On 14 June 2022, miljöprövningsutredningen [the environmental assessment study] submitted its final report entitled “Om prövning och omprövning – en del av den gröna omställningen” [On assessment and review – part of the green transition], SOU 2022:23, to the Government. The report presents a large number of proposals aimed at making the processes for environmental assessments at the review authorities more efficient. The business community has been highly critical of it. In this article, we go through the key aspects of the proposals contained in the study and look at the business community’s criticism in more detail.
In August 2020, the Government entrusted a researcher with the task of reviewing the current system for environmental assessment and putting forward proposals for actions required to modernise the system and make it more efficient. In particular, the aim is to facilitate and accelerate the work on investments to improve the environment and the climate without weakening current environmental protection. More than 30 proposals are put forward, aimed at making the system more efficient, including a target of a maximum processing period of one year from the date of submission of the application at first instance.
THE PROPOSALS PUT FORWARD IN THE STUDY
The completion swamp must be drained
One fundamental problem in the current system which is highlighted by the study is the fact that operators find it difficult to know what an application must contain, which often means that the processes are characterised by several completion phases, referred to in the study as the “completion swamp”. Most of the proposals are put forward with the aim of providing clearer information to operators on what an application must contain and when an application is complete. An active dialogue must also be instigated between the parties as early as during the consultation phase.
It is proposed that the county administrative boards should play a greater role as the active state voice in the consultation in order to achieve clearer, more extensive guidance. Other state agencies with a role as a party will be required to assist the county administrative boards on request. The role of the Legal, Financial and Administrative Services Agency as a party is taken over by the Swedish Agency for Marine and Water Management. It is clarified that the verbal preparation should take place in the initial part of the process to make it easier to focus on the essential environmental effects of the intended permit and activities. It is also a proposal that it should be more difficult for operators to request a grace period and easier for the review authorities to reject an application that is incomplete.
Proposal for amendment permits as the main rule
Under the current provision on amendment permits, a suitability assessment must be carried out in order to judge whether or not an amendment to a permit can be assessed in isolation. Only then is the amendment itself assessed. According to the proposal put forward in the study, an amendment permit should be the main rule if the operator does not apply for a permit for its entire activity. The provision becomes mandatory and the review authority must immediately decide how the assessment of the amendment can be delimited so there is sufficient supporting data for a decision in order for an environmental assessment to take place. It must not be possible for the review authority to take the opportunity within the process to add on additional requirements in an assessment of an amendment permit and thereby make the process more burdensome. Furthermore, it clarifies where the boundary for permit and notification obligations lies in the case of an amendment permit and in which cases an amendment permit is not required, where the amendment falls within the legal force of the permit.
Besides the proposal that amendment permits should become the main rule, there is also a proposal that it should be made easier to change the terms or provisions of the permit. The criteria of obviousness regarding whether the condition is no longer required or is stricter than necessary is removed. It must be possible for an amendment to take place even if it is caused by circumstances that were foreseen in the original permit assessment.
A distortion of competition may occur if progressive operators working on climate adaptation of their activities through an amendment permit or a new permit compete with operators carrying out activities without investments to improve the environment or the climate. The researcher therefore proposes that operators carrying out environmentally hazardous activities requiring a permit who hold a permit that is not subject to time restrictions should be subject to a requirement to ensure that the activity is being carried out in modern environmental conditions. “Modern environmental conditions” mean that the conditions or provisions of the permit for protecting human health or the environment must have been determined by a judgment or decision that is no more than 40 years old, which means the introduction of a regular review of the conditions and provisions of permits.
Extension of validity – “Lex Cementa”
The study puts forward a proposal inspired by the Cementa case, which attracted a great deal of attention. Businesses with permits subject to time limits will be able to extend the permit for a maximum of three years under the same conditions without a new environmental impact assessment (EIA), pending the completion of a new permit application. A suitability assessment must be carried out to assess primarily whether the permit subject to a time limit initially had a clearly-defined time limit due to the conditions of the site and the business. The extension of validity can only be granted once and serves as a bridge until an assessment for a new permit has taken place.
Improvements in skills and resources
One major challenge in paving the way for investments to improve the environment and the climate is the parties’ lack of expertise in environmental assessments. It is therefore proposed that a climate group be established with the task of providing all county administrative boards with support on climate issues in environmental assessments. In addition, it is proposed that the Swedish Energy Agency and the Swedish Environmental Protection Agency support the review authorities and create a knowledge centre for technology benefiting the climate. The authorities must also be able to offer competitive employment conditions in order to compete with private operators in the labour market. The proposals require greater resources for the authorities concerned.
Other proposals to trim the assessment process
In order to make environmental assessment more efficient, the researcher proposes that the national interests be clarified and taken into consideration at an earlier stage of the process. The Government’s admissibility assessment should also only take place before a decision has been made/a judgment has been handed down at first instance. If the Government’s admissibility assessment takes place before a higher court, it becomes a review of the lower court’s decision/judgment, which is not its purpose. Authorities with a role as a party are given the task of notifying the Government in cases where an admissibility assessment is required. There are many indications that the Government will set up a special enquiry into the issue of admissibility assessments.
According to the proposals, it should be easier to decide on cases on the basis of the documents instead of holding a main hearing in cases where such is considered appropriate. The aim is also to digitalise the application and environmental assessment process in order to minimise administrative work.
PROPOSALS THAT THE STUDY DOES NOT TAKE ANY FURTHER
A proposal that all permits issued should be subject to time restrictions was also examined. During the consultations, the proposal faced harsh criticism from the business community, which felt that it would place severe restraints on the willingness to invest, and it was not taken any further. The study also considered that it would be inappropriate to further consider proposals regarding priority in the environmental assessment process for operators carrying out environmentally beneficial activities. The proposal was considered to give rise to additional time-consuming processes in the form of priority assessments and was therefore also not taken any further.
The proposals aim to create a more sustainable, efficient system, without weakening environmental protection. Given the large number of proposals put forward, it is difficult to assess in advance what impact the proposals would have if they resulted in legislation. The proposals consist of a revision of existing legal provisions and to some extent optimise processes in environmental assessment, particularly at first instance. Since it is not uncommon for decisions or judgments at first instance to be appealed, the proposals risk having a smaller impact than intended.
The business community criticises the proposals put forward in the study and considers them to be largely a disappointment. It is also considered that there is a need for fundamental reform of the Environmental Code and its assessment system. The proposals do not sufficiently optimise the system and, according to the business community, certain proposals are simply counterproductive, in particular the proposal to reconsider older permits after 40 years. This latter proposal creates uncertainty for the operators and may place restraints on the willingness to invest. The business community considers that the value of economic growth and industrial development needs to be given greater space in the processes, though naturally with as little environmental impact as possible, if it is to be possible for the system to be optimised and provide better conditions for investment to improve the environment and the climate. The researcher has responded to the criticism and has stated that much of the criticism concerns aspects that did not form part of the researcher’s task. That task was to optimise the existing system, not to fundamentally reform it.
We have reason to continue to monitor the Government’s work on optimisation of environmental assessment in order to see which proposals from the study become bills. Do you want to know more about the investigation or did the article raise other questions? You are most welcome to contact any of us or your regular contact at Lindahl.