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12 Oct 2007 T o what extent could measures be taken to improve the procedures of the Crude-oil refineries (excluding undertakings manufacturing only lubricants from chemical treatment as defined in Annex IIA to Directive

    EVALUATION ON EU LEGISLATION DIRECTIVE

    85/337/EEC (ENVIRONMENTAL IMPACT ASSESSMENT,

    EIA) AND ASSOCIATED AMENDMENTS

    A Briefing Note for the Informal Meeting on Possible Simplification Measures

    th12 October, 2007, Brussels

    GHK Consulting, in association with Technopolis

    526 Fulham Road, London SW6 5NR

    Tel: 020 7471 8000; Fax: 020 7736 0784

    www.ghkint.com

    Evaluation of the EIA and Related Directives Scope for Simplification

    1 INTRODUCTION

    1.1 The Purpose of this Note

    Industry stakeholders have previously identified directive 85/337/EEC as an

    impediment, in terms of procedures and delays, to the success of investment projects

    in Europe. A key objective of this study is to identify possible ways to reduce delays

    and to reduce the complexity of procedures.

    The purpose of the meeting is to identify fully the concerns of industry stakeholders;

    and to consider possible actions that might be taken by the EC, but also recognising

    the role of MS in transposing and implementing the EIA regime

    This note provides a brief introduction to the work of the evaluation, a review of the

    problem and then sets out some ideas for simplification.

    1.2 The Purpose of the Evaluation

    The focus of the evaluation is summarised in the questions below:

    Evaluation Evaluation questions

    Criteria

    Effectiveness 1. How do other related directives (IPPC, Seveso, Habitats, SEA) affect the EIA

    regime? How do the procedures of other directives interact with the EIA

    procedures?

    2. To what extent has the EIA regime (including related provisions of other

    Directives) prevented harmful environmental impacts and/or promoted steps to

    minimise harmful impacts?

    3. Which elements of the regime have been the most significant / effective in

    securing environmental benefits? How are these elements influenced by links

    with other related directives?

    4. What are the barriers to effective application of the directives, if any? How

    could any such barriers be overcome? Costs and 1. What are the delays and costs to developers / enterprise of complying with

    Impacts the EIA regime as transposed in the MS? What are the costs to the MS and

    taxpayers of implementing / enforcing the EIA regime as transposed?

    2. How do SMEs cope with the burden of the EIA regime? And what are the

    negative and positive impacts for SMEs?

    3. Which elements of the regime have the greatest influence on the level of

    costs incurred? Are these the elements most persuasive in securing

    environmental benefits?

    4. Do stakeholders consider the environmental (and other) gains offset the

    burden of operating within the regime? Are the costs of the EIA regime

    proportionate to the benefits for SMEs? Best Practice 1. T o what extent could measures be taken to improve the procedures of the

    EIA regime without compromising its effectiveness, and what measures would

    these be?

    2. Is it possible to find more efficient ways to achieve the current objectives of

    the Directive?

    3 Is there good practice that supports the case for these changes?

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    Evaluation of the EIA and Related Directives Scope for Simplification

    2 THE NATURE OF THE PROBLEM

    2.1 The Need for Simplification

    In its March 2005 Communication on “Better Regulation for Growth and Jobs”, the

    Commission identified simplification as a priority action for the EU. The overall

    objective is to contribute to a European regulatory framework that fulfils the highest

    standards of law-making and delivers the policy objectives of the Community in the

    simplest and most cost-effective way.

    The Commission would like to fully understand the burdens created for enterprises and

    public administrations of the Directive. It is also imperative that under the Better

    Regulation agenda it should be established whether the directives are suitable for a

    possible codification and possibly simplification.

    2.2 The Relationship between EIA and the Planning Regime

    The need to take environmental considerations into account when providing consent

    for development projects was formalised by the introduction of the European EIA

    Directive (85/337/EEC) in 1985, with subsequent amendments. The EIA Directive

    established a standard approach and sought to ensure a „level playing field‟ in the

    treatment of environmental impacts across the EU. In most cases, EIA is given legal

    effect through the national planning regulations, and is required for certain types of

    projects to gain development consent.

    2.3 Transposition of the EIA Directive The Problem of Gold-Plating

    The Directive and its later amendments (in 1997 and 2003) meant a greater

    formalisation of certain elements, such as consultation, public participation and

    consideration of transboundary issues. In most Member States, the creation of

    environmental laws and regulations, as well as amendments to existing laws, has

    facilitated the transposition of most of the Directive. However, there remain issues of

    compatibility in some MS, caused mainly by a failure to transpose the Directive in full.

    The most significant difference between the EU Directive and transposition at the

    Member State level relates to the screening stage, and more specifically, the manner

    in which Annex I and II have been transposed into national regulations. The EIA

    Directive set out a specific list of development projects which require a mandatory EIA

     Annex I - as well as a list of development projects which may require an EIA, subject

    to screening either through a system of thresholds or on a case-by-case basis Annex

    II.

    Several of the Member States appear to have implemented their own „rules‟ with regards to the types of projects which require EIA. In Spain, national legislation has

    included a series of project categories in its version of Annex I, which are not included

    in the Annex I of the original Directive. These relate largely to mining or drilling facilities.

    Other project categories in the Spanish Annex I are taken from Annex II of the EU

    Directive, and include categories mainly relating to energy, chemicals and

    infrastructure projects.

    Over-implementation of the EIA Directive, also referred to as „gold-plating‟, would

    appear to be fairly common across many of the Member States. As well as adding

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    Evaluation of the EIA and Related Directives Scope for Simplification

    more project categories to Annexes than is stated in the European Directive, MS set their thresholds for projects subject to a mandatory EIA lower in comparison with those specified at the EU level. This has for example been the case in the Netherlands, and there is growing concern that the increasing number of EIAs being undertaken may be attributed to this.

    2.4 Overlaps with other Directives Increasing Complexity

    Overlaps have been identified between the EIA Directive and other Directives, leading to complexity.

    2.4.1 IPPC

    The list of prescribed activities requiring IPPC permits does, to some degree, overlap with the lists of development types in the EIA Regulations. Where there is overlap, it has been recommended that the two procedures are undertaken in parallel as much as possible, to prevent duplication of effort. However, none of the MS in the study appeared to have a single procedure to comply with both Directives, due to the differences in the detail and order in which the regimes are to be complied with. The IPPC application is usually more detailed than the EIA in terms of describing the process, focusing mainly on emissions to air, water, land, noise, and requires that the best available technology is used for a specific activity. Furthermore, the competent authorities for both regimes tend to be different bodies.

    2.4.2 SEA

    The areas of overlap most commonly identified between the two regimes tend to be within urban development projects, industrial estates, some tourism and leisure facilities and certain types of electricity and transport infrastructure. Although most MS do not appear to have designed a single procedure to comply with both Directives, Germany introduced an environmental law in 2004 (EAG Bau), which brought an integrated environmental assessment into land-use planning to fulfil the requirements of SEA, EIA and Seveso.

    2.4.3 Habitats

    Projects, plans or activities likely to have a negative impact on Natura 2000 sites (sites of significant nature conservation interest) are subject to an assessment procedure (Appropriate Assessment (AA)) under Article 6 of the Habitats Directive. The requirement of such an assessment does not preclude the need for an EIA, neither does an EIA preclude the AA. In practice, many developers who are subject to complying with both regimes do tend to incorporate the AA into the EIA (or Environmental Statement), as a separate and clearly distinguishable „chapter‟ of the

    ES, as opposed to providing a stand-alone report.

    2.5 Too Many EIAs Inadequate Screening

    The number of EIAs undertaken varies significantly between the MS, ranging from approximately 600 (UK) to as many as 6,000 (France) per year. However, the trend across all the MS studied was a continuous rise in the number of EIAs being undertaken. The strict use of thresholds, whether based on overall size of a project (Netherlands) or the financial cost of the project (France) has created the risk of requiring far too many EIAs for projects that quite clearly are unlikely to have potential negative impacts. This has led to a shift away from proving whether effects of a

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    Evaluation of the EIA and Related Directives Scope for Simplification

particular project are likely to be significant, and has removed the emphasis on local

    authorities to be robust in their reasoning behind their screening decisions.

