Public participation Directive to affect IPPC, EIA, waste

A Directive on public participation in certain environmental plans and programmes was agreed in conciliation talks between the Council of Ministers and European Parliament in December. Its main impact in the UK is likely to be in forcing new procedures enabling the public to challenge official decisions under the Directives on environmental impact assessment (EIA) and integrated pollution prevention and control (IPPC).

The new Directive is one element of the EU's strategy for giving effect to the pan-European Aarhus Convention.

One part of the Directive provides for the public to have "early and effective opportunities" to participate in the preparation and review of plans made under six existing EU Directives. These deal with waste, hazardous waste, packaging, batteries, nitrate pollution from agriculture, and air quality management.

As previously reported, the main impact of these provisions in the UK seems likely to fall on regional waste planning and air quality management. However, a seventh Directive - on landfills - which the European Commission originally wanted on the list has been dropped, precluding public participation in the preparation of "conditioning plans" for existing landfills (ENDS Report 313, p 50 ).

The new legislation makes modest changes to the public participation procedures under the EIA and IPPC Directives. It also removes the sweeping exclusion of defence projects from the scope of the EIA Directive. Instead, Member States will now have to decide on a case-by-case basis whether to exclude such projects from EIA, and justify this on the grounds that EIA would have an "adverse effect" on national defence purposes.

One significant demand secured by Parliament was that the public participation provisions should apply under the IPPC Directive during permit reviews where "the pollution caused by the installation is of such significance that the existing emission limit values of the permit need to be revised or new such values need to be included."

Possibly the biggest impact in the UK will stem from the Directive's provisions on public access to justice. It provides that anyone with a "sufficient interest" or claiming that their rights have been impaired must have access to "a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions" under the EIA and IPPC Directives.

The Directive makes clear that non-governmental organisations "promoting environmental protection" must be deemed to have "sufficient interest" for this purpose.

It also provides that the review procedure must be "fair, equitable, timely and not prohibitively expensive." Judicial review, the main route for challenging official decisions in the UK, appears most unlikely to meet these criteria.

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