Combating Climate Change in Environmental Law: Perspectives from different Jurisdictions

Climate change is one of the most pressing issues of our time. It knows no borders and affects people worldwide. Environmental law is a key tool to combat these challenges, that impact our people and our planet, resulting in a broad and diverse field with different approaches to various issues in different jurisdictions.¹

Waseda University in Tokyo hosts an annual symposium focusing on various legal topics through a comparative lens. The 2024 symposium focused on the role of environmental law in addressing climate change. Participants included students and professors from the University of Pennsylvania Carey Law School, National Taiwan University, Seoul National University, and Bucerius Law School, in addition to the participants from Waseda University. Students from each law school presented the most important environmental law issues in their jurisdictions. This article summarizes these diverse presentations.

A. The United States: Judicial primacy in environmental law*

Most current United States (U.S.) environmental laws were passed in the 1970s in response to environmental activists‘ fight to protect their country’s air, land, and water from widespread degradation.² Over this decade, the U.S. Congress enacted landmark laws — such as the Clean Water Act, National Environmental Policy Act, and Clean Air Act — that remain the primary source of American environmental law today. Since this period, Congress has been slow or unable to address new environmental challenges, and the judiciary has increasingly shaped environmental policy.

The executive branch, particularly administrative agencies, long had significant discretion to adapt laws to modern environmental needs. However, the U.S. Supreme Court recently curtailed this power, limiting agencies\textquotesingle ability to issue new regulations. This shift toward judicial primacy raises a fundamental question: In a time of environmental crisis, which branch of the federal government has the authority to protect the people and the environment?

I. The rise and fall of executive agency control over U.S. environmental law

Understanding how the executive branch received and lost broad discretion to implement environmental laws requires examining the separation of powers in the U.S. Constitution.³ The legislative branch (the U.S. Congress) drafts legislation, and bills receiving a majority of votes are signed into law by the president (U.S. Const. art. I, § 7, cl. 3). Executive agencies ensure the laws are faithfully executed by promulgating regulations to enact statutes. Finally, the judiciary has sole authority to declare government actions, including statutes and regulations, unconstitutional (U.S. Const. art. II, § 3).⁴

The Supreme Court has employed different understandings of the separation of powers to address challenges to agency actions.⁵ Formalism views the Constitution as strictly delineating the powers of each branch of government — boundaries courts must zealously enforce.⁶ A functionalist approach asks if an interpretation will, in practice, upset the intended balance of power.⁷ If not, new distributions of powers between the branches are permissible.⁸

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¹ Comp. German Federal Environment Agency, Climate Protection and Energy Law, https://www.umweltbundesamt.de/themen/klima-energie/klimaschutz-energiepolitik-in-deutschland/rechtliche-instrumente/klimaschutz-energierecht (last accessed April 21, 2025).

^* Jack Miklaucic (Student, University of Pennsylvania Carey Law School),Connor Henderson (Student, University of Pennsylvania Carey Law School), Claire Hill (Law Clerk, Allen & Overy Sherman Sterling LLP).

² U.S. Environmental Protection Agency, Milestones in EPA and Environmental History, May 31, 2024,accessible at: https://www.epa.gov/history/milestones-epa-and-environmental-history (last accessed April 21, 2025).

³ See The Federalist No. 47 (James Madison) („The preservation of liberty“ requires „the three great departments of power to be separate and distinct. . . .“).

⁴ „Art III, § 1, cl. 2 – Historical Background on Judicial Review,“ U.S. Congress Annotated Constitution, accessible at: https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/\#ALDF_00025176 (last accessed April 21, 2025).

⁵ See John F. Manning, Separation of Powers As Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1942 (collecting cases where the Court invoked the separation of powers doctrine in addressing „countless . . . issues relating to the operation of the modern federal government“).

⁶ Manning (no. 5), pp. 1943, 1944; see, e.g., Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935) („each of the three general departments of government must remain entirely free from the control or coercive influence, direct or indirect, of either of the others“); INS v. Chadha, 462 U.S. 919, 951 (1983) („The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.“).

⁷ Manning (no. 5), pp. 1942, 1943.

⁸ See, e.g., Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977) (writing that the primary concern is whether a practice „disrupts the proper balance between the coordinate branches“); Morrison v. Olson, 487 U.S. 654, 696 (1988) (holding that so long as a political appointment is made such that the President can still perform their constitutional duties, it does not violate separation of powers).

As the nation faced new regulatory problems, a purely formalist approach to lawmaking was viewed as impractical. By the early- to mid-20th century, government agencies such as the Environmental Protection Agency (EPA) were important sources of law affecting everyday life. Following the unprecedented delegation of power to agencies during the New Deal, Congress passed the Administrative Procedure Act of 1946 (APA), introducing comprehensive rules governing agency actions (5 U.S.C. §§ 551 et seq).⁹ If third parties can prove they have suffered a legal wrong because of an agency action, the APA provides a right to challenge that action in court (5 U.S.C. § 702). The APA allows courts to review and set aside actions unsupported by substantial evidence, „arbitrary and capricious,“ beyond the statutory authority granted by Congress, or that are otherwise unconstitutional (5 U.S.C. § 706).

1. Chevron and judicial deference to agency statutory interpretation

Following the passage of the APA, administrative actions were subject to significant legal challenges questioning the proper interpretation of agencies\textquotesingle statutory power. The APA directs courts to „decide all relevant questions of law and interpret constitutional and statutory provisions“ (5 U.S.C. § 706). In Skidmore v. Swift & Co., the Supreme Court acknowledged that while agency interpretations of law are not controlling, they „do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance“ to the extent they are persuasive.¹⁰ Both before and after Skidmore, though, it is clear that it is the duty of the courts to „say what the law is.“¹¹ Less clear was how much deference a court could and should give to an agency’s „experienced and informed“ interpretation of the law.

Skidmore guided deference to agencies until 1984, when the Supreme Court decided Chevron U.S.A. Inc. v. Natural Resources Defense Council, which governed judicial review of American administrative law for forty years.¹² Chevron outlined a two-step process for judicial review of agencies‘ statutory interpretations.¹³ First, courts analyzed the statute, seeking the unambiguous „specific intention“ of Congress for the issue presented.¹⁴ When courts were unable to identify one unambiguous intention or statutory meaning, they were required to defer to „reasonable“ agency interpretations.¹⁵

Countless environmental agency rules were upheld under Chevron deference:¹⁶ nearly 70 % of environmental statutory provisions examined under its approach were found ambiguous, and, when reaching step two, agency interpretations were affirmed in more than 85 % of cases.¹⁷ Chevron allowed agencies promulgating environmental rules to employ expertise to weigh „policy trade-offs“ that judges are „peculiarly unsuited“ to evaluate.¹⁸ As environmental regulatory schemes became increasingly complex in response to planetary crises like widespread air and water pollution, biodiversity loss, and climate change, Chevron was a key bulwark against judicial challenges from anti-regulatory and anti-environment interests.

In recent years, however, the Supreme Court has taken a more formalistic approach, setting stricter limits on executive branch authority over environmental law. In West Virginia v. EPA, the Supreme Court held that, without „clear congressional authorization,“ the EPA lacked authority to direct power plants to reduce greenhouse gas emissions – only Congress, the Court found, could make decisions of such „vast economic and political significance.“¹⁹ What constitutes „clear congressional authorization“ or gives a matter „vast economic and political significance“ remains unclear.²⁰ Scholars thus anticipate that the Court’s ruling will „cast a shadow“ over the ability of the EPA and other federal agencies to address the country’s most pressing matters, including climate change.²¹

American administrative law received another seismic shock with the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo.²² Loper Bright overruled Chevron, holding the APA requires courts to „exercise . . . independent judgment to decide if an agency has acted within its statutory authority.“²³ In short, courts must determine the „single, best meaning“ of statutes without relying on agency interpretations despite agency subject-matter expertise.²⁴ Loper Bright promises enormous yet still uncertain consequences for U.S. environmental law.

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⁹ Roni Elias, The Legislative History of the Administrative Procedure Act, 27 Fordham Env. L. Rev. 207, 213-14 (2015).

¹⁰ Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

¹¹ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 257 (2014).

¹² Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984); Merrill (no. 11), pp. 257, 258.

¹³ Chevron U.S.A. Inc. v. Nat. Res. Def. Council (no. 12), pp. 842, 845.

¹⁴ Chevron U.S.A. Inc. v. Nat. Res. Def. Council (no. 12), pp. 842, 843.

¹⁵ Chevron U.S.A. Inc. v. Nat. Res. Def. Council (no. 12), pp. 843, 844.

¹⁶ Interestingly, the Chevron decision was initially viewed as a win for deregulatory interests, and the agency interpretation the Court deferred to lessened the impact of the Clean Air Act on power plants. Merrill, Separation of Powers as Ordinary Interpretation, at 276, 280. It was decades later, when ideological conservatives began to understand the doctrine as an obstacle to challenging agency action, when the doctrine first truly came under fire. Craig Green, Deconstructing the Administrative State: Chevron Debates and the Transformation of Constitutional Politics, 101 B.U. L. Rev. 619, 639-643, 658-661 (2021).

¹⁷ Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. Colo. L. Rev. 767, 795, 797 (2008).

¹⁸ Loper Bright Enterprises v. Raimondo, 144 S. Ct. at 2299 (2024) (Kagan, J., dissenting).

