Insights | February 14, 2018

Leave to appeal is now required in more environmental permit cases

The Finnish Parliament has enacted into law a government bill (HE 43/2017) expanding the need for leave to appeal from the Supreme Administrative Court when appealing a ruling by the administrative court in environmental cases involving permits or zoning decisions. Without leave to appeal, the Supreme Administrative Court will not hear the case. The new rules took effect on 1 January 2018 and apply to rulings issued from that date onwards. Thus, application of the new rules does not depend on the date of the original decision by the environmental authorities or the date the decision was appealed to the administrative court.

Which matters are concerned?

Most matters under the Environmental Protection Act (527/2017), Land Use and Building Act (132/1999), Land Extraction Act (555/1981), Nature Conservation Act (1096/1996) and Water Act (587/2011) are covered by the new rules. Decisions given under these acts include environmental permits, water permits, building permits, land extraction permits and zoning decisions. Previously, leave to appeal in such cases was required only under the Nature Conservation Act and, in a limited number of matters, under the Land Use and Building Act. As such, the amendment makes only minor changes to the scope of matters that require leave to appeal under the Nature Conservation Act, as this process was already widely used in those matters.

What are the grounds for granting leave to appeal?

Environmental legislation does not provide separate grounds for granting leave to appeal. Instead, the general grounds in the Administrative Judicial Procedure Act (586/1996) apply. Pursuant to article 13 of the Act, leave to appeal can be granted if:

1. application of the act in other similar cases or the uniformity of case law requires a decision of the Supreme Administrative Court;
2. there is an obvious error in the matter; or
3. there is some other important reason for granting leave to appeal.

In practice, the most important and most widely used reason is the need for a Supreme Administrative Court precedent. The general grounds in the Administrative Judicial Procedure Act were discussed in the preparatory works of the newly enacted legislation. According to the preparatory works, a decision by the Supreme Administrative Court may be necessary, for example, concerning the interpretation of conclusions on the best available techniques (BAT conclusions), which apply in environmental permit processes and are based on EU legislation, or in matters were the administrative court has inserted a new permit condition in its ruling and the fulfillment of the new condition raises serious technical or financial problems.

In short: What does this mean in practice?

Mainly, these changes require applicants to think ahead, strategically. First, in the permit application process with the authorities applicants should remember that if things go wrong, there may only be one opportunity to appeal to make it right. Second, litigating in the administrative court becomes more important, because in the end this may be the only judicial body that reviews the case. Third, if the administrative court’s ruling is unsatisfactory, one should frame the case carefully when applying for leave to appeal. The Supreme Administrative Court must be convinced to take the case, and one party being unhappy with the administrative court ruling is not enough. In particular if the argument for leave to appeal is that a Supreme Administrative Court precedent is needed, the court must be convinced of why the case is legally compelling and why a ruling by the Supreme Administrative Court is also critical.