Environmental Impact Assessment and Public Participation under EU Law

After having had an overview of climate litigation and public participation in environmental decision-making processes, it is time to go deeper into public participation in decision-making concerning individual large development plans. This article focuses on the Environmental Impact Assessment (EIA) process, and more specifically on its European legal dimension regulated by Directive 2011/92/EU on “the assessment of certain public and private projects on the environment”, with special attention to public participation.

Origins of the Environmental Impact Assessment and role of EIA law

EIA has been defined as the procedure ensuring that the environmental implications of decisions concerning both public and private individual projects (e.g dams, highways or airports, and so on) are taken into account before the decisions on whether to construct them or not (and how) are made. The primary purpose of an EIA is to ensure a high level of protection of the environment: in this regard, those projects which are “likely to have significant adverse effects on the environment” are subject to an EIA for precautionary reasons. An EIA, differently from a Strategic Environmental Assessment (SEA), is undertaken at the individual level for single large-scale development plans. “Memb er States may set thresholds or criteria for the purpose of determining which of such projects should be subject to assessment” or examine projects on a “case-by-case” basis.

Public Participation plays a crucial role in the whole EIA process. It is in fact a prerequisite for and a constant integral part of the construction of large-scale development projects, promoted throughout all the stages of an EIA. As a matter of fact, EIAs became necessary following the increase of local environmental problems and the rise of public attention on these issues. Thus, the demand from the public to participate represented, from the beginning, one of the main reasons why EIAs became the rule.

Legally speaking, an EIA is essentially regulated by national law (more than 100 countries include it in their legal system). The objective of the EU Directive is to establish minimum requirements for EIAs in order to grant a harmonized (and higher) level of protection for the environment and human health.

Key Principles of EU EIA law

The EU EIA Directive follows the objectives of Article 191(1) TFEU, especially of “preserving, protecting and improving the quality of the environment” and of “protecting human health”. Furthermore, it is based on the internationally agreed precautionary principle, the principle of rectification at source, and the polluter-pays principle, which in the EU framework are included in art.191(2) TFEU.

Finally, it is commonly shared among legal systems that an EIA must respect, among others, the principles of transparency; certainty, accountability, and cost-effectiveness.

The EU EIA process and public participation

Rationale behind public participation in EIA

First of all, “public participation in EIAs shall enable participants to develop and exercise their citizenship skills”: the right of citizens to participate is thus part of a democratic process to ensure participation in decision-making and everyone interested in a given project/EIA procedure is invited to participate. Thus, the public must be given, according to Art.6(4) EIA Directive, “early and effective opportunities to participate in the environmental decision-making process”, before the decision is taken. The EU EIA Directive, in its preamble, defines effective public participation as “increasing the accountability and transparency of the decision-making process” and “contributing to public awareness of environmental issues and support for the decisions taken”.

Public consultations, according to Art.6(7) of the Revised Directive, should last at least 30 days and EIA reports have to be understandable to the public.

Projects subject to an EIA

According to Art.4 EU EIA Directive, there are two types of projects that must or might be subject to an EIA. First, in Art.4(1) the Directive demands a mandatory EIA for those projects listed in Annex I, the minimum size of which is specified for each category. Among others, here we find crude-oil refineries, installations designed for the production or enrichment of nuclear fuel, and waste management installations for the incineration of chemical waste. Secondly, Art.4(2) specifies that for those projects listed in Annex II, it is up to the Member States to specify whether or not an EIA is required. For example, this is the case for underground mining, installations for hydroelectric energy production, and holiday villages/hotel complexes outside urban areas.

