Transcript European Environmental Law

European Environmental Law
Lectures at Lomonossow University , Moscow
21-25 April, 2013
Professor Gerd Winter
University of Bremen, Germany
Overview
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General issues
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Horizontal environmental law
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History
Competences
Principles
Instruments
Environmental Impact Assessment
Access to information
Participation in procedures
Access to justice
Liability for damage
Ecolabel, Ecoaudit
Ecodesign
Sectoral environmental law (examples)
– U-Turn of energy policy: nuclear power, climate protection, renewables
– Waste
– Biotechnology
Introduction to EU Law
• EU = Union of 25 Member States, soon 26 (Croatia)
• Supranational organisation:
– Powers to make law in certain policy areas
– Law directly applicable in MS
– State like separation of powers
• Legislature: democratic election
• Executive: mostly by MS, but more and more EU administration
• Judicature: legal protection of citizens by MS and EU courts
• Development from economic integration to (imperfect)
social integration, including environmental protection
• Recent crisis: economic integration through monetary
union, but lack of margin for MS economic policy =>
crossroad more or less integration?
Sources for Studying EU Environmental Law
• Textbooks
– Ludwig Krämer, EU Environmental Law, 7th ed.2012
– Jan Jans, Hans Vedder, European Environmental Law 4th ed.
2012
• Legal acts:
http://eur-lex.europa.eu/RECH_menu.do
• Court decisions:
http://curia.europa.eu/juris/recherche.jsf?
Tension release of capitalist energy –
environmental stress
• Internal market (basic freedoms of movement of
products, labour, establishment, services, capital, 34, 45,
49, 56, 63) => increase of pollution from production,
products, waste, transportation
• Encouragement of construction of infrastructure (roads,
ports, airports, 170, energy networks, 194); support for
industrialisation of agriculture, 39 => loss of biodiversity
Two modes of environmental regulation
• Negative integration:
– environmental regulation by MS
– EU check whether reasonable or disguised protectionism (eg
Art. 34, 36 TFEU)
– Decision taken by courts in treaty infringement procedure or
individual claims
– Eg product quality regulation (lead in gasoline)
• Positive integration
– Environmental regulation by EU („harmonisation“) (eg (Art 114
TFEU)
– Opposing MS law set aside
– Possibly power of MS to go further (Art. 114 V TFEU)
Case on negative integration
• ECJ Case C-379/98 no. 68-81 Preussen Electra: feed-in
right for electricity from renewables, guaranteed
minimum price. Implicit exclusion of electricity from
foreign sources. => Art. 34, but justified by 36 and rule of
reason
EU compentences in environmental law
• Art. 191/192 for environmentally damageable activities
– MS can go further if measures are even more protective (Art.
193)
• Art. 114 for environmentally damageable products
– MS can go further if measures
• Based on new scientific knowledge
• Specific and new problem in the MS
• Approval by EU Commission
• Art. 11 Integration principle
EU compentences in environmental law
• Art. 191/192 TFEU
Art. 191: Union policy on the environment shall contribute to pursuit
of the following objectives:
— preserving, protecting and improving the quality of the
environment,
— protecting human health,
— prudent and rational utilisation of natural resources,
— promoting measures at international level to deal with regional
or worldwide environmental problems, and in particular
combating climate change.
Art. 192: The European Parliament and the Council, acting in
accordance with the ordinary legislative procedure […] shall
decide what action is to be taken by the Union in order to
achieve the objectives referred to in Article 191.
Case on Art. 193 TFEU (see EuGH C-203/96
Dusseldorp
• Bremer Fabrikant F will Altöl aus seinen Maschinen an polnischen
Verwertungsbetrieb V liefern. Behörde untersagt Verbringung, weil
Altölverwertungsanlage in Bremen ausgelastet werden müsse und
Verwertung mit weniger Reststoffen ermögliche. Anfechtung vor VG
• Rechtsgrundlagen:
– Deutsches AbfallG (fiktiv): Entsorgungsautarkie für alle Abfälle
– EU AbfallverbringungsVO
• Schreibt für ‚Abfälle zur Beseitigung‘ Möglichkeit der ‚Entsorgungsautarkie‘
vor, nicht aber für ‚Abfälle zur Verwertung‘
• RM des VA (nur materiell)
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Vereinbarkeit mit dt AbfallG?
Vereinbarkeit des dt AbfallG mit EU-VO?
Weitergehen nach Art. 193 AEUV?
Vereinbarkeit mit Art. 34/36 AEUV?
• Handelsbeschränkung?
• Rechtfertigung?
EU compentences in environmental law
• Art. 114
– The European Parliament and the Council shall, acting in
accordance with the ordinary legislative procedure and after
consulting the Economic and Social Committee, adopt the
measures for the approximation of the provisions laid down by
law, regulation or administrative action in Member States which
have as their object the establishment and functioning of the
internal market.
EU compentences in environmental law
• Case
– „Goldplating“: Abs. 5 u. 6 (example GMO –
General Court T-366/03 Öberösterreich)
• New scientific evidence
• Specific and new problem for MS
• Notification to and consent of Commission
EU compentences in environmental law
• Art. 11
– Environmental protection requirements must be integrated into
the definition and implementation of the Union’s policies and
activities, in particular with a view to promoting sustainable
development.
EU competences in environmental law
Fine tuning of relationship EU/MS
• Principle of conferral Art. 5 I, II
• Subsidiarity principle Art. 5 III
• Exclusive EU/shared competence
– Environment policy is a shared competence Art. 4
– The Member States shall exercise their competence to the extent that
the Union has not exercised its competence Art. 2
• Modalities of legislative procedure (sometimes unanimity in Council,
eg Art. 192 IIa)
• Category of legal act Art.
