Tidal energy Texel, Wadden sea, the Netherlands (Nemo Kennislink)
s.r.w.vanhees@uu.nl & h.vanrijswick@uu.nl
Limits and opportunities for an
adaptive management approach to marine renewable energy developments in EU waters
Sander van Hees en Marleen van Rijswick
Reconciling the Rule of Law with Adaptive Governance of Marine Ecosystems Oslo, 15th June 2018, University of Oslo, Gothenburg and Eastern Finland
Setting the scene: challenges
Challenges when combining protection of marine ecosystems and renewable energy supply:
Realising sustainability (sustainable use of marine
ecosystems) as an overarching aim of EU policies by way of adaptive management approaches
– Innovation and dealing with uncertainties – Combining legal certainty and flexibility – Better alignment of different policy fields
– Dealing with governments, business, NGO's and citizens
Misunderstandings (discussion afterwards)
• Rule of Law vs ‘Rechtstaat’
(broader concept than legality, checks and balances, also respecting human rights, taking care of minorities, accountability)
• Common law vs civil law
• Typical characteristics of EU law
• Adaptive governance, adaptive management and all related theoretical concepts
– a wealth of theoretical literature from different disciplines, mainly from the US
– Often combined with resilience
– We take a practical approach, illustrated by a case study
Different aims, different legal regimes
for Adaptive Governance, Management and Licensing in Marine Ecosystems
• Social, environmental/ecological and economical aims
• Conflicting legal regimes
– Economic regulations: open market, no state aid – Environmental regulations:
protection and improvement of nature areas and species and fresh waters (WFD, BHD),
sustainable use and protection of marine waters (MSFD) – Energy regulations: economic and environmental aims:
towards more renewable energy
Adaptive management approach as a solution?
Wadden sea, Texel: a look in the future?
Innovation and dealing with uncertainties
Adaptive approaches as a solution for what?
And what aims benefit from adaptive approaches?
• The need for flexibility is often abused for not meeting strict protection requirements and letting economic interests prevail
– This influenced the strict approach of for example the nature protection regime by the courts
– It may harm the position of NGOs protecting the marine environment and citizens
• Possible legitimate reasons for flexibility and an adaptive approach:
– Innovations to meet sustainability aims
– Dealing with uncertainties (effects of climate change, effectiveness of certain measures)
– Safeguards are necessary for environmental and rule of law reasons
Combining legal certainty and flexibility
• How to insert adaptive approaches in the legal system?
• Innovation and uncertainties ask for flexibility
• Law provides:
– (limits to) powers for the authorities, – policy instruments,
– participation procedures and access to justice – legal certainty for investors and
– legal certainty and clarity about the protection level
(for citizens and NGO's)
Adaptive approaches at several levels
By the legislator:
• open norms or norms that allow a balancing of interests (Marine Strategy Framework Directive: sustainable use instead of protection)
• setting goals, no means (20 % renewables, a good status of fresh waters)
• including explicit possibilities for experimentation
• cyclic planning procedures combined with monitoring obligations (WFD, MSFD)
• exemptions that allow for experiments, a balancing of
interests and taking into account innovations and changing circumstances
• By explicitly referring to the balancing and aligning of different legal regimes (MSFD)
Adaptive approaches at several levels
By the administration during the decision making for specific projects
• Adaptive licensing to overcome strict nature protection regime and the precautionary principle (Wadden sea case ECJ)
• By using derogations and exemptions
• By integrating planning and policy instruments from different policy fields
• By explicitly motivating their balancing of interests in specific decision making (Schwarze Sulm case ECJ)
By the (administrative) courts
• Giving ample room for policy discretion/margins of appreciation
• Allowing experiments (adaptive licensing perhaps not in accordance with legal requirements)
Possible issues concerning the rule of law and adaptive approaches at the several levels
By the legislator Possible pitfalls
open norms difficult to enforce, unclear protection level
setting goals, no means provides flexibility, difficult to enforce when offering flexibility in meeting the goals
including possibilities for experimentation provides flexibility, clarity for third parties?
exemptions that allow for experiments, a balancing of interests and taking into account innovations and changing circumstances
needs safeguards to guarantee protection level
cyclic planning requirements combined with monitoring obligations
Monitoring results should be taken into account in the next planning cycle
By explicitly referring to the balancing of
interests and aligning of different legal regimes
Ensure clarity on the weight of the diverse interests
Pitfalls of the adaptive approaches at the several levels
By the administration during the decision making for specific projects
Adaptive licensing offers flexibility, includes safeguards, but:
perhaps when it’s too late and the damage is done
By using derogations and exemptions should be used restrictively, difficult to challenge by ngo’s and citizens
By motivating their balancing of interests in specific decision making
should be done in a way it can be challenged in court
By integrated planning and policy instruments from different policy fields
By the (administrative) courts
Giving ample room for policy discretion and margins of appreciation
difficult to enforce and to challenge by ngo’s and citizens
Allowing experiments offers flexibility, lack of legal certainty
Our case study:
Marine renewable energy developments
in EU waters
Innovative marine renewable energy:
what role can adaptive approaches play?
European Union Law
renewable energy projects
marine
Innovative marine renewable energy:
what role can adaptive approaches play?
Research question:
• what barriers are there
• within EU law
• to marine renewable energy projects
• when implemented on a large scale in the future
• and how can these be dealt with?
Birds and Habitats Directives Water Framework Directive State aid rules
solutions include (combinations of):
mitigation (but difficult) derogations
various types of adaptive management detailed renewable energy plans
Innovative marine renewable energy:
what role can adaptive approaches play?
Tidal energy
Wave energy
Salinity gradient energy
(blue energy)
Innovative marine renewable energy:
what role can adaptive approaches play?
Research question:
• what barriers are there
• within EU law
• to marine renewable energy projects
• when implemented on a large scale in the future
• and how can these be dealt with?
Birds and Habitats Directives Water Framework Directive State aid rules
solutions include (combinations of):
mitigation (but difficult) derogations
various types of adaptive management detailed renewable energy plans
Innovative marine renewable energy:
what role can adaptive approaches play?
Habitats Directive / ECJ:
Member States are only allowed to authorise new projects when:
They are certain that those projects will not have ‘lasting adverse effects on the integrity’ of the Natura 2000 sites in question,
and
‘where no reasonable scientific doubt remains as to the absence of such effects’.
Water Framework Directive / ECJ:
Member States are required to refuse
authorisation for an individual project where:
‘it may cause a deterioration of the status of a body of surface water’
or
‘where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status’
✔
✔
✔
✔
possible barriers
Innovative marine renewable energy:
what role can adaptive approaches play?
The European Commission’s approach:
Focus on adapting projects that are in operation in the case that negative environmental effect occur.
Elements:
A rigorous monitoring scheme and
A pre-defined validated package of appropriated corrective measures Example: SeaGen tidal energy project in the UK
The Scottish approach:
Focus on starting at a small scale with low environmental effects. The approval of subsequent phases is dependent on the monitoring results gathered.
Elements:
Intensive monitoring requirements and
Phased deployment
Example: Pentland Firth tidal energy project in Scotland
adaptive approaches
