New Rules Applicable to Classified Installation for Methanisation in France - Publication de l'Arrêté sur les Installations Classées de Méthanisation

Publié au JORF du 21 août 2010, l'arrêté du 12 août 2010 fixe les règles générales applicables aux installations classées de méthanisation relevant du régime de l'enregistrement au titre de la rubrique No. 2781-1 de la nomenclature des installations classées pour la protection de l'environnement (régime ICPE). Pour rappel, et comme défini par l'arrêté, la méthanisation est le "processus de transformation biologique anaérobique de matières organiques qui conduit à la production de biogaz et de digestat."

L'arrêté s'applique aux installations classées de méthanisation de déchets non dangereux ou de matière végétale brute (Art. 1). Il fixe les règles applicables à l'ensemble de la chaîne de méthanisation, du dépôt de demande d'enregistrement par l'exploitant, aux règles d'urbanisme applicable à l'installation, à la prévention des accidents et des pollutions, les caractéristiques des canalisations et lieux de stockage des équipements de biogaz, les caractéristiques des lieux de traitement et de stockage du biogaz et du digestat, les règles de sécurité, le contrôle des rejets (eau, air), la tenue de registres entrées-sorties de déchets et de digestats.

En plus des aspects liés au traitement de déchets voués à la méthanisation, l'arrêt couvre leur valorisation et en particulier l'utilisation du digestat. Le digestat est défini comme le "résidu liquide, pâteux ou solide issu de la méthanisation de matières organiques" (Art. 1). Voir notamment l'Annexe I relative aux dispositions techniques en matière d'épandage.

L'utilisation du biogaz résultant du processus de valorisation n'est que très partiellement couverte par l'arrêté. En effet, ces aspects sont déjà couverts par: la circulatire du 10 décembre 2003 relative aux installations classées de combustion utilisation du biogaz; le décret du 15 juin 2004 relatif ax prescriptions techniques applicables aux canalisations et raccordements des installations de transport, distributions et stockages de gaz; et l'arrêté du 10 juillet 2006 relatif aux tarifs d'achat de l'électricité issue du biogaz. Those rules also answer requirements made by European law.

Références:

• ADEME, pages dédiées à la méthanisation et ses diverses applications;
• Site dédié au biogaz, Lebiogaz.info.

Access into the Grid for Renewables - Accès au Réseau pour les Energies Renouvelables: Décision de la CRE sur 3 Parcs Eoliens

A été publiée au JORF de ce jour la Décision de la Commission de Régulation de l'Energie concernant le différend qui oppose trois sociétés d'exploitation de parc éoliens (parcs éolien de Le Nouvion, de Saint-Riquier et de Saint-Riquier 2) à RTE EDF Transport (RTE). Le différend concerne les conditions de raccordement des installations de production d'électricité d'origine éolienne au réseau public de transport, ainsi que le rôle et le degré de responsaibilité de RTE dans la gestion et le suivi des demandes de raccordement.

La décision de la CRE porte sur deux points de droit relatifs à:

• d'une part, l'engagement de RTE en vertu de la convention de raccordement conclue quant à la signature de la convention d'exploitation et du contrat d'accès à la Société Le Nouvion qui sera propriétaire et exploitant du projet de parcs éoliens dont les conditions d'accès sont en cause; et,
• d'autre part, les obligations d'information et de conseil de RTE en tant que gestionnaire du réseau dans l'élaboration de l'offre de raccordement suite à une négligence alléguée dans l'apport d'une solution pour le projet, une telle négligence engageant la responsabilité de RTE et la possibilité d'ouvrir droit à réparation pour les préjudices causés.

Les détails de la décision seront ajoutés très prochainement.

Référence: Décision du 12 juillet 2010, CRE, JORF du 20 août 2010.

Publication of the New Regulated Electricity Tariffs in France - Publication des Nouveaux Tarifs Réglementés de l'Electricité

Ont été publiés au Journal Officiel du 13 août 2010 2 arrêtés relatifs aux conditions de commercialisation de l'électricité en France selon les modalités suivantes:

• Arrêté du 12 août 2010 relatif aux tarifs réglementés de vente de l'électricté (JORF No.0186 du 13 août 2010 p. 14872).
• Arrêté du 12 août 2010 relatif aux tarifs de cession de l'électricté aux distributeurs non nationalisés (JORF No. 0186 du 13 août 2010 p. 14893).

