By Pia Pehrson, partner, and Pelle Stubelius, associate; Foyen Advokatfirma
Sweden will soon have a government which will have a greater focus on environmental matters. There are a number of legislative actions that need to be focused on, but there are also some propositions that should be disregarded.
The first matter that requires urgent attention is the protection of species which is regulated by the Swedish Species Protection Ordinance. Because of today´s rules the expansion of wind power is often unjustifiably prevented and infrastructural projects delayed. The protection of birds, fish and a number of other species has due to an unclear implementation of the EU Habitats Directive and the Birds Directive lead to unreasonable consequences.
According to a literal interpretation of the Swedish species protection legislation, some bird species have been given a protection even more extensive than the protection of Natura 2000 areas. A single one of a certain protected species is enough to prevent wind power, ski shuttles or houses to be built in the area. At the same time, the application of the rules are deficient.
The progress of the forestry is not considered a species protection matter, nor is the fact that a number of birds are killed daily due to the rail road traffic.
In March 2014 the former Swedish Environment Minister Lena Ek appointed an inquiry which was to review the Species Protection Ordinance since many complaints had been made by authorities as well as the trade and industry regarding the unclear implementation. The inquiry was however not provided with any responsible investigator, nor did the government present any other alternatives and due to this we have now lost more than six months’ time as the inquiry has not even begun. It is furthermore well known that even though changes are decided on, it takes time until the changes have any impact on case law. In the meantime we will probably have to witness a number of wind power projects being stopped or reduced.
Another matter which requires a legal reform is the rules regarding responsibility for remediation of polluted land and water. Today´s system looks good on the surface; the polluter is responsible for paying the remediation and has an environmental responsibility which is eternal. In reality however, this responsibility strikes hard against private property owners and entrepreneurs. The purpose of today´s rules is that someone else other than the State shall bear the costs for remediation of polluted land or water. Anyone within the circuit of operators or, alternatively, property owners can however be pointed out and have to bear the costs for investigation and remediation in the first stage.
According to the current system, the so called “deepest pocket principle” is applied. Who has actually caused the damage is not taken into account. The Environmental Protection Agency does not have sufficient funds to carry out remediation of industrial areas where a number of old pollutions have been mixed together, and where it is uncertain who is responsible for what. These areas are at the same time attractive for building new houses, offices, power lines, etc.
Today´s 10th Chapter of the Environmental Code provides a situation which is unpredictable and legally uncertain for as well property owners and infrastructure operators. Electricity suppliers are for example often forced to bear the costs for environmental remediation, since they are obligated to build cables in polluted areas in order to fulfil their obligations to connect new customers, according to the Electricity Act. The risk of being required to pay for environmental remediation also affects a number of building-, industrial- and infrastructural projects negatively.
The new Environment Minister therefore needs to address this issue. The environmental protection will not be threatened by clearer rules which offers a reasonable balance between social development and protection of natural values. If we want more people to live in the cities, resources need to be invested so that remediation can be carried out without forcing private parties to bear unreasonable costs.
Solving the questions mentioned is more important than trying to get hydroelectric power stations that have been running for a long time to pay for new environmental assessments. When it comes to environmental matters it is therefore a matter of priority, and of increasing the predictability for everyone involved.
First published in the Swedish newspaper Svenska Dagbladet, October 1st 2014.
