THE ‘INFLUENCE GAP’:
INTERNAL VERSUS EXTERNAL DIMENSION OF EU BIOFUEL
POLICY AND SUSTAINABLE DEVELOPMENT
MA Thesis in European Studies. Graduate School for Humanities. Universiteit van Amsterdam
Lola María Schulz Vidal
Student nº 11792566
Main supervisor: Prof. Dr. P. Cebulak
Second supervisor: Prof. Dr. J.B.M.M.Y. Shahin
This thesis looks into the implementation of the EU principle of sustainable development into the EU biofuel policy in bot its internal and external dimensions.The aim is to assess whether the argument of the ‘influence gap’ between the compliance with the principle at the internal level and its promotion in the international sphere. To this end, two main analyses are conducted: (1) a sustainability analysis of EU biofuel policy to evaluate whether it complies with the three pillars of sustainable development -economic growth, social cohesion and environmental protection-; and (2) a Normative Power Europe tripartite analysis of the external trade relations of the EU with two of its most important biofuel exporters: Argentina and Indonesia. Additionally, this last analysis provides with an answer to the question: Is the EU exerting a normative power in this context?
TABLE OF CONTENTS
List of abbreviations i.
Introduction 1
Chapter One: Normative power Europe and sustainable development 5
Sustainable development: Notions and interpretations 5
Theoretical framework: Normative power Europe 10
Literature review: NPE and sustainable development 14
→ Sustainable development and trade 18
Conclusion 20
Chapter Two: Internal dimension of EU biofuels 21
Notion of biofuels 22
Historical evolution of biofuels and their sustainability criteria 23
Sustainability in the new RED II 28
Sustainability analysis according to the three pillars 33
Repercussions of RED II 37
Conclusion 39
Chapter Three: External dimension of EU biofuels 40
Step one: Analysis of the principles 42
Step two: Analysis of the ways 48
Step three: Analysis of the impacts 53
Conclusion 55
Conclusion 57
LIST OF ABBREVIATIONS
AA Association Agreement
ASEAN Association Southeast Asian Nations BBB Biofuel, Bioliquid and Biomass fuels
CEPA Comprehensive Economic Partnership Agreement
CEPF Confederation of European Forest Owners
CFREU Charter of Fundamental Rights of the European Union CJEU Court of Justice of the European Union
DG TRADE Directorate General for Trade
ECJ European Court of Justice
EEAS European External Action Service
EFTA European Free Trade Association
EU European Union
FQD Fuel Quality Directive
FTA Free Trade Agreement
GHG Greenhouse Gas
GSP Generalised Scheme of Preferences
ILO International Labour Organisation
ILUC Indirect Land-Use Change
ISPO Indonesia Sustainable Palm Oil
MEA Multilateral Environmental Agreement
MPE Market Power Europe
NDC Nationally Determined Contribution
NGO Non-Governmental Organisation
NPE Normative Power Europe
PCA Partnership and Cooperation Agreement
RED Renewable Energy Directive
REIO Regional Economic Integration Organisation
SDS Sustainable Development Strategy
SEA Single European Act
SIA Sustainability Impact Assessment
TEC Treaty of the European Communities
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
UN United Nations
UNFCCC United Nations Framework Convention on Climate Change
US United States
WSSD World Summit on Sustainable Development
INTRODUCTION
It has been widely acknowledged by scholars that the European Union (EU) has positioned itself as a leader in the international fight against climate change. As a matter of fact, this 1 leadership role has been actively sought by the EU, with President of the Commission José Manuel Barroso stating that “the concrete engagement of the European Union in the world (...) drives our leadership in the fight against climate change and for food and energy supply” during the acceptance speech for the Nobel Peace Prize the EU received in 2012. Along 2 the same lines, Jean-Claude Juncker declared during his first State of the Union speech as President of the Commission, in 2015, that his team “will work to ensure Europe keeps leading in the fight against climate change. We will practice what we preach”. It is within this 3 context that the EU is looking to reduce its greenhouse gas (GHG) emissions -especially in the transport sector- through the promotion of the use of biofuels as an alternative to fossil fuels. The sustainability of the use of biofuels has been highly questioned, with NGOs and academics arguing that it causes loss of biodiversity, sharp increases in food prices and even human rights violations in producing countries. This questioning clashes with the EU’s 4 drive to export its principles and ideas to other countries -a theory known as Normative
1 Gracia Marín Durán and Elisa Morgera, Environmental Integration in the EU’s External Relations: Beyond Multilateral Dimensions. Oxford and Portland, Oregon: Hart Publishing. 2012; Sanja Bogojevic, "Climate Change Law And Policy In The EU", in The Oxford Handbook Of International
Climate Change Law (repr., Oxford: Oxford University Press, 2016),
https://www.oxfordhandbooks.com/view/10.1093/law/9780199684601.001.0001/oxfordhb-978019968 4601; Stefan Renckens, Grace Skogstad and Matthieu Mondou, "When Normative And Market Power Interact: The European Union And Global Biofuels Governance", JCMS: Journal Of Common Market
Studies 55, no. 6 (2017): 1432-1448, doi:10.1111/jcms.12584; John Vogler, "The External Environmental Policy Of The European Union", in Yearbook On International Cooperation O
Environment And Development (repr., Earthscan, London, 2003), 65-72; Stavros Afionis and Lindsay C. Stringer, "European Union Leadership In Biofuels Regulation: Europe As A Normative Power?",
Journal Of Cleaner Production 32 (2012): 114-123, doi:10.1016/j.jclepro.2012.03.034. 2 European Union (EU)—Nobel Lecture: ‘From War to Peace: A European Tale’, available at <http://www.nobelprize.org/nobel_prizes/peace/laureates/2012/eu-lecture_en.html> [Accessed: 30 March 2019]
3Jean Claude Juncker- President of European Commission, "State Of The Union: Time For Honesty, Unity And Solidarity", 2015,
https://ec.europa.eu/commission/sites/beta-political/files/state_of_the_union_2015_en.pdf. [Accessed: 2 April 2019]
Power Europe-, which in this case translates into its intention to export its sustainability criteria for biofuel production. For this reason, the EU has responded to these claims by adopting a new Directive on biofuels, with stricter sustainability criteria. This thesis will dive into the sustainability of the internal and external dimensions of EU biofuels through the lens of Normative Power Europe, analysing its compliance with the Three Pillars of Sustainability, which have been widely recognised internationally and at the EU level. These pillars take into account not only environmental protection, but also economic development and social cohesion, as necessary basis for sustainable development. The main issues that will be raised in this thesis revolve around the principle of sustainable development, and how it became one of the identitarian characteristics of the EU, introducing the theory of NPE; what is the new EU policy on biofuels and whether it complies with the three pillars of sustainability, also looking into the historical evolution of the policy to provide some background; and how does the EU include sustainable development in its external trade relations, whether by exerting a normative power or not. This last issue will subsequently raise the issue of EU protectionism and incoherence accusations. By addressing this points, a number of questions are sought to be answered: (1) Does the EU biofuel policy reflect the three pillars of sustainable development? and (2) Does the EU promote sustainable development in the external dimension of EU biofuel policy in a normative manner? The answers to both this questions will lead to the answer of the third and final question: (3) Is there a gap between the sustainability of both dimensions that could lead to EU behaviour being interpreted as incoherent?
