Environmental Impact Assessment (EIA) In Turkish Environmental Laws

Orhan Yavuz Mavioglu & Bora Eruçman
ADMD Law Office / Istanbul, 2021

I. INTRODUCTION

Environmental Impact Assessment (EIA) is a principle developed on the idea that the use of resources spent to clean, repair and re-balance a polluted or destroyed environment after the fact, being less efficient than the use of resources spent for prevention of the negative impacts concerning the investments for development at the beginning.

In this regard EIA, may be defined as a process covering different stages of different time periods, aiming to detect the hazardous environmental impacts and measures that can be taken to keep them at an acceptable level for some investments and to prevent environmentally unfavorable ones by demonstrating that such negative impacts may not be mitigated.

II. BACKGROUND

The first legislation involving EIA was in the United States, within the National Environmental Policy Act (“NEPA”) adopted on January 1, 1970. Until NEPA, environmental protection measures in the US, was essentially assigned to the federal States and no regulation was set forth in a federal level.

During 1960s, lobbying activities of various pressure groups were willing to draw attention to the importance of the environment and the damage caused by humans to nature, in other words the "green" opposition, raised awareness among people and politicians regarding protection of environment (Saygılı, 2007) . As a consequence US legal system reacted to such opposition by NEPA. Obtaining an EIA report from federal administrations reviewing adverse impacts on the environment of an investment was introduced as a requirement with NEPA.

Introduction of EIA in Turkey was with the enactment of the Environmental Law (“Environmental Law”) No. 2872 on August 9, 1983. Under Article 10 of the Environmental Law, operating institutions, organizations, and enterprises that are in the realm of a possibility of causing environmental problems due to activities they plan to carry out are obliged to obtain an EIA report. Environmental Impact Assessment Regulation (“EIA Regulation”) legislated to implement the EIA into practice entered into force after a 10-year delay on February 7, 1993. Even though there was a legal basis for EIA in this period of first 10 years (1983-1993), the implementation of the EIA was suspended in practice. The EIA Regulation dated 1993, was further amended 7 times in 1997, 2002, 2013 and 2014. The EIA Regulation in force today is dated November 25, 2014 and this Regulation was amended for another 6 times in 2016, 2017, 2018 and 2019.

III. LEGAL FRAMEWORK OF EIA

i. 1982 Constitution

The framework of the EIA is based on the right of environment. The subject of the right of environment covers the biosphere in which all living organisms of earth live and interact with in short or long term.

The right of environment is a third generation right of solidarity, is regulated under Article 56 of the Constitution titled “Health services and protection of the environment” as “Everyone has the right to live in a healthy and balanced environment. It is the duty of the State and citizens to improve the natural environment, to protect the environmental health and to prevent environmental pollution”. The Constitution imposes duties on the State and its citizens regarding environmental protection. The State is obliged to prevent pollution and this obligation consists of a passive obligation to comply with the law and an active obligation to take the necessary measures to protect the environment (Saygılı, 2007)

ii. Environmental Law No. 2782

According to the Article 2 of the Environmental Law titled “Definitions”; EIA is defined as “Studies to be carried out in the determination of positive or adverse effects on the environment, of the Project planned to be developed, in determination and assessment of the measures to be taken for preventing the adverse effects or minimizing these effect in a way that will not harm the environment and of the chosen place and technological alternatives and in monitoring and controlling of the implementation of the projects".

The legal basis of the EIA is established at Article 10 of the Environmental Law titled “Assessment of Environmental Impact” as “Institutions, organizations and establishment that may cause environmental problems as a result of their activities that they are planning to carry out, are liable to prepare an Environmental Impact Assessment Report or a Project Information File. Unless Environmental Impact Assessment Affirmative Decision or a Decision of Environmental Impact Not Required is taken, approval, consent, incentive, construction and use permits shall not be granted for the projects, investments shall not be initiated and tendered by contracts.”. Therefore, various activities that may cause environmental issues are subjected to the EIA process and these activities shall not be initiated until the EIA process is finalized.

