In Natura Areas, Nature Protection Takes Centre Stage over Other Considerations
A look at Estonian legal practice often leaves the impression that we have not yet acceded to the European Union, as Estonian law is the only kind which is known and applied, even if Estonian law is in direct conflict with the law of the Community. A good example of such a conflict is the recent incident of logging in Suurupi, where it appeared that Estonian law did not provide for a way to prohibit the logging, but where from the standpoint of European law a prohibition was obvious as this was a Natura “preselection” area.
There are many such areas in Estonia and thus the problem is extremely salient. Namely, nature conservation interests often collide with economic and related social interests on the Natura areas. Such conflicts have occurred repeatedly in other European Union member states and they have been discussed in the European Court of Justice as well. The analysis presented in this article is based on the positions of the European Court. The following should be highlighted in the positions of the European Court.
The strict protective regime applied in Natura areas draws on the principle of providing high-quality environmental protection as stipulated in the treaty establishing the European Communities. Selection of Natura areas may not proceed on the basis of other criteria (such as economic and social considerations) besides ecological ones. The nature conservation regime applied in Natura areas applies not just in Natura areas but also outside of them if the activity planned there can influence the objectives of Natura protection. In what is known as the Waddenzee court case, the European Court of Justice ruled that all plans and activities must be evaluated if there is a lack of total certainty that they will not have an impact on a Natura area. The assessment must be very thorough, and all of the impacts that are in principle possible must be evaluated – not only the ones that are the most likely. The European Court of Justice has also said that if there is even the shadow of a doubt with regard to a negative impact, the plan or activity may not in general be permitted. Projects with a potential negative impact may be allowed in exceptional cases, if three conditions are fulfilled. The first of these is an absence of alternative solutions. The competent institutions of the member state must evaluate whether there are alternatives to the planned activity in the case of which the objective of protecting Natura areas can be better achieved. Another case where an exception may be made is when certain imperative and extraordinarily important public interests necessitate that the implementation of the plan or project should proceed. For the purposes of the directive, these would be not priorities (as Estonian law sets forth) but rather imperative and extraordinarily important reasons. The third condition is that all appropriate compensatory measures are adopted. If all of these conditions are fulfilled, a plan or project which negatively impacts an area may be allowed to proceed.
The European Court of Justice has justified its radicalism with the fact that the economic interests competing with nature conservation are always exceedingly aggressive. Consequently other interests that serve as a counterweight to them must be just as aggressive. There is no point at all in “meek and mild” nature conservation; it will always wind up on the losing side.