Resource Manual to Support Application of the Protocol on SEA
Draft Final
A3. Determining whether plans and programmes
require SEA under the Protocol |
Contents |
A5. Overview of basic tools for SEA |
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Chapter as printable file
Draft Handout  |
Chapter A4: SEA of plans and programmes
A4.1 INTRODUCTION TO THE CHAPTER
The Protocol refers throughout to ‘the environment, including health’. To avoid repetition, the Manual refers only to ‘the environment’, but this should always be understood to include health. For more information on health issues, please see [Annex] [Chapter] [XX].
1. This Chapter comprises a description of the SEA elements to be integrated, as appropriate, within a plan- or programme-making process, as introduced in section A2.2:
2. For each element, legal obligations and possible practical considerations are presented.
A4.2 SCOPING AND ENVIRONMENTAL REPORT
3. This section provides an examination of scoping (art. 6) and the environmental report (art. 7) in SEA under the Protocol. The two provisions are dealt with here together but countries might chose to apply them as more distinct elements in SEA.
4. Besides providing a summary of the relevant legal obligations, this section describes alternatives and other possible practical considerations.
A4.2.1 Legal obligations
5. Scoping (art. 6) is the first element in the SEA process for plans and programmes.
Article 6 – Scoping
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The corresponding provisions in the SEA Directive are in Article 5(4). |
6. Scoping defines the information content in terms of both the topics to be considered and the depth or detail of the information to be presented on each topic. The aim of scoping is thus to assure that the environmental report is correctly focused, providing enough information on what really matters and not cluttering the report with what does not matter. ‘An excessive account of information on insignificant effects or irrelevant issues makes the report difficult to digest and might lead to important information being overlooked’ (EC Guide, para. 5.19).
7. Environmental and health authorities must be consulted during scoping (art. 6.2), and the public may be provided with opportunities to participate (art. 6.3).
8. The information to be included in the environmental report has to be relevant (art. 6.1) and in accordance with the criteria listed in article 7.2 (the SEA Directive does not include the last two criteria) – see below.
9. The second element of the SEA process is the preparation of the environmental report on a plan or programme subject to SEA (art. 7).
Article 7 – Environmental Report
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The corresponding provisions in the SEA Directive are in its Articles 2(c), 5(1), 5(2), 5(3) and 12(2).
Annex IV – Information referred to in article 7, paragraph 2
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The corresponding provisions in the SEA Directive are in its Annex I. |
10. This element includes consultation with the authorities, public participation and possibly transboundary notification and consultations, as discussed later in this Chapter.
11. The environmental report has to identify, describe and evaluate the likely significant environmental effects of implementing the plan or programme and its reasonable alternatives (art. 7.2). The resulting report will be used by the decision-makers (see section A4.6) and will describe the monitoring arrangements (section A4.7).
12. The content of the report has to reflect the outcome of the scoping (art. 6), but will be based on the list in annex IV of the Protocol (the corresponding provisions in the SEA Directive are in its Annex I) and take into account the four criteria specified (art. 7.2).
13. Finally, the environmental report must be of sufficient quality to meet the requirements of the Protocol (art. 7.3).
A4.2.2 Alternatives
14. An important feature of the environmental report is that it should deal in the same way with the draft plan or programme and its reasonable alternatives. This subsection examines the possible practical consideration of such alternatives. Other possible practical considerations are discussed in subsection 4.2.3 below.
15. The preparation of plans and programmes usually involves the consideration of the following options (see Figure A4.1):
- Specific objectives (what the Protocol refers to as the ‘main objectives’) and priorities to be pursued by the plan or programme. These options usually formulate optimal responses to development demands and suggest overall directions of desired development, e.g. development scenarios.
- Activities to be undertaken to implement the agreed objectives and priorities of the plan or programme. These options may propose different means for attainment of the objectives through different technological options (i.e. technologies, processes or modes of delivery), different locations of proposed activities, or their different timing or sequencing.
- Alternative conditions for implementation of proposed actions. These options define measures to be taken to ensure that the intended positive effects of the proposed plan or programme are maximized and that its adverse side effects are minimized (prevented, mitigated or offset). They may be defined, for example, in criteria for decision-making on proposed activities or in general terms of reference for subsequent environmental assessments of future plans, programmes or projects that are initiated by the plan or programme.
16. Not all alternatives considered within the specific plan- or programme-making process might necessarily be generated within that process. A plan or programme may for instance adopt objectives and priorities defined in higher-level plans, programmes or policies. It may also further develop options elaborated in related studies before the plan- or programme-making process (e.g. scenarios that are developed in periods between successive plans and are formally considered only in the ‘next’ planning cycle). Whether or not such situations occur, SEA has to assess effects of the whole plan or programme (i.e. its objectives, activities to attain these objectives and conditions for their implementation) thus providing insights into the environmental effects of the plan or programme in its entirety.
17. Irrespective of their origin, all these alternatives can be analyzed and mutually compared in terms of their:
- Contribution to the attainment of relevant objectives of the plan or programme
- Their specific impacts
18. SEA may provide operational inputs to the development of alternatives in key elements of the plan- or programme-making process where alternatives are discussed, that is:
- Clarifying the context and objectives of the plan or programme
- Elaborating alternative scenarios for future developments
- Defining alternative ways of reaching the objectives of the plan or programme
- Comparing alternative measures to prevent, mitigate or offset negative effects
Figure A4.1: Alternative options that may be considered in plan- or programme-making
19. The Protocol treats the draft plan or programme and the alternatives the same, with the report having to cover reasonable alternatives in full. It is therefore suggested that all alternatives are treated equally – there is not one plan or programme plus a number of alternatives, but just a number of alternatives. The plan or programme might evolve thus:
1. Initial set of alternatives (which might be determined during scoping)
2. Select and revise – yielding preferred alternatives
3. Adopt – select final plan or programme
20. It is therefore recommended to begin the consideration of alternatives in scoping.
21. The EC Guide comments that the SEA Directive ‘calls for a more comprehensive assessment of [alternatives] than does the EIA Directive’ (para. 5.6). Additional guidance based on the EC Guide is presented in Box A4.1 [below].
