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Throughout recent years it has become clear that the deployment of renewable energy capacity is crucial for the EU to reach its climate objectives and fight the obstacles brought by the energy crisis. Renewable energy constitutes a very attractive alternative as an energy supply source to help the EU fight its energy dependence from Russia. Nevertheless, renewable energy policies that are not properly thought through can significantly harm environmental protection objectives.
In August 2023, two environmental protection organizations filled two separate annulment actions contesting the rejection of the Council of the European Union to review its rules under the Council Regulation (EU) 2022/2577 (‘Emergency Regulation’). These rules allow the fast track of the permit-granting procedures for renewable energy projects. The Applicants, Föreningen Svenskt Landskapsskydd, in the one case, and CEE Bankwatch Network and Ökobüro, in the second case, claim that the Emergency Regulation infringes the principle of proportionality, namely because of the choice of its legal basis, Article 122 TFEU, but most importantly because it allows Member States to circumvent environmental protection rules in the EU's secondary law.
In November 2023, the Commission proposed to prolong these energy emergency measures that were due to expire on 30 December 2023 for an additional period of 12 months, including the rules on permit-granting for renewable energy projects. The proposal needs to be adopted by the Council.
What is the Emergency Regulation on renewables about?
The Emergency Regulation was originally adopted by the Council in December 2022, using Article 122(1) TFEU as the legal basis, to ensure that European consumers would not be exposed to unstable prices and to alleviate the reduction in energy demand by replacing natural gas supplies with renewable energy sources and to ensure energy security. The Regulation includes several ‘temporary rules of an emergency nature to accelerate the permit-granting process applicable to the production of energy from renewable energy sources (...)’.
According to the provisions, Member States can be exempted from certain assessment obligations under the EU’s environmental legislation when approving permits for renewable energy, energy storage and electricity grid projects that are needed for the integration of renewable energy into the electricity system (Recital 6).
Additionally, there is a conditional presumption for renewable energy projects. This means that, in principle, renewable energy projects are to be considered of ‘overriding public interest’, and as such their permit granting can be fast tracked without taking into consideration the harm to some habitats or species. But, when there is ‘clear evidence’ that these projects will result in major adverse effects to the environment, and that those effects cannot be mitigated or compensated for, the presumption can be lifted, and the renewable project will not be granted its permit.
Yet, there is no rule on the reverse of burden of proof rule included, meaning that it will be up to the individuals that claim that the environment is being harmed through the construction of a renewable energy site to show that there is ‘clear evidence’ of that. That is extremely problematic given that the average person, or even well-established NGOs usually lack the resources to collect such evidence.
To consider renewable energy projects of overriding public interest while legally permitting the derogation of environmental protection standards sends a strong, and in my view, misguided message to EU citizens. Not every renewable energy project will serve higher interests such as health and human safety. Indeed, many can contribute to the contrary by allowing the destruction of natural habitats and endangering species.
Are renewable energy projects more important than environmental protection standards?
In disputing the decision of the Council to reject their internal review request of the Emergency Regulation, the applicants are asking the Court to, amongst other things, decide on whether the adoption of these new fast track policies to reach climate goals can be allowed to also cause significant harm to the environment.
These two claims reflect the social resistance to the acceleration of renewable energy projects that has been recognized by environmental protection organizations. It is undeniable that the EU presents valid concerns that led it to adopt such rules. Rising energy prices, the danger of not being able to secure energy for its citizens, are good grounds for new rules. Replacing Russian gas by renewable energy sources can be positive from a climate change perspective. However, there must be express legal safeguards to protect the environment surrounding the sites of such projects. Achieving a faster deployment of renewable energy projects should not be in disregard of environmental concerns.
Is the Emergency Regulation on renewables here to stay?
The adoption of emergency policies that circumvent environmental secondary legislation can easily result in legal actions being brought before the Court. From a legal standpoint, the Emergency Regulation seems neither adequate nor proportionate. Plus, there is a growing body of evidence that Article 122 TFEU can only be relied on in a crisis situation and therefore only can give rise to temporary measures. Yet, there appears to be room (or at least some acceptance in the EU) for the Emergency Regulation to become a permanent framework, and with that, the environmental protection derogations that it includes. If this happens, then the door for the above-described circumvention would be open permanently, rather than just temporarily. This should be cause for serious concern.
A fair energy transition with the implementation of renewable energy legislation needs to ensure that renewable solutions not only reduce greenhouse emissions but also ensure the protection of the environment. As such, the acceleration of the deployment of renewable energy projects could be made through alternative ‘quick-fixes’ of administrative nature. These could include establishing a one-stop shop procedure for the entities applying for such projects, and ensuring that the necessary resources to deliver a complete, high-quality, and rapid, environmental impact assessment are available to competent national authorities.