Climate Change Law: Objectives, Instruments and Structures of a New Area of Law *

Over the past two decades, Germany has created a sophisticated climate change legislation framework which in many instances implements international and particularly European Union (EU) requirements. This article points out that in some areas Germany has played a pioneering role in shap-ing the development of EU law. As an environmental problem of truly global scale, climate change mitigation is heavily reliant on the achievement of international consensus. But it also requires effective, level-specific solu-tions to problems at all rungs of the multilevel policy hierarchy comprising the international community, the EU and the Federal Republic of Germany with its sixteen states and numerous cities and municipalities. Much progress has therefore already been made, but efforts must be greatly intensified right across the board.

the time ambitious reduction targets of its own: the German government aimed to cut greenhouse gas emissions from German sources by 25% by 2005 based on 1990 levels. 2 Subsequent to the Kyoto Protocol, 3 Germany agreed under the EU burden-sharing scheme to reduce its greenhouse gas emissions by 21% during the period 2008 to 2012 compared with 1990 levels. 4 This target will be met. 5 A milestone in Germany's more recent climate policy came in the form of the Meseberg Resolutions on Integrated Energy and Climate Policy adopted by the German government on 23-24 August 2007. 6 This climate change programme affects almost all significant emitter groups (industry, transport, buildings and consumers) and comprises 29 measures with quantified CO 2 reduction targets for the period up to 2020. On this basis, Germany aims to cut greenhouse gas emissions by 40% by 2020 based on 1990 levels.
The core components of the Meseberg Energy and Climate Programme involve improving energy efficiency by, among other things, promoting combined heat and power, and a range of measures relating to electricity consumption in buildings. Also, use of renewable energy is to be considerably intensified in the electricity and heating sector. For the transport sector, use of biofuels and the integration of shipping and air transport into the 2 Emissions in CO 2 -equivalents 1990: 1,036 million tonnes; of which 15.7% from the transport sector, 40.1% from the energy industry, 20.9% from private households and private consumers, 14.9% from the manufacturing sector, and 8.1% from industry; see also the table in UBA, Nationale Trendtabellen für die deutsche Berichterstattung atmosphärischer Emissionen seit 1990, Emissionsentwicklung 1990(information as of 12.11.2008 BMWi & BMU (2007); and also Bosecke (2008:122); SRU (2008a:para. 104ff.); UBA (2009:4ff.).

Hans-Joachim Koch
Emissions Trading Scheme will lead to significant reductions in CO 2 emissions. The Meseberg Programme is less clear as regards ways to reduce greenhouse gas emissions in agriculture -each of the approaches it contains requires considerable further enhancement of prevailing (climate change) law. 7 This will be addressed in more detail later (in Section C). The Meseberg Energy and Climate Programme serves as Germany's contribution to achieving the ambitious targets agreed on by the EU heads of state and government under the German EU presidency on 9 March 2007. Accordingly, by 2020, greenhouse gas emissions in the EU are to be reduced to 30% below 1990 levels, subject to other industrialised countries agreeing to comparable targets and emerging economies reducing their emissions commensurate with their abilities and resources. Aside from this package of measures, the EU has agreed to reduce its emissions by 20% by 2020 in any event, even though under the Kyoto Protocol the EU is only required to cut emissions by 8% by 2012. 8 In advance of the Climate Change Conference in Copenhagen in December 2009, which in many respects failed, the European Union and Germany adopted very clear positions, and not just in respect of the 2°C target 9 long called for by the scientific community. 10 The EU repeatedly and vigorously called for global warming to be restricted to 2°C compared with pre-industrial levels. At the same time, the EU proposed specific reduction targets and associated measures linked to financing models. The German government spoke out strongly in favour of complying with the 2°C target. 11 Unfortunately, in the Copenhagen Accord, the Copenhagen Conference achieved little more than half-hearted political recognition of the 2°C target. International climate change policy is consequently at risk of collapse.
Climate Policy Post-Copenhagen 12 is more challenging than ever. The EU continues in its efforts to present a credible example and has analysed ways of moving forward on the road to a reduction target of 80-95% by 2050 and of reaching a binding commitment on the 30% target. 13 The German government endorsed these aims in its Energy Concept of 28 September 2010. 14 Negotiations in advance of the Conference of the Parties (COP16), held at Cancún in December 2010, went in two directions, one concerning a continuation of the Kyoto Protocol and the other a new global climate change accord. 15 As we now know, the conference in any case brought legal recognition of the 2°C target. The Conference of the Parties (COP17) in Durban in December 2011 achieved an agreement to negotiate an accord for climate protection which binds all member states and defined a second stage of Kyoto beginning in 2013. The UN Climate Summit in Doha in December 2012 finally developed a binding agreement with the following main items: • An obligatory second obligation period based on the Kyoto Protocol from 2013-2020, and • A working plan for the negotiation of a new global convention for climate protection to come into force in 2020.

Climate Change Law: A New Area of Law
Climate change policy has in the meantime produced a steadily growing body of legislation. From a legal systematics standpoint, the subject of climate change policy in the law is followed with growing interest and increasing intensity 16 and is now often recognised as a legislative field (climate change law) in its own right. 17 In agreement with Gärditz, it appears reasonable to define climate change law as "the sum of legal standards designed to protect the climate against anthropogenic effects". 18 It must also be remembered in this regard that climate change law is a cross-sectoral area,

