Opinion of the European Economic and Social Committee on the ‘Proposal for a directive of the European Parliament and of the Council amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment’

COM(2012) 628 final — 2012/0297 (NLE)

2013/C 133/07

Rapporteur: Mr ZBOŘIL

On 19 November 2012 the European Parliament and on 16 November 2012 the Council decided to consult the European Economic and Social Committee, under Article 192(1) of the Treaty on the Functioning of the European Union, on the

Proposal for a Directive of the European Parliament and of the Council amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment

COM(2012) 628 final – 2012/0297 (NLE).

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 29 January 2013.

At its 487th plenary session, held on 13 and 14 February 2013 (meeting of 13 February), the European Economic and Social Committee adopted the following opinion by 116 votes to 11 with 7abstentions.

1. Conclusions and recommendations

The Committee welcomes the contribution made by the EIA concept to improving the state of the environment in the Member States and the EU as a whole.

The efficacy of the process of making valid decisions on the environmental impact of a project depends to a large extent on the quality and independence of the EIA documentation and of the information used in it. When assessing that quality, the proportionality principle must be applied and quality must also be required of authorising bodies, following a constructive dialogue with civil society.

In the Committee's opinion, it is essential to point out that the costs involved – in terms of both money and, above all, time – could impede the projects of SMEs, especially when the proportionality principle is not respected in connection with the requirement for alternatives.

The EIA directive should be implemented flexibly and proportionately so that environmental authorisation and planning permission procedures can be combined for those projects where the environmental impacts are known or established beforehand as insignificant. The EESC welcomes and supports the steps taken by the Commission to improve legal certainty for those involved in the EIA process.

The EESC very much welcomes the proposal to specify the time-frames for the main stages required by the directive (public consultation, screening decision, and final EIA decision) and to introduce a mechanism to ensure harmonisation and coordination of EIA processes throughout the EU.

In the view of the Committee, monitoring should be imposed in the EIA decision only where justified and only to the extent absolutely required.

Regarding the proposal to include a provision on ‘adaptation of the EIA to new challenges’, the EESC takes the view that such an extension of the directive's scope must apply to any projects with an expected impact on the aspects of environmental protection that are under evaluation, with the proportionality principle playing an important role and the various preparation and implementation stages of the project being clearly distinguished.

The EESC supports the right of citizens to access information and to participate in the EIA process. At the same time, however, it calls for the procedural rules on the environmental impact assessment of projects to be framed in such a way as to avoid the provisions of the EIA directive being abused for corrupt ends and to draw out time-frames unduly. The EESC would like objections to be investigated reasonably quickly in the interests of all concerned.

2. The Commission document

Directive 2011/92/EU, which harmonised the principles for the environmental impact assessment of projects by introducing minimum requirements, contributes to a high level of protection of the environment and human health.

It is necessary to amend Directive 2011/92/EU in order to strengthen the quality of the environmental assessment procedure, streamline the various steps of the procedure and enhance coherence and synergies with other Union legislation and policies, as well as strategies and policies developed by Member States in areas of national competence.

The measures taken to avoid, reduce and, if possible, offset significant adverse effects on the environment should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the Union's commitments in the context of the Convention and the objectives and actions of the Union Biodiversity Strategy up to 2020.

Climate change will continue to cause damage to the environment and compromise economic development. Accordingly, the environmental, social and economic resilience of the Union should be promoted so as to deal with climate change throughout the Union's territory in an efficient manner. Climate change adaptation and mitigation responses need to be addressed across many of the sectors of Union legislation.

When applying Directive 2011/92/EU, it is necessary to ensure a competitive business environment, especially for small and medium enterprises, in order to generate smart, sustainable and inclusive growth, in line with the objectives set out in the Commission's Communication entitled ‘Europe 2020 – A strategy for smart, sustainable and inclusive growth’.

The environmental report of a project to be provided by the developer should include an assessment of reasonable alternatives relevant to the proposed project, including the likely evolution of the existing state of the environment without implementation of the project (baseline scenario), as a means to improve quality of the assessment process and to allow integrating environmental considerations at an early stage in the project's design.

With a view to ensuring transparency and accountability, the competent authority should be required to substantiate its decision to grant development consent in respect of a project, indicating that it has taken into consideration the results of the consultations carried out and the relevant information gathered.

