Author: Michael Watson, Ph.D., Senior Lecturer in Law, School of Social Sciences, Bath Spa University College, Bath, United Kingdom, e-mail: m.watson@bathspa.ac.uk

Editors note: First presented at the XIV International Conference “Danube – River of Cooperation” (November 13-15, 2003) and published in Danubius 3-4/2003

Introduction

Environmental law is a new, rapidly evolving, and increasingly important area of jurisprudence. Although various industrialising countries introduced environmental controls in the nineteenth century, environmental law only began to emerge as a discrete subject in the late nineteen-sixties. In North America and Europe, early environmental law tended to follow the traditional “command and control” approach. This form of regulation is sometimes said to be “top-down”. It is based on a state-centred vision of environmental protection. A government will typically establish performance standards for polluters and allow them to buy licences. Polluters who fail to comply with the conditions specified in their licences may be prosecuted or face civil actions.

Although the command and control approach is often necessary, its limitations are increasingly apparent. It relies for its effectiveness on regulatory bodies which may be inefficient or under-financed. Environmental goals are often set without proper consideration of the economic costs. Command and control strategies are ill- equipped to deal with highly complex issues. They do not respond well to public environmental concerns.

There is therefore growing interest in more “reflexive” approaches to environmental protection; i.e. laws and policies which encourage self-regulation. ((H.Heinelt, T.Malek, N.Staeck, A.E. Toller: Environmental Policy: The European Union and a Paradigm Shift’, in H.Heinelt, T.Malek, R.Smith, and A.E.Toller, editors, European Union Environment Policy and New Forms of Governance (Ashgate, Aldershot, UK; 2001), 1-32. E.W.Orts: Reflexive Environmental Law (1995), 89(4), Northwestern Law Review, 1227-1328.))  Environmental impact assessment (EIA) is the most important example of this new approach. What is environmental impact assessment? The central idea is that if a project is likely to have serious environmental consequences, these should be examined before the development is authorised. It is essentially a two-stage process. The first stage consists of the gathering and analysis of relevant information. The developer will prepare — or commission from an environmental consultant — an “environmental statement” which will describe the probable environmental impact of the development.

In theory, this should be accurate and objective. According to Stuart Bell and Donald McGillivray, two British environmental lawyers: “The ideal EIA would involve a totally bias-free collation of information produced in a form which would be coherent, sound and complete”. ((Environmental Law (5th ed, London, 2000), 347. See also P. Winter: Environmental Impact Assessment: Professional Integrity and Public Participation (2001), 8, The Environmentalist, 22-24.)) In reality, environmental statements produced on behalf of developers are sometimes biased and of poor quality. Countries such as Croatia and the Czech Republic have established accreditation systems for the consultants responsible for their preparation. ((Report on Environmental Policy in Transition: Lessons Learned from Ten Years of UNECE Environmental Performance Reviews (United Nations Economic Commission for Europe, 2003), 37: http://www.unece.org/env/documents/2003/ece/cep/ece.cep.99.e.pdf)) If a development is controversial, additional reports may be produced by pressure groups, government agencies, and private individuals. A report may even be commissioned by the planning authority.

The second stage consists of the assessment of this information by the relevant planning authority. The authority must take the likely environmental impact into account before deciding whether or not to permit the development. Environmental impact assessment is essentially a procedural mechanism. The authority may conclude that the economic benefits of a project may outweigh the environmental damage that it is likely to cause. But it cannot authorise the development without giving due consideration to the environmental implications.

