Convention on Environmental Impact Assessment (EIA) in a Transboundary Context

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Guidance on Public Participation

Decision III/8

GUIDANCE ON PUBLIC PARTICIPATION IN ENVIRONMENTAL IMPACT ASSESSMENT IN A TRANSBOUNDARY CONTEXT

The Meeting,

Recalling its decision II/3 on guidance on public participation in environmental impact assessment in a transboundary context,

Convinced that public participation forms an essential part of transboundary environmental impact assessment,

Noting that for many Parties, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters will contribute significantly to the strengthening of public participation in their implementation of the Convention on Environmental Impact Assessment in a Transboundary Context,

1. Recognizes the need for guidance to assist competent authorities and the public in organizing effective public participation in environmental impact assessment in a transboundary context;

2. Adopts the Guidance on Public Participation in Environmental Impact Assessment in a Transboundary Context appended to this decision;

3. Invites Parties to provide information to the Working Group on Environmental Impact Assessment on the usefulness of the Guidance and any suggestions for its future development.

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Appendix

 GUIDANCE ON PUBLIC PARTICIPATION IN ENVIRONMENTAL IMPACT ASSESSMENT IN A TRANSBOUNDARY CONTEXT

This Guidance has been developed according to decision II/3 of the second meeting of the Parties to the Espoo Convention (Sofia, 26-27 February 2001) by the Russian Federation (the Agency for Environmental Assessments, "ECOTERRA", represented by Nikolay Grishin), with the support of the United Kingdom (Jim Burns and Roger Gebbels), the secretariat of the UNECE Espoo Convention (Wiek Schrage), the European Commission (David Aspinwall and Thisvi Ekmektzoglou) and members of the UNECE Task Force on public participation in environmental impact assessment in a transboundary context.

The case studies of public participation in a transboundary EIA were presented by the following experts, members of the Task Force: Tatyana Javanshir (Azerbaijan), Jacquelina Metodieva and Katya Peicheva (Bulgaria); Nenad Mikulic (Croatia); Veronika Versh (Estonia); Leena Ivalo and Ulla-Riitta Soveri (Finland); Georges Guignabel (France); Gia Zhorzholiani (Georgia); Fóris Edina (Hungary); Federica Rolle and Carmela Bilanzone (Italy); Gulfia Shabaeva and Tatyana Filkova (Kyrgyzstan); Daniela Pineta (Romania); Nikolay Grishin (coordinator of the Task Force) and Sergey Tveritinov (Russian Federation); Jim Burns and Roger Gebbels (United Kingdom).

The participants in the Moscow meeting of the Task Force were those members of the Task Force shown above in italics, together with Wiek Schrage (UNECE), Thisvi Ekmektzoglou (European Commission), Vladimir Markov and Zinaida Muzileva (Russia), Olga Razbash (Russian Regional Environmental Centre) and Olga Tokmakova (International Public Network for Environmental Impact Assessment).

Contents

1. Introduction
1.1. Role and benefits of public participation in environmental decision-making
1.2. The background, mandate and aim of the guidance
1.3. Case studies as the basis for the guidance

2. Public participation provisions of the Convention and their practical application
2.1. Establishment of national EIA procedure that permits public participation
2.2. Providing an opportunity for the public in an affected Party that is equivalent to that provided to the public in the Party of origin
2.3. Financing and translation
2.4. Notification of affected Party and public of Party of origin. Timing.
2.5. Joint responsibility of concerned Parties for participation of public of affected Party in a transboundary EIA
2.6. Distribution of the EIA documentation and submission of comments by the public of the affected Party
2.7. Final decision and results of public participation

3. Recommendations for increasing effectiveness of public participation in a transboundary EIA
3.1. Preliminary work with potential participants
3.2. Contacts with potential affected Parties: Bilateral and multilateral agreements; Joint bodies
3.3. Organizing points of contact for public
3.4. Role of the public

4. Final provisions
4.1. Implementation of the guidance
4.2. Review

Annexes
Annex 1. Provisions of the Convention dealing with public participation
Annex 2. Case studies

 

  1. INTRODUCTION [back to contents]

1.1 Role and benefits of public participation in environmental decision-making

Principle 10 of the Declaration of the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro (Brazil, 1992) emphasizes that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. Agenda 21 adopted by UNCED recognized the important role of public participation in environmental impact assessment (EIA) in achieving sustainable development (item 23.2 of Agenda 21). The World Summit on Sustainable Development in Johannesburg (South Africa, 2002) developed further these provisions. The principles promoted by these conferences are fully integrated into the provisions of the UNECE Convention on Environmental Impact Assessment in a Transboundary Context [1], which came into force in 1997 (hereinafter referred to as the Convention).

When governments enable the public to participate in decision-making, they help meet society's goal of sustainable and environmentally sound development. Public participation in environmental decision-making and, in particular, in EIA, may lead to some benefits in these processes. As a result of public participation, the process of decision-making, up to and including the final decision, becomes more transparent and legitimate. Public debate on proposed activities among all interested groups at an early stage of decision-making may prevent or mitigate conflicts and adverse environmental consequences of the decisions with transboundary impacts.

  For many UNECE member countries, the provisions of the Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters [2] provide the basic requirements on public participation in environmental matters. This is also the case in regard to the provisions on public participation in the development of plans and programmes under the Protocol on Strategic Environmental Assessment (SEA) adopted at the Kiev Ministerial Conference (2003) and signed by thirty-six States and European Community [3].

1.2 The background, mandate and aim of the guidance

The importance of public participation in a transboundary EIA and the need for guidance on it were recognized by the Parties to the Convention at their first two meetings (ECE/MP.EIA/2 , annex VI, item 4, and MP.EIA/2001/3  (French , Russian ), decision II/3).

At the first meeting of the Parties to the Convention (Oslo, 18-20 May 1998), it was agreed that the work-plan for the implementation of the Convention for 1998-2000 should include work to prepare guidance on public participation in transboundary EIA. A first draft version of guidance was developed by the Russian Federation, as lead country, with financial support from Italy.

