Explanatory Memorandum to COM(2012)628 - Amendment of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)628 - Amendment of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. |
|---|---|
| source | COM(2012)628  |
| date | 26-10-2012 |
General context – Grounds for and objectives of the proposal
Directive 2011/92/EU i contains a legal requirement to carry out an environmental impact assessment (EIA) of public or private projects likely to have significant effects on the environment, prior to their authorisation. There is consensus that the main objective of the Directive has been achieved; the principles of environmental assessment have been harmonised throughout the EU by the introduction of minimum requirements concerning the type of projects subject to assessment, the main developer’s obligations, the content of the assessment and the participation of the competent authorities and the public. In parallel, as part of the development consent process, the EIA is a tool to assess the environmental costs and benefits of specific projects with the aim of ensuring their sustainability. Hence, the Directive has become a key instrument of environmental integration and has also brought environmental and socio-economic benefits.
After 25 years of application, the EIA Directive has not significantly changed, while the policy, legal and technical context has evolved considerably. The experience with implementation, as reflected in the Commission reports on the application and effectiveness of the EIA Directive, including the latest one published in July 2009 i, has identified a number of shortcomings. In its mid-term review of the 6th Environment Action Programme[3], the Commission stressed the need for improving the assessment of environmental impacts at national level and announced a review of the EIA Directive. In the context of Better Regulation, the Directive has also been identified as a potential instrument for simplification i. The general objective of the proposal is to adjust the provisions of the codified EIA Directive, so as to correct shortcomings, reflect ongoing environmental and socio-economic changes and challenges, and align with the principles of smart regulation.
As the revised EIA Directive can play a crucial role in achieving resource efficiency (e.g. by introducing new requirements for assessing issues such as biodiversity and climate change which are related to the use of natural resources), the proposal is part of the initiatives aiming to implement the Roadmap to a Resource-Efficient Europe[5]. Furthermore, the revision of the EIA Directive subscribes to the Europe 2020 strategy[6], in particular the priority of sustainable growth. The revised Directive can also contribute significantly to the duty of the Union to take cultural aspects into account in all its policies and actions.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATIONS
- Consistency with other policies and objectives of the Union
- Consultation of interested parties
- Result of the impact assessment
- Summary of the proposed action
- Explanatory documents
- Legal basis
- Subsidiarity and proportionality principles and choice of instrument
- 5. OPTIONAL ELEMENTS
The consultation took place in 2010, in line with the Commission’s standards. From June to September 2010, a wide public consultation on the review of the EIA Directive was launched, using a web questionnaire available in all EU official languages. 1365 replies were received (684 from citizens, 479 from organisations, companies and NGOs, 202 from public authorities and administrations). In addition, the Institute of Environmental Management & Assessment (IEMA)[7] sent a contribution (1815 responses) in the form of a survey incorporating a number of the Commission’s questions. The consultation phase was concluded with a Conference (on 18-19/11/2010, at Leuven, Belgium), which complemented the wide public consultation as it looked for input from specialised stakeholders. 200 representatives from the EU and international institutions, public authorities – at national, regional and local levels – industry, environmental organisations, and the academic community were present at the conference. The results of the public consultation[8] and the conclusions of the Conference[9] have provided useful input for the development of the Commission’s proposal.
The Impact Assessment (IA), which is submitted with this proposal, identified shortcomings in the current EIA legislation that lead to unsatisfactory implementation (no provisions that ensure quality of information and quality standards for the EIA process and implementation gaps) and socio-economic costs in the implementation of the Directive. If these problems are not adequately addressed, the Directive would become less effective and efficient and would not be able to ensure the integration of environmental considerations in decision-making. In addition, the socio-economic costs are likely to negatively affect internal market harmonisation. The shortcomings of the Directive can be grouped into three specific problem areas: i the screening procedure, i the quality and analysis of the EIA and (3) the risks of inconsistencies within the EIA process itself and in relation to other legislation.
The IA assessed a number of policy options with the aim of identifying cost-effective measures to address these problems. The outcome has led the Commission to propose a number of amendments, of which the main ones are as follows:
It is proposed to clarify the screening procedure, by modifying the criteria of Annex III and specifying the content and justification of screening decisions. These amendments would ensure that EIAs are carried out only for projects that would have significant environmental effects, avoiding unnecessary administrative burden for small-scale projects.
As regards the quality and analysis of the EIA, it is proposed to introduce amendments to reinforce the quality of the process (i.e. mandatory scoping and quality control of EIA information), specify the content of the EIA report (mandatory assessment of reasonable alternatives, justification of final decisions, mandatory post-EIA monitoring of significant adverse effects) and adapt the EIA to challenges (i.e. biodiversity, climate change, disaster risks, availability of natural resources).
