Clean fight

Liquid fuels processed from crop plants such as oil palm have become the poisoned chalice of environmental ­policy. They were originally lauded as the answer to climate change, but are now frequently accused of causing more problems than they solve - from deforestation to soaring food prices and violent ­conflict.

Whether biofuels turn out to be cure or catastrophe will depend in part on whether the law and policy governing their production and use is designed intelligently and enforced effectively. Environmental lawyers have a crucial role to play in ensuring this happens.

Energy switch

The EU Renewable Energy Directive decrees that, by 2020, 10 per cent of ­transport fuels across the EU should come from renewable sources. It is predicted that much of this 10 per cent figure will be met using biofuels.

This policy-driven demand, coupled with subsidies under the directive and ­agricultural legislation, are driving huge investment in biofuels for the EU ­marketplace. Development organisation ActionAid estimates that, if the target is met, consumption of ­biofuels in the EU will reach 55-billion litres in 2020. It also ­calculates that 1.1-million hectares of land in Africa has already been given over to ­biofuel production.

The enactment of the directive was accompanied by fierce debate over the cracks in biofuels’ green credentials. A major issue is whether biofuels really represent reductions in greenhouse gas emissions compared with fossil fuel equivalents.

Once you account for the water, fertiliser, processing chemicals and energy used in growing, extracting and transporting the biofuel, its lifecycle emissions may match or even exceed those of fossil fuels. Ploughing up forests, grasslands and wetlands to make way for plantations adds to greenhouse gas emissions attributable to biofuels by ­releasing sequestered carbon from soil and plant materials into the atmosphere. ­Conversion of natural habitats rich in endangered species destroys biodiversity.

Current legislation attempts to tackle these threats by incorporating sustainability ­criteria, so that only biofuels securing a 35 per cent reduction in emissions, and guaranteed not to have been produced on biodiverse lands or on high-carbon lands converted after January 2009, may count towards the 10 per cent target, or receive subsidies.
ClientEarth was asked recently by BirdLife International, ActionAid and Nature Kenya to advise on whether the planned conversion of 50,000 hectares of ancient coastal forest in the Dakatcha ­woodlands of Eastern Kenya would result in biofuels production breaching the ­sustainability criteria. The conclusion was that it would.

Dakatcha is one of only two known ­habitats globally for some severely ­endangered bird species. It also provides a home to several thousand people who farm patches of the land in small communities. Expert analysis of the lifecycle emissions of the biofuel to be produced from Dakatcha showed that these could be up to six times higher than fossil fuel equivalents, largely as a result of the effects of converting the ­forest vegetation. Dakatcha biofuels would also fall foul of requirements prohibiting ­conversion of land recognised for its ­biodiversity value.

Is it safe?

Sustainability criteria are crucial tools for environmentalists to ensure that the ill-effects of inappropriate biofuels are avoided. It is crucial also for investors to be aware that products face significant disadvantages on the EU market if projects do not secure compliance with these environmental ­standards.

The Dakatcha case demonstrated that the sustainability criteria currently ­included in the directive can help to identify problem biofuels, but in certain respects they fall woefully short. They have no standards for social sustainability - ie to combat the ­displacement of local communities to make way for industrial plantations.

They also fail to account for the ­phenomenon of indirect land use change, whereby lucrative biofuel crops displace food crops from existing agricultural land so that natural areas are turned over to agricultural production in turn. Such indirect land use changes increase dramatically the carbon footprint of biofuels.

As well as making sure existing standards are enforced to keep bad biofuels out of the EU, environmental lawyers have another job of identifying where gaps in the ­legislation will continue to encourage ­biofuels with destructive effects. Unfortunately this is a task currently hampered by lack of access to information being used by the EU to inform policy development.

ClientEarth has three cases pending before the EU General Court, seeking access to scientific studies on the climate impacts of biofuels, including through indirect land use change, and to reports on voluntary ­certification schemes destined to be a key mechanism for demonstrating ­sustainability compliance. These documents should be available to stakeholders under EU access to information rules, but have so far been withheld.

The story so far illustrates that, to achieve environmental protection aims, law must be led by accurate science and open debate, ensuring negative trade-offs are identified.

Renewable energy goals are needed, but mistakes are being made with biofuels - and now is the time to correct them.

Susie Wilks is a lawyer focusing on ­biodiversity at ClientEarth