A4.2.3 Other possible practical considerations
Responsibility for scoping and preparing the environmental report
22. The Protocol does not specify on whom falls the responsibility for preparing a draft plan or programme and this would vary according to the specific plan or programme proposal and the administrative level it addresses. Responsibility for preparing the environmental report, and the screening and scoping that precede it, ‘would in many cases be the authority or natural or legal person responsible for preparing the plan or programme’ (EC Guide, para. 5.8), but this may be determined in national legislation.
Suggested steps in scoping and preparing the environmental report
23. As noted in the EC Guide, the environmental report is an important tool for integrating environmental considerations into the preparation and adoption of plans and programmes since it ensures that their likely significant effects on the environment are identified, described, assessed and taken into account in that process. The preparation of the environmental report and the integration of the environmental considerations into the preparation of plans and programmes form an iterative process that should contribute to more sustainable solutions in decision-making (para. 5.2). The EC Guide (reflecting Article 4(1) of the Directive) thus identifies an iterative process.
24. The Protocol does not explicitly determine an iterative process nor the need for draft reports, but it is suggested that the report preparation be an iterative process, between and within steps, with opportunities to return to earlier tasks as necessary:
Step 1 Determine the scope
Step 2 Analyze the context and baseline
Step 3 Contribute to the development and comparison of alternatives
Step 4 Prepare the environmental report
Step 5 Consult |
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25. These suggested steps are elaborated in more detail below, identifying mandatory methodological and process tasks to be undertaken at some point in the SEA, so as to fulfil the obligations of the Protocol, together with extra optional tasks promoting good practice. The methodological tasks should result in the preparation and provision of information to be included in the environmental report in accordance with annex IV. The methodological and process tasks are mandatory within the SEA as a whole, and not necessarily in the step indicated. The sequencing of the tasks is a recommendation and, as noted above, the process is likely to be iterative with, for example, the scope continuing to be developed as the environmental report is prepared.
26. The steps described below indicate when public participation and consultation with the authorities might take place. The Protocol requires that both the public concerned and the authorities have the opportunity to express their opinion on the environmental report (art. 8.1 and art. 9.3), so this opportunity must be provided once the report has been finalized. However, the Protocol also requires that there be ‘early, timely and effective opportunities for public participation, when all options are open’ (art. 8.1, with a similar provision for consultation with the authorities in art. 9.3) so, in some circumstances, it may be beneficial to provide additional opportunities at earlier stages of the report preparation on a voluntary basis.
Step 1: Determination of the scope
| Methodological tasks |
Process tasks |
Extra, optional tasks |
- Describe the contents of the plan or programme (annex IV, item 1)
- Identify main objectives of the plan or programme (annex IV, item 1)
- Identify other relevant plans and programmes and explain how they interact with the plan or programme (annex IV, item 1)
- Gather information on environmental, including health, problems relevant to the plan or programme (annex IV, item 4)
- Identify environmental, including health, objectives relevant to the plan or programme (annex IV, item 5)
- Outline reasons for selecting the alternatives dealt with (annex IV, item 8)
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- Analyze how the environmental objectives relate to proposed objectives of the plan or programme
- Identify environmental and health authorities to be consulted (art. 9.1 – see also section A4.4)
- Consult authorities on information to be included in environmental report (art. 6.2 – see also section A4.4)
- Determine relevant information to be included in the environmental report (art. 7.1)
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- Identify relevant policies and explain how they interact with the plan or programme
- Identify likely effects to be assessed
- Identify concerned public to participate, including relevant NGOs (must be done by step 5) (art. 8.3 – see section A4.3)
- Provide for public participation in determining the relevant information to be included in environmental report (art. 6.3)
- Informally notify and consult affected Parties as appropriate (see section A4.5)
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27. This first step provides for scoping: the determination of the relevant information to be included in the environmental report. As noted above, scoping might be considered either as a separate element in the SEA process or as a first step in preparing the environmental report. This section presents the latter approach. In practice, scoping and report preparation are likely to be part of an iterative process.
28. Scoping might answer the following, among other, questions:
- Which geographical areas have to be covered?
- Which environmental aspects (human health, flora, fauna, biodiversity, soil, etc.) have to be examined?
- Which periods of time have to be covered?
- Which methods (of data collection, effects assessment, public participation, consultation with authorities, etc.) have to be used and to what depth or detail?
- What are the data requirements?
- Which alternatives have to be considered?
29. To be able to answer the questions above, the scoping might also need to answer the following (as reflected in the ‘step 1’ table above):
- What are the main objectives of the plan or programme?
- What environmental objectives are relevant to the plan or programme, and how do they relate to the objectives of the plan or programme?
- What other plans and programmes are relevant and how might they interact with the plan or programme?
- What environmental problems are relevant to the plan or programme?
30. Neither the Protocol nor the SEA Directive explicitly requires the elaboration of objectives, but both require relevant information on objectives established at international, national and other levels to be included in the environmental report and on how they have been taken into account in the preparation of the plan or programme (annex IV, item 5). Moreover, an assessment of how far the objectives are met by the measures under consideration is a recognized means of comparing alternatives within SEA. Two types of objective are proposed in the SEA process described in this Chapter, both of which are important:
- The main objectives of the proposed plan or programme
- Environmental objectives relevant to the plan or programme
31. The Box A4.2 and Table A4.1 below provide discussion on environmental objectives and related concepts. It may be useful to examine how these objectives interact with, and whether they are compatible with, the objectives of the plan or programme.