Even though there is already much literature on whether EU actions in the international realm are coherent or not, the focus is mainly put on the external dimension, usually5 overlooking the internal one. This thesis will address the internal dimension before looking into the external one. Moreover, since EU biofuel policy has recently been modified with the new Renewable Energy Directive (RED II), there has not been so far an analysis such as this carried out. At the end of the analysis, this thesis will be able to conclude four main ideas. First, the EU has come a long way in the integration of sustainability provisions into its internal biofuel policy, but it is currently more focused on the environmental pillar of sustainable development, thus, further attention to the economic and social pillars is needed. Second, the EU promotes sustainable development in its external dimension through normative power, therefore supporting the theory of the EU as Normative Power Europe. 5 Simon Lightfoot and Jon Burchell, "Green Hope Or Greenwash? The Actions Of The European Union At The World Summit On Sustainable Development", Global Environmental Change 14, no. 4 (2004): 337-344, doi:10.1016/j.gloenvcha.2004.07.002.
Third, in relation to the claims raised by some countries about the EU being protectionist of its biofuel market, the new RED II calls for a reduction of the production and consumption of 1st generation biofuels independently of their origin. Therefore, such allegations do not have grounds. Fourth and final, in relation to the statement that the EU is not coherent in its behaviour, a double standard is observed between the sustainability provisions regarding the internal biofuel market and the ones regarding their external trade, the latter being more demanding. For this reason, this thesis supports the incoherence claims and warns of the possible perceptions of the EU behaving in a ‘paternalistic’ manner.
Since the analysis will be focused on the coherence of the image the EU tries to project globally, it should be noted that the notions and definitions used are the official definitions that the EU employs. Following this argument, legislation, case law, policy papers and official communications are the main sources that have been used for the analysis. Nonetheless, academic papers, books and news articles have also served as sources for the theoretical part of this thesis, as well as to support the arguments and findings of the empirics. Finally, two interviews with EU policy officers in the relevant areas have also contributed, mainly by providing with some guidance for the research.
As a final point, this thesis is structured in the following manner. The first chapter will be devoted to the theoretical part of the research, with the first section introducing the notion of sustainable development and how it has become of the main principles of the European Union; the second section laying down the theoretical framework that will guide the empirical analysis, in this case, the theory of Normative Power Europe, proposed by Ian Manners; and the third section providing the reader with an academic literature review on the role of the EU in the promotion of the sustainable development principle in the international sphere. The second chapter will dive into the internal dimension of EU biofuel policy, firstly by looking into the EU notion of biofuels and the historical evolution of EU biofuel policy and its sustainability criteria, and secondly by laying down the main ideas introduced by the new RED II and by analysing the whole of the Directive, not only its provisions on sustainability criteria, in order to assess its level of compliance with the three pillars of sustainable development. The third chapter will shift the attention into the external dimension of EU biofuel policy, which is encompassed in the general external EU trade relations. It is during this chapter that the NPE analysis will be carried out. Such analysis consists of three steps, which will constitute the three main sections of the chapter: the first step will analyse whether the principle of sustainable development has been upheld in EU -external- trade relations;
the second step will then look into the ways in which sustainable development has been upheld; and the third and final step will analyse the impacts of EU actions in the promotion of sustainability in trade. To do so, two countries relevant to EU biofuel trade will serve as case studies: Argentina and Indonesia. At the end of the thesis the main findings will be summarised and the the main ideas derived from them will be extracted in the conclusion.
CHAPTER ONE.
NORMATIVE POWER EUROPE AND SUSTAINABLE
DEVELOPMENT
As an essential first step in the analysis object of this thesis, this chapter will first provide an overview of the evolution of the notion of sustainable development in international law, and how international developments have shaped EU conceptions and vice versa. Once this has been set, the second section will introduce the theoretical framework through which the analysis will be carried out. The theoretical framework chosen for this purpose has been that of Normative Power Europe, proposed by Ian Manners. Drawing from the previous sections of this chapter, the last section will consist of a review on the relevant academic work that has been written on the EU as a normative power and its role in advancing the European value of sustainable development. Since the second part of the analysis at the core of this thesis will be focused on the external dimension of the EU biofuel policy, which revolves around the trade of biofuel produce from third party countries, the literature review will also question whether EU’s insistence in sustainable development has an ideological base, or on the contrary is based on economic interests. Finally, the main ideas from these three sections will be compiled in a simple manner, in order to dive into chapter two with a clear understanding of the basis of this thesis.
Sustainable development: notions and interpretations
The notion of sustainable development has many definitions and interpretations, since its considered to be an international law construct. Nevertheless, it has a significant weight in 6 EU law. For this reason, it is interesting to look into the progressive evolution of the notion
from an international principle into EU law. To do so, both hard law -law- and soft law7 -political declarations- will be analysed.
The starting point of the formulation of sustainable development in the international realm is widely considered to have taken place in 1987. That year, the United Nations’ World Commission on Environment and Development issued the report ‘Our Common Future’, commonly known as The Brundtland Report, in which the first formulation of sustainable8 development is considered to be laid down. This definition is set in its chapter two, paragraph 1, as the “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Five years later, this notion of 9 sustainable development was further established by the Rio Declaration, which resulted from the United Nations Conference on Environment and Development of 1992. Additionally, some guidelines were set, such as the precautionary principle (article 15); the principle that the polluter pays (article 16); the need to eliminate unsustainable patterns of production and consumption (article 8); as well as that of raising public awareness (article 10); among others. 10
As a result of these developments in the international sphere, the European Union decided to follow suit. In 1993, the new Treaty on the European Union, the Maastricht Treaty, included, in its articles 1 and 2, sustainable development as a European objective, although it did not use explicitly the term sustainable development. Nonetheless, the wording “to guarantee harmonious and balanced development of economic life within the Community and consistent, non-inflationary, and environmentally compatible growth”11 was not that different from the one laid down in the Rio Declaration. Moreover, as support for this new task, the Fifth Environmental Action Programme of the European Union, set for the period between 1993 and 2000, drew from the definition of sustainable development formulated in the Brundtland Report and underlined the need to develop new tools for its achievement, such as market-based instruments.12 Further progress towards the recognition of the
