Tag: EIA

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Compensation, nature conservation and New York Law – The USSC in Koontz

In Koontz, the United States Supreme Court further specified the limitations applicable to agencies when they  impose limitations to the use of private property. In Koontz, under the New York State Environmental Quality Review Act (SEQRA), the owner of the land was denied wetland related permits. The relevant agency had demanded that Koontz either reduce the scope of the project and accept limiting conditions of use over the remainder, or finance conservation-related improvements to publicly held land some distance away.

The Supreme Court had earlier held in Nolan per the regulatory taking doctrine, that there must be an “essential nexus” between a “legitimate state interest” and the condition that the reviewing agency seeks to impose. In Koontz, it applies this limitation not just to the restrictions which the owner of the land has to accept vis-a-vis his own property, but also to any other government measure which imposed a financial burden on said owner. The lower courts had argued that the Nolan criteria do not apply to demands for money. The Supreme Court held that they do.

The finer details may escape me (see for excellent analysis Daniel Richmond and in Jeremy Kozin in the New York Law Journal) however it would seem that there is excellent comparative analysis to be made re the laws on regulatory takings and compensation measures in nature conservation.

Geert (thank you to Ludo Veuchelen for alerting me to the judgment).

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Burridge v Breckland at the Court of Appeal: of salamis and EIA

In Burridge v Breckland, the Court of Appeal (permission to appeal with the Supreme Court is under consideration) had to consider the all too familiar issue of ‘salami’ projects: developments which singularly do not meet the thresholds to require an EIA but which do when joined together. Splitting needs to be considered carefully, for it may disguise an attempt to circumvent EIA requirements. On the continent, it is referred to as ‘saucisonner’.

In the case at issue, planning permissions was granted, subject to conditions, to Greenshoots Energy Ltd for a biomass renewable energy plant, and for a combined heat and power (‘CHP’) plant on nearby land. The CHP plant would be fuelled by biogas produced by the renewable energy plant.  In an earlier (later amended) stage of the application, the two plants were effectively joined: the CHP plant was moved ‘to have the environmental advantage of moving a part of the installation farther away from the village [ ].’ An underground gas pipeline is to carry the fuel between the two sites.

Appellant requested that the permits be quashed, on the basis that no EIA, indeed not even screening was carried out vis-a-vis the amended scheme.

The ECJ has unequivocally rejected inter alia in Ecologistas en Acción (referred to by the Court of Appeal), the artificial splitting of projects to circumvent EIA requirements:

‘as the Court has already noted with regard to Directive 85/337, the purpose of the amended directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the amended directive (see, as regards Directive 85/337, Case C-392/96 Commission v Ireland [1999] ECR I‑5901, paragraph 76, and Abraham and Others, paragraph 27). [Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid, [2008] ECR I-6097, paragraph 44]

In the case at issue, the splitting may not have been artificial, but it was certainly a reality. Hence at the least a renewed screening ought to have been carried out.  A consequential further issue related to the impact of the earlier screening, which had been carried out vis-a-vis the unamended, initial application, and which had decided against the need for an EIA. Was this to have any impact on the Court of Appeal’s decision? Here, (the majority of) the CA thankfully adopted the only sensible approach: separation of powers. Even if it might be unlikely that a different screening opinion were to be taken vis-a-vis the amended application, that is for the local authority to consider: not the court.

The two decisions were quashed.

Should the Supreme Court consider the issue, I shall of course revisit in due course.

Geert.

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Is justice what you can afford to be done? ECJ turns to Aarhus Convention to apply ‘not prohibitively expensive’ in the EIA Directive.

In Edwards, the European Court of Justice (‘ECJ’) turned to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, to interpret the provision ‘not prohibitively expensive’ in the European Directive on Environmental Impact Assessment (‘EIA’). These provide that members of the public (with sufficient interest) must have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive. Any such procedure must be, in the words of the Directive, ‘fair, equitable, timely and not prohibitively expensive.’

