In 2017, the Swedish parliament introduced a new climate policy framework for Sweden with new climate goals, a Climate Act and plans for a climate policy council. The Climate Act will enter into force on 1 January 2018. According to the Swedish government, the climate policy framework is the most important climate reform in Sweden’s history.
The waste legislation in Sweden is undergoing changes in order to adapt to recent changes made in EU Waste Framework Directive 2008/98/EC. The changes include a new Chapter on waste in the Environmental Code (1998:808) with, inter alia, new regulations implementing the waste hierarchy. In 2016, the government passed an ordinance on plastic bags that entered into force during 2017. The ordinance is based on the Packaging Directive (94/62/EC) and the aim of the legislation is to decrease the use of plastic bags in order to decrease littering due to their usage and also to promote a more sustainable development. During the coming years, waste legislation in Sweden will be further reviewed and changed due to the proposed changes in the Waste Framework Directive and six other EU directives. These changes are part of the EU Commissions Action Plan for Circular Economy adopted on 2 December 2015.
As part of Sweden’s implementation of the EIA Directive (2014/52/EU) and the SEA Directive (2001/42/EC), new regulations on environmental impact assessments will enter into force in 2018.2
The prevailing political mode in Sweden today is highly focused on policies that will enable Sweden to reach the climate goals set out in Agenda 2030 and in the Kyoto Protocol and Paris Agreement. Another area that has been object to several governmental inquiries and legislation is water management, with regards to coastal as well as inland waters. Sweden has been criticised by the EU Commission for not having implemented the EU Water Framework Directive (2000/60/EC) correctly. Furthermore, the Swedish system for issuing permits and supervision within the environmental area has been criticised in a recent official report made on behalf of the government. The system has, among other things, been judged as inefficient and incoherent.
II LEGISLATIVE FRAMEWORK
The main legal act regulating environmental policy in Sweden is the Environmental Code. The Environmental Code aims to promote sustainable development, which forms the basis of the environmental regulation as such. The Swedish parliament has also adopted 16 national environmental quality goals, such as clean air, reduced climate impact and good-quality groundwater. The generational goal, or overall goal, is to ‘pass on the next generation a society in which major environmental problems have been solved without increasing environmental and health problems beyond Sweden’s borders’. The general rules of consideration are set out in the Environmental Code. They include, for example, the precautionary principle and the polluter pays principle. The general rules of consideration shall apply in all cases involving actions or measures that may affect the environment.
In many areas the Environmental Code delegates legislation powers to the government that may issue ordinances that, in turn, give regulative powers under the Environmental Code to the environmental authorities, such as the Swedish Environmental Protection Agency and the Swedish Agency for Marine and Water Management. There are also a number of specific regulations for different sectors such as physical planning of land and water, farming, road and railroad construction, and mining.
An integral part of the Swedish system for environmental protection is the requirement for environmentally hazardous activities and water operations to apply for a permit, or to notify the authorities of the activities in advance. In the permit process the operator must show that the activities are in compliance with the general rules of consideration. A permit is generally subject to a number of conditions in order to reduce the effects on the environment and human health of the operations. When a permit is not required, the supervisory authority may in individual cases order an operator to apply for a permit where the activity involves the risk of significant pollution or another significant detriment to human health or the environment. An operator may also apply for a voluntary permit.
As a member of the EU, Swedish environmental law is strongly influenced and governed by the EU environmental policy. The EU environmental law has highly influenced the development of Swedish environmental law. In particular, the implementation of the Industrial Emissions Directive (2010/75/EU) and the implementation of the Water Framework Directive (2000/60/EC) have been the subject of discussion during recent years.
Sweden is also a member of multiple international treaties with the purpose of protecting the environment, including the United Nations Framework Convention on Climate Change3 and several other conventions regarding air emissions and nature conservation and the protection of wildlife.
III THE REGULATORS
The Ministry of the Environment and Energy has the main responsibility for the Swedish national environmental, energy and climate policy.
