Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

More documents

Recommendations

Info

concerning energy projects, in which appellants invoked the precautionary principle before the Afdeling. In a recent case before the Afdeling, the issue of the 'adaptive licensing approach’ and the precautionary principles were discussed. 361 Here, it concerned gas exploration (on the basis of the Mining Act) under the Waddenzee. Appellants invoked the precautionary principle, because they were of the opinion that the gas extraction contained too many uncertainties. The Afdeling did not address the question of whether or not the precautionary principle was breached, but instead focused on the fact that the project, due to the adaptive licensing approach, provided for a surveillance system on the basis of which could always be intervened. 362 This was sufficient, according to the Afdeling. In the annotation to this case, Van der Velde considers that the exportation of the precautionary principle from the Nbw-1998 to outside the conservation law seems arguable. 363 Otherwise, he argues, this would mean that animals or people living near a gas-project, located in a Natura-2000 area, are better off than if the project is not located in such an area. Also in other cases, the Afdeling has not yet addressed the question on the meaning of the precautionary principle outside the Nbw-1998. 364 The Afdeling has addressed the adaptive licensing approach (an application of the precautionary principle), although developed in conservation cases, in some cases concerning seismicity in the Bergermeer. 365 This could be an indication that the Afdeling also sees an application of the principle outside the Nbw-1998, which would of course also be in line with the EU legislation and case law. 5.7 Principle of environmental policy: prevention principle 5.7.1 EU level The principle that preventive action should be taken first occurred in the arbitration case Trial Smelter between the USA and Canada, which case dealt with international law. Here, the Tribunal has found that [U]nder the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. 366 (Made italic by author) This consideration is hereafter implemented in several international law declarations. First, Principle 21 of the UN Declaration on the Environment 1972 (Stockholm Declaration) reiterates this consideration, after which Principle 2 of Rio Declaration on Environment and Development has repeated this. Both of the Principles state: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. (made italic by author) The principle has also been enshrined in numerous other international Conventions (on the marine environment, climate, waste, biodiversity etc.). In some international treaties, the principle only 361 ABRvS 30 October 2013 (cases 201303971/1/A4, 201303980/1/A4, 201304179/1/A4, 201304171/1/A4, and 201303975/1/A4, ECLI:NL:RVS:2013:1766) AB 2014/74, m.nt. W.R. van der Velde. 362 Idem, paragraph 24.1. 363 ABRvS 30 October 2013 (cases 201303971/1/A4, 201303980/1/A4, 201304179/1/A4, 201304171/1/A4, en 201303975/1/A4, ECLI:NL:RVS:2013:1766) AB 2014/74, m.nt. W.R. van der Velde. 364 ABRvS 9 October 2013 (case 201300912/1/A1, ECLI:NL:RVS:2013:1455), JOM 2013/574; ABRvS 24 August 2011 (cases 200900425/1/R2 en 200902744/1/R2, ECLI:NL:RVS:2011:BR5684), BR 2011/174. 365 ABRvS 2 May 2012 (case 201105967/1/R1, ECLI:NL:RVS:2012:BW4561), JM 2012/74, m.nt. T.N. Sanders en Y. van Hoven, paragraph 2.28.4. 366 Arbitral Tribunal 11 March 1941 (Trial Smelter), http://untreaty.un.org/cod/riaa/cases/vol_III/1905-1982.pdf., p. 1965. 72
applies when “significant” damage may occur. 367 In a case of the International Court of Justice (ICJ) the principle has been affirmed to be a customary rule and part of the corpus of international law relating to the environment. 368 The prevention principle was included in the EU Treaty by the Single European Act. 369 Nowadays, the principle is, similar to the precautionary principle, to be found in Article 191(2) TFEU. It provides that European Union policy on the environment is to aim at a high level of protection and is to be based (inter alia) on the principle that preventive action should be taken. The prevention principle is also a fundamental principle of environmental protection. 370 The principle requires competent authorities to ensure at an early stage that the environment is protected. In other words: prevention is better than cure. 371 Instead of remedying occurring damage, no damage should occur at all. Pollution should be prevented at the source, according to this principle. The prevention principle requires competent authorities, if measures have been taken, to check frequently whether those measures are complied with by the parties and whether those measures are still in compliance with the principle or that new circumstances require for new measures. 