The Environmental Impact Assessment (EIA – VIA)

1. The Environmental Impact Assessment(EIA – VIA) dr. Attilio Balestreri attilio.balestreri@buttiandpartners.com UNIVERSITY OF PADUAFACULTY OF ENGINEERING Second Cycle Degree in Environmental Engineering 2012-2013

2. 1. History of the EIA The Environmental Impact Assessment was born in USA in 1969  National Environmental Policy Act (NEPA) The NEPA was the first Act that contained a provision of an environmental assessment of a project 27 June 1985: Council Directive on the assessment of the effects of certain public and private projects on the environment (Directive 85/337/EEC) The 1985 EIA Directive was (and is, also today) the main step in European law about the assessment of the environmental effects of projects, because it introduced the basic principles of environmental assessment

3. 1. History of EIA (2) In 1987 “Brundtland Commission” (World Commission on Environment and Development) created the concept of sustainable development “a development that meets our needs today without depriving future generations of the opportunity to meet their needs” A graphical illustration of the concept of sustainable development: This is the target of the EIA Sustainable project

4. 2. The 1985 EIA Directive: the first step…Main principles The Environmental Impact Assessment (Directive 85/337/EEC), three main characters • identified the possible (direct or indirect) impacts of a project on: a) human beings, fauna and flora (“living target”); b) soil, water, air, climate, landscape (“natural target”); c) material assets and cultural heritage (“material target”); d) the interaction between the previous factors (cumulative impacts) • analyzedthe interaction of the possible impacts (evaluating the views of interested parties), • evaluatedthem by finding the “best solution”.

5. Cumulative impacts Cumulative impacts evaluation in EIA human beings Project material assets and cultural heritage fauna and flora soil, water, air, climate, landscape

6. 2. The 1985 EIA Directive: key words Five keywords to understand the EIA: • preventive action; 2. comprehensive or "integrated“ approach; 3. specific and marked administrative procedure; 4. detailed technical evaluation; 5. participation of the public concerned by the implementation of the project (AArhus Convention)

7. 3. The development of EIA in Europe after 1985 main steps After 1985, many measures have been introduced about the topic of environmental impact assessment in European legislation. Each intervention has substantially amended the Directive, without changing it in the text. problems in interpreting and applying the Directive 2011: action to unify into a single text

8. 4. The “new” EIA directive: 2011/92/EU 17 february 2012: entry into force of the 2011/92/EU Directive on the assessment of the effects of certain public and private projects on the environment The Directive brings together the following principles: brings together into a single text all the previous European acts about EIA Prevention Proportionality Precaution Polluter pays

9. The “new” EIA directive: 2011/92/EU (2) The directive applies to: “projectswhich are likely to have significant effects on the environment”. Projects = Plans/Programs A “project” as defined in the Directive is: a) the execution of construction works or of other installations or schemes; b) other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources The term “project” involves a material operation to be carried out (different from a plan) Environmental Impact Assessment (EIA-VIA) Strategic Environmental Assessment (SEA-VAS)

10. The “new” EIA directive: 2011/92/EU (3) The Directive applies to three groups of public or private projects: • projects which are necessarily subject to environmental impact assessments (Annex I); • projects that are optionally subjected to environmental impact assessment (Annex II – the Member State can decide); • other projects, that the Member State has chosen to undergo to the EIA (on a case-by-case examination). In these cases, the development consent should be granted only after an assessment of the likely significant environmental effectswhich must take into account: - participation of private and of public administrations interested in the execution of the work; - specifical procedural steps; - different possibilities of realization of the project (“new”). The directive does not cover projects serving national defence purposes.

11. Important projects under EIA in the Directive 2011/92/EU Some examples… • Construction of lines for long-distance railway traffic and of airports with a basic runway length of 2100 m or more; • Construction of motorways and express roads; • Waste disposal installation for the incineration, chemical treatment; • Waste water treatment plants with a capacity exceeding 150.000 population equivalent; • Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonn/day in the case of petroleum and 500.000 m3/day in the case of gas; • Installations for storage of petroleum, petrochemical or chemical products with a capacity of 200.000 tonnes or more The list contains different kinds of plants, installations, construction. The link between them is that they can create relevant impacts… The aim of EIA is to assess them and to find the “best solution”

12. The “new” EIA directive: 2011/92/EU (4) 1. Informations from the Developer to Authorities (and public) To enable the competent authority to assess the project, the developer must provide many informations, contained in the EIA report: • a description of the project comprising information on the site, design and size of the project; • a description of the measures envisaged in order toavoid, reduce and, if possible, remedy significant adverse effects; • the data required to identify and assess the main effects which the project is likely to have on the environment; • an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects; • a non-technical summary of the previous informations. 2. Informations from Authorities to Developer The Authoritiesholding relevant informations about the project or the area where the project will be realized must give them to the developer.

