»EU Environment Omnibus » simplifying environmental law
Improving implementation, speeding up procedures, reducing the burden on businesses
Europe must now take the express bus – making environmental law leaner, simpler and more efficient
Trust-based regulation for greater personal responsibility on the part of project operators
A culture of mistrust towards industry is spreading in the EU. European legislators have little confidence in companies; everything is regulated and controlled down to the last detail. Companies have to spend more and more time fulfilling reporting and documentation obligations, complying with regulatory requirements and adapting to new regulations. The culture of mistrust towards business must urgently give way to trust-based regulation. Trust-based regulation should provide a framework that allows companies to act on their own responsibility, thereby strengthening them and creating more opportunities for growth.
The European Commission has announced plans to make Europe more sustainable, innovative, competitive, resilient and independent. Existing and new regulations are to be simplified and bureaucratic hurdles removed. These simplification measures are to be implemented in a series of omnibus proposals. These announcements are a step in the right direction: streamlining regulations, reducing unnecessary costs and burdens and making EU rules more efficient are essential first steps to foster innovation and strengthen Europe's industrial base while maintaining our high principles and standards.
European businesses are calling for the EU legal framework, in particular European environmental law, to be adapted to the realities of global competition. This means adapting European legislation where necessary to the standards of our competitors, while ensuring that compromises remain possible. Simplified and streamlined rules will make it easier for companies to comply with regulations and achieve Europe's ambitious economic and environmental goals without unnecessary red tape.
1. Regulation on the restoration of nature/Natura 2000
The Natura 2000 directives need to be revised and adapted to today's requirements. There is no need to relax nature conservation standards. However, significant improvements are possible and necessary in order to reduce reporting requirements for industrial operators, e.g. a differentiation between common species and rare species, strengthening of population protection, creation of larger and contiguous but not spatially connected compensation areas, and using industrial wasteland with the help of temporary nature conservation regulations. In addition, standards/conventions must be developed with all stakeholders to prevent excessive expert reports.
2. Soil Monitoring Directive
The usability of soil for economic purposes, for the cultivation of food, for the extraction of raw materials and for settlements and transport areas must not be marginalised and, in the near future, only be permissible in exceptional cases for reasons of soil protection.
The core demands of the BDI have not been met by the trilogue outcome on the Soil Monitoring Law (SML). This trilogue outcome will lead to additional bureaucratic obstacles for planning and permitting procedures relating to land use. This will affect not only the raw materials industry, but all industries that use the soil. It should also be noted that Germany already has functioning soil protection legislation and that each EU Member State is authorised to create its own soil protection legislation. For reasons of subsidiarity, there is also no compelling reason to create EU legislation on soil protection, as soil is not generally used across borders. It is therefore not apparent that the SML will lead to significant environmental benefits. What is certain, however, is that an SML will lead to further bureaucratic obstacles and weaken rather than strengthen the EU's competitiveness.
Against this background, we are in favour of suspending or discontinuing the legislative process on the EU Soil Monitoring Law. In this context, we expressly support the German Federal Government's rejection of the SML.
3. Industrial Emissions Directive (IED)
The new IED will result in considerable additional financial costs and red tape for operators of industrial installations. However, investment must not be made more difficult and the necessary transformation of the economy towards climate neutrality must not be delayed. In this respect, the provisions of the Industrial Emissions Directive should be revised again.
• The additional IED environmental management system, including a chemical inventory and transformation plan, should be deleted again. This creates considerable additional bureaucracy and duplicate regulations without any discernible benefit for the environment. (Art. 14a IED new)
• A standard setting of limit values at the lower end of the BAT ranges is rejected (Article 15(3) new). Not all processes can comply with the lower value for every parameter. This requirement is likely to overwhelm many plant operators and accelerate the relocation of production to countries outside Europe.
• Exemptions from limit values must be extended. Existing exemptions must be reviewed to ensure that the barriers to their application are not too high. Annex II of the IED on the application of Article 15(1) IED, for example, effectively prevents exemptions from being granted.
• Environmental performance limit values, for example on consumption values, resource efficiency, water and energy consumption and waste quantities, should be deleted again (Article 15(3a) new). The regulation of environmental performance values in the IED means double regulation.
• The baseline report for soil and groundwater entails considerable costs and bureaucracy for operators. This should be deleted.
