Balancing Biodiversity Protection and Other Public Interests: Czech Approach

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1 Balancing Biodiversity Protection and Other Public Interests: Czech Approach Mgr. Vojtěch Vomáčka, Ph.D., LL.M. The EELF 2017 Conference 29 August 2017, Copehnagen

2 BALANCING PUBLIC INTERESTS Usually takes place within the permitting procedure of the plan or a project which may affect a Natura 2000 site or protected species Does it also take part elsewhere, even at early phase of lawmaking? Probably yes - as the legislator tries to cope with the stringent conditions of the EU Directives and at the same time keep a suitable conditions for the investors. Analysis of case law and information from various stakeholders is very important

3 Hendrik Schoukens, An Cliquet Mitigation and Compensation under EU Nature Conservation Law in the Flemish Region: Beyond the Deadlock for Development Projects? (Utrecht Law Review, Volume 10, Issue 2, 2014) Dissatisfied with the alleged rigidity of EU nature conservation law, project developers and planning authorities sought new ways to reconcile nature conservation with their more economically inspired spatial interests. Enter the more flexible reading of EU nature conservation law, which puts more emphasis on the possible positive outcomes for biodiversity that can be linked to infrastructure projects by providing the necessary mitigation and compensatory measures. Overall, it was hoped that a wider application of mitigation measures in the context of planning applications might allow a more balanced approach of the alleged strict requirements included in EU nature conservation law.

4 SITUATION IN CZECHIA Traditional system of biodiversity protection - specific territorial protection and protection of endangered species. Some instruments from the 19 th century, consolidated in Public participation in environmental matters originally based on rules of nature and landscape protection. One of the most advanced systems of environmental monitoring which contributes to effective protection. NATURA 2000 protection was transposed into this system in 2004 by copy paste.

5 Traditional large-scale and small-scale protected areas

6 Significant landscape elements protected ex lege

7 Registered significant landscape elements

8 Natural parks (landscape protection)

9 Territorial system of ecological stability

10 Natura 2000 sites

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12 SITUATION IN CZECHIA NATURA 2000 sites do not fully correspond to the traditional protection. The investors and the politicians rarely distinguish among various levels of environmental protection. As a result, protection of nature is conceived as one single category a threat to the project. Except the areas where any construction is excluded, a common denominator applies the most stringent protective criterium serves as a starting point for political discussion.

13 EXCEPTIONS FROM PROTECTION TRADITIONAL SYSTEM SIGNIFICANT LANDSCAPE ELEMENT Consent of the authority MEMORABLE TREES Overriding public interest Protection of nature PROTECTED SITES Overriding public interest, Interests of nature conservation, Licensed activity does not significantly affect the site. ENDANGERED SPECIES Overriding public interest: a) Protection of environment; b) Prevention of a serious damage; c) Public health or public security, social and economic interests; d) Research and education; e) Re-population, re-introduction, breeding and cultivation.

14 TRADITIONAL SYSTEM ENDANGERED SPECIES Overriding public interest: Protection of environment, Prevention of serious damage, Public health or public security, social and economic interests, Research and education, Re-population, re-introduction, breeding and cultivation. PROTECTED SITES Overriding public interest Interests of nature conservation Licensed activity does not significantly affect the site EU SYSTEM SPECIFIC PROTECTION OF BIRDS No other satisfactory solution Overriding public interest (similar list) ENDANGERED SPECIES No satisfactory alternative Overriding public interest (similar list) Reports to the Commission PROTECTED SITES Absence of alternative solutions Imperative reasons of overriding public interest, including those of a social or economic nature Compensatory measures

15 TRADITIONAL SYSTÉM ENDANGERED SPECIES Overriding public interest: Protection of environment, Prevention of serious damage, Public health or public security, social and economic interests, Research and education, Re-population, re-introduction, breeding and cultivation. PROTECTED SITES Overriding public interest Interests of nature conservation Licensed activity does not significantly affect the site EU SYSTEM SPECIFIC PROTECTION OF BIRDS No other satisfactory solution Overriding public interest (similar list), Reports to the Commission ENDANGERED SPECIES No satisfactory alternative Overriding public interest (similar list) Reports to the Commission PROTECTED SITES Absence of alternative solutions Imperative reasons of overriding public interest, including those of a social or economic nature Compensatory measures

