The case: regarding declaring illegal and invalid the order of the Ministry of Environmental Protection and Natural Resources of Ukraine dated 04/03/2023 No. 184 “On approval of the list of invasive tree species with a significant ability to spread uncontrollably, prohibited for use in the process of forest reproduction”.
Region: Ukraine.
The essence of the case: appeal by business lobbyists of the decision of the authority, which prevents economic activities that are harmful to the environment.
Parties: Plaintiff – Non-governmental organization “Scientific and Technical Center of Agroforestry: Achieving Ecological, Economic and Social Benefits”, Defendant – Ministry of Environmental Protection and Natural Resources of Ukraine, third parties without independent claims on the side of the PLaintiff – Non-governmental organization “Right to a Safe Future”, Synergy-E Limited Liability Company, Pavlovnia Energy Ukraine Limited Liability Company.
The essence of the problem: on April 3, 2023, the Ministry of Environmental Protection and Natural Resources of Ukraine adopted the order “On approval of the list of invasive tree species with a significant ability to spread uncontrollably, prohibited for use in the process of forest reproduction.” This order contains a list of invasive species of trees that are prohibited from being planted in forests. Such a decision is commercially unprofitable for representatives of businesses that grow plant species included in the list of invasive plants. Therefore, the interested business initiated a court case aimed to cancel such an order.
Basic facts:
On 04/03/2023, the Ministry of Environmental Protection and Natural Resources of Ukraine adopted the order, which approved the list of invasive tree species with a significant capacity for uncontrolled spread, prohibited for use in the process of forest reproduction.
The challenged order was developed and adopted in compliance with clause 2 of the Resolution of the Cabinet of Ministers of Ukraine dated December 20, 2022 No. 1410 “On Amendments to the Rules of Forest Reproduction”, which obliges the Ministry of Environmental Protection and Natural Resources to approve a list of invasive tree species with significant ability to spread uncontrollably, prohibited for use in the process of forest reproduction.
In turn, this norm of Resolution 1410 clarifies Part 2 of Art. 82 of the Forest Code of Ukraine, according to which forest restoration and afforestation are carried out in a way that ensures creation of climate-resistant forests with high protective properties, taking into account the prevention of invasions of alien species into natural ecosystems.
However, in the statement of claim, the Plaintiff notes that on land plots owned by the Plaintiff and on land plots that are privately owned by citizens and legal entities, he directly uses trees that are included in the list by the Order of the Ministry of the Environment dated April 3, 2023. It is about trees prohibited in the reproduction of forests, which directly violates the rights, freedoms and interests of the Plaintiff and creates obstacles on the way to achieving the organization’s goal (forestry/ agroforestry).
At the same time, the Plaintiff does not specify exactly which of his rights, freedoms or interests are violated. Also, the Plaintiff does not indicate which species of trees, if included into the challenged order, violates his rights, freedoms or interests, and he does not challenge the list itself, but only the procedure for its adoption, which, in the Plaintif‘s opinion, was violated.
The Plaintiff appeals the order on the grounds of violation of the procedure for its approval, claiming that such an order is a regulatory act, and therefore should have been approved in accordance with the procedure provided for by the Law of Ukraine “On the Basics of State Regulatory Policy in the Field of Economic Activity.”
However, the foresters’ attempts to defend their commercial interests were not limited to this lawsuit. As EPL became aware on 09/20/2023, the State Regulatory Service of Ukraine (SRS) adopted decision No. 1 on the need to cancel the regulatory act, namely the order of the Ministry of Environmental Protection and Natural Resources of Ukraine dated 04/03/2023 No. 184 “On approval of the list of invasive tree species with a significant ability to uncontrolled distribution that are prohibited for use in the process of forest reproduction”.
In justifying the decision, the State Regulatory Service of Ukraine notes that in accordance with the Action Plan for the Implementation of the Biosafety and Biological Protection Strategy for 2022-2025, approved by the Order of the Cabinet of Ministers of Ukraine dated July 7, 2022 No. 573-r, the Ministry of the Environment had to ensure the preparation of proposals and during 2022-2023, to approve methodological recommendations regarding the criteria for classifying plant and animal species as invasive alien species. Only after this the next step should be preparation during 2023-2025 of proposals and approval of lists of invasive alien species of flora and fauna.
At the same time, the SRS believes that the list itself is not a regulatory act, but methodological recommendations are subject to the Law of Ukraine “On the principles of state regulatory policy in the field of economic activity”.
One could argue with such a position, but the Ministry of Environment decided not to conflict with the SRS, and accordingly not to defend the legality of its order, and on October 2, 2023, recognized it as having lost its validity. In this connection, this court case has lost its meaning.
On November 17, 2023, the court issued a decision to close the proceedings in the case.
At the same time, the Ministry of Environment is working on approving methodological recommendations and a new list of invasive tree species prohibited for use in the process of reforestation, and apparently the new list will still be adopted despite the opposition of forest industry representatives.
Supplements:
Order of the Ministry of Environment No. 184 dated 04/03/2023 “On approval of the list of invasive tree species with a significant capacity for uncontrolled spread, prohibited for use in the process of forest reproduction”. https://zakon.rada.gov.ua/laws/show/z0641-23#Text
Notification of SRS.
Order of the Ministry of Environment No. 671 dated 02.10.2023 “On recognizing invalid the order of the Ministry of Environment No. 184 dated 03.04.2023”. https://zakon.rada.gov.ua/laws/show/z1743-23#n6
Court decision to close the proceedings in the case https://reyestr.court.gov.ua/Review/114996663
