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Showing posts from 2018

Groundbreaking Climate Case: The Urgenda-Appeal Verdict (The Hague Court of Appeal Case No 200.178.245/01) Case Comment

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On 9 October 2018 the Hague Court of Appeals issued a ground-breaking verdict in the appeals case Urgenda Foundation v The Netherlands, that has been discussed earlier on this weblog. The court of appeals upheld the intial verdict of 2015 and rejected the appeal of the Netherlands, ordering the state to achieve a level of reduction of greenhouse gas emissions by end-2020 that is more ambitious than envisioned by the state in its current policy. The Netherlands are now obliged by the court to reduce its greenhouse gas emissions by at least 25% by the end of 2020, compared to 1990-levels.  The decision is based on the duty of care under articles 2 (the right to life) and 8 European Convention on Human Rights (ECHR) (the right to family life, which also covers the right to be protected from harmful environmental influences). From a legal theory point of view the decision raises questions about the possible interpretation of the precautionary principle.

New Publication: Regulating Power-to-Gas in the Energy Union

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A new article titled `Regulating Power-to-Gas in the Energy Union` has been published in the Journal of Oil, Gas and Energy Law (OGEL).  The abstract can be found below and the article is available here.

NAFTA turns USMCA - What`s in it for Energy and the Climate?

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The Trump administration announced the end of more than one year of negotiations on a new trilateral agreement that will revamp the 25-year old North American Free Trade Agreement (NAFTA). The United States-Mexico-Canada Agreement (USMCA) shall be officially signed in November. But what is in it for energy and the climate?

`Card Blanche´ for Germany´s Dirty Coal ?

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By the end of 2017 / beginning of 2018 a sequence of state aid decisions on capacity mechanisms made headlines. Countries like France, Poland, Italy, Belgium and Germany received approval for their respective capacity mechanisms by the European Commission. However, it now emerged that Germany gained more favorable treatment than all other Member States concerning its highly polluting lignite power plants in these decisions.

One Global Cartel of Oil-Producers? OPEC and Non-OPEC Countries About to Formalize Cooperation

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According to the news agency Reuters an agreement on a new energy treaty has been reached yesterday between  OPEC countries and other major oil producers, like Russia, who are not members of OPEC. Internal sources confirmed that a draft charter is circulating that would unite all major oil and gas producers of the world under the umbrella of one organization.

Summer Break

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The Energy and Climate Law blog is on summer break to enjoy the sun and recharge batteries. The blog is returning with new analyses of energy and climate law developments by the end of August. Many thanks for your support and have a good summer time!

Aviation Industry Wants to Get Rid Of Their Obligations Under EU Emission Trading Scheme

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The aviation industry recently floated their idea to pull the industry out of the EU Emission Trading Scheme (EU ETS) with a new Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). The Council of the International  Civil Aviation Organization (ICAO) resolved the pillars of such an alternative scheme at its summit in Montreal atthe end of June, calling it a `landmark decision`.  However, questions are abound.

EU Agrees Upon Binding 32 Per Cent Target For Renewable Energy by 2030

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On 14 June 2018 the European Union reached a political agreement to introduce a legally binding renewable energy target of 32 per cent of total energy consumption across the Union. This target must be reached by 2030. The target will form part of the new recast Renewable Energy Directive that is currently in the legislative process of the EU, as part of the so called `Clean Energy for All Europeans` - packagage.

Southern Gas Corridor: Trans Anatolian Natural Gas Pipeline (TANAP) Opened

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The long-standing plan of the European Union to diversify its gas supplies received a boost yesterday, when a missing link of the so called Southern Gas Corridor, the TANAP-pipeline, has been officially opened by the presidents of Turkey and Azerbaijan. TANAP is the second of the three pipelines that cumulatively create the Southern Gas Corridor starting operations. The ultimate aim of the Southern Gas Corridor is to bring gas from Azerbaijan`s Shah Deniz gas fields to Europe to reduce import dependence on Russian Gas. The final leg of the corridor, the Trans-Adriatic Pipeline (TAP), however, has not yet been opened and questionsare abundant.

