Questions and Answers on the Commission’s proposal for the revision of EU law on environmental impact assessments

Brussels, 26-10-2012 — /europawire.eu/ — Questions and Answers on the Commission’s proposal for the revision of EU law on environmental impact assessments

1. What are the shortcomings of the current legislation?

Under the Environmental Impact Assessments (EIA) Directive, any project that is likely to have significant effects on the environment has to be studied carefully before it is approved. This helps minimise any negative impact on the environment, and avoids problems in the longer term. The Directive needs to be updated to reflect the lessons learned over the past 25 years.

The EIA Directive is a crosscutting environmental policy tool which gives environmental and socio-economic benefits, but also has a number of shortcomings (e.g. implementation gaps, weaknesses due to the essentially procedural character of the Directive, inconsistencies and overlaps leading to delays and costs). This is the conclusion of a detailed analysis carried out by the Commission on the application and effectiveness of the EIA legislation across the EU, done on the basis of a two-year process of data collection and extensive consultation of stakeholders and the public.

Three shortcomings in particular need to be addressed:

• Insufficient operation of the screening process (a mechanism which determines whether an environmental impact assessment is required for projects listed in Annex II to the Directive). There are large differences across the EU in the way the screening process is carried out. Consequently, in some Member States a high number of EIAs is carried out, sometimes for projects with minor environmental impacts. This creates unnecessary administrative burdens. In other Member States, certain projects with significant environmental impacts escape the EIA requirement. Failures to correctly apply the screening process constitute the most significant and recurring problem, as they represent a high percentage of infringement cases initiated by the Commission. This loophole has to be fixed to ensure that all projects that affect the environment do get the assessment they need.
• Insufficient quality and analysis of assessments: the ability to make valid decisions on the environmental impact of a project depends to a large extent on the quality of the information used in the EIA report and the quality of the EIA process. The Directive sets essentially procedural requirements, quality criteria and standards for information provision whereas the EIA process as such is exclusively left to the national authorities. This often results in a lack or poor quality of EIA data and analysis (including on new environmental topics such as climate change, disaster risks, or biodiversity), which make their way into the EIA reports and lead to ill informed decisions. Good data and decisions, by contrast, increase the social acceptance of projects, avoiding costly delays and litigation.
• Risks of inconsistencies (within the EIA process itself and in relation to other legislation). As the EIA Directive has not been significantly adapted since 1997, there are risks of overlaps with assessments required under other EU law (e.g. Industrial Emissions Directive (IED), Habitats Directive, Strategic Environmental Assessment Directive), which can lead to a duplication of costs for developers and public authorities. In addition, as the Directive does not specify time-frames for the individual steps of the process, the time spent in carrying out the assessments may vary greatly – the average duration of an EIA ranges from 5 to 27 months. Too short time-frames for public consultation may hinder social acceptance of projects and too long ones may generate additional costs. These divergences can generate significant uncertainties, socio-economic costs and unnecessary administrative burdens for business and public authorities.

2. Why does action have to be taken by the EU?

As the legal framework already exists at EU level, it has to be updated at EU-level. Action solely at the national level could increase discrepancies and hamper the functioning of the internal market.

Action at EU level also brings added value because of the transboundary nature of environmental issues and projects, for example in fields like energy and transport.

The new EIA Directive will have the potential to address new issues and emerging challenges that are important to the EU as a whole, in areas like climate change, biodiversity, disaster prevention and resource efficiency. It will contribute to the objective of smart and sustainable growth.

3. What are the objectives of the revised directive?

The general objective to adjust the EIA Directive to developments in the policy, legal and technical context over the past 25 years. It aims to correct shortcomings, reflect on-going environmental and socio-economic changes and challenges in the legislation and align it with the principles of smart regulation. The revision will also take into consideration the relevant case law of the Court of Justice.

Two specific objectives can be considered as essential for the revision of the EIA Directive.

• To strengthen the quality of the assessments with new and/or improved provisions. In this regard: the content and the justification of the screening decision will be clarified; the content and the justification of the EIA report and the final decision will be specified; and the Directive will be adjusted to new environmental challenges (e.g. climate change, biodiversity, disaster prevention, resource efficiency).
• To improve coherence and synergies with other EU laws and simplify procedures. To achieve this, the various environmental assessments will be streamlined and timeframes for the various stages of the EIA process will be introduced.

4. What is the Commission proposing in the new legislation on Environmental impact assessments for projects? What exactly will change?

The new directive improves and clarifies the screening process, i.e. the procedure for determining whether a project should be subject to an environmental impact assessment. The streamlined screening procedure will ensure that only projects with significant environmental effects are subject to an impact assessment, such as projects using or affecting valuable resources, projects proposed for environmentally sensitive locations, or projects with potentially hazardous or irreversible effects. For instance, impacts on human health and natural resources should be considered during drilling for shale gas exploration projects.

The proposal strengthens the rules for the EIA procedure to ensure that they lead to better decisions. The scoping stage (which defines the scope of the assessment) will become mandatory, for instance. This will bring more certainty and improve the quality of the assessment. In parallel, a quality control mechanism of the data contained in the EIA report will be introduced.

