European Environmental Law: After Lisbon, 4th edn

Transcription

1 222 BOOKS European Environmental Law: After Lisbon, 4th edn Jan H Jans and Hans H B Vedder Europa Law Publishing, 2012; v xvi pages; 52, $90 (softback); ISBN Despite the ongoing travails of the euro, one aspect of EU law that continues to be taken seriously, both inside and outside the Union, is EU environmental law. No serious environmental law practitioner can afford to be caught unaware of the EU s leading role in setting stringent environmental requirements within the EU, nor in establishing standards that are of interest throughout the world. The quintessential, and consequently often parochial, pro-american business newspaper The Wall Street Journal editorial page routinely weighs in on the impact and, in its view, the unfairness to American firms of the need to comply with EU environmental law. 1 In addition to the already existing importance of EU environmental law is a new wrinkle, the coming into force of the Treaty of Lisbon in December According to the Institute for European Environmental Policy, one of Europe s leading environmental research organisations, While the new Treaty leaves the EU s core provisions on environmental policy substantively unchanged, it introduces a number of changes in related areas which are likely to have an impact on the environment. 3 Finally, since the publication of the previous edition of the book in 2008, there have been numerous judgments by the Court of Justice of the European Union as well as new regulations and directives that must be taken account of and put into greater context. Consequently, the publication of the fourth edition of European Environmental Law: After Lisbon is a much-welcomed and timely development. The authors are the widely acclaimed environmental experts Jan H Jans and Hans H B Vedder 1 See, eg, Editorial, Congress Takes on Unilateral Europe: A carbon tax on U.S. airline passengers, The Wall Street Journal (New York, 27 October 2011). Writing about the EU directive requiring airlines to be part of the emissions trading scheme, the editorial said: The EU says its directive demonstrates its willingness to take a stand against global warming, never mind that airline CO2 accounts for only about 3 per cent of industrial emissions globally. The likelier motive is that the EU would like the money and won t let quibbles over sovereignty or efficacy stand in its way. 2 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C 306/01, uri=oj:c:2007:306:som:en:html. 3 Institute for European Environmental Policy, Strategic EU Affairs: Lisbon Treaty Enters Force, 4 December 2009, at Strategic_-_Lisbon_Treaty_enters_into_force.pdf.

2 Book Review 223 of the University of Groningen, the Netherlands. Professor Jans, who teaches administrative law, serves as Associate Editor of the Journal of Environmental Law, as well as a member of the Editorial Board of the Journal of Environmental & Planning Law. No less a European expert himself as Professor Roger J Goebel, Director of the Fordham University Center on European Union Law, has called Professor Jans one of Europe s leading environmental law scholars. 4 Professor Vedder, who teaches economic law, is Co-Director of the Groningen Centre of Energy Law. The book contains eight chapters organised in a logical and sequential fashion (and following the same organisational scheme of the third edition for those familiar with that publication). Chapter One provides a useful overview of the development and principles of EU environmental law, including a concise but explanatory section on the impact of the Lisbon Treaty. The objectives and principles of EU environmental policy are also considered. One policy-related aspect that the authors do not seem to address, which is of importance in the reviewer s opinion, is the matter of why environmental policy has been taken so seriously by the EU. This, of course, is not entirely a legal matter. But it does provide an understanding, particularly for non-europeans, about why this area of policy-making has achieved so much attention. As two well-regarded European social scientists have written, [W]e do detect in the European public a high level of legitimacy attributed to and identification with a Green Europe. 5 The legal basis of EU environmental law is explored in Chapter Two. At the outset, the authors explain that the ordinary legislative procedure will be less complex under the new Treaty. Henceforth the European Parliament, often thought to be the greenest of all the EU institutions, will be consulted twice, as well as have the power to veto legislative adoption. Although the participation of the European Parliament does not automatically lead to more environmentally friendly legislation, the fact that they are now a genuine co-legislator must nevertheless be welcomed, 6 the authors point out. The authors also provide a useful discussion about why the interpretation of Article 192(2) of the Treaty on the Functioning of the European Union, 7 which provides for the Council of the EU to act alone, causes considerable problems, 8 particularly as it relates to provisions primarily of a fiscal nature, measures affecting town and country planning, land use and quantitative management of water resources and measures significantly affecting a Member State s choice between different energy sources. 4 Roger J Goebel, Fifty Years of European Community Law: Introduction ( ) 31 Fordham Int l Law Journal 1097 at Andrea Lenschow and Carina Sprungk, The Myth of a Green Europe (2010) 48 Journal of Common Market Studies 133 at Jan H Jans and Hans H B Vedder, European Environmental Law After Lisbon (4th edn, Europa Law Publishing, 2012), Also known as TFEU. 8 See note 6 above,

