This chapter aims to touch on the fundamental questions of this thesis. It is structured into two parts: In 3.1 I will look into the standing of EIAs in the three member states in question; it should demonstrate differences in the implementation of the EIA into the clearance procedure of a project. In 3.2, I will investigate differences in four different features in the formal practices of EIAs in the three different countries. These features are: (1) The way in which the objectives of the EIA are stated; (2) the screening legislation; (3) the detailed structure and outlay of the EIS; and (4) the formal clearance criteria as they concern the relevant authorities.

3.1. Implementation of EIA into the general clearance procedure

The UVPG of Germany describes the standing of the EIA in Part 1, article 2, paragraph 1: “Die Umweltverträglichkeitsprüfung ist ein unselbstständiger Teil verwaltungsbehördlicher Verfahren, die der Entscheidung über die Zulässigkeit von Vorhaben dienen. […] Wird über die Zulässigkeit eines Vorhabens im Rahmen mehrerer Verfahren entschieden, werden die in diesem Verfahren durchgeführten Teilprüfungen zu einer Gesamtbewertung aller Umweltauswirkungen zusammengefasst“ (Ref. 33). This limits the scope and relevance of the EIA significantly: It aims to assess environmental impacts, but the results of the EIS will only contribute the clearance decision. Furthermore, the insights derived from the EIA will be only one of several proceedings (“Verfahren”) contributing to the clearance decision. The relevant authorities have an obligation to take the result of the EIA into consideration for the final decision; however, a negative outcome of the EIA does not necessarily mean that the project will be stopped. The German EIA is not a legally binding instrument, its outcome lacks a “materielle Rechtswirkung” and will be reviewed in combination with other assessments, surveys and opinions.

Another important aspect of the German UVPG is the role that the federal provinces (Länder) play; this is demonstrated in the screening decisions, which are – under certain conditions - made on the regional level: “Die Länder regeln durch Größen- oder Leistungswerte, durch eine allgemeine oder standortbezogene Vorprüfung des Einzelfalls oder durch eine Kombination dieser Verfahren, unter welchen Voraussetzungen eine Umweltverträglichkeitsprüfung durchzuführen ist […]” (article 3d). In article 4, the UVPG is submitted by subsidiarity to other national and regional laws: “Dieses Gesetz findet Anwendung, soweit Rechtsvorschriften des Bundes oder der Länder die Prüfung der Umweltverträglichkeit nicht näher bestimmen oder in ihrem Anforderungen diesem Gesetz nicht entsprechen. Rechtsvorschriften mit weitergehenden Anforderungen bleiben unberührt.“ The UVPG therefore defines minimum standards similar to the EIA directive; nevertheless, it does not lead to a legally binding, single proceeding in the way EIAs are done elsewhere (see below). This weakens the importance of the EIA significantly and gave rise to criticism (Ref. 60) as well as a wide-spread mocking in Germany: “UVP = Unheimlich viel Papier” (the acronym interpreted as “a hell lot of paper”).

Nevertheless, the UVPG has led to significant simplifications in project clearance procedures and in effect, it does help to reduce several individual proceedings into a single, centralised one. This, however, applies only in some cases and is arranged through the section in article 2 quoted above; as well as the combination of sub-proceedings for a final report (required according to article 11) and by defining one authority as the main one to decrease the bureaucratic efforts involved (article 14): “Bedarf ein Vorhaben der Zulassung durch mehrere Landesbehörden, so bestimmen die Länder eine federführende Behörde […] Die federführende Behörde hat ihre Aufgaben im Zusammenwirken zumindest mit den Zulassungsbehörden und der Naturschutzbehörde wahrzunehmen, deren Aufgabenbereich durch das Vorhaben berührt wird.” This central authority has to provide for the orchestration of individual sub-proceedings.

The UVP-G of Austria is a great deal more straight-forward than its German equivalent with respect to its implementation: The EIA is one centralised proceeding, from which a legally binding clearance is either derived or not. Article 3 paragraph 3 states in this context: “Wenn ein Vorhaben einer Umweltverträglichkeitsprüfung zu unterziehen ist, sind nach den bundes- oder landesrechtlichen Verwaltungsvorschriften, auch soweit sie im eigenen Wirkungsbereich der Gemeinde zu vollziehen sind, für die Ausführung des Vorhabens erforderlichen materiellen Genehmigungsbestimmungen von der Behörde (§ 39) in einem konzentrierten Verfahren mit anzuwenden (konzentriertes Genehmigungsverfahren)“ (Ref. 5). This central proceeding takes all relevant legislation into consideration, the UVP-G provides the framework and main legal foundation. The administration of the proceeding is done by the relevant regional authorities (Landesregierung).

