Environmental Impact Assessment of public and private projects EIA Directive 85/337/EEC as amended by 97/11/EC and 2003/35/EC Thisvi Ekmektzoglou DG ENV D.3

Basic Principles Key instrument for: - integration of the environment into decision- making - preventive approach Assessment of impacts and their alternatives, identify mitigation measures Public consultations and consultations with other environmental authorities

Environmental Impact Assessment EIA Process Environmental Impact Assessment Annex I projects submitted to EIA (art 4.1) Annex II projects - identification of projects & determination of whether an EIA is required(art 4.2, 4.3) Notification to CA (not obligatory) Preparation of the Project Information on the environ/t +results of the consultations taken on board by the CA: Decision (art 8) Public is informed of the decision (art 4.4) Final Decision is available to the public (art 9) Consultation with CA responsible for environ/t et the public concerned on: project & information (art6) - transboundary Scoping: determination of the content of the study/statement/report (non obligatory) (art 5 et Annex IV) Information on the evaluation of the significant impacts on the environment caused by the project - Study/Statement/Report Consultations with CA & CA responsible for the environment Competent authorities= CA

Trends and experience from 15 MSs EIA Directive 97/11/EC Application and effectiveness Trends and experience from 15 MSs Article 11 para 3 Commission is to send to the European Parliament and Council a report on the application and effectiveness based on exchange of information on experience in MSs 5-Year Review developed on the basis: of a questionnaire sent to Member States in 2002 of analysis of the replies with the assistance of a consultant. (Oxford Brookes University) Adopted in 23 June – COM (2003) 334 final

Sample of questions asked to Member States Annex II/Screening Increase of EIAs numbers Scoping Transboundary consultations Information provided by the developer and completeness of information Assessment of effects on human health Cumulation of projects Risk assessment Public participation Application of Art. 1 para 5 and exemptions

Main concerns as regards the EIA Dir. application in 15 MSs(I) Based on the 5 Years Report- 2003: No systematic screening of Annex II projects Different thresholds (inclusion or mandatory thresholds or criteria, indicative or guidance thresholds and exclusion criteria)

Implementation of screening in MSs In general in MSs there is a great variety of setting thresholds Examples of varying thresholds used for wind farms: Capacity or number of turbines or financial terms (cost of project) Ways MS transpose and apply thresholds Complete coverage of the categories of Annex I and II Thresholds: Fixed ones Case by case evaluation Combinations of above approaches (2) + (3)

Implementation of thresholds Example of combination of Thresholds and Case by Case examination in the case of wind farms Above 200 MW -Inclusive threshold In this case an EIA is mandatory Between 199 MW to 151 MW Case by case evaluation needs to be carried out Below 150 MW - Exclusive threshold In this case no EIA has to be carried out However, a case by case evaluation might needed if the project is located nearby a natural protected area

Screening Jurisprudence Case C-392/96 Commission versus Ireland: MSs are not allowed to exempt whole classes of projects from the requirement for EIA, nor to avoid taking into account when establishing thresholds only of the size of projects but also their nature and location (Annex II 1.b projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes) Case C- 435/97 ITA/WWF (Bolzano/Italy): No general exemptions for entire classes of Annex II projects permitted. Member States are not allowed to set thresholds/criteria that practically exclude classes of project from EIA. (mixed airport: military and commercial)

Main concerns as regards the EIA Dir. application in 15 MSs(II) Based on the 5 Years Report- 2003: Cumulative effects of projects with those stemming from other projects Salami slicing practices Quality of environmental statements

Cumulation with other projects, Salami - Slicing Growing awareness is found among MSs and measures are in place in many MSs to address these two interrelated issues. For Salami-Slicing some MSs have established measures to reveal or prevent such practice, including setting low thresholds or calling for assessment of the “whole programme”

Poor quality of environmental statements Directive 97/11/EC introduced minimum requirements regarding the information to be supplied by the developer which could serve as a tool for reviewing the environmental statements In the majority of MSs failure to provide adequate information constitutes grounds for refusal of development consent.

Development Consent All projects covered by the Dir. must be subject to a development consent. In case where the consent procedure comprises several stages, that assessment must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment (Delena Wells judgment, UK-Mining, of 7.1.2004/ Case 201/02)

Number of EIAs carried out in the Member States (estimated numbers)

New amendment of the EIA-Directive 2003/35/EC Revised in order to align to the provisions of public participation of the UNECE Aarhus Convention Introducing new provisions on public participation (introduction of definitions of public and public concerned where NGOs are quoted) A new article 10(a) dealing with the access to information requirements Deadline for transposition 25 June 2005

 Complaints (852)  Own Initiatives 125  Infringements 61 EIA Open Cases (25/09/2002)  Complaints (852)  Own Initiatives 125  Infringements 61

What’s wrong? State of play of complaints Visible problems: complaints petitions parliamentary questions EU co funded projects Between 1997 and 2001 Visible problems: complaints petitions parliamentary question EU co funded projects Between 1997 and 2001 977 complaints (incl. ‘own initiative cases’) on conformity & wrong application of the EIA Dir. only 36 reasoned opinions Reasons for that: Complaints may not be well-founded Problems are solved before the Commission is obliged to issue a reasoned opinion 977 complaints (incl. ‘own initiative cases’) only 36 reasoned opinions

What’s wrong? Content of complaints Absence of EIA (Article 4 (2)) problems with screening in itself problems with the application of thresholds Poor quality of EIA reports (Article 8) incomplete EIA reports faulty taking into account of environmental effects into the decision-making Procedural shortcomings (Article 6) too short public consultation period Article 4 (2) (screening) in particular as regards the screening in itself the application of thresholds the listing of projects of Annex II Article 6 (public participation) too short public consultation period is given Article 8 (information gathered and taken into consideration in the development consent procedure) insufficient information and taking into consideration

What’s wrong? Findings of complaints (ECJ Cases) EIA Directive should be interpreted as having a wide scope and very broad purpose (Dutch Dykes case) Thresholds for screening Annex II projects, cannot be fixed at such a level as to exclude whole project types from assessment (Dutch Dykes & Grosskrotzenburg case) Thresholds cannot be limited to the consideration of the size of projects; nature and location of the project also need to be taken into consideration (Commission v Ireland case) Changes and extensions to projects shall be subject to EIA should their size/ scale/ other factors meet the EIA requirements for a new project of this type (Dutch Dykes & Grosskrotzenburg case)

What are the conditions to make EIA successful? Start thinking about environmental effects as soon as you start thinking about the project Participation of environmental authorities and the public concerned as early as possible Availability of relevant data Availability of good guidance and training Good professional skills of the consultant in charge of the EIA Close co-operation between competent authority, developer and consultant in charge of the EIA Cost-efficiency of EIA

Be careful when applying the EIA Dir: Conclusions! EIA Directive enhances democratic procedures Good implementation strengthens the promotion of sustainable development Some tips: Be careful when applying the EIA Dir: The results of the application of EIA Dir. in the 15MSs show that incorrect application gives rise to a high number of complaints. Risk for EU co-funding.

Thank you for your attention! More information on EIA/SEA can be found in DG ENV web page: http://europa.eu.int/comm/environment/eia/home.htm