The second meeting of the Parties of the Convention (Sofia, 26-27 February 2001) welcomed the work carried out by the Russian Federation in developing draft guidance. This meeting recommended the Parties to develop this guidance further, inter alia on the basis of case studies, and to put forward proposals for consideration at the third meeting of Parties. Further work was carried out by the Russian Federation as lead country with financial support from the United Kingdom and with the practical support of the Secretariat of the Convention. The Russian Federation nominated the Agency for Environmental Assessments “Ecoterra” to co-ordinate the practical work on this issue.

According to decision II/3 of the second meeting of the Parties, the aim of the guidance is to assist competent authorities and the public in organizing effective public participation in transboundary EIA.

1.3 Case studies as the basis for the guidance

As recommended by the second meeting of the Parties, case studies of public participation in transboundary EIA were used as the basis for the guidance. A special format for describing these case studies was developed by the Russian Federation with the assistance of the United Kingdom and further refined on the basis of comments received from the Parties. This format was sent by the Secretariat of the Convention to the focal points of the Convention with a request to present case studies.

 The following countries submitted case studies: Azerbaijan, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Hungary, Italy, Kyrgyzstan, Romania, Russian Federation and United Kingdom (Annex 2). The authors of these case studies were invited to participate in a meeting of experts of the UNECE Task Force on public participation in transboundary EIA in Moscow (25-27 September 2003) at which the case studies and draft guidance were discussed. Views expressed by delegates at this workshop have been taken into account in preparing this guidance as well as some ideas in the most relevant guidance on the practical application of the Convention [4].

The procedure for effective public participation in transboundary EIA contains a number of aspects, some of which are clearly described in the Convention. Other important aspects, for example, translation, timing, public comments or objections and financial aspects are left to the discretion of the Parties to define. This approach is consistent with other European law, e.g., the EU EIA Directive requires public consultation, but the detailed arrangements are for the EU Member States to lay down, consistently with the requirements of the Directive. This guidance provides recommendations based on practical implementation deriving from the case studies on the described aspects of public participation in transboundary EIA found in the Convention, as well as the ones left to the Parties' discretion.

  2. PUBLIC PARTICIPATION PROVISIONS OF THE CONVENTION AND THEIR PRACTICAL APPLICATION [back to contents]

The following important aspects of public participation in transboundary EIA are established by the Convention:

(a) establishment of a national EIA procedure regarding proposed activities listed in Appendix I to the Convention that permits public participation (Article 2.2) [5];

(b) the opportunity for equivalent public participation in the EIA procedure for both the public of the affected Party and the public of the Party of origin (Article 2.6);

(c) notification of the affected Party as early as possible and no later than when the Party of origin informs its own public about a proposed activity (Article 3.1); the notification shall contain the information provided in Article 3.2 of the Convention;

(d) joint responsibility of the concerned Parties for the participation of the public of the affected Party in the areas likely to be affected in a transboundary EIA, giving this public the possibilities to make comments or objections (Article 3.8); this responsibility applies when the competent authority of the affected Party informs the Party of origin that it wishes to take part in the transboundary EIA procedure;

(e) joint responsibility of the Parties concerned for the distribution of the EIA documentation and for submission of comments by the public of the affected Party in the areas likely to be affected (Article 4.2); and

(f) a requirement that, in the final decision on the proposed activity, the Parties ensure that due account is taken of the comments on or objections to the proposed activity from the public of the affected Party in the areas likely to be affected. These include comments on the EIA documentation (Article 6.1).

These provisions may seem obvious and simple. In national EIA procedures and legislation they may well be routine, standard practices. But in a transboundary context they may be ill defined or perhaps not addressed at all. So when transboundary EIA cases arise they may present unfamiliar issues for which Parties are not always prepared — issues such as time allowed for responses, different consultation bodies, knowing whom to contact and the most suitable methods of doing so, language and translation issues, legal systems, etc.

This guidance seeks to address some of these issues by reflecting on information and practice taken from case study material submitted by several countries with experience of transboundary EIA.

 2.1 Establishment of national EIA procedure that permits public participation

Article 2.2 of the Convention requires Parties to establish a national EIA procedure that permits public participation. The Convention does not specify the detail of such a procedure recognizing that it is a matter for the national authorities to determine. But the provisions need to reflect the obligations that arise from compliance with the Convention [6].

It is recommended that, as a minimum, national EIA procedures should include provisions that:

(a) the public is informed on any proposals relating to an activity with potential adverse environmental impacts in cases subject to an EIA procedure in order to obtain a permit for a given activity;

(b) the public in the areas likely to be affected is entitled to express comments and opinions on the proposed activity when all options are open before the final decision on this activity is made;

(c) reasonable time-frames are provided allowing sufficient time for each of the different stages of public participation in the EIA procedure;

(d) in making the final decision on the proposed activity, due account is taken of the results of the public participation in the EIA procedure.

 The essence of public consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. To achieve consultation, the consulting party must supply sufficient information to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled [7]. The consulted party in this context is not a “Party” in the Convention sense, but it could extend to competent and environmental authorities, non-governmental organizations (NGOs), local community groups, individuals, etc.

Many countries have some elements in their national EIA procedures, which permit public participation (see Box 1).

 

 2.2 Providing an opportunity for the public in an affected Party that is equivalent to that provided to the public in the Party of origin

According to the Convention, the affected Party must express an interest in participating in the EIA procedure of the Country of origin, following notification. If this interest is expressed, Article 2.6 of the Convention states that the Party of Origin shall provide opportunities for the public of the affected Party to participate in the EIA process that are equivalent to those provided to the public in the Party of origin.

The Convention does not define what is meant by “equivalent”. In a given situation it is for the Party of origin to decide what constitutes “equivalent”. At one level the method of public participation offered to the public in the affected Party might be identical to the provisions afforded to the public in the Party of origin; while at another level, different methods may be applied to reflect different circumstances and public needs. The Convention does not specify that the means of public participation in EIA procedure in the Party of origin and the affected Party should be identical — only that the opportunity provided to the public of the affected Party should be equivalent.

How have Parties approached this?

In general, the case studies (Annex 2) have shown practical examples of how Parties to the Convention have addressed these issues. Some countries have included in their national legislation provisions for participation of the public of an affected Party; others have made arrangements for this through other means, discussed in this section. The case studies have indicated that equivalent opportunities for public participation in EIA procedures in the Party of origin and in the affected Party were often realized in practice (see Box 2). In some case studies, the public of the Party of origin and the public of the affected Party were informed about the start of EIA procedure at the same time and more particularly from the very beginning of this procedure.