The history of environmental impact assessment

One of the most important pieces of American environmental legislation is the National Environmental Policy Act 1969 (NEPA). ((For an interesting comparative study of the American and European approaches to EIA see W.M.Tabb: Environmental Impact Assessment in the European Community: Shaping International Norms (1999), 73, Tulane Law Review, 923-960.)) This contains a requirement for examining the likely environmental implications of “major federal actions significantly affecting the quality of the human environment”. ((42 U.S.C. § 4332 (2) (1997).)) Although the scope of this legislation was (and remains) quite narrow, the need for environmental impact assessments was quickly recognised by governments and legislatures across the world. Formal EIA requirements were soon introduced in Japan (1972), Hong Kong (1972), Canada (1973), Australia (1974), the Philippines (1977), Taiwan (1979) and the People’s Republic of China (1979). ((A.Gilpin, Environmental Impact Assessment (EIA): Cutting edge for the twenty-first century (Cambridge University Press; 1995), 3.))

In Europe, Germany (1975) and France (1976) were the first countries to introduce EIA requirements. Although an EIA directive was proposed in the European Community’s Second Action Programme on the Environment (1977) the suggestion aroused strong opposition. Eight years of heated debate preceded Directive 85/377/EEC. This which came into effect in July 1988 and has since been amended. EIA requirements were then introduced by various European (EC and non-EC) countries.

Almost all developed countries now have mandatory environmental impact procedures. The number of developing and transitional countries with such procedures is also increasing rapidly. A major factor is the use of EIA. by international development banks and aid agencies. ((See generally Coherence in Environmental Assessment: Practical Guidance on Development Co-operation Projects (Organisation for Economic Co-operation and Development, Paris, 1996).))

The importance of environmental impact assessment was quickly recognised by international lawyers. In 1987 the World Commission on Environment and Development published an influential report (usually known as the Brundtland Report). This emphasised the role of EIA in facilitating sustainable development. It also states: “when the environmental impact of a proposed project is particularly high, public scrutiny of the case should be mandatory and, wherever feasible, the decision should be subject to earlier public approval, perhaps by referendum”. ((Our Common Future (Oxford University Press, 1987), 64.))

Principle 17 of the 1992 Rio Declaration on Environment and Development is devoted to EIA: “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority”.

In 1998 the European Community and its Member States became signatories to the United Nations/ Economic Commission for Europe Convention on Access to Information, Public Participation in Decision Making and Access to Justice (Ĺarhus Convention). According to Kofi Annan, the Convention “is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations”. ((S.Stec and S.Casey-Lefkowitz, Ĺarhus Convention: An Implementation Guide (United Nations Economic Commission for Europe; 2000). http://www.unece.org/env/pp/implementation%20guide/english/part1.pdf
See also J.Jendroska and S.Stec, ‘The Ĺarhus Convention: Towards a New Era in Environmental Democracy’ (2001), 9(3), Environmental Liability, 140.)) A detailed discussion of this important Convention is beyond the scope of this paper. It should be noted, however, that signatories are free to introduce more radical measures..

The primacy of European Community Law

European Community law (the acquis communautaire) takes precedence over all national domestic law. The European Court of Justice first stated this fundamental principle in the case of Van Gend en Loos (26/62): “the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields”. In Simmenthal SpA (106/77) the Court went further: “any national court must … apply Community law in its entirety … And must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community law”. Article 10 of the European Treaty states:

“Member States shall take all appropriate measures … to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty”.

Although a Member State may have some discretion when incorporating E.C. directives into its national law it is obliged to ensure that there is no conflict between them. States which aspire to join the Community must be prepared to harmonise all their domestic legislation with that of the Community. Many of the legal changes will be in the field of environmental law. It has been estimated that 35 per cent of the Serbian legislation that must be harmonised with Community law is in the field of environmental protection. ((Harmonisation of Serbia’s Environmental Legislation with EU Standards: http://www.serbia.sr.gov.yu/news/2003-03/10/328068.html)) These requirements obviously impose substantial burdens on candidate countries. They are therefore permitted to request transition periods of up to ten years in areas where they are necessary. The Community also provides pre-accession financial assistance to facilitate the process.