La publication de ces deux arrêtés fait suite à l'avis positif donné par la Commission de régulation de l'énergie dans sa délibération du 11 août 2010 suite à la saisie par le gouvernement en date du 3 août. Elle répond également à la décision du Conseil d'Etat du 1er juillet 2010 (No.321595) sur l'évolution des tarifs réglementés jaune et vert de l'électricité.

Voir également le communiqué de presse du Ministère de l'Ecologie, de l'Energie, du Développement Durable et de la Mer du 12 août.

Les nouveaux tarifs entreront en vigueur le 15 août 2010.

Biodiesel: The EU Commission Opens an Investigation Against Possible Circumvention of Anti-Dumping Measures by the US

The conflict between the European Union (EU) and the United States regarding the situation of dumping created by the US imports of subsidised biodiesel into the EU has just reached another level.

In today's Official Journal of the EU (OJ L 211 of 12.8.2010), the Commission has adopted two regulations opening for an investigation regarding the possible circumvention of countervailing measures imposed in 2009 to biodiesel products originating in the United States. Following the adoption of Council Regulation (EC) No. 598/2009 of 7 July 2009, anti-dumping and countervailling measures were adopted on imported biodiesel for a duration of 5 years on the grounds that:

"biodiesel, and all blends, [...] produced in the US and exported at subsidised price to the Community had affected the economic situation of the biodiesel producers in the Community" (para. 33). Similarly, and in addition to the fact that "the subsidised import volumes from the USA increased significantly during the period analysed," "there was also a clear coincidence in time between the surge of subsidised imports and the deterioration of the economic situation of the Community industry. That industry was not able to set its prices in line with market conditions and the cost increases, as its prices were undercut during the IP by the subsidised imports" (para. 132).

One year later, the European Commission received on 30 June 2010 a request lodged by the European Biodiesel Board (EBB) based on Article 13.3 of Council Regulation (EC) No. 1225/2009 of 30 November 2009 on the protection against dumped imports from countries not members of the EC.

EBB was suspecting the United States of exporting biodiesel products by way of circumvention. The specificities of the product under investigation, biodiesel, are defined in Section B of the Regulation (UE) No. 720/2010 of 11 August 2010 initiating the investigation:

"The product under investigation is fatty-acid mono-alkyl esters and/or paraffinic gasoil obtained from synthesis and/or hydrotreatment, of non-fossil origin, commonly known as 'biodiesel', in pure form or in a blemd containing by weight more than 20% of fatty acid mono-alkyl esters and/or paraffinic gasoil obtained from synthesis and/hydro-treatment, of non-fossil origin, consigned from Canada and Singapore and biodiesel in a blend containing by weight 20% or less of fatty-acid monoalkyl esters and/or paraffinic gasoil obtained from synthesis and/or paraffinic gasoil obtained from synthesis and/or hydro-treatment, of non-fossil origin, origintaing in the United States of America ..."

As a result, by Regulation (UE) No. 720/2010, the European Commission has decided to investigate whether there was circumvention of the anti-dumping mesaures defined in Council Regulation (EC) No. 599/2009 on imports of biodiesel originating in the United States by imports of biodiesel consigned from Canada and Singapore. The Commission is now suspecting that the anti-dumping measures on imports of biodiesel from the US are being circumvened by means of the transhipment of biodiesel via Canada and Singapore and by exports of biodiesel in a blend containing by weight 20% or less of biodiesel. (para. D. Grounds)

The manner to export biodiesel seems to have changed after the adoption of the anti-dumping measures in 2009. The main element in these modifications consists in the transhipment of biodiesel from the US via Canada and Singapore. The other ground relates to a suspected modification of the exported products to avoid the threshold limit of 20% biodiesel in blended biodiesel (which was used to distinguish products in the preliminary investigation, see Regulation (ec) No.598/2009). Finally, it looks like the volume of the previous US exports have been replaced by exports via Canada and Singapore of biodiesel in blends containing 20% or less of biodiesel at lower prices. The Commission could add new grounds along its investigation.

