Opinion of the Committee of the Regions on the 'Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment` (98/C 64/10)

THE COMMITTEE OF THE REGIONS,

having regard to the proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment [COM(96) 511 final - 96/0304 (SYN)] ();

having regard to the decision taken by the Council on 6 May 1997, under the first paragraph of Article 198c of the Treaty establishing the European Community, to consult the Committee of the Regions on the matter;

having regard to its decision on 11 June 1997 to direct Commission 5 for Land-use Planning, Environment and Energy to draw up the relevant opinion;

having regard to the draft opinion (CdR 172/97 rev.) adopted by Commission 5 on 3 July 1997 (rapporteur: Lord Tope),

adopted the following opinion at its 20th plenary session on 19 and 20 November 1997 (meeting of 20 November).

1. Introduction

1.1. The proposed directive is intended to enhance the protection of the environment by ensuring that:

a) an environmental assessment is carried out of certain plans and programmes, and

b) the results of the assessment are taken into account during the preparation and adoption of such plans and programmes.

1.2. The COR welcomes the general thrust of the proposed directive. It would, however, ask the Commission, Council and Parliament to look again at the need for an additional EIA directive.

It takes note of the directive's analysis which leads the Commission to the conclusion that:

a) the present environmental assessment requirements for individual projects are inadequate in that they do not always guarantee a high level of environmental protection;

b) since 1988 there have been important developments in the assessment of plans and programmes in the Member States, some of which already have legal provisions corresponding to the minimum requirements laid down in the proposal.

The COR advocates first waiting for the directive of 3 March 1997 amending the EIA directive to be implemented in the Member States before issuing new Community rules in this area.

The legal basis of the directive needs to be clarified. The COR therefore asks the European Commission to reconsider the legal basis of the proposal (Article 130s(1) of the EC Treaty).

1.3. The COR regrets the proposal's failure to look at the broader picture. Environmental issues must be addressed in conjunction with social and economic issues, and with the long-range conservation of resources, in a properly planned procedure. This is the first important step towards sustainable development.

Notwithstanding the reservations about the draft directive expressed above, the COR makes the following comments regarding individual points made in the proposal.

1.4. The COR feels that Article 3 on the transposal of the directive requires further clarification. It must be clear that the directive does not require the framing of new planning procedures, but merely affects existing decision-making procedures. It is important that individual Member States be allowed to continue to use existing procedures and yet still adopt plans and programmes to enable them to comply with the aims of the directive.

1.5. However, the COR believes that in certain respects the scope of the proposed directive is inadequate. As presently drafted, it would in some cases clearly not apply, and in others arguably might not, to programmes or plans which fundamentally affect the use of land and its impact upon the environment, because either:

a) they do not relate specifically and exclusively, or at least partially to land use, or

b) their status and the procedures for their promulgation are too informal and fall within the terms of the proposed directive as currently drafted.

1.6. The proposed directive would also not apply to EU financial programmes which may give rise to significant environmental effects. Although the COR acknowledges that such programmes are currently subject to environmental criteria, these are not as rigorous as those detailed in the draft proposal.

1.7. The proposed directive would clearly impose additional costs on many or most of the authorities required to comply with it. These costs would vary considerably between Member States, and possibly also within individual Member States, according to the level of sophistication of procedures which they respectively apply under present arrangements.

2. General background - the Union and environmental requirements

2.1. The Fifth Environmental Action Programme has identified the importance of a consistent approach to environmental standards across the Union, not least as a basis for level competition between different parts of the Union, and the importance of integrating environmental assessment into the strategic planning process in order to achieve this consistency. It is therefore essential, in order to secure economic as well as environmental benefits for the Union as a whole, to integrate such standards into spatial planning processes throughout the Union.

2.2. This is recognized by Article 130r of the Treaty, which provides that Community policy on the environment shall contribute to the preservation, protection and improvement of the quality of the environment, the protection of human health and the prudent and rational use of natural resources, and that this policy should be based on the precautionary principle.

3. Existing European Union legislation

3.1. The COR acknowledges the benefits which have been conferred by the implementation of the existing Directive 85/337/EEC, requiring the assessment of the environmental effects of certain public and private projects. The proposed new directive correctly identifies the respects in which those arrangements are inadequate to secure effective protection of the environment, namely that they do not require:

a) the assessment of impacts which may arise from the combined effects of projects across geographical and functional boundaries;

b) the assessment of impacts which may arise from the cumulative effect of multiple projects which individually may not have significant impacts;

c) the opportunity of being consulted upon and participating in the decision-making process at the earliest possible stage.

4. Desirable changes to the scope of the proposed new directive

4.1. The COR is concerned that Article 2 of the proposed directive restricts its provisions to plans and programmes which refer specially and exclusively, or at least primarily, to land use. Many of the plans and programmes which have the most fundamental effect upon the use of land and the impacts of that use upon the environment, human health, and the consumption of natural resources, are produced primarily in the context of other categories of policy, notably transport.

4.2. It is therefore essential in the COR's view that such plans and programmes relating to any type of physical or spatial development or provision should be directly subjected to the provisions of the directive. It is insufficient that this should only be done indirectly and therefore possibly at too late a stage through subsequent scrutiny under Member State legislation dealing specifically with land use.

4.3. The COR also notes that EU plans and programmes prepared, for example, under the Structural Funds are not covered by the proposed directive. Although the Structural Fund guidelines do contain environmental criteria, these are not as rigorous as full environmental assessment and there is currently no requirement for public consultation. The COR shares this view, and recommends that projects relating to the environment that are implemented in accordance with Structural Fund programmes should be assessed more rigorously in terms of their environmental effects.

