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Viewpoint: Is science (and not politics) finally driving the EU Taxonomy? : Perspectives

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06 May 2021

The recent assessment by the EU’s scientific body, the Joint Research Centre, that nuclear energy does no more harm to human health or the environment than any other power-producing technology considered to be sustainable may be a sign of the green stamp of approval needed for the inclusion of nuclear in the EU Taxonomy on sustainable finance, write Elina Teplinsky, Vincent Zabielski and Victoria Judd, partner, special counsel and counsel, at Pillsbury Winthrop Shaw Pittman LLP.

Victoria Judd, Elina Teplinsky and Vincent Zabielski (Image: Pillsbury Winthrop Shaw Pittman LLP)

“The EU Taxonomy Regulation, a system that classifies economic activities as environmentally sustainable to help the EU meet its Green Deal objectives, has emerged as an increasingly complex and politically fraught framework despite what should be a science-based approach to climate change mitigation.

The biggest controversy surrounds the question of whether nuclear energy and natural gas should be included in the Taxonomy and thus classified as sustainable. With respect to nuclear specifically, while a number of EU members see nuclear energy as a key tool in meeting their decarbonisation objects, others remain opposed to granting nuclear the green label on general political grounds, frequently citing concerns surrounding the permanent disposal of used nuclear fuel. In recent years, this has seen the EU split into two camps, with pro-nuclear countries like France, Hungary, and Poland locking horns with the likes of anti-nuclear Austria and Germany.

The central difficulty is that at present, the EU Taxonomy Regulation does not address whether nuclear power should be considered a sustainable economic activity across the whole lifecycle of a nuclear plant. Whilst a prior report from an EU Technical Expert Group (TEG) previously confirmed nuclear energy to be a “climate neutral energy”, the report concluded that further research was necessary to determine whether nuclear met the EU’s ‘do no significant harm’ (DNSH) criteria when considering the lifecycle as a whole – which includes the safe disposal of spent fuel and radioactive waste.

Calling in the cavalry


Failure by the TEG to produce a conclusive answer to the question on nuclear energy’s overall sustainability spurred much debate amongst EU members. Had nuclear energy been found to cause ‘significant harm’ to the environment under EU guidelines, allowances for governmental support of nuclear energy plants would likely have dropped drastically under EU funding rules and the global nuclear industry would have taken a serious reputation hit.

In response, and in a much-needed return to decisions informed by science over politics, the EU Commission recently appointed its in-house science body, the Joint Research Council (JRC) to settle the fallout from the TEG finding. Its primary objective was to produce a technical report specifically regarding the DNSH aspects surrounding nuclear energy, and to assess in greater detail whether it should be classified as ‘sustainable’ or a ‘transition’ technology.

The report was released in March 2021 and confirmed that nuclear falls under the DNSH guidelines. It found no evidence that nuclear does more harm to either human health or the environment than other technologies already included in the Taxonomy Regulation.

With regards to nuclear waste specifically, the JRC revealed a broad scientific consensus that the EU’s current disposal strategy, which places high-level, long-lived radioactive waste inside deep geologic formations is considered an appropriately safe means of isolating radioactive waste from the biosphere long-term. The report drew comparisons to the sequestration of carbon in carbon capture technology, which also uses long-term disposal of waste in geological facilities.

While the JRC report has received a warm welcome from the nuclear industry and the environmental advocates who view nuclear as a key carbon-free energy source, further administrative hurdles lie ahead before nuclear energy is accepted as sustainable under the EU Taxonomy Regulation.

Before any recommendations in the report can be put into effect, it must be reviewed by experts on radiation and protection and waste management (to comply with under Article 31 of the Euratom Treaty) and the EU’s Scientific Committee on Health, Environmental and Emerging Risks (SCHEER).

Despite the fact that the reports from both of these bodies are expected by end of June 2021, the EU Commission made the decision last month to proceed with the Taxonomy on a piecemeal basis while the nuclear question is addressed.  On 21 April, just in time for Earth Day, the Commission published the first EU Taxonomy Delegated Act, classifying a certain subset of economic activities in the energy section such as solar, wind, tidal, hydro and geothermal as sustainable and leaving others, including nuclear, to be covered by a complementary Delegated Act to be issued by summer of 2021.