4. Directive on the reduction of national emissions of certain atmospheric pollutants (NEC Directive)
The Federation of German Industries believes that the NEC Directive (EU/2016/2284) is no longer necessary with regard to the contribution of industrial sources (including energy production) to air pollutant emissions. It should therefore be abolished or not extended. The recently amended directives on industrial emissions and air quality set very ambitious targets for the EU and are sufficient to ensure a high level of protection for people and the environment. In addition, the NEC Directive is no longer necessary. This proposal is also in line with the EU Commission President's commitment to simplify and reduce bureaucracy in EU law.
5. EU Air Quality Directive
The new and significantly lower limits in the EU Air Quality Directive should only apply after an appropriate transition period, starting in 2040 at the earliest, as compliance with the limits by 2030 is unrealistic given the actual levels of pollution in Europe. This would also be more in line with other EU regulatory plans, particularly in the areas of climate protection and transport. The significant impact of the proposed limits on industry – especially on numerous small and medium-sized enterprises – as well as on commerce, mobility and housing can only be managed by European society with long and sufficient transition periods.
6.
Remove time limits and extend emergency regulation
The EU emergency regulation adopted in 2022 and now extended until 2025 allows EU member states to grant exemptions in the areas of species protection and environmental impact assessments (EIA), which significantly accelerate projects. The EU should not only lift the time limit on the emergency regulation, but also extend its scope to include all projects that contribute to achieving climate protection goals and reduce reporting requirements.
7. REACH Regulation
In the upcoming revision of the REACH Regulation, risk-based regulation of chemicals must be maintained and strengthened The focus of the revision must be clearly on simplifying regulations and
reducing the burden on businesses. Generic approaches and blanket substance regulations do not simplify matters for the economy, but rather entail additional burdens and restrictions on the urgently needed availability of substances. In particular, the industry believes that there is room for improvement in the REACH authorisation and restriction procedure, but that this could be achieved within the existing legal framework For example, the authorisation procedure should be adapted and simplified. Deadlines and processes must be set in such a way that the effort involved remains manageable and companies have a sufficiently high degree of planning security. Additional measures must not lead to the creation of further bureaucratic hurdles. New or extended reporting or registration requirements must be avoided.
8. Water Framework Directive (WFD)
The implementation of the Water Framework Directive (WFD) now requires very lengthy preparations and studies by project developers. There is considerable uncertainty regarding the achievement of the 2027 targets, particularly in view of the deviating management objectives and exemptions provided for in the WFD. The introduction of at least three further management cycles, a practical definition of the prohibition of deterioration and an appropriate extension of the possibilities for derogations and exemptions within the framework of the existing provisions of the Water Framework Directive would contribute significantly to a reduction in reporting obligations.
• Extension of the deadline (Article 4 par. 4 (c) WFD)
Under the current WFD, good ecological and chemical (and, in the case of groundwater, also quantitative) status must be achieved for all water bodies by 2015. According to Article 4 par.4 (c) WFD, this deadline can only be extended by two management plan cycles, i.e. until 2021 or 2027. However, numerous water bodies are still in poor condition today (in Germany, for example, 100% of surface waters) and are not expected to achieve good status by 2027. The target cannot be achieved if existing industrial and infrastructural activities with an impact on water bodies are to be continued beyond this date in a legally compliant manner. However, it must be possible to continue these activities. Article 4 par.4 (c) of the WFD should therefore be amended to allow Member States to extend the deadline for achieving the objectives by three further WFD cycles (i.e. until 2033, 2039 or 2045) where necessary.
• Prohibition of deterioration (Article 4 par.1 (a)(i) and (b)(i) WFD)
Not every minimal impact on a single quality component or environmental quality standard constitutes a fundamentally prohibited deterioration, regardless of the overall environmental balance, as assumed by the ECJ (Weser deepening ruling) and the Federal Administrative Court (Staudinger ruling, Elbe deepening ruling). It is therefore necessary to include in the definitions in Article 2 of the WFD a practical, proportionate and non-discriminatory definition of the term "deterioration" that allows for an integrated assessment of the environmental balance. To date, the WFD does not contain any definition of deterioration, even though this is a central legal concept of the WFD.
'Deterioration of the status of a body of water' means only the lowering of the status of at least one of the quality elements, within the meaning of Annex V to this Directive, by one class, if that lowering results in a fall in the classification of the body of water as a whole.
• Derogations from management objectives (Article 4 par.5 WFD)
The instrument of setting deviating objectives must be able to play its intended role in exercising planning discretion in management, taking into account socio-economic aspects, local hydrogeological and anthropogenic conditions and water protection concerns in accordance with the principle of sustainability. This instrument has been used very little to date and only with considerable legal uncertainty. This is due in particular to the fact that Article 4 par.5 (c) of the WFD requires, among other things, that further deterioration be avoided. However, it is contradictory that the WFD makes a derogation from the strict objective of preventing deterioration dependent on avoiding further deterioration. This contradictory requirement (avoiding further deterioration) for setting different management objectives, currently laid down in Article 4 par.5 (c) of the WFD, should therefore be deleted.
