Jerzy Jendrośka Decisions on proposed activities not listed in annex 1 of the Convention (article 6 paragraph 1 (b) of the Convention) Task Force on Public Participation in Decision-Making Sixth meeting Geneva, February

Introduction Genesis and legislative history Issue not handled extensively – by the Compliance Committee – by the Synthesis Report Limited practical application Guidance – Implementation Guide – Maastricht Reccomendations Jerzy Jendrośka2

Requirements Mechanism should be established – within the national legal framework; – to determine whether a decision on a proposed activity which is not listed in annex I; – may yet have a significant effect on the environment and thus; – require public participation in accordance with the requirements of article 6. Jerzy Jendrośka3

Mechanism Two stages – Identification of activities which potentially may have an effect on the environment; – Determination a as to which of those may have a “significant effect” and therefore require public participation in accordance with article 6, paragraph 1 (b). Mechanism may or may not – be related to national EIA scheme Jerzy Jendrośka4

Identification Activities that require enviromental permit or licensing under national legislation Activities that require environmental screening under national legislation * Other activities (?) Approach to para 20 of Annex I Jerzy Jendrośka5

Activities that require environmental permit - examples noise permits, emissions permits, logging permits, authorizations for culling or disturbing animals, permits for discharge of water or for water intake, fracking permits, mining permits, exploratory drilling permits, fishing permits, export or import permits for endangered species, etc Jerzy Jendrośka6

Activities that require environmental screening under national legislation Changes to or extensions of activities within the scope of the second sentence of paragraph 22 of annex I to the Convention; Activities subject to individual screening for environmental assessment,for example – annex II activities under the EIA Directive – activities subject to nature protection assessment (for example, activities subject to article 6, paragraphs 3 and 12, of the EU Habitats Directive) Jerzy Jendrośka7

Determination Method – Making a list – Individual screening on case-by-case basis – Mixed approach Criteria needed in case of individual screening Criteria subject to public scrutiny (ACC-50 Czech Republic) * the outcome of the respective environmental impact assessment (EIA) screening process is a determination under article 6, paragraph 1 (b), of the Convention (ACCC/C/2010/45 and ACCC/C/2011/60 (United Kingdom), ACCC/C/2010/50 (Czech Republic)) Jerzy Jendrośka8

Criteria „ Significant effect on the environment” according to the Implementation Guide Significant – used mostly for EIA/SEA – For other purposes other similar expression is used (for example „serious” in industrial accidents legislation) Criteria for significance – well established for the purpose of EIA/SEA Appendix III to Espoo Convention Annex III to EU EIA Directive – some criteria in other fields Jerzy Jendrośka9

Significant effect on the environment (Implementation guide); -mere likelihood of significant effect triggers the obligation; -“significance” of the effect on the environment is what takes ordinary decision-making into the realm of environmental decision-making; -significance is not defined in the Convention, but some guidance as to how it is interpreted in other contexts can be found in appendix III to the Espoo Convention and other sources related to EIA procedure; -the test of significance should be applied objectively and not in a manner to avoid public participation. Jerzy Jendrośka10

Espoo Convention (Appendix III) Assessment of the significant adverse transboundary impact by virtue of one or more of the following criteria: (a)Size: proposed activities which are large for the type of the activity; (b)Location: -allocation in or close to an area of special environmental sensitivity or importance; and also where the characteristics of proposed development would be likely to have significant effects on the population; (c) Effects, particularly complex and potentially adverse effects. Jerzy Jendrośka11

Application of art. 6 1 (b) in practice in EU countries Activities subject to EIA screening – Annex II projects to EIA Directive – Additional activities Habitat assessment Seveso III Directive Extractive waste Directive Jerzy Jendrośka12