The environmental impact assessment of public and private projects, and plans and programs that may have significant effects on the environment is the procedure designed to integrate environmental considerations into the decision-making on their approval and socio-economical development. The objective is to reduce environmental impact and promote a high level of environmental protection, testing their compliance with a sustainable development.
The procedure ends with a statement that provides the competent authorities with information about the environmental consequences of the projected activities, it requires decisions to be influenced by this information, and establishes mechanisms that enable the participation of potentially affected people.
It is a requirement supported by the international and European law. In the international law sphere, it has to be considered, on the one hand, the forecasts of the international conventions that provide such assessment, as is the case with the Convention on Environmental Impact Assessment in a Transboundary Context of 25 February 1991 (approved by the Decree-Law no. 59/99, of 17/12, published in the DR (Diário da República), no. 292, Series I-A, of 17 December 1999), of article 14 (“Avaliação de impacte e minimização dos impactes adversos” [Evaluation of the impact and minimization of adverse impacts]) from the United Nations Convention regarding Biological Diversity, from 20 May 1992 (approved by the decree no. 21/93, of 21/06, published in DR, I Series-A, no. 143, of 21 June 1993) and of article 206 (“Avaliação dos efeitos potenciais de atividades” [Evaluation of the activities’ potential effect]) from the United Nations Convention about the Law of the Sea (approved by Parliamentary Resolution no. 60-B/97, of 14/10, published in DR, I-Série A, no. 238, of 14 October 1997). On the other hand, it has to be taken into consideration the recognition of the International Court of Justice and the International Tribunal of the Law of the Sea of the “obligation of assessing the environmental impact […] as a general obligation of the international customary law” (respectively, INTERNATIONAL COURT OF JUSTICE, “Pulp Mills…”, judgment of 20 April 2010, § 204 and INTERNATIONAL TRIBUNAL OF THE LAW OF THE SEA, “Responsibilities and Obligations…”, advisory opinion of 1 February 2011 § 145); and also its statement as principle in the “Declaration of the United Nations Conference on the Environment and Development” held in Rio de Janeiro from 3 to 14 June 1992.
In light of the jurisprudence of the European Court of Human Rights regarding the right to respect for private and family life and home (article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, of 4 November 1950, approved by law no. 65/78, of 13/10, published in DR, Series I, no. 236, of 13 October 1978), whenever the public decision procedures involve “complex environmental questions and economic policy” should imply “adequate investigations and studies” so that the deleterious effects on the environment and the impact on people’s rights are foreseen and assessed in advance so a “just equilibrium between the various conflicting interests at stake could be defined” (v.g. judgment of the European Court of Human Rights, of 2 November 2006, Giacomelly against Italy, process no. 59909/00, no. 83).
The assessment of the environmental impact in the European Union (EU) law is, on the one hand, foreseen in various legislative acts (for example, cf. articles 8 and 101, paragraph f), and no. 4.8/4, 5.2/1-b), 6/6.3 of Appendix I, no. 7 of Part I and no. 6 of Part II of Appendix XI of Regulation no. 1303/2013 of European Parliament and of EU Council, of 17 December 2013, general Structural Funds and Investment Regulation; and articles 4, no. 3, and 13, no. 4, of policy 2012/18/EU of European Parliament and Council, of 4 July 2012, regarding the control of hazards associated with major accidents involving dangerous substances).
On the other hand, in the UE law, the environmental impact assessment is object of a specific discipline: i) regarding the effects of certain projects, public or private, in the environment (policy 2011/92/UE of European Parliament and Council, of 13 December 2011, JO L 26 of 29 January 2012, p. 1, amended to policy 2014/52/UE of European Parliament and Council of 16 April 2014, JO L 124 of 25 April 2014, p. 1), which harmonizes the fundamental requirements of the environmental impact assessment of such projects in the Member States; ii) and regarding the effects of certain plans and programs in the environment (policy 2001/42/CE of European Parliament and Council, of 27 June 2001, JO L 197 of 21 July 2001, p. 30), with greater spatial, temporal and contextual coverage, that introduces, in a initial stage of development options, environmental considerations such as climate change and biodiversity.
The legal system of environmental impact assessment in the Member States is structured by these directives whose interpretation has been dissected by the jurisprudence of the Court of Justice of the European Union. Such is the Portuguese case, respectively, with the DL no. 151-B/2013, of 30/10, changed for the DL no. 47/2014, of 24/03, and with the DL no. 232/2007, of 15/06, changed for the DL no. 58/2011, of 04/05, whose central background is also in the article 18 of the basic law of the environment (law no. 19/2014, of 24/03). These laws apply to the Regions of Azores and Madeira, without prejudice to the adaptations resulting of the Autonomous Regional Administration. The local, regional, and national authorities are bound to consider the referred set of rules within the limits of such European legislation and jurisprudence.
