Added to Case Law
Annulment of Plans and Programs subject to EIA
Opinion – Case C-567/10, Inter-Environnement Bruxelles and Others, 17 November 2011
This is a reference for a preliminary ruling concerning the application of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment. The merits of the case concern an amendment of the Belgian regional planning act, which is contested by three Non-governmental organizations, Inter-Enviroment Bruxelles, Petitions-Patrimoine and Atelier de Recherche et d’Action Urbaines. The NGOs addressed the Belgian constitutional court with the claim, that the amendment of the act no longer requires an environmental impact assessment for the abrogation of specific land utilization, contrary to the requirements of Directive 2001/42/EC. The Belgian constitutional court made the present referral as the case concerns the applicability of Directive 2001/42/EC.
Advocate General (AG) Kokott essentially had to answer whether the scope of the Directive is only the creation and modification of plans and programmes or also their abrogation. The AG observed that Art 2 (a) of the Directive defines the scope of as “plans and programmes […] as well as any modifications to them” without making explicit mentioning of their abrogation. However, the AG is of the opinion that even a narrow interpretation of the scope can be understood as including an abrogation of a plan or programme as principally every modification is constituted from the abrogation of an existing rule and the determination of a new rule. In a “sole” abrogation, an existing plan or programme is therefore modified as the rule governing it is lifted.
The AG also took note that the interpretation of the Directive should not be mainly guided by a textual analysis, but an interpretation in the context of its legislative goal, namely the environmental impact assessment of plans and programmes which are likely to have an effect on the environment. In this regards, the removal of limitations on projects can have a considerable effect on the environment. Consequently, the AG advised the Court that a procedure for the complete or partial abrogation of a plan or programme is to be interpreted as a “modification” in lieu of Art. 2 (a) of the Directive.
Opinion on continuation of wrongly adopted Plans and Programs
Case C-41/11, Inter-Environnement Wallonie and Terre wallonne, 8 December 2011 (not yet in English)
In this reference for a preliminary ruling the Advocate General had to advice on the question whether programmes, which have not been preceded by an EIA, can be temporarily continued or must be halted immediately. The reference stems from a dispute between two Belgian NGOs, Inter-Environment and Terre Wallonne, and the Region of Wallonia in Belgium. The region established a programme for the fertilization of fields in order to comply with the Nitrate Directive, without however conducting an EIA as required by Directive 2001/42. The NGOs consequently claim that the programme shall be annulled. The region claims that a retroactive annulment of the programme would cause Belgium to be in breach of the Nitrate Directive, resulting in a conflict of obligations.
AG Kokott began with the observation that the retroactive annulment of the programme would be the normal sanction if it was established in breach of Directive 2001/42, following the Court’s decision in case Terre Wallone C-105/09. If such a programme is annulled, it needs to be replaced by general or previous programmes which regulate the situation. However, the AG noted in that respect that general or previous programmes could have a more severe impact in the environment than the programme which has been adopted without conducting an EIA. Therefore, the annulment of wrongly adopted programmes could undermine the objective of Directive 2001/42/EC, which ultimately aims to protect the environment. She therefore concluded that national courts, in deciding over the annulment of a wrongly adopted programme, have to examine what programme would enter into force instead. If the replacing programme is more detrimental to the environment than the wrongly adopted one, the Court can order the temporary continuation of the current programme until one which is correctly based on an EIA has been established.
Added to Legislation
Revised E-Waste Directive approved by Parliament
The European Parliament approved the proposal for a revised directive on Waste electrical and electronic equipment (WEEE) in its’ plenary assembly on 19 January 2012. The new rules introduce higher target for the collection of those waste materials. This applies to all Member States, irrespective of their current “flat-rate” target of 4kg per person per year. The revised directive aims at an ambitious long-term goal of 65% of e-waste collection in relation to e-goods put on sale three years previously, by 2019. Also, e-waste exports are being regulated more stringently by moving the burden of proof from custom officials to exporters, obliging them to properly demonstrate that goods are being shipped for repair or reuse as appropriate. This aims at reducing the risk to human life and the environment in countries where conditions are often hazardous.
