Local Leadership and Its Limits in the Deployment of Sustainable Mobility Policies

The Sustainable Development Goals on which Agenda 2030 is based are 17 objectives and 169 targets proposed as a continuation of the Millennium Development Goals previously set up by the United Nations. They were approved by the United Nations General Assembly on 25 September 2015, specified in United Nations General Assembly, ‘Transforming Our World: the 2030 Agenda for Sustainable Development’ (25 September 2015) A/RES/70/1, which came into force on 1 January 2016.

The United Nations Framework Convention on Climate Change (UNFCCC) was adopted in 1992 and has undergone several revisions that have gradually incorporated stricter obligations for the parties through subsequent agreements. The last of these, the Paris Agreement, establishes concrete measures for the reduction of greenhouse gas emissions and has replaced, since 2020, the well-known Kyoto Protocol, which initiated the path of multinational agreements within the framework of the UNFCCC for the establishment of concrete emission reduction objectives that are obligatory for the signatory parties.

United Nations, New Urban Agenda (United Nations 2017). On this document and its effects on the ‘right to the city’, Juli Ponce Solé, ‘El Derecho a la Ciudad, Gobernanza y la Nueva Agenda Urbana’, in Juli Ponce Solé, Wellington Migliari and Oscar Capdeferro (eds), El Derecho, la Ciudad y la Vivienda en la Nueva Concepción del Desarrollo Urbano (Atelier 2019) 115-151.

The underlying notion of the document, which will be further developed in the specific proclamations of the UN (n 4) paras 113-117 is quite clear: mobility and transportation are as essential today for any human settlement to enable its inhabitants to carry out their activities as they have been historically—and still are—such as the essential resources of guaranteeing universal access to drinking water, the existence of an adequate sanitation network, ensuring food security, providing basic education or monitoring air quality, among others. Therefore, they must be guaranteed by the authorities, at least, with the same standards and degree of legal exigency with which we have historically proclaimed and guaranteed those other rights. It is also important to note that in the document, and immediately following this statement, the importance of transport and mobility is explicitly linked to social inclusion considerations. Thus, s 13.f of the NUA establishes that public authorities must carry out mobility planning that also takes into account considerations of age and gender, thus guaranteeing the availability of transportation systems capable of effectively linking all types of people, places, goods, services and economic opportunities and offering the possibility of carrying out a normal social life, as well as the proper deployment of economic activities to all citizens. Thus, the idea that the promotion of equitable and affordable access to sustainable transport services should ensure the specific needs associated with disadvantaged groups (women, children and youth, older persons and persons with disabilities, migrants, indigenous peoples and local communities, as well as any other group in a situation of vulnerability, ibid. para 34; these vulnerable groups are also taken into account in relation to security in ibid. para 113) is explicitly strengthened and reinforced (e.g. for persons with disabilities, ibid. para 36); for informal and poor settlements (see ibid. para 54). Similarly, the idea of social cohesion and the role that modern and accessible mobility and modern means of transport can play in greater productivity, social, economic and territorial cohesion, aligned with security and environmental sustainability (ibid. para 50), is also linked to these equity considerations that bind all public authorities.

Diana Reckien and others, ‘How are Cities Planning to Respond to Climate Change? Assessment of Local Climate Plans From 885 Cities in the EU-28’ (2018) 191 Journal of Cleaner Production 207.

The phenomenon of the collaborative economy has already been studied in great depth. A selection of recent works that give an idea of the implications of this includes Ming Hu (ed), Sharing Economy. Making Supply Meet Demand (Springer 2019) for the study of the economic rationale behind the model and its main effects in terms of efficiency and externalities; Nestor M Davidson, Michèle Finck and John J Infranca (eds), The Cambridge Handbook of the Sharing Economy (Cambridge University Press 2018) for the study of the impact of the collaborative economy on various markets and the legal framework of the phenomenon in its various manifestations and repercussions; and Duncan McLaren and Julian Agyeman, Sharing Cities. A Case for Truly Smart and Sustainable Cities (MIT Press 2015) for the more concrete effects of the sharing economy on cities, with interesting case studies. Specifically, in relation to the effects of the sharing economy on urban mobility, Andrés Boix Palop, Ana María De la Encarnación and Gabriel Doménech Pascual (eds), La Regulación del Transporte Colaborativo (Aranzadi - Thomson Reuters 2017).

Parliament and Council Directive (EC) of 21 May 2008 on ambient air quality and cleaner air for Europe [2008] OJ L 152, 1 (Air Quality Directive).

The ECJ, in its judgment of 13 December 2018, in joined cases: Case T-339/16 Commune de Paris v Commission EU:T:2018:927, Case T-352/16 Commune de Bruxelles v Commission EU:T:2018:927 and Case T-391/16 Commune de Madrid v Commission EU:T:2018:927 agrees with these municipalities on the understanding that the Commission could not change the emission thresholds already laid down in the Euro 5 and Euro 6 standards with the practical effect of increasing the permitted margins and that the municipalities of the cities concerned were therefore not obliged to comply with the new standard set by the Commission in their traffic regulations and the restrictions they had introduced for the circulation of certain types of vehicles. Environmental, competence and legal security considerations are intermingled in an analysis that ends up notably expanding the capacity of municipalities to establish effective restrictions on the use of certain types of vehicles.

