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Writing for the legal journal Juridica, Sandra Kaas examines the role and responsibility of administrative authorities in assessing the environmental impact of activities affecting Natura 2000 areas

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Writing for the legal journal Juridica, Sandra Kaas examines the role and responsibility of administrative authorities in assessing the environmental impact of activities affecting Natura 2000 areas

In this year’s opening issue of the legal journal Juridica, RASK’s legal expert Sandra Kaas examines the obligations of the developer applying for a permit in a Natura area and the administrative authority granting the permit, as well as the responsibility of each party in identifying factors relevant to the proceedings.

With Estonia having many Natura 2000 areas, Natura assessments are often a prerequisite for allowing new development activities. In Estonian law, the assessment of Natura takes place in the form of a general environmental impact assessment, following the proceedings of either an environmental impact assessment or a strategic environmental impact assessment. This means that the slightest doubt that the planned activity may significantly and adversely affect the Natura 2000 area calls for a full-scale environmental impact assessment, including a Natura assessment. The Natura assessment may bring forth a number of issues on which the developer and the decision-maker may have different views. How can a consensus be reached in a case with diverging or even opposing views? Who should investigate the issue further and look for new data? Is it the responsibility of the developer, who has a duty to cooperate in the administrative proceedings? Or is obtaining and analysing the information rather the task of the administrative authority, who has a duty to investigate?

In practice, the duties and responsibilities of the parties in Natura assessment proceedings remain unclear, as do the content requirements and purpose of the assessment report prepared by the developer. In the administrative practice of Natura assessment in Estonia, decision-makers tend to assign the substantive assessment decision to the environmental experts brought in by the developer, requiring them to exhaustively resolve all possible issues, including value conflicts, in the assessment report. Therefore, there is reason to claim that the responsibility of the decision-makers in Natura assessments has gone off-balance. This is confirmed by studies on the administrative practice of impact assessment in Estonia, and the same tendency can be observed in environmental disputes reaching the administrative courts, where the main issue is the substantive quality of environmental impact assessments. A common complaint is that the assessment is superficial and inadequate. Cases where parties argue for years over the content of the environmental impact assessment report and the Natura assessment included in it are becoming systematic in Estonian case law, indicating the need for more clarity in these issues. Especially considering that in today’s legal situation, disagreements about assessment reports remain without a meaningful, workable solution for the developer because current case law does not allow the non-approval of an assessment report by the decision-maker to be contested as a procedural act separate from the final administrative act.

Although the article focuses on Natura assessments, to a certain extent, its conclusions also apply to the proceedings of environmental impact assessments or strategic environmental impact assessments more broadly, as similar questions regarding the duty to investigate and the duty to cooperate also arise in these proceedings.