HOW DOES THE LAW REGULATE SUSTAINABILITY?

Law plays a major role on the path to a climate friendly economy and policy - research is currently being conducted on this important issue at Bucerius Law School

Record summer temperatures, severe drought and simultaneously the prospect of a winter in which gas could become scarce. This year in particular, the issue of sustainability is taking on an urgency that can no longer be overlooked. In social science, there has long been a discourse regarding Anthropocene: now it is becoming clear that we are in a geological age in which humans have seriously changed and - it must be said clearly - damaged the earth.

Since the start of Russia's invasion of Ukraine, at the latest, it has also become clear that the focus on fossil fuels is not only fatal from an ecological point of view. It also keeps Germany dependent on suppliers of raw materials, which can seriously jeopardize supplies. The task at hand is to find a way of life that secures energy supplies while at the same time makes it possible to live on Earth for a long time to come. Numerous approaches are needed to achieve this: political, ethical, sociological and legal. 

LEGAL APPROACHES ON THE WAY TO MORE SUSTAINABILITY 

Law plays an important role in this issue. "It is central in view of the fact that pure appeals to individual responsibility or ethical action have, experientially and structurally, only a very limited effect," says Professor Michael Fehling, Chair of Public Law and Comparative Law at Bucerius Law School.

Fehling, along with Professor Christoph Kumpan, founded the Center for Interdisciplinary Research on Energy, Climate and Sustainability (CECS), which celebrated its inaugural event at the university on Sept. 29. "Law is an indispensable steering tool because, in the end, only the law can truly be enforced," said Fehling. 

PRIMARY GOAL: LIMITING GLOBAL WARMING

According to the Paris Climate Agreement, the international community formulated the political goal of limiting global warming to a maximum of 2 degrees and, if possible, 1.5 degrees. To achieve this, the legal community is focusing on several key areas. Central to this is, above all, accelerating the expansion of renewable energies, i.e. solar and wind power, offshore as well as on land.

A second area of focus is the promotion of innovative technologies for the use of green hydrogen. Another important field that needs to be shaped legally is sector coupling. In order to move away from fossil fuels, Germany must also work more closely with green electricity in the heating sector and switch to e-mobility in the transport sector.

"The key challenge is to establish a coherent legal framework that effectively realizes the triad of goals of environmental compatibility, competitiveness and security of supply," says Markus Ludwigs, professor of public law at the University of Würzburg. Ludwigs is a member of the Scientific Advisory Board of the Institute for Energy and Regulatory Law Berlin e.V. and of the Scientific Advisory Board of the journal "Law of the Energy Industry”. Since 2021, he has been a member of the Board of Trustees of the Foundation for Environmental Energy Law and will also speak at the CECS kick-off event, along with other speakers.

EASTER PACKAGE: ACCELERATING THE EXPANSION OF RENEWABLE ENERGIES

The latest instrument steering in this direction is the so-called “Easter Package”, which the German government adopted in the summer. It is intended to set the course for a climate-neutral power supply by 2035. To this end, it is intended above all else to speed up the approval process for wind turbines and enable more areas to be designated for this purpose.

According to this agreement, in the future two percent of Germany's land area must be set aside for wind turbines, which is more than double the current amount. In addition, the Easter package defines the construction of renewable energy plants as an overriding public interest. This means that, as a principle, the construction of such plants is to be given preference when weighing other options. In addition, the EEG levy was abolished to make electricity cheaper. 

A step in the right direction - and yet, according to Fehling's assessment, the Easter package will achieve less than planned. It highlights a fundamental problem that set limits on the legal design of the ecological turnaround: We have a multi-level system. Europe, the federal government, the states and the municipalities - they all have to interact, and sometimes the respective regulations end up setting limits on each other.

The protection of wildlife species, for example, is governed by European law, and this conflicts with the German legislature's goal of quickly building more wind turbines. Another example in the Easter package: the plan to designate new areas for onshore wind energy threatens to collide with the autonomy of the federal states and that of local self-government.  
 

EFFICIENT CONTROL NEEDS A MIX OF INSTRUMENTS 

For this reason, in order to be truly efficient, a mix of instruments is needed: government planning, financial incentives, requirements and prohibitions and educational government action. A variety of approaches are being discussed in the legal community. One interesting idea, according to Fehling, could be individual CO2 quotas for private citizens.

"This would be by far the fairest solution to limit CO2 emissions," says the CECS co-founder. "Private individuals could also trade the quotas and would gain options for action for their own climate balance." For data protection reasons, however, the idea would be difficult to implement at present, at least in the case of Germany. 

CECS: TOWARDS THE CLIMATE PROTECTION LAW PERSPECTIVE

At Bucerius Law School, the new CECS is to advance basic research in the direction of sustainability and develop recommendations for legal policy action.  

The CECS grew out of the Energy Law and Policy Initiative, which has existed at the university for about seven years.

