Considering that most nuclear power plants are designed to last between 30 and 40 years and that the majority of European plants were built between the 1970s and 1990s, the issue of their lifetime extension is at the center of the expert and public debate on nuclear energy in Europe. Lifetime extension refers to the prolongation of the operation of a plant beyond the validity period of the license, the plant’s design life or the period set forth in national laws or regulations.[1]The climate change emergency and the related need to phase out fossil fuels as fast as possible have only added to the urgency of the issue, more recently compounded by the war in Ukraine and the ensuing desirability of ending European Countries’ dependency on Russian gas.[2]
At a first glance, Italy would not seem to be directly affected by these discussions, as it abandoned its production of nuclear energy following a referendum after the Chernobyl disaster. Subsequent attempts to revive the nuclear debate in Italy were equally stifled by a further referendum following the Fukushima accident[3] and, except for some passing mentions,[4] it does not appear that the Russian-Ukrainian conflict has to date led to a serious reconsideration of the Italian position. Nevertheless, neighboring France has 56 operating reactors (by far the largest number of reactors among European States) covering 70% of the Country’s electricity needs.[5] The large majority of these reactors are over 30 years old,[6] and safety issues have started to emerge.[7] Additionally, some of the aging reactors are considerably close to the Italian border.[8]
Therefore, Italy – particularly in its northwestern regions – is directly affected by the February 2021 decision of the French Autorité de sûreté nucléaire (ASN) regarding the conditions for the prolongation of operation of the 32 oldest power plants in France.[9] As clarified by the ASN, while in France the initial authorization for the operation of nuclear power plants has an indefinite duration, a periodic review is carried out every ten years to assess their conditions; and, as the expected technical lifetime of the reactors concerned by the decision is 40 years, its extension is likely to require significant modifications. Indeed, the ASN itself highlighted “the breadth of changes” planned and the “major improvements” that it had prescribed to the plants’ operator.[10]
In accordance with French law, the draft decision by the ASN was submitted – through its website – to national public consultation between 3 December 2020 and 22 January 2021. However, international obligations deriving from international environmental treaties are also applicable in principle. These include the Convention on Environmental Impact Assessment in a Transboundary Context, so-called Espoo Convention, concluded in the context of the United Nations Economic Commission for Europe in 1991, entered into force in 1997, and ratified by both France and Italy. Article 2(3) of the Convention requires Parties to conduct an environmental impact assessment (EIA) before authorizing or undertaking “a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact”; the list of activities in Appendix I includes “[n]uclear power stations and other nuclear reactors, including the dismantling or decommissioning of such power stations or reactors”. Other core obligations refer to the notification of and consultation with affected Parties, i.e., Parties likely to be negatively impacted by the activity (Articles 2(4) and 3 to 5); and to the involvement in the EIA procedure of the public in the areas likely to be affected, on terms “equivalent” to those governing public involvement in the Party of origin of the activity (Article 2(6); see also Article 3(8)).
Such was the assessment of the Italian Ministry for Ecological Transition (Ministero della Transizione ecologica – MiTE; then Ministry of the Environment, Ministero dell’Ambiente) which, in its capacity as the focal point for the Espoo Convention[11] and at the urging of Greenpeace Italia among others, on 14 January 2021 wrote to its French counterpart about the draft decision by the ASN and the related public consultation.[12] The MiTE’s note makes reference to the recent adoption (December 2020), by the Meeting of the Parties to the Espoo Convention, of the Guidance on the Applicability of the Convention to the Lifetime Extension of Nuclear Power Plants[13] – a non-binding document which is intended to clarify the Espoo Convention’s application to this specific kind of situations, in the interest of both States Parties and the Implementation Committee of the Convention. In fact, several cases examined by the Committee, which is tasked with reviewing compliance by Parties with the Convention,[14] have concerned the construction or extension of nuclear power plants.[15]
The notion of “lifetime extension” itself is expounded in the Guidance. The MiTE pointed out that, according to that instrument, “[a] specific periodic safety review towards the end of the established lifetime can be carried out in support of the decision-making process for and may thus indicate a lifetime extension” (paragraph 31). Accordingly, in the words of the MiTE:
in particular in light of paragraph 31 of the Guidance, the continued operation of the nuclear power plants [in question] beyond the time frame established by the fourth review would seem to fall under the definition of lifetime extension of nuclear power plants.
In accordance with the Guidance and the Convention, as mentioned above, if the lifetime extension is “likely to cause significant adverse transboundary impact”, the Party of origin is required to carry out an EIA prior to authorizing the activity, as well as to notify any affected Parties and conduct transboundary public consultations. On that basis, the MiTE asked its counterpart
to share with the Italian Government the reasons that led the French Government and the ASN to exclude the ongoing review of nuclear reactors from the environmental impact assessment procedure pursuant to the Espoo Convention, opting instead at present for a national public consultation only.
