The Ukrainian National Nuclear Energy Generating Company Energoatom is fighting public opposition to its plans to flood part of an area of vital environmental, historic and cultural significance.

An appeal brought by Energoatom and the Mykolaiv Regional Council was heard on 13 August in the Odessa Administrative Court of Appeal. The claimants are objecting to a ruling issued in January this year by the Central District Court in Mykolaiv. The latter, having examined a civil suit brought by residents of Mykolaiv and defended by the environmental organization “Environment – People – Law” [EPL] declared unlawful the decision by the Mykolaiv Regional Council from 6 July 2006 to remove 27.72 hectares from the State-owned regional landscape park “Granite-Steppe Pobuzhya” and hand it over to Energoatom for the latter’s energy needs. Energoatom wants to make this area the tail end of the Alexandrovsky Reservoir, this meaning that a substantial area of what should be national reserve land will be flooded.  This will clearly lead to major and irreparable damage to an area containing considerable flora and fauna registered in Ukraine’s Red Book, as well as jeopardizing vital parts of Ukraine’s historic and cultural legacy.

The original civil claim had argued that the rights and interests of Ukrainian citizens were being violated by the decision unlawfully taken by the Mykolaiv Regional Council to remove State-owned land and hand it over for flooding. On 22 January 2007 the Central District Court in Mykolaiv allowed the claim, revoking the unlawful decision.  It is likely that the pressure being brought to bear at present by those who lodged an appeal is great.  The final hearing is scheduled for 27 August.

This case is of crucial symbolic importance and we would ask you to ensure that no decisions are taken without nationwide and international attention.

What is at stake?

We will address here only what Ukraine stands to lose.  Energoatom has the resources to present its own arguments should it have any.

For Ukraine, the loss would be huge.

While the appeal refers to one specific decision by the Mykolaiv Regional Council, the issue is broader. Energoatom is involved because of its construction of the Tashlyk Hydro Accumulating Power Station {Tashlyk HAPS].  This requires that the water level in the Alexandrovsky Reservoir be raised still further, with the direct consequence being the flooding of land on the regional landscape park “Granite-Steppe Pobuzhya”. Under threat of being flooded are unique wildlife and plants, as well as monuments of historic and cultural heritage, including the Gard Tract which is the last authentic landscape from the time of the Zaporizhyan Sich [the fortress of the Zaporizhyan Cossacks on the Khortytsa Island].

A crucial element in the controversy over the Tashlyk HAPS itself is the lack of positive environmental impact study assessments. The conditions given in the expert opinion issued by the Ministry for Environmental Protection in 1998 have still not been carried out.  In fact the situation borders on the surreal since it is not simply the lack of positive feedback, but the number of negative assessments from entirely component bodies which is, so to speak, noteworthy, these including the Ministry for Environmental Protection, the Ministry of Culture and the Prosecutor General. The Ministry for Environmental Protection objected when in spring 2006 Ministry of Fuel and Energy engineers raised the water level in the Alexandrovsky Reservoir resulting in a part of the regional landscape park being flooded.  It pointed to the number of laws which had been violated, and demanded that the previous water level be gradually restored. 

Incidentally, 2007 has been a dangerously dry year and people at the lower end of the Southern Bug River are now finding themselves without enough water following the unlawful raising of the water level.  Energoatom is concerned only about the provision of water to the reservoir. Presumably, if they thought about it at all, they assumed somebody else would take care of what the people below would do when the rains failed.  True, they weren’t to know that specifically 2007 would be so dry.  They were however to know, and it was their duty to consider, that this was a possibility, if not in 2007, then in 2008, or at a later date.  

It is, indeed, surreal how many official authorities have been ignored and how flagrantly so many normative acts have been infringed. It is also immensely frustrating since the project is continuing to be implemented with financing from the Special Fund of the State Budget.

Furthermore, the Cabinet of Ministers ion 20 June 2006 passed a Resolution officially approving the transfer of the land to Energoatom. The sheer number of procedural irregularities is staggering, with members of the Cabinet not having seen the relevant documentation, some members categorically against the transfer and without the Ministry of Justice having assessed its legality.

One wonders what levers were at play in encouraging such a decision.  It is to be feared that they are not ones which you and I have immediately at our fingertips.

It is for this reason that the coming Court of Appeal judgment is so vital, at least symbolically (since it will not touch the Cabinet of Ministers Resolution) as indeed was the ruling it is seeking to have overturned.  It is clear that a regional council may not give away land of environmental and historic significance, and the public have a right to defend their environmental and cultural interests.

What is also plain, however, is that the interests involved in the Tashlyk HAPS and in the flooding of Ukraine’s heritage are potent and not in the slightest harmonized with the real needs of the Ukrainian people. Ukrainian legislation is there to be adhered to and Ukraine’s commitments under the Aarhus Convention (on access to information, public participation in decision-making and access to justice in environmental matters) as well as other international agreements are not merely fine words, but legally binding documents..  And most fundamentally, Ukraine’s natural, historic and cultural legacy is not an expendable commodity and must be protected now.

Halya Coynash

Kharkiv Human Rights Protection Group

See also:  http://www.khpg.org.ua/en/index.php?id=1187607529 and http://www.khpg.org.ua/en/index.php?id=1166122352