Environmental Impact Assessment
of public and private projects
EIA Directive 85/337/EEC
as amended by 97/11/EC
and 2003/35/EC
Cohesion Fund Workshop
24-25 February 2005, Prague
Laura Tabellini, David Aspinwall
European Commission
DG Environment – Unit D3
Relevant Directives
• Directive 85/337/EEC of 27 June 1985
• Directive 97/11/EC of 3 March 1997
amending Directive 85/337/EEC
• Directive 2003/35/EC
alignment to UNECE Aarhus Convention
! To be transposed by 25 June 2005
Cohesion Fund Workshop - Prague, 24-25 February 2005 2
(Art. 2.1)
General objective
What does the EIA Directive apply to?
• projects likely to have significant effects on
the environment (by virtue, inter alia, of their
nature, size and location)
What are these projects subject to?
• a requirement for development consent
• an assessment of their effects
When?
• before consent is given
Cohesion Fund Workshop - Prague, 24-25 February 2005 3
(Art. 3)
What assessment?
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
Cohesion Fund Workshop - Prague, 24-25 February 2005 4
(Art. 4)
What projects?
• Annex I Mandatory
projects EIA
• Annex II Screening
projects by Competent authorities
to decide if
EIA needed or not
Cohesion Fund Workshop - Prague, 24-25 February 2005 5
Some examples of projects
ANNEX I ANNEX II
• Long-distance railway lines • Construction of railways and
• Motorways, express roads, roads not included in Annex I
roads of four lanes or more • Waste disposal installations
(of at least 10Km) and waste water treatment
• Waste disposal installations plants not included in Annex I
– for hazardous waste • Urban development
– for non hazardous waste projects
(above 100 tonnes/day) • Changes or extensions of
• Waste water treatment plants Annex I and II projects that
(above 150000 p.e.) may have adverse
• [after June 05 - changes or environmental effects [after
extensions of Annex I projects June 05 – modifications not
meeting Annex I thresholds] included in Annex I]
• …. • ….
Cohesion Fund Workshop - Prague, 24-25 February 2005 6
… and some EIA terminology
• Competent authorities
Decide on development consent applications.
Are not necessarily environmental authorities.
• Environmental authorities
Have specific environmental responsibilities. Are
consulted by competent authorities.
• Environmental information
Submitted by developers to competent
authorities. Sometimes called « environmental
report », « environmental statement », or
« environmental study »
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EIA procedure
Only for Annex II
Screening
projects
Upon request of
Scoping
the developer
Environmental information The “Report”
Consultation on Public, Env.
environmental information Authorities...
Takes account of
Decision env.inf and
consultations
Cohesion Fund Workshop - Prague, 24-25 February 2005 8
(Art. 4)
Screening – what is it?
Screening • Answers the question: is EIA
required? (Annex II projects)
Scoping
• The guiding principle: are
significant environmental
Env. info
effects likely?
Consultation If yes EIA needed
on env.info
If no no EIA needed
Decision
Cohesion Fund Workshop - Prague, 24-25 February 2005 9
(Art. 4)
Screening – how?
Screening
• Determination through:
– Case by case examination
and / or
Scoping – Thresholds or criteria
Env. info
• Annex III criteria must always
be taken into account
Consultation avoid “salami slicing”!
on env.info
• Screening determination made
Decision
available to the public
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(Art. 4)
Annex III criteria
• Project characteristics
Screening
– size, cumulation with other projects, natural
resources use, waste production, pollution,
Scoping risk of accidents …
• Project location - environmental
sensitivity of area likely to be affected
Env. info
– land use, natural resources, Natura 2000
sites, exceeded environmental standards…
Consultation
on env.info • Potential impact
– extent, transboundary nature, probability,
magnitude, duration, frequency, reversibility...
Decision
Cohesion Fund Workshop - Prague, 24-25 February 2005 11
(Art. 5.2)
Scoping
Screening • Answers the question “what
should be covered by the
Scoping environmental information?”
