Rationale
Directive 2001/42/EC, the Strategic Environmental Assessment Directive (SEA Directive) aims to provide for a high level of environmental protection by integration of environmental consideration into the preparation and adoption of plans and programmes (P&P), by ensuring that an environmental assessment is carried out at the strategic level for certain P&P which have been deemed to have likely significant effects on the environment. The Directive has nearly been in effect for ten years, and with the ongoing review of its sister directive the Environmental Impact Assessment (EIA) Directive, it is highly possible that the SEA Directive will be up for review soon. Below are some of the identified short-comings of the SEA Directive that need to be addressed.
The definition of Plans and Programmes (P&P)
The precise definition and meaning of P&P under the SEA Directive have been considered by a number of European Union Member States to be unclear and ambiguous. This has the effect that policies and legislation are often not subject to a strategic environmental assessment under the current Directive, as they do not qualify under the vague definition of P&P. Member States may risk calling something a “policy” when it could equally qualify as a P&P, thus exempting it from compulsory environmental risk assessment. The distinction between “P&P” and “policy and legislation” and their overlap urgently need to be addressed. A 2009 study revealed that in Denmark, the Ministries of Climate and Energy and Transport Infrastructures in the central government P&P to which no SEA procedure is undertaken [1]. They have defended these decisions from a position where they have stated that that their decisions have been adopted under a legislative approach, and as such the P&P automatically qualified as pieces of legislation. As such, the most far reaching infrastructure decisions in Denmark have not been assessed with regard to their impact on the environment at the strategic level, which from an environmental point of view should be considered unacceptable state behaviour. The transport sector in Denmark is the second largest contributor of CO2 emissions in Denmark (22% in 2008 and increasing [2]). The effects that transport and infrastructure decisions have on the climate are thus completely omitted at the strategic level in Denmark. In addition, a questionnaire by the European Environmental Bureau (EEB) revealed in 2005 that Member States had a hard time distinguishing between “P&P” and “policies and legislation” and often had not subjected a P&P to a strategic assessment because they had deemed it to qualify as a policy. EEB found additional cases in over 10 countries where national energy and transport plans had not been subject to an SEA, because they were presented as policies [3]. These are clear cases of misapplication of the SEA Directive that need to be addressed. One option may be to extend the scope of the SEA Directive to include policies and legislation, in addition to P&P, as is done under the more recently adopted UNECE Strategic Environment Assessment Protocol.
Scoping
When determining whether a P&P is likely to have a significant environmental effect and whether it must be subject to an environmental assessment, Member States are to specifically consider a set of relevant factors set out in Annex-II. A common problem, known as salami-slicing, appears here. Member States have a tendency to choose only one or two factors found in Annex II for consideration, thus often missing out important effects that a particular P&P may have on the environment. As a result Member States can easily argue that they have given substantial consideration to the effects a particular P&P may have on the environment, but without having given proper attention to a wider range of factors. Article (2) of Annex-II, for example, requires Member States to take cumulative effects of a P&P into account. It is well known that anthropogenic-induced climate change is caused by the accumulation of a wider range of factors. As such, P&P that enhance anthropogenic climate change may be exempted from a strategic assessment. Amendments to the SEA Directive should require that all Annex-II factors are taken into consideration and Member States cannot pick and choose which ones to consider.
The Environmental Report
Where the scoping procedure in Article 3 (1) has determined that a P&P must be subject to an environmental assessment, an environmental report shall be prepared, containing information on ten paragraphs referred to in Annex I. Of particular interest regarding climate change is paragraph (f) of Annex-I which directly requires that the environmental report must include information on impacts of a particular P&P on the climate. A footnote in paragraph (f) requires that the significant effects should include “secondary, cumulative, synergistic, short, medium and long-term, permanent, and temporary positive and negative effects”.
As climate change is a product of a majority of the effects referred to in the footnote of Annex-I, emphasis on the footnote should be made stronger. Currently, it remains a weak provision and the footnote needs to be independently included in the relevant article in order to strengthen climate change consideration in the SEA Directive. The reference to short, medium and long-term effects allows for the inclusion of gases with short atmospheric life-time but high Global Warming Potential (GWP) such as hydro-fluorocarbons (HFCs) and as such has the potential to extend the scope of the environmental assessment beyond the traditional “Kyoto Basket 6” greenhouse gases. The reference to synergistic effects means that the way in which gases combine and interact to create negative effects must also be recognised.
The environmental report is also to take into account “reasonable alternatives”. A report from 2009 [4], however, states that most national legislation does not provide a specific definition of “reasonable alternatives” and that they are defined on a case-by-case assessment. An amendment to the Directive must ensure that “reasonable alternatives” are defined more clearly. In addition, a provision that requires all viable alternatives to be considered and a comparison of alternatives clearly showing the least environmentally damaging option should be set out. The decision to authorise a plan or programme which is more environmentally damaging than identified alternatives then needs to be publicly justified and the decision must be open to debate and questioning.
The above-mentioned issues have all been highlighted in European Union Case-law and as such there is an emerging recognition amongst the judicial commentators that the time has come to address these problems and that there is scope for giving special attention to the impacts of P&P on anthropogenic-induced climate change.
[1] European Commission’s Study Concerning the Report on the Application and Effectiveness of the SEA Directive (2001/42/EC), April, 2009.
[2] http://www.eea.europa.eu/soer/countries/dk/soertopic_view?topic=climate%20change
[3] “Biodiversity in Strategic Environmental Assessment: Quality of National Transposition and Application of the SEA Directive”, 2005, The European Environmental Bureau (EEB).
[4] See [1].
