New findings : Aarhus Convention applies to life-time extensions of major projects

Aarhus Convention Compliance Committee findings: ACCC/C/2014/104 (Netherlands)

On 4 October 2018, the Committee adopted its findings on a communication related to the timely extension of operation of Borssele nuclear power plant in the Netherlands. The Committee found that the Netherlands had failed to comply with its obligation to provide for early public participation when all options were open because it effectively extended the life-time of the plant by a governmental agreement with the operator, which was not preceded by public participation. The findings clarify the application to decisions that de facto prolong operation of a specific activity without physical alterations to a project.

Background of the communication

Borssele Nuclear Power Plant commenced operation in 1973. At that time, the plant was permitted for an indefinite period and obtained a license with a safety report premised on 40 years of operation (i.e. until 2014). Closure of the plant had been announced first for 2004 and then for 2013 but the operator successfully fought each of these dates by way of a legal challenge and by threatening to sue for compensation. Following some political back-and-forth, the Government concluded in 2006 an agreement with the operator that the power plant would instead close in 2033. This new end of the license was signed into law by a legislative amendment of the Nuclear Energy Act in 2010.

In 2012, the operator applied to have the safety report amended in order to reflect the continued operation beyond 2013. This decision was subject to a public participation period in 2013. However, the Ministry replied to any comments challenging the continued operation of the plant with reference to the earlier political decisions to continue operation until 2033. On 20 March 2013, the Ministry approved the application to amend the safety report to reflect the continued operation of the plant.

Greenpeace Netherlands unsuccessfully appealed this decision to the Dutch Council of State and subsequently filed the present communication to the Compliance Committee. Before the Committee, Greenpeace alleged that the decision to extend the life-time of the plant had not been preceded by public participation as required by article 6 of the Convention.

The findings

The Committee first highlights that the Netherlands admits itself that the design lifetime of the plant had been set to 40 years and was therefore set to expire by 2014. It accordingly considered that a decision that permitted operation of the plant beyond 2014 constituted a reconsideration or update of the permit conditions as provided for by article 6(10) of the Aarhus Convention.

The government needed therefore to comply with the public participation requirements of Article 6 “mutatis mutandis” and “as appropriate”. The Committee then clarifies that the latter two terms did not limit the Article 6 obligations of the Party in the present case. It holds that it would only have been “appropriate” to not apply article 6 fully if the change in the permitted duration would have been minimal or would obviously only have insignificant effects. In the present case, this was ruled out by the fact that the extension was for 20 years.

Having established that Article 6 is therefore applicable, the Committee finds that the public authorities had failed to provide for “early public participation” “when all options are open.” Specifically, it considered that the 2006 Covenant effectively determined 2033 as the new expiration date for the plant and should therefore have been preceded by public participation. The Committee considers that the Covenant created a new enforceable contractual obligation to pay compensation in case of an earlier termination of the activity and effectively set a new end date of operation. Subsequent to that decision, it was only possible for the authorities to refuse an extension of operation based on nuclear safety considerations. Therefore, not all options were longer open when the public participation period on the safety report opened. Since prior to the 2006 Covenant, only selected stakeholders were consulted, the requirements for early public participation had not been fulfilled.

The Committee further includes a brief obiter dictum on the requirements to provide information to facilitate public participation (Article 6(6)) and to take the outcomes of the participation into account (Article 6(8)). Concerning Article 6(6), it holds that having published a relevant background document some years prior, in this case an opinion on the merits of extending operation of the plant, does not amount to making information available. The public authorities should take care to collate all information that could be relevant at the time of the participation period. Regarding Article 6(8), the Committee commends the approach of the Dutch authorities to summarize, group and respond to the comments received (referring to section 6 of the Annex to the contested decision).

Comment

The findings are important in clarifying the extent of obligations of the Aarhus Parties in relation to existing projects. The Committee had previously held that changes to items used in a nuclear power plant amounted to a reconsideration and upgrade (see ACCC/C/2009/41 (Slovakia)). The present findings add that such a reconsideration or update does not need to amount to a physical change to the plant. It is sufficient that the date to terminate the plant has been changed or that the public authorities have given guarantees for operation over a certain period. This is not only relevant for nuclear power plants but for any activities which frequently receive operating extensions, such as mines or combustion plants.

Having established this fundamental point, the Committee also provides guidance as to when public participation should have taken place. Crucially, the 2013 Ministerial decision did not legally extend the permit, which had been granted indefinitely, nor did it decide over the end date of operation, which had been determined by the 2006 Agreement and the 2010 legislative amendment. The Committee’s decision that the 2013 decision was not preceded by public participation was not preceded by “early participation” “when all options are open” therefore translates into: Organizing public participation before the 2013 decision was too late. Since the 2006 Agreement effectively formalized that decision by setting the end date and giving rights to compensation, this was the point of time when participation should have taken place. This is even though that Agreement was a contract rather than a permitting decision.

The findings are therefore noteworthy for considering the decision to extend the life-time in a complete and comprehensive manner, meaning as a tiered decision-making procedure. In a tiered decision-making procedure, different aspects can be decided at different times; this is left to the responsible authorities to decide. Accordingly, there is considerable discretion as to what to discuss at what stage, as demonstrated for instance by the recent Committee findings concerning the UK (ACCC/C/2010/104). However, it must be made sure that the public can participate at the stage when all options are still open. Otherwise public participation periods amount to a simple box-ticking exercises or to events promoting the authority’s decision.

The Committee’s findings are the next contribution on a hot issue currently arising in jurisdiction throughout Europe. Preceding these findings, in February 2014 the Espoo Implementation Committee held that the extension of a lifetime license of a nuclear power plant amounted to a new or update of an activity in the sense of the Espoo Convention, even in absence of any works. The Aarhus Committee shied in the present case away from settling the question whether the life-time extension would effectively equate to a new activity (see para. 67) relying instead on Article 6(10) which is not present in the Espoo Convention, i.e. the ostensibly safer option.

The adoption of the Committee findings were in turn followed by the adoption of the Opinion of Advocate General Kokott on a pending CJEU case concerning the life-time extension of two nuclear reactors in Belgium (Case C-411/17). In a well-reasoned Opinion, AG Kokott proposes a number of possible interpretations of the existing EU legal framework that would permit the EU to comply with these obligations under both the Aarhus and Espoo Conventions. The CJEU will likely soon adopt its final judgement and hopefully use the opportunity to achieve consistency, rather than creating a new contradiction, between EU and international law.