Other procedural aspects

Suggestions and observations

The authors on the project suggest that even if the old, sectoral environmental liability laws are used in certain cases, the goals of the measures prescribed in the ELD laws should orient the efforts and determine the evaluation of the results. Accordingly, special substantive and procedural rules should be inserted into the tissue of the national water, nature protection, and land protection laws, including those defining the basic professional requirements of the officials working for such authorities, as well as the rules of information exchange and professional connections with the ELD competent authority.

Prevention seems to be a less cultivated part of the measures. As a result, it is necessary for authorities to establish a clearly defined plan of controls with the prioritization of more risky operations. In this way, the concept of prevention could be broadened within the ELD system to include measures a long time before actual, measurable dangers emerge.

Interconnections with other chapters

Chapter I: having an official register of operators is a condition of the work of the competent authorities to detect non-compliance and initiate measures in all cases belonging to the ELD;

Chapter II: sectoral legislation, in regard to which preventive measures are usually foreseen and prescribed earlier in the permitting procedures and in greater detail, will play a determining role in selecting measures within ELD procedures;

Chapter III and IV: the training of the authorities that support the work of the competent authority should encompass the definitions of damage and available remediation and restoration techniques in respect of their capability to take part or in some cases manage the restoration of the polluted sites.

VI.3 Other procedural aspects

Our questions in this chapter targeted procedural aspects after the onset of ELD procedures, which might include:

 evidence-taking,

 the role of experts,

 the decision itself, and

 the application of legal remedies.

We should add that four major procedural aspects of the ELD laws will be addressed in later chapters: implementation and enforcement (VI.4), timeliness of procedures (VII), costs (VIII), and public participation (IX).

155 Evidence-taking

Ágnes Gajdics, the Hungarian expert on the project, pointed out that principles of general administrative procedural law are also relevant in ELD procedures: “In environmental administrative proceedings, the general provisions of administrative proceedings and the specific environmental provisions apply. Where the information available is insufficient for bringing a decision, the authority shall initiate a procedure for taking evidence. In administrative proceedings all evidence is admissible which is suitable for ascertaining the relevant facts of the case. The facts which are officially known to the authority and which are of common knowledge shall not be evidenced. The authority is free to define the means and extent of the evidentiary procedure and may assess the evidence available at its own discretion.”²⁷

Within the broader frames of general administrative procedure laws, ELD cases have some specificities; however, this is in order to reinforce the procedural position of the environmental authorities. The evidence-taking procedures related to environmental damage or endangerment cases are unimaginable without site inspection. The supervisory authorities, in order to undertake their tasks, have to have access to properties, buildings, other structures and means of transport for the purpose of carrying out investigations and taking other measures. Ultimately, the supervisory authority may be assisted by the police. During an inspection on site, the representative of the supervisory authority can take evidence, such as photos and samples, can hear witnesses, make official notes and protocols etc. (SE, PL). In the event of serious indications suggesting that books, registers, documents, writings and other evidence of the harmful event are located in premises other than where the harmful event has occurred, the chief environmental authority may request authorization from the competent judicial authority for the search of these premises (ITA).

Considering the usually long individual histories of ELD cases, documentary evidence is also very important. Activities that require a permit for environmentally harmful operations must annually deliver an environmental report regarding the licensed activity, which reports might be looked up in case of a pollution event, together with other documents describing the several stages of the operation that led to the pollution (SE).

Not all the evidence is to be collected directly by the authority or the complainants; evidence produced by the operator plays an important role in ELD cases because of the monopolistic situation of the operator in having access to certain data and knowledge. The operator of an activity is obliged to submit information to an inspector upon request, provided that the information is necessary for the performance of an inspection task (SE, PL).

