Doing Business in Türkiye: Environmental law

Sanctions

Any activity which results in polluting the environment may incur sanctions under the Environmental Law. To underline the importance of prevention, the Environmental Law further restricts any direct or indirect emission, containment, transportation, or removal of waste or debris in contradiction with technical standards issued by the Ministry of Environment for each type of waste or debris. In the event of a pollution related risk all parties involved are required to take whatever necessary precautions to prevent the pollution. Governmental authorities may require relevant individuals or corporations to suspend, either on a temporary or permanent basis, activities which are in breach of the Environmental Law. Activities which are in breach of the Environmental Law may also result in administrative fines.

If the actions resulting in the pollution constitute a crime under the Criminal Code, offenders may be subject to imprisonment for a minimum period of two months up to a maximum of six years plus certain judicial fines may be imposed. The minimum duration of imprisonment may be increased depending on the conditions specific to the case. Actions which do not violate the Environmental Law but result in pollution are also punishable by administrative fines levied by the municipalities under the Law on Misconduct.

Environmental permits and assessments

Green-field investments have two major environmental compliance components: (i) the environmental impact assessment and (ii) the environmental permit.

Environmental impact assessment

Turkish law categorizes investments into two different environmental risk profiles each with a different environmental approval process. The first category includes projects that are likely to have significant adverse effects on the environment and requires an environmental impact assessment report. The report must analyze the impact of the project with respect to nature (for example, water, soil, air, noise and the natural habitat of wildlife) as well as with respect to the impact on the architectural and archeological heritage of the environment. After a process of review by special committee and public consultation meetings, the Ministry of Environment or the relevant Provincial Directorate, if assigned by the Ministry of Environment, issues an “Environmental Impact Assessment Affirmative” or “Environmental Impact Assessment Negative” decision.

Both types of decisions are deemed administrative acts and any third party whose interests are harmed by such an administrative act may request a stay or revocation of the decision from the competent administrative court.

The second environmental risk category includes projects that are not anticipated to have a substantial impact on the environment. Investments within certain safe harbors for example, projects on condensation or gasification of hard coal or bituminous materials with a capacity of 500 tons per day) fall into this second category. The assessment procedure for these projects, which is less burdensome than the environmental impact assessment process, involves project owners preparing and filing a “project file” with the Ministry of the Environment. The Ministry of the Environment will determine whether an Environmental Impact Assessment process should be commenced. If the Ministry of Environment issues an “Environmental Impact Assessment Not Necessary” decision the project may be carried out without further assessment. However, if it issues an “Environmental Impact Assessment Necessary” decision the longer process described above is triggered.

Once a project is approved, the Ministry of Environment monitors the development of the project to ensure that it continues to be duly compliant with commitments made under the “Environmental Impact Assessment Report” or “project file.” The project sponsor must submit periodical monitoring reports covering the construction, operation and post-operation phases of the project.

In case of any capacity increase, the process described above should be taken into consideration depending on the amount of increase.

Environmental permit and license

The environmental permit is the Ministry of Environment’s tool to monitor an investment’s environmental compliance after the project commences operation in full capacity. The term “operating in full capacity” has different meanings depending on the type of project. For instance, for a power plant operating in full capacity means commencement of power generation for commercial purposes in line with the installed capacity amounts provided in the power plant’s power generation license.

The environmental permit may comprise compliance standards that change depending on the type and nature of the investment. Permits may, for example, contain compliance standards relating to air emissions, wastewater discharge or noise pollution. The permit would also include compliance standards relating to waste treatment if the investment has features relating to hazardous waste. The license addresses the technical sufficiency of the applicant facility.

Once an investment commences operations, the Ministry of Environment grants a one-year term to investors to obtain the environmental permits. During this term, the investment operates under a temporary operation certificate which is a substitute for the environmental permit. Commencing operations in the absence of a temporary operation certificate is illegal and subject to temporary or permanent suspension of operations and a monetary fine.

