Is Compensation, Conservation?
Or, what to do with an illegal road that’s already built.
In a recent preliminary reference procedure (where a national court asks the Court of Justice for an interpretation on EU law and/or its application in the national legal order), the Court of Justice has given a very strict reading of article 6(3) of the Habitat Directive.
The Habitat Directive is, together with the Birds Directive, the basis for the environmental conservation programme called Natura 2000. The idea behind Natura 2000 is the creation of one large, continuous habitat by linking Special Areas of Conservation (SACs). It is, however, far from the achievement of that idea.
Still, under the Habitats Directive, member states are obliged to create these SACs when certain conditions are met. In the Netherlands, 2 of these SACs are very near to one of the larger highways in the country. The A2 highway is currently in the planning stages for widening. Under the Habitats Directive, it is necessary for the governing institutions to evaluate if plans such as the widening of the A2 have a detrimental effect on any nearby Special Areas of Conservation. If this is the case, than the governing institutions are required to halt the project or make the necessary changes to stop these effect from occurring. There are two possible exceptions to that rule. Those are stated in Article 6 of the Directive, specifically in paragraphs 3 and 4.
Article 6
1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.
The plans to widen the A2 highway have been examined, and after a number of tests the conclusion was that the added NO2 in the atmosphere and the effects on the soil would lead to irreparable damage to the SAC in the vicinity which were created for the preservation of a specific type of meadow and the flora that it sustains.
The Dutch government has stated that as there was a project near one of the SACs that would extend it and create an area that was larger than the one being damaged by the widening, it could still go ahead with the scheme. It took this decision on the basis of the Dutch implementation of the Habitats Directive. The idea behind this line of reasoning is the fact that the government is compensating for the damage.
The opponents to this decision state that under 6(3) of the Directive, there is no mention of the possibility of this compensation. There is only the obligation to conserve the SAC. The Dutch government has effectively made use of the derogation offered in 6(4) of the Habitats Directive, without adhering to the stricter regime laid down therein. It has done so by coining the phrase ‘mitigating circumstances’ which seems to be related to the ‘compensatory measures’ mentioned in 6(4) of the Directive, but has no actual equivalent said Directive.
In its answer to the reference of the Raad van State, the highest Dutch Administrative court, the CJEU has given a strict interpretation of the Habitat Directive on these points. It is the duty of the Member State to conserve the integrity of the SAC. That conservation entails the safekeeping of the specific elements of the area that create the conditions of it being a SAC. In the case of the widening of the A2, it is clear that the environmental damage will harm these elements.
What is especially interesting is the weight that the Court lends to the precautionary principle. The creation of, in essence, a new area of nature is not the same as the preservation of the original area, nor is it clear if the project with the aim of creating such a new area will be successful. Even in the best circumstances, this can only be evaluated after a decade, in which time the area for which is compensated is possibly damaged beyond repair. (See paragraphs 32 and 33 of the judgment)
The Court rightly remarks that it is not possible to derogate further from the Directive than under the circumstances provided for in Article 6(4), as this would damage the consistency and integrity of the Natura 2000 project.
Although this may seem as a great step for the protection of fragile and unique environments, it is actually nothing more than a small hurdle for a Member State. Under 6(4) it is still possible to initiate projects such as the one under scrutiny in this case. Only there are stringent demands on the Member State to motivate and compensate. However, that motivation on what constitutes overriding public interest of social or economic nature falls within the margin of discretion of the Member State. As such, this judgment is a further step towards the proceduralisation of environmental rights. A citizen has the right to start a procedure, however in most cases a court will not be legally able to go into the motivation of the authority behind the decision being reviewed. In the case of the A2, the Dutch government will initiate a new procedure, in which it will state that it is absolutely necessary to have a wider highway. Although there have been studies on the nature of the Dutch load on the highway network, illustrating that the pressure is only marginal on very exact moments, that will not be something a Dutch judge could actually use in evaluating the procedure. In these cases, trias politica hinders the effectuation of rights, as what should actually be under scrutiny is the quality of the decision making process, not the process itself.
