ENVIRONMENTAL ASSESSMENT (SEA & EIA) JUDr. Vojtěch Vomáčka, Ph.D., LL.M. Basics of EU Environmental Law 1 November 2023 logo F:\vojtech\Pictures\Obrázky\logo katedry\logoENG.gif Masarykova univerzita - Home | Facebook EIA/SEA EIA is “the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals or projects prior to major decisions being taken and commitments made.” (www.unesco.org) ”SEA is a systematic process for evaluating the environmental consequences of proposed policy, plan or programme initiative in order to ensure they are fully included and appropriately addressed at the earliest appropriate stage of decision making on par with economic and social consideration” (Sadler,Verheem 1996) Historical/international perspective §US National Environmental Protection Act (1969) §EIA Directive (1985) §UNEP Guidelines Goals and Principles of EIA (1987) §Espoo Convention (adopted in 1991 – into force in 1997) §Rio Declaration on Environment and Development (1992) §1st amendment to the EIA Directive (1997) §Gabčíkovo -Nagymaros Project (ICJ ruling in 1997) §Aarhus Convention (adopted in 1998 – into force in 2001) §SEA Directive (2001) §SEA Protocol to Espoo (adopted in 2003 – into force in 2010) §Pulp Mills case (ICJ ruling in 2010): EIA attains customary international law §2nd and 3d amendments to the EIA Directive (2003 and 2009) §EIA codified (2011) §Revised EIA Directive (2014) §Evaluation of the SEA Directive (ongoing) § § Impact assessment? •International law – Customary law, Espoo convention (transboundary assessment)… •EU law – EIA Directive (2011/92/EU), SEA Directive (2001/42/EC), the Habitats Directive •National law http://www.trainweb.org/oldtimetrains/CPR/ships/LandR/smelter.jpg http://news.bbc.co.uk/olmedia/1005000/images/_1009599_czech_republic_new150.gif http://imgs.idnes.cz/zahranicni/A001102_HAS_WULL2_VELKA_V.JPG http://s.wsj.net/media/Micronesia_Prague_Jan_4_E_20100115085406.jpg F:\DATA\grafika\spodek.gif 5 ZÚR ÚP Územní řízení Stavební řízení F:\DATA\grafika\spodek.gif EIA OOP R OOP R SEA SEA Povolení, závazná stanoviska a stanoviska podle zvláštních předpisů (ZOPK, ZPF, LesZ) ZS IPPC (povolení, závazná stanoviska a stanoviska podle některých zvl. Předpisů - , OvzdZ, OdpZ, Vodz, VeřZd) R Výsledek obrázku pro factory picture Řízení o zkušebním provozu Kolaudační rozhodnutí R R F:\DATA\grafika\pruh 5.gif F:\DATA\grafika\spodek.gif Impact assessment? https://www.youtube.com/watch?v=RCg800TYf4k POLICIES, STRATEGIES, LEGISLATION PLANS & PROGRAMMES SEA Directive (2001/42/EC) PROJECTS (PUBLIC - PRIVATE) EIA Directive (2011/92/EU, as amended by 2014/52/EU) Habitats and Birds Directives Water Framework Directive Other Directives: Carbon Capture Storage, Offshore Safety… Industrial Emissions & Seveso Directive Waste Framework Directive Impact Assessment (COM legislative proposals) Landfill Directive Environmental Assessments at EU level EIA/SEA How Where If Why Plans - Programmes Projects SEA EIA EIA - General objective What does the EIA Directive apply to? •projects likely to have significant effects on the environment (by virtue, inter alia, of their characteristics, size and location) What are these projects subject to? •a requirement for development consent •an assessment of their effects When? •before consent is given • EIA must identify, describe, assess likely direct and indirect environmental effects of activities on •human beings, •fauna, flora, soil, water, air, climate, landscape, •material assets, cultural heritage •the interaction between those factors EIA - General objective Cumulative effects & "whole" project – case law §It is necessary to consider projects jointly in particular where they are connected, follow on from one another, or their environmental effects overlap (Case C-147/07, Ecologistas en Acción-CODA; Case C-205/08, Alpe Adria). §It is necessary to take into account the cumulative effect of such projects which have an objective and chronological link between them (Case C-244/12, Salzburger Flughafen). §Works to modify an airport with a runway length of 2 100 metres or more thus comprise not only works to extend the runway, but all works relating to the buildings, installations or equipment of that airport where they may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself. That is the case in particular for works aimed at significantly increasing the activity of the airport and air traffic. (Case C-2/07, Abraham and Others). § F:\DATA\grafika\pruh 5.gif F:\DATA\grafika\spodek.gif Shrnutí minulého semináře F:\DATA\grafika\pruh 5.gif 11 F:\DATA\grafika\spodek.gif Salami slicing http://hips.htvapps.com/htv-prod-media.s3.amazonaws.com/ibmig/cms/image/wyff/34201516-34201516.jpg 12 Spain C-227/01 - Valencia-Tarragona railway line, Las Palmas-Oropesa section F:\DATA\grafika\spodek.gif ▪ http://upload.wikimedia.org/wikipedia/commons/4/4e/Euromed_Barcelona-Alicante_entrando_en_la_estaci %C3%B3n_de_Tarragona.jpg 13 Spain C-227/01 - Valencia-Tarragona railway line, Las Palmas-Oropesa section ▪Annex I point 7 must be understood to include the doubling of an existing track, and not a mere modification. ▪That the case concerned a short