Action Programmes for the Environment

ACTION PROGRAMMES FOR THE ENVIRONMENT

The EC has adopted action programmes for the environment since 1972. These programmes contain an indication of the policy behind EC environmental laws. They are not binding measures in themselves but are useful indicators of the framework within which the Commission is working to bring about new environmental laws. The current action programme ran until the year 2000. A review of the action programme in 1995 identified several priority areas for action over the next few years. These include improving the implementation and enforcement of Community legislation, integrating environmental considerations into the Community’s other policies, using a wider range of policy instruments (such as environmental charges and environmental liability), additional action in information, training and raising public awareness of environmental issues and reinforcing the Community’s international actions to protect the environment.

SOURCES OF EC ENVIRONMENTAL LAW

EC environmental law is found in the EC Treaty, the directives, regulations and decisions adopted by the Community’s institutions, the international agreements, which the EC has ratified, and the case law of the European Court and the Court of the First Instance.

EC TREATY

The EC Treaty lays down the institutional framework of the European Community and defined institutional powers and procedures to be followed in adopting laws. It enables the institutions to take three forms of legally binding measures – namely directives, regulations and decisions. These can all be used in the environmental field.

The EC Treaty also contains specific articles relating to the environment. Articles 130r to 130t provide specific justification for pure environmental protection measures. Article 130r lists several objectives of Community action relating to the environment. These include the preservation, protection and improvement of the quality of the environment, the protection of human health, the prudent and rational utilization of natural resources and the promotion of measures at international level to deal with regional or worldwide environmental problems. This article also includes the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay. The precautionary principle also applies to Community environmental policy. The exact meaning of the precautionary principle is unclear but it may require activities, which are potentially harmful to the environment to be regulated even if there is not yet any conclusive scientific proof of their harmfulness. Environmental protection requirements are to be a component of the Community’s other policies.

Article 130s lays down the legislative procedures for adopting environmental measures and Article130t provides for the possibility that stricter measures may be employed by member states. Article 100a of the treaty will also be relevant to environmental matters if laws adopted to allow the Community’s internal market to be set up have additional environmental aims.

Directives

Directives are the most common form of EC legislation. They set out a result which member states are to achieve (for example, that drinking water must comply with certain standards) but leave to the member states to decide how that result will be reached. To fully comply with directives member states have to:

• Pass national laws which give full effect to the directive within the timetable laid down in the directive itself (normally within two years of the directive’s adoption) and inform the Commission that they have passed the required laws; and
• Make sure that these laws are complied with in practice. In passing laws to implement a directive, member stats do not need to transpose the directive word for word into their national legislation. However, they must make sure that the laws passed guarantee the full application of the directive. This means that where the directive is intended to create rights for individuals, the persons concerned must be able to see what their rights are and, if necessary, rely on them in national courts. Adopting administrative practices which can be altered easily and which may not receive adequate publicity will not be enough to implement a directive. States cannot escape the obligation to pass laws to implement directives. Even where they are in practice, already acting in accordance with the directive’s requirements, states must pass laws implementing the directive’s provisions.

As stated, member states can decide for themselves what methods to use to achieve the result laid down in the directive. This means that if, for example, a directive states that nitrogen dioxide levels in air (generally due to traffic exhaust fumes) must not exceed certain concentrations, it is up to the state to decide what methods it will employ to make sure that those concentrations are not exceeded. This means that if the directive itself does not require a reduction in traffic to achieve those levels, the state is not required to reduce traffic if other methods are available to allow it to comply with the directive’s standards. The member state can decide how to achieve the required levels but it must make sure that it achieves the result required by the directive. It will not be enough for a state to say that it has done its best to achieve the result.

Regulations

Regulations are directly binding on the persons to whom they are addressed including member states, individuals and legal persons. They can be made by either the Commission or the Council. Power to make decisions may be expressly given by the EC Treaty or by specific regulations or directives. Again, they are not used often in environmental matters.

