A well-conducted impact assessment leads to an improvement of the project for nature, people as well as the economy

Category: EIA
Interview with J&E Environmental Assessments Topic Leader and J&E Chairman Siim Vahtrus

Starting from this year J&E has a broader approach to environmental assessments than it had earlier. In addition to environmental impact assessment (EIA) and appropriate assessments (AA, assessments related to Natura 2000 areas), it now also stands for better quality and transparency of strategic environmental assessments (SEA) and assessments required under the Water Framework Directive.

Why is it important to tackle these four types of environmental assessments together? 

Although the rules for these assessments are written into different directives with different level of detail, at their core they are all similar tools, designed to integrate the precautionary principle in decision-making on plans and projects that may affect the environment. Due to their similar aims, they all share similar basic requirements that need to be fulfilled in order to make them successful tools. For example, availability of baseline data, skills and objectiveness of experts involved, meaningful inclusion of other authorities, environmental NGOs and wider public, successful integration of environmental concerns in final decisions are needed for all four types of assessments. As some of the assessment types are “more developed” in terms of rules and case-law, dealing with them in a holistic manner enables us to transfer good experiences from one assessment type to the other.

Recently J&E submitted a complaint to the EC for EU member states’ systemically breaching their obligations of impacts assessments leading to projects harmful to the nature and well-being of people. Earlier this year J&E has drawn European Commission’s attention to specific weaknesses of environmental impact assessments based on the transposition process of EIA directive in 2016 and 2017. Why countries fail to meet the requirements of impact assessments?

In many cases it is a question of political priorities. Especially in the eastern Member States, environmental concerns are sometimes seen as an obstacle to economic development, also by authorities, and therefore laws are applied as little as possible. This is, of course, a false premise, as if you also take into account the externalities or so-called “hidden costs” of environmental degradation, a well-conducted impact assessment will in most cases lead to an improvement of the project for nature, people as well as the economy.

According to your experience and surveys that J&E has undertaken, what are the main issues that incorrectly implemented or sometimes completely missed EAs, cause to the environment and people’s well-being?

In general terms such omissions lead to higher emissions and pollution of the environment. As a more specific example, in Western and Central Europe air quality in urban areas is a critical public health issue, leading to a significant decline in quality of life, lowering life expectancy and thereby creating also economic losses. If the assessments were correctly carried out, they would undoubtedly lead to solving this problem more quickly than the “business-as-usual” model. Another example is the ongoing loss of biodiversity, especially outside the protected areas, but also sometimes within the Natura 2000 network.

Would you name good examples in EU members for other countries to follow?

As regards EIA, there are quite a few good examples, we just recently gathered and published in a separate study. For example, in Slovakia and Estonia, the scoping phase (where it is decided how and what will be addressed in the EIA report) is carried out as a public decision-making process. In some countries, there are thorough reviews of EIA reports (e.g. Czech Republic, Slovenia until 2008), in others there are detailed requirements on experts carrying out the assessments (Slovenia, Estonia). However, at the moment, it is hard to find a “perfect” example - this could only be created by combining the best practices currently found in different countries.

What can the four different types of assessments learn from each other?

In short: quite a lot. EIA as the “oldest” regulation is the most detailed one and therefore a lot could be learnt and taken over from that, including rules on public participation and access to justice. When it comes to the substance of assessments, the appropriate assessments carried out for projects likely to affect Natura 2000 sites, could be used as an example in that it requires the assessments to address all aspects of the plan or project and do so based on best available scientific knowledge. These criteria would seem quite obvious for other assessments too, but have yet to be provided by Directives or case-law of the EU Courts.

What is EU doing to address the issues of EAs?

The biggest step in last years was the revision of the EIA Directive, which included a number of positive changes, e.g. providing a minimum public consultation period on EU level, requiring that experts used by the developer are independent and qualified etc. Now it needs to be ensured that the changes in Directive “trickle down” to practice in all Member States. The Habitats Directive has not been changed lately, but efforts are underway to share best practices and use other “soft” tools to improve practice in Member States. As the Białowieża case demonstrated, in extreme cases, the Commission is willing to turn to the Court of Justice of EU too. As regards SEA and WFD, these instruments are currently under review and hopefully serious efforts to improve their implementation will be made at the very least.

Further this year J&E plans to carry out studies on the application of SEA Directive and WFD assessments. How many and which countries are covered by the studies?

J&E’s main focus on EU level in 2018 will be on two legal instruments currently under review, i.e. the SEA Directive and Water Framework Directive, art 4(7) of which also provides for assessment of impacts as regards projects that may harm the status of water bodies. In relation to that there are two studies underway right now in JE application of SEA Directive and WFD assessments.  The study on application of SEA Directive covers 8 countries: Austria, Bulgaria, Croatia, Estonia, France, Hungary, Slovakia, Slovenia. The study on WFD and the rules on so-called applicability assessments covers 7 countries: Austria, Slovakia, Slovenia, Hungary, Estonia, Croatia and Bulgaria.

Which are the initial results?

Initial results show that the application practice is very divergent. As always there are some good and some bad practices in each and every Member State. However, the degree of divergence in rules itself may be a problem both from the viewpoint of investors and developers as well as the public affected, as it means the protection of citizens nor the conditions for businesses is equal.

The story was first published in J&E Newsletter Network News, Issue 2018/2, 24th May 2018.


Related content:

Environmental Assessments topic work during past years and plans for 2018 in Justice and Environment.

Complaint to the Commission on illegal practice of environmental assessments in Bulgaria, Romania and Slovakia (May 2018)

Justice and Environment publications on Environmental Impact Assessment