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The SEA Directive – Implications, Obligations, Strengths and Weaknesses

Conference “Strategic environmental assessment:A tool to promote the quality of plans and programs”Tuesday, 6th March 2012Barcelona

Louis Meuleman

Unit Cohesion Policy and Environmental Impact AssessmentsEuropean Commission, DG Environment

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Outline of the presentation

1. Main achievements and challenges in the implementation of the SEA Directive

• Transposition/implementation phases• Examples

2. Benefits of SEA

3. Opportunities for improvement

4. SEA in the proposed 2014-2020 MFF regulations

5. The future of the SEA

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Policies

Plans & Programmes

covered by SEA Directive (2001/42)

Projects (public - private)

covered by EIA Directive (85/337/EEC, 97/11/EC

• 2003/35/EC & 2009/31/EC;

• -> Consolidated 2011/92/EU)

Habitats and Birds Directives

Water Framework Directive

LandfillDirective

Carbon Capture Storage Directive

IPPC/IED Directive

Waste Framework Directive

The SEA procedure

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(Also transboundary -> SEA Protocol Espoo Conv.)

Elaboration of P/P

Draft P/P

Environmental report & Non-technical Summary

Consultations (environmental report & P/P)

Decision –Article 9 statement

Approval of P/P

Information on decision

Beginning

End of process

The SEA procedure

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• Delayed transposition of the SEA Directive

• Transposition due by 21.7.2004: only 9 of 25 MS had transposed (infringement procedures opened, 5 MS condemned by ECJ).

• By 2009, all MS have transposed the Directive.

• SEA systems are established and operate in all MS.

• Still struggling for correct transposition

• The Commission checks the conformity of the SEA transposition in the MS.

• Infringement procedures were opened for 23 MS

1. Main achievements and challenges: Transposition of the SEA in the EU-27

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� National legislation only covers P/P established by a legislative procedure.

� Exclusion from the SEA scope of P/P in “small areas at local level” (by reference to big administrative units or criteria).

� Failure to transpose all screening criteria of Annex II.

� Technical character of the summary (instead of non-technical).

� No reference to “reasonable” alternatives and the need to take into account the objectives and the geographical scope of P/P.

Examples of incorrect transposition of the SEA (1)

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� No precise identification of the public.

� Lack of concrete designation/timeframes/methods to consult environmental authorities or their exclusion from consultation for some P/P.

� Results of consultations to be taken into account afteradoption (instead of before).

� Lack of concrete arrangements to inform affected MS(before and after adoption of the P/P).

Examples of incorrect transposition of the SEA (2)

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Implementation of the SEA in the EU-27

• Commission’s implementation experience in different areas:

• Legal implementation, i.e. handling of complaints and infringements, EP petitions and written questions

• Assessment of OPs (Cohesion Policy, Rural Dev., Fishery)

• TENs for energy and transport

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Temporal scope

Definition P/P

Screening

Designation env. auth.

Public participation

Sample of 28 infringement cases

Implementation of the SEA in the EU-27

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• 14 infringement cases – plan/programme was outside the rationae tempori scope of the SEA (Article 13(3))

• 7 infringement cases – definition of plan/programme:• voluntary plan/programme (i.e. policies)

• plan/programme at the top of a hierarchy (not required by law)

• 5 infringement cases – screening problems:• no screening at all (mainly urban and land-use plans)

• incorrect screening (e.g. no consideration of certain screening criteria).

• 1 infringement case – environmental authorities to be consulted (Article 6(3))

• 1 infringement case – public participation : consultation and information of the public (Articles 6 and 8)

Implementation of the SEA in the EU-27

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2. Benefits of the SEA (1)

1. Scope of the SEA now more clearly delimited (conditions of Articles 2+3).

2. Integration of environmental considerations into decision making of P&P.

3. “Greening“ of P&P and monitoring of their effects.

4. Strengthened role for environmental authoritiesthrough their participation.

5. Better cooperation different authorities (planning, environment and health).

6. Increased transparency in decision making, due to the involvement of all levels of society.

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Benefits of the SEA (1)

7. Less mitigation measures due to the early inclusion of environmental considerations in the P&P.

8. Contribution of SEA to improved compliance with the requirements of other specific environmental policy areas.

9. Less litigation at project level.

10.Consideration of cumulative effects and of alternatives upstream.

11.Absorption of EU co-financing made easier.

12.SEA saves time and money

The overall assessment is positive, e.g. in Cohesion Policy

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Example: SEA in Cohesion Policy 2007-2013

• Uncertainties, initially, about the application of the SEA.

• Content of the Ops clearly influenced by the SEA (environmental requirements taken into account at the planning stage).

• Relatively low level of public participation in several MS (i.e.tight timetable to adopt the OPs).

• Environmental authorities were fully involved in the decision-making process.

• Quality of the environmental reports varied considerably among MS, and in some cases relatively poor.

• Problems with “minor” modification of OPs.

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‘Minor modifications’ of Operational programmes

Letter from Commission to all Managing authorities in all 27 MS on 07.12.2011 on the implementation of SEA for modifications of Operational programmes (Cohesion Policy):

• Simple financial/budgetary changes: no SEA

• Any change in physical content of an OP: SEA Directiveapplies

-> This implies that SEA screening is obligatory(determination of likely significant environmental

effects):- If no such effects: No new SEA required- If such effects: new SEA has to be made

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Example to avoid – National OPs

Country X: OP TransportEnvironmental report• Not a thorough consideration of environmental impacts – noise?Consultation-Partnership• Commitment to environmental partnership is unclearEnvironmental commitment• Mention of sustainable development (SD) but no practical

commitment• Priorities and adjacent measures are insufficient to meet EC air

pollution strategy targets• Insufficient consideration to green transport – unequal

distribution of funds between priorities (rail vs. road)• Consideration of climate change but no practical

measures/indicatorsMonitoring• Monitoring system is incomplete, insufficient indicatorsOther• Insufficient consideration of relevant EC legislation: Habitats

Directive (Natura 2000) & Water Framework Directive

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Country Y: Regional OPs

Environmental commitment

• Environmental concerns mainstreamed throughout OP

• Environmentally sound priority axes – environment viewed as economic opportunity

• Use of project selection criteria guided by "strategic frameworks" – attract projects focussed on green business, green buildings and green technologies

• The team leading development of the OP had an environmental background

Consultation – Partnerships

• Close links established between OP developers and environmental authorities

Findings from Theophilou (2007)

Example to learn from – Regional OPs

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3. Opportunities for improvement (1)

• Scope of the SEA• Policies/legislative proposals• Review the definition of P&P (e.g. “not required” by

administrative/legislative provisions; private plans?)

• Concepts to be clarified:• P&P which “set the framework”. • P&P which determine the use of small areas at local level.

• More explicit links with other Directives • Both in terms of substance (assessment) and procedures

(e.g. consultation)• Projects: EIA (facilitate interaction – avoid duplication)• P&P from other Directives: Habitats, Water FD, Nitrates,

Renewable…

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• Adopt implementing provisions/guidance: • on concepts (e.g. quality control, monitoring of significant

effects…)• on themes (e.g. climate change, biodiversity, resources

efficiency…)

• Further guidance needed in particular on climate change and biodiversity • Commission guidance for both SEA and EIA Directives

under preparation (expected 2012)

• Exchange of information within MS

• Capacity building (regional/local plans)-> ex ante conditionality 2014-2020

Opportunities for improvement (2)

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The CPR sets out common rules for 9 proposed regulations:

1. European Regional Development Fund – ERDF2. European Territorial Cooperation (ETC)3. European Grouping for Territorial Cooperation - EGTC4. Cohesion Fund – CF 5. European Social Fund – ESF6. European Globalisation Adjustment Fund – EGAF7. European Union Programme for Social Change and Innovation – PSCI8. European Agricultural Fund for Rural Development - EAFRD9. European Maritime and Fisheries Fund - EMFF

4. SEA in the proposed 2014-2020 MFF regulations

Common Provisions Regulation

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SEA in the proposed 2014-2020 MFF regulations

Common Provisions Regulation

� Article 48.4: The ex ante evaluation [of Operational programmes] shall incorporate, where appropriate, the requirements for Strategic Environmental Assessment set out in implementation of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment.-> some clarification needed, as SEA applies on its own merits and is more than an ex ante evaluation (e.g. requirements on monitoring, on informing the public)

� Article 91.1 (f): The Member State or the managing authority shall submit the following information on major projects to the Commission as soon as preparatory work has been completed: (…) (f) an analysis of the environmental impact, taking into account climate change adaptation and mitigation needs, and disaster resilience.

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SEA in the proposed 2014-2020 MFF regulations

Common Provisions Regulation

� ANNEX IV Ex ante conditionalities (Road, Rail): A comprehensive transport plan is in place that contains: (…) a strategic environmental assessment fulfilling the legal requirements for the transport plan.

� ANNEX IV General ex ante conditionalities: The existence of a mechanism which ensures the effective implementation and application of Union environmental legislation related to EIA and SEA

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SEA in the proposed 2014-2020 MFF regulations

Trans-European Transport Network Guidelines

� Article 5 (e): MS and, as appropriate, regional and local authorities, infrastructure managers, transport operators and other public and private entities shall plan, develop and operate the trans-European transport network in a resource efficient way, through: (…) (e) the assessment of strategic environmental impact, with the establishment of appropriate plans and programmes and of impacts on climate mitigation.

� Article 42: (Environmental Protection): Member States and other project promoters shall carry out environmental assessment of plans and projects in particular as provided in Council Directives [on EIA, SEA, Habitats, Birds, Water Framework], in order to avoid or, when not possible, mitigate or compensate for negative impacts on the environment, such as to landscape fragmentation, soil sealing, air and water pollution as well as noise, and to effectively protect biodiversity.

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SEA in the proposed 2014-2020 MFF regulations

Trans-European Energy Infrastructure Guidelines

� Rec. 23: The correct and coordinated implementation of Council Directive 85/337/EC [= EIA] as amended and of the Aarhus and Espoo Conventions should ensure the harmonisation of the main principles for the assessment of environmental effects, including in a cross-border context. Member States should coordinate their assessments for projects of common interest, and provide for joint assessments, where possible.

� Art. 8.4 (Priority Staus PCIs): (…) take measures to streamline the environmental assessment procedures (…) to ensure the coherent application of environmental assessment procedures required under EU legislation for projects of common interest. -> Commission Guidance

(2012-13): Study on streamlining environmental assessments (TEN-E)(2012)

� Art. 9.3: (…) Member States shall endeavour to provide for joint procedures, particularly with regard to the assessment of environmental impacts.

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5. The future of the SEA

• The Directive is still young: in the short term too early to propose amendments.

• Merging the EIA and SEA Directives rejected by MS and stakeholders (clear result from the public consultation (2010) in the context of the review of the EIA).

• Further experience is needed to understand thoroughly its functioning, also in the light of the experience under:

• the SEA Protocol of the Espoo Convention.

• the case-law of the ECJ.

• Amendments will be considered in the longer term.

• Next Commission’s report in 2016.

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Sources

• External study concerning the report on the application and effectiveness of the SEA Directive (2009).

• Commission’s Report on the application and effectiveness of the Directive on Strategic Environmental Assessment (COM(2009)469 final 14.9.2009).

• Commission's experience from the implementation and enforcement of the SEA Directive:

• Handling of complaints and infringements.

• Application of the SEA to the EU co-financedprogrammes for the period 2007-2013.

• Application of the SEA to plans/programmes requiredby the EU legislation (e.g. RBMP).

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Thank you for your attention

http://ec.europa.eu/environment/eia/home.htm