The judgement of Supreme Court of Estonia annulling the peat extraction permit in the Elbu bog will impact future decisions

Estonian Ornithological Society contested the decision of the Environmental Board to grant OÜ Hiiu Turvas a permit to extract peat in the Elbu bog, which is a part of Lavassaare wetland area. In its recent judgement, the Supreme Court of Estonia decided to annul the given permit.

The Environmental Board granted a permit already in July 2020 for peat extraction in Elbu bog, which is an important bird area. However, the planned extraction site was located outside the nationally protected areas. The extraction permit was revoked mostly because the impact of the draining and extraction of peat on the bird species living in the marsh as well as on the bog as a habitat was not properly considered when the permit was granted.

In its decision, the Supreme Court clarified several important issues, which should be kept in mind in the future when issuing extraction permits:

1) in the case of mineral resource extraction, if it affects protected species and habitats even outside the national protected areas, the impact of the activity of these species and habitats on a national level must be assessed, considering also other factors impacting species and habitats as well as their overall status;

2) even when granting individual permits, national strategies (e.g., on biodiversity, climate change mitigation) must be taken into account, which in this case stipulated that no new natural peat areas and bogs should be drained;

3) after identifying the (primarily economic) benefits and downsides (primarily negative impact on the environment, including climate change) of the proposed mining operation, it is necessary to consider whether the benefits outweigh the losses, including whether it would not be more efficient to mine in some other, less valuable area;

4) the drainage of natural peat bogs should not be allowed simply because it can theoretically be compensated by the restoration of bogs in other areas.

In these matters, the previous practice of the Environmental Board has been different from the Supreme Court, so it is expected that the new decision will affect the practice more widely.

COBALT team, led by Senior Associate Siim Vahtrus advised and represented the Estonian Ornithological Society in the dispute.