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13 COM 2010 (265) final: Analysis of options to move beyond 20% greenhouse gas emission reductions and assessing the risk of carbon leakage. 14 BMWi & BMU (2010:4). 15 For an academic perspective on the two options see Hansjürgens (2009). 16 Koch & Caspar (1997); Koch & Behrend (1996); Koch & Verheyen (1999); Bail et al. (2003: § 54); Köck (2007); Weinreich (2006); Müller (2008); Czybulka (2008). 17 Winkler (2005); Gärditz (2008); Kloepfer (2008:10); Müller & Schulze-Fielitz (2009:15); for a still cautious view, Schlacke (2010:121), with a useful overview of the diversity of regulatory regimes. 18 Gärditz (2008); concurring Müller & Schulze-Fielitz (2009:12). which has been integrated along with its objectives and instruments into a myriad of regulatory resources, and must continue to be so integrated in the future. 19 Also, climate change law is typical of multilevel legislation with rules that apply at international, EU and national level. It is virtually paradigmatic for the increasing globalisation of environmental law. 20 International, European and national climate change law has acquired clear structures in its just under 20 years of development. Structure-giving regulatory strategies in climate change law can be grouped -broadly -into strategies for the reduction of greenhouse gas emissions (climate change law in the strict sense) and climate change adaptation strategies (climate change adaptation law). Regarding greenhouse gas reduction strategies, the action areas to be distinguished comprise substitution of fossil fuels with renewable energy sources, improving energy efficiency, and the (as yet under-developed) measures relating to arable and livestock farming.
With regard to energy efficiency, sector-specific command-and-control regimes have been created for buildings, energy-using or energy-related appliances and equipment, and motor vehicles. Greenhouse gas emission trading has been or is being established for industry and aviation and may be established in future for shipping; promotion of combined heat and power (CHP) is a further instrument targeting energy efficiency. Alongside these sector-specific arrangements is the cross-sectoral approach taken in the Energy Services Directive, which has now been transposed into German law. This targets absolute energy savings by way of improvements in energy efficiency.
Concerning the substitution of fossil fuels with renewable energy, notable legislation includes the Renewable Energy Sources Act (EEG) -descended at some distance from the former Electricity Feed-in Act (Stromeinspeisungsgesetz) -and the recently overhauled EU Renewable Energy Directive. The instrumental core of the former Electricity Feed-in Act has been retained in Germany, in compliance with European law: grid operators must purchase renewables-generated electricity on a priority basis and must pay for it a price set by the state.
With regard to fossil fuel substitution, a binding biofuel quota has been adopted that must be met by all business enterprises placing motor fuels on the market. With a view to land-use conflicts and the need to safeguard nature conservation interests under increased biomass crop farming, the EU has laid down sustainability requirements for the growth of biomass crops in the Renewable Energy Directive. These requirements are transposed into German law in more specific form in the Biofuels Sustainability Ordinance (Biokraftstoff-Nachhaltigkeitsverordnung/Biokraft-NachV).
Detailed analysis of the regulatory regime in all its diversity leads, quite naturally, to difficult legal issues, as well as an on-going need for harmonisation and also individual points needing correction. At the same time, it may be concluded that in just under two decades a body of climate change law has been created that is diverse, complex and, in its core structures, essentially suited to the task. By the very act of undertaking a synoptic review of this new area of law, the academic law discipline is able to provide the kind of critical and constructive support that is ever necessary for the ongoing legislative process. It is nonetheless important to distinguish between the level of sophistication achieved by the body of law itself and the standard needed to attain climate policy targets. In this light, the conclusion to be drawn is that efforts must be stepped up considerably in all areas if the 2°C target is not to become unattainable in the near future.
The analysis in the following section is restricted to the main decarbonisation strategies, i.e. to the legal frameworks for the promotion of energy efficiency and for the promotion of renewable energy. 21

Legal Framework for the Promotion of Energy Efficiency
A dramatic increase in energy efficiency is a vital prerequisite for successful climate change mitigation. 22 The general consensus is that there are huge efficiency reserves. The European Union and Germany have therefore

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21 A comprehensive treatment including constitutional issues, legal issues concerning the reduction of greenhouse gas emissions in agriculture and legal approaches for climate change adaptation is published in GfU (2011). 22 For an in-depth view see SRU (2008a:para. 109ff.). launched an energy efficiency initiative in all key sectors. 23 Notable sectors involved in the implementation of successful energy efficiency policy include: • Boosting competition in energy efficiency in the course of energy market liberalisation 24 • Promoting energy efficiency in residential buildings 25 • Efficiency requirements for energy-using appliances and equipment 26 • Creating the conditions to increase energy efficiency in motor vehicles, 27 and • Promoting energy efficiency in industrial facilities.
Both the European Union 28 and Germany 29 have introduced a range of statutory regulatory regimes in the key sectors mentioned above. While these are largely promising, they must still be enhanced and developed further. The following sets out the most important elements of the regulatory regime.

Promotion of Energy Efficiency Using Combined Heat and Power (CHP)
With the major revisions of the Combined Heat and Power Act (KWPG) in 2008 and 2009 under the framework of the German government's Integrated Energy and Climate Programme, 30 the percentage share of high-efficiency CHP plants in electricity and heat generation (primary energy use over 90%) is to be increased from 12 to 25% (Section 1 KWPG). 31 District heat networks will also be expanded. According to the statutory definition in the first I. sentence of Section 3 (1) KWKG, combined heat and power is "the simultaneous conversion of primary energy into electrical energy and useful heat in a stationary technical installation". In this way it is possible to attain a primary energy conversion efficiency of over 90%, compared with 35 to 50% in electricity generation without CHP and up to 58% in a combined cycle gas and steam power plant. 32 CHP also enables substantial reductions of CO 2 and other emissions. 33 The more recent overhaul of the Combined Heat and Power Act significantly improved the set of policy instruments used to promote CHP. The central instrument is a statutory obligation on grid operators to connect CHP units to the grid and to purchase and pay for the generated energy (Sections 4 to 8 KWKG). 34 Under Section 4 (1) KWKG, grid operators are required "to connect CHP installations within the meaning of Section 5 to their grid and to purchase the CHP-generated electricity from such installations on a priority basis. The purchase obligation is of equal rank to that for electricity from renewable energy sources" (second sentence of Section 4 (1) KWKG). 35 Remuneration is provided on a finely graded scale (see Sections 5 to 7 KWKG). Remuneration normally consists of a price -a negotiated price or the prevailing price -plus a surcharge as a special incentive to build and upgrade CHP units. The major revision of the Act in 2008/2009 brought important changes in this regard that promise an improvement in its economic effectiveness: • Whereas under the previous act only existing CHP  • A sharper distinction is applied with regard to existing units, with modernised and most of all high-efficiency modernised CHP units attracting a larger surcharge than old and new existing units (Section 5 read in conjunction with Section 7 KWKG). • Under Section 4 (3a) KWKG, CHP electricity consumed by the unit operator is also subject to the surcharge.
Over and above this, the targeted expansion of CHP use is promoted by the newly introduced surcharge entitlement for new and upgraded district heat networks (Sections, 5a, 6a and 7a KWKG). An interim review, notably with a view to the German government climate policy goals, is due to be carried out in 2011 by the Federal Ministry of Economics and Technology (BMWi) and the Federal Environment Ministry (BMU) in collaboration with industry associations. 37 The new Energy Concept of September 2010 does not provide any additional stimulus with regard to CHP.

