Jerzy Jendrośka Environmental assessments and public par8cipa8on in the European Union and in the EECCA countries in the light of interna8onal standards Interna8onal Symposium on Public Par*cipa*on and Access to Jus*ce in Environmental Ma8ers 3-4 November 2016 Osaka Jerzy Jendrośka 1
Content Origins and development of environmental assessments Interna8onal legal framework The interplay between environmental assessments and public par8cipa8on Key conceptual differences between UNECE standards and OVOS/exper8za systems Responsibility for public par8cipa8on in EU Public par8cipa8on in OVOS/exper8za systems Project proponents/developers in public par8cipa8on issues of concern Prac8cal solu8ons Conclusions Jerzy Jendrośka 2
Origins and development of environmental assessment US Na8onal Environmental Policy Act of 1969 covers: plans, programs, policies, legisla8ve proposals, concrete projects key role of discussing alterna8ves concept of 8ering Currently in all developed environmental na8onal frameworks Jerzy Jendrośka 3
Environmental asessment in interna*onal law - general principles General principles of interna8onal law Trail Smelter case - arbitra8on tribunal Nagymaros-Gabcikovo case ICJ Pulp Mill case - ICJ UNEP Goals and Principles of Environmental Impact Assessment of 1987 Rio Declara8on on Environment and Development 1992 Integra8on principle Principle 4 Environmental Assessment Principle 17 Responsibility for transboundary environmental damage - Principle 2 Transboundary procedure (Principles 18 and 19) Jerzy Jendrośka 4
Environmental assessment in binding interna*onal law Global trea8es mostly agreements concerning use of natural resources 2 specific agreements in UNECE: Conven8on on Transboundary EIA (Espoo) 1991 SEA Protocol of 2003 Protocol under Teheran Conven1on Role harmoniza8on of na8onal procedures transboundary procedure Jerzy Jendrośka 5
Development of legal framework in Europe EU EIA Direc8ve 1985 impact of projects UNECE Espoo Conven8on 1991 transboundary impact of projects UNECE Aarhus Conven8on 1998 access to informa8on, publci par8cipa8on in decisionmaking and access to jus8ce in environmental maaers EU SEA Direc8ve 2001 impact of plans and programs UNECE Kiev SEA Protocol 2003 - transboundary impact of plans and programs Jerzy Jendrośka 6
Public par*cipa*on in EIA/SEA Mandatory element in EIA/SEA but apply much broader than EIA/SEA! EIA or SEA not always required with public par8cipa8on Synergy with Aarhus Conven8on EIA and art. 6 SEA and art.7 Public par8cipa8on and access to jus8ce Jerzy Jendrośka 7
Concept of UNECE Espoo and Aarhus Conven*ons Based on Western EIA concept designed for market economy assuming well established development control Procedural and process oriented Obliga8ons put on authori8es Jerzy Jendrośka 8
Concept of OVOS/exper*za in EECCA countries Tradi8ons of OVOS/exper8za systems in Eastern Europe, the Caucasus and Central Asia Designed for centrally planned economy Substance oriented Two separate stages and legal regimes OVOS - responsibility of developer Exper8za - responsibility of environmental agencies Jerzy Jendrośka 9
Key conceptual differences Legal character of environmental assessment Procedural (interna8onal standard) Substan8ve (OVOS/exper8za) Done by Authority competent to make a decision Technical experts Role of EIA/SEA report in the assessment One of the elements of the assessment Document summarising results of assessment Jerzy Jendrośka 10
Defini*on of EIA in UNEP Goals and Principles EIA means an examina8on, analysis and assessment of planned ac8vi8es with a view to ensuring environmentally sound and sustainable development. Jerzy Jendrośka 11
Defini*on of EIA in Espoo Conven*on Under Art.1 (v) of the Espoo Conven8on environmental impact assessment means: na1onal procedure for evalua1ng the likely impact of a proposed ac1vity on the environment Jerzy Jendrośka 12
Defini*on of EIA in EU EIA Direc*ve environmental impact assessment means a process consis8ng of: (i) the prepara8on of an environmental impact assessment report by the developer (ii) the carrying out of consulta8ons. (iii) the examina8on by the competent authority of the informa8on presented in the environmental impact assessment report and any supplementary informa8on provided, where necessary, by the developer, and any relevant informa8on received through the consulta8ons ; (iv) the reasoned conclusion by the competent authority on the significant effects of the project on the environment, taking into account the results of the examina8on referred to in point (iii) and, where appropriate, its own supplementary examina8on; and (v) the integra8on of the competent authority's reasoned conclusion into any of the decisions referred to in Ar8cle 8a. Jerzy Jendrośka 13