The House of Lords had affirmed a Court of Appeal’s decision to dismiss the appeal of Ms Pallikaropoulos and, on 18 July 2008, ordered her to pay the respondents’ (including the Environment Agency) costs of the appeal, the amount of which, in the event of disagreement between the parties, was to be fixed by the Clerk of the Parliaments. The respondents submitted two bills for recoverable costs in the amounts of GBP 55 810 and GBP 32 290. The jurisdiction of the House of Lords was transferred to the newly-established Supreme Court and the detailed assessment of the costs was carried out by two costs officers appointed by the President of the Supreme Court. In that context, Ms Pallikaropoulos relied on Directives 85/337 and 96/61 to challenge the costs order that had been made against her.

The Supreme Court asked the ECJ inter alia

– whether the question whether the cost of the litigation is or is not “prohibitively expensive” within the meaning of Article 9(4) of the Aarhus Convention as implemented by [those] directives be decided on an objective basis (by reference, for example, to the ability of an “ordinary” member of the public to meet the potential liability for costs), or should it be decided on a subjective basis (by reference to the means of the particular claimant) or upon some combination of these two bases?, and whether

– in considering whether proceedings are, or are not, “prohibitively expensive”, is it relevant that the claimant has not in fact been deterred from bringing or continuing with the proceedings?

In 2003, the EIA Directive had been amended and specific reference had been made to the Aaurhus Convention with which, the Directive said, the EIA Directive had to be ‘properly aligned’.

The ECJ held that the cost of proceedings must neither exceed the financial resources of the person concerned nor appear, in any event, to be objectively unreasonable.  As regards the analysis of the financial situation of the person concerned, the assessment which must be carried out by the national court cannot be based exclusively on the estimated financial resources of an ‘average’ applicant, since such information may have little connection with the situation of the person concerned. The national court may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure and the potentially frivolous nature of the claim at its various stages. That the claimant has not been deterred, in practice, from asserting his or her claim is not in itself sufficient to establish that the proceedings are not, as far as that claimant is concerned, prohibitively expensive.

Plenty of criteria therefore for the Supreme Court to consider, altogether a (slight but important) dent in Member States’ national civil procedure rules.

Geert.

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The ECJ giveth and the ECJ taketh away in environmental impact assessment: Incremental projects subject to further EIA scrunity, but with limited scope for compensation

Two important weeks at the ECJ for those interested in the application of the Environmental Impact Assessment (EIA) Directive. In Case C-244/12 Salzburger Flughaven, the Court on 21 March rebuked Austria for operating a threshold for projects made subject to an EIA, which effectively meant that whole classes of projects (in particular: gradual extensions of small airports) are in advance exempt from EIA. In Case C-420/11 Leth, however, this time concerning Vienna-Schwechat airport, the Court on 14 March all but ruled out (see Hans Vedder for further analysis on the liability front) a Francovich type claim (compensation for a breach of EU law by a Member State) for pecuniary damage (a drop in property value) as a result of an infringement of the EIA Directive.

Ms Leth’s avenues for compensation may not be entirely closed off, however it is clear that the ECJ’s approach to the EIA Directive is one of extreme sympathy for the environment, less so for individuals’ damage as a result of insufficient EIA. As always, plenty of material to distinguish these cases from others (in particular, Leth), however the trend would seem clear.

Geert.

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Court of Justice rules on priority of ‘substantial’ v ‘procedural’ EU environmental law

28 February: Third ECJ judgment in the Terre Wallonne trilogy: can a national court temporarily uphold the effects of a national measure which, following an ECJ judgment, has been found to be illegal under the EIA Directive, with a view to avoiding the Member State being found to have violated the nitrates Directive? Those with a sense of drama pitched this as a battle between ‘procedural’ (EIA) and ‘substantial’ (Nitrates) EU environmental law (it is in this sense that this judgment is likely to have most precedent value).

Answer of the Court in Case C-41/11: YES, subject of course to conditions (including, which is a tricky assessment for the national court to make, having to find that complete annulment of the illegal measure would make the environment worse off.

One can imagine many other scenarios in almost all areas of EU law where this judgment will be called upon by those wanting to derive rights from illegal (under EU law) national measures which arguably uphold ‘higher’ ranking EU law.

Geert.

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