6. Nordic Countries: D. Sweden

6. Nordic Countries: D. Sweden (1) Legislative Measures of International Interest (A) New Legislation on Waste Management In Chapter 2 of the Environmental Code, the main environmental legislation in Sweden, the general rules of consideration have been updated. Chapter 2, paragraph 5, and Chapter 15, paragraph 10, now explicitly contain the ‘waste hierarchy,’ which is the European Union’s (EU) approach to waste management. The waste hierarchy sets the following order of priority when managing waste: prevention, (preparing for) reuse, recycling, recovery, and disposal. (B) Access to Justice for Non-Governmental Organizations: The Swedish Wolf Policy As reported in the 2016 edition of this Yearbook, the hunting decision regarding wolves was previously not appealable to a court of law. The Supreme Administrative Court declared that the principle of effective judicial protection in relation to strict protection under EEC Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive) requires that decisions regarding protected species can be brought to national courts. The Supreme Administrative Court, therefore, found the restriction of appeal in the hunting regulation to be in conflict with EU law. Since the Supreme Administrative Court decided that the appeal ban in paragraph 58 of the Hunting Ordinance (1987:905) was in breach of EU law in regard to hunting for a species protected by the Habitats Directive, the government has acted and changed that paragraph in the Hunting Ordinance. Hunting decisions on species protected by the Habitats Directive and EU Directive 2009/147 on the Conservation of Wild Birds may be appealed to a general administrative court and the Environmental Protection Agency will no longer be part of the appellate chain. (2) Policy Measures of International Interest (A) Water Quality: After the Weser Case The European Commission has sent Sweden a letter of formal notice and questioned the Swedish implementation of EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy (Water Framework Directive). Following the recent case from the Court of Justice of the European Union (CJEU), Case C-461/13 (Weser case), the Commission questioned if Sweden has implemented the Water Framework Directive correctly as the environmental objectives in Article 4 lack a binding legal effect in the Swedish legislation. In Case C-461/13, the CJEU concluded that the objectives in Article 4 are binding for the member states, and, in Sweden, the Article 4 objectives are not binding in the manner that the CJEU views the objectives. Furthermore, in Sweden, the exemption from achieving the objectives in Article 4, which is found in Article 4(7), has been implemented in Sweden in a manner that only allows the Swedish water authorities to grant an exemption from the objectives. This means that when a court tries to issue a permit, or a review, for water operations it cannot consider the exemptions according to Swedish law, which the Commission question as a proper implementation (see also Case C-346/14, Schwarze Sulm). The Swedish government responded to the Commission’s questions by stating that the government is preparing to suggest changes to both the legal status of the Article 4 objectives and the system of permit review, which then would include Article 4(7). What legal changes will be suggested by the government is not yet clear. That the Swedish legislation on water operations is malfunctioning has been indicated by several official reports of the Swedish government. Still, the current government is the fourth one, so far, to not make any substantial changes to either the binding effects of the Article 4 objectives or the system of permit review of water operations, which are particularly malfunctioning. A recent official report of the Swedish government stated that with the current rate of review it would take 800 years to review all permits to hydropower stations/dams that are not up to date with current environmental legislation (including the Water Framework Directive). As there are other water operations, and hydropower stations/dams, that also are not up to date with current environmental legislation, the time frame for reviewing all permits to water operation could be significantly longer then 800 years if no changes are made to the permit review system. (B) Governance of the Swedish Wolf Population As reported in previous editions of this Yearbook (see the 2012, 2013, 2014, 2015, and 2016 editions), the Swedish wolf policy is a frequently discussed subject in Sweden. In a reasoned opinion (Case 2010/4200), the Commission has requested that Sweden bring wolf hunting into line with EU legislation. Wolves are strictly protected in Sweden, listed in Annex IV and protected by Article 12 of the Habitats Directive. Derogation from strict protection may only be made if the requirements set out in Article 16(1) of the Habitats Directive are fulfilled. Even if the Swedish wolf population is growing, it still has a questionable genetic status, and, therefore, the government doubts if the population has achieved a favourable conservation status. Sweden responded to the reasoned opinion by arguing that there was no systemic practice as the approved hunting was inhibited from 2012–14 by the Swedish courts, that alternatives to hunting are not economical or ethical, and that the hunting that takes place is under strict supervised conditions—for example, no hunting is allowed in areas that are inhabited by genetically important wolves. Sweden also argued that the wolf population has achieved ‘favourable conservation status.’ After Sweden responded to the reasoned opinion, the Commission refrained from referring Sweden to the CJEU. Recently, the Supreme Administrative Court tried whether the Swedish wolf populations have achieved a ‘favourable conservation status’ and whether the County Administrative Board of Värmland’s decision to allow a license for hunting wolves in 2016 was justified (Case no. 2406-2408-16 2628-2630-16). According to the hunting regulation, licensed hunting for wolves is possible on the condition that there is no other satisfactory solution and the hunting is not detrimental to the maintenance of a favourable conservation status of the species’ populations in their natural range. The hunt must also be appropriate to the population size and composition as well as being selective and under strictly controlled conditions. The Supreme Administrative Court found that these conditions were met when the 2016 decision on licensed hunting was taken in Värmland and, therefore, should have been approved. (C) Sweden versus the Commission As reported in the 2016 edition of this Yearbook, Sweden successfully brought the Commission to the CJEU. The reason was that the Commission had failed to specify scientific criteria for the determination of endocrine-disrupting properties (Case T-521/14). The Swedish government took the Commission to court over a lead chromates decision. In September, the Commission decided to authorize a business to sell pigments containing lead chromates for use within the EU, even though adequate alternatives are available. Lead is one of the most poisonous substances known to humankind. The chemical regulations in the EU clearly state that authorization for this kind of substance may only be granted where there are no available alternatives. Such alternatives are available in the case of lead chromates, a fact demonstrated by Swedish businesses and others that have phased out their use. Because lead pigments often are cheaper than the alternatives, businesses that choose to sell these paints will gain a competitive advantage over businesses that have chosen to remove hazardous lead chromates. The Commission’s decision thus sends a signal that it is not worthwhile for businesses to phase out particularly hazardous substances. By referring the Commission to the CJEU, the government’s intention is to defend common EU regulations, people’s health, and those businesses that live up to their environmental responsibilities. (D) New Swedish Environmental Policy for the Arctic The Arctic is an irreplaceable asset of local, national, and global significance. Sweden believes that there is a need to strengthen and improve security and environmental protection in the Arctic. Sweden intends to work to ensure that all development in the Arctic is environmentally sustainable. The priorities of the Swedish government are to work towards better protection of biodiversity and ecosystems on land and at sea, enhanced climate efforts, and sustainable use of resources. (E) New Energy Policy A new policy agreement on energy policy has been achieved by a majority of the parties of Swedish Riksdag (the Swedish Social Democratic Party, the Moderate Party, the Swedish Green Party, and the Centre Party and the Christian Democrats). The main pillars of the new energy policy upon which Sweden’s energy system should be built are the same three pillars as those of the energy cooperation in the EU. The policy therefore aims to combine: (1) ecological sustainability; (2) competitiveness; and (3) security in the supply of energy. Based on these three pillars, the aim is that Sweden should have a robust electricity network with high security of supply and low environmental impact, with electricity at competitive prices. The main target in the policy is that by 2045 Sweden is to be releasing no net emissions of greenhouse gases into the atmosphere and should, thereafter, achieve negative emissions. To reach this target by 2045, Sweden is to have by 2040 100 percent renewable electricity production. Furthermore, an energy-efficiency target for the period 2020–30 will be produced and adopted no later than 2017. Since Sweden still depends on nuclear power (by 2014, nuclear power provided 41 percent of Sweden’s energy production), the policy explicitly states that the policy targets are not intended to provide a deadline for banning nuclear power or that the policy will result in political decisions of closing nuclear power plants. (F) Implementation of EC Regulation 1907/2006 Concerning the Regulation, Evaluation, and Authorisation of Chemicals (REACH Regulation) Although the REACH Regulation contains a registration system, Sweden has chosen to retain the national product register. The reason is that the register is important as a basis for supervision, inspection, and control. The Swedish register also provides an overview of the flows and use of chemicals in Sweden, a feature that is important for the Swedish authorities that try to reduce the environmental impact of chemicals. The Swedish Supreme Court asked the CJEU if the Swedish register was compatible with EU law. The case was caused due to the fact that a Canadian oil company brought 392 tons of chemical products into Sweden