AG Opinion on Case C-411/17: EIA for existing installations and the CJEU’s struggle with international law
By Sebastian Bechtel
Currently pending before the CJEU is a fundamental issue regarding the assessment of environmental effects of major projects: Should their impacts only be reassessed when construction takes place? Or should there also be an environmental impact assessment (‘EIA’) if an aging project is allowed to continue operation many years beyond its originally projected lifetime, without any physical alterations?
Case C-411/17 requires the Court to address its own interpretation of the EIA Directive in an earlier judgement which arguably contradicts the EU’s obligations under international law. In her Opinion published in November last year, AG Kokott has therefore urged the Court to reverse its case law.
EIA is an essential procedure to prevent environmental impacts at source and to allow for public participation in decision-making. Since many major industrial facilities, such as energy infrastructure, operate over many years, the question as to when an EIA obligation arises for existing facilities is of crucial importance. Next to posing intricate legal questions concerning the EU legal order, the case is therefore of great practical relevance to environmental protection in Europe.
This commentary presents the relevant international and EU law developments leading up to this case, discusses AG Kokott’s Opinion and reflects upon the wider implications of Case C-411/17 for the development of EU environmental law and its interaction with the international legal order.
International and EU law developments preceding the case
On 17 March 2011, the CJEU adopted its judgement on case C‑275/09 Brussels Hoofdstedelijk Gewest and Others. The Court was asked whether an EIA is required for a renewal of an environmental permit without any change or extension of operation. It held that, “in the absence of any works or interventions involving alterations to the physical aspect of the site,” a renewal of an existing permit to operate an airport could not be classified as a “project” or “construction” for the purposes of the EIA Directive.[i]
About one month later, on 20 April 2011, Ukrainian NGO “Ecoclub” submitted information to the Implementation Committee of the UNECE Convention on Environmental Impact Assessment in a Transboundary Context (‘the Espoo Convention’)[ii] concerning a license renewal for the Rivne nuclear power plant located close to the Ukrainian border with Belarus and Poland. Ukraine had not applied the Convention to the renewal and the question was whether it should have, given that there were no significant changes to the plant itself. In its findings of 27 February 2014, the ECIC answered in the affirmative, holding that the Espoo Convention applied to such a renewal without the need for physical intervention (EIA/IC/CI/4, Annex, para. 45).
Again just 2 months later, a second international forum became involved. On 6 May 2014, Greenpeace Netherlands submitted a communication to the Compliance Committee under the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘Aarhus Convention’).[iii] The Aarhus Convention includes inter alia public participation requirements on activities with a significant impact on the environment (Article 6). The context of this decision is rather complex (see details here) but the central question posed to the Aarhus Convention Compliance Committee (‘ACCC’) was whether a decision to extend the design lifetime of Borssele nuclear power plant without physical alterations created obligations to provide for public participation under the Convention. On 4 October 2018, the Committee held that this was the case, characterizing the decision as an update of the operating conditions of the plant, which required public participation under Article 6(10) of the Convention (ACCC/C/2014/104 (Netherlands), paras 65-66).
At the time of these latter findings, Case C-411/17 was already well underway. The case concerned a 2015 Belgian law extending the operational lifetime of nuclear power plants “Doel 1” and “Doel 2” by ten years. The Belgian Constitutional Court referred nine questions asking inter alia if there had been a duty to conduct an EIA prior to that decision, referring specifically to the Espoo and Aarhus Conventions. The Court published Advocate General Kokott’s Opinion shortly after the Aarhus findings, on 29 November 2018.
The AG Opinion on Case C-411/17
In her Opinion, Kokott asserts that the interpretation of “project” in Brussels Hoofdstedelijk Gewest is incompatible with the EU’s obligations under the Aarhus and the Espoo Convention (para. 67). [iv]
Regarding the Espoo Convention, Kokott emphasizes that only few of the activities listed in the Annex to that Convention are defined over their “construction” (para. 77). She deduces from this that for other activities, such as a power plant, the production of electricity as opposed to the construction is the “activity”. She also argues that the above-mentioned findings of the ECIC also support this conclusion (para. 78). She further finds that there is a significant transboundary risk of the continued operation of the facility by another 10 years, while acknowledging that this may not be the case for very short extensions (paras 85-89).[v]
For the Aarhus Convention, Kokott argues similarly that the production of electricity is the actual activity concerned and therefore also constitutes a new activity (paras 92-93). She further considers that this conclusion is not overridden by a lex specialis of other provisions of the Convention (such as Article 6(10) or point 22 of Annex I to the Aarhus Convention).[vi]
Kokott accordingly proposes three ways out of this legal conflict (paras 111, 121 and 134), which are further discussed below.
Kokott then opines that the EIA had to take place before the adoption of the 2015 law extending the lifetime and not only at the permitting stage (paras 138-142). Finally, she interprets Article 2(4) of the EIA Directive consistently with the Espoo and Aarhus Conventions and considers that the application of this provision is excluded for transboundary EIAs (paras 145-146) and can only be justified for national EIAs if there is a “grave and imminent peril to an essential interest of the state concerned” (paras 157-159 and 161-162).
