24 October 2019
Case C-411/17 Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen
In a long awaited judgement, the CJEU has clarified that Member States authorities are obliged to conduct assessments under both the Environmental Impact Assessment (EIA) and Habitats Directive when deciding to extend the operating time of polluting infrastructure. The judgement answered a set of questions referred by the Belgian Constitutional Court concerning a 2015 law extending the life-time of nuclear reactors Doel 1 and 2. It addresses a hole in the applicability of both Directives and is set to send ripples through national planning laws, far beyond the nuclear sector.
According to a Belgian law of 2003, Belgium’s seven existing nuclear power plants were supposed to be phased out after 40 years of operation (between 2015-2025), unless security of electricity supply would be threatened. However, a 2013 Belgium law postponed the end date for the “Tihange” reactor and a 2015 law postponed the end-date for the “Doel 1” and “Doel 2” reactors, all by 10 years. Two Belgian NGOs challenged the 2015 law before the Belgian Constitutional Court, which referred to the CJEU.
The central issues addressed by the CJEU were possible infringements of the EIA Directive (point 1) and the Habitats Directive (point 2). Moreover, it had to determine whether the contested Belgian law could be temporarily kept in place if the Directives had indeed been breached, meaning whether the plants could continue to operate until the breach had been remedied (point 3).
The Court first confirmed that the EIA Directive was applicable since the contested decision amounted to a “project” in the sense of Article 1(2)(a) EIA Directive. The Court based its assessment in the present case on the fact that modernization works were planned in the future that were closely linked to the life-time extension decision (paras 67 and 71). It considered the works closely linked even though they were not mentioned in the contested Law itself (para. 67).
The Court further considered that the project required the preparation of an EIA based on point 24 of Annex I EIA Directive. This provision requires that an EIA be prepared for “changes to or extensions of” a project which "itself meets the thresholds, if any, set out in this Annex." The Court held that this provision requires an EIA to be prepared if the environmental effects of the change or extension are comparable to the initial licensing of a given activity (para. 78). It considered this standard to be met in the present case (para. 79).
While leaving the final determination to the national court, the Court also indicated that the EIA should have been carried out before the legislative decision to extend the life-time because it amounted to a decision that allowed the operator to realize the project (paras 84-6). The Court further held that the EIA should have been transboundary in nature because of the close proximity of the plant to the border (para. 81).
As regards a possible exemption from the duty to carry out an EIA (Article 2(4) EIA Directive), the Court decided that there could be no exemption from a transboundary EIA (para. 96) and that there was no indication that the mandatory procedural requirements had been to circumvent the obligation for a domestic EIA (para. 98). It further concluded that there was no exemption based on the fact that the life-time extension was adopted by legislative act (see para. 114 referring to former Article 1(4) EIA Directive; the provision has become inapplicable for projects commenced after 16 May 2017).
The Court further decided that the contested decision also amounted to a project in the sense of Article 6(3) Habitats Directive based on its earlier case-law according to which “EIA-projects” are necessarily “Habitats projects” (para. 123). It found that the life-time extension was not akin to a recurring activity but a distinct project, given that it would not take place under the same conditions as the initial activity, inter alia because of the development of scientific knowledge and applicable safety regulations (para. 128).
The Court further concluded that having regard to the precautionary principle and based on the best available scientific data, it could not be excluded that the project could possibly undermine a protected site’s conservation objectives (para. 134). Accordingly, the impacts both from regular operation of the plant and a possible accident required a prior appropriate assessment of the potential impacts on the site under Article 6(3) Habitats Directive. Arguing by analogy to the EIA context (see above), the Court held that this assessment had to be carried out prior to the adoption of the law extending the life-time (para. 145).
Unless the national court could establish that such an assessment had already taken place (para. 153), there was also no possibility to carry out the life-time extension despite environmental impacts based on reasons of overriding public interest under Article 6(4) (para. 147).
Finally, the Court determined whether the contested law could be kept in place until a replacement EIA and appropriate assessment had been carried out (para. 167). The Court first reiterated its long-standing case law that national authorities and courts are required to take all necessary measures to remedy a failure to carry out an EIA, including by revoking or suspending consent (paras 170-171). However, it also referred to its case law that principally allowed for regularization of developments carried out without EIA (para. 175). The Court further held that such regularization could in principle also be applied for Habitats assessments (para.176).
