Environmental Assessments - Luna Notes

# Topic 2. Environmental assessments There are two types of environmental assessment: * **Project assessment**: the evaluation of plans and programs. * **Environmental assessment**: the largest and oldest mechanism of environmental law. ## 1. Environmental assessment: origin and characteristics E...

# Topic 2. Environmental assessments There are two types of environmental assessment: * **Project assessment**: the evaluation of plans and programs. * **Environmental assessment**: the largest and oldest mechanism of environmental law. ## 1. Environmental assessment: origin and characteristics Environmental assessment: A technique that makes it possible to know and evaluate the environmental effects of certain human activities (public and private) and to mitigate or avoid their impact on the environment in order to adopt decisions and measures with the objective of the sustainability of the activities evaluated. ### A. Origin The idea of Environmental Assessment was born in the USA in the National Environmental Policy Act (NEPA) 1969, before it affected 1972. **Why was it born in the USA?** * In the USA there was no awareness of a prior policy, a prior administrative control (before) as there was here with activities that had to be authorized in Europe. **What does it require** * Requires a prior study (not an Environmental Impact Statement) (EIS) on the entire federal draft or proposed administrative law or regulation and federal service programs or projects that would have a significant impact on the environment; to determine the impact of that activity and then to regulate; when the federal action would significantly affect the quality of the human environment (broadly defined). **Adoption** * This evaluation was to be generalized in the United States (federal/state) and was to be incorporated into European law: Adoption at the United Nations conference in Stockholm (1972) and Rio de Janeiro (1992). ### B. Features * **Evaluations are regulatory instruments**: which involve a public intervention, an administrative procedure (e.g. authorisations). * **Difference between regulatory instrument, ad intervention and market instrument**: voluntary intervention by companies (which will be awarded in the market despite the fact that the costs are higher, because they favour the environment (example: emissions market (complex because it involves intervention by public authorities), eco-labels, etc). * **Multidisciplinary character**: it is not only legal. It is a global evaluation of the effects of the activities evaluated. It is a multifactorial examination, you have to analyse many activities and see if the risk is acceptable or not (economic, social, environmental, cultural, chemical...). It has a technical nature (it studies the effect of actions, alternatives to projects, using scientific studies. For this, the teams that make the evaluations are multidisciplinary) **Principle of integration with other policies:** * Evaluations must be integrated into all public policies, and that the environment must be taken into account in all policies from the outset. Weighing of public interests. * **Participatory process**: Evaluations guarantee public participation and administrative transparency (Law 27/2006). * **Preventive nature**: it does not involve any decision, but evaluates the impact of the decision analysed (STS 17.11.2008). The evaluation is done before the project is executed. * **Informing nature of the final decision**: it can culminate in the rejection of the project or with its qualification to reduce the negative effects. It is an examination that is made from a decision but an informal decision, with the decision you see if you make it or not, it is part of a transmission in the decision system. ## 2. European, state and regional regulations There is a territorial adaptation: each Autonomous Community has its own regulation (Permanence of the state bases). There is also an integration with state and European regulations: Autonomous Communities, however, each one has to comply with the objectives of the law of 21/2013 (LEA) and the European Union directives on environmental protection. **Specific approaches**: (Catalonia) Some Autonomous Communities prioritise environmental assessment in key sectors such as tourism, urban planning, energy or agriculture, depending on their characteristics. Each Autonomous Community has particularities in terms of procedures, deadlines and types of projects subject to evaluation, so it is essential to consult the specific regional regulations before undertaking a project. **Examples**: 1. **Valencian Community (law 25 June 2014)**: The Valencian system promotes an environmental assessment prior to the granting of urban planning licenses, integrating the environmental authorization processes. 2. **Madrid (2002)**: In Madrid, differentiated procedures are applied for the evaluation of projects and plans and programmes, with emphasis on the protection of the urban and rural environment. 3. **Catalonia 2009**: It includes a regime of specific authorisations for activities with an MA impact. ## 3. Types of Environmental Assessments Environmental assessments are mainly divided into two main types: * **Environmental Impact Assessment (EIA)** * **Strategic evaluation (EE)** ### 1.