Eva Pander Maat

On 20 April 2021, a panel of esteemed experts convened to discuss the book ‘The EU as a Global Regulator for Environmental Protection’ by Dr. Ioanna Hadjiyianni. The Webinar was organised by the Institute for the Study of European Laws (ISEL) and Professor Elaine Fahey, the Jean Monnet Chair in Law and Transatlantic Relations at City, University of London, who also moderated the event. This blog post revisits key points raised during the webinar and summarizes its conclusions.

Hadjiyianni’s book applies a critical transnational lens to the EU’s regulatory power in global environmental governance. It focuses on Internal Environmental Measures with Extraterritorial Implications (IEMEIs): unilateral measures which regulate trade based on conduct which takes place beyond EU borders. The book evaluates IEMEIs from a legitimacy perspective. Whilst access to the EU market is technically optional, it often cannot easily be forgone by third country businesses. This yields IEMEIs significant coercive effects, which gives rise to external legitimacy gaps. These occur across three main fronts: accountability, participation and representation, and access to justice. The main objective of the book is to map the enabling and constraining role of the law in the legitimacy of IEMEIs, focusing on EU and WTO law. The book takes an impressively comprehensive and systemic approach to a pertinent phenomenon in EU law and global environmental governance. This rightfully led it to be shortlisted for the prestigious SLS Peter Birks Book Prize for Outstanding Legal Scholarship 2020. It is therefore unsurprising that Hadjiyianni’s book is praised by all discussants for its thoroughness and offered ample material for an engaging, multi-faceted discussion which could easily have continued far beyond the webinar.

A political science perspective

The first discussant is Dr. Katja Biedenkopf, Associate Professor of Sustainability Politics at KU Leuven. Dr. Biedenkopf lauds Hadjiyianni’s book for describing very topical dynamics. She places the book in a broader, political science perspective and highlights its relevance beyond the legal discipline. She argues that the book represents a much-needed follow-up to the wide interest in the external effects of EU environmental law due to its market power (i.e. the so-called Brussels Effect). Hadjiyianni’s work is novel as it advances this research to investigate a new strand of EU environmental law with extraterritorial effects, which notably has shifted from unintended to intended external effects, and from product- to process-related measures. Moreover, Dr. Biedenkopf offers a normative argument by reference to the EU’s extraterritorial carbon footprint (i.e. CO2 emitted outside of EU territory, but by consequence of EU trade). She posits that as this footprint arguably implies a societal responsibility for environmental protection, it ought to figure centrally in the EU’s legislative motivation for IEMEIs. This argument, and the normative dimension of EU external environmental policy as a whole, appears a central tenet to the conversation on IEMEIs.

A legitimacy perspective

The second discussant is Dr Sanja Bogojević, Associate Professor of Law at Lady Margaret Hall, University of Oxford. Dr. Bogojević applauds the richness and thoroughness of Hadjiyianni’s book, from which she distills four storylines. First, the book provides a careful mapping survey of IEMEIs. Second, it immediately represents the reader with the question of legitimacy, to which, the book makes clear, there are no straight answers. Third, the book highlights the place of environmental protection in the EU’s federal proceduralism, amongst others by covering issues such as access to justice and impact assessments. Fourth, the book demonstrates the pervasiveness of environmental and other objectives in EU internal market regulation, which illustrates the richness of the internal market.

Dr. Bogojević raises three questions. First, she inquires how the EU’s legislative motivation for IEMEIs impacts their legitimacy, which ties into the argument for the EU’s societal responsibility to adopt IEMEIs made by Dr. Biedenkopf. This question will recur throughout the discussion. Second, she asks how the pluriformity of IEMEIs ought to inform their empirical study. Third, revisiting the EU’s societal responsibility to adopt IEMEIs, she questions why the EU has largely remained absent from the legal debates on the responsibility divide between public and private sectors for environmental protection.

An equity perspective

Professor Cinnamon P. Carlarne, Alumni Society Designated Professor of Law at Michael E. Moritz College of Law, Ohio State, challenges IEMEIs by taking an equity perspective on the law. She recalls how environmental law, whilst generally presumed to pursue a normatively desirable liberal agenda, often emanates from a position of power and is hence equally prone to deepen structural inequalities. In line with this, IEMEIs, as narrow, singular focus instruments deployed by the ‘elite’ (i.e. the Global North), minimize opportunities for participation for those they will affect and therefore risk deepening the subjugating capacities of environmental law. Professor Carlarne observes that whilst IEMEIs allow the EU to regulate transnationally without the onerous process of forging bi- or multilateral rules, they lack the legality and political buy-in of those rules. She warns of the precedential effects of imposing a liberal rule of law on reluctant states and citizens in this way. Despite all their limitations, processes of global governance at least provide a platform to third states and non-state actors based on equality, in which questions of norms, principles and distributional effects can be tabled. As a remedy, Professor Carlarne proposes a thicker concept of the rule of law, which includes these distributional and participatory dimensions and, crucially, takes non-state actors into account.

