I am very pleased that we have a new issue of RELP in our hands and on our screens.
This edition comes out at a time of deep crises in Europe and beyond. We face an irresponsible aggressor and war in Europe. A big part of the problem is the incumbent energy supply of Russian gas and oil. It would be nice if we could describe the current situation as a further wake up call to phase out unsustainable fossil and nuclear energy use. We are in the middle of what could turn out to be a nightmare for everyone in the European Union, we are no longer just onlookers to the plight of our Ukrainian neighbours.
We face a dramatically changing climate landscape with an urgent need for strong regulation policies and commitment. In the European Union we are still too dependent on gas and oil from outside and especially from Russia. Our thirst for these greenhouse gas rich sources is our Achilles’ heel. The nuclear angle of this war – beginning with the occupation of the Chernobyl nuclear complex by Russian troops – is extremely worrisome. Moreover, Mr. Putin is clearly and directly warning that Russia has the strongest military capability for nuclear warfare.
Against this dramatic reality I fear that the current handling by the European Commission of the development of guidance on which energy technologies fulfil the ‘do not significant harm principle’ under the Taxonomy Regulation (TR) via its current draft delegated act regulation needs a serious review in the eyes of this current war-driven storm.
The Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment was agreed at the political level in December 2019, and creates a legal basis for the EU Taxonomy. The TR sets out the framework and environmental objectives for the Taxonomy, as well as new legal obligations for financial market participants, large companies, the EU and Member States.
The TR aims to translate the UN Sustainable Development Goals (SDG) into EU legislation concerning financing. The SDG requires the channelling of capital flows towards sustainable investments. ‘It is important to fully exploit the potential of the internal market to achieve those goals. In that context, it is crucial to remove obstacles to the efficient movement of capital into sustainable investments in the internal market and to prevent new obstacles from emerging.’ (Introductory remark 90.)
The TR is currently accompanied by the development of delegated acts which should give technical screening criteria for determining when an economic activity can be considered sustainable and in line with the TR criteria.
The TR itself sets performance thresholds or ‘technical screening criteria’ for economic activities which:
make a substantive contribution to one of six environmental objectives;
do no significant harm (DNSH) to the other five, where relevant; and
meet minimum safeguards (e.g., OECD Guidelines on Multinational Enterprises and the UN Guiding Principles on Business and Human Rights).
After the European Council and the European Parliament had excluded inter alia nuclear energy and fossil gas from the direct application of the TR, further expert advice was collected on the EU Commission level. The European Commission had established a Technical Expert Group on Sustainable Finance (TEG) which developed recommendations on a range of topics, including what the Taxonomy technical screening criteria should be for the objectives of climate change mitigation and adaptation.
This TEG report from March 20201 sets out the TEG’s final recommendations to the European Commission. The report contains a summary of the economic activities covered by the technical screening criteria. TEG did not recommend criteria on nuclear energy and outlined that a further assessment of the ‘do no significant harm’ aspects of nuclear energy was necessary. TEG saw the possibility that nuclear energy production could be greenhouse gas (GHG) neutral during energy production. TEG could not conclude on potential significant harm to other environmental objectives, in particular considering the lack of operational permanent experience of high-level waste disposal sites. The Joint Research Centre of the European Commission (JRC) which is inter alia the established nuclear research unit, was thus asked for a specific report. The JRC expert group, after detailed analysis, came to a positive conclusion in its report2 that nuclear energy would fulfil the above criteria, despite further research and work needed. It concluded e.g., that there is no evidence that nuclear energy does more harm to sustainable use and protection of water and marine resources than other energy technologies included in the Taxonomy. JRC also did not find evidence that nuclear energy does more harm to the transition to a circular economy, including waste prevention and recycling, than other energy technologies included in the Taxonomy. It saw the average lifecycle GHG emissions from nuclear energy in electricity production in its values as comparable to the emission for Solar PV and Wind. The impacts of nuclear energy on human health and the environment are mostly comparable to hydropower and the renewables, if non-radiological effects are considered.
According to JRC, the analyses did not reveal any science-based evidence that nuclear energy does more harm to human health or to the environment than other electricity production technologies already included in the Taxonomy as activities supporting climate change mitigation. Issues related to water consumption and potential thermal pollution of nuclear energy must be appropriately handled during the site selection, facility design and plant operation phases.