– Regulation
– Directive
• Safeguard clauses Art. 191
Principles of EU environmental law
• Content
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Sustainable development Art. 3 III, IV TEU
High level of protection Art. 191 TFEU
Precaution Art. 191 TFEU
Prevention Art. 191 TFEU
Source Art. 191 TFEU
Polluter pays Art. 191 TFEU
• Legal status
– Binding
– Margin of discretion
– Difference of situation: enabling or commanding
Sustainable development
• Art. 3 III TEU
The Union shall […] work for the sustainable development of
Europe based on balanced economic growth and price stability,
a highly competitive social market economy, aiming at full
employment and social progress, and a high level of protection
and improvement of the quality of the environment.
Sustainable Development: weak version
= 3 columns, a roof
Future Generations
Economy
Nature
Social
Welfare
Sustainable Development: strong version
= a fundament, 2 columns, a roof
Zukünftige Generationen
Soziale
Wohlfahrt
Wirtschaft
Natur
Sustainability: perverted Version
• BASF: Sustainable Profitable Performance
• ‚Ongoing profitable performance in the sense of
Sustainable Development is the basic requirement for all
our activities. We are committed to our customers,
shareholders and employees and assume a
responsibility towards society.‘
Principles: high level of protection
• Enabling: highest level
• Commanding: adequate level
• Case ECJ C-284/95 Safety High Tech: Competitor
complains that certain chemicals of competing company
have not been banned.
Precaution
• Cases Pfizer, BSE, Paraquat
– „Where there is uncertainty as to the existence or
extent of risks to human health, the institutions may
take protective measures without having to wait until
the reality and seriousness of those risks become
fully apparent.“
• Operator vs EU (Pfizer Case T-13/99)
• MS vs EU (negative) (BSE Case C 180/96)
• MS vs EU (positive) (Paraquat Case T-229/04)
• COM (2000)1: no carte blanche
Precaution
• From the „if at all“ of measures to the kind of
measures:
– Precautionary thresholds
– Precautionary means
• Best available technology (eg filters)
• IPPC Directive:
– Member States shall ... ensure that installations are
operated in such a way that:
• (a) all the appropriate preventive measures are taken against
pollution, in particular through application of the best
available techniques;
• (b) no significant pollution is caused;
Precaution
• Balancing of interests, especially role of cost effects
of precautionary measures => BATNEEC (best
available techniques not entailing excessive cost)
• IPPC Directive Art. 2 No. 11:
– „‘available’ techniques shall mean those developed on a
scale which allows implementation in the relevant industrial
sector, under economically and technically viable conditions,
taking into consideration the costs and advantages,...“
• Differentiation between risk assessment and risk
management
Prevention
• From ex post measures (criminal law, administrative
offenses, monitoring)
• To ex ante measures
– Permit, EIA
– Legal protection at ex ante stage
Legal forms of environmental law
• Forms
– Regulation: exhaustive; directly applicale within MS
– Directive: determination of objectives and discretion of means; to
be transformed into MS law; direct effect after expiry of
transformation deadline
– Decision: individual case; directly applicable by addressee
• Author
– Original legal act: Com/Council/EP
– Delegated legal act (‚non essential matters‘): Com (Art. 290 I
TFEU)
– Implementing legal acts: Com, committees of MS
representatives (Art. 291 II, III TFEU)
Instruments of environmental protection
• Regulatory instruments („command and control“, „direct and
determine“)
– Ex ante (preventive): legal and technical standards for production and
products, prior notification, prior permit
– Ex post
• repressive: punishment, liability, remediation
• curative: alteration of permit, enforcement order
• Economic instruments
– Charges for pollution
– Capping and trading pollution rights
– subsidies
• Voluntary instruments
– Committments (codes of conduct), agreements
– Environmental audit
– Environmental label
Horizontal environmental law
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Environmental impact assessment
Access to information
Participation in procedures
Access to justice
Liability for damage
Voluntary instruments
Environmental impact assessment
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Background Espoo Convention
Parallel to Russian concept
Directives 2011/92 and 2001/41
Characteristics
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Project EIA/ Plan and Programmes EIA
Scoping
Information to be submitted by operator
Alternatives
Additional information through public participation and own sources of
administrative agency
– Final document prepared by authority
– EIA to be taken into account; no final conclusion on the project/plan
– Court review on complaint by individual or association
Access to environmental information
• International background Aarhus Convention
• Active/ passive information flow administration – citizen
• Passive information = right of access important for info
which authorities would rather like to keep secret
• Directive 2003/4 for MS info, Regulation 1049/2001 for
EU info
Aarhus Convention
• CONVENTION ON ACCESS TO
INFORMATION, PUBLIC
PARTICIPATION IN DECISION-MAKING
AND ACCESS TO JUSTICE IN
ENVIRONMENTAL MATTERS
• done at Aarhus, Denmark, on 25 June
1998
Aarhus Convention
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Art. 4
Each Party shall ensure that …public authorities, in
response to a request for environmental information,
make such information available to the public
…including copies of the actual documentation
containing or comprising such information: Without an
interest having to be stated;
(a) In the form requested unless:
(i) It is reasonable for the public authority to make it available in
another form, in which case reasons shall begiven for making it
available in that form; or
(ii) The information is already publicly available in another form.
Access to environmental information
• No showing of legal interest => everyone‘s right
• Notion of public authority includes private entities with public
function
– ‘any natural or legal person having public responsibilities or functions, or
providing public services, relating to the environment under the control
of [an administrative agency]’ Art. 2 b) Dir 2003/4
• No prohibitive fees
• Exceptions: if disclosure has adverse effects on
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Legally provided confidentiality of proceedings of public authorities
Legally provided confidentiality of personal data
Legally provided confidentiality of commercial information
International relations, security, defense
• Exceptions to be constructed narrowly and weighed against public
disclosure interest
Confidential commercial information
• Defined in Art. 39 TRIPS
2. Natural and legal persons shall have the possibility of preventing
information lawfully within their control from being disclosed to, acquired
by, or used by others without their consent in a manner contrary to
honest commercial practices10 so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration
and assembly of its components, generally known among or readily
accessible to persons within the circles that normally deal with the kind of
information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the
person lawfully in control of the information, to keep it secret.