Promotion of Energy Efficiency in Buildings
Buildings account for some 40% of final energy consumption in the EU, and also in Germany. The building sector generates 25 to 30% of all CO 2 emissions. 38 The potential for energy savings through energy efficiency gains is generally rated as large and by the German government in its new Energy Concept as "huge. 39 The main potential savings are in the existing stock of older buildings: about three-quarters of the residential housing stock were built before the inception of modern policies on thermal insulation with the first Thermal Insulation Ordinance of 1979. 40 For economic reasons, however, the requirements under the Thermal Insulation Ordinance in its various versions and the later Energy Saving Ordinance (EnEV) generally lagged significantly behind the state of the art, including the requirements for new buildings. The existing housing stock has largely been spared demands to upgrade insulation. Stricter requirements have only been laid down more recently in the major revisions of the EnEV in  37 For further detail on the promotion of CHP see Burgi (2009). 38 For further detail and additional references see Keyhanian (2008:370ff.). 39 BMWi & BMU (2010:26). 40 For an instructive discussion of the saving potential see Keyhanian (2008:373ff.). notable impetus from the EU Energy Performance of Buildings Directive. 41 The resulting regulatory regime can be outlined as described below.
The Energy Saving Ordinance (EnEV) 42 distinguishes between residential and non-residential buildings and takes an integrated energy efficiency approach in that the legal requirements target total building energy demand. In this it implements the corresponding requirements of the EU Energy Performance of Buildings Directive. Accordingly, under Section 3 (1) EnEV, it must be ensured that the annual primary energy requirements for heating, water heating, air conditioning and ventilation do not exceed those of a reference building. A point worth special note is the focus on 'primary' energy requirements, so that system conversion losses, losses in energy transmission and all other upstream losses are taken into account.
The rules limiting the total primary energy requirement are supported by more rules on thermal insulation. Section 5 (2) EnEV sets maximum limits for thermal transmission losses from heat-transmitting external surfaces. Section 6 EnEV lays down rules for the air-tightness of building elements; Section 7 EnEV demands a minimum of thermal insulation in accordance with generally accepted standards. The purpose of these cumulative rules on thermal insulation is to prevent sole focus on total energy requirements from creating too much leeway for builders. Otherwise, for example, an ultraefficient heating system could be taken as a reason to save on thermal insulation. The scope for trade-offs of this kind is limited by the rules on thermal insulation. One point of criticism does remain, however, and that is the use of 'generally accepted standards' as a benchmark rather than the 'state of the art', as this results in efficiency levels that fall short of what is actually attainable. 43 The rules in EnEV 2007, however, only apply to existing buildings when carrying out major renovation work (see Annex 3 EnEV). In such instances, the rules are also significantly less stringent than for new buildings (see 41 Keyhanian (2008:394ff.); for the ensuing revisions see Stock (2008:648). 43 See, with further references, Keyhanian (2008:403f.). detailed rules in Section 9 EnEV). 44 This is owed partly to the strict concept of economic viability applied under Section 5 (1) of the Energy Saving Act (EnEG). While some form of grandfathering arrangement is called for under the constitutional safeguards for property owners, given the large -according to the German government huge -potential for efficiency gains in the existing building stock, fair application of the proportionality principle would probably allow a greater burden to be placed on owners. 45 In view of the fact that the new EnEV -in line with the EU directive -is targeted on the total (primary) energy demand of a building, it is only consistent for the EnEV to include requirements for heating, ventilation, airconditioning and hot water heating systems (Section 13 ff. EnEV). 46 Very generous transitional periods are allowed with regard to the retrofitting of heating systems in existing buildings (Section 10 EnEV).
In conformity with the European Energy Performance of Buildings Directive, the EnEV provides an important information instrument in the form of energy performance certificates (Section 16 ff. EnEV). When erecting a building, and on selling, renting or leasing, the owner, tenant or lessor must present, or at least be able to present, an energy performance certificate showing the building's energy performance. The certificate can be made out on the basis of calculated energy demand or measured energy consumption. For new buildings, the certificate must contain the calculated energy demand; on structural modifications and for existing buildings, the figures can be partly based on the less informative energy consumption figures. 47 The certificate must also include a wide range of other information on building energy efficiency, including recommendations for cost-efficient improvements to the building's energy performance (see Section 17 (4) EnEV together with Annexes 6 to 9). It is expected that energy performance certificates will in future help to make the energy performance of a building an important decision criterion when properties are bought, rented or leased. 48 44 See Keyhanian (2008:397ff.). 45 Fischer & Klinski (2007:11). 46 See Keyhanian (2008:400). 47 For further detail see Schmidt (2008) July 2010 brought the entry into force of a new EU Directive on the Energy Performance of Buildings. 49 As before, it remains the sole responsibility of member states to set minimum requirements for the energy performance of buildings. 50 This is scarcely likely to spur joint effort by member states to the extent needed. At least the harmonisation of calculation and testing methods will bring more transparency regarding member state efforts (see in particular Article 3 of the Directive together with Annex I). It is to be welcomed that existing buildings are now included in the efficiency requirements under Article 7. However, member states are left considerable leeway in this regard: the overall requirements legislated by member states must only be complied with in "major renovations". The Directive does not specify whether the requirements have to be applied to the renovated building as a whole or to the renovated building elements only. On the other hand, it introduces various environmental improvements. Among other things, member states are required to ensure that "by 31 December 2020, all new buildings are nearly zero-energy buildings" (Article 9 (1) a). 51 Another point to consider is that both EU law and German law contain other regulatory regimes that affect building energy efficiency, raising difficulties in some respects when it comes to streamlining and harmonising the diversity of rules and regulations. Examples include - • the recently revised Ordinance on Small Combustion Installations (Kleinfeuerungsanlagen-Verordnung) with limits for flue losses that have an impact on efficiency 52 • the Heating Costs Ordinance (Heizkosten-Verordnung), also revised, that promotes energy economy by requiring consumption-based allocation of heating costs among residential units 53 • local government powers under the municipal code (Gemeindeordnung) in each of the German Länder to decree -now on the basis of climate change policy objectives -mandatory connection to and use of a district heating network linked to a CHP plant, 54 some approaches adopted in Länder building codes 55 • Länder climate change legislation that -for example in Hamburg -at least for a time laid down stricter thermal insulation requirements for buildings than the then EnEV, 56 and • municipal land-use planning law, which in its objectives is now expressly geared to "general climate protection" 57 and which, in laying down what can be stipulated in a land-use plan and in urban development contracts, 58 provides a wide range of approaches for promoting energy efficiency and energy economy in buildings.
It should be borne in mind when contemplating this mass of legislation that under Section 1 (3) EnEG, the provisions of the EnEG apply without prejudice to other stipulations of law that lay down stricter requirements for thermal insulation. All in all, a complex body of energy efficiency law has been developed, including many constructive approaches and also increasingly strict requirements, even if these are limited to new buildings. Given the substantial share of greenhouse gas emissions accounted for by existing buildings and the great scope for energy efficiency and economic gains, again most of all in existing buildings, any grandfathering arrangements in this regard must be scaled back in future to the constitutionally necessary minimum. 59 While the German government's Energy Concept of September 2010 in its analysis of potential energy savings and of energy savings needed in the existing building stock accords with the line of argument developed here, and also formulates truly ambitious targets, the choice of policy instruments so far looks inadequate to the task. The government aims for "a building stock which is almost climate-neutral" in the long term, i.e. by 2050, and acknowledges 54 BVerwGE 125, 68. It is now laid down in national law, in Section 16 EEWärmeG, that if there is a Länder law stipulation empowering local governments to decree mandatory connection to and use of a public district heating network, then they may now additionally make use of those powers to further climate change policy objectives. 55 See Kahl (2010a:400ff.); Kahl (2010b that existing instruments will not suffice to meet these targets. At the same time, the government emphasises that experience shows there to be "limits to the economic strain that owners can be expected to bear". It therefore concludes that a new strategic approach is needed with the focus on incentives. 60