The EIA regulations of England and Wales define conditions rather similar to those in Germany; the EIS is only one in several proceedings that a development project might have to undergo in the course of its environmental assessment. This environmental assessment is centrally administered on the level of counties, but the EIA does not automatically take prevalence over other proceedings that are also part of it. The relevant authorities are only obliged to take the EIA into consideration in the clearance and planning permission procedure: “The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.” (Ref. 39).

Typically, the local planning authorities are the administrative bodies dealing with developments that fall under the EIA regulations. However, these concern only town and country planning projects: “Therefore there are separate pieces of legislation (and some non-legislative processes) covering EIA for other types of developments including highways, power stations, water resources, land drainage, forestry, pipelines, harbour works and many others” (Ref. 61). Similar to the situation in Germany, the British EIA and its legal implementation in the development process has been criticised for being too complicated and thus inefficient or even arbitrary: “The legal and procedural background to EIA is complex […] the quality of ES can be surprisingly poor with developers often keen to do the least possible to get the application through” (Ref. 61).

3.2. Implementation of EIA aspects into national legislation

3.2.1. Objective and definition of a project (see §1 Austria)

The objective of the UVPG of Germany is stated in article 1, under the self-explanatory heading of “Zweck des Gesetzes”. It extends to both projects and programs, of which environmental impacts should be assessed and documented before the start of this project. In a second step, the results of this assessment should be considered for the clearance of these projects and programs. Article 2 deals with definitions; this includes a statement on the objectives of an EIA in paragraph 1 that matches with the definition given in the EIA directive: “The Environmental Impact Assessment includes the identification, description and assessment of the immediate and long-term impacts of a project on (1) human beings, including human health, animals, plants and biological diversity; (2) soil, water, air, climate and landscape (3) cultural goods and other economic goods as well as (4) the interactions between these goods” (Ref. 33, own translation).

The definition of project (“Vorhaben”) follows in paragraph 2 of the same article 2. This paragraphs refers to the catalogue of criteria in annex 1 and differentiates between two categories: new developments and the alteration of existing developments.

The objective of the UVP-G of Austria is stated in article 1 and significantly more detailed than is German equivalent (Ref. 5). It is sub-divided into two paragraphs, of which the second only refers to relevant EU legislation (such as the EIA directive) that underlies this law. The first paragraph states the objectives of the EIA and has four subsection: (1) lists the goods that an EIS must include in almost the same wording that the German law uses; (2) states that the EIA requires the evaluation of measures that decrease negative environmental impacts or increase positive ones resulting from the project; (3) states that the EIS must discuss the assessed alternatives and their environmental impacts; (4) states that projects that might lead to a compulsory purchase (“Enteignung”) of landowners must discuss alternative routes or locations.

The definition of project (“Vorhaben”) follows in article 2, paragraph 2. Effectively, it is defined as any change of nature and/or landscape. It includes all concerned side-action and can extend to several locations or actions if they are part of the same spatial and material context (“in einem räumlichen und sachlichen Zusammenhang stehen”).

The objective of the EIA regulations of England and Wales is not stated in a separate article, but contained in the introductory paragraph, which states that the regulations were concluded “[…] in relation to measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment […]”. In further detail, the objectives can only be derived from the regulations themselves.

The definition of project (“development”) is not done in principle manner, either; it rather follows the classification provided in the annex: “EIA Development means development which is either (a) Schedule 1 development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. These mentioned schedules 1 and 2 correspond roughly to the list of criteria in annexes I and II of the EIA directive. The heading of Schedule 1 is accordingly “Descriptions of development for the purpose of the definition of ‘Schedule 1 Development’”. It is very clear and essentially a qualitative list of project types; Schedule 2 is more descriptive and gives thresholds and other criteria. It is worth noting that “project” is therefore not defined as a theoretic entity, but rather based on observable criteria.

