The Climate Change and Energy Transition Law Proposal of the Popular Party

By Ana Barreira [1]

28 July 2018

On June 22nd, the Popular Party Group in Congress registered a Climate Change and Energy Transition Law Proposal [2]. Its text is that of the draft Law which the same party had been hiding in the drawer while it was in government.

Under Article 134.6 of the Spanish Constitution and Article 126.2 of the Regulation of the Spanish Parliament, the current government has thirty days to oppose the text. However, such opposition is only viable if the government can demonstrate that the law proposal Will affect the general State Budget for the current year [3].

In addition to being deceiving, poor and late, the proposal presented by the Popular Group has multiple inconsistencies, as analyzed below.

Background and elaboration procedure

When the Popular Party was in Government it announced, during COP 21 in Paris, that it was going to promote the drafting of a Climate Change and Energy Transition Law, something that was reiterated by the former Ministers of Energy and Environment during COP 22 in Marrakech, held in December of the following year.

In May 2017, the Government of the Popular Party convened a series of workshops, held on 25 and 26 May 2017, in which people from different sectors participated, with the purpose of gathering ideas for the future text of that law. Afterwards, from July 18 to October 10 of the same year, the Ministry for Agriculture, Fisheries, Food and Environment launched a public consultation on the Law with a series of questions. The initial commitment was to present a draft text of the Law in December 2017 to be subject to a public participation procedure.  Despite this commitment, the publication of a draft text did not take place, although sources at the Ministry claimed to be working on it. And so the months went by without the text seeing the light and, therefore, without carrying out the necessary public participation procedure, until the change of government took place in May.

The first statements of the newly appointed Minister for Ecological Transition pointed to her commitment to drafting an ambitious Climate Change and Energy Transition Law because, apparently, the draft they had found from the previous party in Government was not ambitious enough to tackle climate change, to which Spain is especially vulnerable.

Just three weeks after the change of government, the Popular Party Group, with great media coverage, registered a “historic and ambitious” Law Proposal [4], which was elaborated with resources from the Public Administration for several months and which was not subject to a public participation procedure.

The entire procedure that has followed the elaboration of what should have been a draft law, now converted into a law proposal, shows a total lack of commitment of the Popular Party to Environmental Democracy [5], as well as an improper use of public resources since this text was not prepared by the popular party but by civil servants following instructions of the heads of Energy and Environment.

Now, the new Ministry for Ecological Transition will have to race against time to prepare a bill to be submitted by the Government to Parliament and thus counter this mediocre law proposal.

The content of the law proposal

The content of this law proposal is a sign of the chronic lack of commitment of the Popular Party to fight against climate change, ignoring the enormous risks it conveys for present and future generations.

It is a vague text whose articles contain scattered declarations of intent without the necessary strength that a law should have. The present article does not intend to make an exhaustive analysis of each article of the law proposal, but to offer some evidence that supports the above statement, with the aim of providing a vision that serves, at the same time, for the preparation of a coherent and reasonable draft Climate Change and Energy Transition Law that offers real solutions in the medium and long term.

Firstly, the guiding principles of the law proposal, included in its preliminary text, are purely rhetorical as they are not developed further on. This shows ignorance of what guiding principles of international environmental law are.  Likewise, the law proposal states that one of its objectives is to ensure compliance by Spain of the Sustainable Development Goals (SDGs). However, it merely refers to SDG 7 (affordable and non-polluting energy) and SDG 13 (climate action), despite the fact that the law proposal deals with issues that affect other SDGs such as SDG 12 (sustainable production and consumption). In fact, the first article of this law proposal states that the object of the law is to provide the Spanish legal system with the necessary elements to ensure a transition of the Spanish economy towards a competitive model. Definitely, a transition that does not promote a model of sustainable production and consumption will not be able to take place.

Title I of the Law, dedicated to the decarbonization and energy transition of the Spanish economy, establishes in the first place the national objectives for the reduction of greenhouse gas emissions, for renewable energies and for energy efficiency for the year 2030, limiting itself to copying the objectives recently adopted within the EU as part of the “clean energy package for all”, which are:

  • 40% reduction in greenhouse gas emissions
  • 32% share of renewables
  • 2% improvement in energy efficiency

These are unambitious targets to meet the objectives of the Paris Agreement. The GHG emission reduction target for 2050 included in the law proposal is of 80%. This does not reflect the need to achieve zero net emissions in that year, which again is unambitious.

Article 8 of the law proposal introduces the National Energy and Climate Plan (NECP). In 2015 the Commission published the minimum content these plans should have and the Governance Regulation requires Member States to submit their draft by 31 December 2018. At this moment, we do not have any draft of an NECP in Spain.

