Brussels bids to get transboundary EIA convention ratified

A proposal for the EC and its Member States to ratify a new international convention on environmental impact assessment (EIA) has been made by the European Commission.1 The convention applies only to projects likely to have significant transboundary impacts and hence will have a limited effect on the UK, with the most obvious potential exceptions being nuclear and offshore oil and gas projects.

The draft Decision concerns the UN Economic Commission for Europe's Convention on EIA in a transboundary context, signed at Espoo in Finland in February 1991.

If adopted by the EC Member States, the proposal would oblige both the EC as a whole and the Member States individually to ratify the Convention by an as yet undetermined date.

The main effect of the Convention within the EC would be to make more explicit the procedures to be followed when a project is likely to have significant transboundary effects, and open them up to public involvement at an early stage.

The EC's existing rules, laid down in the 1985 Directive on environmental assessment, provide only that in such cases the information gathered during an environmental assessment in the country in which the proposed project is to be located should be forwarded on request to other Member States liable to be affected, and that this information should "serve as a basis for any consultations necessary in the framework of the bilateral relations between two Member States on a reciprocal and equivalent basis."

The procedures laid down in the Convention are triggered where a type of project listed in an Appendix I is "likely to cause a significant adverse transboundary impact." However, any party to the Convention may propose that a project not listed in Appendix I should be subject to the same procedures, although this will only happen if the country in which the project is to be located - the "party of origin" - concurs. Any disputes on this issue can be referred to an arbitration tribunal, while an inquiry commission can be established at the request of any party to the Convention to rule whether significant environmental impacts are likely in disputes over Appendix I projects.

The projects listed in Appendix I include all those in Annex I of the EC Directive, for which environmental assessments are mandatory. In addition, Appendix I includes:

Nuclear fuel production, enrichment or reprocessing facilities

Major non-ferrous metal works

Large-diameter oil and gas pipelines

Large dams and reservoirs

Groundwater abstraction at an annual rate of 10 million cubic metres or more

Pulp and paper production of 200 air-dried metric tonnes or more per day

Major mining, on-site extraction and processing of metal ores or coal

Offshore hydrocarbon production

Major storage facilities for petroleum, petrochemical and chemical products

Deforestation of large areas

The procedure in cases which qualify under the Convention begins when the party of origin notifies potentially "affected parties" of a proposed project. The affected party may then elect to participate in the EIA. This embraces not just the preparation of an environmental statement, but a national procedure for evaluating the environmental impact of a project.

Significantly, the Convention provides that the public in areas likely to be affected by a project must be given an opportunity by the party of origin to participate in "relevant" EIA procedures, and that this opportunity must be "equivalent" to that provided to the party of origin's own nationals. This opens up the interesting possibility of foreign nationals appearing at British public inquiries.

Appendix II of the Convention lays down the minimum information which must be included in the EIA documentation. This is somewhat more extensive than that required by the EC Directive. Additional requirements under the Convention include a description, "where appropriate, of reasonable alternatives (for example, locational or technological) to the proposed activity and also the no-action alternative."

Once the EIA documentation is completed, the party of origin is obliged to consult the affected party on the transboundary impacts predicted and on mitigation measures. The consultations may also cover possible alternatives to the proposed activity, including the no-action option.

The Convention goes on to require that, when the final decision on a project is taken, "due account" must be taken of the outcome of the EIA, including not only the EIA documentation but also the outcome of these consultations and representations by the public.

With the exception of disputes over whether a project is likely to have significant transboundary effects, which would be settled by an inquiry commission, resolution of disputes between parties over the interpretation or application of the Convention is to be pursued in the first instance by a procedure agreed between the parties. Where this fails, the dispute can be referred either to the International Court of Justice or to an arbitration tribunal established under the Convention, provided the parties concerned have accepted these when ratifying the Convention.

The Convention will enter into force 90 days after 16 countries have ratified it. Ratification by a sizeable number of EC countries will be necessary for the Convention to take effect, and it remains to be seen what attitude they take to the Commission's proposal.

The UK, with only one land border, is likely to be among the countries least affected by the Convention. However, conflicts have arisen in recent years with Eire and the Scandinavian nations over the transboundary effects of nuclear projects at Sellafield and Dounreay, and it is not inconceivable that Norway and the Netherlands would seek to use the procedures laid down in the Convention to influence oil and gas projects in the UK sector of the North Sea.

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