ClientEarth has taken legal action against the Nord Stream 2 pipeline extension, a project to build and operate a new twin pipeline from Russia through the Baltic Sea to Germany. The pipeline will transport natural gas from the world’s largest reserves in Russia to the internal gas market in the European Union (EU).
The project involves multiple jurisdictions, including countries through which the pipeline will pass, as well as countries which are likely to be affected by the investment.
Although the NS2 pipeline will not pass through Poland, the location of one of ClientEarth’s entities, its effect on the Baltic Sea, marine mammals and wild birds in the Baltic (for which Natura 2000 sites have been designated in Poland and other countries in the Baltic Sea basin) may have a significant adverse impact on the Polish environment.
It is for these reasons that ClientEarth has applied for judicial review against the development permits granted in Finland and Sweden, two of the states through which the pipeline will pass. In doing so, and in exploring the possibility of challenging the pipeline in other jurisdictions, ClientEarth has encountered considerable difficulties related to standing.
In Finland, standing in this case is governed by the Finnish Water Act, according to which the development decision may be appealed by a stakeholder or a registered association or foundation whose purpose is to promote the protection of the environment, human health or nature conservation or the pleasantness of the living environment, and in whose operating area the environmental impacts in question arise. ClientEarth has argued that the construction and operation of the pipeline in Finnish territory may have a serious adverse impact on the Polish environment and that of the entire Baltic Sea. In order to demonstrate the validity of its argument, ClientEarth submitted extensive scientific expert opinions on the impact of the pipeline on Polish Natura 2000 sites and the Baltic Sea ecosystem, including protected marine and bird species. These expert opinions were supplemented by additional opinions which were submitted upon the request of the Finnish court in order to:
- specify in more detail for which reasons ClienEarth considers that the harmful environmental impacts of the operations under the development permit application extend to the Polish marine area; or
- provide other grounds regarding the nature of the impacts the operations under the development permit applications will have on the interests and rights of ClientEarth; or
- demonstrate on which other grounds ClientEarth claims to have the right to appeal in accordance with the Water Act.
As of the date of writing this article, ClientEarth is still awaiting a decision on the admissibility of its appeal in Finland.
ClientEarth has also initiated legal proceedings against the development permit for Nord Stream 2 in Sweden. In order to lay pipelines on the continental shelf outside of Swedish national territory (where part of Nord Stream 2 is to be located), a permit granted by the government is required according to the Swedish Continental Shelf Act. Although there is no possibility to appeal this kind of decision in the normal meaning of the word, the applicable Swedish law does allow the Supreme Administrative Court to examine, under certain circumstances, whether a decision made by the government is in contravention of the rule of law.
An application to the Supreme Administrative Court may be brought by environmental organizations that are entitled to appeal cases in accordance with the Swedish environmental code. Swedish law sets quite a strict formal requirement for NGOs to be able to bring a request for judicial review. Environmental organizations must:
- have as their main task the protection of nature or the environment;
- be a non-profit organization;
- have conducted activities in Sweden for at least three years;
- have at least 100 members, or in other ways show that they have support from the public.
None of the constituent parts of ClientEarth meets the requirements listed in points 3 and 4 above, if they are read literally. However, in its pleadings to the Swedish Supreme Administrative Court, ClientEarth has argued that it should be granted standing, due to the fact that:
- the Government decision involves a determination of ClientEarth’s civil rights under article 6(1) of the European Convention on Human Rights
- the decision is a development decision within the meaning of the Aarhus Convention and ClientEarth fulfils such conditions as mentioned in Swedish law in a manner which permits its participation in the proceedings;
- as concerns the support of the public, ClientEarth has the written support of Greenpeace (which itself fulfils the requirements set forth in Swedish law) and ClientEarth has obtained the signatures of over 2500 members of the public who signed a petition supporting ClientEarth’s actions against Nord Stream 2;
- as concerns the requirement to carry on activities in Sweden for at least 3 years, ClientEarth maintains that this criterion, used as a precondition for standing in a case such as the one against Nord Stream 2, violates binding provisions of EU law and, therefore, cannot be applied by the Swedish Supreme Administrative Court when ruling on standing. Specifically, in ClientEarth’s opinion, the criterion discriminates on the basis of nationality (and, with regard to legal persons, the location of registration and the centre of activities). This violates article 3(9) of the Aarhus Convention.
ClientEarth is currently awaiting rulings on its standing in both Sweden and Finland.
In Germany, ClientEarth was unable to independently challenge the development permits granted to the investor because – German law (the Environmental Standing Act) allows only member-based entities to challenge such permits. None of ClientEarth’s constituent entities (i.e. neither the British charity, nor its Belgian-based branch, nor the Polish foundation) are associations comprising members.