- Evaluation of plans and projects: the Environmental Impact Assessment (EIA) Procedure that applies to specific projects, more concrete, more in detail (e.g., construction infrastructures, mining operations or industrial facilities) that may have a considerable impact on the environment. **Purpose**: To identify, prevent or mitigate the adverse environmental effects of a project before its authorization. **Applies to**: Very specific projects that require results or impacts that may have on the environment. ### 2.- Evaluation of plans and programs: Strategic evaluation (EE) Procedure on bigger picture plans and programmes which are likely to have significant effects on the environment. It is mandatory for certain plans or programs promoted by public agencies and focuses on early stages of planning. **Objective**: To guarantee the sustainability of plans and programs. ## Other Related Types: ### Integrated Environmental Assessment A process that combines environmental impact assessments with other analyses necessary for the authorization of projects that involve significant risks, such as the emission of pollutants. ### Integrated Environmental Authorizations (AAI) For industrial projects with potentially serious impacts, in which emissions and waste are regulated. <start_of_image> Areas of focus on the evaluation: * **Torrevieja Desalination Plant**: The impact on the marine ecosystem, in particular on Posidonia oceanica, was assessed. The plant was approved, but control (corrective) measures were put in place to minimize impacts on the marine environment. Enlargement also approved. Culture, extraction? **Project evaluation**: regulated in Article II of the LEA (of 2007) (environmental assessment law): articles 33 to 50. **Project concept**: consolidated European knowledge/filosofi (rettsenhet) **Project definition**: First, it defines what a project is: "any technical document that defines conditions (particularly with regard to the location) for the realization of plans and programs, or the realization of constructions or other facilities and works." (European Court of Justice (ECJ) (2006)). **Project (legal definition):** * The execution, operation, dismantling or demolition of a work, construction, or installation. * Any intervention in the natural environment or landscape, including those aimed at the exploitation or use of natural resources or the soil and subsoil, as well as inland or marine waters. * See Annex I of the Environmental Assessment Law: Agricultural, forestry, aquaculture and livestock, extractive industry, mining projects. **Project evaluation**: * Not all projects have a sufficient environmental impact to be subject to an evaluation. Point one: identify which projects are evaluable (materials used, road construction). **Exclusions from evaluation**: * Excluded if it could have a negative impact because it is approved by law (Ex: Detailed projects approved by a law, Agreement of the Council of Ministers or competent regional body: construction of prisons or projects of interest for public security/repair of critical infrastructures (emergency, catastrophe)). **Requirements**: * Exceptional and motivated, Official Publication (transparency), Prior communication to the European Commission (justification/alternative forms of EIA). **Recap**: European regulations are integrated and adapted to the Spanish state that tries to give basic laws to adapt to the Autonomous Communities that can act locally. After the measures, there are evaluations to see if they conform: projects: specific and broader plans and programs. **Evaluation is not the destination but part of the process** Project at end; evaluation in between (what the councils think about the project). Administrative procedures (like a train (Valencia, Madrid: approving or not the project) as hooked and unhooked wagons (environmental assessment: assessing their future vulnerability, impacts). How is this procedure uncertain in the process. ## Competent bodies In a public project, there is always a **substantive authority**, which is the one that authorizes, approves or controls the project; and an **environmental authority** (Ministry of Ecological Transition if it is at the state level; Ministry of the Environment if it is at the level of the CA), which evaluates the project environmentally. In an STC, what was established is that CAs that are impacted by a state project have the right to establish reports on the impact of this project, but these reports are not binding. If the project is private, there will be no intervention by a substantive authority, only the environmental authority. **There are three subjects that act in the evaluation that must be identified:** * **SUBSTANTIVE BODY**: Competent to authorise or approve projects that must be submitted to environmental impact assessment (EIA) (takes the locomotive to Madrid) * **ENVIRONMENTAL BODY**: Competent to evaluate the environmental impact of projects. Assess the impact generated by the project (medium level) * **PROMOTER**: natural or legal person, public or private, who wants to carry out a project that requires the EIA (often a company) **The environmental body:** * Evaluates the project's environmental impact. * It has to be approved by the **Developer:** (who is the substantive body which authorizes the project). **Diagram**: <div align="center"> <img src="" alt="Flow chart showing the environmental impact process for a project."