Guidance on the Practical Application of the Espoo Convention |
Practical solutions in applying the Espoo Convention
Responsibilities
Management
The procedure
Initiating the process
The notification
Transmitting information
Screening the likelihood of significant adverse transboundary impacts by the affected Party
Preparation of the EIA documentation
Consultations
Final decision
Responsibilities
The competent authority
is the authority that is designated by the Party to
carry out the practical application of the Convention
nationally and may also have the decision-making powers
regarding a proposed
activity. The competent authority may be, depending
on the nature of the issue, a local, regional, state
or national authority. The Point of Contact is the
authority, which is designated by the Party to be
the official contact towards other Parties
and towards the Secretariat of the Convention. An
updated list of the Points of Contact is available
from the Secretariat or from the Internet.
Although the practical application is the responsibility of
the competent authority, some tasks are clearly part
of the mandate of the Point of Contact. The responsibilities
of the two should be made clear and the information
flow should be ensured between these two authorities
in clear national rules of procedure or separately
in each case. An agreement can help in defining the
roles by designating contact points and their functions
(e.g. mailbox, executive function, initiating function,
use of a joint body). An agreement should also take
note of other stakeholders such as the developer,
International Financing Institutions (IFI) and Non-Governmental
Organisations (NGO).
Management
The
Convention requires Parties to take all appropriate
and effective measures to prevent, reduce and control
significant adverse environmental impacts
from proposed activities. The
environmental impact assessment process is
carried out to achieve this. Successful management
of the process and the related formal procedures depend
on smooth practical application of the provisions
of the Convention and on a reciprocal understanding
of differences and similarities in the assessment
procedures across the border.
Lack
of understanding of the differences in EIA legislation
in the Parties involved makes the application of the
Convention often cumbersome or, in the worst case,
unsuccessful as there are many elements in the Convention
that require close cooperation between the Parties.
Open discussions at an early stage reduce misunderstandings
and help in avoiding friction between the Parties.
As a last resort the Convention includes a formal
legal dispute resolution process.
Negotiations
can be organised before the actual start of transboundary
EIAs on an ad hoc basis or by forming a permanent
working group that discusses the practical matters
of ongoing and upcoming applications of the Convention.
The following issues could be discussed:
-
institutional arrangements;
- time schedules;
- translations;
- cost sharing and other financial matters.
At
a national level, permanent rules of procedure that
specify as clearly as possible the different tasks
and the responsibilities of all actors involved have
been found useful. If no clear plans for the implementation
of the Convention have been set in national primary
or secondary legislation, the practical application
of the Convention can be perceived to be complicated.
This is due to the fact that it includes many steps
and stakeholders.
Rules
of procedure provide a basis for the process in each
individual case. The level of detail and the degree
of formalism in the rules of procedure may vary depending
on the administrative culture. When a new application
procedure is forthcoming, a plan for carrying out
the application needs to be tailored according to
the rules of procedure but taking into account the
special circumstances of the case in question. It
is advisable to go through all the stages of the application
procedure and examine their practical implementation
for each case in advance (see chapter The
procedure).
Parties
with one or several agreements with varying combination
of Parties build the national rules of procedure in
consistency with the contents of the different agreements.
The procedure
The
procedure has distinct stages, each of which needs
to be carried out in a way that serves the case in
question, fits into the procedures and the culture
of the Parties concerned and fulfils the requirements
of the Convention. These stages include notifying
the affected Parties, organising participation and
information flow and providing EIA documentation and
final results. In case the
affected party decides not to participate in
applying the Convention in the notified case, the
process is stopped and it is up to the Party
of origin to decide whether it carries out an
EIA or not. An overall plan is needed for the entire
procedure. Each step requires careful preparation
before being carried out. National legislation plays
an important role when applying the Convention. On
the other hand, it may lead to rearrangement of the
phases, e.g. the notification and transmission of
EIA documentation.
Initiating the process
According
to the Convention, the practical application starts
with a notification. In practice, there are tasks
to be carried out before sending out the notification.
