Initiating the process
Screening the likelihood of significant adverse transboundary impacts by the affected Party
Preparation of the EIA documentation
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).
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;
- 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 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.
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.
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.
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.
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.
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 UNECE 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.
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.
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.
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.
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.
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).
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)
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..
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.