Narrow room for manoeuvre under EU industrial regulation laws
SOURCE: CIWM, FEBRUARY 2010
A recent Opinion from the Advocate-General (A-G) to the European Court of Justice (ECJ) reinforces the strict and narrow interpretation that affects exceptions to EU environmental obligations. Although the case concerns the Large Combustion Plants Directive (LCPD) it has potential lessons for those seeking to take advantage of derogations under other directives.
The LCPD imposes stricter emissions controls certain on combustion plants, but it does not apply to combustion plants which “make direct use of the products of combustion in manufacturing processes”.
The plant in question is a coal-fired power station, the electricity from which is used almost entirely for the production of aluminium by molten-salt electrolysis in a neighbouring aluminium smelter. The A-G considered the use of the electricity in the aluminium process to be a direct use. But was the electricity a “product of combustion”?
The A-G said NO, it was not. Electricity was produced by a generator powered by steam resulting from the heat produced during combustion. Therefore, the electricity was only attributable to combustion in an indirect sense. To treat the electricity as a combustion product would mean interpreting the concept broadly to include “indirect” products of combustion, as opposed to only heat and reaction products arising directly from combustion.
Underpinning the reasoning was a very close inspection of the scheme of the LCPD’s various exceptions, which lead to the conclusion that environmental protection required a narrow and strict interpretation of the concept of “products of combustion”. It is possible that the ECJ may not agree, but it is unusual for them to depart from the Opinion of the A-G.
AUTHOR: VINCENT BROWN
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