RENEWABLE ENERGY CONTAINS “UNIVERSAL PUBLIC BENEFIT”

28 Şubat 2022
Haberler

According to the decisions taken by the relevant public authority in Turkey, it can be decided that renewable energy investments are of public interest. Nowadays, when the climate change caused by carbon emissions from fossil fuels has turned into a climate crisis and its effects are increasing gradually, this article aims to present and discuss the definition of “Universal Public Benefit”, which is a new public benefit concept for renewable energy investments that reduce environmental pollution for the benefit of all humanity, have no or very little carbon emissions, and make countries independent in energy. Thus, find out this concept, this article has benefited from the following titles and international agreements.

ENVIRONMENT

Legal regulations regarding the environment in Turkey date back to ancient times. For instance, the Land Code of 1258 includes provisions on land use. The Forest Regulation of 1870 includes regulations regarding the protection and operation of forests and extinguishing forest fires. There are many basic regulations regarding the protection of game animals and hunting in Ottoman Code of Civil Law. There are also environmental provisions in the Public Health Law of 1930 and the Forestry Law of 1937.  Further, Article 56 of Turkish Constitution states that “Everyone has the right to live in a healthy and balanced environment. It is the duty of the State and citizens to improve the environment, protect environmental health and prevent environmental pollution”. The definition of the concept of environment has also been made in our Environment Law, which came into force after being published in the Official Gazette No. 18132 on 11.08.1983. According to the definition, “environment” means “the biological, physical, social, economic and cultural environment in which living creatures maintain their relationships and interact with each other throughout their lives”.

Based on the Environmental Law, the Environmental Impact Assessment Regulation entered into force by being published in the Official Gazette No. 29186 on 25.11.2014. In the regulation, Environmental Impact Assessment (EIA) states; “Actions to be carried out in determining the positive and negative effects of the projects planned to be materialized on the environment, in determining and evaluating the measures to be taken in order to prevent or minimize the negative effects so as not to harm the environment, the selected location and technology alternatives, and the monitoring and control of the implementation of the projects.”, and the regulation includes, administrative and technical procedures and principles to be followed in the EIA process, application file, for which type of projects the EIA report and Project Introduction File will be requested and the subjects that will be included, application, pre-construction, construction, operation and post-operation monitoring and inspection of the projects included in the scope of the project, the necessary training activities for the effective and widespread implementation of the EIA system in environmental management and for strengthening its institutional structure.

The Strategic Environmental Assessment Regulation was published in the Official Gazette No. 30032 on 08.04.2017. The regulation has been prepared within the framework of harmonization with the European Union legislation, taking into account the Directive of the European Parliament and the Council on the Evaluation of the Effects of Certain Plans and Programs on the Environment, No. 2001/42/AT on 27.06.2001. In addition to this, the regulation covers the administrative and technical procedures and principles regarding the making, monitoring and training of the plans/programs that form the framework for the projects included in the Annex-1 and Annex-2 lists of the Environmental Impact Assessment Regulation published in the Official Gazette No. 29186 on 25.11.2014 which has been prepared regarding the waste management, fisheries, energy, coastal management, spatial planning, forestry, industry, water management, agriculture, telecommunications, tourism and transportation sectors.

The Code on the Establishment of the Turkish Environment Agency and the Amendment of Certain Laws was published in the Official Gazette No. 31350 on 24.12.2020. The main purpose of this code is to establish Turkish Environment Agency to prevent environmental pollution and contribute to the protection, improvement and development of green areas, to increase resource efficiency in line with the circular economy and zero waste approach and to carry out activities regarding the establishment, operation, monitoring and control of a national scale deposit management system.

RENEWABLE ENERGY

In the Electricity Market License Regulation, production facilities based on renewable energy sources are defined as “canal or river type or hydroelectric generation facilities with a reservoir area of ​​less than fifteen square kilometers or with pumped storage and obtained by wind, solar, geothermal, biomass, gas from biomass (including landfill gas), wave, current energy and tide”. It is described in the similar way in other countries and each country tries to increase its electricity production from its own renewable energy sources. However, it is not possible to produce electricity from these sources at the same rate in every country. In some countries, geothermal comes to the fore, while in some countries more electricity is produced than hydro, wind or solar energy. For instance, Iceland’s geothermal electricity generation or Norway’s hydropower generation is higher than other countries for geological reasons. On the other hand, Germany benefits from both wind and solar energy. Finally, Turkey has the potential to generate twice as much electricity as it consumes from various types of renewable energy sources, except for wave energy.