On the other hand, considering the high financial and moral stakes of ELD cases, the guarantees of the legality of evidence taking must be enhanced. The legality of the authority’s evidence-taking measures is frequently questioned; therefore it is vital that everything happens according to the protocols and standards of evidence taking (SE). These rules might be quite complicated and require additional professional training for officials. While many environmental liability facts are difficult to prove, some types of cases, especially where the discharge of pollutants can hardly be traced, turn out to be especially difficult. Water damage, for instance, with regard to the ELD might be quite problematic to clarify, because of the notion of water damage itself, the different kinds of thresholds provided for by the WFD, and, above all, the complexity of the data (e.g. on the spread of the

27 Hungarian national study, page 20

156 pollutants in surface and underground waters, the directions of flow and mixing with other pollutants) (BE).

The role of experts in environmental liability cases is key. In the majority of cases that were analysed and discussed through interviews, experts would be involved by both the competent authority (while assessing the damage and remediation measures), and the operator submitting thea proposal for remediation measures, as well as performing them (as the case may require). The consultants employed by the operator would not be under the control of the authority in respect of the competence needed, so there is a risk that a private evidence investigation subsequently not be accepted (LV, SE). The environmental authority can appoint an expert from a ministerial office or, taking into account the financial resources available, as well as the complexity and speciality of the cases, appoint an independent expert (IT, PL). As highlighted by the NGOs and the Deputy Commissioner for Future Generations during the interviews, too, expertise is crucial in ELD cases.

WWF Hungary, however, claimed that the capacities and expertise of the officials of the competent authorities that have competence in ELD cases cannot be considered sufficient (HU). As an interviewee noted, environmental damage notifications by NGOs are handled differently by several authorities. In some cases, the authorities have conducted their own professional investigations following a report, while in other cases they have asked the notifying NGOs to provide the necessary evidence (DE).

Cooperation of competent authorities and other authorities

It also stems from the complexity of ELD cases that the cooperation of the competent authorities and other authorities must take place in the majority of these administrative procedures, as was noted in Chapter II. There is a procedural legal obligation for the relevant supervisory authorities to cooperate and to coordinate actions. This obligation is of special importance when at a site one or more operators run several activities which fall under the jurisdiction of different supervisory authorities (SE). In Italy, the chief environmental authority works on ELD cases in collaboration with the regions, the local authorities, and any other public authority that is entitled to participate, such as the prefect, the prosecutor, the forestry corps and the carabinieri. In 2017, the most important cooperating agencies established the National System for Environmental Protection, which represents a new organizational model of interaction between the competent regional and provincial agencies for environmental protection. While the chief environmental authority is the body entrusted, through a Ministerial decree, with the power to investigate and assess cases of damage and/or threats of damage, it can and does request that any other public bodies with adequate competence ascertain the facts and identify the transgressors (IT). In Ireland, the competent authority has a strong leading position in harmonizing the efforts of several authorities in an ELD case. Where there is environmental damage or an imminent threat of environmental damage, the Regulations require that public authorities comply with requests for information from the EPA on the performance of their statutory functions in relation to the prevention or remediation of environmental damage. The EPA can also issue directions requiring the public authority to carry out such action related to the function the EPA considers necessary for the purposes of preventing or remedying the damage. If the authority fails to comply with such a direction, the EPA can carry out the action itself and recover the cost from the public authority (IE).

In Portugal, environmental authorities have undersigned several cooperation protocols with the public prosecutors’ offices: the signatory authorities are committed by these institutional protocols to identify and/or implement articulated measures aimed at preventing or eliminating situations of environmental danger. The cooperation programs are assessed annually, evaluating mutual support

157 and the availability of technical information, the work of experts and their reports, while parties organise technical meetings, documentation analyses, specialized interventions and develop capacity-building action aimed at the staff of both kinds of authorities (PT).

In several countries there is general guidance for inter-agency cooperation. In Greece, the chief environmental authority issued a circular in 2011 for the cooperation and coordination of the competent authorities on matters concerning the implementation of the national environmental liability law, which describes the responsibilities of the national and regional environmental competent authorities and defines the framework for the cooperation of those agencies with the environmental inspectorate. Accordingly, no practical problems are reported with cooperation, or overlapping or negative competence collisions among the competent authorities (EL).

