Melina Malafry

From conflict to coordination of energy and environmental law

After having studied law at Uppsala University Melina moved to Canada for two years to finish her studies. Back in Uppsala she met Professor Gabriel Michanek and was offered a three-month research project in environmental law funded by STandUP for Energy. She then started the PhD-studies officially in 2011 when she eventually received funding from Swedish Energy Agency in 2011.

The legal perspective plays an important role

The legal perspective has an important role to play in the transition of the energy system to contain a larger share of renewable energy sources. The legal system can be compared to a control system that both can facilitate for renewable energy production and prevent the expansion if it is not within ecologically sustainable limits. One problem is that the goal with EU´s energy directives, such as the Renewable Energy Directive,  often is considered to be in conflict with the directives that protects biodiversity and other nature conservation values. This has consequences in the permit and planning processes. Melina´s research focuses on investigating how environmental and energy law is interacting on different levels.

-One part of my research is about how the different EU-directives, in the field of environment and energy law, works in parallel. In energy law there are a large number of directives  that sometimes has conflicting goals, such as the Emission Trading Scheme Directive and the Energy Efficiency Directive. This lack of coordination has of course consequences, Melina says.

There really should not exist any conflicts between the different directives but in reality there are conflicts when these are to be implemented on a national level.  In Sweden it is explicitly expressed in the non-legally binding environmental goals, that we should have living lakes and streams, rich plant and animal life, and reduced climate impact . This means that renewable energy production should not be expanded to such an extent that the biological diversity is at risk.

-One example of when conflicting directives has clear consequences is within wind power where Sweden has political ambitions to expand capacity up to 30 TWh until 2020. This huge expansion could mean that we will have wind power mills in areas where the wind conditions are good but also where there are nature conservation values protected by the EU´s bird and habitat directive. This can be the case if, for example, important bird species emigrate that way, says Melina.

The Sjiskja Case

The Sjiskja Case is an example of when a wind power mill is placed in a Natura 2000 site, that is protected by the EU´s Habitat Directive. After a request from the Municipal Council  the government assessed the permissibility of the wind power plant. The government found that it was permissible and handed over the permit assessment to the Environmental Court. The government´s assessment was questioned by the general public and environmental organizations since it was not clear from the government decision how the wind power plant would affect the conservation values in the area.

The problem in the Sjisjka Case was that since the government had already made a permissibility decision, the Environmetnal Court  could not depart from this decision. The court could only review the conditions given within the permit, but not reconsider the questions already assessed by the government.Even if the Environmental Court would have found that a permit should not have been granted, since the activity would have had too much impact on nature conservation values, it was considered obliged to grant the applicant a permit.

-The significance of permissibility decisions has been partly changed after the Supreme Court’s decision in the Nordkalk case at Gotland. This decision means that even though the government or the Environmental Court has decided that an activity is permissible the instance that should assess the permit question shall do their own comprehensive assessment, even if some of the questions already has been assessed in the permissibility decision. The result in the Sjisjka Case was that the applicant was granted the permission as the Environmental Court considered that they had to grant the permit as the activity had already been assessed as permissible. If you look at how the specific regulation about Natura 2000-sites, is formulated, then it is unlikely that the activity in Sjiskja should have been granted a permit since it was not showed whether the nature conservation values in the area would be affected or not, says Melina.

Fragmentation Causes a Slow Process

Many of the cases related to wind power take a rather long time to be processed by the court. This is mainly because of that the environmental impact assessment and other administrative steps tend to take some time, in addition to court appeals that occur because of conflicting interests. If the legal issues were dealt with earlier in the process, at the planning stage, before application is submitted to the court, then it would potentially save both time and money for energy companies that want to invest in renewables.

–  In my research I argue that one of the reasons why the processes become rather tedious is that the environmental goals are not sufficiently integrated in the energy directives. This is something that the EU has to do in line with the Treaty of the Functioning of the European Union (TFEU) which regulates how the EU should create it´s policies. The Swedish biodiversity goal is not as politically hot so from the legal assessments that are made today the goal of increased renewable energy production is sometimes argued to be more important. One example is how small scale hydro power is treated in the electricity certificate system, says Melina.

-I believe that it has to be clarified how the Renewable Energy Directive relates to the nature conservation directives. If this is done I think that the confusion, that often is apparent in the legal procedures, can be dispelled, says Melina.

Melina also emphasizes that it is important to have a good public participation at an early stage in the process. This possibility exist today but is not fully used. There is a need for another planning system to integrate this at an earlier stage in the process.

-Hopefully an early public hearing can result in a good solution where all parties are aware about which regulations applies already at an early stage. Then maybe it would be easier to choose a location for wind power installations that has less impact on nature but that also gives a profitable production. Hopefully such process will create a solution where all parties are more satisfied than today, says Melina.

Future Research

At the moment Melina is focused on research about the relationship between renewable electricity production and its access to the grid. One of the legal questions here is if it is possible to guarantee (or prioritize) access to the grid for electricity produced from renewable sources, which the EU-law requires.

-This is a future challenge especially considering how many wind power companies that are planning for production facilities in northern Sweden. This is a part of the country that today has a lot of production from hydro power and also has limited capacity on the electrical grids. Here we have a possibility to plan the energy system more efficiently than today, says Melina.