Persona

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PERSONA GRATA
Dr Leonie Reins:
ENERGY AND ENVIRONMENT IN EU LAW
An interview with Post-Doctoral Research Fellow at KU Leuven University (Belgium), Ph.D. in Law Leonie Reins.

An interview with Leonie Reins

№ 10 (101) 2016

Professional Background:
Leonie  Reins – PhD in law, Postdoctoral Research Fellow at KU Leuven University (Belgium). Completed her Bachelor of Law at Leuphana University in Lüneburg (Germany) with a focus on law and business administration. Completed her Master of Law at the KU Leuven University (Belgium) with a focus on international, European and comparative environmental and energy law. Participated in (“Erasmus”) international exchange programs in Ireland, France, and the Netherlands. Defended her PhD thesis «The Coherent Regulation of Energy and Environment in the EU – using shale gas as a case study» at KU Leuven University (Belgium). Author of more than 30 scientific publications, written in English, German and Dutsch. Member of the European Environmental Law Forum (EELF), the International Union for Conservation of Nature (IUCN) World Commission on Environmental Law and the IUCN World Commission on Environmental Law Early Career Group. Senior member of the Leuven Centre for Global Governance Studies and one of the PhD representatives of KU Leuven in the «Ius Commune Research School» (Belgium and the Netherlands). Legal advisor at a Brussels-based environmental law consultancy. Volunteer at the Centre for Sustainable Development Studies, Colombia.Working languages – German, English, Dutsch, and French.

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Leonie  ReinsDr Reins, thank you for taking your time for the interview for the «Eurasian Law Journal». Could you, please tell the readers a few words about your professional background. Why have you chosen to study law? Why  environmental law?

–    Thank you very much for this opportunity, Mrs. Gordeeva, I am really delighted.

During my undergraduate studies in Germany my favorite courses were the ones on sustainability issues. In my last year as a bachelor student I was the leader of a student project on the insurability of offshore windparks. I thoroughly enjoyed this project: it involved research but also exposed me to a “real world issue” by being engaged in a discussion with German insurance companies. These insurance companies needed advise on and analysis of the existing legal framework for offshore windparks and also wanted to know possible future challenges. Further, I realized what I had always wanted to do when I followed a course on Energy Law: Environmental and energy law: a field of law dealing with important and relevant issues that have  a real and immediate impact on society and the resources we have at our disposal.

— We know that not so long ago you have successfully defended your PhD thesis. Could you please tell us a few words, first, about the general process of working on a PhD? What are the requirements for a PhD candidate? When and how does a defense take place?

– I think the most important thing for writing a PhD is to really like the topic one is writing on. I was really thrilled about mine and wanted to know and research everything about it. Further, I think it is important that one does not mind working on a project where one does not see immediate results. A PhD is a long process and sometimes one runs the risk of no longer seeing the forest for the trees. This is why one needs a clear structure and a clearly defined goal, coupled with a detailed timeline and just enough distractions to ensure that one does not get “lost” in research. For me breaking down the individual chapters into articles proved very effective. Further I presented at a lot of conferences to “test” my ideas. Finally, I think it is important that one has a good relationship with one’s supervisor. Mine was always there for me when I needed him, yet he gave me enough freedom to explore and pursue initiatives on my own. I will always be grateful for this!

The defense is indeed the cherry on the cake and I thought it was a wonderful experience. In Belgium it lasts for about two hours and you are expected to briefly present your research and answer questions of the jury members. Even though I was a bit nervous at the beginning, I soon started to enjoy the moment and felt very honored that these established jury members took the time to engage in a discussion on my research with me. I thoroughly enjoyed this discussion and was very happy and grateful that so many family members and friends were there to support me and to celebrate with me afterwards.

And now, could you tell us more about your PhD research. The topic is “The Coherent Regulation of Energy and Environment in the EU – using shale gas as a case study”. Why this topic? What precisely did you focus on in your thesis? Which legal methods did you use? Are the conclusions of your PhD practically oriented or more theoretical?

–The idea of pursuing a PhD came up after defending my Master Thesis. I had been researching the potential impact of shale gas on water resources and compared the regulatory framework in the United States with the one in the European Union. However, I soon realized that there were many more questions to be answered regarding shale gas, but also regarding the regulation of energy and environment in the EU more generally. These questions related, for example, to the division of competences in the environmental and energy area and the impact of the shale gas technology on a common European energy policy. Other questions that I found to be in need of an answer related to the lessons that could be learned from other new energy and environmental issues and technologies, such as the Carbon Capture and Storage (CCS) technology and nanotechnology and to the status of the precaution and prevention principles in light of new technologies and scientific uncertainties.

In order to answer these questions I used a combination of research tools. The most employed tool was desktop research and legal analysis. The main sources were primary and secondary legislation at a European and where relevant, Member State level, as well as European Commission Decisions and Communications, case law and academic writing. In addition, two other research methods were employed, where deemed appropriate: comparative legal analysis and expert interviews.