The importance of environmental impact assessment

It is difficult to exaggerate the importance of environmental impact assessment. Russell Train, former Chairman of the USA’s Council for Environmental Quality and Administrator of the Environmental Protection Agency has stated:

“I can think of no other initiative in our history that has had such a broad outreach, that has cut across so many functions of government, and that has had such a fundamental impact on the way government does business? I am qualified to characterise that process as truly a revolution in government policy and decision making”. ((Cited by Robert V. Bartlett and P.A.Kurian, ‘The Theory of Environmental Impact Assessment: Implicit models of policy making’ (1999), 27(4), Policy and Politics, 415-433, at 416.))

According to Bell and McGillivray, Directive 85/377/EEC is probably the European Community’s most important environmental directive.

“In part this is because it heralded the use of procedural law for environmental protection at EC level. But it is also because the Directive was the first to provide for the integration of environmental concerns into decision-making – a hallmark of sustainable development. That the Directive has been the subject of more complaints to the Commission about non-implementation than any other EC environmental measure is an indicator of its impact”. ((Environmental Law (5th ed, London, 2000), 370.))

The European Approach to Environmental Impact Assessment

Directive 85/377/EEC as amended by Directive 97/11/EC requires Member States to ensure that projects which are likely to have “significant effects” on the environment should not be given development consent until their likely environmental impacts have been fully assessed. Projects may be public or private. A distinction is drawn between projects which are subject to a mandatory assessment process and those which are subject to an assessment if the Member State believes that they will have serious environmental impacts. These are listed in Annex I and Annex II respectively. Annex I projects include: oil refineries, nuclear power stations, airports, motorways and quarries over 25 hectares. The list of Annex II projects is much longer. It includes: reclaiming land from the sea, quarries under 25 hectares, wind farms, car factories, shopping centres, motorway service areas, golf courses, caravan sites and theme parks. Annex II generally specifies minimum sizes. For example, golf courses and caravan sites under one hectare are usually exempt.

Member States have some discretion regarding Annex II projects. How should this discretion be exercised? States are free to identify projects for EIA on a case by case basis or by establishing thresholds, e.g. all caravan sites over two hectares (Article 4(2)). Annex III provides some formal guidance. According to Annex III there are three broad selection criteria: the characteristics of projects (including size, use of natural resources, and waste production); the location of projects (environmentally sensitive areas need special protection); and the characteristics of the potential impact (including its size, complexity and likely duration).

If a project requires an EIA the developer must prepare an environmental statement for consideration by the planning authority. The essential elements in the environmental statement are specified in Annex IV. They include: a description of the project; an outline of the options considered by the developer; a description of the aspects of the environment likely to be significantly affected by the proposed project; an outline of the measures envisaged to prevent, reduce and where possible offset any significant effects on the environment; and a non-technical summary. The right of the public to participate in the subsequent assessment will be strengthened by Directive 2003/35/EC. In essence, this aligns Community law with the Ĺarhus Convention. Member States must comply with the Directive by 25th June 2005.

The advantages and disadvantages of environmental impact assessment

The basic aim of environmental impact assessment is to facilitate environmentally sensitive decision making. It provides developers, planning authorities and the public with information. This has obvious benefits. In theory, EIA should prevent manifestly bad projects from receiving serious consideration. It ensures that the process of development is open to scrutiny. Alternative approaches, technologies, and sites may be discussed. Ways of mitigating environmental damage can be explored. Allowing public participation in the decision making process tends to reduce opposition to projects. Misunderstandings may be avoided. People are also more likely to accept a development once they have had a chance to express their views.

It must, of course, be acknowledged, that the environmental impact assessment process is subject to political pressures of various kinds. A change of government may lead to EIA being taken more – or less – seriously by ministers and officials. ((Gilpin, Environmental Impact Assessment (EIA): Cutting edge for the twenty-first century (Cambridge University Press; 1995), 8.)) It must also be remembered that mandatory Annex I projects are comparatively rare. In most cases government ministers and planning authorities have considerable discretion.

