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St. Anthony Cathedral Mineral Fertilizer Terminal Case Waste Incineration Plant

Mineral Fertilizer Terminal Case

The Ecopravo-Lviv's relentless efforts in this case have finally paid off. In November 1997, the High Arbitration Court ruled in favor of Ecopravo-Lviv on its claims that the Ministry of Environment failed to provide adequately public participation during the course of the Ministry's environmental expertise of the project.

The project, a chemical fertilizer terminal to be located in Mykolaiv, was financed by an Irish-Russian-Ukrainian joint venture. On the day the joint venture registered to do business, it donated 30 trams and 30 trolley buses to the city. Local authorities subsequently approved the project, and construction began in August 1995 in violation of environmental laws requiring that an environmental expertise be conducted prior to project approval.

The local Ministry of Environmental Protection and Nuclear Safety (EcoSafety) ordered the company to conduct an environmental expertise of the project, and a prosecutor with the Sanitary Epidemiological Station (SES) ordered the company to stop work. The prosecutor also brought suit against the local administrators who has given and to the company for the terminal. The district court rejected this case on procedural grounds.

The company then submitted the project to the local Ministry office for environmental expertise. However, the company did not publish the environmental impact assessment statement, in violation of the Law on Environmental Expertise. Local ministry officials subsequently rejected the project on grounds that it had unacceptable negative environmental impacts. However, the company then requested the national EcoSafety office in Kiev to review the local EcoSafety office's environmental expertise, and officials in Kiev reached a positive conclusion in their own environmental expertise, overturning the local ministry office's rejection of the project.

Ecopravo-Lviv sued the national EcoSafety office in the High Arbitration Court, claiming that the environmental expertise it has conducted was deficient on procedural grounds. The court dismissed the case three times on procedural grounds before Ecopravo-Lviv was granted a hearing on the substance of its claims.

Ecopravo-Lviv represented two clients in the action filed in the High Arbitration Court: Zelenyi Svit (Green World), an environmental non-governmental organization; and a shipbuilding company that claimed that the health of its workers would be adversely affected by the terminal. More than 10.000 local citizens also signed a petition opposing the project. By the conclusion of the case, this number had increased to 100,000, including the members of representative bodies such as local co-operatives and labor unions.

In its lawsuit, Ecopravo-Lviv claimed that the ministry's expertise was invalid primarily on the following grounds:

• The Ministry failed to require the company to publish the environmental impact assessment statement prior to commencement of the environmental expertise, thereby depriving the public of the opportunity to participate meaningfully in the process.
• Construction of the project began before the ministry completed its expertise. This is strictly prohibited under the Law on Environmental Expertise. This premature construction complicated matters because significant funds has been invested in the project by the time the case reached the courts, making it more difficult for a judge to invalidate the expertise and order that work on the project to be ceases.
• The ministry failed to publish the conclusion of the environmental expertise. A news article announced the expertise has been published post factum, and it differed from the actual conclusion.
• The ministry failed to take public opinion into account as required under the Law on Environmental Expertise. In the face of 100,000 citizens voicing opposition to the project and public expertise that found the project to be unsuitable, the ministry still approved the project.
• The expertise conclusion did not identify the experts who participated in the expertise, thereby depriving citizens of the ability to challenge their qualifications, in violation of the Expertise Law.
• The ministry failed to consider adequately the negative environmental impacts associated with the project, including, but not limited to, possible impacts on endangered species, the surrounding estuary, and pre-existing elevated contaminant levels in the South Bug River. In fact. a representative of the shipbuilding company had recently observed significant numbers of dead fish in the estuary. This was brought to the judge's attention during the hearing. Ecopravo-Lviv has also requested the local prosecutor to investigate the situation.
• Judge G. ruled in favor of Ecopravo-Lviv and ordered the ministry to require the company to cease work on the project. The court exercised its authority under the Law on Environmental Expertise to find the conclusions of the expertise invalid when procedural requirements are violated. The court found that the environmental impact assessment statement was published two months after the expertise was completed, in violation of the public's right to be informed and to participate in the expertise process.

The ministry argued that its failure to publish the EIA statement had not affected the outcome of the expertise because the public had known about the project. The court rejected this argument outright because the Expertise Law does not provide for substitution of the notice requirement. Without notice of the expertise, the court observed, the public could not fully take part in the process.

But this case has not been sold yet. At the end of December 1997 the Ministry of Ecological Protection applied to the arbitrage collegiate for verification of the decision in the way of monitoring.

This case represents a landmark victory for Ecopravo-Lviv on issues fundamental to meaningful public participation in environmental decisionmaking. Not only does the decision uphold the basic principles of participatory democracy; it sends a clear message to governmental officials and citizens that public officials can be held accountable under the law for their actions. The case offers hope for citizens currently suffering violations of their environmental and civil rights, that with perseverance, those rights can be upheld.