Jerzy Jendrośka Public participation in environmental decision-making – scope of application PARTICIPATORY AND PROCEDURAL RIGHTS IN ENVIRONMENTAL MATTERS Warsaw, 4-6 March 2015

Content  Genesis and historical development  Public participation pillar in the Aarhus Convention  Activities covered  Decisions covered  Subjects of obligations  Subjects of rights  Requirement for „early public participation, when all options are open”  Approach to judicial review

Public participation in environmental protection – historical development  German medieval local regulations –noxious and strenuous activities could not be carried out without the consent of the neighbours  Prussian Industrial Code 1845 –public participation in granting industrial licenses for potentially harmful activities  Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants –applications for authorization and the decisions of the competent authorities are made available to the public concerned in accordance with procedures provided for in the national law  Directive 85/337/EC EIA  Directive 96/61/EC IPPC –napplications for permits for new installations or for substantial changes are made available for an appropriate period of time to the public, to enable it to comment on them before the competent authority reaches its decision. That decision, including at least a copy of the permit, and any subsequent updates, must be made available to the public.  Aarhus Convention  Public Participation Directive 2003/36 amends EIA and IPPC Directives to implement Aarhus Convention

Public participation pillar in the Aarhus Convention  Decisions on individual activities/projects „which may have a significant effect on the environment” – Art. 6  GMO decisions – Art. 6 bis  Plans/programs „relating to environment”– Art. 7  Policies „relating to environment” – Art. 7  Normative acts/legally binding rules „that may have a significant effect on the environment” – Art. 8  Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters (document ECE/MP.PP/2014/8) Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters

Legal nature of obligations  Individual decisions –Art.6 permits – „shall” –Art.6 bis GMO decisions – „shall”  Strategic decisions –Art 7 - Plans and programs - „shall” –Art.7 – Policies - „shall endeavor” –Art. 8 - Executive regulations and other legally binding rules - „shall strive to promote” and „should”

Public participation in EU law  Specific activities –EIA DirectiveEIA Directive –IED DirectiveIED Directive –Habitat DirectiveHabitat Directive –Seveso III DirectiveSeveso III Directive –other directives  Plans and programs –Public Participation DirectivePublic Participation Directive –SEA DirectiveSEA Directive –Water Framework DirectiveWater Framework Directive –Seveso III DirectiveSeveso III Directive –other directives

Activities covered  Art.6.1 a) - list of activities in Annex I –based on EIA Directive Annex I and IPPC Directive –any other activity subject to domestic EIA (point 20)  Art. 6.1 b) - other activities „which may have a significant effect on environment” –language to cover EIA Directive Annex II projects –„Parties shall determine...” = screening and test (para of Maastricht PP Rec)  Changes and extensions

Concept of activity  Proposed activity under Aarhus and „proposed activity” under Espoo Convention and „project” under EIA Directive  Definition of porject under EIA Directive (art. 1.2.(a): - the execution of construction works or of other installations or schemes, - other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources  Broad definition of „construction” –modernisation of existing road (C-142/07 CODA)C-142/07 –demolition works (C-50/09, Commission v. Ireland,)C-50/09  Other interventions - for example: afforestation or defforestation, storage of scrap iron, intensive fish farming

Decisions covered  Multiple decisionmaking –Public participation only once? –Public participation with each decision?  Criteria –Regulatory vs financing –Regulatory vs agreements (ACC/C/22 France)ACC/C/22 France –„Whether to permit” –Significance test (ACC/C/17 –EU )ACC/C/17 –EU  EU requirements –PP required for development consent with EIA and IPPC (IED) permit EIA seen in the context of Crystal Palace (C-508/03) Reconsiderations and updates –habitat assessment

Reconsiderations and updates – art.6.10 Aarhus  Current tendency to restrictive interpretation of the concept of project vs art.6.10 (and case ACC/41/Slovak Republic) - physical change vs change in the environment and change in legal conditions) –Extension of consent for operation of the landfill ((C-121/11, Pro-Braine and Others)C-121/11 –Extension of consent for operation of the airport ((C-275/09, Brussels Hoofdstedelijk Gewest and Others,)C-275/09  Approaches –Changes interpreted boadly – not only to cover physical change in the project itself (AG Kokot in Case Krizan) –Extension of lifetime as new activity (Espoo IC in case Rivne) –ACC in case Slovakia

Subjects of obligations  Public authorities –Competent authority vs other authorities  Delegation of tasks –Specialised bodies –Local authorities  Role of developers  Compare tables at Maastricht PP Recommendations

Subjects of rights  Public vs public concerned  Public concerned –impact not only routine but also in case of accidents  Non discrimination clause art. 3.9  Participation of NGOs in advisory groups (ACC/51/Romania)  Foreign public (ACC/71/Czech Republic) Temelin NPP –Non-discrimination – equal opportunities to participate  Espoo and Aarhus (ACC/71/Czech Republic) Temelin NPP, Hinkley Point NPP cases

Requirement for „early public participation, when all options are open” (art.6.4)  Does „early…when all options are open” –relates to sequence of decisions (Delena Wells Case)? –relates to particular decision (scoping in EIA)? –both?  Can public participation after construction is finished be considered „early” (C-215/06 EC vs Ireland – for EIA and ACC-17 for IPPC)C-215/06  Concept of tiered decision-making (para of Maastricht PP Rec)  So called O option (para 16 of Maastricht PP Rec)  Need for repeated public participation (para 15 of Maastricht PP Rec)

Approach to judicial review  Indication regarding transposition and implementation –Original directive –Amending directives  Directive –Text including recitals (preamble) –Guidance CJEU verdicts EC Guidance  Recitals (preamble)– reference to Aarhus  Aarhus –Text including recitals (preamble) –Guidance Findings of ACC Implementation Guide Mastricht Recomendations