EU Environmental & Climate Change Policy

What is the legal nature and primary purpose of the Environmental Impact Assessment (EIA) Directive?

• procedural instrument

• mandates that projects likely to have a significant environmental impact due to their nature, size, or location must undergo an assessment prior to receiving development consent

Under the EIA Directive, what is the difference between Annex I and Annex II projects?

• Annex 1 projects: high-impact works (eg power stations, nuclear sites, motorways) must always undergo an EIA

• Annex 2 projects: (eg urban development, tourism) Member States have the discretion to determine via case-by-case review or set thresholds whether an EIA is required

What did the cases Wells and Bund Naturschutz (Trianel) establish regarding the EIA Directive?

• Wells: the EIA Directive has a direct effect → individuals can rely on it in court to halt or revoke development consent granted without an assessment

• Bund Naturschutz: environmental NGOs must be granted legal standing to challenge permits & can rely on any provision of EU environmental law, even those protecting the environment as a whole rather than specific individual rights

Under the Habitats Directive, what is the legal test for granting development consent near a Special Area of Conservation (SAC)?

• Article 6(3) Waddenzee: an assessment is required if a plan/project is likely to have a significant impact

• development consent can only be granted if the competent authority finds with absolute certainty that no negative effects will occur

What are the strict criteria required for a Article 6(4) derogation under the Habitats Directive?

• if a project will adversely affect a SAC, it can only proceed if

  • a full article 6(3) assessment was completed first

  • there are no feasible alternative solutions

  • there are imperative reasons of overriding public interest (IROPI)

  • all necessary compensatory measures are taken to protect the coherence of Natura 2000

What did Janecek and ClientEarth establish regarding Air Quality Directive 2008/50?

• Janecek: affected individuals have direct effect to compel national authorities to draw up an air quality plan when emission limit values are breached

• Client Earth: the directive imposes an obligation of result → drafting a plan isn’t enough if it fails to ensure that the period of exceedence is kept as short as possible

What intermediate target reductions are set out in Regulation 2021/1119 (European Climate Law)?

• it binds the EU to complete climate neutrality by 2050, with intermediate net GHG emission reduction targets of

  • At least 55% by 2030 (compared to 1990 levels)

  • At least 90% by 2040 (compared to 1990 levels)

How does the EU Emissions Trading System (ETS) use a market-based approach, and what is "ETS 2"?

• sets a strict political cap on total emissions, creating scarcity

• operators buy/sell allowances based on their actual emissions, using a price signal as a financial incentive to cut emissions

• ETS 2: expands this carbon pricing mechanism to cover road transport & building heating fuels

Why does the text suggest that the EU's internal market necessitates positive integration in environmental policy?

• Without positive EU environmental standards, negative integration would systematically dismantle national environmental rules on products under the guise of removing trade barriers

• Explicit EU lawmaking powers (Art. 191/192 TFEU) are needed to establish baseline ecological standards and prevent an industrial race to the bottom

What are the two primary TFEU articles giving the EU its environmental lawmaking powers, and what are the specific objectives listed?

• Article 192(1) TFEU: framework power enabling the EU to adopt legislation to achieve environmental goals.

• Article 191(1) TFEU: Outlines the 4 objectives

  • Preserving, protecting, and improving environmental quality

  • Protecting human health

  • Prudent and rational utilization of natural resources

  • Promoting international measures to combat climate change

Why are EU-wide environmental lawmaking powers mathematically and economically necessary in an Internal Market?

• Without positive integration (EU-wide environmental legislation), the Internal Market operates strictly on negative integration (the Court striking down trade barriers)

• Because environmental compliance raises industry costs, an internal market without harmonized laws creates intense pressure for an environmental "race to the bottom" as states compete for a "level playing field"

• Positive integration by the Commission, Council, and EP halts this deregulatory pressure.

Which two CJEU cases mandate that Member States ensure all projects likely to have a significant impact are caught under the EIA, preventing loopholes?

• Kraaijeveld (C-72/95) and Commission v. Ireland (C-392/96).

What are the core procedural steps required during an EIA process?

• Developer submission: Site details, design, size, remedial/avoidance measures, an outline of main alternatives studied with environmental justifications, and a non-technical summary

• Consultation: Mandatory consultation of both the public and authorities with environmental responsibilities

• Substantive Duty: The environmental information gathered must be taken into account when deciding whether to grant development consent. (Note: The directive itself does not provide the criteria for the assessment)

What is the purpose of the Habitats Directive, and how is the "Natura 2000" network established?

• Purpose: Protection of conservation areas and species

• Special Areas of Conservation (SACs) are added to a determinative list established by Commission Decisions (most recently Decision 2026/401) based on proposal lists submitted by Member States

What must a Member State do once a site is merely proposed as an SAC, according to Draggagi (C-117/03) and Bund Naturschutz (A94 motorway) (C-244/05)?

• They have an immediate legal duty to protect the ecological interest

• They must not authorize interventions which seriously compromise the unique characteristics of the site, and must take all necessary steps to avoid such intervention

How does Directive 2023/2413 change the application of Habitats assessments for green energy?

• To accelerate the expansion of renewable energy, this directive explicitly exempts many renewable energy projects from undergoing the traditional Habitats assessment

What are the legal obligations regarding pollutant limit values and deadlines under Articles 13 and 22 of the Air Quality Directive?

• Member States are legally prohibited from exceeding pollutant limit values after the specified attainment deadlines (which was Jan 1, 2010, for almost all values).

• Any extension request requires formal approval from the European Commission.

What is the duty under Article 23 of the Air Quality Directive, and who can enforce it via Janecek (C-237/07)?

• If limit values are breached after the deadline, Member States have a strict duty to prepare an Air Quality Plan containing appropriate measures to ensure the attainment period is as short as possible.

• Under Janecek, affected individuals have direct effect to enforce the duty to create this plan

What are the temperature targets and mechanisms set by the Paris Agreement (Article 2 & Article 6)?

• Article 2 Targets: Hold average global temperature increases to well below 2ºC compared to 1850 levels, and actively pursue efforts to limit it to 1.5ºC

• Net-Zero Approach: Relies heavily on offsetting (e.g., carbon credits from plantation forests, Carbon Capture (CCS/BECCS), or geo-engineering) rather than outright banning non-essential emissions.

• Article 6 Market-Based Mechanism: Allows voluntary inter-state transfer of "Internationally Transferred Mitigation Outcomes" (ITMOs) to count toward a country's Nationally Determined Contribution (NDC).