Internal consistency and compliance with international law
For one, the lifetime extension saga is an interesting example of the CJEU’s interaction with international law. Both the Aarhus and the Espoo Convention are “mixed agreements”, meaning that they have been ratified by the EU and the Member States separately, and the EU has chosen, at least as regards the aspects concerned here, to implement the international law obligations by way of the EIA Directive. There is therefore a great need for consistency in applying that Directive consistently with that Convention to prevent a situation where 28 Parties to both Treaties fail to fulfil their obligations.
At the same time, both agreements have compliance mechanisms whose findings are endorsed by the Meeting of the Parties (‘MOP’) making them not only binding on the Party concerned by acceptance but also relevant as means to interpret the Convention for all Parties.[vii] Based on Article 216(2) TFEU, which states that international agreements ratified by the EU are binding on the EU institutions and its Member States, findings endorsed by the MOP become relevant to determine EU law obligations.
The case therefore presents a possibility for the CJEU to demonstrate that it takes the international law obligations of the EU and its Member States seriously and finds a way to accommodate relevant international developments, even if that requires the Court to deviate from its earlier case law.
Three possible ways to resolve the issue
So what can the Court do? AG Kokott proposes three options to bring about this needed consistency and compliance: As a first option, she recommends to interpret the EIA Directive in line with the Aarhus Convention and Espoo Convention so as to categorize a 10 year extension of production of electricity as a project in itself – and thereby deviate from the exiting case law (para. 111). In that case, the lifetime extension would fall under Article 1(2)(a) in conjunction with point 2(b) of Annex I to the Directive.
As a second option, AG Kokott suggests to give direct effect to Article 6 of the Aarhus Convention and Article 3 of the Espoo Convention and apply the EIA Directive as a mechanism to comply with these obligations (para. 121). This presupposes that the Court considers a consistent interpretation of the EIA Directive with international law impossible.
As a third option, the Court could characterize the extension of production as a “change” of an existing activity under Article 4(1) in conjunction with point 24 of Annex I to the EIA Directive (para. 134). AG Kokott justifies such an interpretation by the fact that there is no threshold for a nuclear power plant in Annex I and that a 10 year extension would meet a possible de minimis threshold (paras 129-34).
The Espoo and Aarhus Convention Committees give little indication which of the three to choose, as they left the question open whether a lifetime extensions was to be characterized akin to a new activity or as a change or reconsideration/update of an existing activity.[viii] The “new activity” characterization underlies the first two of AG Kokott’s options, which would fundamentally shift the understanding of “project” from the act of construction to the operation of an activity, while the logic of a change underlies AG Kokott’s third option.
The differences between the first two options lies instead in whether the Court will rely on “indirect effect” (consistent interpretation) or “direct effect”. Interestingly, AG Kokott suggests that the result of using either would be the same: If the Court would find that consistent interpretation would be impossible because the terms of the EIA Directive cannot encompass a lifetime extension scenario, directly applying the Espoo and Aarhus Conventions would nonetheless require application of the EIA Directive and its national implementation as the pre-existing “framework” for that purpose. AG Kokott refers in that regard to Slovak Bears II (paras 58 & 60) and Protect (paras 38-39). In these cases, the Court recognized that the Aarhus Convention (in this case Article 6(1)(b)) may apply beyond the EIA Directive and accordingly Article 9(2) of the Convention may demand access to justice as a matter of direct effect of international law. However, the Court did not suggest that Member States would need to apply Article 11 of the EIA Directive to that end.[ix] Kokott’s second option therefore requires an additional step and it may instead be argued that a Member State would in this case be free to comply with the Aarhus and Espoo Convention requirements without directly applying the EIA Directive. However, this point appears merely academic because in order to meet the requirements of both Conventions, such a separate procedure would likely be indistinguishable from a “regular” EIA.
Broader relevance for EU environmental law
Next to these international law considerations, the case is of central importance for the development of EU environmental law. All three cases mentioned above (Rivne, Borssele and Doel 1/2) concerned nuclear power plants. Nuclear plants are a great example to illustrate the issue of lifetime extensions without EIA, as many nuclear plants were built in the 70s and 80s with a design lifetime of around 40 years, which means that it now needs to be decided whether to close the plants or extend the period. Since then environmental conditions, technical knowledge, public perceptions and priorities have changed substantially, so it is hard to argue why there should not be an EIA and participation before taking the decision to keep these plants on the grid.
However, the need for EIAs for lifetime extensions extends to many other kinds of projects covered by the EIA Directive, such as mines, combustion plants or chemical facilities. Many of these massive projects were licensed before the EIA Directive even entered into force, in particular in the Eastern European states that joined the EU only in the 2000s. There is therefore a sizable proportion of projects that have never been subject to EIA and which are continuously relicensed without their environmental effects ever being considered.[x] This would lead to the absurd result that the oldest and most polluting installations could escape assessment and public scrutiny, as long as they are not physically modified.
When does the obligation arise?
