CCLR 3/2010

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Issue 3/2010

Table of Contents

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Harro van Asselt and Michael Mehling
Carbon and Climate Law Review 3/2010: pp. 215-218
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Does the European Union still matter when it comes to mitigating global climate change? While this question may appear overly dramatized, observers of the international climate change debate have started to wonder whether the EU is still able to influence the course of negotiations on a post-2012 climate regime. Contrary to a wide misperception, the EU did have a seat at the table when the Copenhagen Accord was being drafted in December 2009. Yet the final agreement is seen primarily as a deal brokered between the United States and China. On crucial issues, the Accord does not reflect the official negotiating stance of the EU. Among many other elements, it does not provide an indication of how – let alone when – to arrive at a legally binding agreement, nor does it set out specific levels of greenhouse gas emissions that major emitters should achieve in coming years.

Sanja Bogojevi´c
Litigating the NAP: Legal Challenges for the Emissions Trading Scheme of the European Union
Carbon and Climate Law Review 3/2010: pp. 219-227 [Article]
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There has been a sharp increase in the amount of litigation regarding the European Union Emissions Trading Scheme in recent years. Cases revolve mainly around the limits of the Commission’s discretion in reviewing National Allocation Plans (NAPs). This may seem a mere technicality; however, as this article aims to show, it is better described as an undercurrent of legal challenges relating to the allocation of authority between the Member States and the Commission in this particular climate change regime. By examining four cases in particular – United Kingdom v Commission, Germany v Commission, Poland v Commission and Estonia v Commission – attention to these issues will be brought to light, and the idea of caps being simply instrumental in emissions trading refuted.

Marijn Holwerda
Subsidizing Carbon Capture and Storage Demonstration through the EU ETS New Entrants Reserve: A Proportionality Test
Carbon and Climate Law Review 3/2010: pp. 228-239 [Article]
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Upon its adoption in the Directive revising the European Greenhouse Gas Emission Trading Scheme (Directive 2009/29), Article 10(a)8 was heavily criticized by a number of environmental organizations and legal scholars for disturbing the EU ETS’ market mechanism. Article 10(a)8 provides for the possibility to co-finance the up to 12 planned European Carbon Capture and Storage (CCS) demonstration projects as well as innovative renewable energy demonstration projects through the EU ETS new entrants reserve. The criticism of Article 10(a)8 raises doubts as to the article’s consistency with the EU ETS (and its overarching goals) as such and, in essence, questions the measure’s proportionality. It is not unthinkable that the EU law principle of proportionality will in future be used to challenge the validity of Article 10a(8). This article argues that it is in that case unlikely that the Court of Justice of the European Union would declare Article 10a(8) to infringe the principle of proportionality.

Avelien Haan-Kamminga, Martha M. Roggenkamp, and Edwin Woerdman
Legal Uncertainties of Carbon Capture and Storage in the EU: The Netherlands as an Example
Carbon and Climate Law Review 3/2010: pp. 240-249 [Article]
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The new EU Directive for the geological storage of CO2 aims at providing a legal framework for the development of CCS. However, the Directive does not remove all legal barriers and uncertainties. Capture, transport and storage of CO2 are covered by a large number of international, European and national regulations, resulting in various legal unknowns. These obstacles and uncertainties need to be removed in order to provide companies with a proper incentive to invest in CCS.

Charles E. McLure, Jr.
The Carbon-Added Tax: An Idea Whose Time Should Never Come
Carbon and Climate Law Review 3/2010: pp. 250-259 [Article]
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A “carbon-added tax” (CAT) patterned after the credit-method value-added tax is inadvisable. CAT would be calculated by subtracting (allowing credit for) tax on the carbon content on imports, shown on invoices, from the carbon content of sales. Since the carbon content of products is unobservable, CAT on sales would be based on carbon foot printing. An economy-wide CAT that extended through the retail level would impose enormous costs of compliance and administration and thus not be cost-effective. The same ad hoc methods would be required to calculate border tax adjustments (BTAs) on imports as for other carbon taxes. It would be better to tax carbon upstream and limit BTAs to a few carbon- and trade-intensive basic products.