    There are several possible reasons for the notable rise in EIAs undertaken:

    ? Screening issues: It is more likely than not that the competent authority will

    issue a positive screening decision (i.e. EIA is required) in most cases

    (Germany is an exception to this). This is driven by a number of factors.

    o Firstly, fear of legal challenge amongst local authorities for approving a

    project without first assessing its potential environmental impacts.

    Successful legal challenges can result in the local authority being fined

    or receiving a bad press.

    o Secondly, many competent authorities lack the appropriate skill-set or

    resources to deal with EIA-related issues, particularly in areas not

    used to high development pressures. This directly affects the decision-

    maker‟s ability to make decisions to reject the need for EIA,

    o Thirdly, the precautionary principle will usually always be applied it is

    „safer‟ to ask for an EIA.

    ? Transposition: The manner in which the Member State transposes the

    Directive, particularly with reference to the Annexes, and project thresholds has

    a direct impact on the number of EIAs that are undertaken. ? Political reasons: In some Member States, local authorities respond to

    situations where the local electorate is likely to be „anti-development‟ or „NIMBY‟

    („Not-In-My-Backyard‟), and require an EIA as a means of delaying / deferring

    uncomfortable decisions

    2.6 Skills and Training Poorly Specified and Managed Procedures

    Training and competence to implement the regime and deal with EIA-related issues

    has emerged as an extremely important factor in shaping the effectiveness of the EIA

    regime. This is the case in all MS studied, and although levels of competence differ

    between MS, there still remains a significant shortage of the necessary skills and

    competence at the local administrative level to deal with the EIA procedure, with the

    level of training provided inadequate in some of the Member States.

    2.7 Case Law and the Likelihood of a Legal Challenge

    The increasing amount of case law, both at the domestic level and at European level

    (ECJ), has alerted Member States to the wealth of potential legal challenges which can

    be raised, by a range of stakeholders (including local residents, environmentalists etc).

    It is possibly the principal reason for the over-precautionary approach taken by

    competent authorities (CA). Anti-development lobbies have regularly been able to take

    the developer to Court over a small procedural issue e.g. not putting up an advert

    properly, rather than because of the nature or subject of the development. There is a

    realisation among some CA that the EIA is being used as a tool for „frivolous challenge‟.

    2.8 Transboundary Issues

    In 1997, the European Commission adopted a Council Directive (97/11/EC) amending

    the original 1985 EIA Directive, making it mandatory for Member States to take

    transboundary effects into consideration during EIA processes. Despite this, it would

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    Evaluation of the EIA and Related Directives Scope for Simplification

appear that there is no standardised approach to dealing with transboundary issues,

    and Member States which have experience with such projects (e.g. operations in a

    border area with effects on water or infrastructure such as pipelines or roads) have

    observed several shortcomings.

    The transboundary nature of projects adds a certain degree of complexity to the EIA

    procedure, creating a number of delays. Difficulties can arise from different levels of

    interests between Member States in promoting a project, which can result in significant

    delays.

    Transboundary projects often require longer timescales to achieve an agreement on

    the scope of the EIA. This is likely to be exacerbated if the respective CA‟s are at different levels (national, regional, local). A lack of experience in dealing with

    transboundary issues, as well as other complexities such as the language barriers and

    lack of familiarity with different planning systems can all contribute to delays as well.

    Example: German case study Regeneration of mining areas/creation of new water infrastructure in Eastern Germany

    This case study involves infrastructure to support the flooding of residual mining pits and the

    creation of new water bodies, close to the German-Polish border. The planning process lasted five years. Even after the authorisation of the projects was granted, the Polish authorities

    continued to raise concerns about the project.

    Unfamiliarity with the transboundary EIA process and the law and practice in each state was

    undoubtedly a major factor contributing to delays and uncertainties in the process:

    ? In Germany, the competent authority at the local/district level is responsible for dealing

    with all matters relating to the permitting procedure, with national or regional level

    involvement only in exceptional circumstances or for certain project types

    ? In Poland, objections from the public and local authority were not sent directly, but

    collated, passed on and then discussed within the EIA committee of the Ministry of the

    Environment. This took seven to eight months, in comparison with the one and a half

    month timeframe allocated to the German public in which to submit their objections

    and/or statements. It was acknowledged later on that some of the statements could

    have been produced a lot faster.