Another example is the vagueness regarding environmental taxation.  Article 21 of the law proposal states that the Government will design an environmental tax reform that will improve the application of the “polluter pays” principle. Equally vague is the commitment to involve the financial sector in financing and investing in a low-carbon economy, as the proposed text is limited to establishing the Government’s commitment to incorporate into the legal system the rules that may derive from the Commission’s “Action Plan for a Greener and Cleaner Economy” (Art. 33.2). However, there is no date for when the government will have to do all this. However, the law contains several actions for other issues with a calendar worthy of a conjurer:

Action Responsible Body Timeline
Draft NECP (Arts. 8 and 9) Ministry for Ecological Transition 31.12.2018
Planification for GHG emission reduction for 2030 (Art. 10.2) Ministerial departments responsible for transport, housing, commerce, agriculture, waste and industry 2 years from entry into force of the law
Low-emissions strategy by 2030 (Art. 11.4) It must be approved by Council of Ministers by Royal Decree after proposal by the Ministry for Ecological Transition 31.12.2019
National Plan for Climate Change Adaptation (Art. 14.2) Must be approved by Council of Ministers 31.12.2019
Sectoral Plans for adaptation in the fields of health, water and agriculture (Art. 15.3) Each one of the Ministries responsible for those fields, under the coordination of the Ministry for Ecological Transition 31.12.2019
Update of the Regulation for Hydrological Planning to incorporate climate risks in the planning procedure (Art. 17.3) Ministry for Ecological Transition 31.12.2019
Regional Plan for Mitigation and Adaptation (Art. 19.29) Every Autonomous Community 31.12.2021
Local Plans for Mitigation and Adaptation (Art. 20) Municipalities with more than 100,000 citizens Starting from 31.12.2021
Methodology for allocating public administration expenditure to determine its impact on climate change (Art. 22.2) Approval by the Government at the proposal of the Ministries for Ecological Transition and Finance 1 year from publication of the law
International climate financing strategy (Art. 24) Approval by the Government 2 years from entry into force of the law
Calculation of the carbon footprint and reduction plans in public administrations (Art. 27) Ministerial departments, public bodies and social security managing bodies Starting from 2020
Companies with activity in Spain and public companies obliged to calculate their carbon footprint and establish an emissions reduction plan (Art. 34.1) Approval by the Government 1 year from entry into force of the law
Publication of carbon footprint (Art. 34.2) Companies mentioned above 4 years from entry into force of the law
Green Training Plan (Art. 38.1) Approval by the Council of Ministers at the proposal of the Ministry for Ecological Transition and the Ministry of Labor, Migration and Social Security 1 year from entry into force of the law
Strategic Plan on Sustainable Transition and Employment at State level (Art. 40.1) Approval by the Government through Royal Decree at the joint proposal of the Ministry for Ecological Transition and other competent Ministries in collaboration with regional and local administrations and social partners 2 years from entry into force of the law
Indicator System for Climate Change and Energy Transition (Art. 46) Ministry for Ecological Transition 2 years from entry into force of the law

Finally, the proposal is also incomplete in terms of access to information and public participation, limiting itself to a cross-reference to Law 27/2006, of 18 July, which regulates the rights of access to information, public participation and access to justice in environmental matters, despite the fact that there are many other laws in our legal system that mark the obligation to participate, as will be required in the preparation of the PNECs, subject to the scope of Law 21/2013, of 9 December, on Environmental Assessment. Likewise, the Law establishes the obligation of the Ministry for Ecological Transition and the Ministry of Health, Consumption and Social Welfare to promote the development of good practices in commercial communication, something that is urgent and necessary and which, in fact, already forms part of our legal system since this is required by Article 5.8 of the Aarhus Convention [6].

The fact that the popular party has registered this law proposal puts pressure on the Ministry for Ecological Transition as it must work quickly to present as soon as possible a bill that can counteract it. What is a fact is that with this proposal the PP has become a dog in the manger.

REFERENCES:

[1] Director of IIDMA, LL.M in Environmental Law (London University) and LL.M in Public International Law (New York University).

[2]http://www.congreso.es/portal/page/portal/Congreso/Congreso/Iniciativas/PropLey?_piref73_1335476_73_1335473_1335473.next_page=/wc/servidorCGI&CMD=VERLST&BASE=IW12&PIECE=IWA2&FMT=INITXD1S.fmt&FORM1=INITXLBA.fmt&DOCS=1-1&QUERY=%28proposicion+adj2+ley%29.tipo.+no+%40fcie+no+concluido.fase.

[3] Constitutional Court Judgment Nº 34/2018, Constitutional Court, Plenary Session, Rec Conflict between constitutional bodies 355/2017 of 12 April 2018.

[4]http://www.gppopular.es/videos/180622-vd-belen-rafael-hernando-la-iniciativa-del-gpp-nos-pone-la-vanguardia-la-lucha-cambio-climatico/

[5] The pillars of environmental democracy can be found in the Aarhus Convention on access to information, public participation and access to justice in environmental matters (OJ N. 40, of 16.02.2005).

[6] Each Party shall develop mechanisms with a view to ensuring that sufficient product information is made available to the public in a manner which enables consumers to make informed environmental choices.

 



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