Implementation
of Directive 2001/42 on the Assessment of the Effects
of Certain Plans and Programmes on the Environment
(the 'EC Guide')
6. QUALITY OF THE ENVIRONMENTAL REPORT |
Table of Contents |
8. MONITORING |
7. CONSULTATION
7.1. The consultation provisions of the Directive
oblige Member States to grant an opportunity to
certain authorities and members of the public to
express their opinion on the environmental report
and the draft plan or programme. One of the reasons
for consultation is to contribute to the quality
of the information available to those responsible
for the decisions that are made concerning the plan
or programme. Consultation might sometimes reveal
important new information which leads to substantial
changes to the plan or programme and consequently
its likely significant environmental effects. If
so, it might be necessary to consider a revision
of the report and, if the changes justified it,
fresh consultation. The principal requirements on
consultation in the Directive are in Article 6,
but many other articles also deal with this issue.
This section deals with these in the following order.
It discusses first the relevant definitions; then
the question of who takes part in consultations;
what must be subject to consultation; some related
procedural provisions; transboundary issues; and
finally the decision on the plan or programme.
7.2. An overview of the Directive's information
and consultation requirements is given in Box 1.
|
Box 1: Stage of
SEA
|
Consultation requirements in Domestic
situations |
Additional requirements in Transboundary
situations |
| Determination if a plan or programme requires
an SEA |
Consultation of authorities (Art. 3(6))
Information made available to the public
(Art. 3(7)) |
|
| Decision on scope and level of detail of the
assessment |
Consultation of authorities (Art. 5(4)) |
| Environmental report and draft plan or programme
|
Information made available to public (Art.
6(1))
Consultation of authorities (Art. 6(2))
Consultation of the public concerned (Art.
6(2)) |
Consultation of authorities in the Member
State likely to be affected (Art. 7(2))
Consultation of the public concerned in the
Member State likely to be affected (Art. 7(2)) |
| During preparation of plan or programme |
Take account of environmental Report and opinions
expressed under Art. 6 (Art. 8) |
Take account of results of transboundary consultation
(Art. 8) |
| Adopted plan or programme; statement according
to Art. 9(1)(b), measures concerning monitoring |
Information made available to authorities
(Art. 9(1)) Information made available to the
public (Art. 9(1)) |
Information made available to the consulted
Member State (Art. 9(1)) |
7.3. Public participation in decision-making is
also dealt with by UN ECE Convention on access to
information, public participation in decision-making
and access to justice in environmental matters (Aarhus
Convention).Article 7 of the Convention contains
provisions on public participation during the preparation
of plans and programmes relating to the environment.
Its provisions are incorporated in the SEA Directive
insofar as they apply to plans and programmes falling
under the scope of the Directive.[16]
Article 2(b)
'Environmental assessment' shall mean the preparation
of an environmental report, the carrying out of
consultations, the taking into account of the environmental
report and the results of the consultations in decision-making
and the provision of information on the decision
in accordance with Articles 4 to 9.
7.4. This definition clearly states that consultation
is an inseparable part of the assessment. Further,
the results of the consultation have to be taken
into account when the decision is being
made. If either element is missing, there is, by
definition, no environmental assessment in conformity
with the Directive. This underlines the importance
that is attached to consultation in the assessment.
Article 2(d)
'The public' shall mean one or more natural
or legal persons and, in accordance with national
legislation or practice, their associations, organisations
or groups.
7.5. The definition of the public
follows that of the Aarhus Convention. It refers
to any natural or legal person. The question of
whether a particular member of the public is affected
or has an interest is dealt with under Article 6.
7.6. In many cases, an association, organisation
or group of natural or legal persons will
itself have legal personality, and will be directly
covered by the definition. The language should be
interpreted, therefore, to provide that associations,
organisations or groups without legal personality
(including nongovernmental organisations) may, if
national legal frameworks so provide, also constitute
'the public' under the Directive. In Article 6(2)
in conjunction with Article 6(4) the Directive provides
for a clear role for associations, organisations
or groups.
Article 6(1)
The draft plan or programme and the environmental
report prepared in accordance with Article 5 shall
be made available to the authorities referred to
in paragraph 3 of this Article and the public.
7.7. This Article is the starting point for consultation
and any subsequent public debate about the proposed
plan or programme. The draft plan or programme and
the environmental report have to be made available
to the public (which is defined in Article 2(d)).
