Prepared by Alexander Kodjabashev, lawyer,
Center for Environmental Law

Analysis layout:

The analysis aims at outlining the factual and legal context in which the ruling of the Supreme Administrative Court (SAC) was made. We are of the opinion that there were at least two major violations of Bulgarian legislation that SAC refused to sanction. As a result the ruling is against the letter and the spirit of the laws that guarantee the right to the affected public to participate in the decision-making concerning the environment.

The analysis will outline these violations showing: first, the complaints of the citizens; second, it will repeat those of the motives of the judgment where the judge expressed their opinion on the complaints; finally a brief commentary will be made on the judgment and the mistake made by the judges.

1. The first reason for repeal of the ruling is the argument that a new procedure for Environmental Impact Assessment (EIA), provided in the Environmental Protection Act (EPA) from 2002 (State Gazette, issue 91/2002), had to be applied as far as the appealed decision was concerned.

The SAC ruled that to the procedure in question the old environmental protection law from 1991 should be applied. There are two contradictory points in the motives of the SAC. On the one hand the motives of the SAC contain the finding that the procedure for the making and assessing of the report was finished while the old law from 1991 was in force (page 2, lines 7-8, from the bottom). A couple of lines further (page 3, line 2) there is the mention that the procedure was finished under the new environmental protection law from 2002 and it was not in an intermediate stage.

We are convinced that the question of which law is to be applied to the procedure for evaluation of the effect on the environment is crucial. This issue could be addressed if we knew when the EIA procedure ends. If the EIA procedure ends with issuing of the final Decision on EIA, which is the authentic interpretation of SAC, then we have to assume that by 28.09.2002 the procedure was not closed. Therefore the Minister of Environment and Waters should have fulfilled her legal obligation under the new law from 2002 and evaluated the EIA report in obligation with article 97, paragraph 1 from the EPA, and then she should have start public discussions of the EIA report (cf. the presentation of the facts concerning the EIA procedure, item 6)

2. The second reason for the repeal of the ruling is the argument that by applying the old procedure of the Environmental Protection Act from 1991, the Ministry of Environment and Waters (MoEW) should have subjected the revised EIA report, tabled in MoEW in August 2002, to a public discussion. Since this was not the case the MoEW flagrantly violated the Environmental Protection Act form 1991.

Unfortunately we have to point out that the arguments of the SAC in this case are totally against the European practice. The arguments of the SAC are totally against the spirit of the EIA procedure in Europe as well as in Bulgaria. Nowhere, in the juridical practice in Europe, is acceptable one document (an EIA report or, for instance, the report within the so-called "enquete publique" in France) to be subject to a public discussion, and then the final decision to be made on the basis of another document with different content. The logic used by the SAC that the lack of a regulation on the public discussion of a revised EIA report should be interpreted to the advantage of the investor and the administrative body is against the law. The revised EIA report certainly is a new document and it follows quite logically that the public should be familiarized with it. Furthermore the new revised EIA report made totally contrary conclusions regarding the future alignment of the Ljulin Motorway. ( cf. presentation of facts items 2 and 5).

We believe that the violation of the EIA procedure is the most flagrant one made by the administrative body. The failure of the court to sanction this gross violation of the administrative body is the grossest breach of the spirit of Bulgarian legislation.

3. The third argument for the repeal of the EIA's decision is that the decision lacks motives. The requirement for motivation of the decision is explicitly stated in Bulgarian law.

The Supreme Court of Appeal responds with the following statement on the third argument for repeal of the ruling:"… the complaints in the appeal are groundless. The ruling is thoroughly motivated by the EIA report and the prescribed conditions for the design, construction and operation of the project, which represent the factual grounds for the judgement. …the Environmental Protection Act does not stipulate a requirement for the kind of motives which, in compliance with Interpretation decision N 16/1975 may be present in a different document as well as be presented additionally. In this case the ruling in question is motivated by the EIA report made by independent experts, whose conclusions as well as the decision of Supreme Environmental Expert Council of the MoEW are the documents containing the motives for the final ruling about the implementation of the investment project".

The stand of the SAC concerning the third argument for repeal of the ruling is the second gross violation of the letter and spirit of the law. The facts are clear: the administrative body issued an administrative act - decision. This decision has no motives but the court rules that one document prepared by people who are not subordinated to the administrative body, such as the EIA experts, may be taken to be the motives for the decision. Moreover, the decision of the Minister of Environment and Waters does not contain a statement in this sense.

This stand of the SAC is scandalous because it exonerated form responsibility the administrative body. This stand of The Supreme Court of Appeal makes us ask some additional questions:

1. What is the logic, without the explicit statement of The Minister of Environment and Waters that the SAC follows to rule that the findings and conclusions of the EIA report are the motives for the ruling?
2. What is the logic that SAC follows to dispense the administrative body from its responsibility to state its own motives in the decision?
3. What is the lawful and worldly logic that EIA experts, paid by the investor, follow to formulate the motives of the decision of the administrative body?
4. Can we speak of equality in the EIA procedure at all, when EIA experts, paid by the investor, formulate the motives of the decision of the administrative body?

