Regional Specificities and Exigencies:European Union Law and Policy

Offshore Renewable Energy

Ronán LongJean Monnet Chair EU Law National University of Ireland Galway

Energy from the Sea Workshop, NILOS, Utrecht

19-20 February 2014

Overview

1. EU Treaties

2. Policy

3. Status industry

4. Spatial management measures

5. Regional trendsPhoto source: EWEA

Treaty Functioning European Union

1. Shared Competence: Art 4

2. Energy: Title XXI - Art 194

3. Internal Market: Art 114

4. Environment: Art 192

5. Trans-European networks - energy infrastructures: Art 170

6. Council to enact measures in “a spirit of solidarity” if severe difficulties of supply arise, particularly within the energy sector. Art 120

Treaty Functioning European Union

• Union policy on energy shall aim…to:

a. ensure the functioning of the energy market;

b. ensure security of energy supply in the Union;*

c. promote energy efficiency and energy saving and the development of new and renewable forms of energy; and

d. promote the interconnection of energy networks.

Art 194 (1) TFEU & Declaration 35 IGC

EU Law-Making

• Energy objectives under Art 194 (1):

– Ordinary Legislative Procedure (Qualified Majority Voting plus co-decision by Council + European Parliament)

• Such measures shall not affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the

general structure of its energy supply Art 194 (2), TFEU

EU Law-Making

• Special Legislative Procedure (Unanimous vote MS in Council +

consultation with European Parliament).

– Where measures are of a primarily fiscal nature

Art 194 (2), TFEU

7

Energy Policy

Security of Supply

Competitiveness

Sustainability

• European Coal and Steel Treaty 1952-2002• Euratom Treaty 1957

EU Policy Backdrop

• EU targets for 2020 :– 20% energy from renewable sources / 20%

energy efficiency / 20% reduction in greenhouse gas emissions (40%: 2030)

• European Energy Roadmap 2050– 80% reduction carbon emissions– 55% energy from renewable sources

• 30% of all wind energy turbines in Europe will be located offshore by 2020 – increasing to 60% by 2030

EU renewable energy = maritime industry

Factors shaping growth

I. Quality of the resource and maritime space

II. Price fossil fuels & demand for energy

III. Market and fiscal supports

IV. EU policies...climate change & energy security

V. EU law….Renewable Energy Directive, National Programmes, and Emissions Trading Scheme

VI. Social acceptability

Status of the industry in Europe

source: EWEA Rep 2013

169,500 jobs in offshore industry by 2020 300,000 jobs by 2030

Growth of the industry in Europe 1991-2013

source: EWEA Rep 2013

TrendsDeeper and Further

source: EWEA Rep 2013

Annual Investment

source: EWEA Rep 2013

Annual investments in offshore wind power areexpected to increase from €2.8 billion in 2011 to€10.4 billion in 2020.

Environmental Impacts

• OSPAR Commission QSR 2010 :

“knowledge of the wider effects of offshore wind farms on environmental quality is limited and mainly based on data from monitoring at specific sites, similar activities, government sponsored research and development, and predictions from environmental impact assessment”

• Positive impacts:– Reduce C02 emissions – Marine reserves

Ocean Energy

1. Waves

2. Tides

3. Marine currents

4. Salinity gradient and temperature gradient

Source: European Ocean Energy Association

Summary Proposed EU Measures Ocean Energy

Annex 1Brussels, 20.1.2014 COM(2014) 8 final

Regulatory Issues Ocean Energy

Impact AssessmentBrussels, 20.1.2014 COM(2014) 8 final

1. Case-by-case approach using laws that apply to petroleum, aquaculture or other offshore developments

2. Belgium, Germany and Sweden apply different consent processes in their territorial seas compared to EEZs

3. Red tape can amount to 14% project costs. Scotland and the Denmark have “one stop shop”.

4. MSP: Germany, Portugal, Sweden, the Netherlands and the UK. [In the process of developing: Ireland, Denmark and Italy].

