My PhD project is concerned with the legal content and application of the polluter pays principle in EU/EEA climate mitigation law, with a particular focus on its consequences for the carbon capture utilization and storage industry.
The overarching research questions are the following: How does the polluter pays principle and its application in secondary law governing 1) the incentives offered, and 2) the cost allocation of mitigation towards net zero and net negative emissions?
I primarily apply a legal dogmatic method while simultaneously including analysis from law and economics wherever the legal requirements imply such considerations. The PhD position is financed by the Norwegian CCS Research Center.
Overview of the project
The European Climate Law sets forth a momentous mitigation target of net zero’ emissions by 2050 and an aim of negative emissions thereafter. In essence, the EU imposes upon a single generation of Europeans the burden of decarbonising a carbon-based economy that was incrementally built since the industrial revolution. The technical means exist. The critical question is: who pays?
The body of law that comprise EU climate mitigation measures reflect the momentousness of the task at hand. The speed with these complex and consequential legal acts are enacted and amended risks obscuring a critical aspect of the measures set forth: who pays for mitigation towards net negative emissions and why? The question of who pays for climate mitigation is arguably consequential both in terms of environmental effectiveness – whether the measures set forth achieve the level of mitigation pursued – and in terms of whether the transition at hand is perceived as just’ and ‘fair’, potentially promoting popular support over time.
Within the EU legal order, the question of who should pay in terms of facilitating environmental policy objectives is not entirely left to the discretion of shifting political majorities. The Treaty on the Functioning of the European Union article 191 (2) sets forth that Union policy on the environment shall be based on certain principles, including the principle that the polluter pays. The preamble to the European Climate Law states that the Union’s and Member States climate actions should be guided by the ‘polluter pays’ principle established in the TFEU. To that end, the Commission boldly asserts that the ‘Fit for 55’-legislative package ‘translates the polluter pays principle into practice’. Nevertheless, despite the ostensibly central function of the polluter pays principle within EU climate law, scarcely any preparatory work nor legal act explicitly engages with whether, how or why the polluter pays principle is implemented or not.
Environmental principles, including the ‘polluter pays’ principle have been a debated topic among legal scholars since the infancy of EU environmental law and policy. Nevertheless, the intersection between the polluter pays principle and the prospective climate mitigation effort demanded by the European Climate law raise new and important questions of law.
In light of the foregoing, my project endeavors to answer the following: To what degree does the polluter pays principle set legal boundaries for the legislature in terms of managing greenhouse gas emissions? In particular, how does the interaction between the principles that the polluter should pay, proportionality an equal treatment play out within the context of facilitating net zero emissions by 2050? Does the polluter pays principle apply to the cost allocation of net negative emissions beyond 2050?
Principles generally, and environmental law principles specifically, are often referred to as important building blocks of a nascent areas of law. Could there be an equally – if not more – important role to play for the polluter pays principle in terms of promoting much needed coherence and democratic legitimacy within the vast, complex and rapidly evolving area of climate law?
To enable an in-depth study of the current application of the polluter pays principle in EU mitigation law I focus on the interaction between the current application of the polluter pays principle and the rules regulating and incentivizing CCUS. Rules governing CCUS represents an interesting case study for two main reasons. Firstly, the rules governing CCUS illustrates both the potential and pitfalls of operationalizing the polluter pays principle to enable mitigation. Examples include the troubled path to incentivizing CCUS as a downstream mitigation option under the EU emissions trading system, the uncharacteristically strict obligation to provide financial security for any potential future CO2 leaks to obtain a storage permit under the CCS directive, the export of the polluter pays principle to incentivize CCUS globally through CBAM, the tension between the need for subsidies – such as State Aid – and the polluter pays principle, and the recent innovation of mandating oil and gas companies to provide for CO2 capacity under the Net Zero Industry Act.
There is no scholarship to date that comprehensively engage with the various questions set forth above. With this thesis I aim to fill that gap to better understand the role and functioning of the polluter pays principle in EU climate law. Moreover, there is arguably a need for an updated and rigorous review of the legal significance of the polluter pays principle in EU law generally. Eloise Scotford argues convincingly in her book on Environmental Principles and the Evolution of Environmental Law, that a key problem with scholarship on environmental principles so far is the tendency to over-generalise without sufficient attention to the legal context within which they appear, resulting in unsubstantiated assertions on the universal nature and function of environmental principles across jurisdictions. Scotford maintains that environmental law scholars need to be ‘attentive and detailed before they are big and bold’ to safeguard the legitimacy of environmental law and scholarship. With this project, I endeavor to take up that mantle by studying the legal significance of the polluter pays principle set forth in TFEU 191 specifically, and its implication for managing the greenhouse gas problem.
The project is topical in terms of a current initiative from the Commission: ‘Polluter Pays Principle – fitness check of its application to the environment’. Among the topics the fitness check will consider is whether EU and national policies ensure polluters bear the cost of measures to prevent, control and remedy pollution. The results of the fitness check will recommendations on how to better implement the principle.