32. As discussed in tools Chapter A5, various techniques may be used to define objectives and to develop plan or programme ideas, involving the authorities and the public at the earliest stage of plan or programme development. The authorities might guide the information gathering on other relevant plans and programmes, the state of the environment and its likely evolution, area characteristics, problems and the stakeholders (authorities and the public).
33. In considering what other plans and programmes are relevant and how they might interact with the plan or programme, it may be useful to examine any hierarchy of plans and programmes (see Box A4.3 [below] on ‘tiering’).
34. Scoping includes consultation with the authorities (see section A4.4) and, optionally, public participation (section A4.3). Practical guidance on tools for interacting with the authorities and for public participation is provided in Chapter A5 of this Manual.
35. If significant transboundary effects appear likely, it is suggested that informal transboundary consultations might be begun during scoping so as to streamline the process (see subsection A4.5.2). There is the risk that if no such consultations take place during scoping, later consultations may identify additional issues, so requiring that this element be revisited.
36. Finally in step 1, we need to determine the relevant information to be included in the environmental report. As noted at the start of this section, the Protocol guides this determination with a list of information ( annex IV) and a series of criteria (art. 7.2), as discussed in two tables below, Table A4.2 and Table A4.3, respectively
Table A4.3: Criteria to be taken into account in determining the content of the environmental report (art. 7.2)
| Criterion |
Notes |
| Current knowledge and methods of assessment |
The assessment may be limited by our current level of understanding of the environment and of the effects of our activities on the environment. |
| Nature of plan or programme (contents and the level of detail of the plan or programme, and its stage in the decision-making process) |
For more strategic decisions with few details, a detailed analysis may be neither possible nor desirable. For example, ‘the environmental report for a national plan might not need to assess the effects of the plan on, say, every river in the country; but the environmental report underpinning a town plan would certainly be expected to address its implications for rivers or other waterbodies in or near the town’ (EC Guide, para. 5.16). |
| The interests of the public |
The public may expect the adequate and understandable assessment of certain topics that are important to the public, addressing the public’s perspectives and interests. |
| The information needs of the decision-making body |
A decision-making body is to examine the assessment, and that body may similarly require certain issues be dealt with and in a particular manner. |
37. There is no requirement in the Protocol to prepare a scoping report. However, it may be useful to record the outcome of the scoping, perhaps as a scoping report, as this would provide the outline of what is to be done when preparing the environmental report. Authorities may choose to make a scoping report publicly available as a matter of good practice, and there may anyway be a requirement to make any such report publicly available under the Aarhus Convention (or the corresponding EU Directive 2003/4/EC).
38. Scoping need not be administratively distinct from the preparation of the environmental report, there being no requirement for a scoping report or for an administrative decision on the outcome of scoping. However, the consultation with the authorities on the scope of the environmental report will always be required. It is not sufficient to integrate scoping into report preparation and to consult the authorities only once the report has been prepared.
39. The responsible authority may choose to employ an outside body (public or private) to undertake certain elements of the SEA, though not the decision-making. The scoping report might provide the basis for the terms of reference for the contract with that body. Alternatively, the scoping might also be contracted out. Examples of terms of reference include:
- The European Union’s ‘development cooperation arm’ provides Terms of Reference for SEA for Plans and Programmes[29]
- The European Union’s development cooperation arm also provides Terms of Reference for Scoping Study for SEA for Plans and Programmes [30]
40. Contracting out need not lead to a separation of SEA from the planning process, provided the SEA contractor works closely with the plan or programme makers (see Chapter A2).
41. For further advice on project management, please see the UNEP EIA Training Resource Manual (2 nd edition), Topic 12 (EIA project management).[31]
Step 2: Analysis of the context & baseline
| Methodological tasks |
Process tasks |
Extra, optional tasks |
- Gather information on current state of the environment, including health, and its likely evolution if the plan or programme not be implemented (annex IV, item 2)
- Gather information on characteristics of the environment, including health, in areas likely to be significantly affected (annex IV, item 3)
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(none) |
- As appropriate, consult authorities & provide for public participation on context, objectives & baseline
- Informally notify and consult affected Parties as appropriate (see section A4.5)
- Describe methodology for identification of authorities & public concerned
- Specify quality of the information gathered and how up to date it is
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42. The second step in the report preparation is an information gathering exercise. Guidance on the information is provided in Table A4.2 above regarding the report contents (annex IV). It will be useful to record difficulties encountered in gathering the information and the data limitations, as these will need later to be described in the environmental report.
43. There is no requirement in the Protocol that consultation and public participation occur at this early stage. The public and the authorities might help the responsible authority in assessing the information gathered so far, revising the scope as necessary and discussing objectives, but whether consultation and public participation are needed in all steps of report preparation will depend on the circumstances. Consultation and public participation are only required by the Protocol once the environmental report has been prepared (i.e. in step 5), and it may be considered unnecessary and inefficient to provide for consultation and public participation in all steps.
Step 3: Contribution to the development & comparison of alternatives
| Methodological tasks |
Process tasks |
Extra, optional tasks |
- Describe how the environmental, including health, objectives and other environmental, including health, considerations have been taken into account in preparing the plan or programme, including alternatives (annex IV, item 5)
- Assess alternatives by identifying, describing & evaluating (for methods, see Chapter A5) likely significant environmental, including health, effects* (art. 7.2 and annex IV, items 6 and 10)
- Describe assessment methodologies (annex IV, item 8)
- Propose measures to prevent, reduce or mitigate adverse environmental, including health, effects (annex IV, item 7)
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(none) |
- Propose measures to enhance environmental, including health, benefits
- Provide inputs to the development of alternatives, to maximize their contribution to environmental, including health, objectives and to take into account other environmental, including health, considerations including adverse environmental, including health, effects
- Record how alternatives developed
- As appropriate, consult authorities & provide for public participation on alternatives
- Consult affected Parties as appropriate (see section A4.5)
- Describe why methodologies selected & their limitations
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44. This third step in the report preparation is where the alternative plans or programmes will begin to take shape, with the context and baseline already having been determined and discussed with the stakeholders, as appropriate. How the alternatives are developed will need to be outlined in the report so it is important to keep records of the process. It is possible that the process will iterate through tasks in this step until the alternatives are sufficiently developed and assessed for them to be described in full in the environmental report.