In terms of the activities included in the EIA Regulation, the decision of “EIA Positive” or “EIA Not Required” is regulated as a prerequisite for starting the activities. The law stipulates certain measures and penalties for projects that initiates construction or started operation before the finalization of the EIA process. Considering the Article 15 of the Environmental Law and the Article 19 of the EIA Regulation, the activities initiated without conducting EIA inspection, shall be suspended by the Ministry while the activities initiated without preparing the Project information file shall be terminated by highest administrative officer at such district.

iii. EIA REGULATION

The objective of the EIA Regulation in force is to regulate the administrative and technical procedures and principles to be followed in the EIA process. According to the EIA Regulation, the EIA process is composed of three stages namely screening, scoping, and monitoring processes (Serter, 2006).

The screening stage is a process for the categorization of projects that require an EIA Report and the ones that do not. The objective of this screening process is to decide whether the project to be included in the EIA process or not by assessing the dimension of the environmental impacts of the activities or activities within such project and to determine whether these are important for the protection of the environment. Thus, it is targeted to prevent both the investor and the responsible institutions, organizations, and persons from spending unnecessary time, effort, and money in the EIA process.

On the other hand, the scoping stage is a process of determination of the scope of the EIA report to be prepared. The content of the EIA report to be prepared for projects related to activities in different sectors and areas and the EIA processes to be operated in accordance with these activities will vary.

The monitoring stage is the final stage of EIA process. Although the EIA Report is a scientific document, it also includes certain undertakings. The fulfillment of these undertakings in the EIA process
is tested during the monitoring process.

IV. EIA PROCESS

First and foremost, it is necessary to determine whether an activity is subject to EIA by subjecting it to the screening process. Pursuant to Article 7 of the EIA Regulation titled “Projects subjected to the environmental impact assessment”, it is mandatory to prepare an EIA Report for the projects stated in the Annex-1 List and the projects for which “EIA Required” decision is made, and the projects considered out of scope in the case of planning a capacity increase and/or expansion equal to or exceeding the thresholds in Annex-1, together with the total of existing capacity and capacity increases.

If the activity is subjected to EIA, pursuant to Article 8 of the EIA Regulation titled “Initiating the environmental impact assessment process and the formation of the commission”, the EIA process shall resume. Project owners, who will be subject to the EIA, shall prepare the EIA Application File regarding the EIA General Format stated in Annex-3 through the institutions/organizations authorized by the Ministry within the scope of the “Communique on Qualification Certificate for Environmental Impact Assessment Report” and these documents are submitted to the Ministry of Environment and Urbanization.

The Ministry examines the consistency of the information and documents in the application file to the EIA General Format. In the case that an inconsistency is detected by the Ministry, the EIA Application File is remanded for completion.

If the EIA Application File complies with the EIA General Format, a commission consisting of representatives of relevant public institutions and organizations, Ministry officials, project owners and institutions/organizations authorized by the Ministry is established by the Ministry considering the information in the application file. The duty of this commission is to determine the scope of the Special EIA Format to be issued for the project in the upcoming stages and to review and evaluate the prepared EIA Report. The Ministry and the Governorship of the district shall announce that the EIA application file is made public so that the first step of the process that forms the basis of the participatory nature of EIA shall be taken.

Under Article 9 of the EIA Regulation titled “Public participation meeting”, the meeting to be held to receive opinions and suggestions of the public who are affected by the planned project or who are likely to be affected, is held at the place and date determined by the Ministry. In addition, a time-frame for the opportunity to consolidate and convey the opinions and suggestions of the public even after the meeting in proper ways and format are also announced.

The Ministry drafts the EIA Report Special Format in line with the opinions and suggestions of the Commission following the public participation meeting and the scoping process is initiated. EIA Special Format is a format that defines the important environmental aspects of the project specified by the Commission and the issues which ought to be addressed by taking into consideration the opinions and suggestions in the public participation meeting to be taken as a basis in the preparation of the EIA Report. The Special Format shall be submitted by the Ministry and the institutions/organizations which are authorized by the Ministry are obliged to submit the EIA Report to the Ministry within twelve (12) months.
Once drafted, the EIA Report is submitted to the Ministry for evaluation. During this evaluation, the Ministry decides whether the EIA Report is consistent with the Special Format and whether it is prepared by the professional experts who should be a part of the specified working group. In the case that the EIA Report passes this evaluation, an official letter stating the location and the date of the meeting is sent to the members of the Commission to hold a review and evaluation meeting. At this stage, the EIA Report is shared with the public to obtain the opinions and suggestions. The opinions submitted to the district Governorship are conveyed to the Ministry and are to be reflected into the EIA Report.

