1. The SEA Directive – Implications, Obligations, Strengths and Weaknesses Workshop SEA in Practice Malta, 11 November 2011 Louis Meuleman Unit Cohesion Policy and Environmental Impact Assessments European Commission, DG Environment

2. Outline of the presentation 1.Main achievements and challenges in the implementation of the SEA Directive  Transposition/implementation phases  Examples 2.Impact of SEA on national systems 3.Opportunities for improvement 4.The future of the SEA

3. Environmental Assessment Policies Plans & Programmes covered by SEA Directive (2001/42) Projects (public - private) covered by EIA Directive (85/337/EEC, 97/11/EC 2003/35/EC & 2009/31/EC) Habitats and Birds Directives Water Framework Directive Landfill Directive Carbon Capture Storage Directive IPPC Directive Waste Framework Directive

4. Transposition of the SEA in the EU-27 Delayed transposition of the SEA Directive  Transposition due by 21.7.2004: only 9 of the 25 MS had transposed the Directive (infringement procedures were opened for failure to adopt the legislation transposing the SEA Directive and five MS were condemned by the European Court of Justice).  By 2009, all MS have transposed the Directive.  SEA systems are established and operate in all MS. Still struggling for correct transposition  The Commission checked the conformity of the SEA transposition in the MS.  Infringement procedures were opened for 23 MS (often the problem is the scope of the SEA).  8 still open today…

5. Examples of incorrect transposition of the SEA (1)  National legislation only covers P/P established by a legislative procedure.  Exclusion from the SEA scope of P/P in “small areas at local level” (by reference to big administrative units or criteria).  Failure to transpose all screening criteria of Annex II.  Technical character of the summary (instead of non-technical).  No reference to “reasonable” alternatives and the need to take into account the objectives and the geographical scope of P/P.

6. Examples of incorrect transposition of the SEA (2)  No precise identification of the public.  Lack of concrete designation/timeframes/methods to consult environmental authorities or their exclusion from consultation for some P/P.  Results of consultations to be taken into account after adoption (instead of before).  Lack of concrete arrangements to inform affected MS (before and after adoption of the P/P).

7. Implementation of the SEA in the EU-27 Commission’s implementation experience Different areas:  Legal implementation, i.e. handling of complaints and infringements.  Assessment of OPs (Cohesion Policy)  TENs for energy and transport

8. Implementation of the SEA in the EU-27 Sample of 28 infringement cases

9. Implementation of the SEA in the EU-27 14 infringement cases – plan/programme was outside the rationae tempori scope of the SEA (Article 13(3)) 7 infringement cases – definition of plan/programme:  voluntary plan/programme (i.e. policies)  plan/programme at the top of a hierarchy (not required by law)  private plan, studies 5 infringement cases – screening problems:  no screening at all (mainly urban and land-use plans)  incorrect screening (e.g. no consideration of certain screening criteria). 1 infringement case – environmental authorities to be consulted (Article 6(3)) 1 infringement case – public participation : consultation and information of the public (Articles 6 and 8)

10. Benefits of the SEA Scope of the SEA now more clearly delimited (conditions of Articles 2+3). Integration of environmental considerations into decision making of P&P. “Greening“ of P&P and monitoring of their effects. Strengthened role for environmental authorities through their participation. Better cooperation different authorities (planning, environment and health). Increased transparency in decision making, due to the involvement of all levels of society. Less mitigation measures due to the early inclusion of environmental considerations in the P&P. Contribution of SEA to improved compliance with the requirements of other specific environmental policy areas. Less litigation at project level. Consideration of cumulative effects and of alternatives upstream. Absorption of EU co-financing made easier. => The overall assessment is positive, e.g. in Cohesion Policy

11. Example of the SEA and Cohesion Policy Uncertainties, initially, about the application of the SEA. Problems with the “minor” modification of OPs. Content of the operational programmes clearly influenced by the SEA (environmental requirements taken into account at the planning stage). Relatively low level of public participation in several MS (i.e. tight timetable to adopt the OPs). Environmental authorities were fully involved in the decision-making process. Quality of the environmental reports varied considerably among MS, and in some cases relatively poor.

