USCA Case #23-7031 Document #2055844 Filed: 05/22/2024 Page 1 of 3
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`SARAH M. HARRIS
`(202) 434-5599
`sharris@wc.com
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`Via Electronic Case Filing
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`May 22, 2024
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`Mark J. Langer
`Clerk, U.S. Court of Appeals for the District of Columbia Circuit
`E. Barrett Prettyman U.S. Courthouse
`333 Constitution Avenue NW, Room 5205
`Washington, DC 20001
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`Re:
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`Rule 28(j) Response in NextEra Energy Global Holdings B.V. v. Kingdom of Spain,
`No. 23-7031, and 9REN Holding S.À.R.L. v. Kingdom of Spain, No. 23-7032
`(argued February 28, 2024 before Pillard, Pan, and Rogers, JJ.)
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`Dear Mr. Langer:
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`I write in response to appellees’ May 20 letter discussing Spain’s withdrawal from the
`Energy Charter Treaty.
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`Spain and the EU have legally committed themselves to achieving carbon neutrality by
`2050. Regulation 2021/1119, 2021 O.J. (L 243) 1; Climate Change and Energy Transition Act
`7/2021 (Spain). As the European Commission has observed, the Energy Charter Treaty—a 1990s
`agreement to develop fossil-fuel resources in the former Soviet bloc—“is no longer compatible
`with the EU’s enhanced climate ambition.” Eur. Comm’n, European Commission Proposes a
`the Energy Charter Treaty
`(July 7, 2023),
`Coordinated EU Withdrawal
`from
`https://tinyurl.com/zfr9986e. The Treaty, for example, commits signatories “to facilitate the
`Transit of Energy Materials and Products,” including coal, natural gas, and crude oil. Energy
`Charter Treaty art. 7(1), annex EM. And signatories must eliminate “obstacles to the transfer of
`technology … and related equipment and services” to exploit fossil fuels. Id. art. 8(2), annex EM.
`Those provisions are fundamentally incompatible with Spain and the EU’s climate-change goals.
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`Accordingly, seven other EU members1 have withdrawn from the Treaty and the EU itself
`is in the process of doing so. See Int’l Energy Charter, Written Notification of Withdrawal (Mar.
`7, 2024), https://tinyurl.com/bdfn74f4; Eur. Parliament Consent, P9_TA(2024)0335. As Blasket
`previously observed, Spain has long contemplated withdrawing. Blasket Reply Br. 17 n.3. So
`have several other EU members. Kate Abnett, EU to Propose Exit from Energy Charter Treaty
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`1 France, Germany, Italy, Luxembourg, Poland, Portugal, and Slovenia.
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`USCA Case #23-7031 Document #2055844 Filed: 05/22/2024 Page 2 of 3
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`May 22, 2024
`Page 2
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`Over Climate Concerns, Reuters (June 29, 2023), https://tinyurl.com/3epeckn6. The May 9
`bulletin appellees now highlight simply formalizes Spain’s process.
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`Spain’s sovereign pursuit of its climate policy does not concede that Spain “consented …
`to arbitrate” here. Contra Letter 2. Spain has never argued that it is not “bound by the ECT.”
`Contra Letter 2. The Energy Charter Treaty contains numerous generally applicable provisions,
`like those cited above, that are incompatible with Spain’s climate goals. As for arbitration, Spain
`stood “ready, willing, and able to arbitrate with investors” from the Energy Charter Treaty’s 24
`non-EU signatories. Spain Br. 42. Spain’s withdrawal in no way suggests that Spain could or did
`consent to intra-EU arbitration.
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`Sincerely,
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`/s/ Sarah M. Harris
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`Sarah M. Harris
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`USCA Case #23-7031 Document #2055844 Filed: 05/22/2024 Page 3 of 3
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`CERTIFICATE OF SERVICE
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`I, Sarah M. Harris, counsel for the Kingdom of Spain and a member of the Bar of this
`Court, certify that, on May 22, 2024, a copy of the foregoing letter was filed with the Clerk and
`served on the parties through the Court’s electronic filing system. I further certify that all parties
`required to be served have been served.
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`/s/ Sarah M. Harris
`Sarah M. Harris
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