The EIA report, in which no deficiencies are determined or whereas such deficiencies are corrected shall be evaluated by the Commission at the evaluation and assessment meeting. At this stage it is examined and evaluated whether the report and its annexes are sufficient and appropriate, the details of the project are based on sufficient data, project’s potential impact on the environment have been thoroughly evaluated, necessary measures are taken for possible adverse environmental effects and the opinions or suggestions of the public are taken into account.

The report finalized by the Commission, is submitted to the Ministry by the authorized institution or organization. If a deficiency is detected by the Ministry, the report shall be returned to the authorized institution or organization for corrections. The finalized EIA report is made publicly available for ten (10) days to gather the opinions and suggestions of the public once more. The Ministry or the district Governorship decides whether the Project in question receives a “EIA Positive” or “EIA Negative” decision by considering the opinions and suggestions of the people.

Projects with a Negative EIA decision are projects which are considered harmful in terms of the environment due to them having possible negative effects. Investments concerning these projects cannot be followed through. For projects that received a Positive EIA decision, investment should be initiated within seven (7) years; if not, the EIA process shall be restarted.

In terms of projects included in the Annex-2 List or evaluated as out of scope; projects where a capacity increase and/or expansion is planned in which the capacity will be equal to or above the capacity thresholds in Annex-2 with the total of the existing capacity and capacity increase shall obtain an “EIA Required” or “EIA Not Required” decision which subjects them to selection and screening phases according to Article 15 of the Regulation. A project promotion file is prepared by the authorized institutions or organizations for these projects. The Ministry evaluates the promotion file in accordance with Annex-4 of the Regulation and decides whether a project receives "EIA Required" or "EIA Not Required" decision.

For projects that received a “EIA is Required” decision, it is mandatory to follow the EIA process explained above and obtain an “EIA Positive” to initiate investments. In terms of projects that receive an "EIA Not Required" decision, investments should be initiated within five (5) years; otherwise, the EIA decision shall become invalid.

The monitoring process shall be initiated by the Ministry for projects that received an "EIA Positive" or an "EIA Not Required" decision. The EIA Reports are like undertakings by their nature because, the owner of the activity that receives an EIA Report undertakes the measures to be taken regarding the environmental effects of the activities. According to Article 19 of the Regulation, in the case that it is determined that the project owner does not comply with the undertakings made regarding the final EIA Report or Project Promotion File, the Ministry or the district Governorship may allow a time-frame for one (1) time to the project owners to comply with the undertakings which shall not exceed one (1) year. If the undertakings are not met within this time, the investment shall be suspended and the decision regarding its suspension shall not be lifted until the project meets the undertakings. In addition, according to Article 20 of the Environmental Law, an administrative fine shall be issued to the project owners for each violation.

V. COUNCIL OF STATE AND CONSTITUTINAL COURT DECISIONS ON EIA

In practice, one of the most important issues in the lawsuits filed against "EIA Positive" or "EIA Not Required" decisions is the determination of whether the plaintiff has legal standing to file lawsuit or not. The Council of State seeks a certain degree of interest between the action to be sued and the person to file a lawsuit, due to the reason that filing an action for annulment by anyone against any administrative act causes instability in administrative actions and this causes a negative impact on the functioning of the administration. Such interest relationship is required to be personal, legitimate and up-to-date. The 6th Chamber of the Council of State defines this issue as the following (in its decision numbered 2019/12197 E. and 2019/7697 K): “In order to determine whether an administrative action violates the interest of the plaintiff the action shall; affect the plaintiff, that is, violate the personal interests of the plaintiff, and there shall be a serious and reasonable relationship between the action and the plaintiff. Otherwise, individuals shall have the right to file an action for annulment regarding administrative actions that do not affect themselves and do not violate their interests which will negatively affect the functioning of the administration. “Legal standing to sue”, which is one of the prerequisites for an action for annulment case, shall be determined by the administrative jurisdiction according to the characteristic of the decision.”

In this context, the practice of the Council of State in determining whether the interests of the plaintiffs are affected in action for annulment cases including real persons, is that the plaintiffs who do not reside in the area where the construction of the project is planned or those who do not own immovables, do not have legal standing to sue. As a matter of fact, this issue was emphasized as the following in the aforementioned decision: “On the other hand; in action for annulment cases with regard to the Environmental Impact Assessment decisions, it is necessary to determine to what extent the interests of the plaintiffs are affected, and the acceptance of the existence of a relationship of interest with those who do not reside or do not have immovables in the area where the projects are planned will result in the constant pressure of litigation towards those who are concerned with the administrative action. This situation is in contradiction with the principle of legal predictability and administrative stability, which are the most important elements of the rule of law.”

