Final decision on phase II of Danube-Black sea canal is illegal
To: Mr. Matthias Sauer
Chair of the Implementation Committee of the UNECE
Espoo Convention
Copy:
Mr.Nick Bonvoisin
Secretariat to the Convention on Environmental Impact Assessment
in a Transboundary Context
Environment, Housing and Land Management Division, UNECE
UNECE/EHLM, Palais des Nations, CH-1211 Geneva 10, Switzerland
E-Mail : eia.conv@unece.org, Fax: : +41 22 917 01 07
Re: Legal assessment of the Final Decision concerning phase II of the Danube-Black Sea canal construction taken by Ukraine
Dear Mr. Matthias Sauer, Mr. Bonvoisin,
We are fully aware of the Final Decision of Ukraine on the implementation of the project “Danube-Black Sea Navigation Route in the Ukrainian part of the Danube Delta. Full development” taken by Ukraine on 25 January, 2010, and further communicated to the Secretariat. Keeping in mind the meeting of the Implementation Committee of the Espo Convention, taking place in Geneva at the moment we would like to use this opportunity and provide clarifications on the legal implications of the Final Decision taken by Ukraine on the Danube-Black Sea canal.
We would like to provide the following observations based on the requirements of national laws and Espoo Convention.
1) The decision adopted by Ukraine is titled the Final Decision in terms of Espoo Convention. Convention text itself did not specify what is the “final decision” and the legal system of Ukraine is not very clear about this term. The expert nominated by the Implementation Committee to prepare the independent review of the Ukraine’s legal system concluded that: “from the practical standpoint the final decision might also be interpreted as the SER (State Environmental Review) resolution, as it is at this stage that all environmental factors can and should be taken into account. It would allow the competent authority in Ukraine to consider the outcomes of the transboundary procedure while deliberating the SER resolution.”
Contrary to this position, Ukraine claimed that the final decision is the construction activities permit issued by the local authorities. At the same time, Romania claimed that the decision of the Cabinet of Ministers of Ukraine approving phase II taken on May, 30, 2007 could be considered the final decision.
Nevertheless, the Repeal of the Final Decision (11/09/2008) and the Final Decision on phase II of the canal construction (25/01/2010) could not be considered as “final decision” in the light of the national legislation of Ukraine. Since the time Ukraine took official commitments to reconsider the final decision on phase II of the canal construction in May, 2008 at the Meeting of the Parties in Bucharest, neither SER of phase II, nor the Decision of the Cabinet of Ministers of Ukraine were amended or cancelled. Moreover, the Ministry of Environmental Protection of Ukraine is not in the position to accept the claims of EPL challenging in court the SER of Phase II (on the basis of the absence of EIA in transboundary context at that time). The court proceedings are still pending since 2007. Also the Cabinet of Ministers of Ukraine amended its final decision on approval of phase II on 11th of November, 2009, which was the clear indication that the final decision taken in 2007 is still valid.
Thus, the aforementioned final decision adopted by Ukraine in January, 25, 2010 could not be considered as the “Final Decision” under the Espoo Convention and the national legislation of Ukraine.
2) Lack of procedure and competence of the Ministers to take the Final Decision jointly
The legal force of the Final Decision submitted by Ukraine to the Espoo Secretariat is questionable because of the absence of the competence of the Ministers of Environmental Protection, Transport and Communications, Foreign Affairs to issue “final decisions” of such kind jointly or individually.
The powers of the Minister of Environment are limited to the organizational matters and signing of the normative acts of the Ministry. The Minister of Environmental Protection does not have powers to sign the individual decisions on panned activities. The same applies to the powers of the other Ministers.
3) As was mentioned in para 1 above, the other final decisions taken on phase II are still in force and they are based on the EIA in national context developed in 2006.
The SER of Phase II (full development) is valid and challenged in court by EPL. The case is now pending in the Administrative court of Appeals of Lviv region. The court of the first instance supported the position of EPL and declared invalid SER of phase II, but the defendants appealed the decision.
