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13 October 2014
One of the largest science infrastructure projects in Europe, the European Spallation Source (ESS), has been given the formal go-ahead to start construction on the outskirts of Lund, Sweden. The groundbreaking took place on September 2 2014 after permission from the Swedish Land and Environmental Court and the Swedish Radiation Safety Authority. This marked the start of the construction phase of the €1,843 billion project, funded by a coalition of European countries. The host countries, Sweden and Denmark, represent almost half of the funding.
Scientists will use the ESS (in effect, a giant microscope) for research through spallation, a process for producing neutrons by means of a particle accelerator and a heavy metal target. Protons derived from hydrogen gas are drawn through a linear accelerator to a velocity just below the speed of light, at which point they collide with the nuclei of the target metal. The collision scatters a collection of high-energy neutrons, which in turn are assembled into beams that are directed toward an array of scientific instruments. The more neutrons produced in the target collision, the brighter the neutron source is said to be. The neutron source of the ESS will be the world's brightest – significantly brighter than those of the existing world leaders in the field: Oak Ridge National Laboratory in Tennessee, United States and J-PARC in Japan. The scientific discoveries of the ESS are expected to benefit a broad range of research, from life sciences to engineering materials. Construction is set to be completed in late 2019. The first neutrons are expected the same year and experiments are planned to begin in 2023.
Being a unique project of mammoth scale, it is unsurprising that the environmental licensing of the ESS gave rise to a wide array of complex assessments. The question of ionising radiation – which will ensue from the spallation process (although in relatively low levels) – is particularly interesting from a legal viewpoint, since this field is governed by multiple overlapping regulatory frameworks.
Ionising radiation constitutes an environmentally hazardous activity under the Environmental Code. This means that ionising radiation is among the wide spectrum of issues evaluated by a regional Environmental Court in the licensing process, including:
Ionising radiation is also governed by the Radiation Protection Act, requiring permission from the national regulator, the Radiation Safety Authority. Finally, such activities fall under the scope of the Euratom Treaty, giving rise to obligations under EU law.
The licensing processes before the Environmental Court and the Radiation Safety Authority cover partly the same subject matter and are conducted in parallel. The basis for such parallel proceedings arose when the Environmental Code entered into force in the late 1990s. Previously, ionising radiation had been exempt from environmental legislation and was governed solely by the Radiation Protection Act. The risks of parallel licensing proceedings were acknowledged by the government when the Environmental Code was passed. However, the government confidently held that only a small number of cases would be concerned and potential conflicts between the involved authorities could be avoided by cooperation.
The ESS case shows that the authorities involved can cooperate within the scope of the double legislature and licensing proceedings. However, the case also manifests the difficulties of such cooperation. These difficulties lie mainly in the different objectives of the respective legislations and licensing proceedings. Whereas licensing under the Environmental Code aims at conventional environmental effects and constitutes a pre-assessment (ex ante) of the project to be licensed, licensing by the authority under the Radiation Protection Act provides for a step-by-step permit procedure followed by continuous supervision and possibilities to intervene in the operations after stepwise permits have been granted. Hence, it is unsurprising that the Environmental Court held the written statements submitted by the authority in respect of the court's proceedings to be somewhat unclear with respect to the permissibility of the ESS project under the Environmental Code. Nevertheless, the court elucidated the obscurities during the main hearings.
Another question relating to ionising radiation that prolonged the process before the Environmental Court was the mandatory involvement of the European Commission. According to the Euratom Treaty, member states must notify the commission in cases concerning radiation; and the commission is in turn obliged to render its opinion. Such a notice was submitted to the commission in September 2013. However, the commission had not provided an opinion when the case approached the main hearing. While awaiting the statement the court decided to stay the proceedings. The ESS appealed the decision and the Environmental Court of Appeal set the decision aside, considering that the information required by the commission was in such detail that it could not possibly be answered in the stage of pre-licensing under the Environment Code. Instead, the Court of Appeal held that the opinion would be of interest at a later stage of the proceedings and hence there was no need to wait for the opinion before granting permission to begin construction.
The licence issued by the Environmental Court covers the construction phase of the ESS project and contains conditions concerning, among other things, noise and chemical waste. Questions – including the setting of specific conditions concerning radioactivity and radioactive waste – will be considered during a customary trial period. Following the granting of a licence to begin construction under the Environmental Code, the authority issued its first permit, having made a comprehensive evaluation of the ESS project. Future stages – including installation, pilot operation and regular operation – will be subject to further licensing proceedings by the authority.
Swedish environmental licensing proceedings are frequently criticised for being time-consuming and sluggish. However, the ESS case shows that the licensing system, although not without its difficulties, is capable of handling highly complex projects in a fairly short time.
For further information on this topic please contact Mikael Wärnsby or Sofia Waadeland Grönesjö at Advokatfirman Lindahl KB by telephone (+46 40 664 66 50), fax (+46 40 664 66 55) or email (firstname.lastname@example.org or email@example.com). The Advokatfirman Lindahl KB website can be accessed at www.lindahl.se.
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Sofia Waadeland Grönesjö