Almost 30 years ago, the EIA Directive 1, was introduced in Europe.
Since then, the EIA Directive became the subject of many cases of the European Court of Justice. To this day, the Directive has only been revised to a limited extent. These revisions were mainly related to the implementation of international conventions concerning access to information, public participation in decision-making, and access to justice in environmental matters (the Aarhus Convention) and environmental assessment in a transboundary context (the Espoo Convention).
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The European Commission issued a proposal on 26 October 2012 to amend the EIA Directive to keep it up to date. The purpose of this proposal focuses on three areas: quality of the environmental impact assessment, screening, and integration with other European legislation. In addition, some lessons were learned from the implementation of the EIA Directive, which resulted in a variety of amendments.
On 12 March 2014 the European Parliament adopted a legislative resolution on the amendments proposed by the European Commission. Many of the Commission’s proposals were eventually modified or rejected.
On 14 April 2014 the Council of the European Union adopted the proposal to amend the EIA Directive (“the Amendment”).
On 25 April 2014 the Amendment was published in the Official Journal of the European Union.
The transposition of the Directive may take a while: Member States were given a transposition period of three years (until 15 May 2017).
We have examined the main trends of the Amendment and in particular what will be the expected consequences of these trends for Belgium in each of the three regions.
1 Quality of the environmental impact assessment
The main objective of the proposed amendments is to improve the quality of the (EIA or screening) assessment process and the relevant documents.
1.1 A broader study of alternatives
The current EIA Directive is rather flexible when it comes to the study of alternatives for a project. Article 5, paragraph 1 (d), read together with Annex IV, paragraph 2 of the EIA Directive, states that the following information is mandatory: “an outline of the main alternatives studied by the developer and an indication of the main reasons for this choice, taking into account the environmental effects”.
The new Article 5, paragraph 1 (d) indicates which alternatives need to be studied:
“a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment.”
Henceforth, according to Annex IV, paragraph 2, alternatives now refer to “project design, technology, location, size and scale”. Alternatives concerning the location are thus explicitly added. The wording no longer refers to “main” alternatives but now rather “reasonable” alternatives. The words “alternatives studied by the developer” are to be interpreted broadly, and they actually relate to the alternatives that the developer should have studied. The interpretation of the EIA Directive needs to be done teleologically and derive from the objectives of the European Union, namely a high level of protection and improvement of the quality of the environment 2
Also, the phrase “and the specific characteristics” adds an implicit, yet certain, standard level to the study of alternatives.
The change to the wording concerning alternatives seems to make it possible for the competent authority3 to impose a duty on the developer to study extra alternatives, even those concerning the location.
The situation in which the competent authority questions the boundaries of the developer’s project or the project itself does not seem possible, in our opinion. A “scoping” - which is meant to set the boundaries of the assessment - is not taken up as an obligation for the Member States.
Through implementation measures, Member States will have to ensure a broad interpretation of the concept of alternatives, including in terms of location. In some cases, changes of the national legislation will be required.
In the Flemish Region there is already an administrative practice to involve alternatives in the investigation on the planning level. Besides, this is an obligation under the Flemish legislation. Based on the approved Amendment, the practice (on the project level), where no alternatives relating to the location are taken into account because the developer often has only a particular land position to realize his project, will come to an end.
In the Brussels Capital Region, both the Brussels Planning Code (the “CoBAT”) and the Order of 5 June 1997 concerning the environmental permit (the “OPE”) already state that environmental impact studies should contain a comparison of the “reasonably possible” alternatives—including, in some cases, the abandoning of a project—as well as the environmental impact assessment and an indication of the main reasons for the option chosen by the developer. Both pieces of legislation require that an environmental impact report should contain “an outline of the main alternatives” studied by the developer and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment. Neither the CoBAT nor the OPE explicitly mention that the alternatives or substitutes must also include alternatives relating to the location. In practice, the environmental impact assessment will not always examine this type of alternative. The Brussels Parliament will need to change the texts of the CoBAT and OPE in order clarify the subject of reasonable alternatives that need to be considered by the developer.
In the Walloon Region, both the environmental impact note as well as the impact study must contain an outline of the main alternatives studied by the author of the impact study or the developer and an indication of the main reasons why the option had been chosen with respect to the effects on the environment. However, the Walloon Environmental Code does not use the word “reasonable”, nor does it stipulate that the study of alternatives must also cover the location of the project. In practice, alternatives relating to the location are not systematically examined in the Walloon Region. At this point, the Walloon Environmental Code will need to be modified in light of the transposition of the Amendment.
