Environmental legislation as a policy instrument

The Environmental Code is the legislation that governs and limits society's impact on the environment. The Environmental Code covers everyone - individuals, organizations and companies. The research should contribute to describing how environmental legislation works in practical environmental work and strengthen the authorities' work with environmental law. Among other things, by examining how environmental legislation functions as a means of control towards the national environmental quality goals.

Environmental law must deal with technical and natural science knowledge and risk assessment in the evaluation of the impact of human activities upon the environment. Legal criteria often include concepts such as “the continued ecological functionality of breeding sites”, “significant effect on the environment” or “favourable conservation status”, all relating to natural science factors. Accordingly, one must be able to manage scientific knowledge and uncertainty at various stages of decision-making procedures, from the first level of the administration to the courts. This research has been joint project between Jan Darpö at the Faculty of law, Uppsala Universitet and Jonas Sandström at the Species Information at SLU in Uppsala. The project concerned the use of natural science knowledge in cases concerning land-use and species protection, focusing on two scenarios; permits for wind farms and forestry. The same set of EU species protection provisions apply, but the decision-making procedures differ greatly. 

The permit procedure for wind farms in Sweden is strictly formalized under the Environ-mental Code and the procedure is characterized by the requirements of EU law on environmental impact assessments (EIA) and consultation with expert authorities and the public concerned. In substance, the EU nature directives – that is the Bird Directive (2009/147) and the Habitats Directive (92/43) – are applied in line with the case-law of the CJEU. The permits are issued by Regional Licensing Boards with experts of their own and the decisions are appealed to the environment courts where technical judges work together with law trained judges on an equal footing. I this project, we have studied all permit cases on wind farms from 2014 to 2018 in Sweden, all in all more than 500 decisions and judgements. We have concluded that the permit procedure is well-functioning with respect to the effectiveness of EU law. During this five-year period, applications have been made in 211 cases for 4,535 wind turbines, out of which 72 procent were granted permit. Out of those 28 procent which were denied permit, species protection concerns represented 9,3 procent only. Further, we have performed an in-depth analysis of 19 applications on wind farming from different regions of the country located in the forest landscape. We found that when assessing the impact of wind power, considerations was taken to species that are directly affected by collisions, such as certain birds and bats. In contrast, there was less consideration to values of the forest landscape with regard to species that are linked to natural forests and other high conservation values, such as fungi, lichens, mosses, vascular plants and insects. These species are directly affected by damage to habitat by the infrastructure surrounding the wind turbines, but also indirectly by increased exploitation. These impacts are often referred to as cumulative effects, barriers, and fragmentation and are often neglected and considered to be difficult to assess. Moreover, the EIAs and applications vary greatly in quality concerning species assessment, although some of the cases include large inventories of species. Data collected in this work could be of greater use if they were made accessible to the public. There are good opportunities for the public concerned to express their opinions in the process. We have also noted that the decision-makers and environment courts listen to these arguments, especially if they are based on validated observations and other kinds of objective information.

The permit procedure for wind farms is contrasted by the decision-making procedure in Swedish forestry. The relation between the Forestry Act and the Environmental Code is unclear, resulting in differing requirements for the investigation of the impacts of clear-cutting operations on sensitive species and their habitats. The procedure is untransparent and still regarded as an affair between the authority and the operator without any participation from the public concerned. Formal decisions are seldom made and traditionally very few cases go to court. Recent years, however, there has been an increase of cases in the environmental courts concerning forestry and species protection due to pressure from EU law.