It is demonstrated in the decision of the Presidency of the Turkish Constitutional Court No. 2011/27-2012/101 on 05.07.2012 “it is obviously clear that prioritizing renewable energy sources is significant for the protection of nature. It reduces greenhouse gas emissions, which may cause problems such as climate changes, melting of glaciers, shifting of seasons and inefficiency of agricultural lands in the long term due to the increase in the average temperature of the earth’s surface as a result of the use of fossil fuels such as coal, natural gas and fuel-oil.”

The benefits of electricity generation from renewable energy sources have been demonstrated by scientists on various topics. Renewable energy has benefits such as providing employment opportunities and not to emit carbon. For instance, according to the research conducted by the American Wind Energy Organization, 1 MW of wind energy prevents the release of 1,500 tons of carbon dioxide, 6.5 tons of sulfur dioxide and 3.2 tons of nitrogen oxides per year, compared to conventional sources. A wind power plant that can produce 100-110 GWh of electricity annually will be able to meet all the electrical energy needs of 33,000 people in daily life (such as housing, industry, metro transportation, government offices, environmental lighting). However, if only residential electricity consumption is taken into account, it can produce electricity that can meet the electrical energy needs of 34,600 houses. Considering that this amount of energy is produced from renewable energy sources instead of fossil fuels, 63,000 tons of carbon dioxide (CO2) emissions will be prevented annually. Moreover, this corresponds to the gas emissions of 27,000 cars traveling 15,000 km per year.

According to the report of the International Renewable Energy Agency; in 2016, it was announced that the renewable energy industry employs more than 9.8 million people in the worldwide. Currently, the number of people working in the renewable energy industry in the world has exceeded 12 million.

EUROPEAN UNION

During the establishment period of the European Union, a policy regarding the environment was not formed. There is no provision in this regard in the Treaty of Rome, which is the founding agreement. After the Stockholm Conference in 1972, environmental issues started to be included. Afterwards, First and Second Environmental Action Programs have formed the basis of EU environmental policies. Finally, environmental problems were evaluated as a separate topic in 1987 for the first time. Along with the Maastricht Treaty, the concept of “Sustainability” was introduced in the EU environmental policies.

In 1990, European Union has determined CO2 emission reduction goal at the Luxembourg Environment and Energy Council. Since then, it has tried to take strong position in the development of global climate policies. The European Union became a party to the United Nations Framework Convention on Climate Change (UNFCCC) on 21 March 1993. The obligation of the European Union in the Kyoto Protocol was to reduce greenhouse gas emissions by 8% below 1990 levels in the first period of 2008-2012. Accordingly, in order to maintain the 8% emission reduction, EU has divided the obligations among the Member States according to the EU Burden Sharing Agreement, which was decided in the Council in June 1998. In the EU 2020 Strategy adopted in 2010, objectives that contribute to the fight against climate change, also called 20-20-20, were included, and these objectives were later changed. Later on, The European Union signed the Paris Climate Agreement on 22 April 2016 and ratified it on 5 October 2016. Based on the “Post-2020 Global Climate Change Action Plan”, the European Commission has set an objective to reduce emissions by at least 40% by 2030, according to the National Intended Contribution Statement submitted to the UNFCCC Secretariat in March 2015, and accelerated its implementation to achieve this objective. The environmental policy of the European Union aims to eliminate, reduce and prevent pollution, to ensure sustainable development by ensuring that natural resources are used in a way that does not harm the ecological balance, to prevent environmental damage at its source and to ensure the integration of environmental protection with other sectoral policies (energy, transportation, etc.). It should be pointed out that Environmental Action Programs, which have been prepared since 1973, have been very influential in the development of the European Union’s environmental policy.

UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE (UNFCCC)

The first international study on climate change is the United Nations Framework Convention on Climate Change, which was went available for signature at the 1992 Rio United Nations Conference on Environment and Development and entered into force on 21 March 1994. Currently, there are 197 countries that are party to the UNFCCC. Turkey joined the UNFCCC as the 189th Party on May 24, 2004, with the law No. 4990 on 16.10.2003, published in the Official Gazette dated 21.10.2003 and No. 25266. Developed countries and other parties in Annex-I within the scope of the Convention, are obliged to reduce greenhouse gas emissions while developed countries and other parties included in Annex-II are obliged to provide financial support to other countries. At the time the Convention entered into force, Turkey was included in both annexes, and with the Decision No. 26/CP.7 taken at the 7th Conference of the Parties held in 2001, Turkey’s name was removed from the UNFCCC Annex-II list, but its special conditions were accepted and remained in the Annex-I list.