¹⁹ West Virginia v. E.P.A., 142 S. Ct. 2587, 2605 (2022)

²⁰ Thomas B. Griffith and Haley N. Proctor, Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine, 132 The Yale Law Journal Forum (November 21, 2022), accessible at: https://www.yalelawjournal.org/forum/deference-delegation-and-divination\#: :text=major%20questions%20doctrine.-,First%2C%20what%20makes%20a%20question%20 %E2 %80 %9Cmajor%E2 %80 %9D%3F,-The%20Supreme%20Court, https://www.cato.org/sites/cato.org/files/2023-09/cato-supreme-court-review-9.pdf\#page=23 (last accessed April 21, 2025).

²¹ Shelley Welton, A Dangerous, Even if Expected, Opinion on Climate, The Regulatory Review, (July 12, 2022), accessible at: https://www.theregreview.org/2022/07/12/welton-a-dangerous-even-if-expected-opinion-on-climate/ (last accessed April 21, 2025).

²² Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).

²³ Loper Bright Enters. v. Raimondo, (no. 22) p. 2262.

²⁴ Id.; See Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 103 (1983) (holding that reviewing courts must be at their „most deferential“ when reviewing agency decisions made „at the frontiers of science“).

2. The future of the administrative state & environmental law

Following West Virginia and Loper Bright, legal scholars expect agencies to face greater difficulty when justifying regulatory actions and defending challenges to past actions.²⁵ With the threat of greater judicial scrutiny for actions that may overstep or usurp Congressional authorization, new regulatory action will require the agency to provide more scrupulous and persuasive justification (per Skidmore).²⁶ In addition, although Loper Bright does not invalidate past decisions under Chevron, another decision held that regulated entities are able to challenge existing statutory interpretations underlying regulations based on the date of their injury rather than the effective date of the rule.²⁷ Collectively, these decisions make it easier for individuals and corporations to challenge and influence environmental laws,²⁸ jeopardizing decades of existing protections and likely hindering agency efforts to modernize regulations to meet evolving environmental needs.

There are, however, important limits on Loper Bright’s effect on environmental law. First, courts may still defer to agency findings of fact.²⁹ Furthermore, Loper Bright will only impact actions where a statute is unclear with regard to an agency’s discretion.³⁰ For this reason, Loper Bright nominally shifts power to the legislative branch, which is free to delegate interpretive powers to agencies (or to codify Chevron deference).³¹ Indeed, some environmental statutes, such as the Clean Water Act, contain clear authorizations that should survive judicial review.³² Finally, under Skidmore, courts may still give weight to an agency’s persuasive interpretation.³³ While Loper Bright affirms legislative power, it also gives tremendous power to a judiciary which lacks the capacity and expertise to evaluate challenges to highly technical laws.³⁴ Experts anticipate that the U.S. judicial system, „already overtaxed and plagued by delays,“ is ill-equipped for the „unavoidable deluge of litigation in areas requiring subject-matter expertise with no increase in capacity or resources.“³⁵ Whereas the functionalist approach of Chevron permitted a practical, flexible relationship between the branches of government, the Supreme Court’s stark formalist turn will be much less forgiving. Moreover, critics note that the Court’s new formalism „ensures that it alone will continue to make the most important decisions in our national life.“³⁶

Although the Court’s formalism is not without precedent, it nevertheless marks an uneasy concentration of power in the only unelected branch of the U.S. government at a time when efficient, informed, and democratic decision-making is essential to an effective and just approach to the greatest environmental crisis in the country’s history.

II. Alternative Approaches

Amid the uncertainty concerning the administrative state’s ability to address pressing environmental challenges, other legal avenues offer more promise.

1. Economic Incentives

It has been notoriously difficult to pass significant environmental legislation in Congress since the landmark acts of the 1970s. Using economic incentives to achieve environmental aims, however, has had more political success. Notably, energy subsidies in the form of tax credits have received bipartisan support in Congress for decades, offering a politically viable policy tool for advancing a climate-friendly agenda.³⁷ For example, research demonstrates that the Energy Investment Tax Credits and Production Tax Credits for wind and solar have generally succeeded in expanding renewable energy generation in the U.S.³⁸ More recently, the Inflation Reduction Act offered sweeping incentives driving an estimated \$3.5 trillion in energy supply infrastructure investment over the next decade, potentially reducing net GHG emissions an additional 10 % from 2005 levels by 2030.³⁹ Incentive programs nonetheless leave much to be desired in terms of environmental protection. Even under best-case-scenario projections, the U.S. falls 50 % short of its Paris Agreement commitments. Moreover, incentive-driven policies have not effectively promoted biodiversity, clean air, or clean water.⁴⁰

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²⁵ See Cleary Gottlieb, After Chevron: What the Supreme Court’s Loper Bright Decision Changed and What It Didn’t (Oct. 2023), accessible at: https://www.clearygottlieb.com/news-and-insights/publication-listing/after-chevron-what-the-supreme-courts-loper-bright-decision-changed-and-what-it-didnt (last accessed April 21, 2025); Thomson Reuters, In Loper Bright’s shadow: An overworked judiciary becomes further burdened (Oct. 3, 2024), https://www.thomsonreuters.com/en-us/posts/government/loper-bright-judiciary-impact/; Cary Coglianese, Cary, A Legal Earthquake, Regulatory Review (Aug. 8, 2024), accessible at: https://www.theregreview.org/2024/08/08/coglianese-a-legal-earthquake/ (last accessed April 21, 2025); George Gigounas et al., U.S. Environmental Law Post-Chevron (July 2024), accessible at: https://www.dlapiper.com/en/insights/publications/2024/07/us-environmental-law-post-chevron/ (last accessed April 21, 2025).

²⁶ Gottlieb (no. 25).

²⁷ Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2448 (2024); Coglianese (no.25).

²⁸ Gigounas et al. (no. 25).

²⁹ Loper Bright Enters. v. Raimondo, (no. 22). at 2261 (slip op.) (2024)

³⁰ Loper Bright Enters. v. Raimondo, (no. 22) p. 2261.

³¹ William P. Berry, The End of the Chevron Era, REGULATORY REVIEW (Aug. 5, 2024), accessible at: https://www.theregreview.org/2024/08/05/berry-the-end-of-the-chevron-era/ (last accessed April 21, 2025).

³² DLA Piper, U.S. Environmental Law Post-Chevron (July 2024), https://www.dlapiper.com/en/insights/publications/2024/07/us-environmental-law-post-chevron/.

³³ Loper Bright Enters. v. Raimondo, (no. 22) p. 2267. Experts note that the EPA, for example, had already shifted away from a reliance on Chevron deference in its rulemaking in favor of the more thorough judicial review standards under Skidmore. Sidley Austin LLP, Environmental Law Implications of Loper Bright and the End of Chevron Deference (July 2, 2024).

³⁴ See Thomson Reuters, In Loper Bright’s shadow: An overworked judiciary becomes further burdened (Oct. 3, 2024), https://www.thomsonreuters.com/en-us/posts/government/loper-bright-judiciary-impact/; Coglianese (no. 25); Shaw, Kate, The Imperial Supreme Court, The Regulatory Review (Aug. 7, 2024), accessible at: https://www.theregreview.org/2024/08/07/shaw-the-imperial-supreme-court/ (last accessed April 21, 2025).

³⁵ Thomson Reuters, In Loper Bright’s shadow: An overworked judiciary becomes further burdened (Oct. 3, 2024), https://www.thomsonreuters.com/en-us/posts/government/loper-bright-judiciary-impact/.

³⁶ Shaw (no. 34).

³⁷ Varun Sivaram & Noah Kaufman, The Next Generation of Federal Clean Electricity Tax Credits, Center on Global Energy Policy at Columbia University, School of International and Public Affairs, (June 3, 2019), accessible at: https://www.energypolicy.columbia.edu/publications/next-generation-federal-clean-electricity-tax-credits/ (last accessed April 21, 2025).

³⁸ Sivaram/Kaufman (no. 37).

³⁹ Princeton Zero Lab Preliminary Report: The Climate and Energy Impacts of the Inflation Reduction Act of 2022, 12 (2022); Larson et. al., Rhodium Group, A Turning Point for US Climate Progress: Assessing the Climate and Clean Energy Provisions in the Inflation Reduction Act, 1 (2022).

⁴⁰ See generally Hao Wang et. al., The environmental effectiveness of water quality trading: Evidence from emissions trading programs in China, 224 Ecological Economics (Oct. 2024).

Tax credits and subsidies cannot replace traditional regulation.

2. Climate Litigation

In 2015, a group of minors sued then-president Obama and several executive agencies for failing to reduce greenhouse emissions. The plaintiffs alleged climate harms violating their constitutional rights to be free from deprivation of life, liberty, and property without due process of law.⁴¹

In November 2016, a federal district court denied a motion to dismiss, finding that „the right to a climate system that can sustain human life is fundamental to a free and ordered society.“⁴² The court of appeals reversed, noting that holding for the plaintiffs would exceed the power of the judiciary by forcing other branches of government to take political action.⁴³ However, the district court’s decision in Juliana v. U.S. remains the high-water mark of federal litigation challenging government actions on a theory of implied constitutional rights to a clean and healthful environment.

