1. EIA and SEA n n Projects n n covered by EIA Directive n n (85/337/EEC, 97/11/EC Espoo, 2003/35/EC (Aarhus) n n Environmental n n Assessment n n Policies n n Plans & Programmes n n covered by SEA Directive (2001/42/EC)

2. Process for projects n Screen to see if EIA required (is mitigation relevant?). Reasons for not ? n Scope to see what EIS should involve (with NGOs, residents, regulators, interested bodies) n EIS Submitted with application for consent n Consultation (public/ngo’s/ specialist bodies n EIA carried out by Regulator/competent authority taking all info into account

3. Definition of project n n ‘—the execution of construction works or of other installations or schemes, n n —other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources n n Polytunnels in farms?

4. Some examples of projects n n Annex 1 EIA always n n Long-distance railway lines n n Motorways, express roads, n n roads of four lanes or more n n (of at least 10Km) n n Waste disposal installations n n – for hazardous waste n n – for non hazardous waste n n (above 100 tonnes/day) n n Waste water treatment plants n n (above 150000 p.e.) n n Changes or extensions of n n Annex I projects, meeting n n Annex I thresholds EIA above threshold and/or if significant effects n ANNEX II n Construction of railways and n roads not included in Annex I n Waste disposal installations n and waste water treatment n plants not included in Annex I n Urban development n projects n Changes or extensions of n Annex I and II projects that n may have adverse n environmental effects (not n included in Annex I)

5. Kraaijveld – “wide scope and broad purpose” n n Abraham - widening and refurbishing runway n n Ecologistas - refurbishing road = construction n n Horner/Edwards – change of fuel? n n Comm v Spain – doubling rail track n n Akester – bigger ferries in port n n Exemptions to be interpreted narrowly n n (WWF & others C-435/97; Linster C-287/98)

6. Duty of competent authorities n To do “all within the limits of their powers to ensure that the directive is implemented” n Kraaijveldt – huge duty on courts and public authorities in member states. n Irish Supreme Court changes judgment

7. Inadequate transposition n Kraaijveld (thresholds too high) n Commission v Ireland (didn’t take account of cumulative effects or location of projects: small projects can have significant effects) n Commission v Ireland (no planning permission required for certain agricultural activities)

8. Now n nothing is exempted development if EIA or AA could be required for it

9. What is a development consent? n “Consent enabling project to proceed” n Ex p Browne (new mineral permission) n Greenpeace – ancillary consent n Prokopp- not failure to take enforcment action n The consent that dealt with the substantial environmental issues

10. Screening Annex 11 projects n Case by case and/ or thresholds and criteria n Annex 111 criteria must always be taken into account (no salami slicing) n Decision must be available to the public

11. Screening n Decision must be made by properly authorised officer. O’Nuallain v Dublin Corporation n Negative screening must be supported by sufficient reasons Commission v UK Case C495/0 and n n Lotto Zero C-87/00 the screening decision must be accompanied by the information that makes it possible to check that it was based on adequate screening

12. Contents of EIS Art 5(1) n n 1. Description of the project,including in particular: n n —a description of the physical characteristics of the whole project and the land-use requirements during the construction and operational phases, n n —a description of the main characteristics of the production processes,for instance, nature and quantity of the materials used, n n —an estimate,by type and quantity,of expected residues and emissions (water,air and soil pollution,noise,vibration,light,heat,radiation,etc.) resulting from the operation of the proposed project. n n 2. An outline of the main alternatives studied by the developer and an indication of the main reasons for this choice, taking into account the environmental effects. n n 3. A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, water, air, n n 15

13. What must it achieve? n EIA shall identify, describe and assess in an appropriate manner, and in the light of each individual case and in accordance with Articles 4 and 11, the direct and indirect effects of a project on the following factors: n human beings, fauna and flora, n - soil, water, air, climate and the landscape, n - material assets and the cultural heritage and

14. Must analyse effects on n -the interaction between the factors mentioned in the first, second and third indents. n Articles 4 and 11 describe contents and procedures for EIA n Cases on joint consents Commission V Ireland n n “Art 2a. Member States may provide for a single procedure in order to fulfil the requirements of this Directive and the requirements of Council Directive 96/61/EC of 24 September 1996 on integrated pollution prevention and control”.

15. Must identify likely significant effects n Not all effects -just likely effects n Significant – breach of an environmental standard but other tests also. n Competent authorities decide what is significant. Courts will defer to their expertise unless it is patently wrongl

16. Effects on the “environment” n Must be effects on the “big” environment not just on local neighbourhood n Compare Ipswich case in UK and Kenny v An Bord Pleanala in Ireland

17. Cumulative effects n impacts must be considered –Commission v Ireland – Ireland did not take account of cumulative effects of afforestation. –O’Connell v O’Connell motorways –No duty to take account of proposed extension of a road in that case.

