will develop adaptation strategies.
The timeline for this is unclear.
CAN Europe calls for the law to request the Commission to propose an updated EU Strategy on Adaptation to Climate Change. Indeed, the Commission and all Member States need to ensure national, regional and local authorities anticipate, avoid and/or manage key impacts of climate change, and address the challenge of loss and damage caused by climate change that is happening. The EU Member States need to ensure that vulnerable communities within the territories are protected and supported so that they enjoy full access to basic services and opportunities, and respect for their human rights.

Consistency – Articles 2 and 5

Articles 2 and 5 contain various mechanisms for consistency checks building up to the 2050 climate neutrality goal.

The first is the review of the 2030 climate target, the law will be amended when discussions on the target are finalised. Secondly the Commission plans to undertake a binding assessment of Union legislation by June 2021 to make sure it is in line with the increased 2030 target. If the legislation is not in line the Commission will only ‘consider’ taking the necessary measures, the language used here does not impart enough obligation upon the Commission. Thirdly, by September 2023 and every five years thereafter at the same time as the five-year review of the trajectory the Commission will check if the existing measures are in line with the 2050 target of climate neutrality. The fourth means of checking consistency is that the European Commission will assess any new draft legislation measure at the time of publication. However, the trajectory is only starting after 2030 – meaning there will be no check of existing legislation up until then.

It remains unclear why policy consistency checks will only start after 2030, when they should be starting as of now. Indeed, Climate mainstreaming is already a principle of EU environmental law making enshrined in the EU Treaty, but still remains a challenge to implement in practice. The Law should therefore be very clear that it applies to the development and implementation of all policies. The Climate Law does not currently include any provisions for climate consistency pre-2030.

The Law includes some welcome elements in terms of these consistency checks. However, the main fallback is that these will not apply until post 2030. CAN Europe is of the mind that consistency checks of existing and to be developed policies should start as of now (2020) and not post 2030, when the trajectory will be decided. Indeed, the way it is written now could mean we face another decade of harmful policies. Currently, collective pledges for greenhouse gas emissions reductions submitted to the UNFCCC will set the world on track for a +3°C global temperature increase by the end of the century, severely threatening the survival of human civilization. The next ten years will determine if the EU will be able to achieve climate neutrality by 2050. For consistency checks to be of value all assessments and recommendations made by the Commission must be public – this is not the case in the law. As mentioned above, to allow for more transparency, accountability and scrutiny over the Commission CAN Europe calls for full disclosure of all assessments made by the Commission in line with its obligations under the Aarhus Regulation. Another element that will enhance and contribute to transparency is the scientific body that will be able to put forward independent expert scientific advice regarding the alignment of policies with climate targets.

Governance and Scientific body

The reference to climate science as a building block for future climate policy is very weak in the Climate Law. This contradicts the importance the EU has always given to the work of the UN's scientific panel on climate change, the IPCC. CAN Europe believes the same support for climate science as a basis for international climate policy development should be visible, supporting EU climate policy.

CAN Europe therefore calls for effective, independent and accountable climate governance which requires mechanisms to support the emergence of independent scientific opinions concerning the sufficiency of EU action in relation to the set targets. Indeed, the law proposes to concentrate significant power in the Commission to deliver climate governance but fails to balance this shift with the appropriate mechanisms for ensuring the Commission can be held to account for the exercise of its powers and duties which weakens the entire legitimacy of the governance framework. Failure to resolve these accountability issues will lead to a Law with no real backbone for ensuring climate policies and targets are science based.

Many national climate laws have created independent scientific expert bodies for the specific purpose of providing independent transparent scientific advice to governments about the type of action required and to monitor their progress towards climate targets. CAN Europe believes that the inclusion of a scientific independent body in the climate law is primordial to ensure legitimacy and accountability of the Commission and ensure that climate science is duly taken into account in climate policy and climate targets. This body would be tasked with the job of providing independent scientific advice regarding the setting of targets, the trajectory, the consistency of EU measures, where additional measures are needed and will report to the Council and European Parliament. Its independence being paramount, it will not be a non-stakeholder body and each expert shall ensure their lack of conflict of interests.

Access to justice and public participation – Article 8

The Law contains a general Article on public participation requiring the Commission to engage with all parts of society to identify areas of collaboration to work together towards climate neutrality and give nation, regional and local levels a sense of empowerment.

The very presence of a paragraph dedicated to public participation in the Law is to be celebrated. In doing so the Law recognises that governance of the transition to carbon neutrality and climate resilience must be inherently participative. Litigation is universally recognised as a valid and necessary part of citizen action towards such objectives. However, it does not give EU citizens any means of holding the Commission accountable in front of the Court. Indeed, although Member States and institutions could exercise their powers to seek judicial review of action or omissions of the Commission it is almost impossible for individuals or NGOs to be granted standing. Genuinely participative climate governance therefore requires individuals and NGOs to be granted standing in front of the Court.

CAN Europe calls for a reinterpretation of the Court's jurisprudence, that has interpreted the Treaty too strictly up until now, clarifying that citizens and their representatives are directly and individually concerned by the compliance of the EU’s bodies with the Paris agreement goals. This does not require any Treaty changes. Indeed to this date no individual or NGO has ever had standing to challenge an act in the public interest.

The Aarhus Convention, to which the EU is a party, also enshrines the right to information and public participation. CAN Europe therefore calls for the Commission to publish all assessments containing environmental information in an adequate, timely and effective manner allowing for, where relevant, public input.



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