Sweden’s cement debacle – a hardening experience
Since the summer of 2021, the events surrounding Sweden’s major cement supplier (Cementa) and its permission to mine limestone on Gotland have been the subject of great media attention and public debate. The company applied for a continued and extended mining permit in December 2017, which was granted by the Land and Environment Court in January 2021. The case was appealed and the previous judgment was revoked; The application was rejected by the Supreme Land and Environmental Court in July 2021. The reason for the rejection was that the company’s environmental impact statement according to the court was so deficient that it could not form the basis for determining the environment. impact of the business. The validity period for the existing permit expired on 31 October 2021, which immediately put an end to future quarries and jeopardized all of Sweden’s cement production.
The first permit process in environmental courts
The limestone from the Gotland mine accounts for 75% of Sweden’s cement use. A cessation of production would therefore have major negative consequences for both private and public interests, especially with regard to infrastructure projects and the construction sector. To avoid an immediate crisis regarding the supply of cement, the government quickly (in August 2021) presented a bill with proposals for amendments to the Environmental Code. Briefly, it was proposed in the bill that the government would have an autonomous right to first consider an application for a time-limited permit to mine limestone. The regulation was proposed to be limited to the amount of mining covered by the existing permit, with the original permit prevented from delivering the agreed quantity prescribed due to time constraints. It should therefore be possible to extend an existing permit in time, but not quantity. Furthermore, the extension should be possible only for activities that are necessary to meet an urgent public interest when the need cannot be met in another satisfactory way from a general point of view.
The bill was intended to make the government competent to examine all relevant applications for continued activities (ie environmentally hazardous activities and water activities as well as Natura 2000 permits and exemptions from the provisions on the protection of species). Thus, it was orchestrated so that the company in question could mine the remaining limestone from the previous condition even after its termination, which according to information will mean continued operations for about eight months.
Ask about legislation
The Law Council, part of the Supreme Court that examines government bills before they are submitted to the Riksdag, rejected the proposal in mid-September 2021. According to the Law Council, this was the way the case was handled in violation of the constitution’s requirement for consultation. The consultation bodies must be given the time needed to analyze the case and write a well-established consultation response. In this case, the stated time was no more than a few days, which according to the Law Council was “extremely short” and even when assessing the urgency of the case, it was “unacceptable”. The bill was also criticized for being applicable in only one individual case and aimed to correct the outcome of a single court case, which according to the Law Council endangers the public’s trust in the judiciary. The law can thus be in conflict with the constitutionally protected right that laws should be generally formulated and applicable to everyone.
New law and permit
Despite the criticism, the government chose to proceed with the bill that passed the Riksdag on 29 September 2021. The extraordinary situation given the potential consequences of a cement crisis seems to have led to the conclusion that the end, in this case, justifies the means.
On 18 November, the Government decided to grant the company a permit for continued mining operations at the mines on Gotland. The permit covers the volume of limestone which at the time of application was covered by a valid permit but whose mining could not be completed due to the time limit in the permit. The permit will enter into force as soon as it is claimed by Cementa and it is valid until 31 December 2022.
A permit granted by the government can be appealed and be subject to judicial review by the Supreme Administrative Court, which could provide an opportunity to analyze the legal issues discussed. However, litigation is a cassation procedure where the legal issue only applies if a decision made by the government is illegal or not.
The Supreme Administrative Court has received an application from an environmental organization for judicial review of the government’s decision. The organization has demanded that the government’s decision be revoked and that it should not apply until further notice. The organization has also demanded that the court receive a preliminary ruling from the European Court of Justice. The district court will now start handling the case.
Comment
The cement case highlights the need for a well-functioning process regarding permit matters. The long processing time and the short time between sentencing and termination of the existing condition is unfortunate. However, the problems with the permit case process are not an isolated event. Slow and complicated permit processes are a general problem for many businesses, including businesses with the potential to contribute to the development of green technology and reduced carbon dioxide emissions. More resources for courts and authorities, together with changes in the permit process to increase efficiency and predictability, should be considered of great importance to prevent a similar situation as the one in the Cementa case from occurring again, and to ensure that Sweden’s contribution to e.g. .a. green conversion works in an appropriate way. The case also highlights the importance of constitutionally protected rights from an environmental law perspective, and how different rights can conflict with each other despite the “good intentions” that the legislator may have.