Turn 180

The Compliance Committee of the United Nations Economic Commission for Europe (UNECE), which enforces the Aarhus Convention to which the EU is a party, has issued draft findings and recommendations which criticize the European Commission for failing to abide by the terms of the Convention with regards to the determination of its renewable energy policy (1). Today the plaintiff, Mr. Pat Swords, a chemical engineer critical of the way the EU imposes its “half-baked policy” to Members States, communicated the Committee’s decision to the European Platform against Windfarms (EPAW). Draft recommendations are unlikely to be substantially modified when, after an ultimate input from the parties, they are converted into final ones.

The Compliance Committee found that the EU did not comply with the provisions of the Convention in connection with its programme “20% renewable energy by 2020”, and its implementation throughout the 27 Member States by National Renewable Energy Action Plans (NREAP). In particular, the Committee opines that the EU did not ensure that the public had been provided with the necessary information within a transparent and fair framework, allowing sufficient time for citizens to become informed and to participate effectively in the decision process.

Says Pat Swords: “this is an important decision, because the EU’s renewable energy programme as it currently stands is now proceeding without ‘proper authority’. The public’s right to be informed and to participate in its development and implementation has been by-passed. A process will now be started to ensure that the Committee’s recommendations are addressed; if ultimately they are not, then UNECE has the option of requiring the EU to withdraw from the UN Convention on Human and Environmental Rights.”

The Aarhus Convention requires that public participation occur when all options are still open, not when policies are already set in stone. Furthermore, the authorities have to ensure and document that in the resulting decision, due account is taken of the outcome of public participation. “In the EU,” remarks the engineer, “what we’ve had is a travesty of public participation in a policy having hugely negative impacts on the environment and the economy.”

Mark Duchamp, Executive Director of EPAW, points that Mr. Swords initiated his recourse one and a half years ago, as it was already obvious that the European Commission was imposing an enormously costly and ineffective policy to EU Members States without properly investigating the pros and cons. “It is high time that Brussels be held accountable for the hundreds of billions that have been squandered without a reality check on policy effectiveness” says Mark. “To spend so much money, a positive has to be proven. – It hasn’t.”

Duchamp, who also happens to be an environmentalist and is chairman of the non-conformist NGO  World Council for Nature, remarks that never has Europe’s environment been the object of so much destruction in so little time. “Even natural reserves, set up at great cost to the taxpayer, have been allowed to be invaded by industrial wind turbines,” he laments. “I presented objections to a number of eagle-killer wind projects, but the impression I get is that they were not even read. The Aarhus Convention is only being given lip service in Europe. The UNECE findings confirm this.”

Finally, there is another ‘twist to this tale’, says Pat Swords: “as the Convention is part of EU law, there is now a legal ruling that this law has not been complied with. There are long established legal procedures where if a Member State does not comply with EU law, the citizen can seek ‘damages made good’ (2). A can of worms has been opened,” warns Pat.

He continues: “Electricity costs are soaring to implement these dysfunctional policies, which have by-passed proper and legally-required technical, economic and environmental assessments. Not only is the landscape being scarred as thousands of wind farms are being installed, but people in the vicinity are suffering health impacts from low frequency noise, while birdlife and other wildlife is also adversely impacted. It is long overdue that a STOP was put to this type of illegal and dysfunctional policy development and project planning.”

Contacts:

Pat Swords, BE CEng FIChemE CEnv MIEMA

Chemical engineer

+353 1 443 4831 (Ireland)    Skype: pat_swords

pat.swords.chemeng@gmail.com

Mark Duchamp +34 693 643 736 (Spain)   Skype: mark.duchamp

Executive Director, EPAW

www.epaw.org

Chairman, World Council for Nature

www.wcfn.org

save.the.eagles@gmail.com

References:

(1) - Draft findings of 29 April 2012, communicated on May 4^th by the Compliance Committee of the United Nations Economic Commission for Europe (UNECE):  http://www.unece.org/env/pp/compliance/Compliancecommittee/54TableEU.html Last items at the bottom of the page (as at this date), namely “draft findings” and “letters to the parties”

Short video explaining the Aarhus Convention: http://www.unece.org/env/pp/vid-presentation.html

(2) – http://ec.europa.eu/eu_law/infringements/infringements_dommages_en.htm

In a nutshell UNECE has ruled that the manner in which the EU is implementing its renewable energy programme (20% renewable energy by 2020) is not in compliance with the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, namely the citizen’s human and environmental rights, see introduction and three minute video clip: http://www.unece.org/env/pp/introduction.html .