I used three kinds of comparative (legal) analysis. The first comparative analysis was within the European legal system, whereas the second comparative law analysis was one between different jurisdictions (EU and US). Third, I used a cross-sectoral legal comparison with other “new” technologies also affecting the environmental and energy realm.

In addition to desktop research, I carried out several expert interviews both in the European Union and also during my research stay in the United States. I interviewed representatives from (nearly) all stakeholders involved in the regulatory process, namely NGOs, Trade Unions, ecologists, industry representatives, environment and water agencies, planning organisations and policy makers at the local level. There were two reasons for carrying out the interviews: I sought to confirm and elaborate on the findings I had already made during the desktop study. Second, in light of the fast-moving nature of the research topic, conducting interviews ensured that the most recent developments and requirements were included in the research and validated by those actively involved in the activity. In addition, during a two-week research visit in Texas I had the chance to visit two shale gas fracturing sites in Cotulla, Texas and the Eagleford Shale.

The conclusions of the PhD are practical recommendations for future policy making in the EU regarding new technologies. They provide answers to the question as to how a coherent regulation of energy and environment can be ensured in the European Union.

And what about the shale gas resources in the EU? Could you say a few words about the current legal framework on the shale gas extraction in the EU? And may be a few words about MSs’ position towards regulating relevant issues?

– The estimations on the amount of shale gas resources in the EU vary considerably, depending on which measurement methodology is used and whether one talks about extractable resources or overall resources. Estimates from June 2013 indicated that the European Union has 13,309 billion m3 of technically recoverable shale gas resources. However this estimation is decreasing. There are prospections and explorations underway in several EU Member States, even if the shale gas activity is not pursued in a commercial manner as of yet in Europe. Indeed, the political context could not be more diverse among the Member States. Some States are overall in favor of shale gas extraction such as the UK and Poland. France on the other side has banned the activity already in 2011.

In terms of the regulatory framework, aside from the non-binding Recommendation outlining minimum principles for the exploration and production of hydrocarbons, there is no specific shale gas legislation enacted within the European Union. Any regulation in this field thus falls under general acts of environmental and/or (conventional) energy law.

– Currently the USA is among the leading shale gas extractors. Does it mean that the legal framework in the USA on the issue has been well established? Could it be applied in the EU?

– A comparison with the United States’ regulatory regime can indeed identify best and worst case scenarios as well as lessons to be learned. However, US regulatory trial and error cannot simply be carbon copied to the EU. This is mainly due to two reasons.

First, the set-up of the legal system in both jurisdictions is completely different, including their unique (legal) histories and the division of powers between federal and State levels. This especially applies to the function and power of the US Environmental Protection Agency at both the federal and the State level, as well as other regulatory bodies and agencies. Texas for instance, hardly regulates the fracturing process directly. Instead, the practice is subject to a more indirect regime with regulatory authority spread across multiple agencies that share responsibility for the issuance of drilling permits, the control of groundwater withdrawals and the effort to monitor surface disposal of waste water. The European Union does not have comparable agencies. It is further subject to questions of subsidiarity and proportionality, Member States’ sovereignty, the Union’s competences and the Member States right to determine their own energy mix. All this complicates the legal discussion on whether and how to regulate shale gas exploration and extraction on a EU-wide basis.

Second, the starting points for the comparison are not identical in the two jurisdictions. Over and above commonalities and differences in the regulatory landscape, shale gas extraction is subject to an entirely different spatial landscape in the US. Whereas in the United States space is generally abundantly available, the potential drilling sites in the European Union are located relatively close to other industrial activities, protected areas or residential areas. These aspects evidently  have an impact on the lawmaking process. Additionally, the geographical characteristics of shale gas formations differ, thus the legal framework might need to be adapted to the individual shale.

For these reasons the experience gained in the United States remains very useful in determining the way forward for the activity in the Union, however as always, apples should not be compared with oranges.

– What is the relationship between the energy policy and the environmental policy in the EU?

European energy and environmental policy are both shared competences and (should) go hand in hand. After the Lisbon Treaty, EU Energy law also has obtained a solid legal basis (194 TFEU) in the Treaties. Prior to Lisbon, energy issues were either dealt with under the competence of the internal market (114 TFEU) or under the environmental chapter (Article 192 TFEU). The Lisbon Treaty, with the introduction of a specific competence on energy issues in Article 194 TFEU, changed the Union’s power in this regard by providing for more transparency within energy issues. The inclusion of Article 194 TFEU has been hailed as a “proper policy enabling clause”  for a European energy policy, showing that “energy policy has evolved more than ever into a European subject and is – generally speaking – no longer to be dealt with as a matter for Member States only”;  nor does it have to be adopted on other legal bases such as the internal market, competition or environmental competence.

