Environmental Impact Assessment

Somewhat confusing from the perspective of public participation might appear the requirements of Art. 6 and Art. 8 of the EIA Directive for the exception under Art. 16 of the Habitats Directive, which is permitted by the development consent. In the interpretation of the general requirement that the communication to the public and the opportunity for the public to express comments and opinions must occur at an early stage, the jurisprudence of the CJEU seems to make a difference between two types of development consent where it is impossible to identify and assess all of the effects on the environment at one stage: a principal decision and an implementing decision. In the judgment in C-463/20 already mentioned, the CJEU added that “…the requirement of early participation of the public in the decision-making process provided for in Article 6 of Directive 2011/92 does not mean that the adoption of a preliminary decision relating to some of the project’s effects on the environment must be preceded by public participation, provided that that participation is effective, a requirement which implies, first, that it takes place before the adoption of the decision to be taken by the competent authority on development consent for that project, secondly, that it enables the public to express its views in a useful and comprehensive manner on all the environmental effects of that project and, third, that the authority competent for granting consent for the project may take full account of that participation“ (para. 79).

The first condition does not seem to pose a problem in practice, as it merely requires the public concerned to participate effectively before the implementing decision is taken. The second condition is more challenging to fulfil, since the individual procedures leading to the adoption of a decision are usually characterised by a specific subject matter which determines the objections that the parties may raise. The second condition, on the other hand, requires the public concerned to be able to comment on the subject matter of the previous procedure, which may require specific procedural arrangements.

Decisions authorising the operation of installations may also require an EIA if they are linked to the implementation of construction modifications, as well illustrated by the judgment in case C-411/17, Inter-Environnement Wallonie et Bond Beter Leefmilieu Vlaanderen, in which the CJEU concluded that the decision to extend the operation of the reactors of the Belgian nuclear power plant Doel 1 and Doel 2 is subject to an EIA and also assessment under the Habitats Directive. It is important to note that the extension of operation in this case involved extensive upgrading and refurbishment work, which included construction work affecting the physical condition of the site. Reference may also be made to the general conclusions of the CJEU judgment in Case C-201/02, Wells, from which it follows that a decision which is necessary to avoid the termination of an existing permit is considered to be a new permit within the meaning of the EIA Directive which requires assessment.

Conversely, a simple extension of operation is not considered a project if it does not involve any works that change the physical condition of the site, as the CJEU held regarding the operation of an airport in Case C-275/09, Brussels Hoofdstedelijk Gewest and Others. In the same judgment, the CJEU concluded that “If it should prove to be the case that, since the entry into force of Directive 85/337, works or physical interventions which are to be regarded as a project within the meaning of the directive were carried out on the airport site without any assessment of their effects on the environment having been carried out at an earlier stage in the consent procedure, the national court would have to take account of the stage at which the operating permit was granted and ensure that the directive was effective by satisfying itself that such an assessment was carried out at the very least at that stage of the procedure” (para. 37).

In principle, the extension of a permit must also be considered as an authorisation of the project within the meaning of the EIA and Habitats Directives if the original permit has expired and ceased to have legal effects after the expiry of the period for carrying out the construction work. The opposite approach is appropriate where the extension with the original permit constitutes the only measure, in particular with regard to the repetition, nature, or conditions of the activities - in such a case, only the application of the prohibition of harm under Art. 6(2) of the Habitats Directive, which only requires an assessment of compatibility with the conservation objectives of protected sites in certain circumstances, would be relevant for projects under the Habitats Directive. In Case C-127/02, Waddenvereniging and Vogelbeschermingsvereniging, the CJEU concluded on the Habitats Directive: “The fact that the activity has been carried on periodically for several years on the site concerned and that a licence has to be obtained for it every year, each new issuance of which requires an assessment both of the possibility of carrying on that activity and of the site where it may be carried on, does not in itself constitute an obstacle to considering it, at the time of each application, as a distinct plan or project within the meaning of the Habitats Directive” (para. 28).

The above-quoted conclusions reflect a well-established interpretative approach according to which repetitive activities should not permanently escape assessment. It is irrelevant that, in the case of construction projects, EU law does not limit the validity of their authorisation, as it does in the case of various operating permits. Suppose a longer period of time elapses between the time when the EIA process took place and the time when the administrative authorities decide in the subsequent proceedings; it may happen that there is a substantial change in circumstances, which will result in the need to supplement the facts established in the EIA process or to reconsider certain conclusions. Furthermore, the opinions of the public concerned may become outdated, and even the public concerned may change considerably over time. The above does not mean, however, that the expiring development consent cannot be taken into account or that the new assessment cannot be based mainly on the original assessment. See Case C-254/19, Friends of the Irish Environment, para. 55: “…the taking into account of such previous assessments when granting a consent extending the construction period for a project, such as the consent at issue in the main proceedings, cannot rule out the risk that it will have significant effects on the protected site unless those assessments contain complete, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the works, and provided that there are no changes in the relevant environmental and scientific data, no changes to the project and no other plans or projects that must be taken into account.”.