Plaintiffs and legal advocacy organizations interested in constitutional environmental rights have looked to state courts and constitutions in recent years as the federal judiciary becomes increasingly hostile to environmental interests. Given significant cultural and political diversity, some state governments are more disposed to compromise with environmental rights litigants. In 2022, young people in Hawaii sued the state government for violating their constitutional rights to a clean and healthful environment.⁴⁴ Hawaii agreed to a pretrial settlement requiring the state to develop „a concrete and comprehensive \ldots plan“ to fully decarbonize the Hawaii Department of Transportation by 2045.⁴⁵

States may protect rights beyond the U.S. Constitution, including creating potentially powerful rights of action for climate litigants. Eight state constitutions have environmental rights in their constitution. Of these, the Montana, Pennsylvania, and New York state constitutions confer substantive rights and corresponding affirmative duties to a clean environment. Political organizers are now building momentum for the passage of „green amendments“ in states with more environmentally minded electorates across the U.S.⁴⁶

Substantive constitutional environmental rights eliminate the need, as in Juliana, to argue for rights by implication. In Held v. Montana, a group of young people brought state law claims against Montana, asking the court to declare unconstitutional a range of state laws and actions harmful to the environment and to implement a remedial climate plan.⁴⁷ The court dismissed most claims and the remedial plan for overstepping the proper judicial role; at trial, the sole issues were the constitutionality of two provisions of Montana’s Environmental Policy Act (MEPA).⁴⁸

Ultimately, the Held court found that (1) the right to a „clean and healthful environment“ encompasses the right to a stable „climate as part of the environmental life-support system,“, and (2) Montana owed an affirmative duty „to take active steps to realize this right.“⁴⁹ The court struck down MEPA provisions preventing state agencies from considering climate impacts when permitting energy projects and preventing courts from stopping energy projects due to climate impact.⁵⁰

In December 2024, the Montana Supreme Court upheld the lower court ruling, finding that the Montana State Constitution’s guarantee of „a clean and healthful environment“ extends to a „stable climate system.“⁵¹

Held, the most important legal win for those hoping to use constitutional environmental rights to force government action on climate, offers strategic lessons for future climate litigants, including a compelling theory of causation. It also suggests the limitations of this approach.⁵² Both Held courts were likely comfortable reaching their first-of-its-kind conclusion because ruling on limited claims and limited relief avoided any intimation of the judicial branch overstepping its constitutional authority. Although state climate litigation will likely increase in importance as a driver of environmental law, it will remain limited by the U.S. judiciary’s understanding of its power and the lack of constitutional or statutory frameworks to assert environmental rights in many states. Judicial review is no substitute for politics.

III. Conclusion

With the Supreme Court curtailing the authority of executive agencies and Congress seemingly unable to respond—or act in the first instance—the judiciary has become the central arbiter of environmental law. Although alternative legal avenues—such as economic incentives and state-level climate litigation—offer some promise, they may be insufficient to meet the urgent environmental challenges. A multifaceted strategy is essential to address environmental crises in an era of judicial primacy in environmental law.

B. South Korea: Comprehensive climate policy*

Beginning in 2024, Korean climate and environmental policies will being made at a whole-of-government level—a departure from the view that climate and environmental policies

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⁴¹ Juliana v. U.S., Denial of Motion to Dismiss, 2 (Nov. 10, 2016).

⁴² Juliana v. U.S., (no. 41) p.39.

⁴³ Juliana v. U.S., No. 18-36082, 2020 WL 254149 (9^th Cir. Jan. 17, 2020) / Juliana v. U.S., Opinion, https://climatecasechart.com/wp-content/uploads/case-documents/2020/20200117_docket-18-36082_opinion.pdf (last accessed April 21, 2025).

⁴⁴ Navahine F. v. Hawai`i Dep’t of Transp., Complaint, accessible at: https://climatecasechart.com/wp-content/uploads/case-documents/2022/20220601_docket-1CCV-22-0000631_complaint.pdf (last accessed April 21, 2025).

⁴⁵ Navahine F. v. Hawai`i Dep’t of Transp., (no. 44) p.68.

⁴⁶ National Caucus of Environmental Legislators, Green Amendment, accessible at: https://www.ncelenviro.org/issue/green-amendment/\#: :text=for%20Advancing%20Equity-,Green%20Amendments%20support%20avoidance%20of%20unfair%20targeting%20of%20communities%20of,poor%20air%20and%20water%20standards (last accessed April 21, 2025).

⁴⁷ Held v. State of Montana, Findings of Fact, Conclusions of Law and Order, 1-4, 97-98 accessible at: https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230814_docket-CDV-2020-307_order.pdf (last accessed April 21, 2025).

⁴⁸ Held v. State of Montana, Findings of Fact, (no. 47) pp. 2, 97-103.

⁴⁹ Held v. State of Montana, Findings of Fact, (no. 47) pp. 91, 94-98.

⁵⁰ Held v. State of Montana, Findings of Fact, (no. 47) pp. 101-102.

⁵¹ Held v. State, Supreme Court Opinion, 20, accessible at: https://climatecasechart.com/wp-content/uploads/case-documents/2024/20241218_docket-DA-23-0575_opinion-1.pdf (last accessed April 21, 2025).

⁵² Held v. Montana, Order that Appeal May Proceed, accessible at: https://climatecasechart.com/wp-content/uploads/case-documents/2023/20231017_docket-DA-23-0575_order.pdf (order of the Montana Supreme Court) (last accessed April 21, 2025).

^* Bo Hyoung Lee (Attorney at Law, Shin & Kim LLC; Ph.D. in Law), Jin Seong Lee (Partner, Kim & Chang; J.S.D.), Jeongmin Kim (Director of Office of Student affairs, Seoul National University School of Law; Ph.D. in Law).

are simply environmental policies under the Ministry of Environment (MOE) or energy policies under the Ministry of Trade, Industry and Energy (MOTIE). Academic approaches to climate and environmental policies in Korea are also evolving towards stronger links between policy and research areas. This section examines the current status and prospects of Korean climate and environmental policies from the perspectives of energy, artificial intelligence (AI), and competition policy.

I. Energy policy and climate and environmental policy

Korea is pursuing energy policy in a way that gradually strengthens the principle of environmental protection. Accordingly, in the following we’ll examine major issues of interest regarding the Korean energy industry.

1. The 11th Basic Plan for Electricity Supply and Demand

The Korean Basic Plan for Electricity Supply and Demand (BPESD) is an administrative plan that establishes electricity-demand-forecasts and supply plans to stabilize mid- to long-term power supply, and prepares facility plans and power-demand-management plans accordingly.⁵³

The government creates a plan every two years. In February 2025, the government announced the 11th BPESD, following a public hearing in September 2024. The demand part of this plan forecasts electricity demand in 2038 to be 129.3 GW, an increase of 31.0 GW from the maximum demand in 2023, and expects additional demand of 16.7 GW due to the expansion of the semiconductor industry and AI.

According to the supply plan, officials expect renewable energy supply to reach 78 GW by 2030 and 121.9 GW by 2038. These estimates reflect various policy measures meant to achieve Korea’s Nationally Declared Contribution under the Paris Agreement, focusing on solar and wind power facilities. When it comes to thermal power generation, the government will maintain its plan to convert 28 old coal plants to liquefied natural gas (LNG) by 2036, while shifting to carbon-free power generation such as hydrogen power plants. In addition, two new nuclear power plants and one small modular reactor (SMR) will be built by 2038.

The most notable outlook for electricity supply under the 11th BPESD is the active and continuous expansion of carbon-free energy. The proportion of carbon-free energy currently is 39.1 %, but officials expect carbon-free energy generation to exceed 53 % by 2030, and to reach 70.7 % by 2038.⁵⁴

That said, whether the BPESD is a binding administrative plan subject to litigation remain a subject of debate. Prior to the establishment of the BPESD, the government implemented the Long-term Plan for Electricity Demand and Supply to direct the operations of the Korea Electric Power Corporation (KEPCO), the monopoly electricity supplier in Korea, in accordance with national supply and demand policy. In this case, it was understood that the Long-term Plan for Electricity Demand and Supply was mandatory and binding.⁵⁵ However, some suggest that the power generation facility plan included in the Basic Plan is not a definite plan to be created according to the annual schedule, but rather a simple „forecast“ of the expected size of the facility.⁵⁶ In fact, in an administrative lawsuit seeking the revocation of the 8th BPESD, which was established in 2017, the lower court of Korea dismissed the claim, denying Administrative Disposal of the Basic Plan.⁵⁷

In the future, uncertainties for power business operators may increase due to factors such as grid system saturation and the introduction of the capacity bidding system in selecting power generation operators. Given these conditions, it would be reasonable to view the BPESD not as a restrictive administrative plan. Rather, it should be seen as a guideline that indicates the direction of electricity supply and demand.

2. Introduction of a clean hydrogen system

In May 2024, the Korea Power Exchange (KPX) announced competitive bidding for the 2024 clean hydrogen power generation market. The only successful bidder was Korea Southern Power Co., Ltd. (KOSPO), a wholly-owned subsidiary of Korea Electric Power Corporation (KEPCO). Compared to the total hydrogen power volume submitted to the bidding, the ratio of the awarded volume remained at 11.8 %. However, this is the first time that a clean hydrogen power generation market has been introduced in Korea, and it is also the first of its kind in the world.

The legislature introduced clean hydrogen power generation in June 2022 through an amendment to the Act on the Promotion of Hydrogen Economy and the Safety Management of Hydrogen. The government previously included hydrogen fuel cells in the Renewable Portfolio System (RPS) under the „Act on the Promotion of the Development, Use and Diffusion of New and Renewable Energy,“ guaranteeing economic viability through the issuance of Renewable Energy Certificates (RECs) by the Korea Energy Agency.

