Case: Mykolaiv Mineral Fertilizer Terminal
Mykolaiv oblast association “Zelenyi Svit” and shipyard “Okean” versus the company “Nika-Tera”
Region: Mykolaiv oblast, city of Mykolaiv

Essence of case: Protection of the citizens right to participation in the environmentally important decisions

Parties: Mykolaiv oblast association “Zelenyi Svit” and shipyard “Okean”- plaintiffs
company “Nika-Tera” – defendant

Essence of problem: Satisfaction in the court of the claim to declare invalid the environmental impact assessment statement

Main facts:

In 1995 the project, a chemical fertilizer terminal in Mykolaiv, financed by an Irish-Russian-Ukrainian joint venture was started. On the day the joint venture registered to do business, it donated 20 trams and 20 trolley buses to the city. Local authorities subsequently approved the project, and construction began in August 1995 in violation of environmental laws requiring that an "environmental expertise" be conducted prior to project approval.
The local Ministry of Environmental Protection and Nuclear Safety (EcoSafety) temporary stopped the construction and ordered the company to conduct an environmental expertise of the project.
The company then submitted the project to the local Ministry office for environmental expertise. However, the company did not publish an environmental impact assessment statement, in violation of the Law on Environmental Expertise. Local ministry officials subsequently rejected the project on grounds that it had unacceptable negative environmental impacts. However, the company then requested the national EcoSafety office in Kyiv to review the local EcoSafety office's environmental expertise, and officials in Kyiv reached a positive conclusion in their own environmental expertise, overturning the local ministry office's rejection of the project.
EPL sued the national EcoSafety office in the High Arbitration Court, claiming that the environmental expertise it conducted was deficient on procedural grounds. The court dismissed the case three times on procedural grounds before EPL was granted a hearing on the substance of its claims.
EPL represented two clients in the action filed in the High Arbitration Court: Zelenyi Svit (Green World), an environmental non-governmental organization; and a shipbuilding company that claimed that the health of its workers would be adversely affected by the terminal. More than 10,000 local citizens also signed a petition opposing the project. By the conclusion of the case, this number had increased to 100,000. including members of representative bodies such as local co-operatives and labor unions.
In its lawsuit, EPL claimed that the ministry's expertise was invalid primarily on the following grounds. The Ministry failed to require the company to publish the environmental impact assessment statement prior to commencement of the environmental expertise, thereby depriving the public of the opportunity to participate meaningfully in the process. Moreover, the construction of the project began before the ministry completed its expertise. This is strictly prohibited under the Law on Environmental Expertise. This premature construction complicated matters because significant funds had been invested in the project by the time the case reached the courts, making it more difficult for a judge to invalidate the expertise and order that work on the project cease. The ministry failed to publish the conclusion of the environmental expertise as well as to take public opinion into account as required under the Law on Environmental Expertise. In the face of 100.000 citizens

voicing opposition to the project and public expertise that found the project to be unsuitable, the ministry still approved the project. The expertise conclusion did not identify the experts who participated in the expertise, thereby depriving citizens of the ability to challenge their qualifications, in violation of the Expertise Law. The ministry failed to consider adequately the negative environmental impacts associated with the project, including, but not limited to, possible impacts on endangered species, the surrounding estuary, and pre-existing elevated contaminant levels in the South Bug River.
Judge G. ruled in favor of EPL and ordered the ministry to require the company to cease work on the project. The court exercised its authority under the Law on Environmental Expertise to find the conclusions of the expertise invalid when procedural requirements are violated. The court found that the environmental impact assessment statement was published two months after the expertise was completed, in violation of the public's right to be informed and to participate in the expertise process.
The ministry argued that its failure to publish the EIA statement had not affected the outcome of the expertise because the public had known about the project. The court rejected this argument outright because the Expertise Law does not provide for substitution of the notice requirement. Without notice of the expertise, the court observed, the public could not fully take part in the process.
The case has not been finalized yet. The Ministry appealed and the court decision was canceled. But even the first stage victory offers hope for citizens that their environmental rights can be upheld.