D’Oultremont v Région Wallonne C-290/15

This case was a preliminary reference to the CJEU for a ruling on whether ‘regulatory orders’ constitute plans or programmes for the purposes of the Strategic Environmental Assessment Directive (Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment).

The regulatory order in question was a decision by the Walloon Region authorities as to technical specifications for wind farm developments above a certain threshold size. The order covered issues such as lighting in wind farm sites, ‘shadow flicker’ and noise. The reason why this may have fallen outside the provisions of the SEA is that this order itself did not on its face determine whether or not such turbines would be built, nor where. However, dispute arose because in order to comply with certain elements of the order (in relation to shadow flicker in particular since these provisions required that turbines be installed at a particular angle to the sun) there was a degree to which the order did in fact dictate the location of the turbines. Thus, paraphrasing the referring court: 

the provisions of the order concerning noise and the effects of shadow flicker produced by the functioning of the wind turbines necessarily has the consequence of determining the location of the wind turbines in relation to housing
— [32]

Furthermore, there was a dispute as to whether a ‘plan or programme’ within the meaning of the Directive must cover a defined geographical area (as opposed, in this case, to the entirety of the Walloon Region).

Perhaps unsurprisingly given the CJEU’s general approach to interpretation in relation to the environment and environmental impact assessment, the Court concluded that this order was indeed a plan or programme for the purposes of the Directive such that an environmental impact assessment was required. The steps by which this decision was reached were as follows:

1.        The Court first underlined that, “environmental evaluation is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes”. [38]

2.      Secondly, when interpreting the provisions of the SEA Directive, regard must be had, “to the specific objective laid down in Article 1 of that directive, namely to subject plans and programmes which are likely to have significant effects on the environment to an environmental assessment”. [39]

3.       Finally, in order to ensure that this Directive meets its objective, ‘which is to provide for a high level of protection of the environment, the provisions which delimit the directive's scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly”. [40]

This approach to interpretation has been criticized elsewhere (E Lees, Interpreting Environmental Offences, 2015, Hart Publishing), and this is not the place to repeat that criticism in full. However, two things are worthy of note. Firstly, environmental protection per se is not the only aim of the strategic environmental assessment provisions. When taking a purposive approach to interpretation in this context, therefore, the CJEU takes a very narrow definition of what the purpose of environmental directives may be. This undermines the certainty and predictability of the ensuing approach.

Secondly, the second step of the court’s reasoning here is entirely circular: they attempt to define the meaning of the terms ‘plan’ and ‘programme’ by reference to a goal that plans and programmes are scrutinized for their environmental effects. This, in practice, results in any environmentally significant document becoming a plan or programme for the purposes of the Directive whether or it would naturally be said to meet the linguistic connotations of those words. The effect of this is that even documents which are specifically designed to simply be technical guidance, as this was, are subjected to independent scrutiny even though the real life project of building a wind farm would, in all likelihood, be subject to an EIA itself. This results in duplication of work in an inappropriate context.

Nothing in the document in this case said that wind turbines would be built. If they were to be built, that construction would itself be subject to appropriate assessment. What then is to be gained by separately assessing technical guidance of this sort, other than additional cost and delay? Given that the document was actually attempting to ensure strict environmental standards for the creation of wind turbines, there is a risk that in subjecting each of this kind of document to such scrutiny that we stifle the imposition of high technical standards and innovation.

None of this is to say that either the regulatory order in this case was “good” in environmental terms, or that any wind farm based on this document should be given the go ahead in the absence of a proper environmental review. However, this sort of regulatory order does seem to sit in a very difficult place in the policy to development process: more difficult than, for example, a regional plan which dictates the whereabouts of wind farm development which would be clear in its significance. The counter-argument to this is that in providing technical standards the document affects the environmental performance of a particular development. However, where such a document provides only minimum environmental standards, or perhaps technical guidance rather than being prescriptive, it seems likely that a project-based EIA would suffice without the need for a ‘plan’-based SEA. Or, to put it another way, the document in this case, arguably, was not strategic. 

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