KYOTO PROTOCOL

The United Nations Framework Convention on Climate Change (UNFCCC) has constituted a forward-looking step in the fight against climate change. On the other hand, as greenhouse gas emissions continue to increase on a global scale and the negative effects of climate change are becoming more and more noticeable, the countries that are party to the UNFCCC have started to negotiate the Kyoto Protocol in order to strengthen the quality of the existing agreement in order for developed countries to undertake binding obligations. The Kyoto Protocol was adopted in 1997 and entered into force in 2005. In the protocol, quantified emission reduction objectives are specified for the Annex-1 parties. Turkey became a party to the Kyoto Protocol on August 26, 2009, with the adoption of the Law No. 5386 by the Turkish Grand National Assembly on February 5, 2009 following the Council of Ministers Decision on 13 May 2009 and No. 2009/14979 and the submission of the instrument of accession to the United Nations. Although Turkey, which was not a party to the UNFCCC when the Kyoto Protocol was accepted, was an Annex-I country, there was no quantified emission reduction commitment within the scope of the Protocol.

OSLO PRINCIPLES

In 2015, experts in the field of law met to discuss countries’ legal obligations regarding climate change. Experts consist of members of all national and international courts, universities and organizations around the world. As a result of this congress, the Oslo Principles were adopted. It was stated that efforts should be made to clarify the uncertainties in the obligations of countries regarding climate change.

PARIS AGREEMENT

The Paris Agreement was adopted at the UNFCCC 21st Conference of the Parties held in Paris in 2015. The agreement entered into force on 4 November 2016, as a result of meeting the ratification requirement of at least 55 parties that account for 55% of global greenhouse gas emissions as of 5 October 2016. The long-term goal of the agreement is to keep the global average temperature rise 2°C below pre-industrial levels; In addition, it is expressed as the continuation of global efforts to keep this increase below 1.5°C.

The most distinctive feature of the Paris Agreement, when compared to the UNFCCC, is that it envisages a system based on the contributions of all countries. The agreement is based on the classification of developed/developing countries in the fight against climate change and the understanding that all countries assume responsibility under the principle of “common but differentiated responsibilities and respective capabilities” (CBDR–RC). However, no criteria have been determined for the classification of developed/developing countries and no differentiation was made. The Paris Agreement aims to strengthen the global socio/economic resilience against the threat of climate change in the post-2020 period. As mentioned earlier, the long-term goal of the Paris Agreement is to keep the global temperature rise below 2°C as much as possible compared to the pre-industrial era. This target requires the use of fossil fuels (petrol, coal) to be gradually reduced and turned towards renewable energy.

UNITED NATIONS SUSTAINABLE DEVELOPMENT GOALS

The Sustainable Development Goals entered into force in January 2016. UNDP, the United Nations development programme, strives to implement its goals through its work in more than 170 countries and regions. The Sustainable Development Goals (SDGs), in other words the Global Goals, are a universal call to action to eradicate poverty, protect our planet, and ensure that all people live in peace and prosperity. Focusing on key areas of climate change, disaster risk and economic inequality, UNDP supports governments in integrating the Sustainable Development Goals into their national development plans and policies. The 7th title of the Sustainable Development Goals is “Accessible and Clean Energy”. Under this title, UNDP conveys the necessity of investing in clean energy sources such as solar, wind and thermal in order to ensure that everyone has access to accessible energy by 2030.

EUROPEAN GREEN DEAL

European Green Deal is a new growth strategy that aims to transform the EU by 2050 into a fair and prosperous society with no net greenhouse gas emissions and a modern, resource efficient and competitive economy, where economic growth is decoupled from resource use.

Article 2.1.2 of the Agreement is “Supplying Clean, Affordable and Secure Energy”. In this article, it is stated that further decarbonising the energy system is critical to reach climate objectives in 2030 and 2050; “The clean energy transition should involve and benefit consumers. Renewable energy sources will have an essential role. Increasing offshore wind production will be essential, building on regional cooperation between Member States. The smart integration of renewables, energy efficiency and other sustainable solutions across sectors will help to achieve decarbonisation at the lowest possible cost”.

As it is seen, the countries and the policy makers have taken decisions in the fight against the climate crisis with various protocols and agreements. However, it is debated whether these decisions are implemented or not.

On the one hand, many countries continue their efforts to increase their renewable energy investments, especially due to the decrease in investment costs. Financing models create new portfolios by focusing on the concept of sustainability. The carbon market, which has made a name for itself in recent years, continues to operate, although a full mechanism has not been formed yet.

CLIMATE CRISIS

The most important causes of global climate change, to be more clear, the main causes of the climate crisis are fossil fuel use, deforestation, and unplanned urbanization. This crisis, which is experienced as a result of the increase in the rate of carbon dioxide in the air, continues to cause many negativities to humanity. Droughts, floods, extreme weather events became more frequent. The rise in ocean and sea levels, the melting of glaciers and many other factors pose serious risks to animals and ecosystems as well as to all humanity. Efficient use of energy, increasing electricity production from renewable energy sources, preventing deforestation, evaluating waste as a value are at the forefront of what needs to be done to stop the climate crisis and take action quickly for a more livable world. Decarbonization of transportation on the basis of sustainability in urban transportation, reproduction of green areas, and disposal of wastes at their source are the mandatory duties of especially local governments.