This chapter gives an overview of the tasks involved
in the initiation of the process and suggestions for
how they can be carried out.
The
legal or natural person who raises the question of
applying the Convention in a Party may vary from case
to case. It is important
that the Convention is well known in those Parties
that are Parties to the Convention. Authorities within
different sectors and at all levels of administration
in particular, but also NGOs, IFIs, developers and
the public, should receive information on the Convention
and its contents through various means such as environmental
committees. In this way one can ensure that knowledge
of potential cases reaches the competent authorities
and Points of Contact, which can officially initiate
the procedure.
Screening
In the Convention Appendix I includes a list of activities
that automatically require an application of the Convention
if significant impacts
may extend across the border. The first task is
thus to determine whether an activity may have significant
impacts across borders. This exercise is often called
screening. Some Parties may find that the list of
activities in the Convention does not cover all relevant
activities. An agreement could thus include further
activities, which always require transboundary EIAs.
Appendix III contains general criteria to assist in
the determination of the environmental significance
of activities not listed in Appendix I.
Furthermore,
there may be other types of activities that in the
special circumstances of the border area are likely
to cause significant transboundary
impacts. Such activities
can be locally identified in advance to ensure smooth
initiation of transboundary assessments. Special issues
may also arise in the connection with the assessment
of policies, plans and programmes and in issues related
to long range transport of pollutants. The concerned
Parties should discuss the need to apply the Convention
also in these cases (Art.
2.5).
In
most cases the Convention will be applied between neighbouring
Parties. However
it should be noted that the Convention does not only
apply to transboundary impacts between neighbouring
Parties but also to long range transboundary impacts.
Activities that can make long-range impacts in transboundary
context include activities with air pollutants or
water pollutants, activities potentially affecting
migrating species and activities with linkages to
climate change.
The
legislation varies between Parties with respect
to the criteria for initiating environmental assessments
at the national level. This may confuse decision
making concerning the applicability of the Convention.
International, national and regional environmental
programmes may provide useful criteria to be used
as a basis for finding thresholds and other criteria.
In the ECE
Environmental Series Nr. 6., the chapter called
"Specific methodological issues of Environmental
Impact Assessment in a transboundary Context" contains
information on the determination of "significance".
An agreement can define criteria such as large and
major and thus provide mutually agreed threshold
values.
It
may be advisable to notify neighbouring Parties also
of activities that appear to have a low likelihood
of significant transboundary impacts. It is better
to inform potentially affected Parties and let them
decide on their participation instead of taking the
risk of ending up in an embarrassing situation in
which other Parties demand information on activities
that have already progressed past the EIA phase. There
are several cases where the affected Party has wished
only to be kept informed.
In
cases where an affected Party feels that it is likely
that the Convention should be applied although it
has not received a notification, theaffected
Party may initiate discussions on the issue of
significance with the Party of origin (Art.3.7).
Sometimes, the public in the affected Party raises
the issue of negative impacts from another Party´s
activity and demands the Parties to start exchanging
information according to the Convention (3.7). The
public can submit these requests to the competent
authorities in the affected Party, either directly,
or through authorities at local, regional or national
level. Clear rules on screening will help in dealing
with this kind of situations and in resolving any
disputes that may arise.
Institutional arrangements
The
Convention specifies the formal steps and Points of
Contact, but has no provisions on the informal contacts
and negotiations that occur in many border areas between
authorities at different levels. Formal contacts and
negotiations must be carried out to meet the legal
requirements of the Convention. It is nevertheless
worth contacting the Point of Contact well in advance
to give the Party time to get organised. It may also
be useful to designate a "contact point" at the regional
or even local level.
It
is important to trigger informal negotiations throughout
the process and especially at the start. Such negotiations
should be conducted between:
- points of Contact, developer and responsible authorities
within the Party of origin
- responsible authorities in border regions within and between Parties
- the developer, authorities and IFIs
- the developer, authorities and NGOs
The
IFIs play a major role in EIAs in many Parties of
the Convention. The IFIs are not, however, Parties
of the Convention and are thus not able to apply formally
the Convention although practically all IFIs have
internal rules for EIAs. It is therefore advisable
to clarify the relationships between the IFI and the
actual Parties to the Convention. In this way the
internal rules of the IFI for EIAs can be matched
with the legal requirements of the Parties as well
as the Convention.
