Has the Commission violated EU law over biofuels?

A senior environmental lawyer has undertaken a new legal analysis of the Commission’s proposal to address indirect land-use change (ILUC) caused by the EU’s biofuels policy, revealing that the EU executive violated a fundamental principle of EU law in its response to the problem of ILUC.

This principle is the ‘precautionary principle’, established in EU law in the 1970s. The current Treaty on the Functioning of the European Union says EU policy ‘shall be based on the principles that preventive action should be taken’. Tim Grabiel, author of the analysis, says that in practice this means the Commission must act if there is reasonable evidence to suggest something is a health or environmental risk to the EU.

He argues that years of research has yielded enough scientific evidence to show that ILUC – whereby growing crops for biofuels has knock-on effects that can increase greenhouse gases and cause hunger – is an environmental risk, therefore the precautionary principle requires the EU to take full account of it. Yet the current Commission proposal on biofuels, published in October 2012, does not include ILUC factors as part of assessing which biofuels can help reduce climate-changing emissions. Grabiel says this raises inter-institutional issues and that it is now the job of Members of the European Parliament to ensure that the precautionary principle is fully applied.

Nestle and Unilever call on G8 group to reduce biofuels mandates

Current EU legislation requires renewable fuels to make up 10% of the transport fuels market by 2020; in reality most of this target will be met with biofuels. The Commission proposed in October that only half of the target can be met with biofuels produced from food crops, many of which, when ILUC factors are included, emit more than traditional fossil fuels. Two of the biggest food multinationals, Unilever and Nestlé, joined this call by writing to the British government earlier this month asking it to use its presidency of the Group of 8 leading industrial countries to work towards reducing the biofuels mandates.  Oxfam and ActionAid estimate that foodstuffs converted to fuel each year by the eight countries would feed 441 million people.

The Irish presidency of the EU last month suggested abandoning the idea of a 5% limit, proposing instead a 2% sub-target for advanced biofuels. The Commission’s climate directorate, however, said it still supported the 5% cap to prevent the risk of ILUC mostly caused by the ‘first generation’ biofuels and to encourage the development of more sustainable ‘second generation’ biofuels.