Saving the world’s forests: What’s (international) law got to do with it?

Eugenia Recio
PhD Researcher


Natural forests, particularly in tropical regions, are essential for life. They are pools of biodiversity, contribute to combating climate change by storing carbon, and sustain the livelihoods of many indigenous and local communities across the world.

In the past weeks, however, worrying images of record-breaking fires destroying forests in the Amazon, Asia, the Arctic, Africa and other parts of the world have underlined that the world’s forests are still at major risk. These events are a blow to international efforts to counteract critical biodiversity loss and climate change, and raise vexed questions about the role of international law in addressing global forest loss.

To date, international law has been of limited use in terms of protecting the world’s forests. Heavily forested countries, including Brazil, have seen proposals to adopt a global treaty on forests as a threat to their national sovereignty and to their ability to take advantage of their forests for their economic development. While the role of states is changing with globalization and global environmental problems, sovereignty remains the cornerstone of international law and significantly limits the ability of other countries to intervene in countries’ decisions affecting the status of their natural resources. Indeed, the recognition by the UN of countries’ permanent sovereignty over natural resources in 1962 was a major achievement for developing countries in the context of decolonization. However, this principle has always had a tense relationship with international environmental law and the need to safeguard the planet and its natural resources for present and future generations.

As such, the need to take urgent action to halt deforestation has been recognized by the international community at various instances. In 2017, the UN Strategic Plan for Forests 2017-2030 (UNSPF) called for reversing the loss of forest cover and increasing forest areas by 3% worldwide by 2030. Under the Sustainable Development Goals, a global target on halting deforestation by 2020 was adopted. In 2014, governments along with major companies such as Unilever and Nestle and other organizations adopted the New York Declaration on Forests, aimed at halving the loss of natural forests by 2020, and ending it by 2030. However, by 2017, the average annual rate of natural forest loss was 42% higher than in the previous decade. Signatory companies and states are clearly failing to meet their undertakings.

Overall, several instruments have been adopted at the margins of formal international law. The Forest Instrument, for example, is a non-legally binding instrument that has helped countries adopt national forest programmes.

The most detailed international rules on forest protection have been adopted under the UN climate regime. Notably, under the 2015 Paris Agreement, some countries have promised to reduce deforestation in their Nationally Determined Contributions (NDCs). However, there is no obvious legal remedy that could be used to ensure that countries implement their pledges.

In addition, a high-profile scheme known as REDD+, has been created under the UN climate regime with the objective of reducing deforestation and protecting the carbon stored in natural forests in developing countries. REDD+ has led to new financing initiatives substantially increasing the funding available for forest protection. Yet REDD+ implementation is completely voluntary. Furthermore, REDD+ rules favour results-based payments, meaning that countries first need to act on REDD+ before being compensated based on emission reductions. In other words, REDD+ countries do not take on obligations to reduce forest emissions or to maintain the results achieved in forest protection.


Home to the Amazon rainforest, Brazil was the regional champion in curbing deforestation between 2004 and 2012. Due to REDD+, the country has received more than US$ 1.2 billion from Norway and more than US$ 68 million from Germany in the Brazilian Amazon Fund since 2008. The Green Climate Fund, created under the UN climate regime, further approved a compensation of US$ 18.8 million for Brazil’s achievements in forest protection and emission reductions in 2014/2015.

However, the recent turn in environmental politics in Brazil following last year’s presidential election has put at stake the Amazon Fund and the funding available for protecting the Amazon rainforest. Together with Brazil’s new policies to promote rural expansion, this has resulted in a significant increase in human-induced forest fires and deforestation. It has been estimated that fires in the Amazonia have increased by 82% compared to the same period in 2018.  As a result, bilateral REDD+ donors have decided to freeze their funding to Brazil.


More recently, seven Amazonian countries, including Brazil, gathered to discuss the critical situation in the Amazon. They adopted the Leticia Agreement, including stipulations to cooperate jointly in addressing disasters. But the new agreement seems to be far from a solution to the fires because it contains only principles instead of prescribing specific actions. It is therefore difficult to expect that the Leticia Agreement will be more successful than the failed Amazonian Cooperation Treaty Organization (OTCA) adopted in 1978. The Agreement seems to rather respond to the international pressure to address the fires by reaffirming, twice, the sovereign rights of Amazon countries over their natural resources and territories.

These developments call into question the effectiveness of international non-legally binding instruments in addressing deforestation. Furthermore, they raise the question whether international financial support, such as through REDD+, to protect forests should involve obligations to maintain the results achieved.

The recent developments also raise questions about the role of international law in other ways. Some areas of international law, such as trade law, promote extensive agriculture and cattle ranching, which are the main drivers of developing countries’ deforestation. In other words, trade agreements tend to legitimize and support the very same activities that cause deforestation in the first place and that environmental soft law instruments seek to curtail. At the same time, in the case of Brazil, international trade agreements could also offer a vehicle to support forest protection.

Notably, a free trade agreement was recently signed between the EU and MERCOSUR - which includes Paraguay, Argentina, Uruguay and Brazil - after 20 years of negotiations. The EU-MERCOSUR Trade Agreement includes an environmental chapter and has been identified by many as potential weapon in the fight to save the Amazon. The Agreement requires Parties to respect the Paris Agreement where Brazil has pledged to ‘zero illegal deforestation by 2030’ in the Brazilian Amazon, and restore ‘12 million hectares of forests by 2030’ and ‘enhanc[e] sustainable native forest management systems [to curb] illegal and unsustainable practices’. As the EU-MERCOSUR Trade Agreement is yet to enter into force, some EU Member States are using it to generate political pressure, threatening to block the agreement’s ratification or ban imports of agricultural products, such as soy, from Brazil to reduce incentives for the clearing of the Amazon forest.

In practice, whether and to what extent this and other environmental provisions in the EU-MERCOSUR Trade Agreement will provide an adequately strong legal or political weapon for the EU to force MERCOSUR countries to comply with their NDCs under the Paris Agreement, remains to be seen. What is clear, however, is the urgent need to further integrate the objective of forest protection into other areas of international law.

While environmental objectives should not be used as a colonialist pretext to intervene in developing countries’ internal affairs, the depth of the current environmental crisis should lead to profound questions being asked concerning the fundamental premises of international law.

For example, lawyers and policymakers should rethink the concept of liability of states and companies that take domestic actions with important global consequences. The law should also be used by policymakers to help transform the conditions in which commodities are traded and the way in which cooperative schemes, such as REDD+, are implemented. Sustainable land management practices and more sustainable consumption patterns can also be further supported by legal norms, including by facilitating changes in dietary choices, as recommended by the Intergovernmental Panel on Climate Change in its recent report on climate change and land.

In other words, these developments are an urgent wake-up call for lawyers and policymakers in different fields to see the forest through the trees. Law should be put at the service of accelerating the transition to a new reality in which the business of protecting forests is economically, politically and socially promoted.

Opinion 1/17 - the Investment Court System receives green light from the ECJ. But does it protect countries' right to regulate mining projects?





Pekka Niemelä, LL.D.
Post-doc, ClimaSlow-project



In May 2019, the European Court of Justice (ECJ) issued Opinion 1/17 concerning the relationship between EU law and the so called investment protection rules of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada. CETA's investment protection rules seek to protect private investments made by Canadian and EU investors in the territory of the other party. Their central aspect is investor-state dispute settlement (ISDS), which allows investors to bring claims against, and seek compensation from, the state where they have invested. In addition to the CETA, ISDS has been included in more than 2 000 investment treaties, and it has been used in a number of high-profile cases by investors to challenge what many have perceived as legitimate public interest measures, such as Germany's decision to phase-out nuclear power.[1] During CETA negotiations, a public campaign was led by NGOs, describing ISDS as putting 'corporate profit before human rights and the environment'  and as being undemocratic and biased towards business interests.[2] Similarly, it was argued that the mere threat of ISDS risks compelling states to abstain from public interest regulation – a phenomenon known as 'regulatory chill'.

The campaign succeeded in that the EU Commission amended its position, and rejected the inclusion of ISDS rules in CETA. The Commission replaced the much-criticized ad hoc arbitral tribunals and private arbitrators with a permanent investment court consisting of tenured judges. The Commission also introduced new investment protection rules, and, taken together, these changes were meant to ensure that investors are no longer able to challenge legitimate public interest measures.

Opinion 1/17 by the ECJ dealt, inter alia, with the question of whether CETA's reformed investment rules comply with certain fundamental principles of EU law, such as its autonomy. In a nutshell, the Court held that CETA's investment chapter is fully compatible with EU law. The purpose of this blog post is to challenge the contention that CETA's investment chapter fully guarantees the protection of public interest measures from challenges by investors.


CETA and the Right to Regulate

According to CETA Article 8.9, the parties have a "right to regulate within their territories to achieve legitimate policy objectives.” CETA’s investment protection rules are also less investor-friendly than the standard ISDS rules in that they define more stringently the types of treatment that constitute a breach of the substantive investment protection rules. For example, CETA Article 8.10.2 provides that a treatment breaches the fair and equitable treatment standard only if it constitutes "denial of justice" or "fundamental breach of due process" or "manifest arbitrariness". The "right to regulate" clause and the new protection rules were at the heart of Opinion 1/17, as the ECJ held that they guarantee that CETA "tribunals have no jurisdiction" to question democratically made decisions concerning the level of protection of public interests such as protection of the environment and public health. This would imply that when the EU member states and Canada adopt measures protecting these and other public interests, investors could not seek compensation under the CETA. This, however, most certainly is not the case.

Firstly, investment treaties have never prohibited states from regulating in the public interest, and in practice ISDS tribunals have acknowledged that states enjoy wide discretion in this regard. In most cases, the real question has been whether a measure genuinely served the purported public interest or whether it was adopted e.g. for political reasons and whether the measure was proportionate in relation to the protected interest or whether less intrusive regulation could have achieved the same goal. While CETA's references to the "right to regulate" will undoubtedly guide the interpretation of the treaty’s investment protection rules, it seems obvious that there will nevertheless be situations where an investor will consider that a public interest measure constitutes "manifest arbitrariness" or that the process through which the measure was adopted entails a "fundamental breach of due process." Indeed, most investment disputes are based on contested factual circumstances that are open to varied and opposing interpretations. What is a "fundamental breach" can only be assessed against some factual record, and many times reasonable people (including competent lawyers) will disagree whether the required threshold is reached. The point is not to say that CETA's reformed rules are useless in protecting the public interest - they do diminish the tribunals' interpretative leeway. At the same time, however, the CJEU’s take on the relationship between public interests and CETA's investment chapter is unrealistic in assuming that 'public interests' are clearly definable and universally shared by domestic constituencies, rather than contested notions competing with other public and private interests in legislative and regulatory processes. In sum, CETA tribunals will not decline jurisdiction on the ground that a measure has been adopted with the objective of protecting a public interest, even if that public interest will be at the heart of the investment dispute and legal analysis. Indeed, most, if not all, EU and domestic regulations serve some public interest, and it is the task of CETA tribunals to assess whether the arguments about the measure's purpose hold water and whether the measure complies with the CETA’s investment protection rules.


CETA and Mining in Finland

One question that has received attention in the context of CETA and Finland is whether Canadian mining companies could use CETA's investment protection rules to seek compensation with respect to a mining-related regulation that affects their investments. Large-scale mining entails various ecological risks, so situations may well arise where regulators need to interfere with a mine's operation when something unexpected happens or when assumptions concerning the mine's environmental impact turn out to be too optimistic. While the permitting process for mining in Finland is governed by a number of laws, those laws do not dictate, for example, what should be done and who should bear the costs when a mine's waste management fails to function as anticipated. These are difficult questions to which the applicable legal standards provide no clear answers. Should the mine's operations be stopped? Who should pay for cleaning up the pollution and compensate the attendant damages?

When such questions are addressed in negotiations between the mining company and public authorities, the bargaining will effectively take place in the shadow of law. The possibility of bringing a claim against the state under an investment treaty adds leverage to the investor's negotiating position for at least three reasons. First, investor-state disputes may carry a high price tag and the costs are paid from state budgets,[3] a picture that most politicians dislike, which increases the likelihood of settlement. Second, the uncertainties that relate to an underdeveloped area of law such as international investment law also create an incentive to settle, as the outcome of cases is often entirely uncertain. Even if the CETA seeks to rein in investor claims, it leaves much room for non-frivolous claims whose outcome is difficult to predict in the absence of relevant case law. Third, there is a widely shared perception among the political class that investor-state disputes damage a country's reputation in the eyes of potential investors, and this may again tempt states to settle the dispute.



