In Lithuania, administrative courts cover the legality review of administrative decisions, including in the field of environmental protection. In reviewing the latter decisions, a proper balance between the discretion of public administrative authorities and the discretion of review granted to the courts has to be ensured. The post is drawn from the chapter of a comparative book “EU Environmental Principles and Scientific Uncertainty before National Courts”, which explores the dynamics driving how courts across Europe, and beyond, understand and analyse scientific information in nature conservation. The post analyses the scope and intensity of judicial review of Lithuanian administrative courts (including aspects such as the limited control of administrative discretion, the active role of a judge in the evidence-gathering phase as well as the role and position of expert witnesses) and unfolds the issue of scientific uncertainty in the environmental case law.
Scope and Intensity of Judicial Review of Lithuanian Administrative Courts
Environmental disputes fall under the jurisdiction of the administrative courts as specialized environmental courts have not been established in Lithuania. Administrative courts in Lithuania recognize areas that are reserved for the exercise of discretionary powers by administrative authorities. Judicial control in these areas is limited to controlling whether the administration acted objectively and impartially and whether considered all relevant circumstances while exercising its discretionary powers.
When talking about the limited discretion of administrative courts to legality review, it is worth bearing in mind that the courts can control administrative actions from the standpoint of the respect of human rights and legal principles, such as the principles of subsidiarity, proportionality, objectivity, principles of good administration, as well as environmental principles.
The Active Role of the Judge and Link with the Expert Witnesses in the Evidence-Gathering Phase
Usually, arguments and evidence in support of a position are presented by the parties to the proceedings, however, the active role of the judge in the evidence-gathering phase deserved more discussion. It means that when, for example, in a particular case, it becomes apparent that additional evidence must be adduced to establish all the relevant circumstances of the case allowing a comprehensive, objective examination thereof, the court may take certain procedural steps for the necessary documents to be provided, witnesses to be called, examinations to be ordered, and experts to be invited. On the other hand, the active role of the judge does not oblige the court to satisfy all the requests of the participants in the proceedings – the court simply must consider the requests of the participants in the proceedings and resolve them accordingly.
Environmental cases are characterized by the fact that special scientific knowledge and expertise are sometimes required to assess the evidence. Specialist explanations and expert conclusions are used for that purpose. A specialist is required when the data collected in a case or provided by the parties is contradictory and it is necessary to assess the evidence that has already been gathered using expertise that the court does not have. The court or a judge appoints an expert in cases making questions arising where specialist knowledge in the field of science, art, technology, or craft is required. Unlike experts, there is no unified list of specialists. It should also be noted that the data contained in an expert’s opinion is generally more dependable and objective than data from other sources of evidence.
Scientific Uncertainty in the Environmental Case Law of Lithuania
To illustrate the above-mentioned situation, an example can be useful: in a case, the court assessed the legality and reasonableness of the refusal by the State Service for Protected Areas to change the boundaries of a protected area by removing the applicants’ plots of land from it. The court assessed both the legal (in terms of compliance with the applicable legal framework and the limits of the institution’s competence) and the factual lawfulness of such a decision. In assessing the factual validity of the decision, the data on the presence of protected environmental elements in the respective territory, the methods of determining the presence of these values in that territory, and their reliability and time were analysed. First, the court analysed the data received from the Central Data Bank of the Real Estate Register. The court also assessed the historical information provided by the State Service for Protected Areas, which indicated that the protected area in the disputed territory was established as early as 1974. The State Service for Protected Areas also provided information that in the framework of the project ‘Inventory of natural habitats of European Community importance, the establishment of criteria for favourable conservation status and development of a monitoring system’, implemented by the Ministry of the Environment in the period from 2011 to 2015, Lithuania had inventoried natural habitats of European Community importance. The Service indicated that through this inventory, it was found that the natural habitats of Community importance were present in the protected area on the land plots of the applicants. The court then concluded that the contested decision (refusal) provided the applicants with sufficient information, in relation to which the applicants did not provide any rebutting evidence, and that there were therefore no legal grounds to oblige the service to re-examine the applicants’ application. To conclude, in this case, the active role of the court can be noted. The active role of the court in administrative proceedings implies that not only the circumstances of the case put forward by the parties to the proceedings but also the circumstances that the court deems relevant may be investigated and evaluated. If necessary, the court may invite the persons involved in the case to submit additional evidence, obtain the necessary documents from those persons or on its own initiative, or request explanations from officials.
