A win for science and reason: the Taxonomy Complementary Delegated Act survives its first challenge

​Quentin Heilmann, Legal Advisor, nucleareurope

There was little doubt that when the European Commission was officially asked by Non-Governmental Organizations (in this case Greenpeace) to withdraw its Taxonomy Complementary Delegated Act (CDA) – which added both nuclear and gas to the Sustainable Finance Taxonomy – the answer would be a clear no. But it is still worth taking a look at how the Commission has responded to this ‘Request for Internal Review’ (RIR), which is a procedure created by the Aarhus Regulation and represents a first step prior to potential legal proceedings.

This request is interesting for two main reasons. First of all, from a content perspective, it provides us with an insight into the Commission’s decision to include nuclear under the taxonomy. Secondly, and with regards to the process, as the entity that issued the RIR did not obtain a satisfactory response it is able to take the matter to the European Court of Justice (ECJ). It is now up to the ECJ to rule on the arguments put forward in the request and the response given by the Commission. This upcoming ruling will potentially also give an indication of how the ECJ will rule on the more important legal challenge put forward by the Austrian government against the CDA and the inclusion of nuclear and gas under the taxonomy.
I will now try to give you an overview of the most interesting parts of the Commission’s response and what it means for the future.

Some useful explanation

Repeat after me: 1 impact assessment, 2 impact assessments, 3 impact assessments, 4…
Before publication, legislative proposals put forward by the Commission usually go through an impact assessment (IA). According to Greenpeace, however, the multiple reports used to justify the integration of nuclear under the taxonomy were insufficient. They are therefore asking for the CDA to be annulled as they do not believe that it underwent an impact assessment. In its response to the RIR, the Commission rightfully stated that conducting an IA is not a binding requirement. Furthermore, the extensive assessment undertaken by the Joint Research Centre (JRC), the Scientific Committee on Health Environment and Emerging Risks (SCHEER) and the Article 31 Group of Experts (under the Euratom Treaty) meant that a “duplication in a separate impact assessment” was unnecessary. Three independent reports appear to be enough…

Do you have a minute to talk about the Euratom Treaty?

The Euratom Treaty is the foundation of EU nuclear policy. It is unfortunate that we do not hear about this treaty often enough and this apparently is a feeling shared by the NGO that introduced the request. Indeed, according to the RIR, because the CDA is not legally based on the Euratom Treaty, nuclear cannot be included. This argument was quickly rebuffed by the Commission which makes clear that “the promotion of nuclear energy is a key objective of the Euratom Treaty and therefore of the Union”. Nucleareurope can only agree with this!

The grass is definitely not greener on the other side.

Nucleareurope has always supported a technology neutral approach and is pleased to see this principle put forward in the response to the RIR. For instance, it is argued by the applicants that uranium mining ’causes significant harm’ to the pollution prevention requirement and therefore prevents nuclear from being classified as taxonomy compliant. The Commission’s response on this is very clear: “in many respects, uranium mining is much the same as any other metalliferous mining” (which many other taxonomy compliant sources depend on). As such, nuclear is being treated in the same way as these other technologies.
Another example relates to decommissioning and long-term radioactive waste disposal, where the request argues that the Commission did not take into consideration the environmental risks they may potentially pose. The response rightfully recalls the safety of disposal facilities and underlines that for some activities already included in the Taxonomy, “such as solar photovoltaics, there are currently no long-term waste solutions.”
Is that really something you want to be saying?
One might regret a lack of evidence in many anti-nuclear arguments and the request at stake is no exception. First of all, instead of using independent and trustworthy sources to back their claim, this request is mainly based on a report by a well-known anti-nuclear author (Becker). These references clearly did not convince the Commission, which argues that they stand “in contrast to the dozens of studies on which data by the IPCC, UNECE, IEA and other international organisations are based. The Commission relied on the latter data” . Secondly, the request puts forward statements, without providing any scientific evidence to back them up. For example, the applicant makes reference to “severe technology-related hazards” which the Commission itself notes that they “failed to specify.”
The Commission was equally unconvinced by the “unclear” mention of nuclear as the “most severe pollutant in the energy sector.” The conclusion of this is, if you do not have any arguments to back up your claim, it is better not to say anything at all.

Why we need nuclear energy!

On several occasions the Commission outlines the many benefits of nuclear energy, noting that “an electricity system with 100% renewable energy sources is not possible with current knowledge and technologies” and that “nuclear energy facilitates grid stability and thus, higher absorption of renewable energy sources.”
In addition, the Commission indicates that nuclear does not only contribute to climate change mitigation but also to climate change adaptation as “the risk of extreme weather events leads to the necessity to increase low-carbon electricity production (rather than avoiding technologies such as nuclear energy).”

Nuclear + Science = Sustainable

Whilst we are still waiting for the ECJ to rule on this case, there are two interesting outcomes.
First of all, the Commission has come out in defence of nuclear and, on this occasion, focused on the science, which for me – and nucleareurope – is very positive.
Secondly, the fact that the only NGO attacking the inclusion of nuclear is Greenpeace. This article focuses only on one RIR, but there is actually a second one put forward by a group of NGOs (including WWF and Transport & Environment). This second RIR only attacks the inclusion of gas, and not nuclear. As to what is actually behind this decision, it is anybody’s guess.