3. Conclusions and discussion

As already noted, this part contains conclusions and remarks from the comparison among the Nordic systems for environmental permitting. The ambition here is to highlight a couple of key issues that were discussed during the Nordic workshop in March 2022. The text is aimed at providing a general understanding of certain key features that were elaborated on, although some evaluative remarks from the author also are included. When the latter occurs, it is clearly marked in the text. Further, when different opinions have been expressed, all shifting views are presented.

The discussion points presented in this part relate to whether the environmental permitting systems are integrated or divided into different decision-making procedures by several authorities. This point includes the relationship between the EIA procedure and the permit procedure(s). Some thoughts are also given about case processing time in the permit systems. Next the discussion elaborates on differences among the countries concerning permits limited for periods of time or without time limits (“eternal permits”). Thereafter, pros and cons are discussed about the relation between the permitting body and the authorities for the supervision and enforcement of the regulation in given permits. The last key point is how and when changes of the permits and the conditions therein are evaluated by the authorities and who may initiate an updating procedure in this context. Finally, some thoughts are given about the major challenges in the permitting systems.

The national permitting systems in the Nordic countries build to a large extent on an integrated approach. In the permit procedure concerning the scenarios chosen as examples, most environmental aspects of the industrial installation are evaluated, whether those are emissions to air, pollution of the ground and water, noise, waste management and water operations. Sometimes this follows from the design of applicable law, as is the case in Denmark, Sweden, and Norway. The Miljøbeskyttelsesloven (MBL), Miljöbalken (MB), and Forurensningsloven (FL) cover (almost) all environmental aspects of the regulated activities, which is the reason why permits issued under that legislation may set up all kinds of precautionary requirements and other conditions for the operators to adhere to. The Icelandic and Finnish legislation are more divided, but the authorities have wide possibilities to merge the permit procedures and thus obtain integration. The reason for integration can partly be found in the requirements of EU law, initially by the 1996 IPPC Directive (96/61), nowadays the IED (2010/75). As noted, all the Nordic countries are bound by that piece of common legislation. The picture is more divided as regards nature conservation and species protection as Iceland and Norway have legislation of their own on those issues, but even so, the integrated approach seems to apply. In all the systems studied, the permit authorities are required to take the “green interests” and protected areas such as nature reserves into account when regulating an activity.

Planning law is a different matter. Without exception in the Nordic countries, binding plans and building permits are for the municipalities to decide upon. Commonly, environmental law presupposes that plans precede permits in time. Even if this is not a legal requirement, plans do have an important steering effect on any subsequent permit according to the environmental legislation. As a general rule, one cannot obtain such a permit in breach of a binding plan. That way, compatibility with the plan becomes a necessary – but not sufficient – condition for issuing the environmental permit. In addition, the applicant must also comply with environmental regulation. Building permits, on the other hand, commonly – but not always – are issued by the local authorities after the environmental permit is in hand. Such a permit must obviously also be compatible with the overarching plan for the area in question. The division between what is regulated in the building permits and the environmental permits seems not to raise any specific challenges concerning industrial activities. Most, if not all, environmental effects of the activity are regulated in the environmental permit, whereas the building permit is more limited to issues concerning the building as such, the land and the logistics in the area.

Planning law and planning authorities also play an important role concerning the implementation of the EIA system in some of the Nordic countries. In Norway and Iceland, a SEA/EIA is mandatory for regional plans and local development plans if they allow for an activity that may have a significant effect on the environment. The EIA processed for this purpose may subsequently be used when applying for an environmental permit. If there is no such plan, the applicant for an environmental permit needs a decision on the matter from the municipal authorities. Also in Denmark (until 2018), the SEA/EIA procedures were found in the planning legislation, but today there is a specific Environmental Assessment Act. In Iceland, there is a similar separate piece of legislation, but it is for the National Planning Authority to decide on the quality of the EIA. In Sweden the SEA/EIA procedures are mainly regulated in the Environmental Code and in a subordinate governmental regulation. Iceland, Norway and Finland all have divided procedures for the EIAs and the environmental permits, with two different competent authorities issuing separate decisions. In Sweden, the EIA procedure and the permit procedure always are integrated into one. This is also commonly the case in Denmark, as there will be a joint decision on the EIA and the environmental permit.

One may find both pros and cons with the integration of environmental law and procedure. In those continental systems where the permit procedures are more divided, a common argument favouring such an approach is that environmental protection improves when specialized authorities on ambient air, water quality, etc. are set to defend their area of specialization. Contrasting with this, one may argue that concerning the legislation as such, it is a clear advantage for the developer to deal with one authority competent to handle all major environmental impacts from the activity in question (“one-stop-shop” or – as the saying goes in Finland – “allt i en lucka”). From an environmental point of view, it also seems beneficial to have one authority applying a holistic view to all the environmental impacts from the activity. Concerning the EIA, it may also seem efficient to have that procedure integrated in the permit procedure. On the other hand, with such integration there is an inherent risk that the permit body finds flaws in the investigation, but stills accepts the EIA as it “suffices to evaluate this application”. To undertake a comprehensive investigation and public participation procedure concluding with a decision on the EIA from an expert authority may seem more in line with the aims of the EIA Directive. Such a comprehensive EIA may thereafter be used for all permits needed to proceed with the activity in question. Against this, one may argue that such a system requires a mechanism in order to guarantee that the EIA is up to date. A confirmatory decision such as we find in the Icelandic system may be a solution to that. Another drawback with a separate EIA procedure is that it may trigger more appeals, which will make the decision-making lengthier. Finally, some of the Nordic countries have tied the EIA procedure to local development plans. It may seem a suitable solution, although it would be interesting to learn more about how one can foresee all the environmental impacts of the planned activity at such an early stage.