Our study covered 300 cases concerning clear-cutting operations from four forest districts of the National Forest Agency during the period 2018–19; two districts to the north of the country and two to the south. From this material, we concluded that there are substantial differences between the regions concerning the presence of sensitive species. Very few cases concerned species protection in the north, whereas as birds such as the capercaillie, certain frogs and orchids was subject of controversies in the south. The main reason for this is the lack of data and observations reported by the public to the Artportalen, the main source for species information. As the competent authorities’ own inventories of species and their habitats have been down-prioritized since the early 2000s, relevant information is lacking in the north. This downward trend has increased recent years in line with a general development towards weaker implementation of the species protection requirements in Swedish forestry. Also the compensation scheme for forest protection is counterproductive in that sense, as it encourages the landowners to notify small areas of great biodiversity for clear-cutting operations. This piecemeal approach is further strengthened by the fact that the landowner is reimbursement with 125 procent of the market value. Within the framework of the forest project, we have also analyzed the effects of the recent judgement from the CJEU in the case C-473/19 Skydda skogen (2021). We concluded that it follows from this judgement that the Member States must have a scheme of binding legislation on species protection in the forest and that the basis for decision-making must be comprehensive in line with the precautionary principle. Further, the public concerned must have an opportunity to participate in the decision-making procedure, including a right to appeal to a court of law. In all these aspects, it is doubtful if the Swedish system for decision-making concerning forestry and species protection meets the requirements. Finally, we have synthesized our conclusions to form a proposal for a common standard of “good governance” for environmental decision-making and judicial review on species protection. In sum, we have identified the following key elements:

• Planning on a landscape level is necessary to ensure that continuous ecological functionality may be preserved for areas impacted by large scale land-use activities. Regional wind development plans and forest management plans may be an important component in such a system.
• In line with the precautionary principle, operators must be obliged to furnish the competent authorities with comprehensive investigations on species and their habitats in the area before such operations are performed.
• The competent authorities must also build a knowledge bank on species and habitats by inventories of their own.
• When operations which may impact species and their habitats are notified to the competent authority, there must be sufficient time to investigate the case in order secure well informed and clearly reasoned decisions.
• Transparent decision-making with public participation is a key factor for providing the competent authorities with high quality information in many cases, not least on the existence of species and their habitats.
• And finally, access to justice is crucial for the effective implementation of the legal requirements in the area of environmental law.

Jan Darpö, Uppsala University

3 300 000 SEK

The goal of this research project is to analyze how rules regulating dispensation from nature reserves, shore protection, species protection and general biotope protection are applied by county boards and (in the case of shore protection) municipalities. The ambition is to draw conclusions about what promotes or hinders the fulfilment of environmental goals and legal certainty in dispensation decisions, and to give recommendations for how legal instruments and guidance can be improved. In general, our study shows that a high percentage of applications for dispensation are granted, which is in conflict with the idea behind dispensation provisions to be an exception from a general rule, and also in conflict with the expression in the preparatory work that decisions should be made restrictively. The study shows that, for each of the dispensation types, there is a large variation in the dispensation decisions, both amongst different counties as within individual counties as to how certain questions are handled, which is hard to reconcile with the principles of equal treatment, consistency and foreseeability. Regarding the principle of equal treatment, it is crucial that authorities in different parts of the country, as well as case workers within the same authority, treat similar cases in the same way (Instrument of Government, ch. 1 § 9). In order for individuals and other concerned parties to be able to understand how the authorities have reached a decision, it is essential that the decision is clear and transparent. This study shows that to the contrary it is often difficult to understand how decisions have been reached and on what grounds. As noted in one of the case studies, it seems that certain sources and references are used in decisions in an almost random manner. Unclear decisions are problematic for reasons of legal certainty and particularly in relation to the possibility to appeal decisions. Decisions should therefore to a higher degree be formulated so that it is clear on what grounds the decision is based. In the guidance materials for authorities, clarifications can be made in several areas, for example about what role the general rules of consideration play in dispensation decision making, that compensation measures are required in cases of dispensation from special rules for particular nature reserves and that determinations regarding natural value must be made based on knowledge of the conditions in the area in question. This can mean that place visits should happen more frequently than they currently take place.

The guidance documents can also harmonize and clarify decision making so that it becomes more predictable and thereby more legally certain for different interested parties, not least operators. It should not be difficult to include checklists in guidance documents that decision makers can use to ensure that they have not overlooked important grounds for decision making. Dispensation decisions rarely show that they have taken indirect or cumulative effects into account. Given the large number of granted dispensations, it is reasonable to assume that the cumulative impact on natural values can be significant. The development of landscape planning can be an appropriate instrument to manage this deficiency. These plans can have important functions. One of them is to create and analyze information that takes into account ecological connections in a larger geographical area. Another is to, at an early stage, handle potential conflicts of interest, make prioritizations, and clarify goals. All of these things are advantageous for further decision making, for example regarding dispensation from chapter 7 of the Environmental Code. Foreseeability (and legal certainty) increase.

