Regional Specificities and Exigencies: European Union Law and Policy Offshore Renewable Energy

1. Regional Specificities and Exigencies:European Union Law and Policy Offshore Renewable Energy Ronán Long Jean Monnet Chair EU Law National University of Ireland Galway Energy from the Sea Workshop, NILOS, Utrecht 19-20 February 2014

2. EU Treaties Policy Status industry Spatial management measures Regional trends Overview Photo source: EWEA

3. Shared Competence: Art 4 Energy: Title XXI - Art 194 Internal Market: Art 114 Environment: Art 192 Trans-European networks - energy infrastructures: Art 170 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

4. Union policy on energy shall aim…to: ensure the functioning of the energy market; ensure security of energy supply in the Union;* promote energy efficiency and energy saving and the development of new and renewable forms of energy; and promote the interconnection of energy networks. Treaty Functioning European Union Art 194 (1) TFEU & Declaration 35 IGC

5. 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 EU Law-Making Art 194 (2), TFEU

6. Special Legislative Procedure (Unanimous vote MS in Council + consultation with European Parliament). Where measures are of a primarily fiscal nature EU Law-Making Art 194 (2), TFEU

7. Energy Policy Competitiveness Sustainability Security of Supply • European Coaland Steel Treaty 1952-2002 • Euratom Treaty 1957

8. 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

9. Quality of the resource and maritime space Price fossil fuels & demand for energy Market and fiscal supports EU policies...climate change & energy security EU law….Renewable Energy Directive, National Programmes, and Emissions Trading Scheme Social acceptability Factors shaping growth

10. Status of the industry in Europe 169,500 jobs in offshore industry by 2020 300,000 jobs by 2030 source: EWEA Rep 2013

11. Growth of the industry in Europe 1991-2013 source: EWEA Rep 2013

12. TrendsDeeper and Further • source: EWEA Rep 2013

13. Annual Investment Annual investments in offshore wind power are expected to increase from €2.8 billion in 2011 to €10.4 billion in 2020. source: EWEA Rep 2013

14. 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 Environmental Impacts

15. Waves Tides Marine currents Salinity gradient and temperature gradient Ocean Energy Source: European Ocean Energy Association

16. Summary Proposed EU Measures Ocean Energy Annex 1Brussels, 20.1.2014 COM(2014) 8 final

17. Regulatory Issues Ocean Energy Case-by-case approach using laws that apply to petroleum, aquaculture or other offshore developments Belgium, Germany and Sweden apply different consent processes in their territorial seas compared to EEZs Red tape can amount to 14% project costs. Scotland and the Denmark have “one stop shop”. MSP: Germany, Portugal, Sweden, the Netherlands and the UK. [In the process of developing: Ireland, Denmark and Italy]. Impact AssessmentBrussels, 20.1.2014 COM(2014) 8 final

18. Draft Directive MSP / ICMObjectives • 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; • promoting the development of maritime transport… • ….development of fisheries and aquaculture ... • 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

19. FeaturesDraft Directive MSP / ICM (1) Member State must establish and implement spatial plan(s) & integrated coastal management strategy(ies), reviewable every 6 years. [Art 4] Geographical Scope: applies to marine waters….. where a Member State has and /or exercises jurisdictional rights, in accordance with the LOS Convention. [Art 3] Impact AssessmentBrussels, 20.1.2014 COM(2014) 8 final

20. FeaturesDraft Directive MSP / ICM (2) • Plans/ strategies must take into account [Arts 7 and 8]: • installations for the extraction of energy and the production of renewable energy; • oil and gas extraction sites and infrastructures; • maritime transport routes; • submarine cable and pipeline routes; • & f. fisheries and aquaculture • g. 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] Impact AssessmentBrussels, 20.1.2014 COM(2014) 8 final

21. Responding to complexity geographic, oceanographic, environmental, technological, legal and institutional considerations. Jurisdictional framework: LOS Convention Predictive tools (procedural and supervisory): Environmental impact assessment (strategic / project) Regionalisation, Iterative Process, Risk Assessment: Marine Strategy Framework Directive…good “environmental status” of all marine waters by 2020. EU Specifics and Exigencies (1)

22. Science Driven Monitoring programmes and data and information sharing Not harmonised Part XII LOS Convention Human Rights: participatory decision-making EIA/SEA; offshore licensing; assessment under nature conservation instruments 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 (2)

23. Spatial designations to protect biodiversity Normative approach:Ecosystem-based management EU law moving away from reactive approach towards integrated planning and management: Draft Directive maritime spatial planning / ICM EU Specifics and Exigencies (3)

24. 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. Könnig, in CLIMATE CHANGE AND ENVIRONEMTAL HAZARDS RELATED TO SHIPPING(Leiden/Boston, Martin Nijhoff, 2013), pp. 227- 240.

25. Thank You! www.marinelaw.ie

26. “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