The core question in the investigation is to know whether the circumvention of anti-dumping measures was intended. If not, the measures could eventually benefit from exemption rules as defined in Article 13.4 of the Council Regulation (EC) No. 599/2009. Nevertheless, the imports of the investigated products must be registered in order to allow the application of possible anti-dumping duties with retroactive effects in the situation where the Commission's investigation concludes that there is circumvention.

The Commission has nine months to proceed to the investigation. Parties will be audited and questionnaires will be sent to both national authorities and interested parties, including the exporters/producers and associations of exporters/producers in Canada, Singapore and the United States.

It should be reminded that such procedures are based on the rules of the WTO, as enshrined in the Agreement on Subsidies and Countervailing Measures of 1994.

References:

• Commission Regulation (EU) No. 720/2010 of 11 August 2010 initiating an investigation concerning the possible circumvention of anti-dumping mesaures imposed by Council Regulation (EC) No. 599/2009 (OJ L 211 of 12.8.2010, p.1);
• Commission Regulation (EU) No. 721/2010 of 11 August 2010 initiating an investigation concerning the possible circumvention of countervailing measures imposed by Council Regulation (EC) No. 598/2009 (OJ L 211 of 12.8.2010, p.6);
• EBB press release of 12.8.2010.

The 2009 EU Environment Policy Review Argues for "A Resource Efficient Europe"

The Annual Environmental Policy Review (EPR) for the year 2009 has been released on 2 August. The EPR summarises the last trends recorded in environmental policies at both EU and Member States' (MSs) level. It also assesses the progress towards the achievement of the goals defined in the 6th Environment Action Programme (EAP6). Only the elements strictly related to energy policy are reported below.

EPR 2009 is structured in three parts:

Part 1 - Main developments in EU environmental policy in 2009

Four priority areas defined in the EAP6, namely climate change, nature and biodiversity, environment and health, and natural resources and waste. This section also identities the important fields for the year to come.

1. Climate Change

• The Commission reminds the plans it adopted in June 2009 to finance the demonstration of CCS in cooperation with China. "The EU and China have made a commitment to develop and demonstrate advanced, near-zero emissions coal technology through carbon carpute and storage by 2020. The investment scheme could serve as a model for other technology cooperation activities." In 2010, the Commission announces that it will discuss the provisions of the CCS directive with MSs and stakeholders, including: CO2 storage life cycle risk management, site characterisation, CO2 stream composition, monitoring and corrective measures and financial contribution. It will release guidance documents by the end of 2010. The Commission plans to establish a Scientific Panel in roder to assist the Commission in its review of the draft permits and draft transfer decisions pursuant to the CCS Directive. It must also review its Decision establishing guidelines for the monitoring and reporting of GHG emissions pursuant to the 2003 ETS Directive in order to include monitoring and reporting guidelines for GHG emissions from the capture, transport and geological storage of CO2.
• The adoption of the Climate and Energy Package of April 2009 forms part of the mitigation efforts of the EU. The rest of 2009 has been dedicated to the preparation of implementation measures.
• The third energy liberalisation package of August 2009 is seens as a crucial step towards the completion of "a true internal market in electricity and gas." This will indeed "be crucial in delivering a low carbon economy - facilitating the intergation of renewbale energy sources and bringing a European focus to network planning.

2. Nature and Biodiversity

Energy is inter alia treated under the Thematic Programme for Environment and Natural Resources, including Energy (ENRTP), financing related projects.

(Not energy relted issues in Section 3. Environment and Health.)

4. Nature Resources and Waste

The Commission notes the publication in October 2009 of the first report of the International Panel on Sustainable Resource Management (set up under the UN Environmental Programme, UNEP) on the theme of biofuels: options for efficient and sustainable production and use of biomass; restoring degraded land; energy recovery from agricultural waste and residues.

Following the Gulf of Mexico disaster, the Commission announces an assessment of the current legislative framework in relation to the requirements on "sustainability and envionmental safety and in relation to environmental liability for damages in the area of offshore hydrocabrons exploration and production."