Decisions

Decisions are directly binding on the persons to whom they are addressed including member states, individuals and legal persons. They can be made by either the Commission or the Council. Power to make decisions may be expressly given by the EC Treaty or by specific regulations or directives. Again, they are not used often in environmental matters.

International agreements

The EC has the power to enter into certain international agreements. These agreements will them become part of EC law. This has three consequences. Firstly, it means that the international agreement can give rise to rights and duties, which may be relied upon by individuals in national courts (see Chapter 10). Secondly, decisions of any organizations created by the agreement will also become part of Community law. Finally, the European Court will be able to interpret and apply the agreement and decisions of the organization created by the agreement.

Case law of the European Court and Court of First Instance

Judgements of the European Court and the Court of First Instance are important in interpreting provisions of EC law. Only the European Court can give an authoritative interpretation of EC law or a decisive judgement on whether or not a member state has failed to comply with a provision of EC environmental law. Since judgements of the Community courts will affect the way in which EC environmental laws are applied and may lead to Community and national environmental laws being changed, it is vital to be aware of the court’s rulings.

ENVIRONMENTAL IMPACT ASSESSMENT

The environmental impact assessment (EIA) directive is perhaps the most well known of the ECs environmental laws. It requires an assessment of the environmental impact of any project likely to have significant effects on the environment before any consent can be given. The directive lays down procedures for assessments but does not prevent a project from obtaining consent, even if the EIA shows that it will damage the environment.

Projects that may require assessment are listed in two annexes to the directive. Projects in annex 1, such as crude-oil refineries, waste disposal installations for the incineration, chemical treatment or landfill of toxic and dangerous waste, and thermal power stations with heat output of 300 megawatts (MW) or more, must always be subject to EIAs before they receive consent.

Annex II projects are to be subjected to EIAs “where member states consider (the project’s) characteristics require assessments.” Projects in annex II include certain infrastructure projects, processing of metals and activities in the chemical, food, textile, leather, wood and paper industries. Although states seem to have a lot of discretion in relation to annex II projects, the discretion may sometimes be non-existent because of the particular location or effects of a proposed project. For example, if construction of a dam would flood a protected habitat, if building a ski –lift and hotel complex for thousands of tourists was proposed within a processed habitat, or if planning permission for open-cast mining would require thousands of people to leave their homes, the state has no real discretion as to whether or not to carry out an EIA. These projects would clearly have “significant effects on the environment” and assessment would therefore be requires.

In relation to annex 11 projects, member states can lay down criteria and/or thresholds to determine which of these projects require an EIA. These thresholds must not be used to exempt a whole class of project from an EIA unless all projects excluded could, when viewed as a whole, be regarded as unlikely to have significant effects on the environment.

The environmental impact assessment must describe and assess the direct and indirect effects of the project on humans, fauna, flora, soil, water, air, climate, landscape and the interaction between these. The direct and indirect effects of the project on material assets and the cultural heritage must also be described and assessed. Developers must supply certain information to the national authorities, including at least, a description of the project (incorporating information on the site, design and size of the project), a description of the measures envisaged to avoid, reduce if possible, remedy significant adverse effects, the data required to identify and assess the project’s main environmental effects and a non-technical summary of this information.

Authorities with environmental responsibilities, which are likely to be concerned with the project, must have an opportunity to express their opinion on the request for consent. Any request for development consent and any information gathered must be made available to the public ant the public concerned must have the opportunity to express an opinion before the project is initiated. The detailed arrangements for this are to be decided upon by the member states. If a project is likely to affect the environment in another member state, the information gathered must be sent to that state at the same time as it is made available to the public. All information gathered must be taken into consideration during the development consent procedure. Once a decision has been made about the project, the national authority will inform the public concerned of its content, any conditions attached to the decision and the reason for that decision.

A new directive has recently amended the original EIA directive. Member states have had to comply since 14 March 1999. Where a request for consent for a project is submitted to a national authority before this, the provisions of the original directive will apply. The amendments clarify the terms of the original directive and extend the list of projects subject to assessment. When the directive comes into force, a more formal screening process will be undertaken to decide whether or not an annex 11 project is to be subject to an EIA.