Essentially the Convention defines the procedural rights of the citizen relating to the provision of information on the environment, the participation in the development of policies and individual planning decisions and finally the right to contest acts and omissions of the authorities in a legal system, which is fair, equitable, timely and not prohibitively expensive.

To repeat again, this case was complex. The EU ratified the Convention in 2005 and in order to do so brought in the necessary legal provision, namely Directives, which applied to the Member States and Regulations, which applied to its own Bodies and Institutions, Ireland was not only the single Member State, which has failed to ratify the Convention, but it failed also to comply with the necessary EU legislation implementing the Convention. While the UNECE Aarhus Convention Compliance Committee will investigate Communications from the public, they cannot do so in the case of Ireland, as it will not ratify the Convention, so a much more complex case had to be developed to bring the EU before the Compliance Committee. Furthermore, the Compliance Committee has only a limited amount of resources, so they will investigate only a limited number of test cases and will chose to investigate what aspects they consider important in improving general compliance with the goals of the Convention.

In this respect, they are not a regular legal court, so not all aspects in which EU and National law was breached will be addressed, only specific terms related to the Convention. In addition many of the issues were highly technical, which would be better understood by technical experts rather than a tribunal of legal experts with a limited timeframe.

However, this is a hugely important decision, which goes beyond the Irish situation to all the 27 Member States, the renewable energy programme as it currently stands is proceeding without ‘proper authority’, the public’s right to be informed and to participate in its development and implementation has been by-passed. The goal of UNECE is to achieve compliance with the Convention, a process will now be started to ensure that the recommendations are addressed, if ultimately they are not, then UNECE has the option of requiring the EU to withdraw from this UN Convention on Human and Environmental Rights.

Finally there is another ‘twist to this tale’, as the Convention is part of EU law, there is now a legal ruling that this law has not been complied with. There are long established legal procedures where if a Member State does not comply with EU law, the citizen can seek ‘damages made good’. http://ec.europa.eu/eu_law/infringements/infringements_dommages_en.htm
Electricity costs are soaring to implement these dysfunctional policies, which have by-passed proper and legally required technical, economic and environmental assessments. Not only is the landscape being scarred as thousands of wind farms are being installed, but people in the vicinity are suffering health impacts from low frequency noise, while birdlife and other wildlife is also adversely impacted. It is long overdue that a STOP was put to this type of illegal and dysfunctional policy development and project planning.

Pat Swords

Here is a Q&A from Pat on the Convention after returning from a September 2011 Compliance Committee meeting in Geneva.

JenniferMarohasy.com carries the debate in Australia

David Whitehead , Pat Swords Turn 180

The United Nations Economic Commission for Europe (UNECE) Aarhus Convention on Access for Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters has a Compliance Committee which meets four times per year in the UN at Geneva.  On the 4th May 2012 it issued its draft findings and recommendations, in relation to a Communication in respect of the compliance by the EU with the terms of Convention with the implementation of the Renewable Energy Programme in Ireland. The Committee determined that :-

• The European Union did not comply with the provisions of the Aarhus Convention in connection with its 20% renewable energy by 2020 programme (Directive 2009/28/EC) and its implementation throughout the 27 Member States by the National Renewable  Energy  Action Plans (NREAPs).

• The Compliance Committed ruled that the EU did not have the proper legislative framework, with regard to the implementation of the NREAPs by the Member States, in relation to legally binding provisions requiring public participation in decision making relevant to plans and programmes on the environment.  Namely ensuring that the public affected have been provided with the necessary information in order to participate witin a transparent and fair framework, allowing sufficient time for informing the public and for the public to prepare and participate effectively. This has to occur when all options are open and effective public participation can occur. Furthermore, the authorities have to ensure and document that in the resulting decision, due account is taken of the outcome of the public participation.