Another way in which an “equivalent opportunity” was given to the public in an affected Party was demonstrated by the case study of a proposal to construct the Finnish nuclear plant “Loviisa 3” (case study 5). Here the proponent prepared, translated and distributed information about the proposed project and a summary of the EIA programme and EIA report to representatives of the public of both the Party of origin and the affected Party. Information was made available in both the Finnish and Russian languages.

Equivalent opportunities in public participation have also been demonstrated through the case studies with respect to time limits for commenting on or objecting to a proposed activity. The case studies (see Box 3) showed that the Party of origin takes responsibility for establishing the time limits for comments by members of the public to be submitted on the proposed activity. In many of the case studies, identical time limits were established for the public of all the concerned Parties. In such cases, it is important to ensure that the available time is not reduced by the time taken for the transmission of documents, or other communications, between Parties. This is discussed further in section 2.4 below.

However, one should also bear in mind Article 3.8 of the Convention, which provides that the Party of origin together with the affected Party shall ensure that the public of the affected Party in the areas likely to be affected is informed of, and is given the opportunity to make comments or objections on, the proposed activity. The responsibility therefore lies on both concerned Parties. The authorities in the affected Party will wish to satisfy themselves that the Party of origin has allowed sufficient time so that effective consultation with the public in the affected Party can be undertaken.

 2.3 Financing and translation

The financial aspect is one of the most important aspects of the public participation procedure in transboundary EIA. Financial support for organizing this procedure may be necessary to cover the costs of:

(a) translating the EIA documentation into the language of the affected Party;

(b) translating the comments and recommendations of the public of the affected Party into the language of the Party of origin;

(c) disseminating EIA materials (including booklets, brochures) within the affected Party;

(d) payment for information distributed through, e.g. newspapers, radio, TV, e-mail or Internet;

(e) organizing public hearings and meetings of the public of the Parties concerned, etc.

Not all of the activities listed above will need to be carried out for every project. For example, even when countries do not share a common, official language, translation may not always be required if it is agreed that the public in an affected Party is sufficiently conversant with the language of the Party of origin to make it unnecessary. These are matters on which it is appropriate for the competent authorities in the Party of origin and the affected Party to reach agreement, either in the context of formal bilateral or multilateral agreements or on a case-by-case basis.

As is evident from the case studies (see Box 4) the costs of organizing public participation projects may vary very considerably from one case study to another, reflecting different economic circumstances and possibly different methods of undertaking the public participation. Moreover, in some cases the figures may not completely represent all of the costs associated with the public participation procedure. Some costs are difficult to quantify — for example additional administration time to deal with competent authorities in an affected Party or translating documents received in the language of an affected Party.

  

Box 4: Assessment of cost of public participation in a transboundary EIA in affected Party according to case studies (Annex 2)
Case study reference (in Annex 2)	Party of origin (PO) / affected Party (AP)	Cost of public participation in AP	Responsibility for meeting the cost of public participation
1	Azerbaijan / Georgia[9]	US$ 1,500,000[10]	Proponent (operator)
2	Bulgaria / Romania[9]	No information	Public hearings — their participants; translation — local authorities and joint bodies
3	Croatia / Hungary	€ 16,000	Competent authority of AP
4	Estonia / Finland	No information	Proponent
5	Finland / Russia	€ 1,500 +	Proponent
		+ € 500	NGO in AP
6	Finland / Sweden	No information	Proponent
7	Finland / Sweden	about € 8,000 — 10,000	Proponent
8	Italy / Croatia[9]	about € 5,000 — in each country	Proponent (joint company)
9	Kyrgyzstan / Kazakhstan	US$ 500	NGO
10	United Kingdom / France, Belgium, Denmark, Germany, Netherlands	US$ 80,000	Proponent
		US$ 300	Competent authority of PO

For many countries the question is: in a transboundary EIA, where such costs are likely to arise, who is responsible for meeting the costs of participation by members of the public in the affected Party? The Convention itself is silent on the question of costs for translation and other associated costs though the question has been discussed and it has been recommended that the Party of origin should normally meet such costs. In accordance with decision II/1 (included in the report of the second meeting of the Parties ), in general, the Party of origin is responsible for translation as well as for the cost. According to the Guidance on the Practical Application of the Espoo Convention (as appended to decision III/4 and available here), the cost of public participation in a transboundary EIA (including the translation) can be covered by:

(a) the developer (proponent);

(b) the Party of origin;

(c) the affected Party;

(d) an International Financial Institution;

(e) a combination of two or more of the above mentioned bodies.

It may be helpful to consider each of these possible options.

(a) The proponent meets the costs

It is a generally accepted principle of environmental protection that the “polluter pays”. If this were applied in EIA cases under the Convention it would suggest that the responsibility for meeting essential costs should fall to the proponent or to the competent authority in the Party of origin.

Analysis of the case studies received suggests that this concept is broadly supported by proponents and also by the competent authorities in the Party of origin. In seven of the ten case studies the proponent accepted responsibility for the financial aspects of public participation in transboundary EIA procedure in Party of origin and affected Party (see Box 4).

There is, however, no requirement for this in the Convention. On the other hand, the proponent has an obligation to pay the cost of an EIA procedure in accordance with the national legislation of some countries, for example, in accordance with Finnish EIA law:

The Finnish Act on EIA procedure (section 22) states that “the developer shall answer for the cost of investigating and publishing information on environmental impact and related hearings, and for the cost of translation needed to assess transboundary impact.”

In preparing national EIA regulations, this provision of the Finnish EIA Act may serve as a useful example of how a legislative provision may be made to provide for costs that may arise in transboundary EIA.

 Unless provided for in national law, it may not be possible to require a proponent to meet the costs associated with public participation in transboundary EIA. In such cases the competent authority will only be able to request the proponent to meet the costs. A good way of resolving costs issues may be bilateral or multilateral agreements between concerned Parties [11].

