Assessing Environmental Impacts-

A Global Review of Legislation

Assessing Environmental Impacts-
A Global Review of Legislation
© United Nations Environment Programme, 2018
Assessing Environmental Impacts- A Global Review of Legislation
ISBN No: 978-92-807-3679-3
Job No: DEL/2144/NA
Produced by UN Environment Law Division and UN Environment World
Conservation Monitoring Centre.
Director of Publication: Elizabeth Maruma Mrema

Project Manager/Coordinators: Arnold Kreilhuber (UNEP/DELC) and Jeremy Harrison

UN Environment World Convservation Monitoring Centre

Disclaimer
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Citation
UN Environment (2018). Assessing Environmental Impacts- A Global Review of
Legislation, Nairobi, Kenya.

UN Environment
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Acknowledgements

The report was drafted and edited by Katharina Rogalla von Bieberstein, Daniela Guarás,
Sarah Ivory, Catherine Ayres, Lara Ognibene, Lisa Ingwall-King, Sharon Brooks, Shena
Garcia Rangel, Sarah Morris and Arnold Kreilhuber, with additional support from Corinne
Martin, Andreas Obrecht, Ruth Fletcher, Annelisa Grigg, Val Kapos, Ihab Tarek, Alberto
Pacheco, Makiko Yashiro, Andrew David Raine, Raphaelle Vignol, Sefania Nawadra, Maria
Morgado, Liam Cawthorne, Ssali Kitooke and Robert Wabunoha.

UN Environment acknowledges the contributions made by many individuals/institutions

to the preparation of the report. Contributors and reviewers include (in alphabetical
order): Alyona Rydannykh, Amy Frankel, Ariuntuya Dorjsuren, Balraj K. Sidhu, Bharat
Desai, Bobbi Schijf, Carl Bruch, Christian Prip, Clark Peteru, Daniah Turjman, Dong
Zhan Feng, Easter Galuvao, Elsa Sattout, Enkhbat Altangerel, Guy Jules Kounga, Isabel
Felandro-Llanos, Jope Davetanivalu, Jorge Cabrera, Jorge Vinuales, Liz Marie Brenes, Luigi
Iovane De Puy, Mads Christensen, Melanie Bradley, Mostafa Fouda, Muhammed Tawfiq
Ladan, Neil Craik, Norma Jibe Tor, Pablo Guillermo Peña Alegria, Prayekti Murharjati,
Prudence Galega, Reedly Alfred Tari, Rene Brown, Robert Kibugi, Secretariat of the Pacific
Regional Environment Programme, Shanshan Wang, Teona Karchava, Vadim Ni and
Wahid Mohammed Al-Shuely.

For questions or comments on the report, please contact:

Elizabeth Maruma Mrema

Director
Law Division
United Nations Environment Programme
P.O. Box 30552, 00100 Nairobi, Kenya (Official)
Tel: +254 20 762 4749
Fax: +254 20 762 4249
Email: [email protected]

Acknowledgements iii
 Table of Contents

Executive Summary (English).......................................................................................... vi

Executive Summary (Chinese).......................................................................................... ix
Executive Summary (French)........................................................................................... xi
Executive Summary (Russian)........................................................................................ xiv
Executive Summary (Spanish)......................................................................................xviii
Executive Summary (Arabic).......................................................................................... xxi
Chapter 1. Introduction and Objectives........................................................................... 1
1.1 Aim and target audience.................................................................................... 1
1.2 Approach taken................................................................................................... 1
1.3 Structure of the stocktaking................................................................................ 2
1.4 What are EIAs and SEAs?.................................................................................... 2
1.5 What is the role of national legislation?............................................................. 6
Chapter 2. The global and regional policy context......................................................... 10
2.1 Global developments......................................................................................... 10
2.2 The role of international and regional financial institutions.......................... 14
2.3 Regional developments..................................................................................... 17
Chapter 3. EIA systems – Legal and institutional frameworks for EIAs....................... 21
3.1 EIA arrangements............................................................................................... 21
3.1.1 Triggering EIAs......................................................................................... 21
3.1.2 Institutional set-up................................................................................... 23
3.2 The different steps of the EIA process.............................................................. 31
3.2.1 Screening................................................................................................... 31
3.2.2 Scoping and impact analysis.................................................................... 41
3.2.3 Public participation.................................................................................. 50
3.2.4 Review and (final) decision-making....................................................... 65
3.2.5 Follow-up and adaptive management..................................................... 72
3.3 Emerging trends................................................................................................ 80
Chapter 4. SEA systems – Legal and institutional frameworks for SEAs...................... 84
4.1 SEA arrangements............................................................................................. 84
4.1.1 Triggering SEAs........................................................................................ 84
4.1.2 SEAs and other planning processes......................................................... 85
4.1.3 Institutional set-up (and the link to EIAs).............................................. 86

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 4.2 The different steps of the SEA process............................................................. 92
4.2.1 Screening................................................................................................... 93
4.2.2 Scoping and impact analysis.................................................................... 95
4.2.3 Public participation................................................................................ 100
4.2.4 Review and (final) decision-making..................................................... 104
4.2.5 Follow-up and adaptive management................................................... 107
4.3 Emerging trends................................................................................................ 110
Chapter 5. Key findings and Concluding Remarks....................................................... 113
List of references............................................................................................................ 116
Annex: Useful resources................................................................................................. 124
Figures
Figure 1: EIA process flowchart....................................................................................... 32
Figure 2: SEA process flowchart....................................................................................... 93

Table of Contents v
 Executive Summary

Environmental Impact Assessments (EIAs) are the most commonly known, used, and
globally widespread, environmental planning and management tools, with Strategic
Environmental Assessments (SEAs) also gaining increasing momentum over the last
decade. The objective of these tools is to make sure that all critical information to predict
future impact on the environment is supplied and considered in the decision-making
process. While EIAs assess planned physical developments, SEAs target the strategic
planning level, such as government plans, programmes or policies. Both aim to avoid the
implementation of any activity or strategic planning document with significant negative
impacts on the environment, as well as an enhancement of positive impacts.

The future development and implementation of EIAs/SEAs will be crucial in advancing

environmentally friendly development. Thus, both EIAs and SEAs are of high relevance for
delivering the 2030 Agenda for Sustainable Development and related policy frameworks
such as the Strategic Plan for Biodiversity. The ability of countries and communities to
achieve sustainable development depends in no small measure on robust and effective
EIA/SEA legislation and implementation as a major catalyst for overcoming current
implementation gaps and achieving better environmental outcomes.

This report provides an overview of the current status of national legislation and
institutional arrangements of relevance to EIAs and SEAs across the globe, as well as
emerging issues and trends. It does this primarily through providing examples from a
wide selection of countries of their EIA/SEA arrangements and in relation to the different
steps of the EIA/SEA processes. These steps include: (1) Screening; (2) Scoping and Impact
Analysis; (3) Review of the EIA/SEA report; (4) Decision-making; (5) Follow-up and Adaptive
Management and (6) Public Participation as a cross-cutting issue.

It is hoped that this report and the many examples, experiences and practices contained in
it will support legal practitioners and policy makers in making well-informed decisions
when drafting, implementing or aiming to improve their laws and policies related to EIAs
and SEAs.

The report, and in particular the section on public participation in EIAs/SEAs, is also
of relevance to civil society, including the general public. It can for example be used as a
resource for NGOs to better understand the concept of EIAs and SEAs and the benefits
that can be derived in terms of preserving the environment and the broader sustainable
development agenda. Further, it is hoped that readers will generally feel empowered to
have their voices heard in EIA or SEA processes in their countries and thus make use of
the available mechanism for public participation at different stages of the EIA and SEA
process.

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Key findings and trends
1. There is generally a broad spread of EIA legal requirements globally, with a number
of countries recently strengthening their regulatory frameworks. However, in some
other countries there has been a worrying trend towards weakening the EIA process.
2. Despite some promising developments in different parts of the world, uptake and
in particular implementation of SEA legal requirements has been slow in many
countries. Prevailing shortcomings are mostly linked to the fact that legal approaches
are often rooted in the logic of EIA systems, not taking into account the particularities
of strategic planning processes, or that provisions are lacking legal force.
3. Public participation requirements for EIAs are being expanded in some countries,
although mostly limited to the scoping and review stage. Further, the required level
of participation varies considerably, as well as interpretations of who “the public”
is. Only a limited number of countries’ national EIA legislation includes specific
provisions related to the participation of indigenous peoples.
4. Despite growing recognition of SEAs as a tool to strengthen democratic control,
little guidance is provided in many countries’ SEA legislation regarding public
participation, including access to information.
5. Many national EIA laws leave high levels of discretion to implementing agencies.
While in some cases this can provide important flexibility to apply the regulations
to different circumstances, it can also lead to uncertainty about the process, and
inconsistent application.
6. The consideration of cumulative impacts in EIAs is a legal requirement in many
countries, and the concept of ecosystem services can help in assessing these; however,
existing provisions are often criticized as not effective and there is also a need to better
measure ecosystem services. To overcome some of the limitations of EIAs regarding
the considerations of cumulative effects (and alternatives), the importance of SEAs is
increasingly recognized.
7. Linked to developments in international and regional policy agendas, more recently
adopted EIA and SEA legislation shows an increased focus on issues such as climate
change and human health, often complemented by non-binding guidelines, e.g. on
integrating climate change in SEA or biodiversity-inclusive EIA.
8. A key challenge in EIA and SEA implementation is lack of available, accessible and
fit-for purpose data, including with regard to ecosystem services and climate change
adaptation and mitigation.
9. An explicit reference to the mitigation hierarchy1 is not generally included in
national EIA (or SEA) legislation, which is widely regarded as a severe shortcoming.
Nevertheless, application of the mitigation hierarchy, including through biodiversity
offsets, is increasingly seen as good practice.
10. There are some developments towards integrating substantive guidance in EIA and
SEA legislation, for example with regard to mitigation, such as on compensation
and offsetting, and often through reference to broader government policies and
targets (e.g. no net loss or a net gain in biodiversity). By moving beyond a focus on

1 The mitigation hierarchy is the sequence of actions to anticipate and avoid impacts on biodiversity and
ecosystem services; and where avoidance is not possible, minimize; and, when impacts occur, rehabilitate or
restore; and where significant residual impacts remain, offset. (CSBI 2013)

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 procedural requirements, this can help in achieving better environmental outcomes
of EIAs and SEAs.
11 An important review criterion of the EIA/SEA reports or statements, including
Environmental Management Plans, is the capacity of the project proponent or plan,
programme or policy executing agency to implement required mitigation measures
and to avoid adverse environmental impacts.
12 There is an increased focus on follow-up and adaptive management in more recent
EIA legislation. Nevertheless, the pre-decision stage is still generally the focus,
including overemphasis of the EIA report itself, with the perception that it is an end
product, instead of a legally binding commitment.
13 Follow-up and adaptive management of SEAs face many of the same challenges
observed with regard to EIAs. Specific challenges for SEA follow-up include the
regularly long time period for a strategic planning document to materialize as well
as the difficulty to attribute environmental changes to a single strategic planning
instrument.
14 Making EIA and SEA decisions/ recommendations and permitting conditions/
implementation guidelines available to the public and relevant agencies supports
follow-up measures, including enforcement in case of non-compliance and adaptive
management.

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执行摘要

“环境影响评估”（EIA） 是人们最为熟知和常用的、且在全球应用最为广泛的
环境规划与管理工具。在过去十年里，“战略环境评估”（SEA） 工具的使用也
呈增长势头。这些工具的目标是确保在决策过程中提供并考虑预测未来对环境影
响所需的全部关键信息。“环境影响评估”所评估的是规划的实际开发，而“战
略环境评估”则针对战略规划层面，如政府计划、方案或政策。两者都旨在避免
执行任何对环境产生重大不利影响的活动或战略规划文件，同时致力于扩大积极
影响。

“环境影响评估”／“战略环境评估”的未来发展和实施对促进环境保护发展至
关重要。因此，“环境影响评估”和“战略环境评估”对于实施《2030年可持续
发展议程》和相关政策框架（如《生物多样性战略计划》）具有高度相关性。国
家和社区实现可持续发展的能力在很大程度上取决于有效、可靠的“环境影响评
估”／“战略环境评估”立法以及将其作为克服当前实施差距和取得更好环境成
果的主要催化因素来加以实施。

本报告概述了当前全球范围内有关“环境影响评估”和“战略环境评估”的国家
立法情况和制度安排的现状，以及新出现的问题和趋势。主要通过提供多个国家
的“环境影响评估”／“战略环境评估”安排范例以及有关环境影响评估”／“
战略环境评估”流程的不同步骤来实现上述目标。这些步骤包括：(1) 筛选；(2)
范围界定及影响分析；(3) 审查“环境影响评估”／“战略环境评估”报告；(4)
决策； (5) 后续行动和适应性管理；(6)作为跨领域问题的公众参与。

希望本报告及所含的多种范例、经验和实践能够帮助法律执业者和政策制定者在
起草、实施或旨在改进与“环境影响评估”和“战略环境评估”有关的法律和政
策时做出明智的决定。

本报告，尤其是有关公民参与“环境影响评估”／“战略环境评估”的部分，也
对民间团体（包括公众）相关。例如，它可用作非政府组织的一个参考资料，以
便更好地了解“环境影响评估”和“战略环境评估”的概念及其在保护环境和实
现更广泛的可持续发展议程方面可能带来的益处。此外，我们希望读者感觉自己
有权在所在国“环境影响评估”或“战略环境评估”的流程中发声，进而利用现
有机制在“环境影响评估”和“战略环境评估”流程的不同阶段实现公众参与。

主要发现和趋势
1. 环境影响评估”法律要求在全球范围内得到了普遍推广，一些国家最近加强
了其监管框架。然而，其他一些国家的“环境影响评估”进程有遭到削弱的
趋势，这令人担忧。
2. 尽管在世界一些地区的发展较为乐观，但很多国家对“战略环境评估”法律
要求的接受过程仍显缓慢，尤其是在实施方面。其主要问题大多与以下事实
有关，即：法律手段常植根于“环境影响评估”系统的逻辑，而未顾及战略
规划过程的特殊性，亦或规定缺乏法律效力。

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 3. 一些国家正加大对公众参与“环境影响评估”的要求，虽然主要限于范围界
定和审查阶段。此外，要求公众参与的程度也有很大差异，而且对“公众”
指哪些人也有不同的诠释。只有少数国家的全国性“环境影响评估”法律包
含有关土著居民参与的具体规定。
4. 尽管越来越多的人认识到“战略环境评估”是加强民主控制的一种工具，但
很多国家的“战略环境评估”法律并没有针对“公众参与”（包括获取信
息）提供指导。
5. 很多国家的“环境影响评估”法律都让执行机构拥有相当大的酌情处理权。
虽然这在某些情况下对不同场合实施规定提供灵活性，但也可能导致过程的
不确定性以及前后应用不一。
6. 考虑“环境影响评估”的累积影响是很多国家的法律要求，同时生态系统服
务的概念有助于评估这些影响；然而，现行规定经常因不奏效而受到批评，
而人们还需更好地衡量生态系统服务。为克服“环境影响评估”在考虑累积
效应（及替代方案）方面的一些局限性，人们日益认识到“战略环境评估”
的重要性。
7. 最近通过的“环境影响评估”和“战略环境评估”立法显示出人们日益关注
气候变化和人类健康等问题，这与国际和地区性政策议程的发展息息相关。
这些立法通常还辅以不具约束力的指导原则，例如将气候变化纳入“战略环
境评估”或包含生物多样性的“环境影响评估”当中。
8. “环境影响评估”和“战略环境评估”在实施过程中面临的一个关键挑战是
缺乏可用、易用和适用的数据，包括与生态系统服务、适应与减缓气候变化
有关的数据。
9. 全国性“环境影响评估”（或“战略环境评估”）立法通常均未明确提及减
缓层次结构1 ，而这受到人们的广泛诟病，认为是其严重缺点。然而，采用
减缓层次结构的做法，包括利用生物多样性补偿抵消，正日益被人们接受为
良好做法。
10. 在“环境影响评估”和“战略环境评估”立法中纳入实质性指导方面已取得
一些进展，例如就减缓措施而言，可以采用补偿和抵消措施，并且通常还会
参照范围更为广泛的政府政策和目标（例如，生物多样性方面实现无净损失
或净收益的目标）。通过对比程序性要求更高层次的关注，这有助于实现更
好的“环境影响评估”和“战略环境评估”的环保成果。
11. “环境影响评估”/“战略环境评估”报告或陈述（包括环境管理计划） 的一
个重要审查标准是项目倡议者或者规划、计划或政策执行机构执行所需的减
缓措施并避免产生不利环境影响的能力。
12 最近的“环境影响评估”立法对后续行动和适应性管理的关注越来越多；但
通常决策前阶段仍是“环境影响评估”报告本身的重点，甚至是过分重视。
人们将其视作最终产品，而不是具有法律约束力的承诺。
13. “战略环境评估”的后续行动和适应性管理面临着很多与“环境影响评估”
相同的挑战。“战略环境评估”后续行动所面临的具体挑战包括：形成战略
规划文件通常需要很长时间；将环境变化诉诸单一战略规划工具比较困难。
14. 向公众和相关机构提供“环境影响评估”和“战略环境评估”决策／建议以
及允许条件／实施指南，这可为后续措施提供支持，包括不合规情况下的执
法和适应性管理。
1
减缓层次结构指预测和避免对生物多样性和生态系统服务造成影响的行动序列；在无法避免的情况
下，将其影响降至最低；在造成影响的情况下，重建或恢复；在残余影响较大的情况下，予以补偿并
抵消。(CSBI 2013)

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Résumé

Les Études d’impact environnemental (EIE) sont les outils de planification et de

gestion de l’environnement les plus connus, utilisés et répandus à l’échelle mondiale.
Les Évaluations environnementales stratégiques (EES) ont quant à elles pris de plus
en plus d’importance ces dix dernières années. L’objectif de ces outils est de veiller à ce
que toutes les informations essentielles pour prédire l’impact futur sur l’environnement
soient transmises et prises en compte lors du processus décisionnel. Les EIE évaluent les
projets d’aménagement tandis que les EES ciblent le niveau de la planification stratégique,
comme les plans, programmes et politiques du gouvernement. Ces outils ont tous les deux
pour but d’éviter la mise en œuvre de toute activité ou tout document de planification
stratégique ayant des impacts négatifs considérables sur l’environnement, ainsi que de
renforcer les impacts positifs.

À l’avenir, l’élaboration et la mise en œuvre des EIE/EES seront cruciales pour promouvoir
un développement respectueux de l’environnement. Ainsi, ces deux outils ont un
rôle important à jouer dans la réalisation du Programme de développement durable
à l’horizon 2030 et des cadres politiques connexes comme le Plan stratégique pour la
biodiversité. La capacité des pays et des communautés à réaliser un développement durable
repose en grande partie sur l’adoption d’une législation solide et efficace en matière d’EIE/
EES, qui permettra de remédier aux lacunes actuelles dans la mise en œuvre et d’obtenir
de meilleurs résultats environnementaux.

Le présent rapport fournit un aperçu de l’état actuel de la législation nationale et des

dispositifs institutionnels relatifs aux EIE et EES dans le monde entier, ainsi que des
tendances et problèmes émergents. Pour ce faire, il utilise principalement des exemples
de dispositifs relatifs aux EIE et EES tirés d’un vaste échantillon de pays, en relation avec
les différentes étapes des processus de l’EIE et de l’EES. Ces étapes comprennent : 1) un tri
préliminaire ; 2) le cadrage et l’analyse de l’impact ; 3) l’examen du rapport d’EIE/EES ; 4) la
prise de décision ; 5) le suivi et la gestion adaptative et 6) la participation du public en tant
que question transversale.

Dans l’idée, le présent rapport et les nombreux exemples, expériences et pratiques qu’il
contient aideront les législateurs et les décideurs politiques à prendre des décisions
éclairées lors de l’élaboration, de la mise en œuvre ou de l’amélioration de leurs lois et
politiques relatives aux EIE et EES.

Son contenu, et en particulier la section sur la participation du public aux EIE/EES, revêt
aussi un intérêt pour la société civile, notamment le grand public. Par exemple, il peut
servir de ressource pour les ONG afin de mieux expliquer le concept d’EIE et d’EES et les
avantages qui peuvent en découler en matière de préservation de l’environnement et en
ce qui concerne le programme de développement durable dans son ensemble. En outre,
les lecteurs pourraient en tirer le sentiment qu’ils sont en droit de faire valoir leur opinion

xi
 pendant les processus d’EIE ou d’EES dans leur pays et ainsi utiliser les mécanismes de
participation du public existants lors des différentes étapes desdits processus.

Conclusions et tendances principales

1. De manière générale, les obligations légales en matière d’EIE gagnent du terrain
dans le monde entier, un certain nombre de pays ayant récemment renforcé leurs
cadres réglementaires. Néanmoins, dans d’autres pays, une tendance préoccupante à
l’affaiblissement du processus d’EIE a été observée.
2. Malgré des avancées prometteuses dans diverses parties du monde, l’adoption et
en particulier l’application des obligations légales en matière d’EES est lente dans
la plupart des pays. Les lacunes actuelles sont principalement liées au fait que les
approches juridiques sont souvent fondées sur la logique des systèmes d’EIE et ne
prennent pas en compte les spécificités des processus de planification stratégique, ou
que les dispositions sont dénuées de valeur juridique.
3. Les obligations de participation du public pour les EIE sont en cours d’élargissement
dans certains pays, bien que limitées pour la plupart aux étapes de cadrage et d’examen.
En outre, le niveau requis de participation varie considérablement, de même que les
interprétations quant au « public » éligible. Seul un nombre restreint de pays ont
inclus des dispositions spécifiques liées à la participation des peuples autochtones
dans leur législation nationale relative aux EIE.
4. Malgré la reconnaissance grandissante des EES en tant qu’outil de renforcement du
contrôle démocratique, la législation relative aux EES ne fournit que peu d’orientations
en ce qui concerne la participation du public, y compris l’accès aux informations,
dans de multiples pays.
5. De nombreuses lois nationales relatives aux EIE laissent un grand pouvoir
discrétionnaire aux organismes de mise en œuvre. Dans certains cas, il peut certes
en résulter une application souple des réglementations en fonction des circonstances,
mais aussi un processus incertain et une mise en œuvre incohérente.
6. La prise en compte des impacts cumulatifs dans les EIE est une obligation légale
dans de nombreux pays, et le concept de services écosystémiques peut aider à les
évaluer ; cependant, les dispositions existantes sont souvent qualifiées d’inefficaces et
il conviendrait également de mieux mesurer les services écosystémiques. Pour pallier
certaines des limites des EIE concernant la prise en compte des effets cumulatifs (et
des alternatives), l’importance des EES est de plus en plus reconnue.
7. En lien avec l’évolution des programmes politiques internationaux et régionaux,
les législations relatives aux EIE et EES adoptées plus récemment se concentrent
davantage sur des questions comme le changement climatique et la santé humaine,
et sont souvent complétées par des directives non contraignantes, p. ex. l’intégration
du changement climatique dans les EES ou les EIE prenant en compte la biodiversité.
8. L’une des difficultés principales de la mise en œuvre des EIE et des EES est le manque
de données disponibles, accessibles et adaptées à l’usage prévu, notamment en ce
qui concerne les services écosystémiques et l’adaptation au changement climatique
ainsi que l’atténuation de ses effets.

xii
9. Les législations nationales relatives aux EIE (ou aux EES) ne font généralement pas
explicitement référence à la séquence ERC1, une lacune globalement qualifiée de grave.
Néanmoins, l’application de cette séquence, notamment par le biais de la compensation
des atteintes à la biodiversité, est de plus en plus considérée comme une bonne pratique.
10. On observe quelques évolutions concernant l’intégration d’orientations concrètes
dans la législation relative aux EIE et aux EES, par exemple en ce qui concerne
l’atténuation, notamment la compensation, et qui font souvent référence à des
politiques et cibles gouvernementales plus larges (p. ex. absence de perte nette voire
gain net de biodiversité). Cette évolution, qui va plus loin que les seules obligations
procédurales, pourrait contribuer à l’amélioration des résultats environnementaux
des EIE et des EES.
11. L’un des critères d’examen importants des rapports ou déclarations d’EIE/EES, y
compris les Plans de gestion de l’environnement, est la capacité du promoteur du
projet ou de l’organisme d’exécution du plan, programme ou de la politique à mettre
en œuvre des mesures d’atténuation et à éviter les atteintes à l’environnement.
12. Les législations plus récentes relatives aux EIE sont de plus en plus axées sur le suivi
et la gestion adaptative. Néanmoins, l’étape précédant la décision reste généralement
l’élément central, l’accent étant notamment mis de manière excessive sur le rapport
d’EES même, qui est perçu comme un produit final plutôt que comme un engagement
juridiquement contraignant.
13. Le suivi et la gestion adaptative des EES rencontrent un grand nombre de difficultés
identiques à celles des EIE. Les défis spécifiques au suivi des EES comprennent le
délai généralement long nécessaire à la matérialisation du document de planification
stratégique et la difficulté à imputer des modifications de l’environnement à un
instrument de planification stratégique précis.
14. Mettre les recommandations/décisions relatives aux EIE et EES et les conditions
d’autorisation/directives de mise en œuvre à la disposition du public et des
organismes compétents est un moyen de soutenir les mesures de suivi, notamment
l’application en cas de non-respect et la gestion adaptative.

1 La séquence ERC (éviter, réduire et compenser) est une série de mesures permettant : d’anticiper et d’éviter les
impacts sur la biodiversité et les systèmes écosystémiques ; lorsque l’évitement n’est pas possible, de minimiser
l’impact ; lorsque les impacts se concrétisent, de réhabiliter ou de restaurer ; et lorsque des effets résiduels
notables persistent, de les compenser. (CBSI 2013)

xiii
 Резюме

Оценки воздействия на окружающую среду (ОВОС) являются наиболее

общеизвестными, часто используемыми и широко распространенными во всем мире
инструментами экологического планирования и управления, при этом в последнее
десятилетие все чаще проводятся стратегические экологические оценки (СЭО).
Эти инструменты призваны обеспечить предоставление и учет в процессе принятия
решений всей особо важной информации для прогнозирования будущего
воздействия на окружающую среду. В то время как ОВОС проводятся с целью
оценки планируемых физических вмешательств, например строительства объектов,
СЭО направлены на уровень стратегического планирования, например на планы,
программы или политические установки правительства. Оба вида оценок призваны
помочь избежать осуществления какой-либо деятельности или реализации какого-
либо документа стратегического планирования, оказывающих значительное
неблагоприятное воздействие на окружающую среду, а также обеспечить усиление
положительного воздействия.

Будущая разработка и реализация ОВОС/СЭО будет играть решающую роль в

обеспечении экологически безопасного развития. Таким образом, как ОВОС, так
и СЭО имеют большое значение для осуществления Повестки дня в области
устойчивого развития на период до 2030 года и связанных с ней политических
рамочных документов, таких как Стратегический план по биоразнообразию.
Способность стран и общин добиться устойчивого развития в немалой степени
зависит от обоснованности и эффективности законодательства об ОВОС/СЭО и
их реализации в качестве одного из основных факторов, способствующих более
быстрому устранению существующих пробелов в осуществлении и достижению
более благоприятных конечных природоохранных результатов.

В настоящем докладе приводится общий обзор текущего статуса национальных

законодательных актов и институциональных механизмов, имеющих значение
для проведения ОВОС и СЭО во всем мире, а также вновь возникающих вопросов
и тенденций. Это достигается преимущественно путем приведения примеров
механизмов проведения ОВОС/СЭО из опыта широкого круга стран, а также
описания различных шагов, используемых ими в процессе проведения ОВОС/СЭО. В
число этих шагов входят: (1) предварительная проверка; (2) определение масштабов
и анализ воздействия; (3) рассмотрение доклада об ОВОС/СЭО; (4) принятие решений;
(5) последующий контроль и адаптивное управление и (6) участие общественности
как вопрос, охватывающий все этапы.

Хочется надеяться, что настоящий доклад и приведенные в нем многочисленные

примеры, опыт и практические методы будут способствовать принятию
практикующими юристами и лицами, отвечающими за выработку политики,

xiv
обоснованных решений в процессе составления проектов и реализации законов
и политических установок, касающихся ОВОС и СЭО, или принятия мер по их
совершенствованию.

Настоящий доклад и, в частности, раздел, посвященный участию общественности

в ОВОС/СЭО, также имеет значение для гражданского общества, включая широкую
общественность. К примеру, его можно использовать в качестве справочного
материала для НПО, обеспечивающего более ясное понимание концепции ОВОС и
СЭО, а также тех преимуществ, которые могут быть получены в плане сохранения
окружающей среды, как и более широкой повестки дня в области устойчивого
развития. Кроме того, хочется надеяться, что читатели в целом почувствуют в себе
силы открыто высказывать свое мнение в процессе проведения ОВОС или СЭО в
их странах и таким образом использовать имеющийся механизм для обеспечения
участия общественности на различных этапах процесса проведения ОВОС и СЭО.

Основные выводы и тенденции

1. В мировом масштабе существует в целом широкий спектр правовых
требований к ОВОС, при этом в ряде стран недавно были приняты меры
по укреплению их нормативно-правовой базы. Вместе с тем, в некоторых
других странах наблюдается тревожная тенденция к ослаблению процесса
проведения ОВОС.
2. Несмотря на некоторые обнадеживающие события в различных регионах
мира, принятие и, в частности, реализация правовых требований к
СЭО во многих странах шли медленными темпами. Преобладающие
недостатки, главным образом, обусловлены тем, что правовые подходы
зачастую основываются на логике систем ОВОС, без учета особенностей
процессов стратегического планирования, или тем, что положения не
имеют юридической силы.
3. В некоторых странах расширяются требования в отношении участия
общественности в ОВОС, хотя по большей части они ограничиваются
этапом определения масштабов и рассмотрения. Кроме того, требуемый
уровень участия в значительной степени варьируется, равно как
интерпретации понятия «общественность». Лишь в ограниченном числе
стран национальное законодательство о проведении ОВОС включает
конкретные положения, касающиеся участия коренных народов.
4. Несмотря на растущее признание СЭО в качестве инструмента для
укрепления демократического контроля, в законодательстве многих стран
о проведении СЭО включен незначительный объем руководящих указаний
в отношении участия общественности, включая доступ к информации.
5. Во многих странах национальное законодательство о проведении ОВОС
предоставляет высокую степень свободы действий учреждениям-
исполнителям. В некоторых случаях это может обеспечивать важную
гибкость в применении нормативных актов в разных обстоятельствах, но
также может вызывать неопределенность в отношении процесса, а также
непоследовательное применение.

xv
 6. Учет совокупных воздействий в ОВОС является юридическим требованием
во многих странах, и для их оценки может оказаться полезным понятие
«экосистемные услуги»; вместе с тем, существующие положения зачастую
подвергаются критике как неэффективные, а кроме того существует
потребность в более точном количественном измерении экосистемных
услуг. В  целях преодоления определенной ограниченности ОВОС в том,
что касается рассмотрения совокупных последствий (и альтернатив), во все
большей степени признается важность СЭО.
7. В связи с изменениями в международных и региональных политических
повестках дня в принимаемых в последнее время законодательных актах
о порядке проведения ОВОС и СЭО повышенное внимание уделяется
таким вопросам, как изменение климата и здоровье человека. Эти
законодательные акты зачастую дополняются не имеющими обязательной
силы руководящими принципами, например, в отношении включения
вопросов изменения климата в СЭО или учета вопросов биоразнообразия
при проведении ОВОС.
8. Ключевой проблемой в ходе проведения ОВОС и СЭО является отсутствие
существующих, доступных и пригодных для использования данных,
в том числе касающихся экосистемных услуг и адаптации к изменению
климата, а также смягчения климатических изменений.
9. Прямое указание на иерархию смягчения воздействия1 обычно не
включается в национальное законодательство о проведении ОВОС (или
СЭО), что широко признается серьезным недостатком. Тем не менее,
применение иерархии смягчения воздействия, в том числе посредством
компенсации неблагоприятного воздействия на биоразнообразие, все
чаще рассматривается как надлежащая практика.
10. Имеют место определенные подвижки в направлении включения
предметных руководящих указаний в законодательство о проведении
ОВОС и СЭО, например в отношении смягчения воздействия, например
по вопросам компенсации и возмещения, и зачастую посредством ссылок
на более широкие правительственные политические установки и целевые
задачи (например, отсутствие чистой утраты или чистое увеличение
биоразнообразия). Подобный выход за рамки процедурных требований
может способствовать достижению более благоприятных конечных
природоохранных результатов ОВОС и СЭО.

1 Иерархия смягчения воздействия — это последовательность действий по предвосхищению и

предотвращению воздействий на биоразнообразие и экосистемные услуги; либо их сведению к минимуму
в случае невозможности предотвращения; либо по реабилитации или восстановлению в тех случаях,
когда воздействие происходит; либо по компенсации существенных остаточных последствий таких
воздействий. (CSBI 2013)

xvi
11. Важным критерием рассмотрения докладов или заявлений о результатах
ОВОС/СЭО, включая планы природоохранных мероприятий, является
потенциал инициатора проекта или учреждения-исполнителя плана,
программы или политики в отношении осуществления требуемых
мер по смягчению воздействия и предотвращению неблагоприятных
экологических последствий.
12. В более недавнем законодательстве о проведении ОВОС повышенное
внимание уделяется последующему контролю и адаптивному
управлению. Тем не менее, в центре внимания по-прежнему обычно
находится этап, предшествующий принятию решений, включая придание
чрезмерного значения докладу о результатах ОВОС как таковому, когда
он воспринимается как конечный продукт, а не юридически обязывающее
заявление.
13. В процессе последующего контроля и адаптивного управления
СЭО приходится сталкиваться со многими из тех же проблем, которые
возникают при проведении ОВОС. К числу конкретных проблем, связанных
с последующим контролем СЭО, относятся обычно длительный период,
необходимый для выработки документа стратегического планирования, а
также затруднения, связанные с отнесением экологических изменений к
одному документу стратегического планирования.
14. Доведение решений / рекомендаций по ОВОС и СЭО и условий выдачи
разрешений  / руководящих принципов осуществления до сведения
общественности и соответствующих ведомств обеспечивает поддержку
мер последующего контроля, включая принудительное исполнение в
случае несоблюдения требований и адаптивное управление.

xvii
 Resumen Ejecutivo

Las evaluaciones del impacto ambiental (EIA) son las herramientas de planificación y
gestión ambiental más conocidas, utilizadas y generalizadas a escala mundial. Por su parte,
las evaluaciones ambientales estratégicas (EAE) han cobrado fuerza en el último decenio.
El objetivo de estas herramientas es garantizar que los procesos de adopción de decisiones
cuenten con y utilicen toda la información necesaria para predecir futuros impactos sobre
el ambiente. Mientras que las EIA evalúan los impactos ambientales que pudieran resultar
de proyectos específicos, las EAE se centran en la esfera de la planificación estratégica,
como los planes, los programas o las políticas gubernamentales. El objetivo de ambos tipos
de evaluación consiste en evitar la aplicación de documentos de planificación estratégica
o ejecución de actividades que pudieran generar efectos negativos significativos para el
ambiente, así como potenciar los efectos positivos.

El futuro desarrollo y aplicación de las EIA y las EAE serán cruciales para impulsar un
desarrollo en armonía con al ambiente. Por consiguiente, ambas herramientas resultan
fundamentales para la aplicación de la Agenda 2030 para el Desarrollo Sostenible y de
otros marcos de políticas conexos como el Plan Estratégico para la Diversidad Biológica. La
capacidad de los países y las comunidades para alcanzar un desarrollo sostenible depende
en buena medida de la vigencia y aplicación de legislación sólida y eficaz en materia de
EIA y EAE lo que constituye un elemento catalizador clave para corregir las deficiencias
en la implementación y obtener mejores resultados ambientales.

En el presente informe se ofrece una visión general de la situación actual de la legislación

nacional y los acuerdos institucionales relativos a las EIA y las EAE en todo el mundo,
de las tendencias y los nuevos retos. En tal sentido, se presentan ejemplos de los arreglos
institucionales de EIA y EAE de una gran variedad de países, en relación con las diferentes
etapas de ambos procesos de evaluación. Estas etapas comprenden: 1) examen previo; 2)
identificación y análisis de los impactos del proyecto; 3) revisión del estudio de EIA o EAE; 4)
adopción de decisiones; 5) seguimiento y gestión adaptable; y 6) participación pública, que
constituye una cuestión transversal.

Se espera que este informe y los múltiples ejemplos, experiencias y prácticas que contiene,
ayuden a los profesionales del derecho y a los encargados de la formulación de políticas
a tomar decisiones informadas durante los procesos de redacción, aplicación o mejora de
sus leyes y políticas en materia de EIA y EAE.

El informe, y en especial la sección sobre participación pública en las EIA y EAE, también
reviste interés para la sociedad civil, incluido el público general. Se puede utilizar, por
ejemplo, como recurso para que las organizaciones no gubernamentales (ONG) ganen
un mayor entendimiento sobre el concepto de las EIA y las EAE y las ventajas que estos
procesos pueden ofrecer para la conservación del ambiente en particular y, de modo más

xviii
amplio, en pos de la agenda de desarrollo sostenible. Además, se espera que los lectores
se sientan empoderados para hacerse oír en los procesos de EIA o EAE de sus países,
haciendo como consecuencia uso del mecanismo de participación pública disponible en
las diferentes etapas de estos procesos de evaluación.

Principales conclusiones y tendencias

1. En general existe en todo el mundo una amplia variedad de requisitos legales para
las EIA. Recientemente, algunos países han reforzado sus marcos regulatorios.
No obstante, en otros países se ha observado una preocupante tendencia hacia el
debilitamiento del proceso de EIA.
2. Pese a algunos avances prometedores en diferentes partes del mundo, el proceso
de adopción y en especial de aplicación de los requisitos legales de las EAE se ha
desarrollado de modo más lento en numerosos países. Los puntos débiles más
importantes están vinculados en su mayoría con el hecho de que los enfoques
jurídicos utilizados para la EAE suelen fundamentarse en la lógica de los sistemas de
EIA, sin tomar en consideración las especificidades de los procesos de planificación
estratégica, o sin que las disposiciones existentes cuentan con la fuerza legal necesaria
para su aplicación.
3. Algunos países están ampliando los requisitos de participación pública de las EIA,
aunque se limitan sobre todo a la etapa de identificación y análisis de los impactos
del proyecto y revisión. Además, existen diferencias importantes en cuanto al nivel
de participación requerido así como con respecto a las interpretaciones de quién
compone “el público”. Sólo un número reducido de países incluye en legislación
nacional en materia de EIA disposiciones específicas relativas a la participación de los
pueblos indígenas.
4. Pese al reconocimiento creciente sobre la utilidad de las EAE como herramienta
para fortalecer el control democrático, la legislación en materia de EAE de varios
países ofrece poca orientación sobre la participación pública, incluido el acceso a la
información.
5. Gran parte de las leyes nacionales sobre las EIA conceden una elevada facultad
discrecional a los organismos de ejecución. Si bien en algunos casos esta característica
puede proporcionar una gran flexibilidad al aplicar la normativa frente a distintas
circunstancias, también puede generar incertidumbre sobre el proceso e incoherencia
en su aplicación.
6. La consideración de los impactos acumulativos en las EIA es un requisito legal en
muchos países, y el concepto de servicios de los ecosistemas puede ayudar para evaluar
dichos impactos. Sin embargo, con frecuencia surgen voces críticas en contra de las
disposiciones vigentes por su falta de eficacia, identificándose además la necesidad
de mejorar la medición de los servicios de los ecosistemas. De modo creciente, se
reconoce la importancia de las EAE para superar algunas de las limitaciones de las
EIA en torno a la consideración de los impactos acumulativos (y las alternativas).
7. En relación con la evolución de las agendas de política internacionales y regionales, la
legislación en materia de EIA y EAE aprobada más recientemente presta una mayor
atención a cuestiones como el cambio climático y la salud humana, a menudo
acompañada de directrices no vinculantes, por ejemplo, sobre la integración del

xix
 cambio climático en las EAE o sobre la consideración de la biodiversidad en los
procesos de EIA.
8. La falta de datos disponibles, accesibles y adecuados para el propósito previsto es
un reto importante para la puesta en práctica de las EIA y las EAE, incluido en lo
relativo a los servicios de los ecosistemas y la mitigación del cambio climático y la
adaptación al mismo.
9. La legislación nacional en materia de EIA (o EAE) no suele incluir ninguna referencia
explícita a la jerarquía de mitigación1, lo que se considera en general como una gran
limitación. Pese a todo, la aplicación de la jerarquía de mitigación, entre otras cosas
mediante la compensación por pérdida de biodiversidad, se considera cada vez con más
frecuencia como una buena práctica.
10. Hay algunos casos que muestran el avance hacia la integración de orientación
substantiva sobre diferentes temas en la legislación en materia de EIA y EAE, como
por ejemplo la compensación en lo que respecta a la mitigación. A menudo esto se
realiza a través de referencias a políticas y objetivos gubernamentales más amplios
(como la ausencia de pérdida neta o la ganancia neta de biodiversidad). Al ir más allá
del enfoque centrado en los requisitos procedimentales, es posible obtener mejores
resultados ambientales derivados de las EIA y las EAE.
11. La capacidad del promotor del proyecto o del organismo de ejecución del plan, el
programa o la política de que se trate para poner en marcha las medidas de mitigación
requeridas y evitar los efectos perjudiciales sobre el ambiente es un criterio importante
para la revisión de los estudios o las declaraciones de EIA y EAE, incluidos para los
planes de gestión ambiental.
12. La legislación más reciente en materia de EIA se centra en mayor medida en el
seguimiento y la gestión adaptable. Sin embargo, la etapa anterior a la adopción de
decisiones continúa acaparando más atención, lo que se hace evidente, entre otras
cosas, el hincapié excesivo que se hace en el propio estudio de EIA, al considerarse que
se trata de un producto en sí mismo, en lugar de entenderlo como un compromiso
jurídicamente vinculante.
13. El seguimiento y la gestión adaptable de las EAE enfrentan muchos de los desafíos
ya observados en las EIA. Algunos problemas específicos del seguimiento de las
EAE son el largo período que suele requerir la elaboración de un documento de
planificación estratégica y la dificultad para atribuir los cambios ambientales a un
único instrumento de planificación estratégica.
14. Poner a disposición del público y de los organismos competentes las decisiones y las
recomendaciones de las EIA y las EAE, así como las directrices para su aplicación y
las condiciones para la obtención de permisos, respalda las medidas de seguimiento,
incluidas la aplicación de la ley en caso de incumplimiento y la gestión adaptable.