However, as the hydrogen economy develops, experts expect the proliferation of not only hydrogen fuel cells in the market, which produce electricity by hydrogen-oxygen reactions, but also hydrogen generators, which combust hydrogen. In terms of hydrogen types, blue hydrogen, which is produced by capturing and removing greenhouse gases generated in the process of hydrogen production, and green hydrogen, which is produced by using electricity generated from renewable energy sources, are expected to gradually replace grey hydrogen. The Hydrogen Act of Korea is understood to separate hydrogen energy from the existing RPS to systematically reduce the cost of all forms of hydrogen production. Prior to the introduction of the bidding market for clean hydrogen power generation, the MOTIE enacted the „Notification on the Operation of Clean Hydrogen Certification System“ in March 2024 to establish clean hydrogen certification standards and establish certification procedures.

The expansion of clean hydrogen is closely linked to the achievement of the national greenhouse gas reduction target. According to the National Basic Plan for Carbon Neutral and Green Growth established in 2023, the Korean government

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⁵³ Lee Jin Seong, Public Law Analysis on the Guiding Principle of the Electric Utility Act, 2022, p.102.

⁵⁴ MOTIE, Key Points of the 11th Baster Plan for Electricity Demand and Supply, 2025.

⁵⁵ Shin Jeong Sik, Plan for Re-characterization and System Improvement of the Basic Plan for Electricity Supply and Demand, Korea Power Exchange, 2014, p. 31.

⁵⁶ Nam Il Chong, Efficiency of Electricity Supply and Demand Plan and Power Generation Facility Investment Market“, Korea Development Institute 2013, p. 35.

⁵⁷ Seoul Administrative Court Decision No. 2018Guhap53344, rendered on January 10, 2020 (finalized on January 29, 2020).

plans to reduce greenhouse gases by supporting production of green hydrogen, blue hydrogen, and nuclear hydrogen at home and abroad. The expansion of the production and utilization of clean hydrogen has the effect of replacing the existing thermal fuel power source to some extent. However, controversy remains because blue hydrogen is still based on fossil fuels, leading to the possibility of greenwashing, and because the technology for capturing and storing carbon dioxide is unproven and therefore unstable. In addition, in the case of a facility that stores or transports ammonia—which is used as a carrier for hydrogen—local opposition and civil complaints regarding facility handling of the toxic gas should be fully considered.

II. AI policy and climate and environmental policy

The AI industry is intrinsically linked to a range of climate and environmental issues, particularly those related to carbon emissions and energy consumption. Noteworthy examples of research supporting this connection include: (i) A study finding that training Open AI’s GPT-3 model in 2022 generated approximately 502 tons of CO₂ emissions, an amount equivalent to the energy consumption of an average U.S. household over 120 years;⁵⁸ (ii) a report finding that conducting a single conversation with GPT-3 consumes about 500 milliliters of water, and around 700,000 liters of water were required to train GPT-3 in U.S.-based data centers. Given the anticipated global demand for AI by 2027, water consumption for AI training and use is projected to range between 4.2 billion and 6.6 billion liters, surpassing the annual water usage of Denmark.⁵⁹

These findings highlight the direct connection between the climate impact of AI and the establishment and operation of data centers. Data centers, which house the hardware and computer systems needed for data storage, processing, and management, are fundamental to the functioning of AI models such as Chat GPT-4.5, Claude 3 Opus, Gemini 1.5 Pro and others. The continuous input, storage, processing, and retrieval of data within these centers occur on a massive scale. Without significant advancements in data center efficiency, the continued expansion of the AI industry will increase the demand for energy production and cooling water.⁶⁰ In Korea, for instance, there were 187 data centers in 2022, but this figure is projected to rise to 216 by 2025, with an anticipated annual growth rate of approximately 10 %.⁶¹

1. Current regulatory framework for data centers in Korea

Korea has implemented several policies to manage data centers. The government has expressed concerns over the fact that 60 % of data centers and 70 % of power demand are concentrated in the Seoul metropolitan area, a trend that is expected to exacerbate the burden on the national power grid. As a result, there is a growing consensus on the necessity of decentralizing data centers.⁶²

In response, the government has introduced several measures. First, the authorities permit electricity suppliers to refuse the provision of electricity or defer supply to existing data centers for a specified period when facing challenges to maintaining power quality standards or grid reliability. Next, where new data centers have a significant impact on the power grid, induce excessive new investment, or face difficulties in connecting to the grid, electricity providers may defer supply for a specified period. Third, the government has been developing plans to minimize the negative grid impacts of new data centers in saturated areas, such as the Seoul metropolitan area. Finally, the government introduced tax incentives for data centers constructed in non-metropolitan regions.

In addition, to minimize the energy load for data center operation and to encourage the use of renewable energy sources, the Zero Energy Building (ZEB) roadmap mandates that, beginning in 2025, newly constructed data centers and privately constructed buildings exceeding 1,000 square meters must obtain ZEB certification.⁶³ Despite the implementation of various policies concerning data centers, the continuing absence of regulatory frameworks solely focused on addressing the climate and environmental impacts of data centers in Korea is notable.

2. Future outlook for data center regulation in Korea

In the European Union, there is a growing emphasis on the environmental impacts of data centers. In March 2024, the EU revised its directive to mandate that data center operators report on energy performance and sustainability, including metrics related to reducing energy and water consumption, increasing renewable energy usage, improving grid efficiency, and promoting waste heat reuse in adjacent facilities.⁶⁴ In light of these developments, there is an emerging discourse in Korea regarding the incorporation of environmental considerations into the regulatory framework for data centers.

Specifically, proposals have been made to require data centers, particularly those in the Seoul metropolitan area, to plan for operational efficiency and to report or certify their environmental impact, such as power consumption, water usage, and carbon emissions. These measures aim to reduce the environmental impact and impose environmental costs on data centers. But exploring how Korea can balance the growth of the AI industry with efforts to mitigate its climate and environmental impact will remain essential.

III. Competition policy and climate and environmental policy

From the perspective of law and economics, climate and environmental issues are mainly related to externalities, one cause of market failures, whereas competition issues mainly relate

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⁵⁸ Maslej, Nestor et. al., Artificial Intelligence Index Report 2023, arXiv: 2310.03715, 2023.

⁵⁹ Li, Pengfei et. al., Making AI Less „Thirsty“: Uncovering and Addressing the Secret Water Footprint of AI Models, arXiv: 2304.03271, 2023.

⁶⁰ Jungjin Jeong, Joonhwa Song, Trends in Standardization for Energy Efficient and Secure Data Centers, TTA Journal 158 (2015), pp. 87-93.

⁶¹ Digital Daily, The Private Data Center Market Is Expanding: Commercial Data Centers Expected to See Rapid Growth, 2023.

⁶² MTIE, Measures to Mitigate the Concentration of Data Centers in the Seoul Metropolitan Area, Press Release, January 18, 2023.

⁶³ To obtain Zero Energy Building (ZEB) certification, buildings must meet the 1++ energy efficiency rating, achieve at least 20 % energy independence, and install a Building Energy Management System (BEMS) or smart meters. Certified buildings receive various benefits such as eased floor area ratio and height restrictions, acquisition tax reductions, and reductions in infrastructure contributions.

⁶⁴ Directive (EU) 2023/1791; European Commission, Commission adopts EU-wide scheme for rating sustainability of data centres, March 15, 2024.

to imperfect competition, another cause of market failures. Therefore, climate and environmental policy and competition policy can be harmonized as policies to correct market failures. They aim to minimize externalities and imperfect competition.⁶⁵

That said, climate and competition policies may conflict in the process of enforcement. For example, businesses may exploit climate policy to engage in anti-competitive behavior, or, conversely, they may refrain from engaging in green cooperation due to a fear of competition policy enforcement.⁶⁶

Recent developments illustrate how concerns about competition law enforcement may inhibit climate and environmental collaboration. Notably, two climate-focused alliances have come under scrutiny: the California government’s voluntary agreement with several automakers to adopt stricter fuel efficiency standards,⁶⁷ and the Net-Zero Insurance Alliance, a coalition of insurers committed to aligning their portfolios with climate goals.⁶⁸ These initiatives have faced legal and political pushback, particularly from a group of 20 state Attorneys General — including Utah’s — who have issued warnings suggesting that such alliances may violate antitrust laws.⁶⁹ Additionally, the U.S. House Judiciary Committee has launched an investigation into whether cooperation aimed at achieving environmental, social, and governance (ESG) objectives constitutes anti-competitive behavior.⁷⁰

In this context, a competition policy that takes account of climate concerns and environmental policy is emerging. The EU⁷¹ and many countries, such as the Netherlands,⁷² Austria,⁷³ UK,⁷⁴ Japan,⁷⁵ and Singapore⁷⁶ already have provisions that integrate climate and environmental objectives in their competition regulations. Many international organizations and countries, including the OECD, Germany, Greece or Italy, are considering, if not already enacting, such regulations.⁷⁷

The Korea Fair Trade Commission (KFTC) takes no official position on the relationship between climate and competition policy, but discussions are beginning to take place in the academic community.

Korea’s position is illustrated by the current Monopoly Regulation and Fair-Trade Act (MRFTA) and KFTC enforcement caselaw.

First, since the purpose of the MRFTA is to „strive for balanced development of the national economy“⁷⁸, there is room for interpretation. Considering climate, environment and sustainability issues/considerations may be in line with the purpose of the MRFTA. However, unlike foreign competition regulations that recognize sustainability effects as a form of economic efficiency, thereby allowing certain reductions of competitions such as mergers to be justified on environmental grounds, the MRFTA does not include climate and environmental sustainability effects as economic efficiency. This makes it difficult to consider climate and environmental sustainability under the current law.

