On September 16, 2021, the Swedish Council on Legislation (Law Council) published an opinion (lagrådsyttrande) in which it determined that a government proposal to amend the Swedish Environmental Code was unconstitutional.
As proposed, the amendment to the Environmental Code (Miljöbalk) would allow the government to review and accept applications for certain environmentally harmful limestone mining activities during a limited time period, specifically by adding a chapter 17a granting the government the power to review certain time-limited permits to quarry limestone when the applicant has a previous permit, the application is in the public interest, and the need to quarry limestone cannot otherwise be met.
The government proposal comes as a response to a decision by the Supreme Land and Environmental Court at the Svea Court of Appeal (Mark- och miljööverdomstolen vid Svea hovrätt) on July 6, 2021, in which the court refused to extend a permit to quarry limestone in Gotland, Sweden, deeming the corporate climate consequence report inadequate. The Supreme Court on August 25, 2021, decided not to grant leave to appeal. According to the government proposal, refusal to grant an extension of the permits would result in a national shortage of concrete because a large majority of the concrete used in Sweden comes from this limestone quarry, and rapid changes to Swedish law to keep the quarry operational are therefore needed.
In accordance with Swedish law, proposals by the government are subject to stakeholder review. (7 kap. 2 § Regeringsformen [RF] (Constitution).) The government sent its proposal for review on August 30, 2021, to 39 stakeholders, including industry representatives, government agencies, courts, and interest organizations. A response was due that same week, on September 3, 2021.
Following the stakeholder review, government proposals undergo review by the Law Council, which is an independent body tasked with reviewing the constitutionality of government proposals. (8 kap. 20–22 § RF.) The Swedish government sent its proposal (lagrådsremiss) for review on September 9, 2021.
The Law Council’s Opinion
The Law Council found that it could not endorse the proposal, either in process or substance.
The council started by reviewing the short stakeholder review period and determined that, because the proposal had been sent to relatively few legal organizations, this made it impossible to solicit an adequate response before the deadline. Referencing Supreme Court case NJA 2018 s. 743, the council determined that an overly short review period violates the Constitution. In particular, the court noted that, “[i]n order to justify deviating in this manner from the common review process by providing an extremely short stakeholder review and sending the review to a limited number of [judicial] stakeholders [such as courts and other stakeholders with legal knowledge], extraordinarily strong reasons are required.” (Opinion at 6.)
The council then concluded that such extraordinarily strong reasons had not been presented, finding that “the review requirement in 7 ch. 2 § of the Constitution has not been fulfilled. For this reason alone, the referral to the Law Council cannot constitute the basis for legislation.” (Opinion at 7.)
It then went on to evaluate the content of the proposal and put forth several objections. In particular, the council noted that the amendment, as proposed, violated the principle of generality in the Swedish Constitution, meaning that laws must be general in nature and not adopted with one specific party in mind. (11 kap. 4 § RF.) The council especially pointed out that even though the text was neutral and could, in theory, apply to a number of corporations, the short period of validity of the law — less than three months — and its being adopted in response directly to the Environmental Court’s ruling made the proposal unconstitutional. According to the council, the measure did not appear to change the applicable rules in general but to be specifically adopted to correct the outcome of a court verdict. The council went on to point out that this risks undermining confidence in the rule of law as well as the division of power between the legislative and the judicial functions. (Opinion at 7–9.)
Another objection the council raised was that changing paragraph 1 of chapter 24, section 18 of the Environmental Code to create a new legal term — prövningsmyndighet (the review authority) — to categorize decisions of both the government and the courts would expand the government’s power to include the issuance of other unrelated permits, and that instead of generically referring to “review authority” the government should specify that it meant courts and the government. It also found that the half-page of the proposal that addressed sanctions did not sufficiently address this aspect of the amendment and therefore needed further review. (Opinion at 4.)The Law Council concluded by stating that it “is well aware of the pressing need for fulfilling [access to] cement” but that it “cannot endorse the proposals in the review proposal.” (Opinion at 9.) The Swedish government, however, has since announced that it will go ahead with the amendment despite the Law Council’s objection and that it has sent a proposal to the Swedish parliament to be voted on.