Charlotta Zetterberg, Uppsala University

4 700 000 SEK

Activities that require a permit account for a significant part of the environmental impact that prevent the fulfillment of the Swedish environmental quality objectives. Activities that require a permit include industries, energy and waste facilities, water treatment plants, water activities, roads and railways. These activities affect the environment, for example through emissions of greenhouse gases, nutrients and hazardous substances, and through the exploitation of natural environments. When an activity causes or risks causing direct and extensive negative effects on the environment, and thus on the environmental quality objectives, this is usually handled in the permit processes. However, dealing with the combined impact of many different activities, each of which causes only a relatively small environmental impact, i.e. cumulative effects, is much more difficult in individual trials.

This final report from the MERIT project firstly presents a survey, demonstrating that activities that require a permit exert a significant pressure on the fulfillment of 20 of the 34 specifications examined (within 12 environmental quality objectives). Accordingly, we suggest that at least ten percent of the total environmental pressure is caused by these activities. This applies, for example, to the environmental quality objectives A non-toxic environment, Reduced climate impact, Zero eutrophication, A magnificent mountain landscape and Good quality groundwater. Activities that require a permit contribute to the spread of unintentionally formed substances and the use of particularly hazardous substances (A non-toxic environment) as well as affects the environmental quality goal Reduced climate impact. According to our study, these activities account for as much as 50 percent of the total pressure on these environmental quality objectives. A literature review shows that the environmental quality objectives are often included in the environmental impact assessments (EIAs) used in the permit process. However, they are not included in such a way that the environmental impact caused by the activities can be linked to the fulfillment of environmental quality objectives. Interviews with various actors show that the environmental quality objectives are not perceived as a functioning or as an important tool in the EIA work. There is obviously a gap between the permit examination for the individual project and the cumulative environmental impact from various activities that require a permit, with the consequence that the environmental quality objectives are jeopardized by legal permits.

Based on the results of this survey, this project has proposed ways forward in order to make better use of the opportunity for the permit process to contribute to the fulfillment of the national environmental quality objectives. This has been done by examining both the environmental goal system and the permit processes, practically and legally, and based on identified conditions provide recommendations.

We suggest that the Swedish system of environmental objectives could be of a more consistent design, and that the system for follow-up could be more transparent. There is support among actors that the environmental quality objectives at an overall level should be visionary, at the same time as they need to be more concrete to play a more active role in the permitting procedure. While the permit processes determine an acceptable environmental impact, the environmental quality objectives mostly express a desired environmental state. There is a need for guidance for the actors operating in the permit process, for example in the form of assessment criteria, in order to apply the environmental quality objectives in individual trials.

There are several legal instruments that can be used to strengthen the importance of environmental quality goals in permit processes and contribute to the fulfillment of the goals. One possibility is to establish environmental quality standards based on the specifications in the environmental goals system where this is particularly relevant. Action programs, to achieve good environmental status, can also be used to regulate activities that require a permit. There may also be reasons to limit the permits in time to be able to achieve the environmental quality objectives. In order to achieve the environmental quality objectives the permits can be limited in time, the granting of permits can request ecological compensation and regulate transport to and from the activities.

The importance of the environmental quality objectives can also be emphasized in the permit processes by a more active process management by key actors. The Swedish Environmental Protection Agency and other authorities can contribute with advice and guidelines on these issues, and the county administrative boards can, to a greater extent, set requirements for consideration of the environmental quality objectives in EIA. This project proposes an environmental objective key that can be used to delimit the analysis of the impact on the environmental quality objectives to the situations where this is relevant, based on the documented environmental impact of activities and the regional fulfillment of environmental quality objectives.

