On the recognition of illegal and cancellation of the conclusion on determining the scope of environmental impact assessment and (or) screening of the impact of the planned activity of environmental impact permits for facilities
No. 6001-24-00-6ap/2148 dated June 10, 2025
Plaintiff: NGO "E" (hereinafter referred to as NGO)
Respondent: Russian State Institution "Department of Ecology of the Committee for Environmental Regulation and Control of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition as illegal and cancellation of the conclusion on determining the scope of environmental impact assessment and (or) screening of the impact of the planned activity dated January 6, 2023, environmental impact permits for category I facilities dated June 26, 2023,
Review of the defendant's cassation complaint PLOT:
By the ruling of the court of first instance, the claim regarding the claims for recognition as illegal and cancellation:
conclusions of the state environmental assessment on the draft (adjustment) of waste disposal standards of JSC "A" for the period 2021-2030 and an environmental permit dated October 28, 2021;
the conclusions of the state environmental assessment on the NRO project dated 2017 and the emission permit dated September 15, 2017;
public hearings and protocol dated May 30, 2023 on the facility
"Construction of sludge storage unit 8.2 JSC "A" was returned due to the refusal to restore the missed deadline for filing a claim.
By the decision of the court of first instance of December 11, 2023, the claim for recognition as illegal and cancellation of the conclusion on determining the scope of environmental impact assessment and (or) screening of the impact of the planned activity of January 6, 2023, the environmental impact permit for category I facilities of June 26, 2023 was refused.
By the decision of the appeal dated May 23, 2024, the decision of the court of first instance remained unchanged.
In the cassation appeal, the plaintiff's representative, disagreeing with the adopted judicial acts, pointing to the incorrect application by the courts of the norms of substantive and procedural law, asks to cancel them and make a new decision on the satisfaction of the claim.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts of local courts are upheld.
Conclusions: the courts found that on January 6, 2023, the Department, based on a statement about the planned activities of JSC "A" (hereinafter referred to as the Plant), issued an opinion on determining the scope of coverage
environmental impact assessment and/or screening of the impact of the planned activity No. KZ41VWF00085556 (hereinafter referred to as the Conclusion).
In accordance with Section 1 of Appendix 2 to the Environmental Code of the Republic of Kazakhstan (hereinafter - EC), the Plant is classified as a Category I facility as an industrial production of organic chemicals.
On June 2023, the Department issued an environmental impact permit for Category I facilities (hereinafter referred to as the Environmental Permit).
The NGO filed a lawsuit in which it requested that the above-mentioned Opinion and Environmental Permit be declared illegal and revoked.
The local courts, resolving the dispute on the merits and rejecting the claim, were guided by the provisions of the EC, and concluded that the contested Opinion and Environmental Permit were issued in compliance with the requirements of environmental legislation, without violations by the Department.
The courts have reliably established that the construction of a new sludge storage facility is provided for within the framework of a project for which an environmental impact assessment (EIA) and a state environmental assessment (SEE) have already been conducted, the previously conducted EIA covered the specified project (object), the project documentation corresponds to the conclusion of the EIA and at the time of issuing the permit, the validity period of the EIA has not expired.
Cases of mandatory environmental impact assessment are listed in article 65 of the EC.
The purpose and parameters of the project have not changed, but only the implementation period has been adjusted, which does not entail the obligation to re-pass the EIA.
The type of activity (construction of a sludge storage facility) in the Plant's application is reasonably indicated as a "tailings storage facility" (subparagraph 6.6) of paragraph 6 of Section 2 of Annex 1 to the EC), which corresponds to the regulatory definition given in the Rules for Ensuring Industrial Safety for Tailings and Sludge Farms of Hazardous Production Facilities, approved by Order of the Minister of Investment and Development of the Republic of Kazakhstan No. 349 dated December 30, 2014.