It is, however, only the public identified under
paragraph 4 that is given the right to express its
opinion on these documents. Whether or not the public
is the same in any given case will depend on the
plan or programme in question and on national law
and practice.
7.8. The Directive does not specify the methods
by which information shall be made available
but these must be adequate to enable the . public
to express their opinion in accordance with Article
6(2). Appropriate publicity arrangements will be
needed, and the information will need to be readily
accessible. Also, interpretation in the light of
Article 7 in conjunction with Article 6(3) of the
Aarhus Convention would suggest effective dissemination
either by public notice or individually as appropriate.
This is true too for the information to be made
available under Articles 3(7) and 9(1). In addition
it might be appropriate for members of the public
who have objected to a proposal to be informed individually
about the decision (as is already normal practice
in some Member States).
Article 6(2)
The authorities referred to in paragraph 3
[of Article 6] and the public referred to in paragraph
4 [of Article 6] shall be given an early and effective
opportunity within appropriate time frames to express
their opinion on the draft plan or programme and
the accompanying environmental report before the
adoption of the plan or programme or its submission
to the legislative procedure.
7.9. The time frame needs to be
laid down in legislation. Member States are free
to determine its duration so long as it meets the
requirement to give an 'early and effective' opportunity
for responses. Experiences with the EIA Directive
and other consultation procedures will give Member
States information about the time frames needed.
7.10. Different time frames may be appropriate
for different types of plan or programme but care
should be taken to allow sufficient time for opinions
to be properly developed and formulated on lengthy,
complex, contentious or far-reaching plans or programmes.
Adequate time will also be needed for the planning
authority to take these views into account before
deciding on the plan or programme. Sometimes requests
for additional information may be made and the time
frame for consultation may also need to take into
account the time for the responsible authority to
respond.
Article 6(3)
Member States shall designate the authorities
to be consulted which, by reason of their specific
environmental responsibilities, are likely to be
concerned by the environmental effects of implementing
plans and programmes.
7.11. In this article, authorities
covers formal governmental or public authorities,
defined by administrative or legal requirements
(see also the commentary at paragraphs 3-12 - 3.13
above). They might include environmental inspectorates
(at the national, regional or local level), environmental
research institutions performing a public task or
units in government (at the national, regional or
local level) that are likely to be concerned by,
or have expertise in, the environmental effects
of implementing the plan or programme in question.
7.12. The phrase specific environmental
responsibilities refers to their responsibilities
as authorities (for example, to monitor the quality
of the environment, inspect sites or activities,
carry out research, etc).[17]
7.13. The designation of the authorities
in accordance with Article 6(3) can be done in a
general way by including them in the legislation
implementing the Directive. For example, a national
environmental inspectorate could be designated as
an authority to be consulted in all cases, or in
specified classes of case. It would, of course,
be possible to provide for exemptions from such
a general designation.
7.14. Authorities can also be designated case by
case, provided the implementing legislation is drafted
so as to permit this type of designation. The precise
way in which this is done will depend on the national
legal system. One method might be to designate in
the implementing legislation several authorities
for the purposes of this Article. They might include
environmental inspectorates or regional governmental
units that have a strong interest in the contents
of particular plans or programmes. In a case by
case approach, the planning authority subsequently
may designate which of these authorities are to
be consulted on individual cases, depending on the
contents of each plan or programme.
7.15. Member States may also decide to designate
authorities which have environmental responsibilities
in a more general way, for instance, 'neighbouring
local authorities'. This type of designation would
mean that the particular local authorities to be
consulted were those which have an interest in any
given plan or programme, without its being necessary
to consult every local authority in a country on
plans or programmes in which most of them had no
interest. This example seems a more intermediate
approach between general and case-specific designation.
Article 6(4)
Member States shall identify the public .,
including the public affected or likely to be affected
by, or having an interest in, the decision-making
subject to this Directive, including relevant non-governmental
organisations, such as those promoting environmental
protection and other organisations concerned.
7.16. The public affected or likely to
be affected by, or having an interest in, the decision-making
subject to this Directive can be described
as a subset of the public in general. (For the definition
of 'the public' see paragraphs 7.5-7.6 above. [See
discussion of the Protocol's article 2.8.]) This
provision requires Member States to identify that
subset, which is given the opportunity to express
its opinion on the draft plan or programme and the
environmental report (in accordance with Article
6(2)). But the duty to identify is not unfettered.
