EIAs: grubbing ups and path clearances for overhead electrical power lines to be treated differently

Introduction

When it comes to clearing a path in a forest to construct and operate an overhead electrical power line, electricity grid operators face various legal issues.

The clearance of a path involves felling trees underneath power lines to guarantee a minimum safe distance from the electric cables.

In recent years, the crucial legal question has been whether such path clearances must be considered when determining whether a specific project (ie, the installation of electrical power lines) is subject to an Environmental Impact Assessment (EIA).

While the European Court of Justice (ECJ) clarified this issue in 2018 (at least for non-governmental organisations), in light of the applicable EU EIA Directive (2011/92/EU),(1) it remains unclear whether grubbing ups and path clearances should be treated in the same way in terms of their respective environmental impacts. In particular, must the permitting requirements of the Austrian Forestry Act(2) stipulated for grubbing ups also be applied to path clearances in an EIA permitting procedure by reason of EU law?

The Supreme Administrative Court recently addressed this question in its decision on the 380kV overhead electrical power line in the province of Salzburg (380kV Salzburg line).(3)

As one of the most significant infrastructure projects in recent history, the 113km Salzburg line is crucial for the security of Austria's electricity supply, but also highly controversial. After years of planning and complex EIA proceedings, through the most recent decision of the Surpeme Administrative Court, the project finally holds its (legally binding) EIA permit.

Grubbing ups and path clearances under Forestry Act

Due to the distribution of competences between the federation and the nine provinces, the Austrian environmental law regime is fragmented. In general, a separate permit is required under each of the applicable laws.

However, Austrian legislation – based on the EIA Directive – requires an EIA for certain major projects that might significantly affect the environment. The EIA is integrated into a comprehensive and thorough permitting procedure before a single competent authority (a one-stop shop). Pursuant to Section 17(1) of the EIA Act,(4) in an EIA procedure, in addition to the specific prerequisites set out in the EIA Act, the permit requirements of the relevant federal and provincial acts (eg, the Forestry Act) must also be applied to the specific project. An EIA permit can be granted only if all of those approval requirements are met. Therefore, the respective prerequisites of the Forestry Act discussed below must also be applied in EIA proceedings.

Grubbing ups and path clearances are subject to different legal frameworks under the Forestry Act:

• 'Grubbing up' is defined as the use of the forest floor for purposes other than forestry.(5) Due to this broad definition, actions that do not involve the felling of a single tree may also qualify as grubbing up. For example, according to case law, the use of forest soil as a meadow without any felling can be regarded as grubbing up.(6)
• Pursuant to Section 17 (1) of the Forestry Act, grubbing up is generally prohibited. Exceptions may be granted if there is no special public interest in maintaining the specific area as a forest.(7) Further, the authority may grant a permit for grubbing up if the public interest in another use of that specific area (especially for energy industry purposes) outweighs the public interest in maintaining the area as forest.(8) In the interest of mitigating the effects of the grubbing up, the authority may require the applicant to reforest a non-forest area.(9)
• Chapter VI of the Forestry Act ("Use of forests") contains, among other things, specific provisions for path clearances. In general, in immature high forest stands, clear-cutting and the removal of individual tree trunks beyond what is necessary for maintenance are prohibited.(10)
• Upon request, the authority may grant exceptions if the clearance of a path is necessary to install a power line and for the duration of its lawful existence.(11) Clearing a path for power lines can also mean felling trees before they reach a certain height or planting small trees or bushes that do not obstruct the power line. In addition, the line owner must ensure the timely reforestation of the line area after each felling, as far as the existence of a power line installation precludes the full development of tree height growth on the line and an exemption permit has been granted (reforestation obligation).(12)

The Forestry Act stipulates different requirements for granting the respective exemption permit for grubbing ups and path clearances. Due to the outlined comprehensive approach of the EIA Act, the permit requirements set out in the Forestry Act must be applied in the EIA procedure.

Path clearances may be subject to EIA

Under Austrian law, the EIA permitting procedure is distinguished from the EIA determination procedure. In the EIA determination procedure, the competent authority must ascertain whether a project falls within the scope of the EIA Act and therefore whether an EIA permitting procedure must be carried out.

Before its amendment, the EIA Act (at least from its wording) required an EIA only for major 'grubbing ups' within the meaning of Section 17(1) of the Forestry Act.

In a 2017 EIA determination procedure, the Supreme Administrative Court found that path clearances cannot be qualified as 'grubbing ups' within the meaning of the Forestry Act (ie, the use of the forest floor for purposes other than forestry) and that, therefore, an EIA might not be required under the EIA Act. The court doubted the correct transposition of the EIA directive in conformity with EU law; hence, it referred the question of whether path clearances fall within the concept of 'deforestation for the purposes of conversion to another type of land use', as set out in Point 1(d) of Annex II to the EIA Directive, to the ECJ.(13)

In its preliminary ruling, the ECJ recognised that path clearance operations in a forest for the construction and operation of an overhead electrical power line are covered by Point 1(d) of Annex II of the EIA Directive.(14) For the purpose of EIA determination proceedings, grubbing ups and path clearances are 'deforestations' within the meaning of the EIA Directive. Thus, path clearances must be considered when determining whether a specific project (ie, the installation of electrical power lines) should be subject to an EIA.

Driven by the ECJ's decision, the Austrian legislature amended the EIA Act.(15) Since November 2018, 'path clearances' within the meaning of Section 81(1)(b) of the Forestry Act may also require an EIA permitting procedure if a certain threshold is exceeded.