• Context competition law; in the context of environmental law
weighing against disclosure interest prescribed
• Emission information in no case to be kept secret
State secret
• Directive 2003/4 does not introduce the term of state
secret => specification international relations, public
security, national defense
• State secret a term for the internal administrative sphere
(how and what to earmark, what personnel shall have
access, etc). Legislation on disclosure, esp re
environmental protection, opens up weighing against
public interest. Thus, state secret broader than accepted
official secret.
• Case on secrecy of international relations CFI T-301/10
Sophie in‘t Veld vs Com
Participation in administrative procedures
• Definition: ‚notice and comment‘
• Functions of procedures
– Collection of information from different sources
– Influence by argument and pressure
• Constitutional background
– Participation as improvement of performance of public
authorities => no right of citizens
– Participation as protection of individual rights (health, property)
at early state in procedures=> right bound to individual interest
(conception of „bourgeois“)
– Participation as a democratic right => right not bound to
individual interest (conception of „citoyen“)
– Participation as representation of „bundled individual rights“,
„partial public interests“, „corporate democracy“, represented by
NGOs => right of collectives
• Conception of „civil society“ including „citoyen“ and
corporations (NGOs)
• Question: is there a civil society in Russia?
Participation in administrative procedures
• Legal approach: combination of individualist, democratic
and collective conception
– Democratic => public notice of project
– Individualist and collective => notice of details of project and ist
effects; right to comment
• International background: Aarhus Convention
• Article 6 on public concerned (including NGOs)
Each Party shall require the competent public authorities to give the public concerned
access for examination …free of charge and as soon as it becomes available, to all
information relevant to the decision-making referred to in this article that is available at
the time of the public participation procedure, without prejudice to the right of Parties to
refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4.
The relevant information shall include at least, and without prejudice to the provisions of
article 4:
(a) A description of the site and the physical and technical characteristics of the
proposed activity, including an estimate of the expected residues and emissions;
(b) A description of the significant effects of the proposed activity on the environment;
(c) A description of the measures envisaged to prevent and/or reduce the effects,
including emissions;
(d)…
(e) An outline of the main alternatives studied by the applicant; and
(f) …
7. Procedures for public participation shall allow the public to submit, in writing or, as
appropriate, at a public hearing or inquiry with the applicant, any comments, information,
analyses or opinions that it considers relevant to the proposed activity.
Participation in administrative procedures
• Directive 2003/35
– Prescribing participation in procedures of EIA and
concerning industrial installations
– Public at large must be informed of project
applications
– Public concerned (including NGOs) must be informed
about dossier including precise info on project and
effects; comments must be allowed and considered
– Public at large must be informed about final decision
– Foreign countries must be informed of projects having
external effects; public participation to be opened for
foreign public concerned
Participation in regulatory procedures
• No concrete requirement under horizontal EU law; but to
be found in sectoral law (eg prohibition and authorisation
of chemical substances under REACH Regulation)
• Aarhus Convention Art. 8:
Each Party shall strive to promote effective public participation at
an appropriate stage, and while options are still open, during the
preparation by public authorities of executive regulations and
other generally applicable legally binding rules that may have a
significant effect on the environment.
• Question: what about RF Law on Normative Acts?
Preclusion of participation; effects of procedural
failure
• Preclusion of court review of facts that could have been
submitted in the administrative proceedings: introduced
at MS level; compatibility with EU law doubtful
• Effects of procedural failure
– In principle: final decision unlawful
– Exception of irrelevant failure
• Essential procedural requirement (cf Art. 263 II TFEU)
• Other requirements: test of potential influence on final decision
– Rectification: until the end of administrative decision-making,
including complaint procedure; but only if alternative possible
(Case C-416/10 Križan: planning permission withheld in
authorisation procedure; rectified at second instance
admininistrative procedure)
Court review of administrative
action/inaction
• Criminal law (ex post)
• Administrative infringement law (ex post, moving towards
ex ante)
• Administrative law (ex ante)
Court
Admin
Publ. Prosec.
Operator
Neighbour
NGO
Court review of administrative action/inaction
• Function of court review
– Centralist conception (France: central state ensures legality of
subordinate authorities): => „objective“ checking of legality of
lower administrative bodies; broad concept of standing;
association action welcome
– Democratic conception: (India, Brazil etc.: courts as
countervailing power protecting the less powerful against
inactive administration): => „objective“ checking of legality of
lower administrative bodies; broad concept of standing;
association action welcome
– „subjective“ protection of individual rights (German tradition:
autocratic state (Obrigkeitsstaat) checked in terms of basic rights
=> plaintiff must substantiate encroachment on individual right
(health, property) => problem for third parties; no association
action
– To be considered: difference in density of court review
International law background: Aarhus Art. 9
• Combination of democratic and individualist conceptions
• On individuals:
Each Party shall, within the framework of its national legislation,
ensure that members of the public concerned
(a) Having a sufficient interest or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural
law of a Party requires this as a precondition,
have access to a review procedure before a court of law …to
challenge the substantive and procedural legality of any decision,
act or omission ….
• On NGOs:
… the interest of any non-governmental organization meeting the
requirements referred to in article 2, paragraph 5, shall be deemed
sufficient for the purpose of subparagraph (a) above. Such
organizations shall also be deemed to have rights capable of being
impaired for the purpose of subparagraph (b) above.