without notifying the Swedish product register (<https://chemicalwatch.com/45933/european-court-rules-in-favour-of-swedish-product-register>). The Supreme Court asked the CJEU whether the REACH Regulation should be interpreted to mean that the regulation prevents national rules that make it mandatory for importers to register with the competent national authority, as the importer already had an obligation under the REACH Regulation to register with the European Chemicals Agency. The CJEU concluded that the Swedish registration requirement does not conflict with the REACH Regulation, as it does not constitute a prerequisite for importing the products to Sweden (namely, notification can be made after importation, but certain information must be submitted no later than when the operation starts, and other information by 28 February of the calendar year of imports). The Swedish registration requirement also concerns other chemicals than those included under the REACH Regulation. Furthermore, the Swedish product register helps achieve REACH aims to ensure a high level of protection of human health and the environment as well as the goal of such free circulation of substances on the internal market, including verification that the handling of these products is done in a safe manner in the member state and by evaluating treatment. The Swedish Supreme Court (Case B 2708-13, 21 December 2016), by following the CJEU, stated that it is not contrary to the REACH Regulation that the Swedish rules oblige the professional for a chemical product to report entry into the Swedish Chemicals Agency for registration in the product register. (3) International Agreements (A) The Riksdag Approves the Paris Climate Agreement The Riksdag approved the Paris Agreement, which means that Sweden, through the government, now can ratify the Paris Agreement. The government ratified the Paris Agreement on 12 November 2016. (B) Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity (Nagoya Protocol) The Nagoya Protocol is an international agreement that aims to share the benefits arising from the utilization of genetic resources in a fair and equitable way. It entered into force on 12 October 2014. The government decided that Sweden will ratify the Nagoya Protocol as part of the Convention on Biological Diversity. The proposal essentially means that the EU regulation on the subject is finalized as it now includes a penal provision. No other international agreements of significance were ratified or signed in 2016. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Yearbook of International Environmental Law Oxford University Press

6. Nordic Countries: D. Sweden

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Abstract

(1) Legislative Measures of International Interest (A) New Legislation on Waste Management In Chapter 2 of the Environmental Code, the main environmental legislation in Sweden, the general rules of consideration have been updated. Chapter 2, paragraph 5, and Chapter 15, paragraph 10, now explicitly contain the ‘waste hierarchy,’ which is the European Union’s (EU) approach to waste management. The waste hierarchy sets the following order of priority when managing waste: prevention, (preparing for) reuse, recycling, recovery, and disposal. (B) Access to Justice for Non-Governmental Organizations: The Swedish Wolf Policy As reported in the 2016 edition of this Yearbook, the hunting decision regarding wolves was previously not appealable to a court of law. The Supreme Administrative Court declared that the principle of effective judicial protection in relation to strict protection under EEC Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive) requires that decisions regarding protected species can be brought to national courts. The Supreme Administrative Court, therefore, found the restriction of appeal in the hunting regulation to be in conflict with EU law. Since the Supreme Administrative Court decided that the appeal ban in paragraph 58 of the Hunting Ordinance (1987:905) was in breach of EU law in regard to hunting for a species protected by the Habitats Directive, the government has acted and changed that paragraph in the Hunting Ordinance. Hunting decisions on species protected by the Habitats Directive and EU Directive 2009/147 on the Conservation of Wild Birds may be appealed to a general administrative court and the Environmental Protection Agency will no longer be part of the appellate chain. (2) Policy Measures of International Interest (A) Water Quality: After the Weser Case The European Commission has sent Sweden a letter of formal notice and questioned the Swedish implementation of EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy (Water Framework Directive). Following the recent case from the Court of Justice of the European Union (CJEU), Case C-461/13 (Weser case), the Commission questioned if Sweden has implemented the Water Framework Directive correctly as the environmental objectives in Article 4 lack a binding legal effect in the Swedish legislation. In Case C-461/13, the CJEU concluded that the objectives in Article 4 are binding for the member states, and, in Sweden, the Article 4 objectives are not binding in the manner that the CJEU views the objectives. Furthermore, in Sweden, the exemption from achieving the objectives in Article 4, which is found in Article 4(7), has been implemented in Sweden in a manner that only allows the