45. One approach to the assessment of alternative plans or programmes (or elements within them) in this step might be to look at the objectives and to record in a matrix the compatibility of the alternatives with the objectives. More information on such an approach is presented in tools Chapter A5. If alternatives are developed, refined and reduced in number, the assessment might become more detailed and eventually comprise the identification, description and evaluation of the likely significant effects of all the reasonable alternatives that remain. There are other means of developing alternatives.
46. Difficulties encountered predicting and evaluating effects need to be recorded.
47. Strictly, measures to prevent, reduce or mitigate effects might only be proposed for the selected plan or programme, but the identification of such measures for all the reasonable alternatives will provide information on the residual effects (i.e. the effects with the measures in place) thus providing for a more informed selection of the plan or programme.
48. It is suggested that public participation and consultation might occur in this step, if appropriate, to improve the alternatives under consideration.
Step 4: Prepare the environmental report
| Methodological tasks |
Process tasks |
Extra, optional tasks |
- Propose monitoring arrangements (annex IV, item 9)
- Identify and describe any difficulties, limitations, uncertainties and risks in the assessment of alternatives, including those arising from gaps in data (annex IV, item 8)
- Summarize the information in a non-technical summary (annex IV, item 11)
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- Prepare environmental report (art. 7.1)
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- In proposing monitoring arrangements, address data gaps and data quality or quantity issues
- Revise selected alternatives and environmental report as necessary
- Record how SEA influenced development of the plan or programme & alternatives
- Record interactions between planning and SEA teams
- Propose follow-up actions, including recommendations for other plans, programmes or projects
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49. Everything should now be ready to be pulled together as the environmental report. The non-technical summary must be available now, though early versions of it might have been distributed earlier to facilitate the public participation and consultation process, as appropriate.
50. The EC guide suggests that the environmental report be a ‘coherent text or texts’ and that it might be structured on the headings used in the annex. If integrated into the plan or programme it should, however, ‘be clearly distinguishable as a separate part of the plan or programme, and be easy to find and assimilate for the public and authorities’ (EC Guide, para. 5.4). The EC Guide also identifies the possibility of integrating the report within a sustainability assessment or appraisal, which might in turn be integrated within a plan or programme (para. 5.5).
Report quality
51. The remainder of this section looks at the quality of the environmental report, which has to be sufficient for the purpose of the Protocol (art. 7.3 – and Art 12(2) of the Directive). See Box A4.4 [below] for possible practical considerations.
52. Responsibility for assuring quality will depend on the institutional arrangements in a country. The same authority that prepared the environmental report might also be responsible for assuring its quality. The body responsible for preparing guidelines might also take on a role of quality control, or an independent commission might be set up or an existing audit commission have its mandate extended.
53. In considering the quality of the environmental report, the following issues might be borne in mind:
- Sufficient quality means that there is proper application of the provisions, in content and procedure, with complete and reliable information adequate for application of the Protocol.
- The individual authority has to decide whether the report is of sufficient quality, particularly against article 7 and annex IV.
- If the report is not of sufficient quality, the report might be amended or augmented or part of the SEA repeated, depending on national SEA systems.
- If the report is not of sufficient quality, this may call into question the validity of any decision taken as a result of the SEA.
- The Protocol provides a ‘minimum standard’, but there are many options for going further, e.g. independent assessments, guidelines on procedural or substantive requirements, review by an independent institution, reliance on complaints or legal appeals.
- There are many methods to maintain quality, e.g. checklists of steps in the process. Table A4.4 [below] provides a checklist from the United Kingdom (designed as a quality assurance instrument for the whole SEA process, rather than just the environmental report)
Step 5: Consult
| Methodological tasks |
Process tasks |
Extra, optional tasks |
(none) |
- Identify concerned public to participate, including relevant NGOs (if not already done in step 1) (art. 8.3 – see section A4.3)
- Make environmental report available to authorities and the public ( art. 8.2 – see section A4.3; and art. 9.2 – see section A4.4)
- Formally notify affected Parties as appropriate (art. 10 – see section A4.5)
- Consult authorities & provide for public participation on environmental report & selected alternatives
- Consult affected Parties as appropriate
- Receive comments to be taken into due account in the decision
- Formally submit to decision-maker (art. 11 – see section A4.6)
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- Describe consultation & public participation processes
- Record who comprised ‘the public’ and ‘the public concerned’
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54. Consultation (section A4.4) and public participation (section A4.3) must occur at this stage, with the authorities and the public concerned commenting on the report and the draft plan or programme alternatives. Their comments need to be taken into account in the decision on the plan or programme, so should be recorded.
55. If likely transboundary effects have been determined, transboundary consultations must now be begun. An affected Party might also request that consultations take place. See section A4.5 below.
56. Finally, the report and the plan or programme alternatives might be amended if appropriate to take account of the comments received before being submitted to the decision-makers. How these documents influence the decision-making process is discussed in Chapter A2.
57. This section provides an examination of public participation in SEA under the Protocol (principally art. 8).
A4.3.1 Legal obligations
Article 8 – Public Participation
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There are further provisions relating to public participation in the preamble and in articles 1(c), 2.6 and 2.8 (in ‘definitions’), 3.2, 3.3, 3.6 and 3.7 (in ‘general provisions’), 5.3 and 5.4 (in ‘screening’), 6.3 (in ‘scoping’), 7.2(a) (in ‘environmental report’), 10.4 (in ‘transboundary consultations’), 11 (‘decision’) and 12.2 (in ‘monitoring’).
