Environmental Aspects for TEN-T

1. PREPARING A SUCCESSFUL PROJECT PROPOSALEnvironmental AspectsTEN-T 2012 Calls Info Day29.11.2012Anastasios NYCHAS DG.ENV.A3, Cohesion Policy and EIA/SEA Anastasios.Nychas@ec.europa.eu

2. EnvironmentalAspects for TEN-T General scope: High level of Protection of the environment Integration of environmental aspects into the TEN operations Legal Obligations: EU law on environment, mainlyenvironmental impact assessment,nature protection and water protection 2

3. Environmentallegislation most relative to TENs Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (SEA Directive) Directive 2011/92/EC (old 85/337/EC) on the assessment of the effects of certain public and private projects on the environment, as amended (EIA Directive) Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (Habitats Directive) Directive 2009/147/EC on the conservation of wild birds (Birds Directive) Directive 2000/60/EC (Water Framework Directive) 3

4. Strategic Environmental Assessment = SEA - Plans & programmes Environmental Impact assessment = EIA Projects Both directives concern the assessment of the effects on the environment Terminology

5. Environmental Assessment Policies Not Covered by legislation Plans & Programmes covered by SEA Directive (2001/42/EC) Projects covered by EIA Directive (2011/92/EU)

6. Environmental Assessment Water Framework Directive Policies Not Covered by legislation Habitats and Birds Directives Floods Directive Plans & Programmes covered by SEA Directive (2001/42) Projects (public - private) covered by EIA Directive (2011/92/EU) Landfill Directive Directive IPPC Directive

7. Environmental Assessment process not a document Beginning of process Elaboration of a project/plan Request for development consent/Adoption procedure-draft plan Information on environmental impact (Env.Impact Statement-EIS/Study)-Non technical summary Consultations –bothwith ENV Authorities+Public Decision (justification) Approval of Project/Plan End of process Information on decision made public

8. SEA Directive and the planning process (Art.4) • The environmental assessment must be carried out: • during preparationof the plan or programme • before adoptionof the plan or programme

9. SEA Directive When is it mandatory? (Art. 3) For plans and programmes: • prepared for agriculture, forestry, fisheries, energy, industry, transport, waste/ water management, telecommunications, tourism, town & country planning or land use AND which set the framework for future development consent of projects listed in the EIA Directive OR • that require an assessment under Article 6 or 7 of the Habitats Directive

10. (Art. 2.1) EIA DIRECTIVE:General objective, main characteristics • What does the EIA Directive apply to? • projects likely to have significant effects on the environment(by virtue, inter alia, of their nature, size and location) Physical works • What are these projects subject to? • a requirement for development consent • anassessment of their effects on the environment so that environment is protected • When? • before consent is given

11. (Art. 3) EIA DIRECTIVE:What assessment? The EIA must identify, describe, assess all likelydirectandindirectenvironmental effects of activities on • human beings, • fauna, flora, soil, water, air, climate, landscape, • material assets, cultural heritage • the interaction between those factors

12. Annex I projects Annex II projects Mandatory EIA “Screening” by Competent authorities to decide if an EIA is needed or not (Art. 4) EIA Directive: What projects?

13. EIA Directive: Transport Sector: Annex I-Points 7 and 8 7(a) Construction of lines for long-distance railway traffic and of airports with a basic runway length of 2 100 m or more; 7(b) Construction of motorways and express roads; 7(c) Construction of a new road of four or more lanes, or realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes, where such new road, or realigned and/or widened section of road would be 10 km or more in a continuous length. 8(a) Inland waterways and ports for inland-waterway traffic which permit the passage of vessels of over 1 350 tonnes; 8(b) Trading ports, piers for loading and unloading connected to land and outside ports (excluding ferry piers) which can take vessels of over 1 350 tonnes.