The Conclusion of Part 1 is worth a full quotation:

"At the end of 2008, the European Economic Recovery Plan providing a fiscal stimulus of 400 billion euro was adopted. It included green initiatives, focusing on energy-savings and climate change measures, and is currently being implemented by the Commission and Member States. The Commission's analysis of green elements in national economic recovery plackages showed that most Member States directed their efforts towards energy efficiency, renewable energy, public transport, fleet renewal of passenger cars, infrastructure and eco-innovation.

The coming years should show how the measures contribute to shifting to a low-carbon and resource-efficient economy. However, only a few Member States included measures to promote resource efficiency (recycling, waste prevention and treatment), water infrastructure, and ecosystems protection and management, promotion of 'green consumption' via green public procurement or via incentives for consumers to purchase greener products. The number of 'green measures' planned, as well as depth of the approach, vary significantly from one Member State to another.

The European 2020 strategy - adopted by the European Council in June 2010 - also supports the need to shift to a resource-efficient economy. The successor of the Lisbon strategy for growth and jobs seeks to ensure that Europen emerges from the economic crisis stronger, and it paves the way for smart, green and inclusive growth. In this context, the Commission proposed launching 'Resource efficient Europe' as a key flagship initiative of Europe 2020. This would require full integration of environmentl concers in many other policy areas, while ensuring internal policy coherence. The drive will lead to a number of follow-up initaitves in the course of 2010."

In other words, it looks like "RESOURCE EFFICIENCY" is becoming the new leitmotiv of the European Commission in terms of integration of environmental objectives into other policies.

Part 2 - Statistical data

Data reported here builds on the four priority areas scrutinised in Part 1. An overview of the state of implementation of EU environmental legislation is provided.

Part 3 - Commission's summary of the major environment policy developments in the MSs.

References: SEC(2010) 975 final, 2.8.2010.

Case T-62/08 ThyssenKrupp Acciai Speciali Terni SpA v. European Commission: When the Extension of a Compensatory Measure Becomes A State Aid

... A case on the late aftermaths of the prolongation of what was a compensatory measure adopted under the nationalisation of the electricity sector in Italy.

An interesting judgement of the General Court of 1 July 2010 relates to the qualification as state aid of the extension of a compensatory measure adopted by the Italian government at the time of nationalisation in the 1960s.

Facts and legal issues

The compensatory measure consists in a preferential tariff for the supply of electricity, the aim of which was to compensate for expropriation of Terni. Terni was operating in the steel, cement and chemicals sectors. It owned and operated an hydroelectric powerplant mainly for its own needs. The Italian government decided then that "[g]iven its strategic importance for the country's energy supply,' Terni's hydroelectricity assets should be nationalised by the way of transferring its assets to ENEL 'despite the fact that Terni was a self-producer" (para.4). The compensatory measure for expropriation following nationalisation of the hydroelectric sector in 1962 consisted in the granting of a preferential tariff (the Terni tariff) for the supply of electricity, which was first applied from 1963 to 1992. The disputed measure in the case consists in its renewed temporal extension by Law No. 80/05 as from 1 January 2005 and not in the initial compensatory measure as defined in Decree No. 1165/63 (in terms of volume, price and length).

The compensatory measure had been extended once, from 1992 to 31 December 2001. In that case, the Italian government intended to adjust the compensatory measure with the renewal of hydroelectric concessions. This renewal included a provision on the progressive decrease of the level of the aid granted to Terni (by way of lower electricity traiff). The measure was notified to the EU, and the European Commission decided 'not to raise objections' to the application of Law No 9/91.

A progressive phase-out of the measure was also meant to follow the liberalisation of the electricity market. However, the applicant argues here that the liberalisation process initiated in Italy by Decree No.79/99 in the electricity sector did not deliver the expected result, which were of enabling the Terni companies to purchase electricity directly on the liberalised power market at competitive rates, "similar to the production costs they would have had if they had retained possession of the expropriated plants" (para. 37, arguments of the parties). According, and still according to the applicant, "in 2005 the liberalisation of the electricity market in Italy did not produce the anticipated favourable effects in terms of competition and the Terni companies were once again in the position of being discriminated against as compared to the non-expropriated self-producers, which led the legislature to adopt the disputed measure." "Ultimately, the disputed measure kept intact the underlying rationale of the compensation, which was to treat Terni like a virtual self-producer." (para.37)

Indeed, the 'true compensatory nature' of the measure adopted in 2005 is the core question examined in Case T-62/08. The Commission assessed it as fulfilling the criteria of state aid in the contested Decision 2008/408/EC of 20 November 2007 on the state aid C 36/A/06 (ex NN 38/06) (OJ 2008 L 144, p.37).

