Administrative case No. I-757-422/2012 Judicial proceedings No. 3-62-3-00115-2011-5 Category of procedural decision: 2.3.1; 2.6; 2.7; 74. (S) KAUNAS REGIONAL ADMINISTRATIVE COURT J U D G E M E N T ON BEHALF OF THE REPUBLIC OF LITHUANIA 5 July 2012 Kaunas the Panel of Judges of the Kaunas Regional Administrative Court consisting of Judges Janina Vitunskienė (Chairman and Rapporteur), Daina Kukalienė and Jolanta Medvedevienė, Secretary Anželika Kuicaitė, in the presence of the representatives of the Claimant, the association Rudaminos Bendruomenė, namely, Chair R. C., R. V. and Attorney-at-Law Ramunė Dulevičienė, the representative of the Defendant, the Alytus Regional Environmental Protection Department, Dalė Amšiejienė, the representative of the third parties concerned UAB SWECO Lietuva and UAB SWECO International A. V., the representatives of the third party concerned Litgrid AB, namely, R.Č., Attorney-at-Law Nijolė Vaičiūnaitė and Attorney-at- Law Vitoldas Kumpa, the representatives of the third party concerned LitPol Link Sp. Z. o. o., namely, Attorney-at-Law Nijolė Vaičiūnaitė and J. N., the representative of the third party concerned, the Lazdijai District Municipality Administration Kęstutis Jasiulevičius, and the representatives of the third party concerned, the Alytus Territorial Division of the Department of Cultural Heritage under the Ministry of Culture, Alius Baranauskas and Dalia Lungevičienė, in the absence of the representatives of the following third parties concerned: the Marijampolė Municipality Administration, the Kalvarija Municipality Administration, the Alytus District Municipality Administration, the Alytus Public Health Centre, the Ministry of Energy of the Republic of Lithuania, the State Service for Protected Areas under the Ministry of Environment, the Alytus County Fire and Rescue Board and the Environmental Protection Agency, having heard at a public hearing the administrative case under the complaint filed by the Claimant, the association Rudaminos Bendruomenė against the Defendant, the Alytus Regional Environmental Department under the Ministry of Environment of the Republic of Lithuania, the third parties concerned, namely, Litgrid AB, UAB Sweco Lietuva, AB Sweco International, LitPol Link Sp. z.o.o., the Alytus District Municipality Administration, the Lazdijai District Municipality Administration, the Marijampolė Municipality Administration, the Kalvarija Municipality Administration, the Alytus Public Health Centre, the State Service for Protected Areas under the Ministry of Environment of the Republic of Lithuania, the Alytus Territorial Division of the Cultural Heritage Department under the Ministry of Culture of the Republic of Lithuania, the Alytus County Fire and Rescue Board, the Environmental Protection Agency and the Ministry of Energy of the Republic of Lithuania regarding the cancellation of part of the decision, has a s c e r t a i n e d: the Claimant, the association Rudaminos Bendruomenė, applied to the Kaunas Regional Administrative Court with a request to annul the part of Decision No. ARV2-5-1810 of 30 December 2010 of the Alytus Regional Environmental Protection Department regarding the construction and operation of a 400 kV overhead power transmission line between the Žuvintas Biosphere Reserve and the Lithuanian–Polish border beside the lake Galadusys (part of Subalternative B1) (hereinafter referred to as the “Contested Decision”). In its application (case file p. 5–6), the Claimant indicated that it disagrees with the part of the Decision which allows designing the construction and operation of a 400 kV overhead power transmission line (hereinafter – the “EEPOL” or the “Line”) in the B1 section of the subalternative specified in the Decision and on the website of the company LitPol Link (www.litpol.lt), which provides for the construction and operation of the EEPOL between the Žuvintas Biosphere Reserve and the Lithuanian– Polish border beside the lake Galadusys. The Claimant indicated that it is the public concerned, the stakeholder in the EIA process, whose participation in the EIA process is guaranteed by both national and international legislation. The route for the design of the planned EEPOL chosen under Subalternative B1 passes the territory of Rudamina, Karužai, Skaistučiai and Neravai villages where the members of the association Rudaminos Bendruomenė reside and/or have their properties. According to the Claimant, the Defendant unreasonably failed to consider the Line alternative proposed by it. In the given case, the most appropriate method of construction of a power transmission line is a direct-current underground cable by combining it with the existing infrastructures, without uglifying the landscape and other components of the environment. The