The case processing time from farm to fork depends on a variety of factors. Dealing with an activity that may require a decision on whether an EIA is needed, the processing of such a “screening decision” obviously will take some time. That way, activities listed in the “obligatory list” may be swifter to handle, although they commonly also are more complex concerning environmental impacts. Thereafter, the EIA procedure as such is time consuming, with consultations, remits, public hearings and – not least – several requests for supplementary investigation and information. When the EIA is confirmed – be that by a separate decision or by some kind of procedural move by the permit body such as the announcement of the application – finally, the permit procedure takes time in itself.

Concerning the screening decision, the time spent varies between one month in Finland, to 60 days (according to law) in Sweden and 90 days in Denmark. For the EIA procedures, they take on average 20 weeks in Iceland, 10–13 months in Finland, and 12–24 months in Denmark. As for the permit procedure as such, the time spent ranges from less than 7 months in Denmark (200 days), 8 months in Iceland, 9–12 months in Norway, 13 months in Finland and 7–8 or 12–18 months in Sweden, depending on whether the permit authority is the Regional Licensing Board or the Land and Environmental Court. It should be noted that these data on case processing time do not include plans and building permits according to that specific legislation. Even so, in most countries there are cases where the permit procedure as a whole has taken a substantially longer time, as much as 6–7 years. Some of the systems apply set time limits in legislation for parts of the procedure, while most utilize internal benchmarks or performance targets for the administration.

The overall impression from this study is that the Nordic systems do not differ very much in environmental permitting concerning the time spent for the decision-making in the first instance. However, a caveat is needed here; the question about how much time is spent for processing a permit application cannot be answered without a much more thorough investigation, applying a systematic approach with similar factors to take into account for each country. To begin with – what is being measured? A reasonable point of departure is that you cannot start the calculation until the application for an EIA or a permit is regarded as complete, which commonly triggers the announcement of the case to the public concerned. Even so, the case processing time varies a lot depending on what steps of the process is measured and what is integrated in those steps. Obviously, the different solutions chosen for the relationship between the EIA procedure and the permit procedure need to be taken into account. Further, it is meaningless to make a comparison without also considering the appeals stage, as, in some countries at least, a large portion of permit decisions are challenged either by the applicant or the public concerned. In this respect, it is for example almost impossible to undertake a relevant comparison between Norway and Sweden, where the appeals are made to the political level within the competent Ministry as compared to a court of law. Where the administrative decision-making may be swifter in Norway, the appeals stage may be (very) lengthy compared with the one in Sweden. Another factor that needs to be considered is if and under what conditions the permit can be utilized by the applicant during the time that the decision is on appeal.

During the workshop, the participants discussed the factors that usually have a negative or positive effect on the case processing time in environmental permitting cases. Changes in the application, the need for supplementary information, the lengthy remits to the municipalities and the lack of administrative resources in the permit body were pointed at as common factors that prolonged the procedures. On the positive side the participants mentioned better service to the applicants using digital tools and check lists, standard terms for certain installations, emphasizing the duty for the permit body to undertake investigation on its own accord in line with the ex officio principle, and cooperation between different permit bodies. On digitalization, there seem to be big differences among the countries. Iceland seems to have made the most progress in this respect, as the permitting bodies make information available to the public in a public database both during the procedures and after the decisions are made. It would be interesting to study further how to develop such means in order to improve legal certainty, transparency and public participation in the permit system. It was finally noted as a common understanding that there is a strong political urge for swifter permit processes, while also stressing that the standard for environmental protection must not be lowered.

In all of the Nordic countries except Iceland, the environmental permits are unlimited in time. In those countries having such “eternal” permits, time limited permits commonly can be used for certain kinds of activities or when the environmental impacts are uncertain. In Iceland, permits always are limited to 12 or 16 years depending upon whether the decision-maker is the municipal Environmental and Public Health Office or the Environment Agency. With this system, the permit holder is obliged to apply for a renewed license before the time period has elapsed for the current permit. When this happens, the permit procedure commonly is swifter as some of the old investigation can be used again. In all of the countries, the permit holder may – or under certain conditions are obliged to – apply for an update of the permit when important changes occur in the operation. Also the authorities can ask for updates or even revocation of the permit, but this rarely happens.

