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Prevalence of environmental interest in the protection of the spaces of the Natura 2000 Network on interests economic mercantile.
Sentence of the Superior Court of Justice of Andalusia of March 9, 2021 – Contentious-Administrative Chamber.
On the occasion of a contentious-administrative appeal against a resolution of an Autonomous Council for the Environment and Territorial Planning, by which Environmental Authorization was denied and the incompatibility of a Project for the Extension of Mining Concession requested by a company was declared, upon entering conflict with the environmental protection of a Site of Community Interest, this judgment is issued, closely related to the principle called “environmental non-regression”.
📚 Principle of “environmental non-regression”, in the jurisprudence of the Constitutional Court.
📚 Estrategia nacional de infraestructura verde y de la conectividad y restauración ecológicas.
It was an exploitation of certain resources on mining grids, the concession term being 30 years, extendable. The extension of the concession was requested based on a technical report justifying its need and the viability of the exploitation. In the project he presented, he renounced the exploitation of the concession area included in the Natural Space area.
For the extension of the concession, the inclusion of the area in the list of Places of Community Interest members of the Natura 2000 Network was taken into account, which forced the Administration to submit the request for said extension to the Environmental Authorization process.
A modification to the initial project was presented in the sense of reducing the exploitation surface and delimiting the lands that host priority habitats. Subsequently, it presented a second modification to adjust the scope of the exploitation to the criteria of the LIC, although it was considered as a substantially different project.
In the Report issued by the Environmental Administrative Service, it is concluded that the extension would affect a SCI and would be incompatible based on environmental criteria with the conservation of the Natura 2000 Network.
The appellant company maintains that it has adjusted its request and the conditions of the mining exploitation to the environmental values, reducing the surface of the exploitation and delimiting the lands that could host priority habitats. By means of expert evidence, it justifies that there is no adequate or sufficient motivation on the part of the Administration, through the technical reports on which it relies, to deny an activity that has been carried out for years, together with a restoration work, due to environmental issues. economic model.
For its part, the defence of the Administration maintains that through the corresponding weighting of interests, the environmental interest of the Natura 2000 Network prevails over the economic interest of the company. It highlights the need to conserve the habitat of species listed as endangered.
The disputed issue is none other than determining whether the right to obtain by the applicant entity an extension to carry out its extractive activity, the economic importance of which is evident, and has thus been recognized by various Public Administrations, must yield to the protection of environmental values.
The Chamber emphasizes the fact that the exploitation is included in a ZEC, forming part of a biological corridor with other protected areas and refers to the Environmental Opinion that unfavourably informs the project for the extension of the mining concession, which serves as support to the appealed resolution.
It is assumed that the mining exploitation causes damage to the environment, unless the appellant proves the existence of an economic and social interest that could be prevalent. On the one hand, there is the comparative study between expert reports from the parties, which essentially consider that the mining concession area is several kilometres away from the distribution zone of threatened species and that it has not been taken into account that the final proposal for mining exploitation represents little in the total area of the ZEC; and on the other hand the Environmental Assessment-Report, which highlights the various animal and plant species under protection that exist in the ZEC, the various habitats of community interest, the danger posed by the continuation of mining for these species and the alteration the orography and geological profiles of the area; In view of this, the Chamber opts for the latter.
In short, the claim of the company regarding the obtaining of the authorization for the project of extension of the mining concession is rejected.
The court weighs economic, social and environmental interests, making the latter prevail. It cannot be forgotten that the extractive activity entails a great environmental impact, especially when it takes place in an area included within the Natura 2000 Network space. As much as the company has tried to reduce the impact of its activity, the truth is that the characteristics environmental problems of the area and the injury that the activity could cause in species of flora and fauna, some of which are in danger of extinction, has led the Administration to opt for the denial of the extension of the concession, which is not a unconditional right.
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