Most proponents of major schemes that fall within the scope of the Convention are, however, likely to be aware of their environmental responsibilities and the need to ensure there is an understanding of the activity and its potential effects on all affected Parties. Project proponents should be generally aware that it is in their interests for the successful implementation of their project to reassure the public and affected Parties that appropriate safeguards and mitigation measures have been built into the project. Project proponents may be expected to work closely with the competent authorities in both the Party of origin and the affected Party to achieve this result. As analysis of the case studies suggests, they have generally been supportive and have provided for the costs of translation.

In the United Kingdom, the proponent of a major marine dredging scheme agreed on a voluntary basis to meet the cost of translating all of the EIA documentation into the languages of five countries that could have been affected by its proposal. The proponent also paid for translation costs to send initial notification letters to all five countries. The estimated cost to the proponent was in the region of US$ 80,000 (case study 10).

While proponents may agree to meet costs of translation and other costs relating to public participation in a transboundary EIA, there has to be recognized that they will be unlikely to meet unlimited, unspecified and unnecessary costs. It is important to remember that at this stage the proponent is not guaranteed to be given development consent for the proposed activity. The proponent may agree to meet reasonable costs to improve the likelihood of getting such consent; but equally it will not wish to incur expense of little value.

(b) The Party of origin meets the costs

If the proponent is unwilling or unable to meet the costs of translation, etc., the competent authority in the Party of origin must consider whether it has to meet them. For most projects within scope of the Convention, approval will be subject to a development consent procedure administered by the competent authorities. These procedures may require the proponent to pay an application fee or consent fee designed to offset the administrative, management and legal costs associated with processing the application. Fees will vary from country to country and they may be a fixed rate or variable. However, a common feature may be a wish to recover legitimate costs properly incurred by the competent authority in handling the application.

For transboundary EIA projects, Parties may wish to consider whether there is any need for a scale of charges or fees that is greater than applies to other projects without transboundary effects. It will be for Parties to consider whether or how this could be done and whether a ceiling on fee levels should be imposed so that a proponent would have certainty about costs or whether costs would be chargeable to the proponent on a cost-recovery basis. Whichever method is used, it is important that costs are properly controlled to reflect only those that are essential to the procedure of public participation in transboundary EIA and that the funding arrangements are transparent.

(c) An affected Party meets the costs

It may be unlikely that an affected Party will be asked to meet costs arising from its decision to take part in the EIA procedure for a project originating in another country that is likely to have significant environmental effects in the affected Party. It is more likely that the costs associated with public participation will be met by the Party of origin, as recommended by the Meeting of the Parties. However, in exceptional circumstances it may be necessary if no other source of funds is available. And though it may be unexpected and unwelcome, it may not be wholly negative.

Taking responsibility for these costs means that the affected Party assumes control of the procedure. Since it is meeting costs that would normally be met by the Party of origin, the affected Party will be able to argue for extensions of time allowed for consultation to ensure adequate translation of documentation, if required, and to ensure adequate public consultation with members of the public in the affected Party. Within the time scales agreed with the Party of origin, it can control the procedure, ensuring that the public participation for the project is at least as comprehensive as that set for projects authorized under its own national procedures. If these are better than those of the Party of origin this may be an advantage.

Nor need it be expensive if the only costs in the affected Party are incurred in advertising the development and giving details of where to find details of the EIA documentation and where and how to make comments or objections.

In providing comments to the Party of origin, an affected Party that had to meet its own costs may feel under no obligation to submit its comments in the language of the Party of origin.

In one case study under consideration (a multipurpose hydropower system on the River Drava, near the border between Croatia and Hungary, case study 3) the summary of the environmental impact study (sent in English) and relevant parts from the whole documentation concerning the transboundary impacts and the statement of the competent authority of the Party of origin were translated by the competent authority of the affected Party.

(d) An international financial institution meets the costs

International financial institutions (IFIs) generally would not be responsible for directly undertaking public consultation or covering the costs of it for a proposed project. Most IFIs have environmental procedures and policies that require that EIA, including public participation, is undertaken before they will take a decision whether to finance projects that have the potential for significant environmental impacts (see, for example, the environmental policy and procedures of the European Bank of Reconstruction and Development (EBRD), available here).

Although IFIs may not directly provide funds for the public consultation, they do play a very important role in benchmarking against international standards and increasing the expectation of the public to have adequate information and opportunities for participation in an EIA procedure. Some IFIs, such as EBRD, have specific commitments to the Espoo Convention in their policies; some have other relevant commitments such as the World Bank Group's Safeguard Policies on International Waterways. Any project seeking IFI financing will need to ensure that their planning process includes provisions to meet the relevant standards.

(e) A combination of two or more of the above-mentioned bodies

There may also be occasions, for example when it is intended that transboundary projects such as roads and bridges will be jointly proposed and executed, when a Party is both Party of origin and affected Party. In such cases the concerned Parties will probably develop a joint management team to develop and oversee the project and the relevant EIA procedures. Given the circumstances, it is likely that each Party will simply assume responsibilities for public participation as determined under its own national EIA procedure.

But specific arrangements may also need to be made to ensure that members of the public in all affected countries have access to a single EIA report that provides information about the effects of the whole of the project and proposed mitigation measures. There may also need to be arrangements to ensure an exchange of information so that the decision-makers are fully aware of the views expressed by the public on the other side of the frontier.

In the case of the project to construct a bridge over the River Danube between the cities of Vidin in Bulgaria and Calafat in Romania (case study 2), the participants from relevant authorities in both countries, from NGOs and from the concerned public paid the costs of participation in the hearings themselves. The translation of the documentation was organized by joint Project Implementation and Management Units, which were established in the structures of the competent authorities of both countries as a result of agreement between the Governments. The local municipalities in each country covered the costs of the organization and translation into the Romanian and Bulgarian languages in the public hearings.

Other means of funding are also possible on an ad hoc basis. For example, in the case of the Nuclear Power Plant “Loviisa-3” in Finland (case study 5), the proponent met the cost of translation and publishing the EIA booklets in the language of the affected Party, and an NGO of the affected Party met the cost of dissemination of these booklets through the public of the affected Party and of receiving their comments.

It is important to emphasize that not every development will need a complex public inquiry or a series of public meetings. But it is essential that public participation is carried out effectively, in particular if these are not features of the national EIA procedures in the concerned Parties. In such cases the cost of public participation may be very small, especially in comparison with overall budget of the proposed activity, but it is recommended to include cost of public participation in the budget of this activity.

