This book addresses the conflict between climate change, other environmental concerns such as biodiversity, and international trade, focussing on the relationship between climate change mitigation and biodiversity protection in the bioenergy sector, taking into account the specific situation for imports from developing countries. The focal point is the sustainability criteria enacted by Directive 2009/28/EC (the so-called Renewable Energy Directive - RED). The document is divided into 6 parts: Part I describes the regulatory challenges of the use of bioenergy, considers the conflict between bioenergy and environmental and trade interests and also other environmental concerns, and introduces the sustainability criteria. Part II assesses the substance of the Renewable Energy Directive’s sustainability criteria for biofuels and bioliquids and suggests possible reforms. It details how the substance of the criteria is intended to address the conflict between climate change mitigation and other environmental concerns, addressing the scope of application, the requirements on the climate balance as well as the exclusion of certain areas from cultivation. Part III examines the compliance control mechanisms employed to ensure that the substantial criteria described in part II are observed. Part IV explores the compliance of the sustainability criteria with higher-ranking law, specifically European law and international trade law, which form the framework under which the sustainability criteria have been enacted, providing both minimum standards and ceilings for the drafting of the criteria. Moreover, it places the sustainability criteria in the context of international environmental and energy law and assesses compliance in this respect. Part V summarises the results and provides an outlook on future bioenergy policy.
This book has been awarded with 3 important academic prizes: the Dissertationspreis 2013 der Gesellschaft für Umweltrecht, the Dissertationspreis 2013 der Universität Bremen and the Dissertationspreis 2013 der rechtwiss Fakultät Bremen.
List of Abbreviations
Glossary
Introduction
Part I Foundations
Chapter 1 The Regulatory Challenge of Bioenergy
1.1 Biomass for energy
1.1.1 Terminology
1.1.2 Advantages of bioenergy use
1.1.3 The European renewable energy targets and the necessity of imports
1.1.4 Summary
1.2 Interests to be balanced in climate change mitigation
1.2.1 The notion of climate
1.2.2 The environmental integrity of climate change mitigation
1.2.3 Socio-economic impacts of bioenergy
1.2.4 The specific situation of exporting countries
1.2.5 Conclusion
1.3 Introduction to the sustainability criteria
1.3.1 Legislative procedure and legal basis
1.3.2 Scope and legal consequences
1.3.3 GHG emission balance
1.3.4 The exclusion of biodiverse areas
1.3.5 Agricultural standards
1.3.6 Compliance
1.3.7 Reporting requirements and reform
1.3.8 Summary
Part II The European Sustainability Criteria
Chapter 2 Scope of Application
2.1 Types of bioenergy
2.1.1 Imported and domestic
2.1.2 Biofuels and bioliquids
2.1.3 The exclusion of solid and gaseous bioenergy
2.1.4 The exemption of waste and residue
2.2 The twofold incentive for compliance
2.2.1 National renewable energy targets
2.2.2 Selected support schemes
2.3 Analysis
Chapter 3 The Greenhouse Gas Emission Balance
3.1 The level of greenhouse gas emission savings
3.1.1 The benchmark
3.1.2 The fossil fuel comparator
3.2 The calculation of the GHG balance
3.2.1 Life cycle assessment
3.2.2 Major issues and uncertainties
3.2.3 Reduction of the pressure on land
3.3 Analysis
Chapter 4 Direct Land Use Changes: No-Go Areas
4.1 Areas designated for nature conservation
4.1.1 Areas designated for nature protection purposes
4.1.2 Area designation at for the protection of rare, threatened or endangered ecosystems or species
4.2 Forests
4.2.1 Primary forest
4.2.2 Continuously forested areas and woodland
