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Lawfare contributors Ashley Deeks and Russell Spivak discussed, in 2017, the U.S. Court of Appeals for the D.C. Circuit ruling in Taylor v. Huerta that struck down the 2015 Federal Aviation Administration (FAA) interim drone registration rule. Some of the same players involved in that case, including Taylors attorneys, Jonathan Rupprecht and Kathleen Yodice, as well as the presiding judge, Robert L. Wilkins, reconvened on Dec. 15 for oral arguments in the case RaceDayQuads (RDQ) v. FAA, challenging the FAAs remote identification (RID) rule. This post provides an overview of the rule, summarizes the challenges and offers analysis of the arguments as well as thoughts on what might happen going forward. Given that the FAA has made RID a prerequisite for certain operations over people, beyond visual-line-of-sight drone operations and the future unmanned traffic management system, this case has the potential to set the commercial drone industry back years and hamper national security agencies in protecting against rogue drones.

The Rule

The FAAs stated purpose of the RID rule is to protect airspace safety and national security by requiring all small drones (0.55-55 lbs) in the U.S. to broadcast out a digital license plate that is accessible in near real time to the FAA, national security agencies, law enforcement entities, other government officials and the general public.

It took the FAA more than two years to finalize the rule. The process began on New Years Eve 2019 when the agency published its initial Notice of Public Rulemaking (NPRM). Despite multiple requests to extend the deadline, the FAA closed out the public comment period on March 2, 2020. Even so, during that 60-day period, the FAA received more than 53,000 comments. Almost a year later, in January 2021, the FAA promulgated the final RID rule (which added a new Subpart C to Part 89 in Title 14 of the Code of Federal Regulations, Remote Identification of Unmanned Aircraft).

Under this rule, a drone will need to broadcast message elements (MEs) over WiFi and/or Bluetooth, including its unique identifier (e.g., a serial number), precise coordinates, geometric altitude, velocity, the control station coordinates or broadcast takeoff location and geometric altitude. In some cases, it will need to broadcast a time mark and an emergency status indication.

With regard to the range for broadcasting MEs, 14 USC 310(g)(2) states:

Any broadcasting device used to meet the requirements of this section must be integrated into the unmanned aircraft without modification to its authorized radio frequency parameters and designed to maximize the range at which the broadcast can be received, while complying with 47 CFR part 15 and any other applicable laws in effect as of the date the declaration of compliance is submitted to the FAA for acceptance. (Emphasis added.)

Utilizing the 1 watt of output power provided for in FCC regulations, 47 CFR 15.247(b)(1), a RID system at +30 dBm (1 watt) on 2.4 GHz would transmit identification information more than 1 mile omnidirectionally. This will enable a wide swath of people, over large distances, to persistently track drones.

RDQ attorney Rupprecht performed a propagation study using this RID standard and compared it to the PCS 700 MHz band at +27 dBm, the cell phone addressed in U.S. v. Carpenter, covered previously in Lawfare. The blue area depicts RID and the smaller red circle, the Carpenter cell propagation (see Figure 1).

Figure 1. Depiction of the comparative reach of RID capabilities (blue) vs. the cell phone in Carpenter (red).

Source: Rupprecht Propagation Study Utilizing Google Earth.

This RID capability must be either hardwired into the drone (Standard Remote ID) or attached externally in the form of a module (Broadcast Module RID or BMID). Drones without RID capabilities may fly only in FAA-recognized identification areas (FRIAs), specially designated flight areas carved out for non-BMID or Standard RID drones, under the general purview of community-based organizations and educational institutions.

Manufacturers have until September 2022 to either integrate RID into their drones or build BMID modules. Drone operators have until September 2023 to either fly RID-compliant Standard or BMID drones or be relegated to flying in a FRIA.

When RID capabilities go live, not only will law enforcement and national security agencies be able to access a drones MEs in near real time, but they will be able to correlate the ME information with other personally identifiable pilot data in FAA databases. In other words, the rule enables persistent surveillance of drones and their operators in real time, with precise locational data, without a warrant.

This last bit caught the attention of a lot of folks, including some of the public commenters during the pendency of the rule. Another attention-grabber: The final rule deviated significantly from the FAAs NPRM version, which had focused on a network-based RID solution. Under the originally proposed rule, Standard RID drones would have been required to have both network and broadcast capabilities. Limited RID drones, which did not make their way into the final rule, would have been network only. The final rule deviated from the proposed rule in other ways as well. Enter: RDQ.

The Suit

RDQ is an Orlando, Florida-based multimillion-dollar e-commerce shop that caters to the first-person view (FPV) drone-racing crowd. FPV drone pilots, some of whom are children, use small, light drones to fly fast through elaborate tracks, in places such as parks and forests. Flying in a FRIA would be too constraining because these will not be the same type of public and wide open spaces that FPV pilots have the freedom to access now. And then theres the geolocational aspect of RID, which could allow anyone, for example, to track and find a child flying a drone alone in the woods.

RDQs co-founder and CEO, Tyler Brennan, an active-duty U.S. Air Force F-15E pilot said of the suit that he seeks to protect the constitutional rights of U.S. citizens to be free from unreasonable searches from the government when they are flying in their own backyards.

To this end, Brennan gathered a legal team that includes not only two lawyer-pilots, Rupprecht and Yodice, but also a partner in the Parlatore Law Group, Elizabeth Candelario.

The RDQ team filed its case a year after the final RID rule launched. It was not until this past August, however, when the team filed its 14,000+-word brief and appendix, that the constitutional and other bases for its challenges became clear. RDQ alleged that the rule is a violation of the Fourth Amendment because it allows warrantless tracking in a backyard.

RDQs other challenges to the rule included that the FAA arbitrarily and capriciously relied on undisclosed ex parte communications during the rulemaking process, the final rule was not a logical outgrowth from the NPRM, the FAA failed to comply with a legal mandate to consult with Radio Technical Commission for Aeronautics (RTCA) and the National Institute of Standards and Technology (NIST), and the agency failed to address significant public comments as required by the Administrative Procedure Act.

After receiving a deadline extension, the governments nine-person legal team fired back in October. John E. Putnam, the Department of Transportation acting general counsel and deputy general counsel, leads this group of attorneys from the Transportation Department, the FAA and the Department of Justice. The other members include three attorneys from the Justice Department, including Casen B. Ross, who argued the case on behalf of the government, and an FAA senior attorney, who was directly involved in its RID rulemaking efforts.

The governments brief outlined a host of justifications and fallbacks to support the rule, some of which were never mentioned in the rulemaking. On the constitutional front, citing the Supreme Court case U.S. v. Karo, the brief took the position that merely requiring RID technology on board a drone does not equate to an unreasonable search.

The government also explained that the movement of planes in public view does not give rise to a reasonable expectation of privacy. As a failsafe, the brief also noted that even if the rule violated the Fourth Amendment, the special needs exception would legally justify it. The special needs doctrine recognizes that law enforcements special needs justify a search predicated on less than the Fourth Amendment probable cause requirement when the objective serves non-law enforcement ends.

In mid-October, the Association for Unmanned Vehicle Systems International (AUVSI), the worlds largest nonprofit advocacy organization for unmanned vehicles, filed an amicus curiae brief in support of the FAAs position. In an interesting twist, in the context of disputing RDQs standing, attorneys for AUVSI, not the FAA or RDQ, opened up Pandoras box on the controversial issue of avigation, or landowner rights in low-level airspace above their property. AUVSI averred that RDQs Fourth Amendment assertions must fail because the FAA has jurisdiction down to the lowest blade of grass, including in ones own backyard, as I have explored previously.

Because of AUVSIs brief, RDQ responded quoting the Supreme Courts Causby case (The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.) and the Department of Transportations own position in a September 2020 Government Accountability Office report that disavowed the FAAs jurisdictional claims in the airspace over private property. In other words, even the FAAs parent agency is on record directly contradicting the posture the aviation regulator has taken in this case on the extent of its authority.

The Arguments

On Dec. 15, Rupprecht argued for RDQ before a panel of three judges: Wilkins, Cornelia Pillard and Justin R. Walker.

Going right for the jugular on the Fourth Amendment, Rupprecht said, People have a reasonable expectation of privacy in their backyard. With RID here, law enforcement, without any warrant, and its unlimited, can track an individual in his backyard.

The judges cut off Ross, the Justice Department attorney representing the FAA, after his opening sentence and spent the next 27 minutes peppering him with Fourth Amendment-related questions about reasonable expectations of privacy and persistent geolocational tracking. Wilkins asked, for example, What is the governments interest in obtaining RID data from a drone operating entirely within ones property?

Ross responded that drones often go beyond the barriers of ones private property and that other drones can also enter ones property and cause safety and security risks. In reply, Walker quipped, It seems a little bit extreme to say you can regulate what someone does with a drone on their own private property because what they do on their own private property might interfere with what a trespasser does.

The next series of questions involved whether or not the FAA is currently tracking drones and triangulating data internally, which Ross conceded is possible.

Ross noted there was no evidence the FAA was actually monitoring drones and a line was drawn, in Karo, between installing a device and tracking someone with it. The judges seemed to indicate that was a distinction without a difference here because the installation of RID technology on a drone allows for persistent tracking, and the FAA created the RID authority so that the government could exercise it.

The argument culminated in this enlightening series:

Walker: I am going to ask you a long question and it will end with What do you want me to do? Assume I think this rule does not violate the rule in 99.9 percent of its applications because although Carpenter and Jones carved out some still narrow exceptions to this general rule, I think there is a general rule that what someone does in public is not private, and most of the time when people fly drones, its in public. Now even say above your own treeline counts as in public. But there may be times where someone might not even leave the walls of their own house and they are flying a drone on their own property below the treeline and that drone and that person cannot be seen by anyone unless someone were to trespass on their property. In that instance, I think your rule is unconstitutional. What do you want me to write in an opinion if I get to write this?

Ross: My understanding is that the rulemaking would have to be done again.

Rupprecht then had three minutes to reattack. He noted that the FAA failed to mention the special needs doctrine in the final rule, which Ross had pitched to salvage the rule, in the rule itself. Quoting the Supreme Courts majority opinion in Motor Vehicle Manufacturers Association v. State Farm Insurance, he noted, Courts may not accept appellant counsels post hoc rationalizations for agency action. He continued, There was a whole lot said trying to rescue this doomed ship, this Fourth Amendment case, but they had the opportunity and they did not bite at that apple.

Whats Next?

A ruling is likely to come sometime in early 2022. Which party will come out on top remains to be seen.

Still, it speaks volumes that the judges pushed the government on the Fourth Amendment for three-quarters of the time allotted for both parties arguments. Perhaps even more telling, the government candidly conceded the FAAs rule falls short on Fourth Amendment accounts in the limited circumstances Walker identified.

At the same time, the panel seemed to be inclined to agree that in 99.9 percent of the cases, the application of remote ID would pass muster. The judges even threw the government a lifeline, suggesting that possible RID carve-outs could be granted for ranchers and backyard flyers. But the government did not back away from its all-or-nothing approach.

Interestingly, the FAA also did not take the position in its briefs or arguments that it did within the actual RID rule: that it deferred to law enforcement and security agencies to abide by the Constitution. Presumably, that would include obtaining a warrant when required. As the case progressed, the agency simply went all-in on a no warrant needed here posture.

Should RDQ prevail, the rule would be vacated. The effect of an order would be a redo of the RID rule. The practical impacts of this would be profound. Law enforcement and national security agencies will have to continue waiting for a valid universal drone identification schema to detect and, as permitted, mitigate drone threats. The commercial drone industry will also take a hit because the FAA incorporated RID as a predicate technological requirement of drone operations over people and a future low-altitude privatized unmanned traffic management system.

