1 INTRODUCTION
1.1 Background and problem definition
“Cities can act, while states only talk” Michael Bloomberg1 has stated about the role of cities combating the climate change.2 Climate change is seen as the most wicked3 environ-mental,4 ethical5 and economic6 problem the human race has ever faced. The Intergovern-mental Panel on Climate Change (IPCC)7 has concluded, that the influence of humans on the climate system is clear and the emissions of greenhouse gases (GHG) are at the highest level in history.8 Without changes, emission of GHGs will cause further warming and long-lasting impacts to the whole climate system.9
The main international treaty on fighting climate change, the United Nations Framework Convention on Climate Change (UNFCCC), was agreed upon 1992.10 However, the first global legally binding climate agreement was made by the UNFCCC parties in Paris in the year 2015 in Conference of the Parties (COP) 2111 Decision 1/CP 21 Adaptation of the Paris Agreement (COP Decision 1/CP 21).12 The EU13 is one of the signatories of the Paris Agree-ment. Countries committed to keep the increase in global temperature below 2 degrees.14 National pledges were made for diminishing and limiting carbon emissions. Due to Article (Art.) 4 paragraph (para.) 2 of the Paris Agreement, each participant country is obliged to
1 The chairman of UN Special Envoy on Cities and Climate Change.
2 Lin 2018, p. 106.
3 The wicked problem in environmental research was launched by Rittel and Webber 1973.
4 Art. 11 of the Treaty on Functioning of the European Union (TFEU). OJ 26.10.2012 C 326, p. 47–390.
5 Grosso Climate Change 2007; Gardiner Environmental Values 2006.
6 Weitzman The Review of Economics and Statistics 2009.
7 The IPCC is an organization, which produces internationally coordinated scientific information related to climate change and also realistic response strategies. IPCC Chair Vision Paper 2017.
8 IPCC AR6 Chair Vision Paper 2017, p. 7.
9 IPCC AR5 Climate Change Synthesis Report 2014, p. V.
10 The United Nations Framework Convention on Climate Change, (adopted on 9th of May in Rio de Janeiro, entered into force on 21st of March 1994). 1771 UNTS 107.
11 The UNFCCC: Paris Agreement to the United Nations Framework Convention on Climate Change adopted at COP21 in Paris, France, on the 2nd December 2015, (adopted 22nd April 2016, entered into force the 4th of November 2016). FCCC/CP/2015/10/Add.1 (The Paris Agreement)
12 It will be implemented by 2020. Before the year 2020, the UNFCCC: Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted at COP 3 in Kyoto Japan, on the 11th of December 1997, entered into force the 16th of February 2005). 2303 UNTS 148 (the Kyoto Protocol), is the only legally binding instrument to cut greenhouse gas emissions covering, however, only 12 % of the total emissions.
13 That is all its member states.
14 Art. 2.1a of the Paris Agreement.
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“prepare, communicate and maintain successive” so called nationally determined contribu-tions (NDCs). The NDCs were formulated according to each country`s circumstances.15 Now it seems, however, that even though all these national emission reduction targets would be implemented, 2 degrees pathway will not be achieved.16 This in turn means that other parties of the society also needs to get involved.
The role of non-state actors,17 such as cities, preventing climate change was recognized the first time by the Paris Agreement.18 Cities were invited to make “efforts to respond to cli-mate change” and reduce their emissions.19 These efforts were invited to be registered to the Non-State Actor Zone for Climate Action Platform.20 In addition, another international fo-rum, the UN Sustainable Development Goals, includes the idea that cities could surpass the agreed upon climate goals.21 In the present complex situation, the interest towards the role of non-state actors, such as cities and companies, in climate-resilient transformations is glob-ally increasing.22 It has also been suggested, that responses by non-state actors could con-tribute to the current complexity.23 For now, we are missing verifiable information about non-state climate actions due to the absence of reporting.24
The national Climate Change Act (CCA 609/2015) entered into force in Finland in 2015.25 The national climate change policy of Finland bases on international and EU policies on climate change.26 The UNFCCC entered into force in Finland on the 21st of March 1994 and
15 Art. 4(3) of the Paris Agreement.
16 UNEP Emissions Gap Report 2018, p. 21.
17 By non-state actors are referred to civil society, the private sector, financial institutions, cities and subna-tional authorities. The Paris Agreement, para. 133.
