An environmental impact assessment (EIA) of the regulator and hydroelectric power plant (HEPP) project was requested by a company engaged in energy electricity generation, the Ministry of Environment and Urbanization (Administration), and the EIA positive decision was made by the Administration on the project.
The applicant filed a lawsuit in the administrative court with a request to cancel the temporary acceptance offer document, the Temporary Acceptance Minutes and some administrative actions related to the said project due to the positive decision of the EIA on the aforementioned project. Stating that the information provided in the EIA report does not reflect the truth, the applicant claimed that the EIA’s positive decision on the project had eliminated environmental rights. The Administrative Court decided to dismiss the case with a positive decision of the EIA in terms of a request to cancel the temporary acceptance offer document and the Temporary Acceptance Minutes, and to reject the case without examination on the grounds that the mentioned actions are not final and necessary actions to be performed in terms of a request to decide on the cancellation of other administrative actions. The applicant has filed an appeal against this decision. The Council of State decided to uphold the decision by rejecting the appeal request on the grounds that the decision of the administrative court and the grounds on which it is based are in accordance with law and procedure and that there is no reason to overturn it.
Count
The applicant stated that a commitment was made for the project that was not technically possible to fulfill, and the fact that the water that was committed to be released to the streambed would not be given due to the storage facility built above the project was not included in the expert report. In addition, the applicant stated that the pond planned to be established was not mentioned in the EIA report and that this issue was not taken into account by the courts of instance. As a result, the applicant stated that a holistic environmental assessment had not been established due to the incomplete trial and claimed that his right to respect for private life had been violated.
Evaluation of the Court
An EIA for investments and development and economic development without destroying the environment without polluting the nature of activities and the implementation used in the decision-making process influencing, therefore, decision-makers and their decisions in a healthy way and to be able to give the option of producing the positive and negative aspects of these options to determine which is a method. The main element that is tried to be protected by EIA is the environment and the assets in this environment.
It is clear that public authorities have a wide discretion due to the complex nature of environmental decision-making processes. In this context, it is not the duty of the Constitutional Court to supervise the validity of the decision made by the public authorities on the construction and operation of a hydroelectric power plant in the area in question. However, in the process, Dec is important to determine whether there are guarantees that will serve to establish the necessary balance between the basic rights of the individual and the public interest in question, and in determining whether the specified obligation has been fulfilled, it should be determined whether the procedural guarantees in question have been observed in the context of environmental issues.
In the concrete case, there is no claim that the applicant’s effective participation in the project process has not been achieved. The applicant stated that an impossible commitment had been made regarding the project, that the water that had been committed to be released to the creek bed could not be given due to the storage made in the upper part of the project, and that this issue was not included in the expert report. In addition, the applicant stated that the tendered pond was not mentioned in the EIA report and that these issues were not taken into account by the court of cassation and that an incomplete trial was held.
Tue to the administrative sanctions decisions imposed due to the fact that water is left below the amount of environmental flow committed in relation to the project, as well as the findings in the internal correspondence of the administrations that the amount of water committed is not released, indicate that an adequate and careful examination was not carried out in the process of making an EIA positive decision in a concrete case and conducting a trial on it. Although the applicant had a basic objection that the downstream water rights would be interrupted and that the water promised to be released to the creek bed would not be given due to the pond planned to be established, no evaluation was made in these matters by the courts of instance.
From the point of view of the concrete application, it was Dec that the main claims of the applicant are important for determining whether the public authorities have established a fair balance between the interests of the applicant and the public. Despite this, the applicant’s claims in question were not considered by the courts of cassation.
As a result, it was evaluated that the public authorities did not approach the incident with due care, did not properly evaluate the public and individual interests at stake in the incident, and did not fulfill the positive obligations of the public authorities in the context of the right to respect for private life.
The Constitutional Court has decided that the right to respect for private life has been violated on the grounds described.
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