New Aarhus draft findings: Life-time extensions of quarries require public participation

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Aarhus Convention Compliance Committee draft findings: ACCC/C/2013/107 (Ireland)

On 3 July 2019, the Committee published its draft findings regarding an Irish communication on a decision to extend a quarry permit by 5 years. The Committee clarified that it was not necessary to use domestic remedies which obviously do not offer a satisfactory remedy before filing a communication. It then confirmed its earlier finding that extending the duration of a permit (i.e. a lifetime extension) requires public participation under the Convention, even when there is no physical alterations or area extensions to the permitted activity. The case is significant not least because of the pending CJEU case concerning the lifetime extension of nuclear power plants Doel 1/2 (Case C-411/17).

Background to the communication

In 1997, a mining operator applied for a permit to operate a quarry in County Meath, about 50km out of Dublin, Ireland. An Environmental Impact Assessment (EIA) with public participation was carried out and the permit granted. The quarry was twice extended, both in time and in size, in 2004 and 2010, the first time without, the second time with EIA and public participation. Local residents filed administrative appeals for each of these extensions without success. In 2013, the permit was again extended, this time only in duration (by 5 years). However, this time no EIA was conducted. In fact, a local resident only came across the new permit after it had already been adopted, when searching the website of the planning authority for an unrelated file. Seeing no possibilities for a national remedy, he submitted this communication to the Committee.

Admissibility and domestic remedies

The first hurdle for the communication was that the communicant had not challenged the permit in Ireland. Ireland argued that the communication should accordingly be inadmissible. However, the communicant (supported by the Irish NGO Environmental Pillar) argued, among other points, that applicable case law established that a national challenge would not have provided a remedy.

The Committee concurred. It noted that based on the Irish case Merriman of November 2017, an application under the specific provision concerned (section 42 of the Planning and Development Act) was not supposed to be notified to the public. Moreover, the case established that a national court could not strike down a permit for an extended duration based on environmental concerns but only assess compliance with the strict statutory criteria set out in the section. The Committee therefore found that it was “indeed obvious that judicial review, the only available domestic remedy” would not have provided an effective and sufficient means of redress. The communication was therefore admissible.

The Committee’s findings

The next question was whether Article 6 of the Convention, which relates to public participation, was actually applicable to the 2013 extension. The Committee first held that the initial permitting decision (of 1998) and the second extension in size and duration (in 2010) had been accompanied by an EIA. The Committee found that Article 6 applied by virtue of para. 20 of Annex I, which applies the Convention to activities that are subject to EIA based on a lower threshold under national law than those set in Annex I to the Convention (in this case, 5 hectares under Irish law as opposed to 25 hectares under the Convention).

The extension in size and duration in 2004 had not been subject to EIA. However, the Committee found that it fell under Article 6 based on para. 22 of Annex I, which applies the Convention to any “change or extension” of an activity, if that change or extension itself meets the thresholds set in the Annex to the Convention. Since para. 20 essentially applies the national standard for EIA (in this case, 5 hectares), the 2004 extension of 7.33 hectares therefore met that standard.

The 2013 permit was not subject to EIA either. Moreover, it was only an extension to the duration of the permit, not of the extraction area, and therefore did not meet the national EIA threshold. However, as the Committee had recently clarified in its findings on communication ACCC/C/2014/104 (Netherlands), an extension of the operating duration of an activity is considered a reconsideration or update of the operating conditions of the activity under Article 6(10) of the Convention. Applying its earlier findings, the Committee found that it was therefore appropriate to conduct a full public participation phase meeting the requirements of Article 6.

The Committee therefore found that Ireland had failed to comply with Article 6(10) of the Convention by not notifying and consulting the public concerned when extending operation of the quarry by 5 years in 2013. Moreover, since section 42 of the Planning and Development Act in fact prevented the authorities from notifying or consulting the public, even if they so wished, the Committee found that this provision in itself failed to comply with the Convention.

Comment

The draft findings clarify a number of elements of the Convention that have not previously been considered. Firstly, as regards admissibility, the Committee considered for the first time in detail national jurisprudence and established that the scope of review applied by the national courts in fact could not have provided an effective remedy. This is a strong and consistent application of the rules of procedures of the Committee, specifically para. 21 of decision I/7, which establish that domestic remedies that “obviously [do] not provide an effective and sufficient means of redress” do not have to be used. This is sensible, as it cannot be expected from an applicant to invest considerable personal and financial resources to use domestic remedies where these will obviously not address the non-compliance.

Secondly, the Committee applied for the first time para. 22 of Annex I to the Convention in conjunction with para. 20 of the Annex. This is an important clarification of the Annex because para. 22 may otherwise have been read as only applying to the thresholds set in Annex I to the Convention (i.e. paras. 1-19). However, as opposed to para. 20, which explicitly includes such a limitation, para. 22 is not so delimited. This is certainly welcome for reasons of consistency and clarity, as otherwise extensions of projects requiring national EIA would have to meet different standards depending on whether they met the Aarhus thresholds.

Thirdly, the draft findings further clarify the de minimis threshhold established by the Committee for life-time extensions. In its findings on communication ACCC/C/2014/104 (Netherlands), the Committee had held that changes in the permitted duration “for a minimal time” and which would obviously have an “insignificant or no effects on the environment” would not require application of Article 6 of the Convention. In its present findings, the Committee clarifies that an extension by 5 years can “by no means” be considered minimal in that sense. This is a useful clarification of the applicable standard.

The draft findings come at a crucial time, in the run-up to the long awaited CJEU judgement in Case C-411/17, which is now scheduled for 29 July 2019. This case concerns the lifetime extension of nuclear reactors Doel 1 and 2, an area where a flurry of life-time extensions without EIA has occupied the Aarhus and Espoo Committees before now reaching the CJEU. However, the present case demonstrates that lifetime extensions are of much broader relevance. In this case, the permit allowed a five-year continued operation of a quarry, another example may be the continued operation of combustion plants. The findings therefore give the Court another good reason to follow the strong Advocate General Opinion on this case and to make clear that the need to prepare EIAs for lifetime extensions applies also beyond the nuclear context.

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Nils Nedel