The application for the planned activity was submitted in accordance with the established procedure - in electronic format through a Single Environmental portal, in compliance with the form and content. The application review procedure was followed: the application was posted on the website: ecoportal.kz , an opportunity was given to submit comments, but no objections were received from the plaintiff (Article 68 of the EC). The type of activity is correctly designated as a "tailings storage facility", which includes a sludge storage facility.
Paragraph 65 of the EC establishes that, for the purposes of environmental impact assessment or screening of the impacts of planned activities, significant changes in activities are understood to mean any changes resulting from:
the volume or capacity of production increases;
the amount and (or) the type of natural resources, fuels and (or) raw materials used in the activity is increasing;
the area of the violated lands is increasing or the lands that were not previously taken into account during the environmental impact assessment or screening of the impacts of the planned activity are subject to violation.;
Otherwise, the technology and management of the production process are changing, as a result of which the quantitative and qualitative indicators of emissions may deteriorate, the area of impact of such emissions may change and (or) the amount of waste generated may increase.
Taking into account the existence of the administrative discretion of the authorized bodies in the field of environmental protection, the court in the framework of this dispute does not have the right to conduct a study of the project documentation and evaluate it in order to establish the existence of a set of facts falling under the concept of "significant changes", since such actions go beyond its competence and would mean an unacceptable substitution of the functions of a specialized state body.
In this regard, the petitions of the plaintiff to identify the actual balances in the warehouses were reasonably rejected, since these actions are not included in the subject of the administrative case under consideration and do not relate to the powers of the court.
Consequently, the court has no right to assess the occurrence of grounds for conducting a new environmental impact assessment, since this falls within the exclusive competence of the authorized body within the framework of another administrative procedure.
Paragraph 2 of Article 418 of the EC stipulates that positive conclusions of the state environmental assessment or a comprehensive non-departmental examination issued before July 1, 2021, remain valid during their validity period. For projects of planned activities for which there are valid positive conclusions of the state environmental assessment or comprehensive non-departmental expertise issued before July 1, 2021, an environmental impact assessment or screening of the impacts of the planned activities in accordance with the provisions of the EC is not required.
The stated norms mean that the existence of a valid positive environmental assessment report from 2020, issued before July 1, 2021, allowed, in accordance with paragraph 2 of Article 418 of the EC, not to re-conduct the EIA.
If the certificate is issued before July 1, 2021, it remains valid for the entire period of validity established earlier (as before, the validity period of the certificate was up to 10 years). That is, in fact, the postponement of the project does not require repeated EIA.
Thus, the issuance of the Opinion dated January 6, 2023 by the Department was carried out within the limits of the powers granted, in accordance with the requirements of the EC and the regulations for the provision of public services, since at the time of its issuance there was a positive GEE opinion received by the Plant before July 1, 2021.
Accordingly, given that the defendant's contested Opinion of January 6, 2023 was issued reasonably, the current environmental assessment opinion of 2020 remained in force (by virtue of part 2 of Article 418), a repeat EIA was not required.
The environmental permit dated June 26, 2023 was issued in compliance with the requirements of Articles 106 and 122 of the EC on the basis of a complete package of documentation. The State environmental assessment was carried out as part of the permit procedure (Article 87 of the EC).
The plaintiff's arguments about underestimating the volume of waste and concealing the impact have not been confirmed, the calculations of the Plant are based on technological regulations and expert data. Waste classification and established limits comply with regulations and are based on licensed opinions.
As part of the consideration of this administrative case concerning the legality of issuing an opinion on determining the scope of the EIA, as well as an environmental permit, the opinion of a member of the Scientific Advisory Council at the Supreme Court of the Republic of Kazakhstan was requested in order to develop a legal position based on the provisions of the EC and the principles of sustainable environmental regulation. The key aspects of the report are consistent with the opinion of the judicial board and correlate with the materials and circumstances of the case.
In the context of the above, the judicial board agreed with the conclusions of the local courts on the dismissal of the claim, as they correspond to the factual circumstances of the administrative case, the contested judicial acts were adopted taking into account the principles of legality and validity. At the same time, the contested administrative acts are necessary, appropriate and proportionate.
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