The impacts of projects relating to new environmental challenges (e.g. impacts on climate change and biodiversity, measures to address risks from natural and man-made disasters, etc.) will be assessed, contributing to a better protection of the human and natural environment.

Assessing reasonable alternatives for projects will become obligatory and monitoring will be required for projects that appear to have significant negative effects on the environment. Competent authorities will be asked to better justify their final decisions.

Finally, the various stages of the EIA process will also be streamlined and further harmonised to ensure more legal certainty. In particular, timeframes will be introduced for key steps of the EIA process, as well as a mechanism to facilitate the assessment process when several assessments and permits are required.

By doing this, the Commission’s proposal focuses on the three key problems identified during a two-year review process. Data was collected through studies and an extensive consultation with stakeholders and the public (information about the data collection and consultation exercises undertaken is available on http://ec.europa.eu/environment/eia/home.htm).

5. Who will benefit from the changes proposed and how?

All citizens will benefit from better, more transparent environmental assessment procedures, as these will improve project approval decisions and avoid damage to public health and the environment.

Industry will benefit because simplified and streamlined environmental assessment procedures will reduce costs, ensure a level playing field and lead to more sustainable projects.

A clearer legal framework will help public authorities at national, regional and local levels make sound decisions.

6. What are the expected environmental and health benefits of the proposal?

The various amendments strengthening the quality of the data used in the EIA reports and the quality of the EIA process are expected to bring significant health and environmental benefits. Amendments like mandatory scoping, assessment of alternatives, monitoring and quality control of EIA information will improve the quality of EIA reports, reduce the gaps in the environmental information and provide robust evidence for the final decisions on the projects.

The mandatory assessment of reasonable alternatives, for instance, will improve the environmental design of projects, identify the most efficient use of natural resources and provide better information for decision-making.

Information in EIA reports on impacts on additional environmental issues will help reduce greenhouse gas emissions, increase resilience to disasters, reduce environmental damages due to climatic events, halt biodiversity loss, and contribute to savings in the use of natural resources.

7. What is the expected impact of the proposal on the simplification and reduction of administrative burden?

Current legislation on environmental impact assessments for projects is sometimes inconsistent and may also cause delays. The new Directive will provide a clearer, more coherent and simplified legal framework. It will also reduce administrative costs (both direct costs and costs due to delays), most notably by simplifying and further harmonising the screening and EIA processes.

8. When is the proposal likely to enter into force?

The proposal for a Directive on the assessment of the effects of public and private projects on the environment will now be sent to the European Parliament and the Council to be adopted through the co-decision procedure. It is expected to enter into force in March 2014, depending on the progress of the legislative process.

9. What are the objectives and provisions of the current EIA Directive?

The aim of the EIA Directive is to ensure that projects which are likely to have a significant effect on the environment are adequately assessed before they are approved. Hence, before any decision is taken to allow such a project to proceed, the possible impacts it may have on the environment (both from its construction or operation) are identified and assessed. Developers can then adjust projects to minimise negative impacts before they actually occur, or the competent authorities can incorporate measures to avoid, reduce or compensate environmental impacts into the project approval.

The Directive also ensures early public participation in the environmental decision-making procedures. In particular, members of the public concerned must be given the possibility to comment while all options are still open to the competent authority, i.e. before a final decision is taken on the request for development. When approving a project, the competent authority is required to inform the public, including on the measures envisaged to avoid, reduce or compensate environmental impacts.

10. Are there any concrete examples of environmental benefits related to EIAs?

Several studies have been carried out on the costs and benefits of the EIA Directive. The most recent one contains examples of environmental benefits based on case studies¹. Some of them are listed below:

• Transmission line of 400 kV in Hungary: minimisation of possible damage to local forests, rivers and streams (e.g. planting new forests) and the local landscape; the protection of local birds and other protected species (e.g. setting up artificial nests); taking extra care during construction in Natura 2000 areas.
• Development of a new quarry in Germany: The impact on water resources including surface and groundwater was assessed during the EIA procedure. The EIA led to the preservation of a watercourse, which was rerouted. The impacts on nearby residential developments were a particular issue and formed a significant part of the consultation and decision-making process; this included noise, dust and vibrations from explosions, which were addressed through conditions on the operations of the quarry (e.g. restricted hours during which explosions can take place). Because of its location in an area of environmental and recreational value, impacts on nature and landscape were addressed through mitigation and compensation measures, covering recreational use of areas around the quarry (e.g. through changes in the pathway systems and planting of trees).
• Reconstruction of a Ring Road in Poland: The construction project included environment protection facilities, among which: passages for animals under the road; storage and filtering reservoirs with installations for pre-treatment of rain water including separators; parking lots outside forest areas; a durable game fence visible for animals, isolating road from the forest; and non-transparent noise screens.

All studies are available at http://ec.europa.eu/environment/eia/eia-support.htm

See also IP/12/1158