European Environmental Law Lectures at Lomonossow University

European Environmental Law Lectures at Lomonossow University , Moscow 21 -25 April, 2013 Professor Gerd Winter University of Bremen, Germany

Overview • General issues – – • Horizontal environmental law – – – – • History Competences Principles Instruments Environmental Impact Assessment Access to information Participation in procedures Access to justice Liability for damage Ecolabel, Ecoaudit Ecodesign Sectoral environmental law (examples) – U-Turn of energy policy: nuclear power, climate protection, renewables – Waste – Biotechnology

Introduction to EU Law • EU = Union of 25 Member States, soon 26 (Croatia) • Supranational organisation: – Powers to make law in certain policy areas – Law directly applicable in MS – State like separation of powers • Legislature: democratic election • Executive: mostly by MS, but more and more EU administration • Judicature: legal protection of citizens by MS and EU courts • Development from economic integration to (imperfect) social integration, including environmental protection • Recent crisis: economic integration through monetary union, but lack of margin for MS economic policy => crossroad more or less integration?

Sources for Studying EU Environmental Law • Textbooks – Ludwig Krämer, EU Environmental Law, 7 th ed. 2012 – Jans, Hans Vedder, European Environmental Law 4 th ed. 2012 • Legal acts: http: //eur-lex. europa. eu/RECH_menu. do • Court decisions: http: //curia. europa. eu/juris/recherche. jsf?

Tension release of capitalist energy – environmental stress • Internal market (basic freedoms of movement of products, labour, establishment, services, capital, 34, 45, 49, 56, 63) => increase of pollution from production, products, waste, transportation • Encouragement of construction of infrastructure (roads, ports, airports, 170, energy networks, 194); support for industrialisation of agriculture, 39 => loss of biodiversity

Two modes of environmental regulation • Negative integration: – environmental regulation by MS – EU check whether reasonable or disguised protectionism (eg Art. 34, 36 TFEU) – Decision taken by courts in treaty infringement procedure or individual claims – Eg product quality regulation (lead in gasoline) • Positive integration – Environmental regulation by EU („harmonisation“) (eg (Art 114 TFEU) – Opposing MS law set aside – Possibly power of MS to go further (Art. 114 V TFEU)

Case on negative integration • ECJ Case C-379/98 no. 68 -81 Preussen Electra: feed-in right for electricity from renewables, guaranteed minimum price. Implicit exclusion of electricity from foreign sources. => Art. 34, but justified by 36 and rule of reason

EU compentences in environmental law • Art. 191/192 for environmentally damageable activities – MS can go further if measures are even more protective (Art. 193) • Art. 114 for environmentally damageable products – MS can go further if measures • Based on new scientific knowledge • Specific and new problem in the MS • Approval by EU Commission • Art. 11 Integration principle

EU compentences in environmental law • Art. 191/192 TFEU Art. 191: Union policy on the environment shall contribute to pursuit of the following objectives: — preserving, protecting and improving the quality of the environment, — protecting human health, — prudent and rational utilisation of natural resources, — promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. Art. 192: The European Parliament and the Council, acting in accordance with the ordinary legislative procedure […] shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.

Case on Art. 193 TFEU (see Eu. GH C-203/96 Dusseldorp • Bremer Fabrikant F will Altöl aus seinen Maschinen an polnischen Verwertungsbetrieb V liefern. Behörde untersagt Verbringung, weil Altölverwertungsanlage in Bremen ausgelastet werden müsse und Verwertung mit weniger Reststoffen ermögliche. Anfechtung vor VG • Rechtsgrundlagen: – Deutsches Abfall. G (fiktiv): Entsorgungsautarkie für alle Abfälle – EU Abfallverbringungs. VO • Schreibt für ‚Abfälle zur Beseitigung‘ Möglichkeit der ‚Entsorgungsautarkie‘ vor, nicht aber für ‚Abfälle zur Verwertung‘ • RM des VA (nur materiell) – – Vereinbarkeit mit dt Abfall. G? Vereinbarkeit des dt Abfall. G mit EU-VO? Weitergehen nach Art. 193 AEUV? Vereinbarkeit mit Art. 34/36 AEUV? • Handelsbeschränkung? • Rechtfertigung?

EU compentences in environmental law • Art. 114 – The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

EU compentences in environmental law • Case – „Goldplating“: Abs. 5 u. 6 (example GMO – General Court T-366/03 Öberösterreich) • New scientific evidence • Specific and new problem for MS • Notification to and consent of Commission

EU compentences in environmental law • Art. 11 – Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.

EU competences in environmental law Fine tuning of relationship EU/MS • Principle of conferral Art. 5 I, II • Subsidiarity principle Art. 5 III • Exclusive EU/shared competence – Environment policy is a shared competence Art. 4 – The Member States shall exercise their competence to the extent that the Union has not exercised its competence Art. 2 • Modalities of legislative procedure (sometimes unanimity in Council, eg Art. 192 IIa) • Category of legal act Art. – Regulation – Directive • Safeguard clauses Art. 191

Principles of EU environmental law • Content – – – Sustainable development Art. 3 III, IV TEU High level of protection Art. 191 TFEU Precaution Art. 191 TFEU Prevention Art. 191 TFEU Source Art. 191 TFEU Polluter pays Art. 191 TFEU • Legal status – Binding – Margin of discretion – Difference of situation: enabling or commanding

Sustainable development • Art. 3 III TEU The Union shall […] work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.