    Delays in the process were also the result of potential complex and significant environmental

    impacts, and subsequent need for additional analysis to be undertaken. Translation and

    interpretation were specific issues in this particular case study, contributing to delays in the distribution of documentation, the length of meetings and the mounting cost of the process.

    However, it must be pointed out that good quality translation and interpretation is essential for a

    successful outcome, for example, in reducing misunderstandings.

    2.8.1 Interconnectors

    The lack of coordination on transboundary projects is well illustrated in the case of the

    BritNed electricity interconnector, proposed for construction between Great Britain and

    the Netherlands. Compliance of the project with the EIA regime was studied both from

    the GB perspective and the Dutch. In summary, the case reveals differences of

    principle as to whether it should be subject to EIA, little if any co-ordination or

    communication relating to the EIAs between the two MS (perhaps because impacts

    were essentially domestic) and lengthy delays associated with project design,

    unrelated to the EIA process, but which still meant a lengthy EIA procedure.

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    Evaluation of the EIA and Related Directives Scope for Simplification

Case study: BritNed interconnector

    The EU is striving to achieve a greater liberalisation of the EU electricity market. One objective is for customers for electricity to be able to decide freely where they make their purchase. In

    order to transport the electricity to customers, high voltage links are needed. National transport grids have the largest capacity and are linked to one another by a limited number of

    international links (interconnectors). As yet, there is no such link between the Netherlands and

    Great Britain. Existing long and indirect transmission routes between the two countries are

    inefficient running via Belgium (or Germany), France and then under the English Channel. The BritNed interconnector, a proposed 260km 1,000 megawatt electricity interconnector, would

    provide a direct link, cutting congestion and reducing energy losses, thus providing a far more

    efficient means of transport. The link will be particularly valuable as it can be activated, or its

    flow can be reversed, very quickly. BritNed would also increase competition in the electricity

    markets by introducing new players into both GB and NL markets; it is hoped this would

    translate into lower prices for consumers.

    EIA process - Netherlands

    Electricity infrastructure is a matter of national interest in the Netherlands. All new electricity

    infrastructure projects are listed in the Dutch National Planning Decree (also known as SEV2),

    which has the status of a Key Planning Decision. BritNed therefore had to be added to SEV2 in

    order to obtain the necessary consent permits. The EIA process had to be completed before modification to the SEV2 could take place.

    Subject to EIA?

    The BritNed project coordinators decided to „self-screen‟ (i.e. skip the screening stage) due to

    the size of the project. Some of the potential trajectories for the interconnector crossed areas protected by the European Habitats Directive. An appropriate assessment was therefore also

    conducted.

    Key issues

    The EIA process took four and a half years to complete, although this was not attributable to

    EIA itself. Different alternatives had to be developed and this required more research than

    expected as a result, the writing of the ES also took longer than expected. Coordination

    between the four different Ministries was complex and required a lot of time. A dispensation

    from the national electricity act was needed and took a long time to obtain. Environmental effects

    The general view was that the environmental effects of the project were limited, and this view

    was supported by the National Commission on EIA. The ES also demonstrated that it was unlikely that the project would affect habitats and species protected by the Habitats Directive or

    by Dutch environmental legislation. Information provided in the ES was therefore „unsurprising‟

    to both the developer and the authorities.

    Transboundary impacts

    Cross-border effects were not likely to occur. The Belgian and UK Government were briefed

    about the plans, yet no feedback was received. There was also no contact between the Dutch

    government and the UK regarding the British side of the interconnector.

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    Evaluation of the EIA and Related Directives Scope for Simplification

EIA process Great Britain

    Subject to EIA?

    The key point made by environmental consultants acting for the British side of BritNed was that interconnectors are not explicitly listed in the Annexes of the EIA Directive. As none of the components converter stations, submarine cables and interconnectors were in either Schedule 1 or 2, the UK EIA Regulations, they could not technically be applied to the project.