Draft Directive MSP / ICMObjectives

a) securing the energy supply of the Union by promoting the development of marine energy sources, the development of new and renewable forms of energy, the interconnection of energy networks, and energy efficiency;

b) promoting the development of maritime transport…

c) ….development of fisheries and aquaculture ...

d) ensuring the preservation, protection and improvement of the environment as well as the prudent and rational use of natural resources, notably in order to achieve good environmental status, halt the loss of biodiversity and degradation of ecosystem services and reduce marine pollution risks;

e) ensuring climate resilient coastal and marine areas.

Art 5 Draft Directive

FeaturesDraft Directive MSP / ICM (1)

Impact AssessmentBrussels, 20.1.2014 COM(2014) 8 final

1. Member State must establish and implement spatial plan(s) & integrated coastal management strategy(ies), reviewable every 6 years. [Art 4]

2. Geographical Scope: applies to marine waters….. where a Member State has and /or exercises jurisdictional rights, in accordance with the LOS Convention. [Art 3]

FeaturesDraft Directive MSP / ICM (2)

Impact AssessmentBrussels, 20.1.2014 COM(2014) 8 final

3. Plans/ strategies must take into account [Arts 7 and 8]: a. installations for the extraction of energy and the production of renewable

energy; b. oil and gas extraction sites and infrastructures; c. maritime transport routes; d. submarine cable and pipeline routes; e. & f. fisheries and aquacultureg.  nature conservation sites.

4. Public participation / data collection and exchange of information [Art 10]

5. Member State must cooperate and coordinate on issues of a transnational nature (through…regional institutional structures). Plus every effort to cooperate with third countries [Art 13]

EU Specifics and Exigencies (1)

1. Responding to complexity– geographic, oceanographic, environmental,

technological, legal and institutional considerations.

2. Jurisdictional framework: LOS Convention

3. Predictive tools (procedural and supervisory): – Environmental impact assessment (strategic /

project)

4. Regionalisation, Iterative Process, Risk Assessment:– Marine Strategy Framework Directive…good

“environmental status” of all marine waters by 2020.

EU Specifics and Exigencies (2)

5. Science Driven – Monitoring programmes and data and information sharing– Not harmonised Part XII LOS Convention

6. Human Rights: participatory decision-making – EIA/SEA; offshore licensing; assessment under nature conservation

instruments

7. Resolving conflicts with other users– Navigation (IMO) & fishing (Advisory Bodies)– Protecting the human environment & emergency response (national

level)– “One stop shop” (licensing)

EU Specifics and Exigencies (3)

8. Spatial designations to protect biodiversity

9. Normative approach: Ecosystem-based management

10. EU law moving away from reactive approach towards integrated planning and management:

– Draft Directive maritime spatial planning / ICM

Publications• “Offshore wind energy and ecosystem-based

management: Are the EU regulatory answers really blowing in the wind?” in M. Nordquist et al., THE REGULATION OF CONTINENTAL SHELF DEVELOPMENT: RETHINKING INTERNATIONAL STANDARDS (Leiden/Boston, Nijhoff, 2013) pp.15-52.

• “Offshore wind energy development in Germany: Ac t o r s, legal instruments and decision-making procedures” in H. Koch, D. Konnig, in CLIMATE CHANGE AND ENVIRONEMTAL HAZARDS RELATED TO SHIPPING (Leiden/Boston, Martin Nijhoff, 2013), pp. 227- 240.

Thank You!

www.marinelaw.ie

“Blue Energy” Action plan to deliver ocean energy by 2020

• Advantages– Indigenous resource / energy security / blue economy / export

opportunities / balance other renewable energy sources / contribute decarbonisation goals / public acceptance

• Challenges– Technology costs / transmission grid infrastructure / consenting

procedures / maritime spatial plans / environmental impacts / grant and revenue support

Brussels, 20.1.2014 COM(2014) 8 final