7 Ibid
8 World Commission on Environment and Development, “Our Common Future” (Oxford, Oxford University Press, 1987).
9 Ibid, ch.2, para 1.
10 Rio Declaration on Environment and Development, in Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I) (1992).
11 Treaty on European Union [1992] OJ C191/1 (Treaty of Maastricht).
12 Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council, on a Community programme of policy and action in relation to the environment and sustainable Development, which contains “Towards Sustainability: A European
principle of sustainable development in EU law was made with the Treaty of Amsterdam. 13 Adopted in 1997, it was the first EU treaty to explicitly include the principle -in the preamble and in article 2- as part of the objectives of the EU, as well as it added to the European tasks a “high level of protection and improvement of the quality of the environment”. Additionally, 14 in 2001, the Council adopted the Sustainable Development Strategy (SDS), the goal of which was to provide “a long-term positive vision” in which “economic growth, social cohesion and environmental protection must go hand in hand”, thus guaranteeing that “all 15 policies have sustainable development as their core concern”. 16
In 2002, the World Summit on Sustainable Development (WSSD) took place, where the focus was set on the three “interdependent and mutually reinforcing pillars of sustainable development: economic development, social development and environmental protection at the local, national, regional and global levels”.17 That same year, these pillars were translated into the EU Strategy, at the same time as its external dimension was further detailed, with the setting of core ideas of action and goals. Nonetheless, the definition of the notion remained vague, with the Commission stating that: “to be sustainable, development must strike a balance between the economic, social and environmental objectives of society, in order to maximise well-being in the present, without compromising the ability of future generations to meet their needs”. Still, the reflection of the pillars set globally into the EU 18 sphere cannot be denied.
Moving forward with their commitment with sustainable development, the European Council supported a series of Principles for Sustainable Development in 2005, in order to guide the European integration process bearing in mind “economic, social and environmental considerations”. The core of this conceptualisation of sustainable development within EU19
programme of policy and action in relation to the environment and sustainable development” [1993] OJ C138/1 (Fifth Environmental Action Programme).
13 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts. [1997] OJ 340/1.
14 Ibid, Article 2.
15 Commission, “Communication on a sustainable Europe for a better world: a European Union strategy for sustainable development” COM (2001) 264 Final, 2.
16 Ibid, 6.
17 “Political Declaration of the World Summit on Sustainable Development” (4 September 2002) UN Doc A/CONF.199/20, Resolution 1, para 5.
18 Commission, “Communication - Towards a global partnership for sustainable development” COM (2002) 82 Final, 3.
19 European Council, “Presidency Conclusions” Brussels, 16-17 June 2005, adopting the “Guiding Principles of Sustainable Development”, 30.
law was echoed in the SDS review of the following year (2006), where concrete objectives 20 and actions were laid down for the period 2006-2010 with regards to the environmental challenges the EU considered was facing, among which sustainability -in transport- was specified, alongside with the more general consideration of “other challenges regarding sustainable development”. Shortly after this, in 2007, the Lisbon Treaty was adopted. In it,21 22 two main novelties were introduced in the sphere of environmental policy. First, it fostered the promotion of sustainable development internally though article 11 TEU: “Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development”. And, second, it reinforced EU’s commitment to the international development of 23
environmental protection, as well as to sustainable development through Article 21(2), which establishes that:
‘2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
(d) foster the sustainable economic, social and environmental development of developing countries (...);
(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;’ 24
At this point, EU actions stopped following the international advancements in the field of sustainable development and started taking the lead. In the following revision of the SDS, in 2009, aimed at detailing a strategy for the period 2010-2020, the EU decided to set the25 notion of sustainable economy, or green economy, as the key to its new strategy, as can be observed by its Presidency report:
20 European Council, “Review of the EU sustainable development strategy (EU SDS) - Renewed strategy” Brussels 15-16 June 2006. (Brussels Council Conclusions, 2006).
21 Brussels Council Conclusions 2006, 7-21.
22 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community. [2007] OJ C-306/1.
23 Treaty on the Functioning of the European Union (TFEU), Article 11. 24 Treaty on the European Union (TEU), Art. 21(2)(d) and (f).
25 European Council, “2009 review of the EU sustainable development strategy - Presidency report” Brussels 1 December 2009 (2009 SDS Review).
‘An eco-efficient economy will contribute to achieving the key objectives and the overall aim of the SDS. It represents new business opportunities and will, given the adequate framework conditions, boost EU competitiveness and stimulate significant employment growth, and should therefore also be an essential element of a new EU 2020 strategy.’ 26
In the meantime, in the international realm, the integration of sustainability into the economy took place later, in the 2012 United Nations Conference on Sustainable Development in Rio de Janeiro.27 The following year, the EU went a step further and introduced the notion of circular economy, which gives a life-cycle approach to all stages of production and consumption, in its Seventh Environmental Action Programme -which is the one currently in28 place until 2020-, where the EU determined where it wants to be in 2050:
‘In 2050, we live well, within the planet’s ecological limits. Our prosperity and healthy environment stem from an innovative, circular economy where nothing is wasted and where natural resources are managed sustainably, and biodiversity is protected, valued and restored in ways that enhance our society’s resilience. Our low-carbon growth has long been decoupled from resource use, setting the pace for a safe and sustainable global society.’ 29
Despite this evolutionary progress, there is still no precise legal definition of sustainable development in EU law. Moreover, the ECJ has neither given a definition nor anuled a law based on it. This is due to the consideration of the principle of sustainable development as more of a political principle, and not a justiciable one. As Advocate General Léger argued in a case regarding the EU Habitats Directive: 30
‘Sustainable development does not mean that environmental interests should prevail necessarily and systematically over other interests defended in the context of other policies pursued by the Community. On the contrary, it emphasises the necessary balance between various interests which sometimes clash, but which must be reconciled.’ 31
26 Ibid, 7.
27 Marking the 20th anniversary of the 1992 Rio Conference on Environment and Development (Rio+20). UN Conference on Sustainable Development in Rio de Janeiro (2012) UN Docs A/RES/66/288.
28 Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet” (Seventh Environment Action Programme).
29 Ibid, annex.
30 Council Directive (EC) 92/43 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7.
31 AG Léger Opinion in Case C-371/98 R v Secretary of State for Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd [2000] ECR-I 9235, para 54.
Although the Court did not clarify its position, this approach has been broadly interpreted as identifying sustainable development as a source for inspiration for EU Law, rather than as a legal obligation.32 Nevertheless, despite this lack of specification, it is possible to find sustainable development defined in EU secondary Law, although the definitions differ in each context. However, the three pillars of sustainability -economic growth, social cohesion33 and environmental protection- are de facto accepted as the core of sustainable development, both at the EU and at the international level.
