I would like to clarify that I am writing this Communication as a concerned citizen and not in my capacity as a member of the German Parliament.

Transcription

1 Sylvia Kotting-Uhl Germany Ms Aphrodite Smagadi Secretary to the Compliance Committee United Nations Economic Commission for Europe Environment and Human Settlement Division Room 332, Palais des Nations 1211 Geneva 10, Switzerland By only: 12 June 2013 Communication to the Aarhus Convention s Compliance Committee concerning public participation in transboundary environmental impact assessment procedures This Communication wishes to bring before the Aarhus Convention s Compliance Committee the concern about a failure of compliance of the United Kingdom (UK) with its obligations under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [Aarhus 1998], hereafter The Aarhus Convention. Noncompliance is alleged on the grounds that the UK, as the party of origin to the planned construction of two third generation nuclear reactors at Hinkley Point, hereafter Hinkley Point C, did not provide the German public with an opportunity to participate in the corresponding transboundary Environmental Impact Assessment (EIA). This specific case of non-compliance highlights the need for clarification of the fundamental legal right of citizens to participate in the decision-making procedures concerning the construction of nuclear power plants in neighbouring countries independently of national frontiers and government positions. I would like to clarify that I am writing this Communication as a concerned citizen and not in my capacity as a member of the German Parliament. 1. Description of Events In their Nuclear National Policy Statement of 18 October 2010, the British government announced Hinkley Point to be a suitable location for new nuclear power plants. On 31 October 2011, the Planning Inspectorate received an application for a development consent from EDF and accepted it on 24 November On 2 December 2011, departing from usual public consultation rules as introduced by the amendments to the Planning Act 2009, the Planning Inspectorate announced a 28 day registration period, in which interested parties could register to 1 Submission/Procedural%20Decisions/111124_EN010001_Accept_Application_letter.pdf 1

2 take part in the planning process. 2 The registration period ended on 23 January 2012 and registrations were again accepted in May With reference to the Convention on Environmental Impact Assessment in a Transboundary Context [Espoo 1991], the Republic of Austria successfully requested participation in the relevant procedure on 8 October 2013 and received the corresponding documents for examination on 18 September On 26 November 2012 the UK Office for Nuclear Regulation issued a nuclear site license and on 13 December 2012 a Design Acceptance Confirmation. On 19 December 2012, the Planning Inspectorate issued a report containing recommendation to the Secretary of State for Energy and Climate Change, Edward Davey. 3 Then, between 21 January and 1 March 2013, the Austrian public had the opportunity to review and comment on the documents received from the UK. 4 An expert statement and a number of comments from groups and individuals were sent to the UK authorities on 5 March Upon receiving a confirmation from the German government that it had not been notified about the proposed project at Hinkley Point C, I sent a letter to Secretary of State Edward Davey on 13 March 2013, 5 requesting the participation of the German public in the procedure. This letter was acknowledged but the request dismissed in a response on 15 March Without any reference to this request, Secretary of State Edward Davey issued the Development Consent Order for the construction of Hinkley Point C on 19 March Nature of Alleged Non-Compliance This Communication brings to the Compliance Committee s attention a specific case concerning the right of members of the public to participate in a transboundary EIA of an activity in another country. This particular case bears wider implications for the interpretation of the provisions of the Aarhus Convention with respect to the fundamental rights of citizens to express concerns about activities that may have an extensive impact on the environment. The specific case in question concerns the construction of two European Pressurized Reactors (EPR) at Hinkley Point C, for which a Development Consent Order was issued with the participation one concerned public, the Austrian public, but not another, the German public. In itself, this constitutes a clear violation of the participatory rights of the affected public in a matter of transboundary nature. Judging a severe accident to be extremely unlikely, the UK did not identify and then notify any affected. This judgment is, however, based on the misguided interpretation of impact as referring only to the planned construction and operation of the project in question. What it fails to consider, are other scenarios such as a severe accident, caused for example by an airplane strike, the total loss of power and loss of cooling efficiency owing to the growth of marine organisms over the intake of pipes, human error or system failure and leading to a core meltdown and reactor explosion. Such events may have impacts on neighbouring countries, including Germany, as the example of the Chernobyl accident of 1986 demonstrated. Since such events cannot be excluded beyond doubt, the German public is a concerned public, especially so as the Austrian public has been treated as such. The wider implication of this particular case concerns the fundamental legal right of citizens to participate in a decision-making process concerning the environment even a) when the project in question is located a neighbouring country, and b) independently of the question whether the 2 Note, although information was available on the website, this was only advertised in the immediate area around Hinkley, leaving the public at large ignorant about the process unless they had a particular pre-existing interest in the issue. 3 S%20HPC%20Decision%20Letter%20Annex%20A.pdf 4 All relevant documents can be found on the website of the Austrian Ministry for the Environment: 5 Annex 1 6 Annex 2 7 Annex 3 2