Under the regime resulting from these provisions, the projects subjected to environmental impact assessment are: i) projects of certain categories for which is true that they have a significant impact in the environment, normatively identified as such; ii) and the projects that, not having necessarily such impact in all cases, might have it, considering (as selection criteria) the project’s characteristics (for example their size and risks to human health), their location (this is, the “environmental sensitivity of the geographic areas susceptible of being affected by the projects”), and the associated type and characteristics of the environmental impact (for example in terms of the covered area, duration, and the reversibility of its effects). The determination of the projects of this second category is: i) supported by the establishment of threshold values or criteria, which are intended to facilitate the assessment of whether a project is subject to the requirement of environmental impact assessment and not subtract it beforehand from such obligation; ii) and/or in a case to case basis, by measuring the susceptibility of having significant effects on the environment based on the referred selection criteria. Subject to environmental impact assessment are also the changes or extensions that reconfigure the projects in reference to the referred parameters and/or in terms of significantly negative impacts on the environment.
The decision relative to the need (or not) of environmental impact assessment “might contain or be accompanied by all the information that makes it possible to check that the decision is based on adequate screening” in light of the pertinent criteria (policy of the Court of Justice of the European Communities, currently Court of Justice of the European Union, of 10 June 2004, C-87/02, no. 49; Court referred to the judgments mentioned in the text), using if available, information from assessments required by other legislation, and should, together with the main reasons that inform it, be made available to the public, so that the interested individuals and public authorities might “ensure compliance of this obligation of verification that falls on the competent authority and, if necessary, by judicial action (policy of 30 April 2009, C75/08, no. 58).
In case of sensitive areas (with ample expressivity in the archipelago of Madeira, cf., namely, Natural Park of Madeira Service and the Institute of Nature and Forest Conservation), the decision on the need to subject to an environmental impact assessment of projects and project’s changes or extensions located in them depends not on the licensor, but on the authority of environmental impact assessment, whose silence, after the legal deadline for decision, means that such assessment is mandatory.
The legal regime of environmental impact assessment must be applied in order to fulfill its essential purpose: that the projects likely to have significant effects on the environment are subjected, before approval, to a complete assessment of those effects. The objective cannot, as sufficiently clarified by the European jurisprudence, be defrauded by fractioning a project, by the disregard of a part of the project that will be conducted in another Member-State, and fail to include an analyses of the cumulative environmental effects that might produce when taken together with other projects.
The term “project” refers to the execution of works, namely construction and demolition, and installations; and generally refers to interventions that alter the physical reality, in the natural environment or landscape (including interventions destined to natural resource exploitation). Thus, for example, “the simple renewal of an existing license for exploitation of a landfill”, without place for “works or interventions which alter the physical reality of the place” is not qualified as a project; but it is if this landfill is changed or extended (works or interventions which alter the physical reality; policy of 19 April 2012, C-121/11, no. 31-33).
Often, environmental choices in the context of project evaluation are conditioned by the plans or programs in which they fall, so without the proper environmental considerations in this context that assessment is impaired (reason why they should be assessed simultaneously). Furthermore, the usefulness and effectiveness of environmental protection also requires more comprehensive levels of consideration of the biophysical, economical, social and political effects that are concerned, which can only be ensured in the context of adoption (including through legislative procedure), by national, regional and local authorities and other entities that exert public authority, of the plans and programs required by law or regulation.
Therefore, in accordance with the respective legal regime, are subject to environmental impact assessment programs and plans: i) which have been prepared for sectors that the law provides and which establish a framework for the future approval of projects encompassed by the respective legal regime of environmental impact assessment; ii) which are likely to have negative effects on areas protected under the terms for the conservation of natural habitats and of wild fauna and forest (policy 92/43/CEE of the Council of 21 May 1992); iii) that establish a framework for the approval of other projects, other than those enumerated in that regime, subject, according to a previous assessment for such effect, of producing significant environmental effects; iv) that report to “small areas at local level and small changes” to the referred plans and programs, when they are likely to have significant effects on the environment (Directive 2001/42, referring to the assessment of the effects of certain plans and programs on the environment, and the DL no. 232/2007, of 15/06, which transposes into Portuguese law).
