It might seem counterintuitive for organisations that promote a sustainable energy transition to challenge EU initiatives to speed up renewable energy deployment. But due to undemocratic decisions that undermine environmental safeguards and public participation, that’s what we’ve been compelled to do.
Pippa Gallop, Southeast Europe Energy Policy Officer | 22 September 2023
In December 2022, the Council of the European Union adopted a fast-track regulation to speed up renewables deployment. Although it gives solar and heat pumps a useful boost, it also undermines EU environmental and public consultation rules by the back door.
We therefore asked the Council to carry out an internal review of the regulation, but it refused. Together with ÖKOBÜRO, we are therefore challenging this decision at the European Court of Justice.
Renewables acceleration is crucial – as are public participation and environmental safeguards
A ramp-up of sustainable renewables is much needed, to tackle both climate change and dependence on Russian gas. The EU is making progress, but clearly needs to do more. It’s been estimated that 41.4 gigawatts of solar photovoltaics were installed across the EU in 2022 – an increase of 47 per cent compared to 2021.
But this has to be properly balanced with nature protection. 81 per cent of the EU’s habitats are in a poor or bad condition, and renewables are not automatically sustainable: when inappropriately sited, any technology can cause harm. Croatia, for example, is currently subject to infringement proceedings for failing to properly assess the impacts of wind farms on Natura 2000 protected areas, and the Malko Tarnovo photovoltaic plant was built in the Strandzha Nature Park in Bulgaria on a drained wetland!
The EU’s definition of renewable also includes inherently high-impact energy sources like hydropower and – under certain conditions – forest biomass.
It’s also been proven again and again, that the more the public feels excluded from decision-making on new infrastructure, the more they reject it. Studies on barriers to renewables therefore underline the need to improve public participation, not undermine it.
Environmental safeguards undermined by the back door
EU environmental law helps to find a balance between our various needs, making sure that in tackling the climate crisis, we don’t create other problems such as destroying natural areas. It also guarantees the right to public participation in environmental decision-making, which is enshrined in the Aarhus Convention.
In May 2022, the European Commission presented its proposals to update the Renewable Energy Directive as part of the REPowerEU initiative, which in themselves undermined environmental legislation. But the Council did not want to wait for the legislative process to be completed, and on 22 December, adopted Regulation (EU) 2022/2577, without any input from the public or the European Parliament.
It used an emergency legal clause to do so – Article 122 of the Treaty on the Functioning of the European Union. This is meant to allow the Council to take economic measures if severe supply difficulties arise, notably in the energy sector.
In our view, this Article cannot be used to change environmental legislation. The Treaty is quite clear that most environmental rules must be adopted using the usual legislative procedure involving the European Parliament. This makes sense, otherwise the Council can undermine any piece of legislation it doesn’t like.
Damaging and counterproductive changes
The regulation not only undermines environmental law and public participation, but in our opinion it won’t significantly speed up permitting processes. It creates clashes with existing environmental safeguards that are likely to increase legal uncertainty and court challenges.
‘Overriding public interest’
The regulation introduces a confusing ‘presumption’ that renewable energy projects are of ‘overriding public interest’. Most such projects do not need this label anyway, because they would not cause significant damage to Natura 2000 sites or high-quality rivers. In other words, this provision only helps the most damaging projects in the most sensitive areas to get approval.
Such exceptions were already allowed under the Birds, Habitats and Water Framework directives after a careful case-by-case assessment, but the point is they should be exactly that – exceptions. This rule turns the concept on its head and makes exceptions into the rule. It also encourages Member States to approve projects in the EU’s most environmentally sensitive areas, contrary to the logic of using built-up areas first.
The irony is that it is unlikely that the assessment process will be speeded up. Assessments still have to be carried out for projects significantly harming Natura 2000 sites or high-quality rivers and the authorities also still have to ensure that other conditions are fulfilled, such as the absence of suitable alternatives. So the main change is that this ‘presumption’ stacks the cards in favour of investors and makes public consultations on exceptions unlikely to be meaningful.
Exemptions from environmental assessments
The Regulation also allows projects situated in designated renewables areas to be exempted from carrying out environmental impact assessments (EIA), as long as the plans for those areas have been subject to a strategic environmental assessment (SEA).
Again, many renewable projects anyway do not need EIAs. Such an assessment is needed only if they may cause significant environmental damage. So this provision is also helping more damaging projects to get approved more quickly.
In many Member States, the EIA process is also the only chance the public has to have its say on individual renewables projects, so by skipping the environmental assessment, the public is also denied its right to be consulted.
The regulation doesn’t explain how to guarantee compliance with the Aarhus Convention if no public consultation is carried out on the EIA. SEAs are a completely different concept, and are carried out for plans or programmes. In no way can they replace EIAs – that’s why there are two different directives, serving different purposes.
Without EIA-related public consultations, governments will have to think up some other method of public participation, so it is not clear how this will save time. We are afraid that in reality, the public will be shut out of decision-making, increasing public opposition and leading to lengthy lawsuits, rather than speeding up the process.
Some low-hanging fruits have still not been picked
While we all agree on the need to reduce needless delays in project development processes, this is not the same as weakening environmental standards. There is no excuse for pitting climate action against biodiversity. Both are crucial for our future, and they have to be tackled together.
What makes the emergency regulation’s back-door attack on nature all the more frustrating, is that many low-impact opportunities for renewables still have not been utilised. As well as measures to increase energy efficiency, rooftop and brownfield solar and heat pumps in particular are no-regrets investments that should be top priority. Suitably-sited solar and wind, and low-emissions geothermal, are also key.
The European Commission only published a Solar Strategy last year, and surprisingly, it only expects to make solar on new residential buildings mandatory by 2029. France has introduced a law requiring car parks with 80 or more spaces to be covered with solar panels within five years – but why is this not required across the EU?
Pandora’s box is already open
As civil society groups warned while the emergency regulation was being developed, not only is it harmful in its own right, but it sets an unacceptable precedent. The updated Renewable Energy Directive recently adopted by the European Parliament also contains similar provisions, as does the proposed Critical Raw Materials Act, which would allow so-called ‘strategic’ mining projects to be considered of overriding public interest.
It is much, much harder to recover safeguards than to lose them, but we cannot stand idly by. We need to stop this dismantling of environmental law using all the tools at our disposal, and our lawsuit is but one step in this long and difficult fight.
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