Important ECJ Ruling on the SEA Directive

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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?).

 

Screening

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).

  1. 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?

  1. 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.

  1. 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.

  1. It is not necessary to differentiate between plans on the one hand and programmes on the other: the Protocol treats them identically.

  2. 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.

  3. 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.

􀁸 Transboundary consultations.

􀁸 Decision

􀁸 Monitoring.

 

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.”

 

Conclusion

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.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans and tagged , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

8 Responses to Important ECJ Ruling on the SEA Directive

  1. Pat Swords says:

    Neil

    There have really only been two cases in the ECJ dealing with Strategic Environmental Assessment, incidentally both came from Wallonia. In both cases it was Advocate General Kotott, who gave the formal opinion in advance of the decisions, namely on:

    Patrice D’Oultremont and Others vs Région Wallonne (Case C-290/15)

    Joined Cases C‑105/09 and C-110/09 Terre wallonne ASBL v Région wallonne and
    Inter-Environnement Wallonie ASBL v Région wallonne

    It both cases she came down hard on the fact that an SEA was a fundamental provision of European law, which could not be bypassed, even to the point of drawing a linkage to the Charter of Fundamental Rights in the Lisbon Treaty. However, the decisive criterion for applicability of a plan / programme to the SEA procedure is does it ‘set the framework for future development consent’. In the previous cases back in 2009 the Advocate General clarified this quite well in Points 60 to 67 of her opinion as to the concept of ‘set the framework for future development consent’:

    http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:62009CC0105

    As she concluded on this subject:
    67. To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources.

    Clearly our wind energy guidelines fall with the above. While the European Court did not adopt this text in its final decision on these two joined cases, it came to the conclusion that an SEA was required for the Action programme implementing the Nitrates Directive, which was the subject matter of the dispute in the two joined cases. Note carefully the wording it used:

    53 Also, it is clear from Article 5(4) of Directive 91/676 that action programmes adopted under Article 5(1) must provide for a set of measures compliance with which can be a requirement for issue of the consent that may be granted for projects listed in Annexes I and II to Directive 85/337, and in respect of the definition of which Directive 91/676 gives Member States a certain discretion. That is so in particular in the case of measures concerning the storage of livestock manure provided for in Annex III to Directive 91/676 as regards the intensive rearing installation projects listed in Annexes I and II to Directive 85/337.

    54 In such a situation, the existence and scope of which it is nevertheless for the national court to assess in the light of the action programme concerned, it must be held that the action programme is to be regarded, in respect of those measures, as setting the framework for future development consent of projects listed in Annexes I and II to Directive 85/337 within the meaning of Article 3(2)(a) of Directive 2001/42.

    “Set of measures compliance with which can be a requirement for issue of consent” – to me describes our wind energy guidelines perfectly. However, I’m just an engineer and not a lawyer and others may disagree.

    I was also impressed with the Advocate General’s pragmatic approach in her opinion this year on C-290/15.

    83. The Council of State may nonetheless have to examine whether the environmental assessment and public participation exercise carried out in connection with the other initiatives of the Walloon Region to regulate use of wind power also included the environmental effects of the contested order, as EDORA contends. After all, since the SEA Directive does not in principle require that an assessment of environmental effects be performed twice, a separate environmental assessment of that order might have been superfluous. (40) If, however, Mr D’Oultremont and others is correct in their submissions that the contributions to the public participation process were not analysed, that process cannot replace a specific environmental assessment of the contested order.

    So if our ‘Masters’, as that is whom they deem themselves to be, try to argue that an SEA of wind energy guidelines is superfluous, as they’ve done it before, then I can only quote the ‘nickname’ of the State of Missouri, which appears on the license plates there, namely; “Show me”. Plus any documentation they would try to refer to could want to be good and not limited to their favourite phrase ‘consultation’, but actively document that ‘public participation in decision-making’ occurred and the public input was analysed, i.e. it ‘was taken due account of in the final decision’. In other words the standard approach here, such as by An Bord Pleanala, doesn’t cut mustard. You can’t just summarise the public input and leave it at that; there has to be evidence of how it was analysed, the decision maker may or may not not agree with it, but there has to be evidence of why it was or was not agreed with. Indeed, Point 83 above would indicate that if any such matters in terms of glaring deficiencies on public participation came before the European Court, they would be looked on sympathetically.

    Finally the video the EU prepared for UNECE on SEA describes the whole process really well in layman’s terms, particular as to how it should be done for plans / programmes related to energy and as to the importance of assessing and taking into account health impacts:

    As to why the EU Commission is refusing to do one, to the point of breaking its own legal framework, for the renewable energy programme is not explained in this youtube video – suggestions as to why are welcome!