The statement in the Commission’s 21 April communication that nuclear energy will be addressed in a separate Delegated Act on its face looks favourable for nuclear supporters. The statement appears to suggest that nuclear will be included in the Taxonomy. Further, the Taxonomy only includes activities either deemed as sustainable (i.e., inherently low carbon) or transitional (i.e., economically feasible low-carbon alternatives that need to be decarbonised as part of the energy transition).

It is difficult to see a scenario where nuclear energy would be labelled a transitional activity because it is inherently low carbon. However, given the thorny politics surrounding nuclear energy in the EU, that optimism has to be met with some caution. Reviews by the Euratom Article 31 and SCHEER experts are still outstanding, and any negative conclusions by those bodies could change the course of the inclusion of nuclear in the Taxonomy. Further, it is unclear how nuclear energy will be described in the separate Delegated Act and whether any limitations or conditions for labelling nuclear as sustainable will be applied.

While the review process continues, nuclear proponents – whether governments, private sector or NGOs – would benefit from continuing to strongly urge for a transparent and science-based approach for the continued development of the Taxonomy.

Effects on the ground


The conclusion of a well-respected scientific body like the JRC that nuclear is just as sustainable as renewables is undoubtedly a very positive development for nuclear supporters.  If the JRC’s conclusion leads to the inclusion of nuclear in the EU taxonomy, this will represent a hugely significant moment in the EU’s decarbonisation efforts – a rejection of politically charged debate on sustainability and a return to scientific-based decision making.

The inclusion of nuclear in the EU Taxonomy will facilitate ongoing government support to new nuclear projects in Europe, as EU funding rules evolve to favour projects using sustainable technology. Poland, the Czech Republic and Bulgaria all have plans to build new nuclear reactors to decrease their reliance on coal and meet the EU’s climate goals, whilst Finland and Hungary have already executed contracts for new nuclear units and secured siting permits for the facilities. It will also support private investment into nuclear technologies and projects, given the Taxonomy’s goals to stimulate investor and financial services interests to invest in projects and activities with a positive environmental impact.

If nuclear is determined by the EU to be sustainable, the effect will not just be limited to the EU, as other stakeholders across the world refer to the EU’s findings in respect of nuclear energy for guidance. Indeed, the EU Taxonomy Directive is regarded as influential on the global stage as a helpful standardisation exercise, and no doubt the findings on nuclear energy will be equally influential.

Finally, the impact will likely also be felt beyond the nuclear industry. The unveiling last year of the EU Hydrogen Strategy – which seeks to create a green hydrogen market to support decarbonisation in the electricity, transportation, and buildings sectors across the EU – has largely focused on the production of hydrogen through renewables so far. However, due to nuclear energy’s ability to produce heat as well as electricity whilst maintaining a small geographic footprint, there is an immense opportunity to produce nuclear fuelled hydrogen at large-scales in an efficient and low-cost manner. It would appear, then, that hydrogen produced with nuclear energy can now be termed “green hydrogen”, representing a positive step for the hydrogen economy.

Positive signs for the future


In order to successfully find a viable solution to the climate change challenge, all technologies at mankind’s disposal must be properly utilised and leveraged. With around 40% of the EU’s low carbon electricity coming from nuclear, and now official recognition that it does no more harm to human health or the environment than other sustainable power-producing technology, nuclear should be set to continue to be an essential energy source moving forward, both for the EU and globally.

The road ahead is paved with scepticism, and likely further disagreement. However, it seems our path forwards will be increasingly informed more by science than by politics, and this in itself is cause for celebration.”



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Immigration judges decide who gets into the U.S. They say they’re overworked and under political pressure.

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With a historic increase in the number of migrants trying to cross the U.S. border, immigration judges on the front lines told NBC News the system is reaching a breaking point.

“In essence, we are holding death penalty cases in a traffic court setting,” Judge Dana Leigh Marks said, adding that many judges battle burnout daily.

Nationwide, there are about 500 immigration judges. They preside over asylum cases, meaning they decide who gets to stay in the U.S. and who must be deported. When President Joe Biden took office, there was already a backlog of 1.3 million cases, and the monthly crossing totals keep rising.

