15 August 2023

Is EU democracy fit for climate change? The case of the “green taxonomy”

By Bohyun Kim
Nuclear plant with sunflowers
The EU has decided to classify nuclear power as green. While the process has been transparent, its openness to civil society seems insufficient.

The EU is actively greening itself. Under the current international climate regime, the 195 signatories to the Paris Agreement are legally bound to take urgent climate action to reduce global greenhouse gas (GHG) emissions and stay below 1.5°C of global warming. As the only regional organization with UNFCCC Party status, the EU is one of the fastest moving democracies on the journey towards a low-carbon economy.

The EU’s climate action

It has committed to becoming the first climate-neutral continent by 2050 with the introduction of the European Green Deal (2019), followed by the European Climate Law (2021) with the new EU target of reducing net GHG emissions by at least 55% by 2030 compared to 1990 levels. In order to achieve the Union’s climate target, the European Commission proposed a ‘Fit for 55 Package’ in July 2021 to review all relevant policy instruments in the areas of climate, energy, transport and taxation, including a reform of the EU Emissions Trading System (EU ETS). In May 2022, the REPowerEU plan was added, an initiative to swiftly reduce dependence on Russian fossil fuels and accelerate the green transition.

The implementation of the European Green Deal is also taking place in the EU’s external climate policy. The EU’s Carbon Border Adjustment Mechanism (CBAM) will enter its transitional phase on 1 October 2023. It will initially apply to imports of certain goods and selected precursors whose production is carbon-intensive and where the risk of carbon leakage is highest. When it comes to climate policy, the EU already seems to be ‘green.’

EU taxonomy: for greening or greenwashing?

Still, not all is harmonious in the field of EU climate policymaking. Amid its rapid progress, the old debate on whether nuclear energy is green has been recently reignited during the implementation of the EU taxonomy.

The EU taxonomy for sustainable activities (or “green taxonomy”) is a classification system established to clarify which investments are environmentally sustainable, in line with the objectives of the European Green Deal. The taxonomy, which came into force in July 2020, is designed to help investors make greener choices. Since then, the European Union has adopted four delegated acts to supplement the taxonomy legislation: two climate delegated acts (2021 and 2022), one disclosure delegated act (2021) and, most recently, one delegated act for environmental and climate (2023).

Among these, the second climate delegated act was the most controversial as it included nuclear energy and natural gas in the EU taxonomy rulebook from 2023 on. As the European Parliament did not object to the inclusion of gas and nuclear activities on July 6, 2022, the delegated act applies since January 2023, officially allowing gas and nuclear power plants to be labelled as green.

Acrimonious debate on nuclear energy

The rules are dividing EU member states and investors. In October last year, the Austrian government filed a lawsuit against the Commission over the green labelling of nuclear energy and natural gas. It has been opposed to the EU’s taxonomy plan since the beginning of the controversy, as it is one of the EU countries most sceptical of nuclear energy, along with Germany, Denmark and Portugal. On the other hand, there is the Nuclear Alliance group, which is in favour of nuclear energy and includes France, Belgium, Bulgaria, Croatia, the Czech Republic, Estonia, Finland, Italy, Hungary, the Netherlands, Poland, Romania, Slovakia, Slovenia, and Sweden.

Regarding public opinion on the EU taxonomy issue, environmental groups such as Greenpeace and other NGOs sued the Commission earlier this year for the taxonomy action, arguing that it violated the very idea of the taxonomy regulation by including environmentally harmful activities. The debate between supporters and opponents of nuclear energy has become even more acrimonious due to its connection to the question of the place of nuclear energy in the EU’s energy transition and the energy crisis driven by Russia’s aggression in Ukraine, linking energy and security concerns with climate change issues.

Given the different groups and political interests at multiple levels around this highly contentious nuclear energy issue, how did the EU find its way to pass the legislation?

Throughput legitimacy of EU policymaking

Neither an international organization nor a nation-state, the EU’s multi-level institutional structure gives it a number of different pillars on which to base its legitimacy. It has ‘indirect legitimacy’ from its member states through their representation in the Council and ‘direct legitimacy’ from the elected European Parliament. It also has ‘technocratic and procedural legitimacy’, through which the Union’s institutions are best legitimized either when they solve regulatory problems or when they adhere to procedures such as transparency and stakeholder consultation (Neuhold 2021).

Vivien Schmidt (2021) calls this technocratic and procedural legitimacy the ‘throughput legitimacy’ of the EU governance system. Recognizing the diversified channels of legitimacy for EU democratic governance, she reintroduces three concepts of legitimacy proposed by Scharpf (1999): 1) output legitimacy, 2) input legitimacy, and 3) throughput legitimacy. Output legitimacy refers to the legitimacy of governance in terms of policy effectiveness and performance for the common good, while input legitimacy is related to citizen participation and representation and the responsiveness of political elites to citizen concerns. Throughput legitimacy refers to the quality of governance processes. This includes the efficacy of policy making, the accountability of decision-makers to relevant forums, the transparency of their actions and access to information, and their openness and inclusiveness towards civil society.

As low-quality throughput procedures – such as governance processes that appear incompetent, biased, corrupt or oppressive – can have a negative impact on both policy output and policy input (Schmidt 2021), maintaining a high level of throughput legitimacy is crucial for the EU to function as a democratic governance system.

The Commission’s rhetoric power in climate emergency

In addition, studies have shown the European Commission’s increasing authority over the EU’s internal and external climate policy (Rayner and Jordan 2016). The European Commission’s role as a ‘policy entrepreneur’ in the EU system allows it to take advantage of framing and driving policy change by advocating new ideas or proposals, (re)framing problems, building coalitions among policymakers and stakeholders, mobilizing public opinion and setting the agenda (Dupont et al. 2020).