380kV Salzburg line

Federal Administrative Court decision
On 26 February 2019 the Federal Administrative Court granted Austrian Power Grid AG, pursuant to the EIA Act, an EIA permit for the construction and operation of the 380kV Salzburg line.(16) In its findings, the court assumed a grubbing-up area of approximately 200ha and path clearances of approximately 600ha. The grubbing ups and path clearances were to be regarded as negligible or of medium to minor significance for the environment.

Appeal
The applicants' appeal of this permit decision to the Supreme Administrative Court was primarily based on the abovementioned ECJ decision. The applicants claimed that the distinction between grubbing up and clearance of a path in EIA permitting procedures would be contrary to EU law in view of the ECJ ruling. In the present case, the area for grubbing up would not be 200ha but approximately 800ha. Therefore, the public interest in the use of the area for energy industry purposes would not outweigh the public interest in maintaining this area as a forest. Therefore, an EIA permit for the 380kV Salzburg line would not have been granted.

In summary, the Supreme Administrative Court had to clarify whether path clearances must be qualified as grubbing ups, and therefore whether the approval requirements for grubbing ups set out in Section 17 of the Forestry Act should also be applied to path clearances based on EU law.

Supreme Administrative Court decision
The court first emphasised that the cited ECJ decision dealt solely with the question of whether path clearances might trigger an EIA permitting procedure pursuant to the EIA Act or the EIA Directive, respectively. However, the ECJ had not addressed whether grubbing ups and path clearances must be treated equally in an EIA permitting procedure in terms of potential environmental impacts and approval requirements.

The Supreme Administrative Court highlighted the different objectives of the EIA determination procedure and EIA permitting procedure. According to Article 3 of the EIA Directive, an EIA must identify, describe and assess the specific environmental impacts of the respective project with respect to factors such as:

• human beings;
• fauna and flora;
• water;
• air; and
• climate.

In contrast, the EIA determination procedure schematically assesses whether a specific project should be subject to a subsequent EIA permitting procedure based on certain definitions and thresholds. Thus, ECJ Decision C-329/17 was irrelevant for the present question of the alleged equal treatment of grubbing ups and path clearances in EIA permitting procedures.

Since the EIA Directive does not stipulate any prerequisites under forestry law, the application of the Forestry Act in EIA permitting procedures (in accordance with Section 17(1) of the EIA Act) and thus the differentiation between grubbing ups and path clearances remains. In short, while the authorisation of grubbing up requires a thorough balance of interests possibly combined with the obligation to reforest a non-forest area, a path clearance can be granted if it is necessary for the purpose of constructing a power line installation and for the duration of its lawful existence.

Pursuant to Section 13(10) of the Forestry Act, the line owner must ensure the timely reforestation of the line area after each felling, as far as the existence of a power line installation precludes the full development of tree height growth on the line. Therefore, a lower environmental significance can legitimately be attributed to path clearances than to grubbing ups, according to the Supreme Administrative Court.

The court held that:
From the point of view of EU law, in EIA permitting procedures it is not necessary to classify the clearance of a path as grubbing-up and therefore to assume in the present case that the area for grubbing-ups covers 800 ha. The EIA Directive does not require the application of the relevant prerequisites for grubbing-ups laid down in the Forestry Act to path-clearances as well.

Hence, the court dismissed the applicants' appeal.

Comment

Combined, EU and Austrian law render the correct distinction of grubbing ups, path clearances and deforestations, as well as their respective treatment in different types of proceeding, difficult. In this decision, the Supreme Administrative Court has clarified another fundamental question regarding grubbing ups and path clearances.

Although grubbing ups and path clearances are both 'deforestations' within the meaning of the EIA Directive for the purpose of EIA determination procedures, and thus path clearances need to be considered when determining whether a specific project is subject to an EIA, this has no impact on EIA permitting procedures.

In view of the different objectives of EIA determination procedures and EIA permitting procedures, and the lack of specific forestry approval requirements in the EIA Directive, the court's ruling on the following is entirely consistent. Path clearances are not to be qualified as 'grubbing ups' within the meaning of the Forestry Act.

The different treatment of grubbing ups and path clearances in EIA permitting procedures fully complies with EU law. As such, the court's decision on the 380kV Salzburg line should be endorsed.

Endnotes

(1) EU Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment.
(2) Federal Law Gazette 1975/440, as amended.
(3) Supreme Administrative Court, 15 October 2020, Ro 2019/04/0021 et al.
(4) Federal Law Gazette 1993/697, as amended.
(5) Section 17(1) of the Forestry Act.
(6) Supreme Administrative Court, 25 October 1978, 0075/78.
(7) Section 17(2) of the Forestry Act.
(8) Section 17(3) of the Forestry Act.
(9) Section 18(3)(b) of the Forestry Act.
(10) Section 80(1) of the Forestry Act.
(11) Section 81(1)(b) of the Forestry Act.
(12) Section 13(10) of the Forestry Act.
(13) Supreme Administrative Court, 11 May 2017, Ro 2017/04/0002.
(14) ECJ, 7 August 2018, C-329/17, Gerhard Prenninger et al.
(15) Federal Law Gazette I 2018/80.
(16) Federal Higher Administrative Court, 26 February 2019, W155 2120762-1.

First published on ILO, 25.01.2021
author: Christian Holzer