1.1. Definitions, underlying idea & philosophy of EIAs

In the past 40 years, Environmental Impact Assessments (EIAs) have become increasingly important as a formalised legal requirement for projects in many countries, especially in the developed world (Ref. 1). Environmental Impact Assessments (EIAs) can be defined as "the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken and commitments made." (Ref. 3).

In a slightly more general and practical definition, EIAs can be seen as formalised mean to identify the immediate and long-term effects of a project on the environment – which covers both positive and negative effects. This requires definitions of environment, thresholds (spatial as well as temporal ones, immediate versus long-term) and other terms.

“Project” is defined for the purpose of the EIA Directive (see below) as “the execution of construction works or of other installations or schemes; and other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources” (Ref. 4). Other definitions for the term in similar legislative texts differ only marginally. All matters included in “environment” are covered in many legal texts, including the Austrian EIA law (UVP-Gesetz 2005; Ref. 2), where the term is defined as including human beings; animals, plants and communities thereof (includes biodiversity); soil; water; air and climate; landscape; social and economics goods; as well as all relevant interactions of the listed factors (UVP-G 2005, Ref. 5). “Threshold” has been defined in the context of EIA assessments as “a point of beginning a minimum requirement for further action”, closely linked to “criteria”, which is a standard on which a judgement or a decision is based (both Ref. 4).

The term “impact” is often used synonymously with the term “effect” and has been described as a “change in an environmental parameter over a specified period and within a defined area, resulting from a particular activity compared with the situation which would have occurred had the activity not been initiated”; they include both direct and indirect effects (Ref. 6). A “cumulative impact” results from effects and has been defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what actor undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time” (Ref. 4).

The definition of temporal boundaries is less clearly outlined; since “long-term” does not draw a limit, a clear definition is often seen as being redundant. However, the failure of the most common EIA schemes to establish temporal boundaries within which certain environmental effects occur with a certain likeliness has been identified as a major weakness by many authors and continues to be a subject of controversy (Ref. 7; Ref. 8).

Wathern (Ref. 6) has pointed out the following important observation: “Environmental systems are not static, but change over the course of time even without the influence of man. Some are very dynamic, while others only change imperceptibly. In order to make predictions about impacts, assumptions have to be made about natural change. In order to assess the impact of a development project, for example, it would be necessary also to analyse natural changes in the rate of sedimentation in estuarine system over the same period. In contrast, a description of the present state would probably suffice if the proposed development was situated on a stable hard-rock coastline.”

Wathern also highlights that spatial aspects (where impacts occur) are generally assessed more adequately than temporal (when they occur) ones. Another flaw or challenge to EIAs is the definition of boundaries with respect to high-order impacts. In the most simple system, one can distinguish between direct or primary and indirect or higher order (secondary, tertiary, and so on) effects.

For example, the construction of a road might hinder a certain population of toads from using its traditional breeding ground (primary or direct effect); this in turn could increase the number of insects living in this breeding ground, since the toads would usually feed on them (secondary, indirect effect); the increased insect population could become a welcome source of protein for local birds, whose number would also increase (tertiary effect). This string of effects and interactions can be continued and branch out dramatically. In practice, however, every EIA will define boundaries which will exclude ramifications that go beyond a certain point (for a more detailed explanation of this issue, see Ref. 6).

The underlying idea of EIAs is to provide enough information to plan a project based not only on economic and technological concerns, but to the same extent also on environmental ones. This general concept is described in more detail at essentially all relevant legislations or administrative bodies concerned with EIAs.

The Austrian UVP-G and advisory bodies such as the Umweltbundesamt explain the underlying idea of EIA as such (Ref. 9): To assess, describe and quantify the immediate and long-term effects, their interactions and accumulations of a given project on the environment; to assess measures to mitigate or avoid these effects; to assess the advantages and disadvantages of all relevant alternatives to the project with respect to the environment (including the option of not doing anything); and to assess the advantages or disadvantages of the proposed site for the project (in particular for projects with extended routes, such as the construction of railroads or high-voltage power lines). All that should be achieved with the greatest possible involvement of all parties concerned with the project, for example affected residents or local citizen groups (own translation; Ref. 9).