> </div> * **Valence** (the environmental body) ---> The **Substantive body** (Madrid)---> The **Project**. * **Approved the no?** ## 4.2. The Procedure: * **Ordinary procedure**: Projects with a high environmental impact; ends with an environmental impact statement. LEA art. 33-44 * **Simplified procedure**: Smaller-scale or reduced environmental impact projects on the other side need an impact examination, end with the Environmental Impact Report. Art. 45-48 LEA ### 1. THE ORDINARY PROCEDURE **OBJECT** (multiple-choice question) * LEA Annex I Projects. * When modifying (simplified to ordinary) the Projects subject to Simplified EA when decided by the competent environmental body in the environmental impact report in accordance with the criteria of Annex III. * When Modification of the characteristics of a project in Annex I or II when the modification meets the characteristics of Annex I on its own and the Projects subject to a simplified EIA when requested by the promoter voluntarily. **PROCEDURE**: 1. Preparation of EIA (environmental impact assessment) to be integrated into the project to be evaluated. 2. Processing of the project with EIA (environmental impact assessment) + EIS (environmental impact statement) + Project authorisation. **The strange thing is the three previous steps: 1. Moment 0: Previous actions:** * The first phase is the preliminary actions phase, which did not exist before. The developer knows that they need an environmental assessment. * The promoter decides whether to request the substantive body that the environmental body prepare the scoping document (DAEIA) of the EIA (must present the initial project document) its preparation lasts 3 months. It is optional to ask the final body that asks the middle body for a scope document (it must present the initial project doc (start arrow) * If the administration admits the possibility of the project being carried out, a transmission of public information and queries * (it is mandatory) is opened, administrations are consulted. * You need to determine if you need the scoping document to do the assessment. This document has a specific content art. 35.1 LEA + Annex VI * Finally, the promoter is given the scoping document of the AI Study (environmental body). * **Participation**: The substantive body (environmental body if the project is subject to prior communication or responsible declaration, private?) opens a public information process, consultations with Public Administrations and interested persons: project and initial EIA. * **The following documents are made generally available:** * Public Information of the EIA (minimum 20 days): Any person, entity or institution can consult the project and submit observations or allegations. * Consultations with Affected Public Administrations (environment, health, culture...). They provide their technical and regulatory point of view. **2. Opening of the evaluation procedure** * **Environmental impact study**: public information and consultations and technical analysis (art. 35). The beginning of the procedure is an environmental impact study carried out by the developer, the developer brings all the documentation, it is still on the roof of the substantive that transmits it to the environmental. * **The environmental body begins the evaluation**: if it is sufficient to develop the activity (evaluation) if it is insufficient or poorly done, there will be a period of three months to obtain or that the environmental body has the technical document to assess the project. * **1.- Request for initiation**: It is submitted by the promoter to the competent substantive body (regional or state) to initiate the environmental impact assessment. (Document: The application must be accompanied by the complete EIA(Environmental impact statement) file (which includes: technical project document, EIA, allegations and reports received in public information and consultation procedures) and the documentation required by sectoral legislation. **From this moment: period of 4 months extendable for 2 more for justified reasons.**- * **other public information procedures are opened**: consultation with Administrations and affected persons. * **2.- Technical and Environmental Analysis**: environmental body. It takes into account the EIA, queries and allegations. It assesses the risks that are generated (matter of territorial planning) and see how the project responds to these risks, provides alternatives to reduce or eliminate them (assess how they are covered) and from there... * **3.- Resolution**: Environmental Impact Statement (document where the environmental body states that the project is suitable or not), if it is favorable, the arrow can continue until approval. Follow-up measures are also proposed (so that the visual impact is less. From there there is a follow-up even once approved, by the promoter and the environmental body that continue to see) * **4.