area as well as outside the area would endanger sever-al protected species of animsever-als and plants. Further in-park development would destroy protected habitats of pine trees and dwarf pines.
• MOEW’s conditional acceptance of the Plan was in violation of EIA procedures that state if an EIA is incomplete, the report must be sent back to the sub-mitting party.
• In accordance with the Environmental Protection Act (EPA), MOEW’s decision at this stage of review should have been considered a “positive EIA decision” and not an “approval” of the Plan. MOEW’s acceptance of the Plan was premature.
The court dismissed the claim, given MOEW’s instruc-tions to amend the EIA, holding that a final decision had not been made and thus the NGOs’ lawsuit could not yet be reviewed on administrative appeal.
In February 2001, upon word that paragraphs 11, 12 and 13 were fulfilled and MOEW had approved the Plan, two of the NGOs, the Association for Wild Nature (AWN) and the Centre for Environmental Information and Education (CEIE), resubmitted their complaint before the Supreme Administrative Court.
In addition to the prior arguments, the two NGOs asserted that the approval process was invalid because the MOEW never submitted the amended version of the Plan and the EIA report to public discussion (article 23a of the EPA).
The NGOs requested that the court hear the testimony of independent experts who would address the amended Plan and EIA report, in particular whether they met MOEW’s conditions and whether the Plan would lead to the destruction of protected species and habitat.
On July 12, 2001, the court ruled in favour of MOEW.
In its decision, the court stated the following:
• While some plants, animals and habitat would be destroyed, the development would not lead to the destruction of an entire species nor impede the repro-duction of these species.
• Clear-cutting would occur but to a minimum extent.
• The court stated that the Plan did not contravene the park’s management plan, but rather replaced it (this is arguably a mistake of fact — the proposed Plan only refers to a portion of the national park to be used in conjunction with development outside the park).
The court did not address the claims that MOEW’s EIA was invalid for wont of proper participation procedures.
The court’s only reference to the topic was to say that the original EIA wassubmitted for public discussion. It failed to discuss the amendments to the Plan or the EIA.
Final outcome
On July 10, 2001, two days before the court’s decision, the Bulgarian Council of Ministers conceded the right to use part of the national park to Bansko. Under this deci-sion, the conceded portion of the park, considered exclusive state property, was leased to Bansko as conces-sionaire. That party is obliged to invest in the park and after a certain period (20-30 years), the park reverts to state ownership.
The two NGOs submitted an appeal of the court’s deci-sion to a higher court (cassation appeal). The appeal was rejected by the Administrative Court in September 2001.
The motives of the Appeals Court (consisting of five members of the Supreme Administrative Court) were similar to those formulated by the court of first instance.
The case was still pending in 2002, however, because the MOEW submitted to separate EIA procedures of all the ski runs in the Plan after the approval of the Plan for Development of the Pirin Mountain — Region Bansko.
These procedures finished with EIA decisions, issued by the MOEW. These decisions were appealed in the Supreme Administrative Court and the Court had not pronounced its decisions.
Meanwhile, the MOEW adjusted its procedures from the end of 2001 to stipulate — in some of its decisions containing conditions — that the decision will enter into force (and will be published) after the conditions provided in the decision are fulfilled. However, the MOEW has not applied this approach to all EIA decisions, which still required clarification (this is the question of the equal application of the law to the different persons).
Related actions and campaigns
The NGO community started a campaign to lobby the MOEW to stop the concession procedure. In July 2001, NGOs and several other organisations requested an open meeting with MOEW officials to discuss the matter. The meeting took place on August 10 and yielded valuable information that was used in the appeal. But there was no resolution of the matter.
In addition, in July and August 2001, and again in 2002, NGOs organised a series of press conferences, and other meetings and campaigns to promote their position.
Access to justice techniques
NGOs challenged the government’s decision through participation in approval proceedings, administrative appeals and by filing legal complaints for judicial review.
In the course of judicial review, NGOs requested that the court review the EIA report independently, rather than relying solely on the testimony of the government agency.
Towards this end, NGOs offered the testimony of experts and their own findings.
Case study analysis
Both the court’s refusal to hear expert testimony inde-pendent of MOEW and its failure to address possible procedural violations bring into question the degree to which the court was independent in its review.
Moreover, the court’s erroneous conclusion concerning citizens’ right to review amended documents and partici-pate in attendant discussions suggests that participatory rights have yet to move to the forefront as essential issues in judicial reviews.
Contacts
Parties to the proceeding Hristo Bojinov, Director
National Service for Nature Protection E-mail: bojinov@moew.govrn.bg Vania Grigorova, EIA Expert National Service for Nature Protection E-mail: vaniagr@moew.govrn.bg Author of case study
Alexander Kodjabashev, Attorney at Law Ecological Association Demeter
E-mail: kodjabashev@mbox.cit.bg
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