By adding an EIA to more conventional means of project assessments, the decision on the implementation of a project is based on three pillars: Environmental considerations and questions of sustainability; technological considerations (feasibility within a cost-benefit assessment); and economic considerations (cost-benefit beyond the concerned technology) (see also Fig. 1.1).

Figure excluded

Fig. 1.1: Project assessments with three pillars: Costs and benefits of the project with respect to economic, environmental and technical questions should be assessed. The EIA contributes towards the rather new environmental corner; the other two being the more conventional ones. A weakness of this diagram is the impression that a trade-off always has to be chosen between the three pillars; this is not necessarily the case, especially not if economic values are attributed to the environment.

The aims of Environmental Impact Assessments follow the lines of the objectives and concerned matters outlined above. The Austrian Umweltbundesamt summarises these as such: To avoid damage to the environment based on the precautionary principle; to assess environmental hazards not only in their isolated, immediate effects, but in the long term on the whole environment; to improve the preparation and planning phase of a project before it is legally approved or any permits are granted; and to make the clearance procedures of projects more transparent, public and formalised (Ref. 9; similar in many other reports, mission statements or legislations concerned with EIAs).

1.2. Historic development of Environmental Impact Assessments

The 1960ies saw a rise in environmental awareness (note for example the publication of “Silent Spring” by Rachel Carson in 1962, Ref. 10) and simultaneously rapid progress in formalising means and tools in project management (e. g. cost-benefit analysis). The latter resulted in the development of more rigorous standards for projects, whilst the former fostered the awareness that decisions about projects could no longer be based on economic and technical considerations only (Ref. 11; Ref. 12).

At around the same time, environmental legislation was created for areas such as waste management, pollution control or resource protection. The United States as the leading country in this area introduced the “National Environmental Policy Act” (NEPA) in 1969. When it came into effect in 1970, the NEPA was the most advanced environmental law in the World and became a model for many other countries to follow (Ref. 11). Even the term “Environmental Impact Assessment” is taken from NEPA, which obliged project owners to document risks for potential environmental damage in a formalised Environmental Impact Statement (EIS) and to provide evidence that these risks would be contained (Ref. 11).

Over the course of the 1970ies, an estimated 1000 EISs were submitted every year in the US (in 2006, this number was an estimated 30,000 to 50,000; Ref. 11). Noble (Ref. 11) highlights the pioneering role of NEPA and distinguishes between various phases in the formalisation of EIA. According to this distinction, the 1970ies were characterised by EIAs that were merely used to justify projects that had already started. Only from the mid-1970ies to the mid-1980ies, the methods of EIAs became sophisticated enough to implement thorough data sets. Noble refers to this period as “…devoted to collecting large environmental inventories, i.e., comprehensive descriptions of the biophysical environment…” (Ref. 11). It was this assembly of data sets that led to the introduction of the scoping phase to prioritise relevant areas (see chapter 2).

From the mid-1980ies until the mid-1990ies, physical environmental issues were more immediately linked to social ones. This resulted in increased public participation and the further spreading of environmental legislation on an international level (note for example the WHO’s introduction of a “Environmental Health Impact Assessment” for certain projects in 1987; or the “Earth Summits” of 1992 and 1997) (Ref. 11; Ref. 12; Ref. 13). Noble views the period since the 1990ies as an era in which EIAs spread more in scope than geographically and refers to Richard Morgan, president of the International Association for Impact Assessments when saying: “There may be too many different things expected from EIAs and […] too many different ideas as to what EIA can accomplish”, pointing at the many social, economic, health, sustainability and cultural aspects of EIAs in some countries. He suggests that a branching of EIAs into different kinds of assessments might occur in the future and emphasises the importance of Strategic Impact Assessments (SEA, the application of environmental assessment principles to policies, plans and programs) as a basis or framework for efficient EIAs (Ref. 11). Another current trend is the implementation of EIAs in many developing countries at least for big building projects. There are currently approximately 100 out of approximately 190 countries in the world that have EIA requirements (Ref. 11; Ref. 13).