Efficiency Requirements for Energy-related Appliances and Equipment
Mainstream environment policy was developed as an accompaniment to advancing industrialisation and, as a body of law regulating industrial facilities, aimed to protect human health and the environment from air pollution, noise, water pollution, etc. With the spread of mass-produced goods from industrial manufacture, the environmental impacts of the products themselves increasingly became a focus of environment policy attention. In time, noise and air pollution, particularly from construction machinery, motor vehicles, aircraft, rolling stock, etc., were recognised as major hazards and became regulated. Product-related environment policies of this kind gained increasingly clear recognition as a separate environment policy responsibility and have been put forward by the European Commission as part of what is referred to as integrated product policy. 61 Integrated product policy aims to take into consideration and adequately regulate the environmental impacts of products over their entire life cycle, from the mining of raw materials to production, distribution, use and waste management. 62 A central instrument of integrated product policy is the Ecodesign Directive of 2005, 63 which underwent substantial additions in 2009. 64  Ecodesign Directive provides the powers and legal framework for the Commission implementing regulations laying down environmental requirements for "energy-using products". An energy-using product is one which "once placed on the market and/or put into service, is dependent on energy input … to work as intended" (see Article 2 indent 1 of the Ecodesign Directive). The 2009 recast extends the scope of the Directive to all "energy-related products". These are defined in Article 2 indent 1 of the Directive as any good that "has an impact on energy consumption during use". This broad definition of energy-related products -as will be discussed below -results in various difficulties of legal systematics and hence also practical difficulties.
The focus on energy-related projects in the Ecodesign Directive stems from the EU's ambitious climate change policy, whose demanding targets require exploitation of all significant potential for energy efficiency gains. The potential energy savings through efficiency improvements on energyrelated products -excluding means of transport for persons or goods (see Article 1 (3) of the Directive) -are estimated at 190 TWh per year. 65 The Ecodesign Directive also creates powers to lay down comprehensive environmental impact requirements for products (see Article 15 (2) c). For the time being, however, the priority is laid on energy efficiency for climate change policy purposes. 66 To date, the Commission has enacted implementing measures in regulations on the following product groups: set-top boxes, 67 non-directional household lamps, 68 fluorescent lamps and high-intensity discharge lamps, 69 external power supplies, 70 electric motors, 71 glandless circula-tors, 72 televisions, 73 and household refrigerating appliances. 74 To these is added the previously issued, non-product-specific Standby Regulation governing the electric power consumption of household and office equipment. 75 The Standby Regulation alone enjoys considerable practical importance by virtue of the fact that the power consumption of devices on standby is estimated at some 3.5% of total consumption in the EU. A major stir was caused by the Household Lamps Regulation, which imposed a de facto ban on incandescent light bulbs, as it is impossible for these to meet the efficiency requirements laid down for them. 76 According to the Commission's working plan, implementing regulations are soon to be expected for washing machines, dishwashers and fans. 77 Germany has transposed the Ecodesign Directive into German law in the Energy Using Products Act (EBPG); 78 transposition of the recast Ecodesign Directive was required by 20 November 2010 (Article 23 (1) of the Ecodesign Directive, first sentence). Like the Ecodesign Directive, the EBPG does not lay down binding ecodesign requirements. In this regard, Section 2 (3) 1 of the EBPG explicitly refers to the implementing measures already enacted or still to be enacted by the Commission as European Community law of direct effect. Under Section 3 of the EBPG, the German government additionally has powers to enact secondary legislation, allowing detailed rules to be laid down promoting the implementation of the EU Commission's implementing measures. The German government has evidently so far had no occasion to issue rules of this kind supplementing the implementing measures enacted by the Commission.
The main legislative substance of the EBPG consists of provisions to ensure that the ecodesign requirements laid down by the Commission are ac- tually complied with in Germany. Under Section 4 EBPG, an affected product may only be placed on the market if - • it meets the requirements in the implementing legislation • it is labelled with a CE mark in accordance with Section 6 EBPG, and • a declaration of conformity has been issued for the product in which the manufacturer warrants that all requirements of the applicable implementing legislation are complied with.
Also of considerable importance are the market surveillance measures provided for under Section 7 EBPG to ensure compliance by producers and vendors. Section 7 (1) EBPG requires the competent authorities to compile a surveillance plan. Section 7 (3) to (5) provides for a wide range of surveillance measures, including sample taking, (temporary) prohibition from placing a product on the market, and product recall or withdrawal orders. The broader scope of the recast Ecodesign Directive raises difficult issues of where to draw the line. As the Directive now applies not only to "energy using products" but to "any good that has an impact on energy consumption during use", it will probably become necessary to define the boundary with other regulatory regimes. Recital 4 of the Directive, for example, also applies to products used in construction such as windows and insulation materials, and shower heads and taps. Construction materials -as discussed at length above -are already subject to energy-related requirements under the regime established by the EU Energy Performance of Buildings Directive and the EnEV. Additionally, considering that Article 21 requires the Commission to assess the appropriateness of extending the scope of the Directive to nonenergy-related products, the Ecodesign Directive could -as Schomerus put it -develop to become an "environment super-directive". But that is going beyond the subject of climate change policy.

Promotion of Energy Efficiency in Industrial Facilities, Aviation and Shipping through Emissions Trading
Transposition of the Intergovernmental Panel on Climate Change Directive into German law made energy efficiency a basic requirement for installations subject to licensing under the Federal Immission Control Act (BImSchG). Section 5 (1) 4 of the earlier BImSchG was prevented from gaining

