The European SEA Directive

Simon Marsden

School of International Business,

University of South Australia

Module 1: Basics of SEA

Context

Reference to International Law – CBD and Espoo Convention / SEA Protocol

Article 174 of the Treaty – EC Environmental Policy

Article 6 of the Treaty – Integration of Environmental Protection Requirements

Fifth Environment Action Programme – affirmation of SEA

Close relationship with EIA Directive

Main Characteristics Objectives Definitions Application General obligations Environmental report Consultations Decision making Monitoring Relationship with other EC Law Information, Reporting, Review Implementation

Objectives (Article 1)

Provide for a high level of protection of the environment and

Contribute to the integration of environmental considerations in plans and programmes (PPs)• with a view to promoting sustainable

development Environment broadly defined (Annex I)

Definitions (Article 2)

PPs means new PPs (including those co-financed by the EC) and modifications to existing PPs

Environmental assessment (EA) means:• Preparing an environmental report• Carrying out consultations• Taking into account the

report/consultations• Providing information on the decision

Application ‘Stage 1’ (Article 2)

PP must be prepared and or adopted by an authority at national, regional or local level, or prepared for adoption through legislative procedure and

PP must be required by legislative, regulatory or administrative provisions• What is a requirement?• What is an administrative provision?

Must reasons be given if Member State (MS) determines no stage 1 application?

Application ‘Stage 2’ Mandatory SEA (Article 3)

EA of sig. env. effects required for:• PPs for agriculture, forestry, fisheries,

energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects under EIA Directive or

• Plans which require an appropriate assessment under the Habitats Directive

Effects assumed sig. - Recital 10

Application ‘Stage 2’ Discretionary SEA (Article 3)

PPs which determine use of small areas at local level & minor modifications only require assessment if MSs determine are likely to have sig. env. effects

MSs shall determine whether PPs not falling within sectors but which set the framework for future development consent of projects under EIA Directive are likely to have significant environmental effects

Determinations of significance to be made according to Annex II and designated authorities must be consulted

Exemptions (Article 3)

EA not required for:• PPs the sole purpose of which is

to serve national defence of civil emergency

• Financial or budget PPs (financial and budget plans with other provisions?)

General Obligations (Article 4)

EA to be carried out by MS during the preparation of the PP and before its adoption/submission to the legislative procedure

Requirements can be integrated into existing procedures or new procedures established

Where PPs form part of a hierarchy, duplication of assessment to be avoided

Environmental Report (Article 5 and Annex I)

Report to identify:• Likely sig. effects on the environment

of implementation of PP and• Reasonable alternatives to it

Information to be provided is set out in Annex I

Authorities designated by MSs must be consulted when deciding on scope and level of detail of information to be included

Consultation (Article 6 / Recital 15)

Consultees:• Authorities designated for their specific

environmental responsibilities• Public affected, likely to be affected or

having an interest in the Directive Both must be given an early and effective

opportunity within appropriate time frames to express their opinion on the draft PP and report before adoption/submission

MSs can decide on detailed arrangements for information/consultation

Transboundary Consultation (Article 7)

Where MS believes a PP is likely to have significant effects on the environment of another MS, or where MS likely to be affected requests, a copy of the draft PP and environmental report must be provided

MS likely to be affected must afterwards indicate whether it wishes to be consulted, and if so consultation must take place to attempt to avoid or mitigate impacts

Reasonable time must be allowed for consultation, to be agreed

Decision Making (Articles 8-9)

Environmental report and opinions must be taken into account in preparing the PP

When the PP is adopted, the public and designated authorities must be informed of:• PP as adopted and• How the environmental considerations

have been integrated in the PP and how the opinions have been taken into account in the light of alternatives

• Monitoring measures decided upon(MSs can decide on how information given)

Monitoring (Article 10)

MSs must monitor the significant environmental effects of implementing PPs• To identify unforseen effects and• To undertake remedial action

Existing monitoring arrangements can be used if appropriate

Relationship with other EC Law (Article 11 / Recital 19)

Other EC requirements such as the EIA Directive, Habitats Directive and Water Framework Directive still need to be applied where relevant

Where PPs have to be assessed under other EC legislation, coordinated procedures can be used provided the requirements of all the EC legislation is complied with

Information, Reporting, Review (Article 12)

MSs must exchange information on the experience gained in implementing SEA Directive

Any measures MSs take for quality assurance of environmental reports must be communicated to the Commission

Before 21 July 2006 the Commission must report on the effectiveness of the Directive to the Parliament and Council, with any recommendations for reform, such as expanding application

Implementation (Articles 13-15)

MSs must bring in implementing legislation before 21 July 2004 - thereafter the Directive must be applied to PPs begun after then

PPs begun before 21 July 2004 but adopted/submitted to the legislative procedure more than 2 years after must also be assessed unless MSs decide not possible

Before 21 July 2004 MSs must inform the Commission which PPs are likely to be assessed under the Directive

Conclusions

Important element of integration approach under Art 6 of Treaty

Many best practice procedures included: • Contribution to decision making• Public participation• Consideration of alternatives• Monitoring

Conclusions (cont’d)

Primary weakness that much discretion left to MS regarding application

Not many PPs will be subject to mandatory SEA

Unlikely to result in ‘gold-plating’ No application to policies Commission guidance needed asap to

assist transposition and provide practical assistance