There is an ongoing discussion in Finland on the ways in which the Mining Act 621/2011 (and other laws relevant to mining projects) should be reformed so as to ensure that the impact of mining remains at an ecologically tolerable level. Whether or not such reforms are adopted, they cannot fully eliminate the possibility of mining-related disputes under CETA. While claims related to general, non-discriminatory legislative changes have little chance of success under CETA's investment protection rules, the many uncertainties that relate to industrial mining may well create situations where regulators struggle to find a balance between the diverging economic and environmental interests, with the affected investors relying on CETA's rules so as to take the dispute to an institutional context where investment protection remains a central premise despite the references to the right to regulate. 

[1] Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12.

[2] See Pia Eberhardt and Cecilia Olivet, Profiting from Injustice (CEO, 2012), p. 7

[3] Under CETA's investment chapter, the main rule is that the costs of the proceedings are borne by the losing party (see Art. 8.39.5). A 2014 study found that in ISDS cases where information on costs was available, the average amount for claimants was around US$ 4,437,000 and for respondents US$ 4,559,000, excluding arbitrator and administrative fees. The same study also found that average amount claimed in cases where the investor was succesful was around US$ 166 million and the median amount of damages awarded to investors around US$ 10.5 million. See Matthew Hodgson, ‘Counting the Costs of Investment Treaty Arbitration’, Global Arbitration Review (24 March, 2014),

Exploring the limits of EU’s unbelievable behaviour on Nord Stream 2

Kim Talus and Leigh Hancher

In a letter dated 12 April 2019, Nord Stream 2 AG, a Swiss company owned by Russian Gazprom, informed the European Union (EU) that it is considering initiating investment dispute proceedings against the EU under the Energy Charter Treaty (ECT). 

In the notification, the investor indicated its wish to explore opportunities for an amicable settlement as provided for in Article 26(1) of the ECT – so that the parties explain their positions, negotiate and attempt to avoid a full-fledged investment dispute.  On expiry of the mandatory three-month period for negotiations, the investor can initiate a claim against the EU.  If this step is taken it would be the first time that a foreign investor has initiated an investment dispute against the EU itself as a party to the ECT.

This letter does not come as a surprise to those who have been following the ongoing Nord Stream 2 case. The notification makes reference to discriminatory treatment of Nord Stream 2 as an investment under the ECT. In addition, it would appear that the treatment of Nord Stream 2 by the EU and its Commission violates the fair and equitable treatment standard – a cornerstone of investor protection under the ECT. This standard seeks to ensure stable and predictable investment conditions, which includes protection of legitimate expectations and protection from retroactive changes to laws. 

The triggering event for a potential ECT claim is a new amendment to the EU Gas Market Directive of 2009.  This amendment extends the applicability of the EU gas market rules to external or ‘import’  pipelines that bring natural gas into the EU. Under the new rules, the applicability of the Gas Market Directive and all the other instruments of EU energy law, including network codes for gas, is extended to the territorial sea of the Member State where the first interconnection point is located. In practice this means that EU energy law applies to the Nord Stream 2 gas pipeline from the moment it enters German territorial waters. This will have negative economic consequences for the investor.  

Although the principle of extending the EU gas market rules to import pipelines may not in itself be discriminatory,  the terms of the legislative amendment appear to constitute unfair and unequitable treatment under the ECT. The amendment is drafted in such a way that all existing pipelines can enjoy a derogation from EU gas market rules under the new Article 49a of the Gas Market Directive. This derogation is, however, only available for pipelines that are ‘completed before the date of entry into force of this Directive’. The discriminatory treatment of Nord Stream 2 follows from the fact that it is the only import pipeline where the final investment decision has been made and significant capital committed, and so cannot benefit from the derogation.  

This is not an accidental outcome. It has been clear from an early stage that the only reason for the amendment to the current gas market rules is to target the Nord Stream 2 project. The various positions taken by EU and its Commission have been highly controversial. First, the Commission claimed that EU energy law already applied to offshore pipelines such as Nord Stream 2 even although it had never applied the gas market rules to such pipelines – including Nord Stream1. Once this claim was refuted by its own legal services, the Commission maintained that an intergovernmental agreement between EU and Russia was a legal necessity for the construction of Nord Stream 2, and the EU had the exclusive competence to draw this up.  This time the Council legal service shot down these claims and as a reaction, the Commission proposed the urgent enactment of the amendment to the EU Gas Market Directive of 2009. It is no surprise that the outcome is that these new rules are retrospectively applied to one single project: Nord Stream 2. 

A clear intention to discriminate against Nord Stream 2  goes a long way towards explaining why projects involving coal, the dirtiest fossil fuel, are protected from  negative economic consequences arising from the new capacity mechanism rules introduced in the Electricity Market Regulation 2019.  Commitments or contracts for coal fired capacity signed before the entry into force of the Directive are ‘grandfathered’. However, the new gas market rules apply to projects that have not been completed, irrespective of the date at which the final investment decision was made. The objective in both sets of rules is to protect investments but with important differences: for coal, ongoing arrangements and investments are covered by a derogation; while for gas, ongoing investments are not. Arguably, the timing of the final investment decision would have been just as a fair and practical cut-off point for gas pipelines. 

If the case continues beyond the current negotiations, it will be another important precedent for EU energy policy. The EU Energy Package case initiated by Russia in the World Trade Organization context raised certain concerns over discrimination against Russian natural gas. Given the peculiar treatment of Nord Stream 2 by the EU, such a claim would necessarily also pose questions as to the EU’s adherence to the rule of law.

Kim Talus, James McCulloch Chair in Energy Law and Director, Tulane Center for Energy Law, Tulane Law School; Professor of European Energy Law, UEF Law School; Professor of Energy Law, University of Helsinki. The author has provided legal advice to Nord Stream 2 AG.

Leigh Hancher, Professor of European Law, Tilburg; Part time Professor of EU Energy Law, Florence School of Regulation, European University Institute

This article was first published in (on 29.5.2019)

Governing the Tipping Point: Global Chemicals and Waste Law at the Dawn of 2020


Dr. Sabaa Ahmad Khan

Senior Researcher, Center for Climate Change, Energy and Environmental Law, University of Eastern Finland


Chemicals are the fundamental building blocks of the contemporary world, from a molecular to global level. Emergence of a chemicals market was one of the massive outgrowths, or aftermaths, of World War II. In the 1950s plastics began to enter the consumer market, driven by expansive marketing campaigns. Companies like Monsanto and Penn Salt developed full-page ads in magazines such as Time and Life, swaying consumers into the positive aspects of the chemicals industry. From doing laundry, to feeding children, to cleaning bathrooms and providing animal feed, the ease and comfort that the chemicals industry would bring to households was portrayed as boundless, futuristic. 

1947 Penn Salt Ad in Time Magazine, 1956 Monsanto Ad in Life Magazine

Today, the ubiquity of electronic waste pollution, abundant plastic debris in oceans, and chemically-polluted air in almost all regions of the world signal to us that our current global systems of production and consumption are rapidly deteriorating the ecosystem and human health; we are deep in the language of tipping points. As production systems have globalized, the transboundary flows of hazardous substances, materials and wastes that fuel our agricultural, pharmaceutical and manufacturing industries have become more difficult to map. In fact, many multinational firms producing everyday commodities are unable to trace their supply chains through to the core. Multiple levels of subcontracting cutting across several continents combined with legal protections over trade secrets make it difficult to know with certainty what exactly the commodities in expansive global consumption are made of, where they originated and what hazards they contain. International scientific bodies have often reminded us of how much we do not know about the chemicals we have come to rely on in every-day human life. From packaging in school and commercial cafeterias in every part of the world, to the seeds we feed livestock, humanity is entwined with toxic substances in ways we have yet to understand. Scientifically, at the very least, we know from observing the dispersion and transboundary flow of chemicals in physical space, that many of our chemical uses are detrimental to humans and the environment. 


It has become apparent that we are drifting farther away from fulfilling the global goal for chemicals and waste management established under Agenda 21 and crystallized in the Johannesburg Implementation Plan, that is, "to achieve, by 2020, that chemicals are used and produced in ways that lead to the minimization of significant adverse effects on human health and the environment."  At the global level, a series of international chemicals and waste treaties have been adopted to protect human health and the environment from the global circulation of toxics, yet their coverage is narrow in scope and their controls are sporadic, limited to specific points of the chemical lifecycle. To fulfill the governance gaps of the international chemicals regime, the Strategic Approach to International Chemicals Management was adopted in 2006, operationalizing the 2020 goal through a voluntary and multistakeholder instrument, consisting of a series of overarching policy objectives and a Global Action Plan for implementation. Even with this progressive development of global law on chemicals and waste, chemical pollution remains a relentlessly rising planetary phenomenon that has proven impossible to address cogently under the existing cluster of international environmental agreements devised to regulate global flows of hazardous chemicals and wastes. In the complex system of global value chains and production networks, the attribution of responsibility and accountability for the toxic effects of chemicals and wastes on human and ecosystem health remain loosely defined and often impossible to allocate. 


On the eve of the next Conference of the Parties of the chemicals and waste treaties, and in the full thrust of negotiations towards a post-2020 global cooperative framework for chemicals and waste management, our imminent failure to achieve the longstanding 2020 goal provides anopportunity to revisit our collective vision and expectations of global chemicals and waste governance. More than ever, there is a pressing need to interrogate the further development of our body of international law on chemicals and waste from a Weeramantrian perspective, that is to say, with a particular emphasis on its ‘wisdom of the past’ and ‘attunement to the future.’ 


Can the global momentum over climate change invigorate us towards bolder commitments in eliminating the toxic, ubiquitous effects of chemicals and wastes, or towards a vigorous re-imagining of the philosophy of technology and paradigm of progress that underlies this field of international law? A first step in this regard may be to think about how we perceive the issue. While 'chemicals and wastes' have generally been considered an area for scientific specialists and a matter of technocratic management, in actuality they subsume almost all material goods that contemporary society has come to rely on. The toxic chemicals we face do not stand alone, they are embodied in products and in the global flow of these products as they travel through the phases of manufacturing, use, international trade, disposal and recycling. The legal visibility that is required to effectively protect human health and the environment from the toxic hazards  of chemicals and wastes must cut across entire global chains of production, consumption and reproduction. Moreover, the assignation of responsibility and accountability for how we produce, consume and dispose of commodities needs to spread across all stakeholders and across all continents. 


As governments, international organizations, industry actors and civil society groups convene over the next months to renew a collective vision for chemicals and wastes, the widespread human rights violations and rampant environmental destruction caused by chemical and waste pollution across the globe demand that they seriously reflect upon the international approach we have taken thus far, and consider further whether the toxic tipping points we face require a new lens, one that demands profound actions for transparency, responsibility and accountability across global commodity chains, and that speaks to government and society inclusively. The success of our efforts towards soundly managing chemicals and waste beyond 2020 will depend largely on how we raise global awareness of the human rights and ecological impacts of chemicals-based value chains, and of the transboundary causes and consequences of chemical pollution. Above all, there is a need to incite governments and society to care about chemicals from the molecular to global level, and to demand that responsibility and accountability for toxic substances be assumed across all globalized production systems and recycling chains, across all borders.A common-sense step that can be taken immediately is for countries that have banned the use of certain chemicals in their own jurisdictions to concomitantly prohibit within their jurisdictions the production of those chemicals for export. 


Given the continuous worsening of chemical pollution worldwide, a deeper interrogation of the global legal regime for chemicals and waste management is urgently required. In particular, understanding international chemicals and waste law from an environmental justice perspective, meaning, from the point of view of bridging ideas of law together with an understanding of the latter’s concrete impacts on space, equity and environmental and human health, is critical in order to bring an end to the historical, persistent, and wildly disproportionate impact of toxic chemical exposures experienced by the world’s most vulnerable workers, marginalized populations and fragile ecosystems.

Delivery destinations and changing markets for liquefied natural gas


Liquefied natural gas (LNG) markets are going through a rapid and fundamental change. Where the previous era for LNG deliveries was marked by point to point sales from an exporting country to an end-destination importing country, todays LNG world looks very different. 

The number of end-destination buyers and sellers has grown significantly: For long-term contract deliveries the markets have moved from six importing countries and three exporting countries in 1971 to 11 importing countries and 12 exporting countries in 2000 and in 2017 markets had reached 40 importing countries and 19 exporting countries. 

The growth of spot market players have grown in a similar fashion: from eight importers and six exporting countries in 2000 to 33 end markets and 29 exporting countries (including re-exports) in 2017. The market share of non-long-term deliveries (meaning spot and short-term contract deliveries) was 30% in 2017. While new long-term contracts are still signed, for new projects in particular, this share of non-long-term deliveries is rising. 

New types of market players have also emerged. In addition to the traditional sellers and end-destination buyers, various types of portfolio players have emerged. Also re-exportation has become more economical. Both the growth of trading parties as well as non-user sellers have contributed to the growing liquidity of the markets. 

These changes in the markets have put pressure on the traditional LNG sale and purchase agreements. Some of the changes seen in the markets include the agreements’ shortening duration; more frequent price revisions; moves away from oil price indexation of natural gas prices and increasing flexibility. 

