The Aarhus Convention and Renewable Energy: A discussion of article 13 Renewable Energy Directive

Transcription

1 The Aarhus Convention and Renewable Energy: A discussion of article 13 Renewable Energy Directive Marjan Peeters ICOS conference 29 november 2013

2 Renewable Energy in the EU: a framework approach Directive 2009/28/EC: 20 % renewable energy consumption in 2020 Legal obligation for member states Differentiated targets Large discretion: national renewable energy action plans Compliance mechanism: ex ante and ex post Trading among member states allowed

3 Planned (blue) versus estimated (red/dotted) trend in EU renewable energy s_en.pdf

4 Renewable Energy Activities: - Electricity production ànd storage - Heating and cooling - Distribution networks Storage of renewable electricity, Elbe Canal, Germany Geothermal Heating & Cooling (Heerlen, Nethelands)

5 Quote from the Commission: Simplification of administrative regimes Push from the European Commission and EP Committee on Industry, Research and Energy : A one-stop shopping approach is desirable (EP committee, 2008). The availability of a single administrative body for dealing with renewable energy project authorizations is still limited (Commission 2013) Committee of the Regions: decrease the pressure to set up centralized, single administrative bodies

6 Article 13 Administrative procedures, regulations and codes 1. Member States shall ensure that any national rules concerning the authorisation, certification and licensing procedures that are applied to plants and associated transmission and distribution network infrastructures for the production of electricity, heating or cooling from renewable energy sources, and to the process of transformation of biomass into biofuels or other energy products, are proportionate and necessary.

7 List of requirements in article 13(1) MS have to ensure: 1) Clear coordination of governmental responsibilities, with transparent timetables 2) Comprehensive information to applicants 3) Streamlining and expediting procedures 4) Simplified and less burdensome authorisation procedures, including through simple notification if allowed by the applicable regulatory framework, for smaller projects

8 Critical observation 1: Is it necessary to have article 13 RED? - Each Member State has to reach its RE target - The Commission can enforce that target (that is crucial) - Article 13 is a means towards an end, not a goal in it self

9 Implementation of article 13 Commission: (2013 progress report COM(2013)175) - progress in removing administrative barriers is still limited and slow - often no reporting from MS (required according to art. 22(3) RED) - Commission announces to launch infringement proceedings where Member States fail to act (but what can exactly be enforced? )

10 Critical observation 2: Other EU environmental law might be applicable in case of an article 13 procedure Puglia case C-2/10: substantive decisions like a total prohibition for wind energy are covered by article 13 RED (?) Water Framework Directive (hydro power, storage projects) Habitat Directive (wind energy, solar energy) -> see case C/2-10, Windmills in Puglia Waste Framework Directive (biomass) Industrial Emissions Directive (biomass)

11 Critical observation 3: How to align article 13 RED with the Aarhus Convention? Renewable energy projects might be covered by article 6 Aarhus Convention Activities which may have a significant effect on the environment. (art. 6(1)(b). In that case, article 13 has to be combined with an appropriate public participation procedure as required by Article 6 AC

12 Contradiction of spirits Aarhus Quick procedures

13 Critical observation 4 The `Nimby effect of the Aarhus Convention Local resistance against for instance biomass plants and wind energy farms The Public Concerned might consist of opponents to renewable energy For example: Mr Swords, Ireland (ACCC/C/2010/54 concerning compliance by the European Union, on 29 June 2012):

14 How to overcome NIMBY? National developments (Denmark) -> Financial arrangements: - provide citizens with adequate compensation for losses and hindrance - require renewable energy operators to let local communities and citizens participate into the economic business of renewable energy -> Are these provisions indeed proportionate and necessary?

15 Conclusion A push towards harmonisation of administrative law by article 13 for the sake of renewable energy Article 13 is however vague and seems hardly enforceable through infringement proceedings Moreover, a string of EU laws ànd the Aarhus Convention has to be complied with, if applicable The binding targets are a bigger push for MS to move forward with renewable energy, and, in this vein, to establish adequate procedures But only if compliance will be reached or be pushed for

16 Thank you

17

18

19 The case of Windmills in Puglia, Italy HELLO PUGLIA Puglia is full of enchanting towns that you can visit during your holidays:... rocky hills, medieval towns, fields of windmills, poppies and sunflowers...

20 Puglia, Italy: Total prohibition on windmills in natura 2000 area The local government issued a total prohibition on windmills in a legally protected natural area Case (preliminary question) referred to the Court of Justice of the EU: is this total prohibition legally acceptable? Art. 13 Renewable Energy Directive: all procedures for renewable energy should be proportionate and necessary.

21 Court of Justice EU, C-2/10 It is required that measures adopted by Member States do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued

22 Puglia c tnd The total prohibition was accepted by the Italian court

23

24