Second, in terms of enforcement, although the KFTC has reviewed many merger cases between eco-friendly businesses, there are no cases where it has considered eco-efficiency as the effect of efficiency promotion. This means that, under competition law, environmental benefits cannot be used to justify potentially anti-competitive conduct by arguing they result in broader efficiency gains like innovation or consumer welfare. While the KFTC recognizes that eco-efficiency is one of the competitive factors in unfair trade practices cases, it does not recognize eco-efficiency as a valid basis for efficiency promotion.⁷⁹ In other words, environmental benefits have not been accepted as a justification for approving mergers that may restrict competition.

As a result, it can be concluded that Korea has not yet harmonized its competition policy with its climate, environment and sustainability policy.

However, the participation of Korean entrepreneurs in various global initiatives related to carbon neutrality and ESG, such as the NZIA, may raise related issues, and the process of promoting Korean domestic climate and environmental policy may also raise issues under the MRFTA. Since foreign methodologies for harmonizing climate and environmental policy and competition policy are already being introduced, subsequent discussions are worth tracking.⁸⁰

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⁶⁵ Heo Seong Wook, Public Law and Private Law in Environmental Law – Focused on the Issue of Private Effectiveness of Public Standards –. Environmental Law Review, 39(1) (2017), pp.298-300; Park Sangin et al., Environmental Regulations and Competition Policies, Korea Fair Trade Mediation Agency, 2008, p.123.

⁶⁶ See OECD, Environmental Considerations in Competition Enforcement, 2021, pp.11-14; Kim Jeongmin, A Study on the Concretization of the Principle of Sustainable Development in the Principle of Environmetal Law: Focusing on the Harmonization between Sustainability Policy and Competition Policy (Doctoral dissertation, Seoul National University, Seoul, Korea) 2024, Chapter 2 Section 4 Paragraph 3.

⁶⁷ Office of Governor Gavin Newsom (California) (press release), California and Major Automakers Reach Groundbreaking Framework Agreement on Clean Emission Standards, July 25, 2019, accessible at: http://www.gov.ca.gov/2019/07/25/california-and-major-automakers-reach-groundbreaking-framework-agreement-on-clean-emission-standards/?utm_source=chatgpt.com (last accessed April 21, 2025).

⁶⁸ Bloomberg News, Net-Zero Insurers Uncover New Climate Adversary in Antitrust Law, January 19, 2022, accessible at: https://www.bloomberg.com/news/articles/2022-01-19/net-zero-insurance-coal-exit-plans-impeded-by-antitrust-laws?embedded-checkout=true (last accessed April 21, 2025); Munich Re, Munich Re discontinues NZIA membership, March 31, 2023, accessible at: https://www.munichre.com/en/company/media-relations/media-information-and-corporate-news/media-information/2023/media-release-2023-03-31.html (last accessed April 21, 2025).

⁶⁹ MLex, US state AGs warn 50 large asset managers over ESG-related commitments potentially violating antitrust laws, March 31, 2023, accessible at: https://www.mlex.com/mlex/articles/1915638/us-state-ags-warn-50-large-asset-managers-over-esg-related-commitments-potentially-violating-antitrust-laws (last accessed April 21, 2025).

⁷⁰ MLex, US House Judiciary Committee advances inquiry into antitrust violations over ESG goals, July 6, 2023, accessible at: https://www.mlex.com/mlex/articles/1914297/us-house-judiciary-committee-advances-inquiry-into-antitrust-violations-over-esg-goals (last accessed April 21, 2025).

⁷¹ Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements.

⁷² Guidelines on Sustainability Agreements, Policy rule: ACM’s oversight of sustainability agreements.

⁷³ Guidelines on Sustainability Agreements for companies.

⁷⁴ Guidance on environmental sustainability agreements.

⁷⁵ Guidelines Concerning the Activities of Enterprises, etc. Toward the Realization of a Green Society Under the Antimonopoly Act.

⁷⁶ Guidance Note For Environmental Sustainability Collaborations.

⁷⁷ The regulations of the above countries incorporate competition effects as well as sustainability effects into the economic efficiency test. If the pro-sustainability effect offsets the anti-competition effect, the Conduct that has both anti-competitive and pro-sustainability effects is assessed as lawful. See Kim Jeongmin (no. 66), Chapter 3 Section 1.

⁷⁸ See Article 1 of the MRFTA.

⁷⁹ See Kim Jeongmin (no. 66), Chapter 4 Section 1-2.

⁸⁰ See Kim Jeongmin (no. 66), Chapter 5.

C. Taiwan’s Climate Response Act 2023: What Is It and Why Now?*

In February 2023, Taiwan enacted the long-awaited „Climate Change Response Act“ (CCRA) to align with global climate trends and address local challenges. The CCRA covers key aspects of climate governance, including greenhouse gas (GHG) reduction, climate adaptation, and just transitions. It is the first legislation in Taiwan specifically designed to comprehensively address climate issues.

Traditionally, Taiwan’s environmental legal system was built upon single-issue laws.⁸¹ Climate legislation was no exception. Prior to the CCRA, Taiwan only had the „Renewable Energy Development Act“ (2009) and the „Greenhouse Gas Reduction and Management Act“ (2015), which, as their names suggest, focused solely on renewable energy development and GHG reduction. Alongside the „Basic Environmental Act“ (2003), which provided guidance for overall environmental policies, these laws served as the legal foundation for Taiwan’s climate policies prior to the CCRA. To better address and coordinate the new climate policies, the Environmental Protection Agency (EPA) was reformed and upgraded to the New Ministry of Environment.⁸²

Several questions arise in connection to the CCRA: Why did the Legislative Yuan (the Congress of Taiwan) pass the CCRA in 2023, eight years after the adoption of the Paris Agreement at COP21⁸³ in 2015? And what led to the institutional change mentioned above? To analyze the strengths, deficiencies, and future development of the CCRA, one must understand its legislative context. To provide a foundation for future research, this article will first review the contents of CCRA and then examine its political and social context.

I. Climate Change Response Act

The CCRA represents a major overhaul of its predecessor, the Greenhouse Gas Reduction and Management Act of 2015 (GGRMA). With seven chapters and 63 articles, the new legislation expands beyond the singular focus on greenhouse gas (GHG) reduction to incorporate a holistic approach to climate governance.

1. 2050 Net Zero Emission Target

A primary goal of the CCRA is to legally enshrine Taiwan\textquotesingle s 2050 net-zero emissions target, see Art. 4 Climate Change Response Act (CCRA).⁸⁴ It aligns Taiwan with international climate targets as countries increasingly pledge to achieve net zero by 2050. To achieve this target, the CCRA also specifies responsibilities for various government agencies to support this transition.

2. Climate Adaption and Resilience

In response to increasing climate risks, the CCRA emphasizes building resilience through climate adaptation. These strategies (see Art. 17 and 18 CCRA) include promoting scientific research and developing infrastructure to prepare Taiwan for extreme weather events, especially as the island is highly vulnerable to typhoons. The CCRA also introduces green financial mechanisms to support adaptation initiatives and encourage the development of climate-related industries and technologies.

The CCRA also sets up coordination mechanisms that integrate cross-sectoral and multi-level governance efforts. The Act directs the EPA to establish a National Climate Change Adaptation Plan that integrates Adaptation Action Programs from other central industry-competent authorities (see Art. 18 CCRA). Additionally, local governments are tasked with creating Climate Change Adaptation Implementation Programs to strengthen tailored adaptation strategies in coordination with the central government (see Art. 19 CCRA).

3. Just Transition

Social equity concerns over the government’s carbon reduction predate the enactment of the CCRA. A key aspect of achieving net zero is the development of renewable energy. However, Taiwan’s limited land and dense population have led to conflicts over land use, particularly between offshore wind farms and fishing communities, and between solar power installations and agricultural communities. To foster cooperation between stakeholders, the government has introduced policies like the „Agro-Photovoltaics“ and the „Fishery and Electricity Symbiosis“ projects. Nevertheless, these controversies are unresolved, sparking protests from local residents concerned about their livelihoods. In response, the government has introduced more measures, such as environmental and social impact assessment mechanisms and the „Eco-friendly Fishery Public Fund,“ to address local concerns.⁸⁵

After numerous controversies, the government elevated just transition as a central tenet of the new CCRA during the legislative process. As a result, the CCRA emphasizes the need for public participation, requiring central industry authorities to gather input from relevant agencies, scholars, experts, and NGOs to develop and revise just-transition action programs (see Art. 46 CCRA).

4. GHG Reduction

To reduce GHG emissions, the CCRA adopts both a carbon fee and cap-and-trade mechanisms, aligning Taiwan with international practices by regulating emissions through economic incentives.

a) Carbon Fee

Art. 28 of the CCRA authorizes the EPA to levy carbon fees and establish detailed regulations. Therefore, in August 2024,

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^* Chia-Wei Lin (3rd year undergraduate student, College of Law, National Taiwan University), Hao-Chen Chang-Chien (4th year graduate student, College of Law, National Taiwan University).

⁸¹ Take pollution control for example, instead of addressing pollution control comprehensively in a single act, Taiwan has various laws regulating certain types of pollution. Even in the field of air pollution, the regulatory controls are divided into multiple legislations, such as the Air Pollution Control Act, Indoor Air Quality Management Act, Noise Control Act, and Greenhouse Gas Reduction and Management Act.

⁸² However, since the abbreviation MOE generally refers to the Ministry of Education in Taiwan, this article will still refer to the new Ministry of Environment as EPA.

⁸³ The 21st Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC), Paris, Nov 30-Dec 11, 2015.

⁸⁴ Climate Change Response Act (CCRA).

