NGO Ecoclub won in the court against the Department of Ecology and Natural Resources of the Rivne Regional State Administration (hereinafter – the Department). At a court hearing on July 1, the positive conclusion of the Kronospan`s environmental impact assessment report, which is being built near Rivne, was canceled.
Despite the mentioned amount of hazardous emissions in Kronospan`s EIA report, the Department issued a positive conclusion.
Will the plant work after the court decision and what does this victory mean for the environmental movement in Ukraine?
PREHISTORY
In 2020, before the start of the plant`s construction, Ecoclub analyzed Kronosan`s environmental impact assessment report. We saw that as a result of the plant’s activity, the concentration of formaldehyde in the air will be exceeded nine times.
Despite the critical remarks from activists and protests in the community, the Department issued a positive conclusion, which, in fact, recognized the safety of the enterprise.
We believe that the Department`s conclusion does not allow us to be sure on the safety of the planned enterprise`s activity. Therefore, a positive conclusion on the Kronospan`s EIA report violates the norms of the Law of Ukraine “On Assessment of the Impact on the Environment”.
The court proceedings lasted more than two years: at first, the local courts made an illegal decision to return Ecoclub`s lawsuit. Subsequently, the duration of the proceedings was affected by the full-scale war in Ukraine and Kronospan`s participation in the process, which is the third party in this case.
WHAT’S WRONG WITH KRONOSPAN: THE COURT’S DECISION
On July 1, the Rivne Regional Administrative Court satisfied the Ecoclub’s lawsuit. The Court emphasized that the conclusion on the plant`s safety, which is being built in Horodok, was issued without a thorough analysis and due consideration of public comments, so the document needs to be revised.
The decision states that:
– The public was not adequately and timely informed about the time and place of public hearings held on December 23, 2019.
The first public hearing was held on December 20. The mentions about the second public hearings, which took place on December 23, was not published on the Unified Register for Environmental Impact Assessment website, but was announced in the mass media on December 19. That is, public hearings took place the next working day. Thus, the public was not informed in a timely manner about the holding of additional hearings.
– The public was deprived of the opportunity to get acquainted with additional materials to the report, which was published on the last day of the public hearings.
As is known from the website of the Unified Register of Environmental Impact Assessment, such information was published only on January 15, 2020. The public had one day to review and write their recommendations.
– The report`s developers did not calculate all the summation groups of the dispersion of pollutants in the atmospheric air (when certain pollutants in the air are combined, their impact on human health and the environment increases, – Ecoclub).
Ammonia and hydrogen sulfide, as well as ammonia, formaldehyde and hydrogen sulfide, have the effect of summation of harmful effects. Therefore, the Department did not pay attention to the lack of a full description of the impact on the environment after the planned activity, mentioned in the report.
– The data on Ustia`s surface waters state, mentioned in the report, significantly differs from the data mentioned in the Department`s reports on the environmental state in 2019 and in specialized hydrological publications, scientific reports.
Report`s developers claim that there is more water in the river near the enterprise and it is cleaner than the Department itself reports. This is one of the manipulations that made it possible to obtain a positive conclusion on the plant`s construction.
“In its decision, the Rivne Regional Administrative Court actually stated: the investor did not prove the acceptability of the planned activity, and the state body – the Department – ignored obvious gaps and issued a permit to start construction of a dangerous facility. Now this decision has been canceled,” says Natalia Kholodova, Ecoclub campaigner.
During the trial, the woodworking enterprise was involved in the case as a third party on the side of the defendant (the Department). Kronospan lawyers participated in the court hearings, defending the legality of the positive conclusion on the report.
Read more here, about why the environmental impact assessment tool in Ukraine works imperfectly and recommendations on how to change it for the benefit of communities and the environment.
WHY IS THIS VICTORY IMPORTANT FOR THE NATURE PROTECTION MOVEMENT IN UKRAINE?
Ecoclub`s case against the Department is one of the few in Ukraine when the court considered the issue of compliance with the entire EIA procedure and the safety of the planned activity.
Andriy Andrusevich, an international expert on legal protection of the environment, a member of the board and a senior analyst of the Resource & Analysis Center “Society and Environment”, says: this is an important decision for the country, which creates precedents for the future, as in the practical field – the work of experts, contractors, state bodies , as well as in judicial practice:
“The consideration of the case and the court’s decision surprised me with a thorough approach. Courts of all countries of the world have difficulties when considering environmental protection cases, because it requires considering not only legal issues, but complex environmental problems. Given that the court separately noted the importance of complying with the requirements for informing the public, ensuring its participation and taking into account their comments, this decision is a significant victory for citizens who are concerned about the state of the environment.
The Rivne Regional Administrative Court heard a number of witnesses, took into account their testimony and independently came to conclusions regarding the groundlessness and unreliability of the permit document – Kronospan`s EIA positive conclusion. This required a lot of time and effort from the court. In addition, the court did not treat the requirements for public participation as some kind of formality – this also shows the court’s modern and unbiased view of the requirements of environmental law, in particular international law,” says the expert.
Using this case as an example, now potentially dangerous facilities, which are planning to start production, will more responsibly prepare assessments of the impact on the environment and the health of local residents, claims Ecoclub`s lawyer Vitaliy Kitovsky:
“The same is for authorities that confirm the safety of such enterprises and issue conclusions on the permissibility of the relevant activity.”
After the victory, Ukraine will have a post-war reconstruction, so during the reconstruction it is important to improve the past reforms, focusing on the standards of the European Union. In addition, our country is currently applying to become a member of the EU, where the environment is one of the priorities.
“The environmental impact assessment procedure should work efficiently without creating corruption and bureaucratic barriers in Ukraine. This means that there should be no such decisions in Ukraine that were annulled by the Rivne Regional Administrative Court. We hope that this court decision will become a pillar of an improved legal framework that will force investors to qualitatively assess the impact on the environment and will not allow us to make dubious decisions,” Natalia Kholodova said.
WHAT’S NEXT?
If the Department, “Kronospan Rivne” or architectural company “ABMK” file an appeal, the decision of the Rivne Regional Administrative Court will not enter into force. The appeal will be considered by the Lviv Administrative Court of Appeal.
“The decision of the appeals court takes effect immediately, but it will be possible to challenge it in the Supreme Court,” says Vitaly Kitovskyi.
Ecoclub will continue to work on improving the environmental impact assessment system in Ukraine. One of the immediate plans is to investigate how the EIA mechanism works abroad. If the appeal does not support the decision to cancel the positive conclusion, which the Department issued, Ecoclub will continue to challenge the legality of the positive conclusion in higher institutions.
ADDITIONS:
Kronospan is a woodworking corporation that has more than 50 factories in Europe. Since 2005, the company has been operating in Ukraine, in the city of Novovolynsk (Volyn oblast). Local residents have repeatedly complained about the stench, which occurred after the excessive emissions into the air. In 2020, during an unscheduled inspection, the state eco-inspection found significant violations at the enterprise: the fine for environmental damage amounted to almost 300,000 hryvnias.
Kronospan`s factories are also operating in russia and belarus. With the beginning of a russia`s full-scale invasion of Ukraine, the work of factories in the aggressor countries did not stop at all. According to our rough estimates, in 2020 russian Kronospan has paid about $12 billion in taxes.