18 The UNFCCC. COP. Report of the Conference of the Parties on its twenty-first session, held in Paris from the 30th of November to the 13th of December 2015, Part two: Action taken by the COP at its 21st session.
Decisions adopted by the COP. Adoption of the Paris Agreement (COP Decision 1/CP 21), para. 117 & and para. 134.
19 COP Decision 1/CP 21 Adaptation of the Paris Agreeement, paras. 133–134.
20 COP Decision 1/CP 21 Adaptation of the Paris Agreement, para. 117 and para. 134.
21 Chan et al. WIRES Clim Change 2019, p. 2.
22 Hale 2018, p. 4; 9; 11 and 14.
23 Kuyper – Linner – Schroeder WIRES Clim Change 2018; van Asselt Climate Law 2016, p. 94–95; 107.
24 UNEP Emissions Gap Report 2018, p. XI.
25 SopS 61/1994
26 Ministry of Environment: The environment: Climate and air: Mitigation of climate change:
National climate change policy 2019.
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the Kyoto Protocol27 was ratified in May 2002, becoming legally binding on the 16th of Feb-ruary in 2005. The Paris Agreement entered into force in 2016.28 Finland is obliged to apply international climate regime via the European Union (EU).29 Due to these international agreements Finland gained GHG emission reduction targets and reporting responsibilities.30 Statistics Finland is responsible for the GHG inventory measures.31 The reports show that Finland decreased its emissions 5 % under the target during the first evaluation period,32 which meant that emissions had to be at the same level as the year 1990. In 2015 emissions were 22 % below the 1990 level.33
The current Finnish government has set a goal, that Finland will become a carbon-neutral country by 2035.34 The previous target of the Finnish government was to reduce GHG emis-sions 80–95 % by the year 2050.35 This means that the pressure towards non-state actors´
role in preventing climate change is increasing in Finland. Furthermore, the EU has addi-tional policies and measures in place with the aim of limiting the GHG emissions from sources not covered under the Directive 2003/87/European Community (EC) of the Euro-pean Parliament and of the Council of 19 October 2003 establishing a scheme for GHG emission allowance trading within the Community and amending Council Directive 16/61/EC (Directive 2003/87/EC)36. Being a member state of the EU, these policies also apply to Finland.37 This means that, compared to GHG of 2005, the 2020 GHG emissions
27 SopS 13/2005 and Act on the Use of the Kyoto Mechanisms (AUKM 109/2007).
28 SopS 76/2016
29 Also, the Art. 11 of the TFEU sets legal duty to consider environmental aspects in all policies of the EU.
This duty has an impact on national policies through legislative measures and via various governance instru-ments such as recommendations and financial instruinstru-ments. OJ 26.10.2012 C 326, p. 47–390.
30 According to Regulation (EU) No 525/2013 of the European Parliament and of the Council of 21 May 2013 on a mechanism for monitoring and reporting GHG emissions and for reporting other information at national and Union level relevant to climate change and repealing Decision No 280/2004/EC
these include Carbon dioxide (CO2), Methane (CH4), Nitrous Oxide (N2O), Hydrofluorocarbons (HFCs), Perfluorocarbons (PFCs) and Sulphur Lexafluoride (SF6). OJ 18.6.2013 L 165, p. 13–40.
31 In addition, the Finnish Environment Institute and the Natural Resource Institute Finland (LUKE) and VTT Technical Research Centre of Finland Ltd. provide information. Finland’s Seventh National Communication under the United Nations Framework Convention on Climate Change 2017, p. 19.
