An important decision has been handed down by the European Court of Justice on the definition of “plans and programs” in the SEA Directive.
What is an SEA?
An SEA (Strategic Environmental Assessment) is essentially an environmental impact assessment. However, what distinguishes an SEA from an ordinary EIA is that an SEA should intervene much earlier in the decision-making process, and also it targets government plans and programs as well as policies and legislation, as opposed to individual projects (which is where the ordinary EIA comes in).
The UNECE Protocol on Strategic Environmental Assessment (the Protocol on SEA) establishes clear and transparent procedures for integrating environmental and health considerations into national development plans, programmes and legislation in such potentially polluting economic sectors as agriculture, energy, industry, transport, regional development, land use, waste management or water management. The Protocol on SEAs is an international agreement under the auspices of the United Nations Economic Commission for Europe and provides a legal framework for SEA procedures across countries that have joined the agreement.
The Protocol was negotiated in 2003 to complement the Convention on Environmental Impact Assessment in a Trans-Boundary Context (the ESPO Convention). The protocol is in force since 2010 and is open to all member states of the United Nations and it is similar to the European Union’s directive on SEAs, Directive 2001/42.
An SEA is a step-by-step procedure that, when properly carried out, should provide analysis and communicate environmental and health considerations related to different planning options. These considerations are collected in consultation with relevant authorities and the public so that decision makers can compare all the pros and cons of each planning option.
The beauty of an SEA (when done properly) is that it intervenes early enough in the decision-making to prevent irreversible effects and costly mistakes due to bad planning The SEA should also improve transparency and public trust in decision-making.
Preparing a plan or program follows a number of steps that have logical links with the SEA procedure. Therefore it’s more effective to integrate an SEA into planning instead of doing first one and then the other. This saves time and keeps down additional costs for the planning procedure.
Any cost or delay that might arise from the SEA is easily outweighed by the benefits an SEA will bring when a policy enjoys public trust and is properly thought out (are you listening, Minister?).
The SEA process should start with a screening. This determines if an SEA is actually needed. The protocol on SEA provides the criteria for this if the answer is yes.
The Resource Manual to Support Application of the UNECE Protocol on Strategic Environmental Assessment provides practical examples and explanations on the SEA process.
In Chapter A3 it provides assistances in determining whether an SEA is required. This is important to understand when we consider the ECJ judgment later:
“8. A number of questions are asked about any candidate plan or programme, or a modification to a plan or programme (see para. 23), to determine whether an SEA is required under the Protocol, beginning with the following:
Is the sole purpose of the plan or programme to serve national defence or civil emergencies, or is it a financial or budget plan or programme? If so, no SEA is required.
Is the plan or programme being prepared for agriculture, forestry, fisheries, energy, industry including mining, transport, regional development, waste management, water management, telecommunications, tourism, town and country planning or land use? If not, SEA is not automatically required (unless it sets the framework for the future development and consent of projects and if it is likely to have significant environmental effects according to article 5).
- If the answer to the first question is no and to the second it is yes, then two more questions are asked:
Does the plan or programme set the framework for future development consent for projects listed in annex I to the Protocol?
Does the plan or programme set the framework for future development consent for any other project listed in annex II to the Protocol, and does the relevant project require EIA under national legislation?
If the answer to either of these questions is yes, then normally an SEA is required under the Protocol. However, if the plan or programme determines the use of a small area at a local level or is a minor modification to a plan or programme (art. 4.4), an SEA will be required only if the plan or programme is likely to have significant environmental effects according to article 5.”
The Manual continues a few pages later:
“20. We first need to consider how plans and programmes may be identified. It is clear that the name is not a sufficient indication: what is called a plan or programme may not be one within the definition used by the Protocol and so the Protocol would not apply to it.
- Similarly, plans and programmes are not always named as such: policies, projects, guidelines and strategies are some of the many labels attached to plans and programmes. An open mind is necessary at first when deciding what is a plan or programme. Here are some pointers derived from the EC Guide:
Recognize the wide scope and broad purpose of the Protocol.
Consider the extent to which an act is likely to have significant environmental effects.
Consider any formal statement that goes beyond aspiration and sets out an intended course of future action.
Examples of plans include:
o A document that sets out how it is proposed to carry out or implement a scheme or a policy
o Land use plans and development criteria
o Waste management plans
o Water resource plans
o Transport plans.
A programme may comprise a set of projects in a given area, for example, a scheme for regeneration of an urban area, comprising a number of separate construction projects.
It is not necessary to differentiate between plans on the one hand and programmes on the other: the Protocol treats them identically.
The Protocol also applies to modifications to plans and programmes. A good example of such a modification is where an existing land-use plan is revised regularly (perhaps every five years); the preparation of the revised plan would usually be subject to SEA. It is possible that a modification to a plan or programme for minor reasons (for example, changes to individual projects that do not significantly change the environmental effects of the plan or programme) may be exempt from SEA on these grounds but, as always, such an exemption should be examined carefully. In any case, the fundamental test is whether the modification is likely to have significant environmental effects.
A modification to a plan or programme may lead to significant environmental effects not yet assessed. Such effects may arise because of the nature of the modification or because of a change in the state of the environment.”.
What should an SEA contain?
The protocol on SEAs specifies the required content for the report:
Scoping and the environmental report (Article 6).