⁸⁵ National Council for Sustainable Development, „12 Key Strategies“ Action Plan, pp. 37-38, accessible at: https://ncsd.ndc.gov.tw/Fore/nsdn/about0/Work12 (last accessed April 21, 2025).

the EPA introduced the „Regulations Governing the Collection of Carbon Fees“.⁸⁶ Under the Regulation, companies that emit more than 25,000 tons of CO₂ annually are required to pay carbon fees starting in 2025, based on their 2024 emissions (see Art. 4 and 5 Regulations Governing the Collection of Carbon Fees).⁸⁷ Meanwhile, companies can apply for preferential rates if they submit a self-determined reduction plan or offset up to 10 % of carbon fees by the use of domestic reduction credits (and 5 % by international credits).⁸⁸ These fees will be deposited into the „Greenhouse Gas Management Fund,“ to be used exclusively to support GHG reduction and climate adaptation projects (see Art. 34 CCRA).

b) Cap-and-trade system

Taiwan established a cap-and-trade system to regulate air pollutants in the Air Pollution Control Act of 1999. However, notwithstanding the provisions of the carbon trading system in the Greenhouse Gas Reduction and Management Act (GGRMA) the government has yet to fully implement a functioning carbon trading system under the Act. Thus, the CCRA further demands that the EPA establish a Cap-and-Trade Scheme Plan for actual implementation (see Art. 34 CCRA). As for the government’s current plans, the EPA recently announced that discussions on developing a cap-and-trade system have already begun, with potential implementation by 2028.⁸⁹ This marks a significant step forward in Taiwan’s efforts to establish a comprehensive carbon-reduction ecosystem.

II. The legislative context behind the CCRA

Legislative actions are not merely collective decisions based on rational facts but the result of a country’s unique political structure, legal tradition, and other economic, social and cultural circumstances.⁹⁰ Therefore, this section will demonstrate how the CCRA follows the development trajectory of Taiwan’s environmental legal system.

1. The development of Taiwan´s environmental legal framework

a) Early period of productive environmental legislation

From the 1980s to the early 2000s, Taiwan enacted over 20 environmental laws, including the one that created the EPA in 1988. The sudden urgency felt by the Taiwanese government can be attributed to two main factors: the democratization of domestic politics and its isolation from the international community.⁹¹

Rapid economic development in the 1970s led to severe environmental pollution in Taiwan. With political liberalization in the 1980s, successive waves of environmental movements emerged,⁹² pressuring the government to strike a balance between economic development and environmental protection. Due to its isolated status in international politics, however, the Taiwanese government has placed particular emphasis on maintaining international economic and trade connections. As a result, after being subjected to environmental trade sanctions in the 1990s and further impacted by WTO’s actions on environmental concerns, the government was forced to reform its environmental laws.⁹³ Therefore, the convergence of domestic and international pressure led to the construction of Taiwan’s environmental legal framework.

b) Greenhouse Gas Reduction and Management Act

The development of Taiwan’s climate policies followed the same pattern. This is because Taiwan’s unique political status prevents the government from officially participating in most international organizations, leaving civil society actors such as NGOs to fill the gap by engaging with global networks and attending international forums independently.⁹⁴ Therefore, as with other human rights issues in Taiwan,⁹⁵ NGOs began urging the government to regulate carbon emissions in the 1990s and the 2000s in response to the establishment of the United Nations Framework Convention on Climate Change (UNFCCC), to which Taiwan is not a party.

This can be viewed as a continuation of the environmental movements after political liberalization.⁹⁶ International factors also played an important role, but in a slightly different way: The collective nature of international climate governance, relying on consensus and collective action, made it difficult to create international pressure on Taiwan.⁹⁷ Nevertheless, the Taiwanese government passed the GGRMA right before the signing of the Paris Agreement. This was to avoid impacts on Taiwan’s trade competitiveness,⁹⁸ as Taiwan’s economy is heavily export-oriented and the government wanted to ensure that products met environmental standards

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⁸⁶ Alongside this Regulation, the „Designated Greenhouse Gas Reduction Goal for Entities Subject to Carbon Fees“ and the „Regulations for Administration of Self-Determined Reduction Plan“ are also promulgated by the EPA. These three regulations set up the carbon pricing system of Taiwan.

⁸⁷ Regulations Governing the Collection of Carbon Fees.

⁸⁸ Ministry of Environment, Press Releases, Taiwan’s Ministry of Environment announces three Carbon Fee regulations, officially ushering in the era of carbon pricing, September 23, 2024, accessible at: https://www.moenv.gov.tw/en/375192F88A851A76/553ddb95-ea29-46ae-a362-2124acdb845a (last accessed April 21, 2025).

⁸⁹ CNA English News, Taiwan to start pilot program for cap and trade system: Environment minister, September 19, 2024, accessible at: https://www.focustaiwan.tw/business/202409190033 (last accessed April 21, 2025).

⁹⁰ Jiunn-Rong Yeh, Mass Environmental Legislation: Models, Difficulties and Response in Taiwan’s Environmental Legislations, Environmental Policy and Law, 2^nd ed., 2010, pp. 73-133, 75.

⁹¹ Jiunn-Rong Yeh, Global Environmental Issue: Taiwan’s Perspective, 1999, p. 356.

⁹² See Jiunn-Rong Yeh, Institutional Capacity-Building toward Sustainable Development: Taiwan’s Environmental Protection in the Climate of Economic Development and Political Liberalization, Duke Journal of Comparative & International Law, Vol. 6, 1996, pp. 229-272, 252-256.

⁹³ Taiwan joined the WTO in 2002 under the name „Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu,“ after China’s accession in 2001. However, even before joining, Taiwan was already affected by WTO actions. See Jiunn-Rong (no. 92), pp. 257-58.

⁹⁴ See Wen-Chen Chang, An Isolated Nation with Global-minded Citizens: Bottom-up Transnational Constitutionalism in Taiwan, National Taiwan University Law Review, Vol. 4, No. 3, 2009, pp. 203-235, 228-229. Nevertheless, in recent years, the Taiwanese government has also increasingly collaborated with domestic NGOs and supported their involvement in COP conferences, and in some cases, even had government officials participate under the name of NGOs.

⁹⁵ Wen-Chen Chang (no. 94), pp. 222-228.

⁹⁶ Tze-Luen Lin, Climate Change Policy in Taiwan: A Discourse Approach, Journal of Public Administration, No. 28, 2008, pp. 153-175, 163-164.

⁹⁷ Jiunn-rong Yeh /Chun-Yuan Lin, The Paris Agreement and the Transformation of Global Climate Law: Taiwan’s Perspective, National Taiwan University Law Review, Vol. 13, No. 2, 2018, pp. 149-182, 168-169.

⁹⁸ Liang-Yu Chen/Chun-Ming Tsui, How Does an Environmental Act Enter the Policy Agenda and Become a Law? A Case Study of the Greenhouse Gas Reduction Management Act (2006-2015), Chinese Political Science Review, No. 76, 2023, pp.111-144, 125-127.

increasingly required,⁹⁹ and to declare its participation in the international community.

That said, because the core driver of the Taiwanese government’s actions was its economic concerns, it failed to fully recognize the threats posed by climate change and never carried out the reduction goals and measures outlined in the GGRMA—despite the island’s high GHG emissions and climate vulnerability. Thus, the government’s climate policy was criticized as a „gesture policy.“¹⁰⁰

2. Climate Change Response Act: A contextual extension

The CCRA reflects the same political and social context as its predecessor. Taiwan’s civil society and international trade relationship once again prompted the government to take further action. After the Paris Agreement, net-zero emissions, nationally determined contributions (NDCs), and just transition have become the focus of international climate governance. In response to persistent calls from NGOs, the EPA integrated these elements into the revision draft of the GGRMA,¹⁰¹ declaring Taiwan’s willingness to share responsibility for climate action despite being excluded from the UNFCCC regime (see Art. 1 CCRA). This mindset is evident in the frequent citations of the UNFCCC, the Paris Agreement, the Intergovernmental Panel on Climate Change (IPCC) reports, and legislative practices from other jurisdictions in the revision’s rationale.¹⁰²

Nevertheless, economic considerations remain the true driver. In July 2021, the European Union officially adopted the „Carbon Border Adjustment Mechanism“ (CBAM), which entered into force in May 2023 and requires companies importing high-emission goods into the EU to pay a carbon-related charge.¹⁰³ Meanwhile, Taiwan’s exports to the EU amounted to USD 36.8 billion, making the EU Taiwan’s third-largest export market.¹⁰⁴ The urgency of maintaining industrial competitiveness drove the government to adjust the relevant regulations. This explains why, compared to its predecessor, the CCRA not only retained the cap-and-trade mechanism but also introduced a new carbon fee system.

As for the NGOs, the worsening climate crisis and the rapid development of international climate governance have also made them realize the need for stronger action. In line with global climate litigation trends, several NGOs such as Greenpeace Taiwan filed Taiwan’s first-ever climate lawsuit in 2021, arguing that the Renewable Energy Development Act unfairly neglected corporations‘ reduction obligations.¹⁰⁵ Moreover, in January 2024, NGOs representing farmers, fishermen, indigenous people, and children directly petitioned the Constitutional Court, claiming the CCRA sets the net-zero goal without establishing specific short- and mid-term targets¹⁰⁶, thus violating the constitutional protection of human rights. Through climate litigation, citizens in Taiwan hope to pressure the government to propose more aggressive and concrete policies.

