First permit process in environmental courts
Issue of legislation
New act and permit
Since Summer 2021, the events surrounding Sweden's major cement supplier (Cementa) and its permit for quarrying limestone on the island of Gotland have been the subject of large media attention and public debate. The company applied for a continued and extended mining permit in December 2017, which was granted by the Land and Environment Court in January 2021. The matter was appealed and the earlier judgment was reversed; the application was rejected by the Land and Environment Court of Appeal in July 2021. The reason for the rejection was that, according to the court, the company's environmental impact assessment was so deficient that it could not be the basis for a determination of the environmental impact of the operations. The period of validity for the existing permit ended on 31 October 2021, thereby putting an immediate stop to future quarrying and jeopardising Sweden's entire cement production.
First permit process in environmental courts
The limestone from the Gotland mine supplies 75% of Sweden's cement usage. Ceased production would therefore result in major negative consequences for both private and public interests, especially regarding infrastructure projects and the building sector. To avoid an immediate crisis regarding the access to cement, the government quickly (in August 2021) presented a bill proposing changes to the Environmental Code. In short, the bill suggested giving the government an autonomous right to, at first instance, try an application for a time-limited permit to quarry limestone. The regulation was proposed as limited to the amount of quarrying that was covered by the existing permit, with the original permit hindered from delivering the agreed quantity prescribed due to a time limit. An existing permit should thus be possible to extend in time, but not quantity. Further, the extension should be possible only for operations necessary to meeting an urgent public interest when the need cannot be met in any other satisfactory way, from a public point of view.
The bill intended to make the government competent to consider all relevant applications for the continuation of operations (ie, environmentally hazardous activities and water operations as well as Natura 2000 permits and exemptions from the regulations governing the protection of species). Thus, it was orchestrated so that the company in question could quarry the remaining limestone from the earlier permit even after its termination, which, according to reports, should mean continued operations for approximately eight months.
The Council on Legislation, a part of the of the Supreme Court that reviews government bills before they are submitted to Parliament, rejected the proposal in mid-September 2021. According to the Council on Legislation, the way that the matter had been handled was in breach of the requirements in the Constitution regarding consultation. The consultation bodies must be given the time needed to analyse the matter and write a well-established consultation response. In this case, the time given was no more than a few days, which, according to the Council on Legislation, was "extremely short" and even when considering the matter's urgency, it was "not acceptable". The bill was also criticised for being applicable in only one individual case and intended to correct the outcome of a single court case, which, according to the Council of Legislation, puts the public's confidence in the judiciary at risk. The law may thus be contrary to the constitutionally protected right that laws should be generally formulated and applicable to all.
Despite the criticism, the government chose to move forward with the bill, which passed through Parliament on 29 September 2021. The extraordinary situation considering the potential consequences coming from a cement crisis seems to have led to the conclusion that the end, in this case, justifies the means.
On 18 November, the government decided to grant the company permission for continued mining operations at the mines on Gotland. The permit covers the volume of limestone which, at the time of application, was covered by a valid permit, but the mining of which could not be completed due to the time limit in the permit. The permit will take effect as soon as it is claimed by Cementa and it is valid until 31 December 2022.
A permit granted by the government can be appealed and subjected to judicial review by the Supreme Administrative Court, which could offer an opportunity for the legal issues discussed to be analysed. However, judicial review is a cassation proceeding where the legal question concerns only whether a decision made by the government is unlawful or not.
The Supreme Administrative Court has received an application from an environmental organisation for judicial review of the government's decision. The organisation has demanded that the government's decision be revoked and that it should not apply for the time being. The organisation has also demanded that the Court obtain a preliminary ruling from the European Court of Justice. The Court will now begin processing the case.
The Cementa case highlights the need for a well-functioning process concerning permit matters. The long processing time and the short period between the ruling and the ending of the existing permit is unfortunate. However, the problems with the process of permit matters is not an isolated incident. Slow and complicated permit processes are a general problem for many businesses, including businesses with a potential to contribute to the development of green technology and the reduction of carbon dioxide emissions. More resources for courts and authorities, together with changes in the permit process to increase efficiency and foreseeability, should be considered of great importance to prevent a similar situation as the one in the Cementa case arising again, and to make sure that Sweden's contribution to the green transition works in a suitable way. The case also highlights the importance of constitutionally protected rights from an environmental law perspective, and how different rights may come into conflict with each other despite the "good purposes" that the legislature may have.
For further information on this topic please contact Matilda Hellström or Olle Jonsson at Advokatfirman Lindahl by telephone (+46 40 664 66 50) or email ([email protected] or [email protected]). The Advokatfirman Lindahl website can be accessed at www.lindahl.se.