372 The principle can also be found in many secondary EU legislation, such as the Industrial Emissions Directive (which replaced the IPPC-Directive), the EIA Directive, the Seveso Directive, the Waste and Water Framework Directives, etc. These Directives provide instruments for the implementation of this principle. The EIA Directive is a prime example of the implementation of the principle. It is stated in its preamble "that the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects". 373 The Best Available Techniques (‘BAT’), set out in the Industrial Emissions Directive, also provides for a good example of an instrument that implements the principle. The definition of BAT is according to Article 3 of the Directive: "the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole". 'Available techniques' means, according to the Directive, "those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator". This means that not always the best techniques can be required, because they are e.g. not economically viable (in other words: too expensive). Permits accorded to the Industrial Emissions Directive should include conditions that are set on the basis of BAT. In order to determine this, BAT reference documents are drawn up by the Union. The principle that preventive action should be taken should be distinguished from the precautionary principle. Although their content and their effect in practice are to a great extent similar, there is a difference in the predictability of the environmental danger. While the precautionary principle already requires action if it cannot be excluded on the basis of objective information that a project will have a significant effect on that site (here scientific certainty does not (yet) exist), the prevention principle 'only' requires action if the adverse effects for the environment are objectively established. 374 The level of certainty thus decides which principle is applicable; if scientific certainty is available, the prevention principle applies. 375 Although this seems a quite clear distinction, in 367 See e.g. Art. 2(1) of the Espoo Convention. 368 ICJ, case C-135 Argentina v Uruguay, 20 April 2010. 369 Jans & Vedder (2012), p. 47. 370 Case C-121/07 Commission v France [2008] ECR I-09159, paragraph 74. 371 Jans & Vedder (2012), p. 47. 372 Jans & Vedder (2012), p. 48. 373 Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC). 374 Fennis (2012), pp. 27- 28. 375 Backes et al. (2002), p. 82. 73
Page 1:
Shale gas extraction: In line with
Page 4 and 5:
Index 1 Introduction p. 7 1.1 Shale
Page 6 and 7:
7 Conclusions and Recommendations p
Page 8 and 9:
to spread in the European Union. It
Page 10 and 11:
2 Context In this chapter some back
Page 12 and 13:
the EU could produce more gas itsel
Page 14 and 15:
minor tremors and community disrupt
Page 16 and 17:
2.3.1.3 Seismicity The risk of seis
Page 18 and 19:
3 Current European legislation on s
Page 20 and 21:
As mentioned, Article 191(2) TFEU s
Page 22 and 23: the EIA Directive comes into play.
Page 24 and 25: project might have significant effe
Page 26 and 27: difficult to assess later on what p
Page 28 and 29: facilities used to receive such was
Page 30 and 31: Commission of the compensatory meas
Page 32 and 33: Operators carrying out any occupati
Page 34 and 35: On 18 September 2013, a day before
Page 36 and 37: once, by a maximum of 6 months. A d
Page 38 and 39: can occur is the infiltration of wa
Page 40 and 41: location near a sensitive area, suc
Page 42 and 43: establish an inpassingsplan. This i
Page 44 and 45: 4.6.2 Water As noted in Chapter 2,
Page 46 and 47: 4.7 Extraction permit The procedure
Page 48 and 49: 4.9 Overview problems From the anal
Page 50 and 51: 5 General (environmental) principle
Page 52 and 53: as a ground for invalidation). 211
Page 54 and 55: scale or effects of the proposed ac
Page 56 and 57: orders. Here, unilateral actions by
Page 58 and 59: 5.3 General principle: transparency
Page 60 and 61: emarkable that the CJEU also someti
Page 62 and 63: An important Dutch law which focuss
Page 64 and 65: follows after the subject is raised
Page 66 and 67: alance conflicting policies; the me
Page 68 and 69: prevailing social and political val
Page 70 and 71: It should be kept in mind, accordin
Page 74 and 75: practice this distinction is less v
Page 76 and 77: national legal system, such as the
Page 78 and 79: application for sustainable develop
Page 80 and 81: 6 Application of principles to shal
Page 82 and 83: The second justification concerns t
Page 84 and 85: Finally, it could also be questione
Page 86 and 87: Hence, these principles are really
Page 88 and 89: As set out in Chapter 5, the princi
Page 90 and 91: On the other hand, it should be rea
Page 92 and 93: this zone is made available. Also,
Page 94 and 95: With regard to the second part of t
Page 96 and 97: 7.1 Conclusions Some remarks can be
Page 98 and 99: Gas is currently in development. In
Page 100 and 101: national interest and an imperative
Page 102 and 103: safeguarding of the drinking water,
Page 104 and 105: • Prechal & De Leeuw (2008) S. Pr
Page 106 and 107: • Q&A on the shale gas initiative
Page 108 and 109: • Case C-117/02 Commission v Port
Page 110: Websites • http://www.eia.gov •
show all

Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?