- Project Authorization**: If the EIS is favorable, the promoter can request administrative authorization to start the project, which must integrate the conditions imposed in the EIS. * **5.- Environmental Monitoring and Surveillance**: Monitoring plan to ensure that the preventive, corrective and compensatory measures established in the EIS are being complied with.→ Monitoring during the construction, operation, and even after the cessation of activity. * **3. Final: ENVIRONMENTAL IMPACT STATEMENT**: Administrative act by which the administration (environmental body) decides whether this project should be carried out, recognizes whether the project is viable or not. The deadline for the administration to take the EIS is 4 months, extendable, 2 more for justified reasons. It is drafted after submission of the documentation by the substantive body (including environmental impact study, mandatory reports, objections in the public information process and the pertinent observations). * **The EIS is a mandatory and decisive report, which is binding**. If it is unfavourable, (a dispute resolution system has been established → Liam p.25) * **It has the nature of a mandatory and decisive report**. It is regulated in art. 41 LEA. * **Competent body**: Ministry of the Environment for projects that must be authorised by the AGE. * **The EIS can be**: * Favourable, if the project can be carried out with the proposed corrective and compensatory measures. * Unfavorable, if the negative impacts cannot be adequately mitigated. * In some cases, the EIS may establish additional conditions that the developer must comply with in order to minimize impacts. In the event of a flagrant discrepancy, the Council of Ministers resolves. (Sometimes it can be favorable (with defects) but conditions are added). **Expiration**: * After 4 years of its publication if problems have not begun to be executed, the environmental impact statement expires (things change, different relationship, incorporate other measures). **What happens if it is not viable?** * The Environmental Impact Statement (EIS) is considered a relevant step in the procedure that decides the project but has an instrumental or medial nature. Therefore, it cannot be challenged directly in court. That statement is not a decisive report: even if it is unfavorable, some public and political interests can exclude an evaluation and pass. **What can be challenged?** * The final decision of the project is precisely based on: * Defects in the environmental assessment procedure * Absence or insufficiency of environmental assessment procedure *(If the promoter receives an unfavourable declaration, as it is an integral part of the procedure the evaluation cannot be excluded and cannot be continued if there is no final decision to go through the final decision of the project ?) ### 2. SIMPLIFIED PROCEDURE * The simplified procedure is faster (smaller): maximum period of 3 months. **Purpose:** * LEA Annex II Projects, Projects that may significantly affect areas protected by the Natura 2000 network, Modification of Annexes I or II projects that do not require Ordinary EA and that may have a negative impact on the environment, Fractional projects that, due to the accumulation of magnitudes or dimensions, may reach the thresholds of Annex II, Annex I projects of no more than 2 years whose sole or main purpose is to develop or test new methods or products. **Designed for projects that:** * Although not expected to have a significant environmental impact, require minimal assessment to ensure that they do not result in serious harm to the environment. **Procedure**: 1. **Initiation**: request for the initiation of the procedure by the promoter, **who submits the project and an environmental document (descriptive report of the project) to the environmental body**. 2. **Environmental Consultations**: The environmental body carries out brief consultations with **other administrations and competent entities**. 3. **Resolution**: The environmental body prepares an Environmental Impact Report, in which, based on the consultations, it is decided whether the project should be submitted to a complete assessment (ordinary EIA) or if it is not necessary to continue with the environmental assessment procedure and it can be carried out. 4. **Follow-up of the report and sanctioning regime (environmental impact report)**. ## 4.4. COMPETENCE ASPECTS In Spain, the competence to carry out an Environmental Impact Assessment is distributed among different administrations depending on the nature and scope of the project: * **AGE**: competent over projects that, by their nature, exceed the limits of an autonomous community or that have an impact on areas of exclusive competence of the State. When it is infrastructure and goes beyond the regional scope: the substantive competence of the project at the end of the arrow is the ministry. E.g.: strategic infrastructures (national roads, ports, airports, etc.) or installations that affect national defence. * **The Autonomous Administrations**: competence over projects whose environmental impact is limited to their territory. These powers are regulated in the Statutes of Autonomy and in the regional regulations