1 La jerarquía de mitigación es la secuencia de medidas orientadas a anticipar y evitar los impactos sobre la
biodiversidad y los servicios de los ecosistemas; a minimizarlos, si no se pueden impedir dichos impactos; a
rehabilitar o restaurar, si se producen los impactos; y a compensar, si persisten impactos residuales importantes.
(CSBI 2013)

xx
 ‫ملخص تنفيذي‬
‫أ‬
‫والدارة البيئيــة المعروفــة شــيوعاً واســتخداماً وانتشــاراً عــى الصعيــد العالمي‪،‬‬ ‫ـ� (‪ )sAIE‬أكـ ثـر أدوات التخطيــط إ‬ ‫ئ‬
‫تُعـ ّـد عمليــات تقييــم الثــر البيـ ي‬
‫أ‬
‫م�ايــداً خــال العقــد الخـ يـر‪ .‬والغــرض مــن هــذه الدوات هــو‬ ‫أ‬ ‫السـ تـراتيجي (‪ )sAES‬الـ تـ� تكتســب زخم ـاً ت ز‬ ‫إىل جانــب عمليــات التقييــم البيـ ئ‬
‫ـ� إ‬
‫بالثــر المســتقبل عــى البيئــة ووضعهــا ف� االعتبــار ف� عمليــة اتّخــاذ الق ـرار‪ .‬و�ف‬ ‫الساســية الالزمــة للتنبــؤ ي أ‬ ‫ضمــان توفــر جميــع المعلومــات ي أ‬
‫ي‬ ‫ي‬ ‫ي‬ ‫يّ‬ ‫ي‬
‫السـ تـراتيجي مســتوى التخطيــط‬ ‫ئ‬ ‫ئ‬ ‫أ‬ ‫حـ ي ن‬
‫ـ� إ‬ ‫ـتهدف عمليــات التقييــم البيـ ي‬ ‫ـ� المســتجدات الماديــة المخططــة‪ ،‬تسـ ِ‬ ‫قيــم عمليــات تقييــم الثــر البيـ ي‬ ‫ـ� تُ ِّ‬
‫ت‬
‫لتاهمــا إىل تج ّنــب تنفيــذ أي نشــاط أو وثيقــة تخطيــط إســراتيجي يكــون‬ ‫وال�امــج أو السياســات‪ .‬وتهـ ِـدف ِك ُ‬ ‫الســراتيجي مثــل خطــط الحكومــة ب‬ ‫ت‬ ‫إ‬
‫اليجابيــة‪.‬‬ ‫آ‬
‫ـل� ملحــوظ عــى البيئــة كمــا تهدفــان إىل النهــوض بالثــار إ‬ ‫لهــا أثــر سـ ب ّي‬
‫الهميــة ف ي� تعزيــز عمليــة تنميـ ٍـة‬ ‫الثــر البيـ ئـ� وعمليــات التقييــم البيـ ئـ� السـ تـراتيجي ف� المســتقبل بالــغ أ‬ ‫ســوف يكــون تنفيــذ عمليــات تقييــم أ‬
‫ي‬ ‫ي إ‬ ‫ي‬
‫ف‬
‫الســراتيجي أهميــة فائقــة ي� إنجاز خطــة التنمية‬ ‫ت‬ ‫ئ‬ ‫ئ‬ ‫أ‬ ‫ـإن لـ ّ‬
‫ـ� إ‬ ‫ـ� وعمليــات التقييــم البيـ ي‬ ‫ـكل مــن عمليــات تقييــم الثــر البيـ ي‬ ‫ـال فـ َّ‬ ‫صديقـ ٍـة للبيئــة‪ .‬وبالتـ ي‬
‫السـ تـراتيجية للتنــوع البيولوجــي‪ .‬تعتمــد قــدرة البلــدان والمجتمعــات ف ي�‬ ‫المســتدامة لعــام ‪ 0302‬وأُ ُطـ ِـر السياســات المتصلــة بهــا مثــل الخطــة إ‬
‫ـ�‬ ‫ئ‬ ‫ئ‬ ‫أ‬ ‫ش‬
‫ـ� وعمليــات التقييــم البيـ ي‬ ‫فعــال وقــوي لعمليــات تقييــم الثــر البيـ ي‬ ‫ـع ّ‬ ‫ـدر ال يســتهان بــه عــى وجــود ت�يـ ٍ‬ ‫تحقيــق التنميــة المســتدامة بقـ ٍ‬
‫ـ� للتغ ّلــب عــى الفجــوات الحاليــة ي� التنفيــذ وتحقيــق نتائــج بيئيــة أفضــل‪.‬‬ ‫ف‬ ‫إ ت‬
‫الســراتيجي وتنفيذهــا كحافـ ٍـز رئي ي‬
‫ـ‬
‫ئ‬ ‫أ‬ ‫أ‬ ‫ن‬ ‫ش‬
‫ـ�‬ ‫ـال للت�يــع الوط ـ ي والتدابـ يـر المؤسســية ذات الهميــة لعمليــات تقييــم الثــر البيـ ي‬ ‫يو ّفــر هــذا التقريــر نظــرة عامــة عــى الوضــع الحـ ي‬
‫ـ� مــن خــال‬ ‫يّ‬ ‫ـ‬ ‫ئي‬ ‫ر‬ ‫ـكل‬ ‫ـ‬ ‫بش‬ ‫ـك‬ ‫ـ‬ ‫ذل‬ ‫ـم‬
‫ّ‬ ‫ـ‬ ‫ويت‬ ‫ـتجدة‪.‬‬ ‫ـ‬ ‫المس‬ ‫ـات‬ ‫ـ‬ ‫واالتجاه‬ ‫ـا‬ ‫ـ‬ ‫القضاي‬ ‫إىل‬ ‫ـة‬ ‫ـ‬ ‫ضاف‬ ‫بال‬
‫إ‬ ‫ـم‪،‬‬ ‫السـ تـراتيجي ف ي� أنحــاء العالـ‬ ‫ـ� إ‬ ‫ئ‬
‫وعمليــات التقييــم البيـ ي‬
‫السـ تـراتيجي وفيمــا‬ ‫ـ�‬ ‫ئ‬ ‫ـ‬ ‫البي‬ ‫ـم‬ ‫ـ‬ ‫التقيي‬ ‫‪/‬‬ ‫ـ�‬ ‫ئ‬ ‫ـ‬ ‫البي‬ ‫ـر‬
‫ـ‬ ‫ث‬ ‫أ‬
‫ال‬ ‫ـم‬ ‫ـ‬ ‫تقيي‬ ‫�‬ ‫ف‬ ‫ـذة‬ ‫ـ‬ ‫المتخ‬ ‫ـا‬ ‫ـ‬ ‫تيباته‬ ‫ر‬ ‫ت‬ ‫ـول‬‫ـ‬ ‫ح‬ ‫ـدان‬‫ـ‬ ‫البل‬ ‫ـن‬ ‫ـ‬ ‫م‬ ‫ـارة‬ ‫ـ‬ ‫ومخت‬ ‫ـعة‬ ‫ـ‬ ‫واس‬ ‫ـة‬
‫ـ‬ ‫مجموع‬ ‫تقديــم أمثلــة مــن‬
‫ي إ‬ ‫ي‬ ‫ي‬
‫السـ تـراتيجي‪ .‬وتشــمل هــذه الخطــوات‪ )1( :‬الفــرز؛ (‪)2‬‬ ‫ـ�‬ ‫ئ‬ ‫ـ‬ ‫البي‬ ‫ـم‬ ‫ـ‬ ‫‪/‬التقيي‬ ‫ئ‬
‫البي�‬ ‫ـر‬
‫ـ‬ ‫ث‬ ‫يتصــل بمختلــف الخطــوات المتعلقــة بعمليــات تقييــم أ‬
‫ال‬
‫ي إ‬ ‫أ ي‬ ‫أ‬
‫والدارة‬ ‫السـ تـراتيجي؛ (‪ )4‬اتّخــاذ القـرار؛ (‪ )5‬المتابعــة إ‬ ‫ـ� إ‬ ‫ئ‬
‫البي�‪/‬التقييــم البيـ ي‬
‫ئ‬
‫تحديــد النطــاق وتحليــل الثــر؛ (‪ )3‬مراجعــة تقريــر تقييــم الثــر ي‬
‫التكيفيــة و(‪ )6‬المشــاركة العامــة كمســألة شــاملة‪.‬‬ ‫ّ‬
‫ن‬ ‫ن‬
‫تضمنهــا‪ ،‬الدعـ َـم للممارسـ يـ� القانونيـ يـ� وصانعــي‬ ‫ت‬ ‫أ‬
‫ومــن المأمــول أن يقـ ّـدم هــذا التقريــر والمثلــة الكثـ يـرة‪ ،‬والتجــارب والممارســات الــ� ّ‬
‫البيــ�‬ ‫الثــر ئ‬ ‫السياســات ف� اتخــاذ قــرارات مســتن�ة بنحــو جيــد لــدى صياغــة وتنفيــذ قوانينهــم يوسياســاتهم المتعلقــة بعمليــات تقييــم أ‬
‫ي‬ ‫ٍ ّ‬ ‫ي‬ ‫ي‬
‫ســراتيجي أو الســعي إىل تحســينها‪.‬‬ ‫ال ت‬ ‫البيــ� إ‬ ‫وعمليــات التقييــم ئ‬
‫ي‬
‫السـ تـراتيجي‪،‬‬ ‫البي�‪/‬عمليــات التقييــم البيـ ئ‬ ‫الثــر ئ‬ ‫وبالخــص الجــزء المتع ّلــق منــه بالمشــاركة العامــة ف� عمليــات تقييــم أ‬ ‫كمــا أن للتقريــر‪ ،‬أ‬
‫ـ� إ‬ ‫ي‬ ‫ي‬ ‫ي‬ ‫ّ‬
‫ـد�‪ ،‬بمــا ي� ذلــك الجمهــور العــام‪ .‬وقــد يُســتخدم عــى ســبيل المثــال كمصــدر للمنظمــات غـ يـر الحكوميــة‬ ‫ف‬ ‫ن‬
‫أهميتــه بالنســبة إىل المجتمــع المـ ي‬
‫ـ� يمكــن الحصــول عليهــا مــن‬ ‫ت‬ ‫الثــر البيـ ئـ� وعمليــات التقييــم البيـ ئـ� إ ت‬ ‫لتحقيــق فهــم أفضــل لمفهــوم عمليــات تقييــم أ‬
‫الســراتيجي والفوائــد الـ ي‬ ‫ي‬ ‫أ ي‬ ‫ٍ‬
‫ـ� إلســماع أصواتهــم‬ ‫ؤمــل أن يشــعر القــراء عمومـاً بالتمكـ ي ن‬ ‫بالضافــة إىل ذلــك‪ ،‬يُ َ‬ ‫ناحيــة الحفــاظ عــى البيئــة وخطــة التنميــة المســتدامة الوســع‪ .‬إ‬
‫آّ‬ ‫ف� عمليــات تقييــم أ‬
‫ـال اســتثمار الليــة المتاحــة لمشــاركة الجمهــور ف ي�‬ ‫الســراتيجي ي� بلدانهــم وبالتـ ي‬
‫ف‬ ‫الثــر البيـ ئـ� وعمليــات التقييــم البيـ ئـ� إ ت‬
‫ي‬ ‫ي‬ ‫ي‬
‫السـ تـراتيجي‪.‬‬ ‫ئ‬ ‫ئ‬ ‫أ‬
‫ـ� إ‬ ‫ـ� وعمليــة التقييــم البيـ ي‬ ‫مراحــل مختلفــة مــن عمليــة تقييــم الثــر البيـ ي‬

‫النتائج واالتجاهات أ‬
‫الساسية‬
‫ـ� عــى الصعيــد العالمــي‪ ،‬إىل جانــب عــدد مــن‬ ‫ئ‬ ‫أ‬
‫المتطلّبـ أـات القانونيــة فلتقييــم الثــر البيـ أ ي‬ ‫عامــة‪ ،‬يوجــد نطــاق واســع مــن‬ ‫بصــورة ّ‬
‫البلــدان الـ تـ� تعــزز أُطُرهــا التنظيميــة ف� آ‬
‫‪ .1‬‬
‫الونــة الخـ يـرة‪ .‬ولكــن ي� بعــض البلــدان الخــرى ُسـ ِّـج َل اتّجــا ٌه ينحــو نحــو إضعــاف عمليــة‬ ‫ي‬ ‫ّ َ‬ ‫أ ي‬
‫ـ�‪.‬‬ ‫ئ‬
‫تقييــم الثــر البيـ ي‬
‫السـ تـراتيجية‬ ‫أ‬ ‫ف‬
‫القبــال‪ ،‬وبالخــص تنفيــذ المتطلّبــات إ‬ ‫أن إ‬‫وبالرغــم مــن حصــول تطــورات واعــدة ي� مناطــق مختلفــة مــن العالــم‪ ،‬إال ّ ّ‬ ‫‪ .2‬‬
‫ف‬ ‫أ‬
‫أن المقاربــات‬ ‫السـ تـراتيجي يسـ يـر ببطــىء ي� كثـ يـر مــن البلــدان‪ .‬وترتبــط معظــم أوجــه القصــور الســائدة بحقيقــة َّ‬ ‫ـ� إ‬ ‫ئ‬
‫لتقييــم الثــر البيـ ي‬
‫ئ‬ ‫أ‬ ‫ف‬
‫الســمات الخاصــة لعمليــات التخطيــط‬ ‫البيــ�‪ ،‬دون أن تضــع ّ‬ ‫ي‬ ‫منطــق أنظمــة تقييــم الثــر‬ ‫القانونيــة عــاد ًة مــا تكــون متجــذّ رة ي� ِ‬
‫ن‬
‫القانــو�‪.‬‬ ‫ثــر‬ ‫الحــكام تفتقــر إىل أ‬
‫ال‬ ‫ســراتيجي ف� االعتبــار‪ ،‬أو أن أ‬ ‫ال ت‬
‫ي‬ ‫َّ‬ ‫ي‬ ‫إ‬
‫ف‬
‫أن ذلــك يقتــر ي� معظـ ِـم‬ ‫ئ‬ ‫أ‬ ‫ف‬ ‫ف‬ ‫ف‬
‫ـ�‪ ،‬مــع َّ‬‫التوســع ي� متطلّبــات المشــاركة العامــة ي� عمليــات تقييــم الثــر البيـ ي‬ ‫ي� بعــض البلــدان يجــري ّ‬ ‫‪ .3‬‬
‫ـإن المســتوى المطلــوب مــن المشــاركة يتفــاوت بدرجــة كبـ يـرة‪،‬‬ ‫أ‬
‫الحيــان عــى مرحلــة تحديــد النطــاق والمراجعــة‪ .‬وفض ـا ً عــن ذلــك فـ ّ‬
‫ـ� تضـ ّـم أحكامـاً‬ ‫الت�يعــات الوطنيــة الخاصــة بتقييــم أ‬
‫الثــر البيـ ئـ� الـ ت‬ ‫وكذلــك التفسـ يـرات المتعلّقــة بمــن هــو “الجمهــور”‪ .‬وتقتــر ش‬
‫ي ي‬ ‫أ‬
‫ـدود مــن البلــدان فقــط‪.‬‬ ‫محـ ّـدد ًة تتع ّلــق بمشــاركة الشــعوب الصليــة عــى عـ ٍ‬
‫ـدد محـ ٍ‬
‫أ‬
‫الت�يعــات الخاصــة‬ ‫أن ش‬ ‫السـ تـراتيجي كأداة لتعزيــز الرقابــة الديمقراطيــة‪ ،‬إال ّ ّ‬ ‫ـ� إ‬ ‫ئ‬
‫ال أق ـرار المتنامــي بعمليــات تقييــم الثــر البيـ ي‬ ‫ورغـ َـم إ‬‫ُ‬ ‫‪ .4‬‬
‫ف‬ ‫ف‬ ‫بتقييــم الثــر البيـ ئـ� إ ت‬
‫الرشــاد‪ ،‬بمــا ي� ذلــك‬ ‫ـر مــن البلــدان ال تو ّفــر ســوى القليــل مــن إ‬ ‫الســراتيجي فيمــا يتعلــق بالمشــاركة العامــة ي� كثـ ي ٍ‬ ‫ي‬
‫إتاحــة المعلومــات‪.‬‬
‫أن‬ ‫ف‬ ‫ئ‬ ‫أ‬
‫ـ� الوطنيــة الخاصــة بتقييــم الثــر البيــ� مســتوى مرتفعـاً مــن الســلطة التقديريــة للــوكاالت القائمــة بالتنفيــذ‪ .‬و� حـ ي ن‬ ‫وتـ تـرك القوانـ ي ن‬
‫ـ� ّ‬ ‫ي‬ ‫ي‬ ‫‪ .5‬‬

‫‪xxi‬‬
 ‫ـ� حــول العمليــة‪،‬‬ ‫هــذا قــد يو ّفــر مرونــةً هامــة لتطبيــق اللوائــح ف� ظــروف مختلفــة‪ ،‬إال ّ أنــه قــد يُفـض كذلــك إىل حالــة مــن عــدم اليقـ ي ن‬
‫ي‬ ‫ي‬
‫وإىل تطبيـ ٍـق غـ يـر م ّتســق لهــا‪.‬‬
‫ف‬
‫ـ� ي� االعتبــار متطلّبـاً قانونيـاً ي� كثـ يـر مــن البلــدان‪ ،‬ويمكــن لمفهــوم خدمــات‬ ‫ف‬ ‫ئ‬ ‫أ‬ ‫ت‬ ‫آ‬
‫يُعـ ّـد وضــع الثــار ال�اكميــة لعمليــات تقييــم الثــر أالبيـ ي‬ ‫‪ .6‬‬
‫أن هنــاك حاجــة أيضـاً إىل‬ ‫ف‬
‫أن الحــكام الموجــودة عــاد ًة مــا تُن َت َقـ ُـد لعــدم فعاليتهــا كمــا ّ‬ ‫اليكولوجــي المســاعدة ي� تقييمهــا؛ إال ّ ّ‬ ‫النظــام إ‬
‫ـ�‬ ‫قيــاس خدمــات النظــام اليكولوجــي بنحــو أفضــل‪ .‬وبغيــة التغلــب عــى بعــض القيــود المفروضــة عــى عمليــات تقييــم أ‬
‫الثــر البيـ ئ‬
‫ي‬ ‫ٍ‬ ‫إ‬
‫السـ تـراتيجي تحظــى باالعـ تـراف بصــورة‬ ‫ئ‬ ‫أ‬ ‫فيمــا يتعلــق باعتبــارات آ‬
‫الثــار ت‬
‫ـإن أهميــة عمليــات تقييــم الثــر البيـ ي‬
‫ـ� إ‬ ‫ال�اكميــة (والبدائــل)‪ ،‬فـ ّ‬
‫تز‬
‫م�ايــدة‪.‬‬
‫ـ�‬ ‫ئ‬ ‫أ‬ ‫ئ‬ ‫أ‬ ‫والقليميــة‪ ،‬فـ ّ ش‬ ‫ف‬
‫ـ� وتقييــم الثــر البيـ ي‬ ‫ـإن الت�يــع الخــاص بتقييــم الثــر البيـ ي‬ ‫‪ .7‬فيمــا يتصــل بالمســتجدات الحاصلــة ي� الخطــط الدوليــة إ‬
‫كمل بمبــادئ توجيهيــة غـ يـر‬ ‫ش‬
‫م�ايــداً عــى مســائل مــن قبيـ ِـل تغـ ي ّـر المنــاخ والصحــة الب�يــة‪ ،‬وعــاد ًة مــا يُسـ َت َ‬ ‫ـراً ت ز‬ ‫السـ تـراتيجي يُظهــر تركـ ي ز‬ ‫إ‬
‫أ‬ ‫ِ ُ‬
‫ـ� شــامل‪-‬للتنوع‬ ‫ئ‬ ‫ت‬ ‫ئ‬ ‫ف‬
‫الســراتيجي أو تقييــم أثــر بيـ ي‬ ‫ـ� إ‬ ‫ملزمــة‪ ،‬وعــى ســبيل المثــال بشــأن إدمــاج تغـ ي ّـر المنــاخ ي� عمليــة تقييــم الثــر البيـ ي‬ ‫ِ‬
‫البيولوجــي‪.‬‬
‫ف‬ ‫ت‬ ‫ئ‬ ‫أ‬ ‫ئ‬ ‫أ‬
‫ـ�‬‫الســراتيجي ي� انعــدام تو ّفــر وإتاحــة بيانــات تُلـ ب ّ ي‬ ‫ـ� إ‬ ‫ـ� وتقييــم الثــر البيـ ي‬ ‫التحديــات الرئيســية لتنفيــذ تقييــم الثــر البيـ ي‬ ‫‪ .8‬يتم ّثــل أحــد‬
‫الغــرض‪ ،‬بمــا ف‬
‫تغــر المنــاخ وتخفيفــه‪.‬‬ ‫والتكيــف مــع ي‬ ‫ّ‬ ‫يكولوجــي‬ ‫ال‬
‫إ‬ ‫النظــام‬ ‫بخدمــات‬ ‫ّــق‬ ‫ل‬ ‫يتع‬ ‫مــا‬ ‫ذلــك‬ ‫�‬ ‫ي‬
‫السـ تـراتيجي)‪ ،‬إشــار ًة رصيحــة إىل‬ ‫ـ�‬ ‫ئ‬ ‫ـ‬ ‫البي‬ ‫ـر‬ ‫ـ‬ ‫ث‬ ‫الثــر البيـ ئـ� (أو تقييــم أ‬
‫ال‬ ‫الت�يــع الوط ـن الخــاص بتقييــم أ‬ ‫ش‬ ‫ـن‬ ‫ـ‬ ‫يتضم‬ ‫ال‬ ‫‪ .9‬وبشــكل عــام‪،‬‬
‫ي إ‬ ‫ي‬ ‫ي‬ ‫ّ‬
‫هرميــة‬ ‫ـق‬ ‫ـ‬ ‫تطبي‬ ‫إىل‬ ‫ـر‬
‫ـ‬ ‫َ‬
‫ظ‬ ‫ن‬ ‫ي‬ ‫ـك‪،‬‬ ‫ـ‬ ‫ذل‬ ‫ـن‬ ‫ـ‬ ‫م‬ ‫ـم‬ ‫ـ‬ ‫الرغ‬ ‫ـى‬ ‫ـ‬ ‫وع‬ ‫ـاد‪.‬‬ ‫ـ‬ ‫ح‬ ‫ـور‬ ‫ـ‬ ‫قص‬ ‫ـه‬‫ـ‬ ‫كوج‬ ‫ـع‬ ‫ـ‬ ‫واس‬ ‫ـاق‬ ‫ـ‬ ‫نط‬ ‫ـى‬ ‫ـ‬ ‫ع‬ ‫ـا‬‫ـ‬ ‫إليه‬ ‫ـر‬
‫ـ‬ ‫َ‬
‫ظ‬ ‫ن‬ ‫ي‬ ‫ـ�‬ ‫ت‬ ‫ـ‬ ‫ال‬ ‫‪1‬‬ ‫ـر‬‫ـ‬ ‫ث‬ ‫هرميــة تخفيــف أ‬
‫ال‬
‫ّ‬ ‫ُ ُ‬ ‫ٍ‬ ‫ي ُ ُ‬ ‫تخفيــف أ‬
‫م�ايــدة عــى أنــه ممارســة ســليمة‪ ،‬بمــا ف ي� ذلــك مــن خــال معاوضــات التنــوع البيولوجــي‪.‬‬ ‫الثــر بصــورة ت ز‬

‫ـ�‬ ‫ئ‬ ‫أ‬ ‫ئ‬ ‫أ‬ ‫ف ش‬

‫ـ� وتقييــم الثــر البيـ ي‬ ‫‪ 01‬هنــاك بعــض التطــورات الحاصلــة تجــا َه إدمــاج توجيــه أموضوعــي ي� الت�يــع الخــاص بتقييــم الثــر البيـ ي‬
‫الشــارة‬ ‫السـ تـراتيجي‪ ،‬وعــى ســبيل المثــال فيمــا يتع ّلــق بتخفيــف الثــر‪ ،‬مــن قبيــل مــا يتصــل بالتعويــض والمعاوضــة‪ ،‬وغالبـاً مــن خــال إ‬ ‫إ‬
‫ـاف ف ي� التنــوع البيولوجــي)‪.‬‬ ‫أ‬
‫إىل سياســات الحكومــة وأهدافهــا الوســع (عــى ســبيل المثــال عــدم وجــود خســارة صافيــة أو ربــح صـ ٍ‬
‫ـإن مــن شــأن هــذا أن يســاعد ف ي� تحقيــق نتائــج بيئيــة أفضــل‬ ‫الجرائيــة‪ ،‬فـ َّ‬ ‫ـر عــى المتطلّبــات إ‬ ‫ال�كـ ي ز‬ ‫وباالنتقــال إىل مــا هــو أبعــد مــن ت‬
‫الســراتيجي‪.‬‬ ‫ت‬ ‫ئ‬ ‫أ‬ ‫ئ‬ ‫أ‬
‫ـ� إ‬ ‫ـ� وعمليــات تقييــم الثــر البيـ ي‬ ‫لعمليــات تقييــم الثــر البيـ ي‬
‫ـرح‬ ‫ت‬ ‫ف‬ ‫ئ‬ ‫أ‬
‫الدارة البيئيــة‪ ،‬هــو قـ آـدر ُة مقـ َ َ‬ ‫ـ� أو كشــوفاتها‪ ،‬بمــا ي� ذلــك خطــط إ‬ ‫إن أحــد معايـ يـر المراجعــة الهامــة لتقاريــر تقييــم الثــر البيـ ي‬ ‫ّ‬ ‫‪ .11‬‬
‫ال�نامــج أو السياســة عــى تنفيــذ تدابـ يـر التخفيــف المطلوبــة وتج ّنــب الثــار البيئيــة‬ ‫ب‬ ‫ـذ‬
‫ـ‬ ‫بتنفي‬ ‫ـة‬
‫ـ‬ ‫القائم‬ ‫ـة‬ ‫ـ‬ ‫الوكال‬ ‫ة‬
‫ُ‬ ‫ـدر‬ ‫ـ‬ ‫وق‬ ‫ـه‬ ‫ـ‬ ‫ّت‬
‫ط‬ ‫خ‬ ‫أو‬ ‫وع‬ ‫رش‬ ‫ـ‬ ‫الم‬
‫ـارة‪.‬‬
‫الضـ ّ‬
‫ـر مــا يـزال‬ ‫ال�كـ ي ز‬ ‫الخـ يـرة‪ .‬ومــع ذلــك فــإن ت‬ ‫الونــة أ‬ ‫الثــر البيـ ئـ� ف� آ‬ ‫م�ايــد عــى المتابعــة والدارة التكيفيــة ف� شت�يــع قيــاس أ‬ ‫ـر ت ز‬ ‫‪ .21‬هنالــك تركـ ي ز‬
‫ي ي‬ ‫ي‬ ‫ّ‬ ‫إ‬
‫ـ� نفســه‪ ،‬انطالقـاً مــن‬ ‫ئ‬ ‫أ‬ ‫ز‬ ‫ت‬ ‫ف‬
‫ـكل عــام عــى مرحلــة مــا قبــل اتّخــاذ القـرار‪ ،‬بمــا ي� ذلــك ال�كـ يـر المفـ ِـرط لتقريــر تقييــم الثــر البيـ ي‬ ‫نصبـاً بشـ ٍ‬ ‫ُم ّ‬
‫ال�ام ـاً قانوني ـاً ُم ِلزم ـاً‪.‬‬ ‫التصــور الــذي يــرى فيــه منتج ـاً نهائي ـاً‪ ،‬بــدال ً مــن أن يكــون ت ز‬
‫ت‬ ‫أ‬
‫لوح َظــت فيمــا ي ّتصــل‬ ‫ـ� ِ‬ ‫ـر مــن التحديــات نفســها الـ ي‬ ‫السـ تـراتيجي الكثـ ي‬ ‫ـ� إ‬ ‫ئ‬
‫التكيفيــة لعمليــات تقييــم الثــر البيـ ي‬ ‫والدارة ّ‬ ‫تواجـ ُـه المتابعــة إ‬ ‫ِ‬ ‫‪. 31‬‬
‫الــ� عــاد ًة مــا‬ ‫ت‬ ‫الطويلــة‬ ‫الزمنيــة‬ ‫ة‬
‫َ‬ ‫ت‬
‫الفــر‬ ‫ئ‬
‫البيــ�‬ ‫ثــر‬ ‫أ‬
‫ال‬ ‫تقييــم‬ ‫لمتابعــة‬ ‫دة‬ ‫المحــد‬ ‫التحديــات‬ ‫وتشــمل‬ ‫‪.‬‬ ‫الثــر ئ‬
‫البيــ�‬ ‫بعمليــات تقييــم أ‬
‫ي‬ ‫ي‬ ‫ّ‬ ‫ي‬
‫تســتغرقها بلـ َـورة وثيقــة تخطيــط إسـ تـراتيجي‪.‬‬
‫السـ تـراتيجي واشـ تـراطات الســماح‪/‬المبادئ التوجيهيــة‬ ‫ئ‬ ‫أ‬ ‫ئ‬ ‫أ‬
‫ـ� إ‬‫ـ� وتقييــم الثــر البيـ ي‬ ‫ومــن شـ فـأن وضــع قرارات‪/‬توصيــات تقييــم الثــر البيـ ي‬ ‫‪ .41‬‬
‫ف‬
‫النفــا ُذ ي� حالــة عــدم االمتثــال‬ ‫ف‬
‫للتنفيــذ ي� متنــاول الجمهــور والــوكاالت المعنيــة القائمــة بالتنفيــذ دعـ ُـم تدابـ يـر المتابعــة بمــا ي� ذلــك إ‬
‫التكيفيــة‪.‬‬
‫والدارة ّ‬ ‫إ‬

‫اليكولوجــي وتج ّنبهــا؛ وحيثمــا يتعــذّ ر‬ ‫آ‬

‫الجـراءات الم ّتخــذة للتنبــؤ بالثــار المحتملــة عــى التنــوع البيولوجــي والنظــام إ‬
‫هرميــة التخفيــف هــي سلســلة إ‬
‫‪ّ 1‬‬ ‫‪ .1‬‬
‫التأثــرات المتبقّيــة‪)3102 IBSC( .‬‬ ‫الثــار‪ ،‬إعــادة التأهيــل أو االســتعادة؛ والمعاوضــة حيثمــا ُّ‬
‫تظــل‬ ‫تجنبهــا‪ ،‬الحــد منهــا؛ و حينمــا تحــدث آ‬
‫ي‬ ‫ُّ‬ ‫ّ‬

‫‪xxii‬‬
 FISH FARM IN ECUADORIAN RAIN FOREST BY AMMIT JACK

xxiii
Chapter 1
Introduction and Objectives

1.1 Aim and target audience

of the available mechanism for public
This report provides an overview of the participation at different stages of the EIA
current status of national legislation and and SEA process.
institutional arrangements of relevance to
Environmental Impact Assessments (EIAs) Based on current trends and recent or
and Strategic Environmental Assessments ongoing reform processes, the report also
(SEAs) across the globe. It does this identifies a number of emerging issues that
primarily through providing examples are likely to shape future developments in
from a wide selection of countries of their EIA and SEA legal systems.
EIA/SEA arrangements and in relation
to the different steps of the EIA/SEA 1.2 Approach taken
processes. The report is based on a comprehensive
literature review as well as exchanges with
It is intended to support legal practitioners a number of EIA and SEA legal experts
and policy makers in making well- and practitioners. The government
informed decisions when drafting and representatives, researchers and academics,
implementing laws and policies related representatives of regional organizations,
to EIAs and SEAs. This will be achieved as well as legal practitioners from across
through expanding their knowledge base the world were involved from the very
with respect to recent developments and beginning in order to agree upon the
trends in the field of EIA and SEA law and structure of the report. Further, input was
policy. provided during the drafting process, in
particular regarding individual countries
The report, and in particular the section and regions, and comprehensively on the
on public participation in EIAs/SEAs, is draft report.
also of relevance to civil society, including
the general public. It can for example be The selection of the different national
used as a resources for NGOs to better legal approaches and measures presented
understand the concept of EIAs and in the report were guided by the following
SEAs and the benefits that can be derived criteria:
in terms of preserving the environment
and the broader sustainable development • Regional balance of countries;
agenda. Further, it is hoped that readers • Balance of countries within the
will generally feel empowered to have region, e.g. in terms of the size and
their voices heard in EIA or SEA processes level of development;
in their countries and thus make use

Introduction and Objectives 1

 1.4 What are EIAs and SEAs?
• Mix between an illustration of rather
common legal approaches as well Environmental Impact Assessments
as rather unique approaches due to (EIAs) are the most commonly
either the individual circumstances known, used, and globally widespread,
in the country, or the intention to environmental planning and management
address a specific challenge; tools. They are the only environmental
• Recent reform of the EIA or SEA legal policy tools that are required by most
framework; and countries around the world and whose
• Availability of in-country reviewers. results are regularly publicly acknowledged
and available [1]. Common definitions of
1.3 Structure of the stocktaking EIA include:
Chapter 1 presents a general overview of
the EIA and SEA legal and institutional The formal structure for carrying out
framework including defining EIAs and the assessment of the environmental
SEAs, and the role of national legislation. implications of projects and its integration
with the project cycle [2].
Chapter 2 provides the global and regional
policy context for national EIA and SEA The process of identifying, predicting,
systems. This includes an overview of evaluating and mitigating the biophysical,
the development of global and regional social, and other relevant effects of
Multilateral Environmental Agreements development proposals prior to major
(MEAs) related to EIAs/SEAs and other decisions being taken and commitments
relevant global and regional policy made [3].
developments. The chapter also includes
information on the role of financial Formally, EIAs/SEAs are structured
institutions and standard-setting bodies approaches for obtaining and evaluating
relating to EIAs/SEAs, including the environmental information prior to its use
interaction of regulations with national in decision-making in development processes
policies and legislation. [1].

Chapters 3 and 4 present an overview of Key characteristics of this regulatory

national legal and institutional frameworks technique, which defined the tool when
for EIAs and SEAs respectively. This first introduced in the 1970s, are that EIAs:
includes an overview of a number of
different countries in relation to their • Are aimed at preventing harm to the
institutional arrangements for EIA and environment, but often also take into
SEA systems, and in relation to each of account related social considerations
the different steps of the EIA process (see • Are administrative processes
Figure 1. General EIA process flowchart, consisting of several steps
adapted from (United Nations Environment • Start in the planning phase and thus
Programme 2002). prior to an activity taking place
• Predict impacts of an activity on the
Chapter 5, the conclusion and outlook, environment and provide evidence to
provides a summary of the recent determine trade-offs between policy
developments and emerging trends. goals

2
• Are aimed at comprehensively to make determinations as to whether a
informing decision-making on particular project is in the “public interest”
whether a specific activity should go and public participation has a crucial role
ahead, or not, and if so, how it should to play in making such determinations
be undertaken [6]. Nevertheless, few EIA statutes actually
require a “public interest” justification.
The essential idea is that a formal
process will ensure that a comprehensive Environmental impacts do not only
environmental assessment is undertaken include negative impacts. Not only should
in a systematic manner, leading to a well- positive impacts of a project be taken
informed decision regarding the proposed into account in the assessment, but ideally
activity. However, importantly this does not the assessment should also be aimed at
necessarily mean a decision that prioritizes enhancing positive benefits through project
environmental considerations over others, design and implementation. Consequently,
such as economic considerations. In other EIAs have also been termed a “proactive
words, the tool does not primarily aim at management tool with technical input”
compliance with a specific environmental [1,7].
standard, but at making sure that all
critical information to predict the future The common distinction between
impact on the environment is supplied and EIAs and Strategic Environmental
considered in the decision-making process. Assessments (SEA) is the level of decision-
As a result, the quality of information making and thus the kind of activities that
sourced and the related decision-making are being assessed. In the case of EIAs,
process are of key importance for the physical developments, and in the case of
effectiveness of the tool [4,5]. SEAs, the adoption of a plan, programme
or policy by the government. However,
In order to ensure that key issues are this terminology is not used consistently
taken into account in the assessment across countries. An EIA process might
and subsequent decision-making, a for example also be applicable to plans
key element of an EIA process is the and policies, and a separate term may be
involvement of different stakeholders – introduced for a specific group of SEAs,
within government, as well as independent for example Plan Environmental Impact
technical experts, non-governmental Assessment (PEIA)2.
organizations, affected communities and
the general public. Through this feature, Since physical developments regularly
EIAs broaden the information base for happen after broader policy or planning
decision-making and can also fulfil other decisions have taken place, there is often
objectives, such as leveraging the support a direct link between application of SEAs
of the community and even providing a and individual EIAs for projects that arise
sense of ownership and thus responsibility from implementation of the policy or plan.
in relation to a specific development. As a
result, EIAs are sometimes referred to as
2 The Law of the People’s Republic of China on
democratic environmental policy tools. Environmental Impact Assessments, adopted at the
Furthermore, the goal of environmental 30th Meeting of the Standing Committee of the 9th
National People’s Congress on October 28, 2002,
assessments, like other policy processes, is chapter II: Environmental Impacts Assessment on
Plans).