18. All effects –O’Nuallain - not just adverse effects –Adverse only for modifications of projects in Annex 2, 13. –Monument to commemorate the millenium in Dublin City centre

19. Objectives of EIA is to ensure n (i) that competent authorities can make their decisions with "full knowledge"of the likely significant environmental effects of any consent given n (ii) having taken into account the results of public participation in the process and n (iii) the views of the bodies (including other Member States when appropriate) required to be consulted. n BEFORE CONSENT IS GIVEN

20. Alternatives considered n Must they be considered? n How extensive is this obligation? n Must the best alternative be chosen? n Corrib gas case (forced alternative). Slane Bridge (alternatives not adequately explored!) n Techniques for forcing choices of alternatives

21. Principles of EU Env Law involved n Enables authorities to take a precautionary approach to new developments likely to have significant environmental effects, n to ensure that environmental damage is rectified at source and n to ensure that the polluter pays for likely adverse impacts on the environment by preventing or mitigating adverse effects.

22. Steps n 1. If EIA required, developer prepares EIS and non technical summary n 2. Can if she wishes, have it scoped by competent authority with or without public consultation n 3. Submits EIS with application for consent n 4. Public and bodies with specific environmental responsibilites and NGOs and (maybe) other Member States must be consulted n 5. Adequacy is assessed by competent authority n 6. Project is assessed having regard to the EIS and the results of the consultation procedure

23. Art 6 Public participation n “early and effective opportunities to participate” n When all options are open n Before the decision is taken

24. Participation by public and NGOs essential n The EIA process must involve the public, authorities with environmental responsibilities and, in cases where the project is likely to have transboundary impacts, other affected Member States, in the consent procedure.

25. Commission v Spain National screening systems must take full account of n n nature, size and location of Annex II projects, with reference to Annex III criteria

26. Must the project be the main project? n No – can be ancillary aspects if they are likely to have significant effects n Commission v Ireland (windfarms case) n No EIA required for windfarms at that time but constructing the windfarm involved making a road up the mountain and displacing peat..

27. Cases on projects n Waddenzee: cockle fishing

28. EIA and the Irish Courts n Lancefort Ltd. v. An Bord Pleanála- company incorporated after decision can seek JR n O’Nuallain v. Dublin Corporation Good and bad effects. Same in UK n Kenny v. An Bord Pleanála n Effects on environment, not just local effects.

29. Maher Again in Maher v An Bord Pleanála [1] [1999] 2 ILRM 198. Again in Maher v An Bord Pleanála [1] [1999] 2 ILRM 198. [1] [1] Kelly J. in the High Court held that weaners and finishers should have been included in the calculation of what was a "pig" for the purposes of deciding if an EIS was required. [1] Kelly J. in the High Court held that weaners and finishers should have been included in the calculation of what was a "pig" for the purposes of deciding if an EIS was required. [1] n An example of a “wide” interpretation of a word in legislation

30. Art 9 Reasons for decisions n n Publication of the content of the decision and any conditions attached thereto, n n - having examined the concerns and opinions expressed by the public concerned, the main reasons and considerations on which the decision is based, including information about the public participation process, n n - a description, where necessary, of the main measures to avoid, reduce and, n n if possible, offset the major adverse effects. n n 2. The competent authority or authorities shall inform any Member State which has been consulted pursuant to Article 7,

31. Must EIA be in writing n YES! Too unsafe not to have it in writing. Corrib gas settlement. n Uncertainty of nature and extent of the duty …

32. Art 10 a n Judicial review of substantive and procedural merits of decisions.

33. SEA n See presentation at http://www.abgs.gov.tr/tarama/tarama _files/27/SC27EXP_EIA%20and%20SEA.pdf

34. SEA for plans and programmes n n – be prepared and/or adopted by an authority at n n national, regional or local level AND n n – be required by legislative, regulatory or n n administrative provisions. n n The definition includes: n n – modifications of plans and programmes n n – those co-financed by the EC

35. Art 3 prepared for agriculture, forestry, fisheries, n n energy, industry, transport, waste/ water n n management, telecommunications, tourism, n n town & country planning or land use n n AND n n which set the framework for future development n n consent of projects listed in the EIA Directive n n OR n n b) that require an assessment under Article 6 or 7 n n of the Habitats Directive

37. Environmental report n n Must identify, describe and evaluate: n n the likely significant environmental effects of n n implementing the plan / programme, including n n – effects on biodiversity, soil, water, air, climatic factors n n – effects on population, human health, architectural and n n archaeological heritage, landscape n n reasonable alternatives taking into account the n n objectives and the geographical scope of the n n plan / programme n n alternatives must include the « zero » alternative

38. PS Mitigation measures n Issues: public participation on them n Requirements as to info that must be in EIA n ECJ decision must be made in “full knowledge” of all significant effect n But if modest in scope and known to work, clearly defined and confident that they will work……..