biogas plant

Ex-post environmental impact assessments can be compatible with EU law

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Joined Cases C-196/16 and C-197/16 Comune di Corridonia and Others; Aldo Alessandrini and Others v Provincia di Macerata and Others, Judgment of 26 July 2017, ECLI:EU:C:2017:589

The Court of Justice (ECJ) has held that an environmental impact assessment (EIA) carried out following the realisation of the project in question is compatible with EU law in the situation where the authorities and the constructors acted in good faith. Ludwig Kramer comments that the judgment is reasonable in the circumstances, although it opens the door to breaches of the EIA Directive, especially where there is collusion between permitting authorities and construction companies.

The Court was asked whether it is legally possible to make an environmental impact assessment (EIA) for a project which has already been realised. The EIA Directive (Directive 2011/92) requires, for projects which come under its field of application, than an EIA be made before the permit for the construction and/or operation is granted. The ECJ held that exceptionally, such an ex-post EIA was compatible with EU law.

The case concerned the construction of biogas plants in two Italian municipalities. The competent Italian authorities granted a permit for these plants because regional legislation provided that an environmental impact assessment was not necessary. The plants were built. However, later, the regional legislation was declared void by the Italian constitutional court because it was in contradiction with EU Directive 85/337 – later 2011/92 – on environmental impact assessments. The competent Italian authorities then requested an EIA to be made for the plants. The two municipalities considered this procedure incompatible with EU law.

The ECJ clarified that according to Directive 85/337 (2011/92), an EIA for projects which came under the application of that Directive had to be made before development consent – i.e. the permit – was granted. However, it found that the Directive was silent on the question what happened when a permit was granted without an EIA. The ECJ considered that in such cases, an EIA could be required ex-post, i.e. after the realization of the project. This ex-post EIA should not give the possibility to operators (or authorities) to circumvent the requirement of a prior EIA. The ECJ explicitly referred to its judgment in case C-215/06 (Commission v. Ireland) where the national legislation had allowed such a circumvention of the requirement of a prior EIA more or less as a rule and not as an exception, but which the ECJ had not accepted.

In the present case, both the authorities and the constructors of the plant had relied on the regional legislation which was later declared void. They had thus acted in good faith and the ECJ did not see any reason to declare the ex-post EIA in the present case incompatible with EU law. It added, however, that not only the future impacts of the projects had to be taken into consideration by the ex-post EIA, but also the impacts since the completion of the construction. It did not discuss the environmental impact of the construction phase itself. Such impacts may be very considerable – in particular with infrastructure projects – but they are passed anyway, so that they are no longer possible to minimise.

The judgment appears, at the end of the day, reasonable. It bears, though, the huge risk of opening the gate to the realization of projects without an EIA which is then made at a stage when the project is already completed. The collusion between constructors and in particular local permitting authorities might increase the risk of such a procedure – which is high, when the competent authority has a discretion as to whether to require an EIA or not, as is the case for projects that come under annex II to Directive2011/92.

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