In May 2022, the Climate Law Inquiry submitted its final report, Rätt för klimatet (SOU 2022:21) [Justice for the Climate], to the Government. The report contains proposals for legislative changes in order to: 1) promote contributions to the climate transition, 2) facilitate the construction of electricity networks and 3) guarantee a transport-efficient society. After the upcoming change of government, there is uncertainty as to what will happen to the inquiry’s proposals, but it is likely that at least the proposed regulatory simplifications for the construction of electricity networks will be able to form the basis for further legislative work. We summarise the most important aspects of the inquiry in this article.
The Climate Law Inquiry was set up in winter 2019. The aim of the inquiry was to review all Swedish legislation in order to ensure that the climate policy framework had an impact. The climate policy framework is based on the Paris Agreement and means that Sweden must have net zero emissions of greenhouse gases by 2045 at the latest and negative net emissions thereafter.
The inquiry submitted the interim report entitled “En klimatanpassad miljöbalk för samtiden och framtiden” (SOU 2021:21) [A climate-adapted Environmental Code for the present and the future] to the Government in March 2021. The focus of the interim report was to study what changes to the Environmental Code are needed in order to ensure that Sweden can achieve the climate goals. The inquiry’s proposals included an addition to the recitals of the Environmental Code to clarify that greenhouse gas emissions are included in the Environmental Code. The inquiry also analysed the regulation of the best possible technology and came to the not entirely uncontroversial conclusion that the EU emissions trading system is no obstacle to also imposing requirements on the best possible technology for greenhouse gases. The inquiry therefore proposed legislative changes to the Environmental Code to make such requirements possible.
In the interim report, the inquiry also began an analysis of the conditions for introducing a new balancing rule for climate considerations in the Environmental Code. Since this was a complicated issue, the inquiry could not come to any definite conclusions and therefore received an additional directive from the Government to continue studying this issue.
In the final report, the inquiry focused on what changes are needed in the Environmental Code and on changes in other legislation. The transport sector and the expansion of the electricity network are the focus areas identified by the inquiry as far as other legislation is concerned.
PROMOTING CONTRIBUTIONS TO THE CLIMATE TRANSITION – CHANGES TO THE ENVIRONMENTAL CODE
The inquiry has looked at the scope for certain parts of the Environmental Code to be expanded in order to promote activities that contribute to the climate transition. In order to promote such activities, the inquiry proposes an addition to the current site selection rule in Chapter 2(6) of the Environmental Code. In accordance with the addition to the provision, when a location for an activity or measure is chosen, it must be possible for the purpose of the activity or measure to be achieved with the least impact on the climate or the greatest contribution to minimising climate change. As an example of the balance between human health and the environment and climate when applying the site selection rule, the inquiry indicates that when locating a wind farm, it could be appropriate to choose the place where the wind blows hardest even if it would cause slightly higher noise disturbances for nearby residents than an alternative location with worse wind conditions.
The inquiry does not propose a new balancing rule on climate benefits in the Environmental Code. The overall purpose of such a provision would be a greater contribution to the climate transition since certain businesses that would not normally be granted permits in some cases would still be able to obtain them. Such a rule could also be used to allow more generous conditions than would otherwise have been the case. According to the inquiry, one important factor in the climate transition is that assessments must proceed faster than is the case today. Since most businesses that apply for a permit are granted a permit, the inquiry considers that it is primarily the permit assessments that need to be speeded up. Because a balancing rule risks further delaying the permit process in such cases, the inquiry considers the introduction of such a provision inappropriate.
One reason for lengthy processes that also constitutes a risk for processes in which opposing interests are introduced late in the assessment is the fact that there is currently a lack of clarity in the balancing that must take place in favour of the interests of national defence. That means that the interests of national defence are raised at a late stage in the process and it is difficult for operators to obtain information at an early stage on the impact the activities are considered to have on national defence. According to the inquiry, it is important for operators to receive guidance at an early stage on when and how a planned activity could cause significant damage to the interests of national defence and how any conflict can be resolved. The inquiry therefore proposes that the Swedish Armed Forces should be commissioned to produce guidelines on how activities that contribute to the climate transition can coexist with national defence activities without being significantly detrimental to the interests of national defence or causing obvious damage in areas that are of interest for national defence facilities.
The inquiry has also looked at the conditions for introducing the climate as a specific interest in Chapter 3 of the Environmental Code, in which housekeeping rules and national interests are regulated. However, the inquiry has not proposed any additions to these provisions because several of the key activities for the climate transition are already indirectly covered by the provisions contained in Chapter 3 of the Environmental Code. For example, this takes place through the extraction of metals that are critical for the climate transition and minerals and electricity networks at higher voltage levels.
FACILITATING THE CONSTRUCTION OF ELECTRICITY NETWORKS – PROPOSALS FOR AMENDMENTS TO THE ELECTRICITY ACT
One critical part of the climate transition is electrification to enable fossil fuel use to be replaced by emission-free electricity. The electricity network must be adapted and strengthened in order to make this possible. The inquiry has focused on what can be done legally to help strengthen and expand the electricity grid. One obstacle to expansion is the fact that testing of electricity networks take a very long time. In some cases, as long as 16 years. The inquiry therefore puts forward a number of proposals to ensure that testing can be speeded up.