In order to achieve the 16 environmental quality goals, a number of government agencies are responsible for following up and evaluating specific environmental quality objectives. The Swedish Environmental Protection Agency (EPA), working with all the agencies with responsibilities within the environmental objectives system, coordinates the work and prepares the overall report to the government. Besides the EPA, the agencies responsible for specific environmental quality goals are:
- a the Swedish Agency for Marine and Water Management;
- b the Swedish Chemical Agency;
- c the National Board of Housing, Building and Planning;
- d the Swedish Board of Agriculture;
- e the Swedish Forest Agency;
- f the Swedish Radiation Safety Authority; and
- g the Geological Survey of Sweden.
The agencies above are funded through governmental allocation and are given instructions by the government. The agencies are also, through the Environmental Code and through governmental regulations, given rights to adopt regulations within their separate sectors.
In 2015, the UN adopted the Global Goals and the 2030 Agenda for Sustainable Development. The undertaking under the 2030 Agenda is to promote prosperity while protecting the planet, taking into account the different levels of national development and capacities. In Sweden, the responsibility to achieve the goals under the 2030 Agenda forms part of all sectors of the government, including the relevant agencies.
Besides its function as the main coordinator of the implementation of environmental quality goals, the EPA also has responsibility for:
- a compiling knowledge and documentation;
- b developing environmental policy by providing the government with a basis for decisions;
- c implementing environmental policy by ensuring compliance with the Swedish Environmental Code; and
- d achieving national environmental objectives.
The above-mentioned agencies all work within their specific sectors, following the instructions set out by the government and through the delegations in the Environmental Code and other regulations. Specifically designated authorities such as the EPA and the Swedish Agency for Marine and Water Management may also act as counterparties to the applicant in environmental permit proceedings. In addition, the supervisory authorities act on a regional or municipal level and have comprehensive power to impose demands on the operators and to require measures in cases of non-compliance with environmental law or a given environmental permit.
Permits for environmentally hazardous activities and water operations are tried by the five regional Land and Environmental Courts, as regards larger operations or by the County Administrative Boards. Decisions may be appealed to the Supreme Land and Environmental Court, and in some cases the Supreme Court. The Land and Environmental Courts play an important role in the enforcement of Swedish environmental law, both in terms of interpreting how far it is possible to push the general environmental goals and in the interpretation of the legislation. As a consequence of the Aarhus Convention, there has been a more generous interpretation of the possibilities for individuals and non-profit organisations to appeal judgments from the Supreme Land and Environmental Court than was previously the case.
A supervisory authority may issue the injunctions and prohibitions that are necessary in the individual case in order to ensure compliance with the provisions of the Environmental Code in general or with the conditions of a permit. A permit authority may also, under certain circumstances, revoke a permit.
An operator who neglects to comply with environmental law or conditions in a permit can also receive an environmental sanction charge. The sanctions range between 1,000 and 1 million Swedish krona and shall be imposed regardless of the intent of the accused party (i.e., it is a strict liability). There are also sanctions under criminal law, such as company fines ranging between 5,000 and 10 million Swedish krona or imprisonment. A criminal liability requires intent or negligence. Under criminal law there is generally no liability if the offence is considered as minor.
There are also sanctions under criminal law, such as company fines ranging between 5,000 and 10 million Swedish krona; however, these require that an individual in the company may be deemed liable.
If the supervisory authority becomes aware of a criminal offence under the Environmental Code, it has a duty to report the suspected violation to the police or prosecution officer.
Civil liability for environmental damage can be sought through a civil case in the Land and Environmental Courts. The legal basis for such a claim is that damage has occurred owing to environmental hazardous activities causing vibrations, noise, etc. (see Chapter 32 of the Environmental Code) or water activities (see Chapter 31 of the Environmental Code). Environmental liability under Chapters 31 and 32 constitutes a strict liability, which means that the operator is responsible even if there is no fault or negligence on behalf of the defendant.
V REPORTING AND DISCLOSURE
A permit holder is obliged to report any violations of the conditions set out in the permit or violations of environmental legislation. The report will be reviewed by the supervisory authority and the supervisory authority may report suspected environmental crimes to the police or prosecutor’s office.
Authorities have the right to be given access to properties for the purpose of carrying out investigations and taking other measures in order to perform their tasks pursuant to the Environmental Code. A supervisory authority may also order an operator to submit information and documentation to the authority or carry out investigations that are necessary for the purposes of supervision.