3 224 Chapter Three focuses on the matter of harmonisation and the extent to which Member States can enact tougher or, in some instances, less exacting standards than existing EU standards. An interesting approach taken in this chapter is the setting forth of two hypothetical examples, both involving emissions trading. 9 After the hypotheticals are set out, the authors carefully analyse various arguments related to Member States seeking to implement measures that are stronger than those called for at EU level. Implementation of EU environmental law is the subject of Chapter Four. While the overall discussion is useful, it is unclear why such an important topic as enforcement would not be the subject of its own chapter. To be fair, enforcement of EU environmental legislation could be the topic for an entire book and obviously the authors had to make some editorial judgments about what they would cover and in what level of detail. Chapter Five is about legal protection as it relates to EU environmental law. The discussion about direct effect of environmental directives is particularly well done. 10 The matter of when a Member State might be required to pay compensation of damages and/or losses resulting from a breach of EU law is also noteworthy. 11 Chapter Six explores the extent to which the provisions of the free movement of goods come into play in an environmental context. The chapter provides a thorough explanation in terms of environmental issues of the prohibition of measures having an effect equivalent to quantitative restrictions on imports and exports. As the authors note, A large number of national environmental measures are in principle covered by the definition given in the Dassonville 12 case of a measure having equivalent effect to a restriction on imports. 13 The environment and competition are the subject of Chapter Seven. In many places in the book, the authors provide clear and distilled assessments of the issues at hand. This is perhaps no more clearly reflected than in the following commentary in this chapter about the relationship between competition and environmental policies: 9 Ibid Ibid Ibid Case 8/74 Dassonville [1974] ECR 837. In Dassonville, the Court of Justice said:, All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions. One expert on the Court of Justice has described the statement as remarkable for its breadth. It was implicit in the language used by the Court that it was the effect of a national measure rather than its form that counted. Moreover, by acknowledging that an indirect or potential effect on trade might be enough, the Court indicated that it was not necessary to adduce direct evidence of an alteration in the pattern of trade in order to establish an infringement of Article 28. Anthony Arnull, The European Union and its Court of Justice (2nd edn, Oxford EC Law Library, 2006), See note 6 above, 262.

4 Book Review 225 [T]he traditional black-and-white approach on which European competition policy and law were founded is becoming increasingly inappropriate. This approach assumed that it was up to public authorities to establish and pursue environmental policy by means of legislation and its application through prohibitions and permits, and up to the market to respond by operating as profitably as possible within these constraints. In this climate, competition policies which allowed only marginal room for environmental considerations were appropriate. However today, where the market is very much expected to act responsibly on its own account, environmental objectives should play a greater part in competition policy than is currently the case. 14 Chapter Eight is dedicated to substantive environmental law. The chapter begins with an explanation of the Environmental Action Programmes, followed by horizontal and sectoral legislation. The assessment of legislation on climate change 15 is nicely presented with the authors clearly explaining how the EU Emissions Trading Scheme, which the authors correctly characterise as the flagship instrument used by the EU to combat climate change, 16 will change beginning 1 January 2013 and the impact of those changes. 17 Notwithstanding the vast array of issues that the authors so capably cover, there are some enhancements that may be worth considering in the next edition (the publication of a book on a topic such as this, which changes and evolves quickly, simply marks the starting of the next edition). Some of these suggestions are ones that might be implemented by the authors. Other suggestions, however, are more fundamental to how information is needed and consumed in today s world. First, let us consider the ideas for the authors. The index is of quite limited value because of its brevity. In the absence of having a searchable version of the full text of a book, readers will refer to the index. Unfortunately, a slightly less than three-page index does not do justice to the many topics covered in the book. For example, despite the fact that enforcement of environmental legislation is an important topic, there is no index listing for enforcement. In addition, the book gives short attention to the work of the European Environment Agency and its many useful reports. Perhaps that could be expanded in a future edition. Finally, the relationship of energy policy to environmental policy is becoming ever more closely related. A more complete consideration of this relationship would be useful in future. On the other hand, there are some suggestions that go more to the heart of how information is used. In brief, all researchers want the most up-to-date and 14 Ibid Ibid Ibid Ibid

5 226 comprehensive information. Because of the well-earned reputations of Professors Jans and Vedder, who better to deliver it than them? However, the publishing challenge with the book model is that it cannot be easily updated without completely reprinting the book. And that s not very practical on a continual basis. Consequently, perhaps the publisher and the authors could consider supplementing the book with two online features: a blog, in which the authors would offer ongoing commentary about quickly developing issues; and an online supplementation service where the authors would provide analysis of key legal issues. Perhaps an example would be useful. The fourth edition is current to 1 September However, between that date and the end of 2011 (to say nothing about what will come in 2012 and beyond), at least two key events have taken place. First, on 19 December 2011 the European Commission published its Energy Roadmap 2050, 18 in which it sets out plans for cutting emissions by over 80% without disrupting energy supplies and competitiveness. 19 Secondly, on 21 December 2011, the Court of Justice of the European Union confirmed the validity of the directive that includes aviation activities in the emissions trading scheme. 20 While both of these events, and many more like them that will happen subsequent to the publication of the current edition, will hopefully be put into more context as part of a new edition, what a delight it would be to see these two eminent authors put them into context alongside their current edition. These suggestions are merely minor quibbles, however, in a book that is destined to be another must have for EU environmental practitioners and those who follow EU environmental law. It is broad in coverage, clear in description and analysis, and insightful in terms of the important issues at hand. Put simply, the fourth edition of European Environmental Law: After Lisbon is another tour de force produced by Professors Jans and Vedder. Don C Smith Editor Journal of Energy & Natural Resources Law dcsmith@law.du.edu 18 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Energy Roadmap 2050, COM (2011) 885/2, ec.europa.eu/energy/energy2020/roadmap/doc/com_2011_8852_en.pdf. 19 European Commission, Towards a low-carbon energy sector, 19 December 2011, 20 European Court of Justice Press Release No 139/11, The directive including aviation activities in the EU s emissions trading scheme is valid, 21 December 2011, curia.europa.eu/jcms/upload/docs/application/pdf/ /cp110139en.pdf; Case C-366/10, Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, 21 December 2011, document.jsf?text=&docid=117193&pageindex=0&doclang=en&mode=req&dir=&occ =first&part=1&cid=