More efficient permit processes for the green transition

If the activity can be assumed to have a significant effect on the environment, a specific environmental impact assessment must be conducted. Conducting a specific environmental impact assessment entails, among other things, that delimitation consultation must be held on how to delimit an environmental impact assessment report and that an environmental impact assessment report must be produced. The county administrative board must during the delimitation consultation strive to ensure that the environmental impact assessment report and the application includes the delimitation and scope needed for the assessment. The operator may request that the county administrative board report its assessment on the matter, but the report is not binding.

– “It is important that as much as possible is taken up early, preferably as early as in the consultation process,” says Anna Månsson. "The more you can work out early, the smoother the process. And if the proposed location where operations are to be conducted does not meet the requirements of the environmental code, it is best that this comes up as early as possible.”

The permit process is initiated by the operator

After the consultation process, the operator chooses whether to proceed and apply for a permit, and if so, submits an application and an environmental impact assessment report of the extent required to the assessment authority. This is where the actual permit process begins. For the permit process to work efficiently, it is important that the supporting materials are as complete as possible. Otherwise, multiple supplements to the materials will be necessary and this does not benefit any of the concerned parties.

Once the assessment authority considers the application to be complete, this is announced and the environmental impact assessment report is released. The application is sent out for formal referral to referral bodies and possibly other interested parties in order for the assessment authority to receive opinions on the content. At this stage, the public will also have the opportunity to express their views – for a period of at least 30 days.  The purpose of this provision is to ensure the public's ability to participate effectively in the permit process and it is a minimum requirement from the EU. The assessment authority may decide on a longer period for opinions to be received.

Opinions are submitted to the assessment authority and the company may then respond to the opinions.

– “If the case is heard in the land and environment court, a primary hearing and appraisement are usually held, i.e. when actual operations and their location are examined,” says Anna Månsson.

The environmental impact assessment delegation has the opportunity to hold a public meeting and appraisement, but written processing is most common. A judgment or decision will then be made. The decision of the environmental impact assessment delegation can be appealed to the land and environment court and thereafter to the land and environment court of appeals. The decisions of the land and environment court can be appealed to the land and environment court of appeal if leave to appeal is granted. In some cases, the judgments of the land and environment court can be appealed to the supreme court.

Appeal from litigants

A decision may be appealed, among other things, by those concerned. There is no uniform and clear definition of the term litigant. For someone to be a litigant in relation to a decision, the decision must concern them in a more concrete way. This is usually expressed as affecting their legal position or concerns, an interest that has in some way been recognised by due process of law. According to the preparatory work to the environmental code, the interpretation of who is to be seen as a litigant must be generous.

– “Environmental organisations, for example, also have the right under certain conditions to appeal decisions on permits,” says Anna Månsson. “There is also a provision in the environmental code that states that certain listed authorities are entitled to take legal actions to safeguard environmental and other public interests. This means that they also have the right to appeal decisions regarding permits. A municipality may also take legal actions to safeguard environmental and other public interests within the municipality.”

Fifty-nine assessment cases were appealed in 2020, where the land and environment court was the first instance. Accounting for the largest part, 40 percent, was a government agency or municipality.

Seventy-one assessment cases were appealed in 2020, where the environmental impact assessment delegation was the first instance. The great majority, 66%, were appealed by the applicant.

Long processing time

The processing time in days for appealed cases concerning environmentally hazardous activities with the land and environment court as the first the instance, and which received a final judgement in 2020, was an average of 853 days. That is, nearly two and a half years from application to judgement by the upper court.

The processing time in days for appealed cases with the environmental impact assessment delegation as the first instance, and which received a final judgement in 2020, was an average of 643 days.

– “There are no statistics for the total circulation time for cases that were referred back from the land and environment court or the supreme court to a lower court where the proceedings continue,” says Anna Månsson.

RISE can provide support

RISE has identified four areas where we can make a big difference. These are the consultation process, decision-making materials, expertise and digital solutions.

Consultation process

A well-executed and effective consultation process is an important piece of the puzzle for attaining a successful permit process. RISE can contribute to developing the consultation process and achieving more time-efficient activities for both industry and government officials. Through workshops, for example, where we gather the various participants, RISE identifies problems and solutions for a more efficient consultation process. It is about finding better processes together, increasing dialogue and building trust.

Decision-making materials

Having the right decision-making materials is extremely important. RISE can contribute to preparing advanced decision-making materials and help with information on how a sustainable innovation affects the enterprise, how the environment will be affected and how sustainability aspects and goals are influenced at local, regional and global levels in order for the operator to obtain the correct materials for the permit process. RISE can, together with clients, develop models for managing and/or clarifying both balances of interests and conflicts of interest. The permit process often involves weighing different interests against one another. By collecting, compiling and clarifying information, better decision-making materials can be prepared. For example, it can be a matter of developing tools and support for systematic management of conflicts of goals.

Expertise

To facilitate matters both during and before the permit process, RISE can also contribute with expertise in several relevant areas of the process – for example, artificial intelligence, water, mineral extraction, electrification, hydrogen and CCS, as well as areas with system perspectives such as circular transition, skills transition and legal expertise on permit processes.