According to the MiTE, notifying Italy “could appear appropriate” also in light of Article 3(7) of the Espoo Convention, which provides for the holding of discussions between the Party of origin and a Party which believes it would be affected by a significant adverse transboundary impact but has not been notified. In case the Parties cannot come to an agreement on the likelihood of the negative impact, an expert-based inquiry commission can be instituted.[16]The MiTE’s note concludes:
In light of the clear impact that the review procedure in question could potentially have on the Italian territory, Italy requests that a transboundary consultation be initiated, which may integrate the ongoing procedure carried out by the ASN or be part of an EIA pursuant to the Espoo Convention, should this be undertaken.
Information on subsequent developments is not widely available. After the national public consultation, in February 2021, the ASN adopted a decision including the conditions for the lifetime extension of reactors beyond 40 years.[17] No reply by the French authorities to the Italian note could be found, and, in April, Greenpeace Italia lamented France’s persistent silence.[18] Nonetheless, the case reached the Espoo Convention’s Implementation Committee, with which Greenpeace France had already been sharing its concerns regarding the lack of an EIA and transboundary consultation since March 2020.[19] After asking the French Government to provide its comments as well as additional information by 18 January 2021 (deadline then extended to 10 March),[20] in its May 2021 session the Implementation Committee “noted […] that Italy had requested France to be consulted under the Convention” and asked the Italian Government to clarify whether it believed that the lifetime extension of the French reactors would likely have a significant adverse impact on the Italian territory and whether any discussions had been held between France and Italy in this respect.[21]
During its March 2022 session, the Implementation Committee “expressed its serious concerns regarding the apparent plans by France to continue operating” the oldest plants in the absence of a transboundary EIA in accordance with the Espoo Convention.[22] The Committee also issued some instructions which, inter alia, clarify the import of and apply the new Guidance on lifetime extension. The Guidance points to the scale of modifications (or number of smaller modifications over time), investment costs, and duration of the extension as indicators of an “activity” or “major change to an activity” pursuant to the Convention.[23] It adds that, in order to establish whether the lifetime extension is likely to cause significant adverse transboundary impact, the significance of the impact in case of accident (even if the likelihood of the accident is considerably low) is a factor to be considered and interpreted in light of the principles of prevention and precaution. Accordingly, the Committee found that the physical works or changes in the operating conditions needed in the specific case were highly likely of relevance to the Espoo Convention; and it seemed to generally conclude that “if accidents occurred at nuclear power plants, the likelihood of significant adverse transboundary impacts could be very high”.[24] Furthermore, the Committee reiterated that “if a potentially affected Party considered that a significant transboundary impact of a proposed activity could not be excluded and expressed a wish to be notified, the Party of origin ha[s] an obligation to apply the Convention”.[25]
However, the Report of the Committee does not make any further mention of Italy. Therefore, notwithstanding the opportunity offered by the Committee, the Italian Government would seem not to have submitted its views on the matter to date. This is somewhat surprising in light of its previous involvement through the MiTE’s note (which, admittedly, was couched in extremely cautious terms) and in light of the clear-cut findings by the Committee regarding the application of the Espoo Convention to the specific case (although the matter is still at an interim stage). The apparent lack of action on the part of the Italian Government also raises issues in relation to States’ obligations regarding transboundary publicparticipation. In this respect, the Espoo Convention interacts with the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (so-called Aarhus Convention) – and it will be interesting to consider any cross-fertilization or contradiction between the findings of the respective Committees.[26]
On the other hand, Italy appears to have adopted a different approach with respect to the planned enlargement and 20-year lifetime extension of the Krško nuclear power plant, located in Slovenia and jointly owned by the Slovenian and Croatian Governments. In this instance, Italy was notified by the Party of origin, together with other neighboring Countries; and whereas, initially, only the local government manifested its opposition, [27] at the end of May 2022 the EIA Commission (a technical body of the MiTE) gave a negative opinion on the lifetime extension of the plant, in the context of the transboundary EIA procedure.[28]
Therefore, at present, Italy does not seem to have adopted a coherent approach to address lifetime extensions of nuclear power plants in neighboring Countries – fluctuating between action and inaction, and between a technical approach and a more political one. It is however urgent, also in light of the above-mentioned upward trend in the prolongation of the operation of nuclear reactors, that Italy develops a consistent position, and one that complies with the Country’s international obligations.
Chiara Tea Antoniazzi
A quotable version of this post was published in the Italian Yearbook of International Law: Antoniazzi, “The Lifetime Extension of French Nuclear Power Plants”, IYIL XXXI (2021), 2022, pp. 512-517; available here.
[1] In other contexts, the expression “long term operation” is also used, often interchangeably: International Atomic Energy Agency, IAEA Safety Standards: Ageing Management and Development of a Programme for Long Term Operation of Nuclear Power Plants, Vienna, 2018.