It will also be interesting to see how the court will address the avigation issue. In its questioning, the panel seemed to presume that individuals had property and privacy rights below navigable airspace (500 feet above ground level) or, as they said, below the treeline, over ones privately owned property, in certain circumstances. This could have ramifications for government officials desiring to control drones in such areas, as well as for the collection of evidence in such areas with their own drones. As for the commercial drone sector, companies like Amazon that want to overfly someones backyard for their drone delivery service might just have to pay for an avigation easement.

Regardless of the outcome in this case, balancing citizens rights with security, privacy and safety when it comes to drones will remain a tough challenge for years to come.

Read more here:
D.C. Circuit May Blow Up the Remote Identification Rule for Drones - Lawfare

Item 1.01 Entry into a Material Definitive Agreement

On December 22, 2021, Bentley Systems, Incorporated (the "Company") entered intoa fourth amendment by and among the Company, certain of its subsidiaries, PNCBank, National Association, as administrative agent, and the lenders partythereto ("Fourth Amendment") in connection with the Amended and Restated CreditAgreement, dated as of December 19, 2017, by and among the Company, PNC Bank,National Association, as administrative agent, and the lenders from time to timeparty thereto (the "Credit Facility").

The Fourth Amendment amended the Credit Facility to, among other things,(i) provide for a new $200.0 million senior secured term loan with a maturity ofNovember 15, 2025 (the "New Term Loan"), which New Term Loan amortizes 2.5% perannum for the first two years and 5.0% per annum for the third and fourth yearsand bears interest with reference to the net leverage ratio, (ii) modify theincremental credit facility provisions to permit both incremental revolvingcommitments and incremental term loan commitments in an aggregate amount up to$200.0 million, (iii) modify the net leverage ratio and the net senior securedleverage ratio covenants to increase the deduction rate of foreign unrestrictedcash from 65% to 100%, (iv) exempt immaterial subsidiaries (who account for lessthan 5% of the revenues and total assets of the Company and its consolidatedsubsidiaries) from the obligations to guarantee the Credit Facility and pledgetheir assets as security therefor, (v) modify the benchmark replacementprovisions, (vi) incorporate provisions regarding erroneous payments by theadministrative agent, and (vii) suspend the swingline loans denominated in Eurosand British Pounds Sterling until such time a new benchmark is selected as thereplacement for LIBOR.

The foregoing description of the Fourth Amendment is qualified in its entiretyby the full text of the Fourth Amendment, which is filed herewith asExhibit 10.1 and is incorporated into this Item 1.01 by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under anOff-Balance Sheet Arrangement of a Registrant.

The information set forth in Item 1.01 is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No. Description10.1 Fourth Amendment, dated as of December 22, 2021, to the Amendedand Restated Credit Agreement dated as of December 19, 2017, by andamong the Company, PNC Bank National Association, as administrativeagent, and the lenders party thereto104 Cover Page Interactive Data File (formatted as inline XBRL)

Edgar Online, source Glimpses

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BENTLEY SYSTEMS INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance...

Maybe there is hope

This could get ugly | Letter, Dec. 27

A letter writer warning us that the United States could become the Ugly States of America may very well be right. But could there be hope on the horizon? Sen. Joe Manchin followed the lead of Sen. John McCain and voted independently, representing a very red state as a Democrat. Colorados Democratic governor announced that he will work toward eliminating the state income tax. Gov. Ron DeSantis and Sen. Marco Rubio announced recently that they are addressing climate change. President Joe Biden thanked former President Donald Trump for his successful project that resulted in the COVID vaccine in record time. Lets hope and pray that these recent events have set the course for our future. If our leaders cannot find compromise and continually engage in divisive fighting, regardless of party, citizens are denied the real process that we expect our leaders to uphold and follow.