A WTO perspective

Dr. Natalie Dobson, Assistant Professor at Utrecht University School of Law, points out how refreshing it is that Hadjiyianni’s book takes the coercive effects of EU internal market measures as a given. She focuses on the WTO, which offers a platform to test the legality and, arguably, legitimacy of the EU’s legislative motivations for IEMEIs. The WTO hence forces a critical examination of the EU’s benevolent aims, which in literature are so often taken as a given. For example, Dr. Dobson highlights that EU IEMEIs currently under deliberation, more explicitly than ever, have global standard-setting as their aim. However, whilst she points out the value of the WTO as a context in which to test the legality of EU measures, she also critically reflects on its suitability to do so as a trade organization. She particularly points out the inconsistency between Reports by the WTO Appellate Body (AB), which arguably impedes their legitimacy in this context. As an illustration, Dr. Dobson recalls that the AB in the EC-Seals case did not consider the exception for indigenous communities in the EU’s ban on seal products to be compatible with its desired level of protection. This strict focus on trade makes it challenging for the EU to balance different interests in its IEMEIs, which might point to fundamental impediments of the WTO in this context. Dr. Dobson finally raises Indonesia’s WTO challenge of EU renewable energy targets on palm oil. She argues that the Report in this case will help to shed light on the WTO’s legitimacy as an adjudicator of IEMEIs.

What role for the WTO?

In the ensuing discussion, the role of the WTO in assessing the EU’s legislative motivations for IEMEIs is further reflected upon. Professor Carlarne points out that since the WTO currently embeds existing power relations, a more dynamic consideration of its multi-level effects is called for. The discussion furthermore centers on the Carbon Border Adjustment Mechanism (CBAM), which was raised by Dr. Biedenkopf. The Commission proposal for a CBAM, which will translate the carbon content of imports into their price, is expected in July. Dr. Hadjiyianni identifies the CBAM as the next major IEMEI and singles out two problematic developments in the current drafting process. First, there are strong signs (e.g. the March 2021 European Parliament Resolution) that despite the CBAM, the EU will continue to issue free allowances to domestic industry under its Emissions Trading System. Second, although there has been much talk of using the revenue raised by the CBAM to help developing countries in their climate mitigation and adaptation, there simultaneously seems to be a consensus emerging that the CBAM revenue will be used to repay the EU Covid Recovery Instrument. Both developments would seriously jeopardize its WTO-compatibility, from the perspective of which domestic competitiveness concerns cannot be the main aim of the CBAM. Dr. Hadjiyianni therefore emphasizes that phasing out free allowances is pivotal to the CBAM’s chances of passing the scrutiny of the AB. However, whilst WTO-compatibility clearly guides the EU’s legislative processes, as also pinpointed by Dr. Dobson, Dr. Hadjiyianni acknowledges that competitiveness concerns will inadvertently feature amongst the EU’s legislative motivations – albeit below the surface. Dr. Biedenkopf adds a fascinating empirical dimension to this observation. She has found that, whilst support for external climate measures increased amongst Members of the European Parliament in the past decade, the safeguarding of EU business interests has emerged as a key criterion to this support. Dobson adds that the aforementioned upcoming AB Report on EU palm oil regulation will also shed light on the credibility of EU’s benevolent motivations for IEMEIs.

The legitimacy of EU global regulatory power

Returning to legitimacy, Dr. Hadjiyianni recalls that if and where IEMEIs primarily affect third countries, like the CBAM, the EU has a responsibility to listen to their concerns. She moreover questions whether the unilateral nature of the CBAM is helpful in the context of the bottom-up approach of the Paris Agreement. Hence, Dr. Hadjiyianni proposes that the legitimacy of the CBAM will depend strongly on its procedural aspects and the consideration of third country concerns therein. This may tie in to the broader question of the appropriate adjudicative platform for North-South relations. Dr. Bogojević raises this question in relation to the Belt and Road initiative, of which it is as of yet unclear whether legal disputes will be resolved in existing multilateral institutions or ad-hoc tribunals, as suggested by China. Reflecting on this, Dr. Biedenkopf observes that the question of the appropriate adjudicative – or legitimacy – platform is an inherently geopolitical question.

In a webinar permeated with normative questions on legislative motivations and legitimacy platforms, it seems fitting for the last discussion point to consider whether the EU can be considered a normative or a strategic actor in adopting IEMEIs. Dr. Hadjiyianna reflects that neither can be excluded: whilst the EU’s rhetoric is strongly value-based, she observes a progression towards its strategic use of market power. Professor Carlarne adds that all action has a normative dimension – even if it goes unacknowledged. This links back to the thick concept of the rule of law she raised previously: the inevitably normative dimension of EU external action creates the need to consider which interests are affected by this action. The EU’s rhetorical commitment to a value-based external agenda arguably only enhances this need.

The EU as a Global Regulator for Environmental Protection’ by Dr. Ioanna Hadjiyianni is an exceptional book for its thorough dissection of an oft-discussed, but under-theorized phenomenon: the EU’s regulatory power beyond its borders in the field of environmental protection. More importantly, however, the book evidently gives rise to a multitude of reflections which demonstrate that the EU’s global environmental regulatory power merits investigation, not only from a legal, but also from political science and, importantly, normative perspectives. Dr. Hadjiyianni’s work has provided an invaluable contribution to this endeavor. It will be exciting to see her framework evolve as it is applied empirically and developed further.

 Consult the recording of the webinar here. For more information about research related to European Law, visit the Institute for the Study of European Laws