Ukraine must ensure transparent and participatory environmental decision-making on the path towards EU accession and ecological recovery.
Yelyzaveta Aleksyeyeva
For many years, environmental democracy has been a space for cooperation between the European Union (EU) and Ukraine. As an EU candidate country negotiating accession, Ukraine is obliged to implement and comply with the respective EU legislation. Indeed, Ukraine has made substantial progress in implementing respective international and EU laws. However, as a response to Russia’s full-scale invasion in February 2022, the Ukrainian government initially limited the scope of application. It restricted certain democratic rights, particularly the right to access environmental information and public participation in environmental impact assessment (EIA). These urgent measures were adopted in violation of Ukraine’s constitution, domestic laws, and the EU acquis and were not proportionate in light of their legitimate objectives. The government’s failure to strike a fair balance between defence interests and competing concerns around transparency, democratic decision-making, and green reconstruction led to massive domestic and international pressure to revise the measures. A better balance was found by the amendments to the EIA law, which came into effect in December 2023. Balancing security concerns with obligations related to EU candidate status remains an ongoing challenge for Ukraine—one it must repeatedly address and overcome.
Unjustified and disproportional war-related restrictions
The Constitution of Ukraine, adopted in 1996, proclaims everyone’s right to a safe environment and free access to environmental information. Since pursuing its democratic development, Ukraine has overcome a severe gap in ensuring procedural environmental rights for its public. Despite beginning its democratic transition in the 1990s, Ukraine had, by 2022, implemented participatory democracy tools that surpassed those of some established European states. One of the most significant is the Single State Register of Environmental Impact Assessment introduced in 2017 – an electronic tool for carrying out EIA procedures in a transparent and user-friendly way. To transpose the EU’s Environmental Impact Assessment Directive 2011/92/EU, Ukraine established a nationwide online EIA database providing free and full access to all documents originating throughout the EIA procedure, enabling the public to follow any EIA case in the country in real-time and creating favourable conditions for soliciting comments and suggestions from various stakeholders including the general public. These reforms allowed Ukraine to finally implement the Aarhus Convention in terms of public participation in specific projects as well as to transpose the EIA directive.
At the beginning of the war, however, Ukraine’s Ministry of the Environment adopted a series of measures and practises that restricted the public’s ability to have a say in major industrial and infrastructure projects during both the ongoing war and the post-war reconstruction period.
On March 15, 2022, Ukraine’s Parliament enacted the law “On Amendments to Certain Legislative Acts of Ukraine Concerning Environmental Activities and Civil Protection for the Period of Martial Law” to expedite the reconstruction of damaged infrastructure. Among other things, the law amended the EIA law to exclude all restoration works to eliminate the consequences of armed aggression and hostilities during martial law and in the reconstruction period after the war from the scope of the EIA law. The adopted law automatically abolished the EIA procedure (and all public participation provisions within) for any restoration works both during the war and in an unspecified reconstruction period after the end of the hostilities.
To protect sensitive data and prevent unauthorised access by the aggressor state, the Cabinet of Ministers of Ukraine issued Resolution No. 263 on March 12, 2022. This resolution authorised ministries and other central and local executive bodies to suspend or restrict access to public electronic registers. Following that, the Ministry of the Environment shut down the EIA register. Later, limited access to the register was restored, yet not to the extent that meaningful public participation in the ongoing EIA procedures was allowed. Any information on pre-war EIA cases and the location of pending planned activities undergoing the EIA procedure were classified. The EIA documentation in pending EIA cases was no longer available online, but only upon a written request that had to include the personal data of the requestee along with the IP address.
In adopting these measures, Ukraine went far beyond what the respective international obligations sanctioned, even in martial law. Neither the EIA Directive nor the Aarhus Convention provides for a different legal regime applicable during wartime, meaning that even in these extraordinary circumstances, all its requirements continue to apply. The documents, however, envisage certain exceptions tied to national defence concerns. Yet, in the case of shrinking the scope of the EIA application and limiting the participatory rights in the EIA procedures, Ukraine departed far from what was allowed. The same applies to the national legislation. Both the constitution and martial law allowed the Ministry of the Environment to limit the operation of the EIA register. At the same time, the scope of the EIA application after the war and access to public information during the war should have remained unchanged and regulated by the laws of Ukraine on EIA, access to public information, and relevant by-laws. Although the adopted measures protected national defence and public security interests, Ukraine failed to strike a fair balance between these interests and the competing concerns around transparency, democratic decision-making and green development.
