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Guidance on Public Participation in Environmental
Impact Assessment in a Transboundary Context
(Text without Annex 1 and Annex 2 )

Contents

1.Introduction
1.1. Role and benefits of public participation in environmental
decision-making
1.2. The background, mandate and aim of the guidance
1.3. Case studies as the basis for the guidance

2. Public participation provisions of the Convention and their practical application

2.1. Establishment of national EIA procedure that permits public participation
2.2. Providing an opportunity for the public in an affected Party that is
equivalent to that provided to the public in the Party of origin
2.3. Financing and translation
2.4. Notification of affected Party and public of Party of origin. Timing.
2.5. Joint responsibility of concerned Parties for participation of the public
of the affected Party in a transboundary EIA
2.6. Distribution of the EIA documentation and submission
of comments of public of affected Party
2.7. Final decision and results of public participation

3. Recommendations for increasing effectiveness of public participation
in a transboundary EIA

3.1. Preliminary work with potential participants
3.2. Contacts with potential affected Parties:
Bilateral and multilateral agreements; Joint bodies
3.3. Organising points of contact for public
3.4. Role of the public

4. Final provisions

4.1. Implementation of the guidance
4.2. Review
Annexes
Annex 1. Text of the Convention
Annex 2. Case studies
List of case studies
Oil pipeline Baku-Tbilisi-Ceyhan (BTC)
Bridge over Danube river
Multipurpose hydropower system on the river Drava
Renovation project of the Narva power plants
Nuclear power plant ‘Loviisa-3”
Flood prevention
Power line
Under-sea pipeline for hydrocarbon transfer
Kyrgyz-Chinese paper mill
Dredging for aggregates in the English Channel/La Manche

1.Introduction                                          

1.1. Role and benefits of public participation in environmental decision-making

         Principle 10 of the Declaration of the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro (Brazil, 1992) emphasises that environmental issues are best handled with the participation of all concerned citizens, at the relevant level [1] . Agenda 21 adopted by UNCED recognised the important role of public participation in environmental impact assessment in achieving sustainable development [2] . The World Summit on Sustainable Development in Johannesburg (South Africa, 2002) developed further these provisions. The principles promoted by these conferences are fully integrated into the provisions of the UNECE Convention [3] on Environmental Impact Assessment in a Transboundary Context [4] , which came into force in 1997.

When governments enable the public to participate in decision-making, they help meet society’s goal of sustainable and environmentally sound development. Public participation in environmental decision-making and, in particular, in environmental impact assessment, may lead to some benefits in these processes. Thanks to the fact of public participation, the process of decision-making, up to and including the final decision, becomes more transparent and legitimate. Public debate on proposed activities among all interested groups at an early stage of decision-making may prevent or mitigate conflicts and adverse environmental consequences of the decisions with transboundary impacts.

For many UNECE member countries the provisions of the Convention on access to information, public participation and access to justice in environmental matters [5] provide the basic requirements on public participation in environmental matters. This is also the case in regard to the provisions on public participation in the development of plans and programmes under the protocol on Strategic Environmental Assessment (SEA) adopted at the Kiev Ministerial Conference (2003) and signed by thirty-six States and European Community [6] .

 1.2.The background, mandate and aim of the guidance

            The importance of public participation in a transboundary EIA and the need for guidance on it were recognised by the Parties to the Convention at their first two meetings (ECE/MP.EIA/2, annex VI, item 4) and  (MP.EIA/2001/3, decision II/3).

         At the first meeting of the Parties to the Convention (Oslo, 18-20 May 1998), it was agreed that the work-plan for the implementation of the EIA Convention for 1998-2000 should include work to prepare guidance on public participation in a transboundary EIA. A first draft version of guidance was developed by the Russian Federation, as lead country, with financial support from Italy.

         The second meeting of the Parties of the Convention (Sofia, 26-27 February 2001) welcomed the work carried out by the Russian Federation in developing draft guidance. This meeting recommended the Parties to develop this guidance further, inter alia on the basis of case studies, and to put forward proposals for consideration at the third meeting of Parties. Further work has been carried out by the Russian Federation as lead country with financial support from the United Kingdom and with the practical support of the Secretariat of the Convention. The Russian Federation nominated the Agency for environmental assessments “Ecoterra” to co-ordinate the practical work on this issue.

According to decision II/3 of the second meeting of the Parties of the Convention, the aim of the guidance is to assist competent authorities and the public in organising effective public participation in environmental impact assessment in a transboundary context.

 1.3.Case studies as the basis for the guidance

         As recommended by the second meeting of the Parties to the Convention, case studies of public participation in a transboundary EIA were used as the basis for the guidance. A special format for describing these case studies was developed by the Russian Federation with the assistance of the United Kingdom and further refined on the basis of comments received by the Parties to the Convention. This format was sent by the Secretariat of the Convention to the focal points of the Convention with a request to present case studies.

         Case studies were submitted by the following countries: Azerbaijan, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Hungary, Italy, Kyrgyzstan, Romania, Russian Federation and United Kingdom (Annex 2). The authors of these case studies were invited to participate in a meeting of experts of the UNECE Task Force on public participation on a transboundary EIA in Moscow (25-27 September 2003) at which the case studies and draft guidance were discussed. Views expressed by delegates at this workshop have been taken into account in preparing this guidance as well as some ideas in the most relevant Guidance on the practical application of the Convention [7] .

         The procedure for effective public participation in a transboundary EIA contains a number of aspects, some of which are clearly described in the Convention. Other important aspects, for example, translation, timing, public comments or obligations and financial aspects are left to the discretion of the Parties to define. This approach is consistent with other European law, e.g., the EU EIA Directive requires public consultation, but the detailed arrangements are for the Member States to lay down, consistently with the requirements of the Directive. This guidance provides recommendations based on practical implementation deriving from the case studies on the described aspects of public participation in a transboundary EIA found in the Convention as well as the ones left to the Parties’ discretion.           

2.      Public participation provisions of the Convention and their practical application

The following important aspects of public participation in transboundary EIA are established by the Convention: 

(a)           establishment of a national EIA procedure regarding proposed activities listed  in Appendix I to the Convention that permits public participation (Article 2.2) [8] ;

(b)          the opportunity for equivalent public participation in the EIA procedure for both the public of the affected Party and the public of the Party of origin (Article 2.6);

(c)           notification of the affected Party as early as possible and no later than when the Party of origin informs its own public about a proposed activity (Article 3.1); the notification shall contain the information provided in Article 3.2 of the Convention;

(d)          joint responsibility of the concerned Parties for the participation of the public of  the affected Party in the areas likely to be affected in a transboundary EIA giving this public the possibilities to make comments or objections(Article 3.8); this responsibility applies when the competent authority of the affected Party informs the Party of origin that it wishes to take part in the transboundary EIA procedure;

(e)           joint responsibility of the Parties concerned for the distribution of the EIA documentation and for submission of comments by the public of the affected Party in the areas likely to be affected (Article 4.2);  and

(f)            a requirement that, in the final decision on the proposed activity, the Parties ensure that due account is taken of the comments on or objections to the proposed activity from the public of the affected Party in the areas likely to be affected. These include comments on the EIA documentation (Article 6.1).

These provisions may seem obvious and simple. In national EIA procedures and legislation they may well be routine, standard practices. But in a transboundary context  they may be ill-defined or perhaps not addressed at all. So when transboundary EIA cases arise they may present unfamiliar issues for which Parties are not always prepared - issues such as as time allowed  for responses, different consultation bodies, knowing whom to contact and the  most suitable methods of doing so, language and translation issues, legal systems etc.

This guidance seeks to address some of these issues by reflecting on information and practice taken from case study material submitted by several countries with experience of transboundary EIA.

2.1.Establishment of national EIA procedure that permits public participation

         Article 2.2 of the Convention requires Parties to establish a national environmental impact assessment procedure that permits public participation. The Convention does not specify the detail of such a procedure recognising that it is a matter for the national authorities to determine. But the provisions need to reflect the obligations that arise from compliance with the Convention [9] . 