13. The “new” EIA directive: 2011/92/EU (5) Opinion expressed by the Authorities Opinions expressed by the public Technical evaluation of the project EIA Report Relevant informations Costs/benefits analysis Proportionality Precaution Technical evaluation Social evaluation Main alternatives Positive: The project can be realized according to the project or in a different way Negative: the project can’t be realized Decision

14. The “new” EIA directive: 2011/92/EU (6) The Directive concludes with a series of important information, in particular: - in the Environmental Impact Assessment the Authority must provide monitoring measures; - after the decision of the Authority the developer must have the possibility to apply for judicial review; - in any case, any change to the project must be evaluated by the Authorities.

15. 5. EIA in Italy (VIA) In Italy, the environmental impact assessment is laid down in Articles 19 and following of Legislative Decree n. 152 of 2006. The Italian legislation applies the principles set forth by the European Directive. In particular, there is a specific procedure to carry out the environmental impact assessment, through the following steps: a) screening of the project (only if the EIA is optional); b) definition of the content of the EIA report; c) submission and publication of the project; d) Consultations ; f) assessment of the environmental study and of the results of the consultations; g) decision; h) information about the decision to the public concerned; i) Monitoring phase.

16. EIA in Italy (VIA) – competent Authority The environmental impact assessment is carried out: • By the Ministry of the Environment for the projects listed in Annex 2 (Part II, legislative decree n. 152/2006); • By the Region or by a different authority identified by the Region (Province) for the projects listed in Annex 3 (Part III, legislative decree n. 152/2006). For the projects listed in annex 2 and 3 the EIA must be carried out. For the projects listed in Annex 4 and for other particular projects (see art. 6.7 of legislative decree 152/2006) a previous screening must be carried out to assess whether to do the EIA or not.

17. EIA in Italy (VIA) administrative procedure 1.Application 2. Screening (if necessary) (max 90 days) 3. Evaluation of completeness of documentation and Authorities can ask for further documentation (if necessary) 4. Publication on newspapers and on the Authority’s website 5. Anyone interested may submit observations about the project (if necessary, further amendments of the project) 6. Evaluation of the project 7. Decision (with prescriptions, if necessary) Within 30 days Within 60 days Within 150 days From the application There is no sanction for failing to meet deadlines of the procedure, but in a decision of the main italian administrative court (Consiglio di Stato n.1271/2011) is said that the non-compliance of the terms entitles the developer to ask for compensation

18. EIA in Italy (VIA)contents of the EIA report Contents of the EIA report a) a description of the project comprising information on characteristics, location and dimensions; b) a description of the measures to prevent, reduce and, if possible, remedy significant adverse impacts; c) the data required to identify and assess the main impacts on the environment and the cultural heritage that the project may 'produce, both under construction and in operation phase; d) an outline of the main alternatives studied by the applicant, including the so-called zero option, with indication of the main reasons for his choice, taking into account the environmental effects; e) a description of monitoring measures. In particular, between the contents of the EIA report is provided the evaluation of the project alternatives. The Italian legislation explicitly provides that the developer should also consider the “zero option” consisting in the possibility not to carry out the work. If the “zero option” is not taken into account, the project is uncomplete and cannot be approved (see if it is provided  evaluate it)

19. EIA and authorizations: different measures … necessarily linked EIA and permits to operate (such as IPPC-AIA) are different measures.  EIA: assesses the impacts of a project; • AIA: authorises to operate However, these measures are strictly linked, they can be: • One following the other; • Merged into a single measure (EIA, that in some italian Regions authorises to operate) EIA IPPC-AIA In any case, EIA and authorization to operate must provide coherent provisions

20. EIA in Italy (VIA)monitoring Following the European provisions, the italian legislation on EIA provides that the monitoring should be carried out in accordance with the following criteria: • Controls must be provided in the EIA; • Controls can be carried out by the environmental Agencies; • Controls must take into account all the provisions of the EIA; • Controls must take into account the impacts of the project, to evaluate if they are compliant with that illustrated in the EIA report; • After monitoring, the Authority can modify the provisions contained in the EIA.

21. EIA in Italy (VIA)sanctions Article 28 of legislative decree no 152/2006 1. Violations of prescriptions established by the Authority during the EIA or design changes likely to affect outcomes and impacts:  the Authority requires the developer to modify the work or intervention, setting the terms and mode;  If the developer does not comply with what is required, the Authority operates directly, but the developer is required to bear the costs. • Works and interventions made without prior EIA or substantial difference between what is realized and what was assessed:  the Authority evaluates the entity of the major environmental impact caused, provides the suspension of the work and (if necessary) provides the demolition of the works;  If the developer does not comply with what is required, the Authority operates directly, but the developer is required to bear the costs;  authorization that has been released is invalid.