32 Finland’s Seventh National Communication under the United Nations Framework Convention on Climate Change 2017, p. 18.
33 Finland’s Seventh National Communication under the United Nations Framework Convention on Climate Change 2017, p. 59.
34 Programme of Prime Minister Antti Rinne’s Government 2019, p. 33.
35 There exists an energy climate road map. Energy and Climate Roadmap 2050 2014.
36 OJ 25.10.2003 L 275.
37 Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020. OJ 5.6.2009 L 140, p. 136–148.
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should be reduced 16 %.38 In addition, the Regulation (EU) 2018/842 of the European Par-liament and of the Council of 30May 2018 on binding annual GHG emission reductions by member states from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/201339 (Regulation (EU) 2018/842), the so called Effort Sharing Regulation (ESR) and Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their GHG emissions to meet the Community’s GHG emission reduction commit-ments up to 2020 (Decision No 406/2009/EC),40 set a binding target of 30 % reduction of GHG emissions in the non-ETS41 sector during 2021–2030.42 The non-ETS sector includes transport, buildings, non-ETS industry and waste.43 For Finland, the target set is 39 %.44 In addition, Finland has concluded that 20 % of all energy used for transport should be renew-able by 2020.45 Finland has been ambitious when it comes to emission reduction targets as well as to climate change. Besides of CCA (609/2015), Finland has regulated supportive legislation which aims at adaptive and mitigation efforts of climate change. These efforts include, for example (e.g.), the Act on Energy Performance Certification on Buildings (AEPCB 50/2013) and the Act on Consideration for the Energy and Environmental Impact of Vehicles in Public Procurement (ACEEIVPP 1509/2011).46
Climate law is both an international and transnational branch of legal science. It began to develop and specialize after the acceptance of the Bali Action Plan (BAP), the COP Decision
38 Smith et al. 2013, p. 1.
39 OJ 19.6.2018 L 156, p. 26–42
40 OJ 5.6.2009 L 140, p. 136–148
41 Emission Trading Scheme (ETS)
42 OJ 19.6.2018 L 156, p. 26–42
43 European Commission: Energy, Climate change, Environment: Climate Action: EU Action: Effort shar-ing: Member States' emission targets: Effort sharing 2021-2030: targets and flexibilities. 2019.
44 Proposed Targets and Access to new flexibilities for Finland. Maximum annual flexibility (as a % of 2005 emissions) -39%, One-off flexibility from Emissions Trading System to Effort Sharing Regulation 2%, NS Flexibility from land use sector to Effort Sharing Regulation 1.3% according to European Commission.
MEMO-16-2499 - Factsheet on the Commission's proposal on binding GHG emission reductions for Member States (2021–2030) 2016. European Commission 2016a.
45 HE (82/2014) vp. p. 18. The EU RES directive the target set is 10 %. Directive 2009/28/EC of the Euro-pean Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC. OJ 5.6.2009 L 140, p. 16–62.
46 Regulations that have an impact on climate measures include the Emissions Trading Act (ETA 311/2011), Flood Risk Management Act (FRMA 620/2010), Hoover Security Act (HSA, 994/2009), Land Use and Building Act (LUBA, 132/1999), The Act on the Sustainability of Biofuels and Bioliquids (ASBB, 393/2013), The Act on Energy Performance Certification on Buildings (AEPCB, 50/2013), the Waste Act (WA, 646/2011) and the Act on Consideration for the Energy and Environmental Impact of Vehicles in Pub-lic Procurement (ACEEIVPP 1509/2011).
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1/CP 13, in 2007.47 The BAP started a process that is still ongoing. It has approximated co-operation of states, accelerated the specialization of climate laws and also implying and ap-plying them to regional and national regulations.48 The climate regime has also challenged traditional definitions and principles of international law such as state centrism and accept-ability of relevant legal sources.49 International law has been traditionally applied between the states. While the role of states in international legal fields has given signals of diminish-ing; markets, NGOs and the role of cities have gained more significance.50 Currently, non-state actors, such as cities and municipalities, are also invited to contribute to the field of international law.51 In the context of global legal pluralism, the climate regime includes not only regulations, but also soft law instruments, which need to be researched in order to un-derstand climate measures from the legal perspective.52 Due to the unique characteristics of the climate regime and the national sovereignty of states and the subsidiarity principle53 of the EU, the extent that these non-state actors can contribute to climate change mitigation.
