Our responsibility for future generations

An article published in the ninth issue of Honours Review. Honours Review is a publication of students at the University of Groningen, the Netherlands.

As questions and problems regarding the environment have become increasingly worrisome, global actors, such as governments, have been struggling to put forward solutions to this ecological crisis. The concept of sustainable development was one such product of these efforts. In 2009 the European Union (EU) claimed to have ‘mainstreamed’ the sustainable development objective and ‘taken the lead internationally in the fight against climate change’.[1] References to sustainable development can be found in primary EU treaties, the Treaty on the Functioning of the European Union (TFEU) and the Treaty of the European Union (TEU), as well as in the EU Charter of Fundamental Rights. The European Council, one of the main EU institutions, also confirmed that sustainable development is indeed a ‘fundamental objective of the European Union’.[2]

As for what sustainable development as a concept entails, the EU has embraced the widely accepted definition by the Brundtland Commission, coining it, ‘development which meets the needs of the present without compromising the ability of future generations to meet their own needs [3] This definition encompasses the concepts of intragenerational and intergenerational equity. While the former refers to equity within a generation, the latter is concerned with equity between generations with the idea that future generations have a right to a parallel quality of environmental resources and assets that present and past generations have had.[4]

This article will focus on intergenerational equity. While the European Union purports to be a global leader in sustainable development, questions can be raised as to whether the Union truly incorporates intergenerational equity in practice. Is there a gap between their theory and practice? To find an answer to this question, one should analyse the representation of environmental interests of future generations within the context of European Union law. There may be potential mechanisms to safeguard these interests.

Representation in Theory

Although the environment as such was not addressed in the original EU found­ing treaties, commendably, it has been one of the Union’s central issues of focus since the 1970s, when the Community adopted their first Environment Action Programme. Soon after, the 1987 Single European Act introduced an environment-oriented chapter which used language such as ‘preserve’ – which has clear future connotations – but lacked specific reference to future generations.[5] While the 1997 Treaty of Amsterdam first dedicated the EU to the sustainable development objective, the most prominent early reference to future generations was in the EU Charter of Fundamental Rights, which states, ‘Enjoyment of these rights entails responsibilities and duties with regard [...] to future generations’.[6] It is worth noting, however, that this phrase is stated in the preamble, which ‘has no binding legal force’;[7] this is similar to intergenerational equity references in the Aarhus Convention, to which the EU is a signing party.[8]

Unfortunately, that is essentially the extent to which intergenerational equity is addressed in EU treaties, and the EU’s policy documents do not fare much better. Indeed, they have been accused of ‘actually [being] weaker in their treat­ment of responsibility to future generations’ than the aforementioned Aarhus preambles.[9] Regarding EU policy, the most straightforward acknowledgement of the importance of intergenerational equity was made by the Council in the 1990 Declaration on the Environmental Imperative, which states that ‘[m]ankind is the trustee of the natural environment and has the duty to ensure its enlightened stewardship for the benefit of this and future generations.’ However, this ‘duty’ is non-binding due to its declaratory nature.[10]

Since then, the term ‘intergenerational equity’ has been absent from most EU environmental policy documents and the transparency in the key decision makers’ respective institutions exposes the Union’s hesitation in using this terminology. When the European Commission proposed their 2005 Draft Declaration on Guiding Principles for Sustainable Development, it used the phrase ‘intra- and intergenerational equity’.[11)]Upon comparison with the final strategy adopted by the Council in 2006, a notable amendment was the excision of this term[12] Despite the Union legislator’s decision to refrain from using the term ‘intergenerational equity’, it is debatable whether or not this actually matters when it comes to determining the Union’s legal obligations toward future generations. The reason is that the EU already pur­ports to actively embrace the principle of sustainable development, which incorporates intergenerational equity as an aspect of its definition (‘without compromising the ability of future generations to meet their own needs’).[3]

Due to the fundamental nature of intergenerational equity within the sustainable development concept, it can therefore be argued that the EU has already legally committed itself to this endeavour countless times. Hence, as sustainable development – encompassing intergenerational equity – is so heavily ingrained in EU law, the EU legislator’s attempts to detract from the emphasis to be placed on intergenerational equity are futile. While the EU has a clear legal commitment to intergenerational equity, and ‘has explicitly identified sustainable development as the overarching policy governing all of its activities,’ in practice, little has been done to ensure future generations are left with equivalent environmental opportunities that the past and present generations have benefitted from. In reality, ‘the overall trend is one of ongoing environmental deterioration’.[9] What is the reason behind this? At least one causal factor plays a significant role in this theory-practice gap: political short-termism.

EU political short-termism and sustainable development

Because environmental impacts of human activity are generally only apparent in the long-term,[13] short-term approaches and solutions are counterintuitive. The Union itself has learned this the hard way, in their ongoing debate over the use of biofuels to reduce transportation carbon emissions, with the overarching objective of sustainable development. Unfortunately, while biofuels may bring short-term reductions and improvements,[14] recent studies indicate that the 365% increase in the use of palm oil biofuels from 2006-2012 has ‘Indirect Land Use Change’ effects,[15] which is detrimental in terms of emissions in the long-term and eliminates at least two-thirds of the proposed savings.[16] Regrettably, environmental law, from the local to the international level, is victim to political short-termism,[17] and the European Union is no exception. Since the EU’s original call for increased use of these energy sources, the abovementioned biofuel project has been heavily influenced by biofuel producers, and the Union has been accused of even ‘inventing an artificial market for the biofuel industry’.[18]

