Case: Challenging the decision of the Cabinet of Ministers of Ukraine on approval of the Program of Hydropower Industry Development for the period up to 2026.
Region: Ukraine, Kyiv.
The essence of the case: protection of EPL’s interest in complying with environmental legislation, in particular the environmental assessment of the program, and the protection of EPL’s right to public participation in the adoption of such a program.
Court case: recognition of the illegal inaction of the Ministry of Energy and Coal Industry of Ukraine and the Cabinet of Ministers of Ukraine during the development and approval of the Program of Hydropower Development for the period up to 2026 and the cancellation of the order of the Cabinet of Ministers of Ukraine dated July 13, 2016 No. 552-р “On Approval of the Program of Development of Hydropower Industry for the period up to 2026”.
Parties: Plaintiff – ICO “Environment-People-Law”, Defendant 1 – Cabinet of Ministers of Ukraine, Defendant 2 – Ministry of Energy and Coal Industry of Ukraine, third person on the side of Defendants – PJSC “Ukrhydroenergo”.
The essence of the problem: The state does not involve the public and does not take into account environmental risks in the strategic planning of the development of a particular branch of the economy, in this case – hydropower, although national legislation, and the European one that Ukraine has implemented for the implementation of the Association Agreement, require this.
On July 13, 2016, the Cabinet of Ministers of Ukraine adopted the Order No. 552-r, which approved the Program of Hydropower Development for the period up to 2026 (hereinafter – the Program).
However, the development and adoption of this Program did not comply with the procedures provided for the adoption of such programs, in particular:
1. The State Environmental Expertise of the Program has not been conducted.
2. The Strategic Environmental Assessment of the Program has not been conducted.
3. Public participation in the decision to approve the Program was not ensured.
The above circumstances have violated EPL’s legitimate interest in complying with environmental legislation, in particular the environmental assessment of the program, as well as the right of EPL to public participation in the adoption of such a program.
At the time of the development and approval of the Program, the Law of Ukraine “On Environmental Expertise” was in force. According to Art. 14 of this law, development projects of individual branches of the economy are subject to state ecological expertise. According to Art. 4, the purpose of ecological expertise is to prevent the negative impact of human activities on the state of the environment and human health, as well as assess the degree of environmental safety of economic activity and environmental situation in certain areas and objects.
In addition, on March 1, 2016, the Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context entered into force for Ukraine (the “Protocol “). As stated in Article 4, paragraph 2, of the Protocol, a strategic environmental assessment is carried out, inter alia, with plans and programs that are being prepared for energy sector.
Both of these procedures, such as the procedure for carrying out a state environmental expertise and the procedure for carrying out a strategic environmental assessment, require public participation. However, since such assessments were not carried out, the public was not involved in the adoption of the Program and did not even suspect such a decision is being taken.
On December 30, 2017, EPL appealed to court requesting to declare unlawful inaction of the Ministry of Energy and Coal Industry of Ukraine and the Cabinet of Ministers of Ukraine during the development and approval of the Program of Hydropower Industry Development for the period up to 2026 and to declare illegal the Cabinet of Ministers of Ukraine Order dated July 13, 2016 р. № 552-p.
On February 7, 2018, the District Administrative Court of Kyiv made a decision to reject EPL suit. In the opinion of the court, the Program of Hydropower Industry Development for the period up to 2026, approved by the order of the Cabinet of Ministers of Ukraine No. 552-r of 13.07.2016, in no way violates the rights and interests of the plaintiff.
Disagreeing with such a decision, EPL filed an appeal. However, the Kyiv Appellate Administrative Court fully supported the decision of the court of first instance.
At the moment, the case was sent for second appeal.
The court decisions can be found at:
decision of the court of first instance – http://reyestr.court.gov.ua/Review/72562931
appeal decision – http://reyestr.court.gov.ua/Review/74328464