Energy and Climate Change CommitteeWritten evidence submitted by Alan Seatter, European Commission

Thank you for your letter of 18 March 2013. I apologise for the delay in responding. I would of course be happy to meet with members of the Committee if they are visiting Brussels in the first part of July and I will make the necessary arrangements once the Committee has finalised the dates and areas of interest for discussion.

With regard to the additional questions you pose in follow up to my evidence to the committee on the Severn Barrage inquiry, you ask for further information on what considerations the Commission takes into account in judging whether in fact the benefits of a particular project are outweighed by the environmental harm caused.

As I explained in my oral evidence, an opinion of the Commission is only required in very specific circumstances. However, as Mr Gardiner MP rightly pointed out, the matter may still be brought to the attention of the Commission through a formal complaint or through a petition to the Petitions Committee of the European Parliament in which case the Commission would be required to assess any claims that a potential breach of EU legislation may have occurred. In such a case, the Commission would assess the steps followed by the Member State and measure these against the requirements set out in the Directive.

The first question would be whether an adequate appropriate assessment has been undertaken which fully assessed the likely significant effects of the proposed project on the species and habitats for which the sites have been designated and their effects on the conservation objectives for the site. This should include an assessment of any mitigation measures designed into the project and their impacts on lessening or reducing any negative impacts. If, in spite of the mitigation measures, a negative assessment of the implications for the site cannot be avoided the next step is to consider alternative solutions. In the case of a large renewable energy project damaging a site, the question whether the same effect could be reached by other less damaging projects would need to be considered. It rests with the competent national authorities to assess whether reasonable alternative solutions exist, for example relocating the same project elsewhere, reducing its scale or using other energy generating systems. There would need to be a realistic assessment of these. If there are deemed to be no reasonable alternatives, which are less damaging, the imperative reasons of overriding public interest (IROPI) would need to be assessed. What is expected here is that the importance of the public interest is weighed against the severity of the impact on the site. Is the public interest truly overriding? If so, the Member State must then show that it has taken all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected and inform the Commission of these measures.1 The compensation measures are independent of the project and aim to offset the negative effects identified. Typically that would be re-creation or restoration of habitat types or habitats for species that have been affected. The compensatory measures should aim to address, in comparable proportions, the habitats and species negatively affected and to provide functions comparable to those which had justified the selection criteria of the original site, particularly the adequate geographical distribution. In assessing the process followed by the Member State, the issue of the scientific underpinning of the assessment would be very important, in particular the availability of baseline data and monitoring of the habitats and species concerned.

In your second question you ask whether IROPI could potentially be applied to all developments which involve climate change mitigation. The answer to this question is clearly yes. However, this does not mean that all such projects would automatically be of a sufficiently overriding character, as their impact on the environment needs to be properly assessed and weighed against the interest of the feature damaged. The more damaging such a project would be the higher needs to be the public interest in the climate change mitigation project. Therefore such projects could not be given the green light regardless of their impacts. All projects, including those with climate change mitigation benefits, would still have to be assessed along the lines I have tried to set out above.

May 2013