It has been recognized countless times that a long-term approach is essential in achieving sustainable development,[19] and, consequently, the classic issue of short-termism that exists within the Union can indeed be seen as a threat to climate change.[20],[21] On a positive note, in the September 2015 midterm review of the Europe 2020 strategy, the European Political Strategy Centre (EPSC) addressed the need to ‘fight against the inherent risks of short-termism in political decision making, creating incentives for actions and disincentives for inactions’.[22] Although the EPSC did not make an express link to the protection of the future generations’ rights, an ‘inherent risk of short-termism’ is indeed the fact that ‘economic growth [is] given primacy’ and ‘environmental limits [are] not generally taken into account’ in existing liberal democracies.[23]

Ultimately, the existence of such a decision-making structure results in the environmental interests of future generations being ignored. Interestingly, the acknowledgement of the effect of short-termism on sustainable development is seemingly more prevalent in the corporate sector, due to newfound appreciation for the long-term value of sustainable approaches.[24] It is logical, however, considering the fact it has been shown that corporate decision-makers can directly benefit (financially) from invoking long-term sustainable practices.[25] In contrast to the private sector, the representatives of EU institutions serve fixed terms: five years for the Parliament and the Commission,[26] and a varying amount for the Council depending on the legislation of the Member States with respect to their ministers. What is the solution to this issue? To entrust the EU politicians with terms of unlimited duration? No – this is evidently inefficient and undemocratic. There may be other reasonably attainable alternatives.

Toward a better attainment of intergenerational equity

To ensure that future generations’ interests are not disregarded in the European Union’s decisions of today, an independent body tasked with the pursuit of intergenerational equity is needed; or, as articulated by the Institute for European Environmental Policy, a ‘Guardian for Future Generations’.[27]This independent representative could ensure that the European Union’s environmental practices comply with their legal commitments to intergenerational equity. The establishment of an EU body specifically charged with representing future generations could promote the development of a practice consistent with intergenerational equity.

On the international level, the best-known example of such a body is the Oxford Martin Commission for Future Generations. While the Commission is not an advisory for any specific country or government, their influence is undeniable. Just one year after publishing Now for the Long Term, a report focusing on the effects of political short-termism on future generations,[28] it had already been accessed over one million times, ‘showcased at 34 events across the globe and [...] endorsed by a range of world leaders’.[29]

Another paragon of such a body exists in Hungary, which established a Parliamentary Commissioner for Fundamental Rights. Within this body there is a Deputy-Commissioner tasked with the protection of the interests of future generations which monitors and reports on the enforcement of these interests, highlights infringements, and directs the Commissioner to initiate judicial proceedings with the Constitutional Court when necessary.[30] The duty to preserve the environment for future generations is specifically enshrined throughout the Fundamental Law.[31] The Commissioner has succeeded in protecting future generations’ interests in significant ways; for example, by preventing the privatisation of public water utilities, initiating a forest law that strengthens nature protection, and by preventing construction plans spanning ‘thousands of hectares of green areas’.[26]

On the Union level, a body regulated in a similar manner could be incredibly beneficial in ensuring the promotion of intergenerational equity. Currently, there are numerous Parliamentary committees which are able to provide recommendations on the initiation of legislation. However, as they are composed of Members of Parliament, similar short-termism issues would likely arise; thus it is unadvisable to appoint such a committee to represent future generations. On the other hand, the establishment of an EU Agency to fulfil this purpose may be plausible. Although there exists a European Environment Agency (EEA), they do not have a mandate to promote intergenerational equity and their role is purely advisory.[31] A sub-division of the EEA with a specific intergenerational equity mandate could be established, or an entirely new agency could be created.

Safeguards should be implemented in either scenario that ensure protection from severe infringements by legislators – this could materialise in a variety of forms. One option is to give such an agency the competence to initiate judicial proceedings with the Court of Justice (CJEU). While gaining standing under Article 263 TFEU to initiate annulment proceedings is challenging due to the stringent Plaumann criteria,[33] if the Court were willing to accept that such an agency is in fact representing future generations as a legal person, the Court could perhaps accept that in certain instances the agency is indeed directly and individually concerned.

An alternative solution would be to enact a protocol similar to the Protocol ‘on the application of the principles of subsidiarity and proportionality’,[26] which incorporates a political safeguard that allows national parliaments to challenge EU compliance with these principles by forcing the Commission to further justify their legislative proposals. A similar protocol could be enacted to allow the proposed EU agency to engage in similar challenges regarding the compliance of EU legislation with the principle of intergenerational equity (or perhaps sustainable development as a whole). These two proposed safeguard mechanisms have potential to fit within the Union’s existing structure and would undoubtedly contribute to the objective of ensuring protection of these interests.

Conclusion

In order to maintain a habitable world, sustainable development must be at the forefront of EU policymakers’ and legislators’ agendas and a guiding principle for decision making. The present approach to sustainability within the Union essentially disregards the principle of intergenerational equity, which makes sustainable development inconceivable, as this principle is fundamental to its very definition. The EU is in grave need of a mechanism to protect the interests of future generations, preferably in a more influential rather than advisory manner.

The creation of an EU agency tasked with safeguarding the principle of intergenerational equity could influence decision making by giving it the capacity to initiate annulment proceedings with the CJEU, or to enact a protocol which can require the Union to further consider its legislative drafts. Evidently, the interests of future generations can be affected in a plethora of ways, and the Union should assess all potential options and combine complementary approaches. Overall, in environmental endeavours the EU and the larger global community should abide by one overarching maxim, as expressed by philosopher John Rawls: ‘Do unto future generations as you would have past generations do unto you’.[34]

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