Climate and environmental goals, while intrinsically linked, are sometimes at odds. Today, efforts to reduce greenhouse gas emissions (GHG) are insufficient, worse they are failing as GHG emissions continue to increase and set a new record of 57.1 GtCO2e in 2023. Bridging the gap between current global emissions and climate ambitions requires an urgent acceleration of the energy transition from fossil fuel to renewable energy. However, such acceleration will require increased mining for critical raw materials which are essential for renewable technologies and large-scale infrastructure developments that will put local ecosystems and biodiversity at risk.
In this alarming context, the EU legislator has recently elevated the energy transition to the status of a presumed “overriding public interest” in its revised Renewable Energy Directive (RED III, Art. 16(f)). This presumption is not without consequences for protecting local ecosystems and biodiversity. It departs from the strong environmental policy of the EU and allows Member States to derogate from their obligations to prevent environmental deterioration in the context of energy transition (see e.g.: Habitats Directive 92/43/EEC, Art. 6(4) and 16(1); Birds Directive 2009/147/EC, Art. 9(1) or Water Framework Directive 2000/60/EC, Art. 4(7)). Previously, the competent authority in principle had to refuse a plan or project if they could not completely exclude the risk of adverse effects on a protected site (Case 127/02 Waddenzee, para. 57). As an exemption, such a plan or project could still be authorised despite adverse effects, given the following conditions: the absence of alternative solutions (1), the adoption of compensatory measures (2), and imperative reasons of overriding public interest (3)[i]. With the final condition now presumed to be met regarding energy transition cases, this exception might become the norm.
Of course, it is still too early to assess the concrete impact of this new overriding public interest presumption on the protection of the environment in the EU. However, I argue that this presumption already indicates a shift in the prioritisation of the objectives in EU environmental law: from biodiversity conservation towards climate change mitigation. Indeed, renewable energy projects have until now been subject to a strict level of environmental scrutiny. However, by introducing this presumption, the EU legislator seems to elevate climate interests above more traditionally “environmental” ones. In my view, this shift is the result of a complex process made of four consecutive instruments or phases: the European Green Deal (the premise); the emergency Regulations adopted in response to the energy crisis (the catalyser); the latest Renewable Energy Directive (the crystallisation); and finally, the Nature Restoration law (the consolidation).
1. The Premise: The European Green Deal
In 2019, the European Commission presented an ambitious set of policy initiatives to transform the EU into a sustainable and climate-neutral economy by 2050: the European Green Deal. Among these policies, the Commission reaffirmed the strong environmental policy of the Union by adopting the EU Biodiversity Strategy for 2030. It also introduced ambitious climate policies by proposing to increase the EU’s renewable energy targets to 40% of the EU gross final energy consumption by 2030. As such the European Green Deal laid down the foundations, or premises, of EU action to tackle the drivers of climate change and biodiversity loss. The energy target was for instance accompanied by concrete measures such as mainstreaming renewable energy in buildings and the industrial sector. With Russia’s invasion of Ukraine in early 2022, however, the energy crisis rapidly escalated and called for renewed and more ambitious action from the EU.
2. The Catalyser: The 2022-2023 Energy Crisis
Russia invaded Ukraine on 24 February 2022, triggering an ongoing energy and economic crisis. Following the invasion, the European Commission communicated its REPowerEU Plan to reduce the EU’s dependence on Russian fossil fuels. The Plan focuses on three areas of action: energy savings, diversifying energy imports, and substituting fossil fuels by accelerating the clean energy transition. It was accompanied by additional measures such as an updated proposal for the Renewable Energy Directive with targeted amendments. Among these targeted amendments, the Commission introduced measures to simplify and accelerate permit-granting procedures in the sector of renewables (RED III, Arts. 15(b)-16(f)). It endeavoured to remove a key obstacle to the quick deployment of renewable energy: environmental assessments (identified as “bureaucratic burdens, non-transparent processes” and “the most common barriers faced by developers and investors relating to the administrative process for renewable energy projects”). The Commission did so by establishing derogation regimes under the form of “renewable go-to areas”, in which renewable energy plans and projects would be exempted from environmental assessment obligations. As mentioned above, however, competent authorities are in principle required to refuse the authorisation of plans and projects if they cannot completely exclude the risk of adverse effects on protected sites – a difficult, if not impossible, task without the appropriate prior assessment. To avoid a normative conflict with other environmental legislation, the Commission came up with a legal solution: the presumption of an overriding public interest. This solution was therefore introduced to respond to synergetic geopolitical and climate objectives. Climate considerations have long driven renewable energy goals and measures, but the uncertain geopolitical context acted as a crucial catalyser for this changing prioritisation.
At the end of September 2022, however, the geopolitical crisis escalated in Europe with the sabotage of the Nord Stream pipelines. This attack threw the EU in a general context of energy insecurity. In response, the European Council adopted conclusions calling for rapid and directly applicable measures to simplify permitting procedures to accelerate the rollout of renewables and grids. In November 2022, the Commission submitted a proposal for a Council Regulation containing various emergency measures mirroring its ongoing proposed amendments to the Renewable Energy Directive. These emergency measures also included the presumption of overriding public interest, as well as an environmental assessment derogation regime for renewable energy projects. One month later, the Council adopted the proposed Emergency Regulation for a temporary basis of 18 months.