Adaptation depends on national and local legislation, governance structures and the legal role of municipal authorities.
The EU has set an obligation that environmental requirements must be integrated into all its legal fields including those outside of the environmental regulations.54 The practical imple-mentation of laws often takes place through local action. One of the local actions is public procurement. Every year, in the EU alone, the public sector uses, approximately 14 % of the the Gross Domestic Products (GDP) in public procurements by 250 000 authorities.55 In Finland, the total amount of the state budget is a little over 30 billion euros of which public
47 The UNFCCC. Report of the Conference of the Parties on its thirteenth session, held in Bali from the 3rd to the 15th of December 2007, Part Two: Action taken by the Conference of the Parties at its thirteenth session.
Decisions adopted by the Conference of the Parties. FCCC/CP/2007/6/Add.1 (The Bali Action Plan)
48 Kulovesi 2010, p. 420.
49 Kulovesi 2010, p. 425.
50 Mol Environmental Politics 2016. For example, when the US announced to decline from the Paris Agree-ment several city majors in the US announced, that they will stay in the agreeAgree-ment. Cities such as York, Chi-cago, San Francisco, and Washington informed that they will have own climate change plan.
51 COP Decision 1/CP 21 Adaptation of the Paris Agreeement, paras. 133–134.
52 Kulovesi 2010, p. 420.
53 Art. 5(3) The European Community (EC) added by the Treaty on European Union (TEU) states that “any action by the Community shall not go beyond what is necessary to achieve the objectives” of the Constitu-tion. The Art. 5(2) states that the Community should take “an action only if and in so far as the objectives of the proposed action cannot sufficiently be achieved by the Member States.” The control of subsidiarity is two-fold meaning that ex ante control is carried out by National Parliaments and ex post control by the Union Courts. OJ 26.10.2012 C 326, p. 13–390.
54 Art. 11 of the TFEU. OJ 26.10.2012 C 326, p. 47–390. Read more: Sjåfell – Wiesbrock 2017, p. 10.
55 European Commission: Cities 2018.
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purchasing takes up 32 % of all expenses.56 Additionally, the budget of municipalities is a little less than 50 billion euros, out of which the total amount of public purchasing expenses are 50 %.57 This means, that compared to the state authorities, Finnish municipality author-ities have more influence via public procurement by purchasing products, services and works.
By virtue of office public local authorities may potentially act as leaders in the transfor-mation process of a greener society. The green public procurement (GPP) is useful when consumption manners are transferred towards environmental-friendy products and ser-vices,58 since in the GPP concept these aspects are considered in every procurement deci-sion.59
The CCA (609/2015) in Finland recognizes and covers only state authorities.60 Additionally, Finnish legal system is dualist.61 It means that international law is not automatically part of national legislation but needs to be adequately implemented and ratified by the parliament through national law.62 Since the CCA (609/2015), the scope of which is to monitor the im-plementation of Paris Agreement and preparation of climate change policies, covers only state authorities, not municipal authorities, and does not oblige local municipal authorities and cities. By comparison, the EU law does not need to be implemented, if the legislation is exclusively under the competence the union.63 If it belongs to shared competence, as envi-ronmental measures mainly do, the implementation is applied via national law.64
56 Valovirta et al. 2017, p. 55.
57 Ibid.
58 European Commission: Environment: Green public procurement 2019.
59 Bala et al. Journal of Cleaner Production 2008. Also, in the EU the Green Paper on Integrated Product Pol-icy (IIP) published 2001 emphasized the matter. Environmental friendly criteria is a general concept includ-ing the climate criteria, which is the scope of this thesis.
