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Verfassungsblog: On Matters Constitutional

This article examines the robustness of the architecture of European energy and climate governance and the instruments developed to execute climate governance based on EU-wide targets and the ambition of ‘net-zero’ by 2050. Its primary focus is on the quality of the European energy and climate governance process.The Commission’s primary task is to monitor closely national efforts to achieve the EU’s binding targets for example on energy efficiency, greenhouse gas (GHG) emission reduction and renewables production, to report regularly on progress or lack thereof. Although a considerable literature on climate governance has now evolved its focus is primarily on the tools available to the Commission to realize the Union’s climate and energy governance strategy in the absence of legally binding national targets. Many important and central questions about this governance process remain largely unanswered and unresolved. Legally binding union-wide climate targets are embraced by the new EU Climate Law of 2021, and various measures to promote renewable energy, energy efficiency and emission reduction are expressed to be ‘legally binding’ on the European institutions. But what does this mean in practice – especially in the current ‘energy emergency’ situation? Are there any effective legal constraints if the Commission’s actions or its failure to act is likely to imperil the timely realization of these ‘binding’ European wide targets. The first part of this article analyses the climate and energy governance and assesses the Commission’s role and responsibilities. Two additional and inter-related instruments of European ‘net zero governance’ are dealt with in the second and third parts. These are the reliance on delegated acts (part two) and the use of state aid control (part three). The scope of the Commission’s discretion when drawing up delegated rules has become an essential element of the ‘net zero’ governance process. An assessment of the application of the Treaty state aid rules to national schemes to support fossil fuels provides useful legal as well as policy insights. It serves as an important testing ground for policy coherence and continuity in pursuing the Union’s climate goals. This assessment contributes to a practical appraisal of the quality of governance from the perspective of this article – in terms of the scope of discretion open to the Commission to continue to approve such subsidies even in the light of the Climate Law’s binding targets.

La regulación es un elemento definitorio de cualquier sistema de organización social; consecuentemente, mediante la presencia de reglas y del esfuerzo por aplicarlas reconocemos la existencia de un orden social. Con independencia de que la cuestión sea el control de la moralidad sexual, la autorización de drogas o la imposición de un impuesto, el centro de la actividad regulativa permanece constante

This chapter considers the application of the Treaty state aid rules to scrutinize funding of national capacity remuneration mechanisms. State aid control has been a key instrument to ensure national financial support to ensure generation adequacy does not frustrate the over-riding objective of completing the internal energy market. The Commission’s has used its powers to launch a sector- wide inquiry into support for CRMs, and has subsequently adopted detailed ‘soft law’ guidelines to assess the compatibility of national support measures to promote generation adequacy and reliability. Since 2014, it has adopted several controversial decisions—some of which have now been subject to challenge before the CJEU. The role of the guidelines to harmonize national approaches to the need for CRMs have to some extent been overtaken by legislation but many open questions remain—even following the recent adoption of a new set of guidelines at the end of 2021.

Should the carbon price be high to stimulate climate-friendly technologies or should it be low to realize inexpensive emission reductions? This ‘carbon price paradox’ is unraveled for the EU on the basis of legal, economic and political arguments. Legally, the primary aim of the EU ETS Directive is to promote cost-effective emission reductions. Economically, the rate of emission reduction in the EU ETS and to an increasing extent also its indirect impact on technological innovation are not so much determined by the level of the allowance price, but rather by the rate at which the emission ceiling falls. Politically, a lower carbon price creates room to lower the emission ceiling more quickly. In sum, society should welcome a low carbon price.