Theoretical framework: Normative Power Europe
‘Europe attainment is normative rather than empirical… It is perhaps a paradox to note that the continent which once ruled the world through the physical impositions of imperialism is now coming to set world standards in a normative basis.’ 34
Ian Manners, proponent of the theory of Normative Power Europe, used this quote from Rosecrance to introduce, in the early 2000s, the idea that the EU does not constitute a military or civilian power in the international sphere anymore. Rather than that, it conceptualised the EU as a normative power, a power to “shape conceptions of normal”. 35 According to his theory, the most important aspect of the EU role at the international level is what it is, a power different from civilian power, or great powers, because of “its historical context, hybrid polity, and political-legal constitution”. Jean Monnet, one of the founding36 fathers of the EU, already pointed out its normative power -although without encompassing it within any theory- when he expressed, in 1962, that “[u]nity in Europe does not create a new kind of great power; it is a method for introducing change in Europe and consequently in the world”.37 Already back then, the EU positioned itself as an international actor intended to
32 McGillivray, Donald, and Holder, Jane. “Locating EC Environmental Law” Yearbook of European Environmental Law. 2001. 151.
33D. McGillivray and J. Holder, "Locating EC Environmental Law", Yearbook Of European Law20, no. 1 (2001): 150, doi:10.1093/yel/20.1.139.
34Richard Rosecrance, "The European Union: A New Type Of International Actor", in Paradoxes Of European Foreign Policy (repr., The Hague: Kluwer Law International, 1998), 22.
35 Ian Manners, "Normative Power Europe: A Contradiction In Terms?", JCMS: Journal Of Common Market Studies 40, no. 2, 2002, p.238-239.
36 Ibid.
37Jean Monnet, "A ferment of change", JCMS: Journal Of Common Market Studies 1, no. 3 (1962): 203-211, doi:10.1111/j.1468-5965.1962.tb00244.x. p. 22.
diffuse its ideas by “practicing what [they] preach”, as the European project was intended38 as a global effort with the aim of harmonizing and appeasing human differences within our increasingly globalised world.39 The particular nature of the EU provided it with three qualities: ontological, positivist and normative quality. By ontological quality it is understood40 the possibility of conceptualising the EU as a norm-changer within the international sphere. The positivist quality relates to how the EU does act in the international system as a changer of norms. And, finally, the normative quality reinforces that the EU should exert this responsibility at the international level. It should be noted that, in building its international 41 identity, EU constitutional norms have played an essential role. This is due to the particularities of the construction of the EU as a political actor, which has mainly taken place through a legal order based on treaties and guided by technocrats. 42
Now that the nature of the EU as a normative power has been laid out, it is necessary to specify what are those ideas that the EU wants to establish at the international level, the normative ground of the EU itself. This basis is constituted by nine norms, divided into two categories: core norms, which consist of the acquis communautaire et politique ; and minor norms, usually part of the EU constitution and practices, but which are far more challenged than core norms. In the first category we find peace, freedom, democracy, rule of law and43 respect for human rights and fundamental freedoms. Peace has been the central basis of the EU since its inception, as can be observed in the Schuman Declaration of 1950, the preamble of the European Coal and Steel Treaty in 1951, and the preamble of the Treaty of the European Communities -TEC- of 1957. 44 Freedom, along with peace, has been one of the main characteristics since the post-war period. The norm can be found in articles 2 and 3 of the Treaty on European Union (TEU), where the founding principles of the EU are laid down, as well as in the preamble of the Charter of Fundamental Rights of the European45 Union (CFREU). Democracy, Rule of Law and respect for Human Rights and Fundamental Freedoms were institutionalised in order to separate democratic western Europe from communist eastern Europe. They can be found in articles 2 and 6 of the TEU; the preamble 46
38Jean Claude Juncker- President of European Commission, "State Of The Union: Time For Honesty, Unity And Solidarity", 2015,
39 Julia Kristeva, ‘Europe Divided: Politics, Ethics, Religion’, in Crisis of the European Subject (New York: Other Press, 2000), 114–15.
40Manners, "Normative", 52. 41 Ibid.
42 Ibid, 241.
43 Manners, “Normative”, 242-244.
44 And nowadays can be found in article 3 TEU as the “Union’s aim”. 45 Previously article 6 of the TEU.
and Title II of the CFREU; as well as in article 208 of the TFEU, on development and 47 cooperation policy; article 21 of the TEU, on common foreign and security provisions; and in the Copenhagen criteria, set by the European Council in 1993 to determine accession into the EU.48 On the other hand, the minor norms are: social solidarity, anti-discrimination, sustainable development and good governance. Social solidarity emerged as a remedy to the significant liberalization experienced in the EU as a result of the adoption of the Single European Act (SEA) and the economic and monetary union. For this reason, it is enshrined in the preambles of the TEC and the TEU, as well as in article 2 TEU, where the values of the Union are stipulated. In addition, it conforms the core of social policies and the Economic and Social Committee. Due to the sentiment of uneasiness in the 1990s regarding racism and prosecution of minorities, anti-discrimination measures were included in 13 of Title XI of the TEC -nowadays article 19 of the TFEU- and in the Copenhagen criteria, and it was later recognized as a provision having general application in article 10 of the TFEU. Sustainable development became highly relevant after the Rio summit of 1992, which lead to its inclusion in article 2 of the TEU, as well as in articles 2 and 6 of the TEC -which nowadays would correspond to article 3(3) of the TEU and article 11 of the TFEU. Finally, in the aftermath of the Commission’s resignation of 1999, as well as the result of the concerns regarding the double standards on democratic reforms in eastern Europe, and the recognition of the relevance of governance in the success of aid programmes, good governance was included as a norm, becoming part of the Copenhagen criteria and of several political documents and declarations. Later, it was included in article 15(1) of the TFEU within the provisions with49 general application.
Regarding the method in which these norms are diffused, it is significant to acknowledge that no violent means are employed. In this sense, there are six main diffusion processes, the50 51 first of which is contagion, which is the unintended spreading of EU ideas to other political actors.52 The second process is informational diffusion, which results from new EU policy initiatives -strategic communications- or initiatives from the EU Presidency or the president of the Commission -declaratory communications-. We can also findprocedural diffusion, which
47 Previously article 177 of the Treaty establishing the European Community (TEC). 48 Manners, “Normative”, 242-244
49Romano Prodi, "2000-2005: Shaping The New Europe", (Speech, European Parliament. Strasbourg, 2000). Commission, “European governance - A whiter paper” COM (2001) 428 Final. 50Ian Manners, "Normative Power Europe Reconsidered: Beyond The Crossroads", Journal Of European Public Policy 13, no. 2 (2006): 182-199, doi:10.1080/13501760500451600. p.184. 51 Manners, “Normative”, 244.