In these cases, whether the plaintiffs reside or have immovable property in the relevant region is determined by examining the records of the National Judicial Network Portal (UYAP). If the plaintiffs reside in the relevant region or own immovable property according to UYAP Records, the existence of their legal standing to sue shall be accepted.

However, this practice may change due to recent precedent. In another dispute regarding this issue, a lawsuit was filed against the Wind Power Plant located by near the immovables owned by the plaintiffs demanding the annulment of the "EIA Not Required" decision. The Administrative Court and Council of State rejected the case on the grounds that the immovables owned by the plaintiffs were not located within the boundaries of the project area therefore the plaintiffs did not have legal standing to file a lawsuit. Based on an individual application, the case made to the Constitutional Court which decided that; the interpretation of the Administrative Court and the Council of State regarding the application of the applicants' interest assessment and the relevant procedural rules concerning action for annulment case as a disproportionate interference with the right to access the court and decided that the right to access the court under the right to a fair trial, which is guaranteed by Article 36 of the Constitution, was violated. In the decision (which was published on the Official Gazette dated May 12, 2020 and numbered 31125); this is stated as the following: “The decisions of the courts of instance include a categorical approach that, regardless of the subjective conditions such as the plaintiffs' properties being close to the project area or the purpose of use, those who do not own property in the project area may not file a lawsuit concerning the project under any circumstances. This interference with the applicants' right to access to a court is disproportionate, as this approach makes it impossible for potentially affected people to file a lawsuit.”

Again, contrary to the earlier precedent of the Council of State; in an action for annulment application to the "EIA Positive" report issued to the Akkuyu Nuclear Power Plant, the Plenary Session of the Administrative Law Chamber (PSALC) decided that, if the subject of a project is a nuclear power plant, every citizen living in the country has legal standing to sue even if they do not reside in the region or own any immovable property (with its decision numbered 2015/3251 E. and 2015/3205 K). The decision expressed that: “Since the impact of Nuclear Power Plants on the environment is not limited to the region where the project will be carried out, meaning that it covers a wider impact area than other projects, it is necessary to accept that everyone, as a citizen living in the country, has an interest in the action subject to file a lawsuit.”

In terms of interested associations (a type of NGO’s) who frequently file lawsuits against “EIA Positive” and “EIA Not Needed” decisions; the Council of State decided that associations can file a suit for annulment in matters related to their field of activity and objectives specified in the association's bylaws. As a matter of fact, in the decision of the 14th Chamber of the Council of State (numbered 2012/9094 E. and 2013/7096 K). This was expressed as the following: “In this case, it is understood that the action related to the environmental impact assessment process of the Akkuyu Nuclear Power Plant Project is an action that directly affects the field of activity and objectives specified in the bylaws of the plaintiff association, and the plaintiff, who has an up-to-date and legitimate interest to the case, has legal standing to file a lawsuit. Therefore, the decision of the Administrative Court which is the subject of this appeal does not have a legal basis for the rejection of the case in term of standing.”

Similar change is also being experienced for other interested parties filing lawsuits on the subject. In its earlier decisions the Council of State decided that professional organizations which have public institution status has legal standing to sue only limited to their area of duty. In a case filed by one of the Bar Associations, the decision of the 14th Chamber of the Council of State (numbered 2011/13742 E. and 2011/796 K) stated that: “It is obvious that if the Bar Association is subjected to proceedings that do not concern the profession of lawyers and that do not protect the common interests of the lawyers, these lawsuits will be rejected due to the absence of legal standing.”. In another case where the Provisional Article 3 of the EIA Regulation of 2008 was extended until 2015 within the amendments in the Regulation even though the PSALC decided to suspend the execution and the 6th Chamber of the Council of State ordered a partial annulment of the provision; the İzmir Bar Association requested the annulment of the provision which extended the exemption. The initial action for the annulment application was rejected by the 14th Chamber of the Council of State stating that the lawsuit does not affect the legitimate, personal, and current interests of the Bar Association. However, in the appeal this decision was reversed in accordance with the decision of PSALC (numbered 2011/2123 E. and 2013/4686 K.) above mentioned. PSALC decision refers to the principles of “the rule of law” and "fulfillment of judicial decisions" noted in Article 138 of the Constitution and stated that the Bar Associations’ have legal standing expressing: “Since the Bar Associations are obliged to protect and defend the rule of law, it should be accepted that the Presidency of the Izmir Bar Association has an interest in terms of action for annulment of the proceedings claiming that judicial rulings are not implemented. Therefore, the decision regarding the rejection of the case in terms of legal standing to be sued was wrong.”