The main corresponding provisions in the SEA Directive are in Articles 6(1), 6(2), 6(4) and 6(5). There are further provisions relating to public participation in the preamble and in Articles 2(b) and (d), 3(7), 7(2), 8 and 9(1).
Annex V – Information referred to in article 8, paragraph 5
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There is no corresponding provision in the SEA Directive for annex V of the Protocol. |
58. Article 8 requires that there are early, timely and effective opportunities for public participation, when all options are open, in the SEA of plans and programmes (art. 8.1). The timely public availability of the draft plan or programme and the environmental report is required (art. 8.2).
59. The public concerned, including relevant non-governmental organizations (NGOs), has to be identified (art. 8.3). It is the public concerned, not the public in general, that must have the opportunity to express its opinion on the draft plan or programme and the environmental report (see section A4.2, step 4) within a reasonable time frame (art. 8.4).
60. In addition, the Protocol optionally provides for public participation in earlier stages:
61. Detailed arrangements for informing the public and consulting the public concerned have to be determined and made publicly available (art. 8.5). These arrangements have to take into account the items listed in annex V (see above). There is no equivalent to annex V in the SEA Directive.
62. The public’s rights under the Protocol may be examined in more detail under three headings:
- General rights
- Rights to information
- Rights to participate
General public rights
63. The Protocol provides a number of general rights for the public, besides rights to certain information and to consultation on the draft plan or programme and the environmental report. These are set out in article 3 and are similar to those expressed in Article 3 of the Aarhus Convention:
- Relevant assistance and guidance from officials and authorities
- Recognition of and support to relevant associations, organizations or groups (for example, NGOs)
- Exercising rights under the Protocol:
- Without being penalized, persecuted or harassed, and
- Without discrimination as to citizenship, nationality or domicile.
64. For the most part, European Community law, other than the SEA Directive, provides similar rights.
65. Article 3 also includes provisions on how Parties are to transpose the Protocol into their national legislation.
Article 3 – General Provisions
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Public rights to information
66. Rights to the following information are expressed in various provisions of the Protocol and are discussed where appropriate in this Manual:
- The conclusions of the determination of significant effects (art. 5.4) – see Chapter A3
- Detailed arrangements for informing the public and consulting the public concerned (art. 8.5) – this section
67. The detailed arrangements for informing the public and consulting the public concerned have to be determined and made publicly available. Annex V to the Protocol sets out in detail what those arrangements might cover.
Public rights to participate
68. Besides having a right to be informed, the public concerned has a right to contribute to the decision-making process by expressing its opinion on the draft plan or programme and the environmental report and to have its comments taken into account in decision-making on the plan or programme:
- Early, timely and effective opportunities must be provided for public participation, when all options are open (art. 8.1)
- There may possibly be public participation in the determination of significant effects and in scoping, but this is not mandatory (art. 5.3 and art. 6.3) – Chapter A3 and section A4.2, respectively
- The public concerned can express its opinion on the draft plan or programme and the environmental report within a reasonable time frame (art. 8.4 and art. 10.4) – section A4.2 and section A4.5 (for the public concerned in any affected Party), respectively
- The opinions of the public concerned must be taken into account in decision-making (art. 11.1) – section A4.6
A4.3.2 Possible practical considerations
69. The general rights for the public under the Protocol ( art. 3) are, as noted above, similar to those expressed in the Aarhus Convention.
70. In addition, this section examines possible practical considerations in public participation under the Protocol by asking four questions about the public:
- Who are they?
- What are their general rights under the Protocol?
- How can information be made available to them?
- How can they participate?
Who is the public?
71. Who is the public? And who is the ‘public concerned’ that must have ‘the opportunity to express its opinion on the draft plan or programme and the environmental report within a reasonable time frame’ (art. 8.4)? The term ‘the public concerned’ is not defined in the Protocol, though it is in the Aarhus Convention. Certainly, the public concerned may vary from one plan or programme to another.
72. The following possible practical considerations might be taken into account when identifying the public concerned:
- The Protocol requires that ‘the public concerned’, including relevant NGOs, is identified (not chosen).
- The Protocol’s definition of ‘the public’ is identical to that in the Aarhus Convention and the SEA Directive, but differing from the Espoo Convention by its explicit inclusion of ‘associations, organizations or groups’.
- The definition ‘refers to any natural or legal person’ (EC Guide, para. 7.5). ‘In many cases, an association, organization 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, organizations or groups without legal personality (including NGOs) may, if national legal frameworks so provide, also constitute “the public”’ (EC Guide, para. 7.6).
- The Protocol specifies that ‘the public concerned’, a term that is not defined (except that it must include relevant NGOs), has the opportunity to express its opinion on the draft plan or programme and the environmental report. The Aarhus Convention’s definition of ‘the public concerned’ is ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’ (art. 2.5). The Directive follows the Aarhus Convention definition, though without using the term ‘public concerned’. Parties might choose to employ this definition.
- The EC Guide may also be relevant: ‘The public affected or likely to be affected by, or having an interest in, the decision-making subject to this [legal instrument] can be described as a subset of the public in general. ... This provision requires [States] to identify that subset, which is given the opportunity to express its opinion on the draft plan or programme and the environmental report ... 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’ (EC Guide, para. 7.16).
- Relevant NGOs are by definition considered part of the concerned public. The EC Guide notes ‘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 [,] 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’ (EC Guide, para. 7.17).
73. It is important to consider all population groups that might be affected, either adversely or beneficially, by the plan or programme and to make efforts to involve the population groups likely to be adversely affected in public participation processes. These groups may include disadvantaged groups such as people having low incomes, the disabled, the homeless, refugees, etc.
What are the public’s general rights?
Each Party shall endeavour to ensure that officials and authorities assist and provide guidance to the public in matters covered by this Protocol (art. 3.2).
74.
