Declic v Hunedoara Environmental Protection Agency and Samax Romania

The plaintiff has filed an application for a judicial review of the environmental endorsement issued by the Hunedoara Environmental Protection Agency for Europe's second largest mining project- Rovina Valley Mining Project developed by the Canadian company Euro Sun Mining. At the same time, the plaintiff applied for an interim injunction to suspend the effects of the Environmental Endorsement No. 7/2022 issued by the Hunedoara Environmental Protection Agency, until the main action was decided, as the two statutory conditions for the granting of the application were met: I. The manifest prima facie illegality of the environmental endorsement, for the following key reasons: 1. the lack of a transboundary impact assessment from a threefold perspective: a) The size of the project and the extremely large area to be cleared (200 hectares of protected forest). The assessment is mandatory under the Espoo Convention, including in the early planning stages. b) the transboundary nature of the underground and surface watercourses. The assessment is required under Article 3 of Helsinki Convention and Articles 20-21 of the UN Watercourses Convention. c) the transboundary nature of the climate change impacts of the project. In contravention of Article 19 of Government Decision 1076/2004 and Annex 1 of the SEA Directive, the project’s impact on climate change had not been assessed. 2. Failure to undertake public consultation in the transboundary context 3. Failure to carry out an appropriate assessment under Article 6(3) of the Habitats Directive (92/43/EEC) and the correspondent national statutory instrument, namely the Government Emergency Ordinance (hereinafter GEO) 57/2007 4. Failure to assess climate change impacts in line with Article 19 of the Government Decision 1076/2004 in conjunction with Annex I of the SEA Directive. II. Fulfilment of the condition of imminent harm The plaintiff pleaded that the likelihood of harm must be assessed through the filter of the precautionary principle. In assessing whether a harm is imminent ECtHR’s approach is nuanced in the sense that the notion “imminent” has a broad meaning: where the harm is real, the ECtHR equates the reality of the harm with imminence, hence the harm is impeding and must be precluded. This confirms the preventive nature of positive obligations. More specifically, it shows that a breach of these obligations does not only occur when the risk is close to materialising (the proverbial "point of no return"). Risks that threaten to occur in the long term can and must oblige the authorities to take preventive measures. Consequently, an "acute" danger is not required for a request for suspension to be granted, the imminence being the reality of the risk. The Court of First Instance dismissed the application. In its reasoning, the trial judge stated that the two above-mentioned criteria were not met as the PUZ – for the Rovina mining project within the Mining Licence Area, Hunedoara County (for which the environmental endorsement was issued) would not have any possible impact on the environment, since the PUZ is an urban planning document which proposes a change in the use of the land and the functions of the area on part of the licence area and defines the applicable urban planning regulations in order to ensure the conditions for the sustainable insertion of the Rovina mining project, so that at this stage the plan for which the environmental endorsement was issued has no physical effect on the ground, but only an effect at the level of urban planning regulations. The plaintiff appealed the judgement, and the Cluj Court of Appeal granted the appeal, reversing the lower court’s decision. Judge Iarina Prelipceanu noted, among other things, that point 14 of the Annex to the Espoo Convention makes it compulsory to initiate the transboundary procedure in the case of activities with a significant impact on the environment such as large quarries, mines, on-site mining and processing of metal ores or coal. The conditions of Annex III, point 1 of the Convention for determining the transboundary impact according to the location, size and effects of the project are also apparently met, as the project involves an area of 698.33 ha and the clearing of 200 ha of forest, and is located in the area of the Crișul Alb river and transboundary groundwater. The defendants (Samax Romania and Environmental Protection Agency of Hunedoara) appealed against the judgement. The appeal for annulment was heard by another bench of the Cluj Court of Appeal, which upheld the ruling of the first panel of the Cluj Court of Appeal. The decision was based on the following cogent reasoning by Judge George Barbura - Turcu of the Cluj Court of Appeal, who held that the European Court of Human Rights has ruled that an appeal for annulment must not constitute a disguised "appeal" seeking a retrial of the case, because otherwise it would prejudice the presumption of validity which irrevocable judgments must enjoy and the principle of legal certainty, and as such the rule of law. The judgment under appeal sets out at length the grounds on which the Court of First Instance’s reasoning was invalidated on the basis of the provisions of Article 18 of the GEO 195/2005 [and] in relation to the fulfilment of the condition of imminent harm considering that there is apparently a serious impact of the administrative act on water quality, the health of the population as a result of the way the project is operated and, subsequently, the way waste is stored and disposed of, the impact on climate change as a result of greenhouse gases, carbon and the deforestation of a large area of forest.