Because measures affecting energy policy were adopted based on either the environmental or the internal market competence in the past, one could conclude that there are great overlaps between energy and climate policy, and that the relationship between environmental and energy policies and legislation is of an ambivalent nature.  With the passage of Article 194 TFEU however, energy is now a separate and competing title aimed at ensuring “(a) the functioning of the energy market, [and (b) the] security of energy supply, [as well as (c) promoting] energy efficiency, energy saving and the development of new and renewable forms of energy; [and (d)] the interconnection of energy networks”. The reference to environmental considerations (energy policy shall have “regard [to] the need to preserve and improve the environment”) not only takes into account the requirements of the integration principle included in Article 11 TFEU, but an obligation that energy policy must work towards the achievement of the environmental objectives, and needs to preserve and improve the environment, instead of merely “taking” environmental issues into account.”  The energy sovereignty of the Member States in determining their energy mix is thus constrained by environmental measures (Article 194(2) 2nd sub-paragraph). However, from a practical perspective, ensuring energy supply security and at the same time environmental protection will remain a challenge in the future.

– What are the current trends in the EU environmental law? Do you think in the coming years the EU competence in environmental matters may be strengthened?

– In the coming years the discussion on how to strengthen energy supply security without compromising environmental protection objectives will become even more relevant.

The EU has signed up to the Paris Agreement and has made a commitment to lower its carbon emissions. In order to fulfil that commitment a departure from conventional energy, such as fossil fuels, is needed. The only solution for this is to increase energy production from renewable resources in the Union.

It is unlikely that the EU will obtain more competences in the field of Environmental policy, certainly not in the current political climate. However, the Environmental Guarantee as included in Article 193 TFEU is a good mechanism to enhance environmental protection. Article 193 TFEU reads: “The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission.” The Article was introduced into the Treaties because some more environmentally proactive Member States  feared a race to the bottom of environmental protection standards once environmental law would become a European matter. An example where the environmental guarantee is invoked by some Member States is the introduction of stricter emission standards or stricter water quality standards as required by the Water Framework Directive.

In your opinion, what is the role of NGOs/civil society in the protection of environment in the EU?

– The role of NGOs in ensuring effective enforcement of environmental law becomes increasingly important, partially because of the improved rules on standing for NGOs in the Aarhus Convention. One very prominent example in this regard is the recent Urgenda case in the Netherlands. The NGO Urgenda Foundation, together with 900 citizens filed a case against the Dutch Government accusing the government of taking insufficient action to keep them safe from the dangers resulting from climate change. The lawsuit was won by Urgenda and has lead other NGOs, for example in Belgium, to prepare similar claims. Even if the decision is currently under appeal, the decision marks a turning point in environmental litigation and might indeed have started the ball rolling. Importantly, this trend does not only hold true for the European Union. Similarly, in the United States there is a landmark case where 21 young people filed a constitutional climate change lawsuit against the federal government. In November the Federal Judge Ann Aiken rejected motions from the US government and the fossil fuel industry and confirmed the standing of these young people in Court The case is now expected to go to trial. It is expected that this case will prove to be a turning point in US legal history.

And a couple of questions about the recent developments in the international environmental law arena. One of the most significant events is the adoption of the «Paris Agreement». What is your opinion on the outcomes of the UNFCCC COP-21?

– On 5 October 2016, the threshold for the entry into force of the Paris Agreement was achieved and the Paris Agreement entered into force on 4 November 2016. This is indeed very good news. The agreement reaffirms the 2° Celsius target for global warming. Even further, it urges efforts for a 1.5° target which is very important for highly vulnerable developing countries. In addition, through the bottom up approach taken with the nationally determined contributions (NDCs) which the individual States had to submit it was indeed possible to get all States involved in the negotiation process and beyond. New NDCs have to be communicated every 5 years. However the implementation and achievement of NDCs is not binding and operational details were left to agree for future COPs. COP 22 is currently on-going in Marrakesh and the reports are not very optimistic. The Marrakesh Proclamation is expected to attempt to keep all actors on board and political changes in some of the key States. Hence, although the legal framework has been put in place, we are still far from changing the political reality.

One more important event in the international arena is the coming 25th anniversary of the Rio Declaration on Environment and Development. In your opinion what is the value of the Declaration for environmental law?

– Ever since its adoption, the Rio Declaration has not only shaped international but also European and national law making. The principles established therein have found its way into national and regional constitutions, legislation and into case law. I would even go as far as stating that it is the Constitution of Environmental Law. It is a true milestone and was a turning point towards a more rights-based approach. After 25 years it is still an incredibly important tool. Its principles-based approach helps in creating and interpreting legislation throughout the world. Nevertheless, implementing the principles in practice will stay one of the key challenges for future generations.

– Dr Reins, thank you for sharing with the readers of the «Eurasian Law Journal» your professional opinion and insights on energy and environmental law and policy in the EU and beyond. We wish you much success in your future career!

–        In my turn, I would like to thank the editors of the «Eurasian Law Journal» for their inspiring questions and the unique chance to take part in the interview!

The regulation of energy, the environment and climate change remains an issue of global concern. Everyone is affected by environmental degradation and the effects of rising temperatures, regardless of where one is located. Similarly, everyone depends on a stable and secure supply of energy. Global legislative action is required to ensure a sustainable future for all. I encourage readers to get involved in the debate!

Interviewer:


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