The owner or user of a property is obliged to immediately notify the supervisory authority if contamination is discovered on the property that may cause damage or detriment to human health or the environment, or if there is a risk that the operations may cause serious environmental damage. The obligation is criminally sanctioned under the Environmental Code. There is no specific obligation to inform affected third parties; however, all information to the authorities is generally available to the public.
Under the Environmental Code, there is a general obligation for anyone who pursues an activity that may cause detriment to human health or the environment to carry out the investigations necessary to comply with the provisions of the Environmental Code and for the purposes of supervision. In the case of exploitation of an area that may be contaminated, the supervisory authority usually requests that the operator perform land investigations.
There is no general obligation under Swedish environmental law to disclose environmental issues such as existing contamination. However, the purchaser of a property is required to perform the necessary investigations in order to not take on a liability under the Environmental Code for existing contamination on the property.
As a general rule, balance sheet reservations should be made in respect of liabilities that are known to arise in the future, which also include environmental liabilities. As the environmental liability is connected with the operator who has caused the liability, or a property owner, a company may be dissolved in order to escape environmental liabilities as long as this procedure is in accordance with other aspects of Swedish law.
VI ENVIRONMENTAL PROTECTION
i Air quality
Sweden’s legislation on air quality standards is highly influenced by the EU legislation on clean air through, inter alia, the Air Quality Directive (2008/50/EG). Sweden is also party to international conventions on air quality such as the UN Convention on Long-range Transboundary Air Pollution.
Chapter 5 of the Environmental Code sets out the framework for air quality standards, which is further elaborated in the Air Quality Ordinance (2010:477). The municipalities and the EPA are responsible for controlling air quality with respect to the air quality standards. This is achieved through measurement, calculation or objective estimation depending on the current air quality in accordance with the regulations (NFS 2013:11). Via the authorities, the government is responsible for the air quality standards being met. This is ensured in the permit proceedings for larger industrial operations or as separate regulations, such as action programmes, if there is a risk that quality standards would be exceeded.
In the Air Quality Ordinance (2010:477), there are quality standards set out for nitrogen dioxide, nitrogen oxides, particles (PM10/PM2,5), ground-level ozone, benzene, carbon monoxide, arsenic, cadmium, nickel and bens(a)pyren. Most standards are limit values and others are guideline values.
With respect to most industries causing air emissions, there are requirements for the operator to obtain a permit under the Environmental Code in order to carry out the operation. When the permit application is tried by the court or authority, the conditions for air emissions will be tried subject to general and specific environmental legislation.
ii Water quality
Sweden’s water quality standards are set out to implement the EU Water Framework Directive. The legal basis in Sweden is found in Chapter 5 of the Environmental Code, together with the Ordinance (2004:660) on the government of water quality. The Swedish Agency for Marine and Water Management and the SGU have, in accordance with the Ordinance, stipulated regulations regarding surface water and groundwater.
Five national water districts have been established in order to ensure the implementation of the requirements set out in the Water Framework Directive with respect to administrative issues. Environmental quality standards have been set out in order to achieve the water quality objectives for all surface and groundwater resources in Sweden.
As a main rule, all water operations in Sweden are subject to permit under Chapter 11 of the Environmental Code, issued by the Land and Environmental Courts or notifications to the county administrative boards. Water operations include building and digging in water areas and the operation of hydropower plants. When these permits are given, the court or authority must ensure that the operations are not in conflict with the requirements of the Water Framework Directive.
As a result of the Weser and the Schwarze Sulm judgments4 from the European Court of Justice, there have been several cases in the Environmental Court of Appeal during 2015–2017. As regards the non-deterioration requirement in the Water Framework Directive, it has been stated that this is related to the effects on the biological quality elements.5 The regulatory framework with respect to hydropower plants is currently under review in Sweden.
The specific regulations for chemicals are set out in Chapter 14 of the Environmental Code. The EU regulations on chemicals elaborated in the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation 1907/2006 are an integral part of the Swedish legal framework. The aim of REACH is to take a broad approach to minimising risks associated with chemicals by registration, evaluation, permits and limitations. In Sweden, this is also ensured by the implementation of EC CLP Regulation 1272/2008 on classification, labelling and packaging of chemicals products. EU Regulations 528/2012 concerning biocidal products and 1107/2009 concerning the placing of plant protection products on the market are also part of Swedish law.