Because officials are in the public service, it is reasonable to expect that they might help to activate the public’s use of these instruments, by providing information, guidance and encouragement. The phrase ‘endeavour to ensure’ may not be intended to soften the obligation but it is an acknowledgement that it is conceptually impossible for Parties to ensure that officials and authorities assist and provide guidance, because whether individual officers actually give assistance and guidance in a particular case is subjective. The phrase might be interpreted to require Parties to take firm steps towards ensuring that officials and authorities provide the assistance mentioned, i.e. Parties must provide means for assistance, opportunities for officials and authorities to provide such assistance, and must encourage officials and authorities to do so through official policies and capacity-building measures. [31a]
75. The participation of the public in SEA is vital to give SEA legitimacy and value. Many States have experienced difficulty motivating public participation in SEA, so the effort required to provide ‘information, guidance and encouragement’ should not be underestimated.
Each Party shall provide for appropriate recognition of and support to associations, organizations or groups promoting environmental, including health, protection in the context of this Protocol (art. 3.3).
76. Parties need to assure that legitimate associations, organizations or groups (e.g. NGOs) may be formed. Some States require registration of such groups etc, whereas others explicitly recognize non-registered, or ad hoc, groups. The form of the ‘support’ might vary, including direct support (e.g. grants) or indirect support (e.g. tax relief, or advantages in participation).
Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Protocol shall not be penalized, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings (art. 3.6).
77. The provision is intended to prevent penalization, apart from through the courts, or persecution or harassment against persons participating as members of the public in SEA.
Within the scope of the relevant provisions of this Protocol, the public shall be able to exercise its rights without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities (art. 3.7).
78. The provision is intended to prevent discrimination on the basis of citizenship, nationality or domicile.
How can information be made available to the public?
79. Making information available to the public may involve appropriate publicity arrangements and easy access to information, though only public availability is strictly required by the Protocol. Effective dissemination might be by public notice (e.g. in a newspaper) or individually (e.g. mail shots).
80. The Protocol explicitly suggests use of ‘electronic media’ as a means of ensuring timely public availability of documents. However, given the need to provide ‘effective’ opportunities for public participation, it might be inadequate to provide documents only via electronic media, as this may exclude important segments of the public such as the poor, isolated (e.g. rural) and elderly who might not use the Internet.
81. Dissemination methods and means of making information publicly available are described in the tools Chapter A5 of this Manual.
How can the public participate?
82. Practical methods of public participation are dealt with in detail in the tools Chapter A5 of this Manual. Below is presented some possible practical guidance on the relevant provisions of the Protocol.
83. States have to give an opportunity to certain members of the public to express their opinion on the environmental report and the draft plan or programme. One of the reasons for public participation is to contribute to the quality of the information available to those responsible for the decisions that are made concerning the plan or programme. Public participation might sometimes reveal important new information that 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 environmental report and, if the changes justified it, fresh public participation (EC Guide, para. 7.1, adapted).
84. The Protocol specifies that the opportunities for public participation be ‘when all options are open’, i.e. at a stage when reasonable alternatives may be chosen to be put forward for adoption or submission to the legislative procedure.
85. The draft plan or programme and the report are made available to the public in general, but only the opinions of the concerned public must be taken into account.
86. Time frames for public participation need to take into account the requirement to give an ‘early and effective’ opportunity for such participation (art. 8.1) and for the public concerned to have the opportunity to express its opinion ‘within a reasonable time frame’ (art. 8.4). Experiences with consultation procedures for domestic and transboundary EIA may provide guidance (EC Guide, para. 7.9), e.g. EIA time frames might be used as a guide. It is recommended that time frames are laid down in legislation and that, for any given type of plan or programme, the same time frame be allowed for comments on the environmental report and on the draft plan or programme. The SEA Directive specifies that the draft plan or programme must be accompanied by the environmental report during consultation (Art. 6(2)), whereas the Protocol does not explicitly require that the two documents be made available together.
87. Different time frames may be appropriate for different types or complexity of plan or programme but care should be taken to allow enough time for opinions to be properly developed and formulated on lengthy, complex, contentious or far-reaching plans and 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 more information may be made and the time frame for public participation may also need to take into account the time for the responsible authority to respond (EC Guide, para. 7.10, adapted).
88. It may be useful to combine public participation in SEA with public participation within the development of the plan or programme (as discussed in Chapter A2). Combining public participation in the SEA and plan- or programme-making process may enable consideration of possible suggestions for reformulation of the plan or programme within a single commenting and review process.
A4.4 CONSULTATION WITH AUTHORITIES
89. This section provides an examination of the consultation with environmental and health authorities in SEA under the Protocol (principally art. 9).
A4.4.1 Legal obligations
Article 9 – Consultation with Environmental and Health Authorities
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There are further provisions relating to consultation in articles 2.6 (in ‘definitions’), 5.2 (in ‘screening’), 6.2 (in ‘scoping’), 10.4 (in ‘transboundary consultation’), 11 (‘decision’) and 12.2 (in ‘monitoring’).
The main corresponding provisions in the SEA Directive are in Articles 6(1), 6(2), 6(3) and 6(5). There are further provisions relating to consultation in the preamble and in Articles 2(b), 3(6), 5(4), 7(2), 8 and 9(1). |
90. Article 9 requires that the environmental and health authorities have an early, timely and effective opportunity to express their opinion on the draft plan or programme and the environmental report (art. 9.3).
91. Which environmental and health authorities are to be consulted has to be determined (art. 9.1), as do detailed arrangements for informing and consulting them (art. 9.4).
