European Environmental and Public Law

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The Coal Commission’s phase-out proposal includes a €40 billion federal spending package for affected states.

By Jörn Kassow and Patrick Braasch

A German government-appointed body, known colloquially as the “Coal Commission”, has agreed to end coal-fired power generation by 2038. In an effort to meet Germany’s climate goals under the Paris Agreement, the Coal Commission proposes to gradually reduce Germany’s current coal power capacity of 42.6 GW to 30 GW by 2022 and 17 GW in 2030. A review is scheduled in 2032 to decide whether to bring forward the final phase-out from 2038 to 2035.

Coal-burning provided for 40% of Germany’s power mix in 2017, which is well above the EU-28 average of 21% in 2016, and was exceeded only by Bulgaria (45%), Greece (46%), the Czech Republic (54%), and Poland (81%). Coal-fired power plants accounted for 28% of Germany’s total CO2 emissions in 2016, while generating 70% of the energy sector’s total emissions in the same year. Germany will also close its last nuclear plants in 2022, which, as of 2017, still provided for 12% of the power mix. All considered, the country will see a fundamental change in its energy production landscape in the coming years.

Waste producers must comply with new criteria and procedures for objects and products to benefit from end of waste status.

By Paul Davies

The French government has developed many measures to foster circular economy approaches. Most recently, a Ministerial Order of 11 December 2018 (Order) sets out criteria and procedures to end the waste status of certain objects and chemical products, to encourage their preparation for re-use.

The French Code of the Environment[i] defines “preparing for re-use” as “checking, cleaning or repairing recovery operations, by which products or components of products that have become waste are prepared so that they can be re-used without any other pre-processing.”

The Order requires that the objects and products meet specific criteria in order to benefit from the end of waste status. The criteria relate to:

  • The nature of the object or product
  • Techniques and treatment processes
  • Qualities and properties of objects and products resulting from such treatments
  • Contractual conditions subject to which such objects and products will be sold
  • Operator’s obligations in relation thereto (traceability)

Four NGOs launch innovative action claiming state has not met COP21 objectives.

By Paul A. Davies and Michael D. Green

On 17 December 2018, four NGOs filed legal action against the French state. In the legal action, the NGOs argued that the state has not met the short-term climate change objectives set at COP21. The NGOs — Greenpeace France, Oxfam France, the Fondation pour la Nature et l’Homme (FNH), and Notre Affaire à Tous — simultaneously launched an online petition to involve citizens in the action, now nearing an unprecedented two million signatures to date.

In accordance with the French Administrative Justice Code, the procedure for the legal action has two prongs. First, the claimants submitted a preliminary demand (demande préalable) to the Prime Minister and to no less than 12 government members seeking damages for: (i) moral harm, (ii) moral harm suffered by their members, and (iii) ecological prejudice suffered by the environment. (For more information on ecological prejudice, see Latham & Watkins’ blog post “The Notion of ‘Ecological Prejudice’ Now in the French Civil Code”.) If the state does not respond within two months of the preliminary demand, the claimants intend to file an indemnification claim before the Administrative Tribunal of Paris in March 2019. The claimants intend to allege causation between the state’s lack of action and the acceleration of climate change.

The deal establishes rules and guidelines for how governments will track, report on, and verify emissions-cutting efforts.

By Jörn Kassow and Patrick Braasch

Delegates from 196 countries and the European Union convened in Katowice, Poland, in December for two weeks of negotiations on creating a common rulebook for putting the Paris Agreement into practice.

The Paris Agreement, adopted in 2015, is the first multilateral agreement on climate change that covers almost all of the world’s greenhouse gas emissions. It provides for a long-term goal of limiting global warming to below 2°C above pre-industrial levels and agrees on a general mechanism to implement this goal. However, many practical (and often technical) questions were left open at the time of drafting. As envisaged by the Paris Agreement, the Conference of the Parties (COP) is responsible for developing implementation guidelines to put the climate change goals into action. The Katowice Climate Change Conference (COP24), which was held from December 2 to 15, agreed on a set of rules and guidelines for how governments will track, report on, and verify emissions-cutting efforts. These rules are designed to ensure that all countries are held to common standards and must be transparent when reporting on their efforts and accomplishments in lowering greenhouse gas emissions.

