Access to justice in accelerated permitting: speed over nature & people?

Legal analysis by Ilze Tralmaka, Law and Policy Advisor, Environmental Democracy

On 19 December 2022, the Council of the European Union adopted a Regulation laying down a framework to accelerate the deployment of renewable energy (Emergency Regulation). As an emergency measure, it was adopted to minimize threats to the security of the EU’s gas supplies caused by Russia’s invasion of Ukraine in February 2022 and boost the green energy transition. Since, the adoption of the Emergency Regulation permit acceleration has been introduced into the Renewable Energy Directive (RED), and in the current draft legislation to speed up the EU’s critical raw material independence and boost the net-zero industry.

Streamlined permitting processes intend to eliminate the bottlenecks of the permitting process – unnecessary administrative burdens and lengthy, complex procedures. In reality however, fast-tracking the process risks cutting key safeguards for protecting the environment and people's rights. For example, the revised RED establishes so-called “renewables acceleration areas,” which will be designated following a mapping process and a strategic environmental impact assessment (SEA) (Article 15). They will either fully or partially replace an environmental impact assessment (EIA) for individual renewable energy projects. Where no EIA is carried out, potential environmental damage may remain unaddressed and the public’s right to express their opinion and defend their rights may be limited.

Access to justice under threat

Access to justice is guaranteed through European Union (EU) laws that may not be applicable in accelerated permitting processes. For example, access to justice usually guaranteed under the EIA Directive may not be applied as EIA may not be required for individual projects. That does not mean that certain decisions in the permitting process cannot be challenged but  effective access to justice will require familiarity of local authorities, judges, and the public (including environmental NGOs) with the Aarhus Convention, EU environmental law, and related case law. Without proper guidance, the public’s right to access justice in key stages of the permitting process could be overlooked.

Access to justice will also depend on transparency and access to information about the permitting process. It is unclear whether crucial decisions, such as the “opinion” of the competent authority on the necessity or the scope and level of detail of an EIA (Art. 16b(2), RED) will be proactively made available to the public or whether any information on the possible timeframe for adoption of this decision will be communicated. Therefore, transparency in permit acceleration processes will play a crucial role in guaranteeing access to justice.

Urgency in permitting disputes

Member States are strongly encouraged to apply urgency in permitting disputes. While the time necessary for dispute resolution is generally not counted in the overall permitting periods (Article 16(8)(c) Renewable Energy Directive (RED), Article 11(9) of the draft Critical Raw Materials Act (CRMA)). Member States are required to ensure that all dispute resolution procedures, litigation, appeals, and judicial remedies related to the permit-granting process “be treated as urgent” (Article 11(9) CRMA) or “subject to most expeditious administrative and judicial procedure” (Article 16(6) RED). Member States are not obliged to create new procedural rules, but where urgent procedures can be found under national law they should be employed.

In practice, urgent dispute resolution procedures vary widely across Member States, making it difficult to anticipate what impact they will have. Urgency may mean significantly reduced time limits for all major procedural steps of judicial proceedings, including the time limits for application to the court, preparatory stages, and reviews on the merits. It may also mean that judicial review is reduced in scope. The parties could also have limited time to collect evidence and elaborate their arguments and judges may not be afforded adequate time to fully assess permitting disputes on merits, including the time necessary to determine compliance with EU environmental law.

Several legal presumptions included in the above-mentioned legislative acts, such as “highest national importance” (Art. 10(4), CRMA; Art 12(1), NZIA), “serving public health and safety” (Art. 16f, RED; Art. 10(2), CRMA) or having an “overriding public interest” (Art. 16f, RED; Art. 10(2), CRMA), could further reduce the scope of judicial review. Against this backdrop of strong legal presumptions in favour of granting a permit to an individual project, especially where the project enjoys the status of “strategic” with the supranational backing of the European Commission, local judges may have little space to evaluate and give appropriate weight to other public interests such as nature protection or fundamental rights of individuals and local communities.

Alternative dispute resolution

The use of alternative dispute resolution (ADR) mechanisms is encouraged in all accelerated permitting procedures. Article 16 of the revised RED requires Member States to “ensure that applicants and the general public have easy access to simple procedures for the settlement of disputes concerning the permit-granting procedure and the issuance of permits to build and operate renewable energy plants, including, where applicable, alternative dispute resolution mechanisms.” Article 10(5) of the draft CRMA names mediation or arbitration panels among ADR mechanisms that could be used.  While the revised RED does not clearly distinguish who should have access to alternative dispute resolution mechanisms, the CRMA and NZIA reserve the availability of ADR to the applicants.

ADR may be a very convenient and time-saving solution for project promotors but may also seriously hinder the involvement of civil society and any other interested actors in the process. A key reason for that is confidentiality. In ADR, confidentiality is a rule and opening ADR to any other third party is seen as an exception subject to different rules and requirements. To ensure public support for the projects under consideration transparency, public participation and the public’s ability to scrutinise judicial processes around permitting is essential.

Another key problem is the interpretation and application of EU law in ADR mechanisms. Using ADR in permitting procedures would mean that arbitral panels, mediators, or other ad hoc mechanisms would likely be tasked with interpreting and applying EU environmental law. While national courts have the option or even an obligation to request a preliminary reference ruling from the Court of Justice of the European Union (CJEU), ad hoc ADR mechanisms have no such right or obligation. The CJEU has been clear that an “ad-hoc arbitral tribunal, such as that referred to in Article 26(6) [Energy Charter Treaty], does not constitute a component of the judicial system of a Member State” (C-741/19 Republic of Moldova v. Komstroy, paras.51-52). The exceptional jurisdictional nature of ad-hoc arbitral tribunals means that such tribunals cannot be classified as courts or tribunals of a Member State within the meaning of Article 267 TFEU, and are therefore not entitled to make a reference to the CJEU for a preliminary ruling. Thus, ADR cannot ensure that disputes involving EU law are settled in a manner that ensures the full effect of EU law, including environmental law.

Conclusion

How effectively access to justice will be guaranteed despite all of the above remains to be seen. While the objectives of boosting energy transition and eliminating obstacles to guarantee faster permitting are very important, compliance with the safeguards for nature and people must not be sacrificed in the name of speed.