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  3. Pat Swords says:

    Neil

    I think the points raised at the end of your article were already answered by the ECJ in case:
    C-567/10 – Inter-Environnement Bruxelles and Others

    http://curia.europa.eu/juris/liste.jsf?language=en&num=C-567/10

    The Belgian Court in this instance referred the following to the ECJ:

    Given these differences of interpretation of Directive 2001/42 that were noted, the Cour constitutionnelle decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

    ‘(1) Must the definition of ‘plans and programmes’ in Article 2(a) of Directive 2001/42 … be interpreted as excluding from the scope of that directive a procedure for the total or partial repeal of a plan such as that applicable to a specific land use plan, provided for in Articles 58 to 63 of the [CoBAT]?

    (2) Must the word ‘required’ in Article 2(a) of that directive be understood as excluding from the definition of ‘plans and programmes’ plans which are provided for by legislative provisions but the adoption of which is not compulsory, such as the specific land use plans referred to in Article 40 of the [CoBAT]?’

    The position of the ECJ was quite clear:

    28 It must be stated that an interpretation which would result in excluding from the scope of Directive 2001/42 all plans and programmes, inter alia those concerning the development of land, whose adoption is, in the various national legal systems, regulated by rules of law, solely because their adoption is not compulsory in all circumstances, cannot be upheld.

    29 The interpretation of Article 2(a) of Directive 2001/42 that is relied upon by the abovementioned governments would have the consequence of restricting considerably the scope of the scrutiny, established by the directive, of the environmental effects of plans and programmes concerning town and country planning of the Member States.

    30 Consequently, such an interpretation of Article 2(a) of Directive 2001/42, by appreciably restricting the directive’s scope, would compromise, in part, the practical effect of the directive, having regard to its objective, which consists in providing for a high level of protection of the environment (see, to this effect, Case C‑295/10 Valčiukienė and Others [2011] ECR I‑8819, paragraph 42). That interpretation would thus run counter to the directive’s aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures.

    So just because the wind energy guidelines don’t have to be followed by ABP 100% of the time, i.e. they are not fully compulsory, doesn’t make the procedure for their development exempt from the Strategic Environmental Assessment Directive. Anyhow, see what others think.

  4. Pat, I agree with you. I am therefore puzzled as to why the ECJ chose that particular phrase in their finding, especially as it did not tally with the tenor of AG Kockott’s Opinion. Perhaps it was lost in translation?

  5. Pat Swords says:

    Neil

    I think it might have been that the ECJ’s wording in their judgement of last month, was just ‘bounce back’ on the question proposed by the referring Court:

    ‘Are Articles 2(a) and 3(2)(a) of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment to be interpreted to the effect that a regulatory order containing various provisions on the installation of wind turbines, including measures on safety, inspection, site restoration and financial collateral and permitted noise levels set having regard to town and country planning zones, such provisions setting a framework for the grant of administrative consent allowing a developer to install and operate installations which are automatically subject under national law to an assessment of their effects on the environment, must be considered to be a “plan or programme” within the meaning of those articles?’

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  7. Pieter Vandenheede says:

    This is a very interesting post as are the replies (reading them with Belgian eyes here so pardon my English).

    Personally I don’t think we have quite seen the end of the scope of the SEA Directive. Nor the nature (compulsory or non-compulsory to adopt) nor the form of adoption (law or other) appear relevant for the question whether something is a “plan or programme”. With the specific objective or Article 1 of the SEA Directive the ECJ can easily rule in favour of the application of SEA.

    Not very aware of Irish law, I would like to add three minor points:

    1.
    The EU Ombudsman has recently shed her light on some Irish planning applications (which are the equivalent of an individual development consent and therefore likely more EIA than SEA I presume?): https://www.ombudsman.europa.eu/en/cases/decision.faces/en/74989/html.bookmark

    2.
    Perhaps one more ECJ case is worth to mention: C-387/97 (Commission v. Greece). Although not directly on the SEA Directive it could be useful to know what kind of measure is not a plan:
    “legislation or specific measures amounting only to a series of ad hoc normative interventions that are incapable of constituting an organised and coordinated system for the disposal of waste and toxic and dangerous waste cannot be regarded as [such] plans” (para. 76).

    3.
    What about the final remarks on the d’Oultremont case where the ECJ makes a distinction between Aarhus/Kiev and SEA? I find these specific paragraphs very interesting because the ECJ essentially acknowledges that legislative acts are not covered in the plans/programmes definition of Aarhus/Kiev.

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