Scientific Uncertainty in the Environmental Case Law regarding EIA
Regarding the legality of decisions regarding the environmental impact assessment (EIA), the administrative courts have established certain (uniform) criteria to be borne in mind. For example, during the screening stage, it is sufficient to assess whether the planned economic activity is likely to have an impact, without deciding at this stage on the specific extent of the potential impact, i.e., at this stage it is not necessary to resolve completely any scientific uncertainty if such exists. Even though the law stipulates what must be considered by the competent authority when adopting a screening conclusion, it does not detail the grounds on which it must accept a conclusion to conduct an environmental impact assessment or not – the final decision is left to the discretion of the competent authority. However, when adopting the final screening conclusion, at least the criteria set out in the law must be assessed and a general statement must be made as to which specific environmental factors (fauna, flora, soil, water, etc.) are likely to be adversely affected. Also, the legality of an administrative act must be assessed by reference to the basic principles of the rule of law and legal certainty. Accordingly, the courts will strike down decisions where they are not adequately motivated (justified) or where the authority did not clearly indicate why certain data or circumstances were not considered in the final decision.
Although the administrative court must be active, assisting in the exercise of the procedural rights of the parties to the proceedings, and the full and objective examination of the case, its activity and powers are limited. The court is not entitled to change the cause of action or the subject matter of the claim on its own initiative and may not, generally, go beyond the limits of the claim during the proceedings. According to case law of Lithuanian administrative courts, where there is insufficient evidence to support the facts alleged by either the applicant or the defendant, the decision shall be given against the party who bears the burden of proving the unproven facts.
Scientific Uncertainty in the Environmental Case Law regarding Natura 2000
The same principles are applied in Natura 2000-related cases. A good example of this approach is a decision of the Supreme Administrative Court concerning an EIA decision adopted by the Environmental Protection Agency, which prohibited the extraction of peat due to the possible negative impact of such activities on protected species. The dispute in the present case arose from the fact that the EIA report submitted by the operator did not, in the opinion of the Environmental Protection Agency, resolve the doubts as to the possible negative impact of the planned activity on the environment in a particular area. Although the operator had requested it, neither the Environmental Protection Agency nor the court ordered any additional expertise to analyse the possible negative environmental impact. From the description of the planned activity (felling of forest and shrubs, grubbing and removal of stumps, construction of access roads, construction of a production site, excavation of drainage and drainage ditches, etc.), the court concluded that the planned activity could not be described as minimal interference with the natural environment without adverse effects on the status of the site and habitat of the marsh satire (a protected bird species), as well as the status of the sites and habitats of eight other bird species and three mammal species. The panel of judges concluded that individuals who planned to conduct economic activities had to prove that the planned activities would not harm the environment. In this specific case, the operator sought to take the issue of environmental impact assessment to court and asked the court to order an expert examination. However, the court did not grant expert examination and found that the operator failed to prove that the planned activities would not cause violations of the relevant legal provisions and (or) negative impacts on the environment. On the contrary, the negative impact on the protected habitats was obvious. Therefore, the court upheld the negative EIA decision of the Environmental Protection Agency.
The case law examined above shows that, when faced with complex scientific questions, Lithuanian courts usually do not question the administration’s assessment, provided that it is well-reasoned and based on facts and legal provisions. The Supreme Administrative Court has consistently held that, where the institutions are granted a relatively wide margin of discretion in implementing certain legal norms or in pursuing a policy in a certain area (which is the situation of environmental cases), the courts examine only whether, in exercising its discretion, the public administrative body has made a manifest error (in the assessment of the circumstances and the application of the law); whether it has abused its powers; whether it has manifestly exceeded the limits of its discretion; whether it has complied with the applicable procedural rules; whether the facts on which the disputed choice is based are accurate; and whether the act/action is consistent with the aims and objectives for which the institution was established and the powers conferred on it.
In addition, it should be mentioned, that it is not sufficient for the applicant to set out the allegations (in a general manner) which call into question the legality and reasonableness of the administrative decision, but it is necessary for the applicant to set out the circumstances and to provide arguments and evidence in support of the doubts raised. However, if the court concludes that the administrative decision is not substantiated enough by the facts, or is in violation of legal provisions, the court may annul the contested decision/act (or part of it) or order the administrative entity concerned to remedy the infringement or comply with any other court order.
Posted by Dr Jurgita Paužaitė-Kulvinskienė, professor at Vilnius University Law Faculty and Dr Indrė Žvaigždinienė, associate professor at Vilnius University Law Faculty
Suggested citation: J. Paužaitė-Kulvinskienė and I. Žvaigždinienė, “Handling environmental cases in administrative courts: Lithuania”, REALaw.blog available at https://wp.me/pcQ0x2-xD