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CLEER/EEL Upcoming Conference: “EU environmental norms and third countries: the EU as a global role model?” T.M.C. Asser Instituut, The Hague, Friday 19 April 2013
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Case Law
Portugal failed to fulfil its pollution control obligations for certain years
Case C-34/11, European Commission v. Portuguese Republic, 15 November 2012
Portugal was accused of failing to ensure the observance of PM10 daily limit values aimed at protecting human health and set by art. 13 of Directive 2008/50/EC regarding ambient air quality and cleaner air for Europe. The Commission asked the Court to declare that Portugal thus violated EU law.
The Commission argued that its action does not aim at a past situation but at Portugal’s current failure to fulfil its obligations, while noting that it has “no legal interest” in this case for a court ruling regarding past events since it would “gain no advantage” from such a judgement (para 36).
The ECJ is definitely not amused. The reasoned opinion and action need to set out coherently and precisely the complaints so that the Court can appreciate the extent of an alleged infringement of EU law and determine whether there has been a breach of obligations (para 43). The Commission does specify where infringements occurred, but failed to define the years of the infringements. Under these circumstances, the content of the Commission’s application lacks “coherence, clarity and precision” (para 47). By not providing details for the exact infringing period and relevant evidence, and “laconically stating that it has no legal interest in this case in seeking from the Court a ruling on past facts given that it gains no advantage” from such a judgment, the Commission “manifestly fails to have regard to” of obligations for the Court and itself, and “fails to put the Court in a position to rule on these infringement proceedings” (para 48).
Where the Commission had specified failures to comply with limit values in the period 2005-2007, the ECJ declared the action admissible only for these years. Portugal was found to have been violating its obligations under art. 5(1) of Directive 1999/30 (an instrument that was repealed by Directive 2008/50) for that period. As for the period after 2007, the ECJ found that the action does not satisfy the requirements of clarity and precision and accordingly that part of the action is dismissed.
Costs of judicial proceedings in environmental matters
Opinion Advocate General Kokott, C-260/11, The Queen, on the application of David Edwards and another v Environment Agency and Others, 18 October 2012
The opinion concerns the costs of national judicial proceedings in environmental matters. The proceedings in the case at hand relate to an application for judicial review of a decision by the UK Environment Agency to issue a permit for the operation of a cement mill. The application was dismissed at first and second instance. The House of Lords issued an order for the costs. The dispute on the costs is now before the Supreme Court that referred the matter to the European Court of Justice as to the interpretation of the Aarhus Convention, the Environmental Impact Assessment (EIA) Directive and the Integrated Pollution Prevention and Control (IPPC) Directive .
Based on art. 9(4) Aarhus Convention, art. 10a EIA Directive and art. 15a IPPC Directive, the Advocate General (AG) found that in principle it rests with the Member States to stipulate ways to avoid the implementation of judicial costs that could discourage the conduct of the case. Excessive court costs should be reduced together with judicial costs, so that citizens are not discouraged from seeking justice. In the case of large-scale projects that relate to environmental issues, “reasonable but prohibitive costs” are possible due to the size and expenses of the project. In examining whether costs of proceedings are prohibitive, the AG submits that “account must be taken of the objective and subjective circumstances of the case, with the aim of enabling wide access to justice. The insufficient financial capacity of the claimant may not constitute an obstacle to proceedings. It is necessary always, hence including when determining the costs which can be expected of claimants having capacity to pay, to take due account of the public interest in environmental protection in the case at issue.”
The AG also refers to the two-fold interest in environmental protection as set out in the Aarhus Convention: protection of individual rights and of public interest. The latter interest justifies the establishment of non-prohibitive costs (para 43). Further, a wide access to justice is a general objective of the Aarhus Convention (para 48). Based on the above, AG Kokott concludes that in inquiring into whether the judicial costs are prohibitive, both the objective and subjective circumstances of the case must be considered.
With regard to the limits of costs at different levels of jurisdiction, the AG stated that art. 9(4) Aarhus Convention demands that prohibitive costs are to be prevented at all levels of jurisdiction (para 58).