Rand Moorhead, St. Petersburg

Florida cases skyrocket | Dec. 25

I read in the Tampa Bay Times that Florida cases of COVID have risen 323 percent over the previous week, with an increase in positivity rate from 5.3 percent to 13.8 percent. Thats stunning. Yet out in the public, I find very few precautions no social distancing and very few mask-wearers. So where is our fearless leader, Gov. Ron DeSantis? Where are his pop-up town halls (never announced to the public, only to his supporters)? Where is his marvelous leadership? When will he start to exercise the responsibility of his position?

Fern Williams, Zephyrhills

Times have changed | Letter, Dec. 25

A letter writer sees the Constitution as outdated and in need of tweaking. Im sure that the Founding Fathers would agree because they devoted the entirety of Article 5 to the method for doing the tweaking. Its called the amendment process. However, there are many who want to shortcut the process because they know that the changes they desire would never be acceptable to the majority of the states or the citizenry. Therefore, they prefer that a handful of black-robed justices make the changes based on their own personal beliefs and biases. Its a good practice when those judicial opinions match your own; otherwise, not so much. Furthermore, if the Second Amendment doesnt apply to modern firearms, then maybe the First Amendment doesnt apply to radio, television or the internet. The Fourth Amendment doesnt apply to search by wiretap or electronic surveillance. Such arguments surely do not reflect critical thinking.

John S.V. Weiss, Spring Hill

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Maybe there is hope for the future after all | Letters - Tampa Bay Times

Shipwrecks, fences and internal disagreements marked the European Unions efforts this year to stave off new arrivals of refugees while trying to forge a humane migration policy consistent with international law.

Al Jazeera takes a look at some of 2021s significant developments on the issue.

March 20 The migration or interior ministers of Greece, Cyprus, Malta, Italy and Spain meet in Athens. They call for a strengthening of external borders and for a European mechanism to return migrants and refugees to their countries of origin.

March 29-30 European Home Affairs Commissioner Ylva Johansson visits the Reception and Identification Centres on Samos and Lesbos for the first time. She announces the approval of 155 million euros ($175m) to build new camps on Lesbos and Chios, in addition to the 121 million euros ($137m) approved in 2020 for new camps to be built on Samos, Leros and Kos, and 22 million euros ($25m) to expand the reception centre at Fylakio, near the Turkish border.

April 22 A shipwreck off the Libyan coast claims the lives of 130 people. The search and rescue ship Ocean Viking finds dozens of bodies in the water.

April 24 Greece shuts down the Kara Tepe refugee camp on Lesbos, herding its hundreds of residents into a tent city at Mavrovounio. Following the burning of Moria camp in September 2020, Mavrovounio is the only large-scale refugee facility on the island. A new camp is to replace it in 2022.

May 11 Greece proposes authorising Frontex the EUs collective border and coastguard agency to operate outside EU waters to better prevent the flow of migrants towards Europe. In the context of the Mediterranean, this could imply patrolling international waters, but in the Aegean, it would almost certainly mean patrolling Turkish territorial waters.

May 18 Thousands of migrants and refugees from African countries try to swim to the Spanish enclave of Ceuta from Morocco, threatening to overwhelm security forces. Video recordings show authorities throwing people back into the sea, but the European Commission remains silent about the incident. Dozens of migrants and refugees also try to enter the Spanish enclave of Melilla.

May 24 Greek Prime Minister Kyriakos Mitsotakis receives Frontex chief Fabrice Leggeri in Athens, offering much-needed political support in the midst of a European Parliamentary effort to remove the Frenchman from his post over allegedly turning a blind eye to illegal pushbacks at EU borders.

May 26 Belarusian President Alexander Lukashenko threatens to allow migrants and drugs to pour into neighbouring countries. By September, the number of Iraqi refugees crossing into Lithuania from Belarus was reported to be 4,100 by September 55 times the previous years flows.

June 7 A Greek ministerial decision enters into force deeming Turkey a safe third country for Afghans, Syrians, Somalis, Pakistanis and Bangladeshis. These nationalities represent 67 percent of asylum seekers in Greece. They are now rarely processed for asylum. Instead, they are asked if there is any reason why they should not apply next door in Turkey.

