Archive for category Environmental law – EU
Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.
(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.
Repeat after me: the precautionary principle does not imply reversal of the burden of proof. Neither does it mean ‘when in doubt, opt-out’.
Allow me a succinct grumble about the precautionary principle. A recent Guardian item on trade talks post-Brexit refers ia to proponents of Brexit wanting to use future trade talks eg with the US, to ditch the precautionary principle. It states the proponents’ strategy ‘also advocates tearing up the EU’s “precautionary principle”, under which traders have to prove something is safe before it is sold, rather than waiting for it to be proved unsafe’.
Reversing the burden of proof (also known as the ‘no data no market rule’) is not a necessary prerequisite of the precautionary principle. If it were, public authorities’ task in regulating health, safety and the environment would look very different than it does today, as would the regulation of new technologies such as nano or synthetic biology (indeed even AI). Only in specific sectors, has the burden of proof been reversed. This includes, in the EU, REACH – the flagship Regulation on chemicals. In others, it was discussed (e.g. in the reform of the EU’s cosmetics Directive into a Regulation), but eventually dismissed.
Neither does the EU’s approach to the precautionary principle imply ‘when in doubt, opt out’, or ‘when in doubt, don’t do it’. One need only refer to the recent decision to extend the licence for glyphosate to show that the EU does not ban what is not proven safe (the least one can say about glyphosate is that its health and environmental safety is not clearly established). I blame Cass Sunstein’s Laws of Fear, superbly reviewed (critically) by Liz Fisher in the 2006 Modern Law Review for misrepresenting the principle – such that even its proponents often misunderstand its true meaning.
Precaution is not an alternative to science. It is a consequence of science.
EU environmental law (with Leonie Reins), Edward Elgar, soft cover edition 2018, p.28 ff.
Perhaps it has been studied already. Perhaps it is more of a PhD chapter, short paper or indeed a case for public interest litigation. Stephanie Bijlmakers and I had a good moan about the lack of access to ISO standards when we wrote on ISO 26000. I now have encountered again how extraordinary it is that the public do not have free access to industry standards with such high societal relevance. The trigger this time round is one of our PhD students enquiring with me about recyclable content in packaging. This has sent me on a goose chase to gain access to a copy without having to fork out £170 each for 5 relevant CEN standards.
So here’s my research starter for ten: could and if so under what circumstances can privately developed yet publicly approved standards be considered environmental information under relevant EU and international rules, access to which needs to be granted without charge?
Others have studied the EU’s legal basis for energy policy much better than I have. Chiefly among them prof Leonie Reins. e.g. for RECIEL here and in her Phd here. The impact of this discussion is high: since the introduction of an energy Title in the EU Treaties (following Lisbon) whether so designed or not, the prospect of that Title’s requirement on unanimity for measures which ‘have a significant effect on a Member State’s choice between different energy sources’ looms heavily over the EU’s environment policy. The EU’s emissions trading system – ETS is the prime candidate for falling victim to an extensive interpretation of Article 192(2)c TFEU, which harbours the unanimity requirement within the Treaty’s environment Title. [The energy Title, Article 194, has similar challenges].
In C-5/16 Poland v EP and Council Mengozzi AG Opined last week. At issue is Poland’s opposition to a MSR – a market stability reserve for the Union greenhouse gas emission trading scheme, essentially a long-term parking for surplus allowances to enable the ETS to safeguard collapse of prices in the event of excess supply. The resulting increase in the price of allowances was inter alia intended to encourage fuel switching and to discourage investments in coal-fired power stations (hence of course Poland’s interest).
Relevant to future reference is especially the AG’s view at 25, which I include in full: ‘as a derogation, Article 192(2)(c) TFEU is to be interpreted strictly, especially since an efficient modern environment policy cannot ignore energy questions. I share the fears expressed by the defendants and the interveners that the applicant’s proposed interpretation of Article 192(2)(c) TFEU and the conclusions which it draws from that interpretation for the examination of the legal basis of the contested decision would effectively block any legislative initiative by recognising a right of veto for Member States, as the Union would adopt measures inviting them only to rationalise their CO2-consuming activities. Furthermore, such an interpretation would doom the ETS to failure as it would prevent the EU legislature from correcting its structural deficiencies. In addition, although I would point out that the goal of introducing the MSR is not to form the price of allowances but simply to ensure the efficiency of the ETS, in any event, an operator’s choice of a certain energy source or production technology cannot depend on that price alone, which does not in itself define the production costs, which are determined by a variety of factors. Even with the introduction of the MSR, the choice of technology still remains in the hands of operators and is not dictated by the European Union.’
