Kyoto Protocol and the European

¶ … Kyoto Protocol and the European Union have a long and important connection. The Protocol was designed to reduce carbon emission and grew out of the United Nations Framework on Climate Change. The United Nations Convention on Climate Change (UNFCCC) was a treaty that was the result of a gathering of nations held in Rio de Janeiro in June of 1992 (the United Nations). Under the terms of the UNFCCC, all nations signing the treaty were obligated to establish national programs intended to reduce greenhouse gas emissions. As part of the treaty the signing developed nations were also required to submit annual reports detailing their nation's progress. The hope of the Convention was that all nations would begin to stabilize their greenhouse emissions toward 1990 levels and to hopefully fully do so by the year 2000. It is important to note that the Convention made a distinction between developed, industrialized nations and still developing nations. The theory behind this distinction was the recognition that the developed nations were not only largely responsible for the greenhouse emissions that existed at the time of the Rio de Janeiro meeting but also had the institutional and financial capacity to develop the technology necessary to remedy the emissions' effects.

Although the concepts advanced by the conference were admirable the treaty failed to provide for any strong enforcement procedures and failed to establish any universal standards on greenhouse gas emissions. The weaknesses of the treaty arising from the international meeting in Rio de Janeiro were immediately recognized by the participating nations and the members of the European Union were aggressive in their efforts to close the treaty's loopholes. The goal of the European Union was to set legally binding limits on greenhouse emissions in regard to the industrialized nations. Further, it was the hope that discussion between the participating nations would result in marketing ideas that would lead to technological innovations that would lead to the cutting of the considerable costs related to emissions' control. The Kyoto Protocols were the direct result of the European Union's efforts.

When the final treaty documenting the agreement between the nations attending the United Nations Framework on Environment and Development was signed it was known that additional work would be necessary. The inherent problems in the initial treaty were known and a process was established to cure the treaty's deficiencies. The attending nations were more concerned with getting the process of environmental protection commenced than they were with the details of how this protection would be accomplished. The nations left Rio de Janeiro planning to meet at a future date to set up protocols that would set forth the specific details as to goals and enforcement procedures. These protocols would be established through annual conference of the parties (COP).

The first protocol meeting subsequent to the Rio de Janeiro meeting was held in Berlin in 1995 (Moltke). The members of the European Union pushed strongly for an agreement relative to establishing carbons emission standards and enforcement procedures but reaching a consensus on these points were unsuccessful. The following year another conference was conducted in Geneva but it was in the following year in Kyoto, Japan that significant achievements were finally made toward an international agreement. Unfortunately, the agreement was not met with universal acceptance as the United States which had been actively involved the process leading up to the Kyoto Protocol meeting failed to ratify the agreement. The United States failure to ratify caused the Kyoto Protocol to lose some credibility and created some friction between the European Union and the United States on the issue of environmental protection. Although the United States signed the Protocol, they never signed the Protocol. Facing pressure from oil companies and the auto industry, former President Bill Clinton never submitted the agreement to the Senate which was a requirement under the terms of the United States Constitution. The United States has still not signed the Protocol.

The passage of the Kyoto Protocol marked a significant achievement for the European Union. The European Union has been in the forefront of establishing high environmental standards for several decades and, although the Kyoto Protocol did not reach the level of environment controls that the Union was advocating, the Protocol was considered a start in the right direction.

The standards set by the Kyoto Protocol do not approach the environmental protections required by the European Union. The Union has made combating climate change, preserving biodiversity, reducing water and air pollution, and the use of responsible natural resources a priority for its members. Additionally, the Union has worked diligently to encourage the growth of any industries related to protecting the environment; industries such as solar energy, nuclear power, and alternative fuels.

Long before the Kyoto Protocols the European Union had attempted to enact measures that would serve to reduce greenhouse emissions. Beginning in 1972, the Union began addressing issues such as acid rain, the thinning of the ozone layer, land, water and air quality, and the disposal of solid waste. The Union had required that its members reduce their emissions to the levels demanded by the Kyoto Protocol before the Protocol was ever signed and since the ratification of the Protocol the Union has, on its own, enacted standards much stiffer than the ones required

The European Union's move toward being a trend setter in the area of environmental policy began almost immediately after its formation in 1993. Earlier, while still known as the European Economic Community, the Union members began expressing concerns that they should be adopting measures that addressed environmental issues both within the European community and internationally. As an organization, the Union attended the original Rio de Janeiro meeting where the United Nations Convention on Climate Change was enacted. At the Rio meeting, the subsequent meetings in Berlin and Geneva, and, finally, in Kyoto the Union was afforded status equal to all the other participating nations. Continuing its aggressive history of advocacy on environmental issues the Union took a leadership role in all the international meetings.

The problem that the Union has had since its beginning relative to its environmental policy is the fact that the strength of its advocacy has been heavily dependent on the Union's leadership at any given time. Under the terms of the Union's organizational treaties, the Union's presidency is held on a rotating basis between its respective members. As can be expected, there is often a difference of opinion between the Union members and their representatives as to the importance of environmental issues and it has been the pattern of the Union to adjust its positions in accordance with the views of the Union member occupying the presidency. The resulting change in policy has caused confusion in the international community as to what the Union's environmental position might be at any given time. On the whole the Union's policies on the environment are generally more stringent than most other nations but in an area where acrimony is ever present even a subtle difference in policy can have a significant impact.

