Transcript Decision on the Application, Judicial Review and the

EIA and SEA
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Projects
covered by EIA Directive
(85/337/EEC, 97/11/EC Espoo, 2003/35/EC
(Aarhus)
Environmental
Assessment
Policies
Plans & Programmes
covered by SEA Directive (2001/42/EC)
Process for projects
Screen to see if EIA required (is
mitigation relevant?). Reasons for not ?
 Scope to see what EIS should involve
(with NGOs , residents, regulators,
interested bodies)
 EIS Submitted with application for
consent
 Consultation (public/ngo’s/ specialist
bodies
 EIA carried out by Regulator/competent
authority taking all info into account
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Definition of project
‘—the execution of construction works
or of other installations or schemes,
 —other interventions in the natural
surroundings and landscape including
those involving the extraction of mineral
resources
 Polytunnels in farms?
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Some examples of projects
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Annex 1 EIA always
• Long-distance railway lines
• Motorways, express roads,
roads of four lanes or more
(of at least 10Km)
• Waste disposal installations
– for hazardous waste
– for non hazardous waste
(above 100 tonnes/day)
• Waste water treatment
plants
(above 150000 p.e.)
• Changes or extensions of
Annex I projects, meeting
Annex I thresholds
EIA above threshold and/or if
significant effects
 ANNEX II
 • Construction of railways and
 roads not included in Annex I
 • Waste disposal installations
 and waste water treatment
 plants not included in Annex I
 • Urban development
 projects
 • Changes or extensions of
 Annex I and II projects that
 may have adverse
 environmental effects (not
 included in Annex I)
Kraaijveld – “wide scope and
broad purpose”
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Abraham - widening and refurbishing runway
Ecologistas - refurbishing road = construction
Horner/Edwards – change of fuel?
Comm v Spain – doubling rail track
Akester – bigger ferries in port
• Exemptions to be interpreted narrowly
(WWF & others C-435/97; Linster C-287/98)
Duty of competent authorities
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To do “all within the limits of their
powers to ensure that the directive is
implemented”
Kraaijveldt – huge duty on courts and
public authorities in member states.
 Irish Supreme Court changes judgment
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Inadequate transposition
Kraaijveld (thresholds too high)
 Commission v Ireland (didn’t take
account of cumulative effects or
location of projects: small projects can
have significant effects)
 Commission v Ireland (no planning
permission required for certain
agricultural activities)
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Now
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nothing is exempted development if EIA
or AA could be required for it
What is a development consent?
“Consent enabling project to proceed”
 Ex p Browne (new mineral permission)
 Greenpeace – ancillary consent
 Prokopp- not failure to take enforcment
action
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The consent that dealt with the substantial
environmental issues
Screening Annex 11 projects
Case by case and/ or thresholds and
criteria
 Annex 111 criteria must always be
taken into account (no salami slicing)
 Decision must be available to the public
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Screening
Decision must be made by properly
authorised officer. O’Nuallain v Dublin
Corporation
 Negative screening must be supported by
sufficient reasons Commission v UK Case
C495/0 and
 Lotto Zero C-87/00 the screening decision
must be accompanied by the information
that makes it possible to check that it was
based on adequate screening
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Contents of EIS Art 5(1)
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1. Description of the project ,including in particular:
—a description of the physical characteristics of the whole project and the
land-use requirements during the construction and operational phases,
—a description of the main characteristics of the production processes,for
instance, nature and quantity of the materials used,
—an estimate,by type and quantity,of expected residues and emissions
(water,air and soil pollution,noise,vibration,light,heat,radiation,etc.) resulting
from the operation of the proposed project.
2. An outline of the main alternatives studied by the developer and an
indication of the main reasons for this choice, taking into account the
environmental effects.
3. A description of the aspects of the environment likely to be significantly
affected by the proposed project, including, in particular, population, fauna,
flora, soil, water, air,
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What must it achieve?
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EIA shall identify, describe and assess in an
appropriate manner, and in the light of each
individual case and in accordance with
Articles 4 and 11, the direct and indirect
effects of a project on the following factors:
human beings, fauna and flora,
- soil, water, air, climate and the landscape,
- material assets and the cultural
heritage and
Must analyse effects on
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-the interaction between the factors mentioned in
the first, second and third indents.
Articles 4 and 11 describe contents and procedures
for EIA
Cases on joint consents Commission V Ireland
“Art 2a. Member States may provide for a single
procedure in order to fulfil the requirements of this
Directive and the requirements of Council Directive
96/61/EC of 24 September 1996 on integrated
pollution prevention and control”.
Must identify likely significant
effects
Not all effects -just likely effects
 Significant – breach of an environmental
standard but other tests also.
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Competent authorities decide what is
significant. Courts will defer to their
expertise unless it is patently wrongl
Effects on the “environment”
Must be effects on the “big”
environment not just on local
neighbourhood
 Compare Ipswich case in UK and Kenny
v An Bord Pleanala in Ireland
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Cumulative effects
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impacts must be considered
– Commission v Ireland – Ireland did not
take account of cumulative effects of
afforestation.
