On 27 April 2018, the Popular Party’s Parliamentary Group registered a law proposal (the Proposal) in the Spanish Parliament to modify Law 24/2013, of 26 December of the Electricity Sector. In particular, this Proposal intends to amend Article 53 of said Law. This article currently regulates the authorization procedure for the closure of electricity installation generations. The amendment would provide more reasons for which a request for the closure of an electricity generation installation may be denied.
This Proposal intends to replace the proposed draft Royal Decree regulating the closure procedure of electricity generation installations (draft Royal Decree). However, it has similar flaws, such as the legal uncertainty in which it leaves the electricity sector.
Previously, the content of this draft Royal Decree was subject to a public consultation procedure – in which IIDMA participated – which was finalized on 15 September, although there was not a draft text available at the time. Afterwards, the draft text was subject to a public participation procedure which took place from 14 November to 18 December 2017 and in which IIDMA also participated. In January, the Spanish energy regulator (the National Commission on Markets and Competition – CNMC) released a report both rejecting the underlying grounds of the Royal Decree and questioning its viability. Thus, it seems that the Spanish Government, facing opposition to the approval of the Royal Decree from both public opinion and the Administration, has opted to prepare and submit – via the Popular Party Parliamentary Group– a law proposal amending the Electricity Sector Law. The procedure by which this Proposal must be approved does not require the Government to engage in any public participation, nor does it require it to justify the measure.
In particular, as the Proposal has been presented by a parliamentary Group (rather than by the Government), it does not need to be included in the Annual Policy Plan of the General Administration of the State for the year 2018, as approved by the Council of Ministers of 7 December 2017. It doesn’t even need to be justified in the corresponding Normative Impact Assessment Memory – as it should have been in case the Government had prepared a draft law. Thus, the Government avoids having to justify this measure.
With regards to public participation, the Government avoids having to carry out the public consultation foreseen in Article 26(1) of Law 50/1997, of 27 November, of the Government. This results in a corruption of the democratic system itself. In accordance with Article 44 of the Regulation of the Spanish Parliament, civil society may participate only if permitted by the parliamentary groups within the parliamentary committee/s in charge of the proposal. They may request the appearance, within those committee/s, of experts in the subject matter under discussion. This does not allow for a broad participation of civil society.
It is clear that, after the CNMC rejected the draft Royal Decree and “reprimanded” the Ministry of Energy for trying to modify a Law through a regulatory instrument instead of through another law (as legally required), the Government concluded that it was necessary to amend the Law of the Electricity Sector. However, instead of presenting a draft Law, the Government has opted for the Popular Party’s Parliamentary Group to present a law proposal as a manoeuvre to avoid public participation.
Furthermore, the text of the Proposal does not take into account the health of Spanish citizens. The proposed authorization procedure for the closure of an electricity generation installation does not contemplate the need to consider the impacts on health caused by the emissions of installations which burn fossil fuels, such as coal. It is important to recall that the Committee on the Rights of the Child, in its Concluding Observations on the combined fifth and sixth periodic reports of Spain -published on 2 February 2018- recommended “that the State party carry out an assessment of the impact of air pollution from coal-fired power plants on children´s health and on the climate as a basis for designing a well-resourced strategy to remedy the situation and regulate strictly the maximum emissions of air pollutants, including by private businesses.” Clearly, the Proposal does not respect these observations made by the Committee on the Rights of the Child.
In addition, the Proposal does not include a priority list for the many different interests to be taken into consideration when deciding on the closure of an electricity generation installation. Apart from the operator of the system, which must prepare a report on whether the closure of the plant presents any issues to the security of supply of the system – as established by article 53(5) of the Law of the Electricity Sector-, the Proposal provides that the CNMC, the Climate Change Office and the Institute for Diversification and Energy Savings must also assess the plants’ closure. If one of these bodies considers that the closure of the plant produces a negative impact within its field of competence and therefore submits a negative assessment, the authorization for closure will be denied. Afterwards, the Ministry of Energy may draft a regulation to adopt the necessary measures for the plant to continue operating, including a competitive procedure to transfer the ownership of the facility.
Even though this Proposal will need the support of other parliamentary groups to obtain the necessary majority for its approval, it is clear that the proposed text shows reluctance from the Spanish Government to fight against climate change. At the same time, while a draft Royal Decree and a Law Proposal to hinder the closure of coal plants have been drafted in such a short period of time, there is no sign of a draft Climate Change and Energy Transition Law. However, already a year has passed since the working sessions to impel the elaboration of this Law took place, which were opened by a speech from the Spanish President.
Although it is urgent to combat climate change, the Spanish Government shows once again a lack of ambition and vision in this matter. It is clear that it is completely disconnected from social demands and the current need to protect our planet and future generations.
Ana Barreira is a lawyer and founding Director of the International Institute for Law and Environment (IIDMA). LL.M in International Legal Studies (New York University) and in Environmental Law (London University).