In the European Union, Germany and France were the first countries to introduce a legal requirement for EIAs in 1975 and 1976, respectively (Ref. 14). Until today, France is the European country with by far the most EIAs done per year (Ref. 11). In 1977, an EIA directive was proposed in the “Second Action Program on the Environment” of the European Community, a proposal that faced fierce opposition: “Eight years of heated debate preceded Directive 85/377/EEC” (Ref. 14).

The “EIA directive” was eventually released in 1985, came into effect in 1988 and obliged all member states to introduce appropriate EIA legislation according to a framework of minimum standards (see chapter 1.3 for information on directives). As a consequence, all MS released the required laws. This period overlapped with the publication of the so-called “Brundtland Report” by the World Commission on Environment and Development in 1987. This report underlined the importance of EIAs for sustainable development: “When the environmental impact of a proposed project is particularly high, public scrutiny of the case should be mandatory and, wherever feasible, the decision should be subject to earlier public approval, perhaps by referendum.” (Ref. 2). These remarks show a exceptional foresight, as I will demonstrate in the section on the Aarhus convention in chapter 2.

In the United Kingdom and Germany, EIAs according to the directive became a requirement in 1990; Austria first introduced EIAs the year before joining the European Community in 1994 (Ref. 11; Ref. 15). Another milestone with tremendous effects on the development and acceptance of EIAs came with the so-called “Rio Summit” of 1992. The “Rio Declaration on Environment and Development” dedicates Principle 17 to EIAs: “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.” (Ref. 16).

The original EIA directive was amended in 1997. The following year, the European Community and its member states signed the “Convention on Access to Information, Public Participation in Decision Making and Access to Justice”, the so-called Aarhus Convention. It entered into force in 1998 and required another amendment of the EIA directive, which was made in 2003. The national laws regulating EIA have been amended repeatedly in various member states (Ref. 11).

1.3. Overview on relevant legislation and environmental law

Environmental law of the EU member states is laid down in a variety of sources. This sub-chapter aims to provide a concise overview on these sources, which include the EC treaty, various directives, regulations and decisions, active international agreements, case law of the European Court of Justice and the Court of First Instance, national legislation and – in some cases – regional or municipal legislation.

EC Treaty: The EC treaty defines the “institutional framework of the European Community and defined institutional powers and procedures to be followed in adopting laws. It enables the institutions to take these forms of legally binding measures” (Ref. 4), which are the three binding instruments of EU secondary legislation: Directives, regulations and decisions.

Directives: They are the most commonly used form of EC legislation and define goals that member states have to meet, but grant to the member states (MS) the freedom to find legal ways to achieve these goals for themselves. Directives have no direct effect in the member states, but create an obligation for the MS to pass national laws that give full effect to the directive within the deadlines defined by it. This is usually two years from the adoption of the directive; the MS then has to inform the commission that it has passed the relevant laws. Then the MS is responsible for enforcing the law. Directives usually define minimum thresholds, MS are allowed to pass stricter legislation than that. However, even if laws meeting or exceeding the scope of the directive are already in place, the MS has to pass laws that implement the directive’s provisions (Ref. 4; Ref. 17). It is worth noting that in some cases practices have been directly derived from EU directives by authorities; it is therefore currently under debate among lawyers if directives have direct effect and if so, under which circumstances this applies.

Regulations: On contrast to directives, regulations have a direct effect on legal entities (individuals or member states) to whom they are addressed. Regulations can be issued by the European Commission and the Council of the European Union. In environmental matters, regulations play a minor role (Ref. 17).

Decisions: Decisions are directly addressed to legal entities (individuals or member states); they, too, can be issued by the Commission or Council. In theory, they have no direct effect; however, in practice and based on case law, they might have direct effect under certain circumstances. In environmental matters, decisions play a minor role (Ref. 17).