52Laurence Whitehead, The International Dimension Of Democratization: Europe And The Americas (repr., Oxford: Oxford University Press, 1996). 6.
takes place through the institutionalisation of EU relations with third parties. This method is facilitated by conditionality in agreements. Another method also facilitated by conditionality 53 is transference, a mechanism of diffusion that occurs when the EU and third parties exchange goods, aid, trade or technical assistance by way of “significant substantive or financial means”; or by the export of communitarian norms and standards. 54 The material presence of the EU in other countries and international organisations can also result in norm diffusion, in this case overt diffusion. The final method is the cultural filter. Indeed, depending on the interaction between the idea-formation process and the construction of political and social identity of the subjects, the cultural filter can influence the repercussion of international norms and political learning within third states, as well as of organisations, which results in the adoption, variation or rejection of said norms. 55
Through applying a normative power perspective, it is possible to comprehend and evaluate the ideational features of the EU by employing its tripartite analytical framework to review EU’s principles, actions and impacts of the policy subject to scrutiny.56 As the name indicates, the process consists of three main steps.
Firstly, analysis of the principles that are being upheld. To this end, one must first conduct an empirical analysis in which the principle, or principles, upheld are described. Following that, a comparative assessment of such principles and how they are implemented needs to take place, keeping aware of the difficulties derived from distinguishing between facts and values. At this stage, it is also necessary to look into questions of legitimacy, coherence and consistency, to ensure that the EU is to be perceived as “living by example”. 57
Secondly, analysis of the ways in which the actions upholding the principles are carried out. From a normative power perspective, these actions are expected to be more permanent if they are not achieved through coercion or merely material incentives, but rather through “persuasion, argumentation, and the conferral of shame or prestige”. 58
53 Manners, “Normative”, 245.
54Marise Cremona, "The European Union As An International Actor: The Issues Of Flexibility And Linkage", European Foreign Affairs Review 3, no. 1 (1998): 86-90.
55Catarina Kinnvall, Cultural Diffusion And Political Learning (repr., Lund [Sweden]: Studentlitteratur, 1995). 61-71.
56 Ian Manners, "The Social Dimension Of EU Trade Policies: Reflections From A Normative Power Europe Perspective", European Foreign Affairs Review 14 (2009): 785.
57 Ibid, 792. 58 Ibid, 793.
Thirdly, analysis of the impact of the previously analysed principles and actions. At this stage, the impact and desired result vary depending on the policy object of examination. 59
Now that the main characteristics of the theory of Normative Power Europe and its analytical framework have been decoded, it is relevant for the research to review the academic perceptions of their application in the field of sustainable development.
Literature review: NPE and sustainable development
To review the existing literature on NPE and sustainable development is necessary since, as Falkner puts it, one always has to “retain a critical perspective on any claim that power serves global interests and universal values”. 60
It seems appropriate to begin with Thomas Diez, who claims normative power is not exclusive to the EU, with other great powers, such as the US, having exercised it too. 61 Vogler and Johansson-Nogués, on the other hand, support Manner’s perspective and argue that EU’s action cannot be compared to any other international actor. They understand, as does Manners, that the EU is predisposed to act in a normative manner in the international sphere due to “its distinct historical evolution, its hybrid supranational-intergovernmental polity and its constitutional configuration”, which makes it sui generis. This consideration is62 further reinforced by the unparalleled role of the EU in promoting sustainable development at the international level. 63
Moreover, while Manners established the essence of EU’s role in the international realm in the nature of the EU itself -this is, what the EU is-, Diez argues that it is instead defined by its opposition to the ‘other’. According to him, there are four forms of ‘othering’ the EU utilizes: the other as an existential threat; the other as inferior; the other as violating 59 Ibid, 796.
60Robert Falkner, "The Political Economy Of ‘Normative Power’ Europe: EU Environmental
Leadership In International Biotechnology Regulation", Journal Of European Public Policy 14, no. 4 (2007): 520, doi:10.1080/13501760701314326.Falkner, 2007, 520. In Afionis and Stringer, “Biofuels”. 61 Thomas Diez, "Constructing The Self And Changing Others: Reconsidering `Normative Power Europe'", Millennium: Journal Of International Studies 33, no. 3 (2005): 613-636,
doi:10.1177/03058298050330031701.
62 John Vogler and Hannes R. Stephan, "The European Union In Global Environmental Governance: Leadership In The Making?", International Environmental Agreements: Politics, Law And Economics 7, no. 4 (2007): 389-413, doi:10.1007/s10784-007-9051-5. In Afionis and Stringer, “Biofuels”. 63 Durán and Morgera, “Environmental integration”.
universal principles; and the other as different. As the second and third are the most64 relevant to our discussion, since these are the ones applicable to the case of sustainable development in international environmental governance, we will not get into detail with the rest. According to Diez, when the EU treats the ‘other’ as inferior, it looks down upon it, as it considers to be an impairment to its standards. 65 Seeing the other as violating universal principles could be considered a variation of the previous form, with the difference that here these standards are seen as being global, and therefore the ‘other’ has to abide by them. 66 In the context of sustainable development and international governance, the ‘other’ tends to be identified with the US, portraying it as a ‘laggard’ in contrast with the EU, understood as the ‘leader’.67 Diez’s perspective is supported by Scheipers and Sicurelli in their work ‘Normative Power Europe: a credible Utopia?’, who agree in that EU’s opposition to the US is the base of its identity as a green international actor, 68 an alternative power that can safeguard the international environmental regime. Additionally, these authors further back69 this perspective by drawing from Lucarelli’s findings and identify the different ways in which70 the EU evidenced an ‘othering’ towards the US during the Kyoto negotiations. The authors call attention to the framework in which the main principles emerged, which the EU considered more “progressive” than that of the US. They also allude to the instruments the EU used to achieve its objectives regarding global policy, mainly multilateralism, global binding targets and the precautionary principle, which strongly contrast with the US bet for unilateralism and voluntary domestic schemes. And they finally highlight EU’s persistent endorsement of international law-making. 71 Other authors echo this antagonism, although they do not frame it within Diez’s ‘othering’ theory. Vogler and Stephan also address EU’s commitment to multilateralism and to the UN as a “contrasting identity to that of the US” in their article on EU’s role in global governance. In such fashion, Lightfoot and Burchell, in 72 their work on the EU role during the 2002 World Summit on Sustainable Development73 continuously identify two main positions during the negotiations: the EU, as a flag-bearer of
64 Diez, “Reconsidering”, 628. 65 Ibid.
66 Ibid.
67 Sybille Scheipers and Daniela Sicurelli, "Normative Power Europe: A Credible Utopia?", JCMS: Journal Of Common Market Studies 45, no. 2 (2007): 451, doi:10.1111/j.1468-5965.2007.00717.x. 68 Ibid.
69 Ibid, 448, 450-451
70 Sonia Lucarelli, "Values, Identity And Ideational Shocks In The Transatlantic Rift", Journal Of International Relations And Development 9, no. 3 (2006): 304-334, doi:10.1057/palgrave.jird.1800095. 71 Scheipers and Sicurelli, “Credible”, 451-452.
