The ruling that rejects the appeals against the oil surveys off the coast of Lanzarote and Fuerteventura has clearly divided the magistrates of the Third Section of the Supreme Court. In fact, only three of the five judges that comprise it decided to support the surveys, while the other two (José Manuel Bandrés Sánchez-Cruzat and Isabel Perelló Doménech) have issued a dissenting opinion showing their "disagreement" with the criteria of the chamber.
Among other things, they criticize that in the decree of March 2012 (which validated the authorization that had been granted and annulled by the Justice in 2001), an article was added on "environmental protection measures" that "is, due to its lack of specificity and precision, insufficient to meet the requirements established" in the Hydrocarbons Law.
"It should have been required" of Repsol, these two magistrates argue, "the inclusion of a detailed environmental study, which included an inventory of the assets and environmental interests affected by the forecast of carrying out drilling in the seabed near the islands of Lanzarote and Fuerteventura, which identified and clarified the possible environmental impacts that could occur in a spatial area qualified by its high ecological value and special environmental sensitivity, which would allow the Council of Ministers to adopt its decision on the advisability of authorizing or denying research permits with full knowledge of the existing environmental values."
Therefore, in this dissenting opinion, they conclude that "the omission of this environmental study (...) would determine the partial estimation of the contentious-administrative appeal filed by the Cabildo of Fuerteventura and the declaration of annulment of the Royal Decree" that authorized the surveys, at least until "correcting the environmental deficiencies noted." A position that did not prosper and that prevented the Supreme Court from stopping the surveys, as the decision of the other three magistrates prevailed.
"Principles of caution" and "prudent use of natural resources"
The two magistrates who have issued a dissenting opinion also point out that, "in their case, if there were doubts about the interpretation of the examined Directives," they should have addressed the Court of Justice of the European Union before issuing a ruling, in order to "confront the administrative and judicial application of the national legislation of the regulatory sector of hydrocarbons", with "the environmental requirements that derive from the Law of the European Union."
In this regard, they recall that the Treaty Establishing the European Community emphasizes that "the Community's policy on the environment must contribute, among other things, to the preservation, protection and improvement of the quality of the environment, to the protection of human health and to the prudent and rational use of natural resources, and that it must be based on principles of caution, since environmental protection requirements must be integrated into Community policies and activities, with a view in particular to promoting sustainable development of our habitats and ecosystems."
For its part, the ruling itself that rejects the appeals against the surveys recognizes that "the issues in dispute presented sufficient doubts of fact and law, associated with their undeniable complexity," so despite the usual criteria in these cases, it does not impose the payment of costs on the appellants.