European Environmental and Public Law

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Building owners and developers will need to provide energy performance certificates for buildings.

By Paul A. Davies and Michael D. Green

The European Union has published a directive aimed at improving building energy efficiency and reducing carbon emissions. EU Member States are required to transpose the directive (Directive (EU) 2018/844) by March 10, 2020.

The directive, published on June 19, 2018, replaces the previous directive on the energy performance of buildings, which was first introduced in 2002 and then recast in 2010. The directive, forms part of the Clean Energy for all Europeans legislative package and is designed to promote energy efficiency in both old and new buildings as well as encourage building renovation. The revised directive is one of the EU’s eight proposals to achieve the Energy Union targets.

Lawmakers will debate an amendment to include the country’s environmental commitments in Article 1 of France’s Constitution.

By Fabrice Fages

MPs in France have adopted an amendment to include a new paragraph in Article 1 of the French Constitution. The amendment reads:

“France acts towards the preservation of the environment and biological diversity, and against climate change.”

The Constitutional Law Commission of the National Assembly adopted the amendment on June 27, 2018, as part of France’s upcoming constitutional reform. A plenary session beginning on July 10, 2018 will debate the amendment.

The amendment represents an interesting shift from the previous constitutional reform proposal. The previous proposal addressed the protection of the environment and the fight against climate change via the modification of Article 34 of the Constitution.

The EU has agreed that one third of energy use should be from renewable sources and encourages the use of renewable electricity or biofuels sourced from waste rather than crops.

By Paul A. Davies and Michael D. Green

After 18 months of negotiations, the EU has increased its renewable energy target from 27% to 32% for the years 2020 to 2030. The European Parliament and Council will formally approve the agreement in the near future, so it can be set into EU law in the form of the EU Renewable Energy Directive (RED II).

The EU has agreed that by 2030, just under one third of energy use in the EU should be from renewable sources. The trade body for European energy utilities has described the deal as a “well-balanced compromise”. Miguel Arias Cañete, the climate and energy commissioner, noted that “the binding nature of the target will also provide additional certainty to the investors”.

The Circular Economy Package aims to “close the loop” of product lifecycles through greater recycling and re-use.

By Paul A. Davies, Eun-Kyung Lee, and Patrick Braasch

The Circular Economy Package includes four directives that were adopted by the European Parliament on 18 April 2018 (see Latham’s previous post) and by the EU Council on 22 May 2018. The directives were recently published in the Official Journal (OJ L 150, 14 June 2018), and entered into force on 4 July 2018 and Member States should implement the directives within a two year period.

The legislative package amends:

  • The Waste Framework Directive (2008/98/EC)
  • The Landfilling Directive (1999/31/EC)
  • The Packaging Waste Directive (94/62/EC)
  • The Directives on end-of-life vehicles (2000/53/EC), on batteries and accumulators and waste batteries and accumulators (2006/66/EC), and on waste electrical and electronic equipment (2012/19/EU)

The overall goal of the directives is to improve EU waste management. This will contribute to the protection, preservation, and improvement of the quality of the environment as well as encourage the prudent and rational use of natural resources. More specifically, the directives aim to implement the concept of “waste hierarchy”, which has been defined in Article 4 of the Waste Framework Directive. The waste hierarchy sets a priority order for all waste prevention and management legislation and policy which should make any disposal of waste a solution the last resort:

  1. Prevention
  2. Preparing for re-use
  3. Recycling
  4. Other recovery, e.g., energy recovery
  5. Disposal

The European Commission will submit a study and a proposal to reassess individuals’ right to challenge crucial decisions before EU courts.

By Rosa Espín and Leticia Sitges

The Council of the European Union (the EU) has recently issued a formal decision requesting that the European Commission submit a study to identify options for addressing identified non-compliance with the United Nations Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters dated 25 June 1998 (the Aarhus Convention). Additionally, to submit a proposal, if appropriate, to amend the current EU Regulation 1367/2006 (together, the Decision).

What is the Aarhus Convention?

The Aarhus Convention is a multilateral environmental agreement that will guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters. The three pillars of the Aarhus Convention are as follows:

The Innovation Fund will promote advanced low-carbon technologies to reduce greenhouse gas emissions and promote decarbonisation.

By Paul A. Davies and Michael D. Green

By the end of 2018, the European Commission will set up an Innovation Fund (the Fund) to aid decarbonisation. To achieve this, the European Commission will amend the EU Emissions Trading System (EU ETS) Directive via a delegated act. The EU ETS was created to reduce carbon emissions and incentivise companies to reduce their output, and covers around 45% of the EU’s greenhouse gas (GHG) emissions. Entities with access to the Fund from 2021 to 2030 (phase 4 of EU ETS) will include power and energy-intensive industrial sectors.