• The Compliance Committee ruled that due to the failures in relation to a required proper legislative framework for implementation of the NREAPs, the EU was in non-compliance with the Convention in relation to its obligations to take the necessary legislative, regulatory and other measures, including measures to ensure the compatability between the provisions implementing the information, public participation and access to justice provisions in the Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of the Convention.

Main findings with regard to non-compliance

1.      The Committee finds that the Party concerned

a.           by not having in place a proper legislative framework to implement article 7 of the Convention with respect to the adoption of NREAPs by Member States on the basis of Directive 2009/28/EC has failed to comply with article 7 of the Convention (para. 86);

b.           by not having properly monitored the implementation by Ireland of article 7 of the Convention in the adoption of Ireland’s NREAP also has failed to comply with article 7 of the Convention (para. 86);

c.           by not having in place a proper legislative framework to implement article 7 of the Convention with respect to the adoption of NREAPs by Member States on the basis of Directive 2009/28/EC has failed to comply also with article 3, paragraph 1, of the Convention (para. 87);

B.     Recommendations

2.      The Committee pursuant to paragraph 36 (b) of the annex to decision I/7 and noting the agreement of the Party concerned that the Committee take the measures requested in paragraph 37 (b) of the annex to decision I/7, recommends that the Party concerned adopt a proper legislative framework for implementing article 7 of the Convention with respect to the adoption of NREAPs. This would entail that the Party concerned ensure that the arrangements for public participation in a Member State are transparent and fair and that within those arrangements the necessary information is provided to the public. In addition, such a legislative framework must ensure that the requirements of article 6, paragraphs 3, 4 and 8, of the Convention are met, including reasonable time-frames, allowing for sufficient time for informing the public and for the public to prepare and participate effectively, allowing for early public participation when all options are open, and ensuring that due account is taken of the outcome of the public participation. Moreover, the Party concerned must adapt the manner in which it evaluates NREAPs, accordingly.

See UNECE Statement Here

To spend billions of our money a ‘positive’ has to be proven.

Turn 180
Wind and solar energy, when the weather is right, are effective for what is on the clothes line. This does not mean that Ryanair are going to buy gliders or sailing ships will deliver cargo into our ports. Yet we revel in the fact that billions are to be spent in ensuring that 37% of Ireland’s electricity is to be wind powered. Many engineers ‘spoil the party’ by pointing out that this technology is completely obsolete, is
ineffective and can only be supported by massively inappropriate subsidies. Others argue that it is ‘free energy’ and our future wealth.

