Environmental Policy&Law of the EU

EU Environmental Policy & LawAn overview

José Luis Bermejo [email protected]

1. Air & sea pollution are borderless, 2. Environmental landmarks are borderless,3. Environmental protection is a matter of internal market (beware of quantitative restrictions and measures having equivalent effect!)4. Law is mandatory… and environmental protection is an objective of the EU according with the Treaties

The reasons for an EU environmental policy

Donau river across central/eastern EuropeMaltese tanker Erika oil spill in the Bay of Biscay, 1999

A “new green economy” is emerging

The World & the EU environmental protection

The so-called “international Community” has signed many Treaties on several areas of the environmental protection.

One of the UN Millennium Development Goals is to ensure environmental sustainibility.

There are many connections between some pieces of EU environmental Law and some of International environmental Law:1. Birds Directive 1979–Ramsar Convention on wetlands 1971, 2. “Clearinghouse” Directive 2003-Aarhus Convention 1998, 3. emission trading system Directive 2003-Kyoto Protocol…

The milestones of the EU Environmental Law

a new chapter is added to the Treaty of Rome, setting

out a clear basis for the EEC environmental Law

Environmental action is given full EU policy status

the concept of “sustainable development” reaches the Treaty of

Rome: "environmental protection requirements must be integrated into the definition and implementation of

other Community policies"

Environmental protection

attains constitutional level (art. 37 of the Charter of Fundamental

Rights)

(the Treaty of Rome contained no specific

provisions for the introduction of

environmental legislation)

“The EC shall have as its task (…) to promote (…) a harmonious, balanced and sustainable development of economic activities (…), a high level of protection and improvement of the quality of the environment”. “The activities of the EC shall include (…) a policy in the sphere of the environment”.“Environmental Protection must be integrated into the [...] EC policies [...] in particular with a view to promoting sustainable development”.

Arts. 2, 3.1.l), 6 and 174, 175, 176 of the Treaty of Rome (Maastricht, Amsterdam, Nice & Lisbon revised)

The legal grounds for an EU environmental policy

Art. 37 CHARTER OF FUNDAMENTAL RIGHTS OF THE EU: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

1. EC 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.2. EC policy on the environment shall aim at a high level of protection taking into account the diversity

of situations in the … regions of the EC. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should ... be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include ... a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.

3. In preparing its policy on the environment, the EC shall take account of:- available scientific and technical data,- environmental conditions in the various regions of the EC,- the potential benefits and costs of action or lack of action,- the economic and social development of the EC as a whole and the balanced development of its

regions.4. (...) the EC and the Member States shall cooperate with third countries and with the competent

international organisations.

Excerpt of Art. 191, Treaty on the functioning of the EU

• I Environment Action Programme (1973-1976)• II Environment Action Programme (1977-1981)• III Environment Action Programme (1982-1986)• IV Environment Action Programme (1987-1991)• V Environment Action Programme (1992-2000)• VI Environmental Action Programme (2002-2012):

– 4 priority areas: • Climate change• Biodiversity• Environment & Health• Sustainable management of resources and waste

Each “Environment Action Programme” is a decision of the European Parliament and the Council setting out the framework for environmental policy-making in the EU for a given period, and outlining actions that need to be taken to achieve them

Mapping the EU environmental policy: > 250 pieces of legislation

1. General:environmental impact assessment (EIA)strategic environmental assessment (SEA)ecoaudits & ecolabelsaccess to information, public participation and access to justice in

environmental mattersliability for environmental damages

2. Sources of pollution:industries: IPPC licensing air quality: ETS (Kyoto)water quality noise pollutionwaste management nuclear & industrial safety (Seveso)chemical substances (REACH)

3. Use of natural resources:soil protectionbiodiversity: conservation of fauna & flora, biotechnology (GMOs)

Who is who in the EU Environmental policy & Law?

The European Commision (Directorate General Environment, Brussels) is the source and the warden of the EU environmental Law, proposes new legislation and prosecutes Member States taking them before the ECJ in case of breach of their obligations to implement and to enforce the EU environmental legislation.

The European Parliament (Brussels-Strasbourg) is the Lawmaker along with the Council of Ministers (Brussels), by means of the co-decision procedure. Any citizen may file a complaint to enforce the EU environmental legislation.