Swedish water authorities to grant an exemption from the objectives. This means that when a court tries to issue a permit, or a review, for water operations it cannot consider the exemptions according to Swedish law, which the Commission question as a proper implementation (see also Case C-346/14, Schwarze Sulm). The Swedish government responded to the Commission’s questions by stating that the government is preparing to suggest changes to both the legal status of the Article 4 objectives and the system of permit review, which then would include Article 4(7). What legal changes will be suggested by the government is not yet clear. That the Swedish legislation on water operations is malfunctioning has been indicated by several official reports of the Swedish government. Still, the current government is the fourth one, so far, to not make any substantial changes to either the binding effects of the Article 4 objectives or the system of permit review of water operations, which are particularly malfunctioning. A recent official report of the Swedish government stated that with the current rate of review it would take 800 years to review all permits to hydropower stations/dams that are not up to date with current environmental legislation (including the Water Framework Directive). As there are other water operations, and hydropower stations/dams, that also are not up to date with current environmental legislation, the time frame for reviewing all permits to water operation could be significantly longer then 800 years if no changes are made to the permit review system. (B) Governance of the Swedish Wolf Population As reported in previous editions of this Yearbook (see the 2012, 2013, 2014, 2015, and 2016 editions), the Swedish wolf policy is a frequently discussed subject in Sweden. In a reasoned opinion (Case 2010/4200), the Commission has requested that Sweden bring wolf hunting into line with EU legislation. Wolves are strictly protected in Sweden, listed in Annex IV and protected by Article 12 of the Habitats Directive. Derogation from strict protection may only be made if the requirements set out in Article 16(1) of the Habitats Directive are fulfilled. Even if the Swedish wolf population is growing, it still has a questionable genetic status, and, therefore, the government doubts if the population has achieved a favourable conservation status. Sweden responded to the reasoned opinion by arguing that there was no systemic practice as the approved hunting was inhibited from 2012–14 by the Swedish courts, that alternatives to hunting are not economical or ethical, and that the hunting that takes place is under strict supervised conditions—for example, no hunting is allowed in areas that are inhabited by genetically important wolves. Sweden also argued that the wolf population has achieved ‘favourable conservation status.’ After Sweden responded to the reasoned opinion, the Commission refrained from referring Sweden to the CJEU. Recently, the Supreme Administrative Court tried whether the Swedish wolf populations have achieved a ‘favourable conservation status’ and whether the County Administrative Board of Värmland’s decision to allow a license for hunting wolves in 2016 was justified (Case no. 2406-2408-16 2628-2630-16). According to the hunting regulation, licensed hunting for wolves is possible on the condition that there is no other satisfactory solution and the hunting is not detrimental to the maintenance of a favourable conservation status of the species’ populations in their natural range. The hunt must also be appropriate to the population size and composition as well as being selective and under strictly controlled conditions. The Supreme Administrative Court found that these conditions were met when the 2016 decision on licensed hunting was taken in Värmland and, therefore, should have been approved. (C) Sweden versus the Commission As reported in the 2016 edition of this Yearbook, Sweden successfully brought the Commission to the CJEU. The reason was that the Commission had failed to specify scientific criteria for the determination of endocrine-disrupting properties (Case T-521/14). The Swedish government took the Commission to court over a lead chromates decision. In September, the Commission decided to authorize a business to sell pigments containing lead chromates for use within the EU, even though adequate alternatives are available. Lead is one of the most poisonous substances known to humankind. The chemical regulations in the EU clearly state that authorization for this kind of substance may only be granted where there are no available alternatives. Such alternatives are available in the case of lead chromates, a fact demonstrated by Swedish businesses and others that have phased out their use. Because lead pigments often are cheaper than the alternatives, businesses that choose to sell these paints will gain a competitive advantage over businesses that have chosen to remove hazardous lead chromates. The Commission’s decision thus sends a signal that it is not worthwhile for businesses to phase out particularly hazardous substances. By referring the Commission to the CJEU, the government’s intention is to defend common EU regulations, people’s health, and those businesses that live up to their environmental responsibilities. (D) New Swedish Environmental Policy for the Arctic The Arctic is an irreplaceable asset of local, national, and