Financial aspects
The application of the Convention has several financial
implications. The "polluter pays" principle has been
interpreted to mean that e.g. translation costs of
the various EIA documents should be covered by the
Party of origin, respectively by the developer.
Furthermore there are some procedural steps with clear
financial implications (publication in the
affected Party, presentation of the documentation
for public inspection, public hearings etc.).
It is necessary to go through the financial arrangements
in an early phase. When all actors are informed early
of their future responsibilities they are able to
reserve finances and to link the matter with other
processes. Agreements may specify financial aspects
such as:
- costs of special transboundary studies;
- costs of translations;
- costs of public hearings and other participatory
procedures in the affected Party.
The costs can be covered by
- the developer,
- the affected Party,
- the Party of origin,
- an IFI,
or by a combination of two or more of the above mentioned
bodies. In some cases e.g. NGOs may provide contributions
in kind by translating additional documentation of
specific interest to the organisation, for example
wildlife inventories.
Time schedule
It is in the interest of everyone involved in a transboundary
EIA that time schedules are specified as clearly as
possible. The authorities involved can prevent or
minimize possible delays by planning the time schedule
at an early stage. Opportunities to combine steps
of the EIA procedure can be explored to increase efficiency.
For example, the provision of extra information after
a confirmation of the participation by the affected
Party may be unnecessary if the notification already
contains the complete information.
The
timing of the application procedure process should
be set at the initiation phase so that the entire
process is given a clear structure with a start and
an end. Then all Parties are aware of the time sequencing
involved. The timing should be discussed with everyone
concerned in an early phase. Parties may have strict
rules on time schedules for public
participation and these may cause difficulties
in linking the transboundary EIA to the national EIA.
IFIs may also have their own rules concerning timing.
By identifying the different requirements at an early
stage it may be possible to develop a smooth process
that avoids delays and/or rushes that may be intimidating
for those participating in the transboundary EIA.
Clear
rules on the timing are as important as the actual
allocation of time for each step.
Timing is important especially:
- In sending the formal notification;
- In responding to the notification;
- In public consultation and participation;
- In informing of the final decision.
The notification (Art.
2.4 and 3.1-3.2)
Notification
is the formal and mandatory start of the application
procedure. Informal contacts may have preceded the
notification. The notification may be passed between
the official Points of Contacts or by other authorities,
which are responsible for this step according to national
legislation or through agreements. To avoid misunderstandings,
the notification or a copy of it should be sent to
the Point of Contact, which will then pass the notification
to the actually responsible authority. The prenotification
(informal) contacts are highly recommendable to give
both Parties time to get prepared for the coming procedure.
The importance of the official notification lies in
the formality it gives to the procedure. The format
for notification can be found in the
Convention´s website.
Timing the notification
The notification must be sent the latest when the public
in the Party of origin
is being informed of the national-EIA process. It
is recommendable to send the notification as early
as possible, favourably before the scoping, if such
a phase is being carried out (see sub-section on Time
schedule above). All Parties that have been identified
to be potentially affected should receive a notification.
In the case of joint transboundary EIAs. i.e. when
two Parties to the Convention are simultaneously affected
Parties and Parties of origin e.g. in connection with
transboundary transport routes, reciprocal formal
notifications help to clarify the roles of both Parties.
In agreements, the moment of notification should be specified.
The precise time of the notification depends on whether
the EIA procedure of the Party of origin includes
a) a formal stage with mandatory public
participation for the identification of issues
to be studied, b) a formal identification stage without
participation or c) no such formal stage at all. The
formal stage for the identification of issues to be
examined in the EIA, often called scoping, provides
a suitable moment for an early notification.