Other environmental regulations

Alongside the environmental impact assessment and the environmental permit, the environmental compliance regime has many other standards which must be adhered to at all times. The most important standards are those relating to waste management (for example, hazardous waste, oil waste, domestic waste and package waste).

The Omnibus Law on the Establishment of the Turkish Environment Agency and Amendments to Certain Laws, entered into force on December 30, 2020, established the Turkish Environment Agency. The Environment Agency is responsible for (i) preventing pollution, (ii) contributing to the protection, improvement and development of green areas, (iii) increasing resource efficiency in terms of circular economy and zero-waste initiatives and (iv) carrying out activities for the establishment, monitoring and audit of a national deposit-return management system for all sorts of items including glass and PET bottles, as well as plastic and metal packaging. The Environment Agency is subject to private law and therefore regulates the relations in this sphere between individuals under civil law, contract law, commercial law, private international law and the code of obligations.

The Regulation on Environmental Management Services, entered into force on November 1, 2022 to regulate the qualifications, obligations and working principles and procedures of personnel, environmental management units and environmental consultancy firms providing environmental management services, application for certificates of competency and the assessment process, audit, suspension and cancellation of the same. With the Regulation on Environmental Management Services, (i) companies listed under 64 Annex-1 of the Regulation on Environmental Permits and Licenses, which are considered as companies with high level of pollution effect on the environment, are obliged to establish an environmental management unit by obtaining a certificate of competency or outsource environmental management services from environmental consultancy firms; and (ii) companies listed under Annex-2 of the Regulation on Environmental Permits and Licenses, which are considered companies with pollution effect on the environment, are obliged to permanently employ staff or establish an environmental management unit by obtaining a certificate of competency or outsource environmental management services from environmental consultancy firms. Accordingly, the liabilities of the companies shall not be removed and they shall continue to be liable with the relevant staff, environmental management unit or environmental consultancy firms.

With the enactment of the Regulation on Contaminant Emission and Transfer Register published in the Official Gazette, dated December 4, 2021, a publicly available electronic database was established to provide for prevention and decrease of pollution. Accordingly, companies operating in the fields listed under Annex-1 of the said Regulation (that is, energy, metal production and processing, mineral/mining industry, chemical industry) shall register with this system within the dates set forth under the Regulation.

A new Regulation on Environmental Noise Control was published on November 30, 2022. This Regulation aims to prevent the negative effects of environmental noise on environment and human health, implementation of noise control precautions to decrease the environmental noise and inform the public regarding the actions taken for the management of environmental noise. The Regulation covers industrial plants, transportation hubs, music-playing establishments, sea vehicles, construction sites, and other outdoor activities that may cause environmental noise and introduces restrictions such as time limits, permission requirements and constant monitoring for the mentioned activities.

According to the Regulation, the Ministry of Environment, Urbanization and Climate Change primarily sets forth the policies regarding the minimization of environmental noise and works in cooperation with other institutions and organizations to ensure the implementation of the Regulation. The Regulation also urges local administrations to implement the Ministry’s policies under their jurisdictions through Provincial Local Environment Boards. The Regulation also appoints the Ministry of Culture and Tourism to take necessary precautions to protect natural and historical landmarks from environmental noise and vibration.

A new Regulation on the Control of Waste Electrical and Electronic Equipment was published on December 26, 2022. This Regulation introduces new obligations on producers to reduce the total environmental impact of a product by adopting the principle of extended producer responsibility, which places the responsibility for the entire lifecycle of the product, and in particular for take-back, recycling and final disposal, on the producer. The obligations on the producer include: (i) designing and manufacturing durable, long-lasting, repairable, reusable and improvable products by developing sustainable production and consumption models for the efficient use of resources; (ii) registering with the Ministry's system on electrical and electronic goods and to update the information in the said system in case of any change regarding the manufacturer and submitting the information or documents requested through the same system until the end of March of each year; and (iii) prioritizing the use of recycled materials, especially in new design products, if technically feasible.