22. Conclusions… To carry out the EIA we must answer some questions about the project: - where  is it the best place? - how  positive technical assessment? - when  is it necessary to build today? - why  what is the public opinion? And the opinion of the Authorities? - what  between the alternatives, what is the best? There are also many other questions about the EIA… let’s see some of these questions that have been decided by the ECJ (European Court of Justice)

23. 6. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Project Is a demolition work a project? Is the renewal of an existing permit a project?

24. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Is a demolition work a project? YES As regards the question whether demolition works come within the scope of Directive 85/337, (…) it is appropriate to note, at the outset, that the definition of the word ‘project’ in Article 1(2) of that directive cannot lead to the conclusion that demolition works could not satisfy the criteria of that definition. Such works can, indeed, be described as ‘other interventions in the natural surroundings and landscape’. (C-50/09, Commission v. Ireland, paragraphs 97-101) Is the renewal of an existing permit a project? NO It follows that, in any event, the renewal of an existing consent to operate an airport cannot, in the absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a ‘construction’. (C-275/09, Brussels Hoofdstedelijk Gewest and Others, paragraphs 27-30)

25. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Beginning of works and EIA What is the order between EIA and beginning of works?

26. ECJ’s (European Court of Justice) decisions on EIA: questions and answers What is the order between EIA and beginning of works? “Article 2 of the EIA Directive must necessarily be understood as meaning that, unless the applicant has applied for and obtained the required development consent and has first carried out the environmental impact assessment when it is required, he cannot commence the works relating to the project in question”. (C-275/09, Brussels Hoofdstedelijk Gewest and Others, paragraph 36)

27. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Splitting of projects “A project as a whole must be subjected to environmental impact assessment. Is it possible to avoid the environmental impact assessment by dividing the project into several parts? (splitting the project)”

28. ECJ’s (European Court of Justice) decisions on EIA: questions and answers A project as a whole must be subjected to environmental impact assessment. Is it possible to avoid the environmental impact assessment by dividing the project into several parts? (splitting the project) NO The purpose of the EIA Directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the EIA Directive. (C-392/96, Commission v. Ireland, paragraphs, 76, 82; C-142/07, Ecologistas en Acción-CODA, paragraph 44 ; C-205/08, Umweltanwalt von Kärnten, paragraph 53; Abraham and Others, paragraph 27; C-275/09, Brussels Hoofdstedelijk Gewest and Others, paragraph 36)

29. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Small-scale project Is it possible to apply the Environmental Impact Assessment to small-scale projects?

30. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Is it possible to apply the Environmental Impact Assessment to small-scale projects? YES, if they have significant effects on the environment “Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the EIA Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration”. (C-392/96, Commission v. Ireland, paragraph 66)

31. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Participation in an environmental decision-making procedure as a condition to have access to a review procedure Who can participate and have access to a review procedure?

32. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Who can participate and have access to a review procedure? Article 10a of the EIA(…) is intended to implement the Aarhus Convention, provides for members of the public concerned who fulfill certain conditions to have access to a review procedure before a court of law or another independent body in order to challenge the substantive or procedural legality of decisions, acts or omissions which fall within its scope. Thus, according to the wording of that provision, persons who are members of the public concerned and either have sufficient interest, or if national law so requires, maintain that one of the projects covered by Directive 85/337 impairs their rights, are to have access to a review procedure. It is also apparent therefrom that any nongovernmental organisations which promote environmental protection and meet the conditions which may be required by national law satisfy the criteria, with respect to the public concerned who may bring an appeal, laid down in Article 1(2) of Directive 85/337 read in conjunction with Article 10a. (C-263/08, Djurgården, paragraphs 32-39)

33. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Transboundary projects Is it possible to extend the EIA to projects that have transboundary effects?

34. ECJ’s (European Court of Justice) decisions on EIA: questions and answers Is it possible to extend the EIA to projects that have transboundary effects?  YES, it is mandatory Projects listed in Annex I to the EIA Directive which extend to the territory of a number of Member States cannot be exempted from the application of the Directive solely on the ground that it does not contain any express provision in regard to them. Such an exemption would seriously interfere with the objective of the EIA Directive. Its effectiveness would be seriously compromised if the competent authorities of a Member State could, when deciding whether a project must be the subject of an environmental impact assessment, leave out of consideration that part of the project which is located in another Member State. That finding is strengthened by the terms of Article 7 of the EIA Directive, which provide for inter-State cooperation when a project is likely to have significant effects on the environment in another Member State. (C-205/08, Umweltanwalt von Kärnten, paragraphs 54-56)

35. Thank you for your attention