3.2.2. Screening legislation

In the entire procedure of EIAs, the screening is probably the most sensitive area that grants member states and even the individual authorities in charge a great deal of discretion. Screening has therefore been subject of criticism and at the centre of debates on harmonisation (Ref. 62; Ref. 63): “Diverging screening methods and, most important, different legal and administrative EIA frameworks, necessarily lead to a heterogeneous day-to-day EIA practice throughout the European Union. This varied application of the EIA Directive results in different project types being subject to EIA, either due to their non transposition to the national EIA regulations or to different inclusive criteria or adopted thresholds. Furthermore, the set of criteria considered in case-by-case assessments chiefly depends on regional specificities and, to a greater or lesser extent, to discretionary judgement of the competent authorities” (Ref. 28).

In principle, one can distinguish between two different approaches to screening (Ref. 64; Ref. 65; Ref. 66): (1) Based on policy guidelines that define selection criteria of a project, and (2) based on preliminary evaluations in order to determine potential environmental risks. Accordingly, either lists of projects and specified thresholds or case-by-case evaluations are at the core of screening procedures, although combinations of these two principle routes are also possible. The latter is the case in all three countries examined in this thesis; all three rely on project lists as well as specified criteria for projects that have to undergo a case-by-case assessment (see chapter 2.2 to 2.4).

The table in figures 3.1 to 3.2 gives an overview on screening methods employed in all EU member states (except for Luxemburg) (taken from Ref. 37). Germany, Austria and the United Kingdom were highlighted, some regional specificities were removed to simplify the table.

Figures excluded

Fig. 3.1: Overview screening methods and bodies according to MS (Ref. 33).

Fig. 3.2: Overview screening methods and bodies according to MS (Ref. 33).

Fig. 3.3: Overview screening methods and bodies according to MS (Ref. 33).

The UVP-G of Germany contains minimum provisions for screening, but some additional regulations of the 16 Länder go beyond these for specific types of projects (Ref. 33). The relevant section of the UVP-G is primarily annex 1, where a two-column table specifies project types and thresholds. It differentiates between three possible classifications: (1) EIA mandatory in all cases; (2) case-by-case assessment in the screening phase (“general screening”); (3) site-related screening conditions (if environmentally sensitive or particularly valuable areas are likely to be affected by the project, a general screening is required). For the general screening procedures, the criteria specified in annex 2 apply.

The UVP-G also includes cumulative projects (for example, an extension of several factories that are spatially close to each other and/or belong to the same person). For cumulative projects, all contributing aspects are summed up and taken into account for the screening (see article 3). There is an additional provision for the Federal Government, which may include projects into annex I if they have a high potential to cause environmental impacts. An exclusion is only possible as far as the EIA directive permits, with national defence and security projects being the only exception (article 3).

A review of the national screening procedures in the EU has found four different types of projects which are included in the UVP-G even though the EIA directive does not require them (Ref. 37). These are the construction and operation of: (1) an installation for the biological treatment of waste requiring special monitoring; (2) an installation for vulcanising natural or synthetic rubber using sulphur or sulphur components; (3) monorail routes; (4) community and public facilities that fall under the regulations of the German Flurbereinigungsgesetz.

The UVPG of Austria also combines lists with case-by-case evaluations. Projects with mandatory EIAs are defined in annex I, which is sub-divided into three columns: (1) EIA mandatory; (2) simplified EIA (“Vereinfachtes Verfahren”); (3) threshold values that oblige a project for an EIA in certain areas, which are listed in annex II (special protection areas, Alpine areas, water protection and conservation areas, areas affected by air pollution and settlement areas).

Similar to the German law, cumulative effects are taken into account by collectively looking at all sub-projects that contribute to a development; however, the decision for or against a simplified EIA is then made by the authorities based on a case-by-case assessment, but only if the capacity of the project exceeds 25 percent of the threshold. The same applies to column 3 projects (protected areas) and project modifications that go beyond the threshold criteria. These are listed in the annex as well as article 3, paragraph 4. Special provisions apply to roads, railways and other line projects; as well as for water management projects.

A review of the national screening procedures in the EU has found three different types of projects which are included in the UVPG even though the EIA directive does not require them (Ref. 37). These are the construction of: (1) Particle accelerators; (2) new installations for work with biological working substances of certain risk classes that are intended for production purposes; (3) new installations for work with genetically modified micro-organisms of certain risk classes on a large scale.