Contents of notification (Art.3.2)
The contents of the notification is specified in Article
3.2. In addition, a format of notification has been
provided by the UN/ECE working group (Report
of the First Meeting of the Parties). It is recommendable
to add "other" information (Art.
3.5) already to the notification. This speeds
up the process since it removes one round of information
exchange. The additional information on the activity
and its likely impacts
also helps the affected Party to consider whether
it wants to be part of the EIA or not.
Responding to the notification and confirmation of participation
(Art.
3.3)
Parties should always respond to notifications within the
time specified by the Party of origin. A negative
response to the Party of origin is also important.
The Party of origin can then proceed in planning the
national EIA process. While responding to the notification
and confirmation of participation, the time of carrying
out environmental
impact assessment specified in national legislation
of the Parties should be taken into account.
Transmitting information (Art.
3.4-3.7)
If a potentially affected Party decides not to participate
and indicates this in its reply to the notification,
the application procedure ends. On the other hand,
if the affected Party wants either to be informed
or to participate, the application procedure continues
with further exchange of information.
If other information has not been provided to the affected
Party already in the notification, it must be sent
as soon as the affected Party has expressed its interest
in participating in the process. The exchange of information
then continues between the Parties throughout the
process. The time limits given by the responsible
body should be followed. The time limits should preferably
be agreed upon in advance so that the time limits
are both legally acceptable and realistic (see chapter
Time schedule).
Selection of material
The documentation has to include all relevant items mentioned
in Appendix II of the Convention. The identification
of alternatives is usually felt to be the most difficult
part in preparing the documentation but also among
the most important ones. The alternatives set the
scene for the entire assessment and thus they should
be identified at an early stage.
Submitters and receivers of information
The Convention provides (Art.
3.8 and 4.2)
that both concerned
Parties shall ensure that the public of the
affected Party is informed and be provided
with possibilities of making comments. Comments of
the public to the EIA documentation may be sent by
the public either to the
competent authority or, where appropriate,
through the Party of
origin. The Convention does not contain more specific
information on the authority to be addressed.
The Parties should know from the very beginning, at the
latest at the time of notification, who the concerned
authorities are that exchange information. The roles
may vary depending on the type of information exchange:
- sending documents (e.g. notification),
- providing information to the public, and
- sending comments of the public.
It should be clear how the information from the public
is transferred to the Party of Origin. It should be
clarified who is responsible for informing the public
of the affected Party and the way that comments of
the public shall be transferred.
Documents like the notification and the EIA documentation will
always be passed between the authorities of the respective
Parties. For the provision of information to the public
and the transmission of comments of the public there
are various options:
· the responsibility is with an authority of the affected
Party (Point of Contact or other authority); it is
possible that the public of the affected Party sends
comments either directly to the competent authority
of the Party of origin or through the Point of Contact
or competent authority in the affected Party;
· the responsibility for informing the public
of the affected Party is with the authority in the
Party of origin (competent authority) or the proponent
(developer); the public of the affected Party sends
comments directly to the competent authority of the
Party of origin; or even directly to the proponent
and sends copies of the comments to the
competent authority of the affected Party;
· there is a shared responsibility between authorities in both Parties.
The advantage of the first option is that the authority
of the affected Party is usually well informed of
the ways and means of publishing and making available
the EIA documents for public inspection. A drawback,
depending on the specific arrangements, could be the
timing, especially when the comments of the public
are first sent to the authority in the affected Party.
The advantage of the second option is that the information
can be provided directly to the public and that the
comments can be sent directly to the Party of origin.
This will enhance the timing of the process. A disadvantage
may be that the authority of the Party of origin is
not familiar with the local ways of publishing and
practice regarding making available documents for
public inspection. The advantages of both alternatives
could be combined by the third option: sharing the
responsibility between the authorities or both Parties
but that needs a further specification and division
of tasks.
Agreements give a forum for defining the roles and responsibilities in information flow.