The applicant disagrees with the Commission's assessement. It argues that "the disputed measure cannot be categorised as State aid as the condition relating to the grant of an advantage to the recipients is not satisfied, that mesure being purely compensatory in nature." (para.58)

In its decision, the Commission agrees in saying that "the compensation granted by the State for an expropriation of assets does not normally qualify as State aid (recital 70 of the contested decision)." This is indeed established case law. But here, the terms of the problem are different as it regards an extension of compensation, with discutable legal basis and justification.

Judgement of the General Court

On the nature of the initial measure, the Court estimates that it is "completely unambiguous that the Terni tariff was granted by way of compensation for a very specific period, with no possibility of postponing the expiry date," which was fixed to 31 December 1992 and extended by Law No. 80/05 until 2010 (under tariffs and quantities agreed upon in 2004). But the extension in time of the measures did not have the compensatory nature as the initial measure did. (para.119)

The application justifies the extension as follows: "the duration of that tariff must, in keeping with the underlying rationale of the compensation chosen by the national legislature, be extended systematically in alignment with the non-expropriated self-producers' renewals, in order to neutralise 'continually' the adverse effects of nationalisation, in the light of changes in electricity prices."(para 129)

The Court rejects critically the arguments, by saying that: "Yet, the application has not referred to any rule, principle of Community law, provision of nationation law or decision of a national court on which to base its interpretation, which would lead to the grant of compensation for an indefinite period or providing more generally for the possibility of taking account of events subsequent to the fixing of the compensation in order to alter the estimate of the nationalised or expropriated asset and, therefore, the scope of the compensation" (para. 131).

The applicant tries in a final effort to call upon the application of Article 1 of the First Protocol of the European Court of Juman Rights concerning the Protection of Property, as applied in ECHR judgement of 11 April 2002, Lallement v France (on the expropriation of property land used for agricultural purposes). The argument is strongly rejected by the Court in the following terms:

"... not only is the analogy drawn by the application between Terni's situation and that which gave rise to that judgement, ..., questionable, but furthermore the judgement of the ECHR contains no explicit statement to the effect that compensation may 'sometimes call for amounts which are significantly higher than the value of the expropriated property alone." (para.138)

and to conclude that:

"That judgement [of the ECHR] is based on the reasonable relationship which must exist between the amount of compensation and the given value of the expropriated property, a ground which is incompatible with the applicant's interpretation of Article 6 of Decree No.1165/63, which is liable to lead to there being an unlimited or perpetual right to enjoy the Terni tariff, due to the lack of temporal specification." (para.140)

The Court finally agrees with the Commission on the nature of the contested measure as being a state aid since "there could be no doubt that the provision of electricty at lower prices compared to the ordinary electricity tariff constituted a clear economic advantage for the beneficiaries, who saw their production costs reduced and their competitive position strengthened..." (para.141).

Concluding remark

As a general conclusion one can say that national authorities should be extremely careful when envisaging the renewal of compensatory measures and the like granted at pre-liberalisation phases. Market conditions have changed, and adjustment may require a more careful legal argumentation than the one provided by the applicant in that case. This case also underlines the role of the EU state aid regime as a safety net for the application of competition rules on the internal energy market.

A Critical View on Unconventional Gas Drilling in the US: the "Gasland" Documentary Could Open the Debate on Shale Gas in Europe

Following the excellent post by Michael Hoexter on his Blog GreenThoughts, it is worth discussing the GASLAND documentary released in the United States in 2010 relating to the environmental damages of natural gas drilling in the onland territory of the United States. The documentary sets the lights on a particular method of drilling by stimulation called "hydraulic fracturing." This method, also termed "fracing", creates fractures in the rock for the extraction of oil and natural gas. Hydraulic fracturing has been known since the 1940s, but the method of horizontal fracturing at high-volume is more recent.