It may be recommended that the proponent of an activity should have financial obligations for organizing public participation in Party of origin and in affected Party, including payment for translation and dissemination of EIA materials for the public.

A key issue in effective public participation in a transboundary EIA procedure is the availability of adequate information about the proposed activity, its likely effects on the environment and the measures proposed to mitigate them. While it may not always be necessary, a good and timely translation of the EIA documentation into the language of the affected Party will greatly facilitate meaningful involvement in the EIA procedure of the authorities and members of the public in the affected Party.

On the other hand, a poor translation may impede the process if in translation key information is “lost” or inadvertently misrepresented. Given the detailed, technical nature of some environmental reports this may occasionally happen. Difficulties with translation may never be entirely eliminated but they may be reduced if the proponent responsible for carrying out the EIA ensures the documentation is written in clear and easily understandable language.

Those responsible for organizing public involvement in a transboundary EIA procedure should also pay special attention to preparing relevant EIA documentation for the public of the concerned Parties in language that is clear and understandable. This is especially the case when preparing summary documents, such as the non-technical summary of EIA documentation. For many people, these summaries will be all that they will have time, or take trouble, to read. It is therefore important that the summary provides the essential information and is presented clearly and concisely, avoiding language that may create difficulties in translation to another language.

Responsibility for translation is a particular case of a general responsibility for financial aspects of the procedure of public participation in a transboundary EIA. The case studies indicated that the proponent usually assumes responsibility for financial aspects, such as translation of transboundary EIA materials (Box 4). In the case of joint projects of two Parties, payment for the translation may be by joint bodies or joint private firms of these Parties. This was done in the case of the bridge over the River Danube between Bulgaria and Romania (case study 2) and the Italian-Croatian under-sea gas pipeline (case study 8), respectively.

In the majority of case studies presented, the summary of the EIA documentation was translated for the public of affected Parties (case studies 1, 3, 4, 5, 7, 8, 10). The Party of origin or the proponent may decide to translate either all or the majority of the EIA documentation. At the very least, the non-technical summary of the EIA documentation should be translated, and additional information may be provided to the public of the affected Party upon request.
54. Another possible way of dealing with the issue of translation is the possibility for the full EIA documentation to be presented by the Party of origin or the proponent to the public of the affected Party upon request without translation. This was the case in the Finnish nuclear power plant “Loviisa-3”; the proponent presented the full EIA report in the English language upon the request of an NGO of the affected Party (case study 5). This is likely to be helpful in cases where the Parties share a common working (or official) language and the documentation exists in this language.

It would be useful, if financial responsibility for organizing public participation in affected Party, including volume of translated materials, responsibility for translation, number of copies were determined in the first stage of consultation or/and fixed in the agreement between concerned Parties.

 2.4 Notification of affected Party and public of Party of origin. Timing

Article 3.1 of the Convention requires the Party of origin to notify the affected Party as early as possible about a proposed activity that is likely to have a significant adverse transboundary impact. It shall do this no later than when informing its own public about that proposed activity.

Notifications shall be sent to the special points of contact regarding notification of affected Parties. It is necessary to emphasize that Points of contact regarding notification are not always the same as the national focal points, which are used only for administrative matters regarding the Convention. Where the contacts are different it may be appropriate to copy the notification to the Focal point for information and to facilitate the procedure.

In terms of the obligations under the Convention, the purpose of the notification is to enable a potentially affected Party to decide whether it wishes to be involved in the EIA procedure of the Party of origin for the proposed activity that is likely to cause a significant adverse transboundary impact (Article 3.3). A notification shall contain, inter alia, information listed in Article 3 of the Convention. In addition, the first meeting of the Parties of the Convention recommended Parties to use to the extent possible the format approved by this Meeting when transmitting a notification according to Article 3 of the Convention (decision I/4). Details of this format are available here.

Neither the notification format nor the Convention specifies a period of time that must be allowed for the affected Party to decide whether it wishes to take part in the EIA procedure. It is for the Party of origin to set a timeframe consistent with its national procedures. But in doing so, the Party of origin should recognize that in forming its view on whether it wishes to take part in the EIA procedure, the authorities in the potentially affected Party may wish, or be required by its own national legislation, to consult with regional or local competent authorities, statutory environmental authorities and members of the public. To ensure the affected Party is able to form a considered view, the Party of origin may have to allow a significantly longer period for a response than would normally be allowed in the case of non-transboundary EIA.

The Estonian-Finnish case study (4) is a positive example of how this was done in practice, with the competent authorities in the Party of origin providing a more generous time limit for comment from the affected Party than for the public in its own country (Box 5).

How much additional time should be allowed for the affected Party is a matter for agreement between the concerned Parties. But, typically, a Party of origin that allows a three-week period for such consultation under its national EIA procedures might need to allow between six and seven weeks in the case of a transboundary EIA. This additional time will be required particularly if the Party of origin invites the authorities in the affected Party to make the arrangements and it is to allow for an equivalent period of public participation in the affected Party. The extended period will allow for transmission of documents to the authorities in the affected Party, arrangements for public advertising, an equivalent time period for public participation, and receipt and transfer of comments from the affected Party to the authorities in the Party of origin (Box 5).

   

Box 5. Time limits established for receiving comments or objections from public of affected Party on EIA programme and on EIA report Case study reference (in Annex 2) Party of origin / Affected Party Time limits (days) established for receiving comments or objections from public of affected Party on: EIA programme EIA report 1 Azerbaijan / Georgia / Turkey[12] 60 45-90 2 Bulgaria / Romania[12] 30-31 3 Croatia / Hungary 30+30 (in addition) 4 Estonia / Finland 30 / 14 [13] 30 / 21 [13] 5 Finland / Russia 60 60 6 Finland / Sweden 28 (4 weeks) 49 (7 weeks) + 42 (extension) 7 Finland / Sweden 42 (6 weeks) 49 (7 weeks); 28 — for a new alternative 8 Italy / Croatia[12] 30 [14] 10 United Kingdom / France, Belgium, Denmark, Germany, Netherlands   70 (10 weeks) for initial consultations + 42 (6 weeks) to comment additional materials

It is recommended that the notification allow adequate time for consultation within the affected Party's administration before that Party responds. If it responds positively to an invitation to take part in the EIA procedure, it is recommended that the authority in the affected Party should provide information to the authority in the Party of origin about the way(s) in which public participation may most effectively be carried out in the affected Party.