72 Vogler and Stephan, “Leadership”, 391. 73 Lightfoot and Burchell, "Green Hope”.
sustainable development;74 and the US, leading a group of countries more reluctant to it. Furthermore, to showcase the EU as an advocate for global sustainable development policy, they often use quotes from the World Development Movement, such as “the EU had played a welcome role in pushing the US to accept a target”; or even “the US is undoubtedly the 75 rogue state threatening the very concept of sustainable development, but it is the EU who has the potential to save the day”.76 In addition, Mörth also references EU’s forward agenda-setting in the international sphere as a contrast to the US in her analysis of EU’s normative power in the WTO. Following this argument, it should be mentioned that Henrik 77 Larsen also considers opposition to be a defining feature of EU’s normative power in the field of international relations. Nevertheless, in his conceptualisation, he understands ‘opposition’ as the external realm in which the EU exerts its power, power which derives from the different components that constitute the EU in itself. 78
Another common criticism by Diez, supported by Oberthür and Roche Kelly among others, is that there exists an ‘influence gap’. A gap between EU’s standards, principles and ideas79 and concrete policies and measures in the context of global environmental governance and, more explicitly, sustainable development both internally and externally. This gap is seen as an obstacle to NPE, since international credibility of the EU is seen as a necessary condition
74 Baldock, David. “The EU sustainable development strategy: from Lisbon to Goteborg and beyond - an evaluation of progress” Report prepared for the European Economic and Social Committee, Institute for European Environmental Policy, Brussels, 2003, 7. In Simon Lightfoot and Jon Burchell, "Green Hope Or Greenwash? The Actions Of The European Union At The World Summit On Sustainable Development", Global Environmental Change 14, no. 4 (2004): 337,
doi:10.1016/j.gloenvcha.2004.07.002.
75 World Development Movement, “The Zero Sum Summit”, Press Release, 30 August 2002. In In Simon Lightfoot and Jon Burchell, "Green Hope Or Greenwash? The Actions Of The European Union At The World Summit On Sustainable Development", Global Environmental Change 14, no. 4 (2004): 341
76 Ibid, 339.
77 Ulrika Mörth, "The EU As A Normative Power In The WTO (?)", Stockholm's Center For Public Sector Research, 2004, 16.
78 Henrik Larsen, "The EU As A Normative Power And The Research On External Perceptions: The Missing Link", JCMS: Journal Of Common Market Studies 52, no. 4 (2013): 898,
doi:10.1111/jcms.12109..
79 Thomas Diez, "Constructing The Self And Changing Others: Reconsidering `Normative Power Europe'", Millennium: Journal Of International Studies 33, no. 3 (2005): 613-636,
doi:10.1177/03058298050330031701; Sebastian Oberthür and Claire Roche Kelly, "EU Leadership In International Climate Policy: Achievements And Challenges", The International Spectator 43, no. 3 (2008): 35-50, doi:10.1080/03932720802280594. In Stefan Renckens, Grace Skogstad and Matthieu Mondou, "When Normative And Market Power Interact: The European Union And Global Biofuels Governance", JCMS: Journal Of Common Market Studies 55, no. 6 (2017): 1432-1448,
to exercise its international leadership.80 Nonetheless, while this gap has become visible within the context of global governance, most authors agree that this gap is first and foremost internal and they argue that it needs to be saved first at the EU level in order to successfully resolve it at the international level . Lightfoot and Burchell, as aforementioned, 81 specifically analysed the EU actions in the WSSD in order to affirm whether the EU commitment to sustainable development was more than just declaratory . In their findings, 82 they indicated that EU’s institutional lack of coherence was mainly due to its failure in integrating sustainable development within all EU policy areas before take up international commitments on the matter. This lack of compliance with these preliminary requirement led to the external perception that the EU was having an inconsistent behaviour, which reflected poorly on its credibility as an international actor. Scheipers and Sicurelli also came to the83 same conclusion when observing the lack of cohesion of the EU Member States in the first round of negotiations of the Kyoto Protocol. However, they were more critical and alluded 84 to the work of Nicolaïdis and Howse, who have gone further into this position, branding the EU as ‘EUtopia’ because its international projection is not based on what it is, but on what it wants to be. Therefore, EU identity is based on its role internationally. Alluding to this lack 85 86 of coherence, Stocchetti, in her analysis on NPE and policy coherence with regards to development, argues that these “intra- and (…) inter-institutional tensions” have been reduced since the Lisbon Treaty, with the recognition of an external dimension to sustainable development in the hands of EU institutions. 87 A completely different perspective on this issue is that of Baker in her paper on EU’s commitment to sustainable development. Baker 88 argues that the EU’s commitment is actually empty rhetoric, or, as she puts it, “merely symbolic”. This is due mainly to the fact that what the EU advocates for is not sustainable89 development, but ecological modernisation. Ecological modernisation, according to her, 80 Scheipers and Sicurelli, “Credible”, 435-436; Lightfoot and Burchell, “Greenhope”; Vogler and Stephan, “Leadership”; R. Daniel Kelemen, "Globalizing European Union Environmental Policy",
Journal Of European Public Policy 17, no. 3 (2010): 336, doi:10.1080/13501761003662065. 81 Lightfoot and Burchell, “Greenhope”; Vogler and Stephan, “Leadership”; Scheipers and Sicurelli, “Credible”, 435-436;
82 Lightfoot and Burchell, “Greenhope”. 83 Ibid, 341-342.
84 Scheipers and Sicurelli, “Credible”, 445.
85 Kalypso Nicolaïdis and Robert Howse, "‘This Is My Eutopia ...’: Narrative As Power", JCMS: Journal Of Common Market Studies 40, no. 4 (2002): 767-792, doi:10.1111/1468-5965.00397.
86 Ibid; Mörth,”WTO”, 16; Susan Baker, "Sustainable Development As Symbolic Commitment:
Declaratory Politics And The Seductive Appeal Of Ecological Modernisation In The European Union",
Environmental Politics 16, no. 2 (2007): 298, doi:10.1080/09644010701211874.
87 Marikki Stocchetti, Inside The European Consensus On Development And Trade. Analysing The EU's Normative Power And Policy Coherence For Development In Global Governance. (repr.,
Helsinki: Unigrafia, 2013). 88 Baker, “Symbolic”. 89 Ibid, 298
would be a better conceptualisation to EU’s approach, since she understands it as seeking 90 “to encourage growth as a solution to the planet’s ecological crisis”. 91 However, this conceptualisation does not seem to have had much echo in the academic community, which is divided on whether the EU has manage to salvage that gap or not. Nonetheless, there is currently little doubt as to the role of the EU as a leader in global environmental governance,
which undermines the claim of the lack of credibility due to inconsistency. 92
Sustainable development and trade
Since this paper has a focus on sustainable development applied to trade -through the example of EU biofuel policy-, it seems appropriate to look into what authors argue on this issue more specifically.
