Coal lobby threatens to sue over EU clean air rules

Euracoal accuses the European Commission of using air pollution legislation to implement climate policy, in breach of procedural rules

EU air quality rules are expected to lead to mass coal plant closures (Pic: Flickr/John Mabbitt)


Tough air pollution limits for Europe’s coal plants announced on Monday could be engulfed in a firestorm of lawsuits and counter-suits, Climate Home has learned.

Under a European Commission review of permits, power generators must clean up health-harming emissions by mid-2021 or face closure.

According to the European Environmental Bureau (EEB), 82% of coal capacity expected to be operating in four years is currently in breach of the standards. Compliance could cost up to €15.4 billion.

Coal bosses are threatening to sue the European Commission over the move, citing “procedural irregularities”.

Green lawfirm Client Earth showed equal determination to make sure the laws are implemented, saying it “will not hesitate” to sue any coal plants that fail to comply.

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The legal manoeuvres follow a European committee vote in April, which approved new clean air standards by the narrowest of margins. Germany and Finland joined coal-dependent eastern European states Poland, the Czech Republic, Bulgaria, Hungary, Slovakia, and Romania in opposing the new rules, arguing that the proposed limits on nitrous oxide emissions were unreasonably stringent. But they were beaten in a “qualified majority” vote.

Euracoal, a coal trade association claimed that decision was “null and void” because of “procedural irregularities” in the vote, in a letter sent to the Commission on 31 May.

The missive, seen by Climate Home, is accompanied by detailed legal advice from the Freshfields Bruckhaus Deringer law firm, and was released under freedom of information rules.

Brian Ricketts, Euracoal’s secretary-general confirmed to Climate Home the lobby group was consulting its members about a lawsuit, describing the EU vote as “a vindictive move against coal” intended to meet international climate goals, rather than reduce air pollution.

He said: “The European Commission has abused process. That’s for sure. They tabled an amendment which no member states had seen, took a vote early in the meeting, and then had a discussion afterwards. The whole thing was rigged to knock out coal and meet the Paris [climate agreement] targets. That is not what the legislation is for.”

Ricketts referred to an email newsletter from the Commission saying the clean energy package “will be crucial for the implementation of the Paris Agreement“.

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While the Commission declined to formally comment on Euracoal’s threat, officials insisted protocols were followed correctly.

“No member states challenged the vote, or said it was void afterwards,” one EU source said. “An appeal period expired without objections, so there is nothing more we can do now.”

The new “best available techniques reference document” (Bref) mandates caps on nitrous oxides (Nox), sulphur dioxides (SO2) and particulate matter (PM) that the EEB says could prevent 20,000 premature deaths per year, mostly from respiratory disease.

Client Earth’s energy lawyer Dominique Doyle said: “Is it really practical to shell out millions to update a plant that may shut down almost as soon as it’s refurbished?” she asked.

“ClientEarth will be watching carefully to see how Europe’s plants comply,” she added. “We will not hesitate to take action if they try to shirk their legal responsibility to protect our health.”

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The new Brefs reflect a more lively and proactive approach by EU environment commissioner Karmenu Vella, who has pushed through ivory trade restrictions and a court action to protect Poland’s Bialowieza forest in the last few weeks.

But a legal arm wrestle over the emissions benchmark will test the resolve of EU states to police environmental pollution.

Twelve of the EU’s 27 countries already face European court action for breaching air quality limits, and nine have asked for permission to pollute above a cap that should have come into force in 2015.

“This is absolutely an issue,” Ricketts said. “If EU law becomes disregarded and disrespected then there is a problem that will lead to all sorts of uncertainty…

“My feeling is that countries will look for derogations – which are completely legal – but if you start to see them applied to the majority of plants, by definition they will no longer be derogations and the Commission would have to step in.”

All eyes will now be on the position that Germany takes after upcoming elections are out of the way. The country has pledged a 95% cut in emissions by 2050, but still depends on lignite for a quarter of its electricity.

Germany is expected to bring forward a coal phase-out plan in 2018.

Note: This article has been amended. It originally said Doyle had said the Paris Agreement was highly relevant to the future of the coal plants under the new rules.

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