(+372) 693 8404
[email protected]
Õiguskantsleri Kantselei
Kohtu 8, 15193 Tallinn
Chancellor of Justice Ülle Madise and the head of the Business Environment Department at the Chancellor of Justice’s Office, Evelin Lopman, wrote in the newsletter of the Association of Estonian Cities and Municipalities about the challenges of constructing wind farms.
People have legitimate concerns when a wind farm—or any other plan that could significantly change their home environment—is being proposed. Their concerns should not be dismissed or belittled. Equally unacceptable is telling people falsely that “public interest” under the law simply means public opinion. Case law confirms that public interest must not be equated with public opinion or the number of signatures collected against a plan—though both are relevant, they do not automatically outweigh all other interests and objectives. Conflicting public and private interests must always be thoroughly weighed, and the best and most just decision made in light of all interests. For such a decision, people’s concerns must be listened to respectfully and taken seriously. Arrogance, agitation, and underhanded tactics are completely inappropriate; no party—officials, developers, involved individuals, or vote-hungry politicians—should allow them.
Perhaps the misunderstanding of the legal term “compelling public interest” stems from the word “public.” Its legal meaning is very different from what people might assume in everyday speech. For instance, “public information” does not mean information accessible to everyone; it often refers to information produced by officials and other authorities, some of which is even classified. The phrase “public interest,” however, may lead to the misconception that it derives from opinion polls or the number of signatures collected. In legal theory, “public interest” refers to the long-term, general interest of society as a whole, determined by weighing conflicting goals, interests, and values. The unfortunate choice of words likely comes from translations from English, German, or French.
The Riigikogu (Estonian Parliament) has set out in law how decisions that change people’s home environments must be prepared: plans must be public, there must be public discussion, and if a home-changing project is truly being considered—such as dismantling a dam or building turbines or a railway—then the decision must be fully justified. It must be shown which different public (society-wide, long-term) interests were considered, and it must be demonstrated that the best compromise was found. If decisions were based solely on the number of signatures, one could imagine a scenario where a local dam—important to the community—would be removed because supporters of river restoration collected more signatures. The interests of people whose garden would be flooded would be ignored. That wouldn't be fair or wise. Likewise, it’s conceivable that a village’s largest employers and residents sign a joint statement supporting a wind farm because they are promised cheap electricity. Yet that too is not a sufficient basis for turbine installation. If it turns out that important forest habitats would be destroyed, the turbines are unlikely to be erected there.
The Chancellor of Justice is not permitted to decide on behalf of the municipality whether a wind farm should be built, nor to determine, in case of dispute, whether green projects—renewable energy—or preserving untouched nature—or even people’s preference that the wind farm not be built so their views and trees remain intact—should prevail. Because of the Chancellor’s constitutional role, she must refrain from evaluating expediency or political choices.
Thus: According to the Constitution, no public interest is inherently more important. Neither public health, nor security, nor climate change mitigation, nor anything else merits takeaway priority. Which public interest is more significant in a particular planning case, and whether balance can be reached, must be determined as prescribed in law. For example, cleaner energy production supports better air quality and can also provide a real competitive advantage in business. At the same time, renewable energy installations can have harmful environmental impacts. Renewable energy must not be pursued at any cost or in a way that harms existing significant natural values.
Beyond identifying the compelling public interest, private interests must also be weighed. One person may support a wind turbine because of compensation or cheap electricity; another may fear a loss in property value or business income due to a nearby wind park. These concerns must be assessed in the planning process. Private rights may only be limited when it is in the general interest, and the least restrictive measure is chosen.
It is entirely possible that a local authority, after weighing conflicting public and private interests, may conclude that the interest in not building a wind farm is dominant. If the reasoning is convincing and logical, court proceedings may not follow—or the court might side with the municipality.
Prolonged and heated planning processes breed mistrust and fear. One must never belittle someone’s health concerns. A lack of clear, factual, and honest discussion rightfully makes people anxious, which in turn leads to active opposition. That does not simplify open, evidence-based, and scientifically-grounded legal debate. Nevertheless, the law must be upheld, and whether a plan is sufficiently justified can ultimately be reviewed by a court. Human concerns are perfectly understandable, and it always pays to imagine oneself in another person’s shoes. Many have experienced the despair when a forest is cut, a tree is felled near your window, a powerline is placed behind your garden, a major road is built, or a pristine lake is polluted. That concern must never be dismissed, and both the state and local government must handle such matters honestly, without ideological blinders or arrogance.