European Commission v. Kingdom of Spain, ECJ C-404/09 (2011) (European Court of Justice)
November 24, 2011
The European Commission alleged that the kingdom of Spain approved two open-cast coal-mining projects without properly evaluating the direct, indirect, and cumulative environmental impacts of the mines. Among other things, the Commission argued that the environmental impact assessments for each mine lacked any consideration of the cumulative impacts of simultaneously operating, multiple open-pit mines in close proximity to each other. (The Commission had included a third coal-mining project, but the complaint related to that project was dismissed because the application for authorization for the mine was submitted at a time when the European Union EIA Directive did not apply to open-cast mines).
The European Court first clarified that cumulative effects analysis is a mandatory part of the EIA process, and is not discretionary. See para. 77. It stated that an EIA must include “an analysis of the cumulative effects on the environment which that project may produce if considered jointly with other projects, in so far as such an analysis is necessary in order to ensure that the assessment covers examination of all the notable impacts on the environment of the project in question.” Id., para. 80. The Court declared that the assessments prepared prior to authorizing the two coal mines were inadequate because they lacked a cumulative effects analysis.
The kingdom of Spain attempted to remedy the defects in the EIAs by producing a report prepared after the litigation had commenced, and several years after the mines had been authorized, that evaluated the combined impacts of the coal mines. The Court rejected this approach, stating that the defective EIAs could not be remedied by the post hoc report because a cumulative impacts analysis must be conducted before a project is authorized – not after the fact. See para. 83.