Among the judges’ concerns, as described to NBC News: There aren’t enough of them; they need more support staff; and they say they’ve felt political pressure from their bosses at the Justice Department. During the Trump administration, that meant pressure to enter orders of removal, even as many asylum seekers assert they risk death if they return to their home countries.

Judges in federal trial courts are effectively appointed for life, which can insulate them from pressure. Immigration judges, however, are Justice Department employees who are appointed by and answer to the Attorney General, a political appointee.

The immigration judges are represented by a union, but now that union is in danger of ceasing to exist because of an action initiated under Trump.

Migrants who are applying for asylum in the U.S. go through a processing area at a new tent courtroom at the Migration Protection Protocols Immigration Hearing Facility on Sept. 17, 2019, in Laredo, Texas.Eric Gay / AP file

“We are in the legal fight for our life to ensure that our decisional independence is valued and maintained,” said Judge Amiena Khan, “[and] that we as judges are able to do our jobs.”

Khan is the president of the judges’ union, the National Association of Immigration Judges. The NAIJ has been the judges’ collective bargaining representative since 1979, but Trump’s second attorney general, William Barr, petitioned to decertify the union. Eventually, the Federal Labor Relations Authority (FLRA) overturned decades of prior precedent by ruling that immigration judges are management officials who may not be part of any collective bargaining unit.

The union is contesting the ruling. The next step is for the FLRA to rule on the union’s motion for reconsideration.

This month, dozens of Democrats in Congress signed a letter to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco urging them to rescind Barr’s petition.

In testimony before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies last week, Garland was asked about the creation of an independent immigration court — separate from the Justice Department. While he said that “immigration judges should be left alone to do their work,” he said he hadn’t thought much about the issue of whether to structure the system differently — and that it should be a question for Congress.

A DOJ spokesperson told NBC News that the attorney general has not taken a position on whether immigration judges should be allowed to unionize.

The Biden administration has called for hiring 100 new immigration judges as part of its budget.

But with their union in jeopardy, four judges — Marks, Khan, and two retired judges — told NBC News they’re fighting for their judicial independence.

“We should not be used as a tool of law enforcement,” said Marks, who works in San Francisco. “That is not how Congress envisioned the immigration courts should play a role in the immigration system.”

She said quotas were imposed to quickly clear cases, which threatens due process.

“If I have to move a case quickly through the docket, then that person doesn’t have time to find an attorney to represent them,” she said, because migrants are not given a court-appointed lawyer.

And not having a lawyer, experts say, often means a migrant loses their asylum case.

Judge Charles Honeyman worked in immigration courts in New York and Philadelphia until he retired last year during the Trump administration.

“I probably retired a few years earlier than I would have,” he said. “Inefficiencies driven by political optics cause unnecessarily bloated dockets.”

Retired Judge Lisa Dornell worked in Baltimore but also left the bench during the Trump administration, much earlier than she had expected.

“It was really heartbreaking to see the impediments that didn’t allow us to help all of the children the way we wanted to,” Dornell said.

Meanwhile, the workload is only rising. In May alone, according to U.S. Customs and Border Protection, agents encountered more than 180,000 migrants at the southern U.S. border. It was the largest monthly total in two decades.

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Politics of guilt: Why does the Left oppose ‘occupation’ – opinion

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Why do leftists oppose “the occupation,” extending Israeli sovereignty to areas of Judea and Samaria under Israeli control, and support a Palestinian state, the “two-state-solution?” They argue that the presence of Jews in what they mistakenly call the “Occupied Palestinian Territory (OPT)” – all areas conquered by the IDF in 1967 Six Day War – is “illegal according to international law” and a “violation of Palestinian humanitarian rights.”

Presenting ethical and moral concerns – that Israel should not control “another people,” Arab Palestinians – they argue that “the occupation” prevents Palestinians from “controlling their own fate” in their own state. The occupation, they argue, also contradicts Israel’s definition as a “Jewish and democratic state.” As long as Israel restricts their movements (in order to prevent terrorism), determines their ability to export and import (weapons), and prevents them from exercising sovereignty, the occupation is immoral and should end. They argue that preventing or restricting Jews from building in settlements will “keep options open” to the possibility of making peace – however unrealistic – and will encourage Palestinian moderates.

It seems to make sense.