The European Commission, on the basis of the aforementioned Air Quality Directive (n 9) and its specific thresholds and limits (which, although they have varied and adapted, have traditionally been established in Annexes I to XI), has taken action against several Member States in recent years on these issues (Germany, France, Hungary, Italy, the United Kingdom and Romania) on the grounds that their national, regional and local regulations were not achieving a situation in accordance with the established limits. More recently, action has also been taken against Spain following recent changes and amendments made to previous plans to reduce air pollution in cities such as Madrid. See, in this regard, Jaime Doreste ‘The European Commission has run out of patience with Spain’ El País (25 July 2019), <http://​agendapublica.​elpais.​com/​a-la-comision-europea-se-le-ha-acabado-la-paciencia-con-espana/​> accessed 19 December 2019.

A chronological list of the various local, state and federal court decisions and regulations can be found at Bundesministerium für Umwelt, Naturschutz und nukleare Sicherheit, ‘Chronologie zu Diesel und Luftreinhaltung’ (BMU, 15 March 2018) <www.​bmu.​de/​themen/​luft-laerm-verkehr/​luftreinhaltung/​diesel-und-luftreinhaltung> accessed 15 January 2019.

Following a series of decisions at the local or regional level in Länder such as North Rhine-Westphalia or Baden-Württemberg, the possibility of introducing such total bans on the use of such vehicles in certain urban areas has been confirmed by the Federal Administrative Court (Bundesverwaltungsgericht, judgment of 27 February 2018, 7 C 26.16 and 7 C 30.17).

German Federal Government, faced with the possibility of diesel bans in more than 50 German cities (Berlin, Köln and Munich among them) as a result of those judicial decisions, proposed an amendment to the German federal emissions law in to limit local government capacity to impose such prohibitions when emissions limits were only slightly exceeded, which was adopted by the German parliament. Under the amended legislation, which was passed by the German parliament this spring, driving bans would only be considered in cities where nitrogen oxide levels were exceeded by 50 μg/m3 or more. But shortly after, the Mannheim Administrative Court reduced this margin to only 25 μg/m3. This particular ‘dialogue’ between Courts and government is expected to be continued and reinforces the idea that nowadays the rules in the matter established by the European Union or national regulators may not be set down on stone and it is possible to challenge them before the courts.

Josef Cyrys, Jianwei Gu and Jens Soentgen, ‘Analyse der Wirksamkeit von Umweltzonen in drei deutschen Städten: Berlin, München und Augsburg’ (Bundesministeriums für Umwelt 2017) <www.​umweltbundesamt.​de/​sites/​default/​files/​medien/​1410/​publikationen/​2017-06-01_​texte_​46-2017_​umweltzonenwirks​amkeit.​pdf> accessed 15 January 2020.

Decision NL:HR:2019:2006 of the Dutch Supreme Court (ECLI:NL:HR:2019:2006) is interesting because it not only questions the decision of the Dutch government but also that of the European Union, which had set a reduction target for the Netherlands of 20% for emissions by 2020 (compared to 1990). After a series of appeals by an environmental association Urgenda in The Hague and a first ruling in its favour in 2015, confirmed on appeal, the Supreme Court finally agreed with these previous rulings and established a jurisdictional obligation to further reduce emissions (up to 25% with the same benchmark). It does so directly on the basis of international instruments and the obligations that the court considers to be directly derived for the Dutch State in the area of health protection and the right to a clean environment for citizens from the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The alleged discretion of the various executives who had determined other thresholds is reviewed and controlled by the court, which bases its decision on various scientific studies on the insufficiency of current efforts to sufficiently reduce emissions.

Christopher R Knittel and Ryan Sandler, ‘The Welfare Impact of Indirect Pigouvian Taxation: Evidence from Transportation’ (2013) National Bureau of Economic Research Working Paper Series 18849, 20-23; Jonathan S Masur and Eric A Posner, ‘Towards a Pigouvian State’ (2015) 164 University of Pennsylvania Law Review 93.

Roxana J Javid, Ali Nejat and Katharine Hayhoe, ‘Selection of CO2 Mitigation Strategies for Road Transportation in the United States Using Multi-criteria Approach’ (2014) 38 Renewable and Sustainable Energy Reviews 960.

Inge Mayeres and Stef Proost, ‘Congested Roads and General Equilibrium Pigouvian Tax Solutions’, in Jeroen CJM van den Bergh, Peter Nijkamp and Piet Rietveld (eds) Recent Advances in Spatial Equilibrium Modelling (Springer 1996) 221-242; see also Danielle Spiegel-Feld, ‘Reducing the Cost of Free Parking: How Some American Cities are Decreasing Parking Subsidies to Increase Sustainable Mobility’ in Antonio Fortes Martín (ed) Movilidad Urbana Sostenible y Acción Administrativa (Thomson Reuters Aranzadi 2019) 293-302.

