UNECE “Espoo” Convention on EIA in a Transboundary Context & Protocol on SEA

Elena Santer, Secretary to the Implementation CommitteeEspoo Convention & Protocol on SEA

2019 Judicial colloquium (Geneva, 27-28 February 2019)

E N V I R O N M E N T

ENVIRONMENT

Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) Procedure Linkages with the Aarhus Convention Challenges and possible solutions Interpretation of the Convention by the Implementation

Committee and the Meeting of the Parties Protocol on Strategic Environmental Assessment (Protocol

on SEA) Procedure Linkages with the Aarhus Convention Challenges and work of the Implementation Committee

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Overview

ENVIRONMENT

Convention on Environmental Impact Assessment in a Transboundary Context

Adopted in Espoo (Finland) in 1991, in force since 1997 Has 45 Parties, in UNECE region, including EU Accession by all UN member States

possible in the future

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UNECE Espoo Convention: Basic facts

ENVIRONMENT

Applies to: planned activities with likely significant adverse environmental impacts across boarders

(Power plants&related; cross-boarder infrastructure; water related; mining, waste management; airports (See: Appendix I, non-Appendix I, further to article 2.5: Appendix III))

reference to discussions on determining signifiancehttp://www.unece.org/env/eia/pubs/cepwg3r6.html

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UNECE Espoo Convention: Basic facts

ENVIRONMENT

To ensure environmentally sound and sustainable developmentRio Declaration and Agenda 21 (Principle 19): “States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse ttransboundary environmental effect and shall consult with those States at an early stage and in good faith”.

To enhance international co-operation in assessing environmental impact To prevent, mitigate and monitor significant adverse transboundary

environmental impact (art. 2.1) To give explicit consideration to environmental factors early in decision-

making, at all administrative levels To improve quality of information – leading to environmentally sound

decisionsPreamble, para. 2, 3, 4, 7

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Espoo Convention objectives (implied)

UNECE Espoo Convention:

Requirements

Transboundary procedure applies between Parties(governments)

Espoo Convention

Linkages with Aarhus Convention

Related articles of the Aarhus Convention Preamble, including

para. 23 referring to the Espoo Convention

Objectives (article 1) Definitions (Article 2) Access to information

(article 4) Collection and dissemination of

environmental information (article 5)

Public participation in decisions on specific activities (article 6, including Annex I)

Aarhus Convention

Espoo Convention

National Transboundary

Transboundary ONLY

Espoo Convention

Espoo Convention:

provisions on public

participation

Joint responsibility of governments of Party of origin and affected Parties

If there is transboundary procedure - public from affected Party (from areas likely to be affected) must have equivalent opportunities (Espoo Convention Art.2.6)

Article 2. General Provisions

Article 3. Notification

Article 4. Preparation of the EIA documentation

Article 6. Final decision

ENVIRONMENT

Social, economic, cultural differences between Parties National implementation of the Convention varies Diversity of legal & practical approachesWestern concept vs. OVOS/State expertise systemFramework law supported by a number of secondary legislation vs.

Detailed procedural law on EIA with fewer regulations Unclarity about: time frames for procedural steps (delays), translation

of documentation, cost sharing; procedure for consultations Differences in Parties definitions of and approach to key terms (such as

impact; transboundary impact; significance of the impact; major change; final decision (identification/ receipt)

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Espoo Convention: Challenges

ENVIRONMENT

Difficulty in identifying whom to notify and ensure receipt (in particular for Federal States) Challenging project types: Joint projects & Nuclear project Challenges related to public participation

Legislation and practice on public involvement vary; Frequent lack of definition of «the public»; Late public involvement; Limited access to (understandable) information; Quality of the information; Limited or “overwhelming” public interest

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Espoo Convention: Challenges

ENVIRONMENT

Espoo Convention: Solutions (1)

Many practical difficulties can be overcome through better awareness & cooperation between Parties e.g. through: Bilateral or multilateral agreements or other arrangements (article 8,

and appendix VI) South-Eastern Europe: Bucharest Agreement (in force since 2011) [Protocol on the transboundary EIA under Tehran Convention

on Caspian Sea, summer 2018); Black Sea (recommendations)]

Joint bilateral/multilateral bodies Exchanges between national focal points (information through

reporting) Sharing of good practice (sub-regional workshops, guidance) Technical assistance & Capacity building (pilots etc) Formal legal dispute resolution process (Appendix VII)

Inquiry Procedure (article 3.7 & Appendix IV) Romania vs Ukraine: Bystroe Canal

ENVIRONMENT

Espoo Convention: Solutions (2)

Review of compliance by the Implementation Committee (decision III/2, appendix as amended by decision VI/2, appendix)

ENVIRONMENT

Espoo Convention: Solutions (2)

Objective - to review compliance by the Parties with their obligations under the Convention and (from 2011) the Protocol with a view to assisting them fully to meet their commitments.

Review of compliance by the Implementation Committee (decision III/2, appendix as amended by decision VI/2, appendix)

ENVIRONMENT

Espoo Convention: Solutions (3)

Submissions by the Parties including self-referral (EIA/IC/S/1..5) Committee Initiative Specific compliance issues in the review of

implementation/national reports (i.e. reporting, legislative framework, public participation) Information from other sources, e.g. NGOs,

political parties and the secretariat ...

Adopted by the MOP Revised by the MOP Not considered by the MOP

ENVIRONMENT

Espoo Convention: Solutions (3)

National implementation: Legislative framework (article 2.2) Direct application of the Convention - not

sufficient (CI/1, CI/2)

ENVIRONMENT

Espoo Convention: Solutions (3)

National implementation:Legislative framework (article 2.2)Legislation and practice on public involvement vary

ENVIRONMENT

Espoo Convention: Solutions (3)

Differences in Parties’ definitions of key terms Example: Final decision (article 6)

ENVIRONMENT

Espoo Convention: Solutions (3)

Reference to domestic remedies by the IC Example: Hinckley Point C

ENVIRONMENT

Espoo Convention: Solutions (3)

Domestic remedies vs. findings of the Committee

Example / Hinckley Point C

ENVIRONMENT

Espoo Convention: Solutions (3)

Linkages with the Aarhus Convention (public participation) Example / Hinckley Point C

Irish NGO is concerned that its comments are not taken into account further to the article 6 since the decision-making is finalized and the activity’s implementation has begun;Irish Government is satisfied with the process offered by the UK outside of the Convention

Transboundary procedure is carried out only if the affected Parties so wish

Text of the Convention Guidelines adopted by the Meeting

of the Parties Reviews of Implementation Decisions on review of Compliance

Opinions of the Committee Findings and recommendations

of the Committee on specific matters Good practice recommendations on

application of the Convention toNuclear related activities Upcoming Guidance on the applicability the

Convention to the lifetime extension of NPPs

ENVIRONMENT

Espoo Convention: Resources

PROTOCOL ON STRATEGIC ENVIRONMENTAL ASSESSMENT to the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)

ENVIRONMENT

Protocol on SEA to the Espoo Convention Adopted in Kyiv, 2003, in force since 2010 Has now 32 Parties, in UNECE region, including EU Open to all United Nations Member States Applies to public plans & programmes at

national level or with likely transboundaryimpacts + to policies and legislation, as appropriate

Similar to EU SEA Directive but with stronger emphasis on healthand public participation

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Protocol on SEA: Basic facts

ENVIRONMENT

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Objectives

Article 1

To provide for a high level of environment, including health protection by: Ensuring that environmental, including health, considerations are

thoroughly taken into account in the development of plans and programmes;

Contributing to the consideration of environmental, including health, concerns in the preparation of policies and legislation;

Establishing clear, transparent and effective procedures for strategic environmental assessment;

Providing for public participation in strategic environmental assessment; and

Integrating by these means environmental, including health, concerns into measures and instruments designed to further sustainable development.

PROCEDURE SET BY THE PROTOCOL ON SEAmainstreams environmental and health considerations into development planning and policy making

article 4

article 5 article 6

article 7

article 8

article 10article 9article 9

article 11article 12

Linkages with Aarhus Convention

Aarhus Convention

Protocol on SEA

National Transboundary

National Transboundary

Aarhus Convention Preamble Objectives (article 1) Definitions (article 2) Access to information

(article 4) Collection and dissemination of

environmental information (article 5)

Public participation concerning plans, programmes, policies (article 7 & article 6. paras. 3, 4, 8)

ENVIRONMENT

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Protocol on SEA: Challenges (in many UNECE countries)

Lack of proper legal and regulatory basis Insufficient awareness and understanding of the procedure and its

benefits across the sectors (seen as costly, time consuming and complicated) Insufficient public interest – and high-level political backing Lack of capacities to implement at regional and local levels Lack of proper institutional structures/culture for consultation

across sectors and tiers of governments and for public participation From 2nd Review of Implementation: Need to ensure that SEA

documentation systematically covers health, including transboundary effects; translation issues; differences in national practice; lack of bilateral agreements to facilitate transboundary consultations

ENVIRONMENT

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Protocol on SEA: Example of files considered by the Committee

• Specific Compliance issue:• European Union SEA.IC.SCI.1.4

• EU did not complete and return the questionnaire on its implementation of the Protocol in the period from 2010 to 2012, according to the obligation set in article 14, paragraph 7, of the Protocol

Information from other sources• EIA/IC/INFO/14 => SEA/IC/INFO/1/Serbia/energy strategy and spatial

plan• SEA/IC/INFO/3/Ukraine/ Hydro Energy programme

ENVIRONMENT

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Protocol on SEA: Example of complains to the Committee from public

An NGO complained that a Party did not apply SEA procedure at a national level to one of its programmes that sets framework for a development consent Art. 24 (Entry into force), par. 4

4. This Protocol shall apply to plans, programmes,policies and legislation for which the first formal preparatory act is subsequent to the date on which this Protocol enters into force. Where the Party under whose jurisdiction the preparation of a plan, programme, policy or legislation is envisaged is one for which paragraph 3 applies, this Protocol shall apply to plans, programmes, policies and legislation for which the first formal preparatory act is subsequent to the date on which this Protocol comes into force for that Party.

ENVIRONMENT

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Selected resource materialshttp://www.unece.org/env/eia/publications.html

Protocol on SEA: Facts and Benefits (Good Practice Recommendations on Public Participation in SEA

Resource Manual to Support Application of the SEA Protocol + Simplified Resource Manual

Reviews of implementation and national reports http://www.unece.org/env/eia/implementation/review_implementation.html

Opinions of the Implementation Committee (2001-2017)http://www.unece.org/env/eia/implementation/implementation_committee.html

Decisions by the Meetings of the Parties

Upcoming Guidance on assessment of potential health impacts of plans and programmes and for the involvement of health authorities in SEA

E N V I R O N M E N T

Elena SanterSecretary to the Implementation Committee Espoo Convention and the Protocol on SEA UNECEeia.conv@un.orghttp://www.unece.org/env/eia/welcome.html

Thank you!