Court review of MS administrative action/inaction
• EU approach: distinguish between MS and EU
• Concerning MS: centralist conception (interest in
enforcement of EU law) = broad standing rights
– Projects subject to EIA/IPPC: Directive 2003/35 ensuring
standing for de facto concerned individuals and NGOs aiming at
environmental protection
– In general: Principle of effectiveness and equivalence
• Case ECJ C-237/07 Janecek: subjective right of neighbour to ask
for action plan for measures implementing air pollution thresholds;
acknowledged although concerned public not individualized
Court review of EU administrative action/inaction
• Competent Courts: General Court and Court of Justice
• Art. 263 IV TFEU:
‘Any natural or legal person may […] institute proceedings against an
act addressed to that person or which is of direct and individual concern
to them, and against a regulatory act which is of direct concern to them
and does not entail implementing measures.’
• Case CFI T-585/93, ECJ C-321/95 Greenpeace v Com: Com
subsidises 2 power stations on Canary Island. Neighbours and
Greenpeace appeal at CFI. CFI: no individual concern. ECJ: no
direct concern; possibility of action before MS courts with preliminary
questions under Art. 267 TFEU; no association action
• Improvement of access through Regulation 1367/2006: application
of NGOs for internal review of administrative acts; access to General
Court against answer, but „according to the relevant provisions of
the treaty“
Responsibility for environmental damage
• Categories
– Sanctions under criminal law => punishment for violation of
moral principles
– Sanctions under administrative offenses law => punishment for
violation of technical rules
– Payments for damage => Pricing environmental damage
– Charges/ taxes for utilization of natural resources (eg
groundwater, emissions) => pricing resource uses
– Liability for property damage => compensation for economic
costs of damage
– Liability for environmental damage => remediation of
environmental damage
Liability for property and environmental damage
• Traditional
– Fault based
– Environmental damage as property or health damage
• „Environmentalist“
– Non fault (national legislation on dangerous installations or
dangerous activies (GMO, product liability)
– Environmental damage as such
EU environmental liability
• Directive 2004/35
– Scope
• Personal: operators of occupational activities
• Material: environmental damage (water, soil, protected species and
habitats),
– Preconditions: adverse effect, not linked to property or health
(exception: soil), causality, non-fault
– Remedies
• Public law concept: power of administrative agency to order
• Remediation by operator or by agency at the cost of operator
• Access to justice for NGOs and affected persons
Voluntary instruments
• Ecolabel Regulation 66/2010
• Eco-Audit Regulation 1221/2009
Sectoral environmental law:
Change of energy policies
• Reasons
– Climate effects of fossil energy sources („carbon
society“): CO2 emissions from households, industry,
transport
– Industrialised agriculture (methane)
– Risk of nuclear catastrophies, unsolved problem of
waste disposal
– Shortage of fossil energy sources
– Environmental effects of oil/ coal/ gas extraction (eg
open pit mining, fracking)
Change of energy policies
• From fossil and nuclear to renewable sources. 4
strategies
– Stepping out of nuclear energy
– Reducing climate gas emissions
– Energy efficiency
– Supporting renewables; coping with adverse sideeffects
Stepping out of nuclear energy
• EURATOM aimed at fostering nuclear and setting safety standards;
but no command of introduction
• German legislation after Tchernobyl (1986) and Fukushima (2011):
schemes of phasing out
– Last timeline: immediate closing down of older 8 power plants; rest of 9
plants to be closed by 2021(after operation time of ~ 35 years)
– Problem of expropriation
• No „taking“ of property
• Indirect or regulatory expropriation?
• German constitutional court: historical change of policies allows dissolution
of property positions
– Problem of decommissioning and waste disposal
• Costs
• Safety
• Why Germany?
Reducing climate gas emissions; focus CO2
• Capping emission quantities of EU and Member States
– Kyoto Protocol: EU committed to 92 % of 1990 emissions by
2012; new „voluntary“ committment to 80 % of 1990 by 2020
(20/20/20 target)
– Council Decision 2002/358: burden sharing among MS; eg
Germany: 80 % = ~ 900 mio t per year
• Capping emissions of from individual sources
– 50 % for large combustion industries: „cap and trade“ (system of
allocation of emission rights with trading, based on Directive
2003/87; example of an economic instrument
– 50 % for small industry, households, transportation: various
directives applying command and control instruments
Cap and trade (large combustion industry)
• Overall quantity of the sector (~ 450 Mio t/a) to be
allocated (the ‚cap‘ element)
– First tranche: free of charge; grandfathering; minus 3 %;
– gradual introduction of auctioning (now 20 %, in 2025 100 %)
• Yearly surrender of emission rights (one allowance = 1 t)
corresponding to actual emission quantities
• Emission rights are tradeable (the ‚trade‘ element);
options of operator
– To invest in emission reduction and to sell rights
– Not to invest and surrender rights, if needed to buy additional
rights
– In addition: Acquire rights from investment in projects in other
countries that lead to emission reduction
• Clean development meachanism (CDM)
• Joint implementation (JI)
Cap and trade (Assessment)
• Target more or less reached, not by all MS but on average
• Reduction not due to the instrument but
– to the decline of industry in central Europe including GDR. economic
crises
– the current economic crisis
• Price per emission right very low (3-4 €); no incentive to invest in
reduction technology or change consumption behaviour
• Much more could have been achieved through phasing in ever
stricter caps, but „rights“ rhetoric assumes property in emissions
• Command and control would have been more efficient: emission
standards, environmental quality standards, technology
requirements, consumption standards
• Theoretical framework: commodification of the climate
• See my article in G. Winter, Aktualnye problemy ecologicheskovo
prava w epochu globalisatsi, ed Olga Dubovik, 2013
Energy efficiency
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Measures to reduce energy consumption
Directive 2006/32
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Indicative energy saving target of 9 % by 2015
Energy efficiency plans
Exemplary role of public sector