Legislation
Proposal for revised Environmental Impact Assessment Directive
Environmental Impact Assessment (EIA) provides for the assessment of environmental effects of private and public projects that may have a significant impact on the environment and making use of the findings in decisions on such projects. The existing EIA Directive 2011/92/EU tells which projects are required to have an EIA and for which projects the Member States have the discretion to decide whether an EIA is needed (screening process).
During the application of the EIA Directive, some inefficiencies have emerged. Where the screening process is concerned, a large variety among the Member States exists. Secondly, the quality and analysis of EIA needs improvement. Thirdly, there is a risk of inconsistencies in relation to other Directives, such as the Habitats Directive, and in relation to time frames for the main stages required by the Directive (public consultation, screening decision, final EIA decision). This can lead to higher costs for businesses, administrative burdens for public authorities and socio-economic costs.
The new proposal includes the improvement of the screening process and guarantees an EIA only for those projects which have a significant environmental impact, particularly on human health and natural resources. Moreover, the proposal will reinforce the EIA procedure rules; the scoping stage will be mandatory and a quality control data mechanism will be implemented. Lastly, the proposal establishes the obligatory suggestion of alternatives, the streamlining of the EIA procedure, the better justification by the competent authorities and the establishment of time frames during the EIA’s stages.
Commission proposes reduction in fluorinated GHG emissions
The EU Roadmap for moving to a competitive low carbon economy describes the steps to reach a reduction in greenhouse gas emissions (GHG). It provides for an emissions reduction of over 70% by 2030 in the industrial sector, including fluorinated gases (F-gases).
F-gases can have 23,000 times higher climate effect than carbon dioxide and thus constitute a substantial cause of global warming. Since 1990, the emissions of F-gases have increased by 60% in the EU. The existing regulation No 842/2006 establishes a framework for the prevention of F-gases leakages in the atmosphere by the proper recovery of the relevant equipment, by proper personnel training, labelling of equipment containing F-gases, etc.
The new proposal aims at restricting and further annihilating the generation of products and equipment that contain F-gases. Particularly, it sets the goal of reducing F-gases emissions by 2/3 of today’s level by 2030. An important element in the new proposal is a decline on the total amount of Hydrofluorocarbons (HFCs), (in tonnes of CO2), in the EU market. HFCs are the most commonly used F-gases in the industry. The goal is to reach 21% of the HFCs levels sold in 2008-11 by 2030. The proposal suggests that the affected companies should seek for alternative technologies, while the Commission sets quotas for the companies to introduce substitute products in the market or introduce new entrants.
See COM(2012) 643 final, “Proposal for a Regulation of the European Parliament and of the Council on fluorinated greenhouse gases”
Climate Change
“U-turn” on biofuels from food crops?
Under the EU’s 2009/28/EC Renewable Energy Directive (RED), the Member States are asked to ensure that 10% of transport energy originates from renewable resources (which in practice mainly means biofuels), by 2020. As highlighted by the European Parliament in the process of the adoption of the RED, some biofuels produce more greenhouse gas (GHG) emissions than fossil fuels, and the increase of biofuel demand can lead to Indirect Land Use Change. The increase of crop biomass can contribute disproportionately towards an agricultural use that fails to cover food supply, which in its turn lead to higher food prices, further deforestation and higher GHG emissions. According to the RED, the Commission is to review the impact of ILUC on GHG emissions and propose amendments where necessary.
This has led the Commission to propose amendments to RED and another Directive in October 2012, aimed at minimising the adverse effects of biofuels production on climate change. The Commission proposed the elimination of first generation biofuels to 5%, the end to public subsidies after 2020 unless biofuels can present “substantial GHG savings”, the establishment of a 60% threshold on GHG savings to apply to new biofuels installations from July 2014, the quadrupling of credits to second and third generation biofuels in order to increase production incentives and lastly the conduct of a policy review and scientific report on ILUC that will take place in 2017. The 5% threshold puts an end to further demand of biofuels that are produced from cereal, other starch rich crops, sugar and oil crops as such biofuels are already making up 5% of EU demand in 2012. Producers reacted angrily, as could be expected. Some even talked about claims against the Commission. It might seem justified to be angry if your product is at stake. However, it was clear from the start that something might be done to tackle ILUC. In that sense, what some now describe as a “U-turn” could have been expected from the start.
