n general, a European Directive is intended to be a framework law. The system has its advantages—it speeds up decision making and gives some freedom to EU countries in the way they translate EU law into national law. On the other hand it provokes more interpretation and the need for implementation rulings. The European Renewable Energy Directive is not a classical framework law, considering the many detailed and complex articles and annexes. Many articles are very general or vague and, for both reasons, the EC decided more than a year ago to issue two communications for guidance on the RED. Such documents are rare, not in the least because the view expressed in such a document does not have the same legal value as the law it intends to clarify.

Writing the documents took six months longer than envisaged, which according to well-informed sources was caused by haggling among EC services on what constitutes a palm tree. They are finally out. One is on sustainability schemes and their certification, and the second on practical implementation of the biofuels sustainability scheme and rules for qualifying biofuels. (Both documents can be found at http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2010:160:SOM:EN:HTML)

One seemingly banal issue in the communication on qualifying biofuels is the definition of wastes and residues. Concerns about biofuels from food crops were addressed in the RED by introducing the concept of “double counting.” A gallon of biofuel produced from wastes, residues, non-food cellulosic material, and ligno-cellulosic material is to be given double the credit as other biofuels, and be considered to have zero life-cycle greenhouse gas emissions. Thus obligated parties (oil companies) would find waste-based biofuels very attractive to use in meeting their targets.

The RED doesn’t say what is meant by wastes and residues, however. The definition given in the communication says “waste can be understood as any substance or object which the holder discards or intends or is required to discard. Raw materials that have been intentionally modified to count as waste (e.g. by adding waste material to a material that was not waste) should not be considered as qualifying.”
For me, a philosophical question arises. Does waste remain waste if it becomes a valuable raw material for producing another product? If waste has an economic use, is it then still waste? I don’t think so.
The clarification on residues is far from clarifying. The commission says: “A processing residue is a substance that is not the end product(s) that a production process directly seeks to produce. It is not a primary aim of the production process and the process has not been deliberately modified to produce it. Examples of residues include crude glycerin, tall oil pitch and manure.” This definition is far from clear, nor is it clear what authority—EU, national or industry—is to decide whether a product is a residue or not when disagreement arises. The European ethanol industry prefers either a clear definition and/or a list that makes the rules of the game clear. If the regulator does not further clarify what is intended by the law, this part of the RED will become really messy.

The Dutch—the only EU member with implementation rules on double counting to date—have a definition that makes much more sense: “Double counting is only for those biofuels that are produced from material that has no alternative use, or of which the permit holder demonstrates that there is no market opportunity based on a market study.” The Dutch also included a list of “products” that are considered either waste or residue.

So far the European Commission has resisted ethanol industry requests for further clarification via an addendum to the communication or by issuing an implementation decision. Lacking that, the industry will need to lobby every single EU member state to adopt consistent implementation rules on residues (à la the Dutch), or develop its own residue standard. In either case we can expect creative lobbying from the oil guys to keep the rules as vague as possible. After all they have much to gain by the double counting instrument.

Robert Vierhout is the secretary-general of eBIO, the European Bioethanol Fuel Association. Reach him at vierhout@ebio.org.