European Commission Cracking Down on Gazprom`s European Business - Case Comment AT 39816

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The European Commission issued a legally binding antitrust decision (AT 39816) yesterday that imposes a number of conditions on Gazprom to continue its business operations in Europe. Amongst them is the obligation for Gazprom to remove the infamous prohibition for customers to re-sell gas cross-border from Gazprom`s delivery contracts. The measures shall force Gazprom to end the practice of selling gas to different EU Member States at different prices. However, there are issues with the dcision that Gazprom is likely to seize upon.


First Part of `Clean Energy Package` finally adopted

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The European Council adopted a revision of the Energy Performance of Buildings Directive 2010/31/EU and parts of Directive 2012/27/EU on energy efficiency today after lengthy negotiations with the European Commission and the Parliament. This is the first tool of the `Clean Energy for All Europeans` package, initially proposed by the European Commission on 30 November 2016, that completed the legislative procedure and will now come into force. The European Parliament already adopted the revised directive one month earlier, on 17 April 2018.

Safety of German Offshore Windparks Questioned After Major Incident

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The first German offshore wind farm `Alpha Ventus´, located 45 km off the coast of the German island of Borkum, has been considerably damaged. At the beginning of April, the main parts of the gondola of one wind turbine broke off and fell 90 meters into the North Sea. The park features 120 structurally identical wind turbines that have been produced by the German manufacturer ADWEN. The reasons for the damage are entirely unclear, but a fierce debate on liability and the safety of offshore wind farms is already on its way in the north of Germany.

New Publication: The ´Hydrogen Economy´ in the United States and the European Union: Regulating Innovation to Combat Climate Change

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I had the honour to contribute a chapter to Donald Zillman, Martha Roggenkamp, Leroy Paddock and Lee Godden (eds). `Innovation in Energy Law and Technology´ (Oxford University Press, 2018). My colleague Prof. Joshua Fershee of West Virginia University and me explored the legal perspectives for the creation of  `Hydrogen Economies´ in the US and the EU. We used the example of fuel-cell cars and power-to-gas to illustrate legal possibilities and barriers. The book is available here. The introduction of the chapter is reproduced below.

Dutch Government Decides to Cease Gas Production From Groningen Gas Field - A Legal Perspective

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Europe`s largest onshore gas field in the province of Groningen, Netherlands, will be shut down by 2030, the Dutch government decided last thursday, 29 March 2018. The decision is the latest move in a more-than-decade long saga of resistance against gas production in the Groningen region. Earth tremors and quakes triggered persistent local opposition to gas production. The production company NAM is showing little appetite to challenge the decision in court.

The Quo Vadis Study on the EU Gas Regulatory Framework – What does it tell us? (and what not?)

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By Gijs Kreeft, PhD Researcher on the Regulation of Power-to-Gas at the Groningen Centre of Energy Law

The absence of a legislative proposal on the gas sector under the Clean Energy for All Europeans Package could be interpreted as a regulatory standstill in the EU gas market. Nothing, however, is less true. During the past 12 months, a deal has been struck between the European Commission and Gazprom through which the Russian gas giant committed itself to tune down its dominant behavior in Central and Eastern Europe, an information exchange mechanism has been established with regard to agreements in the field of energy by Member States with third countries (Decision (EU) 2017/684), a new Security of Supply Regulation (Regulation (EU) 2017/1938) has been adopted, and amendments to the 2009 Gas Directive have been proposed in light of North Stream 2. Earlier, in 2016, the Commission already decided on revised exemption conditions for the OPAL pipeline, capping the exemption for third par…

New Article `Wind Farm Waste in the EU, Denmark and the UK` published in OGEL 2 (2018)

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A new article titled `Wind Farm Waste - Emerging Issues with Decommissioning and Waste Regulation in the EU, Denmark and the United Kingdom` has been published in a special issue of OGEL. I had the pleasure of cooperating with Dr. Heyd Fernandes Mas and Ceciel Nieuwenhout, LLM for this. The abstract can be found below and the article is available here.

