Implications of the Protection of the Natura 2000 Network on Plans and Projects : With Special Regard to Renewable Energy Projects

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http://urn.fi/URN:NBN:fi:hulib-202001131052
Title: Implications of the Protection of the Natura 2000 Network on Plans and Projects : With Special Regard to Renewable Energy Projects
Author: Isojärvi, Pia
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingin yliopisto
Date: 2019
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-202001131052
http://hdl.handle.net/10138/309970
Thesis level: master's thesis
Discipline: Ympäristöoikeus
Environmental law
Miljörätt
Abstract: The EU aims for a high level of environmental protection, which includes nature conservation. The key regulatory tools providing the Union’s nature conservation framework are the Birds and Habitats Directives. They establish the Natura 2000 network of protected sites that covers 18% of the land area and 9.5% of the marine area of the EU. Article 6(3) and (4) of the Habitats Directive set an environmental protection mechanism that is applied to project development likely to have a significant effect on a Natura 2000 site. In addition to ambitious environmental protection objectives, the development of renewable energy is a topical issue in the EU. In 2018, the EU updated its renewable energy target for 2030 and is now pursuing to have 32% of its final energy consumption come from renewable energy sources. The expected increase in renewable energy might lead to more conflicts between renewable energy projects and the already extensive Natura 2000 network. This thesis aims to establish the current state of the law regarding the appropriate assessment procedure of plans and projects under Article 6(3) and (4) of the Habitats Directive, and especially the implications it has on renewable energy projects. This means exploring how the interests of nature conservation and the development of renewable energy are balanced. In addition, the thesis will analyse the reasoning of the Court of Justice of European Union (CJEU) in its case-law related to the appropriate assessment procedure. For these purposes, I use legal dogmatic and regulatory theory methods. Even though the Natura 2000 network supports the high-level protection of the environment in the EU, the Habitats Directive does not prohibit all development in the Natura 2000 sites. The CJEU has considered in its case-law that the EU legislature intended to create a protection mechanism that is triggered only if a plan or project represents a risk for a site forming part of the Natura 2000 network. Therefore, even if a project is considered to affect a Natura 2000 site, it is subjected to the Appropriate Assessment only after it has been concluded that it undermines the conservation objectives of a site. The findings of the thesis suggest that Article 6(3) and (4) of the Habitats Directive do provide flexibility for national authorities when authorising plans and projects. The Birds and Habitats Directives prove to be effective in conserving animal and plant species in the EU. Article 6(3) of the Habitats Directive is interpreted strictly by the CJEU, which ensures the effective application of the environmental protection mechanism it provides. Article 6(4) of the Habitats Directive allows derogation from the protection on the grounds of imperative reasons of overriding public interest. The European Commission and the CJEU have been more flexible in the interpretation of the derogation article and have allowed for a wide range of economic activity to be considered to meet the requirements of derogation. The thesis concludes that also renewable energy projects could meet the requirements of public interest on some grounds. The reasoning of the CJEU follows the commonly accepted interpretation methods. The Court has consistently in its case-law adopted a literal interpretation of Article 6(3) HD. In addition, it utilises systematic interpretation and teleological interpretation. The precautionary principle and the principle of sustainable development have also had weight in the Court’s reasoning.


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