section of a long distance route is not relevant: If the argument of the Spanish Government were upheld, the effectiveness of Directive 85/337 could be seriously compromised, since the national authorities concerned would need only to split up a long-distance project into successive shorter sections in order to exclude from the requirements of the Directive both the project as a whole and the sections resulting from that division. ▪The new track would obviously create significant new nuisances, so no need to prove the existence of concrete negative effects – likelihood is sufficient. ▪Note: this case pre-dates amendments by Directive 97/11. ▪ F:\DATA\grafika\spodek.gif EIA - Which projects? • •Annex I projects • • •Annex II projects • Mandatory EIA • Screening by Competent authorities to decide if EIA needed or not EIA - examples ANNEX I •Long-distance railway lines •Motorways, express roads, roads of four lanes or more (of at least 10Km) •Waste disposal installations –for hazardous waste –for non hazardous waste (above 100 tonnes/day) •Waste water treatment plants (above 150000 p.e.) •[+ changes or extensions of Annex I projects meeting Annex I thresholds] •…. ANNEX II •Construction of railways and roads not included in Annex I •Waste disposal installations and waste water treatment plants not included in Annex I •Urban development projects •Changes or extensions of Annex I and II projects that may have adverse environmental effects •[+ modifications not included in Annex I] •…. A white paper with black text Description automatically generated Level of thresholds - case law §Member States have a level of discretion to establish thresholds or criteria, BUT limited by the obligation (Art 2(1)) to make projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment subject to an impact assessment (C-244/12, Salzburger Flughafen, C-531/13, Kornhuber and Others, paragraph 40-41); §Thresholds/criteria are to help in screening, not exempt classes of projects, UNLESS, when viewed as a whole, they would not be likely to have significant environmental effects – (e.g. C-392/96, Commission v. Ireland, C-66/06, Commission v. Ireland) §Member States are obliged to take account of all the relevant selection criteria listed in Annex III when establishing criteria or thresholds for Annex II projects (C-66/06, Commission v. Ireland, C-255/08, Commission v. Netherlands, C-435/09 Commission v. Belgium, C-531/13, Kornhuber and Others). F:\DATA\grafika\pruh 5.gif F:\DATA\grafika\spodek.gif Impact assessment? https://www.youtube.com/watch?v=0uReVJYe0qw The EIA Procedure after the 2014 amendment Scope and level of detail (optional) Updated Annex IV & quality control Public, environmental authorities, local and regional authorities, other MS & reinforced modalities Takes account of env. report and consultations => content of the decision & reasoned conclusion End of EIA process Scoping Decision (& reasoned conclusion) Information on decision EIA Report Screening (for Annex II projects) Information and Consultation Monitoring Annex II.A information & updated screening criteria listed in Annex III + content of the screening decision For projects with significant and adverse environmental effects New elements in the information of the EIA Report – Annex IV Resource and energy efficiency elements (IV.1 and IV.5). Reasonable alternatives include baseline scenario (IV.2 and IV.3). Consideration of new environmental issues, such as climate change and biodiversity (IV.4 and IV.5). Cumulative impacts (IV.5.e). Risk assessment related to accidents/disasters (IV.8). More thorough description of mitigation/compensation measures, as well as introduction of monitoring (IV.7). Methods/evidence and list of sources used (IV.6 and IV.10). ü ü Scoping EIA report Consultation Decision Information on decision Screening Monitoring NEW elements in Articles 6 and 7 Broadened scope: local and regional authorities clearly spelled out as bodies to be consulted. Reinforced modalities: üPublic to be informed electronically and by public notices (Art.6 (5)) üRelevant information electronically accessible to the public, through at least a central portal or easily accessible points of access, at the appropriate administrative level (Art. 6 (5)) üReasonable time-frames for the different phases of the decision-making (Art. 6(6)). üTime-frame for consulting the public concerned on the EIA report - at least 30 days (Art. 6(7)). §Transboundary consultations: üConsultations may be conducted through an appropriate joint body (Art.7(4)). üTime-frames for public consultation to be set (Art. 7(5)). § ü ü Scoping EIA report Consultation Decision Information on decision Screening Monitoring Case law as a result of: Art 258 TFEU (Commission v MS) actions Art 267 TFEU preliminary references EIA Directive rich case law, both Art 258 and Art 267 TFEU cases on objectives and basic principles, definitions (e.g. 