Strategic Environmental Assessment in International and European Law

A Practitioner's Guide

Simon Marsden, Simon Marsden

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136556432
• Edition: 1
• Topic: Jura
• Subtopic: Umweltrecht

Strategic environmental assessment (SEA) is a regulatory requirement for development across Europe, North America, Australasia and elsewhere, yet understanding the legal aspects is challenging. This comprehensive guide provides that understanding in a clear and straightforward way.

The introduction considers SEA and the law, explaining what SEA is, why it is needed, how it works and why it is required, as well as examining the role of the law. Part One provides an overview of international law, environmental impact assessment (EIA) and international law, including treaties, customary international law and 'soft law' relevant to SEA. It analyses the Kiev SEA Protocol and related UNECE conventions, the Espoo Convention on EIA in a Transboundary Context and the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters. It also analyses the role of SEA in conservation conventions.

Part Two considers how the European legal system works, including an overview of the current status of European law. It examines the EIA Directive and SEA Directive together with other relevant directives and regulations, such as the Habitats and Wild Birds Directives, the Water Framework Directive, the Public Participation for Plans and Programmes Directive, and the Structural Funds Regulations. Finally the volume draws conclusions about the relationship and comparisons between international and European law generally, and in regulating SEA.

CHAPTER 1

Introduction: SEA and the Law

CHAPTER OUTLINE

This introduction first explains the objectives of and rationale for the book, and to whom it is addressed. Second, the structure and content of each chapter is outlined. Third, it provides an overview of strategic environmental assessment (SEA) by summarizing national laws, defining the concept and discussing advantages, examining its decision making context and outlining key principles used in system evaluation. Fourth, it emphasizes the importance of a legal framework, explaining the role of and difference between law and legal systems so that the relationship between international, European and national law may be understood. Matters such as the rule of law, legal interpretation and enforcement are included, together with a commentary on the need for legal requirements for SEA.

OBJECTIVES OF AND RATIONALE FOR THE BOOK

The objective of this book is to provide an overview of the current status of SEA in international and European law to assist with implementation of legal requirements and consider future developments at all levels. The book is written primarily for a non-legal audience, with practitioners responsible for environmental policy making, planning and management operating within the framework of Directive 2001/42/ EC on the assessment of certain plans and programmes (the SEA Directive), and the 2003 United Nations Economic Commission for Europe (UNECE) Protocol on Strategic Environmental Assessment to the 1991 Convention on Environmental Impact Assessment in a Transboundary Context (SEA Protocol to the Espoo Convention), particularly in mind. In addition to explaining and analysing procedural and substantive law, the book is focused on explaining the context of these provisions, the underlying legal frameworks of international and European law and the relationship with each other and the national legal systems.

The transposition of the SEA Directive into the national laws of the Member States (MS) of the European Union (EU) and the ongoing ratification of the SEA Protocol by the signatories thereto, has produced the need for a greater understanding of the underlying legal frameworks, which are not always well understood despite the production of extensive guidance documentation. Wherever possible, clear explanations of the basis of international and European law are provided in plain English. The relationship between them and national law is a particular focus, providing the context for an explanation of the specific provisions analysed in detail in the following chapters.

A secondary audience for the book is environmental lawyers less familiar with the application of environmental impact assessment (EIA) and other related processes to higher levels of decision making (such as policy analysis and sustainability assessment). This audience may find some of the information in this introductory chapter useful in providing an understanding of the development of SEA and how best to conduct SEA. Environmental lawyers less familiar with international or European law, and the relationship between legal systems and the specific laws discussed, may also find much of interest in the other chapters. Synthesis and analysis of the now extensive relevant and related literatures of international and European environmental law, SEA and other areas are therefore provided for explanation and further reading, with full notes in each chapter.

STRUCTURE AND CONTENT

In addition to this introduction and a comparative concluding chapter (Chapter 12), the book is arranged into ten main chapters that are grouped into two parts. Part I first examines international law, with Chapter 2 explaining how the international legal system works as an overview for Chapters 3, 4, 5 and 6. Part II then considers European law, with Chapter 7 explaining how European law works as an overview to Chapters 8, 9, 10 and 11. Each of these chapters is summarized below.

Chapter 2 illustrates the complexities of international law from theoretical, political and legal perspectives, as well as providing an explanation of its development and structure, sources and obligations, relationship with national and supranational law, enforcement and emerging issues. Brevity and simplicity are needed to enable synthesis of a huge literature into a reasonably accessible summary. A key focus is on explaining the different types of international agreements that are commonly used (multilateral, regional and bilateral), their preparation, approval and incorporation into the domestic (and European) legal frameworks. Aside from a full explanation of treaty making, the significance of customary international law is explained as well as of the different types of ‘soft law’ that often develop into custom and treaties.

Chapter 3 considers international environmental law (IEL) with a focus on EIA. Three of the most important duties of IEL are outlined: prevention of harm, cooperation in transboundary situations and compensation for harm. Several general principles form part of these duties, such as the precautionary principle and the principle of sustainable development. These have been considered several times by international courts and tribunals, and this jurisprudence is analysed to see to what extent EIA at least may now be required as part of these principles. Treaty, custom and soft law provisions of relevance are also discussed, many of which make reference to EIA and SEA. In each case, reference is made to the duties of harm prevention, transboundary cooperation and liability. Finally, enforcement matters are analysed.

Chapter 4 analyses the role of the Espoo and Aarhus Conventions to explain the context for the SEA Protocol and better understand how treaty decision making works. Although the SEA Protocol is a stand alone legal instrument, understanding of the role of the sponsoring institution of both treaties (the UNECE) and the administrative function of the Meeting of the Parties (MOP) is provided because several of the treaty requirements also relate to the Protocol, and the Espoo MOP will also exercise powers in relation to the Protocol when it comes into force. As well as outlining key relevant procedural provisions of each treaty, implementation and compliance issues are therefore discussed.

