COMMENT: Belarus’s ecologists keep up court battle to exercise right to information on future Ostrovets Nuclear Power Plant

ingressimage_aes-ostrovec-04.jpg Photo: http://www.naviny.by/

The inapplicable Russian experience, or the Ostrovets NPP environmental impact assessment – ‘forbidden for copying or removal from premises’

The Belarusian officialdom is pushing for the construction of Belarus’s own, first ever nuclear power plant in Ostrovets in the name of this former Soviet state’s “energy independence” from Russia – even though the project is slated to proceed on Russian money, and with the help of the Russian contractor and Russian reactor technologies. In fact, Belarus already secured Russia’s preliminaryagreement to build the plant during a high-level government meeting last January. But Belarus’s resorting to Russia’s methods in pushing the project through while dealing with unfavourable public opinion is more surprising: Russia’s ways are not to be so easily imported across the border to the Republic of Belarus.

At issue is Russia’s successes in limiting the public’s access to EIA documentation on Russian nuclear power plant projects. Neither the Russian State Nuclear Corporation Rosatom, the country’s topmost nuclear authority, nor those in charge of preparing environmental impact documentation provide it to the public in full or in due accessible form. For instance, those EIA reports that were developed by the St. Petersburg-based Atomenergoproyekt – a Rosatom research and design institute purveying “engineering services for turnkey construction of modern nuclear power plants,” according to the entity’s self-description – were only available for independent viewers as abridged versions stored at a remote location in one single copy and permitted for reading on site only.

The Russian law on Public Environmental Impact Assessments, furthermore, leaves a lot of manoeuvring room for the project originator to twist the independent impact assessment process the way it may see fit – with the result that there has effectively been no independent environmental impact evaluations of Russian nuclear power plant projects done in Russia ever since the law took effect.

But following blindly the “trail already blazed” by Russia, Belarusian officials keep putting themselves in an awkward position as they forget that the laws of the two countries are not the same and that Russia, unlike Belarus, has yet to ratify the Aarhus Convention – the United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, signed in the Danish city of Aarhus in 1998. 

A first attempt to transplant the “ground-breaking Russian experience” onto the Belarusian soil was Minsk’s initial drafts of a bill called “Regulations on the Procedure of Public Environmental Impact Assessments,” prepared by the Ministry of Natural Resources and Environmental Protection of Belarus soon after the Commission for Public Environmental Impact Assessment of the Belarusian NPP demanded to see the official EIA report to make an independent expert analysis of the project.

The ministry came up with the idea of narrowing down dramatically any avenues available to the public to conduct their own evaluations by establishing a “permission-granting principle” for the procedure and a series of other limitations. The Environment Ministry then brought its idea up for discussion among a number of Belarusian NGOs, including Ecodom. By the time the officials started promoting this new concept two cases had already been initiated by the Aarhus Convention’s Implementation Committee regarding Belarus’s infractions of the convention’s provisions – one had to do with Ostrovets, where initial construction works had been started despite vigorous objections from the neighbouring Lithuania, and the other with Neman Hydropower Plant, another thorny issue undermining Belarus’s international standing as far as environmental concerns.

The two cases are probably the reason why the Environmental Protection Ministry’s ideas never quite got traction and the anticipated limitations on the public’s access to official EIA reports were never translated into a valid legislative act.

Yet, Belarusian officials did find a way – in circumvention of the laws that are in effect – to deny the public the possibility to have the official Ostrovets EIA report for independent experts’ perusal. The documents are the subject of an independent environmental evaluation, and Ecodom has insisted on seeing them in full since December 2009, in complete conformity with the Aarhus Convention.

Ecodom’s long correspondence with the project originator led to a permission, valid for one month, to access the documentation during business hours only on the premises of the State Enterprise “Directorate for the Construction of the Belarusian NPP.” Ecodom representatives were also forbidden to copy or remove the documents from the building. The latter was not stated as a condition in any government documents but was expressed orally as a direct order by the Belarusian Deputy Minister for Energy Mikhail Mikhadyuk during a meeting that gathered together the side of the project originator, Energy Ministry bureaucrats, the developers of the official EIA version, and the Environment Ministry – and which was witnessed, via an official invitation, by the executive secretary of the Commission for Public Environmental Impact Assessment of the Belarusian NPP.

A year of litigation yields no win for Belarusian environmentalists

The public organisation Ecodom filed its first lawsuit seeking to establish its right to access EIA documentation on Ostrovets from the Belarusian NPP Construction Directorate for independent assessment last March 17; the lawsuit was registered in the jurisdiction of the Ostrovets Regional Court. On June 16, the court ceased the proceedings citing “lack of relevant jurisdiction.” The court also recommended that Ecodom bring its legal action to a business court. In a statement given to the Belarusian publication Naviny.By, Ecodom’s legal counsel Sergei Magonov said the Ostrovets Regional Court had violated procedure when it made its decision to dismiss the litigation.

“If a civil action has been put into motion, it cannot be ceased for reasons of lack of jurisdiction. They should have either rejected the lawsuit from the get-go or, once they have accepted it for consideration, hear it to the end,” Magonov said.

In late August, Ecodom brought its suit to the Business Court of Grodno Region. But it was not until December of that year that the ball finally started rolling. On December 29, the court held a preliminary hearing on the case. Still, having heard the positions of both sides, the court on January 12, 2010, ruled to dismiss the case.

The Ostrovets Construction Directorate understands perfectly that it is in violation of the Belarusian legislation when it refuses to provide the EIA documents for an independent analysis. As always, however, the atomic officials did not bother going beyond concealing their shenanigans in the clumsiest of fashions, and the trick the Directorate employed to cover up its infraction was childish in its simplicity: On January 12, as the sides were preparing to meet in court, and without ever letting Ecodom know, the officials posted the full 3,500-page version of the EIA report on the Directorate’s website, then demonstrating a screen capture print-out to the court as evidence that the report was now in unlimited access. 

The full version was removed from the website a few days after the hearing. The court, however, had taken the Directorate’s show of good faith at face value and rejected Ecodom’s suit. The business court also dismissed out of hand Ecodom’s argument that the Directorate never informed the plaintiff of the intention or act of posting the information and that no hard copy had ever been provided either.

Court of appeals crushes hopes – for now

An appellate court, where Ecodom turned to ask to void the business court’s decision, upheld it in its ruling of February 15. The Grodno Regional Business Court’s ruling to dismiss the organisation’s case against the Belarusian NPP Construction Directorate over withholding environmentally significant information on the project stood unchanged.

The plaintiff’s attorney, Ecodom’s counsel Magonov, told the appellate court of the trick the Directorate played with its posting – and then removing – the full EIA version on its website the day of the business court’s hearing. The defendant’s side argued, in turn – thus showing its complete lack of competence in the matter – that the law ostensibly does not provide for the obligation to make access to a project’s full EIA version for the public. An edited-down version, which is available on the Directorate’s website, is quite enough, their argument went. The three business court judges of the appellate division accepted these explanations without critique and left the previous court’s decision standing.

In its rush to make itself agreeable to the nuclear industry, the court of appeals violated both the existing standards of material law and the regulations of the Aarhus Convention. Ecodom’s chairwoman Irina Sukhiy told Bellona:

“Article 74.4 of the Law on Protection of the Environment of the Republic of Belarus describes the procedure for providing ecologically significant information upon a request from the public. The language prescribes that information be given in the form it is requested. In our case, that will be both in printed and electronic form. The court and its appellate division did not apply this provision of the law and did not establish us in our rights.”

The executive secretary of the Commission for Public Environmental Impact Assessment of the Belarusian NPP, Tatiana Novikova, added:

“The Belarusian law says that one and the same set of documents must be provided both for an environmental impact assessment conducted by the state and an independent public one. We did not receive access to these documents; the invitation to come to the building of the [State Enterprise ‘Directorate for the Construction of the Belarusian NPP’] during work hours [to look at the report] without taking [it] out or copying cannot be considered such an act of providing information.”

According to Sukhiy, Ecodom intends to pursue action further with two higher courts, seeking to enforce the NGO’s right to obtain information on the nuclear power plant project Belarus is implementing in Ostrovets.

What is official Minsk hiding?

Independent experts did have time to study the full version of the official EIA report when access to the documents was granted in the Construction Directorate’s building. That information, combined with materials the specialists had at their own disposal, allowed them to make their own conclusions regarding the risks of the Belarusian NPP project and make the findings available to the general public.

It would seem that the circumstances were favourable enough for the Directorate to save face and comply with the law, especially since providing – or choosing not to – full access to the documents the environmentalists have been insistent on seeing would hardly change anything in the independent experts’ conclusions.

But both the NPP Construction Directorate and the Energy Ministry have for the duration of the past year resisted this one simple action of following the law. There may be a number of reasons for such reticence. One of them could be the authorities’ unwillingness to expose facts of manipulation and doctoring up information relating to the potential dangers of the planned nuclear power plant for the population and the environment. Independent experts both from Belarus and countries that may be directly affected by the NPP’s operation have said environmental and health risks anticipated from the project were downplayed significantly in the official EIA report. Even if disclosure of such unpleasant truths will hardly be a news flash for the Belarusians, the official documents, once publicised, will reveal significant discrepancies – of the sort that could lead to the project originator being held liable for misinforming the public of the project’s deficiencies.

“The Belarusian NPP IEA documentation, in its 3,500-page version, contains memoranda from a number of institutes of the Academy of Sciences of Belarus. They testify to the danger of the planned NPP for the environment and population health. But this is exactly where the Belarusian NPP EIA report gets interesting, which is that what appears as basically objective information on the NPP’s dangers is coupled with contradicting conclusions about its ‘complete safety,’” Novikova told Bellona. “Which is why in its current version, the EIA documentation represents a disjointed mix of phrases and scraps of text. Information gaps are in plain sight in the EIA report: There are no data from a comprehensive sociological research, which is obligatory under the Belarusian law, and the studies of the already selected Ostrovets site were not conducted in full. This and other information in the EIA report is proof that the Belarusian NPP project is unacceptable.”

Another reason why the authorities are so reluctant to grant the public access to the full version of the report may be that the nuclear power plant is expected to be built to an as-yet untested Russian reactor design dubbed AES-2006 – for NPP-2006, a project developed by Russia’s Rosatom – and Minsk may be fearing a worsening of its relations with Russia as a result. In fact, the official EIA report contains information on the project that would also prove relevant to other NPP projects Russia is pursuing at home: Leningrad NPP-2 (a second stage of construction near St. Petersburg), the Baltic NPP in Russia’s westernmost enclave of Kaliningrad (which is a region close to the Belarusian and Lithuanian borders), and Novovoronezh NPP-2. A decision by Minsk to disclose such information to the Belarusians might effectively compromise Moscow’s position of withholding it from the Russian population.

But one way or another, the time to do the right thing has passed: By digging their heels in on the right-to-information issue, those behind the controversial Ostrovets project will change little in the downward plunge their reputations have taken – or the fact that the truth about the project has already found its way to the Belarusian citizens.

Maria Kaminskaya