Analysis: The preamble decision can lead to a government crisis

The decision made on Wednesday is an opinion of the Land and Environmental Court. The court says yes to Preem's expansion and the matter is now referred to the government for a final decision.

Lysekil is divided on the issue. The same conflict of objectives must now be handled by the government. New and long-term jobs in a time of gloomy labor market prospects are set against the Paris Agreement and Sweden's climate target to significantly reduce carbon dioxide emissions.

At the same time, it is important to emphasize that the government decision to be made is an administrative decision where the government, just like the Land and Environmental Court, makes the decision on the basis of the Environmental Code and EU law. The government is thus not free to make a decision based on what it could possibly think of the matter. A decision must be in accordance with the Environmental Code.

The Land and Environmental Court considers that there is no legal basis in the Environmental Code to stop Preemraff's plant with reference to carbon dioxide emissions. An important explanation here is that carbon dioxide emissions are part of the EU emissions trading system.

When the government and environment and climate minister Isabella Lövin announced last year that the government would take over the permit issue regarding Preem's new facility, she pointed out, among other things, that the Riksdag adopted a climate policy framework with new climate targets and a climate law. "Ultimately, it is about the government having room for maneuver to reach Parliament's decided climate goals," Isabella Lövin wrote in a press release.

But the Climate Act contains only guidelines for the government's climate policy work. According to the Land and Environmental Court, it has no legal effect when examining individual activities, such as Preem's expansion in Lysekil. For this to happen, the Riksdag would have had to rewrite the Environmental Code, but this has not happened.

Thus, it seems, at least on the grounds of the Land and Environmental Court, that the government has a limited scope to do anything other than follow the court's opinion.

Now the lawyers of the Government Offices will review the opinion before the government decision to be made. If these lawyers interpret the Environmental Code in a way other than the Land and Environmental Court, the government can say no to the new refinery. Otherwise, the government will most likely say yes, but with stricter requirements.

Most of them then argue that the government will surround such a decision with stricter requirements and restrictions, not least for political reasons of the Environment Party. When the government makes its decision, there is a certain scope for political considerations, but the decision must still remain within the framework of the Environmental Code.

However, the question is whether the Environmental Party can, for political reasons, come up with a government decision that gives Preemraff a clear sign, even if it would be surrounded by tougher environmental requirements. The party has received many blows in the government position and it would be extremely difficult for the party to participate in a government decision which, after all, means greatly increased carbon dioxide emissions for many years.

No matter what, it is far from certain that a government decision will be the end point for this process. The case may be subject to continued legal review. Two scenarios are possible.

A government decision may be appealed to the Supreme Administrative Court to be subject to so-called legal review, ie if the decision is valid in legal terms. The Land and Environmental Court can also, following the government's decision, make the assessment that it is problematic in relation to EU law and thus refer the matter to the European Court of Justice.

In both cases, this issue can then extend further over time.