These questions contain the answer in themselves: the stand of the SAC concerning our third argument is not reasonable with the normal worldly logic where the parties of the administrative process should be put on an equal basis. We should focus our attention on another crucial moment: the EIA report assessed only the recognized as suitable "blue plus brown" variant. That is, the EIA report contains arguments only for one of the alternatives for the construction of the motorway. Therefore, the EIA report may not be a basis for motives for the ministerial decision. The administrative body's decision should have taken up a position on the question: What is the correlation between the alternatives for the construction of Lulin Motorway? If this is the case, the motives in the EIA report cannot be at the same time motives for decision and we would have to presume that there are shortcomings in the procedure.

Presentation of the facts concerning the EIA procedure for Lulin Motorway

1. The EIA procedure Lulin Motorway was opened in 2001. At that moment and by September 2002 the Environmental Protection Act from 1991 was in force as well as regulation N 4/1998 on EIA, a by-law normative act, further specifying some of the regulations of the EPA from 1991.

2. In July 2001 an EIA report was made. This report recommended the "orange" alternative for permanent way of the construction of the motorway.

3. On 16 July 2001 a procedure for a public discussion of the EIA report was opened and on 16 September and 17 September 2001 public discussions were held in the areas of Malo Buchino, Pernik and Goliamo Buchino.

4. On 6 December 2001 the Minister of Environment and Waters stated her opinion on the EIA report from July 2001. With decision N 74-18/06.12.2001 the Minister returned for revision the EIA report. The motives for decision N 74-18/06.12.2001 were that the route alternatives are not investigated or assessed equally and the report was of poor quality and did not meet with its content the operating regulations.

5. In August 2002 the investor tables in the MoEW the revised EIA report. There was a totally different statement in concerning the motorway. This report stated that the least effect on the environment would be the so-called "blue plus brown" alternative. This variant was recommended for the construction of the motorway. This EIA report was never subject to a public discussion.

6. In September 2002 a new environmental protection act was published and came in force. This law cancelled the one from 1991. It became operational on 28 September 2002. Paragraph 3 from the temporary and final provisions from the Environmental Protection Act states that the 2002 law cancels the one from 1991 and paragraph 5 from the temporary and final provisions from the 2002 law states that "the by-law normative acts issued on the basis of the cancelled environmental protection act are to be applied until the issuing of new by-law normative acts as long as they are not against the law." The interpretation of these two norms means that after 28 September 2002 when the new law came in force, the provisions of the Environmental Protection Act from 1991 will not be in operation but the provisions and bylaw acts, issued for application of the 1991 law, will be applied, provided they are not against the law.

The differences between the EIA procedures from the EPA-1991 and EPA-2002 are along directions:

1. The EPA from 1991 does not allow for the so-called "scoping" of the report. The 2002 law introduces scoping of the EIA report (article 95, paragraph 2).
2. The 2002 law introduce an additional assessment of the EIA report - when the EIA report is ready and tabled in the MoEW, the Minister makes an assessment of the quality of the report in accordance with the already carried out scoping and on the compatibility with the EIA regulations (article 96, paragraph 6, EPA from 2002). There is no obligation for such an assessment in the EPA-1991.
3. The EPA-2002 stipulates rules for holding a public discussion on the EIA report, while the rules for holding public discussions according to EPA-1991 are included in the by-law regulation (No 4/1998).
4. The EPA-1991 introduces the terms "preliminary report" and "final report". In accordance with the 1991 law in cases where there has been a public discussion of a preliminary EIA report, there is no need for a public discussion of the final report. The EPA-2002 does not define EIA reports according to the specified way and thus all reports should be subject to a public discussion.

7. In October 2002 the Minister of Environment and Waters announced decision N 32-15/11.10.2002. This decision allowed the construction of Lulin Motorway following the so-called "blue plus brown" alternative. This decision was appealed to the SAC. A legal procedure was opened and the case was closed with ruling N 151/12.01.2004

8. In June 2003 the Minister of Environment and Waters opened a new EIA procedure for Ljulin Motorway project. The motives for the opening of a new procedure were not clearly stated. The new procedure was most likely opened to meet "post factum" the requirement for a public discussion of the EIA report from August 2002. In July 2003 the investor, Roads Executive Agency (REA) held consultations with representatives of the local municipalities and the affected public, the so-called "scoping" in accordance with article 95, paragraph 2 from the EPA-2002. In August 2003 the EIA report for Ljulin Motorway was tabled in the MoEW. In October 2003 there were held public discussions on EIA report.

9. On 21 November 2003 the SAC held a session over administrative case 8839/2003 that was the last session before the final ruling on the appeal from October 2002. In this session the representative of REA stated that the EIA procedure that started in June 2003 was concerned only with the zero alternative for the motorway i.e. the permanent way of the motorway to go through Knjagevo ( cf minutes of the proceedings of SAC on 21 November 2003)

10. On 12 January 2004 SAC came out with ruling N 151/ 12.01.2004

11. After the publication of ruling 151/12.01.2004 on administrative case 8839/2003 of SAC, the Minister of Environment and Waters refused to make a comment (by issuing positive or negative Decision) on the EIA procedure form June 2003. The motive of the Minister of Environment and Waters was that the SAC came out with the final ruling.