These changes are primarily being driven by markets but for some are also influenced by  regulatory push. This includes the move away from destination clauses and other diversion clauses as well as profit-sharing mechanisms.  In this respect, the efforts by European Commission and Japanese Fair Trade Commission are particularly important. 

EU competition law investigations by European Commission focusing on various pipeline and LNG contracts and practices in early and mid-2000’s, and the more recent antitrust report by the Japan Fair Trade Commission (“JFTC”) in 2017 focusing on international LNG trade have reached partially similar conclusions. While the concerns of EU Commission were primarily related to liquidity of the EU internal gas markets and while the JFTC focused on free trade in LNG and liquidity of international LNG markets, it is possible to identify common elements and common concerns. 

In order to provide clarity and certainty for LNG market participants, a working group supported in the context of an ongoing projectinitiated by European Commission and Japanese Ministry for Economy, Trade and Industry, created a model diversion clause. The present author drafted the model clause, assisted by the other members of the expert group. The group believes that the model clause can meet the antitrust requirements of both Japan and European Union. 

The model clause presented and explained in this document is free for contractual parties to adapt as a part of their LNG SPA. While I and other members of the working group believe that this clause complies with antitrust requirements of EU and Japan today, care must be taken to ensure that future developments do not change the interpretation of these laws in a way that has an impact on this compliance. 

The model diversion clause and guidance note to accompany the model clause are available at:

An academic article explaining the background is available at:


Kim Talus 

Professor and McCulloch Chair in Energy Law
Director of Tulane Center for Energy Law
Tulane University

Professor of European Economic and Energy Law
UEF Law School
Co-Director for Center for Climate, Energy and Environmental Law
University of Eastern Finland (UEF)

Professor of Energy Law
University of Helsinki

Editor-in-Chief for OGEL (


LNG: Developing the Demand

Andrei Belyi

The International Maritime Organization (IMO) has introduced positive changes for LNG by cutting the amount of sulphur in marine transport from 2020. LNG will be the most logical fuel to replace high-sulphur fuel oil (HSFO): it will cut carbon dioxide emissions significantly.

From now on, the question is about commitment and compliance to these norms. The main caveat here is that ships are required to use lower sulphur fuels but refiners are not restrained by any regulation to supply heavier-but-cheaper solutions. Hence, ships will still have access to heavier fuels.

Adding to that, even though we have observed a number of ferry operators who have declared a shift to LNG, bunkering in the Mediterranean and Baltics appears to be moving more slowly than initially expected. Particularly, shipping and bunkering companies are concerned about LNG supplies and prices, whereas LNG suppliers would like to be sure of the mid-term demand for marine transport. There needs to be a faster rate of growth in the maritime transport sector in order to attract competitive LNG supplies. However, analysts remain divided about such prospects. A study recently produced by the Oxford Institute of Energy Studies points out that overall LNG demand in the maritime sector should not be overestimated. The shipping industry is not really rushing to switch over to LNG, even though we hear some announcements about companies switching to LNG for short-distance shipping: for example, liners in the Gulf of Finland.

Overall, I would believe that a further regulatory and legislative support at both national and European level might be needed to ensure the proper development of LNG markets, supplies and bunkering. Recently, Spain introduced a law obliging ship-owners to switch away from HSFO: it could be the right way to do for the other countries as well.

Adding to that, questions persist about methane. Methane actually constitutes a significant greenhouse gas emission produced during liquefaction and regasification, although the primary focus is often on the dioxide emitted by the final consumers – such as shipping companies. In this respect, a debate about “greening” the LNG will increasingly gain a place within policy communities. Mixing LNG with biogas-based liquefied gas would become one of the tangible solutions to the issue. Once again, technological mechanisms exist but a without the right regulations this development will be slow to come.

LNG shipment via containers has been increasing in recent years. Most innovative T75 Containers can for example be also used for short-term storage as the gas remains a liquid for 110 days and they can be used to ship LNG to filling stations. Rising use of compressed and liquefied natural gas in road transport certainly contributes to small-scale shipment of gas by containers.

It might be worth noting that LNG and CNG demand in inland transport seems to grow despite all the competition from electric vehicles. Across northern Europe, companies are increasingly investing in gas filling stations: in this regard, the latest news came from Gasum, announcing a plan to install up to 50 filling stations across Finland.

This text is an excerpt from Natural Gas World (

It’s the Politics, Stupid! How to Make Fossil Fuel Subsidy Reform Happen


Harro van Asselt  & Jakob Skovgaard

Harro van Asselt, PhD (VU University Amsterdam, cum laude), is a Professor of Climate Law and Policy with the University of Eastern Finland Law School, and a Senior Research Fellow with the Stockholm Environment Institute.


Fossil fuel subsidies strain public budgets and contribute to climate change and local air pollution. But despite widespread agreement about the benefits of reforming fossil fuel subsidies, repeated international commitments to eliminate them, and valiant reform efforts by some countries, they persist.

The scale of global subsidies is vast. For 2015, the International Monetary Fund (IMF) puts them at US$5.3 trillion. The International Energy Agency (IEA), following a more conservative definition of subsidies, estimates them at US$325 billion, still a substantial amount. Their sheer size means that reforming subsidies can lead to significant savings for the public purse.

Subsidy reform can also create important environmental and social benefits. A conservative estimate finds that a quarter of the Paris Agreement pledges can be met by phasing out fossil fuel subsidies. Moreover the re-purposing of fossil fuel subsidies, which are often socially regressive because they benefit the richer segments of society, can help the poor while reducing local air pollution and promoting renewable energy. Fossil fuel reform can thus contribute to achieving multiple Sustainable Development Goals (SDGs).

While some countries, such as India and Mexico, have undertaken successful reform, subsidies in other countries, such as Nigeria, have been rolled back due to public protests. Many other countries have not even attempted reform at all. Internationally, although SDG 12.c (on fossil fuel subsidy reform) and forums such as the G20 and the Asia-Pacific Economic Cooperation (APEC) have begun to offer platforms to address fossil fuel subsidies, other institutions such the UN Framework Convention on Climate Change (UNFCCC) and the World Trade Organization (WTO) have been conspicuously inactive.

What explains this discrepancy? In our new open access edited book titled ‘The Politics of Fossil Fuel Subsidies and Their Reform,’ we highlight the need to better understand the political dimensions of fossil fuel subsidies. Although economic factors such as fluctuating fossil fuel prices undoubtedly matter, they alone cannot explain why some countries have put in place fossil fuel subsidies, why they are maintained, and why in some cases they are successfully reformed. The prospects for fossil fuel subsidy reform are political, and the relevant actors, interests and cultures that inform these dynamics differ from country to country.

By studying fossil fuel subsidies as political phenomena, we can shed light on the factors that make reform work and identify how international institutions can help promote reform.

  • First, our work underscores the importance of clearly defining fossil fuel subsidies. Internationally, the IMF estimate of global subsidies is 16 times higher than that of the IEA because the Fund includes social and environmental externalities in its definition. From Trinidad and Tobago to the United Kingdom, the confusion about defining fossil fuel subsidies has allowed actors opposed to reform to argue that their country does not subsidize the consumption or production of fossil fuels.
  • Second, an analysis of the political dynamics reveals the role of wider power structures in enabling fossil fuel subsidy lock-in. In South Africa, for instance, subsidies to coal production have remained in place in the post-apartheid era due to their benefits for the powerful ‘minerals-energy complex’ of government, state-owned enterprises and industry.
  • Third, a focus on the politics of fossil fuel subsidies points to the critical role of framing. While, internationally, fossil fuel subsidies are considered primarily an environmental problem, national governments tend to implement fossil fuel subsidy reform for economic and fiscal reasons. Thus, if international institutions target fossil fuel subsidies solely as an environmental problem, they may miss many opportunities to mobilize domestic actors in favor of reform.
  • Fourth, timing is crucial. A better understanding of the politics can allow reform advocates to better identify political windows of opportunity. For example, in Egypt, President El-Sisi used the ‘honeymoon period’ following his 2014 landslide election to push through reform.

SDG 12.c has placed fossil fuel subsidy reform firmly on the global agenda, while rightly linking this commitment to broader environmental, development, economic and health considerations. To translate this imperative into action we need to improve our understanding of the political barriers to reform – and how they can be overcome.


This article was first published on the SDG Knowledge Hub:

Environmental Cooperation under CETA: Bold New Linkages, Bolder Risks


Dr Sabaa A. Khan is Senior Researcher at CCEEL / UEF Law School. Her areas of expertise include regional trade agreements and she serves on the Joint Public Advisory Committee of the Commission for Environmental Cooperation, under an appointment by Canada’s Minister of Environment and Climate Change. 

Dr Kati Kulovesi is Co-Director of CCEEL and Professor of International Law at the UEF Law School. She specializes in climate change law and holds a PhD in international economic law from the London School of Economics and Political Science.


The EU and Canada highlight climate change and the Paris Agreement in context of the CETA

In the same week as Canada, Mexico and the United States signed a new regional trade agreement that makes absolutely no mention of climate change, Canada and the EU made new efforts to formalize the climate change and trade linkage within the Canada-EU Comprehensive Economic and Trade Agreement (CETA). Representatives of the EU and Canada convened in Montréal for the inaugural meeting of the CETA Joint Committee, mandated to oversee and facilitate the implementation of all aspects of trade and investment under the CETA. 

The meeting’s outcomes included a recommendation on ‘trade, climate action and the Paris Agreement’, reiterating the Parties’ shared commitment to the international climate change regime and Article 24.12(1)(e) of the CETA that specifically addresses climate change. The recommendation further signals the Parties’ intention to “step up the role of the Paris Agreement in their bilateral cooperation”. 

This can be seen as a promising signal that the international climate change regime will play a salient role in shaping mega-regional trade flows. It is worth noting, however, that the increased trade in merchandise that has taken place under the first year of the CETA’s provisional application appears to be in sectors that are energy-intensive, and closely linked to the high-emissions extractive industries.

Source: Government of Canada

Moreover, the Joint Committee’s reaffirmation of the Paris Agreement at this point in time is an environmental moment worth modest celebration in light of ongoing concerns regarding the potentially massive environmental implications of the CETA investment protection provisions and the legally-ambiguous investment tribunal established under Art. 8.27.

Will the CETA’s Investment Chapter Have a Negative Impact on Environmental Protection in the Finnish Mining Sector?

While Canada and the EU continually underscore the immense mutual benefit that the CETA brings to businesses and communities and its environmentally progressive nature, it is difficult to ignore that the greatest environmental impact of the CETA is likely to be determined by its Investment Chapter, not the Trade & Environment Chapter that is explicitly dedicated to environmental issues. 

The basic idea underlying the CETA’s Investment Chapter is to ensure that investors are treated equally and fairly, and that there is no discrimination between domestic and foreign investors. One of the mechanisms it includes for foreign investment protection is the possibility for investors to take legal action against governments through a new Investment Court System.  A critical apprehension in this respect is that the prospect of costly legal challenges and damage to a country’s reputation in hosting investment might discourage governments from taking legitimate and necessary regulatory and administrative actions to protect environmental and public interests. 

Even though the Investment Chapter reaffirms Parties’ regulatory right with regard to achieving legitimate policy objectives, including the protection of public health and the environment (Article 8.9), the provision on what constitutes a breach of fair and equitable treatment of investors (Article 8.10.4) leaves open the possibility for an investor to challenge governmental measures based on “legitimate expectations.”  In light of these provisions, there are valid concerns that the CETA’s profitable implications for Canadian and EU investors come at the expense of the Parties’ willingness to regulate in the public interest and according to the principle of sustainable development. 

In the context of the mining industry in particular – a key Canadian sector expected to benefit from the trade agreement - it is difficult to set aside the potential environmental and public health risks for EU Member states that are linked to the CETA’s investment protection rules and dispute settlement architecture. With over 50% of publicly-listed global exploration and mining companies headquartered in Canada, the CETA has not only opened up EU market access to a lucrative and globally powerful group of corporations, it has empowered them through the investment protection chapter to challenge public policy measures that interfere with their natural resource development projects. 

In Finland, the mining sector has been one of the key concerns in the context of the CETA. Past negative experiences, including from the Talvivaara mine, have increased the public’s awareness of the sector’s potential environmental impact. When approving the CETA, the Parliament requested the government to evaluate the need to reform the Finnish mining legislation in consideration of the CETA. In response, the government commissioned an expert report, which saw no need for reform.  The report’s key message is that the Finnish legal system already contains adequate protection to ensure investors’ fair and equitable treatment.  

This finding and the report have, however, generated controversy, not least because the report was commissioned from a law firm known for representing the interests of the mining sector and multinational mining companies.  One of the questions is whether the legal analysis in the report is objective enough to constitute a response to the Parliament’s request. 