Pat Swords is a Fellow of the Institution of Chemical Engineers and a Chartered Environmentalist. He has not only designed high technology industry throughout Ireland and Europe, but over a decade on EU technical assistance projects helped implement EU environmental legislation into the new Member States. Pat, a specialist in environmental protection, will only tolerate expenditure on that which is
cost effective and appropriate; Green and grandiose is out.
Pat’s point is clear, public opinion does not bestow Rights; only the law does. Pat and other similar professionals can demonstrate, that the approximately one thousand wind turbines installed to date in Ireland, have completely failed to deliver their claimed emissions and fuel savings. Furthermore, no additional savings will ensue; as we implement the Government and EU approved plan to increase the number of
turbines to nearly four thousand, complete with a doubling of our high voltage grid by an extra 5,000 km.
However, to be clear Pat does not have to prove a ‘negative’. To implement such a plan, the Administration has to prove to us a ‘positive’. After all, even for a small project at home, one has to know how much does it cost and why are we doing it! So Pat started looking for the information, which should have been there by law. He is nearly three years later still looking, but now with the assistance of the United Nations Aarhus Convention Compliance Committee, who are well advanced on a compliance investigation (Communication ACCC/C/2010/54) against the EU.
To explain, while Irish law defers to that of the EU, the EU has also ratified International Treaties and Agreements. One such is the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. This is important, it is your Human and Environmental Rights, in particular your procedural rights to participate in the decision making around you. If one wants to implement a significant industrial policy or project, the public has to be provided with information related to costs / benefits / impacts and allowed to properly participate in both the policy development and individual planning decisions.
Ireland won’t ratify the Convention; its Administration does not believe in transparency or in providing its citizens with access to a legal system, which is fair, equitable, timely and not prohibitively expensive to contest acts and omissions of the authorities. So in Europe and Central Asia, we are essentially alone with Russia in this regard. However, the EU ratified the Convention in 2005, so it applies to
Community legal order here in Ireland.
To calrify, with regard to public participation in decision-making, members of the public do not have a veto right, but the authorities must, to an objectively high standard, show that public comments have been seriously considered. Therefore they should be able to show why a particular comment was rejected on substantive grounds. Indeed in appropriate circumstances a member of the public, whose comments were not duly taken into account, should be able to challenge the final decision in a judicial proceeding. Elsewhere in Europe this is routine with a cost amounting to less than €5,000. The Irish Administration has already been in and out of the European Court of Justice for a refusal to comply with the EU Directives implementing the Convention. However, this is where things are getting interesting. The Treaty of Lisbon is clear, the Citizen has a Right to Good Administration and to have damages made good. Furthermore, the European Court of Justice has several decades of case law on citizen’s rights to damages where EU law was not adhered to.
Eirgrid engineers pointed out in 2004, the inefficiencies on the grid which would occur if the current level of wind energy, about one thousand turbines, was installed. They concluded a 15% increase in generation costs was not justified given other alternatives. They were ignored, so household electricity rates have gone from 15 cent per unit in 2006 to the current 20.5 cent per unit, while natural gas, which fuels
60% of our electricity, is still for industry consumers in the 2006 price range. If one installs lots of wind turbines from Denmark, where household rates are a whopping 29.5 cent per unit, then all these billions will have to be paid for.

Pat’s efforts in his private time are demonstrating that neither the Irish Administration nor the EU made the slightest effort to comply with the legally binding Convention. Not only has no verification been made of emission savings to date, but the costs and emission savings associated with the now legally binding 40% renewable energy target are completely unknown. Indeed, under the original 2001 EU Directive on renewable energy, the EU Commission was legally required by 2005, to assess the environmental degradation cost associated with the greenhouse gas emissions from conventional power stations and the price distortion effects associated with public support for renewable energy. They simply decided not to complete the report and instead came up with an even bigger programme for renewable energy. This is a plan based completely on political ideology, which has by-passed the legally binding procedures in relation to assessment and democratic accountability.
As Ireland won’t ratify the Convention, the Compliance Committee cannot accept a Communication in relation to alleged non-compliances by Ireland. So Pat had to document a case against the EU. As the Compliance Committee pointed out after their September 2011 meeting after hearing evidence from both parties; on approval of the Convention, the EU declared that it would be responsible “for the performance of
those obligations resulting from the Convention which are covered by Community law in force”. They therefore concluded in their follow up letter to the EU Commission with:
“Could you please explain why the Commission says that it is not responsible for the actions of the Member State in this case?”
The Compliance Committee meet four times a year. They propose to issue their draft findings and recommendations after their March 2012 meeting.   As Pat states; “the evidence of non-compliance is overwhelming, while one will have to wait for the ruling; non-compliance with the Convention is a breach of EU law. The Compliance Committee has already ruled that the EU has to provide better access to the European Courts for citizens to challenge acts and omissions of EU institutions.

There is no reason why Irish citizens should be paying for renewable energy contracts, which were awarded without ‘proper authority’ or planning permissions, which were granted in a manner which was not legally compliant.

To: EU Commission, DG Environment, Directorate C1; Renewables and CCS policy

Attention: Hans Van Steen, Head of Unit

Re: Seeking redress – Forthcoming complaint to the EU Ombudsman in relation to the EU programme on renewable energy

Date: 22 March 2012

Dear Sir,

The European Platform Against Windfarms (EPAW), whose details have been noted in your Transparency Register, represents 523 federations and associations from 23 European countries.