The European Environmental Agency (Coppenhagen) is the think-tank of the EU environmental policy, suports decision-making and coordinates the European environment information and observation network (EIONET).

The European Court of Justice (Luxembourg) is the judge of the EU environmental Law, trials Member States in case of breach of their obligations to implement and to enforce the EU environmental legislation.

How is EU environmental Law enacted? The co-decision procedure (art. 251 of the Treaty of Rome)

Environmental impact assessment

The EIA procedure ensures that the environmental implications of decisions are taken into account before the decisions are made.The environmental consequences of projects are identified and assessed before authorisation is given. The public can raise opinion and all results are taken into account in the authorisation procedure of the project. The process involves an analysis of the likely effects on the environment, recording those effects in a report, undertaking a public consultation exercise on the report, taking into account the comments and the report when making the final decision and informing the public about that decision afterwards.

The Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (broadly amended in 1997 and 2003) subjetcs any individual projects of works and/or activities, whether public or private (dams, motorways, airports or factories), to a 2-phase procedure (the responsible files an “environmental impact study” before the “environmental organ” the “environmental organ” issues a “declaration of impact” stating positive/negative/subject to conditions the “substantive organ” approves the work, installation or activity). The EIA procedure is mandatory if the project falls into a category listed out in Annex I, otherwise the process is discretionary under some criteria.

Strategic Environmental AssessmentThe Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (SEA Directive) states that an assessment process (consisting of a sustainability report & public hearings) must be embedded in the procedure of approval of certain plans, programmes & policies.The aim of a SEA procedure is to identify, describe and assess the likely significant effects of the plan/ programme on the environment, as well as its reasonable alternatives.The contents of a SEA report are not binding, the purpose of the SEA is to make the decision-makers aware of the consequences of the decision made... i.e., pan-European transport network

SEA= overall and low-profile environmental analysis of a plan, programme & policy

eco-management/eco-audit scheme & eco-label

Regulation 1980/2000 on a revised Community eco-label award scheme lays down a labelling system intended to promote environmentally-friendly products, thus providing consumers with accurate and scientifically based information and guidance on products.The environmental requirements are defined in accordance with the assessment matrix given in Annex I and must meet the methodological requirements set out in Annex II. The label may be awarded by national authorities to products contributing significantly to improvements in relation to key environmental aspects. The use of the label is subject to the payment of an annual fee by the user (manufacturer, importer, service provider, trader or retailer).

Regulation 761/2001 allowing voluntary participation by organisations in a Community eco-management and audit scheme lays down an environmental management system relying on self-regulation of organisations willing to participate.The organisations taking part in the EMAS scheme are registered by the national authorities on condition that they have supplied a validated environmental statement to those bodies; have paid the registration fees; have supplied a completed form; and meet all the requirements laid down in the Regulation.

Liability for environmental damages

Under this Directive, operators of dangerous or potentially dangerous activities listed in the Annexes (most agricultural or industrial activities and activities concerning GMOs and micro-organisms) may be held responsible, whether at fault or negligent, depending on the type of activity developed.Insurance policies are not mandatory but suggested. Where there is an imminent threat of environmental damage, the national authorities must require the potential polluter to take the necessary preventive measures, or must take such measures itself and recover the costs incurred at a later date. Where environmental damage has occurred, the national authorities must require the polluter to take the necessary restorative measures, or must take such measures itself and recover the costs incurred at a later date.Remedies depend on the type of damage: decontamination of land, restoration of water or protected species and natural habitats.

The "polluter pays" principle is applied through Directive 2004/35/EC of 21 April on environmental liability with regard to the prevention and remedying of environmental damage.

Environmental information disclosure & clearinghouse policy

This legal framework lays down rights and duties regarding access to information, including deadlines for providing information and the grounds on which public authorities may refuse access to information. Information must be held up to date and broadly disclosed.Public participation in decision-making must be ensured through the authorisation procedure for certain specific activities (mainly of an industrial nature. The final decision to authorise the activity must take due account of the outcome of the public participation. A streamlined procedure has been set up for the formulation of environmental plans and programmes. Regarding access to justice, all persons who feel their rights to access to information have been impaired (request for information ignored, wrongfully refused, inadequately answered) must have access to a review procedure. Access to justice is also allowed to settle disputes relating to contraventions of environmental legislation.

