New development in Danish administrative practice on Environmental Impact Assessment (EIA)
Indirect emissions occurring in the value chain of a company or project are often referred to as "Scope 3" emissions (as set out in the Greenhouse Gas Protocol).
The majority of the Danish Energy Board of Appeal found that it was requirement for the EIA report to describe indirect impacts on the climate from downstream greenhouse gas emissions for the EIA report to constitute a sufficient basis for the Danish Energy Agency's decision regarding the project.
The decision marks a new interpretation of the EIA Directive (Directive 2011/92/EU as amended by Directive 2014/52/EU), which has not previously been seen in Denmark. The Court of Justice of the European Union ("CJEU") has not previously ruled on this question.
Instead, the majority of the Board refers to a 2025 ruling from the EFTA court regarding a Norwegian oil/gas project. The EFTA ruling does not have legal binding effect for the CJEU or the national courts in EU Member States.
The decision's legal precedence and practical impact is unclear, but potentially wide-ranging. The decision does not elaborate on how the project developers are to fulfil the obligation to describe the potential indirect impacts on the climate due to emissions of greenhouse gases in the downstream value chain.
The broad interpretation of what a project developer must address regarding indirect effects arising from the subsequent use of the company's products in an environmental impact assessment raises several legal questions. For instance, it is not possible in an EIA permit to lay down conditions for the subsequent environmental impacts resulting from the later use of the company's products, as regulation is generally dealt with through product regulation.
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If you are potentially impacted by the new development, please feel free to contact our specialists in Plesner's Energy & Infrastructure and Environmental Law teams.
Read the Danish Energy Board of Appeal's decision (in Danish)