Meanwhile, the European Environmental Bureau pointed outthat the revised directive has serious loopholes. Notably, it allows for defective electronic or electrical equipment to be sent to developing countries for “testing”, making it easy to circumvent the goal of reducing e-waste exports and exposing people that are ill-equipped to handle such waste to dangerous substances.
The final step before the entry into force of the directive is the approval of the Council of Ministers.
Parliament approves new biocide rules
The European Parliament approved of new rules on the approval of biocides on 19 January 2012. The rules ban the most dangerous chemicals and recognize the potential threat of nanomaterial to human health and the environment. The aim is to reduce the environment and health risks of biocides to a minimum. For those purposes, a new EU authorization system, based on a regulation rather than a directive as is presently the case, will be put in place from 2013 onwards in order to provide for an efficient and reliable authorization system of biocide products. Also, certain treated articles, such as anti-bacterial coatings used in the preparation of food, must be clearly labelled to give information of the products used to produce it. The last formal step is the approval of the Council of Ministers.
Added to Policy
Provisional Council agenda to tackle ILUC & more
A provisional agenda for the first half of 2012 shows that the European environmental ministers will meet on 9 March 2012 in order to discuss, amongst others, a long-awaited proposal for a Directive on Indirect Land Use Change (ILUC). At present, the Renewable Energy Directive (RED) demands that EU Member States ensure that 10% of their transport fuels consist of biofuels by 2020. Sustainability criteria on direct land use change are ensuring that these biofuels are good for the environment, preventing for instance the cutting down of rain forests to plant palm oil plantations. The dangerous loophole in RED is indirect land use change. Switching the growth of food crops to rain forests and using the old crops areas for palm oil production is not prevented, although in this way producing biofuels has a negative rather than a positive effect on the environment. On this issue, see for instance the apt comment in the European Voice. The Commission was due to draw up an ILUC proposal by December 2010, however, has failed to do so until now. It remains to be seen whether inter-services debate in the Commission will lead to a proposal for an ILUC Directive.
The Danish presidency, which took its seat with the beginning of the year 2012, also hopes to reach an agreement on national bans on genetically modified crops as well as the low-carbon roadmap of the Commission. March also marks the time of the adoption of a common EU position ahead of the RIO+20 conference on sustainable development in Brazil in June 2012. Moreover, meetings in June concern agreements on sulphur contents of shipping fuel, new chemical standards for water and a framework for the seventh Environment Action Programme (EAP7) of the EU.
Added to General
Commission to consider action on Waste Law implementation
The European Commission announced on 13 January 2012 that it is considering to improve EU waste law. A study shows a number of ways as to improve the implantation of waste law. It suggests inter alia to give the European Environment Agency (EEA) more responsibilities to monitor implementation, and creating auditing capacity at the EU level.
Moreover, the polluter pays principle is to be made better use of in order to ensure compliance. Other economic and legal incentives include landfill taxes and bans, extending “producer responsibility” and the introduction of a “pay as you throw” scheme. The study also shows that full implementation of the law would save €72 billion annually and create more than 400.000 jobs in sectors related to recycling.
First draft of Rio+20 text released
The secretariat of the United Nations Conference on Sustainable Development (UNCSD) submitted the first draft of the Rio+20 negotiation text on 11 January 2012. The text underlines that the overarching goal is to be sustainable development which is to be achieved by, amongst others, the green economy concept. This concept is merely a means to achieve the overarching goal and shall not be seen as a rigid set of rules as stressed by the draft. It includes trade liberalization, technology transfer and financing as key aspects in supporting developing countries to attain a higher degree of sustainability.
