1. Introduction

The construction of hydropower projects worldwide is rapidly increasing, with significant environmental and social impacts. In the European context, especially small hydropower projects are widely promoted for providing cheap, green energy at relatively low investment costs. This happens despite growing evidence about the disastrous ecological damage these plants cause to rivers and streams and despite a clear overestimation of their energy contribution.

Moreover, existing legal procedures and environmental impact assessment provisions have regularly been found to be sidestepped or not properly implemented to make way for the rapid construction of hydropower stations. For years, activists and civil society organisations in Europe have been arguing against the further damming of rivers, especially of the remaining undisturbed, free-flowing rivers such as those found in South-Eastern Europe. International and EU environmental legal provisions have emerged as valuable tools to challenge the construction of new hydropower projects.

The aim of this toolkit is to provide activists and civil society organisations an easy, accessible overview of EU and international legislation that can be used when considering a legal procedure against the planning or construction of new hydropower plants in ecologically sensitive areas.

This toolkit is meant to support those without a legal background to understand the possibilities for legal action. The toolkit provides an overview of most relevant (EU and international) environmental legislation that is, or can be applicable for obtaining a permit for the construction of hydropower plants. The toolkit presents a step by step process for each Directive and convention mentioned to be followed when a permit for a hydropower plant is requested.

This step by step procedure can also be used by those who want to make an assessment about whether all legal steps have been followed when a permit has been issued and whether there are flaws in the procedures applied. It goes without saying that when based on a first screening a legal case seems worthwhile pursuing, legal expertise is required to make a final assessment about the possible successes of filing a lawsuit. Examples of legal cases including legal arguments will be presented to elucidate the possibilities for starting a procedure.

The toolkit starts with providing information about a number of EU environment Directives including:

  • The Environmental Impact Assessment Directive (EIA Directive). Basically, any project, likely to have significant effects on the environment needs to be preceded by an Environmental Impact Assessment, which needs to show what the impact of the given project is on the environment. The EIA Directive offers private persons and organisations ample opportunities to become involved and express their opinions and views. Although opinions and comments have to be “taken into account” by the competent authority, they are not binding. However, eligible persons and organisations have right to challenge procedural and substantive ( content) elements of decision-making.
  • The Strategic Environmental Assessment Directive (SEA Directive). The procedure is rather similar to the EIA but does not relate to projects but to plans and programmes adopted by parliaments and councils at local, regional and national level. These plans and programmes, however, pave the way for concrete investments and projects and are for that reason very relevant. Unlike the EIA Directive, the text of the SEA Directive does not provide for a review procedure before a court to challenge the substantive or procedural legality of plans and programmes.
  • Birds and Habitats Directives. The aim of these Directives is to protect species and habitats in the EU. Based on the Habitats Directive and its Annexes each Member State compiles a list of habitat types and species for which it will designate protected areas, so-called Natura 2000 sites. Any plan or project inside or outside of a Natura 2000 site, which will have a significant negative impact on the conservation status of those species and habitats is not allowed (with an exception for some specific situations). If there is a likelihood that a plan or project has a negative impact, an Appropriate Assessment has to be carried out, and in case the project impacts the conservation status of the species and habitats of the site, the competent authority has to refuse the permit unless certain conditions are met. Individuals have a right to challenge before national courts plans or projects likely to have a significant effect on Natura 2000 sites.
  • The Water Framework Directive (WFD). It aims at bringing all water bodies in the European Union into good ecological status and preventing further deterioration of any status. Or, in case the water body is already heavily modified, good ecological potential. However, for hydropower plants there is a way to issue permits despite this overall objective, through article 4(7) of the Directive. According to Article 4(7), exemptions can be approved by the authorities for new modifications and sustainable human development activities, which result in the deterioration of the status of the water body or which prevent the achievement of good ecological status or potential. The text in the related chapter indicates what can be done to check whether the right procedures for issuing a permit have been followed and what opportunities exist to challenge the decision by a competent authority.
  • The Environmental Liability Directive (ELD). The ELD imposes liability on an economic operator for preventing and remediating an imminent threat of, or actual, environmental damage. The operator can be held accountable for the environmental harm they have caused, based on so called “polluter pays” principle.