Another problem in practice arises when an action for annulment of a report obtained in accordance with the Regulation in force at the time being now subject to a new Regulation with updated terms and whether the previous decisions taken vest a right to the investor for the future. The 14th Chamber of the Council of State (with its decision numbered 2014/390 E. and 2015/7788 K.) ruled in favor of the investor stating that: “It was concluded that there was no unlawfulness in the subject matter transaction and there was no legal basis in the decision of the Administrative Court which annulled the transaction subject to the lawsuit since; the general rule is that the judgement must be made as of the date when the subject matter transaction was established and river-type power plants with an installed power of 10 MW or more are subject to Selection and Elimination Criteria according to the Environmental Impact Assessment Regulation in effect on the date of the process, which was published on the Official Gazette 16.13.2003 numbered 25318, hydroelectric power plants under this value are excluded from the scope of the EIA Regulation without being subject to Selection and Screening Criteria, the installed power of the hydroelectric power plant intended to be established by the intervening Company is 2.06 MW which is below 10 MW. On the other hand; against the fact that, the regulation changes made after the date of the transaction bring forth the rule stating that the provisions of the Regulation in force on the date of application will be applied to the projects that have been submitted a EIA Application File/Project Promotion File before the effective date and the plaintiff Company having vested rights in this context; it was concluded that there was no unlawfulness in the subject matter transaction, and there was no legal basis in the decision of the Administrative Court which annulled the subject transaction.”

In another lawsuit PSALC filed for the annulment of a provisional article of a Regulation amendment stating for the application of the ‘favorable terms of Regulation’ to be applied to pending applications (numbered 2018/1068 E. and 2018/3377 K.) stated that “It is decided that the legal certainty principle was not violated, due to the fact that; the article which enabled the application of the favorable provisions of the Regulation shall not be deemed as a pre-acceptance as a violation of the environmental legislation or environmental protection principles and the article should be interpreted as an intention to protect the vested rights of those who are concerned with the administrative action in the event of abolishment of a provision that may be in their favor at the date of application with a latter regulation.”

VI. EVALUATION OF THE PRACTICES OF EIA IN TURKEY

The EIA Regulation is in force since 1993 in Turkey. During this 20-year period, its importance is quite well accepted by all parties involved, it has drawn public attention as one of the most discussed and sued-upon legislation.

Although, it is difficult to determine whether the EIA system which concerns several industries, public institutions, and organizations, together with the individuals, it may be observed that the general level of knowledge regarding the EIA in the public is higher compared to other administrative regulations. It may be argued that the desired results have not been achieved in terms of environmental protection since when the Annual EIA Activity Reports of the Ministry are examined, it may be seen that the EIA decisions issued by the Administration are overwhelmingly in favor of the investors. Although, this result may not be unusual for a developing country, the issue of how effective EIA is in maintaining environmental sensitivity is still controversial.

However, an important issue that may be considered as favorable for environmental law is the role of Turkish Courts in the implementation of the legislation. Turkish judiciary for administrative review (Administrative Courts, Regional Administrative Courts, Council of State and Constitutional Court) care to interpret the legislation in accordance with its purpose as much as possible and try to consider the public's sensitivities regarding the environment. In the same context, the intensive and effective efforts of the NGO’s inclusive of associations, foundations and unions who are sensitive to environmental issues shall not be ignored.

It is regrettable that the EIA is only considered as a bureaucratic stage or a legal requirement for investors to complete. Likewise, the prejudice that every innovation, investment, or human activity will adversely affect nature and the environment is against the notion of modern life where human structures are also a part of nature and the environment. In our opinion, it is important to understand that EIA may be used as a common and effective tool for developing techniques and technologies that may provide more efficient or more effective use of the environment for the welfare of people. This may result in a more livable and healthier environment for current and future generations.