Domestic and international pressure counters wartime restrictions
The adopted measures sparked significant domestic and international backlash. Ukrainian environmental NGOs launched a vigorous campaign to reclaim their recently acquired participatory rights. When the Ministry of the Environment initiated a legislative process to revise EIA law and legitimise the new regime, these NGOs actively engaged in the drafting process. At the same time, the environmental NGO Environment-People-Law from Ukraine brought the issue to the Aarhus Convention Compliance Committee’s attention, which rendered its very straightforward recommendations upon consideration. In combination, these efforts led to the Ukrainian parliament adopting amendments to the EIA law that 1) overturned the shrinking of the scope of the EIA, which implied that reconstruction projects after the end of the hostilities would be subject to EIA; and 2) introduced a new EIA register that, while publicly available, takes into account the context of the war by introducing a mechanism for case-by-case limited access to sensitive information.
New challenges on Ukraine’s path to the EU and green reconstruction
Throughout the war, which has proved devastating for Ukraine’s energy and infrastructure sectors, the government introduced a series of derogations from the EIA procedure to speed up the reconstruction efforts. As a result, during martial law, many projects are being approved without an EIA procedure. While these projects are urgently needed for the economy and the population’s well-being, they are also likely to significantly affect the environment. They include constructing energy facilities and critical infrastructure, such as roads, railways, ship passages, harbours, and port installations. The question arises again whether these wartime exemptions conform with the respective EU acquis and green reconstruction principles.
The EIA directive allows derogations from its provisions in cases relevant to wartime, such as projects with defence or response to civil emergencies as their sole purpose. The directive, however, attaches certain conditions to these derogations, namely that the decisions are to be made on a case-by-case basis and that the derogations are granted only when it is deemed that carrying out EIA would hinder defence or response to civil emergencies.
It is clear that there is an urgent need for rapid approval of projects crucial to supporting the war effort and ensuring public well-being in Ukraine. Still environmental considerations must be accounted for as well. Currently, in Ukraine, there is no established procedure for a project proponent to submit a request for exemption, nor is there a competent authority to review and approve or deny such requests based on whether applying the EIA might negatively impact defence or civil emergency needs. As a result, an unidentified number of projects are automatically excluded from the scope of the EIA only by virtue of falling within a certain category of projects excluded from the EIA for the time of the war (for example, restoration of damaged infrastructure). In the absence of such a procedure, the restoration and/or replacement of any infrastructure damaged by the Russian Federation anywhere in Ukraine – from the western border with the EU all the way to the east – automatically qualifies the derogation irrespective of the effects of the EIA on defence or civil emergencies. That leaves enormous opportunities for abuse by both project proponents and public authorities.
For example, the reconstruction project for the Kakhovka Dam and power plant was approved just over a month after the tragedy, even though construction cannot begin until the left bank of the Dnipro River is liberated from Russian occupiers. While this may take years, the government bypassed the EIA procedure—which considers environmental impacts and public input—and has already started designing the new Kakhovka Dam, power plant, and associated infrastructure.
Even during wartime, civil society in Ukraine is urging the government to apply EIA exemptions responsibly. At the very least, a procedure should be established to assess whether each project qualifies for an exemption. Additionally, the Ministry of the Environment must maintain records of all projects granted such exemptions.
As a candidate country expressing a strong will to swiftly join the EU, Ukraine must comply with the EU acquis. Domestic civil society is therefore strongly advocating that the government reconsider the adopted measures to ensure they are fully compatible with relevant EU law. Additionally, the measures should adhere strictly to the principle of proportionality, meaning that any restrictions on human rights must serve a legitimate purpose and be the least restrictive means to achieve that purpose. Striking a fair balance between the national defence on the one hand and democratic decision-making and green development on the other will be a paramount challenge for Ukraine on its path towards the EU.
Yelyzaveta Aleksyeyeva is a Ukrainian public interest lawyer specialising in environmental law, transposition of environmental EU acquis and implementation of international environmental agreements. She has an LL.M. in Environmental and Natural Resources Law from the University of Oregon (USA). For over twenty years, Yelyzaveta has worked with environmental NGOs and international organisations promoting environmental reforms in Ukraine and worldwide. She is currently a senior lawyer at Environment-People-Law (Ukraine).