Article 42(1) of the Industrial Emissions Directive: The Unfortunate Consequence of the Lahti Energia Oy Judgment

Summary

ABSTRACT

This chapter focuses on Article 42(1) of the Industrial Emissions Directive and its application to producer gas. Given the potential benefits to be reaped from the use of high-efficiency waste-to-energy conversion, it is paradoxical that the current regulatory framework is not aligned to support this activity. Article 42(1) was added to the Industrial Emissions Directive following the judgment of the Court of Justice of the European Union in C-317/07, Lahti Energia Oy. It provides that:

’1. This Chapter shall apply to waste incineration plants and waste co-incineration plants which incinerate or co-incinerate solid or liquid waste.

This Chapter shall not apply to gasification or pyrolysis plants, if the gases resulting from this thermal treatment of waste are purified to such an extent that they are no longer a waste prior to their incineration and they can cause emissions no higher than those resulting from the burning of natural gas.’

While interpretation of Article 42(1) might at the outset be considered quite simple and straightforward, a more careful examination shows: (1) that this provision is in fact difficult to interpret and, as a result, fails to provide for legal certainty for the economic operators in this area; and (2) that it is fundamentally flawed in its rationale.

INTRODUCTION

‘The gasification of waste on this scale has not been used anywhere in the world prior to this project. Its commercialisation would provide a more efficient option for wasteto- energy plants in the EU’.

This quote from the Competition Commissioner Joaqu í n Almunia in the context of a positive State aid decision from the European Commission for a waste gasification plant in Lahti, Finland (Kymij ä rvi II project), suggest the obvious – the gasification of waste supports both EU energy and environmental goals. In that case, the European Commission assessed the measure under the EU environmental aid guidelines and found that:

’gasification allows for a cleaner and more efficient recovery of energy from waste than traditional techniques. In particular, it allows for a more efficient generation of energy and a better power-to-heat ratio.