Whether this proposal as it stands today is the best way forward can be disputed. It seems to have failed to take the ILUC factor into serious consideration. Biofuel producers are still not liable for the emissions caused by biofuels.
The European Commission had published a report “on indirect land-use change related to biofuels and bioliquids” in 2010 and studies regarding ILUC.
Recently a new ILUC analysis method was released. The method is called “Baseline time accounting” and proposes a new way of treating time in ILUC studies. By the application of this method, the researchers claim that the predicted ILUC emissions from previous studies are reduced to 60-70%.
See also:
· Our own EEL comment: “U-turn” on biofuels from food crops causes hot debate
· “EU calls time on first-generation biofuels”, EuroActiv, 18.10.2012
· “Scientists propose new ILUC analysis method”, Biomass Magazine, 06.11.2012
· “EU Commission weakens biofuel rule changes-sources”, Reuters, 16.10.2012
· “Baseline time accounting: Considering global land use dynamics when estimating the climate impact of indirect land use change caused by biofuels”, in The International Journal of Life Cycle Assessment, published online: 11 September 2012.
ETS aviation postponed but US bill signed; general changes proposed
The EU Climate Commissioner Connie Hedegaard reported that the European Commission decided to postpone the application of the EU emissions trading scheme (ETS) on the aviation sector for one year. It is hoped in 2013, the International Civil Aviation Organization (ICAO) will agree on the establishment of an international framework on the issue. Basically, the EU will not ask for allowances for the emissions that took place because of flights by non-EU airlines from and to the EU during 2012. Similarly, monitoring and reporting obligations are not applicable for those airlines. On the other side, flight companies based in the EU will remain subject to the scheme and liable under EU law.
The Commissioner showed her support on the ICAO’s last seminar on Aviation and Climate and commented that due to the EU policy on climate change and aviation support for the establishment of a global framework on aviation by the ICAO has been mobilized. She clarified, though, that this respite will last until ICAO’s next assembly in autumn 2013 and that if there are no concrete results there, the EU ETS will “automatically” be back on track.
At the same time, the European Commission submitted a draft amendment in relevance to the EU ETS Auctioning Regulation. The amendment postpones 900 million allowances from 2013-2015 for a later stage of the third phase of the EU ETS that ends by 2020. This postponement will have no effect on the number of allowances auctioned but only on the distribution of them in an 8 years period.
As was reported earlier, the US House of Representatives passed a bill aimed at prohibiting the US airlines from complying with the EU ETS. After the US Presidential elections, the re-elected president Obama signed the bill. Particularly, the bill addresses the Transportation Secretary to “shield” US airlines from EU ETS if he considers it necessary. The chairman of the House Transportation and Infrastructure Committee commented that despite the one year postponement of the EU ETS, the US still need to protect their sovereignty.
See also:
· “Commission submits draft amendment to back-load 900 million allowances to the years 2019 and 2020”
· “U.S. House OKs bill to shield airlines from EU carbon fees”, Reuters, 13.11.2012
· “Obama shields US airlines from EU’s carbon scheme”, EuroActiv, 28.11.2012
Air
EU Council supports cleaner marine fuel standards
The EU ministers agreed to the amendment of the existing Directive 1999/32/EC on shipping fuels, in order to reduce harmful emissions which will protect the environment and people and implement the recent International Maritime Organization (IMO) rules.
The main objectives of the new directive include the set of new limits for sulphur content of marine fuels (1% until the end of 2014 and 0.10% on January 2015) inside SOx Emission Control Areas (SECAs). By 2020, the 0.50% IMO standard for sulphur limits outside SECAs will be obligatory for all EU seas. This obligation is also applied to passenger ships that operate outside SECAs. Only ships with vessels of alternative exhaust gas cleaning systems operating in closed mode, will be allowed to use marine fuels with sulphur content higher that 3.5%.
Due to the high impact in the industry, Member States are required to provide State Aid and support research and development in the sector provided that this is compatible with EU law. The new Directive further proposes the enforcement of penalties by the Member States. The Commission is bound to conduct a review regarding this Directive by December 2013 and possibly reassess the provisions.
Environmental groups applauded the new Directive. Industry has expressed its concerns. A study estimates that the new measures will lead to fuel costs increasing by around 60 to 90%.
