Issue 2/2012

Incorporating International Environmental Legal Principles into Future Climate Change Instruments
Rowena Maguire
This article explores the role of international environmental legal principles and their role in future climate change instruments. The five international environmental legal principles explored in this context are: inter and intergenerational equity, the precautionary principle, common but differentiated responsibility, the polluter pays and principle and the principles of responsibility and prevention. Principles are used within regulatory frameworks to guide the interpretation and implementation of the obligations specified within the instrument. It is found that these principles provide a useful basis for the development of international adaptation and mitigation measures that are equitable and ethical in nature. This article argues that these principles must be drafted more strategically into international climate change instruments allowing them to serve as a foundational basis upon which more stringent and equitable binding duties and rights can be derived from. This article makes some recommendations as to the type of obligations that these principles could be used to inform in future climate instruments.
Does Auctioning Emission Rights Avoid State Aid? Empirical Evidence from Germany
Stefan E. Weishaar, Edwin Woerdman
This paper presents empirical evidence of a small but statistically highly significant windfall profit in the German spot auctions of allowances under the EU Emissions Trading System in the second trading phase. Auction prices lie with 7 and 8 Eurocents below the Leipzig Energy Exchange and the Paris Blue Next market price, respectively. Compared to the Initial Public Offerings literature the under-pricing effect is small. However, it does call into question the wide-spread belief that allowance auctioning eradicates all windfall profits. Moreover, it is examined if these windfall profits give rise to State aid concerns. We argue that auctions in the second and third trading phase pass the private investor test and thus do not constitute State aid, although selectivity could become problematic in the third trading phase. We conclude that the political problem of windfall profits for the energy sector may persist in the third trading phase.
Geoengineering a Future for Humankind: Some Technical and Ethical Considerations
Dr. Rafael Leal Arcas, Andrew Filis
The term ‚Äúgeoengineering‚ÄĚ relates to the various strategies and techniques aimed at containing and, in some cases, reversing the effects of anthropogenic and other forms of environmental degradation. These strategies and techniques range from the fairly innocuous to the highly scientifically and politically controversial. Given the transboundary effect of environmental degradation and the urgency that this creates, the concerted efforts of the international community are indispensable to usefully enlist whatever benefits geoengineering is capable of offering. However, serious obstacles stand in the way of the international community acting in unison. This paper seeks to outline the various contentious issues regarding geoengineering that arise in relation to its ethical, technological, political, and trade-related legal dimensions. Along with State actors, it is likely that this field of activity would be highly reliant on market mechanisms to deliver the technological solutions and capital investment that are necessary. Clear rules in relation to how these strategies and techniques ought to be governed are in urgent need. Rules should not be limited to the governance aspects, but should also provide for the commercial use of geoengineering.
The WTO, the National Security Exception and Climate Change
Felicity Deane
Article XX has been a valuable instrument to justify exceptions from the anti-discrimination provisions of the GATT 1994. In general, this Article is considered by experts to be the most likely defence for any climate change mitigation measure in breach GATT 1994 obligations. That assumption is not in dispute here; rather, this article considers the requirements of the Article XX exceptions, but also explores the conditions of the National Security exception contained in Article XXI. Although it is possible that this exception could be used for climate change mitigation measures, this paper argues that it is unlikely that the National Security exception could be legitimately applied in these circumstances without member agreement to the contrary.
Public Subsidies for CCS and EU State Aid Law: The Decisional Practice of the European Commission
Dr. Michele Giannino
Technologies for the capture, transport and storage of CO2 (CCS) are under examination as promising tools to cut greenhouse gas (GHG) emissions. Given its high cost, however, CCS deployment has failed to gain momentum, and financial support from public authorities is potentially needed before the private sector can fully engage in this abatement technology. Under European Union (EU) law, such public support may constitute State aid and thus be subject to the stringent EU regime on State aid. This article examines the European Commission’s approach to assessing the compatibility of publicly-funded support for CCS projects with EU State aid law, looking at the limited case law available in this area as well as at the general legal framework used by the Commission when assessing aid for CCS projects.


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