92. The consultation with environmental and health authorities occurs at a number of stages in the SEA process:
- Determination of significant effects, if required while determining whether SEA is required (art. 5.2) – see section A3.2
A4.4.2 Possible practical considerations
93. In applying the legal obligations for consultations, the following suggestions may provide for effective consultations (see Box A4.5 [below] for details):
- Parties determine detailed arrangements for informing and consulting the authorities, with legislation providing a framework (art. 9.4)
- ‘Authorities’ includes formal governmental or public authorities, defined by administrative or legal requirements
- Designation may be by including them in legislation or by designating case by case, or for each plan or programme type (art. 9.1)
- Both the Protocol and the Directive require designation of the authorities to be consulted. In the interests of clarity, it may be useful to make a general determination in advance covering different types of plans and programmes; this advance determination is mandatory under the SEA Directive. It may also be useful to draft service agreements or terms of reference to clarify the responsibilities of the different institutions, including the environmental and health authorities to be consulted during the SEA.
- The most appropriate form of consultation needs to be selected for each plan or programme, or for each plan or programme type
94. There are many methods and techniques for consultation, e.g.
- Seeking written comments
- Steering groups
- Focus groups
- Advisory committees
- Interviews
- Internet-based discussions
95. Chapter A5 provides information on such tools. See also subsection A4.3.2 above, which provides possible practical guidance on how the public can participate, much of which is equally valid for the consultation with authorities.
96. This section provides an examination of the transboundary consultations in SEA under the Protocol (principally art. 10).
A4.5.1 Legal obligations
Article 10 – Transboundary Consultations
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There are further provisions relating to transboundary consultations in the preamble, in articles 2.3 and 2.4 (in ‘definitions’) and 11 (‘decision’), in annexes III, IV (item 10) and V.
inter alia means ‘among other things’
The main corresponding provisions in the SEA Directive are in Article 7. There are further provisions relating to transboundary consultation in the preamble, in Articles 2(b), 8 and 9(1) and in Annex II (item 2). |
97. Article 10 provides for transboundary consultations when a proposed plan or programme in one country (the Party of origin) is likely to have significant environmental effects on the territory of another country (the affected Party).
98. The Party of origin has to notify the affected Party if it considers that implementation of the proposed plan or programme is likely to have significant transboundary environmental effects, or if so requested by another Party likely to be significantly affected (art. 10.1). The first task is therefore to determine whether the plan or programme is likely to have significant transboundary environmental effects.
99. The SEA process presented in this Chapter does not indicate precisely when transboundary notification and consultations are to take place; the Protocol simply requires notification ‘as early as possible before the adoption of the plan or programme’ (art. 10.1).
100. The notification has to include (art. 10.2):
- The draft plan or programme
- The environmental report, including information on possible transboundary environmental effects
- Information on the decision-making procedure, including information on a time schedule for comments
101. Consultations then follow if desired and indicated by the affected Party. The consultations have to address:
- The likely transboundary environmental effects of implementing the plan or programme (art. 10.3)
- The measures envisaged to prevent, reduce or mitigate adverse effects (art. 10.3)
- Detailed arrangements (art. 10.4) for informing the public concerned and authorities in the affected Party, and for giving them the opportunity to forward their opinion on:
- the draft plan or programme
- the environmental report
102. The opinions of the public concerned and the environmental and health authorities in the affected Party have to be taken into due account, and they have to be informed of how their comments were taken into account (art. 11).
A4.5.2 Possible practical arrangements
103. At the latest, transboundary effects might be identified during preparation of the environmental report, but if identified earlier then notification would best be begun earlier as well, during scoping; doing so may reduce delays in reaching the decision-making. However, such early notification would necessarily be informal, as the formal notification has to include, amongst other things, the environmental report. The following paragraphs provide additional suggestions on transboundary consultations, adapted from the EC Guide ( para. 7.25-7.29).
104. The Protocol requires that reasonable time frames be provided for consultation in transboundary situations. Compared with non-transboundary situations, these will need to be enough for contact to be made between the Parties concerned, the identification of and consultation with the public and environmental and health authorities in the affected Party, and consideration of the resulting comments by the appropriate authorities in the Party of origin. Practical matters such as the need to prepare translations may also lengthen the process.
105. Once the transboundary mechanism is triggered, the concerned Parties have to agree on more detailed arrangements to ensure the necessary consultation with the public concerned and the environmental and health authorities in the affected Party.
106. Transboundary (notification and) consultations may be arranged purely on an ad hoc basis. However, with EIA in a transboundary context (under the Espoo Convention) it has been found that the process can be accelerated and simplified through developing bilateral or multilateral agreements that provide a framework for transboundary consultations, specifying parameters including: contact points, a joint body, language considerations including translation arrangements, assigning costs, criteria of effect significance, public participation arrangements and dispute settlement procedures. The Espoo Convention’s Guidelines on good practice and bilateral and multilateral agreements provide advice on these matters. Bilateral and multilateral agreements that have been set up in the framework of the Espoo Convention may, suitably modified to cover plans and programmes, provide a pattern for these arrangements.
107. Finally, the Espoo Convention’s Guidance on public participation in EIA in a transboundary context may also be useful in this regard.
A4.6 DECISION
108 This section provides an examination of the decision in SEA under the Protocol (art. 11).
A4.6.1 Legal obligations
Article 11 – Decision
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The corresponding provisions in the SEA Directive are in Articles 8 and 9. |
109. The decision-maker decides which, if any, of the alternative plans or programmes, or alternative elements within a plan or programme, to adopt (art. 11). And in adopting a plan or programme, the decision-maker must take into account the conclusions of the environmental report including the necessary measures to prevent, reduce or mitigate the adverse effects of the various plan or programme alternatives. The decision-maker must also take into account (art. 11.1) opinions expressed by:
- The relevant environmental and health authorities
- The public concerned
- Any affected Parties
110. Following adoption of a plan or programme, the relevant environmental and health authorities, the public (not just the public concerned) and any affected Parties must be informed of that decision (art. 11.2). The adopted plan or programme must be made available to them together with a statement:
- Summarizing how the environmental considerations (as presented in the environmental report) have been integrated into the adopted plan or programme
- Summarizing how their opinions (as expressed by ‘the public concerned’ in the case of the public) have been taken into account
- Summarizing the reasons why the plan or programme has been adopted in the light of the reasonable alternatives considered
- For EU Member States, describing the monitoring measures decided upon ( Art. 9(1)(c) of the SEA Directive)
A4.6.2 Possible practical considerations
111. In adopting a plan or programme, the decision-maker might wish to take into account, in particular:
- The compatibility with the plan or programme objectives and environmental objectives
- The residual environmental effects
112. The informing of the public and the information in the statement are compatible with the Aarhus Convention. No provision is made for confidentiality. As suggested by the EC Guide, ‘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 websites, television or radio public service announcements, or as part of environmental information catalogues that describe how relevant information can be obtained’ (para 7.31).
