by Sophie Perez Fernandes, Junior Editor

▪

The risk society is a non-knowledge society. Ulrich Beck has long demonstrated that the explosion of the nuclear reactor at Chernobyl (26 April 1986) coincided with an «explosion of non-knowledge» in an entanglement that requires a rethinking of the conceptual and institutional constants of the modern world, such as the concepts of rights and human dignity, as well as those of sovereignty and state government[i].

On January 16, the Portuguese government filed a complaint to the European Commission against Spain concerning the construction of a nuclear waste storage facility at the Almaraz nuclear power plant (the news can be found here). Operating since the early 1980s, the Almaraz nuclear power plant is located along the Tagus River about 100 kilometres from Portugal, bordering the districts of Castelo Branco and Portalegre. The construction of the storage facility is intended to extend the operation of the Almaraz nuclear power plant, which has been presenting several problems, especially security problems. Portugal claims that there has been a violation of the EIA Directive, in addition to requesting the suspension of the construction of the Almaraz nuclear waste storage facility.

The EIA Directive – Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 – applies to the assessment of environmental effects of certain public and private projects which are likely to have significant effects on the environment. It updates 4 earlier directives (Directives 85/337/EEC, 97/11/EC, 2003/35/EC and 2009/31/EC) and applies from 17 February 2012. Furthermore, Directive 2011/92 has been amended in 2014 by the Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014. The revised EIA Directive entered into force on 15 May 2014 and Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with it by 16 May 2017. It should also be mentioned that safety of nuclear installations is also regulated by EU law, namely by the Council Directive 2009/71/Euratom of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations (transposition deadline expired since 22 July 2011), amended by the Council Directive 2014/87/Euratom of 8 July 2014 (transposition deadline expires the 15 August 2017).

As stated above, Portugal claims that there has been a violation of the EIA Directive. The EIA procedure laid down in this directive can be summarized as follows: i) the developer (the applicant for authorisation for a private or public project which falls within the scope of application of the EIA Directive) may request the competent authority to say what should be covered by the EIA information to be provided (scoping stage); ii) the developer must provide information on the environmental impact (EIA report); iii) the environmental authorities and the public (and, as will be explained below, the eventually affected Member States) must be informed and consulted; iv) the competent authority decides, taken into consideration the results of consultations. The public is then informed of the decision taken and can challenge it before the courts.

With regard to the Almaraz debate, it is claimed to have been infringed Article 7 of the EIA Directive which provides for inter-State cooperation when a project is likely to have significant effects on the environment in another Member State (transboundary effects).

According to the said provision, whether a Member State is aware that a project is likely to have significant effects on the environment in another Member State, or a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible (and no later than when informing its own public) a description of the project, together with any available information on its possible transboundary impact, as well as information on the nature of the decision which may be taken. The Member State in whose territory the project is intended to be carried out shall give the other Member State a reasonable time to indicate whether it wishes to participate in the environmental decision-making procedures. That being the case, the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send to the affected Member State the information required to be made available to its own public under the EIA Directive.

The Member States concerned shall enter into consultations regarding, inter alia, the potential transboundary effects of the project and the measures envisaged to reduce or eliminate such effects and shall agree on a reasonable time-frame for the duration of the consultation period. Under the revised EIA Directive, such consultations may be conducted through an appropriate joint body. The detailed arrangements for implementing such cooperation mechanism, including the establishment of time-frames for consultations, shall be determined by the Member States concerned and shall be such as to enable the public concerned in the territory of the affected Member State to participate effectively in the environmental decision-making procedures.

Indeed, the cooperation mechanism provided for in Article 7 of the EIA Directive is not only designed for inter-State relations – it also aims to promote public participation. Thus, each of the Member States concerned shall also arrange for the relevant information to be made available, within a reasonable time, to the authorities likely to be concerned by the project by reason of their specific environmental responsibilities, as well as to the public in the territory of the affected Member State. Significantly, before the approval of the project is granted, those authorities and the public shall be given an opportunity to forward their opinion within a reasonable time on the information thus supplied.

Public participation is a cornerstone of environmental regulation. The EU has signed the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) on 25 June 1998 and ratified it on 17 February 2005. Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being. The Aarhus Convention provides for, in particular, for the right of access to environmental information, the right to public participation in environmental decision-making procedures, and the right of access to justice in environmental matters.

Directive 2003/35 sought to align the provisions of the EIA Directive on public participation with the Aarhus Convention. Accordingly, and specifically with regard to the case under analysis, the EIA Directive further compels Member States to ensure i) that the results of consultations and the information gathered pursuant to Article 7 shall be duly taken into account in the development consent procedure (Article 8); and ii) that the decision to grant or refuse development consent, as well as the main reasons and considerations on which it is based, shall be made available to the public and the authorities likely to be concerned by the project by reason of their specific environmental responsibilities, as well as to any Member State consulted pursuant to Article 7 (Article 9). This includes, as is specified in the revised EIA Directive, the summary of the results of the consultations and the information gathered pursuant to Article 7 and how those results have been incorporated or otherwise addressed, in particular the comments received from the affected Member State. Also, iii) the consulted Member States shall ensure that this information is made available in an appropriate manner to the public concerned in their own territory. Under Article 11 of the EIA Directive, iv) Member States shall furthermore ensure that, in accordance with the relevant national legal system, members of the public 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.

The importance of compliance with formalities to the individual’s legal rights should not be overlooked as, recalling the words of Rudolf von Jhering, “the form is the sworn enemy of arbitrariness and the twin sister of freedom”. So, public participation in environmental matters is not merely a formal matter, but a substantive one. It is not only a question of allowing access to relevant environmental information when a project ongoing approval is likely to have significant effects on the environment and, in particular, when it is likely to have transboundary effects – it is also a question of allowing the public to comment on those projects in a way that ought to be taken into due account in the decision-making procedures. In other words, public participation in environmental matters is an exercise of freedom and is particularly crucial as it manifests itself, must be conceived and ought to take place in a field that knows no borders.

Cases such as Almaraz demonstrate how the participatory nature of decision-making in environmental matters enhance, or should at least promote, the exercise of environmental citizenship on a broad scale, through procedures in which there should be no excluded because, in a domain typically borderless as the environment, such decisions impact all around. Thus, whether they are taking decisions or being affected by decisions taken by other States, state governments must rely on the (desirably active) involvement of citizens, whether or not residing in their territories. The monitoring of non-governmental environmental organizations and international and regional bodies has played an important role in promoting and framing cooperation between States and public participation in environmental matters. Almaraz is thus one of several examples. The follow-up given to the complaint by the European Commission will therefore be decisive in meeting the aspirations of environmental citizenship.

[i] Ulrich Beck, Sociedade de risco mundial: em busca da segurança perdida (Lisboa: Edições 70, 2015), p. 217 ss.

Picture credits: T3 Arrocampo-Almaraz (…)  by Stéphane M. Gruesso.