It is a noticeable feature of this kind of literature the general disconnection between trade and sustainable development, with notable exceptions. There is a number of authors that93 make reference to the introduction of environmental measures into trade, but do not link it with the inclusion of social cohesion clauses, or vice versa, such as Baker, 94 Mörth,95 Kelemen, and Kerremans and Orbie. Some of these authors, especially those who deal96 97 with social measures and trade but do not mention the environmental ones, like Kerremans and Orbie, and Burgoon, tend to understand this linkage within the international protection98 of human rights as opposed to sustainable development. Furthermore, there is a group of99 authors that do not believe the EU is exerting NPE in the field of trade -whether to promote human rights or sustainable development-, since they argue that EU’s actions are interest-driven. Among these authors we can find Reckens et al., 100 Stocchetti, Kelemen,
90 Ibid. 91 Ibid, 304.
92 Afionis and Stringer,”Biofuels”; Lightfoot and Burchell, “Greenhope”.
93 Exceptions such as Afionis and Stringer,”Biofuels”; Stocchetti, “Consensus”; Reckens, Skogstad and Mondon, “Interact”; Diez, 2005, “Reconsidering”, footnote 47.
94 Baker, “Symbolic”. 95 Mörth, “WTO”.
96 Kelemen, “Globalizing”.
97 Bart Kerremans and Jan Orbie, "The Social Dimension Of European Union Trade Policies", European Foreign Affairs Review 14 (2009): 629-641.
98 Brian Burgoon, "The Distinct Politics Of The European Union's "Fair Trade" Linkage To Labour Standards", European Foreign Affairs Review, no. 14 (2009): 643-661
99 Ibid; Philip Alston, "Labour Rights As Human Rights: The Not So Happy State Of The Art", in Labour Rights As Human Rights (repr., Oxford: Oxford University Press, 2005), 3. In Richard G. Whitman, Normative Power Europe. Empirical And Theoretical Perspectives (repr., London: Palgrave MacMillan, 2011); Burgoon, “Linkage”.
Rosamond, Falkner and Starke.101 They argue, more specifically, that social and environmental standards are non-tariff barriers in disguise aimed at boosting EU trade competitiveness,102 a hidden protectionism which some consider to be designed to prevent the economic prosperity of developing countries. 103Within this line of thought, some question whether the kind of power the EU is exerting in these cases is market-based, like Reckens et al., or Afionis and Stringer. This theory is known as Market Power Europe, and its main proponent is Chad Damro. 104 According to him, EU’s external power comes from the significant size of the European market and its potential for “externalisation of [its] economic and social market-related policies and regulatory measures”.105This would give room for a practice that Vogel calls ‘trading up’, in which businesses wanting to enter the European market adjust their policies to meet EU standards, which could cause these businesses to lobby their governments into legally adopting these standards in order to ensure their competitiveness vis-à-vis other businesses that do not trade with the EU.106 Reckens et al., Kelemen, Rosamond and Stocchetti draw from both NPE and MPE and maintain that EU trade behaviour responds to an interlinked version of both. 107Nevertheless, Wood, repraised by Afionis and Stringer, argues that, even though the EU may use its market size as an instrument for its different objectives, its motivations remain ideological. 108
These different visions on the (normative) power exerted internationally by the EU in relation to the promotion of sustainable development norms in the international environmental regime paint a clearer picture on the matter. This allows for a better understanding of the subject ahead of the next sections of this paper, specially in relation to the debates on EU coherence.
101 Linda Starke, Signs Of Hope: Working Towards Our Common Future (repr., Oxford [England]: Oxford University Press, 1990), 9. In Baker, “Symbolic”; Kelemen, “Globalizing”, 336; Rosamond, 2014; Afionis and Stringer, “Biofuels”, 115, 120; Falkner, “Political”, 521; Martin Kohr, “Third World Network”, statement 340, 1999, 14. In Burgoon, “Linkage”, 648; Stocchetti, “Consensus”, 26. 102 Ibid.
103 Starke, “Signs”, 9. In Baker, “Symbolic”, 301; M. Kohr, statement, 14. In Burgoon, “Linkage”, 648. 104 Chad Damro, "Market Power Europe", Journal Of European Public Policy 19, no. 5 (2012): 682-699, doi:10.1080/13501763.2011.646779.
105 Ibid, 682.
106 David Vogel, "Trading Up: Consumer And Environmental Regulation In A Global Economy", Foreign Affairs 74, no. 6 (1995): 119, doi:10.2307/20047393.
107 Reckens et al., “Interact”, 1434; Kelemen, “Globalizing”, 336; Rosamond, “Three ways”, 134; Stocchetti, “Consensus”, 268; Richard Youngs, "Normative Dynamics And Strategic Interests In The EU's External Identity", JCMS: Journal Of Common Market Studies 42, no. 2 (2004): 415-435, doi:10.1111/j.1468-5965.2004.00494.x. In Diez, “Reconsidering”, 625.
108 Steve Wood, "The European Union: A Normative Or Normal Power?", European Foreign Affairs Review 14 (2009): 113. In Afionis and Stringer, “Biofuels”, 115; and, in a more nuanced way, Youngs
Conclusion
As we have seen throughout this chapter, sustainable development is an elusive notion that both the international community nor the EU can specifically define. Nonetheless, since it is one of the values that constitute the identity of the EU, it is one of the values that it tries to export externally, according to the theory of normative power Europe. For this reason it is necessary to analyse the coherence of EU promotion of sustainable development, both at the domestic and at the international levels. As the first step in this analysis, the next chapter will be focused on an analysis of the sustainability of EU biofuel policy. Accordingly, the new directive regulating biofuels and their sustainability will be analyse with regards to the three pillars of sustainable development: economic growth, social cohesion and environmental protection. This exemplifying analysis will assess whether the EU has grounds in itself to apply the value of sustainable development into the external dimension of this policy in a coherent way.
CHAPTER TWO.
INTERNAL DIMENSION OF EU BIOFUELS
The previous chapter was devoted to setting out the main ideas of the theoretical framework that is going to be applied in this thesis -NPE- as well as the notion of sustainable development and the academic debates that emerge from the role of the EU as a normative power pushing forward the international agenda on sustainable development. It was also established that, if the EU wants to be a credible actor in the international scene, it first needs to be coherent with the principles it wants to export in its internal governance. To this end, this chapter will analyse the current legislation on biofuels -the new RED II- according to the three pillars of sustainability. Since the general analysis of the thesis revolves around the image of the EU as an international actor, the analysis in this chapter will be focused on actions at the EU level, even though the matters of the three pillars are of shared competence between the EU and its Member States. Throughout this analysis, comparisons with the work of Afionis and Stringer 109 will be drawn, since these two scholars analysed, back in 2012, the sustainability of EU biofuels taking into account these same three pillars of sustainability. As their analysis was based on the previous RED,110 this thesis’ analysis will make a comparative on whether the EU addressed the concerns that arose from the previous RED or not. Nevertheless, before getting to the analysis, this thesis will lay down the key notions in biofuel governance, as well as the evolution of biofuel legislation and its sustainability considerations. It should be noted that the notions employed are those of the EU. The reason behind this is that the analysis is trying to assess the coherence of EU legislation and, thus, using EU notions will display this coherence, or lack thereof, in a clearer manner.