Introduction and Objectives 3

 However, SEAs were only introduced much following the same key steps. A general
later in environmental policy-making overview of these common stages of EIA
processes. Whereas EIAs emerged in the and SEA processes is presented in Figure 1
late 1960s/ early 1970s, SEAs only received and Figure 2 respectively, and section 3 (EIA
significant attention in the 1980s and early systems – Legal and institutional frameworks
1990s. This was due to the realization that for EIAs) and 4 (SEA systems – Legal and
EIAs were mostly realized at the project- institutional frameworks for SEAs) of this
level for physical developments, and did report are structured accordingly. EIAs
not prove adequate for influencing public and SEAs focus on “the environment”
policy decisions, in particular at the higher and thus limit the scope of the impacts
level of decision-making. For substantively to be assessed and addressed. However, it
influencing planning decisions, EIAs were should be recalled that the tools focus on
undertaken too late [4]. Key identified the (natural) environment because the
limitations inherent of project-level EIAs environment is regularly marginalized by
are that they: decision-makers [4]. Thus, often voiced
criticism that they are tools that stand in
• React to development proposals the way of development, simply reflects
rather than anticipate them, so they the viewpoint that development means
cannot steer development away from economic development, and the prevailing
environmentally sensitive sites; paradigm of measuring only economic
• Are financed by the project development or growth in GDP. As well
proponent, and thus are often steered as the economic pillar, the principle of
in favour of the project and not the sustainable development however also
environment; includes the environmental and social
• Often happen after a decision has pillars. While the economic pillar of
already been made, and thus are sustainable development is already an
unlikely to change the course of inherent part of any project proposal, EIAs
the investment planned (no real and SEAs make sure that the environmental
assessment of alternatives); pillar is adequately considered. With
• Do not adequately consider the regard to the social pillar, many systems
cumulative impacts caused by explicitly do include social considerations
several projects or even by one in the assessments, mainly through the
project’s subcomponents or ancillary definition of “the environment” in national
developments. laws. These are often called Environmental
and Social Impact Assessments (ESIAs).
These limitations of EIAs lead to the This takes account of the strong linkages
introduction of SEAs, “the proactive between these two pillars of sustainable
assessment of alternatives to proposed or development which often risk being
existing [Policies, Plans and Programmes, overridden by the third economic pillar. In
PPPs] in the context of a broader vision, set of the context of developing countries, EIAs
goals or objectives..” [8]. and/or SEAs are therefore also considered
tools for poverty alleviation [7,9].
For both tools, the existence of a common
global approach can be seen, particularly Linked to the discussion in how far EIAs
with regard to the different stages of the and SEAs should be considered a tool for
EIA and SEA process, with many countries sustainable development, it should generally

4
be noted that advances in the design and impact assessments, and examples of these
implementation of environmentally friendly are given in Box 1.
development will in large parts be based on
the future development and adaptation of An issue to keep in mind is that both EIAs
EIA/SEA legislation and implementation and SEAs may be less effective than they
[1]. Thus both EIAs and SEAs are of high might otherwise be, as a result of lack of
relevance for achieving the Sustainable available, accessible and suitable/fit-
Development Goals. In this context, it is also for purpose data. This is particularly so
worth noting that while this study focuses on with regard to biodiversity data, leading
EIAs and SEAs, there are a broader range of in many cases to the practice of only
assessing the bio-physical environment,

Box 1. Other types of impact assessments

A variety of impact assessments can be used to assess and predict potential impacts
of specific interventions. These can be undertaken either at the project or policy
levels. Examples of impact assessments include:
Social impact assessments are generally aimed at analysing, monitoring and
managing the social consequences of development activities [10]. Integrated within
environmental assessments these are often called ESIAs and Strategic Environmental
and Social Assessments (SESAs).
Health impact assessments (HIAs) aim at influencing decision making to minimise
the harm and maximise the health benefit of proposals [11].
Gender impact assessments aim to ensure gender equality and can be a crucial
element of other types of assessments such as HIAs.
Climate change risk or vulnerability assessments do not only focus on analysing
the expected impacts and risks that may affect a specific area or sector but also
analyse the capacity to adapt to the effects of climate change.1
Technology assessments are usually undertaken to identify possible concerns
and benefits related to technological development. They therefore allow for the
consideration of mitigation measures that would reduce any potential negative
impacts resulting from the release of such technology.2
Sustainability assessments are conducted to support decision-making and policy
in a broad environmental, economic and social context and on the long-term,
transcending a purely technical/scientific evaluation.
With regard to SEAs there is also a variety of assessments that can help to inform
the development of policies, plans or programmes. Impact assessments of trade
agreements are one of these examples. These types of assessments are carried out
prior to starting specific trade negotiations for the development of trade agreements
with other countries. The aim is to understand if a trade agreement is the most
appropriate instrument to tackle a specific trade policy issue.

1 http://climate-adapt.eea.europa.eu/knowledge/adaptation-information/vulnerabilities-and-risks.
2 IAIA, available from http://www.iaia.org/wiki-details.php?ID=26 .

Introduction and Objectives 5

 Key points on EIAs and SEAs

• EIAs are environmental policy tools that are required globally by most countries
and whose results are regularly publicly acknowledged and available;
• In the case of EIAs, the impact of a physical development, and in the case of
SEAs, the impacts of adopting a plan, programme or policy by the government, is
assessed;
• EIAs and SEAs do not primarily aim at compliance with a specific environmental
standard, but at making sure that all critical information to predict the future
impact on the environment is supplied and considered in the decision-making
process;
• A key element of the EIA and SEA process is public participation;
• There is often a direct link between application of SEAs upstream, and EIAs for
projects that arise from the implementation of the policy document that had been
subject to an SEA;
• Environmental impacts include negative and positive impacts, thus next to
mitigating negative impact the assessment should also be aimed at enhancing
positive benefits through project design and implementation;
• A major challenge for EIAs and SEAs is the lack of available, accessible and
suitable/fit-for purpose data.

by for example, locating or counting of the European Union [12]. However,

certain species in the project area, instead among the countries having SEA systems
of undertaking an assessment that enables in place, only some include formal legal
the prediction of impact. The challenge is requirements to conduct SEAs.
multi-faceted, and any response measures
need to, for example, take into account In most countries, basic legal requirements
the difference between existing data and related to the EIA or SEA processes are
available data (e.g. restriction of data for included in environmental framework
non-commercial use) as well as that some laws, while more detailed EIA and/or
data might be available but not in a format SEA requirements are either stipulated
that is suitable for use by decision-makers. in specific EIA and/or SEA laws or one
or several executive or administrative
1.5 What is the role of national (implementing) regulations. In addition,
legislation? and mostly with respect to EIAs, sectoral
While a number of countries initially laws regularly include references to the EIA
introduced EIAs through executive or process in the context of sector-specific
administrative orders, the EIA systems of permitting/licencing provisions and might
almost all countries are today based on also include sector-specific technical
legislation [1]. SEA systems have spread guidance for EIAs. In some cases sectoral
more recently than project-level EIAs, in EIA rules even predate cross-sectoral EIA
particular over the last two decades, leading regulations such as in the case of Nigeria
to at least 40 countries having SEA systems with respect to the oil sector.
in place, including all member countries

6
While depth and coverage of legislation practice globally. Regarding EIAs, common
on EIAs/SEAs varies from country to concerns are summed up as follows: “from
country, the overall aim of introducing the lofty goals of project EA becoming a
requirements through law is to make EIAs planning tool and an effective tool for
and SEAs legally binding requirements, sustainable development, EA has become
thus, resulting in the potential to enforce little more than an additional regulatory
regulations and apply administrative and/ hurdle for proponents. This has resulted in
or criminal sanctions in case of violation. legitimate concern on the part of proponents
Other benefits include reducing the risk of that project EAs are a drain on resources and
decisions being influenced by inappropriate time without any substantial benefit to either
considerations, enhancing procedural the proponents or the general public” [13].
certainty, clarifying authority and creating In other words, while on the one hand EIAs
clear rights and responsibilities [13]. are regarded by some as anti-development,
others are concerned that EIAs only do
However, major challenges often remain. white- (or better green-) washing of a
One is linked to the fact that many national project. Further criticisms of EIAs can be
laws leave high levels of discretion summarized as follows:
to implementing agencies. While in
some cases this can provide important • being regularly of low quality,
flexibility to apply the regulations to • the public not being adequately
different circumstances, it can also lead consulted,
to uncertainty about the process, and • the final decision not adequately
inconsistent application, in particular in taking into account the results and
cases where it is not required to make the recommendations of EIAs,
reasons for EIA/SEA decisions publicly- • reliance on permitting conditions to
available. mitigate impact, and,
• monitoring and enforcement of the
Another challenge addresses the decision being absent or flawed.
questions of what constitutes a legally
and institutionally adequate and effective The root causes of many challenges are
EIA/SEA system. The challenge is how often found in the absence of national
to overcome the “implementation gap”, capacity at all levels of government and
thus the fact that in some cases legislative society, leading some to conclude that
requirements have been stipulated but “where the national capacity to implement
are regularly not (fully) complied with. the EIA requirement is lacking, legislation
Or that crucial elements of the common is just a useless tool” [14]. In addition,
global approach on EIAs and SEAs are not particularly in developing countries, it is
included or only generally referenced (for questionable whether sufficient attention
example public participation or follow- is allocated to the socio-economic and
up measures), leading to substantive political situation in order to overcome
shortcomings in implementation. As implementation gaps [15]. However, it
a consequence, and while the range of should be stressed that capacity develops
benefits to be gained from conducting over time and that legislation for EIAs and
EIAs and SEAs are widely acknowledged, SEAs may serve as a catalyst, including
the effectiveness of the tool is a constant by empowering the government or other
subject in literature and EIA and SEA actors to acquire capacity from different

Introduction and Objectives 7

 sources. Further, building capacity is also income countries than in developed
dependent on political will to do so. countries [16,17].

In this context it is also pointed out that Moreover, the influence of informal
comparing EIA (and SEA) systems among rules and norms on how formal rules
countries is only useful to a limited extent, are implemented and ultimately on how
given that EIA systems have progressed organisations (and systems) function, has
along different paths. For example, in often been underestimated, although less
developing countries EIAs were often so with regard to SEAs than EIAs [18].
introduced because of demands by
development assistance agencies and Therefore, and while the benefits of
global policy developments, including the incorporating legal requirements related to
banking sector, as opposed to pressure EIAs (and SEAs) are widely acknowledged,
by civil society as in the case of most it needs to be kept in mind that the legal
developed countries. Thus, it has been and institutional adequacy of EIA systems
observed that EIAs have been introduced cannot be divorced from wider issues of
later and are less firmly embedded in governance and the influence of cultural
development processes in low and middle traditions (1)

Key points on the role of national legislation

• EIA systems of almost all countries are today based on legislation;

• At least 40 countries have SEA systems in place, including all member states of
the European Union;
• The overall aim of introducing requirements through law is to make EIAs and
SEAs legally binding requirements, thus, resulting in the potential to enforce
regulations and apply administrative and/or criminal sanctions in case of
violation;
• Depth and coverage of legislation on EIAs/SEAs varies from country to country;
• The challenge is how to overcome the “implementation gap”, thus the fact that
in some cases legislative requirements have been stipulated but are regularly
not (fully) complied with; or crucial elements of the common global approach
on EIAs and SEAs are not included or only generally referenced, leading to
substantive shortcomings in implementation;
• While EIAs are regarded by some as anti-development, others are concerned
that EIAs only do white- (or better green-) washing of a project;
• Lack of capacity in implementation; it should be stressed that capacity develops
over time and that legislation for EIAs and SEAs may serve as a catalyst;
• The legal and institutional adequacy of EIA and SEA systems cannot be divorced
from wider issues of governance and the influence of cultural traditions in each
individual country and region.

8
The global and regional policy context 9
 CHAPTER 2
The global and regional policy context

The international community has prior to the approval of a development in

recognised the importance of assessing the United States in 1969.3
impacts that a range of activities can have
on the environment, in order to mitigate The Stockholm Declaration (1972) does
these impacts as far as possible. This not explicitly refer to EIAs. Nevertheless,
recognition has increased over time both principles 14 and 15 acknowledge the
in scope and depth through the number importance of planning as a tool to
of references to EIAs and SEAs in different reconcile any conflict between environment
international instruments such as treaties, and development, and avoid adverse effects
and decisions by governing bodies of of human settlements and urbanization on
international agreements. In this chapter, the environment. EIAs were considered
key developments at the global and in draft principle 20, which aimed at
regional level are presented, including the establishing the duty for states to supply
role that financial institutions have played information when their actions threaten
in the development of national EIA and the environment of others, and was part
SEA legislation. of the discussions in the preparation of the
United Nations Conference on the Human
2.1 Global developments Environment (1972). However, due to
The main fora at the global level to discuss concerns of a potential conflict between
EIAs as a key element of an evolving EIAs and the right to development,
body of environmental law, were the no agreement could be reached and
international UN Conferences. These the principle was not included in the
focused first on the Human Environment Declaration [4,19].
(Stockholm 1972), then Environment and
Development (1992, Rio de Janeiro), and A series of other non-binding instruments
subsequently on Sustainable Development referring to EIAs were adopted between the
(2002, Johannesburg and 2012, Rio de 1970s and 1980s. For example, the 1978 UN
Janeiro, often referred to as Rio+20). This Environment draft Principles of Conduct
was triggered through developments at the in the field of the Environment for the
national level, including the first adoption Guidance of States in the Conservation
of a legal requirement to conduct EIAs and Harmonious Utilization of Natural
Resources Shared by two or more States,

3 National Environmental Policy Act, 42 USC §§

4321-4370(f) (NEPA).

10
refer to the importance of EIAs to be proceedings, including redress and remedy,
conducted for activities related to natural shall be provided.
resources shared among States and thus
fostered the wider recognition of EIAs as a EIA requirements were also integrated
principal environmental management tool. in binding international agreements. For
At the same time, the references to EIAs example, the United Nations Convention
in international instruments were rather on the Law of the Sea (UNCLOS, 1982),
general and did not provide guidance on concluded in 1982 and in effect since
how EIAs should be conducted [4,19]. November 1994, requires that countries
This aspect was addressed through the assess potential effects that planned
adoption of guidelines and principles. For activities under their jurisdiction or control
example, the UN Environment Goals and can have on the marine environment
Principles of EIA (1987) which constitute (UNCLOS, article 206). Moreover, the
a set of principles to guide EIA processes International Seabed Authority, the
at the national, regional and international regulatory authority for seabed mining
levels [20] or the good practice guidance established under UNCLOS and the 1994
for applying SEA in development Agreement relating to the Implementation
cooperation (2006), developed by the of Part XI of UNCLOS, is responsible
Organization for Economic Cooperation for establishing international rules,
and Development (OECD). regulations and procedures to prevent,
reduce and control pollution of the marine
Broadening the use of environmental environment from mining activities in
assessments was one of the sustainable the Area (i.e. the seabed in areas beyond
industrial development strategies national jurisdiction). To date, the
identified in the report Our Common Authority has issued three separate legally
Future, often referred to as the Brundtland binding Regulations on Prospecting
report [19,21]. Informed by this message and Exploration. Each set of regulations
and developments that were taking place contains provisions dedicated to the
around the world, EIAs became a globally protection and preservation of the marine
recognised principle of international environment. In 2014, the Authority began
environmental law in 1992 at the Rio developing a regulatory framework for
Conference. In 1992 Principle 17 of the mineral exploitation in the Area (the so-
Rio Declaration included the obligation called ‘exploitation code’), which includes
to conduct an EIA for proposed activities an EIA process and a strategy for the
that are likely to have a significant development of regional Environmental
adverse impact on the environment [22]. Management Plans [23]. In addition, a
Furthermore, Principle 10, provides that preparatory committee established by the
each individual shall have appropriate United Nations General Assembly through
access to information concerning the resolution 69/292 was tasked to develop an
environment that is held by public international legally binding instrument
authorities, including information on under UNCLOS on the conservation
activities in their communities, and the and sustainable use of marine biological
opportunity to participate in decision- diversity of areas beyond national
making processes. In addition, effective jurisdiction (ABNJ). One of the four
access to judicial and administrative topics the committee was mandated to

The global and regional policy context 11

 address is EIAs. The deliberations of the VII/16); the endorsement of the voluntary
committee are ongoing. guidelines on biodiversity-inclusive impact
assessment and the draft guidance on
Opened for signature during the Rio biodiversity-inclusive SEAs (CBD COP
Conference, both the Convention on decision VIII/28) and, for the marine
Biological Diversity (CBD) and the environment, the voluntary guidelines for
United Nations Framework Convention the consideration of biodiversity in EIAs
on Climate Change (UNFCCC) include and SEAs in marine and coastal areas
provisions on impact assessments. (CBD COP decision XI/18). At the 13th
meeting of the Conference of the Parties
The CBD requests Parties to require EIAs to the CBD, countries were invited to take
of proposed projects that are likely to have measures to improve the effectiveness of
significant adverse effects on biological EIAs and SEAs, including by strengthening
diversity, with a view to avoiding or the application of SEA methodologies, by
minimizing such effects. Importantly, using tools to evaluate potential impacts
public participation is highlighted as a on biodiversity and ecosystem functions
component of those EIA processes (CBD, and services (CBD COP decision XIII/3).
article 14.1.a). Furthermore, SEAs are Countries were also invited to consider
also considered as countries are required health-biodiversity linkages in EIAs and
to introduce arrangements to ensure SEAs (CBD COP decision XIII/6) and
that the environmental consequences to take measures to ensure conservation
of “programmes and policies” that are and sustainable use of marine and coastal
likely to have significant adverse impacts biodiversity by implementing relevant
on biological diversity, are duly taken tools, including EIAs and SEAs (CBD COP
into account (CBD, article 14.1.b). The decision XIII/12).
current Strategic Plan for Biodiversity
2011-2020, which is supported by the In the field of climate change, UNFCCC
UN General Assembly and several recognises impact assessments as one
multilateral environmental agreements of the methods to take into account
and international organizations, makes climate change considerations in social,
no explicit reference to EIAs or SEAs economic and environmental policies and
(CBD COP decision X/2). Although non- actions, so as to minimise adverse effects
binding, a number of decisions of the CBD that projects or measures undertaken to
governing body provide specific guidance mitigate or adapt to climate change can
on the consideration of biodiversity have on the quality of the environment
when conducting impact assessments. (UNFCCC, article 4.1.f). Furthermore,
Some relevant outcomes include the while not explicitly referring to EIAs or
adoption of the Akwé: Kon Voluntary SEAs, the Kyoto Protocol (1997) requests
Guidelines on Environmental and Socio- developed country Parties to implement
cultural Assessment aimed at guiding their emission reduction commitments
the development and implementation of minimising adverse social, environmental
impact assessment regimes in a way that and economic impacts on developing
supports the full and effective participation country Parties. To that effect, countries
of indigenous and local communities discuss the necessary actions to minimize
during EIA processes (CBD COP decision the adverse effects of climate change and/

12
or the impacts of response measures on Regardless of specific treaty obligations,
developing countries (Kyoto Protocol, it should be highlighted that customary
article 3.14). In this context, a number of international law obliges States to conduct
developed countries conducted impact transboundary EIAs for activities which
assessments and consultation processes may have significant adverse impact in
when developing new, or modifying a transboundary context. This has been
existing, policies.4 Response measures recognized by the International Court
are also included in the Paris Agreement of Justice in its judgement of the Pulp
(2015) though only relating to the impacts Mills Case in 2010.5 However, the specific
that those measures may have on the procedure and content of an assessment
countries’ economies (Paris Agreement, procedure, including with respect to
article 4.15). public participation, is not yet stipulated
by customary international law.
Another treaty that includes provisions on
EIAs is the Protocol on Environmental With respect to recent developments in
Protection to the Antarctic Treaty (1991). global environmental policy, the outcome
It provides detailed information on EIAs, document of the 2012 Rio+20 Conference
with an annex specifically dealing with the only refers to impact assessments under
procedural requirements to be followed for the section dealing with oceans and seas,
carrying out assessments in the Antarctic. indicating the effective use of impact
assessments as a means of protecting
There are also important agreements vulnerable marine ecosystems from
outside of the environment sector that significant adverse impacts [24,25].
are of key relevance for the development Furthermore, EIAs are not explicitly
of EIAs and SEAs. For example, the mentioned in the United Nations 2030
Convention concerning Indigenous and Agenda for Sustainable Development
Tribal Peoples in Independent Countries, and its Sustainable Development Goals.6
known as the 169 Convention, was adopted Nonetheless, EIA and SEA processes
in 1989 with a view to ensuring that can be useful tools to better understand,
indigenous peoples can freely participate and therefore mitigate, the potential
at all levels of decision-making in policies negative impacts that a range of activities,
and programmes which concern them (169 programmes, or policies could have on the
Convention, article 6). Regarding EIAs, the environment.
Convention stipulates that governments
shall ensure that studies are carried out, in
co-operation with the peoples concerned,
to assess the social, spiritual, cultural
and environmental impacts of planned
development activities on them (169
Convention, article 7).
5 International Court of Justice, Pulp Mills on the
River Uruguay (Argentina v. Uruguay). http://
www.icj-cij.org/en/case/135.
4 The secretariat compiles annually the information 6 Resolution adopted by the General Assembly on
submitted by Parties in relation to the 25 September 2015 (A/RES/70/1) - Transforming
implementation of article 3.14. Information from our world: the 2030 Agenda for Sustainable
2016 is available from http://unfccc.int/resource/ Development. http://www.un.org/ga/search/view_
docs/publications/art_314_compilation_2016.pdf. doc.asp?symbol=A/RES/70/1&Lang=E.

The global and regional policy context 13

 Key points the global context

• The main fora at the global level to discuss EIAs as a key element of an evolving
body of environmental law, were the international UN Conferences, including the
Conference on the Environment and Development in 1992;
• Next to a series of non-binding, but nevertheless important instruments
referring to EIAs, EIA requirements were also integrated in binding international
agreements such as UNCLOS, UNFCCC and CBD;
• A number of decisions of the CBD governing body provide specific guidance on
the consideration of biodiversity when conducting impact assessments;
• Outside of the environment sector important agreements for EIAs include the
Indigenous and Tribal Peoples Convention;
• Customary international law obliges States to conduct transboundary EIAs for
activities which may have significant adverse impact in a transboundary context;
• Current developments include the drafting of the regulatory framework for
mineral exploitation in the international seabed Area and the development of a
legally binding instrument under UNCLOS on the conservation and sustainable
use of marine biological diversity in international waters;
• With respect to international policy, EIAs and SEAs should play a crucial role in
the implementation of the 2030 Agenda and its Sustainable Development Goals.

2.2 The role of international and their potential impacts on the environment
regional financial institutions
[27]. This requirement evolved, until the
In addition to the global instruments environmental assessment was included
that fostered the development of EIA and in the bank’s operative framework in 1989,
SEA regulations at the national level, the and then revised through the Operational
adoption of environmental standards Policy 4.01 and Bank Procedure 4.01.
in multilateral development banks and
financial institutions has also been of The adoption of environmental and social
significance for the progress of these policies was thus aimed at improving project
systems around the globe. selection, design and implementation with
a view to minimising potential negative
The core mission of development effects on the environment and people
banks and financial institutions is to [26]. It is considered that the safeguard
contribute to poverty alleviation by policies helped fill the gaps left by the local
fostering development. As such, the main regulatory frameworks, and safeguard the
critique that has led to the elaboration sustainability of projects in developing
of environmental standards in these countries where EIA requirements are
institutions was the lack of sufficient relatively loose [28].
consideration of environmental aspects
when pursuing specific projects [26]. In this Despite the general recognition of such
context, the World Bank adopted a policy safeguard policies as important stepping
in 1984 introducing a requirement that all stones, their implementation and
potential projects undergo an analysis of

14
effectiveness have been questioned [29]. In the context of development banks, SEAs
A step towards addressing some of these have been mainly conducted for projects
concerns was the establishment of an with potential significant impacts at the
inspection panel in 1993, by the World regional and/or sectoral level. For example,
Bank, responsible for investigating claims the energy sector has been the one with the
from individuals affected by the bank’s highest number of SEAs [32].
procedures and policies [4,27]. In addition,
a reform process led to the development of The International Finance Corporation
the Environmental and Social Framework (IFC), responsible for strengthening the
in 2016, to replace the earlier environmental private sector in developing countries and
policies and procedures and adapt the one of the members of the World Bank
bank’s safeguards to a changing context.7 Group, also has its own Performance
Some of the key messages that resulted Standards and Environmental, Health
from the consultations held during the and Safety Guidelines. The Environmental
revision process were: and Social Performance Standards aim
to provide guidance to IFC’s clients on
• While the importance of considering how to identify risks and impacts, while
cumulative and indirect impacts was helping to avoid, mitigate, and manage
acknowledged, there were concerns of risks and impacts.8 The performance
this requirement being burdensome, standards cover different areas such as
with no clear idea on how this will Performance Standard 6 on biodiversity
be done by the Bank (due to lack of conservation and sustainable management
monitoring of these impacts) [30] of living natural resources (which not only
• Need for the new safeguards to considers biodiversity conservation but
reinforce public participation, also maintaining the benefits of ecosystem
including with vulnerable groups [31] services); or Performance Standard 7 on
• Need to strengthen impact indigenous peoples (not only to avoid or
assessments and include climate minimise adverse impacts of projects on
change impacts, whilst recognizing indigenous peoples but also to ensure free,
concerns on measuring and prior and informed consent of the affected
monitoring greenhouse gas (GHG) communities). The 2012 revision of these
emissions [30] standards was based on extensive expert
• Need to include the application of and stakeholder consultation and as such,
environmental and social safeguards many of these standards have become
in the project budgets [31] highly regarded as international good
• Limited knowledge base on practice among some industry sectors.
biodiversity offsets – thus, how to Building on the IFC standards, the Equator
implement such a requirement is Principles, initially launched in 2003 and
challenging [30,31] last updated in 2013 following the release
of the revised IFC performance standards,
created an industry-wide framework to
manage environmental and social risks
7 It is expected that the new safeguards will become
operational in 2018. For more information see in financed projects [33]. The Principles
http://web.worldbank.org/WBSITE/EXTERNAL/
PROJECTS/EXTPOLICIES/EXTSAFEPOL/0,,men
uPK:584441~pagePK:64168427~piPK:64168435~t 8 IFC, Performance Standards on Environmental
heSitePK:584435,00.html. and Social Sustainability, 2012.

The global and regional policy context 15

 are drafted, enacted and applied mainly by basis and could potentially influence the
private actors of the financial sector, on a development of laws and standards at
voluntary contractual basis [34]. The 91 the domestic level. Notwithstanding its
financial institutions9 that have adopted legal implications, there is no consensus
the Principles to date have to contractually on whether the Principles are making
oblige their clients to comply with the a substantial tangible difference on the
Equator Principles’ standards, which ground [35]. Furthermore, others regard
refer specifically to the IFC performance such a quasi-regulatory role as an attempt
standards, in their businesses [34]. to universalise specific standards regardless
of the specific national or regional
The Equator Principles Financial circumstances in different contexts [36].
Institutions cover over 70 percent of
international Project Finance debt in With the launch of the Equator Principles
emerging markets. It is therefore argued III in 2013, some areas of concern such
that through these Principles, private banks as the lack of detailed consideration of
with a global reach play a quasi-regulatory climate change issues, were addressed.
role with respect to development activities. For example, the Principles now include a
Thus, the Equator Principles work as soft requirement to conduct alternative analyses
law for the banks who join on a voluntary on projects that are intensive in terms of

Key points on the role of financial institutions

• The adoption of environmental standards in multilateral development banks and

financial institutions has been important for the progress of EIA and SEA systems
around the globe;
• In some cases, the safeguard policies helped fill the gaps left by the local
regulatory frameworks, and safeguard the sustainability of projects in developing
countries where EIA requirements are relatively loose;
• At the same time, some regard such a quasi-regulatory role as an attempt to
universalise specific standards regardless of the specific national or regional
circumstances in different contexts;
• Next to the 2016 Environmental and Social Framework of the World Bank, the
International Finance Corporation (IFC) has its own Performance Standards
and Environmental, Health and Safety Guidelines, aiming to provide guidance
to IFC’s clients on how to identify risks and impacts, while helping to avoid,
mitigate, and manage risks and impacts;
• Building on the IFC standards, the Equator Principles created an industry-wide
framework to manage environmental and social risks in financed projects and
are being applied mainly by private actors of the financial sector, on a voluntary
contractual basis

9 Information as of 24 March 2017, available from

http://www.equator-principles.com/.

16
greenhouse gas emissions, to evaluate less of the countries reforms started at the end
carbon-intensive options [33]. of the 1980s with the onset of political
and economic changes. The second stage
2.3 Regional developments occurred in the early- to mid-1990s, at
Progress made on EIAs and SEAs at the the time of the dismantling of socialist
global level has had a significant impact on political and economic regimes. Most
the development of these systems at regional recently, the gradual accession of more
and national scales, either motivated by Central and Eastern European Countries
requirements from development banks, or to the European Union has given another
by key events that shaped the international impetus for reform, both with regard to
environmental agenda such as the Earth EIAs and SEAs [39].
Summit in 1992. While a comprehensive
overview is beyond the scope of this report, Given the circumstances that countries
key developments with regard to selected within a region sometimes share, a number
regions will be presented. of binding agreements or non-binding
instruments have been elaborated at the
While EIA regimes in countries such as the regional level to guide and/or support
United States, Australia and New Zealand countries in the implementation of a
were developed in response to strong range of aspects related to EIAs. In the
environmental movements in these context of the United Nations Economic
countries [37], EIA regimes in a number of Commission for Europe (UNECE), the
regions such as the Pacific, Latin America Convention on Environmental Impact
and Africa were mainly established under Assessment in a Transboundary Context
the influence of, or in association with (Espoo Convention, 1991) incorporates
multilateral developments banks. In the obligation for Parties to establish
particular, projects with the World Bank, the necessary EIA process in place for
the Asian Development Bank and the those activities that are likely to cause
Inter-American Development Bank were significant adverse impact across borders.
an important booster to incorporate The Espoo Convention provides detailed
EIAs into environmental policies and rules for the EIA process and in 2001
legislation [15,38]. While in Latin America the Convention Parties agreed to amend
this mainly happened during the 1970s the Convention so to allow that, with
and 1980s, in the Pacific it was mostly the approval of the membership, non-
during the 1990s and 2000s, supported by UNECE members can also become
organisations such as the Secretariat of the Parties [4]. Later on, the Protocol on
Pacific Regional Environment Programme Strategic Environmental Assessment to
(SPREP). the Convention on Environmental Impact
Assessment in a Transboundary Context
Some specific environmental assessment (Kiev Protocol, 2003) was adopted with
elements were also already introduced in the main objective of ensuring that
most socialist countries during the 1970s. environmental considerations are taken
Over the decades, these EIA systems, which into account in the development of plans
were state-led and focused on ensuring and programmes, and establishing SEA
compliance with environmental standards, procedures to that effect. The Protocol,
were subject to a series of reforms. In most which requires SEAs to be undertaken for

The global and regional policy context 17

 certain plans, programmes and policies, is was the first agreement incorporating the
also open for all United Nations member obligation for countries to undertake an
states. environmental assessment. Afterwards,
other regional seas conventions such as
The development of the Kiev Protocol the Convention for the Protection and
was influenced by developments in Development of the Marine Environment
the European Union. Following the in the Wider Caribbean Region (Cartagena
development of the EIA directive in Convention), the Convention for Western
1985 and the SEA directive in 2001, as Indian Ocean (Nairobi Convention, 1985)
well as a number of revisions over the and the Convention for the Atlantic Coast
years, all Member States of the European of the West, Central and Southern Africa
Union have transposed the directives into Region (Abidjan Convention, 1981) also
national legislation. Moreover, countries include EIA provisions. In addition and
aspiring to join the European Union are over time, the regional seas conventions
making efforts to align their legislation have advanced in the consideration
with the EU directives as well as the of more specific provisions, as can be
Espoo Convention and its Kiev Protocol. illustrated with the example of the
Furthermore, the UNECE Convention on amended Barcelona Convention for the
Access to Information, Public Participation Coastal Region of the Mediterranean Sea,
in Decision-making and Access to Justice which entered into force in 2004.
in Environmental Matters (Aarhus
Convention) is also of relevance to EIA With regard to non-binding guidelines, in
processes as it aims to guarantee the the context of the Caribbean Community
rights of access to information, public and Common Market, a number of
participation in decision-making, and guides were elaborated in collaboration
access to justice in environmental matters. with the Caribbean Development Bank,
Public participation is a crucial element with the ultimate goal of integrating
in any EIA process and therefore it is climate change adaptation into the EIA
worth highlighting some of the key points process [40]. Furthermore, the Central
emphasised in the Convention such as American Commission for Environment
informing the public of the environmental and Development (CCAD) of the Central
impact of the activities and products; American Integration System (SICA)
including reasonable time-frames for the developed an EIA Regional Action Plan
different phases; allowing sufficient time in 2002, with the main objective of
for informing the public; and informing promoting coordination and cooperation
on whether the relevant activity is subject among all authorities implementing EIAs
to either national or transboundary EIAs in the region. The action plan includes an
(Aarhus Convention, 1998). EIA Regional Strategy for Central America,
consisting of nine strategic actions.
With regard to the marine environment, the Among others, the following strategic
adoption of the regional seas conventions actions can be highlighted: (i) develop an
can also be regarded as an important agenda for improvement of EIA systems
booster for EIA legislation. The Kuwait in the region; (ii) harmonization of lists
Regional Convention for Co-operation on and thresholds; and (iii) regional agenda
the Protection of the Marine Environment for the harmonization of environmental
from Pollution (Kuwait Convention, 1978) legislation.

18
Key points on regional developments

• Progress made on EIAs and SEAs at the global level has had a significant impact
on the development of these systems at regional and national scales, either
motivated by requirements from development banks, or by key events that shaped
the international environmental agenda;
• While EIA regimes in countries such as the United States, Australia and New
Zealand, developed in response to strong environmental movements in these
countries [37], EIA regimes in a number of regions such as the Pacific, Latin
America and Africa were mainly established under the influence of, or in
association with multilateral developments banks;
• Some specific environmental assessment elements were also already introduced in
most socialist countries during the 1970s;
• Given the circumstances that countries within a region sometimes share, a
number of binding agreements or non-binding instruments have been elaborated
at the regional level to guide and/or support countries in the implementation of a
range of aspects related to EIAs;
• With regard to the marine environment, the adoption of the regional seas conventions
can be regarded as an important booster for EIA legislation.

The global and regional policy context 19

20
Chapter 3
Legal and institutional frameworks for EIAs

3.1 EIA arrangements

Another benefit of linking the EIA
3.1.1 Triggering EIAs process to permitting processes is to
facilitate compliance with EIA approval
The triggering factor for the EIA process conditions as well as the implementation
is generally a government permitting or of enforcement measures, such as the
licencing process for different activities withdrawal of the project approval. This
(often also termed development is regularly achieved by making the EIA
projects) that shape the environment. approval an integral part of the permit
The permitting process seeks to regulate or licence. A legal arrangement where
competing interests as well as alignment the EIA process is intrinsically linked
with government policies. to government permitting processes is
stipulated in most national environmental
As a tool designed to assess a planned framework laws or EIA laws10.
activity prior to its commencement, EIA
approval is regularly a legal pre-condition Most recently there is some movement
for the final decision on whether to issue towards making the EIA process only a
a permit or not, and if so, under which legal requirement for the execution or
conditions. This way it not only assesses implementation of a project, but not for
whether the planned project will have a the general approval of a project under
significant impact on the environment, the applicable sectoral law. For example,
but it can also influence the design of the following a revision of its EIA law in 2016 in
project and thus its impact. In other words, China, the general permitting process and
the EIA process can influence how the the EIA process are now separate and can
project should be implemented in order to happen in parallel11. While this is generally
avoid, minimise, restore, and offset negative being justified for the sake of not holding
environmental impacts and ideally trigger
positive impacts for the environment.
10 E.g. Environmental (Impact Assessment and
Audit) Regulations of Kenya [2003], revised in
This approach takes into account the 2012, Section 4 (2); Environmental Protection and
Conservation Act of the Republic of Vanuatu, last
fact that the environment should not be updated through Act no. 28 of 2010, Paragraph
treated as an isolated or stand-alone issue 11; Environmental Code of the Republic of
Kazakhstan (2007), Article 51 (1); Environmental
when reviewing project applications, but Impact Assessment System Act of Peru [2001],
as an integral part of the decision-making revised in 2008, Article 3.
11 The Law of the People’s Republic of China on
process in order to foster sustainable Environmental Impact Assessments [2002], last
development for the benefit of all people. revised in 2016.

SEA systems – Legal and institutional frameworks for SEAs 21

 up important developments for too long, Another challenge in case of a link to
the major criticism is that once the general government permitting, is that purely
permitting decision has been issued in private activities (where no permit is
favour of the project, or even construction required) or, in the case of a federal EIA
has started, the EIA process is less likely to system, those activities subject only to
influence the design and implementation sub-state government oversight, might
of the activity, and thus the impact of the be excluded from an EIA requirement,
activity on the environment. Moreover, it regardless of their environmental impact. In
will certainly make it even more difficult a number of countries, such as Canada, the
to deny EIA approval, at least for political gaps in federal coverage are supplemented
reasons [41]. by EIA requirements at the sub-state level.
However, in the United States of America,
However, where EIA approval has been for example, there are notable gaps in the
made a legal condition for project approval, EIA system coverage due to the absence of
some government authorities tolerate comprehensive EIA requirements in many
or approve project implementation states. In many countries, to counter this,
activities in the absence of EIA approval the approach has been to identify areas
(e.g. Nigeria [42,43] and Indonesia [44]). of prima facie application without a
A major challenge for EIA systems is to requirement for a governmental trigger.
not simply be perceived as an additional Instead, or often in addition to the link
and resource-intensive hurdle for project to a permitting or licencing process, the
implementation and development, but legislation thus identifies industrial sectors
as an integral part of decision-making or categories of activities that are subject
that considerably shapes environmental to EIAs, regardless of a requirement for
outcomes [45].

Table 1: Overview of section content related to EIA trigger and EIA system coverage

  EIA trigger and EIA system coverage

Specific issue Intrinsic link of Cases of toleration Prima facie Parallel EIA Interplay
the EIA process of project application of approval of federal
to government implementation EIA and sectoral and sub-
permitting despite absence of permitting national level
EIA approval (decentralized
system)

Case study Kenya; Vanuatu; Nigeria; Indonesia Canada; China Canada; USA;
countries and Kazakhstan; Kenya Peru
illustrative Peru; Fiji;
examples* Oman; Egypt;
Lebanon;
Georgia

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

22
 Key points on linking the EIA process to government permitting processes

Benefits:
• Most likely influences the design of an activity in order to mitigate negative
impact and ideally enhance positive impact
• Fosters the inclusion of environmental considerations as an integral part of the
decision-making process
• Facilitates compliance with EIA approval conditions and implementation of
enforcement measures, e.g. withdrawal of project approval
Challenges:
• Perception of EIAs as an additional and resource-intensive hurdle for project
development and implementation
Solution: Awareness raising and capacity building about the benefits of EIAs
• No coverage of purely private activities, thus where no government permit is
required
• In a federal state, activities subject only to sub-state government oversight are not
covered, unless federal coverage are supplemented by EIA requirements at the
sub-state level
Solution: Identification of prima facie application for specific activities without a
requirement for a government trigger

government action, such as the issuance of countries also established specialized

a permit12 [4] agencies charged primarily with the
oversight of the EIA system in the country,
3.1.2 Institutional set-up such as in Peru.
Linked to the different legal approaches
in triggering EIAs, the institutional A range of different approaches that
arrangements for the implementation determine the relationship of the EIA
of EIAs are important to understand approval process, to sectoral permitting
EIA systems. This includes the division processes, have been adopted by countries.
of competencies in the EIA process, In the following sections, a number of
in particular whether the same agency these arrangements will be presented
responsible for the issuance of a permit and with a special focus on the distribution of
implementation oversight is in charge of decision-making power in the approval
the EIA process (regularly a sectoral body), phase and the follow-up phase, and thus
potentially consulting environmental institutional competencies. Thereby it
agencies for the review of the EIA report, should be noted, that because EIAs often
or whether an environmental agency is in regulate government decision-making,
charge of conducting or overseeing the the system must to some degree adhere
whole EIA process. More recently, some to existing structures – such as federal
arrangements or broader permitting/
approval regimes.
12 E.g. Environmental Management and Co-
ordination Act of Kenya [1999], last revised in
2015, Section 58 (1).

SEA systems – Legal and institutional frameworks for SEAs 23

 Table 2: Overview of section content related to division of competencies

  Division of competencies

Specific issue Central role Specialized EIA approval Unclear or Delegation of EIA-
of general agency for has been overlapping relevant powers to
environmental EIA oversight made an division of the sub-national
agencies and integral part competences level under national
departments of sectoral oversight
permitting
processes

Case study Kenya; China; Peru Egypt; Nigeria China, Egypt

countries and Fiji Lebanon;
illustrative Georgia
examples*

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

Central role of environmental agencies

level Environmental Committees for
In many countries the EIA approval, whether decision-making on EIAs14. The approval
an integral part of an environmental of the EIA report leads to a decision on the
permitting process or the result of an issuing of an EIA licence. Such a licence
independent EIA process, is governed by is required before other licences (trading,
environmental agencies and departments. commercial or development) can be issued.
In Kenya and China, for example, these are EIA approval and project approval are thus
independent processes that are separate two separate decisions taken by different
from sectoral permitting procedures. In competent authorities. The Water Act
Peru, the EIA system is moving towards of Kenya (2016), for example, stipulates
a one-window approach, with an agreed in Article 40 (IV) that an application
schedule for national sectoral authorities for a permit under the Act shall, where
to transfer their responsibilities related to applicable, be the subject of [..] an EIA
the evaluation and approval of detailed- in accordance with the requirements of
EIAs to the environmental authority.13 And Kenya’s Environmental Management and
whereas in Kenya and Peru the respective Co-ordination Act. At the same time,
laws make the EIA approval a pre-condition sectoral permitting bodies, such as the
for sectoral permitting processes, this is Water Resources Authority in the case of
not the case in China, where both can run the Water Act, will generally be consulted
in parallel following a recent legislative at the review stage of the EIA report15.
reform.
While the implementation of the Act
In Kenya, EIA decision-making is governing the EIA process in Kenya
centralized. The National Environment
Management Authority (NEMA) decides
14 E.g. Environmental (Impact Assessment
on all EIAs, but has to consult with County and Audit) Regulations, 2003, Article 9 (1).
Environmental Management and Co-ordination
Act of Kenya [1999], (amended 2015, with a new
13 Currently, the EIA processes for the mining, s.29 replacing District Environmental Committees,
energy, hydrocarbons and transport sectors are with County Environmental Committees).
already managed by the National Environmental 15 EMCA, 1999, Section 60 and Environmental
Certification Service for Sustainable Investments, (Impact Assessment and Audit) Regulations, 2003,
under the umbrella of the environmental agency. Article 20.