The inquiry proposes, among other things, that the current suitability test should be clarified and simplified by inserting clear criteria in the Electricity Act to be used as a basis by the review authority when assessing the suitability of a new electricity line. Under the proposed provisions, it will also be possible to obtain a binding advance ruling on whether an electricity line is suitable. Furthermore, it is proposed that the Electricity Act should state that when choosing a technology, the main rule is that it must be an overhead cable. The question of an underground cable need only be investigated in certain specific cases. This is because an overhead cable is normally the most suitable solution and it is therefore unnecessary to spend time on this in the processes. To further facilitate the processes, it is proposed that the assessment of provisions on shore protection and biotope protection be included in the concession assessment.
The inquiry also proposes that energy and climate planning be reviewed. This takes place through production by the National Board of Housing, Building and Planning of guidance for planning in accordance with the Planning and Building Act. It is also proposed that the Swedish Energy Agency be entrusted with pointing out areas of national interest for energy distribution in accordance with Chapter 3 of the Environmental Code.
A TRANSPORT-EFFICIENT SOCIETY – PROPOSED CHANGES FOR INFRASTRUCTURE PLANNING
According to the inquiry, the climate conversion of the transport system needs to be based on three pillars to enable it to achieve Sweden’s long-term climate goal of net zero emissions by 2045. These three pillars are: 1) a transport-efficient society, 2) sustainable renewable fuels including electrification, and 3) energy-efficient vehicles and vessels. The inquiry considers that car and truck traffic and domestic flights must be reduced in order for the climate goals to be achieved.
To make stronger governance possible in order to reduce traffic, the inquiry proposes that the concept of “a transport-efficient society” be inserted in the regulations governing national and regional infrastructure planning. A transport-efficient society means reduction in traffic. Traffic planning is currently based on the so-called four-step principle, steps 1 and 2 of which are about rethinking and optimising existing infrastructure, step 3 involves limited renovations and step 4 involves new investments or major renovations. The inquiry considers that planning currently focuses too much on steps 3 and 4 and that the regulations need to be changed to allow greater focus on steps 1 and 2. Changes to the Swedish Transport Administration’s instructions, for example, are proposed in order to make this possible. The changes aim to give the Swedish Transport Administration a clear mandate, in addition its mandate for infrastructure planning, to plan, propose, finance and implement measures that may affect demand for transport, choice of transport mode or provide more efficient use of existing infrastructure.
If the inquiry’s proposal for changes to the transport planning regulations is adopted, one important change will be that the current forecast-based planning (in which the starting premise is always that traffic is expected to increase) must instead be based on a number of desired scenarios, in which a reduction in traffic work is one of the goals. To enable municipal projects aimed at reducing traffic work, such as footpaths, to be financed, a development of current urban environment agreements is proposed so that support can also be sought for infrastructure for walking. The inquiry also proposes that approved considerations within the framework of urban environment agreements should include measures that can help reduce vehicle traffic.
Since, according to the inquiry, physical planning at municipal level is extremely important for transport- and energy-efficient community building, the inquiry considers that the four-step principle also needs to be inserted in planning and building legislation. There is currently no explicit legal support for taking the four-step principle into consideration in the environmental assessments that precede comprehensive plans and local development plans. The additions proposed by the inquiry mean that the municipalities will need to take into account the conditions for accessibility and proximity to various community and service functions at an earlier stage of the physical planning.
The inquiry also proposes an amendment to the Environmental Code aimed at strengthening the work towards a transport-efficient society. The proposed amendment is an addition to Chapter 22, section 25 of the Environmental Code, which governs what a permit must contain. According to the proposed addition, a permit must contain, where appropriate, “the conditions necessary to reduce the environmental and climate impact of the transports that constitute connected operations in accordance with Chapter 16, section 7”. In order for conditions to be regulated, traffic is required to take place in such proximity to the activity that it can be considered to depend on the activity in question and the operator is required to have the actual and legal ability to ensure compliance with the condition. The ability to prescribe transport conditions is already used at present, but the inquiry considers that it does not take place to a sufficient extent and that a change in the law is therefore needed in order for the review authorities to issue such conditions to a greater extent.
In view of the fact that the Government is likely to change, the extent to which the Climate Law Inquiry’s proposals in the interim report and the final report will lead to changes in the legislation is currently unclear. Since the inquiry has no connection to EU legal requirements, i.e. it is not a question of introduction of new legislation to meet requirements in a directive or regulations, there is also no obligation for Sweden to introduce the proposed changes in current legislation. The need to amend the legislation is based on work being carried on to reduce greenhouse gas emissions and a future Government will not be able to disregard the fact that this need will remain. This means that the inquiry’s proposals are, to some extent at least, something that even a new Government must adopt a view on and the inquiry’s assessments may also form a basis for further studies in the area of climate law.
The most uncontroversial aspect of the inquiry, and the aspect which is likely to receive support from both a new Government and the Riksdag is, in our view, the proposal to simplify and clarify the assessment of concessions for electricity network lines. The long testing periods and complicated processes with parallel environmental law review have long been identified as an obstacle to an efficient expansion of the electricity network. The inquiry’s proposals for simplifying the rules have also been welcomed by the industry organisation Swedenergy.
We will, of course, continue to monitor legal developments resulting from the Climate Law Inquiry and other climate-related legislative developments. Do you want to know more about the inquiry or did the article raise other questions? You are most welcome to contact any of us or your regular contact at Lindahl.