Resource Manual to Support Application of the Protocol on SEA
A5. Overview of basic tools for SEA
B1. Capacity development framework for the
Chapter as printable file
Chapter A6: Policies and legislation
A6.1 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 discusses the Protocol’s article 13 on policies and legislation. The emphasis is on applying ‘principles and elements’ of the Protocol, rather than an SEA process similar to that for plans and programmes.
2. A volume on Strategic Environmental Assessment at the Policy Level – Recent progress, current status and future prospects, edited by Barry Sadler, has been prepared by the Regional Environment Center for Central and Eastern Europe, on behalf of the Czech Ministry of Environment, as additional information to the Manual.
Article 13 – Policies and Legislation
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There are further provisions relating to policies and legislation in the preamble and in article 1(b) (in ‘objective’), and article 24.4 (in ‘entry into force’).
There is no corresponding provision in the SEA Directive.
3. Article 13 requires that Parties ‘endeavour’ to ensure that environmental concerns are considered and integrated to the extent appropriate in the preparation of their proposals for policies and legislation, and that the appropriate principles and elements of the Protocol should be considered when doing so.
As far as a Party applies article 13, practical
arrangements should take into account the need for transparency in decision-making.
What are policies and legislation?
4. The Protocol does not offer a definition of ‘policies and legislation’, though policies are generally considered to be strategic
proposals at a higher or more general level than plans and programmes. The Oxford English Dictionary defines a policy as a “principle or course of action adopted or proposed as desirable, advantageous,
or expedient; [especially] one formally advocated by a government, political party, etc.” and legislation as the “enactments of a legislator or legislature”. Article 13 states that the policies and legislation subject to article 13 are those that are likely to have significant effects on the environment.
5. The Protocol provides very little information on how environmental concerns can be considered and integrated in the preparation of proposals for policies and legislation.
6. However, the potential for furthering sustainable development is substantial when environmental concerns can be considered and integrated into decision-making at these more strategic levels. And the lack of a clear process means there are opportunities for innovative and imaginative approaches to the consideration and integration of environmental concerns in the preparation of proposals for policies and legislation. Given the very different nature of individual policies and legislation, flexibility will be essential. This is therefore an exciting and challenging area of work with great potential.
7. The consideration and integration of environmental concerns will generally take different forms in the preparation of proposals for policies and those for legislation. A policy might for example undergo a form of SEA as part of the process of development, including elements such as assessment of potential environmental effects, consideration of alternatives, and public consultation. However, this approach would not usually be applicable in a legislative context, because proposals for laws are considered and debated under prescribed Parliamentary or other legislative procedures. Environmental matters may well be discussed in the course of such procedures, but any formal assessment of the type envisaged under the Protocol would normally have to take place before the proposed law is presented to the legislature. There is a parallel between this situation and the Protocol’s provisions on plans or programmes that are adopted “through a formal procedure by a parliament or government”. In these cases, SEA takes place before the finalized plan or programme is submitted to the formal procedure leading to adoption.
8. The Manual websites (including http://www.unece.org/env/sea/) provide links to information on different approaches taken by countries for both policies and legislation, as also described in the volume mentioned in paragraph 2 above .
9. This section suggests how environmental concerns might be considered and integrated in the preparation of proposals for policies and legislation, as far as a Party applies article 13 – what below is termed the ‘consideration and integration’ process.
10. The lack of a strict requirement for the SEA of policies and legislation gives the Parties the opportunity to approach the consideration and integration of the environment in policies and legislation more flexibly, undertaking pilot studies and gradually developing experience and skills. For example, Parties might choose to consider at first only those policies and legislation with the clear potential to have significant (positive or negative) environmental effects. A strict definition of the field of application and of significance criteria might be developed later.
11. However, two key features of the ‘consideration and integration’ process are apparent in the Protocol – the need to integrate (art. 1(b) and art. 1(e)) and to ensure transparency (art. 13.3). Box A6.1 below presents suggestions on how to make integration more effective and means by which transparency may be achieved. Practical methods of implementing these approaches are presented in the tools Chapter A5.
12. Other elements to be considered might be those developed in articles 4 to 12 for plans and programmes (i.e. the ‘principles and elements’ referred to in art. 13.2):
- Field of application and determination of significant effects
- Scoping and environmental report
- Public participation, consultation with environmental and health authorities, and transboundary consultations
13. However, these elements should not be considered to occur in a strict sequence. There may be much iteration, returning to earlier elements, and the elements may merge or overlap. Information gathering will inevitably be at a higher and more broad-brush level than for plans and programmes, and, similarly, any prediction and evaluation of effects will be less precise than for plans and programmes. Some existing SEA-like processes for policies and legislation discourage the production of a separate environmental report, with the findings of the SEA instead being incorporated into existing documentation that follows the policy or legislation through its development. Support documentation might be made available to the public separately.
14. Parties might also find useful the guiding principles in the guidelines on implementing the Canadian ‘Cabinet Directive on the Environmental Assessment of Policy, Plan and Programme Proposals’, set out in Table A6.1 below.
15. A consideration for those Parties that are also Parties to the Aarhus Convention is the application of Articles 7 and 8 of that Convention, as discussed in Box A6.2 below.
