5.1. Comparative studies on EIAs in the EU

There are relatively few comparative studies or assessments of EIA legislation or practice in the EU. This might have several reasons: Firstly, the member states are under a strict regime that obliges them to send frequent reports on EIA implementation and practice to the commission. The commission collects this information and typically once every five years, a thorough report is created that is then directed at the European Parliament, the European Economic and Social Committee and the Committee of the Regions. These bodies formally comment on the report. The last time such a report was published was in 2009; the relevant document is a valuable source of information for this thesis (Ref. 23). Member states might see this reporting as a sufficient auditing tool and refrain from engaging in further international assessments.

Secondly, assessments of EIA legislation and practice are often done nationally; such studies, comparisons are usually done only to previous legislation of that particular member state. Comparisons with other member states touch, if at all, only issues regarding transboundary EIAs according to the Espoo Convention. A good example for a national evaluation of EIAs is provided by Austria in the form of a thorough study (Ref. 15) and one of frequent reports by the relevant ministry to the parliament (Ref. 73).

Thirdly, a few independent studies have tried to assess EIA practice in a comparative manner, often based on case law. By far the most extensive systematic and EU-wide assessment of EIA implementation was made in 2009 for the “(IMP)3” report (Ref. 4) that supplemented the 5-year report of the commission. However, even this report concluded with the words: “The research on existing evaluation studies have [sic] shown rather poor results. Except for an evaluation of the performance of the EIA process from 1996, only a few other studies could be found, […]”. In the following paragraph, I will give a very brief overview on the key-findings of those studies that I identified as relevant.

The (IMP)3 report came up with three main issues that, according to the report, would deserve some closer attention and consideration for tackling them on the level of EU legislation: (1) To think about a formalisation and possible exclusion of health aspects from the EIA, so that a health impact assessment might develop into a separate proceeding supplementing a conventional EIA; (2) risk assessment practice might require a harmonisation; (3) screening is done with a great deal of discretion and diverges among member states.

The 2009 report of the commission, which was supplemented by the (IMP)3 report, also dealt with the issue of widely diverging screening practice: “Implementation and case-law show that, when establishing thresholds, MS often exceed their margin of discretion, either by taking account only of some selection criteria in Annex III or by exempting some projects in advance” (Ref. 74). The report also criticises a wide-spread practice in some member states to “salami-slice” projects to take advantage of insufficient screening of cumulative effects. The report concludes with a clear policy recommendation: “Thus, the screening mechanism should be simplified and clarified, for example, by detailing the selection criteria listed in Annex III and by establishing Community thresholds, criteria or triggers (e.g. by comitology)” (Ref. 74).

A highly interesting notion can be found in the next paragraph of the report (3.2), when it recommends to link EIAs to environmental standards rather than thresholds for project criteria and procedural requirements only. For example, a power plant should not be judged based on its emissions only, but rather based on criteria for the surrounding animal and plant communities and their reaction to the emissions. Whilst this should already be the case and is certainly common practice on the three countries subject to this thesis, many EU member states appear to interpret the impacts of pollution differently. The report also criticises the lack of documentation and auditing standards: “There are major differences in the quality of EIA documentation, not only between different MS but also within MS themselves”. The report then deals with the issue of EIA duration: “The lack of provisions in the Directive relating to reasonable timeframe and preferably fixed timeframe for granting development consent, to the duration of the validity of the EIA and to monitoring the significant environmental effects of the implementation of projects is also a cause for concern. Those gaps could be addressed by introducing specific provisions in the Directive” (Ref. 74). Finally, the report touches on problems with harmonising frameworks for public participation, EIAs with transboundary scopes and the coordination of the EIA directive with other EU directives and policies (including the SEA directive).

With respect to my own findings, these two reports provide further support of the view that the screening procedure is among the main sources for divergences in EIA practice. It appears fair to assume that divergences between Germany, Austria and the UK will be negligible compared to countries with much lower environmental standards; it is these countries that are more likely to raise the interest of the commission. In the following paragraphs, I will now discuss my own findings from chapters 3 and 4.