1.2 New assessment criteria in the environmental impact study
The Amendment changes Annex IV, paragraph 4 of the EIA Directive. By doing so, the following factors likely to be significantly affected by the project need to be involved one by one in the environmental impact assessment (hereinafter: “EIA”):
“population, human health, biodiversity (for example fauna and flora), land (for example land take), soil (for example organic matter, erosion, compaction, sealing), water (for example hydromorphological changes, quantity and quality), air, climate (for example greenhouse gas emissions, impacts relevant to adaptation), material assets, cultural heritage, including architectural and archaeological aspects, and landscape.”
The assessment factors of human health, biodiversity, land and land take are new. The climate factor should be given special attention because further in Annex IV the description of the project’s effects on the climate and the project’s vulnerability on the climate change now becomes a compulsory part of the assessment. The expected significant adverse environmental effects of the project arising from "the vulnerability of the project to risks of major accidents and/or disasters that are relevant to the project concerned" must also be described. The recent events in Fukushima have probably led to this expansion.
Biodiversity is already a criterion for the environmental impact assessment in the Flemish Region. The environmental safety reporting instrument (“omgevingsveiligheidsrapportage” or “OVR”) already provides for certain activities the mapping of risks of major accidents and/or disasters. Climate, on the other hand, is in Flanders still not an individual assessment criterion for environmental impact assessment. Other assessment criteria will undoubtedly require implementation and lead to additional research concerning environmental impact assessments.
The Brussels Parliament has always applied a broader interpretation of the notion of “impact” than what the EIA Directive reads. Article 127, paragraph 2 of the CoBAT and Article 3, 15° of the OPE define the effects of a project as the “direct and indirect, temporary, casual and permanent short- and long-term impact of a project on” the people, flora and fauna, soil, water, air, climate, noise, landscape, energy consumption, urban planning, built heritage, the social and economic domain, the global mobility and the interaction between these factors. To adequately transpose the Amendment into Brussels law, the Brussels Parliament will need to expand the notion of “impact” to human health, biodiversity and land, and land take. These factors are currently not mentioned in the CoBAT and OPE.
In the Walloon Region, the impact assessment relates to human beings, fauna and flora, soil, air, water, climate, landscape, immaterial heritage, cultural heritage and the interaction between these factors. Human health, biodiversity and land are not yet covered by the Walloon Environmental Code. At this point, the Walloon legislation will need to be completed to cover these.
1.3 Quality control through competence requirements for experts and avoiding conflicts of interest
The Amendment does not impose an obligation for Member States to recognize experts, who draft the EIA. The European Commission proposed a mandatory accreditation system, but the European Parliament feared that the introduction of such a system in all Member States would be too expensive. Apart from the obligation that the report should be drawn up by competent experts, the completeness and quality of the EIA must be ensured through the disposition of or the access to sufficient expertise of the competent authority to investigate the EIA. The competent authority will, if necessary, request the developer to provide additional information in accordance with Annex IV, which is relevant to contribute to a motivated assessment of the significant environmental effects of the project (new Article 5, paragraph 3 (b) and (c) of the EIA Directive).
Furthermore, additional guarantees are introduced to avoid conflicts of interest. When the competent authority is also the developer of the project, there must be an appropriate separation between the conflicting authorities so that they can perform their respective duties with complete independence.
According to the European Parliament, quality control and independence are in this way adequately ensured, even without a system of recognized experts.
In the Flemish Region, there is already a system of accreditation of experts. In practice, experts already assist the competent authority (“dienst Mer”). Moreover, the competent authority can demand additional research by issuing certain directives. The recognized experts are obligated to remain strictly independent. This requirement of independence does not apply to the developers of a project who are competent authorities themselves. At this point, a refinement of the legislation seems necessary.
In the Brussels Capital Region there is also already a system of accreditation of the authors of impact studies; however, the accreditation criteria could be tightened in order to ensure that the authors are of high quality. It is not required that the impact report be drawn up by a recognized expert. The applicant may prepare the report by himself. In view of this, the Brussels legislation should be changed to reflect this, i.e., to ensure that the impact reports are also drawn up by competent authors. Neither the CoBAT nor the OPE state that the competent authority must ensure that it has, or has as much access as necessary, sufficient expertise to examine the environmental impact study of the impact report. In addition, both texts do not contain a provision concerning the conflict of interests. In view of these points, the Brussels legislation need to be changed to address these issues.
The Walloon legislation provides the possibility to hire a recognized expert to carry out an impact study. As in the Brussels Capital Region, it is recommended that the criteria be strengthened to ensure that the authors are of high quality. Concerning conflict of interests, there is already a system in which one can object to the author of the study if the objecting party’s independence is being jeopardized. It is not explicitly mentioned that the competent authority must ensure that it has, or has access as much as necessary, sufficient expertise to examine the environmental impact study. In view of this, a change of the Walloon legislation seems necessary.