on environmental assessment. → https://www.boe.es/buscar/doc.php?id=BOE-A-1989-8162 Law 2/1989, of 3 March, on Valencian Environmental Impact (annex) * **Local Administrations**: competence in the limited EIA. The functions of the environmental body correspond to the regional or local administration determined by the regional regulations The City Councils intervene in the phase of granting urban planning licenses and can participate in the preparation of sectoral reports (but more so the regional ones) ## 5- STRATEGIC EVALUATION OF PLANS AND PROGRAMS * The strategic assessment is very recent, and it looks a lot like the EIA. The law tells us that the definition of Plans and programmes (art. 5.2.6 Law 21/2013) can be strategies, guidelines and proposals made to meet social needs, and that are not directly executable. * **Purpose**: To ensure that plans and programs are developed in a sustainable manner, considering environmental impacts from the early stages of formulation. A plan can be an ideological plan, a technical plan... * **SEA**: strategic environmental assessment. ### A- THE SCOPE OF APPLICATION * Along with the evaluation of projects, plans and programs can be evaluated: review of the public administration (on water, urban planning), plans part of the administration. Planning allows the market to be oriented to some areas. * **On plans and programmes that may have significant effects on the environment**: (territorial, urban, sectoral planning, waste management, water, energy, transport, etc.). Strategic evaluation does not apply to private plans, only to public plans. The requirements are: * **A subjective requirement**: the author of the plan must be a public administration; * **An objective requirement**: the plan must have an environmental impact. **European law is aware of planning and incorporated a series of directives to plan for this evaluation.** **Which in Spain resulted in the law of 2006 (9/2006).** <div align="center"> <img src="" alt="Flow chart showing the connection between European Law, Spanish law and the process for environmental assessment."> </div> * **European Parliament and of the Council on the evaluation of certain plans and programs in the middle atmosphere** ---> **April, on the evaluation of the effects of certainplans and programs in the middle atmosphere** ---> **Law 21/2013, of 9 December, of environmental assessment** **Competent bodies** * There is a promoting body and an environmental body. It is always done by the same Administration (if the promoter is a ministry, the environmental body is another ministry), except for local entities (as established in the regional regulations): if the promoter is a city council, then the environmental body is the Ministry of the CA (comunidad autonoma). * **The substantive body has to approve the plan.**. * **Promoter**: public or private entity that has the interest in the plan being carried out (environmental: the one who is going to assess the impact that the plan has on the environment (the one who approves the plan can sometimes be the promoter?) ### 5.2. Procedure * **Plan**: public management of resources or management of activities. * **Projects**: particular action, specific approval. **Identify if we are facing a project or a plan and the procedure changes:** * **What is needed and how I organize it?** * **Contract:** project (or execution of a previous plan). * **Phone numbers:** planning, if someone dies the number is assigned to someone else; Planning of how a public resource is going to be managed, something that has an impact on the environment... * **Strategic Environmental Assessment = Plans and Programs** **2 procedural tracks**: * **Ordinary Route**: For plans that may generate significant environmental effects (art. 6.1) LEA. Ends with the **Strategic Environmental Declaration Arts. 17-28 LEA**. These are notably those that establish the framework for the development of projects subject to EIA, or in relation to the Natura 2000 Network * **Simplified route**: Applies to plans or programs of smaller scope or that are not expected to have a significant impact (art. 6.2) LEA, but that need a rapid and less detailed evaluation. It ends with the **Strategic Environmental Report. Arts. 29-32 LEA.** They are all those that are minor modifications of the previous plans, those that are projected on the municipal uses of areas of reduced extension, etc. **Exclusions from the evaluation :(art. 8 LEA)** * Plans and programmes that have as their sole purpose: national defence and civil protection in cases of emergency. * Financial or budgetary plans or programmes. **There may be changes between ordinary/simplified etc** ### 1. Ordinary procedure. * The standard procedure is required for plans and programs affected by one of the following points (1 and 2 cumulative): 1. Plans or programs that are prepared or approved by a Public Administration 2. That its approval is required by legal or regulatory provision, agreement of the Council of Ministers or the Governing Council of the Autonomous Community: -Plans or programmes set out the framework for future projects whose authorisation Could require an Environmental Impact Assessment. * They affect the Natura 2000 Network in accordance with Law 42/2007, of 13 December, on Natural Heritage and Biodiversity * Subject to simplified SEA if decided by the environmental body in a strategic environmental report (Annex V Criteria: Objective significance of the plan/Areas requiring greater control) * Subject to simplified SEA if requested by the developer and so decided by the environmental body <div align="center"> <img src="" alt="Flow chart showing the phases of the strategic environmental assessment process."