EU Competences And The Energy Crisis On Renewables, Biodiversity And Energy Security

EU Competences And The Energy Crisis On Renewables, Biodiversity And Energy Security Presented by: Prof. Anker Date: 4 May 2023 Outline - EU environmental competence in general - The energy crisis and novel 'competence approaches' in EU law 'sidestepping' EU environmental law • May 2022 proposal for amendment of the Renewable Energy Directive (RED) • November 2022 proposal for an emergency regulation to accelerate deployment of renewable energy (RE) - The EU Emergency Regulation 2022/2577 of 22 December 2022 - Strengthening EU environmental law? EU Competence In General - - The general principles - TEU Art. 5 • Whether and how the EU can legislate • What competence has been conferred to the EU? • The choice of legal basis - complex relations? Types of 'competence struggles' • The MS v EU power struggle  E.g. subsidiarity and the degree of harmonization • The EU institutional power struggle  E.g. European Parliament v Council (law-making procedures) • The EU sectoral power struggle  E.g. energy security v environment/biodiversity - Blurred boundaries.. Environment and energy competences - blurred boundaries.. - TFEU art. 192 – environment • Art. 192(1) ordinary legislative procedure (Council and European Parliament) • Art. 192(2) special legislative procedure (Council), e.g.  Town and country planning  Measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply (c) - TFEU art. 194 – energy • Measures to ensure the functioning of the energy market, security of energy supply, energy efficiency and interconnection of energy networks • Measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Art. 192(2)(c) - TFEU art. 114-internal market - TFEU art. 122 - economic and monetary policy (emergency measures)? - TFEU art. 11 the principle of integration The energy crisis - and novel EU 'competence approaches' to accelerate RE - RePowerEU Plan, March 2022, i.e. • Commission proposal for amendment of the RE Directive, May 2022 • Streamlining and speeding up permit-granting procedures for RE - exemptions from EU environmental legislation - European Council, October 2022 • Call for fast-tracking of the simplification of permitting procedures for RE, including emergency measures cf. Art. 122 - Commission proposal for a Council Emergency Regulation, cf. Art. 122, November 2022 • Adopted 22nd December 2022, Reg. 2022/2577 Renewable Energy Directive - proposal, May 2022 - Why: • .. administrative barriers are increasingly becoming more important than other types of barriers.. Conflicting public goods are the second main source of obstacles for the deployment of renewable installations.. The most prominent among them concern environmental protection (biodiversity and protection of endangered species and protection of water bodies), COM(2022) 222 final - How: • 'RE go to areas' exemptions from the EIA and Habitats Directives (and timelimits) • Appropriate mitigation measures - killing or disturbance of species is not deliberate • - Overriding public interest until climate neutrality is achieved Legal basis: • Art. 194(2) and 192(1) 'to amend the application of the Union environmental acquis' • Final adoption pending... - provisional agreement March 2023 The Emergency Regulation 2022/2577 - Why? • ..the war of aggression against Ukraine and the unprecedented reduction of natural gas supplies.., skyrocketing energy prices, not only endangering the economy in the Union, but also seriously threatening security of supply.. That risk will persist regardless of any temporary reduction of wholesale prices.. A need for targeted measures capable of accelerating the pace of deployment of renewables.. • .. lengthy and complex administrative procedures have been identified as one of the key obstacles hampering the speed and number of investments in RE.., COM(2022)591 final - How? • A temporary urgency measure.. 18 months (12 months proposed) • Short-term acceleration of the permit-granting procedures for RE • - By 'exemptions' from EU environmental legislation (and time-limits)! Legal basis • Art. 122 economic and monetary policy Regulation 2022/2577 - the (biodiversity) exemptions - Presumption of overriding public interest serving public health and safety (Art. 3) • Derogation criterion in the Habitats, Birds and Water Framework Directives • Priority in balancing of legal interests  For (protected) species only when appropriate species conservation measures to ensure a favorable conservation status at population level are undertaken, and financial resources are made available for that purpose.. - MS exemption from EIA Directive and species protection of the Habitats and Birds Directives, for 'dedicated renewable or grid area' subjected to a strategic environmental assessment and appropriate mitigation measures regarding species (Art. 6) - Exemption from EIA for solar energy in existing or future artificial structures (Art. 4) - EIA confined to additional impact when repowering of RE (Art. 5) The biodiversity exemptions in practice - Natura 2000 sites - - Habitats Directive Art. 6(4) - three conditions for derogations • Imperative reasons of overriding public interests • Absence of alternative solutions • All compensatory measures C-387/15 and C-388/15 Orleans • (Art. 6(4)) can apply only after the implications of a project have been analysed in accordance with Art. 6(3)... In