Sustainable Development: weak version = 3 columns, a roof Future Generations Economy Nature Social Welfare

Sustainable Development: strong version = a fundament, 2 columns, a roof Zukünftige Generationen Soziale Wohlfahrt Wirtschaft Natur

Sustainability: perverted Version • BASF: Sustainable Profitable Performance • ‚Ongoing profitable performance in the sense of Sustainable Development is the basic requirement for all our activities. We are committed to our customers, shareholders and employees and assume a responsibility towards society. ‘

Principles: high level of protection • Enabling: highest level • Commanding: adequate level • Case ECJ C-284/95 Safety High Tech: Competitor complains that certain chemicals of competing company have not been banned.

Precaution • Cases Pfizer, BSE, Paraquat – „Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent. “ • Operator vs EU (Pfizer Case T-13/99) • MS vs EU (negative) (BSE Case C 180/96) • MS vs EU (positive) (Paraquat Case T-229/04) • COM (2000)1: no carte blanche

Precaution • From the „if at all“ of measures to the kind of measures: – Precautionary thresholds – Precautionary means • Best available technology (eg filters) • IPPC Directive: – Member States shall. . . ensure that installations are operated in such a way that: • (a) all the appropriate preventive measures are taken against pollution, in particular through application of the best available techniques; • (b) no significant pollution is caused;

Precaution • Balancing of interests, especially role of cost effects of precautionary measures => BATNEEC (best available techniques not entailing excessive cost) • IPPC Directive Art. 2 No. 11: – „‘available’ techniques shall mean 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, . . . “ • Differentiation between risk assessment and risk management

Prevention • From ex post measures (criminal law, administrative offenses, monitoring) • To ex ante measures – Permit, EIA – Legal protection at ex ante stage

Legal forms of environmental law • Forms – Regulation: exhaustive; directly applicale within MS – Directive: determination of objectives and discretion of means; to be transformed into MS law; direct effect after expiry of transformation deadline – Decision: individual case; directly applicable by addressee • Author – Original legal act: Com/Council/EP – Delegated legal act (‚non essential matters‘): Com (Art. 290 I TFEU) – Implementing legal acts: Com, committees of MS representatives (Art. 291 II, III TFEU)

Instruments of environmental protection • Regulatory instruments („command control“, „direct and determine“) – Ex ante (preventive): legal and technical standards for production and products, prior notification, prior permit – Ex post • repressive: punishment, liability, remediation • curative: alteration of permit, enforcement order • Economic instruments – Charges for pollution – Capping and trading pollution rights – subsidies • Voluntary instruments – Committments (codes of conduct), agreements – Environmental audit – Environmental label

Horizontal environmental law • • • Environmental impact assessment Access to information Participation in procedures Access to justice Liability for damage Voluntary instruments

Environmental impact assessment • • Background Espoo Convention Parallel to Russian concept Directives 2011/92 and 2001/41 Characteristics – – – Project EIA/ Plan and Programmes EIA Scoping Information to be submitted by operator Alternatives Additional information through public participation and own sources of administrative agency – Final document prepared by authority – EIA to be taken into account; no final conclusion on the project/plan – Court review on complaint by individual or association

Access to environmental information • International background Aarhus Convention • Active/ passive information flow administration – citizen • Passive information = right of access important for info which authorities would rather like to keep secret • Directive 2003/4 for MS info, Regulation 1049/2001 for EU info

Aarhus Convention • CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS • done at Aarhus, Denmark, on 25 June 1998

Aarhus Convention • Art. 4 Each Party shall ensure that …public authorities, in response to a request for environmental information, make such information available to the public …including copies of the actual documentation containing or comprising such information: Without an interest having to be stated; (a) In the form requested unless: (i) It is reasonable for the public authority to make it available in another form, in which case reasons shall begiven for making it available in that form; or (ii) The information is already publicly available in another form.

Access to environmental information • No showing of legal interest => everyone‘s right • Notion of public authority includes private entities with public function – ‘any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of [an administrative agency]’ Art. 2 b) Dir 2003/4 • No prohibitive fees • Exceptions: if disclosure has adverse effects on – – Legally provided confidentiality of proceedings of public authorities Legally provided confidentiality of personal data Legally provided confidentiality of commercial information International relations, security, defense • Exceptions to be constructed narrowly and weighed against public disclosure interest

Confidential commercial information • Defined in Art. 39 TRIPS 2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices 10 so long as such information: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. • Context competition law; in the context of environmental law weighing against disclosure interest prescribed • Emission information in no case to be kept secret

