Great differences in the ways of implementing the new EIA Directive – the offerings of the EIALAW 2018 Conference
On the 23rd of March 2018, the most recent developments of the environmental impact assessment (EIA) law were examined at the House of Science and Letters in Helsinki. The main theme of the conference was the comparison of the implementation experiences of various countries concerning the reformed EIA Directive. The European EIA debate was reflected against experiences in Canada. How will EU Member States’ EIA systems work in the renewed regulative environment? What challenges have the states faced and how have they solved them? Has the Directive reform been successful? Organised collaboratively by the University of Eastern Finland, the Finnish Association for Impact Assessment (FAIA) and the University of Liverpool, the conference brought together some 50 experts working in the field of impact assessment from both EU Member States and elsewhere. The main speakers of the event were Member of the European Parliament (MEP) Sirpa Pietikäinen, Professor Kevin Hanna (University of British Columbia) and Professor Thomas Fischer (University of Liverpool).
The opening presentation was given by Professor Ismo Pölönen from the University of Eastern Finland who highlighted the role of the law in setting the framework for the EIA procedure, as well as the weaknesses and strengths of different regulatory strategies. He also emphasised the importance of recognising the external factors influencing effectiveness of EIA system, such as organisational culture and resources.
In her presentation A glance to the past: Experiences in implementing the original EIA Directive, MEP Sirpa Pietikäinen talked about the early stages and fundamental questions of EIA regulation. Pietikäinen put strong emphasis on the EIA process as the best and most effective proactive tool for environmental protection, but added that the “better safe than sorry” type thinking involved is sometimes misunderstood. Often the EIA is seen as prior authorisation for implementing a project and the actual zero option is not even considered. Pietikäinen underlined that the real purpose of the EIA suffers if a project is considered as already clinched and if there are no real alternatives. According to Pietikäinen, instead of a project-oriented EIA, we should examine the assessment of environmental impacts from a broader perspective – at this moment, for example, the EIA is not effectively tied to climate change, which is not due to lack of knowledge but the fact that the point of view in examining environmental impacts stems from political thinking. The relationship between the EIA and climate change should be clarified and the associated mindset should be employed within a wider framework both in terms of time and procedure. However, this will require regulatory changes that will address the questions of how to regulate effectively without losing the flexibility needed and how to ensure high-quality assessment of environmental impacts, not only in large projects, but also smaller ones that are located in sensitive areas?
Professor Thomas Fischer presented a chronological cross-section of the assessment of environmental impacts within the EU in his talk entitled EIA in the EU: past, present and future. Fischer’s address was linked to the current political world situation and the disintegration of the value of information, and he stressed that there are great differences in the assessment of environmental impacts between different EU Member States and also regionally within them. According to Fischer, the EIA process is not very popular in Great Britain despite its efficiency, because it is often juxtaposed with the economy. This is a familiar sore point for Fischer. He stated that the EIA is generally ineffective unless it “hurts”. The EIA’s collision course with economic interests in Great Britain is not the only problem, but the post-truth era and Brexit are also undermining the EIA’s foothold.
A consultant in Great Britain, Josh Fothergill (Fothergill Training & Consulting Ltd) estimated that a large proportion of EIA control will disappear in the UK once the country departs from the EU. Key contribution of Fothergill’s presentation included his observations of how much impact assessments have grown in length. At the early stages of the EIA (1987–1990), impact assessment reports were typically less than 75 pages long but have gradually grown in size and are now up to tens of thousands of pages long. He mentioned that even the abstracts today can be up to 150 pages.
The point of view of a consultant was also heard in the speech by the representative of the Estonian Environmental Research Institute. Charlotta Faith-Elli criticised the competence requirement set by the reformed directive on EIA consultants for the purpose of ensuring the quality of the EIA. According to Faith-Elli, setting competence requirements for EIA consultants is not the most effective way to improve EIA quality, because even a good EIA report prepared by a proficient consultant does not necessarily lead to environmentally sound decisions within the project. The competence requirement may, however, lead to consultants being given the responsibility for a good EIA, even though the real problems lie in the legislation, such as the absence of environmental impact monitoring. Faith-Elli claims that this is what has happened in Sweden.
In the Netherlands, the quality control of EIA processes is handled by the independent Netherlands Commission for Environmental Assessment, and consequently the competence requirement of the revised EIA-directive has caused no changes, according to the Commission’s lawyer, Gijs Hoevenaars. Nevertheless, like Fischer and Faith-Elli, Hoevenaars has recognised a problem concerning the regional variations in EIA procedures – the fact that the Commission’s advice is subject to a charge has led to smaller municipalities finding it difficult to invest in quality control.