5.2. On the main findings

With respect to the implementation of the EIA into a general clearance procedure (sub-chapter 3.1), Austria seems to be the country that has adopted the most efficient and potentially strictest legislation. The centralised and binding nature of the Austrian EIA proceeding makes the relevant legislation more comprehensible compared to both Germany and the United Kingdom. This might be at least partly accommodated by the relatively small size of Austria; however, it is worth noting that the proceeding itself is administered by the relevant federal state similar to the situation in Germany or the UK. There, however, the arborisation of legislation due to traditional (Germany) or newly discovered (United Kingdom) federalism has led to complex ramifications that constrain the power of any EIA. I therefore conclude that the Austrian implementation of the EIA as the core and dominant aspect of a clearance proceeding increases the significance of the EIA in general.

Sub-chapter 3.2 dealt with four different, more detailed aspects of EIA legislation in national laws: (1) The objective and the definition of “project”; (2) screening; (3) the structure of the EIS; and (4) criteria for a clearance. The findings of this sub-chapter can be discussed individually, even though they seem to draw a rather clear and coherent picture.

Whilst the definition for “project” seems to follow approximately the same lines in all three countries examined, Austria dedicates an unusual degree of attention to the objective of the EIA law. This indicates a very thorough approach of the Austrian legislative bodies, but does not necessarily lead to any definite differences compared to Germany or the UK. There, similar objectives could be derived from other sections of the law. In analogy, there is no fundamental definition for “project” in the EIA regulations of England and Wales; nonetheless, very similar developments will qualify as “projects” in the UK as in Austria (as shown in the section on screening). This “indirect” approach to circumvent definitions could be explained with the importance of case law and rulings in the British legal traditions.

As I found screening to the be among the most crucial issues with respect to discretion problems, and because I have evaluated both legislation and practice of screening, I will discuss this area separately further down. Looking at structure and scope of the EIA, the coherence of the national laws with the EIA directive is remarkable. Even more interesting, however, are the tiny divergences in the German and Austrian law. Germany explicitly allows compensatory measures for negative environmental impacts of a project that cannot be avoided. Even though such measures are common practice in all three countries, the explicit mentioning of such a policy hints at a more liberal application of it in the case of Germany. Further investigations into EIA practice could confirm this. The second German divergence is just a more detailed explanation of the involvement of the public and can not be a source for any significant difference to the directive.

The Austrian legislation is different in the outlining of an EIS structure: It explicitly demands the consideration of construction, operation and decommissioning (including auditing regime) phase; and is a great deal more detailed in asking for immission data as well as data on energy demand according to sources down to the detail of production units (such as machines) and energy flows. Nothing similarly strict can be found in EIA directive, nor in the German or British laws. Here we see a major point where the Austrian EIA law goes far beyond the minimum requirements given by the directive.

Another critical aspect where Austria exceeds both EIA directive and the other two countries in strictness are the clearance criteria. Here, the EIA directive makes only very general suggestions – which both Britain and Germany follow. Austria, where the implementation of the EIA as an independent proceeding makes the EIA a much more powerful instrument in the first place, defines clearance criteria in great detail: It obliges authorities to apply best available technology (BAT) requirements to emissions, immissions and environmental standards. The way waste is to be managed is also clearly defined. Other sections deal with formalities, but these few criteria mean that the permission or non-permission of a project is linked to very clearly outlined conditions – which is not the case in other member states. Even Germany and the United Kingdom, both of which have a long-standing tradition in environmental protection, are a great deal less demanding in this respect.

Looking at practical aspects of EIAs, I quickly found that there are very few studies on this matter; the ones I found were mostly based on poor data or applied dubious methods (e.g. descriptions of individual cases). Reliable numbers are available for the duration of Austrian EIAs, arranged by sector or type of EIA. Similar studies were almost certainly required by the commission from Germany and the United Kingdom; however, the 5-year report of the commission does not reveal any details (Ref. 74) and I did not find any national reports. The legal basis for deadlines is not very useful, either: As shown in the case of Austria, the temporal framework outlined in the law is not met by the actual proceedings and responsible authorities. I therefore have to limit the discussion of this section to the notion that a detailed study on this question, maybe using the data reported by the member states to the commission, could lead to interesting findings.

Looking at the divergences between the legislation of Germany, Austria and the UK, one can see that in more than one of the evaluated criteria, Austria applies significantly more rigorous standards than the other two countries. This is particularly interesting given the fact that neither Germany nor the United Kingdom are known for lax environmental legislation. In this context, however, I have to emphasise that the criteria evaluated in detail were not chosen randomly. I selected criteria that are known to be very strict in Austria and where I thought that divergences were most likely to occur. One shall be careful to draw general conclusions about countries being stricter than others based on the data I have presented in this thesis. There are also a few instances where Austria is less demanding than Germany or England and Wales. For example, the assessments of limitations and caveats is explicitly requested in a “concise” statement; a similar phrase could not be found in the other to national legislations.