Hydrogen Networks are expensive and, at times, technically challenging to build. Yet, the regulation of hydrogen networks is in full swing across Europe, as hydrogen is key in energy policy agendas across the European Union. While the technical aspects of hydrogen usage and the transition to a hydrogen economy become increasingly clear, the legal framework that would be required to facilitate this transformation remains underdeveloped. This chapter briefly sketches the current state of the art when it comes to both EU hydrogen policy and the emerging EU’s regulatory framework for hydrogen networks. The chapter also includes a brief example on how hydrogen networks are regulated in the EU’s biggest Member State, Germany. It finds that, while legal frameworks are increasingly taking account of hydrogen networks, essential parts of the regulatory framework merely exist in draft form and/or require further elaboration in the years to come. Martha Roggenkamp’s substantive works on the regulation of natural gas networks will remain an important focal point for the development of a legal framework covering the ‘new world’ of hydrogen networks

This the Editorial Preface to the book "A Force of Energy", focusing on the academic career and accomplishments of Emeritus Professor Martha Roggenkamp.

The public energy company might experience a serious come-back in the Dutch energy sector. The ideas that drove (local) governments to privatise a few decades ago now seem to have been replaced by the idea that public energy companies could fulfil a role in the energy transition. Public energy companies can take into account social or community interests that commercial companies not always do and they allow local governments the opportunity to exert influence, for instance when developing renewable energy projects or when rolling out heat networks. however, they do not always operate at the lowest societal cost. Therefore, each time when a public energy company is founded or expanded, it should be reflected whether this serves the public interest and how the risks of the project can be mitigated.

In de energietransitie staat het vertrouwen onder druk tussen burgers onderling, tussen burgers en overheid, en tussen overheden onderling. Een analyse van de casus van twee windparken, die als schoolvoorbeeld gelden van hoe het niet moet, maakt duidelijk wat er in termen van vertrouwen mis kan gaan. Inmiddels zijn belangrijke stappen gezet om omwonenden meer tegemoet te komen; denk aan de toegenomen aandacht voor proces- en financiële participatie. Maar daarmee is het vertrouwensprobleem nog niet opgelost.

The term ‘energy sharing’ was introduced for the first time in EU energy legislation under the Clean Energy for All Europeans package. In particular, energy communi-ties need to be allowed to share energy within the community. while it seems that the term has been deliberately introduced as a new activity, the directives provide little guidance about what it exactly entails. On the basis of a brief literature review on the concept ‘sharing’ and the overall framework and objectives of the directives, this contribution explores what energy sharing could mean and whether and how it could include a ‘caring’ component for an inclusive energy transition.

Regardless of decades of social mobilisation, scientific research and political declarations to act against climate change, greenhouse gases emissions are spiralling up and are sending us towards a disastrous climate situation in the decades to come. Research shows that relying on a green growth strategy to avoid this fate is at best a gamble. Therefore, a much safer way to tackle climate change is to follow a degrowth strategy, relying on a steep reduction in energy and materials consumption, starting with developed countries. The implementation of such a strategy needs to be reflected in the law, hence also in EU energy law. This would require questioning existing principles, targets and instruments in order to increase the climate ambition level and to ensure targets can be reached on time.

The North Sea has long been the energetic backbone of the surrounding countries and its hydrocarbon resources have enabled economies to grow. however, faced with an unsustainable level of greenhouse gas emissions, as well as with the deple-tion of hydrocarbon resources, the North Sea is described as a ‘sea in decline’. The coming decades will see two parallel developments in the North Sea: major invest-ments will be needed to decommission disused hydrocarbon assets while at the same time renewable energy projects will be developed. The question that arises is what legal barriers such a transition entails and how the integration of a renewable energy system in the North Sea should be regulated.

This book is a Liber Amicorum for Martha Roggenkamp, Professor of Energy Law at the University of Groningen, the Netherlands. The chapters in this book celebrate her unique contribution to energy law. Martha Roggenkamp is a true force of energy, both personally and professionally. Her chair in energy law at the University of Groningen was the first in the Netherlands. She co-established the Dutch Energy Law Association and co-founded the Groningen Centre of Energy Law and Sustainability. With a formidable range of seminal publications, building on a large number of externally funded research projects, and of course her hearty laugh, she is one of the leading women in energy law in the Netherlands, in Europe and beyond. The chapters in this book showcase the diversity of the subject matter, the high academic standards as well as the connections that Martha Roggenkamp has nurtured across decades and continents.