In both the Brussels Capital and Walloon Regions, the competent authority can already request additional information from the permit applicant, including information concerning the impact assessment. Finally, the legislation of both regions need to be changed because in situations where the competent authority is also the developer, at least an appropriate separation between conflicting functions must be implemented.
1.4 The reasons for final decisions
The competent authority’s assessment of the potentially significant environmental effects of a project needs to be justified (see Article 5, paragraphs 1 and 3 (c) and 8a, paragraphs 1 (a) and 6 of the EIA Directive). It is greatly important that the reasons for the decision on the potentially significant environmental effects are still relevant at the time the permit being granted. The decision on the screening also needs to be especially justified (see 2.2).
In the Flemish Region justification/reasoning is a general principle of proper motivation of administrative acts. Also, the Act of 29 July 1991 on the formal motivation of administrative acts states that an administrative act must mention the legal and factual considerations that have led to the decision. Moreover, this motivation needs to be adequate. The reasoning needs to be sufficient, accurate, and certain. Therefore, it does not seem necessary to further implement the Amendment to comply with the obligation to state reasons for the decision. The same applies to the Brussels Capital and Walloon Regions where the obligation to state reasons of the decision, with regard to the environmental impact assessment, is indicated in Article 190 CoBAT, Article 55 OPE and Article D.64 of the Walloon Environment Code.
1.5 Mandatory post project monitoring
The first objective of the environmental impact assessment consists of informing the competent authority beforehand about the environmental impact of a project. The role of the environmental impact assessment is now being extended to the phase of the realisation of a project. Article 8a, paragraph 4 of the EIA Directive now states that Member States need to “determine the procedures regarding the monitoring of significant adverse effects on the environment”.
This provision needs to be read together with Annex IV, paragraph 7 of the EIA Directive. Annex IV now states that the EIA needs to contain the following information:
“A description of the measures envisaged to avoid, prevent, reduce or, if possible, offset any identified significant adverse effects on the environment and, where appropriate, of any proposed monitoring arrangements (for example the preparation of a post-project analysis). That description should explain the extent, to which significant adverse effects on the environment are avoided, prevented, reduced or offset, and should cover both the construction and operational phases.”
It concerns a so called post project monitoring. Measures envisaged to avoid or prevent significant adverse effects need to be checked on their effective implementation, during both the construction and the exploitation. Combined with the obligation to impose sanctions, the EIA Directive becomes a more powerful instrument: effects on the environment will now need to be described accurately.
The Flemish legislation on environmental impact assessment is subject to environmental enforcement. Non-compliance is therefore subject to certain sanctions. Measures to avoid or prevent significant nuisance are imposed by the environmental permit as a special condition. The control on these measures is a duty of the environmental inspection services. The post project monitoring requirement will only be adequately guaranteed if the results of the environmental assessment will be taken into account in the permit.
In the Brussels Capital Region, conditions on preventing, minimizing, and, if possible, compensating any significant effects on the environment can be imposed on the permit applicant. Non-compliance with these conditions is sanctioned administratively and criminally. Contrary to plans and programs, both the CoBAT and the OPE do not provide a mechanism for the monitoring of the significant adverse effects of a project on the environment. Given this, a change of the Brussels legislation is necessary.
In the Walloon Region, the competent authority can also impose conditions in the permit. Non-compliance with these conditions can have administrative and criminal sanctions. However, the Walloon Environmental Code does not mention the monitoring of significant adverse effects of the environment of the project. The Code will have to address this.
2 Screening and decisions on screening
The term “screening” is not defined in the EIA Directive. It concerns a process that aims to determine whether an EIA is required for projects listed in Annex II of the EIA Directive. Even after the Amendment, screening remains a part of the permit decision. There are some important changes to note on two levels.
2.1 Screening information and screening criteria
A new Annex IIA of the EIA provides a list of information that the developer of a project needs to provide at the moment of screening. Previously, this was not provided.
In Annex III, the list of criteria for screening was expanded. Some striking new criteria are the effects on the climate, biodiversity, and risks of accidents and disasters. Both the list of information as well as the criteria for screening looks impressive and seem to imply that some kind of “mini-EIA” needs to be drawn up with the corresponding cost. However, the competent authority needs to decide as soon as possible and within a period of time not exceeding 90 days (Article 4, paragraph 6 of the EIA Directive).
The Flemish Region will need to adjust its legislation concerning the “project-screening” in order to include the modified criteria, the list of information that needs to be delivered, and the decision period of 90 days4.