The application of the Århus Convention is ensured through Directive 2003/04/EC on public access to environmental information and Directive 2003/35/EC on public participation in the drawing up of environmental plans and programmes and access to justice (a specific Directive on this latter subject is envisaged).

Biodiversity protection

Bird species and interesting fauna & flora species and their habitats are protected through the creation of a EU network of sites (SCAs= SPAs+SCIs). Human activities (sustainable development) are allowed in the sites, provided that their impact in the site assessed. The sites must be appropriately managed through “management plans”.

Deliberate release and placing on the market of GMOs is subject to authorisation procedures, under a common methodology for risk assessment and a safety mechanism. Consent for GMOs is limited to a period of 10 years. Public consultation and GMO labelling is mandatory.

Directive on the conservation of wild birds (1979)

Directive establishing the Natura 2000 network to protect wild fauna and flora (1992)

Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms (GMOs)

Natura 2000 sites

throughout Europe: locate yours!

Integrated pollution prevention and control

The IPPC Directive requires highly potential polluting industrial and agricultural activities, as defined in Annex I to the Directive (energy industries, production and processing of metals, mineral industry, chemical industry, waste management, livestock farming...), to have a permit that can only be issued if certain environmental conditions are met, so that the companies themselves bear responsibility for preventing and reducing any pollution they may cause.Industries must comply with basic obligations: use all BAT pollution-prevention techniques; prevent, recycle or dispose of waste in the least polluting way possible; use energy efficiently; ensure accident prevention and damage limitation; The permit must contain a number of specific requirements, i.e. emission limit values for polluting substances (except for greenhouse gases); any protection measures required. All permit applications must be sent to the national authority including information on the activity planned. Without infringing the rules and practice of commercial and industrial secrecy, the information must be made available to interested parties (the public and other Member States, if the project is likely to have cross-border effects). The decision to license or reject a project, may be challenged in the courts.

The recently codified Directive 2008/1/EC concerning integrated pollution prevention and control (formerly

Directive 96/61/EC) shall be replaced by a new Directive on Industrial Emissions.

Water qualityThe sanitary/chemical approach: - Directive on the quality of bathing water (1975), Directive on fresh waters and fish life (1978) - Directive laying down minimum drinking water standards (1980)+ Directive to increase such standards (1998) - Directive 91/271/EEC concerning urban waste water treatment concerns the collection, treatment and discharge of urban (and, in some cases, industrial) waste water. Industrial waste water entering collecting systems and the disposal of waste water and sludge from urban waste water treatment plants must be subject to regulations and/or specific authorisation by the national authorities. By 2015, all agglomerations which discharge their effluent into water masses must have a collection and treatment system.- Directive protecting waters against nitrate pollution caused by agricultural run-off (1991)- Directive 2006/118/EC on the protection of groundwater against pollution and deterioration sets threshold values of several pollutants (nitrates, pesticides, other chemicals) for groundwater masses.

The management (global) approach: - Directive 2000/60/EC establishing a framework for Community action in the field of water policy. Key concepts: river basin, management plans, cost recovery, optimisation…

Waste and Packaging waste

Directive 2006/12/EC on waste prohibits the abandonment, dumping or uncontrolled disposal of waste, and promotes 4Rs approach. Holders of waste (operators of transport, collect, store, tip or treat third parties' waste) are subjetc to authorisation relating to the types and quantities of waste to be treated, the general technical requirements and the precautions to be taken. Recovery centres and undertakings disposing of their own waste also require a permit. Waste must be disposed of in one of the nearest appropriate installations (not only landfills). The cost of waste disposal must be born by the holder, the collector and/or the producer of the product giving rise to the waste. Management plans (on the types, quantities and origins of the waste, the general technical requirements and suitable disposal sites and installations) are mandatory for national authorities.

Directive 2000/76/EC on the incineration of waste subjects incineration or co-incineration plants to authorisation of the national authority. Plants must keep the incineration or co-incineration gases > 850°C/2 sec. (1 100 °C /2 sec. if chlorine). The limit values for incineration emissions to air are set out. Special provisions are laid down relating to cement kilns, other industrial sectors, and combustion plants which co-incinerate waste. All discharges of effluents caused by exhaust-gas clean-up must be authorised. Incineration residues must be reduced to a minimum and, as far as possible, recycled. When dry residues are transported, precautions must be taken to prevent their dispersal in the environment. Tests must be carried out to establish the physical and chemical characteristics, and polluting potential, of residues.