Ludger Giesberts and Alexander Sarac
An Appeals Process for the Kyoto Protocol’s Clean Development Mechanism
Carbon and Climate Law Review 3/2010: pp. 260-270 [Article]
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Being able to challenge a decision taken by an administrative body, regulatory authority, or junior court is a concept with which most individuals and corporate entities will be instinctively familiar. It is a principle which lies at the heart of the majority of developed legal systems around the world. However, the commercial stakeholders operating within the CDM are an exception; for them there is no appeal from the decisions of the CDM Executive Board. Although understandable, given the genesis of the CDM arrangements as a supra-national creature of stature as opposed to a domestic body, the reality is that the CDM is a forum with a direct interface with private (non-state) actors and their interests. This absence of recognition has caused significant concern and, in the view of some, is symptomatic of an institutional approach which threatens to undermine the CDM. This article makes a case for introducing an appeals process in the context of both the CDM specific debate and in the wider setting of the principles of rule of law and the separation of powers. Against this background, the article evaluates some key elements which a CDM appeals framework might embody and explains some of the options available to the CDM institutions, should they take steps to implement a new framework.

Natascha Trennepohl
Brazil’s Policy on Climate Change: Recent Legislation and Challenges to Implementation
Carbon and Climate Law Review 3/2010: pp. 271-277 [Article]
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Brazil has recently approved its National Policy on Climate Change and set greenhouse gas (GHG) emissions reduction targets for 2020. Central characteristics of this policy and obstacles to its implementation are described in this article, starting with a short overview of Brazil’s GHG emissions and energy matrix, as well as some pioneering programs that have helped reduce GHG emissions. The adoption of this policy shows a major shift in the country’s attitude toward GHG emissions; however, there are still important challenges in its implementation that need to be overcome.

Mark Byrne
Climate Crime: Can Responsibility for Climate Change Damage be Criminalised?
Carbon and Climate Law Review 3/2010: pp. 278-290 [Article]
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As the world drifts towards dangerous climate change, there have been allegations that the acts or behaviour of governments, corporations and even individuals constitute “climate crimes.” In the near future, nations that see themselves as victims of climate change may also use the allegation of climate crime to seek redress from those they hold responsible. It is unlikely that exceeding emission targets or failing to assist victim states with adaptation efforts will be criminalised, although they may be subject to stronger or new civil sanctions in international law. Nevertheless, some harmful acts which contribute to climate change damage and are relatively easy to monitor and prosecute are likely to be subject to criminal sanctions.

Jørund Buen
In the Market
Carbon and Climate Law Review 3/2010: pp. 291-293 [Feature]
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Clarifications recently published by the CDM Executive Board (EB) and the Joint Implementation Supervisory Committee (JISC) regarding the period beyond 2012 brush aside any doubts about the future role of the CDM, and also provide more clarity on the post-2012 role of JI. The clarifications came as something of a surprise following an earlier analysis issued by the UNFCCC Secretariat on the implications of a gap between commitment periods that had signaled a much more uncertain future for both. The message this time is very clear: all components of the CDM will continue to be operational post-2012, regardless of whether Annex I countries inscribe post-2012 emission limitation and reduction targets in the Kyoto Protocol or not.

Lisa Zelljadt, Leonardo Massai, Megan Ceronsky
Current Developments in Carbon & Climate Law
Carbon and Climate Law Review 3/2010: pp. 298-303 [Feature]
[Click here to show Abstract]

As this issue went to press, negotiators were wrapping up the last round of the United Nations Framework Convention on Climate Change (UNFCCC) negotiations before the 16th Session of the Conference of the Parties (COP) to the UNFCCC and the 6th Session of the Meeting of the Parties to the Kyoto Protocol (MOP) in Cancun: the 14th Session of the Convention’s Ad Hoc Working Group on the Kyoto Protocol (AWG-KP) and the 12th Session of the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) in Tianjin, China. After a similar round of talks in August in Bonn, progress at the Tianjin meeting toward a set of options for decisions to be taken by high-level negotiators in Cancun looked doubtful.

compiled by Harro van Asselt
Book Reviews and New Publications
Carbon and Climate Law Review 3/2010: pp. 304-314 [Feature]
[Click here to show Abstract]

At a moment when international negotiations have run into stalemate and the international community procrastinates concluding an urgently needed climate agreement, this book is an important reminder that tackling climate change is not just a matter for states and world leaders. Bringing about effective mitigation and adaptation action depends largely on the capabilities of the private sector and the appropriateness of corporate responses. With Corporate Responses to Climate Change, Rory Sullivan, editor and co-author of this book, presents an informed, well-researched and neatly-written analytical study on the state of play and the merits of corporate self-regulation as part of the regulatory framework of climate change policy.

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