European Union Prepares for Leadership Role at December UN Climate Change Conference in Copenhagen

The European Union firmly occupies the leadership position with regard to addressing climate change. Despite the usual mantra one often hears about U.S. leadership and how it is simply impossible for the Europeans to have eclipsed the U.S, facts are facts and the facts do not reflect a story of American leadership on this issue.

While the U.S. federal government twiddled its thumbs, so to speak, during the administration of George W. Bush (and with no small amount of help from more than a few Democrats slavishly beholden to conventional energy interests), the EU has been ambitiously getting on with its policies. Craig Parsons, a professor at the University of Oregon, has described it this way: "The European Union has established itself as the world's leader on environmental issues." ("EUSA Review Forum," EUSA Review, Summer 2009, p. 2.)

For instance, late last year the EU adopted an ambitious Climate and Energy package calling for the economic giant (despite what one – including most Americans – might think, the EU is the largest single market in the world) to reduce carbon emissions by 20 percent based on a 1990 baseline by 2020 as well as generate 20 percent of its total energy consumed from renewables by 2020 while improving energy efficiency by 20 percent by that year.

And the U.S.? Missing in action on nearly all counts.

Thus “in the pole position” is just where the EU wants to be in the run-up to the UN Conference on Climate Change, to be held in Copenhagen in early December.

To get a better sense of how the Council of the European Union will advocate for the EU’s positions at the meeting, I met last week with a key figure in the Council’s secretariat, Wolfgang Ploch, an economist who is head of unit for the environment portfolio. Mr. Ploch is a “master of EU environmental decision making” as described by a colleague.

As those of you who regularly read this blog are well aware, EU environmental law is of special interest to me. And so it was indeed a pleasure to meet Mr. Ploch.

Before describing the EU’s preparations for Copenhagen, he explained that in the environmental sphere the Council shares legislative authority with the European Parliament (EP). The role of his office is to follow legislative proposals, which are made by the European Commission, through the process of Council and EP deliberation and negotiation. The Council secretariat, which works for the EU’s 27 member state governments, serves as the “institutional memory” for the Council. The secretariat provides “documents and summaries and suggestions for potential compromises” as well as issues summaries of Council meetings. He noted, however, that the president (which rotates at six month intervals and is currently held by Sweden) of the Council, not the secretariat, provides the political leadership associated with legislative compromises.

In matters that are particularly controversial, the secretariat will be involved in negotiations with the Council and the EP.

At this point, the conversation switched to the upcoming Copenhagen meeting. Because Copenhagen involves an international environmental agreement, the position of the EU will be based on the conclusions of the 27 member states. As such, the EP will play little – effectively no – formal role in determining the EU’s negotiating position.

The negotiating position, which will be “consensual” among the member states, is not “legislative but political,” he pointed out. The aim will be to prepare in the weeks between now and December a compilation of “Council conclusions,” which will form the basis of the EU’s position. That position will provide the negotiating mandate for the Swedish Environment Minister, Andreas Carlgren, who will co-lead the EU delegation.

The other co-leader will be the European Environment Commissioner (it was unclear as of this posting whether that position will be filled by current commissioner Stavros Dimas or a newly appointed commissioner; all of this down to whether a new college of commissioners has been nominated and confirmed by the time of Copenhagen).

The Swedish Minister and the European Environment Commissioner will together lead the EU delegation since the subject matter of the conference – an international environmental agreement – is considered one of “joint competence” between the Council and the Commission. The Commission is particularly valuable in these types of situations because of its “technical expertise” on climate change, something that does not typically exist within the Council secretariat.

Issues that come up for the first time at Copenhagen will be addressed on the spot. In the mornings and evenings of the Copenhagen conference, all 27 member state environment ministers will meet to discuss on-going events and to craft common Council positions.

While the years of the administration of George W. Bush were marked by considerable on-going tension between the U.S. and EU regarding climate change, the hope in Brussels early this year was that the new administration of Barack Obama would reverse the course charted by his predecessor. But anyone who has followed American politics knows that things are not always as they seem.

“The EU was very relieved at the first of the year (2009) when it appeared that the U.S. position was moving in our direction,” he said. However, the intervening months have been -- in my characterization not his – disappointing for green campaigners. “The question now is whether there might be a [legislative] delay and if U.S. delegates [to Copenhagen] will be reluctant to sign a far-reaching or detailed agreement. We are watching this very carefully. We know there is a political process to take place in Washington.”

Similarly, John Bruton, the European Union's Ambassador to the U.S., recently told the London Daily Telegraph (as reported by The New Yorker magazine), "Is the U.S. Senate really expecting all the other countries to make a serious effort on climate change at the Copenhagen conference in the absence of a clear commitment from the United States?" ("Leading Causes," The New Yorker, Oct. 5, 2009, p. 24.)

Diplomatically put by both Mr. Ploch and Ambassador Bruton, I thought, but Washington is swimming in special interest money that is fighting hard to maintain the status quo. And then there are the representatives and senators who dispute whether climate change is even taking place.

Setting aside my observations, what the EU is hoping for according to Mr. Ploch is that the U.S. delegation “could politically be relatively precise” on what will happen in the U.S. and what the U.S. will eventually support even if no detailed agreement is reached at the conference.

Meanwhile, other big issues being worked on at EU level:

• Carbon leakage
• Revising the Waste Electrical and Electronic Equipment (WEEE) measure
• Revising the Reduction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHas) directive

As we concluded our chat, Mr. Ploch pointed out that in many environmental areas – e.g., air pollution, waste, water – EU member states have ceded much of their sovereignty to the Union. Consequently, the member states are “implementing” directives that have been agreed to in Brussels and are “enshrined in Community legislation.”

I could go on and on about EU environmental law, but there is not time at the moment. However, if you share my interest in this intriguing – and extremely important area – think about registering for “EU Environmental Law & Policy” course, which I teach in the January-April semester. Insofar as I know, DU is the only law school in the country that offers this course on a yearly basis and has done so for five years now. To fully understand the state-of-the-art of environmental law, understanding EU environmental law is fundamentally important.