Similarly, confusion is also caused by a structural anomaly in the Union. The Union has separate directors that control different aspects of the European Union. Two of these directorships govern the operation of the European trade and the operation of the Environment. Often, but not always, the trade director and environmental director may have differences on an environmental issue and, because the primary purpose of the Union remains its trade function, the trade director tends to possess more influence. Thus, on environmental issues that impact trade the position of the Union will likely favor the trade point-of-view.

In all, however, the European Union has been successful in being a strong advocate for environmental issues. The Union members, individually and as members of the Union, have enacted environmental controls and protections far more stringent than those of most other nations participating in the Kyoto Protocols.

Although the European Union has been granted nation status in the various United Nations meeting on environmental issues both before and subsequent to the Kyoto Protocols there is not always unanimity between the member nations making up the Union. The Union has been reluctant to issue regulations to its member nations on environmental issues and, instead, has relied upon the issuance of directives. The difference between the two is that directives are not self-executing, that is, they establish objectives for the member nations in the hope that they would enact legislation that would fall in line with the dictates of the Union directive. Directives, unlike regulations, do not supersede national law. Directives, unlike regulations, have no binding effect on the citizens of the individual member nations. In the area of environmental law, this has resulted in standards and applications varying from nation to nation throughout Europe. These obvious conflicts can create competitive advantages for companies attempting to avoid implementing expensive environmental safeguards.

Over time the European Court of Justice, the legal enforcement arm of the European Union, has taken it upon itself to minimize this unequal application of directives as they apply to businesses. The Court recognized the practical effect of having certain nations applying the Union standard in regard to an environmental protection and others not applying them. This recognition resulted in the Court's developing a principle to by-pass this discrepancy. This principle known as "the direct effect" has been applied by the Court in cases where the provisions of the directive are (i) sufficiently precise and clear, (ii) the alleged rights are unconditional, (iii) the provisions thoroughly define the legal relationship (implementation and application requirements), and, (iv) the time allowed to a Member State for implementation of the directive has expired. The practical effect of this application by the Court is to afford parties to any litigation the full legal rights set forth in the Union directive even though the specific nation involved has not enacted the directive as controlling law. Unfortunately, the Court of Justice has used the "direct effect" rule only in cases involving a citizen and a member nation and only when it benefitted the citizen and not the state. In essence, it has allowed the citizen to elect what application of the law he or she would prefer.

Beyond the authority of the Union to enter into environmental protection agreements with foreign nations and the authority of the members nations to enter into their own such agreements there is a third agency involved in the environmental arena inside Europe. This additional agency, known as the European Environment Agency, has been in existence since 1990. The purpose of this agency, which has no enforcement authority either inside or outside the borders of Europe, is to physically collect and analyze data regarding a variety of environmental concerns. Because the agency has no enforcement authority it is limited to providing technical and scientific support to the Union and its various member nations. In time, it is expected that this agency will be empowered with enforcement authority similar to that possessed by the United States Environmental Protection Agency but said action is still in the future.

As previously noted, the European Union has been active in the area of environmental protection since the inception of the Union. Over the years the Union has issued hundreds of regulations relative to the protection of the environment covering areas such as fish and wildlife, water and air quality, waste management, chemical use and disposal, and the use of nuclear energy. These directives also include the financing of educational programs, the formation of consumer advocacy organizations, and the organization of agencies intended to promote and/or implement specific sectors of the Union's environmental policy.

The European Union's role in the enactment, signing, and ratification of the Kyoto Protocols was a significant. Without the encouragement of the Union and it applying political pressure to a number of participating members who were less than enthusiastic regarding some or all of the provisions there is little likelihood that the international body would have agreed to even the provisions that were contained in the Kyoto Protocols. The European Union came into the Kyoto meeting expecting far stricter provisions but quickly adopted a more moderate position to ensure that they could get some guarantee of a movement forward relative to greenhouse emissions. Once the Union members left the Kyoto meeting they began immediately to work on adopting stricter standards within the European community. Under the terms of the Kyoto Protocol, signing nations were to attempt to reduce gas house emissions to 5.2% below the 1990 levels by 2012. The European Union nations, however, since the Kyoto Protocol have enacted legislation calling for its member nations to reduce their emissions by 20% of the 1990 levels. The Union's goal, consistent with its attitude for a number of years, was to now get the "rest of world to get on the same track," said EU Environment Commissioner Stavros Dimas (Dimas).

In their effort to encourage similar compliance by other developed nations such as the United States and Australia the European Union has offered to deepen its cut even further. Some have suggested that the Union might raise its emission cuts to 30%. The Union has also pledged to assist developing nations such as China or India and to encourage other developed nations to assist as well if the developing nations will agree to decrease their emissions as well.

Since its signing and ratification the Kyoto Protocol has met with both support and criticism. From the point-of-view of most of the European community and the European Union the Kyoto Protocol did not go far enough in setting environmental protection standards while the other nations such as Japan and the Netherlands feel that the standards are too stringent and that what the EU feels is a small step is actually too long a stride. The debate regarding this matter can be expected to continue for some time but the Union is insistent that certain nations, specifically China, the United States, India, Japan, Russia, and Brazil should, because they are predicted to be the world's leading economies of the future should play a significant role in any future global emission's restrictions (Purushothamen).

In the early 1990's climate control and global warming were issues receiving considerable international attention. The Berlin Wall had fallen, Communism had ceased to be a significant political influence, and nations in Eastern Europe were eager to join the European community in order to promote their infant economies. A new era of cooperation had developed as evidenced by the growth of the European Union to 27 members. The aftermath of 9/11 changed everything as the world turned its attention toward security issues. Environmental issues took a back seat and presently remain there as little attention is being afforded to global warming, climate change or waste management.