Public participation (Article 8).
Consultation with authorities.
Detailed consideration of these are beyond the scope of this blog but readers can read the Manual for a relatively accessible explanation of all these components.
The judgment: Patrice D’Oultremont and Others vs Région Wallonne (Case C-290/15)
The Wallonia government issued an Order on 13 February 2014 which dealt with the building and operation of wind farms in the region, including the measuring and limitation of magnetic, noise, light, and shadow flicker. This Order was issued without any form of environmental impact assessment or public consultation.
On 21 February 2013, the Wallonia Government adopted a ‘reference framework’, which was later amended in July of that year, setting out recommendations for the installation of wind turbines in the Wallonia Region. That document included a map (which was named a “benchmark map”) which was intended to provide a framework for the planning and implementation of the Wallonia Region’s wind-turbine program. That map was the subject of an environmental impact assessment.
A public inquiry was organised in all the municipalities of Wallonia from 16 September to 30 October 2013. The documents made available to the public during that inquiry included the reference framework, the benchmark map and the environmental impact assessment.
In the meantime, the Wallonia Government adopted the Order of 13 February 2014.
It was this Order that was challenged by the applicants, on the basis that it was not subjected to an SEA (impact assessment and a procedure involving public participation).
The Wallonia Government argued that the Order was not a “plan or program” for the purposes of the Directive (and the UN Protocol). They argued that the provisions of the Order were “dissociated” from the reference framework and the mapping of zones for the installation of wind turbines, and that that this fact deprived the order of “programmatic content in terms of setting a framework for wind-power generation”, and therefore it fell outside the definition. In other words, they argued that whilst the map might be a ‘plan or program’, the Order was not.
The ECJ rejected such a narrow interpretation of “plans or programs”, adopting instead a purposive interpretation, by looking at the overall objective of the SEA Directive and Protocol.
“39. “… the delimitation of the definition of ‘plans and programmes’ in relation to other measures not coming within the material scope of Directive 2001/42 must be made with regard to the specific objective laid down in Article 1 of that directive, namely to subject plans and programmes which are likely to have significant effects on the environment to an environmental assessment (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C 41/11, EU:C:2012:103, paragraph 40 and the case-law cited).
40 Consequently, given the objective of Directive 2001/42, which is to provide for a high level of protection of the environment, the provisions which delimit the directive’s scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly …”.
The Order was prepared and issued by a regional government, and it concerned the administration of an aspect of the energy sector:
“44. It is also common ground that the Order of 13 February 2014 concerns the energy sector and that it helps to define the framework for the implementation, in the Walloon Region, of wind farm projects which form part of the projects listed in Annex II to Directive 2011/92.”
The Court also found that the failure to designate a specific geographical area did not remove the order from the definition of “plans or programs”:
“45 As for the term ‘plans and programmes’, whilst it is true that it must cover a specific area, the fact nonetheless remains that it is not apparent from the wording of either Article 2(a) of Directive 2001/42 or Article 3(2)(a) of that directive that those plans or programmes must concern planning for a given area. It follows from the wording of those provisions that they cover, in the wider sense, regional and district planning in general.”
The Court made it clear that devious packaging (calling everything a “Guideline” for example?) will not allow governments or regional authorities to escape the provisions of the SEA Directive:
“48 Furthermore, as the Advocate General stated in point 55 of her Opinion, it is necessary to avoid strategies which may be designed to circumvent the obligations laid down in Directive 2001/42 by splitting measures, thereby reducing the practical effect of that Directive …” .
49 Having regard to that objective, it should be noted that the notion of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment …”.
50 In the present case, it should be noted that the order of 13 February 2014 concerns, in particular, technical standards, operating conditions (particularly shadow flicker), the prevention of accidents and fires (inter alia, the stopping of the wind turbine), noise level standards, restoration and financial collateral for wind turbines. Such standards have a sufficiently significant importance and scope in the determination of the conditions applicable to the sector concerned and the choices, in particular related to the environment, available under those standards must determine the conditions under which actual projects for the installation and operation of wind turbine sites may be authorised in the future.”
The final ruling of the ECJ was that the Order of the Wallonia government did indeed fall within the definition of “plans and programs”.
“On those grounds, the Court (Second Chamber) hereby rules:
Articles 2(a) and 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment must be interpreted as meaning that a regulatory order, such as that at issue in the main proceedings, containing various provisions on the installation of wind turbines which must be complied with when administrative consent is granted for the installation and operation of such installations comes within the notion of ‘plans and programmes’, within the meaning of that Directive.”
What does this mean in Ireland, particularly in respect of the Wind Energy Guidelines?
Whilst the Guidelines might fulfil all the criteria set out by the Court, it might be argued that the final judgment is more restrictive than the AG’s Opinion as it talks about “various provisions on the installation of wind turbines which must be complied with when administrative consent is granted for the installation and operation of such installations”. (my emphasis).
Some might argue that because Guidelines are not mandatory, and must simply be “had regard to”, that they do not fulfil the criteria for a “plan or program” and would not therefore require an SEA.
On the other hand, when one looks at the broad interpretation given to “plan or program” by the Manual on the Protocol, our wind energy guidelines fit most comfortably into that definition (bearing in mind the Manual is a Guide, and not a definitive finding).
I look forward to your comments in that regard.