Scaling up the development of renewables is urgent and imperative. But doing so at the expense of environmental safeguards and democratic checks will create significant legal uncertainty and trigger litigation at the local level.
Today’s proposal curtails environmental assessments that provide fundamental nature and social safeguards and proposes measures that de facto amend cornerstone EU environmental regulation.
Although labelled as ‘bridge’ legislation until the Renewable Energy Directive (RED) reforms are in force, this emergency proposal introduces partially incompatible solutions with the RED revision currently being debated in the European Parliament and the Council. Establishing different rules from those being negotiated in RED not only interferes with the ongoing democratic decision-making process and may lock in measures but also risks creating significant legal uncertainty for renewable energy developers.
Legal uncertainty is the last thing that will create quick fixes enabling faster renewables roll-out. This proposal does not provide ‘emergency’ quick solutions – shorter deadlines in themselves do not address the actual challenges of improving administrative and technical capacity and finances. On the contrary, they will lead to non-compliance with legal safeguards, poor permits and lengthy legal problems and social backlash later down the line.
It is also unclear in the proposal how the continuous obligations of the Directives will apply to projects once the one-year bridge is lifted again. Particularly the proposal to render any killing of species protected under the Birds and Habitats Directives lawful as long as undefined ‘appropriate mitigation measures’ are adopted amends these cornerstone Directives without any assessment or democratic say. While monitoring obligations were added at the last minute, these will likely be insufficient to prevent harm, to begin with.
Cosimo Tansini, Policy Officer for Renewable Energy at the EEB said:
“Accelerating the deployment of renewable energy capacity in the EU is pivotal to meet our climate goals and respond to the current energy crisis in the medium to long term. To that end, streamlining and simplifying permitting procedures are much-needed elements of reform. Emergency policy responses should aim at laying the ground for those reforms and not simply at bypassing environmental legislation, considering the risks of legal challenges and social resistance that the latter would likely spark.”
Laura Hildt, Policy Officer for Biodiversity at the EEB, said:
“Overall, from a legal perspective, the proposed measures seem neither appropriate, nor proportionate, nor do they seem to reflect ‘a spirit of solidarity’ that is the basis of the Art.122 TFEU powers – the proposed Regulation thus likely exceeds the Treaty provision it is based on. A lack of competence, breach of the Treaties or a breach of the principle of legal certainty could provide grounds for the Parliament to bring an action of annulment against this emergency Regulation.”
In the midst of a mass extinction that is fundamentally intertwined with the climate crisis, we need to pave the way to win-win renewable energy deployment solutions that reduce greenhouse gas emissions while protecting and enhancing the EU’s ecosystems. Renewables roll-out can be accelerated by ensuring better implementation of environmental assessments and tackling administrative bottlenecks – i.e. by fostering digitalisation of procedures and establishing one-stop-shops for project applicants – and improving resources in all levels of competent authorities for both permitting and environmental assessments.
Reducing the risks of legal challenges and socio-political resistance to new renewable projects is also key, thus involving self-consumers and upholding the role of community solutions is fundamental to achieving a quick and just energy transition.
Notes to Editors
Today, the European Commission published a proposal for an emergency Council regulation on accelerating the deployment of renewable energy following the conclusions of the European Council held on 20-21 October. The proposal, based on article 122 TFEU – which allows the EU to take emergency measures “in a spirit of solidarity between Member States” – aims at tackling the economic and social implications of the current energy crisis through fast-tracking the simplification of renewables permitting procedures.