• Exceptions to the management objectives (Article 4 par. 7 of the WFD)
All industrial, infrastructural and other human activities with an impact on water bodies are subject to the strict objectives of non-deterioration and the requirement for improvement. This creates a number of largely investment-inhibiting and inappropriate uncertainties about the possibilities for continuing these activities beyond 2027 (see above), even if these projects are to be continued in a reduced form (see BVerwG ruling on the Staudinger power plant of 2 November 2017). In many cases, it will therefore be all the more important to rely on the exemption clause to ensure that projects relating to surface water or groundwater can continue. However, Article 4 par.7 of the WFD limits this to a few specific cases. It is therefore urgently necessary to amend the wording of the WFD exemption in Article 4 par.7 WFD so that its scope is extended to all activities relating to water that are subject to the strict objectives of the WFD. This means, in particular, that an exemption must in principle also be permissible if
- the good chemical status is not achieved or
- it concerns deterioration and failure to achieve objectives due to pollutant inputs that are not considered to be new changes in the physical characteristics of the water or in the groundwater level.
No activity related to water that is subject to the strict objectives of the Water Framework Directive may be excluded from the scope of the exemption from the outset.
9. Environmental Impact Assessment Directive (EIA Directive)
The Environmental Impact Assessment Directive (EIA Directive) should be streamlined. The projects subject to EIA and the circumstances requiring preliminary assessment should be significantly reduced and thresholds raised. Changes to installations should only be subject to EIA if they exceed certain materiality thresholds. The scope and depth of the assessment must be reduced (Article 5 and Annex IV) Furthermore, it should be stipulated, for example, that an environmental impact assessment is not required for permits under the EU Industrial Emissions Directive (IED). This would significantly simplify and accelerate the procedures concerned. Permits under the IED are cross-media permits, where the impact on the protected assets of the EIA Directive is often already considered extensively. In addition, duplication with other directives should be avoided. For example, the same projects should not have to be assessed under both the SEA and EIA Directives.
10. Ecodesign Regulation
With a few exceptions, the new Ecodesign Regulation is intended to cover almost all products in order to make them more environmentally and climate friendly. To implement this, the Commission will adopt product-specific delegated acts in the coming years. This will involve considerable effort and a comprehensive intervention in internal company processes. The companies affected must therefore be sufficiently involved in the drafting process to enable feasible and effective design specifications for products
11.Methane Regulation
As part of an omnibus package on environmental law, the EU Methane Regulation should also be made more practical in view of the extensive measurement and reporting requirements. Among other things, the Regulation requires operators of lignite mines to determine methane emission factors for their mines on a quarterly basis, even though lignite seams contain hardly any methane due to geological conditions. In the interests of an appropriate and proportionate solution, we therefore propose refraining from determining methane emission factors on a quarterly basis and instead determining them annually.
The EU Methane Regulation also contains complex measurement, quantification and reporting requirements for underground coal mining and the oil and gas sector, which should be simplified. For example, simplifications could be made in Article 14, as the requirements for leak detection and repair (LDAR) are one of the most labour-intensive areas of the Regulation. Article 15 par.6 could also be deleted or revised to allow economic considerations to be taken into account when assessing the reasonableness of alternatives to flaring or venting methane.
In addition, the partly extraterritorial requirements of the Regulation pose major problems for the importers concerned. In addition to bureaucracy, there are compliance risks if actors outside the EU cannot trace the products back to their source (crude oil usually changes hands several times between the production site and the refinery) or do not want to disclose the relevant data. An omnibus procedure should therefore create more legal certainty, waive the requirement for molecule-specific traceability (e.g. by using specific emission values for each country of supply) and extend implementation deadlines.
Imprint
Federation of German Industries (BDI)
Breite Straße 29, 10178 Berlin www.bdi.eu
T: +49 30 2028-0
German Lobbyregister Number: R000534
EU Transparency Register: 1771817758-48
Editorial Team
Annette Giersch
Deputy Head of Department Environment, Technology and Sustainability
T: +49 30 2028-1608
A.Giersch@bdi.eu
Uta Maria Pfeiffer
Head of Department Environment, Technology and Sustainability
T: +49 30 2028-1436
U.Pfeiffer@bdi.eu
BDI Document number: D2104