A final important aspect is that an extension of the lifetime of a plant does not only come about through the renewal of a construction permit. Both C-411/17 and the ACCC’s case[xi] concerned a plant that had been licensed for an indefinite period. However, both concluded that nonetheless the decisive factor was that there was a continued production of electricity which would have had to cease in the absence of the decision concerned.[xii] Accordingly, the requirement to apply an EIA arises also for the renewal of other permits which have been granted for a limited time and whose renewal is necessary for the continued operation of the plant. In the present case, the measure was an act of Parliament but it may as well be the renewal of other permits that are the precondition for the continued operation of the activity in question, such as an environmental or integrated permit. This broad interpretation prevents that Member States can circumvent the EIA Directive by only issuing construction permits unlimited in time.[xiii]
Given that the Advocate General Opinion was published on 28 November 2018, the CJEU’s judgement in this case can be expected soon. Kokott has prepared a menu of legal interpretations allowing the CJEU to choose. For the reasons set out above, it can be hoped that it likes one of the options. If the CJEU instead chooses to stubbornly defend its own case law, it will create a quagmire of conflicting norms and obligations for Member States and do a disservice to the European environment and the health of its inhabitants.
[i] C‑275/09 Brussels Hoofdstedelijk Gewest and Others, , para. 38.
[ii] All information concerning this procedure is available at: https://www.unece.org/environmental-policy/conventions/environmental-assessment/areas-of-work/review-of-compliance/committee-initiative/eiaicci4-ukraine.html .
[iii] All information concerning this procedure is available at: https://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/acccc2014104-netherlands.html .
[iv] Kokott’s Opinion includes some interesting discussion on the Habitats Directive and possible remedies but this blog post only concerns the question whether there was a duty to carry out an EIA (for a more complete summary, see here).
[v] In accordance with Articles 2(3) and 3(7) of the Espoo Convention, there is only a requirement to notify other states and conduct a transboundary EIA if a “significant adverse transboundary impact” is “likely”. In this case, Kokott reasonably concludes that such an effect can be assumed. However, an Espoo Party would in any event have been under the duty to “screen” whether such significant adverse transboundary impact was likely or not because such an impact is presumed for Appendix I activities. See Decision IV/2 of the Meeting of the Parties to the Espoo Convention, ECE/MP.EIA/10, Annex I, para. 54, available at: <http://live.unece.org/fileadmin/DAM/env/documents/2008/eia/decision.IV.2.e.pdf>. See also the Practical Guidance on Applying the Espoo Convention, as endorsed by decision III/4 (ECE/MP.EIA/6, annex IV) and UNECE, Opinions of the Implementation Committee (2001-2010), Convention on Environmental Impact Assessment in a Transboundary Context, para. 17.
[vi] Point 22 of the Annex I to the Aarhus Convention requires public participation for a change or extensions of activities. It is comparable to point 24 of Annex I and point 13 of Annex II to the EIA Directive. Article 6(10) of the Aarhus Convention requires public participation in the case of a reconsideration or update of the operating conditions of an existing activity.
[vii] For further details on the legal force of the decisions of the Aarhus Convention Compliance Committee, see E. Fasoli & A. McGlone, “The Non-Compliance Mechanism Under the Aarhus Convention as ‘Soft’ Enforcement of International Environmental Law: Not So Soft After All!” 65:1 Netherlands International Law Review (2018).
[viii] In its findings on EIA/IC/CI/4, the Espoo Implementation Committee stated that it was “less relevant whether it is a new activity or a major change to an activity”, thus leaving it open whether a lifetime extension was to be considered an “activity” or a “major change to an activity” in the sense of Article 1(v) Espoo Convention. The Aarhus Convention Compliance Committee concluded that the decision to extend the design lifetime constituted an “update” of the operating conditions of the plant in the sense of Article 6(10) of the Aarhus Convention. It therefore found that it was “not necessary in the present case to consider whether Article 6, paragraph 1 (a), would also apply to the 2013 licence amendment, either in conjunction with paragraph 1 or paragraph 20 of annex I to the Convention.”
[ix] The Court refers to Article 10a of Council Directive 85/337/EEC (the predecessor of Article 11 of the current EIA Directive) in para. 58 of case C-243/15 Slovak Bears II but only as a matter of analogy.
[x] An example for this situation is Rovinari coal-fired power plant, which has been licensed prior to the entry into force of the EIA Directive for Romania. Since then the plant has undergone some partial EIAs for small physical alterations but never for the plant as a whole. Recently, the plant obtained a new integrated permit, which was necessary to approve the continued operation of the plant as the previous permit had been expired, again without EIA.
[xi] See, para 23 of the Opinion and ACCC/C/2014/104, para. 18.
[xii] See paras 79-80 of the Opinion and ACCC/C/2014/104, para. 65.
[xiii] Of course, it may be argued that Member States could construct their systems in a way that all permits are unlimited in time. However, there are many practical, political and legal considerations that would prevent Member States from actually doing this. However, the theoretical possibility should lead to a consideration as to whether there should be a general recognition that an EIA can only be valid for a limited number of years depending on its assumptions and scope of assessment, rather than contradicting EIAs for lifetime extensions.