Public participation (Art. 2.2,
2.6, 3.8
and 4.2)
The Convention requires that the public of the affected
Party is given the opportunity to participate in the
environmental impact assessment process. Participation
is specified in the Convention as a right to be informed
and a right to express views. Thus the practical application
of the Convention should include these aspects. One
of the main challenges of public participation arises
from the fact that the legislation and practice concerning
public participation vary between Parties. Therefore,
participation methods need to be tailored to fit the
practices of the affected Party.
Apart from the broad public, bodies worth consulting include
different authorities, specialists, IFIs and NGOs
on both sides of the border. To pass information in
correct form, in relevant scope and in the most appropriate
language, the stakeholders and the target groups need
to be clearly defined. Many stakeholders may hold
information and may positively take part in gathering
information. The competent
authority should, however, ensure that the information
is non-biased and of adequate quality (see also chapter
Financial aspects).
Public participation is considered very important in the
application of the Convention and thus there is guidance
specifically meant for planning the participatory
process. This guidance is being developed and will
be available on the
website of the Convention. Detailed arrangements
on informing the public on the involvement in the
transboundary process may be included in an agreement.
An agreement could make clear what the roles and responsibilities
are in informing the public and in transferring the
comments of the public to the
competent authority of the Party of origin.
The UN Convention on access to information, public participation
and access to justice in environmental matters (the
Aarhus Convention, 1998) sets the basic requirements
on public participation.
Translation of documents
A special feature of the practical application of the
Convention is the multilinguality of the
concerned Parties. Studies have shown that
even minor difficulties in understanding the language
may retard participation of the public and the authorities.
This is the case with closely related languages such
as the Scandinavian, German-based and Slavic languages.
Although the Convention does not specify issues of language,
it is important that information is provided in a
language understood by those participating. The Parties
are recommended to plan and decide upon responsibilities
concerning translations in the initiation phase. The
target group needs to be well defined before planning
the translations is taking place.
It is necessary to decide:
- Which parts of the documents are planned to be submitted
to:
- the affected Party,
- the regional/local level in the affected Party,
- the public in the affected Party;
- What language requirements are set by the chosen target groups;
- Which documents will be translated into which language;
- In which language the responses can be given;
- Who is responsible for the translations and the quality both in given and received information;
- Who covers the costs of translations both in given and received information.
Translating into English or Russian instead of the language of the affected Party is sometimes done when there is
an IFI involved or when the assessment deals with more than two Parties. It is important that at least
parts of the documents are translated to the language of the affected Party.
Needs for translations are determined according to the language
differences between the Parties. These matters can
be generally specified in an agreement between Parties:
which documents should be translated, who is responsible
for the translations, for their quality and for their
costs. Agreements can also set requirements on time
allocated to translations and the timing of translations.
In agreements Parties can also state who is responsible
for the interpretation at hearings.
Screening the likelihood of
significant adverse transboundary
impacts by the affected Party (Art.
3.7)
The Party of origin should have carried out the screening
of the potential adverse impacts
of the planned activity in the initiation phase. Even
if the Party of origin comes to the conclusion that
the Convention does not have to be applied, the affected
Party may have another view and thus initiate discussions
with the Party of origin. If no common view is reached,
any of the Parties may ask an inquiry commission in
accordance with the provisions of Appendix IV to give
advice. One way to avoid situations of this kind is
to open unofficial discussions with the affected Party
already in the initiation stage or to just notify
the affected Party.
Preparation of the EIA documentation
(Art.
4.1 and 4.2)
Once the developer has compiled all the material in the
environmental impact assessment nationally
and in the affected Parties, he or she produces a
documentation. When the assessment is based on an
application of the Convention, the documentation shall
cover, as a minimum, the items that are listed in
the Appendix II of the Convention.
The documentation has to be provided to the
affected Party. In practice the documentation
may be sent to the Point of Contact of the affected
Party or to another authority of the affected Party,
which is responsible for this step according to national
legislation or if both Parties so agreed in general
(e.g. in an agreement) or for the specific case. In
both cases the delivery may be carried out through
a joint body, where one exists and where this is appropriate.