The case studies revealed that, in those cases where the affected Party decided that it wished to take part in the EIA procedure, the information provided at the notification stage usually contained sufficient information to allow for early discussion with the public of the affected Party on the EIA programme.

The term “as early as possible”, which is used in the Convention, was clarified by the analysis of the case studies. They showed that in some cases “as early as possible” might mean the very beginning of the EIA procedure (Box 2). The participation of the public of the affected Parties was most effective in cases where it began during discussion of the EIA programmes, and then continued as the results of EIA procedures or EIA reports were discussed. Precisely this form of public participation was realized in the Estonian-Finnish (case study 4), Finnish-Russian (case study 5) and Finnish-Swedish (case studies 6 and 7) projects (Box 5). The operator of the Azerbaijan-Georgian-Turkish project (case study 1) also notified the public of the affected Parties at the start of the EIA procedure.

In all the case studies received, notifications were sent to the competent authorities of the affected Parties before the final decisions about proposed activities were made, so that they had the opportunity to inform members of their own public.

The extent to which there is scope for involving the public of the Party of origin in the screening and scoping stages of the EIA procedure for a specific project depends on the provisions within the national EIA legislation and procedures. If these are provided for in national legislation, the stage at which they begin in the Party of origin may provide a suitable moment for “early notification” of the proposed activity to the public in the affected Party.

As discussed earlier (see section 2.2 above), the Convention states (Article 2.6) that the Party of origin must ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin. In practical terms this means that unless they communicate directly with members of the public in the affected Party, the authorities in the Party of origin will need to allow additional time to provide for the transfer of documents to the authorities in the affected Party and for these authorities to communicate information to the public likely to be affected; and of course for a similar additional period after expiry of the period of time allowed for public participation in the Party of origin for receiving comments or objections from the public of affected Party (case study 5).

Usually in practice (Box 5), the time limits established for receiving the comments or objections on the EIA programmes (about 30-40 days) do not differ very much from the time limits established for receiving such responses on EIA reports (about 40-60 days). Shorter time limits (about 2 weeks for the EIA programme and 3 weeks for the EIA report) may be established for those countries that have good communication and similar national EIA systems (see, for example, case study 4).

2.5 Joint responsibility of concerned Parties for participation of the public of the affected Party in a transboundary EIA

According to Article 3.8 of the Convention, the concerned Parties (Party of origin and affected Party) shall ensure that the public of the affected Party in the areas likely to be affected:

(a) be informed of the proposed activity, and

(b) be provided with possibilities for making comments or objections on the proposed activity, and shall be responsible for the transmittal of these comments or objections to the competent authority of the Party of origin, either directly to this authority or, where appropriate, through the Party of origin.

This section of the guidance develops the obligation of the Party of origin to inform the affected Party about a proposed activity (see section 2.4 above); but if the affected Party responds affirmatively to the notification, there is then a joint obligation on all concerned Parties for the participation of the public of the affected Party in a transboundary EIA. The concerned Parties are expected to make the practical arrangements for such public participation. Different aspects of such arrangements that were made in practice appear in the case studies (Box 6).

The case studies demonstrated that for effective participation, the public must be able to understand the information, and this leads to the conclusion that the documentation should be available in a language that is understandable to them as discussed in section 2.3 above. This could require translation of the documents, or relevant parts of documents, or/and non-technical summaries of documents. It means that the same information should be provided to the public of the affected Party as to the public of the Party of origin.

The following recommendations are made for the concerned Parties:

(a) the Party of origin should be responsible for the translation (into the language(s) of the affected Parties) of all the documents that are disseminated within the procedure of a transboundary EIA, for providing the information and for receiving the comments;

(b) if the Party of origin distributes the information this should happen in cooperation with or according to arrangements agreed with the affected Party; affected Parties may decide to handle the distribution of information via particular authorities or nominated organizations; the concerned Parties could distribute the information to the public by means of the mass media, e-mail, the Internet, public hearings or by other appropriate means;

(c) the Party of origin and the affected Party should make arrangements for collecting the comments from the public, and sending them to the Party of origin; there may be a need for translating the comments of the public so that the competent authority of the Party of origin can understand these comments;

(d) if costs are a problem, the Party of origin may be able to recover the cost from different sources, for example the proponent of the activity.

It should be strictly recommended that, if the public of the affected Party sends its comments or objections to the competent authority of the Party of origin, it should also send copies of these comments or objections to the competent authority of the affected Party. This recommendation is made because only states are Parties to the Convention, and the competent authorities of the Party of origin and affected Party are responsible for carrying out the procedure of transboundary EIA. That is why the competent authorities of both Parties — Party of origin and affected Party — should have all information dealing with this procedure (including the comments or objections of the public of the affected Party).

It should be mentioned that the Convention provides that the Party of origin is responsible for presenting the EIA material to the affected Party. There may be situations when the Party of origin receives a response from the affected Party, but the Party of origin does not know whether the views of the public of the affected Party are reflected in this response. However, it is recommended that the Party of origin should be in close contact with the affected Party as it has an interest that public participation took place. This derives from Article 3.8 of the Convention, which clearly puts the burden on ensuring public participation on the concerned Parties, i.e. Party of origin and affected Party.

2.6 Distribution of the EIA documentation and submission of comments of public of affected Party

The Convention lays down (Article 4.2) that:

• The Party of origin shall furnish the affected Party, as appropriate through a joint body where one exists, with the EIA documentation.
• The concerned Parties (the Party of origin and the affected Party) shall arrange for:

  (a) distribution of the EIA documentation to the authorities and the public of the affected Party in the areas likely to be affected, and

  (b) for the submission of comments to the competent authority of the Party of origin, either directly to this authority or, where appropriate, through the Party of origin, within a reasonable time before the final decision is taken on the proposed activity.