State secret • Directive 2003/4 does not introduce the term of state secret => specification international relations, public security, national defense • State secret a term for the internal administrative sphere (how and what to earmark, what personnel shall have access, etc). Legislation on disclosure, esp re environmental protection, opens up weighing against public interest. Thus, state secret broader than accepted official secret. • Case on secrecy of international relations CFI T-301/10 Sophie in‘t Veld vs Com

Participation in administrative procedures • Definition: ‚notice and comment‘ • Functions of procedures – Collection of information from different sources – Influence by argument and pressure • Constitutional background – Participation as improvement of performance of public authorities => no right of citizens – Participation as protection of individual rights (health, property) at early state in procedures=> right bound to individual interest (conception of „bourgeois“) – Participation as a democratic right => right not bound to individual interest (conception of „citoyen“) – Participation as representation of „bundled individual rights“, „partial public interests“, „corporate democracy“, represented by NGOs => right of collectives • Conception of „civil society“ including „citoyen“ and corporations (NGOs) • Question: is there a civil society in Russia?

Participation in administrative procedures • Legal approach: combination of individualist, democratic and collective conception – Democratic => public notice of project – Individualist and collective => notice of details of project and ist effects; right to comment • International background: Aarhus Convention • Article 6 on public concerned (including NGOs)

Each Party shall require the competent public authorities to give the public concerned access for examination …free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4: (a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions; (b) A description of the significant effects of the proposed activity on the environment; (c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions; (d)… (e) An outline of the main alternatives studied by the applicant; and (f) … 7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.

Participation in administrative procedures • Directive 2003/35 – Prescribing participation in procedures of EIA and concerning industrial installations – Public at large must be informed of project applications – Public concerned (including NGOs) must be informed about dossier including precise info on project and effects; comments must be allowed and considered – Public at large must be informed about final decision – Foreign countries must be informed of projects having external effects; public participation to be opened foreign public concerned

Participation in regulatory procedures • No concrete requirement under horizontal EU law; but to be found in sectoral law (eg prohibition and authorisation of chemical substances under REACH Regulation) • Aarhus Convention Art. 8: Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. • Question: what about RF Law on Normative Acts?

Preclusion of participation; effects of procedural failure • Preclusion of court review of facts that could have been submitted in the administrative proceedings: introduced at MS level; compatibility with EU law doubtful • Effects of procedural failure – In principle: final decision unlawful – Exception of irrelevant failure • Essential procedural requirement (cf Art. 263 II TFEU) • Other requirements: test of potential influence on final decision – Rectification: until the end of administrative decision-making, including complaint procedure; but only if alternative possible (Case C-416/10 Križan: planning permission withheld in authorisation procedure; rectified at second instance admininistrative procedure)

Court review of administrative action/inaction • Criminal law (ex post) • Administrative infringement law (ex post, moving towards ex ante) • Administrative law (ex ante)

Court Admin Publ. Prosec. Operator Neighbour NGO

Court review of administrative action/inaction • Function of court review – Centralist conception (France: central state ensures legality of subordinate authorities): => „objective“ checking of legality of lower administrative bodies; broad concept of standing; association action welcome – Democratic conception: (India, Brazil etc. : courts as countervailing power protecting the less powerful against inactive administration): => „objective“ checking of legality of lower administrative bodies; broad concept of standing; association action welcome – „subjective“ protection of individual rights (German tradition: autocratic state (Obrigkeitsstaat) checked in terms of basic rights => plaintiff must substantiate encroachment on individual right (health, property) => problem for third parties; no association action – To be considered: difference in density of court review

International law background: Aarhus Art. 9 • Combination of democratic and individualist conceptions • On individuals: Each Party shall, within the framework of its national legislation, ensure that members of the public concerned (a) Having a sufficient interest or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law …to challenge the substantive and procedural legality of any decision, act or omission …. • On NGOs: … the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

Court review of MS administrative action/inaction • EU approach: distinguish between MS and EU • Concerning MS: centralist conception (interest in enforcement of EU law) = broad standing rights – Projects subject to EIA/IPPC: Directive 2003/35 ensuring standing for de facto concerned individuals and NGOs aiming at environmental protection – In general: Principle of effectiveness and equivalence • Case ECJ C-237/07 Janecek: subjective right of neighbour to ask for action plan for measures implementing air pollution thresholds; acknowledged although concerned public not individualized

Court review of EU administrative action/inaction • Competent Courts: General Court and Court of Justice • Art. 263 IV TFEU: ‘Any natural or legal person may […] institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. ’ • Case CFI T-585/93, ECJ C-321/95 Greenpeace v Com: Com subsidises 2 power stations on Canary Island. Neighbours and Greenpeace appeal at CFI: no individual concern. ECJ: no direct concern; possibility of action before MS courts with preliminary questions under Art. 267 TFEU; no association action • Improvement of access through Regulation 1367/2006: application of NGOs for internal review of administrative acts; access to General Court against answer, but „according to the relevant provisions of the treaty“

Responsibility for environmental damage • Categories – Sanctions under criminal law => punishment for violation of moral principles – Sanctions under administrative offenses law => punishment for violation of technical rules – Payments for damage => Pricing environmental damage – Charges/ taxes for utilization of natural resources (eg groundwater, emissions) => pricing resource uses – Liability for property damage => compensation for economic costs of damage – Liability for environmental damage => remediation of environmental damage