         It is recommended that as a minimum national EIA procedures should include provisions that:

(a)           the public is informed on any proposals relating to an activity with potential adverse environmental impacts in cases subject to an EIA procedure in order to obtain a permit for a given activity;

(b)          the public in the areas likely to be affected is entitled to express comments and opinions on the proposed activity when all options are open before the final decision on this activity are made;

(c)           reasonable time-frames are provided allowing sufficient time for each of the different stages of public participation in EIA procedure;

(d)          in making the final decision on the proposed activity, due account is taken of the results of the public participation in EIA procedure.

         The essence of public consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. It must go without saying that to achieve consultation sufficient information must be supplied by the consulting party to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled [10] . Consulted party in this context is not a "Party" in the Convention sense but could extend to competent and environmental authorities, NGOs, local community groups, individuals, etc.

         Many countries have some elements in their national EIA procedures, which permit public participation (Box 1).

Box 1. Elements of effective national EIA procedures for public participation:

*      The public in Finland, France, Italy, United Kingdom and in other countries which are member States of the European Union is informed, in accordance with the EC EIA Directive (Directive 85/337/EEC, as amended by Directive 97/11/EC and by Directive 2003/35/EC [11] ), i.e. at the very early stage of the procedure (Annex 2, case studies 2.6 - 2.8, 2.10).

*      According to the EU Legislation (EIA Directive), a reasonable time-frame for different phases of EIA procedure shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making:

·      in Croatia and in Italy EIA documentation is available to the public during periods of 30 days (case study 2.8);

·      in Estonia at least 2 weeks should be given for public comments for the EIA programme* and for the EIA statement (case study 2.4);

·      Finland provides 4 weeks for public discussion of the EIA programme* and 7 weeks for discussion of the  EIA report (case study 2.7);

·      in the United Kingdom, for marine dredging projects a period of 10 weeks is allowed for initial consultation. A further period of 6 weeks is allowed to comment on the initial consultation summary and any supplement to the Environmental Statement prepared in response to these consultations (case study 2.10).

*      In the Russian Federation, EIA documentation and the results of public discussion about a proposed activity, organised by local government, should be presented by the proponent to the environmental authority (state environmental expertise) for checking and receiving the permit (national legislation).

*      Information about the EIA procedure and the results of proposed activities may be put into the web site of the competent authorities (Finland, case study 2.7; Hungary, case study 2.3).

_________________________

* EIA programme is a programme of investigations, which should be carried out for preparing EIA report.

2.2.         Providing an opportunity for the public in an affected Party that is  equivalent to that provided to the public in the Party of origin

          According to the Convention, the affected Party must express an interest in participating in the EIA procedure of the Country of origin, following notification. If this interest is expressed, Article 2.6 of the Convention states that the Party of Origin shall provide opportunities for the public of the affected Party to participate in the EIA process that are equivalent to those provided to the public in the Party of origin.

The Convention does not define what is meant by ”equivalent”. In a given situation it is for the Party of origin to decide what constitutes ”equivalent”. At one level the method of public participation offered to the public in the affected Party might be identical to the provisions afforded to the public in the Party of origin; while at another, different methods may be applied to reflect different circumstances and public needs. The Convention does not specify that the means of public participation in EIA procedure in the Party of origin and the affected Party should be identical - only that the opportunity provided to the public of the affected Party should be equivalent.

How have Parties approached this?   

In general, the case studies (Annex 2) have shown practical examples of how Parties to the Convention have addressed these issues. Some countries have included in their national legislation provisions for participation of the public of an affected Party; others have made arrangements for this through other means, discussed in this section. The case studies have indicated that equivalent opportunities for public participation in EIA procedures in the Party of origin and in the affected Party were often realised in practice (Box 2). In some case studies, the public of the Party of origin and the public of the affected Party were informed about the start of EIA procedure at the same time and more particularly from the very beginning of this procedure.

Another way in which an “equivalent opportunity” was given to the public in an affected Party was demonstrated by the case study of a proposal to construct the Finnish nuclear plant "Loviisa 3" (cases study 2.5). Here the proponent prepared, translated and distributed information about the proposed project and a summary of the EIA programme and EIA report to representatives of the public of both the Party of origin and the affected Party. Information was made available in both the Finnish and Russian languages.

Equivalent opportunities in public participation have also been demonstrated through the case studies as regards time limits for commenting on or objecting to a proposed activity.  The case studies (Box 3) showed that the Party of origin takes responsibility for establishing the time limits for comments by members of the public to be submitted on the proposed activity.  In many of the case studies, identical time limits were established for the public of all concerned Parties. In such cases, it is important to ensure that the available time is not reduced by the time taken for the transmission of documents, or other communications, between Parties.  This is discussed further in section 2.4 below.

Box 2. Case studies, where the public of concerned Parties was informed about the EIA procedure and about the oppor-tunity to take part in this procedure at an equivalent time*

*      The operator of the project (case study 2.1) informed the public of all concerned Parties (Azerbaijan, Georgia, Turkey) about the start EIA procedure and about the possibility to take part in this procedure at the equivalent time – from the very beginning of the EIA procedure.

*      The same situation (informing public of concerned Parties from the very beginning of the EIA procedure) occurred in some joint projects: Bulgaria/Romania (case study 2.2), Italy/Croatia (case study 2.8), Estonia/Finland (case study 2.4) and Finland/Sweden (case study 2.6).

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* it is up to the concerned Parties (both Party of origin and affected Party) to ensure that the public of the affected Party in the areas likely to be affected is informed of the proposed activities

 

However, one should also bear in mind Article 3.8 of the Convention which provides that the Party of origin together with the affected Party shall ensure that the public of the affected Party in the areas likely to be affected is informed of, and is given the opportunity to make comments or objections on the proposed activity. The responsibility therefore lies on both concerned Parties. The authorities in the affected Party will wish to satisfy themselves that sufficient time has been allowed by the Party of origin so that effective consultation with the public in the affected Party can be undertaken.

 

Box 3. Equivalent time limits for commenting on or objecting to a proposed activity for public in the areas likely to be affected in concerned Parties

*      The operator of the project (case study 2.1) established the equivalent time limits (60-day period of public discussion of the project before the permitting procedure and  then  45-90 days during that procedure) for the public of all concerned Parties in Azerbaijan and Georgia according to an Agreement between the Parties.

*      An equivalent time limit (1 month/30 days) was established for the public of both Parties for two joint projects: Bulgaria/Romania (case study 2.2) and Italy/Croatia (case study 2.8).

*      The competent authority of the Party of origin (Estonia, case study 2.4) gave the public of the affected Party (Finland) more time (1 month) for commenting or objecting, than to its own public (2 weeks for the EIA programme; 3 weeks for EIA statement).

*      An equivalent time limit (60 days) was established by the Party of origin (Finland, case study 2.5) for its public and for comments from the affected Party (Russian Federation).

*      Equivalent time limits were established by the Party of origin (Finland) for its public and for the public of the affected Party (Sweden) in two projects: 4 weeks – for EIA programme and 7 weeks - for EIA report (case study 2.6); 6 weeks - for EIA programme and 7 weeks - for EIA report (case study 2.7).

*      An equivalent time limit (10 weeks for initial consultations, and then a further period of 6 weeks to comment on the initial consultation summary and any supplement to the Environmental statement prepared in response to the consultations) was established by the Party of origin (United Kingdom, case study 2.10) for the public of this Party and for receiving comments from affected Parties in case of marine dredging project.

 

2.3. Financing and translation

         The financial aspect is one of the most important aspects of the public participation procedure in transboundary EIA. Financial support for organising this procedure may be necessary to cover the costs of:

(a)    translating the EIA documentation into the language of the affected Party;

(b)   translating the comments and recommendations of the public of the affected Party into the language of the Party of origin;

(c)    disseminating EIA materials (including booklets, brochures) within the affected Party;

(d)   payment for information distributed through, e.g. newspapers, radio, TV, e-mail or Internet;

(e)    organising public hearings and meetings of the public of the Parties concerned; and so on.

Not all of the activities listed above will need to by carried out for every project.  For example, even when countries do not share a common, official language, translation may not always be required if it is agreed that the public in an affected Party are sufficiently conversant with the language of the Party of origin to make it unnecessary.  These are matters on which it is appropriate for the competent authorities in the Party of origin and the affected Party to reach agreement, either in the context of formal bilateral or multilateral agreements or on a case-by-case basis.

As is evident from the case studies (Box 4) the costs of organising public participation projects may vary very considerably from one case study to another, reflecting different economic circumstances and possibly different methods of undertaking the public participation. Moreover, in some cases the figures may not completely represent all of the costs associated with the public participation procedure. Some costs are difficult to quantify - for example additional administration time to deal with competent authorities in an affected Party or translating documents received in the language of an affected Party.

         For many countries the  question is: in a transboundary EIA, where such costs are likely to arise, who is responsible for meeting the costs of participation by members of the public in the affected Party? The Convention itself is silent on the question of costs for translation and other associated costs though the question has been discussed and it has been recommended that the Party of origin should normally meet such costs. In accordance with decision of the Second Meeting of the Parties to the Convention (Sofia, 26-27 February 2001) [12] , in general, the Party of origin is responsible for translation as well as for the cost. According to the Guidance on the Practical Application of the Espoo Convention, the cost of public participation in a transboundary EIA (including the translation) can be covered by [13] :

(a)    the developer (proponent);

(b)   the Party of origin;

(c)    the affected Party;

(d)   an International Financial Institution;  

(e)    a combination of two or more of the above mentioned bodies.

 

Box 4. Assessment of cost of public participation in a transboundary EIA in affected Party according to case studies (Annex 2)

No of case study (in Annex 2)

Party of origin (PO) /affected Party (AP)

Cost for public participation in AP**

Responsibility for meeting the cost of public participation

2.1

Azerbaijan / Georgia*

USD 1,500,000***

Proponent (operator)

 

2.2

 

Bulgaria / Romania*

 

No information

Public hearings – their participants;

Translation – local authorities and joint bodies (PIMU)

2.3

Croatia / Hungary

EUR 16,000

 

Competent authority of AP

2.4

Estonia / Finland

No information

Proponent

2.5

Finland / Russia

EUR 1,500 +

Proponent

+ EUR 500

NGO in AP

2.6

Finland / Sweden

No information

Proponent

2.7

Finland / Sweden

about EUR

8,000 – 10,000

Proponent

2.8

Italy / Croatia*

about
EUR 5,000 – in one country

Proponent
(joint company)

2.9

Kyrgyzstan / Kazakhstan

USD 500

NGO

2.10

United Kingdom / France, Belgium, Denmark, Germany, Netherlands

USD 80,000

 

Proponent

USD 300

Competent authority of PO

 

* all concerned Parties are the Party of origin and the affected Party

** EUR – euro of EC; USD – dollar of USA;

*** this cost included cost of public participation in the second project – South Caucasus Pipeline (gas pipeline), which was planned in the same pipeline route.

 

It may be helpful to consider each of these possible options.

(a) The proponent meets the costs

It is a generally accepted principle of environmental protection that the “polluter pays”. If this were applied in EIA cases under the Convention it would suggest that the responsibility for meeting essential costs should fall to the proponent or to the competent authority in the Party of origin13. 

Analysis of the case studies received suggests that this concept is broadly supported by proponents and also by the competent authorities in the Party of origin. In seven of the ten case studies the proponent accepted responsibility for the financial aspects of public participation in transboundary EIA procedure in Party of origin and affected Party (Box 4).

There is, however, no requirement for this in the Convention. On the other hand, the proponent has an obligation to pay the cost of an EIA procedure in accordance with the national legislation of some countries (for, example, in accordance with Finnish EIA law).

Finnish Act on Environmental Impact Assessment procedure (section 22) states that

“The developer shall answer for the cost of investigating and publishing information on environmental impact and related hearings, and for the cost of translation needed to assess transboundary impact.

In preparing national EIA Regulations this provision of the Finnish EIA Act may serve as a useful example of how legislative provision may be made to provide for costs that may arise in transboundary EIA.

 Unless provided for in national law, it may not be possible to require a proponent to meet the costs associated with public participation in transboundary EIA. In such cases the competent authority will only be able to request the proponent to meet the costs. A good way of resolving costs issues may be bilateral or multilateral agreements between concerned Parties [14] .

Most proponents of major schemes that fall within the scope of the Convention are, however, likely to be aware of their environmental responsibilities and the need to ensure there is an understanding of the activity and its potential effects on all affected Parties. Project proponents should be generally aware that it is in their interests for the successful implementation of their project to reassure the public and affected Parties that appropriate safeguards and mitigation measures have been built into the project.  Project proponents may be expected to work closely with the competent authorities in both Party of origin and affected Party to achieve this result. As analysis of the case studies suggests, they have generally been supportive and have provided for the costs of translation.

In the United Kingdom the proponent of a major marine dredging scheme agreed on a voluntary basis to meet the cost of translating all of the EIA documentation in the languages of five countries that could have been affected by his proposal. He also paid for translation costs to send initial notification letters to all five countries. The estimated cost to the proponent was in the region of US $80,000 (case study 10).

While proponents may agree to meet costs of translation and other costs relating with public participation in a transboundary EIA, there has to be a recognition that they will be unlikely to meet unlimited, unspecified and unnecessary costs. It's important to remember that at this stage the proponent is not guaranteed to be given development consent for the proposed activity. He may agree to meet reasonable costs to improve the likelihood of getting such consent; but equally he will not wish to incur nugatory expense.

(b) The Party of origin meets the costs

If the proponent is unwilling or unable to meet the costs of translation etc. the competent authority in the Party of origin must consider whether it has to meet them. For most projects within scope of the Convention, approval will be subject to a development consent procedure administered by the competent authorities. These procedures may require the proponent to pay an application fee or consent fee designed to offset the administrative, management and legal costs associated with processing the application. Fees will vary from country to country and they may be a fixed rate or variable. However, a common feature may be a wish to recover legitimate costs properly incurred by the competent authority in handling the application.

For transboundary EIA projects, Parties may wish to consider whether there is any need for a scale of charges or fees that is greater than applies to other projects without transboundary effects. It will be for Parties to consider whether or how this could be done and whether a ceiling on fee levels should be imposed so that a proponent would have certainty about costs or whether costs would be chargeable to the proponent on cost recovery basis. Whichever method is used it is important that costs are properly controlled to reflect only those that are essential to the procedure of public participation in a transboundary EIA and that the funding arrangements are transparent.

(c) An affected Party meets the costs

It may be unlikely that an affected Party will be asked to meet costs arising from its decision to take part in the EIA procedure for a project originating in another country that is likely to have significant environmental effects in the affected Party. It is more likely that the costs associated with public participation will be met by the Party of origin, as recommended by the Meeting of the Parties12. However, in exceptional circumstances it may be necessary if no other source of funds is available. And though it may be unexpected and unwelcome, it may not be wholly negative.

Taking responsibility for these costs means that the affected Party assumes control of the procedure. Since it is meeting costs that would normally be met by the Party of origin, the affected Party will be able to argue for extensions of time allowed for consultation to ensure adequate translation of documentation, if required, and to ensure adequate public consultation with members of the public in the affected Party. Within the time scales agreed with the Party of origin, it can control the procedure, ensuring that the public participation for the project is at least as comprehensive as that set for projects authorised under its own national procedures. If these are better than those of the Party of origin this may be an advantage.

Nor need it be expensive if the only costs in the affected Party are incurred in advertising the development and giving details of where to find details of the EIA documentation and where and how to make comments or objections.

In providing comments to the Party of origin, an affected Party that had to meet its own costs may feel under no obligation to submit its comments in the language of the Party of origin. 

In one case study under consideration (a multipurpose hydropower system on the river Drava, near the border between Croatia and Hungary, case study 2.3) the summary of the environmental impact study (sent in English) and relevant parts from the whole documentation concerning the transboundary impacts and the statement of the competent authority of the party of origin were translated by the competent authority of the affected Party.

(d) An  International Financial Institution meets the costs

International Financial Institutions (IFIs) generally would not be responsible for directly undertaking public consultation or covering the costs of it for a proposed project.  Most IFIs have environmental procedures and policies that require that Environmental Impact Assessment (EIA), including public participation, is undertaken before they will take a decision whether to finance projects that have the potential for significant environmental impacts (see, for example, environmental policy and procedures of the European Bank of Reconstruction and Development (www.ebrd.com/about/enviro/index.htm )).

Although IFIs may not directly provide funds for the public consultation, they do play a very important role in benchmarking against international standards and increasing the expectation of the public to have adequate information and opportunities for participation in EIA procedure. Some IFIs, such as EBRD, have specific commitments to the Espoo Convention in their policies; others have commitments on Safeguard Policies on International Waterways, such as the World Bank Group. Any project seeking IFI financing will need to ensure that their planning process includes provisions to meet the relevant standards.

(e) A combination of two or more of the above mentioned bodies

There may also be occasions, for example when it is intended that transboundary projects such as roads and bridges will be jointly proposed and executed, when a Party is both Party of origin and affected Party. In such cases the concerned Parties will probably develop a joint management team to develop and oversee the project and the relevant EIA procedures. Given the circumstances it is likely that each Party will simply assume responsibilities for public participation as determined under its own national EIA procedure.

But specific arrangements may also need to be made to ensure that members of the public in all affected countries have access to a single EIA report that provides information about the effects of the whole of the project and proposed mitigation measures. There may also need to be arrangements to ensure an exchange of information so that the decision-makers are fully aware of the views expressed by the public on the other side of the frontier.

In the case of the  project to construct  a bridge over the river Danube between the cities of Vidin in Bulgaria and Calafat in Romania (case study 2.2),  the participants from relevant authorities in both countries, from NGOs and from the concerned public paid the costs of participation in the hearings themselves. The translation of the documentation was organised by joint Project Implementation and Management Units, which were established in the structures of the competent authorities of both countries as a result of agreement between the Governments. The local municipalities in each country covered the costs of the organisation and translation into Romanian and Bulgarian languages in the public hearings.

Other means of funding are also possible on an ad hoc basis.  For example, in the case study of Nuclear Power Plant “Loviisa-3” in Finland (case study 2.5) the proponent met the cost of translation and publishing the EIA booklets in the language of the affected Party, and an NGO of the affected Party met the cost of dissemination of this booklets through the public of the affected Party and of receiving their comments.

It is important to emphasise that not every development will need a complex public inquiry or a series of public meetings. But it is essential that public participation is carried out effectively, in particular if these are not features of the national EIA procedures in the concerned Parties. In such cases the cost of public participation may be very small, especially in comparison with overall budget of the proposed activity, but it is recommended to include cost of public participation in the budget of this activity.

        It may be recommended that the proponent of an activity should have financial obligations for organising public participation in Party of origin and in affected Party, including payment for translation and dissemination of EIA materials for the public.

A key issue in effective public participation in a transboundary EIA procedure is the availability of adequate information about the proposed activity, its likely effects on the environment and the measures proposed to mitigate them. While it may not always be necessary, a good and timely translation of the EIA documentation into the language of the affected Party will greatly facilitate meaningful involvement in the EIA procedure of the authorities and members of the public in the affected Party.

On the other hand a poor translation may impede the process if in translation key information is "lost" or inadvertently misrepresented. Given the detailed, technical nature of some environmental reports this may occasionally happen. Difficulties with translation may never be entirely eliminated but they may be reduced if the proponent responsible for carrying out the EIA ensures the documentation is written in clear and easily understandable language.

Those responsible for organising public involvement in a transboundary EIA procedure should also pay special attention to preparing relevant EIA documentation for the public of concerned Parties in language that is clear and understandable. This is especially the case when preparing summary documents, such as the non-technical summary of EIA documentation. For many people, these summaries will be all that they will have time, or take trouble, to read. It is therefore important that summary provides the essential information and is presented clearly and concisely, avoiding language that may create difficulties in translation to another language.

Responsibility for translation is a particular case of a general responsibility for financial aspects of the procedure of public participation in a transboundary EIA. Case studies indicated that the proponent usually assumes responsibility for financial aspects, such as translation of transboundary EIA materials (Box 4). In the case of joint projects of two Parties, payment for the translation may be done by joint bodies or joint private firms of these Parties. This was done in the case of the bridge over the river Danube between Bulgaria and Romania (case study 2.2) and the Italian-Croatian under-sea gas pipeline (case study 2.8) respectively.

In the majority of case studies presented, the summary of the EIA documentation was translated for the public of affected Parties (case studies 2.1, 2.3 - 2.5, 2.7, 2.8, 2,10). The Party of origin or the proponent may decide to translate either all or the majority of the EIA documentation. At the very least, the non-technical summary of EIA documentation should be translated, and additional information may be provided to the public of the affected Party upon request.

Another possible way dealing with the issue of translation is the possibility for the full EIA documentation to be presented by the Party of origin or the proponent to the public of the affected Party upon request without translation. This was the case in the Finnish nuclear power plant “Loviisa-3”, the proponent presented the full EIA report in the English language upon the request of an NGO of the affected Party (case study 2.5).  This is likely to be helpful in cases where the Parties share a common working (or official) language and the documentation exists in this language.

It would be useful, if financial responsibility for organising public participation in affected Party, including volume of translated materials, responsibility for translation, number of copies were determined in the first stage of consultation or/and fixed in the agreement between concerned Parties.

 

2.4. Notification of affected Party and public of Party of origin. Timing

Article 3.1 of the Convention requires the Party of origin to notify the affected Party as early as possible about a proposed activity that is likely to have a significant adverse transboundary impact. It shall do this no later than when informing its own public about that proposed activity.

Notifications shall be sent to the special Points of contact regarding notification of affected Parties. A list of such points of contact is in the web-site of the Convention (www.unece.org/env/eia/contacts.htm). It is necessary to emphasise that Points of contact regarding notification are not always the same as the national Focal points (www.unece. org/env/eia/focalpoints.htm) which are used only for administrative matters regarding the Convention. Where the contacts are different it may be appropriate to copy the notification to the Focal point for information and to facilitate the procedure.

In terms of the obligations under the Convention, the purpose of the notification is to enable a potentially affected Party to decide whether it wishes to be involved in the EIA procedure of the Party of origin for the proposed activity that is likely to cause a significant adverse transboundary impact (Article 3.3). A notification shall contain, inter alia, information listed in Article 3 of the Convention (Annex 1). In addition, the first Meeting of the Parties of the Convention recommended Parties to use to the extent possible the format approved by this Meeting when transmitting a notification according to Article 3 of the Convention (Decision I/4). Details of this format can be found in the web-site of the Convention (www.unece.org/env/eia/notification.htm).

Neither the notification format nor the Convention specifies a period of time that must be allowed for the affected Party to decide whether it wishes to take part in the EIA procedure. It is for the Party of origin to set a timeframe consistent with its national procedures. But in doing so the Party of origin should recognise that in forming its view on whether it wishes to take part in the EIA procedure, the authorities in the potentially affected Party may wish, or be required by its own national legislation, to consult with regional or local competent authorities, statutory environmental authorities and members of the public. To ensure the affected Party is able to form a considered view, the Party of origin may have to allow a significantly longer period for a response than would normally be allowed in the case of non-transboundary EIA. 

The Estonian-Finnish case study (2.4) is a positive example of how this was done in practice, with the competent authorities in the Party of origin providing a more generous time limit for comment from the affected Party than for the public in its own country (Box 5).

How much additional time for affected Party should be allowed is a matter for agreement between the concerned Parties. But, typically, a Party of origin that allows a 3 weeks period for such consultation under its national EIA procedures might need to allow between 6 and 7 weeks in case of transboundary EIA. This additional time will be required particularly if the Party of origin invites the authorities in the affected Party to make the arrangements and it is to allow for an equivalent period of public participation in the affected Party. The extended period will allow for transmission of documents to the authorities in the affected Party, arrangements for public advertising, an equivalent time period for public participation, and receipt and transfer of comments from the affected Party to the authorities in the Party of origin (Box 5).

 

It is recommended that the notification allows adequate time for consultation within the affected Party’s administration before that Party responds. If it responds positively to an invitation to take part in the EIA procedure, it is recommended that the authority in the affected Party should provide information to the authority in the Party of origin about the way(s) in which public participation may most effectively be carried out in the affected Party.

The case studies revealed that in those cases where the affected Party decided it wished to take part in the EIA procedure the information provided at the notification stage usually contained sufficient information to allow for early discussion with the public of the affected Party on the EIA programme.

Box 5. Time limits established for receiving comments or obligations from public of affected Party on EIA programme and on EIA report

 

 

No of case study (in Annex 2)

 

 

Party of origin (PO) / Affected Party (AP)

Time limits established for receiving comments or obligations from public of affected Party on:

EIA programme,

day

EIA report,

day

2.1

Azerbaijan / Georgia / Turkey*

60

45-90

2.2

Bulgaria / Romania*

 

30-31

2.3

Croatia / Hungary

 

30+30 (in addition)

2.4

Estonia / Finland

  30 /

14**

  30 /

21**

2.5

Finland / Russia

60

60

2.6

Finland / Sweden

28 (4 weeks)

49 (7 weeks) + 42 (extension)

2.7

Finland / Sweden

42 (6 weeks)

49 (7 weeks); 28 – for new alternative

2.8

Italy / Croatia*

 

30***

 

2.10

United Kingdom / France, Belgium, Denmark, Germany, Netherlands

 

70 (10 weeks) for initial consulta-tions + 42 (6 weeks) to com-ment additional materials

 

* all concerned Parties are the Party of origin and the affected Party

**    for public of Party of origin;

*** time limit is interpreted in a flexible way; all comments were taken into account if they were submitted before final decision

        

The term  as early as possible”, which is used in the Convention, was clarified by the analysis of the case studies. They showed that in some cases as early as possible” may mean the very beginning of the EIA procedure (Box 2). The participation of the public of affected Parties was most effective in cases where it began during discussion of the EIA programmes, and  then continued as the results of EIA procedures or EIA reports were discussed. Precisely this form of public participation was realised in the Estonian-Finnish (case study 2.4), Finnish Russian (case study 2.5) and Finnish-Swedish (case studies 2.6 and 2.7) projects (Box 5). The operator of the Azerbaijan-Georgian-Turkish project (case study 2.1) also notified the public of the affected Parties at the start of the EIA procedure. 

In all the case studies received, notifications were sent to the competent authorities of affected Parties before final decisions about proposed activities were made so that they had the opportunity to inform members of their own public.

The extent to which there is scope for involving the public of the Party of origin in the screening and scoping stages of the EIA procedure for a specific project depends on the provisions within the national EIA legislation and procedures.  If these are provided for in national legislation, the stage at which they begin in the Party of origin may provide a suitable moment for "early notification" of the proposed activity to the public in the affected Party.

The concerned Parties shall provide reasonable timeframes for the public to participate in the different phases of transboundary EIA, allowing sufficient time for informing the public and for the public to prepare and participate effectively during the transboundary EIA procedure.

There are two main options for determining reasonable time limits for the response of the public in an affected Party:

*            Timing should be determined as a result of preliminary consultations of the competent authorities of concerned Parties;

*             Timing may be based on timing of national EIA procedures of concerned Parties.

As discussed earlier (paragraph 2.2 of this guidance), the Convention states (Article 2.6) that the Party of origin must ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin. In practical terms this means that unless they communicate directly with members of the public in the affected Party, the authorities in the Party of origin will need to allow additional time to provide for transfer of documents to the authorities in the affected Party and for these authorities to communicate information to the public likely to be affected; and of course for a similar additional period after expiry of the period of time allowed for public participation in the Party of origin for receiving comments or objections from the public of affected Party (case study 2.5).

            Usually in practice (Box 5), the time limits established for receiving the comments or objections on the EIA programmes (about 30-40 days), do not differ very much from the time limits, established for receiving such responses on EIA reports (about 40-60 days). Shorter time limits (about 2 weeks for EIA programme and 3 weeks for EIA report) may be established for those countries, which have good communication and similar national EIA systems (see, for example, case study 2.4).

 

It may be recommended that:

*     The concerned Parties should provide for early public participation in a transboundary EIA, when all options are open and effective public participation can take place;

*     Time-limits for notifying and for receiving the responses of the public from the affected Party should be determined as a result of preliminary consultations of the concerned Parties or fixed in bi- or multilateral agreement  of these Parties;

*     Usually such time limits for receiving the public responses may be about 30-40 days - for EIA programme and about 40-60 days – for EIA report (Box 5).



2.5. Joint responsibility of concerned Parties for participation of the public of the affected Party in a transboundary EIA

         According to Article 3.8 of the Convention, the concerned Parties (Party of origin and the affected Party) shall ensure that the public of the affected Party in the areas likely to be affected:

(a) be informed of the proposed activity, and

(b) be provided with possibilities for making comments or objections on the proposed activity, and

shall be responsible for the transmittal of these comments or objections to the competent authority of the Party of origin, either directly to this authority or, where appropriate, through the Party of origin.

This section of the guidance develops the obligation of the Party of origin to inform the affected Party about a proposed activity (paragraph 2.4 of the guidance); but if the affected Party responds affirmatively to the notification, there is then a joint obligation of all concerned Parties for the participation of the public of the affected Party in a transboundary EIA. The concerned Parties are expected to make the practical arrangements for such public participation. Different aspects of such arrangements which were made in practice appear in the case studies (Box 6).

The case studies demonstrated that for effective participation, the public must be able to understand the information, and this leads to the conclusion that the documentation should be available in a language which is understandable to them as discussed in section 2.3. This could require translation of the documents, or relevant parts of documents, or/and non-technical summaries of documents. It means that the same information should be provided to the public of the affected Party, as to the public of the Party of origin.

The following recommendations are made for the concerned Parties:

(a)    the Party of origin should be responsible for the translation (into the language(s) of the affected Party(ies)) of all the documents which are disseminated within the procedure of a transboundary EIA, for providing the information and for receiving the comments;

(b)   if the Party of origin distributes the information this should happen in co-operation with, or according to arrangements agreed with the affected Party; affected Parties may decide to handle the distribution of information via particular authorities or nominated organisations; the concerned Parties could distribute the information to the public by means of the mass media, e-mail, the Internet, public hearings or by other appropriate way;

(c)    the Party of origin and the affected Party should make arrangements for collecting the comments from the public, and sending them to the Party of origin; there may be a need for translating the comments of the public so that the competent authority of the Party of origin can understand these comments;

(d)   if costs are a problem, a Party of origin may be able to recover the cost from different sources, for example the proponent of the activity.

It should be strictly recommended that, if the public of the affected Party sends its comments or objections to the competent authority of the Party of origin, it should also send copies of these comments or objections to the competent authority of the affected Party. This recommendation is made because only states are Parties to the Convention, and the competent authorities of the Party of origin and affected Party are responsible for carrying out the procedure of transboundary EIA. That is why the competent authorities of both Parties - Party of origin and affected Party - should have all information dealing with this procedure (including the comments or objections of the public of the affected Party).

It should be mentioned that the Convention provides that the Party of origin is responsible for presenting the EIA material to the affected Party. There may be situations when the Party of origin receives a response from the affected Party, but the Party of origin does not know whether the views of the public of the affected Party are reflected in this response. It is however recommended that the Party of origin should be in close contact with the affected Party  as it has an interest that  public participation  took place.  This derives from

 Box 6. The concerned Parties have joint responsibility for

             participation of public of affected Party in a transboundary

             EIA and they have to work together for this

*      The operator (one of the proponents of the project, a transnational corporation) of the international oil pipeline Baku-Tbilisi-Ceyhan (Azerbaijan-Georgia-Turkey, case study 2.1) made equivalent arrangements for organising public involvement in transboundary EIA procedure in all the concerned Parties by:

·        informing the public about the start of the EIA procedure;

·        advertisements in local, regional and national newspapers;

·        informing the public by post, TV and radio;

·        posters along the pipeline route;

·        organising public hearings  and meetings with the proponent;

·        publishing and dissemination booklets with EIA information;

·        organising about 30 points of contact with the public along the pipeline route.

*      The proponent of the construction of the nuclear plant “Loviisa-3” (private firm from Finland, case study 2.5) translated, published and sent to the affected Party (to the competent authority and to the NGO responsible for organising public involvement into transboundary EIA) the amount of EIA material (booklets) which had been requested in the language of the affected Party (Russian).

*      The proponent of dredging for aggregates in the English Channel/La Manche (private firm from United Kingdom, case study 2.10) translated EIA material into the languages of the affected Parties (Danish, French, German and Dutch) and spent about USD 80,000 for this purpose.

*      The parties (Bulgaria and Romania) of a joint project – bridge over Danube river  (case study 2.2) - organised a special unit for the implementation of the project, including work with the public of both Parties (translation of material into the languages of the concerned Parties, organising public hearings and informing, receiving comments and objections of the public).

*      The Party of origin (Finland) invited the public of the affected Party (Sweden) to participate in public hearings on proposed activities (case studies 2.6).

*        Usually the proponent from the Party of origin met the cost for translation of EIA material and its publishing (often as booklets) for the public of the affected Party (Box 4).

Article 3.8 of the Convention, that clearly puts the burden on ensuring public participation on the concerned Parties, i.e, Party of origin and affected Party.

2.6.   Distribution of the EIA documentation and submission of public of affected Party  

         The Convention lays down (Article 4.2) that:

*      The Party of origin shall furnish the affected Party, as appropriate through a joint body where one exists, with the EIA documentation.

*        The concerned Parties (the party of Origin and the affected Party) shall arrange for:

(a)           distribution of the EIA documentation to the authorities and the public of the affected Party in the areas likely to be affected, and

(b)          for the submission of comments to the competent authority of the Party of origin, either directly to this authority or, where appropriate, through the Party of origin, within a reasonable time before the final decision is taken on the proposed activity.

This suggests that:

*        The Party of origin should transmit the EIA documentation to the affected Party and receive comments;

*        The Party of origin usually should be responsible for the translation of the EIA documentation, of the comments received from the affected Party and of all the documentation which the concerned Parties sent each other during the transboundary EIA procedure;

*        The Party of origin and the affected Party should specify the arrangements for distributing the EIA documentation to the authorities and the public of the affected Party in the areas likely to be affected, and collect these comments and transmit them to the Party of origin or its competent authorities.

       Such very important practical aspects regarding public participation in transboundary EIA as financing and translation, and their implementation in practice, were discussed in section 2.3 of the guidance. We would like to repeat that financial responsibility and translation of EIA documents by the Party of origin is good practice but is not a requirement of the Convention. But analysis of received case studies suggests that this concept is broadly supported by the proponents (Box 4) or it may be requirement of national EIA legislation (for, example, in Finland).

       Different methods of informing the public, distributing the EIA documentation and receiving public comments may be recommended for effective public participation in a transboundary EIA (Box 7). These recommendations were developed from analysis of good practice in applying the Convention (case studies, Annex 2) and some experts’ assessments. It is obvious that the effectiveness, benefits and/or disadvantages of each method or combination of methods depends on the circumstances of the particular projects.

 

Box 7. Methods used for effective public information (I),
distribution of the EIA documentation (D) and
receipt of comments from the public(R)

(the methods were ranged by mean of expert assessments according to the ratio efficiency/cost)

1) development of web sites or web-pages with EIA information on the Internet with proposals on public participation and used for receipt of comments from the public (I, D, R);

2) dissemination of EIA information and receipt of responses from public by e-mail (I, D, R);

3) notification of stakeholders in the region likely to be effected (owners, public, NGOs) and national and international NGOs by post with request to answer a Questionnaire – (I, D, R);

4) organising points of contact with the public in and around the site of the proposed activity and its possible effects  (I, D, R);

5) organising public hearings and public meetings with representatives of proponent and authorities and preparing reports of such meetings (I, D, R);

6) publishing and disseminating booklets and other materials with EIA information with request to answer a Questionnaire – (I, D, R);

7) advertisements in local, regional and national newspapers (I) and (I,R) if the request for public response was done;

8) informing by  TV and radio (I) and (I,R) if the request for public response was done;

9) posters in and around the site of the proposed activity and its possible effects (I) and (I,R) if the request for public response was done.

A combination of these methods depending on the circumstances of the particular project may be most effective.

Because the Convention deals with relations between Parties (i.e. States), it does not set out the practical information about the process of public participation, which is necessary for effective public participation. Some Parties may have national laws containing these information requirements, in some cases derived from the Aarhus Convention, or from the EU EIA Directive. Box 8 lists, first, the Convention’s requirements for the content of the EIA documentation   and,   second,   recommendations  derived  from  regulations  of  the  Russian

Box 8. The content of the EIA documentation and recommenda-tions on the information which should be provided to the public in order to organise effective public participation

Content of EIA documentation which should be provided to the public in accordance with the Convention (Appendix II):

(a) a description of the proposed activity and its purpose;

(b) a description, where appropriate, of reasonable alternatives (for example, locational or technological) to the proposed activity and also the no-action alternative;

(c) a description of the environment likely to be significantly affected by the proposed activity and its alternatives;

(d) a description of the potential environmental impact of the proposed activity and its alternatives and an estimation of its significance;

(e) a description of mitigation measures to keep adverse environmental impact to a minimum;

(f) an explicit indication of predictive methods and underlying assumptions as well as the relevant environmental data used;

(g) an identification of gaps in knowledge and uncertainties encountered in compiling the required information;

(h) where appropriate, an outline for monitoring and management programmes and any plans for post-project analysis; and

(i) a non-technical summary including a visual presentation as appropriate (maps, graphs, etc.).

Practical information for organising effective public participation:

(j) the name and address of the proponent;

(k) the name and address of the competent authority that will make the  decision on proposed activity;

(l) location of the proposed activity:

(m) an address in the  PO / AP where the EIA documents relating to the proposed activity may be inspected,  and the latest date on which they are available for inspection;

 (n) whether copies of the EIA documentation, including the non-technical summary, are available and if so whether they are free;

(o) if there is a charge, the amount of the charge;

(p) the address to which comment or objections about the proposed activity and/or EIA documentation should be made and

(q) the final date for such comments.

Federation and the United Kingdom. It should be mentioned that examination of the documents - i.e. the opportunity to study the EIA documentation and to make notes - should be free of charge. This obligation can be met through the establishment of a convenient location where the information can be kept in an accessible form and consulted at reasonable hours. As regards copies or other photocopying services the authority can impose reasonable charges consistent with the main aim of providing for effective public participation.

2.7. Final decision and results of public participation

       The Convention states (Article 6.1) that the Parties shall ensure that, in the final decision on the proposed activity, due account is taken of:

a) the outcome of the environmental impact assessment, including the EIA documentation,

b) the comments thereon received pursuant to Article 3.8 and Article 4.2, and

c) the outcome of the consultations as referred to in Article 5.

The comments received pursuant to Article 3.8 should include any comments or objections from the public of the affected Party on the proposed activity. The comments received pursuant to Article 4.2 should include any comments from the public of the affected Party on the EIA documentation.

The comments or objections of the public of the affected Party on the proposed activity and on the EIA documentation, resulting from the consultation should be taken into account in the final decision on the proposed activity

This provision is implemented in practice by different ways.

In Azerbaijan and Georgia the public was informed about this by the proponent and by the competent authorities of these countries (case study 2.1). In the case of the bridge over the Danube (case study 2.3), the Bulgarian Ministry of Environment and Water (competent authority of one of concerned Party) reflected in the decision on the preliminary EIA the results of public consultations.

The information on the EIA decision was published in a national Bulgarian newspaper and copies were given to the proponent (Ministry of Transport and Communications of Bulgaria), the local municipality and the authorities concerned. The decision was translated into English and was sent to the Romanian Party through Project Implementation and Management Units (PIMU) which were established within the administrative  the structures of the competent authorities of both Parties.

In accordance with the national Finnish EIA law, the co-ordination authority must include a summary of views expressed by the public on its statement on the EIA programme and EIA report (case study 2.6). The final decision is given separately and later, pursuant to other Acts, which stipulate the announcement of the final decision. The authority, which grants the permit, will announce the final decision. The competent authority will send the final decision to the point of contact of Finland, who will send it to the point of contact of the affected Party.     

According to the national law of Croatia and of Italy (case study 2.8) the proponent has the obligation to make publicly available the decision for public of its own country.

In the United Kingdom (case study 2.10), the procedure is specifically designed to ensure that views expressed by the public are taken into account. UK EIA legislation requires the competent authority to publish decisions and in doing so to state that in reaching a decision it has taken the environmental information into account. Environmental information includes representations made the public. The proponent prepares a summary of all comments received and of any discussions held in an effort to resolve concerns that may have been raised. As necessary a supplement to the Environmental Statement is also prepared. These documents are copied to all those who commented, with a period of 6 weeks allowed for comments to these documents. The final decision should be made available to the authorities of the affected parties as required under Article 9 of the amended EU EIA Directive and of Article 6.2 of the Convention.

The second meeting of the Parties of the Convention adopted decision II/1 «Bilateral and Multilateral Cooperation» (www.unece.org/env/eia/mop.htm) where it was recommended that if (affected) individuals of the affected Party are given a right to appeal against the decision, extra information on these possibilities may be necessary, for instance in a special information brochure (ECE/MP.EIA/4, paragraph 68). Paragraph 2.10 of the Guidance on the Practical Application of the Espoo Convention (unece.org/env/eia/guidance/guidance.html ) recommended that the information about such a right of appeal should be given in an annex to the decision.

3. Recommendations on increasing effectiveness of public participation in a transboundary EIA

            Analysis of the case studies shows that there are some aspects of public participation in a transboundary EIA, which are not described in the Convention directly, but which may increase the effectiveness of public participation in this procedure.

3.1. Preliminary work with potential participants

         Projects that have transboundary effects generally have to be determined within the legal framework established for EIA within the Party of origin. The principles of good administration require that applications are dealt with efficiently and that decisions are taken as quickly as possible. Usually there are time constraints within which a decision is expected to be taken. Consequently the procedures for transboundary EIA and public participation will also have limited time scales. To maximise the time available, and to ensure an effective procedure for transboundary EIA, the following preliminary measures or activities may be useful:

a) to establish effective relations with national focal points of the Convention (www.unece.org/env/eia/focalpoints.htm) and with points of contact regarding notification (www.unece.org/env/eia/contacts.htm) in their own countries for a clear understanding of how they should interact in cases of transboundary EIA;

b) to inform potential proponents of projects with possible transboundary effects about the need for transboundary EIA with public participation according to the provisions of the Convention;

c) to recommend to potential proponents of projects with possible transboundary effects to include in the budgets of these projects adequate resources for financing measures aimed at public participation in a transboundary EIA;

d) to recommend to potential proponents of an activity with possible transboundary effects to be in contact with the competent authorities from the very beginning of the EIA procedures for these projects so that they have early knowledge of whether these projects requires a transboundary EIA with participation of the public of the affected Party;

e) to establish effective relations with relevant authorities involved in transboundary EIA procedures in their own countries;

f) to understand which NGOs and groups of the public may be interested in and have relevant skills for participation in transboundary EIA; to establish relations (by e-mail, fax, telephone and so on) with these NGOs and groups of the public.

            It would be useful if Parties (competent authority, points of contact regarding notification (www.unece.org/env/eia/contacts.htm) and focal points (www.unece.org/env/eia/ focalpoints.htm)) were to establish effective relations with their counterparts in potential affected Parties (neighbouring countries). These would help promote and develop an understanding of the legislative background and practice of carrying out national procedures of EIA in potential affected Parties. In preparing for future transboundary EIAs it could be very useful to receive information about the criteria used for identifying activities that should be subject to EIA, time scales for EIA, the manner in which public participation is organised, methods of informing the public and collecting public comments and, objections and so on.         Preliminary work by the competent authorities of Finland (Party of origin) and the Russian Federation (affected Party) in the planning of the Nuclear Power Plant ”Loviisa-3” may be taken as an example of good practice (case study 2.5). Contacts between the relevant authorities were established before the start of this project. The affected Party nominated an organisation (NGO) which agreed to be responsible for organising the future involvement of the Russian public into the transboundary EIA procedure. That is why the comments of the public of affected Party were received by Party of origin and proponent on  time (within the 60 days time limit  established by Party of origin).

         It would be useful if competent authorities of concerned Parties would develop a special web-page on their existing web-site dealing with transboundary EIA and would inform all potential participants in EIA procedures in its own country and in potential affected Parties about this. Such web pages may contain information about proposed activity with likely transboundary effects and the modalities for public participation in transboundary EIA (timetable, points of contact, sources of additional information, public hearings and so on).

            An order of a Russian competent authority issued in summer 2003 [15] may be taken as example of moving in this direction. According to this order, information about all applications received for expertise (ñhecking) and permission by federal and regional bodies of state environmental expertise should be presented on the web-site of these bodies of the Ministry. These would include activity, which may have transboundary effects. Having such information, the public may decide whether to participate in these projects.

3.2. Contacts with potential affected Parties:
       Bilateral and multilateral agreements;
       Joint bodies

         Bilateral or multilateral agreements concerning transboundary EIA between potential affected Parties may be a practical way to overcome difficulties due to differences between legislation and EIA practice of the different Parties.

         The document «Bilateral and multilateral cooperation in the framework of the Convention on environmental impact assessment in a transboundary context» which was approved by the Second meeting of the Parties of the Convention as Decision II/1 “Bilateral and multilateral cooperation” (ECE/MP.EIA/4) has a special chapter “Information and public involvement” which may lead to better understanding of different aspects of public involvement in transboundary EIA.

         In regions where direct communication between countries is politically sensitive or difficult, there can often still be co-operation on environmental issues.  In these circumstances, it is sometimes more effective to use a third party or joint body to help with the notification.  For example, transboundary impacts are often in bodies of water with several littoral states.  UNEP’s Regional Seas programme has set up structures around the world that might be useful for communication in transboundary EIA (e.g., Black Sea Environmental Programme and Caspian Environment Programme).

            In addition to the items mentioned in the document Bilateral and multilateral cooperation(ECE/MP.EIA/4), it may be recommended to include in bilateral or multilateral agreements such details of public involvement as:

*             responsibility for organising public participation;

*             time scale;

*             financial aspects of public participation;

*             translation of materials for the public;

*             methods of informing the public and receiving their comments;

*             volume and format of EIA materials presented to public;

*             methods of informing the public about final decision on a proposed activity and so on.

         Parties are recommended to establish where it is appropriate, joint bodies for better management of transboundary EIA procedure, and, in particular, public participation in this procedure. These joint bodies may be useful and important in regions where joint EIAs are common. It would be useful to provide a status for such joint bodies, which would permit them to receive financial support for public participation in transboundary EIA from project proponents.

         In the case studies presented there was an example of such co-operation in the joint project dealing with the construction of a bridge over the Danube between the cities of Vidin in Bulgaria and Calafate in Romania (case study 2.2). A special agreement was signed between the Governments of Bulgaria and Romania for construction of the bridge. This agreement included obligations on joint EIA. A Joint Working Group on the environmental problems was established to co-ordinate the environmental procedures. The Project Implementation and Management Units (PIMU) were established within the administrative structures of the competent authorities for better implementation of the project, including public involvement. Establishment of these bodies improved matters in relation to public participation, for example, PIMU organised translation of the EIA documentation.

3.3. Organising points of contact for the public

         One of the first tasks of the Parties of the Convention is to establish effective working national points of contact for notification (www.unece.org/env/eia/contacts.htm) and focal points (www.unece.org/env/eia/focalpoints.htm ) which have a different obligations in the application of the Convention. Some Parties to the Convention decided to have one point, which serves as the point of contact for notification and as the focal point for administrative matters. This may lead to a useful saving of time during the EIA procedure.

         In practice it might also be useful to establish a point of contact for each specific project for the public, so they would always be communicating with someone knowledgeable about the proposed project, and thereby increasing the effectiveness of public involvement overall. Such a point of contact may be a person or a division of the competent authority or other authorities, private firm, institution, NGO and so on. In the case study of the oil pipeline Baku-Tbilisi-Ceyhan (case 2.1) the proponent invited a private firm to organise public participation in transboundary EIA in two countries (Azerbaijan and Georgia) and used its own special division for work with the public.

         In the case studies there were two situations where NGOs were invited by the ñompetent authority to be responsible for organising public involvement in transboundary EIA of Nuclear power plant ”Loviisa 3 (case study 2.5; Finland-Russia) and of a paper mill (case study 2.9; Kyrgyzstan- Kazakhstan). In these case studies, NGOs worked effectively, and they did not ask for financial support from the authorities of the affected Parties. The cost of these actions was relatively small (about USD 500, Box 4). The main benefit of establishing such points of contact with the public is in fact that they can act quickly and effectively so that the procedure is not unduly delayed; comments of the public of the affected Parties were received and transmitted to the Parties of origin on time.

It may be recommended that a special body or a special person should be created or nominated on behalf of the authorities to co-ordinate public participation in transboundary EIA. At the same time, final responsibility lies with state authorities.

3.4. Role of the public

The public should participate fully in transboundary EIA in order to make both the process of environmental decision-making on projects with transboundary effects and the final decisions on such projects more transparent and legitimate. The public should organise itself for effective participation in a transboundary EIA by:

(a) developing contacts and co-operation with relevant local, national, foreign and international NGOs and experts, that may be involved in transboundary EIA;

(b) organising and participating in activities of national and international public networks and public centres on EIA;

(c) taking part in education and training programmes on EIA;

(d) supporting the dissemination of information about the provisions and the implementation of the Convention, case studies, and other relevant information dealing with transboundary EIA.

When the public of a Party considers that it would be affected by a significant adverse transboundary impact of a proposed activity, and when no notification has taken place in accordance with the provisions of the Convention (Article 3.1), the public of the affected Party should be able to apply to its competent authority to enter into a process of discussions with the competent authorities of the Party of origin on whether there is likely to be a significant adverse transboundary impact according to the provisions of the Convention (Article 3.7). In this situation, if the public of a Party considers that it would be affected by a significant adverse transboundary impact of a proposed activity, it may request the competent authorities of the concerned Parties to allow public participation in a transboundary EIA procedure under the provisions of the Convention, and in accordance with this guidance. In these cases the Parties concerned are encouraged to include the public that made the request in the procedure of transboundary EIA.

The public should be encouraged to take part in transboundary EIA together with representatives of the competent authorities of the concerned Parties, the public of other countries on a basis of partnerships, co-operation and objectivity.

4. Final provisions

4.1. Implementation of the guidance

The Parties, the competent authorities, the public and the secretariat of the Convention are encouraged to adopt the necessary measures to put this guidance into practice. These include the establishment of a clear regulatory framework providing procedural and institutional mechanisms and proper compliance programmes.

The guidance should be made available by putting it on the Convention's web site.

Nothing in this guidance shall be construed as diminishing any of the rights of public participation in environmental impact assessment or in other environmental decision-making processes which are or may be guaranteed under the laws of any Parties or under any agreement to which it is a Party.

The provisions of this guidance shall not affect the right of a Party to maintain or introduce measures providing for more extensive public participation in environmental impact assessment than recommended by this guidance.

4.2. Review

The Parties, the competent authorities and the public (at national, regional and local levels), and the Secretariat of the Convention are encouraged to collect and disseminate information dealing with any aspects of public participation in transboundary EIA. This information will be used for further developing and reviewing this guidance.

The Parties should consider the extent to which this guidance has been implemented, and review it at their Fourth meeting on the basis of national reports to be provided to the Secretariat of the Convention by November 2006 at the latest.

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[1]  Declaration of the United Nations Conference for Environment and Development (UNCED) at Rio de Janeiro, 1992.

[2] Agenda 21, item 23.2, Adopted by the United Nations Conference for Environment and Development (UNCED) at Rio de Janeiro, 1992.

[3] hereafter referred to as ”the Convention”. Full text of the Convention is available on the UNECE website (www.unece.org/env/eia) and in Annex 1 to the Guidance.

[4] For brevity, the abbreviation ”transboundary EIA” will be used henceforth instead of the term ”environmental impact assessment in a transboundary context”; other terms in the guidance have the same sense as in the Convention.

[5] Known as the “Aarhus Convention”, 1998 ( www.unece.org/env/pp), entered in force in 2001.

[6] Text of the SEA Protocol is available on the UNECE website (www.unece.org/env/eia/sea_protocol.htm), see an addition document ”Public participation in strategic decision-making” (MP.PP/WG.1/2003/5 of 26 August 2003) prepared by Secretariat in consultation with Bureau to the Convention.

[7] Guidance on the Practical Application of the Espoo Convention (http://www.unece.org/env/eia/guidance/ guidance.html), developed by Finland in collaboration with Sweden and the Netherlands.

[8] In references such as ”Article 2.2” the first number refers to the Article of the Convention and is followed by the paragraph number in this article; in this particular case - Article 2, paragraph 2 of the Convention.

[9] They may also need  to reflect, as appropriate, the provisions of the UNECE Convention on access to information, public participation and access to justice in environmental matters (the Aarhus Convention, 1998) for Parties having also ratified that Convention; and the EU EIA Directive (Directive 85/337/EEC, as amended by Directive 97/11/EC and by Directive 2003/35/EC) for Member States of the EU.

[10] Definition of consultation given by the United Kingdom High Court.

[11] Member States do not need to apply Directive 2003/35/EC  until June 2005.

[12] Report of the Second Meeting, ECE/MP.EIA/4, Decision II/1 – Bilateral and Multilateral Cooperation, item 90, 7 August 2001.

[13] Guidance on the Practical Application of the Espoo Convention, Finland, Porvoo, Finnish Environmental Institute, 2003.

[14] See the document «Bilateral and multilateral cooperation in the framework of the Convention on environmental impact assessment in a transboundary context», approved by the Second meeting of the Parties of the Convention as Decision II/1 “Bilateral and multilateral cooperation” (ECE/MP.EIA/4), or the section 3.2 of this guidance.

[15] Order of the Russian Federation Ministry of Nature Resources of  01.08.2003 No 683 “On dissemination information about carrying out state environmental review”. The state environmental review included quality control of all EIA documentation.