Promoting compliance with the EIA Directive IAIA 2017, Montreal Dr. Ismo Pölönen Senior Lecturer of Environmental Law Law School, University of Eastern Finland

Focus and aim of the presentation The new EIA Directive (2011/92/EU, amend. 2014/52/EU) from the perpective of implementation & compliance. Aim to facilitate (comparative) discussion on the issue of compliance in the context of EIA law and systemize regulatory mechanims promoting implementation & compliance. Based on the legal analyses within the EIA Law in Transition- project (Oct 2016 – Sep 2018) funded by the Academy of Finland. Pölönen, I. The revised EIA Directive from the perspective of the Finnish EIA system – Legal push for real impovements? UVP-report 2/2016. Pölönen, I. Ympäristövaikutusten arvioinnin uudet EU-oikeudelliset raamit. Ympäristöjuridiikka 2/2016.

Flexible EIA norms as a challenge for determining compliance / non-compliance Various concepts of EIA law, such as ”likely significant environmental impact” leave room for various interpretations in the key phases of EIA. compliance/non-compliance often not clear Role of competent EIA authority in determining compliance vs. developer´s access to justice. Factual difficulities to test the view of authority before the court (significant delays in the consenting process). Beyond compliance By developers (over-inclusive EIA reports) By competent authorities

The revised Environmental Impact Assessment Directive The most significant revision of EIA Directive since its adoption in 1985. Aims of streamlining the EIA process and improving its capacities in terms of environmental protection. Sets the frames but lets the member states to decide various details. The renewal did not change the fundamental characteristic of the EIA Directive as a procedural statute. Legal compliance vs. environmental effectiveness?

The revised Environmental Impact Assessment Directive A push for important structural improvements. Provides frames e.g. for strengthening the role of the competent authority as an impartial reviewer of the EIA report and a body that draws crucial conclusions on the significant impacts of the project. The new content requirements of EIA report as a key challenge for the implementation: Which part of Annex IV information and related studies can be scoped out without breaching the EIA Directive, and what the minimum levels of detail and quality are the EIA report has to reach? Description of the likely significant effect vs. risk assessment Consideration of alternatives (only those studied by the developer?)

Regulatory responses Legal requirements for systematic scoping Scoping advice with direct legal impacts as a (context sensitive) mechanism to concretize open ended concepts of EIA law. Public participatory rights Access to information (transparency), hearings and possibility to collaboration combined to access to justice. Requirements on the expertise (developer and competent authority) Regulation on the pre-negotiations (Bill, Finnish forthcoming EIA Act) Before or/and during the EIA process Penalties (marginal role)

THANK YOU! EIA LAW IN TRANSITION -PROJECT: www.uef.fi/web/yva/home Forthcoming: International Conference on the EIA Directive (first experiences & lessons),  Fri 23rd of March, 2018 (House of Science, Helsinki). Esityksen nimi / Tekijä 10.03.17 7