Legal remedies

After the decision is brought, legal remedies are typically applied in ELD cases. Considering the size and importance of these cases, legal remedies are handled at the highest administrative levels, and court revisions are of elevated importance, too. Almost all combinations exist Europe-wide: one or two instances at the administrative level, and one or two levels of court remedies. In Italy, for instance, according to a special modification of the General Administrative Procedure Act, regular legal remedy cannot involve issuing a complaint against the decision of the chief environmental authority to the Ministry, but the party in the procedure can begin the court procedure at thean Administrative Court directly. As an extraordinary remedy, however, the operator (but not the other parties in the administrative case) can resort to both, judicial and non-judicial remedies. The system of non-judicial procedures provides for an extraordinary and residual means of appeal – so-called Appeal before the President of the Republic – through which only the legality (not the merits) of a definitive act of the environmental authority can be challenged. The appeal before the President of the Republic can be filed within 120 days from the notification of the contested decision (IT). The operators with regard to which the competent authority took preventive or remedial action, may also appeal to the Flemish Government against decisions concerning these actions. The appeal should be issued to the Flemish Government within 30 days of the day of receipt of the contested decision (in the Walloon Region, this should be done within 10 working days). The Flemish Government will make a decision on admissibility within a period of fourteen days after receipt of the appeal (in the Walloon Region, within 10 working days). Within a period of 90 days after the declaration of the admissibility of the appeal, the Flemish Government will make a decision about the appeal. If the decision on the submitted appeal is not made within a period of 90 days, the appeal is deemed to have been rejected. The decision of the Flemish Government can be appealed before the supreme Administrative Court (Council of State) within 60 days (BE).

While the Italian and Belgian system of fora seems to be very complex, at the other extreme, in Hungary (since 1 March 2020), administrative decisions of the environmental authority have been taken in single instance proceedings with no exemption, i.e. the decision of the environmental authority is definitive and can be challenged only before the court within 30 days of its delivery (HU).

In Sweden more weight is put on the courts. Decisions on a local level can be challenged through administrative appeal to the County Administrative Boards (CAB). Decisions taken by CAB in the first or second instance can be challenged at one of the five Land and Environment Courts (LECs). Some kinds of cases are heard at the LECs in the first instance. Rulings from the LEC may be brought to the Land and Environment Court of Appeal (LECA), which is the final instance in environmental cases that started at authority level. Cases that have started at the LEC, such as civil disputes and certain

158 licensing cases in connection with environmental liability may, via the LECA, be appealed to the Supreme Court as the final instance. In all cases appealed to the LECA and the Supreme Court, exhaustion of the administrative appeal is a requirement (SE).

Courts are usually not bound by the facts established by administrative decisions. The ability of the court to re-examine ELD cases in depth may be categorized as an inquisitorial procedure, i.e. an ex officio examination of the cases at hand. The Court may refer to other grounds for its decision than the claimant has invoked in the appealed cases, and is, by a reformatory process, in principle, is put in the same position as the first deciding authority, and may alter the disputed decision or put a new decision in its place (SE).

In environmental cases, regular legal remedies might proceed with suspensive effect or with injunctive relief. The appeal of orders occurs in accordance with the Code of Administrative Procedure, which ensures for the appeal a suspensive effect, but it is possible to include in the decision an order of its preliminary implementation for immediate prevention of the expansion of damages in the public interest (BG). Under other jurisdictions, however, taking into consideration the urgency of the arrangements at the ELD sites, the appeal is non-suspensive (BE). The Irish Regulations provide that a person on whom a direction is served may appeal against the direction to the District Court in which the direction was served within seven days beginning on the day on which the direction is served on them. In determining the appeal, the judge may, if satisfied that it is reasonable to do so, confirm, vary, or cancel the notice. When at the hearing of an appeal a direction is confirmed, the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the direction for such period as in the circumstances of the case (IRE).