global significance. Sweden believes that there is a need to strengthen and improve security and environmental protection in the Arctic. Sweden intends to work to ensure that all development in the Arctic is environmentally sustainable. The priorities of the Swedish government are to work towards better protection of biodiversity and ecosystems on land and at sea, enhanced climate efforts, and sustainable use of resources. (E) New Energy Policy A new policy agreement on energy policy has been achieved by a majority of the parties of Swedish Riksdag (the Swedish Social Democratic Party, the Moderate Party, the Swedish Green Party, and the Centre Party and the Christian Democrats). The main pillars of the new energy policy upon which Sweden’s energy system should be built are the same three pillars as those of the energy cooperation in the EU. The policy therefore aims to combine: (1) ecological sustainability; (2) competitiveness; and (3) security in the supply of energy. Based on these three pillars, the aim is that Sweden should have a robust electricity network with high security of supply and low environmental impact, with electricity at competitive prices. The main target in the policy is that by 2045 Sweden is to be releasing no net emissions of greenhouse gases into the atmosphere and should, thereafter, achieve negative emissions. To reach this target by 2045, Sweden is to have by 2040 100 percent renewable electricity production. Furthermore, an energy-efficiency target for the period 2020–30 will be produced and adopted no later than 2017. Since Sweden still depends on nuclear power (by 2014, nuclear power provided 41 percent of Sweden’s energy production), the policy explicitly states that the policy targets are not intended to provide a deadline for banning nuclear power or that the policy will result in political decisions of closing nuclear power plants. (F) Implementation of EC Regulation 1907/2006 Concerning the Regulation, Evaluation, and Authorisation of Chemicals (REACH Regulation) Although the REACH Regulation contains a registration system, Sweden has chosen to retain the national product register. The reason is that the register is important as a basis for supervision, inspection, and control. The Swedish register also provides an overview of the flows and use of chemicals in Sweden, a feature that is important for the Swedish authorities that try to reduce the environmental impact of chemicals. The Swedish Supreme Court asked the CJEU if the Swedish register was compatible with EU law. The case was caused due to the fact that a Canadian oil company brought 392 tons of chemical products into Sweden without notifying the Swedish product register (<https://chemicalwatch.com/45933/european-court-rules-in-favour-of-swedish-product-register>). The Supreme Court asked the CJEU whether the REACH Regulation should be interpreted to mean that the regulation prevents national rules that make it mandatory for importers to register with the competent national authority, as the importer already had an obligation under the REACH Regulation to register with the European Chemicals Agency. The CJEU concluded that the Swedish registration requirement does not conflict with the REACH Regulation, as it does not constitute a prerequisite for importing the products to Sweden (namely, notification can be made after importation, but certain information must be submitted no later than when the operation starts, and other information by 28 February of the calendar year of imports). The Swedish registration requirement also concerns other chemicals than those included under the REACH Regulation. Furthermore, the Swedish product register helps achieve REACH aims to ensure a high level of protection of human health and the environment as well as the goal of such free circulation of substances on the internal market, including verification that the handling of these products is done in a safe manner in the member state and by evaluating treatment. The Swedish Supreme Court (Case B 2708-13, 21 December 2016), by following the CJEU, stated that it is not contrary to the REACH Regulation that the Swedish rules oblige the professional for a chemical product to report entry into the Swedish Chemicals Agency for registration in the product register. (3) International Agreements (A) The Riksdag Approves the Paris Climate Agreement The Riksdag approved the Paris Agreement, which means that Sweden, through the government, now can ratify the Paris Agreement. The government ratified the Paris Agreement on 12 November 2016. (B) Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity (Nagoya Protocol) The Nagoya Protocol is an international agreement that aims to share the benefits arising from the utilization of genetic resources in a fair and equitable way. It entered into force on 12 October 2014. The government decided that Sweden will ratify the Nagoya Protocol as part of the Convention on Biological Diversity. The proposal essentially means that the EU regulation on the subject is finalized as it now includes a penal provision. No other international agreements of significance were ratified or signed in 2016. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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Yearbook of International Environmental LawOxford University Press

Published: Dec 28, 2017

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