A group of civil society organisations have launched legal action against the European Commission for the inclusion of gas and nuclear in the EU guidelines for sustainable investment, the so-called EU taxonomy.
The taxonomy, controversially adopted before the summer, includes certain investments in gas and nuclear included under the category of “transitional economic activities”.
But ClientEarth, the European branch of WWF, Transport & Environment (T&E), and BUND (Friends of the Earth Germany) argue that the inclusion of gas clashes with the EU Climate Law and the Taxonomy Regulation itself as well as international commitments under the 2015 Paris Agreement.
“Propping up gas, a fossil fuel which is currently at the centre of a cost of living crisis across the bloc, undermines the EU’s fundamental aims of achieving cleaner, cheaper and more secure energy,” a spokesperson said on behalf of all the organisations.
The NGOs said they lack the technical and legal expertise to challenge the inclusion of nuclear projects in the taxonomy.
But Greenpeace also announced on Monday (19 September) separate legal action against the commission over their green financing rules — arguing against the inclusion of both gas and nuclear.
Roda Verheyen, a German lawyer specialising in environmental and international law who helped the NGO in previous climate litigation against Germany’s Climate Action Law, is working in the case initiated by Greenpeace.
Verheyen argues that the inclusion of nuclear and gas is in “stark contrast” with the actual EU taxonomy regulation.
“Nuclear makes no sense at any level” and “there is clearly a non-scientific way of defining the types of gas projects that should be included in line with climate policies,” she told EUobserver.
Scientists from the commission expert group concluded that for gas power plants a threshold of 100g CO2e/kWh of electricity should be applied to be compatible with a 1.5°C pathway under the Paris Agreement.
But under the proposal, instead, gas power plants would be taxonomy-compliant if their emissions are lower than 270g CO2e/kWh of electricity.
As legal procedures could go into late 2023, it is likely that the EU taxonomy will enter into force before the court issues its final ruling.
“If we win this case, I wonder how the commission is ever going to explain that to the global financial markets,” Verheyen said. “This is a matter of reputation”.
February deadline
Under EU law, NGOs have the right to ask EU institutions to assess their own decisions — with a right to appeal before the EU’s top court.
Greenpeace sent a formal request for internal review to the commission in September, pointing out legal issues and asking them to revoke the decision.
In their 171-page request document, which includes experts’ opinions, they also argued that the inclusion of gas and nuclear in the taxonomy violates several EU laws and the Paris Agreement.
The environmental groups were unable to file such a revision request before September given administrative procedures, Greenpeace told EUobserver.
The Commission has now until February to respond to Greenpeace’s and the other NGOs’ arguments. If they maintain the green labels for gas and nuclear projects in the taxonomy as it stands, the groups will take the case to the European Court of Justice.
“The greenwashing of fossil gas and nuclear was politically motivated from the beginning, but that won’t help the European Commission in court,” said Ariadna Rodrigo, a campaigner at Greenpeace.
The taxonomy has triggered discontent not only among environmentalists but also among some EU member states who have vowed to sue the EU executive over the inclusion of gas and nuclear.
Austria is expected to launch legal action over the inclusion of nuclear in the taxonomy before the end of October. “That is definitely happening,” an Austrian official told EUobserver.
Luxembourg, for its part, previously said it will support legal action to be initiated by Vienna.
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