In the Brussels Capital Region, all projects listed in Annexes I and II of the EIA Directive are subject to environmental impact assessment in the form of an impact study or an impact report. While no specific implementing measures will need to be taken, the CoBAT and the OPE require changes so that they take into account the modified criteria listed in Annex III of the EIA Directive.
In the Walloon Region, the screening mechanism is based on the environmental impact assessment note. The Walloon Parliament must ensure that the contents of this document contain the information as set out in Annex IIA of the EIA Directive. The period within which the competent authority must decide whether or not to draw up an impact study is 15 days. This is much shorter than the 90 days indicated in the Amendment. At this point, the Walloon legislation already comply with the Amendment. However, the Walloon Environmental Code will need to be modified considering the changed criteria in Annex III of the EIA Directive.
2.2 The duty to state the reasons for the assessment of the screening is sharpened
The screening process must ensure that an EIA must be carried out only if significant environmental effects can exist (consideration (27) of the Amendment).5
The Court of Justice leaves no doubt that a decision on screening needs to be duly justified 6 . The question why screening would suffice for a certain project instead of a EIA needs to be justified by in writing.
Article 4, paragraph 5 of the EIA Directive now states that the decision whether to draw up a EIA, on the basis of screening, shall be made available to the public and be justified as follows:
a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or
b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.
If after screening no EIA needs to be drawn up, explicit reasons need to be stated. This is not new.
What is new is the explicit reference to (i) the features of the project (meaning the design) or (ii) the envisaged measures to avoid or prevent (not reduce) significant adverse effects on the environment, if they are proposed by the developer. The obligation to duly justify the decision will undoubtedly have consequences for the post project monitoring (described in 1.5). After all, a reference to the design and/or the planned measures will result in the obligation to implement this design and/or these measures later on in the project.
In the Flemish Region there will be foresight on the sharpened duty concerning the reasoning of the decision. At this moment, the authority that grants the permits merely decides - on the basis of the submitted screening memorandum and in compliance with the criteria of the decree of 5 April 1995 concerning general provisions relating to environmental policy - whether an EIA is necessary.
The Walloon Environmental Code does not impose explicitly an obligation on competent authorities to indicate the main reasons in their decision whether or not to make an impact study. In view of this, the Walloon legislation should be modified.
3 Intregration with other european legislation
An attempt was made to align more closely with procedures in other European legislation. From out of the original proposal of the European Commission to obligate a maximum integration, only a very trimmed-down version remains.
Firstly, the European Commission argued that a “one stop shop” would lead to more efficiency and a decrease in costs. It was originally intended to make the integration compulsory in the fields of water, fauna and flora (appropriate assessment). Parliament, however, has retained the “one stop shop” only as a possibility, although an obligation seems to be stipulated relating to the adequate assessment deriving from the Birds and the Habitat Directives. Therefore, Belgium will not need to change its legislation at this point. In addition, a minimum period of time is introduced for the organisation of the public consultation. The public should have a period of 30 days within which they can formulate objections and/or observations on the (proposed) EIA.
The Flemish and Walloon legislation already stipulate that a public consultation period is 30 days. At this point, the existing legislation does not require that this period be adjusted. In Brussels the public consultation period is 15 days. This needs to be extended to 30 days.
4 Changes based on experiences from the previous implementation
Finally, some aspects of the Amendment are inspired by the practical experience with the EIA Directive and by caselaw of the European Court of Justice.
4.1 No change in the definition of a “project”, or is there?
The definition of the term “project” under het EIA Directive remains unchanged. A “project” refers according to Article 1, paragraph 2 (a) of the EIA Directive to “the execution of construction works or of other installations or schemes” or to “other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources”. Subsequently, a proposed project needs to be tested under Annexes I and II. Annexes I and II were not changed, nor can they be changed by the European Commission through delegation.
The suggestion of the European Commission to also mention demolition works under the definition of a “project” was turned down.7 However, demolitions works and its effects are now included in the EIA or in the screening (see Annex IIA, paragraph 1 (a) and Annex I, paragraph 1 (b) and IV, paragraph 5 (a) of the EIA Directive). In this way, demolition works can still be part of an environmental impact assessment. It is notable that also the suggestion of the Commission to add the exploration of shale gas to the list of projects was not followed by the European Parliament.
Even though the definition of the term “project” is not changed, one still should also into account the European Court of Justice 8 broad interpretation of categories of projects.
This does not change much for Belgium. After all, the Court of Justice’s interpretation of the EIA Directive imposes itself on Member States anyway.
