Archive for category Environmental Law – International
In Coast and Country Association of Queensland Inc v Smith & Ors  QCA 242, the Queensland Court of Appeal held among others that the Land Court was correct not to include emissions from the burning of coal ex Australia, in the environmental impact assessment part of permitting decisions relating to Queensland coal mines: ‘It is outside the Land Court’s jurisdiction under s 269(4)(j) Mineral Resources Act 1989 (Qld) to consider the impact of activities beyond those carried on under the authority of the proposed mining lease, such as the impact of what the Land Court described as “scope 3 emissions.” These include environmentally harmful global greenhouse gas emissions resulting from the transportation and burning of coal after its removal from the proposed mines.’
As BakerMcKenzie note (a good summary of the issues which I happily refer to), this does not mean that such impact may not be taken into account at all: It can be considered when weighing up whether “the public right and interest is prejudiced”, and as to whether “any other good reason has been shown for a refusal”. However the Land Court tends not to have much sympathy for that view: contrary to eg the Dutch approach in the Urgenda case, the Land Court views the coal market as essentially demand driven: if no Australian coal is used, other coal will be – so one might as well make it Australian.
The High Court of Australia, Baker report, have now confirmed (without formally endorsing the approach), that Land Courts decisions wil not be subject to further appeal on these grounds. (So far I have only found the reference to the case on the Court’s ledger).
Not much prospect for well to wheel considerations in Queensland /Australia therefore. Interesting material for a comparative environmental law class.
This post should be preceded by a boast alert, but hey: a pat on one’s own shoulder does not hurt once in a while. With Dr Leonie Reins I have written EU Environmental Law, which has now been published by Edward Elgar. The blurb is here. Leonie and I have given a concise yet we hope complete overview of this ever-growing part of EU law. We hope it will please the reader!
I have copy /pasted the TOC below.
We are now turning our attention to (inter alia): EU energy law.
Contents: 1. Setting the context
PART I BASICS/FRAMEWORK OF EUROPEAN ENVIRONMENTAL LAW 2. Principles of European Environmental Law 3. Environmental law making in the European Union 4: Implementation and enforcement Public Participatory Rights 6. Additional tools in implementing European Environmental Law 7. Environmental and Strategic Impact Assessment 8. Environmental Liability and Environmental Crime 9. State Aid and Competition Law
PART II SUBSTANTIVE LEGISLATION 10. Biodiversity and Nature Conservation 11. Water protection legislation and policy 12. Noise pollution legislation and policy 13. Air pollution legislation and policy 14. Climate Change legislation and policy 15. Waste legislation and policy 16. Chemicals legislation and policy 17. Trade and the Environment
Thank you Jonathan Cocker for flagging Ontario’s stakeholder consultation on renewable fuel standards, aka biofuels. Current thinking, outlined in the discussion paper, is to make the standards ‘performance based’: ie without pushing one or rather additive and exclusively focus on achieved (documented) reduction of greenhouse gas emissions.
Biofuels are known to create international trade tension. Argentina and the EU are still formally in consultation over the EU’s approach. Various WTO dispute settlement concerns anti-dumping duties on biofuels. Finally one or two elements of WTO dispute settlement on support for renewable energy touch upon fuel standards.
With all that in mind one particular element of the Ontario regime caught my attention: the intention to regulate GHG emissions ‘well to wheel’: ie ‘to assess emissions performance across the fuel’s full well-to-wheel lifecycle, from extraction to processing, distribution and end-use combustion.’(p.6). Canada does that already for diesel, with its 2014 greener diesel Regulation, employing what is known as the ‘GHGenius’ model.
What I have not been able to gauge from my admittedly limited research into that model: does it at all and if so how, apply to particularly extraction outside of Canada indeed outside Ontario? For the EU, much of the biofuel production (let alone biofuel imports) at some point or another involves extra-EU elements. How does a well to wheel method in such case work under WTO rules?
There is as yet no EU harmonisation on amino acids, in so far as they have a nutritional or physiological effect and are added to foods or used in the manufacture of foods. A range of EU foodlaws therefore do not apply to national action vis-a-vis amino acids, in particular Regulation 1925/2006 – the food supplements Regulation. In the absence of specific EU law rules regarding prohibition or restriction of the use of other substances or ingredients containing those ‘other substances’, relevant national rules may apply ‘without prejudice to the provisions of the Treaty’.
In C-282/15 Queisser Pharma v Germany, moreover there were no transboundary elements: Articles 34-36 TFEU therefore do not in principle apply.
No doubt food law experts may tell us whether these findings are in any way unusual, however my impression is that the Court of Justice in this judgment stretches the impact of the ‘general principles of EU food law’ as included in Regulation 178/2002. Indeed the Court refers in particular to Article 1(2)’s statement that the Regulation lays down the general principles governing food and feed in general, and food and feed safety in particular, at EU and national level (my emphasis). Article 7 of the Regulation is of particular relevance here. That Article gives a definition of the precautionary principle, and consequential constraints on how far Member States may go in banning foodstuffs, as noted in the absence of EU standards and even if there is no cross-border impact.
Article 7 Precautionary principle
1. In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment.
2. Measures adopted on the basis of paragraph 1 shall be proportionate and no more restrictive of trade than is required to achieve the high level of health protection chosen in the Community, regard being had to technical and economic feasibility and other factors regarded as legitimate in the matter under consideration. The measures shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk assessment.
Germany on this point is probably found wanting (‘probably’, because final judgment on the extent of German risk assessment is left to the national court) – reference is best made to the judgment for the Court’s reasoning. It is clear to me that the way in which the Regulation defines precaution, curtails the Member States considerably. Further ammunition against the often heard, and wrong, accusation that the EU is trigger happy to ban substances and processes in the face of uncertainty.
A quick note on second-hand goods and VAT. For my review of Bot AG’s Opinion in C-471/15 Sjelle Autogenbrug, see here. The Court held yesterday and defined (at 32) second-hand goods essentially as follows: in order to be characterised as ‘second-hand goods’, it is only necessary that the used property has maintained the functionalities it possessed when new, and that it may, therefore, be reused as it is or after repair.
The Court does not refer to EU waste law yet the impact on that area of EU law is clear.
Handbook of EU Waste Law, second ed. 2016, Chapter 1.