From 1 January, 2015 changes to the law governing environmental impact assessments (EIAs) come into force.
These changes have been welcomed by non-governmental organisations active in environmental protection, whilst members of the industrial and business communities have sought (unsuccessfully) to have them overturned by presidential veto. Only time will tell how they work in practice, both for the parties and for the administrative agencies and courts.
The upside of the changes is that they allow the general public to influence whether or not permits are granted for activities affecting the environment. The downside is that they will (as the legislation’s sponsor conceded) increase the financial burden on businesses “as a result of the need to submit detailed documentation within the assessment process to determine specific conditions for carrying out an activity with environmental impact”. Although it is hard to completely identify with this statement, the changes are likely to achieve their objective of preventing EC infringement actions against the Slovak Republic.
They are being introduced in response to criticism by the European Commission (in infringement procedure 2013/2034) that the current law does not adequately implement Articles 6, 7 and 9 of the EIA Directive because it creates insufficient ties between the process of assessing proposed activities and the follow-up permit proceedings. The EC considers that this creates space for disregarding the outcome of the impact assessment procedure, and fails to guarantee full exercise of the rights of the concerned members of the public who are parties to the proceedings or who wish to become parties of the proceedings affecting the environment.
There are amendments to the activities (and changes to activities) that require a screening process and EIA. For instance, there will be a mandatory assessment for:
- any change in the proposed activity at or above a certain threshold
- any activity or change in activity which (according to an expert opinion of the state agency competent in the field of protection of nature and landscape) may be reasonably expected to significantly affect, either alone or in combination with another activity, the nature protection areas (NATURA 2000).
Under the new rules, anyone will be able to apply for a decision whether or not an activity or change requires an EIA. This can currently only be done by an applicant, a competent body or an environmental organisation.
Decisions concerning EIAs will also be able to be challenged by more parties (with all the attendant rights) and a wider range of legal remedies will be available. The administrative code will apply to decisions made during EIA screenings and final reports, meaning that they must be the product of an administrative procedure and will be appealable within 15 days. Decisions may be reviewed by court and (where the requirements are met) proceedings may be reopened.
There is a new definition of a ‘member of the public’, who may be a natural or legal person and may be party to proceedings not only in the EIA procedure but also in all follow-up proceedings (such as under the Building Act). Thus, if they submitted a written response to the proposal, evaluation report or final report, or presented justified comments regarding a decision issued in the scoping procedure or appealed a screening decision or a final report, they will fall within the definition of a party to proceedings, automatically making them persons directly affected by the proposed activity or the approval sought for it and will then be a party to the planning, building and occupancy proceedings (as defined by the Building Act), and to other proceedings under special regulations, such as integrated permit proceedings.
To ensure compliance with EU law and other international obligations, members of the public (as defined above and referring to any person, including those who do not have the slightest relation to the activity assessed) will be able to appeal the screening decision and the final report, which has the form of an administrative decision. The amendment also makes both these decisions subject to a judicial review (under s.5 Civil Procedure Code), even though decisions issued in administrative proceedings are reviewable by the court anyway.
The Building Act is also affected by the changes as building authorities will be required to publish on their official notice boards and their websites (if any) a copy of planning and building permit applications (sans annexes) where the areas or structures concerned are subject to EIAs, and the applications must be made available to the general public from the date when the applicable proceedings started until the day they are concluded.
In addition, building authorities must discontinue proceedings if the competent (environmental) agency issues a binding opinion to the effect that the planning, building or occupancy permit proceedings were initiated at variance with the final opinion and the applicant failed to amend his application accordingly within the allotted grace period.
Appeals against a planning, building or occupancy permit will be able to be brought by those who were not a party to the original proceeding, but only on the basis that the permit is inconsistent with the contents of the decision issued under a special regulation. Once an appeal is filed, the person filing it becomes party to the proceedings and is entitled to require that the permits be reviewed by court. The building authority cannot issue a decision without having obtained the final report.
Administrative authorities are required to respect the findings of the EIA process in all follow-up permit proceedings, and to check project documents for compliance with EIA process findings.
The current regulations will continue to apply to EIA proceedings relating to a specific activity (or change in activity) begun before 1 January, 2015, if the proceedings have reached the scoping stage.
Scoping opinion issued to applicants about a proposed activity (or change in activity) before 1 January, 2015 will expire on 1 December, 2017 if the applicants do not submit a statement in response by 30 November, 2017 (except where the scoping opinion lays down a schedule).
The current regulations will continue to apply to any process that has not progressed beyond the screening stage before 1 January 2015. However, the new rules may be used to appeal against any planning, building or occupancy permits taking effect after 31 December, 2014.
Law: amendment to Act No. 24/2006 Coll. on the assessment of environmental impact; Aarhus Convention on the Access to Information, Public participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998;