The identification must include the public
that is affected or likely to be affected
by, or that has an interest
in the plan or programme. It must also include relevant
non-governmental organisations and other organisations
concerned (see below). The public identified may
differ from one plan or programme to another. In
some situations, for instance in the case of a country-wide
plan or programme, the public with an interest or
likely to be affected may be very similar to the
public in general and the identification would have
to take account of that.
7.17. Relevant non-governmental organisations
are by definition considered part of the public
that is likely to be affected by, or has an interest
in the decision-making for a specific plan or programme
subject to assessment. NGOs may differ in their
field of interest. Some are, for example, more active
on the national level, and some are more active
on the regional or local level or on specific issues,
such as nature or waste. In identifying relevant
NGOs in accordance with Article 6(4), Member States
may tailor the identification to the nature and
contents of the plan or programme concerned and
the interests of the NGOs. NGOs with purely local
concerns would need to be identified even in the
case of plans or programmes relating to distant
localities, provided it was clear that their interests
were affected by those plans or programmes.
Article 6(5)
The detailed arrangements for the information
and consultation of the authorities and the public
shall be determined by the Member States.
7.18. The organisation of the detailed
arrangements for informing the public and
receiving reactions is left to the discretion of
the Member States. The legislation implementing
the Directive should provide for the framework for
these arrangements.
7.19. In contrast to the EIA Directive, Directive
2001/42/EC does not specify any details about the
method for consultation (e.g. the places for consultation
or the method of dissemination). By analogy with
the EIA Directive, the arrangements may, for example,
specify the places where information can be consulted,
the way in which the public may be informed, or
the way in which comments can be given. Member States
also have the opportunity of exploring more modern
arrangements for consultation such as internet-based
discussions, provided that these do not by their
nature exclude sections of the public.
7.20. There are many different methods and techniques
for public consultation. These range through seeking
written comments on draft proposals, public hearings,
steering groups, focus groups, advisory committees
or interviews.[18]
It will be important to select the most appropriate
form of consultation for any given plan or programme.
Article 3(6)
In the case-by-case examination and in specifying
types of plans and programmes [regarding the determination
of plans and programmes that are covered by the
Directive], the authorities referred to in Article
6(3) shall be consulted.
7.21. Before determining under Article 3 whether
an SEA is required, the relevant authorities have
to be consulted. When a case-by-case
approach is used, this consultation has to take
place on each separate occasion.
Article 3(7)
Member States shall ensure that their conclusions
pursuant to paragraph 5 [regarding the determination
of plans and programmes that are covered by the
Directive], including the reasons for not requiring
an environmental assessment pursuant to Articles
4 to 9, are made available to the public.
7.22. The determination under Article 3(5) of whether
an environmental assessment is required has to be
made public and, if an assessment is not to be required,
there is a specific obligation for the reasons to
be made publicly available. In publicising these
conclusions, Authorities may find it helpful to
state how the criteria in Annex II have been taken
into account.
Article 5(4)
The authorities referred to in Article 6(3)
shall be consulted when deciding on the scope and
level of detail of the information which must be
included in the environmental report.
7.23. This provision sets out requirements for
what is known as the 'scoping phase' in an environmental
assessment procedure. The EIA Directive does not
include a requirement to have authorities involved
on a mandatory basis at this stage in the EIA procedure.
It is introduced into Directive 2001/42/EC as a
means of improving the quality of the environmental
report. One of the objectives of scoping is to leave
less room for doubt later in the assessment process
about whether the correct topics are addressed in
the report and are covered in the right level of
detail.
Article 7(1)
Where a Member State considers that the implementation
of a plan or programme being prepared in relation
to its territory is likely to have significant effects
on the environment in another Member State, or where
a Member State likely to be significantly affected
so requests, the Member State in whose territory
the plan or programme is being prepared shall, before
its adoption or submission to the legislative procedure,
forward a copy of the draft plan or programme and
the relevant environmental report to the other Member
State.
7.24. Article 7 provides for consultation on plans
or programmes that are likely to have significant
effects in other Member States. On this issue the
Directive follows the general approach taken by
the UN ECE Convention on Environmental Impact Assessment
in a Transboundary Context (Espoo Convention).
7.25. Member States will need to ensure they have
provisions in place which allow them to identify
whether plans or programmes are indeed likely to
have transboundary effects.
