Towards ecological governance in EU energy law: with a focus on biomass regulation and the use of ‘best available techniques’

This dissertation analyses how a full life-cycle approach might be implemented in European energy law in order to facilitate and expedite the energy transition. In this, the legislation on biomass and biofuels served as guidance, as it imposes sustainability criteria that consider the full production chain. However, careful analysis showed that the current rules do not amount to a full life-cycle approach. Next, it was investigated to what extent ‘ecological governance’ can be implemented via increased mandatory use of ‘best available techniques’ (BAT). This legal instrument is central in the regulation of industrial emissions, but not throughout other parts of the production chain. In principle, a broad application of BAT to new legislative areas seems well possible. Then, it was assessed whether such a new application is in line with (international) trade law. It was concluded that there appear to be no categorical, legal barriers to such a new approach, provided certain conditions are met. Lastly, it was analysed whether the use of ‘technology neutral’ legal instruments, such as BAT, is desirable and/or necessary in implementing a system of (futureproof) ecological governance. It turned out that such instruments are not essential. On the basis of the four sub-studies (each published as seperate articles) and additional research, it is eventually concluded that implementing ecological governance is only possible if certain assumptions underlying the current (legal and economic) framework are simultaneously questioned. In particular the notion of (permanent) economic growth is at odds with implementing ecological governance in European energy law. Thus, a system change is required that goes well beyond the legal framework.