– They are closed cases (to avoid causing any speculation);
– They contribute to the struggle of NGOs, locals and activists and can help them
build a better law case by setting an example;
– They are filed after 2005 (with some exceptions, such as the Bergama mining
case, which is a milestone in environmental law struggles in Turkey) by
observing legislation changes;
– They include as many principles, legislation and comments as possible.
After digging into these judicial decisions, some conclusions could be drawn as
follows:
• Circumventing the Law
There are many situations in which related administrative offices or corporations
try to circumvent the law. One of these practices in environmentally destructive
projects is to divide the project area into pieces so its size is below the numbers
stated in the Environmental Impact Assessment Directive, meaning there is no
need to have an Environmental Impact Assessment Report (EIAR) for the
project. However, there are some good decisions which set examples for taking
a holistic view, such as Council of State Judicial Chamber 6, docket no. 2009/
15183; Council of State Judicial Chamber 6, docket no. 2010/3901; and Council
of State Judicial Chamber 10, docket no. 2001/598. In these decisions, mining
and hydroelectric power plant construction sites are evaluated as a whole with
their main construction areas, end products, and connections to the electric grid.
Therefore, these areas would be subjected to EIARs as they become huge
projects when all these elements are included.
• Protection of the environment as Superior Public Interest
In investment projects, while economic interests are highly prioritized (as
expected), in general, environmental or social interests are ignored. In this
regard, it is important to highlight decisions which are of superior public interest
not on solely economic grounds but under the Constitutional principles and
which prioritize a healthy environment. In this sense, in the decision of Council
of State Judicial Chamber 6, docket no. 2010/2375, the principle of the social
state governed by the rule of law, which exists in the Constitution (Article 2),
was emphasized. The court’s assessment is based on protecting the environment
as the superior public interest because the State must provide a healthy environment for its citizens without favouring economic interests, according to the
principle of the social state governed by the rule of law.
To illustrate, Constitutional Court, docket no. 2007/105 and Council of State
Administrative Judicial Chamber, docket no. 2009/722 could be shown as the
crucial ones for referencing and commenting on the constitutional principles in a
broad and holistic approach, and the protection of the environment was assessed
as the public interest in these decisions.
• International Agreements
International agreements are very important for establishing an international
regime with similar values. Turkey has ratified lots of international agreements
120
E. Türker Alpay
– They contribute to the struggle of NGOs, locals and activists and can help them
build a better law case by setting an example;
– They are filed after 2005 (with some exceptions, such as the Bergama mining
case, which is a milestone in environmental law struggles in Turkey) by
observing legislation changes;
– They include as many principles, legislation and comments as possible.
After digging into these judicial decisions, some conclusions could be drawn as
follows:
• Circumventing the Law
There are many situations in which related administrative offices or corporations
try to circumvent the law. One of these practices in environmentally destructive
projects is to divide the project area into pieces so its size is below the numbers
stated in the Environmental Impact Assessment Directive, meaning there is no
need to have an Environmental Impact Assessment Report (EIAR) for the
project. However, there are some good decisions which set examples for taking
a holistic view, such as Council of State Judicial Chamber 6, docket no. 2009/
15183; Council of State Judicial Chamber 6, docket no. 2010/3901; and Council
of State Judicial Chamber 10, docket no. 2001/598. In these decisions, mining
and hydroelectric power plant construction sites are evaluated as a whole with
their main construction areas, end products, and connections to the electric grid.
Therefore, these areas would be subjected to EIARs as they become huge
projects when all these elements are included.
• Protection of the environment as Superior Public Interest
In investment projects, while economic interests are highly prioritized (as
expected), in general, environmental or social interests are ignored. In this
regard, it is important to highlight decisions which are of superior public interest
not on solely economic grounds but under the Constitutional principles and
which prioritize a healthy environment. In this sense, in the decision of Council
of State Judicial Chamber 6, docket no. 2010/2375, the principle of the social
state governed by the rule of law, which exists in the Constitution (Article 2),
was emphasized. The court’s assessment is based on protecting the environment
as the superior public interest because the State must provide a healthy environment for its citizens without favouring economic interests, according to the
principle of the social state governed by the rule of law.
To illustrate, Constitutional Court, docket no. 2007/105 and Council of State
Administrative Judicial Chamber, docket no. 2009/722 could be shown as the
crucial ones for referencing and commenting on the constitutional principles in a
broad and holistic approach, and the protection of the environment was assessed
as the public interest in these decisions.
• International Agreements
International agreements are very important for establishing an international
regime with similar values. Turkey has ratified lots of international agreements
120
E. Türker Alpay