The Prunerov II controversy is emblematic for the current conflicts that exist between industrialized countries and smaller states, which are confronted directly to Climate Change consequences.
Let’s first have a closer look to the events that are gathered under the name of “Prunerov II controversy”.
The Prunerov II Controversy between 2008 and 2011
Prior to 2008: The Prunerov modernization plans
The CEZ group, the biggest industrial firma in Czech Republic and owner of the ancient Prunerov coal-fired plant, makes plans for a modernization. This building work should result in an emissions reduction of 3 million tons CO2. This construction work is planned along with an extension of the exploitation license until 2035.
The Prunerov plant has an enormous profitability (with a profit margin around 46%), but is also a huge CO2 emitter: this plant’s emissions alone amount to 0,021% of the world’s emission.
The current dynamic shows a European expansion of the CEZ group – in Germany, Poland, Slovakia, Hungary, Romania, Bulgaria, Albania, and Turkey. Besides, the Czech government retains 60% of the Prunerov shares. This shows the paramount importance of the Prunerov plant for the country.
June 2008 – March 2009: The Czech EIA
In order to effectively implement the modernization of the plant – that by the way also implies a total rebuilding of some parts – the CEZ group is bound to the obtaining of a governmental approval.
The Czech government thus launches in June 2008 an Environmental Impact Assessment (EIA). EIAs are national reports of the negative or positive environmental impacts linked to a certain project.
In March 2009, the Czech government delivers the results of the EIA: it approves CEZ plans, but stresses the need for stronger adaptation to local standards. Indeed, the CEZ group repeatedly refused requests from the government to implement the use of BAT (Best Available Technology) in the Prunerov plant, technology that could strongly reduce the CO2 emissions and thus limit its environmental impact.
Although the adaptation cost to the BAT standards would only represent about 0,4% of the expected profit that could be made until 2035, the CEZ renewed its opposition to a BAT-based adaptation.
The TEIA procedure is usually used by countries that want to question a project, which is going to have direct consequences for them. Yet this was the first time that a TEIA request was made by such a remote country: Micronesia and Czech Republic are distant from no less than 13 000 km ! Even more suprising is the fact that Micronesia never directed any request to China, although it that has more than 1400 coal-fired plants, and that it is much nearer than Czech Republic.
December 2009 – 2010: Micronesian request for a Transboundary EIA.
While thorough, the Czech EIA remained a national assessment, made by national experts, for a national government, on national issues. It is true that the government recognized the international reach of the problem, but it didn’t notify any potentially affected state in the analysis process.
In December 2009, The Federate States of Micronesia sent a request to the Czech government, asking for an independent study on the Prunerov plant’s impact. They ask this time not for a regular EIA, but for a Transboundary Environmental Impact Assessment (TEIA) that takes in consideration not only the immediate local impact but also the international impact and other affected zones.
The TEIA procedure is usually used by countries that want to question a project, which is going to have direct consequences for them. Yet this was the first time that a TEIA request was made by such a remote country: Micronesia and Czech Republic are distant from no less than 13 000 km ! Even more suprising is the fact that Micronesia never directed any request to China, although it that has more than 1400 coal-fired plants, and that it is much nearer than Czech Republic.In January 2010, and to support their request, the FSM sent to the Czech government two motivated letters from the Micronesia’s Office of Environment, based on the suggestion of local ecologist associations. The major idea is that
“We agree with the plan to modernize the Prunerov II by building new facilities. However, the EIA
[has so far] failed to provide and assess all potential impacts and all possible alternative to
minimize adverse impacts of modernizing the power plant."
[has so far] failed to provide and assess all potential impacts and all possible alternative to
minimize adverse impacts of modernizing the power plant."
Andrew Yatilman, director of Micronesia's Office of Environment & Emergency
Management, January 4, 2010, letter to the Czech Environment Ministry.
Management, January 4, 2010, letter to the Czech Environment Ministry.
The Czech regulators recognized that the EIA lacked broad analysis, and ceded to the Micronesian demand for international audit, stating that
"Having thoroughly studied all available documents on the [power plant modernization] intent I have
concluded to put the plan under the international review."
2011: The failure of the TEIA
CEZ had stated it would cancel the plan if the TEIA issued a negative assessment, even though it wasn’t legally binding. In April 2011, the outcome of the assessment was positive, in favor of the CEZ Prunerov plans.
If this was a drawback for the Micronesian government, it wasn’t a total failure though: the Czech government – through Dusik and Krebsova - stated it would integrate the Micronesian remarks and pretentions. The FSM was recognized as “affected state” and got legal compensation. Indeed, CEZ committed itself to donate a part of the future profits to Micronesia.
Prunerov II. vs Micronesia:
What impact on the international
environmental legal system?
What impact on the international
environmental legal system?
As such has the case not a huge impact, considering that Micronesia couldn’t prevent the construction work in Prunerov. But no one could have reasonably expected Micronesia to win against the enormous European industrial pressure.
Prieur even describes the case as having no judicial consequences but relying only on political and media coverage to draw attention.