Liability for property and environmental damage • Traditional – Fault based – Environmental damage as property or health damage • „Environmentalist“ – Non fault (national legislation on dangerous installations or dangerous activies (GMO, product liability) – Environmental damage as such

EU environmental liability • Directive 2004/35 – Scope • Personal: operators of occupational activities • Material: environmental damage (water, soil, protected species and habitats), – Preconditions: adverse effect, not linked to property or health (exception: soil), causality, non-fault – Remedies • Public law concept: power of administrative agency to order • Remediation by operator or by agency at the cost of operator • Access to justice for NGOs and affected persons

Voluntary instruments • Ecolabel Regulation 66/2010 • Eco-Audit Regulation 1221/2009

Sectoral environmental law: Change of energy policies • Reasons – Climate effects of fossil energy sources („carbon society“): CO 2 emissions from households, industry, transport – Industrialised agriculture (methane) – Risk of nuclear catastrophies, unsolved problem of waste disposal – Shortage of fossil energy sources – Environmental effects of oil/ coal/ gas extraction (eg open pit mining, fracking)

Change of energy policies • From fossil and nuclear to renewable sources. 4 strategies – Stepping out of nuclear energy – Reducing climate gas emissions – Energy efficiency – Supporting renewables; coping with adverse sideeffects

Stepping out of nuclear energy • EURATOM aimed at fostering nuclear and setting safety standards; but no command of introduction • German legislation after Tchernobyl (1986) and Fukushima (2011): schemes of phasing out – Last timeline: immediate closing down of older 8 power plants; rest of 9 plants to be closed by 2021(after operation time of ~ 35 years) – Problem of expropriation • No „taking“ of property • Indirect or regulatory expropriation? • German constitutional court: historical change of policies allows dissolution of property positions – Problem of decommissioning and waste disposal • Costs • Safety • Why Germany?

Reducing climate gas emissions; focus CO 2 • Capping emission quantities of EU and Member States – Kyoto Protocol: EU committed to 92 % of 1990 emissions by 2012; new „voluntary“ committment to 80 % of 1990 by 2020 (20/20/20 target) – Council Decision 2002/358: burden sharing among MS; eg Germany: 80 % = ~ 900 mio t per year • Capping emissions of from individual sources – 50 % for large combustion industries: „cap and trade“ (system of allocation of emission rights with trading, based on Directive 2003/87; example of an economic instrument – 50 % for small industry, households, transportation: various directives applying command control instruments

Cap and trade (large combustion industry) • Overall quantity of the sector (~ 450 Mio t/a) to be allocated (the ‚cap‘ element) – First tranche: free of charge; grandfathering; minus 3 %; – gradual introduction of auctioning (now 20 %, in 2025 100 %) • Yearly surrender of emission rights (one allowance = 1 t) corresponding to actual emission quantities • Emission rights are tradeable (the ‚trade‘ element); options of operator – To invest in emission reduction and to sell rights – Not to invest and surrender rights, if needed to buy additional rights – In addition: Acquire rights from investment in projects in other countries that lead to emission reduction • Clean development meachanism (CDM) • Joint implementation (JI)

Cap and trade (Assessment) • Target more or less reached, not by all MS but on average • Reduction not due to the instrument but – to the decline of industry in central Europe including GDR. economic crises – the current economic crisis • Price per emission right very low (3 -4 €); no incentive to invest in reduction technology or change consumption behaviour • Much more could have been achieved through phasing in ever stricter caps, but „rights“ rhetoric assumes property in emissions • Command control would have been more efficient: emission standards, environmental quality standards, technology requirements, consumption standards • Theoretical framework: commodification of the climate • See my article in G. Winter, Aktualnye problemy ecologicheskovo prava w epochu globalisatsi, ed Olga Dubovik, 2013

Energy efficiency • • Measures to reduce energy consumption Directive 2006/32 – – Indicative energy saving target of 9 % by 2015 Energy efficiency plans Exemplary role of public sector Competition of energy saving services and energy efficiciency improvement measures – Greening of fiscal instruments (taxes, subsidies) – Meters measuring individual households‘ energy consumption – Energy bills to inform about comparative consumption • Directive 2010/31 – Standards for energy efficiency of new buildings and renovation of large existing buildings – All new buildings to be near zero-energy by 2020 and based on renewables – Energy performance certificate to be provided when the building is constructed, sold or rented

Renewable Energy Sources • Directive 2009/28 • Target 20 % renewables by 2020, with 10 % for transportation • Measures widely left to MS (subsidies, command control, economic instruments) • Example Germany for electricity from renewables (wind, sun, water, biomass): – feed in right of producer – fixed price at higher level than market price – to be born by all consumers (renewables levy); increasing because high input from renewables lowers the market price • Problem biomass – Industrialisation of agriculture; maize monocultures – Sustainability criteria

