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Treaty to make difference on Climate Change

16 May 2008

THE IMPLICATIONS of the Lisbon Treaty for climate change policy have become something of a hot topic in the run-up to the Irish referendum on the treaty, expected in early June.

The words "climate change" are mentioned in an EU treaty for the first time and an entirely new energy title has been added. Proponents argue that the EU's power and capacities to combat climate change would therefore be expanded significantly - Minister for the Environment and Green Party leader John Gormley has described climate change as "one of the most compelling reasons to vote Yes". Critics such as Libertas have charged that the treaty "will do little or nothing to address climate change".

This is far from an academic debate. Climate policy is fast becoming the most important policy area for the EU. The commission's radical January climate-change proposals will profoundly affect the way economic activity is organised and sustained in Ireland and across Europe. It is also set to influence the direction of international negotiations as a successor agreement to the Kyoto Protocol is sought.

Leading energy economist Dieter Helm has described the proposals as the most critical to emerge from the EU since European Monetary Union. If anything, he underplays their significance. It is, therefore, important to clarify what the treaty means for climate policy.

The first point to note is that objectives of the EU have been amended. Achieving "balanced and sustainable development" has been replaced with the much more forceful "it [ the EU] shall work for sustainable development . . . and a high level of protection and improvement in the quality of the environment" in Article 3(3) of the Treaty on European Union.

The specific parameters for climate change policy-making within the EU are set out in the Environmental Title of the Treaty on The Functioning of the European Union (TFEU). This title, it is true, is left largely unmodified, leaving the formal decision-making procedures and the institutional balance of power unchanged, albeit within the overall context of more streamlined decision-making across all policy areas.

Six significant new words have, however, been added to the title. Article 191(1) TFEU would commit the EU to "promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change". This reference is significant as it represents the first time the EU's rulebook has targeted climate change as an area of the utmost importance.

Although these words refer to the international dimension of climate policy, it should not be discounted as a possibility that an activist European Court of Justice could use this article, along with the overarching provision regarding environmental protection, to challenge member states' policy incompatible with "combating climate change", assuming cases are brought before its jurisdiction.

In the area of environmental protection, unexpected rulings have arisen, not least the criminalisation of environmental law.

It is the new Energy Title which may give rise to the most profound, though less direct, impact on climate change policy. Article 194 TFEU states that . . . "with regard for the need to preserve and improve the environment", union policy shall aim [among other things] to "promote energy efficiency and energy savings and the development of new and renewable forms of energy".

Given that the EU is already committed to a 20 per cent improvement in energy efficiency and a 20 per cent penetration of renewables into total energy consumption by 2020, it could be argued these are objectives that the EU is already pursuing.

The clear legal basis is, however, important. One of the main concerns expressed by several member states was the absence of a clear legal basis in the treaties for energy legislation.

It is not inconceivable that a member state could use this lack of clarity to object to binding targets. The clear legal basis could well prove invaluable were the political commitment to the pursuit of this objective to wane.
This applies even more so in the area of energy efficiency. The EU Energy Efficiency Action Plan, agreed in November 2006, requires member states to improve energy efficiency 20 per cent by 2020. Unlike the case with renewables, however, no legally binding agreements have been or will be entered into by member states. The legal protection provided by the treaty is therefore important.

One last amendment is worthy of mention. Article 218 of TFEU which states that the commission's new powers for negotiating international agreements, would extend to "nominating the union negotiator or head of the union's negotiating team". This would be a significant advance on the commission's current role and would enhance the EU's ability to present a coherent front at international negotiations.

In conclusion, although the words "climate change" only appear in the Lisbon Treaty once, there are several amendments which will influence internal and external climate-change policy in the EU. The current direction that the EU is taking is reinforced, clarified and given a sound legal basis.

Tackling climate change requires the support of European leaders and citizens. These amendments could prove crucial were the political climate to prove as mutable as the Earth's atmosphere.

As an independent forum, the Institute does not express any opinions of its own. The views expressed in the article are the sole responsibility of the author.

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