III. Conclusion

The enactment of the CCRA signifies that the Taiwanese government has finally begun to acknowledge the urgency of climate change, shifting its focus from mere GHG reduction to a more comprehensive approach. The content and timing of its development are no coincidence. They are shaped by Taiwan’s unique sense of unease, stemming from its isolation in international politics. As a result, despite being excluded from the international climate regime, Taiwan’s government still voluntarily promotes climate policies, while its citizens keep urging the government to keep pace with the international community. These two forces will not dissipate after passage of the CCRA.

D. Germany: The Accelerated Approval Procedure of Onshore Wind Energy*

Germany has made expanding renewable energy a central focus in its efforts to combat climate change. Under Section 1(2) of the Renewable Energy Sources Act (EEG), the goal is for at least 80 percent of Germany\textquotesingle s electricity to come from renewable sources by 2030. By 2024, renewable energy already accounted for 54.4 percent of total electricity consumption.¹⁰⁷ However, to meet the 80 percent target by 2030 and achieve climate neutrality by 2045 (as outlined in Section 3(2) of the Climate Protection Act), the pace of renewable energy expansion must accelerate significantly.

One of the main challenges of expanding renewable energy is the length of the process. Years pass between project conception, land-use planning, necessary approvals, and construction.¹⁰⁸ It is particularly important to speed up this process. To achieve this goal, Germany has taken and proposed various measures to address delays across different process levels.

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⁹⁹ Executive Yuan, Taiwan on track to greenhouse gas reduction, September 17, 2015, accessible at: https://english.ey.gov.tw/Page/61BF20C3E89B856/fa1a7769-a137-468b-a427-ee72a92d861b (last accessed April 21, 2025).

¹⁰⁰ Yeh/Lin (no. 97), p. 169.

¹⁰¹ Ministry of Environmental News, Change from Greenhouse Gas Reduction and Management Act to Climate Change Response Act Approved, July 19, 2022, accessible at: https://www.moenv.gov.tw/en/news/press-releases/16597.html (last accessed October 1, 2025).

¹⁰² Amended Provisions and Rationales: Climate Change Respond Act, see Parliamentary Library, https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=O0020098 (last accessed October 8, 2024).

¹⁰³ European Commission, Carbon Border Adjustment Mechanism, accessible at: https://taxation-customs.ec.europa.eu/carbon-border-adjustment-mechanism_en (last accessed April 21, 2025).

¹⁰⁴ International Trade Administration, Ministry of Economic Affairs,, Taiwan-EU Economic Relations, August 22, 2024, accessible at: https://www.trade.gov.tw/english/Pages/Detail.aspx?nodeID=4639&pid=744608 (last accessed April 21, 2025).

¹⁰⁵ Taipei High Administrative Court, 110 Su Tzu No. 134 (2021). Unfortunately, the case was dismissed by the court on procedural grounds.

¹⁰⁶ The National Development Council has announced phased targets and key strategies for the 2050 net-zero transition, setting a mid-term reduction target of 24 % by 2030. However, this target has not been incorporated into the CCRA. National Development Council, 12 key Strategies, accessible at: https://www.ndc.gov.tw/en/Content_List.aspx?n=2D918002A913582A (last accessed April 21, 2025).

^* Johanna Becker (Student, Bucerius Law School, Hamburg), Lea Katz (Student, Bucerius Law School, Hamburg).

¹⁰⁷ Bundesministerium für Wirtschaft und Klimaschutz, Zeitreihen zur Entwicklung der erneuerbaren Energien in Deutschland (Time series on the development of renewable energy in Germany), February 2025, Table 2 (p. 5), accessible at: https://www.bmwk.de/Redaktion/DE/Downloads/Energie/zeitreihen-zur-entwicklung-der-erneuerbaren-energien-in-deutschland-1990-2024.pdf?__blob=publicationFile&v=8 (last accessed April 21, 2025).

¹⁰⁸ Comp. Quentin, Jürgen, Typische Verfahrenslaufzeiten von Windenergieprojekten, Empirische Datenanalyse für den Zeitraum 2011 bis 2022 (Typical process durations of wind energy projects, empirical data analysis for the period 2011 to 2022), 2023, accessible at: https://www.fachagentur-wind-solar.de/fileadmin/Veroeffentlichungen/Wind/Analysen/FA_Wind_Analyse_typischer_Verfahrenslaufzeiten_06-2023.pdf (last accessed October 1, 2025).

Regarding the different stages, a distinction can be made between location planning and the approval of a concrete plan. While planning law deals with the preliminary question of allocating areas to specific purposes, approval law deals with the legality of individual projects.

The following article will discuss efficiency measures in relation to the planning and approval of onshore wind turbines. It will address three specific issues that have, in the past, slowed planning and approval processes and legislative changes that aim to counter these problems: (I.) the lack of allocated space for wind energy plants, (II.) a long approval process requiring a complex environmental impact assessment and (III.) difficult balancing decisions by the authorities.

I. Land use planning and the lack of space

The first step in the process of building a wind turbine is to find a suitable site. Due to the decentralized nature of wind turbines compared to nuclear or coal power plants, a large amount of land is needed for the expansion of onshore wind energy.¹⁰⁹ As Germany is a densely populated country, conflicts over land use frequently arise,¹¹⁰ resulting in a shortage of land for onshore wind turbines. For instance, in 2022, only 0.8 percent of Germany’s land area was designated for wind turbines, and only 0.5 percent of that land was actually usable.¹¹¹ Complicated legal requirements for the exclusive allocation of land for wind energy and public resistance (e.g., „not in my backyard“ sentiments) have led to particularly lengthy planning procedures.¹¹² State regulations exacerbate this problem. For example, Bavaria requires that turbines be built at a minimum distance of ten times the turbine height from residential areas (10h rule, see Section 82 (1) Bavarian Building Code (BayBO)). To address these issues, various legislative changes were passed.

1. The Wind Energy Land Requirement Act (WindBG)

The WindBG came into force in February 2023 with the goal of designating a certain amount of land specifically for the expansion of onshore wind energy. This legislation stipulates the minimum percentage of land that must be allocated for onshore wind turbines by each federal state, thereby functioning within the existing planning law framework. While the states may choose to allocate land at the state level or through local-level planning, according to Section 3 (1) in conjunction with Annex 1 of the WindBG, approximately two percent must be made available for onshore wind energy by 2032.

2. Changes within the Federal Building Code¹¹³

In addition to the WindBG, the legislature also amended the Federal Building Code (BauGB) and the Regional Planning Act (ROG).¹¹⁴ Especially noteworthy is Section 249 of the BauGB, which determines whether wind energy projects receive preferential treatment in planning processes, depending on whether the federal states have met the land area targets for wind energy development. Section 249 (2) of the BauGB states that once a federal state has met its required land contribution targets for wind energy, wind turbines located outside the designated areas will no longer receive preferential treatment in planning decisions. This means they may be overridden in favor of other public interests. The goal is to encourage the federal states to provide land for wind energy development as quickly as possible.¹¹⁵ On the other hand, Section 249 (7) of the BauGB introduces consequences if states fail to meet the land targets by 2027 and 2032. Wind projects are then granted privileged status across the entire state making them generally approvable.¹¹⁶ Section 249 (9) BauGB also stipulates that state regulations, such as the 10h rule in Bavaria, remain in force but are not applicable to installations within wind energy areas.¹¹⁷

The new WindBG, together with Section 249 of the BauGB, creates a binding obligation to provide more space for onshore wind energy. This is expected to counteract both state distance regulations and the so-called „not-in-my-backyard“ (NIMBY) sentiment, promising to speed up the identification of suitable areas.¹¹⁸ However, that the States must comply with the area allocation rule only by the end of 2027 is problematic (comp Section 3 (1) WindBG).¹¹⁹ Therefore, it remains to be seen how much the planning process for wind farms will be accelerated in practice.

II. Expediting the approval process due to the elimination of the Environmental Impact Assessment (EIA) requirement

Another issue is the duration of the approval procedure for individual installations. Approval takes place after an area has been designated for wind energy. State agencies conduct the approval process for wind turbines according to the Federal Immission Control Act (BImSchG).¹²⁰ Here, too, the new

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¹⁰⁹ Köck, Wolfgang, Beschleunigung durch Rechtsvereinfachungn (Acceleration through legal simplification), ZUR 2023, pp. 470-476, 471.

¹¹⁰ Köck (no. 109), p. 471; Benner, Lukas/Krischer, Oliver, Erneuerbare? Ja, bitte! — Grüne Politik für eine erfolgreiche Energiewende (Renewables? Yes, please! — Green Policies for a Successful Energy Transition), EnWZ 2022, pp. 193-194, 193.

¹¹¹ German parliamentary document (BT-Drs.) 20/2355, p. 17.

¹¹² Köck (no. 109) p. 472.

¹¹³ In Germany, the Federal Building Code (BauGB) includes regulations on both planning and approval procedures.

¹¹⁴ Eckhardt, Golo, Die Novelle des Raumordnungsgesetzes (The amendment to the Spatial Planning Act), NVwZ 2023, pp. 1777-1783, 1777; Renno, Christian, Der Rechtsrahmen für den Ausbau der Windenergie an Land unter Betrachtung und Bewertung aktueller Gesetzesnovellen (The legal framework for the expansion of onshore wind energy under consideration and evaluation of current legislative amendments), EnWZ 2023, pp. 203-208, 204.

¹¹⁵ Comp. Renno (no. 114), p. 204.

¹¹⁶ Renno (no. 114), p. 204; Schlacke, Sabine/Wentzien, Helen/Römling, Dominik, Beschleunigung der Energiewende: Ein gesetzgeberischer Paradigmenwechsel durch das Osterpaket? (Accelerating the Energy Transition: A Legislative Paradigm Shift through the Easter Package?), NVwZ 2022, pp. 1577-1586, 1582, 1583.