Air pollution (exemplary for regulatory approach) • Double approach – Air quality (immission) thresholds – Emission ceilings • Air quality thresholds: Directive 2008/50 – MS to monitor present situationand identify problem areas – Limit values (health) and critical levels (vegetation) fixed on EU level (Annex XII/XIII), to be reached within certain terms – Thresholds covering all emissions except for natural sources – Air quality and action plans to be established for non-attainment zones

Limit values and critical levels (Dir 2008/50 Annex XII) (in µg/m 3) Limit value (health) Margin of tolerance Critical level (vegetation) SO 2 350 per hour 43 % 125 per day no 20 per year NOx 200 per hour no 40 per year no 30 per year Benzene 5 per year no CO 10 mg p. day no PM 10 50 per day 15 times per year

Emission ceilings • Directive 2001/81 National emission ceilings for SO 2, NOx, volatile organic compounds and ammonia • Based on Gothenburg Protocol to UNECE Convention on long-range transboundary air pollution • Specified for different sources by – Directive 2010/75 (IPPC) on industrial installations (BVT) – Directive 2001/80 on large combustion plants (phasing in/out concept) – Directive 2000/76 on incineration of waste – Regulation 715/2007 on emission standards for vehicles

Waste law • Factual situation: – „wild“ deposit sites, lack of landfill sites, leakages into groundwater – toxic waste contaminating soil and groundwater, incineration causing air pollution, exportation to low standard countries – Valuable raw material wasted: iron, precious metals, wood • 4 strategies introduced since 1989 – – Prevention of waste generation => better products Reuse, recycling, recovery of raw material or energy Safety of disposal, safe incineration Remedial action concerning contaminated sites • Core legal acts – Directive 2008/98, repealing Directive 75/442

The notion of waste • Distinction ‚waste‘ vs ‚non-waste product‘ triggering different regulatory regimes: waste is more densely supervised than products. – Eg: authorisation requirement for treatment of waste (not of treatment of products) • ‘waste’ means any substance or object which the holder discards or intends or is required to discard (Art. 2 Dir 2008/98 – No matter if the object has economic value, eg discarded but still operable PC – By-products (direct use possible) – End of waste status (outcome of recovery operation) – Faecal matter, straw etc from agriculture and forestry excluded from scope

Waste hierarchy • Art. 4 Dir 2008/98 – 1. The following waste hierarchy shall apply as a priority order in waste prevention and management legislation and policy: (a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery, e. g. energy recovery; and (e) disposal. – 2. […] Member States shall take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste. • Art. 28, 29 Dir 2008/98 – Waste management plans – Waste prevention programmes

Prevention • Example hazardous substances in electrical and electronic equipment. Directive 2002/95 Art. 4: Member States shall ensure that, from 1 July 2006, new electrical and electronic equipment put on the market does not contain lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB) or polybrominated diphenyl ethers (PBDE). Phasing out schemes concerning various products(Annex) • Example waste prevention in industrial installations. Directive 2010/75 Art. 11 Member States shall take the necessary measures to provide that installations are operated in accordance with the following principles: (d) the generation of waste is prevented in accordance with Directive 2008/98/EC;

Reuse, recycling, recovery of energy • Vehicles. Directive 2000/53 Art. 7: quota 2. Member States shall take the necessary measures to ensure that the following targets are attained by economic operators: (b) no later than 1 January 2015, for all end-of life vehicles, the reuse and recovery shall be increased to a minimum of 95 % by an average weight per vehicle and year. Within the same time limit, the re-use and recycling shall be increased to a minimum of 85 % by an average weight per vehicle and year. Art. 5: collection, treatment 1. Member States shall take the necessary measures to ensure: — that economic operators set up systems for the collection of all end-of life vehicles and, as far as technically feasible, of waste used parts removed when passenger cars are repaired, — the adequate availability of collection facilities within their territory. 2. Member States shall also take the necessary measures to ensure that all end-of life vehicles are transferred to authorised treatment facilities. 3. Member States shall set up a system according to which the presentation of a certificate of destruction is a condition for deregistration of the end-of life vehicle.

Reuse, recycling, recovery of energy • Paper, metal glass, plastic. Directive 2000/53: : Separate collection, recycling quota per weight. Art. 11 Member States shall take measures to promote high quality recycling and, to this end, shall set up separate collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors. Subject to Article 10(2), by 2015 separate collection shall be set up for at least the following: paper, metal, plastic and glass. Member States shall take the necessary measures designed to achieve the following targets: (a) by 2020, the preparing for re-use and the recycling of waste materials such as at least paper, metal, plastic and glass from households and possibly from other origins as far as these waste streams are similar to waste from households, shall be increased to a minimum of overall 50 % by weight; • Packaging. Directive 94/62 fixes recycling/incineration quota (eg 60 % paper and board) as well as take return duties (combined with payments by economic operators

Safe disposal • Mixed municipal waste: – MS must establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households, Art. 16. 1 Dir 2008/98 – The network shall ensure self-sufficiency (on EU scale), and proximity, Art. 16. 2 u. 3 Dir. 2008/98 – The installations must operate environmentally safe (Art. 12, 13 Dir 2008/98) – Costs: waste producer pays for waste disposal, but MS may make producers and distributors of products bear the costs (example packaging regime in Germany) (Art. 14 Dir 2008/98)

