FSM vs. Czech: A New 'Standing' for Climate Change?

• Author: Paulo A. Lopes
• Position: J.D./M.P.P. Candidate, 2011, at American University Washington College of Law and School of Public Affairs
• Pages: 24-24

24WINTER 2010

In 2005, CEZ Power Company (“CEZ”) announced plans to

completely rebuild a lignite (brown coal) f‌ired power plant

in Prunérˇov, Czech Republic.1 Shortly before the expected

approval of CEZ’s Environmental Impact Assessment (“EIA”),2

the Federated States of Micronesia (“FSM”) sent two letters to the

Czech government.3 In December 2009, FSM requested the Czech

government to conduct a Transboundary EIA,4 which was followed

in January 2010, by an additional request for the government to

review the Best Available Technology (“BAT”) on the proposed

modernization of the Prunérˇov II plant.5 FSM’s petition represents

the f‌irst time that a Non-Member State of the European Union

(“EU”) has brought a claim under EU Directive6 and Czech law

requesting a review of the environmental impacts of an EU Mem-

ber State project on a Non-Member State country.7 However, does

FSM have standing to bring these claims?

FSM’s f‌irst claim is that CEZ’s EIA failed to consider the

climate affects of Prunérˇov II and evaluate all possible alterna-

tives.8 FSM asked the Ministry of the Environment to issue a nega-

tive ruling on the EIA because it ignored transboundary impacts.9

Although FSM agrees with the modernization of the Prunérˇov II

plant, FSM takes issue with CEZ’s assertion that Prunérˇov climate

impacts are “entirely marginal and unprovable.”10 FSM proposes

that the Czech government perform a Transboundary EIA, which is

required under Czech law.11

The 1991 Espoo Convention on Environmental Impact Assess-

ment in a Transboundary Context addressed transboundary impacts

on state parties12 and EC Directive 85/337 integrated the Espoo

Convention into EU law.13 In 2001, the Czech Republic ratif‌ied

the Espoo Convention and implemented the EC Directive under

the Czech legal Act No. 100/2001 Coll., on Environmental Impact

Assessment.14 According to Greenpeace, FSM has standing under

Czech Act No. 100/2001.15 The EC Directive indicates signif‌icant

effects on the environment “in another Member State.”16 How-

ever, section 11(1)(b) of the Czech Act def‌ined “affected state” as

a state whose territory “can be affected by signif‌icant environmen-

tal impacts.”17 Greenpeace argues that, unlike the EU Directive,

the Czech Transboundary EIA section includes states that reside

outside the EU’s borders, which grants FSM standing to bring a

claim.18

FSM’s second claim is that the Prunérˇov II lignite fueled power

plant violates the BAT19 required under the EU Integrated Pollution

Prevention and Control (“IPPC”) Directive 2008/1/EC and Czech

legal act No. 76/2002 Coll.20 In two 2005 press releases, CEZ indi-

cated that it will “completely rebuild” the Prunérˇov II plant.21 Then,

fSm vS. cZech: a new “StanDing” foR

climate change?

by Paulo A. Lopes

* Paulo A. L opes is a J.D./M.P.P. Candidate, 2011, at American University

Washington College of Law and School of Public Affairs.

in 2007, CEZ stated in a press release that the Prunérˇov II plant

would undergo a “comprehensive reconstruction.”22 The classif‌ica-

tion of a plant as “new” or “existing” matters since the BAT under

the IPPC requires different levels of eff‌iciency for each.23

The Directive established that BAT is required for installa-

tions like the Prunérˇov II plant.24 The IPPC Reference Document

on Best Available Techniques (“BREF”) for Large Combustion

Plants emphasizes the importance of eff‌iciency, which not only

results in the eff‌icient use of natural fuel resources but also reduces

greenhouse gas emissions.25 The thermal eff‌iciency established by

the Czech EIA estimates the proposed Prunérˇov II lignite plant at

38%.26 With CEZ’s ongoing attempts to classify the plant as a ret-

rof‌it, 27 a 38% eff‌iciency falls within the range established by the

IPPC BREF for Large Combustion Plants.28 However, FSM states

that the Prunérˇov II lignite plant is not a retrof‌it of an existing plant

but a “completely rebuil[t]” plant.29 Under the BREF BAT, a range

from 42%-45% thermal eff‌iciency is required for a new PC lignite

plant.30 FSM notes in their request that the Czech government asked

CEZ to have a “new” power plant classif‌ication option reviewed

in the EIA, but that CEZ failed to comply with that request in the

EIA, even though it is required under both EU Directive and Czech

law.31

After this setback, on January 26, 2010, the Czech Environ-

mental Minister Jan Dusík, unexpectedly announced that the gov-

ernment will request an independent international assessment of

the planned expansion of the Prunérˇov II plant.32 The independent

assessment would review CEZ’s planned use of BAT on Prunérˇov

II.33 The minister also announced that the government would now

classify the expansion as a “new” plant.34 However, the minister

did not address FSM’s concern that the EIA failed to consider and

assess the climate affects of Prunérˇov II and all possible alterna-

tives.35 Thus, although FSM has succeeded in preventing an

approval of the current EIA, it is unclear if FSM has standing to sue

and how the proposed independent assessment will review and rule

on the “new” Prunérˇov II plant concerning BAT, climate change,

and possible alternatives.36

Endnotes: FSM vs. Czech: A New “Standing” for Climate

Change? continued on page 59