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widespread application, 79 however, notably owing to a lack of supporting detail rules at a subordinate legislative level. With the introduction of emissions trading, the energy efficiency requirement in the first sentence of Section 5 (1) 4 BImSchG was overruled in that "the objective of compliance with the obligation to ensure efficient energy use must not lead to requirements related to carbon dioxide emissions based on combustion or other processes in the installation that go beyond the requirements laid down in the Greenhouse Gas Emissions Trading Act" (Section 5 (1) BImSchG, fourth sentence). 80 The decisive factor for energy efficiency improvements under law relating to industrial facilities is thus the greenhouse gas mitigating efficiency of emissions trading as the "central instrument" of European climate change policy.
The A first trial trading phase from 2005 to 2007 was negotiated with bureaucratic efforts but achieved little or nothing in terms of climate change mitigation. This was due to an over-elaborate allocation plan that was not only influenced both by German government industrial policy objectives and by 79 See Koch (1998);Rebentisch (2001:430ff. industry (and notably coal industry) lobbying, 87 but also led to companies being allocated too many emission allowances. 88 Neither any impact on emission reductions nor an efficient reduction trajectory could be expected to be attained in this way. That individual studies should nonetheless have arrived at analysis models giving a positive assessment of the first trading phase is hard to comprehend. 89 In the meantime, on the basis of the Allocation Act 2012 of 7 August 2007 90 and National Allocation Plan II of 28 June 2007, 91 emissions trading has entered the Kyoto Phase (2008 to 2012). The allocation plan has been simplified with regard to allocation criteria, giving the efficiency of emissions trading a greater chance of coming into its own. 92 Over-allocation of emission allowances seems to have been avoided this time under pressure from the European Commission. 93 The European Commission rightly identified weaknesses in emissions trading in the form in which it was initially institutionalised, and responded to the criticism. Following thorough consultation, 94 Directive 2009/29/ EC 95 brought substantial adjustments to the emissions trading scheme that support expectations that emissions trading will be made more effective in future.
Three points should be noted in this revision of the • Secondly, allocation of allowances is essentially to be prescribed at EU level in future by setting a maximum quantity of allowances with allocation schedules for member states. 98 • Finally, the Directive codifies in law one of the central demands made by the Sachverständigenrat für Umweltfragen (SRU): a fundamental obligation on member states to auction the available quantity of allowances instead of allocating them free of charge as in the first trading period (see Article 10). This is the only way to prevent over-allocation of allowances and to ensure an efficient emission trading system. 99 For this very reason, however, the revised Emissions Trading Directive is to be criticised for incorporating transitional arrangements in Articles 10a, 10b and 10c that mean full auctioning is not required until 2027, and even then with exemptions allowed for certain industries that are subject to international competition. The emissions trading system was substantially extended by an amending directive, 2008/101/EC. 100 Under this directive, all aircraft operators whose aircraft take off or land in EU member states are generally included in the emissions trading system (Article 3a read in conjunction with Annex I (b)). 101 From 1 January 2010, operators must report CO 2 emissions from their flights (Article 14 (3)). From 2012, allowances must be surrendered for flight emissions (Article 3c (1)). The legal foundation for data collection in Germany has the power to issue secondary legislation in Section 27 of the Greenhouse Gas Emissions Trading Act (TEHG) -inserted by the First Act  103 The ruling is that 15% of allowances must be auctioned. This percentage can be increased from 1 January 2013 as part of the general review of the Directive (Article 3d (1) and (2)). The extension of the emissions trading system to aviation -a change not yet incorporated in the Kyoto Protocol -is to be welcomed. While aviation only causes about 3% of global greenhouse gas emissions, 104 the rapid growth in air traffic 105 and the greater climate impact of greenhouse gas emissions at flight altitudes 106 make aviation one of the sectors where climate change policy must apply. The inclusion of aviation in emissions trading is criticised from various quarters. The SRU is in favour of including aviation in emissions trading in principle, but considers the setting of the emissions budget on the basis of average aviation emissions in the period 2004 to 2006 to be too undemanding (see Article 3 c (1) read in conjunction with Article 1 (1) s). 107 Other parties, with regard to Europe going its own way, fear competitive disadvantages for European, including German, aviation and raise doubts about the regime's compatibility with international aviation law. 108 The European Union has now put the inclusion of shipping in emission trading on the agenda. Global CO 2 emissions from shipping are considerable: 109 European maritime trade accounts for about 32% of global greenhouse gas emissions from maritime transport. 110 The International Maritime Organization has come out against including shipping in the emissions trading system, however, and instead proposes the setting of technical standards 102 BGBl I 2009, 1954. 103 BGBl I 2009, 2118. 104 EU Commission (2005. 105 On developments in Germany see Koch (2010:277f. with further references); see also SRU (2008a:para. 195); with a view to the increase in greenhouse gas emissions from aviation, the EU Commission notes: "If the growth continues as up to now, emissions from international flights from EU airports will by 2012 have increased by 150 % since 1990." EU Commission ( on CO 2 reduction to secure faster adoption of new low-emissions and more energy-efficient technologies. 111 Because consensus was not reached by 31 December 2011, the Commission plans to propose a corresponding revision of the Emissions Trading Directive. 112 How the EU emissions trading regime will develop is also very much of an open question, given the lack of progress in international negotiations on a continuation of the Kyoto Protocol or a new global climate regime post-2012. The Copenhagen Conference in December 2009 regrettably delivered no more than a half-hearted, non-binding acknowledgement of the 2°C target. 113 At least the 2°C target was bindingly adopted at the Cancún Conference.

Increasing Energy Efficiency in Motor Vehicles
The German motor vehicle fleet accounts for about 12% of national CO 2 emissions. 114 Technically there are numerous options for reducing vehicle greenhouse gas emissions. These include different forms of motive power 115 (hybrid vehicles, electric vehicles and biofuel admixtures) and also efficiency improvements to conventional power trains. As CO 2 emissions correlate one-to-one with fossil fuel consumption, efficiency requirements can be laid down in law with the aid of CO 2 emission limits. The regulatory toolbox includes command-and-control instruments such as CO 2 emission limits with fines if exceeded, duties, and inclusion of road transport in emissions trading. 116 The European Commission's initial goal was a significant reduction in CO 2 emissions from road transport by way of a voluntary commitment by the European automotive industry, consisting of a reduction in average fuel consumption in the new car fleet to 140 g CO 2 /km by 2008; this target was not attained. 117  laid down binding requirements for annual reductions in CO 2 emissions from the new vehicle fleet with noncompliance sanctioned with fines (Article 9). The European Commission aims to attain a reduction in average CO 2 emissions to 95 g/kg by 2020. 120 To attain this target of the European Community, Article 4 of the Regulation provides for phased, obligatory CO 2 reductions, by means of improvements in engine technology, to 130 g/km for the entire new car fleet by 2015. This is to be achieved in stages by requiring the 130 g/km target to be met by 65% of each manufacturer's new passenger cars registered in 2012, 75% in 2013 and 80% in 2014 (see Table 1 below). A further reduction of 10 g CO 2 /km or equivalent is to be achieved by technical improvements and increased use of biofuels. 121 From a model-based impact assessment, it is assumed that the stipulated fleet emission limits will attain a reduction in CO 2 emissions, relative to the trend with no action taken, of 17.9% by 2020 and 38% by 2030. In absolute figures this is equivalent to 32 million t by 2030. 122 The SRU has already shown in a 2005 special report that greater efficiency improvements are indeed possible. 123 This would require a trend reversal in car manufacturing, however, because past efficiency gains have been partly wiped out by a continuous increase in vehicle weight, engine power and 118 EU Commission (2007a engine capacity. 124 Road transport is a policy area where the limits of the efficiency paradigm are particularly in evidence. Efficient use of energy will have to be supplemented by energy saving. What effect is to be had from the use of other power trains and particularly from the (limited) use of biofuels is something that -for cars as for other energy-using products -will have to be determined in a life-cycle analysis and by taking primary energy requirements into account.
The European Commission has meanwhile presented proposals for fleet emission limits in respect of light commercial vehicles. 125 The phased approach is shown in Table 2 below. Annex 3 of the Directive contains an indicative list of energy efficiency improvement measures relating, among other things, to heating, building insulation and the use of CHP plants. This presents a problem of legal systematics, and hence a practical problem of this cross-sectoral directive in the form of a potential collision with the sector-specific energy efficiency requirements discussed earlier. With a view to the intensive development of sectoral energy efficiency requirements in secondary legislation, the Directive should be supplemented with clarifying provisions.
The regulatory programme under the Energy Services Directive must also be distinguished from the energy-efficiency-related provisions in the internal market in energy legislation. Self-evidently, environment protection, being a cross-sectoral policy area (see also Article 11 TFEU), creates a need for added stipulations alongside and in some cases within energy law. More and more environment-related provisions have thus found their way into the