Hazardous waste • • Production, collection, transportation, storage and treatment of hazardous waste must be safe for the environment and human health (Art. 17 Dir 2008/98) No mixing or dilution of hazardous waste (Art. 18 Dir 2008/98) Labelling of hazardous waste (Art. 19 Dir 2008/98) Responsibility for waste management (Art. 15 Dir 2008/98) – In principle with waste producer; not discharged by transfer to treatment or disposal – But subject to MS legislation which may introduce delivery scheme to private or public collector • • Costs: waste producer pays for waste management (incl treatment and disposal), but MS may make producers and distributors of products bear the costs (Art. 14 Dir 2008/98) Undertakings treating hazardous waste, the producers, undertakings collecting or transporting, dealers must keep chronological record of the quantity, nature and origin of the waste, the destination, frequency of collection, mode of transport, treatment method, and shall make that information available, to the competent authorities (Art. 35 Dir 2008/98)

Treatment for recycling, recovery, disposal • Treatment must be safe for health and environment • Permit requirement (Art. 23 Dir 2008/98) • Register of undertakings managing waste (Art. 26 Dir 2008/98) • Minimum standards (Art. 27 Dir 2008/98) • Inspection (Art. 34 Dir 2008/98)

EC legislation on green biotechnology Focus on genetic modification

What is genetic modification? Art. 2 (2) Directive 2001/18: GMO means an organism, [. . . ] in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination. 3 organisms involved: - host organism: formation of new combinations of genetic material - donor organism: providing nucleic acid molecules - vector organism (virus, bacterial plasmid) used for transportation into host organism

• (Economic) Benefits to Society – Improved products – Improved production – Some costs involved • Risks to human health and environment – Risks from products – Risks from production

Benefits to society: improved products – designed food (nutritional value) – designed feed (accelerated growth) – designed industrial plants and animals (energy saving, medicinal substances) – designed microorganisms • bacteria (e. g. waste treatment) • virusses

Benefits to society: improved production – herbicide resistance => simplification of treatment with chemical herbicides – insecticide properties => avoidance of pesticides – drought tolerance => extension of cultivation – improved nitrate intake => accelerated growth – Costs to society: – agroindustry (loss of employment) – terminator technology excludes use of crop as seed

Presentation 07/EFSA meeting

Risks to human health and environment: GM products • human health: – toxicity (< from insecticide property) – allergenicity – gene transfer to bacteria in digestive tract (< from antibiotica resistence) • environment – spillover from transportation – introduction into environment as waste

Risks to human health and environment: production with GMOs – direct effects on nature (effects of GMO) • targeted effects on parasites and predators => ecosystem • side effects on parasites and predators => ecosystem (e. g. monarch butterfly feeding on crosspollinated blossoms – indirect effects on nature • growing wild of GMO • vertical gene transfer (to relatives, e. g. rape: adoption of eg herbice resistance, insecticidity, terminator genes) • horizontal gene transfer to other species, especially properties taken from bacteria such as antibiotics resistance – indirect effects through change in cultivation • increase in use of herbicides => loss of biodiversity • pressure towards single brands => loss of biodiversity

EU and US regulatory approaches US piggy-back: Checking of GMO risks attached to existing health and environmental protection regimes. „One door one key“ EU separate track: Production and marketing of GMOs subjected to specific regimes. „One door, two keys“ (exception: drugs)

US and EU philosophies • US – nature as tradeable good – culture of experimentation • EU – nature as sanctified good – culture of precaution • And China?

GMOs in contained use Directive 90/219 as amended • GM uses classified in 4 risk classes • Control regime tailored according to risk class – Negligible risk => notification of first use – Low risk => notification of first and subsequent use – Moderate and high risk => prior consent to first and subsequent use

GMOs in contained use • Public participation in licensing procedure in some Member States, eg Germany • Access of the public to information, including – the general characteristics of the GMOs, name and address of the notifier, and location of use, – class of contained use and measures of containment, – the evaluation of foreseeable effects on human health and the environment • Legal standing for operators and neighbours

Deliberate (experimental) release of GMOs Directive 2001/18 as amended, part B • Notification and prior consent required • Procedure: – Application with environmental risk assessment submitted to MS authority – Forwarding of summary notification to Commission and other MS; right to comment – Publication of summary notification; right of public to comment – Review of risk assessment and decision by MS

Deliberate (experimental) release of GMOs • Access of the public to information, including – – – general description of the GMO, name and address of the notifier, purpose of the release, location of release and intended uses; methods and plans for monitoring of the GMO and for emergency response – environmental risk assessment.

