Interaction between EIA and Articles 6.3 and 6.4 of Habitats Directive Yvonne Scannell Law School, Trinity College, Dublin Arthur Cox, Solicitors, Dublin

Cf EIA to AA Requires EIA for listed projects only. Can apply to any kind of plan or project big or small- including EIA projects Art.6.3.

Exemptions Exemptions for defence projects, projects adopted by legislation and in exceptional cases EIA Directive, Arts.1.3, 1.4, 2.4. Only exemption is if the plan or programme “is directly connected with or necessary to the management of the site”. Art 6.3

Publication requirements for screening Annex 11 screening decisions to be publicly available and ECJ says reasons must be given for them if requested. No explicit obligation to publish screening decisions but they must be available to requesting third parties. Methological Guidelines say reasoning and decision to be published

SCREENING & MITIGATION Mitigation measures may/must be considered when screening for EIA subject to satisfying certain criteria. Methological Guidelines say no but argued mitigation measures can be considered but criteria for mitigation measures arguably somewhat stricter when screening for AA

Screening tests Environmental features must be likely to be affected to justify requiring EIA Directive, Art.5.1.a If there is a mere probability that the plan or project will have effects, or if there is a risk or doubt re significant effects or it cannot be excluded that there will be significant effects, AA required. Waddenzee, para 45 Pfizer – proportionality principle applies to risk assessment

WHAT HAS TO BE STUDIED? Likely significant effects on the environment as defined in the EIA Directive. Significant effects to be assessed (on all the environment) theoretically very extensive Applies to plans and projects likely to have a significant effect on a site in view of the site’s conservation objectives

CUMULATIVE EFFECTS Applies to cumulative effects of various projects. Applies to cumulative effects of plans or projects either alone or in combination with other plans or projects

QUALITY OF INFORMATION REQUIRED Information required is having regard, inter alia, to “current knowledge and methods of assessment” in so far as it is reasonable to ask developer to provide. Information for assessment to be based on best scientific knowledge. (Requirements “excellence, independence and transparency.”)

Affected environment different for each The environment which will likely be affected may possibly be unknown when the project is proposed. The aspects of the site to be protected will be ascertainable from the conservation objectives specific to the site which reflect the “ecological requirements of the natural habitat types and species in Annex 1 and 11”.

Consultation Public consultation mandatory EIA Directive Arts.4.4, 5.2, 6, 7, 8, 9, 11. Aarhus. Public consultation “if appropriate” for Stage 2 Art.6.3. Required if Aarhus applies

Must the assessment be written? No explicit requirement for written assessment of EIS but ECJ implies it English and Irish courts say reasoned decision on conclusions of the AA required.Methological Guidelines say yes.

Outcomes of assessment In principle projects can be authorised even if there are better alternatives. In principle, plans and projects adversely affecting site integrity of site cannot be approved. Article 6.3 Unless ROPI

Alternatives Only alternatives considered need to described but some competent authorities have invented ways of requiring a proper examination of alternatives Project cannot be allowed unless there is NO alternative and unless there are reasons of overriding public interest.

Compensatory measures No obligation on Member State/developer to take compensatory measures if significant adverse effects on the environment. Obligation on Member State “to take all compensatory measures to ensure that the overall coherence of Natura 2000 is protected”

Obligation to consult Commission Obligation to inform Commission of reasons for exemption from EIA under Art.2.4 No obligation to justify negative screenings in Habitats Directive to Commission.

Procedures Procedures for EIS and EIA prescribed in detail No prescribed procedures for AA

Aarhus Convention is part of the acquis Picture of a brown bear!

Transboundary issues EIA Directive requirement to involve other Member States significantly affected by project Aarhus rights of public participation, access to information and access to justice Espoo No requirement in Habitats Directive to involve other MS. But.. Aarhus rights to be implied

Some remedies EIA Directive, Complaint against State to Espoo Compliance committee but..MOX Directive obligations can be enforced in domestic courts Complaint to EU Commission Habitats Anyone in any State party or NGO can complain against another State party to Aarhus Compliance committee Directive obligations can be enforced in domestic courts Complaint to Commission

Publicity for decisions and reasons Obligation to publish screening decision, final decision and reasons and considerations for it. Aarhus and Art 10 A No express requirement to publish decisions but implied. Aarhus

Obligation to implement Aarhus requirements on access to justice EIA Directive, 10A Aarhus doesn’t apply to Habitats but CJEU has stated that it should!

EU Commission No requirement to get Commission’s consent for permitting significant adverse effects on environment Obligation to notify compensatory measures Obligation to get EU Commission’s “opinion” on the reasons of OPI justifying plan or project affecting priority site or priority species. Art.6.4