VI.
129 For numerous details, see Gawel (2010 internal market in energy legislation. More still were added in the third internal market package. 131 The original Internal Market in Electricity Directive already contained provisions requiring efficiency improvements and its successor added to them. The requirements mainly relate to energy efficiency in generation and conversion and to energy transmission, whereas the Energy Services Directive targets end-use energy efficiency and related energy services. There are, however, questionable overlaps, for example regarding the energy management services that energy undertakings are expected to provide for energy users under Article 3 (11) of the Internal Market in Electricity Directive. The Energy Services Directive makes similar stipulations, but far more emphatically, for example with the indicative energy savings targets for member states, including the obligation to submit national energy efficiency action plans. In other respects, too, the energy-efficiency-related provisions in the internal market in energy legislation tend to be mostly programmatic, and most of all they are not backed up with adequate instruments -for which reason they are not discussed in greater depth here.
The Energy Services Directive was meant to be transposed into national law by 17 May 2008, and in parts earlier (see Article 18 (1)). Germany's first attempt -a proposal for an Energy Efficiency Improvement Act (EnE-fG-E) of 30 January 2009 -failed at the interdepartmental consultation stage. 132 The Act on Energy Services and other Energy Efficiency Measures (EDL-G) of 4 November 2010 133 has since entered into force. This short act with 13 sections is a one-to-one transposition of the Directive. In the explanatory notes, reference is made to the many sector-specific regulatory regimes on energy efficiency and the new act is described as a "Stammgesetz", the principal act on the policy area. Notable points are the creation of a Federal Agency for Energy Efficiency at the Federal Office of Economics and Export Control (Section 9), together with an advisory council (Section 10). In many cases, details are left to be laid down in secondary legislation (Sections 4, 5, 7 and 11 EDL-G).
The Federal Ministry of Economics and Technology (BMWi) presented a National Energy Efficiency Action Plan and submitted it to the European Commission at the end of 2007. 134 This describes how the 9% indicative 131 Instructive on numerous details, Britz (2010). 132 See Kachel (2009);Pielow (2010:122). 133 BGBl I 2010, 1483. 134 BMWi (2007 for further detail see SRU (2008a:para. 127ff.). energy savings target is to be attained by 2016. The key sectors of buildings, energy-using products and transportation covered in this section are likewise major areas of focus in the Nationaler Energieeffizienz-Aktionsplan (EEAP). Some of the action plan has already been put into effect, such as the CO 2 -based road tax and the tightening of requirements in the EnEV. In its assessment, the Commission was critical of some parts of the plan. 135

Interim Assessment of Energy Efficiency Law
As a positive overall outcome, a remarkably complex body of energy efficiency law relating to climate change has been developed at the level of the European Community with national additions on transposition into national law. The degree of complexity is generally appropriate, given the challenges to be dealt with. Under the climate change objectives pursued by the Community and by Germany, it is to be welcomed that a body of energy efficiency law has been created for all key sectors where it is possible and imperative to reap energy efficiency gains -buildings, appliances and equipment, industry, and transportation -with constructive regulatory strategies, innovative regulatory structures and, in many cases, demanding requirements. One striking aspect is the renaissance of command-and-control regulation. This applies to the buildings sector, product-related law and now motor vehicles. Whether it is still possible to speak of emissions trading as the "central instrument" of climate change policy appears highly questionable.
This brings us to the conspicuous shortcomings of energy efficiency law as a means of addressing climate change. The revised EU Emissions Trading Directive raises hopes for improvement, however. The effectiveness of emissions trading has yet to be tested in the aviation sector; it is even more of an unknown with regard to the shipping sector, where it may never be adopted for shipping at all.
In the particularly important building sector, certainly too little has been done with regard to existing buildings. The German government's latest Energy Concept is disappointing on precisely this issue. The much-vaunted constitutional limit to the burden that can reasonably be placed on building owners has not yet been reached by far and does not stand in the way of VII. 135 EU Commission (2008c); for another critical appraisal see SRU (2008a:para. 127ff.).
scaling back grandfathering arrangements in the way that would be desirable on climate policy grounds. The command-and-control rules on vehicle CO 2 emissions are too complicated for it to be possible to predict their effectiveness. As a rule, when evaluating any climate efficiency strategy, consideration must be given to the fact that such strategies are countered by growing energy demand. Thus, alongside the efficiency 'revolution', efforts must also be made to achieve energy savings. The energy savings target in the Energy Services Directive must consequently be developed further and be backed up with suitably sophisticated policy instruments at national level. For road transport, for example, a simple CO 2 reduction strategy based on commandand-control requirements on vehicle emissions is not enough. What is needed instead is an integrated regulatory strategy that operates at source -in planning and traffic management -under the banner of "more mobility with less traffic" 136 Consideration must also be given to the second central precondition for successful climate change policy -that of substituting fossil fuels with renewable energy. This is discussed in the following section.

Legal Framework for the Promotion of Renewable Energy
Substitution of carbon-based fossil fuels coal, mineral oil and gas through the use of renewable energy is of fundamental importance in climate change mitigation. 137 Renewable energy sources include wind, hydropower, solar power, biomass, tidal energy and geothermal energy. These primary energy sources have the basic advantage that no CO 2 emissions occur in their use, or, in the case of biomass, that its use is at least carbon neutral. Renewable energy resources are also seen as infinite This must, however, be seen from different perspectives. In particular, it must be remembered that the production of biomass often conflicts with other uses of agricultural land and that,

D.
136 See SRU (2005:para. 134ff.); see also Groß (2010). 137 For a recent discussion see BMU (2009a); Bundesregierung (2009b); see the economic critique by Wackerbauer (2009:176), according to which the EEG only has a "very limited environment policy function" following the introduction of emissions trading. The National Action Plan on Renewable Energy is unable to dispel this criticism.
in the interest of preserving nature and the landscape, its production must take account of nature conservation provisions. 138