    Previous case law precedence had been used to show that similar interconnectors in the past had also been ruled as not requiring an EIA by the Secretary of State. The EIA Regulations

    were seen as an additional burden to the Town & Country Regulations (main UK Regulations for

    most developments), and would have introduced a new level of risk and challenge for claims that procedures were not being followed properly.

    Key issues

    Technically, the BritNed interconnector was not subject to EIA, although the environmental

    consultants still conducted a procedure of environmental assessment practically identical to EIA, instead referring to the Environmental Statement as a „Land Environmental Report‟. The lack of

    a formal undertaking of EIA simply meant that there was less opportunity for legal challenges to

    be mounted (in the name of EIA).

    A long time was taken over the design of the access road, although this must be regarded as

    more of a project cost than an „EIA cost‟. The cost of the road study was substantial and yet

    only a few paragraphs were written in the environmental report regarding the issue. The EIA was also delayed while the design study of the road was finished. Despite not asking for any revision to be made to the environmental report, the competent authority took 26 months to issue planning permission (the usual timeframe for a response to environmental statements is 13 weeks). This was unusually long given that there were no

    objections from non-statutory/statutory consultees, and that the period of time allowed for legal

    challenge had elapsed too.

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    3 IDEAS FOR SIMPLIFICATION OF THE EIA REGIME

    3.1 Introduction

    This section summarises, in three tables, a series of ideas and suggestions for the

    simplification of the EIA regime aimed at reducing the costs and delays associated with

    the EIA procedures.

    ? Table 1 introduces ideas for a significant change in the current EIA regime

    with the introduction of clearly defined projects of EU significance and interest

    and related changes in the EIA procedures

    ? Table 2 introduces ideas for simplification based on improvements in the

    existing system of EIA, and which should be considered at the EU level and

    included in revised Guidance

    ? Table 3 introduces ideas for the simplification of the EIA regime at MS level,

    recognising that there is considerable variation between MS in the operation of

    the regime, and which would allow a „grassroots‟ improvement

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    Evaluation of the EIA and Related Directives Scope for Simplification

    Summary Tables of Options and Ideas

    Table 1: Change the Focus of the EIA Directive to Projects with EU Significance

    Proposal Rationale Advantages Disadvantages Revision to Annex I List of Projects of The purpose of the EIA Directive was to The proposal would focus EU EU policy statements in support of EU Significance (Internal Market) ensure a level playing field in the EU for attention on major projects. classes of project would be needed

    the assessment of projects. Most EIAs to define EU significance. Revision to Annex II List of Projects of Significance of investment projects are required for projects largely

    MS Significance (to be defined by the for the Lisbon Agenda would be Issue of scale as well as principle, unrelated to the internal market (e.g.

    MS) explicit requiring further judgment and industrial estates, urban development).

    possible use of thresholds [Note this proposal extends the Timescales for completion of EIA The Directive and related Guidance

    DGTREN proposal for projects of EU could be set for classes of project Timescales may be set with would be focused where there was EU

    interest Annex C] (although this would require reference to the slowest, not the added value from the Directive; i.e. on

    „suspension notices‟ where delay quickest, MS experience those projects that had the potential to

    was due to other factors, if delays influence the internal market and/or

    Differences in MS transposition may attracted some penalty) where different MS approaches might

    lead to differences in the nature and harm EU competition.

    conduct of an EIA such as to

    undermine a common approach Extend the previous proposal with the A single EU wide system of EIA (with Introducing an EU wide procedure The procedure would need to introduction of a single statutory EIA supporting Guidance, accreditation and would ensure a level playing field recognise different MS planning & procedure for Projects of EU training) would simplify procedures and and reduce need for interpretation development consent procedures Significance Revise the Directive into improve quality of EIAs. MS would still and legal rulings from ECJ

    MS may end up with two approaches a Regulation. All other projects would be determine consent.

    Overlaps with other environmental to EIA one for projects of EU exempt from the Regulation

    Since there is little or no EU interest in directives (especially Habitats) significance and one for the Revision to Annex 1 List of Projects of many development projects, MS should, could be dealt with more explicitly. remainder. Of course MS could

    under subsidiarity, be able to determine

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