– O’Connell v O’Connell motorways
– No duty to take account of proposed
extension of a road in that case.
All effects
– O’Nuallain - not just adverse
effects
– Adverse only for modifications of
projects in Annex 2 , 13.
– Monument to commemorate the
millenium in Dublin City centre
Objectives of EIA is to ensure
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(i)
that competent authorities can make their
decisions with "full knowledge"of the likely
significant environmental effects of any consent
given
(ii) having taken into account the results of public
participation in the process and
(iii) the views of the bodies (including other
Member States when appropriate) required to be
consulted.
BEFORE CONSENT IS GIVEN
Alternatives considered
Must they be considered?
 How extensive is this obligation?
 Must the best alternative be chosen?
 Corrib gas case (forced alternative).
Slane Bridge (alternatives not
adequately explored!)
 Techniques for forcing choices of
alternatives
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Principles of EU Env Law
involved
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Enables authorities to take a precautionary
approach to new developments likely to have
significant environmental effects,
to ensure that environmental damage is
rectified at source and
to ensure that the polluter pays for likely
adverse impacts on the environment by
preventing or mitigating adverse effects.
Steps
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1. If EIA required, developer prepares EIS and non
technical summary
2. Can if she wishes, have it scoped by competent
authority with or without public consultation
3. Submits EIS with application for consent
4. Public and bodies with specific environmental
responsibilites and NGOs and (maybe) other Member
States must be consulted
5. Adequacy is assessed by competent authority
6. Project is assessed having regard to the EIS and
the results of the consultation procedure
Art 6 Public participation
“early and effective opportunities to
participate”
 When all options are open
 Before the decision is taken
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Participation by public and
NGOs essential
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The EIA process must involve the
public, authorities with environmental
responsibilities and, in cases where the
project is likely to have transboundary
impacts, other affected Member States,
in the consent procedure.
Commission v Spain
National screening systems must take full
account of
 nature, size and location of Annex II
projects, with reference to Annex III
criteria
Must the project be the main
project?
No – can be ancillary aspects if they are
likely to have significant effects
 Commission v Ireland (windfarms case)
 No EIA required for windfarms at that
time but constructing the windfarm
involved making a road up the
mountain and displacing peat..
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Cases on projects
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Waddenzee: cockle fishing
EIA and the Irish Courts
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Lancefort Ltd. v. An Bord Pleanála- company
incorporated after decision can seek JR
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O’Nuallain v. Dublin Corporation
Good and bad effects. Same in UK
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Kenny v. An Bord Pleanála
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Effects on environment, not just local effects.
Maher
Again in Maher v An Bord Pleanála[1]
[1999] 2 ILRM 198.
 [1]Kelly J. in the High Court held that
weaners and finishers should have been
included in the calculation of what was a
"pig" for the purposes of deciding if an
EIS was required.
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An example of a “wide” interpretation of
a word in legislation
Art 9 Reasons for decisions
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Publication of the content of the decision and any conditions
attached thereto,
- having examined the concerns and opinions expressed by the
public concerned, the main reasons and considerations on which
the decision is based, including information about the public
participation process,
- a description, where necessary, of the main measures to
avoid, reduce and,
if possible, offset the major adverse effects.
2. The competent authority or authorities shall inform any
Member State which has been consulted pursuant to Article 7,
Must EIA be in writing
YES! Too unsafe not to have it in
writing . Corrib gas settlement.
 Uncertainty of nature and extent of the
duty …
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Art 10 a
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Judicial review of substantive and
procedural merits of decisions.
SEA
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See presentation at
http://www.abgs.gov.tr/tarama/tarama
_files/27/SC27EXP_EIA%20and%20SEA
.pdf
SEA for plans and programmes
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– be prepared and/or adopted by an
authority at
national, regional or local level AND
– be required by legislative, regulatory or
administrative provisions.
The definition includes:
– modifications of plans and programmes
– those co-financed by the EC
Art 3
prepared for agriculture, forestry, fisheries,
 energy, industry, transport, waste/ water
 management, telecommunications, tourism,
 town & country planning or land use
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 which set the framework for future development
 consent of projects listed in the EIA Directive
 OR
 b) that require an assessment under Article 6 or 7
 of the Habitats Directive
Environmental report
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Must identify, describe and evaluate:
• the likely significant environmental effects of
implementing the plan / programme, including
– effects on biodiversity, soil, water, air, climatic factors
– effects on population, human health, architectural and
archaeological heritage, landscape
• reasonable alternatives taking into account the
objectives and the geographical scope of the
plan / programme
alternatives must include the « zero » alternative
PS Mitigation measures
Issues: public participation on them
 Requirements as to info that must be in
EIA
 ECJ decision must be made in “full
knowledge” of all significant effect
 But if modest in scope and known to
work, clearly defined and confident that
they will work……..
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