Regulatory

Slovakia: Public Participation in Environmental Impact Assessment Procedures – a Blessing and a Curse?

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.

Information

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 711967, 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 1942004, 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.

Outlook

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.

The EIA Act very broadly defines “public” as one or more natural or legal persons, associations, organisations or other groups; in a word: anybody.