The Court decided that it is therefore not categorically excluded to keep a national law in place that was adopted in violation of EU law, if certain conditions would be met (paras 178-179). In particular, the national court would need to ascertain whether the continued operation of the plant was necessary to prevent a real and serious risk that Belgium’s energy supply could not be ensured. This assessment would need to also consider if any alternative means could ensure the energy supply, including energy import by way of the internal market.
The judgement addresses a number of previously open legal questions as to the application of the EIA and Habitats Directive and is therefore liable to have a significant impact on the application of both Directives throughout the EU.
“Project” and “significant impact” under the EIA Directive
As regards the EIA Directive, the judgement for the first time clarifies how point 24 of Annex I of the EIA Directive is to be applied to a project where Annex I does not set any thresholds. The interpretation that point 24 requires an EIA where a change or extension has comparable environmental effects to the initial project ensures that this provision does not remain a dead letter. In ascertaining whether risks are “comparable”, the Court also demonstrates a broad approach taking into account the length of the extension and the nature of the necessary works. Given that this provision is further supplemented by point 13 of Annex II, for changes/extensions that otherwise have a significant effect on the environment, the judgement ensures that a broad assessment as to whether the impact of the extension requires EIA is undertaken.
The Court’s judgement is somewhat less clear on the definition of an EIA project. The Court requires works that are closely linked to the life-time extension and devotes some space to assessing the extent of these works. However, as the Court has acknowledged, whether a project will have a significant impact on the environment depends both on the extent of the life-time extension and the extent of the works (see previous paragraph). It would therefore appear that it cannot be justified to exclude EIA for a considerable life-time extension solely because less extensive modernization works are planned. Advocate General Kokott had accordingly recommended the Court to make this point clear and deviate from its earlier case law, meaning to not longer require physical works . The Court instead chose to circumvent the issue by simply referring to the works that were necessary in the present case. It will therefore be on the national courts to apply this test sensibly upholding the effectiveness of the Directive.
Early assessments, independent of permitting decisions
As a further positive point, the judgement ensures that assessments are carried out at a time when they can still impact the decision as to whether or how to proceed with an extension. This is of particular importance in the context of legislative acts and in cases like the present, in which formally the underlying permit is unlimited in time. The judgement therefore makes clear that not only permit extensions are covered but also other decisions that factually extend the operating time of a given facility. While not specifically referred to, the Court thereby upholds the need that EIAs and Habitat assessments are carried out “when all options are open”, as required by article 6(4) Aarhus Convention.
Consequences of a breach of the EIA & Habitats Directives
As regards consequences, the Court did on the one hand well in emphasizing once again that EIAs and Habitats Assessments must be carried out even if the project has already commenced. On the other hand, its acknowledgement that the project may in the meantime continue operation, if this is permissible under national law, is more problematic. The Court’s reference in this context to Inter-Environment Wallonie and France Nature Environnement is not entirely convincing. In these cases the continued application of an act was justified by the object and purpose of the contravened Directive (in this case SEA Directive), namely environmental protection. In the present case, the continued operation of the plant is not in the interest of the purpose of neither EIA nor the Habitats Directive.
Moreover, the judgement fails to distinguish the EIA Directive and Habitats Directive as regards regularization. While the EIA Directive does not prescribe a specific outcome of its assessment, a project falling under article 6(3) of the Habitats Directive may only proceed if it can be demonstrated that there will be no significant effect on the protected site. It is accordingly not appropriate to apply the same test for regularization in Habitats cases. The judgement would perhaps have benefitted from some elaboration on this point.
The Court has nonetheless attempted to impose a stringent requirement for keeping the specific national law in place. Namely, continued operation must be necessary to prevent a real and serious risk that the energy supply cannot be ensured, including by way of energy imports. However, this is a rather case-specific test and it is questionable to what extent it may be transferred to other contexts. Despite the CJEU Judgement being very clear on this point, there are also concerns to what extent the Belgian Constitutional Court will indeed conduct such an assessment, as it may be inclined to defer to the public authorities.
Despite some points where a lack of clarity remains, the judgement is an important milestone in ensuring that the environmental impacts of decisions that factually extend the life-time of polluting infrastructure are assessed. The judgement will accordingly call into question permitting practices of public authorities across the EU and strengthens the voice of the public confronted with major infrastructure. This will concern not only the life-time extension of nuclear reactors but also other projects, such as mines, combustion plants or chemical facilities. Given the prevalence of aging energy and other industrial infrastructure in Europe, this additional scrutiny could substantially improve environmental protection.