The EIA regulations of England and Wales are the most important, but not the only law for EIA screening in this region. Special regulations for sectors such as forestry or the construction of major roads might also apply to certain projects. The screening methods as such, however, do not diverge significantly from those applied in Germany and Austria, they are also based on a combination of criteria lists and case-by-case evaluations. Projects are categorised in schedule 1 and schedule 2, which correspond roughly to annex I and annex II of the EIA directive: Schedule 1 projects are obliged to undergo an EIA, schedule 2 projects only if they exceed defined threshold values or if they are situated near sensitive areas; however, they are obliged to undergo a compulsory screen. All projects have “exclusive thresholds”: If they undercut these values or criteria, the relevant authorities can grant permission without an EIA.

A peculiarity of the British screening and scoping procedures is the formalisation of early involvement of local planning authorities in the EIA process. As explained in the EIA regulations’ part II, project owners have the right to ask authorities on their opinion in the classification of the project before the EIS or any other application document is submitted; the authorities are then obliged to express this opinion within a set time frame and refer to the regulations and official guidelines. Once the screening opinion has been adopted it is placed on the Planning Register of the relevant district or borough council. The project owner may then appeal against this opinion at the Secretary of State.

A review of the national screening procedures in the EU has found 14 different types of projects which are included in official guidelines for EIAs in the UK even though the EIA directive does not require them (Ref. 37). These are the following: (1) Demolition and decommissioning work; (2) redevelopment and clean-up of contaminated land; (3) vegetation management and conservation enhancement; (4) control of pest species, including disease vectors; (5) deliberate introduction of non-native and genetically modified species; (6) intensive horticulture, including greenhouses; (7) sea outfalls; (8) petrochemical industry – offshore developments, including exploration; (9) restoration of mineral extraction sites; (10) business parks (e.g. office buildings or repairs or servicing facilities); (11) angling and sport fishing, including fish stocking; (12) industrial estates for light manufacturing; (13) kennels, catteries and stables; (14) vehicle parks and park-and-ride schemes.

3.2.3. Structure and scope of EIA practice

By “structure and scope of EIA practice” I mean the minimum of information that has to be included in the EIS according to article 5 of the EIA directive and the related annex IV. This part of the EIA legislation has been included into the national law in almost identical phrasing and is very concise. I have therefore decided to include the original legal text in the following table of figure 3.2, thus approaching the issue from the opposite direction than in chapter 3.2.2., where I have emphasised the divergences only. I have re-arranged the cells and thus the order of the individual paragraphs to make them comparable, but the legal text of all three countries as well as the EIA directive are complete and unaltered.

A few things about the highlighted divergences are particularly noteworthy and will be discussed in detail later on in chapter 5. Most importantly, the detailed obligation for a project description is significantly more detailed and stricter in the case of the Austrian UVP-G than requested by the EIA directive or shown in the other two countries. This includes an extension of the waste and residue assessment to the construction phase; as well as three additional points (immissions; energy consumption and sources; project duration, aftercare, documentation and auditing).

Germany’s explicit mentioning of compensation measures as a mitigation tool or remedy is also noteworthy. Such compensation measures might be the construction of ponds as a compensation for building a road across migratory routes of amphibian populations and are commonly employed in all member states. However, they are not specifically named in the EIA directive, nor in the other two national laws. Similar things can be said about Germany’s emphasis on the requirement that the non-technical summary has to be understandable for laymen and include the necessary information one needs to grasp if he or she will be affected by the project. This, too, is common practice in all member states and in fact the very idea of a non-technical summary.

In the assessment of alternatives, Austria explicitly mentioned roads and other line projects (“Trassenprojekte”); this is more or less a technicality and done because the EIA of line projects follows slightly different procedures than “regular” projects (see chapter 2.2). Another detail is the Austrian specification that the assessment of methodologies, limitations and caveats can be “short”, which appears nowhere in the EIA directive and highlights a rather moderate interest of the otherwise strict Austrian legislative in this matter.
3.2.4. Criteria for a clearance

The criteria for a clearance (the granting of permission for the project or a “passing” of the EIA) is given in a very concise manner in article 8 of the EIA directive, which comprises of a single sentence: “The results of consultations and the information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure”.

Article 9 then obliges the authorities to publish its decision to the general public and – in case of a project with predicted transboundary effects – to other affected member states, alongside with three pieces of information: (1) The decision and relevant conditions; (2) the reasoning behind the decision, with special emphasis on the participation of the public in the decision finding; (3) a description of the required mitigation measures. This does not touch on the clearance procedure or criteria for a decision per se, it only defines the requirements around formal procedures around the clearance.