The draft text also calls for strengthened international governance. This would entail that the UN Environmental Program (UNEP) would either receive more access to resources in order to fulfill its mandate, or receive greater powers instead. A key EU demand, the integration of energy, waste, water and forests as key issues for sustainability, appears in the document. This is considered as the pillar of sustainable development.
Governments can make comments on the first parts of the draft text by 23 January 2012, whilst further exchanges will be held in March.
BASF leaves European Genetically Modified Crops Market
BASF, a large chemical company, announced on 16 January 2012 that it will cease developing and commercializing genetically modified (GM) crops in Europe. BASF states that the “lack of acceptance” of GM in Europe is the reason for this decision. It will close two of its production and research sites in Europe and will move its sciences headquarters from Germany to the US. As a result, Amflora potatoes, one of two GM varieties approved for cultivation in the EU (the other being Monsanto’s MON 810 maize) will not be grown in Europe anymore.
Resistance to GM crops and foodstuffs remain high in the EU as is underlined by the fact that France continues to ban MON810 maize despite a ruling of the ECJ which held that this measure was illegal. As we reported, France failed to demonstrate the presence of a situation which is likely to constitute a clear and serious risk to human or animal health or the environment.
Added to Climate Change
Reactions to ETS Judgment & Status of US “Anti-ETS” Bill
Since 1 January 2012, EU and foreign airlines flying to and from the EU are obliged to participate in the EU Emission Trading Scheme (ETS). As reported, the ECJ decided in December 2011 that the EU legislation in which this obligation is laid down does not violate international law. Challenges remain, however. In the US, legal and policy objections to the inclusion of flights by non-EU air carriers in the EU ETS remain unresolved, as a top State Department official said in a statement. The industry also voiced its discontent with the judgment of the Court. The US airline industry body “Airlines for America” said that it would “comply under protest” but also continue to review its legal options. Chinese airline associations, however, announcedthat they would not pay the charges for their emissions and thus that they are boycotting the EU law.
The US bill, which prohibits operators of civil aircrafts of the United States from participating in the EU ETS, is on debate in the US Senate after it received overwhelming support in the House of Representatives. The National Business Aviation Association commended the bill for “taking string action to prevent the EU from implementing a plan that will have negative economic consequences for our economy, and for business aviation,” whilst the Coalition of Airline Pilots Associations also sees the ETS as costing US aviation jobs and negative on the financial operation of US/EU flights. Yet, Environment America, the League of Conservation Voters, Greenpeace and other NGOs, oppose the bill in a common position. The NGOs observe that the premises of the bill are “fundamentally erroneous legal and policy assumptions” as the Directive is “carefully crafted” as to be non-discriminatory and comply with International Law.
Whilst it remains to be seen whether the US bill will gain approval in the US Senate, it is clear that the EU will hold on to the Scheme. Connie Hedegaard twittered in that respect: “After a crystal-clear ruling today, the EU now expects US airlines to respect EU law as the EU respects U.S. law”. It can be assumed that she expects the same from Chinese airlines.
A 4 pages long legal brief on the situation can be found at Legalweeklaw.com, after subscribing (for free).
Added to Events
Legislative controls on pollutant emissions from industry
The Academy of European Law holds a conference on European Emissions Law from 23 to 24 February 2012. The conference focuses on legislative controls on pollutant emissions from industry. It aims to provide practitioners in the field of environmental law with an analysis of recent legislation and ongoing policy development in the field of European emissions law. Other key topic include the implementation of the new IED in national law, the prevention and control of industrial emissions as well as the regulation of major industrial accidents in the EU. Registration can be made on the here, the programme and other information are available here.
Location: ERA Conference Centre, Trier, Germany
Date: 23 – 24 February 2012
Wybe Th. Douma (Senior Researcher, T.M.C. Asser Institute and Lecturer of International Environmental Law, The Hague University)
Leonardo Massai (Senior Lecturer on International and EU Environmental Law, University of Lille)
Maximilian L. Garré (T.M.C. Asser Institute, The Hague)
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