Revolutionary changes in environmental permit proceedings
Revolutionary changes in proceedings to award environmental permits:
- new rules for identifying parties to such proceedings,
- extending the validity period of environmental permits without needing to phase project execution,
- effecting service by way of announcement for real properties with an unsettled legal status,
these are merely some of the proposals put forward by the authors of the bill.
On 26 March 2019, a bill amending the Act on Providing Information on the Environment and Environmental Protection, Public Participation in Environmental Protection and Environmental Impact Assessments (EIA Act) and certain other acts was published on the Government Legislation Centre’s webpage. The main purpose of the planned changes is to streamline investments and procedures for acquiring environmental permits.
The proposed changes concern three key issues:
- strategic environmental impact assessments,
- cross-border environmental impact assessments; and
- environmental permit procedures
Changes to the environmental permit procedures have the most critical impact on an investment’s progress. The changes apply to all investments classified as projects which are, by definition, regarded as having a significant impact on the environment or as projects that could potentially have a significant impact on the environment.
The proposed changes include, in particular:
· New criteria for determining the status of parties to proceedings – 100m distance from the investment’s location. The proposed amendments state that not all owners of plots adjacent to an investment’s location will be entitled to obtain the status of a party to the environmental permit proceedings. Such status will only be granted to the owners of plots located at a distance of 100m from the boundaries of the investment site or of plots where environmental quality standards would be infringed as a result of the project’s implementation or of plots located within the project’s range of significant impact, which may restrict the real property’s development in accordance with its currently envisaged usage. This solution was proposed primarily due to investments implemented on large real properties, where the actual area of the investment’s impact does not exceed the boundaries of the plot owned by the investor.
· Service by way of announcement where there are more than 10 parties. The bill states that, where there are more than 10 parties to environmental permit proceedings or other proceedings concerning such a permit (e.g. appeal proceedings) Article 49 of the Code of Administrative Procedure (CAP) applies, i.e. the authority will effect service of all pleadings and notifications by way of an announcement. Currently, Article 49 of the CAP applies if there are more than 20 parties to such proceedings. As such, the proposed provision will operate as a lex specialis in relation to Article 49 of the CAP.
· Service by way of announcement if the real property has an unsettled legal status. In the event that the real property has an unsettled legal status, the authority will serve the parties with notifications of the environmental permit proceedings by way of an announcement. In line with the proposed changes, unsettled legal status should be construed as being a situation where the current owner or holder of perpetual usufruct has died and their heirs have not proved a right to inherit, or where it is not possible to identify the person(s) having an in rem right over such property, given the absence of a land and mortgage register, a collection of documents or other documents concerning the property.
· Presumed validity of land register excerpts – a party’s death does not result in the suspension of the proceedings. The proposed amendment deems service to have taken place if the data in the land register or documents provided by the party is no longer valid. This solution seeks to avoid the suspension of environmental permit proceedings if one of the parties to the proceedings dies or if data is no longer valid at the time the proceedings are initiated. The procedure for determining the deceased party’s relevant heirs is usually quite time-consuming, and the authority conducting the proceedings has no standing to apply for a judicial declaration of succession and an official determination of the deceased party’s relevant heirs. Accordingly, in many cases involving a significant number of parties, the proceedings have been unreasonably protracted.
· Obligation to notify the authority of changes to the real property’s owner and reopening proceedings. The proposed changes that entities which have transferred between themselves an in rem right over the real property must notify the authority conducting the environmental permit proceedings of this fact. Failing this, the real property purchaser will not be entitled to apply to reopen the proceedings on the grounds that it did not participate in the proceedings.
· Appendices to environmental permit applications. The proposed provisions assume that an investor will be able to append attachments to an environmental permit application. These may include record maps, excerpts and extracts from the land register or other documents issued by the authority maintaining the land and buildings register, including in the form of electronic documents. The changes also require that a map be scaled so as to ensure the legibility of the presented data outlining the projected area on which the project is to be carried out, and outlining the projected area which the project will impact upon, be drawn up on the basis of a cadastral map. Additionally, where there are more than 10 parties to the proceedings, the investor will not be required to submit an excerpt from the land register, nor any other document issued by the authority maintaining the land and buildings register, at any stage of the proceedings. The current legislation states that, where Article 49 of the CAP applies, the investor is not required to attach such documents until at a later stage of the proceedings, i.e. when submitting an environmental report.
· Changes to extend of the validity of environmental permits. Currently, the validity period of an environmental permit (i.e. which can be attached to the types of decisions listed in Article 72(1) of the EIA Act), is six years from the date on which the permit became final. Where an investor demonstrates that an investment is proceedings in phases and the conditions for the investment’s implementation (as specified in the environmental permit) remain valid, the authority may extend the permit’s validity period to 10 years. Given concerns regarding the interpretation of the term “phases”, the authors of the bill decided to abandon this criterion. Additionally, the proposed change will make it impossible to submit applications to extend the permit’s validity period within five years of it becoming final, which will guarantee the validity of environmental conditions for the investment’s implementation.
· Revoking a decision that it is unnecessary to carry out an environmental impact assessment in connection with projects that could have a significant impact on the environment. Once the proposed change takes effect, if it is ascertained that it is unnecessary to carry out an environmental impact assessment, the authority conducting the proceedings will immediately issue an environmental permit.
· Changing the jurisdiction of the authorities that issue environmental permits. The bill assumes that the power to issue environmental permits for projects in respect of which the executive body is the authority competent to issue an environmental permit, shall be delegated to mayors (of a commune, municipality or town/city). Such permits are currently issued by Regional Directors for Environmental Protection (RDEP). In order to ensure the proper separation of functions and effective control of any conflict of interest where the authority competent to issue the permit is also an investor, the authors of the bill put into place an additional safeguard mechanism by providing the RDEP, as an independent authority, with a decision regarding the obligation to conduct an environmental impact assessment, which is an instrument that most significantly affects the determination of the conditions for the project’s implementation. Additionally, it is expected that the right to take formal steps if irregularities are identified in the environmental permit procedure shall be transferred from the General Director for Environmental Protection to the RDEP.
· Varying investments. The bill assumes that the authority will be authorised to require an investor to implement a variant of the investment other than that proposed by the investor, only if this variant fails to comply with the requirements specified in the EIA Act, e.g. if it does not comply with the local zoning plan.
· Suspending proceedings without the parties’ consent. The proposed change would introduce another lex specialis provision in relation to the CAP’s provisions. This change would allow the proceedings to be suspended at the investor’s request, despite the other parties to the proceedings opposing this. The only ground for suspending such proceedings is the existence of a threat to the public interest.
The bill also proposes the amendment of other legal instruments, for example the Construction Act, by expanding the list of activities that would be deemed to constitute a change to the intended use of a construction facility. In line with the proposed changes, the list will also include performing, as part of a construction project, activities classified as projects likely to have a significant impact on the environment. In the event that the intended use of the facility is so changed, it will be necessary to attain an environmental permit.
The bill states that proceedings which have been initiated, but not yet concluded, before the entry into force of the Act will be conducted in accordance with the previously applicable provisions, aside from those provisions that do not regulate the rights of parties to the proceedings but, rather, merely streamline the environmental permit procedure.
The bill has been submitted for public consultations that are expected to be completed in the second half of April. We will monitor the bill’s progress through the legislative procedure and keep you informed in our forthcoming updates.