14. EIA: Annex II-Point 10: Infrastructure projects (c) Construction of railways and intermodal transhipment facilities, and of intermodal terminals (projects not included in Annex I); (d) Construction of airfields (projects not included in Annex I); (e) Construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I); (f) Inland-waterway construction not included in Annex I, canalization and flood-relief works; (h) Tramways, elevated and underground railways, suspended lines or similar lines of a particular type, used exclusively or mainly for passenger transport;

15. EIA DIRECTIVE: Important for the purpose of screening! Annex II, point 13: Any change or extension of projects listed in Annex I or Annex II, already authorized, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex I).

16. Projects in the Transport Sector not covered by the EIA Directive-no physical works: River Information Systems (RIS) and European Rail Traffic Management System (ERTMS) projects are, in principle, out of the scope of the EIA Directive-No physical works?

17. Nature Directives(Birds and Habitats) • Directive 2009/147/EC on the conservation of wild birds ("Birds" Directive) - Special Protection Areas (SPAs) • Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("Habitats" Directive) - Special Areas of Conservation (SACs) • SPAs and SACs constitute the European network of Natura 2000 17

18. Habitats Directive Article 6(3) and 6(4) of the Habitats Directive, which applies to all Natura 2000 sites, provides for an appropriate assessment-AA- of development proposals- PLANS/PROJECTS- which are likely to have a significant impact on Natura 2000 sites 18

19. Dealing with plans and projects(Art. 6.3/4 Habitats Directive, simplified) Step-by-step assessment of plans and projects affecting Natura 2000 sites(Art 6.3 & 6.4) Likely negative impact on Natura 2000 site? yes Appropriate Assessment If negative impact Alternatives? If no Overriding public interest? If yes Compensatory measures If priority habitat/species Commission Opinion required

20. Water Framework Directive Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy Aims at maintaining and improving the aquatic environment in the Community (mainly with the quality of the waters).

21. Water Framework Directive • Article 4.7 describes the conditions under which "new activities“, suchas infrastructures or works downgrading the status of water bodies can be accepted. • Article 4.7 requires mitigation measures (to minimise adverse effects) • If action causes deterioration to water status, steps taken to mitigate adverse effects and existence of their means to achieve objectives of the project are tobe explained 21

22. Application Form for 2012 Proposals Contribution to environmental policy objectives and Polluter pays principle Consultation of environmental authorities Environmental Impact Assessment (EIA Directive) Strategic Environmental Assessment (SEA Directive) Impact of the Action on Natura 2000 sites Additional environmental integration measures (audit, monitoring etc) Water Framework Directive (article 4.7)

23. A MAJOR ISSUE TO AVOID COMMON PROBLEMS:Consultation with environmental authorities

24. What to check in practice: Contribution to environmental policy objectives and polluter pays principle: Check general issues, like GHG, energy savings; biodiversity etc, as well as charges, tolls etc Environmental Impact Assessment (EIA Directive): Check if Annex I or II; if Annex I an EIA has to be carried out. If Annex II check if an EIA has been carried out or a formal screening (public) concludes no need for EIA

25. What to check in practice Environmental Impact Assessment (EIA Directive): If an EIA has been carried out make sure you have the following: A non-technical summary Information (if not in the final decision) about consultations with the public and specialized competent authorities (nature, water etc)-Check nature/water/other clearance The final decision (Development Consent) justifying the project approved with eventually compensation, mitigation or other measures as a result of the EIA process MATURE PROJECT

26. What to check in practice Beginning of process Elaboration of a project/plan Request for development consent/Adoption procedure-draft plan 1.Information on env.impact (EIS/Study)-Non technical summary 2.Consultations – with ENV Authorities+Public Decision (justification) Approval of Project/Plan End of process 3.Information on decision

27. What to check in practice: Strategic Environmental Assessment (SEA Directive): Check if an SEA has been carried out which includes the project in question-report accordingly-see relevance

28. What to check in practice: Beginning of process Elaboration of a project/plan Request for development consent/Adoption procedure-draft plan 1.Information on env.impact (EIS/Study)-Non technical summary 2.Consultations –with ENV Authorities+Public Decision (justification) Approval of Project/Plan End of process 3.Information on decision

