Public Participation in Biofuels Voluntary Certification Schemes Decision-Making Sandra Nóbrega Annual EELF Conference Wrocław, 14 September 2016

Introduction

The Aarhus Convention and Climate Change The Aarhus Convention (AC): rights to information, participation and justice Article 2(3) of the Aarhus Convention: definition very broad and not exhaustive The state of elements of the environment: e.g. air and atmosphere, water, soil …; Factors: e.g. substance, energy, noise and radiation …; The state of human health and safety, conditions of human life, cultural sites and built structures …; No mention of the terms ‘climate’ or ‘climate change’ in the Aarhus Convention

3. The AC and the European Union (EU) The EU (Decision 2005/370/EC) and all its Member States are a party to the AC All EU institutions have to comply with the AC Rules directed to EU institutions: - Regulation 1367/2006 on the application of the provisions of the Aarhus Convention to EU institutions and bodies

4. The Renewable Energy Directive (RED) The RED incentives the use of biofuels and bioliquids by Member States in order to achieve this 10% renewables target in transport Only the biofuels that have fulfilled the sustainability criteria can be used to achieve the 10%: Art. 17 RED One of the options of proof of compliance with these criteria is the voluntary schemes recognised by the European Commission: EU wide applicable I do not know what RED it?!?! Really!

5. Recognition of biofuels voluntary schemes Request for recognition Asseesment of the scheme The scheme meets the sustainability criterea Decision is published The scheme doesn’t meet the sustainability criterea The Commission will inform the applicant. Assessment outsourced to private parties. The evaluator gives the opportunity to the applicant to find solutions.

5. Recognition of biofuels voluntary schemes RED there is no specific provision on public participation Article 18(6) RED: decisions must be adopted in accordance with the Comitology Regulation Comitology procedures: 2002 Commission Communication: not applicable 2015 “Better regulation”: apply but with several exemptions Now stakeholders may have the opportunity to comment on the draft text of implementing acts before the vote in the Comitology Committee. Among the exceptions to public consultation on implementing acts is the “individual authorization decisions/ acts / decisions based on the assessment of compliance with legal Requirements.”

Public Participation in biofuels voluntary schemes decision-making Regulation 1367/2006: public participation only concerning plans and programmes relating to the environment. Can the recognition of voluntary schemes be considered a plan or programme? Article 2(1)(e)(ii): which are required under legislative regulatory or administrative provisions. Recognition of voluntary schemes: Arts 6, 7 or 8 AC?

6.1. Article 6: Specific activities Article 6 (1)(a) AC: activities listed in annex I Article 6(1)(b) AC: in addition to public participation in decisions on the activities listed in the Annex of the Convention, each party: Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; Is there a minimum obligation to the Parties to consider the issue in accordance to some established criteria?

6.2. Article 7: plans, programmes and policies Plan, programmes and policies: no definition in the AC Plan: ‘sets out how it is proposed to carry out or implement a scheme or a policy.’ Programmes: ‘the plan covering a set of projects in a given area’ (detailed and concrete) Policies: less concrete + legalities and political context

6.3 Article 8: executive regulations and other generally applicable legally binding rules The decisions on the recognition of voluntary schemes may be interpreted as an executive regulation for the purposes of Article 8. Obligation of effort: 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.

6.3 Article 8 (continued) Is the EU striving to promote public participation? Article 8 Requirements: establish time frames for effective participation; make publicly available the draft rules; give the public the opportunity to comment, directly or through representative consultative bodies; and take into account as far as possible the result of the public participation. No consideration of the Aarhus Convention Compliance Committee on lack of public participation in the recognition of biofuels voluntary certification schemes. Anything to highlight here as keywords?

8. Closing remarks No clear framework for public participation in the recognition of biofuels voluntary schemes Possible public participation in biofuels voluntary schemes decision-making under Article 8 AC There is no evidence that the EU is striving to promote public participation in this process

Thank you! Sandra Nóbrega PhD Candidate sandra.nobrega@maastrichtuniversity.nl