Chapter 5 focuses on the SEA Protocol. The chapter considers the different legal obligations that attach to assessing different strategic proposals, with some focus on policies and legislative proposals, which takes the SEA Protocol’s requirements beyond those of the SEA Directive. The SEA Protocol Guidance (UNECE/REC, 2007) is considered in depth to help explain the law and examine to what extent SEA best practice is complied with. Without commenting on the detail of the SEA Directive, the historical and structural relationship between the SEA Protocol and the SEA Directive is analysed to an extent, in part because the more extensive requirements of the SEA Protocol may result in changes in the SEA Directive in the future, but also because it is a useful way of illustrating the relationship between international and European law.

Chapter 6 considers the application of SEA to the conservation conventions, in particular the 1971 Ramsar Convention on Wetlands of International Importance (Ramsar), the 1972 Paris Convention for the Protection of the World Cultural and Natural Heritage (World Heritage), the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (CMS), and the 1992 Rio de Janeiro Convention on Biological Diversity (CBD). SEA has been actively encouraged by the convention secretariats as an effective means of implementing them, and the guidance documentation produced is examined to evaluate how well this is done in accordance with SEA best practice and the effect on implementation. The chapter also provides an opportunity to consider how, if new environmental treaties are drafted in the future, SEA could be incorporated as a specific requirement.

Chapter 7 explains the structure and effect of European law, including the relationship between the European Community (EC), EU, international law, MS and EU citizens. The difference between primary law (European treaties) and secondary law (mainly regulations and directives) is explained and the jurisprudence of the European Court of Justice (ECJ) on the effect of European law is analysed, including the meaning of ‘direct effect’ and ‘indirect effect’. Enforcement matters are analysed in detail, including infraction proceedings begun by the Commission against an MS before the ECJ for failing to transpose directives into national law. Clear explanation and summary (again given the huge literature on the subject) is provided wherever possible, and topical issues are discussed.

Chapter 8 considers European environmental law, from its development to its current status. This includes an examination of the changing EC competence for environmental law making in the treaties and the policy drivers for this, such as the general principles of environmental integration and sustainable development, and the specific environmental principles of precaution, prevention and the polluter pays. Institutions of relevance are considered and the range of subject areas that have been regulated is summarized. Compliance and enforcement issues are addressed in detail with respect to the Commission and ECJ. Reference to the extensive literature on the subject is again provided with detailed analysis and citations of relevant further reading.

Chapter 9 focuses on Directive 85/337/EEC (EIA Directive, as amended by Directives 97/11/EC and 2003/35/EC) and its case law. This illustrates why the SEA Directive was needed, how it came about and likely future challenges. It also explains the relevance of Directives 90/313/EEC (Environmental Information, as amended by Directive 2003/4/EC), 2003/35/EC (Public Participation) and 2004/35/CE (Environmental Liability). The amended Environmental Information and Public Participation Directives were the means of implementing the first two ‘pillars’ of the Aarhus Convention, and a proposal for a directive on Access to Justice is intended to implement the third. The Environmental Liability Directive is a potential means of ensuring that compensation for environmental damage is provided, and addresses the third duty discussed in Chapter 3. Chapter 9 examines how effective these provisions are and how they relate to the SEA Directive; in examining directives implementing the Aarhus Convention, it also demonstrates the relationship between international and European law.

Chapter 10 analyses the SEA Directive, including its legal basis and effect, objectives, procedural provisions and transposition and implementation. Some brief background is given, with extensive further readings provided throughout. A thorough explanation of the key requirements is provided, with detailed discussion of the EU SEA Guidance documentation in particular (Reps of the MS/EC, 2003). Some selectivity is applied here to ensure this chapter does not dominate the book. While it is without doubt the most significant of any of the provisions in international and European law, it is not the purpose of this book to focus solely on the SEA Directive. Further discussion of the SEA Directive is provided in Chapters 5, 11 and 12.

Chapter 11 considers the relationship between the SEA and EIA Directives, and Directives 79/409/EEC (Wild Birds), 92/43/EEC (Habitats) and 2000/60/EC (Water Framework). Other relevant directives and regulations are also examined, including Directives 91/676/EEC (Nitrates), 2006/12/EC (Waste), 96/62/EC (Air Quality) and Regulations No 1260/1999 and No 1257/1999 (Structural Funds). The Habitats and Water Framework Directives contain provisions for the assessment of certain plans and programmes, and existing jurisprudence is analysed in detail. The chapter analyses these requirements and their relationship with the SEA and EIA Directives, and considers how well integrated each of the provisions are with one another.

Chapter 12 compares and contrasts the role of international and European law, including environmental protection generally, and in promulgating SEA law. The relationship between the legal systems is analysed, especially with regard to the role of the EC/EU as an international institution. The relationship between the respective competences of international tribunals and the ECJ is also analysed in the context of selected jurisprudence. Conclusions are drawn that European law provides a stronger basis for SEA because it is more easily enforceable; European law also provides a stronger basis to enforce international law when adopted by the EU. It also concludes that the SEA Directive and SEA Protocol are likely to continue to be the model for SEA legislation globally, at least where a number of countries share interests in common and have appropriate institutional structures and political will to take them forward. The chapter recommends, however, that as part of the SEA Directive Review, consideration is given to better integrating European environmental law in the area of environmental assessment (EA), which has become overly disparate and c...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Foreword
• Preface
• Acknowledgements
• List of Acronyms and Abbreviations
• 1 Introduction: SEA and the Law
• Part I International Law
• Part II European Law
• Appendix I: SEA Protocol
• Appendix 2: SEA Directive
• Index