ACCESS TO ENVIRONMENTAL INFORMATION

The environmental information directive gives the public extensive rights of access to information. Anyone requesting information relating to the environment from public authorities or “bodies with public responsibilities for the environment and under the control of the public authorities” should receive it without having to explain why they want it. “Public authorities” and “information relating to the environment” are defined widely by the directive. Access to information can only be refused in certain defined circumstances. Public authorities must reply to information requests within two months and if access to the information is refused, the reasons for the refusal must be given. If someone believes that a request for environmental information has been unreasonably refused, ignored or inadequately answered, a judicial or administrative review of the decision can be sought. The member states may charge for the supply of information but these charges must be reasonable. Member states are required to provide the public with general information on the state of the environment.

This directive is extremely important for any group or individual involved in environmental protection and its main provisions are therefore set out below. Where groups or individuals are looking for environmental information , they may find it useful to mention this directive since the national laws implementing it in the member states may be inadequate. Reminding authorities of the precise terms of the directive may ensure that these authorities provide the information as required by the directive.

INTEGRATED POLLUTION PREVENTION AND CONTROL

Traditionally, laws relating to the control of environmental pollution have treated each sector of the environment separately. For example, laws adopted in the past were aimed solely at reducing water pollution or at preventing air pollution or at controlling waste. This approach created the danger that separate controls on emissions to air, water and soil could encourage pollution to be shifted between different environmental media rather than ensuring protection of the environment as a whole. If, for example, the laws regarding discharges to air were stricter than those relating to discharges to water, industries may decide to switch their discharges to water to escape the stricter rules.

In 1996, the EC adopted a new approach, which aims to prevent or minimize emissions of substances, vibrations, heat and noise to air, water and soil, and at the same time, to take waste management into account. The directive on integrated pollution prevention and control (IPPC) sets out a framework of permits for certain industries. Common EC emission limits to be applied within the framework of this directive will be adopted later. The main types of industry, covered are energy, production and processing of metals, the mineral industry, the chemical industry, waste management and other activities (including pulp and paper making plants; dyeing of textiles, tanning of hides; slaughterhouses; food production processes; intensive rearing of poultry and pigs; installations for disposal or recycling of animal carcasses and animal waste; installations treating substances, objects or products with organic solvents where their treatment capacity exceeds certain limits; and installations for the production of carbon electro graphite by means of incineration or graphitisation).

All industries covered by the directive require a permit. Applications for permits must provide the national authorities with specified information and the permits must contain the conditions required by the directive and, in particular, emission limit values based on the best available techniques (BATs). Permits must include all measures necessary to ensure that the installation is operated so that the following requirements are complied with:

• All appropriate preventive measures are taken against pollution, in particular through the application of BAT (but the authorities cannot prescribe the use of a particular technique or technology). “Pollution is defined in the directive as “the direct or indirect introduction as a result of human activity, of substances, vibrations, heat or noise into the air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment.
• No significant pollution is caused.
• Waste production is avoided; where waste is produced it should be recovered or, where that is technically and economically impossible, disposed of while avoiding or reducing any impact on the environment.
• Energy is used efficiently.
• Necessary measures are taken to prevent accidents and limit their impacts.
• When activity stops or industry closes, necessary measures are taken to avoid pollution risk and the site of operation returns to a satisfactory sate.

If an environmental quality standard requires stricter conditions than those, which can be achieved using BAT, permits must also include additional measures. Other specified conditions are also laid down in permits.

These requirements apply to new installations from the end of October 1999 and to existing installations from October 2007.

Any substantial change to the operation of an installation has to receive a new permit and states are to reconsider permits periodically and update the conditions if necessary. If more than one national authority is involved in granting a permit, the authorities must cooperate to ensure that the environment is viewed as a whole.

Applications for permits are to be made available to the public to allow them to comment before the national authority makes a decision. Decisions on permits and the results of monitoring releases are also to be made available to the public.