As regards the risks of inconsistencies, it is proposed to specify the time-frames for the main stages required by the Directive (public consultation, screening decision, final EIA decision) and introduce a mechanism, a kind of EIA one-stop shop to ensure coordination or joint operation of the EIA with the environmental assessments required under other relevant EU legislation, e.g. Directives 2010/75/EU, 92/43/EEC, 2001/42/EC.
Nine of the twelve amendments analysed are expected to provide significant environmental and socio-economic benefits without additional administrative costs; moderate savings are also expected. Two amendments (assessment of alternatives and monitoring) are expected to provide high environmental and socio-economic benefits at moderate costs for developers and with limited or negligible costs for public authorities; one amendment (adaptation of the EIA to new challenges) is expected to provide high benefits at moderate to high costs for developers and public authorities. In the long term, the significant environmental and socio-economic benefits and the moderate savings associated with the proposed amendments are likely to exceed the administrative costs.
The proposal will strengthen the provisions concerning the quality of the EIA with the aim of achieving a high level of environmental protection. Indeed, the ability to make valid decisions on the environmental impact of a project depends – to a large extent – on the quality of the information used in the EIA documentation and the quality of the EIA process. Furthermore, the proposal will enhance policy coherence and synergies with other EU law instruments and simplify procedures, with a view to reducing unnecessary administrative burdens.
Specific information on the amended Articles and Annexes of the EIA Directive is provided below.
The changes to Articles 1 i, 1(3) and 1 i aim to clarify the terms of the Directive, based on the implementation experience and the Court case-law. The definition of ‘project’ is amended to make it clear that demolition works are included, in accordance with the Court ruling in case C-50/09; relevant definitions are also inserted. The possibility of not applying the Directive is limited to projects with national defence as their sole purpose and is extended to cover civil emergencies, as it is already the case under Directive 2001/42/EC.
Article 2(3) is amended to introduce an EIA ‘one-stop shop’, allowing the coordination or integration of assessment procedures under the EIA Directive and other EU legislation.
The modifications to Article 3 aim to ensure consistency with Article 2 i, i.e. by referring to ‘significant’ effects, and adapt the EIA to environmental issues (biodiversity, climate change, disaster risks, use of natural resources).
The changes introduced in Article 4 streamline the screening procedure and enhance the consistency of Member States' approaches to ensure that EIAs are required only when it is clear that there are significant environmental impacts. As regards projects listed in Annex II, a new paragraph is inserted concerning the obligation of the developer to provide specific information to the competent authority (detailed in Annex II.A). This Article also allows for specification of the selection criteria listed in Annex III via delegated acts. The content of the screening decision is specified to acknowledge the successful practice of adapting projects under certain preconditions (on the basis of a consideration of the most relevant impacts and information generated under other Union environmental legislation), which can avoid having to conduct a full assessment, as the most relevant environment impacts are satisfactorily addressed by the adapted project. The likelihood of significant effects and the subsequent need for an EIA would take into account the account the nature, complexity, location and size of the proposed project and would be based on objective factors, such as the scale of the project, the use of valuable resources, the environmental sensitivity of the location, and the magnitude or irreversibility of the potential impact. Furthermore, the lessons drawn from the case-law, where the Court stressed the need for 'sufficiently reasoned' (C-75/08) screening decisions, which contain or are accompanied by all the information that makes it possible to check that the decision is based on adequate screening (C-87/02), are taken on board. Finally, a time-frame is set for adoption of the screening decision.
Article 5 is comprehensively modified, with a view to reinforcing the quality of information and streamlining the EIA process. The core requirement for the developer to submit environmental information is maintained, but its form and content is streamlined and specified in Annex IV. The scoping process becomes obligatory and the content of the opinion delivered by the competent authority is specified. Mechanisms are introduced to guarantee the completeness and sufficient quality of the environmental reports.
Article 6(6), which refers to the time-frames for public consultation, is modified with a view to reinforcing the role of environmental authorities and defining concrete time-frames for the consultation phase on the environmental report.
Article 7(5) is amended in order to include the establishment of time-frames for consultations among the issues to be determined by Member States when defining the arrangements for the implementation of projects likely to have significant transboundary environmental effects.
Article 8 is substantially amended and includes several new provisions. Firstly, a time-frame is set for the conclusion of the environmental impact assessment procedure. Secondly, the competent authority is required to include in the development consent decision itself some items substantiating the decision; this reflects the case-law (e.g. C-50/09). Thirdly, mandatory ex-post monitoring is introduced only for projects that will have significant adverse environmental effects, according to the consultations carried out and the information gathered (including the environmental report), with the purpose of assessing the implementation and effectiveness of mitigation and compensation measures. Some Member States already require such monitoring, which should not duplicate that which may be required by other Union legislation (e.g. on industrial emissions or water quality), and it is appropriate therefore to establish common minimum requirements. This new obligation is cost-effective, as it may help to avoid adverse impacts on the environment and public health and costs of reparation, and is relevant for addressing impacts related to new challenges such as climate change and disaster risks. Fourthly, the competent authority is required to verify that the information of the environmental report is up to date, before deciding to grant or refuse development consent.