International Agreements: The European Community has the right to sign certain international agreements. This is an interesting notion, as it makes the community a subject of international law. Such international agreements will become part of the community law. Three consequences arise from this: “It means that the international agreement can give rise to rights and duties, which may be relied upon by individuals in national courts; decisions of any organisations created by the agreement will also become part of Community law; the European Court will be able to interpret and apply the agreement and decisions of the organisation created by the agreement.” (Ref. 4).

Case Law of the European Court of Justice and the Court of First Instance: This source of Community law is essential for the interpretation of the EC law’s provisions: “Only the European Court can give an authoritative interpretation of EC law or a decisive judgement on whether or not a member state has failed to comply with a provision of EC environmental law” (Ref. 4).

Other sources of international law also play a role for the legislation of EIAs and the projects concerned, but will not be discussed in further details. For the sake of completion, they shall be mentioned here; for a concise review of these directives and international agreements, see (Ref. 4). They include EU directives such as the “IPPC Directive (96/61/EC) – Directive on integrated pollution prevention and control, OJ 1996 No L 257/26”; the “Council Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment”; the “SEVESO II directive – Council Directive 96/82/EC on the control of major-accident hazards, OJ No L 10”; the “EMAS-Regulation (EEC No 1836/93) – Eco Management and Audit Scheme”; the “Habitats Directive (92/43/EEC) – Council Directive on the conservation of natural habitats and of wild fauna and flora”; the “Water Framework Directive (WFD) – Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy”; as well as international agreements such as the “Convention on Biological Diversity (Rio de Janeiro, 1992)”. Three sources of international law that are of particular importance for EIAs will be discussed in the next sub-chapter: Two international agreements (the Aarhus Convention and the Espoo Convention) and a EU directive (SEA directive).

1.4. Sources of International Law of particular relevance

The Aarhus Convention: As a treaty, the Aarhus Convention falls into the category of international agreements listed above. However, due to the immense significance it has for the EIA directive of the EU, I would like to highlight the convention and briefly outline its main contents. According to UN General Secretary Kofi Annan, the Aarhus convention “is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations.” (Ref. 18). The Aarhus Convention was concluded by the Economic Commission for Europe (UN/ECE) and signed in 1998; it came into effect in 2001.

As of 2010, 44 nations have ratified the Aarhus Convention, which regulates mainly three areas: (1) access to information, (2) public participation and (3) access to courts in environmental matters. The Aarhus Convention is generally considered to be the first international agreement that assigns environmental rights to individuals. For EIAs, the three main areas had significant consequences: Article 4 requires projects that are subject to the assessment to publish information; articles 6 to 8 required to allow public participation in various stages of the EIA and the project; article 9 grants the right to every individual affected by the project to object it and take legal action against the project owner if information is not made accessible or if environmental regulations are not met by the project (Ref. 19: Ref. 20). As a result of the Aarhus Convention, the EU’s EIA directive was amended in 2003. The directive itself will be discussed in further detail in the following chapter.

The Espoo Convention is also an international agreement; similar to the previous one, I will deal with it in more detail due to its important impact on EIA legislation and practice. The official name of the convention is quite descriptive of its objective: “Convention on Environmental Impact Assessment in a Transboundary Context”. It obliges its parties to introduce EIA requirements and to notify and consult other parties regarding planned projects that could lead to negative environmental impacts on their territory (Ref. 21). This includes (1) providing the affected party with information on the proposed project; (2) providing the affected party with an opportunity to comment on the project; (3) the consideration of these comments in the decision making; and (4) providing the affected party with information on the decision. All relevant information needs to be made available for the public, in order to include the affected population of the relevant region into the decision making (Ref. 21). The Espoo Convention was signed in 1991, came into effect in 1997 and led to amendments of both EIA directive and national laws of the member states.

The “SEA Directive” (formally “European SEA Directive 2001/42/EC”) was issued in 2001 (Ref. 22). It aims to formalise the strategic environmental assessment as a framework within which EIAs for individual projects would fall. The SEA directive draws its roots from the tendency to tackle EIAs with an increasingly wide, often international scope – it followed the Espoo Convention, which came into effect in 1997 and was supplemented with a “Protocol on Strategic Environmental Assessment” in 2003. Similar pieces of legislation for land use planning have been in place in many countries for decades or even centuries (Ref. 23).

