2.1. The role of Community Law & the EIA directive

The Directive on Environmental Impact Assessments (85/337/EEC), vernacularly called “EIA directive”, was released in June 1985 and amended twice, in spring 1997 and again in spring of 2003. In 2001, it was supplemented with another directive called Strategic Environmental Assessment (SEA) Directive (2001/42/EC). The SEA directive extended the focus of environmental assessments to policies, plans and programs. It plays a limited role for EIAs, which are targeted at projects, and will therefore not be any further in this thesis (Ref. 27). The SEA has been seen as one instance where growing complexity of EIAs has become apparent. For the future, a further branching of scope and application of EIAs has been discussed (Ref. 4; Ref. 28; Ref. 15).

The 13 articles of the EIA directive provide the framework and define the objectives for national legislation on environmental impact assessments. In brief, article 1 is relevant for screening and defines entities such as “project” or “public”; article 2 outlines requirements for screening, scoping and the EIA per se alongside with exceptions; article 3 defines “environment”; article 4 defines criteria for screening and scoping; article 5 defines further conditions for EIAs and obligations for the project owner, it also outlines required sections of the EIA; article 6 regulates the rights for relevant offices to comment on the EIA and requirements to publish information concerning the EIA and clearance procedures; article 7 defines obligations for the member state (MS) if transboundary effects are expected from the project affecting another MS; article 8 states the obligation to consider information collected according to articles 5 to 7 for the clearance; article 9 defines the obligation to publish the reasoning for a clearance and possible conditions; article 10 defines priority for other obligations such as intellectual property rights regarding the directive; article 10a stipulates the conditions for objections; article 11 requires international cooperation in the implementation and development of the EIA legislation; article 12 gives the obligation for MS to implement the directive; article 14 defines the MS as subjects of the directive (Ref. 29).

The EIA itself is preceded by a screening phase that ends with a clarification if an EIA is necessary in the first place. A project can fall into three categories: No EIA is necessary; EIA is mandatory (criteria listed in Annex I); or a need for an EIA needs to be established in a case-by-base evaluation by national authorities (criteria listed in Annex II, arranged according to industries/project types). Annex I often defines thresholds, for example a minimum size – e.g. refineries processing less than 500 tonnes of coal a day do not require a mandatory EIA. Annex II is a lot less clearly defined and confers a great deal of discretion to the member states to demand an EIA or not. Annex III provides some general guidelines in three categories for authorities in charge with evaluating projects in the screening and scoping process: Characteristics of the project; of its potential environmental impact; and the project location.

Annex IV partly re-iterates the formal and structural criteria of the EIS as given in article 5, but are less binding (pre-conditions are laid down in article 5, paragraph 1; they do therefore not apply to all projects undergoing an EIA) and more detailed. In practice, the seven elements of an EIA are followed as stated in this annex as a “default model”; in the scoping phase, the project owner clarifies which aspects of an EIA will apply to that particular project. In the following paragraphs, I will briefly outline the six (according to articles 3 and 5 as well as annex IV) areas of an EIS and highlight the relevant articles.

Description of the environment: A detailed assessment of the status quo of all relevant parts of the environment that might be affected by the project. This assessment is to be divided into human beings, fauna, flora; soil, water, air, climate, landscape; economic and cultural goods; and all relevant interactions between the given aspects. An example would be an assessment of species abundance of farmland birds, woodland birds and passages of migratory bird species on the site of a proposed wind park. Relevant articles: Article 3.

Description of the project: After the necessity for an EIA (screening) has been determined and the relevant constituent sub-sections (scoping) have been completed, an EIA starts with a detailed description of the proposed project, its time-frame and location. This description is often divided into building phase, operation period and decommissioning. For each of these phases, inputs and outputs are listed to identify potential environmental hazards. An example would be noise disturbance during the construction phase. Relevant articles: Article 5, paragraph 3.

Description of effects: The “significant” effects of the proposed project on the environment must be assessed. The term “significant” provides for a great deal of variation in interpretations. An example would be the destruction of habitats and breeding grounds of endangered amphibian or reptile species through open mining. Relevant articles: Article 5, paragraph 3.

Outline of possible mitigation measures: The project owners are obliged to investigate measures to mitigate negative environmental effects. For example, this could be the construction of fish passes in the dam of a run-off-river power plant. Relevant articles: Article 5, paragraph 3.

Assessment of relevant alternatives: Once the project and its constituent aspects have been identified, alternatives can be considered within some aspects or the project altogether. An example would be the construction of a cable car to avoid the construction of a road through a forest. Relevant articles: Article 5, paragraph 3.

General summary and public information: A non-technical summary of the EIA should make public participation easier. The target reader is an informed layman, for example a local resident that is potentially affected by the project, a citizen initiative or an NGO. There is also an obligation of providing relevant information to other EU member states if the project could have a transboundary environmental effect. Opportunities for objecting the project are outlined. Relevant articles: Article 1; article 2, paragraph 3b (if EIA has been suspended); article 5, paragraph 3; article 6, paragraph 2; article 7; article 9; article 10 (concerning objections against the project).

A closing section usually discusses technical and methodological problems and thereby help to assess caveats of the EIA. For example, a particularly strict monitoring regime can be proposed to collect information on individual counts of farmland birds to immediately recognise occurring environmental pressures that can not be sufficiently predicted based on data available at the time when the EIA is done. This assessment of limitations is often presented as a formally demanded seventh step in EIAs and is in fact commonly included, but not required by article 5; it is only included in annex IV and therefore, it is required only under certain conditions.