Article 7(2)
Where a Member State is sent a copy of a draft
plan or programme and an environmental report under
paragraph 1, it shall indicate to the other Member
State whether it wishes to enter into consultations
before the adoption of the plan or programme or
its submission to the legislative procedure and,
if it so indicates, the Member States concerned
shall enter into consultations concerning the likely
transboundary environmental effects of implementing
the plan or programme and the measures envisaged
to reduce or eliminate such effects.
Where such consultations take place, the Member
States concerned shall agree on detailed arrangements
to ensure that the authorities referred to in Article
6(3) and the public referred to in Article 6(4)
in the Member State likely to be significantly affected
are informed and given an opportunity to forward
their opinion within a reasonable time-frame.
7.26. Once the transboundary mechanism is triggered,
the Member States involved have to agree on more
detailed arrangements to ensure the necessary consultation
of the public and environmental authorities in the
Member State affected. Bilateral agreements that
have been established in the framework of the Espoo
Convention may, suitably modified to cover plans
and programmes, provide a pattern for these arrangements.
Multilateral arrangements may be established where
appropriate.
Article 7(3)
Where Member States are required under this
Article to enter into consultations, they shall
agree, at the beginning of such consultations, on
a reasonable timeframe for the duration of the consultations.
7.27. The Directive requires that reasonable
time frames are to be provided for consultation
in transboundary situations. Compared with non-transboundary
situations, these will need to be sufficient for
contact to be established between the States concerned,
the identification and consultation of the public
and environmental authorities in the affected State,
and consideration of the resulting comments by the
appropriate authorities in the State of origin.
Practical matters such as the need to prepare translations
may also lengthen the process.
7.28. The Directive allows for ad hoc arrangements
to be established for transboundary issues. These
could differ in each case. This can be helpful when
the affected Member State wishes to designate different
authorities or different parts of the public for
different plans or programmes to enter into the
consultation.
7.29. Alternatively it would be possible to agree
upon a general framework for bilateral consultation,
leaving the detailed arrangements to case-specific
situations. When different regions in an affected
Member State are involved, this may be a practical
solution.
Article 8
The environmental report prepared pursuant
to Article 5, the opinions expressed pursuant to
Article 6 and the results of any transboundary consultations
entered into pursuant to Article 7 shall be taken
into account during the preparation of the plan
or programme and before its adoption or submission
to the legislative procedure.
7.30 The obligations in Article 8 of the Directive
reflect the iterative nature of the process of environmental
assessment as applied to plans and programmes. They
also reflect the obligation in Article 7 of the
Aarhus Convention which, in conjunction with Article
6(8) of that Convention, requires that in decisions
on plans and programmes due account is taken of
the outcome of the public participation. The requirement
to make information on this available is set out
in Article 9 of the Directive (see below).
Article 9(1)
Member States shall ensure that, when a plan
or programme is adopted, the authorities referred
to in Article 6(3), the public and any Member State
consulted under Article 7 are informed and the following
items are made available to those so informed:
(a) the plan or programme as adopted;
(b) a statement summarising how environmental
considerations have been integrated into the plan
or programme and how the environmental report prepared
pursuant to Article 5, the opinions expressed pursuant
to Article 6 and the results of [transboundary]
consultations entered into pursuant to Article 7
have been taken into account in accordance with
Article 8 and the reasons for choosing the plan
or programme as adopted, in the light of the other
reasonable alternatives dealt with, and
(c) the measures decided concerning monitoring
in accordance with Article
Article 9(2)
The detailed arrangements concerning the information
referred to in paragraph 1 shall be determined by
the Member States.
7.31. Article 9 deals with the provision of information
about the final results of the assessment procedure.
The Member States have discretion in the way they
make information available to the
public. Authorities must provide sufficient information
about the conditions under which the environmental
information is available and how it can be obtained.
The facilities for doing this include, for example,
information publications, announcements in government
publications or on government web-sites, television
or radio public service announcements, or as part
of environmental information catalogues that describe
how relevant information can be obtained. The notification
to the public is similar to that in the EIA Directive.
Member States can make use of this experience or
set up different arrangements with the same objective.
7.32. Contrary to the EIA Directive, Directive
2001/42/EC does not include provisions for confidentiality
with regard to the plan or programme or environmental
report.
Notes
[16]
Directive 2003/35/EC applies the Aarhus Convention
to certain plans and programmes not subject to the
SEA Directive.
[17]
The word 'authorities' is not used here to mean
recognized (individual) experts, such as eminent
scientists - though such individuals may be employed
by public authorities.
[18]
For an overview of types of consultation, techniques
and case studies, see also Environmental Resource
Management.
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