Friday, April 28, 2017
This is an interesting case which considers the obligation of Member States to assess fully the implications of a project on the conservation objectives of a European Site under the Habitats Directive 1992/43/EEC, even where that site is situated some 600km upstream of the project. It also deals with the distinction between an avoidance or mitigation measure, on the one hand, and a compensatory measure on the other.
The German authorities authorised the construction of a coal-fired power plant in Moorburg (Moorburg plant), on the River Elbe and near the City of Hamburg, in September 2008. The operation of the plant required cooling water which was obtained via continuous abstraction of water from the River (cooling water system). It was acknowledged in the environmental assessment for the project that the cooling water system would impact fish species in the river, including river lamprey, sea lamprey and salmon, all migratory fish species listed in Annex II of the Habitats Directive.
Approximately 30km upstream of the Moorburg plant is an existing weir with a fish ladder to allow fish to bypass the weir to reach breeding / spawning grounds upstream. Approximately 600km upstream of the Moorburg plant are Natura 2000 sites (referred to as European Sites under Irish Legislation), the conservation objectives of which included the protection and conservation of fish species including river lamprey, sea lamprey and salmon. The River Elbe itself forms an ecological corridor and migratory route for these fish species. Also approximately 30km upstream at the weir is an existing pumped hydroelectric power project, operational since 1958, and there was in 2008 an application for a further project at that location, a ‘run-of-river’ hydroelectric plant, although that application was subsequently withdrawn in 2010.
The developer’s proposal for the Moorburg plant included a proposal to install a second fish ladder at the weir, with the stated intention of increasing the number of fish species who would reach the upstream areas including the European Sites. Germany considered that the decisive consideration under article 6 of the Directive is whether the composition of the populations of species within the European Sites would be protected and maintained, and Germany considered that the proposed second fish ladder, together with other measures to reduce the number of fish killed by the cooling water system, would result in no change to the qualifying interests in the European Sites.
According to Germany, the competent authority in granting approval for the project adopted a precautionary approach by including as a condition a requirement for on-going multi-phase monitoring to prove the effectiveness of the fish ladder in achieving this aim, and Germany provided data gathered between 2011 – 2014 for this purpose. Germany argued that whilst this data was gathered after the grant of approval in 2008, it should not be excluded from the proceedings because it was commissioned at the time of the decision to grant approval and was an integral part of that decision and the impact assessment carried out in accordance with the Directive.
The Commission sought declarations from the Court that by authorising the construction of the Moorburg plant Germany had failed to comply with articles 6(3) and 6(4) of the Habitats Directive 92/43/EEC, based on the following complaints:
1. That Germany failed to ensure that, before granting consent for the Moorburg plant, it had ascertained that it would not adversely affect the integrity of the upstream European Sites, contrary to the second sentence of article 6(3) of the Directive, in particular that Germany had wrongly classified the second fish ladder as a ‘mitigating’ measure.
2. That Germany had failed to assess the cumulative effects of the Moorburg plant together with other projects including (i) the existing pumped hydro plant operational since 1958, and (ii) the proposed run-of-river power plant.
3. That Germany had failed to assess alternatives to the cooling water system, contrary to article 6(4) of the Directive.
Ultimately the CJEU declared that, by authorising the construction of the Moorburg plant without conducting an appropriate and comprehensive assessment of its implications, Germany failed to fulfil its obligations under Article 6(3) of the Habitats Directive, and found in favour of the Commission in relation to Complaints 1 and 2(i), but not 2(ii) or 3.
The Court held that whilst the Moorburg plant is situated at a considerable distance (600km) from the European Sites, this in no way precludes the applicability of article 6(3) of the Directive. The environmental assessment established that the cooling water system posed a high risk to the migratory Annex II fish species protected in the European Sites, and on this evidence the Court held that Germany ‘could not’ authorise the Moorburg plant until they had made certain that it would not adversely affect the integrity of the European Sites, i.e. Germany must be certain that there is ‘no reasonable doubt from a scientific point of view as to the absence of such adverse effects’, citing its judgment in Lesoochranárske zoskupenie VLK (case C 243/15). Germany was required, in establishing no adverse effects, to take account of the protective measures proposed, and to apply the precautionary principle in assessing the protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects on the site (citing the CJEU judgments in Briels and Others and Orleans and Others Case C-387/15).