Time-frames for the various steps of the impact assessment of projects should be introduced to encourage more efficient decision-making and increase legal certainty, while taking into account the nature, complexity, location and size of the proposed project. Such time-frames should under no circumstances compromise high standards for the protection of the environment – particularly those resulting from other Union environmental legislation – effective public participation or access to justice.

3. General remarks

The Committee welcomes the contribution made by the EIA concept to improving the state of the environment in the Member States and the EU as a whole. This concept is a cross-cutting instrument of the environmental policy and legal system of the EU and the Member States and is the practical embodiment of the regulatory framework of that policy.

The Commission's proposal for further improvements to the environmental impact assessment system for projects draws on extensive experience with the use of EIA in the 27 years since the adoption of the first directive (1) . A public consultation exercise was also carried out, the results of which contributed to the formulation of the proposed changes and the adjustment of the provisions of the codified EIA directive 2011/92/EU (2) , with a view to correcting shortcomings, reflecting ongoing environmental and socio-economic changes and challenges and aligning it with the principles of smart regulation.

The efficacy of the process of making 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. Quality should be objectively defined and the requirements for quality should be determined in line with the proportionality principle – i.e., the quality and extent of information available at the stage of the zoning permit. In addition to the quality and independence of information, those managing the procedure – especially in the authorising bodies – should be required to have and to constantly improve the necessary competence. The EESC stresses that it would appear desirable to define the circumstances in which the public can call for a second opinion.

While there is no blanket approach that can be used, since it depends on the specific interaction between each proposed development and its environment, basic principles ensuring better quality data for establishing the baseline information, assessing potential impacts, alternatives and data quality more generally need to be strengthened. Flexibility in terms of the proportionality of requirements must play the deciding role in effective EIA procedures. This principle is also the fundamental prerequisite for improving its coherence with other EU legal instruments and for streamlining management so as to reduce unnecessary red tape.

Strengthening implementation needs to be a priority and should be governed by a common European framework. This should, however, provide the necessary flexibility and should be adapted, in particular, to the specific local and regional needs in terms of health and environmental protection. At the same time, when it comes to assessing cross-border impacts of projects, this framework must be well-defined and comprehensible enough to prevent non-legitimate interests coming into play.

Local, regional and national level assessments need to have access to good quality data at a strategic level so as to provide context for project specific assessments. Responsibility to collate such data and make it accessible to the assessment process for all sectors needs to be taken by state administration.

The EESC is glad that the Commission considered various alternatives for necessary changes to the EIA directive at the preparatory phase and that the proposal that was produced following comprehensive analyses was based on an alternative whose economic costs and environmental benefits were both proportionate, according to the impact assessment. Nevertheless, we think it essential to point out that the costs involved for SMEs – in terms of both money and, above all, time – could prove to be a hindrance, especially the requirement for alternatives, the impact of which could even be fatal to the project.

The EIA directive should be implemented flexibly and proportionately so that environmental authorisation and planning permission procedures can be combined for those projects where the environmental impacts that are known or established beforehand are insignificant, to avoid introducing excessive and unnecessary delays throughout the whole chain of approval processes. This recommendation is all the more pressing now that trans-European networks that are essential for integration of the electricity and gas markets and for the development of transport infrastructure are being approved.

4. Specific comments

The EESC wholeheartedly welcomes the Commission's intention, by means of the proposed revision of the EIA directive, to improve the coherence of EU legislation by, among other things, tightening the definitions of key concepts where this is necessary. However, for any particular project the developer and the competent authority should assess and agree upon a list of appropriate information and selection criteria required for the EIA, on the basis of the proportionality principle.

We also welcome the proposal to specify the time-frames for the main stages required by the directive (public consultation, screening decision, and final EIA decision) and to introduce a mechanism, a kind of EIA one-stop shop to ensure coordination or joint operation of the EIA with the environmental assessments. It is counterproductive, however, to permit the competent authority to extend the ‘basic’ three-month deadline for carrying out the obligatory screening by a further three months. It is quite simply essential to harmonise the process throughout the EU and the time limit of at most three months plus one month for the competent authority to issue its findings is sufficient.

The EESC supports the proposal that in emergencies, Member States should be permitted not to use the EIA where this is necessary and justified. The Committee also welcomes the steps taken by the Commission to improve transparency and accountability, as well as the requirement for the competent authority to give a proper justification of its decision (whether positive or negative) on a particular project.