The growth in the level of undertakings throughout 2018 tallies with a general increase in environmental enforcement.

By Paul A. Davies and Michael D. Green

The Environment Agency has released data indicating that enforcement undertakings in England and Wales reached more than £2.2 million in 2018 — the highest-ever levels within a single year. The amounts raised under these undertakings were given to projects and charities that will benefit the environment and assist in cleaning up parks, rivers, and beaches. In addition, the enforcement undertakings include voluntarily agreed binding commitments to carry out remediation and/or other corrective action.

Enforcement undertakings are voluntary, legally binding agreements that regulators can use if they have reasonable grounds to suspect that an offence has been committed. These undertakings are one of the enforcement tools available to the Environment Agency, Natural England, and Natural Resources Wales in relation to potential environmental offences. Such offences include those relating to breaches of environmental permitting regulations, breaches under producer packaging requirements, and breaches of regulations concerning the discharge of wastewater.

The report supports the efforts of the EU’s Seventh Environment Action Programme.

By Alexander Wilhelm

According to a report prepared by the Joint Research Centre (JRC) — the European Commission’s science and knowledge service — countries across Europe are making progress on tackling soil contamination. The report[i] states that the management of contaminated sites in Europe has improved substantially. The survey prepared by the JCR scientists included 39 countries, of which 25 are EU Member States. Within the EU there are an estimated 2.8 million sites where artificial surface indicates that polluting activities have occurred in the past. According to national and regional inventories of countries that replied to the report’s questionnaire, more than 650,000 sites are registered where polluting activities took or are taking place. The number of remediated sites or sites under aftercare measures has increased from 57,000 to 65,500 in the last five years. Although these inventories are more accurate than ever before, investigations of more than 170,000 sites are still pending.

Soil contamination means reduced soil quality because harmful substances resulting from human activity are present. In general, such contamination violates private or public interests, and can even harm human health or the environment. According to the report, mineral oils and heavy metals are the most frequent contaminants. The excavation and the off-site disposal of contaminated plots are the most frequently used remediation techniques — also known as “dig-and-dump.” With the help of the provided data, JCR scientists have revealed that an average of €4.3 billion is spent to tackle soil contamination in the surveyed countries, of which more than 42% is taken from public funds. According to the report, this is due to the divergent application of the “polluter-pays” principle, which is applicable to historical contamination only in a few countries. Those differences in the legal treatment of historical contamination should be assessed carefully not only by the current owner, but also by any prospective buyer.

Individuals join growing global trend of citizens bringing climate change litigation in a bid to hold governments to account.

By Paul A. Davies and Michael D. Green

The European General Court has agreed to hear a legal challenge to EU climate legislation for inadequate targets for reducing climate change. Ten families from around the world brought a petition claiming that EU legislation offered insufficient protection, posing a threat to their human rights. The European Parliament (EP) and European Union Council (Council) likely will respond to the petition within approximately eight weeks.

The case is unprecedented in the EU. The 10 families include citizens from Kenya, Fiji, Portugal, Germany, France, Italy, Romania, and the Saami Youth Association Saminuorra (in Sweden). Significantly, though some of these individuals live outside the EU, they are claiming to have EU human rights. This is because the actions that they claim breach these rights take place in the EU, in particular, as a result of excessive greenhouse gas emissions. EU Member States are cumulatively the third largest global emitter of greenhouse gases (GHG).

Initiative will advance the UK’s Paris Agreement targets by serving as a “one-stop shop for world-leading climate science, and for capital.”

By Paul A. Davies and Michael D. Green

UK Chancellor, Philip Hammond, has announced plans to launch a Green Finance Institute (GFI), through funding from both the UK government and the City of London Corporation. The initiative aims to help the UK reach its climate targets under the Paris Agreement by developing and promoting investment in the green finance market, while bolstering the future of the UK’s financial services sector. According to the Chancellor, the establishment of the GFI will mean that “firms from across the world can access our one-stop-shop for world-leading climate science, and for capital.”

The move reflects recommendations from the Green Financial Taskforce that were published in a March 2018 report. In the report, the Green Financial Taskforce suggested establishing a specific institute with the purpose of promoting green finance in order to expedite and enhance sustainable finance in the UK.