3. The Crystallisation: The Renewable Energy Directive
The Emergency Council Regulation provided the perfect opportunity for the Commission to test the amendment it had proposed for the Renewable Energy Directive for a limited amount of time. In November 2023, following Article 9 of the Emergency Regulation, the Commission reviewed the temporary regime and assessed whether its validity should be prolonged to “further accelerate the deployment of renewable energy”. While the short period of application of the Regulation prevented the Commission from precisely quantifying its effects, the Commission still reported an important acceleration in the permitting process including “double-digit increases in the volume of permits issued for onshore wind [in several Member States] since the entry into force of the Regulation”. It noted, however, that this acceleration was still constrained by the application of another condition for derogating from obligations to prevent environmental deterioration mentioned above: the absence of other alternative solutions. Based on the Commission’s report, the Council decided to prolong the temporary Regulation until June 2023 and remove this constraint. Under the revised Regulation, the condition is considered to be fulfilled if no alternative exists for producing “the same renewable energy capacity through the same energy technology within the same or similar timeframe and without resulting in significantly higher costs” (Art. 1(3)).
In October 2023, the targeted amendments to the Renewable Energy Directive were finally adopted under Directive (EU) 2023/2413, also known as RED III. The new Directive is much more extensive than its predecessor and broadens the measures introduced under the Emergency Regulation. In the final version of the Directive, the concept of “renewable go-to areas” is replaced by a similar, but more complex, administrative system of areas, including not only “renewables acceleration areas” but also specific areas for grid and storage infrastructure. Within this system, renewable energy plants and related grid and storage projects are exempted from environmental impact assessments, provided that they implement effective mitigation measures. Additionally, the presumption of an overriding public interest is crystallised under Article 16(f) of the Directive. Although the Directive does not have a temporary nature like the Emergency Regulation, it somehow retains the temporary character of that specific provision through the wording: “until [EU] climate neutrality is achieved” (of course, it remains to be seen whether such a goal is ever to be achieved).
Whereas the Emergency Regulation and the Directive rely on very different motives – geopolitical and environmental – the legislative logic remains the same: (far-reaching) temporary rules to address urgent and uncertain crises. This “temporary” logic seems to be used to legitimise the reduced level of environmental scrutiny to which renewable energy developments are now subject. However, one would legitimately wonder whether regulations addressing the climate crisis should adopt the same logic and measures as those adopted to address a geopolitical crisis. Is the climate crisis not used to perpetuate what should have been emergency and temporary measures? There is indeed a clear continuation between the two instruments. RED III shall be fully implemented by May 2025 when the emergency Regulation will stop applying (Art. 5(1) RED III and Art. 10 Consolidated Council Regulation 2022/2577/EU). Between July 2024 and June 2025, a series of measures, such as the presumption of overriding public interest, will even coexist and overlap under both regimes. Whereas one hopes that the geopolitical crisis can be addressed and ended within a limited period, the inertia of climate change makes its crisis irreversible. This raises the question of how long these “temporary” measures will last – if they ever can be ended. As such, the Renewable Energy Directive does more than incorporate a temporary status of overriding public interest, it crystallises it for good.
4. The Consolidation: The Nature Restoration Law
Should we be talking about a paradigm shift in environmental EU law? After all, under the Renewable Energy Directive, the presumption of an overriding public interest remains limited in time and scope. Its main function is to resolve a normative conflict between “time-bound” climate measures and specific nature conservation obligations. The crystallisation of the presumption in RED III alone would probably not be enough to answer that question affirmatively. However, this presumption was further consolidated into arguably the most important environmental instrument that was adopted since the introduction of the Green Deal: the Nature Restoration Law 2024/1991/EU.
The Nature Restoration Law was adopted on 24 June 2024. The Regulation is the legal consecration of the Biodiversity Strategy for 2030. It establishes the regulatory framework for the long-term and sustained restoration of degraded ecosystems across the Member States’ land and sea areas. Although this framework primarily addresses biodiversity problems, climate change objectives arguably remain at the heart of the Regulation. Indeed, the Nature Restoration Law explicitly recalls the ‘overarching’ character of climate change mitigation and adaptation as one of its objectives.
The Nature Restoration Law requires Member States to coordinate the development of national restoration plans with the planning of renewable energy developments and to ensure synergies between them (Art. 14(13)). Most importantly, it consolidates the presumption that the planning, construction, and operation of renewable energy infrastructures must be carried out for reasons of overriding public interest, without mentioning any temporal limit (Art. 6(1)). However, the Nature Restoration Law does not only reproduce this presumption, it also extends its legal consequences by allowing Member States to completely exempt renewable energy projects from the requirement that no less damaging alternative solutions are available for the purpose of derogating from restoration obligations – going even further than the Emergency Regulation (Art. 6(1)). Therefore, the EU legislator has consolidated the overriding status of climate change over biodiversity protection by broadening its scope and reinforcing its implementation in various legal frameworks.
Of course, the Nature Restoration Law – and environmental EU law more generally – recognises and promotes the synergetic character of climate change mitigation and nature protection (Recitals 11 and 68, Art 14(9) and (13) of Nature Restoration Law 2024/1991/EU). However, one should note that the presumption was specifically adopted for the purpose of balancing legal interests. It was therefore meant to establish a hierarchy between interests which can simply not always align. In such cases, it would be fair to assume that climate interests override “environmental” ones. This prompts a series of final questions. Will other climate measures, such as carbon capture and geoengineering technologies, also benefit from such environmental derogations in the future? Does it not create a dangerous legislative precedent which could be applied to other sectors or environmental obligations? Finally, can synergies between climate change action and biodiversity preservation be guaranteed when the former is, by default, presumed of a higher status than the latter?
[i] Habitats Directive 92/43/EEC, Arts. 6(4) and 16(1); Birds Directive 2009/147/EC, Art. 9(1); Water Framework Directive 2000/60/EC, Art. 4(7).
Alessio Devis is a PhD researcher in the International and European Law Department at Utrecht University. His research focuses on the nexus between the development of renewable energy and environmental protection.