There is no indication, however, that this has worked, or is realistic. It ignores the fact that the PLO (Palestinian Authority) and Hamas already control the areas under their brutal, authoritarian rule, and actively promote incitement and terrorism. It ignores the fact that Palestinians do not want to be Israeli citizens; they identify as Palestinians. Most Israeli Arabs (including those who are citizens) reject Israel and support Palestinianism. These suggestions, therefore, have no practical, or reasonable application. They endanger Israel and support efforts to demonize and vilify Israel and promote antisemitism.

Despite ongoing terrorism by the PLO/PA, Hamas, Hezbollah, ISIS-backed groups and Jihadist militants throughout the region that are direct threats to Israel, restricting settlements, advocating further withdrawals from Israeli-controlled Area C, and offering the PLO/PA a sovereign state, including the Hamas-controlled Gaza Strip, are even more absurd considering that the PLO/PA/Hamas reject Israel’s legitimacy and continue to support incitement and terrorism.

Although many in the international community – including some Jewish and “pro-Israel” organizations – promote a two-state-solution and ending the occupation, they are oblivious to the danger this poses to Israel. Israeli leftists who support Palestinianism are aware of the risks, but few, if any, would be willing to sacrifice Israel’s security to accommodate the international community and allow Israel’s enemies to commit genocide. No Israeli government, therefore, would consider removing Jews and Jewish communities from areas claimed by Israel’s enemies.

The legally fraudulent concept of OPT was introduced by the International Committee of the Red Cross, the official interpreter of the Fourth Geneva Convention, in the early 1970s when it arbitrarily assigned the disputed areas to “Palestinians.” It was adopted by the international community as a way of denying Israeli claims to “the territories,” denouncing “Israeli occupation,” and supporting Palestinian demands to return to the 1949 Armistice lines. It ignores the PLO Covenant and Hamas Charter which call for Israel’s destruction.

RATHER THAN describe what now exists as “occupation,” however, a different terminology would be more accurate and realistic. One could refer to what Torah calls “possession,” reshut – the exercise of Jewish sovereignty in Eretz Yisrael. Another possibility would be to refer to Israeli presence, instead of “occupation.” This would describe what exists, without referring to a political term which has legal and moral implications. And, it would emphasize that Israeli Jews also have legitimate “humanitarian” and legal rights to build and protect their homeland.

Moreover, the US State Department erased the word “occupation” from its description of the Golan Heights and eastern Jerusalem; instead, it refers to these areas as being “under Israel control.” Additionally, the State Department removed the Palestinian Authority from its list of countries, and designated the PLO and Hamas as terrorist and terrorist-supporting entities.

The truth is that evacuating Jews and destroying Jewish communities in Judea and Samaria would accomplish nothing. It would not satisfy the PLO/PA/Hamas goal of destroying Israel. It would not change their basic narrative, the Nakba, the “catastrophe” of Israel’s establishment in 1948; nor would it satisfy their demand for “the Palestinian right of return” for Arabs who left “Palestine” and live in UNRWA-sponsored towns in Lebanon, Syria, Jordan Gaza and “the West Bank” and around the world. It would not “Liberate Palestine, from the river to the sea!”

Creating another Palestinian state – in addition to Jordan – would not eliminate terrorism; it would encourage and enhance it. Another Palestinian state would not promote peace; it provides the incentive and catalyst for conflict and it would destabilize the entire region. Ironically, it would prevent the emergence of any moderate, democratic Palestinian group that seeks accommodation with and acceptance of Israel. The claim by leftists that Israel’s “Jewish future demands Palestinian freedom” expresses the perverse idea that our existence depends on fulfilling their demands, whereas they seek to end our existence.

Is there a reasonable, comprehensive solution? The best option is to recognize Jordan as the one and only Palestinian state, and encourage Arabs who want to live there to do so. Arabs who wish to remain in Israeli-controlled areas as residents, and those who are under the PA and Hamas should be allowed to do so as long as they accept Israeli rule and renounce terrorism and violence. 

Israel is under no legal, or moral obligation to extend citizenship based on location. Citizenship requires a commitment to live in peace and support the rule of law. It’s their choice.

The writer is a PhD historian and journalist in Israel.

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A Look At Far-Right Politics In Europe – NPR

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