24
by both the National Environment specific subject matter and context need to
Management Authority and relevant lead be considered as, for example, there are
agencies has been effective in certain areas, certain issues that have been decentralised
observed limitations include the fact that (e.g. artisanal, small-scale mining), or
government agencies do not have adequate others that have not yet been transferred
capacity to effectively guide and review on to the SENACE.
EIAs. This includes financial resources, in
particular following the removal of the EIA In China, the responsibility for the EIA
fee in January 2017. It is also argued that process is divided between the central and
whilst it is important to improve policies the sub-national level. At the central level,
and laws, and to capacitate national and the main management agency of EIAs is
local institutions, addressing critical the Ministry of Environmental Protection
conditions in the country, like most (MEP) and at the sub-national level
importantly poverty, is crucial in order to the Environmental Protection Bureaus
achieve better use of EIAs [46,47]. (EPBs) are in charge of the process. China
has a total of 34 administrative units at
In Peru, with respect to institutional provincial level directly under the central
arrangements, the Ministry of Environment government in Beijing. Enterprises directly
is the governing body of the EIA system. submit their reports to the environmental
Importantly, in 2012 the National protection authorities.
Environmental Certification Service for
Sustainable Investments (SENACE) was The Ministry of Environmental Protection
established to enhance the credibility of approves the EIA reports for four types
the EIA system. Historically, EIA processes of construction projects, including
in Peru had been managed under a sectoral projects involving nuclear facilities or
approach. This raised concerns over its cross-boundary projects (across national
credibility and, as a result, a reform process administrative units). In all other cases
was undertaken [48]. The SENACE was Environmental Protection Bureaus
thus established under the umbrella of at provincial, autonomous region
the Ministry of Environment but with and municipal levels coordinate and
technical independence, therefore playing share approval authority with county
a key role in the implementation of the EIA Environmental Protection Bureaus. The
system. approval of the EIA report and the project
approval (sectoral permitting or licencing
SENACE is in charge of reviewing and requirement) are two separate decisions.
approving detailed EIAs for those sectors Furthermore, and with the adoption of the
that transferred their competences for that 2016 revision of the EIA law, EIAs are no
purpose (i.e. to date- mining, electricity, longer a prerequisite for other approvals,
hydrocarbons and transport). Furthermore, thus, different permissions can be applied
the national sectoral authorities as well as for in parallel.
local and regional authorities are in charge
of reviewing and approving the terms of Whereas policy-makers argued that the
reference for the semi-detailed-EIAs and 2016 revision of the EIA law will reduce
detailed-EIAs as well as of issuing the the amount of time applicants spend
permits under the three categories, based stuck in process, others raise concerns
on their competences. For this purpose, the that once time-consuming financial and

SEA systems – Legal and institutional frameworks for SEAs 25

 Central role of sectoral agencies
project approvals have been granted, the
“lost” administrative costs will make it In a number of countries where EIA
difficult to exercise an EIA veto regardless approval has been made an integral part
of the assessment outcome.16 And similar of sectoral permitting processes, the EIA is
to the situation in Kenya and many other considered a procedural step in obtaining
countries, another perceived challenge sectoral permits, and thus the competent
for the effective implementation of the sectoral agency is in charge of the complete
EIA system in China are insufficient process. This is for example the legal
resources of environmental authorities approach implemented in Egypt, Lebanon
and structural challenges with regard to and Georgia.
the environmental governance system in
general [49]. In Egypt, the Environmental Protection
Law of 1994, revised in 2009,
In Oman, it is a legal requirement to complemented by a number of decrees
have obtained an environmental permit, signed by the President, Prime Minister,
including if required EIAs, prior to Minister or CEO/ Egyptian Environmental
commencing construction for planned Affairs Agency (EEAA), provide the legal
project17. The interpretation of this framework for EIAs. According to the
in the non-binding MECA Guidelines Law, the Egyptian Environmental Affairs
for Obtaining Environmental Permits, Agency (EEAA) as the executive arm of the
Appendix B is that the environmental Ministry of State for Environmental Affairs
permit forms a basis for issuance of at the central level, oversees the EIA system,
other relevant environmental sub- but sectoral ministries and governing
permits and licences. And also in practice bodies are the competent administrative
sectoral permits are only issued once the authorities for EIAs. This is due to the
environmental permit has been granted links between the EIA system and sectoral
by the Ministry of Environmental and licencing processes: EIAs are considered to
Climate Affairs. be one of the requirements for receiving
licenses and the Competent Administrative
In the Pacific, the Department or Ministry Authorities (CAA) are the main interface
of Environment of most governments has between the project proponent and the
the authority to enforce EIA legislative EIA system (one-window approach). The
requirements. The EIA approval Competent Administrative Authorities
contributes to the overall approval permit therefore have executive powers in the EIA
for developments that undergo assessment process. They receive the applications and
through the EIA process. In Fiji, for take the decision on approval or rejection
example, an EIA approval is required of the activity. The main responsibilities
from the Department of Environment of the Egyptian Environmental Affairs
before developments permits are issued Agency is to set the requirements and
by the Department of Town and Country criteria to undertake EIAs and to issue
Planning. EIA guidelines. It is further generally
responsible for the review of the EIA reports
(Article 20 EPL). However, for specified
16 https://www.chinadialogue.net/blog/9122-Has- projects (classified as category A and B)
China-s-impact-assessment-law-lost-its-teeth-/en.
17 RD 114/2001 Law on Conservation of the
review responsibilities are assigned to its
Environment & Prevention of Pollution, Article 9. Regional Branch Offices for the purpose

26
of incremental decentralization [50]. The require ecological examination. Where
EEAA is responsible for review of projects a construction permit is required, the
under category C. It should be noted that public authority responsible for issuing
the Competent Administrative Authorities the construction permit (the Ministry of
are not bound by the suggestions of the Economy and Sustainable Development
Egyptian Environmental Affairs Agency or the Local Self-Government Unit, as
[50]. appropriate) must determine whether the
proposed activity requires an EIA and if
In case a decision on an EIA is required so, involves the Ministry of Environment
as a prerequisite for the issuance of a and Natural Resources Protection in the
development permit in Lebanon, the second stage of permitting. In accordance
concerned government agency for the with the “one-window” approach, the
issuance of the development permit proponent thus does not deal directly
transfers the application to the MOE. with the environmental authority. Rather,
This does not apply for industrial permits the proponent submits its application
applied for at the Ministry of Industry and to the construction authority, which
Health or at the district level18. Generally communicates with the environmental
also in Lebanon, weak institutional authority. The responsibility for all EIA
capacity of the Ministry of Environment processes lies with the national authority
(in particular human capacity in terms of that is the Ministry of Environmental
staff numbers) in relation to environmental Protection and Natural Resources (MoE)
monitoring and management is observed [52].
[51].
The current legislation of Georgia has been
In Georgia, the 2005 Law on Licenses criticized as it does not guarantee that the
and Permits19 defines the list of categories official EIA procedure begins at an early
of licenses and permits, and sets up the stage in decision-making when options
rules for the issuance, amendment and are open. The screening stage is in practice
termination of licenses and permits. often dependent on the proponent, while
This includes environmental impact the scoping stage takes place under the sole
permits and various types of construction responsibility of the proponent, without
permits. The Law on Environmental official involvement of public authorities.
Impact Permits links the main permitting Further, it is considered unclear whether
procedure (the construction permit) to the authorities issuing construction
the Environmental permitting procedure permits respect and maintain inter-agency
and thus EIAs. The environmental impact coordination principles. And even if this
permit procedure (including EIAs) is functions well in most cases, the procedure
required only in stage II of the construction may be misleading or confusing to project
permit, and only for those activities that proponents [52].

With respect to the Law on Licenses and

18 Environmental Impact Assessment Procedures Permits it should also be noted that there
Decree 8633 of the Government of Lebanon, 2012,
Art. 4, Annex 4. is a general exemption from its application
19 Please note that the Law has most recently been for projects undertaken by government
amended. The new law on Environmental Impact
Permits and Ecological Expertise will enter into
ministries, the local self-government of
force on January 1st, 2018. Tbilisi, and certain agencies subordinated

SEA systems – Legal and institutional frameworks for SEAs 27

 to the ministries or Tbilisi local self- the EIA process. It replaced the Federal
government. Such projects are instead Environmental Protection Agency (FEPA)
covered by sub-legislative normative acts, in 2007.21
which establish special consent procedures
for these projects that may include EIAs. State Environmental Protection Agencies
However, the mandatory application of are often only involved at the review stage
EIAs in such situations has been questioned of the EIA process, which is considered a
and a lack of clarity and legal certainty for challenge as they want to have an active role
this significant category of projects has in the management of the environment
been observed. In addition, it has been within their areas, and thus often demand
noted among civil society organizations a repeat of EIAs [43,53].
that this alternative procedure does not
meet the standards of Georgian EIA For historic reasons there is also an EIA
legislation [52]. system in place for activities in the oil and
gas sector. Under the 1969 Petroleum Act,
The identified potential shortcoming of supplemented by procedural guidelines
the legal and institutional framework on updated in 1999, the Directorate of
EIAs in Georgia are being considered in a Petroleum Resources, DPR, carries out
current legal reform process of the EIA in-house EIA studies. Lastly, a third
(and SEA) system, which started in 2013 EIA system exists under the Urban and
[52]. Regional Planning Act 56 (1992)22, which
is governed by local government councils
Unclear or overlapping division of and the town planning divisions of the
competences at the national level State Ministries of Lands [16,17,43].
As in other areas of regulation, there are
also a few examples where the division of The federal EIA law is modelled on the
competencies among different government US NEPA Act, covering all sectors of the
institutions are not clear, which regularly economy, while the Urban and Regional
hampers implementation. This is the case, Planning Act (1992) is modelled on the UK
for example, in Nigeria, where the historic Town and Country Planning Regulations
development of the legal and institutional 1988, which covers planning development
framework lead to the development of activities and specifies Town Planners
different EIA systems. as the principal environment assessors.
The third EIA system, operated under the
In Nigeria, the principal legislation is the Petroleum Act, is an evolution from 1969
federal EIA law (previously Decree 86 of petroleum regulations in Nigeria [16].
1992)20 which made EIAs mandatory in
both the public and private sectors for The current practices of the three EIA
all development projects. The National systems in Nigeria are at different stages
Environmental Standards and Regulations of evolution, with the EIA system under
Enforcement Agency (NESREA), as an the Urban and Regional Planning Act not
agency under the Federal Ministry of the having evolved satisfactorily, while the
Environment, is the authority governing other two EIA systems (Petroleum Act and

20 Cap.E.12, Vol.6, Laws of the Federation of Nigeria 21 NESREA (establishment) Act, no.25, 2007.
(LFN) 2004. 22 New Cap. N 138, vol.12, LFN 2004.

28
 The division of competences between the
EIA Act) produced intricate legislations
national and sub-national level
and guidelines, but fell short of first-rate
practice [16,43]. Moreover the necessity As demonstrated with the examples of the
of operating three dissimilar EIA systems legal and institutional framework for EIAs
in Nigeria is questionable, in particular in Kenya, Oman, Lebanon and Georgia,
because the three systems are not mutually the EIA system is centralized in many
complementary, and sometimes permit countries, thus national environmental
seekers simply ignore one or other of the agencies are in charge of the EIA process
agencies [16]. or at least the EIA review, depending on
the division of competencies between
While the legislative provisions and environmental and sectoral agencies as
guidelines for EIAs in Nigeria are quite outlined above. Nevertheless, sub-national
comprehensive, it has been observed environmental government entities might
that there is a lack of implementing be involved at different stages of the EIA
mandatory requirements for EIAs, process, as will be highlighted in section
including no use of powers to impose 3.2 The different steps of the EIA process
fines, resulting in the development and with regard to each stage. In some cases,
operation of many projects. Furthermore, responsibilities in the EIA process are
a lack of coordination in the enforcement assigned to sub-national environmental
machinery is being observed, which entities due to the structure of the central
also obstructs implementation of the environmental agency in charge of the EIA
provisions. This in particular applies to the process. Thus sub-national environmental
assessment of public sector projects that agencies perform EIA relevant tasks, but
appear to have no, or only late, initiations of under the oversight of the central authority.
EIA studies. Being an in-house department This is, as outlined above, the case in China
for government projects, the requirement and Egypt.
of EIAs is at times ignored due to political
pressure [43]. Depending on the level of decentralization
of a country and thus the distribution of
The EIA procedure in Nigeria has thus been powers within a country, competences
described as characterized by a conflict related to EIAs are in many countries
of roles, mandates and responsibilities shared between the different levels of
among the different levels of governments; government. This is for example the case
federal, state and local government in Peru and in Canada.
authority: “The conflicts revolve around
overlaps, duplications, inconsistencies in the As a federation or federal state,
constitutional and legislative mandates and responsibility for law-making in Canada
foundation that govern the relationship of is shared among one federal, ten provincial
the three tier of government. Apart from this and three territorial governments. Whereas
conflict, accountability is a major setback in the provinces receive their power and
ensuring adherence to laws, norms, rules and authority from the Canadian Constitution,
procedures of EIAs” [54]. The federal EIA the territorial governments have their
law is currently under revision. powers delegated to them by the Canadian
Parliament.

SEA systems – Legal and institutional frameworks for SEAs 29

 Key points from the section on the division of competencies in the EIA
process
Three different approaches can be broadly distinguished:
• Centralized EIA decision-making: Central role of environmental agency or
department in EIAs. Sectoral agencies are consulted for review of the EIA
report. (E.g. Kenya; key challenges in implementation include a lack of capacity of
government agencies as well as poverty in the country)
• Specialized agency for EIA oversight: a specialized agency is charged with the
oversight of the EIA system in the country. (E.g. Peru, which until a recent reform
followed a sectoral approach)
• Sectoral approach: Central role of the sectoral agency responsible for the issuance
of a permit, in the EIA process, regularly consulting environmental agencies for
the review of the EIA report. (E.g. Egypt; limitation: the Competent Administrative
Authorities are not bound by the suggestions of the Egyptian Environmental Affairs
Agency)
Depending on the level of decentralization of a country and thus the distribution
of powers, competences related to EIAs are in many countries shared between the
different levels of government. (E.g. Canada)
In some cases, the division of competencies among different government
institutions are not clear or overlapping, which regularly hampers implementation.
(E.g. Nigeria)

The 2012 Canadian Environmental legislation. In such a case, environmental

Assessment Act, last amended in December assessments may be coordinated so that a
2014, and its regulations, establish the single environmental assessment meets the
legislative basis for the federal practice of legal requirements of both jurisdictions.
environmental assessment in Canada. The A responsible authority can also delegate
law applies to projects described in the any part of an environmental assessment
Regulations Designating Physical Activities that it is required to conduct to another
and to projects designated by the Minister of jurisdiction.
the Environment. A federal environmental
assessment may be required because of There are two types of environmental
the adverse environmental effects on areas assessment conducted under the Act:
of federal jurisdiction or that may result environmental assessment by a responsible
from a federal decision about the project authority23, and environmental assessment
(Article 13 and 14). Federal review is thus by a review panel24. Responsible
limited to areas of federal jurisdiction; a authorities can be the Canadian Nuclear
federal trigger, such as a federal permit or Safety Commission, the National Energy
use of federal funds is not required (legal Board or the Canadian Environmental
approach prior to the 2012 revision). Assessment Agency. An environmental
Some projects may in addition also require assessment by a review panel is conducted
a provincial/territorial environmental
assessment according to respective 23 Article 22-27.
24 Article 38-51.

30
by a panel of individuals appointed by (2)
Which particular set of EIA
the Minister of the Environment and requirements should be applied to the
supported by the Canadian Environmental specific proposal.
Assessment Agency. The Minister of
Environment may refer the environmental In the context of the European Union
assessment to a review panel in case he – and elsewhere, for example in Canada
or she is of the opinion that it is in the and the United States - this has meant
public interest. Criteria for determining that screening is the most heavily litigated
public interest include public concerns aspect of the EIA regime, giving rise to a
related to the significant adverse effects significant body of case law of the Court of
that the designated project may cause; and Justice of the European Union [5].
opportunities for cooperation with any
jurisdiction that has powers in relation Procedural steps in screening
to the environmental assessments25. Both Screening is regularly done based on
types of assessments can be conducted information provided by the project
by the federal government alone or in proponent when applying for an
cooperation with another jurisdiction, environmental permit or certificate
such as a province.26 required for project approval. In most
countries, detailed information on the
3.2 The different steps of the EIA required information is stipulated in
process legislation and in many cases, forms have
In the following sections, the different been developed that facilitate the capturing
steps of the EIA process, as outlined in of the information in an appropriate
figure 1 (highlighted in blue), will be format, often termed a project report or
presented, including case studies and environmental impact statement. This
illustrative examples from legal approaches sometimes includes an Environmental
implemented in countries around the Management Plan outlining potential
world. mitigation measures, as this enables the
authorities to assess whether, throughout
3.2.1 Screening the project cycle, significant impacts on the
The goal of screening is: “to determine environment will be avoided, and thus the
whether or not a proposal should be subject project can be approved without a full EIA
to [an] Environmental Impact Assessment being conducted. Many laws also stipulate
(EIA), and if so, at what level of detail” that where the information provided is not
[3]. Thus, screening is the preliminary sufficient to make the screening decision,
assessment of a development proposal to the authorities can (and should) request
determine: additional information.

(1) If an EIA is required or not, and; All of the above requirements are regulated
in Kenya by the Environmental (Impact
Assessment and Audit) Regulations 2003,
last amended in 2016, and complemented
25 Article 38 (2).
26 Government of Canada, Basics of Environmental by the EIA guidelines and administrative
Assessment. https://www.canada.ca/en/ procedures adopted by the National
environmental-assessment-agency/services/
environmental-assessments/basics-environmental-
Environment Management Authority
assessment.html [accessed on 16 June 2017]. in 2002. Whereas many laws require

SEA systems – Legal and institutional frameworks for SEAs 31

 Figure 1: EIA process flowchart, adapted from [55]

32
Table 3: Overview of section content related to EIA Screening

  Screening

Specific Requirement Consultation Right to Trans- Determining Cumulative General

issue of project appeal boundary the level of impacts exemptions
report/ EIS impact impact from EIA
requirements

Case study Kenya Kenya; EU; Georgia; Kenya, Panama; EU; Georgia;
countries Lebanon; Kenya, Canada Nigeria; EU; Nigeria;
and Nigeria; Denmark Tanzania; Austria; Indonesia;
illustrative Canada; Peru; Germany; India
examples* Vanuatu Panama; Japan
EU; Egypt;
Georgia

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

the involvement of certified experts Kenya, for example, copies of the project
to undertake an EIA, the Kenyan EIA report need to be shared with other
legislation is one of the few (along with for relevant lead agencies (e.g. the Kenya Forest
example Tanzania’s EIA law) that requires Service or Kenya Wildlife Service) and
the involvement of an environmental County Environmental Committees for
practitioner with a specified minimum their written comments.29 However, since
education plus related experience at the the National Environment Management
screening stage.27 Further, knowingly Authority does not always receive responses
providing false or misleading information from other agencies in time, it sometimes
is considered an offence and leads to the has to make a decision in the absence of
revocation of the environmental licence.28 full information [47].

In order to ensure that the necessary In Lebanon, the Ministry of Environment

information is available at the screening studies project reports through an ad-hoc
stage, several EIA laws include measures committee established for that purpose
to obtain information from sources other which, depending on the project nature,
than the proponent. In most laws that gathers representatives from different
include measures for consultation at the departments of the Ministry, the executing
screening stage, stakeholders are consulted agency (in terms of donor institutions)
at the “review stage” of the project report and other concerned government
(to be clearly distinguished from the review agencies.30 Whereas consultation of other
of the full EIA report (to be discussed in government stakeholders at the screening
section 3.2.4 Review and final decision), stage is legally required in several EIA
thus after the determination of the laws, in only a few countries do non-
competent authority that the information governmental stakeholders, or the public
provided fulfils the legal requirements. In in general, have to be consulted at this
stage. For example, a requirement for
27 Environmental (Impact Assessment and Audit)
Regulations 2003 of Kenya, Section 7 (3).
28 Environmental Management and Co-ordination 29 Environmental (Impact Assessment and Audit)
Act [1999] of Kenya, amended in 2015, Section 58 Regulations of Kenya [2003], Section 9.
(10). 30 2275/2009.

SEA systems – Legal and institutional frameworks for SEAs 33

 public consultation at the screening stage and Denmark.35 For more information
is included in the Nigerian and Canadian regarding public participation please view
federal law.31 The EU legislation does not section 3.2.3 Public participation.
require public consultation this early on in
the process, but does encourage it as good Since an EIA takes time, costs resources,
environmental practice.32 Similarly, the EIA and to a certain degree also brings
law of Vanuatu provides the option to seek uncertainty regarding the execution of the
comments from NGOs, any person who project, the screening stage provides an
may have a direct interest in the subject- incentive for the proponent to redesign the
matter, or other government entities, at the project plans to ensure the least impact on
screening stage.33 the environment (including through the
consideration of alternatives), thus averting
In most other countries such consultation the requirement for a full EIA. And even
at the screening stage is not provided if screening authorities are usually not
for, and regularly only takes place at allowed to formulate demands, screening
the review stage of the full EIA report can be seen to have a second function as
(where the screening decision requires the a regulatory instrument in its own right,
undertaking of a full EIA). Further, in a in particular when project proposals are
few cases, screening is not even considered adjusted following an agreement with the
a formal step or stand-alone decision in authorities [47].
the EIA process. This is for example, the
case in Georgia [52]. However, as in most While minimizing the environmental
cases, where screening is a stand-alone impact of a project is a desired outcome
decision according to the law, an increasing of the establishment of an EIA system,
trend is to make the screening decision it may however also incentivize people
public, state the reasons for requiring to circumvent the EIA requirement. A
or not requiring an EIA, and provide the major challenge in this regard is the issue
opportunity to appeal against the decision of project-splitting, commonly referred
– to the project proponent and/or other to as salami slicing, and defined as “the
stakeholders. The recent EU EIA Directive practice of splitting a project into a number
amendment for example includes the first of separate ones that individually do not
two measures34 and there is a right of appeal exceed the EIA screening threshold or do
against the screening decision in Kenya not have significant effects on a case-by-
case examination, and therefore may not
require [an] EIA, but might have significant
impacts when taken into consideration as a
whole” [56]. Legal approaches to address
this issue will be explored in the section on
31 cap.E.12, Vol.6, Laws of the Federation of Nigeria
(LFN) 2004, Article 16 (1) (c) and 21 (3) and
Canadian Environmental Assessment Act [2012],
last revised in December 2014, Article 9 and 10. 35 Kenya: Environmental (Impact Assessment and
32 Directive 2011/92/EU* of the European Parliament Audit) Regulations of Kenya [2003], Section
and of the Council of 13 December 2011 on the 10 (4) (appeal may be lodged by proponent to
assessment of the effects of certain public and the National Environmental Tribunal in case of
private projects on the environment, amended in dissatisfaction with decision that an EIA study
2014, Preamble no. 29. is required); Denmark: Act on environmental
33 Order 175, Article 3 (2). assessment of plans and programs and specific
34 EU Directive 2014/52/EU, Article 6 (2) b and projects (EIA) of Denmark, § 49 (regarding legal
Article 4 (5). issues).

34
Addressing the issue of project-splitting or precautionary principle, as an important
downsizing. principle of international environmental
law, being effectively applied.
Regarding the timeline for the issuance
of the screening decision, domestic legal In a national context, a different threshold
provisions vary and are not included in or set of EIA requirements might also be
all laws. The EU Directive for example applied for areas identified as sensitive,
stipulates that the timeline may not exceed such as protected areas or vulnerable
90 days from the date of submission of all marine ecosystems. In most cases, the
information by the developer;36 this is well (ecological) sensitivity of the project area
above the average duration of the screening is simply listed as an important factor to
process across the EU (1.2 months) [5]. be considered when determining impact.39
Similar to the EU average, the timeline In addition, projects within ecologically
for issuance of the screening decision in sensitive areas, such as nature reserves, or
Canada (federal level) is 45 days37, whereas in proximity of the same, might generally
for example in Mongolia it is considerably be subject to full EIAs.40
shorter at 14 days, with the possibility of
extension by another 14 days.38 With regard to the geographical focus of
determining impact, and as enshrined in
The preliminary assessment, or, the international Espoo Convention, many
determining the level of impact in project national laws include the obligation to
screening conduct an EIA before authorising certain
Project screening narrows the application activities that may have a“significant adverse
of EIAs to those projects that may have transboundary impact”. This includes the
significant environmental impacts, 45 Parties to the Espoo Convention41 and
as stipulated in Principle 17 of the Rio Georgia is for example currently revising
Declaration. ’Significant’ can be defined its EIA legal framework in preparation for
as “determining the relative importance accession to the Espoo Convention, thus
and acceptability of residual impacts (i.e., including the transboundary dimension
impacts that cannot be mitigated)” [3]. for impact assessment.42 Taking the

A key exception to this rule is enshrined in 39 E.g. EU Directive 2014/52/EU, Annex III 2,
the Antarctic Treaty regime, where a lower which includes a list of criteria to determine the
threshold is employed to trigger EIAs due to environmental sensitivity of geographical areas
likely to be affected by a project; the Environmental
the sensitivity of Antarctic areas. According Impact Assessment and Audit Regulations, 2005,
to the Protocol on Environmental of Tanzania, 2nd Schedule: Screening Criteria.
40 E.g. Prime Minister Decree no. 338 of the year
Protection to the Antarctic Treaty (the 1995 promulgating the Executive Regulations of
Madrid Protocol), EIAs are required the Law for the Environment of Egypt, Law no.
4 of the year 1994, Annex 2, 2nd standard; and in
where an activity has at least a ‘‘minor or India.
transitory impact” [57] his lower threshold 41 Convention on Environmental Impact
Assessment in a Transboundary Context.
is often cited as a good example of the https://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=XXVII-
4&chapter=27&lang=en [accessed on 18 June
2017].
36 Article 4 (6). 42 A new Law on Environmental Impact Permits and
37 Article 10. Ecological expertise was adopted at the time of
38 Environmental Impact Assessment Law of writing (in June 2017) and will enter into force on
Mongolia, 2012, Article 7 (4) and (5). 1st January 2018.

SEA systems – Legal and institutional frameworks for SEAs 35

 consideration of environmental impacts 1. The listing of factors/criteria for
in other countries (or even in areas assessing the likely impact on a case-
beyond national jurisdiction/the high by-case basis (positive and negative);
seas) a step further, the Canadian federal 2. The use of activity lists (for inclusion
EIA law (2012) also makes projects that or exclusion and with or without
are implemented outside of Canada and thresholds); or
that are to be carried out or financially 3. A hybrid of (1) and (2).
supported by a federal authority, subject to
an EIA.43 These two different approaches ((1) and
(2)) can be described as an environment-
The rationale behind focusing on centred approach, based on a judgement
‘significant impact’ is to balance of the likely significant impact on the
environment, and a development-centred
• the interest of the developer in approach, based on the size and/or type of
executing the project plans in development [58].
a timely manner and the often
limited resources of environmental It is commonly agreed that lists remove
authorities overseeing or managing the burden of case-by-case analysis on
EIAs; and the screening authority and minimize the
• the public interest of protecting the chance of ambiguity and corruption in
environment and efficient use of decision making [58]. At the same time, it
resources. is acknowledged that discretion in policy-
making is an important tool, in particular
The striking of this balance is the key for in a democratic system where different
an effective screening process. Thereby, parties need to find compromises [59].
part of the difficulty in making the In addition, the inherent challenge of lists
determination of the impact level at the is that they do not take into account the
screening stage is “an inevitably circularity individual circumstances of the case (e.g.
in making this determination, because whether the project is close to a sensitive
it requires the decision-maker to arrive ecological area), and that they incentivize
at a conclusion about the nature of the project downsizing just beneath the
environmental effects as a precondition capacity threshold level and project
to preparing a study that is aimed at that splitting. As a result, many domestic EIA
precise determination” [4]. legislation, adopts a hybrid approach to
determine the likely impact of a project. A
To mitigate this problem, by way of common approach is for example to make
conducting a preliminary assessment a full EIA mandatory for a certain type of
as to whether a full EIA is required, the activity and/or for activities above a certain
principle approaches applied in different capacity threshold (e.g. area size, emissions,
countries include: etc.), and to subject projects below the
capacity threshold to a preliminary impact
assessment on a case-by-case basis, taking
into account a list of factors/criteria. This
is for example the approach taken in
43 Canadian Environmental Assessment Act, 2012,
Kenya and in the Nigerian federal EIA law,
amended in 2014, section 68.

36
although in the case of the latter the law does natural resources and type of energy used
not provide guidance for determining the for operating an establishment. 48
level of impact.44 Therefore, in some cases
the list of criteria applied is the same as at In Georgia, the 2005 Law on Environmental
the scoping stage/full EIA assessment (e.g. Impact Permits establishes those activities
Kenya), whereas in other countries specific subject to mandatory ecological expertise
screening criteria have been developed (e.g. through the provision of a limited list
in Tanzania45, Peru46 and Panama47). In of activities, included in Article 4 of
Kenya, amendments to EMCA in 2015 have the law. However, many activities with
created a comprehensive list of activities significant potential adverse impacts on
that, mandatorily, have to undergo a full the environment (e.g. construction of
EIA study. However, this amendment radiation or nuclear facilities or mining
provides the National Environment activities) do not require EIAs and
Management Authority with discretion to ecological expertise under the present
direct a proponent to forego submission of legislation [52]. Under the new legislation
an EIA study report in certain cases. EIAs will be required for all the activities
listed in the EU directive.
In the European Union, Member States
are required to make projects belonging to Addressing the issue of project-splitting or
a certain type – as listed in the EU Directive downsizing
- subject to an EIA (Article 4 (1), Annex Approaches to avoid circumventing
I). For projects of other types included in the EIA requirement of activities
Annex II the Member States shall determine above a specified threshold, through in
whether the project shall be made subject particular project-splitting, include the
to an EIA (Article 4 (2)). Member States consideration of cumulative impacts
can make the determination based on a when determining impact on a case-by-
case-by-case examination or the setting case basis at the screening stage. This is
of thresholds criteria or a hybrid of both. the most common approach to address
Regardless of the specific approach taken, the issue, and the cumulative impact-
the selection criteria set out in the Directive consideration is for example included in
shall be taken into account (Annex III). the EIA law of Panama and the EU EIA
The detailed project lists and set of criteria Directive.49 However, despite the fact that
developed by the EU are often used as a the European Commission has also issued
point of reference in the literature. a guidance document on how to assess
cumulative impacts of projects and the
In Egypt, establishments that are subject existence of relevant court rulings, ‘salami-
to EIAs are set out in Annex 2 of the 1995 slicing’ is still frequent in new Member
EIA Regulations based on 4 standards: type States that recently joined the EU [60].
of establishment activity; location of the
activity; extent of an establishment’s use of Two examples of EU Member States that
address the issue in a detailed manner

44 Article 18. 48 Prime Minister Decree no. 338 of the year 1995
45 2nd Schedule. promulgating the Executive Regulations of the Law
46 Supreme Decree No. 019-2009-MINAM of Peru, for the Environment of Egypt, Law no. 4 of the
annex V. year 1994, Annex 2.
47 Executive Decree 123 of Panama, Title III, Chapter I. 49 EU Directive 2014/52/EU, Annex III, 1 (b).

SEA systems – Legal and institutional frameworks for SEAs 37

 in their national EIA legislation, include Another suggestion made to avoid
Austria and Germany. With regard to the practice of project-splitting is the
Annex 1 of EU Directive 2014/52/EU, which strengthening of SEA [56].50  This issue
includes a list of activities for which EIAs will be further dealt with in section 4 SEA
are mandatory, Austria’s EIA Act stipulates systems – Legal and institutional frameworks
that if projects fall below the threshold for SEAs. Finally, another legal measure that
values, or do not fulfil the criteria defined at least partially addresses down-sizing and
therein, but are spatially related to other which is included in most EIA legislation,
projects and, which do reach the relevant is to explicitly make amendments or
threshold value or fulfil the criterion, these modifications of EIA-approved projects,
projects will be subject to a case-by-case subject to EIAs. In India, expansion and
analysis due to a potential accumulation of modernization of existing projects that
effects. Similarly, Germany’s EIA Act also are subject to EIAs, or listed activities with
stipulates the obligation to perform an EIA addition of capacity beyond the limits
if several projects are closely related and specified for the concerned sector, are
together reach or exceed the relevant size subject to the EIA requirement.51 And in
or capacity figures [61]. Denmark, the developer must apply for an
EIA before the establishment, extension or
In order to address the issue of project- amendment of listed activities.52
splitting, an effective approach is to
explicitly include a prohibition on project- A comparison of criteria to determine
splitting in the EIA law. In this regard it has the level of impact or listed activities,
been noted that the recent Spanish EIA including project categories and capacity
Law is a step back from the previous law. thresholds adopted in different countries,
The repealed Law 6/2010 had an explicit is beyond the scope of this report. Such
reference to project splitting, indicating comparisons have, for example, been
that EIAs shall include the entire project undertaken by FAO regarding aquaculture.
and not only partial EIAs of each phase [62] And an emerging issue where there is
or part, but this requirement has not been much differentiation, is in relation to GHG
incorporated into the more recent Law emissions, with different EIA regimes
21/2013 [56]. requiring assessments on very different
levels. More broadly, it is widely recognized
Another approach to address the problem that climate change, as a global cumulative
of down-sizing or project splitting has been environmental effect, needs to be tackled
implemented in Japan, where the Ministry by impact assessments. With regard to
of Environment Japan created a ‘grey zone’ screening, suggestions include inclusion/
category for any projects that are slightly exclusion lists of project types, checklists
smaller than the size that requires an of environmental triggers for EIA, specific
EIA. In this case, the project developer/ criteria for climatically sensitive areas and/
proponent must consult the Ministry as or specified climate thresholds for projects/
to whether the proposed project needs an activities [63].
EIA or not, even though it is below the
stipulated capacity threshold of the EIA 50 Compare e.g. Environmental (Impact Assessment
requirement [44]. and Audit) Regulations of Kenya [2003], Article 4
(3).
51 Notification 2006.
52 Paragraph 18.

38
It should also be noted that criteria and General exemptions from EIA requirements
project lists that guide the determination
of the likely impact of a project, and which Most, if not all countries, also include
are often included in annexes to domestic general exemptions from the EIA
EIA legislation, are in many countries requirement in their legislation. Thus, as
subject to regular revision, reflecting opposed to mandatory project exclusions
advancements in technology, science as due to assumed non-significant impact,
well as changing political priorities. projects that are or can be exempted from
an EIA requirement for other reasons.
Kenya, for example, includes a new The most common exemption is for
category in its list of projects to undergo projects conducted within the framework
EIAs under the heading of “marine of a disaster emergency response. Other
resource exploitation and reclamation” examples of legal exemptions are as follows:
(high risk project).53
In the Member States of the European
In India, the main change in the screening Union, projects adopted by a specific act
criteria of 2006 was the adoption of of national legislation, serving defence
capacity based exclusions (spatial extent purposes, and projects having as their
of the proposed activity as well as its sole purpose the need to respond to civil
impacts on human health and natural emergency, may generally not be subject
and man-made resources) rather than to the EIA requirement, potentially under
the investment size of a project. Based on specified provisions to be adopted by the
capacity, projects are divided into A and Members States. Furthermore, Members
B categories and different set of rules are States may in exceptional cases exempt
applied. The Ministry of Environment & a specific project from the assessment
Forests deals only with category-A projects procedures laid down by this Directive,
and the State Environmental Impact subject to appropriate information being
Assessment Agency (SEIAA) under the supplied to the European Commission and
State Pollution Control Boards (SPCB) to the public concerned.
screens the category-B projects [58]. While
the adoption of capacity based exclusions With respect to projects to respond to
was generally welcomed, criticism voiced emergency situations it is important to
regarding the new regulation is that the highlight the possibility to conduct rapid
thresholds are too high and that the danger EIA (REA). A tool to identify, define,
of downsizing or project-splitting is not and prioritize environmental impacts in
sufficiently addressed in the regulation disaster situations [65].
[64].
In Georgia, under the 2005 legislation,
exempted activities from the detailed
process are not specified but an activity
may generally be exempted from EIAs if
common state interests require that the
activity be undertaken and the decision has
53 The Environmental Management and been made in a timely manner.
Coordination Act of Kenya no 8 of 1999, Legal
Notice no 150 Replacement of the Second
Schedule.

SEA systems – Legal and institutional frameworks for SEAs 39

 Key points from the section on screening

• Narrows the application of EIAs to those projects that may have significant
environmental impact;
• Regularly done based on information provided by the project proponent and in
the form of a project report or environmental impact statement;
• The principle approaches for conducting a preliminary assessment include an
environment-centred approach (listing of factors/criteria for assessing the likely
impact), a development-centred approach (listing development activities) and a
hybrid between the two;
• Whereas consultation of other government stakeholders is legally required in
several EIA laws, in only a few countries do non-governmental stakeholders or the
public in general have to be consulted at this stage;
• There is an increasing trend to make the screening decision public, to state the
reasons for requiring or not requiring an EIA, and to provide the opportunity to
appeal against the decision;
• Provides an incentive to redesign the project plan to ensure the least impact on
the environment in order to avoid the requirement for a full EIA; however, it may also
incentivize people to circumvent the EIA requirement e.g. through project-splitting/
salami-slicing (linked to the issue of cumulative impacts).

The Minister of Environmental Protection spatial plan and/or a district/city strategic

takes the decision on exemptions from area spatial plan. The law also stipulates
EIAs. Recommendations are provided that for activities which are exempted from
by a special council on Environmental EIAs, an EMaE-EMoE (environmental
Impact that is formed by the Ministry of monitoring and management study) shall
Environment, but without the elaboration be prepared.54
of further guidance. Thus, in principle any
activity can be exempted but in practice In India, Small Scale Industry (SSI)
this provision has been used only in some was an outright exemption from EIAs
cases and usually in connection with small under the 1994 EIA law. Following the
hydropower projects, in the case of road revision of the law in 2006 SSI are still
construction, and a landfill project in the given this concession if they are located
capital [52]. inside industrial estates [58]. Moreover,
a recent notification by the Ministry of
In Nigeria, projects are exempted if the Environment and Forests and the Ministry
project is in the interest of public health or of Urban Development exempts real estate
safety (Article 14 EIA law). projects of all sizes from the process of EIA
and prior environmental clearance. The
In Indonesia an activity can be exempted policy was motivated by a push for greater
from the obligation to conduct an EIA if decentralization, delegation of powers and
the location of the activity is within an enhancing the ‘Ease of Doing Responsible
area that has had an EIA already; or the
location of the activity is within a district/ 54 Article 13 of the 2012 Regulation on
city that has already adopted a detailed Environmental Permits.

