Suzanne Kingston, ‘The Polluter Pays Principle in EU Climate Law: An Effective Tool Before the Courts?’

ABSTRACT
The polluter pays principle (PPP) is often thought of as an aspirational or guiding principle rather than one that is justiciable by courts. While the principle features in many international conventions in varying formulations, it has not been recognized as a principle of customary international law. The legal status of the PPP in EU law is different. The PPP enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (TFEU) enshrines the principle among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the PPP in EU law, in the case-law of the Court of Justice of the European Union (CJEU) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the PPP has been most influential to date: first, cases concerning the EU ETS and emissions; second, cases concerning EU energy law; and third, cases concerning EU state aid law. Some reflections are offered in conclusion about the potential role of the PPP in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.

Kingston, Suzanne, The Polluter Pays Principle in EU Climate Law: An Effective Tool Before the Courts? (August 24, 2020). Climate Law 10 (1) 1-27, DOI: 10.1163/18786561-01001001, UCD Working Papers in Law, Criminology and Socio-Legal Studies Research Paper.

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