Introduction
- Earlier this year, the Aarhus Convention Compliance Committee (“ACCC”) set out its findings and recommendations in 2020/183 (Spain). In that case, the operating life of the Almaraz Nuclear Power Plant (“NPP”) had been extended by Ministerial order on 23 July 2020 (the “Order”) to 2027 (Reactor I) and 2028 (Reactor II). Pessoas – Animais – Natureza (“PAN”), a Portuguese political party, alleged non-compliance with Article 6, as the public in Portugal and Spain had not been given Article 6 compliant opportunities to participate ahead of the Order being made (§1). The ACCC agreed (§70).
The facts
- The Almaraz NPP is located less than 100km from Spain’s border with Portugal. It has two reactors, which came online in 1981 (Reactor I) and 1983 (Reactor II). The NPP had a lifecycle of 30 years, ending in 2010. A Ministerial Order in 2010 extended that life to 2020. An application to further extend the life of the NPP was submitted to Spain’s Ministry in March 2019. It was subject to a report by the Nuclear Safety Council (6 May 2020) which was sent to the Ministry for Ecological Transition and Demographic Challenges. The report was favourable to the application, subject to the imposition of certain conditions. In May, June and July 2020 the Portuguese Minister of the Environment and Climate Action stated in the Portuguese parliament that the Portuguese authorities had sent a letter to the Spanish authorities requesting an EIA of the proposed extension, including its transboundary effects. The Spanish authorities approved the extension via the Order in July 2020. There had been no opportunities for public participation in either Spain or Portugal. §§10-17.
The argument - PAN argued that there had been a major change to an activity listed in Annex 1 of the Convention (Nuclear Power Stations) which required an EIA under Article 6. See the decision in 2014/104 Netherlands. (§§21-23).
- Spain argued that the mere extension of an NPP’s activity did not require an EIA, and was not a “project” for the purposes of the EIA Directive. As a matter of domestic law the Spanish High Court had held that no provision required an EIA in respect of operating permits or their renewal. Moreover, the Spanish System differed from the system in many other EU Member states as it granted permit renewals, coinciding with Periodic Safety Reviews (“PSR”), every 10 years. Other European States granted permits for much longer periods, subject to PSRs every 10 years. As those other member states did not require an EIA for simply undertaking PSRs, it would lead to unequal treatment if the Spanish authorities had to undertake one. At EU level, in C-275/09 Brussels Hoofdstedelijk Gewest v Vlaamse Gewest (ECLI:EU:C:2011:154) the CJEU had held that the EIA directive did not require an EIA for the renewal of an existing permit to operate an airport in the absence of any works or interventions involving alterations to the physical aspect of the site. As neither domestic nor EU law require an EIA, the participation of the public from other countries cannot realistically be required. Nevertheless the Portuguese administration was kept informed. (§§21-32).
- There were further ancillary arguments: PAN argued the extension to the NPP’s operating life was increasing the risk of NPP accidents, and additional environmental impacts from the increase use of Uranium; Spain argued that there were no undue risks given the involvement of the Nuclear Safety Council and others (e.g. past inspections by the IAEA). (§§29-31).
The Decision - The ACCC considered there to be a breach of Article 6(10). That provides “when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.” The permitted duration of an activity is an operating condition (ACCC/C/2016/143 Czech Republic §100). Accordingly, the Order was a was an update to the NPP’s operating conditions and should have been subject to public participation pursuant to Articles 6(2)-(9).
- These provisions are to apply with any necessary changes and “where appropriate” (§§39-48).On the issue of “where appropriate”, the ACCC has previously considered that it is “appropriate” to apply the requirements of Articles 6(2)-(9) on updates to operating conditions, unless those updates are “not capable of significantly changing the basic parameters of the activity and will not address significant environmental aspects of the activity” (ACCC/C/2014/121 (EU) §70) or are for a “minimal time and obviously would have insignificant or no effects on the environment” (ACCC/C/2014/104 (Netherlands) §71). On the facts of this case:
a. As an extension for more than two years of a chlorine and derivatives production facility is not “for a minimal time” (ACCC/C/2014/122 (Spain) §96), a 7-8 year extension for a nuclear power plan certainly is not;
b. It was not conceivable that prolonging the operation of an NPP would have “no or insignificant environmental effects” given (i) the continuation of environmental impacts (including the generation of waste) and (ii) the possibility of accidents occurring.
Accordingly, the requirements of Articles 6(2)-(9) applied. (§§49-55).
- The ACCC also dismissed the argument that there had been no breach of EU law, as Spain’s obligation under the Convention is freestanding (§58).
- On the facts of this case, as there had been no opportunity at all for public participation, whether in Spain or Portugal, there had been no compliance (§§56-60). There could be no dispute that “the public concerned” included those in Portugal (§§61-68).
Key takeaway - This is an unsurprising outcome, given previous Committee Decisions (endorsed by the Meetings of the Parties) on the scope and ambit of Article 6(10) of the Convention. It is a helpful reminder of how minimal the scope is for avoiding EIA when extending the life of the facilities subject to Article 6.
This blog post was written by Nick Grant.
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Authors of the Aarhus blogs
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.
– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.
– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).
– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.
