Hur används miljöbalkens rimlighetsavvägning vid miljötillståndsprövning?

Detta är en Master-uppsats från Lunds universitet/Miljövetenskaplig utbildning

Sammanfattning: In this master’s thesis I have studied the 7th section of the 2nd chapter in the Swedish environmental code (miljöbalken 1998:808). The regulation encompasses the proportionality principle of environmental consideration. Its purpose is to avoid that costly countermeasures are imposed that have limited or no negative impact on the environment. The proportionality principle in the environmental code is generally used in auditing and permit reviews of businesses but is in theory also applicable on individuals. When applied on businesses, the proportionality principle usually requires administrative officials to conduct an analysis regarding a proposed measure’s costs and its potential of reducing environmental impact. The main purpose of this study has been to research how this analysis is conducted in permit reviews and on what bases the proportionality principle is being ruled. I have chosen two methodological paths to answer my questions. Firstly, I have studied 51 rulings from the land and environment courts (mark- och miljödomstol). Secondly, I have conducted interviews with judges and technical judges from permit review offices. The studying of the rulings showed that there is a great variation between how the proceedings of the proportionality principle is demonstrated in the reasoning of the rulings. This means that it is difficult to draw general conclusions on how the proportionality principle is used in the courts. The main findings in the interviews were that sometimes the court and environmental permit offices have no legal guidelines but their own judgement to base their decisions on. This is incredible from a democratic perspective since it may very well be in conflict with the rule of law. The conducted interviews also suggested that furthering the existing collaborations between different courts and environmental permit offices would be one step to homogenise and democratise the process. Another important factor is to promote more specific reasoning in the rulings generating more precedential rulings in the higher instances.

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