This suggests that:

• The Party of origin should transmit the EIA documentation to the affected Party and receive comments;
• The Party of origin usually should be responsible for the translation of the EIA documentation, of the comments received from the affected Party and of all the documentation that the concerned Parties send each other during the transboundary EIA procedure;
• The Party of origin and the affected Party should specify the arrangements for distributing the EIA documentation to the authorities and the public of the affected Party in the areas likely to be affected, distribute the documentation, collect comments on the documentation and transmit them to the Party of origin or its competent authorities.

Such very important practical aspects regarding public participation in transboundary EIA as financing and translation, and their implementation in practice, are discussed in section 2.3 above. Financial responsibility and translation of EIA documents by the Party of origin is good practice but is not a requirement of the Convention. But analysis of received case studies suggests that this concept is broadly supported by the proponents (Box 4) or it may be requirement of national EIA legislation (for, example, in Finland).

Different methods of informing the public, distributing the EIA documentation and receiving public comments may be recommended for effective public participation in a transboundary EIA (Box 7). These recommendations were developed from analysis of good practice in applying the Convention (see case studies, Annex 2) and some experts' assessments. It is obvious that the effectiveness, benefits and/or disadvantages of each method or combination of methods depend on the circumstances of the particular projects.

Because the Convention deals with relations between Parties (i.e. States), it does not set out the practical information about the process of public participation, which is necessary for effective public participation. Some Parties may have national laws containing these information requirements, in some cases derived from the Aarhus Convention, or from the EU EIA Directive. Box 8 lists, first, the Convention's requirements for the content of the EIA documentation and, second, recommendations derived from regulations of the Russian Federation and the United Kingdom. It should be mentioned that examination of the documents — i.e. the opportunity to study the EIA documentation and to make notes — should be free of charge. This obligation can be met through the establishment of a convenient location where the information can be kept in an accessible form and consulted at reasonable hours. As regards copies or other photocopying services the authority can impose reasonable charges consistent with the main aim of providing for effective public participation.

2.7 Final decision and results of public participation

The Convention states (Article 6.1) that the Parties shall ensure that, in the final decision on the proposed activity, due account is taken of:

(a) the outcome of the EIA, including the EIA documentation,

(b) the comments thereon received pursuant to Article 3.8 and Article 4.2, and

(c) the outcome of the consultations as referred to in Article 5.

The comments received pursuant to Article 3.8 should include any comments or objections from the public of the affected Party on the proposed activity. The comments received pursuant to Article 4.2 should include any comments from the public of the affected Party on the EIA documentation.

The comments or objections of the public of the affected Party on the proposed activity and on the EIA documentation, resulting from the consultation, should be taken into account in the final decision on the proposed activity.

This provision is implemented in practice in different ways.

In Azerbaijan and Georgia, the public was informed about this by the proponent and by the competent authorities of these countries (case study 1). In the case of the bridge over the Danube (case study 3), the Bulgarian Ministry of Environment and Water (the competent authority of one of the concerned Parties) reflected in the decision on the preliminary EIA the results of public consultations.

The information on the EIA decision was published in a national Bulgarian newspaper and copies were given to the proponent (Bulgarian Ministry of Transport and Communications), the local municipality and the authorities concerned. The decision was translated into English and was sent to the Romanian Party through Project Implementation and Management Units that were established within the administrative the structures of the competent authorities of both Parties.

In accordance with the Finnish national EIA law, the coordination authority must include a summary of the views expressed by the public on its statement on the EIA programme and EIA report (case study 6). The final decision is given separately and later, pursuant to other Acts, which stipulate the announcement of the final decision. The authority that grants the permit will announce the final decision. The competent authority will send the final decision to the point of contact of Finland, who will send it to the point of contact of the affected Party.

According to the national law of Croatia and of Italy (case study 8), the proponent has the obligation to make publicly available the decision for the public of its own country.

In the United Kingdom (case study 10), the procedure is specifically designed to ensure that the views expressed by the public are taken into account. United Kingdom EIA legislation requires the competent authority to publish decisions and in doing so to state that in reaching a decision it has taken the environmental information into account. Environmental information includes representations made the public. The proponent prepares a summary of all comments received and of any discussions held in an effort to resolve concerns that may have been raised. As necessary a supplement to the Environmental Statement is also prepared. These documents are copied to all those who commented, with a period of six weeks allowed for comments to these documents. The final decision should be made available to the authorities of the affected Parties as required under Article 9 of the amended EU EIA Directive and of Article 6.2 of the Convention.

Decision II/1 of the second meeting of the Parties (“Bilateral and Multilateral Cooperation”) recommended that if (affected) individuals of the affected Party are given a right to appeal against the decision, extra information on these possibilities may be necessary, for instance in a special information brochure (ECE/MP.EIA/4 , para. 68). The Guidance on the Practical Application of the Espoo Convention (appended to decision III/4) recommends that the information about such a right of appeal should be given in an annex to the decision.

 3. RECOMMENDATIONS ON INCREASING EFFECTIVENESS OF PUBLIC PARTICIPATION IN A TRANSBOUNDARY EIA [back to contents]

Analysis of the case studies shows that there are some aspects of public participation in a transboundary EIA that are not described in the Convention directly, but which may increase the effectiveness of public participation in this procedure.

3.1 Preliminary work with potential participants

Projects that have transboundary effects generally have to be determined within the legal framework established for EIA within the Party of origin. The principles of good administration require that applications are dealt with efficiently and that decisions are taken as quickly as possible. Usually there are time constraints within which a decision is expected to be taken. Consequently the procedures for transboundary EIA and public participation will also have limited time scales. To maximize the time available, and to ensure an effective procedure for transboundary EIA, the following preliminary measures or activities may be useful:

(a) to establish effective relations with national focal points of the Convention and with points of contact regarding notification in their own countries for a clear understanding of how they should interact in cases of transboundary EIA;

(b) to inform potential proponents of projects with possible transboundary effects about the need for transboundary EIA with public participation according to the provisions of the Convention;

(c) to recommend to potential proponents of projects with possible transboundary effects to include in the budgets of these projects adequate resources for financing measures aimed at public participation in a transboundary EIA;

(d) to recommend to potential proponents of an activity with possible transboundary effects to be in contact with the competent authorities from the very beginning of the EIA procedures for these projects so that they have early knowledge of whether these projects requires a transboundary EIA with participation of the public of the affected Party;

(e) to establish effective relations with relevant authorities involved in transboundary EIA procedures in their own countries;

(f) to understand which NGOs and groups of the public may be interested in and have relevant skills for participation in transboundary EIA; to establish contacts (by e-mail, fax, telephone and so on) with these NGOs and groups of the public.