4Rs (reduction, reuse, recycling & recovery) vs

landfill disposal & waste incineration

Fight against climate changeThe EU Emissions Trading System (ETS) covers > 11,500 energy intensive facilities across the EU (oil refineries, powerplants over 20 mW, coke kilns, iron and steel plants, cement, glass, lime, brick, ceramics, and pulp and paper installations). “National Allocation Plans” allocate the industries emission allowances expressed in Tons/year of greenhouse gases. Industries must hand back the same amounts allocated by the end of each trading period. Industries/countries may trade their allowances (purchase if exceed, sell otherwise) 1st trading period began in 2005 - 2nd trading period began in 2008 - 3rd trading period is planned for 2013.ETS covers only a percentage of the overall greenhouse gas, since emissions caused by the transport sector are excluded.

Europe is getting hot!

The EU Emissions Trading System (ETS) is a cornerstone of the EU’s efforts to meet its obligation under the Kyoto Protocol (greenhouse gases -mainly, but not only, CO2- emissions must be reduced by 2012 with regard to the 1990 data).

Air quality•Directive 1999/30/EC relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air •Directive 96/62/EC on ambient air quality assessment and management •Directive 2001/81/EC on national emission ceilings for certain atmospheric pollutants•Directive 85/203/EEC on air quality standards for nitrogen dioxide•Regulation 2037/2000 on substances that deplete the ozone layer•Directive 88/77/EEC relating to the measures to be taken against the emission of gaseous pollutants from diesel engines for use in vehicles •Directive 98/70/EC relating to the quality of petrol and diesel fuels.

Europe is getting hot!

Smog (smoke fog)Directive 96/62/EC on ambient air quality assessment and management Directive 2001/81/EC on national emission ceilings for certain atmospheric of petrol and diesel fuels….

Noise pollution

Directive 2002/49/EC relating to the assessment and management of environmental noise aims at controlling noise perceived by people in built-up areas, in public parks or other quiet areas in an agglomeration, in quiet areas in open country, near schools, hospitals and other noise-sensitive buildings and areas. Thresholds of Lden and Lnight (noise indicators) defined using common assessment methods may be used for acoustical planning and noise zoning: “strategic noise maps” globally assess noise exposure in specific areas; “action plans” aim at managing noise issues and effects, including noise reduction if necessary, for major roads > 6 million vehicle passages a year, railways > 60000 train passages per year, major airports and agglomerations > 250000 inhabitants by 2008)

Soil protection... A new legislation to come

Commission Communication of 22 September 2006 entitled "Thematic strategy for soil protection" [COM(2006) 231 final] gave rise to a Proposal for a Directive of 22 September 2006 setting out a framework for soil protection. This proposal provides for measures to identify problems, prevent soil degradation and remediate polluted or degraded soil, such as: - obligatory identification by national authorities of areas at risk of erosion, organic matter decline, compaction, salinisation and landslides, or where the degradation process is already underway. - fixation of objectives and adoption of programmes to reduce the risks and to address the effects. - adoption of measures to limit soil sealing by rehabilitating brownfield sites and, where sealing is necessary, to mitigate its effects.- drawing up of a list of sites polluted by dangerous substances, - compulsory submission of reports on the state of the soil of the sites conveyed in commercial transactions.

Soil degradation costs might rise up to 38 billion euro per year. Nevertheless, non-specific EU provisions for soil protection are

spread across many areas, either under environmental protection or other policy areas (agriculture and rural

development): a coherent scheme of soil protection is needed.

THE FUNDING OF THE EU ENVIRONMENTAL POLICY

LIFE+ is the current EU’s financial instrument supporting environmental and nature conservation projects throughout the EU and in some candidate & neighbouring countries. Since 1992 LIFE has co-financed some 2,750 projects for a total of €1.35 billion.

The Civil Protection Financial Instrument supports and complements Member States' efforts to protect people and property in the event of natural and man-made disasters, terrorist acts and technological, radiological and environmental accidents. It also facilitates co-operation between Member States in the field of civil protection.

The Competitiveness and Innovation Programme – Entrepreneurship and Innovation Programme (CIP-EIP) supports projects in eco-innovation through three initiatives: financial instruments, network of actors and pilot and market replication projects.

Thank you for your attention!

[email protected]