2.2. National legislation in Austria

The first EIA law in Austria was the “Bundesgesetz über die Prüfung der Umweltverträglichkeit” (abbreviated as “UVP-G”, or, if referring to any specific version, with the year as in “UVP-G 1993”). It came into effect the year before Austria joined the European Community (EC). The amendments of the EIA directive led subsequently to several amendments of the UVP-G (“Novellen”). The current version of the law is the “UVP-G 2000” (Ref. 2) with the most recent amendment made in 2009 (dealing with thresholds involved in screening; this amendment followed a ruling of the European Court of Justice). The Austrian authorities can also utilise various official guidelines, most of which were made for specific types of projects (see Ref. 30, Ref. 31 and Ref. 32 for examples).

In a nutshell, the UVP-G is structured into six sections (Abschnitte) with two annexes: (1) states the objectives of the law and gives some definitions as well as principles of public participation; (2) gives the guidelines for a general distinction between a “regular” EIA and a simplified EIA alongside with criteria to discriminate between them; (3) deals specifically with projects concerning lines (e.g. railway projects); (4) deals with specific rules for projects concerning water management; (5) is on the composition of the Umweltrat (environmental council); (6) is dedicated to authorities, formalities, documentation and auditing, including the very detailed clearance criteria; and finally two annexes. Annex I comprises of a table that is sub-divided into three columns; these give project criteria for screening. Annex II lists criteria for areas of exceptional environmental value and their classification.

2.3. National legislation in Germany

Germany was the first country in Europe to provide a legal basis for EIAs, the relevant law came into effect as early as 1975 (Ref. 14) and thus only six years after the US equivalent of NEPA. The first German law dealing with EIAs according to the EIA directive (“Gesetz über die Umweltverträglichkeitsprüfung”, Ref. 33; abbreviated as “UVPG”) came into effect in 1990. Since then, it has been amended in 2001 and again in 2005. It is a federal law and defines the EIA not as an independent tool with direct legal consequences, but as a tool for clearance (“unselbstständiger Teil verwaltungsbehördlicher Verfahren”). It includes a section for SEAs. There are several official guidelines that the authorities can use for applying the law correctly (for example Ref. 34, Ref. 35, Ref. 36).

The UVPG is structured into six parts: (1) stating the objective, definitions and subjects; (2) the procedure and structure of an EIA, subdivided into two sections (screening; guidelines for the actual EIA); (3) is dedicated to the Strategic Environmental Assessment (SEA) and sub-divided into two sections; (4) dealing with projects that fulfil special criteria (e.g. airports); (5) dealing with line and transmission facility projects; (6) providing information on the legal procedures and applicability of the law.

These six parts are supplemented with four annexes. Annex I lists projects for which an EIA is compulsory; annex II lists criteria for additional projects that make an EIA mandatory under these conditions. These two basically correspond to the EIA directive’s annexes I and II (see above), whereas the other two deal with the SEA: Annex IV lists projects for which a SEA is required; annex V lists criteria for additional projects that make a SEA mandatory under these conditions.

2.4. National legislation in the United Kingdom

In the United Kingdom, there are several laws in place that have a limited geographic scope based on administrative sub-divisions (mainly Scotland, England and Wales, Northern Ireland). The complex nature of EIA law in the UK has historic reasons: “The Government aimed initially at implementing the EIA Directive (Directive 85/337/EEC) within the long-existing planning system, which proved impossible once several project types subject to mandatory EIA according to the Annex I of EIA Directive fell outside existing planning legislation. As a result, the UK implemented Directive 85/337/EEC through a number of sets of regulations, plus a number of amending regulations and associated measures” (Ref. 37, referring to Ref. 38).

For this thesis, I will deal with the most important one, the EIA law for England and Wales. This is the “Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999” (Ref. 39; abbreviated as “EIA regulations”), which was amended repeatedly, including in 2000 (Ref. 40) and 2006 (Ref. 41). To add further complication, there are several other significant EIA laws that apply to the same administrative regions (England and Wales), including two concerning agriculture and landscape (Ref. 42) as well as forestry (Ref. 43). These two laws apply to more specific sectors rather than to general projects and will not be dealt with in further detail. For the sake of completion, additional UK legislation that is potentially relevant for some EIAs has been listed in Ref. 44 to Ref. 55, alongside with some examples for official guidelines that should assist the authorities (Ref. 56, Ref. 57, Ref. 58, Ref. 59).

The structure of the EIA regulations follows a methodological approach and is divided into nine parts with self-explanatory headings, which are given here with a short description of the contents where necessary: (1) General: States objectives, definitions and applicability; (2) Screening; (3) Procedures concerning applications for planning permission; (4) Preparation of environmental statements; (5) Publicity and procedures on submission of environmental statements; (6) Availability of directions etc. and notification of decisions; (7) Special cases: Formal exceptions, supplemented with guidelines for authorities on how they should be treated, including appeals; (8) Development with significant transboundary effects; (9) Miscellaneous: Ranging from guidelines for applications to the High Court to references to law concerning hazardous waste.

These nine parts are supplemented with five annexes called “schedules”: (1) A list of criteria for the classification of a project (corresponds roughly to annex I of the EIA directive); (2) A list of criteria for the classification of projects that do not fall into the category of schedule 1 (corresponds roughly to annex II of EIA directive); (3) A list with selection criteria for screening projects falling into schedule 2; (4) Information for inclusion in environmental statement (structure and contents of EIS; corresponds roughly with annex IV and article 5.3 of the EIA directive); (5) List of statutory instruments revoked by the act.

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