The Role of Law and Institutions in Shaping European Climate Policy

Mehling et al. (2013)_The Role of Law and Institutions

Institutional and legal implications of the current climate policy instrument mix

This report provides a conceptual, a legal and an institutional overview of the European Union as well as three Member States – Germany, Poland and the United Kingdom – to highlight prominent regulatory approaches. The three Member States were chosen for their contrasting characteristics: they represent different legal systems, different approaches to governance, and different historical attitudes towards certain regulatory approaches. Besides arguably differing in their overall approach to climate policy, they have chosen different instruments with which to accomplish EU climate and energy provisions. Lastly, while the United Kingdom and Germany are “old” Member States, Poland is one of the “new” Member States of the EU.

In light of this diversity among (and evolution of) climate and energy policy approaches in the respective countries, the work package extracts certain trends and patterns. Policymakers can be advised to take these aspects into consideration:

Economic theory provides useful criteria such as environmental and cost-effectiveness to guide the choice of climate policy instruments. In practice, however, such abstract criteria play a limited role only, and need to be complemented by political, legal and institutional considerations to understand real-life instrument choices.
Using new regulatory approaches can trigger legal conflicts. The settlement of such conflicts comes at economic and possibly political cost and can delay implementation of a regulation. On the other hand, the resulting court rulings can provide clarity for future regulation as they define the new approaches’ boundaries and options.
Depending on a government’s administrative divisions, a mix of different entities (e.g., ministries) can be responsible for different parts of a policy – this is particularly true for climate policy, as it is so broad in scope. Such splits in competencies can lead to institutional conflicts that impede the pace and coherence of implementation of national policy goals or EU directives.
The subnational level is essential for implementing regulations in some Member States.
Procedural considerations are important - the way regulations are passed (e.g., majority vote instead of unanimity) can impede the political will to bear political or economic costs, e.g. of implementing an EU directives.

Attachment:

Mehling et al. (2013)_The Role of Law and Institutions.pdf

Citation:

Mehling et al.. 2013. The Role of Law and Institutions in Shaping European Climate Policy. Institutional and legal implications of the current climate policy instrument mix. CECILIA2050 WP2 Deliverable 2.9. Berlin: Ecologic Institute.

Funding:

European Commission

Authors:

Michael Mehling, Ecologic Institute, Dr. Camilla Bausch, Ecologic Institute, Lena Donat, Ecologic Institute, Elizabeth Zelljadt, Ecologic Institute

Year of publication:

2013

Number of pages:

	Executive summary	8
1	Introduction	10
1.1	Background	10
1.2	Objectives	11
1.3	Method and Selection of Member States	12
1.4	Focus and Limits of the Study	12
2	Parameters of Instrument Choice: Conceptual Approaches and the Role of Law and Institutions	14
2.1	Conceptual Criteria of Instrument Choice	14
2.2	Instrument Choice and the Role of Law and Institutions	15
3	European Union	19
3.1	General Structure of the European Union	19
3.2	Climate Policy in the European Union (the past and present)	21
3.3	Prominent Policy Choices	24
3.3.1	Carbon Pricing	25
3.3.2	Promotion of Renewable Energy Sources	28
4	Germany	31
4.1	Climate policy in Germany (past and present)	31
4.2	Legal and institutional structure of Germany	33
4.2.1	Overview	33
4.2.2	Executive branch	33
4.2.3	Legislative branch	34
4.2.4	Judicial branch	36
4.3	Regulatory tradition	37
4.4	Conflicts and challenges	38
4.4.1	Different regulatory approaches	38
4.4.2	Different regulatory planes	39
4.4.3	Conflict of policy instruments and basic rights	40
4.4.4	Conflict of policy instruments with EU law	41
4.4.5	Conflicting objectives	41
5	Poland	43
5.1	Climate policy in Poland (past and present)	43
5.1.1	Mitigation record and future plans	44
5.1.2	Climate of conflict: social, economic, and political context	46
5.2	Institutions and political structure	47
5.2.1	Executive branch	48
5.2.2	Legislative branch	50
5.2.3	Judicial branch	51
5.3	Regulatory tradition	51
5.4	Conflicts and challenges	53
5.4.1	Constitutional conflict	54
5.4.2	Conflicting regulatory planes	54
5.4.3	Regulatory approach, “soft” conflicts	57
6	United Kingdom	58
6.1	Climate policy in the UK (past and present)	58
6.2	Legal and institutional structure of the United Kingdom	60
6.2.1	Overview	60
6.2.2	Executive branch	62
6.2.3	Legislative branch	63
6.2.4	Judicial branch	64
6.3	Regulatory tradition	65
6.4	Conflicts and challenges	67
6.4.1	Different regulatory approaches	67
6.4.2	Different regulatory planes	68
7	Overview	71
8	Conclusions	73
8.1	Regulatory approaches change	73
8.1.1	New approaches can trigger legal conflicts	73
8.1.2	Innovative conflict resolution mechanism emerged	74
8.1.3	Path dependencies can be a risk and an opportunity	74
8.1.4	The freedom to test various approaches can be fruitful	75
8.2	The real regulation tends not to be the perfect one	75
8.2.1	Scope of regulation can lead to conflicts among institutions	76
8.2.2	Conflicting goals limit options for regulation	77
8.2.3	(New) Member States need incentives for implementation	77
8.2.4	The sub-national level should be taken into account	78
9	References	80
	Literature	80
	Personal correspondence / expert interviews:	90