Limits and opportunities for an adaptive management approach to marine renewable energy developments in EU waters

Transcription

1 Limits and opportunities for an adaptive management approach to marine renewable energy developments in EU waters Sander van Hees en Marleen van Rijswick Reconciling the Rule of Law with Adaptive Governance of Marine Ecosystems Oslo, 15th June 2018, University of Oslo, Gothenburg and Eastern Finland & Tidal energy Texel, Wadden sea, the Netherlands (Nemo Kennislink)

2 Setting the scene: challenges Challenges when combining protection of marine ecosystems and renewable energy supply: Realising sustainability (sustainable use of marine ecosystems) as an overarching aim of EU policies by way of adaptive management approaches Innovation and dealing with uncertainties Combining legal certainty and flexibility Better alignment of different policy fields Dealing with governments, business, NGO's and citizens

3 Misunderstandings (discussion afterwards) Rule of Law vs Rechtstaat (broader concept than legality, checks and balances, also respecting human rights, taking care of minorities, accountability) Common law vs civil law Typical characteristics of EU law Adaptive governance, adaptive management and all related theoretical concepts a wealth of theoretical literature from different disciplines, mainly from the US Often combined with resilience We take a practical approach, illustrated by a case study

4 Different aims, different legal regimes for Adaptive Governance, Management and Licensing in Marine Ecosystems Social, environmental/ecological and economical aims Conflicting legal regimes Economic regulations: open market, no state aid Environmental regulations: protection and improvement of nature areas and species and fresh waters (WFD, BHD), sustainable use and protection of marine waters (MSFD) Energy regulations: economic and environmental aims: towards more renewable energy

5 Adaptive management approach as a solution? Innovation and dealing with uncertainties Wadden sea, Texel: a look in the future?

6 Adaptive approaches as a solution for what? And what aims benefit from adaptive approaches? The need for flexibility is often abused for not meeting strict protection requirements and letting economic interests prevail This influenced the strict approach of for example the nature protection regime by the courts It may harm the position of NGOs protecting the marine environment and citizens Possible legitimate reasons for flexibility and an adaptive approach: Innovations to meet sustainability aims Dealing with uncertainties (effects of climate change, effectiveness of certain measures) Safeguards are necessary for environmental and rule of law reasons

7 Combining legal certainty and flexibility How to insert adaptive approaches in the legal system? Innovation and uncertainties ask for flexibility Law provides: (limits to) powers for the authorities, policy instruments, participation procedures and access to justice legal certainty for investors and legal certainty and clarity about the protection level (for citizens and NGO's)

8 Adaptive approaches at several levels By the legislator: open norms or norms that allow a balancing of interests (Marine Strategy Framework Directive: sustainable use instead of protection) setting goals, no means (20 % renewables, a good status of fresh waters) including explicit possibilities for experimentation cyclic planning procedures combined with monitoring obligations (WFD, MSFD) exemptions that allow for experiments, a balancing of interests and taking into account innovations and changing circumstances By explicitly referring to the balancing and aligning of different legal regimes (MSFD)

9 Adaptive approaches at several levels By the administration during the decision making for specific projects Adaptive licensing to overcome strict nature protection regime and the precautionary principle (Wadden sea case ECJ) By using derogations and exemptions By integrating planning and policy instruments from different policy fields By explicitly motivating their balancing of interests in specific decision making (Schwarze Sulm case ECJ) By the (administrative) courts Giving ample room for policy discretion/margins of appreciation Allowing experiments (adaptive licensing perhaps not in accordance with legal requirements)

10 Possible issues concerning the rule of law and adaptive approaches at the several levels By the legislator open norms setting goals, no means including possibilities for experimentation exemptions that allow for experiments, a balancing of interests and taking into account innovations and changing circumstances Possible pitfalls difficult to enforce, unclear protection level provides flexibility, difficult to enforce when offering flexibility in meeting the goals provides flexibility, clarity for third parties? needs safeguards to guarantee protection level cyclic planning requirements combined with monitoring obligations By explicitly referring to the balancing of interests and aligning of different legal regimes Monitoring results should be taken into account in the next planning cycle Ensure clarity on the weight of the diverse interests

11 Pitfalls of the adaptive approaches at the several levels By the administration during the decision making for specific projects Adaptive licensing By using derogations and exemptions By motivating their balancing of interests in specific decision making By integrated planning and policy instruments from different policy fields By the (administrative) courts Giving ample room for policy discretion and margins of appreciation Allowing experiments offers flexibility, includes safeguards, but: perhaps when it s too late and the damage is done should be used restrictively, difficult to challenge by ngo s and citizens should be done in a way it can be challenged in court difficult to enforce and to challenge by ngo s and citizens offers flexibility, lack of legal certainty

12 Our case study: Marine renewable energy developments in EU waters

13 Innovative marine renewable energy: what role can adaptive approaches play? European Union Law marine renewable energy projects

14 Innovative marine renewable energy: what role can adaptive approaches play? Research question: what barriers are there within EU law to marine renewable energy projects Birds and Habitats Directives Water Framework Directive State aid rules when implemented on a large scale in the future and how can these be dealt with? solutions include (combinations of): mitigation (but difficult) derogations various types of adaptive management detailed renewable energy plans

15 Innovative marine renewable energy: what role can adaptive approaches play? Tidal energy Wave energy Salinity gradient energy (blue energy)

16 Innovative marine renewable energy: what role can adaptive approaches play? Research question: what barriers are there within EU law to marine renewable energy projects Birds and Habitats Directives Water Framework Directive State aid rules when implemented on a large scale in the future and how can these be dealt with? solutions include (combinations of): mitigation (but difficult) derogations various types of adaptive management detailed renewable energy plans

17 Innovative marine renewable energy: what role can adaptive approaches play? Habitats Directive / ECJ: possible barriers Water Framework Directive / ECJ: Member States are only allowed to authorise new projects when: Member States are required to refuse authorisation for an individual project where: They are certain that those projects will not have lasting adverse effects on the integrity of the Natura 2000 sites in question, it may cause a deterioration of the status of a body of surface water or and where no reasonable scientific doubt remains as to the absence of such effects. where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status

18 Innovative marine renewable energy: what role can adaptive approaches play? The European Commission s approach: adaptive approaches The Scottish approach: Focus on adapting projects that are in operation in the case that negative environmental effect occur. Elements: A rigorous monitoring scheme and A pre-defined validated package of appropriated corrective measures Example: SeaGen tidal energy project in the UK Focus on starting at a small scale with low environmental effects. The approval of subsequent phases is dependent on the monitoring results gathered. Elements: Intensive monitoring requirements and Phased deployment Example: Pentland Firth tidal energy project in Scotland

19 Conclusions & Discussion Do we really learn from adaptive approaches? What and when does it really bring us? Relationship between adaptive approaches and using exemptions: how to guarantee a sustainable outcome What safeguards are needed/should be developed? How are governance and rule of law aspects included? What are the effects on legal certainty? What does an adaptive approach mean for enforceability? What roles for NGOs and citizens?

20 Thank Blue energy you for (salinity your gradient attention, energy) also on behalf of Fritz!