• Opinion by the competent
Env. info authority
Consultation • By request of developer
on env.info
Decision
Cohesion Fund Workshop - Prague, 24-25 February 2005 12
(Art. 5.2)
Scoping
Screening • Interaction between competent
authority, developer,
Scoping environmental authorities
• Before development consent
Env. info application is submitted
Consultation • Competent authority may
on env.info subsequently require further
information
Decision
Cohesion Fund Workshop - Prague, 24-25 February 2005 13
Environmental (Art. 5)
(Annex IV)
information “the report”
Screening • Project description
• Use of resources, emissions and
Scoping residues (estimate)
• Description of the environment
Env. info likely to be significantly affected
• Likely significant environmental
Consultation
on env.info effects (and forecasting methods)
• Difficulties encountered
Decision
Cohesion Fund Workshop - Prague, 24-25 February 2005 14
Environmental (Art. 5)
(Annex IV)
information “the report”
Screening The following must be covered,
too !
Scoping • Main alternatives and reasons for
the choice taking account of the
Env. info environmental effects
• Cumulative effects
Consultation
on env.info • Short term and temporary effects
• Mitigation measures
Decision
• Non-technical summary
Cohesion Fund Workshop - Prague, 24-25 February 2005 15
Informing and consulting
1. Environmental authorities (Art. 5,6)
(scoping, env.information)
2. Public concerned (Art. 4,6,10)
3. Other Member States affected by the
project (incl. env. authorities and public
concerned in those MSs) (Art. 7,9)
Cohesion Fund Workshop - Prague, 24-25 February 2005 16
Informing and consulting
the public concerned
• Screening determination to be made available
• Public can express an opinion :
– on environmental information
– on the development consent request
• When final decision is taken, public must be
informed of:
– its contents and reasons,
– attached conditions and mitigation measures
– [after June 2005: information about public
participation process]
Cohesion Fund Workshop - Prague, 24-25 February 2005 17
Transboundary consultation
• For projects likely to have significant effects
on the environment of other Member States
• Can be requested by the MS likely to be
significantly affected
• Provision of information on development
consent request and environmental
information (« report »)
• Environmental authorities and public concerned
in the affected MS can express opinions
• Reasonable time-frame
Cohesion Fund Workshop - Prague, 24-25 February 2005 18
Main provisions of
Directive 2003/35/EC
• Definition of public and public concerned:
“public affected, or likely to be affected by, or
having an interest in, the decision making
procedure” , including NGOs. Art. 1(2)
• National defence projects not automatically
excluded from EIA Art. 1(4)
• Strenghtened public consultation provisions:
early in the decision-making procedure, detailed
list of information to be provided, reasonable
time-frames Art. 6(2,3)
Cohesion Fund Workshop - Prague, 24-25 February 2005 19
Main provisions of
Directive 2003/35/EC
• New provisions on public access to a review
procedure Art. 10(a)
• Information provided to the public on the final
decision needs to include information on the
public participation process Art. 9(1)
• Changes or extensions :
– of Annex I projects meeting Annex I
thresholds (if any) in Annex I (22)
– of other Annex I projects, and of Annex II
projects in Annex II (13)
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EIA Guidance
• Please visit the EIA / SEA Homepage:
http://europa.eu.int/comm/environment/eia/
home.htm
• Guidance documents and checklists:
– Screening
– Scoping
– Review
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SELECTED
ECJ CASE-LAW
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European Court of Justice
• The meaning of the EIA Directive is not
static
• Affected by technical development
• Subject to interpretation by the ECJ
– (infringements; references by national courts)
– but need to apply its judgments carefully.
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Role of the Commission
• Guardian of the Treaties
• Infringement proceedings
• Implications for financing
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The Court’s approach
• 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.
• Inconsistencies in the different languages.
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The Kraaijeveld case C-72/95
• “The wording of the directive indicates that
it has a wide scope and a broad purpose.”
– Consistently quoted in subsequent cases by
the Court (eg Bozen, Ireland).
• Uniform interpretation cannot be
determined by one language.
• Some good news: criteria and thresholds
have a role.
