A mounting stack of conclusive scientific studies failed. Letters signed by hundreds of top scientists failed. Public and social media campaigns, protests, petitions, damning media stories, and commentaries failed. So did intense lobbying by influential policymakers.
Despite more than a decade of nonstop work, forest advocates have been stymied in their efforts to reverse European Union policies that encourage the burning of forests to make energy. Now they are testing a new line of attack — using existing statutes and regulations to take their complaint to the EU court system.
In early February, a coalition of European and US NGOs, led by two European law firms, challenged the European Commission as it develops rules on what it deems sustainable finance for bioenergy and forestry. These rules would support forest biomass expansion as a good and environmentally sound investment. The complainants, however, allege that the new rules, along with existing policies favoring bioenergy, violate the Taxonomy Regulation approved by the 27-nation European Union in June 2020.
This regulation establishes a classification system to identify “environmentally sustainable economic practices” for companies, investors and policymakers. The EU has long claimed that burning wood instead of coal is a viable climate change-mitigation solution that also benefits forests by incentivising careful forest management and tree replanting. EU countries currently spend millions of euros annually subsidising bioenergy.
But the plaintiffs argue that officials have ignored the Taxonomy Regulation’s requirement that such policies must rest on established science supporting real reductions in carbon emissions, protecting forest capacity to pull and store carbon dioxide from the atmosphere, and honoring carbon-reduction commitments made under the 2015 Paris Agreement.
Recent studies have concluded that burning forests — with trees and organic waste processed into wood pellets and chips — generates more carbon emissions than coal per kilowatt hour. Also, the clearcutting of native forests, which already constitutes about half of the feedstock needed for pellets and chips, decreases nature’s ability to slow climate change.
The plaintiffs, including NGOs from Estonia, Germany, the Netherlands, Poland, Portugal, Romania, Sweden and the United States, are requesting an “internal review” by the European Commission to change its policies that regulate carbon accounting, subsidies for bioenergy and the logging of whole trees. Some 60 per cent of EU renewable energy currently comes from burning wood, more than zero-carbon wind, solar or nuclear power. That’s up from 40 per cent in 2014.
Forest biomass burning to produce energy continues to gain in popularity, prompted by a loophole in international climate policies that erroneously classifies wood burning as renewable and carbon neutral. Thus, significant greenhouse gas emissions from burning wood at former coal-fired powerplants are not counted at the smokestack, enabling countries to claim emission reductions required by law but which exist only on paper.
Should the commission decline the internal review, which is expected, the first lawsuit of its kind will be filed in the European General Court in Luxembourg in hopes of altering the trajectory of bioenergy dependence in the EU, which already burns more than 30 million metric tonnes of woody biomass annually — most of that coming from the US and Canada.
“The European Commission has breached the public trust and violated the law by advancing a regulatory scheme that greenwashes climate pollution and will continue business as usual exploitation of forests,” Elin Götmark of the Swedish NGO Protect the Forest said in a statement. “The Taxonomy Regulation must be amended by the Commission or struck down by the court.”
Legal action as climate action
The NGO coalition and its lawsuit are part of a growing wave of climate legal action.
Government leaders in one United Nations climate summit after another have failed to implement the legislative and regulatory changes that climate scientists stress are necessary to dramatically reduce greenhouse gas emissions and curb deforestation to slow the devastating impacts of global warming. Thus, civil society is turning to the courts to force governments and industrial polluters to abide by existing statutes.
According to the climatecasechart.com, some 1,800 lawsuits related to climate change are ongoing in courts around the world. Perhaps the most famous successful case was decided in The Netherlands in May 2020 when a Dutch court ordered fossil-fuel giant Royal Dutch Shell to cut its carbon emissions more than twice as fast as it had promised, reducing them by 45 per cent instead of the originally proposed 20 per cent by 2030.
“The Taxonomy Regulation is a specific EU regulation,” Dan Galpern, an Oregon-based environmental attorney, told Mongabay. “That means the EU committed itself under law to certain actions. Where there is a foothold like that, whether on a statutory or regulatory basis, it makes sense for these NGOs to hold the EU accountable to its commitments.”