The main modification to Article 9 is the inclusion of a description of the monitoring arrangements in the information provided to the public when development consent is granted.
Article 12 is amended in order to specify the information required to monitor the implementation of the Directive.
Two new Articles (12a and 12b) are inserted concerning the adaptation of Annexes II.A, III and IV to scientific and technical progress through delegated acts.
Annex II.A, which is a new Annex, sets out the information to be submitted by the developer as regards projects listed in Annex II, for which screening is carried out to determine whether an EIA is required. This amendment is intended to harmonise the screening process.
Annex III, which lays down the criteria used for screening Annex II projects, is amended to clarify the existing criteria (e.g. cumulative effects or links with other EU legislation) and to include additional ones (mainly those related to new environmental issues).
Annex IV contains the items to be considered in the environmental report required by Article 5. The main changes are additional information requirements concerning the assessment of reasonable alternatives, the description of monitoring measures and the description of aspects related to new environmental issues (e.g. climate change, biodiversity, disaster risks, use of natural resources).
The amended Directive contains transitional provisions, which draw on the case-law (e.g. case C-81/96). The EIA should apply to projects for which the request for development consent was introduced before the time-limit for transposition and for which the environmental impact assessment has not been concluded before that date.
The Commission considers that explanatory documents are necessary in order to improve the quality of information on the transposition of the Directive for the following reasons.
The complete and correct transposition of the Directive is essential to guarantee that its objectives (i.e. protecting human health and the environment and ensuring a level play field) are achieved. The EIA is part of the process for assessing and granting development consent to a wide range of private and public projects in the Member States, as either a separate or integrated part of assessment procedures. In addition, the implementation of the Directive is often highly decentralised, as the regional and local authorities are responsible for its application and, in some Member States, even for its transposition. Finally, the codification of the EIA Directive is likely to result in changes to the national measures that transposing progressively the initial directive and its three subsequent amendments. In order to implement the provisions of the revised Directive, which amends the codified version, Member States may have to act in different policy fields and amend a wide variety of legislative acts at national, regional and local levels.
The above factors are likely to increase the risks of incorrect transposition and implementation of the Directive, and complicate the Commission’s task of monitoring the application of EU law. Clear information with respect to the transposition of the revised EIA Directive is instrumental in ensuring the conformity of national legislation with its provisions.
The requirement to provide explanatory documents may create an additional administrative burden on those Member States which do not work on this basis in any case. However, explanatory documents are necessary to allow effective verification of complete and correct transposition, which is essential for the reasons mentioned above, and there are no less burdensome measures to allow efficient verification. Moreover, the explanatory documents can contribute significantly to reducing the administrative burden of compliance monitoring by the Commission; without them, considerable resources and numerous contacts with national authorities would be required to track the methods of transposition in all Member States. Hence, the possible additional administrative burden of providing explanatory documents is proportionate to the aim pursued, namely to ensure effective transposition and fully achieve the objectives of the Directive.
In view of the above it is appropriate to ask Member States to accompany the notification of their transposition measures with one or more documents explaining the relationship between the provisions of the Directive and the corresponding parts of national transposition instruments.
As the primary objective of the Directive is the protection of the environment, in accordance with Article 191 TFEU, the proposal is based on Article 192 i TFEU.
The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the European Union.
The objectives of the proposal cannot be sufficiently achieved by the Member States. The existing legislation sets minimum requirements for the environmental assessment of projects throughout the EU and aims to comply with international conventions (e.g. Espoo, Aarhus, Convention on Biological Diversity). This principle is maintained in the proposal which further harmonises the principles of environmental assessment and addresses inconsistencies. All Member States must take measures to comply with the minimum requirements; individual national actions could impair the functioning of the internal market, as varying national regulation might hamper transboundary economic activities.
EU action will better achieve the objectives of the proposal. Since the adoption of the Directive in 1985, the EU has enlarged, while the scope and seriousness of environmental issues to be tackled and the number of major EU-scale infrastructure projects have also increased (e.g. transboundary projects in the field of energy or transport). Because of the transboundary nature of environmental issues (e.g. climate change, disaster risks) and of some projects, action at EU level is necessary and brings added value compared to individual national actions. The EU’s action will also address issues that are important to the EU as a whole, such as adaptation to climate change and disaster prevention, and has a role to play in the achievement of Europe’s 2020 objectives for sustainable growth.
The proposal therefore respects the subsidiarity principle.
The chosen legal instrument is a directive, as the proposal aims to modify an existing directive. The proposal lays down general objectives and obligations, while leaving sufficient flexibility to the Member States as regards the choice of measures for compliance and their detailed implementation. The proposal therefore complies with the proportionality principle.
The proposal has no implications for the EU budget.
The proposal concerns a matter relevant to the European Economic Area and should therefore be applicable to it.