Written by Leigh Hancher
In the first two contributions on this topic of the month – ‘Going Greener’ I looked at some of the legal dos and don’ts for promoting renewable (RES) energy in electricity generation. The RES Directive of 2009 also set a binding sub- target for the transport sector of 10% from renewable sources 10% by 2020. This target (as well as the sub target for heat and cooling) is often overlooked. While many Member States claim to be well on the road to meeting their RES targets for electricity production few can assert that they are likely to meet the 10% transport target. When counting progress on this target, certain RES sources count more than others; for instance, energy from some biofuels is counted at double the amount actually produced. But these ‘multiplied rewards’ don’t count towards the target for all energy.
The UK – considered to be one of the leaders in the field- is likely to achieve a switch to green fuels for transport of only 4% by 2020. Although heavily subsidized in some Member States, electric vehicle penetration across Europe is very low and without a reliable charging infrastructure – especially in rural areas – the share of EVs is not predicted to grow rapidly. But are there any real sanctions if by 2020 these targets are not met? And what happens after 2020?
The 2020 RES targets – including the 10% sub target for transport are national and are binding on the Member States but after 2020 the target of a 27% share for renewable energy by 2030 is an EU- wide one only. It is not binding at national level. The share (or sub target) of RES in transport in this ‘at least 27%‘ target is also not yet clear. A Commission assessment from 2014 estimated that achieving the agreed 2030 framework objectives would require a contribution of 14-16% renewable energy in transport. This would require measures to be put in place to encourage an increased market up-take and deployment of sustainable low-carbon biofuels and alternative renewable fuels as well as renewable electricity in battery electric vehicles and hydrogen in fuel cell vehicles. These would be national measures but despite the progress made with regard to the development of alternative renewable fuels such as advanced biofuels and renewable fuels of non-organic origin, commercial deployment of such products in the EU is lagging behind.
One of the main reasons for overall lack of progress on greening transport is the perceived uncertainty about the policy framework after 2020. Only a few Member States have adopted dedicated support measures for advanced biofuels, while most have focussed on more traditional biofuels. The potential for electric transport using renewable electricity deployment is still untapped, due to s high technology costs of deployment and lack of necessary infrastructure.
So there is an overall deficit in measures to support alternative fuels but this should also be seen in the context of the persistent and distortive effects of massive fossil fuel subsidies not only in the EU but world-wide. Without a clear target and a robust regulatory framework in place for the period after 2020 it is very difficult to expect that many member States will make much-needed progress on the greening of their transport sectors. As for the EU-wide target – even if a sub- target for transport is included in the overall 27% target it entirely depends on the ambitions of the Member States and without any enforcement powers for the EU in the future, that target is unlikely to be reached.
But what happens in the meantime to Member States who miss the mandatory 10% target for 2020? The RES Directive describes the 10% target as ‘mandatory’. However, the Directive does not include a standalone mechanism for imposing sanctions on countries that fail to meet their targets. The European Commission has a general power to take legal action against member states that don’t fulfil their obligations under EU law. It has already done so in the case of countries failing to take various steps required by the Directive including the submission of national renewable energy plans. Further companies and individuals can rely on these mandatory targets in national litigation and require national compliance. So some legal action before 2020 on the transport target cannot be ruled out.
But enforcing the new 2030 targets is a different matter. The target is only binding on the EU. The Commission is the guardian of the EU law and its proper implementation so it is difficult to imagine how it might police itself. The revised RES Directive may include an obligation on the Member States to set themselves an indicative target and to submit a National Action Plan. But without concrete obligations on the Member States, the European Commission (and indeed any other party) can do little to make them contribute to the achievement of the binding EU level target. As the EU lacks its own financial means, it hard to see how the binding EU –wide target can be reached without “using” the Member States. Given their failure to make progress on the 10% sub-target for green transport so far, national contributions to greening transport after 2020 cannot be assured.
 The heating and cooling sector represents almost half of the EU energy consumption. The sector remains dominated by fossil fuels and therefore dependent on imports.
 Estimated by IMF to be 330 Billion Euro in 2015, source: http://www.imf.org/external/pubs/ft/survey/so/2015/new070215a.htm