decision

Mihaileni Dam Project - decision

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Litigation

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An NGO, Declic, had been advocating for the suspension of the effects of the government decision which decided on the expropriation of land with forest vegetation concerning the Mihăileni Accumulation project, which raises significant legal issues and has been the subject of judicial scrutiny by the courts of Cluj. (see judgment rendered in case no. 513/117/2022). Given this legal context, expropriating predominantly forested land for the purpose of deforestation is not only premature but also illegal. It violates both national and EU rules assumed by Romania regarding preventing water body deterioration, mitigating climate change, and protecting biodiversity. The government's decision was adopted without conducting an environmental impact assessment, and the project's operations were to be carried out under a building permit issued in 1987.

The plaintiff asserted that in the absence of a suspension of the effects of the government decision pending the determination of the main action:
1.        The expropriation of housing, productive land, and forests would result in their destruction and replacement by an artificial accumulation. Such an action would inevitably result in irreparable ecological damage.
2.        When the area is flooded, the methane stored in the forested land will be released into the atmosphere. Forests are a natural carbon store. The greenhouse effect of methane is approximately 29 times that of carbon dioxide over 100 years, 86 times over 20 years, and more than 100 times over a few years. The damage to the climate will be irreparable.

The plaintiff referenced Paul Crutzen, the Dutch chemist who, along with other scientists, was awarded the Nobel Prize for discovering the effects of ozone-depleting compounds: "...humans have altered the composition of the atmosphere. Because of fossil fuel and deforestation, the concentration of carbon dioxide in the air has increased by 40% over the last two centuries, while the concentration of methane, an even more potent greenhouse compound, has almost doubled."

The Cluj Court of Appeal found prima facie in agreement with the applicant that there are contradictions between the finding of the cross-sectoral nature of flood management and the concrete measures to be taken, namely deforestation, which appears to be at odds with the concepts of sustainable development and forestry development. In that regard, the Court noted that at this stage, there are no studies to determine to what extent the change in land use will impact the climate, contrary to Romania's commitments to reduce GHG emissions.  Building upon his initial observations, Judge Simon Antoniu noted that these potential environmental impacts not only contradict the existing legal framework at the national level but also appear to diverge from the interpretation of the Court of Justice of the European Union regarding the deterioration of riverine ecosystems. In light of the considerations above, it is imperative that this action be avoided and that states are held to the obligation "to refuse to authorize a project if it is likely to deteriorate the status of the body of water in question or to compromise the achievement of good status of surface water bodies" (Judgment in Case C-461/13 Bund fur Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland, paragraph 50).

The judgment no. 219/2022 is final, as the appeal filed by the Romanian Government was rejected in October 2023 by the High Court of Cassation and Justice.

Mihaileni Dam Project

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Mihaileni Dam Project - decision

Target

Policy instrument

Risk

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance