Environmental Law

Law on Environmental Impact Assessment and Law on Planning and Construction: Are They Aligned, and Why Aren’t They?

The existing legal framework, both the domestic and the EU, should prevent building of objects that impose a threat to endangered species, ecosystems’ water regime or life of local communities in protected areas; furthermore, it should be impossible to plan building up of new facilities, threatening the ecosystem stability and lives of locals, in areas which are already seriously threatened with air, soil and water pollution. However, this is something we can witness regularly.

Majority of the laws dealing with environment protection has been adopted in Serbia in 2004. Although these laws are relatively reasonable and in line with European legal framework, these laws have proven to be inapplicable in practice. On one side, environmental protection has just been placed on the agenda through the adoption of these laws, thus meaning that the state administration was caught off guard when it comes to the implementation. On the other hand, there’s an evident lack of awareness on the importance of environment protection, especially taking into account the current trends regarding climate change and environmental conditions in 21st century.

Among the current legal documents, adopted 14 years ago, there’s the Law on Environmental Impact Assessment (Official Gazette of Serbia, no 135/2004, 36/2009, hereinafter: EIA Law). Besides, the following laws have been adopted: the comprehensive and fundamental law for environment protection – the Environment Protection Law, followed with the Law on Strategic Environment Assessment, dealing with environmental effect of strategic and planning documents, as well as the Law on Integrated Pollution and Prevention Control, dealing with the procedure of issuing integrated permissions for polluting facilities.

On prevention, precautions and polluter- (doesn’t) pay- principle

Environmental impact assessment is a preventive measure in the field of environmental protection, aimed at using studies, analyses and public participation in order to examine the effects which may have been created by implementing various projects: in the field of industry, mining, energy, traffic, tourism, agriculture, forestry, water resource management, waste management and municipal activities, as well as for the projects being planned in nature protected areas.

Environmental impact assessment is a process offering an opportunity for all interested parties, public in particular, to participate in decision making process in early stage, while all options are on the table, which practically means that this procedure has to be carried out before the construction starts. This offers a chance for all interested parties – local community, experts and organizations, civil society representatives, to play a corrective role and use this control mechanism in project development. This should, in theory, ensure protection of environment, natural resources, as well as sustainable development of agriculture, stable flow or services and resources, without threatening the ecosystem capacities.

Environmental Impact Assessment has origin in the principle of prevention and precaution, as well as in the ‘polluter pays’ principle, which are built into the Treaty on functioning of the European Union ( Article 191), as well as the Law on Environment Protection of the Republic of Serbia (Article 9). These principles are a foundation for environment protection, and, as such, they should be built into the other regulations dealing with environment protection and implemented in practice.

The principle of prevention and precaution means that each activity should be planned and implemented in a way that creates the smallest change possible and imposes the smallest risk possible for the environment and public health, as well as to reduce the pressure on the area, resources and energy consumption in construction and production processes. The principle of precaution is implemented through the environmental impact assessment and by using the best available technigy (BAT).

The ‘polluter-pays’ principle means that polluter is obliged to compensate for environmental pollution when his activities impose or may impose a threat to the environment. However, this principle is not applied in practice, particularly because of the issue on establishing accountability of a polluter and lack of proper monitoring, as well as because of very weak implementation of penalties for environmental pollution.

The existing legal framework, both the domestic and the EU, should prevent building of objects that impose a threat to endangered species, ecosystems’ water regime or life of local communities in protected areas; furthermore, it should be impossible to plan building up of new facilities, threatening the ecosystem stability and lives of locals, in areas which are already seriously threatened with air, soil and water pollution.

However, this is something we can witness regularly. There are many examples, starting with the construction of mini-hydropower plants in protected areas, construction works starting before the environmental impact assessment has been carried out, or without participation of the public and local communities in the decision making process.

On non-compliance with other regulations

Why is this possible despite having the Law on Environmental Impact Assessment, which explicitly says that no construction is possible before issuing of a permission on environmental impact assessment (as stated in Article 5)?

