Is para-legal energy governance possible?

Without legal frameworks, how can markets develop?

22 January: ‘New governance, old governors.’

The European Commission’s new 2030 climate & energy plan launched 22 January includes something it calls “European governance for the 2030 framework” (cf. part 3, page 12). An accompanying press release goes even further labelling this concept a “new governance system“. But what if anything is meant by this? And, as it is described, is such a thing even possible? So far the Commission offers only vague indications.

Don’t try to fix what isn’t broken

Europe’s main climate policies already include monitoring and reporting schemes that work well; framework laws covering ETS and most non-ETS emissions have accounting requirements built-in. Every year the data is reported to the EU institutions and to UNFCCC. Legislation was updated only last year (EurLex) and such systems are only one part of the wider environmental reporting established over years of EU development and integration. While parameters of climate laws must be updated to reflect 2030 goals, the basic structure is sound.

So is this only about energy then?

Probably so, since energy is the main subject referred to in part three of the 2030 paper and nowhere else is a case made for changing the existing approach on climate. However, even if we assume it’s mainly about energy, already many issues quickly arise.

First, as the EC paper does not offer any new energy objectives, what specific elements are there to assess post-2020? National energy savings or renewable energy objectives could not be included in new national plans since there are none, at least so far. (A new college may decide differently.)

Second, planning and reporting are two different concepts. One involves governance, while the other doesn’t. National officials will be ready to continue sends reports to Brussels, typically as part of existing legal frameworks, but will not so easily welcome the Commission as a partner in organising those issues that remain as domestic matters.

Third, certain EU energy laws were produced only recently, are still settling in, and do not need to be re-opened yet. For example, on infrastructure, regulations already provide for ten-year Europe-wide grid and pipeline development plans and a list of priority common-interest projects, both updated on a rolling basis every two years.

Fourth, of course some energy or pollution control options such a nuclear power, drilling for hydrocarbons, or geological disposal of carbon dioxide, are explicitly national choices that effectively the Union can neither impose nor ban.

Fifth, performance standards for most new products and vehicles are fixed at the European level, which in a single market is inevitable. Standards can be strong or weak, according the decisions taken, but the responsibility to act in these areas is primarily one for Parliament and Council, not the Commission or national administrations. I could go on.

So where did the Commission go wrong?

First part of the answer is probably that this part of the 2030 proposal was drafted in haste. In the Berlaymont leadership on energy has been missing since 2010. Meanwhile over at Rue de Mot, the new energy director general Dominique Ristori took up office only on 1 January with little time if any in which to organise his staff or to develop solid ideas over the remains of the ancien régime

Also a factor is ‘target wars’, that is to say claims over one, two, three or four targets as prospective cornerstones of a post-2020 framework. Since most players who were heard asked for a single pollution-reduction goal, that is what happened. And if the absence of any new energy goals leaves DG Energy with nothing to do, so “new governance system” become a fig leaf covering its embarrassing nakedness. These reasons are however only superficial ones, I think.

The deep-down problem with energy governance lies in the maladjusted psyche of the Commission’s present leadership and direction. While traditionally the institution is supposed to be the ‘Guardian of the Treaties‘, as required by Article 17 TEU, for years now it has been drifting away from this basic responsibility. This is a big danger for all of us, since the rule of law and the single market are Europe’s DNA, without which things can tend only towards chaos. Such a gradual undermining of the Commission’s most fundamental of roles is especially dangerous for the major players in the single energy market. Enormous and necessary investments must have solid, stable and long-lasting legal frameworks. The Commission now seems only to point to the shifting sands of its own political discretion and a scheme of decision-making powers vaguely distributed across many capitals.

Strasbourg red card

MEPs moved quickly to reject the Commission “new governance” idea. In a resolution last week on 2030 plans, based on the Green Paper but adapting to the latest developments, Parliament accepted an EPP amendment stating:

1a. Expresses its deep concern about the proposals for a new governance structure for the 2030 framework, and recalls that the 2020 framework is based on full co-decision between Parliament and the Council; insists that the Commission should base any legal proposal under full co-decision between Parliament and the Council;

Next parts to follow

I realise in the course of writing this that a fuller exploration of the legal bases for EU energy system governance (of how it should be) will take-up more space that is sensible for a single post. So please rest assured I will return to the issue with ‘part 2’ and more soon.

Postscript

Did you notice in the 2030 document that the term “a framework” on pages 1 & 2 changes to “the framework” from page 3 onwards. Neat trick, eh?

Inter-service bypass at the Berlaymont fudge factory.

Inter-service bypass at the Berlaymont fudge factory.

One thought on “Is para-legal energy governance possible?

  1. Pingback: The strange case of the missing EU guidelines | MarkJohnston.org

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