In Finland, Sweden and Denmark, a certain activity may be regulated by several different and subsequent permits. Thus, as one installation may have many permits, this impairs transparency and makes the understanding of what is regulated more complicated for the public concerned. In Norway, it is the activity that is regulated, not the installation. A “permit” is therefore often a combination of decisions made throughout the years. In contrast, a single permit is used in Iceland; and if changes are made to that permit, the permit document will be altered. As the permit will be posted on the authority's website, the regulation for the activity is easily accessible and understandable for the public concerned.

A question which was touched upon but not discussed in any depth in this study is what the environmental permit actually covers. The most obvious answer would be that it only covers what is expressly regulated with explicit conditions. However, this may not be the legal situation. In Sweden for example, the situation is more complex, as anything that is covered in the application can be said to be regulated in the permit, even if that issue is not mentioned in the permit or covered by an express condition. It would be interesting to undertake further comparison on this aspect of the permit systems. A closely related question is whether there is a legal requirement for the permit holder to continually work to reduce the emissions and other environmental effects of the permitted activity, as is the case in Norway.

In the Nordic permit systems, small changes in the operation of permitted activities are handled by the supervisory authorities. When emissions increase or more substantial changes are made in production or other parts of the activity, an amendment or a change in the permit is required. Commonly, such alterations can be made in the existing permit. Although some of the Nordic delegations stated that these “multilayer” permits do not create any problem from the administrations’ point of view, it was also noted that this issue also depends upon how often renewals were made. In Finland, for example, most permits are rather new as there was a major review around the year 2010. In contrast, many environmental permits in Sweden issued under the Environmental Protection Act during the period 1969–1997 still are valid. It was finally noted during the workshop that when changes are made in the permitted activity, an evaluation of the need for a renewed EIA is commonly made in all countries by way of a screening decision. Concerning new BAT conclusions, it was observed that all countries have challenges in meeting the 4-year time limit due to technical complexities and the construction of the national implementation legislation. Finally, the obligation for the supervisory authority to undertake regular overviews in order to control whether the permit is up to date and in line with best available techniques seems to be standard in all of the countries studied. Annual reports from the permit holder of the activity's performance and environmental effects are helpful in this respect.

Who may apply for a renewed permit procedure is another interesting question to discuss in this context. Obviously, the permit holder is able to make such an application. Also the permit body or the supervisory authority may take action in certain situations, if an agreement cannot be reached with the permit holder. Whether and under what conditions other authorities or the public concerned are able to take such initiatives or can challenge the competent authorities’ omission to do so was not elaborated upon during the workshop and may deserve further study. 

In Sweden, permitting and supervision/enforcement of given permits is traditionally handled by two separate authorities. After 2010, this is also the situation in Finland at the state level. Here however, the decision-making, supervision and enforcement in the municipalities is handled by the same authority. This is also the general system in Denmark, Norway and Iceland, meaning that the permit body also handles the control of the permitted activities.

One may discuss pros and cons in both systems. The Swedish perspective has always been that permitting and enforcement must be separated in order to avoid conflicts of interest. There is also a fear that if the competences are jointly organised, the permit function will always be prioritised over enforcement when resources are meagre. Another advantage to the separation of permitting and enforcement is the safeguarding of transparency in the system. On the other hand, from those systems where the enforcement of the permits is handled by the permit body, it has been argued that such an organisation facilitates communication between the authorities and the operators. As an example, the procedure for adaptations and alterations of the permits becomes swifter and easier to handle. It is also an advantage for those who handle the issuing of permits to get feedback from the civil servants responsible for supervision of the activities.

Both systems may seem have good arguments on their side, but in this question as in many other in this study, a full picture cannot be obtained without hearing the opinion of the operators and the public concerned. It would also not be very surprising if the legislator in Brussels wants to have a say in the matter, as enforcement of EU law has come in focus in recent years.

Obstructing factors and other challenges in the permit procedure have also been discussed in the study. A general viewpoint from the delegations was that the applications often lack necessary information and therefore must be amended, while at the same time there is a high pressure to handle permit cases swiftly. Moreover, baseline reports according to IED, the Habitats Directive and the Water Framework Directive are technically complicated and legally difficult to handle. Also the requirements of the Seveso Directive (2012/18) prolong the permit procedure as many different authorities are involved. These are examples from a general development within environmental law, not least on EU level, namely that the regulation becomes more and more complicated. How to handle this in a manner that meets the requirements of legal certainty, equality and transparency, while at the same time meet the demands for swifter case handling, is a major challenge for the administration. In this respect, lack of administrative resources and access to experienced personnel are obviously decisive for the efficiency of the decision-making authorities and courts. As an example, the delegation from Sweden mentioned that the Regional Licensing Boards are not always staffed with full time experts. Moreover, courts do not normally have the possibility of prioritizing between large scale operations of economic and social importance and more minor cases, such as conflicts between neighbours. During the permit procedure, requests for prolonged time limits for remits may cause substantial delays. Further, a viewpoint that was expressed during the discussion was that the definition of what constitutes a “major change” or “significant change” in a given permit may be a complex matter to decide. And finally it was pointed out that the municipalities must be involved in an early stage of the permit procedure in order to ensure that the information about local plans etc. is updated and correct.