The documentary - After receiving a leasing proposal from a natural gas company in 2008, the author of this documentary, Josh Fox, decided to get more information by hilmself, touring the US states where hydraulic fracturing is already occuring. This resulted in the production of a "grand public" documentary. (Click on the picture to play the trailer.)


The documentary underlines the effects on humand health and the environment of hydraulic fracturing, especially in terms of air and water pollution including drinking waters pollution in aquifers. The effects that he observed and that citizens alleged are currently discussed by scientists, without a clear consensus for the moment.

Drilling by hydraulic fracturing would not require more authorisations that the ones required for the current drilling operations. However, Josh Fox argues that, because of the polluting effects on water, a proposal for an exemption under the Safe Drinking Water Act was discussed in order to allow for hydraulic drilling and that such exemption was passed under the Energy Policy Act of 2005, which needs to be checked.

How accurate is this documentary? This needs further investigation, in particular related to the regulatory regime of onland drilling and the applicable environmental legislation. Counter-arguments have been summarised on the website EnergyInDepth that is available HERE. The legal exemptions gained in favour of hydraulic drilling are there discussed and denied.

The issue is also of high relevance for Europe, where shale gas potential is under scrutiny, in particular in Eastern Europe and Russia, but also in Western European States. The reserves for shale gas would there be enormous. European Union (EU) Member States have for the moment followed a national approach on the topic, without further concertation. The US has already gained twenty years of experience with the technology that could make it a direct technology supplier to Europe. Another technology race. Russia seems also to have high expetations there. The position of European states and the EU does not seem to be settled, although access to these unconventional gas resources sounds very tempting.

One can wonder what will be at the end the price to pay to quite oil dependency. Without being naive on the components of the energy-mix in the near-future, we nevertheless need some "green thoughts" on shale gas future.

Retour sur l'Application du Principe de Précaution - Application of the Precautionary Principle: A French Perspective

L'Assemblée Nationale Francaise a publiée au mois de juillet dernier un intéressant rapport sur l'évaluation de la mise en oeuvre de l'article 5 de la Charte de l'environnement relatif à l'application du principe de précaution.


Une lecture éclairante et fouillée qui fera l'objet d'un résumé sur ce même blog.

References: Rapport d'Information No.2719 fait au nom du Comité d'Evaluation et de Contrôle des POlitiques Publiques par MM. A. Gest et P. Tourtellier, enregistré le 8 juillet 2010.

Oil and Gas Drilling In the Mediterranean Sea (1/2): Towards a Moratorium Against BP?

Recent articles from the Financial Times set a new light on BP's activities in the Mediterranean Sea. Indeed, BP plans to start oil and gas drilling gas off the coast of Libya, more precisely in the Gulf of Sirte (five wells in total). The reserves expressed by the 22 Mediterranean States have been nourished by the two recent oil spills in the Gulf of Mexico in the United States and the Yellow Sea in China (see pictures from China). The Italian government is particularly active in gathering enough voices to get a Moratorium.

In this first post on the topic, I would like to list a number of legal issues concerning oil and gas drilling in the Mediterranean before trying to answer them in a second post:

• Can coastal states adopt a Moratorium against BP, i.e. against a decision taken by Libya?




• What is the status of international waters in that area of the Mediterranean Sea? And consequently, what is the applicable legislation?




• Does Libya possess sufficient legislation to secure a safe exploitation of deep sea petroleum resources?




• Is Libya part of any binding agreement that could constraint its action in allowing drilling (IMO, UN, etc.)?




• Where stand the Union for the Mediterranean and the Euro-Mediterranean Process? Could they be of any help?




• Is there any other institutions in place in this area and competent in that matter? E.g., the Regional Marine Pollution Emergency Response Centre (REMPEC).

White Certificates: France Publishes an Updated List of Standardised Operations

A new list of standardised operations for the issuance of energy savings certificates (white certificates) has been published in today's French official journal.

An explanatory note will be posted very soon to complete the news.

Reference: Arrêté du 28 juin 2010 définissant les opérations standardisées d'économies d'énergie, JORF no.0178 of 4 August 2010, text no.3, 80 pages.