Legal analysis on including the EU Birds, Habitats and Water Framework Directives into the Energy Community Treaty

The analysis asserts that the current environmental acquis of the Energy Community Treaty is inadequate to prevent biodiversity loss and water deterioration caused by energy projects. It recommends the adoption of selected articles from the EU Birds, Habitats, and Water Framework Directives, arguing that such measures would not impose significant additional burdens since many Contracting Parties already have existing obligations under the Bern Convention or EU accession processes. The document details the specific risks posed by various energy sources—including coal, nuclear, wind, and hydropower—and provides a tailored legal framework for implementation within the Energy Community.

• The current environmental acquis within the Energy Community Treaty (ECT) is insufficient to protect the environment from energy sector impacts, creating a risk of 'emissions leakage' where coal power plants gain a competitive advantage through lower standards, or 'energy grabbing' where EU countries import renewables from third countries with lower environmental standards.
• Energy infrastructure poses diverse risks to biodiversity: power lines threaten birds and bats; wind farms cause collision fatalities and habitat loss; and hydropower facilities create barriers to species migration and disrupt sediment dynamics.
• Fossil-fuel and nuclear energy generation significantly impact water quality; coal production leads to acid mine drainage and heavy metal contamination, while nuclear plants can increase natural water source temperatures by up to 30 degrees, risking aquatic life.
• The author recommends incorporating Articles 2, 3, 4(1), 4(4), 5, 13, and 14 of the Birds Directive into the ECT to protect endangered bird species, suggesting that existing national and international protected areas, including Emerald sites, should be considered Special Protection Areas (SPAs).
• For the Habitats Directive, the analysis recommends incorporating an adapted version of Article 6(2), Articles 6(3) and (4), Article 12(1) and (3), Article 13, Article 16, and Article 7, specifically to require appropriate assessments (AA) for projects likely to affect protected sites.
• The analysis proposes incorporating Articles 3, 4 (excluding paragraph 4), 5, 6, 8(1) and (2), 9, 11, 13, and 14 of the Water Framework Directive (WFD), emphasizing Article 4(7) regarding derogations for projects that cause water body deterioration.
• It is proposed that Contracting Parties align their river basin management plans (RBMPs) with the EU's third management cycle, with plans published by the end of 2027 and good water status achieved within 15 years of the implementation decision.
• The document argues that incorporating these Directives would not pose a significant additional burden because most Contracting Parties have already ratified the Bern Convention or are in the process of transposing EU law for EU accession.

APA

Smolak, M. (2021). Legal analysis on including the EU Birds, Habitats and Water Framework Directives into the Energy Community Treaty. ClientEarth. https://www.clientearth.org/media/qn3cca5q/legal-analysis-on-including-the-eu-birds-habitats-and-water-framework-directives-into-the-energy-community-treatz_2021.pdf

Chicago

Smolak, Małgorzata. Legal analysis on including the EU Birds, Habitats and Water Framework Directives into the Energy Community Treaty. ClientEarth, 2021. https://www.clientearth.org/media/qn3cca5q/legal-analysis-on-including-the-eu-birds-habitats-and-water-framework-directives-into-the-energy-community-treatz_2021.pdf.

Wikipedia

{{cite report |last1=Smolak |first1=Małgorzata |title=Legal analysis on including the EU Birds, Habitats and Water Framework Directives into the Energy Community Treaty |publisher=ClientEarth |date=January 2021 |url=https://www.clientearth.org/media/qn3cca5q/legal-analysis-on-including-the-eu-birds-habitats-and-water-framework-directives-into-the-energy-community-treatz_2021.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{smolak2021legal, author = {Smolak, Małgorzata}, title = {{Legal analysis on including the EU Birds, Habitats and Water Framework Directives into the Energy Community Treaty}}, institution = {ClientEarth}, year = {2021}, month = jan, url = {https://www.clientearth.org/media/qn3cca5q/legal-analysis-on-including-the-eu-birds-habitats-and-water-framework-directives-into-the-energy-community-treatz_2021.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }