Case: Tashlytska Pumped Storage Hydro Station
Region: Ukraine, Mykolaiv oblast, Yuzhnoukrainsk
Essence of case: protection of biodiversity and protected area of Ukraine, protection of the right to safe and healthy environment;
Parties: Residents of Mykolaiv and Mykolaiv oblast, regional-landscape park ”Granitno-stepove Pobuzhya” SE NNEC “Energoatom,” South-Ukrainian Nuclear Power Plant, Ministry of Fuel and Energy of Ukraine, Ministry of Environment of Ukraine, Mykolaiv Oblast Rada (Regional Council )
Essence of problem: The government of Ukraine is going to finish the construction of the Tashlytska Pumped Storage Hydro Station (PSHS), which has to be included into South Ukrainian nuclear power complex. Tashlytska PSHS is being built with the purpose of extinction of night peak voltage of power circuit.
It is necessary to supply the bottom of the station with water from the Pivdennyj Bug river to provide full-time operation of PSHS. It was planned to change the head water level of the Oleksandrivskyi water reservoir (8m), and, as the result especially valuable lands of protected area will be flooded. In 1996 these lands were included into the territory of the regional landscape park (RLP) “Granitno-stepove Pobuzhya” due to their high biodiversity value.
In 2006 “Energoatom” raised the level of water reservoir up to 14,7 m. Later, in June, 2006 “Energoatom” was allocated the land plot of 27.72 ha belonging to the territory of protected area for permanent use by the decision of the Cabinet of Ministers of Ukraine №841. On July 6, 2006 Mykolaiv oblast council adopted the decision №10 changing the boundaries of RLP “Granitno-stepove Pobuzhya” and withdrawing 27.72 ha of lands from it for the purpose of allocation of Oleksandrivskyi water reservoir of South-Ukrainian Nuclear Power Plant.
In 2006 the State Office for Protection of Cultural Heritage issued a decree to include Gard island (located on the Pivdennyi Bug river) into the list of cultural heritage and governmental decision №928 of 3.09.2009р. listed this object in the State registry of immovable monuments of Ukraine.
Within the boundaries of the RLP the President of Ukraine by its Decree from 30.04.2009 established national natural park “Byzkuy Gard”. Thus, further leveling of the level of Oleksandrivsky water reservoir above 14,7 m threatens biodiversity of the park. For this purpose near 26 ha of park lands should be withdrawn. Habitats of the Bern species and Red Book species will be destroyed by such flooding of the lands.
The process of decision-making concerning TGAES violates national laws and international obligations of Ukraine in the sphere of nature protection and public participation.
Today two hydroelectric units of TGAES out of six are in operation, and the third unit is under construction.
Oleksandrivsky water reservoir has level of 14,7m, but “Energoatom” plans to increase the level to 20,7 m/ For this purpose the company needs additional 26 ha of lands of natural park “Byzkuj Gard”. This, company has been putting obstacles to the development of land planning document for national park allowing the park to establish its own boundaries on the land by not approving land planning document.
Our goal now is to force “Enegroatom” company to lower the level of Oleksandrivsky water reservoir and to return the lands to RLP (natural park) and also to prevent allocation of more lands (26 ha) to Energoatom and increasing of water reservoir level to 20.7m.
The case is processed both on national and international levels
National level:
• Challenging the conclusion of state ecological expertise concerning amended construction project of Tashlytska Pumped Storage Hydro Station
• Challenging the decision of Mykolaiv oblast council on withdrawal of 27.72 ha of land from the territory of RLP “Granitno-stepove Pobuzhya” for the purpose of accommodation of Oleksandrivskyi water reservoir on the Pivdennyi Bug river
• Challenging the Decision of the Cabinet of Ministers of Ukraine №841 on allocation of lands for permanent use, which granted “Energoatom” with the land plot of 27.72 ha belonging to the territory of RLP “Granitno-stepove Pobuzhya” for permanent use
• Challenging the lack of actions on behalf of the General Prosecutors Office who failed to conduct inspection following EPL complaint concerning the legality of the Decision of the Cabinet of Ministers of Ukraine №841 on allocation of lands
International level:
• Application to the Secretariat of Bern Convention on the Conservation of European Wildlife and Natural Habitats to protect Bern species of flora and fauna
National level:
• Challenging the conclusion of state ecological expertise concerning amended construction project of Tashlytska Pumped Storage Hydro Station
EPL filed a case to court challenging the conclusion of the state ecological expertise concerning amended construction project of Tashlytska Pumped Storage Hydro Station № 9/2-1/2-3-430 dated 30.04.98 and issued by the Ministry of Environmental Protection of Ukraine which stated ecological permissibility and possibility of adoption of future decisions on implementation of amended construction project of Tashlytska PSHS.
Commercial Court of Lviv region rejected EPL suit on the basis of the lack of standing of EPL to file cases on behalf of other entities (RLP “Granitno-stepove Pobuzhya”). Court considered EPL suit during one court hearing during reasoned absence of EPL representative. EPL appeal brought no changes to the decision of the court of first instance.
• Challenging of the decision of Mykolaiv oblast council on withdrawal of 27.72 ha of land from the territory of RLP “Granitno-stepove Pobuzhya” for the purpose of allocation of Oleksandrivskyi water reservoir of South-Ukrainian Nuclear Power Plant
In 2006 citizens of Mykolaiv using the legal aid of EPL lawyers filed a suit to the Central regional court of Mykolaiv. The court declared illegal the decision of Mykolaiv oblast council № 10 dated 6 July 2006 on withdrawal of 27.72 ha of land from the territory of RLP “Granitno-stepove Pobuzhya” for the purpose of allocation of Oleksandrivskyi water reservoir of South-Ukrainian Nuclear Power Plant. Plaintiffs asked the court to protect their rights and interests, violated by the decision of local council allowing destruction of valuable complexes of Pivdennuj Bug river serving as habitats of plants listed in the Red Book of Ukraine and protected by international agreements (Bern Convention). The court of the first instance confirmed that challenged decision violates the rights of citizens to participate in environmental protection measures, in rational and complex use of natural resources (in this case through their representatives – deputies of local council), and the right to general use of natural resources.
Mykolaiv oblast council and «Energoatom» have not accepted such court decision cancelling one of the most important documents for the implementation of construction project and operation of Tashlytska PSHS and filed appeals. Odessa Administrative Appeal Court in 2007 made a perfunctory consideration of the appeals and satisfied them in addition to making new decision to reject the claims of the plaintiffs.
Plaintiffs filed second appeal and in 2009 the High Administrative Court of Ukraine cancelled the decision of the appeal court and returned the case back to the Odessa Administrative Appeal Court for reconsideration of the case.
On November ,6, 2012, Odessa Administrative Appeal Court took a decision in favor of plaintiffs and declared illegal the decision of oblast council. Plaintiffs are working on the execution of the decision.
• Challenging the Decision of the Cabinet of Ministers of Ukraine №841 on allocation of lands for permanent use, which granted “Energoatom” into permanent use the land plot of 27.72 ha belonging to the territory of RLP “Granitno-stepove Pobuzhya”
In 2006 EPL challenged in court the Decision of the Cabinet of Ministers of Ukraine №841 on allocation of lands into permanent use. By abovementioned decision government allocated into permanent use particularly valuable lands along the river Pivdennyi Buh to “Energoatom”. These 27 ha of lands belonged to the RLP “Granitno-stepove Pobuzhya” in Mykolaiv region to be used for Oleksandrivskyi water reservoir along the Pivdennyi Buh river. Such reservoir as stated by nuclear agency is necessary for normal operation of Tashlytska PSHS. Governmental decision violates the procedure of allocation of lands for permanent use foreseen in the Land Code of Ukraine and also Temporary Governmental Bylaws.
Commercial courts of first and appeal instance rejected EPL claims on the reasons that challenged governmental decision is recommendatory despite the fact that atomic agency was issued the land certificate based on the abovementioned decision of the government. On 28 April 2010, the High Administrative Court of Ukraine ruled in favour of EPL and cancelled all the previous decisions of courts on this case. In addition it sent this case back to the Regional Administrative Court of Kiev for reconsideration.
On 9 November 2010, the bench of judges of Regional Administrative Court of Kiev ruled in EPL’s favour and declared illegal the decision of the government. Resulting from the appeal claim of the defendant and Energoatom , the Kyiv Appeal Administrative Court took a decision to cancel the first instance court decision and to issue new decision to reject our suit on15 February, 2011. EPL prepared second appeal and addressed it to the High Administrative Court. On 29 November, 2011 the Court canceled the appeal court decision and left the decision of the court of first instance in force. The defendant and third party filed an application for the reconsideration of the case by Supreme Court of Ukraine. On May, 29, 2012, the Supreme Court of Ukraine took the final decision in six years long litigation and left the decision of the first instance court in force acknowledging the illegality of the decision of the government to allocate 27,72 ha of protected lands for Oleksandrisvky water reservoir of TGAES.
• Challenging the lack of actions from the side of the General Prosecutors Office who failed to conduct inspection following EPL complaint concerning the legality of the Decision of the Cabinet of Ministers of Ukraine №841 on allocation of lands EPL filed a suit to court challenging the reply of the General Prosecutors Office following the EPL complaint in which the defendant have not proved to complete inspection upon EPL request and provided “run-around” reply on the absence of the grounds for any reaction by Prosecutors Office. EPL challenged such lack of actions in court and asked the court to oblige the General Prosecutors Office to conduct thorough inspection of EPL compliant and also to lodge a procurator’s protest against decision of the government №841 on allocation of lands.
Since 2006 the courts of all instances have been ruling in favour of EPL and declared illegal the lack of actions from the General Prosecutors Office. In May, 2010 High Administrative Court of Ukraine returned the case for reconsideration due to the insufficient examination of the facts in the case, namely: the courts have not demanded the materials of inspection from the defendant.
The first instance court reconsidered the case again and this time the defendant provided the documents proving the fact of opening of the operational file on our complaint by the Prosecutor’s office and conduct of the examination. Thus, the court of first instance took a decision in favor of defendant. EPL did not file the appeal. At this stage we had the positive decision of the High Administrative Court of Ukraine declaring illegal the decision of the government on allocation of the 27,72 of lands to Energoatom.
