Speech at the seminar on Environmental policy evaluation and tribute to the legacy of Mr. Mikael Hildén – Expert Judge: Between Science and Law

Dear Mikael, distinguished colleagues, friends

thank you for the opportunity to give a talk in this seminar dedicated to director, professor Mikael Hildén for his outstanding work in the fields of environmental science, policy, and law.

The point of view in my presentation is based on Hille´s important role as an expert judge at the Supreme Administrative Court (SAC). Before I go into this subject, let me look back to year 2015, when Mikael turned 50: his colleagues and friends edited a publication “Hille Review of Books” to celebrate the milestone. I also had the honour to contribute, and wrote a review on Pippi Långstocking, reflecting my favourite reading at the time my children were small. It may be mentioned that this article is not included in my CV and list of publications. But this time, ladies and gentlemen, I have chosen a more scientific topic, based on both quantitative and qualitative analysis.

Professor Hildén has served as an expert counsellor of the environment at the SAC since 2005. On this occasion, it should be emphasised that he continues this important work, lastly yesterday we were to have court deliberations, even if he has retired from his primary occupation. Only exceptional persons can retire twice, even if they only live once, as James Bond would put it.

First some background: what is an expert judge and in which kinds of cases do they work? The work of an expert judge at the SAC is a secondary occupation, but their position during their five-year-term is independent and protected in the same manner as judges in general. They are appointed by the President of the Republic. It should be emphasised that expert judges decide cases on an equal footing, side by side with legally trained judges, being fully responsible for taking a stand e.g. to procedural and other purely legal issues. Expert judges take part in deciding cases concerning environmental protection act and water law. They are typically highly qualified scholars of natural sciences or technology, often professors at universities or research institutions. There are two expert judges in the panel with five legally trained judges plus a referendary, when a final decision in substance is to be made. If the case is in the first stage, leave to appeal handling, the panel is most often 3 + 1 and referendary.

When preparing my presentation, I conducted a search in the Finlex case law database. I learnt that words “Mikael Hildén” amounted to 89 hits from 2005 to 2022 (by far the greatest number of SAC decisions are not published, so please do not think that Hille has not been hard-working during these 17 years). I checked that Mikael Hildén played the role of an expert judge in all of these, not e.g. as an appellant quarrelling about his neighbour´s pier. Some twenty cases of this sample were so-called yearbook decisions, meaning precedents, leading cases guiding the work of lower courts and authorities.

These 20 cases can be grouped in several ways. They include cases concerning waste management, air pollution control, water pollution control, noise abatement, and measures against smell, as well as water management cases. There have been industrial installations, hydropower plants, peat production, military artillery shooting, animal farming, stone crushing, etc. Most cases concern environmental permits, but there are also water management permits and cases concerning administrative coercion (e.g., cleaning of contaminated soil and groundwater), and even damages (connected to a water management project).

In the time available, I can only highlight some features of this considerable case load, by also picking a fun fact.

The most recent and obviously one of the most important and best-known of these cases is the environmental and water permit case of the planned Sokli mine in Eastern Lapland (SAC 2022:3). After a two-day on-site inspection, SAC overturned the decisions of the permit authority and Vaasa Administrative Court and returned the case back to the Regional State Administrative Agency for reconsideration. Key issues seem to have been (I was not in the panel) insufficient documentation of the water management systems and the effects of solid matter loading, threatening the vulnerable Nuorttijoki River Trout population. Also, EU Water Policy Framework Directive was referred to, as well as the famous Court of Justice of the European Union (CJEU) Weser judgment.

The second pair of cases I would like to refer is also inextricably linked to EU law, as is the case often in the field environmental law. In the environmental permit matter of Lahti Energia Kymijärvi waste co-incineration plant SAC had to refer the case twice to the CJEU for preliminary ruling. As far as I know, this is the only Finnish case ever with this kind of double procedure (SAC 2010:58). It is not possible for me to give an adequate, concise picture about this pair of cases. Suffice it to say that it is our conviction that on the first round the CJEU did not quite understand the problems of burning purified so-called REF product gas in the neighbouring power plant. And when the company received the judgment of the Court they happily let us know that, deviating from the original plan, they would not filter the gas (because the CJEU did not consider it elementary in order to apply lower emission limit values). In this novel situation we did not have another possibility than to ask again, and the answer came quickly and could be summarised as: do not ask stupid questions, when the gas will not be purified, stricter requirements apply. A little bit frustrating, indeed.

One of the fun facts in the case material is key word eel gutter (in Finnish, ankeriaskouru, SAC 2016:84). The water law permit for a hydropower plant, issued in 1943, had included an obligation to construct an eel gutter to enable eels to pass the power plant, but it was never accomplished. Then SAC had to assess how much the power company had to pay in compensation for the neglected obligation.

The role of expert judges in environmental protection and water law cases is vital. As I have tried to describe the variation of these cases in SAC is immense. No expert judge can be a scientific expert in all types of cases. However, they have a kind of scientific literacy, they can make us lawyers understand the forecasted effects of different activities in different ecosystems, help to evaluate the extensive scientific documentation in the case files. By having this expertise available in the court deliberations, SAC is in position to make much better reasoned decisions when applying vague provisions of environmental law case-by-case. And, dear friends, based on my experience for more than twenty years, I can guarantee that Hille is among the very best of these expert judges ever.