The EESC welcomes and supports the steps taken by the Commission to improve legal certainty for those involved in the EIA process. However, the Committee is convinced that, if this is to be achieved, binding time limits must be adopted not only for each individual step in the EIA process, but also for the completion of the entire process and the adoption of a decision on the proposed development. It is particularly vital to limit the risk of abuse in the constituent parts of the EIA process, which unduly delays decisions, reducing legal certainty for those involved in the process.

The EESC recommends a very cautious approach when it comes to the use of alternatives, a subject that has been repeatedly discussed in many places. There is clearly a justification and logic to the ‘baseline scenario’, particularly for investment in redevelopment. The number of alternatives and the detail in which they are conceived should match the scale and nature of the project and be agreed in advance with the competent authority.

assessment and clarified process for cases where proposed mitigation does not work and there were significant adverse environmental impacts occur;

clarify processes for incorporation of views and expertise of third parties;

ensuring biodiversity impacts do not fall through the screening process. Often biodiversity impacts are cumulative and missed on account of scale, though the impact may be significant;

A further problem is the monitoring requirement: the EESC believes that monitoring should be imposed in the EIA decision only in justified cases and only to the extent absolutely necessary to track key influencing factors during the construction phase of a project in line with Article 8(2) of the proposed amendment. This is because the current IPPC legislation lays down monitoring requirements once the project or installation is operational and these provisions remain in force in, for example, the industrial emissions directive.

Regarding the proposal to include a provision on ‘adaptation of the EIA to new challenges’, the EESC takes the view that such an extension of the directive's scope must apply to any projects with an expected impact on the aspects of environmental protection that are under evaluation. The EESC recommends that the following aspects be considered:

The impact of the development in terms of biodiversity protection should be assessed both where the impact will occur on a regional scale and where an impact will occur on a local scale. While other legal instruments protect aspects of the environment (such as national parks, nature reserves, NATURA 2000 sites, and so on) there is a clear need for a more encompassing assessment process such as provided by the EIA that is governed by both national and European level provisions.

Climate change is a global phenomenon that has local level consequences and requires local level actions. Assessing developments in terms of the global impact on climate change and dealing with climate change is a significant challenge. The proportionality principle must be applied in this case and guidance provided at national and local level. For this reason, assessment in the area of climate protection should focus on the real direct impacts of the project on the local climate (land use, water resources, etc.) and its impacts at regional level. The EESC also attaches importance to the question of evaluating the potential for mitigating the expected impacts (local, regional and global) of climate change.

In this respect, the EESC points out that the criterion proposed for assessing the impact of a particular development on global climate change, namely greenhouse gas emissions, is inadequate. For this reason, it calls for guidance on implementing this aspect, and for climate change impact assessment to also be included in the SEA stage of plans and programmes.

Disaster risk assessment should not focus on totally hypothetical cases or hypothetical combinations of these. An assessment of this kind, respecting the proportionality principle, is not in essence a new requirement, to the extent that it will continue to relate to potentially foreseeable natural disasters (floods, large-scale fires, earthquakes and so on).

The EESC considers that an assessment of the consumption of (natural) resources in the EIA is needed within the chain of consent procedures. Economical use of resources is without doubt an inherent economic principle for every project if it is to have any chance of being implemented, however declines in biodiversity identify that proactive measures are nonetheless required beyond this. There is however insufficient information for such an assessment at the EIA phase. Guidance and collation of information to assess this aspect of the EIA is required. While assessment of the consumption of raw materials, natural resources and energy in productive investment is covered in the integrated authorisation procedure under the industrial emissions directive, this has not addressed biodiversity degradation.

The EESC supports the right of citizens to access information and to participate in the EIA process. At the same time, however, it calls for the procedural rules on the environmental impact assessment of projects to be framed in such a way as to avoid the provisions of the EIA directive being abused for corrupt ends and to draw out time-frames unduly. A period of 27 months to issue a decision is quite simply unacceptable and disqualifies the EU as a suitable economic area for new investment.

(1) OJ L 175, 5.7.1985, p. 40-48.

(2) OJ L 26, 28.1.2012, p. 1.