Even in emergency situations, the Commission, as the Union’s executive body, can make up for what it lacks in traditional coercive state powers with its rhetorical power to legitimize its actions and normalize them afterwards (Schmidt 2021). This rhetorical power links legitimacy to all actors and influences peoples’ perceptions of legitimacy through ideas and discourses (Carstensen and Schmidt 2018).

Although the Commission is now facing legal challenges in the European Court of Justice, the EU’s green taxonomy legislation is a successful example of the ‘securitization’ of climate change through speech acts, which has allowed nuclear energy and gas to be legitimized as green (Oels 2012). By framing climate change as an “existential threat” with the European Green Deal, the European Commission, acting as a securitizing actor, was able to produce political legitimacy for its climate delegated acts, which otherwise might have been seen as illegitimate (Olesker 2018).

How to legitimize nuclear energy as green

So how did the Commission procedurally legitimize the inclusion of nuclear energy and gas in the green taxonomy with its climate delegated acts? The Commission went through the usual delegated act procedure, which ensures its throughput legitimacy: Before adopting delegated acts, the Commission consults with expert groups composed of representatives from each EU country. Once the Commission has adopted the act, Parliament and Council have two months to raise any objections. If they do not, the delegated act enters into force.

The second climate delegated act was submitted together with two reports – one from the Technical Expert Group on Sustainable Finance (2019) and the other from the Joint Research Centre, the European Commission’s science and knowledge service (JRC 2021) –, as well as consultations with the Platform on Sustainable Finance (PSF) and the Member States Expert Group (MSEG). These technical assessment bodies had been established on the basis of the original taxonomy regulation of June 2020 and had been tasked with updating and specifying the notions of ‘substantial contribution’ and ‘significant harm’ based on scientific evidence and input from experts as well as relevant stakeholders.

In a Communication of April 2021, the Commission informed Council and Parliament on its intention to adopt a complementary delegated act to the taxonomy regulation to cover certain energy sectors and manufacturing activities, such as nuclear energy, national gas and related technologies, as a ‘transitional activity’. The process was based on a JRC report, which at that time was still under review by the Euratom Article 31 expert group and the Scientific Committee on Health, Environmental and Emerging Risks (SCHEER).

Nuclear energy as a ‘transitional activity’

The Commission’s rhetorical legitimization of the inclusion of nuclear and gas in the taxonomy is well illustrated in the two climate delegated acts. In the first climate delegated act, adopted in June 2021, the Commission clearly stated the importance of ‘climate-neutral energy’ as a transitional economic activity, as referred to in Art. 10 (2) of the Taxonomy Regulation 2020/852. It also wrote that the relevant assessment for nuclear energy was still ongoing and that it would take a follow-up action based on the results of the assessment once the process was completed.

In the second climate delegated act, adopted on March 9, 2022, the Commission concluded that nuclear energy-related activities are low-carbon activities and part of the future energy sources and decarbonization efforts of a number of member states to achieve the 2050 decarbonization objective. Accordingly, nuclear energy was qualified to be covered by the EU taxonomy.

This conclusion was supported by the JRC report finding that nuclear energy met the ‘do no significant harm’ (DNSH) criteria: ‘The analyses did not reveal any science-based evidence that nuclear energy does more harm to human health or to the environment than other electricity production technologies already included in the Taxonomy as activities supporting climate change mitigation’ (JRC 2021).

Democratic shortcomings

So, is nuclear energy now green according to the EU’s DNSH criteria? This is indeed not an easy question to answer. However, the European Union has officially concluded that it should be classified as green for now. This case of EU green taxonomy legislation not only leads us to consider the societal implications of scientific and technocratic decision-making, but also offers some lessons in terms of EU democratic governance.

Can the taxonomy governance process and the Commission’s influence be described as democratic enough? The process has been transparent and accountable, but the aspect of openness towards civil society seems insufficient. The rhetorical power of the Commission has been based almost exclusively on technocratic and scientific results.

While this sufficed to convince decision-makers in the Council and Parliament, who did not object to the second climate delegated act, the Commission was unable to placate the societal controversies around the role of nuclear energy. According to a survey commissioned by WWF and conducted by Savanta ComRes in eight large EU countries, only 29% of the citizens supported the inclusion of nuclear energy in the green taxonomy, while 55% rejected it. Another survey by Innofact showed similar results for Germany.

EU democracy for climate action?

In her book ‘The Green State’ (2004), Robyn Eckersley once presented the European Union’s ‘Kantian’ or ‘post-Westphalian’ culture as the closest real approximation to a green state. She argued that states are the only political institutions that still possess strong power and capacity to direct societies and economies. In order to transform liberal-democratic states into ‘green-democratic states’, grassroots environmental movements must confront the state and reshape the state institutions in a greener way (Fischer 2017).

It may be too idealistic to question whether this high level of social inclusion is even possible at the EU level. Nevertheless, a more direct and deliberative process with diverse actors and civil society in the governance system would be the next step for the EU to take further climate action while enhancing and realizing its democratic ambitions.

This contribution is part of the thematic forum “Supranational governance between diplomacy and democracy – current debates on EU reform”, published in cooperation with the online magazine Regierungsforschung.de.

Pictures: Nuclear plant and sunflowers: Jess & Peter [CC BY 2.0], via Wikimedia Commons; portrait Bohyun Kim: private [all rights reserved]; EU flag: Arno Mikkor (EU2017EE) [CC BY 2.0], via Flickr.

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