Defini*on of EIA in Belarus law on ecological exper*za of 2009 "Environmental Impact Assessment" means iden8fica8on of possible environmental impact of expected changes in the environment due to implemen8ng proposed project decisions during the development of project documenta8on as well as predic8on of its state in the future in order to take decisions concerning possibility or impossibility of project decision implementa8on; Jerzy Jendrośka 14
Defini*on of EIA Report in Belarus law on ecological exper*za of 2009 "Report on environmental impact assessment" means a component of project documenta8on on planned economic and other ac8vity (hereinaoer, unless otherwise specified, - project documenta8on), containing informa*on with respect to the findings of Environmental Impact Assessment and measures required to mi8gate and/or prevent predicted changes in the environment; Jerzy Jendrośka 15
Responsibility for public par*cipa*on in EU Competent authority Authority competent to permit specific ac8vity Authority competent to prepare/adopt strategic document Local authori8es in case of ac8vi8es with local impact but permiaed by other authori8es Foreign authori8es in case of transboundary impact Specialised bodies Role of private actors and developers Statutory division vs delega8on of tasks Jerzy Jendrośka 16
Role of private actors Private actors involved in public par8cipa8on EIA consultants SEA consultants NGOs Specialised private firms (nego8ators) Pros Expert knowledge Experience with public par8cipa8on Cons Approach ooen depends on who hires them Jerzy Jendrośka 17
Public par*cipa*on in OVOS/ OVOS stage responsibility of the developer exper*za system in prac8ce done by EIA consultants no clear procedures for no8fica8on and hearings limited availability of EIA documenta8on in prac8ce rather propaganda than par8cipa8on Exper8za only non-mandatory public exper8za no public consulta8on in prac8ce no clear requirement to take into account outcomes of public par8cipa8on Jerzy Jendrośka 18
Project proponents/developers in public par*cipa*on issues of concern Role of art.6 para 5 of the Aarhus Conven8on vs mandatory public par8cipa8on Interested in promo8ng the project therefore by defini8on not objec8ve! Experience Manipula8ons with defining the public concerned Inacurate performance of procedural obliga8ons Biased approach towards public comments Special situa8on with public authori8es Being developers Being promoters Jerzy Jendrośka 19
Opinions of ACC and Espoo IC it is implicit in certain provisions of ar8cle 6 of the Conven8on that the relevant informa8on should be available directly from public authority, and that comments should be submiaed to the relevant public authority (ar8cle 6, paragraph 2 (d) (iv) and (v), and ar8cle 6, paragraph 6) and therefore reliance solely on the developer for providing for public par8cipa8on is not in line with these provisions of the Conven8on (Aarhus CC -ECE/ MP.PP/2008/5/Add.6, para. 78; see also ECE/MP.PP/ 2011/11/Add.2, para. 77) the organiza8on of public par8cipa8on under the Conven8on was the responsibility of the competent authority6 and not of the proponent (Espo IC - (ECE/ MP.EIA/IC/2010/4, para. 19 (b)) Jerzy Jendrośka 20
Prac*cal solu*ons Criteria for delega8ng responsibility Impar8ality Not represen8ng any interests related to the decision Specialisa8on or vast experience with public par8cipa8on Proximity to public concerned Role of developers Paying for costs of public par8cipa8on Involvement into some ac8vi8es under the control of competent authority Jerzy Jendrośka 21
UNECE Maastricht Recommenda*ons Delega8ng tasks in a public par8cipa8on procedure - paragraphs 27 36 Encouraging developers to engage with the public concerned before applying for a permit (ar8cle 6, paragraph 5) - paragraphs 82 84 Annex - table Jerzy Jendrośka 22
Conclusions Conceptual dicrepancy between OVOS/exper8za systems and requirements of the UNECE Espoo Conven8on and Aarhus Conven8on Risk of repeated cases at the Espoo Implementa8on Commiaee and Aarhus Compliance Commiaee Need for systemic approach Lessons for other regions Jerzy Jendrośka 23
General Guidance General Guidance on enhancing consistency between the Conven8on and environmental impact assessment within State ecological exper8se in countries of Eastern Europe, the Caucasus and Central Asia, which was adopted by the Mee8ng of the Par8es to the Conven8on on Environmental Impact Assessment in a Transboundary Context (ECE/MP.EIA/2014/2). Jerzy Jendrośka 24