I am not sure to what degree the Court’s judgment will enable us to draw criteria with wider impact than just the current case – but it would certainly be helpful. Mengozzi AG firstly emphasises strict interpretation of the ‘energy mix’ exception. Further, in the paras preceeding the aforecited one, links amendments to existing laws largely to the latter’s legal basis. Supports the Institutions and Spain, France and Sweden (intervening; the position of Germany, also intervening, was not made clear) in their warning against veto power in the energy /climate change context; and finally further dilutes the exception by looking at policies as they work in practice, not just in theory. On this point, the AG looks at the ETS specifically however his view has broader appeal: it would essentially mean that when Member States’ and individuals’ /undertakings’ behaviour is determined by regulatory intervention, some of which clearly based on a legal basis other than Article 192(2)c TFEU, the latter is not determinant in deciding proper legal basis.
This is an important case for the future of EU environment and energy policy.
Hang on a minute. Were not the EU and its Member States supposed to be precaution obsessed? Don’t the EU and its Member States alike adopt bans on all things GMO for no other reason than that they simply do not want them? How then can the CJEU hold in C-111/16 Fidenato that Member States do not have the option of adopting, in accordance with Article 54 of Regulation 178/2002, the EU’s general food safety law, interim emergency measures solely on the basis of the precautionary principle?
The reason lies in pre-emption, aka exhaustion, and in the balance between EU and national risk management which EU law strikes in the specific field of GM cultivation. Of note is that in the meantime most biotech companies have given up on cultivation of GM varieties in the EU.
As extremely well summarised by Bobek AG in his Opinion in the case, the formulation of the relevant EU legislation is such as to provide that post EU authorisation (here: of genetically modified maize MON 810) Member States may only take emergency measures where the continued cultivation of the approved products is ‘likely to constitute a serious risk’. While the precautionary principle may play its role fully at the level of the EU’s risk management preceding authorisation, and indeed post such authorisation, too, Member States are given less leeway in their national emergency measures. In prescribing these rules, the EU safeguards the harmonised approach to the GM varieties at issue.
(Mr Fidenato nb is something of a cause celebre among the GM community). Please note, again, that the case concerns the growing (‘cultivation’) of GM crops. Not the import, export or use of products containing GM.
Finally it is important to point out that the Court does not equate precaution with the absence of science. It is the degree of scientific certainty here which is relevant, not the absence ‘v’ presence thereof.
I am in Wuhan 2 1/2 days this week, where I am pleased to be engaging in three of my favourites: a class on environmental law, at Wuhan University’s unparalleled Research Institute of Environmental Law; a session on best practices for PhD research at same; and a conference presentation on conflict of laws at the solidly A+++ ‘Global Forum’ of the Chinese Society of Private International Law and Wuhan University’s Institute of International Law.
Anyways, on my way I inter alia wrote following intro to a volume on Waste to Energy, edited by Harry Post. I thought would share.
The European Union purports to be moving towards a Circular Economy (CE). If recent experience in environmental and energy law is anything to go by, the rest of the world will look with interest to its progress. It is fashionable to say that in the CE ‘waste’ will no longer exist. This is however not relevant beyond semantics. What really matters is how the EU and others after or before it, create the economic and regulatory environment that enables the innovation which a CE requires.
Regulatory circles have ample sympathy for business implementing and bringing to market the many exciting ideas which engineers continue to develop. At the same time one must not be blind to the excess which unchecked engineering imagination does have on society, in all pillars of sustainable development: social, economic and environmental. We must not compromise on a robust regulatory framework which looks after what public health and environmental protection require: two Late Lessons from Early Warnings reports tell us that we would do so at our own peril. However we do have to question continuously whether our existing laws are best practice in reaching that desired outcome. It would be a particular affront if innovative products and services that truly may boost environmental protection, were not to be rolled-out because of anxiety over their legal status.
In an innovative environment, legal certainty is an important driver for success. Lack of clarity over the legal framework and /or the regulators’ implementation of same, leads industry either to seek out and concentrate development on those States with lax or flexible regulators only; or to stick to old and trusted products.
The European Union is particularly suited to providing that clarity. On the scientific front, by investing in research and development, especially at SME and specialised spin-offs level. On the regulatory front, it would do well to work out a regime which enables innovators to query enforcement agencies about the legality of a new product or service line without the fear of subsequently being disciplined for it.
This volume is a scholarly effort to assist with both strands of the exercise. It is to be much commended for that effort and I for one am sure both industry and legal scholars will find its content encouraging.