The Recommendation from the EU Commission – to Just Make it Work!

The European Green Deal (EGD), published in 2019, provided a framework for ambitious targets regarding increased renewable energy share (RES). It recognised that, within the EU, decarbonisation targets and energy security targets can be simultaneously advanced via the development of an interconnected network of renewable energy infrastructure; the so-called ‘green transition’. The EGD aligned climate, energy and environment targets on this basis, but consideration was not given to the fact that, at project level, tensions arise between competing objectives of environmental conservation and climate mitigation that is achieved through development.

Since 2019, ambition levels for the deployment of renewable energy have increased significantly. ‘REPowerEU’, published in the wake of the 2022 Russian invasion of Ukraine, seeks to expedite delivery of the EGD targets. This determination is reflected in the terms of RED III enacted in November 2023, that set an ambitious mandatory goal of 42.5% RES by 2030, with an aim that Member States will in fact collectively reach 45%. It is also evident within the terms of the accelerated Permitting Regulations published in 2022 and extended in early 2024. Both the Regulations and RED III identify renewable energy infrastructure as being in the overriding public interest and therefore potentially capable of development notwithstanding their environmental impacts under the terms of multiple environmental protection Directives.

When these Regulations were issued in 2022, they were voted in favour of by all Member States with the exception of Hungary who chose to abstain. These Regulations designated renewable energy infrastructure as being in the overriding public interest and were a reaction to the renewed emphasis on energy security in the EU, connected with the REPowerEU May 2022 policy document.

Ireland was alone in issuing a ‘cautionary statement’ along with our vote which was attached to the Regulations but not answered. It read:

Ireland has concerns over the lack of clarity in the [sic] certain aspects of the text of the Proposal and how it interacts with other EU environmental Directives, in particular the Habitats Directive.
Ireland asks the European Commission [to] issue guidance as to how the Regulation interacts with the other EU environmental Directives, in particular the Habitats Directive, to avoid any legal issues arising in the implementation of the measures.
Ireland fully supports increasing the rollout of RE projects. However, Ireland is concerned that a lack of alignment with other EU environmental Directives could lead to legal challenge and uncertainty, which would have the undesired and contradictory effect of slowing down the delivery of essential renewable projects.”

Since then, RED III has come in to force and its initial transposition dates are looming. This law is even more far reaching in terms of the prioritisation it affords to the deployment of renewable energy infrastructure. It alters the manner in which environmental protection laws are to be applied and even introduces changes that change our understanding of the precautionary principle.

These changes are important if it is to be possible to develop a network of renewable energy infrastructure across Member States as is envisaged within the European Green Deal, RePowerEU, RED III, the October 2023 European Wind Power Action Plan and myriad other EU law and policy initiatives. Many of the changes implemented are based on the findings of the RES Simplify Study cited in the draft proposed RED III text published in 2022 which found as follows:

‘The most common barriers related to the administrative process for renewable energy projects identified in the RES Simplify study are bureaucratic burden, non-transparent processes, a lack of legal coherence as well as an incomplete and vague framework and guidelines that lead to different interpretations of existing legislation by the competent authorities.’

And:

‘Conflicting public goods are the second main source of obstacles for the deployment of renewable installations. This is particularly the case for wind power, geothermal power and hydropower as well as solar photovoltaics. The most prominent among them concern environmental protection (biodiversity and protection of endangered species and protection of water bodies), other land uses and military/ air defence issues.’

Evidently, the interaction between the environmental Directives and the objective of deploying a renewable energy network is of fundamental complexity. This is consistently evident at project level. See recently the case of, Donegal Co Council v Planree Limited & Others, as one of many examples of this tension. Consider also the ongoing legal challenges to the earliest preliminary site investigation stages of Ireland’s proposed offshore wind projects.

Against this backdrop, on 14 May 2024, a Commission Recommendation issued ‘on speeding up permit-granting procedures for renewable energy and related infrastructure projects’. The recitals to the Guidance include the following:

(9) Most of the barriers related to permit-granting for renewable energy projects and the related infrastructure, as well as good practices to overcome them, have been identified at Member State level.

(10) This Recommendation addresses those concerns, calling for solutions to be found within the existing legal framework. It is without prejudice to Union law, in particular in the area of energy and environment, and in the area of access to information, public participation in decision-making and access to justice in environmental matters, for which the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Aarhus Convention’) applies.

The message is clear. Member States must find solutions within the existing legal framework. The balance of the Recommendation, as well as the associated Staff Working Documents (SWDs), places the onus squarely upon Member States to deliver a plan led system that provides for the rapid deployment of large quantities of renewable energy infrastructure in accordance with the existing laws. Increased staffing, training, efficiency and technologies are all referenced. Streamlining of required environmental assessments and an emphasis on strategic planning including effective use of the SEA (strategic environmental assessment) process is urged. The clear message is to do whatever it takes to deliver the 2030 climate energy targets – within the existing legal framework.

Given the tensions that arise between the environmental laws and the climate energy laws, this ask of Member States is onerous and complex. The appropriate interpretation of environmental Directives as amended by RED III and the accelerated permitting Regulations requires judgment calls based on difficult, strategic, expert analysis. The management of the existing process by prospective developers of renewable energy infrastructure requires careful guidance from the earliest project stages.

It is how we manage this project authorisation component of the deployment process that will determine what projects are ultimately built and whether the EU’s urgently sought green transition is achieved. There is much to do!

Please get in touch with any member of our expert team for further information.

Alice Whittaker, Alison Hardiman, Rachel Minch, Leonora Mullet, Maeve Delargy, Niall Donnelly.