12. Weaknesses Policies not covered by the Directive: the policies which set the framework of the P&P subject to SEA Directive are not subject to the SEA provisions (coherence with SEA Protocol under the Espoo Convention?). Many P&P are not subject to the SEA provisions:  “not required” by administrative/legislative provisions (e.g. policies) or  not subject to “preparation and/or adoption by an authority” (e.g. private plans and programmes for instance). Concepts to be defined:  P&P which “set the framework”. [ECJ: C-105/09 and 110/09]  “Minor modifications” to P&P.  P&P which determine the use of small areas at local level. Links with other Directives  Projects: EIA [ECJ: C-43/10 and C-295/10, not delivered yet]  P&P: Habitats, Water FD, Nitrates, Renewable… [ECJ: C-43/10 and C-177/11 not delivered yet] Lack of concrete provisions on quality control

13. Impact of the SEA on national systems Institutional/procedural aspects of the impact: Introduction of SEA principles (screening, scoping, consultation, monitoring…) New/strengthened role for environmental authorities through their participation. Better cooperation between different authorities (planning, transport, environment and health). New/strengthened role for NGOs, stakeholders, public.

14. Impact of the SEA on national systems Policy aspects of the impact: Integration of environmental considerations into decision making of plans and programmes. “Greening“ of plans and programmes. Monitoring of the significant effects of plans and programmes. Less mitigation measures due to the early inclusion of environmental considerations in the P&P. Increased transparency in decision making, due to the involvement of all levels of society. Improved compliance with the requirements of other specific environmental policy areas (but multiplication of assessments).

15. Impact of the SEA on national systems Downstream aspects of the impact Less litigation at project level. Consideration of cumulative effects and of alternatives upstream. Absorption of EU co-financing made easier:  Cohesion Policy  TENs (energy-transport)

16. Indicative areas where improvements are needed Scope of the SEA  Policies/legislative proposals (coherence with the SEA Protocol under the Espoo Convention?).  Review the definition of P&P (e.g. “not required” by administrative/legislative provisions). Concepts to be clarified:  P&P which “set the framework”.  “Minor modifications” to P&P.  P&P which determine the use of small areas at local level.

17. Indicative areas where improvements are needed (2) More explicit links with other Directives  Both in terms of substance (assessment) and procedures (e.g. consultation).  Projects: EIA (facilitate interaction – avoid duplication)  P&P from other Directives: Habitats, Water FD, Nitrates, Renewable… Adopt implementing provisions/guidance:  on concepts (e.g. quality control, monitoring of significant effects…)  on themes (e.g. climate change, biodiversity, resources efficiency…) Further guidance needed in particular on climate change and biodiversity  Commission guidance for both SEA and EIA Directives under preparation.  To be expected end of 2011. Capacity building (regional/local plans) Exchange of information within MS.

18. The future of the SEA The Directive is still in its infancy: in the short term too early to propose amendments. Merging the EIA and SEA Directives rejected by MS and stakeholders (clear result from the public consultation in the context of the review of the EIA). Further experience is needed to understand thoroughly its functioning, also in the light of the experience under:  the SEA Protocol of the Espoo Convention.  the case-law of the ECJ. Amendments will be considered in the longer term. Next Commission’s report in 2016.

19. Sources External study concerning the report on the application and effectiveness of the SEA Directive. Commission’s Report on the application and effectiveness of the Directive on Strategic Environmental Assessment (COM(2009)469 final 14.9.2009). The Commission's experience from the implementation and enforcement of the SEA Directive  Handling of complaints and infringements.  Application of the SEA to the EU co-financed programmes for the period 2007-2013.  Application of the SEA to plans/programmes required by the EU legislation (e.g. RBMP, NAP, NREAP…).

20. Thank you for your attention http://ec.europa.eu/environment/eia/home.htm