A group of civil society organisations has launched legal proceedings against the European Commission over the inclusion of gas and nuclear energy in the European Union’s sustainable investment guidelines, the so-called EU Taxonomy.
Controversially adopted before the summer, the taxonomy includes specific investments in gas and nuclear energy, which fall under the category of “transitional economic activities”. However, ClientEarth, the European office of the World Wide Fund for Nature (WWF), the organisation Transport & Environment (T&E), and BUND (Friends of the Earth Germany) argue that the inclusion of gas contradicts the EU Climate Law and the taxonomy regulation itself, as well as international commitments under the 2015 Paris Agreement. “Supporting gas – a fossil fuel that is currently at the centre of the cost-of-living crisis across the bloc – undermines the EU’s core objectives of achieving cleaner, cheaper and more secure energy,” said a representative on behalf of all the organisations. The non-governmental organisations noted that they lacked the technical and legal expertise to challenge the inclusion of nuclear energy projects in the taxonomy. However, Greenpeace also announced a separate legal action against the Commission on Monday (19 September) regarding its green finance rules, objecting to the inclusion of gas and nuclear energy.
Roda Verheyen, a German lawyer specialising in environmental and international law, who helped NGOs in previous court proceedings on climate issues against the German Climate Action Law, is working on the case initiated by Greenpeace. R. Verheyen argued that the inclusion of nuclear energy and gas is in “stark contradiction” with the actual EU taxonomy regulation. “Nuclear energy has no logic at any level in this regard,” and “it is an obviously unscientific approach to define the types of gas projects that should be included under climate policy,” she told EU Observer.
Scientists from the Commission’s expert group concluded that gas power plants should be subject to a 100 g CO2e/kWh electricity threshold to be compatible with the 1.5°C pathway provided for in the Paris Agreement. However, under the proposal, gas power plants would instead be compatible with the taxonomy if their emissions were lower than 270 g CO2e/kWh of electricity.
As legal procedures could last until the end of 2023, it is possible that the EU taxonomy will enter into force before a final court ruling is made.
“If we win this case, I wonder how the commission will ever explain it to global financial markets,” noted lawyer R. Verheyen. “This is a matter of reputation.”
February deadline
Under European Union law, NGOs have the right to request EU institutions to review their decisions – with the right to appeal them to the EU’s highest court. Greenpeace sent a formal request for an internal review to the Commission in September, pointing out legal issues and requesting the decision to be annulled. In their 171-page request document, which includes expert opinions, they also argued that the inclusion of gas and nuclear energy in the taxonomy violates several EU laws and the Paris Agreement. Environmental groups could not submit such a review request until September due to administrative procedures, EU Observer was told by Greenpeace.
The Commission now has until February to respond to the arguments of Greenpeace and other non-governmental organisations. If so-called “green labels” for gas and nuclear energy projects remain in the taxonomy in their current version, the groups will turn to the Court of Justice of the European Union. “The ‘greenwashing’ approach to fossil gas and nuclear energy projects was politically motivated from the very beginning, but that will not help the European Commission in court,” said Greenpeace campaigner Ariadna Rodrigo.
The taxonomy has sparked discontent not only among environmental advocates but also among some European Union member states, which have pledged to sue the EU executive over the inclusion of gas and nuclear energy. Austria is expected to initiate legal proceedings over the inclusion of nuclear energy in the taxonomy by the end of October. “It will definitely happen,” an Austrian official told EU Observer. Meanwhile, Luxembourg has already announced that it will support the legal proceedings initiated by Vienna.