4.4. The COR is also concerned that the directive would only apply to plans and programmes which are subject to formalized procedures for preparation and adoption by a competent authority or are subject to the specific provisions of an act of legislation. Many plans and programmes with potentially fundamental effects upon the environment are formulated and promulgated at Member State or regional level by the relevant governments or authorities or by agencies at arm's length from these, without the existence of a prescribed framework of the degree of formality envisaged in Article 2(a)(i) as currently drafted. The COR believes that the directive should apply to all relevant plans and programmes produced by governments, authorities or their agencies at Member State, regional or local level, irrespective of the procedure by which this is done.

However, the COR fully accepts that assessments at the local level should not duplicate assessments already carried out at the regional or Member State level.

4.5. It is also important to clarify how widely the words 'plan` and 'programme` would be interpreted in determining the scope of the proposed directive. The COR understands and shares the desire of Member States not to fetter the political process with restrictions to their respective ability to formulate and adopt general policies.

4.6. However, as soon as policies become clothed in quantified detail - for example, by specifying total levels of a particular type of development which are envisaged with a Member State or other area, or how such development should be distributed within that state or area - they become in effect plans or programmes which clearly need to be subject to the provisions of the proposed directive. Once they attain that degree of specificity, they begin to pre-empt subsequent decisions on individual projects in precisely the way which justifies the introduction of the proposed new requirements.

4.7. It is accordingly vital in the COR's view that the proposed directive should define its scope in such a way that any instrument or pronouncement, no matter how it was entitled or described, would be regarded as a 'plan` or 'programme` if it specified the total levels, or the distribution which were envisaged for any relevant type of development.

4.8. The scope of the directive is still somewhat vague. It can have a positive impact on work at national and regional level. As is clear from point 4.4, it is important that the directive only applies to local plans and programmes if the Member State deems that this can have fundamental effects upon the environment.

4.9. Article 10(2) excludes the operation of the directive in respect of management plans specifically designed for special areas of conservation and adopted pursuant to Article 6(1) of Council Directive 92/43/EEC. However, any plan or project which is not directly related to the special conservation areas, but which can substantially affect such areas, will be regulated and its repercussions will be properly assessed.

4.10. The COR considers that a separate assessment procedure can be omitted in such cases if the essential assessments have been carried out already during the planning process and hence before the results are submitted.

4.11. The requirement to consult the public and others is an essential feature of the proposed directive. However, the COR is anxious that this discipline should not be applied in such a way as to duplicate, unduly complicate or lengthen existing processes for the production of plans and programmes.

5. Costs

5.1. The financial effects of implementing the proposed directive will vary greatly, according to the differing requirements already placed upon respective competent authorities in different Member States, and the extent to which they have already voluntarily adopted procedures which go beyond those requirements.

5.2. In those Member States where broader environmental considerations are already integrated into procedures under spatial planning legislation, the increase in costs will be correspondingly slight. The explanatory memorandum to the proposed directive points out that processes at present required in conducting environmental assessments of individual projects will, under the provisions of the proposed directive, be carried out at the earlier stage of planning, and will not have to be repeated at the project stage. This will particularly apply to the collection of 'baseline` information regarding environmental conditions within a locality.

The COR would, however, point out that in many cases it will not be possible to use the results of the EIA of plans and programmes for the assessment of specific projects because projects are usually carried out long after the plans and programmes were drawn up and the data which were gathered will be out of date. This can be expected to cause considerable extra costs for the authorities of the Member States and the project sponsors.

5.3. Some competent authorities in some Member States believe that the procedures they already follow in formulating and adopting plans and programmes are equivalent to those which will be required by the proposed directive, and that they will incur little significant additional cost. Other competent authorities, however, will clearly have to incur very significant costs in meeting the proposed requirements. It is essential that the resources are available, through the appropriate channels within each Member State, fully to reflect these additional costs.

6. Assessment procedure

6.1. It would be appropriate to insert in Article 8 of the draft directive a paragraph requiring the body responsible for adopting or submitting the relevant plan or programme to the legislative procedure, to motivate its decision where this diverges from the content of the declaration on the environment, from the consultations held with the authorities and/or bodies responsible for environmental matters and from the views expressed by the interested parties.

6.2. The COR also feels that the statement required under Article 9 should contain the general guidelines for the subsequent assessment of projects drawn up during the course of the plans and programmes which are being assessed.

6.3. The requirement in Article 10(1) of the draft directive that the environmental assessment should respect the requirements of Directive 85/337/EEC should be extended to Council Directive 97/11/EC of 3 March 1997 amending the previous directive on environmental impact assessments of certain public and private projects.

7. Conclusion

7.1. The COR strongly welcomes the general thrust of the proposed directive as a major enhancement of the mechanisms for the protection of the environment within the Union.

7.2. The COR believes that the scope of the proposed directive should be clarified in a number of respects as specified in the opinion to ensure that plans and programmes produced at all levels and in all contexts which affect physical or spatial development should be subject to its requirements.

7.3. The COR recognizes that the proposed directive will impose costs in widely varying degrees upon competent authorities within the Union and calls upon the respective Member States to ensure that these costs are fully funded.

Brussels, 20 November 1997.

The Chairman of the Committee of the Regions

Pasqual MARAGALL i MIRA

() OJ C 129, 25.4.1997, p. 14.