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Ireland C-392/96
• Thresholds cannot exclude all projects of a
certain type UNLESS, when viewed as a
whole, they would not be likely to have
significant environmental effects.
• Small-scale projects can have significant
effects on the environment.
• Thresholds are to help in screening, not
exempt classes.
• Cumulative effects of projects must be
taken into account.
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Linster C-287/98
• Individuals can rely on a Directive that has
not been transposed on time.
• National courts are not restricted to the
national law but can use the directive
itself.
• Need for uniform application and principle
of equality require autonomous uniform
meanings for expressions in EC law.
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Italy C-87/02
• MSs have discretion about the methods they
use to specify whether a project is subject to
EIA.
• But this method must not undermine the
Directive’s objective.
• A decision that a project does not require
EIA must contain or be accompanied by all
the information that makes it possible to
check that it is based on adequate screening,
compliant with the Directive.
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Spain C-227/01
• 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.
• 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.
Cohesion Fund Workshop - Prague, 24-25 February 2005 30
Delena Wells C-201/02
• In two (or more) stage consent
procedures, assessment of environmental
effects must be as soon as they can all be
identified and assessed.
• If MSs fail to carry out EIA, they must take
measures to remedy that failure. These
might include the revocation or suspension
of a consent, or compensation if an
individual has suffered harm.
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Practical application
• ECJ and Commission rely on EC law – ie
the Directive, not the national
transpositions.
• In considering difficult cases, such as
many infrastructure projects, reflect on the
approach the Court would take.
• Consider the context and purpose of the
legislation.
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Strategic Environmental
Assessment
Directive 2001/42/EC
Applicable from 21st July 2004
Environmental Assessment
Policies
Plans & Programmes
covered by SEA Directive (2001/42)
Projects
covered by EIA Directive (85/337/EEC & 97/11/EC)
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SEA Directive - Objectives
To provide for a high level of protection of
the environment
To contribute to the integration of
environmental considerations into the
preparation of plans and programmes with a
view to promoting sustainable development.
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What is a plan or programme?
(Article 2)
– prepared and/or adopted by an
authority at national, regional or local
level AND;
– required by legislative, regulatory or
administrative provisions.
Definition includes:
– co-financed by the EC
– modifications.
Cohesion Fund Workshop - Prague, 24-25 February 2005 36
Which plans and programmes
require SEA?
Article 3(2) - plans and programmes that always require
environmental assessment:
(a) 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 85/337/EC.
Cohesion Fund Workshop - Prague, 24-25 February 2005 37
Which plans and programmes
require SEA?
Article 3(2) - plans and programmes that
always require environmental assessment:
(b) which, in view of the likely effect on
sites, have been determined to require
an assessment under Article 6 or 7 of
the Habitats Directive.
Cohesion Fund Workshop - Prague, 24-25 February 2005 38
Which plans and programmes
require SEA?
Article 3(9) - Exemptions:
– National defence, civil emergency,
financial or budget plans/programmes
– Structural Funds Regulations (inc
EAGGF) for current programming period
2000-2006/7
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Structural & Cohesion
Funds post-2006
• National framework document on a national
development strategy.
• Operational Programmes.
• COM(2004) 492 final
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Evaluation
• Improve quality, effectiveness and
consistency
• Strategic objectives of the Community
• Structural problems
• Take account of needs of sustainable
development and EIA and SEA legislation.
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Points to watch
• Scoping stage
• Environmental report (content, nature)
• Consultation
• Monitoring
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EU Guidance
"Implementation of Directive 2001/42/EC
on the assessment of certain plans and
programmes on the environment“
European Commission, 2003
(http://www.europa.eu.int/comm/environm
ent/eia/home.htm)
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Guidance (2)
On SF ex ante evaluation:
• http://www.europa.eu.int/comm/environme
nt/ eia/sea-guidelines/handbook-full-text-
part1.pdf
• Environment & sustainable development.
A Guide for the ex ante evaluation of the
environmental impact of regional
development programmes (1999).
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Thank you
for your attention!
Cohesion Fund Workshop - Prague, 24-25 February 2005 45