In addition to the regulations above, the production of chemicals is subject to a permit requirement under the general obligations of the Environmental Code. The conditions set out in the permit are binding for the operator and any breaches of the conditions must be reported to the supervisory authority in the annual environmental report.
iv Solid and hazardous waste
The Swedish legislation on waste is largely based on the EU Waste Framework (2008/98/EG). The Directive has mainly been implemented in Swedish legislation through Chapter 15 of the Environmental Code and the Waste Ordinance (2011:927).
Under the Environmental Code, waste is defined as any object, matter or substance belonging to a specific waste category that the holder disposes of or intends or is required to dispose of. In Appendix 4 of the Waste Ordinance, different types of waste are listed. Some categories of waste, such as hazardous waste, are subject to stricter regulations concerning controls regarding collection, transport, storage, etc. The ‘producer’ of certain product categories (packages, waste paper for recycling, cars, tyres, etc.) also has certain responsibilities regarding collection, disposal and recycling of the waste resulting from such products.
Storage or the disposal of waste may require a permit, depending, inter alia, on the type and volume of waste. In some cases it is sufficient for the producer to notify the supervisory authority. According to the Environmental Code, the producer of waste is always obliged to ensure that the waste is handled in an acceptable manner for the environment and human health. For operators of landfills, it is mandatory to have an environmental permit for the landfill. It is also mandatory for the operator to issue a financial security for the operation.
v Contaminated land
Remediation of contaminated land and groundwater is set out in Chapters 10 and 2 of the Environmental Code. The obligations are based on the polluter pays principle. A permit as such does not exclude from liability, and in the case of contaminated areas an operator can be liable for the remediation even if the activity was operated within the permit limits. However, when the extent of liability is determined, account shall be taken of the length of time that has elapsed since the contamination occurred, whether the person liable was obliged to prevent future damage and any other relevant circumstances.
Under criminal law, contamination in a manner that involves risk to human health or detriment to flora and fauna that is not insignificant is considered to be a criminal offence under Chapter 29 of the Environmental Code, and someone acting deliberately or by negligence may be held liable.
An operator that has caused or contributed to contamination of land or water; buildings and structures that are so polluted that they may cause damage or detriment to human health or the environment; or who has caused or contributed to a serious environmental damage, is liable for the investigation and remedying of environmental damage. As a condition for liability, the operations causing the contamination must have been active after 30 June 1969, and the effect of the liability still have been present when the Environmental Code entered into force (1 January 1999). With respect to serious environmental damage, particular provisional regulations apply.
A property owner may be held liable if the operators are unable to pay for the remediation. A condition for the property owner’s responsibility is that the property was purchased as from 1 January 1999, and that the purchaser was aware of the contamination or should have been aware.
If several operators are responsible for causing, or contributing to, contamination, they are jointly and severally liable. However, the liability shall be divided between the operators as deemed reasonable with regard to the extent to which each of them was responsible for the pollution, and to other relevant circumstances. The same applies for property owners.
A third party can challenge a decision concerning the remediation, under the condition that the third party is considered to be affected by the decision. It is not possible to make a legally binding agreement with the authorities in order to prevent future claims.
It is possible to transfer the liability for contaminated land under an agreement; however, the agreement will only be valid between the parties. The authorities may impose liability towards any one of the parties, under the condition that both parties have caused or contributed to the contamination. A new property owner may have a right of recourse against previous owners depending on the terms of the transfer agreement. The Environmental Code contains specific provisions concerning the right of recourse between different liable operators or property owners.
VII CLIMATE CHANGE
Sweden has implemented the EU Emission Trading Directive (2003/87/EC) by the national Emissions Trading Act (2004:1199) and the Emissions Trading Ordinance (2004:1205). The authority responsible for the trading scheme registry is the Swedish Energy Agency. The Swedish EPA decides on the allocation of emission allowances, is the supervising authority and is responsible for publishing statistics on the companies’ annual reporting of greenhouse gas emission.