The Court appeared to accept the Commission’s argument that the second fish ladder was a compensatory measure, not an avoidance or mitigation measure. The fish ladder was expected to compensate for fish kill by the Moorburg plant cooling system by allowing additional fish to reach their breeding grounds upstream more quickly, thereby increasing stocks at the European Sites.
The Court held that the impact assessment itself did not contain definitive data regarding the effectiveness of the fish ladder, and merely stated that its effectiveness could only be confirmed following several years of monitoring. Accordingly, the Court held that, at the time authorisation was granted, the fish ladder and the other mitigation measures which were intended to reduce direct significant effects on the European Site, ‘could not guarantee beyond all reasonable doubt … that that plant would not adversely affect the integrity of the site, within the meaning of Article 6(3) of the Habitats Directive’. The Court noted that ‘it is at the date of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question’ citing its judgment in Commission v Portugal (Case C 239/04).
Multi-phase or post-consent monitoring cannot be considered as sufficient to ensure performance of the obligation laid down in Article 6(3) of the Habitats Directive. The CJEU was also not satisfied that the monitoring regime was sufficient to establish no significant adverse effects from the cooling water system or the fish ladder.
This complaint related to two projects, one an existing pumped hydroelectric plant existing since 1958 and one a run-of-river hydroelectric plant which was the subject of an application for approval at the time the Moorburg plant authorisation was granted. The Directive requires that all the aspects of a plan or project which could, either individually or in combination with other plans or projects, affect the conservation objectives of a European Site must be identified in the light of the best scientific knowledge in the field, and the Court cited settled case law on this point culminating in its judgment in Grüne Liga Sachsen and Others, C 399/14.
(i) Pumped hydro – built before 1958, this plant pre-dated the Habitats Directive and had not been the subject of an assessment of its impacts on any of the European Sites. Unlike in the Grüne Liga case it was not argued that there should be an examination ex post facto of the effects of the pumped storage plant which pre-dated the Directive, but rather that the effects of that existing plant should be taken into account in the impact assessment of the Moorburg plant. Cumulative assessment must consider all projects which, in combination with the proposed project, are likely to have a significant effect on the European Sites, even where those projects precede the Directive. TThe CJEU held that the ‘in combination effect’ of the Moorburg plant with the pumped storage plant was likely cause deterioration or disturbance likely to affect the migratory fish present in the river and consequently result in the deterioration of the European Site concerned, and should therefore not be excluded from the impact assessment required under Article 6(3) of the Habitats Directive. Accordingly, the failure to assess the cumulative impacts of the Moorburg plant with the pumped hydro project constituted a breach of article 6(3) of the Directive.
(ii) Run-of-river – the Court was satisfied that the application for this project never reached the stage of an approval, as the developer did not have the consent of the relevant landowners / riparian rights holders to make an application which was capable of being approved by the authorities (in effect, it was an invalid or incomplete application). The Court accepted that in these circumstances the run-of-river plant did not constitute another project within the meaning of article 6(3) of the Directive. (The Commission had argued that the project was foreseeable, as an application had been made, and should therefore have been included in the cumulative impact assessment).
Article 6(4) arises where, in spite of a negative assessment carried out in accordance with article 6(3) of the Directive, and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest; the member state must in these circumstances take all compensatory measures necessary to ensure the overall coherence of Natura 2000 is protected.
The Commission alleged that Germany breached article 6(4) by failing to consider an alternative to the cooling water system which would have had a lesser impact on the European Sites and which was economically viable. The Court, in effect, determined that it was not necessary to make any finding in this respect because Germany had concluded that the project would not adversely affect the integrity of the European Sites, and the Court was making declarations to the effect that this breached article 6(3). Accordingly there was no need to go further in relation to article 6(4).
Accordingly, the CJEU declared that, by authorising the construction of the Moorburg plant without conducting an appropriate and comprehensive assessment of its implications, Germany failed to fulfil its obligations under Article 6(3) of the Habitats Directive
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