The phases of an EIA are the following:

Screening: it is the phase of determining whether a project listed in Annex II of the EU EIA Directive is likely to have significant environmental effects. Public participation is not required under EU EIA law in this phase, however some countries (e.g. the Netherlands) already require it.
Scoping: in this stage, the content and extent of the information submitted to the Competent Authority (the authority that, according to national law, is in charge of the EIA process) is identified. Even though not mandatory under EU EIA law, if a scoping opinion has been issued the EIA report must be based on that opinion.
EIA Report: this is the document prepared by the Developer (applicant in the EIA process) that presents the result of the assessment. It contains information regarding the project, its effects and some proposed alternatives to it. Annex IV to the Directive lists the information needed to be included in an EIA report according to Art.5.
Information and Consultation. Under Art.6(4) EU EIA Directive, the public must be informed in detail about the project. Reasonable time should be allocated to allow the public to prepare and participate effectively in environmental decision-making subject to the provisions of Art.6.
Decision-making, after examination, by the Competent Authority. According to Art.9, the public must also be informed of the decision taken at this stage.
Monitoring by the Developer (not required by the Directive). It determines the actual outcomes of the project, ensuring that the project will not have unexpected adverse impacts on the environment. Moreover, it has a role in ensuring that transparency and public participation are respected even after the decision is taken.

Challenges to the understanding of EU EIA law

During an EIA process, it might be difficult to understand the role of EU law, and thus of this Directive. Relevant things to keep in mind are the following.

First, we have to always consider that the EIA is a Directive and not a Regulation. It means that there is still some discretion left to the Member States, for example, the appointment of the Competent Authority.

Secondly, EU EIA law is a procedural field of law, to be conceived in relation to other existing substantive laws, such as the Habitats Directive, the Water Framework Directive, the Packaging Waste Directive or the Environmental Noise Directive. Procedural and substantive laws are interconnected: for example, as related to the management of natural habitats, the Court of Justice of the EU (CJEU) in C-127/02 ruled that an assessment of conservation measures must be carried out if there is a risk “on the basis of objective information, that the plan or project will have significant effects on the site concerned…”.

EU EIA law lays down important procedural principles and practical steps that enhance the democratic process and, among others, the right of the public to have a say. Moreover, it is always in evolution to face the current environmental threats: the amended Directive (2014/52/EU) gives more attention to areas like resource efficiency, climate change and disaster prevention in the EIA process.

A major challenge for public participation is that the EIA Directive does not require formal consultations to start before or during the drafting of the EIA Report. Some countries, however, provide public participation opportunities already in the screening and scoping phases. These countries, such as the Netherlands, are already known for good practice in terms of EIA law, however, there is no harmonization at the EU level on the matter.

So, how and where can we act under EU law?

In light of a clearer picture of how an EIA process is structured we, as the “public”, see our position as stakeholders enhanced by the EU EIA Directive. Time frames for public consultations have been extended from 2014 so we have to make sure that the right allocation of time is respected (30 days minimum).

Other simple considerations to make are whether the given development project falls under the above-mentioned Annexes I, II, and III and if the information described in Annex IV have been provided by the Developer. Check carefully the lists within the Annexes to Directive 2011/92/EU:

Annex I: projects for which the EIA is required.
Annex II: projects subject to a decision from Member States on whether to require an EIA.
Annex III: those project characteristics to be considered in order to require an EIA.
Annex IV: all the information that should be inserted in the description of the project from the part of the Developer.

For EU level guidance, the EU Commission has published and updated three documents to guide during the screening, scoping, and preparation of the EIA Report (updated in 2017), providing further information and clarification on EU EIA law.

Detailed implementation arrangements of the Directive are up to the Member States. Thus, ensure that you have access to documents related to the EIA. In this stage, it can help to consult the laws on access to information as well. Second, always consider whether your country allows public participation during the screening or scoping phases. So, as for when to participate, consult national law. If it does not grant public participation before the EIA report is ready, make sure the report is understandable and collect information about the way to comment on it by being as precise as possible.

Finally, according to the Directive, don’t forget that the interest of any non-governmental organization which meets the requirements of Article 1(2) is recognized. Collaborate with these NGOs in order to build a wider network of stakeholders and raise awareness among other citizens on the dangerousness of a given project.

To conclude, there is a high number of stakeholders and interests involved in large development projects, the environmental, human rights, social and economic dimensions being interlinked. Active participation in decision-making is an effective tool to prevent our interests as “the public” from being undermined and it is thus our right and duty as citizens to keep ourselves informed about activities endangering the environment, in order to take action when needed.