Begränsar begränsningen av begränsningsvillkor samtliga begränsningsmöjligheter av växthusgasutsläpp? - Den förvirrande bestämmelsen i 16 kap. 2 § c miljöbalken

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The Swedish Environmental Code is an important tool for reducing Sweden’s greenhouse gas emissions and the prospect of reaching a climate-neutral state by the year 2045. The Environmental Code’s permit procedure for environmentally hazardous activities can influence the actions and precautionary measures a business operator must undertake when operating an activity that causes inconvenience to the environment though, for example, greenhouse gas emissions. By imposing requirements on best possible technology, such as certain purification equipment, choice of fuel or emission limit values, it’s possible to affect the greenhouse gas emissions of an operation. Conditions that impose requirements on the business’s management with energy and resources can also influence the emissions of greenhouse gases of the operation. For the activities covered by the EU emissions trading scheme it’s according to Chapter 16 section 2 (c) in the Environmental Code not possible to prescribe conditions that limit greenhouse gas emissions similar to the measures presented above. The provision aims to avoid a double regulation of greenhouse gas emissions between, on the one hand, the legal requirements of the Environmental Code and, on the other, the economic incentives of emissions trading. What the provision in Chapter 16 Section 2 (c) of the Environmental Code exempts for types of activities, what’s limited in the terms and conditions or what other possible regulations according to the Environmental Code that are possible to take are however not entirely clear. This essay has sought to clarify some of the issues and ambiguities the provision raises. First, it’s possible to question which activities the provisions exempt from requirements concerning emission limit values. In a permit for environmentally hazardous activities pursuant to the Environmental Code it’s in some cases possible to prescribe conditions for mobile operations, such as internal and external transport. In the emission trading scheme, moving operations are on the contrary not included in the permit obligation for emissions trading. Internal and external transport, as moving operations, should therefore not be exempted from the stipulation of conditions in the permit for environmentally hazardous activities according to the Environmental Code set in Chapter 16 section 2 (c). However, at present these mobile activities are excluded from the permit for hazardous activities as well. This study has shown that there’s no linguistic barriers to prescribing conditions for internal and external transport linked to an activity in the emissions trading scheme. Consequently, there’s reason to review how the provision is applied in practice. Secondly, the wording of the provision doesn’t provide clear answers to the types of condition under the Environmental Code that can or cannot be prescribed. Conditions for the best possible technology as well as conditions for energy conservation are possible to prescribe in a permit for environmentally hazardous operations if the condition has a different purpose than reducing greenhouse gas emissions. On the other hand, what may be a side effect of a condition with another main purpose doesn’t matter and it’s possible to question the significance of the wording of the purpose. Thirdly, it’s possible to examine whether the wording in the provision also limits other possible measures according to the Environmental Code than just the possibility of prescribing conditions that limit greenhouse gas emissions. According to the Environmental Code, a permit for environmentally hazardous activity with significant environmental impact can be valid for a limited time. Practically, this rarely occur. The Environmental Code also makes it possible to deny a permit due to its negative environmental effects. Which also only occur exceptionally. If the provision in Chapter 16 section 2 (c) of the Environmental Code also exempts these possibilities is yet unclear and the issue is currently at the Land and Environment Court of appeal for review.

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