An interesting phenomenon of legal sociology was highlighted by Tapani Veistola, the Finnish national expert: court procedures might discourage administrative authorities. In a concrete case, illegal work to find minerals in the Natura 2000 sites Romppaat and Mustiaapa-Kaattasjärvi in Lapland in 2010-2011, the use of heavy machinery caused a significant loss of orchid species and other damages to the forest habitat type boreal taiga in 2015. The environmental authority made a decision on restoration action and compensation. However, the regional court rejected the decision in 2017. The environmental authority did not make a complaint to the Supreme Administrative Court, but could not uphold its earlier decision either. For this reason, this case is not officially classified as a real ELD case anymore (FI). These experiences are reinforced by several cases of public interest environmental lawyers in other countries, too (HU).

Transboundary procedures

Considering that the ELD cases are typically of a large scale, transboundary effects are not rare, which feature entails undertaking transboundary procedures with special cooperation among authorities on several sides of state borders. When environmental damage affects or could affect the territory of the Republic of Slovenia and another Member State, the Ministry (and the chief environmental inspectorate) must send a notification to and cooperate with the competent body of such State, exchanging information and data required for the prevention, limitation, or remediation of damage.

The competent body shall notify the European Commission, too, about the environmental damage that has occurred and propose the adoption of preventive or remedial measures. The Ministry (or the inspectorate) shall require that the person causing the environmental damage reimburse the costs arising from the implementation of preventive or remedial measures outside the Republic of Slovenia, too (SI). The Belgian national study revealed several transboundary cases, either between the regions within Belgium or with neighbouring countries, such as the Netherlands, Luxembourg, or

159 France. Internally, Belgium introduced a transboundary alert procedure within the River Scheldt Treaty, within the frames, which, inter alia, the source of pollution can be identified, or monitoring of the environmental damage to water and biodiversity may be carried out. In Belgium, the Walloon Region has a border with the Grand Duchy of Luxembourg and similarly with France, and they share several river watersheds. The national authorities in these countries and States have to alert each other in case of an incident concerning these watersheds. They also have to take the necessary protective or remediation measures in a concerted way, with the coordination of those national authorities from areas in which the bulk of pollution or endangerment happened. On the other hand, the authorities where the activities are carried out will have to impose the necessary measures against the liable operator and take steps to recover the costs. In practical cases, authorities on both sides of the border have each appointed lawyers to represent their interests in potential transboundary criminal and/or civil cases to recover damages. In a concrete case described in our research, the Flemish authorities decided to introduce a complaint with an investigation judge in another region, and constitute themselves as a civil party (BE).

VI.3.B Evaluation by in-depth researchers

Making evidence-taking more effective

Authors interconnect the topic of ELD databases with proof in practical procedures of liability cases.

Experts in cases could use these databases as starting points in their work, in this way making their conclusions well-based and comparative, and enhancing the reliability and professional quality of their opinions. This is indeed an issue relevant for establishing baseline conditions, thus allowing for an assessment as toof whether environmental damage has occurred. A lack of these baseline data – or inability to collect them by the competent authorities – may result in the discontinuation of proceedings. Also, in the absence of relevant data, in a case of a request for action submitted by a citizen or a NGO, the authorities expect them to submit relevant information (evidence), which

Experts in cases could use these databases as starting points in their work, in this way making their conclusions well-based and comparative, and enhancing the reliability and professional quality of their opinions. This is indeed an issue relevant for establishing baseline conditions, thus allowing for an assessment as toof whether environmental damage has occurred. A lack of these baseline data – or inability to collect them by the competent authorities – may result in the discontinuation of proceedings. Also, in the absence of relevant data, in a case of a request for action submitted by a citizen or a NGO, the authorities expect them to submit relevant information (evidence), which