Business interests have long used crises as a pretext to demand that regulatory constraints be scrapped, particularly environmental requirements that inconvenience them. There is therefore concern that Russia’s aggression against Ukraine and Europe’s current energy crisis is being used as such an opportunity as illustrated by rules put forward in the EU, Hungary and Ukraine. Europe is indeed facing difficulties meeting energy needs this winter, but NGOs are warning that jettisoning environmental protections and principles of consultation that have taken years to ingrain is short-sighted, and will cause lasting harm.
Below we look at proposed changes across Europe and NGO reactions to them.
The EU: In response to Russian aggression, shortfalls in energy supply and the prospect of power outages in winter, the European Commission has proposed a “Regulation laying down a framework to accelerate the deployment of renewable energy which focusses on tackling what they call “Lengthy and complex administrative procedures … hampering the speed and number of investments in renewables”. This echoes comments from a French energy company executive.
But rather than beef up resources to better and faster implement existing legislation, the Commission proposes to discard EU environmental constraints. The content of a Regulation to accelerate the deployment of renewable energy, agreed by an Extraordinary Energy Council on 24 November 2022, specifies (Article 2) that renewable energy projects are presumed to be “in the overriding public interest” when weighed against the Birds, Habitats and Environmental Impact Assessment directives – three of the most effective rules in the EU’s environmental toolkit that have long been a crucial brake to a broad array of industrial interests. Derogations to the obligation of performing environmental impact assessments are further noted in articles 3 (Installation of solar energy equipment) and 4 (Repowering of renewable energy power plants).
But nobody has asked citizens what we think. In the proposed version’s explanatory memorandum (point 3), the Commission notes that the situation is too urgent to consult with stakeholders or carry out impact assessments, but it plans to “engage with” stakeholders once it is too late, during implementation.
The idea is to set up an accelerated framework that bridges the gap until the Renewable Energy Directive, currently being revised, enters into force in 2024.
These “temporary rules of an emergency nature” are to be applicable for 18 months from entry into force, as opposed to one year, as originally proposed. The Commission will review the Regulation “in view of the development of the security of supply and energy prices and the need to further accelerate the deployment of renewable energy” – but seemingly not in light of environmental harm – by 31 December 2023, and may “propose to prolong the validity of this Regulation”.
In the view of Fern: Please don’t. This will give industry access to forests and farmland instead of prioritising where these projects are would not cause harm (rooftops, roadsides, parking lots, etc). According to an EU source, “This new focus on permitting is a big change of approach by renewable energy companies. For a long time, they wanted state aid, but with the new structure of the energy market it is less relevant so now focus is on permitting. On this issue, the European Commission has aligned itself with companies’ demands”.
Zoltan Kun, Friends of Fertő Lake Association, points out that, “The Council Regulation effectively echoes and supports the mentality exhibited in a recent open letter by the forest industry that attacks setting aside forests for wilderness areas.”
Hungary: Kun likens the EU proposal to Hungary’s Act LIII of 2006, intended to simplify implementation of investments of major economic importance. Adopted initially in 2006, it has been amended repeatedly since then, and now allegedly promotes projects “that violate local interests and often have a high risk of corruption and misuse of national and EU public funds”.
In September 2022, Hungarian NGOs wrote to EU Commissioners to highlight the Act’s misuse; they argue that it is being used to kick civil society out of the consultation process, pointing out that more than 1000 projects were deemed of “major economic importance” in the past four years. The NGOs reminded the Commission that in 2019 it had started infringement proceedings against Hungary for its too-liberal use of the designation, and urged the Commission to align national rules with the requirements of the Environmental Impact Assessment (EIA) Directive.
Ukraine: Since the war began, forests have been destroyed directly by hostilities, and tree-felling has increased to fuel the war economy, explains Yehor Hrynyk, Ukrainian Nature Conservation Group. Now Ukrainian forests are under attack from within.
The EIA procedure was introduced under the 2017 Ukraine-EU Association Agreement, and is required prior to logging. The rules offer Ukraine’s civil society a rare opportunity for involvement in forest management plans. For those reasons, they annoy Ukraine’s forestry industry, which has been trying to restrict or cancel it since its adoption five years ago, and to roll back efforts to combat corruption and illegality in the forest sector.
The Russian invasion had already handed the forestry industry a win: Ukraine’s Parliament suspended EIAs concerning projects to “rebuild” the nation.
Now two proposed laws may wipe the forestry industry’s slate clean. Draft law #8058 will deregulate business in Ukraine for a range of enterprises, including logging, without the public learning about it until decisions are finalised. Draft law #8178 would facilitate the construction of infrastructure in forests, also in the name of “rebuilding”. These will likely be passed, over the strong objections of NGOs against using the war as a pretext to undo environmental requirements.
Given its own proposed Regulation on accelerating deployment of renewable energy, how will the EU deal with the EIA issue in future discussions?
It takes decades or centuries to grow a tree and develop a sensitive habitat, and minutes to destroy them: on-again, off-again legal compliance does not work for the environment, for the climate, or for biodiversity. Principles of public participation should not be abandoned, especially when industry still gets a say. Moreover, companies will quickly adapt to this new way of doing business and will unavoidably protest when attempts are made to re-establish these rules.
It remains to be seen how “temporary” these measures will be.
Category: Forest Watch