CLIMATE CASES

In recent years, lawsuits related to climate change have been filed in many countries. Six hundred and fifty-four climate change lawsuits have been filed in the United States and more than two hundred and thirty in all other countries. Although there are no binding provisions regarding the right to live in a clean environment in the International Conventions on Human Rights, countries have frequently discussed this situation in their own legislation. In 2005, the Chairman of the Inuit Circumpolar Conference submitted a petition to the United States Commission on Human Rights seeking assistance in dealing with human rights abuses resulting from the effects of global warming and climate change. Moreover, the petition alleged that the largest emitter of greenhouse gas emissions in the United States at the time had violated the human rights of Eskimos by not releasing adequate greenhouse gas controls at the time (Watt-Cloutier, 2005). Although the Commission did not make a decision, the petition succeeded in drawing attention to the serious effects of global warming on the Eskimos and sparking further discussion about the human rights impacts of climate change (Osofsky, 2007). In another case, the negative contribution of greenhouse gases to global climate change was among the statements made by the court.

PUBLIC INTEREST

The concept of “public interest” is often mentioned in our legislation. According to this principle, which was established in French public law after the French Revolution of 1789 and later adopted by contemporary public law, “law is the public interest.” Every law duly made by the legislature is both in the public interest and in the public interest itself. Turkish Constitution contains the title of “public interest” and its subtitles are Utilization of Coasts, Land Ownership, Agriculture, Livestock and Protection of Employees in These Production Branches, Expropriation, and finally Nationalization and Privatization.

There are various perspectives on the concept of public interest. The view that favors individual-benefit argues that the public interest consists of the sum of individual benefits. According to the common-benefit view, it is not individuals’ realization of their own benefits, but the melting of their individual benefits into the common benefit. The concept of public interest expresses the common interests of a community and if these are encouraged, individual interests are not suppressed, on the contrary, it becomes possible for individuals to obtain benefits that are not possible to obtain in any other way. According to those who adopt the view benefit of society, there is no conflict between the benefit of the individual and the benefit of the community. In other words, it is not possible to talk about an individual benefit contrary to the benefit of society. According to this view, the reason why people live in society is that man is a social being and it is not possible for him to live alone.

SUPERIOR PUBLIC INTEREST

Superior public interest is a concept that emerged in order to be decisive for decision makers in cases where there is more than one (usually two) public interest. The concept of superior public interest does not exist in our legislation. According to this concept, the broader public interest takes precedence when two public interests compete or conflict with each other. Turkish Council of State declared that “During the judicial review of zoning plans, it is obligatory to consider the principles of “superior public interest”, as well as the principles of urban planning, planning principles and criteria of public interest, as well as the integrity of the zoning plan, its general structure, the characteristics of the area it covers and the protection of the environment”. Moreover, the Turkish Constitutional Court mentioned the concept of “national interest” in the Türk Telekom decision No. 2004/68-2005/104 on 23.12.2005.

UNIVERSAL PUBLIC INTEREST

The concept of “universal” in the dictionary of the Turkish Language Association has been defined as cosmic, related to the universe, concerning all humanity. The point should especially be highlighted is the part of “renewable energy that concerns all humanity”.

For nearly 40 years, many scientific studies on climate change have been and continue to be made. As a result of these studies, countries have determined their own policies and decisions have been taken in the fight against climate change. Problems arose at the point of implementation of these decisions and sufficient progress could not be made in this struggle, which concerns the entire planet. At this stage, climate change has passed into the dimension of “CRISIS”. From now on, it is necessary to open a new perspective to the views on the concept of public interest in line with the climate crisis-oriented thinking system. The climate crisis is not just a problem of a region, a geography or a country; but the problem of the whole world and all humanity. In our world, which is the only planet where the human race can survive in a healthy way, each renewable power plant which does not emit carbon in the electricity production phase, does not pollute the environment, does not threaten human and environmental health, creates employment, and provides energy independence and security of supply, especially to countries like our country that are foreign-dependent in electricity production carries “universal public interest”. It should be stated that the electricity to be produced from renewable energy sources, which are our country’s own resources, is not only in the interests of the people of our country, but also in the interests of all humanity, who see that there are other alternatives to fossil fuels and are less affected by the damage caused by fossil fuels to the world.

Finally, every study to be done regarding electricity/energy production from renewable energy sources carrying universal public interest should be supported by all countries both financially and in terms of legislation. This will clarify the common stance in the fight against the climate crisis.

Energy Law Research Institute

Chairperson of Environmental Law Board

Atty. Arsin DEMİR