40
Business’ a pet scheme of the current impact, thus the most comprehensive EIA
government, as well as providing affordable process.
houses under the scheme of Housing for
all by 2022. However, the notification has The objective of introducing scoping
been challenged in front of the National as a formal step in the EIA process is to
Green Tribunal.55 ensure that the final EIA report, which
contains the result of the assessment and
3.2.2 Scoping and impact analysis thus forms the basis for decision-making,
Once a decision has been made that a (full) fulfils its purpose. The determination of
EIA needs to be undertaken, determining what to focus on when predicting impact
the scope of the EIA including which is key, as it is neither useful nor possible
specific impacts need to be considered, to try to address all aspects. There is a
is generally referred to as scoping. The need to maintain a good balance between
legal process which needs to be followed comprehensiveness and efficiency in order
is generally already determined by the to effectively predict the impact on the
screening decision, in particular if different environment. Thereby, the ideal is to focus
assessment processes are foreseen by law. “as much as possible on the environmental
issues that are truly likely to have a significant
In Peru, for example, the law distinguishes impact on the environment” [4], while it is
between three project categories. Category-I also recognized that this will not always
projects, where only an Environmental be a straightforward exercise, particularly
Impact Statement (EIS) needs to be given data gaps and general scientific
prepared, because of the expected low uncertainty regarding environmental
environmental impact generated by the outcomes. A lack of reference to
project; category-II projects which need environmental services may for example
to undergo a semi-detailed Environmental lead to a lack of assessment and thus a
Impact Study (EIA-sd) because of their potential barrier to the consideration
expected moderate impact; and category- of ecosystem-based adaptation options
III projects which need to undergo a (/nature-based solutions) for climate
Detailed Environmental Impact Study resilience on a ‘level playing field’ with
(EIA-d) because of their expected other options.
significant environmental impact. Since
an EIA is only undertaken for category-II Effective scoping can also address
and III projects, scoping is only required challenges such as the tendency of
for these, with a different set of rules consultants to produce excessively long,
applying for each type of project. expensive and time-consuming studies as
well as lack of guidance at the review stage
This report generally focuses on the process of the EIA process. The latter is regularly
for projects with an expected significant achieved through the development of
terms of references (see below) for the EIA
report against which the final report can be
55 The Times of India. NGT notice to environment assessed [4,66].
ministry over realty projects (1 January 2017).
http://timesofindia.indiatimes.com/home/
environment/developmental-issues/ngt-notice- Most national EIA frameworks include
to-environment-ministry-over-realty-projects/
articleshow/56311120.cms, accessed on 6 May
specific regulations relevant to scoping.
2017. However, this is not the case in all

SEA systems – Legal and institutional frameworks for SEAs 41

 countries (e.g. in Georgia, where scoping with relevant authorities)60. In several other
is not considered a formal step in the EIA countries where public participation is
process under the 2005 legislation [52]) required at the assessment stage, the terms
and the details of the guidance provided for public participation to be undertaken
also vary. A scoping decision is also not by the project proponent are agreed upon
mandatory for the Member States of at the scoping stage.61 The preparation
the European Union according to EU of a plan for public participation before
legislation56, even though most Member the comprehensive assessment begins is
States made it a legal requirement in their considered important in order to avoid a
national EIA laws. Moreover, in some cases, pure focus on the technical aspects of the
and regularly where a detailed screening EIA as well as to facilitate the review of the
decision is required, the screening decision EIA process regarding public participation
is considered to fulfil the function of [1]. Public participation at the scoping
scoping.57 stage allows for the public to have influence
on the development of the plan for public
In most national legislation with a scoping participation and, regarding the technical
requirement, the determination about parameters, to bring forward issues to be
process and content for each individual EIA considered in the assessment that otherwise
is undertaken through the development of might be neglected. A crucial role can also
Terms of Reference (ToR).58 These also be played by stakeholders in highlighting
serve the purpose of guiding the review of alternatives in relation to project design
the EIA, as well as the transparency of the and implementation. More information
process. on public participation in the EIA process
will be provided in section 3.2.3 Public
In recognition of the importance of participation.
scoping, some countries provide for public
consultation at the scoping stage (e.g. in Many laws also include requirements
Canada or Indonesia)59, or leave it at the for consultation with other government
discretion of the competent authority to entities. For example the EIA Directive of
do so (e.g. in Vanuatu, and in cooperation the European Union makes it mandatory
for Members States to ensure that the
authorities likely to be concerned by
56 Article 5 (2). the project by reason of their specific
57 E.g. Environmental Impact Assessment Law of environmental responsibilities or local and
Mongolia, 2012, Article 8.1.
58 E.g. Act on environmental assessment of plans and regional competences are consulted.62
programs and specific projects (EIA) of Denmark
[2016], Paragraph 23; Canadian Environmental
Assessment Act [2002], last revised in 2014,
Article 19 (2); Act 12 of 2002 on Environmental
Management and Conservation of Vanuatu, last
revised in 2010; Article 19; Decree 2013/0171/PM
of Cameroon, Article 8; The Law of the People’s
Republic of China on Environmental Impact
Assessments [2002], Article 17; Environmental
Impact Assessment Law of Mongolia, 2012, Article
8.1; Environmental Impact Assessment System Act
of Peru [2001], revised in 2008, Article 7.1.c. and 60 Environmental Impact Assessment Regulation of
in the Regulation of the Environmental Impact Vanuatu, Order 175 of 2011, Article 5.
Assessment System Act of Peru [2009], Article 40. 61 E.g. The Environmental Management Act of
59 Regulation on Environmental Permits of Tanzania, 2014, Article 85 (1) b).
Indonesia, Article 9 (1) 62 EIA Directive, Article 6 (1).

42
Table 4: Overview of section content related to EIA Scoping

  Scoping

Specific ToR Consulta Responsibil- Content Alternatives Cumulative EMPs Mitigation Offsetting
issue tion ities require- impacts hierarchy
for ments
preparing for assess-
EIAs ment

Case study Denmark; Canada; USA; China; Bhutan; Vanuatu; Vanuatu; South Africa; Brazil,
countries Canada; Indonesia; Cameroon; Oman; Denmark; Bhutan; Mongolia; Indonesia; Mexico;
and illus- Vanuatu; Vanuatu; Peru; Tanzania; EU; Kenya; Panama; Oman; Columbia;
trative China; EU Oman; Mongolia; Mongolia; Brazil, South State of Australia;
examples* Mongolia; Lebanon; EU; Kenya; Canada; Africa; Kosrae, Canada;
Peru Fiji Kenya; Brazil Mongolia Oman Micronesia South
Bhutan; Africa;
India Austria;
France;
Germany

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

Key points on scoping

• Aims at ensuring that the final EIA report can fulfil its purpose as an adequate
basis for decision-making;
• Most national EIA frameworks include provisions on scoping, but the details of
the guidance provides varies considerably;
• It is neither useful nor possible to address all aspects, thus maintaining a good
balance between comprehensiveness and efficiency is key;
• Effective scoping can address challenges such as the tendency of consultants to
produce excessively long reports;
• The scoping decision provides guidance at the review stage of the EIA process, in
particular if terms of references have been drafted;
• Only some countries provide for public consultation at the scoping stage, but
where public consultation is required at the assessment stage, the terms of public
participation are agreed upon at the scoping stage.

Responsibilities for preparing EIAs Oman, Lebanon and Indonesia. In Fiji,

Whereas in some jurisdictions a registered consultants pay an annual fee to
government agency is responsible for operate as an EIA consultant.
conducting EIAs (for example in the USA),
the responsibility to conduct EIAs in the In Indonesia, the preparation of Amdal
majority of countries lies with the project (EIA) documents must be done by
proponent. However, many national laws individuals who have a certification of
require the use of government licenced competence. This is obtained after a
or registered consultants or agencies. specified training program established
This is for example the case in Vanuatu, under the oversight of a certification body
Cameroon, Peru, China, Mongolia,

SEA systems – Legal and institutional frameworks for SEAs 43

 composed of members appointed by the in non-binding guidelines (for example
Minister of Environment.63 Oman)66, and EIA laws of many other
countries provide more detailed provisions
A number of laws also include provisions (for example in Tanzania)67. In some cases
on the (administrative or criminal) specific requirements are stipulated for
liability of consultants. In Mongolia, the specific sectors (for example the EIA law
EIA law for example provides that should a of Mongolia includes detailed content
completed EIA be found inadequate at the requirements for “oil, mining and radioactive
review stage, the licence of the respective minerals projects”)68. Defining standards on
entity shall be cancelled and made subject content can overcome challenges such as
to the imposition of a fine.64 a practice of ‘cut and paste’ in EIA reports
from existing reports, regardless of the
The objective of all these requirements relevance to the assessment in question [47].
is to ensure that all individuals involved
in the assessment are adequately trained Regarding the determination of the
and thus capable to prepare a high quality environmental impact in general, and
EIA. At the same time, the commissioning as already pointed out in section 3.2.1
of external assessors seeks to ensure the Screening, a common legislative approach is
independence of the experts hired. This to include a list of factors to be considered
requirement may however cause challenges in order to guide the identification of likely
in some countries, since it relies upon the effects of a project based on a number of
existence of a well-qualified, independent issues.69 Therefore, some laws explicitly
private consulting sector. For example require the taking into account of direct
the Republic of Maldives is particularly and indirect significant effects (e.g. in the
challenged in this regard, because it has a European Union, Kenya and Bhutan),
small population and most of its qualified as well as negative and positive impacts
environmental professionals work within (e.g. in Bhutan and India). This fosters
the government [67]. the enhancement of positive impacts of
environmental projects such as those
Content requirements Environmental related to ecosystem-based adaptation
analysis or nature-based solutions for climate
Content requirements for the assessment itself mitigation, in particular when considering
are regularly defined in national legislation, alternatives [68–72].
but with varying levels of detail. Whereas in
some countries the EIA laws contain rather With regard to specific factors or
brief EIA content requirements, and thus environmental issues that can be
require these to be defined in each individual considered in an EIA, the following criteria
case (for example in China)65, some have are highlighted the most in the (recent)
more detailed requirements contained literature, in part due to their relevance in

63 Government Regulation no. 27 of the Republic 66 MECA Guidelines for obtaining environmental
of Indonesia of 2012 about Environmental permits.
Permissions, Article 11. 67 The Environmental Impact Assessment and Audit
64 Environmental Impact Assessment Law of Regulations of Tanzania, 2005, Article 16 and 18.
Mongolia, 2012, Art. 19.1.4. 68 Environmental Impact Assessment Law of
65 The Law of the People’s Republic of China on Mongolia, 2012, Article 8.4.6.
Environmental Impact Assessments [2002], Article 17. 69 E.g. Canada, Article 5 (1) and EU and xxx.

44
the international policy arena (see section sacrificing the flexibility needed in order to
2.1 Global developments): undertake each individual EIA.

• Biodiversity and ecosystem services; Guidelines on specific issues related to

• Climate change (mitigation and their mandate have also been developed
adaptation); by international or regional environmental
• Risks of accidents and disasters;70 agreements, such as the CBD Voluntary
• Social impacts, including indigenous Guidelines on Biodiversity-Inclusive
and local communities; Impact Assessments. Guidelines on EIAs
• Community and traditional in a transboundary context have been
knowledge; developed for the Caspian Sea Region
• Population and human health; (2003) as well as for Central Asian
• Transboundary effects; and Countries (2007 draft) under the umbrella
• The marine environment. of the Espoo Convention. Related to
emergency situations, guidelines for
It is common practice to briefly describe natural hazard impact assessment (NHIA)
or list the different factors in legislation, and their integration into EIA procedures
and then to issue complementary non- have for example been developed by the
binding guidelines on how to carry out Caribbean Development Bank in 2004;
the assessments with respect to some of and a framework for rapid EIA has been
them. The European Union, for example, developed by the United Nations High
issued guidance on integrating climate Commissioner for Refugees (UNHCR)
change and biodiversity into EIAs.71 This and CARE International.
approach recognizes the complexity of
assessing many of these aspects; the need A comprehensive review of legal assessment
to tally the individual assessment approach criteria or environmental aspects in
and methodology to the specific project national legislation is beyond the scope of
and its environmental circumstances; this paper. Thus in the following only a few
and rapid and continuing advances in examples will be presented.
assessment methodologies and approaches
which can be addressed in a timelier The adoption of the Climate Change Act
manner through revision of guidelines in Kenya in 2016, illustrates an example
than legal reform. The adoption of non- where requirements for impact assessments
binding guidelines complementary to are included in national legislation other
legislative (minimum) requirements thus than the EIA law. The Climate Change
gives the option of providing detailed Act makes it mandatory for the National
guidance in order to facilitate assessments Environmental Management Authority,
with regard to specific issues, without the national authority that is also in charge
of the EIA process, to integrate climate
risk and vulnerability assessments into all
70 See the Sendai Framework of Disaster Risk forms of assessment, and for that purpose
Reduction endorsed by UNGA resolution 69 in to liaise with relevant lead agencies for
2015 (A/RES/69/238).
71 European Commission. Guidance on Integrating their technical advice.72
Climate Change and Biodiversity into
Environmental Impact Assessment, 2013. http://
ec.europa.eu/environment/eia/pdf/EIA%20
Guidance.pdf. 72 Climate Change Act, No. 11 of 2016, Section 20.

SEA systems – Legal and institutional frameworks for SEAs 45

 In the EU, the EIA Directive lists of the European Union, for example,
biodiversity, human health and climate makes explicit reference in its preamble
change (adaptation and mitigation), to the requirements of the Convention on
amongst others, as factors to be considered Biological Diversity, the Birds and Habitat
in the assessment. Directive of the European Union as well
as the Union’s Biodiversity Strategy up to
In Canada, with respect to aboriginal 2020.
peoples, environmental effects that are to be
taken into account in EIAs are : health and Many of the individual factors, in
socio-economic conditions; physical and particular biodiversity and human health,
cultural heritage; the current use of lands as well as climate risk and/or climate
and resources for traditional purposes; or change, are often discussed in the context
any structure, site or objective that is of of considering alternatives as well as the
historical, archaeological, paleontological need to consider cumulative impacts of
or architectural significance. In addition, multiple developments.
the environmental assessment of a
designated project may take into account The consideration of alternatives in EIAs,
community knowledge and aboriginal i.e. the many ways in which a project could
traditional knowledge. To facilitate be implemented (in terms of alternatives
the implementation of the provision, a to a specific project as well as alternative
reference guide has been developed by the project design), is widely considered as
Government of Canada.73 key to identify project designs with the
lowest impact on the environment and is
As a final remark regarding the different consequently a mandatory consideration
factors to be considered according to in many national laws74. However, some
national legislation, the link to the national, countries, including Georgia and China,
regional and international policy agenda have no legal requirement to consider
should be highlighted. As already pointed alternatives. In a few countries, such
out, an EIA can, in particular in the case as Brazil, a further requirement is to
of a larger and complex project, never be explicitly evaluate the “no-project” option
fully comprehensive, thus a focus on the [73]. However, most recently a reform
key issues identified is required. These are proposal has been brought forward that
determined by a country’s policy agenda. would not only erase the requirement,
A number of national EIA legislation but would also ban the option to suspend
therefore include specific provisions to take or cancel a project once an EIA has been
into account environmental effects focused submitted [74]. It is however observed
on in policy documents. The EIA Directive that a general statutory requirement to
consider alternatives as included in most
legal frameworks appears to only lead to
73 Reference guide for Considering Aboriginal a superfluous assessment and that non-
traditional knowledge in environmental compliance is widely tolerated [75].
assessments conducted under the Canadian
Environmental Assessment Act, 2012.
(https://www.canada.ca/en/environmental-
assessment-agency/services/policy-guidance/
considering-aboriginal-traditional-knowledge-
environmental-assessments-conducted-under-
canadian-environmental-assessment-act-2012. 74 Bhutan, India: in technical guidelines, Denmark,
html . Mongolia, Kenya, Article 18.

46
The 2014 revision of the EIA Directive policy statement on Assessing Cumulative
of the European Union aimed amongst Environmental Effects under the Act as
other things to facilitate the review of well as Technical Guidance for Assessing
EIA reports and compel compliance. Cumulative Environmental Effects.75
Therefore, an important revision targeted
the provision to consider alternatives in In Mongolia, the “cumulative impact
the assessment. Instead of an ‘outline of assessment” was even made a separate
the main alternatives’ (as required under process of impact assessment in parallel
the pre-existing Directive), the Directive to EIA in 2012. According to the law,
now makes it mandatory to include ‘a cumulative impact assessment shall
description of the reasonable alternatives mean “determination of the joint and
studied by the developer’ and main reasons repeated adverse impacts on the public
for their choice [5]. health caused by the projects implemented
by the citizen, entity and organization
As already outlined in section 3.2.1 throughout the certain area and define the
Screening, the consideration of cumulative methods and actions that assist elimination
impacts in the EIA is a legal requirement and mitigations of such impacts”.76 The
in many countries (e.g. Vanuatu, Bhutan, public authorities are required to conduct
Kenya and Brazil). According to Craik, the assessment according to specified
“cumulative effects assessment requires procedural requirements, which were
the project proponent to consider not only adopted in 2013, and at the cost of the project
the impacts from their project by itself, proponents.77 The need to conduct the
but also how the effects of the project, assessment is determined by the Ministry
when combined with the effects from other of Environment and Tourism. To date there
projects, will impact the environment” is very little experience of undertaking
[4]. The concept of ecosystem services cumulative impact assessments and
can also help in addressing cumulative capacity building is needed. In total, 4
impacts; thus there is a general need to cumulative impact assessments have been
better measure ecosystem services in conducted for 4 different mining regions
impact assessments. However, in several (1 per year starting in 2013). In addition,
countries there is no mention of the issue currently the assessment only covers public
of cumulative impacts (e.g. China) and health. However, a legal amendment has
even where it is included, as highlighted in been proposed to include environmental
section 3.2.1 Screening, provisions are often considerations more broadly and it is
criticized as not effective. Thus, in some
countries additional measures have been
75 Federal EIA law of Canada, xxx, Article 4 (1);
implemented. For example: https://www.canada.ca/en/environmental-
assessment-agency/news/media-room/
media-room-2015/assessing-cumulative-
In Canada, encouraging the study of environmental-effects-under-canadian-
cumulative effects of physical activities environmental-assessment-act-2012.html;
https://www.canada.ca/en/environmental-
in a region and their consideration in assessment-agency/services/policy-guidance/
environmental assessment, has not only technical-guidance-assessing-cumulative-
environmental-effects-under-canadian-
been made an explicit purpose of the environmental-assessment-act-2012.html.
federal EIA law, but the Government 76 Environmental Impact Assessment Law of
Mongolia, 2012, Article 3.1.5.
of Canada also adopted an Operational 77 Environmental Impact Assessment Law of
Mongolia, 2012, Article 6.

SEA systems – Legal and institutional frameworks for SEAs 47

 anticipated that Parliament will adopt the consist of the environmental protection
amendment before the end of 2017. plan and environmental monitoring plan
and importantly the latter shall include
EIA Recommendations the methods of implementation, required
Content requirements not only cover funding, cost and timeframe.79
environmental factors to be considered
in the assessment, but also include An explicit reference to the mitigation
requirements related to project design and hierarchy80 is not generally included
implementation, including mitigation, in national EIA laws, which is widely
monitoring and reporting measures. regarded as a severe shortcoming given
the objective of the EIA process. [44] The
In China, for example, it is a legal mitigation hierarchy places preference on
requirement that mitigation measures for avoidance of adverse effects, followed by
each likely adverse environmental impact minimisation, followed by restoration and,
should not only be considered during if required, the compensation or offsetting
scoping, but that installations for the of residual effects [76,77]. Only a number
prevention and control of pollution at a of non-binding national EIA guidelines
construction project must be designed, include a specific reference (for example
built and commissioned together with the in South Africa, Indonesia, Oman and
principal part of the project and that they the State of Kosrae, Federated States of
must comply with the requirements of the Micronesia). EIA guidelines issued by some
approved EIA report.78 international or regional organizations do
however include reference to the mitigation
In many countries it is a legal requirement to hierarchy, such as the CBD Guidelines and
develop an Environmental Management the IFC performance standards. Despite a
Plan (EMP). This is for example the case general absence of an explicit reference to
in Vanuatu, Mongolia, Panama, South the mitigation hierarchy in EIA legislation
Africa and Oman (in case of the latter or EIA guidelines, application of the
only in non-binding guidelines). Where mitigation hierarchy, including through
an Environmental Management Plan is biodiversity offsets, is increasingly seen as
required, it is further regularly stipulated good practice for balancing development
that it forms an integral part of EIA and conservation goals and Government
approval and thus its content is binding for offset policies now exist across the world, in
the project owner/implementer, regularly both developed and developing countries.
through the establishment of conditions The mitigation hierarchy is regularly
in case of EIA approval. adopted together with targets of no net
loss or a net gain in biodiversity and
The 2012 EIA law of Mongolia contains requires the quantification of impacts and
detailed requirements regarding the associated mitigation measures in order
development of an Environmental
Management Plan when conducting a 79 Law of Mongolia on Environmental Impact
detailed environmental impact assessment. Assessments, Article 9.
80 The mitigation hierarchy is the sequence of actions
The Environmental Management Plan shall to anticipate and avoid impacts on biodiversity
and ecosystem services; and where avoidance
is not possible, minimize; and, when impacts
occur, rehabilitate or restore; and where significant
78 Article 41 EPL. residual impacts remain, offset. (CSBI 2013)

48
to provide assurance that these targets are adopted World Bank’s Environmental and
met. Social Safeguards Framework [76]. The
expanding adoption of natural capital
Government offset policies in developing accounting frameworks may also support
countries are being driven by their further uptake of these policies as well
inclusion in international standards, such as their implementation, as this would
as the IFC performance standard 6 and improve data and metrics for quantifying
may be further supported by the newly impacts.

Key points related to scoping and impact analysis on:

1. Report preparation
• Many national laws require the use of government licenced or registered
consultants or agencies
• A number of laws also include provisions on the (administrative or criminal)
liability of consultants
2. Content requirements
• Are regularly defined in national legislation, but with varying levels of detail;
• A common legislative approach is to include a list of factors to be considered in
order to guide the identification of likely effects of a project, e.g. biodiversity;
• In order to provide more detailed guidance, but without sacrificing the flexibility
in undertaking each individual EIA, complementary non-binding guidelines
on specific issues are being adopted, e.g. on integrating climate change in EIA or
biodiversity-inclusive EIA;
• Many of the individual factors, in particular biodiversity and human health, as
well as climate risk and/or climate change, are often discussed in the context of
considering alternatives as well as the need to consider cumulative impacts of
multiple developments;
• The consideration of cumulative impacts in the EIA is a legal requirement in
many countries and the concept of ecosystem services can help in assessing
cumulative impacts; however, existing provisions are often criticized as not
effective.
3. EIA recommendations
• In many countries it is a legal requirement to develop an Environmental
Management Plan (EMP).
• Where an Environmental Management Plan is required, it is further regularly
stipulated that it forms an integral part of EIA approval and thus its content is
binding for the project owner/ implementer, regularly through the establishment
of conditions.
• An explicit reference to the mitigation hierarchy, is not generally included in national
EIA laws, which is widely regarded as a severe shortcoming given the objective of the
EIA process. Nevertheless, application of the mitigation hierarchy, including through
biodiversity offsets, is increasingly seen as good practice.

SEA systems – Legal and institutional frameworks for SEAs 49

 In Brazil, for example, projects subject to 3.2.3 Public participation
environmental licensing must offset their
impacts on protected areas81. In Mexico ‘‘How we decide and who gets to decide often
the Sustainable Forest Development Act determines what we decide.’’ [81]
of 2003 requires offsets for impacts that There is a wide consensus that public
result in land-use change to forested areas. participation constitutes a fundamental
The recently enacted Environmental element of EIAs – or in fact even that EIA
Liability Act (2013) also requires offsets, is not an EIA without public participation
but only when impacts are not predicted [1,6,82,83]. It is also widely recognized
or approved in the EIA and are deemed an that public participation is not only a goal
environmental offence. And in Colombia in itself, but that it is a key to accurate
projects subject to EIA must in particular and effective environmental assessments
offset their impacts on terrestrial [6,83,84].
ecosystems and freshwater [78].
Nevertheless, there is no general agreement
Further, progressive national offset policies in the literature on what constitutes good
have been adopted in Australia, Canada, practice in relation to public participation
South Africa, Austria, France and Germany in EIAs and there is also no coherent use of
and a database on offset policies globally terminology such as public participation,
has been developed and is currently being involvement and consultation [83,85].
updated by the Biodiversity Consultancy Is it for example sufficient to publish a
[76,79]. project proposal subject to an EIA and
provide the option to submit comments,
Observed legislative shortcomings or is it necessary to organize a face-to-
with regard to biodiversity offsets face meeting where the planned project,
include (1) the emphasis on area- and predicted impacts and mitigation measures
habitat-based assessment methods for are presented and discussed? But who needs
biodiversity and ecosystem services instead to be invited to the meeting? How far does
of functional assessments at landscape or the provided feedback and input need to be
seascape scales; (2) the absence of a clear considered in the decision on the project?
recognition of and strong requirements And does the opportunity to participate
for the establishment of avoidance areas end with a decision on EIA approval? Thus,
before specific projects are considered while there is a consensus on the need for
(in implementation of the mitigation public participation, different opinions
hierarchy); and (3) the fact that many prevail on what mechanisms fulfil the
countries focus on the impact assessment requirements for public participation as
stage in their legal requirements, failing well as who “the public” is. Consequently, it
to require compensatory mitigation for has been observed that there is no common
allowed impacts [80]. understanding of public participation in
EIA practice [83]. Moreover, it is probably
safe to assume that it won’t be possible to
achieve a consensus across the globe and
among the different stakeholder groups.
At the same time, a continuous discourse
and exchange in the literature and in EIA
81 Law 9.985/2000. practice will be essential to critically review

50
the measures in place in different countries environmental decisions-making are either
and to further enhance public participation included in environmental framework laws
and thus EIA processes. After all, the (for example in China)82 and/or specific
reasons for the diverging opinions are EIA laws (for example in Canada)83 and/
mostly rooted in different understandings or sectoral laws. Many laws also specifically
about fundamental concepts of what highlight the importance of public
constitutes good governance and thus build participation in the EIA process or include
upon different cultural and political norms it specifically as one of the objectives of the
in different regions, countries and cultures law. Only in a very limited number of cases
– and thus importantly, evolve over time. is public participation not a mandatory
Much of the criticism voiced with respect requirement such as in Oman, where the
to public participation in EIA processes is requirement for public participation is
therefore linked to wider criticism about only included in non-binding Ministerial
the political environment and distribution guidelines, but nevertheless considered to
of powers in a country or region, as well as be an important component of an open
the fact that generally the issue of public and balanced EIA process, and in Nigeria,
participation in policy making is often where there is no mentioning of public
highly contested and political [18,85]. participation in the Urban and Regional
Planning Act [16]. In Egypt, public
Since the purpose of this report is to participation is only mandatory for mega
present the wide range of legal approaches projects, otherwise public participation is
to EIA and thus in this section to public only dealt with in in technical guidelines.
participation in EIAs, a broad definition
is used according to which ‘public However, many countries include
participation’ is “any form of interaction exceptions from the requirement to
between government and corporate actors conduct public participation, or at least
and the public that occurs as part of EIA the level of participation required varies.
processes” [85]. And while this section Whether public participation is required
focuses on formal public participation due or not, and if so, at which stage of the EIA
to the focus of the report on the legislative process and through which mechanisms,
framework, the impact that informal public is regularly linked to the categorization
participation can have on EIA outcomes of projects at the screening stage, which
should also be highlighted. An example generally determines the need for and
is the social protest that contributed to scope of an environmental assessment,
the shutdown of a gold mine in Costa including public participation. In many
Rica after already having been issued an cases public participation is only required
environmental permit, followed by the ban when a full EIA needs to be conducted.
of mineral open-pit mining in the country At the same time, some legislation also
in 2010 [83]. stipulates that public interest, and thus a

Due to the fact that public participation

is considered an integral part of the 82 Environmental Protection Law of China, 2016,
chapter V Information Disclosure and Public
EIA process, all countries have enacted Participation.
some kind of legal measure for public 83 Environmental Assessment Act of Canada, 2012,
according to which the provision for meaningful
participation in EIAs [1,83]. Obligations public participation during an environmental
related to public participation in assessment is also an explicit purpose of the Act.

SEA systems – Legal and institutional frameworks for SEAs 51

 Key points on public participation

• Public participation constitutes a fundamental element of EIAs;

• It is not only a goal in itself, but it is a key to accurate and effective environmental
assessments;
• While there is a consensus on the need for public participation, different opinions
prevail on what mechanisms fulfil the requirements for public participation as
well as who “the public” is;
• Much of the criticism voiced with respect to public participation in EIA processes
is linked to wider criticism about the political environment and distribution of
powers in a country or region;
• Due to the fact that public participation is considered an integral part of
the EIA process, all countries have enacted some kind of legal measure for
public participation in EIAs. Only in a very limited number of cases is public
participation not a mandatory requirement. However, many countries include
exceptions from the requirement to conduct public participation, or at least the
level of participation required varies.

Public participation at the different stages of the EIA process

Table 5: Overview of section content related to Public Participation in EIA

  Public participation

Specific Participation at different EIA stages Definition Implementation

issue of the challenges
Screening Scoping Review and Follow-up public and response
and decision- measures
impact making
analysis

Case study Canada; Peru; Indonesia; India; China; Indonesia;

countries and Nigeria Indonesia; Kenya; Kenya; Kenya; Canada; EU;
illustrative Denmark; China; China; Fiji; Nigeria; China;
examples* Kenya; Georgia; South Denmark; Egypt; Pacific
Oman Peru; India; Africa Costa Rica;
Nigeria; Nicaragua;
Canada Canada;
Peru

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

need for public participation, can trigger making of the competent authority.
the need to conduct a full EIA. However, it is argued that public
participation is most effective if it takes
Many EIA laws require public participation place at the earliest stage possible, thus
“only” at the assessment and/or review ideally at the screening stage [13,82].
stage, thus when an EIA report has been After all, it is here where it is determined
developed and prior to final decision- whether an EIA needs to be undertaken

52
and according to which set of rules – well as in some cases politicization of the
including as pointed out above whether environmental assessment process [43].
public consultation needs to take place at
subsequent stages and by which means, or A number of countries also require public
whether it is not required to do so. Whereas participation at the scoping stage86, or
most legislation makes it mandatory to generally state that public participation
publish information on the project when should take place at all stages of the EIA,
an application is submitted, only a few as in the case of Peru87. Whereas the legally
explicitly require the public to be involved binding requirements for the EIA process
at this screening stage, and mostly through are determined through the categorization
the opportunity to submit comments. of the project at the screening stage, it is
at the scoping stage where the specific
In Canada, for example, the public is parameters for the assessment are agreed
invited to submit comments for a period upon. As outlined in section 3.2.2 Scoping
of 20 days after the posting of a notice on a and impact analysis, this regularly takes
dedicated internet site that the designated place through the establishment of Terms
project is subject to a screening. Any of References (ToR) as well as the technical
comments received must be taken into parameters, this often also includes
account by the Canadian Environmental the specific requirements for public
Assessment Agency.84 participation. This applies in particular,
in cases where the law leaves room for
In Nigeria, it is a legal requirement discretion and thus there is a need to
according to the federal EIA law to provide determine the specific requirements
interested members of the public the regarding public participation on a case-
opportunity to provide input through by-case basis.
comments on the project report, which
are then put on display relating to the In Indonesia, the first opportunity for
conclusions and recommendations made. the public to engage is at the scoping
The National Environmental standards and stage, when the proponent is required to
Regulations Enforcement Agency shall take announce his business and/or activity plan
the comments into consideration before and thus prior to the preparation of the
issuing the screening decisions.85 However, Terms of References for the assessment.
despite this provision, it has been observed Within a period of 10 working days from
that by the time the opportunities for public the announcement, the public is able
participation occur in practice, agencies to provide comments.88 Furthermore,
and decision makers have often become public consultation is legally required.
attached to a particular course of action, For both types of public participation in
thus actual influence on the EIA decision is the Amdal (the Indonesian EIA) process,
very limited [54]. Other challenges include
the fact that the public is often not able
86 E.g. Act on environmental assessment of plans
to interpret the EIA reports, a short time and programs and specific projects (EIA) of
period for the submission of comments, as Denmark [2016], Paragraph 35 (2); Regulation
of Environmental Permits of Indonesia, Article 9
(IV).
87 Regulation of the Environmental Impact
Assessment System Act of Peru [2009], Article 68.
84 Article 10. 88 Regulation of Environmental Permits of Indonesia,
85 Article 21 (3). Article 9 (IV).

SEA systems – Legal and institutional frameworks for SEAs 53

 Regulation no. 17 of 2012 on Guidelines During the scoping stage in Kenya, the
for Community Engagement contains proponent, in consultation with the
detailed provisions. Regarding the public National Environmental Management
announcement, the Guidelines include Authority, has to inform affected parties
requirements for the content of the and communities about the project and
announcement, the type of media to be its anticipated effects and benefits via
used to disseminate the information and public notices, radio – in both official
guidance on how e.g. to accommodate and local languages - and to hold at least
for local languages. Regarding public three public meetings with the affected
consultations, the Regulation stipulates parties and local communities.89 With
that this may include the organization of respect to the meetings it is specifically
different type of events by the proponents, required to ensure that a suitably qualified
including workshops, seminars, focus co-ordinator is appointed to receive and
groups discussion, public meetings (formal record both oral and written comments
and informal), public hearings, interactive and any translations thereof received
dialogues, and any other methods that can during all public meetings for onward
facilitate two- way communication. In transmission to the Authority.
addition it is stipulated that during public
consultation a key task is the selection of In Oman, where the requirement for
representatives of affected communities public participation is only included
who will become members of the Amdal in non-binding MECA Guidelines for
Appraisal (Review) Committee. The Obtaining Environmental Permits90, the
chosen community representatives shall Guidelines provide that during the scoping
conduct regular communication and process, the proponent in consultation
consultation with the community and with the Ministry should determine who
convey the aspirations of the people is interested in the project, what their
affected by the impact it represents in the concerns are, and how the concerned parties
Committee meetings. should be involved in the EIA. It is further
stipulated that interested parties may
Regarding the duration for the public include government authorities, municipal
to make comments after the first organizations, local planning committees,
announcement of the project in Indonesia nongovernmental organizations, private
it should be highlighted that the 2012 sector and the public and that concerns of
Government Regulations shortened the these parties may result in expanding the
timeline from 30 days to 10 days and that scope of the EIA. Lastly, it is also suggested
it is questioned whether a 10-day time that the proponent should develop and
duration is enough for the public to learn implement an efficient public information
the project and give useful opinions and program that would continue throughout
suggestions. Also there is no provision the duration of the project.
concerning the time duration for public
consultation, the regulations only stipulate Similar to the approach in Oman, there
that public consultation must be done are a number of countries that include
before formulating Terms of References
[86].
89 Article 17 of the Regulation.
90 Appendix “B” Guidelines on Environmental
Impact Assessment.

54
guidance on public participation at the 2. Requiring a summary of the report,
screening and/or scoping and assessment including in local language(s)
stage in non-binding guidelines (e.g. 3. Presenting and discussing the report
China)91. face-to-face at public meetings or
workshops;
At the review and decision-making stage, 4. Establishing a committee composed
there are a range of different mechanisms of different stakeholders and
adopted for public participation. National potentially equipped with the power
legislation which includes a requirement to call on people/ witnesses; and
for public participation at the screening 5. Combinations of 1, 2 and 3 above.
or scoping stage, generally requires
public participation at this stage as well In some countries the project proponent
(e.g. Indonesia and Kenya). It should be is responsible for ensuring public
noted, that whether public participation participation under the oversight of the
is required at the scoping and assessment respective government agency, while in
or review stage is not always clear. Many other countries it is the government who
laws require public participation prior to is in charge of consulting the public.
the submission of the final report to the Regarding the impact of the measures
authorities, thus public participation is implemented, a key factor is to what extent
feeding into the process only at the final it is ensured that the feedback provided is
stages of the assessment. However, the reflected in the final report put forward for
distinction taken in this report, of whether approval or disapproval by the authorities.
public participation requirements are Respective measures that are increasingly
linked to the scoping or review stage, is being adopted in national legislation
whether public participation takes place include the requirement to submit
early on, ideally influencing the general protocols of for example public hearings
scope of the EIA before the detailed and to justify how far comments have or
assessments take place (scoping), or only have not been taken into account.
later, when the bulk of the assessment
work has already been undertaken, but In China, before submitting the EIA report
additional work potentially needs to of the construction project for approval, the
be undertaken in order to respond to project owner is required by law to explain
comments/input received by the public (as the relevant situation to the potentially
part of the review stage). affected public and solicit public opinions
from experts and relevant stakeholders.
The mechanisms for public participation Further, the submitted report should have
at the review and decision-making stage an enclosed explanation on whether the
include: solicited opinions have been adopted.

1. Making the draft report publicly Similar to the situation in China, prior
available and providing the to submitting the final EIA report the
opportunity to submit comments; proponent in Georgia is required to arrange
a public hearing in a district administrative
centre, where the activity is planned to be
implemented. First, the proponent has to
91 Revised General Technical Guidelines (2011). make an announcement. The proponent is

SEA systems – Legal and institutional frameworks for SEAs 55

 required to provide the affected public with The implementation of these provisions in
a notice containing: (a) objectives, title and Georgia is not regarded as effective. The
location of the planned activity; (b) address level of public participation is perceived
where the public can obtain information; as low, the public is considered to have low
(c) deadline for submission of comments; capacity and overall only a few instances
(d) time and venue for public hearing. The have been recorded where a preliminary EIA
information can also be requested from report was changed following commenting
the public and local authorities. Within [52]. The current reform process aims
one week after the announcement, the to address shortcomings of the current
proponent has to submit the preliminary legislation and implementation practice,
EIA report to the Ministry of Environment including regarding public participation.
and Natural Resources Protection. This
is the first point at which the Ministry is In Peru, public participation should be
formally involved in the EIA process. The applied to all stages of the EIA process.92
period for receiving written comments The sectoral regulations require that
from the public (and from the Ministry) is mechanisms for participation need to
45 days [52]. be implemented before the EIA study
is submitted. In particular, the project
Between 50 and 60 days after the proponent needs to present a plan for
announcement has been made, the public public participation for each stage of the
hearing has to be held. The Ministry has EIA process.
the possibility of attending the public
hearings as a participant and making Among the mechanisms of citizen
comments on the EIA documentation at participation that can be used by the
that stage. The proponent then submits the proponent are: publication of notices,
final EIA report to the Ministry with regard distribution of executive summaries,
to the comments of the public and other workshops or briefings, public hearings
stakeholders. The proponent must also with the participation of interpreters
prepare a report of the public participation for local languages. While the project
procedure (called a “protocol”) within 5 proponent can choose the mechanisms
days after its conclusion, which reflects to be used during the development of
all comments made at the hearing and the report, the competent authorities are
submitted in writing. The protocol also responsible for conducting effective public
describes how the comments were taken participation at the review stage. This
into account. Where a comment is rejected, includes facilitating access to information
reasons have to be given and communicated and dissemination of the same as well as
to the commenter. The protocol should be ensuring that comments received by the
signed by the public authorities, but only if public are considered in the final report. For
they are present (which is not mandatory). the latter, the proponent needs to include
The law requires that comments made by the outcomes of public participation in the
the public are considered in the EIA report EIA report. With regard to the mandatory
and the protocol forms the basis of making public hearings it should be highlighted
this determination [52]. that at least one of them must be carried

92 Supreme Decree No. 019-2009-MINAM, article 68.

56
out in the area of the population closest to The hearings must be completed within
the area of influence of the project.93 60 days of the proponent submitting
documentation to the Pollution Control
In contrast to the previous examples of Board. After completion of the public
public participation mechanisms, the consultation, the applicant shall address
following examples of national legislation all the material environmental concerns
present cases where the state authorities expressed during this process, and make
(or an established review panel) are appropriate changes in the draft EIA and
responsible for public participation Environmental Management Plan.94 In
following the submission of the draft EIA addition, the Board must send minutes of
report by the proponent. the completed hearing to the competent
authorities, which then decides whether
In India, public consultation has two to grant an environmental clearance. The
components comprising of (a) a public Notification 2006 also stipulates that in
hearing at the site or in its close proximity case it is not possible to conduct the public
for ascertaining concerns of local affected hearing in a manner which will enable the
people; and (b) submission of comments views of the concerned local persons to be
from other concerned persons having freely expressed, the public consultation
a plausible stake in the environmental does not need to include the public hearing.
aspects of the project, following the A very detailed procedure for undertaking
placement of a summary EIA report on a public hearings is included in Appendix IV
specified government website. of the Notification 1997.

Generally, the various state pollution In Nigeria, the degree of public

control boards are responsible for public participation in EIA decision-making
participation for all projects to which varies between the different EIA systems.
the EIA notification applies. Following Public participation is enshrined in the
information submitted by the proponent legislated EIA procedure of the Federal
(including a summary of the salient Ministry of Environment and the system of
features of the project in both English the Department of Petroleum Resources,
and local languages), the State Pollution but as already mentioned is absent from
Control Boards are first required to give the Urban and Regional Planning Act [16].
notice in at least two newspapers widely
circulated in the region around the project, In the following, the requirements included
mentioning the date, time and place of in the federal EIA law will be presented
public hearings. In addition to the general with regard to the review stage.95 As at the
requirement to conduct public hearings, screening stage, interested members of the
public access to executive summaries must public are given the opportunity to provide
be made available at the Pollution Control input through comments on project
Board and other Government offices and reports which are put on display. Further,
all available information must also be the comments received may lead to the
made available to environmental groups referral of the project to mediation or a
and concerned parties upon request.

93 Supreme Decree No. 019-2009-MINAM, article 68; 94 Notification 2006 of India.

Law 27446, article 14. 95 Section 7 and 24.

