By Carlos Abreu Amorim (Professor of Administrative and Environmental Law, UMinho)

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European Climate Law – the point of non-return of environmental protection

There are a number of reasons for how significant the European Climate Law (ECL), the final text of which was adopted in May 2021 should be considered. It is not only because it is the first binding legal instrument to come from the European Green Deal (EGD). Not even because of its primary intention: to convert this environmental plan launched by the Commission of Ursula von der Leyen in December 2019 into a fundamental European plan of energy decarbonisation targets and mandatory commitments with the intention of transforming the generality of production processes on the path of climate neutrality.

Even more than the reasons mentioned in previous paragraph, the success of the ECL has now become a sine qua non test for the European Union’s integration project.

European integration has increasing economic, political, geostrategic, ambitions for social achievement and full rights for its citizens. A wide range of purposes and effective peace, happiness and welfare have been achieved like never before in history. Likewise, its path of undisputed success has also seen some setbacks in these and other areas. Nevertheless, more than ever, the scale of the climate emergency and the essential responses that the environmental quality of the planet today requires in terms of public policies clearly outweigh the limited unit of account provided by the unique action of States (even countries that are large in power, population and territory). If it was already a settled truth that there are no nations capable of competing or even subsisting on their own, the deterioration of the planet’s environmental status has raised the need for extended common projects in pursuing sustainable and efficient environmental public policies. Environmental protection is one of the areas of public policies where the natural shortcomings of actions carried out alone within the framework of the old logic of the Nation State are most noted and where the broad integration of these public policies is most necessary. Climate changes will not be able to be fought with success through reactive pipelines, targeted solutions or disunited strategies. Unilateral actions will also not succeed, not even the best designed ones. The urgency of climate responses implies firm resolutions, consistency in the ends, breadth and cross-cutting and supranational scope in public policies. Above all, it requires political choices with a degree of permanence that will only be possible if there is a political consensus and the sharing of these concerns by much of the public.

Only the European Union brings these characteristics together as an extended area of law and common existence. The United States of America, although now, with Joe Biden, having returned to reason with regard to environmental concerns, has not yet been able to demonstrate the political and social soundness of purposes that this task requires. Worse, the increase in the scale of environmental denialism does not seem to have been sharply mitigated by the defeat of Donald Trump.

The Asian space, with the exception of South Korea and Japan, seems to be only focused on economic results (despite China’s repeated but seemingly artifice promises). Central and South America continue to look forward to their development in schemes similar to those of the last century, and do not have the slightest firmness in political purposes in environmental and rule of law matters in many of its most representative nations.

Europe’s world-leading project to combat climate change, embodied in the EGD, was not the result of the purely conjuncture circumstances caused by the withdrawal of the United States of America from the Paris Agreement, nor, much less, by wishes for prominence on the world stage. The European environmental strategy has evolved over decades persevering in the same constant sense, perfected by scientific knowledge about the environmental deterioration of the globe and always supported by a public opinion. In fact, European public opinion has not yet seemed to waver in its concerns about the environmental emergency. The European Union has become a leader in efforts to implement the strategy of responsible environmental responses because only this wider area of freedom and well-being is truly equipped with the conviction needed to face the stimulus of transforming the circular economy, as well as the twin challenges of the environment and digitization that will shape the common way of existing as full citizens in this century.

However, from March 2020, when the ECL project was made public, until May 2021, when it was finally approved, things have changed markedly for both good and bad reasons. The COVID-19 pandemic has plagued the world for much longer than anticipated. Its effects on less robust economies, even in the European Union, are proving to be more serious than originally expected. On the other hand, Europe has revealed disparities between Member States in the soundness of the fight against the pandemic and the initial process of acquiring vaccines has shown dissonances and numbness at the top of the European Institutions. The boldness of the current Commission, its brand image until then, seemed to weaken against COVID-19 in the first half of 2021.

Still, environmental objectives have not faltered. Contrary to some initial and hasty conclusions, the Recovery Plan for Europe has as one of its foundations the implementation of the necessary changes in the economy to address environmental concerns (something that also applies, in variable degrees, to the national plans) that are present in the EGD strategy.  Similar and symmetrical concerns will also be included in the new Multiannual Financial Framework 2021-2027, the CAP (Common Agricultural Policy) and the various projects managed directly by the European Commission.

And it is in this broader context that we should look at the outcome of the May 2021 agreement from which the ECL emerges. Although we are forced to acknowledge that some modifications to the initial text should have been avoided (see our European Climate Law – Real Changes or Postponed future?, with Ana Cardoso, in publication at UNIO)  and the emergence of last-minute passive resistances, we cannot fail to conclude that the final outcome reached is important and notes another point of no return in the construction of environmental protection (it should be noted that the Portuguese presidency, aiming at not postponing the agreement on the final text at the last meeting in April, seems to have been forced to conduct the work with a logic of conclave, typical of the College of Cardinals, where the meeting does not end until a necessary result is obtained).

Now the ECL is a reality, its objectives, ideas and logics will have to be achieved by the Member States and will be an integral part of the European project and, we believe, also of the European milestones with which we will all be looking to the future. And without any chance of going back. If there are still forms of integration and policymaking processes of the European Institutions that continue to manifest an unwanted level of delays and bureaucracies in decision-making processes, if Europe sometimes does not seem to have the agility of other of its most direct competitors, the European brand will have to be fixed on its core values and the appropriate strategies to implement them. Among these, today more than ever, environmental protection is evidenced.

That is why we believe that if the European integration project does not find statesmen, policies and means capable of carrying out this plan, it may be itself to be called into question.

The cause of the environment, the EGD and the ECL do not place the European Union at any crossroads because the paths ahead do not mix or allow hesitation or deviation. The viability of the European project will depend on how it is able to realize the fundamental options it has taken as its own: the twin green and digital transitions that will shape Europe’s future. And from the example of Europe the rest of the world will not want to be left behind.

As it is mentioned in a recent work by Lia Montalti about these same concerns (Ci Salverà l’Europa? Un futuro da scrivere tra Recovery Fund e Green Deal europeu, 2021) quoting Spinnelli in the celebrated Manifesto di Ventotene: «La via da percorrere non è facile, né sicura. Ma de essere percorsa e lo sarà».

Pictures credits: Robot by ejaugsburg.