Cities such as Stockholm, Milan, Hong Kong and Singapore, as well as New York, San Francisco and especially Beijing, in addition to London, have had experiences in this regard. For more information, see Andrés Boix Palop, ‘The Challenges of Urban Mobility Regulation and the New Urban Agenda’ in Nestor M. Davidson and Greta Taawari (eds), Law and the New Urban Agenda (Routledge 2020) (forthcoming) previous draft available at <https://​papers.​ssrn.​com/​sol3/​papers.​cfm?​abstract_​id=​3414970> accessed 10 January 2020.

Jun Yang, Avralt-Od Purevjav and Shanjun Li, ‘The Marginal Cost of Traffic Congestion and Road Pricing: Evidence from a Natural Experiment in Beijing’ (2020) 12(1) American Economic Journal: Economic Policy 418 <https://​doi.​org/​10.​1257/​pol.​20170195> accessed 12 January 2020.

From 1 March 2020, all public transport in Luxembourg City will be free of charge. See the explanation on the official website of Luxembourg City: Ville de Luxembourg, ‘Introduction of free public transport in Luxembourg, from 1 March 2020’ (28 February 2019) <https://​www.​vdl.​lu/​en/​news/​introduction-free-public-transport-luxembourg-1-march-2020> accessed 15 January 2020.

See note 7.

Stéphane Bracq, ‘Droit communautaire materiel et qualification juridique: le financement des obligations de service public au coeur de la tourmente (à propos de la décision: CJCE 24 juill. 2003, Altmark Trans GmbH, aff. C-280/00)’ (2004) 40(1) Révue trimestrielle de Droit Européen 33.

Katrina M Wyman, ‘Taxi regulation in the age of Uber’ (2017) 20 Legislation and Public Policy 9.

Christopher Koopman, Matthew Mitchell and Adam Thierer, ‘The Sharing Economy and Consumer Protection Regulation: The case for Policy Change’ (2015) 8(2) Journal of Business, Entrepreneurship and the Law 530-545.

On congestion problems in San Francisco or New York, respectively, and their effects on urban mobility policies and regulatory options for digitally mediated transport, Gregory D Erhardt and others, ‘Do transportation network companies decrease or increase congestion’ (2019) 5(5) Science Advances <https://​advances.​sciencemag.​org/​content/​5/​5/​eaau2670.​full> accessed 21 December 2019; and Natasha Bhatia, ‘The Second Avenue Subway’s Effect on Ride-Hail, Rideshare, and Taxi Usage in New York City’ (2019) <https://​ssrn.​com/​abstract=​3258592 or https://​doi.​org/​10.​2139/​ssrn.​3258592> accessed 21 December 2019.

In June 2019, New York City announced the extension of the quantitative limitation and the decision to make these quotas permanent. See the city’s own statement on this subject: Official Website of the City of New York, ‘Mayor de Blasio Announces Extending FHV Caps to Protect Hardworking Drivers, Increase Their Pay & Reduce Cruising by Empty Cars in Manhattan’ (12 June 2019) <www1.​nyc.​gov/​office-of-the-mayor/​news/​301-19/​mayor-de-blasio-extending-fhv-caps-protect-hardworking-drivers-increase-their-pay-#/​0> accessed 9 January 2020.

Troy R Hawkins and others, ‘Comparative Environmental life cycle assessment of conventional and electric vehicles’ (2012) 17(1) Journal of Industrial Ecology 53.

It should be noted, moreover, and as is obvious, that for public transportation most of the network economic effects also apply, where the effective density of the network is key to enabling the platform to be competitive. Conversely, the risk of losing some ‘transactions’, users and connections should not be underestimated: once a certain threshold is reached, the mere existence of the entire network as a viable alternative may be at risk if users are lost due to the emergence of very competitive private services, which in turn may generate potential problems of congestion or social equity. See Orly Lobel, ‘Coase and the Platform Economy’, in Nestor M Davidson, Michèle Finck and John J Infranca (eds), The Cambridge Handbook of the Sharing Economy (Cambridge University Press 2018) 71-74; Yemi Adediji, Liam Donaldson and Murtaza Haider, ‘Regulating Vehicles-for-Hire in Toronto: a Review of the Regulatory Frameworks’ (Ryerson Urban Analytics Institute 2019) <https://​urbananalyticsin​stitute.​com/​wp-content/​uploads/​2019/​06/​UAI_​VFH_​Report_​June-2019.​pdf> accessed 9 January 2020.

UN (n 4) para 50.

Sofia Ranchordás, ‘Innovation Experimentalism in the Age of the Sharing Economy’ (2015) 19(4) Lewis & Clark Law Review 871.