Analysis from Sebastian Bechtel, ClientEarth
On 25 June 2020, the Court of Justice published a judgement regarding the interpretation of the Strategic Environmental Assessment (SEA) Directive. The Directive requires authorities to prepare an SEA prior to the adoption of certain plans/programmes that set the framework for the permitting of projects that significantly affect the environment, specifically those that require an Environmental Impact Assessment (EIA). The judgement includes some interesting clarifications as to the consequences if no SEA is carried out before the plan/programme is adopted, both for the plan/programme itself and any projects that were permitted based thereon.
Background of the case
On 30 November 2016, local residents challenged a wind farm project in Belgium arguing that it had been permitted based on conditions set in a 2006 regional government order and a ministerial circular that should have been preceded by an SEA. The regional government considered that neither of these instruments amounted to a plan or programme in the sense of the SEA Directive. The national court therefore referred questions to clarify the interpretation of these terms, while also asking the CJEU to reconsider its previous case law. Moreover, it asked what the consequences should be of such a failure to carry out an SEA, in particular for the wind farm project.
The Court firstly refused to reconsider its previous case law, confirming that it is not necessary for the authority to be legally required to adopt the plan/programme in question, as long as it has the power to do so. Therefore, the order and, as far as it legally binds the authorities, the circular, amounted to plans/programmes. Since the order and circular also imposed conditions relating to shadow flicker as well as safety and noise level standards for the permitting of wind farm projects, an SEA should have been carried out before their adoption in 2006.
Most interesting from an access to justice perspective, the CJEU explained the consequences of this breach. It first repeated the long-standing doctrine that (a) Member States must “take all necessary measures “to eliminate the unlawful consequences of a breach of EU law (para 83) and (b) only the CJEU may, in exceptional cases, temporarily suspend the application of EU law (para 84). The consequence of the strict application of this rule is that if there is no SEA, the associated plan/programme and all project consents granted based thereon must be suspended/annulled.
In this specific case, it appeared that construction of the wind farm had not yet commenced and it was therefore clear to the CJEU that the project consent must be annulled (para 88).
Even more importantly, the CJEU held that the consent should equally be annulled if construction had already started (para 89). The Court recalled in this regard the limited exceptions based on which national judges may maintain some effects of the plans/programmes and, therefore, also permits granted based on that plan/programme, until the missing SEA is carried out:
The first possible exception applies where annulling the plan/programme would create a legal vacuum which harms the environment. This exception was established in relation to a nitrate action programme, i.e. a programme that is intended to progressively improve the environment by reducing nitrate pollution (Case C-41/11). In that case, the Court held that it would be contradictory to annul that programme awaiting the SEA, given that this would be more detrimental to the environment, the opposite of what the SEA Directive intends to achieve. In the present case, the Court found that, even though wind farm development supports the increased production of renewable energy and thus protects the environment, annulment of consents for a number of wind turbines does not suffice to fulfil the requirements of the first exception.
Secondly, in Case C-411/17 concerning nuclear reactors Doel 1 and 2 (analysed here) the Court established that it would be permissible to continue operation of an energy plant (in this case two nuclear reactors) where this is necessary for the security of energy supply of the Member State as a whole, while counting the possibility of energy import. In the present case, the Court held that the cessation of activity of a limited number of wind turbines would likely not have significant implications for the supply of electricity for the whole of the Member State concerned.
The case is an important reaffirmation of the rule that project consents are illegal if they are adopted in violation of EU law, be it based on a lack of EIA or SEA. While in recent judgements the CJEU established certain exceptions, the present judgement explains that these are to be interpreted narrowly. This is an important reminder that practices intended to circumvent EIA and SEA requirements and establish “facts on the ground” by simply starting constructions are a clear violation of EU law. As the Court has recently held in a different case, such an approach can also result in penalty payments by the CJEU.
In particular, the case should prevent an exaggerated use of the “security of energy supply exception” (second point above). In the mentioned Doel 1/2 case, the Belgian Constitutional Court held that considerations of security of energy supply justified continued operation of the reactors until a new EIA was carried out (to be done before 2023). Whether or not this judgement was justified, the clarifications in the present judgement make clear that this may not become the norm for energy developments. Rather, the assumption should always be that the plant concerned ceases operation. It may then only continue to operate if the EIA and, where relevant an SEA, has been carried out and demonstrated that operation under these conditions is indeed the optimal solution for the environment and affected public.