Sweden is also a party to the United Nations Framework Convention on Climate Change (the Kyoto Protocol), and is therefore obliged to inventory and estimate Swedish greenhouse gas emissions. Sweden has also signed the Paris Agreement. The Swedish EPA collects and compiles the information concerning Sweden. The agency also puts together national statistics and regularly reports to the government, the EU Commission and the UN.
The companies involved in the trading scheme are allowed to apply for an allocated emissions allowance. Final decisions on the allocation have been taken by the EPA after consultation with the National Board for Industrial and Technical Development and the Energy Agency. The emissions allowances are allocated to the companies free of charge. The companies included in the trading scheme are also required to have a special permit to emit carbon dioxide. If such a permit is not acquired, the company is not allowed to conduct any carbon dioxide. In order to qualify for a permit, the operator must be able to reliably monitor and report emissions. The permits are processed by the County Administrative Board in the region where the company operates.
The Climate Act from 2017 establishes that the government’s climate policy must be based on the climate goals, and specifies the implementation of the policy. The government is required to present a climate report in each budget. Every fourth year, the government is required to present a climate policy action plan describing efforts made in order to achieve the climate goals.
The climate goals set out in the climate policy framework adopted in 2017 state that in 2045 Sweden shall have zero emissions of greenhouse gases and that Sweden should achieve negative emissions thereafter. Emissions in Sweden in the sectors that will be covered by EU regulation on the division of responsibilities should, by 2030, be at least 63 per cent lower than emissions in 1990, and at least 75 per cent lower by 2040. The emissions covered are mainly from transport, machinery, small industrial and energy plants, housing and agriculture. These emissions are not included in the European Union Emissions Trading System, which covers most of the emissions from industry, electricity and district heating output, and flights departing from and arriving in the European Economic Area. In a similar way as for the long-term goal, parts of the goals may be achieved by 2030 and 2040 through supplementary measures, such as increased uptake of carbon dioxide by forests or by investing in various climate projects abroad. Such measures may be used to achieve a maximum of 8 and 2 percentage points respectively of the emission reduction goals by 2030 and 2040. Emissions from domestic transport, excluding domestic aviation, will be reduced by at least 70 per cent by 2030 compared with 2010. The overarching goal for Sweden is that the country should be the world’s first fossil-free welfare nation.
As a result of the commitments in the Paris Agreement the government will produce a national strategy for climate change adaptation in 2018, which will form the long-term strategy for Sweden to reach low greenhouse gas emissions. The strategy shall be presented to the UN Climate Secretariat by 2020.
VIII OUTLOOK AND CONCLUSIONS
Agenda 2030, within the UN system, will continue to play an important role for Swedish policymaking. Sweden’s ambitious goals for 2045 also mean that the government will put a lot of effort into policymaking within the environmental field, focused on reducing greenhouse gases in both the industry sector and the transportation sector. For example, a proposal to introduce a flight tax is currently being handled by the parliament, and if it is accepted will enter into force in April 2018.
Another area that we believe will be subject to a continued focus is the reduction of waste and reduction of hazardous substances. A government report on circular economy was presented in 2017, and the suggestions in this report are now being reviewed. A board for promoting circular economy will be created, and the government has proposed funds for the board in the budget proposal.
The focus on water management will continue, and the Swedish implementation of the Water Framework Directive will be further elaborated and will most likely result in new legislation. Furthermore, the government has recently proposed legislative changes needed in order for Sweden to implement the changes in the Drinking Water Directive (98/83/EG amended by Directive 2015/11787). Inter alia, the changes will result in a more frequent quality testing of drinking water. If exemptions are to be made, a risk assessment will first have to be undertaken.6
1 Agnes Larfeldt Alvén is partner and Johanna Lindqvist is an associate at Agnes Advokatbyrå.
2 Prop. 2016/17:200.
3 Sweden has also ratified the Kyoto Protocol and the Paris Agreement.
4 C-461/13 and C-346/14.
5 Land and Environment Court of Appeal 21 April 2017, Cases M 2649-16 and M 2650-16.
6 Proposition 2017:18:25.