In a recent decision (file no. ÚS 44/18), the full court of the Czech Constitutional Court rejected a request from Ostrava Regional Court to repeal section 23a of Act no. 100/2001 Coll., on Environmental Impact Assessments and the Amendment of Related Laws, as amended, by Act no. 256/2016 Coll. The full court held that the disputed provision was constitutional.
Ostrava Regional Court had sought a repeal of the mentioned provision when hearing a claim brought by the organisation Children of the Earth against the Ministry of Transport, which allowed the construction of the Frýdek-Místek Road R48 bypass. Among other things, the claim challenges binding environmental impact assessments made by the state ministries of the interior, health and the environment. The claimant argued that section 23a of the Environmental Impact Assessment Act was unconstitutional and the Regional Court believed that its arguments were reasonable. In its application, the Regional Court especially highlights the non-universality of the contested provision, which only applies to nine preselected transport projects. Other concerns include the unconstitutional exclusion of the public (including, for example, environmental organisations) from the environmental impact assessment process and the unconstitutional lack of judicial review.
The now controversial section 23a was inserted into the Environmental Impact Assessment Act under Act no. 256/2016 Coll., which sets out a separate “track” for the environmental impact assessment of high-priority transport projects. This is quite different from the “traditional” process. Relevant transport projects covered by the Trans-European Transport Network are exempted from Article II (1) of Act no. 39/2015 Coll., i.e. from the duty to obtain a confirming binding opinion and repeat environmental impact assessments. As far as these “priority” projects are concerned, only the Ministry of the Environment has the power to issue a binding environmental impact statement. Project operators, thus, sidestep the preceding stages of the administrative process detailed in sections 6 to 9 of the Environmental Impact Assessment Act (project announcement, investigation, document presentation, collection of expert opinions, feedback from the public, stakeholders, concerned agencies, municipalities and regions, public hearings, etc.).
The Constitutional Court found that section 23a of the Environmental Impact Assessment Act was sufficiently universal because it did not violate the principle of separation of powers and did not interfere with executive or judicial powers. The legislation defines three general conditions: the project must fall within the auspices of the Trans-European Transport Network; a zoning permit must have been granted by 31 March 2015; and a favourable binding opinion on the project’s environmental impact (Environmental Impact Assessment (EIA)) must have been granted under the earlier Act no. 244/1992 Coll., on Environmental Impact Assessments (the statute was abolished by Act no. 93/2004 Coll., on 1 May 2004). A fourth condition – inclusion as a high-priority transport project in an executive order – was left to be decided by the highest executive body. It is therefore up to executive agencies to independently assess whether all four conditions have been met for a particular transport project. The disputed provision does not stipulate that a certain undertaking should be seen as a high-priority transport project in the future. As such, it cannot be said that the contested legislation contains elements of an administrative decision rather than a general regulation or that it replaces decision-making that should have been left to administrative agencies. To the contrary, the provision in question set a genuine legal standard. The Constitutional Court therefore does not believe the Regional Court’s analogy with earlier Constitutional Court judgments (file no. Pl. ÚS 24/04 (Elbe weirs) and file no. Pl. ÚS 24/08 (Prague-Ruzyně runway)) is appropriate.
The objective of the disputed law is to speed up (or at least not slow down) the construction of high-priority transport projects, all of which had long been in the final preparation phase when the law was passed. The special process foreseen by the statute means that the entire standard EIA procedure need not be repeated for these high-priority projects. Without repeating the preceding phases and without active public participation, it is possible to “only” obtain a binding EIA opinion for a high-priority project. This will then serve as the basis for the administrative proceedings and related processes (especially building planning proceedings) in which the public may participate and exercise its rights, including in contesting the content of the binding EIA opinion itself.
Members of the public also retain the right to legally challenge administrative decisions and measures, and when hearing such claims, courts may examine the legality of the underlying binding EIA opinion for each high-priority project. Having applied this test of reasonableness to the contested provision, the Constitutional Court concluded that section 23a of the Environmental Impact Assessment Act reasonably limits the public’s right to take part in the EIA process for high-priority transport projects. Nevertheless, there are a wide range of opportunities for stakeholders, including the general public, to join in subsequent and related proceedings concerning the environmental impact of prioritised transport projects.