20 February 2023
One of the EU’s biggest pieces of anti-pollution legislation is undergoing an overhaul. The law, which regulates emissions from around 50,000 industrial complexes across the EU, is set to be finalised this year – with discussions underway in the European Parliament and Council right now.
Unfortunately, the industrial lobby has a lot to say about it – and if officials let themselves be convinced by their arguments, the Industrial Emissions Directive (IED) is going to be powerless to protect people and nature like it’s designed to.
So what do EU lawmakers need to remember as the overhaul heads for crunch time?
What’s set to change in the new Industrial Emissions Directive?
Fossil fuel power plants, cement factories, factory farms – these are the types of facility that the IED regulates. It puts caps on harmful pollutants like mercury, sulphur dioxide and other carcinogenic heavy metals and chemicals. But it’s been a little too light-touch on industry in the past, allowing big exemptions or letting companies apply the loosest limits in the legal range – or ignore the caps entirely and swallow ineffectual fines instead.
The two big breakthroughs in the update to the law were set to be:
But these breakthroughs are being pushed back on.
Positive regulation – what’s not to love?
Industry lobbyists are insisting that a strong regulation could trigger “abusive litigation” by civil society. There are arguments over whether tighter limits are possible to meet (spoiler: they are), and whether greenhouse gas emissions should be governed by more than one law.
Alarmingly, these arguments have gained traction, despite being legally wrong.
So legislators need to keep the following key principles in mind over the next weeks when lobbying efforts will be at their highest.
The compensation right – the legal bit
ClientEarth has just commissioned a study on the proposed compensation right’s compatibility with existing national laws in EU Member States. The good news? It’s perfectly aligned.
This avenue for legal recourse when people’s health is harmed by ineffective regulation or enforcement is a crucial part of our democracy. A compensation right has also been proposed in the EU’s updated Ambient Air Quality Directive.
Till now, it has been nearly impossible for people suffering from illegal industrial pollution to claim compensation for the harm they suffer – mainly because it can be very difficult to prove a causal link between specific pollution arising from the IED breach and the health damage suffered.
But the new compensation right proposes an adapted burden of proof: victims of health damage that has stemmed from illegal industrial pollution can bring a compensation claim. They must connect the health damage and the IED breach, but from then on it’s then down to the operator to prove that the violation did not cause or contribute to the health damage, instead of the person harmed trying to prove that it did.
This approach has already been transposed into national law through other EU directives – including on laws around anti-discrimination and competition. And none of these have resulted in excessive litigation, as those opposing the new IED are trying to argue.
ClientEarth lawyer Bellinda Bartolucci said: “Right now, those living near a steel plant, chemicals facility or fossil fuel power plant that’s breaking the law can’t hold industrial operators accountable for damage to their health.
“This new study shows that EU law absolutely can be adapted to give protection to those victims of illegal industrial pollution."
Justice comes first – so polluters must pay
ClientEarth lawyer Madalina Popirtaru said: “Industry is there – in principle – to benefit humankind. But instead its toxic pollution is costing lives and health. Where is the sense in that?
“People and nature must not be the collateral damage of the industry that’s there to provide for us. This law needs strong pollution limits and a strong compensation right, to bring justice back to the people, where it belongs.”
Read the study here: British Institute of International and Comparative Law: Comparative study on the implementation into the national legislation of certain EU Member States of an adapted burden of proof in the context of the Industrial Emissions Directive