This is not completely wrong though. Indeed, Greenpeace – Rovensky - described it as “valuable precedent” for TEIA since this was the first time that such a remote country launched a TEIA. For the first time, the “butterfly effect” is taken into account, and not only the direct consequences. It was mentioned in the assessment that “each plant plays an important role and necessitates an international evaluation”: even national decisions stress the need for global assessment. Jasper Teuling in the Threatened Island Nations Conference of New York assessed that "vulnerable nations have long been the moral voice on climate change, now they have a legal one too".
Possible legal actions
“In the wider context, the current case should put governments and corporations from industrialized states on notice that countries vulnerable to climate change are keen to explore new avenues to challenge decisions on projects that exacerbate climate change.”
Greenpeace Report on the Prunerov II Controversy
National Czech legal order
As showed previously, Micronesia used the Czech national legal order. Indeed, it is endorsable by any “affected” country or person. This way, Micronesia could attack on the building permits or on the Czech pollution prevention control legislation. These would be other hurdles, even with the positive EIA statement. CEZs violations of the BAT requirements could be a base for further actions.
Czech obligations
Micronesia could argue that the Czech Republic breaches one of its obligations regarding climate change.
“The Czech Republic will attempt to bring [GHG Emission] values closer to those for the European Union countries
in the foreseeable future. This is the main motivation for establishing further measures to reduce greenhouse gas
emissions contained in the National Program to Mitigate the Impacts of Climate Change, which was approved by the
Government of the Czech Republic in March 2004.” (Page 98)
“Fourth National Communication of the Czech Republic on the UNFCCC and Demonstrable Progress Report on
Implementation of the Kyoto”, 2005
Of course, it will be very difficult to aim at any condemning based on this text, since it only has a declaratory dimension, limited to the NPMICC and relying mainly on the national Czech will. Still, it might be a further argument to prove the inconsistency of the Czech policy, while using other legal actions.
The Hague Protocol
The Hague Protocol of 1999 aims at the protection of cultural property.
Czech Republic is a part to it since 2007.
“Article 10
Cultural property may be placed under enhanced protection provided that it meets the following three conditions:
a. it is cultural heritage of the greatest importance for humanity”
a. it is cultural heritage of the greatest importance for humanity”
Does not Micronesia have “cultural property”, which is a “culture heritage of the greatest importance for humanity”?
However, it is not sure to what extend Micronesia could effectively refer to this text: the Hague Protocol is essentially directed to the cultural protection in case of armed conflicts. FSM could only rely on the ICJ’s interpretation.
The International Court of Justice is the fundamental organ of the United Nations based in The Hague since 1945 offers legal possibilities for Micronesia. It is sometimes called “World Court” on the ground of its international dimension. The ICJ has two functions:
- “Settling in accordance with international law the legal disputes submitted to it by States”
- “Giving advisory opinions on legal questions submitted by duly authorized international organs and agencies.”
Every member of the UN is a party to the Court’s Statute (this is part of the UN Charter). When the Court rules, the judgment is final and without appeal. If one the involved States fails to comply with this decision, the other party may appeal to the Security Council of the United Nations.
More problematic is the fact that the judgment relies on the compliance of both parties. In the case of Micronesia vs. Czech Republic, we can assume that Czech Republic would not accept its conviction.
The ESPOO Convention
The ESPOO Convention is a UN Convention dealing with the international environmental impact. The Convention on Environmental Impact Assessment in a Transboundary Context (ESPOO) was signed 1991.
It could be a further text for Micronesia to rely on while arguing with Czech on the international impact of Prunerov II. and the FSM right to be involved in the decision making process.
“Principle 17:
Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities
that are likely to have a significant adverse impact on the environment and are subject to a
decision of a competent national authority.”
that are likely to have a significant adverse impact on the environment and are subject to a
decision of a competent national authority.”
“Principle 19:
States shall provide prior and timely notification and relevant information to potentially
affected States on activities that may have a significant adverse transboundary environmental
effect and shall consult with those States at an early stage and in good faith.”
affected States on activities that may have a significant adverse transboundary environmental
effect and shall consult with those States at an early stage and in good faith.”
http://www.unece.org/env/eia/eia.html
The problem is that Micronesia is not part of this Convention. Yet since the ESPOO Convention has open membership, Micronesia could enter the Convention and then use it against Czech Republic. Another solution could be that another “affected state” such as Germany, at the Czech border, could attack Czech Republic on this text.
The attacking country could then sue Czech Republic in the EU Court of Justice of Luxembourg, based on the EU acquis.
The EU legal order
In the same direction, Germany or any affected EU country could use the internal EU legal order to attack Czech Republic. It is likely that pollution regulations are embodied into the EU legal order.
The attacking country could then sue Czech Republic in the EU Court of Justice of Luxembourg, based on the EU acquis.
NGOs-led actions
Of course, several NGOs got involved in the Prunerov II controversy.
- Neighbor countries’ NGOs – from Germany and Austria - pressured the Czech government.
- Green Peace activists also organized several demonstrations on the Prunerov plant grounds, and even climbed to the top of the chimney in March 2010, requesting the decommissioning of Prunerov.
- The Environment Law Service of Czech Republic, an association of lawyers, also contributed to the public debate.
http://praguemonitor.com/2011/05/26/greenpeace-protests-against-coal-power-plant-north-bohemia
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