Less haste, more speed: The European Parliament must support renewables *and* nature

When the EU wants to do renewable energy, it can. It’s been estimated that almost 40 gigawatts of solar photovoltaics will be installed across the European Union by the end of 2022. This compares to an already record-breaking 27 gigawatts in 2021.

But there are still barriers. Hungary and Poland have spatial planning restrictions so tight that onshore wind farms are effectively outlawed, while Estonia was singled out in an early 2022 analysis as having a particular lack of staff to deal with permit-granting, leading to excessive delays. Bulgaria’s unclear incentives scheme and Romania’s frequent changes of its renewables law were also identified as issues affecting renewables development.

Reading through the European Commission’s proposed amendments to the Renewable Energy Directive under the REPowerEU package though, one gets the impression that EU environmental law is the main problem. It’s not. The Commission has panicked and succumbed to industry pressure to push through a rushed and poorly thought-out proposal that may cause more problems than it solves.

Go-to or acceleration areas

Under the Commission’s plans, each Member State is to identify ‘go-to areas’ – or ‘acceleration areas’ as some prefer to call them – where renewable energy development is considered particularly desirable. These should include e.g. built-up areas or degraded land. Projects in these areas would then be subject to lighter and faster environmental permitting processes.

As spatial planning is a clear problem in some EU Member States, it does make sense to ensure that a reasonable amount of land is allocated for much-needed renewables development, but this will not be a quick process if it is based on proper scientific research and sensitivity mapping.

The Commission’s proposal allows two years for this. This might sound a lot, but since not all countries have sufficiently mapped their biodiversity and that a strategic environmental assessment, including public consultation, needs to be carried out before adoption, adding another year seems more realistic.

Another issue is which technologies should be included in such areas. The Commission’s proposal did at least exclude biomass combustion, but not hydropower. We have serious concerns about loosening environmental requirements for any technologies (see below), but due to their very damaging impacts, forest biomass and hydropower are particularly unsuitable for exemptions in permitting processes.

Environmental safeguards under threat

According to the Commission’s proposal, projects in go-to areas would not need an environmental impact assessment (EIA). And where they may have significant impacts on Natura 2000 sites, they would not need to undergo appropriate assessments as required by the Habitats Directive, either.

This is panic-mode decision-making. The EIA Directive and Habitats Directives are already flexible enough to ensure that benign projects, including many solar projects and some wind projects, are not subject to unnecessary procedures. So the main change would be to let more damaging projects in go-to areas off the EIA hook as well.

The Parliament’s draft report does include a proposal to ensure that small hydropower plants up to 10 megawatts would have to undergo an EIA, but this is not enough. It hardly makes sense to exempt large hydropower. There seems to be an assumption that go-to areas will mostly be on brownfield sites, but if they are to ensure the countries meet their 2030 targets, they will need to go far beyond these.

Legal chaos and damage to Natura 2000 sites

The emphasis in the proposal is supposed to be on low-impact go-to areas, but the Commission is needlessly putting Natura 2000 sites and pristine rivers at risk by introducing a presumption that all renewable energy projects are of ‘overriding public interest.’

A similar, but not identical, provision is also included in the emergency regulation on renewables permitting, whose text was agreed on 24 November and which may also be formally adopted this week.

If a project is likely to have a significant impact on a Natura 2000 site, it has to undergo an appropriate assessment under the Habitats Directive. Currently, if it is confirmed that the project would ‘adversely affect the integrity of the site concerned’, it generally should not go ahead. There are exceptions, however, for projects where there is no alternative and which are of ‘overriding public interest’.

The rules are stricter in cases where the site hosts a priority natural habitat type and/or a priority species – the latter including wolves, bears, or sturgeon, for example. In such cases, generally only protecting human health or public safety can be cited as grounds to declare a project of ‘overriding public interest’.

As a result, some renewable projects can be built in Natura 2000 areas, and some cannot. This must always be assessed case by case.

Yet the Commission has proposed that renewable energy plants and related grid and storage facilities are to be ‘presumed as being in the overriding public interest and serving public health and safety’.

The appropriate assessment will still have to take place, but its conclusions will be largely pre-defined. Although in theory it will still be possible to argue that a project is in fact not of overriding public interest and/or that there are alternatives, it seems unlikely that the permitting authorities will take this on board. It is not even clear what will be achieved, as Natura 2000 areas are unlikely to offer many quick opportunities for renewables development and legal battles on individual projects will still rage on.

The situation is even more confusing because the emergency renewables permitting regulation mentioned above contains a similar — but not identical – provision. And Member States are allowed to apply it to projects whose permitting starts after the regulation comes into force, but to also those already undergoing permitting, where a final decision has not yet been taken. How this is going to play out in reality is anyone’s guess, because it appears that governments are allowed to cherry pick which projects they will apply this provision to during the 18 months that the regulation will be in force.

It may be too late to stop this provision in the emergency regulation, but the Parliament needs to at least stop it in the Directive. In the coming 18 months we expect substantial confusion stemming from the regulation. After opening this Pandora’s box, the least the Commission can now do is promptly issue some guidance on how it should be applied.

Public consultation on the project level is essential

The EIA and appropriate assessment processes also require public consultations for projects which may have a significant environmental impact, and they guarantee the public the right to challenge the relevant decisions in court. So by exempting projects in go-to areas from EIAs and taking the teeth out of the appropriate assessment, the Commission’s proposals are likely to breach the Aarhus Convention and are almost certain to be counterproductive.

Wind, hydropower and other renewable energy sources have already attracted public opposition, and there is nothing more guaranteed to annoy people than the feeling that something is being imposed on them. The process of deciding on go-to areas is supposed to include public consultation but cannot be a substitute for project-level processes.

Squeezing deadlines is not the answer – other barriers need attention

The approach taken by the Commission in its proposals has been to squeeze the deadlines in the environmental permitting process to a point where meaningful assessment and public consultation becomes impossible. The Parliament must resist this tendency and resolve other barriers – such as those mentioned above – instead.

The Commission’s REPowerEU proposals do address the spatial planning issues. And the Parliament has taken on board other issues such as increasing administrative capacity to process permitting applications. But it has so far shown few signs of understanding the importance of maintaining existing environmental safeguards.

Unless the European Parliament stands up for the principles of the European Green Deal this week by tackling the climate and biodiversity crises together, we can expect to see increased legal uncertainty for developers, more public opposition to renewables slowing down deployment, and more damage to nature.