E.On and RWE are Reshaping the German Electricity Market

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Two of Germany`s biggest utility companies, E.On and RWE, yesterday announced plans to restructure their assets. Germany`s electricity market is liberalized, but still dominated by four big oligopolistic companies. Two of the four companies are now going to coordinate their activities even more to create monopoly-like structures in particular areas. According to the plans, RWE is only focussing on electricity production in the future, whereas E.On is going to deal only with electricity transmission and distribution as well as end-user supplies and will cease its electricity generation activities. The plans still need to be approved by European competition authorities and the German Federal Cartel Office. German municipalities reported to be highly sceptical of the deal.

German Federal Administrative Court Approves Of Diesel Car Ban - Cases BVerwG 7 C 26.16 BVerwG 7 C 30.17

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On Tuesday 27 February 2018, the German Federal Administrative court largely approved of measures taken in Duesseldorf and Stuttgart to ban Diesel cars from driving in particular areas of the cities. Earlier, lower administrative courts obliged the federal governments of North-Rhine Westphalia and Baden Wuertemberg to change their respective air quality plans, which feature measures to lower the NO2 concentration in ambient air in big cities. The two states appealed the decisions, but now lost in front of the Federal Administrative Court. The court pointed out that bans for Diesel cars in particular areas of German cities have to be implemented by the governments, but that such bans have to be proportionate.

German Federal Court of Justice (BGH) on Stricter Duties For Suppliers of Last Resort - Case Comment BGH VIII ZR 148/17

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The German Federal Court of Justice (BGH)  recently ruled on the responsibilities of electricity companies that are acting as `suppliers of last resort´ towards German electricity customers. Until now their responsibilities stopped at the meter in the house of customers. This is about to change in certain cases. The judgement can have repercussions for the appraisal of supplier of last resort-duties in other European jurisdictions.

Dutch Court Landmark Decision On Compensation Of Victims Of Gas-Extraction Induced Earthquakes

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By Joris Gazendam, LLM, PhD Researcher University of Groningen

On 23 January 2018 the Court of Appeal Arnhem-Leeuwarden ruled in a case between claimants living in the province of Groningen and the Nederlandse Aardolie Maatschappij (hereinafter: NAM). The case revolved around damages as a result of earthquakes which are caused by the extraction of natural gas in the province of Groningen. The main legal question was whether the owners of houses can claim compensation for the devaluation of their houses even if they do not sell their (whether or not physically damaged) houses.Normally, the financial loss for the owner of a house becomes visible on the moment of sale. In this case the owners explicitly wanted to be compensated even if they would not sell their house. The Court of Appeal ruled that an owner of a house can only once claim compensation for damages. Parties are free to decide on a reference date on which the depreciation is to be determined. On this date a real estate expert…

Oil Stocks Stand-Off: European Commission is taking Romania to Court

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The European Commission announced last thursday (25 January 2018) that it is initiating an infringement procedure against Romania in front of the Court of Justice. The Commission alleges that Romania failed to correctly implement and apply the Oil Stocks Directive (Council Directive 2009/119/EU). The current Romanian legislation prohibits the use of oil stocks as collaterals, i.e. assets offered to secure a loan. This prohibition could make it more difficult for economic operators to fulfil their obligation to hold stocks. According to the Commission, Romania has also incorrectly implemented the rules concerning the right of economic operators to delegate their obligation to hold stocks and the establishment of emergency procedures in the event of a major supply disruption. Romania says it already amended its laws, but needs more time.

A New Government For Germany – Preliminary Energy and Climate Plans Published

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In September 2017 Germany held general elections, but there still is no new government yet. After talks between the Conservatives (CDU/CSU), the Liberals (FDP) and the Greens broke down last year, Angela Merkel is trying to form a governmental `grand coalition´ between CDU/CSU and the Social Democrats (SPD). Both parties recently ended exploratory negotiations and issued a joint statement on 12 January 2018 that gives a first indication of Germany´s policy plans for the next 4 years. Although the paper is not yet a full-fledged coalition agreement, it nonetheless details the main policy lines that the possible new German government is intending to follow. So what does it have to say on energy and the climate ?