APPENDIX I

to the Committee opinion

The following paragraphs of the section opinion were altered to reflect amendments adopted by the Assembly but received more than one quarter of the votes cast (Rule 54(4) of the Rules of Procedure):

Point 1.1 and 3.1 (voted together)

The Committee welcomes the major contribution made by the EIA concept to a gradual but significant improvement in the state of the environment in the Member States and the EU as a whole. This concept is a cross-cutting instrument of the environmental policy and legal system of the EU and the Member States and is the practical embodiment of the regulatory framework of that policy.

Result of the vote on the amendment

For : 55 Against : 41 Abstentions : 19

Point 1.2 and 3.3 (voted together)

The efficacy of the process of making 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. The problem, however, lies in how the participants in the process understand quality. Quality should be objectively defined and the requirements for quality should be determined in line with the proportionality principle – i.e., the quality and extent of information available at the stage of the territorial procedure. In addition to the quality of information, those managing the procedure – especially in the authorising bodies – should be required to have and to constantly improve the necessary competence.

Result of the vote on the amendment

For : 65 Against : 44 Abstentions : 13

Point 3.4

In other words, there is no blanket approach that can be used, since it depends on the specific interaction between each proposed development and its environment. Flexibility in terms of the proportionality of requirements must play the deciding role in effective EIA procedures. This principle is also the fundamental prerequisite for improving its coherence with other EU legal instruments and for streamlining management so as to reduce unnecessary red tape.

Result of the vote on the amendment

For : 68 Against : 51 Abstentions : 11

Point 4.6

The following paragraph did not feature in the section opinion:

4.6 Specific areas requiring attention for strengthening implementation include: — Ensuring biodiversity impacts do not fall through the screening process. Often biodiversity impacts are cumulative and missed on account of scale, though the impact may be significant. — Ensure public participation which happens early in the EIA process. — Clarify processes for incorporation of views and expertise of third parties. — Ensure independence and quality of environmental statements and assessments. — Assessment and clarified process for cases where proposed mitigation does not work and there were significant adverse environmental impacts occur. — Ensure that proposed mitigation measures are actually carried out.

Result of the vote on the amendment

For : 70 Against : 54 Abstentions : 8

Point 4.7 (becomes 4.8)

Regarding the proposal to include a provision on ‘adaptation of the EIA to new challenges’, the EESC takes the view that such an extension of the directive's scope must apply exclusively to projects with a high and quantifiable expected impact on the aspects of environmental protection that are under evaluation. The EESC recommends that the following aspects be considered:

Result of the vote on the amendment

For : 69 Against : 52 Abstentions : 11

Point 4.7.1 (becomes 4.8.1)

The impact of the development in terms of biodiversity protection should be assessed only where the impact will occur on at least a regional scale or the where an impact on a local scale will affect areas that are protected by special legislation (such as national parks, nature reserves, NATURA 2000 sites, and so on).

Result of the vote on the amendment

For : 71 Against : 56 Abstentions : 5

Point 4.7.2 (becomes 4.8.2)

Climate change is a global phenomenon, while only very few developers can knowledgeably assess their developments in terms of the global impact on climate change. The proportionality principle must therefore be applied in this case. For this reason, assessment in the area of climate protection should focus on the real direct impacts of the project on the local climate (land use, water resources, etc.) and its impacts at regional level. The EESC also attaches importance to the question of evaluating the potential for mitigating the expected impacts (local, regional and global) of climate change.

Result of the vote on the amendment

For : 84 Against : 53 Abstentions : 6

Point 4.7.3 (becomes 4.8.3)

In this respect, the EESC points out that the criterion proposed for assessing the impact of a particular development on global climate change, namely greenhouse gas emissions, is inadequate. For this reason, it calls for a climate change impact assessment to be included in the SEA stage of plans and programmes – in compliance with the proportionality principle – and for any extension of the EIA directive's scope to cover global climate change to be abandoned.

Result of the vote on the amendment

For : 74 Against : 51 Abstentions : 7

Point 4.7.5 (becomes 4.8.5)

The EESC considers that an assessment of the consumption of (natural) resources in the EIA is premature within the chain of consent procedures. Economical use of resources is without doubt an inherent economic principle for every project if it is to have any chance of being implemented. Furthermore, there is insufficient information for such an assessment at the EIA phase. Assessment of the consumption of raw materials, natural resources and energy in productive investment is covered in the integrated authorisation procedure under the industrial emissions directive.

Result of the vote on the amendment