Guidance on the Practical Application of the Espoo Convention |
Specific issues
Dispute prevention and settlement
Long range impacts
Joint EIA
Policies, plans and programmes
Post-project analysis
Dispute
prevention and settlement
(Art. 15)
The Convention includes a framework and procedure
for dispute resolution. The first requirement is to
have negotiations between the concerned
Parties. This article refers to negotiations after
the dispute has arisen. Information exchange and negotiations
before the application of the Convention reduce the
likelihood of a dispute in a first place and are thus
worth carrying out. Dispute resolution mechanisms
can also be included in agreements based on the Convention.
Long range impacts (Art. 1.8)
The definition of transboundary
impact used in the Convention includes long-range
impacts, which means that it is mandatory to examine
the likelihood of long range impacts, as well.
The activities and the impacts
Identifying types of activities that may have long
range impacts is the first step. The main difficulty
lies in deciding when a specific activity contributes
significantly to a long range impact. For example,
industrial pollutants travelling long distances may
cause long range impacts, but the contribution of
a single activity is often very small. On the other
hand, an activity that causes impacts on migrating
animals, have transboundary long range implications.
Agreements may list specific activities to be screened
for long range impacts.
The area
When the activities have been identified, the
possible affected Parties for the impacts of these
activities should be found. The difficulties relate
to deciding on “realistic” areas of impact in order
to determine which Parties of the Convention may be
affected and thus informed of the activity. Thinking
of areas or regions as geographical entities such
as river basins, watershed, mountain regions and waterways
and identifying the mechanisms through which impacts
may occur help in dealing with the scale of impacts.
A crucial issue will be the magnitude of the impact
due to the activity relative to other “background”
effects caused by other activities.
Dealing with the complexity
When long range impacts
are in question, the setting is far more complicated
than in a two-Party transboundary assessment. For
example, there may be several affected Parties with
different languages. To keep translations at a realistic
level it is advisable to use, as appropriate, one
or several of the three official UN languages in the
notification (see also sub-section on Translation
of documents). Problems may also arise when legislative
requirements of various Parties have to be considered.
The Database on EIA in
a transboundary context, including information from legislation in different
nations, would support the practical application. Each
Party could contribute to this data source by providing
regularly updated information on their legislation
into the web, in one or several of the official UN
languages.
Joint EIA (Art.
2.1, App. VI g)
A joint EIA is a special case in applying the
Convention. In practice two situations may occur:
- joint projects with impacts on one or both
of the two Parties of origin (e.g. boundary-crossing
motorway), and
- joint projects with impacts not only on the two
Parties of origin but also on other Parties (e.g.
pipelines in a water basin)
In the first case the Parties should agree when
starting the projects, whether they are going to carry
out two separate EIA´s, (i.e. two different
procedures including the elaboration of two different
EIA documentations and notify each other), or whether
some or most of the steps will be carried out jointly.
The ways in which the steps of the EIA procedure may
be joined and the distribution of tasks among the
two Parties are manifold. In the second case Parties
will also have to cope with the problem of how the
participation of these other affected Parties may
be carried out. From the practical point of view,
it may be helpful to share the responsibilities among
the Parties, but the obligation to carry out the process
rests separately on those Parties that count themselves
as Party of origin.
To make the joint EIA
smooth, the roles of the two Parties should be specified
from the beginning for each stage of the assessment.
Parties which are expected to have joint transboundary
assessments on a regular basis, for example because
they are geographically located in such a way that
resources or pathways overlap borders, can resolve
many issues by developing bilateral
agreements on transboundary EIA.
Getting started
A joint EIA
can be initiated by holding a preparatory meeting
between the two (or several) joint Parties of origin
to prepare the notification and the procedure. At
this meeting the practical issues such as time schedules,
level of participation and steps to be taken should
be decided upon. It is worth specifying separate time
schedules for each Party to respect the national legislation.
However, informing the other Parties help to build
a flexible time schedule that suits all the Parties
and is known by all of them. One way to solve the
practical issues is to form a joint body. The body
could meet regularly throughout the process and have
a general coordination role with respect to the schedules
and other practical matters related to the process
management. Meetings may be held face to face or by
using electronic devices such as email and AV-equipment.
Notification
Notification should be sent to all the affected
Parties. At this stage, the notification may be exchanged
because of the dual roles: Party of origin and affected
Party. In addition there may be third Parties
involved, which are only affected by the activity.
The reason for cross-notification are 1) to fulfil
the requirements of the Convention, 2) to keep the
process well defined and 3) to keep it connected to
the national EIA process. The documents may be partly
the same and they should include cross-references
so that the receiver knows that the different notifications
deal with the same case.
The assessment
When the Parties interested in participating
in the joint EIA
have been identified it is rational to carry out screening,
scoping, the documentation and possibly other steps
jointly, although there may be special features of
the impacts on one side of the border that warrant
partly separate analyses. Joint bodies are likely
to be useful in ensuring e.g. coherent documentation.
If the Parties give very different weighs to the impacts,
a joint assessment is more difficult to carry out
and is likely to require extensive negotiations throughout
the assessment. In these cases a joint body consisting
of EIA authorities with general supervisory function
is highly recommendable.
After the assessment
The decisions on the activities will be made
separately by all the Parties of origin. This is due
to the national legislation and it is also supported
by the requirements of the Convention. On the other
hand, monitoring that extends over more than one Party´s
territory is useful to carry out jointly, for example
by forming a joint task force or by using some bi-
or multilateral body for dealing with the case specific
monitoring
Policies, plans and programmes
(Art.
2.7)
The Convention requires that the Parties endeavour
to apply the Convention to level of policies, plans
and programmes. Thus, it is not mandatory as such.
There is still a lack of tradition and experience.
However, the recent EC Directive on SEA 2001 (Directive
2001/42/EC 
of the European parliament and of the
Council on the assessment of the effects of certain
plans and programmes on the environment) sets requirements
for Member States of the European Union to carry out
transboundary assessments also for plans and programmes.
This requirement will cover also UNECE countries in
the future because a Protocol on Strategic Environmental
Assessment under Espoo Convention was finalized in
January 2003. The level of policies, plans and programmes
has been considered important in the context of the
Convention and thus an ad hoc working group has been
set up to develop a protocol on strategic environmental
assessment under the auspices of the Convention.
If the assessment of PPPs is included in a bi-
or multilateral
agreement it is essential to agree on the type
of PPPs that are made subject to transboundary assessements
on a reciprocal basis. For example transport is one
sector that is advisable to be included in the list.
Post-project analysis (Art.
7)
Post-project analysis is not a mandatory activity
that would be included in all transboundary EIAs.
Still, the Convention provides that the Parties shall
determine at the request of one of the Parties whether
a post-project analysis shall be carried out. In practice
both concerned Parties
may have different views whether such an analysis
is necessary. As a result of consultations on such
an issue a post-project analysis may or may not be
carried out.
If a post-project analysis is carried out as
an application of the Convention, it has to analyse,
as a minimum, both the activity as well as its potential
adverse transboundary
impacts. If the post-project analysis provides
unexpected results, the
Party of origin has to inform the affected Party
and carry out consultations concerning necessary measures.
A post-project analysis can be included in the
final decision as a requirement related to the monitoring
of the activity. Alternatively, it could be made part
of the overall plan for the transboundary assessments
from the start of the procedure. A post-project analysis
is typically based on the monitoring of the activity
and its impacts. Monitoring can also be carried out
jointly by the Parties and within the territory of
all Parties concerned. The Parties should exchange
any results gained of the monitoring. Requirements
concerning post-project analysis can be included in
agreements on transboundary EIA.