A SEA applies to plans and programmes, not to policies, and should be a basis for EIAs that will deal with individual projects within these plans and programmes. It obliges primarily local and regional governments in areas such as development, transportation or waste management; national programs such as defence plans are generally excluded. The idea is that a SEA would not only help to manage environmental impacts, but also to make EIAs more efficient. Whilst the scope of the SEA therefore differs from an EIA, its structure and methods are rather similar (Ref. 22). Similar to Aarhus Convention and Espoo Convention, the SEA directive required amendments of EIA directive and national law, particularly in new member states. Even though hierarchically, the SEA can be viewed to be “above” the EIA, it follows the model of the already much more established EIA legislation. The closing of any gaps between these two forms of environmental assessment tools within the EU will be an important development in the next years.

1.5 Questions arising from the dual legislation in the EU

As outlined in the sub-chapter 1.2 and 1.3, there are primarily two legislations that are relevant for EIAs in EU member states: The “EIA directive” of 1985 with the two amendments of 1997 and 2003; and the national legislation that aims to meet the objectives of the EU directive and some of the formal requirements defined therein. The community law is often referred to as “acquis communautaire”. The “acquis” takes precedence over all national domestic law, a fundamental principle first established by the European Court of Justice in the case Van Gend en Loos of 1963, where it said in the ruling: “the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights” (reviewed in Ref. 14; Ref. 24). In the ruling for Simmenthal SpA (Ref. 25), the Court of Justice even said in 1978: “any national court must ... apply Community law in its entirety ... and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community law”. This has established a primacy of European Community law that was later also reflected in the European Treaty (Ref. 14).

As explained above, a directive merely defines objectives to be met; within the resulting framework, member states have significant discretion when incorporating the directive into national law; they are only required to avoid conflicts between the two legislations. This has interesting consequences for candidate countries, which must harmonise their national laws with those of MS to be “compatible” with the acquis upon joining the union. The importance of environmental laws has been highlighted by several studies. One particularly interesting finding on Serbia estimates that a staggering “35 percent of the Serbian [a candidate country] legislation that must be harmonised with community law is in the field of environmental protection” (Ref. 14).

With the duality of acquis and national legislation in mind, one can now ask if the regime imposed by the community law might be either too rigorous or too general. It is the objective of this thesis to provide evidence for divergences within EIA laws in member states that call for a harmonisation on the level of community law. Clearly defined standards can help to avoid conflicts with the single European market. If divergences grow too big, market conditions can be distorted among member states and certain sites could be privileged. This could turn into a problem even if the requirements of the EIA directive are fully met. In the light of this, it is worth looking at some basic thoughts when it comes to this discussion:

Firstly, to what extent does the subsidiarity principle of the EU apply? It might well be that stricter legislation in some member states is fully justified and backed by EU legislation, as EU directives generally define only minimum standards and it is up to individual member states to chose if they want to go even further.

Secondly, to what extent would stricter regimes be necessary to meet the objectives? Even if formal requirements in the national laws diverge, the EIA practice based on them might be perfectly sufficient to meet the objectives defined in the directive. In this context it is worth noting that evaluations of the environmental pressure of certain projects were in place long before the EIA directive was issued, often based on environmental regulations on regional or even municipal level (Ref. 26; ref. 7).

Thirdly, there is one question arising that has led to the most lively discussions: Since stricter regimes on the level of community law almost inevitably constrain national legislation, it might create shortcomings in the consideration of regional circumstances. From an extreme point of view, this argument would claim that a complex issue such as the environment can never be directly compared to the same rigorous standards in two different locations or two different points in time. It is therefore necessary to define objectives in a general manner and grant national laws and experts familiar with the location and its specific conditions the freedom to treat every case individually.

For this master thesis, mainly formal criteria were chosen for a comparison of the national legislation. In chapter 2, I will provide an overview on this legislation. In chapter 3 and chapter 4, I will present legal and practical divergences that I have identified. I will finally discuss these findings in chapter 5.

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