The UVPG of Germany defines formalities and clearance criteria in article 12, article 13, and – for the special case of more than one authority being involved with the EIA – article 14. The basis for a clearance is a consolidated report (“Zusammenfassende Darstellung der Umweltauswirkungen”), which is to be made according to article 11. It comprises of the environmental impact statement as made by the project owner, comments by the public and the contributions of the authorities. It can be made within the process of giving the reason for a clearance or rejection of the project.

The clearance requirement as such is concisely defined in article 12: “The responsible authority assesses the environmental impacts of a project on the basis of the consolidated report and considers this assessment for a decision on the clearance of the project with respect to an effective environmental protection policy according to article 1, paragraph 1, line 2 and 4 and within the limits of the valid laws” (own translation).

Article 13 deals with advance notice (“Vorbescheid”) and partial clearances. They are bound to the completion of the EIA; however, only the relevant parts of the EIA are to be considered for a partial clearance. Article 14 deals with EIAs in which more than one authority is involved. In such a case, one authority is declared the leading one (“federführende Behörde”) by the Länder. Only in matters involving nuclear material, the leading authority is by default the nuclear safety authority.

The UVP-G of Austria is significantly more detailed than its German equivalent and goes far beyond what the EIA directive asks for with respect to clearance: Article 17 makes up the legal basis for decisions on an EIA. The first paragraph states that the conditions for clearance stated in the following paragraphs 2 to 6 must be used (not just “taken into consideration”).

Paragraph 2 is sub-divided into three sections: (1) Emissions of pollutants are to be limited using the best available technology (BAT). (2) Immissions for all protected goods are to be kept at the lowest possible level. Immissions must be avoided in any case if they endanger life or health, property or other economic goods of neighbours; if they lead to a lasting pressure on the environment and if they could cause lasting damage to soil, air, plant or animal populations (“Pflanzen- oder Tierbestand”) or the state of the water bodies (“Zustand der Gewässer”); if they lead to an unacceptable nuisance for neighbours (referring to another law). (3) Waste has to be avoided employing best available technology, or to be recycled, or – in cases where the former are economically not feasible – to be disposed in accordance with the appropriate regulations.

Paragraph 3 refers to specific projects from annex I and special requirements for those; they fall under additional legislation, such as the regulations on immissions, which have been demonstrated to be particularly rigorous in Austria (Ref. 63).

Paragraph 4 obliges the authorities to consider the results of the EIA with all its constituent components for a clearance. A high degree of environmental protection is to be achieved by the employment of a range of measures: Limitations, conditions, deadlines, modifications of the project, compensatory measures, auditing and control mechanisms, demolition regulations and others.

Paragraph 5 gives a condition for rejecting the project: If the EIA identifies severe environmental pressures that occur through the project and the resulting interactions, culminations or realignments, which can neither be avoided nor reduced to a bearable level through limitations, conditions, deadlines, regulations, compensatory measures or modifications.

Paragraphs 6 to 8 are on formalities regarding timeframes, objections, publication and other procedures concerning the clearance. Article 18 deals with partial clearances. In total, one can identify paragraph 2 as the most precise and crucial one when it comes to clearances; paragraphs 4 and 5 are more elaborate, but also more general. Further discussion can be found in chapter 5.

The EIA regulations of England and Wales deal with clearance and the formal duties that are concerned with it for the relevant authorities in Part VI (“Availability of directions etc. and notification of decisions”). It states which documents the authorities require, when and how to publish them and defines duties to inform the Secretary of State of final decisions. Article 21 obliges the authorities to “make available for public inspection […] a statement containing […] the content of the decision and any conditions attached thereto […] the main reasons and considerations on which the decision is based; and […] a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development.” However, the clearance criteria as such are not explicitly stated.

Formal criteria are only indirectly given through applicable regulations regarding environmental standards and through the objective of the EIA regulations. Even the relevant passage of the official EIA guide for developers does not go any further than the EIA directive does: “In determining the application, the authority is, of course, required to have regard to the environmental statement, as well as to other material considerations. As with any other planning application, the planning authority may refuse permission or grant it with or without conditions” (Ref. 67). The clearance criteria are therefore a lot less clearly outlined and give much more discretion to local authorities than the Austrian equivalent and is more similar to the relevant section of the German UVPG.

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