16 IS THE OVERRIDING PUBLIC INTEREST THE MOST STRINGENT CONDITION? Czech courts interpret the term in compliance with the case law of the Court of Justice (cca 50 cases) Principles: Ad hoc assessment, long-term interests, burden of proof on the investor Activities more likely to be granted permission: Infrastrucructure development, flood protection Grey zone: Wind power plants, mine operation No success: Individual housing, individual land adjustments No applicants are constantly more successful in getting exceptions. Conclusion: Condition of the overriding public interest is the same in both the traditional and the EU system

17 IS THE OVERRIDING PUBLIC INTEREST THE MOST STRINGENT CONDITION? There have been some attempts to overcome this condition. A specific act was adopted and stated that works on some waterways are always considered public interest. Abolished by the Czech Constitutional court (judgment of , Pl.ÚS 24/04)

18 TRADITIONAL SYSTÉM ENDANGERED SPECIES Overriding public interest: Protection of environment, Prevention of serious damage, Public health or public security, social and economic interests, Research and education, Re-population, re-introduction, breeding and cultivation. PROTECTED SITES Overriding public interest Interests of nature conservation Licensed activity does not significantly affect the site EU SYSTEM SPECIFIC PROTECTION OF BIRDS No other satisfactory solution Overriding public interest (similar list), Reports to the Commission ENDANGERED SPECIES No satisfactory alternative Overriding public interest (similar list) Reports to the Commission PROTECTED SITES Absence of alternative solutions Imperative reasons of overriding public interest, including those of a social or economic nature Compensatory measures

19 CONDITION OF SATISFACTORY ALTERNATIVE SOLUTION Suddenly rendered many large projects much more difficult to plan and pass through the permitting procedures. Overriding public interest alone was no longer a safe harbour for the investors and planning authorities. Further problems exeptions based on different standards are not compatible

20 BALANCING THE INTERESTS Wave of resistance against protection of nature, fuelled by the politicians and construction lobby. Representatives of the industry have been appointed as the heads of the Environmental Inspection and the Ministry of the Environment which is supposed to merge with the Ministry of Agriculture having the same object and agenda. GOALS? 1) to avoid some sites to be introduced to the NATURA list, 2) to weaken the traditional protection which is not based on the EU rules.

21 BALANCING THE INTERESTS Attempts to completely reconsider the position of the national parks and open them to the logging industry. Many amendments have been adopted, restricting public participation and fragmenting the system of protection. Corresponding procedures (EIA) have been amended despite previous infringements. Exceptions from the protection of the endangered species are very often subsumed under the CITES regime. The lists of protected species have not been updated for years, partially from the fear that the existing level of protection would be lowered.

22 BALANCING THE INTERESTS The official authorities and the courts must deal with constantly changing legal regulation and pressure from the investors. The NGOs are blamed for the incompetence of the official authorities and intimidated in the media. Arguments and complaints against the projects are often ignored.

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24 D49 Highway postponed, activists bet on hamster

25 Lets lock the activists in their own reservation

26 Green terrorists and eco-swindlers

27 CONCLUSIONS & SUGGESTIONS The EU directives on biodiversity should strengthen the level of protection in the member cases. However, this is not always the case, or at least, it is not that simple. Czechia is currently losing part of the traditional system of natural protection. Is there any help? A general rule of alternative solution should became a part of the interpretation of the overriding public interest condition.

28 CONCLUSIONS & SUGGESTIONS Is there any help the EU may offer? The national courts should be provided proper guidance on the case law of the Court of Justice. It should be available in national languages and regularly updated (newsletters?) EU legal regulation should be more inter-linked: EIA x NATURA 2000 and CITES x NATURA Strict conditions and control of the subsidies. Based on the principle of the high level of protection, a general rule of alternative solution should be introduced in the general protection of biodiversity (or environment in general)

29 THANK YOU FOR YOUR ATTENTION!