See also:
· Text of the adopted proposal PE-CONS 31/12
· “Council backs cleaner marine fuel standards”, 29.10.2012
Energy
Europe initiates investigation over Chinese Solar Panels
As we have commented on a previous EEL News Service 2012/08, the EU initiated an anti-dumping investigation against China’s solar panel industry. This investigation was followed by another investigation starting at the beginning of November, again regarding an alleged subsidy for solar panel imports from China. The filed complaint back in September also included allegations that imported Chinese solar components receive unfair subsidies by the Chinese Government. The investigation procedure will last for nine months.
At the same time, China filed a complaint at the World Trade Organization accusing the European Union and certain Member States for certain measures related to the renewable energy generation sector and particularly Directive 2009/28/EC, the Renewables Energy Directive (RED). The Member States under review are Italy and Greece. They are accused of favouring solar power producers that basically use domestic sourced components.
Similarly, the US moved towards the implementation of tariffs against Chinese solar companies. Particularly, the US International Trade Commission stated that the US solar panel industries have suffered losses because of the Chinese solar industry due to illegal dumping and subsidies. As a result, the US Commerce department decided to impose tariffs at 14% to 36% for big Chinese panel makers and more than 250% for smaller companies.
See also:
· “EU initiates anti-subsidy investigation on solar panel imports from China”, 08.11.2012
· “EU steps Up Solar Spat with Beijing on Subsidies”, The Wall Street Journal, 08.11.2012
European Parliament shale gas extraction under conditions
In Strasbourg, the European Parliament at the joint debate on shale gas voted for the resolution “on the environmental impacts of shale gas and shale gas oil extraction activities” and the resolution “on industrial, energy and other aspects of shale gas and oil”. As we reported in the previous EEL News Service 2012/09, the extraction of shale gas has been debated in the Environment (ENVI) and Energy (ITRE) Committees of the EP.
The EP accepts Member States’ rights to exploit their energy resources but highlights the necessity to conform with fair competition within the EU in line with the relevant EU safety and environmental protection legislation. The EP considered that there is a need to examine the EU regulatory framework on unconventional fossil fuels (UFF). Therefore, it supports the Commission’s studies on the identification of risks, lifecycle GHG emissions, chemicals, water, land-use and effects of shale gas on EU energy markets. Further, it exhorts the Member States to act responsibly where UFF are concerned until the regulatory analysis is complete, and to implement all the relevant regulations. After the completion of the studies, the Commission is asked to conduct an assessment based on the EU regulatory framework for the environment and human health and propose, if necessary, measures.
The EP observed the thrive of shale gas extraction and its positive economic impact in the US. It further recognised the existence of substantial oil shale reserves among the Member States. Therefore, it urges the Commission to conduct by the end of 2013, an analysis of the future global and EU gas market, the gas infrastructure, the impact of shale gas in the US gas market and move forward to a fully functioning internal EU energy market that should not affect the environment and EU citizens. By 2014, the MS are expected to have fully implemented the relevant legislation so as to ensure the full liberalization of the EU wholesale energy markets.
See also:
· Committee on the Environment, Public Health and Food Safety, “Motion for a European Parliament Resolution on the environmental impacts of shale gas and shale oil extraction activities” & Result of final Vote in the Committee
· Committee on Industry, Research and Energy, “Motion for a European Parliament Resolution on industrial, energy and other aspects of shale gas and oil” & Result of final vote in the Committee
· Results of votes of Wednesday 21 November 2012 for the above reports
General
Trafigura fine definitive but director and manager settle
In 2006, one of the world’s largest oil companies “Trafigura BV” (Trafigura) was involved in dumping hazardous waste in Abidjan, Ivory Coast. The case raised serious environmental and human rights concerns. The Dutch Courts and others dealt extensively with aspects of the case, notably because of the waste had been in the harbour of Amsterdam before heading to the Ivory Coast.
The Dutch Public Prosecutor, the Dutch Public Prosecutor’s Office for Financial, Economic and Environmental Offences and the Procurator’s General Office reached a comprehensive settlement with Trafigura, its president-director and an employee (manager) of the company. The settlement’s aim was to put an end to a series of the protracted proceedings. Both parties agreed to withdraw their appeal in cassation with the Supreme Court and thus recognising the Court’s of Appeal ruling. As a result, Trafigura has to pay the fine of €1 million for the illegal transport and €300.000 as compensation for the assets acquired by that export.