It would be useful if Parties (competent authorities, points of contact regarding notification and focal points) were to establish effective relations with their counterparts in potential affected Parties (neighbouring countries). These would help promote and develop an understanding of the legislative background and practice of carrying out national procedures of EIA in potential affected Parties. In preparing for future transboundary EIAs, it could be very useful to receive information about the criteria used for identifying activities that should be subject to EIA, time scales for EIA, the manner in which public participation is organized, methods of informing the public and collecting public comments and, objections and so on. Preliminary work by the competent authorities of Finland (Party of origin) and the Russian Federation (affected Party) in the planning of the Nuclear Power Plant “Loviisa-3” may be taken as an example of good practice (case study 5). Contacts between the relevant authorities were established before the start of this project. The affected Party nominated an organization (an NGO) that agreed to be responsible for organizing the future involvement of the Russian public in the transboundary EIA procedure. That is why the Party of origin and the proponent received the comments of the public of the affected Party on time (within the 60-day limit established by Party of origin).

It would be useful if competent authorities of concerned Parties would develop a special web page on their existing web site dealing with transboundary EIA and would inform all potential participants in EIA procedures in its own country and in potential affected Parties about this. Such web pages may contain information about proposed activities with likely transboundary effects and the modalities for public participation in transboundary EIA (timetable, points of contact, sources of additional information, public hearings and so on).

 An order of a Russian competent authority issued in summer 2003 [15] may be taken as an example of moving in this direction. According to this order, information about all applications received for expertise (checking) and permission by federal and regional bodies of state environmental expertise should be presented on the web site of these bodies of the Ministry. These would include activities that may have transboundary effects. Having such information, the public may decide whether to participate in these projects.

3.2 Contacts with potential affected Parties: Bilateral and multilateral agreements; Joint bodies

Bilateral or multilateral agreements concerning transboundary EIA between potential affected Parties may be a practical way to overcome difficulties due to differences between legislation and EIA practice of the different Parties.

Decision II/1 of the second meeting of the Parties (“Bilateral and multilateral cooperation in the framework of the Convention on environmental impact assessment in a transboundary context”) has a chapter on “Information and public involvement” (ECE/MP.EIA/4 ) that may lead to a better understanding of the different aspects of public involvement in transboundary EIA.

In regions where direct communication between countries is politically sensitive or difficult, there can often still be cooperation on environmental issues. In these circumstances, it is sometimes more effective to use a third party or joint body to help with the notification. For example, transboundary impacts are often in bodies of water with several littoral states. UNEP's Regional Seas Programme has set up structures around the world that might be useful for communication in transboundary EIA (for example, the Black Sea Environmental Programme and Caspian Environment Programme).

In addition to the items mentioned in the document “Bilateral and multilateral cooperation” (ECE/MP.EIA/4 ), it may be recommended to include in bilateral or multilateral agreements such details of public involvement as:

• responsibility for organizing public participation;
• time scale;
• financial aspects of public participation;
• translation of materials for the public;
• methods of informing the public and receiving their comments;
• volume and format of EIA materials presented to public;
• methods of informing the public about final decision on a proposed activity, etc.

Parties are recommended to establish, where appropriate, joint bodies for better management of the transboundary EIA procedure, and, in particular, public participation in this procedure. These joint bodies may be useful and important in regions where joint EIAs are common. It would be useful to provide a status for such joint bodies that would permit them to receive financial support from project proponents for public participation in transboundary EIA.

In the case studies presented, there was an example of such cooperation in the joint project dealing with the construction of a bridge over the Danube between the cities of Vidin in Bulgaria and Calafate in Romania (case study 2). A special agreement was signed between the Governments of Bulgaria and Romania for construction of the bridge. This agreement included obligations on joint EIA. A Joint Working Group on environmental problems was established to coordinate the environmental procedures. Project Implementation and Management Units were established within the administrative structures of the competent authorities for better implementation of the project, including public involvement. Establishment of these bodies improved matters in relation to public participation, for example, the Units organized translation of the EIA documentation.

3.3 Organizing points of contact for the public

One of the first tasks of the Parties of the Convention is to establish effective working national points of contact for notification and focal points, which have different obligations in the application of the Convention. Some Parties to the Convention decided to have one point, which serves as the point of contact for notification and as the focal point for administrative matters. This may lead to a useful saving of time during the EIA procedure.

In practice it might also be useful to establish a point of contact for each specific project for the public, so the public would always be communicating with someone knowledgeable about the proposed project, and thereby increasing the effectiveness of public involvement overall. Such a point of contact may be a person or a division of the competent authority or other authorities, a private firm, an institution, an NGO, etc. In the case study of the oil pipeline Baku-Tbilisi-Ceyhan (case 1) the proponent invited a private firm to organize public participation in transboundary EIA in two countries (Azerbaijan and Georgia) and used its own special division for work with the public.

In the case studies there were two situations where NGOs were invited by the competent authority to be responsible for organizing public involvement in the transboundary EIA: the Nuclear power plant “Lovissa 3” (case study 5; Finland-Russia) and a paper mill (case study 9; Kyrgyzstan-Kazakhstan). In these case studies, NGOs worked effectively and they did not ask for financial support from the authorities of the affected Parties. The cost of these actions was relatively small (about US$ 500, Box 4). The main benefit of establishing such points of contact with the public is in fact that they can act quickly and effectively so that the procedure is not unduly delayed; comments of the public of the affected Parties were received and transmitted to the Parties of origin on time.

It may be recommended that a special body or a special person should be created or nominated on behalf of the authorities to coordinate public participation in transboundary EIA. At the same time, final responsibility lies with state authorities.

3.4. Role of the public

The public should participate fully in transboundary EIA in order to make both the process of environmental decision-making on projects with transboundary effects and the final decisions on such projects more transparent and legitimate. The public should organize itself for effective participation in a transbo