The Aarhus Convention and Renewable Energy:

A discussion of article 13 Renewable Energy Directive

Marjan Peeters ICOS conference 29 november 2013

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

Planned (blue) versus estimated (red/dotted) trend in EU renewable energy

• http://ec.europa.eu/energy/renewables/reports/doc/com_2013_0175_res_en.pdf

Renewable Energy Activities: - Electricity production ànd storage

- Heating and cooling - Distribution networks

Geothermal Heating & Cooling (Heerlen, Nethelands)

Storage of renewable electricity, Elbe Canal, Germany

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

Quote from the Commission: “Simplification of administrative regimes”

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.

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

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

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? )

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)

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

Contradiction of spirits

Aarhus Quick procedures

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): http://www.turn180.ie/

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?

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

Thank you

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 ...”

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”.

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”

Puglia c’tnd

• The total prohibition was accepted by the Italian court

http://ec.europa.eu/energy/renewables/reports/doc/2013_renewable_energy_progress.pdf