The president-director of the company agreed to withdraw his appeal at the Supreme Court against his prosecution and pay €67.000 based on the settlement offered by the Public Prosecutor’s office. He was prosecuted for his executive role in the illegal transport of waste. The amount is the maximum possible fine imposed for such an illegal activity. Similarly, a manager of the company was sentenced by the Court of Amsterdam to six months prison and a €25.000 fine, due to his executive role and to suppressing the hazardousness of the waste. However, the court of Appeal held that the Court of Amsterdam was not competent. The Prosecutor filed an appeal against that decision. Eventually, the settlement obliges the prosecutor to withdraw the appeal and the employee only has to pay the above amount. Trafigura made known that its executives have not accepted any conviction nor made any admission of liability or guilt or part of their settlement.
Meanwhile, the latest EEA report shows that the EU is exporting more waste, hazardous waste included.
See also:
· “Trafigura’s punishment final, top executive settles”, 16.11.2012
· “Statement from the Management Board of Trafigura Beheer BV”, 16.11.2012
· “EU exporting more waste, including hazardous waste”, 06.11.2012
· “Trafigura fine a set-back for Africa’s environmental justice”, 21.11.2012
Dutch state sued over bad implementation Energy Directive
A foundation of energy advisors and others are suing the Dutch State for failure to implement correctly the 2010/31/EU Energy directive for houses and offices. As a consequence, the sector suffered damages amounting to €51 million, says the Energyclaim Foundation, in which around 80 independent advisors have united. According to the Foundation, since 2003, companies made substantial efforts to increase energy efficiency as required by the Directive, which now turns out to be implemented incorrectly.
See also: “Nederland aangeklaagd voor onjuiste invoering energielabel”, 17.11.2012 (In Dutch)
Events
Innovation in the Water Sector: Addressing the Challenges by Learning Lessons
The Conference is held by the Communications and Management for Sustainability in cooperation with CIWEM and WSKEP. It will concentrate on the various innovation examples by the UK Water Sector to cover the increasing needs of water. The basic issues to be discussed is innovation in water sector by the projection of successful strategies and to clarify the importance of innovation in the water sector for a better implementation by the UK institutions.
Date: 13 December 2012
Location: The School of Oriental and African Studies, University of London, Thornhaugh Street, Russell Square, WC1H 0XG, London, United Kingdom
Clean Air Everywhere: Blowing the winds of change into European Air Policy
The European Environmental Bureau in collaboration with the “Soot Free for the Climate” campaign organises this conference in order to debate about the future of the EU air policies. Three discussion panels will take place. The main issues to discuss is air pollution reduction from most the problematic sources, public health and synergies between climate change and air pollution policies.
Date: 8 January 2013
Location: Representation of the State of North Rhine-Westphalia to the European Union, Rue Montoyer 47, 1000 Brussels, Belgium
12th International Electronics Recycling Congress IERC 2013
Over 500 experts will exchange views and opinions on the latest news and issues of the WEEE recycling business. Topics to be discussed include the strategies of recycling, the cases of hazardous E-waste, the best practices and technologies of recycling materials, the instances of illegal waste transport, issues of WEEE to be reframed, etc.
Date: January 16-18, 2013
Location: Salzburg Congress, Auerspergstraße 6, 5020 Salzburg, Austria
The Conference will focus on all the apropos issues surrounding biofuel Policy and ILUC in the industry. Further subjects under discussion include the expansion and limitation of biomass feedstock, biofuel in transport and shipping fuels, aviation biofuel, investment in biofuel industry and lastly, the best strategies for cellulosic ethanol commercialization (2nd generation biofuels).
Date: 23-24 January 2013
Location: Milan, Italy
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Editors-in-Chief
Wybe Th. Douma (Senior Researcher, T.M.C. Asser Instituut and Lecturer of International Environmental Law, The Hague University)
Leonardo Massai (Senior Lecturer on International and EU Environmental Law, University of Lille)
Editor
Petroula Lisgara (T.M.C. Asser Instituut, The Hague)
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