SEA systems – Legal and institutional frameworks for SEAs 57

 review panel.96 In case of a referral of the one of the responsible authorities, the
project to a review panel, the organization public specifically has the opportunity
of a public hearing is mandatory.97 to comment on the draft EIA report
Furthermore, the comments concerning prepared by the proponent.101
those effects received from the public 2. If the EIA is conducted by a review
are one of the factors explicitly listed for panel, the holding of public hearings
consideration of a review panel.98 In case for any “interested party” is a
of referral to mediation, the participation mandatory requirement. This has to
of parties “who are directly affected by be done in a manner that offers any
or have a direct interest in the project” interested parties an opportunity to
in the mediation is determined by the participate.102 An ‘interested party’
federal Environmental Protection Council, in the context of a public hearing by
established by the National Environmental the review panel is any person who is
Standards & Regulations Enforcement directly affected by the carrying out
Agency.99 of the designated project or who has
relevant information or expertise, in
However, as already outlined with respect the opinion of the review panel.103
to public participation at the screening
stage in Nigeria, public participation is According to the EIA information provided
considered to remain one of the weak by the Government of Canada, the primary
links of the EIA process. The lack of purpose of the public hearings is to allow
appropriate skills and prior experience the review panel to obtain the information
in public participation on the part of the required to complete its assessment of
EIA teams, the public, and the Federal the potential environmental effects of the
Ministry of Environment is regarded as the proposed project.104 Therefore the review
critical factor next to the already outlined panel for example also has the competence
challenges such as the politicization of the to summon witnesses.105 And the final
environmental assessment process [43,54]. EIA report prepared by the review panel
and submitted to the Minister for the
Regarding the requirements for public (final) decision-making needs to include a
participation in Canada, a distinction has summary of the comments received from
to be made between the two types of EIA the public.106
introduced in section 3.1 EIA arrangements:
According to non-binding guidelines,
1. If the EIA is conducted by a the public also has the opportunity to
responsible authority, the respective comment on the Terms of References
authority must generally ensure for the review panel. Further, the public
that the public is provided with an needs to be consulted when the Canadian
opportunity to participate100. If the
EIA is conducted by the Canadian
101 Article 25.
Environmental Assessment Agency, as 102 Article 43 (c).
103 Article 2 (2).
104 https://www.canada.ca/en/environmental-
96 Section 29, Referral by the Council. assessment-agency/services/environmental-
97 Section 36 (b). assessments/basics-environmental-assessment.
98 Section 16 (c). htm.
99 Section 32. 105 Article 45.
100 Article 24. 106 Article 43 (d)(ii).

58
Environmental Assessment Agency whether a project should proceed, and do
determines whether the environmental not continue into the operational phase of
impact statement prepared by the project resource development [88].
proponent contains sufficient information
to allow the review panel to conduct its One mechanism to provide the
sufficiency review. The review panel also opportunity for public stakeholders
needs to provide the opportunity for the to engage in follow-up measures is to
public to provide comments regarding the make compliance or monitoring reports
sufficiency of the information provided submitted by the project owner publicly
in the finalized environmental impact available. This is for example the case
statement of the proponent, before in India.109 [89] And in Kenya, each
initiating a public hearing.107 member of the public has the right to
petition the National Environmental
Importantly, the responsible authorities Management Authority to cause an audit
are also obliged to establish a participant to be carried out on any project, after
funding program to facilitate the showing reasonable cause in writing.110
participation of the public in the In addition, any complaints against the
environmental assessment of designated Authority or any person, including in
projects, including with regards to the ones relation to EIAs, will be investigated by
referred to a review panel.108 the Public Complaints Committee as an
autonomous environmental ombudsman.
At the follow-up stage, thus following Similarly in China, citizens, legal persons
impact assessment and project approval, and other organizations are entitled
only a very limited number of national to report and complain in relation to
laws include specific requirements for environmental pollution and ecologically
public participation. For example, in the damaging activities and thus to support
Mekong region it is observed that current monitoring of EIA outcomes. In addition,
regulations and (non-binding) guidelines organisations that meet specified
for public consultation and participation conditions may file a public interest lawsuit
in the EIA process generally end when the to the people’s courts [49].
project is approved, thus there is no public
involvement in implementation [87]. Detailed provisions for active participation
At the same time this issue is receiving during the follow-up phase were
increased attention in the literature due adopted in South Africa in 2014, where
to the acknowledged key importance follow-up measures were generally
of the follow-up stage. Specifically with significantly strengthened. In addition
regard to the involvement of indigenous to the requirement to make all audit
peoples, the criticism is made that even reports publicly available, interested and
where opportunities for their involvement affected parties also have the right to
in the EIA process exist, these are often participate in finding relevant solutions.
limited to processes designed to determine More specifically, in case the holder of
an environmental permit is required to
107 https://www.canada.ca/en/environmental- submit recommendations to amend the
assessment-agency/services/environmental-
assessments/basics-environmental-assessment.
html. 109 2006 Notification, Article 10 (ii).
108 Article 57 and 58. 110 Article 39.

SEA systems – Legal and institutional frameworks for SEAs 59

 Key points on public participation at the different stages of the EIA process

• Many EIA laws require public participation “only” at the assessment and/or
review stage, thus when an EIA report has been developed, and prior to (final)
decision-making of the competent authority. However, it is argued that public
participation is most effective if it takes place at the earliest stage possible, thus
ideally at the screening stage;
• If required, public participation at the screening stage regularly consists of the
opportunity to provide comments following public announcement of the project;
• Mechanisms for public consultation at the scoping and review stage include
public hearings, face-to-face meetings, the establishment of a review committee,
the submission of comments and public information programs;
• At the follow-up stage, thus following impact assessment and project approval,
only a very limited number of national laws include specific requirements for
public participation. Public participation mechanisms at the follow-up stage
include compliance assurance monitoring, environmental inspections, bringing
non-compliance to the notice of regulators (complaint process) or judiciary (law
suit) and dispute settlement;
• The responsibility to conduct public participation often rests with the project
proponent, but in some cases also the public authorities are charged with the task.

Environmental Management Plan or compliance to the notice of regulators

closure plan in order to rectify identified (complaint process) or judiciary (law suit)
shortcomings in an environmental audit and dispute settlement [89].
report, such recommendations must have
been made subject to a public participation Who is the public?
process. The process must be agreed to The wide range of different approaches
by the competent authority and found with regard to the steps in an EIA process
appropriate in order to bring the proposed highlight an additional key question
amendments to the Environmental regarding public participation, and that is,
Management Plan and/or closure plan to who exactly is the public to be consulted
the attention of “potential and registered or engaged in the EIA process? Clarity on
interested and affected parties, including who the public is, is considered crucial in
organs of state which have jurisdictions in order to determine the benefits of public
respect of an aspect of the relevant activity participation as well as to inform the
and the competent authority” [90].111 design of effective measures [83].

In summary, public participation As regards the definition of the public

mechanisms at the follow-up stage in national EIA legislation, many laws
include compliance assurance monitoring, distinguish between the different types
environmental inspections, bringing non- of mechanisms for public participation.
Whereas the opportunity to provide
comment on a project announcement or
111 S34 (5). a draft EIA report is generally provided to

60
the general public per se, the opportunity In Fiji it is similar to Kenya. Affected
to participate in face-to-face meetings parties, local communities and customary
where the project and/or draft EIA report resource owners are often involved with
are presented and discussed are often projects from an early stage of the EIA
restricted to those (directly) affected by process. Communities are again involved
the project. In addition to those affected, as part of the public consultation process
several laws also aim at involving other required under the law. The public also has
interested parties, such as environmental the opportunity to appeal decisions made.
groups.
In Denmark, the public is defined as
In China, the 2014 Environmental a) one or more natural or legal persons
Protection Law includes a chapter on (companies, etc.) directly or indirectly
“Information Disclosure and Public affected or likely to be affected by the plan,
Participation”, which introduced the program or project; b) associations and
commitment to make public the full text organizations that have the protection of
of the EIA report of the construction the landscape, cultural heritage, natural or
project upon receipt by the competent environmental interests as objective, if the
department. At the same time, the association or organization has statutes or
opportunity to participate in hearings or regulations documenting this purpose, and
to make oral or written submissions to the the association or organization represents
Pollution Control Boards is restricted to at least 100 members.114
local residents, environmental groups and
others located at the project site likely to Whereas some regard it as generally
be affected. Further, the law introduced the impossible to consult everybody in the
requirement to file a public interest lawsuit. EIA process who might be considered to
constitute the public [1], others argue that
In Kenya, ‘affected parties and local everyone interested in a given project/EIA
communities’ have to be consulted by the procedure should be invited to participate
proponent at the scoping stage, whereas because environmental decisions affect
the opportunity to provide comments virtually everybody’s quality of life. [83]
or to participate in public hearings at the However, it is acknowledged, that allowing
review stage (if deemed necessary by the everybody to participate, while at the
National Environmental Management same time potentially not being able to
Authority) are available to the public meet everybody’s expectations, including
generally. Nevertheless, public hearing due to capacity constraints, may lead
shall be conducted at a venue convenient to frustration and, eventually, decrease
and accessible to people who are likely to people’s willingness to participate in EIAs.
be affected by the project.112 And also at For example, it has been observed that
the follow-up stage each member of the the fact that comments received from the
public has the opportunity to petition the public were often not taken into account
Authority to cause an audit.113 by the EIA agency in Costa Rica and
Nicaragua has led people to refrain from
formally participating in EIAs and to make

112 Articles 21 and 22.

113 Article 39. 114 Paragraph 5 (1).

SEA systems – Legal and institutional frameworks for SEAs 61

 use of informal forms of participation Regarding groups that have been
instead (such as protest marches, boycotts, historically marginalized in many
etc.) [83]. countries, it should be noted that the rights
of indigenous peoples to be involved
In this context, recent changes to Canada’s in environmental projects has gained
environmental assessment law can be increasing recognition at the international
highlighted, which restricted some public policy level [88]. The 2007 UN Declaration
participation requirements to those who on the Rights of Indigenous Peoples The
are either “directly affected” or have Declaration requires States to consult and
“relevant information”. Critics have cooperate in good faith with the indigenous
argued that for environmental assessment peoples concerned in order to obtain their
processes to be effective and legitimate, free, prior and informed consent before
they must incorporate a combination of adopting and implementing legislative or
values and interests that are representative administrative measures that may affect
of the broader public. Furthermore, it is them (article 19), including undertaking
concluded that restricting participation projects that may affect their land, territory
to the “directly affected” is far too narrow or resources including mining and other
a test for processes like environmental utilization or exploitation of resources
assessment that are designed to determine (article 32). Other key international
the public interest. Lastly, it is also generally instruments include the Akwé: Kon
observed that the 2012 revision moved in Guidelines as voluntary guidelines for
the opposite direction from the general the conduct of cultural, environmental
tenor in the literature, that with respect and social impact assessments adopted
to public participation mechanisms, by the Conference of the Party to the
generally, more should be done not less [6]. Convention on Biological Diversity in
2004 and the Aarhus Convention on Access
Following a change in government, as to Information, Public Participation in
well as the results of the 2014 Fall Report Decision-making and Access to Justice
of the Commissioner of the Environment in Environmental Matters. Indigenous
and Sustainable Development, which also consultation may also be driven by other
identified some gaps and issues in some national constitutional requirements, for
of the practices for public and Aboriginal example in Canada, Australia and New
participation115, the Government of Zealand [91].
Canada is currently undertaking a
review of environmental and regulatory However, only a limited number of
processes, including federal environmental countries’ national EIA legislation include
assessment processes. Indigenous issues specific provisions related to indigenous
and participation feature prominently peoples’ participation. In Peru, for example,
among the assessed revision options.116 while the EIA law includes a provision
to promote the participation of peasant
and native communities (under the ILO
Convention 169)117, there is also a specific
115 http://www.oag-bvg.gc.ca/internet/English/parl_ law dealing with the right of indigenous
cesd_201410_04_e_39851.html#hd3f.
116 http://www.canadianeraperspectives.com/2017/04/
expert-panel-recommends-significant-changes-to-
canadas-environmental-assessment-regime-2/. 117 Supreme Decree No. 019-2009-MINAM, article 71.

62
peoples to prior consultation regarding However, most importantly in relation to
legislative or administrative measures the participation of indigenous peoples
that might affect them.118 Importantly, there are two key structural challenges
the law does not grant the right to veto. related to the EIA system per se. Firstly,
The approval of the Prior Consultation there is a clear tension between the laws
law was a significant turning point in the that leave the responsibility to undertake
Peruvian Government’s engagement with the EIAs with private actors and facilitate
indigenous communities. participation of affected communities, and
the laws that acknowledge the communities
In addition, and similarly to other right to participate [92]. Secondly,
marginalized groups, obstacles in indigenous people are frequently alienated
participation also arise from limited by EIA processes due to their highly
capacity of indigenous peoples to formal nature, the dominance of technical
participate at the local level, as well as discourse as well as the application of short
the fact that the extent to which they do time frames that are inappropriate in the
participate is often the result of conflict context of indigenous decision-making
caused by an initial failure to involve them. [88].
Another challenge, as already outlined,
is the fact that their involvement is often As a result the need has been highlighted
limited to procedural steps prior to EIA to recognize, establish or improve the
report or project approval, and does not legal standing of indigenous people in
continue in the operational phase of the the national EIA framework or to explore
project [88]. new EIA systems characterized by shared
involvement and responsibility or (at least

Key points on “the public”

• With regards to the definition of the public, many EIA laws distinguish between
the different types of mechanisms for public participation; e.g. only those
(directly) affected by the project may attend face-to-face meetings;
• Critics have argued that for environmental assessment processes to be effective
and legitimate, they must incorporate a combination of values and interests that
are representative of the broader public;
• In contrast to the situation in the United States or many European countries,
environmental NGOs seldom participate in the EIA process;
• Only a limited number of countries’ national EIA legislation include specific
provisions related to the participation of indigenous peoples and the need has
been highlighted to (1) recognize, establish or improve their legal standing in
the national EIA framework or to (2) explore new EIA systems characterized by
shared involvement and responsibility or (at least in part) local empowerment
and control.

118 Prior Consultation Law of Peru 29785 (2011).

SEA systems – Legal and institutional frameworks for SEAs 63

 in part) local empowerment and control, in the legislation, and the participation of
where control over the scope, form and indigenous people in the EIA process. This
content of an EIA is given to the local can also be illustrated with the example
community(ies) and it is exercised usually of the European Union. Whereas the
through community representatives [1]. recent revision of the EIA Directive of the
For more information on this with regard European Union is generally perceived to
to the follow-up stage, please view section have missed an important opportunity to
3.2.5 Follow-up and adaptive management. strengthen public participation provisions
in Member States, the revision also
Lastly, and not only with regard to introduced a new minimum time frame for
indigenous peoples, but local communities public consultation of 30 days, which will
more broadly, it should be noted that extend the time for public consultation in
climate change has been identified at least six Members States [5]. In Nigeria
as a necessary point of discussion in the 21-day display of the EIA report is not
stakeholder consultations. This includes regarded as adequate for anyone to make
the consultation of stakeholders who can incisive comments especially for complex
provide their relevant local knowledge projects. Another major drawback which
as input as well as those that need to be has been highlighted is that the general
educated on climate change before they can public in the country is comparatively
engage in the conversation about the likely indifferent and poorly informed about the
impact of the planned project, specifically potential negative environmental effects,
in regards to the types of adaptation and in particular the long-term impact.
measures needed [63]. Thus limitations on public involvement
include for example, language barriers
Implementation challenges and the inability to read and/or interpret
The legal right to participate in the EIA the provided project information – both
process is only one side of the coin. The issues which can be partially alleviated by
other side being the capacity of the public public hearings where explanations can be
to get involved. This is linked to issues such provided face-to-face [43].
as education and awareness, about the
project itself as well as the EIA process, the Challenges in implementing public
availability of resources, including time, participation provisions related to the
and importantly also whether a culture of prevailing culture in a country or region
participation exists or not, as well as whether can be illustrated with the example
a sense of usefulness of participation exists of China. The reasons for the issue
or not. A relevant measure to address some of non-participation by the public in
of these challenges is the above mentioned EIAs have been identified as including
participant funding program established political and cultural restraints as well
by Canada. as lack of capacity, poor governance,
inappropriate participatory design and
Regarding the legal requirements, critical lack of information [93]. Furthermore,
factors along with the type of mechanisms and in contrast to the situation in the
available, are the definition of the public United States or many European countries,
who can participate, the responsiveness to non-governmental environmental
feedback provided, the timelines provided organizations seldom participate in the

64
 Key points on implementation challenges of public participation

• Regarding the legal requirements, critical factors along with the type of
mechanisms available, are the definition of the public who can participate, the
responsiveness to feedback provided, the timelines provided in the legislation, and
the participation of indigenous people in the EIA process;
• A sufficient time duration for the public to make comments is crucial in order for
the public to learn about the project and give useful input;
• The reasons for the issue of non-participation by the public in EIAs in some
cases have been identified as including political and cultural restraints as well as
lack of capacity, poor governance, inappropriate participatory design and lack of
information;
• A key factor for the impact of the measures implemented is to what extent it is
ensured that the feedback provided is reflected in the final report put forward for
approval or disapproval by the authorities.

EIA process. Instead, it has been observed 3.2.4 Review and (final) decision-
making
that citizens have mostly been participating
on an individual basis [94]. In that regard Review of the EIA report and process
it will be interesting to observe how far the
recent 2014 revision of the Environmental The review stage of the EIA process, i.e.
Protection Law, which includes a new the review of the EIA report prior to the
chapter dedicated to the role of civil decision on whether a project can go ahead
society in environmental protection, will taking environmental considerations
shape future public participation in EIA into account, is a key element of the EIA
processes in the country. process. The objective is to verify whether
the information provided is sufficient
Observed challenges with respect to public and adequately presented so as to form
participation in Egypt include the fact a sound basis for decision-making. This
that public consultations are often ignored does not only include information on the
or undertaken only for certain donor- identified impacts on the environment,
funded projects [95] and that the system but for example, also whether the project
is ineffective in practice as environmental proponent has the capacity to implement
impact statements are often considered the suggested mitigation measures and
confidential and not fully disclosed to the avoid adverse impacts [1,14,96].
public, instead only a summary of the
study is shared [14]. In most EIA systems, EIA review is a formal
procedure and is either undertaken by:
Experience in the Pacific is lack of
understanding of technical terms used 1. Environmental agencies
in the EIA report. This is also a challenge 2. Sectoral agencies that are in charge
during public consultation. of issuing the final permit or licence

SEA systems – Legal and institutional frameworks for SEAs 65

 Table 6: Overview of section content related to EIA review and (final) decision-making

  Review and (final) decision-making

Specific issue Review process Substantive Review Validity of EIA Right to appeal
guidance for the period licence
final decision

Case study Lebanon; EU; Oman; EU; Panama; Vanuatu; Bhutan; New
countries and Kazakhstan; Georgia; India; Lebanon; Zealand;
illustrative Cameroon; Tanzania Lebanon; Denmark; Panama;
examples* Vanuatu; Peru; Peru Kazakhstan; Peru; Egypt,
Kenya Kenya Tanzania;
Denmark

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

to start with implementation of the include provisions on review criteria. In

proposed project cases where Terms of References (ToR)
3. An intergovernmental body or were developed at the scoping stage, EIA
committee reports are assessed against these, either
4. An independent body, generally complementary to the legal provisions or
established by environmental agencies as the only point of reference. A key issue
is the extent to which EIAs are reviewed
In addition, and as already dealt with for procedural adherence only or whether
in section 3.2.3 Public participation, there is a substantive review.
comments from the public on the EIA
report are an integral part of the review In the following a number of legal
process in many countries [1]. Also, in approaches with regard to the review stage
the Pacific, governments sometimes seek of the EIA process will be presented.
assistance from EIA consultants or regional
organisations (e.g. University of the South In Lebanon, and following public
Pacific, Secretariat of the Pacific Regional consultation, the Ministry of Environment
Environment Programme) to support internally reviews the final report prior
their review of EIA reports. to approval or disapproval. The Ministry
studies the reports through a technical
According to most national laws, the review committee formed by the Department of
is guided by review criteria or checklists, Environmental Technology. The technical
often also included in annexes to the committee member’s profiles depend on
law or in non-binding implementation the nature of the project and would include
guidelines. These may be related to the representatives of concerned departments
format of the report, for example the at the Ministry.119 The committee members
requirement to include a non-technical are also provided with guidelines for
executive summary, or the content of the evaluation of the EIA reports. The result
report, e.g. which issues need to have been of the review by the technical committee
assessed (in reflection of the assessment is communicated to the project proponent
criteria discussed in section 3.2.2 Scoping
and impact analysis). However, not all laws
119 2275/2009.

66
by the Minister as a formal decision (EIA hearing conducted by the developer to the
approval or disapproval).120 The final authorities. There are no specific provisions
decision on the EIA report is communicated stipulating which parameters an EIA needs
to the public via posting on a public board to be assessed against and no Terms of
by the concerned Municipality for 15 days, Reference are developed earlier on in the
exempt of confidential information related process. Instead, the state environmental
to Intellectual Property Rights, Industrial review assesses the EIA documentation
Property Rights and budgeting.121 against the general requirements of: 1.
Substantiation of the proposed activities;
The project proponent has the opportunity 2. Whether the EIA was complete and
to object to the decisions. In this case correct; 3. Efficiency, completeness and
a second review is undertaken by the sufficiency of the proposed measures on
technical committee, regularly following environmental protection; 4. Compliance
the submission of additional information with requirements of laws, standards
by the project proponent.122 The and rules; and 5. Compliance with
competent sectoral government agency for requirements on conducting public
the issuance of the development permit hearings if they are required. As is common
also has the option to object the decision with state environmental reviews (SER),
of the Ministry of Environment. In that widely implemented in former socialist
case the project is presented to the Council countries of the USSR, the criteria indicate
of Ministers for study and final decision a focus on compliance with technical
on EIA approval or disapproval.123 This norms and standards, rather than on the
means that the decision of the Ministry of environmental impacts of the project [97].
Environment can be overturned by other
sectors for political reasons. In Cameroon, once the Environmental and
Social Impact Assessment (ESIA) has been
In Kazakhstan, the EIA report is reviewed submitted to the Ministry of Environment,
by the Committee of Environmental Nature Protection and Sustainable
Regulation and Control of the Ministry Development, the Ministry can undertake
of Energy. The regulations provide for on-site visits to qualitatively verify the
the involvement of external experts information included in the assessments
through the establishment of expert and to obtain feedback by the concerned
commissions124, however, in practice this public.125 The outcomes are transmitted
is not being implemented. In addition, the in a report to the Inter-ministerial
law sets out the participation rights for the Committee. The Committee, led by the
public concerned at the stage of the state Ministry, consists of representatives from
environmental review, but it is interpreted the following ministries: environment;
that this provision is complied with through agriculture; mining and industry; small
the submission of the protocol of the public and medium enterprises; livestock and
fisheries; planning; water and energy;
120 Art. 1(5), 1/229. scientific research; tourism; public works;
121 Art. 8(2), 10 and 11-EIA decree. transport; urban development; financial
122 Art. 14-EIA Decree 8633; Art. 2,3 – Decision No.
1/262. affairs; public health; defence; and forests.126
123 Art. 14-2/EIA decree.
124 Rules on conducting the state environmental
review adopted by the Order of the Minister of 125 Decree 2013/0171/PM, article 18.
Energy of 16 February 2015 No. 100. 126 Decree 2006/1577/PM, article 3.

SEA systems – Legal and institutional frameworks for SEAs 67

 The review is done against the Terms of communities and academics as considered
Reference developed at the scoping stage. appropriate by the Director.127 Sometimes,
In addition, criteria used for the review are the Secretariat of the Pacific Regional
described in the non-binding guidelines Environment Programme (SPREP) also
for carrying out and evaluating EIAs. assists in the review of EIA reports.

Despite some very favourable provisions, In Peru, review by the public and the
this procedure has been criticized as there is competent sectoral authorities takes place
only limited use of external expertise in the in parallel. Once the review is finalised,
review process in Cameroon, limited funds the proponent needs to address the
to conduct on-site visits, the competences comments that were submitted by both. As
of reviewers are not outlined, and there is for the competent authorities, the review
no legal requirement to make the outcome includes the assessment of whether the
of the review public [98]. EIA complies with the Terms of Reference
and whether the identified potential
Similarly to the EIA system in Cameroon, negative environmental impacts resulting
the EIA report in Vanuatu is also reviewed from the project could have unacceptable
by a committee established and chaired effects. While studies of sectoral projects
by the Director of the Environment are approved by the relevant competent
Department against the project’s authorities, MINAM has the power
Terms of Reference. However, as well as to randomly review the EIAs of such
representatives from the Government, the approved projects in order to improve
10 people of each committee also include the functioning of the EIA system128. After
representatives from the relevant industry, completing the review and evaluation of
non-governmental organizations, local the EIA, the competent authority must

Key points on review of the EIA report and process

• Serves the function of verifying whether the information provided is sufficient

and adequately presented so as to form a sound basis for decision-making. This
for example also includes whether the project proponent has the capacity to
implement the suggested mitigation measures and avoid adverse impacts;
• Not all national EIA laws include provisions on review criteria. In cases where
Terms of References (ToR) were developed at the scoping stage, EIA reports are
assessed against these, either complementary to the legal provisions or as the only
point of reference;
• According to most national laws, the review is guided by review criteria
or checklists, often also included in annexes to the law or in non-binding
implementation guidelines. These may be related to the EIA process, the format
of the report, or the content of the report (substantive review).

127 CAP 283, Article 22, Order 175, Article 12 and 13.
128 Supreme Decree No. 019- 2009-MINAM, article 7;
Resolución Ministerial N° 239-2010-MINAM.

68
issue the resolution accompanied by a And while the EIA systems in most countries
report that supports the resolved, which is are self-regulatory in that the responsible
an integral part of it and is made publicly authority retains the discretion to move
available.129 ahead with projects notwithstanding the
results of the EIA and public participation,
In Kenya, review of the EIA report is some laws also provide substantive
undertaken by the lead (sectoral) agencies guidance for the final decision. A number
against the Terms of Reference stipulated at of legal approaches illustrating the range of
the scoping stage, and the public – through approaches are presented in the following.
consultation or public hearing. In order
to facilitate the final decision-making by The recently revised Directive on EIAs
the National Environmental Management of the European Union requires that the
Authority, the Authority may also establish decision to grant development consent
a Technical Advisory Committee to advise by Member States must incorporate a
on the quality and content of the EIA reasoned conclusion on the significant
report. effects on the environment, taking into
account the EIA and consultation with the
Regarding the consultation of experts public and relevant authorities.130 Further,
in committees or other review bodies, it is not only required that the public
suggestions have been made to make the and specified authorities are ‘promptly’
inclusion of independent climate change informed of the final decision, but also
experts to peer-review the EIA report a that they are informed of how the results
mandatory requirement [63]. obtained from the EIA and consultation
have been incorporated or addressed.131
(Final) Decision-making
Regarding the (final) decision-making on In Oman the EIA law provides guidance
the EIA process and report, several EIA on the substance of the EIA decision and
laws include specific guidance on what thus the decision to issue an environmental
to take into account when making the permit or not. It is stipulated that the EIA
final decision, such as comments received study needs to confirm that the benefits
from the public and/or other government of the source of area of work surpass the
departments. On enabling public access potential damage to the environment, thus,
to the final decision, several EIA laws also that the project design needs to be adjusted
include provisions related to the content if that is not the case. Furthermore, it is
of the decision. This in particular includes stated that no permit shall be issued to
requirements to include Environmental practice any activity, which may cause
Management and Monitoring Plans and inevitable or incurable damage to the
conditions as part of the final decisions. environment.132
Making these publicly available will
support follow-up measures – by the In Georgia, a development permit
public as well as by other agencies and can only be issued on the basis of a
stakeholders involved. positive conclusion on the ecological

130 Article 8.
131 Article 9(1)(b).
129 Supreme Decree No. 019-2009-MINAM, article 54. 132 Article 16.

SEA systems – Legal and institutional frameworks for SEAs 69

 expertise provided by the expert (review) significant adverse impacts on the
commission, established by the Ministry environment; (2) There are no alternatives
of Environment and Natural Resource which can mitigate or remedy the
Protection. The environmental impact significant likely harm to the environment;
permit comes along with permitting (3) The proponent has failed to abide
conditions. The law on Licenses and with the mitigation measures stated in
Permits stipulates that the conditions the Environmental Impact Statement
and findings of the conclusion made by or conditions issued by the Minister; or
the state ecological expertise present the (4) There are compelling social, economic,
permitting conditions. These conditions health, cultural, or religious reasons which
may be based upon the portions of the may or are likely to lead to irreversible
EIA report concerning: (i) methods of impacts on the society.133
environmental control and monitoring;

Key points on final decision-making on the EIA report

• Several national EIA laws include guidance on the final decision-making;

• Legal provisions address (1) what to take into account when making the
decision, such as comments received from the public and/or other government
departments; (2) enabling public access to the final decision; and (3) the content
of the decision; this in particular includes requirements to include Environmental
Management and Monitoring Plans and conditions as part of the final decisions;
• Ensuring public access to the decision supports follow-up measures, including by
other government entities;
• While the EIA systems in most countries are self-regulatory in that the responsible
authority retains the discretion to move ahead with projects notwithstanding the
results of the EIA and public participation, some laws also provide substantive
guidance for the final decision.

Duration of the review and validity of the

(ii) prevention and mitigation plans for
EIA approval
identified or expected negative impacts on
the environment; and (iii) environmental In order to provide planning security for
strategy and management plans for each the developer and reduce unjustified delay
stage of the activity [52]. in the implementation of the planned
project, several laws include provisions
In Tanzania, the law provides specific on the maximum duration of the review.
guidance for when the Minister of Many laws also include provisions on
Environment shall disapprove and the validity of an issued EIA approval/
recommend to the licencing authority Environmental licence, in order to take
that the project should not be licenced
or, where the licence has been issued,
be cancelled. This is the case if: (1) The
project or undertaking is likely to cause 133 Article 93.

70
into account the fact that environmental of 12 months134, the validity of the same in
circumstances are constantly changing. Lebanon is 2 years, 3 years in Denmark135
and up to 10 years in Kazakhstan.136
According to the new EU Directive, Member
States shall ensure that the competent While the validity of the EIA licence is
authority makes its determination on EIA only of relevance until implementation has
approval or disapproval as soon as possible (substantively) commenced, many laws
and within a period of time not exceeding also include the requirement to submit
90 days from the date of submission a new EIA after EIA approval has been
of the final EIA report. In exceptional obtained under certain circumstances,
cases, for instance relating to the nature, or limit the time period in general under
complexity, location or size of the project, which a project can be executed under
the competent authority may extend that a “one-off ” EIA approval. In Kenya, for
deadline. In that event, the competent example, it is mandatory to submit a new
authority shall inform the developer EIA report after the EIA licence has been
in writing of the reasons justifying the issued, in case (a) there is a substantial
extension. In contrast, the maximum change or modification in the project
review period in Panama is only 40 days, or in the manner in which the project
in India and Lebanon 60 days and in Peru is being operated; (b) the project poses
70 days. environmental threat which could not be
reasonably foreseen at the time of the study,
Regarding the timeline for the validity of evaluation or review; or (c) it is established
EIA approvals, national approaches vary that the information or data given by the
considerably. Whereas EIA approval in proponent in support of his application
Vanuatu is generally valid fora duration for an EIA licence was false, inaccurate or

Key points on the duration of the review and the validity of the EIA approval

• Several laws include provisions on the maximum duration of the review;

however, the length varies considerably and at the lower end is often criticised
for not allowing sufficient time for (meaningful) input; in particular if approval
is assumed to have been provided after the time period has passed without any
feedback.
• Many laws also include provisions on the validity of an issued EIA approval/
environmental licence, in order to take into account the fact that environmental
circumstances are constantly changing. The issue is closely linked to follow-up
measures undertaken during the post-decision phase.
• Most countries provide the opportunity to appeal against the EIA-based decision,
often as part of domestic administrative law.

134 Order 175, Article 16.

135 Chapter 16, Paragraph 39.
136 Article 51(6) in conjunction with Article 76(1) of
the Environmental Code.

SEA systems – Legal and institutional frameworks for SEAs 71

 intended to mislead137. The whole issue is this purpose and represents at least 100
closely related to the next stage of the EIA members”.141
process, termed follow-up, and will thus be
further dealt with in section 3.2.5 Follow-up and adaptive
management
Follow-up and adaptive management. The EIA process does not stop with an
Finally, it should be highlighted that EIA approval decision or the development
most countries provide the opportunity consent granted by the competent authority.
to appeal against the EIA-based decision, Instead, the process can be divided into
often as part of domestic administrative a pre- and post-decision phase [99].
law in implementation of Principle 10 Whereas the pre-decision phase focuses on

Table 7: Overview of section content related to EIA follow-up and adaptive management

  Follow-up and adaptive management

Specific issue Compliance reports Compliance and Environmental Measures to

and site inspections monitoring powers audit reports strengthen
implementation

Case study India; Lebanon Vanuatu; China South Africa Mongolia; Lebanon
countries
and
illustrative
examples*

*Please note that this list is not exhaustive, but instead flags examples from the case study countriesand illustrative
examples featured in the report

of the Rio Convention and the Aarhus predicting environmental impacts with the
Convention. This is, for example, the case aim of mitigating for significant impacts,
in Bhutan, New Zealand, Panama138, the follow-up phase aims to ensure that the
Peru139, Egypt and Tanzania140. Mostly, actual impacts of the project – whether
however only the project proponent has predicted or not – are mitigated where
the right to appeal. In some cases, the negative, and enhanced where positive,
person negatively affected has this right, and that the mitigation measures that
and in a few cases everyone with a legal were a condition of approving the EIA are
interest in the outcome and/or specific complied with. Follow-up measures are
national associations and organization. thus the key requirement for an EIA to not
With respect to the latter, in Denmark this be linear, i.e. terminating with the decision
applies to any association or organisation to go ahead with a project, but dynamic,
“whose purpose is the protection of nature thus constituting the missing link between
and the environment or the safeguarding EIAs and effective project implementation
of essential user interests in land use, and and management [4,5,88,99,100].
has statues or regulations, documenting

137 Article 64 EMCA, 28 Regulations.

138 Executive Decree 123 (2009), articles 54-55. 141 Act on environmental assessment of plans and
139 Supreme Decree No. 019-2009-MINAM, article 59. programs and specific projects (EIA) of Denmark,
140 EIA and Audit Regulation of Tanzania, Article 61. 2016, Paragraph 50.

72
The generic term of EIA follow-up of impact management and mitigation
measures is widely used to include a approaches than in the development of
number of activities and can be described predictive techniques and methods [100].
in the following way [99]: Moreover, follow-up measures are not
only of huge importance for a specific EIA
• Monitoring: the collection of data process, but also support the improvement
and comparison with standards, of EIA methodology more generally [4].
predictions or expectations;
• Evaluation: the appraisal of the Despite this, most national EIA systems
conformance with standards, terms as well as EIA practice have a clear focus
and conditions (especially mitigation on the pre-decision phase, including
measures) in the EIA licence or overemphasis on the EIA report itself,
approval, predictions or expectations with the perception that it is an end
as well as the environmental product instead of a legally binding
performance of the activity; commitment. As well as the level of detail
• Management: making decisions and of the provisions and the structure of
taking appropriate action in response the law, this is for example, also reflected
to issues arising from monitoring in the fact that panels, committees or
and evaluation activities (including commissions established as part of EIA
enforcement measures by the processes are regularly suspended once
authorities); and a decision is made to approve a project
• Communication: informing the and that follow-up regularly doesn’t have
stakeholders as well as the general a central role in institutional mandates.
public about the results of EIA follow- In addition, a challenge is often that
up. permitting conditions are not made
available to all relevant agencies [47]. A
Monitoring can be further broken down limited number of EIA systems also do not
into compliance, mitigation and impact include any legal requirements related to
monitoring. [1] follow-up measures (e.g. in Kazakhstan).
As a result, it is widely perceived that there
Regarding the rationale of EIA follow-up, is a considerable implementation gap or
and while acknowledging that a thorough even lack of knowledge about impacts of
EIA in the pre-decision phase is always a projects after development consent has
necessary pre-requisite to inform project been granted [51,88]. This is of particular
planning, it is further highlighted in the concern given the recorded and projected
literature that the assessment during the changes in the biosphere driven by climate
pre-decision phase is not in and of itself change.
a sufficient condition for sound planning,
decision-making and management With regard to ensuring follow-up of a
of projects, since there will always be project’s Environmental Management Plan
uncertainties and gaps in knowledge and approval conditions with respect to
(i.e. future environment conditions and climate change, it has for example been
synergies in a changing climate) [99]. This suggested to make use of a watchdog
is also supported by practical experience group, on an independent monitoring
which suggests that advances in EIA have agency to enforce responsibility of the
been greater in respect of the development project proponent and/or the (local)

SEA systems – Legal and institutional frameworks for SEAs 73

 governing authority. This could include the terms and conditions [1,51]. Thereby, the
verification of compliance of proponent Environmental Management Plan is not
performance with other national climate regarded as a static document, instead
change related standards or policies [63]. the project owners should regularly be
required to make ongoing adjustments
The reasons for the observations on a in their project in order to minimize
focus on the pre-decision phase include unpredicted environmental impacts (an
the tendency of regulators and politicians approach often referred to as ‘‘adaptive
to focus on ‘new’ projects, and on project management”) [4]. In order to achieve this,
approval in order to generate the economic national legislation that includes follow-
growth regarded as essential to electoral up measures generally includes minimum
survival, and to consequently under- requirements for monitoring as well as
resource follow-up measures. The focus enforcement measures. Enforcement
on the pre-decision phase reflects these measures include that the validity of
powerful political imperatives that are environmental approvals ceases in case of
generally intrinsic to regulatory regimes. non-compliance with permit conditions as
Furthermore, the concept of EIAs, if well as a penalty regime.
applied properly and enshrined in legally
binding provisions, can help to address As can be seen in the following country
these shortcomings because of its focus on examples, while the specific legal
the whole project life cycle [88]. requirements vary considerably, many of
the associated implementation challenges
At the same time, and also due to the are of a similar nature and are mostly
widely acknowledged implementation related to the lack of capacity, including
gap of EIAs in many jurisdictions142, institutional capacity.
there has been increased attention on
strengthening follow-up measures in the In India, the law includes provisions
academic literature, and in EIA practice as on post-environmental clearance
well as in legal frameworks [101]. Recent monitoring. Introduced in 2006, the
legislative reforms that put an emphasis project proponents are bound to submit
on strengthening EIA follow-up measures biannual compliance reports to the
were for example undertaken in South concerned regulatory authority. The Terms
Africa (2014) and China (2014). of Reference for the post environmental
clearance monitoring are included in the
The basis for the post-decision phase environmental clearance conditions. In
is frequently the Environmental addition, government officials visit the
Management (and Monitoring) Plan industrial units every six months, or each
(EMP), agreed upon in the pre-decision year, to verify the compliance status and
phase. The Environmental Management report to the Ministry of Environment and
Plan is implemented throughout the Forests. The same accounts for projects
project life cycle and it will usually be under the responsibility of the State
made an integral part of the EIA decision, Pollution Control Boards [89]. Provisions
generally through the establishment of

142 See upcoming UN Environment Global Report on

Environmental Rule of Law.

