“Metals for the green economy need to be green,” is becoming a well-worn mantra. The proposed European Union (EU) Batteries Regulation will be a first mover in terms of embedding this notion in law. The proposal was made in December 2020 and was still under review at the time of writing (November 2021). It aims to modernise the legislative framework surrounding the lifecycle of batteries as part of the EU Green Deal. Some of the many sustainability provisions in the proposal will extend to mines producing minerals for batteries made and sold in the EU. Requirements in the proposed regulation of particular interest to miners are highlighted below:
• Recycling of metals used in batteries will be strongly encouraged. Declarations on the recycled content of batteries will become mandatory in 2027 and mandatory minimum levels of recycled content will be set for 2030 and 2035.
• Carbon footprint of mines producing battery metals will be important. The proposal requires progressive reduction of the carbon footprint of batteries. Maximum lifecycle carbon footprint thresholds will become applicable in 2027.
• Provenance of the metals used in batteries will also be important. Supply-chain due diligence is envisaged as a mechanism to ensure that battery raw materials come from responsible sources – from responsible mines, processors and traders.
• The recycled content declarations, carbon footprint and due diligence will require third-party verification.
Currently there are restrictions on the scope of the above-mentioned requirements. These only apply to electric vehicle batteries and rechargeable industrial batteries. In addition, the only battery metals identified in draft regulation are cobalt, natural graphite, lithium, and nickel. Non-governmental organisations, such as Amnesty International, have called for the scope to be extended to other batteries and other metals such as copper, iron and bauxite. The proposal does state that the “Commission is empowered to review the list of substances and risk categories concerned by this obligation”.
The proposed regulation prefers mandatory supply-chain due diligence but acknowledges voluntary due diligence could be an option. The introduction to the proposal explains there is much consensus among stakeholders that mandatory due diligence would be more effective.
According to the proposal, mandatory due diligence schemes will have to be recognised by the European Commission. The preface to the proposed regulation notes there are several responsible sourcing schemes in place. Parties that have developed and oversee such schemes – whether they are governments, industry associations or other parties – will have to apply for recognition of the schemes and there will be an implementing act granting recognition. The preface is also clear that the due diligence must cover social and environmental risks. Particular attention needs to be paid to impacts on human rights, including labour rights and human health and safety, and impacts on water use, soil protection, air pollution and biodiversity, including community life.
Other sustainability requirements in the proposed EU Batteries Regulation pertain to performance and durability, safety and labelling, and end-of-life management of batteries. The proposal also promotes green public procurement of batteries using technical specifications and award criteria that favour batteries with lower environmental impacts over their lifecycle. Mandatory criteria could be introduced in delegated acts (EU subsidiary legislation).
Deliberations on the proposed regulation point to the need for more precise and functional governance instruments and arrangements to implement it, with all stakeholders involved.
