INTRODUCTION

Despite technological progress and the use of the latest filtering systems coal-fired plants still unavoidably discharge mercury into the environment. Mercury is a heavy metal that is considered highly toxic to human health and the ecosystems. In order to avert the particular hazard of mercury it has been added to the list of priority hazardous substances under Annex X of the Water Framework Directive in 2001. Annex X includes all priority substances, the emission, discharge, and loss into the environment of which need to be stopped or gradually ended. This provision is usually referred to as the phasing-out requirement which demands an end to emissions of the listed substances. It is one of the key goals of the Directive, as it is expressly mentioned in the purpose of the WFD (Art. 1(c)) WFD).

Acknowledging the impact of mercury on human health and ecosystems, this contribution considers the legal implications of the phasing-out requirement for the permission of coal-fired power plants. The chapter is structured in three sections. The first part deals with facts and figures concerning coal-fired power plants and its impact on human health and the environment. The second part analyses the different legal interpretations of the phasing-out requirement. The article ends with a conclusion focusing on the significance of the phasing-out requirement for the permission of coal-fired power plants.

So far, the effect of the phasing-out requirement on the permission of coalfired power plants was especially subject of a German driven discussion in legal literature and jurisdiction. This contribution wants to provide this issue to an English-speaking audience with the aim to encourage an EU-wide debate.

FACTS AND FIGURES CONCERNING COALFIRED POWER PLANTS

Apart from their problematic ‘carbon footprint’, coal-fired power plants raise concerns because of their significant emission of mercury. In 2012, the primary production of electricity generated by coal-fired power plants had a proportion of 20.7% of the EU-wide energy mix. The share of coal-fired power plants with regard to the total amount of mercury emissions is surprisingly high. A study of the German Federal Environment Agency reveals that in 2012 a total amount of 10.37 tons of mercury was emitted in Germany. Large power stations of the energy industry emitted by far the largest share of 6.94 tons.