Competition of energy saving services and energy efficiciency improvement
measures
– Greening of fiscal instruments (taxes, subsidies)
– Meters measuring individual households‘ energy consumption
– Energy bills to inform about comparative consumption
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Directive 2010/31
– Standards for energy efficiency of new buildings and renovation of large existing
buildings
– All new buildings to be near zero-energy by 2020 and based on renewables
– Energy performance certificate to be provided when the building is constructed,
sold or rented
Renewable Energy Sources
• Directive 2009/28
• Target 20 % renewables by 2020, with 10 % for transportation
• Measures widely left to MS (subsidies, command and control,
economic instruments)
• Example Germany for electricity from renewables (wind, sun, water,
biomass):
– feed in right of producer
– fixed price at higher level than market price
– to be born by all consumers (renewables levy); increasing because high
input from renewables lowers the market price
• Problem biomass
– Industrialisation of agriculture; maize monocultures
– Sustainability criteria
Air pollution (exemplary for regulatory approach)
• Double approach
– Air quality (immission) thresholds
– Emission ceilings
• Air quality thresholds: Directive 2008/50
– MS to monitor present situationand identify problem areas
– Limit values (health) and critical levels (vegetation) fixed on EU
level (Annex XII/XIII), to be reached within certain terms
– Thresholds covering all emissions except for natural sources
– Air quality and action plans to be established for non-attainment
zones
Limit values and critical levels (Dir 2008/50 Annex XII)
(in µg/m3)
Limit value
(health)
Margin of
tolerance
Critical level
(vegetation)
SO2
350 per hour
125 per day
43 %
no
20 per year
NOx
200 per hour
40 per year
no
no
30 per year
Benzene
5 per year
no
CO
10mg p. day
no
PM10
50 per day
15 times per
year
Emission ceilings
• Directive 2001/81 National emission ceilings for SO2,
NOx, volatile organic compounds and ammonia
• Based on Gothenburg Protocol to UNECE Convention
on long-range transboundary air pollution
• Specified for different sources by
– Directive 2010/75 (IPPC) on industrial installations (BVT)
– Directive 2001/80 on large combustion plants (phasing in/out
concept)
– Directive 2000/76 on incineration of waste
– Regulation 715/2007 on emission standards for vehicles
Waste law
• Factual situation:
– „wild“ deposit sites, lack of landfill sites, leakages into groundwater
– toxic waste contaminating soil and groundwater, incineration causing air
pollution, exportation to low standard countries
– Valuable raw material wasted: iron, precious metals, wood
• 4 strategies introduced since 1989
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Prevention of waste generation => better products
Reuse, recycling, recovery of raw material or energy
Safety of disposal, safe incineration
Remedial action concerning contaminated sites
• Core legal acts
– Directive 2008/98, repealing Directive 75/442
The notion of waste
• Distinction ‚waste‘ vs ‚non-waste product‘ triggering different
regulatory regimes: waste is more densely supervised than
products.
– Eg: authorisation requirement for treatment of waste (not of treatment of
products)
• ‘waste’ means any substance or object which the holder discards or
intends or is required to discard (Art. 2 Dir 2008/98
– No matter if the object has economic value, eg discarded but still
operable PC
– By-products (direct use possible)
– End of waste status (outcome of recovery operation)
– Faecal matter, straw etc from agriculture and forestry excluded from
scope
Waste hierarchy
• Art. 4 Dir 2008/98
– 1. The following waste hierarchy shall apply as a priority order in waste
prevention and management legislation and policy:
(a) prevention;
(b) preparing for re-use;
(c) recycling;
(d) other recovery, e.g. energy recovery; and
(e) disposal.
– 2. […] Member States shall take measures to encourage the options
that deliver the best overall environmental outcome. This may require
specific waste streams departing from the hierarchy where this is
justified by life-cycle thinking on the overall impacts of the generation
and management of such waste.
• Art. 28, 29 Dir 2008/98
– Waste management plans
– Waste prevention programmes
Prevention
• Example hazardous substances in electrical and electronic
equipment. Directive 2002/95 Art. 4:
Member States shall ensure that, from 1 July 2006, new electrical and
electronic equipment put on the market does not contain lead, mercury,
cadmium, hexavalent chromium, polybrominated biphenyls (PBB) or
polybrominated diphenyl ethers (PBDE).
Phasing out schemes concerning various products(Annex)
• Example waste prevention in industrial installations. Directive
2010/75 Art. 11
Member States shall take the necessary measures to provide that
installations are operated in accordance with the following principles:
(d) the generation of waste is prevented in accordance with Directive
2008/98/EC;
Reuse, recycling, recovery of energy
•
Vehicles. Directive 2000/53
Art. 7: quota
2. Member States shall take the necessary measures to ensure that the following
targets are attained by economic operators:
(b) no later than 1 January 2015, for all end-of life vehicles, the reuse and recovery
shall be increased to a minimum of 95 % by an average weight per vehicle
and year. Within the same time limit, the re-use and recycling shall be
increased to a minimum of 85 % by an average weight per vehicle and year.
Art. 5: collection, treatment
1. Member States shall take the necessary measures to ensure:
— that economic operators set up systems for the collection of all end-of life vehicles and,
as far as technically feasible, of waste used parts removed when passenger cars are
repaired,
— the adequate availability of collection facilities within their territory.
2. Member States shall also take the necessary measures to ensure that all end-of
life vehicles are transferred to authorised treatment facilities.
3. Member States shall set up a system according to which the presentation of a
certificate of destruction is a condition for deregistration of the end-of life
vehicle.
Reuse, recycling, recovery of energy
•
Paper, metal glass, plastic. Directive 2000/53: : Separate collection,
recycling quota per weight. Art. 11
Member States shall take measures to promote high quality recycling and, to this
end, shall set up separate collections of waste where technically, environmentally
and economically practicable and appropriate to meet the necessary quality
standards for the relevant recycling sectors.