5.3. On screening legislation & practice

The comparison of screening legislation is probably the most sensitive area of EIAs with the greatest potential for harmonisation. Interestingly, “additional” (not required by EIA directive) projects that are subject to an EIA that were found in national legislation of Germany, Austria or the UK do not overlap very much; yet, all of them might be covered by the national laws of all three countries without being explicitly mentioned. For example, Austria’s explicit mentioning of particle accelerators does not appear in the German or the British legislation. Nevertheless, as very large developments, particle accelerators might still fall under German or British criteria for a compulsory EIA. Other projects, such as seaside exploration projects, simply do not apply to countries like Austria for geographic reasons. Cumulative effects of projects are taken into account in all three evaluated member states; the recent report of the commission (Ref. 74) must have found the presented deficiencies in this area in other countries. I did not find drastic differences in the screening approach or the defined projects in the three countries.

Noteworthy differences in details include Austria’s requirement to assess projects that involve genetically modified organisms (GMOs). This could reflect the country’s historically caused aversion against genetic engineering. Interestingly, the (IMP)3 report’s interviews with EIA stakeholders demonstrated that including “installations working with GMOs” was – alongside with military practice grounds and golf courses – among the most commonly given projects for inclusion in the EIA directive (Ref. 4).

I doubt that the survey done for the (IMP)3 report can be considered to provide scientific evidence. However, several key-problems in screening practice were demonstrated and highlighted: “(…) ambiguous screening procedures, found in a number of cases (lack of transparency in screening decisions, lack of robust selection criteria); interpretational problems with certain terms and project type descriptions; demand for adequate reference to the actual impacts on the environment in setting thresholds [sic] values; and problems in dealing with cumulative effects” (Ref. 4).

Interestingly, this list was not put together for issues with screening – but as a summary of the main weaknesses of EIA law in general. The authors recommend a harmonisation of screening criteria and an extension of the annexes and thus the list of projects that are subject to EIAs. In fact, this is already a practice that can be seen ever since 1985 and which is likely to continue.

The study also includes recommendations regarding the application of the annexes and identifies problems in “…a lack of accurate interpretation of screening criteria; the need for a closer linkage of thresholds/criteria with the actual impact; need for more guidance as well as more research regarding EIA (screening) practice” (Ref. 4). Whilst the first point can be dismissed as somewhat fluffy, I regard the other two findings to be of key-significance.

Indeed, pollution thresholds often fail to consider environmental conditions sufficiently; emissions within a certain cap can have very different impacts on different ecosystems and it is questionable if decisions on this matter should be left to case-by-case assessments and the judgement of local experts alone (see sub-chapter 5.4). Furthermore, looking at the poor data that I found on EIA practice, I fully support the third point quoted above in its calling for further research on EIA practice.

5.4. Harmony versus Autonomy & further studies

When EIA stakeholders were asked whether they would change the present EIA directive with respect to the screening framework, the majority of them was hesitant in making definite statements on any harmonisation (Ref. 4). The authors of the (IMP)3 report concluded that divergences of EIA regimes were “the result of different contextual factors – administrative (political), social and historical – and thus is not necessarily a problem in itself”. This, in fact, is a neat summary of the main reasons brought up against increased harmonisation of EIA legislations which are brought up in a rather repetitive manner. It lacks only the ultimate argument against central criteria: The need to consider local conditions individually and in a case-by-case manner.

For example, a factory that uses high amounts of water that it pollutes might fall under the same thresholds in Austria and Andalusia (Spain). However, the environmental impact it creates might be negligible in Austria, where water is abundant, but devastating in Andalusia where falling aquifers have been a problem for many years. Harmonised thresholds for water abstraction or pollutant load of the affluent would be useless, a case-by-case examination under consideration of local conditions inevitable. This is exactly what is meant by linking screening criteria to impacts rather than project features – quite likely a trend in EIA legislation that will gain momentum in the years to come.

