IED review may bring justice to affected citizens

The proposal for the review of the Industrial Emissions Directive (IED) reveals several improvements, but there are also serious flaws when it comes to reporting and adapting to climate targets.

On 5 April, the European Commission presented its proposal to amend the Industrial Emissions Directive. There are some significant steps in the right direction. Two of the most important are that human health impacts are acknowledged, and that the polluter-pays principle is strengthened. There are also improvements in access to justice for the public and civil society, including a compensation right for citizens. Sanctions have also been strengthened. Bellinda Bartolucci, lawyer at ClientEarth welcomes this in particular:
“Thousands of people live in the impact radius of industrial installations all over Europe, and to date have been powerless to push back or claim reparations for the harm they suffer if these installations break the law. That’s changed now – the new compensation right in the revised IED is a revelatory solution. We should be seeing more of this in the next generation of EU laws.”

The proposal also includes other polluting sectors previously not included, such as cattle, and a lowering of the threshold for livestock units. Under current legislation, about 20,000 farms with pigs and poultry are subject to a permitting regime. If the proposal is passed that number will increase to 185,000, which corresponds to 13% of the EU’s largest livestock farms. The Commission says that they are responsible for 60% of the EU livestock emissions of ammonia and 43% of methane. Another improvement in the agricultural sector is that Best Available Technique (BAT) will also apply to the spreading of agricultural waste (such as manure).

Some major shortcomings in the IED are listed by various NGOs in Europe. One serious remark is that the proposal has not been aligned with EU climate legislation. Article 9 (1) would need to be deleted to live up to Europe’s growth strategy to ensure a climate-neutral, clean, and circular economy by 2050. The new geopolitical and energy market reality requires faster implementation of the clean energy transition to reduce Europe’s energy dependence on unreliable suppliers and volatile fossil fuels and live up to its goal of decarbonisation.

The Annex V, which lists technical requirements for large combustion plants, is currently also seen as outdated by civil society stakeholders and would need to be amended to achieve EU climate ambitions. The IED should be amended in order to meet the ambition of phasing out coal combustion by 2027 at the latest and fossil gas combustion by 2035.
Furthermore, IED needs to move beyond the scope and mindset of the nineties, when pollution was mainly tackled using end-of-pipe solutions, instead of incentivising system change. For example, for energy industries, the scope includes sub-activities from highly polluting (fossil-based) energy industries, including thermal combustion plants above a certain thermal capacity threshold. Instead, the directive could have defined the BAT for producing the end product, which in this case is energy (electricity, heat, or mechanical energy). At the end of the day, it is the energy or steel that we will use and if there are smarter ways to produce it without externalities, such as pollution, this should be what we strive for. It might no longer be competitive, acceptable, nor economically sound, to promote incremental improvements at the end-of-pipe level only, when a faster and deeper transition in production methods is required. This transition also requires a more efficient strategy for the polluter-pays principle. Currently, the European Environment Agency estimates the costs of air pollution from industrial activities in Europe at over 400 billion euro, while the European Court of Auditors recently confirmed that just 3% of industrial pollution is taxed.

Bringing in a lifecycle perspective for production, such as including upstream activities for oil and gas, is currently still lacking in the IED proposal. The massive electrification programme underway in the EU to reduce the use of internal combustion engines will require batteries and it is positive that the extraction and treatment of non-energy minerals has been included, such as the manufacture of lithium-ion batteries with a capacity exceeding 3.5 GWh per year. However, it is unclear why this was raised from the initial 2.5G Wh pr year at the last moment.

Civil society also highlighted that it is time for the reporting of the environmental impact of industry in the Pollutant Release and Transfer Register (“the E-PRTR Regulation”) to join the digital age, which would allow for faster reporting and access to information. Under the current situation, reporting of data has lagged by about two years. Joze Roth from EEB believes that “better IT tools at EU level could strengthen progress tracking and benchmarking on environmental performance”.

The IED is an important EU instrument for preventing pollution at source and could have the potential for the EU to live up to its Zero Pollution Ambition. Installations regulated by the IED account for about 20% of the EU’s overall emissions into the air, around 20%, into water and approximately 40% of greenhouse gas (GHG) emissions.

The 2020 evaluation of the IED concluded that it was generally effective in preventing emissions into air, water, and soil and by promoting the use of best available techniques (BAT). However, it had made limited contributions to decarbonisation and a circular economy. Another issue found in the 2020 evaluation was the varying levels of ambition for implementation across member states, preventing the IED from delivering on its objectives to create a level playing field among member states and for the population to breathe clean air. The IED failed to deliver on its goal to support the polluter-pays principle, according to the European Court of Auditors. The EU also had to review the IED to live up to its European Green Deal objectives of reaching carbon neutrality, increased energy efficiency, a non-toxic environment, a circular economy and the 2030 Agenda for Sustainable Development and its Sustainable Development Goals.

Ebba Malmqvist & Kajsa Pira

Link to IED proposal: https://ec.europa.eu/environment/publications/proposal-revision-industri...
Link to NGO comments:
https://caneurope.org/joint-civil-society-statement-on-the-revision-of-e...
https://eeb.org/new-eu-laws-on-industrial-pollution-not-fit-for-zero-pol...