The challenge to the RED II was rejected by the lower court without a hearing in March 2019 on the grounds that the claimants, a group of individuals, and NGOs from Europe and the US, did not have standing to bring the legal claim.
In their legal case, the claimants argued that RED II requires EU member states to treat the burning of wood in the biomass industry as carbon neutral even though it releases CO2 into the atmosphere.
They alleged that the inclusion of forest biomass as a carbon neutral source of renewable energy fatally undermines the greenhouse gas emission reduction goals of the RED II, violates the Treaty on the Functioning of the European Union and breaches a number of their rights under the Charter of Fundamental Rights.
The claimants are now arguing that the EU court's standing rules do not afford them proper access to justice. For a long time, they say, these strict rules have prevented many legitimate environmental cases being brought directly before the EU courts.
The claimants are calling for the rules to be applied compatibly with a UNECE convention on public participation in environmental decision-making and access to justice in environmental matters, also known as the Aarhus Convention.
Mary S. Booth, director of Partnership for Policy Integrity, who are supporting the appeal and recently authored a report criticising the sustainability protections under RED II, said:
“Policymakers claim the sustainability criteria in the RED II are protective, but in reality the provisions are a complicated web of words that will do nothing to stop the most damaging biomass practices that are ongoing today. Even if the criteria had any teeth, they would have little effect, as the RED II exempts the overwhelming majority of biomass burned in the EU from meeting the criteria.”
The claimants are represented by Leigh Day solicitor Rowan Smith, who said:
“Our clients believe that the inclusion of forest biomass in the renewable energy allocations allowed under RED II is illogical and destructive. The burning of wood from forests, some of which have particular cultural significance, emits CO2 into the atmosphere and so militates against the objectives of RED II, which is meant to be an EU tool used to tackle the climate emergency not make it worse.
"Not only that, but our clients believe that the forest biomass industry, which the directive encourages, is a serious threat across Europe to both the survival of ancient woodlands from the felling of trees, as well as the protection of public health from the increased air pollution its industrial processes cause. They have the right for those arguments to be properly heard.”
Originally published by Leigh Day, July 2020
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