60 The CCA (609/2015) sections 1, 2 and 4.
61 Ministry for Foreign affairs 2017, p. 11; 24; 70 and 79.
62 Finnish Constitution (FC 731/1999) sections 94 and 95.
63 Art. 4 of the TFEU. OJ 26.10.2012 C 326, p. 47–390.
64 Art. 5(3) The European Community (EC) added by the TEU states that “any action by the Community shall not go beyond what is necessary to achieve the objectives of the Constitution.” OJ 26.10.2012 C 326, p.
13–390. The EU may intervene only if it acts more efficiently compared to national and local levels. The principle of conferral. OJ 26.10.2012 C 326, p. 13–390. The power balance between the EU and the member states has throughout the EU history been in tension as well as between the EU institutions. In case 45/86 Commission versus Council (1987) ECLI:EU:C:1987:163 it was concluded that community measures must include the basis of law, which has led the institution in question to adopt them. Read more: Henkel, Berke-ley Journal of International Law 2002, p. 359–386.
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Due to the limited competence of the EU and according to the subsidiary principle, imple-mentation of climate change legislation and environmental legislation have national legal characters. Similarly, the structure of governance varies between the EU member states. In Finland municipalities are legally autonomous entities governed by public law.65 There is a total of 311 municipalities, only nine of them exceeding 100 000 habitants.66 According to the Constitution of Finland (CF 731/1999) section 121 subsection 2 municipalities are bound to do tasks, which are legally regulated.67 It has been calculated that municipalities have 535 legally binding tasks.68 Local municipal authorities are responsible for provision of public services.69 Tasks of municipalities include healthcare, social services, education, infrastruc-ture and land use, economic development of the municipality, and limited law enforcement.70 Tasks delivered to the municipalities are regulated by the parliament. The parliament also regulates the tasks of municipalities indirectly via legislative reforms of substantive laws.
The CCA (609/2015) does not include municipal authorities. In practice it means, that there is no legally binding obligation to take national climate targets into consideration in public procurement processes as such by cities. However, the law is always interpreted while mak-ing decisions and the aim of the whole legal system is to be coherent. This study introduces existing relevant legislation around the climate criteria in public procurement context. By climate criteria I refer to measures, which aim for mitigation or adaptation of climate change.
These measures vary from technical specifications to choosing the right kind of procedure in public procurement related to the certain procurement subject.
In the framework of the international climate regime, internationally concluded emission reduction targets and the national CCA (609/2015), it is interesting to study how climate criteria operates at local level in Finland in the public procurement legal context. Addition-ally, Finland is an interesting example since, as an EU member state, it needs to follow the
65 The Finnish Municipal Act (MA 410/2015) section 7.
66 Kuntaliitto: Kaupunkien ja kuntien lukumäärät ja väestötiedot. 3.4.2019.359
67 The Local Government Act ( LGA 410/2015) section 7 subsection 1.
68 Ministry of Finance 2013, p. 17.
69 The Local Government Act ( LGA 410/2015) section 7 subsection 1.
70 Legal tasks are regulated e.g. in Basic Education Act (BEA 628/1998) section 4 and LUBA (132/1999) section 20.
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EU legislation and commonly agreed upon wider political targets. Furthermore, Finland has its own ambitious carbon neutral country target.71
This thesis focuses on implementing climate criteria in the context of GPP at the local level.
All public entities procure products, public services or public works. GPP means that envi-ronmentally friendly criteria are included in procurement process.72 Study, which is con-nected to GPP and to general scope of this research, has been conducted in Australia. The Australian study focused on challenges to implementing green procurement to the public healthcare sector.73 GPP standards have been researched from the point of view of a carbon footprint in a case study in the service sector. 74 Several research articles consider public procurement in general in China.75 In the context of Nordic countries, there exists research
All public entities procure products, public services or public works. GPP means that envi-ronmentally friendly criteria are included in procurement process.72 Study, which is con-nected to GPP and to general scope of this research, has been conducted in Australia. The Australian study focused on challenges to implementing green procurement to the public healthcare sector.73 GPP standards have been researched from the point of view of a carbon footprint in a case study in the service sector. 74 Several research articles consider public procurement in general in China.75 In the context of Nordic countries, there exists research