This may also take pressure off the problems that come with high discretion in the name of subsidiarity and local conditions: As I have demonstrated in this thesis, there are several aspects in EIAs in which Austria has considerably stricter criteria than other member states. It would be a highly interesting question to what extent that imposes a possible comparative disadvantage on Austria and its standing as a business location. Finding evidence for companies actually choosing other locations for that reason and quantifying the cost for the Austrian or any other economy would be very interesting, but methodologically challenging, if not impossible.

An easier approach for further research in this direction would be as assessment of case law: Companies might take legal action if screening remains linked to project features. If these screening criteria are only nationally or regionally applicable and insufficiently linked to environmental pressures, a distortion of a market can be the result. Companies that have to operate under strict regimes might claim their rights regarding equal conditions in a single European market. Case law of the European Court of Justice could provide interesting insights to future developments in EIA law. Alternatively, stake holder interviews similar to those in the (IMP)3 report could be made for comparisons of EIA practice in individual member states.

Especially differences between member states from Western Europe, Mediterranean Europe and Eastern Europe would be interesting: These three regions are historically, economically and geographically/climatically very distinct. I think it would be reasonable to expect greater divergences between countries from these regions than those I found in this thesis. One possible starting point for such an assessment would be the reports of individual member states that go to the commission. These should include data on implementation, legislation, as well as practice of EIAs.

Ideally, a thorough study would include a comparison of EISs: The number and scope of individual opinions; the structure of the EIS; the costs involved and the criteria that experts have to fulfil for being assigned to them. In Austria, there are public databases available that contain information on all completed EIAs (Ref. 75); similar databases could exist in other member states and serve as useful sources for data. EIAs are complex endeavours, like trees with many branches: For this thesis, I could follow only a few. Checking on a few more would be quite interesting, particularly if that would build on my work and extend the focus beyond the law and further to EIA practice.

5.5. Future directions of EIAs

In its response to the commission’s 5-year report on the implementation of the EIA directive last year, the Committee of the Regions stated only a few weeks prior to the completion of this thesis: “(…) in some fields the EIA Directive is in need of improvement, in particular with regard to screening, public participation, quality of data, EIA transboundary procedures and coordination between the EIA and other Directives and policies (…)” (Ref. 76). This statement is interesting, not only because it was made so recently, but also because it is based on a very thorough assessment of data on EIA legislation and practice. Furthermore, it was made by a body with relatively limited interests in the subject and thus it provided me with an unbiased view on the matter.

The report is spot-on when it highlights the main areas for improvement and development with respect to SEA Directive and EIA Directive: (1) Neither directive has succeeded in establishing obligatory environmental standards; (2) both directives still have gaps in issues regarding public participation and transparency; (3) some passages of the two directives overlap; (4) there is a need to link both directives with issues on biodiversity and climate change; (5) the screening mechanism in the EIA directive needs to be simplified, annex III requires new thresholds and criteria, including cumulative aspects; (6) mandatory scoping and a formalisation of the accreditation of consultants have to be established; (7) instruments for auditing and documentation of EIAs have to be developed.

This criticism is very concise and well-grounded; I therefore consider most of the points mentioned to be key-areas for future developments and reforms of the current EIA legislation and practice. Based on my own work, I would include a few more points: (1) I expect a further branching out of the aspects that are covered by formalised assessments; a separation of health and social aspects in the form of a mandatory “health impact assessment” could occur as suggested by the (IMP)3 report (Ref. 28); (2) standardised risk assessment procedures and qualification standards for consultants could be set up; (3) the EIA procedure as a whole could be simplified through better implementation into SEAs (the development of SEA-approved plans and programs is a continuing effort in many member states and should ultimately lead to a framework within which simplified EIAs can take place); (4) screening will remain a key-issue and source for discretion and thus controversy; it is likely that screening criteria will continue to be developed and will probably be increasingly linked to environmental standards. Similar developments can be seen in other environmental directives, such as the water framework directive: There, the ecological state of a water body has replaced emission thresholds or load caps as defined targets.

The EIA directive is now in place for a quarter of a century. These 25 years saw a steady increase in the number and sophistication of screening criteria; the implementation of public participation; and the extension of the scope of EIAs to transboundary effects. Most importantly, however, the EIA directive provided a standardised framework that spread to the new member states and candidate countries, thereby pushing the frontier of mandatory EIAs into a region with previously very underdeveloped environmental awareness. Based on the work presented in this thesis, I expect the next 25 years to be easily as dynamic as the last.

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