Legal Alert – Proposal For More Stringent Assessment Of Natural Values In Environmental Permits And Infra Construction
Natural values and their protection were included in the Prime Minister Jyrki Katainens government programme as an area for improvement. Hence, the possibility to include the protection of natural values in the Environmental Protection Act is now being investigated. In the current Finnish system pollution control issues are provided in the Environmental Protection Act, whereas natural values are protected by the Nature Conservation Act, zoning legislation and natural resources legislation. The current state of how natural values are mainly regulated by the Nature Conservation Act has been considered to be insufficient by the Ministry of the Environment.
The Ministry of the Environment has on 30 November 2011 appointed a working group to investigate the revision of the Environmental Protection Act, among others. The working group was divided into four project groups, of which the fourth group was assigned to investigate whether regulation regarding natural values and their consideration should be incorporated into the Environmental Protection Act.
To support the fourth group, reports were ordered on the matter for example from professor Ari Ekroos and Matias Warsta. Their report Natural values in the environmental permit procedure A report on the revision possibilities of the Environmental Protection Act and other legislation dated 11 March 2012 is available on the website of the environmental administration (www.ymparisto.fi).
Ekrooss and Warstas report presents several possibilities on how natural values could better be included into the Finnish environmental legislation. These suggested revisions can be divided into three groups.
The first alternative concerns the Environmental Protection Act. The current Act is connected with the Nature Conservation Act through reference provisions, which means that natural values are considered to some extent during the environmental permit procedure. Thus, mainly such values that are protected by virtue of Nature Conservation Act are taken into account.
Ekroos and Warsta point out two central areas where changes would strengthen the position of natural values in the environmental permit procedure. The first one concern the selection of location. A revised regulation could include a more thorough obligation to consider natural values when deciding upon the location for the activity. Secondly, the possibility of giving more importance to natural values in the conditions for granting an environmental permit is discussed. These changes would require that the concept of a natural value would be defined in the Environmental Protection Act. Thus, the scope of protected natural values would be expanded and the provisions concerning nature conservation would be divided into two different statutes.
The second group of possible revisions suggested by Ekroos and Warsta regards other comprehensive changes of legislation and laws that would concerns all types of projects and not only those requiring environmental permit. For example a prohibition of diminishing natural values could be introduced into the Nature Conservation Act and an activity could be allowed to differ from the prohibition only through permits, if the effect of the activity would not essentially weaken the natural values and be of public interest. Another suggested change regards an expanded environmental impact assessment, where also small-scale projects with altering effects on the environment could be assessed. Finally, also revisions of the Land Use and Building Act are suggested. Here a new permit for assessing alteration on environment with natural values is suggested to be included into the Act.
The third group of suggested changes is restricted to activities regarding peat production, which relate to the public debate on the environmental impact of this specific production. In this section, revisions regarding natural values and their consideration in peat production activities are suggested to the Environmental Protection Act, Nature Conservation Act and Water Act, among others.
At this point it is not yet possible to estimate the result of the revision of the Environmental Protection Act but it would seem likely that some revisions regarding natural values will be carried out. Especially some of the suggested amendments would mean significant changes to the current permit system. Therefore it is of importance for stakeholders to closely monitor the drafting process and assess the impact of the suggested amendments to be able to communicate these during the upcoming commenting phase. Some of the proposals would not only concern industrial activities but also target e.g. construction of infrastructure, which may have a wide-ranging impact on infra projects. The circulation for comment regarding the government bill to amend the Environmental Protection Act will be carried out during October and November. Attorneys at law Borenius will arrange a breakfast seminar on the matter on 6 November 2012. A separate save-the-date and invitation will be sent.