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Declic v Hunedoara Environmental Protection Agency and Samax Romania - petition

Litigation

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Sabin Litigation

judgment

Declic v Hunedoara Environmental Protection Agency and Samax Romania - judgment

decision

Declic v Hunedoara Environmental Protection Agency and Samax Romania - decision

Filing Year For Action

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.

Declic v Hunedoara Environmental Protection Agency and Samax Romania

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Actions or measures to adapt terrestrial systems to climate change.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

Actions to adapt human health, healthcare systems and well-being to climate change.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Activities that provide lodging, food, and entertainment services to guests, including hotels, restaurants, and resorts.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Work that is productive and delivers a fair income, security in the workplace and social protection for all, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity.

Activities that relate to the production of goods and services from forests.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Actions or measures to adapt freshwater systems to climate change.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves the distribution, treatment, and conservation of water resources.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

This sector provides communication services, software development, and IT solutions.

Jobs that contribute to preserving or restoring the environment. We include jobs which require a high amount of green skills or which spend much of their time on green activities, as well as jobs transforming polluting industries.

This sector involves activities to move goods and people, alongside the storage of products.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

This sector involves the wholesale and retail selling of goods.

Using laws and the legal system more broadly to protect vulnerable entities

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

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A target to reduce the prevalence of a greenhouse gas over a specific time frame

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Social protection systems consist of policies that help people manage social risks in order to prevent poverty and maintain decent incomes and living standards

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

A potent, short-lived greehouse gas, largely released from livestock, fossil fuel extraction and waste management.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Declic v Hunedoara Environmental Protection Agency and Samax Romania - petition

Target

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance