Environmental Impact Assessment of public and private projects EIA Directive 85/337/EEC as amended by 97/11/EC and 2003/35/EC Recent developments Laura Tabellini, European Commission DG Environment – Unit D3

Prague, 11 April Presentation outline 1.Legislation and ECJ case-law « SEA » Directive Directive 2003/35/EC Recent ECJ case-law 2.Continuing issues in implementation 3.What’s happening in Brussels?

Prague, 11 April What’s new in the legislation? Directive 2001/42/EC (the « SEA » Directive) to be applied from July 2004 Directive 2003/35/EC deadline for transposition approaching! (25 June 2005)

Prague, 11 April SEA Directive Very similar to EIA, but SEA applies to plans and programmes rather than projects Some additional requirements, including: –clearer statement of objectives –consultation of env. authorities in screening –description of reasonable alternatives & reasons for their choice –information on decision (cf 2003/35/EC) –monitoring –quality of reports to be ensured by MSs

Prague, 11 April 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-framesArt. 6 Main provisions of Directive 2003/35/EC

Prague, 11 April New provisions on public access to a review procedureArt. 10(a) Information provided to the public on the final decision needs to include information on the public participation processArt. 9(1) Changes or extensions : –of Annex I projects meeting Annex I thresholds (if any)  in Annex I (22) –of Annex I and Annex II projects, if not included in Annex I  in Annex II (13) Main provisions of Directive 2003/35/EC

Prague, 11 April European Court of Justice and the EIA Directive The Court’s approach: key messages Case-law: C-201/02 (Delena Wells) C-87/02 (Italy) C-227/01 (Spain) C-392/96 (Ireland)

Prague, 11 April The Court’s approach The EIA Directive has “a wide scope and a broad purpose” Member States’ discretion is limited Consistent emphasis on the fundamental purpose of the Directive: projects likely to have significant environmental effects must undergo an EIA Exemptions to be interpreted narrowly

Prague, 11 April Delena Wells C-201/02 In two (or more) stage consent procedures, assessment of environmental effects must be carried out 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.

Prague, 11 April Comm v 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.

Prague, 11 April Comm v Spain C-227/01 The doubling of an existing railway track is to be interpreted as covered by Annex I and not a mere modification within the meaning of Annex II The new track would obviously create significant new nuisances, so no need to prove the existence of concrete negative effects – likelihood is sufficient. A long-distance project cannot be split into shorter sections in order to exclude from the requirement of the Directive both the project as a whole and the successive sections

Prague, 11 April Comm v 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.

Prague, 11 April What are the main problems in implementing the EIA Dir.? Comprehensive information on old MSs: The “5 years report” COM(2003) 334 final (23 June 2003) Symptoms in old and new MSs: Complaints Petitions Parliamentary questions Problems in EU co-funded projects

Prague, 11 April Some statistics Over one third of complaints to the Commission are about environment One fifth of infringement cases relate to environmental directives 17% of all open cases concern EIA (over 200 cases) Data as at

Prague, 11 April EIA - Continuing problems… Screening: –Annex III criteria not properly taken into account –Different thresholds and criteria in MSs « Salami-slicing », project-splitting Poor quality of EIA reports: –Alternatives –Cumulative effects Lack of data on EIA activity in MSs Influence of EIA on decision-making

Prague, 11 April … and « new » issues SEA Directive and EIA: –SEA applies to plans and programmes “setting the framework for the development consent” of projects covered by the EIA Directive: how to coordinate the two? –A tiered system of environmental assessments: an opportunity or a concern? –Monitoring and data collection

Prague, 11 April Anything missing in the EIA Directive? Treatment of natural and technological risks Coverage of implications for health Links with other directives Quality control Monitoring …

Prague, 11 April What’s happening in Brussels? Ongoing research projects: –Screening practices and thresholds –Relationship between EIA and SEA –Health and risk assessment in EIAs, Annex I thresholds and relationship between the Annexes Work towards new guidance documents: –Article 2.3 (exemptions) –Quality assurance of EIAs –Definitions of project categories in the Annexes Reflection on future improvements of the EIA Directive

Prague, 11 April What could be improved in the EIA Directive? (i) Closing the gap with the SEA Directive: –screening: consultation of environmental authorities (and reasons for negative screening) –alternatives –monitoring –quality assurance Public consultation in screening and scoping

Prague, 11 April What could be improved in the EIA Directive? (ii) Changes to the Annexes –New categories? –Moving projects between the Annexes? –Definitions? Relationship with other Directives –IPPC, Habitats Directive…? Improved / clearer definitions: –project, development consent… Approach to screening …

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