Subject to Article 10(2), by 2015 separate collection shall be set up for at least the
following: paper, metal, plastic and glass.
Member States shall take the necessary measures designed to achieve the
following targets: (a) by 2020, the preparing for re-use and the recycling of waste
materials such as at least paper, metal, plastic and glass from households and
possibly from other origins as far as these waste streams are similar to waste from
households, shall be increased to a minimum of overall 50 % by weight;
•
Packaging. Directive 94/62 fixes recycling/incineration quota (eg 60 %
paper and board) as well as take return duties (combined with payments
by economic operators
Safe disposal
• Mixed municipal waste:
– MS must establish an integrated and adequate network of waste
disposal installations and of installations for the recovery of
mixed municipal waste collected from private households, Art.
16.1 Dir 2008/98
– The network shall ensure self-sufficiency (on EU scale), and
proximity, Art. 16.2 u. 3 Dir. 2008/98
– The installations must operate environmentally safe (Art. 12, 13
Dir 2008/98)
– Costs: waste producer pays for waste disposal, but MS may
make producers and distributors of products bear the costs
(example packaging regime in Germany) (Art. 14 Dir 2008/98)
Hazardous waste
•
•
•
•
Production, collection, transportation, storage and treatment of hazardous
waste must be safe for the environment and human health (Art. 17 Dir
2008/98)
No mixing or dilution of hazardous waste (Art. 18 Dir 2008/98)
Labelling of hazardous waste (Art. 19 Dir 2008/98)
Responsibility for waste management (Art. 15 Dir 2008/98)
– In principle with waste producer; not discharged by transfer to treatment or
disposal
– But subject to MS legislation which may introduce delivery scheme to private or
public collector
•
•
Costs: waste producer pays for waste management (incl treatment and
disposal), but MS may make producers and distributors of products bear the
costs (Art. 14 Dir 2008/98)
Undertakings treating hazardous waste, the producers, undertakings
collecting or transporting, dealers must keep chronological record of the
quantity, nature and origin of the waste, the destination, frequency of
collection, mode of transport, treatment method, and shall make that
information available, to the competent authorities (Art. 35 Dir 2008/98)
Treatment for recycling, recovery, disposal
• Treatment must be safe for health and environment
• Permit requirement (Art. 23 Dir 2008/98)
• Register of undertakings managing waste (Art. 26 Dir
2008/98)
• Minimum standards (Art. 27 Dir 2008/98)
• Inspection (Art. 34 Dir 2008/98)
EC legislation on green
biotechnology
Focus on genetic modification
What is genetic modification?
Art. 2 (2) Directive 2001/18:
GMO means an organism, [...] in which the genetic
material has been altered in a way that does not occur
naturally by mating and/or natural recombination.
3 organisms involved:
- host organism: formation of new combinations of
genetic material
- donor organism: providing nucleic acid molecules
- vector organism (virus, bacterial plasmid) used for
transportation into host organism
• (Economic) Benefits to Society
– Improved products
– Improved production
– Some costs involved
• Risks to human health and environment
– Risks from products
– Risks from production
Benefits to society: improved products
– designed food (nutritional value)
– designed feed (accelerated growth)
– designed industrial plants and animals (energy
saving, medicinal substances)
– designed microorganisms
• bacteria (e.g. waste treatment)
• virusses
Benefits to society: improved production
– herbicide resistance => simplification of treatment
with chemical herbicides
– insecticide properties => avoidance of pesticides
– drought tolerance => extension of cultivation
– improved nitrate intake => accelerated growth
– Costs to society:
– agroindustry (loss of employment)
– terminator technology excludes use of crop as seed
Presentation 07/EFSA meeting
Risks to human health and environment:
GM products
• human health:
– toxicity (< from insecticide property)
– allergenicity
– gene transfer to bacteria in digestive tract (< from
antibiotica resistence)
• environment
– spillover from transportation
– introduction into environment as waste
Risks to human health and environment:
production with GMOs
– direct effects on nature (effects of GMO)
• targeted effects on parasites and predators =>
ecosystem
• side effects on parasites and predators => ecosystem
(e.g. monarch butterfly feeding on crosspollinated
blossoms
– indirect effects on nature
• growing wild of GMO
• vertical gene transfer (to relatives, e.g. rape: adoption of
eg herbice resistance, insecticidity, terminator genes)
• horizontal gene transfer to other species, especially
properties taken from bacteria such as antibiotics
resistance
– indirect effects through change in cultivation
• increase in use of herbicides => loss of biodiversity
• pressure towards single brands => loss of biodiversity
EU and US regulatory approaches
US
piggy-back:
Checking of GMO risks attached to existing health and
environmental protection regimes. „One door one key“
EU
separate track:
Production and marketing of GMOs subjected to specific
regimes. „One door, two keys“ (exception: drugs)
US and EU philosophies
• US
– nature as tradeable good
– culture of experimentation
• EU
– nature as sanctified good
– culture of precaution
• And China?
GMOs in contained use
Directive 90/219 as amended
• GM uses classified in 4 risk classes
• Control regime tailored according to risk class
– Negligible risk => notification of first use
– Low risk => notification of first and subsequent use
– Moderate and high risk => prior consent to first and
subsequent use
GMOs in contained use
• Public participation in licensing procedure in
some Member States, eg Germany
• Access of the public to information, including
– the general characteristics of the GMOs, name and
address of the notifier, and location of use,
– class of contained use and measures of containment,
– the evaluation of foreseeable effects on human health
and the environment
• Legal standing for operators and neighbours
Deliberate (experimental) release of GMOs
Directive 2001/18 as amended, part B
• Notification and prior consent required
• Procedure:
– Application with environmental risk assessment
submitted to MS authority
– Forwarding of summary notification to Commission
and other MS; right to comment
– Publication of summary notification; right of public to
comment
– Review of risk assessment and decision by MS
Deliberate (experimental) release of GMOs
• Access of the public to information, including
–
–
–
–
–
general description of the GMO,
name and address of the notifier,
purpose of the release,
location of release and intended uses;
methods and plans for monitoring of the GMO and for
emergency response
– environmental risk assessment.
