In 2021, the Regulatory Institute for Renewable Energy and the Environment (RERI) initiated a lawsuit against the Electric Power Company of Serbia (EPS) due to excessive air pollution. Chronologically speaking, the lawsuit was preceded by RERI's request to the Ministry of Environmental Protection to conduct an extraordinary inspection. Senior legal advisor Hristina Vojvodić speaks for "Vreme" about the lawsuit itself, the institutional response, as well as the epilogue of the entire case.
"WEATHER" Why did you decide to file a lawsuit??
HRISTINA VOJVODIC: Simply put, we had no other legal means available to protect human health from excessive pollution. Although court proceedings attract the most attention in the public eye, our goal is to prevent court proceedings from happening at all. We view court proceedings as the last, necessary step when no previous attempt has provided the desired results. In this particular case, all preventive protection mechanisms failed. The inspection bodies have consistently ignored our requests to initiate extraordinary inspections, claiming that they do not have the authority to order the Electric Power Company of Serbia to comply with the emissions from the National Emission Reduction Plan (NERP), as well as that they do not have the ability to sanction anyone who does otherwise. to NERP. Unfortunately, the inspectorate's refusal to comply with regulations and protect human health and the environment is nothing new. The inspection represents the weakest link in procedures related to environmental protection.
By applying NERP, the operator gets some flexibility in terms of how to manage its thermal energy capacities during the year. However, already in the first year, EPS emitted six times more sulfur dioxide than is allowed by NERP, and the excesses continued during 2019, which is why we filed a lawsuit with the High Court in Belgrade demanding that EPS be ordered to significantly reduce emissions from its thermal energy capacities.
What kind of pollution are we talking about anyway??
We are talking about excessive emissions of sulfur dioxide, a harmful gas that has been scientifically proven to have a negative effect on human health and the environment. It is important for citizens to know that when we talk about excessive emissions, we mean emissions that are as much as six times higher than permitted. Such multiple emissions lead to various consequences for health, with the most serious arising from excessive and long-term exposure to sulfur dioxide. This leads to a significant increase in mortality from respiratory and cardiovascular diseases, as stated by Dr. Dragana Jovanović in her expert opinion, which we attached to the lawsuit. Based on the expert opinion of Dr. Jovanović, the court established key facts that indicate a danger to the health of the citizens of Serbia.
Serbia and EPS could not be surprised by the fact that from January 1, 2018, old large thermal power plants have the obligation to significantly reduce emissions, bearing in mind that since 2013 they were familiar with the modalities and the obligation to apply the Directive on large combustion plants. However, at the time of NERP implementation, EPS does not have any functional plant to reduce sulfur dioxide emissions. It is not there even today, seven years after the start of the implementation of the plan.
Did EPS reduce harmful emissions during the court process?
Thermal power plants owned by EPS have repeatedly exceeded the maximum allowed values of annual sulfur dioxide emissions every year since the beginning of NERP application. Instead of significantly reducing sulfur dioxide emissions in 2020, EPS emitted 30.000 tons of sulfur dioxide more than in 2019. During 2021, a certain decrease in sulfur dioxide emissions is observed, but it cannot be attributed to EPS activities aimed at reducing emissions, but to EPS emergency events. Nevertheless, the said reduction means that EPS emits "only" four and a half times more emissions than allowed, or 249.868 tons of sulfur dioxide per year. After that, EPS increased emissions from thermal power plants every year, and in 2023 it emits 296.025 tons of sulfur dioxide per year, which is five and a half times more than allowed.
The High Court ruled in favor of RERI-ja. Is the verdict final?? Did EPS appeal at all??
The verdict became final in May 2023, in a way that none of us expected. Namely, EPS filed an appeal against the judgment after the expiration of the legal deadline for its submission, which is why the court had no other option but to reject it as untimely. After RERI indicated to the court that the appeal should be rejected, EPS submits a proposal for a return to the previous state, which the High Court in Belgrade rejects, finding that there are no adequate reasons why EPS could not file an appeal within the deadline. The aforementioned decision of the High Court was confirmed by the Court of Appeal.
What are the key findings from the judgment?
The procedure conducted by RERI against EPS should not be seen as an individual successful case of using legal mechanisms for environmental protection, but as a strategic litigation. Strategic litigation is not intended as an end in itself, but rather as a means to change regulations and practices by establishing important legal precedent and addressing issues that have been neglected until now. The judgment has specific features that make it extremely important for judicial practice, not only in Serbia but also in the entire region, where there are also not many such court proceedings. In areas without established jurisprudence, each new judgment sets legal standards for the interpretation of certain legal institutes, which represent further guidance for other civil society organizations or individuals who would use this same legal mechanism to protect their rights. If I had to single out three key findings, they would be: the interpretation of the legal standard of risk of damage, the explanation of the active legitimization of civil society organizations, as well as the application of the principles of prevention and precaution in procedures in which there is a risk to human health and the environment.
Observed from a certain time distance, what was the response of the competent institutions during the whole process?
The preparation and analysis of the documentation, obtaining the evidence needed to initiate the procedure, as well as the court procedure itself, lasted a little less than five years. When we filed the lawsuit in 2021, the most important thing for us was to explain to the court the consequences of sulfur dioxide emissions and prove the cause-and-effect relationship between EPS activities and endangering people's health. That is why we immediately attached an expert opinion on the effects of sulfur dioxide on human health to the lawsuit, and not at a later stage of the procedure. It turned out to be a good decision, given that the judgment is largely based on the findings of Dr. Jovanović's expert opinion. It is important to note that the High Court in Belgrade in its judgment interpreted the law in some segments even more progressive than certain international courts. The court took into account the standards from the judgments of the European Court of Human Rights, and referred to the provisions that guarantee the right to life, as well as the right to respect for private and family life.
To what extent were harmful emissions reduced after the verdict, that is, whether they were reduced at all?
After the ruling, EPS emissions increased by about 30.000 tons per year. However, the most worrying fact is that emissions in 2023 are on the rise even in Kostolac B, which is the only one that has a desulphurization plant for now, or at least a usage permit considering that it is not known whether the company is actually using it. To this day, it is not clear whether the increase in emissions in Kostolac B is a consequence of the fact that it is unprofitable for EPS to use the facility, that gypsum disposal and wastewater treatment have not been permanently resolved, or whether it is some other technical-technological problem that requires a solution. Also, it should be borne in mind that from 2024 the annual emission limits will be tightened by about 10.000 tons.
What are your next steps if EPS defaults?
Unfortunately, EPS did not voluntarily comply with the High Court's ruling, which is why RERI will use all available legal means to implement this decision, in the interest of all citizens of the Republic of Serbia. Since the judgment is final and enforceable, RERI has the right to initiate enforcement proceedings against EPS if EPS does not voluntarily fulfill its obligation. In this particular case, the obligation of EPS refers to inaction, that is, to refraining from emitting sulfur dioxide above the limits prescribed by the NERP. In this sense, the submission of a proposal for enforcement would be preceded by the submission of a proposal for the imposition of court penalties. It is a means of pressure that would encourage the EPS to act according to the verdict, whereby the amount of court penalties is determined for each individual case.