In the United States considerable weight is attached to genuine public participation in environmental impact assessments. Some European states seem to favour a more technocratic approach. ((J.Formby, ‘The Politics of Environmental Impact Assessment’ (1990), 8, Impact Assessment Bulletin, 191-196.)) Evanthia Athanassopoulou has described the Greek approach to environmental impact assessment:

“Officials within the Greek administration have generally viewed public involvement in decision making as more threatening than constructive, even though it is provided for within the EIA procedure. They have been used to a command and control regulatory policy style where no significance has been attached to co-operation and debate with the public … Usually, the authorities have ignored their duty of providing relevant information. In these circumstances, the public has virtually no real chance of being able to articulate their objections to a project”. ((‘The Implementation of EIA in Greece’, note 2 above, 295 – 307, at 303.))

According to Mercedes Pardo, the situation in Spain is not dissimilar:

“The socio-political situation has not been favourable to a sound development of EIA in Spain. The environmental review process was established due to the EC requirement for all Member States, without Spain having any environmental policy. Indeed, the Spanish administration has given absolute priority to development over any other consideration. Most of the public infrastructures that have been built … did not complete the environmental evaluation required by law”. ((‘Environmental Impact Assessment: Myth or Reality? Lessons from Spain’ (1997), 17, Environmental Impact Assessment Review, 123-142, at 124.))

Environmental impact assessments tend to delay projects and can be expensive. A detailed analysis of eighteen case studies in the United Kingdom, Spain, the Netherlands and Greece suggests that a project EIA typically takes somewhat less than two years. For 60 per cent of the projects, EIA costs constituted under 0.5 per cent of the total capital cost. The evidence indicates that there are economies of scale. If the capital cost of a project is €100 million, the cost of the EIA may be only €200,000 (0.2 per cent). ((Environmental Impact Assessment: A study on costs and benefits (European Commission, Brussels. 1996). There are two volumes. The first outlines the costs and benefits of EIA in selected projects. The second provides comprehensive case studies.))

Although these direct and indirect costs are not insignificant, they should be offset against the real economic advantages of a successful EIA. And developers have few grounds for complaint. According to Paul Stookes, Director of the United Kingdom’s Environmental Law Foundation: “Any financial cost incurred in carrying out an EIA is simply introducing into development projects a cost that has, for far too long, been absent and should rightly be incurred if proposed development projects and their related impacts on society are to be more objectively calculated and determined”. ((Getting to the Real EIA’ (2003), 15(2), Journal of Environmental Law, 141-151, at 143.))

The future of environmental impact assessment

Annex I of Directive 85/337/EEC originally identified nine types of projects which required mandatory environmental impact assessment. Directive 97/11/EC increased the number of categories to twenty-one. Projects such as waste water treatment plants, pipelines, paper factories and overhead electrical power lines now appear in Annex I. It is likely that this process will continue in the future and that the discretion available to planning authorities will therefore decline.

Environmental impact assessment has traditionally been concerned with individual projects. It has been possible to view these in isolation. A recent development is the emergence of strategic environmental assessment (SEA.). Although the term began to be used in the late nineteen-eighties its precise meaning was unclear. The assessments subject to SEA. varied between countries. ((T.B.Fischer and K.Seaton, ‘Strategic Environmental Assessment: Effective Planning Instrument or Lost Concept?’ (2002), 17(1), Planning Practice and Research, 31-44.)) Directive 2001/42/EC on the assessment of certain plans and programmes on the environment will require Member States to ensure environmental assessment procedures at the plan-making stage. ((N.Risse, M.Crowley, V.Philippe, J.Waaub, ‘Implementing the European SEA Directive: the Member States’ margin of discretion’ (2003), 23, Environmental Impact Assessment Review, 453-470.)) It applies to national regional and local plans prepared by competent authorities “which are likely to have significant effects on the environment” (Articles 1 and 2). Assessment is to be required for plans ‘which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use’ (Article 3(2)(a)). It will be necessary to consult the public about draft plans (Article 6). When plans are adopted they must be made available to the public (Article 9(1). Member States must implement the Directive by 21st July 2004.