Looking at the report commissioned by the Finnish government, it contains comprehensive and well-informed analysis of the Finnish national legislation. However, the international law dimension would have merited more attention. This would have included analyzing relevant case law to understand what kind of government actions have been challenged through investor-state dispute settlement. Such analysis should have studied at least case law involving the mining sector and Canadian mining companies.  

Looking at investor-state dispute settlement, Canadian mining companies already have an extensive track record in seeking financial compensation from governments through arbitral disputes. The request for arbitration filed at the International Center for Settlement of Investment Disputes (ICSID) by Toronto-listed Gabriel Resources against Romania, seeking $4.4 billion for alleged losses in its halted gold-mining project, and the dispute between Vancouver-based Eldorado Gold and Greece (ruled in favor of Eldorado Gold) over the environmental impacts of mine development in the northern region of Halkidiki, are reflective of the kind of mining disputes that could proliferate under the CETA.

In the Gabriel Resources vs. Romania case, the mining company is basing its claimon “unjustified delays in the administrative permitting process, imposing shifting and non-transparent legal requirements,politicizing applicable legal and administrative processes, and ultimately abdicating the responsibility to make decisions on the permitting of the Project in contravention of the applicable legal framework.” In Eldorado Gold vs Greece the claimant’s argument also concerned, inter alia, delays over issuing environmental permits. 

A quick glance at the relevant case law thus shows that legal arguments made in the actual proceedings tend to be more complex than those studied in the expert report commissioned by the Finnish government.  It would therefore have been useful to also study the actual case law and consider its relevance in the Finnish context. Whether this would have affected the overall conclusion remains unknown without comprehensive analysis. 

Overall, the concern remains over the CETA’s Investment Chapter risking to immobilize EU Member states’ from regulating in the interest of public and environmental health protection. Of course, Canada could face similar challenges brought on by EU investment in Canada-based mining operations. Since the Investment Chapter has not been implemented under the provisional application, and the CETA itself has yet to be fully ratified, there is still space for EU Member states to bring in mining legislation reforms to counteract the possible financial, environmental and public health risks associated with the expansion of Canadian mining interests in the EU. 

Doughnut Law – Environmental Law for the Anthropocene?

Niko Soininen

Niko Soininen currently works as a Postdoctoral Researcher in Ocean Governance Law at University of Gothenburg and Senior Lecturer in Environmental law and Jurisprudence at UEF Law School/CCEEL. In the fall of 2018, Soininen will start as an Assistant Professor (sustainable law, governance and regulation) at University of Helsinki.

Anthropocene is the scientific term for a geological time-period acknowledging the fundamental human impact on the Earth’s ecosystems. With global impact come questions of planetary boundaries: How much human impact is too much human impact? The Stockholm Resilience Centre’s study on planetary boundaries shows that we are currently well beyond safe nitrogen and phosphorus output levels. Also, biosphere integrity, especially the loss of genetic diversity, poses a high risk for humanity. Climate change and land-use are currently reported as causing increasing risks. At present, freshwater use lacks a quantified planetary boundary but freshwaters are heavily impacted by the above environmental changes. This is a bleak picture, but not all is lost. I spent four months in the spring of 2018 at the University of Maryland Socio-Environmental Synthesis Center as an ASLA-Fulbright visiting scholar studying adaptive governance. In the following, I’ll recap some of the most salient lessons from the adaptive governance scholarship seeking to design effective and legitimate environmental governance for the Anthropocene.


With the global economic system being a major driver in pushing the planetary boundaries, Kate Raworth presents an interesting theory for rethinking economics (Doughnut Economics. Seven Ways to Think Like a 21st Century Economist. Chelsea Green Publishing 2017). She makes a compelling argument for moving away from antiquated pictures of steadily climbing economic growth toward doughnut shape economics. The economic doughnut builds on “a pair of concentric rings”. The inner ring depicts the social foundation of human well-being and the outer ring the ecological boundaries of our planet. All human activity must remain within the doughnut’s two rings. With this picture in mind, Raworth asks us to consider “what economic mindset will give us the best chance of getting there?”

The question of getting the economic system to nourish social well-being while respecting planetary boundaries is not only important for economics, but also for law. In a legal context, the question reads: what legal mindset will give us the best chance of getting there? Applying Raworth’s question to law, we enter a familiar territory for adaptive law and governance scholarship. What does doughnut law and governance look like? What kind of law and governance is needed to stay within safe operating space for humanity? Analogically to the doughnut economy questioning existing economic theories, the adaptive law and governance theories question existing legal theories.


The first doughnut lesson for law and governance in the Anthropocene is to regulate the use and protection of ecosystems at a systemic level (see a good overview, Benson & Craig 2017; Garmestani & Benson 2013). Traditionally, law has turned a blind eye to regulating cumulative human impacts on ecosystems. This is visible, among others, in the fragmentation of environmental management authority into several sectors at all levels of governance (energy, transportation, food production, natural resources, nature conservation etc.). The limitations of sectoral competence are often aggravated by management and regulatory authorities having limited geographical, and often artificial (non-ecosystem-based), competences. Staying within the doughnut, however, requires law and governance that is equipped with competence equivalent to the nature of the environmental problem at hand. Wicked problems such as climate change, nutrient run-offs and biodiversity loss require a systemic cross-sectoral and multi-level approach to law and governance.

The second doughnut lesson is to recognise that managing (what do we do?) and governing (what do we want?) the use and protection of ecosystems needs to be adaptive. As Craig & Ruhl (2014) and Cosens et al. (2017) have repeatedly observed, procedural and substantive rules need to facilitate the consideration of changing social-ecological circumstances. Traditionally, law has often been used to establish predictable rules that operate acontextually and do not allow consideration of changed ecological, social, economic, technological and cultural circumstances. In Finland, this approach is well illustrated in government issued hydropower licenses that are legally protected against revocation, and in certain instances the law does not even allow changes to existing licenses. This picture of the law as guaranteeing predictability and finality faces significant challenges in the Anthropocene as ecosystems and social systems dependent on them are dynamic entities (complex adaptive systems) with immensely complicated functions, feed-back loops and non-linear tipping-points. For this reason, law needs to allow adaptive and experimental management of social ecological systems and be able to adapt its own rules for maintaining human activity within the doughnut.

The third doughnut lesson is based on an understanding that people and companies do not like to be regulated. They may, however, still wish to advance accepted societal goals and may be very well-equipped to do so. The wrong picture is to think that law is the only policy instrument that really works. If we look at climate change mitigation, this is certainly not true. A study done by Vandenberg & Gilligan (2017) shows that companies like Walmart hold significant power to push environmental policy goals through their subcontractor networks. Law (or public governance in general) is not always the most effective way to steer human activities within the doughnut.

The fourth and final doughnut lesson is that law and governance need to be science based (see e.g. Benson & Craig 2017; Saunders et al. 2017). We need constant monitoring of social and ecological systems to understand how they function, have functioned and will be likely to function. Systemic governance is not possible without science, nor is adaptive management or governance.

With the above four lessons in mind, environmental law and governance will be much more equipped to stay within the social-ecological doughnut than ever before. The million-dollar question is, however, whether the international community, regional actors such as the EU and states have the courage and the political will to move towards more adaptive law and governance. While some encouraging regulatory examples are visible on all governance levels, the push-back of antiquated legal mindsets still linger in the air.

Boosting the EU’s circular economy plans by addressing links between chemicals, products and waste legislation

Topi Turunen

Topi Turunen is a PhD researcher in environmental law at CCEEL / UEF Law School and a Researcher at the Finnish Environment Institute. 

The European Union (EU) is seeking to make the European economy more sustainable through its Circular Economy Action Plan. The interface between chemical, products and waste legislation presents some complex challenges for the objectives of the circular economy package. In January 2018, the European Commission published a communication and staff working document on options to address linkages between three key pieces of EU law, namely the Waste Framework Directive, Regulation on Classification, Labelling and Packaging of Substances (CLP) and the REACH regulation.

Four key challenges

There are four key challenges in the interface between chemicals, products and waste legislation that the communication seeks to address. The first is that waste management operators often do not have adequate information on the presence of substances of concern. This makes controlling the life-cycle of certain chemicals complicated. Information on the composition of materials is available in the supply chain in accordance with chemicals legislation. However, when a material becomes waste, waste treatment operators are not considered to be a part of the supply chain and the information on the material’s composition is therefore not made available to them. Under chemicals regulation, operators recovering chemicals from waste are considered as manufacturers and as starting a new supply chain for the substance in question. The recovered substances will have to be either registered as any new substances; or registered as UVCB substances (i.e. substances of Unknown or Variable Composition, Complex Reaction Products and Biological Material); or the composition of the material has to be identified through the safety data dossier of similar substance that has already been registered in the case of recovery exemption. Hence the identification of the composition of the waste-based materials according to REACH cannot be by-passed in recovery although REACH explicitly does not apply to material when they are still considered ‘waste’. The administrative costs to fulfill obligations of REACH can be high and it has been pointed out that the supervision of recovery exemptions tends to have loopholes.

The second challenge relates to the question of whether the recovery of so-called ‘legacy substances’ (substances that are commonly present in products but that have been prohibited or restricted in new products) should be promoted in order to increase the overall recovery of wastes. Waste streams containing legacy substances can be huge in volume and their recovery can therefore have a substantial impact on the achievement of circular economy objective for more efficient material circulation. Nevertheless, it remains unclear whether the risks of using such wastes can be balanced through the positive environmental impacts of their recovery from the waste stream.

The third challenge is that the regulation of End-of-Waste criteria is not fully harmonised within the EU and it is therefore not always clear when a product or substance ceases to be waste. The Commission is therefore proposing a more harmonized EU-wide regulation of different waste streams ceasing to be waste and more uniform rules for the End-of-Waste schemes in the EU Member States.

The fourth key challenge relates to some discrepancies in waste and chemicals regulation: hazardous waste is not always considered hazardous as a chemical according to the CLP Regulation after it has gone through a recovery process and ceased to be waste. Moreover, hazardous chemicals are not necessarily considered hazardous waste after being discarded.

Thoughts on the way forward

Solving the four key challenges will be complicated. What will be required is either new legislation or significant amendments to the existing legal framework. Possible measures include abolishing the recovery exemptions system, redefining the scope of supply chains and expanding the scope of extended producer responsibility schemes. The downside of abolishing the recovery exemptions system would be increased administrative burdens that risks creating a disincentive for recovery. On the positive side, this would result in safer material cycles and reduce the possible negative impacts of wastes by improving the monitoring of chemical substances in waste recovery. Redefining the supply chains and strengthening the extended producer responsibility both emphasise the crucial role of manufacturers and importers: the life-cycle of the product and its properties have to be taken into account in order to reach the objective of effective and safe material cycles. The distinction between waste and products could also be clarified with more harmonized EU-wide End-of-Waste regulations and clearer criteria for when an object or substance ceases to be waste. Finland has taken initial steps towards improving the quality of its End-of-Waste regulation by starting to draft national end-of-waste legislation and a guidance to support case-by-case decision-making.

Once waste ceases to be waste, it will be subject to the same regulatory framework as similar non-waste products. Therefore the acceptance of legacy substances in recovered materials seems unlikely and it seems more likely that their use in products will remain unlawful. A further argument in support for the proposed approach is that the evaluation of trade-offs between the positive impacts of recovery and the negative impacts of using legacy substances would most likely prove to be extremely complicated and expensive.

Coming back to the Commission’s recent proposal, a final aspect worth noting is that the proposal does not create any obligations for stakeholders. The Commission however proclaims that it will start multiple research projects and aims to work with relevant stakeholders and European Chemicals Agency (ECHA) in order to solve the above-mentioned problems. This process should be well under way by the time the current Commission’s term comes to a close at the end of 2019.

This blog post is based on the following article, published in the Finnish Journal of Environmental Law:

Turunen, Topi: Kemikaali-, tuote- ja jätesääntelyn rajapinnan ongelmakohdat – kommentteja komission tiedonannosta keskinäisistä yhteyksistä. Ympäristöjuridiikka 1/2018, pp. 44–60.

The role of law in securing resilience of water, energy and food systems


Kaisa Huhta, Antti Belinskij and Niko Soininen*

Climate change, population growth and economic and technological development are significant challenges for natural resources management. Governing limited resources requires that the interlinkages between natural resource sectors are adequately acknowledged and addressed.

Such interlinkages are particularly clear between the water, energy and food sectors. Agriculture is the largest consumer of global freshwater. Water is also needed, for example, in the production of hydropower and biofuels and in the operation of solar panels. Energy is needed to ensure food production and water services, but some forms of energy production may also decrease land available for agriculture. Hence, decisions concerning one of these sectors do impact the functioning of others.

