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23rd May 2022

Lawyers threaten action over new EU gas and nuclear rules

  • MEPs complained of the lack of an impact assessment or public consultation 'in the light of the controversial nature of the subject' (Photo: Bilfinger SE)
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Environmental lawyers are threatening to take legal action against the European Commission if gas is included in the new EU guidelines for sustainable energy investment.

The draft proposal, controversially released late on 31 December, would see certain investments in gas and nuclear included in the so-called EU taxonomy, under the category of "transitional economic activities".

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But a legal analysis carried out by ClientEarth found that such a move would clash with several EU laws — the Treaty on the Functioning of the European Union, the EU Climate Law and the Taxonomy Regulation itself — and international commitments under the 2015 Paris Agreement.

"Failing to take these legal obligations into account puts the commission at serious risk of legal challenge," environmental lawyer Marta Toporek from ClientEarth warned on Friday (21 January).

The London-based NGO said that they are exploring all legal avenues, including an internal review request.

Under the Aarhus regulation, NGOs have the right to ask EU institutions to assess their own decisions — with a right to appeal before the Court of Justice of the European Union.

The commission must respond to such requests within 22 weeks.

"While it is a lengthy process, it is an important right for environmental NGOs, and in very limited cases individuals, to ensure that EU institutions and bodies comply with EU laws that are meant to protect the environment and human health," ClientEarth told EUobserver.

The draft taxonomy has triggered discontent not only among environmentalists but also among some EU member states, MEPs and some financial institutions.

Spain, Austria, Denmark and Luxembourg united to reject the draft proposal, ahead of an informal meeting with EU environment ministers taking place on Friday (21 January) and Saturday — where EU countries can tell the commission what they think about including gas and nuclear into the EU taxonomy.

"This draft sends the wrong message to financial markets and seriously risks being rejected by investors. It jeopardises the purpose of the taxonomy to create a common language," the group of four countries said in a statement earlier this week.

They argue that natural gas and nuclear power do not meet the legal and scientific requirements to be qualified as sustainable activities.

Vienna previously said it would sue the EU executive if it goes with its plans to include gas and nuclear in the EU taxonomy.

And the Dutch parliament said this week that it will not accept the inclusion of gas, because "'green' should really be green", as Dutch Green MP Suzanne Kröger put it.

No impact assessment, no public consultation

Similarly, centre-right MEP Sirpa Pietikäinen and Green MEP Bas Eickhout, who lead the European Parliament's work on this file, have said that the draft proposal fails to live up to the co-legislators expectations.

They see the selection criteria used for gas power plants, co-generation and district heating as being in breach of the "principle of technological neutrality".

Scientists from the EU Commission expert group concluded that for gas power plants a threshold of 100g CO2e/kWh of electricity should be applied to be compatible with a 1.5°C pathway under the Paris Agreement.

But under the draft proposal, instead, gas power plants would be taxonomy-compliant if their emissions are lower than 270g CO2e/kWh of electricity.

"We see no legal ground for the commission to create an exemption to this principle of technological neutrality," the two MEPs said in a letter, regretting the lack of an impact assessment.

Earlier this week, MEPs Irene Tinagli and Pascal Canfin, chairs of the parliament committees for economy and environment, also deplored the lack of public consultation "in the light of the controversial nature of the subject".

Meanwhile, civil society organisations and academia have warned the commission that the EU taxonomy, as it stands, would damage Europe's reputation and ambitions to climate leadership.

Last year was marked by "a string of intense political rows, backroom deals and manoeuvring over how to bypass scientific evidence and classify fossil gas and nuclear energy as sustainable," said Tsvetelina Kuzmanova from NGO E3G.

Experts had until Friday to provide feedback on the EU taxonomy. The EU executive will now analyse their contributions and it is expected to formally adopt the proposal before the end of the month.

A majority of EU countries, or the European Parliament, could still object and revoke the decision, after four months of scrutiny.

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