The Fund will build on support from the NER300 initiative — a large funding programme for innovative low-carbon projects. This support led to €2.1 billion being awarded to 38 innovative renewable energy projects and a carbon capture and geological storage (CCS) project. Money from the Fund will be used to help finance low-carbon technologies such as CCS, and will extend to both small and large-scale projects.

Measures aim to establish consistent criteria for sustainable investments, as well as clear market standards for investors.

By Paul A. Davies and Aaron E. Franklin

Overview

The European Commission (EC) has set out its first proposal for “concrete actions” to help the EU financial sector take the lead in establishing a greener economy and supporting the Paris Agreement. These legislative proposals, which were published on 24 May 2018, follow the release of the EC’s Action Plan on sustainable finance on 8 March 2018 (more information on the Action Plan is available in this Latham blog post).

If the changes are adopted, they would be implemented through a series of delegated acts to establish the environmental taxonomy, followed by a fitness check of EU legislation on public corporate reporting and amendments to non-binding guidelines on non-financial reporting. The EC would also adopt a prospectus for green bond issuances and would publish a comprehensive study on sustainability ratings and research. Finally, the EC would create ecolabels for financial products and explore possible measures to see how climate and environmental risks can be incorporated into banks’ risk management policies aligning with the EU taxonomy.

A recent Environmental Code amendment aims to invigorate sluggish legal processes delaying environmental project development.

By Paul A. Davies and Fabrice Fages

Third parties and local NGOs often bring legal action against environmental permits in France, hampering the development of environmental projects in the country. An example of a practical consequence is that the development of a wind farm takes on average between seven and nine years in France, versus three to four years in Germany. In order to limit the impact of drawn-out legal proceedings before administrative courts and allow projects to progress, a 2017 amendment to the Environmental Code (article L.181-18) now affords administrative judges broader powers to give more time and leeway to the authorities to correct a flawed decision or part of a decision before the court simply annuls it.

After neglecting to heed an initial warning, six Member States may face financial penalties if they do not reduce pollution levels.

By Paul A. Davies, Michael D. Green, and Alexander Wilhelm

The European Commission (EC) has referred the UK, France, Germany, Hungary, Italy, and Romania to the European Court of Justice (ECJ) for failing to adequately tackle and control air pollution in their respective jurisdictions. The Member States, the EC said, had not produced and delivered “credible, effective and timely measures to reduce pollution as soon as possible, as required under EU law”. The EC had already issued these Member States with a warning in January 2018. Polluted and toxic air is thought to cause over 400,000 early deaths each year in Europe. The actions against the UK, France, and Germany concern exceedances of nitrogen dioxide (NO2), while the actions against Hungary, Italy, and Romania target particulate matter (PM10).

The ECJ can impose significant fines stretching to millions of euros, for Member States that fail to remedy their behaviour.

In this blog, a more detailed analysis of the current position in the UK, France, and Germany is set out.

The Initial Strategy provides the first global climate framework for the shipping sector and will support Paris Agreement targets.

By Paul Davies, Janice Schneider, and Eun-Kyung Lee

Background

In April 2018, the Marine Environmental Protection Committee of the International Maritime Organization (IMO) adopted an initial strategy to reduce greenhouse gas (GHG) emissions in international shipping (Initial Strategy). The IMO is a United Nations agency with responsibility for the safety and security of shipping and the prevention of marine pollution from ships. The Initial Strategy represents the first global climate framework for shipping. In tangible terms, IMO aims to reduce the total annual GHG emissions by at least 50% by 2050 compared to 2008 levels, while simultaneously planning to phase GHG emissions out entirely.

Initial Strategy aims and measures

The Initial Strategy consists of (i) a framework for Member States outlining guidelines for the international shipping industry in the future and (ii) short- mid- or long-term measures to reduce GHG emissions. For this purpose, the Initial Strategy determines several “levels of ambition” for the international shipping sector. Levels of ambition directing the Initial Strategy are as follows:

  • Carbon intensity of ships to decline through implementing further phases of the energy efficiency design index (EEDI) for new ships
  • Carbon intensity of international shipping to decline — including reducing CO2 emissions per transport work, as an average across international shipping, by at least 40% by 2030, pursuing efforts towards 70% by 2050, compared to 2008
  • GHG emissions from international shipping to peak and decline