4.2 Collection of data and electronic availability of environmental information
The European Parliament emphasizes on the availability of electronic information. Each Member State needs to set up a central portal or a point of access “at the appropriate administrative level” in order to grant the public access to the relevant information in an easy and efficient way (Article 6, paragraph 5 EIA Directive).
The optional electronic availability of the information that is subject to public consultation, such as the application of a permit with the related project-EIA, becomes mandatory and happens in an early stage and, at the latest, as soon as information can reasonably be provided (Article 6, paragraph 2 EIA Directive). The scope of this obligation is not described in detail.
In the Flemish Region, non-technical summaries of the project-EIA are already posted online together with certain documents from the competent authority. The full texts of project-EIA and the reports of screening are not yet digitally available to the public. In this respect, the Flemish legislation and administrative practice needs to be changed.
The legislation of the Brussels Capital Region do not currently mention which relevant information on impact assessment are to be made digitally available to the public. In view of this, legislation and administrative practice need to be changed to address this.
The Walloon legislation states that the competent authorities must ensure that the environmental information is gradually made available to the public, preferably by electronic means. Existing legislation do not state that the relevant information on impact assessment is made to the public in the context of the public consultation. Given this, changing the existing legislation and administrative practice seems necessary.
4.3 Expansion of the exceptions for defence objectives to civil emergencies and project adopted by national law
The existing possible exception for national defence (Article 1, paragraph 3 EIA Directive) is extended to an exception for the response on civil emergencies. If this is so, no screening will need to take place.
From now on, the new Article 2, paragraph 4 of the EIA Directive allows that certain projects be adopted by national law, except for those concerning the exemption of the provisions related to public consultation, if the objectives of the EIA Directive are guaranteed 9. Member States must report back to the Commission on the application of this provision every two years.
How Member States will use this exception–possibility and to what extent a project adopted by national law will be subject to public consultation are something interesting to look forward to.
Member States need to transpose the Amendment by 15 May 2017. There is some time to implement the changes in national legislation.
The increased control of quality mainly imposes additional obligations on the developers of projects. They need to provide a lot of additional information and take additional assessment criteria into account.
For the competent authorities, tightened obligations are created with regard to screening, justification of decisions, monitoring during the realisation of the project, and digital availability of documents. Member States can voluntarily establish a “one stop shop” or system concerning the accreditation of experts.
For Member States such as Belgium, which have a tradition of widely implementing the EIA and occasionally referring a preliminary ruling to the Court of Justice, some refinement work needs to be done. Other Member States will have to change their legislation to a lager extent.
The many small changes taken together make the new EIA Directive an instrument that grants the public a large amount of participation in project development. The scope and limitation of this participation will need to be assessed by the caselaw of the European Court of Justice and the decisions from the Aarhus Compliance Committee.
- Directive 85/337/EG on the assessment of the effects of certain public and private projects on the environment (afterwards codified to 2011/92/EU).
- Article 3 of the Treaty on European Union and Article 191 of the Treaty on the Functioning of the European Union. A teleological interpretation of the provisions of the EIA Directive is also applied by the European Court of Justice (cf. ECJ 24 October 1996, case C-72/95, Aannemersbedrijf PK Kraajeveld, paragraph 31).
- The “competent authority” is an authority that designates the Member States to perform the duties under the EIA Directive, including both the assessment of an EIA project and a screening. In some cases this may coincide with the authority that needs to draw up the EIA or the screening because this authority is also the initiator.
- The existing legislation was adapted after the condemnation of the UK because it did not comply with the EIA Directive (ECJ 24 March 2011, case C-435/09, Commission v. Belgium). Even the criteria to examine whether a project-EIA is necessary from Annex III of the decree of 5 April 1995 concerning general provisions relating to environmental policy will need to be changed.
- Member States may also set thresholds or criteria to determine when projects need not undergo the obligations of Annex II-projects or the obligation of screening or EIA (new Article 4, paragraph 3 of the EIA Directive).
- ECJ 30 April 2009, case C-75/08, Mellor, paragraph 59.
- The European Court of Justice considers demolition works as a project (ECJ 3 March 2011, case C-50/09, Commission v. Ireland).
- In light of European caselaw related to waste, the “removal” of waste (cf. Annex I(9) of the EIA Directive) also needs to be interpreted in a broad manner. Even the recovery of waste is seen as a removal (see ECJ 23 November 2006, Commission v. Italy, case C-486/04, §§ 40-44).
- This modification tried to anchor the interpretation of the Court of Justice of the existing Article 1(4) of the EIA Directive (see ECJ 18 October 2011, Boxus, joined cases C-128/09 – C-131/09, C-134/09 and C-135/09) in the directive.