Deliberate (experimental) release of GMOs
Legal standing
• of the applicant and
• individual persons possibly adversely affected
(eg neighbouring farmers)
Placing on the market of GMOs (general)
Directive 2001/18 as amended, part C
• Notification and prior consent required
• Application submitted to MS authority
• Assessment report by MS authority
• Forwarding of summary notification and assessment
report to Commission and other MS; right to
comment
• Publication of summary notification and assessment
report; right to comment
• Decision of Commission in case of divergent MS
opinions
• Decision of MS following Commission decision
Placing on the market of GMOs (general)
• Authorisation valid for all MS
• Access of the public to information, including
–
–
–
–
–
general description of the GMO,
name and address of the notifier,
purpose of the release,
location of release and intended uses;
methods and plans for monitoring of the GMO and for
emergency response
– environmental risk assessment.
Placing on the market of GMOs (general)
Legal standing
• of the applicant and
• but not of third parties (consumers etc.)
Placing on the market of GMOs: Food and Feed
Regulation 1829/2003
• Procedure
– Application with environmental risk assessment at MS
authority
– Forwarding to EFSA (Europ.Food Safety Authority)
and othet MS; right to comment
– Opinion of EFSA
– Application and opinion to be made public; right to
comment
– Decision of Commission after voting of MS committee
Placing on the market of GMOs (food and feed)
• Access of the public to information, including
–
–
–
–
–
general description of the GMO,
name and address of the notifier,
purpose of the release,
location of release and intended uses;
methods and plans for monitoring of the GMO and for
emergency response
– environmental risk assessment.
Placing on the market of GMOs (food and feed)
Legal standing
• of the applicant
• but not of third parties (consumers etc.)
Placing on the market of GMOs: appraisal
• MS majority critical of GM-technology blocked
approval of GMOs for 5 years (moratorium)
• Complaint of US, CAN e.a. at WTO
• Reg 1829/03 shifts approval competence for
food, feed and seeds to EFSA and Commission
• Sept. 2006 Panel report: moratorium in breach
of SPS agreement
Risk assessment methodology
Environmental risk assessment
– To be submitted by applicant; assessment report by
competent authority
– Direct effects (toxicity of crop for consumer; for target
and non-target species)
– Indirect effects on nature (vertical and horizontal gene
transfer)
– Indirect effects through cultivation (loss of
biodiversity)
Monitoring plan
• Deliberate release: submission of monitoring
plan compulsory
• Placing on the market: submission of
monitoring plan „when appropriate“
• Determination of monitoring duties in
authorisation
Substantive criteria
Art. 4 Dir 2001/18: Member States shall, in accordance with
the precautionary principle, ensure that all appropriate
measures are taken to avoid adverse effects on human
health and the environment
• Precaution
• No adverse effects
• Costs ?
– Choice of alternatives
– Weighing of benefits?
Co-existence: reasons and measures
• Cross-pollination may affect neighbours´ crop
• Economic loss due to consumer preference in
non-GM products (even in case of no adverse
effect on health and environment)
• 2 measures ensuring co-existence
– Commission Recommendation of July 2003 on MS
measures ensuring co-existence of GM-farming
together with conventional and organic farming
– Regulation 1830/2003 on traceability and labelling
Co-existence: cooperation of farmers
Duties of GM-farmer:
• to inform a register on where he uses GM seeds
• to inform neighbouring conventional and organic
farmers
• To keep safety distance between fields
• (according to some MS laws: To compensate
economic loss of neighbouring farmer in case of
cross-pollination
Co-existence: labelling of products
Duties of traders:
• For products consisting of or containing
GMOs
– Labelling for end-consumers
– written information including unique identifier for
downstream-users (traceability)
• De minimis threshold: 0,9 % adventitious and
technically unavoidable presence of GMOs in
products
Export of GMOs
•
•
•
•
Regulation 1946/2003, implementing CartagenaProtocol on Biosafety to CBD
Applicable to export of GMOs by EU to third states
GMOs for deliberate release
– information of import state prior to export
– Consent of import state
GMOs for food and feed use
– If authorised in EU and authorisation notified to
Biosafety Clearing House: free export
"Cap and Trade" and Other Means of Ensuring
Societal Resilience in Times of Resource
Scarcity
Cap & trade and resilience
• Caution concerning transfer of nature system concepts
to society and law
– e.g. survival of fittest => social Darwinism
– e.g. autopoiesis => deregulation => financial crisis
Nature and society interact but are different (reflexivity)
• Risk of becoming shortlived catchword which is „defined“
rather than induced from reality; mere new label for
ongoing research
• What is the core - not already contained in notions of
integration, cycles, ecosystem, sustainability?
seriousness of danger and human causation; need to
consider more radical alternatives
Cap & trade and resilience
• Cap and trade radical new idea
• What is it and how does it perform?
