The Turkish Grand National Assembly introduced the Environmental Impact Assessment Regulation (“EIA Regulation”) to the Turkish environmental legislation in 1993, the legislation has not fallen into place yet and is still subject to change almost on an annual basis, which remains the major problem in maintaining a balance between the need to protect the environment and ensure stability for the interests of investors.
According to the current EIA Regulation, neither of the specific PPP models is subject to special additional criteria for environmental impact assessments. So each specific PPP project still falls within the scope of the EIA Regulation, depending on the type and capacity of the project and of the facilities within the project area. Examples of projects that are within the scope of the EIA Regulation include hydroelectric power plants, petroleum pipelines, ports, airports and highways. Once it is determined that a project is within the scope of the EIA Regulation, investors cannot begin the construction until they either prepare an EIA Report and obtain a “positive” EIA Decision, or pass through certain evaluations and obtain a “not required” EIA Decision, depending on the project type. However, obtaining either EIA decision does not mean that the project will avoid future change in legislation or change in project. For example, if there is an increase in capacity or a change in the project, the relevant administrative bodies must be informed in order to evaluate the validity of the previous EIA decision.
Obtaining an EIA Decision may not always be a permanent relief. EIA Decisions constitute an “administrative act,” and as such, individuals and legal entities can challenge EIA Decisions if they have a “sufficient interest” in the decision. Turkish courts define “sufficient interest” broadly enough to sometimes include non-governmental organizations, even though these organizations are not directly involved in the project. According to another significant amendment introduced to the Code of Administrative Procedure on 18 June 2014, cancellation lawsuits initiated by third parties having legal standing, are subject to an expeditious procedure. As a consequence of this expeditious procedure, the lapse in time from initiation to cancellation of these cancellation lawsuits has dropped from sixty days to thirty days. The defendant in these lawsuits is the administrative body, generally the governorship who issued the EIA Decision. The investor company can only appear as an intervening party to the case. Within seven days, the administrative court must start its first evaluations of the file and notify the lawsuit petition to the related parties. The response petition must be submitted within fifteen days upon the notification of the lawsuit petition. Another significant amendment introduced with the expeditious procedure is that decisions of the court regarding a stay of execution are final and the parties cannot object to such decisions. Additionally, the other procedural steps must be made quickly and the administrative court must render its decision within thirty days following the end of all evidentiary review. Finally, the Danıştay must evaluate claims on appeal within two months and notify the parties of its decision within one month. Currently, the administrative courts and the Danıştay are trying to comply with these provisions. However, taking into consideration their heavy workload, some slight deviations should not be surprising until the expeditious procedure truly comes online. Considering all the amendments brought with the expeditious procedure, Turkey tries to prevent any delay in EIA related investments by shortening the dispute phases as far as possible and ensuring achievement of a quicker solution by the investors.
Legal and environmental advice prior to PPP investment has an important role in protecting both the investment and the environment. We hope that the negative effects of stay of execution decisions will be minimized thanks to the expeditious procedure enacted to prevent long-term cancellation lawsuits. With stable environmental legislation hopefully being completely integrated in the near future, the sensitive and desired balance between the protection of the nature and the performance of investments can finally be more than a dream.