16. Finally, Parties might wish to set up an ‘advisory service’ or ‘help desk’ to support application of the Protocol to policies and legislation. It might be provided by, for example, the environment ministry, the prime minister’s office, the finance ministry, some other central department, or some combination of these.
Box A6.1: Suggestions on integration and transparency
Integration requires early initiation of the ‘consideration and integration’ process within the policy- or legislation-making process. The combination of the objectives of the policy or legislation with wider environmental objectives would appear an effective starting point for integration. Integration may be made more effective by:
- Starting early, before any irreversible decisions have been made
- Including a strong voice on environment within the group developing the policy or legislation
- Agreeing within the group and with decision-makers how the ‘consideration and integration’ process, including any environmental assessment, will be used
- Tailoring the ‘consideration and integration’ process to fit the policy- or legislation-making process and, in particular, its timetable
- Aiming to use the principles and elements of environmental assessment to enhance discussion of environment concerns
- Promoting transparency to provide support for the integration of environmental concerns
Transparency may be achieved by various means, including for example:
- Public information on the outcome and reasoning (i.e. why a policy or legislation has been adopted, taking environmental concerns into consideration)
- Public information at earlier stages of the policy- or legislation-making process or the ‘consideration and integration’ process, including notification that such a process is beginning or has begun
- Early consultation with environmental and health authorities on the results of an assessment of the possible environmental effects of the policy or legislation
- Early public participation, involving not only relevant NGOs, but also the wider public and other Parties to the Protocol when appropriate
Table A6.1: Guiding principles from the Canadian guidelines
| Guiding principles
|| The analysis of environmental considerations should be fully integrated into the development of a policy …. To support sound decision-making that is consistent with the principles of sustainable development, the consideration of environmental effects should begin early in the conceptual planning stages of the proposal, before irreversible decisions are made. In this way, [SEA] can support the analysis of options and identify issues that may require further consideration.
|| One of the most critical aspects of any [SEA] is the opportunity to evaluate and compare the environmental effects of alternatives in the development of a new policy …. This comparison will help identify how modifications or changes to the policy … can reduce environmental risk.
||… [Authorities] have discretion in determining how they conduct [SEAs], and are encouraged to adapt and refine analytical methodologies and tools appropriate to their circumstances.
|| Each individual [authority] is responsible for applying [SEA] to its proposed policies … as appropriate, determining how an assessment should be conducted, performing the assessment and reporting on the findings of the assessment.
| Appropriate level of analysis
|| The scope of analysis of potential environmental effects should be commensurate with the level of anticipated effects.
|| [SEA] should be part of an open and accountable decision-making process within … government. Accountability should be promoted through the involvement [i.e. participation] of affected individuals and organizations, when appropriate, and through documentation and reporting mechanisms.
| Use of existing mechanisms
|| In conducting [an SEA, authorities] should use existing mechanisms to conduct any analysis of environmental effects, involve the public if required, evaluate performance and report the results. Such mechanisms shall also be used to report statements of environmental effects.
Box A6.2: Public participation provided for in the Aarhus Convention
Article 7 (Public participation concerning plans, programmes and policies relating to the environment)
… To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.
Article 8 (Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments)
Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment.
To this end, the following steps should be taken:
(a) Time-frames sufficient for effective participation should be fixed;
(b) Draft rules should be published or otherwise made publicly available; and
(c) The public should be given the opportunity to comment, directly or through representative consultative bodies.
The result of the public participation shall be taken into account as far as possible.
Article 8 might be interpreted as an
obligation to strive to provide public participation during the preparation of legislation (etc.), while options are still open, by setting up a basic procedural framework including time limits, notification and the opportunity for commenting, and by taking the resulting comments into account as far as possible. [37b]
17. The EC has developed a number of tools for the consideration and integration of the environment into the preparation of proposals for polices and legislation, including:
18. Further references are provided in ‘Strategic Environmental Assessment at the Policy Level – Recent progress, current status and future prospects’, and on the Manual websites (including http://www.unece.org/env/sea/).
19. In addition, some countries have developed methods for the consideration and integration of health in the preparation of proposals for policies and legislation. One example is “policy appraisal and health” in the United Kingdom, which includes simple screening questions for health and well-being.[37a]
 Sadler, B. (ed.) (2005), Strategic Environmental Assessment at the Policy Level – Recent progress, current status and future prospects, prepared by the Regional Environment Center for Central and Eastern Europe, on behalf of the Czech Ministry of Environment. Available at http://www.unece.org/env/eia/documents/PolicySEA/SEA of Policies volume.pdf
 Canadian Environmental Assessment Agency (2000), Strategic Environmental Assessment: The 1999 Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals; Guidelines for Implementing the Cabinet Directive, available at http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=AD4BBBA0-1
 Echoing the discussion in Chapter A3.
 Echoing art. 7 to 11 applied to plans and programmes.
http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/ @dh/@en/documents/digitalasset/dh_4095414.pdf .
After The Implementation Guide to the Aarhus Convention, ECE/CEP/72, pages 119-122, available at http://www.unece.org/env/pp/acig.htm.
A5. Overview of basic tools for SEA
B1. Capacity development framework for the