3 own government (in this case the German government) has asked for participation in the decision-making process. While some may regard this to be implicit in the Aarhus Convention, this specific case highlights that some governments consider citizens participation in a transboundary environmental procedure to be a mere question of intergovernmental cooperation. The rationale behind the public participation pillar of the Aarhus Convention was the need to ensure open, regular, and transparent decision-making processes on environmental issues, in which the public can have confidence. There are considerations both of value as well as of practicality. Concerning the value of participatory rights, the seventh recital to the Aarhus Convention points to the fundamental right of the members of the public to mechanisms that allow them to assert and protect their right to live in an environment that is adequate to health and well-being. 8 The public must be given the opportunity to express its concerns and that those concerns are given due account by the responsible public authorities. In terms of practical considerations, the Aarhus Implementation Guide specifies public participation to be vitally important, because the public is not only a valuable source of information, but also ensures the transparency of the decision-making process, accountability of the decision-makers, and legitimacy of the outcome. 9 The Guide further asserts that while it may be tempting to cut corners to reach a result that might appear on the surface to be the best, there are countless cases where expected hidden factors become apparent only through a public participation process, with the result that potentially costly mistakes are avoided. 10 We all share one environment which does not recognize borders. The public thus has the right to be informed and to express its comments about decisions to authorise a project, which can affect their environment, even when the decision is taken by authorities of another country. 3. Legal Arguments The following provisions of the Aarhus Convention form the legal basis of the allegation of noncompliance in the case of Hinkley Point C and simultaneously highlight the need for clarification of the fundamental rights of citizens to participation in transboundary EIA and development procedures concerning activities listed in Appendix I to the Aarhus Convention Article 6 of the Aarhus Convention Article 6, paragraph 1 (a) requires that each party Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in Annex I. As nuclear power stations are listed in Item 1 of Annex I, the provisions of Article 6 on public participation in decision-making processes concerning the environmental impact of the project apply to this specific case. Article 6, paragraph 2 requires that The public concerned 11 shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of: 8 Cf. Aarhus Convention. 9 Cf. pp. 115 ff.: _text_only.pdf. 10 Ibid. p As defined in Article 5, Paragraph 5, Public concerned means the public affected or likely to be affected by, or having and interest in, the environmental decision-making. 3

4 (a) The proposed activity and the application on which a decision will be taken; (b) The nature of possible decisions or the draft decision; (c) The public authority responsible for making the decision; (d) The envisaged procedure, including, as and when this information can be provided: (i) The commencement of the procedure; (ii) The opportunities for the public to participate; (iii) The time an venue of any envisaged public hearing; (iv) An indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public; (v) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and (vi) An indication of what environmental information relevant to the proposed activity is available; and (e) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure. Article 6, paragraph 4 requires that Each Party shall provide for early public participation, when all options are still open and effective public participation can take place. Article 6, paragraph 5 requires that Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where to required under national law, free of charge and as soon as it become available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of the Parties to refuse to disclose certain information in accordance with Article 4, paragraphs 3 and 4. [...] Article 6, paragraph 7 requires that Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that is considered relevant to the proposed activity. These provisions do not differentiate between the participation of persons, who live in the country, where the project is to be realised, and persons of another country. This is only logical, as the environment knows no frontiers. In the present case, it is obvious that the consequences of a serious accident at Hinkley Point C would not necessarily stop at the borders of the UK. In particular the Western winds which dominate in the North-East Atlantic, the UK and the North Sea, are likely to transport nuclear outfalls also to Germany. If it is possible for a party to the Aarhus Convention, that is, a government, to request participation, as the Austrian government did in the case of Hinkley Point C, members of the concerned public should also have the legal right to do so; for otherwise their rights depend on the position of their government. However, this is incompatible with the concept of the Aarhus Convention, which does no organise the right to participate as a conditional right. Rather, it grants citizens an unconditional right of their own Discrimination of the German Public We are furthermore of the opinion that the British government discriminated against the German public and thereby infringed upon the general principle of international law which also underlies the Aarhus Convention which prohibits discrimination. This principle holds that equal situations must be treated equally. 4