The document shall be provided to the public for comments,
which are collected later. According to the Convention,
both Parties are jointly responsible for the distribution
and collection of comments. It is necessary to decide
which Party shall perform this task and which way.
The chapter on transmitting information (2.6.2) suggests
ways how to arrange the information flow. It is important
to decide these issues in the initiation phase or
at the latest immediately after the notification.
It is also highly important to provide time limits
for the submission of the documentation and especially
for the public to respond. The time limits should
be realistic both from the participants' and from
the authorities' point of view.
Consultations
(Art.
5)
After
completing the documentation, the Party of origin
has to initiate without delay consultations with the
affected Party. Matters to be decided upon when planning
the consultation process include
-
which authorities and bodies can and should participate
in consultations
- how and when consultations are carried out
- how the Parties are informed of the consultations outcomes and their use
Due to the sensitivity of different cultures to issues
such as participation and time-frames, agreements
could include provisions on the consultations.
Timing
A reasonable time-frame for the duration of the consultations
has to be set (see also chapter Time
schedule). One way is to agree on a case-by-case
basis on the time-frame within which the consultations
has to be finished. The consultations should always
be conducted before the final decision is made so
that their outcome can affect the decisions and the
conditions it may specify for the activity.
Issues
Article
5 suggests issues to be discussed in consultations,
e.g. possible alternatives to the
proposed activity, other forms of possible
mutual assistance in reducing any significant adverse
transboundary impact of the proposed activity and
any other appropriate matters relating to the proposed
activity. Another important item worth to negotiate
is monitoring during the construction phase.
It seems likely that Parties propose in consultations
additional items (e.g. specific mitigation measures,
monitoring, post-project analysis).
Roles of different stakeholders in consultations
The
Convention does not unambigously specify who should
participate in consultations. Official consultations
should, however, take place at sufficiently high level
because they represent negotiations between national
states. The Parties may wish to include other bodies
in the consultations. It may be essential to meet
more often and to start with an exchange of information
at an expert level (e.g. experts of sector authorities).
In order to ensure that consultations will focus on
the most important items, the presence of experts
has been found useful. Consultations may also be done
in writing (see also chapter Institutional
arrangements.).
Means to be used in consultations
In consultations it is useful to use many different means
in order to ensure efficient information flow in different
consultation phases, taking into account cultural
differences in communication and negotiation. The
different forms include:
- A joint body;
- Meetings of experts;
- Electronic meetings/exchange of emails or official
letters;
- Meetings of medium and high level officials (see
also chapter Roles of different stakeholders
in consultations)
Final decision (Art.
6.1)
The
Party of origin has to provide the final decision
with the reasons and considerations to the affected
Party. These should also reflect the impact on the
affected Party.
Trust
may be raised by clearly specifying how comments of
the authorities and the public of the affected Party
and the outcome of the consultations will be dealt
with. However, this does not mean that the Party of
origin has to strictly follow the proposals or requests
of the affected Party in detail, but it will have
to take them into due account and to balance them
against other items according to existing legislation.
The basic premise is that comments are treated equally,
irrespective of national boundaries. If it is unclear
how the comments of the authorities and the public
of the affected Party are considered, future motivation
to participate is affected negatively and distrust
may arise. If individuals in the affected Party have
the right to appeal against the decision in the Party
of origin, the information about such a right of appeal
should be given in the decision or in an annex to
it (see also chapter Public participation).
Consultations
on the basis of additional information after the decision
In
case additional information relevant to the decision
is obtained after the final decision but before the
activity is started, the Party of origin should deliver
this information to the
concerned Parties. If one of them so requires,
additional negotiations have to be carried out on
the revision needs of the decision e.g. monitoring,
additional conditions or mitigation measures etc..
Responsibilities
The
Point of Contact or other authorities, responsible
according to the legislation of the Party of origin
or to an agreement, may send the final decision to
the affected Party. For the way by which the authorities
and the public of the affected Party are informed
and provided with the final decision see sub-section
on Submitters and receivers
of information.
In an agreement roles in dissemination of the decision
could be dealt with in detail.