Environmental licenses and the mining sector
– Potential for increased efficiency based on three case studies
Growth Analysis has studied the processing time for environmental licenses for mining and determined that the time it takes to process licenses varies from case to case. Delays can occur at many different stages of the process.
A number of organisations participate in the adjudication process; therefore, all of those concerned need to have sufficient capacity and relevant substantive knowledge if licenses are to be processed in a timely fashion. Disagreements among parties as to what a complete application must contain have been a recurring and time-consuming issue in all of the three adjudication processes we studied. In two of the cases, we observed a number of conflicts of interest as regards land-use issues. These conflicts should already have been resolved before the exploitation concession was granted, in an established process that precedes the application for an environmental license.
Three different mining projects; no standard adjudication process
The three cases we studied concerned differed types of mining projects: (1) a production increase in an existing mine; (2) a new mine within an industrial area housing other mining-related activities; and, (3) a new mine on a previously unexploited site. Two of the mining companies that applied for an environmental license have extensive experience and knowledge of the process in Sweden, while the third was relatively inexperienced. The mining projects we studied were located in three counties, and the cases were handled by two different Land and Environment Courts. We followed the adjudication process step by step using material from the courts’ archives, as well as through interviews and site visits.
Public consultation is crucial, but fails to meet expectations
In two cases, local conflicts of interest concerning land-use surfaced when the mining companies held the compulsory public consultations on the projects. Some groups responded positively to the prospect of new jobs that a mine can create. Other groups were concerned about possible negative impacts on other local industries, such as reindeer-herding, as well as on the local environment and recreational areas. The mining companies and other groups with whom they must consult (public agencies and affected private parties) all view public consultation as crucial to ensuring a fair and efficient licensing process. The companies see public consultation as a tool to gain information from public agencies concerning the materials that must be included in their application to ensure that it will be deemed complete. Public agencies and affected private parties view consultation as an arena for dialogue with the mining companies where they can receive information and raise their own issues and concerns.
Despite this, however, neither the mining companies nor the consultative bodies or other parties referenced found that their objectives were met by the public consultation exercise. The companies have raised complaints about a lack of engagement on the part of the public agencies involved, while other parties have raised the quality and quantity of information received from companies on the project as an issue. They do not feel that an open, two-way dialogue was established.
Parties generally submit consultation comments and opinions in a timely fashion
All parties concerned have at some point in the process requested extended deadlines for submitting comments and opinions, both during the process of amending the application (until it is deemed to be complete) as well as during the subsequent process of collecting comments from public agencies and affected private parties. In the three cases we studied, public agencies have not requested particularly long extended deadlines, and the courts have consistently acted expeditiously upon parties’ queries and requests for documents. We found that the mining companies requested the longest extended deadlines, in one case extensions amounting to more than two years were requested and granted by the courts. There may be several explanations for this, however. Changes to a proposed mining project often require comprehensive and time-consuming environmental studies, a number of which only can be carried out under the part of the year when the ground is not covered by snow.
Time and knowledge are essential in hearing concerned parties
Civil society and affected private parties (local property owners and persons with land-use rights) submitted consultation comments and opinions to the courts in two of the cases we studied. These parties describe the process as arduous and time-consuming. The material they were requested to comment on was both complicated and technical. They had to read the material during their own time, without any compensation or external support. They deemed the costs of engaging experts or consultants to assist them with the process to be prohibitive. Due to lack of resources and other business commitments, some affected private parties chose not to submit comments or opinions. The municipalities concerned reported that they had prioritised participating in the process, but that they, due to limited resources, were forced to temporarily suspend some of their other municipal duties.
Lack of consensus on what an application must contain to be deemed complete
In all three cases we studied, the mining companies were asked several times to amend their applications for an environmental licence. This was time-consuming. In two cases disagreements among parties as to what materials were required in the application remained up to and after the day of the court hearing. In one of these cases the application was dismissed by the court after a five-year process, due to deficiencies in the environmental impact assessment and lack of legal access to water resources. In another case one party lodged an appeal against the court’s judgement. The judgement was subsequently overturned by the then Environmental Court of Appeal (now: Land and Environment Court of Appeal) and the environmental license was suspended. The dispute in this case concerned whether or not the company’s application should have included other industrial activities at the same site associated with the proposed mining project.
The efficiency of the environmental licensing process can be increased
Our case studies show that there is plenty of potential for increasing the efficiency of the process, primarily in three areas:
1. Address conflicts of interest concerning land-use issues at an early stage. Today land-use issues are handled when an exploitation concession is granted, but conflicts may still remain and affect the subsequent environmental licensing process. We recommend that the government consider ways to better use strategic land-use planning and socio-economic impact analysis, which may contribute to the issuance of more well-founded and broadly accepted decisions.
2. Support consultation bodies so that they can participate in the process in a meaningful way, without unnecessary delays. Affected private parties and civil society often lack the necessary resources to handle the complicated and voluminous materials that are required in an application for an environmental license. Even public authorities, such as municipalities, can from time to time experience resource constraints, for example, during the mining boom when many projects had been put forth within a relatively short period. We recommend that the government consider ways to provide affected parties with access to impartial and easily assimilated information and materials on mining projects through an impartial third party.
3. Bring increased clarity regarding what materials are necessary for an application to be deemed complete and sufficient. In all three cases we studied, the mining companies’ applications needed to be amended several times. In two of the cases the disputes that arose as to whether or not the application was sufficient led to renewed court proceedings. We recommend that the government consider instituting a process to assure the quality of applications and environmental impact assessments at an early stage, before the adjudication process commences. That alone should lead to a smoother process, more harmonious relationships between affected parties, and the issuance of more well-considered licenses.
Environmental licenses and the mining sector – Potential for increased efficiency based on three case studies
Serial number: PM 2016:14
Reference number: 2015/180