The toolkit will also provide information about the possibility to lodge a complaint about a breach of EU law by authorities in an EU Member State. EU Member States are obliged to follow EU values, including the rule of
law 1 , and adhere to the acquis communautaire. 2   According to the EU treaties, the Commission may take legal action – an infringement procedure – against an EU country, which fails to implement EU law.

Relevant for the construction of hydropower dams in the EU’s neighbouring countries is the Energy Community Treaty. The key objective of the Energy Community is to extend the EU internal energy market rules and principles to countries outside of the EU (e.g. South-East Europe, the Black Sea region), on the basis of a legally binding framework. The parties to the Treaty committed themselves to implement the relevant EU law, to develop an adequate regulatory framework and to liberalise their energy markets in line with the acquis under the Treaty.

Last but not least, the toolkit will present information about three international conventions, whose application goes beyond the borders of the European Union. These are:

  • the Aarhus Convention, which stands on three “pillars”: access to information on environment, public participation in environmentally relevant decisions and access to justice;
  • the Espoo Convention and the Kyiv (SEA) Protocol, the Espoo Convention obliges the Parties to assess the environmental impact of certain activities at an early stage of planning, and to notify and consult each other on all major projects under consideration, which are likely to have a significant adverse environmental impact across national boundaries; the Kyiv Protocol requires its Parties to evaluate the environmental consequences of their official draft plans and programmes;
  • the Bern Convention, covering most of the natural heritage of the European continent and extending to some states of Africa, which aims at protecting wild flora and fauna, their natural habitats and endangered migratory species

There is obviously a big difference between EU Member States and non-EU countries in the legislation that is applicable and thus in the procedures that have to be followed when building a hydropower plant. For EU Member States the EIA Directive, the Birds and Habitats Directives and the Water Framework Directive can be powerful tools to challenge the issuing of permits. Although the Energy Community Treaty is meant to extend EU legislation related to energy beyond EU countries, the acquis on environment is limited to the EIA Directive, the Article 4 of Birds Directive, the SEA Directive and the Environmental Liability Directive. It does not cover the Habitats Directive, the rest of the Birds Directive, nor the Water Framework Directive.

Finally, the toolkit only presents the legal framework and the complaint mechanisms that can be used directly by private persons and non-governmental organisations at the EU and international level.

Annex I presents a checklist on EU environmental law concerning hydropower plants that can be used to check whether the right procedures have been followed.

Guidance for the reader

Although we have tried to make the text accessible to the layman, it is unavoidable to use legal phrases. And in any case it requires time and perseverance to assess whether the right procedures have been followed for issuing a permit for a hydropower dam in a certain situation. Apart from assessing whether the right procedures have been followed also content wise (the “substance”), the permit may have been issued unjustified for instance because of not using the latest information or simply avoiding available information. Thus, next to legal knowledge the screening of the legality of permits will require technical and scientific knowledge.

Note that for EU countries all EU Directives have to be transposed into national legislation and thus national procedures should be similar one to another. Only in areas not covered by the EU Directive national procedures may differ per country.

Starting with assessing whether the Environmental Impact Assessment has been carried out comprehensively and in accordance with national and EU legislation will serve to be useful as a first step.

When a planned hydropower or dam has impacts across the border either downstream or upstream, the EIA Directive and the Espoo Convention require that neighbouring and other affected countries become involved in the procedure and should be invited to express their opinion. This possibility for involvement in the EIA also applies to environmental NGOs in the affected country.

Next, the Habitats Directive and the EU Water Framework Directive are important pieces of legislation that come into the picture when a hydropower plant is being planned. For both Directives, separate procedures have to be followed before permits can be issued. In addition, mind that the Habitats and Birds Directives are not only relevant when a hydropower plant is proposed in an area that is protected under one of the two Directives. Also, damage done to the species and habitats from outside the borders of a protected area (Natura 2000 site) needs to be taken into account. For the Habitats and Birds Directives, the procedure laid down in Articles 6(3) and 6(4) need to be followed and for the EU Water Framework Directive Article 4 is the most important.