Resilience refers to the ability of a system to adequately prepare for, and to recover from, shocks without losing its capacity to function.[1] It is particularly important for sectors such as water, energy and food. This is because, first, the uninterrupted availability of and access to these resources is irreplaceable to any society. Second, the potential butterfly effects between these sectors further emphasise the importance of safeguarding the functioning of water, energy and food systems.

Resilience has a legal dimension. Law can either improve or impede the ability of a system to withstand disturbances and shocks. So how do we recognise a legal framework that improves the resilience of the water-energy-food nexus? First and foremost, the legal framework should adequately acknowledge the vulnerabilities of water, energy and food systems. Secondly, it should recognise interlinkages between these sectors in such a way that prevents a shock in one sector from paralysing the functioning of the others. Finally, a functional and effective legal framework should tackle the different time scales on which the water-energy-food security nexus operates. This means that a legal framework should be equipped to respond to sudden short-term disturbances as well as facilitate the long-term security in these sectors.

What is also needed is an adequate institutional and jurisdictional setup for co-operation and co-management of the sectors. For example, law governing electricity supply should acknowledge that a disruption will eventually affect food and water supply as well. Furthermore, law should not only facilitate responses to sudden shocks but also include tools to prevent such shocks in the longer term. In the water sector, for example, this would mean clear obligations concerning the investments needed to maintain functioning infrastructures.

The role of law in establishing and maintaining resilient water, energy and food systems is important but challenging. In an ideal situation, law supports and enhances the resilience of these sectors. However, law can also have the opposite effect if it emphasises predictability in a way that hinders adaptive reactions in shock situations. For example, rigid and static procedural rules may impede flexible and fast reactions to shock situations even if these rules are generally favourable to ensuring legal predictability and non-discriminatory practices. Furthermore, the societal, technical, economic and scientific uncertainties relating to the interlinkages between water, energy and food sectors make it challenging to balance predictability on the one hand and resilience of water, food and energy systems on the other. Nevertheless, the ability of law to maintain the resilience of these systems is a central element in safeguarding the water, energy and food security.

* The blog post is based on two recent articles supported by the Strategic Research Council’s Winland project (No 303628). The articles are:

  • Antti Belinskij, Niko Soininen and Kaisa Huhta, ‘Vesi-, ruoka- ja energiaturvallisuuden oikeudellinen resilienssi’ Ympäristöpolitiikan ja -oikeuden vuosikirja (2017)
  • Antti Belinskij, Kaisa Huhta, Outi Ratamäki and Marko Keskinen, ’International Law and the Water-Energy-Food Security Nexus’ in Peter Saundry (ed.) Food-Energy-Water Nexus (forthcoming 2018).

[1] Walker, Brian, Gunderson, Lance, Kinzig, Ann, Folke, Carl, Carpenter, Steve and Schultz, Lisen, ‘A Handful of Heuristics and Some Propositions for Understanding Resilience in Social-Ecological Systems’, 11 Ecology & Society (2006), p. 14.

Why multilateralism matters

Moritz Wüstenberg

Junior Researcher, Energy Law

Liberal trade has faced growing resentment from several directions in recent years. The decision by the United Kingdom to withdraw from the European Union following a 2016 referendum has affected both businesses and individuals. On the other side of the Atlantic, the 2016 election of President Trump was built on a campaign of protectionism and threats to multilateral trading rules. Disrupting the international trading system in order to realise an “America first” policy or to cast of the shackles of the European Union raise concerns and questions. In addition to creating economic benefits, trade on multilateral terms has for centuries been recognized as a key tool for maintaining peaceful relations between nations. If multilateralism fails, how will this impact geopolitics? Some exceptions, such as those allowing for closer cooperation without infringing on the multilateral rights, are sanctioned by the multilateral rules of the WTO and their use is on the rise. Is an increase in the use of exceptions to multilateralism a cause for concern?

The reduction of tariffs has been achieved through several rounds of negotiations under auspices of the General Agreement on Tariffs and Trade (GATT) in the wake of the Second World War. The outcome these means that trade in goods today is nearly tariff free. A key ingredient for the success of the GATT negotiations was the Most-Favoured Nation (MFN) clause, through which tariff concessions negotiated between some Members were multilateralized to all on a non-discriminator basis. In tandem with trade liberalization the global economy witnessed rapid growth of income, creating wealth for those taking part in the process. The driver of this growth has been argued to have been the virtuous cycle in which tariff cuts led to increased trade, which in turn led to more income which yet again enabled tariff cuts. Today, the MFN clause remains a cornerstone of the World Trade Organization Agreements (WTO) with only few exceptions to it.

Preferential Trade Agreements, such as the European Union, NAFTA or the CETA, that offer deeper liberalization to its Members, but do not raise tariffs or other barriers to trade vis-à-vis those WTO Members that are not part of the pact, form the most important exception to the MFN obligation. In general, the preconditions for deviations from the MFN principle are threefold: transparency (the requirement to notify), commitment to regional trade liberalization (the requirement that PTA´s cover all trade between parties) and neutrality in relation to non-parties. The number of PTA´s has grown rapidly in the past decades, leading to concerns on the erosion of multilateralism. This echoes also the broader discussion on the fragmentation of international law, ongoing for more than a century.

The positive economic effects that can be achieved through liberal trading policies have been evident in both Great Britain in the 19th century as well as the United State in the 20th century. The repeal of the Corn Laws in 1846 ended a period of mercantilism in place since 1815 and pushed Great Britain into prosperity by embracing free trade, even on unilateral terms. The underlying theory was and remains that gains can be made by specializing in the production of certain products and then exchanging these for products that others produced efficiently. Free trade would eventually lead to an efficient outcome as nations produced those goods which they could produce most efficiently. With its bet on free trade, Great Britain would be the leading economic power of the 19th century.

Successful post-war settlements, at least since the 1648 Peace of Westphalia, have specifically recognized the relevance liberal trade has for the maintenance of peaceful relations. Are the mostly peaceful relations since the Second World War under threat from the rattling of trade sabres? While it is unlikely that neither the protectionist policies of the United States or the withdrawal of the United Kingdom from the EU will have any imminent effect on peaceful relations between nations, the stakes are high. Throughout recent history, liberal trade has functioned as an assurance against armed conflict and, conversely protectionism has preluded conflict.

A recent investigation on the effect of aluminium and steel imports (Section 232 investigation) on the US economy concluded that these have a negative effect on the National Security and can therefore be “adjusted”. Against a backdrop of several options to protect the domestic industries, President Trump chose to raise duties on imports from all countries including Canada and the European Union. Calls for retaliation were immediate, reflecting the conception that the measures of the United States are unjustified.

National Security exceptions are found in most trade agreements, including the WTO agreements. The US seems to have prepared to make use of this exception by broadening the traditional interpretation of national security beyond national defence to include also economic security in the aluminium and steel investigation. The apparent reason behind this interpretation is an attempt to rely on a little used MFN exception of the GATT (Article XXI) that allows WTO Members to take `any action which it considers necessary for the protection of its essential security interests`. While there are qualifications for the use of Article XXI, it is in effect self-judging it suffices that the measures taken are considered necessary by the state taking them. Invoking this article without due cause could be the straw that breaks the camel´s back, undermining the effectiveness of the multilateral framework and causing other nations to retaliate by also invoking Article XXI to justify their trade restrictive measures.

The “political trilemma” is how the economist Dani Rodrik has described the problem facing international economic integration. Nations have to make a choice between two of three lines of policy: international economic integration, the nation-state and mass politics. Should international economic integration be maintained, either the nation-state or mass politics have to be sacrificed. With both America and the United Kingdom choosing the nation-state and mass politics over integration, only time will tell if history will repeat itself with trade protectionism flowing into geopolitical tensions.

Deeper commitment to free trade without diminishing the rights of WTO Members is at the core of the Preferential Trade Agreement exceptions to MFN treatment. Negotiation with fewer nations enables faster decision making and makes it possible to overcome the foot-dragger effect which the consensus based rules of the WTO can have. Consequently, PTA can be seen as a building block as opposed to a stumbling block for multilateralism. Moves toward unilateralism as witnessed in the US aluminium and steel investigation, on the other hand can be considered conflicting with multilateralism. It remains to be seen if trade-politics convert to geo-politics and, more ominously, trade wars morph into real wars.

This blog is based on the author’s recent publication ´Back to the future: MFN treatment in an era of protectionism´ in the Nordic Journal of International Law. This publication reviews the development of the Most-Favoured Nation clause in light of historical events and analyses its importance in trading relations today.





Is Glyphosate safe? We have the right to know


Emilia Korkea-aho and Päivi Leino

Korkea-Aho is Associate Professor of European Law and Legislative Studies (1.1.2018 onwards) and Leino is Professor of International and European Law at UEF Law School.

In November 2017, after a great deal of political maneuvering, the EU Member States decided to extend authorization for glyphosate, the world’s best-selling herbicide, for a period of five years. Eighteen Member States voted in favour of the extension, nine voted against and one abstained. The decision came following a lengthy and combative process, which focused on the question of whether glyphosate is carcinogenic, something that the World Health Organization declared in 2015 as probable. The public debate surrounding the decision has been exceptional, resulting in a ‘Ban Glyphosate’ European Citizens’ Initiative and a pending Court case relating to the publicity of the scientific reports regarding the use of glyphosate and its effects on humans.

The pending Court case involves a request by four Green Members of the European Parliament addressed to the European Food Safety Agency, which after lengthy correspondence agreed to disclose parts of the reports but refused to hand out their most sensitive parts, including the summaries of scientific findings. The correspondence can be found in full on the AskThe EU – website under “Is glyphosate safe? We have the right to know!”. The debate illustrates how the role of agencies has been gradually changing in the EU. While their creation was initially justified by reference to the need to delegate technical issues to bodies operating largely outside politics, it seems that many agencies (such as the European Chemicals Agency (ECHA), the European Food Safety Agency (EFSA), and the European Medicines Agency (EMA)) today deal with issues that are politically “hot stuff”.

A tension between confidentiality and transparency has become particularly evident in the framework of regulatory procedures concerning chemical substances, food, and medicinal products. In these procedures, applicants must provide EU agencies with commercially sensitive information to trigger the scientific and technical evaluation needed for marketing authorization or approval, and legally, these companies “own” the data that they provide. In the case of glyphosate, EFSA refused four MEPS access to the scientific studies on the grounds that the information is commercially sensitive. While the rules on public access to documents should certainly not allow competitors to access the business secrets of others, they exist to safeguard a key function of democratic society: enabling broad and enlightened debate about issues that concern society at large. That the possible health risks caused by glyphosate belong to these matters is something that few would disagree on.

In recent Agency practice, a new “ownership” paradigm seems to have evolved with the potential to develop into a novel kind of originator control. Originator control, which has been used in the context of sharing information with other governments or international organizations, makes re-dissemination of information conditional on the originator’s approval, and is unknown to EU public access legislation, which requires consultation procedures for third party documents. Disclosure decisions must be taken in appreciation of the potential harm caused to commercial interests, including intellectual property rights, which is to be weighed against public interest in disclosure.

Copyright and public access regulation are a poor match, with disparate and competing policy objectives that are not easily balanced or reconciled. Many agencies have in practice relied on companies to propose and justify redactions and non-disclosure decisions. Agency disclosure decisions have also been accompanied by a statement intended to limit the subsequent use of information by the applicant. It is clear that when an application for access is based on Regulation 1049/2001, there should be no legal grounds for limiting its re-use. However, when agencies disclose information with the disclaimer that the use of released documents may lead to copyright infringement, they shift the legal risk and liability to the applicant; a risk that should be with the public authority deciding on public access.

Current legislation and case law provide limited guidance in helping to settle the balance. According to rumours, the European Commission is now planning to adopt a legislative proposal that would force pesticide companies to make public all scientific studies on the safety of their products in an attempt to eliminate claims that industry holds too much influence over authorizations. At best, the proposal would enable independent assessment of the way in which agencies evaluate scientific studies. It would, however, offer limited guidance for the new situation in which agencies increasingly find themselves. The fact that EU agencies deal with issues that are politically “hot stuff” also means that they engage directly with the general public, and it remains to be seen whether this new role of agencies is foreseen in the proposal.

This blog post is based on findings from Emilia Korkea-aho and Päivi Leino, ‘Who owns the information held by EU agencies?: Weed killers, commercially sensitive information and transparent and participatory governance, 54(4) Common Market Law Review (2017) 1059-1092. The blog post has originally been published here.

The Bonn Climate Conference 2017: Progress on the implementation of the Paris Agreement and higher ambition?

Kati Kulovesi

Professor of International Law & Co-Director of the Centre for Climate, Energy and Environmental Law

The latest round of United Nations climate negotiations concluded on 18 November 2017 in Bonn, Germany. What is the state of international climate policy after the meeting and what lies ahead for 2018 and beyond?

The negotiations in Bonn were intended to have a mainly technical focus. Major outcomes were neither expected nor achieved. Still, the negotiating agenda was packed with issues ranging from agriculture and gender to indigenous peoples and loss and damage caused by climate change. Also high on the agenda were the main building blocks of the UN climate regime, namely mitigation, adaptation, finance, technology and capacity building.


Photo by IISD/Earth Negotiations Bulletin (


One of the main issues in Bonn related to the development of detailed rules for implementing the 2015 Paris Agreement. The deadline for concluding these important negotiations is in December 2018. While progress was achieved on some issues, long-standing controversies also surfaced and largely stalled negotiations on the crucial issue of mitigation.

The Paris Agreement’s key achievements include that its basic mitigation regime applies to all Parties; the Agreement does not refer to the outdated categories of developed and developing countries in the 1992 UN Framework Convention on Climate Change and gives more consideration to countries' national circumstances.  However, during negotiations on guidance on Nationally Determined Contributions (NDCs), China, India and their allies in the Like-minded Developing Countries group called for returning to a bifurcated system where different rules apply to developed and developing countries respectively. For many, such a system would constitute a major step backwards and the proposal met strong opposition especially from developed countries. Ultimately, countries forwarded 180 pages of text on mitigation to the next negotiating session in May. The text leaves all the highly divergent options on the table, including by reproducing word-by-word submissions from several countries and coalitions. 

Hopefully the question of bifurcation will not distract the negotiators too much next year. For the question that urgently should take the centre stage in 2018 and beyond is that of ambition. The UN Environment's 2017 Emissions Gap report indicates that the gap between the emission reductions needed to meet the Paris Agreement’s objectives, including the 2°C 1.5°C targets, and the existing NDCs is “alarmingly high” and “more ambitious NDCs will be necessary by 2020.”

The Paris Agreement relies on global stocktakes at five-year intervals from 2023 onwards to increase collective ambition. A similar exercise, a facilitative dialogue, was agreed in Paris for 2018. Now known as the Talanoa Dialogue -inspired by traditions of COP 23 President Fiji – this exercise will be an important opportunity to test the Paris Agreement’s largely procedural approach to mitigation.

The Talanoa Dialogue will be informed by the Intergovernmental Panel on Climate Change’s Special Report on the 1.5°C target, scheduled for October 2018. Given that countries should submit new or updated NDCs in 2020, the hope is that the IPCC report along with the Talanoa Dialogue will lead to a stronger response to climate science and to more ambitious NDCs.

Divided into preparatory and political phases, the Talanoa Dialogue will take place from January to December 2018. It will focus on three main questions: where are we; where do we want to go; and how do we get there. Positive elements in the Dialogue’s design include its comprehensive and participatory nature. Parties, stakeholders and expert institutions are invited to provide analytical and policy-relevant input. They are also invited to organize local, national, regional and global events in support of the Dialogue.

A problematic feature of the Talanoa Dialogue’s design is that there is no clear path forward from the Dialogue towards more ambitious NDCs. The Dialogue’s outputs will include summaries and reports of the discussions. The outcome is also “expected to capture the political momentum, and help Parties to inform the preparation of nationally determined contributions.” However, there seems to be nothing in the design to ensure that ambition will indeed be increased following the Dialogue.


Photo by IISD/Earth Negotiations Bulletin. (


How, then, to start building the momentum for more ambitious climate action?  An obvious challenge for the political climate is that President Trump has announced intentions to withdraw from the Paris Agreement in 2020 and the US federal government is no longer providing global climate leadership like it did during the negotiations for the Paris Agreement, especially through bilateral cooperation with China.

Several procedural steps have already been identified both within inside and outside the UN climate negotiations for the next couple of years. These include:

While important, these steps are not by themselves enough to guarantee that ambition will be increased in 2020. Stakeholders within EU countries and elsewhere should therefore take advantage of the participatory nature of the Talanoa Dialogue and build pressure on politicians to take stronger action both nationally and internationally. An encouraging example of going beyond the official government position is the ‘alternative’ US represented through individual states, cities and other stakeholders. The ‘alternative’ US was highly visible in Bonn and plans to remain active in global climate policy despite the backward position on climate change by the Trump Administration.

The Paris Agreement’s legal structure is interesting and innovative in that it includes opportunities to bring various actors at various levels of global governance closer together, including when preparing NDCs and evaluating collective progress through global stocktakes. The Talanoa Dialogue will provide the first important opportunity to test this design and hopefully show that it can actually work in increasing collective mitigation ambition. 

Time for a holistic approach to climate change and air pollution in international law

Dr Yulia Yamineva

Yamineva works as a senior researcher at CCEEL.

The urgent challenges of climate change and air pollution could benefit from more integrated consideration under international law. As this blog post explains, climate change and air pollution are currently mostly addressed through separate international legal instruments and regimes. The blog post therefore identifies ways to build stronger links and synergies between policy measures to address these issues through international law.[1]


A view from the venue of the Biennial Conference of the Asian Society of International Law in Seoul, August 2017

A view from the venue of the Biennial Conference of the Asian Society of International Law in Seoul, August 2017



Policies to address climate change and air pollution include potential for win-win solutions. Some pollutants, especially black carbon, have both a detrimental effect on air quality and a warming impact on the climate. However, other air pollutants have a cooling effect and reducing their emissions could lead to an overall warming result. Furthermore, policy choices in one domain can have harmful effects on the other: for instance, the EU policies, aimed at developing diesel technology in the car industry in order to meet carbon dioxide reduction targets led to an increase in nitrogen oxides and particulate matter pollution in urban areas.[2]

There are clear benefits from a harmonised approach to tackling air pollution and climate change where mitigation measures are assessed for their potential impact on climate, air quality, human health and ecosystems. The key example relates to reducing emissions of short-lived climate pollutants (SLCPs).  Due to their short lifetime in the atmosphere, SLCP emission reductions, especially those of methane and black carbon, could slow the rate of global warming by 0.5°C by 2040. In addition to their warming effect, black carbon and methane have a negative effect on air quality and the environment: reducing these emissions could avoid 2.4 million premature deaths globally by 2030 and have positive impacts on agriculture and ecosystems. Focusing on mitigating SLCP emissions is therefore an attractive option to slow down global and regional warming in the short term, while at the same time improving local air quality.



International law largely treats the two policy goals – slowing down climate change and improving air quality – through separate instruments. This is unsurprising as climate change has traditionally been framed as a global problem, while air pollution has been understood by policy makers as a local or at best a transboundary issue. These different framings have implied that climate change should be addressed through legal instruments of global coverage, whereas air pollution can be effectively mitigated through regional and national/local measures. More recently, however, it has become apparent that the impact of air pollution goes beyond local or regional areas: this includes not only the impact on the climate referred to above but also worsening air quality due to atmospheric transport of air pollution from distant sources. Therefore, the problem of air pollution also requires global approaches.

Looking at international climate law, the 2015 Paris Agreement does not define what specific greenhouse gases or other warming substances it covers and in this sense does not address specifically methane or black carbon. One caveat to this is that the rulebook for the implementation of the Agreement is still under negotiation. The Agreement also contains no references to air pollution, although the connection may be implied from multiple mentions of sustainable development.

At the same time, methane has traditionally been within the scope of the UN Framework Convention on Climate Change (UNFCCC) regime: it is part of national reporting and covered by the Kyoto Protocol’s emissions reduction targets. It has received somewhat less attention though as the main discussion thus far has been on a long-term response to climate change and therefore on reducing carbon dioxide emissions. Black carbon, which is an aerosol and not a greenhouse gas, has not been covered by the UNFCCC regime.

Unlike international climate law, which centres on the UNFCCC regime, international law on air pollution is heavily fragmented. This issue is regulated in an ad hoc fashion through a patchwork of legal instruments covering specific regions, activities and substances. There is no single legal framework with a global reach and prospects for developing one are at present low. Lack of comprehensive and holistic treatment of air pollution in international law results in gaps in geographic, pollutant and pollution source coverage.

Looking across international air pollution frameworks, it can be concluded that these are rarely sensitised against climate impacts of air pollution measures. Air pollution treaties typically refer to transboundary effects of pollution but not to global effects, including climate change. There is for example no comprehensive global coverage of black carbon emissions. A regional exception is the Gothenburg Protocol to the Convention on Long-range Transboundary Air Pollution which was amended in 2012 to include emissions reduction targets for fine particulate matter. Although the black carbon component of these targets is not specified, the parties are encouraged to focus their mitigation action on black carbon rich sectors. The Gothenburg Protocol is thus the only multilateral environmental agreement to include black carbon in its scope. However, the amendment has not entered into force pending ratification by two-thirds of its parties and the geographic scope of the Protocol is in any case limited to Europe and North America.



There are multiple synergies between these two domains of international law which can be advanced for a more coherent approach to climate change and air pollution.

Scientific cooperation and collaboration in inventory development and reporting is one of the key areas. Data and scientific analyses are a fundamental step in developing sound environmental policies, and emission inventories are particularly important for developing national mitigation measures. For instance, scientists say that the best way to maximise climate and air quality benefits is to focus on sources with a high black carbon component rather than on those with a high component of cooling substances.

There are clear synergies between international climate change law and air pollution instruments in terms of inventories. The UNFCCC already has in place a well-developed global reporting framework for methane which air pollution frameworks could capitalise on. For black carbon, current reporting frameworks are fragmented, incomplete and mostly confined to the Northern hemisphere. More generally, global data on air quality as well as particulate matter and black carbon emissions are scarce or unavailable. The problem is especially acute in many developing countries which have poor capacity and systems to monitor air quality. This makes capacity-building activities at the global level crucial.

Another important direction is raising awareness about linkages, co-benefits and trade-offs between climate change and air pollution policies, including with respect to black carbon and methane. In this context, the Climate and Clean Air Coalition (CCAC), which is a public-private partnership led by governments, has already played an important role through scientific assessments and communication of SLCP impacts and potential mitigation actions. 

Although the Paris Agreement does not per se integrate air quality concerns, the country-driven approach to mitigation action implies that diverse mitigation efforts can be accommodated under its framework. Potentially any substances, including methane and black carbon, can be incorporated into nationally determined contributions. In fact, many countries have already included methane, several have mentioned SLCPs, and some, such as Mexico and Chile, have specifically mentioned black carbon in their intended nationally determined contributions.

The situation is more complex regarding integrating climate change concerns into air pollution frameworks due to the number of related instruments and their incomprehensive coverage. This for instance means that there is no one single interface on air pollution at the global level which makes institutional cooperation between the policy worlds on climate change and air pollution more difficult. However, several fora have the potential to advance such cooperation, including the abovementioned CCAC as well as international organisations such as the UN Environment, the World Health Organisation and the World Meteorological Organisation.  

In conclusion, there are many interlinkages between international law on climate change and on air pollution which should be explored.  Greater coherence between climate change and air pollution policies provides an attractive opportunity to link global, regional and local environmental agendas in a mutually beneficial way.


[1] The blog post is based on the author’s conference paper ‘Climate Change and Air Pollution in International Law: Apart or Together? Short-lived Climate Pollutants in Asia’, which was presented at the Biennial Conference of the Asian Society of International Law in Seoul, August 2017, as well as: Yulia Yamineva and Seita Romppanen, ‘Is Law Failing to Address Air Pollution? Reflections on International and EU Developments’ [Forthcoming in 2017] Review of European, Comparative & International Environmental Law, 26 (3); Yulia Yamineva and Kati Kulovesi, ‘Keeping the Arctic White: The Legal and Governance Landscape for Reducing Short-lived Climate Pollutants in the Arctic Region and Opportunities for Its Future Development’, in review.
[2] See Aleksandra Cavoski, ‘The Unintended Consequences of EU Law and Policy on Air Pollution’, [Forthcoming in 2017] Review of European, Comparative & International Environmental Law, 26 (3).


Seita Romppanen

Romppanen works at the UEF Law School as a Senior Lecturer in international environmental law.

In July 2016, the European Commission issued a legislative proposal on how to include the land use, land-use change and forestry (LULUCF) sector in the EU’s climate and energy framework for the 2021-2030 period. The EU’s overall goal for the period is to reduce greenhouse gas emissions by 40% from 1990 levels. The proposal is based on a ‘no debit’ approach, meaning that land-use emissions must be entirely compensated by removals, with some flexibilities between the LULUCF sector and the effort-sharing and EU emissions trading sectors.

Notably, the Commission’s proposal would introduce binding mitigation targets in the LULUCF sector for all EU Member States. Moreover, emissions from bioenergy are also to be included in the new framework. However, regulating LULUCF sector’s climate impacts is tricky as forests call for different perspectives in different contexts in the global environmental agenda. Issues such as the forest carbon cycle, biodiversity, conservation and the increasing need for forest biomass for energy call into play strong yet conflicting perspectives on how forests should best be exploited and regulated.




Especially in Finland, the Commission’s LULUCF proposal has been highly contentious. One of the key controversies relates to the proposed forest management reference levels and associated accounting rules for LULUCF. The reference level essentially compares the change in the carbon sink to an earlier point in time. The projected harvest intensity (e.g. forest biomass use) is compared with the past forest harvest intensity. Depending on the reference level, increasing the use of the forest will decrease the sink (i.e. cause emissions) and the debit needs to be compensated for by emissions reductions in other sectors.

If a Member State exceeds the reference level (i.e. removal of emissions), it can take advantage of the excess for flexibilities in other sectors. In Finland, bioenergy plays a strong role in the current government’s programme. The government is committed to increasing the use of renewables by up to 50% in the 2020s. This increase will be, in principal, achieved through ‘growth in the supply of bioenergy’ and in especially, ‘the greatest opportunities’ will be achieved through increasing the production of liquid biofuels. In concrete terms, Finland plans to increase wood harvesting from the current 66 million cubic meters annually to 80 million by 2030. Through these extensive targets, Finland aspires to become the world’s pioneer in bioeconomy.

As the Commission’s LULUCF proposal links the use of forest biomass for bioenergy to the LULUCF sector’s emissions, it has lead to a heated debate in Finland on GHG emission savings that could be achieved through the use of bioenergy. The Commission has proposed to set the years 1990–2009 as the baseline against which the reference level should be calculated. Last July, the European Parliament voted in favor of stronger LULUCF accounting rules and proposed a new baseline of 2000–2012. The Finnish government  considered these proposals as unfair for Finland as the proposed reference level would cover years that were particularly difficult in the forestry sector and thus, create a negative gap between historical and projected forest harvest intensity. Put bluntly, the reference level proposed by the Parliament would not allow for the planned increase of forest biomass use without compensatory (and costly) action elsewhere.




The Finnish government argues that through sustainable forest management it is possible to increase forest harvest intensity while also increasing Finland’s carbon sink. Yesterday, the Parliament’s plenary voted to support this view, and the previously ambitious approach was weakened. Among other amendments, an amendment that would give the Commission the possibility to ‘grant a derogation’ from the baseline upon ‘reasoned request by a Member State’ was accepted by the Parliament.

However, the Finland’s official views have been challenged both internationally and domestically by a large group of researchers from leading research institutes, including the Finnish Climate Change Panel. Indeed, strict reference levels are backed up by science: from a climate perspective, a reduction in the forest sink leads to more CO₂ emissions – even if forests are managed sustainably. In addition, increased harvesting is also detrimental to forest biodiversity and ecosystems. However, there is a clear conflict between the EU’s LULUCF proposal and Finland’s plans for bioeconomy – plans that were partly built to respond to EU’s targets pushing for increased use of bioenergy and biofuels. Now, we are already turning back from the biofuels path, and sustainable use of forest biomass does not encourage using wood for energy. Regulating the delicate interface between science and policy is difficult, and the polarised and inflammatory debate between the two camps does not facilitate the regulators’ task in finding a climate-positive and both economically and environmentally sustainable compromise. In EU, the legislative procedure is still open and thus comprehensive conclusions of the new regulatory architecture on LULUCF are yet not possible.

If we wish to ensure that our climate action keeps to a fair and sustainable path, and that it complies with the legal requirements to which we are subject, Finnish bioeconomy plans must be based on, and amended by reference to, the best available science. This includes the fact that our government accepts the fact that the policy has changed, and that the change is justified by science. If we as one of the wealthiest and most educated countries in world cannot cut our emissions, who can? However, and very centrally, this does not mean that we will not be able to exploit our forest resources in the future – this is not what the EU is saying – but it does mean that we should reorient, diversify and adapt our public policy in relation to forests to respond to today’s climate reality. Thus, the need to revise our strategies could be treated as an apt opportunity to innovate alternative and new uses of forest biomass. Finland is already known for its sustainable wood products as well as novel wood construction solutions – should we not build on these innovations instead of emitting them as CO₂ up in the atmosphere?

Ecological Futurists at Work: Moving Forward on Global Ocean Governance

Dr. Sabaa A. Khan, Postdoctoral Researcher

The UN Ocean Conference took place from 5 to 9 June 2017 at the UN Headquaters in New York. The historic Conference closed just a few weeks prior to the fourth session of the Preparatory Committee established by UN General Assembly Resolution 69/292 on development of a new legally-binding instrument under the UN Law of the Sea Convention (UNCLOS) to address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (ABN).

Taken together, these developments point towards an emerging extension of international law into the high seas, conceptualised as a common resource that belongs to all of humanity. As the oceanic sights of international law have risen, so has the hope for the potential geographical influence of legal rules on the horizon to regulate activities on the high seas.

The main outcome of the UN Ocean Conference was a Call for Action. While this outcome is by no means a binding instrument, its contents echo the ambitions of international environmental law in regards climate change, human health and environmental protection. The Call for Action also looks to future law, reaffirming the ambitions of ongoing legal negotiations under the auspices of UNCLOS (mentioned above), as well as multilateral negotiations under the WTO on disciplining harmful fisheries subsidies.

Moreover, the Call for Action brings to the forefront an area of international environmental law that often receives minimal political attention at all levels of governance – the regulation of chemicals and waste. In this respect, the outcome text of the UN Ocean Conference obliges the global community to not only look forward to the creation of new legal agreements targeting our common marine spaces and resources, but to reflect upon the shortcomings of the existing international legal landscape in regards abating the immense global marine pollution that is linked to the production, use and disposal of toxic chemicals and waste.

The Call for Action could not be clearer in that the sound management of chemicals and waste lies at the centre of global ocean health. At the global level, a number of international chemicals and waste regimes exist to protect our marine ecosystems from the global circulation and disposal of toxics. However, their coverage is extremely narrow in scope and their controls are sporadic, limited to specific points of the chemical lifecycle. We have yet to arrive at regulatory frameworks that encapsulate the entire lifecycle of hazardous substances in global use and define, clearly, stakeholder responsibilities at each and every lifecycle phase.

Evidently, our inability to see transparently through our globalized commodity chains gravely limits our capacity to ensure the protection of human and ecosystem health, including the oceans, from toxic commercial substances and waste. The visibility that is required to effectively protect our global communities and common resources from the toxic hazards of chemicals and waste must cut across entire global chains of production and consumption. In this respect, the launch of the Tuna 2020 Traceability Declaration at the UN Ocean Conference should serve inspiration to stakeholders in the broader global commodities and chemicals market, as an example of the product lifecycle and supply chain commitments necessary to follow through on bold environmental, oceanic and human health objectives embodied in our international environmental laws.

It is certain that the health and resilience of our oceans will depend critically on the further development of international law, notably on fisheries subsidies, on chemicals and waste trading and evidently, on the protection of marine biodiversity in ABNJ. However, also noteworthy is that the UN Ocean Conference Registry of voluntary commitments received 1328 submissions upon the Conference’s closure. This demonstrates that where intergovernmental legal texts fall short in their capacity to “save our ocean”, transnational stakeholders rise to challenge. The Registry itself creates a self-imposed and public standard for all those who have contributed to it, and should be used as such, to incite a global culture of transparency, governmental and corporate accountability and civil society mobilization. The Registry exemplifies an inclusive ecological futurism at work, a seedling for strengthened global ocean governance, from the bottom up.

More Time for an Energy Revolution? Seizing the Opportunity to Slow Down Climate Change by Cutting Emissions of Short-lived Climate Pollutants


Kati Kulovesi, Yulia Yamineva and Veera Jerkku

View of the South of Delhi by Jean-Etienne Minh-Duy Poirrier (Under Creative Commons License)

There is an important ‘ambition gap’ between the climate change mitigation policies pledged by countries in context of the Paris Agreement and those needed to avoid dangerous climate change. Discussions on ways to step up climate change mitigation efforts commonly focus on ways to reduce carbon dioxide (CO2) emissions. These indeed play a crucial role in long-term climate change mitigation. However, achieving radical cuts in CO2 emissions also requires a fundamental economic and energy transformation that is proving time-consuming to achieve.

Our argument is that short-lived climate pollutants (SLCPs) provide an attractive option that could ‘buy’ more time to cut CO2 emissions. The United Nations Environment Programme has estimated that reducing SLCP emissions, especially methane and black carbon, could slow the rate of global warming by 0.4-0.5°C by 2040 (UNEP, 2011). This is an important contribution given that the existing climate policies have been estimated to limit the global average temperature increase only between 2.9°C and 3.4°C by the end of the century (UNEP, 2016)., thus falling short of the 2°C target in the Paris Agreement.

SLCPs include methane, some hydrofluorocarbons (HFCs), tropospheric ozone and black carbon. What unites them is a significant short-term warming effect on the climate. Methane, tropospheric ozone and black carbon cause local air pollution, thereby adversely affecting human health and ecosystems, including by reducing crop yields.

At the CCEEL, we have recently launched a new five-year research project known as ClimaSlow (Slowing Down Climate Change: Combining Climate Law and Climate Science to Identify the Best Options to Reduce Emissions of Short-Lived Climate Forcers in Developing Countries). The project is led by Professor Kati Kulovesi and funded through an European Research Council (ERC) Starting Grant for 2017-2021. Other CCEEL members involved in the project are Dr Yulia Yamineva  (Senior Researcher) and Veera Jerkku (PhD candidate).  The project also involves participation by the UEF Aerosol Physics group.

One of the factors driving our interest in SLCPs is that we see them as an interesting opportunity to merge the global climate change agenda with the local health and environmental agendas. Air pollution poses a considerable risk to human health worldwide. It leads to heart and lung failures and cancer, causing approximately 6.5 million deaths each year (WHO, 2016). Through aggressive reductions in black carbon emissions, it would be possible to avoid 2.4 million premature deaths annually by 2030 as a result of reduced exposure to fine particulate matter (UNEP, 2011).

The growth in SLCP emissions over the next decades is expected to be driven by developing countries. Therefore, in addition to the focus on international and transnational cooperation, the ClimaSlow project looks at three national case studies: China, India and Nepal.

China and India are among the world’s key sources of black carbon and methane emissions and their emissions of HFCs are also set to rise. Air pollution is also an acute problem in all three countries damaging both public health and the economy. In China, for instance, air pollution is implicated as a leading cause of mortality (UNEP, 2015).  The project will look at the policies and regulations in place in the case study countries, and seek to identify ways to strengthen them through both national and global action. It will also try to identify opportunities for others to learn from the experiences of the three case study countries.

One of the project’s motivations is that the legal and regulatory options to strengthen global action on SLCPs have not been studied comprehensively, and the climate impacts of such options are not yet adequately understood. The ClimaSlow project seeks to fill the vacuum by undertaking an analysis of the fragmented and multi-layered global legal and regulatory framework for SLCPs.

Furthermore, the ClimaSlow project breaks disciplinary boundaries through combining climate law and climate science. An analysis of legal and regulatory options is complemented by climate modelling work to determine their climate impacts and hence identify the most effective ways to achieve deep reductions in the emissions of SLCPs.

The project will seek to maintain an iterative dialogue and share its interim and final findings with a variety of stakeholders including scientists, NGOs and policy-makers both internationally and in the case study countries. This will for instance be done through organising workshops, developing policy briefs and participating in relevant events. The project will also culminate in an interdisciplinary scientific conference in 2022.

You can stay up to date with project developments through the CCEEL website and Twitter account (@uefcceel), as well as the project’s own Twitter account @ClimaSlowERC.

The Evolving International Gas Industry: A Brief Comment on Decarbonisation and Matters Arising

Tade Oyewunmi, Doctoral Researcher,

In a forthcoming paper on the topic- ‘Examining the Instrumental Role of Regulation in the Development of Gas Supply Markets: Highlights from the US and EU’ (2017)[1] I considered the effectiveness of regulation in the path towards restructuring and the development of competitive gas markets in which parallel policy objectives such as security of supply and sustainability are being pursued.

In a climate change and decarbonisation context, debates relating to the effectiveness and implications of market-based mechanisms like carbon tax and emissions trading scheme (ETS) as opposed to standard-setting or rule-making conventional approaches to regulation have gained significant attention recently.[2] Pollution resulting from operations in the energy and petroleum industry are often considered as a major cause of greenhouse gas (GHG) emissions and climate change.[3] In an increasingly international gas industry which is now ever more interconnected with electricity markets in major industrialized economies, the disposition of the major energy-related GHG emitting countries such as the US, Russia, and China becomes highly relevant.

