Many years in the work, agreement has been reached on the new Industrial Emissions Directive, replacing seven existing directives and tightening standards – but not by enough.
The EU Parliament and Council reached a compromise agreement on the new Industrial Emissions Directive on 18 June, bringing more than two years of negotiations to a close. The Directive was subsequently approved by the Parliament on 7 July and now awaits the Council's rubber stamp. Whilst potentially representing a substantial improvement on existing directives, the compromise Directive represents a substantial weakening by certain EU member states acting through the Council compared to that proposed by the Parliament.
The new Directive incorporates into a single legal text the older Integrated Pollution Prevention and Control (IPPC) Directive and six sector directives –the Large Combustion Plants (LCP) Directive, the Waste Incineration Directive, the Solvent Emissions Directive and three titanium dioxide directives. The new standards to apply to LCPs were particularly controversial in the negotiations. Countries still reliant on old coal power stations, such as the UK and Poland, have successfully watered down the legislation by introducing a range of exceptions for LCPs.
Under the Directive, new plants will have to comply with binding emission limit values (ELVs) from 2012 for NOx, SO2, dust, and in the case of gas turbines, carbon monoxide emissions. While binding limits are also to apply to some existing plants from 2016, a significant opt-out has been created that allows countries to implement a "Transitional National Plan". Until June 2020, this allows for compliance across the whole of or part of the sector within the country and delays the application of ELVs for those existing plants taking this option. The date represents a compromise between the Parliament, whose Environment Committee had sought a deadline of June 2019, and the Council's proposed date of December 2021.
The Council had originally sought a much longer derogation, but this was opposed by the Parliament. "Allowing Transitional National Plans for a whole decade are nothing else than legalising air pollution from ancient coal-fired power plants," said German MEP Holger Krahmer, who was responsible for coordination the legislation in the Parliament.
Agreement was also reached on a "limited lifetime derogation", which exempts from compliance with ELVs plants with less than 17,500 hours of remaining operational life, to be used between 2016 and the end of 2023. While the UK and others have argued such an arrangement will allow them to transition directly from coal to renewables without the need to employ gas to meet any temporary energy shortfall, environmentalists have universally condemned the exception as allowing the oldest and dirtiest coal plants to continue to profit from pollution for an additional eight years.
In addition, plants that burn indigenous solid fuels such as lignite will be exempt from ELVs for SO2 provided that they meet mandated desulphurisation rates over that period. This will run until 2019, when it will be reviewed.
The agreed Directive also strengthens the role of the Best Available Techniques Reference Documents (BREFs). These are large technical documents setting out the EU benchmark BAT standards for each industrial sector or cross-sectoral issue. BAT (Best Available Techniques) are those techniques that best protect the environment whilst remaining economically viable, and the benchmark BAT standards are defined through industry, government and NGO agreement. However, they have previously suffered from not being legally binding. The new directive now clearly states that the BREF standards shall be the reference for setting the site-specific BAT contained in the legally binding permits set for each plant.
However, a derogation facility means that the site-specific BAT assessments have significant scope to deviate from these benchmarks. In the past, BAT has been interpreted inconsistently and weakly across the Member States. In response, the Parliament had proposed to implement much stricter rules for when sites could deviate from BREFs, and to require a public justification when doing so.
The public justification requirement remains, but the compromise Directive permits derogations from BAT where costs would be disproportionate to environmental benefits, due to technical reasons or other local geographical or environmental circumstances. But it does require that there should not be any significant pollution caused and a high level of protection for the environment as a whole must be achieved.
However, the fear remains that such concessions will allow Member States to unilaterally weaken ambition and environmental protections. It is therefore thought that a provision for the Commission to set guidance criteria on what constitutes a proper use of derogations could be critical in ensuring improved environmental standards.
"Not providing for clear criteria [for derogations from BAT] in the legal text could lead to 'business as usual' ... [creating] an uneven level of environmental protection for EU citizens, who ultimately pay the price," said Christian Schaible from the European Environment Bureau.