The purpose of the report is to analyze the expediency of the Cementa licensing procedure. The underlying questions concern what common (objective) factors can help explain the outcomes of each of the above-mentioned court decisions, as well as whether the procedure fulfills the criteria for an expedient licensing procedure.

This report investigates the licensing procedure of Cementa Inc., i.e., its operations in Slite at Gotland, and the decisions taken by the Land and Environmental Court (in 2020) and by the Land and Environmental Court of Appeal (in 2021). In January 2020, the Land and Environmental Court of Appeal decided to grant Cementa a license for their operations. This decision was however appealed and in June 2021, the Land and Environmental Court of Appeal rejected the company’s license application because it was insufficient (i.e., it did not, the Court maintained, provide the full information needed to assess the impacts of the operations on the environment). As a result, at October 31, 2021, Cementa’s environmental license ceased and the quarry operations came to a stop.

The purpose of the report is to analyze the expediency of the Cementa licensing procedure. The underlying questions concern what common (objective) factors can help explain the outcomes of each of the above-mentioned court decisions, as well as whether the procedure fulfills the criteria for an expedient licensing procedure.

The analysis departs from a simple analytical framework, which introduces three important aspects of a licensing procedure that result in reduced environmental impacts without jeopardizing the competitiveness of industrial operations. These are:

1. The first prerequisite concerns flexibility. There is first flexibility in terms of the industry’s discretion to choose which measures should be implemented, including the localization of the facility, to reduce any negative environmental impacts. Another aspect of flexibility concerns how quickly the industry must meet the stipulated conditions of the license. Clearly stipulated emission limit values, an efficient territorial planning process and extended compliance periods are three important instruments for achieving flexibility.
2. The second prerequisite is predictability and transparency of the licensing process. This concerns, e.g., the duration and implementation of this process, as well as the content of the final license conditions. Predictability and transparency could be achieved through shorter lead times, as well as clear instructions and guidelines concerning how the legal rules should be interpreted in the context of individual industrial operations.
3. The third and final prerequisite concerns the level of knowledge amongst the involved authorities regarding the technological possibilities to reduce pollution and their economic consequences. A high level of knowledge allows for equal and consensus-oriented – while at the same time tough – negotiations about licensing conditions between the industry and the regulatory authorities.
   

Regarding the expediency of the licensing of Cementa’s activities, the following can be stated as for the preconditions for such a process:

• The Land and Environmental Court of Appeal does not consider Cementa’s application in substance. Therefore, it is not possible to say anything about the expediency of that examination with regard to the outcome in the form of, for example, conditions for the permit or the period of time within which these must be met. The permit and the conditions decided by the Land and Environmental Court contained both limit values (e g. for noise and vibrations) and more standardized requirements for, for example, the storage of chemical products. It can be noted that
  the Court established the conditions proposed by Cementa with extremely marginal changes.

• On the subject of the predictability and transparency of the examination regarding time consumption, rule interpretation and conditions, it can be ascertained that neither the Land and Environmental Court nor the Land and Environmental Court of Appeal’s decision provides a satisfactory answer to the question why the different instances come to such different conclusions, other than that the Environmental Court of Appeal makes a different assessment of the quality of the environmental impact statement. However, the starting points for the assessment by the Land and Environmental Court of Appeal and the decision to reject the application are clearly stated and cannot be questioned legally. An acceptable environmental impact statement is a prerequisite for a substantive assessment of the application. At the same time, the predictability of this decision can be discussed in the light of the fact that some uncertainty can still be said to exist regarding whether and when it is instead possible to supplement the application. Not least with a view to the foregoing acceptance of this environmental impact statement by the Land and Environmental Court. However, this approval was made without an analysis of either the environmental impact statement's function for the assessment of the application, or with reference to the request from the consultation authorities to reject of the application. The decision thus provides no guidance as to whether and, if so, how the Land and Environmental Court reasoned in this regard. In light of the Land and Environmental Court of Appeal’s later interpretation of the matter, and the importance of predictability and transparency, this can be considered a clear shortcoming.

• The case can also be discussed in the light of the court's duty to investigate. The Land and Environmental Court of Appeal has previously ruled that the investigative duty of the Land and Environmental Court includes ensuring through active process management that an application for a permit has the direction and scope required for relevant environmental effects to be taken into account and necessary conditions prescribed. This, in combination with the fact that it is unclear whether any dialogue regarding possible outcomes of the assessment took place during the processing time, indicates that the process was not expedient in this respect.
• In light of the criterion that is about knowledge and consensus-oriented and trust-based negotiations, the following is noted. Knowledge transfer and legitimacy are promoted by long-term and trust-based collaborations between the state and industry. Trust affects how risks are understood and perceived and is therefore an important factor in addressing future uncertainty, for example regarding costs for precautionary measures. The continuous dialogue and exchange of experience that lays the foundation for trust between all parties, and which is a prerequisite for an expedient environmental assessment has, as far as appears from the material, not characterized either the Land and Environmental Court, or the Land and Environmental Court of Appeal’s review of Cementa’s permit application.