'project', 'development consent'), screening (criteria/thresholds, cumulative effects), public participation and A2J, project categories of Annexes I and II) •The meaning of the EIA Directive is not static •Affected by technical development •The EIA Directive has “a wide scope and a broad purpose” (Kraaijeveld). •Member States’ discretion is limited. •Consistent emphasis on the likely environmental effects of proposed projects. •Exemptions to be interpreted narrowly. SEA Directive ~ 20 rulings so far, almost exclusively Art 267 TFEU mostly on the scope of the Directive Commission support towards a better implementation §Guidance document on streamlining environmental assessments conducted under Article 2(3) of the EIA (Commission Notice 2016/4701, OJ C 273, 27.7.2016, p.1) §Compilation of the CJEU case-law §Interpretation of definitions of project categories of annex I and II of the EIA Directive §Guidance on the three key steps of the EIA: §Screening §Scoping §EIA report §Guidance on the Application of the EIA Procedure for Large-scale Transboundary Projects §Guidance on Integrating Climate Change and Biodiversity into Environmental Impact Assessment üprepared and/or adopted by an authority at national, regional or local level AND ürequired by legislative, regulatory or administrative provisions. => Normative acts adopted by law or regulation are covered (C-290/15)! Exemptions: ûPlans & programmes the sole purpose of which is to serve national defence or civil emergency; ûFinancial or budget plans/programmes. SEA: WHICH plans and programmes? SEA: WHICH plans and programmes? 1. Plans and programmes (P/Ps) that always undergo an SEA are those: prepared for agriculture, forestry, fisheries, energy, industry, transport, waste/ water management, telecommunications, tourism, town & country planning or land use AND which set the framework for future development consent of projects listed in the EIA Directive; which have been determined to require an assessment under Articles 6 or 7 of the Habitats Directive. Including P/Ps co-financed by the EU (e.g. OPs). Modifications of P/Ps. 2. Plans and programmes that must be screened: •P/Ps using small areas at local level. •minor modifications to P/Ps. •P/Ps setting the framework for future “non-EIA projects” and “non-sector” P/Ps. The notion of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment. That interpretation of the concept of ‘plans and programmes’ is intended to ensure that provisions which are likely to have significant effects on the environment are subject to an environmental assessment. The concept of ‘a significant body of criteria and detailed rules’ must be construed qualitatively and not quantitatively. It is necessary to avoid strategies which may be designed to circumvent the obligations laid down in the SEA Directive by splitting measures. Scope of Article 3(1)-(2) – case-law D’Oultremont, case C‑290/15, Inter-Environnement Bruxelles, case C-671/16, Thybaut C-160/17 Scope and level of detail (obligatory) The “Report” (including a non-technical summary) Public, environmental authorities, transboundary procedure (Art.7, and if applicable) Takes account of environmental report and consultations End of SEA process Scoping Decision Information on decision Environmental Report/Study Screening Information and Consultation Monitoring Using screening criteria Significant environmental effects SEA can address a wide range of issues Climate change mitigation Climate change adaptation Biodiversity ·energy demand (industry) ·energy demand (housing & construction) ·GHG emissions in agriculture ·GHG emissions (waste management) ·travel patterns and GHG emissions (transport) ·GHG emissions from energy production ·land use, land-use change, forestry and biodiversity ·… ·heat waves ·droughts ·flood management and extreme rainfall events ·storms and high wind ·landslides ·sea level rise, extreme storms, coastal erosion and saline intrusion ·cold spells ·freeze-thaw damage ·… ·degradation of ecosystem services ·loss of habitats, fragmentation ·loss of species diversity ·loss of genetic diversity ·… Key elements of SEA The Environmental Report •Outline of the plan/programme and relationship with other plans/programmes •Environmental characteristics of the area. •Environmental protection objectives, how they were taken into account. •Mitigation measures (envisaged to prevent, reduce and as fully as possible compensate any significant adverse effects on the environment of implementing the plan or programme). •Monitoring measures. •Non-technical summary (important). Consultation Environmental authorities - in screening - in scoping - on the draft plan/programme and the environmental report The public - on the draft plan/programme and the environmental report Transboundary consultations - on the draft plan/programme and the environmental report SEA Guidance Commission's Guidance on the implementation of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment; Guidance on Integrating Climate Change and Biodiversity into Strategic Environmental Assessment (March 2013); Report from the Commission on the application and effectiveness of the SEA Directive, COM/2009/469; GRDP Handbook on SEA for Cohesion Policy 2007-2013 (Interreg IIIC, GRDP greening regional development programmes). * * * THANK YOU FOR YOUR ATTENTION! vomacka@mail.muni.cz