The JRC report outlined that the nuclear safety objective specified in Article 8a of the EU Nuclear Safety Directive requires that nuclear installations are designed, sited, constructed, commissioned and operated with the objective of preventing accidents and, should an accident occur, mitigating its consequences and avoiding:
early radioactive releases that would require off-site emergency measures but with insufficient time to implement them;
large radioactive releases that would require protective measures that could not be limited in area or time.
Regarding aggressive acts against a nuclear power plant, the JRC report only briefly focusses on the Convention on the Physical Protection of Nuclear Material (CPPNM) under the International Atomic Energy Agency (last amendments from May 2016) and that signatory States must do their best to ensure security. The word ‘terrorism’ is used just once over several hundred pages and the subject of war does not appear to be up for analysis.
The mistakes in the JRC report are highlighted by the current dramatic developments in Ukraine, where nuclear power stations are being held hostage by the aggressive tactics of Russia. Despite immediate concerns and criticism by experts and Member States such as Austria, Luxembourg and Germany as well as Italy and Portugal, the Commission included nuclear energy in its Draft delegated act thus defining it in consequence as green technology. The German Federal Agency for the Safety of Nuclear Waste management (BASE) and others clearly opposed this evaluation by the JRC. BASE published its own expert report, reviewing the findings of the JRC.3
The BASE conclusion is that the JRC report only incompletely considers the consequences and risks of nuclear energy use for humans and the environment, as well as for future generations, or omits them from its assessment. To the extent that it does address them, the principles of scientific work are not properly considered in some cases. The JRC report thus cannot be used to comprehensively assess the sustainability of nuclear energy use.
It is legally very problematic to use a delegated act for a Commission delegated regulation in order to establish a highly disputed energy source under taxonomy rules rather than the ordinary legislative procedure for such an important move. The European Commission might have exceeded its power under the Taxonomy Regulation. We will see how the European Courts react, since some Member States will attack the delegated act before the European General Court once it becomes valid.
The Taxonomy in the Green Deal is a big deal.
A more global overview of the Green Deal and its legislative package is provided in our first article. Hannah Scheuing and Johanna Kamm outline an important and roundly asked question: is the Fit for 55 package fit for purpose and sufficient to achieve the EU 2030 targets?
Mark Bartholomew leads us to the second topic of this issue. More than two years have passed since the UK left the EU. In January 2021 they also left the EU’s internal energy market. In his article the author focuses on the consequences of Great Britain’s exit on the electricity market and in particular on the operation of the interconnectors between Great Britain and the EU’s internal energy market.
Meanwhile France is fighting against the increase in regulated gas and electricity prices. Marie-Hélène Pachen-Lefevre and Astrid Delesque elaborate on this topic and explain courses of action. Structural reforms in the regulated sale of energy are necessary.
Dimitris Melissas and Nikolaos Vasilakos question the strategy for wind energy in Greece. They underline the high potential of floating offshore wind technology, especially in Greek waters and draw up a possible approach to successfully develop floating wind platforms.
The next article discusses the importance of having access to information when it comes to our environment. It is a fundamental right of every individual and it is even more relevant in the tense situation we’re living in today. Thomas Schomerus and Michael Zschiesche present the main findings of a research project evaluating the German Environmental Information Act and in particular whether the legal objectives of the EIA, i.e. ensuring free access to environmental information and active dissemination of environmental information, are achieved in practice.
Finally, Penelope Crossley addresses the issue of the legal definition of renewable energy. She shows that there is no generally accepted definition and that this has a significant impact on international relations and the development of renewable energy.
Available at: https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/200309-sustainable-finance-teg-final-report-taxonomy_en.pdf (accessed 1 March 2022).
Available at: https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/210329-jrc-report-nuclear-energy-assessment_en.pdf (accessed 1 March 2022).
Available at: https://www.base.bund.de/SharedDocs/Downloads/BASE/EN/reports/2021-06-30_base-expert-response-jrc-report.pdf.pdf?__blob=publicationFile&v=9 (accessed 1 March 2022).