The purpose of “Policy 2001/42, which aims to ensure a high level of environmental protection” requires a broad interpretation of its provisions. In these terms, it is not excluded from the environmental impact assessment the revocation, partial or total, of a plan or program likely to have negative effects on the environment, in a way that includes the modification of the “assessed environmental effects” and contributes “to a change in the proposed planning in the affected territories (judgment of 22 March 2012, C-567/10, no. 33 and 34).
The environmental impact assessment regime admits exceptions on some projects or that the assessment be conducted in other terms. This is the case, on the one hand, of projects relating to national defense and of those that had as only objective to respond to cases of civil emergencies, and, on the other hand, projects object of specific national legislative act. In the case of plans and programs, may be excluded from the environmental impact assessment procedure those destined only to national defense or civil protection and financial or budgetary plans and programs.
The environmental impact assessment shall identify, describe, and assess in an adequate manner, in light of each particular case, the direct and indirect environmental effects, “secondary, cumulative, short, middle and long-term, permanent and temporary, positive and negative” (footnote 1 to Appendix IV to directive 2011/92/EU) of a project on: i) the “population and human health”; ii) “biodiversity, with particular emphasis on species and habitats protected by Directive 92/43/EEC and Directive 2009/147/CE of the European Parliament and the Council”; iii) the “land, soil, water, air, and climate change”; iv) the “material assets, cultural heritage and landscape”; v) and the interrelation among them. In the assessment of the effects, it should be included, if the project justifies it, its vulnerability regarding the risks of major accidents and/or disasters. The need for a complete research and analysis can be illustrated by the judgment of 16 March 2006, Commission against Spain, C-332/04, in which the Court of Justice of the European Communities criticized the fact that the Spanish law did not guaranteed then, the environmental impact assessment of all the factors referred in the text and consequently, also their interaction (no. 36 and 37).
When is concerned a site in the list of national sites, a site of communitarian interest, a special area of conservation, or a zone of special protection, the “environmental impact” of the “actions, plans, or projects not directly related to the (respective) management” and not necessary for it, should, when likely to have significant impact on it, be assessed in light of the conservation objectives (DL no. 140/99, of 24/04, amended and republished by DL no. 49/2005, of 24/02, maxime, articles 7, no. 2, point c), and 10).
The approval of projects, plans, and programs that might have a significant impact on the environment should be granted only after the respective environmental assessment. “Qualifying a decision as ‘approved’” under national law must be done in accordance with the EU law, which reserves to itself the notion (case of 04 May 2006, C-290/03, no. 41). The approval is the permissive act of the project, plan or program, without which cannot be performed or executed. The effectiveness of that assessment leads back to the concept of approval, namely a decision of establishing new conditions and “approval of aspects covered by the new conditions”, as might happen, for example, under the “resumption of mining” (judgment of 7 March 2004, C-201/02, no. 47).
The “simple verification of the existence of an ‘approval’” might not provide a “complete answer regarding the obligation” of the effect assessment of an environmental project, being also “necessary to analyze the question of when such assessment must be made” (judgment of 7 January 2004, C-201/02, no. 49). The assessment should, in principle, take place a soon as it may be possible to identify and assess all the effects the project might have on the environment. Thus: i) an “approval procedure in several stages, one involving the main decision and the other involving an implementing decision which might not go beyond the parameters established by the main decision, the impact that the project might have on the environment should be identified and assessed during the procedure relating to the main decision” (judgment of 4 May 2006, C-290/03, no. 47); ii) if the impact “might only be identified during the procedure for implementing decision”, then the assessment should take place during this procedure (Ibid.); iii) when the procedure of environmental impact assessment refer to a previous study or draft, there shall be place for verifying its environmental compliance to the execution project (v.g., articles 2, point f), 11, 20, and 21 of DL no. 151-B/2013).
The environmental impact assessment takes place through an assessment procedure of the probable environmental impacts and, where appropriate, in a way to “accommodate”, reduce, and compensate – the realization of the project or in defining the plan or program, in which approval procedure it integrates or articulates.
The procedure takes place by the initiative of the author requesting the approval of a private project or by the public authority that pretends to conduct a public project, and with regard to a plan or program, on the initiative of the organization in use of public authority responsible for its execution, the request must be accompanied by enough information that, in synthesis, provides knowledge of the project, plan or program, its impact on the environment and the solutions to avoid, minimize and where appropriate, compensate for negative environmental effects. Prior to the beginning of the environmental impact assessment procedure, the proposer may request information relative to the scope of the environmental impact assessment or environmental report (respectively, in the case of projects and plans or programs).