Galpern is representing plaintiffs preparing to sue the US Environmental Protection Agency to enact regulations under the Clean Air Act to require the phasing out of fossil fuel emissions so that the United States can meet its carbon-reduction pledge under the Paris Agreement.
But just because a suit is filed does not mean it will get its day in court.
Legal standing still unknown
In 2019, a similar coalition of EU environmentalists and individuals sued the European Commission over bioenergy-friendly policies that the activists claimed were fueling deforestation and undermining climate action. The European Court dismissed the action in 2020 not on the merits of the case, but because the plaintiffs lacked legal standing to sue EU nations.
Ole Windahl Pedersen, a professor of environmental law at Aarhus University in Denmark, told Mongabay that the plaintiffs in the Taxonomy Regulation action likely face similar obstacles in getting their case heard.
But the current claimants hold out hope: The so-called Aarhus Regulation (not related to the university) governs EU legal standing in lawsuits and has been recently revised. “It seemingly expands the access to challenge decisions by EU institutions,” Pedersen said. “But it is done by a very narrow margin.”
Pedersen expects the NGO coalition to succeed in forcing an internal review by the European Commission of its bioenergy policies, “but there is still no general access to challenge their legislative decisions [in court].”
Clémentine Baldon, an attorney with Paris-based Baldon Advocats, which is jointly spearheading the lawsuit, told Mongabay she disagrees with Pedersen’s reading of the Aarhus revisions. She believes there are ways “to get around the overly restrictive conditions for [court] accessibility,” and she will pursue them based on legal precedents.
Whether through internal review or by trial, Christian Rakos of Austria, president of the World Bioenergy Association, said he believes his industry will prevail and forest biomass will retain its current global position as a fast-growing alternative to burning coal.
During an interview with Mongabay at the UN climate summit in Glasgow, Scotland in November, and also later in response to questions about the NGO legal action, Rakos maintained that careful forest management practices enable selective harvesting of wood for bioenergy without reducing a forest’s capacity to sequester carbon emissions.
“Every day, the amount of CO2 captured by [forest] new growth is larger than the emissions from harvesting and use in the catchment areas of bioenergy plants,” Rakos said. “There is solid evidence that this balance is maintained in all the main sourcing areas the NGO initiatives refer to.”
Long-term impact of biomass demand
The view held by Rakos was challenged by an exhaustive study published last November in the journal GCB Bioenergy on the future demand for wood pellets and its impact on global forests. The findings could provide more scientific weight to the EU legal action.
The study’s four authors took a long view regarding the use of biomass given the current and growing popularity of wood pellet burning in the United Kingdom, EU, Japan and South Korea. Pellet producers in the US Southeast, British Columbia and Southeast Asia are now fast ramping up to meet future demand, putting increased pressure on native forests.
The researchers project that the global production of wood pellets will triple, from 38.9 metric tonnes in 2019 to 120 metric tonnes by 2050 — when most industrialized economies have promised to completely phase out greenhouse gas emissions. The authors forecast soaring uncounted carbon emissions by then, helping cripple the Paris Agreement goal of holding global temperature rise to 1.5° C (2.7° F) over pre-industrial levels.
The scientists wrote: “The anticipated demand [for wood to burn] would most heavily affect forests in the US Southeast, a forest carbon sink that has historically played a significant role in reducing net emissions in the United States.… If harvests for biomass feedstock production reduce this sink, the United States may need to rely upon other, more costly sources of mitigation to meet domestic climate policy goals.”
Co-author John Gunn, a forestry expert at the University of New Hampshire, told Mongabay that the impact of wood pellet demand can’t be viewed in a vacuum. In the Southeast US, carbon-sequestering forests are also being squeezed by the wood-products industry, by development, wildfires and insect disturbances, Gunn said. So biomass producers will only worsen already serious deforestation to meet growing demand for pellets in the EU and UK.
Expressing study findings that parallel the arguments of plaintiffs in the EU biomass case, Gunn said, “The majority of the volume of wood that comes out of forests globally comes out of practices that don’t consider the next 50 years and whether we’ll be resilient to climate impacts. All the things we expect from forests are going to be harder to come by — the flow of wood products, the need for ecosystem services, carbon sequestration and clean water. We will need some intense stewardship of our forests in order to continue reaping those benefits.”
This story was published with permission from Mongabay.com.