Deliberate (experimental) release of GMOs Legal standing • of the applicant and • individual persons possibly adversely affected (eg neighbouring farmers)

Placing on the market of GMOs (general) Directive 2001/18 as amended, part C • Notification and prior consent required • Application submitted to MS authority • Assessment report by MS authority • Forwarding of summary notification and assessment report to Commission and other MS; right to comment • Publication of summary notification and assessment report; right to comment • Decision of Commission in case of divergent MS opinions • Decision of MS following Commission decision

Placing on the market of GMOs (general) • Authorisation valid for all MS • Access of the public to information, including – – – general description of the GMO, name and address of the notifier, purpose of the release, location of release and intended uses; methods and plans for monitoring of the GMO and for emergency response – environmental risk assessment.

Placing on the market of GMOs (general) Legal standing • of the applicant and • but not of third parties (consumers etc. )

Placing on the market of GMOs: Food and Feed Regulation 1829/2003 • Procedure – Application with environmental risk assessment at MS authority – Forwarding to EFSA (Europ. Food Safety Authority) and othet MS; right to comment – Opinion of EFSA – Application and opinion to be made public; right to comment – Decision of Commission after voting of MS committee

Placing on the market of GMOs (food and feed) • Access of the public to information, including – – – general description of the GMO, name and address of the notifier, purpose of the release, location of release and intended uses; methods and plans for monitoring of the GMO and for emergency response – environmental risk assessment.

Placing on the market of GMOs (food and feed) Legal standing • of the applicant • but not of third parties (consumers etc. )

Placing on the market of GMOs: appraisal • MS majority critical of GM-technology blocked approval of GMOs for 5 years (moratorium) • Complaint of US, CAN e. a. at WTO • Reg 1829/03 shifts approval competence for food, feed and seeds to EFSA and Commission • Sept. 2006 Panel report: moratorium in breach of SPS agreement

Risk assessment methodology Environmental risk assessment – To be submitted by applicant; assessment report by competent authority – Direct effects (toxicity of crop for consumer; for target and non-target species) – Indirect effects on nature (vertical and horizontal gene transfer) – Indirect effects through cultivation (loss of biodiversity)

Monitoring plan • Deliberate release: submission of monitoring plan compulsory • Placing on the market: submission of monitoring plan „when appropriate“ • Determination of monitoring duties in authorisation

Substantive criteria Art. 4 Dir 2001/18: Member States shall, in accordance with the precautionary principle, ensure that all appropriate measures are taken to avoid adverse effects on human health and the environment • Precaution • No adverse effects • Costs ? – Choice of alternatives – Weighing of benefits?

Co-existence: reasons and measures • Cross-pollination may affect neighbours´ crop • Economic loss due to consumer preference in non-GM products (even in case of no adverse effect on health and environment) • 2 measures ensuring co-existence – Commission Recommendation of July 2003 on MS measures ensuring co-existence of GM-farming together with conventional and organic farming – Regulation 1830/2003 on traceability and labelling

Co-existence: cooperation of farmers Duties of GM-farmer: • to inform a register on where he uses GM seeds • to inform neighbouring conventional and organic farmers • To keep safety distance between fields • (according to some MS laws: To compensate economic loss of neighbouring farmer in case of cross-pollination

Co-existence: labelling of products Duties of traders: • For products consisting of or containing GMOs – Labelling for end-consumers – written information including unique identifier for downstream-users (traceability) • De minimis threshold: 0, 9 % adventitious and technically unavoidable presence of GMOs in products

Export of GMOs • • Regulation 1946/2003, implementing Cartagena. Protocol on Biosafety to CBD Applicable to export of GMOs by EU to third states GMOs for deliberate release – information of import state prior to export – Consent of import state GMOs for food and feed use – If authorised in EU and authorisation notified to Biosafety Clearing House: free export

"Cap and Trade" and Other Means of Ensuring Societal Resilience in Times of Resource Scarcity

Cap & trade and resilience • Caution concerning transfer of nature system concepts to society and law – e. g. survival of fittest => social Darwinism – e. g. autopoiesis => deregulation => financial crisis Nature and society interact but are different (reflexivity) • Risk of becoming shortlived catchword which is „defined“ rather than induced from reality; mere new label for ongoing research • What is the core - not already contained in notions of integration, cycles, ecosystem, sustainability? seriousness of danger and human causation; need to consider more radical alternatives

Cap & trade and resilience • Cap and trade radical new idea • What is it and how does it perform? • Two options for criticism – Bottom up complex self-regulation – Strengthening command control elements

Elements of Cap (Allocate) and Trade • • Scarce resource (or resource service) due to overuse Determination of use rights (credits, allowances) Allocation of use rights (assigned amounts) Tradeability of use rights („cap and trade“) or nontradeability („cap and use“) • Holders of rights can be states and individuals

Examples: fisheries • International – weak instruments for quota setting: Fisheries Commissions for high sea regions; coastal states • EU – Overall quotas for fisheries („TACs“) by Council – Allocation to MS (grandfathering); tradeable – Individual quota of fishers; not tradeable except in NL • Experience – failure • TACs too high; politics > science (ICES) • Quota in general exploited; some unused quota expire

Example ozone layer • International – Vienna Convention of 1985, Montreal Protocol of 1987, as amended: Overall quota for production and use of ozone depleting substances; tradeable among states – 1987: 50% in 12 years; 1990: 85 % in 13 years; 1992: 100 % in 9 years (i. e. by 1996) • EU – overall quota for actors; tradeable • Experience – successful phasing out of emissions; hardly any trading