• Two options for criticism
– Bottom up complex self-regulation
– Strengthening command and control elements
Elements of Cap (Allocate) and Trade
•
•
•
•
Scarce resource (or resource service) due to overuse
Determination of use rights (credits, allowances)
Allocation of use rights (assigned amounts)
Tradeability of use rights („cap and trade“) or nontradeability („cap and use“)
• Holders of rights can be states and individuals
Examples: fisheries
• International
– weak instruments for quota setting: Fisheries Commissions for
high sea regions; coastal states
• EU
– Overall quotas for fisheries („TACs“) by Council
– Allocation to MS (grandfathering); tradeable
– Individual quota of fishers; not tradeable except in NL
• Experience
– failure
• TACs too high; politics > science (ICES)
• Quota in general exploited; some unused quota expire
Example ozone layer
• International
– Vienna Convention of 1985, Montreal Protocol of 1987, as
amended: Overall quota for production and use of ozone
depleting substances; tradeable among states
– 1987: 50% in 12 years; 1990: 85 % in 13 years; 1992: 100 % in 9
years (i.e. by 1996)
• EU
– overall quota for actors; tradeable
• Experience
– successful phasing out of emissions; hardly any trading
Production of ozone depleting substances
in EEA member countries, 1986-2007
UNEP 2009
Example acid rain (sulfur dioxide – SO2)
• International level
– Basis UNECE Convention on Long Range Transboundary Air
Pollution (LRTAP) plus subsequent Protocols
– Caps: 1985: 30 % in 8 years; 1994: 62 % in 25 years: 1997: 75
% in 15 years (i.e. by 2010)
– No trading
• EU
– National emission ceilings (NEC)
– Implementation by command and control (stick & carrot)
• sector specific BAT for processes and products
• EQOs
• subsidies
• Experience
– Successful phasing out of emissions
EEA 2010, p. 10
Example Climate Protection
• International
– Kyoto-Protocol 1997: 5 % in 15 years (i.e.by 2012); different
commitments of states (assigned amount units, AAU)
• EU
– 8 % bubble broken down among MS
– MS AAUs tradeable
• Member States
– quota allocated to individual actors; tradeable
– acquisition of additional quota through
• joint implementation (JI) with project in other Kyoto state => ERU
(emission reduction units)
• clean development mechanism (CDM) with project in non-Kyoto
state => CER (certified emission reduction unit)
• Experience
– Target unambitious; not even reached
Current progress towards EU-15 Kyoto target
- 20 %
- 30 %
EEA 2009, p. 75
Understanding cap and trade
• Two questions
– how to determine caps
– whether to make allowances tradeable
• Distinguishing 2 levels
– states
– individuals
How to determine quota: level of states
• De ratione
– Overall quota to be set acccording to ecological necessity
– Distribution according to state of national economies; pioneering
can stimulate innovation
• De facto:
– Ecological necessity: ozone and acid rain regimes
– Feasibility for national economies; sometimes windfall profits:
TAC, climate
– EU slightly pioneering
• De iure:
– Duty of states to protect? => resource = common concern,
common good? Int‘l customary law?
– Allocation of shares => Equality? Of what? Citizens? Historical
uses with joint but differentiated responsibility?
How to determine quota: level of individuals
• De ratione
– Options: benchmarking (BAT) or pricing (auctioning)
• De facto
– allocation for free (grandfathering with weak elements of
benchmarking); in future auctioning
• De iure
– Basic rights of resource use => expropriation? Freedom of
legislator to redefine property
– Discretion of legislator to protect resource?
• objective duty? public interest, trust
• subjective right of third parties to demand protection; problem of
deference of courts to administrative discretion
– Allocation of shares => equality principle: different treatment
permissible if based on sound reason (e.g. benchmarking)
Whether to make quota tradeable: level of states
• De iure
– Tradeability in fisheries, ozone and climate regimes, not in acid
rain regime
• De facto
– Hardly practiced in fisheries and ozone due to extreme scarcity
of resource
– Widely practiced in climate regime, see eg Spain
• De ratione
– States are political entities, not traders on emission markets
(example UK: no sales of surplus AAU planned)
– Should be confined to a safety valve in cases of hardship
– Otherwise cheating on climate abatement; mistrust
Planned purchase of AAU by Spain
EEA 2009
Gap between average annual emissions in 2003–2007 (light blue) (or
2004–2008 (dark blue)) and initial assigned amounts in EU-15
EEA 2009, p. 74
Whether to make quota tradeable:
level of individuals
• De iure
– Tradeability in climate and ozone regime, not in fisheries and
acid rain regimes
• De facto
– Hardly practiced in ozone regime
– Widely practiced in climate regime; even more so in post Kyoto
round (50 % of reductions)
• De ratione
– Emission allowances exhaust assigned quota
• difference with staying allowances or threshold values
– Possibility of avoidance of duty to reduce emissions through
• exploitation of cheaper abatement opportunities (trade, JI)
• importation of quota into the system (CDM)
• Distortions through speculation
Kyoto compliance equation
Real emissions
Allowable emissions
'initial assigned amount'
+
‘net LULUCF removals'
(RMU)
2008–2012 total GHG
emissions
≤
+
‘acquisition of CER by
individuals'
+
‘purchase by
governments of AAU '
Kyoto compliance equation
• Activities on what side of equation does correspond to
principle of joint but differentiated responsibility?
– Real reduction of emissions
– Inflation of allowable quota
• Initial emission quota too high
• Acquisition of quota through CDM
• Government purchase of AAUs
Summary
• Quota setting needed in times of scarce resources
• Realistic perception of international quotas: negotiated,
not science based
• Trade in state quota should be excluded except in
situations of hardship
• CDM should be seriously capped in order to trigger
innovation within EU, or imported CERs should be
deducted from state quota
• Tools must be designed to trigger additional reductions:
exclusion or confinement of tradeability (benchmarking)
• Theoretical frame: cap necessary, but trade tending to
commodify climate rather than protecting it
• Further reading:
G. Winter, Rationing the Use of Common Resources:
Problems of Design and Constitutionality, in: T. Prosser, D. Oliver
(eds.) In the Regulatory Laboratory, OUP forthcoming
G. Winter, The Climate is no Commodity: Taking Stock of the
Emissions Trading System, in: Journal of Environmental Law 2010,
pp. 1 – 25.
Climate protection (exemplary for capping and
trading emission rights)