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  • Alper Işıkal

The Energy Law - Environmental Law Relationship

Updated: Mar 31, 2022

The aim of the relationship between the Energy Law and the Environmental Law is the generation of energy with environmental harm in levels that can be tolerated by the environment. The Administration is responsible to ensure "sustainable development", which is the main target, and on the other hand ensure the "protection of the environment"; which can only be attained through the utilization of Renewable Energy Sources ("RES") fır the generation of energy. The current preference of the Administration is to establish legal regulations to introduce certain incentive and support mechanisms ("RESSM"), rather than imposing obligatory rules for the utilization of RESs. The Administration primarily determines the regions where RSS investments can be conducted, produces RSS maps and sends such maps to the bodies authorized to prepare zoning plans in such regions, and such RSS regions are ex-officio recorded in the zoning plans by the relevant authorities. In regions registered as RSS regions, no zoning plans may be prepared against such nature of the region. RSS areas may be set in certain lands within protected natural areas, subject to the permission of the Natural Heritage Preservation Boards. In the determination of RSS areas, public benefits and environmental factors conflict within the context of the energy needs of the country. For example, wind turbines are generally located in areas such as protected areas, shore areas, etc., due to the nature of such regions. Establishment of such facilities inherently requires interventions to those special areas. In such conflicts, the "principle decision" of the Cultural and Natural Heritage Conservation Higher Board, dated 20.07.2011 and No.688, provides directions. The said decision provides that; "In a process where utilization of sources harmless to the environment is gaining ever more importance for the protection of the environment globally; within the context of the policy providing that establishment of wind power plants is principally deemed appropriate in Turkey, as is throughout the world, and should be supported and encouraged; the specifications and locations of the wind power plants in protected natural areas, as well as the previous conservation board resolutions for such areas may be re-assessed by the conservation boards, taking into consideration the opinions of the relevant public institutions and organizations..." . The said boards assess each case based on their own conditions, and resolve on the issues based on the Environmental Impact Assessment ("EIA") reports. Then, what is EIA? EIA roughly assesses issues such as "What harm may be caused to the environment?", "What precautions were taken to minimize the harm?", etc. The EIA regulation in effect includes detailed provisions on the topic. The criteria regarding whether or not being subject to the EIA regulations is whether or not the activity performed has any impacts on the environment, regardless of the institutions being public or private. The regulations provide that performance of certain activities specified in the chart are definitely subject to a "EIA Positive" report, while for other activities, requirement for a "EIA Report" should be assessed on a case-by-case basis by the authorized administration, based on the specifications of the related location and the project. The authorized administration is primarily the ministry; however, it is provided that the decisive authority may be delegated to the governorship of the related district for certain activities. In cases where a project qualified for a "EIA Positive" report is not initiated within 7 years, the "EIA Positive" report will be expired. In case of a "EIA Negative" report, the aspects of the activity that resulted in the negative result may be corrected and a new application may be filed. "EIA Positive" and "EIA Negative" reports may be subject to lawsuits, as they are final and executable activities within the context of the Administrative Jurisdiction Procedures Law (İYUK). Sanctions for violation of the EIA include termination of activities and administrative fines in cases where the activities are initiated in compliance with the EIA but violating activities are performed later. Moreover, no incentives approvals, etc. are granted administratively.

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