109 Stavros Afionis and Lindsay C. Stringer, "European Union Leadership In Biofuels Regulation: Europe As A Normative Power?", Journal Of Cleaner Production 32 (2012): 115,
doi:10.1016/j.jclepro.2012.03.034.
110 Directive 2009/28/EC of the European Parliament and of the Council on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, 2009, O.J. L140/16. (RED)
Notion of biofuels
‘Biofuels’, as defined in article 2 of the Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018, on the promotion of the use of energy from renewable sources, means “liquid fuel for transport produced from biomass”.111Biomass is also defined in the same article as:
‘(…) [T]he biodegradable fraction of products, waste and residues from biological origin from agriculture, including vegetal and animal substance, from forestry and related industries, including fisheries and aquaculture, as well as the biodegradable fraction of waste, including industrial and municipal waste of biological origin.’ 112
For the purposes of this thesis, it is necessary also to mention bioliquids, which are “liquid fuel for energy purposes other than for transport, including electricity and heating and cooling, produced from biomass”;113 and ‘biomass fuels’ -“gaseous and solid fuels produced from biomass”-,114 as they have the same legal consideration and are subject to the same rules and regulations as biofuels.
We should also bear in mind the distinction between 1st generation biofuels, or conventional biofuels, and 2nd and 3rd generation biofuels, or advanced biofuels. Conventional biofuels are those that are produced from food or feed crops, such as sugar, starch or vegetable oil. On the other hand, advanced biofuels are those whose production does not come from 115
feedstock that competes directly with food and feed crops, causing sustainability concern. Instead, these biofuels come from produce such as agricultural residues and other wastes, non-food crops and algae.116 It should be noted that, to this day, the EU consumption of biofuels is predominantly of conventional biofuels: bioethanol -made from cereals and sugar- as the main replacement to petrol, and biodiesel -from vegetable oils mainly- as the main
111 Directive (EU) 2018/2001 of the European Parliament and of the Council on the promotion of the use of energy from renewable sources, 2018, O.J. L328/82, art. 2. (RED II)
112 Ibid
113 Ibid, Article 1(32). 114 Ibid, Article 1(27).
115 Commission Press Release, MEMO/12/787 (Oct. 17, 2012). 116 Ibid.
replacement to diesel. 117 Nonetheless, the EU strategy for 2030 is to move beyond first generation biofuels, with target of 0% of conventional biofuels in the share of renewable energy for the transport sector by 2030, and promote the use of advanced biofuels instead. This resolution has been made to avoid indirect land-use changes (ILUC), which is the 118
take up on land that was previously used for food production in order to produce food and feed crop-based biofuels. This can lead to a displacement of this same food production to land that was previously not destined to agriculture, thus potentially endangering ecosystems as it leads to forest mass destruction - therefore preventing CO2 absorption and increasing greenhouse gases present in the atmosphere. 119 This has traditionally been the main claim raised by those who oppose biofuels utilization.
Historical evolution of biofuels and their sustainability criteria
In order to better understand the current EU approach to biofuel policy and its sustainability criteria, it is indispensable to first dive into the historical evolution of biofuel use and production, and the political reasons that led to its strong promotion at the EU level.
To begin with, it should be noted that, even though the use of biofuels began in the mid-19th century, its production was not so relevant until it sharply increased in the early 2000s. 120 This significant growth was the consequence of the rising awareness on global climate change, which led to the recognition of the need to develop the production of renewable energy as a principle in both the Stockholm 121 and Rio122 Conventions, in 1972 and 1992 respectively. Additionally, in December 1997, the international agreement called the Kyoto Protocol was adopted as part of the action of the UNFCCC. 123 This agreement introduced internationally binding targets to reduce greenhouse gas (GHG) emissions. The European Community was set to reduce its emissions by 8% against 1990 levels by 2012, and by 18%
117 Ibid.
118 Directive (EU) 2018/2001 of the European Parliament and of the Council on the promotion of the use of energy from renewable sources, 2018, O.J. L328/82 (RED II), art 26(1).
119 Commission Press Release, MEMO/12/787 (Oct.17, 2012)
120 European Parliamentary Research Service, "EU Biofuels Policy. Dealing With Indirect Land Use Change" (2015). (EPRS, 2015)
121 Stockholm Declaration on the Human Environment, in Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14 (1972). (Stockholm Declaration)
122 Rio Declaration on Environment and Development, in Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I) (1992). (Rio Declaration)
123 Kyoto Protocol to the United Nations Framework Convention on Climate Change. UN Doc. FCCC/CP/1997/7/Add.1 (1998). (Kyoto Protocol)
(also against 1990 levels) by 2020.124 In light of these developments, in 2003, the European Parliament, along with the Council, passed Directive 2003/30/EC on the promotion of the use of biofuels or other renewable fuels for transport. The main aim of this provision was to promote the use of biofuels in order to reach a target of 5.75% share of renewable energy in the European transport sector by 2010.125The Member States had the flexibility to set their own national indicative targets, as long as they complied with the overall communitarian target, and no criteria on its sustainability was laid down.126 This lack of sustainability dimension to biofuel policy can be surprising if we take into account the parallel integration of sustainable development into EU law,127 but let us remember that it wasn’t until the Lisbon Treaty, in 2007, when sustainable development was set to be taken into account for all EU policies and activities. 128
The situation change in 2009, when the European Parliament and the Council repealed and amended Directive 2003/30/EC with Directive 2009/28/EC on the promotion of the use of energy from renewable sources. Not only this Directive, also known as the Renewable Energy Directive (RED) increased the previous target to 10% of share of energy from renewable sources in fuels used for transport to be reached before 2020 ; it also129 acknowledged, for the first time, that biofuel and bioliquid production can lead to the destruction of biodiverse land, setting in place specific environmental sustainability criteria. These criteria were laid down in article 17 of Directive 2009/28/EC, and without their compliance, biofuels (and bioliquids) could not be accounted towards the national targets, nor the renewable energy obligations, and could not be eligible for financial support. These criteria were the following:
● to be considered sustainable, biofuels had to achieve greenhouse gas savings of at least 35% in comparison to fossil fuels. This savings requirement had to rise to 50% in 2017, and in 2018 it had to rise again to 60%, but only for new production plants; ● biofuels and bioliquids couldn’t be grown in areas converted from land with previously
high carbon stock such as wetlands or forests;
124 Ibid.
125 Directive 2003/30/EC of the European Parliament and of the Council on the promotion of the use of biofuels or other renewable fuels for transport, 2003, O.J. L123/1, Article 1.
126 EPRS, 2015.
127 See chapter one: Maastricht Treaty, Amsterdam Treaty, Rio Declaration 1992. 128 Lisbon treaty, Article 11.
