10 March 2017

The European Court of Justice raises questions about wind turbine planning    

In two new rulings, the European Court of Justice has construed the scope and legal effect of directive 2001/42 on the assessment of the effect of certain plans and programmes on the environment (the SEA Directive). There is every probability that the rulings will have direct impact on the validity of the Danish executive order on wind turbines and  permissions issued or being issued under the executive order.

The ECJ has established that the Walloon executive order on wind turbines, which in many ways is similar to the Danish executive order, constitutes a plan or a programme under the SEA Directive. The executive order is therefore covered by the requirement for prior environmental assessment and public hearing even though the executive order is in the nature of a general regulation of land use. 

More questions have now been asked as to the impact of the ECJ's construction of the SEA Directive on the Danish executive order, and which influence it may have on previous and future environmental projects in Denmark. The consequence will presumably be that the executive order will be considered invalid until an environmental evaluation under the SEA Directive has been carried out, and that permissions already granted may be invalid.

Like the EIA Directive, the SEA Directive does not contain a specific requirement for a specific protection of the environment and the nature. The rules are of a purely procedural nature and do not in themselves prevent environmentally damaging activities. The actual protection depends on national rules - in Denmark, in particular, the rules of the Act on nature protection and the Act on environmental protection.

C-290/15, PATRICE D'OULTREMONT ETC. 

In this case, the ECJ ruled that the Wallon Region's executive order on wind turbines constitutes a plan or a programme under the SEA Directive. The executive order is therefore covered by the requirement for prior environmental assessment and public hearing even though the executive order is in the nature of a general regulation of land use. 

The case concerned the question on the validity of the Walloon executive order on wind turbine parks with a total effect exceeding 0.5 MW. The executive order contains more detailed rules on wind turbines' shade and noise nuisances, the distance between the wind turbine and other houses, etc. A number of citizens had brought legal action before the Belgian constitutional court claiming that the executive order was invalid referring to the fact that it had been adopted without an environmental assessment and public hearing under the SEA Directive. The Belgian court presented the preliminary question to the ECJ.

"PLANS AND PROGRAMMES" MUST BE CONSTRUED WIDELY

The ECJ took into account that, when restricting the concept "plans and programmes" in article 2(a) of the SEA Directive,  it appears that plans and programmes also include legislative acts adopted in a legislative process. 

The ECJ emphasised that the concept "plans and programmes" must be construed widely. So, the rules are not limited to the planning of a specific geographical area. The ECJ took into account that the Walloon executive order contributed to the definition of the framework of the implementation of wind turbine parks, being among the projects stated in the Schedule II of the EIA Directive. 

It appears from paragraph 49:
    
"the notion of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment [...]. The court further states that, as the Walloon executive order contains various provisions to be observed in the granting of administrative consent to the installation and operation of wind turbines, it comes under the definition of ‘plans and programmes’ within the meaning of the SEA  directive.

THE CONSEQUENCE OF LACK OF ASSESSMENT

In case C-379/15, the ECJ found that, if a legislative act covered by the SEA Directive is adopted without complying with the SEA Directive, not only the legislative act will generally be invalid, but also all rulings made under the legislative act.

This principle may be departed from if a number of requirements are fulfilled: These requirements laid down in C-41/11 are that a new legislative act will not make it possible to prevent damaging effects on the environment, and that the legislative act will only be upheld for a very limited period.

THE IMPLICATIONS FOR THE LEGAL POSITION IN DENMARK

The ECJ's principal views in the ruling are not unfamiliar to Danish law.
For instance, the Environmental Board of Appeal found in MAD 2015.54 that the Act on environmental assessment, implementing the SEA Directive, will also cover the situation where a municipality adopts an administrative framework that regulates land use or environmental requirements regulating projects under the Act on environmental protection. 

The Environmental Board of Appeal has therefore already made an extended construction of the scope of the SEA Directive in line with the principal considerations of C-290/15. At the same time, the Environmental Board of Appeal found that both the administrative framework and the specific order were invalid as a consequence of the lack of environmental assessment.

The question is now which implications the rulings will have for the current Danish rules. Of special interest is Executive Order no. 1736 on noise from wind turbines regulating situations similar to the Walloon executive order. With the ruling in C-290/15, the executive order must undoubtedly be considered invalid together with any decisions/permissions based thereon. However, with the effect that decisions that cannot be complained about or brought before the courts are still in force.

This is especially important in connection with the planning of wind turbine projects where the EIA statement and the environmental report often simply refer to the noise limits in the executive order without making an actual assessment of the "real" emission impact. In several cases, Horten has argued that it is important in relation to the EIA process to create an exact picture of the emission impact, which has now been further supported by the ECJ ruling. 

If the executive order is considered invalid, it is now undoubtedly a requirement to assess the actual environmental impact.

The Danish parliament as well as the Environmental Protection Agency have been made aware of the problems, and we will follow the development very closely. The ECJ ruling further emphasises the fact that wind turbine planning is an area where the municipalities are not only to observe current rules, but must also safeguard own interests to avoid becoming part of conflict-ridden situations, which are allowed as a consequence of those rules.

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