ENVIRONMENTAL ASSESSMENT IN FEDERATIONS Forum of Federations Environmental Assessment Conference September 14, 2009

BACKGROUND Purpose: –To provide an overview of EA processes in: Australia, Austria, Canada, Germany, Switzerland, the United States of America and the European Union –To describe interrelationship between EA processes at the federal and constituent unit levels of government

LEGISLATIVE APPROACH Austria, Germany and Switzerland: framework EA legislation implemented by either the federal government or the constituent units Australia, Canada and the USA: federal and constituent unit EA legislation can both apply to same project

LEGISLATIVE APPROACH European Union –Directives issued by the Council of Ministers requiring Member States to implement EA and SEA via Member State legislation –Developed to minimize competitive conditions and to create similar EA requirements among Member States –Directives shaped processes in Austria and Germany and influenced EA in Switzerland

DECISION MAKING Two decision-making models: –Self assessment - Austria, Canada, Germany, Switzerland, USA - multiple decision makers –Single decision-maker - Australia Constituent units generally follow the same model as the federal government - Canada an exception

PROJECTS REQUIRING AN EA Determining which projects require an EA: –Project exclusion list – all projects subject to EA unless excluded by regulation (Canada, USA) – EA required when a federal authority is a proponent, funds, permits or allows use of federal land –Project inclusion list – automatically requires an EA (Austria, Germany, Switzerland, the European Union) –A screening process – a case by case examination (Australia) – EA required for projects initiated by federal government, on or affecting federal land or affecting matters of national significance

PROJECTS REQUIRING AN EA, CONT’D Different approaches result in variation in types and number of projects subject to EA –Federations with exclusion project lists assess more projects –Federations with project lists also specify which projects are to be assessed by each level of government

DEFINING THE PROJECT TO BE ASSESSED In most federations the scope of the project to be assessed is defined by the proponent In Canada and the USA, the scope may be limited by the regulatory or permitting authority to the project component within its mandate Project lists have resulted in “salami slicing” and measures to minimize project splitting

COORDINATION AND COLLABORATION In countries with self assessment, coordination and collaboration among the responsible authorities is a challenge –Canada has a regulation to coordinate federal authorities to improve efficiency –USA following its review of NEPA implementation has developed a handbook on collaboration among federal agencies

COORDINATION AND COLLABORATION, CONT’D In Austria most EAs are conducted by the Länder –Only one” competent” authority for each project; other authorities take part in the review –A consolidated licencing procedure has been developed where one decision is taken dealing with all the legal requirements of the project-no other decision or licence is required In Australia where a single EA decision-making body exists, coordination and collaboration less of a problem

HARMONIZATION EUROPE: –In Austria, Germany and Switzerland, little need for harmonization agreements as framework legislation specifies which level of government will conduct EA –Transboundary EA issues require cooperation and possibly harmonization among countries – the Espoo Convention –European Union EA directive: Evaluations of the directive show that inconsistencies remain among the EU countries in its implementation

HARMONIZATION, CONT’D NORTH AMERICA: –Provinces, territories and some land claim jurisdictions in Canada have separate EA processes –Some 20 States have separate EA processes in the USA –Overlapping jurisdiction has led to harmonization agreements - on a case by case basis in the USA and a national accord in Canada

HARMONIZATION, CONT’D AUSTRALIA: –States and Territories have separate EA processes –Commonwealth government can accredit the sub-national EA processes –EA can be conducted by State and Territorial governments but Commonwealth Environment Minister approves the results –Agreements are also made on a case by case basis for joint assessments

STREAMLINING MEASURES All jurisdictions pressured to improve efficiency –Examples include: USA: transportation and energy projects and Recovery Act infrastructure projects Canada: the creation of a Major Projects Management Office, and recent regulatory changes to exempt certain infrastructure projects; Germany: efficiencies for infrastructure and energy projects Switzerland: modifications 2008 Austria: modifications in 2009 Australia the transition from a self assessment process to a single decision-making body

STRATEGIC ENVIRONMENTAL ASSESSMENT USA – the concept of programmatic reviews in NEPA Canada – cabinet directive on SEA EU – an SEA directive, reflected in Austrian and German legislation Switzerland –developing SEA process Australia – SEA referenced in the EPBCA

CONCLUSIONS Self-assessment model requires effective cooperation among authorities at each level of government - an ongoing challenge Single decision-making model may improve efficiency Federations with project inclusion lists focus on larger projects and conduct fewer assessments Most federations define a project broadly, generally as proposed by the proponent

CONCLUSIONS, CONT’D Federations with framework legislation defining which project will be assessed by each level of government have little jurisdictional overlap Various approaches exist to harmonize federal and constituent unit EA processes Strategic EA and its linkage with project EA is evolving Federations are under increasing pressure to improve efficiency