Production of ozone depleting substances in EEA member countries, 1986 -2007 UNEP 2009

Example acid rain (sulfur dioxide – SO 2) • International level – Basis UNECE Convention on Long Range Transboundary Air Pollution (LRTAP) plus subsequent Protocols – Caps: 1985: 30 % in 8 years; 1994: 62 % in 25 years: 1997: 75 % in 15 years (i. e. by 2010) – No trading • EU – National emission ceilings (NEC) – Implementation by command control (stick & carrot) • sector specific BAT for processes and products • EQOs • subsidies • Experience – Successful phasing out of emissions

EEA 2010, p. 10

Example Climate Protection • International – Kyoto-Protocol 1997: 5 % in 15 years (i. e. by 2012); different commitments of states (assigned amount units, AAU) • EU – 8 % bubble broken down among MS – MS AAUs tradeable • Member States – quota allocated to individual actors; tradeable – acquisition of additional quota through • joint implementation (JI) with project in other Kyoto state => ERU (emission reduction units) • clean development mechanism (CDM) with project in non-Kyoto state => CER (certified emission reduction unit) • Experience – Target unambitious; not even reached

Current progress towards EU‑ 15 Kyoto target - 20 % - 30 % EEA 2009, p. 75

Understanding cap and trade • Two questions – how to determine caps – whether to make allowances tradeable • Distinguishing 2 levels – states – individuals

How to determine quota: level of states • De ratione – Overall quota to be set acccording to ecological necessity – Distribution according to state of national economies; pioneering can stimulate innovation • De facto: – Ecological necessity: ozone and acid rain regimes – Feasibility for national economies; sometimes windfall profits: TAC, climate – EU slightly pioneering • De iure: – Duty of states to protect? => resource = common concern, common good? Int‘l customary law? – Allocation of shares => Equality? Of what? Citizens? Historical uses with joint but differentiated responsibility?

How to determine quota: level of individuals • De ratione – Options: benchmarking (BAT) or pricing (auctioning) • De facto – allocation for free (grandfathering with weak elements of benchmarking); in future auctioning • De iure – Basic rights of resource use => expropriation? Freedom of legislator to redefine property – Discretion of legislator to protect resource? • objective duty? public interest, trust • subjective right of third parties to demand protection; problem of deference of courts to administrative discretion – Allocation of shares => equality principle: different treatment permissible if based on sound reason (e. g. benchmarking)

Whether to make quota tradeable: level of states • De iure – Tradeability in fisheries, ozone and climate regimes, not in acid rain regime • De facto – Hardly practiced in fisheries and ozone due to extreme scarcity of resource – Widely practiced in climate regime, see eg Spain • De ratione – States are political entities, not traders on emission markets (example UK: no sales of surplus AAU planned) – Should be confined to a safety valve in cases of hardship – Otherwise cheating on climate abatement; mistrust

Planned purchase of AAU by Spain EEA 2009

Gap between average annual emissions in 2003– 2007 (light blue) (or 2004– 2008 (dark blue)) and initial assigned amounts in EU-15 EEA 2009, p. 74

Whether to make quota tradeable: level of individuals • De iure – Tradeability in climate and ozone regime, not in fisheries and acid rain regimes • De facto – Hardly practiced in ozone regime – Widely practiced in climate regime; even more so in post Kyoto round (50 % of reductions) • De ratione – Emission allowances exhaust assigned quota • difference with staying allowances or threshold values – Possibility of avoidance of duty to reduce emissions through • exploitation of cheaper abatement opportunities (trade, JI) • importation of quota into the system (CDM) • Distortions through speculation

Kyoto compliance equation Real emissions Allowable emissions 'initial assigned amount' + ‘net LULUCF removals' (RMU) 2008– 2012 total GHG emissions ≤ + ‘acquisition of CER by individuals' + ‘purchase by governments of AAU '

Kyoto compliance equation • Activities on what side of equation does correspond to principle of joint but differentiated responsibility? – Real reduction of emissions – Inflation of allowable quota • Initial emission quota too high • Acquisition of quota through CDM • Government purchase of AAUs

Summary • Quota setting needed in times of scarce resources • Realistic perception of international quotas: negotiated, not science based • Trade in state quota should be excluded except in situations of hardship • CDM should be seriously capped in order to trigger innovation within EU, or imported CERs should be deducted from state quota • Tools must be designed to trigger additional reductions: exclusion or confinement of tradeability (benchmarking) • Theoretical frame: cap necessary, but trade tending to commodify climate rather than protecting it

• Further reading: G. Winter, Rationing the Use of Common Resources: Problems of Design and Constitutionality, in: T. Prosser, D. Oliver (eds. ) In the Regulatory Laboratory, OUP forthcoming G. Winter, The Climate is no Commodity: Taking Stock of the Emissions Trading System, in: Journal of Environmental Law 2010, pp. 1 – 25.

Climate protection (exemplary for capping and trading emission rights)