EPAW intents to lodge a formal complaint against the EU Commission to the EU Ombudsman in relation to EU programme on renewable energy; see details below in relation to maladministration. As the EU Ombudsman’s rules state, it is necessary to contact the EU institution concerned in order to seek redress. This therefore is the purpose of this letter. Furthermore, as the maladministration described below is systematic and involves sums of money running into € billions, EPAW also intends to lodge a formal complaint with OLAF, the EU anti-fraud office. Finally, the Charter of Fundamental Rights (Lisbon Treaty); Title V (Citizen’s Rights) Article 41 states:

• Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

There is established jurisprudence in this area[1], which is currently being investigated by members of EPAW.

Substance of the Maladministration: (1) Aarhus Convention

The United Nations Economic Commission for Europe’s Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was ratified by the EU in February 2005 and is a part Community legal order. As the Commission knows, it is part of a Communication ACCC/C/2010/54 (compliance investigation) at the Aarhus Convention Compliance Committee in relation to the renewable energy programme in Ireland. This relates to how:

• The EU had approved the State Aid (REFIT) for some 80% of the wind turbines erected to date;

• The EU had provided €110 million in direct funding for the electrical interconnector to Wales, whose sole function was to facilitate the expansion of more wind energy and;

• The EU had also failed to ensure that the Irish public were correctly informed with environmental information and provided with proper public participation in relation to the National Renewable Energy Action Plan (NREAP), which is part of the implementation of Directive 2009/28/EC.

The Compliance Committee meet on the 27^th March 2012 to issue their draft findings and recommendations on this Communication[2], while following their meeting in September 2011 the Compliance Committee sent a letter to the EU Commission[3] pointing out, on approval of the Convention, the EU declared that it would be responsible “for the performance of those obligations resulting from the Convention which are covered by Community law in force”. They therefore concluded the letter with:

· “Could you please explain why the Commission says that it is not responsible for the actions of the Member State in this case?”

Note: There was a failure to respond to the Compliance Committee with the information sought. Other failures which are now clearly obvious from the web page of the Communication[4] include:

• Ireland has failed to complete the mandatory Strategic Environmental Assessment for its renewable energy programme. The EU has stated in writing on two separate occasions that Ireland was fully compliant with the Directive on Strategic Environmental Assessment (Directive 2001/42/EC) for this programme which simply is not the case.

• The EU Commission was complicit in ensuring that the necessary Strategic Environmental Assessments required prior to adoption of the National Renewable Energy Action Plans (NREAP) were not completed in the 27 Member States, thereby bypassing a key element of public participation in decision making.

• The EU Commission approved further State Aid (REFIT II) in January 2012 for 4,000 MW of renewable energy in Ireland, on the basis that it could do so without regard to the Aarhus Convention. Note: Recital (90) of Directive 2009/28/EC requires the implementation of the Directive to reflect the provisions of the Directive. Furthermore, the EU Commission ignored the provisions of the Aarhus Convention when it approved the REFIT I State Aid in 2007.

• The information in relation to emissions savings found in Section 10 of the Jan 2012 progress reports on the National Renewable Energy Action Plans is false, while the EU Commission clearly see it as the obligation of the public, rather than their obligation, to evaluate the transparency of the environmental information.

Furthermore, the information in the EU’s Intelligent Europe projects, GP Wind and WINDFACTS is false, in particular in relation to emission savings. The EU Commission has failed to address this issue even though it has been brought to their attention.

With regard to the recent public consultation on the renewable energy strategy[5], as EPAW had serious concerns in relation to the manner in which the EU Commission is completing public participation in relation to renewable energy, it sent in the attached access for information request in relation to compliance of the renewable energy strategy with the Aarhus Convention. The Commission failed to reply within the statutory period, but finally responded, as attached, stating that this consultation would be conducted and evaluated on the basis of the Commission Communication Com (2002) 704: “Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission”.

This is a document and a procedure, which does not comply with Article 7 of the Aarhus Convention. In addition, the EU Commission in their reply made it very clear in that as far as they were concerned, access to justice and Article 11 of Regulation 1367/2006 did not appear to be related to the public consultation in question, a further breach of the rights and obligations under the Aarhus Convention.