June 29 The European Asylum Support Office welcomes an agreement to reestablish the body as a fully-fledged European Union Agency for Asylum, with more autonomy and funding. It will ultimately be tasked with redistributing asylum applications across the EU according to member states economic and social capacity to absorb them. A quota system first proposed in 2015 was rejected by a core of anti-immigration states.

July 11 Authorities in Havana, Cuba suppress a large demonstration sparked by food shortages. In the weeks that follow, police go door-to-door, arresting participants who had been filmed. The crackdown leads to a covert exodus of possibly thousands of Cubans to Moscow, Minsk, Istanbul and Belgrade, from where they make their way into EU member states to seek asylum.

July 15 The European Parliament issues a report saying Frontex was witness to pushbacks it did not prevent. The report does not find direct Frontex involvement in pushbacks. Members of the European Parliament or MEPs had called on Frontex chief Fabrice Leggeri to resign over pushbacks in December 2020.

July 19 Police on Lesbos hold a press conference to announce they were indicting 10 individuals across four non-governmental organisations or NGOs for alleged espionage and trafficking activity. The NGOs in question are all active in search and rescue operations and have accused the Hellenic Coast Guard of conducting abandonments at sea.

July 21 Greece and Germany issue a joint declaration in Berlin, calling for fair distribution of asylum applicants among member states.

July 25 Possibly the worst single tragedy of the year takes place offshore Libya, with 150 people reportedly drowning in a shipwreck. Filippo Grandi, the head of the UNs refugee agency, urges countries to assume their responsibilities in rescuing those in distress.

July Greeces government rounds up thousands of homeless refugees and moves them into camps across the mainland.

August 15 The Taliban enters Kabul as then-President Ashraf Ghani flees, sealing their control over almost the entire country after a three-and-a-half-month campaign. Panicked residents rush to Kabul airport to flee Afghanistan, leading to an international campaign to covertly rescue as many as possible. Greece receives 819 Afghan evacuees by the end of November.

August 19 Forty-five people, including children, drown north of Libya when the engine on their boat explodes.

August 25 Greece submits to parliament a bill expanding police authority to order deportations, tightening the appeals process and shortening voluntary departure windows.

September 20 The Samos Closed Controlled Access Centre begins to receive the refugee population from the town of Vathy.

September 22 Greece receives its first Afghan evacuees since the fall of Kabul seven female members of parliament and their families.

September 28-29 Some 300 African migrants and refugees attempt to enter Ceuta, after false rumours that border security was relaxed.

October 1 The Greek migration ministry takes over the management of cash aid to refugees, but payments are subsequently delayed causing hunger and difficulty of movement.

October Lithuania continues work on a 500 kilometre-long (311 miles) fence along its border with Belarus. By then, refugees have been pouring over Belaruss borders with Latvia and Poland as well. The EU accuses Belarusian President Alexander Lukashenko of attempting to destabilise neighbouring countries.

October 31 The Hellenic Coast Guard rescues 380 refugees in a stricken ship south of Crete, in the largest refugee haul of the year. Sattelite-navigation system or GPS information supplied by NGOs suggests the authorities tried to send it back to Turkey before bringing passengers onshore in Kos.

November 12 A refugee-filled boat sinks off the Libyan coast. Forty-six people are rescued and 30 bodies retrieved, but as many as 74 others are feared drowned.

November 24 Twenty-seven refugees drown in the English Channel as they try to cross from France to Britain, in what was billed as the worst such tragedy in northern European waters.

November 27 The Leros and Kos Closed Controlled Access Centres are inaugurated.

November The European Commission shuts down flights bringing refugees to Belarus, and persuades Iraq to repatriate some of its nationals.

December 1 The European Commission puts forward a set of temporary asylum procedures on the borders of Latvia, Lithuania and Poland with Belarus, which allow them to extend asylum registration and to apply simplified and quicker national procedures to deport those whose asylum applications are rejected.