29. What to check in practice: Nature Protection Directives: If during the EIA process or otherwise questions relating to nature protection are raised (Habitats and/or species): An Appropriate Assessment (AA-Article 6 of Habitats Directive) was required: It has to be carried out before the final approval decision as to take into account any mitigation/compensation measures Provide summary and necessary certificates from competent authorities (no significant impact or significant impact associated with measures etc) COMPENSATION/MITIGATION=PART OF THE PROJECT

30. What to check in practice: Nature Protection Directives: If during the EIA process or otherwise questions relating to nature protection are not important (Habitats and/or species) or no nature issues become apparent: No Appropriate Assessment (AA-Article 6 of Habitats Directive) is required: Provide necessary certificate from competent authorities (no significant impact or certain measures etc) COMPENSATION/MITIGATION=PART OF THE PROJECT

31. What to check in practice WATER FRAMEWORK DIRECTIVE: If during the EIA process or otherwise questions relating to WFD are raised Is there a risk for deterioration of water status? If NO: Appropriate declaration (authority?) If YES: Explain, mitigation measures etc and appropriate declaration COMPENSATION/MITIGATION=PART OF THE PROJECT

32. What to check in practice MATURE PROJECT (Where applicable) SEA Completed EIA completed; Nature assessments completed Water Framework Directive Assessments completed Final "Development Consent" issued eventually including mitigation/compensation measures MITIGATION/COMPENSATION/OTHER MEASURES=PART OF THE PROJECT

33. European Court of Justice – Case law • The interpretation of the EIA Directive is not static, but it is subject to interpretation by the ECJ. • Infringements procedure initiated by the Commission (Art.226 EC Treaty) or references by national courts (Art.234 EC Treaty). • Considerable body of case law, but need to apply judgments carefully. • ECJ rulings mainly concern the EIA but are also relevant for the SEA.

34. European Court of Justice – Case law • The EIA Directive has “awide scope and a broad purpose”. • Member States’ discretion is limited. • Consistent emphasis on the fundamental purpose of the Directive: projects likely to have significant environmental effects must undergo an EIA (you cannot simply say that "it is not likely"-need to justify. • Exemptions to be interpreted narrowly.

35. Transport projects-main problems • “Salami slicing” (splitting projects into sub-sections so that they fall below screening thresholds). • Project splitting and/or dividing projects up to reduce alternatives. • Modifications of existing projects (roads, railways, ports…).

36. Spain – C-227/01 (doubling of tracks) • Annex I.7 must be understood to include the doubling of an existing track – this is not a mere modification under Annex II. • That the case concerned a short section of a long distance route is not relevant. • The new track would obviously create significant new nuisances, so no need to prove the existence of concrete negative effects – likelihood is sufficient.

37. Abraham – C-2/07 (Liège airport) • An agreement between public authorities and a private undertaking is not itself a “project”. The national authorities must determine whether such an agreement constitutes a development consent. Two issues should be considered in that context: • whether that consent forms part of a procedure carried out in several stages involving a principal decision and implementing decisions and • whether account is to be taken of the cumulative effects of several projects whose impact on the environment must be assessed globally; projects may not be split in order to avoid EIA • Modifications to the infrastructure of an airport are a modification of the airport itself and is subject to a screening. • Projected increases in airport activity must be examined among the effects of modifications to its infrastructure.

38. References EIA Guidance: http://ec.europa.eu/environment/eia/eia-support.htm SEA Guidance: http://ec.europa.eu/environment/eia/sea-support.htm Nature 2000 http://ec.europa.eu/environment/nature/natura2000/index_en.htm WFD:http://ec.europa.eu/environment/water/water-framework/index_en.html WFD Article 4.7 http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/guidance_documents/documentn20_mars09pdf/_EN_1.0_&a=d

39. Thank You. (and good luck!)