On the recognition of illegal actions to revoke an environmental permit

No. 6001-24-00-6ap/2422 dated April 01, 2025

Plaintiff: LLP "G" (hereinafter referred to as the Partnership)

Respondent: Russian State Institution "Department of Ecology of the Committee for Environmental Regulation and Control of the Ministry of Ecology and Natural Resources of the Republic of Kazakhstan" (hereinafter referred to as the Department)

The subject of the dispute: on the recognition of illegal actions to revoke an environmental permit

Review of the plaintiff's cassation complaint PLOT:

Facility "K" (hereinafter referred to as the Facility) has been owned by JSC "I" since April 18, 2019, for which the last environmental emission permit was issued on September 17, 2019, valid for the period 2019-2028 (hereinafter referred to as the permit).

Based on the purchase and sale agreement dated December 29, 2020, the Facility was transferred to the ownership of the Partnership.

Based on the request of JSC "I" dated February 1, 2022, the Department cancelled the permit on February 2, 2022.

Disagreeing with the actions of the Department, the plaintiff filed a lawsuit in court, arguing that the cancellation of the permit was carried out without the consent of the owner of the Facility. By virtue of the provisions of Article 109 of the Environmental Code (hereinafter referred to as the EC), a written statement from the Partnership as the operator of the Facility was required to revoke the permit. As a result of the defendant's illegal actions, the strategic facility was left without a permit in the period from February 2 to December 27, 2022, which could lead to the suspension of its activities and violation of the obligations of the Republic of Kazakhstan under the Agreement between the Government of the Republic of Kazakhstan and the People's Republic of China on Cooperation in the Construction and Operation of the Kazakhstan-China gas pipeline dated August 18, 2017. Also, the defendant's formal approach to the issue of revocation of the permit led to the impossibility of reissuing the permit, the need for the plaintiff to obtain a new environmental permit dated December 27, 2022, and the unjustified bringing of the Partnership to administrative responsibility.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: judicial acts in this case have been annulled, with a new decision on the satisfaction of the claim.

The actions of the Department to revoke the permit for emissions into the environment dated September 17, 2019, were recognized as illegal.

Conclusions: in accordance with paragraph 2 of Article 109 of the EC, the authority that issued the environmental permit cancels the environmental permit from the date of receipt of the relevant written request from the operator of the facility or from the date of entry into force of the new environmental permit.

According to paragraph 6 of Article 12 of the EC and subparagraph 6) of paragraph 2 of the Instruction on determining the category of an object having a negative impact on the Environment, approved by the order of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated July 13, 2021, the operator of an object is understood to be an individual or legal entity that owns or legally uses the object, having a negative impact on the environment.

From the literal interpretation of the above-mentioned norms, it follows that the right to file a petition for revocation of an environmental permit belongs to a legal entity that has ownership (legal use) of the facility.

By virtue of the provisions of Article 107 of the EC, in the event of a change of the operator of an object as a result of alienation of the object or its transfer to another legal use to another person, reorganization of the operator of the object by separation, division or accession, or in other cases of universal succession, the previously issued environmental permit or the submitted environmental impact declaration remains in force and becomes mandatory (mandatory) for the new object operator.

Thus, after the alienation of the facility, the previous owner loses the status of the operator of the facility and, as a result, the right to file a petition for the cancellation of a previously issued environmental permit. This right is transferred to the new owner, who is the operator of the facility.

The specified approach of the legislator is aimed at ensuring the responsibility of the new operator of the facility to comply with the terms of the previously issued permit, maintaining the continuity of environmental control over emissions, eliminating legal uncertainty and administrative disputes between the former and the new operator.

It can be seen from the case file that at the time of filing the application for cancellation of the environmental permit on February 1, 2022, JSC I was not the owner of the Facility due to its alienation to the plaintiff on the basis of a purchase and sale agreement dated December 29, 2020.

Since the registration of the specified agreement on May 13, 2021, the new owner - operator of the Facility is a Partnership.

Consequently, the cancellation of the environmental permit was carried out by the Department at the request of a person who does not have the right to file such a request. The status of the applicant was not verified by the defendant, and supporting documents were not requested, which led to the unlawful cancellation of the current environmental permit for the Facility.

The Board considered the arguments of the representatives of JSC "I" that the cancellation of the permit by the Company was made in order to exempt them from environmental emissions fees to be erroneous, since according to paragraph 1 of Article 574 of the Tax Code of the Republic of Kazakhstan, the payers of environmental emissions fees are the operators of facilities. Accordingly, after the transfer of ownership of the facility, the obligations to pay the emission fee are transferred to the plaintiff as the new owner - operator of the facility.

The defendant's arguments about the plaintiff's violation of the deadline for the renewal of the environmental permit, established by paragraph 2 of Article 107 of the EC, cannot be taken into account, since failure to fulfill this obligation or violation of this deadline does not entail the cancellation of the environmental permit. The EC does not contain such provisions.

Paragraph 8 of Article 418 of the EC states that permits for emissions into the environment, emission standards received before July 1, 2021 by operators operating at facilities classified as Category I or II facilities from July 1, 2021, are valid until the expiration of such permits and documents or until the date of receipt environmental permits in accordance with this Code.

This provision was adopted as transitional provisions in order to eliminate the need to obtain new environmental permits in connection with the entry into force of the Environmental Code on July 1, 2021, which confirms the plaintiff's arguments that the previously issued environmental permit dated September 17, 2019 has not lost its validity. Based on the above, the decision and resolution appealed by the plaintiff were annulled with the issuance of a new decision on the satisfaction of the claim, the cassation appeal was satisfied.

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