In a landmark decision that will become case-law, last Tuesday Section IV of the Supreme Administrative Court published Sentence No. 2635/2023, rejecting SACE’s appeal against the Lazio-Rome first instance Administrative Court’s May 2022 ruling that had recognised ReCommon’s right to have access to internal documents related to the evaluation and financing of two gas mega-projects in Mozambique by Eni and TotalEnergies. This is the first time in Italy that a final ruling of the administrative justice system has sanctioned the right of citizens to obtain environmental due diligence conducted by a public financial institution on specific operations, stating that the mere existence of confidentiality agreements defined during the engagement phase with its technical consultants cannot be opposed as a limitation to the exercise of environmental access legislation.
The projects in question were also financed by Italy’s export credit agency SACE and public investment bank Cassa Depositi e Prestiti (CDP). In 2017, SACE granted a USD 700 million guarantee in favour of Eni as part of the offshore Coral South FLNG project. The project was completed and became operational at the end of 2022.
Then in 2019, again SACE issued a financial guarantee on loans amounting to USD 950 million, including one from CDP, to cover payment for the work of Saipem, one of the three main EPC contractors on Total’s Mozambique LNG project. Construction work was suspended in April 2021 due to force majeure invoked by Total, following the uprising of armed groups in the Northern Mozambique region and the subsequent internal war that left thousands dead and nearly one million displaced.
The Lazio-Rome first instance Administrative Court had ordered SACE to deliver the documents requested by ReCommon within thirty days, failing which an ad acta commissioner would have to intervene to remedy the situation. However, the ECA had appealed to the Council of State requesting the suspension of the first instance court’s ruling, but in November 2022 the Supreme Administrative Court had rejected this request. Faced with SACE’s continued non-compliance with the court’s prescription, ReCommon called for the appointment of a Commissioner by the administrative court, a request that was granted on January 17th, despite the agency’s umpteenth opposition. ReCommon has still not received any documentation from the appointed prefectural Commissioner.
Tuesday’s ruling by the Supreme Administrative Court puts an end to the long legal dispute by giving ReCommon a definitive right and emphasising that SACE can only black out sensitive names of persons in the documents to be delivered. All that remains now is to wait for the Commissioner or SACE itself to act promptly in accordance with the law. And so, finally, we will know why the agency so tenaciously did not want ReCommon and Italian citizens to see these documents. To date, SACE has denied that it is in possession of a specific assessment of the climate impacts of the Mozambique LNG project carried out by consultant Wood MacKenzie, in contrast to what has been made public by the export credit agencies of the United Kingdom and the Netherlands, which are also involved in financing the project.
«The decision of the Supreme Administrative Court is all the more important as Total may decide to reactivate the Mozambique LNG project in the coming months and the lenders will have to confirm their support», comments ReCommon. «It is legitimate for Italian taxpayers to wonder on what basis and evaluations SACE and CDP consider that the project does not harm the local populations, the environment and the climate, or whether instead their involvement should be permanently ended to prevent further disasters», the association adds.
Looking to the future, the Council of State’s ruling is also an important warning for SACE itself and all other public and private financial institutions, including CDP, Intesa Sanpaolo and UniCredit, which might consider financing a project that is equally controversial due to its impacts on the climate, environment and people’s lives in the area: Eni and ExxonMobil’s Rovuma LNG.
