elni NEWS - Öko-Institut eV

14
1/2003 Environmental Law Network International
IPPC directive regarding energy efficiency requirements
(Article 3 IPPC Directive) and greenhouse
emissions reductions constraints.
The inaccuracy of the wording of Article 25 of the
proposed ET led several actors – including Member
States – to request the Commission for clarification.
7 Basically, the Commission through the Non-
Paper explained that the imposition of an emission
limit value – as it would be required by the IPPC
Directive – would eliminate the possibilities of
trading as that would prevent operators to increase
its greenhouse gas emissions. Furthermore, one
should keep in mind that CO2 does not cause local
pollution. Yet, other greenhouse gases – CH4, N2O,
HFCs, PFCs and SF6 –, which in the future will be
included into the emissions trading, might have
local effects. In this last case, Article 25 adds that
Member States shall include emissions limit values
from those gases into the IPPC permit in order to
avoid significant local pollution. Accordingly, as
the Commission explained also in its Non-Paper, in
case of significant local pollution, operators will
continue to be able to participate in emissions trading
but without the possibility of increasing emissions
above the emissions limit values included into
the IPPC permit.
It is clear that through Article 25 the Commission
intended to guarantee a high level of environmental
protection. Nevertheless, Article 25 presents certain
deficiencies. First of all, Article 25 only refers to
greenhouse gases, whereas substances or gases
other than greenhouse gases might be intimately
related with the emission of greenhouse gases and
originate as well local pollution effects. This problem
appears for instance when the emission of a
greenhouse gas is directly associated with the emission
of other substances/gases. If the emission of a
greenhouse gas automatically implies the increase
of another regulated substance, or to the contrary, if
the decrease in emissions from a substance is followed
by the increasing of a greenhouse gas, there
will automatically be a conflict of environmental
laws. Such a discordance is not, however, exceptional,
and as a matter of fact implementing authorities
are frequently exposed to this kind of situations
and trade-offs among environmental regulations.
7 Art. 25 of the proposed ET directive:
In Art.. 9(3) of the Directive 96/61 the following sub-paragraph is added:
Where emissions of a greenhouse gas from an installation are specified in
Annex I to Directive / /EC of the European Parliament and of the Council
[establishing a scheme for greenhouse gas emission allowance trading
within the Community and amending Council Directive 96/61/EC) in relation
to an activity carried out in that installation, the permit shall not include
an emission limit value for direct emission of that gas (unless it is nece ssary
to ensure that no significant pollution is caused). Where necessary,
the competent authorities shall amend the permit to remove the emission
limit value”.
Thereby one could foresee conflicts of that kind
when the Emission Trading Proposal will enter into
force in parallel with the IPPC Directive. In addition,
the broad discretion and flexibility retained by
Member States both under the IPPC and the proposed
ET Directive in the implementation process
might accentuate the above described problem.
Indeed, according to Article 9.4 of the IPPC Directive,
Member States should fix emission limit values
for pollutants based on the Best Available
Techniques (BAT) taking due considerations of the
technical characteristics of the installation, its geographical
location and the local environmental conditions,
these last requirements giving a large margin
of discretion to Member States. As far as the ET
Proposal Directive is concerned, it does not include
the concept of Best Available Technology, but one
should consider the Report by the EU Parliament 8
which in its amendment 42 upon the allocation
criteria called for the allocation of allowances being
based on the benchmarks derived from reference
documents relating to the BAT. Equally, Annex III
of the proposed ET Directive referring to the criteria
for national allocation plans provides for very
flexible guidelines and concepts such us the consideration
of technological potential of installations.
All that simply means that both directives will be
differently implemented in different Member States,
and that in case of conflicting points between the
IPPC and the ET environmental authorities will
dispose according to both directives of a large discretion
to decide about the environmental trade-off
to be undertaken. In this respect, an illustrative
example is the English case, in which the regulator
(Environmental Agency) in its Horizontal Guidance
Note, IPPC H2 – Integrated Pollution Prevention
and Control IPPC, Energy Efficiency 9 - has shed
light on the integration of the UK Emission Trading
program within the energy efficiency requirement
by stating that:
“Nothing in a Climate Change Agreement or
Trading Agreement will prejudice any other requirement.
In the case of trade-off between increased
energy consumption and improvement
of other environmental objectives the Operator
should undertake an environmental assessment,
taking into account the costs and environmental
benefits, to justify the selection of the BAT for
prevention and minimising pollution to the environmental
as a whole”.
8 Parliament Report on the proposal for a European Parliament and Council
directive establishing a scheme for greenhouse gas emission allowance
trading within the Community and amending Council Directive 96/61/EC,
A5-0303/2002, 13-09-2002.
9 Horizontal Guidance Note, IPPC H2 - Integrated Pollution Prevention and
Control IPPC, Energy Efficiency, January 2001, Environmental Agency.