Along with Pietikäinen, Docent Jerzy Jendrośka (Opole University, Poland) criticised the excessive streamlining of the EIA process. The objective of the EIA is to offer alternatives for carrying out a project, but this is not achieved in an appropriate way with the “one-stop shop” model. According to Jendrośka, integration would lead to the absence of true alternatives.
Integration has also been found challenging in Estonia where the Natura assessment has been integrated with the assessment of environmental impacts. According to Siim Vahtrus (Estonian Environmental Law Institute), combining the EIA and Natura assessments, which vary in regulation and quality, has led to procedural and quality problems, and the end result has often been disorderly. Instead of integration, Vahtrus emphasised the need to keep the two procedures separate. If the implementation of a project requires both an environmental impact and Natura assessment, more important than integration is the order in which these processes are carried out: first Natura and then the EIA. Judging by the debate this talk caused, opinions about this matter are divided. In contrast, some other EU Member States have found it problematic to keep the EIA and Natura assessment separate.
Based on the day’s presentations, it seems that Germany has had particular difficulties with the EIA legislation and its implementation. According to Postdoctoral Researcher Gesa Geißler (Berlin Institute of Technology), the EIA legislation in Germany has been modernised reluctantly and the discussion about the obligations brought on by the reformed EIA Directive has been weak. Regional differences in the implementation of the EIA are great, and Geißler says that there is no register of pending EIA projects. Article 16(7) of the reformed Directive in particular has been difficult to interpret – what is relevant information and which matters concerning a project should be published? A new development step, according to Geißler, is the establishment of a database for EIA projects, maintained by the federal state. However, no coherent approach has been found for what information on EIA projects will be published in the database, and how.
In his talk, Professor Kevin Hanna examined the prerequisites for an efficient EIA. With an emphasis on the challenges of environmental impact assessment faced in Canada, an essential theme of Hanna’s talk was the position of citizens within the EIA procedure. The majority of the public are unfamiliar with the concept of the EIA procedure and do not understand its purpose. The problems related to this include the lack of opportunities to influence and the general lack of trust in the authorities. One objective of the EIA legislative reform is to tackle these problems. What is essential, however, according to Hanna, is to understand that it is impossible for the EIA to achieve a position where all the parties involved are happy with it. What is more significant, instead, is to understand the possibilities offered by the EIA and to make it into a reliable, transparent procedure with a strong legislative frame of reference and real efficacy in environmental decision-making. The purpose of the new EIA legislation has been to create more opportunities to participate. The perspectives of sustainability and climate change have also been included more strongly than before in the procedure.
The conference day ended with a panel with representatives from nine EU Member States. Under the guidance of the panel chairperson, Professor Fischer, the panelists listed the strengths and weaknesses of the directive from the point of view of their respective countries. The strengths mentioned included, in particular, the screening system becoming clearer, the strengthening of EIA quality control and reasoned conclusions. The weaknesses included, in particular, the assessment of cumulative effects, follow-up and taking the climate change into account, although the reformed EIA Directive is clearly better than its predecessor in terms of the last two mentioned. Slightly surprisingly, some of the qualities of the directive that were listed as weaknesses in one country (such as scoping) were considered a strength in another one.
The day’s talks and the panel discussion as a whole indicated that national EIA systems continue to differ comparatively greatly today and that the requirements set by the Directive have, in part, been understood differently in different countries. This in itself is not surprising. Even after the reform, the EIA Directive is a flexible Directive setting the minimum requirements and many of its wordings are open to interpretations. The Directive gives national variations a fair amount of leeway. Also due to the differences between the Member States, the discussion about strengths and weaknesses remained in part unclear. For example, instead of a one-stop shop, integration may refer to transferring “from seven shops to six shops”. The contexts of the integration of environmental procedures vary from one country to the next.
Some countries seem to have taken the “one to one” approach in the execution, meaning that the minimum requirements of the Directive have just barely been exceeded. The German implementation model as presented by Gesa Geißler, in particular, gave this impression. Some countries, such as the Netherlands, have exceeded the requirements of the EIA Directive some time ago in several respects, and they continue to do so with their approach for the new Directive. Also Finland is among these progressive countries, especially because of its system of liaison EIA authority. In contrast to most other EU countries, the EIA procedure in Finland is coordinated by an authority specialized on the EIA issues.
Written by: Elina Mikkonen, Ismo Pölönen and Kimmo Jalava
The speakers at the EIALAW 2018 Conference consisted of experienced EIA experts from the Netherlands, Great Britain, Canada, Germany, Sweden, Estonia, Poland and Finland. The panel discussion’s participants also included representatives of Slovenia and Malta.