74
on non-compliance are included in India’s While the EIA law in Vanuatu does not
Environmental Protection Act.143 provide minimum requirements for
monitoring obligations by the project
At the same time, a progressive measure owner or implementer (instead these are
is the fact that the responsible authority usually determined through the approval
has the power to set up an environmental conditions including any Environmental
monitoring committee for an approved Management Plan) the law stipulates
project to assist and guide the proponent fairly detailed monitoring powers of the
in the management of the monitoring Director of the Environment Department.
program where the scale of likely impacts, The Director has the power to issue a
or the level of public concern, warrant such notice in writing when e.g. a breach of a
action [64]. term or condition of an approval has been
detected. The notice may also include the
Similarly, the project proponent in Lebanon order to suspend or cancel EIA approval
is required to submit follow-up reports to and to restore any affected area.146 Powers
the Ministry of Environment for review, related to compliance and monitoring
in accordance with the Environmental inspections further provide for the
Mitigation and Monitoring Plan. Further, department to cause a site or activity to be
the Ministry is also required to conduct inspected to ascertain whether there has
site visits to check if the Environmental been:
Management Plan is being implemented.144
The Law does not include any details 1. Any change in the environmental
regarding the frequency of submitting conditions of the site or the
monitoring reports or the frequency of environmental impact of the activity
site visits by the authorities. In case of on the surrounding area; or
any non-compliance with the submitted 2. Compliance with conditions of EIA
Environmental Management Plan, the approval, including any Environmental
project proponents shall be subject to Management Plan or mitigation
a penalty.145 This has been criticized, measure that is required as a condition
as even if the EIA decree states that the of the approval.
project proponent is responsible for any
unanticipated impact, no clear mechanism The project proponent might also be
for determining this impact and assessing required to meet the costs incurred in
the damage is provided. Furthermore, compliance inspection, including but not
it is unclear what the roles of licencing limited to convening of a review committee,
agencies are with regard to monitoring site inspection and transport expenses. The
the implementation of Environmental project proponent can appeal against a
Monitoring Plans, since according to the decision of the Director.147
law they also receive a copy of the plan
[51]. However, at a minimum the licencing The legal powers of enforcement officers
agencies incorporate environmental include, for example, power of entry into
aspects in their checklists for inspection. the premises of the proponent, sampling

143 Article 15-17.

144 Art. 11- EIA Decree 8633. 146 CAP 283, Article 26.
145 Art 58 of law 444. 147 Order 175, Article 20.

SEA systems – Legal and institutional frameworks for SEAs 75

 and interviewing.148 The law also includes content of the audit reports regarding
detailed provisions on the powers of the Environmental Management Plans and
Director for variation or cancellation closure plans. Regarding Environmental
of EIA approval.149 Under specific Management Plans, it is mandatory to
conditions, including in the case of new include verifiable findings in a structured
information or significant changes in the and systematic manner, on:
circumstances, the Director may vary the
terms of the EIA approval, including any i
The level of performance against
conditions attached to it or even cancel and compliance of an organization
the EIA approval and require the site to be or project with the provisions
restored. Prior to taking such action, the of the requisite environmental
Director may obtain the advice of an EIA authorisation or Environmental
consultant or the EIA review committee. Management Plans; and
Further, a variation of an EIA approval ii The ability of the measures
requested by the project proponent that contained in the Environmental
would result in material change in the use Management Plan to sufficiently
of the land to which the approval relates, provide for the avoidance,
must be subject to a new EIA. management and mitigation of
environmental impacts associated
Lastly, an important procedural provision with the undertaking of the
stipulates that for any matter relating to activity.150
environmental impact, evidence given by
an enforcement officer that there has been, Where the findings of an environmental
or may be, a harmful or adverse effect on audit report indicate (a) insufficient
the environment, is considered as prima mitigation of environmental impacts
facie evidence of the alleged matter by associated with the undertaking of the
the courts. In implementation of the activity; or (b) insufficient levels of
precautionary approach this means that compliance with the environmental
based on the first impression the evidence is authorisation or Environmental
accepted as correct until proved otherwise. Management Plan; the holder must,
submit recommendations to amend the
In contrast to the EIA law in Vanuatu, Environmental Management Plan in order
detailed provisions with regard to the to rectify the shortcomings identified
obligations of the project owner have in the environmental audit report.151
been adopted in South Africa. Following a The provisions on public participation
recent legislative reform in 2014, it is a legal in determining potential solutions
requirement to submit an environmental are presented in section 3.2.3 Public
audit report to the competent authority, participation.
prepared by an independent person
with the relevant expertise, at intervals Regarding the link of an EIA system to
as indicated in the environmental the environmental auditing system in a
authorization. The Regulation also country more broadly, project auditing
provides detailed requirements on the should generally be regarded as part of

148 Order 175, Article 22. 150 S34 (2).

149 Order 175, Article 23. 151 S34 (4).

76
the EIA follow-up stage as it applies to with the examined and approved EIA
the operational phase of a facility. This report, it is a legal requirement to conduct
is for example also reflected in the titles a post-assessment of environmental
of some EIA laws.152 And whereas for a impacts. There are no requirements
simple project, a traditional approach can for external monitoring. An internal
be followed, focusing on implementing the Environmental Management Strategy is
Environmental Management Plan during usually developed that details the extent of
both construction and operation, a higher monitoring, for both the construction and
level of complexity/depth will be needed operation phases.
for larger or more complex projects.
This is usually achieved by requiring an A challenge for the effective implementation
Environmental Management System of the EIA system in China is insufficient
(EMS) to be developed for any such project resources of environmental authorities
after environmental approval has been and structural challenges with regard to
obtained. The Environmental Management the environmental governance system in
System will be based on the findings of general [49]. This in particular applies
the EIA, and is subject to revision based to monitoring, which is considered to be
on changes in conditions on the ground. dominated by compliance monitoring
Environmental auditing will then be instead of broader impact monitoring
conducted to ensure that the Environmental (ecosystem and landscape impacts) [102].
Management System in place is being
implemented. During construction, the The new 2014 Environment Protection
Environmental Monitoring Plan can act Law provides for the possibility of applying
as an Environmental Management System higher penalties to achieve compliance
interface between the EIA and the next by developers and also introduces the
development phases [51]. possibility to file a public interest lawsuit.
With regard to the latter it should be noted
The legal approach taken in China with that a whole new chapter has been included
regard to follow-up measures distinguishes dedicated to the role of civil society in
between the construction and operation environmental protection [49].
phase of an approved project, providing
the opportunity to adjust mitigation In reflection of the different legal
and monitoring measures already at this approaches, a key element for the
crucial stage. After the construction phase effectiveness of EIA follow-up measures
of the project, the developer is required is firstly, whether the legal process in place
to submit an application and necessary ensures that sufficient information is
monitoring information to the Ministry available at regular intervals throughout
of Environmental Protection or the the life cycle of the project. Secondly,
Environmental Protection Bureaus for that based on this information adequate
a follow-up inspection. Operation can arrangements are put into place to use the
only start after compliance with approval findings in a comprehensive manner. As
conditions is confirmed by the competent Abaza et.al put it, “no purpose is served by
authority. When conditions do not tally collecting data that is “shelved” and not used,
either because it is not the right information
152 E.g. Environmental (Impact Assessment and
required for impact management or because
Audit) Regulations of Kenya, 2003.

SEA systems – Legal and institutional frameworks for SEAs 77

 there are no institutional arrangements in effective EIA follow-up. Thus a permanent
place for taking action” [1]. In this context, environmental monitoring board with
the important role of public participation substantial indigenous participation can
at the follow-up stage of the EIA process provide both goals simultaneously, since
has already been highlighted in section indigenous ways of understanding and
3.2.3 Public participation. managing the environment are regularly
inherently oriented towards adaptive
An additional point to be made with regard management. Moreover, the custodial
to public participation is that monitoring responsibilities for the environment are
is also important for the purposes of “risk culturally derived and thus do not diminish
assurance”. Thus, where local people may be as time passes but must be performed
concerned about the impacts of a project on throughout a project’s life. It is therefore
a specific issue or resource, the agreement concluded that greater indigenous
to implement and fund a monitoring participation is likely to result in a stronger
programme can be an important factor in focus on EIA follow-up. And for obvious
reducing public fear and hostility regarding reasons this approach can also facilitate
the project. More generally, monitoring the application of indigenous traditional
programmes should be socially responsive ecological knowledge [88].
and credible to the public. Thus, beyond
making the results of monitoring publicly Next to strengthening public
available, it is considered useful to have an participation, including indigenous
arrangement where the local community people’s participation, entry points for
interacts more directly with the project strengthening the implementation of
owner or implementer and the control follow-up measures include amongst
agency, for example by jointly reviewing others:
the results of monitoring, identifying any
outstanding issues and agreeing on the way • Requiring a financial guarantee
forward [1]. As presented in section 3.2.3 for the implementation of follow-
Public participation, such a legal approach up measures as included in
has been implemented in South Africa. environmental licence conditions;
• Involvement of project financiers to
The benefits of public involvement at the enforce Environmental Management
follow-up stage and access to information Plans;
in the context of EIAs more broadly can • A tiered licence system (i.e. the
also be illustrated by the fact that it has been requirement to check compliance
shown that EIA follow-up in countries with terms and conditions of one
with weak environmental legislation or licence in order to grant the next
enforcement depends to a great extent on licence);
pressure from the public [51,64]. • Expanding penal and legal powers of
the competent enforcement agencies;
And with respect to optimizing indigenous • Creating a dedicated Environmental
participation in environmental Fund; and
management, the goal is regarded as • Creating regional monitoring
mutually re-enforcing with achieving networks.

78
 Key points on follow-up and adaptive management

• Follow-up measures ensure that EIA is not only about predicting impacts, but
also about compliance with environmental approval conditions (i.e. agreed
mitigation measures) and determining and addressing actual impacts of
development activities, thus making the link between EIAs and effective project
implementation and management;
• Nevertheless, most national EIA systems have a clear focus on the pre-decision
phase, including overemphasis on the EIA report itself, with the perception that
it is an end product instead of a legally binding commitment; however, there is
an increased attention on strengthening follow-up measures in the academic
literature, in EIA practice and in national EIA laws;
• The basis for the post-decision phase is frequently the Environmental
Management (and Monitoring) Plan, agreed upon in the pre-decision phase, and
generally the terms and conditions of the environmental approval decision;
• The Environmental Management Plan is not regarded as a static document,
instead the project owners should regularly be required to make ongoing
adjustments in their project in order to minimize unpredicted environmental
impacts (an approach often referred to as ‘‘adaptive management”);
• While the specific legal requirements in national EIA laws vary considerably,
many of the associated implementation challenges are of a similar nature and are
mostly related to lack of detail of the legal provisions (in particular with regard to
monitoring and enforcement powers) and lack of capacity;
• Key elements for the effectiveness of EIA follow-up measures are (1) whether the
legal process in place ensures that sufficient information is available at regular
intervals throughout the life cycle of the project, and (2) that based on this
information adequate arrangements are put into place to use the findings in a
comprehensive manner (i.e. enforcement measures);
• With respect to optimizing indigenous participation in environmental
management, the goal is regarded as mutually re-enforcing with achieving
effective EIA follow-up;
• There are a number of entry points for strengthening the implementation
of follow-up measures, including expending the powers of the competent
enforcement agencies, creating regional monitoring networks and requiring a
financial guarantee for the implementation of follow-up measures.

In relation to the first point, the project performance the funds deposited will be
implementer for mining projects in reimbursed to the project implementer
Mongolia is for example required to according to certain schedules. It should
make a 50 percent deposit of the required be noted therefore, that the Environmental
costs for the annual implementation of Management Plans are only approved for
the Environmental Management Plan 5 years and that following the 5 years they
in a special government account for will be reviewed together with the detailed
environmental protection. In case of good EIA report.

SEA systems – Legal and institutional frameworks for SEAs 79

 The Environmental Law in Lebanon creates b. In other countries, a central
the framework for the establishment of an dedicated EIA agency has been
Environmental Fund to provide additional established to provide oversight
resources for monitoring activities on and review of the EIA system and
environmental matters which could be guidance for EIA implementation
used for EIA follow-up. However, the fund (often in cases where sectoral
has not yet been implemented [51]. agencies play a central role in the
EIA process, including regarding
With regard to the last point in the EIAs as a pre-condition for
list, the suggestion has been made in sectoral permitting).
relation to India to develop co-ordinated 3. Public participation requirements
monitoring plans for areas together with are being expanded in some countries,
industries and monitoring authorities. It is while at the same time mostly being
assumed that such an integrated effort for limited to the scoping and review
bringing together the expertise, funds and stage. More recently adopted legal
operational support for monitoring will measures to strengthen public
increase the reliability of the data and, in participation include the need to
addition, will address the issue of paucity publicly respond to inputs made and
of resources [89]. to justify the (final) decision on EIA
approval or disapproval. At the same
3.3 Emerging trends time, rights for participation at face-
1. While there is generally a broad spread to-face meetings are mostly restricted
of EIA legal requirements globally, to the (directly) affected public, to
there has been a development towards be determined at the discretion of
weakening the EIA process in some the proponent and/or the authority.
countries in order to speed up the Obstacles for active participation,
process for economic development such as lack of capacity, are only being
and growth. This development goes addressed in limited cases.
against the principle of non-regression 4. Legal provisions on access to EIA
which prohibits any recession of relevant documents are being
environmental law or existing levels strengthened in a number of national
of environmental protection. The EIA frameworks, reflecting the wide
principle is not recognized as legally range of media now available. Only
binding, but is emerging in states and a number of approaches however
at an international level [103]. address issues such as language
2. With regard to the legal and barriers or different levels of education
institutional framework for EIAs two and knowledge systems, through
major trends can be observed: for example requirements regarding
a. In some countries, there is a the EIA report format. Also only in
move towards decentralization exceptional cases are documents that
with regard to EIA oversight and/ are developed during the follow-up
or implementation, including phase being made publicly available.
follow-up (often where previously 5. While the opportunity to appeal
a central environmental agency against a decision in the EIA process
was the sole authority in charge); by the aggrieved person is generally

80
 provided by law, some recent laws ood practices.154 In relation to EIAs this
also provide the right to appeal for can be seen by an increasing number
environmental non-governmental of countries directly incorporating
organisations in the form of a public these environmental rights into their
interest lawsuit. EIA procedures.155
6. The above three points regarding access 7. In order to achieve better compliance,
to information, justice and particularly recent legal revisions often strengthen
public participation in environmental the penalty regime, including by
decision-making, are all strongly linked creating liability for different actors
to human rights law, and particularly involved in the EIA process, such as
to certain procedural rights (often EIA consultants.
now termed “environmental rights”). 8. An increased focus on follow-up
At the international and regional can also be observed in more recent
levels, recognition of these procedural legislation, including through the
obligations can be seen in a number of establishment or strengthening
key instruments including Rio Principle of rules regarding monitoring,
10 and the Aarhus Convention, and reporting and response actions such
in relation to indigenous peoples, the as environmental permit variation and
2007 UN Declaration on the Rights of cancellation, and generally through
Indigenous Peoples. In addition at the better links to a country’s audit system.
national level, an increasing number Nevertheless, the pre-decision stage is
of countries have adopted specific still generally the focus and only in
laws or constitutional provisions exceptional cases have provisions on
relating to access to environmental public participation during follow-up
information.153 Recognition of the been established or strengthened as
links between human rights and the well.
environment generally has greatly 9. Linked to developments in
increased in recent years, as illustrated international and regional policy
and indeed catalysed by the work of UN
Environment, the Office of the High
Commissioner on Human Rights and 154 See the website of the Special Rapporteur on
Human Rights and the Environment (Professor
the Human-Rights Council-mandated John Knox) available at: http://srenvironment.
Special Rapporteur on Human Rights org/, and his 2015 Good Practices Report to
and the Environment and others, the Human Rights Council available at: http://
environmentalrightsdatabase.org/which describes
to elucidate and operationalize key more than 100 good practices in the use of human
linkages in this area, and to highlight rights obligations relating to the environment.
One-page summaries of the good practices
are also available on a searchable, stand-alone
website: http://environmentalrightsdatabase.org/.
The website of UN Environment is also a good
resource with links to a number of recent reports
and studies on the linkages between human rights
and the environment including in the context of
153 For example Chile’s Environmental climate change. See http://www.unep.org/divisions/
Framework Law; Article 112 of the Norwegian delc/human-rights-and-environment.
Constitution which specifically provides for 155 See for example one-page summary of “Good
“a right to information on the state of the Practices in relation to public participation in EIA
natural environment and on the effects of any procedures - laws of multiple states” available at:
encroachment on nature that is planned or carried http://www.ohchr.org/EN/Issues/Environment/
out” and the Right to Environmental Information SREnvironment/Pages/GoodPracticesCategories.
Act adopted by the Czech Republic. aspx.

SEA systems – Legal and institutional frameworks for SEAs 81

 agendas, increased focus can be 12. While the EIA process per se is
observed in more recent EIA legislation not about implementing a specific
on issues such as climate change environmental standard, but rather
and human health. In some cases, about ensuring that all relevant
respective provisions are introduced information is available for informed
in non-EIA legislation. In addition, decision-making, including through
several non-binding guidelines have public participation, some rather
been developed, including with regard recent laws contain some substantive
to how to consider ecosystem services guidance with regard to mitigation,
in EIAs. A very recent emerging issue such as on compensation and
is sea bed mining where plans to adopt offsetting.
specific guidance materials have been 13. With respect to triggers for recent EIA
announced by concerned countries. legal reforms the incentive to comply
10. In some countries there is a shift from with international or regional legal
EIAs to Environmental and Social agreements or policy agendas features
Impact Assessments (ESIAs) as the prominently. Another identified trigger
key term. was the observation that in some cases
11. Provisions on cumulative impacts where EIA systems had been managed
and on assessing alternatives have by sectoral authorities, there was a
been further detailed/fleshed out in lack of credibility in relation to the
recent legislation in order to ensure outcomes of the assessments and the
their proper implementation. In some final decisions being made.
cases this has been done vis-à-vis SEA
processes in a country or region.

82
 SILVER MINES OF CERRO RICO POTOSI, BOLIVIA BY VLADIMIR MELNIK.

SEA systems – Legal and institutional frameworks for SEAs

83
 Chapter 4
SEA systems – Legal and institutional frameworks
for SEAs

4.1 SEA arrangements

As with the EIA process, a critical issue
4.1.1 Triggering SEAs is at what point in time the SEA process
needs to be started. In most cases, SEAs are
The triggering point for SEAs is the initiated once the first version of the plan,
intention of a government agency to programme or policy has been drafted, thus
adopt a plan, programme or policy. A once a number of important (strategic)
key difference to the EIA process is that decisions related to the plan, programme
instead of project proponents, whether or policy have already been made. In these
private or public, legal SEA requirements cases SEAs evaluate different development
are generally “only” binding for public scenarios (including alternatives and their
institutions. Therefore, SEAs are generally cumulative impacts) and prepare an SEA
initiated by the same public institution and report which might be subject to external
only in some cases overseen by another or public review, prior to the adoption
body, for example a central environmental of the plan, programme or policy. In
authority. Due to these characteristics of other cases, SEAs are introduced earlier
SEAs, political commitment, including a on in the decision-making process, at the
feeling of trust in the potentials of the SEA time of setting strategic aims and goals
process, as well as the backing up of the and therefore regularly having a wider
SEA process by legislation, are considered spectrum of alternatives [105].
important elements for SEA effectiveness
[104].

Key points on triggering SEAs and key elements of the process

• SEAs are generally initiated by the same public institution and only in some cases
overseen by another body;
• Key elements of an effective SEA process include political commitment, a feeling
of trust in the potentials of the SEA process and the backing of the SEA process by
legislation;
• SEAs regularly have a wider spectrum of alternatives if introduced at the time
of setting strategic aims and goals, and not only once a first version of the plan,
programme or policy has been drafted.

84
4.1.2 SEAs and other planning
in planning processes and political
processes
discourse, promoting SEAs as a new
There are challenges in differentiating SEAs process may not be a good way forward.
from other planning processes. In some Instead countries should examine how
cases, principles and elements of SEAs will “existing planning and policy development
be integrated in other planning processes, processes might benefit from the adoption

Key points on SEAs and other planning processes

• SEAs can be an independent process or integrated within other planning

processes;
• In many countries with a perceived shortcoming of EIAs, a strong need for
adopting a legally binding and independent SEA process has been identified.

and in other cases there may be benefits to of specific SEA thinking and methods, so the
the kind of structure that SEAs bring – in net effect is that SEAs are integrated with
terms of the process and links to EIAs. planning processes in a way that is acceptable
to planners and policy-makers”.
The approach taken depends on the type
of plans, programmes and policies that The majority of SEAs undertaken around
are made subject to the SEAs requirement the world are at the ‘formal’ end of SEA
(higher or lower policy level or both), as typologies [108]. In countries where no
well as on the existing planning procedures legal requirements have been adopted to
and planning practice in a country. In date related to SEAs, and where there is a
that context, reference to informal or perceived severe shortcoming of EIAs (as
“para-SEA” [106] should be made. This “piece meal” – for example with regard
relates to countries where no formal SEA to mining in Africa), a strong need for
requirements have been adopted, but adopting legal SEA requirements and
where nevertheless “sustainability issues processes has been identified in order
are effectively considered and where SEAs to influence EIAs through action at the
ultimately lead to political change” [107]. In regional and strategic level [12,54,109].
such situations, there is in fact no longer
a need or a possibility to differentiate 4.1.3 Institutional set-up (and the
between SEAs and planning. As outlined link to EIAs)
in section 1 Introduction and Objectives, Regarding the link to EIAs, it is widely
such close integration of “SEAs” in the acknowledged that in order to be effective,
planning process can be considered as (formal) SEAs need to have direct tiering
the ideal scenario, since it ensures that and terms and conditions for project
environmental considerations receive specific developments and regional
adequate attention from the very beginning monitoring programs. In other words:
of the process, alongside economic and SEAs and project-based EIAs should be
social considerations. In cases where the considered in sequence. Following the
concept of SEAs is already well entrenched assessment of a range of development

SEA systems – Legal and institutional frameworks for SEAs 85

 Table 8: Overview of section content related to SEA systems

  SEA systems

Specific Integration SEA laws Integration Cabinet Voluntary Tiering of the

issue within EIA within sectoral Directive guidelines SEA and EIA
legislation laws process

Case study Kenya; Indonesia; New Zealand Canada South Africa Kenya;
countries Tanzania; EU; Indonesia
and Mongolia; Indonesia;
illustrative China Panama
examples*

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

options (alternatives) at the SEA-level by SEAs. In that context and with regard
as well as the likely cumulative impact to Egypt, the need for a “zoning atlas” is
of each scenario, project-based EIAs will highlighted, that would bring together
be triggered by specific development mapping and zoning efforts in the country
applications in order to assess in greater among various institutions [112]. And
detail the likely impacts of available with respect to mining in Africa it is
project implementation options [109– concluded that strategic assessments
111]. Nevertheless, even if SEAs are within the context of national and regional
ideally applied before licences are issued, development processes are needed that
post-project approval SEA can also be inform conservation targets, but also goals
important to both industry and regulators for mining, transport, employment and
for regional monitoring and improving agriculture [109].
project performance [111].
Among the countries that have introduced
Next to tiering another important SEAs as a legal requirements, a range of
element for effective SEA is the need for different approaches have been adopted.
cross-sectoral cooperation in order to In a number of countries (e.g. in Kenya
adequately assess cumulative and cross- and Tanzania), legal provisions have been
sectoral impacts. This can for example integrated within EIA legislation whereas
be achieved through the establishment in others (e.g. in Indonesia and Canada)
of a cross-sectoral committee, ideally separate laws or regulations have been
playing a role at the scoping as well as at adopted. In some cases, legal requirements
the review stage, or generally the legal have also been integrated within other
requirement to consult key agencies, sectoral legislation (e.g. in New Zealand).
in case there is one sectoral institution There is also a great variability in the scope
spearheading the SEA. In other cases (for of the tiers of strategic decisions, thus
example when planning for the offshore whether plans, programmes and policies
environment), a multi-sectoral approach are covered or only a subset thereof, as well
will be required for the comprehensive as the sectors covered [113]. It should also
consideration of the environment at the be recalled that in contrast to EIAs there is
strategic planning level [111]. This issue only a limited number of countries among
is linked to the coverage of SEAs and i.e. the approximately 40 countries that have
the type of plans that need to be informed SEA systems in place, which introduced

86
legal requirements to conduct SEA [12]. 2013 implementing regulations include
A prominent example of a voluntary SEA detailed provisions, relevant guidance
system has been implemented in South for the SEA process can only be found in
Africa. SEAs are used on an ad hoc basis non-binding guidelines on SEAs adopted
and not according to a legally-prescribed in 2012. In addition, a new section in
process. Instead, a number of SEA guidance the Environmental Management and
documents have been adopted. Coordination Act, introduced through the
2015 amendment, makes SEAs an explicit
In the following, a number of SEA legal requirement and provides a definition
arrangements illustrating the wide of those plans, programmes and policies
variety of approaches will be presented. that are subject to SEAs.158
The first two examples from Kenya and
Tanzania156 show amongst others that a On the issue of tiering of the SEA and
clear distinction between EIAs and SEAs as the EIA process, the law stipulates that
two different processes is not always made no licensing authority under any law
in national legislation. in force in Kenya shall issue a trading,
commercial or development permit or
In Kenya, the 1999 Environmental license for any micro project activity
Management and Coordination Act, likely to have cumulative significant
in the pre-2015 version, included SEAs negative environmental impact, before it
due to its broad definitions of ‘EIAs’ and ensures that a strategic environmental plan
‘project’. However, the term SEA and encompassing mitigation measures, and
a specific definition of SEAs was only approved by the National Environmental
introduced in the 2013 implementing Management Authority, is in place.159
regulation157 and subsequently through the
2015 amendment. As well as including a The criticism has been made that SEAs
definition of SEAs, the 2013 implementing need to be given more prominence in
regulations include provisions specifically the law and made obligatory for certain
for SEAs under Part VI on miscellaneous policies, plans and programmes so that
provisions. It is stipulated that SEAs guidance and evaluation of project-level
shall be conducted by lead authorities EIAs is enhanced [46]. SEAs have therefore,
in consultation with the National for example, been included in the draft
Environmental Management Authority Petroleum Bill that is currently being
and that the focus is on considering finalized. Further, and with regard to the
effects of implementing alternative policy SEA guidelines, specific ‘how to’ measures
scenarios. The clear distinction between for the implementation of many of the
EIAs and SEAs in the 2013 implementing ‘deliverables’ are considered to be lacking.
regulation indicates that provisions are Instead they are characterized as purely
only of relevance to SEAs, if SEAs are aspirational and are lacking legal force
being explicitly referred to. As opposed (Mutui et al).
to the project-level EIAs, for which the

156 Please note that the legal framework for SEA in

Tanzania is not complete yet. Draft SEA guidance
is currently circulating for review. 158 Environmental Management and Coordination
157 Environmental (Impact Assessment and Audit) Act no 8 of 1999, amended in 2015, Section 57A.
Regulations of Kenya, 2013. 159 Article 4 (3) of the Regulation.

SEA systems – Legal and institutional frameworks for SEAs 87

 As well as provisions on the EIA process, the legislation and Mongolian legislation also
Environmental Management Act of 2004 of give an indication when the SEA should be
Tanzania also includes specific provisions initiated.
on environmental assessments of plans,
programmes and policies, thus SEAs.160 The European Union adopted SEA
Based on the definition of project in the legislation in 2001 for plans and
2005 Environmental Impact Assessment programmes, with a view to promoting
and Audit Regulation, the Regulation deals sustainable development.164 The legislation
with both EIAs and SEAs. However, the has been transposed into national
process outlined in the law is designed to legislation in all member states. Countries
deal with project-level EIAs, and does not aspiring to EU membership are also
provide further detail on any of the SEA- aligning their SEA arrangements with the
related provisions in the Environmental EU framework as well as the SEA Protocol
Management Act; draft SEA guidance is to the UNECE Convention on EIAs in
currently circulating. a transboundary context (for example
Georgia), the development of which was
According to the Environmental influenced by the SEA legislation of the
Management Act, each public institution is European Union [12].
required to conduct an SEA when preparing
regulations, public policies, programmes According to the 2001 EU legislation, plans
or development plans. And also when and programmes, including modifications
preparing a Bill, the drafting institution or to them, are those:
person responsible is required to conduct
an SEA. The law also specifies in which • which are subject to preparation
cases it is required to undertake an SEA and/or adoption by an authority at
for a Bill.161 In that context it should be national, regional or local level or
highlighted that the law also stipulates that which are prepared by an authority
where a mineral or petroleum resource is for adoption, through a legislative
identified and before specific details are procedure by Parliament or
planned or a hydro-electric power station Government, and
or a major water project are planned, • which are required by legislative,
the Ministry responsible for mining, regulatory or administrative
energy or water shall carry out an SEA.162 provision.165
Importantly, the Minister of Environment
is empowered to review any decision not to The legislation provides for the SEA to be
undertake an SEA.163 carried out during the preparation of a
plan or programme and before its adoption
In other pieces of national (and regional) or submission to the legislative procedure.
legislation, a clear separation between Further, Member States are obliged to either
EIA and SEA processes is made from the integrate the requirements into existing
very beginning. European Union SEA procedures for the adoption of plans

160 Part VII. 164 EC Directive 2001/42/EC (European Parliament

161 Article 104 (1). 2001), Article 1.
162 Article 105 (1). 165 EC Directive 2001/42/EC (European Parliament
163 Article 104 (IV). 2001), Article 2.

88
and programmes or incorporate them In China, the 2014 Environmental
into procedures specifically established Protection Law stipulates that any
to comply with the legislation. With development plan and construction
regard to sequencing of different impact project is subject to an EIA.167 Thus, SEAs
assessments, the legislation stipulates for plans (commonly referred to as PEIA in
that where plans and programmes form China) and EIAs for construction projects
part of a hierarchy, “Member States shall, are mandatory requirements. In addition,
with a view to avoiding duplication of the the law requires departments of the
assessment, take into account the fact that the State Council and people’s governments
assessment will be carried out, in accordance of provinces, autonomous regions and
with this Directive, at different levels of the municipalities directly under the Central
hierarchy”. Government, to take into full account their
environmental impacts when developing
In Mongolia, the SEA process was economic and technical policies (SEAs
introduced by the 2012 Environmental for policies). Prior to the introduction of
Impact Assessment Law as a separate type PEIAs by law, Regional EIAs (REIA) were
of impact assessment from EIAs, covering the main mode of SEA implementation in
plans, programs and policies. According the country and still play an important role
to the law, the line ministry that initiates today [114].
and develops the policy, program and plan
shall ensure that the strategic assessment PEIAs shall be applied to plans for land
is conducted during the development of utilization, and construction, development
the document, and submit the assessment and utilization plans of regions, drainage
report along with the accompanying areas and sea areas and special plans for
documents to the central administrative industry, agriculture, animal husbandry,
body in charge of environmental affairs, forestry, energy resources, water conservancy,
prior to getting it reviewed at the cabinet communications, urban construction,
meeting.166 In addition, and as already tourism and natural resources proposed
outlined in section 3.2.2 Scoping and impact and developed by relevant ministries and
analysis, the law introduces cumulative commissions of the State Council and local
impact assessments as a third type of governments and their departments. The
impact assessment next to EIAs and SEAs, plan owners are responsible for initiating
which takes place at a regional level and and conducting SEAs when in the process
defines the methods and actions that assist of drawing up plans.
elimination and mitigations of impacts
in a specific area. Detailed regulations Regarding the challenge of implementing
on conducting strategic and cumulative a multi-sectoral approach, it is regarded
impact assessments have been adopted in as a shortcoming that the national
2013, followed by a Ministerial Order with economic and social development plans
detailed guidelines for cumulative impact (the most important integrated plans
assessment. with considerable potential impacts on
the environment), are generally exempted
from the SEA requirement [114].

166 Article 5.1. 167 Article 19.

SEA systems – Legal and institutional frameworks for SEAs 89

 There are also a number of recent Regarding tiering of SEAs and EIAs, the law
legal developments with regard to SEA provides that an activity can be exempted
arrangements. In the following, two from the obligation to conduct a full EIA
examples from Indonesia and Panama if the location of the activity is within a
will be presented which aim at integrating district/city that has already adopted a
SEAs in planning processes. detailed spatial plan and/or a district/city
strategic area spatial plan.171
In Indonesia the requirement to undertake
SEA for policies, plans and programmes In Panama, the specific provisions on SEAs
was introduced with the adoption of were only adopted in 2017 through an
the new Environmental Protection and Executive Decree. SEAs are undertaken by
Management Bill in 2009. The objective the respective public institution under the
of the SEA (abbreviated to KLHS in oversight of the Ministry of Environment,
Bahasa) is to ascertain the principles which is responsible for review and
of sustainable development, and the approval of the SEA report. SEAs are
central government, as well as the regional required for all public plans, policies and
governments, are required to conduct SEA. programs provided that:
The law specifies the type of documents
for which SEAs need to be undertaken, • They have been included in the
with further information included in the list prioritized by the Ministry of
SEA implementing regulation, which Environment (the list is still pending)
was only adopted in 2016 and includes • There is an expressed request from the
detailed provisions on the SEA process.168 Ministry of Environment either on its
Documents covered include spatial plans own initiative or at the request of civil
as well as national and regional medium society or a private entity; or
and long term development plans, thus • The plan issuing institution
also plans which regularly implement a voluntarily requests it.172
multi-sectoral approach.
In contrast in Canada, the SEA system
The head of the unit planning to issue has been introduced by way of a Cabinet
a respective document (at the national, Directive and not by law. The Cabinet
provincial or municipal level), governs the Directive on the Environmental
making and implementation of the SEA.169 Assessment of Policy, Plan and Program
Further, the SEA report is considered Proposals sets out the expectations
an inseparable part of the policy, plan or of ministers and Cabinet on when an
program assessed.170 Despite the rather SEA should be conducted and what it
recent adopted guidance, there is already a should consider.173 It requires that the
considerable number of SEAs undertaken. environmental analysis be fully integrated
into the proposal development process. It

168 Article 15 (2) and Government Regulation of the 171 Article 13 of the 2012 Regulation on
Republic of Indonesia no 46 about procedures for Environmental Permits.
implementing Strategic environmental studies, 172 Decree 4/2017, articles 8-9.
2016, Article 3. 173 Government of Canada (2010). The Cabinet
169 Article 17 of the 2016 SEA Regulations. Directive on the Environmental Assessment of
170 2016 SEA Regulation, Article 23. Policy, Plan and Program Proposals.

90
specifies that ministers expect an SEA when the negative, environmental effects of the
the following two conditions are met: government’s policies, plans and programs.
It was also concluded that there is a lack
• The proposal is submitted to an of consensus among SEA practitioners on
individual minister or Cabinet for whether the Directive is the best method to
approval; achieve the goal of more environmentally-
• The implementation of the sustainable policies plans and programs.
proposal may result in important Further, it was observed that performance
environmental effects, either positive with respect to SEAs varies greatly across
or negative. government. Similarly the quality of SEAs
conducted was found to vary significantly,
Complementary guidelines that include sometimes within the same department.
guiding principles and describe the overall An additional finding was that where the
process were last updated in October Directive is applied, the SEA is typically
2010.174 undertaken late in the policy, plan or
program development process and thus
A 2010 evaluation of the Cabinet Directive does not include an adequate analysis of
came to the conclusion that overall SEA options for meeting objectives, or the range
has had little demonstrable impact in of environmental implications, including
contributing to the federal government’s cumulative effects. Furthermore, a lack
environmental priorities and needs. of oversight and support from central
Little evidence was found that SEAs are agencies was observed, also illustrated by
optimizing the positive, and/or minimizing the fact that there are few consequences

Key points on SEA institutional set-ups (and the link to EIAs)

• In contrast to EIAs, there is only a limited number of countries among the

approximately 40 countries that have SEA systems in place, which introduced
legal requirements to conduct SEAs
• There is a great variability in the scope of the tiers of strategic decisions, thus
whether plans, programmes and policies are covered or only a subset thereof, as
well as the sectors covered.
• The provision of guidance to EIAs through direct tiering with EIA processes and
cross-sectoral cooperation are key elements of an effective SEA system
• In many cases specific ‘how to’ measures for the implementation of many of the
provisions are lacking in guidance documents; instead they are characterized as
purely aspirational and are lacking legal force.

174 Government of Canada (2010). Guidelines for

Implementing the Cabinet Directive on the
Environmental Assessment of Policy, Plan and
Program Proposals.

SEA systems – Legal and institutional frameworks for SEAs 91

 to departments for inadequately needed (e.g. in Tanzania)176. In the case of
implementing SEAs. 175
Kenya, the non-binding SEA guidelines,
revised in 2011, specify that the National
However, a separate review of SEA practice Environmental Management Authority
in Canada concluded that there is no clear undertakes screening and has to decide
answer as to whether a more formalized within 7 working days. Importantly, there
and legislated SEA would be advantageous. is generally only one process to be applied
Instead, a key finding was that some of for all SEAs, and not a number of different
the ‘better’ SEA experiences in Canada processes that depend on the project
have “neither carried the SEA name tag nor categorization, as in the case for EIAs (with
occurred under formal SEA requirements; different levels of detail depending on the
rather, such cases have been integrated determined likely impact threshold). In
with government or private sector [plan, addition, SEA legislation normally only
programme and policy] development” [110]. includes few or no explicit provision on
the screening stage and the term screening
4.2 The different steps of the SEA is generally absent, too. Instead the focus is
process mostly on scoping and/or review and final
In the following sections the different decision-making.
steps of the SEA process, as outlined in
figure 2 (highlighted in blue), will be The approaches to determine whether a
presented, including case studies and SEA needs to be undertaken is similar to
illustrative examples from legal approaches that for an EIA. These are commonly the
implemented in countries around the listing of plans, programmes or policies for
world. Due to the iterative nature of SEAs, which SEAs are mandatory, the provision
individual SEA processes may result in a of criteria to determine the need on a case-
repeat of steps, thus the outlined process by-case basis for other plans, programmes
should be regarded as illustrative rather and policies, as well as a hybrid approach.
than definitive. In pursuit of the objective to sequence or
tier SEAs and EIAs, some laws also link the
4.2.1 Screening screening decision in the SEA process to
Since an SEA is usually initiated by the plan, the EIA legal systems.
programme or policy-issuing institution, it
is the same institution which conducts the The following case study from the
screening in order to determine whether European Union provides an example
an SEA is required. Some laws however of rather detailed provisions regarding
provide for a central environmental the screening stage. This includes a link
agency to review the decision made, in to the nature legislation of the regional
particular if it is decided that no SEA is organisation.

The SEA legislation of the European Union

175 Evaluation of the Cabinet Directive on the
Environmental Assessment of Policy, Plan and stipulates that during the preliminary
Program Proposals, 30 June 2009. https://www. assessment, and thus in order to narrow
canada.ca/en/environmental-assessment-agency/
programs/strategic-environmental-assessment/ down the application of SEAs to those
third-party-evaluation-implementation-cabinet-
directive.html.
176 The Environmental Management Act of Tanzania,
2004, Article 104 (4).

92
Figure 2: SEA process flowchart, adapted from [115]

SEA systems – Legal and institutional frameworks for SEAs 93

 Table 9: Overview of section content related to SEA screening

  Screening

Specific issue Role of an environmental agency Detailed legal provisions

Case study countries and illustrative Kenya; Tanzania EU

examples*

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

plans and programmes that are likely States shall ensure that the screening
to have significant environmental effects, decision, including the reasons for not
Member States are required to conduct requiring an SEA, are made available to the
SEAs for a number of listed sectors. This public.177
sets the framework of future development
consent or projects for which EIAs are The SEA Legislation of the European
mandatory under the EIA legislation of Union has been transposed into national
the European Union. legislation in all Member States, for
example the 2013 law on environmental
Furthermore, SEAs have to be carried assessment of plans and programs of
out for plans and programmes which, Denmark, amended in 2014. In 2017 the
in view of the likely effect on sites, have legislation was replaced by a consolidated
been determined to require an assessment EIA-SEA Act.178
pursuant to the nature-related legislation
of the European Union (namely the SEA legislation generally does not include
Habitat Directive). An exception is made any requirements for consultation at the
for cases in which plans and programmes screening stage, but for example in the case
only refer to the use of small areas at local of Denmark the SEA law provides for the
level or minor modification to plans and consultation with concerned authorities
programmes, unless likely significant before taking the screening decision.179
effects are determined. The likely significant
effect also needs to be determined for all 4.2.2 Scoping and impact analysis
other plans and programmes not listed Whereas several laws include content
in the legislation, thus on a case-by-case requirements for SEAs of differing levels
basis. This does not account for plans of detail, only some deal with scoping as
and programmes with the sole purpose of a separate step in the process. This is for
serving national defence or civil emergency example the case in Denmark and China.
as well as financial or budget plans and
programmes, all of which are generally Whereas in Denmark the responsible
exempt from the SEA requirement. As authority is explicitly required to define
in the case of the EIA legislation of the
European Union, criteria to be taken 177 Directive 2001/42/EC of the European Parliament
into account for the determination of a and of the Council of 27 June 2001 on the
assessment of the effects of certain plans and
likely significant impact are stipulated programmes on the environment, Article 3.
in an Annex to the legislation. The SEA 178 Lovbekendtgørelse nr. 448 af 10. maj 2017 om
miljøvurdering af planer ogprogrammer og af
legislation also provides that Member konkrete projekter (VVM).
179 Paragraph 32.