[2] “Does Ukraine war mean a renaissance for nuclear in EU?”, EUobserver, 14 April 2022.
[3] “L’Italia e il nucleare, dal primo impianto ai referendum: storia di un rapporto complicato”, L’Espresso, 11 April 2022.
[4] Presidency of the Council of Ministers, “Il Presidente Draghi risponde al Question Time alla Camera dei Deputati”, 9 March 2022.
[5] United Nations Economic Commission for Europe (UNECE), “Technology Brief: Nuclear Power”, pp. 5 and 19.
[6] International Atomic Energy Agency, “Country Nuclear Power Profiles: France (Updated 2020)”.
[7] “Safety concerns raised for third French nuclear plant”, EURACTIV.com, 14 January 2022.
[8] See the map included in “Les plus anciens réacteurs nucléaires prolongés de dix ans”, Le Monde, 25 February 2021.
[9] See ASN, Décision n° 2021-DC-0706, 23 February 2021.
[10] ASN, “Centrales nucléaires au-delà de 40 ans: Position de l’ASN sur les conditions de la poursuite de fonctionnement des réacteurs nucléaires de 900 MWe au-delà de leur 4e réexamen périodique”.
[11] The Convention distinguishes between points of contact regarding notification and focal points for administrative matters: both roles are entrusted to the MiTE in Italy, and to analogous ministries in many other States Parties.
[12] For the text of the note, see the link included in Greenpeace Italia, “La Francia prolunga la vita di 16 centrali nucleari oltre confine. Greenpeace: necessario allargare la consultazione pubblica al nostro Paese”, 20 April 2021.
[13] UNECE, Guidance on the applicability of the Convention to the lifetime extension of nuclear power plants, Geneva, 2021. The Guidance was endorsed by the Meeting of the Parties to the Espoo Convention at its 8th session, held on 8–11 December 2020, through its Decision VIII/6.
[14] On the Implementation Committee and, more generally, on the compliance, enforcement, and dispute resolution mechanisms of the Espoo Convention, see Koivurova, “The Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)”, in Ulfstein(ed.), Making Treaties Work: Human Rights, Environment and Arms Control, Cambridge, 2009, p. 218 ff.
[15] See, for the list of submissions by States Parties to the Implementation Committee: “Submissions overview”, available here; and, for the list of reviews initiated by the Committee itself: “Committee initiative overview”, available here. See also the information submitted by other sources, mainly non-governmental organizations, to the Implementation Committee, which can lead to submissions by States or Committee’s initiatives: “Information from other sources”, available here.
[16] In accordance with Appendix IV to the Convention. Only one inquiry commission has been established to date, regarding the impact of a navigation canal at the border between Romania and Ukraine: see “Inquiry Commission”, available here.
[17] See supra note 8; see also the text of the ASN decision, supra note 9.
[18] See Greenpeace Italia, supra note 12.
[19] See Greenpeace France, “Information for the attention of Implementation Committee, Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 1991)”, 16 March 2020, EIA/IC/INFO/32.
[20] See UNECE, “Report of the Implementation Committee on its forty-eighth session. Geneva, 1-4 September 2020”, 20 October 2020, ECE/MP.EIA/IC/2020/4, para. 52 ff.; and “Report of the Implementation Committee on its forty-ninth session. Geneva, 2-5 February 2021”, 23 February 2021, ECE/MP.EIA/IC/2021/2, para. 78 ff.
[21] UNECE, “Report of the Implementation Committee on its fiftieth session. Geneva, 4-7 May 2021”, 7 June 2021, ECE/MP.EIA/IC/2021/4, para. 77 ff.
[22] UNECE, “Report of the Implementation Committee on its fifty-second session. Geneva, 29-31 March 2022”, 4 May 2022, ECE/MP.EIA/IC/2022/2, para. 44.
[23] Other factors influencing the identification of a lifetime extension as a “major change” are listed in Annex II to the Guidance and include increased use of natural resources, increased production of waste or spent fuel, and increased emissions.
[24] UNECE, supra note 22, para. 45(b)-(c).
[25] Ibid., para. 45(d).
[26] On the interplay between the Espoo Convention, the Aarhus Convention and international nuclear law, see Duvic-Paoli and Lueger, “A Democratic Nuclear Energy Transition? Public Participation in Nuclear Activities”, RECIEL, 2022, p. 1 ff.
[27] Autonomous Region of Friuli Venezia Giulia, “Ambiente: Moretuzzo (Patto), no deciso ad ampliamento centrale Krško”, 27 July 2021.
[28] “Nucleare: Regione Fvg, parere negativo Via su centrale Krsko”, ANSA, 31 May 2022.
Italian Ministry for Ecological Transition, note of 14 January 2021.
Italy's Diplomatic and Parliamentary Practice on International Law 