The Luxemburg-based General Court, part of the Court of Justice of the European Union (EU) has ruled that the EU can continue to count nuclear power, and in some cases fossil gas, as “environmentally sustainable”. The General Court found against a complaint from Austria, which sought to overturn the decision to include the two energy sources in the EU’s taxonomy regulation, which determines which investments can be considered as green.
The Taxonomy Regulation, adopted by the EU in 2020, sought to channel finance towards sustainable activities with a view to achieving a climate-neutrality in the EU by 2050. The regulation lays down the criteria for determining whether an economic activity qualifies as environmentally sustainable. To qualify an activity must contribute substantially to one or more environmental objectives without causing significant harm to any of those objectives and comply with technical screening criteria.
The General Court said the European Commission (EC) “was entitled to take the view that nuclear energy generation has near to zero greenhouse gas emissions and that there are currently no technologically and economically feasible low-carbon alternatives at a sufficient scale, such as renewable energy sources, to cover the energy demand in a continuous and reliable manner”.
The case was brought by Austria in October 2022 on the grounds that the inclusion of nuclear power and fossil gas breached EU law and that the EC had neglected to carry out an impact assessment or public consultation and bypassed normal legislative processes.
Austria was responding to a delegated regulation adopted by the EC in February 2022 and approve by the European Parliament the following August, which established technical screening criteria to include certain activities in the nuclear and gas sectors in the category as activities contributing substantially to climate change mitigation or climate change adaptation.
The court said it “endorses the view that economic activities in the nuclear energy and fossil gas sectors can, under certain conditions, contribute substantially to climate change mitigation and climate change adaptation. The approach taken by the 2022 delegated regulation is a gradual approach based on a reduction of greenhouse gas emissions in stages, while allowing for security of supply”. It added that the EC took “sufficient account of the risks associated with normal operation of nuclear power plants, serious reactor accidents and high-level radioactive waste”.
The ruling comes after Germany signed an agreement with France to develop a coherent policy accepting the inclusion of nuclear power in a low-carbon energy mix.
However, it was repudiated by environmentalists. It is a “dark day for the climate,” said Martin Kaiser, executive director of Greenpeace Germany. “It channels billions into gas and nuclear instead of driving forward the rapid transition to renewable energy.”
Austrian Agriculture Minister Norbert Totschnig said: “We were, and remain, of the opinion that nuclear power does not meet the criteria for environmental sustainability. Fossil gas will also only play a transitional role in the energy transition.” Austria has just over two months to appeal to the Court of Justice against the General Court decision.