5 The British government allowed the participation of the Austrian public in the decision-making process concerning Hinkley Point C, but did not provide for the participation of the German public, even though, geographically, Germany is located closer to the planned power station than Austria. German citizens would thus be more likely to be affected by an accident than the Austrian public. Hence, there is no legitimate reason to exclude the German public from participation. The fact that the Austrian government had requested the participation of its citizens, and the German government has not formulated the same request, is not a relevant aspect with regards to the Aarhus Convention. As pointed out above, the Aarhus Convention does not differentiate between such cases, but considers as relevant only the fact, whether a public is concerned. 4. Steps Undertaken Preceding this Communication 4.1. My Own Initiatives In the pursuit of the participation of German citizens in the Hinkley Point C permitting and EIA procedure, both national and international attempts were made to obtain such participation National Level Following a confirmation that the German government had indeed not been notified about the proposed project Hinkley Point C, 12 a letter asking the government to request a notification from the UK was sent to the acting Minister of the Environment, Peter Altmaier. 13 Unfortunately, the Minister decided this to be unnecessary. 14 A letter requesting participation of the German public prior to the issuing of the Development Consent Order for Hinkley Point C was also sent to Secretary of State Edward Davey on 15 March The reply from 15 March 2013 dismissed this request and proceeded as planned International Level Following the issuing of the Development Consent Order for Hinkley Point C without prior consultation with the German public, an Information was sent to the Espoo Implementation Committee, alleging the UK s non-compliance with the Espoo Convention s provisions for notification and public participation. The Espoo Implementation Committee will be reviewing this Information at its next meeting (10 12 September 2013). A letter of complaint was also sent to the European Commission, alleging non-compliance of the UK with the provisions on transboundary environmental impact assessment as laid out by Directive 2011/92/EU. A response has, at the time of writing, not been received. 15 We would like to point out, however, that both the Espoo Convention and the relevant EU legislation (Directive 2011/92/EU) contain specific provisions for transboundary EIA procedures. In contrast to that, the Aarhus Convention is the only relevant legal instrument which takes as the point of departure the question, whether the public is concerned by the project. While we believe that the provisions of Articles 6 and 7 of Directive 2011/92/EU apply cumulatively and not alternatively the Espoo Convention is a classical intergovernmental agreement and therefore does not deal with the right of the public to participate in decision-making processes, we are of 12 Annex 4 13 Annex 5 14 Annex 6 15 Annex 7 5

6 the opinion that only the Aarhus Convention can ascertain the fundamental procedural right of the public to participate in environmental decision-making, independently of national frontiers Other Interested Parties Other concerned members of the public of potentially affected areas have been active with respect to the same or similar concerns National Level An Taisce, The National Trust for Ireland, has requested a judicial review of the decision to grant development consent for the Hinkley Point C with reference to non-compliance of the UK with national and EU law concerning the participation of the Irish public in a transboundary EIA. There has not been a ruling at the time of writing. Greenpeace UK is challenging the Hinkley Point C development consent on the ground that the government has no acceptable solution for the problem of radioactive waste. There has not been a ruling at the time of writing International Level Friends of the Irish Environment have also sent an Information to the Espoo Convention s Implementation Committee, also alleging non-compliance of the UK with the Espoo Convention, by way of not providing an opportunity for participation of the Irish public in a transboundary EIA. This will also be discussed at the Committee s next meeting in September. A local politician of the German Green Party, Brigitte Artmann, lodged a complaint with the European Commission. An answer is outstanding. 5. Request We ask the Aarhus Convention s Compliance Committee to confirm that the UK has infringed upon its obligations under the Aarhus Convention, by not providing for the participation of the German public in the EIA and the development consent procedure concerning the nuclear installation Hinkley Point C. In addition, we ask the Committee to consider a clarification of the fundamental rights to participation of the members of the public, independently of national frontiers and a government s positions. 6

7 Annex 1. Letter from Sylvia Kotting-Uhl to Secretary of State Edward Davey, 13/03/ Letter from Giles Scott on behalf of Secretary of State Edward Davey to Sylvia Kotting-Uhl, 15/03/ Development Consent Order issued by Secretary of State Edward Davey, 19/03/ Confirmation of the German government that no notification from the UK was received, 20/02/ Letter from Sylvia Kotting-Uhl to Minister of the Environment Peter Altmaier, 01/03/ Letter from Ursula Heinen-Esser on behalf of Minister of the Environment Peter Altmaier to Sylvia Kotting-Uhl, 21/03/ Letter from Sylvia Kotting-Uhl to EU Commissioner Janez Potočnik, 12/03/