At the end of the report we provide recommendations regarding how the environmental quality objectives can be raised more specifically, so that the permitting processes can be used to a greater extent to contribute to the fulfillment of the Swedish national environmental quality objectives.

Mikael Malmaeus, IVL Swedish Environmental Research Institute

This report consists of four studies conducted by the research program Evaluating inspections as an instrument for achieving environmental targets (”Utvärdering av tillsynen som styrmedel för att uppnå miljökvalitetsmålen”: UTSUM). Three of the studies contain follow-up and supplementary analyses of projects carried out as a part of the previous research program Inspections and enforcement as instruments for enhancing environmental behavior(“Tillsynen som styrmedel för ett förbättrat miljöbeteende”: TSFM). The focus of these studies were on the use of the communicative method Motivational Interviewing (MI) in the context of inspections regarding waste sorting and animal welfare. The last study provides a compilation of our overall experience from analyzing inspections and enforcement.

In the first study, “Using motivational interviewing at animal welfare inspections”, the results show that inspectors who participated in the MI training program did not improve their skills, in contrast to the other studies that were carried out within the TSFM research program, which may be due to specific aggravating circumstances. However, the participating inspectors’ assessments of the training program were high and increasing over time, even though they did not reach the very high levels of the other two studies. Moreover, the animal keepers consistently rated the attitude among the treatment group’s inspectors very highly both before and after the MI training program. We also investigated the extent to which animal keepers had undertaken measures to achieve compliance at follow-up inspections. Here we find that no improvement took place after one group of inspectors had completed the MI training program. In terms of measures undertaken to achieve compliance regarding all control points we even see a clear deterioration among animal keepers inspected by the group that received MI training, which may be due to these inspectors carrying out more follow-up inspections after the MI training program compared to before. It is thus possible that the training program contributed to a greater focus on shortcomings and measures to address these, whereby it became more difficult to achieve a high degree of compliance at follow-up inspections.

The purpose of the second study, “Follow-up of the study ‘Enhancing compliance with waste sorting regulations through inspections and motivational interviewing’”, was to investigate whether the acquired MI skills and the increasing degree of compliance with waste sorting regulations among restaurants, which were measured in the previous TSFM study, could be maintained after waste sorting controls were resumed two years after that study was finished. Our results show that inspectors’ MI skills deteriorated over time, which indicates how important it is to create routines for maintaining acquired skills. Even if a MI training program generates good results continued efforts are needed to maintain MI competence. We also find that restaurants’ propensity to sort waste in accordance with legislation decreased after the controls ceased. However, our analysis shows that the degree of compliance among the restaurants, whose waste sorting had been controlled at least twice during the TSFM study, was higher at the follow-up inspection compared to the very first inspection. Thus, there appears to be a long-term positive effect of inspections, even if it is declining. Recurring inspections are therefore important to achieve a higher degree of compliance with the law.

The third study,”The conversation between the representatives of a restaurant and the municipality’s environmental inspector predicts the restaurant’s future waste sorting”, also follows up on the TSFM waste sorting study. The focus here is on examining restaurant representatives’ utterances regarding change talk during inspection conversations. The statistical analysis demonstrates that there is a correlation between the dichotomous variable “compliance with” or “violation of” waste sorting regulations and how the restaurant representative had expressed motives in favor of and against waste sorting during the previous inspection. If restaurant representatives express difficulties and problems concerning waste sorting extra inspection efforts may therefore be necessary. Analogously, restaurant representatives who express reasons for sorting waste can be assumed to do that, whereby a lower degree of inspections and enforcement may be required. However, the analysis shows no or weak correlations between the inspector’s MI skills and the share of change talk by the restaurant representative during an inspection.

The study “Evaluating the effect of environmental inspections and enforcement - experiences from two research programs” focuses on how an environmental and health safety authority can measure the effect of its various inspections and enforcement methods. Based on three example studies conducted by two previous research programs funded by the Swedish Environmental Protection Agency, three different evaluation methods –questionnaires, use of secondary data, and randomized experiments – are analyzed, and the pros and cons of these methods are discussed from the perspectives of relevance, precision and feasibility.

Mathias Herzing, Stockholm University

1 000 000 SEK