December 20 Albania and North Macedonia are added to the Greek migration ministrys official list of safe third countries.

December 23-25 Three sailing boats overfilled with refugees capsizes in relatively mild weather in three different parts of the Aegean, leading to at least 31 deaths and dozens of people missing. It is the worst Aegean death toll since October 2015, when a boat sank off the coast of Lesbos.

Continued here:
Timeline: The European Union and migration in 2021 - Al Jazeera English

Steam rises from cooling towers of the Electricite de France (EDF) nuclear power plant in Belleville-sur-Loire, France October 12, 2021. REUTERS/Benoit Tessier

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Jan 1 (Reuters) - The European Union has drawn up plans to label some natural gas and nuclear energy projects as "green" investments after a year-long battle between governments over which investments are truly climate-friendly.

The European Commission is expected to propose rules in January deciding whether gas and nuclear projects will be included in the EU "sustainable finance taxonomy".

This is a list of economic activities and the environmental criteria they must meet to be labelled as green investments.

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By restricting the "green" label to truly climate-friendly projects, the system aims to make those investments more attractive to private capital, and stop "greenwashing", where companies or investors overstate their eco-friendly credentials.

Brussels has also made moves to apply the system to some EU funding, meaning the rules could decide which projects are eligible for certain public finance.

A draft of the Commission's proposal, seen by Reuters, would label nuclear power plant investments as green if the project has a plan, funds and a site to safely dispose of radioactive waste. To be deemed green, new nuclear plants must receive construction permits before 2045.

Investments in natural gas power plants would also be deemed green if they produce emissions below 270g of CO2 equivalent per kilowatt hour (kWh), replace a more polluting fossil fuel plant, receive a construction permit by Dec. 31 2030 and plan to switch to low-carbon gases by the end of 2035.

Gas and nuclear power generation would be labelled green on the grounds that they are "transitional" activities - defined as those that are not fully sustainable, but which have emissions below industry average and do not lock in polluting assets.

"Taking account of scientific advice and current technological progress as well as varying transition challenges across member states, the Commission considers there is a role for natural gas and nuclear as a means to facilitate the transition towards a predominantly renewable-based future," the European Commission said in a statement.

To help states with varying energy backgrounds to transition, "under certain conditions, solutions can make sense that do not look exactly 'green' at first glance," a Commission source told Reuters, adding that gas and nuclear investments would face "strict conditions".

EU countries and a panel of experts will scrutinise the draft proposal, which could change before it is due to be published later in January. Once published, it could be vetoed by a majority of EU countries or the European Parliament.

The policy has been mired in lobbying from governments for more than a year and EU countries disagree on which fuels are truly sustainable.

Natural gas emits roughly half the CO2 emissions of coal when burned in power plants, but gas infrastructure is also associated with leaks of methane, a potent planet-warming gas.

The EU's advisers had recommended that gas plants not be labelled as green investments unless they met a lower 100g CO2e/kWh emissions limit, based on the deep emissions cuts scientists say are needed to avoid disastrous climate change.

Nuclear power produces very low CO2 emissions but the Commission sought expert advice this year on whether the fuel should be deemed green given the potential environmental impact of radioactive waste disposal.

Some environmental campaigners and Green EU lawmakers criticised the leaked proposal on gas and nuclear.

"By including them... the Commission risks jeopardising the credibility of the EU's role as a leading marketplace for sustainable finance," Greens president Philippe Lamberts said.

Austria opposes nuclear power, alongside countries including Germany and Luxembourg. EU states including the Czech Republic, Finland and France, which gets around 70% of its power from the fuel, see nuclear as crucial to phasing out CO2-emitting coal fuel power.

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Reporting by Kate Abnett; Additional reporting by Sabine Siebold; Editing by Frances Kerry and Louise Heavens

Our Standards: The Thomson Reuters Trust Principles.

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EU drafts plan to label gas and nuclear investments as green - Reuters