94
 Key points on screening in SEAs

• Some laws provide for a central environmental agency to review the screening
decision made by the plan, programme or policy-issuing institution;
• SEA legislation normally only includes few or no explicit provisions on the
screening stage and the term screening is generally absent. Instead the focus is
mostly on scoping and/or review and final decision-making;
• Despite the recognized importance of consulting the public early on in the
process, SEA legislation generally does not include any requirements for
consultation at the screening stage;
• In alignment with the Aarhus Convention a number of countries requires the
authorities to make a screening decision public, including the reasons for not
requiring a SEA in case of a negative decision.

the environmental report content, the expert for review by the Authority, which
specific scope for plans in China are set needs to communicate its decision within
jointly by the responsible authority and 21 days.
the competent environmental agency, and
are submitted to the State Council for In all cases where no specific scoping
approval. provisions are included, it can be assumed
that the plan, programme or policy
In Kenya the 2003 EIA (and SEA) Regulation initiating institution, determines the
generally states that SEAs are undertaken scope of the SEA, guided by the content
by lead agencies in consultation with the requirements stipulated in national
National Environmental Management legislation and potentially additional non-
Authority, with further details included binding guidelines.
in the non-binding SEA guidelines. With
regard to scoping, the guidelines specify A number of countries include a
that the lead agency needs to submit the requirement for public participation at
scoping report prepared by a licensed SEA the scoping stage. Among the legislation

Table 10: Overview of section content related to SEA scoping

  Scoping

Specific issue Responsibility Public participation Content requirements, including re

alternatives

Case study countries Denmark; China; Kenya; Panama; Mongolia; Kenya; Tanzania; Indonesia; Denmark;
and illustrative Kenya Indonesia Mongolia
examples*

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

SEA systems – Legal and institutional frameworks for SEAs 95

 Content requirements
reviewed, the Kenyan legislation makes
reference to (potential) stakeholder Most SEA relevant legislation reviewed,
meetings at the scoping or assessment stage, included the objective and purpose of
but this is not a mandatory requirement.180 SEAs as well as specifications on content
And the very recent legislation of Panama requirements. Nevertheless, it has been
includes the requirement to develop noted that often vague and inadequate
a stakeholder engagement plan at the environmental objectives seem to be a
scoping stage181, but does not stipulate major problem at the SEA scoping stage.
any details as to the content of the plan. The balance between environment
It only states that the entity responsible and socio-economic issues is regularly
for developing the SEA should convene regarded as unclear and the scope of SEAs is
the relevant public institutions according generally too broad. This also applies to the
to the evaluation object, and other key requirement to assess alternative scenarios,
actors for its implementation. In addition where insufficient guidance is provided,
public participation is recommended in including on baseline assessments [104].
the Kenyan SEA guidelines, starting at the
scoping stage. More information on public As a result it has been found that there is
participation, including with regard to the an important deficit in the integration
scoping stage in the case of Mongolia and of biophysical, social, institutional, and
Indonesia, will be provided in section 4.2.3 economic aspects in SEAs, which can be
Public participation. addressed by using the concept of ecosystem
services. Instead, assessments are often
Responsibilities for preparing SEAs significantly restricted to a number of
Generally SEA legislation does not also biophysical aspects of the environment – at
include the requirement to commission least in cases where assessed initiatives have
external experts for the assessment. direct territorial materialization [105]. In
However, Mongolia’s relevant legislation addition, even though considered to be at
includes the need for the SEA to be the core of SEAs, alternative assessment
undertaken by an authorized professional is usually limited in practice, in particular
organization, with the collaboration of when compared to academic expectations.
think tanks, independent experts and With regard to the system governing SEAs
inspectors. And Panama’s legislation of offshore developments in the United
provides for the option of having the Kingdom and (Atlantic) Canada, it has for
SEA elaborated by external consultants example been concluded that the degree
instead of specialists of the responsible to which alternatives could be considered
institutions.182 was constrained by “the tier of application
at the plan or program level, the regulator’s
mandate of issuing rights, and the level
of pre-existing off-shore development.” In
addition, the absence of broader policy-
level alternatives was listed as a deficiency
in the SEA process [111]. The observation
that alternatives are seldom assessed in
a comprehensive manner has also been
180 Article 42 and 43 of the EIA Regulation.
181 Executive Decree No. 4 of 2017.
made with regard to SEA implementation
182 Decree 4 of 2017, article 12. practice in China [114].

96
In the following a number of legal resource is identified, further requirements
approaches will be presented. These are outlined for the assessment of
illustrate the wide range of approaches the marked area. These include
to determining the scope of SEAs, (1) identification of ecologically sensitive
including with regard to the definition and protected areas; (2) identification
of environment, and mitigation and and description of communities around
monitoring measures. In addition, the area; (3) recommendations for
and in line with the rationale behind land reclamation and limitations on
establishing SEA legal systems as well as development in different areas; and
EIA legal systems, the presented examples (4) considerations related to assessing
are representative of the fact that most cumulative impacts.184
national SEA legislation puts emphasis on
the requirement to assess alternatives. In Indonesia, the Environmental
Protection and Management Act specifies
In Kenya, the 2003 EIA (and SEA) that the assessment should among others
Regulations state that the assessment shall include information on
consider the effect of implementation
of alternative policy actions taking into • The capability of the environment to
account a number of considerations support and carry development;
reflecting a broad definition of • Estimated environmental impacts and
environment, including for example risks;
socio-economic factors, human settlement • Performance of service/ecosystem
and cultural issues.183 Furthermore, the service;
Regulation includes detailed provisions on • Efficiency in the utilization of natural
the content of the SEA report, including with resources;
respect to the coverage of the environmental • Vulnerability and capacity of
analysis and recommendations, outlining adaptation to climate change; and
suggested policy changes and proposed • Security and potential of biological
mitigation measures. However it has been diversity.
criticized for focusing much less on the
environmental aspects, and more on the The 2016 Regulation on SEAs includes
other sustainability aspects [116]. additional detailed guidance on conducting
SEAs and the minimum content that needs
In Tanzania, the 2004 Environmental to be included in the report. In addition
Management Act determines the content to the factors listed in the Environmental
of each SEA statement prepared, including Protection and Management Act, these
regarding alternatives and practicable “sustainability issues” include:
measures to mitigate any likely adverse
effects. The Minister of Environment also • The level and status of the number
has the competence to prescribe additional of poor people or the livelihoods
content requirements by regulation. of a community and the threatened
Regarding the requirement to undertake sustainability of community
SEAs where a mineral or petroleum livelihoods;

183 Article 42 (2). 184 Article 104 and 105.

SEA systems – Legal and institutional frameworks for SEAs 97

 • Risks to public health and safety; and/ improve a policy, plan, and/or program
or shall serve as a basis in formulating
Threats to the protection of certain areas recommendations for improvement for
traditionally inhabited by communities the SEA decision.
and indigenous and tribal peoples.185
In Denmark, the law outlines the content
The Regulation also includes a dedicated requirement of the assessment and states
article on assessing alternatives.186 It that reasonable alternatives should be
describes different dimensions of assessing taken into account. Further, a description
alternatives, such as “change or adjustment of the measures envisaged concerning
of size, scale, and location that better meet the monitoring needs to be included.187
considerations Sustainable Development”
and “giving direction or signs to maintain Finally, the legal approach taken in
or enhance ecosystem function”. It is further Mongolia should be highlighted. According
specified that alternative formulations to to the national legislation, SEAs, as an

Box 2: An illustrative example on the scope of SEA from the United

Kingdom – The development of the Humber Flood Risk Management
Strategy
As part of the scoping stage, the Environment Agency set two types of SEA objectives:
appraisal objectives and aspirational objectives. Not all of the aspirational objectives
were significant at the strategic level. However, they are intended to guide the Agency’s
work in the Humber and during implementation of the strategy, when a more detailed
EIA will be needed for each of the capital scheme projects. They were also used as an
additional test of the overall performance of the strategy and its contribution to the
Agency’s vision.
Appraisal
Key issue addressed by the SEA at strategy level.
• Protection of people, property and infrastructure.
• Protection and enhancement of a European site.
• Port and navigation activities (geomorphology).
Aspirational
Issues identified as ‘non-strategic’ but still important.
• Risks of unknown archaeology and contamination.
• Detail of protected species.
• Local landowner concerns and aspirations

Source: RSPB (2007). Strategic Environmental Assessment – learning from practice.

Focusing on strategic issues and integrating stakeholder views.

185 Article 9.
186 Article 15. 187 Paragraph 12 and 13.

98
 Key points on scoping in SEAs

• Whereas several laws include content requirements for SEAs of differing levels of
detail, only some deal with scoping as a separate step in the process;
• A number of countries include a requirement for public participation at the
scoping stage;
• Vague and inadequate environmental objectives are often a challenge; in
particular the balance between environment and socio-economic issues is
regularly regarded as unclear;
• National legislation regularly requires assessing alternatives, but implementation
is often lacking;
• In some cases sectoral laws provide specific content requirements for specific sectors
or activities.

4.2.3 Public participation

assessment separate from the cumulative
impact assessment, focus on climate As in the case of EIAs, public participation
change and natural disasters. Detailed is a fundamental element of the SEA
regulations on conducting strategic (and process. It serves the same objective, but
cumulative impact assessments) have been at a higher level of decision-making, thus
adopted in 2013.188 defining the parameters for development,
for example in a sector or geographical
With respect to the consideration of area [1]. The need to ensure that not
climate change in SEAs, it has been noted only the most relevant environmental
that climate change mitigation, which information is available and considered
is essential to reducing greenhouse gas in the final decision-making and
emissions, has generally been dealt with implementation, but also that divergent
poorly in SEA practice, even though interests, aims and perspectives of a range
considered feasible from a technical of stakeholders are adequately taken into
perspective. Furthermore OECD guidance account, illustrates the key importance of
published in 2010 suggests that a well- making SEA a collaborative process which
performed SEA can fulfil several functions should prominently incorporate public
in relation to climate change adaptation, participation mechanisms [105].
such as improving the availability and
quality of climate information and climate At the same time differences in the
proofing of documents prepared without required administrative procedures
any reference to climate change [107]. for public participation among the
EIA and SEA process are being widely
For an illustrative example on the scope of acknowledged. This is due to the fact that
an SEA please view Box 2. the scale, scope and range of most SEAs
make them significantly different from
EIAs. This applies in particular with respect
188 2012 Environmental Impact Assessment Law of
to informal or para-SEAs as described in
Mongolia, Article 3 and 5. section 4.1.3 Institutional set-up (and the

SEA systems – Legal and institutional frameworks for SEAs 99

 Table 11: Overview of section content related to Public Participation in SEA

  Public participation

SEA stage Scoping and impact Review and decision- Follow-up

analysis making

Case study countries and Canada; Nigeria Tanzania; Panama; China; Canada
illustrative examples* China; EU

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

link to EIAs), which for example regularly happens at the review stage, with limited
do not produce SEA reports that can be influence or control of any requirement for
subject to consultation, instead the results public participation early on in the process.
are directly integrated into the planning
documents. The type of public participation In many countries these challenges are
in such contexts will thus inevitably be not visibly dealt with. Moreover, many
different from typical EIA situations and national laws make explicit reference
likely a more continuous process, since to SEA reports that are either informed
public participation requirements in this by public comments or to be made
case should be integral elements of the subject to review by the public, thus
whole planning cycle [1,108]. focusing only on a specific SEA output
document [105]. And similarly to the EIA
Another difference that is likely process, only in limited cases does national
to influence the design of public legislation provide mechanisms for public
participation mechanisms is the fact participation at the screening or follow-
that all SEA processes operate within up stage. Thus public participation is not
politically motivated decision-making generally incorporated as a key element
areas. Some governments, for example, in the crucial initial phase of strategic
may not welcome public participation at planning and/or during the post-decision
certain early stages of policy formulation phase. However, in particular with regard
[1]. In addition, SEAs appear to mainly to public participation requirements in the
influence plans through mitigation follow-up stage, it needs to be pointed out
measures, thus steering implementation that the general accountability framework
rather than affecting strategic planning in a country can potentially fulfil SEA
choices [111,117]. requirements for continued interaction
with the public during plan, programme
Finally, and linked to the last point, another and policy implementation and review,
difference to the EIA process is the fact that as can be illustrated with the example of
regularly the plan, programme or policy- Canada.
initiating authority is in charge of the SEA
process, and that only in some cases (and to Nevertheless, and even if the contribution
a limited degree when compared to the EIA of SEA requirements to “the establishment
process) does an environmental agency of participatory and inclusive arenas”
perform oversight functions. Involvement is regarded as limited, it is generally
of an “independent” actor thus only acknowledged that SEAs have the potential

100
to expand the scope of democratic control public announcement, thus at the scoping
over public policies. This is for example and assessment stage. The comments need
being achieved through dissemination and to be incorporated in the report that will
monitoring provisions that are enhancing be subject to final review by the technical
transparency [117]. In addition, there is committee, where they will be reflected
evidence that involving the public in SEAs upon. The Ministry of Environment
is likely to have influence on the final and Green Development of Mongolia
decision outcome, thus the design of the approved a detailed procedure on public
plan, programme or policy [104,111]. participation in EIAs/SEAs in 2014.

In the following, a number of legal In Indonesia, the 2009 law includes a

approaches to ensure effective public requirement to involve communities and
participation in the SEA process will be stakeholders in the SEA process.189 The
presented. These illustrate the fact that 2016 Regulation provides further details
most SEA legislation requires public by outlining that the identification and
participation “only” at the assessment and/ formulation of the issue of sustainable
or review stage, thus when an SEA is being development shall be conducted by
developed to assess the environmental gathering input from the community and
impact of a draft plan, programme or stakeholders through public consultation.
policy, and prior to final decision-making Thus, public participation is required at the
of the competent authority. Thereby, scoping and assessment stage. In addition
the most widely used mechanism is the the SEA report must be made a public
opportunity to submit comments following document. Regarding the mechanism
publication of relevant documents, despite for public participation, the Regulation
the widely acknowledged limitations of stipulates that the involvement of the
this approach, as outlined in section 3.2.3 community and stakeholders can include
Public participation. giving opinions, and suggestions; expert
assistance; technical support; and delivery
In addition to the examples presented in of information and/or reporting.190
section 4.2.2 Scoping and impact analysis Communities and stakeholders are
in which public participation is required considered to include those that are
at the scoping stage (namely Kenya and directly and indirectly affected by the
Panama), further information is detailed policies, plans, and/or programs; and
below in relation to this requirement in those with relevant information and/or
Mongolia and Indonesia. expertise on the substance of the policy,
plan, and/or program.191 In order to ensure
In Mongolia, the requirements for effective involvement of communities and
public participation for SEAs provide stakeholders the Regulation also requires
that the competent authority for impact “monitoring and evaluation” of the public
assessment shall disclose the information participation requirements “at the time
on the development program and plan
or the project through its website. It is
further required that feedback shall be
obtained from the public in the course of
189 Article 18 (1).
the development of the program or plan 190 Article 32 (2).
for a period of 30 working days following 191 Article 33.

SEA systems – Legal and institutional frameworks for SEAs 101

 Key points on public participation in SEAs

• As in the case of EIAs, public participation is a fundamental element of the

SEA process; similarly to the EIA process, national legislation does only provide
mechanisms for public participation at the screening or follow-up stage in limited
cases;
• At the same time, differences in the required administrative procedures for public
participation among the EIA and SEA process, in particular regarding scale, scope
and range, are being widely acknowledged;
• SEAs have the potential to expand the scope of democratic control over
public policies. This is for example being achieved through dissemination and
monitoring provisions that are enhancing transparency;
• The most widely used mechanism is the opportunity to submit comments
following publication of relevant documents, despite the widely acknowledged
limitations of this approach.

of manufacture of the SEA by a competent information on implementation is not yet

authority”192. available.

At the review stage, public participation is In Tanzania, national legislation includes

required in Tanzania, Panama, China and a requirement for public participation
the European Union for all its Member at the review stage, and only in case of a
States. disagreement between the Environmental
Agency and the plan, programme, policy,
In Panama, and in addition to strategy or bill initiating institution.
requirements at the scoping stage (see Further, it is at the discretion of the
section 4.2.2 Scoping and impact analysis) Minister of Environment to consult
the SEA report is subject to public the public, i.e. to subject the respective
consultation at the review stage. The document to public review or to conduct a
responsible entity must present basic public hearing.194
information on its institutional website,
in a national newspaper and by note to European Union SEA legislation makes
the institutions and key stakeholders. Any it mandatory that the draft plan or
natural or legal person can send comments programme and the draft SEA report is
or observations, which will be included made available to competent authorities
in the final version of the SEA report and the public. Both shall be given an
that will be presented to the Ministry of early and effective opportunity within
Environment, including the way in which appropriate time frames to express their
they were considered.193 Due to the very opinion before the finalization of the plan
recent adoption of the Decree in 2017, or programme. With regard to the public
to be consulted the legislation further

192 Article 35 and 36. 194 The Environmental Management Act of Tanzania,
193 2017 Decree. 2004, Article 104 (IX).

102
specifies that the public affected or likely to SEAs on the government website of the
be affected or having an interest, including National Environmental Management
non-governmental organisations, such as Authority and that in order to build
those promoting environmental protection upon transparent governance and public
and other organisations concerned, is to be engagement as stated in the Guidelines,
identified by the Member States.195 more effort at availing SEA reports is
needed [116].
And whereas most countries include a
requirement to make the SEA report At the follow-up stage, only a very limited
public following public consultation, this number of countries’ SEA legislation
is not the case in all countries. include legal requirements for public
participation.
In China, the compiling organisation is
required to solicit the opinions on the draft In China the law entitles citizens, legal
Plan Environmental Impact Assessment persons and other organizations to report
(PEIA) statement from relevant units, and complain in relation to environmental
experts and the public, seriously consider pollution and ecological damage activities
these opinions and enclose an explanation and thus to support monitoring of EIA and
on whether to adopt the opinions in SEA outcomes.
the statement. In addition, the 2014
Environmental Protection Law also In Canada, and in response to an
requires soliciting opinions from experts independent review of the Cabinet
and relevant stakeholders when developing Directive on SEA referred to above, the
economic and technical policies196. Government revised the guidelines to
However as opposed to the EIA process, strengthen accountabilities and emphasize
there is no legal requirement to make the transparency by including new public
full text of the PEIA report public. An reporting requirements for SEAs. This
evaluation of public participation in SEA includes new reporting to Parliament
in China came to the conclusion that it is on the results of SEAs and their impacts
‘insufficient, ineffective and pro forma’, on the goals and targets of the Federal
‘information is not completely disclosed’ Sustainable Development Strategy through
and there are problems due to ‘insufficient the Departmental Performance Reports.197
environmental consciousness and low
educational background of the public’. 4.2.4 Review and (final) decision-
Thus, the disclosed information is often making
regarded as insufficient to meet the needs Similar to the EIA process, review of the
of the public, since the general public does SEA report in many cases, takes place
not understand it [114]. through public participation (see section
4.2.3 Public participation) and by a
Similar to China, Kenya has been criticised public authority. The public authority is
for providing too little information on generally an environmental agency, and, in

195 Directive 2001/42/EC of the European Parliament

and of the Council of 27 June 2001 on the 197 https://www.canada.ca/en/environmental-
assessment of the effects of certain plans and assessment-agency/programs/strategic-
programmes on the environment, Article 6. environmental-assessment/third-party-evaluation-
196 Article 14. implementation-cabinet-directive.html.

SEA systems – Legal and institutional frameworks for SEAs 103

 particular with regard to national policies, to be subjected to public review or to
in a limited number of cases also an inter- a public hearing before making a final
ministerial committee. determination.199

For example, in addition to the already Similarly, but not quite as strict, SEA
outlined consultation of the public, review legislation in China provides that in
and approval of the SEA in Panama is the case of PEIA for special plans, the
the responsibility of the Ministry of conclusion and the opinion of examination
the Environment, which must issue the teams, called together by the competent
resolution that approves or rejects the environmental authorities, must be used
SEA. At the provincial or local level, the as an important basis for decision-
task can be delegated to the respective making by the authority approving the
Regional Directorate within the Ministry plan. Further, SEAs for plans (PEIAs) are
of Environment. considered an integral part of the plan, and

Table 12: Overview of section content related to SEA review and decision-making

  Review and decision-making

Specific issue Review process Recommendations SEA statement

Case study countries and Panama; Tanzania; China; Tanzania; China; Tanzania; Denmark
illustrative examples* Indonesia; Kenya Indonesia

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

Whereas the SEA legislation in Panama those plans without environmental impact
does not determine that potential sections and chapters or explanations will
recommendations provided in the not be approved by the plan’s examining
Resolution are binding on the plan, and approving department. A critical issue
programme or policy issuing institution, in the implementation of the provisions
thus that the relevant document however is that there is a controversy
needs to be changed accordingly, it is between the competent authority of
a legal requirement to comply with environmental protection and other
recommendations made by the Minister departments (e.g. plan compiling and
of Environment in Tanzania. Thus, approval departments) about the power
the plan, programme or policy issuing to convene the review team for the SEA
institution has to submit a new report report [114]. This issue is related to the
and or a revised document.198 In case no challenges associated with cross-sectoral
agreement can be found on the content of cooperation as outlined earlier.
a revised SEA decision and its implication
for the reviewed document, the Minister In addition to procedural requirements
of Environment may order the documents for review of SEAs, the recently adopted

198 Article 104 (VI), Article 105 (VI). 199 Article 104 (IX).

104
Indonesian SEA legislation also provides leading to decision without validation
substantive guidance for the approval of by the environmental authorities and
plans, programmes and policies. thus undermines the effectiveness of the
process.
SEA legislation in Indonesia includes a
requirement for validation of the SEA The option for SEA review by an inter-
(KLHS) by the Minister of Environment ministerial committee, prior to the
and Forestry, for national and provincial approval of a policy by cabinet, is provided
policies, plans and/or programs, and by the in the SEA Guidelines of Kenya (in
Governor, for district-level policy, plans and addition to guidance for stakeholder
programs, following a written validation participation). Whereas the country’s EIA
request by the drafter. Furthermore it is regulations do not set out how the review
stipulated that if no validation decision of SEAs should take place, the Guidelines
is issued within a time limit of twenty suggest that SEAs are reviewed by the
working days, the compiler is deemed to National Environmental Management
have obtained the validation. 200 Authority. For plans and programmes,
the Authority may constitute a Technical
Regarding the implications of the findings Advisory Committee to provide
for the approval of the SEA as well as independent technical comment, and
EIAs, the law further stipulates that “in the in the case of policies the Authority
case of the results of KLHS certifying that the may constitute an Inter-ministerial
support and carrying capabilities have been Committee on Environment. The final
excessive, decision on the policy will be determined
by the National Environment Council,
a. The development policies, aided by a concise briefing note from the
plans, and/or programs shall be Minister/Cabinet Secretary, informing the
improved in accordance with decision-makers of the key environmental
recommendation of KLHS; and issues linked to the policy with emphasis
b. All businesses and/or activities on the recommended alternatives and
already surpassing the support their ranking. The National Environment
and carrying capabilities of the Council is responsible for policy
environment shall not be permitted formulation, setting national goals and
anymore.”201 objectives and determining priorities for
the protection of the environment. Once
While the intention of the fictional the National Environment Council reaches
validation after twenty working days is a decision, the Minister of Environment
likely to speed-up the process, it should be informs the Minister responsible for the
noted that twenty working days is regularly proposed policy on the decision outcome.
not sufficient for a comprehensive The responsible minister then tables the
review. More generally, and in particular policy proposal (cabinet paper) to the
in the absence of sufficient capacities, cabinet for approval.
such an approach is likely not to lead to
more timely review decisions, but risks As highlighted in the next section (4.2.5
Monitoring and follow up), documentation
200 Article 25-27.
of SEA results is a crucial step for enhancing
201 Article 17.

SEA systems – Legal and institutional frameworks for SEAs 105

 Key points on public participation in SEAs

• Similar to the EIA process, review of the SEA report in many cases takes
place through public participation and by a public authority, regularly an
environmental agency;
• In addition to procedural requirements for review of SEAs, the recently
adopted Indonesian SEA legislation also provides substantive guidance for
the approval of plans, programmes and policies; in addition it is for example a
legal requirement to comply with recommendations made by the Minister of
Environment in Tanzania;
• Many countries include the requirement in their legislation to either submit a
separate SEA report and/or to integrate the SEA outcome and conclusions in the
proposed strategic document.

accountability, including with regard to 2. How the environmental report and

mitigation measures. Many countries the opinions received in the public
include the requirement in their legislation consultation stage, are considered,
to either submit a separate SEA report or 3. Why the approved or adopted plan
via direct integration of the SEA outcome or program is selected based on the
and conclusions in the proposed strategic reasonable alternatives dealt with, and
document [113]. 4. How the authority will monitor the
significant environmental effects of
As already outlined, this is for example the the plan or program.
case in Tanzania, where the law includes the
requirement to include a SEA Statement As in the case of EIA, the capacity to
on the likely effects that the regulation, implement suggested mitigation measures
public policy, programme or development by government authorities should be a key
plan may have on the environment when consideration in the final decision-making,
promulgating the respective instrument.202 since in practice this often seems to be an
obstacle for implementation.
Detailed requirements for the content of a
supplementary statement to the final plan 4.2.5 Follow-up and adaptive
or program prepared by the Authority are management
provided in Denmark’s SEA law, which As in the case of EIAs, there is a wide
provides that the authority shall prepare a understanding that the post-decision
statement of: phase on an ex-ante assessment of a
plan, programme or policy, and thus the
1. How environmental considerations are implementation of the respective strategic
integrated into the plan or program, document, should be considered part of
an effective SEA process. It is here where
the actual impacts occur, in particular
also when project-level implementation
202 Article 104 (2) occurs under the established planning

106
Table 13: Overview of section content related to SEA follow-up and adaptive management
  Follow-up and adaptive management
Specific issue Compliance/ Environmental Transparency Evaluation
implementation of impact/ effectiveness criteria/
recommendations checklists

Case study Peru; Panama Indonesia; China; Canada Kenya

countries and Panama
illustrative
examples*

*Please note that this list is not exhaustive, but instead flags examples from the case study countries and illustrative
examples featured in the report

framework. However, follow-up of SEAs of the SEA follow-up coin. The other, and
face many of the same challenges observed arguably more important one, is to monitor
with regard to EIAs, such as for example, and respond to actual changes, which are
limited institutional capacity and generally by their nature also being influenced by
a lack of legal requirements for follow-up. other factors than the respective plan,
Instead, the focus of follow-up measures programme or policy, in order to verify
is, in many cases, on monitoring the whether the implementation of the
influence of an SEA on a planning process, strategic document needs to be adjusted
instead of plan performance and impact in order to achieve the desired objectives
[105,110,118,119]. [105].

In addition, a number of challenges have In the following, a number of legal

been identified specifically with regard to approaches for follow-up are presented.
SEA follow-up. These include the following
[110,118,119]: In Indonesia, provisions on SEA
monitoring and evaluation were
1 Generally there is a long time period introduced through the recent legal reform
for a strategic planning instrument to in 2016. As well as the establishment of
materialize; the respective competences the Regulation
2. It is difficult to attribute environmental provides that SEA monitoring and
changes to a specific strategic planning evaluation is carried out by the responsible
instrument; government authorities, a) at the time
3. There is a broad variety of plans, of SEA development, and, b) against SEA
programmes and policies at the implementation following validation. The
different planning levels, thus follow- focus is also on effectiveness of the SEA,
up has to be case sensitive in the including effectiveness of the involvement
absence of a single general model. of communities and stakeholders
and quality and effectiveness of SEA
At the same time it has been concluded, recommendations integrated in policies,
as in the case of EIAs, that verification of plans and programmes. Further details
whether the predictions of the ex-ante are provided on the process (reporting of
assessment materialized is only one side

SEA systems – Legal and institutional frameworks for SEAs 107

 monitoring results) and the objective of Regional Directorate of the respective
monitoring and evaluation.203 Ministry of Environment.205 No legal
requirements are stipulated regarding
In China, the law requires timely follow- monitoring or reporting obligations of the
up, monitoring and evaluation on the plan, programme or policy-implementing
environmental impact of special plans. institutions.
The planning departments are responsible
for conducting such monitoring and for As a general observation, commonly, no
reporting the results to the authorities that legal provisions are provided in national
approved the plans. As already outlined SEA legislation regarding the process to be
in the section on public participation, the followed in case of non-compliance with
law also entitles citizens, legal persons and the contents of the environmental report,
other organizations to report and complain or in case for example mitigation measures
in relation to environmental pollution and prove to be ineffective. The absence of
ecological damage activities and thus to respective provisions is due to the political
support monitoring of SEA (and EIA) nature of planning processes. Government
outcomes. response actions to perceived shortcomings
are political decisions and therefore linked
In Peru, the Environmental Assessment to the general accountability framework
and Control Agency is responsible in a country. In that context, the SEA
for monitoring and controlling the legislation of the European Union provides
implementation of the recommendations the option for member states to use already
included in the SEA report and is required to existing monitoring arrangements in
report the results to the Controller General order to comply with the SEA monitoring
of the Republic.204 There are no detailed requirements.206
provisions however as to the process to be
followed in case of non-compliance with In Canada, follow-up was one of the areas
the contents of the environmental report. targeted by the Government in response to
the above mentioned independent review
In Panama, the recently adopted SEA of the Cabinet Directive in 2010. The revised
legislation briefly refers to follow-up. In Guidelines strengthen accountabilities and
particular it is stated that the Ministry emphasize transparency by including new
of Environment may carry out audits public reporting requirements for SEAs.
or similar instruments to review the This includes new reporting to Parliament
compliance and effectiveness of the SEA on the results of SEAs and their impacts
results. The Ministry of Environment on the goals and targets of the Federal
is further empowered to issue the Sustainable Development Strategy through
methodology for follow-up as well as the Departmental Performance Reports.207
guidelines for the correct implementation
of SEAs. Monitoring of SEAs at the regional
or local level may also be delegated to the

205 Decree 4/2017, articles 8-9.

206 Article 10.
203 Government Regulation no. 46 concerning 207 https://www.canada.ca/en/environmental-
procedures for implementing SEA of Indonesia, assessment-agency/programs/strategic-
2016, Article 35-38. environmental-assessment/third-party-evaluation-
204 Supreme Decree No. 019-2009-MINAM, Article 65. implementation-cabinet-directive.html.

108
 Key points on follow-up and adaptive management

• Follow-up of SEAs faces many of the same challenges observed with regard to
EIAs, such as, for example, limited institutional capacity and generally a lack of
legal requirements for follow-up;
• In many cases, the focus of follow-up measures is on monitoring the influence of
an SEA on a planning process, instead of plan performance and impact;
• Specific challenges for SEA follow-up include the regularly long time period for
a strategic planning document to materialize as well as the difficulty to attribute
environmental changes to a single strategic planning instrument;
• As a general observation, commonly, no legal provisions are provided in national
SEA legislation regarding the process to be followed in case of non-compliance
with the contents of the environmental report, or in case for example mitigation
measures prove to be ineffective;
• Many countries do not ensure public access to SEA monitoring results and
evaluations in their national legislation; this lack of transparency is a severe
obstacle to holding government institutions accountable for their policies and
actions.

However, many countries do not ensure [116]. Further, detailed provisions

public access to SEA monitoring for follow-up are included in the SEA
results and evaluations in their national Guidelines. Firstly, it is stipulated that
legislation. This lack of transparency is an Environmental Management Plan
a severe obstacle to holding government should be included in the SEA report,
institutions accountable for their policies which regularly include a monitoring
and actions. programme. In addition the guidelines
outline that the institution shall monitor
Another key observation in relation the plan, programme or policy and submit
to legal approaches to SEA follow-up, the report to the Authority annually or
is that in many countries the central at intervals that will be prescribed by
environmental agency has the competence the Authority. It is also stipulated that
to set more detailed rules in the form of at some point a formal evaluation of the
SEA Guidelines. monitoring results should take place as
part of the revision or renewal of the
In Kenya for example, there are no legally plan, programme or policy. Notably, the
binding provisions regarding follow-up. SEA guidelines also provide detailed
Nevertheless, the plan, programme or information for conducting monitoring
policy-issuing institution is considered and reporting in its annexes. The “SEA
responsible for monitoring and evaluation Evaluation Criteria” also elaborate on
of the strategic document under the the importance of evaluation, arriving at
oversight and control of the National the conclusion that extending the focus
Environmental Management Authority to include the effects on institutional and

SEA systems – Legal and institutional frameworks for SEAs 109

 capacity-building issues is necessary in 3. While there is a trend towards
order to determine whether the SEA led strengthening of SEA systems, a
to sustainable plan, programme or policy number of shortcomings prevail. This
design and implementation. And the is widely perceived to be linked to the
provided checklist of key questions for fact that legal approaches are often
evaluation is also targeted at evaluating rooted in the logic of EIA systems,
the influence on direct and indirect goals thus not sufficiently taking into
of relevance to sustainable development account the particular characteristics
and accountability. Reference to internal of environmental assessments at the
standards, such as from the International strategic planning level [105].
Association for Impact Assessment (IAIA), 4. There is an increasing recognition
have been made as well. that SEAs need to be promoted as
the first and most important legal
Finally, and similar to suggestions made tool to promote environmental
regarding EIA follow-up, making use of mainstreaming in sectoral and cross-
a watchdog group or an independent sectoral policies. At the same time
agency to monitor implementation of SEA it is regarded as crucial to manage
mitigation measures regarding specific expectations with regard to the
issues, such as climate change, can be individual SEA process in order to
considered. demonstrate its potential as well as
limitations, depending for example,
4.3 Emerging trends on the tier of application at the plan
1. The trend towards broader application or programme level, and thus to be
of SEAs is continuing globally. There a “worthwhile part of planning and
is an increasing recognition by a development” [111].
range of stakeholders that some/many 5. There is a trend towards the adoption
of the shortcomings of EIAs – for of non-binding procedural SEA
example regarding the consideration guidelines in order to guide
of alternatives and cumulative effects implementation of often rather brief
– can only be addressed effectively at legislative requirements. In addition,
the strategic level and ideally prior to and in many cases, at the regional rather
any project-level developments. than the national level, guidelines are
2. In some countries, achievements of adopted to facilitate assessing impact
informal SEA systems are highlighted, related to environmental factors
however, in the majority of countries such as climate change, biodiversity,
where severe shortcoming of planning ecosystem services and health. In that
processes with regard to taking into regard, developments towards the
account environmental considerations establishment of separate assessment
are observed, the establishment of processes with regard to certain issues,
legal SEA requirements is regarded as e.g. climate change or health, should
crucial. This includes legal measures be noted as well.
related to sequencing or tiering of 6. Despite growing recognition of SEAs
different plans, programmes and as a tool to strengthen democratic
policies as well as of SEAs and EIAs, and control, surprisingly little guidance
the strengthening of accountability is provided in many countries’
systems.

110
SEA legislation regarding public as well as for example, follow-up,
participation, including access to might be established elsewhere, these
information (e.g. monitoring reports). links should at least be made visible
While this may partly be due to the in order to strengthen transparency
perception that SEA and planning and implementation. At the same time
processes are inherently linked to the SEAs can be a tool to strengthen such
general accountability framework key governance principles.
of a country, and thus measures or
rules related to public participation

SEA systems – Legal and institutional frameworks for SEAs 111

112
Chapter 5
Key findings and concluding remarks

It is without question that EIAs continue to However, in relation to both EIAs and
be one of the (if not the) most important SEAs, many of the observed challenges
environmental planning and management in implementation can seem daunting.
tools globally. Since EIAs first entered the Even in cases where the different steps
stage almost 50 years ago, and quickly of the process are followed properly
gained momentum at international and (procedural compliance), questions about
regional levels, national governments the tools’ effectiveness, i.e. whether better
across the world integrated EIAs into their environmental outcomes are achieved
legal frameworks and gained experience in with them than without them, prevail.
implementation. Consequently, there is a This is also linked to the issue of lack of
huge wealth of literature on achievements available, accessible and suitable data.
and success stories as well as remaining Further, elements widely considered to
shortcomings and challenges. Legal reform be at the heart of EIAs are questioned,
processes regularly target EIA systems in since there is a perception amongst some
order to further strengthen and improve stakeholders that the benefits of the often
them. time-consuming and complex processes
do not outweigh the costs. Instead, crucial
While there is also a wide recognition of economic growth for the benefit of society
the importance of SEAs, uptake and in is perceived to be unnecessary delayed.
particular implementation has been slower This has even triggered legislative changes
in many countries. This is due to the fact to backtrack/weaken the processes in some
that SEAs are mostly being developed in countries. This is a worrying development
response to perceived limitations of EIAs, – and at the same time nothing new.
thus SEAs influence government planning
processes (and thus highly political EIAs and SEAs were developed in
processes) instead of concrete physical order to shift the paradigm that in
developments. Nevertheless, there are particular economic, but also social
recent promising developments in different considerations, are more important than,
parts of the world, including on tiering of or can be separated from, environmental
SEAs and EIAs, and it can be hoped that considerations, and thus were regularly
soon SEAs will be as widely applied as not sufficiently dealt with in decision-
EIAs – whether as a separate process or making. Considerable achievements have
integrated in national planning processes. been made in the last decades in shifting
this paradigm, as illustrated by a range

Key findings and concluding remarks 113

 of international and regional agreements day. In fact, the issue is at the very heart of
and policies related to environmental EIAs and SEAs themselves. The objective
matters and more broadly, sustainable of the tools is not the implementation of
development. Most recently this includes a specific environmental standard, but
for example the adoption of the 2030 instead it is to ensure or work towards a
Agenda for Sustainable Development and level-playing field between all stakeholders
its 17 Sustainable Development Goals, the through public participation and access to
ongoing negotiations for a new instrument information, including in the crucial post-
on the conservation and sustainable use decision or follow-up phase.
of marine biodiversity of areas beyond
national jurisdictions (EIA is one of the key As presented in this stocktaking report of
topics addressed), as well as the campaign EIA and SEA legislation globally, there is
for a global pact to protect the human right a wealth of implementation experience,
to a clean, healthy environment. and promising legal approaches have been
developed in order to rectify shortcomings
At the same time, and as can also be seen and further strengthen EIA and SEA
at the international and regional policy systems across the globe, while taking into
level, the “right” balance between the three account specific regional and national
pillars of sustainable development will circumstances. It is hoped that this report
never be a given, but a continued subject will further foster and encourage this
of public discourse and the politics of the crucial exchange for the betterment of the
global environment.

114
 VICTORIA NILE RIVER HYDROPOWER AT SUNSET. JINJA, UGANDA, EASTERN AFRICA BY ALEXANDER KUGUCHIN
.

List of references
115
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 GOLD MINES BY VITALII NESTERCHUK

Annex: Useful resources

123
 Annex: Useful resources

There is a wide range of resources available http://www.unece.org/env/eia/welcome.

to foster understanding of and build html - UNECE: Environmental
capacity related to the further development Assessment
and implementation of EIAs and SEAs.
These include academic articles and books The United Nations Economic Commission
as well as grey literature, such as reports for Europe (UNECE) was set up in 1947
by organisations involved in capacity by the he Economic and Social Council
building activities globally, for example by (ECOSOC). It is one of five regional
the International Association for Impact commissions of the United Nations.
Assessment (IAIA), or for a specific region, UNECE also sets out norms, standards
for example by the Institute for Global and conventions to facilitate international
Environmental Strategies (IGES) with cooperation within and outside the region.
respect to Asia.
http://www.iaia.org/ - The International
These include academic article and books Association for Impact Assessment
as well as grey literature, such as reports
by organisations involved in capacity IAIA is the International Association for
building activities globally, for example by Impact Assessment, the leading global
the International Association for Impact network on best practice in the use of
Assessment (IAIA), or for a specific impact assessment for informed decision
region, for example by the Institute for making regarding policies, programs, plans
Global Environmental Strategies (IGES) and projects
which operates the Asian Environmental
Compliance and Enforcement Network http://www.eia.nl/en - Netherlands
(AECEN)1 Commission for Environmental
Assessment
A number of key resources are listed below.
The Netherlands Commission for
Websites with EIA and SEA relevant Environmental Assessment (NCEA) is an
resources, including national legislation independent expert body that provides
advisory services and capacity development
on environmental assessment. The website
includes a repository of EIA & SEA
1 Information on Environmental Impact Assessment
in Asia by AECEN is available from http://www. country profiles that give information on
aecen.org/eia-compendium.

124
the environmental assessment legislation on the first 11 training topics of UNEP’s
of a specific country. EIA Training Resources Manual and was
edited and modified by subject matter
https://www.ecolex.org/ - ECOLEX experts from RMIT University in Australia.

ECOLEX is an information service on Secretariat of the Pacific Regional

environmental law, operated jointly by Environmental Programme (SPREP),
FAO, IUCN and UN Environment. Its “Strengthening environmental impact
purpose is to build capacity worldwide assessment: guidelines for Pacific Island
by providing the most comprehensive countries and territories” (2016)
possible global source of information on
environmental law. The publication is targeted at government
officers who are responsible for
https://eialaws.elaw.org/ - Database on administering or managing EIA, or who
EIA Law globally engage with the EIA process in other
regulatory or development proponent
The Environmental Law Alliance capacities (e.g. officers working in areas
Worldwide (ELAW) helps communities such as planning, health, energy, water,
speak out for clean air, clean water, and a transport, fisheries, agriculture, natural
healthy planet. ELAW is a global alliance resources). The EIA Guidelines are
of attorneys, scientists and other advocates applicable to the full range of projects
collaborating across borders to promote and economic development sectors
grassroots efforts to build a sustainable, in the Pacific and aim to support the
just future. implementation of current EIA legal
requirements and to strengthen Pacific-
Guidance and training material based application of the EIA process.
http://eia.unu.edu/about.html - EIA
Open Educational Resource UN Environment: Guidelines for
conducting Integrated Environmental
This open educational resource on Assessments (2017)
Environmental Impact Assessment (EIA) is
based on the United Nations Environment This document is the result of UN
Programme (UNEP) EIA Training Environment Member State requests in
Resources Manual, Second Edition, both Governing Council and the UN
edited by Barry Sadler and Mary McCabe. Environment Assembly and is meant
The EIA-wiki also includes the UNEP to provide guidance for a wide range of
compendium of “Studies of EIA Practice in different types of Integrated Environmental
Developing Countries”. These publications Assessments. These can range from global
were initially developed by UNEP in to regional to rapid response assessments
response to the demand for training and and emerging issues assessments. The
capacity building in environmental impact Guidelines should be considered a ‘living
assessment, in particular from developing document’ since they will be used and
countries and to provide a list of case improved throughout the sixth Global
studies on how EIA is implemented. The Environment Outlook process as well as
content of the EIA course module is based other on‐going assessment processes.

Annex: Useful resources 125