4.3 Highly biodiverse grasslands
4.3.1 Grasslands
4.3.2 Natural or non-natural
4.3.3 Highly biodiverse
4.4 Wetlands & peatland
4.4.1 Wetlands for carbon storage
4.4.2 Peatland
4.5 The conditionality of area exclusions
4.6 The reference year
4.7 The identification of pertinent areas
4.7.1 Remote sensing
4.7.2 Plans, registries and databases
4.7.3 On-site assessment
4.7.4 Analysis
4.8 Analysis
4.8.1 The consistency of the no-go areas
4.8.2 Room for interpretation
4.8.3 Limitations of the ecosystem approach
4.8.4 Unresolved issues
Part III Compliance Control
Chapter 5 Recognition Mechanism
5.1 The Commission decision
5.1.1 Bi- and multilateral agreements with third countries
5.1.2 Voluntary schemes
5.1.3 Requirements for recognition
5.1.4 The decision-making process
5.1.5 The scope of the decision
5.1.6 Conclusion
5.2 Member States’ implementation
5.3 The meta-standard approach
5.3.1 Practical advantages
5.3.2 Legitimacy
5.3.3 Conclusion
Chapter 6 Introduction to Certification Systems Touching on Biomass
6.1 Actors
6.2 Geographical application
6.3 The object of the standard
6.4 Governance structure of certification schemes
6.4.1 The distribution of membership
6.4.2 Types of membership and observers
6.4.3 Institutions
6.5 The standard-setting process
6.6 Conclusion
Chapter 7 The Standards of Certification Systems
7.1 Principles and criteria
7.1.1 Scope of application
7.1.2 Compliance with national laws and regulations
7.1.3 GHG emissions
7.1.4 Environmental standards
7.1.5 Impacts of agriculture
7.1.6 Socio-economic standards
7.1.7 Compliance requirements on operators
7.2 Chain of custody
7.3 Analysis
Chapter 8 Certification as a Means of Compliance Control
8.1 Certification and product claims
8.2 The requirements on certification bodies
8.3 Requirements on auditors
8.4 The certification process and auditing
8.5 Analysis
8.5.1 The impact of the recognition process
8.5.2 Conformity assessment v. impact of certification systems
Part iv Compliance With Higher Ranking Law
Chapter 9 Compliance with European Law
9.1 The legal basis
9.1.1 The potential legal bases
9.1.2 The choice of legal basis
9.1.3 Subsidiarity and proportionality
9.1.4 Conclusion
9.2 A high level of environmental protection
9.2.1 Definition
9.2.2 Tools in determining the level of protection
9.2.3 The effort required
9.2.4 Conclusion
9.3 Opting up
9.3.1 Applicability
9.3.2 Conditions for more stringent national criteria
9.3.3 Conclusion
Chapter 10 International Environmental Law
10.1 Contracting party: EU or Member States
10.2 The application of the sustainability criteria to imports
10.3 International energy law
10.4 The Convention on Biological Diversity
10.5 The Convention on Wetlands of International Importance
10.6 Hybrid goals: the International Tropical Timber Organisation
10.7 The climate change regime
10.8 Conclusion
Chapter 11 Compliance With World Trade Law
11.1 The subsidies regime
11.2 The General Agreement on Tariffs and Trade
11.2.1 Internal measure or import regulation
11.2.2 “like product”
11.2.3 No less favourable treatment
11.2.4 Justification under Art. XX GATT
11.3 The Agreement on Technical Barriers to Trade
11.3.1 Application next to GATT
11.3.2 Technical regulation and conformity assessment
11.3.3 No less favourable treatment of like products
11.3.4 Legitimate objectives under Art. 2.2 TBT-Agreement
11.4 Conclusion
Part V Conclusions
Chapter 12 The Impact of the Sustainability Criteria
12.1 The need for integration
12.2 The environmental integrity of imports
12.2.1 The GHG balance
12.2.2 Biodiversity in resource states
12.2.3 Open issues
12.2.4 The issue of leakage
12.3 The interaction with transnational law
12.3.1 Certification and third countries
12.3.2 Benefits of the recognition mechanism
12.3.3 Fragmentation and harmonisation
12.4 Sustainability criteria and trade
12.5 The way ahead
Bibliography
Table of Cases
Table of Legislation and Other Regulatory Instruments
Summary