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Climate, Energy – and Environment? Reconciliation of EU Environmental Law with the Implementation Realities of EU Climate Law

In: Climate Law
Author:
Alison HardimanSchool of Law, University College Cork, Cork, Ireland, alisonhardiman@gmail.com

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Abstract

Recognizing that significantly increased renewable-energy share (res) is a central component of both EU climate and environmental law, the focus of this paper is the point of intersection between these legal frameworks. Renewable-energy infrastructure projects are necessary for climate-mitigation purposes, but they give rise to significant local environmental impacts that have a negative effect on local communities and environmental conditions. The objective of environmental protection, ‘to preserve, protect and improve the quality of the environment’, does not fully align with the objectives of climate mitigation, which are designed to safeguard the needs of future generations and the long-term environment. While EU environmental policy encompasses ‘measures designed to combat climate change’, little attention has been afforded in relevant Directives to the impact of climate-mitigation measures on the environment. There is no provision for proportionate treatment of the impacts of these measures in environmental governance procedures. Analysis of the provisions of the eia and Habitats Directives, which directly impact the authorization of renewable-energy projects, reveals that climate as a component of EU environmental policy is dealt with via the limitation and control of greenhouse gas emissions, an incomplete approach that fails to provide for the development of new large-scale infrastructure that can mitigate the generation of greenhouse gas emissions through provision of sustainable energy sources. The European Union’s revised Trans European Network – Energy (ten-E) Regulation (June 2022) provides that energy infrastructure in the form of projects of common interest shall be deemed to be in the overriding public interest in the context of the Habitats Directive, an exception to that Directive’s prohibition on development that could negatively impact protected Natura 2000 features. A proposal pursuant to the EU Commission’s plan ‘REPowerEU’ recommends an amendment to the Renewable Energy Directive to introduce a similar overriding provision in respect of all renewable-energy infrastructure projects. These sidestepping provisions in climate-energy laws, made necessary by the failure of EU environmental law to incorporate effective provisions that promote climate change measures, are an incomplete solution that will limit the regulation of an environmentally responsible approach to increased res and are likely to be challenged.

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