The Renewable Energy Sources Act
Germany has long played a pioneering role in the promotion of renewable energy, particularly wind energy. With the Electricity Feed-In Act (Stromeinspeisungsgesetz) of 7 December 1990 (see II above), Germany adopted a successful promotion strategy, which received a positive evaluation from the EU Commission, 139 was confirmed by the Federal Court of Justice 140 and the EU Court of Justice 141 as being compliant with the German constitution and EU law, and has been emulated by many EU member states. The Electricity Feed-In Act has since undergone a number of major revisions. The resulting body of law in force today is contained in the Renewable Energy Sources Act (EEG) of 25 October 2008. 142 Under Section 1 (2), the aim of the new Act is to generate 30% of electricity supply from renewable energy resources by 2020. The instrumental core of the former Electricity Feed-in Act has been retained: grid operators must feed renewables-generated electricity on a priority basis into the grid and charge a state-specified price for it. The initial, fundamental debate whether the requirement for grid operators to pay for renewables-generated electricity represented an unlawful levy under constitutional fiscal rules and/or unlawful state aid under Community law is largely over. 143 In particular, it has been clarified in European law that the I.  (2009). 143 On these controversies, see Koch & Schütte (1998). definition of state aid is only satisfied if there is direct funding from state resources, 144 which is not the case with a feed-in tariff.
In the Renewable Energy Directive of 23 April 2009, 145 the Community now has an elaborate legal framework for the promotion of renewable energy sources. 146 Unlike its 2001 predecessor, the new Renewable Energy Directive covers all major uses of renewable energy; alongside electricity generation, it thus also includes heating, refrigeration and -following on from the former Biofuels Directive -the production of fuels from renewable energy sources. As a target, Article 3 (1) of the Renewable Energy Directive lays down that renewable energy sources are to account for at least a 20% share of the Community's gross final energy consumption by 2020. The individual member states are each assigned national targets, the target for Germany being 18%. The German government's current Reference Scenario 2009 projects that renewables will account for 20% of final energy consumption by 2020. 147 In the transportation sector, Article 3 (4) of the Renewable Energy Directive requires all member states to attain a 10% renewables share by 2020. Apart from this, member states are left to decide the contribution to be made by each sector towards the overall target.
Member states are thus essentially left to decide by which means they will attain the target. They are able to apply a broad range of "support schemes" (Article 3 (3) of the Renewable Energy Directive). Under the legal definition in Article 2 (k) of the Directive, these include investment aid, tax exemptions, feed-in tariffs, premium payments and green certificates. The Community thus does not make a choice between the two competing systems with regard to electricity generation -the quota approach and the German feed-in approach. 148 Under the quota approach, the state specifies what percentage of electricity consumption, as measured at the supplier or the end consumer, must come from renewables. The feed-in approach combines a requirement for grid operators to accept renewables-generated electricity with the obligation to pay a state-specified tariff. Both modelling-based analyses and practice-based efficiency analyses show advantages in favour of the feed-in approach. 149 Regardless of what promotional instrument they use, member states must ensure that grid operators provide priority access for renewables-generated electricity (Article 16 (2) (a) and (b) of the Renewable Energy Directive). Ensuring this in practice requires corresponding grid capacity. It is thus only consistent that Article 16 (1) of the Directive establishes an obligation to develop adequate infrastructure. Finally, under Article 4 (1) of the Directive, member states each had to submit to the Commission a national renewable energy action plan by no later than 30 June 2009. These had to set out overall national targets for the share of energy from renewable sources consumed in transport, electricity and heating and cooling, together with adequate measures to be taken to achieve those targets. 150 The requirements of the Renewable Energy Directive concerning heating and the sustainable production of biofuels are discussed in the next two sections (2 and 3).
The revised EEG already corresponds in substantial parts with the requirements of the Renewable Energy Directive; indeed, when it comes to stipulating the feed-in approach, it now has greater endorsement in European law than before. The following may be regarded as the most important onward developments in national law: 151 1. The connection of renewable energy facilities required to purchase, transmit and distribute the electricity must occur "immediately" and "as a priority" (Section 5 (1) and the first sentence of Section 8 (1) EEG). 2. If grid capacity is inadequate despite consistent priority access for green power, the grid system operator has "upon the request of those interested in feeding in electricity" to improve, boost and if necessary expand their grid infrastructure to guarantee the purchase, transmission and distribution of the electricity (Section 9 (1) EEG). For the transitional period until supply shortages have been remedied, detailed "feed-in management" arrangements must be met (Sections 11 and 12 EEG). 149 EU Commission (2005b). 150 See German Government (2009b). 151 For details see Oschmann (2009:264ff.); and Weißenborn (2009) 3. With regard to who pays the feed-in tariff, the mechanisms of vertical and horizontal compensation between grid system operators and electricity supply companies have been enhanced into a finely balanced system that levels out regional differences in the feed-in tariff burden faced by grid operators across the country. Important detail is added in the Equalisation Scheme Ordinance (AusglMechV). 4. The ever-controversial provisions on tariff levels have likewise been revised in favour of wind energy and biomass, although there are various problems with the latter. Separately from this, the feed-in tariff for solar power has recently been reduced owing to "over-subsidisation". 152 5. Where electricity is generated from biomass, a premium for biomass within the meaning of Section 27 and Annex 2 EEG is paid, provided that sustainability requirements laid down in the Biomass Electricity Sustainability Ordinance are met. 153 Transposition of the Renewable Energy Directive into national law is not fully complete, however. 154 Specifically, this applies to the following elements of the Directive: • Article 16 (5) of the Renewable Energy Directive creates a detailed obligation requiring grid operators to provide information for new producers of energy from renewable sources. The less precise Section 5 (1) EEG could well benefit from clarification. • With regard to the guarantees of origin under Section 55 EEG, the mechanisms to ensure that guarantees of origin are issued electronically (Article 15 (5) of the Renewable Energy Directive) need to be established and included.
The German government has now adopted an act amending German renewable energy legislation in line with European law. This includes: • amendments to the EEG relating to the requirement of grid operators to provide information as just mentioned, guarantees of origin, and the powers of enactment with regard to the Biomass Sustainability Ordinance (BioNachV), and 152 Act dated 11 August 2010, BGBl I 2010, 1170; for an instructive efficiency analysis of the various feed-in tariffs see also Schröer & Zierahn (2010). 153 On the complex details see Weißenborn (2009); further Vollprecht (2010). 154 For further detail see Ringel & Bitsch (2009). • amendments to the EEWärmeG, notably with regard to the example-setting role of the public sector in adding thermal insulation to public buildings. 155