The initiative only leads to the opening of the procedure after verifying the completeness of those elements. The instruction includes, at first, the technical assessment of the information provided by the applicant and, second, the technical assessment of the request of approval of the project, plan or program, from the point of view of its environmental sustainability – that is, identifying the effects for which the evaluation is relevant and the analysis of alternative solutions that avoid, mitigate or compensate the negative effects; it follows the public consultation, by providing the interested public with all the necessary information and the invitation to submit their comments and opinions.
The set of the instructive elements is weighted in a final technical report, by a technical commission, and then submitted to the deciding entity. This entity submits the draft decision to a public hearing, without impairment of settling before with the proponent, the modification of the project or the adoption of additional environmental measures to minimize or compensate, when necessary.
The decision of the procedure – concerning the environmental possibility or opportunity and regarding the better environmental conditions for its implementation – may correspond to an unfavorable, favorable, or favorable conditioned declaration of environmental impact. The approval (licensing or authorization) of a project is possible only if that decision comprises an environmental impact statement favorable or favorable conditioned. The lack of a decision in a specific period by the authority of the environmental impact assessment means tacit approval, without prejudice to the competent authority for the project’s approval to ponder nonetheless, the instructive elements of the environmental impact assessment procedure.
Initiated the project’s execution, there is room for a post-assessment of the environmental impact, since there is an administrative monitoring of the effectiveness of the environmental measures defined in the environmental impact statement. In this sense, the authority for environmental impact assessment might, in relation to significant negative environmental impacts not foreseen, determine, until the deactivation of the project, that additional measures are needed in order to minimize or compensate those impacts.
After issued the environmental impact statement or the decision on environmental compliance of the project under execution, for any valid reason or when the circumstances justify it, may take place a procedure for amending those regarding measures of mitigation and compensation and the monitoring plans, which is done in coordination with the proposer.
The procedure of environmental impact assessment of plans and programs is based on the environmental report, which is submitted to the technical consultation of the competent authorities and the public consultation. The result of the study of the report and comments, observations and information gathered is expressed in an environmental statement and must be reflected in the plan or programs approved.
The public consultation cited above, is one way of ensuring that the public is informed and can engage with utility in the decision-making that concern or might affect them. On the other hand, it is a way of improving the quality and transparency of the relevant environmental decisions.
The assessment of the environmental impact of projects, plans and programs must include, in the case of impacts on other Member-States, the availability of the necessary information and consideration of the respective pronunciation and other instructive elements arising from such participation.
The contextual nature and direction of the environmental impact assessment of the projects explain the importance of time in the validity of the respective decisions, which translates in the discipline of expiry and the extension of the environmental impact statement and the decision of environmental compliance of the execution of the project.
Being the environmental impact assessment a prerequisite for the approval of a project, its absence or deficiencies cannot fail to project on their validity, which might be validated in the administrative tribunals through prosecution action not only by the holders of subjective legal positions but also by popular authors, in the framework of the law on “the right of procedural participation and popular action” (law no. 83/95, of 31/08).
The competent authorities of the Member-States “are required to adopt, in the scope of their competences, all the general or particular measures in order to remedy the omission of the environmental impact assessment of a project” that they should have been subject (case of 7 January 2004, C-201/02, no. 70), “in particular by withdrawal or suspension of an approval already given, for that assessment to be conducted” (judgment of 3 July 2008, C-215/06, no. 59). National courts should adopt, within the limits of the procedural autonomy of the states, in pertinent court proceedings, appropriate measures to prevent the execution of a project in the absence of the required environmental assessment.
Also with regard to plans and programs, the competent authorities of the Member-States should adopt measures that invalidate or suspend the plan or program that was not preceded by proper environmental assessment (judgment of 28 February 2012, C-41/11, no. 46).
Disrespect for the environmental impact assessment regime of projects is likely to generate offense liability and non-contractual civil liability. The latter involves, depending on specific situations, the restoration of the situation prior to the offense, or the reduction or compensation of the impacts caused and/or indemnity obligations.
Portugal (as the other Member-States of the EU) has specific and detailed obligations of informing the European Commission about the terms of implementation of the environmental impact assessment regime. The “services and bodies of the respective autonomous regional governments”, for this effect, also have obligation of informing the national authority of the environmental impact assessment (v.g., articles 36 and 48 of DL no. 151-B/213).
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Ana Fernanda Neves