order to determine the nature of any compensatory measures, the damage to the site concerned must be precisely identified. • Knowledge of those implications ..is a necessary prerequisite for the application of Article 6(4).. (61) - C-164/17 Grace & Sweetman • An Art. 6(3) assessment must contain complete, precise and definitive findings capable of removing all reasonable scientific doubt as to the effects... The biodiversity exemptions in practice - birds (and bats) - Birds Directive Art. 5 (and Habitats Directive Art. 12) • Prohibition against deliberate killing or disturbance  'Deliberate' includes not only intentional killing of a specimen, but also, the acceptance of the possibility of such killing - C-473/19 and C-474/19 Skydda Skogen (51)  Cannot be made dependent upon whether the species is at some level of risk or are suffering a long-term decline in population - C-473/19 and C474/19 Skydda Skogen (45) • Derogation BD Art. 9 (and HD Art. 16)  Specific reasons, e.g. public health and safety  No other satisfactory solution - Regulation 2022/2577 • MS derogation if appropriate conservation measures at population level (Art. 3) • MS exemption from prohibition in 'dedicated renewable or grid area' if appropriate mitigation measures (Art. 6)  No criteria for designation of such areas, but SEA Regulation 2022/2577 - what competence of the EU - The legal basis TFEU art. 122 • 1. Without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy. • 2. Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the Member State concerned. The President of the Council shall inform the European Parliament of the decision taken. - Title VIII economic and monetary policy • Are the measures/objectives economic and monetary measures/objectives? • Should they be? The choice of legal basis - what is the (main) objective? - The choice of legal basis must be based on objective factors which are amenable to judicial review and include in particular the aim and content of the measure • - Centre of gravity test - what is the main purpose or component? C-155/91 Commission v Council (Waste Directive) • Art. 130s (now 192) v art. 100a (now 114) • '.. recourse to art. 100a not justified where the measure to be adopted has only the incidental effect of harmonizing market conditions..' - The (stated) objectives v the (intended) effects - blurred boundaries The choice of legal basis an 'effects-based' approach? - C-5/16 Poland v EP and Council (market stability reserve under EU ETS) • Art. 192(1) v art 192(2) • Poland argued that the potential effects of the market stability reserve would affect Poland's choice between different energy sources and the general structure of its energy supply, primarily due to the heavy reliance on coal and lignite which would be severely affected by an increase in the price of emission allowances. • CJEU:  Given that, in order to know the real and specific effects of a legislative measure, it is necessary to analyse those effects after its entry into force, the legislature's choice would have to be based on assumptions as to the likely impact of that measure, which, by their nature, are speculative and are in no way objective factors amenable to judicial review..  Consequently, it must be found that the assessment of the effect of an EU measure on a Member State's energy policy is not a factor that must be assessed in addition to the aim and content of that act, or by derogation therefrom. Choice of legal basis - what is decisive? - An objective examination of the real content and character of the measure and its linkages to the aims pursued by the relevant legal basis.. - - - What is the real content and character of Regulation 2022/2577? • Permit-granting procedures for RE • Exemptions from EU environmental legislation Linkages to the aims pursued by the relevant legal basis.. • Economic and monetary objectives? • Energy security? • Balancing of energy security and biodiversity? A need for (temporary) urgency measures? Regulation 2022/2577 - what competence of the EU - The procedure - TFEU art. 122 • - Legislative or non-legislative act? TFEU art. 289 - 'legislative acts' • Ordinary legislative procedure, cf. art. 294 • Special legislative procedure  EP with participation of Council, or  Council with participation of EP - Non-legislative acts • - Often delegated or implementing acts - TFEU Art. 290 + 291 Could a non-legislative act 'sidestep' environmental legislative acts? Regulation 2022/2577 - what competence of the EU - The principle of subsidiarity • MS cannot make 'exemptions' or 'sidestep' EU environmental legislation on their own • The project-related balancing of energy security/climate change and biodiversity concerns needs careful consideration and assessment at local level - The principle of proportionality • Are the measures suitable, necessary and not beyond needed to achieve the objectives? • Will Regulation 2022/2577 speed up permit-granting procedures? Strengthening EU environmental law..? - Novel 'competence' approaches to 'sidestep' EU environmental legislation • - - 'symbol politics'? Failure to incorporate energy security concerns in EU environmental law? • Has the interpretation of the Habitats and Birds Directive become to narrow? • Can the derogations be used more extensively? How to reconcile energy security and biodiversity concerns? • Revision of the Habitats and Birds Directives? • Revision of the Treaties?