The previous focus on energy law will be expanded to a climate protection law perspective. The research approach is international, the CECS wants to bring together scientists with special expertise in the fields of energy, climate and sustainability. The topic will also be examined from an interdisciplinary perspective. The public law perspective will be supplemented by the civil law perspective.  

The Center will focus on four research fields: Sector coupling, digitalization of the energy industry, green finance and CO2 savings potential along the product life cycle. The Green Finance research field, which Professor Christoph Kumpan will oversee, is new. Green Finance aims to steer financial investments into projects and products that are as climate-friendly as possible and to mobilize capital for sustainable investments. To achieve this, the financial market must be geared more strongly toward green investments.

"Sustainability risks, whose consequences often lie far off in the future, are currently not adequately calculated," says Christoph Kumpan. The new center is closely monitoring the latest developments in green finance. For example, there is already a critical examination of the EU's deliberations on the regulation of green bonds.

The next project will continue on from this and deal more generally with the requirements for green investment products. In addition, the center wants to focus more on the climate responsibility of companies. In the Netherlands, for example, this has led to the first court cases against companies. An event is already planned for January that will focus on the theme of climate responsibility for companies. 

A new focus will also be on sector coupling. "This is often referred to as the key concept of the energy transition," says Professor Markus Ludwigs of the University of Würzburg.  "However, there is still no talk of a coherent law on sector coupling."

Anna Nyfeler, a doctoral student at the Chair of Public Law at Bucerius Law School, is already researching what this might look like. She is doing her doctorate on the question of how energy law can and should steer sector coupling technologies such as electromobility, power-to-gas for the production of green hydrogenand cogeneration.

Linking the power sector with the heat, industry and transport sectors is seen as leading the way to decarbonization. But that's not the only significance, says Nyfeler: "Sector coupling technologies, if used in a way that serves the system, can also increase supply security.”

In the CECS research field Digitization of the Energy Industry, the focus will be on efficiently structuring the interplay between trade, transport and sales in the energy sector. In the fourth focus area, the CECS wants to develop a cross-legal perspective on how the entire life cycle of a product - from production to disposal - can be designed in a way that minimizes greenhouse gases

SUSTAINABILITY ALSO GAINS MORE IMPORTANCE IN EDUCATION 

The subject of sustainability is not only to be confined to research at Bucerius Law School. A lot has already been done in teaching as well, for example through elective courses on environmental economics and environmental psychology, as well as lectures in energy law.

In the Studium Generale there was a lecture series on climate and law, and in the Studium Professionale, energy lawyers informed interested students about career paths in this field. The students also initiated the "Dialogue on the Future", and event with a variety of different sustainability topics.  

Students have also been active on the issue of sustainability for quite some time. Not just words, but action is a priority for many. Baro Gabbert, now an alumna of Bucerius Law School, founded the university group for climate and sustainability back in 2019. Many students there expressed the need to apply their legal knowledge in practice. This was followed in 2020 by the founding of the nationwide Climate Clinic, the first student-run legal advice center for climate issues.

Since then, the students involved have been advising climate activists, initiatives, NGOs, associations and other university groups on a variety of questions concerning climate and law, for example: what does the climate decision of the Federal Constitutional Court mean for urban land use planning in a municipality? And would the climate policy demands of an NGO be legally enforceable? "Many activists don't have any other contacts for such questions," says Baro Gabbert. 

GREEN CAMPUS 

The motto of teaching, researching, and acting also applies to the law school itself. Bucerius Law School wants to position itself sustainably. Thies Hauck, Head of University Development, is responsible for this goal. Since 2019, he has been running the Green Office - a place where students can also get involved in a variety of ways to help make the law school more sustainable. Among other things, Bucerius Law School has undergone the environmental management system Ökoprofit (Ecoprofit), a certification by the Chamber of Industry and Commerce.

A major step was also the regulation for business trips, which the university enacted in 2021. This is an important issue, because business trips are important for the exchange of knowledge. "The faculty conducts research internationally and should of course be able to travel to international forums and conferences" says Hauck. The new directive therefore states that price is no longer the sole criterion when planning a business trip. Employees can now also choose travel routes that cost a little more if they are also more sustainable.

If possible, air travel should be avoided completely, particularly for travel within Germany. And if a flight is nevertheless necessary, it will be compensated - and centrally via the accounting system, so that all flight movements by members of the Law School are recorded.  

There will be many individual steps taken on the way to reaching a big goal. And the journey is just starting. Hauck is hoping for a real quantum leap in the direction of sustainability regarding the new buildings planned for the campus: "These offer the opportunity not only to build in a consistently sustainable way, but also to enable long-term sustainable use," he says. "That could take the entire campus a big step toward becoming a carbon-neutral university."

In summary, there are still many minor and major steps to be taken to secure our energy supply and ensure that life on earth will continue to be possible in the long future. But the direction is clear, because there is no alternative.

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Elke Spanner, Florian Helwich, David Patrician

Hamburg