113. As noted earlier, some elements of the SEA process may be integrated within a plan- or programme-making process. So, ideally, various analyses performed within SEA should inform the entire plan- or programme-making process. The draft plan or programme might therefore explain how the SEA has influenced the plan- or programme-making process.
A4.7 MONITORING
114. This final section provides an examination of monitoring in SEA under the Protocol (art. 12).
A4.7.1 Legal obligations
Article 12 – Monitoring
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inter alia means ‘among other things’
The corresponding provision in the SEA Directive is in Article 10. |
115. Article 12 provides for the monitoring of the significant environmental effects of the implementation of the adopted plan or programme. The Protocol requires that monitoring results be made available to the relevant environmental and health authorities and to the public (art. 12.2). The only explicit reason given for monitoring is to identify, among other things, unforeseen adverse effects and to enable remedial action to be taken (art. 12.1).
A4.7.2 Possible practical considerations
116. Monitoring has benefits other than those mentioned above and therefore monitoring might be used to:
- Compare predicted and actual effects, thus providing information on the implementation of the plan or programme
- Provide experience to help improve future SEAs (i.e. as a quality control tool)
- Check that environmental conditions imposed by the authorities are being complied with
- Check that the plan or programme is implemented as described, including the prescribed measures to prevent, reduce or mitigate adverse effects
117. The Protocol does not suggest the who, what, where, when or how of monitoring – who is to undertake it, who is to make results available, what to monitor (except, in general terms, the significant environmental effects of the plan or programme), what to make available (raw results or analyses thereof), where to monitor, what frequency and for how long, when to make results available, and how to monitor (methods) and to make results available. Parties might wish to exploit existing monitoring and information access arrangements or to strengthen them specifically for SEA.
118. The nature of monitoring will vary between different types of plans and programmes. A regularly revised land-use plan might require monitoring of whether the predicted environmental effects were realized, as a means of improving the next version of the plan. However, it is often difficult to establish a cause-effect relationship at the plan and programme level. The results of monitoring might be made available at the start of the next plan-revision cycle. A transport infrastructure programme might be more focused on dealing with unexpected adverse effects of its implementation, taking immediate action through modifying the programme or its individual projects. The duration of monitoring for the latter example might be significantly longer than the former, and the making publicly available of monitoring results might be through a programme-specific website, for example.
119. Based on the EC Guide (para. 8.4) it is suggested that methods chosen should be those that are both available and suited to testing whether the assumptions and predictions made in the environmental assessment correspond with the environmental effects that occur when the plan or programme is implemented; a key consideration is also the ability of the methods to provide early warning of unforeseen adverse effects of the plan or programme so that timely remedial action can be taken. It is also suggested that the nature of the environmental information (i.e. the detail and whether it is quantitative or qualitative) necessary for monitoring depends on the corresponding character and detail of the plan or programme and its predicted environmental effects.
120. Though the requirement is to identify unforeseen adverse effects, the monitoring can be based on the relevant significant environmental effects as identified in the environmental report. The meaning of ‘unforeseen’ might therefore refer to the unforeseen magnitude or intensity of a foreseen effect, such as greater than expected changes in sulphur dioxide emissions arising from an energy sector plan. It would also be possible to include elements in the monitoring programme that might identify truly unforeseen effects. For example, occasional sampling of a broad range of environmental parameters might identify a change in a parameter that was not expected to be affected by the plan or programme.
121. The EC Guide suggests that ‘implementation means not only the realization of the projects envisaged in the plan or programme (including both their construction and operation) but also covers other activities (such as behavioural measures or management schemes) which form part of the plan or programme (or its implementation)’ (para. 8.9).
122. The Protocol does not discuss what remedial action might be taken if an unforeseen adverse effect is observed. If it is decided to modify the plan or programme as a result, this may require a further SEA, if the requirements of articles 2 and 4 are met.
123. Finally, the significant effects to be monitored might include transboundary effects. The post-project analysis provision of the Espoo Convention (Art. 7) might provide inspiration for how to monitor such effects. There is no requirement to share with the affected Party the results of any monitoring, but they should be in the public domain and the affected Party’s assistance might well be required in setting up monitoring in its territory.
124. The tools Chapter A5 provides practical guidance on monitoring. The EC Guide provides more guidance on monitoring in its section 8 and appendix I. Also see the European Union Network for the Implementation and Enforcement of Environment Law (IMPEL). IMPEL PROJECT: Implementation of Article 10 of the EA Directive 2001/42/EC, available at http://ec.europa.eu/environment/eia/pdf/impel_final_report.pdf .
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Notes
[29] Available within the Environmental Integration theme at http://ec.europa.eu/development/Policies/Crosscutting_en.cfm.
[30] Ibid.
[31] Available at http://www.unep.ch/etu/publications/EIAMan_2edition_toc.htm
[31a]
After The Implementation Guide to the Aarhus Convention, ECE/CEP/72, page 43, available at http://www.unece.org/env/pp/acig.htm.
A3. Determining whether plans and programmes
require SEA under the Protocol |
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A5. Overview of basic tools for SEA |