The North American shale gas revolution over the past eight years undeniably positions the US as the leading oil and gas producing country globally.[4] It is therefore not surprising to see several legal disputes between environmental protection groups against energy firms who are seeking to take advantage of the boom in unconventional hydrocarbon production to obtain approvals for gas commercialisation and LNG projects. Recently, in Earthreports, Inc., et al. vs. Federal Energy Regulatory Commission, Dominion Cove Point LNG, et al. (2016).[5] a US Court of Appeal for the DC Circuit rejected the claims of such environmental groups who contested the Federal Energy Regulatory Commission (FERC)’s conditional authorization of the conversion of the Cove Point LNG facility from an import maritime terminal to a mixed-use, import-and-export terminal. The environmentalists had argued that the FERC failed to consider the indirect environmental impacts that the Cove Point LNG conversion into a gas export facility might have, and therefore failed to satisfy its obligations under the National Environmental Policy Act (NEPA) of 1969. The Court held that under NEPA, the FERC is not required to consider indirect effects of increased natural gas exports through the Cove Point facility, including potential climate impacts.[6] Assuming this decision indicates the current disposition in the US to gas utilisation and commercialisation, it may be argued that conventional and prescriptive standard-setting or rule-making regulatory approaches may not necessarily hinder the shale gas production and commercialisation boom. However, as with any conventional regulation approach, it does create additional compliance and monitoring costs. Another important issue in the scheme of things is the possibility of the US pulling out of the 2016 Paris Agreement following the recent elections and subsequent change in government.[7]   

Conventional Regulation vs. Market-based Pricing of Carbon Emissions

Advocates of market-based mechanisms like the ETS and carbon tax contend that placing a strong and predictable price or charge on carbon emissions is the most cost-effective and efficient path to GHG emissions reductions.[8] It is noted that the ETS framework seem to have come under stronger criticisms, while carbon tax proponents seem to be gathering more support.[9] Arguably, there are justifiable concerns about the de facto effectiveness of the ETS and its ‘cap and trade’ mechanism.[10] Such concerns relate to whether it actually limits GHG emissions or it is just another theoretical economic construct which in reality depends on perfect markets and effective balancing of demand and supply of trading allowances and permits. Another problem with carbon pricing, especially carbon tax is the socio-political challenge of curtailing pass-through costs on final energy (gas and electricity) consumers. Hence the question- who eventually pays for the ‘charge’ on carbon? According to the International Energy Agency (IEA), the main reasons for low carbon prices generally includes: (i) economic downturn which led to lower-than-anticipated emissions, resulting in a surplus of emissions allowances; (ii) the socio-political challenge of setting tight emissions cap or high carbon prices vis-à-vis industrial competitiveness and rising consumer electricity prices; (iii) flattening or falling electricity demand (resulting in reduced demand for ETS allowances) due to the positive effects of energy efficiency policies in many jurisdictions.[11]

In comparing carbon tax with subsidies as plausible market-based mechanisms for the US, it has been posited that: “A carbon tax is superior to subsidies for carbon-free energy sources [e.g. renewables] in two important respects. First, it has the opposite effect on the budget deficit. While subsidies increase the deficit, a carbon tax would decrease the deficit. Second, it is much easier to design and to implement. To be effective, a carbon tax need only deter consumption of hydrocarbons. Consumers are left with complete discretion with respect to the ways in which they reduce their consumption of hydrocarbons. For example, by increasing the efficiency of their use of energy or by substituting for hydrocarbons some mix of carbon-free fuels like wind power, solar power, or nuclear power.”.[12]

Notably, in most market and developed economies, who also happen to be the leading GHG emitting countries seemingly due to high energy utilisation and industrialisation, there has been a general disenchantment with the interventionist and seeming highhandedness of traditional regulatory forms. Consequently, there has been a preference for more deregulation and to adopt alternative regulatory approaches which encourages the desired behaviour by economic and financial incentives rather than by legal compulsion or sanctions. In this regard, such incentives can be: (i) negative i.e. the conduct is legally unconstrained unless the a firm chooses to act in an undesired way, then it must pay a charge e.g. carbon price; or (ii) positive i.e. if a firm chooses to act in a desired way it is awarded a subsidy or allowed a more cost-efficient tariff such as feed-in tariffs for renewables or energy conservation.

The apparent flexibility of market-based instruments should incentivize innovation and technological development. What it, however, does not guarantee ipso facto is accountability and trust unless such factors are built into the market structure and framework. It has also been argued that while the conventional command-based regulatory approaches may lead to more uncertainties about the apprehension, prosecution, and level of sanctions; market and economic instruments, on the other hand, could provide more a definite and predictable level of compliance motivating charges and payments. As far as developed market economies are concerned, it appears there is strong argument in favour of placing a price or a charge on energy-related GHG emissions. Although the main caveat or pragmatic concern is the credibility of the carbon emissions market, and whether such approaches will effectively curtail negative environmental and climatic impacts without imposing avoidable costs on operators and energy consumers. Also, as inquired earlier, who pays for the price of carbon emissions in an increasingly international gas supply and energy context?   

[1] This paper will be published in a forthcoming 2017 issue of the Houston Journal of International Law.
[2] Brittany A Harris, 'Repeating the Failures of Carbon Trading' (2014) 23(3) Pac Rim L & Pol'y J 755 – 793; the International Energy Agency (IEA), ‘Energy, Climate Change and Environment 2016 Insights’ (IEA Publications, 2016) 1 – 133; Adam Whitmore, Can Emissions Trading Produce Adequate Carbon Prices? Energycollective, January 23, 2017.
[3] Energy industry related GHG emissions include CO2, methane (CH4) from natural gas production and nitrous oxide (N2O). These gases are quantified in terms of their global warming potential relative to CO2. For instance, gas flaring and venting is one of the main hydrocarbon exploration and production processes with environmental implications to the extent that CH4 is one of the main components of natural gas. Flaring is the controlled burning of natural gas produced in association with oil in the course of routine oil and gas production operations. Venting is the controlled release of unburned gases directly into the atmosphere. In addition, water management, including water usage during drilling and hydraulic fracturing, and the protection of surface and ground water during drilling, fracturing, production and disposal activities, is a central environmental issue for unconventional gas production. See the International Energy Agency (IEA), ‘Energy Policies of IEA Countries: The United States 2014 Review’ (IEA Publications, 2014) at 209 – 211; IEA, ‘Energy, Climate Change and Environment 2016 Insights’ (IEA Publications, 2016) 1 – 133.
[4] Proven gas reserves in the US has increased by almost three-quarters since 2000, up to 9.1 trillion cubic metres (or 323 trillion cubic feet) by end 2012, or the equivalent of more than 100 years of production at 2012 consumption rates. Natural gas production is projected to continue to increase over the period to 2040. Improvements in advanced crude oil production technologies, such as hydraulic fracturing, are widely expected to continue to lift domestic supply into the medium term. The renaissance that the oil industry is undergoing is largely the result of growth in light tight oil (LTO) production, a boom that is expected to continue until 2020 at least. According to Forbes, ‘The 25 Biggest Oil and Gas Companies in The World’30 March, 2016: “The U.S. has seven companies in the top 25, more than any other country” Other countries/companies in the list includes Russia’s Gazprom and Rosneft as well as China’s Petro China.
[5] Earthreports, Inc., et al. vs. Federal Energy Regulatory Commission, Dominion Cove Point LNG, et al, No. 15-1127 (D.C.  Cir., 2016)
[6] Ibid.
[7] The previous US government administration, signed and ratified the Paris Agreement on climate change on 22 April 2016. According to Platts, Fact Box: Global energy implications of Tillerson as top US diplomat, 1 February 2017 at <> accessed 09/02/2017, it seems the new administration may be more favourably disposed to Carbon Tax and intends “to keep a seat at the table of global climate talks to understand the impacts on Americans and US competitiveness”.
[8] See IEA, ‘Energy, Climate Change and Environment 2016 Insights’ ibid. In the power sector, carbon prices can influence the economic choices of investors, technology developers and consumers. They can moderate energy demand, deter new high-carbon investment and encourage low-carbon instead, and curtail the operation of existing high-emitting assets. Carbon pricing also plays a role in shifting corporate behaviour: by making climate change a financial rather than environmental reporting issue, it directly engages top management.
[9] Tade Oyewunmi, 'Emissions trading scheme and gas flaring in the United Kingdom Continental Shelf: a comment' (2011)(5) International Energy Law Review 193-199; Adam Whitmore, Can Emissions Trading Produce Adequate Carbon Prices? Energycollective, January 23, 2017. In Brittany Harris, Repeating the Failures of Carbon Trading, (2014) 23(3) Pacific Rim Law & Policy Journal pp. 755 - 793. the author also points to the de facto ineffectiveness of the carbon trading mechanisms as applied in the pacific rim countries. See also Richard J. Pierce Jr., ‘The Past, Present, and Future of Energy Regulation’ (2011) 31(2) Utah Environmental Law Review pp. 291-308.
[10] Ibid.
[11] IEA, ‘Energy, Climate Change and Environment 2016 Insights’ note 3 supra.
[12] Pierce Jr., note 9 supra.

A Nudge Towards Low-Emission Mobility - A Glance at the AFI Directive’s Approach to End Oil Dependence in the European Transport Sector

Sara Kymenvaara, Researcher, Climate Change Law, LL.M.

A famous metaphor on climate change politics refers to people’s unrelenting driving of SUVs, disconnected from the threat of climate change they are contributing to. Although a lot has changed on the political arena with the entry into force of the Paris Agreement on 4 November 2016, the transport sector’s current state of play, in certain aspects, still corresponds to the metaphor’s dystopian features. The sector plays, however, an important role in achieving the Paris Agreement’s climate change mitigation objectives.

In the EU, transport is set to contribute to the overall emission reduction target of 30% by 2030 from 2005-levels. The Commission has also set out a specific goal for the transport sector to reduce greenhouse gas emissions by 60% from 1990-levels by the year 2050.

How to achieve these ambitious objectives?  Transport remains the only sector in EU where GHG emissions have risen since 1990. Emission reductions achieved by new motor vehicles’ improved energy efficiency as a result of the EU Regulations on passenger cars and vans are forecast to be offset by increased mobility demand. In fact, it seems that the 60% emission reduction target for the transport sector will require a “systemic change” in the transport system and sector as a whole.

One of the key measures to achieve the necessary systemic change is to end the transport sector’s heavy reliance on fossil fuels and start using cleaner vehicles and fuels. To this end, a key EU-level policy instrument is Directive 2014/94/EU on the deployment of alternative fuels infrastructure (the “AFI Directive”), a main legislative measure to implement the Commission’s alternative fuels strategy.

Alternative fuels include, for example, electricity, hydrogen, natural gas and sustainable biofuels, and the AFI Directive’s main objective is to promote the construction of the infrastructure needed for the vehicles running on these fuels. However, installing infrastructure for vehicles using alternative fuels should correspond to the amount and types of vehicles in use. Such vehicles are not currently sold in amounts large enough to develop sufficiently competitive prices. Thus, the combination of high prices and lack of infrastructure discourages consumers from buying them.

The AFI Directive aims to end this vicious circle by obliging EU Member States to promote the development of their national markets for alternative fuels and set objectives and targets for the related infrastructure. The AFI Directive contains, however, no binding targets for infrastructure and the Member States’ objectives can be revised at a later stage. Thus, the AFI Directive ‘nudges’ rather than obliges Member States to develop markets and infrastructure for low-emission fuels and vehicles.

Concerning electric mobility, for example, the EU Member States must ensure that an “appropriate” number of public charging points are installed for electric vehicles in densely populated areas by 2020. The “appropriate number” is determined largely by the Member States themselves in relation to their national estimates of, and objectives for, the number of electric vehicles to be registered by 2020.

Achieving the ambitious emission reduction goals in the transport sector also requires that policy incentives that counteract these objectives are identified and abolished. For long, the tax benefit to diesel fuels in many EU Member States has created such an incentive, let alone the failure to consider diesel’s external costs of air pollution on human health. Over half of all newly registered passenger cars in the EU run on diesel while alternative fuel vehicles currently only account for 4.9% of all passenger cars in use.

The figures indicate that EU currently is far from achieving the objective of a Low-emission Mobility. Interestingly, however, certain estimates, mainly concerning Norway, predict that electric vehicles are set to conquer the markets extensively in the near future. However, Norway seems to be an exception to the otherwise increasing share of diesel vehicles in the rest of Europe; Norway’s share of electric vehicles in new car sales currently is currently almost 30%, while the same figure is 1.5% for Western Europe. In addition, hardly no other European country has a state budget robust enough to afford the fiscal incentives for electric vehicles that have stimulated their surge in Norway.

Against this backdrop, the national objectives and policy measures of the EU Member States to implement the AFI Directive will be essential for cutting oil dependence in the transport sector. If these national policy frameworks are sufficiently ambitious, the AFI Directive’s adaptive strategy may indeed solve the deadlock concerning lack of infrastructure and alternative fuel vehicles’ market penetration – and thus contribute to the decarbonisation of the transport sector within the timeframes set out by the EU’s climate policy objectives.

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