ucc law and the environment 2010 · • move to market based emission trading schemes ... •...

UCC Law and the Environment 2010Environmental Law & Economics

Margaret Austin22 April 2010

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Environmental Law & Economics

• Integrated climate change and energy agenda for EU

• Low carbon economy

• Market Based Instruments (MBIs) to achieve change

• Changing incentives for business and consumers

• Fiscal and environmental advantages of MBIs

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Environmental Law & Economics .../cont’d

• Change from “command and control” regime

• State regulation and control

• Move to market based emission trading schemes

• Soft instrument – ecolabelling, privatisation of services, voluntary

agreements

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• Commission Green Paper on MBI in 2007

• Commission Working Document 2007

• Commission Analysis of Replies on Green Paper 2009

• Danish Packaging Tax – reflects differences in environmental impacts

of materials

• More expensive, fails to produce better recycling results and causes

market distortions

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• MBI in Waste Management

• Suggestion of harmonised landfill tax – EU wide minimum rates

• Widely differing natural circumstances

• Cost and competitiveness issues

• For those categories with no alternative – C&D waste such a tax has

no steering effect and leads to possible flytipping

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• Flat landfill tax hinders mix of incentives and flexibility to divert from

landfill

• Economic costs and population densities differ across MS

• Higher taxes would be incentive for certain MS

• In other MS other instruments such as bans on capacity restrictions

• Specific national waste systems could be jeopardised by harmonisation

• EU framework already wide enough

• Allows discriminatory taxation affecting free movement of goods

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MBI and Biodiversity• Attaching a monetary value to environmental impacts and biodiversity

• German water industry, voluntary payments in form of bonuses for

resource protecting agriculture

• Biodiversity offsets – habitat banking

• Potentially increase the cost effectiveness of nature protection

measures

• Local compensation access in cities

• Cannot move ecosystems

• Definition of appropriate criteria and units by which habitat value can

be assessed and compared problematic

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Emission Trading Systems

• Example of a new instrument of environmental policy

• Origins of environmental law in nuisance, tort, criminal law

• State regulated systems for protection of environment:– Public participation– Judicial review

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Emission Trading Schemes …/cont’d

• Operators behaviour not dictated by law

• By what it can and it is willing to pay

• Environment a commodity?

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• Limited possibility for judicial review of decisions

• Generic allocation decisions

• Not individual decisions, not addressed to plant operators

• Criticised for failing to focus on environmental effectiveness

• However provides for gradual reduction of cap and incentivises

innovation

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• Shift from focus on compliance with limits

• Focus on functioning of allocation system

– equality, nondiscrimination

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Role of Law & Lawyers

• Changing role of state and law

• Different legal issues

• Economic law issues– Restraints on competition, free movement of goods and

services– Procurement, state aids

• Transparent, fair, systems

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Emissions Trading Scheme• Macro allocation

• Arcelor Atlantique et Lorraine & Others –v Premier Ministre, ECJ 2008

• Challenge to exclusion of aluminium & plastics production

• Discrimination justified but clear that court will not tolerate ad

infinitum

• Competition law principles

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Allocation through the Markets

• Operation of the market

• Role of law to ensure functioning of the market

• New Emissions Trading Directive: Focus on insider trading, unfair trading

• Concerns re losing sight of environmental objectives

• Requirement for “greening” of economic law

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Recent Irish Experience

• Nurendale Limited trading as Panda

Waste Services v. Dublin City Council &

Others

• Competition law issues

– consideration of environmental issues

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THANK YOU

MARGARET AUSTIN

22 April 2010

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UCC Law and the Environment 2010

Margaret Austin22 April 2010

ucc law and the environment 2010 · • move to market based emission trading schemes ... •...

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