Decision of the Cabinet of Ministers of Ukraine adopted in 2007 approving the construction project of phase II of the navigation canal Danube-Black Sea is valid and was recently amended to prolong the period of construction until 2012. This decision is based on SER and EIA in national context. Such decision of the government could be taken only on the basis of the positive SER and other governmental reviews of the EIA and project documentation. The decision of the government approving the construction project opens the opportunities for the project to be financed from the state budget and is obligatory for the projects of such scale.
So before the approval of the Final Decision in January, 2010 by Ukraine there were all the necessary legal grounds and decisions for continuation of phase II of the Danube-Black Sea canal construction.
4) EIA amended with transboundary context was not subject to SER
The SER of phase II of the canal construction was approved by the Ministry of Environmental Protection in 2006 on the basis of EIA developed before 2006. Later the EIA of phase II was amended and the EIA in transboundary context was added. It means that the Ministry of Environmental Protection haven’t studied the EIA in transboundary context and their previous SER is based of the conclusion about the absence of significant transboundary impact from proposed activities.
5) Findings of transboundary EIA and Final Decision contravene the findings of the Espoo Inquiry Commission
The Final Decision reached the conclusion that: transboundary environmental impacts that are likely to be associated with the implementation of the Project “Danube-Black Sea Navigation Route in the Ukrainian Part of the Danube Delta. Full development” (Phase II of the Project) are of local-scale and limited, and thus not likely to cause any significant change in the key characteristics of natural environment and loss of biodiversity in the Danube Delta.
At the same time, the final conclusion of the Espoo Inquiry Commission was that the canal is likely to have significant adverse transboundary impacts. The bird and fish resources were the main components claimed to be affected by the planned activity. Nevertheless, the Final Decision do not reflect these conclusions and thus the mitigation measures listed are inadequate for level of impact on fish and bird resources.
6) The Final Decision violates national laws on nature protection
The list of the mitigation measures includes:
- Limiting, as much as possible, any construction and repair/maintenance activities along the
entire length of the navigation route in the periods of spawning and downstream migration of young fish;
- Limiting, as much as possible, any construction and repair/maintenance activities along the seaward access channel in the periods of bird nesting.
These provisions are contravening national laws forbidding any presence and passage of the vessels during spawning period and downstream migration. In the past the Ministry of Environment Protection was suspending dredging activities of Delta Lotsman during the spawning period and the relevant ban was included in the SER decision on phase I of the Danube-Black Sea canal construction. Such formulation of mitigation measures will prevent effective control and enforcement by state inspectors and public as any dredging and construction works under phase II might be justified.
7) No adequate compensation and mitigation measures elaborated.
The list of compensation measures is very inadequate and not elaborated properly, the negative impact to the Danube Biosphere Reserve is not included, the damage to biodiversity that should be compensated is not defined in financial terms. The Final Decision allows Delta Pilot to continue construction without paying adequate compensation of the damage to the biodiversity.
Taking into account the aforementioned, EPL wants to express its concerns with the quality of the transboundary EIA and the negative impact on the environment of the Danube Delta as the result of the implementation of Phase II, as well as the lack of adequate mitigation and compensation measures. Thus, we urge the Implementation Committee of the Espoo Convention to assess critically the Final Decision on phase II and draw attention of the government of Ukraine to the shortcomings of the Final Decision, as well as the absence of the legal force of such decision under national laws. We also believe that the transboundary EIA should be subject to the State Environmental Review, while the previous SER of phase II (2006) should be withdrawn.
Please accept the most respectful regards,
Executive director “Environment-People-Law” O.Kravchenko
[1] Independent review of Ukraine’s legal, administrative and other measures to implement
the provisions of the Convention, ECE/MP.EIA/IC/2009/5, 2 July 2009, para 32.
[2] The Report of the Implementation Committee, Review of Compliance. ECE/MP.EIA/2008/6 , Para 27.
[3] The Provision on the Ministry of Environmental Protection of Ukraine (2.11.2006), Para 9.
[4] On the Approval of the Investment Programs and Construction Projects and Conduction of the State review, Decision of the Cabinet of Ministers of Ukraine on 31 October, 2007 N 1269.
[5] Report on the likely significant adverse transboundary impact of the Danube – Black Sea navigation route at the border of the Romania and the Ukraine, July, 2006, P.58-59.
