Slovakia: Public Participation in Environmental Impact Assessment Procedures – a Blessing and a Curse?
→ Christina Toth
→ Michal Lučivjanský
The Environmental Impact Assessment (EIA) is an important instrument to balance the diverging interests of two of the decades’ most pressing concerns – the protection of the environment and the growth of the economy. Over the years, public participation has become one of the most effective advocates for the environment.
Stages of public participation
The widespread opinion among stakeholders in Slovakia is that the EIA is a standalone procedure interlinked with the subsequent permitting procedures only by the non-binding final statement of the competent environmental authority. However, a closer look at the procedural provisions of Act No 24⁄2006 Coll on the Environmental Impact Assessment, as amended (EIA Act) shows that, in reality, the EIA procedure and the permitting procedures are closely linked. Above all, the public participation rules establish a strong link between the individual procedural acts.
There are three occasions in the course of the EIA procedure where the public can actively participate by submitting statements: (i) early in the process, after the project developer has submitted its preliminary environmental study, (ii) after the authority has issued the scoping decision and (iii) after the environmental report has been published. Consequently, the project developer could be faced with concerns about the project up to a very late stage of the process.
Three pillars of public participation
International and EU legislation has defined three pillars of public participation, which have also been implemented in the EIA Act: (i) information, (ii) participation in decision-making and (iii) access to justice.
The public has access to information early in the process. The EIA Act very broadly defines “public” as one or more natural or legal persons, associations, organisations or other groups; in a word: anybody. So anybody can submit comments during the three stages of public participation in an EIA procedure. The legal consequence of submitting a comment is that the person, association, organisation or group becomes what the EIA Act calls the “public concerned”.
Participation in decision-making
The public concerned is then invited to take part in the second pillar of public participation – the decision-making process. According to sec 27a EIA Act, the public concerned may actively participate in the preparation and authorisation of the proposed project throughout the EIA procedure up until the authority issues the (non-binding) final statement. As the final statement is not an official decision in the sense of the Administrative Code Coll No 71⁄1967, as amended, there is no remedy against the statement. Due to an infringement procedure initiated by the European Commission in 2010, the Slovak legislature has extended the rights of the public concerned also to the subsequent permitting procedures. Consequently, the public concerned may actively take part as a party to the proceeding in any permitting procedure where a final decision on the authorisation of a project is taken.
Access to justice
Once the competent permitting authority has decided to grant or refuse a permit, the public concerned finally has the right to have access to justice. One of the main tools for the public concerned at this stage is the appeal against the permitting decision. While the EIA final statement itself is not open to remedies, the public concerned may challenge the EIA procedure in the administrative appeal. Any deficiencies occurring during the EIA process (which often takes place years before the permitting process) can thus be raised in the appeal.
Following the right to appeal, the public concerned may also call on the civil court and ask for a review of the administrative decision. The court will review the decision only considering the compliance with the procedural rules, not the substantive matters assessed in the EIA or the subsequent permitting procedure. For instance, in the decision No 1 Sž-o-KS 194⁄2004, the Slovak Supreme Court held in a court review against a land use decision that the preceding EIA procedure had not been conducted in full compliance with the public participation rules. So both the EIA and the land use permitting procedure had to be repeated.
The extensive public participation rights during the EIA and the following permitting procedures have had substantial impact, and actually brought down, various EIA projects in Slovakia in the past. This is an encouraging sign as it shows that a lot of credit is granted to public participation, and poorly prepared projects giving rise to serious environmental concerns will not succeed. However, too-far-reaching public participation rights might lead to high legal uncertainty for project developers. The incentives for investors to plan infrastructure projects or other proposed activities might thus be impaired.
The Ministry of Environment is aware of the challenges for project developers and permitting authorities and is considering revising the current legislation. The result will likely be a trade-off between the environment and economic development. It is to be hoped that the public participation regime will be streamlined in order to increase legal certainty and accelerate the permitting process, without compromising the rights of the public.