Substance of the Maladministration: (2) Failure to comply with rules for State Aid for Environmental Protection

The latest guidelines on state aid for environmental protection are provided in Commission Notice 2008/C82/01 “Community Guidelines on State Aid for Environmental Protection”. Section 5.2.1.4 on the Proportionality of the Aid is clear in that “the Member State should provide evidence that the aid is necessary, that the amount is kept to the minimum and that the selection process is proportional. Section 1.3.5 also states in relation to Proportionality of Aid: “Aid is considered to be proportional only if the same result could not be achieved with less aid. In particular, the aid amount must be limited to the minimum needed to achieve the environmental protection sought”.

This is the overriding principle of EU Legislation, including that of environmental protection, called the Principle of Proportionality, which requires that the extent of the action must be in keeping with the aim pursued. When applying the general principle of proportionality, the European Court of Justice frequently states that the principle requires an act or measure to be “suitable” to achieve the aims pursued, or it rather concludes that a decision is disproportionate because it is “manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue”[6].

The documentation in relation to Communication ACCC/C/2010/54 reveals in relation to the Irish renewable energy programme:

· No ranking system was ever prepared in relation to the different renewable technologies and their ability to meet the objectives of the renewable Directive. In other words the relative abilities to achieve greenhouse gas savings and the resulting cost basis was never assessed;

· No alternatives were ever considered. The focus was solely to obtain the maximum percentage of wind energy on the grid;

· No verification of emission savings with the wind energy installed to date has been completed;

· No estimation of greenhouse gas savings has been completed with regard to Ireland’s National Renewable Energy Action Plan;

· No estimation of the emissions savings in relation to REFIT II was ever completed or required by the EU Commission for its approval.

· The funding mechanisms for the renewable energy programme (REFIT) are to ensure delivery of an EU obligation in relation to renewable energy and not part of a commitment to contribute to any quantifiable environmental target related to quantified carbon dioxide savings.

With regard to REFIT I, which has funded 1,384 MW of the 1,685 MW of wind energy on the Irish grid, in 2004 the Irish grid company Eirgrid produced a report documenting the induced inefficiencies which would occur on the grid due to the installation of increased levels of wind energy. This was ignored in the 2006 REFIT I application, in which the emission savings claimed were double that of the Eirgrid report, based on wind industry standard figures.

It is now clear from analysis of the current Eirgrid monitoring data, that their 2004 report if anything overstated what emission savings would occur. Therefore not only were the REFIT I claims out by a factor of about three, but if further wind turbines are installed on the Irish grid, no more emission savings will occur.

A key legally binding principle of environmental protection is the analysis of cost, benefits and consideration of alternatives. Yet when it comes to greenhouse gases there has been essentially a complete failure to properly fund and execute these vitally necessary, albeit complex, studies. We are in the dark about the external cost of greenhouse gases. To explain, the internal cost is what we pay directly, such as on our electricity bill, while the external cost does not appear as a direct charge to the consumer: it has a cost to society as a whole, such as through environmental degradation. Obviously external costs are an absolute key element of cost, benefit analysis and the resulting decision making.

The first EU Directive on renewable energy in 2001 (2001/77/EC), had as its principle objective the reduction of greenhouse gases to comply with the Kyoto Protocol. The EU Commission was required by the end of 2005 to prepare a report for the European Parliament and the Council which should:

· “Consider the progress made in reflecting the external costs of electricity produced from non-renewable energy sources and the impact of public support granted to electricity production”.

This report couldn’t be found on the internet or the EU’s own document register. An access to information request under Regulation 1366/2006 has since confirmed that the EU Commission simply failed to complete this report and instead implemented an even larger renewable energy programme.

Ireland’s renewable energy programme is simply a massively expensive project to install over four thousand wind turbines and to double the grid by an additional 5,000 km of high voltage lines. It is not a programme to provide environmental protection. Yet the huge costs involved, both financially and environmentally, are applied through the EU’s own mechanisms for State Aid for Environmental Protection, without any data being available to support the environmental protection objective claimed.

The preliminary indication is that the same failures, in relation to complete lack of transparency with regard to State Aid for Environmental Protection to fund renewable energy programmes, has occurred in other Member States as well. Simply put, these State Aid funding programmes are not legitimate.

Sincerely,

Mark Duchamp
Executive Director, EPAW
www.epaw.org