¹¹⁷ Section 249 refers to the wind energy areas designated in the WindBG. As federal law, Section 249 takes precedence over deviating regulations of the federal states, comp. Söfker/Meurers in Ernst/Zinkahn/Bielenberg/Krautzberger BauGB § 249, para. 1, 1a, 165 et seqq.

¹¹⁸ Comp. Renno (no. 114), p. 207.

¹¹⁹ Comp. Fehling, Michael, in Rodi, Michael/Saurer, Johannes (ed.), Comparative Perspectives on the Law of Energy Transition in Europe (to be published), pp. 240-262, 250; Kment, Martin, Beschleunigung des Ausbaus von Windenergieanlagen an Land, Deutschland in der Poly-Krise (Accelerating the Expansion of Onshore Wind Energy in Germany Amid a Polycrisis), NVwZ 2023, pp. 959-965, 965.

¹²⁰ Wind turbines with a height exceeding 50 meters always require approval according to Annex 1 of the 4th Federal Immission Control Ordinance (4. BImSchV) in accordance with the Federal Immission Control Act (BImSchG).

WindBG includes legislative changes to expedite approval processes. In general, the approval of an onshore wind turbine often requires an Environmental Impact Assessment (EIA), which evaluates potential effects of the proposed project on the environment. Especially due to the need for extensive expert reports—for example on noise, shadow, or the protection of endangered species—this can be lengthy and complex, leading to delays in the approval process. Section 6 WindBG, waives this environmental impact assessment if the wind turbines are located in a designated wind energy area where a so-called strategic environmental assessment, i.e., a prior assessment of the environmental impact of construction projects in the area, has already been conducted in the planning phase. Strategic environmental assessment bundles investigation efforts because it covers not only one project but all possible wind energy projects in the area it covers.

Although there are no formal studies evaluating how the elimination of the environmental impact assessment affects the length of the approval process, statistical investigations suggest that the duration of an approval process significantly depends on correct submission of documents by the applicant.¹²¹ If lawmakers remove the EIA obligation, it is reasonable to expect some acceleration.

III. Elimination of complex balancing decisions

Laws that require authorities to make difficult and unclear value judgements also slow decisions. In this context, greater legal certainty regarding the decisions made by authorities is important, as legal disputes can also be time-consuming.¹²² To this end, further legislative changes aim to reduce balancing decisions or, at least, to make them more predictable.

Within German environmental law, the BImSchG has specific importance due to its concentration effect: A license based on the BImSchG includes licenses required by most other statutes (comp. Section 13 BimSchG).¹²³ Under Section 6 (1) No. 2, a BImSchG licensing decision includes external legal requirements such as under the Federal Nature Conservation Act (BNatSchG).¹²⁴ This is a manifestation of the concentration effect. The applicant has the right to approval if all requirements are met, so there is no administrative discretion.¹²⁵

1. Changes within the Federal Nature Conservation Act (BNatSchG)

Lawmakers also amended the BNatSchG to accelerate approval procedures, primarily by standardizing species protection rules. In the past, restrictions against harming or killing protected species, particularly birds, in many cases resulted in rendering areas ineligible for wind area development.¹²⁶ In general, the agency will not grant a license if the risk of injuring and killing species will be significantly higher due to the wind turbines, see Section 44 (5) BNatSchG.¹²⁷

By introducing distance typologies, lawmakers intended to facilitate approval at a substantive legal level. The new Section 45b of the BNatSchG standardizes the risk of killing or harming these species, depending on the distance from the wind turbine to the nesting sites. These harmonizations are more clearly grounded in the law, reducing reliance on complex case-specific determinations.¹²⁸ Previously, due to Germany’s federal system, each federal state applied its own regulations regarding the required distances from nesting sites.¹²⁹ The new Section 45b BNatSchG establishes uniform standards for all of Germany.¹³⁰

Section 45b (2-5) BNatSchG determines three different areas based on the distance of the wind turbine to the breeding areas of bird species. These areas can be visualized as three concentric circles, each with a different radius, with the wind turbine at their center.¹³¹ The distance regulations differ depending on the endangered birds in question (see Annex 1 BNatSchG).

The red kite is a useful example as it is very important in practice. Within the so-called close-range area, set at 500 meters, the risk of killing or injuring red kites is always considered to be high, Section 45b (2) BNatSchG.

The so-called central-testing area (see Section 45b (3) BNatSchG) establishes a rule-and-exception relationship. Within this area (1200 meters for red kite), there is a statutory presumption that the risk is significant. However, the presumption can be overturned if the applicant proposes protection measures to reduce the risk.¹³² In addition, overturning the presumption is possible through a habitat analysis.

The third area is the extended-testing area (Section 45b (4) BNatSchG). Within this area (3500 meters for the red kite), the relationship of rule and exception is reversed. Thus, there is a statutory presumption that the risk is insignificant. Again, overturning the presumption is possible. Outside these areas, the risk is not considered „significantly higher“ (see Section 45b (5)). This determination cannot be overturned.¹³³

The new regulatory strategy illustrates the country’s policy objective: the need for wind energy usually prevails.¹³⁴ Species protection will prevail only in atypical cases. The legal definition of the term „significant“ will likely lead to more places being deemed suitable for wind energy.

The rules of the BNatSchG are made manageable through this standardization.¹³⁵ As a result, approval decisions by the

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¹²¹ Steinberg, Rudolf et al., Zur Beschleunigung des Genehmigungsverfahrens für Industrieanlagen. Eine empirische und rechtspolitische Untersuchung (On the Acceleration of the Approval Process for Industrial Plants: An Empirical and Legal-Policy Study), Verwaltung 2000, 1991, p. 16.

¹²² Comp. Kment (no. 119), p. 960..

¹²³ Seibert in Landmann/Rohmer, BImSchG § 13, para. 30 et seqq.

¹²⁴ Jarass in Jarass, BImSchG § 6, 14th edition 2022, para. 23 et seqq.

¹²⁵ Rebentisch in Theobald / Kühling, Energierecht (Energy Law), § 6 BImSchG, para. 18 et seqq.

¹²⁶ See Kompetenzzentrum Naturschutz und Energiewende (KNE), Die Vorschriften zur Windenergie an Land im Bundesnaturschutzgesetz 2022 (The regulations on onshore wind energy in the Federal Nature Conservation Act 2022), p. 5.

¹²⁷ See Gellermann in Landmann / Rohmer, Umweltrecht (Environmental Law), § 44 BNatSchG, para. 51.

¹²⁸ Comp. BT-Drs. 20/2354, p. 2, 17; comp. Jaenicke, Mathias, Aktuelle Rechtsfragen der bauplanungsrechtlichen Zulässigkeit von Windenergieanlagen an Land (Current Legal Issues Regarding the Planning Law Legality of Onshore Wind Energy Plants), ZUR 2023, pp. 291 — 299, 293.

¹²⁹ KNE (n. 20), p. 5.

¹³⁰ Attendorn, Thorsten, Umweltrechtliche Ausnahmeabwägungen über die Zulassung von Wasser- und Windkraftanlagen nach dem „Osterpaket“ (Environmental Legal Considerations on the Approval of Hydropower and Wind Energy Plants under the \textquotesingle Easter Package\textquotesingle), NVwZ 2022, pp.1586-1593, 1590.

¹³¹ See BT-Drs. 20/2354, p. 24 et seqq; KNE (no. 126), p. 11.

¹³² Examples for these protection measures can be found in Annex 2 of the BNatSchG.

¹³³ Gläß in BeckOK Umweltrecht, § 45b BNatSchG, 69. Edition, para. 1 et seqq; see also KNE (no. 126), p. 10 et seqq.

¹³⁴ Attendorn (no. 130),p. 1590.

¹³⁵ Comp. Kappes, Christiane, Stellschrauben der Planungsbeschleunigung: Standardisierung und gerichtliche Kontrolldichte (Levers of Planning Acceleration: Standardization and Judicial Review Intensity), UPR 2023, pp. 89-95.

authorities are expected to be issued more quickly and less frequently be subject to legal challenge. However, this comes at the cost of species protection.

2. The new Section 2 of the Renewable Energies Act (EEG)

By strengthening climate protection within the balancing process, lawmakers also make it easier for wind developers to obtain approval. According to Section 2 of the Renewable Energy Sources Act (EEG), the expansion of renewable energy generation facilities is understood to be generally in the overriding public interest and in the service of public safety. This means that authorities give renewable energy facilities like wind turbines particularly high weight in balancing decisions. Other legally protected interests, such as historic conservation or the protection of endangered species, should take precedence over the construction of renewable energy facilities only in atypical and justifiable cases. Consequently, the interests of wind power prevail as a rule in interest balancing. And the decision is more clearly predetermined and thus can be made more quickly.

IV. Conclusion

These legislative changes demonstrate the strong political will to accelerate the expansion of renewable energies in Germany. These measures will hopefully expedite the approval process. Additionally, recent court rulings increasingly reflect the impact of prioritizing renewable energy under Section 2 of the EEG.

However, at the moment it is impossible to tell what these measures, however promising on paper, will achieve in practice. One concern is that the area contribution values will not be reviewed until 2027. Consequently, a clear assessment cannot yet be made, but the numerous recent legislative changes offer a generally positive outlook.

E. Final Conclusion

Climate change is a worldwide problem. It affects all areas of life and requires a correspondingly determined approach at all levels. Although the approaches differ, we all share the same goal. The colloquium made us realize that the different approaches to combating climate change are as diverse as our different countries.

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