The problem occurs because of non-compliance of the Law on Environmental Impact Assessment and the Law on Planning and Construction. The Law on Planning and Construction does not strictly refer to the necessity of carrying out the environmental impact assessment procedure, as a part of the procedure of issuing a construction license, which is why the environmental impact assessment procedure has only formal character.

The Law on Planning and Construction only formally states that the environmental impact assessment is a part of a general project, however it does not strictly refer to the Law on Environmental Impact Assessment for its application. Furthermore, the following documents related to planning and construction: conceptual solution, project concept, construction permission project and implementation project – none of them has a mandatory permission on environmental impact assessment study as its integral part, for the project for which carrying out the environmental impact assessment procedure is mandatory.

The provisions of the Law on Planning and Construction, describing the procedure of issuing the construction permission, as well as ones related to the content of the request for issuing of a license, do not mention environmental impact assessment as a mandatory part of the request. Moreover, in the parts in which registration and implementation of construction is described, environmental impact assessment is again not mentioned, which is a big problem in particular, because this is the phase in which the construction has already started. This is a moment by which a permission on the environmental impact assessment study should have already been issued. This can cause many problems in practice, such as project implementation delay or total suspension of the project, unless a permission on the environmental impact assessment study is issued. It is mentioned, no sooner than in the Article 156 of the Law on Planning and Construction, that “…in the technical inspection, for the projects for which the environmental impact assessment is required, a person with expertise in the subject of the study has to participate…”However, this is not a reference to the Law on Environmental Impact Assessment, as a lex specialis” for the matter, which means that two most important regulations in this area do not refer to each other at all.

A chance to fix the issue

The line Ministry has published a Draft Law on Amendments to the Law on Planning and Construction. When it comes to aligning it with the Law on Environmental Impact Assessment (which is also in the initial phase of amending and adjusting with the relevant legal documents of the EU), we can already say that there would be no meaningful changes, whether direct or indirect ones, which means that the issues emerging from non-compliance are not going to be fixed on this occasion.

Unless the changes don’t include the provisions related to environmental impact assessment, it would be yet another opportunity missed to strictly incorporate environmental impact assessment procedure as a mandatory precondition in getting a construction permission. The amendments aimed at non-compliance with the Law on Environmental Impact Assessment, should make the Law on Planning and Construction compliant with the Article 2 of the Directive 2011/92/EU on Environmental Impact Assessment, which explicitly imposes an obligation for the states to “take all necessary measures to ensure that, prior to issuing a permission for the projects which may have a significant impact on the environment, permissions on construction and environmental impact assessment have to be issued”. Non-compliance with these laws is mostly due to the lack of horizontal coordination between the line Ministries, which is a pressing issue in domestic legislation.

What next?

Taking into account that the Draft Laws on amendments to the Law on Planning and Construction and the Law on Environmental Impact Assessment are still being developed, there’s still an opportunity to change these texts, which means it’s not late to involve all relevant factors and ensure mutual coordination, which is something that hasn’t been ensured before, and align these regulations. The Law on Environmental Impact Assessment (as lex specialis), in relation to the Law on Planning and Construction (as lex generali), should provide detailed provisions for the entire procedure of developing an environmental impact assessment studies for facilities for which this procedure is mandatory. On the other hand, the Law on Planning and Construction has to be more specific when it comes to explicitly determining construction phases in which a permission for environmental impact assessment study is mandatory, as well as documentation related to environmental impact assessment study, which should be submitted before the construction starts.

This is why we need to remove every dilemma, reduce financial risks for investors because of an unclear procedure of permission issuing, as well as to prevent any possibility of misuse of these laws, particularly taking into account the extent to which they are non-compliant at this point.

Authors: Mirjana Jovanović, Belgrade Open School and Jovan Rajić, Renewables and Environmental Regulatory Institute

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