Understanding Emerging Trends in the European Union Climate Litigations as a Neo-Functionalist: Part One

By Shashi Kant Yadav

If groups within or among states believe that supranational institutions are more promising than national institutions in achieving their interests, then regional integration will result …”   

Haas, E.B.

In 2018, members of ten European families, engaged in the occupation of medium-sized agriculture and related businesses, bought an action (Carvalho case) in the general court of the European Union (EU) contending that the EU’s current greenhouse gas emission (GHG) targets (40 % reduction from the 1990 level) is insufficient and will impact their livelihood by distorting their farmlands. Interestingly, the petitioners of the Carvalho case mentions the Netherland Supreme Court’s decision (Urgenda case) in which the court ordered the state authorities to reduce GHG emission at least by 25 per cent. Urgenda case, like Carvalho, was also initiated by citizen groups. Similar litigations are pending at other member state levels: most notably in France and Italy. Arguably such mobilization of citizens’ climate change advocacy groups beyond the boundaries of the member-states, especially taking influence from one of the member states’ judicial decision, is unique to the multilevel governing system of the EU. Apart from the citizens’ interest groups mobilizing at the supranational level, political interest groups are also lobbying and facilitating their agendas on climate change aggressively.   

The EU climate change related decarbonisation plans were lauded by the most but berated by Hungary and Poland for not including “enough” energy transition financial help to economically weaker countries. Subsequently, both Hungary and Poland launched their state-specific decarbonisation plans (Hungary announcing that their plan is biblical and subscribe to the Christian way of saving the environment).  At the supranational level: the European Commission (EC) joined as an intervener in the appeal to the general court’s rejection of the Carvalho case; the European Parliament (EP) pushed for decarbonisation resolution, Council of Europe (CoE) hinted on the human rights aspect of the climate change, potentially opening the flood gate of individual approaching judicial courts, at supranational and at state-level, asserting for a stricter reduction in GHG emission. These developments, when seen through the lens of neo-functionalism reveal the emerging trends in interest groups’ mobilization and an overarching policy spillover in the EU. This blog post analyses the climate change litigation in the EU from the theoretical lenses of neo-functionalism. While doing so, the post argues that although the member states have effectively transferred climate change-related state functions to the specialised body (at EC), the Urgenda case served as a trigger point for mobilising the interest groups towards “Atmospheric Trust Litigation”. From a neo-functionalism perspective, such mobilization can result in cementing “climate stability” as an integral part of the EU human right regime, eventually strengthening or adding new dynamics to EU integration.   

The EU Climate Change Framework  

Unlike classical realists, neo-functionalists conceptualise the state as an arena in which different groups exists and operate in accordance with their interests. Such interests are conceptualised and inherited aiming for financial gains or survival of a state; if these interest groups identify supranational institution as more promising, they let such institution devise specialised policies, eventually resulting in integration.   

After consenting to the Paris Commitments, the multilevel governing system of the EU took the daunting task of reducing its emissions and that required a bottom-up approach. The EC’s Directorate General of Climate Action serves as a nodal point for the climate change policy formulation. As a broad-based policy: the EU 2020 vision, the EU new green deal, comprising of target-based action plans for each member states, and the prevailing Emission Trading System (ETS) set in a perfect framework for policy spillovers from the technical supranational institutions to the member states. Such spillover is facilitated by the shared competence of the EU and member states over environmental matters. Article 191 of the Functioning of the European Union (TFEU) recognises basic environmental-related objectives at the EU level and Article 192 determines Union-level the Ordinary Legislative Procedure (OLP) that can be replaced by unanimity vote. Such OLP lays down “standard-setting” under cooperative federalism in which the union makes the standard law and member states are required to enforce the minimum standards with an option to exceed the union-level protection. Concerning climate change, the EU, under the green new deals, is in process of setting climate change targets on the member states. While the western European countries favoured such a move, the eastern European ones (mainly Hungary and Poland) criticised such a target-based approach as reducing emission would require energy transition into cleaner fuels and ultimately requiring more finances.  

 Irrespective of the intergovernmental differences, the judicial branch of the EU is approached by the citizens’ interest group (as petitioners) institutes for cutting down these emissions. Interestingly, the EC joined the lists of the defendants as an interfere. Scholars assert that, unlike EC, if CoE recognises climate stability as an integral part of the fundamental rights, the standing of the individuals to file a case at a supranational level against their member states would be strengthened. From the neo-functionalism point of view, this mobilisation of interest groups– advocacy groups, member states with similar interest as lobbyists, and different supranational institutes among themselves—creates a dynamic flow of policy spillovers further integrating the EU.   

Read Part 2.

Shashikant Yadav is a water and energy policy researcher affiliated with the Central European University, Vienna. His article The Oil and Gas Sector in India: Balancing Business Policies and Public Interest by the Supreme Court of India is published in Volume 2, Issue 1 of Global Energy Law and Sustainability, Edinburgh University Press.

Global Energy Law and Sustainability is an international journal dedicated to research in energy law and policy, with an interdisciplinary focus comprising themes from a range of disciplines involved in energy research, such as: the energy life-cycle; energy production and infrastructure; energy regulation; economics and legal policy; energy justice; low-carbon energy law and transition; international energy law; subsidies; risk; governance; climate change; sustainability and environmental law. Find out how to subscribe, or recommend to your library.

Teri Williams
Teri Williams
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