Emissions impossible

Few statements from the European Commission (EC) can excite as much passion as the recent 2030 framework for climate and energy policies.

The proposals – which relate to the ‘effort sharing decision’ half of the EU emissions regulation (as opposed to the Emissions Trading Scheme) – set limits on the Green House Gas (GHG) emissions of each state.

If adopted, the Commission’s proposals will go further than the current target of a 20 per cent reduction (against 1990 levels) by 2020, binding states to a 40 per cent reduction in emissions across the EU, and demanding that 27 per cent of energy comes from renewable sources by 2030.

But it is fair to say that, despite the positive sheen put on the announcement by the EC, the proposals met a mixed reception.

Writing in Holyrood, WWF’s climate and energy policy officer, Gina Hanrahan, said: “By suggesting a greenhouse gas emissions target out of line with climate science, alongside a low and weak renewable energy target which offers no certainty of delivery, these proposals appear to be putting the brakes on modernising Europe’s energy system.”

In contrast, the UK Government praised the emissions reductions, though it had argued against the renewable targets during negotiations, claiming that they would lead to higher fuel bills.

As a result of the UK’s intransigence in talks, the renewable targets are non-binding, meaning that EU governments are essentially free to ignore them, without any fear of legal repercussion.

So with the UK and other member states watering down renewable action, just how binding will the emissions targets be?

To Apolline Roger, Senior Teaching Fellow in Global Environmental Law at the University of Edinburgh, the binding nature of the emissions reductions targets give the framework a strong basis for enforcement – at least in theory.

“When a member state does not respect its obligation under EU law the Commission – which is independent of the EU’s the Court of Justice of the EU (CJEU) for infringement of EU law. The Commission has full discretionary power to do this – it is completely free to do so, or to decide not to”, she explains.

But the preliminary stages of the procedure would see lengthy negotiations, and the Commission can decide to drop the case if a state shows it will hit targets in the near future.

If the procedure begins then there will be further negotiations, and if these are unsuccessful then the commission will produce a ‘reasoned opinion’, which will be followed by more technical meetings (negotiations), before the case goes to the CJEU.

Even at this point there is still no fine or penalty if the CJEU finds that the state has breached EU law. But the Commission can bring the case again if the state does not respect the judgement, and if the state fails the process a second time there will be a lump sum penalty.

The process involves a lot of ‘ifs’, but provided the case went through the infringement process a second time, the threat of a penalty is generally effective.

Roger says: “The fine can be significant and the whole infringement proceeding is certainly a good legal incentive to comply. However, there is a significant political component in this procedure: in the use of its discretionary power, the Commission takes into account multiple political factors – and in the case of GHG emissions it is very likely that the Commission will do a careful evaluation of these factors, which might lead to its inaction.”

This means that although the proposed EU emissions targets are binding obligations, with real consequences for a state which does not respect them, politically it is unlikely that a state would be dragged to the CJEU.

Roger says: “Across all environmental law the EU tries to create ambitious targets and the Commission often brings states before the Court when they do not respect their obligations. The climate targets are maybe not as ambitious as they could be, but if you compare them to most of the other states outside the EU, then they are pretty good.

“However, the Commission might show more tolerance towards member states in the implementation of climate policy because of its complexity: reducing GHG emissions requires action in nearly every sector, and in very sensitive national questions – for example transport, building and energy,” she adds.

The legal process then, is not free from political interference. In contrast to their UK counterparts, the Scottish Government welcomed the proposals, saying: “We believe the agreement at an EU level will help to help encourage other major emitters to achieve a global climate agreement.”

One significant factor in the Scottish Government’s relaxed approach to the EC targets is that they do not particularly affect it – given that the Scottish Parliament has already passed tighter targets in the shape of The Climate Change (Scotland) Act, considered one of the most ambitious pieces of climate change legislation anywhere in the world.

The Act sets targets of cutting emissions by at least 42 per cent by 2020 and, unlike action, includes annual targets.

Scotland’s legislation, which has received plaudits from figures ranging from UN Secretary General Ban Ki Moon to Rajendra Kumar Pachauri, Chairman of the Intergovernmental Panel on Climate Change, is certainly ambitious. The problem though, is that Scotland has missed its emissions targets for both 2010 and 2011, and there are no guarantees it will meet the 2012 one (the data is expected in the summer).

The Government does have a decent excuse: the way Scotland measures emissions has changed, meaning that emissions levels from previous years are now set higher, and so reductions must go further.

The Government also pointed to the extreme cold weather at the start and end of 2010, which led to increased household emissions from heating.

Environment Secretary Richard Lochead said: “Despite the methodological changes, which added more than two million metric tons of carbon dioxide equivalent to almost every year from 1990 onwards, the net Scottish emissions account for 2010 and 2011, based on the updated 2011 Scottish inventory, were respectively 23.4 per cent and 25.7 per cent lower than the base year.”

“The key issue is that the long term trend shows that emissions are reducing in Scotland and, while there will no doubt be further annual fluctuations around trend, we remain confident Scotland is on a trajectory to achieve the ambitious 2020 target of a 42 per cent emissions reduction. Scotland’s unadjusted emissions have fallen by 29.7 per cent from 1990, and between 1990 and 2011 Scotland’s emissions reduction was the largest in Western Europe.”

Claire Baker, Labour’s Environment spokesperson, was less forgiving. She says: “The Government will look to excuses for missing these targets – one year we were told it was too cold, the next year it was too warm. Now when you miss them year on year, it becomes even harder to catch up, so even though after missing them the government says there will be recovery progress, that progress has become harder.

She continues: “Our targets are certainly ambitious, but the parliament agreed to them because of the importance of the challenge of climate change, and so we have a responsibility to set significant targets. We can go around the world telling people that we have ambitious targets but we have to recognise that if we continually fail then it damages our credibility and also damages other countries’ confidence in setting targets of their own.”

To WWF’s Gina Hanrahan, emissions levels provide a real test for whether politicians have the will to combat climate change, or if the tough talk is simply rhetoric.

She said: “Missing targets damages the credibility of the politicians who are supposed to be implementing the Act.  The targets are eminently achievable – the government has a plan that sets out what needs to be done and by when. But as the latest Scottish Budget shows, we’re failing to fund policies on low carbon transport or energy efficiency in housing.

“There are plenty of countries around the world that are taking action to reduce emissions and move to renewables: German energy conservation policies, Dutch cycling schemes, Danish district heating schemes – these are policies that are not being introduced in Scotland at the right scale to meet our targets. We can either choose to implement the right policies and hit the targets, or we can choose not to and allow others to take the lead.

“Scotland was at the centre of the industrial revolution, so we can be at the heart of the low carbon and renewable revolution too.   We have colleagues across our global network who are very interested in Scotland’s Climate Act as their own Governments set out plans for climate legislation.  Scotland definitely has a place on the global stage as a leader on low carbon ambition, but its influence is going to diminish pretty quickly if it doesn’t make more progress to cut emissions.”