By Paul Davies, Antonio Morales, Jörn Kassow, Joachim Grittmann and Cesare Milani
The year ahead presents a series of challenges and opportunities for the development of environmental law across Europe. Notably, the Paris Agreement came into effect on 4 November 2016 and is now binding upon the signatory countries. The European signatory countries will therefore be focusing their efforts on preparing and implementing their plans to meet their Nationally Determined Contributions in accordance with the Agreement. How countries go about this will be key for 2017.
It also means that the EU’s introduction of the Winter Package, will likely intensify the spotlight on energy efficiency in the year ahead. The new European legislation promotes prioritising energy efficiency across the board as being key to facilitate the transition to a low-carbon economy and in turn, therefore helping to achieve some of the Paris Agreement objectives. We will also need to continue to track the impact of Brexit in respect of regulatory developments in the UK and Europe.
Finally, there are some interesting developments in the context of biodiversity, which could pose challenges for new projects in France.
In this context, we have set out key highlights below.
Impact of Brexit: As the outcome of the appeal of the Brexit judgment is set to be issued imminently by the Supreme Court, the status of environmental law in the UK (which is predominantly derived from EU legislation) remains very fluid. It is understood the government’s current plan to transpose EU environmental law into UK domestic law by the Great Repeal Bill will not necessarily address all relevant environmental legislation and some areas are already subject to review. In particular, the UK Parliament’s Environmental Audit Committee have launched a second inquiry into the future of the REACH regulation in the UK. It remains to be seen what legislation will come under scrutiny next.
August 2016 Biodiversity Law and accompanying legislation: In 2016, two legislative ordinances were passed which amended the legal regime governing environmental assessments. As a result, the public’s participation in the environmental decision-making process is likely to be a determinative factor for new developments in 2017 and onwards. Further, the recognition now given to biodiversity as a protected interest means that from now on there is an obligation to not only prevent and offset harm to the biodiversity, but also, to the extent possible, achieve a net biodiversity gain which is to be assessed throughout the life-time of a project. Both these changes mean that environmental assessments will now have to account for this approach. This could pose significant challenges for new projects that are being planned.
Climate Protection Plan 2050: In light of the Paris Agreement (as noted above), the federal government presented the Climate Action Plan 2050 (Klimaschutzplan 2050) outlining a road map to an extensive greenhouse gas neutrality by 2050. The Climate Protection Plan 2050 defines milestones and sectoral climate targets for certain areas of action, such as energy, buildings, transport, industry, agriculture, land use and forestry. This will necessitate specific measures that will start to drawn up in 2017.
2017 Renewable Energy Sources Act (EEG 2017): Notwithstanding the Government’s ambitions under the Climate Action Plan 2050, as of 1 January 2017 the rates of funding for renewable energy sources are to be determined by means of dedicated auction schemes, rather than being fixed by the government. This shall apply to new photovoltaic installations, wind turbines and biogas plants of a certain size.
Energy efficiency: In 2017, several directives will be transposed into national Italian law. For example, the European Winter Energy Package will have significant implications for Italian energy legislation concerning the renewable energy sources. Furthermore, the new Italian Public Procurement Code, which entered into force in 2016, placed the environmental sustainability and the energy efficiency among the main criteria for awarding public contracts, reinforcing its importance going forward.
Promotion of energy efficiency: The Spanish Government has highlighted its commitment to promoting energy efficiency through: (i) the creation of the National Energy Efficiency Fund in 2014; and (ii) the introduction in 2015 of a regulation that requires energy audits to be undertaken by large scale enterprises and group of companies. As such, we expect the Spanish government to introduce further regulations to align with the European Commission’s clear objectives, as set out in the Winter Package.
In addition to the key developments to look out for summarised above, if 2017 is a year anything like 2016, we can also expect the unexpected.
This post was prepared with the assistance of David Desforges from Desforges Law.
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