Environmental Law, 7 May 2013, Evgenia Pavlovskaia, Law Faculty, Lund University, Sweden - an Analysis based on the EU Policy for Transport Biofuels

 Laws of nature cannot be neglected, because environment reacts according to natural laws, not according to legal documents people create.  The development of the society and legislation should be adopted to environmental laws.

 Sustainable quality of biofuels and their production methods can be seen as a part of the wider concept “sustainability”.  Sustainability of biofuels and their production methods should be measured in relation to resources and possibilities that the Earth can supply us with.

 Sustainability criteria in their function to promote sustainability in a legal context, followed by the analysis of the binding EU regulations for transport biofuels as an example. ◦ - the concept of sustainability criteria, special features of their use in law and aspects relevant for their practical implementation, and ◦ - the issue of control.

 The legal operationalization model of Staffan Westerlund +  the implementation steering model of Lennart Lundquist   the perspective of the legislation +  the perspective of the involved actors.

 Three dominant categories:  Understand – the actor perceives himself and his environment more or less correctly and completely,  Can – the actor is able of implementing the requirement and shaping his environment, and  Will – preferences of the actor are more or less conscious and explicit.

Element 1

The full version

 The actor perspective has been added to the perspective of the legislation.  It should be considered not only what the legislation can and should do, in order for the required environmental goal to be achieved, but also how the involved actors are able and willing to respond to this.

 The issue of control of the fulfilment of sustainability criteria for traded products can contain potential problems.  It is not easy to organize control of each step in a production chain, if a product is manufactured in a State or States other than the State/non-governmental body that has issued sustainability criteria.

 Directive 2009/28/EC  10 % target for renewables in the transport sector by 2020 as an environmental goal,  the environmental sub-goal in the form of the sustainability criteria, which helps to achieve the main goal, and  an enforcement rule in the form of mechanisms suggested for controlling the fulfilment of the sustainability criteria.

 biofuels shall achieve a minimum level of greenhouse gas savings, Article 17.2,  land with high biodiversity shall not be converted for biofuel production, Article 17.3,  land with high carbon stocks shall not be converted for biofuel production, Article 17.4, and  land that was peatland in January 2008 shall not be used for the production of raw materials for biofuels, Article 17.5.

 To ensure evidence of compliance with the national regulatory system in a Member State,  to transpose the sustainability criteria from Directive 2009/28/EC into national legislation and refer to voluntary sustainability standards that have been approved by the EU Commission, or  to meet the terms of a bilateral or multilateral agreement approved by EU.

 Member States shall require economic operators to arrange for an adequate standard of independent auditing of the information submitted, and to provide evidence that this has been done. The auditing shall verify that the systems used by economic operators are accurate, reliable and protected against fraud. It shall evaluate the frequency and methodology of sampling and the robustness of the data.

 Article 18.4: EU shall make efforts to conclude bilateral or multilateral agreements with third countries containing provisions on sustainability criteria, and  Article 18.5 sets further requirements on voluntary certification schemes and bilateral or multilateral agreements for them to be approved by the EU Commission.

 one of the most critical and challenging issues,  has its own strong sides and weaknesses.

 supports the development of control mechanisms and investments in this sphere, and  promotes the accepted voluntary sustainability standards for biofuels and control mechanisms used there.

 recognizes experience and practices of the existing sustainability standards, in the question of control and other issues,  through this: ◦ avoids “reinventing the wheel”, ◦ saves time and economic resources, ◦ the accepted sustainability standards have producer recognition already, and ◦ producers do not need to be certified according to several standards,  learning from other control systems, exchanging experience and further harmonization of control mechanisms.

 minimizes conflicts with the WTO rules,  hiring private actors for the purpose of control can lead to a better quality than delegating this issue to governmental bodies,  flexible and stable to changes; easy to be updated, and  suits to control fulfilment of the sustainability criteria under different technical, geographic and judicial conditions.

 many questions about the control issue remain unsolved,  it is unclear whether the sustainability criteria can be appropriately implemented,  doubtful that independent auditing will function as efficiently, as it has been planned,  certification according to several sustainability standards is, perhaps, unavoidable.

 one of the possible solutions to the control issue is to hire specially educated independent auditors,  this control mechanism is not safe, because independent auditors should also be educated and controlled,  the actor perspective: independent auditing is not always possible to be organized at each stage of the production process.

 Another control mechanism can be to use self-control in self-controlling organizations.  This mechanism is neither safe, which means that further solutions should be looked for.

 Sustainability criteria can efficiently be included in a legal framework with the purpose to standardize, promote and safeguard environmentally sustainable quality of products and their production methods.  This can be done following various steering models and approaches.

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