application of the underground line building technology is more appropriate not only from a technological point of view but first of all in ecological, recreational, cultural heritage-related and all other respects, particularly, in the aspect of landscape protection. By failing to take into account the proposal of the public and permitting by the Decision to build the Line in the picturesque area of the Lazdijai district, the principle of rational infrastructure layout was totally ignored. In the Claimant’s opinion, under its proposed alternative the route in the section Alytus-Šeštokai could be totally aligned with the existing 110 kV EEPOL and in the section from the Šeštokai eldership to the electrical substation located in the village of Oleandrai it would further run along the railway line, through the Šeštokai- Mockava industrial area, which is already provided in the Master Plan of the Lazdijai District Municipality, and through the infrastructure corridor to the Republic of Poland planned in the solutions set out in the Master Plan of the Kalvarija Municipality (hereinafter also referred to as the “MP”) (2007). The proposed route would run through the areas intended for the construction of utility engineering networks and entities and development of engineering communications and the territory of the Lazdijai District Municipality would not be uglified by another construction works of a cumbersome height and width emitting pollutants into the surrounding environment. Besides, this alternative would allow shortening the Lithuanian-Polish power link Alytus-Elk by approx. 8 km, and this means that under the forecasted prices per km it would help Lithuania save at least EUR 3.2 million. It was indicated that the Aarhus Convention was violated because it as the public concerned was not properly informed about this project in the earliest stage of its development. During the entire EIA process, the public was not properly informed about the Strategic Environmental Assessment, the approval of the EIA programme, the EIA report or the adopted EIA Decision. The Claimant stated that the announcement published in the 16th issue of the newspaper Lazdijų Žvaigždė of 16 April 2012 referred to a 400 kW overhead power line rather than to a 400 kV overhead power line; therefore, the public concerned was misled and due to this misleading its rights to be informed about the EIA process at the earliest possible stage were violated. As the Claimant was not properly informed about the preparation of the project, the decision-making procedure was materially violated; therefore, the decision adopted by the Alytus REPD on 30 December 2010 has to be annulled. According to the Claimant, the Defendant did not make any efforts to coordinate the public information actions so that the public would be given a sufficient period of time to get familiarised with the drafted EIA material and to prepare for its proposals, objections and conclusions. All publicly announced documents were posted on the websites of the Sweco Lietuva, the drafter of the EIA documents, or LitPol Link Sp. z.o.o. The information and documents which were necessary to get familiarised with due to the complexity of the project were of a particularly large scope (over 100 pages) and special technical and engineering knowledge was required to analyse the information contained in these documents; therefore, the 10-day deadline set for getting familiarised with the documents was insufficient. It was indicated that the EIA procedure was violated as well, i.e. the EIA report had to be coordinated by the land management divisions of the Alytus and Lazdijai District Municipalities as the planned line will run through state-owned and privately-owned land plots, thus, the land plots will be taken for public needs, or administrative servitudes will be established. The Claimant assumes that the conclusion of the National Land Service as the assignee of the rights of the County Governor’s Administration was inevitable necessary for such project where privately-owned land will be taken for public needs, the purpose of use of land plots will be changed, state-owned forests will be cut, buffer zones and administrative servitudes will be established and other land-related issues will be resolved. Besides, the EIA report was not coordinated with the Lazdijai Fire and Rescue Service. The conclusions of the Alytus County Fire and Rescue Board Service were adduced in the case even though the Alytus Fire and Rescue Service was indicated in the EIA programme. Although the Line will run through the district of Lazdijai but the EIA report was approved without the conclusion of the Lazdijai Public Health Centre and without the approval of the Lazdijai District Municipality of the construction