ADDRESSING ENVIRONMENTAL CONTAMINATION THROUGH MARKET REGULATIONS: COMPARATIVE LESSONS FROM THE UNITED STATES AND THE EUROPEAN UNION

Alexandra Rosenbluth* Latravia Smith**

ABSTRACT

The existing legal frameworks in the United States (US) and the European Commission (EC) that regulate industrial chemicals represent divergent methods for controlling market entry, market restriction, and subsequent regulatory oversight when enforcement of these mechanisms fail. Contrary to the prevailing view that the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) law, which amended the US Toxic Substances Control Act (TSCA), is the ‘gold standard’ for chemical regulation, the central premise of this article is that the Frank R. Lautenberg Chemical Safety Act for the 21st Century provides unique opportunities for preventing environmental releases from new and existing chemical substances, which amounts to, if not more stringent, than REACH.

Keywords: REACH, TSCA, Lautenberg, toxic chemicals.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.1

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* Graduated from the College of William & Mary in 2015 where she majored in Government and Environmental Science & Policy. Alexandra is now a community organizer at a small non-profit working on a just transition to renewable energy in Southern Oregon. During the summer of 2014, she served as a Policy Fellow at the U.S. Environmental Protection Agency’s Office of Pollution Prevention & Toxics.

** A student at Florida A&M College of Law, Juris Doctor candidate, class of 2017. She is currently enrolled in the Center for International Law and Justice, which focuses on international and comparative law of developing nations. This past summer, she served as an Honors Law Clerk at the U.S. Environmental Protection Agency’s Office of Enforcement Compliance Assurance. The information presented herein is a synthesis of their research. Note: the views and opinions expressed represent those of the authors and not necessarily those of the College of William & Mary, Florida A&M University College of Law, nor the U.S. Environmental Protection Agency

LEGAL ANALYSIS OF THE EUROPEAN UNION SUSTAINABILITY CRITERIA FOR BIOFUELS

Evgenia Pavlovskaia*

ABSTRACT

This paper provides a legal analysis and review of the European Union (EU) sustainability criteria for biofuels, presented in Directive 2009/28/EC. The paper discusses the EU sustainability criteria as a tool that could be efficiently utilized to operationalize and implement the concepts of sustainable development and sustainability in an industrial setting. The results of the analysis highlight that to safeguard the sustainable quality of biofuels and their production, the list of the EU sustainability criteria should be elaborated further. Other criteria that regulate various aspects of environmental, social and economic sustainability need be added. For example, there is a need for further elaboration of the sustainable agricultural practices and tolerable use of water resources. Furthermore, as long as the EU requirements to fulfill the sustainability criteria have global impacts, the perspective of the involved actors from other regions and countries should be taken into account. Practical possibilities of the involved actors, their costs for the implementation of the sustainability criteria and regional differences should also be considered. More generally, the paper suggests that the list of sustainability criteria, incorporated in a legal framework, should neither be too long, nor too short. A long list is not easy to implement. For a short list, as illustrated by the EU, it could be difficult to guarantee sustainability. Consequently, to the extent possible, the legislated list of sustainability criteria should be complemented by non-binding recommendations, explanations and guidelines. Furthermore, before making the suggested sustainability criteria legally binding, possible conflicts between different interests and contradictions with the already existing regulations from neighboring spheres of law should be investigated as a matter of necessity. Keywords: Sustainability, Sustainability criteria, Biofuels, Directive 2009/28/EC.

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* Evgenia Pavlovskaia, Ph.D. Candidate, Faculty of Law, Lund University, Sweden, evgenia. pavlovskaia@jur.lu.se.

TOWARDS SUSTAINABLE FARMING: AN ANALYSIS AND REVIEW OF THE EUROPEAN UNION’S AGRICULTURAL SUBSIDY POLICY

Laura De Deyne*

ABSTRACT

This paper provides an overview of the most important European agricultural subsidies, which aim at promoting a more sustainable way of farming. The European Union has put these subsidies into place in order to create a better balance between agriculture and the environment. Through these ‘green’ subsidies agro-biodiversity can be protected, which is a very important goal since approximately 50% of all species in Europe depend on agricultural habitats or landscapes. The major pressures on biodiversity in agricultural land result from changes in the type and intensity of farming, which generate changes in agricultural landscapes. Such changes can result either from intensification or abandonment, both of which can be detrimental to biodiversity. Each and every single one of the discussed subsidies has its own goals and purposes. (1) Cross compliance, (2) agro-environmental measures, (3) less favoured area payments and (4) subsidies for organic farming have different objectives, which will be addressed in this paper. I will aim at analyzing their overall contributions to the goal of fostering sustainable farming within the EU, through highlighting the benefits, strengths and contributions of these four types of subsidies. This paper will examine their key contents and provisions, their current level of implementation and practical measures that could be put in place to further enhance their successful implementation.

RE-EVALUATING THE ORIGINS OF THE EUROPEAN UNION’S EMISSIONS TRADING SCHEME: THE EUROPEANISATION OF EMISSIONS TRADING

Gerard H. Kelly∗

ABSTRACT

The adoption of carbon market trading in the European Union (EU) was far from assured. Prior to the Kyoto Protocol, the EU had been critical of market trading and had expressed grave reservations regarding its potential contribution to climate governance. Given this historical backdrop, the EU’s conversion to market trading and subsequent vocal championing of the merits of this regulatory approach, is particularly intriguing. Whilst emissions trading gradually garnered support within the EU, institutionally the Union remained trapped by the normative objections, which it had initially articulated against the idea. Such norm entrapment – the inability to pursue a preferred policy that violates a norm because of prior rhetorical affirmation of the norm – presented a particular dilemma for the EU. Paradoxically, the contribution of individual norm entrepreneurs, located within the Commission, in reframing emissions trading as an effective and efficient instrument for climate governance in the EU proved considerable to unlocking this entrapment dilemma. As a result, a concept, which the EU had previously delegitimised as evasive of domestic responsibilities, was instead reconstructed as a legitimate strategy to salvage the Kyoto Protocol. As market trading internationalises, understanding the drivers and processes by which the EU ETS came to occupy the cornerstone of EU climate policy may offer valuable insights to policy-makers and stakeholders endeavouring to promote global emissions trading initiatives.

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*LL.B. (Dublin), B.C.L. (Oxford), Fellow of the Higher Education Academy; Attorney-at-Law, New York; Lecturer in Law, University of Liverpool.