The Renewable Energies Heat Act
In line with the Meseberg Integrated Energy and Climate Programme, new instruments were introduced under the Renewable Energies Heat Act (EEWärmG) of 7 August 2008, 156 which was designed to foster and enforce the use of renewable energy for heat supply. 157 This is of particular importance in climate policy because around half of the energy used in Germany goes to supplying heat and for refrigeration. 158 The aim is thus not only to reduce energy consumption by improving energy efficiency, with, among other things, the aid of the EnEV, but also to switch the unavoidable portion of energy consumption over to renewable energy. It is hoped that the share of renewables in heat supply will be increased from the current 6.6% to 14% in 2020 (see Section 1 (2) EEWärmeG). The regulatory core of the Renewable Energies Heat Act (EEWärmG) comprises a statutory obligation to cover a percentage of heat demand from renewable energy sources. The percentage involved depends on the type of energy used and ranges from 15% for solar energy (Section 15 (1) EEWärmeG) to 50% for biofuels (Section 5 (3) No. 1 EEWärmeG). The obligation to meet heat demand using renewables may be replaced by other measures, however. This applies, for example, if at least 50% of heat demand is met from high-performance CHP plants (Section 7 (1) b EEWärmeG). Also, it is permissible to substitute the use of renewable energy by meeting a greater percentage than that prescribed with high energy efficiency in buildings. This means that building owners must exceed the EnEV require-II. ments by 15%. 159 The aim of these and other provisions is to keep the financial burden arising from the various climate-change instruments at a reasonable level. There are doubts, however, regarding the conformity of these substitution rules with the Renewable Energy Directive, in which the third paragraph of Article 13 (4) stipulates that "minimum levels" of energy from renewable sources must be used in all new buildings and also in existing buildings subject to major renovation by no later than 31 December 2014. 160 Alongside the command-and-control requirement to use renewable energy, the first sentence of Section 1 EEWärmeG provides for €500 million a year in grant funding up to 2012 primarily for modifications to existing buildings. This addresses a central point of building-related climate change regulation with regard to both energy efficiency and renewable energy sources: namely, without substantial improvements in existing buildings, the effects of legislative provisions on climate change will remain very unsatisfactory.
The statutory obligation to make use of renewable energy sources and the grant funding for modifications to existing buildings are supplemented by promotion of district heating networks under Section 16 EEWärmeG as the third pillar of the act. As mentioned earlier, this adds climate change policy to the grounds for which local governments are allowed to exercise powers under Länder law to impose an obligation to connect and utilise district heat.

Biofuels for Motor Vehicles
In view of the considerable contribution -approximately 12% 161 -made by road traffic to greenhouse gas emissions, the European Union and also Germany have adopted targets for the use of biofuel -which were initially highly ambitious, although they have been lowered since. 162 The Meseberg Integrated Energy and Climate Programme included a 17% target for biofuels for use in motor vehicles by 2020. The German Advisory Council on the Environment (SRU) found this target to be far too high, because no consideration had been given when setting the biofuel quota to land use conflicts

III.
159 For greater detail see Wustlich (2008a. 160 For further detail see Ringel & Bitsch (2009:811 and adequate nature conservation standards, let alone climate efficiency. 163 Arguing from a climate change standpoint, the Council favours biomass use in stationary CHP plants. 164 It is thus to be welcomed that the European Union in Article 3 (4) of the Renewable Energy Directive 165 prescribes a renewables share of 'only' 10% for the transport sector as a whole.
The German government aims to attain the national target under the Renewable Energy Directive of an 18% renewable energy share of final energy consumption by 2020 with 30% of renewable energy in electricity generation, 14% in heating and 12% in transportation. 166 As a result of the Biofuels Quota Act of 2007 as revised in 2009, 167 the statutory provision for a biofuels quota is now to be found in Section 37a-f BImSchG. This lays down an overall biofuels quota for petrol and diesel of 6.25% for the years 2010 to 2014 (section 37a (3) of the revised BImSchG). The quota requirement applies to business enterprises that place fuels on the market. The quota can be met both by admixing biofuels and by placing pure biofuels on the market. 168 The quota requirement introduced, in 2007 brought in a command-andcontrol measure that took the place of the previous tax incentives for biofuels. Doubts raised under German constitutional law and European law under the heading of the protection of legitimate expectations were dismissed by the Federal Constitutional Court 169 and the European Court of Justice 170 Given the prevailing conflicts regarding its use -with food production in particular -and the environmental risks involved, biomass production re- 163 SRU (2007:para. 105ff., 150). 164 See also SRU (2008a:para. 146 • adequate greenhouse gas emission savings be achieved for biofuels, i.e. a 35% reduction in such emissions • land of recognised high biodiversity value, which is specified in detail, should not be used for biomass production • biomass must not be made from crops grown on land with high carbon stocks, and • cross-compliance requirements be observed.
Article 18 of the Renewables Directive contains monitoring provisions whose focal point comprises a compliance verification system.
The decisive provision for practical enforcement of the sustainability requirements is the first sentence of Article 17 (1) of the Renewable Energy Directive, under which biofuels can only be taken into account when measuring compliance with the national renewable energy targets if the sustainability criteria set out in Article 17 (2) to (6) of the Directive are met. These criteria are transposed into German law in more specific form in the Biofuels Sustainability Ordinance (Biokraft-NachV) of 30 September 2009. 172 Attainment of the German national target is backed up by sanction in Section 37c (2) BImSchG, which requires business enterprises to pay a levy if they fail to meet their biofuel quota. Overall, the conclusion may be permitted that overblown expectations have given way here to a realistic assessment where, under EU influence, the sustainability requirements have been recognised for what they are capable of achieving. 173

Use of Biogas
A key component in the promotion of renewable energy involves greater use of biogas. Accordingly, the German government has introduced a package of rules which simplify the procedure for feeding biogas into the gas grid. The package includes a revised Gas Network Access Ordinance (GasNZV) and the Gas Network Charges Ordinance (GasNEV). 174

Interim Assessment of Renewable Energy Law
With the original Electricity Feed-in Act, Germany embarked on a path towards promoting renewable energy sources that has since become a Europewide success story. With the major revision of the EEG in 2009, the revision of the EEWärmeG likewise in 2009 and the Biofuels Quota Act of 30 September 2009, Germany is aiming to achieve widespread use of renewable energy sources. With the revised Renewable Energy Directive of 23 April 2009, the EU, too, has created a comprehensive legal framework to promote the use of renewable energy, with clear quantified targets for member states. Germany, for its part, is to meet 18% of gross primary energy consumption from renewable energy sources by 2020 and plans to accomplish this with a 30% renewables share in electricity generation, 14% in heating and 12% in transportation.
These are ambitious goals overall and appear to be backed up with a promising set of policy instruments. Whether the legal framework for sustainable biofuel production proves able to avoid mistakes in the long term is something that will have to be carefully watched.
The medium-term substitution strategy with 30% renewables by 2030, 45% by 2040 and 60% by 2050 also requires further assessment to determine if additional legal instruments are needed.

Outlook
Overall, in the relatively short period of 20 years since the Rio Summit of 1992, a remarkably complex body of climate change law has been created at international level and notably also at European and EU member state level. This legal framework features a diverse range of instruments, encompassing not only the great experiment of emissions trading, but also highly controversial command-and-control regulation in certain areas of energy efficiency law and renewable energy law. Particularly noteworthy is that the regulatory regimes now generally feature explicitly formulated targets. This encourages transparent and rational debate on the necessary onward development of the legal framework. The Federal Government of Germany decided, after the catastrophic accident in the nuclear energy plants in Fukushima (2011), to phase out the use of nuclear energy for power generation. A big package of alterations of statutes were passed by the legislative bodies (Bundestag and Bundesrat), including the phasing out of nuclear energy and the introduction of regulations to reinforce renewable energy and energy efficiency, as well as statutes providing electricity from renewable energies. 175