The Infringement Mechanism of the European Commission is meant to ensure proper implementation and enforcement of EU Directives, i.e. the acquis communautaire. The Commission identifies possible infringements of EU Directives on the basis of its own investigations or following complaints from citizens, businesses or other stakeholders.
The European Commission can only take up the complaint if it is about a breach of Union law by authorities in an EU country (not by a private individual or body).

The Energy Community is relevant for non-EU Member States in South-East Europe, the Black Sea region and beyond. It is meant to extend the EU internal energy market rules and principles to non-EU countries on the basis of a legally binding framework. The parties committed themselves to implement the relevant EU law (acquis communautaire), to develop an adequate regulatory framework and to liberalise their energy markets in line with the acquis under the Treaty. The Energy Community is especially meant to create a level playing field for energy producers and prevent unfair competition.

In a situation where damage has been caused to the environment by an already functioning hydropower plant, the Environmental Liability Directive comes into play.

The Aarhus Convention establishes a number of rights of the public (individuals and NGOs) with regard to the environment. The Convention is based on three pillars: Access to environmental information, public participation in environmental decision-making and access to justice.

footnote 67

Convention on the Conservation of European Wildlife and Natural Habitats,
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/104

footnote 64

Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects: http://ec.europa.eu/environment/eia/pdf/Transboundry%20EIA%20Guide.pdf

footnote 63

Guidance on Public Participation in Environmental Impact Assessment in a Transboundary Context: https://www.unece.org/fileadmin/DAM/env/documents/2006/eia/ece.mp.eia.7.pdf

footnote 62

Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects: http://ec.europa.eu/environment/eia/pdf/Transboundry%20EIA%20Guide.pdf

footnote 54

United Nations Economic Commission for Europe, The Aarhus Convention: An implementation guide, 2014

footnote 50

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 (transposition by 1 January 2018 and implementation by 31 March 2018)

footnote 49

Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, as amended by Directive 2006/21/EC, Directive 2009/31/EC and Directive 2013/30/EU (implementation by 1 January 2021)

footnote 48

Directive 79/409/EEC of the Council of 2 April 1979 on the conservation of wild birds (implementation on the entry into force of the Treaty i.e. 1 July 2006)

footnote 47

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directives 97/11/EC of 3 March 1997 (implementation on the entry into force of the Treaty i.e. 1 July 2006), Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (implementation by 14 October 2016) and Directive 2014/52/EU (implementation by 1 January 2019)

footnote 40

The habitats and species concerned are defined by reference to species and types of natural habitats identified in the relevant parts of the Birds Directive and the Habitats Directive. The scope of the ELD is not restricted to the Natura 2000 network. The species mentioned in ELD which occur outside the SACs and SPAs and even migratory species are also included

footnote 39

The significance of any damage that has adverse effects on reaching or maintaining the favourable conservation status of habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services provided by the amenities they produce and their capacity for natural regeneration. Significant adverse changes to the baseline condition should be determined by means of measurable data such as:

  • the number of individuals, their density or the area covered;
  • the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat (assessed at local, regional and higher level including at Community level);
  • the species’ capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat’s capacity for natural regeneration (according to the dynamics specific to its characteristic species or to their populations);
  • the species’ or habitat’s capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Damage with a proven effect on human health must be classified as significant damage. The following does not have to be classified as significant damage:

  • negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in question;
  • negative variations due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators;
  • damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

footnote 38

Damage took place not earlier than 30 April 2007 or the activity causing the damage was finished not earlier than 30 April 2007, or less than 30 years have passed since the emission, event or incident, resulting in the damage, occurred

footnote 32

See C-664/15, Protect, paragraph 81

footnote 31

See C-664/15, Protect, paragraph 102

footnote 30

CIS Guidance no 36 Exemptions to the Environmental Objectives according to Article 4(7):
https://circabc.europa.eu/sd/a/e0352ec3-9f3b-4d91-bdbb-939185be3e89/CIS_Guidance_Article_4_7_FINAL.PDF

footnote 28

See C-461/13, Bund für Umwelt und Naturschutz Deutschland e.V. v Bundesrepublik Deutschland

footnote 27

This includes new modifications to the physical characteristics of a surface water body, alterations to the level of groundwater, and new sustainable human development activities

footnote 24

See C-127/02, Waddenzee, paragraphs 66 – 70. In case C-243/15, the Court of Justice also confirmed that decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43 (whether they concern a request to participate in the authorisation procedure, the assessment of the need for an environmental assessment of the implications of a plan or project for a protected site, or the appropriateness of the conclusions drawn from such an assessment as regards the risks of that plan or project for the integrity of the site, and whether they are autonomous or integrated in a decision-granting authorisation) are decisions, which fall within the scope of Article 9(2) of the Aarhus Convention

footnote 23

Guidance on the requirements for hydropower in relation to Natura 2000, p. 70: http://ec.europa.eu/environment/nature/natura2000/management/docs/Hydro%20final%20May%202018.final.pdf

footnote 22

Guidance on the requirements for hydropower in relation to Natura 2000: http://ec.europa.eu/environment/nature/natura2000/management/docs/Hydro%20final%20May%202018.final.pdf

footnote 21

See C-127/02, Waddenzee, paragraphs 66 – 70. In case C-243/15, the Court of Justice also confirmed that decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43 (whether they concern a request to participate in the authorisation procedure, the assessment of the need for an environmental assessment of the implications of a plan or project for a protected site, or the appropriateness of the conclusions drawn from such an assessment as regards the risks of that plan or project for the integrity of the site, and whether they are autonomous or integrated in a decision-granting authorisation) are decisions, which fall within the scope of Article 9(2) of the Aarhus Convention

footnote 20

See, C-243/15, Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín (Slovak Bears II), para 46-49

footnote 18

See Commission Notice on Access to Justice in Environmental Matters, https://ec.europa.eu/environment/aarhus/pdf/notice_accesstojustice.pdf

footnote 17

See C-474/10 – Seaport (NI) and others, paragraphs 45 and 50

footnote 16

See C-295/10, Valčiukienė and Others, paragraphs 44-47 and 53

footnote 13

Environmental Impact Assessment of Projects Guidance on the preparation of the Environmental Impact Assessment Report: http://ec.europa.eu/environment/eia/pdf/EIA_guidance_EIA_report_final.pdf

footnote 12

See C-75/08, Mellor, paragraph 64

footnote 10

See C-66/06, Commission v Ireland, paragraph 64

footnote 11

See C-87/02, Commission v Italy, paragraph 49

footnote 09

See for example C-66/06, Commission v Ireland; C-255/08, Commission v Netherlands; C-435/09, Commission v Belgium

footnote 02

The EU’s ‘acquis’ is the body of common rights and obligations that are binding for all EU Member States. It constantly evolves and comprises: the content, principles and political objectives of the Treaties; legislation adopted in application of the treaties and the case law of the Court of Justice of the EU; declarations and resolutions adopted by the EU; measures relating to the common foreign and security policy; measures relating to justice and home affairs; international agreements concluded by the EU, as well as those concluded by EU countries between themselves in fields relevant to the EU’s activities.
(https://eur-lex.europa.eu/summary/glossary/acquis.html)

footnote 01

The rule of law is one of the EU’s fundamental values. It is the idea that both the EU itself and all EU countries are governed by a body of law (legal codes and processes) adopted by established procedures, rather than discretionary or case-by-case decisions.
(https://eur-lex.europa.eu/summary/glossary/rule_of_law.html)

footnote 01

The rule of law is one of the EU’s fundamental values. It is the idea that both the EU itself and all EU countries are governed by a body of law (legal codes and processes) adopted by established procedures, rather than discretionary or case-by-case decisions.
(https://eur-lex.europa.eu/summary/glossary/rule_of_law.html)

footnote 02

The EU’s ‘acquis’ is the body of common rights and obligations that are binding for all EU Member States. It constantly evolves and comprises: the content, principles and political objectives of the Treaties; legislation adopted in application of the treaties and the case law of the Court of Justice of the EU; declarations and resolutions adopted by the EU; measures relating to the common foreign and security policy; measures relating to justice and home affairs; international agreements concluded by the EU, as well as those concluded by EU countries between themselves in fields relevant to the EU’s activities.
(https://eur-lex.europa.eu/summary/glossary/acquis.html)