> </div> * **Environmental body**: in collaboration with the promoting body, it ensures the integration of environmental aspects in the preparation of plans or programmes. * **Promoting body**: initiates the procedure for the preparation and adoption of a plan or program and must integrate environmental aspects into its content through an EA process **Procedure**: 1. **Request for initiation**: - The first phase is the request for the initiation of the procedure by the promoter. - We start with a draft plan or program and an initial strategic document (Evaluator) - Then there are prior consultations of the public administrations and the affected people, carried out by the environmental body Period 45 days. -With the result, the environmental body sends the promoter and substantive body a scoping document for the strategic environmental study (SEA scoping document). 2. **Preparation of strategic environmental study (*previous sustainability report)** - Based on the Scoping Document, the promoter prepares the strategic environmental study and an initial version of the plan or programme of which the SEA is part. **NOTE**: a map of natural risks (fires, floods, landslides, etc.) must be included in planning instruments for urban development actions, and land that presents natural risks is considered non-developable. * The environmental body sends an initial version of the plan or programme to the substantive body + Non-technical summary of the study. * **Public information and consultation procedure: 45 days.** * **Final proposal of the plan or program and technical analysis of the file (Art. 23 LEA)** - The promoting body drafts the final proposal of the plan or program. -The substantive body sends all the documentation to the environmental body - Final proposal. - Strategic Environmental Study. -Results of public information and consultations. -Summary document of integration of environmental aspects in the program. * **Initiation of the project procedure (the substantive body (the one that approves) sends it to the environmental body (submits)** * **6.- Strategic Environmental Statement**: It is formulated by the environmental body within 4 months of receipt of the file, extendable for 2 more months, in a justified manner **7.- Follow-up/Monitoring (art. 51 LEA):** promotor submits a follow-up report on compliance with the DAE that the substantive body must verify. Follow-up to ensure that the measures are complied with, that the plan is complied with as it was evaluated. ### 2. Simplified Procedure: 1. **Request for initiation and consultations with the Public Administrations (public administrations) and affected persons**: Request from the promoting body (draft strategic environmental plan/document). Then, there are consultations with Administrations and interested parties: Participation, The declaration of the environmental pact can be modified if circumstances change or if some issues could not be assessed before, they can be incorporated later into the SEA. 2. **Formulation of the strategic environmental report by the environmental body**: 4 months from the receipt of the request for initiation. - **Content**: If the plan or programme must be submitted to ordinary SEA: preparation of the scope document and ordinary processing - If the plan or program does not have significant effects, you have 4 months for the approval of the plan or program. 3. **Official publication of the strategic environmental report (BOE and website).** On the publication of the resolution approving the plan or programme: reference to the BOE of the IAE 4. **Follow-up (art. 51 LEA):** Terms analogous to the ordinary procedure. ### 3. Strategic Environmental Statement and Effects (SAD) Document prepared by the promoter that contains the necessary information to assess the possible significant effects of the project on the environment and allows appropriate decisions to be taken to prevent and minimise these effects. **Arts. 25 to 28 LEA** **Content** - Statement of the facts of the proceedings - Outcome of public information and consultations - Determinations, measures, or conditions to be incorporated into the plan or program - The DAE is incorporated into the plan or programme, approved by the substantive body and published in the corresponding BOE or Official Gazette. Term 15 business days. -Nature and effects: - It is a mandatory and decisive report or opinion: - It cannot be appealed directly without prejudice to the appeals against the plan or programme or the administrative act approving it. - It can be modified if there are circumstances that determine the incorrectness of the DAE due to subsequent events or due to previous events that could not be assessed. ==End of OCR for page 13==